The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary [3rd ed.] 0199641943, 9780199641949

Table of contents :
Contents
Tables of Cases xiii
Table of Conventions, Treaties, and International Instruments xli
Table of Comments, Recommendations, etc., of the Various
International Committees which Deal with Human Rights xlvii
Table of Abbreviations xlix
A Note on Style and Citation li
Part I: Introduction
1. Introduction 3
Part II: Admissibility Under the ICCPR
2. The ‘Ratione Temporis’ Rule 57
3. The ‘Victim’ Requirement 71
4. Territorial and Jurisdictional Limits 92
5. Consideration Under Another International Procedure 113
6. Exhaustion of Domestic Remedies 121
Part III: Civil and Political Rights
7. Right of Self-determination—Article 1 153
8. The Right to Life—Article 6 166
9. Freedom from Torture and Rights to Humane
Treatment—Articles 7 and 10 215
10. Miscellaneous Rights—Articles 8, 11, and 16 329
11. Freedom from Arbitrary Detention—Article 9 340
12. Freedom of Movement—Article 12 392
13. Procedural Rights Against Expulsion—Article 13 418
14. Right to a Fair Trial—Article 14 430
15. Prohibition of Retroactive Criminal Laws—Article 15 521
16. Right to Privacy—Article 17 533
00_Joseph220113OUK_pre.indd xi 7/4/2013 10:34:29 AM
xii Contents
17. Freedom of Thought, Conscience, and Religion—Article 18 562
18. Freedom of Expression—Articles 19 and 20 590
19. Freedoms of Assembly and Association—Articles 21 and 22 645
20. Protection of the Family—Article 23 666
21. Protection of Children—Article 24 701
22. Rights of Political Participation—Article 25 727
23. Rights of Non-discrimination—Articles 2(1), 3, and 26 759
24. Minority Rights—Article 27 832
25. The Right to a Remedy—Article 2(3) 867
Part IV: Alteration of ICCPR Duties
26. Reservations, Denunciations, Succession, and Derogations 885
Index 925

Citation preview

THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

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THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS Cases, Materials, and Commentary Third Edition

SARAH JOSEPH and MELISSA CASTAN

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3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Sarah Joseph and Melissa Castan 2013 The moral rights of the authors have been asserted First Edition published in 2000 Second Edition published in 2004 Third Edition published in 2013 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2013937905 ISBN 978–0–19–964194–9 Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Foreword It gives me great pleasure to provide this Foreword for the new edition of Sarah Joseph and Melissa Castan’s book on the International Covenant on Civil and Political Rights and the work of the Human Rights Committee. The Covenant has played an improbably large part in my life. I spent much of the late 1980s lobbying for its ratification by my own country, Ireland. We were successful, albeit with the then Attorney-General explaining that, since all was well at home, the purpose of ratification was pour encourager les autres. No matter, it was the ratification that mattered. By the early 1990s the task was to submit a shadow report at the time of consideration of Ireland’s initial report. That effort was surprisingly successful on a number of fronts. It not only gathered together a group of previously disparate voluntary groups but also injected human rights into public policy debates and framed a dialogue between the foreign ministry and civil society that has continued since. The Committee’s review occurred in 1993, at a time when no arrangements were yet in place for NGOs to brief the Committee. In that regard, I recall with some embarrassment such ploys of ours as turning up in hotel dining rooms to harangue unfortunate Committee members over breakfast. It was all to the good though, with the Committee’s Concluding Observations coming to effect notable changes for the protection of human rights—for instance by drawing international attention to the situation of imprisoned women. I spent the next 15 or so years working for the United Nations, mainly in field postings in conflict-affected countries. Here too, the Covenant had important roles to play. I recall how, in Sarajevo in 1994, while the city was still under siege, law professors at the university impressed on me that teaching and debate on human rights must carry on, regardless of the chaos, since the Covenant and the other human rights treaties must frame the ethics and values for a post-conflict settlement. These same academics played no small role in ensuring that reference to the Covenant was so prominent in the Dayton Peace Agreement. A few years later, in Sierra Leone, we presented the rebel leadership with an aide memoire identifying how the atrocities they were committing were at odds with the international standards. In large part we framed that note by reference to the Covenant. Years later I gave evidence for the prosecution on the basis of that document at the Sierra Leone Special Court. I also recall how the Covenant saved lives. In 1998, when a number of military officers were sentenced to death in Freetown, defence

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lawyers petitioned the Human Rights Committee under the Optional Protocol. The Committee issued an interim measures request that the executions be stayed. While the government in large part disregarded the request, it did commute the sentences of a small number of the soldiers. A senior government official told me that the commutations were in part as a result of the Committee’s intervention. Throughout my time with the UN I was impressed by the extent to which the findings of the Human Rights Committee framed the discussion points for the country visits of the Secretary-General and the High Commissioner for Human Rights. For instance, ratification of the Covenant by China has been a goal for successive High Commissioners. While this has yet to be achieved, debate on the Covenant has constituted one of the few platforms for human rights dialogue that China will tolerate. I was elected to the Human Rights Committee in 2004 and was to remain a member until 2012. While it is still too soon for me to evaluate that period, I do consider that it allowed me the privilege of working with some of the most talented and passionate of human rights defenders that I have ever encountered (in both the Committee and its overburdened but excellent secretariat). They were also notably productive, with every one of the 36 sessions in which I participated producing jurisprudential advances and procedural improvements. The jurisprudential advances are best exemplified by the new General Comments, 32, 33, and 34. General Comment 32 rendered coherent the relatively vast case law that had developed regarding article 14 and copper-fastened the protection of the right in such contexts as states of emergency. I had the honour of being the rapporteur for General Comment 34 on article 19 of the Covenant. Others will be the judge of whether we succeeded in reinforcing the rights of freedom of opinion and expression in the face of contemporary threats and challenges. However, the Committee was encouraged by its early reception by civil society and academics as well as by the supportive stance taken by many States. Numerous of the recent Views adopted under the Optional Protocol also reflect the Committee’s considered development of its interpretation of the Covenant. For instance, in a series of Korean cases, the Committee has reversed itself in identifying that freedom of religion or belief (article 18) embraces conscientious objection to military service (albeit I remained in the persistent minority that would locate such cases in the framework of the manifestation of religion or belief (article 18.3) rather than in the majority’s preferred article 18.1). Another jurisprudential development concerns the violation of human rights on the basis of sexual orientation or gender identity. It is to be welcomed that the Committee is now at ease with such cases and willing to consider them beyond just the categories of non-discrimination and privacy. Of the many procedural developments during the eight years of my membership I would mention just two. By far the most far-reaching is that of permitting those States that wish, to submit written responses to a set of Committee questions in

Foreword

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substitution for a periodic report. This option will have far-reaching effect for the work of the Committee and for harried government officials. It is also likely to be rolled out to other treaty bodies (it is already being implemented in the Committee Against Torture). Of course, LOIPR, as it is inelegantly known, has yet to be tested and it may diminish the breadth of engagement by the Committee with a given country situation, albeit it does represent an imaginative attempt to better focus the dialogue with States. The other notable procedural advance of recent years has been the codification and enhancement of arrangements for engagement with NGOs and national human rights institutions—no more need then for those breakfast-time ambushes. The use of Skype and other communication innovations is also revolutionizing the opportunities for engagement. Obviously, there are ways in which the Human Rights Committee can be improved and cognizance has also to be taken of its location within what has come to be recognized as a treaty body system, comprising the monitoring bodies for ten treaties. Much has been written on the challenges faced by this system and of the extent to which it can be characterized as being in crisis. It is that crisis that led me to initiate what has come to be known as the ‘Dublin Process’ (on the strengthening of the United Nations human rights treaty body system). In the period 2009–12 we achieved a lot in terms of diagnosing the core problems of the system and proposing recommendations for its reform. The High Commissioner for Human Rights took nearly all of these recommendations and put them for consideration by States and others. They are now being debated at informal meetings of the UN General Assembly. While, at time of writing, it is impossible to predict where the process will lead, it is clear that the Human Rights Committee and the other treaty bodies are at a pivotal moment in their history. It is no less clear that the problems of the system relate in large part to its chronic under-resourcing by UN Member States. By way of this rather self-indulgent peregrination, I have sought to observe the importance of the Covenant for the promotion and protection of human rights, as well as the ever-evolving role of the Human Rights Committee and the contemporary context of risk and opportunity. These are what set the context for the new book by Sarah Joseph and Melissa Castan. For many years now we have benefited from their writings on the Covenant. Previous editions of this book have served as authoritative reference works and Professor Joseph’s periodic commentary on Human Rights Committee cases, published in the Human Rights Law Review, have always been insightful. More than once they caused me to re-consider positions I had taken in the Committee. What distinguishes the writing here is the manner in which they succeed in balancing rigorous legal reasoning with an appreciation of the complex institutional and cultural contexts within which the Covenant is interpreted by the Committee. All of these qualities have been brought to bear for this new edition in which comprehensive stock of Committee practice is taken. The approach is always fresh and original. For instance, I particularly welcome the manner in which the more recent General Comments are cited and accorded the high interpretive importance for

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which they were intended. The work is all the more welcome given the remarkable dearth of regularly updated commentary on the law of the Covenant and the work of the Committee. With this new edition, Professor Joseph and Melissa Castan have done us a great service. MICHAEL O’FLAHERTY Professor of Human Rights and Director, Irish Centre for Human Rights; Chief Commissioner, Northern Ireland Human Rights Commission; Member of the Human Rights Committee 2004–12 Feb 2013

Preface It has been just on ten years since the second edition of our book on the International Covenant on Civil and Political Rights. The job of collating and writing the third edition has made us realize that ten years is rather too long to wait! However, it is also clear how much the Human Rights Committee’s case law has grown and matured, addressing complex issues such as conscientious objection, the allocation of fishing rights, free prior informed consent and indigenous peoples, extraterritorial obligations, and extraordinary rendition. This new edition includes a new chapter on the right to a remedy, given the significant evolution of that right in the last decade. It also significantly expands upon most of the existing chapters, such as Chapter 18 on freedom of expression, which now incorporates General Comment 34. We have decided to remove much of the material relating to the other UN human rights treaties, as that material has grown so much that it would crowd out jurisprudence under the actual ICCPR, and become quite a different book. Brief reference is still made to such material, and the case law of the Committee against Torture remains a key part of the chapter on torture, inhuman and degrading treatment, as well as some cases of the Committee against the Elimination of Racial Discrimination regarding hate speech. For reasons of limited space, we have omitted the appendix materials, which covered the texts of the Covenant and Optional Protocols, lists of General Comments, lists of cases, membership of the Human Rights Committee, and lists of States Parties. Thankfully, all of that material is now readily available via the internet, and we particularly recommend that readers visit the resources at the CCPR Centre () for further research. Of course, we must also thank the Office of the High Commissioner for Human Rights for making their extensive human rights material available to us. Readers will note that we have retained the referencing system we adopted in the first and second editions, which was modelled on the work of Professor Manfred Nowak in his groundbreaking CCPR Commentary. Cases decided up to June 2012 are included in this edition. Sarah has been primarily responsible for the updates in this edition. This edition would not have been possible without the parallel work of the Castan Centre for Human Rights Law in the Law Faculty at Monash University, reviewing recent

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UN human rights cases for the OUP subscription series, Oxford Reports in International Law. A number of people have played a huge role in that project, especially Erica Contini, Alex Pung, Sarah Austin, Andre Dao, Rajika Shah, Kris Gledhill, Alexander Phelan, and many many Castan Centre interns over the last six years. At OUP we must also thank Francesca Gibson, Amy Richards, and Jenny Townshend for their help and patience with our ORIL work, and of course our commissioning editor John Louth. Regarding work on the actual manuscript for this edition, thanks must go to Adam Fletcher for his keen eye and indefatigable research work, and, again at OUP, Merel Alstein and our copy-editor Barath Rajasekaran. We also acknowledge the groundwork of our former co-author Jenny Schultz. We must also thank the Faculty of Law, Dean Bryan Horrigan, and our former Dean Arie Freiberg, for their support for our work at Monash University. We also thank the excellent law library staff, as well as our wonderful colleagues and friends in the Castan Centre for Human Rights Law. Sarah must also thank the staff at the Faculty of Law at the Vreije University in Amsterdam, especially the Dean, Elies van Sliedregt, for their wonderful hospitality during the final stages of editing. Former Australian Human Rights Committee members the Hon Elizabeth Evatt AC, and Emeritus Professor Ivan Shearer AM RFD, gave us enormous support and encouragement for this book. Castan Centre patron and former High Court Justice Michael Kirby AC CMG has been a constant and enthusiastic supporter of this work, and we hope he is pleased that we have finally updated it. We are also very grateful to Professor Michael O’Flaherty, who has just completed his term as a member of the Committee, for his preface, including his very kind words about our work. And of course we must once again thank our families for their endless patience in this undertaking. We would like to specifically acknowledge the important role of two special people in each of our lives, Peter Rappolt (1933–2011) and Ron Castan (1939–99). Their absence from our lives is sorely felt, and we hope that the work in this book reflects some of their enduring influence upon us. SARAH JOSEPH MELISSA CASTAN March 2013

Contents Tables of Cases Table of Conventions, Treaties, and International Instruments Table of Comments, Recommendations, etc., of the Various International Committees which Deal with Human Rights Table of Abbreviations A Note on Style and Citation

xiii xli xlvii xlix li

Part I: Introduction 1. Introduction

3

Part II: Admissibility Under the ICCPR 2. 3. 4. 5. 6.

The ‘Ratione Temporis’ Rule The ‘Victim’ Requirement Territorial and Jurisdictional Limits Consideration Under Another International Procedure Exhaustion of Domestic Remedies

57 71 92 113 121

Part III: Civil and Political Rights 7. Right of Self-determination—Article 1 8. The Right to Life—Article 6 9. Freedom from Torture and Rights to Humane Treatment—Articles 7 and 10 10. Miscellaneous Rights—Articles 8, 11, and 16 11. Freedom from Arbitrary Detention—Article 9 12. Freedom of Movement—Article 12 13. Procedural Rights Against Expulsion—Article 13 14. Right to a Fair Trial—Article 14 15. Prohibition of Retroactive Criminal Laws—Article 15 16. Right to Privacy—Article 17

153 166 215 329 340 392 418 430 521 533

Contents

xii 17. 18. 19. 20. 21. 22. 23. 24. 25.

Freedom of Thought, Conscience, and Religion—Article 18 Freedom of Expression—Articles 19 and 20 Freedoms of Assembly and Association—Articles 21 and 22 Protection of the Family—Article 23 Protection of Children—Article 24 Rights of Political Participation—Article 25 Rights of Non-discrimination—Articles 2(1), 3, and 26 Minority Rights—Article 27 The Right to a Remedy—Article 2(3)

562 590 645 666 701 727 759 832 867

Part IV: Alteration of ICCPR Duties 26. Reservations, Denunciations, Succession, and Derogations

885

Index

925

Tables of Cases All references are to paragraph numbers. The references in bold indicate that the case is fully or partly extracted at the particular paragraph number. Human Rights Committee AD v Canada (78/80) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.27 AIE v Libya Arab Jamahiriya (457/91) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03 AJ v G v The Netherlands (1142/02) . . . . . . . . . . . . . . . . . . . . . . . . . 9.125, 15.03 AK and AR v Uzbekistan (1233/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.50 A Newspaper Publishing Co v Trinidad and Tobago (360/89) . . . . . . . . . . . . 3.17 A Publication and Printing Co v Trinidad and Tobago (361/89) . . . . . . . . . . 3.17 A v Australia (560/93) . . . . . 1.61, 3.04, 6.25, 11.09, 11.11, 11.24, 11.25, 11.26, 11.40, 11.85, 11.86, 11.91, 11.92, 11.93–11.98, 12.15 A v New Zealand (754/97) . . . . . . . . . . . . . . . . . . . . . . 11.09, 11.21, 11.22, 11.77 A v S (1/76). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04 AP v Italy (204/86) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.214 APA v Spain (433/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.12 APL-v dM v The Netherlands (478/91) . . . . . . . . . . . . . . . . . . . . . . . 23.29, 23.44 ARJ v Australia (692/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.214 ARS v Canada (91/81) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.39, 15.07 ARU v The Netherlands (509/92) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.86 Aalbersberg et al v The Netherlands (1440/05) . . . . . . . . . . . . . . . . . . . . . . . 8.86 Äärelä And Näkkäläjärvi v Finland (779/97) . . . . . . . . . . . . . 14.39, 14.40–14.41, 14.79, 24.32, 24.33, 24.55 Aber v Algeria (1439/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.78 Aboushanif v Norway (1542/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.197 Aboussedra v Libyan Arab Jamahiriya (1751/08) . . . . . . . . . . 8.29, 9.145, 10.22 Ackla v Togo (505/92) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.04 Adam v Czech Republic (586/94). . . . . . . . . . . 23.18, 23.22, 23.29, 23.65, 23.73 Adonis v Philippines (1815/08) . . . . . . . . . . . . . . . . . . . . . . . 1.20, 14.143, 18.46 Aduayom et al v Togo (422–4/90) . . . . . . . . . 2.03, 2.20, 11.101, 11.103, 11.104, 18.09, 22.63, 22.66 Aduhene and Agyeman v Germany (1543/07) . . . . . . . . . . . . . . . . . . . . . . . . 6.12 Ahani v Canada (1051/02) . . . . . . . . . . . . . . . . . . . . . . 9.107, 11.30, 11.76, 13.24

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Akhadov v Kyrgyzstan (1503/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.54, 14.81 Akwanga v Cameroon (1813/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07, 14.57 Albareda v Uruguay (1637/07, 1757 and 1765/08) . . . 22.70, 22.72, 23.63, 23.64 Alberta Unions Case (118/82) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.77 Aliboev v Tajikistan (985/01), . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.70 Althammer v Austria (998/01) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.09, 5.11, 23.41 Alzery v Sweden (1416/05) . . . . . . . . . . . 1.67, 8.73, 9.13, 9.38, 9.104, 9.105–9. 107, 9.166, 13.23, 13.25 Amirov v Russian Federation (1447/06). . . . . . . . . . . . . . . . . . . . . . . . 8.21, 9.165 Amirova v Russian Federation (1780/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.70 Amundson v Czech Republic (1508/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.66 Andersen v Denmark (1868/09) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.81 Anderson v Australia (1367/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.208 Angel Estrella v Uruguay (74/80) . . . . . . . . . . . . . . . . . . . . . . . 9.49, 9.221, 16.32 Anton v Algeria (1424/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.14 Aouabdia v Algeria (1780/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.29, 9.145 Aouf v Belgium (1010/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.170 Arenz et al v Germany (1138/02) . . . . . . . . . . . . 4.22, 17.24, 17.25, 19.33, 22.10 Arias v Spain (1531/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.85 Arredondo v Peru (688/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.101 Arutyunyan v Uzbekistan (917/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.218, 14.70 Arzuaga Gilboa v Uruguay (147/83) . . . . . . . . . . . . . . . . . . . . . 6.20, 9.49, 9.218 AS and LS v Australia (490/92) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03 AS v Canada (68/80). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.10 Ashurov v Tajikistan (1348/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.46, 14.70 Aster v Czech Republic (1575/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.74 Atasoy and Sarkut v Turkey (1853–54/08) . . . . . . . . . . . . . . . 17.13, 17.45, 17.48 Atkinson v Canada (573/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.11 Aumeeruddy-Cziffra et al v Mauritius (35/78) see Mauritian Women’s Case (35/78) Avadnov v Azerbaijan (1633/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.21 Avellanal v Peru (202/86) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.20, 14.32, 14.35 BdB v The Netherlands (273/88) . . . . . . . . . . . . . . . . . . . . . . . . 10, 22.64, 23.122 Baban v Australia (1014/01) . . . . . . . . . . . . . . . 11.26, 11.94, 11.98, 18.11, 18.62 Babkin v Russian Federation (1310/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.211 Baboeram et al v Suriname (146, 148–154/83) . . . . . . . . . . . . . . . . . . . 5.03, 8.17 Bahamonde v Equatorial Guinea (468/91) . . . . . . . . . . 11.04, 14.30, 14.35, 14.49 Bailey v Jamaica (334/1988) . . . . . . . . . . . . . . . . . . . . . . . . . 9.50, 9.210, 14.150 Bailey v Jamaica (709/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.56, 14.165 Bakhtiyari v Australia (1069/02) . . . . . . . . . . . . . . . . . . . . . . 11.26, 11.98, 21.11 Balaguer Santacana v Spain (417/90) . . . . . . . . . . . . . . 20.09, 20.11, 20.63, 20.66 Ballantyne et al v Canada (359 and 385/89) . . . . . . . . . . . 1.29, 3.19, 3.47, 18.10, 18.39, 18.40–18.41, 23.45, 23.61, 23.89, 23.90, 24.07, 24.8–24.9, 24.51

Tables of Cases

xv

Banda v Sri Lanka (1426/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.177 Bandajevski v Belarus (1100/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04, 14.188 Bandaranayake v Sri Lanka (1376/05) . . . . . . . . . . . . . . . . . . 14.13, 14.50, 22.69 Barcaiztegui v Spain (1019/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.10 Barney v Colombia (1298/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.98 Barrett and Sutcliffe v Jamaica (270, 271/88) . . . . . . . . . . . . . . . . . . . . . . . . 9.80 Bartolomeu v Portugal (1783/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.18, 23.29 Barzhig v France (327/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.25, 14.178 Bashasha v Libyan Arab Jamahiriya (1776/08) . . . . . . . . . . . . . . . . . . . . . . 9.145 Basso v Uruguay (1887/09) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.69 Baumgarten v Germany (960/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.17, 15.18 Bautista de Arellana v Colombia (563/93) . . . . . . . . . . . . . . . . . . . . . . . 8.23, 8.26 Bazarov v Uzbekistan (959/00). . . . . . . . . . . . . . . . . . . . . . . . . 9.70, 9.158, 14.80 Bazzano v Uruguay (5/77) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.17 Belyatsky v Belarus (1296/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.18 Belyazeka v Belarus (1772/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.07 Ben Said v Norway (767/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.88 Benaziza v Algeria (1588/07) . . . . . . . . . . 8.29, 8.31, 9.145, 10.22, 11.105, 25.25 Benhadj v Algeria (1173/03). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.57 Benitez v Paraguay (1829/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.10, 9.47, 25.12 Benjamin Manuel v New Zealand (1385/05) . . . . . . . . . . . . . . . . . . . . . . . . 11.38 Bennett v Jamaica (590/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.206 Berry v Jamaica (330/88) . . . . . . . . . . . . . . . . . . . . 11.83, 14.137, 14.166, 14.189 Berterretche Acosta v Uruguay (162/83) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.49 Beydon v France (1400/05) . . . . . . . . . . . . . . . . . . . . . . . 3.15, 3.18, 22.17, 22.18 Bhullar v Canada (982/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.12 Bickaroo v Jamaica (555/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.83 Bithashwiwa and Tshisekedi v Zaire (242–2/87) . . . . . . . . . . . . . . . . . . . . . 12.04 Blaga v Romania (1158/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.123 Blaine v Jamaica (696/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.206 Blanco v Nicaragua (328/88) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.38, 9.210, 11.17 Blazek et al v Czech Republic (857/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.66 Bleier v Uruguay (30/78) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.28, 9.55 Blom v Sweden (191/85) . . . . . . . . . . . . . . . . . . 5.07, 23.18, 23.29, 23.81, 23.81 Bodrozic v Serbia (1180/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.44 Boimurodov v Tajikistan (1042/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.144 Bolaños v Ecuador (238/87) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.17, 11.100 Boodoo v Trinidad and Tobago (721/96) . . . . . . . . . . . . . . . . 9.207, 17.16, 26.42 Bordes and Temeharo v France (645/95) . . . . . . . . . . . . . . . 3.45, 7.24, 8.85, 8.87 Borisenko v Hungary (852/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.54, 14.153 Borzov v Estonia (1136/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.95, 13.22, 23.75 Boucherf v Algeria (1196/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.145 Bozize v Central African Republic (428/1990) . . . . . . . . . . . . . . . . . . . . . . 9.210 Brandsma v The Netherlands (977/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.03 Brinkhof v The Netherlands (402/90) . . . . . . . . . . . . . . . . . . . . . . . . . . 8.86, 23.07

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Broeks v The Netherlands (172/84) . . . 19.29, 23.08, 23.14, 23.15, 23.21–23.23, 23.52, 23.78 Broeks, Zwaan-de-Vries v The Netherlands (182/84) . . . . . . . . . . . . . . . . . 23.18 Brok and Brokova v Czech Republic (774/97) . . . . . . . . . . . . . . . . . . . . . . . 23.69 Brough v Australia (1184/03) . . . . . 6.18, 9.149,9.202, 9.237, 9.238, 16.40, 21.14 Brown and Parish v Jamaica (665/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.55 Brown v Board of Education 347 US 483 (1954). . . . . . . . . . . . . . . . . . . . . 23.11 Brown v Jamaica (775/97) . . . . . . . . . 8.56, 9.132, 9.209, 14.136, 14.137, 14.165 Brown v Namibia (1591/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.57 Bruges v Colombia (1641/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.198 Brun v France (1453/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.78, 22.18 Bryhn v Norway (789/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.191 Buckle v New Zealand (858/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.38, 21.38 Burrell v Jamaica (546/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.08, 8.35, 8.53 Busyo et al v Democratic Republic of the Congo (933/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.50, 14.51, 22.69 Butovenko v Ukraine (1412/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.62 Bwalya v Zambia (314/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04, 22.42, 23.18 Byahuranga v Denmark (1222/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.100 C v Australia (900/99). . . . . . . . . . . . . 6.07, 9.31, 9.73, 9.74, 9.101, 9.116, 11.11, 11.25, 11.26, 11.93, 11.94–11.98 CBD v The Netherlands (394/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.01, 8.86 CF v Canada (118/81) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08, 6.45, 6.46, 6.48 CLD v France (439/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.178, 26.11 Cabal and Pasini Bertran v Australia (1020/02) . . . . . . . . . . . . . . 4.22, 8.40, 9.45, 9.199, 9.217, 26.29 Cadoret and Le Bihan v France (221/87, 323/88). . . . . . . . . . . . . . . 14.178, 18.12 Cagas, Butin and Astillero v Philippines (788/97) . . . . . . . . . . . . . . . . . . . 14.111 Campbell v Jamaica (248/87) . . . . . . . . . . . . . 6.29, 8.53, 14.136, 14.163, 14.168 Campbell v Jamaica (618/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.206 Canepa v Canada (558/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.125, 12.39, 20.25 Cañón García v Ecuador (319/1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.52 Capellades v Spain (1211/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.198 Carballal v Uruguay (33/78) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.17, 14.128 Cariboni v Uruguay (159/83) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.49 Carpo et al v Philippines (1077/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.57, 8.59 Casanovas v France (441/90) . . . . . . . . . . . . . . . 5.11, 14.12, 14.15, 14.16, 14.95 Casariego v Uruguay (56/79) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.17 Castaño López v Spain (1313/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.25, 23.30 Castell-Ruiz v Spain (1164/03). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.29 Cavalcanti Araujo-Jongens v The Netherlands (418/90) . . . . 23.18, 23.29, 23.43 Celepli v Sweden (456/91) . . . . . . . . . . . 11.10, 12.03, 12.13, 12.14, 12.30, 12.46 Celis Laureano v Peru (540/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04, 9.145 Chadee v Trinidad and Tobago (813/98). . . . . . . . . . . . . . . . . . . . . . . . . . . 14.108

Tables of Cases

xvii

Chadzjian v The Netherlands (1494/06) . . . . . . . . . . . . . . . . . . . . . . . 13.07, 14.17 Champagnie v Jamaica (445/91) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.55 Chan v Guyana (913/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.57, 14.120, 14.163 Chaplin v Jamaica (596/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.209 Cheban et al v Russia (790/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.29 Chebotareva v Russian Federation (1866/09) . . . . . . . . . . . . . . . . . . . . . . . . 19.07 Chen v The Netherlands (1609/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.21 Chihoub v Algeria (1811/08) . . . . . . . . . . . . . . 8.33, 9.145, 10.22, 11.105, 21.14 Chikunov v Uzbekistan (1034/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.62 Chira Vargas Machuca v Peru (906/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.69 Chisanga v Zambia (1132/02) . . . . . . . . . . . . . . . . . . . 6.04, 8.48, 8.57, 8.63, 9.88 Chongwe v Zambia (821/98) . . . . . . . . . . . . . . . . . . . . . . . . . . 8.15, 11.04, 11.06 Cifuentes v Chile (1536/06) . . . . . . . . . . . . . . . . . . . . . . . . . 1.98, 2.12, 2.13, 2.17 Clive Johnson v Jamaica (592/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.86 Cochet v France (1760/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.13 Coeriel and Aurik v The Netherlands (453/91). . . . . . . . . . . . 16.03, 16.13, 17.36 Coleman v Australia (1157/03) . . . . . . . . . . . . . . . . . . . . 1.29, 18.58, 18.59, 19.03 Collins v Jamaica (356/89) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.68, 14.165 Compass v Jamaica (375/89). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.170 Conde Conde v Spain (1325/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.198 Coordinamento v Italy (163/84) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.14 Cornelis van Hulst v The Netherlands (903/00) . . . . . . . . . . . . . . . . . . . . . . 16.37 Correia de Matos v Portugal (1123/02) . . . . . . . . . . . . . . . . . . 1.74, 1.97, 14.151 Costa v Spain (1745/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.09, 22.31 Cox v Canada (539/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.02, 9.83, 9.96, 14.71 Crippa et al v France (993–5/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.43 Crochet v France (1777/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.17, 6.11 Croes v The Netherlands (164/84) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.36, 8.25 Cubas Simones v Uruguay (70/80) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.218 Currie v Jamaica (377/89) . . . . . . . . . . . . . . . . . 6.29, 14.34, 14.35–14.36, 14.160 Czernin v Czech Republic (823/98) . . . . . . . . . . . . . . . . . . . . . . . . . . 1.137, 14.83 Cziklin v Canada (741/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.31 D and E v Australia (1050/02) . . . . . . . . . . . . . . . . . . . . . . . . 11.26, 11.98, 21.10 Dahanayake v Sri Lanka (1331/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.77, 25.22 Danning v The Netherlands (180/84) . . . . . . . . . . . . . . 20.09, 23.18, 23.29, 23.77 Dauphin v Canada (1792/08) . . . . . . . . . . . . . . . . . . . . . . . . . 9.103, 20.27, 20.68 De Bouton v Uruguay (37/78) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.17 De Clippele v Belgium (1082/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.60 De Gallicchio and Vicario v Argentina (400/90) . . . . . . . . . . . . . . . . 21.08, 21.56 De León Castro v Spain (1388/05) . . . . . . . . . . . . . . . . . . . . . 10.16, 11.39, 15.10 Dean v New Zealand (1512/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.34, 11.82 Debreczeny v The Netherlands (500/92) . . . . . . . . . . . . . . . . . . . . . . 22.47, 23.80 Deidrick v Jamaica (619/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.50 Deisl v Austria (1060/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.95

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Delgado Páez v Colombia (195/85) . . . . 1.128, 4.22, 11.03, 11.04, 11.06, 17.37, 17.53, 18.70, 22.63, 22.74 Deolall v Guyana (912/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.70, 26.44 Derksen and Bakker v The Netherlands (976/01) . . . . . 23.19, 23.29, 23.47, 23.79 Dermit Barbato v Uruguay (84/81) . . . . . . . . . . . . . . . . . . . . 6.20, 8.08, 8.36, 8.37 Des Fours Walderode and Kammerlander v Czech Republic (747/97) . . . . 23.66 Desmond Taylor v Jamaica (705/1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.34 Dias v Angola (711/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04 Diergaardt v Namibia (760/97) . . . . . . . . . . . . . 7.25, 14.178, 18.42, 22.05, 23.45, 23.61, 24.25, 24.50 Dimitrov v Bulgaria (1030/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.16 Dimkovich v Russian Federation (1343/05) . . . . . . . . . . . . . . . . . . . . . . . . 14.170 Dissanayake v Sri Lanka (1373/05) . . . . . . . . . . . . . . . 11.42, 11.43, 18.55, 22.43 Dixit v Australlia (978/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.26 Djebrouni v Algeria (1781/08) . . . . . . . . . . . . . . . . . . . . . . . . . 8.33, 9.145, 25.26 Dominguez v Paraguay (1828/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.10 Domukovsky et al v Georgia (623–624, 626–627/95) . . . . . . 9.49, 11.12, 14.148, 14.178, 14.188 Donskov v Russian Federation (1149/02). . . . . . . . . . . . . . . . . . . . 14.189, 14.191 Douglas, Gentles and Kerr v Jamaica (352/89) . . . . . . . . . . . . . . . . 14.34, 14.193 Dragan Dimitrijevic v Serbia and Montenegro (207/02) . . . . . . . . . . . . 9.23, 9.24 Drake and Julian v New Zealand (601/94) . . . . . . . . . . . . . . . . . . . . . 23.32, 23.80 Dranichnikov v Australia (1291/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.94 Drbal v The Czech Republic (498/92) . . . . . . . . . . . . . . . . . . . 6.42, 20.62, 21.30 Drescher Caldas v Uruguay (43/79) . . . . . . . . . . . . . . . . . . . . . . . . . 11.45, 14.128 Drobek v Slovakia (643/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.67, 23.70 Dudko v Australia (1347/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.23, 14.191 Dugin v Russian Federation (815/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.70 Dumont de Chassart v Italy (1229/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.47 Dumont v Canada (1467/06). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.206, 14.209 Dunaev v Tajikistan (1195/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.54 EB v New Zealand (1368/05) . . . . . . . . . . . . . . . . . . . . . . . . . . 3.34, 14.93, 20.40 ECW v The Netherlands (524/92) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.86 EMEH v France (409/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.32 Edwards v Jamaica (529/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.132 EHP v Canada (67/80) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.38, 6.22, 8.76 EW et al v The Netherlands (429/90) . . . . . . . . . . . . . . . . . . . . . . 3.13, 3.44, 8.85 El Abani v Libyan Arab Jamahiriya (1640/07) . . . . 3.07, 5.04, 8.29, 10.22, 14.57 El Alwani v Libyan Arab Jamahiriya (1295/04) . . . . . . . . . . . . . . . . . . . .32, 9.145 El Dernawi v Libyan Arab Jamahiriya (1143/02) . . . . . . . . . . 12.19, 20.23, 21.37 El Ghar v Libyan Arab Jamahiriya (1107/02). . . . . . . . . . . . . . . . . . . . 4.13, 12.20 El Hagog v Libya (1755/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.27, 9.142 El Hassy v Libyan Arab Jamahiriya (1422/05) . . . . . . . . . . . . 8.30, 9.145, 11.105 El Hichou v Denmark (1554/07). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.35, 21.36

Tables of Cases

xix

El-Megreisi v Libyan Arab Jamahiriya (440/90) . . . . . . . . . . . . . . . . . 9.142, 9.210 Elahie v Trinidad and Tobago (553/93) . . . . . . . . . . . . . . . . . . . . . . . 9.209, 9.224 Ellis v Jamaica (276/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.29 Engo v Cameroon (1397/05). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.107, 14.147 Escolar v Spain (1156/03). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.199 Eshonov v Uzbekistan (1225/03) . . . . . . . . . . . . . . . . . . . . 8.12, 8.19, 8.37, 9.164 Estevill v Spain (1004/01). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.200 Estrella v Uruguay (74/80) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.104, 14.148 Evans v Trinidad and Tobago (908/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.20 Everett v Spain (961/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.18 Fabrikant v Canada (970/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.40, 9.230 Fábryová v Czech Republic (765/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.123 Fals Borda et al v Colombia (46/79). . . . . . . . . . . . . . . . . . . . . . . . . . 14.56, 14.57 Fanali v Italy (75/80) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07 Fardon v Australia (1629/07) . . . . . . . . . . . . . . . . . . . . 11.35, 11.36, 14.212, 15.10 Faure v Australia (1036/01) . . . . . . . . . . . . . . . . . . . . . . 1.26, 10.06, 25.09, 25.10 Faurisson v France (550/93) . . . . . . . . 1.74,1.84, 6.25, 6.28, 18.33, 18.84, 18.90, 18.91–18.93 Fei v Colombia (514/92) . . . . . . . . . . . . . . . . . . . . . . . . . 3.24, 14.21, 14.94, 20.65 Fernandes et al v The Netherlands (1513/06) . . . . . . . . . . . . . . . . . . . . . . . . 20.34 Fernández v Spain (1396/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.11, 14.16 Fernando v Sri Lanka (1189/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.107, 11.41 Fijalkowska v Poland (1061/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.21, 11.87 Filipovich v Lithuania (875/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.09, 15.14 Fillacier v France (1434/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.57 Fillastre and Bizoarn v Bolivia (336/88). . . . . . . . . . . . . . . . . . 1.133, 6.33, 11.63 Foin v France (666/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.79, 23.29, 23.58 Forbes v Jamaica (649/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.206 Francis v Jamaica (320/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.51, 9.210 Francis v Jamaica (606/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.84 Francis v Trinidad and Tobago (899/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.208 Freemantle v Jamaica (625/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.54, 11.100 Fuenzalida v Ecuador (480/91) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.174 GB v France (348/89) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.14, 26.11 GE v Germany (1789/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.14 GS v Jamaica (369/89) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.63 GT v Canada (420/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.28 Gallego Díaz v Spain (988/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.28 Gallimore v Jamaica (680/96) . . . . . . . . . . . . . . . . . . . . . . . . . 6.29, 9.206, 14.150 García Pons v Spain (454/91) . . . . . . . . . . . . . . . . . . . . . . . . . . 14.14, 23.18, 23.80 Gauthier v Canada (633/95) . . . . . . . . . . . . . . . . . . . . . 18.22, 18.61, 19.31, 19.36 Gavrilin v Belarus (1342/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.14 Gelazauskas v Lithuania (836/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.192 Gerardus Strik v The Netherlands (1001/01) . . . . . . . . . . . . . . . . . . . . . . . . 14.03

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Gillot et al v France (932/00) . . . . . . . . . . . . . . . . . . . . . . . 1.84, 7.07, 7.08, 22.32 Giri v Nepal (1761/08) . . . . . . . . . . . . . . . . . 1.133, 9.26, 9.49, 9.68, 9.203, 26.69 Giry v Dominican Republic (193/85) . . . . . . . . . . . . . . . . . . . 11.17, 13.05, 13.25 Glaziou v France (452/91) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.10 Glenford Campbell v Jamaica (248/87) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.136 Gobin v Mauritius (787/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.57, 1.56 Gomariz Valera v Spain (1095/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.97, 14.198 Gómez Casafranca v Peru (981/01) . . . . . . . . . . . . . . . . . . . 11.17, 14.101, 15.12 Gómez Vazquez v Spain (701/96) . . . . . . . . . . . . . . . . . . . . . . . 3.08, 3.28, 14.188 Gonçalves et al v Portugal (1783/08) . . . . . . . . . . . . . . . . . . . . . . . . . 23.18, 23.29 González del Río v Peru (263/87) . . . . . . . . . . . . . . . . . 12.22, 12.30, 14.67, 14.94 González v Argentina (1458/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.32 Gonzalez v Guyana (1246/04) . . . . . . . . . . . . . . . . . . . . . . . . 14.13, 14.94, 20.36 Gordon v Jamaica (237/87) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.170 Gorji-Dinka v Cameroon (1134/02) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.10, 12.03 Goyet v France (1746/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.11 Grant v Jamaica (353/88) . . . . . . . . . . . . . . . . 6.09, 11.49, 11.50, 14.121, 14.172 Gridin v Russian Federation (770/97). . . . . . . . . . . . 11.12, 14.76, 14.107, 14.117 Griffin v Spain (493/92) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.14, 9.204, 11.50 Grille Motta et al v Uruguay (11/77) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.20, 9.49 Grioua v Algeria (1327/04) . . . . . . . . . . . . . . . . . . . . . . . . . . 9.145, 10.22, 11.105 Gryb v Belarus (1316/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.07 Guerra de la Espriella v Colombia (1623/07) . . . . . . . . . . . . . . . . . . . . . . . . 14.97 Guesdon v France (219/86) . . . . . . . . . . . . . . . . . . . . . . . . . . 14.178, 18.12, 18.41 Gueye et al v France (196/85). . . . . . . . . . . . . . . . 2.09, 2.17, 23.18, 23.29, 23.76 Gunan v Kyrgyzstan (1545/07) . . . . . . . . . . . . . . . . . . . . . . . . . . 8.52, 8.53, 14.70 Gunaratna v Sri Lanka (1432/05) . . . . . . . . . . . . . . . . . . 1.65, 9.177, 11.04, 25.23 Gutiérrez Vivanco v Peru (678/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.101 HAD v Switzerland (216/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.111 HC v Jamaica (383/89) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.166 HCMA v The Netherlands (213/86) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.26, 9.186 HS v France (184/84) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.35, 6.36 HTB v Canada (534/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.189 Haedj v The Netherlands (297/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.32 Hamida v Canada (1544/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.118 Hamilton v Jamaica (616/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.202, 9.231 Hammel v Madagascar (155/83) . . . . . . . . . . . . . . . . . . . . . . . 11.73, 11.83, 13.14 Hankle v Jamaica (710/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.136 Haraldsson and Sveinsson v Iceland (1306/04) . . . . . . . 1.75, 23.07, 23.18, 23.71 Hartikainen v Finland (40/78). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.14, 17.51 Harward v Norway (451/91) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.125, 26.29 Hendricks v Guyana (838/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.165 Hendricks v The Netherlands (201/85) . . . . . . . . . . . . . . 1.75, 6.34, 20.07, 20.58, 20.59–20.60, 20.66

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Hendriks v The Netherlands (201/85). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.65 Henry and Douglas v Jamaica (571/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.136 Henry v Jamaica (230/87) . . . . . 6.10, 6.29, 8.53, 14.121, 14.166, 14.193, 14.196 Henry v Trinidad and Tobago (752/97). . . . . . . . . . . . . . . . . . . 9.52, 9.206, 14.34 Hernandez v Philippines (1559/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03 Herrera Rubio v Colombia (161/83) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.18, 9.49 Hertzberg et al v Finland (61/79) . . . . . . . . . . . . . . . . . . 3.14, 12.30, 16.49, 18.68 Hesse v Australia (1087/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.29, 23.29 Hibbert v Jamaica (293/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.29 Higginson v Jamaica (792/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.128 Hill and Hill v Spain (526/93) . . . . . . . . . . . . . . 3.08, 9.153, 9.228, 11.51, 11.68, 14.132, 14.133, 14.151 HM v Sweden (CRPD 3/11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.38 Holland v Ireland (593/1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02 Hoofdman v The Netherlands (602/94) . . . . . . . . . . . . 20.09, 23.18, 23.29, 23.78 Hopu and Bessert v France (549/93) . . . . . . . . 16.05, 20.06, 20.14, 24.05, 24.39, 26.13, 26.25, 26.29 Howard v Canada (879/99) . . . . . . . . . . . . . . . . . . . . . . . . 1.51, 6.04, 24.22, 24.34 Howell v Jamaica (798/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.82, 9.206 Hudoyberganova v Uzbekistan (931/00). . . . . . . . . . . . . . . . . 17.14, 17.17, 17.19 Hussain and Singh v Guyana (862/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.57 Hussain v Mauritius (980/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.136, 14.164 HvdP v The Netherlands (217/86) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.25, 5.01 Hylton v Jamaica (407/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.50 Hylton v Jamaica (600/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.79, 6.29, 9.80 IM v Italy (266/87) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.26 IP v Finland (450/91) . . . . . . . . . . . . . . . . . . . . . . . . . 14.47, 14.89, 14.187, 16.44 IS v Belarus (1994/10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.07, 14.86, 15.03 Idiev v Tajikistan (1276/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.171, 14.179 Ignatane v Latvia (884/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.49 Ilombe and Shandwe v Democratic Republic of the Congo (1177/03) . . . . 11.47 Inostroza et al v Chile (717/96) . . . . . . . . . . . . . . . . . . . . 2.11, 3.14,22.71, 25.07 Inostroza Solís v Peru (1016/01). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.64 Irving v Australia (880/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.208 Isaev and Karimov v Uzbekistan (1163/03) . . . . . . . . . . . . . . . . . . . . . . 3.30, 8.54 Iskandarov v Tajikistan (1499/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.140 Ismailov v Uzbekistan (1769/08) . . . . . . . . . 11.46, 11.51, 11.57, 14.148, 14.171 Israil v Kazakhstan (2024/11) . . . . . . . . . . . . . . . . . . . . . . . . . . 8.73, 9.105, 11.13 Izquierdo v Uruguay (73/80) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.128 J v K and CMG v K-S v The Netherlands (483/91) . . . . . . . . . . . . . . . . . . . 17.49 JAMB-R v The Netherlands (477/91) . . . . . . . . . . . . . . . . . . . . . . . . . 23.29, 23.44 JB et al v Canada (118/82) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.79, 19.24, 19.36 JHW v The Netherlands (501/92) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.20, 23.21 JK v Canada (174/84) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.63

xxii

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JL v Australia (491/92) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.08, 2.19 JM v Jamaica (165/84) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.35 JO et al v Belgium (1417/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.86 JP v Canada (446/91) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.49 JPK v The Netherlands (401/90). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.86 JRT and the WG Party v Canada (104/81) . . . . . . . . . . . . . . . . . 3.16, 6.16, 18.83 JS v New Zealand (1752/08). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.78 Jacobs v Belgium (943/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.67, 23.50, 23.94 Jahelka v Czech Republic (1583/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.57 Jalloh v The Netherlands (794/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.29, 21.09 Jansen-Gielen v The Netherlands (846/99). . . . . . . . . . . . . . . . . . . . . . . . . . 14.77 Jaona v Madagascar (132/82) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.09 Järvinen v Finland (295/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.79, 23.29, 23.57 Jayawardene v Sri Lanka (916/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05, 11.06 Jazairi v Canada (958/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.75, 23.99 Jegatheeswara Sarma v Sri Lanka (950/00) . . . . . . . . . . . . . . . . . . . . . 1.108, 9.69 Jensen v Australia (762/97). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.31, 9.72, 9.243 Jeong et al v Republic of Korea (1642–1741/07) . . . . . . . . . . . . . . . . . 6.25, 17.44 Jessop v New Zealand (1758/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.89, 14.137 Jijón v Ecuador (277/88). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.17, 14.215 Jiménez Vaca v Colombia (859/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.15, 11.04 Johannes Vos v The Netherlands (786/97) . . . . . . . . . . . . . . . . 6.25, 23.18, 23.23 John Cambell v Jamaica (307/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.74 Johnson v Jamaica (588/94) . . . . . . . . . . . . . . . . . . . . 1.77, 1.79, 1.97, 9.81, 9.82 Johnson v Jamaica (592/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.65, 14.158 Johnson v Jamaica (653/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.206 Jonassen et al v Norway (942/00) . . . . . . . . . . 1.54, 6.05, 6.06, 6.33, 24.42, 24.55 Jones v Jamaica (585/94) . . . . . . . . . . . . . . . . . . . . . . . . . . 9.209, 14.137, 14.165 Jong-Cheol v Republic of Korea (968/01) . . . . . . . . . . . . . . . . . . . . . . . . . . 18.43 Jongenburger-Veerman v The Netherlands (1238/04) . . . . . . . . . . . . . . . . . 23.30 Jorge Asensi v Spain (1413/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.23 Joslin et al v New Zealand (902/99) . . . . . . . . . . . . . . . 20.08, 20.42, 20.43, 20.68 Jouni Länsman et al v Finland (671/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.65 Judge v Canada (829/98) . . . 1.79, 3.43, 4.39–4.40, 8.58, 8.69, 8.70–8.71, 23.18 Juma v Australia (984/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.178, 14.192 Jung et al v Republic of Korea (1593–1603/07) . . . . . . . . . . . . . . . . . . . . . . 17.43 KLBW v Australia (499/92) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03 KLY v Canada (1576/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.37 KV and CV v Germany (560/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.49 Kaaber v Iceland (674/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.19 Kaba v Canada (1465/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.08, 9.62, 21.14 Kalamiotis v Cyprus (1486/06). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.163 Kalenga v Zambia (326/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.09 Kall v Poland (552/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.61, 22.68

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Kamoyo v Zambia (1859/09) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.55, 9.85 Kanana v Zaire (366/89). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.49, 9.210 Kang v Republic of Korea (878/99) . . . . . 2.21, 9.141, 9.219, 9.242, 17.10, 18.07 Kankanamge v Sri Lanka (560/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.73, 6.07 Karakurt v Austria (965/00) . . . . . . . . . . . . . . . . . . . . . . 5.11, 23.28, 23.29, 23.74 Karatsis v Cyprus (1182/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.16 Karimov et al v Tajikistan (1108 and 1121/02) . . . . . . . . . . . . . . . . . 8.54, 14.110 Karker v France (833/98) . . . . . . . . . . . . . . . . . . . . . . . 12.10, 12.13, 12.30, 12.46 Karttunen v Finland (387/89) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.67, 14.191 Kasimov v Uzbekistan (1378/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.54 Katsora et al v Belarus (1383/2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.17 Kaur v Canada (1455/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.07, 14.17 Kavanagh v Ireland (819/98) . . . . . . . . . . . . . . . . . . . . . . . . 14.26, 14.100, 23.124 Kazantzis v Cyprus (972/01) . . . . . . . . . . . . . . . 6.25, 14.16, 25.08, 25.09, 25.30 Kelly v Jamaica (253/87) . . . . . . . . . 8.53, 9.204, 11.48, 14.114, 14.127, 14.134, 14.139, 14.148, 14.162 Kennedy v Trinidad and Tobago (845/98) . . . . . . . . 8.49, 8.50, 8.57, 8.61, 9.207, 11.19, 14.20, 14.34, 26.22, 26.31, 26.32, 26.37, 26.38, 26.42 Keshavjee v Canada (949/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.20 Khachatrian v Armenia (1056/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.113 Khalilova v Tajikistan (973/01). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.70, 14.198 Khomidova v Tajikistan (1117/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.70 Khoroshenko v Russian Federation (1304/04) . . . . . . . . . . . . . . . . . . 8.54, 14.104 Khuseynov and Butaev v Tajikistan (1263–4/04) . . . . . . . . . . . . . . 14.117, 14.171 Kibale v Canada (1562/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.16, 25.08 Kibaya v Democratic Republic of the Congo (1483/06) . . . . . . . . . . 9.181, 25.17 Kim v Republic of Korea (574/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.51, 18.54 Kimouche v Algeria (1328/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.145, 11.105 Kindler v Canada (470/91) . . . . . . . . . . . . . . . . 8.71, 1.23, 1.79, 3.41, 4.33, 8.42, 8.67, 8.68, 8.70, 9.80, 9.100, 13.05, 23.18 Kitok v Sweden (197/85) . . . . . . . . . . . . . . . . . . 1.117, 7.24, 24.18, 24.19, 24.20, 24.23–24.24, 24.26, 24.29–24.30 Kivenmaa v Finland (412/90) . . . . . . . . . . 1.143, 15.02, 18.09, 18.11, 19.08, 19.36 Kodirov v Uzbekistan (1284/04). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.80, 8.54 Kohoutek v Czech Republic (1448/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.66 Kolanowski v Poland (837/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.15 Kollar v Austria (989/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.09, 5.10 Komarovski v Turkmenistan (1450/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.43 Koné v Senegal (386/89). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.60, 11.61 Könye and Könye v Hungary (520/92) . . . . . . . . . . . . 2.03, 2.06, 2.14, 2.15, 2.17 Koreba v Belarus (1390/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.238, 14.171, 14.179, 14.184 Korneenko v Belarus (1553/07) . . . . . . . . . . . . . . . . . . . . . . . 18.09, 19.18, 25.28 Kouidis v Greece (1070/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.180 Krasovsky v Belarus (1820/08). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.21

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Kriz v Czech Republic (1054/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.66 Kruyt-Amesz v The Netherlands (66/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.02 Kudrna v Czech Republic (1582/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.57 Kulomin v Hungary (521/92) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.09, 2.17, 9.221 Kulov v Hungary (521/92) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.56, 11.57 Kulov v Kyrgyzstan (1369/05) . . . . . . . . . . . . . . . . . . 9.142, 11.18, 14.70, 14.107 Kungurov v Uzbekistan (1478/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.17 Kuok Koi v Portugal (925/00). . . . . 4.06, 4.7–4.10, 6.40, 6.41–6.43, 26.48, 26.49 Kurbogaj v Spain (1374/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.30 Kurbonov v Tajikistan (1208/03) . . . . . . . . . . . . . . 14.69, 14.115, 14.179, 14.670 Kurnamov v Tajikistan (1096/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.57 Kurowski v Poland (872/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03, 2.18, 2.19 LESK v The Netherlands (381/89) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.01 LP v Czech Republic (946/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.66, 21.34 LTK v Finland (185/84) . . . . . . . . . . . . . . . . . . . . . . . . . 1.79, 10.05, 17.41, 17.43 Lafuente Peñarrieta v Bolivia (176/84). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.49 Lagunas Castedo v Spain (1122/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.67 Laing v Australia (901/99) . . . . . . . . . . . . . . . . . . . . . . . . . 1.95, 3.09, 3.34, 21.31 Lamagna v Australia (737/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.18, 3.22 Landinelli Silva v Uruguay (34/78) . . . . . . . . . . . . . . . . . . . . 22.30, 26.78, 26.79 Länsman v Finland (511/92) . . . . . . . . . . . 1.65, 6.25, 18.69, 22.19, 24.21, 24.24, 24.29, 24.31, 24.33, 24.55 Lantsov v Russion Federation (763/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.37 Laptsevich v Belarus (780/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.15 Larrañaga v Philippines (1421/05) . . . . . . . . . . . . 1.96, 8.54, 9.78, 14.68, 14.107, 14.120, 14.148, 14.171, 14.189, 14.198 Laureano v Peru (540/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.28, 9.155, 21.14 Lavende v Trinidad and Tobago (554/1993) . . . . . . . . . . . . . . . . . . . . 9.83, 14.158 Lecraft v Spain (1493/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.109, 1.110, 23.50 Lederbauer v Austria (1454/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.13, 14.94 Lee v Republic of Korea (1119/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.16 Leehong v Jamaica (613/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04, 11.52 Leirag et al v Norway (931/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.52 Lerma v Colombia (1611/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.83 Levinov v Belarus (1812/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.117 Levy v Jamaica (719/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.53, 9.206, 14.158 Lewis v Jamaica (527/1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.79 Lewis v Jamaica (708/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.242, 11.62 Liberto Calvet Ráfols v Spain (1333/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.15 Lichtensztein v Uruguay (77/80) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.20, 12.21 Lim v Australia (1175/03). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.12 Linderholm v Croatia (744/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.08, 5.13 Lindgren et al v Sweden (298–9/88) . . . . . . . . . 1.29, 22.64, 23.18, 23.29, 23.80 Lindon v Australia (646/95) . . . . . . . . . . . . . . . . . . . . . . . . . . 8.86, 14.38, 14.155

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Linton v Jamaica (255/87) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.50, 9.210 Little v Jamaica (283/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.10, 6.29, 14.139 Llantoy-Huamán v Peru (1153/03) . . . . . . . 3.37, 8.93, 9.58, 16.54, 21.13, 23.109 LMR v Argentina (1608/07) . . . . . . . . 3.37, 4.22, 8.92, 9.59, 16.55, 17.26, 25.20 LNP v Argentina (1610/07). . . . . . . . . . . . . . . . 9.60, 14.24, 16.56, 21.14, 23.106 López Burgos Casariego v Uruguay (56/79) . . . . . . . . . . . . . . . . . . . . . . . . 11.17 López Burgos v Uruguay (52/79) . . . . . . . . . . . . . . . . . . . . . . . 4.13, 9.49, 14.148 Loth v Germany (1754/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13 Love v Australia (983/01) . . . . . . . . . . . . . . . . 22.72, 23.19, 23.29, 23.62, 23.100 Lovelace v Canada (24/77) . . . . . . . . . . . . . . . . . 2.07, 12.09, 20.19, 24.12, 24.19 Lubicon Lake Band Case see Ominayak et al v Canada (167/84) Lubuto v Zambia (390/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.133, 8.48, 14.140 Lukyanchik v Belarus (1391/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.44 Lumanog and Santos v Philippines (1466/06) . . . . . . . . . . . . . . . . . . . . . . 14.138 Lumley v Jamaica (662/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.192, 14.196 Lyashkevich v Uzbekistan (1552/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.117 MA v Italy (117/81) . . . . . . . . . . . . . . . . . . 1.23, 2.08, 18.53, 18.54, 19.14, 22.45 MAB, WAT and J-AYT v Canada (570/93) . . . . . . . . . . . . . . . . 17.04, 17.5–17.6 MF v Jamaica (233/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.139 MG v Germany (1428/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.39 M.G.B. and S.P. v Trinidad and Tobago (268/87) . . . . . . . . . . . . . . . . . . . . . . 2.11 MJG v The Netherlands (267/87) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.32 MK v France (222/87) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01, 26.11 MT v Spain (310/88). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03 McCallum v South Africa (1818/08) . . . . . . . . . . . . . . . . . . . 9.139, 9.143, 9.218 Machado v Uruguay (83/80) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.128 McLawrence v Jamaica (702/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.114 McLeod v Jamaica (734/97) . . . . . . . . . . . . . . . . . . . . . . . . . . 1.61, 9.206, 14.165 McTaggart v Jamaica (749/97) . . 1.61, 9.56, 9.206, 11.62, 14.64, 14.108, 14.136 MacIsaac v Canada (55/79) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.39, 15.15 Madafferi v Australia (1011/01) . . . . . . . . . . . . . 9.75, 11.27, 12.39, 20.26, 20.27 Madani v Algeria (1172/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.57 Madoui v Algeria (1495/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04, 9.145 Mahabir v Austria (944/00). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.09, 5.12 Mahuika v New Zealand (547/93) . . . . . . . . . . . 7.24, 14.42, 14.45, 14.46, 24.20, 24.22, 24.24 Maille v France (689/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.25, 23.59 Maksudov et al v Kyrgyszstan (1461–2, 1476–7/06) . . . . . . . . . . . . . . 1.95, 9.105 Malakhovsky and Pikul v Belarus (1207/03) . . . . . . . . . . . . . . 3.23, 17.17, 17.33 Maleki v Italy (699/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.06, 14.143, 26.12 Malik v Czechoslovakia (669/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.68, 23.70 Mansaraj et al v Sierra Leone (839–841/98). . . . . . . . . . . . . . . . . . . . . . . . . 14.59 Manzano v Colombia (1616/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.26, 23.127 Marais v Madagascar (49/79) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.142

xxvi

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Marcellana and Gumanoy v Philippines (1560/07) . . . . . . 5.03,8.20, 8.41, 11.06 Marik v Czech Republic (945/00). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.66 Marín Gómez v Spain (865/99) . . . . . . . . . . . . . . . . . . . . . . . 14.85, 22.72, 23.64 Marinich v Belarus (1502/06) . . . . . . . . . . . . . . . . . . . 9.138, 11.18, 14.81, 14.107 Maroufidou v Sweden (58/79) . . . . . . . . . . . . . . . . . . . . . . . . 13.10, 13.12, 13.17 Marques de Morais v Angola (1128/02) . . . . . . . . . . . . . . . . . 11.73, 12.19, 18.45 Marshall v Canada (205/86) . . . . . . . . . . . 7.24, 22.16, 22.20, 24.05, 24.35, 24.41 Marshall v Jamaica (730/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.209, 14.158 Martin v Jamaica (317/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.89, 9.90 Martinez de Irujo v Spain (1008/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.10 Martìnez et al v Uruguay (1607/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25.21 Martínez Machado v Uruguay (83/80) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.20 Martínez Muñoz v Spain (1006/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.85 Martínez v Paraguay (1407/05). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.66, 21.34 Massera v Uruguay (5/77) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.134, 9.206 Massiotti and Baristussio v Uruguay (25/78) . . . . . . . . . . . . . . . . . . . . . . . . . 4.03 Mathioudakis v Greece (1572/07) . . . . . . . . . . . . . . . . . . . . . . . . . . 14.89, 14.112 Matthews v Trinidad and Tobago (569/93) . . . . . . . . . . . . . . . . . . . . . 9.130, 9.206 Mátyus v Slovakia (923/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.37 Mauritian Women’s Case (35/78) . . . . . . . . 1.130, 1.133, 3.01, 3.40, 3.46, 16.24, 16.25, 20.05, 20.18, 20.19, 20.50, 23.51 Mavlonov and Sa’di v Uzbekistan (1334/04) . . . . . . . . . . . . . 18.28, 24.47, 24.48 Mazou v Cameroon (630/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.73 Mbenge v Zaire (16/77) . . . . . . . . . . . . . . . . . . . . . . . . 3.30, 4.03, 14.142, 14.143 Mennen v The Netherlands (1797/08) . . . . . . . . . . . . . . . . . . . . . . 14.192, 14.195 Miango Muiyo v Zaire (194/85) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.49 Miha v Equatorial Guinea (414/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02 Mikmaq Tribal Society v Canada see Marshall v Canada (205/86) Millán Sequeira v Uruguay (6/77) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.01, 5.07 Minogue v Australia (954/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.235, 26.29 Mojica v Dominican Republic (449/91) . . . . . . . . . . . . . . . . . . 8.28, 9.154, 9.155 Montero v Uruguay (106/81) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.14, 12.20 Morael v France (207/86) . . . . . . . . . . . . . . . . . . . . . 14.87, 14.95, 14.112, 14.198 Morgan and Williams v Jamaica (720/96) . . . . . . . . . . . . . . . . . . . . . . 9.56, 9.206 Morrison and Graham v Jamaica (461/91) . . . . . . . . . . . . . . . . . . . . . . . . . 14.165 Morrison v Jamaica (663/95) . . . . . . . . . . . . . . . . . . . . . . . . . 3.03, 9.206, 14.165 Mpaka-Nsusu v Zaire (157/1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.04 Mpandanjila et al v Zaire (138/83) . . . . . . . . . . . . 3.31, 6.17, 9.195, 12.04, 18.09 Muhonen v Finland (89/81) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.15, 6.48, 14.207 Mukong v Cameroon (458/91) . . . . . . . . . . . . . . . 1.133, 9.46, 9.55, 9.132, 9.210, 9.214, 11.17, 18.60 Mukunto v Zambia (768/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.91, 14.140 Mulezi v Democratic Republic of the Congo (962/01) . . . . . . . . . . . . . . . . 20.16 Müller and Engelhard v Namibia (919/00) . . . . . . . . . . . . . . . . . . . . . 23.36, 23.53

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xxvii

Munaf v Romania (1539/06). . . . . . . . . . . . . . . . . . . . 4.31, 4.34, 4.35–4.36, 4.39 Muñoz Hermoza v Peru (203/86) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.91 Musaev v Uzbekistan (1914–6/09) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.58 Muteba v Zaire (124/82) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.49 Mwamba v Zambia (1520/06) . . . . . . . . . . . . . . . . . . . . . . . . . 8.57, 9.78, 14.107 NAJ v Jamaica (246/87) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.36 NG v Canada (469/91) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.61, 9.94, 9.95 NT v Canada (1052/02) . . . . . . . . . . . . . . . . . . . . . . . . . 3.34, 14.66, 14.92, 20.39 Nahlik v Austria (608/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.35,23.97, 23.98 Nakrash and Qifen v Sweden (1540/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.37 Nam v Republic of Korea (693/96). . . . . . . . . . . . . . . . . . . . . . . . . . . 18.16, 18.17 Nazarov v Uzbekistan (911/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.54, 14.70 Nazriev v Uzbekistan (1044/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.66 Neefs v The Netherlands (425/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.29, 23.80 Nenova v Libya (1880/09) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.27 Ngambi v France (1179/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.22, 20.12 Nicholas v Australia (1080/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.73, 15.05 Nikolov v Bulgaria (824/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.01 Njaru v Cameroon (1353/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04 Novakovic v Serbia (1556/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.45, 25.13 Novotny v Czech Republic (1778/08). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.30 Nystrom v Australia (1557/07) . . . 1.79, 12.40, 12.42–12.43, 12.46, 14.213, 20.28 OF v Norway (158/83) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.154 OJ v Finland (419/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.52 Obodzinsky v Canada (1124/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.77, 11.07 Oló Bahamonde v Equatorial Guinea (468/91) . . . . . . . . . . . . . . . . . . . . . . 12.19 Ominayak et al v Canada (167/84) . . . . . . . . . 1.143, 3.11, 6.08, 6.22, 6.32, 6.39, 7.24, 24.27, 24.28, 24.35 O’Neill and Quinn v Ireland (1314/04) . . . . . . . . . . . . . . . . . . . . . . 1.137, 23.128 Orazova v Turkmenistan (1883/09) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.18 Ortega v Ecuador (481/1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.210 Osbourne v Jamaica (759/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.29, 9.128 Osiyuk v Belarus (1311/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.04, 14.143 Ouaghlissi et al v Algeria (1905/09) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.33, 10.22 Oulajin and Kaiss v The Netherlands (406, 426/90). . . . . . . . . . . . . 20.05, 23.18, 23.19, 23.21, 23.29, 23.80 Owen v France (1620/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.14, 14.106 PK v Canada (1234/03). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.07, 14.17 PL v Belarus (1814/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.29 PL v Germany (1003/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.12 PS v Denmark (397/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.33, 6.28, 6.30, 19.13 Paraga v Croatia (727/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.09 Park v Republic of Korea (628/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.51

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Tables of Cases

Párkányi v Hungary (410/90) . . . . . . . . . . . . . . . . . . . . . . . . . 2.04, 9.206, 14.170 Pastukhov v Belarus (814/98) . . . . . . . . . . . . . . . . . . . . 14.16, 14.50, 14.51, 22.69 Patiño v Panama (437/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03 Pauger v Austria (716/96) . . . . . . . . . . . . . . . . . 5.10, 23.18, 23.52, 23.78, 23.119 Peart and Peart v Jamaica (464, 482/91) . . . . . . . . . . . . . . . . . . . . . 14.171, 14.173 Peiris v Sri Lanka (1862/09) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.14, 11.06, 16.20 Peltonen v Finland (492/92) . . . . . . . . . . . . . . . . . . . . . . . . . . 12.25, 12.30, 12.46 Peñarrietta v Bolivia (176/84) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.218 Pennant v Jamaica (647/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.89, 9.206 Pepels v The Netherlands (484/91) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.18 Perera v Australia (536/93) . . . . . . . . . . . . . . . . . . . . 2.03, 14.168, 14.171, 14.189 Perera v Australia (541/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09 Persaud and Rampersaud v Guyana (812/98) . . . . . . . . . . . . . . . 8.57, 9.83, 26.44 Perterer v Austria (1015/01) . . . . . . . . . . . . . . . . . . . . . . . . . . 14.13, 14.67, 14.94 Pestaño v Philippines (1619/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.21 Peterson v Germany (1115/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.10, 5.11 Pezoldova v Czech Republic (757/97) . . . . . . . . . . . . . . . . . . . . . . . . 5.02, 23.123 Phillip v Trinidad and Tobago (594/92) . . . . . . . . . . . . . . . . . 8.54, 9.206, 14.120 Piandiong v Philippines (869/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.66 Picq v France (1632/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.11, 25.08 Pietraroia v Uruguay (44/79) . . . . . . . . . . . . . . . . . . . . . 1.84, 9.218, 22.30, 26.78 Pillai v Canada (1763/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.43, 4.37, 9.100 Pimentel v Philippines (1320/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.94 Pindado Martínez v Spain (1490/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.10 Pingault-Parkinson v France (1768/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.59 Pinkney v Canada (27/78) . . . . . . . . . . . . . 1.83, 9.233, 12.28, 16.08, 16.32, 19.06 Pinto v Trinidad and Tobago (232/87) . . . . . . . . . . . . . 8.53, 9.224, 14.63, 14.148 Pinto v Trinidad and Tobago (512/92) . . . . . . . . . . . . . . . . . . . . . . . . 9.205, 9.224 Plotnikov v Russion Federation (784/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.81 Pohl v Austria (1160/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.18, 23.29 Polay Campos v Peru (577/94) . . . 5.05, 9.51, 9.142, 9.206, 14.101, 26.52, 26.78 Poma Poma v Peru (1457/06) . . . . . 5.04, 7.24, 22.19, 24.37, 24.38, 24.55, 25.13 Poongavanam v Mauritius (567/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.02 Portorreal v Dominican Republic (188/84). . . 9.132, 11.17, 11.54, 11.73, 11.100 Potter v New Zealand (632/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.214 Pratt and Morgan v Jamaica (210/86, 225/87) . . . . . . . . . . . . . . . 1.50, 6.19, 9.91, 14.139, 14.149, 14.171 Price v Jamaica (572/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.53 Prince v South Africa (1474/06) . . . . . . . . . . . . . . . . . . 17.05, 17.34, 23.46, 24.45 Queenan v Canada (1379/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.37, 8.90 Quinteros v Uruguay (107/81) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.07, 9.68, 9.69 R and MH v Italy (565/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.27 RAVN v Argentina (343–345/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.11

Tables of Cases

xxix

RL et al v Canada (358/89). . . . . . . . . . . . . . . . . . . . . . . . . 6.19, 6.28, 6.39, 24.13 RLAW v The Netherlands (372/89) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.01 RLM v France (363/89) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.11 RLM v Trinidad and Tobago (380/89) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.45 RM v Finland (301/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.63, 14.99, 14.191 RS v Trinidad and Tobago (684/96) . . . . . . . . . . . . . . . . . . . . . . 8.65, 9.92, 9.208 RT v France (262/87) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04, 6.19 RTZ v The Netherlands (245/87) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.32 R v Oakes [1986] 26 DLR (4d) 200 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.40 Radosevic v Germany (1292/04) . . . . . . . . . . . . . . . . . . . . . . 9.245, 10.04, 23.30 Raihman v Latvia (1621/07) . . . . . . . . . . . . . . . . . . . . . . . . . . 16.04, 16.14, 24.51 Rajan and Rajan v New Zealand (820/98) . . . . . . . . . . . . . . . . 6.02, 20.34, 21.36 Rajapakse v Sri Lanka (1250/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.177, 11.04 Rakhmatov et al v Tajikistan (1209, 1231/203 and 1241/04) . . . . . . 14.70, 14.184 Rameka et al v New Zealand (1090/02) . . . . . . . . . . . . . . . . . 11.32, 11.33–11.34, 11.79, 11.80–11.81, 11.90 Ramirez v Uruguay (4/77) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.17 Randolph v Togo (901/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04, 6.46 Ratiani v Georgia (975/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.136, 14.192 Rattigan and Others v Chief Immigration Officer of Zimbabwe (45/94; 92/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.19 Rayos v Philippines (1167/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.57, 8.59, 9.93 Reece v Jamaica (796/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.19, 11.20, 14.20 Reid v Jamaica (250/87) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.53 Reid v Jamaica (355/89) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.197 Reshetnikov v Russian Federation (1278/04) . . . . . . . . . . . . . . . . . . . . . . . . 11.57 Reynolds v Jamaica (229/87) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.139 Reynolds v Jamaica (597/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.210, 14.139 Richards v Jamaica (535/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.62, 14.75 Ricketts v Jamaica (667/965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.165 Robinson v Jamaica (223/87) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.158 Robinson v Jamaica (731/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.135, 9.207 Rodríguez Orejuela v Colombia (848/99). . . . . . . . . . . . . . . . . . . . . . 14.98, 14.99 Rodriguez v Uruguay (322/88) . . . . . . . . . . . . . . 2.11, 9.185, 9.186, 9.210, 25.07 Rogers v Jamaica (494/92) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.80 Rogerson v Australia (802/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.139, 14.192 Rojas Garcia v Colombia (687/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.07, 16.28 Rolando v Philippines (1110/02) . . . . . . . . . . . . . . . . . . . . . . . . . 8.57, 8.59, 9.93 Ross v Canada (736/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.09, 18.84 Rouse v Philippines (1089/02) . . . . . . . . . . . . . . . . . 9.137, 14.70, 14.175, 14.193 SB v Kyrgysztan (1877/09). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.06, 18.24 SE v Argentina (275/88) . . . . . . 2.11, 2.13, 2.17, 8.26, 9.186, 25.07, 25.08, 25.09 SG v France (347/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.14, 26.11 SHB v Canada (192/85) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.46, 6.48

xxx

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SL v Czech Republic (1850/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.57, 6.25 SM v Barbados (502/92) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.18, 3.22 SV v Canada (49/96). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.14 Sahid v New Zealand (893/99) . . . . . . . . . . . . . . . . . . . . . . . . 20.33, 20.68, 21.36 Saidov v Tajikistan (964/01) . . . . . . . . . . . . . . . . . . . . . . . . . . 1.66, 14.70, 14.109 Saker v Algeria (992/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.28, 9.145, 11.105 Salgar de Montejo v Colombia (64/79) . . . . . . . . . . . . . . . . . . . . . . 14.190, 26.78 Salikh v Uzbekistan (1382/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.143 Sama v Germany (1771/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.191, 18.44 Sánchez and Clares v Spain (1332/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.198 Sánchez González v Spain (1005/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.85 Sánchez López v Spain (777/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07, 14.182 Sanjeevan v Sri Lanka (1436/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.24, 8.26 Sanjuán Arévalo v Colombia (181/84) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.28 Sankara et al v Burkina Faso (1159/03) . . . . . . . . . 2.16, 2.17, 9.70, 14.13, 14.31 Santullo Valcada v Uruguay (9/77) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.100 Sawyers, McLean and McLean v Jamaica (226, 256/87) . . . . . . . . . . . . . . 14.121 Sayadi and Vinck v Belgium (1472/06) . . . . . . . . . . . 1.87, 1.88–1.92, 1.95, 4.28, 4.29–4.30, 5.07, 12.23, 12.46, 14.05, 14.83, 16.46 Schalk and Kopf v Austria (30141/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.43 Schedko v Belarus (886/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.70 Schlosser v Czech Republic (670/95) . . . . . . . . . . . . . . . . . . . . . . . . . 23.68, 23.70 Schmitz-de-Jong v The Netherlands (855/99) . . . . . . . . . . . . . . . . . . . . . . . 23.29 Sechremelis v Greece (1507/06) . . . . . . . . . . 1.93, 1.94–1.95, 14.83, 25.18, 25.19 Sedljar and Lavrov v Estonia (1532/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.170 Semey v Spain (986/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.188 Sendic v Uruguay (63/79) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.49 Sextus v Trinidad and Tobago (818/98) . . . . . . . . . . . . . . . 11.62, 14.135, 14.140 Shafiq v Australia (1324/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.26, 11.98 Shalto v Trinidad and Tobago (447/91) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.139 Shams et al v Australia (1255, 1256, 1259, 1260, 1266, 1268, 1270 and 1288/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.26, 11.98 Sharma v Nepal (1469/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.30, 9.145, 11.105 Shaw v Jamaica (704/96) . . . . . . . . . . . . . . . . 9.142, 9.155, 9.206, 14.34, 14.165 Shchetka v Ukraine (1535/06) . . . . . . . . . . . . . . . . . . . . . . 14.70, 14.171, 14.203 Shchetko v Belarus (1009/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.37 Shergill v Canada (1506/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.28 Shin v Republic of Korea (926/00) . . . . . . . . . . . . . . . . . . . . . 18.08, 18.34, 18.64 Shukurova v Uzbekistan (1044/02). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.70 Silva v Zambia (825–8/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.07 Simms v Jamaica (541/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.80 Simons v Panama (460/91) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.45 Simpson v Jamaica (695/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.165 Simunek et al v Czech Republic (516/92) . . . . 23.08, 23.18, 23.65, 23.66, 23.67

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Sineiro Fernández v Spain (1007/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.188 Singarasa v Sri Lanka (1033/01). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04, 14.179 Singer v Canada (455/91) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.19, 3.20, 3.23 Singh Bhinder v Canada (208/86). . . . . . . . . . . . . . . . . . . . . . 12.30, 17.31, 23.42 Singh v France (1876/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.32, 17.35 Singh v New Zealand (791/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.211 Sinitsin v Belarus (1047/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.44 Sipin v Estonia (1423/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.75 Siragev v Uzbekistan (907/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.54 Sister Immaculate Joseph v Sri Lanka (1249/04) . . . . . 3.23, 17.22, 17.40, 23.120 Smanster v Belarus (1178/03). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.64 Smartt v Guyana (867/99). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.117 Smídek v Czech Republic (1062/02) . . . . . . . . . . . . . . . . . . . . . . . . . 23.06, 25.08 Smirnova v Russia (712/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.50 Smith and Stewart v Jamaica (668/95) . . . . . . . . . . . . . . . . 9.140, 14.136, 14.165 Smith v Jamaica (282/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.119 Snijders et al v The Netherlands (651/95) . . . . . . . . . . . . . . . . . . . . . 23.29, 23.82 Sobhraj v Nepal (1870/09) . . . . . . . . . . . . . . . . . . . . . . . . . . 9.206, 14.211, 15.04 Sohn v Republic of Korea (518/92). . . . . . . . . . . . . . . . . . . . . . 6.25, 18.52, 18.54 Solís Palma v Panama (436/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.27 Solórzano v Venezuela (156/83) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.209 Soltes v Czech Republic and Slovakia (1034–5/01) . . . . . . . . . . . . . . . . 1.50, 6.13 Somers v Hungary (566/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.80 Soogrim v Trinidad and Tobago (362/1989) . . . . . . . . . . . . . . . . . . . . . . . . . 9.210 Sooklal v Trinidad and Tobago (928/00) . . . . . . . . . . . . . . . . . . . . . 9.128, 14.165 Soteli Chambala v Zambia (856/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.102 Spakmo v Norway (631/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.16 Spence v Jamaica (59/1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.79 Sprenger v The Netherlands (395/90) . . . 20.09, 23.18, 23.19, 23.21, 23.29, 23.78 Stalla Costa v Uruguay (198/85). . . . . . . 22.38, 22.65, 22.66–22.67, 23.88, 23.90 Staselovich v Belarus (887/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.70 Steadman v Jamaica (528/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.165 Stephens v Jamaica (373/89) . . . . . . . . . . . . . . . . . . . . . . . . . 11.50, 11.72, 14.137 Stewart v Canada (538/93) . . . . . . . . . . . . 1.79, 9.125, 12.39, 12.46, 20.24, 20.68 Suárez de Guerrero v Colombia (45/79) . . . . . . . . . . . . . . . . . . . . 8.03, 8.04, 8.22 Sudalenko v Belarus (1354/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.44 Sudalenko v Belarus (1750/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.15 Sultanova v Uzbekistan (915/00) . . . . . . . . . . . . . . . . . 9.70, 11.10, 14.70, 14.179 Svetik v Belarus (927/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.37 TK v France (220/87) . . . . . . . . . . . . . . . . . . . . . 6.01, 24.11, 26.09, 26.10, 26.25 TT v Australia (706/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.39 Tadman v Canada (816/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.05, 23.07 Taright v Algeria (1085/02). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.18

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Taylor v Jamaica (705/96). . . . . . . . . . . . . . . 9.204, 9.206, 14.34, 14.167, 14.168 Teesdale v Trinidad and Tobago (677/96) . . . . . . . . . 9.208, 9.244, 11.62, 14.149, 14.165, 23.130 Telitsin v Russian Federation (888/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.21 Terrón v Spain (1073/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.198 Thomas v Jamaica (272/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.121 Thomas v Jamaica (321/88) . . . . . . . . . . . . . . . . . . . . . . . . 5.01, 6.29, 9.51, 9.210 Thomas v Jamaica (532/93) . . . . . . . . . . . . . . . . . . . . . . . . . 1.78, 14.124, 14.158 Thomas v Jamaica (614/95) . . . . . . . . . . . . . . . . . . . . . . . . . . 8.55, 14.64, 14.136 Thomas v Jamaica (800/98) . . . . . . . . . . . . . . . . . . . . . . . . . . 9.238, 26.43, 26.44 Thompson v Panama (438/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03 Thompson v St Vincent and The Grenadines (806/98) . . . . . . . . . . . . . . 8.57, 9.91 Tillman v Australia (1635/07) . . . . . . . . . . . . . . . . . . . . . . . . 11.35, 14.212, 15.10 Titianhonjo v Cameroon (1186/03). . . . . . . . . . . . . . . . . . . . . . . 8.38, 9.68, 9.135 Tiyagarajah v Sri Lanka (1523/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.47, 14.89 Toala v New Zealand (675/95) . . . . . . . . . . . . . . . . . . . . . . . . 12.34, 12.37, 12.46 Tofanyuk v Ukraine (1346/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.08 Toktakunov v Kyrgyzstan (1470/06). . . . . . . . . . 3.06, 18.25, 18.26–18.27, 18.32 Tolipkhuzhaev v Uzbekistan (1280/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.66 Tomlin v Jamaica (589/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.201 Toonen v Australia (488/92) . . . . . . . . 1.29, 1.61, 1.84, 1.130–1.131, 3.48, 16.12, 16.50, 16.51–16.52, 17.37, 18.70, 23.31, 26.57 Tornel et al v Spain (1473/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.39, 9.71, 16.23 Toro Gedumbe v Democratic Republic of the Congo (641/95) . . . . . . . . . . 22.69 Torobekov v Kyrgysztan (1547/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.57 Torregrosa la Fuente v Spain (866/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.85 Torres Ramírez v Uruguay (4/77) . . . . . . . . . . . . . . . . . . . . . . . . 5.01, 6.20, 26.78 Torres v Finland (291/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.09, 11.75, 11.88 Traoré v Côte d’Ivoire (1759/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.21, 8.32 Trébutien v France (421/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.10 Truong v Canada (743/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.16 Tsarjov v Estonia (1223/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.75 Tshionga a Minanga v Zaire (366/89) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.17 Tshisekedi v Zaire (241–242/87) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.42 Tshishimbi v Zaire (542/93) . . . . . . . . . . . . . . . . . . . . . 9.145, 9.155, 11.04, 11.06 Tulzhenkova v Belarus (1838/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.15 TWMB v The Netherlands (403/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.86 US v Finland (197/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.111 Uclés v Spain (1364/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.188 Uebergang v Australia (963/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.208 Umarov v Russian Federation (1449/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.65 Umateliev v Kyrgystan (1275/04) . . . . . . . . . . . . . . . . . . . . 8.09, 8.10, 8.19, 19.05 Uteev v Uzbekistan (1150/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.66

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VB v Trinidad & Tobago (485/91) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.137 VMRB v Canada (236/87) . . . . . . . . . . . . . . . . . 1.52, 13.20, 13.21–13.22, 13.25 VØ v Norway (168/84) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.08 VS v Belarus (1749/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.22 VS v Russian Federation (1627/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.44 Vakoumé v France (822/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.24 Valentijn v France (584/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.10 Valentini de Bazzano v Uruguay (5/77) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.218 Valenzuela v Peru (309/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.18 Van Alphen v The Netherlands (305/88). . . . . . . . . . . . . . . . . . . . . . . . 6.10, 11.15 Van Den Hemel v The Netherlands (1185/03) . . . . . . . . . . . . . . . . . . . . . . . 14.67 Van der Houwen v The Netherlands (583/94) . . . . . . . . . . . . . . . . . . . . . . . 11.54 Van der Plaat v New Zealand (1492/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.15 Van Duzen v Canada (50/79) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.04, 15.15 Van Meurs v The Netherlands (215/86) . . . . . . . . . . . . . . . 14.63, 14.103, 14.171 Van Oord v The Netherlands (658/95) . . . . . . . . . . . . . . . . . . . . . . . . 23.28, 23.74 Varel Nuñez v Uruguay (108/81) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.20, 12.21 Vargas Más v Peru (1058/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.206 Vargas v Chile (718/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.11, 25.07 Vasilskis v Uruguay (80/80) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.161 Vassilari et al v Greece (1570/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.79 Velichkin v Belarus (1022/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.07 Venier and Nicolas v France (690–91/97) . . . . . . . . . . . . . . . . . . . . . . . . . . 23.59 Verlinden v The Netherlands (1187/03) . . . . . . . . . . . . . . . . . . . . . . 14.89, 14.197 Vicente et al v Colombia (612/95) . . . . . . . . . . . . 6.04, 8.23, 9.52, 9.186, 14.114 Vidal Martins v Uruguay (57/79) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.13, 12.20 Vojnovic v Croatia (1510/06) . . . . . . . . . . . . . . . . . . . . . . . . . 14.78, 14.94, 16.19 Vos v The Netherlands (218/86) . . . . . . . . . . . . . . . . . . 23.18, 23.26, 23.32, 23.44 Vuolanne v Finland (265/87) . . . 9.03, 9.29, 9.30, 9.72, 11.09, 11.89, 12.32, 23.33 WBE v The Netherlands (432/90) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.67, 14.112 WJH v The Netherlands (408/90) . . . . . . . . . . . . . . . . . . . . . . . . . . 14.112, 14.208 Wackenheim v France (854/99) . . . . . . . . . . . . . . . . . . 23.09, 23.18, 23.29, 26.04 Waldman v Canada (694/96). . . . . . . . . . . 1.29, 3.05.…… (23.63), 17.55, 23.07, 23.18, 23.60, 23.81, 23.91, 23.119 Walker and Richards v Jamaica (639/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.209 Wallen v Trinidad and Tobago (576/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.36 Wallman v Austria (1002/01) . . . . . . . . . . . . . . . . 3.21, 5.09, 19.13, 19.34, 19.36 Wanza v Trinidad and Tobago (683/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.208 Warsame v Canada (1959/10) . . . . . . . . . . 1.79, 8.74, 9.103, 12.41, 12.42–12.43, 12.46, 20.28, 21.48 Weerawansa v Sri Lanka (1406/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.20, 14.02 Weinberger Weisz v Uruguay (28/78) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.04 Weismann and Lanza Perdomo v Uruguay (8/77) . . . . . . . . . . . . . . . 11.17, 26.78

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Weiss v Austria (1086/02) . . . . . . . . . . . . . . . . . . . . . 1.61, 1.66, 5.10, 6.23, 14.27 Westerman v The Netherlands (682/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.06 Williams v Jamaica (609/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.65, 9.76 Wilson v Philippines (868/99) . . . . . . . . . . . . . . . . . . . . . 9.20, 9.87, 9.135, 9.234 Winata v Australia (930/00) . . . . 13.02, 20.29, 20.30–20.32, 20.68, 21.35, 21.36 Wolf v Panama (289/88) . . . . . . . . . . . 9.224, 9.234, 10.04, 14.82, 14.131, 14.144 Wright and Harvey v Jamaica (459/91) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.158 Wright v Jamaica (349/89) . . . . . . . . . . . . . . . . . . 5.02, 6.29, 8.53, 14.72, 14.121 X v Colombia (1361/05) . . . . . . . . . . . . . . . . . . . . . . . . 1.131, 20.08, 23.31, 23.56 X v Serbia (1355/05). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.35 X v Sweden (1833/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.102 XHL v The Netherlands (1564/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.103, 21.48 Y v Australia (772/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.27 YL v Canada (112/81) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.15, 14.09, 14.10–14.11 Yasseen and Thomas v Republic of Guyana (676/96) . . . . . . . . . . . . 9.56, 9.206, 14.123, 14.136 Yevdokimov and Rezanov v Russian Federation (1410/05) . . . . . . . . 1.74, 9.246, 22.27, 22.28–22.29 Yin Fong v Australia (1442/05) . . . . . . . . . . . . . . . . . . . . . 4.39, 8.72, 9.78, 11.98 Yklymova v Turkmenistan (1460/06) . . . . . . . . . . . . . . . . . . . . . . . . . 11.10, 16.29 Yoon and Choi v Republic of Korea (1321–2/04) . . . . . . . . . . 1.79, 10.05, 17.43 Young v Australia (941/00) . . . . . . . . . . . . . . . . . 1.74, 1.131, 23.31, 23.54, 23.55 Young v Jamaica (615/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.51, 14.171 Yurich v Chile (1078/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.13 Yutronic v Chile (740/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.33 Zafar v Uzbekistan (1585/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.17, 15.02 ZP v Canada (341/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.104, 14.157–14.158 Zalesskaya v Belarus (1604/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.07 Zheikov v Russion Federation (889/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.162 Zheludkov v Ukraine (726/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.222 Zhumbaeva v Kyrgysztan (1756/08) . . . . . . . . . . . . . . . . . . . . . . . 8.13, 8.19, 8.37 Zhurin v Russia (851/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.22 Zündel v Canada (134/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.07, 14.17, 18.13 Zvozskov v Belarus (1039/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.17 Zwaan-de-Vries v The Netherlands (182/843.52 Zyuskin v Russian Federation (1496/06 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.165 Committee Against Torture A v The Netherlands (CAT 91/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 AD v The Netherlands (CAT 96/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.111 ALN v Switzerland (CAT 90/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.111 AS v Sweden (CAT 149/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.63 Abdelli v Tunisia (CAT 188/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.168

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Abdussamatov et al v Kazakhstan (CAT 444/10) . . . . . . . . . . . . . . . . . 1.51, 9.106 Aemei v Switzerland (CAT 34/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110, 9.117 Agiza v Sweden (CAT 233/03) . . . . . . . . . . . . . . . . . . . . . . . . . . 9.13, 9.38, 9.106 Ahmed Karoui v Sweden (CAT185/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 Alan v Switzerland (CAT 21/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 Ali v Tunisia (CAT 291/06) . . . . . . . . . . . . . . . . . . . . . . 9.24, 9.153, 9.168, 9.174 Arkauz Arana v France (CAT 63/97) . . . . . . . . . . . . . . . . . . . . . . . . . 9.110, 9.119 Attia v Sweden (CAT 199/02). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.106 Ayas v Sweden (CAT 97/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 Aytululin and Güclü v Sweden (CAT 373/09) . . . . . . . . . . . . . . . . . . . . . . . . 9.14 BS v Canada (CAT 166/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.109 Bakutu-Bia v Sweden (CAT 379/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.65 Barakat v Tunisia (CAT 14/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.27 Baraket v Tunisia (CAT 60/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.168 Ben Salem v Tunisia (CAT 269/05) . . . . . . . . . . . . . . . . 9.24, 9.153, 9.168, 9.174 Blanco Abad v Spain (CAT 59/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.168 Brada v France (CAT 195/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.66, 9.114 CM v Canada (CAT 355/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.31 CT and KM v Sweden (CAT 279/2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 Dadar v Canada (CAT 258/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 Danilo Dimitrijevic v Serbia and Montenegro (CAT 172/00) . . . . . . . . . . . . 9.24 Dar v Norway (CAT 249/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.66 Dimitrov v Serbia and Montenegro (CAT 171/2000) . . . . . . . . . . . . . . . . . . . 9.24 Dzemajl et al v Yugoslavia (CAT 161/00) . . . . . . . 9.12, 9.14, 9.39, 9.168, 9.174 EA v Switzerland (CAT 28/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.111 EL v Switzerland (CAT 3512/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.65 El Rgeig v Switzerland (CAT 280/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 Elmi v Australia (CAT 120/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.15, 9.16–9.17 Falakaflaki v Sweden (CAT 89/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 Falcon Rios v Canada (CAT 133/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 GK v France (CAT 219/02). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.157 GK v Switzerland (CAT 219/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 GRB v Sweden (CAT 83/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.14, 9.16, 9.126 Gerasimov v Kazakhstan (CAT 433/10) . . . . . . . . . . . . . . 2.10, 9.24, 9.168, 9.174 Güclü v Sweden (CAT 349/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.14 Guengueng v Senegal (CAT 181/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.190 Guridi v Spain (CAT 212/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.180 HD v Switzerland (CAT 112/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 Halimi-Nedzibi v Austria (CAT 8/91). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.169 Hanafi v Algeria (CAT 341/08) . . . . . . . . . . . . . . . 1.49, 9.24, 9.153, 9.168, 9.174

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Haydin v Sweden (CAT 101/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 IAO v Sweden (CAT 65/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.109 ISD v France (CAT 194/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.122 Iya v Switzerland (CAT 299/06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.115 JHA v Spain (CAT 323/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.32, 4.15 JUA v Switzerland (CAT 100/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.111 Jahani v Switzerland (CAT 357/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 KN v Switzerland (CAT 94/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.111 Kalinichenko v Morocco (CAT 428/10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.106 Keremedchiev v Bulgaria (CAT 257/04) . . . . . . . . . . . . . . . . . . 9.37, 9.47, 9.170 Khan v Canada (CAT 15/94). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 Kisoki v Sweden (CAT 41/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 Korban v Sweden (CAT 88/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.112 Ktiti v Morocco (CAT 419/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110, 9.157 Ltaief v Tunisia (CAT 189/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.21, 9.168 MAK v Germany (CAT 214/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.17 MF v Sweden (CAT 326/2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.14, 9.126 MMK v Sweden (CAT 221/02). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.126 MPS v Australia (CAT 138/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.14 Mohamed v Greece (CAT 40/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.116 Mutombo v Switzerland (CAT 13/93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 Muzonzo v Sweden (CAT 41/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 N B-M v Switzerland (CAT 347/08). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.65 NP v Australia (CAT 106/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.111 Njamba and Balikosa v Sweden (CAT 322/07) . . . . . . . . . . . . . 9.18, 9.65, 9.126 Osmani v Republic of Serbia (CAT 261/05) . . . . . . . . . . . 9.12, 9.39, 9.168, 9.174 PE v France (CAT 193/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.157 PQL v Canada (CAT 57/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.111, 14.214 Parot v Spain (CAT 6/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.171 Pelit v Azerbaijan (CAT 281/05). . . . . . . . . . . . . . . . . . . . . . . . 1.66, 9.106, 9.110 RD v Sweden (CAT 220/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.126 RSAN v Canada (CAT 284/06). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.28 RT v Australia (CAT 153/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.112 Rosenmann v Spain (CAT 176/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.191 SMR and MMR v Sweden (CAT 103/98). . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 SS v The Netherlands (CAT 191/01) . . . . . . . . . . . . . . . . . . . . 9.14, 9.111, 9.126 Singh Khalsa v Switzerland (CAT 366/08). . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 Slyusar v Ukraine (CAT 353/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.24 Sogi v Canada (CAT 297/06) . . . . . . . . . . . . . . . . . . . . . . . . . . 1.66, 9.113, 9.123

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Sonko v Spain (CAT 368/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.15, 9.36 TA v Sweden (CAT 266/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 TM v Sweden (CAT 288/03). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.109, 9.126 TPS v Canada (CAT 99/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.121 Tala v Sweden (CAT 43/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 Tapia Paez v Sweden (CAT 39/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.119 Tebourski v France (CAT 300/06) . . . . . . . . . . . . . . . . . . . . . . 1.66, 9.114, 9.119 Thabti v Tunisia (CAT 187/01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.21, 9.168 Uttam Mondal v Sweden (CAT 338/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.102 VL v Switzerland (CAT 262/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.64 VXN and HN v Sweden (CAT 130–131/99) . . . . . . . . . . . . . . . . . . . . 9.14, 9.109 Vnim v Canada (CAT 119/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.35 X v Spain (CAT 23/1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.116 X v The Netherlands (CAT 41/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 X, Y, and Z v Sweden (CAT 61/96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.111 Y v Switzerland (CAT 18/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.111 ZT v Norway (CAT 238/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.31 ZZ v Canada (CAT 123/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.111 Zare v Sweden (CAT 256/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.129 Committee For The Elimination of Racial Discrimination Adan v Denmark (CERD 43/08). . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.88, 23.117 Ahmad v Denmark (CERD 16/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.88 Ahmed Habassi v Denmark (CERD 10/97) . . . . . . . . . . . . . . . . . . . . . . . . 23.117 BJ v Denmark (CERD 10/97) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.118 Barbaro v Australia (CERD 12/98) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.26 Barbaro v Australia (CERD 7/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.12, 6.25 CP and MP v Denmark (CERD 5/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.12 Dawas and Shava v Denmark (CERD 46/09) . . . . . . . . . . . . . . . . . . . . . . . 23.117 Durmic v Serbia and Montenegro (CERD 29/03) . . . . . . . . . . . . . . . . . . . 23.117 Gelle v Denmark (CERD 34/04). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.88 Hagan v Australia (CERD 26/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.89 Jewish Community of Oslo v Norway (CERD 30/03) . . . . . . . . . . . . . . . . . 18.87 Quereshi v Denmark (CERD /33/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.85 Sefic v Denmark (CERD 32/03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.117 Yilmaz-Dogan v The Netherlands (CERD 1/84) . . . . . . . . . . . . . . . . . . . . 23.103 Zentralrat Deutscher Sinti und Roma et al v Germany (CERD 38/06) . . . . 18.88

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Committee on the Elimination of Discrimination against Women AT v Hungary (CEDAW 2/03) . . . . . . . . . . . . . . . . . . . . . . . . 1.114, 9.57, 23.107 Abramova v Belarus (CEDAW 23/09) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.212 Dayras v France (CEDAW 13/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.56 GD and SF v France (CEDAW 12/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.56 Goekce v Austria (CEDAW 5/05) . . . . . . . . . . . . . . . . . . 1.114, 6.27, 8.89, 23.107 Kell v Canada (CEDAW 19/08) . . . . . . . . . . . . . . . . . . . . . . 1.114, 23.37, 23.107 LC v Peru (CEDAW 22/09) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.91 Muñoz Vargas and Vicuña v Spain (CEDAW 7/05) . . . . . . . . . . . . . . . . . . . 23.10 RKB v Turkey (CEDAW 28/10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.24 Szijjarto v Hungary (CEDAW 4/04) . . . . . . . . . . . . . . . 2.22, 9.148, 20.47, 23.110 Teixiera v Brazil (CEDAW 17/08) . . . . . . . . . . . . . . . . . . . . . . 1.114, 8.89, 23.38 VK v Bulgaria (CEDAW 20/08) . . . . . . . . . . . . . . . . . . . . . . . 1.65, 1.114, 23.107 Vertido v Philippines (CEDAW 18/08) . . . . . . . . . . . . 9.66, 14.24, 23.106, 23.107 Yildirim v Austria (CEDAW 6/05) . . . . . . . . . . . . . . . . . 1.114, 6.27, 8.89, 23.107 European Court of Human Rights Aydin v Turkey (1998) 25 EHRR 251 . . . . . . . . . . . . . . . . . . . . . . . . . . 9.03, 9.05 Belilos v Switzerland (1988) 10 EHRR 466 . . . . . . . . . . . . . . . . . . . . . . . . . 26.20 Brannigan and McBride v United Kingdom (1994) 17 EHRR 539 . . . 26.79–26.80 Handyside v UK (1979) 1 EHRR 737 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.128 Ireland v UK (1979–80) 2 EHRR 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.05, 9.42 Laskey, Jaggard and Brown v UK (1997) 24 EHRR 39 . . . . . . . . . . . . . . . . 16.49 LCB v UK (1999) 27 EHRR 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.85 Louzidou v Turkey (1995) 20 EHRR 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.35 Osman v UK (2000) 29 European Human Rights Review 245 . . . . . . 1.112–1.113 Soering v UK, No 161 (1989) 11 EHRR 439 . . . . . . . . . . . . . . . . . . . . . 1.77, 9.79 Sunday Times v UK (1979–80) 2 EHRR 245. . . . . . . . . . . . . . . . . . . . . . . . . 1.83 International Court of Justice Advisory Opinion on Reservations to the Genocide Convention [1951] ICJ Rep 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.16, 26.35 Advisory Opinion on the Legality of the Threat or Use of Force of Nuclear Weapons, 8 July 1996, ICJ (1996) 4 ILM 809 . . . . . . . . . . . . . . . 8.83 Germany v USA (LaGrand) [1999] ICJ Rep 9 . . . . . . . . . . . . . . . . . . . . . . . 1.142

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Western Sahara Advisory Opinion [1975] ICJ Rep 12 . . . . . . . . . . . . . . 7.10, 7.12 Israel The Public Committee Against Torture in Israel v The Government of Israel et al (HCJ 5100/94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.42, 9.182 Privy Council Attorney-General (Canada) v Attorney-General (Ontario) [1937] AC 326 . . . 1.29 Pratt and Morgan v Attorney-General for Jamaica [1993] 4 All ER 769, [1993] 2 LRC 349, [1994] 2 AC 1 . . . . . 9.79, 11.19, 26.31, 26.41 Australia Commonwealth v Tasmania (1983) 158 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . 1.29 McGinty v Western Australia (1996) 186 CLR 140 . . . . . . . . . . . . . . . . . . . 22.38 Ridgeway v The Queen (1995) 184 CLR 19 . . . . . . . . . . . . . . . . . . . . . . . . 15.05 Norway Aursunden Case 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05, 24.42 Korssjofjell Case 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05 Tamnes Case 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05 United Kingdom Regina (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2007] EWCA Civ 498 . . . . . . . . . . . . . 12.45 United States Citizens United v Federal Election Commission, 130 S Ct 876 (2010) . . . . . 3.20

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Table of Conventions, Treaties, and International Instruments The table excludes the International Covenant on Civil and Political Rights and its Protocols which are covered in the subject index. References in bold indicate that the text of the Article is extracted. African Charter of Human and People’s Rights 1981 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.06 American Convention on Human Rights 1969 horizontal obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.111 Charter of the United Nations 1945 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.83 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.22, 8.84, 18.77, 7.04, 7.23 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.02, 1.01, 1.12 Art 1 . . . . . . . . . 9.04, 9.06, 9.09, 9.11, 9.18, 9.22, 9.23, 9.24, 9.25, 9.47, 9.69 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.40 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.159, 9.180 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.41 Art 3 . . . . . . . . . . . . . . . . . . . . . . . 9.14, 9.15, 9.65, 9.106, 9.108, 9.110, 9.111, 9.112, 9.113, 9.115, 9.117, 9.119, 9.121, 9.122, 9.123 Arts 4–9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.188 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.191 Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.180 Art 5(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.191 Art 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.190 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.190 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.191 Art 8(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.191 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.191, 9.194 Art 9(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.191

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Arts 10–13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.03 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.192, 9.194 Art 10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.193, 9.195, 9.196 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.153, 9.152 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.168, 9.170 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.168, 9.171, 9.191 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.174, 9.180, 9.191 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.156 Art 16 . . . . . . . . . . . . . . . . . . . . . 9.03, 9.11, 9.12, 9.18, 9.34, 9.36, 9.37, 9.38, 9.39, 9.47, 9.126, 9.170 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.07 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.49, 9.112 Art 22(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.31 Art 22(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.121 Convention on the Elimination of All Forms of Discrimination against Women 1979 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.59, 23.03,23.117, 23.131, 1.12 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.24, 1.114 Art 2(1)(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.103 Art 2(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.118 Art 2(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.118 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.92 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.115 Art 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.115 Art 12(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.85 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.22, 20.56 Art 23(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.22 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States 1970 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1975 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.26 European Convention on Human Rights 1951 generally . . . . . . . . . . . . . . . . . . . . . . . . . . 1.01, 5.10, 6.21, 18.69, 20.43, 26.35 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.112 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.25, 23.09 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.206 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.49 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13, 23.17, 26.14 Protocol No 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.11, 23.17

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European Patent Convention 1973 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.25 Extradition Treaty between the United States and Canada 1976 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.67, 4.33 Geneva Conventions, additional Protocol I 1977 Art 77(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.53 Geneva Convention relating to the Status of Refugees 1951 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.61 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.116 Genocide Convention 1948 reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.17, 26.35 German Unification Treaty 1990 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.17 Hague Convention on the Civil Aspects of Child Abduction 1980 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.32 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.32 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.95, 3.09, 21.50, 21.31 ILO Convention concerning Discrimination in Employment or Occupation 1958 (No 111) generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.50 ILO Convention Concerning Forced of Compulsory Labour 1930 (No 29) generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.06 ILO Convention Concerning Freedom of Association and Protection of the Right to Organise 1948 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.24 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.25 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.26 Art 22(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.25, 19.21, 19.25, 19.26 ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries 1989 (No 169) generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.15 ILO Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst forms of Child Labour 1989 (No 182) generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.46 ILO Convention concerning Trade Union Rights 1948 (No 87) generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.21

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Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.25 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.26 ILO Convention concerning Minimum Age for Admission to Employment 1973 (No 138) generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.46 Inter-American Convention on Human Rights 1969 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.02 Inter-American Convention to Prevent and Punish Torture 1985 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.10 International Convention on the Elimination of All Forms of Racial Discrimination 1966 generally . . . . . . . . . . . . . . . . . . . . . . . . 1.12, 7.20, 23.03, 23.11, 23.131, 26.40 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.24 Art 1(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.85 Art 2(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.88, 23.103 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.85, 23.92 Art 2(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.114 Art 2(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.115 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.85, 18.88, 23.12 Art 5(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.14 Art 5(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.24 Art 5(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.24 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.87, 18.88, 18.89 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.89, 23.115 International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families 1990 Art 16(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.114 International Covenant on Economic Social and Cultural Rights 1966 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.01, 1.10, 1.25, 1.33, 21.04, 26.40 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.29, 23.14, 23.15 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.17, 23.14, 23.25 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.14 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.35 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.35 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.26 Art 8(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.29, 19.24 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.14 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.01 Optional Protocol 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.11, 23.14

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International Law Commission, Guide to Practice on Reservations to Treaties generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.05, 26.19 Guideline 3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.21 Guideline 4.4.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.25 Guideline 4.4.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.25 London Charter 1945 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.90 Rome Statute of the International Criminal Court 1998 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.214 Art 68(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.102 Art 7(2)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.98 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery 1956 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03 Art 1(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.08 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials 1990 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.07 Principle 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.07 UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment 1988 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.200 UN Code of Conduct for Law Enforcement Officials 1978 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.200, 9.214 UN Convention on the Rights of the Child 1989 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.03, 21.04, 21.05, 1.01, 21.02, 21.63 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.19 Art 7(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.62 Art 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.53, 26.61 Optional Protocol (recruitment into the armed forces) 2002 . . . . . . . . . . 21.53 Optional Protocol (sale of children, sexual exploitation etc) 2002 . . . . . . 21.46 UN Convention relating to the Status of Refugees 1951 Art 1F . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.119 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.16 UN Declaration on the Elimination of All Forms of Discrimination based on Religion or Belief 1981 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.01

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UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 1992 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.01 UN Principles of Medical Ethics in the Protection of Prisoners and Detainees 1982 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.200 UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) 1987 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.237 UN Standard Minimum Rules for the Treatment of Prisoners 1957 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.214, 9.200 Rules 10, 12, 17, 19, 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.132 Rule 22(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.137 Universal Declaration of Human Rights 1948 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.11, 1.136, 26.40 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.09 Arts 2–21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.09 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.87 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.87, 23.14 Art 17(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.10 Arts 22–7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.09 Vienna Conventions on the Law of Treaties 1969 and 1986 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25.18, 26.38, 26.40, 26.49 Art 2(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.10 Art 2(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.10 Arts 19–23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.18 Art 19(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.16 Art 20(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.17 Vienna Convention on the Succession of States in Respect of Treaties 1978 generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.46

Table of Comments, Recommendations, etc., of the Various International Committees which Deal with Human Rights References in bold indicate that part of the text of the Comment etc is extracted. Committee Against Torture General Comment 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.15, 9.57, 9.41, 9.57 Committee on the Elimination of all Forms of Discrimination Against Women General Recommendation 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.107, 23.109 Committee on the Elimination of Racial Discrimination General Recommendations no 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.85 no 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.85, 18.87 no 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.11, 23.111 no 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05, 7.09, 7.10, 7.14 no 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.16, 24.38, 24.40, 24.41 Human Rights Committee General Comments no 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.50, 23.84 no 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.84, 23.113 no 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.59 no 6 . . . . . . . . . . . . . . . . . . . . . . . 1.103, 8.02, 8.20, 8.27, 8.46, 8.75, 8.83, 9.81 no 8 . . . . . . . . . . . . . . . . . . . . . 11.08, 11.31, 11.45, 11.53, 11.54, 11.58, 11.89 no 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.19, 18.90, 18.91 no 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.75, 18.77, 18.78 no 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.44, 7.01, 7.03, 7.04, 7.22 no 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.01, 14.107 no 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.44, 8.84, 8.85, 8.87, 8.103 no 15 . . . . . . . . . . . 1.44, 4.02, 12.12, 12.16, 13.03, 13.09, 13.13, 13.14, 13.16 no 16 . . . . . . . . . . . . . . . . . . . . . . . . . 11.96, 16.04, 16.06, 16.09, 16.10, 16.11, 16.13, 16.15, 16.17, 16.18, 16.27, 16.31, 16.32, 16.35,

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16.41, 16.50, 16.58, 16.59, 16.60, 18.22, 20.15, 26.57 no 17 . . . . . . . . . . . . . . 21.06, 21.07, 21.15, 21.17, 21.19, 21.23, 21.26, 21.29, 21.38, 21.39, 21.41, 21.47, 21.52, 21.55, 21.56, 21.61, 21.63 no 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.40, 23.48, 23.84, 23.87 no 19 . . . . . . . . . 20.02, 20.03, 20.04, 20.06, 20.41, 20.47, 20.51, 20.52, 20.55 no 20 . . . . . . . . . . . . . . . . . . . . . 1.103, 9.19, 9.25, 9.26, 9.28, 9.40, 9.43, 9.58, 9.59, 9.60, 9.98, 9.109, 9.127, 9.132, 9.141, 9.143, 9.146, 9.150, 9.151, 9.154, 9.156, 9.159, 9.160, 9.161, 9.183, 9.185, 25.24 no 21 . . . . . . . . . . . . . . . 1.133, 9.195, 9.196, 9.200, 9.214, 9.232, 9.237, 9.240 no 22 . . . . . . . . . . . . . . 17.01, 17.02, 17.12, 17.14, 17.19, 17.28, 17.29, 17.30, 17.37, 17.38, 17.42, 17.43, 17.44, 17.45, 18.66 no 23 . . . . . . . . . . . . . . 1.103, 22.19, 24.01, 24.02, 24.03, 24.06, 24.10, 24.13, 24.15, 24.19, 24.22, 24.29, 24.31, 24.35, 24.46, 24.53, 24.55 no 24 . . . . . . . . . . . . . . . . . . . . . 1.16, 1.127, 26.05, 26.06, 26.07, 26.08, 26.16, 26.17, 26.20, 26.22, 26.23, 26.24, 26.25, 26.26, 26.28, 26.30, 26.33, 26.34, 26.35, 26.37, 26.38, 26.65 no 25 . . . . . . . . . . . . . . 18.03, 18.61, 22.02, 22.04, 22.07, 22.08, 22.11, 22.13, 22.21, 22.22, 22.23, 22.25, 22.27, 22.28, 22.33, 22.35, 22.36, 22.38, 22.39, 22.41, 22.45, 22.47, 22.49, 22.50, 22.52, 22.55, 22.56, 22.57, 22.58, 22.61, 22.62 no 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.129, 26.40, 26.45, 26.49, 26.50 no 27 . . . . . . . . . . . . . . . . . . . . . 1.83, 12.02, 12.05, 12.13, 12.17, 12.19, 12.28, 12.30, 12.33, 12.36, 12.37, 12.40, 12.42, 12.44, 18.33 no 28 . . . . . . . . . . . . . . . 10.20, 1.44, 1.132, 8.43, 8.88, 8.91, 9.57, 9.57, 9.212, 9.229, 9.236, 10.11, 10.21, 11.10, 12.05, 12.28, 13.06, 14.32, 16.53, 16.56, 17.27, 18.71, 20.06, 20.52, 20.54, 21.24, 21.25, 23.02, 23.04, 23.15, 23.35, 23.84, 23.96, 24.12, 26.52, 26.60, 26.62, 26.66, 26.79 no 29 . . . . . . . . . . . . . . . . . . . . 26.56, 26.57, 26.58, 26.59, 26.61, 26.67, 26.69, 26.70, 26.71, 26.74, 26.76, 26.77, 26.79, 26.80, 26.81 no 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.42 no 31 . . . . . . . . . 1.16, 1.27, 1.28, 1.46, 1.85, 1.99, 1.102, 1.107, 1.118, 1.120, 1.126, 1.133, 1.134, 2.13, 3.42, 4.12, 4.16, 4.19, 4.21, 4.34, 4.37, 8.29, 9.99, 9.100, 23.97, 25.02, 25.04, 25.16, 25.24, 25.25, 25.26 no 32 . . . . 8.52, 11.59, 13.08, 14.02, 14.03, 14.07, 14.18, 14.22, 14.25, 14.29, 14.33, 14.34, 14.37, 14.44, 14.48, 14.50, 14.53, 14.55, 14.57, 14.58, 14.60, 14.67, 14.90, 14.97, 14.101, 14.105, 14.106, 14.109, 14.113, 14.116, 14.118, 14.122, 14.126, 14.129, 14.141, 14.145, 14.152, 14.166, 14.169, 14.177, 14.179, 14.183, 14.187, 14.187, 14.190, 14.194, 14.198, 14.204, 14.210, 14.214, 18.22, 26.24, 26.67, 26.72, 26.73 no 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.49, 1.60, 1.61, 1.62, 1.64 no 34 . . . . . . . . . . . . . . . . . . . . . . . . . . 1.44, 12.29, 18.02, 18.03, 18.06, 18.08, 18.18, 18.20, 18.21, 18.22, 18.27, 18.31, 18.32, 18.33, 18.34, 18.37, 18.44, 18.49, 18.55, 18.66, 18.67, 18.69, 18.74, 18.94, 18.95, 26.27

Table of Abbreviations CAT

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CEDAW Convention on the Elimination of All Forms of Discrimination Against Women CERD Committee on the Elimination of Racial Discrimination CRC Convention of the Rights of the Child CROC Committee on the Rights of the Child ECHR European Convention on Human Rights ESD Right of External Self Determination HRC Human Rights Committee ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ILC International Law Commission ICESCR International Covenant on Economic, Social and Cultural Rights ISD Right of Internal Self Determination OP First Optional Protocol UN United Nations

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A Note on Style and Citation As there is much primary material extracted in this book, it is necessary to include an explanation about the style and citations used. Paragraph numbers in text: The book is arranged within chapters with sequential paragraph numbers such as [1.01]. However, not all paragraphs have their own separate number. Indeed, each number refers to a self-contained topic rather than one paragraph. The use of these numbers has facilitated cross-referencing. A reference to paragraph [1.01] will appear in the text or the footnotes as [1.01]. ‘Authors’: In extracted cases, the applicant (the person who is bringing the case) is usually referred to as an ‘author’, in line with the language used by the Human Rights Committee itself. Citation of Optional Protocol Communications: The system of citing Optional Protocol communications has been respectfully borrowed from that used by M Nowak, in his CCPR Commentary of 1993. An example of a cited communication is as follows: Lovelace v Canada (27/77). The first number is the communication number, accorded to a case on the basis of when it was received by the UN human rights secretariat. Lovelace was the 27th registered communication. The latter number refers to the year of the communication’s submission, 1977. It does not refer to the date of the decision. General Comments: The text often refers to ‘General Comments’. General Comments are expanded interpretations of rights in the ICCPR, though occasionally they may concern other issues, such as reservations or denunciations. Occasionally in the extracts, the General Comment will be referred to by two numbers: eg ‘General Comment 20(44)’. The bracketed number refers to the session in which the General Comment was adopted, and is an alternative way of citing a General Comment. We have chosen to cite General Comments by their sequential number alone. Concluding Observations: The text also often refers to Concluding Observations on States. These are comments issued by the HRC which address the ICCPR compatibility of the various States Parties. The Concluding Observations are cited

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for their jurisprudential value—ie they help identify the meaning of the various ICCPR rights. They are not herein cited in order to draw particular attention to the human rights records of the States concerned. References to Committee Members: The HRC is a quasi-judicial body, so members are not referred to as ‘Judge X’. Rather, HRC members are generally called Mr X, Ms Y, or Mrs Z. There are some variations, such as Lord Colville, or Sir Nigel Rodley. Paragraph numbers within Extracts: In most extracts, the internal numbers refer to paragraph numbers in the material extracted. For example, all majority decisions by the HRC have internal paragraph numbers. In some minority decisions however, there are no paragraph numbers. Footnotes within Extracts: We have generally excluded the footnotes attached to extracts of primary material.

Part I

Introduction

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1 Introduction • Civil and Political Rights—the Philosophical Background . . . . . . . . . . [1.03] • Natural Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.03] • The Universal Declaration of Human Rights. . . . . . . . . . . . . . . . . . . . [1.09] • Two Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.10] • The International Covenant on Civil and Political Rights. . . . . . . . . . . . [1.12] • Ratification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.13] • Substantive Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.14] • Supporting Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.15] • The ICCPR and Domestic Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.25] • The Human Rights Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.31] • Reporting System and Concluding Observations . . . . . . . . . . . . . . . . [1.37] • General Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.43] • Inter-State Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.45] • Individual Communications under the Optional Protocol . . . . . . . . . . [1.48] • Requests for Interim Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.64] • Interpretation and Development of ICCPR norms . . . . . . . . . . . . . . . . . [1.68] • General Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.69] • The Role of Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.78] • Limitations to ICCPR Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.82] • The ICCPR amid International Law . . . . . . . . . . . . . . . . . . . . . . . . . . [1.87] • Positive Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.100] • State Responsibility: Vertical and Horizontal Obligations . . . . . . . . [1.106] • Systemic Human Rights Abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.116] • Cultural Relativism and Civil and Political Rights . . . . . . . . . . . . . . . . [1.119] • Individual and Collective Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.120] • Rights and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.121] • Predominance of Civil and Political Rights over Economic, Social, and Cultural Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.122] • Economic Relativism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.123] • The ICCPR and Cultural/Economic Relativism . . . . . . . . . . . . . . . . [1.125] • The Human Rights Committee—an Appraisal . . . . . . . . . . . . . . . . . . . [1.138] • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1.144]

[1.01] The International Covenant on Civil and Political Rights (ICCPR) was adopted by the United Nations (UN) in 1966, and came into force upon receiving the requisite number of ratifications in 1976. It is probably the most important human rights treaty in the world, given that it has universal coverage (unlike eg the European Convention on Human Rights 1951 (ECHR)), it contains a large number of rights (unlike single-issue treaties such as the Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment 1984 (CAT)),

The ICCPR

4

and it purports to apply to all classes of person (unlike eg the Convention on the Rights of the Child 1989 (CRC)). Furthermore, a large body of jurisprudence has emerged under the ICCPR, unlike its sister treaty, the International Covenant on Economic Social and Cultural Rights (ICESCR). It has also been incorporated into the domestic law of many States Parties.1 [1.02] The ICCPR is designed to protect civil and political rights, such as the right to life, freedom from arbitrary detention, and freedom of expression. As such, it contains a list of substantive human rights guarantees in its Part III. Part II provides supporting guarantees, such as the necessary obligation upon States Parties to provide domestic remedies for abuses of ICCPR rights. Part IV establishes a monitoring and supervisory system, under which records of States Parties implementing the ICCPR can be tracked. Essentially, Part IV establishes the Human Rights Committee (HRC), the treaty-monitoring body for the ICCPR, and outlines some of its functions. Furthermore, under the First Optional Protocol (OP), a subsidiary treaty to the ICCPR, the HRC can consider communications from individuals alleging violations of their ICCPR rights by States Parties to the OP. A Second Optional Protocol provides further substantive civil rights guarantees by prohibiting the application of the death penalty.

Civil and Political Rights—The Philosophical Background NATURAL RIGHTS

[1.03] The notion of civil and political rights essentially stems from the Western liberal philosophies of the seventeenth and eighteenth centuries. In particular, Locke’s ‘Second Treatise of Government’ held that men in a ‘state of nature’ were born in a state of equality and inherently possessed ‘natural rights’, such as rights to life, liberty, and property.2 Similar ideas informed the French philosophers of the Age of Enlightenment in the eighteenth century, such as Rousseau, Montesquieu, and Voltaire, who argued that such rights stemmed from the inherent rationality and virtue of man, championed over the ‘irrational’ scientific and religious dogma which had predominated in the middle ages.3 [1.04] Natural rights theories were highly influential in Western political thought in the late eighteenth century, particularly in the revolutionary fervour of the United 1 For example, the ICCPR has been directly incorporated into the law of numerous States Parties such as Finland, the Netherlands, the Russian Federation, and the Republic of Korea (South Korea). It has also provided the template for a number of municipal Bills of Rights, such as those of Hong Kong, New Zealand, Victoria (Australia), and the Australian Capital Territory. 2 J Locke, The Second Treatise of Government, reprinted in P Laslett (ed), Locke, Two Treatises of Government (2nd edn, Cambridge University Press, 1988), 265ff. 3 BH Weston, ‘Human Rights’ (1984) 3 Human Rights Quarterly 257 at 259. Sexist language is deliberately used here, as it does not seem that the natural rights theories of the seventeenth and eighteenth centuries applied equally to women. See H Lauterpacht, International Law and Human Rights (Garland Publishing, 1973), 104–5.

Introduction

5

States and France. For example, the United States Declaration of Independence in 1776 declared ‘that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness’. A similar ‘natural rights’ influence can be seen in the French Declaration of the Rights of Man and of the Citizen of 1789. [1.05] In classical natural rights theory, societies were artificial yet convenient constructs formed by a ‘social contract’, under which men maintained their freedoms subject to the qualification that they were not to threaten or harm the freedoms of others. For their part, governments were to respect these pre-existing natural rights of men, intervening only in so far as necessary to enforce this social contract. Thus, early natural law theorists propounded a philosophy of limited or ‘small’ government, with an emphasis on freedoms from government interference, rather than rights to government-provided entitlements. Traditional civil and political rights, the subject matter of both the US Bill of Rights and the French Declaration, are largely concerned with the liberty to act in accordance with one’s own wishes. Enjoyment of civil and political rights was not understood to require State assistance, so civil and political rights conform to the libertarian nature of early Western capitalist societies. [1.06] Whereas early natural rights attached to life, liberty, and property, they did not attach to economic or social entitlements, such as rights to work and to a reasonable standard of living. Enjoyment of such ‘rights’ was perceived to require positive intervention on the part of the government4 which, it was feared, might permit a government to impose oppressive market restrictions on the spurious justification of enhancing rights. Thus, a laissez-faire approach to economic relationships was applied in the Western capitalist societies of the eighteenth and early nineteenth centuries; economic relations and freedom of contract were generally unconstrained by governmental regulation.5 [1.07] Since the late eighteenth century, natural rights theories have been attacked on numerous bases, such as their egoistic and arguably anti-social premise (ie the social contract is put in place to protect men from one another),6 or as ‘anarchical fallacies’ which challenged the stability of society7 and the sovereignty of representative parliaments.8 The existence of severe human rights abuse in the United States in the form of slavery, and in post-revolutionary France in the form of the ‘The Reign of Terror’, in spite of their constitutional guarantees of rights,

4 Weston, ‘Human Rights’, 264. However, as indicated below, the equation of civil and political rights/economic, social, and cultural rights with negative/positive rights is simplistic. 5 Lauterpacht, International Law and Human Rights, 105. 6 For example, Karl Marx, ‘On the Jewish Question’, reprinted in D McLellan (ed), Marx: Selected Writings (Oxford University Press, 1977), 51–7. 7 Jeremy Bentham, ‘Anarchical Fallacies’, reprinted in J Waldron (ed), Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man (Methuen, 1987) 46ff. 8 AV Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan, 1964), 199ff.

The ICCPR

6

lent credence to Bentham’s famous characterization of natural rights as ‘nonsense upon stilts’.9 [1.08] Despite criticisms, natural rights theories endured and matured, expanding their scope to encompass the rights of women, slaves, and workers.10 For example, notions of workers’ entitlements, which tempered the excesses of early capitalism, began to emerge in Western societies in the nineteenth century.11 Indeed, modern Western liberalism has evolved from its excessively libertarian origins to accommodate economic entitlements in the form of the ‘safety net’ of a welfare State;12 while the welfare State bestows economic rights on the most needy, it extracts an economic price from the less needy in the form of taxation.13

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

[1.09] After the atrocities of the Second World War demonstrated the horrendous consequences of an utter disregard for the rights of the human person, natural rights metamorphosed into internationally recognized ‘human rights’ principles in 1948 with the adoption by the UN of the Universal Declaration of Human Rights (UDHR).14 Article 1 UDHR is reminiscent of the early Western Bills of Rights in its proclamation that ‘[a]ll human beings are born free and equal in dignity and rights’.15 Furthermore, the document was again dominated by civil and political standards in articles 2 to 21. While it is true that notions of human rights and dignity may be found in the philosophical origins of many civilizations outside the Western world,16 it is equally true that the large majority of States involved in drafting the UDHR were informed in their thinking by natural rights theory.17 Nevertheless, the UDHR also includes a number of economic social and cultural rights in articles 22 to 27, indicating a partial departure from orthodox natural rights concepts.18

9

10 Bentham, ‘Anarchical Fallacies’, 53. Weston, ‘Human Rights’, 261. Weston, ‘Human Rights’, 265. 12 H Steiner, P Alston, and R Goodman, International Human Rights in Context (3rd edn, Oxford University Press, 2008), 512–16. 13 D Kelley, Life of One’s Own: Individual Rights and the Welfare State (Cato Institute, 1998), quoted in Steiner, Alston, and Goodman, International Human Rights in Context, 286–7. 14 See also M Ignatieff, Human Rights as Politics and Idolatry (Princeton University Press, 2001), 65–6. 15 J Morsink, ‘The Philosophy of the Universal Declaration’ (1984) 3 Human Rights Quarterly 309 at 310–11. 16 See eg PG Lauren, The Evolution of International Human Rights (University of Pennsylvania Press, 1998), Ch 1. 17 Morsink, ‘The Philosophy of the Universal Declaration’, 310–16. 18 Morsink, ‘The Philosophy of the Universal Declaration’, 325–32 on the inclusion of these ‘new rights’ in the UDHR. Arguments have arisen that the inclusion of these new rights was in keeping with modern liberal theory, a descendant of the natural rights tradition: see Steiner, Alston, and Goodman, International Human Rights in Context, 269–72. 11

Introduction

7

TWO COVENANTS

[1.10] Most of the rights within the UDHR found their way into treaty form in the two International Covenants, the ICCPR and the ICESCR.19 The natural rights language of the UDHR is again reflected in the preambles to the two Covenants, with both proclaiming ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family’, and the contention that ‘rights derive from the inherent dignity of the human person’. [1.11] It has always been part of UN rhetoric that civil and political rights, on the one hand, and economic social and cultural rights on the other, are interdependent and indivisible. However, strict adherence by some governments to orthodox natural rights theory may have contributed to the decision to split the UDHR rights into two Covenants. In particular, Western governments argued that the two sets of rights were fundamentally different, and that this dichotomy should be reflected in two different treaties. In particular, it was argued that only civil and political rights were justiciable;20 only the ‘liberal [civil and political] rights directed against undue State interference’ were felt to be ‘directly enforceable before courts’.21 The Eastern bloc on the other hand argued against the division of rights into two treaties, as it potentially implied a hierarchy between the two sets of rights.22 The eventual triumph of the Western view led to the creation of two very different Covenants. Despite the rhetoric of interdependence and indivisibility in the Covenants’ preambles, there is no doubt that the ICCPR is the stronger of the two. The ICCPR contains the ‘classical’ human rights, that is civil and political rights, which are immediately binding upon States Parties under article 2(1), and which are justiciable at international level under the OP.23 The ICESCR rights are, in contrast, to be implemented progressively according to a State’s available resources, and are not as yet internationally justiciable. An Optional Protocol to ICESCR was adopted by the UN in 2008, which will enable individual complaints under that treaty. It came into force in May 2013 upon the ratification of ten States parties. Largely as a consequence of the vague parameters and lack of interpretation of States’ obligations thereunder, the ICESCR guarantees have remained normatively and jurisprudentially underdeveloped compared to the modern-day ‘natural rights’ in the ICCPR.

19 A notable exclusion concerns the right to property in art 17(1) UDHR, which would not have conformed to the socialist theories prevailing in the Eastern Bloc while the Covenants were being drafted. 20 D McGoldrick, The Human Rights Committee (Oxford University Press, 1994), para 1.16. 21 M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, Kehl, 2005), xxii–xxiii. 22 McGoldrick, The Human Rights Committee, para 1.25. 23 It must be noted that some non-classical rights appear in the ICCPR, such as the art 1 right of self-determination, the rights of protection to families and children in arts 23 and 24, and the cultural rights provision in art 27.

The ICCPR

8

The International Covenant on Civil and Political Rights [1.12] The ICCPR is the most comprehensive and well-established UN treaty on civil and political rights; it has yielded the lion’s share of UN jurisprudence in this area. This book is therefore largely concerned with the ICCPR, and jurisprudence thereunder. Other UN human rights treaties have generated important material on specific civil and political rights, some of which will be referred to in the relevant chapters. In particular, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT) has produced important material on the right to be free from torture, inhuman or degrading treatment, or punishment. The two non-discrimination treaties, the International Convention on the Elimination of All Forms of Racial Discrimination 1966 (ICERD) and the Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW), have generated substantial material on the right to be free from discrimination, and are referenced briefly in this book. RATIFICATION

[1.13] The ICCPR was adopted by the UN General Assembly in 1966, and came into force in 1976 once it had 35 ratifications.24 As of October 2012, there were 167 States Parties to the ICCPR, 114 parties to the First Optional Protocol, and 75 parties to the Second Optional Protocol.25 The number of parties to both the ICCPR and the First Optional Protocol has increased markedly since the end of the Cold War, when human rights became a less politicized discipline within the United Nations. For example, the United States, a notable long-term absentee from the international human rights system, ratified the ICCPR in 1992. In the same year, the First Optional Protocol entered into force for the Russian Federation. SUBSTANTIVE RIGHTS

[1.14] The substantive guarantees of the ICCPR are contained in Part III, though article 1 is contained anomalously in Part I.26 The substantive rights are: Article 1: Article 6: Article 7: Article 8: Article 9: Article 10: 24

Right of Self-determination Right to Life Freedom from Torture, Inhuman and Degrading Treatment, and Punishment Freedom from Slavery, Servitude, and Forced Labour Rights to Liberty and Security of the Person Right of Detained Persons to Humane Treatment

Article 49. United National Treaties Database, (accessed October 2012). Some States have succeeded to these obligations. See generally on succession, [26.45]ff. 26 This may reflect its anomalous status as a non-individual right: see [7.24]. 25

Introduction Article 11: Article 12: Article 13: Article 14: Article 15: Article 16: Article 17: Article 18: Article 19: Article 20: Article 21: Article 22: Article 23: Article 24: Article 25: Article 26: Article 27:

9

Freedom from Imprisonment for Inability to Fulfil a Contract Freedom of Movement Right of Aliens to Due Process facing Expulsion Right to a Fair Trial Freedom from Retroactive Criminal Law Right to Recognition as a Person before the Law Rights of Privacy Freedom of Thought, Conscience, and Religion Freedom of Opinion and Expression Freedom from War Propaganda, and Freedom from Incitement to Racial, Religious, or National Hatred Freedom of Assembly Freedom of Association Rights of Protection of the Family and the Right to Marry Rights of Protection for the Child Right of Participation in Public Life Right to Equality before the Law and Rights of Non-Discrimination Rights of Minorities

Supporting Guarantees [1.15] Part II of the Covenant contains supporting guarantees in articles 2 to 5. [1.16]

GENERAL COMMENT 31

¶5. The article 2, paragraph 1, obligation to respect and ensure the rights recognized by in the Covenant has immediate effect for all States parties. Article 2, paragraph 2, provides the overarching framework within which the rights specified in the Covenant are to be promoted and protected. The Committee has as a consequence previously indicated in its General Comment 24 that reservations to article 2, would be incompatible with the Covenant when considered in the light of its objects and purposes.27

[1.17] Article 2(1) is fundamental; it is the ‘obligation’ provision that directs States immediately to implement the substantive ICCPR guarantees at the municipal level. In particular, article 2(1) obliges States to ‘respect and ensure enjoyment by all individuals within its territory, and subject to its jurisdiction’ the substantive ICCPR rights ‘without distinction of any kind’. The immediacy of the obligation facilitates the justiciability and definition of a State’s ICCPR duties. A State is either fulfilling its obligations or it is not; article 2(1) seems to allow no exceptions. The importance of this immediate obligation becomes apparent when one contrasts the progressive obligation in article 2(1) of the ICESCR. A State, under article 2(1) ICESCR, is required ‘to take steps . . . to the maximum of its available resources, with a view to achieving progressively the full realisation’ of ICESCR

27

See, on reservations, Ch 26.

10

The ICCPR

rights. It is not easy to define the content of a progressive duty, as it is difficult to establish when a breach of this duty arises. The word ‘available’ leaves too much ‘wiggle room for the State’.28 The progressive nature of ICESCR duties has definitely hampered the development of ICESCR norms. [1.18] Article 2(1) also defines the personal and territorial scope of the ICCPR; the beneficiaries of the ICCPR are ‘individuals’, while a State Party is responsible only for persons and events ‘within its territory and subject to its jurisdiction’.29 [1.19] Finally, article 2(1) also contains an important guarantee of nondis-crimination. Article 3 supplements this non-discrimination guarantee by specifically guaranteeing equality between men and women in the enjoyment of Covenant rights, and is arguably superfluous. Both articles 2(1) and 3 bolster the free-standing prohibition on discrimination in article 26.30 [1.20] Paragraphs 2 and 3 of article 2 supplement paragraph 1 by requiring specific measures of national protection of ICCPR rights. Article 2(2) obliges States to ‘adopt legislative or other measures as may be necessary to give effect to’ ICCPR rights. Thus, States must change their laws so as to conform to their ICCPR obligations. In a number of recent separate opinions, Mr Salvioli has explicitly found breaches of article 2(2) entailed in legislation which has generated an ICCPR breach.31 Such a violation is of course implicit whenever such a situation arises.32 [1.21] Article 2(3)(a) obliges States Parties to provide effective domestic remedies for persons whose ICCPR rights are violated. Article 2(3)(b) specifies that these remedies should be determined by a competent government body, ideally the judiciary, while article 2(3)(c) directs that such remedies must be enforced. [1.22] Article 4 confers rights on States Parties to derogate from their ICCPR obligations ‘in time of public emergency’. However, this right of derogation is strictly limited by internal provisions of article 4, so there are in-built guarantees against its abuse by the State. [1.23] Article 5 provides that ICCPR rights must not be abused by States, groups, or persons so as to undermine the enjoyment of ICCPR rights by others. For example, individuals must not abuse their rights to promote fascist policies which call for the destruction of the rights of others.33 Article 5(2) provides that the ICCPR must not be used as a pretext to lower the level of protection provided for civil and political

28 R Robertson, ‘Measuring State Compliance with the Obligation to Devote the “Maximum Available Resources” to Realising Economic, Social and Cultural Rights’ (1994) 16 Human Rights Quarterly 693, 694. 29 30 See generally Ch 4. See, on the non-discrimination guarantees, Ch 23. 31 See eg Weerawansa v Sri Lanka (1406/05). 32 See also separate opinion of Mr Lallah in Adonis v Philippines (1815/08). 33 MA v Italy (117/81), excerpted at [18.53].

Introduction

11

rights under other international treaties, or under municipal law or custom. Article 5(2) is a ‘savings’ provision, which preserves the sanctity of any laws that provide a higher level of human rights protection than is required by the ICCPR.34 [1.24] The supporting guarantees in articles 2 to 5 cannot be autonomously violated by a State Party. For example, one cannot claim a breach of one’s right to a remedy under article 2(3) without first establishing that one has a well-founded and arguable claim with regard to a substantive right in Part III [25.09].

The ICCPR and Domestic Law [1.25] Though the ICCPR imposes duties upon States in the international plane of law, the implementation of the rights therein is primarily a domestic matter.35 Indeed, article 2, the general obligation provision, requires States Parties to protect the ICCPR rights at the municipal level. International enforcement measures, such as the supervisory mechanisms of the HRC, are designed to be a secondary source of ICCPR rights protection. For example, individuals cannot utilize the individual complaints mechanism until they have exhausted domestic remedies.36 The primacy conferred on national enforcement manifests a concession to State sovereignty, as well as a recognition of the superior efficiency, expediency, and effectiveness of municipal enforcement systems.37 [1.26] Thus, States Parties have an international duty to translate the ICCPR guarantees into domestic rights for individuals.38 The actual domestic protection afforded to ICCPR rights depends on the legal and political system of the relevant State Party. For example, it is not necessary for a State to adopt a constitutional or even a statutory bill of rights which incorporates the ICCPR rights, so long as the various ICCPR rights are somehow protected.39 However, a constitutional bill of rights is probably the most efficient means of protecting ICCPR rights, and the HRC has certainly recommended in numerous Concluding Observations that such constitutional protection be adopted.

34 See the dissenting opinion of Mr Lallah in Kindler v Canada (470/91) for an example of the invocation of art 5(2). 35 See Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 28. 36 See generally Ch 6. 37 See DL Donoho, ‘Relativism versus Universalism in Human Rights: The Search for Meaningful Standards’ (1991) 27 Stanford Journal of International Law 345, 372–3; see also D Harris, ‘The International Covenant on Civil and Political Rights and the United Kingdom: An Introduction’, in D Harris and S Joseph, The International Covenant on Civil and Political Rights and United Kingdom Law (Clarendon Press, 1995), 6. 38 This interplay between rights/duties in international law and rights/duties in domestic law is comprehensively analysed in S Joseph, ‘A Rights Analysis of the Covenant on Civil and Political Rights’ (1999) 5 Journal of International Legal Studies 57. 39 See, however, the decision in Faure v Australia (1036/01), where the only way for Australia to implement the decision is to adopt a constitutional bill of rights to enable challenges to the validity of legislation on human rights grounds [25.09].

12 [1.27]

The ICCPR GENERAL COMMENT 31

¶13. Article 2, paragraph 2, requires that States Parties take the necessary steps to give effect to the Covenant rights in the domestic order. It follows that, unless Covenant rights are already protected by their domestic laws or practices, States Parties are required on ratification to make such changes to domestic laws and practices as are necessary to ensure their conformity with the Covenant. Where there are inconsistencies between domestic law and the Covenant, article 2 requires that the domestic law or practice be changed to meet the standards imposed by the Covenant’s substantive guarantees. Article 2 allows a State Party to pursue this in accordance with its own domestic constitutional structure and accordingly does not require that the Covenant be directly applicable in the courts, by incorporation of the Covenant into national law. The Committee takes the view, however, that Covenant guarantees may receive enhanced protection in those States where the Covenant is automatically or through specific incorporation part of the domestic legal order. The Committee invites those States Parties in which the Covenant does not form part of the domestic legal order to consider incorporation of the Covenant to render it part of domestic law to facilitate full realization of Covenant rights as required by article 2.40

[1.28]

GENERAL COMMENT 31

Of course, a State cannot plead, in mitigation of its ICCPR responsibilities, that its own municipal laws prohibit it from fulfilling its ICCPR obligations. ¶4. . . . The executive branch that usually represents the State Party internationally, including before the Committee, may not point to the fact that an action incompatible with the provisions of the Covenant was carried out by another branch of government as a means of seeking to relieve the State Party from responsibility for the action and consequent incompatibility. This understanding flows directly from the principle contained in article 27 of the Vienna Convention on the Law of Treaties, according to which a State Party ‘may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. Although article 2, paragraph 2, allows States Parties to give effect to Covenant rights in accordance with domestic constitutional processes, the same principle operates so as to prevent States Parties from invoking provisions of the constitutional law or other aspects of domestic law to justify a failure to perform or give effect to obligations under the treaty. In this respect, the Committee reminds States Parties with a federal structure of the terms of article 50, according to which the Covenant’s provisions ‘shall extend to all parts of federal states without any limitations or exceptions’.

[1.29] Article 50 of the ICCPR stipulates that the Covenant’s guarantees ‘extend to all parts of federal States without any limitations or exceptions’. Thus, central governments in federations, such as the United States, Canada, Australia, Brazil, Germany,41 Switzerland,42 Mexico,43 Argentina,44 and the Russian Federation, are required to guarantee that the laws and activities of their provincial counterparts 40 In numerous Concluding Observations (see [1.40] on Concluding Observations), the HRC has recommended the incorporation of the ICCPR into domestic law. However, incorporation is not an ICCPR obligation. 41 Concluding Observations on Germany (2004) UN doc CCPR/CO/80/DEU, para 12. 42 Concluding Observations on Switzerland (2009) UN doc CCPR/C/CHE/CO/3, para 6. 43 Concluding Observations on Mexico (2010) UN doc CCPR/C/MEX/CO/5, para 5. 44 Concluding Observations on Argentina (2010) UN doc CCPR/C/ARG/CO/4, para 8.

Introduction

13

conform to the Covenant’s norms. Indeed, violations of the Covenant have been found in a number of cases where the impugned law was a provincial law rather than a federal law.45 The violation is nevertheless attributed to the central government, as it is the government that is vested with international legal personality, and the actual treaty party. Of course, differences amongst the federal units of a State are permitted;46 regional differences are one of the characteristics of a federal system of government. Such differences nevertheless must be ‘reasonable and objective’ or else they will breach the Covenant’s non-discrimination provisions.47 Article 50 is an important guarantor of ICCPR rights; the effect of the ICCPR would be considerably diminished in federations if the provincial legal realm was excluded from the Covenant’s reach.48 It must be conceded that article 50 can create internal legal problems for central governments where they lack constitutional power to override or ‘correct’ provincial laws that breach the Covenant.49 [1.30] The actual domestic protection afforded to ICCPR rights depends on the legal and political system of the relevant State Party. In certain States, such as the Netherlands, the ICCPR has direct effect, and is therefore part of a State Party’s domestic law. Alleged breaches can be litigated in domestic courts. In other States, the ICCPR is not self-executing, and so is not automatically part of municipal law. For example, in the UK and Australia, treaties must be specifically incorporated into domestic law before their provisions are enforceable by domestic courts. In neither State has the ICCPR been so incorporated.50 However, discrete ICCPR rights are protected by miscellaneous statutes in both States, such as statutes regulating the exercise of police power, and anti-discrimination statutes. Furthermore, in both States, the ICCPR has an indirect effect in that its norms are used by the judiciary to construe ambiguous statutes and to fill lacunae in the common law.51

The Human Rights Committee [1.31] The HRC is created under article 28 of the ICCPR. It is a panel of 18 human rights experts. HRC members are nominated by the State Party of which they 45 See eg Ballantyne et al v Canada (359, 385/89) [18.39]; Waldman v Canada (694/96) [23.60]; Toonen v Australia (488/92) [16.50]; and Coleman v Australia (1157/03) [18.58]. 46 Cheban et al v Russia (790/97), para 7.4. 47 See generally Ch 23, on discrimination. See Lindgren et al v Sweden (298–9/88) and Hesse v Australia (1087/02), where complaints about alleged discrimination between different localities in one nation were unsuccessful (and inadmissible in Hesse). 48 See also Concluding Observations on Australia (2000) UN doc A/55/40, paras 516–17. 49 For example, the Canadian federal government does not necessarily have power over matters arising under international treaties, including the ICCPR; see eg Attorney-General (Canada) v Attorney-General (Ontario) [1937] AC 326. Therefore, the federal government may have to negotiate with provincial governments in order to correct ICCPR abuses. In contrast, the Australian federal government may override State laws that contradict Australia’s obligations under international treaties: see eg Commonwealth v Tasmania (1983) 158 CLR 1. 50 The Human Rights Act 1998 incorporates the European Convention on Human Rights into UK law. 51 See Justice M Kirby, ‘The Australian Use of International Human Rights Norms: From Bangalore to Balliol—a View from the Antipodes’ (1993) 16 University of New South Wales Law Journal 363.

The ICCPR

14 52

are nationals, and are elected by a ballot of all States Parties to serve four-year terms.53 Half of the HRC is elected every two years.54 It convenes three times a year for three-week meetings, though smaller working groups meet for a week prior to plenary meetings. [1.32] Article 31(2) ICCPR specifies that consideration be given to the ‘equitable distribution of membership and to the representation of the different forms of civilisation and of the principal legal systems’. Thus, States Parties should endeavour to elect a fair number of HRC members from Western Europe and Other States, Eastern Europe, Latin America and the Caribbean, Africa, and Asia. [1.33] Of particular importance is that HRC members act in their personal capacity.55 Though they are nominated by their own State, they do not sit as government representatives. Thus, HRC meetings are not overtly politicized unlike, for example, meetings of the United Nations Human Rights Council.56 Certain safeguards are taken to ensure political impartiality. For example, an HRC member does not participate in decisions which directly concern his/her State. However, States are of course unlikely to nominate members who are outspokenly opposed to their policies.57 HRC members have undoubtedly been influenced, perhaps unconsciously, by the politics and culture of their respective home States.58 Indeed, a conspicuous clash of political persuasions occurred between east and west throughout the Cold War, causing a degree of institutional paralysis.59 A growth in HRC initiatives has been evident in the 1990s, and has been facilitated by the greater degree of internal consensus since the end of the Cold War. [1.34] A survey of the curricula vitae of the 18 current members (as at October 2012) reveals that almost all members have no direct connections with their governments, and expert human rights qualifications. Thus, the current Committee seems to fulfil the requisite criteria of independence and expertise. This was not perhaps the case with early Committees, which had too many diplomats as members, who may have been inclined to push the ‘official’ view of their home States.60

52

53 Article 29 ICCPR. Article 32 ICCPR. This rule is necessarily implied by art 32(1) ICCPR. 55 Article 28(3) ICCPR. 56 The Human Rights Council is a body within the United Nations made up of 47 State government representatives. Proceedings within the Council are more politicized, as the Council members speak for their governments, rather than as independent human rights experts. 57 In this respect, note the failure in 1994 of the Federal Republic of Yugoslavia (Serbia-Montenegro) to renominate Mr Vojin Dimitrijevic as an HRC member. Mr Dimitrijevic was originally nominated by the government of the former Yugoslavia in 1982. 58 Harris, ‘The International Covenant on Civil and Political Rights’, 21. 59 S Joseph, ‘New Procedures Concerning the Human Rights Committee’s Examination of State Reports’ (1995) 13 Netherlands Quarterly of Human Rights 5, 5–6. See also L Heffernan, ‘A Comparative View of Individual Petition Procedures under the European Convention on Human Rights and the International Covenant on Civil and Political Rights’ (1997) 19 Human Rights Quarterly 78, 85. 60 A Bayefsky, The UN Human Rights Treaty System: Universality at the Crossroads (Kluwer Law International, 2001). 54

Introduction

15

[1.35] Though its Rules of Procedure provide for majority opinions, the HRC endeavours to make decisions by consensus.61 Such decisions of course carry more weight than majority opinions.62 However, consensus occasionally necessitates unsatisfactory compromises, which unfortunately dilute certain decisions.63 Though consensus remains the norm, more individual opinions have emerged from the HRC in recent years. [1.36] The HRC performs four essential functions in monitoring the ICCPR: it (1) conducts dialogues and draws conclusions from States’ reports; (2) issues General Comments which explain the meaning of ICCPR provisions; (3) hears inter-State complaints under article 41; and (4) makes decisions under the First Optional Protocol. These functions are largely replicated by the other treaty bodies, or will be once certain Optional Protocols come into force. REPORTING SYSTEM AND CONCLUDING OBSERVATIONS

[1.37] The HRC examines and comments upon State Party reports under article 40 of the ICCPR. This is the only compulsory monitoring mechanism under the ICCPR: States Parties are required to submit periodic reports on their implementation of the Covenant. States must submit an initial report within a year of the entry into force of the ICCPR, and periodic reports whenever the HRC so requests, normally every five years.64 Since 1999, with the most recent revision in 2010, the HRC has issued consolidated guidelines for State reports,65 which give important guidance to States on how to prepare adequate reports for the purposes of article 40. [1.38] It is now expected that States will liaise with local civil society organizations in preparing its report, and often such organization will submit their own ‘shadow report’ to the HRC, and will brief the HRC on the State in question.66 For example, the HRC has expressed concern to the Republic of Moldova over its exclusion of civil society organizations from the reporting process:67 ¶28 The Committee notes the State party’s acknowledgment that civil society organizations were not invited to consult during the preparation of its report and reiterates its view that civil society organizations can be an important support for the realization of human rights, including the rights set out in the Covenant. 61 Rules of Procedure of the Human Rights Committee, UN doc CCPR/C/3/Rev.10, 11 January 2012, rule 51. Rule 51 permits majority voting, but notes 1 and 2 to rule 51 prescribe a preference for consensus votes. 62 Joseph, ‘New Procedures Concerning the Human Rights’, 6. 63 M Schmidt, ‘Individual Human Rights Complaint Procedures based on United Nations Treaties and the Need for Reform’ (1992) 43 International and Comparative Law Quarterly 645, 656–8. 64 See Rules of Procedure of the Human Rights Committee, rule 66(2). 65 UN doc CCPR/C/2009/1, 22 November 2010. 66 See generally CCPR Centre, UN Human Rights Committee: Participation in the Reporting Process—Guidelines for Non-Governmental Organisations (NGOs), available at (accessed 11 February 2013). 67 Concluding Observations on Moldova (2009) UN doc CCPR/C/MDA/CO/2.

16

The ICCPR

The State party should facilitate the participation, through an appropriate consultative process, of civil society organizations in the preparation of future reports under the Covenant.

[1.39] In 1992, the HRC initiated a practice of calling for emergency reports from States suffering from acute human rights crises, such as Bosnia-Herzegovina, Croatia, and the former Republic of Yugoslavia (Serbia-Montenegro) in that year. Since then, the HRC has rarely used the emergency report procedure. Its existence does however ensure that the HRC and the other treaty bodies, which have also adopted the practice, can maintain their relevance in situations of extreme human rights abuse. On the other hand, the emergency report procedure can be problematic, as it would compromise the quasi-judicial role of the HRC if it was perceived to ‘target’ the States that it wishes to scrutinize, rather than examine each States Party according to when its respective reports are due.68 The UN Human Rights Council is perhaps better suited to making decisions which will inevitably be viewed as political, focusing its spotlight on particular ‘human rights hot spots’. [1.40] State Party reports are normally examined by the HRC in a public dialogue with State Party representatives. At the conclusion of the process, the HRC issues a set of Concluding Observations, which are adopted by consensus, and which act as a ‘report card’ for the State under the ICCPR. The HRC began adopting Concluding Observations only in 1992, despite the reporting system having been in operation since 1977. A State should use the concerns enunciated in its most recent set of Concluding Observations as a foundation for preparing its periodic reports, and each report should contain information on how the State will ensure it follows up on the Concluding Observations.69 The State’s response is followed up by the Special Rapporteur for the follow-up on Concluding Observations, a person appointed from within the Committee. [1.41] In October 2009, the HRC adopted a new reporting procedure based on lists of issues to be transmitted to States prior to the submission of each periodic report. A State’s replies to this list of issues now serve as its report under article 40, unless it opts out of the new procedure.70 [1.42] The reporting system has been plagued by instances of State noncooperation [1.141]. For example, many States are late in submitting their reports.71 In 2002 in General Comment 30, the HRC explicitly introduced a tougher line on the non-submission of reports, and/or the non-appearance of State delegations to defend the report. The HRC is now prepared to examine State reports in the absence of a State Party delegation if no delegation should present on the scheduled date,72

Bayefsky, The UN Human Rights Treaty System, 23–4. Guidelines for the treaty-specific document to be submitted by States parties under article 40 of the International Covenant on Civil and Political Rights (2010) CCPR/C/2009/1, paras 19–20. 70 Guidelines for the treaty-specific document, paras 14–15. This new procedure does not apply to initial reports, or reports which were already under consideration as of October 2009. 71 See eg Concluding Observations on the Philippines (2003) UN doc CCPR/CO/79/PHL, para 2. 72 General Comment 30, paras 3 and 4(a). See eg Concluding Observations on Gambia (2002) UN doc CCPR/CO/75/GMB, para 2. 68 69

Introduction

17

and is even prepared to examine a State’s ICCPR implementation record in the absence of a report after notifying the relevant State of the date of such examination.73 If reports or, in the absence of reports, ICCPR records are examined without State delegations, a Special Rapporteur will be appointed to attempt to establish or restore a dialogue with the relevant State.74 GENERAL COMMENTS

[1.43] The HRC initially refused to interpret its article 40 mandate as authorizing the issue of a consensus evaluation on a particular State’s report and subsequent dialogue. Some early HRC members, particularly those from the Eastern bloc, felt that such a practice would unduly interfere with a State’s internal affairs.75 In order to achieve consensus, the HRC initially interpreted article 40(4) as an authorization for the issue of comments addressed generally to all States Parties. [1.44] Hence, the HRC has issued numerous ‘General Comments’, which address matters of relevance to all States Parties. Most of these General Comments have expanded on the meaning of specific Covenant rights. Some Comments, such as General Comment 15 on ‘The Position of Aliens under the Covenant’ and General Comment 28 on ‘Equality of Rights between Men and Women’ have addressed a broader range of rights under a specific theme. A few Comments have addressed miscellaneous issues such as reservations, denunciations, and advice to States on how to prepare reports. Generally, the older Comments, such as that on article 1 (General Comment 12 on the right of peoples to self-determination) are less detailed and consequently less useful than the more elaborate later Comments (see eg General Comment 34 on freedom of expression). Despite their inception as an arguably weak compromise interpretation of article 40, the HRC’s General Comments have proven to be a valuable jurisprudential resource. They are extensively excerpted where relevant in the following chapters. INTER-STATE COMPLAINTS

[1.45] Under article 41 ICCPR, States Parties may submit complaints about violations of the ICCPR by another State if both States have made declarations that the HRC is competent to hear such complaints. Thus the procedure is optional. Although 48 States had made article 41 declarations as of October 2012, the inter-State complaints mechanism has never been utilized. Presumably this is

73 General Comment 30, para 4(b); See also Rules of Procedure, UN doc CCPR/C/3/Rev.10, rule 70, 11 January 2012. See eg Concluding Observations on Equatorial Guinea, (2004) UN doc CCPR/ CO/79/GNQ, para 2; Grenada (2009) UN doc CCPR/C/GRD/CO/1, para 2. The CERD Committee adopts a similar procedure (see its Concluding Observations on Malawi (2003) UN doc CCPR/C/63/ CO/14). 74 General Comment 30, para 5. 75 See eg Mr Graefrath of the German Democratic Republic, at UN doc CCPR/C/SR 231, para 10.

18

The ICCPR

because of the diplomatic and political implications of such an action; States fear retaliatory attacks on their own human rights records. [1.46]

GENERAL COMMENT 31

In General Comment 31, the HRC reminded States Parties of the inter-State obligations in the ICCPR: ¶2.2. While article 2 is couched in terms of the obligations of State Parties towards individuals as the right-holders under the Covenant, every State Party has a legal interest in the performance by every other State Party of its obligations. This follows from the fact that the ‘rules concerning the basic rights of the human person’ are erga omnes obligations and that, as indicated in the fourth preambular paragraph of the Covenant, there is a United Nations Charter obligation to promote universal respect for, and observance of, human rights and fundamental freedoms. Furthermore, the contractual dimension of the treaty involves any State Party to a treaty being obligated to every other State Party to comply with its undertakings under the treaty. In this connection, the Committee reminds States Parties of the desirability of making the declaration contemplated in article 41. It further reminds those States Parties already having made the declaration of the potential value of availing themselves of the procedure under that article. However, the mere fact that a formal interstate mechanism for complaints to the Human Rights Committee exists in respect of States Parties that have made the declaration under article 41 does not mean that this procedure is the only method by which States Parties can assert their interest in the performance of other States Parties. On the contrary, the article 41 procedure should be seen as supplementary to, not diminishing of, States Parties’ interest in each others’ discharge of their obligations. Accordingly, the Committee commends to States Parties the view that violations of Covenant rights by any State Party deserve their attention. To draw attention to possible breaches of Covenant obligations by other States Parties and to call on them to comply with their Covenant obligations should, far from being regarded as an unfriendly act, be considered as a reflection of legitimate community interest. Accordingly, the Committee reminds States Parties that article 2 clearly enjoins them to view violations of the Covenant guarantees by any State Party as deserving their attention. To draw attention to possible breaches of Covenant obligations by other States Parties should not be regarded as an unfriendly act but as a reflection of legitimate community interest. The Committee reminds States Parties of the desirability of making the declaration contemplated in article 41. It also reminds those States Parties already having made the declaration of the potential value of availing themselves of the procedure under that article.

[1.47] In Dumont de Chassart v Italy (1229/03), the author tried to argue that Italy had not done enough to help him regain custody of his children, who lived with their mother to Austria in defiance of Italian court orders. For example, he argued that Italy should bring an article 41 claim against Austria. In its inadmissibility decision, the HRC confirmed that individuals have no rights under article 41. INDIVIDUAL COMMUNICATIONS UNDER THE OPTIONAL PROTOCOL

[1.48] The First Optional Protocol is a separate treaty from the ICCPR. If a State ratifies the Optional Protocol, individuals may submit complaints, or ‘communications’ about alleged violations of their ICCPR rights by that State to the HRC.

Introduction [1.49]

19

GENERAL COMMENT 33

¶4. Article 1 of the Optional Protocol provides that a State party to it recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State party of any of the rights set forth in the Covenant. It follows that States parties are obliged not to hinder access to the Committee and to prevent any retaliatory measures against any person who has addressed a communication to the Committee.76

[1.50] Occasionally, the HRC will join complaints from different authors together as they may arise from the same set of facts.77 Unusually, the HRC joined two complaints by the same author against two different States in Soltes v Czech Republic and Slovakia (1034–5/01). [1.51] All evidence is presented to the HRC in writing. Oral evidence is not permitted.78 In Howard v Canada (879/99), a case concerning indigenous rights [24.34], the following observation was made: ¶4. In his original communication of 9 October 1998, the author, referring to the oral tradition of the Mississauga First Nations, requested the Committee to take into account, in addition to written materials submitted by the parties, oral evidence reproduced in the form of a videotape containing an interview with the author and two other members of the Mississauga First Nations on the importance of fishing for their identity, culture and way of life. On 12 January 2000 the Committee, acting through its Special Rapporteur on New Communications, decided not to accept videotape evidence, with reference to the Optional Protocol’s provision for a written procedure only (article 5, paragraph 1, of the Optional Protocol). By letter dated 7 February 2000, the author furnished the Committee with a transcript of the videotaped testimony in question. The Committee expresses its appreciation for the author’s willingness to assist the Committee by submitting the transcript.

[1.52] The HRC must first consider whether the communication is admissible. The admissibility criteria are set out in articles 1 to 3 and 5 of the Optional Protocol. There are several jurisdictional admissibility criteria. First, there must be an individual victim (personal jurisdiction); ICCPR violations may not be claimed in the abstract.79 Secondly, the communication must relate to a matter within the relevant State’s jurisdiction.80 Thirdly, the communication must relate to an event which occurred after the relevant State ratified the Optional Protocol (temporal jurisdiction).81 Procedural admissibility requirements are found in article 5 of the Optional Protocol: the communication must not be simultaneously before another international tribunal,82 and the complainant (‘the author’) must exhaust domestic remedies before submitting the communication to the HRC.83 The author must 76 See also Hanafi v Algeria (CAT 341/08), where a breach of the right of submission in art 22 of CAT was found when State authorities attempted to dissuade a person from submitting a complaint on behalf of his brother (see para 9.8). 77 See eg Pratt and Morgan v Jamaica (210/86 and 225/87). 78 Oral evidence is permitted under the rules of the CAT Committee: see Abdussamatov et al v Kazakhstan (CAT 444/10), paras 9.1–10.9. 79 On the ‘victim’ requirement, see Ch 3. 80 81 See generally Ch 4. On inadmissibility ratione temporis, see Ch 2. 82 83 See generally Ch 5. See generally Ch 6.

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The ICCPR

also submit sufficient evidence to substantiate the communication before the HRC will proceed. The main substantive hurdle is that the communication must relate to a matter which arises under the ICCPR. This admissibility hurdle is construed from article 2 of the Optional Protocol, which prescribes that victims must have a claim under an enumerated ICCPR right, and article 3, which prohibits the admissibility of ‘incompatible’ communications. For example, communications alleging breach of a right to property84 and a right to asylum85 have been ruled inadmissible ratione materiae, as they failed to raise a claim under any particular provision of the Covenant. [1.53] Another common reason for inadmissibility arises independently of the terms of the OP. The HRC, being an international supervisory body, does not operate as an appellate court to which appeals may be taken from a State’s highest domestic court. That is, it does not operate as a ‘fourth instance court’ [14.63]. This means that the HRC will rarely uphold complaints that have been found to be unsubstantiated by municipal courts, so long as those domestic proceedings addressed the substance of the relevant OP complaint.86 This is because the HRC, being a quasi-judicial body which receives only written evidence, is in a worse position to assess findings, especially findings of fact, than a domestic court. The HRC will ‘overrule’ the findings of a domestic court only when it is apparent that the court has operated in a manifestly arbitrary manner, or has objectively failed to operate under fair procedures. Nevertheless, the HRC has been prepared to overrule local courts in some cases, even in the sensitive and contentious area of family law, as noted below [1.75]. [1.54] An example of the operation of this ‘fourth instance’ doctrine is in Jonassen et al v Norway (942/00). In that case, the authors claimed that the failure by the State to recognize certain indigenous Sami land rights and consequent entitlements breached article 27 [24.42]. Determination of Sami land rights entailed findings of fact by Norwegian courts regarding the existence, or non-existence, of a strong historical connection between an indigenous group and the land in question. In one of the local court decisions, the ‘Aursunden Case 1997’, the Norwegian Supreme Court relied heavily on the factual findings in an earlier Supreme Court decision of 1897. One of the complaints under the OP concerned the Norwegian court’s failure to protect the authors from discrimination, by basing ‘its establishment of facts on those made by the Supreme Court in 1897, at a time where the general opinion of the Sami was discriminatory’;87 the authors argued that the 1897 decision was tainted by institutional prejudice against indigenous peoples and their culture.88 The HRC, applying its ‘fourth instance court’ doctrine, found the complaint inadmissible in this regard; it was ‘not for the Committee to re-evaluate’ the Supreme Court’s conclusion that the 1897 decision was not biased, and was therefore a reasonable platform upon which to base its conclusions regarding Sami land rights.89 This decision shows the strength of the 85 OJ v Finland (419/90). VMRB v Canada (236/87). 87 See also, eg, [14.65] and [17.24]. At para 3.15. 88 See Jonassen et al v Norway (942/00), paras 2.14–2.17 for evidence of such bias. 89 At para 8.3. 84 86

Introduction

21

HRC’s ‘fourth instance’ doctrine. The HRC refused to look behind the Supreme Court’s decision that an earlier 1897 decision was discriminatory against Samis, despite the submission of considerable evidence of the disparaging attitudes of the Finnish governmental organs to the Sami during the late nineteenth century. [1.55] There are no strict time limits for submission of a complaint under the Optional Protocol. [1.56]

GOBIN v MAURITIUS (787/97)

¶6.3. The State party claims that because of the delay in submission of the communication the Committee should consider it as inadmissible as an abuse of the right of submission under article 3 of the Optional Protocol. The Committee notes that there are no fixed time limits for submission of communications under the Optional Protocol and that mere delay in submission does not of itself involve abuse of the rights of communication. However, in certain circumstances, the Committee expects a reasonable explanation justifying a delay. In the present case, the alleged violation took place at periodic elections held five years before the communication was submitted on behalf of the alleged victim to the Committee with no convincing explanation in justification of this delay. In the absence of such explanation the Committee is of the opinion that submitting the communication after such a time lapse should be regarded as an abuse of the right of submission, which renders the communication inadmissible under article 3 of the Optional Protocol.

[1.57] Though Gobin was controversial when it was first adopted,90 it has now been followed in a number of cases, including SL v Czech Republic (1850/08), Jahelka v Czech Republic (1583/07), Kudrna v Czech Republic (1582/07), Brown v Namibia (1591/07), and Fillacier v France (1434/05). This potential ground of admissibility has now been formalized in rule 96(5), which expressly permits the HRC to rule a complaint inadmissible as an abuse of process if it is submitted more than five years after the exhaustion of the final domestic remedy by the relevant author, or more than three years after conclusion of consideration of the matter by another procedure of international settlement. It is not clear that the new rule will make much difference to the HRC’s practice in this regard, apart from providing a more formal basis for such decisions. [1.58] The second stage of the individual communications procedure is for the HRC to consider the merits of the complaint. Ultimately, the HRC issues its ‘views’ on the merits under article 5(4) of the Optional Protocol, in which it pronounces on whether violations of the ICCPR had eventuated. [1.59] Until 1997, Optional Protocol communications were considered in two stages: admissibility followed, if necessary, by merits consideration. In mid-1997, the HRC adopted new rules of procedure to streamline the Optional Protocol process. This was a response to the escalation in the number of submitted communications caused by a rapid growth in Optional Protocol ratifications and increasing public awareness of the procedure.91 Rule 97(2) now dictates that the HRC will 90 91

Six HRC members dissented in Gobin. Annual Report of the Human Rights Committee (1998), A/53/40, i, 61.

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The ICCPR

consider issues of merits and admissibility together, unless it decides on a split consideration. The rules regarding admissibility however remain the same.92 If the case is blatantly inadmissible, such as when the communication is inadmissible ratione temporis, it is dismissed. Otherwise, States are generally given six months to respond to the allegations of violation.93 [1.60]

GENERAL COMMENT 33

HRC views are not legally binding, as the HRC is not a judicial body. ¶11. While the function of the Human Rights Committee in considering individual communications is not, as such, that of a judicial body, the views issued by the Committee under the Optional Protocol exhibit some important characteristics of a judicial decision. They are arrived at in a judicial spirit, including the impartiality and independence of Committee members, the considered interpretation of the language of the Covenant, and the determinative character of the decisions. . . . ¶13. The views of the Committee under the Optional Protocol represent an authoritative determination by the organ established under the Covenant itself charged with the interpretation of that instrument. These views derive their character, and the importance which attaches to them, from the integral role of the Committee under both the Covenant and the Optional Protocol. . . . ¶15. The character of the views of the Committee is further determined by the obligation of States parties to act in good faith, both in their participation in the procedures under the Optional Protocol and in relation to the Covenant itself. A duty to cooperate with the Committee arises from an application of the principle of good faith to the observance of all treaty obligations.

[1.61] The HRC is the pre-eminent interpreter of the ICCPR which is itself legally binding. The HRC’s decisions are therefore strong indicators of legal obligations, so rejection of those decisions is good evidence of a State’s bad faith attitude towards its ICCPR obligations.94 Indeed, HRC decisions are issued ‘in a judicial spirit’.95 Merits decisions resemble definitive findings of breach, or non-breach, by the State concerned. The HRC will also recommend an appropriate remedy, such as the amendment of impugned legislation,96 the payment of damages,97 the 92 If consideration of admissibility and merits is split, it is possible for the HRC to reverse a decision that a case is admissible upon the receipt of new information from the State: Rules of Procedure, rule 99(4). See eg Pingault-Parkinson v France (1768/08). 93 See Rules of Procedure of the Human Rights Committee, rule 97(3). 94 S Joseph, ‘Toonen v Australia: Gay Rights under the ICCPR’ (1994) 13 University of Tasmania Law Review 392, 401; see also JS Davidson, ‘The Procedure and Practice of the Human Rights Committee under the First Optional Protocol to the International Covenant on Civil and Political Rights’ (1991) 4 Canterbury Law Review 337 at 353; and Heffernan, ‘A Comparative View of Individual Petition Procedures’, 102–3. 95 Selected Decisions of the Human Rights Committee under the Optional Protocol, CCPR/C/OP/2 (1988), 1. 96 See eg Toonen v Australia (488/92). 97 See eg A v Australia (560/93). In separate opinions in McLeod v Jamaica (734/97) and McTaggart v Jamaica (749/97), Mr Scheinin has lamented the HRC’s failure to prescribe more specific remedies, such as specified amounts of compensation.

Introduction

23

making of representations to a State Party to which an author has been deported in violation of the Covenant,98 and/or the release of persons unfairly detained.99 Furthermore, the HRC has instituted a ‘follow-up’ procedure that publicizes the ultimate fate of its Optional Protocol recommendations.100 Hence, a State’s failure to implement HRC views is on public record, which can potentially prompt censure and criticism. The familiar international legal sanction of bad publicity is therefore available when States are found in breach under the Optional Protocol, and when they fail to redress those breaches. Fear of public condemnation arising from international scrutiny can often provide sufficient incentive to States to improve their human rights record.101 HRC decisions have directly caused States to alter their laws and/or practices so as to conform to the ICCPR.102 Nevertheless, there is an unsatisfactory rate of non-compliance with Optional Protocol decisions. This phenomenon is discussed below [1.141]. [1.62]

GENERAL COMMENT 33

The HRC has commented on the occasional non-cooperation of States during the Optional Protocol process in General Comment 33. ¶10. In the experience of the Committee, States do not always respect their obligation. In failing to respond to a communication, or responding incompletely, a State which is the object of a communication puts itself at a disadvantage, because the Committee is then compelled to consider the communication in the absence of full information relating to the communication. In such circumstances, the Committee may conclude that the allegations contained in the communication are true, if they appear from all the circumstances to be substantiated.

Therefore, the HRC will often accept detailed allegations as fact if they are not specifically denied or justified by the State party.103 [1.63] The HRC has rebuked Australia for its failure to comply with its Optional Protocol views:104 . . . [T]he Committee expresses once again its concern at the State party’s restrictive interpretation of, and failure to fulfil its obligations under the Optional Protocol and the Covenant, Ng v Canada (469/91), para 18; Weiss v Austria (1086/02), para 11.1. In numerous Jamaican death penalty cases, the HRC has found violations of art 14 entailed in the relevant trial procedures. Its recommendations in such cases that the victims be released have been controversial, as the State Party fears releasing potentially dangerous criminals. 100 See eg ‘Follow-Up Activities under the Optional Protocol’, in Annual Report of the Human Rights Committee (1998), A/53/40, i, 70–7; General Comment 33, paras 16–18. See also Concluding Observations on Zambia (2007) UN doc CCPR/C/ZMB/CO/3, para 11. 101 R Higgins, ‘Some Thoughts on the Implementation of Human Rights’ (1990) Interights Bulletin, vol 5, 52. 102 For example, the decision in Toonen v Australia (488/92) led to the enactment of federal legislation which provided a remedy, and, ultimately, the repeal of the impugned Tasmanian law; see also C Cohn, ‘The Early Harvest: Domestic Legal Changes Related to the Human Rights Committee and the Covenant on Civil and Political Rights’ (1991) 13 Human Rights Quarterly 295. 103 See eg of many examples, Butovenko v Ukraine (1412/05). 104 Concluding Observations (2009) UN doc CCPR/C/AUS/CO/5, para 10. 98 99

The ICCPR

24

and at the fact that victims have not received reparation. The Committee further recalls that, by acceding to the Optional Protocol the State party has recognized its competence to receive and examine complaints from individuals under the State party’s jurisdiction, and that a failure to give effect to its Views would call into question the State party’s commitment to the Optional Protocol (art. 2).

Requests for interim measures [1.64]

GENERAL COMMENT 33

¶19. Measures may be requested by an author, or decided by the Committee on its own initiative, when an action taken or threatened by the State party would appear likely to cause irreparable harm to the author or the victim unless withdrawn or suspended pending full consideration of the communication by the Committee. Examples include the imposition of the death penalty and violation of the duty of non-refoulement. In order to be in a position to meet these needs under the Optional Protocol, the Committee established, under its rules of procedure, a procedure to request interim or provisional measures of protection in appropriate cases. Failure to implement such interim or provisional measures is incompatible with the obligation to respect in good faith the procedure of individual communication established under the Optional Protocol.

[1.65] The HRC has established a practice of issuing a request for the taking by a State of interim measures to preserve the status quo in certain Optional Protocol cases. Such requests are issued under rule 92 (formerly rule 86) of the Committee’s Rules of Procedure where the performance by the State of certain actions would cause irreparable damage to the Optional Protocol author.105 For example, rule 92 requests are issued in cases where an author has alleged that a death sentence has been improperly imposed; the State Party is naturally requested to refrain from executing an author while the Optional Protocol communication is being considered. The other situation where rule 92 requests are commonly issued is in the context of requesting that a State refrain from carrying out a deportation when the conformity of that deportation with the Covenant is at issue in a communication. More unusual situations in which such requests have arisen have been to request a cessation to a logging in an area of cultural importance to indigenous peoples,106 protection for a detainee’s life, health and safety,107 protection for an author and his family from harassment,108 and for a State to take all measures within its power to ensure that a person was not executed in another State while his complaint was being considered.109 The latter four examples demonstrate that requests for interim measures can include both requests that a State refrain from certain conduct (eg refrain from executing a person) and that it also perform certain actions (eg take steps to protect a person). 105 See generally on interim measures, J Harrington, ‘Punting Terrorists, Assassins, and Other Undesirables: Canada, the Human Rights Committee, and Requests for Interim Measures of Protections’ (2003) 48 McGill Law Journal 2. 106 Jouni Länsman et al v Finland (671/95); Länsman et al v Finland (1023/01). 107 Umarov v Russian Federation (1449/06). 108 Gunaratna v Sri Lanka (1432/05). See also VK v Bulgaria (CEDAW 20/08), paras 5.1–5.4. 109 Munaf v Romania (1539/06) [4.34].

Introduction

25

[1.66] Normally a State complies with the rule 92 request though such compliance has not been absolute. PIANDIONG v PHILIPPINES (869/99) The Philippines executed the three authors just over a fortnight after having received the HRC’s request to refrain from such executions. The HRC issued a vigorous condemnation of the Philippine government’s actions:110 ¶5.1. By adhering to the Optional Protocol, a State party to the Covenant recognizes the competence of the Human Rights Committee to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant (Preamble and Article 1). Implicit in a State’s adherence to the Protocol is an undertaking to cooperate with the Committee in good faith so as to permit and enable it to consider such communications, and after examination to forward its views to the State party and to the individual (Article 5 (1), (4)). It is incompatible with these obligations for a State party to take any action that would prevent or frustrate the Committee in its consideration and examination of the communication, and in the expression of its Views. ¶5.2. Quite apart, then, from any violation of the Covenant charged to a State party in a communication, a State party commits grave breaches of its obligations under the Optional Protocol if it acts to prevent or frustrate consideration by the Committee of a communication alleging a violation of the Covenant, or to render examination by the Committee moot and the expression of its Views nugatory and futile. In respect of the present communication, the authors allege that the alleged victims were denied rights under Articles 6 and 14 of the Covenant. Having been notified of the communication, the State party breaches its obligations under the Protocol, if it proceeds to execute the alleged victims before the Committee concludes its consideration and examination, and the formulation and communication of its Views. It is particularly inexcusable for the State to do so after the Committee has acted under its rule 86 to request that the State party refrain from doing so. . . . ¶5.4. Interim measures pursuant to rule 86 of the Committee’s rules adopted in conformity with article 39 of the Covenant, are essential to the Committee’s role under the Protocol. Flouting of the Rule, especially by irreversible measures such as the execution of the alleged victim or his/her deportation from the country, undermines the protection of Covenant rights through the Optional Protocol.

Hence, a failure to comply with requests for interim measures is deemed to be a grave breach of the Optional Protocol.111 Piandiong has now been followed in numerous cases such as Nazriev v Uzbekistan (1044/02), Weiss v Austria (1086/02), Tolipkhuzhaev v Uzbekistan (1280/04), Uteev v Uzbekistan (1150/03), and Saidov v Tajikistan (964/01).112

See also Mansaraj et al v Sierra Leone (839–841/98). The CAT Committee has found similar violations with regard to State failures to comply with its requests for interim measures: see eg Pelit v Azerbaijan (CAT 281/05), Tebourski v France (CAT 300/06), Brada v France (CAT 195/02), Sogi v Canada (CAT 297/06), and Dar v Norway (CAT 249/04). 112 See also Concluding Observations on Uzbekistan (2005) UN doc CCPR/CO/83/UZB, para 6; Canada (2006) UN doc CCPR/C/CAN/CO/5, para 7. 110 111

The ICCPR

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ALZERY V SWEDEN (1416/05)

[1.67]

This case involved a notorious instance of extraordinary rendition [9.104]. The HRC extended its Piandiong reasoning. While the author was not expelled after the issuance of a request for interim measures, he was expelled quickly and deliberately before he had a chance to utilize international remedies such as that under the Optional Protocol to attempt to forestall his deportation: ¶11.11. . . . In the present case, the Committee notes that the author’s (then) counsel had expressly advised the State party in advance of the Government’s decision of his intention to pursue international remedies in the event of an adverse decision [ . . . ] Counsel was incorrectly advised after the decision had been taken that none had been reached, and the State party executed the expulsion in the full knowledge that advice of its decision would reach counsel after the event. In the Committee’s view, these circumstances disclose a manifest breach by the State party, of its obligations under article 1 of the Optional Protocol.

Interpretation and Development of ICCPR Norms [1.68] This book is concerned with the jurisprudence of the HRC, with some limited references to the other UN treaty bodies. As the excerption and analysis of that jurisprudence are arranged in separate chapters according to the relevant substantive right, it is necessary in this introductory chapter to comment on some broad unifying themes within that jurisprudence. GENERAL OVERVIEW

[1.69] The essential sources of HRC jurisprudence are its decisions under the Optional Protocol, its General Comments, and its Concluding Observations. Its Optional Protocol decisions apply the ICCPR in concrete situations, so they deliver the most specific interpretations of the Covenant. As is noted below, the broad brush approach of Concluding and General Comments has its advantages when dealing with systemic violations of ICCPR rights [1.116]. [1.70] By October 2012, the HRC had completed its consideration of approximately 2,000 communications. It must be noted, however, that a disproportionate number of communications have concerned a handful of States and a narrow range of subject matters. From 1976 to about 1985, most communications concerned gross abuses of human rights, including allegations of torture, disappearance, and extended arbitrary detention, by the military government in Uruguay. From the mid-1980s to the early 2000s, a very large number of cases have been submitted by death row prisoners in the Caribbean, particularly Jamaica. These cases have generally concerned the fairness of trials resulting in capital sentences, though a number of these cases have also addressed the length of detention and conditions on death row. This unevenness in ‘complaint rate’ has caused the HRC’s Optional Protocol jurisprudence to be disproportionately concerned with matters pertaining to articles 7, 9, 10, and 14. In contrast, there is relatively little jurisprudence on

Introduction

27

certain rights, such as those rights enunciated in articles 21 and 22, though that jurisprudence is now growing. [1.71] Despite the disproportionate number of communications of an essentially similar nature, the Optional Protocol has nevertheless yielded a large body of jurisprudence touching on important aspects of most ICCPR rights. The HRC has dealt with a large number of complicated issues, which have necessitated genuine findings of law rather than mere establishment of facts. For example, Optional Protocol decisions have addressed the ICCPR compatibility of laws, administrative decisions, or practices of the following type: a law that prohibited Holocaust denial [18.90], the deportation or extradition of persons in various contexts,113 passport controls on persons who have failed to perform compulsory military service [12.25], detention for reasons of military discipline [11.89], detention of unauthorized arrivals seeking asylum,114 prohibitions on gay sex [16.50], amnesty laws [9.185], extended detention on death row [9.81], language requirements designed to promote a certain linguistic culture [18.39], commercial ventures into indigenous lands,115 restrictions on media access to report parliamentary proceedings [18.61], prohibitions on same-sex marriage [20.42], special terrorist courts [23.124], legislative settlement of outstanding indigenous claims [24.20], mandatory death sentences [8.57], the extent to which ICCPR and OP obligations are deemed to extend to dependent territories [4.06], abortion,116 freedom of information,117 incursions into lawyer/client privileges [16.37], preventive detention [11.35], conscientious objection,118 and the implementation by States of obligations under UN Security Council Resolutions.119 [1.72] Some of the most rigorous Optional Protocol decisions have concerned article 26, the free-standing guarantee of non-discrimination.120 In landmark decisions in 1987, Broeks v Netherlands (172/84) [23.14] and Zwaan-deVries v Netherlands (182/84), the HRC found that article 26 guaranteed non-discrimination in relation to all rights, including economic, social, and cultural rights. In numerous subsequent communications, the HRC has had to consider the compatibility of numerous allegedly discriminatory measures in national social welfare policies. The decisions were particularly significant, given that the corresponding non-discrimination guarantee in the European Convention, article 14, only prohibited discrimination in relation to other Convention rights [23.17].121 [1.73] The HRC can be criticized for occasional inconsistency in its methodology. For example, in Nicholas v Australia (1080/02), the claims concerned article 15

113

114 See, eg, [9.98]–[9.126], and generally, Ch 13. See, eg, [11.24]–[11.27]. 116 See [24.27]ff. See [8.90]ff. 117 118 See [18.22]ff. See [17.41]ff. 119 See [1.87] and [4.28]. 120 Harris, ‘The International Covenant on Civil and Political Rights’, 17; see generally Ch 23. 121 A free-standing right within the European Convention system is now found in art 1 of Protocol 12 to the Convention. 115

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The ICCPR

[15.05]. In finding no violation of that provision, the HRC suggested that article 14 matters may have been at issue, but that it could not consider those matters as they had not been raised by the parties.122 Yet a violation of article 14(3)(c) was found in Kankanamge v Sri Lanka (909/00) without it being invoked by the author. [1.74] Another methodological inconsistency arises with regard to the treatment by the HRC of laws which are, on their face, in breach of the ICCPR. Sometimes the HRC will find that the law breaches the ICCPR, as in Yevdokimov and Rezanov v Russian Federation (1410/05) (concerning a blanket ban on prisoners voting) [22.27] and Young v Australia (941/00) (concerning the denial of certain social security benefits on the grounds of sexuality) [23.54].123 However, sometimes the HRC will find that no violation has arisen because the application of the law in the particular instance before them is permissible under the Covenant, as in Faurisson v France (550/93) concerning Holocaust denial [18.90], and Aster v Czech Republic (1575/07), concerning the application of restitution legislation which discriminated on the basis of nationality. Indeed, a minority in Yevdokimov (Messrs Thelin and O’Flaherty) found no violation as the application of the law to the authors, who had been convicted of serious organized crime, was not unreasonable in their view [22.28].124 [1.75] Finally, regarding methodology, it does seem that the HRC varies in the level of deference it pays to local court findings under its ‘fourth instance’ court doctrine [1.54]. While it has been traditionally deferential, for example in the area of family law [20.62], in cases such as Hendriks v Netherlands (201/85), it may nevertheless ‘overrule’ such decisions as seen in NT v Canada (1052/02) [20.39]. A case in which the HRC’s lack of deference was controversial was Haraldsson and Sveinsoon v Iceland (1306/04) concerning the regulation of Iceland’s fishing industry [23.71]. While the majority found a violation, the minority of Sir Nigel Rodley, Mr Iwosawa, and Mrs Wedgwood did not, and felt that the HRC should have deferred to Iceland’s authorities over a matter of great economic and environmental importance.125 [1.76] Optional Protocol jurisprudence is of course supplemented by the General Comments and the Concluding Observations, which have addressed numerous issues outside the scope of submitted communications. Finally, important additional matters have been addressed by the other UN treaty bodies, such as matters concerning torture before the CAT Committee. [1.77] It is generally recognized that human rights texts should be interpreted liberally, so corresponding limitations are to be construed narrowly.126 Nevertheless, 122

At para 7.4. In this case, Australia had argued that the author was not eligible for the benefit anyway, regardless of his sexuality. 124 See also majority and minority in Correia de Matos v Portugal (1123/02). 125 See also, for differences in opinion brought about by differing levels of deference between majority and minority, Jazairi v Canada (958/00). 126 ‘Siracusa Principles on Limitations and Derogations to the ICCPR’ (1985) 7 Human Rights Quarterly 3, 4; Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, XXVII. See also majority opinion in Alberta Unions Case (118/82), para 5. 123

Introduction

29

it is difficult to identify any consistent trend of liberalism, radicalism, or conservatism in the HRC’s interpretations compared to other human rights bodies. For example, the HRC’s extension in 1988 of article 26 into the realm of economic, social, and cultural rights was perceived as radical.127 However, it has arguably been quite conservative in its subsequent consideration of communications about discrimination in the allocation of social and economic rights. The HRC has displayed a more conservative response to ‘the death row phenomenon’ than the European Court of Human Rights in Soering v UK.128 However, the HRC has been more radical than the European bodies in its rejection of the cautious doctrine of the margin of appreciation.129 The absence of a consistent HRC interpretative ‘philosophy’ may be due to the fact that new personnel join the HRC every two years.130 THE ROLE OF PRECEDENT

[1.78] The HRC is not expressly bound by any doctrine of precedent. In Thomas v Jamaica (532/1993), Messrs Pocar and Lallah stated: any . . . views of the Committee based on legal grounds . . . can be reversed or modified at any time, in the light of further arguments raised by Committee members during the consideration of another case.

In Thompson v Saint Vincent and the Grenadines (806/98), Messrs Kretzmer, Amor, Yalden, and Zakhia stated: The Committee is not bound by its previous jurisprudence. It is free to depart from such jurisprudence and should do so if it is convinced that its approach in the past was mistaken. It seems to me, however, that if the Committee wishes States parties to take its jurisprudence seriously and to be guided by it in implementing the Covenant, when it changes course it owes the States parties and all other interested persons an explanation of why it chose to do so. . . .

[1.79] The HRC has expressly followed its own decisions on numerous occasions.131 The HRC has sporadically expressed inconsistent opinions. For example, the case of Foin v France (666/95) [23.58] appears to overrule the previous decision in Järvinen v Finland (295/88) [23.57]. Judge v Canada (829/98) [8.69] explicitly overrules Kindler v Canada (470/91) [8.67]. Nystrom v Australia (1557/07) [12.40] 127 See T Opsahl, ‘Equality in Human Rights Law with Particular Reference to Article 26 of the International Covenant of Civil and Political Rights’, in M Nowak, D Steurer, and H Tretter (eds), Festschrift für Felix Ermacora (Engel, 1988), 52, describing the adverse Dutch reaction to the findings in Broeks and Zwaan-de-Vries; see also Harris, ‘The International Covenant on Civil and Political Rights’, 18, note 92. 128 See Soering v UK, No 161 (1989) 11 EHRR 439. See eg Johnson v Jamaica (588/94), rejecting the Soering reasoning [9.81]. 129 See [18.68]–[18.69], [24.29]–[24.30]. 130 Most sitting members are usually re-elected. However, there are always a few vacancies caused by retirements, deaths, or the occasional failure to be renominated or re-elected. 131 For example, the reasoning regarding the death row phenomenon in Johnson v Jamaica (588/94) has been followed in numerous majority decisions, such as Hylton v Jamaica (600/1994), Lewis v Jamaica (527/1993), and Spence v Jamaica (59/1994) [9.81].

The ICCPR

30

and Warsame v Canada (1959/10) [12.41] clearly depart from Stewart v Canada (538/93) on the interpretation of article 12(4) [12.39]. Yoon and Choi v Republic of Korea (1321–2/04) departs from LTK v Finland (184/84) on the issue of conscientious objection [17.43]. Concluding Observations have indicated that the ICCPR may indeed protect the right to strike, contrary to its early decision in JB v Canada (118/82) [19.24]. The HRC’s divergences from its own jurisprudence, though infrequent, are a sign that the ICCPR is a living instrument capable of dynamic development. [1.80] Certainly, the HRC’s jurisprudence normally develops in favour of a more expansive interpretation of a human right. That is, its decisions are more likely to become more liberal than more conservative. KODIROV v UZBEKISTAN (1284/04) The HRC arguably took a more conservative approach than in its previous case law by refusing to examine a claim over the death penalty as the relevant death sentence had been commuted. In dissenting on this point, Mrs Chanet, Ms Majodina, and Mr Salvioli argued that the refusal to consider the article 6 claim was ‘a step backwards’ from previous cases.132 They then stated: ¶6. In the interpretation of human rights law, and in the name of progress, an international body may amend a view it previously held and replace it with an interpretation that provides greater protection for the rights contained in an international instrument: this constitutes appropriate and necessary development of international human rights law. ¶7. The reverse procedure is not acceptable, however: it is not appropriate to interpret human rights provisions more restrictively than before. The victim of a violation of the Covenant deserves at least the same approach to protection as that provided in cases considered previously by the same body.

[1.81] The HRC has rarely taken the opportunity to refer to and follow the decisions of its fellow UN treaty bodies. Nor has it often referred to regional human rights bodies, which have produced an extensive amount of relevant jurisprudence. The relationship between the ICCPR and other human rights treaties is discussed below [1.96]. LIMITATIONS TO ICCPR RIGHTS

[1.82] Some ICCPR rights are absolute. Examples of these absolute rights are article 7, which prohibits torture, inhuman and degrading treatment, or punishment; and article 8(1), which prohibits slavery. A State cannot impose any limits on an absolute right, unless it has entered a valid derogation under article 4133 or has entered a valid reservation.134 132

At para 5. The HRC’s case law on this point has not been consistent [8.54]. However, most absolute rights are non-derogable. Article 10(1) is a derogable right, despite being drafted in absolute language. 134 See Ch 26 on a State Party’s rights of reservation. 133

Introduction

31

[1.83] Where limitations are permitted to ICCPR rights, they must be prescribed by national law.135 This means that the circumstances in which the limitation will be imposed are clearly delineated in an accessible law, whether that be statute law or common law.136 The law should not be so vague as to permit too much discretion and unpredictability in its implementation.137 [1.84] Some ICCPR rights (ie articles 12(1) and (2), 13, part of 14(1), 18(1), 19(2), 21, and 22) contain express limitation clauses, which list permissible limitations, such as public order, national security, and protection of the rights of others.138 Most enumerated limitations must be ‘necessary in a democratic society’, which imports a notion of proportionality in determining the permissibility of a particular limitation.139 Other ICCPR rights (ie articles 6(1), 9(1), 12(4), and 17) permit ‘non-arbitrary’ limits. The notion of ‘arbitrariness’ also incorporates proportionality into the determination of the extent of such limits.140 Article 25 rights, which may expressly be limited by ‘reasonable’ measures,141 and article 26 rights of non-discrimination, which may be limited, according to HRC jurisprudence,142 by ‘reasonable and objective’ measures, are similarly limited by the notion of proportionality. It is unlikely that a limitation provision will be deemed non-arbitrary, reasonable, and/or proportionate unless it is designed to meet one of the legitimate ends identified in the express limitation clauses. Therefore, despite the differently worded permissible limitations, most ICCPR rights may be limited by proportionate laws designed to protect a countervailing community benefit, such as public order, or to protect the conflicting right of another person.143 [1.85]

GENERAL COMMENT 31

The HRC itself has affirmed the centrality of the notion of proportionality in determining the legitimacy of limitations to ICCPR rights. ¶6. . . . [A]ny restrictions on any of those rights must be permissible under the relevant provisions of the Covenant. Where such restrictions are made, States must demonstrate their 135

This requirement is expressed in different ways throughout the different ICCPR guarantees. See Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 224. See also Sunday Times v UK (1979–80) 2 EHRR 245, para 49, confirming that judge-made laws may constitute sufficiently prescribed ‘laws’ for the purposes of limitation to rights under the European Convention. 137 See eg Pinkney v Canada (27/78) [16.08]. See also General Comment 27, para 13 [12.28]. 138 These limitations have not been interpreted in the context of every relevant right. However, it seems that the terms would be interpreted in a similar manner in all contexts. 139 Pietraroia v Uruguay (44/79), para 16, and separate opinion of Evatt, Kretzmer, and Klein in Faurisson v France (550/93), para 8 of their separate opinion [18.91]. 140 Toonen v Australia (488/92), para 8.3 [16.10]. 141 Gillot v France (932/00), para 13.2, confirming the relevance of proportionality to determination of limitations to art 25 rights [7.07] 142 See [23.48]ff. 143 P Hassan, ‘International Covenant on Civil and Political Rights: Background Perspectives on Article 9(1)’ (1973) 3 Denver Journal of International Law and Policy 153, detailing the drafting history of the inclusion of the word ‘arbitrary’ in art 9(1), in place of an enumerated list of limitations to one’s right to liberty. Hassan concludes that the prohibition of ‘arbitrary’ restrictions on liberty ‘could provide better safeguards against governmental oppression of its peoples than any article with a detailed list of limitations’ (at 183). 136

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The ICCPR

necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights. In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right.

[1.86] The dividing line between an ICCPR right and its limitations is by no means clear, especially at the ‘edges’ of a right. The edges of a right may be characterized as the area between blatant conformity with the right and blatant non-conformity.144 The human rights compatibility of a law impacting on the periphery of a human right is generally worked out on a case-by-case basis, unless there exists a highly relevant precedent. This uncertainty confirms that the abstract ICCPR rights have not been totally concretized. The process of concretization occurs over time through the growth of HRC jurisprudence, and is facilitated by municipal decisions on ICCPR rights and academic writings.

THE ICCPR AMID INTERNATIONAL LAW

[1.87]

SAYADI and VINCK V BELGIUM (1472/06)

The authors in this case were members of a non-government organization, FSI, which was allegedly the European arm of the Global Relief Fund (GRF). The GRF was ‘listed’ in October 2002 on the UN Security Council’s list of organizations and persons associated with terrorism. Under Security Council resolutions, States had a duty to impose certain sanctions on entities or persons on the list, including travel restrictions and freezes on assets. In November 2002, Belgium transmitted the names of the authors to the Security Council, stating that they were key members of FSI: they were duly placed on the list by the Sanctions Committee of the Security Council. As a consequence, Belgium came under an obligation, under Security Council resolutions, to freeze their bank accounts and impose travel limitations upon them. The authors initiated actions against the government over its transmittal of their names. In February 2005, the Brussels Court found in the authors’ favour. The government duly lobbied for the removal of their names from the Security Council list, without success. Domestic criminal investigations against them regarding alleged terrorist links also ceased due to a lack of evidence. The authors claimed that the restrictions on their movement and assets, and harm to their reputation, breached their rights under Articles 12 [12.23] and 17 [16.46]. Belgium issued the following defence of its actions: ¶4.6. . . . [T]he State party contends, firstly, that, in accordance with the Security Council resolutions, it was obliged to furnish information on the authors. The State party notes that the Sanctions Committee has confirmed that when a charitable organization is listed, the main persons connected to such bodies must also be listed. . . .

144 See M Delmas-Marty, ‘The Richness of Underlying Legal Reasoning’, in M Delmas-Marty (ed), The European Convention for the Protection of Human Rights (Martinus Nijhoff, 1992), 332.

Introduction

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¶6.1 On 17 January 2007, the State party submitted that the authors are not entitled to challenge United Nations regulations on the fight against terrorism before the Committee. Article 1 of the Optional Protocol precludes the authors from disputing measures taken by the State party to implement its Charter obligations. In the circumstances, the authors are not subject to the jurisdiction of the State party and the Committee is not entitled to consider their complaints. The authors do not dispute that the action of a State falls beyond the State’s jurisdiction if it is dictated by an international obligation. The authors’ argument wrongly implies that the Committee can pass judgement on the validity of Security Council resolutions. It also suggests that States Members of the United Nations are in a position to scrutinize the legitimacy of Security Council resolutions in terms of the Charter and to consider them alongside provisions of the Covenant. Even if Member States did have such discretion, at most it would imply marginal oversight restricted to manifest abuses by the Security Council. The Security Council emphasized only recently ‘the obligations placed upon all Member States to implement, in full, the mandatory measures adopted by the Security Council’. In this case, the authors have not identified any manifest violation of the Charter. Regarding the alleged action ultra vires on the part of the Security Council, the Security Council did not act ultra vires and it is well established that terrorism constitutes a threat to international peace and security.

The HRC majority found that the communication was admissible: ¶7.2 While the Committee could not consider alleged violations of other instruments such as the Charter of the United Nations, or allegations that challenged United Nations rules concerning the fight against terrorism, the Committee was competent to admit a communication alleging that a State party had violated rights set forth in the Covenant, regardless of the source of the obligations implemented by the State party. The Committee concluded that the provisions of article 1 of the Optional Protocol did not preclude the consideration of the communication.

[1.88] Sir Nigel Rodley, Mr Shearer, and Ms Antoanella Motoc disagreed and ruled that the complaint was inadmissible: Although it failed to make the argument explicitly, it is evident that the State party has done what it could to secure the authors’ de-listing. In so doing it has provided the only remedy within its power. Accordingly, unless the Committee believes that the State party’s mere compliance with the Security Council listing procedure (in the absence of bad faith by the State party or of manifest abuse or overstepping of the Security Council’s powers) is capable of itself of violating the Covenant, it is not clear how the authors can still be considered victims, under article 1 of the Optional Protocol, of violations of the State party’s obligations under the Covenant.

Mrs Wedgwood also dissented on admissibility: . . . The authors are complaining about the actions and decisions of the United Nations Security Council, not the acts of Belgium. Security Council resolutions have established administrative measures to prevent the financing and facilitation of international terrorism. . . . . . . As the Committee acknowledges, it has no appellate jurisdiction to review decisions of the Security Council. Neither can it penalize a State for complying with those decisions. It would be inconsistent with the constitutional structure of the United Nations Charter, and its own responsibilities under the Covenant.

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The ICCPR

Under Article 103 of the UN Charter, which binds all UN members and all parties to the ICCPR, Charter obligations prevail over other international law obligations. One of those obligations is in article 25, the obligation to comply with Security Council decisions. The minority felt that Belgium’s hands were essentially tied by the Security Council resolutions, so the complaint against it could not be admissible. [1.89] The majority proceeded to discuss the merits of the case: ¶10.3 Although the parties have not invoked article 46 of the Covenant, in view of the particular circumstances of the case the Committee decided to consider the relevance of article 46. The Committee recalls that article 46 states that nothing in the Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations. However, it considers that there is nothing in this case that involves interpreting a provision of the Covenant as impairing the provisions of the Charter of the United Nations. The case concerns the compatibility with the Covenant of national measures taken by the State party in implementation of a Security Council resolution. Consequently, the Committee finds that article 46 is not relevant in this case. ¶10.4 The facts set before the Committee indicate that the State party froze the assets of the authors after their names were placed on the Consolidated List of the United Nations Sanctions Committee, which was subsequently appended to a European Community regulation and a ministerial order issued in the State party. The placement of the authors’ names on the sanctions list prevents them from travelling freely. The authors allege violations of their right to an effective remedy, their right to travel freely, their right not to be subject to unlawful attacks on their honour and reputation, the principle of legality of penalties, respect for the presumption of innocence and their right to proceedings that afford procedural and structural guarantees. . . . ¶10.6 In the present case, the Committee recalls that the travel ban for persons on the sanctions list, particularly the authors, is provided by Security Council resolutions to which the State party considers itself bound under the Charter of the United Nations. Nevertheless, the Committee considers that, whatever the argument, it is competent to consider the compatibility with the Covenant of the national measures taken to implement a resolution of the United Nations Security Council. It is the duty of the Committee, as guarantor of the rights protected by the Covenant, to consider to what extent the obligations imposed on the State party by the Security Council resolutions may justify the infringement of the right to liberty of movement, which is protected by article 12 of the Covenant. ¶10.7 The Committee notes that the obligation to comply with the Security Council decisions adopted under Chapter VII of the Charter may constitute a ‘restriction’ covered by article 12, paragraph 3, which is necessary to protect national security or public order. It recalls, however, that the travel ban results from the fact that the State party first transmitted the authors’ names to the Sanctions Committee. The proposal for the listing, made by the State party on 19 November 2002, came only a few weeks after the opening of the investigation on 3 September 2002. According to the authors, this listing appears to have been premature and unjustified. On this point, the Committee notes the State party’s argument that the authors’ association is the European branch of the Global Relief Foundation, which was placed on the sanctions list on 22 October 2002, and the listing mentions the links of the Foundation with its European branches, including the authors’ association. The State party has furthermore argued that, when a charitable organization is

Introduction

35

mentioned in the list, the main persons connected with that body must also be listed, and this has been confirmed by the Sanctions Committee. The Committee finds that the State party’s arguments are not determinative, particularly in view of the fact that other States have not transmitted the names of other employees of the same charitable organization to the Sanctions Committee. . . . It also notes that the authors’ names were transmitted to the Sanctions Committee even before the authors could be heard. In the present case, the Committee finds that, even though the State party is not competent to remove the authors’ names from the United Nations and European lists, it is responsible for the presence of the authors’ names on those lists and for the resulting travel ban.

[1.90] The HRC went on to find breaches of articles 12 [12.23] and 17 [16.46]. The majority decision manages to sidestep the issue of inconsistency between ICCPR obligations and UN Charter obligations, as it essentially finds that Belgium was not required under Security Council resolutions to transmit the names, and therefore it was responsible under the ICCPR for the consequences which ensued from its errant decision to do so. Also interesting is the majority’s proposed remedy: ¶12. . . . Although the State party is itself not competent to remove the authors’ names from the Sanctions Committee’s list, the Committee is nevertheless of the view that the State party has the duty to do all it can to have their names removed from the list as soon as possible, to provide the authors with some form of compensation and to make public the requests for removal. The State party is also obliged to ensure that similar violations do not occur in the future.

Hence, the majority did not order the State to lift the asset freeze and the travel ban, which would undoubtedly breach Security Council resolutions, as such measures are required for people who are listed, regardless of whether that listing is justified. Therefore, the majority does in fact exhibit deference towards UN Charter obligations in this case. [1.91] Mr Shearer dissented on the merits as he had on admissibility as ‘the State party acted in good faith to discharge its obligations under a superior law’. In contrast Mr Iwosawa concurred on the merits, agreeing with the majority that ‘the State party could have acted otherwise while in compliance with the resolutions of the Security Council of the United Nations’. In a further concurring opinion on the merits, Sir Nigel Rodley discussed the perplexing issue of how to resolve conflicts between UN Security Council resolutions and human rights obligations. He concluded thus: . . . [I]t could be that the Security Council, in its first response to the need to combat the uniquely virulent terrorism of Al-Qaida that culminated in the atrocities of 11 September 2001, might take measures involving derogation from rights susceptible of derogation (freedom of movement; privacy; property too, albeit not a right protected by the Covenant). Certainly, the listing procedure could be and was understood to contain such elements. Necessity and proportionality, however, do not vouchsafe permanent answers. On the contrary, the answers vary according to the conditions being faced. It is not easy to see why nearly a decade after the first resolution 1267 (1999) and seven years after 9/11 the Council could not have evolved procedures more consistent with the human rights values of transparency, accountability and impartial, independent assessment of facts. It may be hoped that it will not too much longer delay adjusting the procedures in line with these values.

The ICCPR

36

This would avoid putting States, including States party to the Covenant or other international human rights treaties, when determining the legislative or executive action to be taken, in the unenviable position of having to engage in difficult exercises in interpretation of or even challenges to the validity of provisions of Security Council resolutions.

[1.92] In Concluding Observations on New Zealand, the HRC stated:145 ¶13 While noting the obligations imposed under Security Council resolution 1373 (2001), the Committee expresses concern at the compatibility of some provisions of the Terrorism Suppression Amendment Act 2007 with the Covenant. It is particularly concerned at the designation procedures of groups or individuals as terrorist entities and at the lack of a provision in the Act to challenge these designations, which are incompatible with article 14 of the Covenant. The Committee is also concerned about the introduction of a new section allowing courts to receive or hear classified security information against groups or individuals designated as terrorist entities in their absence (arts. 2, 14 and 26). The State party should ensure that its counter-terrorism legislation is in full conformity with the Covenant. In particular, it should take steps to ensure that the measures taken to implement Security Council resolution 1267 (1999) as well as the national designation procedures for terrorist groups fully comply with all the legal safeguards enshrined in article 14 of the Covenant.

[1.93]

SECHREMELIS v GREECE (1507/06)

The authors were the descendants of the victims of a massacre by the Nazis in Greece in 1944 during the Second World War. In 1995, they sued Germany over the incident and won in a Greek court. Subsequently, they brought enforcement proceedings against Germany. However, under Greek law, the consent of the Greek Minister of Justice was a prerequisite to enforcement. He did not authorize enforcement and Germany refused to pay. The authors alleged a breach of article 14(1) [14.83] in conjunction with article 2(3) [25.18], given Greece’s failure to authorize its own court’s judgment. Greece defended its actions as being compatible with the international law of State immunity. While the HRC found the case admissible, it found no violation: ¶10.2 At the origin of the present communication is Decision No. 137/1997, by which the Livadia Court of First Instance ordered Germany to pay compensation to the relatives of the victims of the massacre perpetrated by the German occupation forces in Distomo on 10 June 1944. On 4 May 2000, the Court of Cassation rejected an application for judicial review and, therefore, the Decision became final. On 26 May 2000, the authors initiated proceedings under the Code of Civil Procedure to execute the Decision. On 17 July 2000, Germany filed a complaint with the Athens Court of First Instance alleging that, under article 923 of the Code of Civil Procedure, the prior consent of the Minister of Justice is a precondition for enforcing a decision against a foreign State and that such consent had not been given. The Court dismissed the complaint on the grounds that article 923 was incompatible with article 6 of the European Convention on Human Rights and article 2, paragraph 3 of the Covenant. However, on appeal, the Athens Court of Appeal found that article 923 was not in breach of the European Convention or the Covenant. The Court held 145

(2010) UN doc CCPR/C/NZL/CO/5.

Introduction

37

that the limitation imposed by this provision did not provide for an outright prohibition on the enforcement of decisions against a foreign State; that it pursued an aim that was in the public interest, namely to avoid disturbances in relations between States; that it did not affect the right to effective legal protection; and that the right to enforcement could be exercised at a later date or in another country. On 28 June 2002, the Court of Cassation upheld the decision of the Athens Court of Appeal, following which Germany refused the payment and the Minister of Justice refused to authorize enforcement. ¶10.3 The issue before the Committee is whether the refusal of the Minister of Justice to authorize enforcement of Decision 137/1997, on the basis of article 923 of the Code of Civil Procedure, constitutes a breach of the right to effective remedy as provided under article 2, paragraph 3, with reference to the right to a fair hearing enshrined in article 14, paragraph 1 of the Covenant. ¶10.4 The Committee considers that the protection guaranteed by article 2, paragraph 3 and article 14, paragraph 1 of the Covenant would not be complete if it did not extend to the enforcement of decisions adopted by courts in full respect of the conditions set up in article 14. In the instant case, the Committee notes that article 923 of the Code of Civil Procedure, by requiring the prior consent of the Minister of Justice for the Greek authorities to enforce Decision 137/1997, imposes a limitation to the rights to a fair hearing and to effective remedy. The question is whether this limitation is justified. ¶10.5 The Committee notes the State party’s reference to relevant international law on State immunity as well as the Vienna Convention of 1969 on the Law of Treaties. It also notes the State party’s statement that the limitation does not impair the very essence of the authors’ right to an effective judicial protection; that it cannot be ruled out that the national court’s decision may be enforced at a later date, for example if the foreign State enjoying immunity from execution gave its consent to the taking of measures of constraint by the Greek authorities, thereby voluntarily waiving the application of the international provisions in its favour; and that this is a possibility expressly provided for by the relevant provisions of international law. The Committee also notes the authors’ contention that Germany is not covered by immunity from legal proceedings. In the particular circumstances of the present case, without prejudice to future developments of international law as well as those developments that may have occurred since the massacre perpetrated on 10 June 1944, the Committee considers that the refusal of the Minister of Justice to give consent to enforcement measures, based on article 923 of the Code of Civil Procedure, does not constitute a breach of article 2, paragraph 3 read together with article 14, paragraph 1 of the Covenant.

This case concerned a potential clash of international law norms, that is between the customary international rules of state immunity and articles 2(3) and 14 of the ICCPR. The majority basically implied that the rules of state immunity constituted a justifiable limitation to the relevant ICCPR rights. Mr Shearer’s dissent went further in finding the case inadmissible on the basis that Greece could not have acted any other way in light of clear rules of State immunity. [1.94] Messrs Lallah, Bouzid, and Salvioli dissented, and found that the majority’s reasoning negated the relevant ICCPR rights. They noted that harmony could in fact be achieved between the respective rules of international law, as nothing prevented the Greek government from satisfying the judgment itself, and then itself seeking reparations from Germany [25.19].

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[1.95] Therefore, the HRC was deferential to the law of State immunity in Sechremelis as well as the UN Charter in Sayadi and Vinck. In contrast, the HRC did not concede that the Hague Convention on the Civil Aspects of Child Abduction 1980 would in any way modify ICCPR obligations in Laing v Australia (901/99) [21.31]. Nor was there any deference evident towards a bilateral extradition treaty between Estonia and Russia in Borzov v Estonia (1136/02).146 It may also be noted that the HRC’s General Comment 24 on Reservations seems to contradict other sources of international law on the matter.147 [1.96] The HRC is irregular in its references to other human rights treaties. References to, for example, decisions of the European Court of Human Rights are sparse, and are normally prompted by the arguments of the parties. An example arose, regarding article 7 and the death penalty, in Larrañaga v Philippines (1421/05).148 More consistent reference to comparable international bodies might be preferable, in order to facilitate the development of consistent international human rights principles.149 [1.97] Certainly, there are a number of cases where the HRC has diverged from the case law of the European Court of Human Rights, for example regarding the right to represent one’s self in criminal proceedings,150 appellate rights in criminal proceedings,151 and the ‘death row phenomenon’.152 [1.98] In a number of cases involving forced disappearance, the HRC has explicitly utilized the definition of a ‘disappearance’ from article 7(2)(i) of the Rome Statute of the International Criminal Court. In Yurich v Chile (1078/02), a substantial minority of the HRC criticized this practice. Ms Chanet, Ms Palm, and Messrs Lallah, O’Flaherty, and Solari-Yrigoyen stated: By endorsing these criteria, which pertain to another international treaty, the Committee overlooks the fact that it must apply the Covenant, the whole Covenant and nothing but the Covenant.

In a similar case of Cifuentes v Chile (1536/06) [2.12], Ms Chanet, Ms Majodina, and Mr Lallah criticized the majority’s use of the definition of ‘disappearance’ from ‘article 2 of the International Convention for the Protection of All Persons from Enforced Disappearances of 20 December 2006, with additional support in footnotes referring to the Rome Statute of the International Criminal Court, the Inter-American Convention on Forced Disappearance of Persons and the Declaration on the Protection of All Persons from Enforced Disappearance’.153 They went on: . . . An ‘enforced disappearance’ is not a term or concept used in the Covenant, though it clearly has a negative impact on a number of rights consecrated by the Covenant. See also Maksudov et al v Kyrgyszstan (1461–2, 1476–7/06). See generally, [26.05] and [26.17]ff. At para 7.11. See also dissent of Mrs Wedgwood. 149 Harris, ‘The International Covenant on Civil and Political Rights’, 15. 150 Correia de Matos v Portugal (1123/02) [14.151]. 151 Gomariz Valera v Spain (1095/02) [14.198]; Uclés v Spain (1364/05). 152 153 Johnson v Jamaica (588/94) [9.81]. See para 8.4 as well as dissenting opinion. 146 147 148

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In basing the thrust of their reasoning on the constituent elements of a definition which is the creation of other international instruments, the majority in the Committee unfortunately failed to appreciate the fact that it is the provisions of the Covenant and its Optional Protocol which the Committee has the mandate to apply. In this regard, the majority consequently failed to appreciate that the Committee must determine whether the State party has or has not failed in fulfilling the obligations it has undertaken under the Covenant in relation to the violation of a number of the Covenant rights of the alleged victim.

Therefore, these minority opinions warn against the use of other treaties to elaborate upon human rights violations for the purposes of making decisions under the ICCPR. [1.99]

GENERAL COMMENT 31

¶11. . . . [T]he Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.

The General Comment confirms that the ICCPR applies alongside international humanitarian law in times of war.154 POSITIVE OBLIGATIONS

[1.100] Civil and political rights are classically perceived as freedoms from the arbitrary interference of the State.155 Therefore, they are generally conceptualized as ‘negative’ rights that States refrain from certain actions. This traditional conception of civil and political rights has largely contributed to the perception that these rights are cost-free, in that it does not ‘cost’ a State to refrain from doing something. Cost-free rights may also more fairly be imposed immediately, which in turn renders them justiciable. These ‘characteristics’ of civil and political rights may be contrasted with those commonly associated with economic, social, and cultural rights. The latter rights are traditionally perceived as ‘positive’, in that States are required to take action to provide them (eg States are required to provide for adequate health care and standards of education). Positive rights are consequently perceived as costly, progressive, and non-justiciable. Indeed, this sharply perceived divide between civil and political rights and economic social and cultural rights largely contributed to the decision to split the two sets of rights into two Covenants.156

154 See also Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion, ICJ Reports 2004 at 46–8). 155 McGoldrick, The Human Rights Committee, 11. 156 McGoldrick, The Human Rights Committee, 11. See also C Scott, ‘The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights’ (1989) 27 Osgoode Hall Law Journal 769, 832.

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[1.101] However, it is a divide that has proven simplistic and flawed. Indeed, intuition suffices to identify positive aspects within numerous ICCPR articles. For example, the article 10(1) guarantee of humane treatment in detention necessitates the construction of a sufficient number of detention centres to prevent overcrowding. The article 14(1) right to a fair trial obviously necessitates provision of independent organs of justice. The article 25(b) right to vote fundamentally involves provision of the necessary apparatus to ensure fair elections. The express duties to protect families in article 23 and children in article 24 overtly require positive measures. [1.102]

GENERAL COMMENT 31

¶6. The legal obligation under article 2, paragraph 1, is both negative and positive in nature. States Parties must refrain from violation of the rights recognized by the Covenant, and any restrictions on any of those rights must be permissible under the relevant provisions of the Covenant. . . . ¶7. Article 2 requires that States Parties adopt legislative, judicial, administrative, educative and other appropriate measures in order to fulfil their legal obligations. The Committee believes that it is important to raise levels of awareness about the Covenant not only among public officials and State agents but also among the population at large.

[1.103] The HRC has expressly found numerous positive duties imposed on States by the various substantive ICCPR rights. It has stated that States have duties to investigate allegations of ICCPR breach,157 and duties to provide procedures and mechanisms to prevent the occurrence of ICCPR breaches.158 Relevant personnel should be appropriately trained so as to instil in them knowledge of how to behave in conformity with the Covenant.159 A duty to educate the general population to imbue society with a human rights culture is mentioned in numerous Concluding Observations.160 As a final example, the HRC expressly incorporated positive obligations into its interpretation of article 27, the minority rights guarantee, in General Comment 23.161 [1.104] Linked to the HRC’s uncovering of positive aspects to civil and political rights has been its willingness to ‘permeate’ ICCPR rights with significant economic, social, and cultural elements.162 As mentioned above, article 26 has been interpreted to extend to non-discrimination in the arena of economic, social, and cultural rights [1.72]. Article 6, the right to life, has been interpreted to incorporate a duty upon States to tackle infant mortality, epidemics, and to take measures to

157 See eg General Comment 20, para 14, on the duty to investigate allegations of breaches of art 7 [9.161]. 158 See eg General Comment 20, para 11 [9.151]. 159 See eg General Comment 20, para 10 [9.150]. 160 See eg Concluding Observations on Hungary (1994) UN doc CCPR/C/79/Add.22, para 11; Concluding Observations on Ecuador (1998) UN doc CCPR/C/79/Add.92, para 21. 161 See [24.53]. 162 See generally Scott, ‘The Interdependence and Permeability of Human Rights Norms’.

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163

increase life expectancy. Thus, States are required to provide a certain minimum standard of health care, which is traditionally perceived as a social right. [1.105] HRC jurisprudence has gone some way towards undermining the traditional divide between civil and political rights and economic, social, and cultural rights. The HRC has confirmed that all ICCPR rights impose negative duties of forbearance and positive duties of performance on States Parties.164 STATE RESPONSIBILITY: VERTICAL AND HORIZONTAL OBLIGATIONS

[1.106] Most obviously, ICCPR rights should be enforceable, and remedies should be available against the State within its municipal jurisdiction; this is sometimes called the vertical implementation of the ICCPR. [1.107]

GENERAL COMMENT 31

¶4. The obligations of the Covenant in general and article 2 in particular are binding on every State Party as a whole. All branches of government (executive, legislative and judicial165), and other public or governmental authorities, at whatever level—national, regional or local—are in a position to engage the responsibility of the State Party. . . .

Therefore, the State is directly responsible for the actions of its own authorities, such as its police, prison officers, army, civil servants, legislators, and judicial officers. General Comment 31 mirrors the approach of the International Law Commission’s Articles on Responsibility of States for internationally wrongful acts. Article 7 states:166 The conduct of an organ of a State or of a person or entity empowered to exercise elements of governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.

[1.108]

JEGATHEESWARA SARMA v SRI LANKA (950/00)

This complaint concerned the disappearance of the author’s son. The State Party admitted that responsibility for the disappearance lay with one Corporal Sarath, an officer within the Sri Lankan army. The State Party argued that, by abducting the son, Corporal Sarath was operating outside his authority without the knowledge of the State Party. The author argued that the disappearance was part of a systemic army policy. The HRC declined to decide between the two factual arguments, as it stated: ¶9.2. With regard to the author’s claim in respect of the disappearance of his son, the Committee notes that the State party has not denied that the author’s son was abducted by 163

See General Comment 6 on art 6, para 5 [8.75]. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, XXI. 165 An example of violation perpetrated by the judicial branch of a State was in Fernando v Sri Lanka (1189/03), para 9.2, in a case concerning draconian penalties imposed for contempt of court [11.41]. 166 See UN General Assembly Resolution A/RES/56/83, 28 January 2002. 164

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The ICCPR

an officer of the Sri Lankan Army on 23 June 1990 and has remained unaccounted for since then. The Committee considers that, for purposes of establishing State responsibility, it is irrelevant in the present case that the officer to whom the disappearance is attributed acted ultra vires or that superior officers were unaware of the actions taken by that officer. The Committee therefore concludes that, in the circumstances, the State party is responsible for the disappearance of the author’s son.

[1.109]

LECRAFT v SPAIN (1493/06)

This case concerned a complaint about racial profiling [23.50]. A police officer had singled out the author for an identity check due to the colour of her skin. On the issue of Spain’s responsibility for the police officer’s actions, the HRC stated: ¶7.3 A State’s international responsibility for violating the International Covenant on Civil and Political Rights is to be judged objectively and may arise from actions or omissions by any of its organs of authority. In the present case, although there does not appear to have been any written order in Spain expressly requiring identity checks to be carried out by police officers based on the criterion of skin colour, it appears that the police officer considered himself to be acting in accordance with that criterion, a criterion considered justified by the courts which heard the case. The responsibility of the State party is evidently engaged. It is therefore for the Committee to decide whether that action is contrary to one or more of the provisions of the Covenant.

[1.110] The State, in fulfilling its duty to protect and ensure the enjoyment of ICCPR rights, also has a positive duty to impose obligations on non-governmental entities not to breach the rights of others; this is known as the horizontal implementation of the Covenant. Thus the ratification of the ICCPR means that the State must restrict some of the liberties of individuals, which may seem counterintuitive to the ICCPR’s Western liberal roots.167 The extent of a State’s ‘horizontal’ obligations under the ICCPR is however a much greyer area than the extent of a State’s ‘vertical’ obligations, as horizontality is a relatively underdeveloped area of international human rights law. A State’s horizontal obligations cannot be as strict as its vertical obligations; a State cannot be expected to exercise the same degree of control over private persons as it does over its own servants, lest it encroach the rights of the former persons. [1.111] In the Velasquez-Rodriguez Case, the Inter-American Court said of a State’s horizontal obligations under the American Convention on Human Rights:168 ¶172. An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention [emphasis added]. 167 Joseph, ‘A Rights Analysis of the Covenant on Civil and Political Rights’, 74–5. Note, however, that early natural rights theories envisaged the curtailment of freedoms in order to prevent harm to others [1.05]. 168 Reported at (1988) 9 Human Rights Law Journal 212, emphasis added.

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[1.112] In Osman v UK, the State Party was accused of failing to take sufficient steps to protect the life of one Ali Osman from his murderer, one Paul Paget-Lewis. In coming to its conclusion that article 2 of the ECHR (the guarantee of the right to life) had not been violated, the European Court of Human Rights stated:169 ¶116. For the Court, and having regard to the nature of the right protected by article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case [emphasis added].

[1.113] The Velasquez and Osman cases indicate that States Parties to human rights treaties are required to take reasonable steps and exercise due diligence, in preventing, deterring, investigating, and punishing violations of human rights by private entities. In contrast, a State has strict liabilities either to prevent or remedy human rights abuses perpetrated by its own agents. [1.114] Some ICCPR rights have an express horizontal effect. Article 20 requires States to prohibit war propaganda, and the advocacy of national, racial, or religious hatred.170 Articles 6(1) and 17(2) state that the rights to life and privacy, respectively, must be protected by law. Therefore, States must provide legal protection from homicides and intrusions into privacy by non-government entities.171 The other UN treaties also provide that rights therein have a horizontal effect. For example, both anti-discrimination treaties require that measures be taken to combat, respectively, race and sex discrimination in the private sphere,172 as has been reflected in the case law thereunder.173 The International Convention as the Protection of the Rights of all Migrant Workers and Members of their Families 1990 explicitly obliges States Parties in article 16(2) to provide effective protection for migrant workers ‘against violence, physical injury, threats and intimidation . . . by public officials or by private individuals, groups or institutions’. Finally, the HRC has frequently alluded to the horizontal effects of ICCPR rights in its General Comments. For example, in General Comments regarding articles 7 and 26, the HRC has stressed that States Parties should take measures to combat private acts of, respectively, torture, inhuman and degrading treatment, and discrimination.174 The horizontal application of the ICCPR is discussed in Chapter 4. 169 Judgment of 28 October 1998, reported in (2000) 29 European Human Rights Review 245 at 306, emphasis added. 170 See generally Ch 18. 171 See, on private homicides, [8.41]ff, and on non-government invasions of privacy, [16.15]ff. See eg regarding the State’s treatment of instances of domestic violence and rape, Concluding Observations on Cameroon (2010) UN doc CCPR/C/CMR/CO/4, para 11, and Kuwait (2011) UN doc CCPR/C/ KWT/CO/2, para 15. 172 See eg art 2(d) ICERD and art 2(e) CEDAW. 173 See eg the CEDAW decisions on domestic violence in AT v Hungary (CEDAW 2/03), Goekce v Austria (CEDAW 5/05), Yildirim v Austria (CEDAW 6/05), Kell v Canada (CEDAW 19/08), and VK v Bulgaria (CEDAW 20/08). See also, concerning discrimination and women’s maternal heath, Teixiera v Brazil (CEDAW 17/08). 174 See [9.28] and [23.96].

The ICCPR

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[1.115] The ability to enjoy most ICCPR human rights would be totally undermined if States had no duties to control human rights abuse in the private sector. Therefore, the general duty in article 2(1) on States to ‘ensure’ ICCPR rights entails a duty to protect individuals from abuse of all ICCPR rights by others. SYSTEMIC HUMAN RIGHTS ABUSE

[1.116] Although ICCPR rights are essentially bestowed on individuals, certain civil and political rights abuses are so endemic that they cannot realistically be addressed at an individual level. For example, systemic inequality may arise where certain groups have been oppressed in a certain society for centuries. Yet it is hard to prove that one is an individual victim of ‘systemic inequality’.175 Such systemic abuses of civil and political rights are not so easily identifiable or rectifiable under the individualistic Optional Protocol procedure. [1.117] The prevalence of systemic human rights abuse demonstrates the fallacy in conceiving of all human rights in terms of individual rights. Some of the more ‘systemic’ human rights duties of States are better viewed conceptually as group rights. For example, the right of self-determination in article 1 expressly belongs to peoples, and cannot in fact be enforced under the individual communications mechanism.176 In this respect, the General Comments and Concluding Observations provide important consensus interpretations of ICCPR rights, particularly in regard to complex issues at a macro level. GENERAL COMMENT 31

[1.118]

In General Comment 31, the HRC noted the variety of extra-legal ways in which systemic civil and political rights abuse can be tackled. ¶7. Article 2 requires that States Parties adopt legislative, judicial, administrative, educative and other appropriate measures in order to fulfil their legal obligations. The Committee believes that it is important to raise levels of awareness about the Covenant not only among public officials and State agents but also among the population at large.

Cultural Relativism and Civil and Political Rights [1.119] Given their apparent Western origins, it is not surprising that the authority of the notion of ‘international’ civil and political rights has been questioned by non-Western nations. Perhaps it is culturally imperialistic for Western nations to insist that other nations comply with civil and political standards. An initial response to the ‘cultural imperialist’ argument against civil and political rights is to note the large percentage of States, representing all types of cultures and religions, that have freely ratified the ICCPR, indicating a reasonable degree of international consensus over the validity of the broad principles therein expressed. Nevertheless, 175

See [23.104]ff.

176

See eg Kitok v Sweden (197/85), [7.24].

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there are significant absentees, including States which have strongly advocated the notion of cultural relativism in relation to civil and political rights, such as the People’s Republic of China,177 Malaysia, and Saudi Arabia. Furthermore, there is a vast difference between States with regard to the interpretation of ICCPR rights. Therefore, it is important to examine some of the arguments which suggest that civil and political rights are essentially Western constructs of little relevance to the non-Western world. INDIVIDUAL AND COLLECTIVE RIGHTS

[1.120] The strongly individualistic flavour of civil and political rights, including those in the ICCPR, does not conform to the more collectivist notions of rights in some non-Western States.178 However, one may note that article 1 of the ICCPR recognizes an important collective right, the right of peoples to self-determination. Moreover, some ICCPR rights necessarily envisage enjoyment by groups of people, such as the article 22 right of freedom of association and the minority rights guarantee in article 27.179 Furthermore, the rights enunciated in the ICCPR temper the individualism found in some of the early Western Bills of Rights. For example, the First Amendment in the US Bill of Rights declares in absolutist language that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . . ’. In contrast, the guarantee of freedom of expression in article 19 ICCPR may be limited by measures ‘as are provided by law and are necessary’ to protect the rights or reputations of others, national security, public order, public health, or public morals. The ICCPR, by prescribing numerous permissible limitations to its rights, authorizes many instances where the collective rights and probably the cultural needs of society can trump individual freedoms.180 RIGHTS AND DUTIES

[1.121] The focus on the ‘rights’ of individuals contrasts sharply with non-Western traditional focuses on the ‘duties’ owed by individuals to their communities. However, in his influential analysis of rights, Hohfeld persuasively argues that rights are the jural correlative of duties.181 That is, when a person is vested with rights, another is vested with duties to respect those rights. Therefore, duties generate rights and vice versa, and can be seen as two sides of the same coin. 177 The PRC has succeeded to the United Kingdom’s ICCPR obligations in respect of Hong Kong, and Portugal’s ICCPR obligations in respect of Macao: see [26.47]. China signed the ICCPR in 1998. 178 F Jhabvala, ‘The International Covenant on Civil and Political Rights as a Vehicle for the Global Promotion and Protection of Human Rights’ (1985) 15 Israel Yearbook on Human Rights 184, 198. 179 General Comment 31, para 9. 180 Donoho, ‘Relativism versus Universalism in Human Rights’, 378. See also Joseph, ‘A Rights Analysis of the Covenant on Civil and Political Rights’, 68. 181 WN Hohfeld, ‘Some Fundamental Legal Conceptions as Applied to Judicial Reasoning’ (1913) 23 Yale LJ 16.

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Thus, the rights/duties cultural dichotomy may be one of mere nomenclature.182 Of course, the classical conception of civil and political rights in Western liberal theory is that they impose duties upon governments, rather than other individuals. However, as described above [1.114], the ICCPR has been interpreted so as to require States to impose duties upon individuals and other private entities within the jurisdiction to respect the rights of others.183 In this respect, one may again note article 19 of the ICCPR, which explicitly states that exercise of the right to freedom of expression ‘carries with it special duties and responsibilities’. PREDOMINANCE OF CIVIL AND POLITICAL RIGHTS OVER ECONOMIC, SOCIAL, AND CULTURAL RIGHTS

[1.122] A further criticism of civil and political rights relates to their undoubted predominance in the modern human rights system over economic, social, and cultural rights, which are perceived to be of greater concern to the less developed non-Western world.184 Indeed, there is little doubt that certain Western nations, particularly the United States, have been hostile to the notion of economic, social, and cultural ‘rights’.185 On the other hand, significant economic and social rights are guaranteed within the framework of the European Union and the Council of Europe. Ultimately, this ‘predominance’ argument essentially advocates the recognition of the two sets of rights as truly ‘indivisible and interdependent and inter-related’,186 entailing the strengthening of economic, social, and cultural rights, rather than the necessary weakening of civil and political rights. ECONOMIC RELATIVISM

[1.123] A related argument is that protection of civil and political rights is antipathetic to the protection of economic, social, and cultural arguments. This argument holds that the classical political rights, such as rights to vote and of political participation, and freedoms of expression, assembly, and association187 are inappropriate in States with vulnerable, developing economies. Enforcement of such rights is said to distract and divide a State when strong leadership, most contentiously in the form of one-party political systems, is said to be needed to ensure strong economic direction. In such States, the priority for the nation is said to be economic development: ‘full’ protection of civil and political rights should therefore be postponed until a satisfactory rate of economic development has been achieved.188 This argument therefore See also M Perry, The Idea of Human Rights (Oxford University Press, 1998), 51. See also Lauren, The Evolution of International Human Rights, Ch 1. 184 See O Yasuaki, ‘Toward an Inter-Civilizational Approach to Human Rights’, in J Bauer and D Bell (eds), The East Asian Challenge for Human Rights (Cambridge University Press, 1999), 112–18. 185 Steiner, Alston, and Goodman, International Human Rights in Context, 528–31. 186 See Vienna Declaration and Programme of Action 1993, para 5. 187 Of course, the rights to freedom of expression, assembly, and association also apply in non-political contexts. 188 See eg A Sen, ‘Critical Perspectives on the “Asian Values” Debate’, in Bauer and Bell (eds), The East Asian Challenge for Human Rights, describing the debate at 90–1. 182 183

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suggests that civil and political rights are economically relative, in the sense that their protection should vary according to a State’s economic capacities. [1.124] In response, it is observed that respect for civil and political rights ensures a high degree of government accountability, and therefore acts as an essential barrier against the development of endemic corruption: official corruption is one of the worst dangers to orderly economic development. Even in the absence of corruption, civil and political freedoms can ensure that the government and the people are exposed to a wide range of views, and are not therefore denied access to ‘good’ ideas.189 Furthermore, compelling arguments have been made that development cannot be viewed purely as an economic matter, lest the most vulnerable and even the majority in society get left behind. Truly beneficial development within a society entails civil, political, and social development rather than only economic development.190 Finally, underdeveloped States Parties to the ICCPR have freely consented to the obligation in article 2(1) immediately to guarantee the rights therein, rather than postpone them pending transition to a satisfactory development condition. THE ICCPR AND CULTURAL/ECONOMIC RELATIVISM

[1.125] The ICCPR is generally enunciated in universalist language. For example, the preamble cites the ‘inherent dignity’ and the ‘equal and inalienable rights of all members of the human family’. Such words do not import notions of different rights for members of different cultures. Furthermore, States Parties have freely ratified the treaty. After such consensual ratification, it perhaps seems unconvincing for a State to claim cultural exemption from certain rights. Finally, the immediacy of the article 2(1) obligation, especially when compared to the progressiveness of the ICESCR obligation, seems to confirm that ICCPR implementation cannot be ‘delayed’ until economic circumstances improve.191 [1.126]

GENERAL COMMENT 31

¶14. The requirement under article 2, paragraph 2, to take steps to give effect to the Covenant rights is unqualified and of immediate effect. A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the State.

[1.127] However, the ICCPR does cater to some extent for cultural differences. First, States can enter relevant reservations if they refuse to implement certain rights.192 The HRC has, however, purported severely to limit State rights of 189 For example, Sen notes that the ‘Great Leap Forward’ policy in China was not reversed for three years, while millions died. ‘No democratic country with opposition parties and a free press would have allowed that to happen’: Sen, ‘Critical Perspectives on the “Asian Values” Debate’, 93. 190 See generally A Sen, Development as Freedom (Oxford University Press, 2001). See also Declaration on the Right to Development 1986. 191 Note, however, the apparent progressive obligation in art 23(4): see [20.55]. 192 Donoho, ‘Relativism versus Universalism in Human Rights’, 364.

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reservation in its General Comment 24. The HRC listed a number of rights to which no reservation could be allowed, including some rights at the crossroads of cultural argument, such as freedom of thought, conscience, and religion (article 18(1)). Indeed, General Comment 24 has proven to be quite controversial, though ‘cultural’ objections to it have not been specifically raised.193 [1.128] Secondly, the existence of numerous limitations to certain ICCPR rights allows some room for cultural diversity in their interpretation. For example, a number of rights may be expressly limited by proportionate measures designed to protect ‘public morals’, which is an inherently relativist concept inevitably varying in its application from State to State.194 Indeed, the uncertainty entailed in ICCPR limitations introduces flexibility to human rights interpretation, and generates ideological and cultural debate over the content of human rights guarantees.195 [1.129] As the HRC has a multinational membership, representing the ‘different forms of civilization and . . . the principal legal systems’,196 and has jurisdiction over States from all parts of the world, its interpretation of the ICCPR provides fertile ground for identifying and perhaps resolving cultural clashes over human rights. [1.130] In Toonen v Australia (488/92), the HRC found that anti-sodomy laws in Tasmania were a breach of article 17 of the ICCPR, the right to privacy. In its unanimous decision, the HRC was clearly influenced by the fact that all other Australian states had repealed such laws, and that there was ‘no consensus’ regarding the appropriateness of the laws in Tasmania.197 This decision indicated that the ICCPR could potentially be interpreted in a relativist manner—perhaps similar laws in a different State with no comparable record of tolerance and acceptance of homosexuality would survive a similar challenge.198 In addition, in Aumeeruddy-Cziffra et al v Mauritius (35/78) (the Mauritian Women’s Case), the HRC stated, with regard to article 23 of the ICCPR, which guarantees rights of protection for the family: ¶9.2(b)2(ii)1. The Committee is of the opinion that the legal protection or measures a society or a State can afford to the family may vary from country to country and depend on different social, economic, political and cultural conditions and traditions.

Thus, there have been some indications that the HRC is prepared to adopt a relativist interpretation of the ICCPR rights. [1.131] However, since the Toonen decision in 1994, the HRC has clearly exhibited disapproval of culturally relativist arguments. For example, there is no indication

193

See generally Ch 26. See eg Delgado Páez v Colombia (195/85), [18.70], and Hertzberg et al v Finland (61/79), [18.68]. See also Handyside v UK, judgment of the European Court of Human Rights of 7 December 1976, reported in (1979) 1 EHRR 737, at para 48. 195 See Donoho, ‘Relativism versus Universalism in Human Rights’, 370 and 382–4. 196 197 Article 31 ICCPR. At para 8.6 [16.50]. 198 Joseph, ‘Toonen v Australia: Gay Rights under the ICCPR’, 407–8. 194

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of relativism in Young v Australia (941/00) and X v Colombia (1361/05), where the HRC found that social security laws which discriminated against same-sex couples breached article 26 [23.54], apart from a homophobic minority opinion by Messrs Amor and Khalil in X. Otherwise, the HRC has consistently criticized anti-gay laws in a large number of States Parties with populations that are traditionally more homophobic than that of Australia [16.52]. It has also taken the opportunity to condemn numerous practices that could possibly be defended as cultural traditions such as female genital mutilation [9.62] and polygamy in Africa [20.52], Islamic laws regarding apostasy [17.12], and prohibitions on abortion.199 [1.132]

GENERAL COMMENT 28

In General Comment 28 on the Equality of Rights Between Men and Women, the HRC noted the following: ¶5. Inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes. . . . States parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right to equality before the law and to equal enjoyment of all Covenant rights. States parties should furnish appropriate information on those aspects of tradition, history, cultural practices and religious attitudes which jeopardise, or may jeopardise, compliance with article 3, and indicate what measures they have taken or intend to take to overcome such factors.

It is not surprising that the HRC’s strongest rejection of cultural relativism should appear in a consensus comment on the rights of women, an issue which gives rise to acute cultural divergences.200 [1.133] Similarly, the HRC has not generally accepted economic relativist arguments. For example, in Lubuto v Zambia (390/90), economic hardship could not justify the delay in the author’s appeal of his conviction [14.140].201 In Mukong v Cameroon (458/91), it refused to accept that economic hardship and budgetary considerations could excuse the State from liability for the atrocious prison conditions suffered by the author [9.46] or the suppression of free speech [18.60]. In Giri v Nepal (1761/08), the State Party had tried to justify poor prison conditions on the basis of general standards of living in the country: the HRC disagreed [9.203]. Indeed, in its General Comment 21 on article 10, the HRC noted that the obligation to treat detainees with respect for their dignity ‘cannot be dependent on the material resources available in the State party’.202 Underdevelopment cannot therefore justify overcrowding in prisons, or the failure to provide adequate resources to detainees. On the other hand, in Aumeeruddy-Cziffra et al v Mauritius (35/78), the HRC did state that the level of protection required for families under article 23 may vary 199

See [8.90]ff. See also Concluding Observations on Zambia (2007) UN doc CCPR/C/ZMB/CO/3, para 13; Cameroon (2010) UN doc CCPR/C/CMR/CO/4, para 8. 201 See also HRC decision in Fillastre and Bizouarn v Bolivia (336/88) [11.63]. 202 See General Comment 21, para 4 [9.200]. 200

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The ICCPR

according to ‘different social, economic, political and cultural conditions and traditions’.203 This may indicate that economic relativism does apply, perhaps uniquely within the ICCPR, to the level of entitlement entailed in article 23 rights. However, economic relativism does not generally apply to ICCPR rights, unlike the rights in the ICESCR.204 [1.134] Thus, it appears that the HRC rarely views ‘culture’ and/or a vulnerable economy as an excuse to alleviate liability under the ICCPR. Indeed, the HRC stated in General Comment 31: ¶14. The requirement under article 2, paragraph 2, to take steps to give effect to the Covenant rights is unqualified and of immediate effect. A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the State.

[1.135] However, the HRC has also recognized that the reversal of traditional attitudes cannot realistically occur overnight even though the obligations in the Covenant are expressly immediate in article 2(1). For example, regarding Cameroon, the HRC has stated in relation to systemic sex discrimination:205 ¶25. The Committee invites the Government to improve the situation of women with a view to achieving the effective application of article 3 of the Covenant, in particular by adopting the necessary educational and other measures to overcome the weight of certain customs and traditions. . . .

Regarding Senegal, the HRC stated the following:206 ¶12. . . . The Committee encourages the State party to launch a systematic campaign to promote popular awareness of persistent negative attitudes towards women. . . .

Therefore, it is sensibly recognized that States cannot produce instant changes in cultural attitudes, but must make sincere efforts in that regard when such attitudes threaten enjoyment of civil and political rights. The HRC’s occasional emphasis on educational rather than coercive measures may signal some sort of exemption from the normal immediacy of ICCPR obligations in culturally sensitive areas. It is also possible that the HRC gives more leeway to a State when the ‘cultural’ threat to civil and political rights arises from the attitudes of its people, rather than directly from the laws of the State in question.207 [1.136] The above commentary should not be interpreted as implying that Western nations have a perfect record under the ICCPR. Western nations have been found in violation of the ICCPR on many occasions. Indeed, the function of the ICCPR (and the UDHR before it) is not only to universalize certain Western values but 203

At para 9.2(b) 2 (ii) 1: see [20.05]. The ICESCR implicitly recognizes that poorer States cannot guarantee ICESCR rights to the same extent as richer States in its progressive obligation provision, art 2(1). 205 Concluding Observations on Cameroon (1994) UN doc CCPR/C/79/Add.33, para 25. 206 (1997) UN doc CCPR/C/79/Add.82. 207 This approach may mirror the comparison (in terms of stringency) between a State’s vertical and horizontal obligations: see [1.110]. 204

Introduction

51

also universally to forbid some of them, such as racism, anti-Semitism, colonization, and slavery.208 [1.137] Does the HRC ever defer to the State’s authorities for political reasons? That is, are rights occasionally politically relative? One would think that such deference would entirely undermine the HRC’s role as a guardian of human rights. Yet there are few other explanations for the next case. O’NEILL and QUINN v IRELAND (1314/04) The authors were convicted of killing Garda McCabe, an Irish police officer (garda), in Ireland in 1996 during an attempted robbery carried out by the terrorist group, the Provisional Irish Republic Army (IRA). In 1998, the UK and Irish governments concluded ‘the Good Friday Agreements’ (GFA) which effectively ended the long-standing conflict in Northern Ireland. One GFA chapter dealt with the release of prisoners, including convicted terrorists on both sides of the conflict. Ireland implemented this release scheme under the Criminal Justice, Release of Prisoners Act 1998 (Ireland) under which ‘qualifying prisoners’ could be released. The definition of a qualifying prisoner was left to the discretion of the Justice Minister. The authors obtained documents under freedom of information legislation which confirmed that they had been excluded from classification as ‘qualifying prisoners’. It seemed that persons who committed offences on behalf of the IRA prior to the conclusion of the GFA were qualifying prisoners. So too were many convicted of murdering Irish gardai. Finally, persons convicted for offences committed on behalf of the IRA after the GFA were also qualifying prisoners, but the authors were explicitly excluded, apparently due to the need to ensure public support for the release plan and the GFA. The authors claimed that Ireland’s failure to release them under the GFA release scheme was discriminatory contrary to articles 2(1) and 26, as others convicted of comparable or even graver offences had been released. They claimed that the discrimination was arbitrary as their exclusion from the release scheme was due to political considerations. Ireland confirmed that the two were excluded from the release scheme because it ‘considered that their release would not be tolerated by the People of Ireland’.209 The HRC found no breach of the ICCPR [23.128]: ¶8.4. The Committee observes that it was pursuant to the Multi-party Agreement—a political agreement—that the Release of Prisoners’ Scheme was enacted, and considers that it cannot examine this case outside its political context. It notes that the early release scheme did not create any entitlement to early release but left it to the discretion of the relevant authorities to decide, in the individual case, whether the person concerned should benefit from the scheme. It considers that this discretion is very wide and that, therefore, the mere fact that other prisoners in similar circumstances were released does not automatically amount to a violation of article 26. The Committee notes that the State party justifies the exclusion of the authors 208 See Ignatieff, Human Rights as Politics and Idolatry, 92; J Donnelly, ‘Human Rights and Asian Values: A Defence of “Western” Universalism’, in Bauer and Bell (eds), The East Asian Challenge for Human Rights, 68. 209 At para 4.6.

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The ICCPR

(and others involved in the incident in which Garda McCabe was murdered) from the scheme, by reason of the combined circumstances of the incident in question, its timing (in the context of a breach of a cease-fire), its brutality, and the need to ensure public support for the GFA. In 1996 when the incident occurred, the government assessed the impact of the incident as exceptional. For this reason, it considered that all those involved would be excluded from any subsequent agreement on the release of prisoners. This decision was taken after the incident in question but before the conviction of those responsible, and thus, focused on the impact of the incident itself rather than on the individuals involved. All those responsible were made aware, from the outset, that if they were convicted of having had any involvement in the incident, they would be excluded from the scheme. The Committee also notes that, apparently, others convicted of killing Gardai who benefited from the early release scheme had already served long sentences . . . The Committee considers that it is not in a position to substitute the State party’s assessment of facts with its own views, particularly with respect to a decision that was made nearly ten years ago, in a political context, and leading up to a peace agreement. It finds that the material in front of it does not disclose arbitrariness and concludes that the authors’ rights under article 26 to equality before the law and to the equal protection of the law have not been violated.

This case threw up a perplexing question: to what extent, if ever, should human rights be sacrificed for the purposes of political necessity? The decision served a utilitarian purpose by permitting the singling out of the authors (and their accomplices) for non-release, perhaps unfairly, to ensure ongoing public support for a process that has brought peace to a long-standing bloody conflict. Whilst human rights are not inherently utilitarian, utilitarianism is an occasional factor in determining whether a human right has been permissibly limited in order to facilitate a broad public interest such as public order or national security. Nevertheless, acceptance of ‘political necessities’ as a legitimate reason for the limited application of human rights sets a dangerous precedent which has the capacity to sacrifice the rights of unpopular minorities to satisfy the whimsical political preferences of the majority. It is therefore hoped that this case is treated as an anomaly, dictated by unique circumstances.210

The Human Rights Committee—an Appraisal [1.138] This book is concerned with the content of the jurisprudence arising from the UN Human Rights Committee on the meaning of the rights in the ICCPR, and the admissibility requirements under the Optional Protocol. It is not generally concerned with the workings and functionality of the Committee, and the broader UN treaty body system. [1.139] There is no doubt that there are pressures on that system as acknowledged in a recent report prepared by the UN High Commissioner for Human Rights.211 All UN treaty bodies are part-time, unsurprising given the members are unpaid (though expenses during meetings are paid). Each Committee faces a substantial backlog in its consideration of State Reports and, where relevant, individual communications. See also dissent of Mrs Wedgwood in Czernin v Czech Republic (823/98). Strengthening the United Nations human rights treaty body system: A report by the United Nations High Commissioner for Human Rights Navanethem Pillay, June 2012, available at (accessed December 2012). 210 211

Introduction

53

Only 16 per cent of States report on time, but the backlogs would be even worse if there was greater compliance in this respect. In 2010, the International Service for Human Rights, a non-governmental organization, reported that the average wait for the resolution of an Optional Protocol case on the merits was 47 months.212 [1.140] The treaty body system has doubled in size since 2000, with the number of treaty body experts expanding from 74 to nearly 200. Part of the increase is due to the creation of new treaty bodies as new treaties, such as the Convention on the Rights of Persons with Disabilities 2006, have come into force. Yet funding for the system has not come close to coping with this expansion in the system. [1.141] Also worrying is the apparent lack of respect for the HRC and the other treaty bodies evinced by the States Parties. As noted above, State Reports are frequently late. Furthermore, the quality of reports can be poor in terms of substance and veracity. Finally, States often fail to implement the recommendations of the HRC in both Concluding Observations and OP views. This disrespect cannot be blamed simply on the HRC’s lack of judicial status, or the lack of rigorous follow-up mechanisms.213 The unsatisfactory response of States may be largely caused by the ‘unyielding attitudes of the recalcitrant States’.214 Indeed, one may note that non-compliance is a general problem with the international legal system. For example, States have occasionally ignored findings of the International Court of Justice, the world’s premier international court.215 Therefore, it is unfair to judge the HRC harshly due to the poor compliance rates of some States. [1.142] It must also be remembered that the sole concern of the HRC is to monitor implementation of the ICCPR; external politically or economically expedient considerations that commonly influence governments are normally irrelevant to the HRC’s decision regarding violation or non-violation of its treaty.216 Therefore, it is inevitable that the HRC will make decisions which do not sit comfortably with governments. Furthermore, HRC rulings can have a substantial impact in the absence of immediate State obedience. They can inject ICCPR issues into domestic debate, and provide arguments for domestic lobby groups and monitoring bodies to pressure governments. They can also provide pointers for future reform. Finally, they provide guidance for the interpretation of the Covenant, which is relevant not only for the target State but for all States Parties, particularly in those States where domestic courts regularly refer to HRC cases. 212 International Service for Human Rights, ‘The Treaty Body Complaint System’, Human Rights Monitor Quarterly, October 2010, 1. 213 See generally M Schmidt, ‘Follow-up of Treaty Body Conclusions’, in A Bayefsky (ed), The UN Human Rights System in the 21st Century (Kluwer Law International, 2000), 233–49. 214 H Steiner, ‘Individual Claims in a World of Massive Violation: What Role for the Human Rights Committee’, in P Alston and J Crawford (eds), The Future of the UN Human Rights Treaty Monitoring System (Cambridge University Press, 2000), 30. 215 For example, the United States breached a provisional measures order of the International Court of Justice (ICJ) in Germany v USA (LaGrand), Order of 3 March 1999, [1999] ICJ Rep 9, requesting that the United States refrain from executing a German citizen, LeGrand, who had been denied consular access upon arrest in breach of international law. The ICJ later found that its provisional measures order was legally binding in [2001] ICJ Rep 104, decision of 27 June 2001. 216 Alston and Crawford (eds), The Future of the UN Human Rights Treaty Monitoring System, 10–11. See, however, [1.137].

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[1.143] Of more relevance to this book are criticisms relating to the substantive worth of the HRC’s work as a guide to interpretation of the ICCPR. OP decisions are of varying quality. While they commonly outline the various arguments of the petitioner and the impugned State, the final views of the HRC can often be very brief, with few clues as to how the decision was reached.217 Yet there are many outstanding decisions which have shed light on very important human rights issues, such as holocaust denial [18.90], abortion [8.xx], the death row phenomenon [9.81], and preventive detention [11.35]. Furthermore, the greater frequency of individual opinions, both dissenting and concurring, is a welcome development, as these opinions are often better reasoned than the plenary decision [1.35]. General Comments and Concluding Observations also provide important guidance to the interpretation of the ICCPR. General Comments have long been excellent elaborations upon their respective subject matters, while the quality of Concluding Observations has improved markedly over the last decade.

Conclusion [1.144] Despite the obvious problems, the treaty-monitoring bodies, exemplified by the HRC, ‘have come a very long way in a short period of time’.218 The treaty-monitoring system is an important quasi-judicial adjunct to the more political UN human rights bodies, such as the Human Rights Council and the General Assembly. The treaty-monitoring system ensures some measure of human rights accountability before expert bodies for all States, as all States have now ratified at least two of the core UN human rights treaties. Unlike the arguably superior regional human rights systems, the UN system has to cope with a large number of varied State Parties, in terms of culture, economics, and politics, many of whom are reluctant to create a truly effective universal human rights monitoring regime.219 In that context, the HRC’s achievement in developing over 35 years a substantial jurisprudence under the OP and through its Concluding Observations and General Comments, and a functioning if imperfect State reporting system, is indeed significant. [1.145] Despite its deficiencies, the civil and political rights norms developed under the ICCPR and other UN treaties are of obvious relevance to the interpretation of these rights by judges, lawyers, government officials, and human rights advocates in all municipal jurisdictions due to their universal applicability. Those norms, as well as the strengths and shortcomings of the jurisprudence of the HRC and the other treaty bodies, are explored in excerpts and accompanying commentaries in the following chapters.

217 Steiner, ‘Individual Claims in a World of Massive Violation’, 38–42. See also A Byrnes, ‘An Effective Individual Complaints Mechanism’, in Bayefsky (ed), The UN Human Rights System in the 21st Century, 149–51. The decisions of Ominayak v Canada (167/84) [24.27] and Kivenmaa v Finland (412/90) [19.08] are examples of such poor quality decisions. 218 P Alston, ‘Beyond “Them” and “Us”: Putting Treaty Body Reform into Perspective’, in Alston and Crawford (eds), The Future of the UN Human Rights Treaty Monitoring System, 522. 219 Alston, ‘Beyond “Them” and “Us”’, 522.

Part II

Admissibility Under the ICCPR

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2 The ‘Ratione Temporis’ Rule • When does Time Begin? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Continuing Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Disappearances and Continuing Violations . . . . . . . . . . . . . . . . . . . . . • The Affirmation Doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[2.03] [2.06] [2.11] [2.14] [2.23]

[2.01] Under article 1 of the First Optional Protocol (OP), a claim can only be brought by an individual against a State Party to the Covenant which is also a party to the Protocol. Under article 3 OP, no communication may be submitted which is ‘incompatible with the provisions of the Covenant’. Under these two provisions, the Committee is precluded from adjudicating on a matter if it is inadmissible ratione temporis (by reason of time). If the facts complained of date from a period prior to that on which the OP entered into force with respect to the State Party concerned, the Committee is incompetent ratione temporis to consider the application. The basis of this rule flows from the generally recognized principle of international law, that treaties will not have a retroactive effect.1 [2.02] Kim v Republic of Korea (574/94) demonstrates that it is important to know what event has given rise to the complaint. The author complained here of his conviction under a National Security Law for his expression of certain political opinions. The State Party argued that, as the authors’ violations of the National Security Law occurred before entry into force of the OP, the complaint was inadmissible ratione temporis. The Human Rights Committee (HRC) disagreed, as ‘the violation alleged by the author was his conviction under the National Security Law’, rather than the events giving rise to the conviction. The conviction occurred after entry into force of the OP.2 Furthermore, in Somers v Hungary (566/93), the complaint concerned, in part, the expropriation of the author’s parent’s property by the Hungarian communist government in 1951. This complaint was obviously inadmissible ratione temporis.3 However, the complaint also concerned subsequent restitution legislation adopted by the new Hungarian government in 1991 and 1992, after the entry into force of the OP for Hungary. As the 1991–92 legislation redressed the losses of only some victims of the communist expropriations

1 See JS Davidson, ‘Admissibility under the Optional Protocol to the International Covenant on Civil and Political Rights’ (1991) 4 Canterbury Law Review 337 at 342, citing arts 4 and 28 of the Vienna Convention on the Law of Treaties. 2 See also Holland v Ireland (593/1994), para 9.2. See also T Zwart, The Admissibility of Human Rights Petitions (Martinus Nijhoff Publishers, 1994), 125–6. 3 It was also inadmissible ratione materiae as the ICCPR does not guarantee a right to property.

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but not others, it could be challenged as a breach of the article 26 guarantee of non-discrimination.4

When does Time Begin? [2.03] One issue is whether the Committee may examine violations of the Covenant that occurred after entry into force of the Covenant but prior to entry into force of the OP. This issue has been addressed by the Committee in numerous cases, including Könye and Könye v Hungary (520/92).

KÖNYE and KÖNYE v HUNGARY (520/92) ¶6.4. The Committee begins by noting that the States party’s obligations under the Covenant apply as of the date of its entry into force for the State party. There is, however, a different issue as to when the Committee’s competence to consider complaints about alleged violations of the Covenant under the Optional Protocol is engaged. In its jurisprudence under the Optional Protocol, the Committee has held that it cannot consider alleged violations of the Covenant which occurred before the entry into force of the Optional Protocol for the State party, unless the violations complained of continue after the entry into force of the Optional Protocol. . . .

This view has been upheld consistently by the Committee.5 While a violation of the Covenant constitutes a breach of the ICCPR whether a State has ratified the OP or not, the date of entry into force of the OP is the key in determining whether a complaint of violation is admissible. [2.04] In Párkányi v Hungary (410/90), the State Party failed to object to the Committee’s competence to hear a claim concerning the author’s detention, despite the fact that the impugned events occurred after entry into force of the Covenant for Hungary, but prior to entry into force of the OP. Indeed, the State Party expressly conceded that the communication was admissible ratione temporis.6 The Committee majority, in considering itself competent to hear the claim, implicitly found that Hungary had validly waived its rights in this respect.7 Párkányi is the only case where the Committee has not strictly applied the ratione temporis rule.8

4

At paras 6.3–6.4; the case was subsequently dismissed on the merits. See also MT v Spain (310/88), AIE v Libya Arab Jamahiriya (457/91), Perera v Australia (536/93), KLBW v Australia (499/92), AS and LS v Australia (490/92), and Kurowski v Poland (872/99). Only Mr Pocar has ever dissented on this issue, in Aduayom v Togo (422/90). 6 At para 4. 7 Mr Wennergren dissented, finding that the HRC had no competence in international law to examine such complaints, regardless of any consent on behalf of the State Party. 8 See also Zwart, The Admissibility of Human Rights Petitions, 137–8. Cf eg Mukunto v Zambia (768/97), where certain allegations were inadmissible ratione temporis despite the State Party’s failure to raise the issue (para 6.3). 5

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[2.05] In Concluding Observations on Japan, the HRC stated:

9

¶22. The Committee notes with concern that the State party has still not accepted its responsibility for the ‘comfort women’ system during the Second World War, that perpetrators have not been prosecuted, that the compensation provided to victims is financed by private donations rather than public funds and is insufficient, that few history textbooks contain references to the ‘comfort women’ issue, and that some politicians and mass media continue to defame victims or to deny the events (arts. 7 and 8). The State party should accept legal responsibility and apologize unreservedly for the ‘comfort women’ system in a way that is acceptable to the majority of victims and restores their dignity, prosecute perpetrators who are still alive, take immediate and effective legislative and administrative measures to compensate adequately all survivors as a matter of right, educate students and the general public about the issue, and refute and sanction any attempt to defame victims or to deny the events.

These events clearly predate the entry into force of the ICCPR for Japan, except for the defaming of victims. Therefore, this recommendation arguably represents an overreach of the HRC’s competence. The same might be said for its criticism of Australia in failing to compensate victims of ‘the Stolen Generation policies’,10 and of Switzerland’s failure to provide compensation for forced sterilizations and castrations conducted from 1960 to 1987.11

Continuing Violations [2.06] As specified in Könye and Könye v Hungary (520/1992) [2.03] and other cases, there is an exception to the rule of ratione temporis, which is where the alleged violation is a ‘continuing violation’. The Committee can consider a communication concerning an alleged violation occurring before the date of entry into force of the OP, where the alleged violation continues or has effects which themselves constitute violations after that date. [2.07]

LOVELACE v CANADA (24/77)

In this case the author, Sandra Lovelace, married a non-Indian on 23 May 1970 and consequently lost her status as a Maliseet Indian under the Indian Act, approximately six years before entry into force of the OP in Canada. She challenged this circumstance as a breach of her minority rights under article 27. Although the State Party did not raise any objections in this respect to admissibility, the

9

(1998) UN doc CCPR/C/JPN/CO/5. Concluding Observations on Australia (2009) UN doc CCPR/C/AUS/CO/5, para 15. The Stolen Generation policies involved the systemic removal of Aboriginal children from their parents up to the early 1970s. Australia only became a party to the ICCPR in 1980. 11 Concluding Observations on Switzerland (2009) UN doc CCPR/C/CHE/CO/3, para 20. Switzerland only became a party to the ICCPR in 1992. 10

The ICCPR

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Committee ex officio examined whether it had competence ratione temporis to hear the communication. ¶7.3. In regard to the present communication, however, the Human Rights Committee must also take into account that the Covenant entered into force in respect of Canada on 19 August 1976, several years after the marriage of Mrs. Lovelace. She consequently lost her status as an Indian at a time when Canada was not bound by the Covenant. The Human Rights Committee has held that it is empowered to consider a communication when the measures complained of, although they occurred before the entry into force of the Covenant, continued to have effects which themselves constitute a violation of the Covenant after that date. It is therefore relevant for the Committee to know whether the marriage of Mrs. Lovelace in 1970 has had any such effects. ¶7.4. Since the author of the communication is ethnically an Indian, some persisting effects of her loss of legal status as an Indian may, as from the entry into force of the Covenant for Canada, amount to a violation of rights protected by the Covenant. The Human Rights Committee has been informed that persons in her situation are denied the right to live on an Indian reserve with resultant separation from the Indian community and members of their families. Such prohibition may affect rights which the Covenant guarantees in articles 12 (1), 17, 23 (1), 24 and 27. There may be other such effects of her loss of status. . . . ¶10. The Human Rights Committee, in the examination of the communication before it, has to proceed from the basic fact that Sandra Lovelace married a non Indian on 23 May 1970 and consequently lost her status as a Maliseet Indian under section 12 (1) (b) of the Indian Act. This provision was, and still is, based on a distinction de jure on the ground of sex. However, neither its application to her marriage as the cause of her loss of Indian status nor its effects could at that time amount to a violation of the Covenant, because this instrument did not come into force for Canada until 19 August 1976. Moreover, the Committee is not competent, as a rule, to examine allegations relating to events having taken place before the entry into force of the Covenant and the Optional Protocol. Therefore as regards Canada it can only consider alleged violations of human rights occurring on or after 19 August 1976. In the case of a particular individual claiming to be a victim of a violation, it cannot express its view on the law in the abstract, without regard to the date on which this law was applied to the alleged victim. In the case of Sandra Lovelace it follows that the Committee is not competent to express any view on the original cause of her loss of Indian status, i.e. the Indian Act as applied to her at the time of her marriage in 1970. ¶11. The Committee recognizes, however, that the situation may be different if the alleged violations, although relating to events occurring before 19 August 1976, continue, or have effects which themselves constitute violations, after that date. In examining the situation of Sandra Lovelace in this respect, the Committee must have regard to all relevant provisions of the Covenant. It has considered, in particular, the extent to which the general provisions in articles 2 and 3 as well as the rights in articles 12 (1), 17 (1), 23 (1), 24, 26 and 27, may be applicable to the facts of her present situation.

The Committee came to the conclusion that the communication was admissible ratione temporis:12 ¶13.1. The Committee considers that the essence of the present complaint concerns the continuing effect of the Indian Act, in denying Sandra Lovelace legal status as an Indian, in 12

On the merits decision, see [24.12].

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particular because she cannot for this reason claim a legal right to reside where she wishes to, on the Tobique Reserve. This fact persists after the entry into force of the Covenant, and its effects have to be examined, without regard to their original cause. . . .

[2.08]

JL v AUSTRALIA (491/92)

In this case the complainant was a solicitor who had not been willing to pay the annual fee required by the Law Institute of Victoria to renew his practising certificate. As a consequence the Law Institute refused to issue his practising certificate, but he continued to practise without the certificate. At the application of the Institute the Supreme Court fined the author, struck his name off the roll of barristers and solicitors, and ordered that he be imprisoned for contempt of court. The author complained to the Committee that he had been denied proceedings before an independent and impartial tribunal, contrary to article 14. He made the following comments regarding the issue of ratione temporis: ¶3.3. With respect to the date of entry into force of the Optional Protocol for Australia, it is claimed that the violation of article 14 of the Covenant has continuing effects, in that the author remains struck off the roll of solicitors of the Supreme Court, without any prospect of being reinstated. The Committee agreed with the author: ¶4.2. . . . As to the author’s contention that he was denied a fair and impartial hearing, the Committee notes that although the relevant court hearings took place before 25 December 1991, the effects of the decisions taken by the Supreme Court continue until the present time. Accordingly, complaints about violations of the author’s rights allegedly ensuing from these decisions are not in principle excluded ratione temporis.

However, the Committee found the case inadmissible for other reasons.13 [2.09] The Committee has found continuing violations, enabling communications to be found admissible ratione temporis, in numerous other cases, including Kulomin v Hungary (521/1991) (in the context of a period of pre-trial detention that began before the entry into force of the Optional Protocol for Hungary, but ended after that date) [11.56] and Gueye et al v France (196/1985) (in the context of continuing discrimination) [23.76]. In Paraga v Croatia (727/96), a breach of article 14(3)(c), the right to be tried without undue delay, was found in circumstances where the relevant trial began before entry into force of the Optional Protocol for Croatia, but continued many years after that date. [2.10]

GERASIMOV v KAZAKHSTAN (CAT 433/10)

This case concerned the analogous rule under the Convention against Torture. In an arguably lenient decision regarding ratione temporis, the CAT Committee stated: ¶11.2. The Committee notes that the State party contests the Committee’s competence ratione temporis on grounds that the torture complained of (27 March 2007) and the last 13 The communication was ultimately found to be incompatible with the provisions of the Covenant. See also MA v Italy (117/81), para 13.2.

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procedural decision of 1 February 2008 refusing to open a criminal case occurred before Kazakhstan made the declaration under article 22 of the Convention. The Committee recalls that a State party’s obligations under the Convention apply from the date of its entry into force for that State party. It can examine alleged violations of the Convention which occurred before a State party’s recognition of the Committee’s competence under article 22 if the effects of these violations continued after the declaration, and if the effects constitute in themselves a violation of the Convention. A continuing violation must be interpreted as an affirmation, after the formulation of the declaration, by act or by clear implication, of the previous violations of the State party. The Committee notes that Kazakhstan made the declaration under article 22 of the Convention on 21 February 2008. Although the events complained of occurred before, the DCECC decision of 1 February 2008 (refusal to open a criminal case against police officers) was upheld by the Regional Prosecutor’s Office on 19 March 2008, and the complainant’s further appeal to the Second Court of the Kostanai city was rejected on 25 March 2008, i.e., after Kazakhstan made the declaration under article 22. Furthermore, the General Prosecutor’s Office upheld the DCECC decision on 11 June 2008 by refusing to initiate a criminal investigation. Therefore, the State party’s failure to fulfil its obligations to investigate the complainant’s allegations and to provide him with redress continued after the State party recognized the Committee’s competence under article 22 of the Convention. In the circumstances, the Committee is not precluded ratione temporis from considering the present complaint.

Therefore, according to the CAT Committee, a continuing violation can arise purely from a procedural decision which confirms the effect of previous human rights violating behaviour. It is not certain that this standard is adopted by the HRC regarding the ICCPR. DISAPPEARANCES AND CONTINUING VIOLATIONS

[2.11]

SE v ARGENTINA (275/88)

The authors complained about the ‘disappearance’ of their relatives at the hands of State agents. These disappearances, and any consequent violations, were however found to have occurred before 1986, the date of entry into force of the OP for Argentina. The authors further claimed that the enactment of the Due Obedience Act of 1987, which commenced after entry into force of the OP for Argentina, itself violated a number of articles of the Covenant. The law effectively conferred impunity on military personnel for potentially gross violations of human rights. The Committee made the following comments regarding inadmissibility. ¶5.3. . . . The author has invoked article 2 of the Covenant and claimed a violation of the right to a remedy. In this contest the Committee recalls its prior jurisprudence that article 2 of the Covenant constitutes a general undertaking by States and cannot be invoked, in isolation, by individuals under the Optional Protocol (M.G.B. and S.P. v Trinidad and Tobago, communication No. 268/1987, para. 6.2, declared inadmissible on 3 November 1989). Bearing in mind that article 2 can only be invoked by individuals in conjunction with other articles of the Covenant, the Committee observes that article 2, paragraph 3 (a), of the Covenant stipulates that each State party undertakes ‘to ensure that any person whose rights or freedoms as violated shall have an effective remedy’ . . . Thus, under article 2 the right to a remedy arises only after a violation of a Covenant right has been established.

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However, the events which could have constituted violations of several articles of the Covenant and in respect of which remedies could have been invoked, occurred prior to the entry into force of the Covenant and of the Optional Protocol for Argentina. Therefore, the matter cannot be considered by the Committee, as this aspect of the communication is inadmissible ratione temporis. ¶5.4. The Committee finds it necessary to remind the State party that it is under obligation, in respect of violations occurring or continuing after the entry into force of the Covenant, thoroughly to investigate alleged violations and to provide remedies where applicable, for victims or their dependants.

Article 2(3) provides victims of ICCPR violations with a right to a remedy. However, as is confirmed in SE v Argentina, article 2(3) does not provide an autonomous right.14 One cannot claim a violation of article 2(3) unless it is accompanied by an arguable violation of a substantive Covenant right [25.08]. In this case, the author was precluded from claiming substantive rights violations, as any such violations occurred before entry into force of the OP for Argentina.15 [2.12]

CIFUENTES v CHILE (1536/06)

This communication concerned the disappearance of one José Alejandro Campos Cifuentes in 1981. His mother claimed that Chilean authorities had failed to properly investigate his disappearance, and had breached a variety of his rights. The Optional Protocol did not enter into force for Chile until August 1992. In ratifying it, Chile submitted a declaration to the effect that the HRC was not competent to examine events occurring prior to 11 March 1990. The operation of this declaration is curious, as it arguably extends the HRC’s competence by referring to a date that is earlier than the actual date at which it became bound by the Optional Protocol. In any case, the HRC majority agreed with Chile’s contention that the communication was inadmissible ratione temporis: ¶8.5. In the present case, the original act of deprivation of liberty and the subsequent refusal to give information about the whereabouts of the victim—both key elements of the offence or violation—occurred prior to the entry into force of the Optional Protocol for the State party, and even before 11 March 1990. In addition, the author makes no reference to any action by the State party after these dates that would constitute a perpetuation by the State party of the enforced disappearance of her son. Accordingly, the Committee considers that even though the Chilean courts, like the Committee, regard enforced disappearance as a continuing offence, the State party’s invocation of its declaration ratione temporis requires it to take account of that declaration. It is clear that the present case concerns events that occurred before the State party’s ratification of the Optional Protocol or that, in any event, began before 11 March 1990. It is therefore precisely covered by the State party’s declaration. In the light of the foregoing and in accordance with its jurisprudence, the Committee finds that the communication is inadmissible ratione temporis under article 1

14 See also RAVN v Argentina (343–345/88), Atkinson v Canada (573/94), para 8.2. See also [1.24]. 15 See also Inostroza et al v Chile (717/96), Vargas v Chile (718/96).

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of the Optional Protocol. The Committee does not deem it necessary, therefore, to address the question of the exhaustion of domestic remedies.

[2.13] A number of HRC members dissented on this point. Madame Chanet, Ms Majodina, and Mr Lallah first noted that the HRC majority had used the definition of ‘enforced disappearance’ found in various other treaties, such as the Rome Statute of the International Criminal Court and the International Convention for the Protection of All Persons from Enforced Disappearances. They went on: In basing the thrust of their reasoning on the constituent elements of a definition which is the creation of other international instruments, the majority in the Committee unfortunately failed to appreciate the fact that it is the provisions of the Covenant and its First Optional Protocol which the Committee has the mandate to apply. In this regard, the majority consequently failed to appreciate that the Committee must determine whether the State Party has or has not failed in fulfilling the obligations it has undertaken under the Covenant in relation to the violation of a number of the Covenant rights of the alleged victim. What are those rights in the light of the allegations of the author and, more importantly, what are the ever present and continuing obligations of the State in relation to the protection and safeguard of those rights? The Committee itself was of the view . . . that those rights and obligations relate to Article 2, paragraph 3 in conjunction with Articles 6, 7, 9, 10 and 16 . . . , including, we would suggest, Article 23 paragraph 1 . . . Thus, after a person is reported to have disappeared, the State continues to have an obligation under Article 2 paragraph 3 to conduct diligent and serious enquiries to determine what has happened to that person, what is his present status as a human being, is he dead or alive? (Article 16); if he is dead, the State has a continuing obligation to conduct effective and sustained investigations to determine who is responsible for his death or, if he is still alive, to take immediate steps to ensure that his life is not at risk (Article 6). The State also has a continuing obligation to ensure that he has not been or is not being subjected to torture or inhuman or degrading treatment (Articles 7 and 10) or to arbitrary detention or that he is not otherwise deprived of his liberty and security (Article 9). Similarly, the State has a continuing obligation to ensure that, in his capacity as member of a family as ‘the fundamental group unit of society’, he is given the protection which the State and society owe to him (Article 23 paragraph 1). In relation to those rights, the State is, furthermore, under a basic obligation (Article 2 paragraph 3 and paragraph 18 of General Comment 31) to ensure, in these circumstances, that the proceedings entered in 1998 or 2000 are diligent, vigorous and effective and that those eventually responsible, if any, are brought to justice to face the legal consequences of their action. As illustrated in the instances we have examined above, a disappearance, which the majority in the Committee appear to concede . . . , inherently has continuing effects on a number of Covenant rights. It has a continuing character because of the continuing violative impact which it inevitably has on Covenant rights. The continuity of this negative impact is irrespective of at what point in time the acts constituting the disappearance itself occurred. Inevitably the State Party’s obligations continue in relation to those rights. We conclude, therefore, that a communication complaining of continuing violations of the Covenant in relation to an alleged victim precludes the application of the ratione temporis exception and that the communication is not inadmissible on this ground.

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Ms Keller and Mr Salvioli also dissented. They first stressed that the HRC should adopt a liberal approach to admissibility: ¶9. It is the obligation of an international human rights body such as the Committee to interpret a covenant as broadly as possible when it is a matter of recognizing or guaranteeing rights or the international competence to exercise oversight and to interpret it as narrowly as possible when it is a matter of restricting rights or the international competence of oversight bodies. Consequently, in the absence of any of the circumstances mentioned in paragraph 7 of this dissenting opinion,16 the Committee should have found the communication to be admissible and should therefore have proceeded to consider the matter on its merits. . . .

They agreed with the substance of the opinion of Chanet et al, and added other potential continuing violations arising from an unresolved uninvestigated disappearance. ¶20. The practice of enforced disappearance has given rise to the formulation of new rights and their introduction, through evolutive interpretation, into these general instruments; the ‘right to truth’ is one example. Massive or systematic violations of fundamental human rights are an affront to the international community as a whole, generate erga omnes obligations and give rise to a duty to thoroughly investigate the relevant facts and events. The right to truth thus has two different facets: an individual aspect (with the right holders being the victims of such violations and their families) and a collective one (the community). Within the United Nations, both the social dimension of the right to truth and the individual’s right to truth have been fully recognized. The actual exercise of the right to truth is an important component of full reparation, but it is not in and of itself sufficient for that purpose. Revelation of the truth must be combined with the administration of justice in order to meet the requirements of contemporary international law for action against impunity. . . . ¶23. Where does the ‘right to truth’ figure in the Covenant? Clearly it arises in connection with the right to an effective remedy (art. 2, para. 3 (a)), read in conjunction with the general obligation to respect and to ensure to all individuals the rights recognized in the Covenant, without distinction of any kind (art. 2, para. 1). ¶24. Under the Covenant, the right to truth entails the right to obtain a clarification from the competent State bodies of the events constituting violation(s) and the persons responsible for them. Accordingly, the State must undertake an effective investigation of enforced disappearances in order to identify, prosecute and punish the perpetrators and instigators of such violations. . . . ¶26. In the light of the individual and social right to truth, the duty to investigate and try offences such as enforced disappearance has gradually been making the transition from being an obligation of means to being an obligation of result. A distinction should therefore be drawn among the different components of this State obligation. . . . ¶30. Another violation that may occur in this type of case, although it was not alleged in the communication submitted by Ms. Cifuentes Elgueta, is the one occasioned by the cruel or inhuman treatment experienced by a family member of someone who has disappeared as the result of an act or omission for which the State is responsible when the State withholds all information regarding the disappeared person’s fate. . . . 16 At para 7, Keller and Salvioli had simply pointed out the express grounds of inadmissibility outlined in the Optional Protocol, such as a failure to exhaust local remedies.

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¶31. In fact, the anguish suffered by someone with emotional ties to a disappeared person (e.g., a close relative, such as the person’s mother) who does not know the victim’s fate constitutes, in the absence of evidence to the contrary demonstrating a lack of genuine affection, a violation of article 7 of the Covenant. If the person has died, family members must be allowed to exercise their right to mourn the person so that they may try to continue on as best as they can under such tragic circumstances, and the State should guarantee them that right. ¶32. Given the complexity of cases of enforced disappearance, it is incumbent upon the Human Rights Committee to pay very close attention to the time when the possible human rights violations were committed in deciding whether or not it is competent to consider a case. It must be understood that there are instances in which the point in time when an act constituting an autonomous violation of the Covenant was committed may be subsequent to the time when the person was deprived of his or her liberty.

Similar majority and minority opinions were delivered in Yurich v Chile (1078/02). In these cases, the majority adopted the orthodox approach, exhibited in cases such as SE v Argentina (275/88) to the effect that an instance of disappearance which arose long before entry into force of the Optional Protocol for a State was inadmissible ratione temporis, in the absence of any acts of affirmation by the State which could give rise to continuing violations. The Chanet minority found that various continuing violations of ICCPR rights were potentially identifiable, many relating to the State Party’s failure to investigate the matter. This minority decision indicates that a complaint regarding a disappearance, if the matter remains unresolved, will never be inadmissible ratione temporis, if the disappearance arose within 12 (and perhaps more) years of entry into force of the Optional Protocol. The Chanet minority criticized the majority for focusing on the definition of an enforced disappearance from other treaties [1.98]. In doing so, the Chanet minority felt that the majority had failed to discharge its duty to investigate violations of the ICCPR. Keller and Salvioli adopted an even more radical approach than the Chanet minority in indicating that disappearances were so grave that any credible complaint regarding a disappearance should be admissible.17 THE ‘AFFIRMATION’ DOCTRINE

[2.14]

KÖNYE and KÖNYE v HUNGARY (520/92)

The authors’ property was expropriated by the State prior to the OP entering into force for Hungary in December 1988. The authors claimed that the State’s failure to compensate them represented a continuing violation of article 17, guaranteeing them rights of privacy within the family and the home.18 They also claimed the State’s rejection of the authors’ request for new compensation hearings after 1988 breached article 14, as this rejection had not taken place in a ‘public hearing’. The HRC disagreed, and stated the following on continuing violations:

17 18

On disappearances, see also [8.27]ff, [9.145], [10.22], [11.105], and [25.14]. See also Anton v Algeria (1424/05).

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¶6.4. . . . A continuing violation is to be interpreted as an affirmation, after the entry into force of the Optional Protocol, by act or by clear implication, of the previous violations of the State party.

[2.15] The majority’s test of ‘affirmation’ in Könye is unhelpful.19 The need for ‘affirmation’ indicates that admissibility is precluded where the continuing effects of a violation persist without any State exacerbation of those violations after entry into force of the OP. In that case, the Lovelace case [2.07] could also have been inadmissible ratione temporis. [2.16]

SANKARA ET AL v BURKINA FASO (1159/03)

This case concerned the killing of Thomas Sankara, the former President of Burkina Faso who died in 1987. While it was widely known that he was assassinated, a death certificate issued in 1988 falsely claimed that he died of natural causes. The communication was submitted by his wife and children, who had initiated proceedings in 1997 to try to hold Sankara’s killers accountable, which continued until 2001, when authorities decided that military courts rather than ordinary courts had jurisdiction in the matter. The Optional Protocol entered into force for Burkina Faso in 1999. The communication was submitted in 2003, while a request to authorities to initiate proceedings in the military courts was outstanding.20 The complaint regarding the actual death of Sankara was found to be inadmissible ratione temporis. However, another complaint was also made: ¶3.1. The authors consider that the failure to organize a public inquiry and legal proceedings to determine the identity and civil and criminal responsibilities of Thomas Sankara’s assassins, and also the failure to correct his death certificate, constitute a serious denial of justice in terms of their protection as members of the Sankara family . . .

The HRC found the above complaint to be admissible, despite protestations by the State that it too was inadmissible ratione temporis. ¶6.2. . . . Thomas Sankara’s death certificate of 17 January 1988, stating that he died of natural causes—contrary to the facts, which are public knowledge and confirmed by the State party . . . —and the authorities’ failure to correct the certificate during the period since that time must be considered in the light of their continuing effect on Ms. Sankara and her children. ¶6.3 A continuing violation is to be interpreted as an affirmation, after the entry into force of the Optional Protocol, by act or by clear implication, of previous violations by the State party. The Committee took note of the authors’ arguments concerning, first, the failure of the authorities to conduct an inquiry into the death of Thomas Sankara (which was public knowledge) and to prosecute those responsible—allegations which are not in fact challenged by the State party. These constitute violations of their rights and of the obligations of States under the Covenant. Secondly, it was clear that in order to remedy this situation, 19 See also PR Ghandhi, The Human Rights Committee and the Right of Individual Communication (Ashgate, 1998), 147–50. 20 Burkina Faso had argued that the communication was inadmissible for a failure to exhaust local remedies but that argument failed, as remedies were found to be unduly prolonged.

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the authors initiated judicial proceedings on 29 September 1997, i.e. within the limits of the 10-year statute of limitations, and these proceedings continued after the Covenant and the Optional Protocol entered into force for Burkina Faso . . . the Committee considered that the proceedings were prolonged. . . . Consequently, insofar as, according to the information provided by the authors, the alleged violations resulting from the failure to conduct an inquiry and prosecute the guilty parties have affected them since the entry into force of the Covenant and the Optional Protocol because the proceedings have not concluded to date, the Committee considered that this part of the communication was admissible ratione temporis.

[2.17] The impugned acts in the above cases where continuing violations were not found (ie the alleged torture and killing in SE v Argentina (275/88) [2.11] and Cifuentes v Chile [2.12], and the expropriation in Könye and Könye v Hungary (520/92)) [2.14] were wholly completed prior to the OP entering into force for the relevant State. In contrast, the banishment of Sandra Lovelace from her tribe in Lovelace v Canada (24/77) [2.07], the pre-trial detention of the author in Kulomin v Hungary (521/91) [2.09],21 the investigatory proceedings in Sankara v Burkina Faso [2.16], and the discriminatory treatment in Gueye et al v France (196/85) [2.09]22 were not completed prior to the date of entry into force of the OP for the relevant State. In Blaga v Romania (1158/03), the impugned expropriation had taken place prior to the Optional Protocol entering into force for Romania. However, the expropriation was confirmed by a court decision which took place after that date, so the communication was not inadmissible ratione temporis. Nevertheless, the distinctions between decisions which fall on either side of ‘the continuing violations’ test are not always easy to draw. [2.18]

KUROWSKI v POLAND (872/99)

The author alleged a violation of article 25 entailed in his dismissal from the public service due to alleged political persecution. The dismissal took place before Poland’s ratification of the OP, but municipal proceedings in respect of that dismissal, which were unsuccessful, were instigated by the author after the OP came into force. The HRC found the complaint inadmissible ratione temporis: ¶6.5. In the present case, the author was dismissed from his post in 1990, under the law in force at the time, and the same year he presented himself as a candidate, without success, before one of the regional qualifying commissions in order to determine whether he satisfied the new statutory criteria for employment in the restructured Ministry of Internal Affairs. The fact that he did not win his case during the proceedings which he initiated in 1995, after the Optional Protocol came into force, does not in itself constitute a potential violation of the Covenant. The Committee is unable to conclude that a violation occurred prior to the entry into force of the Optional Protocol for the State party and continued thereafter. Consequently, the Committee declares the communication inadmissible ratione temporis, in accordance with article 1 of the Optional Protocol.

21

See also [11.56].

22

See also [23.76].

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[2.19] The distinction between the striking off the role of the solicitor in JL v Australia (491/92) [2.08] (where there was a continuing violation) and the dismissal of the public servant in Kurowski is hard to comprehend. However, ‘striking off’ is an act which continues to deny a person access to their livelihood, whereas dismissal from one public service job does not preclude a person from seeking another public service job, so it may be that the distinction lies in the determination of when the impugned act was ‘completed’. While a distinction might be perceptible between Kurowski and JL, it is difficult to perceive a distinction between Kurowski and the following case. [2.20]

ADUAYOM et al v TOGO (422/90)

One aspect of this case concerned the authors’ dismissal from the civil service for reasons of political persecution in 1985, prior to entry into force of the OP for Togo in 1988. The authors were reinstated in 1991. The HRC found this aspect of the case admissible: ¶6.2. . . . [The HRC] noted that the alleged violations had continuing effects after the entry into force of the Optional Protocol for Togo, in that the authors were denied reinstatement in their posts until 27 May and 1 July 1991 respectively, and that no payment of salary arrears or other forms of compensation had been effected. The Committee considered that these continuing effects could be seen as an affirmation of the previous violations allegedly committed by the State party. It therefore concluded that it was not precluded ratione temporis from examining the communications and considered that they might raise issues under articles . . . 19; and 25(c), of the Covenant.

It is not clear why the State’s refusal to reinstate the authors in Aduayom after the date of entry into force of the OP (‘the relevant date’) is relevantly distinguishable from the failure by the State’s courts to compensate or reinstate the author in Kurowski after the relevant date. It may have been that the alleged political persecution in Aduayom was clearer. However, the perceived merits of a complaint should have no bearing at all on whether a communication is deemed inadmissible ratione temporis. [2.21] In Kang v Republic of Korea (878/99), the author complained, inter alia, of a conviction for espionage that allegedly breached his right of political expression under article 19. The conviction predated the entry into force of the OP for the State Party. However, his imprisonment pursuant to that conviction continued after that date. The HRC confirmed that ‘in such circumstances, a term of imprisonment, without the involvement of additional factors, does not amount per se to a “continuing violation”, in violation of the Covenant, sufficient to bring the original circumstances giving rise to the imprisonment within the Committee’s jurisdiction ratione temporis’.23 [2.22] The CEDAW Committee seems to take a more liberal approach to the issue of continuing violations. Szijjarto v Hungary (CEDAW 4/04) concerned the 23

At para 6.3. See also Zhurin v Russia (851/99).

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sterilization of a woman against her consent, which was found to breach several provisions of CEDAW. The communication was deemed to be admissible even though the sterilization took place before the Optional Protocol for CEDAW entered into force for Hungary. The CEDAW Committee stated: ¶10.4. In accordance with article 4, paragraph 2 (e), of the Optional Protocol, the Committee shall declare a communication inadmissible where the facts that are the subject of the communication occurred prior to the entry into force of the Optional Protocol for the State party concerned unless those facts continued after that date. In considering this provision, the Committee notes that the incident which has given rise to the communication occurred on 2 January 2001. This date preceded the entry into force of the Optional Protocol for Hungary 22 March 2001. However, the author has called upon the Committee to determine whether a number of her rights under the Convention have been and continue to be violated as a result of the sterilization surgery. It has been put forward convincingly that sterilization should be viewed as permanent, in particular: sterilization is intended to be irreversible; the success rate of surgery to reverse sterilization is low and depends on many factors, such as how the sterilization was carried out, how much damage was done to the fallopian tubes or other reproductive organs and the skills of the surgeon; there are risks associated with reversal surgery; and an increased likelihood of ectopic pregnancy following such surgery. The Committee thus considers the facts that are the subject of the communication to be of a continuous nature and that admissibility ratione temporis is thereby justified.

The effects of the sterilization were deemed to be continuing as the woman involved would suffer from the effects for the rest of her life, or at least her potential child-bearing life. Therefore, the CEDAW Committee found the communication to be admissible.

Conclusion [2.23] The ratione temporis rule applies so as to preclude admissibility of cases where the impugned events occurred before entry into force of the OP for the relevant State Party. However, when a violation has begun before that date and continues after that date, or where effects which of themselves constitute violations continue after that date, the complaint will not be precluded from admissibility by application of this rule. Unfortunately, the line between continuing and non-continuing violations is not always clear.

3 The ‘Victim’ Requirement • The ‘Victim’ Requirement for Optional Protocol Admissibility . . . . . . . [3.01] • Victim must be an Individual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [3.10] • Collective Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [3.11] • Non-governmental Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . [3.14] • Political Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [3.16] • Corporations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [3.17] • Partnerships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [3.21] • Religious Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [3.22] • Standing for Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [3.24] • Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [3.26] • Victim is Unable to Authorize the Communication Personally . . . . . . [3.29] • Representation of Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [3.33] • Victim is Represented by Successors. . . . . . . . . . . . . . . . . . . . . . . . . . [3.36] • Unborn Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [3.37] • Future Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [3.38] • Future Victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [3.38] • Reasonable Foreseeability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [3.39] • Legislation may Violate the ICCPR in the Absence of Enforcement . . . [3.46] • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [3.49]

The ‘Victim’ Requirement for Optional Protocol Admissibility [3.01] Article 1 of the Optional Protocol (OP) states that petitions must be submitted by individuals who believe themselves to be victims of a breach of the ICCPR. In the Mauritian Women’s Case (35/78), the Committee made the following oft-quoted statement: ¶9.2. . . . A person can only claim to be a victim in the sense of article 1 of the Optional Protocol if he or she is actually affected. It is a matter of degree how concretely this requirement should be taken. However, no individual can in the abstract, by way of an actio popularis, challenge a law or practice claimed to be contrary to the Covenant. . . .

Therefore, a petitioner may claim to be a victim only if he or she is personally affected by the act or omission which is at issue. The Committee will dismiss the communication as inadmissible if the petitioner cannot show this victim status. Exceptionally, a third party may submit the communication on behalf of a victim [3.26]. However, a victim must always be involved in the communication, as illustrated in the following case. [3.02]

POONGAVANAM v MAURITIUS (567/93)

The author in this case was convicted of murder and sentenced to death in the Assizes Court of Mauritius. He was tried before a judge and a jury of nine men,

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whose verdict was unanimous. He challenged the Jury Act as incompatible with the Covenant. His arguments were as follows: ¶3.2. The author claims that Section 42 of the Courts Act, which provides for a jury ‘consisting of nine men qualified as provided in the Jury Act’ violates article 3 of the Covenant, as it is discriminatory vis-à-vis women, who remain in practice excluded from jury service. ¶3.3. It is further submitted that article 25(c) of the Covenant was violated, as Mauritian women did not and in practice do not have access, on general terms of equality, to public service, service in a trial jury being interpreted as constituting public service. ¶3.4. The author contends that the State party violated article 26 of the Covenant, as the exclusion of women from jury service in fact means that their equality before the law is not guaranteed.

The Committee held that the author’s claim was inadmissible: ¶4.2. The Committee has noted the author’s claim that he is a victim of violations by Mauritius of articles 3, 25(c) and 26, because women were excluded from jury service at the time of his trial. The author has failed to show, however, how the absence of women on the jury actually prejudiced the enjoyment of his rights under the Covenant. Therefore, he cannot claim to be a ‘victim’ within the meaning of article 1 of the Optional Protocol.

[3.03] In Morrison v Jamaica (663/95), the author, a prisoner in Jamaica, found the correspondence of fellow prisoners dumped in an abandoned cell, which would indicate that his own correspondence had been similarly discarded before proper delivery. The Human Rights Committee (HRC), however, found the author had no claim in this respect, as there was no evidence that he had found ‘letters or documents addressed by or to himself’.1 [3.04] In Van Duzen v Canada (50/79), the HRC found against the author on the merits, on the basis that post-admissibility developments had remedied his grievance. However, one does not necessarily have to remain a ‘victim’ throughout the entire period of deliberation of one’s complaint. The Van Duzen facts were exceptional, as the author could not even claim that his rights were ever violated.2 By comparison, the author in A v Australia (560/93) could claim to be a relevant ‘victim’ of article 9, even though he had been released by the time the HRC delivered its merits decision.3 ‘A’ was nevertheless entitled to compensation for his arbitrary detention. [3.05]

TADMAN v CANADA (816/98)

This case manifested an interesting disagreement within the HRC over the ‘victim’ requirement. The authors, persons of non-Catholic faiths, complained that Roman Catholic schools were the only non-secular schools in Canada that received public funding. A complaint about the same issue from a Jewish parent who sent his children to private Jewish schools was upheld as a breach of article At para 6.7. See also Brandsma v Netherlands (977/01), para 6.4. See also [15.15]. 3 See discussion of A v Australia (560/93) at [11.24], [11.85], and [11.91]. 1 2

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26 in Waldman v Canada [23.60]. However, the Tadman authors were held not to be victims, as their children went to public secular schools, which were publicly funded just like private Catholic schools. The HRC upheld the State’s argument for inadmissibility: ¶6.2. The State party has challenged the admissibility of the communication on the basis that the authors cannot claim to be victims of a violation of the Covenant. In this context, the Committee notes that the authors while claiming to be victims of discrimination, do not seek publicly funded religious schools for their children, but on the contrary seek the removal of the public funding to Roman Catholic separate schools. Thus, if this were to happen, the authors’ personal situation in respect of funding for religious education would not be improved. The authors have not sufficiently substantiated how the public funding given to the Roman Catholic separate schools at present causes them any disadvantage or affects them adversely. In the circumstances, the Committee considers that they cannot claim to be victims of the alleged discrimination, within the meaning of article 1 of the Optional Protocol.

In dissent, a minority of Mrs Evatt, Mrs Medina Quiroga, and Messrs Bhagwati and Henkin stated: Parents who desire religious education for their children and are not provided with it within the school system and who have to meet the cost of such education themselves may also be considered as victims. The applicants in this case include such persons, and the claims of at least those persons should, in my view, be considered admissible [emphasis added].

The case demonstrates the strictness of the victim requirement. The parents were required actually to enrol their children in a non-Catholic religious school prior to being accorded ‘victim’ status, notwithstanding the prohibitive cost of such a move. The minority opinion in Tadman is to be preferred as it takes account of the financial difficulties entailed in such an enrolment. [3.06] SB v Kyrgysztan (1877/09) was deemed inadmissible as an actio popularis regarding access to information. The author was deemed not to have demonstrated a personal interest in the information. However, it is arguable that he did have a personal interest, manifested in the simple fact that he requested it from the State and had not received it [18.24]. That refusal arguably rendered him a victim at least for the purposes of admissibility. In any case, the later decision in Toktakunov v Kyrgyzstan (1470/06) renders the SB decision indefensible [18.25], as an author in a very similar situation to the author in SB was found to have a sufficient interest to ground an admissible complaint. [3.07] Under article 3 of the Optional Protocol, anonymous submissions are deemed to be inadmissible. El Abani v Libyan Arab Jamahiriya (1640/07) seems to be a case where the majority of the HRC failed to implement this rule with regard to a number of the complainants. Anonymity may be distinguished from the suppression of public disclosure of a complainant’s identity, which is quite common in Optional Protocol complaints. [3.08] In Hill and Hill v Spain (526/93), the HRC confirmed that one may bring an OP case even if one’s own behaviour is tainted. The fact that the authors had

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fled Spain, in breach of Spanish bail conditions, did not affect their standing to bring an OP complaint.4 Similarly, the author’s status as a fugitive did not preclude admissibility in Gomez Vazquez v Spain (701/96). Kaba v Canada (1465/06) concerned a complaint about Canada’s refusal to grant asylum to the author and her daughter [9.62]. Canada submitted that the complaint should be dismissed as an abuse of process as the author had forged some documents in her claims at the domestic level. The HRC did not do so, mainly because the communication raised serious issues regarding the rights of the daughter, who was blameless. [3.09]

LAING v AUSTRALIA (901/99)

The case concerned family rights. The author had abducted her daughter from the United States and lived in Australia. The father had obtained a US court order awarding him sole custody of the daughter. The Family Court of Australia subsequently ordered that the daughter be returned to the father in the United States. In finding the case to be inadmissible, the HRC was clearly influenced by the behaviour of the mother: ¶7.4. As to the alleged violations of the author’s own rights, the Committee notes that the present situation, including its possible adverse effect on the enjoyment of Covenant rights by the author, is a result of her own decision to abduct her daughter Jessica in early 1995 from the United States to Australia and of her subsequent refusal to allow for the implementation of the Hague Convention for the purpose of letting the competent courts to decide about the parents’ custody and access rights in respect of Jessica. In the light of these considerations, the Committee finds that this part of the communication has not been substantiated, for purposes of admissibility and is, consequently, inadmissible pursuant to article 2 of the Optional Protocol.

Victim must be an Individual [3.10] The victim must be an individual. GENERAL COMMENT 31 ¶9. The beneficiaries of the rights recognized by the Covenant are individuals. Although, with the exception of article 1, the Covenant does not mention the rights of legal persons or similar entities or collectivities, many of the rights recognized by the Covenant, such as the freedom to manifest one’s religion or belief (article 18), the freedom of association (article 22) or the rights of members of minorities (article 27), may be enjoyed in community with others. The fact that the competence of the Committee to receive and consider communications is restricted to those submitted by or on behalf of individuals (article 1 of the Optional Protocol) does not prevent such individuals from claiming that actions or omissions that concern legal persons and similar entities amount to a violation of their own rights. ¶10. . . . the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as 4

At para 12.1. See also Gómez Vazquez v Spain (701/96), para 10.3.

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asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. . . . COLLECTIVE RIGHTS

[3.11] In Ominayak, Chief of the Lubicon Lake Band v Canada (167/84) the Committee stated: ¶32.1. . . . The Optional Protocol provides a procedure under which individuals can claim their individual rights have been violated. These rights are set out in part III of the Covenant, articles 6 to 27, inclusive. There is, however, no objection to a group of individuals, who claim to be similarly affected, collectively to submit a communication about alleged breaches of their rights.

[3.12] It should be noted that the right to self-determination found in article 1 of the ICCPR is in an anomalous position as it is a people’s right and thus it is not a right that is justiciable under the OP.5 [3.13] In EW et al v The Netherlands (429/90) the Committee noted, with regard to 6,588 authors, that: ¶6.3. The Committee has considered the claim of the State party that the communication is in fact an actio popularis. The Committee notes that, provided each of the authors is a victim within the meaning of article 1 of the Optional Protocol, nothing precludes large numbers of persons from bringing a case under the Optional Protocol. The mere fact of large numbers of petitioners does not render their communication an actio popularis, and the Committee finds that the communication does not fail on this ground.

Therefore, when there are a number of victims with the same complaint, the victims can group their cases together into the one case. NON-GOVERNMENTAL ORGANIZATIONS

[3.14]

HARTIKAINEN v FINLAND (40/78)

The author of the communication was a Finnish school teacher who submitted the communication on his own behalf and also in his capacity as General Secretary of the Union of Free Thinkers in Finland. The Committee made the following comments in regard to the author’s attempt to represent an organization: ¶3. On 27 October 1978, the Committee on Human Rights decided: . . . to inform the author that it could not consider the communication in so far as it had been submitted by him in his capacity as General Secretary of the Union of Free Thinkers in Finland, unless he furnished the names and addresses of the persons he claimed to represent together with information as to his authority for acting on their behalf. ¶4. In December 1978 and January 1979, the author submitted the signatures and other details of 56 individuals authorising him to act on their behalf as alleged victims.

5

See [7.24].

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Hence, non-governmental organizations (NGOs) have no standing to submit cases on their own behalf.6 The Committee will, however, allow NGOs to assist authors in their communications, as they did, for example, in Hertzberg et al v Finland (61/79) and Inostroza et al v Chile (717/96). [3.15]

BEYDON v FRANCE (1400/05)

The complainants were members of an NGO called ‘DIH’, who brought the complaint in their capacities as individuals rather than as DIH. In part, the complaint concerned an allegation of a breach of article 14(1), the right to a fair hearing, in conjunction with the right to an effective remedy in article 2(3)(c). That claim was found to be inadmissible for the following reasons: ¶4.3. . . . The Committee recalls that for a person to claim to be a victim of a violation of a right protected by the Covenant, he or she must show either that an act or an omission of a State party has already adversely affected his or her enjoyment of such right, or that such an effect is imminent, for example on the basis of existing law and/or judicial or administrative decision or practice. It notes that it was not the authors, but DIH, an association with legal personality under French law, that was party to the domestic proceedings. Thus, the Committee finds that the authors were not victims, within the meaning of article 1 of the Optional Protocol, of the alleged violation of article 2, paragraph 3 (c), in conjunction with article 14, paragraph 1, of the Covenant. POLITICAL PARTIES

[3.16] In JRT and the WG Party v Canada (104/81) the communication was submitted by a Canadian citizen and by the WG Party, an unincorporated political party. The Committee held that: ¶8(a). . . . the W.G. Party was an association and not an individual and as such cannot submit a communication to the Committee under the Optional Protocol. Therefore the communication is inadmissible under article 1 of the Optional Protocol in so far as it concerns the W.G. Party. CORPORATIONS

[3.17] In A Newspaper Publishing Co v Trinidad and Tobago (360/89), A Publication and Printing Co v Trinidad and Tobago (361/89), and (in part) Crochet v France (1777/08), complaints were submitted on behalf of corporations. They were deemed inadmissible as corporations have no standing before the Committee. [3.18] In the following case, it was alleged that the violations of the company’s rights constituted simultaneous violations of the rights of individuals, such as the shareholders. LAMAGNA v AUSTRALIA (737/97) The author, along with her husband, owned a nursing home through a company, Lamagna Enterprises Pty Ltd. The company received statutory subsidies from 6

See also Coordinamento v Italy (163/84).

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the government. Lamagna Enterprises initiated domestic proceedings in Australia concerning the withholding of some of those subsidies. The claim before the HRC concerned the right to a fair hearing under article 14(1). The HRC found the claim to be inadmissible: ¶6.2. The Committee notes the State party’s contention that the communication should be declared in inadmissible ratione personae. In this respect, it notes that the author has submitted the communication claiming to be a victim of a violation of her rights under the Covenant, to be treated justly and fairly, because a governmental department denied her information which it later used against her. However, the author who purchased the nursing [home] as an enterprise is essentially claiming before the Committee violations of the rights of her company, which has its own legal personality. All domestic remedies referred to in the present case were in fact brought before the Courts in the name of the company, and not of the author, furthermore the author has not substantiated that her rights under the Covenant have been violated. Under article 1 of the Optional Protocol only individuals may submit a communication to the Human Rights Committee. The Committee considers that the author, by claiming violations of her company’s rights, which are not protected by the Covenant has no standing within the meaning of article 1, of the Optional Protocol, in respect of the complaint related to her company and that no claim related to the author personally has been substantiated for purposes of article 2 of the Optional Protocol.

The reasoning in Lamagna follows that in the previous case of SM v Barbados (502/92) and also, with regard to NGOs, Beydon v France (1400/05) [3.15]. Those cases may be contrasted with the following case. [3.19]

SINGER v CANADA (455/91)

Allan Singer operated a stationery and printing business and had a clientele that was predominantly English speaking. He brought a complaint about Quebec laws that prohibited outdoor advertising in a language other than French.7 The State Party challenged the standing of the author to bring the complaint, noting that the real victim was the author’s company, ‘Allan Singer Ltd’.8 The Committee nevertheless found the complaint admissible in the following terms: ¶11.2. The State party has contended that the author is claiming violations of rights of his company, and that a company has no standing under article 1 of the Optional Protocol. The Committee notes that the Covenant rights which are at issue in the present communication, and in particular the right of freedom of expression, are by their nature inalienably linked to the person. The author has the freedom to impart information concerning his business in the language of his choice. The Committee therefore considers that the author himself, and not only his company, has been personally affected by the contested provisions of Bills Nos. 101 and 178.

[3.20] In Singer, the restriction of the rights of commercial expression of Singer’s company naturally impacted on Singer’s own rights to freedom of expression.9 It 7 See [18.39] for discussion of the merits of the similar case of Ballantyne et al v Canada (359, 385/89). 8 At para 8.1. 9 This finding would be of particular importance to newspaper editors and journalists.

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may be that in many instances a violation against a corporation would also entail a violation of the rights of its shareholders or employees, who are of course able to bring a complaint on their own behalf. However, the HRC’s assertion that ‘freedom of expression’ is ‘inalienably linked to the person’ may go too far in implying that restriction on corporate expression may always be characterized as a restriction of an individual’s expression. It must be noted that Singer’s company was a small family business. Suppose a law restricted the rights of a large publicly-listed company, whose shareholders had no real influence on the running of its business, to make political donations in order to try to influence elections. Could it realistically be said that such a law restricted the freedom of expression of those shareholders, or employees, or even the directors?10 PARTNERSHIPS

[3.21]

WALLMAN v AUSTRIA (1002/01)

In this case, the author’s limited partnership, Hotel zum Hirschen Josef Wallmann, was required by law to join Austria’s Chamber of Commerce and pay associated membership fees. The author claimed that the law breached her rights to freedom of association [19.34]. Regarding the fact that the obligation was imposed directly on the hotel rather than the author, the HRC stated: ¶8.9. [The HRC] notes that the ‘Hotel zum Hirschen Josef Wallmann KG’, being a limited partnership, has no legal personality under Austrian law. Notwithstanding the fact that [it] has, and availed itself of its, capacity to take part in domestic court proceedings, the second author [Mrs Wallman],11 who holds 100 percent of the shares of the limited partnership, is, in her capacity as partner, liable for [the partnership’s] obligations vis-à-vis its creditors. The Committee therefore considers that the second author is directly and personally affected by the [partnership’s] compulsory membership in the Chamber and the resulting annual membership fees, and that she can therefore claim to be a victim of a violation of article 22 of the Covenant.

The admissibility of the complaint in Wallman was facilitated by the fact that the entity concerned was a partnership rather than a corporation. As such, the author, as a 100 per cent partner, bore direct legal responsibility for its debts. It seems doubtful that the case would have been admissible had the entity been a limited liability company for which the author had no direct liability. RELIGIOUS ORGANIZATIONS

VS v BELARUS (1749/08) [3.22] The communication concerned a refusal by the State’s Supreme Court to allow an appeal from the Consistory of the Religious Union Evangelical Lutheran See Citizens United v Federal Election Commission, 130 S Ct 876 (2010). The case was brought by Mrs Wallman and her husband, who was listed as the first author. The case was also submitted on behalf of a third author, the partnership itself. That claim was of course inadmissible (para 8.13). 10 11

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Church, of which the author was a secretary, in alleged contravention. The communication was found to be inadmissible, for reasons which were very similar to those in SM v Barbados and Lamagna v Australia [3.18], in that the fair trial rights were found to be those of the Religious Union rather than the author himself.12 The author also claimed that his personal religious rights were infringed under article 18(1) as the State had issued the Religious Union with a warning regarding its failure to comply with its laws on religious organizations, and had refused the Religious Union permission to invite nine religious visitors to the country. The HRC also found that complaint to be inadmissible in the following terms: ¶7.5. In this respect, the Committee recalls that a person can only claim to be a victim in the sense of article 1 of the Optional Protocol if he or she is actually affected. It is a matter of degree how concretely this requirement should be taken. It is true that, in some circumstances, restrictions imposed on the religious organizations as juridical persons may produce adverse effects which directly violate the rights of individual believers under the Covenant. In the present case, however, the author of the communication has failed, for example, to explain what concrete consequences for his own freedom to manifest his religion or belief in practice were entailed by the inability of nine members of the ‘City of His Grace Mission Inc.’ to visit Belarus. Accordingly, the Committee concludes that the author has not substantiated, for purposes of admissibility, that he has a claim under article 18, paragraph 1, of the Covenant. This part of the communication is therefore inadmissible under article 2 of the Optional Protocol.

[3.23] In Singer, the right to freedom of expression in article 19 was found to be ‘inalienably linked to the person’ [3.20], whereas similar reasoning was not applied to article 18 in VS. The difference may lie in the fact that the author in VS simply failed to adequately spell out the consequences of the relevant warning to members of the relevant religious organization, and had also failed to explain how the ban on the visit of the nine people interfered with his own freedom of religion.13

Standing for Third Parties [3.24] Ordinarily, victims are obliged to bring an OP complaint themselves. For example, in Fei v Colombia (514/92), the author alleged that there had been a violation of article 24, entailed in her children’s presumed right to acquire Italian nationality and their right to equal access to both parents.14 The HRC held this part of the complaint to be inadmissible because ‘this violation would have had to be claimed on behalf of the author’s children, in whose name the communication had not been submitted’.15

12

See para 7.3. Compare Malakhovsky and Pikul v Belarus (1207/03) [17.33] and Sister Immaculate Joseph v Sri Lanka (1249/04) [17.22]. 14 15 On this case, see [20.65]. At para 5.2. 13

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[3.25] There are, however, some exceptions to the basic principle that only the victims themselves can bring a claim. There are a number of situations in which the Committee will permit a third party to submit a communication. First, the victim may appoint a representative to conduct the communication on his/her behalf. Secondly, a third party may submit the communication when the alleged victim is unable to submit the communication. Thirdly, if the author of the communication dies during the proceedings, the author’s heirs may continue the case on his/her behalf.16 REPRESENTATION

[3.26] Rule 96(b) of the Committee’s rules of procedure allows for the possibility of calling a representative to act on the victim’s behalf in a communication. In essence the representative acts like an attorney for the victim, and in most cases these representatives have been legal counsel. Written evidence of a representative’s authority to act for an alleged victim, such as a power of attorney, must be submitted to the Committee. [3.27]

Y v AUSTRALIA (772/97)

This complaint was submitted by two lawyers on purported behalf of an asylum-seeker detained on arrival in Australia, and eventually deported. The State Party responded that the lawyers had no authority to represent the alleged victim. ¶6.2. The State party has challenged the admissibility of the communication on the grounds that it was not submitted by the victim of the alleged violations of the Covenant. The Committee notes that the lawyer who submitted the communication did not represent Mr. Y in the proceedings before the domestic courts nor has he produced a power of attorney in writing to act on Mr. Y’s behalf. As to the telephone conversation between counsel and Mr. Y (a transcript of which has been provided to the Committee), it transpires that counsel told Mr. Y that he wished to address a question of principle to the Human Rights Committee (whether the State party has an obligation to inform unlawful entrants into Australia of their right to consult a lawyer) and asked whether Mr. Y would agree to counsel submitting a communication in Mr. Y’s name in order to test this question. According to the transcript, counsel made it clear that the said communication would not affect Mr. Y himself (for the good or bad) and all Mr. Y said was that he had no objection to counsel submitting such a communication. Although 24 days elapsed between the said telephone conversation and Mr. Y’s deportation counsel never received instructions from Mr. Y as to the subject matter of the communication. Counsel has lost contact with Mr. Y since the latter’s deportation from Australia. ¶6.3. The Committee has always taken a wide view of the right of alleged victims to be represented by counsel in submitting communications under the Optional Protocol. However, counsel acting on behalf of victims of alleged violations must show that they have real authorization from the victims (or their immediate family) to act on their behalf, that there were circumstances which prevented counsel from receiving such authorization, or that 16

T Zwart, The Admissibility of Human Rights Petitions (Martinus Nijhoff, 1994), 71.

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given the close relationship in the past between counsel and the alleged victim it is fair to assume that the victim did indeed authorize counsel to proceed with a communication to the Human Rights Committee. The Committee is of the opinion that in the present case counsel has failed to show that any of these conditions apply. The Committee is therefore of the opinion that counsel has not shown that he may act on behalf of Mr. Y in submitting this communication. The communication does not meet the requirement of article 1 of the Optional Protocol that a communication be submitted by a victim of an alleged violation. The Committee therefore holds it to be inadmissible.17

[3.28] In Gómez Vazquez v Spain (701/96), the HRC noted that, beyond written authorization from the victim, there were no specific formal requirements for establishing a third party’s authority to act for a victim under the OP procedure.18 VICTIM IS UNABLE TO AUTHORIZE THE COMMUNICATION PERSONALLY

[3.29] There may be circumstances where it is impossible for the victim personally to authorize the communication, for example where the victim has been killed, or has disappeared, or is being held incommunicado. In such cases, the Committee requires a sufficient link to exist between the author and the victim. It must appear likely that the alleged victim would consent to submission of the complaint by the representative.19 [3.30] The HRC has confirmed that a close family connection will be a sufficient link to justify an author acting on behalf of an alleged victim.20 ‘Close family members’ have included persons beyond the nuclear family, such as aunts, uncles, nephews, nieces, and cousins.21 The HRC has been less inclined to allow submission by representatives outside the victim’s family.22 For example, in Mbenge v Zaire (16/77), the HRC found that the author could represent his relatives, but not his driver or his pharmacist.23 In Isaev and Karimov v Uzbekistan (1163/03), the author was allowed to submit a communication on behalf of her son, but not his friend and co-defendant. [3.31] Once the alleged victim is in a position to communicate directly with the Committee, he/she must confirm an intention to pursue the complaint or the communication will be declared inadmissible. For example, in Mpandanjila v Zaire (138/83), the original complaint was submitted on behalf of 13 people allegedly detained incommunicado. The 13 were subsequently released and thus in a position to communicate with the Committee. Four of the original 13 victims were

17 See also Solís Palma v Panama (436/90), AD v Canada (78/80), R and MH v Italy (565/93), and the decision of the Committee Against Torture in Barakat v Tunisia (CAT 14/94). 18 At para 10.4. 19 Zwart, The Admissibility of Human Rights Petitions, 76. 20 Zwart, The Admissibility of Human Rights Petitions, 76. 21 Zwart, The Admissibility of Human Rights Petitions, 76. 22 M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005), 836. 23 At para 5(d).

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subsequently dropped as parties to the communication owing to their failure to confirm their intention to continue with the complaint. [3.32] The UN treaty bodies will not readily assume that an alleged victim is unable to authorize a communication, as demonstrated in the following CAT case. JHA v SPAIN (CAT 323/07) Here, the CAT Committee was presented with a complaint on behalf of offshore asylum-seekers by an NGO. The asylum-seekers, who were detained by Spanish authorities in Mauritania [4.15], had not authorized the communication. The CAT Committee, in enforcing analogous standing rules to the HRC, stated: . . . In the present case, the alleged victims should have expressly authorized the complainant to approach the Committee on their behalf, unless it was impossible for them to do so, given their situation. The Committee observes that during their detention in Nouadhibou [in Mauritania] the alleged victims were interviewed by representatives of UNHCR, IOM and the non-governmental organization Médecins du Monde. It likewise observes that, with the authorization of the alleged victims, the Spanish Commission for Refugee Assistance applied for a remedy at the domestic level relating to the same events. Thus, the information before the Committee does not permit the Committee to conclude that it would not have been possible at any time to reach the alleged victims in order to obtain their consent to be represented before the Committee, particularly when application for a domestic remedy had already been made in connection with their situation. Nor can it be concluded that alleging a lack of financial resources exempts the complainant from obtaining the consent of the alleged victims who were subsequently moved to Melilla to act on their behalf. In such circumstances, the Committee considers that the complainant lacks competence to act on behalf of the alleged victims in accordance with article 22, paragraph 1, of the Convention. REPRESENTATION OF CHILDREN

[3.33] The HRC has recognized the right of minors to bring cases before it, though in most cases minors are represented by their parents.24 PS v DENMARK (397/90) ¶5.2. The Committee has taken notice of the State party’s contention that the author has no standing to act on behalf of his son [T.S.], as Danish law limits this right to the custodial parent. The Committee observes that standing under the Optional Protocol may be determined independently of national regulations and legislation governing an individual’s standing before a domestic court of law. In the present case, it is clear that T.S. cannot himself submit a complaint to the Committee; the relationship between father and son and the

24 Zwart, The Admissibility of Human Rights Petitions, 43–4, 78; PR Ghandhi, The Human Rights Committee and the Right of Individual Communication (Ashgate, 1998), 89. In Yutronic v Chile (740/97), a complaint on behalf of the victim’s adult sons was inadmissible, as the sons could have submitted the complaint themselves and there was no evidence of the sons authorizing the complaint (para 6.2).

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nature of the allegations must be deemed sufficient to justify representation of T.S. before the Committee by his father.

[3.34] In EB v New Zealand (1368/05), the complaint concerned a parent’s access to his children, and was submitted on his own behalf and that of his children. The children were aged 7, 10, and 14, and were therefore quite capable of consenting to their representation. As there was no evidence that such consent was sought let alone gained, the complaint was inadmissible regarding the children.25 Contrast the following case, which again concerned a parent’s access to a child. NT v CANADA (1052/02) ¶7.4. With respect to the author’s standing to represent her daughter in relation to her claims . . . , the Committee notes that the author’s daughter is now fourteen years old and has been adopted. It further notes that the author has not provided an authorisation from her daughter to act on her behalf. It recalls, however, that a non-custodial parent has sufficient standing to represent his or her children before the Committee. The bond existing between a mother and her child and the allegations in the case should be considered sufficient to justify representation of the author’s daughter by her mother. In addition, the Committee also notes that the author has repeatedly but unsuccessfully sought to obtain authorization from her daughter to act on her behalf . . . In the circumstances, the Committee is not precluded from examining the claims made on behalf of the child by her mother.26

[3.35]

X v SERBIA (1355/05)

In this case, an NGO sought to represent a boy who had allegedly been sexually assaulted at the age of ten. He had not authorized it to submit the communication. It argued: ¶3.5. With regard to the lack of express authorisation to represent the victim, the author recalls the Committee allows a communication to be submitted on behalf of an alleged victim when the victim is unable to submit the communication personally, especially in cases concerning children. . . . The author submits that no alternative legal representation exists for the victim in this case, since neither the parents, nor the guardian were willing to initiate a private prosecution. It recalls that it was the child’s former legal counsel in the domestic proceedings. . . . Finally, there are no possible conflicts of interest between the author and the victim in the pursuit of this communication since it addresses matters in which the author was duly authorized to represent the victim at the domestic level.

The HRC disagreed and found the communication inadmissible in one of its most extensive discussions of the issue of standing. ¶6.5. In the present case, the Committee must decide whether the author which acted as counsel for the child for part of the domestic proceedings has standing to bring a communication to the Committee on his behalf, regardless of the fact that it has no authorisation from the child, his legal guardian or his parents. The Committee notes that the author conceded 25 26

At para 8.3. See also Laing v Australia (901/99), para 7.3 and concurring opinion of Mr Scheinin [21.31].

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that it was not authorised to act by the child, his legal guardian or his parents . . . Indeed, the question of instructing the author to submit a communication to the Committee on behalf of the child has not been discussed with the child, his legal guardian or the parents. There is no indication either that the child, who was 12 at the time of the submission of the communication in 2004 and thus likely to be able to give his consent to the presentation of the a complaint, the legal guardian or the parents have, at any time, consented to the author’s acting on behalf of the child. ¶6.6 The Committee also notes the author’s argument that consent from the child, his legal guardian or his parents could not be obtained because all are under the influence of the alleged perpetrators of the sexual abuse. Nevertheless, the Committee also notes that after receiving the initial submission, it had asked the author to submit a power of attorney from the mother if she has regained parental authority or, if the child still has a legal guardian, to at least indicate consent to the examination of the case. On 14 January 2005, the author explained that it was unable to provide such a power of attorney or agreement for the reasons already spelt out above. There is no indication that the author has sought to obtain informal consent from the child, with whom it is no longer in contact. ¶6.7. In the absence of express authorisation, the author should provide evidence that it has a sufficiently close relationship with the child to justify it acting without such authorisation. The Committee notes that the author acted as counsel for the child in the domestic proceedings between January and August 2003 with several interruptions. Since the author ceased to represent the child in the domestic proceedings in August 2003, it has not been in contact with him, his legal guardian or his parents. In such circumstances, the Committee cannot even assume that the child does not object, let alone consent, to the author proceeding with a communication to the Committee. Consequently, notwithstanding that the Committee is gravely disturbed by the evidence in this case, it is precluded by the provisions of the Optional Protocol from considering the matter since the author has not shown that it may act on the victim’s behalf in submitting this communication. VICTIM IS REPRESENTED BY SUCCESSORS

[3.36] In Croes v The Netherlands (164/84), the Committee allowed the author’s heirs to continue to proceed with the communication after the author died whilst his case was still being considered by the Committee. However, if no instructions come forth from the author’s heirs the case may be discontinued, as occurred in Wallen v Trinidad and Tobago (576/94). UNBORN CHILDREN

[3.37]

QUEENAN v CANADA (1379/05)

The author sought to submit the communication, which concerned Canada’s abortion laws, on behalf of unborn children. The HRC dismissed his complaint in the following terms: ¶4.2. The Committee notes that the author does not claim that he is a victim of the alleged violations of the Covenant by the State party. The author states that he is submitting this communication on behalf of all unborn children in the State party in general. The Committee notes that, in accordance with Article 1 of the Optional Protocol, communications must be

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submitted by or on behalf of ‘individuals’ who claim ‘that any of their rights enumerated under the Covenant’ have been violated. The Committee considers that in the absence of specific claimants who can be individually identified, the author’s communication amounts to an actio popularis and is therefore inadmissible under article 1 of the Optional Protocol.

This challenge to the legalisation of abortion in Canada was inadmissible, as the applicant was not acting on behalf of a victim of that law. It is therefore questionable if a challenge to abortion can be practically raised under the Optional Protocol. The relative of an aborted child could possibly have standing, or perhaps a person who is born after a botched abortion.27

Future Violations FUTURE VICTIMS

[3.38]

EHP v CANADA (67/80)

The author submitted a complaint on her own behalf, as well as on the behalf of ‘present and future generations’ of Port Hope, Ontario. She claimed that the dumping of toxic waste within Port Hope threatened her life, and the life of present and future generations. The Committee stated the following with regard to the standing of the author: ¶8(a). The Committee considers that the author of the communication has the standing to submit the communication both on her own behalf and also on behalf of those residents of Port Hope who have specifically authorised her to do so. Consequently, the question as to whether a communication can be submitted on behalf of ‘future generations’ does not have to be resolved in the circumstances of the present case. The Committee will treat the author’s reference to ‘future generations’ as an expression of concern purporting to put into due perspective the importance of the matter raised in the communication.

The complaint was found inadmissible for failure to exhaust domestic remedies.28 However, the Committee’s ambivalence at striking out the reference to ‘future generations’ is interesting. The Port Hope complaint went further, however, as the author claimed standing in respect of people who had not even been conceived. Even if such complaints were admissible, one cannot imagine many instances where breaches of the ‘rights’ of future generations would be foreseeable enough to establish admissibility. Foreseeable breaches are discussed directly below. REASONABLE FORESEEABILITY

[3.39] The Committee has received a number of complaints relating to ICCPR violations that have not actually occurred, but which the author alleged would occur in the future. This issue arose in the following case. 27 Restrictions on abortion have been held to breach the ICCPR in Llantoy Huamán v Peru (1153/03) [9.58] and LMR v Argentina (1608/07) [8.92, 9.59]. 28 See, generally, Ch 6.

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The author was a Canadian citizen serving a prison sentence in a Canadian prison. His prison term was set to expire in 1988, but he had been informed in writing that he had earned remission and could be released in 1982. The author objected to certain provisions of the Parole Act 1970 which had come into force after he had committed the offences for which he was sentenced. The author claimed that he should not be subject to the new parole system, as it imposed a heavier burden than the old parole system, contrary to article 15.29 The Committee noted that the author’s complaint, submitted in 1981, was about hypothetical events and therefore was inadmissible.30 It made the following comments: ¶5.2. With regard to the actual implementation of the mandatory supervision, which might give the author cause for complaint, the Committee notes that the author has not yet served the two thirds of his sentence for which he is not entitled to remission and that in addition his release, due on 8 September 1982, depends on his good conduct up to that date. The mandatory supervision system is therefore not yet applicable to him. The possibility of the remission he has earned being cancelled after his release is still more hypothetical. In the present situation, therefore, he has no actual grievance such as is required for the admissibility of a communication by an individual under articles 1 and 2 of the Optional Protocol.

[3.40]

AUMEERUDDY-CZIFFRA et al v MAURITIUS (35/78)

Under Mauritian law, alien wives of Mauritian men were automatically eligible for Mauritian residence status, while alien husbands of Mauritian women were not. The petitioners were a number of Mauritian women who claimed that these laws violated the Covenant as they discriminated on the basis of sex. The Committee made the following comments regarding admissibility: ¶9.2(a). [T]he Committee notes that in the case of the 17 unmarried co-authors there is no question of actual interference with, or failure to ensure equal protection by the law to any family. Furthermore there is no evidence that any of them is actually facing a personal risk of being thus affected in the enjoyment of this or any other rights set forth in the Covenant by the laws complained against. In particular it cannot be said that their right to marry under article 23 (2) or the right to equality of spouses under article 23 (4) are affected by such laws.

Hence, the case was admissible only in so far as it concerned the rights of the three married authors. [3.41]

KINDLER v CANADA (470/91)

The author in this communication was detained in a jail in Canada at the time of his submission and subsequently extradited to the United States, where he faced the threat of capital punishment [8.67]. He made the following claims before the Committee: 29

See [15.07]. See also the decision in MacIsaac v Canada (55/79), where the HRC could not ultimately decide that the author was a victim, as it would have required several questionable presumptions on its part. 30

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¶3. The author claims that the decision to extradite him violates articles 6, 7, 9, 14 and 26 of the Covenant. He submits that the death penalty per se constitutes cruel and inhuman treatment or punishment, and that conditions on death row are cruel, inhuman and degrading. . . .

The State Party objected to the admissibility of the complaint on a number of grounds. It disputed, inter alia, the author’s status as a ‘victim’ of an ICCPR violation: ¶4.2. It is argued that the author cannot be considered a victim within the meaning of the Optional Protocol, since his allegations are derived from assumptions about possible future events, which may not materialise and which are dependent on the law and actions of the authorities of the United States. . . .

The Committee found the complaint admissible as the extradition potentially exposed Kindler to a real risk of violation of his ICCPR rights by the United States:31 ¶13.2. If a State party extradites a person within its jurisdiction in circumstances such that as a result there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant.

[3.42]

GENERAL COMMENT 31

¶12. Moreover, the article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm,32 such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed.

[3.43] In Judge v Canada (828/98) [8.69], the HRC found that Canada in fact did breach article 6 by extraditing Judge to the United States, where he was under sentence of death, without seeking assurances that he would not be executed. Ironically, his execution by the United States, if it occurred, may not constitute a breach of article 6 by the United States [8.71]. [3.44]

EW et al v THE NETHERLANDS (429/90)

The facts of the case are outlined in the Committee’s admissibility decision, excerpted directly below: ¶6.2. The authors claim that the State party’s preparations for the deployment of cruise missiles in Woensdrecht and the presence in the Netherlands of other nuclear weapons violate their rights under article 6 of the Covenant. The Committee recalls in this context its second General Comment on article 6, where it observed that ‘the designing, testing, manufacture, possession and deployment of nuclear weapons are among the greatest threats to the right to life which confront mankind today’. (General Comment 14[23], adopted on 2 November 31 32

See also [4.33], regarding the question of Canada’s territorial jurisdiction in this case. See discussion of this test in Pillai v Canada (1763/08) [9.100].

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1984.) At the same time, the Committee notes that the procedure laid down in the Optional Protocol was not designed for conducting public debate over matters of public policy, such as support for disarmament and issues concerning nuclear and other weapons of mass destruction. . . . ¶6.4. The Committee next considers whether the authors are victims within the meaning of the Optional Protocol. For a person to claim to be a victim of a violation of a right protected by the Covenant, he or she must show either that an act or an omission of a State party has already adversely affected his or her enjoyment of such right, or that such an effect is imminent, for example on the basis of existing law and/or judicial or administrative decision or practice. The issue in this case is whether the preparation for the deployment or the actual deployment of nuclear weapons presented the authors with an existing or imminent violation of their right to life, specific to each of them. The Committee finds that the preparations for deployment of cruise missiles between 1 June 1984 and 8 December 1987 and the continuing deployment of other nuclear weapons in the Netherlands did not, at the relevant period of time, place the authors in the position to claim to be victims whose right to life was then violated or under imminent prospect of violation. Accordingly, after careful examination of the arguments and materials before it, the Committee finds that the authors cannot claim to be victims within the meaning of article 1 of the Optional Protocol.

[3.45]

BORDES and TEMEHARO v FRANCE (645/95)

The authors complained of violations of their rights to life and freedom from interference in their family life entailed in the underground detonation of nuclear bombs by France in the South Pacific in 1995.33 The Committee agreed with the State Party that the case was inadmissible: ¶5.4. The Committee has noted the State party’s contention that the authors do not qualify as ‘victims’ within the meaning of article 1 of the Optional Protocol. It recalls that for a person to claim to be a victim of a violation of a right protected by the Covenant, he or she must show either that an act or omission of a State party has already adversely affected his or her enjoyment of such right, or that there is a real threat of such result. ¶5.5. The issue in the present case therefore is whether the announcement and subsequent conduct of underground nuclear tests by France on Mururoa and Fangataufa resulted in a violation of their right to life and their right to their family life, specific to Ms. Bordes and Mr. Temeharo, or presented an imminent threat to their enjoyment of such rights. The Committee observes that, on the basis of the information presented by the parties, the authors have not substantiated their claim that the conduct of nuclear tests between September 1995 and the beginning of 1996 did not place them in a position in which they could justifiably claim to be victims whose right to life and to family life was then violated or was under a real threat of violation. ¶5.6. Finally, as to the authors’ contention that the nuclear tests will further deteriorate the geological structure of the atolls on which the tests are carried out, further fissurate the limestone caps of the atolls, etc., and thereby increase the likelihood of an accident of catastrophic proportions, the Committee notes that this contention is highly controversial even in concerned scientific circles; it is not possible for the Committee to ascertain its validity or correctness. 33

See also [8.85].

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¶5.7. On the basis of the above considerations and after careful examination of the arguments and materials before it, the Committee is not satisfied that the authors can claim to be victims within the meaning of article 1 of the Optional Protocol.

This decision indicates that any future complaint by a person regarding the impact of global warming on his or her human rights might face difficulties in proving precise causation. LEGISLATION MAY VIOLATE THE ICCPR IN THE ABSENCE OF ENFORCEMENT

[3.46] The HRC has also found that domestic legislation may be incompatible with the Covenant even where it has not been directly implemented in relation to the particular author. AUMEERUDDY-CZIFFRA et al v MAURITIUS (35/78) The facts of this case are outlined above [3.40]. After rejecting the standing of a number of the complainants, the Committee considered whether the remaining authors could be considered victims, in the absence of the enforcement of the impugned law. ¶9.2(b) 1. The Committee will next examine that part of the communication which relates to the effect of the laws of 1977 on the family life of the three married women. ¶9.2 (b) 2 (i) 3. In the present cases, not only the future possibility of deportation, but the existing precarious residence situation of foreign husbands in Mauritius represents, in the opinion of the Committee, an interference by the authorities of the State party with the family life of the Mauritian wives and their husbands. The statutes in question have rendered it uncertain for the families concerned whether and for how long it will be possible for them to continue their family life by residing together in Mauritius. Moreover, as described . . . in one of the cases, even the delay for years, and the absence of a positive decision granting a residence permit, must be seen as a considerable inconvenience, among other reasons because the granting of a work permit, and hence the possibility of the husband to contribute to supporting the family, depends on the residence permit, and because deportation without judicial review is possible at any time.

The Committee accordingly decided that the remaining three authors could be deemed ‘victims’. [3.47]

BALLANTYNE et al v CANADA (359 and 385/89)

In this case the authors challenged a provision in the Charter of the French Language, enacted by the Provincial government of Quebec, stating that only French could be used in public bill-posting and in commercial advertising outdoors [18.39]. The Committee found the communication admissible, despite the fact that the law had not been officially enforced against two of the authors. Its comments were as follows: ¶10.4. The Committee has further reconsidered, eo volonte, whether all the authors are properly to be considered victims within the meaning of article 1 of the Optional Protocol.

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In that context, it has noted that Mr. Ballantyne and Ms. Davidson have not received warning notices from the Commissioner-Enquirer of the ‘Commission de protection de la langue française’ nor been subjected to any penalty. However, it is the position of the Committee that where an individual is in a category of persons whose activities are, by virtue of the relevant legislation, regarded as contrary to law, they may have a claim as ‘victims’ within the meaning of article 1 of the Optional Protocol.

[3.48]

TOONEN v AUSTRALIA (488/92)

This case concerned a challenge to Tasmanian laws which criminalized sexual relations between consenting males [16.50]. Although the Tasmanian police had not charged anyone under this law for many years, the author argued that the stigmatizing effects of the law nevertheless rendered him a victim. His arguments were as follows: ¶2.3. Although in practice the Tasmanian police have not charged anyone either with ‘unnatural sexual intercourse’ or ‘intercourse against nature’ (Section 122) nor with ‘indecent practice between male persons’ (Section 123) for several years, the author argues that because of his long-term relationship with another man, his active lobbying of Tasmanian politicians and the reports about his activities in the local media, and because of his activities as a gay rights activist and gay HIV/AIDS worker, his private life and his liberty are threatened by the continued existence of Sections 122(a), (c) and 123 of the Criminal Code. ¶2.4. Mr. Toonen further argues that the criminalisation of homosexuality in private has not permitted him to expose openly his sexuality and to publicise his views on reform of the relevant laws on sexual matters, as he felt that this would have been extremely prejudicial to his employment. In this context, he contends that Sections 122(a), (c) and 123 have created the conditions for discrimination in employment, constant stigmatization, vilification, threats of physical violence and the violation of basic democratic rights. ¶2.5. The author observes that numerous ‘figures of authority’ in Tasmania have made either derogatory or downright insulting remarks about homosexual men and women over the past few years. These include statements made by members of the Lower House of Parliament, municipal councillors (such as ‘representatives of the gay community are no better than Saddam Hussein’; ‘the act of homosexuality is unacceptable in any society, let alone a civilised society’), of the church and of members of the general public, whose statements have been directed against the integrity and welfare of homosexual men and women in Tasmania (such as ‘[g]ays want to lower society to their level’; ‘You are 15 times more likely to be murdered by a homosexual than a heterosexual . . . ’). In some public meetings, it has been suggested that all Tasmanian homosexuals should be rounded up and ‘dumped’ on an uninhabited island, or be subjected to compulsory sterilization. Remarks such as these, the author affirms, have had the effect of creating constant stress and suspicion in what ought to be routine contacts with the authorities in Tasmania. ¶2.6. The author further argues that Tasmania has witnessed, and continues to witness, a ‘campaign of official and unofficial hatred’ against homosexuals and lesbians. This campaign has made it difficult for the Tasmanian Gay Law Reform Group to disseminate information about its activities and advocate the decriminalization of homosexuality. Thus, in September 1988, for example, the TGLRG was refused permission to put up a stand in a public square in the city of Hobart, and the author claims that he, as a leading protester against the ban, was subjected to police intimidation.

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¶2.7. Finally, the author argues that the continued existence of Sections 122(a), (c) and 123 of the Criminal Code of Tasmania continue to have profound and harmful impacts on many people in Tasmania, including himself, in that it fuels discrimination and harassment of, and violence against, the homosexual community of Tasmania.

The HRC agreed that the author could be deemed a victim within the meaning of article 1 OP. It made the following comments on the issue of admissibility: ¶5.1. . . . As to whether the author could be deemed a ‘victim’ within the meaning of article 1 of the Optional Protocol, it noted that the legislative provisions challenged by the author had not been enforced by the judicial authorities of Tasmania for a number of years. It considered, however, that the author had made reasonable efforts to demonstrate that the threat of enforcement and the pervasive impact of the continued existence of these provisions on administrative practices and public opinion had affected him and continued to affect him personally, and that they could raise issues under articles 17 and 26 of the Covenant. Accordingly, the Committee was satisfied that the author could be deemed a victim within the meaning of article 1 of the Optional Protocol, and that his claims were admissible ratione temporis.

The HRC agreed that the very existence of the laws breached or at least imminently threatened Toonen’s rights. Toonen could therefore claim ‘victim’ status, even in the absence of the enforcement of the impugned laws.

Conclusion [3.49] The HRC has interpreted the OP ‘victim’ requirement quite strictly. Generally, one’s communication will not be admissible unless one is an individual victim of an ICCPR rights abuse or one is in foreseeable danger of an ICCPR violation. Exceptions do apply, where one may submit a communication on behalf of another or where one is designated a victim of legislation despite its non-enforcement.

4 Territorial and Jurisdictional Limits • • • • • • •

Colonies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Extraterritorial State Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . Diminished Intra-territorial Responsibility . . . . . . . . . . . . . . . . . . . . . . . State Liability for the Acts of Private Persons. . . . . . . . . . . . . . . . . . . . . State Liability for the Acts of International Organizations . . . . . . . . . . . Liability with Regard to the Acts of Other States . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[4.05] [4.11] [4.18] [4.19] [4.25] [4.32] [4.41]

[4.01] Article 2(1) of the ICCPR stipulates that a State’s ICCPR responsibility is limited to ‘persons subject to a State’s jurisdiction and within its territory’. Article 1 of the Optional Protocol (OP) prescribes that the liability of a State thereunder is limited to ‘persons subject to its jurisdiction’. This chapter addresses the territorial and jurisdictional limits of State ICCPR and OP obligations. [4.02] A State has responsibility to all within its jurisdiction, regardless of a person’s citizenship.1 GENERAL COMMENT 31 ¶10. . . . As indicated in General Comment 15 adopted at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. . . .

[4.03] The Human Rights Committee (HRC) has interpreted this requirement so that a person can complain of a violation within the jurisdiction even though he/ she is no longer within that jurisdiction. For example, in Massiotti and Baristussio v Uruguay (25/78), the authors were residing, respectively, in the Netherlands and Sweden at the time they lodged their communications. Despite the State Party’s argument that the HRC would be exceeding its competence if it heard the matter, the HRC clearly stated that the authors were victims under the jurisdiction of Uruguay when the alleged violations took place.2 [4.04] Mbenge v Zaire (16/77) demonstrates that an intra-territorial violation can occur to someone who is outside a State’s territory. Mbenge was tried in absentia

1 2

Miha v Equatorial Guinea (414/90). At paras 7.1–7.2.

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3

in contravention of article 14(3)(d) even though, at the time of the impugned trial, he was in Belgium.

Colonies [4.05] In general, the HRC’s practice indicates that a State’s ratification of the Covenant and the Protocols will extend to that State’s colonies in the absence of a declaration to the contrary.4 The most comprehensive discussion arose in the following case, which, unfortunately, elicited confusing reasoning. [4.06]

KUOK KOI v PORTUGAL (925/00)

This case concerned a complaint by a resident of Macao about various irregularities in a trial which, the author claimed, breached the right to a fair trial in article 14 of the ICCPR.5 Macao was, until 19 December 1999, a Portuguese colony. The administration of Macao was transferred to the People’s Republic of China on 20 December 1999. The author initially submitted his communication on 15 December 1999. Thus, Macao was under Portuguese administration at the time of submission of the communication, but under PRC jurisdiction by the time the admissibility of the communication was considered in late 2001. Portugal claimed the case was inadmissible for a variety of reasons, one of which was that the Optional Protocol never applied to Macao while it was under Portuguese jurisdiction. On 17 December 1992, the Portuguese Parliament expressly extended the operation of the Covenant itself to Macao but made no mention of the OP. The State Party therefore argued: ¶4.1. . . . It argues that whereas the application of the Covenant was extended to Macao by the Portuguese Parliament by virtue of Resolution 41/92 of 17 December 1992, no such resolution was adopted with respect to the Optional Protocol. ¶4.2. The State party also indicates that the Optional Protocol is not among the treaties listed in the note addressed by the Portuguese Government in November 1999 to the United Nations Secretary General concerning those treaties for which the People’s Republic of China had agreed to assume the responsibilities of succession.

The HRC disagreed with the State Party and found that the OP did apply to Macao (at least while it was under Portuguese authority): ¶6.2. With regard to the application of the Optional Protocol to Macao during the period under Portuguese administration, until 19 December 1999, the Committee notes that the State party adhered to the Optional Protocol with effect from 3 August 1983. It further notes that the application of the Protocol cannot be based on article 10 of the Optional Protocol, since Macao was not a constituent part of Portugal after adoption of the new Constitution in 3

See [14.142]. M Nowak, CCPR Commentary (2nd edn, NP Engel, 2005), 45. The introduction to and commentary on this case are taken from S Joseph, ‘Human Rights Committee: Recent Cases’ (2002) 2 HRLR 287 at 287–90. 4 5

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1976. It is also not possible to draw a positive conclusion from the Portuguese Parliament’s resolution 41/92 which formally extended the application of the Covenant to Macao, since the Covenant and the Optional Protocol are distinct treaties. ¶6.3. The Committee, on the other hand, does not share the view that the fact that an analogous declaration has not been made with regard to the Optional Protocol precludes the application of the Protocol to this case. The Committee recalls the language of article 1 of the Optional Protocol which stipulates in its first clause: ‘A State party to the Covenant that becomes a party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State party of any of the rights set forth in the Covenant’. All these elements are present in the case at hand. Portugal is a party to the Covenant, as well as to the Optional Protocol, and as such it has recognized the Committee’s competence to receive and consider communications from individuals ‘subject to its jurisdiction’. Individuals in Macao were subject to Portugal’s jurisdiction until 19 December 1999. In the present case, the State party exercised its jurisdiction by the courts over the author. As the intention of the Optional Protocol is further implementation of Covenant rights, its non-applicability in any area within the jurisdiction of a State party cannot be assumed without any express indication (reservation/declaration) to that effect. No act of this nature exists. Therefore, the Committee comes to the conclusion that it has the competence to receive and consider the author’s communication insofar as it concerns alleged violations by Portugal of any of the rights set forth in the Covenant.

In a footnote, the HRC bolstered this conclusion by reference to Article 29 of the Vienna Convention of the Law of Treaties 1969, which states: ‘Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.’ [4.07] Thus, it seems that, according to the HRC’s reasoning, the OP in fact applied to Macao from the date of Portuguese ratification in 1983. However, this conclusion is muddied by the HRC’s statement that ‘[R]esolution 41/92 . . . formally extended the application of the Covenant to Macao’, which seems to concede that the ICCPR applied to Macao only as of December 1992. If that is the case, the OP can apply to Macao only as of December 1992; it would be impossible for the OP to apply to a territory while the ICCPR did not, as the OP operates only as a procedural attachment to the substantive ICCPR rights. However, one might wonder why the OP applied to Macao in the absence of express words, while the ICCPR did not. Surely it is arguable that the ICCPR applied to Macao as of 1978, as Portugal entered no declaration or reservation denying such application. Furthermore, the dialogues between HRC members and Portuguese representatives pursuant to Portuguese reports before 1992 indicate, on balance, that the ICCPR applied to Macao prior to 1992. Unfortunately, the HRC’s Kuok Koi decision in respect of the OP’s application to Macao prior to its transfer to the PRC is not coherent. Indeed, neither is its prior jurisprudence on the issue, stemming from dialogues with Portugal. Logically, either the OP and the ICCPR applied to Macao as of the date of the treaties’ coming

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into force for Portugal (1983 and 1978), or only the ICCPR applied as of December 1992. [4.08] In separate opinions, Messrs Klein, Rivas Posada, and Yalden, and perhaps Mr Scheinin,6 agreed with the conclusion that the OP bound Portugal in respect of Macao before 20 December 1999. They were not clear as to the date at which the OP, or the ICCPR, began to apply to Macao. Mr Kretzmer explicitly reserved his position on this point, as he felt that it was unnecessary in the circumstances to make such a decision. Overall, a majority of the HRC found that the OP applied to Macao before its transfer to the PRC.7 [4.09] Messrs Amor and Bhagwati, with whom Mr Ando agreed on this point, dissented. They stated: . . . [I]t is indisputable that the Covenant did not become applicable to Macao from the moment of its ratification by Portugal. The Covenant was in fact extended to Macao for the first time by a Resolution passed by the Portuguese Parliament on 17 December 1992. Till that time the Covenant was not applicable to Macao. It was by virtue of the Parliamentary Resolution dated 17 December 1992 that it became applicable to Macao. The Parliamentary extension of the Covenant to Macao on 17 December 1992 also demonstrates that in any event, it was not the intention of Portugal, when it ratified the Covenant, to make it applicable to Macao. The conclusion is therefore inevitable that the Covenant became applicable to Macao for the first time on 17 December 1992. . . . If the Covenant did not become applicable to Macao until 17 December 1992, how could the Optional Protocol which merely provides the machinery for redressing violations of the Covenant rights, become applicable to Macao at any earlier point of time? Since the Optional Protocol did not become applicable to Macao as a consequence of its ratification by Portugal, it becomes necessary to consider whether at any subsequent point of time, it was extended to Macao. . . . Here, in the present case, it is significant to note that though the Covenant was extended to Macao on 17 December 1992 by a specific resolution passed by the Portuguese Parliament, the extension did not include the Optional Protocol. Portugal specifically made one treaty applicable to Macao but not the other. This clearly shows the intention of Portugal that, while the Covenant should be applicable to Macao, the Optional Protocol should not be. . . . I have therefore no doubt that the Optional Protocol was not applicable to Macao at any time and hence the communication must be held to be inadmissible under article 2 of the Optional Protocol.

This minority opinion rests on the premise that ‘it is indisputable’ that the ICCPR became applicable to Macao only on 17 December 1992. However, as argued above, the assertion is in fact disputable, and thus does not give a solid grounding to the arguments in this minority decision. Nevertheless, the Amor/Bhagwati opinion is more internally consistent than that of the HRC.

6

Mr Scheinin was not very clear on this point in his separate opinion. The ‘transfer’ issue raised important questions regarding succession to treaties, discussed at [26.45]ff. 7

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[4.10] Ultimately, the Kuok Koi case was found inadmissible. Three members (Amor, Bhagwati, and Ando) found that the OP never applied to Macao. The rest of the majority (in favour of inadmissibility) found that the author had failed to exhaust domestic remedies [6.40].

Extraterritorial State Responsibility [4.11] The text of article 2(1) of the ICCPR seems expressly to exclude liability for a State Party for acts which occur outside its territory. However, the HRC has taken a liberal approach to the jurisdictional extent of a State’s ICCPR obligations, confirming that States do have a level of extraterritorial responsibility. GENERAL COMMENT 31 ¶10 States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. . . .

[4.12] States Parties are required to ensure the implementation of ICCPR rights within their sovereign territory, and within territory over which they have effective control. For example, Israel bears responsibility for implementation of the ICCPR within Israel, as well as the Occupied Territories in the West Bank and Gaza. In Concluding Observations on Israel, the HRC stated:8 ¶5. The Committee reiterates its view . . . that the applicability of the regime of international humanitarian law during an armed conflict, as well as in a situation of occupation, does not preclude the application of the Covenant, except by operation of article 4, whereby certain provisions may be derogated from in time of public emergency. The Committee’s position has been endorsed, unanimously, by the International Court of Justice in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion, I.C.J. Reports 2004, p. 136), according to which the Covenant is applicable in respect of acts done by a State in exercise of its jurisdiction outside its own territory. Furthermore, the applicability of the regime of international humanitarian law does not preclude accountability of States parties under article 2, paragraph 1, of the Covenant for the actions of their authorities or agents outside their own territories, including in occupied territories. The Committee therefore reiterates and underscores that, contrary to the State party’s position, in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the occupied territories, including in the Gaza Strip, with regard to all conduct by the State party’s authorities or agents in those territories affecting the enjoyment of rights enshrined in the Covenant (arts. 2 and 40). The State party should ensure the full application of the Covenant in Israel as well as in the occupied territories, including the West Bank, East Jerusalem, the Gaza Strip and the occupied Syrian Golan Heights. In accordance with the Committee’s general comment No. 8 (2010) UN doc CCPR/C/ISR/CO/3; see also previous Concluding Observations on Israel (2003) UN doc CCPR/CO/78/ISR, para 11 and (1999) UN doc CCPR/C/79/Add.93, para 10.

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31, the State party should ensure that all persons under its jurisdiction and effective control are afforded the full enjoyment of the rights enshrined in the Covenant.

[4.13] The HRC addressed the issue of extraterritorial responsibility in the following cases, where the complaints alleged ICCPR violations entailed in the extraterritorial activities of State agents. LÓPEZ BURGOS v URUGUAY (52/79) The victim was kidnapped from Argentina by Uruguayan agents, who detained him secretly in Buenos Aires for two weeks before transporting him across the border to Uruguay. The Committee made the following comments regarding admissibility: ¶12.1. The Human Rights Committee . . . observes that although the arrest and initial detention and mistreatment of López Burgos allegedly took place on foreign territory, the Committee is not barred either by virtue of article 1 of the Optional Protocol (‘ . . . individuals subject to its jurisdiction . . . ’) or by virtue of article 2(1) of the Covenant (‘ . . . individuals within its territory and subject to its jurisdiction . . . ’) from considering these allegations, together with the claim of subsequent abduction into Uruguayan territory, inasmuch as these acts were perpetrated by Uruguayan agents acting on foreign soil. ¶12.2. The reference in article 1 of the Optional Protocol to ‘individuals subject to its jurisdiction’ does not affect the above conclusion because the reference in that article is not to the place where the violation occurred, but rather to the relationship between the individual and the State in relation to a violation of any of the rights set forth in the Covenant, wherever they occurred. ¶12.3. Article 2 (1) of the Covenant places an obligation upon a State party to respect and to ensure rights ‘to all individuals within its territory and subject to its jurisdiction’, but it does not imply that the State party concerned cannot be held accountable for violations of rights under the Covenant which its agents commit upon the territory of another State, whether with the acquiescence of the Government of that State or in opposition to it. According to article 5 (1) of the Covenant: ‘Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognised herein or at their limitation to a greater extent than is provided for in the present Covenant.’ In line with this, it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.

[4.14]

MONTERO v URUGUAY (106/81)

In this case the petitioner’s Uruguayan passport was confiscated by the Uruguayan consulate in Germany, in breach, he argued, of article 12 which guarantees freedom of movement.9 Despite the fact that the confiscation took place in Germany the HRC held that the impugned act was within the jurisdiction of Uruguay: 9 See discussion of the merits of the similar case of Vidal Martins v Uruguay (57/79) at [12.20] and also El Ghar v Libyan Arab Jamahiriya (1107/02).

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¶5. Before taking its decision on the admissibility of the communication, the Human Rights Committee examined, ex officio, whether the fact that Mabel Pereira Montero resides abroad affects the competence of the Committee to receive and consider the communication under article 1 of the Optional Protocol, taking into account the provisions of article 2(1) of the Covenant. In that context, the Committee made the following observations: article 1 of the Optional Protocol applies to individuals subject to the jurisdiction of the State concerned who claim to be victims of a violation by that State of any of the Covenant rights. The issue of a passport to a Uruguayan citizen is clearly a matter within the jurisdiction of the Uruguayan authorities and he is ‘subject to the jurisdiction’ of Uruguay for that purpose. Moreover, a passport is a means of enabling him ‘to leave any country including his own’, as required by article 12(2) of the Covenant. Consequently, the Committee found that it followed from the very nature of that right that, in the case of a citizen resident abroad, it imposed obligations both on the State of residence and on the State of nationality and that, therefore, article 2(1) of the Covenant could not be interpreted as limiting the obligations of Uruguay under article 12(2) to citizens within its own territory.

[4.15]

JHA v SPAIN (CAT 323/07)

This communication was a complaint under the CAT relating to the detention of 23 Indian asylum-seekers in Mauritania. They had been taken there by Spanish authorities, who had picked them up after their vessel capsized. The alleged victims were transported to Mauritania pursuant to an agreement between Spain and that country. They were then subjected to identification processes by Spanish police. The 23 alleged victims, who all claimed asylum, were detained in a former fish processing plant in Nouadhibou under Spanish control. The claims related to the conditions of detention and an asylum claim by the alleged victims. Spain argued that it had no responsibility as the alleged victims were detained in Mauritania rather than Spain: ¶6.1. . . . It . . . maintains that Spain bears no responsibility because the incidents took place outside its jurisdiction. It points out that the action it took far exceeded its international obligations relating to assistance and rescue at sea, which were limited to rescuing the boat and bringing it to a safe port without any concomitant responsibility for the treatment, care and repatriation of the passengers who had been on board.

The CAT Committee did not agree with Spain, and did not rule the case inadmissible due to a lack of territorial jurisdiction: ¶8.2. The Committee takes note of the State party’s argument that the complainant lacks competence to represent the alleged victims because the incidents forming the substance of the complaint occurred outside Spanish territory. Nevertheless, the Committee recalls its general comment No. 2, in which it states that the jurisdiction of a State party refers to any territory in which it exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law.10 In particular, it considers that such jurisdiction must also include situations where a State party exercises, directly or indirectly, de facto or de jure control over persons in detention. This interpretation of the 10 CAT General Comment 2, paras 7 and 16, confirms the extraterritorial scope of the CAT, which is expressed in similar terms to that scope under the ICCPR in General Comment 31. See also Sonko v Spain (CAT 368/08).

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concept of jurisdiction is applicable in respect not only of article 2, but of all provisions of the Convention, including article 22. In the present case, the Committee observes that the State party maintained control over the persons on board the Marine I from the time the vessel was rescued and throughout the identification and repatriation process that took place at Nouadhibou. In particular, the State party exercised, by virtue of a diplomatic agreement concluded with Mauritania, constant de facto control over the alleged victims during their detention in Nouadhibou. Consequently, the Committee considers that the alleged victims are subject to Spanish jurisdiction insofar as the complaint that forms the subject of the present communication is concerned.

Ultimately, the communication was ruled to be inadmissible as the complainant lacked standing to make the complaint on behalf of the alleged victims [3.32]. [4.16]

GENERAL COMMENT 31

¶10. . . . This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.

States Parties are therefore responsible for the actions of their armed forces stationed abroad, such as the overseas forces in Iraq in 2003.11 For example, the HRC has stated, with regard to Belgium:12 ¶14. The Committee is concerned about the behaviour of Belgian soldiers in Somalia under the aegis of the United Nations Operation in Somalia (UNOSOM II), and acknowledges that the State party has recognised the applicability of the Covenant in this respect and opened 270 files for purposes of investigation. The Committee regrets that it has not received further information on the results of the investigations and adjudication of cases and requests the State party to submit this information.

It stated with regard to the Netherlands:13 ¶8. The Committee remains concerned that, six years after the alleged involvement of members of the State party’s peacekeeping forces in the events surrounding the fall of Srebrenica, Bosnia and Herzegovina, in July 1995, the responsibility of the persons concerned has yet to be publicly and finally determined. The Committee considers that in respect of an event of such gravity it is of particular importance that issues relating to the State party’s obligation to ensure the right to life be resolved in an expeditious and comprehensive manner (articles 2 and 6 of the Covenant). The State party should complete its investigations as to the involvement of its armed forces in Srebrenica as soon as possible, publicize these findings widely and examine the conclusions to determine any appropriate criminal or disciplinary action.

11 See T Meron, ‘Extraterritoriality of Human Rights Treaties: the 1994 US Action in Haiti’ (1995) 89 AJIL 78. 12 UN doc CCPR/C/79/Add.99. See also Concluding Observations on Belgium (2004) UN doc CCPR/CO/81/BEL, para 6. 13 (2001) UN doc CCPR/CO/72/NET.

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Regarding Germany, the HRC has stated:14 ¶11. The Committee notes with concern that Germany has not yet taken a position regarding the applicability of the Covenant to persons subject to its jurisdiction in situations where its troops or police forces operate abroad, in particular in the context of peace missions. It reiterates that the applicability of the regime of international humanitarian law does not preclude accountability of States parties under article 2, paragraph 1, of the Covenant for the actions of its agents outside their own territories.

[4.17] Regarding the UK, the HRC has expressed regret over the limited acceptance by the UK of extraterritorial duties:15 ¶14. The Committee is disturbed about the State party’s statement that its obligations under the Covenant can only apply to persons who are taken into custody by the armed forces and held in British-run military detention facilities outside the United Kingdom in exceptional circumstances. . . . The State party should state clearly that the Covenant applies to all individuals who are subject to its jurisdiction or control. . . .

Diminished Intra-territorial Responsibility [4.18] The flipside of extraterritorial State responsibility over territories which it controls is the possible absence of intraterritorial responsibility where a State lacks de facto control. For example, Cuba lacks de facto control over Guantanamo Bay. If it was a party to the ICCPR,16 what would be its responsibilities with regard to that territory? The HRC has addressed this issue with regard to Georgia:17 ¶6. While taking note of the difficulties expressed by the State party in implementing the Covenant in the Abkhazia and Tskhinvali Region/South Ossetia, and acknowledging positive steps taken to ensure protection of the rights under the Covenant of persons living in territories presently not under its control, including encouraging United Nations special procedures mechanisms invited to Georgia to visit such territories and engage in dialogue with de facto authorities, the Committee is concerned that the populations concerned do not fully enjoy the Covenant provisions (arts. 1 and 2). The State party should continue to take all possible measures, without discrimination, to enhance protection under the Covenant for the population of these regions by the Abkhazia and Tskhinvali Region/South Ossetia de facto authorities. The State party should ensure that international agencies are able to operate without obstacles.

14 (2004) UN doc CCPR/CO/80/DEU; see also Concluding Observations on Poland (2004) UN doc CCPR/CO/82/POL, para 3; Italy (2006) UN doc CCPR/C/ITA/CO/5, para 3; Democratic Republic of the Congo (2006) UN doc CCPR/C/COD/CO/3, para 13; Norway (2006) UN doc CCPR/C/NOR/ CO/5, para 6; Russian Federation (2009) UN doc CCPR/C/RUS/CO/6, para 13. 15 (2008) UN doc CCPR/C/GBR/CO/6. See also Concluding Observations on the United States (2006) UN doc CCPR/C/USA/CO/3/Rev 1, para 10. 16 Cuba signed the treaty in 2008 but it has not ratified it. 17 (2007) UN doc CCPR/C/GEO/CO/3.

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Hence, it appears that the HRC recognizes that Georgia has limited powers to respect, protect and fulfill ICCPR rights in Abkhazia and Tskhinvali Region/South Ossetia as Russia has effective control over those territories. However, it should do all it can to ensure that ICCPR rights are implemented there. Similar comments were conveyed to the Republic of Moldova regarding its lack of effective control over the territory of Transdniestra: the State retained obligations ‘within the limits of its effective power’.18

State Liability for the Acts of Private Persons [4.19]

GENERAL COMMENT 31

¶8.8. The article 2, paragraph 1, obligations are binding on States [Parties] and do not, as such, have direct horizontal effect as a matter of international law. The Covenant cannot be viewed as a substitute for domestic criminal or civil law. However the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. States are reminded of the interrelationship between the positive obligations imposed under article 2 and the need to provide effective remedies in the event of breach under article 2, paragraph 3. The Covenant itself envisages in some articles certain areas where there are positive obligations on States Parties to address the activities of private persons or entities. For example, the privacy-related guarantees of article 17 must be protected by law. It is also implicit in article 7 that States Parties have to take positive measures to ensure that private persons or entities do not inflict torture or cruel, inhuman or degrading treatment or punishment on others within their power. In fields affecting basic aspects of ordinary life such as work or housing, individuals are to be protected from discrimination within the meaning of article 26. . . .

[4.20]

KESHAVJEE v CANADA (949/00)

The author submitted to the HRC a communication which concerned the actions of a trade union. The HRC ruled the communication inadmissible and stated: ¶4.2. In terms of the allegations directed against the conduct of the Union, the Committee observes that the allegations are directed against private parties. In the absence of any argument on which the State party might be held responsible for the actions of these individuals, this part of the communication is inadmissible ratione personae under article 1 of the Optional Protocol.

18 Concluding Observations on the Republic of Moldova (2009) UN doc CCPR/C/MDA/CO/2, para 5; see also Concluding Observations on Serbia (2011) UN doc CCPR/C/SRB/CO/2, para 3.

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States Parties are generally required to prevent private citizens from abusing the rights of others within the jurisdiction.19 However, the ICCPR imposed no direct responsibilities on private bodies. The complaint in Keshavjee failed because the author failed to establish or even argue for a connection between the State and the impugned behaviour by the trade union. [4.21]

KRASOVSKY v BELARUS (1820/08)

In this case, the victim was kidnapped off the streets of Belarus and had not been seen since. There were strong reasons to believe he had been killed. The authors had tried to argue that the disappearance was orchestrated by the State. The HRC decided as follows: ¶8.2. . . . The Committee notes that the submissions before it do not contain sufficient information to clarify the cause of Mr. Krasovsky’s disappearance or presumed death, or the identity of any person who may have been involved, and therefore do not show a sufficient nexus between the disappearance of Mr. Krasovsky and the action and activities of the State party that allegedly led to the disappearance. In these circumstances, the Committee is of the view that the facts before it do not allow it to conclude that the disappearance of Mr. Krasovsky was carried out by the State party itself. . . . ¶8.3. The Committee recalls that State parties have a positive obligation to ensure the protection of individuals against violations of Covenant rights, which may be committed not only by its agents, but also by private persons or entities. The Committee further recalls its general comment No. 31, according to which States must establish appropriate judicial and administrative mechanisms for addressing claims of rights violations (para. 15), and that criminal investigation and consequential prosecution are necessary remedies for violations of human rights such as those protected by articles 6 and 7 of the Covenant. In the instant case, the Committee observes that the numerous complaints filed by the authors have not led to the arrest or prosecution of a single perpetrator. The Committee further observes not only the failure of the State to conduct a proper investigation but also the failure to explain at which stage the proceedings are, 10 years after the disappearance of Mr. Krasovsky. In the absence of an explanation of the lack of progress in the investigation by the State party, and in view of the information before it, the Committee concludes that the State party has violated its obligations under article 2, paragraph 3, read in conjunction with articles 6 and 7, for failure to properly investigate and take appropriate remedial action regarding the disappearance of Mr. Krasovsky.

[4.22] Other decisions, such as Delgado Páez v Colombia (195/85) [11.03] on the right to security of the person and Cabal and Pasini Bertran v Australia (1020/02) [9.199] concerning treatment in a private prison have confirmed the horizontal application of the ICCPR. Furthermore, while a claim over a State’s failure to control the actions of Catholic pressure groups in LMR v Argentina (1608/07), it failed due to a lack of substantiation rather than a lack of an actionable claim under the ICCPR [17.26]. [4.23] Controversies involving the horizontal application of ICCPR rights can in reality involve a clash of respective rights. After all, the regulation of a private person in 19

See also [1.110]ff.

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order to protect the rights of another will normally involve the restriction of the liberties, and possibly the rights, of the former person. Arenz v Germany (1138/02) concerned a complaint by two Scientologists over their expulsion from a major German political party, the CDU, due to their religion. In a sense, the case manifested a clash between the freedom of religion of the authors, and the freedom of association of members of the CDU. The German courts resolved that conflict in favour of the CDU, and the HRC was not prepared to disturb that finding. Therefore, this case indicates that the HRC will be quite deferential to States in resolving such clashes of rights.20 [4.24] It is interesting to speculate whether a State Party could ever be held responsible for the actions of its nationals acting abroad in a private capacity.21 For example, could a State Party be held liable for a failure to prevent egregious human rights abuse by its corporate citizens abroad? This is a compelling issue, as some transnational corporations are more politically and economically powerful than some of the host States (especially developing nations) in which they operate, so compulsory ‘home State’ regulation may be highly desirable.22

State Liability for the Acts of International Organizations [4.25]

HvdP v THE NETHERLANDS (217/86)

The author of this communication complained about the recruitment policies of his employer, the European Patent Office: ¶2.3. The author then turned to the Human Rights Committee, which he considers competent to consider the case, since five States parties (France, Italy, Luxembourg, the Netherlands and Sweden) to the European Patent Convention are also parties to the Optional Protocol to the International Covenant on Civil and Political Rights. He argues that ‘pursuant to article 25(c), every citizen shall have access, on general terms of equality, to public service in his country. The EPO, though a public body common to the Contracting States, constitutes a body exercising Dutch public authority’. The appeal to the President of EPO and the opinion given by the Internal Appeals Committee, the author argues, do not constitute an effective remedy within the meaning of article 2 of the Covenant against violations of article 25(c) of the Covenant. Moreover, ‘the Internal Appeals Committee is a travesty of competence, independence and impartiality as required by article 14 of the Covenant. IAC declines to adjudicate on the basis of public international law invoked by the applicant, i.e. law which the Contracting States undertook solemnly to observe’. . . .

The HRC found the case inadmissible: ¶3.2. The Human Rights Committee observes in this connection that it can only receive and consider communications in respect of claims that come under the jurisdiction of a State 20

See [17.24] and [19.33]. See generally T Zwart, The Admissibility of Human Rights Petitions (Ashgate, 1998), 87–90. 22 See Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, principles 1 and 2 (annexed to Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie (2011) UN doc A/HRC/17/31). 21

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party to the Covenant. The author’s grievances, however, concern the recruitment policies of an international organization, which cannot, in any way, be construed as coming within the jurisdiction of the Netherlands or of any other State party to the International Covenant on Civil and Political Rights and the Optional Protocol thereto. Accordingly, the author has no claim under the Optional Protocol.

[4.26] It is not surprising that the HRC has no jurisdiction over international organizations, as they are not parties to the ICCPR. However, the power and influence of modern international organizations, such as the European Union23 and its many organs, the World Trade Organization, the International Monetary Fund, the World Bank, and the United Nations itself, has expanded to the extent where they perhaps should be expressly bound by human rights treaties. [4.27] Unusually, the United Nations Interim Administration Mission in Kosovo (UNMIK) submitted a report to the HRC in respect of the human rights situation in Kosovo,24 which was reviewed in 2005. The HRC stated that the people of Kosovo had had ICCPR rights when they were governed by Serbia and Montenegro, and that ‘once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding changes in the administration of that territory’.25 Therefore, in that situation the HRC proposed that UNMIK was in fact directly bound by the ICCPR [26.50].26 [4.28]

SAYADI and VINCK v BELGIUM

The authors’ names were placed on the UN Sanctions list by the UN Sanctions Committee of the UN Security Council after the State Party had transmitted their names to that body. As a result, the authors were subjected to serious sanctions in accordance with UN Security Council resolutions, namely travel bans and asset freezes. They successfully claimed that these measures breached various rights, such as Article 12 [12.23] and 17 [16.46]. The State Party had tried to argue that the communication was inadmissible as it essentially concerned the actions of the UN Security Council rather than its own actions: ¶4.12. As for the alleged substantive violations of the Covenant, the State party claims that its role was limited to relaying information about the authors to the Sanctions Committee, as required under United Nations rules. The Sanctions Committee then examined this information and placed the authors on the list. The State party has taken all appropriate measures within its power to have the authors’ names de-listed, consistent with respect for the authors’ fundamental rights as well as United Nations rules. Moreover, the measures to combat the financing of terrorism were adopted by the Security Council under Chapter 23 At the time of writing, the EU is preparing to become a party to the European Convention on Human Rights—see EU accession to the European Convention on Human Rights, at (accessed November 2012). 24 Report Submitted by the United Nations Interim Administration Mission in Kosovo to the Human Rights Committee on the Human Rights Situation in Kosovo since June 1999 (2006) UN doc CCPR/C/ UNK/1. 25 Concluding Observations on Kosovo (2006) UN doc CCPR/C/UNK/CO/1, para 4. 26 See also Concluding Observations on Serbia (2011) UN doc CCPR/C/SRB/CO/2, para 3, reaffirming UNMIK’s responsibility for Kosovo.

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VII of the Charter of the United Nations. The existence of a threat to international peace and security is an exceptional circumstance justifying restrictions on the enjoyment of the individual rights established in international human rights instruments. Article 103 of the Charter provides that ‘in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’. Moreover, the measures adopted to combat the financing of terrorism are not definitive. For example, it is possible to submit a request for an exemption from the assets freeze and the travel ban to the Sanctions Committee. . . .

The HRC majority found the communication admissible as it related to allegations of ICCPR violations, ‘regardless of the source of the obligations implemented by the State party’ [1.87]. Four members dissented on admissibility [1.88], of which Mrs Wedgwood was the most explicit in her reasoning: . . . The authors are complaining about the actions and decisions of the United Nations Security Council, not the acts of Belgium. . . .

[4.29]

On the merits, the HRC stated:

¶10.6. In the present case, the Committee recalls that the travel ban for persons on the sanctions list, particularly the authors, is provided by Security Council resolutions to which the State party considers itself bound under the Charter of the United Nations. Nevertheless, the Committee considers that, whatever the argument, it is competent to consider the compatibility with the Covenant of the national measures taken to implement a resolution of the United Nations Security Council. It is the duty of the Committee, as guarantor of the rights protected by the Covenant, to consider to what extent the obligations imposed on the State party by the Security Council resolutions may justify the infringement of the right to liberty of movement, which is protected by article 12 of the Covenant.

In the result, the HRC found that Belgium’s transmittal of the names was not required by Security Council resolutions, and that Belgium’s actions in doing so were ‘premature and unjustified’.27 Therefore, the HRC effectively decided that the case did concern Belgium’s actions rather than those of the UN Security Council. It is therefore uncertain how the HRC would decide a case where human rights violations were compelled by UN Security Council resolutions. Sayadi probably indicates that the State would be exonerated.28 After all, the final remedy recommended by the HRC was that Belgium compensate the victims and seek their removal from the list: the HRC did not demand that Belgium breach Security Council resolutions by lifting the sanctions immediately [1.90]. [4.30] The HRC’s comments regarding the Belgian contingent of the UN operation in Somalia [4.16], which seemed to imply that a State Party retains ICCPR responsibility for its armed forces even when they are under UN command.29 27

At para 10.7 [1.89]. At para 10.7. See also concurring opinion on the merits from Sir Nigel Rodley [1.91]. 29 See also Kurbogaj v Spain (1374/05), a complaint relating to the behaviour of Spanish troops that were part of the United Nations Interim Administration Mission in Kosovo (UNMIK). Ultimately the communication was inadmissible for a failure to exhaust domestic remedies, so the issue of Spain’s responsibility for the troops did not arise. 28

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[4.31] The admissibility decision in Munaf v Romania (1539/06) [4.34] indicates that States are also responsible for the foreseeable violations of international organisations such as the Multinational Force in Iraq (MNF-I). This resembles the standard applied for the scope of State liability with regard to the acts of other States, discussed directly below.

Liability with Regard to the Acts of Other States [4.32] Article 1 of the OP specifies that complaints must be submitted by victims of violations ‘by that State party’. States Parties are not therefore generally liable for violations of ICCPR rights by other States.30 [4.33]

KINDLER v CANADA (470/91)

The author alleged that his planned extradition by the State Party to the United States, where he faced the possibility of the death penalty, violated the ICCPR [8.67]. The State Party argued that the claim was inadmissible ratione loci, as it essentially concerned the anticipated actions of another State (which was, at the time, not even a State Party to the ICCPR). The HRC disagreed in the following terms: ¶6.2. The Committee considered the contention of the State party that the claim is inadmissible ratione loci. Article 2 of the Covenant requires States parties to guarantee the rights of persons within their jurisdiction. If a person is lawfully expelled or extradited, the State party concerned will not generally have responsibility under the Covenant for any violations of that person’s rights that may later occur in the other jurisdiction. In that sense a State party clearly is not required to guarantee the rights of persons within another jurisdiction. However, if a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that that person’s rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant. That follows from the fact that a State party’s duty under article 2 of the Covenant would be negated by the handing over of a person to another State (whether a State party to the Covenant or not) where treatment contrary to the Covenant is certain or is the very purpose of the handing over. For example, a State party would itself be in violation of the Covenant if it handed over a person to another State in circumstances in which it was foreseeable that torture would take place. The foreseeability of the consequence would mean that there was a present violation by the State party, even though the consequence would not occur until later on. ¶6.3. The Committee therefore considered itself competent to examine whether the State party is in violation of the Covenant by virtue of its decision to extradite the author under the Extradition Treaty of 1976 between the United States and Canada, and the Extradition Act of 1985.

[4.34]

MUNAF v ROMANIA (1539/06)

The author was a dual Iraqi American citizen who was being held in Baghdad at the time of the communication. He was under the custody of MNF-I and/or the US 30

See eg EMEH v France (409/90). See, however, [7.23] on the jurisdictional limits of art 1(3).

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military. At the time of the communication, he had been sentenced to death by the Central Criminal Court of Iraq. That decision was later quashed on appeal. On 15 March 2005, he moved to Iraq from Romania to work as a translator and a guide. Shortly thereafter, he was allegedly abducted by militants and detained for 55 days. He was released to the Romanian embassy which transferred him to the US embassy at his request. The complaint related to Romania’s willingness to so transfer him, when Munaf argued that it should have been aware of real risks of violations to his ICCPR rights, including Articles 6, 7, 9, 10(1), and 14 [4.39]. Romania argued the claim was inadmissible: ¶4.10. The State party . . . argues that the communication is inadmissible under article 1 of the Optional Protocol and article 2, paragraph 1, of the Covenant, as the author was not within its territory and was not subject to its jurisdiction. It submits that the author has not been subject to its jurisdiction since 15 March 2005, when he left the State party to go to Iraq together with the three Romania journalists. Romania was never an occupying power in Iraq, a circumstance which could have raised the issue of Romanian extra-territorial jurisdiction on Iraqi territory and over its citizens. Since his release from kidnapping he has been in the custody of the MNF-I international force acting in the territory of Iraq with the consent and at the request of the Iraqi authorities, while he was tried by the CCCI—a national court of Iraq that operates under Iraqi law. Under the pertinent UN Security Council Resolutions, the MNF-I and the Government of Iraq further agreed that the former would maintain physical custody of pre-trial detainees waiting for criminal prosecution in Iraqi courts under Iraqi law, in light of the fact that many Iraqi prison facilities had been damaged or destroyed during the war. The author has never been under the authority and effective control of the State party, since his arrival in Iraq, as the only foreign authority over the Iraqi territory belongs to MNF-I, acting under a UN mandate. The fact that the State party failed in its efforts to bring the author under its jurisdiction to face charges in Romania or even to obtain a copy of the author’s criminal file in Iraq . . . , demonstrates the lack of authority or control over the author by the State party, from which the lack of jurisdiction over him follows. ¶4.11. The author himself admitted in his communication that he is not under the State party’s jurisdiction, but instead in the ‘physical custody’ of ‘U.S. military officers’, as part of the MNF-I. This is further demonstrated by the author’s appeal solely to the U.S. courts to seek to prevent his delivery by the U.S. authorities at Camp Cropper to the Iraqi authorities. In this regard, it refers to the decisions of the U.S. courts, which asserted that the he was ‘in the custody of a multinational entity’, and thus neither under the jurisdiction of the U.S. nor the State party. ¶4.12. The State party denies that the Romanian Embassy ‘allowed’ U.S. military officers to take custody of the author. The hostages’ release was secured by the MNF-I and not by U.S. military officers. His presence in the Romanian Embassy has no legal significance; he remained in the custody of the MNF-I and was never transferred de jure or de facto into the State party’s jurisdiction. The Romanian authorities had no reason to request the custody of the author, as at the moment of departure from the Embassy he was only to be submitted to a debriefing procedure by the MNF-I. As there was no information at that time to indicate the future initiation of criminal proceedings against him in Iraq, the State party’s authorities could not have known at that time whether there were substantial grounds to believe that he was at risk of torture, ill-treatment or a death sentence, as set out in the Committee’s

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General Comment 31. There was no reason for the State party’s authorities to request that he be delivered into their custody to face charges against him in Romania for his involvement in the kidnapping. Only the next day was he arrested on charges of participation in the kidnapping of the three Romanian journalists. According to the State party, the author had ‘requested to go to the U.S. Embassy’, from which one could infer that it was his will to leave the Romanian Embassy.

The HRC found the communication to be admissible: ¶7.5. The Committee noted the . . . arguments from the State party: that the author was neither in its territory nor subject to its jurisdiction; that he should not be considered a ‘victim’ for the purposes of article 1 of the Optional Protocol; and that the claims are insufficiently substantiated, as they are based on events none of which had taken place at the time the author was removed from the Embassy and of which the State party could accordingly not have been aware. It also noted the argument that such events were not the necessary and foreseeable consequences of his removal from the Embassy, and that the necessary causal link was thus absent. It recalled its prior jurisprudence that a State party may, in principle, be responsible for violations to the rights of an individual by another State if the necessary and foreseeable consequence of the removal of that individual from its jurisdiction is a violation of their rights under the Covenant. It noted in this respect that, relevant to these issues, the State party had already initiated domestic criminal proceedings against the author on the basis of his presumed involvement in the same incident, which is the subject matter of the present communication, and had been involved in the planning and initiation of the mission to secure the hostages’ release. In conclusion, the Committee’s view was that all these issues are intimately connected to the merits of the case and would be best fully resolved at that stage of the communication.

On the merits, no violation was found: ¶14.2. The main issue to be considered by the Committee is whether, by allowing the author to leave the premises of the Romanian Embassy in Baghdad, it exercised jurisdiction over him in a way that exposed him to a real risk of becoming a victim of violations of his rights under articles 6, 7, 9, 10, paragraph 1 and 14 of the Covenant, which it could reasonably have anticipated. The Committee recalls its jurisprudence that a State party may be responsible for extra-territorial violations of the Covenant, if it is a link in the causal chain that would make possible violations in another jurisdiction. Thus, the risk of an extra-territorial violation must be a necessary and foreseeable consequence and must be judged on the knowledge the State party had at the time: in this case at the time of the author’s departure from the Embassy. ¶14.3. While there is disagreement about some of the facts of the case, the following is agreed by both parties: the author was brought to the embassy, where he remained for a few hours; he specifically requested to go to the US embassy on account of his dual citizenship; and he was unaware himself at the time that he might subsequently be charged with a criminal offence in Iraq and thus might have needed the protection of the State party. . . . ¶14.4. Given both the State party’s and author’s responses to the questions addressed by the Committee in its admissibility decision, it is clear that the State party was involved in the initiation and planning stage of the operation to release the hostages, and that the author had been charged (and ultimately subsequently convicted) of having committed criminal offences in the State party’s territory, offences which related to the kidnapping in Iraq itself. The author

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argues that the Iraqi administration had provided some assistance to the State party with respect to the latter’s investigation of the author for crimes committed in Romania. He argues that, as a result of this cooperation, the State party should not have been ‘surprised’ . . . to learn that the author was charged the day after his departure. However, the Committee does not consider that ‘surprise’ can be equated with knowledge, on the part of the State party, that violations of the Covenant were a necessary and forseeable consequence of his departure from the Embassy. Nor does it consider that all of this information, even looking at it in its totality, proves or even suggests that the State party would or should have known, at the time of the author’s departure, that criminal proceedings would subsequently be initiated against him in Iraq. Nor could it have known that the initiation of such proceedings would have run a real risk of him, being convicted in circumstances contrary to article 14, ill-treated contrary to article 7 and/10, being sentenced to death, contrary to article 6, and ultimately executed, in a manner contrary to article 6, paragraph 2. ¶14.5 The Committee notes that at the time of his departure from the embassy, the State party was of the view that the author would merely take part in a de-briefing procedure and had no reason to deny his specific request to go to the US embassy, in particular given his status as a dual national. The Committee considers that the author’s claims that the State party knew otherwise were, and in fact remain, speculative. In this regard, the Committee notes that even since the submission of the communication, the author is no longer under a sentence of death in Iraq, his conviction and sentence having been annulled awaiting further investigation. In addition, by annulling his appeal, the author acknowledges that the Court of Cassation addressed his claims under article 14, concerning the criminal proceedings before the Central Criminal Court of Iraqi. In the Committee’s view, the fact that the proceedings against the author have not yet been completed, and that upon review at least some of his claims have been addressed, lends further support to the State party’s argument that it could not have known at the time of the author’s departure from the Embassy that he ran a risk of his rights under the Covenant being violated. ¶14.6. For the abovementioned reasons, the Committee cannot find that the State party exercised jurisdiction over the author in a way that exposed him to a real risk of becoming a victim of any violations under the Covenant.

The HRC’s admissibility decision was very lenient and quite contentious. The main claim was that Romania exposed Munaf to various human rights violations by allowing him to leave its Iraqi embassy and go into the custody of US and Iraqi authorities. Given Munaf voluntarily left the embassy, such a claim seemed tenuous and it is not surprising that the claim was ultimately defeated on the merits. Munaf had tried to allege other links between Romania and the alleged violations, but only the issue of reasonable foreseeability of consequences was considered by the HRC on the merits. [4.35] Messrs Shearer, Iwasawa, and Sir Nigel Rodley, with whom Mr Kälin essentially agreed in a separate opinion, dissented on admissibility: We limit ourselves to what we consider to be the complete absence of a territorial or jurisdictional nexus between the author and the State party, as required by article 2 of the Covenant. The establishment of such a nexus is essential before a communication with respect to that State is admissible. The facts relevant to this aspect of the case do not appear to be in dispute. The author was brought to the Romanian Embassy in Baghdad together with the other freed hostages by

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officers of the Multinational Force (MNF-1). The three freed hostages remained in the embassy in order for arrangements to be made to repatriate them to Romania. Mr Munaf, who is a dual Iraqi-US national, left the embassy in the company of MNF-1 requesting that he be taken to the US Embassy. Mr Munaf did not request the protection of the Romanian embassy by way of asylum or express a desire to remain there. There is no evidence that he left the embassy otherwise than voluntarily. It was only on the following day that Mr Munaf was detained by the MNF-1 on suspicion of having committed an offence. It can only be concluded, in our view, that the present communication has been artificially constructed as a complaint against Romania, a party to the Optional Protocol, in order indirectly to draw attention to alleged violations of the Covenant by Iraq and the United States. Neither of the latter States are parties to the Optional Protocol and thus the author would be precluded from bringing proceedings against them before the Committee.

[4.36] The HRC has found a number of violations entailed in deportations of persons by States to other States that would result in a foreseeable breach of their article 6 right to life31 or article 7 freedom from torture by that other State.32 However, the HRC has never considered a complaint on the merits regarding deportation of a person who feared a ‘lesser’ human rights violation in the receiving State (eg violation of a derogable right) by the receiving State. [4.37]

GENERAL COMMENT 31

¶12. Moreover, the article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm,33 such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed. The relevant judicial and administrative authorities should be made aware of the need to ensure compliance with the Covenant obligations in such matters.

In General Comment 31, the HRC limits a State’s obligations to a deportee regarding the foreseeable violations by a receiving State to those violations that cause ‘irreparable harm’. Only article 6 and 7 violations are given as examples of such irreparable harm. Reparation and compensation seem to be remedies available to most other ICCPR violations. However, the ‘irreparable’ standard is confusing. If the receiving State is not a party to the ICCPR, and therefore outside the ICCPR’s supervisory mechanisms, does that mean that more violations are classified as ‘irreparable’? [4.38]

In Concluding Observations on Uzbekistan, the HRC stated:34

¶13. The Committee is concerned that there is no prohibition on the extradition or expulsion of individuals, including those seeking asylum in Uzbekistan, to countries where they

31

See [8.67]ff. See discussion of this test in Pillai v Canada (1763/08) [9.100]. 34 (2001) UN doc CCPR/CO/71/UZB. 33

32

See [9.98]ff.

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may be exposed to risk of the death penalty, torture or to cruel, inhuman or degrading treatment or punishment. The State party should ensure that individuals who claim that they will be subjected to torture, inhuman or degrading treatment, or the death penalty in the receiving state, have the opportunity to seek protection in Uzbekistan or at least assured of non-refoulement (arts. 6 and 7 of the Covenant).

These Observations indicate that the Covenant’s prohibition on extradition and deportation extends only to situations where a deportee faces potential abuses of articles 6 and/or 7 in the receiving State.35 [4.39] In Judge v Canada (829/98), the State Party was found to violate article 6(1) by extraditing the author to the United States, where he was under sentence of death [8.69]. One of the author’s complaints concerned the fact that he was not entitled in the United States to appeal his death sentence in person upon his return to that country, as his appeal had been conducted in his absence after he had escaped to Canada. If the United States should refuse to allow an appeal, this might constitute a breach of article 14(5) by the United States. Thus, Judge’s extradition may have exposed him to a foreseeable breach of his article 14(5) rights. The majority did not address this issue. The majority has also avoided the issue in TT v Australia (706/96), Yin Fong v Australia (1442/05), and Munaf v Romania (1539/06). [4.40] In Judge, Mr Solarí Yrigoyen, in a separate opinion, found a breach of article 14(5). Thus, Mr Solarí Yrigoyen clearly believes that States should not expose people to foreseeable breaches of their rights by other States, even when the relevant rights extend beyond those in articles 6 and 7. Mme Chanet, in the same case, stated: In my view, while the Committee can declare itself competent to assess the degree of risk to life (death sentence) or to physical integrity (torture), it is less obvious that it can base an opinion that a violation has occurred in a State party to the Covenant on a third State’s failure to observe a provision of the Covenant. Taking the opposite position would amount to requiring a State party that called into question respect for human rights in its relations with a third State to be answerable for respect by that third State for all rights guaranteed in the Covenant vis-à-vis the person concerned. And why not? It would certainly be a step forward in the realization of human rights, but legal and practical problems would immediately arise. What is a third State, for example? What of States non-parties to the Covenant? What of a State that is party to the Covenant but does not participate in the procedure? Does the obligation of a State party to the Covenant in its relations with third States cover all the rights in the Covenant or only some of them? Could a State party to the Covenant enter a reservation to exclude implementation of the Covenant from its bilateral relations with another State? Even setting aside the complex nature of the answers to these questions, applying the ‘maximalist’ solution is fraught with problems. 35

See also Concluding Observations on Yemen (2002) UN doc CCPR/CO/75/YEM, para 18.

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For while the Committee can ascertain that a State party has not taken any undue risks, and may perhaps give an opinion on the precautions taken by the State party to that end, it can never really be sure whether a third State has violated the rights guaranteed by the Covenant if that State is not a party to the procedure. . . . [The Committee] will need to make a thorough study of the problem of States’ parties obligations under the Covenant in their relations with third States.

Conclusion [4.41] The HRC has taken an expansive view of the territorial and jurisdictional limits of a State’s responsibilities under the ICCPR. This is evinced by its decisions regarding location of the complainant at the time of the complaint, responsibility for the extraterritorial actions of State agents, responsibility for the extraterritorial consequences of its intra-territorial decisions, and responsibility with regard to the actions of private entities within their territories. States have not, however, been held to have any jurisdiction over the actions of international organizations per se, except perhaps in the context of troops operating within peacekeeping forces. Whilst a State’s responsibility over individuals within jurisdiction has been established, it is uncertain whether States have any responsibility for the actions of their nationals abroad, when they act in a private capacity.

5 Consideration Under Another International Procedure • • • •

What Constitutes Another International Procedure? . . . . . . . . . . . . . . . What is Examination of the ‘Same Matter’? . . . . . . . . . . . . . . . . . . . . . Reservations by European Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[5.03] [5.07] [5.08] [5.14]

ARTICLE 5(2)(a), OPTIONAL PROTOCOL The Committee shall not consider any communication from an individual unless it has ascertained that: (a) the same matter is not being examined under another procedure of international investigation or settlement.

[5.01] Article 5(2)(a) precludes the admissibility only of complaints under the First Optional Protocol (OP) that are being concurrently considered by an international body that is comparable to the Human Rights Committee (HRC). For example, in LESK v The Netherlands (381/89), the same matter had previously been considered by the European Commission on Human Rights. As the case was not under simultaneous examination elsewhere, it did not matter that it had previously been declared inadmissible by another body.1 Furthermore, article 5(2)(a) will not apply where the complaint laid before the other international body has been withdrawn.2 [5.02] Nor does it matter if the other body has concluded its merits decision; this will not preclude admissibility before the HRC.3 Davidson disapproves, arguing that this interpretation increases the likelihood of divergent international human rights opinions, which might lead to human rights ‘forum shopping’ and a loss of respect for international human rights bodies.4 However, the HRC’s interpretation accords with a literal interpretation of article 5(2)(a): a concluded case ‘is not being examined’ within the wording of article 5(2)(a). 1 See also eg HvdP v The Netherlands (217/86); RLA W v The Netherlands (372/89); CBD v The Netherlands (394/90); Nikolov v Bulgaria (824/98). 2 Millán Sequeira v Uruguay (6/77), para 6; Torres Ramirez v Uruguay (4/77), para 9; and Thomas v Jamaica (321/88), para 5.1. 3 See Wright v Jamaica (349/89), where the author’s situation had previously been found to violate the Inter-American Convention on Human Rights. See also Pezoldova v Czech Republic (757/97), para 6.6. 4 JS Davidson, ‘The Procedure and Practice of the Human Rights Committee under the First Optional Protocol to the International Covenant on Civil and Political Rights’ (1991) 4 Canterbury Law Review 337 at 348.

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What Constitutes Another International Procedure? [5.03]

BABOERAM et al v SURINAME (146, 148–154/83)

In this case the Committee considered a number of communications jointly as they related to the same events. In each instance the State Party objected to the admissibility of the claims on the basis that the communications were allegedly being considered under another international procedure. The HRC found all of the cases admissible in the following terms: ¶9.1. With respect to the admissibility of the communications the Human Rights Committee observed first that a study by an intergovernmental organization either of the human rights situation in a given country (such as that by [the Inter-American Commission on Human Rights] in respect of Suriname) or a study of the trade union rights situation in a given country (such as the issues examined by the Committee on Freedom of Association of the ILO in respect of Suriname), or of a human rights problem of a more global character (such as that of the Special Rapporteur of the Commission on Human Rights on summary or arbitrary executions),5 although such studies might refer to or draw on information concerning individuals, cannot be seen as being the same matter as the examination of an individual case within the meaning of article 5, paragraph 2(a), of the Optional Protocol. Secondly, a procedure established by non-governmental organizations (such as Amnesty International, the International Commission of Jurists or the [International Committee of the Red Cross], irrespective of the latter’s standing in international law) does not constitute a procedure of international investigation or settlement within the meaning of article 5, paragraph 2(a), of the Optional Protocol. Thirdly, the Human Rights Committee ascertained that, although the individual cases of the alleged victims had been submitted to IACHR (by an unrelated third party) and registered before that body, collectively, as case No. 9015, that case was no longer under consideration. Accordingly, the Human Rights Committee concluded that it was not barred by the provisions of article 5, paragraph 2(a), of the Optional Protocol from considering the communications.

[5.04] In A v S (1/76) the Committee held that the ECOSOC Resolution 1503 procedure was not classified as a procedure within the meaning of article 5(2)(a); it was not designed to redress individual claims, but rather to redress more large-scale systemic abuses, in particular ‘consistent patterns of human rights violations’.6 Similarly, admissibility in Celis Laureano v Peru (540/93) was not precluded by its simultaneous consideration by a United Nations Working Group on Enforced and Involuntary Disappearances.7 In Bandajevski v Belarus (1100/02), the HRC similarly found that the UNESCO complaints procedure was not a ‘procedure of international investigation and settlement’ for the purposes of article 5(2)(a).8 [5.05] In Polay Campos v Peru (577/94), the case was admissible despite its registration before the Inter-American Commission on Human Rights. The 5 See also Marcellana and Gumanoy v Philippines (1560/07), para 6.3; Hernandez v Philippines (1559/07), para 6.4. 6 See also Poma Poma v Peru (1457/06), para 6.2; Randolph v Togo (901/00), para 8.4. 7 At para 7.1. See also El Abani v Libya (1640/07), para 6.2; Madoui v Algeria (1495/06), para 6.2. 8 At para 5.

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Commission, however, ‘had no plans to prepare a report on the case within the next twelve months’. As the Inter-American proceedings were currently inactive, the HRC found the case was not precluded from admissibility by article 5(2)(a). [5.06] Therefore, it seems that only individual complaints proceedings before other United Nations human rights treaty bodies, like the Committee Against Torture, or individual proceedings before regional human rights bodies, namely the bodies under the European and American Conventions on Human Rights and the African Charter, will constitute ‘procedures of international investigation or settlement’ for the purposes of article 5(2)(a) OP.

What is Examination of the ‘Same Matter’? FANALI v ITALY (75/80)

[5.07]

In this case the Committee was asked to decide on the admissibility of a communication where the authors, co-defendants in a prior domestic trial, had already raised similar issues to the author before the European Commission of Human Rights. The Committee found the case admissible, and gave a very clear indication of what constituted the ‘same matter’ for the purposes of article 5(2)(a) OP, in their admissibility decision: ¶7.2. With regard to article 5 (2) (a) of the Optional Protocol, the Committee did not agree with the State party’s contention that ‘the same matter’ had been brought before the European Commission on Human Rights since other individuals had brought their own cases before that body concerning claims which appeared to arise from the same incident. The Committee held that the concept of ‘the same matter’ within the meaning of article 5 (2) (a) of the Optional Protocol had to be understood as including the same claim concerning the same individual, submitted by him or someone else who has the standing to act on his behalf before the other international body. Since the State party itself recognized that the author of the present communication had not submitted his specific case to the European Commission of Human Rights, the Human Rights Committee concluded that the communication was not inadmissible under article 5 (2) (a) of the Optional Protocol.

The Fanali case was followed in Blom v Sweden (191/85), Sánchez López v Spain (777/97), and Akwanga v Cameroon (1813/08). Similarly, in Millán Sequeira v Uruguay (6/77), a two-line reference in a case before the Inter-American Commission on Human Rights to Mr Millán Sequeira, ‘in a similar manner [to] the names of hundreds of other persons allegedly detained in Uruguay . . . did not constitute the same matter as that described in detail by the author in his communication to the Human Rights Committee’.9 In Sayadi and Vinck v Belgium (1472/06), the HRC confirmed that that the UN Sanctions Committee was not a relevant international body for the purpose of article 5(2)(a), as the relevant petition to remove the authors from the list was put by the State rather than the authors themselves.10

9

At para 9.

10

At para 7.3.

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Reservations by European Parties [5.08] The crux of article 5(2)(a) is that the Committee cannot consider communications which are simultaneously being heard by another international body. The OP does not preclude the Committee from examining communications which have been previously considered by another body. However, many European States have made a reservation which denies the HRC competence to re-examine communications which have been considered under an alternative international procedure. The obvious intent behind these reservations is to prevent the possibility of ‘appeal’ from the European Convention bodies to the HRC.11 In numerous cases, the reservations have succeeded in rendering a communication inadmissible.12 [5.09] Most such reservations were entered at a time when complaints under the European Convention proceeded to the European Commission on Human Rights at first instance. The Commission has now been abolished, and communications are now submitted directly to the reconstituted European Court. In Kollar v Austria (989/01), the HRC confirmed that the Austrian reservation, which expressly applied only to cases that had been before the European Commission, would be read as applying to cases before the European Court, seeing as the latter body had succeeded to the functions of the now defunct Commission.13 [5.10]

PETERSON v GERMANY (1115/02)

This communication was a complaint by a father whose child was born out of wedlock. The complaint concerned the alteration of the child’s surname without the consent of, or even consultation with, the father. He alleged his rights regarding the right to a fair hearing (article 14), family life (article 17), and non-discrimination (article 26) were breached. He had earlier petitioned the European Court of Human Rights, which had found his complaint inadmissible on a number of grounds. Germany argued before the HRC that the complaint was inadmissible due to its reservation to article 5(2)(a), which precluded the admissibility of a communication which had ‘already been considered by’ the European Court. The HRC only agreed with Germany in part. ¶6.3. [The Committee] observes that Application no. 31180/96 was submitted to the European Court by the same author, was based on the same facts and related, at least in part, to the same substantive rights as those raised in the present communication, as articles 6 and 8 of the European Convention are similar in scope and content to articles 14 and 17 of the Covenant. ¶6.4. . . . The Committee recalls its jurisprudence that where the Strasbourg organs have based a declaration of inadmissibility not solely on procedural grounds, but on reasons that

11 PR Ghandhi, The Human Rights Committee and the Right of Individual Communication (Ashgate, 1998), 228. See Ch 25 generally on reservations, and especially [26.30]ff. 12 See eg VØ v Norway (168/84) and Linderholm v Croatia (744/97). 13 At paras 8.2–8.3. See also Althammer v Austria (998/01), para 8.3; Mahabir v Austria (944/00), para 8.2; and Wallman v Austria (1002/01), para 8.6.

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comprise a certain consideration of the merits of the case, then the same matter has been ‘examined’ within the meaning of the respective reservations to article 5, paragraph 2 (a), of the Optional Protocol. ¶6.5. Insofar as the author alleges that the change of his son’s surname and the dismissal of his compensation claim violate his right to respect to family life under article 17, in conjunction with his procedural rights under Article 14, of the Covenant, the Committee notes that the European Court declared the analogous complaint inadmissible as manifestly ill-founded, pursuant to article 35, paras. 3 and 4, of the European Convention. The Court based its finding on the fact that the child had never borne the author’s surname, which therefore had never constituted an outer sign of a bond between the author and his son. With regard to the compensation claim, the Court found that the issue concerned primarily a financial matter, which did not serve to obtain a decision on access or enforcement of access to his child. Consequently, the dismissal of the compensation claim did not affect the author’s right to respect for family life. The Committee concludes that, in examining the author’s complaints under article 8 of the European Convention, the European Court went beyond an examination of purely procedural admissibility criteria. The same is true regarding his complaints under article 6 of the European Convention, which related to the necessity of a public hearing and the public announcement of the judgments of the Braunschweig District and Regional Courts, and thus concerned aspects of article 6 of the European Convention which are similar in content and scope to article 14 of the Covenant. This part of the communication has therefore already been ‘considered’, within the meaning of the State party’s reservation.

Thus, substantive inadmissibility (eg a finding by the European Court that a claim is ‘manifestly ill-founded’) is distinguished from procedural inadmissibility under the European Convention on Human Rights (ECHR) (eg non-exhaustion of domestic remedies) for the purposes of deciding whether the standard European reservation has precluded OP inadmissibility. The reservations generally apply to preclude findings of the former sort but not the latter, as in the case of the latter, the European submission is not really ‘examined’ or ‘considered’ at all by the Court.14 [5.11] In Peterson, the HRC went on to consider the relevance of the German communication to the author’s article 26 claim. ¶6.6. To the extent that the author claims, under article 26 of the Covenant, that he was discriminated against, in comparison with the child’s mother or to fathers of children born in wedlock, the Committee notes that the European Court declared similar claims by the author inadmissible ratione materiae, since there was no room for the application of article 14 of the European Convention. . . . The Committee recalls its jurisprudence that, if the rights invoked before the European Court of Human Rights differ in substance from the corresponding Covenant rights, a matter that has been declared inadmissible ratione materiae has not, in the meaning of the respective reservations to article 5, paragraph 2 (a), been considered in such a way that the Committee is precluded from examining it.

14 See also Trébutien v France (421/90); Glaziou v France (452/91); Valentijn v France (584/94); Pauger v Austria (716/96); Kollar v Austria (989/01); Weiss v Austria (1086/02); and Pindado Martínez v Spain (1490/06).

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¶6.7. The Committee recalls that the independent right to equality and non-discrimination in article 26 of the Covenant provides greater protection than the accessory right to non-discrimination contained in article 14 of the European Convention. It notes that, in the absence of any independent claim made under the Convention or its relevant Protocols, the European Court could not have examined whether the author’s accessory rights under article 14 of the Convention had been breached. Consequently, the author’s claims in relation to article 26 of the Covenant have not been considered by the European Court. It follows that the Committee is not precluded by the State party’s reservation to article 5, paragraph 2 (a), of the Optional Protocol from examining this part of the communication.

Thus, the European reservations only oust the HRC’s jurisdiction with regard to communications in which similar substantive rights have been considered by the European Court. As noted above, for example, the European versions of the right to a fair trial15 and family life are similar to the equivalent versions in the ICCPR. As they had been considered and rejected (on substantive rather than mere procedural grounds) by the European Court, those complaints were rendered inadmissible by the German reservation.16 However, the right of non-discrimination in article 26 is a much broader right than the European equivalent raised in Peterson, article 14 of the European Convention.17 As the European Court had not considered Peterson’s complaint with regard to an equivalent right, the reservation did not apply to that part of the communication.18 [5.12]

MAHABIR v AUSTRIA (944/00)

The principles regarding applicability of the European reservations outlined in Peterson were restated succinctly in this case. ¶8.3. As to the question of whether the European Court has ‘examined’ the matter, the Committee recalls its jurisprudence that where the Strasbourg organs have based a decision of inadmissibility not solely on procedural grounds, but on reasons that involve even limited consideration of the merits of the case, the same matter has been ‘examined’ within the meaning of the respective reservations to article 5, paragraph 2 (a), of the Optional Protocol. It considers that, in the present case, the European Court proceeded beyond an examination of purely procedural admissibility criteria, finding that the author’s application ‘[did] not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols’. . . . ¶8.5. However, the European Court was able to examine the same matter only insofar as the substantive rights protected under the European Convention converge with those protected under the Covenant, and to the extent that the events complained occurred prior to 18 May 1999, when the author filed his application with the European Court. The Committee 15 In fact, the ICCPR does guarantee more fair trial rights than the European Convention. For example, the right of appeal is not guaranteed in art 6 of the European Convention as it is in art 14(5) of the ICCPR (though Protocol No 7 to the Convention has since added a right of appeal in art 2). The right of appeal was not, however, at issue in Peterson. 16 See also Fernández v Spain (1396/05), para 6.2. 17 See [23.17]. An equivalent right of non-discrimination is now found in Protocol No 12 to the ECHR. 18 See also Althammer v Austria (998/01); Karakurt v Austria (965/00); and Casanovas v France (441/90).

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observes that articles 8 and 17 of the Covenant largely converge with articles 4 and 8 of the European Convention. However, neither the European Convention nor its Protocols contain provisions equivalent to articles 10 and 26 of the Covenant. Accordingly, the Committee considers that the State party’s reservation applies insofar as the case raises issues under articles 8 and 17 of the Covenant and to the extent that it relates to events which took place prior to 18 May 1999. This part of the communication is therefore inadmissible under article 5, paragraph 2 (a), of the Optional Protocol.

[5.13]

LOTH v GERMANY (1754/08)

This communication concerned an allegation of discrimination in relation to the enjoyment of the right to property. ¶6.4. The Committee also recalls that the independent right to equality and non-discrimination in article 26 of the Covenant provides greater protection than the accessory right to non-discrimination contained in article 14 of the European Convention, which has to be claimed in conjunction with another right protected under the Convention or its relevant Protocols. However the Committee notes that the authors are claiming to have been broadly discriminated against on the basis of the deceased’s property title. It also notes that the European Court has examined whether the deceased was discriminated against in connection with the enjoyment of her property. . . . Consequently, the Committee concludes that the ‘same matter’ has been considered by the European Court, within the meaning of the State party’s reservation. It follows that the Committee is precluded by the State party’s reservation to article 5, paragraph 2 (a), of the Optional Protocol from examining the present communication.

As noted above, the scope of article 26 of the ICCPR is much broader than the non-discrimination right in the European Convention, article 14 [5.11]. Nevertheless, Loth’s claim was found to be inadmissible as her particular non-discrimination claim regarding the right to property was heard, and rejected, by the European Court. Her article 26 claim concerned that same matter. Though the European discrimination provision was narrower than that in the ICCPR, it was broad enough to cover the claim in question. Therefore, the crucial issue in such cases is not only the breadth of the relevant rights, but the breadth of the relevant claims.19

Conclusion [5.14] Article 5(2)(a) of the OP precludes the admissibility of cases which are being simultaneously considered by a comparable human rights body, in a procedure which is analogous to the OP procedure. Once such consideration has ceased, article 5(2)(a) poses no obstacle to admissibility. However, a number of European parties have entered a reservation to the OP, precluding admissibility where the matter has been considered by a comparable human rights body, even where such consideration is complete. These reservations have blocked the HRC 19

See also Linderholm v Croatia (744/97).

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from acting as an ‘appeals’ body from the European Convention bodies in a number of communications. However, the HRC has read them narrowly. For example, the reservations do not apply unless the European Court of Human Rights has given substantive consideration to the relevant claims, as opposed to dismissal on purely procedural grounds. Further, the reservation will not apply if a claim is such that it falls within ICCPR rights and outside the scope of rights under the ECHR.

6 Exhaustion of Domestic Remedies • • • • • •

What Sort of Remedies must be Exhausted? . . . . . . . . . . . . . . . . . . . . . How must Remedies be Exhausted? . . . . . . . . . . . . . . . . . . . . . . . . . . . . No Requirement to Exhaust Futile Remedies . . . . . . . . . . . . . . . . . . . . . Must Authors Exhaust Costly Remedies? . . . . . . . . . . . . . . . . . . . . . . . Unreasonable Prolongation of Remedies . . . . . . . . . . . . . . . . . . . . . . . . Exhaustion of Domestic Remedies Requirement in Cases of State Succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[6.03] [6.09] [6.19] [6.28] [6.32] [6.40] [6.44] [6.49]

ARTICLE 5(2)(b), FIRST OPTIONAL PROTOCOL The Committee shall not consider any communication from an individual unless it has ascertained that . . . the individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged.

[6.01] This rule of admissibility ensures that States Parties are furnished with an opportunity to correct any municipal human rights abuses before the matter is addressed at the international level. The Human Rights Committee (HRC) spelt out the rationale behind article 5(2)(b) in TK v France (220/87):1 ¶8.3. The purpose of article 5(2)(b) of the Optional Protocol is, inter alia, to direct possible victims of violations of the provisions of the Covenant to seek, in the first place, satisfaction from the competent State party authorities and, at the same time, to enable State parties to examine, on the basis of individual complaints, the implementation, within their territory and by their organs, of the provisions of the Covenant and, if necessary, remedy the violations occurring, before the Committee is seized of the matter.

[6.02] A State may choose to waive the domestic remedies requirement, as occurred in Rajan and Rajan v New Zealand (820/98).2 In such circumstances, remaining ‘domestic remedies’ will not be a barrier to OP admissibility.

What Sort of Remedies must be Exhausted? [6.03]

PATIÑO V PANAMA (437/90)3

¶5.2. . . . For the purposes of article 5(2)(b) of the Optional Protocol, an applicant must make use of all judicial or administrative avenues that offer him a reasonable prospect of redress. 1 3

See also MK v France (222/87), para 8.3. See also Thompson v Panama (438/90), para 5.2.

2

See paras 6.2 and 7.2.

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¶7.4. . . . The Committee observes that article 5, paragraph 2 (b), of the Optional Protocol, by referring to ‘all available domestic remedies’, clearly refers in the first place to judicial remedies. . . .

Therefore, local remedies are usually deemed to be exhausted when a final judicial decision has been rendered, and there remains no available appeal.4 VICENTE et al v COLOMBIA (612/95) ¶5.2. . . . The Committee considered that the effectiveness of a remedy also depended on the nature of the alleged violation. In other words, if the alleged offence is particularly serious, as in the case of violations of basic human rights, in particular the right to life, purely administrative and disciplinary measures cannot be considered adequate and effective. . . .

Whilst the Patiño statement confirms that non-judicial remedies may occasionally have to be exhausted, RT verifies that judicial remedies are considered the remedies most likely to be effective, and are therefore the most relevant remedies for the purposes of article 5(2)(b). Vicente confirms that judicial remedies are essential for allegations of egregious abuses such as killing and torture. The HRC has evinced greater suspicion of the efficacy of executive remedies, and is less likely to require their exhaustion. For example, in Ellis v Jamaica (276/88), the HRC found that the availability to a prisoner on death row of a petition for mercy to the Governor-General was not a ‘domestic remedy within the meaning of article 5(2) (b)’.5 Similarly, as indicated in Muhonen v Finland (89/81), the HRC is suspicious of the efficacy of ‘extraordinary remedies’ [6.48]. Ongoing political negotiations between indigenous tribes and the government were not a relevant outstanding remedy for the purposes of article 5(2)(b) in Howard v Canada (979/99), a case concerning Indigenous fishing rights. [6.05] The HRC appeared to take a more lenient attitude regarding the effectiveness of administrative remedies in the following case. JONASSEN et al v NORWAY (942/00) The communication concerned a land rights claim by a group of indigenous Sami people in Norway [24.42]. The authors had exhausted all available judicial remedies, but administrative remedies remained available in the form of an application to the government to expropriate the relevant lands. The HRC majority found in favour of the State Party on the article 5(2)(b) issue: ¶8.6. Regarding the State party’s allegation under article 5, paragraph 2 (b) of the Optional Protocol, that the authors have failed to exhaust domestic remedies, the Committee notes 4 A Conçado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law: its Rationale in the International Protection of Individual Rights (Cambridge University Press, 1983), 58. 5 At para 9.1. See also Chisanga v Zambia (1132/02), para 6.3; Singarasa v Sri Lanka (1033/01), para 6.5.

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that the State party has argued that the authors have not exhausted the remedy of claiming expropriation to the administrative authorities. Although the authors have pursued the domestic judicial remedies in their disputes with the landowners in the ‘Tamnes Case’, the ‘Aursunden Case 1997’ and the ‘Korssjofjell Case’, their petitions for expropriation in the two latter cases are still pending, whereas the authors have not petitioned for expropriation in the former case. The Committee recalls that for the purpose of article 5, paragraph 2 (b) of the Optional Protocol, an applicant must make use of all judicial or administrative avenues that offer him a reasonable prospect of redress. The application for expropriation, a remedy provided by the 1996 law, is still pending. It would therefore appear that domestic remedies have not been exhausted. ¶8.7. However, the question is whether the application of these remedies has been unreasonably prolonged. The Committee notes the authors’ argument that they have pursued domestic judicial remedies for more than a century and that their petitions for expropriation, which were initiated in 1998 and 1999, are still pending, making the avenues for a remedy unreasonably prolonged. ¶8.8. The Committee considers that the period of time it has taken for the authors to obtain a remedy, may not be gauged from the time the Samis have litigated grazing rights, but from the time the authors themselves have sought a remedy. The Committee notes that the authors brought their claims for expropriation on 2 April 1998 in the ‘Aursunden Case’ and on 9 April 1999 in the ‘Korssjofjell Case’. As part of the process, a negotiation was established which recommended an agreement in February 2000, but this agreement was rejected in May 2000. This forced the authorities to reopen the expropriation procedure. ¶8.9. The Committee considers that the amendment of the Reindeer Husbandry Act and the subsequent negotiations aiming at providing a remedy for the authors, provide a reasonable explanation for the length of the examination of the authors’ claim. It cannot conclude that the Norwegian legislation, obliging the authors to follow the procedure of settling their claims with the landowners before bringing a claim of expropriation, is unreasonable. The Committee also notes that while the authors have been subjected to one case of a criminal charge for illegal use of the disputed land for which they have been acquitted, they have been able to continue their reindeer herding to the same extent as before the relevant Supreme Court judgements. The Committee therefore cannot conclude that the application of domestic remedies has been unduly prolonged. The authors’ claim under article 27 is inadmissible for the non-exhaustion of domestic remedies, under article 5, paragraph 2 (b) of the Optional Protocol. ¶8.10. The Committee is of the opinion that given the new remedy provided by the 1996 law, the claim must be considered inadmissible. Nevertheless, the State party is urged to complete all proceedings regarding the authors’ herding rights expeditiously.

[6.06] Messrs Henkin, Scheinin, and Solari Yrigoyen dissented, and argued that the communication should have been admissible under article 27: First and foremost, we do not agree that petitioning the administrative authorities of the State party, for the purpose that they institute expropriation proceedings to secure the reindeer herding rights of the authors, is at all an effective remedy within the meaning of article 5 (2) (b) of the Optional Protocol. The authors have already exhausted one line of judicial remedies by having their case adjudicated up to the Supreme Court. The authors are not even a party in the expropriation proceedings . . . , which, therefore, cannot be taken

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as constituting an effective domestic remedy to be pursued by the authors. At most, the authors have exhausted their additional remedy related to expropriation simply by filing the petition in a manner that allows the initiation of the expropriation proceedings. What results from those expropriation proceedings, and within which time frame, would be a matter for the consideration of merits when the Committee addresses the State party’s measures aimed at giving effect to the article 27 rights of the authors. Secondly, even assuming that the actual expropriation proceedings constitute a remedy that needs to be exhausted by the authors, those proceedings are already unreasonably prolonged within the meaning of the last sentence of article 5, paragraph 2, of the Optional Protocol. After losing the Aursunden case in the Supreme Court—which process itself required some time—the authors filed their petition for expropriation on 2 April 1998. Almost three years later, on 26 March 2001, the proposed settlement was rejected by the landowners. Although the State party has since then made a submission to the Committee on 7 March 2002, it has not even informed the Committee of any later developments, given any explanation for the delay of four and a half years since the authors filed their petition, or presented any prospect of the time frame within which the matter will be decided. In the circumstances, the Committee should conclude that the remedy is unreasonably prolonged. Thirdly, it appears that the article 27 rights of the authors are being affected by the Supreme Court rulings against them. Herding in areas previously used by them has become illegal, and the authors are subject to the risk of further legal proceedings and legal sanctions if they continue to herd their reindeer in those areas. It has not even been argued that the outcome of the expropriation proceedings would be relevant as a remedy for this part of the authors’ claim under article 27. Finally, in addition to the legal arguments above, there is also a reason of policy. Non-exhaustion of domestic remedies is a recoverable ground for inadmissibility. Even the majority of the Committee alludes to Rule 92.2 of the Committee’s Rules of Procedure, according to which the authors may later request the Committee to review its inadmissibility decision. We find it unreasonable to declare the communication inadmissible although there is a clear expectation that the authors will in the near future request revitalization of their case.

Indigenous land rights claims commonly involve attempts by indigenous persons to redress historical injustices, such as long-standing dispossession by colonizers. Often the law of the relevant State, and therefore the available judicial remedies, will be ill-equipped to respond to such claims, as it will entrench the colonization. The State Party in Jonassen chose to address these historical inequities by providing for administrative remedies, rather than legislative amendments. This tactic was endorsed by the HRC majority in its admissibility decision. The HRC should have explained more clearly why purely administrative procedures, which had yet to reach a conclusion after five years (after several years of litigation), were deemed sufficient to potentially remedy the alleged abuses in this instance. [6.07]

C v AUSTRALIA (900/99)

¶7.3. As to the question of exhaustion of domestic remedies, the Committee notes the State party’s argument that the certain administrative remedies (the Commonwealth Ombudsman and [the Human Rights and Equal Opportunity Commission]) have not been pursued by the

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author. The Committee observes that any decision of these bodies, even if they had decided the author’s claims in his favour, would only have had recommendatory rather than binding effect, by which the Executive would, at its discretion, have been free to disregard. As such, these remedies cannot be described as ones which would, in terms of the Optional Protocol, be effective.

Thus, remedies for the purposes of article 5(2)(b) OP must have a binding obligatory effect.6 [6.08]

CF v CANADA (118/81)

¶6.2. . . . The Covenant provides that a remedy shall be granted whenever a violation of one of the rights guaranteed by it has occurred; consequently, it does not generally prescribe preventive protection, but confines itself to requiring effective redress ex post facto. . . .

Whilst ex post facto remedies are generally accepted as remedies which must be exhausted before recourse may be had to the HRC via the Optional Protocol (OP), there are occasions where such remedies will be deemed ineffective, as in the case of Ominayak v Canada (167/84) [6.22].

How must Remedies be Exhausted? [6.09] A prospective OP complainant is required to have raised the substance of his/her ICCPR complaint before local authorities, before his/her OP complaint will be held admissible. This principle is evinced in the following case excerpts. GRANT v JAMAICA (353/88) ¶5.1. . . . With regard to the author’s claims concerning the conditions of detention on death row, the Committee noted that he had not indicated what steps, if any, he had taken to submit his grievances to the competent prison authorities, and what investigations, if any, had been carried out. Accordingly, the Committee found that in this respect domestic remedies had not been exhausted.

PERERA v AUSTRALIA (541/93) ¶6.5. With regard to the author’s claim that the appeal against his retrial was unfair, because one of the judges had participated in his prior appeal against the first conviction, the Committee notes that the judge’s participation on appeal was not challenged by the defence and that domestic remedies with respect to this matter have thus not been exhausted. This part of the communication is therefore inadmissible. ¶6.6. As regards the author’s claim about the failure to provide him with the services of an interpreter, the Committee notes that this issue was never brought to the attention of the courts, neither during the trial, nor at appeal. This part of the communication is therefore inadmissible for failure to exhaust domestic remedies, under article 5, paragraph 2(b), of the Optional Protocol. 6

See also Kanganamge v Sri Lanka (909/00), para 6.3.

126 [6.10]

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¶6.3. . . . The Committee observes that whereas authors must invoke the substantive rights contained in the Covenant, they are not required, for the purposes of the Optional Protocol, necessarily to do so by reference to specific articles of the Covenant.

This aspect of the BdB decision has been followed in Van Alphen v Netherlands (305/88), Henry v Jamaica (230/87), and Little v Jamaica (283/88). Thus, the semantics of one’s domestic complaint are not decisive in determining whether one has properly alerted domestic authorities to potential breaches of one’s ICCPR rights. For example, a complaint to the HRC regarding the arbitrariness of an arrest will not be inadmissible under article 5(2)(b) if that arrest has been challenged in domestic forums; there is no necessity for the complainant specifically to invoke article 9 ICCPR. Furthermore, an OP author is only required to raise ICCPR issues before domestic forums; the author is not required to ensure the due consideration of those issues by such forums.7 [6.11] In Crochet v France (1777/08), two sets of proceedings had been conducted against the author, one criminal and one administrative. His complaint related only to the former set of proceedings, so he only had to exhaust remedies with regard to the first rather than both sets of proceedings. [6.12] Certain domestic remedies may have to be implemented within a certain time period. For example, a person may have only a limited time in which they can seek to appeal a lower court’s decision to a higher court. In general, it is up to the author to ensure his/her compliance with domestic procedural requirements. APA v SPAIN (433/90) The author was complaining about alleged breaches of his right to a fair trial. He details his attempts to exhaust domestic remedies below. ¶2.3. The author appealed to the Supreme Court of Spain on procedural grounds. On 2 June 1989, the Supreme Court confirmed the judgement of first instance. Allegedly because of summer holidays, the author was not notified of the Supreme Court’s decision until 11 September 1989, that is considerably after the expiration of the deadline of 20 working days allowed for the filing of a constitutional motion against the decision (recurso de amparo). ¶2.4. On 15 January 1990, A.P.A. appealed to the Constitutional Tribunal, alleging a breach of article 24 of the Constitution, which guarantees the right to a fair trial. On 26 February 1990, the Constitutional Tribunal declared the amparo inadmissible, as statutory deadlines for the filing of the motion had expired. ¶2.5. In the above context, the author notes that during the month of August, the Spanish judicial system is virtually paralysed because of summer holidays. For this reason, article 304 of the Spanish Civil Code stipulates that the month of August is not counted for the purpose of determining deadlines for the filing of appeals. Article 2 of an agreement (Acuerdo de Pleno) of 15 June 1982, however, stipulates that for the purpose of a number of procedures 7

See eg Henry v Jamaica (230/87), para 7.2; Little v Jamaica (283/88).

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before the Constitutional Tribunal, including amparo proceedings, August does count for the determination of such deadlines.

The HRC nevertheless found that the author had failed to exhaust domestic remedies. ¶6.2. The Committee has noted the parties’ arguments relating to the question of exhaustion of domestic remedies. It notes that while the month of August does not count for the determination of deadlines in the filing of most criminal appeals, it does count under regulations governing amparo proceedings before the Constitutional Tribunal. While it is true that local remedies within the meaning of article 5, paragraph 2 (b), of the Optional Protocol must only be exhausted to the extent that they are both available and effective, it is an established principle that an accused must exercise due diligence in the pursuit of available remedies. In this context, the principle that ignorance of the law excuses no one—ignorantia iuris neminem excusat—also applies to article 5, paragraph 2(b), of the Optional Protocol. ¶6.3. In the instant case, the decision of the Supreme Court of 2 June 1989 was duly notified to the author’s counsel. The author claims that counsel did not inform him of this notification until after the expiration of the amparo proceedings deadline. Nothing in the file before the Committee indicates that author’s counsel was not privately retained. In the circumstances, counsel’s inaction or neglect in communicating the Supreme Court’s judgement to his client cannot be attributed to the State party but must be attributed to the author; the Committee does not consider that, under article 14 of the Covenant, it was incumbent upon the Supreme Court’s registry or upon the Prosecutor’s office to directly notify the author personally of the decision of 2 June 1989 in the circumstances of the case. It must, accordingly, be concluded that local remedies were not pursued with the requisite diligence and, therefore, that the requirements of article 5, paragraph 2(b), of the Optional Protocol have not been met.

The HRC has confirmed on numerous occasions that a failure to comply with statutory time limits for local remedies will render a communication inadmissible under Article 5(2)(b) if that failure is the fault of the author or his/her legal counsel.8 In Pingault-Parkinson v France (1768/08), the communication was inadmissible under Article 5(2)(b) as the author had applied to the wrong French courts for the wrong remedy, and France could not be held responsible for her errors.9 [6.13]

SOLTES v CZECH REPUBLIC and SLOVAKIA (1034–1035/01)

Unusually, this case was brought simultaneously against two State Parties [1.50] The author had failed to exhaust his final remedy in the Czech Republic as he was unaware of the establishment of a new court, the Constitutional Court of the Czech Republic, upon the splitting of Czechoslovakia into two States. The HRC duly found the communication inadmissible: ¶7.4 On the issue of exhaustion of domestic remedies . . . the Committee has noted the arguments advanced by the State party and the explanation given by the author that he had brought his claim before all instances of the Czech legal system, except to the Constitutional 8 See eg Aduhene and Agyeman v Germany (1543/07), para 6.2; PL v Germany (1003/01); Bhullar v Canada (982/01), para 7.3; Lim v Australia (1175/03), para 6.2; CP and MP v Denmark (CERD 5/94), para 6.2; and Barbaro v Australia (CERD 7/95), para 10.4. 9 At paras 10.1–10.3.

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Court of whose existence he allegedly was unaware, and exhausted all domestic remedies available to him in the Czech Republic. The Committee notes that the Constitutional Court existed at the time the Supreme Court ruled against the author, and was in fact accepting constitutional complaints. . . . [T]he fact of being unaware, as a foreigner or otherwise, of the existence of a constitutional court does not exempt an individual from the duty to exhaust available domestic remedies, save in cases where the specific circumstances would have made it impossible to obtain the necessary information or assistance. Given that the author had legal representation throughout the Czech legal proceedings and that the Constitutional Court had jurisdiction over the fair trial issues raised, the Committee considers that neither exception applies to the author’s case. Accordingly, the Committee considers that the author has not shown why he could not have reasonably been expected to challenge the Supreme Court’s decision in the Constitutional Court. The Committee thus concludes that as far as the communication might give rise to a claim under the Covenant, domestic remedies have not been exhausted for the purposes of [article] 5, paragraph 2(b) of the Optional Protocol.

[6.14] In Griffin v Spain (493/92), the author’s failure to seek a relevant remedy within a statutory time period was not held against him, as his court-appointed lawyer had failed to inform him of this remedy (indeed, the lawyer had not contacted him at all).10 Griffin indicates that authors may be excused from exhausting domestic remedies where their failure to do so has resulted from the negligence or incompetence of State-provided lawyers, as opposed to privately retained counsel.11 [6.15] In Muhonen v Finland (89/81), the author had ‘clearly been given to understand that there was no further remedy’,12 and thus was not required to pursue the outstanding remedy.13 [6.16]

JRT and the WG PARTY v CANADA (104/81)

With regard to one of the author’s complaints in this case, the HRC noted: ¶8(b). As to the author’s claim that section 13(1) of the Canadian Human Rights Act, under which his use of the telephone service has been curtailed, has been applied against him in violation of article 19 of the Covenant, the Committee notes that he failed to file his application for judicial review within the time-limits prescribed by law. It appears, however, in view of the ambiguity ensuing from the conflicting time-limits laid down in the laws in question, that a reasonable effort was indeed made to exhaust domestic remedies in this respect and, therefore, the Committee does not consider that, as to this claim, the communication should be declared inadmissible under article 5(2)(b) of the Optional Protocol. . . .

[6.17]

MPANDANJILA et al v ZAIRE (138/83)

¶2.4. On 7 July 1982, the [victims’ Belgian] lawyers filed appeals with the Supreme Court of Justice . . . on behalf of their clients against the judgment on 1 July 1982. By decision of

10

At para 6.1. See also Owen v France (1620/07), para 6.4. 12 13 At para 6.1. See also the minority opinion in YL v Canada (112/81), para 2. 11

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26 October 1982, . . . the Supreme Court declined to consider the appeals because the court fees had not been paid. In this connection, the lawyers point out that they had taken steps to ensure that the requirement of payment of the court fees be complied with. They state that, since their clients were scattered among several detention centres, and it was impossible to communicate with them, a Zairian lawyer, Maître Mukendi . . . was asked to carry out the necessary formalities for depositing the fees. By a letter dated 15 September 1982, they urged Maître Mukendi to contact Mrs Birindwa (the wife of one of the alleged victims), who was supposed to collect the necessary funds. At the same time, they wrote to the Chief Justice of the Supreme Court to inform the Court of the steps taken to comply with the necessary formalities. It later transpired that Mrs Birindwa had not been in Kinshasa at the time in question and that the intended collection and payment of the court fees had not been made. The lawyers contend, however, that the efforts made to comply with the formalities, although unsuccessful, should be considered as satisfactory, in particular as the decision not to take action on the appeals was taken relatively shortly after the Supreme Court was informed of the efforts made to collect and deposit the fees. . . .

The HRC agreed that the case was admissible: ¶5.2. . . . The Committee noted the particular difficulties facing the authors, who were allegedly scattered among different detention centres, in paying their court fees in timely fashion. The Committee also noted the speed of the Supreme Court’s decision, against which there was no appeal, to dismiss the case on that ground. . . . In the circumstances, the Committee concluded that the communication was not inadmissible . . . by virtue of article 5, paragraph 2(b) of the Optional Protocol. . . .

Thus, the article 5(2)(b) OP requirement will be fulfilled if the author, or author’s counsel, has made an unsuccessful yet genuine attempt to comply with procedural formalities in order to exhaust local remedies.14 [6.18]

BROUGH v AUSTRALIA (1184/03)

The author was a 17-year-old Aboriginal boy with a mental disability. The complaint concerned his conditions of incarceration [9.202]. The HRC took his various vulnerabilities into account in deciding whether he had exhausted all available remedies: ¶8.8. As regards the possibility of filing a complaint with the Minister for Corrective Services or with the Serious Offenders Review Council, the Committee notes the author’s uncontested claim that he had not been informed about these or any other administrative remedies and that he was barely able to read or write at the time of his segregation at Parklea [Correctional Centre]. ¶8.9. The Committee also recalls that the author made several attempts to change the conditions of his incarceration by complaining to his Aboriginal Deaths in Custody officer and to the Governor of the correctional centre. It also notes the author’s contentions as to the Governor’s replies to his complaints and observes that the effect of these replies was to discourage the author from submitting further complaints to the prison authorities. Given the author’s age, his intellectual disability and his particularly vulnerable position as an Aboriginal, the Committee concludes that he made reasonable efforts to avail himself of 14

See also MAK v Germany (CAT 214/02), para 7.2.

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existing administrative remedies, to the extent that these remedies were known to him and insofar as they can be considered to have been effective.

No Requirement to Exhaust Futile Remedies [6.19]

PRATT and MORGAN v JAMAICA (210/86, 225/87)

¶12.3. . . . That the local remedies rule does not require resort to appeals that objectively have no prospect of success, is a well established principle of international law and of the Committee’s jurisprudence.

Complainants are not required to pursue remedies that are objectively futile. However, as evinced in numerous cases, such as RL v Canada (358/89), RT v France (262/87), and Kaaber v Iceland (674/95), a complainant’s subjective belief in the futility of domestic remedies does not per se absolve him/her of the requirement that such remedies be exhausted. [6.20]

DERMIT BARBATO v URUGUAY (84/81)

¶9.4. As to the question of exhaustion of domestic remedies in the case of Guillermo Dermit, the Committee also takes into account the following considerations: the remedies listed by the State party as unexhausted cannot be considered available to the alleged victim in the circumstances of his case. They are either inapplicable de jure or de facto and do not constitute an effective remedy, within the meaning of article 2 (3) of the Covenant, for the matters complained of. There are therefore no grounds to alter the conclusion reached in the Committee’s decision of 28 October 1981, that the communication is not inadmissible under article 5 (2) (b) of the Optional Protocol.

In a number of similar cases against the military regime in Uruguay in the Committee’s early years,15 the HRC found that the State Party had not shown that allegedly available remedies would be effective.16 These cases involved allegations of egregious human rights abuses, such as breaches of the right to life and freedom from torture and/or arbitrary detention. In many such cases, the State security forces were essentially acting with impunity, without regard for any notion of the rule of law. Such is indicated by the reference in Dermit Barbato to the lack of remedies ‘de jure or de facto’. In such situations, it seems the HRC will recognize that pursuit of domestic remedies under such a regime is likely to be futile, so a high burden of proof will be placed on the State Party to prove the efficacy of unexhausted remedies. This contention is supported by the decision in Arzuaga Gilboa v Uruguay (147/83), where the HRC stated that ‘effective’ remedies entailed ‘procedural guarantees for a “fair and public hearing by a competent, independent and impartial tribunal”’.17 A State which does not provide for such a 15 See eg Torres Ramírez v Uruguay (4/77), Grille Motta et al v Uruguay (11/77), and Martínez Machado v Uruguay (83/80). 16 See, generally, PR Ghandhi, The Human Rights Committee and the Right of Individual Communication: Law and Practice (Ashgate, 1998), 240–9. 17 At para 7.2.

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system for the administration of justice is unlikely to offer effective enforceable remedies, particularly against its own officers, as the system does not accord with the rule of law. Such situations arose too in the following case. [6.21]

AVADANOV v AZERBAIJAN (1633/07)

The author had originally complained to the European Court of Human Rights without success regarding alleged human rights abuses. He claimed that he was victimized after that complaint, including beatings by the police and the rape of his wife. No complaints were made as they feared reprisals. The couple later fled Azerbaijan and attained refugee status in Greece. They then submitted a complaint to the HRC regarding their victimization in the wake of the ECHR claim. The State claimed that they had failed to exhaust local remedies. Indeed, they had not exhausted any remedies in respect of that victimization. The HRC nevertheless found the complaint to be admissible. On Article 5(2)(b), it stated: ¶6.3. The State party had argued that the author’s torture allegations have never been raised in the domestic courts, which rendered this part of the communication inadmissible for failure to exhaust all available domestic remedies. The author conceded that neither he nor his wife, or anyone acting on their behalf, have ever raised these allegations before the State party authorities or courts, either before or after their departure from Azerbaijan. He explained that such failure was due to fears of reprisal, a lack of financial means to hire a lawyer, and partly to the alleged futility of the exercise since, in any case, the police would collectively defend itself. The author claimed that, for him, domestic remedies in Azerbaijan were ineffective and unavailable. ¶6.4. The Committee observed that the State party had merely stated in abstracto that, contrary to the requirements of article 5, paragraph 2(b), of the Optional Protocol, the author’s torture allegations have never been raised in the domestic courts, without addressing the alleged threats made against the author and his family. The Committee concluded that, in the circumstances and in the absence of further information from the State party, it could not be held against the author that he had not raised these allegations before the State party authorities or courts for fear that this might result in his victimisation and the victimisation of his family. The Committee also considered relevant in this regard that the author had been successful in obtaining refugee status in a third state. Therefore, the Committee accepted the author’s argument that, for him, domestic remedies in Azerbaijan were ineffective and unavailable and considered that it was not precluded by article 5, paragraph 2(b), of the Optional Protocol from examining the communication.

As in the Uruguayan cases cited above, this case confirms that people do not have to exhaust remedies in cases where doing so is objectively dangerous, or a complete waste of time due to a breakdown in the proper functioning of the rule of law in a State.18 Similarly, in Phillip v Jamaica (594/92), the author was not required to have alerted prison authorities to the poor state of his conditions of detention, ‘given that he had not filed a complaint because of his fears of the warders’.19 18 See also Traoré v Côte d’Ivoire (1759/08), Ltaief v Tunisia (CAT 189/01), and Thabti v Tunisia (CAT 187/01). 19 At para 6.4.

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One is not required to pursue remedies which may foreseeably result in or exacerbate one’s victimization. [6.22]

OMINAYAK et al v CANADA (167/84)20

This case concerned a complaint by the Chief of an indigenous Canadian tribe, the Lubicon Lake Band, regarding the rights of himself and his people. The main allegation concerned an alleged breach of the Band members’ article 27 minority rights, entailed in the destructive effect on Lubicon culture of various acts of the provincial government of Alberta, including expropriation of Lubicon land for the benefit of private corporate interests, and its authorization of energy exploration in their homelands [24.27]. Regarding exhaustion of domestic remedies, the author stated the following: ¶3.2. With respect to the exhaustion of domestic remedies, it is stated that the Lubicon Lake Band has been pursuing its claims through domestic political and legal avenues. It is alleged that the domestic political and legal process in Canada is being used by government officials and energy corporation representatives to thwart and delay the Band’s actions until, ultimately, the Band becomes incapable of pursuing them, because industrial development at the current rate in the area, accompanied by the destruction of the environmental and economic base of the Band, would make it impossible for the Band to survive as a people for many more years. . . . ¶3.5. On 16 February 1982, an action was filed in the Court of Queen’s Bench of Alberta requesting an interim injunction to halt development in the area until issues raised by the Band’s land and natural resource claims were settled. The main purpose of the interim injunction, the author states, was to prevent the Alberta government and the oil companies (the ‘defendants’) from further destroying the traditional hunting and trapping territory of the Lubicon Lake people. This would have permitted the Band members to continue to hunt and trap for their livelihood and subsistence as a part of their aboriginal way of life. The provincial court did not render its decision for almost two years, during which time oil and gas development continued, along with rapid destruction of the Band’s economic base. On 17 November 1983, the request for an interim injunction was denied and the Band, although financially destitute, was subsequently held liable for all court costs and attorneys’ fees associated with the action. ¶3.6. The decision of the Court of Queen’s Bench was appealed to the Court of Appeal of Alberta: it was dismissed on 11 January 1985. In reaching its decision, the Court of Appeal agreed with the lower court’s finding that the Band’s claim of aboriginal title to the land presented a serious question of law to be decided at trial. None the less, the Court of Appeal found that the Lubicon Lake Band would suffer no irreparable harm if resource development continued fully and that the balance of convenience, therefore, favoured denial of the injunction.

The State Party disputed that effective remedies had been exhausted: ¶5.4. Rather than proceed with a trial on the merits, the Band appealed against the dismissal of the interim application. Its appeal was dismissed by the Alberta Court of Appeal of 20

Otherwise known as the Lubicon Lake Band Case.

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11 January 1985. The Band’s application for leave to appeal the dismissal of the interim injunction to the Supreme Court of Canada was refused on 14 March 1985. Almost two months later, on 13 May 1985, the State party adds, the Supreme Court of Canada denied another request by the Band that the Court bend its own rules to rehear the application. Thus, the State party states, the Court upheld its well-established rule prohibiting the rehearing of applications for leave to appeal. ¶5.5. The State party submits that, after such extensive delays caused by interim proceedings and the contesting of clearly settled procedural matters of law, the author’s claim that the application of domestic remedies is being unreasonably prolonged has no merit. It submits that it has been open to the Band as plaintiff to press on with the substantive steps in either of its legal actions so as to bring the matters to trial.

The HRC found in favour of the complainant on this point: ¶13.2. With regard to the requirement, in article 5, paragraph 2 (b), of the Optiona1 Protocol, that authors must exhaust domestic remedies before submitting a communication to the Human Rights Committee, the author of the present communication had invoked the qualification that this requirement should be waived ‘where the application of the remedies is unreasonably prolonged’. The Committee noted that the author had argued that the only effective remedy in the circumstances of the case was to seek an interim injunction, because ‘without the preservation of the status quo, a final judgement on the merits, even if favourable to the Band, would be rendered ineffectual’, in so far as ‘any final judgement recognising aboriginal rights, or alternatively treaty rights, [could] never restore the way of life, livelihood and means of subsistence of the Band’. Referring to its established jurisprudence that ‘exhaustion of domestic remedies can be required only to the extent that these remedies are effective and available’, the Committee found that, in the circumstances of the case, there were no effective remedies still available to the Lubicon Lake Band. . . . ¶31.1. The Committee has seriously considered the State party’s request that it review its decision declaring the communication admissible under the Optional Protocol ‘in so far as it may raise issues under article 27 or other articles of the Covenant’. In the light of the information now before it, the Committee notes that the State party has argued convincingly that, by actively pursuing matters before the appropriate courts, delays, which appeared to be unreasonably prolonged, could have been reduced by the Lubicon Lake Band. At issue, however, is the question of whether the road of litigation would have represented an effective method of saving or restoring the traditional or cultural livelihood of the Lubicon Lake Band, which, at the material time, was allegedly at the brink of collapse. The Committee is not persuaded that that would have constituted an effective remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. In the circumstances, the Committee upholds its earlier decision on admissibility.

Though the domestic remedies rule generally will be satisfied by the provision of ex post facto remedies [6.08], the Ominayak decision confirms that it is unreasonable to expect authors to seek remedies that will not crystallize until after irreparable damage to their ICCPR rights has occurred. In some cases, ex post facto remedies, particularly prolonged ones, will not be able to provide meaningful redress. For example, the Ominayak decision regarding admissibility indicated that the destruction of one’s culture in breach of article 27 minority rights cannot be adequately

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redressed by ex post facto remedies, such as the payment of compensation or legislative reform.21 In such cases, it is still incumbent upon the author to seek injunctive relief before seeking a remedy under the OP.22 [6.23] Similarly, in Weiss v Austria (1086/02), remedies that were available to challenge the lawfulness of an extradition were deemed to be ‘by definition ineffective’ after the extradition had taken place.23 [6.24] In Vakoumé v France (822/98), the authors complained that the erection of a hotel on their traditional lands breached their rights to privacy and family life. The authors argued that available remedies were ineffective as the hotel had already been built. The HRC did not agree, and found the complaint inadmissible under article 5(2)(b) OP. Vakoumé might be distinguishable from Ominayak on the basis that the remedies were not unduly prolonged. Furthermore, as the hotel had been completed, no more damage could actually be done to the authors in pursuing available domestic remedies. [6.25] The following cases address the effect of the doctrine of precedent on the determination of a remedy’s potential effectiveness. LÄNSMAN et al v FINLAND (511/92) ¶6.1. . . . wherever the jurisprudence of the highest domestic tribunal has decided the matter at issue, thereby eliminating any prospect of success of an appeal to the domestic courts, authors are not required to exhaust domestic remedies, for the purposes of the Optional Protocol.

CASTAÑO LÓPEZ v SPAIN (1313/04) ¶6.3. The Committee notes the State party’s affirmation that the communication is inadmissible because domestic remedies have not been exhausted, as the author did not invoke the violation of the right to equality before the Constitutional Court. The Committee notes, however, that the Court had already ruled negatively on that issue in a similar case. The Committee reiterates its jurisprudence that when the highest domestic court has ruled on the subject of a dispute, thereby eliminating any prospect of a successful appeal to the domestic courts, the author is not required to exhaust domestic remedies for the purposes of the Optional Protocol. The Committee therefore concludes that the requirements of article 5, paragraph 2 (b), of the Optional Protocol have been met in the case of the present communication.

21 Ironically, the HRC ultimately decided on the merits that the Canadian offer of monetary compensation in return for the lands expropriated from the Band constituted an appropriate remedy: see [24.28]. See also [1.64]ff on interim orders. 22 In EHP v Canada (67/80), the author claimed that the storage of radioactive waste nearby endangered her right to life [8.76]. She also claimed that the exhaustion of remedies would take too long, and irreparable harm would occur in the meantime. The HRC found the case inadmissible under art 5(2)(b) OP. Zwart suggests that ‘[t]hings might have been different if the author had sought injunctive relief instead of completely bypassing local remedies’, in T Zwart, The Admissibility of Human Rights Petitions (Martinus Nijhoff Publishers, 1994), 197. 23 At para 8.2.

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The cases confirm that authors are not expected to appeal points of law in the face of contrary superior court precedent.24 Similarly, one is not required to challenge an action that is clearly authorized by domestic legislation,25 especially if such authorization is contained in the domestic constitution.26 In contrast, authors are probably required to appeal points of law against contrary precedent where the relevant precedent is weak and therefore assailable.27 [6.26] The UN treaty bodies are reluctant to proceed to the merits of a communication unless all available judicial remedies have been exhausted, regardless of the number of municipal appeals that may entail.28 Such a requirement is undoubtedly onerous for prospective authors, considering the difficulty and cost of mounting successive appeals. The onerous nature of article 5(2)(b) requirements was demonstrated in the following case. DIXIT v AUSTRALIA (978/01) The complaint related to the denial by the State Party (specifically, its Department of Immigration and Multicultural Affairs (DIMA)) to issue a visa to the author and his family. The State Party argued the case was inadmissible on a number of bases, including the author’s failure to exhaust local remedies by seeking judicial review of DIMA’s decision. The author responded: ¶5.3. With respect to the alleged failure to exhaust domestic remedies, the author submits that the remedies to which the State party is referring are remote, expensive, ineffective and likely to fail. The author also draws the attention of the Committee on the actions he has taken in relation to his visa application before lodging this communication, writing an important number of letters, requesting information and seeking assistance of various bodies, complaining to the HREOC [Human Rights and Equal Opportunity Commission], the Ombudsman and the Medical Board. Moreover, despite his extensive correspondence with DIMA [Department of Immigration and Multicultural Affairs] and the Minister, the author was never advised of the existence of the remedies referred to by the State party. The author further submits that it has taken more than three years to be in possession of all the elements to understand why the visa had been rejected and that when he contacted lawyers in Australia, they were unable to help him as that information was unavailable. The author asked a counsel, Goldsmith Lawyers, to request a copy of his file from DIMA but by the time he received the file, he realized that there was not enough information to make a determination of specific aspects of health assessment which led to denial of the visa. He thus requested the help of a Senator to find the facts, and it was not until 1999 that he was able to take action, outside the time limitation for bringing an action before the Federal Court. The author considers that this delay in obtaining the appropriate information cannot

24 See also Sohn v Republic of Korea (518/92). In Faurisson v France (550/93), para 6.1, the author was not required to appeal his case to the French Court of Appeal (‘Court of Cassation’) when his co-accused had already lost his appeal. See also Johannes Vos v Netherlands (786/97), para 6.2; Maille v France (689/96), para 6.2; Kazantzis v Cyprus (972/01), para 6.3; Jeong et al v Republic of Korea (1642–1741/07), para 6.3; and SL v Czech Republic (1850/08), para 6.4. 25 26 See A v Australia (560/93), para 5.6. See Barzhig v France (327/88), para 5.1. 27 See Barbaro v Australia (CERD 7/95). 28 See also Barbaro v Australia (CERD 12/98).

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be attributed to him. Further, the author contends that he is not obliged to pursue a domestic remedy that does not offer a reasonable prospect of success. Having regard to the nature of the decision on visa application, the fact that he was residing in the United States, that he did not receive the reasons for the negative decision, that he was not eligible for legal aid in Australia, it would have been practically impossible to pursue legal proceedings in Australia before either the Federal Court or the High Court. The author also argues that judicial review is not intended to assess whether there has been a violation of human rights but whether there was a legal error and does not include a review of the substantive issue, which is what the author was concerned with. Those remedies would thus not have provided the author with any relief for the substantive issues. Finally, the author contends that there is no precedent where an offshore non-citizen has made an appeal before the High Court in relation to the refusal of a visa on health grounds and that the High Court, being mainly a court of last instance, does not encourage litigants to commence claims at this stage. The author is therefore of the opinion that he has exhausted all reasonable available domestic remedies.

The State Party responded: ¶6.3. Regarding the exhaustion of domestic remedies, the State party argues that the remedies to which it was earlier referring are not expensive as the fee for such applications could have been waived, that the presence of the author before the Federal Court or the High Court would not have been required, that the High Court could have allowed an application made outside the usual time limit if it was in the interests of justice, that it would not be appropriate for a Commonwealth department such as DIMA to advise individuals of possible rights of judicial review, that, under the two remedies, the decision to refuse the visa could have been quashed and directed to be remade and that over 100 immigration cases have made the object of an application to the High Court, including by offshore non-citizens.

The HRC found in favour of the State Party: ¶8.3. The Committee observes that the author appears to accept that there was, in principle, a remedy available to his daughter in the State party’s Federal Court. Although formal time limits now have expired, the Committee considers that the author has not demonstrated any effort to engage the State party’s judicial remedies. Furthermore and in respect of the present time, the Committee observes that the author has not shown that an application for leave to appeal out of time would be unavailable and also observes that a later visa application has meanwhile proven successful. The communication is accordingly inadmissible under article 5, paragraph 2 (b).

[6.27] In two cases concerning domestic violence which resulted in the deaths of female victims, the CEDAW Committee took a refreshingly realistic approach to the exhaustion of domestic remedies. In Goekce v Austria (CEDAW 5/05) and Yildirim v Austria (CEDAW 6/05), the complaints centred around the State’s failure to exercise adequate due diligence to protect the women from abusive husbands who ultimately killed them. In those circumstances, the CEDAW Committee decided that the availability and adequacy of remedies was essentially an issue to be answered on the merits, as the adequacy of the State’s processes and laws were being challenged. Furthermore, the alleged available remedy in both cases was article 140(1) of the Federal Constitution, which may have allowed argument to

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be put to challenge the non-availability of an appeal against a Prosecutor’s decision not to detain the husbands. In both cases, this remedy ‘could not be regarded as a remedy, which was likely to bring effective relief to a woman whose life was under a criminal dangerous threat’.29

Must Authors Exhaust Costly Remedies? [6.28]

PS v DENMARK (397/90)

¶5.4. . . . The Committee recalls the State party’s contention that judicial review of administrative regulations and decisions, pursuant to section 63 of the Danish Constitutional Act, would be an effective remedy available to the author. The Committee notes that the author has refused to avail himself of these remedies, because of considerations of principle and in view of the costs involved. The Committee finds, however, that financial considerations and doubts about the effectiveness of domestic remedies do not absolve the author from exhausting them. Accordingly, the author has failed to meet the requirements of article 5, paragraph 2(b), in this respect.

RL v CANADA (358/89) ¶6.4 The Committee further observes that other Indian Bands have instituted proceedings before the Federal Courts, the outcome of which is pending, . . . , and that the alleged high cost of litigation can, under specific circumstances, be offset by funding provided pursuant to a number of programmes instituted by the State party.

Therefore, at the least, a person must exhaust avenues for government funding of outstanding legal actions even if the person cannot personally afford them.30 [6.29]

HENRY v JAMAICA (230/87)

In this case, the State Party claimed that the author could have pursued constitutional remedies in the Jamaican Supreme Constitutional Court regarding his allegations over the fairness of his trial. The author claimed that he could not exhaust this remedy due to lack of funds, and the lack of availability of legal aid for constitutional motions. The State Party responded: ¶6.4. In respect of the absence of legal aid for the filing of constitutional motions, the State party submits that nothing in the Optional Protocol or in customary international law would support the contention that an individual is relieved of the obligation to exhaust domestic remedies on the grounds that there is no provision for legal aid and that his indigence has prevented him from resorting to an available remedy. In this connection, the State party observes that the Covenant only imposes a duty to provide legal aid in respect of criminal offences (article 14, paragraph 3(d)). Furthermore, international conventions dealing with economic, social and cultural rights do not impose an unqualified obligation on States to

See Goekce v Austria (CEDAW 5/05), para 7.5 and Yildirim v Austria (CEDAW 6/05), para 7.4. See also Faurisson v France (550/93), para 6.1; GT v Canada (420/90), para 6.3; and RSAN v Canada (CAT 284/06), para 6.4. 29 30

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implement such rights: article 2 of the International Covenant on Economic, Social and Cultural Rights, for instance, provides for the progressive realization of economic rights and relates to the ‘capacity of implementation’ of States. In the circumstances, the State party argues that it is incorrect to infer from the author’s indigence and the absence of legal aid in respect of the right to apply for constitutional redress that the remedy is necessarily nonexistent or unavailable. . . .

The HRC found in favour of the author on this point: ¶7.3. The Committee recalls that by submission of 10 October 1991 in a different case, the State party indicated that legal aid is not provided for constitutional motions. In the view of the Committee, this supports the finding . . . that a constitutional motion is not an available remedy which must be exhausted for purposes of the Optional Protocol. In this context, the Committee observes that it is not the author’s indigence which absolves him from pursuing constitutional remedies, but the State party’s unwillingness or inability to provide legal aid for this purpose. ¶7.4. The State party claims that it has no obligation under the Covenant to make legal aid available in respect of constitutional motions, as such motions do not involve the determination of a criminal charge, as required by article 14, paragraph 3(d), of the Covenant. But the issue before the Committee has not been raised in the context of article 14, paragraph 3(d), but only in the context of whether domestic remedies have been exhausted. . . . ¶7.6. For the above reasons, the Committee maintains that a constitutional motion does not constitute a remedy which is both available and effective within the meaning of article 5, paragraph 2(b), of the Optional Protocol. . . .

This reasoning in Henry has been consistently supported in subsequent cases.31 It confirms that the non-availability of legal aid to indigent persons is relevant in determining whether the author has overcome procedural admissibility barriers under the OP. The decision in Currie v Jamaica (377/89) takes the Henry reasoning further, as the non-availability of legal aid for constitutional motions was there found to constitute a substantive breach of the ICCPR, namely the article 14(1) guarantee of a fair trial.32 [6.30] A literal reading of the HRC’s decision in PS v Denmark [6.28] indicates that financial considerations are irrelevant in HRC determinations regarding the effectiveness of a remedy. Henry and its successors confirm that this is not the case. PS may be distinguished on the basis that the author had not attempted to pursue any judicial remedies, nor, perhaps more importantly, had he indicated any inability to afford to pursue such remedies. Indeed, financial considerations do not absolve an author from pursuing a costly remedy if he/she has the means to secure legal assistance for such a purpose. For example, in RW v Jamaica (340/88),33 the author was able to afford legal representation for a constitutional motion, so the

31 See eg Campbell v Jamaica (248/87), Little v Jamaica (283/88), Ellis v Jamaica (276/88), Hibbert v Jamaica (293/88), Thomas v Jamaica (321/88), Wright v Jamaica (349/89), Hylton v Jamaica (600/94), Gallimore v Jamaica (680/96), and Osbourne v Jamaica (759/97). 32 33 See [14.34]. At para 6.2.

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non-availability of legal aid in Jamaica for such motions was irrelevant for the purposes of article 5(2)(b) OP. [6.31]

CM v CANADA (CAT 355/08)

The CAT Committee has excused asylum-seekers from pursuing remedies that they simply could not afford from the equivalent CAT domestic remedies rule:34 ¶9.2. The Committee takes note that the State party challenges the admissibility of the complaint for failure to exhaust domestic remedies. The State party asserts that if the complainant had paid the fee for the procedure, the judge could have ruled on his application for review but that, in the absence of such a payment, the application must be considered inadmissible. The Committee notes the complainant’s argument that he is experiencing financial hardship because he is not permitted to work or receive social assistance and that he was consequently unable to pay the fee for the review procedure. The Committee takes note of the fact that the complainant was not even permitted to make a partial payment in advance. The Committee considers that, given the complainant’s personal circumstances, it was unfair to oblige him to pay the sum of 1,200 Swiss francs in order for his last application for review to be admissible. This view is based on the fact that the complainant was not authorized to work within the State party’s territory and that he appears to have been denied social assistance. It therefore seems unreasonable to deny the complainant the possibility of applying for a review of his case on financial grounds considering his difficult financial circumstances. The Committee therefore considers that the argument that the complaint is inadmissible for failure to exhaust domestic remedies does not stand in the present case. The complaint is therefore admissible under article 22, paragraph 5 (b), of the Convention.

Unreasonable Prolongation of Remedies [6.32] Article 5(2)(b) of the OP expressly exempts complainants from having to pursue ‘unreasonably prolonged’ remedies. The Ominayak case demonstrates how unreasonable delay can also lead to a finding that the remedy at issue is ineffective for the purposes of article 5(2)(b) [6.22]. [6.33]

FILLASTRE and BIZOARN V BOLIVIA (336/88)

The complaint concerned the arrest and prolonged detention of two French private detectives by Bolivian authorities. The HRC found in favour of the authors in its admissibility decision: ¶5.2. During its 40th session, the Committee considered the admissibility of the communication. It took note of the State party’s observations and clarifications concerning the current status of the case before the Bolivian courts, observing that the victims were still awaiting the outcome of the proceedings instituted against them in September 1987, that is, more than three years after their arrest. In the circumstances, the Committee considered that a delay of over three years for the adjudication of the case at first instance, discounting 34

See also ZT v Norway (CAT 238/03).

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the availability of subsequent appeals, was ‘unreasonably prolonged’ within the meaning of article 5, paragraph 2(b), of the Optional Protocol. From the available information, the Committee deduced that such delays as had been encountered were neither attributable to the alleged victims nor explained by the complexity of the case. It therefore concluded that the requirements of article 5, paragraph 2(b), had been met.

The Fillastre decision indicates that the unreasonableness of potential delays varies according to the complexities of the case.35 Such is also implicit in Jonassen et al v Norway (942/00) [6.05]. [6.34]

HENDRIKS v THE NETHERLANDS (201/85)

This case concerned allegations that Dutch family courts had unfairly favoured the author’s ex-wife with regard to the custody of the author’s son, thereby breaching article 23(4).36 The HRC, in finding the complaint admissible, made the following comments regarding the exhaustion of domestic remedies: ¶6.3. Article 5, paragraph 2 (b), of the Optional Protocol precludes the Committee from considering a communication unless domestic remedies have been exhausted. In that connection, the Committee noted that, in its submission of 9 July 1986, the State party had informed the Committee that nothing would prevent Mr. Hendriks from once again requesting the Netherlands courts to issue an access order. The Committee observed, however, that Mr. Hendriks’ claim, initiated before the Netherlands courts 12 years earlier, had been adjudicated by the Supreme Court in 1980. Taking into account the provision of article 5, paragraph 2 (b) . . . of the Optional Protocol regarding unreasonably prolonged remedies, the author could not be expected to continue to request the same courts to issue an access order on the basis of ‘changed circumstances’, notwithstanding the procedural change in domestic law (enacted in 1982) which would now require [the author’s son] to be heard. The Committee observed that, although in family law disputes, such as custody cases of that nature, changed circumstances might often justify new proceedings, it was satisfied that the requirement of exhaustion of domestic remedies had been met in the case before it.

[6.35]

HS v FRANCE (184/84)

The HRC found this complaint inadmissible in the following terms: ¶9.4. The Committee is aware that the proceedings before the Tribunal de grande instance de Bobigny lasted for more than six and a half years. However, the Committee finds that the delays in the proceedings in 1984 and 1985 were caused by the author himself. For that reason the Committee is unable to conclude that the domestic remedies, which, according to both parties, are in progress, have been unduly prolonged in a manner that would exempt the author from exhausting them under article 5, paragraph 2 (b), of the Optional Protocol.

The case concerned the State Party’s failure to recognize the alleged French nationality of the author. The author was found personally responsible for delays 35 Freedom from unreasonable delay before the conclusion of one’s trial is also a substantive guarantee in the Covenant in art 14(3)(c). Indeed, a violation of this guarantee was found in Fillastre. 36 The merits of this case are considered at [20.58]ff.

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of two years out of a six-and-a-half-year process; the HRC implicitly recognized that four-and-a-half years for immigration proceedings is ‘reasonable’.37 [6.36] The principle in HS, that domestic remedies will not be deemed unreasonably prolonged if such prolongation is the fault of the author, has been confirmed in a number of cases, including NAJ v Jamaica (246/87). In NAJ, an appeal to the Judicial Committee of the Privy Council remained available to the author; the 13-year delay was largely due to the author’s failure to pursue this avenue. [6.37]

KLY v CANADA (1576/07)

This case concerned a complaint of age discrimination. The author had not pursued any court remedies, and a complaint before the Saskatchewan Human Rights Commission (SHRC) was pending at the time he submitted his complaint. He had agreed to delay his action while the SHRC resolved a similar case. That case took six years. The author now claimed that remaining remedies were overly prolonged. The HRC disagreed: ¶6.6. The author did not object to delay the resolution of his case until the outcome in the Carlson test case despite the SHRC assessment that a final resolution was not to be expected before a considerable period of time. The author further does not appear to have requested the SHRC for a hearing in his case and he also failed to complain to the domestic authorities about the delay in the proceedings before the SHRC. The Committee concludes that it is clear that the author acquiesced in the delay of the proceedings before the SHRC. It is therefore unable to conclude that the domestic remedies, which according to both parties, are in progress, have been unduly prolonged in a manner that would exempt the author from exhausting them.

[6.38]

BLANCO v NICARAGUA (328/88)

The author complained of various egregious human rights abuses entailed in his treatment by the Nicaraguan government. Whilst his communication was pending, a new government came to power, and argued that the author now had recourse to a number of newly available remedies. The HRC nevertheless found that the complaint was admissible: ¶9.1. The Committee has taken due note of the State party’s submission that the author has failed to exhaust domestic remedies, since he can now address his complaints to the competent courts of the present Nicaraguan Government. ¶9.2. The Committee welcomes the State party’s readiness to examine the author’s complaints and considers that such examination could be seen as a remedy under article 2, paragraph 3, of the Covenant. However, for purposes of article 5, paragraph 2(b), of the Optional Protocol, the Committee considers that the author, who was arrested in 1979 and spent ten years in detention, cannot be at this stage required to engage the Nicaraguan courts of the present administration before his case can be examined under the Optional Protocol. In this context the Committee recalls that the communication was submitted to the Committee in

37

Compare the CAT Committee in VNIM v Canada (CAT 119/98).

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1988, at a time when domestic remedies were not available or not effective. Even if domestic remedies may now be available, the application of such remedies would entail an unreasonable prolongation of the author’s quest to be vindicated for his detention and alleged ill-treatment; the Committee concludes that the Optional Protocol does not require the author, in the circumstances of his case, to further engage the Nicaraguan courts. Moreover, the Committee reiterates its finding that the criteria of admissibility under the Optional Protocol were satisfied at the time of submission of the communication. . . .

[6.39] The HRC has stated in a number of cases, such as RL et al v Canada (358/89), that ‘fears about the length of proceedings do not absolve authors from the requirement of at least making a reasonable effort to exhaust domestic remedies’.38 This mirrors the rule regarding an author’s fears over the futility of domestic remedies [6.19]. Of course, in some cases, complainants may objectively justify their fear of unreasonable delay, as in Ominayak v Canada (167/84) [6.22].

Exhaustion of Domestic Remedies Requirement in Cases of State Succession [6.40]

KUOK KOI v PORTUGAL (925/00)

This case concerned a complaint by a resident of Macao about various irregularities in a trial which, the author claimed, breached the right to a fair trial in article 14 of the ICCPR.39 Macao was, until 19 December 1999, a Portuguese colony. The administration of Macao was transferred to the People’s Republic of China on 20 December 1999. The author initially submitted his communication on 15 December 1999. Hence, Macao was under Portuguese administration at the time of submission of the communication, but under PRC jurisdiction by the time the admissibility of the communication was considered in late 2001. One of Portugal’s arguments against admissibility concerned the exhaustion of domestic remedies: ¶4.5. . . . [T]he State party contends that domestic remedies have not been exhausted, since the decision on the author’s appeal is still pending. . . . Moreover, the decision on appeal will no longer be the responsibility of Portugal, since it will be taken by a Court of the Macao Special Administrative Region, which is under the jurisdiction of the People’s Republic of China.

Indeed, the author’s complaint was submitted prior to the exhaustion of all judicial avenues in the relevant trial. However, while the communication was pending, the final available domestic remedy was exhausted, without success for the author. Thus, by the time of the HRC’s admissibility decision, domestic remedies had been exhausted. Nevertheless, the HRC agreed with Portugal that the complaint was inadmissible under article 5(2)(b) OP. In Kuok Koi, the HRC explained:

38

At para 6.4. The introduction to and commentary on this case are taken from S Joseph, ‘Human Rights Committee: Recent Cases’ (2002) 2 HRLR 287 at 294–5. See also [4.06]ff. 39

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¶6.4. With regard to exhaustion of domestic remedies, Article 2 of the Optional Protocol states: ‘Subject to the provisions of article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration [emphasis added].’

The implications of this provision are clear: until such time as remedies available under the domestic legal system have been exhausted an individual who claims that his or her rights under the Covenant have been violated is not entitled to submit a communication to the Committee. It is therefore incumbent on the Committee to reject as inadmissible a communication submitted before this condition has been met. And indeed it has been the practice of the Committee not to receive communications when it is abundantly clear that available domestic remedies have not been exhausted. Thus, for example, in communications involving allegations of violations of fair trial in criminal cases, the Committee does not receive and register communications when it is clear that an appeal is still pending. The problem is that in many cases it is not self-evident from the communication itself whether domestic remedies were available and, if so, whether they were exhausted by the author. In such cases the Committee has no choice but to register the communication and to decide on admissibility after considering the submissions of both the author and the State Party on the issue of domestic remedies. When deciding whether to reject such communications as inadmissible under article 5, para 2 (b) of the Optional Protocol, the Committee generally follows the practice of other international decision-making bodies and examines whether domestic remedies have been exhausted at the time of considering the matter (rather than at the time the communication was submitted). The rationale of this practice is that rejecting a communication as inadmissible when domestic remedies have been exhausted at the time of consideration would be pointless, as the author could merely submit a new communication relating to the same alleged violation. It should be noted, however, that the assumption underlying this practice is that the legal standing of the State Party has not changed between the date of submission and the date of consideration of the communication, and that there would therefore be no legal impediments to submission of a new communication by the author relating to the alleged violation. When this assumption is invalid, the practice becomes incompatible with the requirements of the Optional Protocol. ¶6.5. In the present case both the author’s claims concerning the lack of competence of the special Portuguese judge, as well as the other claims regarding alleged violations of article 14 of the Covenant in the course of the author’s trial, were raised in the appeal to the Tribunal de Segunda Instancia in Macao. This appeal had not yet been heard at the time of the submission of the communication. The judgments in this appeal and in a further appeal lodged with the Tribunal of Last Instance, were rendered on 28 July 2000 and 16 March 2001 respectively, when Macao was no longer administered by Portugal. It follows that domestic remedies had not been exhausted when the communication was submitted and that the author was therefore not entitled, under article 2 of the Optional Protocol, to

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submit a communication. By the time the remedies had been exhausted the author was no longer subject to the jurisdiction of Portugal and his communication was inadmissible under article 1 of the Optional Protocol. ¶6.6. It should further be noted that the fact that the author’s appeals were heard after Portugal no longer had jurisdiction over Macao in no way implies that these remedies ceased to be domestic remedies which had to be exhausted before a communication could be submitted against Portugal. While Macao became a special administrative region in the People’s Republic of China after submission of the communication, its legal system remained intact, and the system of criminal appeals remained unchanged. Thus there remained remedies that had to be pursued under the domestic legal system, irrespective of the State which exercised control over the territory.

[6.41] Messrs Klein, Rivas Posada, and Yalden, with whom Mr Scheinin seemed to agree,40 found that the complaint was admissible. They stated: First, we do not think that further domestic remedies were, in fact, available to the author after the jurisdiction of Portugal over Macao had come to an end. It is true that by agreement between the State party and the People’s Republic of China the system of criminal appeals was to remain unchanged. But it is likewise true that after 19 December 1999, the courts to which the author could have applied (and has done in fact) no longer came within the jurisdiction of the State party against which this communication had been directed. The author submitted his communication on 15 December 1999, only four days before Macao reverted to Chinese administration. To take the view that the author should have exhausted further domestic (i.e. Portuguese) remedies within this short period of time would be clearly unreasonable. Therefore, even if the essential moment for deciding the question when domestic remedies are exhausted were to be the time of submission of the communication and not that of its consideration by the Committee (an issue on which we need not comment here), this requirement would have been met due to the special circumstances of the present case. Second, we believe that the Committee’s view suffers from a further defect. Requesting the author at the time of submission of his communication to exhaust domestic remedies, since otherwise the communication would be inadmissible, on the one hand, and taking the line when he has done so that his communication is inadmissible because he is no longer subject to the jurisdiction of Portugal, on the other, creates an unacceptable situation in which the author is deprived of any effective protection which the Covenant and the Optional Protocol purport to ensure. For these reasons we are of the view that the Committee should have declared the communication admissible.

[6.42] Thus, a dispute arose within the HRC over the application of the domestic remedies rule in the context of a territory which changes hands before domestic remedies in respect of an incident have been exhausted. This was a new situation for the HRC, so its prior jurisprudence is not instructive. It is submitted that both positions are tenable. However, it should be noted that the minority of Klein, Rivas Posada, and Yalden bolstered their view with a significant policy argument. They added that the HRC view ‘create[d] an unacceptable situation in which the 40

Mr Scheinin was not clear on this point.

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author is deprived of any effective protection which the Covenant and the Optional Protocol purport to ensure’. Certainly, the HRC view rendered it impossible for any complaint to be made against Portugal, as domestic remedies could not feasibly have been exhausted before 19 December 1999. However, if the PRC has succeeded to those OP obligations, it would be possible to submit a complaint against the PRC in regard to the article 14 allegations. OP complaints can be submitted against successor States in respect of matters which occurred prior to the date of succession.41 Therefore, the minority is assuming that the OP does not now apply to the PRC in respect of Macao, which is not at all certain.42 [6.43] Though a majority found the case inadmissible, Mr Scheinin noted in a separate opinion that ‘[t]here was no majority for any specific reason for inadmissibility’. No majority emerged regarding the issue of domestic remedies, as three HRC members dismissed the case for other reasons, without commenting on the domestic remedies question.43

Burden of Proof [6.44] The availability of domestic remedies may raise extremely technical questions regarding the municipal law of the relevant State, which are outside the expertise of the HRC. Therefore, it is important to know where the burden of proof lies in proving the availability, or non-availability, of effective domestic remedies. [6.45]

CF v CANADA (118/81)

The complaint in this case concerned the inability of the authors, inmates in Canadian federal penitentiaries, to vote in provincial elections in Quebec. The State Party argued that the authors had failed to exhaust domestic remedies. ¶4.2. As regards the non-exhaustion of domestic remedies, the State party argues that the authors, by seeking an interlocutory decision against the Solicitor General’s negative reply, had chosen an inappropriate remedy and that instead they should have applied for a declaratory judgement as to their right to vote. The State party claims that such a declaration would have been an ‘effective and sufficient’ remedy according to international jurisprudence and Canadian legal practice. The State party admits that it could be argued that there was not sufficient time to get a declaratory judgement before the Quebec provincial elections of 1981 were held and that therefore a declaration was not an effective remedy in regard to the present communication. The State party, however, argues that the real object of the communication is to assert the right of inmates in federal penitentiaries in relation to future elections . . . and therefore concludes that it was not ‘too late’ for the authors to

41 See eg Drbal v Czech Republic (498/92). Though this case was found inadmissible for other reasons, no points were raised regarding the fact that the entire factual situation occurred before the split of Czechoslovakia into the Czech Republic and Slovakia in 1993. 42 43 See, on succession to the OP, [26.45]ff. See [4.09].

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seek a declaration of their rights in the domestic courts to achieve this object of their claim. Consequently, domestic remedies had not been exhausted.

In subsequent submissions, the authors disputed the effectiveness of the alleged remedy. The HRC initially found in favour of the authors on this point. ¶6.2. With regard to article 5, paragraph 2(b), of the Optional Protocol the Committee observed that, although the authors might not have been able to obtain a declaratory judgement before the elections of 13 April 1981, a subsequent judgement could nevertheless in principle have been an effective remedy in the meaning contemplated by article 2, paragraph 3, of the Covenant and article 5, paragraph 2(b), of the Optional Protocol. The Covenant provides that a remedy shall be granted whenever a violation of one of the rights guaranteed by it has occurred; consequently, it does not generally prescribe preventive protection, but confines itself to requiring effective redress ex post facto. However, the Committee was of the view that the Canadian Government had not shown that an action for a declaratory judgement would have constituted an effective remedy either with regard to the elections of 13 April 1981 or with regard to any future elections. On the basis of the Government’s submission of 20 August 1982, it was not clear whether an action seeking to have declared unlawful the refusal of the competent prison authorities to let the alleged victims participate in the elections of 13 April 1981 would have been admissible. On the other hand, taking into account the authors’ submission received on 7 June 1983, the Committee expressed doubt as to whether, and to what extent, executive authorities in Canada are bound to give effect to a declaratory judgement in similar circumstances arising in the future. Since it is incumbent on the State party concerned to prove the effectiveness of remedies which it claims have not been exhausted, the Committee concluded that article 5, paragraph 2(b), of the Optional Protocol did not preclude the admissibility of the communication.

The State Party went on to submit extremely detailed evidence regarding the effectiveness of declaratory judgments in Canada. The HRC subsequently reversed its admissibility finding in the following terms:44 ¶10.1. Pursuant to rule 93, paragraph 4, of its provisional rules of procedure the Human Rights Committee has reviewed its decision on admissibility of 25 July 1983. . . . According to the detailed explanations contained in the submission of 17 February 1984, however, the legal position appears to be sufficiently clear in that the specific remedy of a declaratory judgement was available and, if granted, would have been an effective remedy against the authorities concerned. In drawing this conclusion, the Committee also takes note of the fact that the authors were represented by legal counsel.

[6.46] The CF case clearly indicates that States Parties bear a substantial burden in proving the existence and efficacy of relevant domestic remedies.45 However, the HRC’s adherence to this ‘rule’ regarding burden of proof is inconsistent, as is perhaps indicated in the next case.

44 Zwart, The Admissibility of Human Rights Petitions, criticizes this reversal at 202, as the remedy would only have related to forthcoming elections, rather than redress the denial of the authors’ right to vote in the 1981 election. 45 See also Randolph v Togo (910/00).

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SHB v CANADA (192/85) The author submitted a complaint regarding his treatment by local courts. In particular, the local court in family law proceedings had awarded custody of the author’s child to the complainant’s ex-wife, and had ordered that he pay his ex-wife substantial alimony. The complainant alleged that the orders breached several provisions of the ICCPR. With regard to the exhaustion of domestic remedies, the complainant submitted the following: ¶2.4. With regard to the exhaustion of domestic remedies, the author states that he has appealed to the Supreme Court of Alberta, but that the court of appeals refused to investigate the trial judge’s use of discretion and that no written reasons were given for refusing to consider the appeal. The author has also addressed himself to the Chief Justice of Alberta, the Judicial Council, the Minister of Justice of Canada, the Minister of Justice of Alberta, and the Provincial Ombudsman of Alberta, without success, because the judge’s power of discretion is considered beyond challenge and thus no investigations were conducted. The author indicates that he could still make an appeal to the Supreme Court of Canada, but explains that this would not be a practical option because the main issue is the judge’s use of discretion and the current law provides that the judge has absolute discretion in matters of awarding child custody and division of matrimonial property, and thus the Supreme Court could not overturn the lower court’s decision without a legislative change. Moreover, even if the issue could be examined by the Supreme Court of Canada, the backlog of cases is such that review of his case would be impossible within a reasonable time. . . . ¶6.3. With regard to the State party’s contention that he has not exhausted domestic remedies with respect to the issue of custody, the author submits that ‘it has been the unanimous advice of several legal experts that the awarding of child custody is entirely within the discretion of the judge’ and that therefore an appeal to the Court of Appeal would be totally futile. He could not, he argues, obtain a new evaluation of the facts by the Court of Appeal, and the only possibility of challenging the lower court’s decision would be by establishing bias or misconduct on the part of the judge or of the Amicus Curiae. In pursuing this ‘unconventional means’, he requested the Provincial Ombudsman in Alberta to conduct an investigation into the way the department of Amicus Curiae in Alberta is run. However, the author alleges that the Attorney-General of Alberta invoked technical objections, thus denying the ombudsman the opportunity to investigate the matter and to establish the author’s allegations. He also reported the lower court judge to the Chief Justice of Alberta and to the Judicial Council. However, ‘the Judicial Council refused to conduct an investigation, thus effectively denying me the opportunity to prove my allegations of bias and denying me the means to ask for a new trial on the issue of custody.’ The author also forwards press reports showing that recently many other divorced fathers have unsuccessfully attempted to sue the Amicus Curiae, but that the Master in Chambers (who is not a judge) has blocked the legal action, ‘thus denying citizens of this province the fundamental constitutional right of having their cases determined in court.’ ¶6.4. The author concludes that domestic remedies, to the extent that they can be considered effective, have been exhausted. He further emphasizes the time factor ‘since the harm to my son continues until a solution is reached.’

The State Party argued the following: ¶5.2. With regard to the author’s claim concerning custody, the State party points out that while he appealed to the Court of Appeal of Alberta on the issues of maintenance and

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division of matrimonial property, he did not appeal on the issue of custody, although he could have done so pursuant to the Alberta Judicature Act of 1980. . . . ¶5.4. With regard to maintenance and division of property, the State party notes that the author has failed to seek leave to appeal the judgement of the Alberta Court of Appeal to the Supreme Court of Canada. It is submitted that leave to appeal in at least 18 maintenance and/or matrimonial property cases has been granted by the Supreme Court of Canada since 1975 and that in eight of these cases the appeal was allowed. Thus, ‘leave to appeal to the Supreme Court of Canada on these matters is an effective and sufficient domestic remedy, although of course the relative merits of the case will affect the likelihood of relief being granted. Certain delays are inevitably involved in invoking the appellate jurisdiction of the highest court of any country, but Canada submits that the time periods involved in proceedings before the Supreme Court of Canada are not untoward in this regard, and that they are least prejudicial in matters such as the present, involving solely financial and property interests.’

The HRC found in favour of the State Party on this point: ¶7.2. The Committee observes in this respect, on the basis of the information available to it, that the author has failed to pursue remedies which the State party has submitted were available to him, namely, an appeal to the Court of Appeal on the issue of custody and an application for leave to appeal to the Supreme Court of Canada on the issues of maintenance and division of matrimonial property. The Committee has noted the author’s belief that a further appeal on the issue of custody would be futile and that a procedure before the Supreme Court of Canada would entail a further delay. The Committee finds, however, that, in the particular circumstances disclosed by the communication, the author’s doubts about the effectiveness of these remedies are not warranted and do not absolve him from exhausting them, as required by article 5, paragraph 2 (b), of the Optional Protocol. The Committee accordingly concludes that domestic remedies have not been exhausted.

The State Party did not address the author’s arguments that decisions regarding child custody were essentially within the discretion of the trial judge. In this respect, the strict burden of proof imposed in the CF case does not appear to have been fulfilled. [6.47] Indeed, McGoldrick argues convincingly that it is ‘difficult to establish whether the initial burden is on the author to provide evidence that he has satisfied domestic remedies or on the State party to prove that domestic remedies are available and effective’.46 He suggests that the initial burden is probably with the author, though that burden is ‘probably not too heavy’.47 Conçado Trindade, writing in the very early years of the HRC, also felt that the Committee had taken a ‘flexible’ approach by sharing and distributing the burden of proof between the State and the complainant.48

See D McGoldrick, The Human Rights Committee (Clarendon Press, 1994), 189. McGoldrick, The Human Rights Committee, 189. See also comments at [6.20]–[6.21] regarding the burden of proof in situations where there has been a breakdown in the rule of law. 48 See A Conçado Trindade, ‘Exhaustion of Local Remedies under the UN Covenant on Civil and Political Rights and its Optional Protocol’ (1979) 28 ICLQ 734 at 758–9, 762, and 764. 46 47

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[6.48] In Muhonen v Finland (89/81), the author alleged violations of his rights under article 14(6). The State Party alleged that he could have sought an ‘extraordinary remedy’, seeking to annul an impugned decision of the Minister of Justice.49 Despite the State Party’s submission of detailed evidence of the mechanics of this extraordinary remedy, the HRC found that it was not a remedy that had to be exhausted by the author.50 This indicates that States Parties bear a heavy burden of proof in proving the effectiveness of remedies outside the judicial mainstream. Indeed, the apparent difference between the CF v Canada [6.45] and SHB v Canada [6.46] decisions may be explained by the fact that the available remedy in SHB involved the ordinary passage of an appeal from a lower court to a higher court, whereas CF concerned the more unusual remedy of a judicial declaration.51

Conclusion [6.49] The HRC has been fairly strict in implementing the domestic remedies rule: it is the most common reason for rejecting the admissibility of communications. However, it has demonstrated some flexibility regarding the futility of remedies which may, for example, be demonstrated by a State Party’s continual failure to implement apparently available remedies, adverse higher court precedents, the unreasonable prolongation of available remedies, and occasionally the costliness of available remedies. The HRC has also been flexible in its allocation of the burden of proof between the author and the State Party with regard to questions of the proper exhaustion of effective local remedies.

49

50 At paras 4.2–5.2. At para 6.1. For example, the State Party conceded at para 7.3 in CF that a declaration ‘does not pronounce any direct sanction against a defendant if he or she fails to respect it’. Rather, a declaration represented judicial guidance for the legality of future actions. 51

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Part III

Civil and Political Rights

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7 Right of Self-determination—Article 1 • Definition of Self-determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Peoples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • External Self-determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Internal Self-determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Article 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Article 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Non-justiciability under the First Optional Protocol . . . . . . . . . . . . . . . . • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[7.03] [7.06] [7.09] [7.13] [7.19] [7.22] [7.24] [7.26]

ARTICLE 1 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefits, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

[7.01] Article 1 is common to both the ICCPR and the International Covenant on Economic Social and Cultural Rights, highlighting the complex nature of the right of self-determination, and its importance for the achievement of all civil, political, economic, social, and cultural rights. GENERAL COMMENT 12 ¶1. . . . The right of self-determination is of particular importance because its realisation is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants and placed this provision as article 1 apart from and before all of the other rights in the two Covenants.

[7.02] The Committee on the Elimination of Racial Discrimination (CERD), along with the Human Rights Committee (HRC), has issued a general comment on the topic. The CERD General Recommendation is far more detailed and useful than the HRC Comment.

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Definition of Self-determination [7.03] The HRC has issued very little jurisprudence on the meaning of self-determination for the purposes of the ICCPR. This is partly due to its refusal to admit article 1 complaints under the First Optional Protocol [7.24]. Furthermore, its General Comment on article 1 fails to give any clear definition beyond reiteration of the express words of article 1. [7.04]

GENERAL COMMENT 12

¶2. Article 1 enshrines an inalienable right of all peoples as described in its paragraphs 1 and 2. By virtue of that right they freely ‘determine their political status and freely pursue their economic, social and cultural development’. The article imposes on all States parties corresponding obligations. This right and the corresponding obligations concerning its implementation are interrelated with other provisions of the Covenant and rules of international law. . . . ¶7. In connection with article 1 of the Covenant, the Committee refers to other international instruments concerning the right of all peoples to self-determination, in particular the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, adopted by the General Assembly on 24 October 1970 (General Assembly Resolution 2625 (XXV)).

[7.05] The Comment obliquely refers to other ‘international law’ obligations, indicating the ICCPR meaning accords with the international legal meaning of self-determination.1 The most important international law document in this respect is, as indicated in paragraph 7, General Assembly Resolution 2625, the ‘Declaration on Friendly Relations’.2 The Declaration describes the right of self-determination as ‘the right of peoples to be free from alien subjugation, domination and exploitation’. However, the interpretation of ‘peoples’ and ‘alien subjugation’ remains controversial. PEOPLES

[7.06] Self-determination is the collective right of ‘peoples’. Various conditions or characteristics of ‘peoples’ have been put forward, including common historical tradition, racial or ethnic identity, cultural homogeneity, linguistic unity, religious or ideological affinity, territorial connection, common economic life, and consisting of a certain minimum number.3 However, no permanent, universally

However, see D McGoldrick, The Human Rights Committee (Clarendon Press, 1993), 248. H Hannum, ‘Rethinking Self-Determination’ (1993) 34 Virginia Journal of International Law 1, 14. The CERD General Recommendation 21 on Self-Determination also endorses the Declaration on Friendly Relations at para 3. 3 See R McCorquodale, ‘Self-Determination: A Human Rights Approach’ (1994) 43 ICLQ 857, 866, n 52, and R White, ‘Self-Determination: Time for a Re-Assessment?’ (1981) 28 Netherlands International Law Review 147, 163, n 52, quoting a report by the International Commission of Jurists, The Events in East Pakistan (ICJ, 1972), 70. 1 2

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4

acceptable list of criteria for a ‘people’ exists. Neither the HRC nor the CERD Committee has postulated a definition. [7.07]

GILLOT et al v FRANCE (932/00)

The authors were French residents of the French colony of New Caledonia. Their complaint related to restrictions on their rights to vote in referendums, including one plebiscite in 1998 and future plebiscites from 2014 onwards, which were ultimately to determine the status of New Caledonia for the purposes of an exercise of self-determination by its peoples. The first referendum was for the purpose of deciding whether to continue the process of self-determination. The future referendums will relate to the mode of self-determination, whether by independence or other means. The impugned voting restrictions, for the purposes of these plebiscites, were described as follows by the authors: ¶2.5. For the first referendum on 8 November 1998, Decree No. 98–733 of 20 August 1998 on organization of a referendum of the people of New Caledonia, as provided for by article 76 of the Constitution, determined the electorate with reference to article 2 of Act No. 88–1028 of 9 November 1988 (also determined in article 6.3 of the Noumea Accord), namely: ‘Persons registered on the electoral rolls for the territory on that date and resident in New Caledonia since 6 November 1988 shall be eligible to vote.’ ¶2.6. For future referendums, the electorate was determined by the French Parliament in article 218 of the Organic Law of New Caledonia (No. 99–209) of 19 March 1999 (reflecting article 2.2 of the Noumea Accord (2)), pursuant to which: ‘Persons registered on the electoral roll on the date of the referendum and fulfilling one of the following conditions shall be eligible to vote: (a) They must have been eligible to participate in the referendum of 8 November 1998; (b) They were not registered on the electoral roll for the referendum of 8 November 1998, but fulfilled the residence requirement for that referendum; (c) They were not registered on the electoral roll for the 8 November 1998 referendum owing to non-fulfilment of the residence requirement, but must be able to prove that their absence was due to family, professional or medical reasons; (d) They must enjoy customary civil status or, having been born in New Caledonia, they must have their main moral and material interests in the territory; (e) Having one parent born in New Caledonia, they must have their main moral and material interests in the territory; (f) They must be able to prove 20 years’ continuous residence in New Caledonia on the date of the referendum or by 31 December 2014 at the latest; (g) Having been born before 1 January 1989, they must have been resident in New Caledonia from 1988 to 1998;

4 McCorquodale, ‘Self-Determination: A Human Rights Approach’, 865; M Koskenniemi, ‘National Self-Determination Today: Problems of Legal Theory and Practice’ (1994) 43 ICLQ 241, 261.

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¶2.7. The authors, who did not fulfil the above criteria, state that they were excluded from the referendum of 8 November 1998 and that they will also be excluded from referendums planned from 2014 onwards.

The case was brought under article 25, which guarantees the right to vote, as well as article 26 guaranteeing freedom from discrimination. Article 1 however was very relevant to the HRC’s reasoning, even though the self-determination guarantee is not justiciable under the OP [7.24]. The HRC found that the voting restrictions in the referendums (past and future) on self-determination were not unreasonable, in light of article 1 of the ICCPR, and therefore did not breach articles 25 and 26. ¶11.2. The Committee has to determine whether the restrictions imposed on the electorate for the purposes of the local referendums of 8 November 1998 and in 2014 or thereafter constitute a violation of articles 25 and 26 of the Covenant, as the authors maintain. . . . ¶13.3. In the present case, the Committee has taken note of the fact that the local ballots were conducted in the context of a process of self-determination of the population of New Caledonia. In this connection, it has taken into consideration the State party’s argument that these referendums—for which the procedures were fixed by the Noumea Accord and established according to the type of ballot by a vote of Congress or Parliament—must, by virtue of their purpose, provide means of determining the opinion of, not the whole of the national population, but the persons ‘concerned’ by the future of New Caledonia. ¶13.4. Although the Committee does not have the competence under the Optional Protocol to consider a communication alleging violation of the right to self-determination protected in article 1 of the Covenant, it may interpret article 1, when this is relevant, in determining whether rights protected in parts II and III of the Covenant have been violated. The Committee is of the view, therefore, that, in this case, it may take article 1 into account in interpretation of article 25 of the Covenant. ¶13.5. In relation to the authors’ complaints, the Committee observes, as the State party indeed confirms, that the criteria governing the right to vote in the referendums have the effect of establishing a restricted electorate and hence a differentiation between (a) persons deprived of the right to vote, including the author(s) in the ballot in question, and (b) persons permitted to exercise this right, owing to their sufficiently strong links with the territory whose institutional development is at issue. The question which the Committee must decide, therefore, is whether this differentiation is compatible with article 25 of the Covenant. The Committee recalls that not all differentiation constitutes discrimination if it is based on objective and reasonable criteria and the purpose sought is legitimate under the Covenant. ¶13.6. The Committee has, first of all, to consider whether the criteria used to determine the restricted electorates are objective.

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¶13.7. The Committee observes that, in conformity with the issue in each ballot, apart from the requirement of inclusion on the electoral rolls, the criteria used are: (a) for the 1998 referendum relating to the continuation or non-continuation of the process of self-determination, the condition of length of residence in New Caledonia; and (b) for the purpose of future referendums directly relating to the option of independence, additional conditions relating to possession of customary civil status, the presence in the territory of moral and material interests, combined with birth of the person concerned or his parents in the territory. It accordingly follows, as the date for a decision on self-determination approaches, that the criteria are more numerous and take into account the specific factors attesting to the strength of the links to the territory. To the length of residence condition (as opposed to the cut-off points for length of residence) for determining a general link with the territory are added more specific links. ¶13.8. The Committee considers that the above-mentioned criteria are based on objective elements for differentiating between residents as regards their relationship with New Caledonia, namely the different forms of ties to the territory, whether specific or general—in conformity with the purpose and nature of each ballot. . . . ¶13.14. The Committee also has to examine whether the differentiation resulting from the above-mentioned criteria is reasonable and whether the purpose sought is lawful vis-à-vis the Covenant. . . . ¶13.16. The Committee recalls that, in the present case, article 25 of the Covenant must be considered in conjunction with article 1. It therefore considers that the criteria established are reasonable to the extent that they are applied strictly and solely to ballots held in the framework of a self-determination process. Such criteria, therefore, can be justified only in relation to article 1 of the Covenant, which the State party does. Without expressing a view on the definition of the concept of ‘peoples’ as referred to in article 1, the Committee considers that, in the present case, it would not be unreasonable to limit participation in local referendums to persons ‘concerned’ by the future of New Caledonia who have proven, sufficiently strong ties to that territory. The Committee notes, in particular, the conclusions of the Senior Advocate-General of the Court of Cassation, to the effect that in every self-determination process limitations of the electorate are legitimized by the need to ensure a sufficient definition of identity. The Committee also takes into consideration the fact that the Noumea Accord and the Organic Law of 19 March 1999 recognize a New Caledonian citizenship (not excluding French citizenship but linked to it), reflecting the common destiny chosen and providing the basis for the restrictions on the electorate, in particular for the purpose of the final referendum. ¶13.17. Furthermore, in the Committee’s view, the restrictions on the electorate resulting from the criteria used for the referendum of 1998 and referendums from 2014 onwards respect the criterion of proportionality to the extent that they are strictly limited ratione loci to local ballots on self-determination and therefore have no consequences for participation in general elections, whether legislative, presidential, European or municipal, or other referendums. ¶13.18. Consequently, the Committee considers that the criteria for the determination of the electorates for the referendums of 1998 and 2014 or thereafter are not discriminatory, but are based on objective grounds for differentiation that are reasonable and compatible with the provisions of the Covenant. ¶14.1. Lastly, the authors argue that the cut-off points set for the length of residence requirement, 10 and 20 years respectively for the referendums in question, are excessive and affect their right to vote. . . .

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¶14.7. Noting that the length of residence criterion is not discriminatory, the Committee considers that, in the present case, the cut-off points set for the referendum of 1998 and referendums from 2014 onwards are not excessive inasmuch as they are in keeping with the nature and purpose of these ballots, namely a self-determination process involving the participation of persons able to prove sufficiently strong ties to the territory whose future is being decided. This being the case, these cut-off points do not appear to be disproportionate with respect to a decolonization process involving the participation of residents who, over and above their ethnic origin or political affiliation, have helped, and continue to help, build New Caledonia through their sufficiently strong ties to the territory.

The extent of the voting rights for the referendums in New Caledonia corresponded with the French government’s definition of the appropriate peoples who had a right to determine the future political status of that French colony. The HRC apparently approved of that definition, which restricted self-determination rights to persons with a long-standing connection to the territory. [7.08] Much contemporary scholarship on self-determination divides the right into a right of external self-determination (ESD) and a right of internal self-determination (ISD).5 The definition of ‘peoples’ in terms of the ICCPR becomes less contentious if one recognizes that all peoples are entitled to some form of self-determination, though not all peoples are entitled to the most radical manifestation of the right, ESD. In this respect, a ‘people’ may be broadly defined as a group with a common racial or ethnic identity, or a cultural identity (which could incorporate political, religious, or linguistic elements) built up over a long period of time.6 EXTERNAL SELF-DETERMINATION

[7.09]

CERD GENERAL RECOMMENDATION 21

¶4. . . . The external aspect of self-determination implies that all peoples have the right to determine freely their political status and their place in the international community based upon the principle of equal rights and exemplified by the liberation of peoples from colonialism and by the prohibition to subject peoples to alien subjugation, domination, and exploitation.

[7.10] A claim of ESD equates with a claim by a people to a certain territory.7 ESD is exercised by maintaining existing State boundaries or changing the boundaries of existing States. The first form of ESD arises where the relevant ‘self determination unit’ is the population of an existing State. The latter arises where the relevant ‘self determination unit’ wishes to break away from an existing State. The most controversial mode of exercising ESD is by way of secession.8 During the 1950s and 1960s, the right of secession, and indeed the notion of 5 See eg McCorquodale, ‘Self-Determination: A Human Rights Approach’, 863, and M Pomerance, Self-Determination in Law and Practice (Martinus Nijhoff Publishers, 1982), 37–42. 6 S Joseph, ‘Resolving Conflicting Claims of Territorial Sovereignty and External Self-Determination, Part 1’ (1999) 3(1) International Journal of Human Rights 40, 42–5. 7 L Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ (1991) 16 Yale Journal of International Law 177. 8 The Declaration on Friendly Relations specifies other modes: free association or integration with another independent State.

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self-determination, was intertwined with the notion of decolonization. However, in the post-Cold War era, a number of non-colonial peoples have successfully seceded, including the peoples of the former USSR, the former Czechoslovakia, the former Yugoslavia, Eritrea, East Timor, and South Sudan. Furthermore, the text of article 1 does not expressly confine the right on colonial peoples. Indeed, the HRC has now confirmed that the principle of self-determination, and possibly the right of secession in some instances, ‘applies to all peoples, and not merely to colonised peoples’.10 [7.11] The right of ESD is politically controversial, as it clearly threatens the territorial integrity of States. CERD GENERAL RECOMMENDATION 21 ¶1. The Committee notes that ethnic or religious groups or minorities frequently refer to the right of self-determination as a basis for an alleged right to secession. . . . ¶6. The Committee emphasises that, in accordance with the Declaration of the General Assembly on Friendly Relations, none of the Committee’s actions shall be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples and possessing a government representing the whole people belonging to the territory without distinction as to race, creed or colour. In view of the Committee international law has not recognised a general right of peoples to unilaterally declare secession from a state. In this respect, the Committee follows the views expressed in the Agenda for Peace (paras. 17 et seq.), namely that a fragmentation of States may be detrimental to the protection of human rights as well as to the preservation of peace and security. This does not, however, exclude the possibility of arrangements reached by free agreements of all parties concerned.11

[7.12] The HRC has largely avoided consensus comments on the territorial aspirations of secessionist groups within existing States Parties. Future potential candidates for secession include the Chechens, the Quebecois, and the Kosovars, though the existence of an international right of secession for such peoples would likely be opposed by, respectively, the Russian Federation, Canada, and the Federal Republic of Yugoslavia. The HRC has, however, criticized Morocco’s policies regarding the Western Sahara:12 ¶9. The Committee remains concerned about the very slow pace of the preparations towards a referendum in Western Sahara on the question of self-determination, and at the lack of information on the implementation of human rights in that region. The State party should 9 Western Sahara Advisory Opinion [1975] ICJ Rep 12, 37. See also G Simpson, ‘The Diffusion of Sovereignty: Self-determination in the Post-Colonial Age’ (1996) 32 Stanford Journal of International Law 255, 265, and R McCorquodale, ‘South Africa and the Right of Self-Determination’ (1994) 10 South African Journal on Human Rights 4, 6. See also CERD General Recommendation 21, para 4 [7.09]. 10 Concluding Comments on Azerbaijan (1994) UN doc CCPR/C/79/Add.38, para 6. 11 The ‘Agenda for Peace’ was issued in 1992 by Secretary General Boutros Boutros Ghali (1992) UN doc A/47/277-S/24111. 12 (1999) UN doc CCPR/C/79/Add.113.

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move expeditiously and cooperate fully in the completion of the necessary preparations for the referendum. . . .

As the International Court of Justice has ruled that the peoples of the Western Sahara have a right of external self-determination,13 it is not surprising that the HRC has singled out their secessionist aspirations for explicit endorsement.14 INTERNAL SELF-DETERMINATION

[7.13] ISD refers to the right of peoples to choose their political status within a State,15 or to exercise a right of meaningful political participation. For example, the institution of democratic rule in South Africa constituted an exercise of ISD by the black majority in South Africa. The notion of ISD overlaps considerably with the rights guaranteed in articles 25 (right of political participation) and 27 (minority rights)16 of the ICCPR. Indeed, Cassese describes ISD as a ‘manifestation of the totality of rights embodied in the Covenant’.17 [7.14]

CERD GENERAL RECOMMENDATION 21

¶4. . . . The right to self-determination of peoples has an internal aspect, ie. the rights of all peoples to pursue freely their economic, social and cultural development without outside interference. In that respect there exists a link with the right of every citizen to take part in the conduct of public affairs at any level as referred to in article 5 (c) of the International Convention on the Elimination of All Forms of Racial Discrimination. In consequence, governments are to represent the whole population without distinction as to race, colour, descent, national, or ethnic origins. ¶5. In order to respect fully the rights of all peoples within a state, governments are again called upon to adhere to and implement fully the international human rights instruments and in particular the International Convention on the Elimination of All Forms of Racial Discrimination. Concern for the protection of individual rights without discrimination on racial, ethnic, tribal, religious, or other grounds must guide the policies of governments. In accordance with article 2 of the International Convention on the Elimination of All Forms of Racial Discrimination and other relevant international documents, governments should be sensitive towards the rights of persons of ethnic groups, particularly their right to lead lives of dignity, to preserve their culture, to share equitably in the fruits of national growth, and to play their part in the government of the country of which its members are citizens. Also, governments should consider, within their respective constitutional frameworks, vesting persons of ethnic or linguistic groups comprised of their citizens, where appropriate, with the right to engage in such activities which are particularly relevant to the preservation of the identity of such persons or groups.

Western Sahara Advisory Opinion [1975] ICJ Rep 12. See also Concluding Observations on Morocco (2004) UN doc CCPR/CO/82/MAR, para 8; United States of America (2006) UN doc CCPR/C/USA/CO/3/Rev.1, para 37; Panama (2008) UN doc CCPR/C/PAN/CO/3, para 21. 15 McCorquodale, ‘Self-Determination: A Human Rights Approach’, 864. 16 See generally Ch 24. 17 A Cassese, Self-Determination of Peoples (Cambridge University Press, 1995). 13 14

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[7.15] Self-determination is therefore a complex right, entailing an ‘internal’ and an ‘external’ form. The right can be conceptualized as a sliding scale of different levels of entitlement to political emancipation, constituting various forms of ISD up to the apex of the right, the right of ESD, which vests only in exceptional circumstances.18 Different ‘peoples’ are entitled to different ‘levels’ of self-determination. [7.16] It is contended that a people is entitled to ESD,19 by way of secession, when it lives under colonial20 or neo-colonial domination,21 or when it is so severely persecuted, and its human rights so systematically abused, that ESD is necessary to remedy such abuse, and preserve its long-term viability as a people.22 Alternatively, peoples may reach free agreements to secede from each other,23 as occurred when Czechoslovakia peacefully split into the Czech and Slovak Republics in 1993. Finally, peoples which are not entitled to ESD are nevertheless entitled to ISD. [7.17] The HRC has cited article 1 in raising concerns with Israel over the expansion of settlements in the Occupied Territories, and has recommended that it ‘cease all construction of settlements in’ those territories.24 [7.18] Indigenous peoples are peoples entitled to internal self-determination. For example, the HRC has said with respect to Finland:25 ¶17. The Committee regrets that it has not received a clear answer concerning the rights of the Sami as an indigenous people (Constitution, sect. 17, subsect. 3), in the light of article 1 of the Covenant. It reiterates its concern over the failure to settle the question of Sami rights to land ownership and the various public and private uses of land that affect the Sami’s traditional means of subsistence—in particular reindeer breeding—thus endangering their traditional culture and way of life, and hence their identity. 18 F Kirgis Jr, ‘The Degrees of Self-Determination in the United Nations Era’ (1994) 88 American Journal of International Law 304, 306, and B Kingsbury, ‘Claims by Non-State Groups in International Law’ (1992) 25 Cornell International Law Journal 481, 503. 19 See generally on situations where peoples should be recognized as having a right of ESD, S Joseph, ‘Resolving Conflicting Claims of Territorial Sovereignty and External Self-Determination, Part 1’, and S Joseph, ‘Resolving Conflicting Claims of Territorial Sovereignty and External Self-Determination, Part 2’ (1999) 3(2) International Journal of Human Rights 49. 20 See [7.10]. 21 Post-Second World War invasions can be termed ‘neo-colonial situations’, and have rarely been recognized as valid by the international community. See eg regarding the Indonesian invasion of East Timor, GA Res 3485 (XXX) and SC Res 384 (1975). See, regarding the Chinese invasion of Tibet, GA Res 1723/16 (20 December 1961). See eg regarding the Israeli Occupied Territories, UN doc A/ RES/ES-7/2, GAOR, 7th Emergency Session, Supp 1, 3 (1980). See, regarding the Turkish invasion of northern Cyprus, SC Res 353 (1974), SC Res 440 (1978), and SC Res 541, 18 November 1983. See also S Joseph, ‘Resolving Conflicting Claims of Territorial Sovereignty and External Self-Determination, Part 2’, 52–3. 22 Numerous commentators have recognized a right of ‘remedial ESD’ such as L Buchheit, Secession: The Legitimacy of Self-Determination (Yale University Press, 1978), 220, and White, ‘Self-Determination: Time for a Re-Assessment?’, 160. Its existence is also implied by the Declaration on Friendly Relations, which guarantees territorial integrity only to States which are ‘conducting themselves in compliance with the principles of equal rights and self-determination of people’. See also CERD General Recommendation 21, para 6 [7.11]. 23 See eg CERD General Recommendation 21, para 6 [7.11]. 24 See Concluding Observations on Israel (2010) UN doc CCPR/C/ISR/CO/3, para 16. 25 (2004) UN doc CCPR/CO/82/FIN; see also Concluding Observations on Chile (2007) UN doc CCPR/C/CHL/CO/5, para 19.

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The State party should, in conjunction with the Sami people, swiftly take decisive action to arrive at an appropriate solution to the land dispute with due regard for the need to preserve the Sami identity in accordance with article 27 of the Covenant. Meanwhile it is requested to refrain from any action that might adversely prejudice settlement of the issue of Sami land rights.

This comment also highlights the strong connection between article 1 and article 27 rights.26

Article 1(2) [7.19] Article 1(2) sounds like a very important right. For example, its terms suggest that a government cannot permit mining on a people’s land without its approval.27 The right is tempered by the saving of certain ‘international obligations arising out of international economic cooperation’. However, this tempering may be undone by article 47 of the Covenant,28 which provides: Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilise fully their natural wealth and resources.

[7.20] Unfortunately, the HRC has shed very little light on the terms of article 1(2). Its most significant statements have come in the context of the recognition of indigenous land rights. In Concluding Observations on Canada, the HRC stated:29 ¶8. The Committee notes that, as the State party acknowledged, the situation of the aboriginal peoples remains ‘the most pressing human rights issue facing Canadians’. In this connection, the Committee is particularly concerned that the State party has not yet implemented the recommendations of the Royal Commission on Aboriginal Peoples (RCAP). With reference to the conclusion by RCAP that without a greater share of lands and resources institutions of aboriginal self-government will fail, the Committee emphasises that the right to self-determination requires, inter alia, that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence (art. 1, para. 2). The Committee recommends that decisive and urgent action be taken towards the full implementation of the RCAP recommendations on land and resource allocation. The Committee also recommends that the practice of extinguishing inherent aboriginal rights be abandoned as incompatible with article 1 of the Covenant.

Thus, the extinguishment and presumably the diminution of aboriginal native title rights breaches article 1(2).30

26

27 See [24.02] and [24.03]. See, in this respect, [24.27]ff. McGoldrick, The Human Rights Committee, 15 and 251. 29 (1999) UN doc CCPR/C/79/Add.105. 30 The CERD Committee found the diminution of native title rights in breach of the CERD Convention, as they were racially discriminatory, in Concluding Comments on Australia (1999) UN doc CERD/C/54/Misc.40/Rev.2. As to the nature of self-determination and its relationship with economic and social aspects of subsistence, see SJ Anaya, Indigenous People and International Law (Oxford University Press, 1996). 28

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[7.21] The HRC has also stated with regard to Sweden:

31

¶15. The Committee is concerned at the limited extent to which the Sami Parliament can have a significant role in the decision-making process on issues affecting the traditional lands and economic activities of the indigenous Sami people, such as projects in the fields of hydroelectricity, mining and forestry, as well as the privatization of land. . . .

Thus, indigenous persons should have real political influence over the use to which their traditional lands are put.

Article 1(3) [7.22]

GENERAL COMMENT 12

¶6. Paragraph 3, in the Committee’s opinion, is particularly important in that it imposes specific obligations on States parties, not only in relation to their own peoples but vis-à-vis all peoples which have not been able to exercise or have been deprived of the possibility of exercising their right to self-determination. The general nature of this paragraph is confirmed by its drafting history. . . . The obligations exist irrespective of whether a people entitled to self-determination depends on a State party to the Covenant or not. It follows that all States parties to the Covenant should take positive action to facilitate realisation of and respect for the right of peoples to self-determination. Such positive action must be consistent with the States’ obligations under the Charter of the United Nations and under international law: in particular, States must refrain from interfering in the internal affairs of other States and thereby adversely affecting the exercise of the right to self-determination. . . .

[7.23] Article 1(3) is unusual as it imposes duties on States with regard to persons outside their jurisdiction, indeed even if those people are within the jurisdiction of another State Party.32 This goes beyond the standard obligation in article 2(1) to respect and ensure the Covenant’s rights to persons within the jurisdiction.33 States Parties are expected to take positive measures to ‘promote’ rights of self-determination where they have been denied. Such measures may include the termination of diplomatic relations with States that deny self-determination rights.34 States must, however, conform to the UN Charter, and not ‘interfere in the internal affairs of other States’, and are therefore prohibited from using force to assist an oppressed peoples to achieve self-determination in a foreign State.35 31 Concluding Observations on Sweden (2002) UN doc CCPR/CO/74/SWE. See also [24.27]ff for the OP cases where indigenous peoples have made (largely unsuccessful) complaints about alleged infringement of their cultural rights arising from the use of land. 32 McGoldrick, The Human Rights Committee, 253. See also Ch 4, on territorial limits to a State Party’s responsibility. 33 McGoldrick, The Human Rights Committee, 253. 34 In the 1980s, before the advent of Concluding Comments, individual HRC members questioned State Party representatives regarding relations with Israel (due to its occupation of Palestinian territories) and South Africa (due to its apartheid system); McGoldrick, The Human Rights Committee, 251–2. 35 See J Crawford, The Creation of States in International Law (Clarendon Press, 1979), 114–18. Note that no general doctrine of unilateral humanitarian intervention has yet been formally accepted in international law: see eg B Simma, ‘NATO, the UN, and the Use of Force: Legal Aspects’ (1999) 10 European Journal of International Law 1.

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Non-justiciability under the First Optional Protocol [7.24] Despite the undoubted importance of article 1, the HRC has paradoxically decided that it is not justiciable under the First Optional Protocol. KITOK v SWEDEN (197/85) This case involved a complaint about denial of reindeer husbandry rights to the author, a member of the Sami people of northern Scandinavia, in alleged breach of, inter alia, article 1.36 The HRC ruled the article 1 complaint inadmissible in the following terms: ¶6.3. . . . the Committee observed that the author, as an individual, could not claim to be the victim of a violation of the right of self-determination, enshrined in article 1 of the Covenant. Whereas the Optional Protocol provides a recourse procedure for individuals claiming that their rights have been violated, article 1 . . . deals with rights conferred upon peoples, as such. . . .

The Kitok decision in respect of the non-justiciability of article 1 has been followed in numerous cases, including Ominayak v Canada (167/84),37 Marshall v Canada (205/86),38 Mahuika v New Zealand (547/93),39 and Poma Poma v Peru (1457/06).40 It is regrettable that the HRC has adopted such a narrow interpretation of the ‘victim’ requirement in the Optional Protocol41 so as to preclude article 1 complaints, thus depriving victims of article 1 violations of a valuable measure of international recourse.42 Certain complaints could probably have been more successful if the authors had been permitted to rely on article 1 rather than the Covenant’s individual rights. For example, the authors in Bordes and Temeharo v France (645/95) unsuccessfully complained that French nuclear tests in the vicinity of their islands breached their rights to life and family life [3.45]. Perhaps a complaint under article 1, as the tests were conducted without the consent of the islanders and may have severely harmed the natural environment, would have been more viable. [7.25] In Diergaardt v Namibia (760/97), the authors contended that the political power of their group, the Rehoboth Basters, had been reduced by the division of their ‘traditional’ self-governing territory between two regions, reducing the Basters to a minority within two areas, rather than a majority within one. The contention that the reduction of political power for the group (of ethnic Rehoboth Basters within Namibia) violated article 25 (which guarantees a right to effective

36

See, on the art 27 aspect of this complaint, [24.27]. At para 13.3. Though the Lubicon Lake Band could be termed a ‘people’ for the purposes of art 1, only individuals, rather than peoples, have standing under the OP: see [3.10]–[3.13]. 38 39 At para 5.1 (also known as Mikmaq Tribal Society v Canada). At para 9.2. 40 41 At para 6.3. See also [3.11]ff. 42 Cassese, Self-Determination of Peoples, persuasively argues for a more liberal interpretation of the Optional Protocol in this regard at 141–6 and 345–6. 37

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political participation) foundered due to the individual nature of that right [22.05]. Diergaardt is also an example of a complaint that more clearly raised collective article 1 rights rather than individual justiciable rights. However, it was in any case unlikely that the HRC would have declared Namibia’s constitutional arrangements contrary to article 1 when those arrangements were adopted in furtherance of the article 1 rights of the Namibian peoples, who had long been denied self-determination by South Africa [22.06].

Conclusion [7.26] Article 1 jurisprudence under the ICCPR has been brief and disappointing. It is time for the HRC to issue more significant contributions to the law surrounding this most important of rights. Its ability to do so would be enhanced if it was to drop its narrow approach regarding the non-justiciability of the right under the Optional Protocol. It is also recommended that the Committee on Economic Social and Cultural Rights issue a General Comment on common article 1.

8 The Right to Life—Article 6 • Right to Not be Killed by the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.02] • Attempted Assassination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.15] • Duty to Investigate State Killings . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.16] • Duty to Punish Offenders for State Killings . . . . . . . . . . . . . . . . . . . . [8.22] • Disappearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.27] • Duty to Train Relevant Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.35] • Duty to Protect Detainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.36] • Duty to Control Private Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.41] • Capital Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.46] • Mandatory Death Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.56] • Reintroduction of the Death Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . [8.58] • Right to Seek Pardon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.61] • Persons Exempt from the Death Penalty . . . . . . . . . . . . . . . . . . . . . . . [8.65] • Non-Deportation Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.67] • Extradition to a State with Capital Punishment . . . . . . . . . . . . . . . . . . [8.67] • Other Non-Deportation Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . [8.74] • Environmental and Socio-economic Aspects of Article 6 . . . . . . . . . . . [8.75] • Participation in War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.83] • Nuclear Capability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.84] • Women and the Right to Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.88] • Abortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.90] • Euthanasia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.96] • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [8.100]

ARTICLE 6 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorise any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

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5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

[8.01] Article 6 protects the right to life, which has been described by the Human Rights Committee (HRC) as ‘the supreme right’.1 Article 6 has both a negative component, as in a right to not be arbitrarily or unlawfully deprived of life by the State or its agents, and a positive component, in that the State must adopt measures that are conducive to allowing one to live.

Right to Not be Killed by the State GENERAL COMMENT 6

[8.02]

¶3. The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6(1) is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.

[8.03]

SUÁREZ de GUERRERO v COLOMBIA (45/79)

The HRC based its view on the following facts. On 13 April 1978, a police raid was carried out on a house in Bogotá, in the belief that a kidnapped former Ambassador was being held prisoner there. The Ambassador was not found. However, the police hid in the house and awaited the arrival of the suspected kidnappers. Seven people subsequently entered the house. They were shot and killed by the police. ¶11.5. Although the police initially stated that the victims had died while resisting arrest, brandishing and even firing various weapons, the report of the Institute of Forensic Medicine . . . together with the ballistics reports and the results of the paraffin test, showed that none of the victims had fired a shot and that they had all been killed at pointblank range, some of them shot in the back or in the head. It was also established that the victims were not all killed at the same time, but at intervals, as they arrived at the house, and that most of them had been shot while trying to save themselves from the unexpected attack. . . .

The police involved in the operation were acquitted on charges of causing violent death. This acquittal was directed by a Colombian statute, article 1 of Decree No 0070 of 20 January 1978. ¶11.2. Legislative Decree No. 0070 of 20 January 1978 amended article 25 of the Penal Code ‘for so long as the public order remains disturbed and the national territory is in a 1

General Comment 6, para 1.

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state of siege’. . . . The Decree established a new ground of defence that may be pleaded by members of the police force to exonerate them if an otherwise punishable act was committed ‘in the course of operations planned with the object of preventing and curbing the offences of extortion and kidnapping, and the production and processing of and trafficking in narcotic drugs’.

Despite the fact that the killings were deemed ‘lawful’ in Colombian municipal law, the HRC found that María Fanny Suárez de Guerrero had been ‘arbitrarily’ deprived of her life in contravention of article 6(1). ¶13.2. In the present case it is evident from the fact that seven persons lost their lives as a result of the deliberate action of the police that the deprivation of life was intentional. Moreover, the police action was apparently taken without warning to the victims and without giving them any opportunity to surrender to the police patrol or to offer any explanation of their presence or intentions. There is no evidence that the action of the police was necessary in their own defence or that of others, or that it was necessary to effect the arrest or prevent the escape of the persons concerned. Moreover, the victims were no more than suspects of the kidnapping which had occurred some days earlier and their killing by the police deprived them of all the protections of due process of law laid down by the Covenant. . . . ¶13.3. For these reasons it is the Committee’s view that the action of the police resulting in the death of Mrs. María Fanny Suárez de Guerrero was disproportionate to the requirements of law enforcement in the circumstances of the case and that she was arbitrarily deprived of her life contrary to article 6 (1) of the International Covenant on Civil and Political Rights. Inasmuch as the police action was made justifiable as a matter of Colombian law by Legislative Decree No. 0070 of 20 January 1978, the right to life was not adequately protected by the law of Colombia as required by article 6 (1).

[8.04] The Suárez de Guerrero case confirms that ‘arbitrary’ is a broader concept than ‘unlawful’. That is, a killing may breach article 6 even though it is authorized by domestic law. The prohibition on the ‘arbitrary’ deprivation of life signifies that life must not be taken in unreasonable or disproportionate circumstances. Some indicators of the arbitrariness of a homicidal act are the intention behind and the necessity for that action.2 [8.05] In paragraph 13.3, the HRC confirm that the proportionate requirements of law enforcement will justify the use of lethal force by the State. The HRC describe some relevant law-enforcement requirements at paragraph 13.2 in stating that the killings were not perpetrated for the purposes of the defence of self or others, the execution of an arrest, or the prevention of an escape. These exceptions mirror the express ‘law-enforcement’ exceptions to the right to life in article 2(2) of the European Convention on Human Rights.3

2 See D McGoldrick, The Human Rights Committee (Clarendon Press, 1994), 342. See also how the word ‘arbitrary’ has been interpreted in the context of other guarantees, such as arts 9(1), [11.15] ff, and 17 [16.10]. 3 On art 2(2) of the ECHR, see McCann and Others v UK, Series A, No 324, Judgment of 27 September 1995, and Andronicou v Cyprus, Case 86/1996/705/897, Judgment of 25 August 1997, reported in (1998) 3 Butterworths Human Rights Reports 389.

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[8.06] In recent Concluding Observations on Israel, the HRC deplored the practice of assassinating suspected terrorists.4 It stated: ¶10. The Committee notes the State party’s affirmation that utmost consideration is given to the principles of necessity and proportionality during its conduct of military operations and in response to terrorist threats and attacks. Nevertheless, the Committee reiterates its concern . . . that, since 2003, the State party’s armed forces have targeted and extrajudicially executed 184 individuals in the Gaza Strip, resulting in the collateral unintended death of 155 additional individuals, this despite the State party’s Supreme Court decision of 2006, according to which a stringent proportionality test must be applied and other safeguards respected when targeting individuals for their participation in terrorist activity (art. 6). The State party should end its practice of extrajudicial executions of individuals suspected of involvement in terrorist activities. The State party should ensure that all its agents uphold the principle of proportionality in their responses to terrorist threats and activities. It should also ensure that the utmost care is taken to protect every civilian’s right to life, including civilians in the Gaza Strip. The State party should exhaust all measures for the arrest and detention of a person suspected of involvement in terrorist activities before resorting to the use of deadly force. The State party should also establish an independent body to promptly and thoroughly investigate complaints about disproportionate use of force.

[8.07] In its Concluding Observations on Cyprus in 1994, the HRC was concerned about the ‘wide discretion’ given to police officers regarding ‘the use of force’.5 The HRC recommended that Cyprus redraft the relevant instructions in accordance with the UN’s Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.6 Similar recommendations were made to the United States7 and, most recently, Portugal.8 The UN Basic Principles, and therefore article 6 by implication, strictly limit the use of potentially lethal force. In particular, Basic Principle 9 recommends the use of firearms only ‘when strictly unavoidable in order to protect life’.9 Notably, the HRC recommended to Australia in 2009 that tasers should only be used ‘where greater or lethal force would otherwise have been justified’.10 The HRC has also expressed concern to Israel over its use of lethal force against a ship carrying humanitarian aid to Gaza in defiance of Israel’s blockade of that territory.11 4 Concluding Observations on Israel (2010) UN doc CCPR/C/ISR/CO/3; see also (2003) UN doc CCPR/CO/78/ISR, para 15; see also S Joseph, ‘Denouement of the Deaths on the Rock: The Right to Life of Terrorists’ (1995) 14 Netherlands Quarterly of Human Rights 5. 5 (1995) UN doc CCPR/C/79/Add.39, para 6. 6 (1995) UN doc CCPR/C/79/Add.39, para 18. The Basic Principles are reprinted in UN Human Rights—A Compilation of International Instruments, UN doc A/CONF.144/28 (1990). 7 (1995) UN doc CCPR/C/79/Add.50, para 32. 8 (2003) UN doc CCPR/CO/78/PRT, para 9. See also Concluding Observations on Germany (2004) UN doc CCPR/CO/80/DEU, para 15. 9 See also N Rodley, ‘Rights and Responses to Terrorism in Northern Ireland’, in D Harris and S Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (Clarendon Press, 1995), 142–3. See also Concluding Observations on Liechtenstein (2004) UN doc CCPR/CO/81/LIE, para 10. 10 Concluding Observations on Australia (2009), UN doc CCPR/C/AUS/CO/5, para 21. See also Concluding Observations on New Zealand (2010) UN doc CCPR/C/NZL/CO/5, para 10; Belgium (2010) UN doc CCPR/C/BEL/CO/5, para 13. 11 Concluding Observations on Israel (2010) UN doc CCPR/C/ISR/CO/3, para 8.

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[8.08] Note the ostensible importance of the fact that the Suárez de Guerrero killings were ‘intentional’.12 Do unintentional or negligent killings by State agents breach article 6(1)? This question is addressed in the following case. BURRELL v JAMAICA (546/93) Rickly Burrell was a prisoner on death row in Jamaica who was killed by a warder during a disturbance at the prison in October 1993. Counsel for Burrell submitted evidence that Burrell was shot ‘in cold blood’. The State responded that Burrell had been killed accidentally during the rescue of some warders who had been taken hostage by other prisoners. The HRC found a breach of article 6: ¶9.5. The Committee has carefully examined all information forwarded by both counsel and the State party in relation to Mr. Burrell’s death following the hostage taking of some warders at St. Catherine prison’s death row section, on 31 October 1993. It regrets that the State party has not made available the autopsy report nor the results of the Coroner’s inquest in the case. The Committee notes that counsel has alleged, on the basis of letters received from other inmates in St. Catherine Prison, that Mr. Burrell was shot after the warders were already released, and thus the need for force no longer existed. The Committee notes that the State party itself has acknowledged that Mr. Burrell’s death was the unfortunate result of confusion on the side of the warders, who panicked when seeing some of their colleagues being threatened by the inmates, and that the report submitted by the State party acknowledges that the shooting continued after the warders were rescued. In the circumstances, the Committee concludes that the State party has failed in taking effective measures to protect Mr. Burrell’s life, in violation of article 6, paragraph 1, of the Covenant.

It appears as if the HRC gave the State Party the benefit of the doubt and accepted its contention that Burrell’s killing was not intentional. The HRC nevertheless found that the killing was a breach of article 6. The State failed in its negative duty not to kill arbitrarily, and failed in its positive duty to protect Burrell’s life whilst he was in State custody.13 [8.09]

UMATELIEV v KYRGYZSTAN (1275/04)

This case concerned the death of the authors’ son after police had fired live rounds into a mass demonstration. A breach of article 6 was found, even though there was no suggestion that the police had deliberately targeted the victim: ¶9.5. . . . [T]he deprivation of life by the authorities of the State is a matter of utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities. The Committee takes into account that the arguments provided by the authors point towards the State party’s direct responsibility for Eldiyar Umetaliev’s death through an excessive use of force, and considers that these statements, which the State party has not contested, and which the authors have sufficiently substantiated, warrant the finding that there has been a violation of article 6, paragraph 1, of the Covenant, with regard to Eldiyar Umetaliev.

12

At para 13.2.

13

See also Dermit Barbato v Uruguay (84/81)[8.36].

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DOMÍNGUEZ v PARAGUAY (1828/08)

The facts are evident from the finding of violation: ¶7.2. The Committee takes note of the author’s allegations to the effect that her husband was the victim of an arbitrary execution as a result of the unlawful, unnecessary and disproportionate use of force by police officers during a demonstration. She alleges that he was shot at close range after surrendering and subsequently struck on the head. She also alleges that the investigation into the incident was not conducted efficiently, that the circumstances surrounding the incident have still not been clarified and that responsibility has not been determined despite the time that has elapsed. . . . [T]he State party has submitted no specific evidence shedding light on how or by whom Blanco Domínguez was fatally wounded. . . . ¶7.5. The Committee considers that the State has an obligation to protect the life of persons under its jurisdiction and, in the present case, the State party had the obligation to protect the life of the demonstrators. The grave circumstances surrounding the death of Blanco Domínguez call for an effective investigation into the possible involvement of the State party’s police forces. Despite the foregoing, the State party has not explained why the investigation that began on 16 June 2003 has made so little progress and still not reached any definitive conclusion. The Committee takes note of the author’s statement, which has not been contested by the State party, to the effect that no autopsy was carried out and that the projectile extracted from the body of Blanco Domínguez was not examined and has been misplaced, which now makes it impossible to elucidate particularly important aspects of the investigation. The Committee also recalls that the burden of proof cannot rest alone on the author of the communication, especially considering that the author and the State party do not always have equal access to evidence and that frequently the State party alone has access to relevant information. It is implicit in article 4, paragraph 2, of the Optional Protocol, that the State party has the duty to investigate in good faith all allegations of violations of the Covenant made against it and its authorities, and to furnish to the Committee whatever information it has available. In view of the foregoing, the Committee concludes that the facts before it reveal a violation of article 6, paragraph 1, of the Covenant, and of article 2, paragraph 3, of the Covenant, read in conjunction with article 6, paragraph 1.

It seems there was less clear evidence of official involvement in the shooting in Domínguez than in Umateliev. However, given the State’s botched effort (or lack therof) in investigating the matter, the HRC found a direct violation of article 6, as well as a violation of article 2(3) in conjunction with article 6 in relation to the lack of an investigation.14 [8.11] In Concluding Observations on the United Kingdom, the HRC commented in 2008 on ‘the slowness of the proceedings designed to establish responsibility for the killing of Jean Charles de Menezes and at the circumstances under which he was shot by police at Stockwell underground railway station’.15 Mr de Menezes was mistakenly shot by the UK Metropolitan police when he was mistaken for a suicide bomber in July 2005. The HRC recommended that the United Kingdom follow up the coroner’s eventual findings ‘vigorously, including on questions of individual responsibility, intelligence failures and police training’.16 See also Benitez v Paraguay (1829/08) [25.12]. (2008) UN doc CCPR/C/GBR/CO/6, para 10. 16 (2008) UN doc CCPR/C/GBR/CO/6, para 10. 14 15

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This case displays the HRC’s approach to fact-finding regarding the cause of a death, where the cause is disputed between an author and the State Party. Here, it found that the State was directly responsible for the death in custody of the author’s son, and was in breach of article 6: ¶9.3. The Committee notes that, in the present case, the author’s son was arrested on 6 May 2003 by officers of the National Security Service and, as confirmed by the State party . . . , he had not complained about his health that day. The author argues that his son was in good health prior to his detention and that he was not aware that he was suffering from an illness of any kind. Nine days later, that is, on 15 May 2003, he died in the Kashkadarya Regional Medical Centre. According to the official forensic medical report No. 45 of 30 May 2003, the author’s son suffered from several chronic and life-threatening illnesses, inter alia, hypertension, a severe form of pulmonary asthma, a chronic renal insufficiency, a severe form of anaemia, chronic bronchitis and pneumonia, and died from hypertension, which resulted in the abnormality of cerebral blood circulation and a brain haemorrhage. The Committee further notes that the State party refers to the testimony of an officer of the IVS of the Department of Internal Affairs of Karshi City . . . , according to which the author’s son had to be hospitalized ‘as he got hydrophobia’. The State party, however, has not provided any explanation as to what could have triggered a bout of hydrophobia in custody. ¶9.4. The Committee notes that a medical certificate provided by the author to the Committee attests to the claim that his son was not registered by the medical institution at his habitual place of residence for any regular medical check-ups in relation to any illness. Although the State party argued that a lack of such registration at the deceased’s habitual place of residence is inconclusive, it has not provided any evidence that would suggest that he had indeed suffered from any of the above-mentioned illnesses prior to being taken into custody. In addition, the State party has not explained why the author was repeatedly returned to his place of detention from the Kashkadarya Regional Medical Centre, having, according to the State party’s own medical reports, required urgent medical attention on several occasions within the space of only a few days. Given that the author’s son ultimately died in the same Medical Centre, the Committee would have expected an investigation or at the very least an explanation from the State party of the reasons why he was continually released back into detention and why the author was not notified about his son’s grave medical condition in time before his death. ¶9.5. The Committee notes that the author complained about a lack of impartiality and other inadequacies in the State party’s investigation into his son’s death and that he provided a detailed description of injuries on his son’s body, suggesting that he had died from an unnatural death. . . . The Committee notes that the author’s description of the injuries is corroborated either by photographic evidence submitted to the Committee or by the State party’s own forensic medical reports. In particular, the reports attest to the fact that seven of the deceased’s ribs were broken. The official investigations conducted by the Prosecutor’s Office on three occasions resulted in a conclusion that there were no grounds to institute criminal proceedings in relation to the death of the author’s son for lack of corpus delicti in anyone’s actions. ¶9.6. In this regard, the Committee recalls that the burden of proof cannot rest alone on the author of the communication, especially considering that the author and the State party do not always have equal access to evidence and that frequently the State party alone has access to relevant information. It is implicit in article 4, paragraph 2, of the Optional

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Protocol that the State party has the duty to investigate in good faith all allegations of violation of the Covenant made against it and its authorities, and to furnish to the Committee the information available to it. The Committee observes that in cases in which the established investigative procedures are inadequate and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, States parties should pursue investigations through an independent commission of inquiry or similar procedure. If the body of the deceased person has been buried and it later appears that an investigation is required, the body should be promptly and competently exhumed for an autopsy. The autopsy report must describe any and all injuries to the deceased including any evidence of torture. Families of the deceased and their legal representatives should have access to all information relevant to the investigation, and should be entitled to present other evidence. ¶9.7. The Committee observes that in the present case the arguments provided by the author point towards the State party’s direct responsibility for his son’s death by torture and, inter alia, necessitated at the very minimum a separate independent investigation of the potential involvement of the State party’s law-enforcement officers in the torture and death of the author’s son. The Committee considers, therefore, that the State party’s failure to, inter alia, exhume the body of the author’s son and to properly address any of the author’s claims raised at the domestic level and in the context of the present communication about inconsistencies between injuries on his son’s body and the explanations advanced by the State party’s authorities, warrant the finding that there has been a violation of article 6, paragraph 1, and article 7, of the Covenant, with regard to the author’s son.

[8.13]

ZHUMBAEVA v KYRGYSZTAN (1756/08)

As with Eshonov, the HRC took a rigorous evidential approach in finding that the State was responsible for a death in custody. The facts are evident in the finding of violation: ¶8.3. The Committee notes that, on 24 October 2004 in the afternoon (16.30 according to the resolution on criminal charges of 16 May 2005), the victim and his wife were requested to follow the police officers to the Bazarkorgon police station after a quarrel that was qualified as a public disturbance. The victim was kept in custody, while his wife was released. According to the information provided by the State party, the author’s son died on 24 October 2004 at 17.00 o’clock (17.20 according to the Suzak District Court judgment). The Committee notes from the testimony by the ambulance doctor dated 18 November 2004, that she concluded that the victim did not have any strangulation marks but red finger marks on his neck. The Committee also notes from the interrogation testimony by the forensic expert dated 25 April 2005, who examined the victim’s body on 25 October 2004, in the presence of doctors and two of the victim’s relatives, that scratches on the eyebrow, under the chin, on the neck and the right upper arm, as well as a bloody wound on the left side of the victim’s neck were observed. The forensic expert stated that the wounds could appear from something hard such as fingernails or a wrist and that the histological examination of body tissues led to the conclusion that the victim died of mechanical asphyxiation. The mechanical asphyxiation could have been caused by hanging from a soft fabric. When asked if manual strangulation could have been the cause of the victim’s death, the forensic expert mentioned that no scratches on the cervical fabrics or skin were found but that the fracture of the horn of the thyroid could result from pressure by hands.

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¶8.4. The Committee further notes the Suzak District Court decision of 21 September 2005, which relied on the testimony of Mr. Mantybaev holding that the victim had hanged himself on his sport trousers in the administrative detention cell. The decision however does not indicate if other evidence has been evaluated and does not reconcile the different statements by Mr. Mantybaev. It notes that the victim’s brother insisted that the assistant police officer be found and that the case be retried. Nevertheless, the court concluded that there has been reconciliation between the defendant and the victim’s family exempting Mr. Mantybaev from criminal liability. On appeal, the Zhalalabad Regional Court found, on 5 September 2006, that during the preliminary investigation, Mr. Mantybaev, Mr. Abdukaimov and the victim’s wife had given different versions of the victim’s death, and that these contradictions had not been resolved during the court proceedings. It also held that the victim’s family did not appear to agree with the reconciliation as they requested a retrial. It concluded that the case should be retried based on a complete and objective study of all circumstances. The Committee notes that the Supreme Court in its judgment of 27 December 2006, found that the fact of criminal negligence had been proven by testimonies of the victim’s representative, witnesses, medical expertise and other materials in the case file, without however explaining further how the court evaluated the material it considered. The Supreme Court also noted that by payment of 30,000 Kyrgyz som to the victim’s family, reconciliation was reached between the defendant and the victim’s family and that the arguments by the victim’s counsel about the discrepancies in the investigation were speculations. ¶8.5. The Committee notes the author’s claim that the victim died in police custody as a result of the excessive and unnecessary use of force by police officers, given that the victim was in good physical and mental health before being taken into custody, that according to his wife he did not possess any sports trousers which had allegedly been used to hang himself, that the sport trousers used as evidence were never forensically examined and that due to the victim’s high alcohol level, he neither had the physical capacity nor the time to hang himself. The Committee further notes the author’s statement according to which the acceptance of a small payment to assist with the funeral cost has not waived her rights to establish the truth of how her son died and to hold perpetrators accountable. . . . ¶8.7. . . . It is implicit in article 4, paragraph 2, of the Optional Protocol that the State party has the duty to investigate in good faith all allegations of violations of the Covenant made against it and its authorities, and to furnish to the Committee the information available to it. ¶8.8. The Committee observes that the State party and its judicial authorities have not explained on which basis the conclusion was drawn that the victim had committed suicide in police custody. This in particular considering the testimony by the forensic expert, who stated that fracture in the horn of the thyroid could have been caused by hanging from a soft fabric or by pressure by hands, as well as the testimony of the ambulance doctor who did not find any signs of strangulation but observed red finger marks on the victim’s neck. It also notes that Mr. Mantybaev gave three different versions of the victim’s death; however the State party’s first instance court and the Supreme Court appear not to have evaluated the discrepancies in these statements and relied solely on the last statement indicating that he found the victim in the administrative detention cell having hanged himself from his sport trousers. The Committee further observes that the State party’s judicial authorities did not consider any testimony from the first sergeant, Mr. Abdukaimov. The Committee concludes that, in the circumstances of the present case and in the absence of persuasive arguments by the State party rebutting the suggestion by the author that her son was killed in custody and in light of the information in the forensic expertise inconsistent with the State party’s

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arguments, the State party is responsible for arbitrary deprivation of the victim’s life, in breach of article 6, paragraph 1, of the Covenant.

Eshonov and Zhumbaeva are quite recent decisions (2010 and 2011 respectively) and probably manifest a more robust and confident approach to evidence by the HRC, sufficient to hold States directly responsible for deaths, than in earlier cases. [8.14]

PEIRIS v SRI LANKA (1862/09)

The HRC’s recent vigour regarding findings of direct violations of article 6 extended to this case, where the victim was shot dead by unknown perpetrators: ¶7.2. Regarding the author’s claim under article 6, the Committee recalls that the right to life is the supreme right, from which no derogation is permitted. It further recalls that States parties have a positive obligation to ensure the protection of individuals against violations of Covenant rights, which may be committed not only by its agents, but also by private persons or entities. The Committee observes that according to the uncontested material at its disposal, the author and her family received a number of direct threats from the police, i.e. agents of the State party, including death threats, seeking to unlawfully coerce them into withdrawing complaints filed by them against police officers. On 20 September 2008, it is reported that the author’s husband was shot dead by masked men, three months after two individuals had told the family that they had been instructed by the Negombo police to kill them. After this threat, the author and her husband had filed several complaints, including before the Office of the Deputy Inspector General and the police, but no action was undertaken by the authorities to protect the family. In these circumstances, and taking into account the State party’s lack of cooperation, the Committee is of the view that the facts before it reveal that the death of the author’s husband must be held attributable to the State party itself. The Committee accordingly concludes that the State party is responsible for the arbitrary deprivation of life of the author’s husband, in breach of article 6 of the Covenant. ATTEMPTED ASSASSINATION

[8.15]

CHONGWE v ZAMBIA (821/98)

The author claimed that he and others were the subject of an assassination attempt by the agents of the State Party. The HRC found that an unsuccessful assassination attempt, causing no death, can nevertheless amount to a breach of article 6(1):17 ¶5.2. The Committee observes that article 6, paragraph 1, entails an obligation of a State party to protect the right to life of all persons within its territory and subject to its jurisdiction. In the present case, the author has claimed, and the State party has failed to contest before the Committee that the State party authorized the use of lethal force without lawful reasons, which could have led to the killing of the author. In the circumstances, the Committee finds that the State party has not acted in accordance with its obligation to protect the author’s right to life under article 6, paragraph 1, of the Covenant. . . .

17

See also Jimenez Vaca v Colombia (859/99).

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DUTY TO INVESTIGATE STATE KILLINGS

[8.16] The HRC has confirmed that States must investigate all killings, especially when they are perpetrated or suspected to be perpetrated by State agents. A failure to investigate, or an inadequate investigation, will generate a breach of the right to a remedy in article 2(3)18 in conjunction with article 6. [8.17]

BABOERAM ET AL v SURINAME (146, 148–154/83)

Here, the Committee found a violation of article 6(1) entailed in the arrest and killing of 15 persons by Surinamese military police. The HRC recommended the appropriate remedy: ¶16. The Committee therefore urges the State party to take effective steps (i) to investigate the killings of December 1982; (ii) to bring to justice any persons found to be responsible for the death of the victims; (iii) to pay compensation to the surviving families; and (iv) to ensure that the right to life is duly protected in Suriname.

Since this early case, the HRC has confirmed that States Parties have positive duties to investigate all State killings, and to provide redress with regard to those that breach article 6. In Chongwe v Zambia (821/98) [8.15], the duty to investigate under article 6(1) was clearly extended to attempted assassinations. [8.18]

HERRERA RUBIO v COLOMBIA (161/83)

The facts are outlined immediately below. ¶10.2. Joaquín Herrera Rubio was arrested on 17 March 1981 by members of the Colombian armed forces on suspicion of being a ‘guerrillero’. He claims that he was tortured (‘submarine’, ‘hanging’ and beatings) by Colombian military authorities who also threatened him that unless he signed a confession his parents would be killed. On 27 March 1981, several individuals wearing military uniforms, identifying themselves as members of the counter-guerrilla, came to the home of the author’s parents and led them away by force. One week later the bodies of José Herrera and Emma Rubio de Herrera were found in the vicinity. At that time the District of Caquetá is reported to have been the scene of a military counter-insurgency operation, during which most villages in the area were subjected to stringent controls by the armed forces. The State party has shown that a judicial investigation of the killings was carried out from 24 September 1982 to 25 January 1983, and claims that it was established that no member of the armed forces had taken part in the killings.

Colombia submitted the following information regarding its investigation into the killings. ¶6.1. In its submission . . . , the State party indicates that the killings of José Herrera and Emma Rubio de Herrera were duly investigated and that no evidence was found to support charges against military personnel. The investigation was therefore closed by order of the Attorney-General delegate for the Armed Forces, dated 15 August 1984. . . .

18

See Ch 25.

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¶6.2. The State party also forwarded the text of a decision of the Penal Chamber of the Superior Court of Florencia, dated 18 February 1983, finding, after a judicial investigation lasting from 24 September 1982 to 25 January 1983, that the killings had been perpetrated by armed persons, without, however, being able to determine to which group they belonged.

The State Party later confirmed that no new investigations in the case were pending owing to a lack of sufficient evidence. The HRC found a violation of article 6 despite the apparent efforts to investigate the matter by Colombian officials. ¶10.3. Whereas the Committee considers that there is reason to believe, in the light of the author’s allegations, that Colombian military persons bear responsibility for the deaths of José Herrera and Emma Rubio de Herrera, no conclusive evidence has been produced to establish the identity of the murderers. In this connection the Committee refers to its general comment No. 6 (16) concerning article 6 of the Covenant, which provides, inter alia, that States parties should take specific and effective measures to prevent the disappearance of individuals and establish effective facilities and procedures to investigate thoroughly, by an appropriate impartial body, cases of missing and disappeared persons in circumstances which may involve a violation of the right to life. The Committee has duly noted the State party’s submissions concerning the investigations carried out in this case, which, however, appear to have been inadequate in the light of the State party’s obligations under article 2 of the Covenant.

[8.19]

ZHUMBAEVA v KYRGYZSTAN (1756/08)

The HRC found that the State, despite denials, was responsible for the death in custody of the author’s son [8.13]. The lack of a proper investigation constituted a separate violation:19 ¶8.10. As to the claims under article 6, paragraphs 1 and 7 on the ground that the State party failed in its procedural obligation to properly investigate the victim’s death and allegations of torture, and to take appropriate investigative and remedial measures, the Committee recalls its constant jurisprudence that criminal investigation and consequential prosecution are necessary remedies for violations of human rights such as those protected by article 6, paragraphs 1 and 7, of the Covenant. The Committee observes that the investigation order of 9 November 2004 considers as established that the victim had hanged himself and therefore does not take into account the author’s position that the victim was killed arbitrarily. The head inspector of the Bazarkorgon police station, Mr. Mantybaev, was sentenced for criminal negligence, but was exempted from criminal liability due to presumed reconciliation between the defendant and the victim’s family. The Committee notes the author’s allegations regarding the authorities failure to obtain a detailed description of the position of the victim’s body, that a mock hanging was not conducted, that the exact timing and sequence of events was not established, that medical records to establish if the victim had any suicidal tendencies were not requested, that a forensic expertise of the sport trousers was not ordered, that the cash the victim allegedly carried in his pocket was never located and that it was never established if the victim’s death was a result of torture or ill-treatment. The Committee further notes that the police sergeant [on duty at the time of death], Mr. Abdukaimov was never charged or prosecuted. In the absence of any explanation by the State party on discrepancies in the criminal investigation and the reason why one of the 19

See also Umateliev v Uzbekistan (1275/04).

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alleged perpetrators was never charged or prosecuted and in view of the detailed material placed before it, the Committee concludes that the State party failed to properly investigate the circumstances of the author’s son’s death and the allegations of torture and ill-treatment and thus effectively denied the author a remedy, in violation of her rights under article 2, paragraph 3 read in conjunction with article 6, paragraphs 1 and 7.

[8.20]

MARCELLANA and GUMANOY v PHILIPPINES (1560/07)

The two victims in this case had been investigating the disappearances of people at the possible hands of the military. They were arrested by armed individuals, and their bodies were found the next day, killed by gunshot wounds. The HRC found breaches of the ICCPR: ¶7.2. As to the claim under article 6, paragraph 1, the Committee observes that it is an established fact, as recognized in the decision of the DOJ of 17 December 2004, that Ms. Marcellana and Mr. Gumanoy were kidnapped, robbed and killed by an armed group. In this regard, the Committee recalls its jurisprudence that criminal investigation and consequential prosecution are necessary remedies for violations of human rights such as those protected by article 6. The Committee further recalls its General Comment No. 31 [80], which lays down that where investigations reveal violations of certain Covenant rights, States parties must ensure that those responsible are brought to justice. ¶7.3. In the present case, though over five years have elapsed since the killings took place, the State party’s authorities have not indicted, prosecuted or brought to justice anyone in connection with these events. The Committee notes that the State party’s prosecutorial authorities have, after a preliminary investigation, decided not to initiate criminal proceedings against one of the suspects due to lack of sufficient evidence. The Committee has not been provided with any information, other than about initiatives at the policy level, as to whether any investigations were carried out to ascertain the responsibility of the other members of the armed group identified by the witnesses. ¶7.4. In view of the above, and in the absence of other pertinent explanations on this matter by the State party, the Committee concludes that the absence of investigations to establish responsibility for the kidnapping and murder of the victims amounted to a denial of justice. The State party must accordingly be held to be in breach of its obligation, under article 6, in conjunction with article 2, paragraph 3, properly to investigate the death of the victims and take appropriate action against those found guilty.

The State Party was not found to be in direct violation of article 6, as it was not certain whether it was involved in the murders. It was, however, in violation of article 2(3), the right to a remedy, in conjunction with article 6 due to its failure to carry out a proper investigation of the murders. [8.21] Similarly, in Amirov v Russian Federation (1447/06), the HRC could not make a finding of a direct violation of article 6 as there was not enough evidence that State agents had perpetrated the relevant murder. However, the failure to properly investigate the death breached article 6 in conjunction with article 2(3).20

20

See paras 11.3–11.5.

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A similar finding was made in Pestaño v Philippines (1619/07) and Telitsin v Russian Federation (888/99). DUTY TO PUNISH OFFENDERS FOR STATE KILLINGS

[8.22] In Suárez de Guerrero v Colombia (45/79), the Colombian security forces were acquitted of using excessive force under an impunity statute [8.03]. The statute itself was found to constitute a breach of article 6(1).21 It manifested the State Party’s failure adequately to protect life by punishing the perpetrators of arbitrary killings.22 [8.23]

BAUTISTA de ARELLANA v COLOMBIA (563/93)23

NE Bautista de Arellana was abducted from her home on 30 August 1987. Her body was discovered on 12 September 1987, though it was not officially identified until 11 September 1990. In subsequent administrative proceedings, named State agents were found responsible for Ms Bautista’s disappearance and death. In finding a violation of article 6, the HRC stated the following: ¶8.2. In its submission of 14 July 1995, the State party indicates that Resolution 13 of 5 July 1995 pronounced disciplinary sanctions against Messrs. Velandia Hurtado and Ortega Araque, and that the judgment of the Administrative Tribunal of Cundinamarca of 22 June 1995 granted the claim for compensation filed by the family of Nydia Bautista. The State party equally reiterates its desire to guarantee fully the exercise of human rights and fundamental freedoms. These observations would appear to indicate that, in the State party’s opinion, the above-mentioned decisions constitute an effective remedy for the family of Nydia Bautista. The Committee does not share this view, because purely disciplinary and administrative remedies cannot be deemed to constitute adequate and effective remedies within the meaning of article 2, paragraph 3, of the Covenant, in the event of particularly serious violations of human rights, notably in the event of an alleged violation of the right to life. . . . ¶10. . . . the Committee urges the State party to expedite the criminal proceedings leading to the prompt prosecution and conviction of the persons responsible for the abduction, torture and death of Nydia Bautista.

[8.24]

SANJEEVAN v SRI LANKA (1436/05)

The authors’ son was arrested without any apparent reason. He showed signs of poor physical health, and alleged he had been tortured, when his parents visited him in police custody. Four days after his arrest, the parents found their son’s body in the morgue, after being told the previous night by police to go to the hospital. An inquest concluded that he had died from gunshot wounds. The police claimed that the son had been injured in crossfire when a convoy, which was transferring him to another police station, was attacked by the Tamil Tigers organization, the 21

At para 13.3. See also, generally, on the issue of remedies and impunity [9.176]ff and Ch 25. 23 See also, in a similar vein, Vicente et al v Colombia (612/95), paras 8.2–8.3. 22

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LTTE. However, Sri Lankan authorities concluded that the police account was fabricated. Criminal proceedings were not pursued against the relevant police officers. Rather, disciplinary action was taken. The HRC agreed that there were breaches of article 6: ¶6.2. As to the claim under article 6 that the death of the victim is directly attributable to the State party, the Committee recalls that according to the uncontested material the victim was in normal health before being taken into police custody, where he was shortly thereafter seen by eyewitnesses suffering substantial and severe injuries. The alleged reasons for his subsequent death, namely that he died during an LTTE attack, have been dismissed by the State party’s own judicial and executive authorities. In these circumstances, the Committee must give due weight to the presumption that injury and, a fortiori, death—suffered in custody must be held to be attributable to the State party itself. The Committee accordingly concludes that the State party is responsible for arbitrary deprivation of the victim’s life, in breach of article 6 of the Covenant. . . . ¶6.4. . . . In the instant case, the State party’s own authorities dismissed the explanation for the victim’s death advanced by the police in whose custody the victim died, and its judicial authorities directed criminal proceedings against the offending police officers. In the absence of any explanation by the State party and in view of the detailed evidence placed before it, the Committee must conclude that the Attorney-General’s decision not to initiate criminal proceedings in favour of disciplinary proceedings was clearly arbitrary and amounted to a denial of justice. The State party must accordingly be held to be in breach of its obligations under articles 6 and 7 to properly investigate the death and torture of the victim and take appropriate action against those found guilty. For the same reasons, the State party is in breach of its obligation under article 2, paragraph 3, to provide an effective remedy to the authors.24

[8.25] The emphasis placed by the HRC on criminal law ‘remedies’ for State killings in the above cases is possibly at odds with its decision in the following case. CROES v THE NETHERLANDS (164/84) The author was the leader of a political party, the People’s Electoral Movement (known as the ‘MEP’), promoting independence for the island of Aruba. At an MEP parade in 1983, the author was allegedly shot by a police officer. He did not die, but submitted a complaint that the State had threatened his right to life. The HRC eventually found the complaint inadmissible for failure to exhaust domestic remedies. ¶10. . . . It would have been open to Mr. Croes to institute civil proceedings against the State party and to claim compensation for the damages suffered as a result of the alleged failure of the State party to fulfil its obligations under the International Covenant on Civil and Political Rights. It is true that he claimed that this type of recourse would not address his concerns. In this context, the Committee observes that although States parties are obliged to investigate in good faith allegations of human rights violations, criminal proceedings would not be the only available remedy. Accordingly, the Committee cannot accept the

24

See generally on the right to a remedy, Ch 25.

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25

argument of the author and his heirs that proceedings before the Aruban courts, other than those leading to the criminal prosecution of the policeman, do not constitute effective remedies within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. The Committee adds that the authors’ complaint could be directed, in all of its aspects, against the Aruban authorities in general and that he and his heirs have failed to pursue all avenues of judicial recourse open to them.

[8.26] It has been confirmed in numerous cases that the ICCPR contains no independent right to see another prosecuted.26 However, it seems that the duty to investigate alleged violations of the ICCPR in good faith may occasionally entail a duty to prosecute a certain person, as occurred in Bautista de Arellana and Sanjeevan. On the other hand, a State’s performance of an adequate investigation provides evidence that a State’s decision not to prosecute was justified, as occurred in Croes, where the Dutch investigation of Croes’s shooting uncovered no evidence of police misbehaviour.27

Disappearances [8.27]

GENERAL COMMENT 6

¶4. States parties should also take specific and effective measures to prevent the disappearance of individuals, something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life. Furthermore, States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life.

The HRC has extrapolated further on this duty in a large number of recent cases against Libya and Algeria. [8.28]

SAKER v ALGERIA (992/01)

The author’s husband disappeared in 1994, apparently having last been seen in the custody of police. The HRC found a violation of article 6: ¶9.11. . . . In the present case, the Committee notes that the State party does not deny that the author’s husband has been unaccounted for since at least 29 July 1995, when the judgement in absentia was handed down by the criminal division of the Court of Constantine. As the State party has not provided any information or evidence relating to the victim’s release from the Territorial Centre, the Committee is of the opinion that the facts before it reveal a violation of article 6, paragraph 1, in that the State party failed to protect the life of Mr. Saker.

25 Mr Croes died in an accidental car crash whilst the communication was being considered, so his heirs continued the complaint. 26 See eg HCMA v Netherlands (213/86), SE v Argentina (275/88). 27 At para 8.2. See also IM v Italy (266/87), where the communication regarding IM’s death was inadmissible as civil domestic remedies had not yet been exhausted against doctors allegedly responsible for that death.

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Saker followed the trend in earlier disappearance cases, such as Sanjuán Arévalo v Colombia (181/84), Mojica v Dominican Republic (449/91), and Laureano v Peru (540/93), in which States were found directly responsible for violations of article 6 in the case of disappearances, even when the death of the disappeared person was not confirmed.28 The HRC has at times been more circumspect in this respect in other cases. [8.29]

AOUABDIA v ALGERIA (1780/08)

The victim had disappeared 17 years prior to the submission of the communication. The HRC found a violation of article 6 in the following terms: ¶7.10. The author also invokes article 2, paragraph 3, of the Covenant, which requires States parties to ensure that individuals have accessible, effective and enforceable remedies for asserting the rights enshrined in the Covenant. The Committee reiterates the importance that it attaches to States parties’ establishment of appropriate judicial and administrative mechanisms for addressing alleged violations of rights under domestic law. It refers to its general comment No. 31, which states that failure by a State party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. In the present case, the information before the Committee indicates that Brahim Aouabdia did not have access to an effective remedy, in that the State party failed in its obligation to protect his life, and the Committee therefore concludes that the facts before it reveal a violation of article 6 of the Covenant, read in conjunction with article 2, paragraph 3. ¶7.11. Having adopted a decision on the violation of article 6 of the Covenant, read in conjunction with article 2, paragraph 3, the Committee does not consider it necessary to examine separately the complaints relating solely to article 6. Therefore, rather than find a direct violation of article 6, the HRC found an indirect violation in conjunction with the right to a remedy in article 2(3).29

[8.30]

SHARMA v NEPAL (1469/06)

The HRC took a different approach to the right to life in this disappearance case.30 ¶7.8. As to the possible violation of article 6 of the Covenant, the Committee notes that both the author and the State party seem to agree that the author’s husband is dead. Nonetheless, while invoking article 6, the author also asks for the release of her husband, indicating that she has not abandoned hope for his reappearance. The Committee considers that, in such circumstances, it is not for it to appear to speculate on the circumstances of the death of the author’s husband, particularly in the light of the fact that there has been no official inquiry into the event. Insofar as the State party’s obligations under paragraph 9 below would be the same with or without such a finding, the Committee considers it inappropriate in the present case to make a finding in respect of article 6.

See, however, Bleier v Uruguay (30/78), para 14. See also Aboussedra v Libyan Arab Jamahiriya (1751/08), para 7.10; El Abani v Libyan Arab Jamahiriya (1640/07), para 7.10; Benaziza v Algeria (1588/07), para 9.9. 30 See also El Hassy v Libyan Arab Jamahiriya (1422/05), para 6.10. 28 29

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BENAZIZA v ALGERIA (1588/07)

Mr Salvioli, in a separate opinion, took issue with what he saw as the HRC’s timidity in relation to Article 6 and disappearences: ¶18. In this case, the author claims that her grandmother was arrested by State security officers, some of whom were in uniform, on 2 June 1996; that she has not received any news of her grandmother’s fate; and that none of the 17 petitions presented to the authorities has produced results. Given that the State party has not provided satisfactory explanations regarding the allegations made by the author, who asserts that she has still not received any news of her grandmother, the Committee should have found that the facts before it disclosed a violation of paragraph 1 of article 6, inasmuch as the State party failed to meet its obligation to guarantee the right to life of Ms. Daouia Benaziza. . . . ¶23. In the course of its decisions, in several cases of enforced disappearance the Committee has found that the victims’ rights under article 6 of the Covenant had been violated, even though it was not entirely clear what had happened to them. Regrettably, however, in other cases, including the case of Ms. Benaziza, the Committee has not followed this line of reasoning. The development of human rights law is progressive by nature, and this logically obliges the international bodies responsible for applying that law not to make legal interpretations that are regressive in relation to established standards of protection. It is to be hoped that the Committee will return to the use of more guarantee-oriented criteria in applying interpretations of the Covenant that are in accordance with its object and purpose, both in matters of procedure and in matters of substance. This would help ensure that States parties, in good faith, adopt the measures required to make adequate reparation for violations committed, in fulfilment of the commitments they have assumed as part of the international community.

[8.32] The HRC has been prepared to find direct violations of article 6 when evidence beyond the fact of long-term disappearance indicates that the disappeared person is dead. Such violations were found in El Alwani v Libyan Arab Jamahiriya (1295/04) (where the State had confirmed the death),31 González v Argentina (1458/06) (where an unidentifiable corpse was likely to be that of the disappeared person),32 and Traoré v Côte d’Ivoire (1759/08) (where the author, who had been arrested with his two cousins who later disappeared, had reason to believe they had been executed).33 [8.33]

CHIHOUB v ALGERIA (1811/08)

The authors’ sons had been taken away by army personnel 15 years earlier, and the authors had no idea of their fate. The HRC found a direct violation of article 6, indicating that it may be returning to its early practice of finding such violations, rather than finding only indirect violations: ¶8.4. The Committee notes that Djamel Chihoub was arrested on 16 May 1996 by members of the army of the State party. As for Mourad Chihoub, he was allegedly arrested on 13 November 1996 at the age of 16 by military officers from the Baraki barracks under orders from the same commander who had led the arrest of Djamel Chihoub a few months earlier. Allegedly, no one from his family has seen him or heard from him since. According 31 33

At para 6.8. At para 7.7.

32

At paras 9.3–9.4.

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to the authors, the chances of finding Djamel and Mourad Chihoub alive 15 years after their disappearance are negligible, and their prolonged absence, as well as the context and circumstances of their arrest, suggest that they died in detention. The Committee notes that the State party has not provided any information to refute these allegations, and concludes that the State party has failed in its duty to guarantee the right to life of Djamel and Mourad Chihoub, in violation of article 6 of the Covenant.

This change in approach in Chihoub was noted by a minority of Messrs Thelin and O’Flaherty, who disapproved.34 [8.34] In Concluding Observations on Serbia and Montenegro, the HRC has stated:35 ¶10. While noting the effective work regarding exhumations and autopsies of some 700 bodies from mass graves in Batajnica, the Committee is concerned at the lack of progress in investigations and prosecutions of the perpetrators of those crimes (arts. 2, 6). The State party should, along with the exhumation process, immediately commence investigations into apparent criminal acts entailing violations of the Covenant. The particular needs of the relatives of the missing and disappeared persons must equally be addressed by the State party, including the provision of adequate reparation.

Duty to Train Relevant Personnel [8.35] With regard to other ICCPR rights, the HRC has stressed that there exists a duty upon the State Party to train relevant personnel, such as police officers and prison guards, to minimize the chance of violation.36 Such a duty can be assumed to exist with regard to article 6. For example, with regard to Romania, the HRC recommended the close regulation of the use of firearms by police.37 Close regulation would presumably include the provision of appropriate firearms instruction. In Concluding Observations on the United Republic of Tanzania, the HRC regretted ‘the absence of training for the police in human rights and in the proper use of riot equipment, such as rubber bullets’.38

Duty to Protect Detainees [8.36]

DERMIT BARBATO v URUGUAY (84/81)

The HRC received a complaint regarding the death of one Hugo Haraldo Dermit Barbato, a prisoner held by Uruguayan authorities.

34 See also majority and minority in Djebrouni v Algeria (1781/08) and the various opinions in Ouaghlissi v Algeria (1905/09). 35 36 (2004) UN doc CCPR/CO/81/SEMO. See eg with regard to art 7, [9.150]. 37 (1999) UN doc CCPR/C/79/Add.111, para 12. 38 (1998) UN doc CCPR/C/79/Add.97, para 18; see also Concluding Observations on Israel (1998) UN doc CCPR/C/79/Add.93, para 17. In respect of the negligent use of firearms, see also Burrell v Jamaica (546/93) [8.08].

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¶9.2. The State party has not submitted any report on the circumstances in which Hugo Dermit died or any information as to what inquiries have been made or the outcome of such inquiries. Consequently the Committee cannot help but give appropriate weight to the information submitted by the author, indicating that a few days before Hugo’s death he had been seen by other prisoners and was reported to have been in good spirits, in spite of the interruption of the preparations for his release and departure from Uruguay. While the Committee cannot arrive at a definite conclusion as to whether Hugo Dermit committed suicide, was driven to suicide or was killed by others while in custody, the inescapable conclusion is that in all the circumstances, the Uruguayan authorities either by act or by omission were responsible for not taking adequate measures to protect his life, as required by article 6(1) of the Covenant. ¶10. The Human Rights Committee, acting under article 5(4) of the Optional Protocol to the International Covenant on Civil and Political Rights is of the view that the communication discloses violations of the Covenant, in particular: (a) with respect to Hugo Haroldo Dermit Barbato: Of article 6, because the Uruguayan authorities failed to take appropriate measures to protect his life while he was in custody . . . ¶11. The Committee, accordingly, is of the view that the State party is under an obligation to take effective steps (a) to establish the facts of Hugo Dermit’s death, to bring to justice any persons found to be responsible for his death and to pay appropriate compensation to his family. . . .

[8.37] There were strong indications that State authorities had killed Mr Dermit Barbato. Nevertheless, the HRC was unwilling to make such a finding. It found a breach of article 6(1) entailed in the State’s failure to take adequate measures to prevent the victim’s death while he was in its custody.39 In a similar vein, the United Kingdom was criticized in 1995 for the ‘high number of suicides among prisoners, especially among juveniles’.40 States therefore have a positive duty to take such measures as are reasonably possible to ensure that people do not die in State custody. This complements a State’s negative duty not to kill. The following case provided a good explanation of this positive duty. LANTSOV v RUSSIAN FEDERATION (763/97) This case concerned, inter alia, the death of the author’s son while he was in pre-trial detention in Moscow. The Committee found a violation of article 6(1): ¶9.2. Concerning the death of Mr. Lantsov, the Committee notes the author’s allegations, on the strength of testimony by several fellow detainees, that after the deterioration of the health of the author’s son, he received medical care only during the last few minutes of his life, that the prison authorities had refused such care during the preceding days and that this situation caused his death. It also takes note of the information provided by the State party, namely that several inquiries were carried out into the causes of the death, i.e. acute pneumonia leading to cardiac insufficiency, and that Mr. Lantsov had not requested medical assistance. The Committee affirms that it is incumbent on States to ensure the right of life of detainees, and not incumbent on the latter to request protection. The stated intention 39 Compare this to the more robust findings in Eshonov v Uzbekistan (1225/03) [8.12] and Zhumbaeva v Kyrgysztan (1756/08) [8.13]. 40 (1996) UN doc CCPR/C/79/Add.55, para 13.

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of the State party to improve conditions has no impact in the assessment of this case. The Committee notes that the State party has not refuted the causal link between the conditions of the detention of Mr. Lantsov and the fatal deterioration of his state of health. Further, even if the Committee starts from the assertion of the State party that neither Mr. Lantsov himself nor his co-detainees had requested medical help in time, the essential fact remains that the State party by arresting and detaining individuals takes the responsibility to care for their life. It is up to the State party by organizing its detention facilities to know about the state of health of the detainees as far as may be reasonably expected. Lack of financial means cannot reduce this responsibility. The Committee considers that a properly functioning medical service within the detention centre could and should have known about the dangerous change in the state of health of Mr. Lantsov. It considers that the State party failed to take appropriate measures to protect Mr. Lantsov’s life during the period he spent in the detention centre. Consequently, the Human Rights Committee concludes that, in this case, there has been a violation of paragraph 1 of article 6 of the Covenant.

[8.38]

TITIANHONJO v CAMEROON (1186/03)

The author’s husband, a political opponent of the government, was arrested in Cameroon. The author claimed that he was mistreated in custody. He eventually died of an illness in prison. The HRC found that the husband’s right to life under article 6 had been violated: ¶6.2. The author contends that her husband’s death in custody amounts to a violation of article 6 which requires a State party to protect the right to life of all persons within its territory and subject to its jurisdiction. In the present case, the author claims that the State party failed to protect the right to life of her husband by a) failing to allow a nurse access to his cell when he was clearly severely ill, and b) condoning life threatening conditions of detention at Bafoussam prison, especially the apparently unchecked propagation of life-threatening diseases. The State party has not refuted these allegations. In these circumstances, the Committee finds that the State party did not fulfill its obligation under article 6, paragraph 1, of the Covenant, to protect Mr. Titiahonjo’s right to life.

[8.39]

TORNEL v SPAIN (1473/06)

This communication arose from the death of an individual from AIDS in a Spanish prison. The HRC found no breach of article 6(1): ¶7.2. The authors claim that the rights of their deceased relative were violated under article 6, paragraph 1, of the Covenant because of the refusal to grant him conditional release when he had only a few months to live, and because he did not receive the medical care that his condition required. The Committee notes that Mr. Morales Tornel had been diagnosed as incurably ill when the application was filed and that, given the characteristics of his disease, there are no grounds for establishing a causal relationship between his death and his continuing incarceration. With regard to the claim that he did not receive the medical care in prison that his condition required, the Committee notes the lack of sufficient information in the file to enable it to find that the medical treatment was inadequate and that the evaluation of facts and evidence by the domestic courts in that regard suffered from arbitrariness. The Committee therefore does not have sufficient evidence to affirm that Mr. Morales Tornel’s rights were violated with respect to article 6 of the Covenant.

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[8.40] In Cabal and Pasini Bertran v Australia (1020/02), the HRC noted that ‘a failure to separate detainees with communicable diseases from other detainees, could raise issues primarily under articles 6, paragraph 1, and 10, paragraph 1’.41 Indeed, the Committee went further in Fabrikant v Canada (970/01), stating that a State is ‘responsible for the life and well-being of its detainees’,42 extending, the positive duty beyond the taking of reasonable steps to preserve a detainee’s life to the taking of such steps to maintain an adequate standard of health for a detainee [9.230]. In Concluding Observations on Austria, the HRC stressed that the State had to provide adequate medical supervision to detainees on hunger strike, including those awaiting deportation.43

Duty to Control Private Entities [8.41] The positive right to life includes a duty to prevent and punish killings and disappearances by private actors [8.02].44 In a number of cases above, such as Marcella and Gumanoy v Philippines (1560/07), the State Party has been found in breach of article 6 even though it was not certain that the relevant death was perpetrated by it. Nevertheless, in those cases, State involvement was strongly suspected. In any case, the State’s duties under article 6 clearly extend to killings which are undoubtedly perpetrated by non-State actors. [8.42] This duty is clearly provided for in article 6(1), which obliges the State to protect the lives of people ‘by law’.45 Mr Wennergren discussed this aspect of article 6 in his dissent in Kindler v Canada (470/91): The standard way to ensure the protection of the right to life is to criminalise the killing of human beings. The act of taking human life is normally subsumed under terms such as ‘manslaughter’, ‘homicide’ or ‘murder’. Moreover, there may be omissions which can be subsumed under crimes involving the intentional taking of life, inaction or omission that causes the loss of a person’s life, such as a doctor’s failure to save the life of a patient by intentionally failing to activate life-support equipment, or failure to come to the rescue of a person in a life-threatening situation of distress. Criminal responsibility for the deprivation of life lies with private persons and representatives of the State alike. The methodology of criminal legislation provides some guidance when assessing the limits for a State party’s obligations under article 2, paragraph 1, of the Covenant, to protect the right to life within its jurisdiction.

[8.43] The HRC has addressed this duty in a number of Concluding Observations. Paraguay has been criticized in this respect for having lenient laws regarding 41

At para 7.7. At para 9.3. The communication concerned an allegation that the Canadian authorities had failed to provide for appropriate surgery for a prisoner with a heart condition. The HRC found the communication inadmissible, as the evidence indicated that Canada had indeed provided for the relevant operation to be performed upon the author. 43 (2007) UN doc CCPR/C/AUT/CO/4, para 12. 44 See also H Kabaalioglu, ‘The Obligations to “Respect” and “Ensure” the Right to Life’, in B Ramcharan (ed), The Right to Life in International Law (Martinus Nijhoff, 1985), 160 at 179. 45 See M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005), 122–3. 42

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infanticide. A number of African States have been censured for their tolerance of the practice of female genital mutilation, partly due to the threat posed by the practice to the lives of young victims.47 The United States was censured for ‘the easy availability of firearms’ which threatened ‘the protection and enjoyment of the right to life’.48 Regarding Guatemala, the HRC was concerned at the serious violations of the rights of street children, including their right to life, by ‘public and private police’,49 the latter referring to organized vigilante groups.50 Guatemala has also been criticized for ‘the persistence of lynchings’.51 Finally, in General Comment 28, the HRC stated that ‘[t]he commission of so called “honour crimes” which remain unpunished, constitutes a serious violation of the Covenant and in particular of articles 6, 14 and 26’.52 [8.44] States Parties are also required to prevent and punish deaths caused by negligence or recklessness in both the public and private sectors. For example, the Ukraine was commended for its establishment of laws penalizing the preparation and sale of radiation-contaminated products.53 [8.45]

NOVAKOVIC´ v SERBIA (1556/07)

The authors’ son died in a state-run hospital after going in for facial surgery arising from a tooth infection. The authors claimed that he died because of medical malpractice. The HRC agreed with the authors that there had been a violation of article 6: ¶7.2. . . . in the instant case, the Committee finds that there is insufficient evidence before it to attribute direct responsibility to the State for failure to meet its obligation under article 6 of the Covenant. ¶7.3. The Committee notes the State party’s submission that the domestic criminal legislation establishes criminal responsibility for medical malpractice and for grave offences against health. The Committee, however, observes that the State party has failed to provide an explanation as to the functioning of the Ministry of Health’s Inspectorate, or as to the efficiency of criminal prosecution in cases of medical malpractice and other offences against health. In the instant case, it notes that the first suspect was not interrogated and the criminal procedure was not initiated until 40 months after the death of the victim; an indictment against the possible perpetrators was not raised until 21 January 2008, nearly 46

(1995) UN doc CCPR/C/79/Add.48, para 16. Concluding Observations on Lesotho (1999) UN doc CCPR/C/79/Add.106, para 12; Senegal (1997) UN doc CCPR/C/79/Add.82, para 12; Sudan (1997) UN doc CCPR/C.79/Add.85, para 10. See also [9.62]. 48 (1995) UN doc CCPR/C/79/Add.50, para 17. See also Concluding Observations on Switzerland (2009) UN doc CCPR/C/CHE/CO/3, para 12, where the HRC was concerned over the high rates of suicide caused by the high incidence of service weapons stored at home, and Concluding Observations on Guatemala (2012) CCPR/C/GTM/CO/3, paras 12 and 14. 49 (1996) UN doc CCPR/C/79/Add.63, para 20. 50 See also Concluding Observations on Algeria (1998) UN doc CCPR/C/79/Add.95, para 8; Benin (2004) UN doc CCPR/CO/82/BEN, para 14; Albania (2004) CCPR/CO/82/ALB, para 12. 51 (2012) CCPR/C/GTM/CO/3, para 18. 52 At para 31; see also Concluding Comments on Sweden (with regard to some of its migrant communities) (2002) UN doc CCPR/CO/74/SWE, para 8. 53 (1996) UN doc CCPR/C/79/Add.52, para 6. 47

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five years after the death of the victim; and the first instance trial had not started as of June 2009. The Committee also notes that a medical report regarding the cause of the death of Mr. Novakovic´ was available on 1 April 2003; however a full forensic expertise was only conducted in August 2005. Both the initial examination and the subsequent additional expertise, issued by the Belgrade Institute of Forensic Medicine, contain strong indications that standard medical procedures had not been performed and raise questions as to the possible medical malpractice and/or offences against health. The State party has not provided any explanation in connection with these allegations, including the reasons for the delay in initiating and completing the criminal investigation and proceedings on Mr. Novakovic´’s death. The Committee considers that these facts constitute a breach of the State party’s obligation under the Covenant to properly investigate the death of the victim and take appropriate action against those responsible and, therefore, reveal a violation of article 2, paragraph 3 in conjunction with article 6 of the Covenant.

Even though the death occurred in a state-run hospital, it does not seem as if the decision would have been different if the hospital had been private. After all, the State was held not to be directly responsible for the death in this case.

Capital Punishment [8.46] Article 6(2) to (6) is concerned with an exception to the right to life, the judicial imposition of a sentence of death. GENERAL COMMENT 6 ¶6. While it follows from article 6 (2) to (6) that States parties are not obliged to abolish the death penalty totally they are obliged to limit its use and, in particular, to abolish it for other than the ‘most serious crimes’. Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the ‘most serious crimes’. The article also refers generally to abolition in terms which strongly suggest (paras 2 (2) and (6)) that abolition is desirable. The Committee concludes that all measures of abolition should be considered as progress in the enjoyment of the right to life within the meaning of article 40, and should as such be reported to the Committee. The Committee notes that a number of States have already abolished the death penalty or suspended its application. Nevertheless, States’ reports show that progress made towards abolishing or limiting the application of the death penalty is quite inadequate. ¶7. The Committee is of the opinion that the expression ‘most serious crimes’ must be read restrictively to mean that the death penalty should be a quite exceptional measure. It also follows from the express terms of article 6 that it can only be imposed in accordance with the law in force at the time of the commission of the crime and not contrary to the Covenant. The procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal. These rights are applicable in addition to the particular right to seek pardon or commutation of the sentence.

[8.47] Imposition of the death penalty is prohibited in States Parties which have ratified the Second Optional Protocol. By April 2013, only 76 States had done

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so, though the HRC vigorously encourages such ratification in its dialogues with States parties to the ICCPR. [8.48]

LUBUTO v ZAMBIA (390/90)

The HRC considered the meaning of ‘most serious crimes’ in article 6(2) in this case:54 ¶7.2. The Committee notes that the author was convicted and sentenced to death under a law that provides for the imposition of the death penalty for aggravated robbery in which firearms are used. The issue that must accordingly be decided is whether the sentence in the instant case is compatible with article 6, paragraph 2, of the Covenant, which allows for the imposition of the death penalty only ‘for the most serious crimes’. Considering that in this case use of firearms did not produce the death or wounding of any person and that the court could not under the law take these elements into account in imposing sentence, the Committee is of the view that the mandatory imposition of the death sentence under these circumstances violates article 6, paragraph 2, of the Covenant.

Mr Ando concurred, but added that some crimes could be serious enough to attract the death penalty even if they injured no-one, such as ‘bombing of busy quarters, destruction of reservoirs, poisoning of drinking water, gassing in subway stations and probably espionage in war-time’. This is because some crimes ‘create a grave danger which may result in death or irreparable harm to many and unspecified persons’, and should thus be severely punished regardless of their ultimate consequences. [8.49] In Kennedy v Trinidad and Tobago (845/98), Messrs Kretzmer and Yalden, in a joint concurring opinion, suggested that unintentional or ‘inadvertent’ killing was not serious enough to attract the death penalty under article 9(2). In Concluding Observations on Kenya,55 the HRC has stated: ¶13 [The HRC] notes with concern that . . . the death penalty applies to crimes not having fatal or similarly grave consequences, such as robbery with violence or attempted robbery with violence, which do not qualify as ‘most serious crimes’ within the meaning of article 6, paragraph 2, of the Covenant.

[8.50] The HRC has also confirmed that the following are not ‘most serious crimes’, and cannot therefore attract the death penalty without violating article 6: treason, piracy,56 robbery,57 traffic in toxic or dangerous wastes,58 abetting suicide, drug trafficking,59 drug-related offences,60 property offences,61 multiple evasion See also Chisanga v Zambia (1132/02), para 7.4. (2005) UN doc CCPR/CO/83/KEN. 56 Concluding Observations on the United Kingdom’s Overseas Territories (2001) UN doc CCPR/ CO/73/UKOT, para 37. 57 Concluding Observations on Republic of Korea (1992) UN doc A/47/40, 122–4, para 9. 58 Concluding Observations on Cameroon (1994) UN doc CCPR/C/79/Add.33, para 9. 59 Concluding Observations on Thailand (2005) UN doc CCPR/CO/84/THA, para 14; Sudan (2007) UN doc CCPR/C/SDN/CO/3, para 19. 60 Concluding Observations on Kuwait (2011) UN doc CCPR/C/KWT/CO/2, para 14(b). 61 Concluding Observations on Sri Lanka (1996) UN doc CCPR/C/79/Add.56, para 14. 54 55

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62

of military service, apostasy, committing a third homosexual act, embezzlement by officials, theft by force,63 ‘abduction not resulting in death’,64 stealing cattle,65 illicit sex,66 crimes of an economic nature, adultery, corruption, ‘vague offences related to internal and external security’,67 political and economic offences,68 and ‘crimes that do not result in the loss of life’.69 Messrs Klein and Kretzmer, in the minority in TT v Australia (706/96), implied that drug offences were not serious enough to attract the death penalty.70 In Concluding Observations on Iraq, the HRC strongly implied that ‘non-violent’ infringements are not serious enough to attract the death penalty.71 Finally, retribution cannot be legally accepted as a ground for imposition of the death penalty.72 In summary, it appears that only intentional killings or attempted killings, and perhaps the intentional infliction of grievous bodily harm, may attract the death penalty under article 6(2).73 [8.51] In Concluding Observations on Yemen, the HRC stated:74 ¶15. . . . The preponderant role of the victim’s family in deciding whether or not the [death] penalty is carried out on the basis of financial compensation (‘blood money’) is . . . contrary to the Covenant.

Thus, contrary to the practice in a number of Islamic States, the victim’s family, considering their inherent partiality, should not have a role in deciding whether or not a death penalty will be imposed and/or carried out. [8.52]

GUNAN v KYRGYZSTAN (1545/07)

The author had been sentenced to death after an unfair trial. Therefore, he claimed that the sentence itself also breached article 6. The HRC followed its previous case law in finding a violation: ¶6.5. The author finally claims a violation of his right to life under article 6 of the Covenant, as he was sentenced to death after an unfair trial. In this regard, the Committee reiterates its jurisprudence that the imposition of a sentence of death upon conclusion of a trial, in which the provisions of article 14 of the Covenant have not been respected, constitutes a violation 62

Concluding Observations on Iraq (1997) UN doc CCPR/79/Add.84, para 11. Concluding Observations on Sudan (1997) UN doc CCPR/C/79/Add.85, para 8; Sudan, (2007) UN doc CCPR/C/SDN/CO/3, para 19. 64 Concluding Observations on Guatemala (2001) UN doc CCPR/CO/72/GTM, para 17. 65 Concluding Observations on Madagascar (2007) UN doc CCPR/C/MDG/CO/3, para 15. 66 Sudan (2007) UN doc CCPR/C/SDN/CO/3, para 19. 67 Concluding Observations on Kuwait (2011) UN doc CCPR/C/KWT/CO/2, para 14(b). 68 Concluding Observations on Libyan Arab Jamahiriya (1998) UN doc CCPR/C/79/Add.101, para 8. 69 Concluding Observations on the Islamic Republic of Iran (1995) UN doc CCPR/C/79/Add.25, para 8. 70 The complaint related to the author’s extradition to Malaysia where, it was alleged, he faced the possibility of the death penalty for a drugs offence. The majority found that it was unlikely he would even be tried for the drugs offence upon his return. 71 (1997) UN doc CCPR/79/Add.84, para 10. 72 (1997) UN doc CCPR/79/Add.84, para 10. 73 See also Kennedy v Trinidad and Tobago (845/98) [8.49]. 74 (2005) UN doc CCPR/CO/84/YEM. 63

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of article 6 of the Covenant. In light of the Committee’s findings of a violation of article 14, it concludes that the author is also a victim of a violation of his rights under article 6, paragraph 2, read in conjunction with article 14, of the Covenant.

Later in paragraph 7, the HRC confirmed that it had found a breach of article 6, rather than article 6(2) in particular, in conjunction with article 14 (the right to a fair trial). The broader approach had been adopted in cases such as Kurbanov v Tajikistan (1096/02) and in General Comment 32 at paragraph 59. [8.53] An even broader approach was taken by two other members of the HRC in Gunan, Messrs Lallah and Salvioli, who argued that the imposition of a death penalty after an unfair trial amounted to a breach of article 6 standing alone (‘Article 6 proper’) rather than in conjunction with article 14. In contrast, Mr Rivas Posada argued that only a specific violation of article 6(2), in conjunction with article 14, should have been found, which accords with the HRC’s earlier Caribbean case law on the point, such as Levy v Jamaica (719/96).75 [8.54] The HRC has even found such violations when the death sentence has been commuted to life imprisonment.76 However, the HRC has not been consistent on that issue; in other cases it has found the complaint to be moot if the death penalty has been commuted.77 A further variation arose in Larrañaga v Philippines (1421/05), where a breach of article 7 rather than article 6 was found in respect of a death sentence handed down after an unfair trial, which was commuted [9.78]. [8.55] It must be noted that not all violations of article 14 in capital trials give rise to concurrent breaches of article 6(2). In particular, breaches of the guarantees of expeditious criminal trials and appeals (article 14(3)(c) and (5)) do not concurrently breach article 6(2).78 Whilst an unreasonable delay constitutes unfair treatment of the defendant, it does not mean that the actual trial is conducted in an unjust manner, so any resultant capital sentence is not so open to challenge. An exception in this regard seems to have applied without explanation in Champagnie v Jamaica (445/91), where a breach of article 6 did accompany findings of breaches of articles 14(3)(c) and 14(5), entailed in trial delays. Kamoyo v Zambia (1859/09) was also an exception in this regard: the delay in that case was truly extraordinary, a 17-year (and counting) delay in the hearing of an appeal.79

75 See also eg Pinto v Trinidad and Tobago (232/87), Reid v Jamaica (250/87), Kelly v Jamaica (253/87), Wright v Jamaica (349/89), Henry v Jamaica (230/87), Campbell v Jamaica (248/87), Burrell v Jamaica (546/93), and Price v Jamaica (572/94). 76 See eg Akhadov v Kyrgyzstan (1503/06), Khoroshenko v Russian Federation (1304/04), Phillip v Trinidad and Tobago (594/1992), Karimov v Tajikistan (1108 and 1121/02), and Siragev v Uzbekistan (907/00). 77 See eg Dunaev v Tajikistan (1195/03), Kodirov v Uzbekistan (1284/04), Kasimov v Uzbekistan (1378/05), Isaev and Karimov v Uzbekistan (1163/03), and El Hagog v Libya (1755/08). 78 See eg Brown and Parish v Jamaica (665/95), para 9.2; Thomas v Jamaica (614/95). 79 At para 6.4.

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MANDATORY DEATH PENALTIES

[8.56]

BROWN v JAMAICA (775/97)

The author complained, inter alia, of the mandatory imposition of a death sentence upon him for ‘murder in aggravated circumstances’. The HRC found no violation entailed in the mandatory nature of the author’s death penalty: ¶6.14. With regard to counsel’s argument that the mandatory death sentence for capital murder is an arbitrary and disproportionate punishment, and in violation of the Covenant, the Committee notes that Jamaican law distinguishes between non-capital and capital murder, and that capital murder is murder committed under aggravated circumstances. The Committee is therefore of the opinion that counsel’s argument is without foundation, and that the facts before it do not reveal any violation of the Covenant in this respect. Moreover, the Committee considers that counsel has failed to advance any arguments which mitigating circumstances might have been taken into account by the judge when sentencing the author, and how the author would therefore have been affected by the alleged violation.

[8.57]

THOMPSON v ST VINCENT and THE GRENADINES (806/98)

The author was convicted of murder, defined in the relevant State as an intentional act of violence resulting in the death of another, and given the death sentence, the mandatory penalty for murder in St Vincent. The author submitted, inter alia, that ‘the mandatory nature of the death sentence violates the author’s rights under article 6(1)’.80 The HRC ultimately found in favour of the author regarding article 6(1): ¶8.2. Counsel has claimed that the mandatory nature of the death sentence and its application in the author’s case, constitutes a violation of articles 6(1) . . . of the Covenant. The State party has replied that the death sentence is only mandatory for murder, which is the most serious crime under the law, and that this in itself means that it is a proportionate sentence. The Committee notes that the mandatory imposition of the death penalty under the laws of the State party is based solely upon the category of crime for which the offender is found guilty, without regard to the defendant’s personal circumstances or the circumstances of the particular offence. The death penalty is mandatory in all cases of ‘murder’ (intentional acts of violence resulting in the death of a person). The Committee considers that such a system of mandatory capital punishment would deprive the author of the most fundamental of rights, the right to life, without considering whether this exceptional form of punishment is appropriate in the circumstances of his or her case. The existence of a right to seek pardon or commutation, as required by article 6, paragraph 4, of the Covenant, does not secure adequate protection to the right to life, as these discretionary measures by the executive are subject to a wide range of other considerations compared to appropriate judicial review of all aspects of a criminal case. The Committee finds that the carrying out of the death penalty in the author’s case would constitute an arbitrary deprivation of his life in violation of article 6, paragraph 1, of the Covenant.

The HRC has now confirmed on numerous occasions that a mandatory death penalty breaches article 6.81 80

At para 3.3. See also Kennedy v Trinidad and Tobago (845/98), para 7.3; Mwamba v Zambia (1520/06), para 6.3; Chisanga v Zambia (1132/02), para 7.4; Chan v Guyana (913/00), para 6.5; Hussain and Singh 81

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REINTRODUCTION OF THE DEATH PENALTY

[8.58] The decision in Judge v Canada (829/98) [8.69] indicates that a State cannot rely in any way on the death penalty exemption in article 6(2)–(6) if it has abolished the death penalty. That must mean that the reintroduction of the death penalty breaches article 6. A State Party cannot ‘reintroduce’ the death penalty unless it has previously abolished the death penalty. [8.59] The HRC has had the opportunity to explicitly rule on the compatibility of the reintroduction of the death penalty in Carpo v Philippines (1077/02), Rayos v Philippines (1167/03), and Rolando v Philippines (1110/02). On each occasion, the death penalty had been mandatorily imposed. As the HRC found a violation of article 6 on that ground [8.57], it did not decide on the issue of reintroduction. In a separate opinion in Rolando, Messrs Scheinin, Lallah, and Ms Chanet confirmed that Judge in fact did prohibit the reintroduction of the death penalty. They went on: In our view the distinction between abolition and a moratorium is decisive. In 1987 the Philippines removed capital punishment from it legal order, so that no provision of criminal law included a possibility to sentence any person to death. The death penalty could not be applied on the basis of the reference to it in the Constitution. On the contrary, the Constitution itself made it very clear that capital punishment had been removed from the legal order, i.e., abolished. . . . Hence, our conclusion is that, for purposes of article 6, paragraph 2, of the Covenant, the Philippines abolished capital punishment in 1987 and reintroduced it in 1993. Subsequent to that, the author of the current communication was sentenced to death. This constituted, in our view, a violation of article 6 of the Covenant. This violation is separate from and additional to the violation of article 6 established by the Committee on the basis of the mandatory nature of the death sentence.82

[8.60] In Concluding Observations on Lebanon, the HRC was:83 ¶20. . . . deeply concerned at the Government’s extension of the number of crimes carrying the death penalty which, bearing in mind that article 6 of the Covenant limits the circumstances under which capital punishment may be imposed, suggesting that they be submitted to continuing review with a view to the abolition of capital punishment, is not compatible with that article.

Therefore, any expansion of a State Party’s list of capital crimes, including presumably reintroduction of the death penalty, appears to breach article 6, even if such expansion applies only to the ‘most serious crimes’.

v Guyana (862/99), para 6.2; Persaud and Rampersaud v Guyana (812/98), para 7.2; Carpo et al v Philippines (1077/02), para 8.3; Rayos v Philippines (1167/03), para 7.2; and Rolando v Philippines (1110/02), para 5.2. 82 Mr Ando and Mrs Wedgwood disagreed with this view. They also, however, disagreed with the majority finding of violation regarding the mandatory death penalty. These two members have often been in the minority in decisions involving death penalty violations. 83 (1997) UN doc CCPR/C/79/Add.78, para 20; see also Concluding Observations on Peru (1996) UN doc CCPR/C/79/Add.67, para 15.

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RIGHT TO SEEK PARDON

[8.61]

KENNEDY v TRINIDAD and TOBAGO (845/98)

In Kennedy, the author complained of a breach of article 6(4). The HRC rejected the claim: ¶7.4. The Committee has noted counsel’s claim that since Mr. Kennedy was at no stage heard in relation to his request for a pardon nor informed about the status of deliberations on this request, his right under article 6, paragraph 4, of the Covenant, was violated. In other words, counsel contends that the exercise of the right to seek pardon or commutation of sentence should be governed by the procedural guarantees of article 14. . . . The Committee observes, however, that the wording of article 6, paragraph 4, does not prescribe a particular procedure for the modalities of the exercise of the prerogative of mercy. Accordingly, States parties retain discretion for spelling out the modalities of the exercise of the rights under article 6, paragraph 4. It is not apparent that the procedure in place in Trinidad and Tobago and the modalities spelled out in Sections 87 to 89 of the Constitution are such as to effectively negate the right enshrined in article 6, paragraph 4. In the circumstances, the Committee finds no violation of this provision.

[8.62]

CHIKUNOV v UZBEKISTAN (1034/02)

The reasons behind the finding of a violation of article 6(4) are evident from this quote from the HRC: ¶7.6. The author has also claimed that her son’s execution was carried out unlawfully, because under Uzbek law no death sentence can be executed prior to the examination of the condemned person’s request for a pardon. In this case, several pardon requests were filed with the presidential administration, and no reply was received. The State party has not commented on this allegation. In the circumstances, due weight must be given to the author’s allegations. Accordingly, the Committee considers that the material before it disclose a violation of article 6, paragraph 4, of the Covenant.

[8.63]

CHISANGA v ZAMBIA (1132/02)

In 1995, the author was convicted of aggravated robbery and sentenced to death. On appeal in 1997, the Supreme Court annulled his death sentence and he received a substitute sentence of 18 years in prison. He was removed from death row at that time. In 1999, however, the Supreme Court issued another judgment restoring the death penalty. In 2004, the President of Zambia issued an amnesty to all those who had been on death row for ten years. The author did not benefit, even though he had been in prison for 11 years (he was arrested in 1993), because he had been removed from death row for two years from 1997–99. The HRC found a breach of article 6(4) in the following terms: ¶7.5. The Committee notes the author’s allegations that he was transferred from death row to the long-term section of the prison for two years. After he had been transferred back to death row, the president issued an amnesty or commutation applicable to prisoners who had been on death row for more than ten years. The sentence imposed on the author, who had been in detention for 11 years, two of which he had served in the long-term section, was not commuted. In the absence of any clarifications of the State party in this regard, due weight must be given to the author’s allegations. The Committee considers that taking him

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from death row and then refusing to apply to him the amnesty applicable to those who had been on death row for ten years, deprived the author of an effective remedy in relation to his right to seek amnesty or commutation as protected by article 6, paragraph 4, together with article 2 of the Covenant.

[8.64] In Concluding Observations on Japan, the HRC criticized the fact that ‘the power of pardon, commutation or reprieve’ was not used, and that there was no ‘transparency concerning procedures for seeking benefit for such relief’.84 PERSONS EXEMPT FROM THE DEATH PENALTY

[8.65] Article 6(5) prohibits the execution of pregnant women, and persons who were under 18 at the time they committed the relevant crime.85 In addition, the HRC has hinted that intellectually disabled persons should also be immune from execution, by ‘regretting’ the failure of the United States to protect such people from the death penalty.86 In Williams v Jamaica (609/95), the HRC did not consider a complaint about the proposed execution of a ‘mentally disturbed’ individual as his sentence was commuted to life imprisonment during consideration of the complaint.87 In RS v Trinidad and Tobago (684/96), a breach of article 7 was found in respect of the issue of a death warrant upon a mentally incompetent person [9.92]. The HRC noted that there was no ‘information regarding the author’s state of mental health at earlier stages of the proceedings, [so it was] not in a position to decide whether the author’s rights under article 6 were also violated’.88 In Concluding Observations on Japan, the HRC was concerned over the fact that people with mental disabilities were executed.89 The clear implication is that the imposition of a death penalty upon someone who is mentally incompetent breaches article 6(1). [8.66] In those same Concluding Observations on Japan, the HRC was similarly concerned over the execution of persons ‘at an advanced age’.90

Non-Deportation Obligations EXTRADITION TO A STATE WITH CAPITAL PUNISHMENT91

[8.67]

KINDLER v CANADA (470/91)

One controversial issue before the HRC has arisen in the Canadian ‘extradition’ cases, of which Kindler was the first merits decision. In this case, Kindler was

84

(2008) UN doc CCPR/C/JPN/CO/5, para 16. See eg Johnson v Jamaica (592/94), para 10.3, where the author was only 17 years of age when he committed the alleged crime, and was sentenced to death in contravention of art 6(5). 86 Concluding Observations on the United States (1995) UN doc CCPR/C/79/Add.50, para 16. 87 88 At para 6.2. At para 7.2. 89 Concluding Observations on Japan (2008) UN doc CCPR/C/JPN/CO/5, para 16. 90 Concluding Observations on Japan, para 16. 91 See [9.98]ff on the related issue of deportation and refoulement of someone to states in which his/ her art 7 rights might be breached. 85

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convicted of murder in Pennsylvania and was likely to get the death sentence. He escaped to Canada, but was extradited back to the United States in September 1991. He claimed, inter alia, that the decision to extradite him violated article 6, as it subjected him to a risk of capital punishment in the United States. The United States, at the time of the communication, was not a party to the ICCPR. The HRC dismissed Canadian arguments that the communication was inadmissible ratione loci.92 On the merits, the HRC found in favour of the State Party in the following terms: ¶13.2. If a State party extradites a person within its jurisdiction in circumstances such that as a result there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant. . . . ¶14.3. The Committee notes that article 6, paragraph 1, must be read together with article 6, paragraph 2, which does not prohibit the imposition of the death penalty for the most serious crimes. Canada itself did not impose the death penalty on Mr. Kindler, but extradited him to the United States, where he faced capital punishment. If Mr. Kindler had been exposed, through extradition from Canada, to a real risk of a violation of article 6, paragraph 2, in the United States, that would have entailed a violation by Canada of its obligations under article 6, paragraph 1. Among the requirements of article 6, paragraph 2, is that capital punishment be imposed only for the most serious crimes, in circumstances not contrary to the Covenant and other instruments, and that it be carried out pursuant to a final judgment rendered by a competent court. The Committee notes that Mr. Kindler was convicted of premeditated murder, undoubtedly a very serious crime. He was over 18 years of age when the crime was committed. The author has not claimed before the Canadian courts or before the Committee that the conduct of the trial in the Pennsylvania court violated his rights to a fair hearing under article 14 of the Covenant. ¶14.4. Moreover, the Committee observes that Mr. Kindler was extradited to the United States following extensive proceedings in the Canadian Courts, which reviewed all the evidence submitted concerning Mr. Kindler’s trial and conviction. In the circumstances, the Committee finds that the obligations arising under article 6, paragraph 1, did not require Canada to refuse the author’s extradition.

[8.68] Five HRC members dissented in Kindler. Similar majority decisions and similar dissents regarding article 6 were delivered in the cases of Ng v Canada (469/91) and Cox v Canada (539/93). In Judge v Canada (829/98), the HRC majority changed its mind, and largely adopted the reasoning from the earlier dissents in Kindler, Ng, and Cox. [8.69]

JUDGE v CANADA (829/98)

The facts in Judge were similar to those in Kindler. The author was extradited from Canada to Pennsylvania, where he faced execution by electric chair. He was deported on the day of the submission of his communication to the HRC. His deportation deprived him of his ability to exercise legal rights of appeal against the deportation in Canada. The HRC ultimately had to decide upon the answer to two questions, as is made clear in its decision: 92

See [4.33].

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Question 1. As Canada has abolished the death penalty, did it violate the author’s right to life under article 6 . . . of the Covenant by deporting him to a State in which he was under sentence of death without ensuring that that sentence would not be carried out? ¶10.2. In considering Canada’s obligations, . . . the Committee recalls its previous jurisprudence in Kindler v Canada . . . The Committee’s rationale in this decision was based on an interpretation of the Covenant which read article 6, paragraph 1, together with article 6, paragraph 2, which does not prohibit the death penalty for the most serious crimes. . . . ¶10.3. While recognizing that the Committee should ensure both consistency and coherence of its jurisprudence, it notes that there may be exceptional situations in which a review of the scope of application of the rights protected in the Covenant is required, such as where an alleged violation involves that most fundamental of rights—the right to life—and in particular if there have been notable factual and legal developments and changes in international opinion in respect of the issue raised. The Committee is mindful of the fact that the abovementioned jurisprudence was established some 10 years ago, and that since that time there has been a broadening international consensus in favour of abolition of the death penalty, and in states which have retained the death penalty, a broadening consensus not to carry it out. Significantly, the Committee notes that since Kindler the State party itself has recognized the need to amend its own domestic law to secure the protection of those extradited from Canada under sentence of death in the receiving state, in the case of United States v Burns. There, the Supreme Court of Canada held that the government must seek assurances, in all but exceptional cases, that the death penalty will not be applied prior to extraditing an individual to a state where he/she faces capital punishment. It is pertinent to note that under the terms of this judgment, ‘Other abolitionist countries do not, in general, extradite without assurances.’ The Committee considers that the Covenant should be interpreted as a living instrument and the rights protected under it should be applied in context and in the light of present-day conditions. ¶10.4. . . . Paragraph 1 of article 6 . . . is a general rule: its purpose is to protect life. States parties that have abolished the death penalty have an obligation under this paragraph to so protect in all circumstances. Paragraphs 2 to 6 of article 6 are evidently included to avoid a reading of the first paragraph of article 6, according to which that paragraph could be understood as abolishing the death penalty as such. . . . In effect, paragraphs 2 to 6 have the dual function of creating an exception to the right to life in respect of the death penalty and laying down limits on the scope of that exception. Only the death penalty pronounced when certain elements are present can benefit from the exception. Among these limitations are that found in the opening words of paragraph 2, namely, that only States parties that ‘have not abolished the death penalty’ can avail themselves of the exceptions created in paragraphs 2 to 6. For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. Thus, they may not remove, either by deportation or extradition, individuals from their jurisdiction if it may be reasonably anticipated that they will be sentenced to death, without ensuring that the death sentence would not be carried out. ¶10.5. The Committee acknowledges that by interpreting paragraphs 1 and 2 of article 6 in this way, abolitionist and retentionist States parties are treated differently. But it considers that this is an inevitable consequence of the wording of the provision itself, which, as becomes clear from the Travaux Préparatoires, sought to appease very divergent views on the issue of the death penalty, in an effort at compromise among the drafters of the provision. The Committee notes that it was expressed in the Travaux that, on the one hand, one

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of the main principles of the Covenant should be abolition, but on the other, it was pointed out that capital punishment existed in certain countries and that abolition would create difficulties for such countries. The death penalty was seen by many delegates and bodies participating in the drafting process as an ‘anomaly’ or a ‘necessary evil’. It would appear logical, therefore, to interpret the rule in article 6, paragraph 1, in a wide sense, whereas paragraph 2, which addresses the death penalty, should be interpreted narrowly. ¶10.6. For these reasons, the Committee considers that Canada, as a State party which has abolished the death penalty, irrespective of whether it has not yet ratified the Second Optional Protocol to the Covenant Aiming at the Abolition of the Death Penalty, violated the author’s right to life under article 6, without ensuring that the death penalty would not be carried out. . . . Question 2. The State party had conceded that the author was deported to the United States before he could exercise his right to appeal the rejection of his application for a stay of his deportation before the Québec Court of Appeal. As a consequence the author was not able to pursue any further remedies that might be available. By deporting the author to a State in which he was under sentence of death before he could exercise all his rights to challenge that deportation, did the State party violate his rights under [article] 6 . . . of the Covenant? ¶10.8. . . . [T]he Committee notes that the State party removed the author from its jurisdiction within hours after the decision of the Superior Court of Québec, in what appears to have been an attempt to prevent him from exercising his right of appeal to the Court of Appeal. . . . ¶10.9. . . . In the instant case, by preventing the author from exercising an appeal available to him under domestic law, the State party failed to demonstrate that the author’s contention that his deportation to a country where he faces execution would violate his right to life, was sufficiently considered. The State party makes available an appellate system designed to safeguard any petitioner’s . . . rights and in particular the most fundamental of rights—the right to life. Bearing in mind that the State party has abolished capital punishment, the decision to deport the author to a state where he is under sentence of death without affording him the opportunity to avail himself of an available appeal, was taken arbitrarily and in violation of article 6, paragraph 1 alone and, read together with article 2, paragraph 3 of the Covenant. . . . 93 12. Pursuant to article 2, paragraph 3 (a) of the Covenant, the Committee concludes that the author is entitled to an appropriate remedy which would include making such representations as are possible to the receiving state to prevent the carrying out of the death penalty on the author.

[8.70] In contrast to Kindler, only one dissenting opinion was issued; Mr Ando found the complaint inadmissible. Thus, the HRC, almost by consensus, departed from Kindler, and now interprets article 6 as prohibiting the extradition of a person by a State that has abolished the death penalty to a State where the risk of that person’s capital punishment is reasonably foreseeable,94 unless the extraditing State 93 In Alzery v Sweden (1416/05), the HRC found that the swift expulsion of a person in fact breached the Optional Protocol, as it thwarted the victim’s attempts to seek an international remedy, which the state knew he wished to seek [1.67]. 94 See also Pillai v Canada (1763/08) [9.100]

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takes steps to ensure that the person will not be executed in the receiving State. It seems that the same duty does not apply where the extraditing State is a retentionist State. Such States benefit from the exceptions to the right to life in article 6(2)–(6), though it is perhaps now uncertain whether those exceptions apply at all in the context of extradition by a State, as opposed to execution by a State. [8.71] As in other contexts,95 the anomalous death penalty exception has forced the HRC to interpret the Covenant in a way that delivers an odd and perhaps illogical result. In Judge, Canada breached article 6 by extraditing the author to the United States, because the United States would foreseeably execute him. However, it is possible, depending of course on the circumstances of the execution and the original conviction, that the United States would not breach article 6 by executing the author: as a retentionist State it is allowed to use the death penalty exception in article 6(2).96 Unless the United States becomes a party to the Optional Protocol, such a hypothesis will not be tested. [8.72]

YIN FONG v AUSTRALIA (1442/05)

The author, while in Australia, was charged with corruption in China, a charge which could attract the death penalty. She unsuccessfully sought a protection visa to stay in Australia. She argued that the deportation by Australia back to China would breach article 6. The HRC agreed: ¶9.4. . . . [T]he Committee recalls that, a State party, which has itself abolished the death penalty, would violate an individual’s right to life under article 6, paragraph 1, if it were to remove a person to a country where they are under a sentence of death. The question in this case is whether there are substantial grounds for considering that there is a real risk that the author’s deportation would result in the imposition on her of such a sentence i.e. a real risk of irreparable harm. The Committee also recalls its jurisprudence that the imposition of a death sentence on a person after an unfair trial is to subject that person wrongfully to the fear that he/she will be executed in violation of article 7 of the Covenant. ¶9.5. As to the facts, it would appear that the author has not yet been charged, but that at least one warrant for her arrest was issued by the Chinese authorities. The State party concedes that the likely charges, including charges of corruption, carry the death penalty in the People’s Republic of China, but argues that it is not mandatory, and that it is not certain that she will be found guilty of these offences if charged . . . The State party does not pronounce itself on the likelihood of the Chinese authorities approaching it with a warrant for the author’s arrest if they do not intend to charge her if she returns to its jurisdiction. While recognizing that neither the Committee nor the State party are in a position to assess the guilt or otherwise of the author or to assess the likelihood of the imposition of a non-mandatory sentence in the event that she is convicted, the Committee notes that the risk to the author’s life would only be definitively established when it is too late for the State party to protect her right to life under article 6 of the Covenant. 95

See eg [9.128]. However, the author alleged that he was no longer entitled to appeal his death penalty in Pennsylvania owing to his having escaped to Canada. This circumstance may breach art 14(5) and thus taint his sentence of death, resulting in a breach of art 6. See, in this regard, [8.53]. 96

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¶9.6. The Committee observes that the State party does not contest the assertion that the author’s husband has been convicted and sentenced to death for corruption, and that the warrant issued by the Chinese authorities for the author’s arrest relates to her involvement in the same set of circumstances. The [State party’s Refugee Review Tribunal] itself, on 4 November 2004, while making no finding on the author’s guilt or innocence, rejected the contention that the charges against her are contrived. The Committee reiterates that it is not necessary to prove, as suggested by the State party, that the author ‘will’ be sentenced to death . . . but that there is a ‘real risk’ that the death penalty will be imposed on her. It does not accept the State party’s apparent assumption that a person would have to be sentenced to death to prove a ‘real risk’ of a violation of the right to life. It also notes that it is not made out from a review of the judgements available to the Committee, albeit incomplete, of the judicial and immigration instances seized of the case that arguments were heard as to whether the author’s deportation to the People’s Republic of China would expose her to a real risk of a violation of article 6 of the Covenant.

The HRC went on to find that if ‘the State party forcibly remove[d] the author to the People’s Republic of China without adequate assurances’, a breach of article 6 would arise. [8.73]

ISRAIL v KAZAKHSTAN (2024/11)

This case concerned the deportation by the author from Kazakhstan to China where he faced serious charges in China prior to his fleeing that country, including the imposition of the death penalty. Kazakhstan has abolished the death penalty, so, according to Judge, it is not permitted to extradite someone to a State where he or she may foreseeably be executed. China had given Kazakhstan diplomatic assurances that the death penalty would not be imposed. Nevertheless, the HRC found a breach of article 6: ¶9.5. . . . Moreover, it is clear that the author was sought in China for serious crimes, and could face a death sentence there. While a statement was made by the Chinese authorities in their request of extradition that the author would not be sentenced to death . . . and the State party did not address this issue, the Committee considers that a risk of conviction and death sentence being procured through treatment incompatible with article 7 of the Covenant is not removed. In the circumstances, the Committee is of the view that there is also a risk of a violation of article 6 of the Covenant. ¶9.6. The Committee recalls that if a State party removes a person within its jurisdiction to another jurisdiction where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, the State party itself may be in violation of the Covenant. In the circumstances of the present case, the Committee concludes that the author’s extradition thus amounted to a violation of articles 6 and 7 of the Covenant.

Clearly, the HRC did not trust the Chinese assurances given to Kazakhstan regarding the death penalty.97 The HRC’s main concern here seemed to be that a conviction leading to a death sentence might be procured in China by torture, in breach of both article 7 [9.105] and article 6. 97

See also Alzery v Sweden (1416/05) [9.104].

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OTHER NON-DEPORTATION OBLIGATIONS

[8.74]

WARSAME v CANADA (1959/10)

The author was a Somalian national who faced deportation to Somalia due to his criminal record in Canada. He had lived in Canada since he was four, and had never been to Somalia (he was born in Saudi Arabia). He claimed, inter alia, that his deportation to Somalia would breach Article 6: ¶3.2. The author submits that he was born outside of Somalia and has never resided in or visited the country. He has no way of identifying himself as a member of a clan originating in the Puntland, because he has very limited language skills, no family in the area, and is not familiar with clan practices or culture. Both of his parents were born in Mogadishu and have no extended family in Bossasso, where he is being returned. ¶3.3. The author fears that he will be unable to protect himself or survive in Bossasso, or elsewhere in Somalia without family or clan support, that he will be rendered homeless and vulnerable to a wide array of human rights abuses. Moreover in the absence of any way to establish that he originates from Puntland, the author may be subject to detention and/or deportation to southern or central Somalia, where the risk to his life is even greater. The author refers to documentary evidence on the situation in Somalia, indicating that it is one of the most dangerous places in the world and that all its residents face a serious risk to their lives and of cruel and unusual treatment or punishment. ¶3.4. The author also submits that these risks are amplified for a person who has no experience in Somalia, very limited language skills and lacking clan and/or family support. He also submits that, as a healthy 26-year-old he would be at a heightened risk of forced recruitment by groups such as Al-Shabaab and Hizbul Islam and even the Transitional Federal Government (TFG) and their allied forces. He also submits that, if he is deported to Somalia, he would become a victim of the country’s severe humanitarian situation. Furthermore, the author submits that he will be personally targeted upon arrival in Somalia because he is a convert to Christianity. ¶3.5. The author submits that his deportation to Somalia is equivalent to a death sentence. He maintains that his most serious crime was possession of a scheduled substance for the purposes of trafficking and that a deportation to a real and imminent risk of death is a disproportionate punishment for such an offence and in accordingly contrary to article 6, paragraph 1, of the Covenant.

The HRC agreed that the deportation would breach Article 6: ¶8.3. . . . The Committee observes that the author, who has never lived in Somalia, does not speak the language, has limited or no clan support, doesn’t have any family in Puntland would face a real risk of harm under articles 6, paragraph 1 and 7, of the Covenant. The Committee therefore concludes that the author’s deportation to Somalia would, if implemented, constitute a violation of articles 6, paragraph 1 and 7, of the Covenant.

The HRC majority98 clearly believe Somalia is a very dangerous place indeed, as it accepted that those without ties to Somalia faced the very real risk of death or torture 98 Sir Nigel Rodley, as well as Messrs Thelin, Neuman, and Iwasawa found that there was no breach of art 6.

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if sent there. It may be noted that a similar claim was made by the author in Dauphin v Canada (1792/08). The author, a Haitian national and a long-standing Canadian resident, was to be deported to Haiti due to his criminal record. He claimed the deportation would breach article 6 as ‘any person there [in Haiti] may be killed, kidnapped or ill-treated, and that the Haitian authorities would be unable to protect him’.99 The HRC found the claim to be unsubstantiated and inadmissible.

Environmental and Socio-economic Aspects of Article 6 [8.75] Ramcharan has stated that a ‘survival requirement’, such as a right to live, must be envisaged as part of the right to life, ‘[s]ince more people die on account of hunger and disease than are killed’.100 The HRC has confirmed that article 6 has a socio-economic aspect. GENERAL COMMENT 6 ¶5. Moreover, the Committee has noted that the right to life has been too often narrowly interpreted. The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.

The reference to ‘desirability’ may indicate that States have a moral ‘soft law’ obligation, rather than a legal ‘hard law’ duty, to tackle problems such as high infant mortality and low life expectancy.101 [8.76]

EHP v CANADA (67/80)

¶1.1. The author of the communication (initial letter dated 11 April 1980, and further letter dated 4 February 1981) is a Canadian citizen. She submitted the communication on her own behalf and, as Chairman of the Port Hope Environmental Group, on behalf of present and future generations of Port Hope, Ontario, Canada, including 129 Port Hope residents who have specifically authorised the author to act on their behalf. The author describes the facts as follows. ¶1.2. During the years 1945 to 1952, the Eldorado Nuclear Ltd., a Federal Crown Corporation and Canada’s only radium and uranium refinery, disposed of nuclear waste in dumpsites within the confines of Port Hope, Ontario, a town of 10,000 inhabitants, located in an area which is planned to become among those most densely populated in North America. In 1975, large-scale pollution of residences and other buildings was discovered (unsuspecting citizens had used material from the dumpsites as fill or building material 99

At para 3.1. B Ramcharan, ‘The Right to Life’ (1983) 30 NILR 297, 305; cf Y Dinstein, ‘The Right to Life, Physical Integrity, and Liberty’, in L Henkin (ed), The International Bill of Rights (Columbia University Press, 1981), 115. 101 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 124, n 17. 100

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for their houses). The Atomic Energy Control Board (AECB), a Federal Government licensing and regulating agency with all responsibility regarding nuclear matters in Canada, initiated a cleaning operation and, from 1976 to 1980, the excavated waste material from approximately 400 locations was removed and relocated elsewhere (at distances ranging from 6 miles to 200 miles away from Port Hope). These new dumpsites have now been closed for further removal of radio-active waste from Port Hope. The author claims that the reasons are political, that is, that no other constituency wishes to accept the waste and that the Federal Government is unwilling to come to grips with the problem. In the meantime, approximately 200,000 tons (AECB estimate) of radio-active waste remains in Port Hope and is being stored, in the continuing clean-up process, in eight ‘temporary’ disposal sites in Port Hope, near or directly beside residences (one approximately 100 yards from the public swimming pool). The author maintains that this temporary solution is unacceptable and points out that large ‘temporary’ disposal sites still exist around town more than 30 years after they were licensed. The author claims that the Atomic Energy Control Board is hampered in its efforts on behalf of the inhabitants of Port Hope by the failure of the Federal Government to make alternative dumpsites available. Federal and provincial governments cannot be compelled by the AECB to provide such sites. ¶1.3. The author claims that the current state of affairs is a threat to the life of present and future generations of Port Hope, considering that excessive exposure to radio-activity is known to cause cancer and genetic defects, and that present health hazards for Port Hope residents include alpha, beta and gamma emissions and radon gas emissions above the approved levels of safety, that is the safety levels approved by AECB, based on the standards of safety set by the International Commission on Radiological Protection. . . .

In its admissibility decision, the HRC ‘observe[d] that the present communication raise[d] serious issues, with regard to the obligation of States parties to protect human life’.102 It also found that the author had standing to submit the communication on her own behalf, and was authorized to do so on behalf of other residents of Port Hope. She and the other residents could legitimately claim to be victims of a potential breach of article 6.103 The HRC did not decide whether she could submit the complaint on behalf of future generations. The communication was, however, declared inadmissible due to failure to exhaust domestic remedies.104 [8.77]

DAHANAYAKE v SRI LANKA (1331/04)

The authors were long-time residents of villages in southern Sri Lanka. In the mid-1990s an expressway road was proposed to run from Colombo to Matara. Ultimately, the route chosen meant that their properties had to be compulsorily acquired, and they were forced to relocate. They alleged a breach of article 6 as the environmental impact of the road had not been investigated. The State Party argued that the road project was vital to the development of the southern part of the country and would connect this area with the capital, Colombo. The HRC gave this claim little credence: ¶6.4. On the authors claim that they were victims of a violation of their right to life under article 6 because they were being deprived of a healthy environment, the Committee 102 104

At para 8. See generally Ch 6.

103

See also [3.38].

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considers that the authors have not sufficiently substantiated this claim, for purposes of admissibility, under article 2 of the Optional Protocol.

[8.78] In Brun v France (1453/06), the complaint concerned the French decision to allow a trial for open-field testing of genetically modified organisms. The author claimed that the trial would breach article 6, as environmental protection was an inherent aspect of the right to life. The HRC found the claim to be inadmissible on the basis that the author had not presented any evidence that ‘the cultivation of transgenic plants in the open field represents, in respect of the author, an actual violation or an imminent threat of violation of his right to life’.105 Though the reasoning was couched in terms of Brun failing to establish a personal risk to his own life, it seems unlikely that the trial would have been found to be incompatible with article 6. [8.79] In Concluding Observations on Kosovo, the HRC stated the following:106 ¶14. The Committee, while acknowledging the progress made in the past few months, notes with concern that Roma, Ashkali and Egyptian internally displaced persons (IDPs) living in camps in lead-polluted areas in north Mitrovica since 1999 have been relocated only recently, although the negative effects on the health of the communities concerned were known since mid-2004. The Committee is also concerned about the limited extent of consultation with the IDP communities prior to their relocation, the proximity of the temporary relocation camp Osterode to one of the contaminated sites, and the failure to provide medical follow-up treatment to the affected persons (art. 6). UNMIK should ensure that the remaining inhabitants of lead-contaminated IDP camps, as well as those temporarily transferred to the Osterode camp, are relocated to environmentally safe areas, following their consultation in accordance with the Guiding Principles on Internal Displacement (E/CN.4/1998/53/Add.2), and that the victims of lead contamination are provided with adequate medical treatment and access to effective remedies to seek and obtain compensation for any damage caused to their health.

[8.80] In Concluding Observations on Israel, the HRC stated:107 ¶18. The Committee is concerned at water shortages disproportionately affecting the Palestinian population of the West Bank, due to prevention of construction and maintenance of water and sanitation infrastructure, as well as the prohibition of construction of wells. The Committee is further concerned at allegations of pollution by sewage water of Palestinian land, including from settlements (arts. 6 and 26). The State party should ensure that all residents of the West Bank have equal access to water, in accordance with the World Health Organization quality and quantity standards. The State party should allow the construction of water and sanitation infrastructure, and wells. Furthermore, the State party should address the issue of sewage and waste water in the occupied territories emanating from Israel.

105 107

At para 6.3. (2010) UN doc CCPR/C/ISR/CO/3.

106

(2006) UN doc CCPR/C/UNK/CO/1.

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The ICCPR PLOTNIKOV v RUSSIAN FEDERATION (784/97)

The author submitted the following complaint: ¶3. The author complains that his life is threatened because of lack of money for medicine, caused by a wrong indexing law regarding savings accounts, in violation of article 6 of the Covenant.

The HRC found the complaint inadmissible: ¶4.2. The Committee notes that the author’s claim is based on the level of hyperinflation in the State party and on the indexing law which reduced the value of his savings, thus preventing the author from buying medicine. The Committee notes that the arguments advanced by the author do not substantiate, for the purposes of admissibility, that the occurrence of hyperinflation or the failure of the indexing law to counterbalance the inflation would amount to a violation of any of the author’s Covenant rights for which the State party can be held accountable.

The Plotnikov admissibility decision confirms that it will be difficult to prove that one is a victim of an article 6 violation entailed in socio-economic deprivation. Indeed, the HRC also appears to recognize that, in an economically globalized context, a State’s economic collapse can be triggered by external factors as well as internal ones. [8.82] Given that the Optional Protocol is perhaps a deficient mechanism for redressing socio-economic deprivation, it is encouraging that the HRC has addressed the socio-economic aspect of article 6 in several Concluding Observations. For example, regarding Canada:108 ¶12. The Committee is concerned that homelessness has led to serious health problems and even to death. The Committee recommends that the State party take positive measures required by article 6 to address this serious problem.

The HRC has also cited ‘the increasing rate of infant mortality’ in Romania109 and the shorter life expectancy of women in Nepal as ‘principal subjects of concern’.110 Regarding Uganda, it has expressed concern over inadequate access to HIV treatments, particularly antiretroviral medication.111 Regarding Namibia, it has expressed concern over inadequate sexual education in light of the magnitude of its HIV/AIDS crisis.112 The HRC commended Jordan for ‘its notable achievements in the field of life expectancy together with reduction of child mortality rates’,113 and Zimbabwe on its efforts to incorporate HIV/AIDS awareness into school curricula.114

108

(1999) UN doc CCPR/C/79/Add.105. (1994) UN doc CCPR/C/79/Add.30, para 11; see also Concluding Observations on Brazil (1996) UN doc CCPR/C/79/Add.66, para 23. 110 (1995) UN doc CCPR/C/79/Add.42, para 8. 111 (2004) UN doc CCPR/CO/80/UGA, para 14; see also Concluding Observations on Kenya (2005) UN doc CCPR/CO/83/KEN, para 15. 112 113 (2004) UN doc CCPR/CO/81/NAM, para 10 (1995) UN doc CCPR/C/79/Add.35, para 4. 114 (1998) UN doc CCPR/C/79/Add.89, para 7. 109

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Participation in War [8.83]

GENERAL COMMENT 6

The HRC has confirmed that article 6 obliges States to minimize war and armed conflict: ¶2. The Committee observes that war and other acts of mass violence continue to be a scourge of humanity and take the lives of thousands of innocent human beings every year. Under the Charter of the United Nations the threat or use of force by any State against another State, except in exercise of the inherent right of self-defence, is already prohibited. The Committee considers that States have the supreme duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life. Every effort they make to avert the danger of war, especially thermonuclear war, and to strengthen international peace and security would constitute the most important condition and guarantee for the safeguarding of the right to life. In this respect, the Committee notes, in particular, a connection between article 6 and article 20, which states that the law shall prohibit any propaganda for war (para 1) or incitement to violence (para 2) as therein described.

No consensus HRC comment has specifically criticized a State for participating in a war. States have been criticized for their use of disproportionate force during war.115 NUCLEAR CAPABILITY116

[8.84] The HRC’s denunciation of armed conflict went a step further in its adoption of General Comment 14, which censured States with nuclear capabilities. GENERAL COMMENT 14 ¶3. While remaining deeply concerned by the toll of human life taken by conventional weapons in armed conflicts, the Committee has noted that, during successive sessions of the General Assembly, representatives from all geographical regions have expressed their growing concern at the development and proliferation of increasingly awesome weapons of mass destruction, which not only threaten human life but also absorb resources that could otherwise be used for vital economic and social purposes, particularly for the benefit of developing countries, and thereby for promoting and securing the enjoyment of human rights for all. ¶4. The Committee associates itself with this concern. It is evident that the designing, testing, manufacture, possession and deployment of nuclear weapons are among the greatest threats to the right to life which confront mankind today. This threat is compounded by the

115 See eg Concluding Observations on the Federal Republic of Yugoslavia (Serbia and Montenegro) (1992) UN doc A/48/40, 86–8, paras 6–7, and Concluding Observations on the Russian Federation (1996) UN doc CCPR/C/79/Add.54, paras 26–30. 116 See also Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Force of Nuclear Weapons, 8 July 1996, reprinted in (1996) 4 ILM 809. The majority judges were ultimately unable to reach a conclusion that the use of nuclear weapons was illegal in all circumstances.

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danger that the actual use of such weapons may be brought about, not only in the event of war, but even through human or mechanical error or failure. ¶5. Furthermore, the very existence and gravity of this threat generates a climate of suspicion and fear between States, which is in itself antagonistic to the promotion of universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter of the United Nations and the International Covenants on Human Rights. ¶6. The production, testing, possession, deployment and use of nuclear weapons should be prohibited and recognised as crimes against humanity. ¶7. The Committee accordingly, in the interest of mankind, calls upon all States, whether Parties to the Covenant or not, to take urgent steps, unilaterally and by agreement, to rid the world of this menace.

[8.85] In EW et al v Netherlands (429/90), the 6,588 authors submitted a complaint that deployment of nuclear weapons within the Netherlands threatened their right to life. The authors extensively cited General Comment 14 in their submissions. The HRC, however, found that the authors could not establish that they were ‘victims’ of any article 6 breach.117 Bordes and Temeharo v France (645/95) concerned the compatibility of French nuclear testing with the article 6 rights of the authors, who lived in the vicinity of the South Pacific tests. Both parties had submitted detailed evidence on the effect of nuclear testing on human beings in the area. The HRC accepted the French argument that the authors had not proven that there was a ‘real and immediate threat’ to their lives, so again the authors failed to establish their status as ‘victims’.118 [8.86] In ECW v Netherlands (524/92), the author was arrested during a demonstration against the deployment of cruise missiles. The HRC denied that this circumstance raised issues under article 6. In ARU v Netherlands (509/92), the HRC denied that the author’s conscription into the Dutch military service, which entailed participation in the NATO defence strategy ‘which is based on a threat with and the use of nuclear weapons’, was a breach of article 6. In Lindon v Australia (646/95), the author’s protestations over Australia’s maintenance of a nuclear defence research facility at Pine Gap again raised no issues under article 6. The HRC came to similar decisions in CBD v Netherlands (394/90), JPK v Netherlands (401/90), TWMB v Netherlands (403/90), Brinkhof v Netherlands (402/90), and Aalbersberg et al v Netherlands (1440/05). [8.87] General Comment 14 is one of the more controversial HRC comments.119 Though the subsequent decisions under the Optional Protocol may indicate that the HRC no longer adheres to its sentiments, the HRC reiterated its support for the 117

See [3.44]. At para 3.9. See generally [3.45]. See also LCB v UK (1999) 27 EHRR 212, where the European Court of Human Rights found that claims regarding the lethal effects of nuclear tests on Christmas Island were not sufficiently substantiated. 119 See McGoldrick, The Human Rights Committee, 335–6; R Higgins, ‘The United Nations: Still a Force for Peace’ (1989) 52 MLR 1, 4; Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 126. 118

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General Comment in Bordes and Temeharo v France (645/95). Perhaps nuclear issues are too difficult to address under the Optional Protocol, as it is difficult to prove that one is a victim of nuclear deployment. Whilst no consensus HRC comment has criticized a specific State’s nuclear policies, the HRC applauded the Ukraine’s accession to the Nuclear non-Proliferation Treaties.121 120

Women and the Right to Life [8.88]

GENERAL COMMENT 28

¶10. When reporting on the right to life protected by article 6, States parties should provide data on birth rates and on pregnancy and childbirth-related deaths of women. Gender-disaggregated data should be provided on infant mortality rates. States parties should give information on any measures taken by the State to help women prevent unwanted pregnancies, and to ensure that they do not have to undertake life-threatening clandestine abortions. States parties should also report on measures to protect women from practices, that violate their right to life, such as female infanticide, the burning of widows and dowry killings. The Committee also wishes to have information on the particular impact on women of poverty and deprivation that may pose a threat to their lives.

[8.89] The CEDAW Committee has addressed instances of domestic violence which resulted in the deaths of the victims in Goekce v Austria (CEDAW 5/05) and Yildirim v Austria (CEDAW 6/05). It has addressed a case concerning inadequate care during pregnancy, resulting in death, in Teixiera v Brazil (CEDAW 17/08). ABORTION

[8.90] Anti-abortion advocates argue that abortion constitutes a breach of the right to life of an unborn baby.122 In Queenan v Canada (1379/05), the author argued that Canada’s abortion laws breached article 6. The complaint was deemed to be inadmissible as the author was not purporting to act on behalf of any particular victim. It is questionable if a challenge to abortion can be practically raised under the Optional Protocol, as it is uncertain that anyone has the requisite standing [3.37]. [8.91] Rather than focus on whether abortion per se breaches the right to life, the HRC has focused on the detrimental human rights effects of anti-abortion laws, as occurred in General Comment 28 [8.88].123 [8.92]

LMR v ARGENTINA (1608/07)

The author’s daughter was a 20-year-old with a mental age of around ten, who became pregnant after being raped. A court at first instance issued an injunction to prevent her from attaining an abortion. That decision was overturned six weeks 120

121 At para 5.9. (1996) UN doc CCPR/C/79/Add.52, para 7. See Dinstein, ‘The Right to Life, Physical Integrity, and Liberty’, 122. 123 See also LC v Peru (CEDAW 22/09). 122

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later. By that stage, the daughter was unable to find a hospital willing to perform the operation. The author and her daughter arranged an illegal abortion to be performed when the foetus was 23 weeks old. The author alleged that the circumstances entailed a violation of article 6. The HRC found that claim to be inadmissible: ¶8.6. The Committee notes the author’s claim that the facts described constitute a violation of L.M.R.’s right to life in that the State failed to adopt the measures and act with the due diligence necessary to ensure that L.M.R. could obtain a safe abortion and prevent the need for an unlawful, unsafe abortion. The Committee observes, however, that there is nothing in the case file to indicate that L.M.R.’s life was exposed to particular danger because of the nature of her pregnancy or the circumstances in which the termination was performed. Consequently, the Committee considers that this complaint is not substantiated and is therefore inadmissible under article 2 of the Optional Protocol.

The HRC found that the illegal abortion did not threaten the life of LMR, so the article 6 claim was inadmissible. However, illegal abortions generally have a much greater likelihood of threatening the life of a woman than a legal regulated abortion. The article 6 claim should not have been dismissed on the basis that LMR was fortunate to find a person who performed the procedure competently and safely.124 [8.93] In Llantoy Huamán v Peru (1153/03), the HRC found an article 6 claim regarding the refusal of an abortion to a young girl, in circumstances where the pregnancy endangered her mental and physical health, to be admissible. However, as it ultimately found a violation of article 7 [9.58], it did not find it necessary to make a finding regarding article 6.125 [8.94] The issue has also been raised in Concluding Observations. For example, regarding Chile, the HRC stated:126 ¶15. The criminalisation of all abortions, without exception, raises serious issues, especially in the light of unrefuted reports that many women undergo illegal abortions that pose a threat to their lives. The legal duty imposed upon health personnel to report on cases of women who have undergone abortions may inhibit women from seeking medical treatment, thereby endangering their lives. The State party is under a duty to ensure the life of all persons, including pregnant women whose pregnancies are terminated. In this regard: the Committee recommends that the law be amended so as to introduce exceptions to the general prohibition on all abortions and to protect the confidentiality of medical information.

Regarding Ecuador:127 ¶11. The Committee expresses its concern about the very high number of suicides of young females referred to in the report, which appear in part to be related to the prohibition of abortion. In this regard, the Committee regrets the State party’s failure to address the resulting problems faced by adolescent girls, in particular rape victims, who suffer the consequences of such acts for the rest of their lives. Such situations are, from both the legal and practical standpoints, incompatible with articles 3, 6 and 7 of the Covenant, and with article 124

See also [9.59], [16.55], [17.26], and [23.109]. See also [9.58], [16.54], [21.13], and [23.109]. 126 (1999) UN doc CCPR/C/79/Add.104. 125

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(1998) UN doc CCPR/C/79/Add.92.

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24 when female minors are involved. The Committee recommends that the State party adopt all necessary legislative and other measures to assist women, and particularly adolescent girls, faced with the problem of unwanted pregnancies to obtain access to adequate health and education facilities.

Regarding Zambia, the HRC has said: ¶18. The Committee is concerned that despite progress made, maternal mortality remains high in Zambia. While noting the considerable efforts made by the State party in the area of family planning, the Committee is concerned that the requirement that three physicians must consent to an abortion may constitute a significant obstacle for women wishing to undergo legal and therefore safe abortion (art. 6). The State party is encouraged to increase its efforts in combating maternal mortality. It should amend its abortion laws to help women avoid unwanted pregnancies and not have to resort to illegal abortions that could put their lives at risk.

Thus, anti-abortion laws may, depending on their severity and comprehensiveness, breach not only article 6 but also articles 7 and 24, and women’s rights of non-discrimination under articles 3 and 26.128 [8.95] In Concluding Observations on the Republic of Moldova, the HRC stated: ¶18. The Committee is concerned that the delegation was unable to respond to the question of whether the practice of relying on abortion as a means of contraception is a cause of the high level of maternal mortality in the State party. The State party should undertake a careful assessment of the issue of abortion and maternal mortality and take the necessary measures to reduce the high maternal death rate. The comment indicates that abortion should generally be considered a last resort, rather than the primary method of contraception in a society. Thus, it is imperative that women are provided with access to education about alternative means of contraception.129

Regarding Poland, the HRC has stated:130 ¶9. The Committee also reiterates its concern about family planning regulations adopted by the State party. The high cost of contraception, the reduction in the number of refundable oral contraceptives, the lack of free family planning services and the nature of sexual education are also of concern to the Committee (art. 6). The State party should assure the availability of contraceptives and free access to family planning services and methods. The Ministry of Education should ensure that schools include accurate and objective sexual education in their curricula.

128 See also, amongst many others, Concluding Observations on Ireland (2008) UN doc CCPR/C/ IRL/CO/3, para 13; Nicaragua (2008) UN doc CCPR/C/NIC/CO/3, para 13; Kazakhstan (2011) UN doc CCPR/C/KAZ/CO/1, para 11. Finally, the HRC has criticized Ireland’s restrictions on information about abortion (1994) UN doc CCPR/C/79/Add.21, para 15. 129 See also Concluding Observations on Albania (2004) UN doc CCPR/CO/82/ALB, para 14; Moldova (2009) UN doc CCPR/C/MDA/CO/2, para 17; Kazakhstan (2011) UN doc CCPR/C/KAZ/ CO/1, para 11. 130 (2004) UN doc CCPR/CO/82/POL.

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Euthanasia [8.96] In 2001, the Netherlands passed the most radical euthanasia laws in the world. The HRC stated:131 ¶5. (a) The Committee discussed the issue of euthanasia and assisted suicide. The Committee acknowledges that the new Act concerning review procedures on the termination of life on request and assisted suicide, which will come into force on 1 January 2002, is the result of extensive public debate addressing a very complex legal and ethical issue. It further recognizes that the new law seeks to provide legal certainty and clarity in a situation which has evolved from case law and medical practice over a number of years. The Committee is well aware that the new Act does not as such decriminalize euthanasia and assisted suicide. However, where a State party seeks to relax legal protection with respect to an act deliberately intended to put an end to human life, the Committee believes that the Covenant obliges it to apply the most rigorous scrutiny to determine whether the State party’s obligations to ensure the right to life are being complied with (articles 2 and 6 of the Covenant). (b) The new Act contains, however, a number of conditions under which the physician is not punishable when he or she terminates the life of a person, inter alia at the ‘voluntary and well-considered request’ of the patient in a situation of ‘unbearable suffering’ offering ‘no prospect of improvement’ and ‘no other reasonable solution’. The Committee is concerned lest such a system may fail to detect and prevent situations where undue pressure could lead to these criteria being circumvented. The Committee is also concerned that, with the passage of time, such a practice may lead to routinization and insensitivity to the strict application of the requirements in a way not anticipated. The Committee learnt with unease that under the present legal system more than 2,000 cases of euthanasia and assisted suicide (or a combination of both) were reported to the review committee in the year 2000 and that the review committee came to a negative assessment only in three cases. The large numbers involved raise doubts whether the present system is only being used in extreme cases in which all the substantive conditions are scrupulously maintained. (c) The Committee is seriously concerned that the new law is also applicable to minors who have reached the age of 12 years. The Committee notes that the law provides for the consent of parents or guardians of juveniles up to 16 years of age, while for those between 16 and 18 the parents’ or guardian’s consent may be replaced by the will of the minor, provided that the minor can appropriately assess his or her interests in the matter. The Committee considers it difficult to reconcile a reasoned decision to terminate life with the evolving and maturing capacities of minors. In view of the irreversibility of euthanasia and assisted suicide, the Committee wishes to underline its conviction that minors are in particular need of protection. (d) The Committee, having taken full note of the monitoring task of the review committee, is also concerned about the fact that it exercises only an ex post control, not being able to prevent the termination of life when the statutory conditions are not fulfilled. The State party should re-examine its law on euthanasia and assisted suicide in the light of these observations. It must ensure that the procedures employed offer adequate safeguards against abuse or misuse, including undue influence by third parties. The ex ante control mechanism should be strengthened. The application of the law to minors highlights the 131

(2001) UN doc CCPR/CO/72/NET.

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serious nature of these concerns. The next report should provide detailed information as to what criteria are applied to determine the existence of a ‘voluntary and well-considered request’, ‘unbearable suffering’ and ‘no other reasonable alternative’. It should further include precise information on the number of cases to which the new Act has been applied and on the relevant reports of the review committee. The State party is asked to keep the law and its application under strict monitoring and continuing observation.

Thus, the HRC took a cautious approach to the new Dutch laws permitting ‘active’ euthanasia.132 The laws were not condemned as a breach of article 6, except in respect of the provisions regarding consent for the termination of the life of minors. Indeed, the HRC implied that the voluntary euthanasia was permissible in ‘extreme cases’ (see paragraph 5(b)), though it was concerned to ensure that all possible procedural safeguards were taken to ensure proper consent to voluntary euthanasia in all cases. [8.97] Eight years later, the HRC continued to have concerns over the Dutch law:133 ¶7. The Committee remains concerned at the extent of euthanasia and assisted suicides in the State party. Under the law on the Termination of Life on Request and Assisted Suicide, although a second physician must give an opinion, a physician can terminate a patient’s life without any independent review by a judge or magistrate to guarantee that this decision was not the subject of undue influence or misapprehension (art. 6).

[8.98] Regarding Switzerland, the HRC has stated:134 ¶13. While noting that under article 115 of the Penal Code, ‘a person who, acting from a selfish motive, incites persons to commit suicide or provides such persons with assistance with a view to suicide shall be sentenced’, the Committee is concerned about the lack of independent or judicial oversight to determine that a person seeking assistance to commit suicide is operating with full free and informed consent (art. 6). The State party should consider amending its legislation in order to ensure independent or judicial oversight to determine that a person who is seeking assistance for suicide is acting with full free and informed consent.

[8.99] The HRC clearly condemned the practice of infanticide for disabled babies, instances of which had been reported in the Netherlands. ¶6. The Committee is gravely concerned at reports that new-born handicapped infants have had their lives ended by medical personnel. The State party should scrupulously investigate any such allegations of violations of the right to life (article 6 of the Covenant), which fall outside the law on euthanasia. The State party should further inform the Committee on the number of such cases and on the results of court proceedings arising out of them. 132 See also G Zdankowski, ‘The International Covenant on Civil and Political Rights and Euthanasia’ (1997) 20 University of New South Wales Law Journal 170. 133 134 (2009) UN doc CCPR/C/NLD/CO/4. (2009) UN doc CCPR/C/CHE/CO/3.

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Conclusion [8.100] The HRC has confirmed that States are under a strict duty not to kill or attempt to kill people arbitrarily. This duty incorporates a positive obligation to investigate all State killings and punish any improper killings. [8.101] Most capital punishment cases have concerned the fairness of trials that result in a sentence of death. The HRC has strictly interpreted any defects in the trial beyond delay to constitute breaches of article 6 as well as the Covenant’s fair trial provisions. Mandatory death sentences are a breach of article 6, and it seems the reintroduction of the death penalty is prohibited. Furthermore, the extradition of an alleged felon to a State where he/she might foreseeably face the risk of capital punishment is not permitted, at least in cases where the extraditing State has abolished the death penalty. [8.102] The HRC has confirmed a broad positive element to the right to life. For example, States must control private entities to prevent and punish unjustifiable homicides. More radical perhaps is the incorporation of a socio-economic and environmental element into article 6 so as to require States to attempt to ensure that people within the jurisdiction have access to basic subsistence needs. However, no breach of these positive elements of article 6 has yet been found in Optional Protocol cases. [8.103] Numerous complaints have concerned the threat posed to life by the deployment and testing of nuclear weapons. The HRC has dismissed these complaints, which may indicate that it has retreated from the strong anti-nuclear sentiments expressed in General Comment 14. [8.104] The HRC has confirmed that abortion is compatible with article 6. Indeed, that anti-abortion laws may breach article 6: they certainly breach other ICCPR rights. The HRC has expressed caution with regard to laws which permit voluntary euthanasia.

9 Freedom from Torture and Rights to Humane Treatment— Articles 7 and 10 • Article 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.01] • Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.03] • Torture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.03] • Severity of Pain and Suffering . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.05] • Intention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.06] • Acts and Omissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.08] • Purpose Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.09] • Involvement of a Public Official . . . . . . . . . . . . . . . . . . . . . . . . . . [9.11] • The Rider of Lawful Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.22] • Findings of Torture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.23] • Torture under the ICCPR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.25] • ‘Article 7’ Treatment: Cruel, Inhuman, and Degrading Treatment or Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.28] • Restrictions on Article 7 Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.40] • Specific Violations of Article 7 and the Convention Against Torture . . . . .[9.49] • Evidentiary Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.54] • The Rights of Women and Other Vulnerable People under Article 7 . [9.57] • Mental Distress. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.68] • Capital Punishment and the Death Row Phenomenon . . . . . . . . . . . [9.78] • Method of Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.94] • Extradition, Expulsion, Refoulement . . . . . . . . . . . . . . . . . . . . . . . . [9.98] • Corporal Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.127] • Conditions of Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.131] • Poor Medical Treatment in Detention . . . . . . . . . . . . . . . . . . . . . . [9.136] • Solitary Confinement and Detention Incommunicado . . . . . . . . . . [9.141] • Disappearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.145] • Unauthorized Medical Experimentation . . . . . . . . . . . . . . . . . . . . [9.146] • Duties to Train Appropriate Personnel. . . . . . . . . . . . . . . . . . . . . . . . [9.150] • Duties to Institute Procedures to Minimize Risks of ‘Article 7 Treatment’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.151] • Duty to Prevent Detention Incommunicado . . . . . . . . . . . . . . . . . . [9.154] • Non-use of Statements Obtained after Article 7 Treatment in Judicial Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.156] • Duties to Remedy Breaches of Article 7 . . . . . . . . . . . . . . . . . . . . . . [9.159] • Duty to Pass and Enforce Legislation . . . . . . . . . . . . . . . . . . . . . . [9.159] • Duty to Investigate Allegations of Article 7 Treatment . . . . . . . . . [9.161] • Duty to Compensate Victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.174] • Duty to Punish Offenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.176] • Amnesties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.183] • Universal Jurisdiction over Torturers . . . . . . . . . . . . . . . . . . . . . . . . . [9.188] • Article 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [9.193]

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• Meaning of ‘Persons Deprived of their Liberty’ . . . . . . . . . . . . . . . . • Private Detention Institutions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Minimum Conditions of Detention . . . . . . . . . . . . . . . . . . . . . . . . . . • Solitary Confinement and Detention Incommunicado . . . . . . . . . . • Communication with Family and Friends . . . . . . . . . . . . . . . . . . . • Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Death Row Phenomenon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Victimization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Positive Duties under Article 10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . • Article 10(2)(a)—Segregation of Accused Persons from Convicted Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Article 10(2)(b) and 10(3)—Protection for Juvenile Detainees . . . . • Article 10(3)—Rehabilitative Purpose for Detention . . . . . . . . . . . . • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[9.195] [9.196] [9.200] [9.218] [9.221] [9.222] [9.223] [9.224] [9.225] [9.232] [9.237] [9.240] [9.250]

Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

[9.01] Article 7 prohibits torture and inhuman and degrading treatment, and punishment. It is one of the few absolute rights in the ICCPR; no restrictions are permitted. Furthermore, it is a non-derogable right. Article 7 prohibits three levels of ‘bad’ treatment or punishment of a person. The prohibition on heinous ‘treatment’ is broader than the prohibition on heinous ‘punishment’; the latter is inflicted for a disciplinary purpose (however unsound), whilst treatment can be inflicted for numerous purposes. Article 7 is complemented in the ICCPR by article 10, which prohibits less serious forms of treatment than that prohibited by article 7. Article 10 is discussed below.1 [9.02] The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT) expands on the scope of obligations not to commit torture and, to a lesser extent, other heinous forms of punishment or treatment. One may expect HRC jurisprudence regarding torture to be consistent with that of the Committee Against Torture (CAT Committee).2 This chapter will refer to the jurisprudence of both bodies. DEFINITIONS

Torture [9.03] Torture is the most reprehensible of the three standards of treatment prohibited by article 7 and CAT.3 The definition of torture, as opposed to inhuman 1

See [9.193]ff. See eg arguments of counsel in Cox v Canada (539/93), para 9.4. M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005), 160. See also the arguments of the State Party in Vuolanne v Finland (265/87), para 6.4. 2 3

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or degrading treatment or punishment, is important, even though perpetration of all three forms of treatment is prohibited under the treaties. Certain consequences may flow from a finding of torture which do not flow from a finding of a lesser standard of treatment. For example, article 16 of CAT prescribes that only articles 10 to 13 of the CAT apply to the less heinous forms of treatment.4 Finally, it is of moral value to a State not to be branded a ‘torturer’ even if it is branded a sponsor of inhuman and/or degrading treatment; a special stigma attaches to torture.5 [9.04] Article 1 of the CAT provides a definition of torture that is widely accepted in view of that treaty’s universal status. ARTICLE 1, CAT 1. For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Severity of pain and suffering [9.05] This definition confirms that ‘torture’ entails a certain severity in pain and suffering. Importantly, this suffering can be mental as well as physical. International human rights cases have confirmed that the threshold of severity for torture is extremely high. For example, the European Court of Human Rights found that the combined effects of the following interrogation techniques, which were used on terrorist suspects in the United Kingdom in the early 1970s, constituted inhuman treatment rather than torture: hooding detainees, subjecting them to constant and intense ‘white’ noise, sleep deprivation, giving them insufficient food and drink, and making them stand for long periods in a painful posture (‘wall-standing’).6 The Court’s first finding of torture did not occur until 1997, when it found that the repeated rape in custody of the complainant in Aydin v Turkey constituted torture.7 Intention [9.06] Under article 1, an act of torture has to be inflicted intentionally. Does this ‘intention’ relate to an intention to cause pain and suffering or an intention to commit the actual act? The latter would yield a broader definition; it is quite 4

However, see [9.174]. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 160; see also Aydin v Turkey (1998) 25 EHRR 251, para 82. 6 Ireland v UK (1979–80) 2 EHRR 25, para 167. See, however, n 37 below. 7 Aydin v Turkey (1998) 25 EHRR 251, paras 80–6. 5

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possible not to anticipate or specifically ‘intend’ to induce the level of pain and suffering actually caused by a certain act. As the definition refers twice more to ‘pain and suffering’, it seems that the relevant intention is to cause, or at least be recklessly indifferent to the possibility of causing, that pain and suffering. Thus, ‘negligent’ infliction of pain and suffering, which is not as morally culpable as intentional infliction, does not constitute ‘torture’.8 Furthermore, acts that would not cause extreme pain and suffering to an ordinary person are normally outside the definition. The requisite intent would be missing, unless the torturer was aware of the victim’s special susceptibilities. [9.07]

ROJAS GARCÍA v COLOMBIA (687/96)

The facts are detailed immediately below: ¶2.1. On 5 January 1993, at 2 a.m., a group of armed men wearing civilian clothes, from the Public Prosecutor’s Office (Cuerpo Técnico de Investigación de la Fiscalía), forcibly entered the author’s house through the roof. The group carried out a room-by-room search of the premises, terrifying and verbally abusing the members of the author’s family, including small children. In the course of the search, one of the officials fired a gunshot. Two more persons then entered the house through the front door; one typed up a statement and forced the only adult male (Alvaro Rojas) in the family to sign it; he did not allow him to read it, or to keep a copy. When Alvaro Rojas asked whether it was necessary to act with such brutality, he was told to talk to the Public Prosecutor, Carlos Fernando Mendoza. It was at this juncture that the family was informed that the house was being searched as part of an investigation into the murder of the mayor of Bochalema, Ciro Alonso Colmenares.

The evidence indicated that the police raided the wrong house, and ceased once they realized this fact. The raid was found to breach the author’s right of privacy under article 17 [16.28]. The majority also found that the treatment of the author and his family during the raid breached article 7. Messrs Ando and Shearer dissented regarding article 7 in the following terms: As the author himself states, the search party apparently hit the wrong house (No. 2–44 instead of No. 2–36) and when they realized that an official of the local prosecutor’s office lived in the house, some of the party’s members apologized and said that there had been a mistake . . . To our mind, the search party must have expected strong resistance, even by firearms, from the house because they had assumed that the murderer or murderers of the mayor were hiding in it. . . . In our view, the search party had been acting in good faith until they realized that they had hit a wrong target. The State party maintains that the raid of the author’s house was in compliance with the law. The State party also asserts that the director of the local investigating office opened a preliminary inquiry into the gunshot and considered it not as misconduct but as an accident. . . . Under the circumstances we conclude that the search party had not intent to terrify the author’s family. 8 J Herman Burgers and H Danelius, The United Nations Convention Against Torture (Martinus Nijhoff, 1988), 118.

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Ordinarily article 7 requires an intent on the part of an actor as to possible effects of his/ her act, and the lack of such intent works to eliminate or extenuate unlawfulness of the act. This holds true for police investigations such as the one in the present case. Therefore, in our view, there has been no violation of article 7 in this case.

The decision highlights the vexed issue of intent and article 7 violations (which of course go beyond the issue of ‘torture’ in article 1 of CAT). Certainly, the police in Rojas García intended to perform the impugned acts, but did not intend to perform them on the actual victims in this case. The HRC has rarely undertaken a close examination of the intent of a perpetrator of article 7 abuse. Certainly, violations have been found in a number of cases where the perpetrator would have had no particular intent to harm the actual victim.9 Acts and omissions [9.08] Does the reference to an ‘act’ of torture preclude omissions from being classified as ‘torture’? For example, would the deliberate withholding of food or medical attention constitute torture? Boulesbaa has persuasively argued that any failure to extend the definitions to omissions would be ‘nothing less than a ploy to help States evade the provisions of the Convention’, and would be contrary to the object and purpose of CAT.10 Therefore, affirmative and negative conduct should suffice to constitute torture, if the other requisite elements of the definition are present. Indeed, the HRC has clearly found that omissions have breached article 7 (though they may not have necessarily entailed findings of ‘torture’). Purpose requirement [9.09] Article 1 CAT also prescribes that torture be inflicted for a purpose. The definition lists a number of example purposes, though the list is not exhaustive. The enumerated purposes are all linked to a desire personally to persecute victims because of who they are. It is uncertain whether the prescribed ‘purposes’ have to be similar to the enumerated purposes. For example, would an act committed on a random victim solely for the self-gratification of a sadist be a torturous act committed for a relevant purpose?11 Would a medical experiment conducted out of ‘curiosity’ constitute torture?12 Any malevolent purpose would hopefully satisfy this aspect of the definition. [9.10] The requirement of a malevolent purpose saves acts committed with a benevolent purpose from being classified as torture.13 An example of the latter See eg Quinteros v Uruguay (107/81) [9.68]. A Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement (Martinus Nijhoff, 1999), 15. 11 See Burgers and Danelius, The United Nations Convention Against Torture, 119. 12 See Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement, 21. Such a practice would breach art 7 ICCPR as it would probably constitute ‘unauthorised medical experimentation’ [9.146]ff. 13 Note, however, that the ‘purposes’ are not necessarily malevolent, in that it may be perfectly legitimate to attempt to seek information from somebody: Burgers and Danelius, The UN Convention on Torture and the Prospects for Enforcement, 118. 9

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act would be performance of an emergency amputation without anaesthetic. Nevertheless, the purpose requirement in the definition of torture has been apparently endorsed by the HRC [9.25].14 Involvement of a public official [9.11] Article 1 CAT also specifies that ‘the pain and suffering should be inflicted at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’. Article 16 CAT extends the requirement of involvement by a public official to the Convention’s proscription of cruel, inhuman, and degrading treatment. On the other hand, article 7 of the ICCPR may not contain any requirement of public official involvement [9.19]. Articles 1 and 16 CAT specify a sliding scale of the required official involvement in an act, with ‘acquiescence’ constituting the weakest level, before that act will be defined as ‘torture’.15 The meaning of acquiescence is therefore crucial in the quest to render non-State actions accountable under the CAT. Does the failure to proscribe a certain type of torture constitute acquiescence? Does weak enforcement of such a proscription, or the adoption of enforcement procedures which are not victim-sensitive (and thus discourage formal complaint), constitute acquiescence? The inclusion of the ‘public official’ requirement in the definition is designed to prevent States from being held liable for acts beyond their control. However, States should be held liable for private tortures if they fail to respond adequately to them, or fail to take reasonable measures to prevent them. The following case addresses whether such failures on the part of the State amount to ‘acquiescence’ for the purposes of CAT. [9.12]

DZEMAJL et al v YUGOSLAVIA (CAT 161/00)

The authors were 65 people of Romani origin. The case concerned a race riot prompted by the rape of a Montenegrin girl in Danilovgrad, and the subsequent arrest and confession of two Romani men (allegedly under duress). After the arrests, a crowd assembled that night calling for the expulsion of the Roma from the settlement, and threatening violence. The police warned the Roma in the settlement, as well as those released from detention (other men had been arrested besides the two who confessed), that they had to leave or risk being lynched by angry non-Roma neighbours. The next morning, a group of Danilovgrad non-Roma residents entered the Roma settlement and attacked the houses owned by the complainants. That afternoon hundreds of non-Roma entered the settlement, which was deserted by then. The mob destroyed the settlement, including the complainants’ personal 14 D Harris, M O’Boyle, and C Warbrick, The Law of the European Convention on Human Rights (Butterworths, 1995), 60, on how ‘purpose’ is probably included within the European definition. The definition of ‘torture’ in art 2 of the Inter-American Convention to Prevent and Punish Torture 1985 states that torture may be committed for ‘any purpose’. 15 See, generally, R McCorquodale and R La Forgia, ‘Taking off the Blindfolds: Torture by non-State Actors’ (2001) 1 Human Rights Law Review 189, 205–11.

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property and livestock. The police allegedly did nothing to stop the pogrom. The authors claimed that these facts amounted to either torture, or treatment contrary to article 16 of CAT. On the ‘public official’ requirement, they noted: ¶3.7. With regard to the fact that the acts have mostly been committed by non-State actors, the complainants rely on a review of international jurisprudence on the principle of ‘due diligence’ and remind the current state of international law with regard to ‘positive’ obligations that are incumbent on States. They submit that the purpose of the provisions of the Convention is not limited to negative obligations for States parties but include positive steps that have to be taken in order to avoid that torture and other related acts are committed by private persons. ¶3.8. The complainants further contend that the acts of violence occurred with the ‘consent or acquiescence’ of the police whose duty under the law was to secure their safety and afford them protection. . . . ¶8.8. Concerning the perpetrators of the alleged violations of . . . the Convention, the complainants submit that although only a public official or a person acting in an official capacity could be the perpetrator of an act in the sense of either of the above provisions, both provisions state that the act of torture or of other ill-treatment may also be inflicted with the consent or acquiescence of a public official. Therefore, while they do not dispute that the acts have not been committed by the police officers or that the latter have not instigated them, the complainants consider that they have been committed with their consent and acquiescence. The police were informed of what was going to happen on 15 April 1995 and were present on the scene at the time when the pogrom took place but did not prevent the perpetrators from committing their wrongdoing. . . . ¶8.13. In conclusion, the complainants submit that ‘they were indeed subjected to acts of community violence inflicting on them great physical and mental suffering amounting to torture and/or cruel, inhuman and degrading treatment or punishment’. They further state that ‘this happened for the purpose of punishing them for an act committed by a third person (the rape of S.B.), and that the community violence (or rather the racist pogrom) at issue took place in the presence of, and thus with the “consent or acquiescence” of, the police whose duty under law was precisely the opposite—to secure their safety and afford them protection’.

The CAT Committee agreed that CAT had been violated: ¶9.2. As to the legal qualification of the facts that have occurred on 15 April 1995, as they were described by the complainants, the Committee first considers that the burning and destruction of houses constitute, in the circumstances, acts of cruel, inhuman or degrading treatment or punishment. The nature of these acts is further aggravated by the fact that some of the complainants were still hidden in the settlement when the houses were burnt and destroyed, the particular vulnerability of the alleged victims and the fact that the acts were committed with a significant level of racial motivation. Moreover, the Committee considers that the complainants have sufficiently demonstrated that the police (public officials), although they had been informed of the immediate risk that the complainants were facing and had been present at the scene of the events, did not take any appropriate steps in order to protect the complainants, thus implying ‘acquiescence’ in the sense of article 16 of the Convention. In this respect, the Committee has reiterated on many instances its concerns about ‘inaction by police and law-enforcement officials who fail to provide adequate

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protection against racially motivated attacks when such groups have been threatened’ . . . Although the acts referred to by the complainants were not committed by public officials themselves, the Committee considers that they were committed with their acquiescence and constitute therefore a violation of article 16, paragraph 1, of the Convention by the State party.

Thus, police inaction in the face of blatant torture (or cruel, inhuman and degrading treatment) constitutes acquiescence on the part of the State in the perpetration of that treatment, contrary to article 1 (or article 16) CAT. The Dzemajl decision indicates that a State’s failure to take reasonable steps to prevent torture (or cruel, inhuman and degrading treatment) constitutes acquiescence, giving rise to accountability under CAT.16 [9.13]

ALZERY v SWEDEN (1416/05)

The author in this case, who was suspected of having terrorist links, was deported to Egypt. He described the circumstances of his expulsion as so: ¶3.10. In the afternoon of 18 December 2001, a few hours after the decision to expel was taken, Swedish Security Police detained the author. . . . After a few hours in detention, he was transferred by vehicle to Bromma airport. He was then escorted to the police station at the airport, where he was handed over to some ten foreign agents in civilian clothes and hoods. Later investigations by the Swedish Parliamentary Ombudsman, disclosed that the hooded individuals were United States’ and Egyptian security agents. ¶3.11. The author states that the hooded agents forced him into a small locker room where they exposed him to what was termed a ‘security search’, although Swedish police had already carried out a less intrusive search. The hooded agents slit the author’s clothes with a pair of scissors and examined each piece of cloth before placing it in a plastic bag. Another agent checked his hair, mouths and lips, while a third agent took photographs, according to Swedish officers who witnessed the searches. When his clothes were cut off his body, he was handcuffed and chained to his feet. He was then drugged per rectum with some form of tranquilliser and placed in diapers. He was then dressed in overalls and escorted to the plane blindfolded, hooded and barefooted. Two representatives from the Embassy of the United States of America were also present during the apprehension and treatment of the applicant. In an aircraft registered abroad, he was placed on the floor in an awkward and painful position, with chains restricting further movement. The blindfold and hood stayed on throughout the transfer including when he was handed over to Egyptian military security at Cairo airport some five hours later. According to his (then) Swedish counsel, the blindfold remained on until 20 February 2002, and was only removed for a few days in connection with visits by the Swedish Ambassador on 23 January 2002 and an interview with a Swedish journalist in February 2002.

The author is stating that his transfer to Egypt was facilitated by US agents. Indeed, this expulsion has come to be exposed as a disgraceful instance of extraordinary rendition in the ‘war on terror’.17 Even though the ill treatment arose from US See also Osmani v Republic of Serbia (CAT 261/05). See ‘CIA terror deportee given residency in Sweden’, The Local, 4 July 2012, available at (accessed 2 October 2012). See also Concluding Observations on 16 17

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agents, the HRC found that Sweden was complicit in that treatment, in breach of article 7: ¶11.6. On the issue of the treatment by the author at Bromma airport, the Committee must first assess whether the treatment suffered by the author at the hands of foreign agents is properly imputable to the State party under the terms of the Covenant and under applicable rules of State responsibility. The Committee notes that, at a minimum, a State party is responsible for acts of foreign officials exercising acts of sovereign authority on its territory, if such acts are performed with the consent or acquiescence of the State party (see also article 1 of the Convention against Torture). It follows that the acts complained of, which occurred in the course of performance of official functions in the presence of the State party’s officials and within the State party’s jurisdiction, are properly imputable to the State party itself, in addition to the State on whose behalf the officials were engaged. Insofar as the State party accepts the finding of its Parliamentary Ombudsman that the treatment suffered was disproportionate to any legitimate law enforcement purpose, it is evident that that the use of force was excessive and amounted to a breach of article 7 of the Covenant. It follows that the State party violated article 7 of the Covenant as a result of the treatment suffered by the author at Bromma airport.

The CAT Committee came to similar conclusions in the almost identical case of Agiza v Sweden (CAT 233/03), where the complainant was in fact rendered at the same time and in the same way as Mr Alzery. [9.14]

GRB v SWEDEN (CAT 83/97)

The author complained that her planned deportation to Peru would violate article 3 CAT, which prohibits deportation to a State where one might be tortured [9.108], as she faced a foreseeable danger of torture upon her return to Peru. One of the author’s complaints related to the anticipated danger posed to her upon her return by Sendero Luminoso (‘Shining Path’), a Peruvian terrorist group. With regard to this complaint, the State party argued: ¶4.14. As regards the persecution that the author fears from the Sendero Luminoso, the State party stresses that the acts of Sendero Luminoso cannot be attributable to the authorities. Nevertheless, the State party recognises that, depending on the circumstances in the individual case, grounds might exist to grant a person asylum although the risk of persecution is not related to a government but to a non-governmental entity. However, the State party’s view in the present case is that, even if there is a risk of persecution from Sendero Luminoso, it is of local character and the author could therefore secure her safety by moving within the country.

The CAT Committee found in favour of the State Party on this point. After reiterating article 1, the Committee noted: ¶6.5. . . . The Committee considers that the issue whether the State party has an obligation to refrain from expelling a person who might risk pain or suffering inflicted by a nongovernmental

the Czech Republic (2007) UN doc CCPR/C/CZE/CO/2, para 8; Ireland (2008) UN doc CCPR/C/IRL/ CO/3, para 11; Denmark (2008) UN doc CCPR/C/DNK/CO/5, para 9.

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entity, without the consent or acquiescence of the Government, falls outside the scope of article 3 of the Convention.

Even though the Peruvian government, as alleged in GRB, may have been incapable of protecting the author from torture by the Sendero Luminoso terrorist group, this does not mean that the Peruvian government ‘acquiesced’ in Sendero Luminoso abuses. It seems likely that Peruvian government was taking reasonable steps to combat Sendero Luminoso, given its interest in doing so; Sendero Luminoso has a record of violent opposition to the Peruvian government. Inability to protect a person from a non-governmental actor is distinguishable from a failure to take reasonable steps so to protect that person. GRB is therefore perhaps distinguishable from Dzemajl [9.12].18 The CAT Committee has followed its GRB decision in numerous cases, including VXN and HN v Sweden (CAT 130–131/99), SV v Canada (49/96), MPS v Australia (CAT 138/99), SS v Netherlands (CAT 191/01), MF v Sweden (CAT 326/2007), Güclü v Sweden (CAT 349/08), and Aytululin and Güclü v Sweden (CAT 373/09) [9.15]

ELMI v AUSTRALIA (CAT 120/98)

The author alleged that his proposed deportation to Somalia would breach article 3 CAT, as he risked torture by Somalian militia groups. The State Party argued that those groups were non-State actors so article 3 was not engaged. The author’s counsel responded: ¶5.5. In relation to Somalia, there is abundant evidence that the clans, at least since 1991, have, in certain regions, fulfilled the role, or exercised the semblance, of an authority that is comparable to government authority. These clans, in relation to their regions, have prescribed their own laws and law enforcement mechanisms and have provided their own education, health and taxation systems. The report of the independent expert of the Commission on Human Rights illustrates that States and international organisations have accepted that these activities are comparable to governmental authorities and that ‘[t]he international community is still negotiating with the warring factions, who ironically serve as the interlocutors of the Somali people with the outside world’.

The HRC found in favour of the author: ¶6.5. The Committee does not share the State party’s view that the Convention is not applicable in the present case since, according to the State party, the acts of torture the author fears he would be subjected to in Somalia would not fall within the definition of torture set out in article 1 (i.e. pain or suffering inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity, in this instance for discriminatory purposes). The Committee notes that for a number of years 18 Note, however, that the author in GRB claimed at para 2.3 that she had been raped by members of Sendero Luminoso, and that the police showed no interest in the matter. This circumstance, however, was not part of the substantive complaint, which of course was against Sweden rather than Peru. It does, however, indicate perhaps a potential unwillingness on the part of Peruvian authorities to protect GRB from Sendero Luminoso upon her return to Peru, and thus an acquiescence by those authorities in any harm that might be perpetrated upon the author by the terrorist group. See also McCorquodale and La Forgia, ‘Taking off the Blindfolds’, 209–10.

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Somalia has been without a central government, that the international community negotiates with the warring factions and that some of the factions operating in Mogadishu have set up quasi-governmental institutions and are negotiating the establishment of a common administration. It follows then that, de facto, those factions exercise certain prerogatives that are comparable to those normally exercised by legitimate governments. Accordingly, the members of those factions can fall, for the purposes of the application of the Convention, within the phrase ‘public officials or other persons acting in an official capacity’ contained in article 1.

[9.16] It is arguable that in neither GRB nor Elmi was the central government capable of protecting the respective author from torture by non-governmental groups. The major difference between the cases, evinced from the decisions, is that Elmi concerned the forced return of the author to a State (Somalia) where no central government actually existed. In GRB, the CAT Committee would not deem Sendero Luminoso personnel to be public officials, even if they were in effective control of some areas of Peru, as ‘public’ power in Peru was exercised de jure by the Peruvian government. In the absence of any de jure government control, as in Somalia at the time of the Elmi decision (May 1999), the CAT Committee will be more likely to recognize people with de facto power as ‘public officials’.19 It is interesting to speculate whether the CAT Committee would find rebel groups in effective control of land during a recognized state of war with a central government to be ‘public officials’. [9.17] From a humanitarian point of view, the important issue is whether the person can be protected by the government from torture, regardless of whether the threat comes from government agents or non-governmental groups. ‘Lack of likely protection’ is perhaps more easily established when there is no central government, but can occur where recognized central governments are incapable of controlling rapacious non-governmental groups. A more humanitarian interpretation of ‘torture’ under CAT, which would be particularly relevant in cases where the central government is unable (rather than unwilling) to control anti-government forces, would probably necessitate a rewriting of the article 1 definition. [9.18]

CAT GENERAL COMMENT 2

¶18. The Committee has made clear that where State authorities or others acting in official capacity or under colour of law, know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by non-State officials or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private actors consistently with the Convention, the State bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention for consenting to or acquiescing in such impermissible acts. Since the failure of the State to exercise due diligence to intervene to stop, sanction and provide remedies to victims of torture facilitates and enables non-State actors to commit acts impermissible under the Convention with impunity, the State’s indifference or inaction provides a form of encouragement and/or de facto permission. The Committee has applied this principle to 19

See also Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement, 27–8.

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States parties’ failure to prevent and protect victims from gender-based violence, such as rape, domestic violence, female genital mutilation, and trafficking.

Threfore, the CAT Committee has explicitly adopted a standard of due diligence in deciding whether an official has acquiesced in activity which contravene CAT. It nevertheless seems likely that it is a stricter standard of due diligence than that which generally applies under the ICCPR [4.19] due to the express reference to public official involvement in both articles 1 and 16. If the standards were the same, those explicit references would arguably serve no purpose. However, one may also note that the CAT has recently adopted a fairly lenient decision in this regard, concerning State responsibility for widespread rape in the DRC, in the non-refoulement case of Njamba and Balikosa v Sweden (CAT 322/07) [9.65]. [9.19] As noted below, ‘torture’ is not defined in article 7 of the ICCPR. It is possible that the HRC applies a more lenient standard in this respect, such that torture or ill-treatment by a non-State actor is easier to bring within the scope of article 7 than it is to bring within the CAT. Indeed, in paragraph 2 of General Comment 20, the HRC states that States Parties have a positive duty to prohibit torture, inhuman and degrading treatment by private people. Therefore, the HRC has specifically acknowledged the importance of combating ‘private’ assaults on bodily integrity and dignity. [9.20] In Wilson v Philippines (868/00), the complaint concerned, inter alia, poor prison conditions, as well as violent behavior against the author by inmates and prison guards. The HRC seemed to single out the latter as a breach of article 7, but not the former. It found that the treatment as a whole breached article 10(1) [9.135]. It then stated: ¶7.2. . . . As at least some of the acts of violence against the author were committed either by the prison guards, upon their instigation or with their acquiescence, there was also a violation of article 7.

Wilson indicates that the need for the involvement of a public official, in the form of at least acquiescence, is needed in order for particular conduct to be found to be a breach of article 7. However, the following cases indicate otherwise. [9.21]

CHEN v NETHERLANDS (1609/07)

The claim against deportation here arose from an apparent apprehension of torture by non-State groups upon return to China.20 In particular, the threat allegedly arose from a person who was owed money by the author’s deceased father. The HRC found the claim to be inadmissible: ¶6.4. With regard to the author’s allegation under article 7, that the individual who allegedly abducted him may threaten or harm him should he return to China, the Committee observes that these acts are attributed to a non-State actor, and the author has not demonstrated, for admissibility purposes, that the Chinese authorities are unable or unwilling to protect him 20

See also [9.98]ff.

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from such private acts. The Committee hence declares this part of the communication inadmissible under article 2 of the Optional Protocol.

The HRC did not say that the claim fell outside the scope of article 7 due to the non-State source of the threat. Rather, the claim was inadmissible due to the failure by the author to demonstrate that China would fail to protect her from that threat. Chen followed an earlier decision in Khan v Canada (1302/04). In that case, the author alleged that his deportation to Pakistan would expose him to the threat of torture by terrorist groups. The claim failed due to a lack of substantiation,21 rather than the claim itself falling outside the scope of the ICCPR. Therefore, it seems that the ICCPR is a better source of protection for those seeking to avoid torture from private actors than the CAT. The rider of lawful sanctions [9.22] The article 1 CAT definition excludes ‘pain or suffering arising only from, inherent in or incidental to lawful sanctions’. Thus, it may be that ‘lawful sanctions’ cannot amount to torture, but may still be classified under CAT as cruel, inhuman, and degrading treatment or punishment.22 However, it seems unlikely that the CAT Committee would interpret this rider so as to enable States totally to avoid being branded a ‘torturer’ simply by enacting perverse laws. ‘Lawful’ should be interpreted so as to permit sanctions that are otherwise permitted under CAT and other relevant international law.23 For example, imprisonment for reasonably serious crimes comes within such a definition of ‘lawful’, so the pain and suffering caused by such imprisonment to an extremely claustrophobic person would be excluded from the definition. However, the rider should not exempt imprisonment from being classified as ‘torture’ if the conditions of such imprisonment are extremely harsh. Findings of torture [9.23]

DRAGAN DIMITRIJEVIC v SERBIA and MONTENEGRO (207/02)

This case, decided on 24 November 2004, manifested the CAT Committee’s first specific finding of a violation of article 1. The relevant treatment was meted out by police to a Serb citizen of Roma origin, and was described as follows: ¶2.1. The complainant was arrested on 27 October 1999 at around 11 a.m. at his home in Kragujevac, Serbia, in connection with the investigation of a crime. He was taken to the local police station located in Svetozara Markovica Street. Upon arrival he was handcuffed to a radiator and beaten up by several police officers, some of whom the complainant knew by their first names or their nicknames. The police officers kicked and punched him all over his body while insulting his ethnic origins and cursing his ‘gypsy mother’. One 21

At para 5.4. A Na’im, ‘Towards a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of “Cruel Inhuman or Degrading Treatment”’, in A Na’im (ed), Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (University of Pennsylvania Press, 1992), 29–32. 23 Compare the interpretations of ‘lawful’ by the HRC at [11.91]ff and at [16.06]ff. 22

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of the officers struck the complainant with a big metal bar. Some time later the officers unfastened the complainant from the radiator and handcuffed him to a bicycle. Then they continued punching and beating him with their nightsticks and the metal bar. At one point the complainant began bleeding from his ears, despite which the beating continued until he was released at about 4.30 p.m. ¶2.2. As a result of the ill-treatment the author had to stay in bed for several days. He sustained injuries on both arms and legs, an open wound on the back of his head and numerous injuries all over his back. For several days following the incident he bled from his left ear and his eyes and lips remained swollen. Fearing reprisals by the police the complainant did not go to hospital for treatment. . . .

The CAT Committee found that the treatment, as described, constituted torture under article 1.24 [9.24] Prior to the Dragan Dimitrijevic case, the CAT Committee had been timid in making substantive findings of violation, preferring instead to focus on procedural violations, such as the failure by a State to conduct a proper investigation into allegations of torture. A good example of the previous timidity is evidenced in Abdelli v Tunisia (CAT 188/01), where no article 1 violation was found despite the detailed horrific allegations and evidence submitted. After Dragan Dimitrijecvic, similar findings of article 1 violations have been made in Danilo Dimitrijevic v Serbia and Montenegro (CAT 172/00) (beating for approximately one hour with a police club, while being tied to the wall, followed by three days of denial of food, water, and toilet facilities), Dimitrov v Serbia and Montenegro (CAT 171/2000) (13 hours of beating with hands, feet, a steel cable and a baseball bat), Ben Salem v Tunisia (CAT 269/05) (numerous beatings and kicks leading to loss of consciousness, being dragged 15 metres and up a flight of stairs face down, and having tear gas sprayed in his face which caused choking and burning in his eyes), Hanafi v Algeria (CAT 341/08) (beatings, coupled with lack of medical care, which caused the death of the victim), Ali v Tunisia (CAT 291/06) (numerous beatings and kickings leading to loss of consciousness, being stripped half naked, fear of rape), Slyusar v Ukraine (CAT 353/08) (severe beatings, very cold cell, kept awake, and threats of harm to family), and Gerasimov v Kazakhstan (CAT 433/10) (beatings causing hospitalization, threats of sexual violence, repeated suffocation with a plastic bag). Torture under the ICCPR [9.25] The HRC has not issued a specific definition of ‘torture’ for the purposes of article 7. Indeed, it has decided not to differentiate between the three levels of banned treatment/punishment in article 7. GENERAL COMMENT 20 ¶4. The Covenant does not contain any definition of the concepts covered by article 7, nor does the Committee consider it necessary to draw up a list of prohibited acts or to establish 24

At para 5.3.

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sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied.

In line with this comment, the HRC often fails to specify which aspect of article 7 has been breached; violations may simply be described as ‘violations of article 7’. This may be contrasted with the practice of the European Court of Human Rights in its interpretation of the equivalent provision of the European Convention on Human Rights, article 3. The Court usually specifies which type of ‘treatment’ has occurred.25 The HRC, on the other hand, has been able to elaborate and develop the scope of the prohibition without actually defining the terms. Interestingly, while it has failed to adopt a particular definition of torture, it has expressed concern to States over their failure to proscribe and define torture as a specific offence in domestic criminal law.26 With regard to Uzbekistan, the HRC specifically recommended that the State adopt the definition in article 1 CAT.27 [9.26]

GIRI v NEPAL (1761/08)

The author alleged that he had suffered from the following treatment after he had been in a town where authorities had chased an alleged Maoist activist: ¶2.2. . . . One RNA soldier asked the author where he was from, and where he was going. While he was answering, the two men in civilian dress who had earlier chased the Maoist activist came over. One of them told the soldiers that he had seen the author with the Maoist activist who had escaped. This man kicked the author three times in the chest and stomach with his boots. While kicking the author, he also pointed his pistol at the author and told him he was a Maoist. After the third kick, the author fell on the ground. The man kicked the author a fourth time in the chest, and the latter lost consciousness. ¶2.3. When he regained consciousness, the author was in a moving truck, lying face down. He was not blindfolded or handcuffed. As he had difficulty breathing, he asked if he could sit, and was allowed to do so. The RNA soldiers did not inform him of the reasons for his arrest, nor of his rights at the time of his arrest. He noticed men in uniforms around him, but the men in civilian dress were not in the truck. When the truck reached the highway, the author was blindfolded. Some RNA soldiers called him names and pulled his beard. About 30 minutes later, the truck stopped and the author was ordered to get down from the truck. His blindfold was moved, and the author could see that he was in an army barrack, and later heard soldiers refer to it as the Immamnagar Barrack. The soldiers then replaced his blindfold again and cuffed his hands behind his back. ¶2.4. The author was forced to walk for about 10 to 15 minutes to a building, and locked in a room called the ‘medical detention room’. It was about 3 meters by 4 meters, devoid of light, had a filthy smell and lots of mosquitoes. There were two steel beds but no bedding. See Harris et al, The Law of the European Convention on Human Rights, 56–7. Concluding Observations on Namibia (2004) UN doc CCPR/CO/81/NAM, para 11; Madagascar (2007) UN doc CCPR/C/MDG/CO/3, para 19; Barbados (2007) CCPR/C/BRB/CO/3, para 11; Botswana (2008) UN doc CCPR/C/BWA/CO/1, para 15; Ireland (2008) UN doc CCPR/C/IRL/CO/3, para 11. 27 Concluding Observations on Uzbekistan (2010) CCPR/C/UZB/CO/3, para 10; see also Concluding Observations on Israel (2010) UN doc CCPR/C/ISR/CO/3, para 11; Kuwait (2011) UN doc CCPR/C/ KWT/CO/2, para 16. 25 26

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There was a toilet attached to the room, but no water. There was a small window, but it was covered with plastic and jute sacks. The author’s hands were cuffed behind his back for the first three to four days of his detention, and were cuffed in front of him after that. The author was sharing his cell with at least one co-detainee, sometimes more, leading to overcrowding. He was not provided with adequate water, food, bedding, natural light or recreational facilities. For the first three months of his detention, both detainees were allowed to remove their blindfold and undo their handcuffs during mealtimes. Food and water would be passed by the sentry through the cell window. After the first three months of his detention, the sentries stopped undoing the author’s handcuffs at mealtime. He was told that the sentries had lost the keys for his handcuffs and could no longer undo them. He was therefore blindfolded and handcuffed throughout the remainder of his detention at the Army Barracks, which led to considerable difficulties for him to eat and use the toilet. He adds that he was only allowed to shower on two occasions during his detention, and had to ask the sentry for drinking water, which was rationed. He was never provided with a change of clothes. ¶2.5. The author was detained at the Immamnagar Army Barrack incommunicado from 29 April 2004 to 12 May 2005, i.e. for almost 13 months. At no point during his detention was he allowed to contact his family or a lawyer. RNA soldiers tortured him and subjected him to cruel, inhumane and degrading treatment. He was tortured daily for one week, usually during the day. After one week, the torture stopped for three or four days, was resumed for a few days, and then stopped again for a few days. This pattern continued for about three months, after which the frequency of the torture decreased, but it nevertheless continued for around seven months. Torture occurred during interrogations, and would include beatings on the shoulders, the back and legs with a plastic pipe and a hard wooden stick. The author was also slapped in the face, punched on the head and ears with the fist, kicked in the back with army boots, including on parts that had been beaten the previous day. The interrogator would ask the author about his involvement with the Maoists. During the torture sessions, the author would be blindfolded and handcuffed. He once recognized the voice of one of the torturers as sounding like the voice of one of the men dressed in civilian, who had beaten him upon arrest. When the author denied any involvement, the torture would be intensified. The first day of his detention, after the interrogation and beating session, the author was told to rest because he would be killed the next day by being taken up in a helicopter and thrown out of it. During his detention, he was alternatively told by some sentries that he would be freed, while others would tell him that he would be killed. Other acts of torture included rubbing his body against ice blocks, and piercing with needles of his back, his chest near his nipples and underneath his toenails. The author was moved at least twice from the medical detention room to other areas in the barracks. RNA soldiers told him that he was being moved to hide him from the International Committee of the Red Cross (ICRC) or the National Human Rights Commission (NHRC). ¶2.6. After the seventh month of his detention, the author was forced to write a confession, stating that he was a Maoist activist, that the RNA had seized documents related to the CPN-M from him, and that he now wanted to ‘surrender’. The author was forced to put his thumbprint on the document. Later, he was also forced to write and sign similar statements. After the eighth month of his detention, he was tortured on one occasion only. However, RNA soldiers would continue to verbally abuse him, some telling him he would be killed, while others would tell him he would be released. The author estimates that in total, he was tortured about 100 times. He was afraid to ask for medical assistance while in detention, and was only seen once by a doctor. As a result of the torture, he continues to suffer from

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constant headaches and dizziness, pain in his jaw, head, shoulders, back, hips and legs and was diagnosed with spinal osteoarthritis. He also experiences post traumatic symptoms such as depression, difficulty concentrating, episodes of anger, fear and anxiety, including fear of uniforms, and has flashbacks.

The HRC found a violation of article 7 and stated the following: ¶7.5. The Committee recalls its General Comment No. 20, in which it indicated that it did not ‘consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied’. Nevertheless, the Committee considers it appropriate to identify treatment as torture if the facts so warrant. In so doing, it is guided by the definition of torture found in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [in] article 1, paragraph 1 . . . The Committee is mindful that this definition differs from that in the prior Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which described torture as ‘an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment’. Accordingly, its general approach is to consider that the critical distinction between torture on the one hand, and other cruel, inhuman or degrading treatment or punishment, on the other, will be the presence or otherwise of a relevant purposive element. ¶7.6. On the basis of the information at its disposal, and recalling that article 7 allows no limitation, even in situations of public emergency, the Committee finds that the torture and ill-treatment to which the author was exposed, his incommunicado detention and his conditions of detention, reveal singular and cumulative violations of article 7 of the Covenant.

[9.27] Since Giri, the HRC has been more robust in making specific findings of ‘torture’ under article 7. In El Hagog v Libya (1755/08), the following treatment was found to constitute ‘torture’:28 ¶2.3. . . . extensive use of electric shocks on legs, feet, hands and chest while stretched naked on a steel bed; beatings on the soles of the feet; being hung by the hands; creation of a sensation of suffocation and strangulation; being suspended from a height by the arms; being threatened of attack by dogs while blindfolded; beatings on the body; injection of drugs; sleep deprivation; sensory isolation; very hot or ice-cold showers; being held in overcrowded cells; being blinded by bright lights. The author was allegedly subjected to anal rape. . . .

‘Article 7’ Treatment: Cruel, Inhuman, and Degrading Treatment or Punishment [9.28] In General Comment 20, the HRC made the following general statements on the definition of the acts prohibited by article 7 (‘article 7 treatment’): ¶2. The aim of the provisions of article 7 of the International Covenant on Civil and Political Rights is to protect both the dignity and the physical and mental integrity of the individual. It is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people 28

At para 8.6. See also Nenova v Libya (1880/09).

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acting in their official capacity, outside their official capacity or in a private capacity. The prohibition in article 7 is complemented by the positive requirements of article 10, paragraph 1, of the Covenant, which stipulates that ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’. ¶5. The prohibition in article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim. . . .

[9.29]

VUOLANNE v FINLAND (265/87)

Vuolanne was held in military detention in a small cell for ten days for disciplinary reasons. He claimed, inter alia, that this detention breached article 7. He described the conditions of his detention as follows: ¶2.6. . . . [The author] states that his punishment was enforced in two parts, during which he was locked in a cell of 2 × 3 metres with a tiny window, furnished only with a camp bed, a small table, a chair and a dim electric light. He was only allowed out of his cell for purposes of eating, going to the toilet and to take fresh air for half an hour daily. He was prohibited from talking to other detained persons and from making any noise in his cell. He claims that the isolation was almost total. He also states that in order to lessen his distress, he wrote personal notes about his relations with persons close to him, and that these notes were taken away from him one night by the guards, who read them to each other. Only after he asked for a meeting with various officials were his papers returned to him.

The HRC found in favour of the State Party on the article 7 issue, and stated the following on the content of article 7: ¶9.2. The Committee recalls that article 7 prohibits torture and cruel or other inhuman or degrading treatment. It observes that the assessment of what constitutes inhuman or degrading treatment falling within the meaning of article 7 depends on all the circumstances of the case, such as the duration and manner of the treatment, its physical or mental effects as well as the sex, age and state of health of the victim. A thorough examination of the present communication has not disclosed any facts in support of the author’s allegations that he is a victim of a violation of his rights set forth in article 7. In no case was severe pain or suffering, whether physical or mental, inflicted upon Antti Vuolanne by or at the instigation of a public official; nor does it appear that the solitary confinement to which the author was subjected, having regard to its strictness, duration and the end pursued, produced any adverse physical or mental effects on him. Furthermore, it has not been established that Mr. Vuolanne suffered any humiliation or that his dignity was interfered with apart from the embarrassment inherent in the disciplinary measure to which he was subjected. In this connection, the Committee expresses the view that for punishment to be degrading, the humiliation or debasement involved must exceed a particular level and must, in any event, entail other elements beyond the mere fact of deprivation of liberty. Furthermore, the Committee finds that the facts before it do not substantiate the allegation that during his detention Mr. Vuolanne was treated without humanity or without respect for the inherent dignity of the person, as required under article 10, paragraph 1, of the Covenant.

[9.30] The Vuolanne case confirms that determination of whether ‘article 7 treatment’ has occurred is in part a subjective evaluation. Factors such as the victim’s age and mental health can aggravate the effect of certain treatment so as to bring that treatment within article 7.

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[9.31] Note the HRC’s statement that ‘degrading treatment’ must entail more than ‘the mere deprivation of liberty’. However, it seems that the statement goes too far. Would the ‘mere’ detention of an extremely claustrophobic person, for no reason other than to break his or her will, breach article 7?29 [9.32] In Concluding Observations on the United States, the HRC has stated:30 ¶13. The Committee is concerned with the fact that the State party has authorized for some time the use of enhanced interrogation techniques, such as prolonged stress positions and isolation, sensory deprivation, hooding, exposure to cold or heat, sleep and dietary adjustments, 20-hour interrogations, removal of clothing and deprivation of all comfort and religious items, forced grooming, and exploitation of detainees’ individual phobias. Although the Committee welcomes the assurance that, according to the Detainee Treatment Act of 2005, such interrogation techniques are prohibited by the present Army Field Manual on Intelligence Interrogation, the Committee remains concerned that (a) the State party refuses to acknowledge that such techniques, several of which were allegedly applied, either individually or in combination, over a protracted period of time, violate the prohibition contained by article 7 of the Covenant; (b) no sentence has been pronounced against an officer, employee, member of the Armed Forces, or other agent of the United States Government for using harsh interrogation techniques that had been approved; (c) these interrogation techniques may still be authorized or used by other agencies, including intelligence agencies and ‘private contractors’; and (d) the State party has provided no information to the fact that oversight systems of such agencies have been established to ensure compliance with article 7. The State party should ensure that any revision of the Army Field Manual only provides for interrogation techniques in conformity with the international understanding of the scope of the prohibition contained in article 7 of the Covenant; the State party should also ensure that the current interrogation techniques or any revised techniques are binding on all agencies of the United States Government and any others acting on its behalf; the State party should ensure that there are effective means to follow suit against abuses committed by agencies operating outside the military structure and that appropriate sanctions be imposed on its personnel who used or approved the use of the now prohibited techniques; the State party should ensure that the right to reparation of the victims of such practices is respected; and it should inform the Committee of any revisions of the interrogation techniques approved by the Army Field Manual.

[9.33] More clues to the definition of impugned treatment under article 7 can be gleaned from the ensuing examination of the case law throughout this chapter. [9.34]

ARTICLE 16, CAT

1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with 29 30

See also Jensen v Australia (762/97) [9.72] and C v Australia (900/99) [9.73]. (2006) UN doc CCPR/C/USA/CO/3/Rev.1.

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the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.

[9.35] Therefore, no specific definitions of ‘cruel’, ‘inhuman’, or ‘degrading’ treatment have emerged under the ICCPR or CAT. The requirements of severity, intention, and purpose are presumably applied more leniently in determining whether such treatment has occurred. For example, it may be possible to negligently inflict such treatment. [9.36]

SONKO v SPAIN (CAT 368/08)

This complaint concerned actions that took place within Spanish jurisdiction in Moroccan territorial waters. Four African migrants tried to enter the Spanish autonomous city of Ceuta (on the north coast of Africa) by dinghy. They were picked up by a Spanish ship which took them back into Moroccan territorial waters. All four were told to jump into the water to swim to Morocco. The victim, who claimed he could not swim, clung to the Spanish vessel before being forced to let go. After it was clear he was drowning, one of the Spanish crewmen attempted to save him. He was taken to the beach, where he died despite attempts to revive him. The CAT Committee classified his treatment as such: ¶10.4. The Committee considers that it falls to the State party to explain the circumstances surrounding Mr. Sonko’s death, considering that he was alive when he was pulled out of the water. The Committee further considers that, regardless of whether or not the Civil Guard officers punctured Mr. Sonko’s dinghy or at what distance from the shore he was expelled from the boat, he was placed in a situation that caused his death. As for the legal classification of the way in which Mr. Sonko was treated on 26 September 2007, the Committee considers that while the subjection of Mr. Sonko to physical and mental suffering prior to his death, aggravated by his particular vulnerability as a migrant, does not constitute a violation of article 1 of the Convention, it does exceed the threshold of cruel, inhuman or degrading treatment or punishment, under the terms of article 16 of the Convention.

Sometimes, even actions which end up causing a person’s death might not amount to torture. Of course it may be noted that the intended outcome of the actions was not death. [9.37]

KEREMEDCHIEV v BULGARIA (CAT 257/04)

The complainant made the following allegations of police brutality: ¶2.1. In the Winter of 2003, the complainant worked in the ‘Hizhata’ restaurant, located on Snezhanka Peak, in the ski resort of Pamporovo, Bulgaria. On the evening of 3 February 2003, he went to a bar in Pamporovo with some friends. On the way home at around 6am the next morning, he decided to wait in the lobby of the Hotel ‘Murgavets’, for the first chair lift at 8.00am to return to his residence at Snezhanka Peak. He fell asleep in the hotel lobby and was woken up by someone kicking him. The individual, unknown to the complainant, tried to force him to leave the hotel. The complainant explained why he was waiting there and that he was only staying for another hour. Later, the same individual, accompanied by another man, again tried to make the complainant leave the lobby.

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¶2.2. Shortly afterwards, two police officers arrived and shouted at the complainant, handcuffed him, and asked him to present his identity card. The police officers then took him out of the hotel; he was kicked ‘once or twice’. The complainant asked the police officers to stop kicking him, but he was pushed and fell to the ground. He began calling for help, and was ordered to stop; as he did not obey, he was kicked and beaten with a truncheon, until he fainted. He woke up in a patrol car, with handcuffs and shackles on his legs. He was assaulted again in the car and one of the police officers allegedly attempted to strangle him at which point he again lost consciousness. He was taken out of the car and was threatened with being shot. He woke up in a cell of the Regional Police Directorate of Chepelare; he asked for a doctor who arrived two hours later. The complainant asked him to unchain him and to give him some medication, but he said that he was only there to do an alcohol test. The complainant was later charged with hooliganism, which he claims was initiated following a threat to the police officers who mistreated him that he would sue them for their actions.

He added in later submissions that medical examinations contained ‘evidence of a large number of injuries, as well as bruising to his kidneys and blood in his urine’.31 The CAT Committee found a breach of article 16: ¶9.3. From a review of the medical reports themselves, the Committee observes that the complainant suffered multiple bruising on various external parts of his body, to the extent that the injuries inflicted caused bruising to his kidneys and blood in his urine. In addition, the forensic medical report, of 12 July 2003, ordered by the State party’s authorities themselves for the purposes of the investigation, attests to the injuries described in the two earlier medical reports and gives the view that these injuries could have arisen at the time of and in the manner described by the complainant. It also observes that the medical reports themselves do not refer to a ‘slight physical injury’ but that this is the domestic court’s interpretation. While recognizing that pain and suffering may arise from a lawful arrest of an uncooperative and/or violent individual, the Committee considers that the use of force in such circumstances should be limited to what is necessary and proportionate. The State party argues that the force used was ‘necessary’, and states that the complainant had to be handcuffed, however it does not describe the type of force used nor say whether and/or how it was proportionate, i.e how the intensity of the force used was necessary in the particular circumstances of the case. The Committee considers the complainant’s injuries too great to correspond to the use of proportionate force by two police officers, particularly as it would appear that the complainant was unarmed. It cannot agree with the domestic courts’ interpretation that the complainant suffered from a ‘slight physical injury’, as a result of the force inflicted upon him. While noting, on the basis of the evidence provided, that the injuries inflicted do not appear to amount to ‘severe pain and suffering’, within the meaning of article 1, paragraph 1, it does consider that the treatment of the complainant by the police officials amounts to acts of cruel, inhuman or degrading treatment or punishment within the terms of article 16 of the Convention.

[9.38] In its rendition case of Agiza v Sweden (CAT 233/03), the following was alleged to have occurred to the complainant in the process of his expulsion:

31

At para 8.

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¶12.29. Immediately after the Government’s decision in the afternoon of December 18, the expellees were apprehended by Swedish police and subsequently transported to Bromma airport. The American aircraft landed shortly before 9.00 p.m. A number of American security personnel, wearing masks, conducted the security check, which consisted of at least the following elements. The expellees had their clothes cut up and removed with a pair of scissors, their bodies were searched, their hands and feet were fettered, they were dressed in overalls and their heads were covered with loosely fitted hoods. Finally, they were taken, with bare feet, to the airplane where they were strapped to mattresses. They were kept in this position during the entire flight to Egypt. It had [also] been alleged that the expellees were also given a sedative per rectum . . .

Indeed, this is the same treatment as described in Alzery v Sweden (1416/05) before the HRC [9.13]. The identical allegations are not surprising as both men were rendered at the same time by Sweden to Egypt with the assistance of US agents. The CAT Committee found that this treatment breached, ‘at least’, article 16.32 [9.39] In Dzemajl et al v Yugoslavia (CAT 161/00) [9.12], the majority of the CAT Committee found that the deliberate burning and destruction of houses, especially when conducted with a racist motive, constituted ‘acts of cruel, inhuman or degrading treatment or punishment’ contrary to article 16 CAT.33 In Osmani v Republic of Serbia (CAT 261/05), the CAT Committee found that the following treatment, which took place during the eviction of a Roma settlement, breached article 16:34 ¶2.1. In the course of the eviction, the plainclothes policemen hit a number of the Roma while the uniformed policemen abused them with racist language. The complainant was twice slapped and hit with fists in the head and in the kidneys by a plainclothes officer who was gripping the complainant’s left arm, while the latter was holding his 4 year old son with the right arm. The child was also hit but did not sustain serious injury. The complainant fled the settlement and sought medical treatment for his injuries. The medical certificates of 12 June 2000 stated that he had a haematoma under his left arm and he was advised to see a specialist for an examination of his abdomen.

The Dzemajl and Osmani cases also confirm that States can commit breaches of CAT, and also article 7, by failing to act as well as by committing certain acts [9.08]. RESTRICTIONS ON ARTICLE 7 RIGHTS

[9.40] Article 7 is expressed in absolute terms and brooks no exceptions. GENERAL COMMENT 20 ¶3. The text of article 7 allows of no limitation. The Committee also reaffirms that, even in situations of public emergency such as those referred to in article 4 of the Covenant, no derogation from the provision of article 7 is allowed and its provisions must remain in force. The Committee likewise observes that no justification or extenuating circumstances 32

At para 13.4. See also Concluding Observations on Israel (2003) CCPR/CO/78/ISR, para 16, where the demolition of the property of families of suspected terrorists in the Occupied Territories was characterized as a breach of art 7. 34 The actual finding of violation is at para 10.5. 33

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may be invoked to excuse a violation of article 7 for any reasons, including those based on an order from a superior officer or public authority.

This is reaffirmed in article 2 CAT, with respect to ‘torture’: ARTICLE 2, CAT 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

[9.41]

CAT GENERAL COMMENT 2

¶5. Article 2, paragraph 2, provides that the prohibition against torture is absolute and nonderogable. It emphasizes that no exceptional circumstances whatsoever may be invoked by a State Party to justify acts of torture in any territory under its jurisdiction. The Convention identifies as among such circumstances a state of war or threat thereof, internal political instability or any other public emergency. This includes any threat of terrorist acts or violent crime as well as armed conflict, international or non-international. The Committee is deeply concerned at and rejects absolutely any efforts by States to justify torture and ill-treatment as a means to protect public safety or avert emergencies in these and all other situations. Similarly, it rejects any religious or traditional justification that would violate this absolute prohibition. The Committee considers that amnesties or other impediments which preclude or indicate unwillingness to provide prompt and fair prosecution and punishment of perpetrators of torture or ill-treatment violate the principle of non-derogability.35

[9.42] Therefore, it appears that notions such as proportionality have no relevance when considering whether violations of article 7 or CAT have occurred. For example, in Israel, the use of ‘moderate physical and psychological pressure’ in interrogating suspected terrorists was authorised. In 1997, Israel claimed that the use of these techniques had thwarted 90 planned terrorist attacks, saving countless lives.36 The CAT Committee nevertheless classified some of these interrogation techniques as ‘torture’ as well as ‘inhuman and degrading treatment’ in Concluding Observations regarding Israel in 1997. The techniques were held to breach CAT, even though they were designed to protect the population from a particularly deadly terrorist threat. The CAT Committee stated:37

35 See also the CAT Committee’s statement on 11 September 2001, at UN doc A/57/44, paras 17–18. 36 See Israel’s Second Periodic Report under the Convention Against Torture, CAT/C/33/Add.2/ Rev.1, especially paras 2–3 and 24. 37 UN doc CAT/C/18/CRP1/Add.4. The actual techniques used were classified so the CAT Committee relied on reports from non-government organizations. The techniques reported were: restraining in painful positions; hooding; sounding of loud music for prolonged periods; prolonged sleep deprivation; threats (including death threats); violent shaking; and using ‘cold air to chill’. Compare Ireland v UK (1979–80) 2 EHRR 25. See also Concluding Observations on Israel (1999) UN doc CCPR/C/79/ Add.93, para 19.

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¶134. The Committee acknowledges the terrible dilemma that Israel confronts in dealing with terrorist threats to its security, but as a State party to the Convention Israel is precluded from raising before this Committee exceptional circumstances as justification for acts prohibited by article 1 of the Convention. This is plainly expressed in article 2 of the Convention.38

Regarding Israel, the HRC has criticized the fact that ‘all complaints of torture are either denied factually, or justified under ‘the defence of necessity’ as ‘ticking time bomb’ cases, before reiterating that article 7 rights are absolute.39 [9.43] Proportionality does, however, play a role in determination of violations of article 7 ICCPR. For example, amputation of a limb in many circumstances would breach article 7. However, amputation of a limb does not per se constitute article 7 treatment. Amputation would not breach article 7 if it was done to save a person’s life (eg to stop the spread of gangrene). Therefore, the ‘reasonableness’ of the decision to perform a certain act, even if it causes considerable pain, suffering, or indignity, may be relevant in deciding whether certain treatment is in fact article 7 treatment.40 Once a certain act is found to constitute article 7 treatment, however, no justification can be raised to prevent a finding of violation. Proportionality is therefore relevant when considering the appropriate classification of the act as article 7 treatment, rather than in considering any alleged justification for engaging in article 7 treatment. [9.44]

VS v RUSSIAN FEDERATION (1627/07)

This communication concerned the treatment of a person charged with bribery. The initial arrest was described as follows by the author, which he claimed was in breach of article 7: ¶2.1. The author works as a therapist in Samara, Russian Federation. He claims that, on 21 March 2002, a group of officers of the police department of Samara District Department of Internal Affairs (DDIA) brutally beat him in front of his colleagues and patients at his workplace. They punched him in the face, strangled him, twisted his arms behind his back and demanded him to confess to having taken a bribe.

The State party explained itself thus: ¶6.1. . . . It refutes the author’s allegations of ill-treatment by police and notes that the forensic medical report invoked by the author refers to the following injuries: bruises on the face area and on the right forearm; abrasions on the right side of the neck; hemorrhages and wounds on the mucous membranes of both cheeks. Since during his arrest the author tried to swallow the money received as bribe, he did not react to the instructions given by police and showed resistance, police officers used force by holding his hands and pressing 38 The Israeli Supreme Court sitting as the High Court of Justice found that such treatment of terrorist suspects was unconstitutional in The Public Committee Against Torture in Israel v The Government of Israel et al (HCJ 5100/94), decision of 6 September 1999. 39 Concluding Observations on Israel (2010) UN doc CCPR/C/ISR/CO/3, para 11. 40 In this respect, note that while ‘purpose’ is an element of the definition of ‘torture’ [9.09], it does not appear to be an element of the definitions of other art 7 treatment. This is intimated by the HRC in General Comment 20, para 4 [9.25].

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his cheekbones in order to prevent him from swallowing the money. Physical force was used within the limits necessary for suppression of a crime, and in compliance with articles 12 and 13 of the Law on Police.

The HRC found the complaint inadmissible: ¶8.3. The Committee takes note of the author’s allegations of ill-treatment upon arrest, as documented by the forensic medical report dated 23 March 2002. It also notes that the State party refutes the allegations, stating that the use of force was proportional and necessary to prevent the author from tampering with evidence (swallow the money received as bribe). The Committee further notes that the author’s complaint against the police officers was rejected for lack of corpus delicti, the decision being upheld on cassation and supervisory review proceedings. While noting that the versions of events advanced by the parties differ substantially, the Committee observes that the use of force as such is not contested by the State party. ¶8.4. The Committee observes that the forensic medical report adduced by the author documents bruises on his face and right forearm, abrasions on the right side of his neck, hemorrhages and wounds on the mucous membranes of both cheeks which resulted in light damage. It further takes note of the explanations of the State party that police officers used force by holding the author’s hands and pressing his cheekbones in order to prevent him from swallowing the money he received as a bribe. Taking into account the arguments of the State party to justify the degree of force used during the arrest operation and given the contradictory information contained in the file as to the existence of witness testimonies on the facts alleged under this claim, the Committee concludes that the author failed to substantiate this claim, for purposes of admissibility, and declares it inadmissible under article 2 of the Optional Protocol.

[9.45] Another example of such reasoning arose in Cabal and Pasini Bertran v Australia (1020/02): ¶8.2. With respect to the claim that the State party violated articles 7 and 10, paragraph 1, because of prison conditions and the treatment to which the authors were subjected, the Committee notes that the allegations of shackling the authors with 12 link shackles, subsequently replaced by 17 link ones during transport to and from prison, are factually uncontested by the State party. However, the State party has provided justification for the treatment in question, explaining that the assessment of the authors’ flight risk was made because they had in the past evaded arrest through the use of false travel and identity documents, that they had access to considerable financial resources; had made payments to other prisoners, and that prison intelligence had reported incidents of other prisoners offering to assist any escape in return for financial payment. Also, the State party has explained that the authors were not singled out for searches [including strip searches and cavity inspections] and that the searches were carried out in a manner designed to minimise embarrassment to them, and were carried out only to ensure the safety and security of the prison. In the assessment of the Committee, there has been no violation of article 7 or article 10, paragraph 1, in these respects.

[9.46] In Mukong v Cameroon (458/91), the State Party attempted to justify appalling prison conditions on the basis of economic and budgetary problems caused by Cameroon’s underdevelopment; the HRC nevertheless found that the conditions of Mukong’s incarceration breached article 7.41 41 See [9.132]. Indeed, economic circumstances do not generally justify digressions from Covenant norms: see [1.33].

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[9.47] In Keremedchiev v Bulgaria (CAT 257/04), the CAT Committee concedes that ‘pain and suffering may arise from a lawful arrest of an uncooperative and/or violent individual’ [9.37]. It cautions that ‘the use of force in such circumstances should be limited to what is necessary and proportionate’.42 The CAT Committee is conceding that treatment, at least which may objectively violate article 16 if not article 1, may be excused if it is a necessary use of force exercised for a legitimate purpose. Similarly, a violation of article 7 was found in Benitez v Paraguay (1829/08) due to the ‘disproportionate’ use of force entailed in the arrest of a protester.43 As is suggested above, the context in which treatment takes place plays a role in deciding on whether an act is classified as a violation of article 7 (or 16 CAT), rather than on whether a prima facie violation of article 7 (or 16) is justified. In Benitez and Keremedchiev, the level of force used to constrain the complainant was not justified, so breaches, respectively, of article 7 ICCPR and article 16 CAT were found. [9.48] Regarding the use of force by police, the HRC has stated to Australia:44 ¶21. The Committee expresses concern at reports of excessive use of force by law enforcement officials against groups, such as indigenous people, racial minorities, persons with disabilities, as well as young people; and regrets that the investigations of allegations of police misconduct are carried out by the police itself. The Committee is concerned by reports of the excessive use of the electro-muscular disruption devices (EMDs) ‘tasers’ by police forces in certain Australian states and territories (arts. 6 and 7). SPECIFIC VIOLATIONS OF ARTICLE 7 AND THE CONVENTION AGAINST TORTURE

[9.49] In numerous early cases against Latin American States, the HRC found various combinations of the following acts to constitute torture:45 systematic beatings, electroshocks, burns, extended hanging from hand and/or leg chains, repeated immersions in a mixture of blood, urine, vomit, and excrement (‘submarino’), standing for great lengths, simulated executions, and amputations.46 In Muteba v Zaire (124/82), Miango Muiyo v Zaire (194/85), and Kanana v Zaire (366/89), the HRC 42 At para 9.3. See also Concluding Observations on Norway (2011) CCPR/C/NOR/CO/6, regarding the use of force upon psychiatric patients. 43 At para 7.4. 44 (2009) UN doc CCPR/C/AUS/CO/5. See also Concluding Observations on New Zealand (2010) UN doc CCPR/C/NZL/CO/5, para 10; Belgium (2010) UN doc CCPR/C/BEL/CO/5, para 13 (regarding the use of tasers). 45 See also the treatment described in Domukovsky et al v Georgia (623–624, 626, 627/95), para 18.6, which was described as both ‘torture and inhuman treatment’ (severe beatings and physical and moral pressure, including infliction of concussion, broken bones, burning and wounding, scarring, threats to family). 46 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 162, citing Grille Motta v Uruguay (11/77), López Burgos v Uruguay (52/79), Sendic v Uruguay (63/79), Angel Estrella v Uruguay (74/80), Arzuago Gilboa v Uruguay (147/83), Cariboni v Uruguay (159/83), Berterretche Acosta v Uruguay (162/83), Herrera Rubio v Colombia (161/83), Lafuente Peñarrieta v Bolivia (176/84). See also PR Ghandhi, ‘The Human Rights Committee and Articles 7 and 10(1) of the International Covenant on Civil and Political Rights, 1966’ (1990) 13 Dalhousie Law Journal 758, 762–6.

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found that various combinations of the following acts constituted torture: beatings, electric shocks to the genitals, mock executions, deprivation of food and water, and thumb presses.47 As noted above, a specific finding of torture arose in Giri v Nepal (1761/08) [9.26]. [9.50] In Linton v Jamaica (255/87), the author was beaten unconscious, subjected to a mock execution, and denied appropriate medical care. In Bailey v Jamaica (334/1988), the author, a prisoner, was beaten repeatedly with clubs, iron pipes, and batons, and then left without any medical attention for injuries to his head and hands. In Hylton v Jamaica (407/90), the author, a prisoner, was severely beaten by, and received repeated death threats from, prison warders. In Deidrick v Jamaica (619/95), the author was locked up in his cell 23 hours a day, without mattress or bedding, integral sanitation, natural light, recreational facilities, decent food, or adequate medical care.48 In all cases, the HRC decided that the treatment was ‘cruel and inhuman’. [9.51] In Francis v Jamaica (320/88), the HRC found that the author had been ‘assaulted by soldiers and warders, who beat him, pushed him with a bayonet, emptied a urine bucket over his head, threw his food and water on the floor and his mattress out of the cell’.49 In Thomas v Jamaica (321/1988), the HRC found that the author had been beaten with rifle butts and was refused medical treatment for consequent injuries.50 In Young v Jamaica (615/95), the author had been detained in a tiny cell, allowed few visitors, assaulted by prison warders, had his effects stolen and his bed repeatedly soaked.51 In Polay Campos v Peru (577/94), the author was displayed to the press in a cage.52 In all four cases, the impugned treatment constituted ‘degrading treatment within the meaning of article 7’. Furthermore, in Concluding Observations on Benin, the HRC has stated:53 ¶21. The Committee is of the view that the requirement that pre-trial detainees and convicts must wear jackets indicating their place of detention constitutes degrading treatment, and that the requirement that pre-trial detainees must wear such jackets during their trial may infringe the principle of presumption of innocence (articles 7 and 14 [14.110] of the Covenant).

[9.52] In most article 7 cases, the HRC has found violations of article 7 without specifying the limb of article 7 that was breached. For example, in White v Madagascar (115/82), ten months’ detention incommunicado including solitary confinement chained to a bed spring for three-and-a-half months with minimal clothing and severe food rations, followed by a further month’s detention incommunicado in a tiny cell, followed by detention with another in a three by three metre cell without external access for 18 months breached article 7.54 In Cañón García v Ecuador (319/1988), the HRC found that the rubbing of salt water into Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 131. 49 At para 9.3. At para 12.4. 50 51 At para 9.2. At paras 3.6, 5.2. 52 53 At para 8.5. (2004) UN doc CCPR/CO/82/BEN. 54 At paras 15.2, 17. 47 48

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the author’s nasal passages and a night spent handcuffed to a chair ‘without being given as much as a glass of water’ constituted a breach of article 7.55 In Henry v Trinidad and Tobago (752/97), the author was beaten so severely on the head by prison officers that he required several stitches;56 this action breached article 7.57 Being ‘blindfold and dunked in a canal’ by soldiers breached article 7 in Vicente et al v Colombia (612/95).58 In Concluding Observations on Poland, ritual abuse and humiliation of new army recruits was also described as a breach of article 7.59 In Concluding Observations on Rwanda, life imprisonment in solitary confinement was deemed a breach of article 7.60 Electro-shock therapy in psychiatric institutions, unless carefully monitored and reported, also raises issues under article 7.61 Forced sexual ‘reorientation’ treatment for transsexual women in Ecuador raised article 7 issues too.62 [9.53] It is instructive to note the cases where violations of article 10(1) have been found rather than violations of article 7. These cases describe treatment which is bad enough to breach article 10, but implicitly not so bad as to constitute ‘article 7 treatment’. Evidentiary Requirements [9.54] Many article 7 cases have turned on questions of fact rather than law. The HRC in such cases had to consider only whether there was enough evidence that certain acts had occurred, rather than whether the alleged acts breached article 7. This is because numerous cases have raised allegations of acts that are so atrocious that they undoubtedly breach article 7. [9.55]

MUKONG v CAMEROON (458/91)

This case contains some useful statements on the evidential requirements for an article 7 complaint: ¶9.1. The author has contended that the conditions of his detention in 1988 and 1990 amount to a violation of article 7, in particular because of insalubrious conditions of detention facilities, overcrowding of a cell at the First Police District of Yaoundé, deprivation of food and of clothing, and death threats and incommunicado detention at the Camp of the Brigade Mobile Mixte in Douala. The State party has replied that the burden of proof for these allegations lies with the author, and that as far as conditions of detention are concerned, they are a factor of the underdevelopment of Cameroon.

55

56 At para 5.2. At para 2.1. 58 At para 7.1. At para 8.5. 59 (1999) UN doc CCPR/C/79/Add.110, para 15. See also concern over the practice of ‘hazing’ of new recruits in Concluding Observations on the Ukraine (2006) UN doc CCPR/C/UKR/CO/6, para 13. 60 (2009) UN doc CCPR/C/RWA/CO/3, para 14. 61 Concluding Observations on Sweden (2009) UN doc CCPR/C/SWE/CO/6, para 11. See also Concluding Observations on Bulgaria (2011) CCPR/C/BGR/CO/3, para 10, concerning the treatment of people in medical institutional settings. 62 Concluding Observations on Ecuador (2009) UN doc CCPR/C/ECU/CO/5, para 12. 57

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¶9.2. The Committee does not accept the State party’s views. As it has held on previous occasions, the burden of proof cannot rest alone with the author of a communication, especially considering that the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to the relevant information (See Views on communication No. 30/1978 (Bleier v Uruguay), adopted on 29 March 1982, paragraph 13.3.). Mr. Mukong has provided detailed information about the treatment he was subjected to; in the circumstances, it was incumbent upon the State party to refute the allegations in detail, rather than shifting the burden of proof to the author.

[9.56]

BAILEY v JAMAICA (709/96)

This case concerned allegations under article 10(1) rather than article 7. However, one may assume that the evidential requirements are similar. In this case, the HRC majority found that the author had failed, for the purposes of admissibility, to substantiate his claims that he was being detained in inhuman conditions at St Catherine’s District Prison, Jamaica. A minority view, signed by Mrs Evatt, Mrs Gaitán de Pombo, Mrs Medina Quiroga, and Mr Yalden, was more generous to the author: . . . The author has not given specific details of this claim, other than to refer in his submission to a report from Amnesty International based on a 1993 visit and a report called Prison Conditions in Jamaica, 1990. These reports, which are not annexed, cover a period during which the author was held at St Catherine’s District Prison. Having regard to the Committee’s earlier views in which it has found the conditions on death row in St Catherine’s District Prison to violate article 10(1) of the Covenant,63 and to the failure of the State party to respond to the author’s allegations, I am of the view that the author’s claim under article 10(1) is sufficiently substantiated for the purpose of admissibility and to support a finding of a violation of this provision.

The majority’s hard line on evidence in Bailey was foreshadowed in earlier dissents by Mr Ando in Morgan and Williams v Jamaica (720/96) and Yasseen and Thomas v Republic of Guyana (676/96). Ando, and now the HRC majority, seem less willing to infer violations of article 7 or 10(1) from NGO evidence, in the absence of specific evidence of individual suffering by the authors. The minority view in Bailey, which accepts that certain prison conditions are so appalling that they surely ‘affect’ the author individually, is to be preferred. The Rights of Women and other Vulnerable People under Article 7 [9.57]

GENERAL COMMENT 28

¶11. To assess compliance with article 7 of the Covenant, as well as with article 24, which mandates special protection for children, the Committee needs to be provided information on national laws and practice with regard to domestic and other types of violence against women,64 including rape. It also needs to know whether the State party gives access to safe abortion to women who have become pregnant as a result of rape.65 The States parties See eg McTaggart v Jamaica (749/97), paras 8.5–8.6, and other Jamaican cases cited below at n 201. See also AT v Hungary (CEDAW 2/03) and [23.107]. See also Concluding Observations on Madagascar (2007) UN doc CCPR/C/MDG/CO/3, para 11. 65 See also, on abortion, [8.90]ff. 63

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should also provide the Committee information on measures to prevent forced abortion or forced sterilization. In States parties where the practice of genital mutilation exists information on its extent and on measures to eliminate it should be provided. The information provided by States parties on all these issues should include measures of protection, including legal remedies, for women whose rights under article 7 have been violated.66

[9.58]

LLANTOY- HUAMÁN v PERU (1153/03)

This case concerned the denial of an abortion to a 17-year-old girl, in circumstances where the foetus was diagnosed as anencephalic. This means that the baby would die within a short time of birth, and that carriage of the foetus posed a threat to the mental and physical health of the mother. She was nevertheless denied a therapeutic abortion by State authorities. The HRC found a breach of article 7: ¶6.3. The author . . . claims that, owing to the refusal of the medical authorities to carry out the therapeutic abortion, she had to endure the distress of seeing her daughter’s marked deformities and knowing that she would die very soon. This was an experience which added further pain and distress to that which she had already borne during the period when she was obliged to continue with the pregnancy. The author attaches a psychiatric certificate dated 20 August 2001, which confirms the state of deep depression into which she fell and the severe consequences this caused, taking her age into account. The Committee notes that this situation could have been foreseen, since a hospital doctor had diagnosed anencephaly in the foetus, yet the hospital director refused termination. The omission on the part of the State in not enabling the author to benefit from a therapeutic abortion was, in the Committee’s view, the cause of the suffering she experienced. The Committee has pointed out in its General Comment No. 20 that the right set out in article 7 of the Covenant relates not only to physical pain but also to mental suffering, and that the protection is particularly important in the case of minors. In the absence of any information from the State party in this regard, due weight must be given to the author’s complaints. Consequently, the Committee considers that the facts before it reveal a violation of article 7 of the Covenant.

[9.59]

LMR v ARGENTINA (1608/07)

The author submitted the case on behalf of her daughter. Her daughter was 20 years old but had a much lower mental age, and was pregnant as the result of a rape. The daughter was unable to procure a legal abortion due to the interference of State authorities, and ultimately had an illegal abortion. The HRC found a violation of article 7: ¶9.2. The Committee takes note of the author’s allegation that forcing her daughter to continue her pregnancy, even though she should have enjoyed protection under article 86.2 of the Criminal Code, constituted cruel and inhuman treatment. The State party asserts that, while forcing her to endure a pregnancy resulting from rape and undergo an illegal abortion could have been a contributing factor to the mental injury that the victim suffered, it did not constitute torture. The Committee considers that the State party’s omission, in failing to guarantee L.M.R.’s right to a termination of pregnancy, as provided under article 86.2 of the Criminal Code, when her family so requested, caused L.M.R. physical and mental 66

See also General Comment 2, paras 22–3.

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suffering constituting a violation of article 7 of the Covenant that was made especially serious by the victim’s status as a young girl with a disability. In this connection the Committee recalls its general comment No. 20 in which it states that the right protected in article 7 of the Covenant relates not only to acts that cause physical pain but also to acts that cause mental suffering.

[9.60]

LNP v ARGENTINA (1610/07)

The author made the following complaint about her treatment, as a young indigenous girl, by authorities after she had made a complaint against three men of rape: ¶3.2. The author maintains that, because she was a girl and because of her ethnicity, she was a victim of discrimination on police premises, during the medical examination to which she was subjected and throughout the trial. She asserts that she had to wait for several hours standing up and in tears before anyone attended to her at the police station. When she was in the medical centre, where she was also kept waiting for several hours, she was subjected to palpations in the injured parts of her body without consideration for the intense pain that this caused her and purely in order to check whether the experience was really painful. She was also subjected to a vaginal examination to check her virginity, despite the fact that the attack she had suffered required an anal examination only. The court that heard the case introduced the virginity of the victim as a decisive factor in the trial. According to the author, unlike her, the accused youths spoke freely, giving a crude account of the facts, without denying carnal intrusion but asserting that she was a prostitute—a fact which was never proved and which was discredited by the report that was submitted on her social environment—and the court immediately took their side. She maintains that all the witnesses were asked if the author had a boyfriend and if she worked as a prostitute. According to the author, the court took no account of the fact that she had to express herself in a language that was not her own while in a state of profound distress when it found inaccuracies and discrepancies in her statement and invalidated it, while at the same time overlooking the inaccuracies and contradictions in the statements of the accused. The author concludes that the trial was flawed by gender bias that favoured impunity.

The HRC found that the treatment entailed a breach of article 7: ¶13.6. Regarding the author’s affirmations concerning the physical and mental suffering that she endured, the Committee considers that the treatment she received in the police station and in the medical centre just after being assaulted, as well as during the court proceedings, when many discriminatory statements were made against her, contributed to her re-victimization, which was aggravated by the fact that she was a minor. The Committee recalls that, as pointed out in its general comment No. 20 and its jurisprudence, the right protected by article 7 covers not only physical pain but also mental suffering. The Committee concludes that the author was the victim of treatment of a nature that is in breach of article 7 of the Covenant.67

[9.61] Both the HRC and the CAT Committee have decided a number of cases where it has found that women cannot be returned to a country where she faces gender-based torture.

67

See also Concluding Observations on Japan (2008) UN doc CCPR/C/JPN/CO/5, para 14.

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The author claimed asylum in Canada on her own behalf and that of her daughter. She claimed that she faced torture, and that her daughter faced the danger of female genital mutilation, if they were returned to Guinea. The State had denied the claims as it found the mother to lack credibility. Indeed, she had forged some of the information she presented in her asylum application. The HRC agreed that the article 7 regarding the mother was inadmissible as she had failed to demonstrate that she faced particular danger if deported to Guinea. Regarding the daughter, however, the HRC found a violation should deportation take place: ¶10.1. . . . [T]here is no question that subjecting a woman to genital mutilation amounts to treatment prohibited under article 7 of the Covenant. Nor is there any question that women in Guinea traditionally have been subjected to genital mutilation and to a certain extent are still subjected to it. At issue is whether the author’s daughter runs a real and personal risk of being subjected to such treatment if she returns to Guinea. ¶10.2. The Committee notes that in Guinea female genital mutilation is prohibited by law. However, this legal prohibition is not complied with. The following points should be noted: (a) genital mutilation is a common and widespread practice in the country, particularly among women of the Malinke ethnic group; (b) those who practise female genital mutilation do so with impunity; (c) in the case of Fatoumata Kaba, her mother appears to be the only person opposed to this practice being carried out, unlike the family of Fatoumata’s father, given the context of a strictly patriarchal society; (d) the documentation presented by the author, which has not been disputed by the State party, reveals a high incidence of female genital mutilation in Guinea; (e) the girl is only 15 years old at the time the Committee is making its decision. Although the risk of excision decreases with age, the Committee is of the view that the context and particular circumstances of the case at hand demonstrate a real risk of Fatoumata Kaba being subjected to genital mutilation if she was returned to Guinea. ¶10.3. Consequently, in accordance with article 5, paragraph 4, of the Optional Protocol, the Committee is of the view that Fatoumata Kaba’s deportation to Guinea would constitute a violation of article 7 and article 24, paragraph 1, of the Covenant, read in conjunction.

Therefore, the HRC clearly found that female genital mutilation was a breach of article 7.68 The possibility of a girl’s exposure to the practice meant that Canada could not deport her to Guinea without breaching article 7. The outcome of this case could possibly have led to the curious situation of the mother being deported while the daughter was not. It seems likely, however, that such a situation did not eventuate, and would have breached family rights under articles 17, 23, and 24 if it had. [9.63]

AS v SWEDEN (CAT 149/99)

¶8.4. From the information submitted by the author, the Committee notes that she is the widow of a martyr and as such supported and supervised by the Bonyad-e Shahid 68 Indeed, it has done so in many Concluding Observations, including Concluding Observations on Tanzania (2009) UN doc CCPR/C/TZA/CO/4, para 11; Cameroon, (2010) UN doc CCPR/C/CMR/ CO/4, para 10; Ethiopia (2011) UN doc CCPR/C/ETH/CO/1, para 10. See also [1.131] and [8.43].

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Committee of Martyrs. It is also noted that the author claims that she was forced into a sighe or mutah marriage and to have committed and been sentenced to stoning for adultery. Although treating the recent testimony of the author’s son, seeking asylum in Denmark, with utmost caution, the Committee is nevertheless of the view that the information given further corroborates the account given by the author. . . . ¶9. Considering that the author’s account of events is consistent with the Committee’s knowledge about the present human rights situation in Iran, and that the author has given plausible explanations for her failure or inability to provide certain details which might have been of relevance to the case, the Committee is of the view that, in the prevailing circumstances, the State party has an obligation, in accordance with article 3 of the Convention, to refrain from forcibly returning the author to Iran or to any other country where she runs a risk of being expelled or returned to Iran.

[9.64]

VL v SWITZERLAND (CAT 262/05)

The complainant and her husband sought asylum in Switzerland from Belarus. The asylum application was managed by her husband and contained falsified documents. The complainant belatedly claimed that she had been raped by police in Belarus, and feared for her safety upon return. Her asylum claim was deemed by Swiss authorities not to be credible as it had not been made earlier. The CAT Committee found that her return to Belarus would breach article 3: ¶8.8. The State party has argued that the complainant is not credible because the allegations of sexual abuse and the medical report supporting these allegations were submitted late in the domestic proceedings. The Committee finds, to the contrary, that the complainant’s allegations are credible. The complainant’s explanation of the delay in mentioning the rapes to the national authorities is totally reasonable. It is well-known that the loss of privacy and prospect of humiliation based on revelation alone of the acts concerned may cause both women and men to withhold the fact that they have been subject to rape and/or other forms of sexual abuse until it appears absolutely necessary. Particularly for women, there is the additional fear of shaming and rejection by their partner or family members. Here the complainant’s allegation that her husband reacted to the complainant’s admission of rape by humiliating her and forbidding her to mention it in their asylum proceedings adds credibility to her claim. The Committee notes that as soon as her husband left her, the complainant who was then freed from his influence immediately mentioned the rapes to the national authorities in her request for revision of 11 October 2004. Further evidence of her psychological state or psychological ‘obstacles,’ as called for by the State party, is unnecessary. The State party’s assertion that the complainant should have raised and substantiated the issue of sexual abuse earlier in the revision proceedings is insufficient basis upon which to find that her allegations of sexual abuse lack credibility, particularly in view of the fact that she was not represented in the proceedings. . . . ¶8.10. In assessing the risk of torture in the present case, the Committee considers that the complainant was clearly under the physical control of the police even though the acts concerned were perpetrated outside formal detention facilities. The acts concerned, constituting among others multiple rapes, surely constitute infliction of severe pain and suffering perpetrated for a number of impermissible purposes, including interrogation, intimidation, punishment, retaliation, humiliation and discrimination based on gender. Therefore, the Committee believes that the sexual abuse by the police in this case constitutes torture even

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though it was perpetrated outside formal detention facilities. Moreover, the authorities in Belarus appear to have failed to investigate, prosecute and punish the police for such acts. This failure to act increases the risk of ill-treatment upon the complainant’s return to Belarus, since the perpetrators of the rapes have never been investigated and can mistreat the complainant again in all impunity. There is thus substantial doubt, based on the particular facts of this case, as to whether the authorities in Belarus will take the necessary measures to protect the complainant from further harm. ¶8.11 In the circumstances, the Committee considers that substantial grounds exist for believing that the complainant may risk being subjected to torture if returned to Belarus.

[9.65]

NJAMBA and BALIKOSA v SWEDEN (CAT 322/07)

The complainant claimed that the return of herself and her daughter to the Democratic Republic of the Congo would breach article 3 because they could foreseeably be subjected to sexual violence. The CAT Committee agreed: ¶9.5. . . . [T]he Committee observes that the most relevant issues raised in this communication relate to the legal effect that should be given to undisputed facts, such as the risk of danger to the complainants’ security upon return. The Committee notes that the State party itself acknowledges that sexual violence occurs in Equateur Province, to a larger extent in rural villages. . . . It notes that since the State party’s last response of 19 March 2010, relating to the general human rights situation in the Democratic Republic of the Congo, a second joint report from seven United Nations experts on the situation in the Democratic Republic of the Congo was published, which refers to alarming levels of violence against women across the country and concludes that, ‘Violence against women, in particular rape and gang rape committed by men with guns and civilians, remains a serious concern, including in areas not affected by armed conflict.’ In addition, a second report of the United Nations High Commissioner for Human Rights on the situation of human rights and the activities of her Office in the Democratic Republic of the Congo as well as other UN reports, also refers to the alarming number of cases of sexual violence throughout the country, confirming that these cases are not limited to areas of armed conflict but are happening throughout the country. . . . Thus, in light of all of the abovementioned information, the Committee considers that the conflict situation in the Democratic Republic of the Congo, as attested to in all recent United Nation reports, makes it impossible for the Committee to identify particular areas of the country which could be considered safe for the complainants in their current and evolving situation. ¶9.6. Accordingly, the Committee finds that, on a balance of all of the factors in this particular case and assessing the legal consequences aligned to these factors, substantial grounds exist for believing that the complainants are in danger of being subjected to torture if returned to the Democratic Republic of the Congo.

The CAT Committee’s decision seems to have wide ramifications for women fleeing the DRC, as the CAT Committee did not find that there was a particular danger that the complaints would be targeted. Rather, it seemed to find that women were generally in danger of sexual violence in the DRC, citing many UN reports on the DRC in support of this contention. This decision certainly seems less influenced by the personal circumstances of the complainants, beyond their gender, and more influenced by the generally appalling human rights conditions in the receiving

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State, than other findings of violation of article 3. A similar decision was reached in June 2011 in Bakutu-Bia v Sweden (CAT 379/05). However, by November 2011, the CAT Committee seems to have found that the situation in the DRC had improved, such that complaints against refoulement to that country by women in N B-M v Switzerland (CAT 347/08) and EL v Switzerland (CAT 3512/08) were rejected.69 [9.66] In Concluding Observations on Mongolia, the HRC bemoaned the requirement ‘to prove violence in order to obtain a conviction for rape’, as well as ‘the failure to make marital rape an offence’.70 In Concluding Observations on the United States, the HRC criticized the shackling of female prisoners during childbirth.71 [9.67] Women are a classically disadvantaged group in terms of all human rights, including the right to be free from torture and other ill treatment. Another group, which has attracted more recent attention in terms of specific human rights abuses, are elderly people. In Concluding Observations on Germany, the HRC stated:72 ¶17. The Committee notes the vulnerable situation of elderly persons placed in long-term care homes, which in some instances has resulted in degrading treatment and violated their right to human dignity (art. 7). The State party should pursue its efforts to improve the situation of elderly persons in nursing homes.

Mental Distress [9.68] Both the HRC and the CAT Committee have recognized that mental distress can be as cruel as the infliction of physical pain. Such mental anguish arose in following case. QUINTEROS v URUGUAY (107/81) This complaint was submitted by a mother on behalf of herself and her daughter, Elena. Elena had been abducted by Uruguayan security forces. Indeed, at the time of the Quinteros decision, Elena had not been released, so her fate was unknown. The HRC found a violation of article 7 with regard to Elena. The mother, María, submitted the following complaint on her own behalf: ¶1.9. [The author] adds that she is herself a victim of violations of article 7 (psychological torture because she does not know where her daughter is) . . .

69 In both cases, the CAT Committee shared the State Party’s doubts over the complainant’s credibility. 70 (2000) UN doc CCPR/C/79/Add.120, para 8(f) and (g). See also Vertido v Philippines (CEDAW 18/08) and Concluding Observations on Colombia (2004) UN doc CCPR/CO/80/COL, para 14; Ethiopia (2011) UN doc CCPR/C/ETH/CO/1, para 8. 71 Concluding Observations on the United States (2006) UN doc CCPR/C/USA/CO/3/Rev.1, para 33. 72 (2004) UN doc CCPR/CO/80/DEU.

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The HRC also found a breach or article 7 with regard to the mother: ¶14. With regard to the violations alleged by the author on her own behalf, the Committee . . . understands the anguish and stress caused to the mother by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts. The author has the right to know what has happened to her daughter. In these respects, she too is a victim of the violations of the Covenant suffered by her daughter in particular, of article 7.

The Quinteros precedent, concerning the anguish felt by a family member over the uncertain fate of the primary victim, has been followed regularly.73 [9.69] In Quinteros, the HRC found a ‘violation of article 7’ with regard to the mother; it did not specify whether she had suffered torture, inhuman treatment, or degrading treatment. Certainly, the Uruguayan authorities probably had no particular intention to cause severe pain and suffering to the mother, so the treatment would not fall within article 1 CAT.74 [9.70]

SCHEDKO v BELARUS (886/99)

The author’s complaint is evident from the HRC’s finding of violation: ¶10.2. The Committee notes that that the author’s claim that her family was informed of neither the date, nor the hour, nor the place of her son’s execution, nor of the exact place of her son’s subsequent burial, has remained unchallenged. In the absence of any challenge to this claim by the State party, and any other pertinent information from the State party on the practice of execution of capital sentences, due weight must be given to the author’s allegation. The Committee understands the continued anguish and mental stress caused to the author, as the mother of a condemned prisoner, by the persisting uncertainty of the circumstances that led to his execution, as well as the location of his gravesite. The Committee considers that complete secrecy surrounding the date of execution, and the place of burial and the refusal to hand over the body for burial have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress. The Committee considers that the authorities’ initial failure to notify the author of the scheduled date for the execution of her son, and their subsequent persistent failure to notify her of the location of her son’s grave amounts to inhuman treatment of the author, in violation of article 7 of the Covenant.

A similar decision has been reached on numerous occasions.75 A variation arose in Sankara et al v Burkina Faso (1159/03), where the father and husband of the authors had been killed in disputed circumstances. His death certificate wrongly recorded his cause of death as being a natural one. The failure by the State to amend that certificate, to confirm the circumstances of the death, or to reveal the whereabouts of the victim’s remains, breached the rights of the victim’s family

73 See eg Titiahonjo v Cameroon (1186/03), para 6.4; Giri v Nepal (1761/08), para 7.7, and numerous other cases of enforced disappearances [9.145]. 74 See also, eg, Jegatheeswara Sarma v Sri Lanka (950/00); see para 9.5. 75 See eg Staselovich v Belarus (887/99), Shukurova v Uzbekistan (1044/02), Khalilova v Tajikistan (973/01), Sultanova v Uzbekistan (915/00), Aliboev v Tajikistan (985/01), and Bazarov v Uzbekistan (959/00).

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under article 7. Similarly, in Eshonov v Russian Federation (1225/03), a violation of a father’s article 7 rights was found in regard to the State’s misrepresentation of and its failure to properly investigate the cause of death of his son.77 76

[9.71] Tornel et al v Spain (1473/06) concerned the State’s failure to inform a family of the deteriorating health condition of their loved one, a prisoner under its care. The HRC found a violation of article 17(1) [16.23]. It had found a complaint under article 7 to be admissible, but, in light of its article 17 finding, it ultimately made no finding as to whether a violation of article 7 also arose.78 [9.72] As in Vuolanne v Finland (265/87) [9.29], a number of complaints have been submitted regarding the mental anguish caused by incarceration. JENSEN v AUSTRALIA (762/97) The author made the following complaint: ¶3.4. The author also contends that the delay first in charging him, then in transferring him to Queensland and in not transferring him back to Western Australia to be close to his family immediately after the Queensland trial was oppressive and led to undue emotional and psychological trauma, including depression and suicidal tendencies, along with insomnia, hair loss and exposure to chemotherapy. He claims that this amounts to a violation of article 7 of the Covenant.

The State Party disputed the evidence, stating that the records showed the author had only suffered from mild depression and periodic anxiety.79 The HRC stated: ¶6.2. With respect to the author’s contention that the authorities have inflicted torture or cruel, inhuman and degrading treatment contrary to article 7 and otherwise ill-treated the author contrary to article 10, paragraph 1, the Committee refers to its jurisprudence that a claim by a prisoner pursuant to these articles must demonstrate an additional exacerbating factor beyond the usual incidents of detention. In the present case, the author has failed to demonstrate, for the purposes of admissibility, that he has been treated in any way which departs from the normal treatment accorded a prisoner. This part of the communication is accordingly inadmissible under article 2 of the Optional Protocol.

C v AUSTRALIA (900/99)

[9.73]

In this case, the author claimed that a violation of article 7 had occurred in respect of his detention under Australian laws which prescribed the compulsory detention of aliens arriving in the country illegally. In effect, this policy mandated the detention of unauthorized arrivals who had claimed asylum, whilst their immigration status was determined [11.25]. The author was initially detained on 22 July 1992, and was not released until 10 August 1994. The author claimed that the detention caused him to develop a serious mental illness. The HRC found in favour of the author on this issue:

76 78

At para 12.2. At para 7.5.

77

At para 9.10. See also Amirova v Russian Federation (1780/08), para 7. 79 At para 4.2.

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¶8.4. As to the author’s allegations that his first period of detention amounted to a breach of article 7,80 the Committee notes that the psychiatric evidence emerging from examinations of the author over an extended period, which was accepted by the State party’s courts and tribunals, was essentially unanimous that the author’s psychiatric illness developed as a result of the protracted period of immigration detention. The Committee notes that the State party was aware, at least from August 1992 when he was prescribed tranquilizers, of psychiatric difficulties the author faced. Indeed, by August 1993, it was evident that there was a conflict between the author’s continued detention and his sanity. Despite increasingly serious assessments of the author’s conditions in February and June 1994 (and a suicide attempt), it was only in August 1994 that the Minister exercised his exceptional power to release him from immigration detention on medical grounds (while legally he remained in detention). As subsequent events showed, by that point the author’s illness had reached such a level of severity that irreversible consequences were to follow. In the Committee’s view, the continued detention of the author when the State party was aware of the author’s mental condition and failed to take the steps necessary to ameliorate the author’s mental deterioration constituted a violation of his rights under article 7 of the Covenant.

[9.74] There is little doubt that the majority’s decision is linked with its finding that the detention was arbitrary contrary to article 9(1) [11.25], and that therefore release was a particularly desirable option in the circumstances. It is doubtful whether the HRC would find a violation entailed in a State’s failure to release a person detained in non-arbitrary circumstances (eg a convicted person incarcerated pursuant to a lawful, reasonable sentence) on the basis that the stress of detention had caused serious psychological difficulties. Indeed, a complaint regarding such a scenario had been pleaded unsuccessfully in Jensen [9.72]. [9.75] In Madafferi v Australia (1011/01), the author was returned to immigration detention pending deportation, after a period of home detention, in defiance of medical and psychiatric advice. The HRC found that that period of detention breached article 10(1), and explicitly did not consider whether it also breached article 7.81 [9.76] The failure of the State Party to provide medical treatment to redress the serious mental deterioration of the author, a death row detainee, in Williams v Jamaica (609/95), also constituted degrading treatment in breach of article 7.82 [9.77]

OBODZINSKY v CANADA (1124/02)

The author had been awarded Canadian citizenship after the Second World War in 1955. In 1999, Canada commenced proceedings to revoke his citizenship on the grounds that he was a Nazi war criminal. At that time, the author was a very old man in ill health. He suffered a heart attack and was hospitalized while proceedings were

80 The author was later placed in detention for a second period of time. Complaints in respect of that detention were inadmissible owing to failure to exhaust local remedies. 81 82 At para 9.3. At para 6.5.

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afoot. He died in 2004. It was claimed that Canada’s actions were cruel in breach of article 7. The HRC disagreed: ¶9.2. As regards the author’s claim of violation of article 7, he argues that he had serious heart problems and that the initiation and the continuation of citizenship revocation proceedings placed him under considerable stress, amounting to cruel and inhuman treatment. The Committee acknowledges that there may be exceptional circumstances in which putting a person in poor health on trial may constitute treatment incompatible with article 7, for example, where relatively minor justice issues or procedural convenience are made to prevail over relatively serious health risks. No such circumstances exist in the present case, in which the citizenship revocation proceedings were provoked by serious allegations that the author participated in the gravest crimes. In addition, on the specific facts of the present case, the Committee notes that the citizenship revocation proceedings were conducted primarily in writing and that the author’s presence was not required. Moreover, the author has not shown how the initiation and continuation of the citizenship revocation proceedings constituted treatment incompatible with article 7 since, as already mentioned, the conclusions of the medical affidavits he obtained differed on the impact of the proceedings on his health. Accordingly, the author has failed to establish that the State party was responsible for causing a violation of article 7.

Capital Punishment and the Death Row Phenomenon [9.78]

LARRAÑAGA v PHILIPPINES (1421/05)

This case concerned the imposition of a death penalty after an unfair trial. In such circumstances, that imposition is normally found to be a breach of the right to life [8.52]. However, in this case the penalty had been commuted to life imprisonment. In such cases, the HRC has occasionally found a breach of the right to life anyway or has found the article 6 issue to be moot [8.54]. Here, the HRC found a breach of Article 7: ¶7.11 With regard to the alleged violation of article 7, the Committee considers that to impose a death sentence on a person after an unfair trial is to subject that person wrongfully to the fear that he will be executed. In circumstances where there is a real possibility that the sentence will be enforced, that fear must give rise to considerable anguish. Such anguish cannot be dissociated from the unfairness of the proceedings underlying the sentence. Indeed, as the Committee has previously observed, the imposition of any death sentence that cannot be saved by article 6 would automatically entail a violation of article 7. The Committee therefore concludes that the imposition of the death sentence on the author after the conclusion of proceedings which did not meet the requirements of article 14 of the Covenant amounts to inhuman treatment, in violation of article 7.

The HRC came to a similar conclusion in Mwamba v Zambia (1520/06) and Yin Fong v Australia (1442/05). [9.79] Capital punishment is an express exception to the right to life in article 6.83 However, an alternative route for attacking the ICCPR compatibility of the death penalty is via article 7. In particular, it has been argued in numerous cases that ‘the 83

See generally [8.46]ff.

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death row phenomenon’ constitutes a breach of article 7. The death row phenomenon is caused by prolonged detention on death row, which causes ever-increasing mental anxiety and mounting tension over one’s impending death. The death row phenomenon therefore constitutes a form of mental distress which may raise article 7 issues. The inhuman and degrading nature of the death row phenomenon has been recognized by the European Court of Human Rights84 and the Judicial Committee of the Privy Council.85 [9.80] The HRC majority has consistently denied that the death row phenomenon violates article 7.86 In Barrett and Sutcliffe v Jamaica (270, 271/88), where the complainants had spent ten years on death row, the HRC gave one reason why it does not tend to accept that the death row phenomenon breaches article 7: ¶8.4. . . . even prolonged periods of detention under a severe custodial regime on death row cannot generally be considered to constitute cruel, inhuman or degrading treatment if the convicted person is merely availing himself of appellate remedies. . . . The evidence before the Committee indicates that the . . . delay in petitioning the [appellate court] is largely attributable to the authors.

[9.81] The most detailed HRC views on the death row phenomenon were issued in the following case. JOHNSON v JAMAICA (588/94) The facts are evident from the extract below. ¶8.2. The question that must be addressed is whether the mere length of the period a condemned person spends confined to death row may constitute a violation by a State party of its obligations under articles 7 and 10 not to subject persons to cruel, inhuman and degrading treatment or punishment and to treat them with humanity. In addressing this question, the following factors must be considered: (a) The Covenant does not prohibit the death penalty, though it subjects its use to severe restrictions. As detention on death row is a necessary consequence of imposing the death penalty, no matter how cruel, degrading and inhuman it may appear to be, it cannot, of itself, be regarded as a violation of articles 7 and 10 of the Covenant. (b) While the Covenant does not prohibit the death penalty, the Committee has taken the view, which has been reflected in the Second Optional Protocol to the Covenant, that article 6 ‘refers generally to abolition in terms which strongly suggest that abolition is desirable’. (See General Comment 6 (16) of 27 July 1982; also see Preamble to the Second Optional Protocol to the Covenant Aiming at the Abolition of the Death Penalty.) Reducing recourse to the death penalty may therefore be seen as one of the objects and purposes of the Covenant. (c) The provisions of the Covenant must be interpreted in the light of the Covenant’s objects and purposes (article 31 of the Vienna Convention on the Law of Treaties). As one Soering v UK Series A, No 161, reported at (1989) 11 EHRR 439. Pratt and Morgan v Attorney-General for Jamaica [1993] 2 AC 1. 86 See eg Kindler v Canada (470/91), Simms v Jamaica (541/93), Rogers v Jamaica (494/92), and Hylton v Jamaica (600/94). 84 85

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of these objects and purposes is to promote reduction in the use of the death penalty, an interpretation of a provision in the Covenant that may encourage a State party that retains the death penalty to make use of that penalty should, where possible, be avoided. ¶8.3. In light of these factors, we must examine the implications of holding the length of detention on death row, per se, to be in violation of articles 7 and 10. The first, and most serious, implication is that if a State party executes a condemned prisoner after he has spent a certain period of time on death row, it will not be in violation of its obligations under the Covenant, whereas if it refrains from doing so, it will violate the Covenant. An interpretation of the Covenant leading to this result cannot be consistent with the Covenant’s object and purpose. The above implication cannot be avoided by refraining from determining a definite period of detention on death row, after which there will be a presumption that detention on death row constitutes cruel and inhuman punishment. Setting a cut-off date certainly exacerbates the problem and gives the State party a clear deadline for executing a person if it is to avoid violating its obligations under the Covenant. However, this implication is not a function of fixing the maximum permissible period of detention on death row, but of making the time factor, per se, the determining one. If the maximum acceptable period is left open, States parties which seek to avoid overstepping the deadline will be tempted to look to the decisions of the Committee in previous cases so as to determine what length of detention on death row the Committee has found permissible in the past. ¶8.4. The second implication of making the time factor per se the determining one, i.e. the factor that turns detention on death row into a violation of the Covenant, is that it conveys a message to States parties retaining the death penalty that they should carry out a capital sentence as expeditiously as possible after it was imposed. This is not a message the Committee would wish to convey to States parties. Life on death row, harsh as it may be, is preferable to death. Furthermore, experience shows that delays in carrying out the death penalty can be the necessary consequence of several factors, many of which may be attributable to the State party. Sometimes a moratorium is placed on executions while the whole question of the death penalty is under review. At other times the executive branch of government delays executions even though it is not feasible politically to abolish the death penalty. The Committee would wish to avoid adopting a line of jurisprudence which weakens the influence of factors that may very well lessen the number of prisoners actually executed. It should be stressed that by adopting the approach that prolonged detention on death row cannot, per se, be regarded as cruel and inhuman treatment or punishment under the Covenant, the Committee does not wish to convey the impression that keeping condemned prisoners on death row for many years is an acceptable way of treating them. It is not. However, the cruelty of the death row phenomenon is first and foremost a function of the permissibility of capital punishment under the Covenant. This situation has unfortunate consequences. ¶8.5. Finally, to hold that prolonged detention on death row does not, per se, constitute a violation of articles 7 and 10, does not imply that other circumstances connected with detention on death row may not turn that detention into cruel, inhuman and degrading treatment or punishment. The jurisprudence of the Committee has been that where compelling circumstances of the detention are substantiated, that detention may constitute a violation of the Covenant. This jurisprudence should be maintained in future cases. ¶8.6. In the present case, neither the author nor his counsel have pointed to any compelling circumstances, over and above the length of the detention on death row, that would turn Mr. Johnson’s detention into a violation of articles 7 and 10. The Committee therefore concludes that there has been no violation of these provisions.

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[9.82] A significant minority of members (Chanet, Aguilar Urbina, Bhagwati, Bruni Celli, and Prado Vallejo) argued that the majority opinion was too inflexible. They preferred that the compatibility of the death row phenomenon be assessed on a case-by-case basis. Nevertheless, Johnson has been followed on numerous occasions.87 [9.83] A few minority opinions have found article 7 violations on the basis of the death row phenomenon per se, as in the following case. LAVENDE v TRINIDAD AND TOBAGO (554/1993) The majority in this case followed Johnson in finding no violation of article 7 entailed in the complainant’s 18 years on death row. Messrs Bhagwati, Prado Vallejo, and Pocar, as well as Ms Chanet and Mrs Gaitan de Pombo, dissented in the following terms: The Committee reiterates in the present cases the views that prolonged detention on death row cannot per se constitute a violation of article 7 of the Covenant. This view reflects a lack of flexibility that would not allow the Committee to examine the circumstances of each case, in order to determine whether, in a given case, prolonged detention on death row constitutes cruel, inhuman or degrading treatment within the meaning of the above-mentioned provision. This approach leads the Committee to conclude, in the present cases, that detention on death row for eighteen years after the exhaustion of local remedies does not allow a finding of violation of article 7. We cannot agree with this conclusion. Keeping a person detained on death row for so many years, after exhaustion of domestic remedies, and in the absence of any further explanation of the State party as to the reasons thereof, constitutes in itself cruel and inhuman treatment. It should have been for the State party to explain the reasons requiring or justifying such prolonged detention on death row; however, no justification was offered by the State party in the present cases.

A similar dissent was issued in Bickaroo v Jamaica (555/93), where the relevant period of detention on death row was 16 years. A sizeable minority within the HRC is therefore willing to find that extended detention on death row may per se breach article 7 in cases where the detention is extraordinarily long.88 Furthermore, the HRC has expressed concern to Uganda in 2004 over the ‘long periods of time which convicted prisoners spen[t] on death row (almost 20 years in one case)’.89 [9.84] The HRC majority has occasionally found that compelling circumstances, beyond mere length of time on death row, exist to transform the death row phenomenon into a violation of article 7. FRANCIS v JAMAICA (606/94) ¶9.1. The Committee must determine whether the author’s treatment in prison, particularly during the nearly 12 years that he spent on death row following his conviction on 26 See eg Howell v Jamaica (798/98), para 6.3. See also the dissent of Mr Bán in Cox v Canada (539/93) and dissent by Messrs Solari-Yrigoyen and Johnson in Persaud and Rampersaud v Guyana (812/98). 89 (2004) UN doc CCPR/CO/80/UGA, para 13. 87 88

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January 1981 until the commutation of his death sentence on 29 December 1992 entailed violations of articles 7 and 10 of the Covenant. With regard to the ‘death row phenomenon’, the Committee reaffirms its well established jurisprudence that prolonged delays in the execution of a sentence of death do not per se constitute cruel, inhuman or degrading treatment. On the other hand, each case must be considered on its own merits, bearing in mind the imputability of delays in the administration of justice on the State party, the specific conditions of imprisonment in the particular penitentiary and their psychological impact on the person concerned. ¶9.2. In the instant case, the Committee finds that the failure of the Jamaican Court of Appeal to issue a written judgment over a period of more than 13 years, despite repeated requests on Mr. Francis’ behalf, must be attributed to the State party. Whereas the psychological tension created by prolonged detention on death row may affect persons in different degrees, the evidence before the Committee in this case, including the author’s confused and incoherent correspondence with the Committee, indicates that his mental health seriously deteriorated during incarceration on death row. Taking into consideration the author’s description of the prison conditions, including his allegations about regular beatings inflicted upon him by warders, as well as the ridicule and strain to which he was subjected during the five days he spent in the death cell awaiting execution in February 1988, which the State party has not effectively contested, the Committee concludes that these circumstances reveal a violation of Jamaica’s obligations under articles 7 and 10, paragraph 1, of the Covenant.

KAMOYO v ZAMBIA (1859/09)

[9.85]

¶6.5. The Committee further considers that the author’s detention on death row, where, at the time of submission of his communication, he had been waiting for 13 years for the hearing of his appeal, raises issues under article 7 of the Covenant. The Committee recalls that prolonged delays in the execution of a sentence of death do not per se constitute cruel, inhuman or degrading treatment. On the other hand, each case must be considered on its own merits, bearing in mind the imputability of delays in the administration of justice on the State party, the specific conditions of imprisonment in a maximum security prison and their psychological impact on the person concerned. In the instant case, in addition to the psychological distress created by prolonged detention on death row, the uncontested evidence before the Committee indicates that the author’s case record was lost. The Committee concludes that the failure of the Supreme Court of Zambia to decide on the author’s appeal within a reasonable period must be attributed to negligence by the State party. As a consequence, the Committee considers that the author’s prolonged detention on death row constitutes a breach of the obligations of Zambia under article 7 of the Covenant.

[9.86]

CLIVE JOHNSON v JAMAICA (592/94)

In this case, the author had been under 18 years of age at the time of his conviction, so imposition of the death penalty contravened article 6(5) of the Covenant.90 As his death sentence was void ab initio, his eight years on death row breached article 7.91 Mr Kretzmer further explained the decision in a concurring opinion: [W]hen a State party would violate the Covenant by imposing and carrying out the death sentence . . . the violation involved in imposing the death penalty is compounded by holding 90

See [8.65] on art 6(5).

91

At para 10.4.

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the condemned person on death row. . . . This detention on death row may certainly amount to cruel and inhuman punishment, especially when that detention lasts longer than is necessary for the domestic legal proceedings required to correct the error involved in imposing the death sentence.

[9.87]

WILSON v PHILIPPINES (868/99)

¶7.4. As to the claims concerning the author’s mental suffering and anguish as a consequence of being sentenced to death, the Committee observes that the author’s mental condition was exacerbated by his treatment in, as well as the conditions of, his detention, and resulted in documented long-term psychological damage to him. In view of these aggravating factors constituting further compelling circumstances beyond the mere length of time spent by the author in imprisonment under a sentence of death, the Committee concludes that the author’s suffering under a sentence of death amounted to an additional violation of article 7. None of these violations were remedied by the Supreme Court’s decision to annul the author’s conviction and death sentence after he had spent almost fifteen months of imprisonment under a sentence of death.

[9.88]

CHISANGA v ZAMBIA (1132/02)

The author was sentenced to death upon being found guilty of attempted murder in 1995. On appeal, the Supreme Court appeared to substitute his death sentence for a prison term of 18 years, and he was removed from death row. However, he was returned to death row two years later when the Supreme Court affirmed the original death sentence. The HRC found a breach of article 7: ¶7.3. The Committee . . . considers that to keep the author in doubt as to the result of his appeal, in particular by making him believe that his sentence had been commuted, only to inform him later that it was not, and by returning him to death row after two years in the long-term section, without an explanation on the part of the State, had such a negative psychological impact and left him in such continuing uncertainty, anguish and mental distress as to amount to cruel and inhuman treatment. The Committee finds that the State party violated the author’s rights protected by article 7 of the Covenant in this context.

[9.89] One’s anxiety at impending execution would intensify once a warrant for execution has actually been issued. The following cases address this issue. MARTIN v JAMAICA (317/88) ¶12.3. The author further alleges that the delay of 17 days between the issuing of the warrant for his execution and its stay, during which time he was detained in a special cell, constitutes a violation of article 7 of the Covenant. The Committee observes that, after the warrant had been issued, a stay of execution was requested, on the grounds that counsel would prepare a petition for leave to appeal to the Judicial Committee of the Privy Council. This stay of execution was subsequently granted. Nothing in the information before the Committee indicates that the applicable procedures were not duly followed, or that the author continued to be detained in the special cell after the stay of execution had been granted. The Committee therefore finds that the facts before it do not disclose a violation of article 7 of the Covenant.

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PENNANT v JAMAICA (647/95) ¶8.6. . . . the author was placed in a death cell for two weeks after a warrant for execution was read to him. The Committee notes the State party’s contention that it is to be expected that this would cause the author ‘some anxiety’, and that the time spent there was because efforts were ‘presumably’ being made to have his execution stayed. The Committee considers that in the absence of a detailed explanation by the State party as to the reasons for the author’s two weeks stay in a death cell, this cannot be deemed compatible with . . . article 7 of the Covenant . . .

[9.90] Despite the Martin decision, it now seems that the HRC accepts that detention in ‘a death cell’ after the issue of a warrant for execution does amount to a breach of article 7 if it is deemed unreasonably long. The imminence of anticipated execution and the consequent increase in anxiety distinguish such instances from ordinary cases of the death row phenomenon. Two weeks constitutes an unreasonably long period of detention in a death cell, according to Pennant. States Parties should not issue warrants for execution more than a few days before the anticipated date for execution. [9.91] In Pratt and Morgan v Jamaica (210/86, 225/87), a violation of article 7 was entailed in the 24-delay in informing the authors of their stay of execution.92 Therefore, a prisoner should be told of a stay as soon as practicable. THOMPSON v ST VINCENT AND THE GRENADINES (806/98) ¶8.4. Insofar as the author means to claim that the fact that he was taken to the gallows after a warrant for his execution had been issued and that he was removed only fifteen minutes before the scheduled execution constituted cruel, inhuman or degrading treatment, the Committee notes that nothing before the Committee indicates that the author was not removed from the gallows immediately after the stay of execution had been granted. The Committee therefore finds that the facts before it do not disclose a violation of article 7 of the Covenant in this respect.

In Thompson, there was no evidence that the time between the issue of the warrant and the issue of the stay was overly long (as in Pennant), nor that there was any delay in informing the author of the stay as soon as it was granted (as in Pratt and Morgan). [9.92]

RS v TRINIDAD and TOBAGO (684/96)

¶7.2. As to the author’s claim that issuing of a warrant for the execution of a mentally incompetent person constitutes a violation of articles 6 and 7 of the Covenant, the Committee notes that the author’s counsel does not claim that his client was mentally incompetent at the time of imposition of the death penalty and his claim focuses on the time when the warrant for execution was issued. Counsel has provided information that shows that the author’s mental state at the time of the reading of the death warrant was obvious to those around him and should have been apparent to the prison authorities. This information has not been contested by the State party. The Committee is of the opinion that in these 92

At para 13.7.

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circumstances issuing a warrant for the execution of the author constituted a violation of article 7 of the Covenant.

The time between the issue of the warrant and the relevant stay was only four days. RS therefore stands for the proposition that the issue of a death warrant to a mentally ill person constitutes a breach of article 7 per se. [9.93]

RAYOS v PHILIPPINES (1167/03)

This case included a complaint about the minimal amount of notice given prior to an execution. Condemned prisoners were only entitled to eight hours’ notice. The HRC found that that short period of notice did not breach article 7:93 ¶7.1. The Committee notes the author’s claims of violations under articles 7 and 10, paragraph 1, on account of the fact that he would not be notified of the of his execution until dawn of the day in question, whereupon he would be executed within 8 hours and would have insufficient time to bid farewell to family members and organise his personal affairs. It further notes the State party’s contention that the death sentence shall be carried out ‘not earlier than one (1) year nor later than eighteen (18) months after the judgment has become final and executory, without prejudice to the exercise by the President of his executive clemency powers at all times.’ The Committee understands from the legislation that the author would have at least one year and at most eighteen months, after the exhaustion of all available remedies, during which he may make arrangements to see members of his family prior to notification of the date of execution. It also notes that, under Section 16 of the Republic Act No. 8177, following notification of execution he would have approximately eight hours to finalise any personal matters and meet with members of his family. The Committee reiterates its prior jurisprudence that the issue of a warrant for execution necessarily causes intense anguish to the individual concerned and is of the view that the State party should attempt to minimize this anguish as far as possible. However, on the basis of the information provided, the Committee cannot find that the setting of the time of the execution of the author within eight hours after notification, considering that he would already have had at least one year following the exhaustion of domestic remedies and prior to notification to organize his personal affairs and meet with family members, would violate his rights under articles 7, and 10, paragraph 1.

Method of Execution [9.94]

NG v CANADA (469/91)

The author argued against his extradition to the United States. One argument he raised was that the method of execution that he was likely to face, gas asphyxiation, would breach article 7. The HRC majority agreed: ¶16.1. . . . In the instant case, it is contended that execution by gas asphyxiation is contrary to internationally accepted standards of humane treatment, and that it amounts to treatment in violation of article 7 of the Covenant. The Committee begins by noting that whereas article 6, paragraph 2, allows for the imposition of the death penalty under certain limited circumstances, any method of execution provided for by law must be designed in such a way as to avoid conflict with article 7. 93 See also Rolando v Philippines (1110/02), para 5.4. Compare Concluding Observations on Japan (2008) UN doc CCPR/C/JPN/CO/5, para 16.

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¶16.2. The Committee is aware that, by definition, every execution of a sentence of death may be considered to constitute cruel and inhuman treatment within the meaning of article 7 of the Covenant; on the other hand, article 6, paragraph 2, permits the imposition of capital punishment for the most serious crimes. Nonetheless, the Committee reaffirms . . . that, when imposing capital punishment, the execution of the sentence ‘. . . must be carried out in such a way as to cause the least possible physical and mental suffering’. ¶16.3. In the present case, the author has provided detailed information that execution by gas asphyxiation may cause prolonged suffering and agony and does not result in death as swiftly as possible, as asphyxiation by cyanide gas may take over 10 minutes. . . . ¶16.4. In the instant case and on the basis of the information before it, the Committee concludes that execution by gas asphyxiation, should the death penalty be imposed on the author, would not meet the test of ‘least possible physical and mental suffering’, and constitutes cruel and inhuman treatment, in violation of article 7 of the Covenant. Accordingly, Canada, which could reasonably foresee that Mr. Ng, if sentenced to death, would be executed in a way that amounts to a violation of article 7, failed to comply with its obligations under the Covenant, by extraditing Mr. Ng without having sought and received assurances that he would not be executed.

[9.95] Messrs Mavrommatis and Sadi, with whom Messrs Ando and Herndl essentially agreed, dissented on this point: We do not believe that, on the basis of the material before us, execution by gas asphyxiation could constitute cruel and inhuman treatment within the meaning of article 7 of the Covenant. A method of execution such as death by stoning, which is intended to and actually inflicts prolonged pain and suffering, is contrary to article 7.94 Every known method of judicial execution in use today, including execution by lethal injection, has come under criticism for causing prolonged pain or the necessity to have the process repeated. We do not believe that the Committee should look into such details in respect of execution such as whether acute pain of limited duration or less pain of longer duration is preferable and could be a criterion for a finding of violation of the Covenant.

The minority HRC members felt that a mode of execution should be ‘intentionally’ brutal in order for it to breach article 7. This echoes the requirement of intentionality in article 1 of CAT. [9.96] In Cox v Canada (539/93), the HRC found that execution by lethal injection did not breach article 7.95 [9.97] In Concluding Observations on the Islamic Republic of Iran, the HRC ‘deplore[d] that a number of executions [had] taken place in public’,96 indicating that public executions constitute ‘inhuman’ or at least ‘degrading’ treatment.

94 See also Concluding Observations on Yemen (2005) UN doc CCPR/CO/84/YEM, para 15; Islamic Republic of Iran (2011) UN doc CCPR/C/IRN/CO/3, para 12. 95 At para 17.3. 96 (1993) UN doc CCPR/C/79/Add.25, para 8.

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Extradition, Expulsion, Refoulement [9.98]

GENERAL COMMENT 20

¶9. In the view of the Committee, States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.

[9.99]

GENERAL COMMENT 31

¶12. Moreover, the article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed. . . .

[9.100]

PILLAI v CANADA (1763/08)

The HRC found that the deportation of a particular family to Sri Lanka would breach article 7.97 It enunciated its finding as follows: ¶11.4. With regard to the authors’ claim that, should the State party deport them to Sri Lanka, they would be exposed to a real risk of torture, the Committee notes the argument invoked by the State party regarding the harm being the necessary and foreseeable consequence of the deportation. In that respect the Committee recalls its General Comment No. 31 in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm. The Committee further notes that the diagnosis of Mr. Pillai’s post-traumatic stress disorder led the IRB to refrain from questioning him about his earlier alleged torture in detention. The Committee is accordingly of the view that the material before it suggests that insufficient weight was given to the authors’ allegations of torture and the real risk they might face if deported to their country of origin, in the light of the documented prevalence of torture in Sri Lanka. Notwithstanding the deference given to the immigration authorities to appreciate the evidence before them, the Committee considers that further analysis should have been carried out in this case. The Committee therefore considers that the removal order issued against the authors would constitute a violation of article 7 of the Covenant if it were enforced.

Several HRC members concurred while discussing the actual test for this type of ‘deportation’ violation of article 7 (or 6). Ms Keller, Ms Antoanella Motoc, Messrs Neuman and O’Flaherty, and Sir Nigel Rodley noted that the early formulations of the test in the case of Kindler v Canada (470/91) [8.67] focused on whether there violations of article 6 or 7 would take place upon deportation. They correctly noted that that approach was too strict: In its submissions on the present Communication, the State party has referred without distinction to early Views of the Committee such as Kindler and to more current Views, and it 97

See also Byahuranga v Denmark (1222/03).

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has described the relevant issue as whether the necessary and foreseeable consequence of the deportation would be the killing or torture of the authors. That is not the proper inquiry. The question should be whether the necessary and foreseeable consequence of the deportation would be a real risk of the killing or torture of the authors. The other factors identified by the Committee in its present Views suggest that this misunderstanding of the relevant standard may have deprived the authors of a proper evaluation of their claims under Article 7 of the Covenant [in Canada].

The above-mentioned members clarified that the proper test is to ask whether deportation would necessarily and foreseeably expose a person to a real risk of being killed or tortured.98 This is a broader test than that occasionally enunciated in previous cases, and by States parties. The narrower (and wrong) test is to ask whether deportation would necessarily and foreseeably lead to killing or torture of the deportee (ie rather than the ‘real risk’ of such events). [9.101]

C v AUSTRALIA (900/99)

The author was earmarked for deportation to Iran. He had previously been awarded refugee status but his visa had been revoked due to crimes he had committed in Australia. He claimed that his deportation would breach article 7. The Committee found in favour of the author: ¶8.5. As to the author’s arguments that his deportation would amount to a violation of article 7, the Committee attaches weight to the fact that the author was originally granted refugee status on the basis of a well-founded fear of persecution as an Assyrian Christian, coupled with the likely consequences of a return of his illness. In the Committee’s view, the State party has not established that the current circumstances in the receiving State are such that the grant of refugee status no longer holds validity. . . .

The author suffered from paranoid schizophrenia, exacerbated by his detention in Australia [9.73]. He had also argued that ‘it [was] not known whether his medication [would be] available in Iran’.99 ¶8.5. . . . The Committee further observes that the AAT [Administrative Appeals Tribunal], whose decision was upheld on appeal, accepted that it was unlikely that the only effective medication (Clozaril) and backup treatment would be available in Iran, and found the author ‘blameless for his mental illness’ which ‘was first triggered while in Australia’. In circumstances where the State party has recognized a protection obligation towards the author, the Committee considers that deportation of the author to a country where it is unlikely that he would receive the treatment necessary for the illness caused, in whole or in part, because of the State party’s violation of the author’s rights would amount to a violation of article 7 of the Covenant.

[9.102]

X v SWEDEN (1833/08)

The author claimed that his forced expulsion to Afghanistan would breach article 7 as he would face ill-treatment due to his sexuality.100 The HRC agreed: 98 Mr Iwasawa agreed with this formulation of the test, but dissented on its application. That is, he found that the deportation of the Pillai would not breach art 7. 99 At para 5.4. 100 See also Uttam Mondal v Sweden (CAT 338/08).

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¶9.2. . . . The Committee . . . notes the State party’s argument that the author’s asylum application was duly considered by the migration authorities which did not find that the situation of homosexual or bisexual persons in Afghanistan was such that in itself warranted international protection, and that the author had not established that he risked being subjected to persecution if he were to return to Afghanistan . . . In this context, the Committee recalls that it is generally for the instances of States parties to the Covenant to review or evaluate facts and evidence in order to determine the existence of such danger. ¶9.3. . . . [T]he Committee observes that the material before it shows that the State party’s migration authorities rejected the author’s application, not on the ground of the author’s unchallenged sexual orientation and its impact on the author in the particular circumstances in Afghanistan, but rather on the ground that the sexual orientation claim had been invoked at a late stage in the asylum process which, in the view of the State party, substantially undermined his credibility, notwithstanding the reasons given by the author for the late disclosure of his claim—namely stigma associated with bisexuality and homosexuality, feelings of shame, fear of reprisal, as well as lack of knowledge that sexual orientation would be a valid claim for refugee status and asylum—and considered that he failed to meet the standard of ‘valid excuse’ within the meaning of [domestic legislation]. ¶9.4. The State party found that the author would not face any risk of torture if returned to his country of origin, even though the State party itself referred to international reports according to which homosexual activities in Afghanistan are punishable as Hudood crimes by a maximum sentence of death. The Committee observes that in the assessment of the author’s risk of being subjected to treatment contrary to articles 6 and 7 of the Covenant upon return to Afghanistan the State party’s authorities focused mainly on inconsistencies in the author’s account of specific supporting facts and the low credibility derived from the late submission of the sexual orientation claim. The Committee is of the view that insufficient weight was given to the author’s allegations on the real risk he might face in Afghanistan in view of his sexual orientation. Accordingly, the Committee considers that, in the circumstances, the author’s deportation to Afghanistan constitutes a violation of articles 6 and 7 of the Covenant.

[9.103] In Warsame v Canada (1959/10), the HRC found that the expulsion of a person to Somalia, when he had never been to that country and lacked clan identification, would breach article 7 [8.74]. In contrast, it did not find that Haiti was so dangerous a State that deportation to that country per se violated article 7 in Dauphin v Canada (1792/08).101 Warsame differs from most of the other deportation decisions under article 7 as the author did not face specific persecution upon arrival in Somalia: rather his likely general circumstances upon arrival were likely to give rise to the relevant violations. Another such case is XHL v Netherlands (1564/07) [21.48]. [9.104]

ALZERY v SWEDEN (1416/05)

The author in this case had been deported to Egypt as a terrorist suspect. He claimed that he was tortured in Egypt, and that that torture was foreseeable at the time he was deported. As he was deemed a security risk, he was expelled without 101

At para 7.4. The claim was inadmissible.

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being given the chance to appeal [13.23]. Sweden had received diplomatic assurances from Egypt that the author would not be tortured prior to his expulsion. As noted above, this seems to be an instance of extraordinary rendition [9.13]. The HRC found that Sweden had violated article 7: ¶11.3. The first substantive issue before the Committee is whether the author’s expulsion from Sweden to Egypt exposed him to a real risk of torture or other ill-treatment in the receiving State, in breach of the prohibition on refoulement contained in article 7 of the Covenant. In determining the risk of such treatment in the present case, the Committee must consider all relevant elements, including the general situation of human rights in a State. The existence of diplomatic assurances, their content and the existence and implementation of enforcement mechanisms are all factual elements relevant to the overall determination of whether, in fact, a real risk of proscribed ill-treatment exists. ¶11.4. The Committee notes that, in the present case, the State party itself has conceded that there was a risk of ill-treatment that—without more—would have prevented the expulsion of the author consistent with its international human rights obligations . . . The State party in fact relied on the diplomatic assurances alone for its belief that the risk of proscribed ill-treatment was sufficiently reduced to avoid breaching the prohibition on refoulement. ¶11.5. The Committee notes that the assurances procured contained no mechanism for monitoring of their enforcement. Nor were any arrangements made outside the text of the assurances themselves which would have provided for effective implementation. The visits by the State party’s ambassador and staff commenced five weeks after the return, neglecting altogether a period of maximum exposure to risk of harm. The mechanics of the visits that did take place, moreover, failed to conform to key aspects of international good practice by not insisting on private access to the detainee and inclusion of appropriate medical and forensic expertise, even after substantial allegations of ill-treatment emerged. In light of these factors, the State party has not shown that the diplomatic assurances procured were in fact sufficient in the present case to eliminate the risk of ill-treatment to a level consistent with the requirements of article 7 of the Covenant. The author’s expulsion thus amounted to a violation of article 7 of the Covenant.

[9.105] The HRC indicated in Alzery that it did not trust that diplomatic assurances sufficed to protect people from violations of their ICCPR rights. At the least, Sweden should have instituted more protocols to ensure that the assurances were being adhered to. The HRC displayed a similar mistrust of assurances in Israil v Kazakhstan (2024/11) concerning the extradition of a person to China [8.73], and Maksudov et al v Kyrgysztan (1461–1462–1476 &1477/06), regarding extradition to Uzbekistan.102 [9.106] The CAT Committee trusted in Egyptian assurances in making a finding of non-violation of article 3 in Attia v Sweden (CAT 199/02). However, it discovered that Egyptian assurances in that regard were worthless in the later case of Agiza v Sweden (CAT233/03), which concerned the fate of Attia’s husband, and which had almost identical facts to Alzery. Indeed, Agiza was rendered to Egypt by Sweden at the same time as Alzery. The CAT Committee remained sceptical 102

See also Concluding Observations on Denmark (2008) UN doc CCPR/C/DNK/CO/5, para 10.

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of assurances in Pelit v Azerbaijan (CAT 281/05) concerning the extradition of a person to Turkey, Kalinichenko v Morocco (CAT 428/10) concerning extradition to Russia, and Abdussamatov v Kazakhstan (CAT 444/10), concerning extradition to Uzbekistan. [9.107] The deportation of Alzery without appeal was also found to breach article 7: ¶11.8. As to the claim concerning the absence of independent review of the Cabinet’s decision to expel, given the presence of an arguable risk of torture, the Committee notes that article 2 of the Covenant, read in conjunction with article 7, requires an effective remedy for violations of the latter provision. By the nature of refoulement, effective review of a decision to expel to an arguable risk of torture must have an opportunity to take place prior to expulsion, in order to avoid irreparable harm to the individual and rendering the review otiose and devoid of meaning. The absence of any opportunity for effective, independent review of the decision to expel in the author’s case accordingly amounted to a breach of article 7, read in conjunction with article 2 of the Covenant.

It may be noted that no violation of article 13, which specifically concerns the procedural rights of prospective deportees, was found in this case [13.23]. However, article 13 contains a ‘national security’ exception. That exception does not apply to non-refoulement cases under article 7.103 [9.108]

ARTICLE 3, CAT

1. No State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

[9.109] Article 3 CAT expressly applies only to prohibit refoulement to a State where one foreseeably faces torture. In BS v Canada (CAT 166/00), the CAT Committee confirmed that article 3 does not apply to prevent refoulement in case of treatment that falls short of torture.104 In contrast, General Comment 20 indicates that the ICCPR prohibits refoulement with regard to all article 7 treatment. Despite the greater apparent depth of the article 7 guarantee, most complaints concerning deportation and refoulement have been submitted to the CAT Committee, probably because of the express protection given to prospective deportees in article 3. Indeed, the vast majority of cases before the CAT Committee have concerned alleged violations of article 3. [9.110] The CAT Committee has found violations of Article 3 in Arkauz Arana v France (CAT 63/97) (return to Spain),105 Khan v Canada (CAT 15/94) (proposed See also Ahani v Canada (1051/02) [13.24]. At para 7.4. See also IAO v Sweden (CAT 65/97), para 14.5; VXN and HN v Sweden (CAT 130–131/99), para 13.7; TM v Sweden (CAT 288/03), para 6.2. 105 Compare GK v Switzerland (CAT 219/02). 103 104

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expulsion to Pakistan), Alan v Switzerland (CAT 21/95), Ayas v Sweden (CAT 97/97), Haydin v Sweden (CAT 101/97), HD v Switzerland (CAT 112/98), Haydin v Sweden (CAT 101/97), Pelit v Azerbaijan (CAT 281/05)106 (proposed expulsion to Turkey), SMR and MMR v Sweden (CAT 103/98), Aemei v Switzerland (CAT 34/95), Tala v Sweden (CAT 43/96), Falakaflaki v Sweden (CAT 89/97), Dadar v Canada (CAT 258/04), Jahani v Switzerland (CAT 357/08) (proposed expulsion to Iran), A v Netherlands (CAT 91/97), Ahmed Karoui v Sweden (CAT185/01) (proposed expulsion to Tunisia), Muzonzo v Sweden (CAT 41/96), X v Netherlands (CAT 41/96), Kisoki v Sweden (CAT 41/96), Mutombo v Switzerland (CAT 13/93) (proposed expulsion to Zaire), CT and KM v Sweden (CAT 279/2005) (proposed expulsion to Rwanda), Singh Khalsa v Switzerland (CAT 366/08) (proposed expulsion of Sikh activists who had been involved in hijackings to India), El Rgeig v Switzerland (CAT 280/05) (proposed expulsion to Libya), Falcon Rios v Canada (CAT 133/99) (proposed expulsion to Mexico), TA v Sweden (CAT 266/03) (proposed expulsion to Bangladesh), and Ktiti v Morocco (CAT 419/10) (expulsion to Algeria). [9.111] In the majority of communications submitted under article 3, the author has been found by CAT not to have sufficiently substantiated his/her claim of foreseeable persecution upon expulsion.107 The CAT Committee is probably reluctant to overrule domestic tribunals with regard to findings of fact, which normally govern such determinations.108 Certain circumstances will also tell against an author. For example, in AD v Netherlands (CAT 96/97), the author claimed his proposed deportation to Sri Lanka would expose him to a risk of torture in that country. His claim was rejected by the CAT Committee, partly because his allegations of prior harassment and torture in Sri Lanka related to the behaviour of a previous Sri Lankan government. Given the change of government, his claim of likely torture upon return was not substantiated.109 In SS v Netherlands (191/01), the commencement of peace talks between the Sri Lankan government and the Tamil rebel groups meant that the extradition of the Tamil author to Sri Lanka was less likely to put him at risk of torture.110 In HAD v Switzerland (216/99), the lapse in time between the alleged prior ill treatment by the receiving State and the present day (15 years) indicated that the author faced no current risk of torture upon return.111 While the author in ZZ v Canada (CAT 123/99) had established that his ethnic group was at general risk in Afghanistan, he had failed to establish that he would be at personal risk of torture if returned to that country.

106 The finding in this case was facilitated by the fact that refugee status from Turkey had been granted to the relevant individual by Germany. Azerbaijan failed to explain why it had not respected Germany’s finding (para 11). 107 See eg Y v Switzerland (CAT 18/94), EA v Switzerland (CAT 28/95), PQL v Canada (CAT 57/96), KN v Switzerland (CAT 94/97), JUA v Switzerland (CAT 100/97), NP v Australia (CAT 106/98), ALN v Switzerland (CAT 90/97), and X, Y, and Z v Sweden (CAT 61/96). 108 109 See also [1.53] and [14.63]. At para 7.4. 110 111 At para 6.7; see also US v Finland (197/02), para 7.7. At para 8.6.

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268 [9.112]

KORBAN v SWEDEN (CAT 88/97)

This case deals with the article 3 compatibility of return to a State where there is a substantial likelihood of being deported to another State where that person may face torture. ¶3.1. The author claims that his return to Iraq would constitute a violation of article 3 of the Convention against Torture by Sweden, since there are risks that he would be arrested and subjected to torture in that country. He also claims that, not having a residence permit in Jordan, it is unsafe for him to return to that country from which he fears to be sent back to Iraq since the Jordan police [sic] work closely with the Iraqi authorities.

The CAT Committee subsequently found that deportation to Iraq would violate article 3 CAT. Regarding the proposed deportation to Jordan, the Committee again found in favour of the author: ¶6.5. The Committee notes that the Swedish immigration authorities had ordered the author’s expulsion to Jordan and that the State party abstains from making an evaluation of the risk that the author will be deported to Iraq from Jordan. It appears from the parties’ submissions, however, that such risk cannot be excluded, in view of the assessment made by different sources, including UNHCR, based on reports indicating that some Iraqis have been sent by the Jordanian authorities to Iraq against their will, that marriage to a Jordanian woman does not guarantee a residence permit in Jordan and that this situation has not improved after the signature of a Memorandum of Understanding between the UNHCR and the Jordanian authorities regarding the rights of refugees in Jordan. The State party itself has recognised that Iraqi citizens who are refugees in Jordan, in particular those who have been returned to Jordan from a European country, are not entirely protected from being deported to Iraq. ¶7. In the light of the above, the Committee is of the view that, in the prevailing circumstances, the State party has an obligation to refrain from forcibly returning the author to Iraq. It also has an obligation to refrain from forcibly returning the author to Jordan, in view of the risk he would run of being expelled from that country to Iraq. In this respect the Committee refers to paragraph 2 of its general comment on the implementation of article 3 of the Convention in the context of article 22, according to which ‘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’. Furthermore, the Committee notes that although Jordan is a party to the Convention, it has not made the declaration under article 22.112 As a result, the author would not have the possibility of submitting a new communication to the Committee if he was threatened with deportation from Jordan to Iraq.

Hence, the deportation to Jordan would have breached article 3, even though the author never alleged that he faced the risk of torture in Jordan. Rather, he feared subsequent deportation from Jordan to Iraq.113 [9.113]

SOGI v CANADA (CAT 297/06)

This case confirms that there are no national security exceptions to article 3. 112 113

Article 22 prescribes the individual complaints mechanism under CAT. See also RT v Australia (CAT 153/00).

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¶10.2. The Committee notes the complainant’s contention that the Minister’s delegate, in her decision of 2 December 2003, used irrelevant criteria as grounds for refusing protection, namely that the person constituted a threat to Canada’s security. The Committee recalls that article 3 affords absolute protection to anyone in the territory of a State party, regardless of the person’s character or the danger the person may pose to society. The Committee notes that the Minister’s delegate concluded in her decision that the complainant personally ran a real risk of torture if he were returned. However, she considered that the general interest of Canada’s security should prevail over the complainant’s risk of torture, and refused the protection on this basis. ¶10.3. The Committee also takes note of the complainant’s argument that, in the decision of 11 May 2006, the Minister’s delegate did not take into account the complainant’s particular situation, and in denying protection merely cited a supposed improvement in the general conditions in the Punjab. The State party replied to this argument by stating that it is not for the Committee to conduct a judicial review of the decisions of the Canadian courts, and that the Committee should not substitute its own findings for those of the Minister’s delegate, except in case of manifest error, abuse of process, bad faith, bias or serious procedural irregularities. The Committee recalls that, while it gives considerable weight to the findings of fact of the State party’s bodies, it is entitled to freely assess the facts of each case. In this case, the Committee notes that, in her protection decision of 11 May 2006, the Minister’s delegate denied the real, personal threat of torture based on the fresh assessment, and merely accepted that a new law had been adopted in India apparently protecting accused persons from torture, without regard to whether the law would effectively be implemented or how it would affect the complainant’s specific situation. ¶10.4. As for the Canadian authorities’ use of evidence that for security reasons was not divulged to the complainant, the Committee notes the State party’s argument that this practice is authorized by the Immigration and Refugee Protection Act, and that in any event such evidence did not serve as a basis for the decision by the Minister’s delegate, as she did not consider the threat the complainant posed to Canadian security in her assessment of the risks. However, the Committee notes that, in both her decisions, the delegate considered the threat to national security. ¶10.5 On the basis of the above, the Committee considers that the complainant did not enjoy the necessary guarantees in the pre-removal procedure. The State party is obliged, in determining whether there is a risk of torture under article 3, to give a fair hearing to persons subject to expulsion orders.

[9.114] In Brada v France (CAT 195/02), the CAT Committee found that the deportation of the complainant without allowing him his domestic right of appeal breached article 3. Indeed, his appeal proceeded after his expulsion, and the Court of Appeal found that his expulsion was unlawful.114 [9.115] In Iya v Switzerland (CAT 299/06), the CAT Committee found that the complainant’s asylum claim had been dismissed on procedural grounds and the merits had not been considered. No specific violation was found in that regard, but Switzerland’s failure to consider the merits contributed the CAT Committee’s

114

See also Tebourski v France (CAT 300/06).

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factual finding that expulsion to the Democratic Republic of the Congo was not permitted under article 3. [9.116] Cases concerning refoulement are usually made by asylum-seekers and persons claiming refugee status. These cases often raise issues concerning rights under the United Nations Convention relating to the Status of Refugees 1951. X v SPAIN (CAT 23/1995) X argued that his deportation from Spain to Algeria breached article 3, as he claimed that he would be tortured upon return due to his membership of the outlawed Front Islamique du Salut (FIS). The CAT Committee found in favour of the State Party: ¶7.3. The Committee . . . points out that its authority does not extend to a determination of whether or not the claimant is entitled to asylum under the national laws of a country, or can invoke the protection of the Geneva Convention relating to the Status of Refugees. Under article 3 of the Convention, the Committee must decide whether expulsion or extradition might expose an individual to the risk of being tortured. ¶7.4. The Committee notes that throughout a year of proceedings in Spain, X’s representatives based their arguments solely on asylum and did not invoke the right protected by article 3 of the Convention. Nor did they present the Committee with serious grounds for believing that X risked being tortured if he was expelled to Algeria. It is not alleged that X was detained or tortured in Algeria before leaving for Morocco and Spain; it is not indicated precisely what he did in FIS to justify his fear of being tortured. On the contrary, X said in his first statement to the Melilla authorities, with a lawyer and interpreter present, the intention was to seek work in Germany, and the truthfulness of that statement was questioned during the asylum proceedings in Spain. ¶7.5. The Committee concludes that the communication on behalf of X has not sufficiently [been] justified as regards the claimed violation of article 3 of the Convention but rather a matter of political asylum, making the communication incompatible with article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Similarly, CAT had no jurisdiction to determine whether the applicant was a ‘refugee’ under the 1951 Convention in Mohamed v Greece (CAT 40/96). The X and Mohamed cases confirm that determinations under article 3 CAT are conceptually separate from questions arising under the Refugee Convention.115 [9.117]

AEMEI v SWITZERLAND (34/95)

Article 3 CAT and article 7 ICCPR do not confer rights of asylum. CAT commented on remedies for article 3 breaches in this case: 115 The State Party made a similar argument in C v Australia (900/99), para 4.13. For a comparison of CAT/ICCPR and Refugee Convention protection from refoulement, see S Taylor, ‘Australia’s Implementation of its Non-Refoulement Obligations under the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights’ (1994) 17 University of New South Wales Law Journal 432.

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¶11. The Committee’s finding of a violation of article 3 of the Convention in no way affects the decision(s) of the competent national authorities concerning the granting or refusal of asylum. The finding of a violation of article 3 has a declaratory character. Consequently, the State party is not required to modify its decision(s) concerning the granting of asylum; on the other hand, it does have a responsibility to find solutions that will enable it to take all necessary measures to comply with the provisions of article 3 of the Convention. Those solutions may be of a legal nature (e.g., a decision to admit the applicant temporarily), but also of a political nature (e.g., action to find a third State willing to admit the applicant to its territory and undertaking in its turn not to return or expel him).

[9.118]

HAMIDA v CANADA (1544/07)

The author here had been a police officer in Tunisia, and claimed asylum in Canada. His claim was rejected, as he was suspected of crimes in Tunisia. Under the Refugee Convention, certain persons are excluded from refugee protection under Article 1F, namely people who have committed war crimes, crimes against peace, crimes against humanity, serious non-political crimes prior to admission to the country of refuge, or acts contrary to the purposes and principle of the United Nations. The HRC found that his expulsion would breach Article 7: ¶8.3. The Committee has taken note of the author’s submission that his expulsion would expose him to certain detention and to a risk of torture or disappearance. The Committee observes that these allegations have been refuted by the Immigration and Refugee Board (‘the Board’) which found that the author had not shown that, if he were to return to Tunisia, his life would be in jeopardy and that he was likely to be tortured or subjected to ill-treatment on the grounds of his political opinions. In addition, the Committee observes that the Board rejected the author’s asylum application on the grounds that the Convention relating to the Status of Refugees did not apply to him by virtue of article 1F (a) and (c), of that Convention. . . . ¶8.5. In the present communication the Committee observes that the material before it shows that, when the author’s claims were considered by the State party’s authorities, much weight was given to the fact that the Convention relating to the Status or Refugees did not apply to him and it appears that inadequate consideration was given to the specific rights of the author under the Covenant and such other instruments as the Convention Against Torture. . . . ¶8.7. As for article 7, the Committee observes that the State party, in its submissions, refers mainly to the decisions of various authorities which have rejected the author’s applications essentially on the grounds that he lacks credibility, having noted inconsistencies in his statements and the lack of evidence in support of his allegations. The Committee observes that the standard of proof required of the author is that he establishes that there is a real risk of treatment contrary to article 7 as a necessary and foreseeable consequence of his expulsion to Tunisia. The Committee notes that the State party itself, referring to a variety of sources, says that torture is known to be practised in Tunisia, but that the author does not belong to one of the categories at risk of such treatment. The Committee considers that the author has provided substantial evidence of a real and personal risk of his being subjected to treatment contrary to article 7 of the Covenant, on account of his dissent in the Tunisian police, his six-month police detention, the strict administrative surveillance to which he was subjected and the wanted notice issued against him by the Ministry of the Interior

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which mentions his ‘escape from administrative surveillance’. These facts have not been disputed by the State party. The Committee gives due weight to the author’s allegations regarding the pressure put on his family in Tunisia. Having been employed by the Ministry of the Interior, then disciplined, detained and subjected to strict surveillance on account of his dissent, the Committee considers that there is a real risk of the author being regarded as a political opponent and therefore subjected to torture. This risk is increased by the asylum application which he submitted in Canada, since this makes it all the more possible that the author will be seen as a regime opponent. The Committee therefore considers that the expulsion order issued against the author would constitute a violation of article 7 of the Covenant if it were enforced.

[9.119]

TAPIA PAEZ v SWEDEN (CAT 39/96)

The author challenged the State Party’s decision to expel him to Peru. The author claimed that he would be tortured upon return to Peru, as he was a member of ‘Sendero Luminoso’ (Shining Path), an anti-government terrorist organization in Peru. The HRC delivered the following merits decision: ¶14.3. The Committee notes that the facts on which the author’s asylum claim are based are not in dispute. The author is a member of Sendero Luminoso and on 1 November 1989 participated in a demonstration where he handed out leaflets and distributed handmade bombs. Subsequently, the police searched his house and the author went into hiding and left the country to seek asylum in Sweden. It is, further, beyond dispute that the author comes from a politically active family, that one of his cousins disappeared and another was killed for political reasons, and that his mother and sisters have been granted de facto refugee status by Sweden. ¶14.4. It appears from the State party’s submission and from the decisions by the immigration authorities in the instant case, that the refusal to grant the author asylum in Sweden is based on the exception clause of article 1F of the 1951 Convention relating to the Status of Refugees. This is illustrated by the fact that the author’s mother and sisters were granted de facto asylum in Sweden, since it was feared that they may be subjected to persecution because they belong to a family which is connected to Sendero Luminoso. No ground has been invoked by the State party for its distinction between the author, on the one hand, and his mother and sisters, on the other, other than the author’s activities for Sendero Luminoso. ¶14.5. The Committee considers that the test of article 3 of the Convention is absolute. Whenever substantial grounds exist for believing that an individual would be in danger of being subjected to torture upon expulsion to another State, the State party is under obligation not to return the person concerned to that State. The nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under article 3 of the Convention.

In contrast to the Convention Relating to the Status of Refugees 1951, article 7 ICCPR and article 3 CAT imposes absolute duties upon States not to extradite anybody, even war criminals and murderers, if their extradition would foreseeably result in their torture.116 The CAT Committee confirmed in Tebourski v France (CAT 116 Taylor, ‘Australia’s Implementation of its Non-Refoulement Obligations’, 452. See also Arkauz Arana v France (CAT 63/97), where the author’s deportation exposed him to likely torture owing to his terrorist links.

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300/06) that article 3 prevents the expulsion of anyone in danger of torture ‘regardless of the character of the person, in particular the danger he poses to society’.117 [9.120] In order to protect the rights in article 3 CAT, States must not institute procedures which automatically expel certain categories of people. For example, the CAT Committee has criticized Finnish authorities for utilizing a ‘list of safe countries’ automatically to deny asylum to people seeking refuge from those countries; each assessment should include consideration of the possible application of article 3.118 The HRC made similar comments regarding potential breaches of articles 7 and 13119 entailed in the automatic denial of asylum in Estonia to persons deemed to be from ‘safe’ countries of origin.120 [9.121] Violations of article 3 CAT arise on the basis that torture will foreseeably occur upon expulsion to a certain country. Normally such communications are brought, and decided, before deportation takes place, so there is no evidence on whether torture upon return has in fact taken place. Such evidence was apparently decisive in the following case. TPS v CANADA (CAT 99/97) The author, a convicted hijacker, was deported from Canada to India. By the time of the CAT Committee’s merits decision, the author had lived in India for over two years without apparently being subjected to torture. ¶15.4. As for the merits of the communication, the Committee notes that the author has been living in India for more than two years. During this time, although he claims to have been harassed and threatened, along with his family, on several occasions by the police, it seems that there has been no change in the manner in which he has been treated by the authorities. In these circumstances, and given the substantial period of time that has elapsed since the author’s removal, giving ample time for the fears of the author to have been realized, the Committee cannot but conclude that his allegations were unfounded. ¶15.5. The Committee is of the opinion that after a period of nearly two and a half years, it is unlikely that the author is still at risk of being subjected to acts of torture. . . . ¶15.7. The Committee against Torture, acting under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, concludes that the author’s removal to India by the State party does not constitute a breach of article 3 of the Convention.

The CAT Committee in TPS was surely wrong in deciding that the subsequent lack of torture necessarily meant that no violation arose. Article 3 does not demand that torture must occur upon return; it demands only that a risk of torture be reasonably foreseeable at the time of deportation.121 117

At para 8.2. CAT Concluding Observations on Finland (1997) UN doc A/51/44, para 62. 119 See also [13.03]–[13.04]. 120 Concluding Observations on Estonia (2003) UN doc CCPR/C/77/EST, para 13. See also New Zealand (2010) UN doc CCPR/C/NZL/CO/5, para 6. 121 See also the vigorous dissent in this case from Mr Camara. 118

274 [9.122]

The ICCPR ISD v FRANCE (CAT 194/01)

The complainant claimed asylum in France, but was instead returned to Spain. She was arrested 17 months after her return, and she claimed she was tortured. She claimed that France had breached article 3. The CAT Committee disagreed: ¶9.3. The issue before the Committee is whether, on the date of the enforcement of the removal measure, the French authorities could have considered that the complainant would be exposed to real risks in the event of her expulsion. In making a determination, the Committee takes into consideration all the facts submitted by the author and the State party. Consideration of the facts shows that the author has failed to satisfy the burden of proof and demonstrate in that expulsion to Spain placed her at personal risk of torture at the time of her expulsion. In this regard the evidence submitted by the author is insufficient, in that the primary focus is an allegation that she was tortured 17 months after being expelled from the State party. ¶9.4. The fact of torture does not, of itself, necessarily violate article 3 of the Convention, but it is a consideration to be taken into account by the Committee. The facts as submitted to the Committee show that the author, on her return to Spain, recovered her health without any interference and took an active part in political developments in the country, promoting her views without any need for secrecy or flight. Some 17 months went by before the alleged acts of torture. The author offers no convincing explanation of why her certain risk of torture, inter alia because of her familiarity with intelligence of vital importance to the security of the Spanish State, did not lead to immediate action against her. Neither does the author submit evidence concerning events in Spain prior to her expulsion from French territory that might lead the Committee to establish the existence of a substantiated risk. The author has not demonstrated any link between her expulsion and the events that took place 17 months later. ¶9.5. There being insufficient evidence of a causal link between the expulsion of the complainant in 1999 and the acts of torture to which she claims to have been subjected in 2001, the Committee considers that the State party cannot be said to have violated article 3 of the Convention in enforcing the expulsion order.

[9.123]

SOGI v CANADA (CAT 297/06)

The complainant was deported to India before the CAT Committee’s decision was handed down. A breach of article 3 was found. The CAT Committee said the following on the relevance of Sogi’s treatment upon return to India: ¶10.8. The Committee must determine whether there were substantial grounds to believe torture would occur in the light of the information the authorities of the State party were, or should have been, aware of at the time of removal. In this case, the Committee notes that all the information before it, in particular the Canadian Security and Intelligence Service (CSIS) report and the two pre-removal risk assessments (PRRA), showed that the complainant was suspected of being a member of BKI, an alleged terrorist organization, and that a number of attacks on Indian political leaders were attributed to him. The information obtained after removal, i.e., his detention and the ill-treatment to which he was allegedly subjected during his detention in Gurdaspur, is relevant only to assess what the State party actually knew, or could have deduced, about the risk of torture at the time the complainant was expelled.

Torture and Humane Treatment [9.124] In Concluding Observations on France, aspects of its procedure for expelling people:

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the HRC raised concerns over

¶20. . . . The Committee has . . . received reports that foreign nationals are often not properly informed of their rights, including the right to apply for asylum, and often lack access to legal assistance. The Committee notes that foreign nationals are required to submit asylum applications within a maximum of five days after their detention, and that such applications must be drafted in French, often without the help of a translator. The right of appeal is also subject to a number of questionable restrictions, including a 48-hour time limit to lodge an appeal, and absence of the automatic suspension of deportation pending appeal in ‘national security’ removals. The Committee is also concerned that under the State party’s so-called ‘priority procedure’ (procédure prioritaire), physical deportation occurs without waiting for the decision of any court in removals to so-called ‘safe countries of origin’ (pays d’origine sûr), apparently including Algeria and Niger. In addition, no recourse to the courts is available to persons deported from the overseas territory of Mayotte, involving some 16,000 adults and 3,000 children per year, nor in French Guiana or Guadeloupe (arts. 7 and 13). The State party should ensure that the return of foreign nationals, including asylum-seekers, is assessed through a fair process that effectively excludes the real risk that any person will face serious human rights violations upon his return. Undocumented foreign nationals and asylum-seekers must be properly informed and assured of their rights, including the right to apply for asylum, with access to free legal aid. The State party should also ensure that all individuals subject to deportation orders have an adequate period to prepare an asylum application, with guaranteed access to translators, and a right of appeal with suspensive effect. The State party should further recognize that the more systematic the practice of torture or cruel, inhuman or degrading treatment, the less likely it will be that a real risk of such treatment can be avoided by diplomatic assurances, however stringent any agreed follow-up procedure may be. The State party should exercise the utmost care in the use of such assurances and adopt clear and transparent procedures allowing review by adequate judicial mechanisms before individuals are deported, as well as effective means to monitor the fate of the affected individuals.

[9.125] The above discussion focuses on the harshness of the reception one might receive in a receiving country, rather than the harshness involved in being forced to leave the expelling country. The latter issue arose in the following case. CANEPA v CANADA (558/93) Canepa was an Italian citizen who had lived in Canada with his family for most of his life. Despite his ties to Canada, the Canadian authorities proposed to deport him because of his criminal record. Canepa claimed, inter alia, that this deportation would breach article 7: ¶4.6. Finally, the author contends that the enforcement of the deportation order amounts to cruel, inhuman and degrading treatment within the meaning of article 7 of the Covenant. He acknowledges that the Committee has not yet considered whether the permanent separation of an individual from his family and close relatives and the effective banishment of a person from the only country which he ever knew and in which he grew up can amount 122

(2008) UN doc CCPR/C/FRA/CO/4

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to cruel, inhuman or degrading treatment; he submits, however, that this issue should be considered on the merits.

The State Party responded thus: ¶9.1. By submission of 21 December 1995, the State party argues that the author’s allegations in respect to article 7 of the Covenant are not substantiated, since there is no evidence that the author’s separation from his family poses any particular risk to his mental or physical health. The State party argues that article 7 is not as broad in scope as contended by the author and does not apply to the present situation, where the author does not face a substantial risk of torture or of serious abuse in the receiving country. The author has not shown that he will suffer any undue hardship as a result of his deportation. The State party adds that the author is not absolutely barred from returning to Canada. Furthermore, the author’s family is apparently able to join the author in Italy, as indicated by the author’s father at the Immigration Appeal Board hearing. The State party argues that the question of separation from family is rather an issue to be dealt with under articles 17 and 23 of the Covenant.

The HRC later agreed with the State Party that ‘the facts of the instant case [were] not of such a nature as to raise an issue under article 7’.123 [9.126] The CAT Committee has stated on numerous occasions that the ‘aggravation of the condition of an individual’s physical or mental health through deportation is generally insufficient, in the absence of other factors, to amount to degrading treatment in violation of article 16’ of the CAT.124 Corporal Punishment [9.127]

GENERAL COMMENT 20

¶5. . . . In the Committee’s view . . . the [article 7] prohibition must extend to corporal punishment, including excessive chastisement ordered as punishment for a crime or as an educative or disciplinary measure. It is appropriate to emphasise in this regard that article 7 protects, in particular, children, pupils and patients in teaching and medical institutions.125

The HRC’s reference to ‘excessive chastisement’ indicates that corporal punishment is not per se a breach of article 7. However, the HRC may have hardened its position in the following case. [9.128]

HIGGINSON v JAMAICA (792/98)

¶6. . . . The author has claimed that the use of the tamarind switch constitutes cruel, inhuman and degrading punishment, and that the imposition of the sentence violated his rights 123 A similar complaint in Stewart v Canada (538/93) was also found inadmissible in respect of art 7, at para 11.2. Note also that withdrawal of custody rights was not found to raise art 7 issues in AJ v G v Netherlands (1142/02), para 5.6. 124 See eg TM v Sweden (CAT 228/03), para 6.2. See also GRB v Sweden (CAT 83/97), MMK v Sweden (CAT 221/02), MF v Sweden (CAT 326/2007), RD v Sweden (CAT 220/02), SSS v Canada (CAT 245/04), and Njamba and Balikosa v Sweden (CAT 322/07). 125 See also Concluding Observations on Sri Lanka (2003) UN doc CCPR/CO/79/LKA, para 12; Greece (2005) UN doc CCPR/CO/83/GRC, para 16; Tajikistan (2005) UN doc CCPR/CO/84/TJK, para 23; St Vincent and the Grenadines (2008) UN doc CCPR/C/VCT/CO/2, para 11; Nicaragua (2008) UN doc CCPR/C/NIC/CO/3, para 15.

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under article 7 of the Covenant. The State party has not contested the claim. Irrespective of the nature of the crime that is to be punished or the permissibility of corporal punishment under domestic law, it is the consistent opinion of the Committee that corporal punishment constitutes cruel, inhuman and degrading treatment or punishment contrary to article 7 of the Covenant. The Committee finds that the imposition or the execution of a sentence of whipping with the tamarind switch constitutes a violation of the author’s rights under article 7.

Thus, the HRC states that the execution and the mere imposition of a sentence of corporal punishment will breach article 7.126 Similarly, in Sooklal v Trinidad and Tobago (928/00), the HRC found that the imposition of a sentence of whipping (12 strokes) with the birch breached article 7.127 These decisions highlight an anomaly within the ICCPR. A sentence of death is likely to give rise to more mental distress than a sentence of corporal punishment, yet only the latter constitutes a breach of article 7 per se.128 This internal inconsistency within the ICCPR is forced upon the HRC by virtue of the fact that the graver punishment is explicitly allowed under article 6 ICCPR.129 [9.129] Corporal punishment also breaches CAT. In Zare v Sweden (CAT 256/04), the CAT Committee indicated that a sentence of 140 lashes would constitute ‘torture’ for the purposes of the non-refoulement obligation in article 3.130 [9.130] Furthermore, in Concluding Observations on Cyprus, the HRC stated that ‘corporal punishment is prohibited by the Covenant’, without any apparent qualification regarding the severity of such punishment.131 In Concluding Observations on Lesotho, the HRC recommended the abolition of all judicial corporal punishment, notwithstanding that such punishment was supervised by medical doctors.132 Finally, in Concluding Observations on Iraq, the HRC was deeply concerned about the amputation of hands and branding of convicts in Iraq.133 The comments regarding amputation as a punishment in an Islamic State indicate that ‘cultural’ defences to article 7 allegations will not be accepted by UN human rights treaty bodies.134

126 However, the case is confusing on this point, as the author indicates at para 3.3 that the sentence was carried out. The sentence was carried out in Pryce v Jamaica (793/98), and a breach of art 7 was duly found. 127 At para 4.6. At para 6, the HRC noted that the sentence had not yet been executed. See also Osbourne v Jamaica (759/97). 128 129 See [9.79]ff. See [8.46]ff. 130 No violation of art 3 was found as it was deemed unlikely that the sentence would be imposed if the complainant was returned to Iran. 131 Concluding Observations on Cyprus (1998) UN doc CCPR/C/79/Add.88, para 16. See also Matthews v Jamaica (569/93), para 6.5, and Concluding Observations on Libyan Arab Jamahiriya (1998) UN doc CCPR/C/79/Add.101, para 11; Barbados (2007) UN doc CCPR/C/BRB/CO/3, para 12. 132 (1999) UN doc CCPR/C/79/Add.106, para 20. 133 (1997) UN doc CCPR/C/79/Add.84, para 12. 134 See also the condemnation of amputation as a punishment in Concluding Observations on Libyan Arab Jamahiriya (1998) UN doc CCPR/C/79/Add.101, para 11; Yemen (2002) UN doc CCPR/CO/75/ YEM, para 16; Yemen (2005) UN doc CCPR/CO/84/YEM, para 16; Sudan (2007) UN doc CCPR/C/ SDN/CO/3, para 10 (including criticism of the payment of ‘blood money’ in exchange for less severe punishment). See also [1.131].

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278 Conditions of Detention

[9.131] The following cases relate to article 7 allegations regarding the conditions of the author’s detention. They may be distinguished from cases above such as Vuolanne [9.29] and Jensen [9.72], as those cases related to the alleged inhumanity entailed in detention per se. C v Australia [9.73] may also be distinguished, in that it related to the consequences of detention, rather than conditions as such. [9.132]

PORTORREAL v DOMINICAN REPUBLIC (188/84)

¶9.2. Mr. Ramon B. Martinez Portorreal is a national of the Dominican Republic, a lawyer and Executive Secretary of the Comite Dominicano de los Derechos Humanos. On 14 June 1984 at 6 a.m., he was arrested at his home, according to the author, because of his activities as a leader of a human rights association, and taken to a cell at the secret service police headquarters, from where he was transferred to another cell measuring 20 by 5 metres, where approximately 125 persons accused of common crimes were being held, and where, owing to lack of space, some detainees had to sit on excrement. He received no food or water until the following day. On 16 June 1984, after 50 hours of detention, he was released. At no time during his detention was he informed of the reasons for his arrest. . . . ¶11. The Human Rights Committee . . . is of the view that these facts disclose violations of the Covenant, with respect to: Articles 7 and 10, paragraph 1, because Ramon Martinez Portorreal was subjected to inhuman and degrading treatment and to lack of respect for his inherent human dignity during his detention. . . .

MUKONG v CAMEROON (458/91) In this case, the conditions of Mukong’s detention in prison entailed a violation of article 7. ¶9.3. As to the conditions of detention in general, the Committee observes that certain minimum standards regarding the conditions of detention must be observed regardless of a State party’s level of development. These include, in accordance with Rules 10, 12, 17, 19 and 20 of the U.N. Standard Minimum Rules for the Treatment of Prisoners, minimum floor space and cubic content of air for each prisoner, adequate sanitary facilities, clothing which shall be in no manner degrading or humiliating, provision of a separate bed, and provision of food of nutritional value adequate for health and strength. It should be noted that these are minimum requirements which the Committee considers should always be observed, even if economic or budgetary considerations may make compliance with these obligations difficult [9.46]. It transpires from the file that these requirements were not met during the author’s detention in the summer of 1988 and in February/March 1990. ¶9.4. The Committee further notes that quite apart from the general conditions of detention, the author has been singled out for exceptionally harsh and degrading treatment. Thus, he was kept detained incommunicado, was threatened with torture and death and intimidated, deprived of food, and kept locked in his cell for several days on end without the possibility of recreation. In this context, the Committee recalls its General Comment 20[44] which recommends that States parties should make provision against incommunicado detention and notes that total isolation of a detained or imprisoned person may amount to acts prohibited by article 7 . . . In view of the above, the Committee finds that Mr. Mukong has been subjected to cruel, inhuman and degrading treatment, in violation of article 7 of the Covenant.

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EDWARDS v JAMAICA (529/93) ¶8.3. With regard to the conditions of detention at St. Catherine’s District Prison, the Committee notes that in his original communication the author made specific allegations, in respect of the deplorable conditions of detention. He alleged that he was held for the period of 10 years alone in a cell measuring 6 feet by 14 feet, let out only for three and half hours a day, was provided with no recreational facilities and received no books. The State party made no attempt to refute these specific allegations. In these circumstances, the Committee takes the allegations as proven. It finds that holding a prisoner in such conditions of detention constitutes not only a violation article 10, paragraph 1, but, because of the length of time in which the author was kept in these conditions, also a violation of article 7.

BROWN v JAMAICA (775/97) ¶6.13. The author has, however, also complained about the circumstances of his detention at St. Catherine’s District Prison, which have not been addressed by the State party. In particular, he has stated that he is locked up in his cell for 23 hours a day, that he has no mattress or other bedding, no adequate sanitation, ventilation or electric lighting, and that he is denied exercise as well as medical treatment, adequate nutrition and clean drinking water. The author has also claimed that his belongings, including an asthma pump and other medication, were destroyed by the warders in March 1997, and that he has been denied prompt assistance in case of an asthma-attack . . . In the circumstances, due weight must be given to the author’s uncontested allegations to the extent that they are substantiated. The Committee finds that the above constitute violations of articles 7 and 10, paragraph 1, of the Covenant.

[9.133] In Concluding Observations on Japan, the HRC stated the following:135 ¶27. The Committee is deeply concerned at many aspects of the prison system in Japan which raise serious questions of compliance with articles 2, paragraph 3 (a), 7 and 10 of the Covenant. Specifically, the Committee is concerned with the following: (a) Harsh rules of conduct in prisons that restrict the fundamental rights of prisoners, including freedom of speech, freedom of association and privacy; (b) Use of harsh punitive measures, including frequent resort to solitary confinement; (c) Lack of fair and open procedures for deciding on disciplinary measures against prisoners accused of breaking the rules; (d) Inadequate protection for prisoners who complain of reprisals by prison warders; (e) Lack of a credible system for investigating complaints by prisoners; and (f) Frequent use of protective measures, such as leather handcuffs, that may constitute cruel and inhuman treatment.

[9.134] In one of the HRC’s first merits decision, Massera v Uruguay (5/77), the HRC found that ‘detention in conditions detrimental to [one’s] health’ constituted a breach of article 7. Nevertheless, the HRC has dealt with most cases regarding poor general conditions of detention under article 10(1), indicating that it has retreated from its Massera position.136 135

(1998) UN doc CCPR/C/79/Add.102. Ghandhi, ‘The Human Rights Committee and Articles 7 and 10(1) of the International Covenant on Civil and Political Rights, 1966’, 769. See [9.200]ff. 136

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280 [9.135]

WILSON v PHILIPPINES (868/99)

Violations of article 7, rather than article 10(1), tend to be found when a detainee is treated violently in detention [9.205], as occurred here:137 ¶7.3. As to the author’s claims under articles 7 and 10 regarding his treatment in detention and the conditions of detention, both before and after conviction, the Committee observes that the State party, rather than responding to the specific allegations made, has indicated that they require further investigation. In the circumstances, therefore, the Committee is obliged to give due weight to the author’s allegations, which are detailed and particularized. The Committee considers that the conditions of detention described, as well as the violent and abusive behaviour both of certain prison guards and of other inmates, as apparently acquiesced in by the prison authorities, are seriously in violation of the author’s right, as a prisoner, to be treated with humanity and in with respect for his inherent dignity, in violation of article 10, paragraph 1. As at least some of the acts of violence against the author were committed either by the prison guards, upon their instigation or with their acquiescence, there was also a violation of article 7.

Poor Medical Treatment in Detention [9.136]

HENRY and DOUGLAS v JAMAICA (571/94)

The two authors were on death row after a murder conviction. Henry was diagnosed with cancer but claimed he was still kept in harsh conditions. Douglas claimed that he was denied medical treatment to a gunshot wound while in prison. The HRC found that these circumstances breached article 7: ¶9.5. With regard to the authors’ claim of ill-treatment on death row, and in Mr. Henry’s case prior to his death, two separate issues arise: the ill-treatment each author was subjected to while detained on death row including, this is, in Mr. Henry’s case, being kept in a cold cell after being diagnosed for cancer, and in Mr Douglas’ case having medical problems caused by a gunshot wound. These allegations have not been contested by the State party. In the absence of a response from the State party, the Committee must give appropriate weight to these allegations, to the extent that they have been substantiated. In the opinion of the Committee, therefore, the conditions of incarceration under which Mr. Henry continued to be held until his death, even after the prison authorities were aware of his terminal illness, and the lack of medical attention, for the gunshot wounds, received by Mr. Douglas, reveal a violation of articles 7, and 10 paragraph 1, of the Covenant. As to Mr. Henry’s claim that he did not receive adequate medical attention for his cancer, the State party has forwarded a report which shows that the author did visit various hospitals and received medical treatment for his cancer, including chemotherapy. . . . In this respect the Committee finds that there has been no violation of articles 7 and 10, paragraph 1, of the Covenant on this count.

[9.137]

ROUSE v PHILIPPINES (1089/02)

The facts are evident from the HRC’s finding of violation of article 7: ¶7.8. As to the author’s claim under article 7, the Committee recalls that States parties are under an obligation to observe certain minimum standards of detention, which include 137

See also Robinson v Jamaica (731/97), para 10.3; Titiahonjo v Cameroon (1186/03), para 6.3.

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provision of medical care and treatment for sick prisoners, in accordance with rule 22 (2) of the Standard Minimum Rules for the Treatment of Prisoners. It is apparent from the author’s uncontested account that he suffered from severe pain due to aggravated kidney problems, and that he was not able to obtain proper medical treatment from the prison authorities. As the author suffered such pain for a considerable amount of time, from 2001 up to his release in September 2003, the Committee finds that he was the victim of cruel and inhuman treatment in violation of article 7. . . .

[9.138]

MARINICH v BELARUS (1502/06)

The facts are evident from the HRC’s finding of a violation of article 7: ¶10.3. The State party contested part of these allegations stating that the author underwent a medical examination and was prescribed a treatment. It submitted that the investigation conducted following the author’s complaint did not find any breaches of professional duties by the medical personnel of the colony No 8 and that he was transferred to colony No 1 due to his health condition. However, the State party did not comment on the deterioration of the author’s health while in detention and on the fact that he was not provided with required medication and immediate treatment after his stroke. The Committee notes that States parties are under an obligation to observe certain minimum standards of detention, which include provision of medical care and treatment for sick prisoners, in accordance with rule 22 of the Standard Minimum Rules for the Treatment of Prisoners. It is apparent from the author’s account as well as from the medical reports provided that he was in pain, and that he was not able to obtain the necessary medication and to receive proper medical treatment from the prison authorities. As the author stayed in prison for more than a year after his stroke and had serious health problems, in the absence of any other information, the Committee finds that he was the victim of violation of article 7 and article 10, paragraph 1, of the Covenant.

[9.139]

McCALLUM v SOUTH AFRICA (1818/08)

The author was in prison in South Africa. He claimed that the State’s refusal to test him for HIV was a breach of article 7. The HRC agreed: ¶6.6. With regard to the author’s complaint that despite several requests to various authorities he was not tested for HIV, which he feared to have contracted as a result of the incident of 17 July 2005 [a beating by warders],138 the Committee finds that the prevalence of HIV in South African prisons, as attested by the Committee against Torture in its concluding observations of the State party’s initial report, which had been brought to the Committee’s attention by the author, as well as the particular circumstances of the incident of 17 July 2005 warrants the finding of a violation of article 7, of the Covenant.

The author also complained about a lack of medical care for the injuries he sustained in the ‘incident of 17 July 2005’. The HRC found a breach of article 10(1) rather than article 7: ¶6.8. With regard to the author’s complaint alleging a denial to access to medical care after the author’s ill-treatment on 17 July 2005, the Committee notes the information in the author’s medical history, according to which he was taken to the prison hospital on 138

This beating also breached art 7 (para 6.4).

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31 August 2005. The Committee reiterates that persons deprived of their liberty may not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty, and that they must be treated in accordance with, inter alia, the United Nations Standard Minimum Rules for the Treatment of Prisoners. The Committee reiterates that it is the State party’s obligation to provide for the security and well-being of persons deprived of their liberty. It observes that despite the author’s request to see a doctor immediately after the incident of 17 July 2005, according to the medical record before the Committee, he received his first medical attention only on 31 August 2005. The Committee considers that the delay between the author’s request for medical examination and the prison authorities response is such that it amounts to a violation of the author’s rights under article 10, paragraph 1, of the Covenant.

Therefore, the failure by a State to provide medical care to prisoners is sometimes not grave enough to breach article 7, but may still breach article 10(1). [9.140] In Iskandarov v Tajikistan (1499/06), a violation of article 7 was found in respect of the State’s failure to provide adequate food and medical care (in respect of a condition contracted in detention) to a person in custody.139 Solitary Confinement and Detention Incommunicado [9.141] In General Comment 20, the HRC states that ‘prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7’.140 In Kang v Republic of Korea (878/99), the author was held in solitary confinement for 13 years. The HRC found a violation of article 10(1) without mentioning article 7 [9.219]. It is possible that the HRC was guided by the arguments of the author, who did not raise article 7. [9.142] Detention incommunicado is an aggravated form of detention where one is not necessarily in solitary confinement, but one is denied access to family, friends, and others (eg lawyers). In Polay Campos v Peru (577/94), detention incommunicado for one year constituted ‘inhuman treatment’,141 while continued solitary confinement for over three years also breached article 7.142 Eight months’ detention incommunicado in overcrowded, damp conditions in Shaw v Jamaica (704/96) constituted ‘inhuman and degrading treatment’.143 Two periods of incommunicado detention, one of four-and-a-half months and the other of 26 months, breached article 7 in Kulov v Kyrgysztan (1369/05).144 Other cases of detention incommunicado have been dealt with under article 10 [9.218].

At para 6.2. See also Smith and Stewart v Jamaica (668/95), para 7.5. At para 6. See also para 11 [9.151]. 141 At para 8.6. 142 At para 8.7. See also Marais v Madagascar (49/79) and El-Megreisi v Libyan Arab Jamahiriya (440/90). 143 At para 7.1. 144 At para 8.2. Two periods of incommunicado detention, one of four months and one of 11 months in a small cell, were part of a collection of abominable treatment of a person which was found to breach art 7 in El Hagog v Libya (1755/08) [9.27]. 139 140

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McCALLUM v SOUTH AFRICA (1818/05)

In this case, one month’s worth of incommunicado detention was found to breach article 7. This is the shortest period of time for which a period of such detention has been found to breach that provision: ¶6.5. Regarding the author’s claim that the St. Alban’s Correctional Facility was locked down after the incident of 17 July 2005 and that he was held incommunicado for a month without access to a physician, a lawyer or his family, the Committee recalls its General Comment No. 20 (1992) on the prohibition of torture or cruel, inhuman or degrading treatment or punishment, which recommends that States parties should make provisions against incommunicado detention and notes that the total isolation of a detained or imprisoned person may amount to an act prohibited by article 7. In view of this observation, the Committee finds an additional violation of article 7 of the Covenant.

[9.144] In contrast, a period of 40 days’ incommunicado detention was not, of itself, found to breach article 7 (though ill-treatment during that detention was found to breach article 7) in Boimurodov v Tajikistan (1042/01). Rather, violations of procedural rights in articles 9(3) and 14(3)(b) were found. The HRC has not been entirely consistent on the issue of incommunicado detention. Disappearances [9.145] The HRC has addressed many cases of enforced disappearance, where a person is kidnapped and his or her fate remains unknown. In many of these cases, a breach of the right to life has been found even though the death has not been confirmed [8.28]. It is also well recognized that disappearances cause such anguish to the victims’ loved ones that a breach of article 7 arises with regard to those loved ones [9.68]. The disappearance itself breaches the disappeared person’s rights under article 7, constituting an aggravated form of incommunicado detention which deprives them of contact with their families and lives.145 Of course, in many cases of disappearance, it seems likely that specific acts of torture may be visited upon the victim, though such acts are difficult to prove as the person has disappeared.146 Unauthorized Medical Experimentation [9.146] The last sentence of article 7 specifically prohibits subjection to medical or scientific experimentation without consent. This specific prohibition was a response to the atrocities of Nazi doctors in concentration camps during the Second World War.147 145 See eg Celis Laureano v Peru (540/1993), Tshishimbi v Zaire (542/1993), Saker v Algeria (992/01), Boucherf v Algeria (1196/03), Sharma v Nepal (1469/06), Madoui v Algeria (1495/06), El Alwani v Libyan Arab Jamahiriya (1295/04), El Hassy v Libyan Arab Jamahiriya (1422/05), Aboussedra v Libyan Arab Jamahiriya (1751/08), Bashasha v Libyan Arab Jamahiriya (1776/08), Benaziza v Algeria (1588/07), Aouabdia v Algeria (1780/08), Chihoub v Algeria (1811/08), Djebrouni v Algeria (1781/08). 146 See Grioua v Algeria (1327/04), para 7.6; Kimouche v Algeria (1328/04), para 7.6. 147 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 188–90, citing UN doc A/2929, 31, para 14.

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¶7. Article 7 expressly prohibits medical or scientific experimentation without the free consent of the person concerned. . . . The Committee . . . observes that special protection in regard to such experiments is necessary in the case of persons not capable of giving valid consent, and in particular those under any form of detention or imprisonment. Such persons should not be subjected to any medical or scientific experimentation that may be detrimental to their health.

The HRC has therefore indicated that vulnerable persons, like prisoners or other detainees, should never be subjected to potentially detrimental medical experimentation, as any consent given by such people is inherently suspect. [9.147] In Concluding Observations on the United States, the HRC stated the following:148 ¶31. The Committee notes that (a) waivers of consent in research regulated by the United States Department of Health and Human Services and the Food and Drug Administration may be given in case of individual and national emergencies; (b) some research may be conducted on persons vulnerable to coercion or undue influence such as children, prisoners, pregnant women, mentally disabled persons, or economically disadvantaged persons; (c) non-therapeutic research may be conducted on mentally ill persons or persons with impaired decision-making capacity, including minors; and (d) although no waivers have been given so far, domestic law authorizes the President to waive the prior informed-consent requirement for the administration of an investigational new drug to a member of the United States Armed Forces, if the President determines that obtaining consent is not feasible, is contrary to the best interests of the military members, or is not in the interests of United States national security (art. 7). The State party should ensure that it meets its obligation under article 7 of the Covenant not to subject anyone without his/her free consent to medical or scientific experimentation. . . . When there is doubt as to the ability of a person or a category of persons to give such consent, e.g. prisoners, the only experimental treatment compatible with article 7 would be treatment chosen as the most appropriate to meet the medical needs of the individual.

In Concluding Observations on the Netherlands, the HRC stated:149 ¶7. While it acknowledges that the State party’s Medical Research (Human Subjects) Act 1999 attempts to find a generally acceptable standard and to establish a permanent control system through the Central Committee for Medical Research Involving Human Subjects and the corresponding local committees accredited by the Central Committee, the Human Rights Committee considers aspects of this law to be problematic (article 7 of the Covenant). It is concerned at the general criterion whereby proportionality is assessed by balancing the risks of the research to the subject against the probable value of the research. The Committee considers that this rather subjective criterion must be qualified by a limitation beyond which the risks are so great to the individual that no measure of expected benefit can outweigh them. The Committee is also concerned that minors and other persons unable to give genuine consent may be subject to medical research under certain circumstances. 148 (2006) UN doc CCPR/C/USA/CO/3/Rev.1; see also Concluding Observations on the USA (1995) UN doc CCPR/C/79/Add.50, para 21. 149 (2001) UN doc CCPR/CO/72/NET.

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The State party should reconsider its Medical Research (Human Subjects) Act in the light of the Committee’s concerns, in order to ensure that even high potential value of scientific research is not used to justify severe risks to the subjects of research. The State party should further remove minors and other persons unable to give genuine consent from any medical experiments which do not directly benefit these individuals (non-therapeutic medical research). In its next report, the State party should inform the Committee of the steps taken and provide it with detailed statistics.

Eight years later, the HRC continued to have concerns over Dutch practices: ¶8. The Committee notes that medical experimentation involving minors is currently permissible in the State party in two cases: either where it would be of direct benefit to the child concerned or, instead, where the participation of children is a necessary component of the research and the experimentation is deemed to have a ‘negligible’ effect. Nevertheless, the Committee remains concerned that the law does not contain adequate safeguards in relation to medical experimentation requiring the involvement of children (arts. 7 and 24). The Committee reiterates its recommendation that the State party should ensure that minors are not subjected to any medical experiments which do not directly benefit the individual concerned (non-therapeutic research) and that safeguards in general are fully consistent with the rights of the child, including with regard to matters of consent.

[9.148] A prohibition on ‘medical experimentation’ is considerably narrower than a prohibition on medical ‘treatment’. Non-experimental medical treatment, even if given without consent, will have to reach a certain level of severity before violating article 7. Certainly, the sterilization of women without consent is a breach of article 7.150 [9.149]

BROUGH v AUSTRALIA (1184/03)

In this case, one of the claims related to the prescription of medicine to an incarcerated boy without his consent. The HRC found no violation of article 7: ¶9.5. As regards the prescription of anti-psychotic medication (‘Largactil’) to the author, the Committee takes note of his claim that the medication was administered to him without his consent. However, it also takes note of the State party’s uncontested argument that the prescription of Largactil was intended to control the author’s self-destructive behaviour. It recalls that the treatment was prescribed by the general practitioner at Parklea Correctional Centre and that it was only continued after the author had been examined by a psychiatrist. In the absence of any elements which would indicate that the medication was administered for purposes contrary to article 7 of the Covenant, the Committee concludes that its prescription to the author does not constitute a violation of article 7.

It therefore seems prescription of medical treatment without consent does not breach article 7. One might think, however, that such an invasion of a person’s integrity might breach other ICCPR provisions, notably the right to privacy in article 17. 150 Concluding Observations on Japan (1998) UN doc CCPR/C/79/Add.102, para 31; Peru (2000) UN doc CCPR/CO/70/PER, para 21; Slovakia (2003) UN doc CCPR/CO/78/SCK, para 12; Czech Republic (2007) UN doc CCPR/C/CZE/CO/2, para 10. See also Szijjarto v Hungary (CEDAW 4/04).

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DUTIES TO TRAIN APPROPRIATE PERSONNEL

[9.150]

GENERAL COMMENT 20

¶10. The Committee should be informed how States parties disseminate, to the population at large, relevant information concerning the ban on torture and the treatment prohibited by article 7. Enforcement personnel, medical personnel, police officers and any other persons involved in the custody or treatment of any individual subjected to any form of arrest, detention or imprisonment must receive appropriate instruction and training.151 States parties should inform the Committee of the instruction and training given and the way in which the prohibition of article 7 forms an integral part of the operational rules and ethical standards to be followed by such persons.

Article 10 CAT, reflects a similar duty. DUTIES TO INSTITUTE PROCEDURES TO MINIMIZE RISKS OF ‘ARTICLE 7 TREATMENT’

[9.151]

GENERAL COMMENT 20

¶11. In addition to describing steps to provide the general protection against acts prohibited under article 7 to which anyone is entitled, the State party should provide detailed information on safeguards for the special protection of particularly vulnerable persons. It should be noted that keeping under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment is an effective means of preventing cases of torture and ill-treatment. To guarantee the effective protection of detained persons, provisions should be made for detainees to be held in places officially recognised as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends. To the same effect, the time and place of all interrogations should be recorded, together with the names of all those present and this information should also be available for purposes of judicial or administrative proceedings. Provisions should also be made against incommunicado detention. In that connection, States parties should ensure that any places of detention be free from any equipment liable to be used for inflicting torture or ill-treatment. The protection of the detainee also requires that prompt and regular access be given to doctors and lawyers and, under appropriate supervision when the investigation so requires, to family members.

[9.152] A corresponding duty to review and instigate procedures for dealing with people in custody so as to minimize the possibility of ill-treatment is found in article 11 CAT. The HRC’s description of these duties and the above-mentioned training duties [9.150] indicate the sort of evidence States should produce to refute allegations of article 7 violations. Fulfilment of these essentially procedural duties helps to ensure that substantive violations of article 7 do not occur, and provide evidence that they have not occurred.152 151 See also Concluding Observations on the United States (2006) UN doc CCPR/C/USA/CO/3/ Rev.1, para 14; Hungary (2010) UN doc CCPR/C/HUN/CO/5, para 14. 152 See commentary on Hill and Hill v Spain (526/93) [9.228].

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HANAFI v ALGERIA (CAT 341/08)

This case, decided in November 2008, was the CAT Committee’s first finding of violation of Article 11:153 9.5. With regard to article 11, the Committee notes the complainant’s arguments that the victim was held at Mechraâ-Sfa gendarmerie for three days and was in perfect health before being detained; and that on his release from detention, he was in a serious state of health and was vomiting blood. The Committee notes that, according to the State party, the victim was released on 3 November 1998 because he was suffering from stomach pains; that the complaint mentions a period of three days in detention whereas the witnesses unanimously stated that it was one day; and that the autopsy report by the forensic medical examiner of the Tiaret health sector concluded that acute cardiac failure was the direct cause of death and there were no signs of a struggle or defence in either the external or the internal examination. The Committee is surprised at the State party’s statements, based on the statements of the fellow detainees of the victim, that reject the complainant’s allegations concerning the length of the period of detention. The Committee is also surprised that the only medical examination of the victim that seems to have taken place was carried out after his death; that the victim was released supposedly because he was suffering from stomach pains, whereas it was the responsibility of the officials in charge of the place of detention to conduct a medical examination if such symptoms appeared during the period of detention. In this regard, the Committee recalls its previous concluding observations to the State party, in which it recommended that the State party should ensure that the right of any detainee to have access to a doctor is respected in practice, and to establish a national register of prisoners. Given the lack of information provided by the State party on these issues and the arguments put forward in its observations, the Committee is obliged to find that the State party has failed in its obligations under article 11 of the Convention.

Duty to Prevent Detention Incommunicado [9.154] In paragraph 11 of General Comment 20, the HRC recognizes that detention incommunicado must be prevented in order to minimize the risks of breach of article 7 [9.151]. People who are detained incommunicado are highly vulnerable to ‘article 7 treatment’, as there are no procedural safeguards to ensure accountability and thus deter the perpetration of article 7 treatment. Continued detention incommunicado essentially amounts to a ‘disappearance’; the link between disappearances and article 7 was noted in the following case. MOJICA v DOMINICAN REPUBLIC (449/91) The HRC found that the State had failed to take specific and effective measures to prevent the disappearance of the author’s son. Indeed, there was strong evidence of State involvement in the disappearance. This case entailed numerous violations of the ICCPR,154 including a breach of article 7: ¶5.7. The circumstances surrounding Rafael Mojica’s disappearance, including the threats made against him, give rise to a strong inference that he was tortured or subjected to cruel 153 154

Compare Ben Salem v Tunisia (CAT 269/05) and Ali v Tunisia (CAT 291/06). See also [8.28].

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and inhuman treatment. Nothing has been submitted to the Committee by the State party to dispel or counter this inference. Aware of the nature of enforced or involuntary disappearances in many countries, the Committee feels confident to conclude that the disappearance of persons is inseparably linked to treatment that amounts to a violation of article 7.

[9.155] A distinction may be drawn between the Mojica decision, and those in Laureano v Peru (540/93), Tshishimbi v Zaire (542/93), and Shaw v Jamaica (704/96) [9.145]. The latter cases involved findings that detention incommunicado itself breached article 7, whereas in Mojica, the article 7 finding was linked to acts which presumably occurred during such detention. NON-USE OF STATEMENTS OBTAINED AFTER ARTICLE 7 TREATMENT IN JUDICIAL PROCEEDINGS

[9.156]

GENERAL COMMENT 20

¶12. It is important for the discouragement of violations under article 7 that the law must prohibit the use or admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.155

Article 7 in this respect complements article 14(3)(g). The corresponding guarantee in CAT is in article 15. [9.157]

KTITI v MOROCCO (CAT 419/00)

The case concerned the proposed extradition of the complainant from Morocco to Algeria. The evidence in favour of extradition was apparently based on the evidence of one MK, compelled under torture. The CAT Committee found as follows: ¶8.8. Regarding article 15, the Committee considers that it is central to the case and closely linked to the questions raised under article 3 of the Convention. The Committee recalls that the general nature of its provisions derives from the absolute nature of the prohibition of torture and therefore implies an obligation for each State party to ascertain whether or not statements included in an extradition procedure under its jurisdiction were made under torture. In this case, the Committee notes that the statements made by M.K., on which the extradition request was based, were allegedly obtained under torture; that the results of such physical abuse were verified by M.K.’s brother; and that the indictment issued on 7 October 2009 by the Assize Court of Constantine against M.K. states that M.K. claimed to have confessed under torture. The Committee notes that the State party has neither refuted any of these allegations nor included any information on this question in its observations to the Committee. The Committee considers that the State party was under an obligation to verify the content of the author’s allegations that the statements made by M.K. had been obtained under torture, and that by not verifying them, and by using them as evidence in the extradition proceedings, the State party violated its obligations under article 15 of the Convention. The Committee thus concludes that the evidence submitted to it discloses a violation of article 15 of the Convention.156 155 See also Concluding Observations on the United States (2006) UN doc CCPR/C/USA/CO/3/ Rev.1, para 14. 156 See also PE v France (CAT 193/01) and GK v France (CAT 219/02).

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[9.158] In Bazarov v Uzbekistan (959/00), the victim was convicted of various offences upon the evidence of others, who had allegedly been tortured into giving that evidence. The HRC therefore found that his trial was unfair, contrary to article 14(1) [14.80]. The victim in this case had not suffered a violation of article 7 though, presumably, the witnesses against him had. DUTIES TO REMEDY BREACHES OF ARTICLE 7

Duty to Pass and Enforce Legislation [9.159]

GENERAL COMMENT 20

¶13. States parties should indicate when presenting their reports the provisions of their criminal law which penalise torture and cruel, inhuman and degrading treatment or punishment, specifying the penalties applicable to such acts, whether committed by public officials or other persons acting on behalf of the State, or by private persons. Those who violate article 7, whether by encouraging, ordering, tolerating or perpetrating prohibited acts, must be held responsible. Consequently, those who have refused to obey orders must not be punished or subjected to any adverse treatment.

The duty to pass and enforce appropriate laws is reflected in articles 2(1) and 4 CAT.157 [9.160] Paragraph 13 of the General Comment again stresses the obligation for States to proscribe ‘article 7’ treatment by private persons [9.19]. For example, regarding Yemen in 1995, the HRC expressed concern about the State Party’s lack of laws dealing with domestic violence.158 Seven years later, the HRC noted that legislation had been adopted in Yemen to combat domestic violence, but that it had not been properly enforced.159 Furthermore, States Parties must also ensure that their laws do not permit unjustified defences for perpetrators of article 7 treatment, and that the gravity of an offence is sufficiently recognized in law. For example, regarding Peru, the HRC has stated:160 ¶15. The Committee notes with concern that the law still contains a provision exempting a rapist from punishment if he marries his victim and another which classifies rape as an offence prosecutable privately.

Duty to Investigate Allegations of Article 7 Treatment [9.161]

GENERAL COMMENT 20

¶14. Article 7 should be read in conjunction with article 2, paragraph 3, of the Covenant.161 In their reports, States parties should indicate how their legal system effectively guarantees 157

See also [9.176]ff. (1995) UN doc CCPR/C/79/Add.51, para 14; see also Concluding Observations on Mali (2003) UN doc CCPR/CO/77/MLI, para 12. 159 Concluding Observations on Yemen (2002) UN doc CCPR/CO/75/YEM, para 6; see also Concluding Observations on Sweden (2002) UN doc CCPR/CO/74/SWE, para 7. 160 Concluding Observations on Peru (1996) UN doc CCPR/C/79/Add.67. 161 See [25.11]ff. 158

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the immediate termination of all the acts prohibited by article 7 as well as appropriate redress. The right to lodge complaints against maltreatment prohibited by article 7 must be recognised in the domestic law. Complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective. The reports of States parties should provide specific information on the remedies available to victims of maltreatment and the procedure that complainants must follow, and statistics on the number of complaints and how they have been dealt with.

[9.162]

ZHEIKOV v RUSSIAN FEDERATION (889/99)

The author claimed that he was assaulted by police. He also claimed that Russian authorities had failed to properly investigate the incident. The HRC agreed: ¶7.2. The Committee has noted the author’s claim that on 20 February 1996, he was ill-treated by person(s) acting in an official capacity . . . The State party’s prosecutorial authorities have conducted several investigations into the author’s allegations, which confirmed that he was detained and acknowledged that physical force was applied to him in accordance with the law. . . . The Committee recalls that a State party is responsible for the security of any person it deprives of liberty and, where an individual deprived of liberty receives injuries in detention, it is incumbent on the State party to provide a plausible explanation of how these injuries occurred and to produce evidence refuting these allegations. It also recalls its jurisprudence that the burden of proof cannot rest alone on the author of the communication, especially considering that the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to relevant information. It is implicit in article 4 (2) of the Optional Protocol that the State party has the duty to investigate in good faith all allegations of violation of the Covenant made against it and its authorities, and to furnish to the Committee the information available to it. In this case, the State party does not deny that force was used against the author, and that investigations have thus far failed to identify those responsible . . . although the resolution of 7 April 1996 mentioned the names of the duty officers, and that the author has not been afforded an effective remedy, in form of proper investigations into his treatment. The Committee thus concludes that the lack of adequate investigation into the author’s allegations of ill-treatment amounted to a violation of article 7 of the Covenant, read together with article 2.

[9.163]

KALAMIOTIS v CYPRUS (1486/06)

This case again concerned allegations of beatings by police. The facts are evident from the HRC’s finding of violation: ¶7.2. With regard to the alleged violation of article 2, paragraph 3 in conjunction with article 7 of the Covenant, the Committee notes that the author filed a criminal complaint before the Athens Misdemeanours’ Prosecutor on 2 July 2001 and that the Prosecutor forwarded the complaint to the Magistrate of Koropi to conduct a criminal investigation. However, the Magistrate declined to investigate for lack of competence without providing any explanation for his decision. The Committee also notes that disciplinary proceedings were not instituted either and that the only inquiry carried out was in the form of a preliminary police investigation. As confirmed by the State party, such investigation was of an informal nature, and neither the author nor the witnesses cited by him were ever heard. Finally, the case was disposed of by the Judicial Council of Misdemeanours which, on the basis of the police investigation, decided not to file charges against the accused. This decision was

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taken following a procedure in which the author was not allowed to participate and the concerned police officer’s statement was used as the principal basis for coming to a decision. ¶7.3. The Committee recalls its jurisprudence that complaints against maltreatment must be investigated promptly and impartially by competent authorities and that expedition and effectiveness are particularly important in the adjudication of cases involving allegations of torture and other forms of mistreatment. In view of the manner in which the author’s complaint was investigated and decided, as described in the previous paragraph, the Committee is of the view that the requisite standard was not met in the present case. Accordingly, the Committee finds that the State party has violated article 2, paragraph 3 read together with article 7 of the Covenant.

[9.164]

ESHONOV v RUSSIAN FEDERATION (1225/03)

The complaint concerned the alleged torture and murder of the authors’ son in State custody. The State had tried to claim the son died of natural causes. The HRC found otherwise in deciding that there was a violation of the right to life [8.12]. The HRC went on to find violations of article 7 as well: ¶9.7. The Committee observes that in the present case the arguments provided by the author point towards the State party’s direct responsibility for his son’s death by torture and, inter alia, necessitated at the very minimum a separate independent investigation of the potential involvement of the State party’s law-enforcement officers in the torture and death of the author’s son. The Committee considers, therefore, that the State party’s failure to, inter alia, exhume the body of the author’s son and to properly address any of the author’s claims raised at the domestic level and in the context of the present communication about inconsistencies between injuries on his son’s body and the explanations advanced by the State party’s authorities, warrant the finding that there has been a violation7 of article 6, paragraph 1, and article 7, of the Covenant, with regard to the author’s son. ¶9.8. The author also claimed that his son’s death resulted from torture to which he was subjected by law-enforcement officers in the course of interrogations and the inadequate investigation conducted by the State party’s authorities is an attempt to conceal the crimes committed by its agents. These allegations were presented both to the State party’s authorities and in the context of the present communication. The Committee recalls that a State party is responsible for the security of any person under detention and, when an individual is injured while in detention, it is incumbent on the State party to produce evidence refuting the author’s allegations. Moreover, once a complaint about ill-treatment contrary to article 7 has been filed, a State party must investigate it promptly and impartially. Where investigations reveal violations of certain Covenant rights, States parties must ensure that those responsible are brought to justice. ¶9.9. The Committee notes that, in addition to the above-mentioned official forensic medical report, the State party referred to the testimony of the author’s son and those of his cellmates, in support of its argument that the author’s son had never been subjected to torture and other inhuman treatment by law-enforcement officers and medical personnel. The State party, however, did not provide any information as to whether any inquiry was undertaken by the authorities both in the context of the criminal investigations or in the context of the present communication to address the detailed and specific allegations advanced by the author in a substantiated way. In these circumstances, due weight must be given to the author’s allegations. The Committee considers, therefore, that the above factors, taken

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together, lead it to conclude that the State party’s investigations into the highly suspicious circumstances of the death of the author’s son in the State party’s custody just nine days after his arrest by officers of the National Security Service, were inadequate, in the light of the State party’s obligations under article 6, paragraph 1, and article 7, read in conjunction with article 2, of the Covenant. In the Committee’s view, therefore, there has been a violation of article 6, paragraph 1, and article 7, read in conjunction with article 2, of the Covenant, with regard to the author’s son.

[9.165] Other cases in which this ‘investigation’ obligation has been breached include Zyuskin v Russian Federation (1496/06) and Amirov v Russian Federation (1447/06). [9.166]

ALZERY v SWEDEN (1416/05)

As noted above, Sweden breached article 7 in acquiescing in the mistreatment of the author by foreign agents during the process of expelling him to Egypt [9.13]. Its investigation of the matter proceeded as follows: ¶3.25. On 21 March 2005, the Parliamentary Ombudsman reported on his proprio motu investigation into pre-expulsion aspects of the author’s case, revealing serious shortcomings in the way the case was handled by the Security Police, in respect of whom the Ombudsman expressed extremely grave criticism. The author himself was not a party to this investigation, but his former Swedish counsel was interviewed by the Ombudsman. The mandate of the Ombudsman was to investigate if the Swedish Security Police had committed any crime or in any other way acted unlawfully during the execution of the expulsion order. Early in the proceedings the Ombudsman elected not to conduct a criminal investigation. The Ombudsman does not give reasons for this decision but the State party suggests that the reasons seem related to the fact that there was no senior official of the Security Police who had been assigned command of the Bromma operation, that the officials present had relatively subordinate ranks and that none of them felt that they bore the ultimate responsibility for the operation and that they might have felt under pressure given the urgency accorded by the Cabinet to prompt execution the day the decision had been taken. Counsel disagrees, citing media comments by the Ombudsman that the earlier prosecutorial decision not to initiate criminal proceedings had been an important factor in his own decision. Whatever the reason, due to the election not to conduct a criminal investigation, the Ombudsman was able to procure compulsory testimony for informational purposes from police officers, whose testimony could otherwise have been withheld on grounds of the right to be free from criminal self-incrimination. ¶3.26. In his conclusions, the Ombudsman criticized the failure of the Security Police to maintain control over the situation at Bromma airport, allowing foreign agents free hand in the exercise of public authority on Swedish soil. Such relinquishment of public authority was unlawful. The expulsion was carried out in an inhuman and unacceptable manner. The treatment was in some respects unlawful and overall had to be characterized as degrading. It was questionable whether there was also a breach of article 3 of the European Convention. In any event, the Security Police should have intervened to prevent the inhuman treatment. In the Ombudsman’s view, the way in which the Security Police had dealt with the case was characterised throughout by passivity—from the acceptance of the offer of the use of an American aircraft until completion of the enforcement. One example cited was the failure of the Security Police to ask for information about what the security check

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demanded by the Americans would involve. The Ombudsman also criticised inadequate organisation, finding that none of the officers present at Bromma airport had been assigned command of the operation. The officers from the Security Police who were there had relatively subordinate ranks. They acted with remarkable deference to the American officials. Regarding the foreign agents, the Ombudsman considered that he lacked legal competence for initiating prosecution. ¶3.27. On 4 April 2005, the Swedish Prosecutor-General decided not to resume the preliminary investigation, following a complaint from the Helsinki Committee for Human Rights (Swedish Section). With reference inter alia to the powers of the Parliamentary Ombudsmen to prosecute, the obligation of courts, administrative authorities and state/ municipal officials to provide the Ombudsmen with any requested information and the powers of the Prosecutor-General to inter alia review the decisions of a subordinate prosecutor, the conclusion was reached that it was not possible to review the Parliamentary Ombudsman’s decision to refrain from using his powers to prosecute. It could also be seriously questioned whether the Prosecutor-General could make a new assessment of the issue of whether to start or resume a preliminary criminal investigation when the matter had already been determined by the Parliamentary Ombudsman. This was the situation, particularly if no new circumstances were at hand. The Prosecutor-General went on to state that, in any event, several of the persons that would have to give statements within the framework of a resumed preliminary criminal investigation had already been interviewed by the Parliamentary Ombudsman and submitted information under the obligation to state the truth provided by Swedish law for such proceedings. Therefore, the option to conduct a preliminary investigation under the Code of Judicial Procedure was no longer available.

Despite the Parliamentary Ombudsman’s criticism of the behaviour of Swedish Security Police during the execution of the deportation, the HRC found a breach of article 7 in conjunction with article 2 in relation to the investigation: ¶11.7. As to the claim under article 7 relating to the effectiveness of the State party’s investigation into the treatment suffered at Bromma airport, the Committee notes that the State party’s authorities were aware of the mistreatment suffered by the author from the time of its occurrence; indeed its officials witnessed the conduct in question. Rather than submit conduct whose criminal character was plainly well arguable to the appropriate authorities, the State party waited over two years for a private criminal complaint before engaging its criminal process. In the Committee’s view, that delay alone was insufficient to satisfy the State party’s obligation to conduct a prompt, independent and impartial investigation into the events that took place. The Committee further notes that as a result of the combined investigations of the Parliamentary Ombudsman and the prosecutorial authorities, neither Swedish officials nor foreign agents were the subject of a full criminal investigation, much less the initiation of formal charges under Swedish law whose scope was more than capable of addressing the substance of the offences. In particular, the Committee notes that the decision of the Parliamentary Ombudsman to effect an informational investigation including substantial compelled testimony. While the thoroughness of the investigation for that purpose is not in doubt, the systemic effect was to seriously prejudice the likelihood of undertaking effective criminal investigations at both command and operational levels of the Security Police. In the Committee’s view, the State party is under an obligation to ensure that its investigative apparatus is organised in a manner which preserves the capacity to investigate, as far as possible, the criminal responsibility of all relevant officials, domestic and foreign, for conduct in breach of article 7 committed within its jurisdiction and to bring

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the appropriate charges in consequence. The State party’s failure to so ensure in this case amounts to a violation of the State party’s obligations under article 7, read in conjunction with article 2 of the Covenant.

[9.167] In Concluding Observations on the United States, the HRC has stated:162 ¶14. The Committee notes with concern shortcomings concerning the independence, impartiality and effectiveness of investigations into allegations of torture and cruel, inhuman or degrading treatment or punishment inflicted by United States military and non-military personnel or contract employees, in detention facilities in Guantánamo Bay, Afghanistan, Iraq, and other overseas locations, and to alleged cases of suspicious death in custody in any of these locations. . . . The State party should conduct prompt and independent investigations into all allegations concerning suspicious deaths, torture or cruel, inhuman or degrading treatment or punishment inflicted by its personnel (including commanders) as well as contract employees, in detention facilities in Guantánamo Bay, Afghanistan, Iraq and other overseas locations. . . .

In Concluding Observations on Hungary, the HRC criticized ‘the lack of an independent medical examination body to examine alleged victims of torture’, and ‘the presence of law enforcement personnel during the conduct of medical examinations even when such presence is not requested by the examining medical personnel’.163 [9.168] The corresponding duty in CAT is reflected in articles 12 and 13. Examples of CAT cases in which violations of these provisions have been found are Blanco Abad v Spain (CAT 59/96), Baraket v Tunisia (CAT 60/96), Dzemajl et al v Yugoslavia (CAT 161/00), Osmani v Republic of Serbia (CAT 261/05), Thabti v Tunisia (CAT 187/01), Abdelli v Tunisia (CAT 188/01), Ltaief v Tunisia (CAT 189/01), Ben Salem v Tunisia (CAT 269/05), Hanafi v Algeria (CAT 341/08), Ali v Tunisia (CAT 291/06), and Gerasimov v Kazakhstan (CAT 433/10). [9.169]

HALIMI-NEDZIBI v AUSTRIA (CAT 8/91)

The author was arrested in April 1988 and charged with drug trafficking. The author made various allegations of torture and other ill-treatment by police during their investigations. The CAT Committee agreed with the author that the State Party had failed adequately to investigate his allegations of ill treatment: ¶13.5. It remains to be determined whether the State party complied with its duty to proceed to a prompt and impartial investigation of the author’s allegations that he had been subjected to torture, as provided in article 12 of the Convention. The Committee notes that the author made his allegations before the investigating judge on 5 December 1988. Although the investigating judge questioned the police officers about the allegations on 16 February 1989, no investigation took place until 5 March 1990, when criminal proceedings against the police officers were instituted. The Committee considers that a delay of 15 months before an investigation of allegations of torture is initiated, is unreasonably long and not in compliance with the requirement of article 12 of the Convention.

162 163

(2006) UN doc CCPR/C/USA/CO/3/Rev.1. (2010) UN doc CCPR/C/HUN/CO/5, para 14.

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The Halimi-Nedzibi decision is particularly interesting, as the CAT Committee had earlier found that the actual allegations of ill treatment were not sustained.164 Thus, the duty to investigate allegations of torture under CAT is completely independent of the duty not to torture. [9.170]

KEREMEDCHIEV v BULGARIA (CAT 257/04)

The CAT Committee outlined faults in the State Party’s investigation of the alleged ill-treatment (on which, see [9.37]) in its finding of violation of article 12: ¶9.4. As to the claim of a violation of article 12, while noting that the State party did conduct a prompt investigation into the incident in question, an investigation in itself is not sufficient to demonstrate the State party’s conformity with its obligations under this provision if it can be shown not to have been conducted impartially. In this regard, the Committee notes the claims, uncontested by the State party, that one of the doctors in question had been requested by the police authorities not to provide the complainant with a medical report and that the Prosecutor had failed to summon certain witnesses. It also notes that the Prosecutor’s office arrived at the same interpretation of the medical reports as the domestic courts themselves, to the extent that the complainant had suffered from a ‘slight physical injury’, an interpretation already contested by the Committee in its finding of a violation of article 16 above [9.xx]. For these reasons, the Committee considers that the State party has also violated article 12 of the Convention.

In finding that the investigation was inadequate, the CAT Committee cited its own finding that a breach of article 16 had in fact occurred as evidence that a breach of article 12 had occurred. The CAT Committee should be mindful not to confuse the substantive CAT obligations (eg prohibitions on torture and other ill-treatment) with the procedural obligations of a State (duty to investigate allegations of breaches of substantive obligations). An adverse finding by CAT in respect of a substantive breach is certainly evidence of breach of a procedural obligation, but must not be conclusive of the matter. It is hypothetically possible for a proper investigation to be conducted by a State, and for the findings of that investigation to differ from those of the CAT Committee regarding the occurrence of an instance of torture or other ill-treatment. [9.171]

PAROT v SPAIN (CAT 6/90)

This case involves a finding of no violation of article 13. Here, the CAT Committee describes a process of investigation which satisfied the provision’s requirements: ¶10.2. In the case under consideration the author of the communication states that, on 7 April 1990, . . . her brother Henri Parot complained that he had been tortured by the Guardia Civil on the days immediately following his arrest, and that this complaint was never considered by the authorities of the State party. ¶10.3. The State party has denied that the alleged ill treatment took place and has stated that Mr. Parot’s allegations were investigated by the prison and court authorities with negative results. 164

At para 13.4.

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¶10.4. The Committee notes that, in principle, article 13 of the Convention does not require the formal submission of a complaint of torture. It is sufficient for torture only to have been alleged by the victim for the state to be under an obligation promptly and impartially to examine the allegation. ¶10.5. It is the Committee’s view that the State party considered and rejected the allegation of torture made by Mr. Parot in the above-mentioned statement of 7 April 1990. The judgement of the Audiencia Nacional of 18 December 1990 dealt expressly with the said complaint and rejected it on the basis of the five medical examinations that were carried out at the time of the alleged torture and the statements made by Parot himself to the Seville medical examiner, which statements were never denied. . . . ¶10.6. The Committee considers that where complaints of torture are made during court proceedings it is desirable that they be elucidated by means of independent proceedings. Whether or not such action is taken will depend on the internal legislation of the State party concerned and the circumstances of the specific case. ¶10.7. There are no grounds for Mr. Parot or the author of the communication to challenge the procedure followed in this case by the State party, since not only did Mr. Parot have the benefit of full assistance by counsel during the trial but he also made frequent exercise of his right to make other charges and complaints, which were also considered by the authorities of the State. ¶11. The Committee against Torture therefore concludes that the State party did not violate the rule laid down in article 13 of the Convention . . .

[9.172] The HRC has stressed the need for impartial, preferably external, investigations of allegations of brutality by the military and/or the police in a number of Concluding Observations.165 Regarding Hong Kong, the HRC stated:166 ¶11. [The HRC] notes that the investigation of [complaints of human rights abuses by police] rests within the Police Force itself rather than being carried out in a manner that ensures its independence and credibility. In light of the high proportion of complaints against police officers which are found by investigating police to be unsubstantiated, the Committee expresses concern about the credibility of the investigation process and takes the view that investigation into complaints of abuse of authority by members of the Police Force must be, and must appear to be, fair and independent and therefore must be entrusted to an independent mechanism.167

[9.173] Of course, one should not be subject to victimization because one has made a complaint about one’s treatment. In this respect, the HRC has noted with concern that in Brazil:168 ¶12. . . . [w]here members of State security forces are accused of human rights violations witnesses are not afforded protection against reprisals, intimidation, threats and harassment. . . .

165 See eg Concluding Observations on the United Kingdom (1995) UN doc CCPR/C/79/Add.5, para 14; Chile (1999) UN doc CCPR/C/79/Add.104, para 10. 166 (1996) UN doc CCPR/C/79/Add.57. See also Concluding Observations on Zambia (1996) UN doc CCPR/C/79/Add.62, para 12; Vietnam (2002) UN doc CCPR/CO/75/VNM, para 11. 167 (1996) UN doc CCPR/C/79/Add.66, para 22. 168 (1996) UN doc CCPR/C/79/Add.66.

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Duty to Compensate Victims [9.174] Victims of torture must be compensated, including ‘the means for as full rehabilitation as possible’, under article 14 CAT.169 Dzemajl et al v Yugoslavia (CAT 161/00) provides an example of a violation of this provision. In that case, it was confirmed that the duty to provide compensation also extends to victims of cruel and inhuman treatment in breach of article 16, rather than only torture victims.170 An analogous duty exists under the ICCPR.171 [9.175] In Concluding Observations on Bosnia and Herzegovina, the HRC stated:172 ¶15. The Committee notes with concern that, under the Federation Law on the Basics of Social Care, Protection of Civil Victims of War and Protection of Families with Children, torture victims, with the exception of victims of rape and sexual violence, must prove at least 60 per cent bodily harm in order to be recognized as civilian victims of war, and that this requirement may exclude victims of mental torture from personal disability benefits. . . .

Duty to Punish Offenders [9.176] The perpetrators of torture, or cruel, inhuman, or degrading treatment, must be appropriately punished. [9.177]

RAJAPAKSE v SRI LANKA (1250/04)

The author claimed that he was beaten by police after being arrested. Domestic proceedings in respect of those beatings had gone on for many years. The HRC found a breach of article 7 in conjunction with article 2(3) in respect of the State’s failure to properly bring matters to a conclusion: ¶9.3. With regard to the merits of the communication, the Committee notes that criminal proceedings, against one of the alleged perpetrators, have been pending in the High Court since 2004,173 and that the author’s fundamental rights application before the Supreme Court has been adjourned, pending determination of the High Court proceedings. The Committee reiterates its jurisprudence that the Covenant does not provide a right for individuals to require that the State party criminally prosecute another person. It considers, nevertheless, that the State party is under a duty to investigate thoroughly alleged violations of human rights, and to prosecute and punish those held responsible for such violations. ¶9.4. The Committee observes that, as the delay in the author’s fundamental rights application to the Supreme Court is dependent upon the determination of the High Court case, the delay in determining the latter is relevant for its assessment of whether the author’s rights under the Covenant were violated. It notes the State party’s argument that the author is currently availing himself of domestic remedies. The Committee observes that the 169 See eg Ben Salem v Tunisia (CAT 269/05), Hanafi v Algeria (CAT 341/08), Ali v Tunisia (CAT 291/06), and Gerasimov v Kazakhstan (CAT 433/10). 170 See also Osmani v Republic of Serbia (CAT 261/05), para 10.8. 171 See also Concluding Observations on the United States (2006) UN doc CCPR/C/USA/CO/3/ Rev.1, para 14. 172 (2006) UN doc CCPR/C/BIH/CO/1. 173 The HRC issued its merits decision on 14 July 2006.

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criminal investigation was not initiated by the Attorney General until over three months after the incident, despite the fact that the author had to be hospitalised, was unconscious for 15 days, and had a medical report describing his injuries, which was presented to the Magistrates Court on 17 May 2002. While noting that both parties accuse each other of responsibility for certain delays in the hearing of this case, it would appear that inadequate time has been assigned for its hearing, viewed in light of the numerous court appearances held over a period of two years, since the indictments were served (four years since the alleged incident), and the lack of significant progress (receipt of evidence from one out of 10 witnesses). The State party’s argument on the High Court’s large workload does not excuse it from complying with its obligations under the Covenant. The delay is further compounded by the State party’s failure to provide any timeframe for the consideration of the case, despite its claim that, following directions from the Attorney General, Counsel for the prosecution requested the trial judge to expedite the case. ¶9.5. Under article 2, paragraph 3, the State party has an obligation to ensure that remedies are effective. Expedition and effectiveness are particularly important in the adjudication of cases involving torture. The general information provided by the State party on the workload of the domestic courts would appear to indicate that the High Court proceedings and, thus, the author’s Supreme Court fundamental rights case will not be determined for some time. The Committee considers that the State party may not avoid its responsibilities under the Covenant with the argument that the domestic courts are dealing with the matter, when it is clear that the remedies relied upon by the State party have been prolonged and would appear to be ineffective. For these reasons, the Committee finds that the State party has violated article 2, paragraph 3, in connection with 7 of the Covenant. Having found a violation of article 2, paragraph 3, in connection with article 7, and in light of the fact that the consideration of this case, as it relates to the claim of torture, remains pending before the High Court, the Committee does not consider it necessary, in this particular case, to determine the issue of a possible violation of article 7 alone of the Covenant.

Therefore, justice must not only be delivered, it must be delivered reasonably expeditiously.174 It is also noteworthy that the HRC refused to accept Sri Lanka’s argument that the delays were partially caused by resource constraints in its judicial system. [9.178] In Concluding Observations on the United States, the HRC has stated:175 ¶14. . . . The Committee regrets that the State party did not provide sufficient information regarding the prosecutions launched, sentences passed (which appear excessively light for offences of such gravity) and reparation granted to the victims (arts. 6 and 7). . . . The State party should ensure that those responsible are prosecuted and punished in accordance with the gravity of the crime. . . .

[9.179] In Concluding Observations on Denmark, the State was praised for removing the application of its statute of limitations to the crime of torture.176

See also Banda v Sri Lanka (1426/05) and Gunaratna v Sri Lanka (1432/05) [25.23]. (2006) UN doc CCPR/C/USA/CO/3/Rev.1. (2008) UN doc CCPR/C/DNK/CO/5, para 4(b). See also Concluding Observations on El Salvador (2010) UN doc CCPR/C/SLV/CO/6, para 6. 174 175 176

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GURIDI v SPAIN (CAT 212/02)

Three civil guards were found guilty in Spain of the author’s torture in 1997. However, they were pardoned in 1999. The CAT Committee found breaches of the Convention: ¶6.6. As to the alleged violation of article 2 of the Convention, the Committee notes the complainant’s argument that the obligation to take effective measures to prevent torture has not been honoured because the pardons granted to the civil guards have the practical effect of allowing torture to go unpunished and encouraging its repetition. The Committee is of the view that, in the circumstances of the present case, the measures taken by the State party are contrary to the obligation established in article 2 of the Convention, according to which the State party must take effective measures to prevent acts of torture. Consequently, the Committee concludes that such acts constitute a violation of article 2, paragraph 1, of the Convention. The Committee also concludes that the absence of appropriate punishment is incompatible with the duty to prevent acts of torture. ¶6.7. With regard to the alleged violation of article 4, the Committee recalls its previous jurisprudence to the effect that one of the purposes of the Convention is to avoid allowing persons who have committed acts of torture to escape unpunished. The Committee also recalls that article 4 sets out a duty for States parties to impose appropriate penalties against those held responsible for committing acts of torture, taking into account the grave nature of those acts. The Committee considers that, in the circumstances of the present case, the imposition of lighter penalties and the granting of pardons to the civil guards are incompatible with the duty to impose appropriate punishment. The Committee further notes that the civil guards were not subject to disciplinary proceedings while criminal proceedings were in progress, though the seriousness of the charges against them merited a disciplinary investigation. Consequently, the Committee considers that there has been a violation of article 4, paragraph 2, of the Convention. ¶6.8. As to the alleged violation of article 14, the State party indicates that the complainant received the full amount of compensation ordered by the trial court and claims that the Convention has therefore not been violated. However, article 14 of the Convention not only recognizes the right to fair and adequate compensation but also imposes on States the duty to guarantee compensation for the victim of an act of torture. The Committee considers that compensation should cover all the damages suffered by the victim, which includes, among other measures, restitution, compensation, and rehabilitation of the victim, as well as measures to guarantee the non-repetition of the violations, always bearing in mind the circumstances of each case. The Committee concludes that there has been a violation of article 14, paragraph 1, of the Convention.

[9.181] In its Concluding Observations regarding Spain in 1996, the HRC was concerned over the lenient sentences given to police officers convicted of human rights abuses: ¶10. [W]hen members of the security forces are found guilty of [ill-treatment and even torture] and sentenced to deprivation of liberty, they are often pardoned or released early, or simply do not serve their sentences. Moreover, those who perpetrate such deeds are seldom suspended from their functions for any length of time.177 177

(1996) UN doc CCPR/C/79/Add.61.

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Thus, perpetrators of article 7 treatment must not only be punished, but must incur adequate penalties.178 [9.182] In Concluding Observations on Israel, the HRC was concerned over the availability of a defence of necessity to persons charged with using improper techniques for interrogating suspected terrorists.179 The HRC stated: ¶18. . . . The State party should review its recourse to the ‘necessity defence’ argument and provide detailed information to the Committee in its next periodic report, including detailed statistics covering the period since the examination of the initial report. It should ensure that alleged instances of ill-treatment and torture are vigorously investigated by genuinely independent mechanisms, and that those responsible for such actions are prosecuted. The State party should provide statistics from 2000 to the present day on how many complaints have been made to the Attorney-General, how many have been turned down as unsubstantiated, how many have been turned down because of the defence of necessity applied and how many have been up-held, and with what consequences for the perpetrators.

Amnesties [9.183]

GENERAL COMMENT 20

¶15. The Committee has noted that some States have granted amnesty in respect of acts of torture. Amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible.

[9.184] The HRC’s condemnation of amnesties expressly applies only in regard to torturers, rather than perpetrators of other article 7 treatment. However, the general obligation to provide redress for victims and to punish their tormentors may effectively prohibit amnesties for people who have treated others in an inhuman or degrading fashion. The issue of amnesty laws arose in the following case. [9.185]

RODRIGUEZ v URUGUAY (322/88)

The author submitted that he had been subjected to torture by Uruguayan police in June 1983. He was detained from June 1983 to December 1984. In 1985, a new government replaced the military junta in Uruguay. The author complained about the failure of this new government to provide him with any redress for the human rights violations that had occurred under the previous regime.

178 See also the criticism of ‘inadequacy of sanctions against police and prison officers’ in Concluding Observations on Italy (1998) CCPR/C/79/Add.94, para 13. See also Concluding Observations on Serbia (2011) UN doc CCPR/C/SRB/CO/2, para 11. See also Kibaya v Democratic Republic of the Congo (1483/06) [25.17]. 179 (2003) UN doc CCPR/CO/78/ISR. The defence was fashioned in The Public Committee Against Torture in Israel v The Government of Israel et al (HCJ 5100/94), decision of 6 September 1999.

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¶2.2. The author states that during his detention and even thereafter, until the transition from military to civilian rule, no judicial investigation of his case could be initiated. After the re-introduction of constitutional guarantees in March 1985, a formal complaint was filed with the competent authorities. On 27 September 1985, a class action was brought before the Court of First Instance (Juzgado Letrado de Primera Instancia en lo Penal de 4 Turno) denouncing the torture, including that suffered by the author, perpetrated on the premises of the secret police. The judicial investigation was not, however, initiated because of a dispute over the court’s jurisdiction, as the military insisted that only military courts could legitimately carry out the investigations. At the end of 1986, the Supreme Court of Uruguay held that the civilian courts were competent, but in the meantime, the Parliament had enacted, on 22 December 1986, Law No. 15,848, the Limitations Act or Law of Expiry (Ley de Caducidad) which effectively provided for the immediate end of judicial investigation into such matters and made impossible the pursuit of this category of crimes committed during the years of military rule. The complaint: ¶3. The author denounces the acts of torture to which he was subjected as a violation of article 7 of the Covenant and contends that he and others have been denied appropriate redress in the form of investigation of the abuses allegedly committed by the military authorities, punishment of those held responsible and compensation to the victims. In this context, he notes that the State party has systematically instructed judges to apply Law No. 15,848 uniformly and close pending investigations; the President of the Republic himself allegedly advised that this procedure should be applied without exceptions. The author further contends that the State party cannot, by simple legislative act, violate its international commitments and thus deny justice to all the victims of human rights abuses committed under the previous military régime.

The State Party defended its amnesty law: ¶8.2. The State party emphasises that Law No. 15,848 on the lapsing of State prosecutions was endorsed in 1989 by referendum, ‘an exemplary expression of direct democracy on the part of the Uruguayan people’. Moreover, by decision of 2 May 1988, the Supreme Court declared the Law to be constitutional. It maintains that the law constitutes a sovereign act of clemency that is fully in accord and harmony with the international instruments on human rights. ¶8.3. It is argued that notions of democracy and reconciliation ought to be taken into account when considering laws on amnesty and on the lapsing of prosecutions. . . . ¶8.6. With regard to the author’s contention that Law No. 15,848 ‘frustrates any attempt to obtain compensation, as the enforcement of the law bars an official investigation of his allegations’ the State party asserts that there have been many cases in which claims similar to that of the author have succeeded in civil actions and that payment has been obtained.

On the merits, the HRC initially found that the author had been tortured by the military regime in Uruguay in violation of article 7. It made the following comments about the State’s amnesty law: ¶12.2. As to the appropriate remedy that the author may claim pursuant to article 2, paragraph 3, of the Covenant, the Committee finds that the adoption of Law No. 15,848 and

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subsequent practice in Uruguay have rendered the realisation of the author’s right to an adequate remedy extremely difficult. ¶12.3. The Committee cannot agree with the State party that it has no obligation to investigate violations of Covenant rights by a prior régime, especially when these include crimes as serious as torture. Article 2, paragraph 3(a) of the Covenant clearly stipulates that each State party undertakes ‘to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity’. In this context the Committee refers to its General Comment No. 20 on article 7 . . . which provides that allegations of torture must be fully investigated by the State. . . . The State party has suggested that the author may still conduct private investigations into his torture. The Committee finds that the responsibility for investigations falls under the State party’s obligation to grant an effective remedy. Having examined the specific circumstances of this case, the Committee finds that the author has not had an effective remedy. ¶12.4. The Committee moreover reaffirms its position that amnesties for gross violations of human rights and legislation such as the Law No. 15,848, Ley de Caducidad de la Pretensión Punitiva del Estado are incompatible with the obligations of the State party under the Covenant. The Committee notes with deep concern that the adoption of this law effectively excludes in a number of cases the possibility of investigation into past human rights abuses and thereby prevents the State party from discharging its responsibility to provide effective remedies to the victims of those abuses. Moreover, the Committee is concerned that, in adopting this law, the State party has contributed to an atmosphere of impunity which may undermine the democratic order and give rise to further grave human rights violations. . . . ¶13. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, is of the view that the facts before it disclose a violation of article 7, in connection with article 2, paragraph 3, of the Covenant. ¶14. The Committee is of the view that Mr. Hugo Rodríguez is entitled, under article 2, paragraph 3(a), of the Covenant, to an effective remedy. It urges the State party to take effective measures (a) to carry out an official investigation into the author’s allegations of torture, in order to identify the persons responsible for torture and ill-treatment and to enable the author to seek civil redress; (b) to grant appropriate compensation to Mr. Rodríguez; and (c) to ensure that similar violations do not occur in the future.

[9.186] It has been confirmed in numerous cases that the ICCPR contains no independent right to see another prosecuted.180 However, the duty to investigate alleged violations of the ICCPR may on occasion entail a duty to prosecute a certain person.181 On the other hand, prosecution was not a ‘remedy’ specified by the HRC in Rodriguez, perhaps a concession to the democratic credentials of the amnesty law. [9.187] In numerous cases concerning disappearances in Algeria, the HRC has criticized that country’s impunity statute. This issue is addressed at [25.25].

180 181

See eg HCMA v Netherlands (213/1986), SE v Argentina (275/1988). In this respect, see [8.26]; see also Vicente et al v Colombia (612/95), paras 8.2–8.3.

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The HRC has also consistently condemned impunity statutes in its Concluding Observations on numerous States Parties.182 CAT has similarly condemned amnesty statutes183 and States with a culture of impunity.184 UNIVERSAL JURISDICTION OVER TORTURERS

[9.188] Articles 4 to 9 CAT prescribe duties with respect to the exercise of State jurisdiction over alleged torturers caught within their territorial jurisdiction. Article 4 requires States to ensure that all acts of torture are offences under their criminal law (including complicity and participation in torture). Those offences should attract ‘appropriate penalties which take into account their grave nature’. Articles 5 and 7 work together to ensure that States must prosecute the perpetrators of article 4 crimes when the crime takes place within jurisdiction, when the perpetrator is a national of the State, or when a perpetrator is found within jurisdiction, unless the States decides to extradite the person to a State that will prosecute the individual. Article 6 obliges States to take alleged torturers into custody if there is sufficient evidence warranting the allegations. Article 8 specifies that torture is an extraditable offence. Article 9 specifies that States Parties will afford each other ‘the greatest measure of assistance in connection with criminal proceedings brought in respect of’ torture. [9.189] Thus, States Parties may exercise jurisdiction to prosecute an alleged torturer, even in the absence of a territorial or personal link to the crime.185 Secondly, the CAT requires States Parties to either exercise its jurisdiction to refer the case of an alleged torturer to its competent authorities for the purpose of prosecution, or to extradite that person to a State where he/she will be prosecuted.186 Of course, certain procedural safeguards are guaranteed to the alleged torturer. For example, a State Party is not required to prosecute or extradite an alleged torturer in the absence of adequate evidence of that person’s guilt.187

182 See Concluding Observations on El Salvador (1994) UN doc CCPR/C/79/Add.34, para 7; Bolivia (1998) UN doc CCPR/C/79/Add.73, para 15; Lebanon (1998) UN doc CCPR/C/79/Add.78, para 12; Chile (1999) UN doc CCPR/C/79/Add.104, para 7; Sudan, (1997) UN doc CCPR/C/79/Add.85, para 17; Cambodia (1999) UN doc CCPR/C/79/Add.108, para 6; Argentina (2000) UN doc CCPR/CO/70/ ARG, para 9; Colombia (2004) UN doc CCPR/CO/80/COL, para 8. 183 See eg CAT Concluding Observations on Senegal, UN doc A/51/44, para 112. 184 See eg CAT Concluding Observations on Colombia, UN doc A/51/44, para 80. 185 A territorial link arises where the crime occurs within a State’s territory. A personal link arises where the victim or perpetrator is a national of that State. See M Lippman, ‘The Development and Drafting of the United Nations Convention Against Torture and other Cruel Inhuman and Degrading Treatment or Punishment’ (1994) 17 Boston College International and Comparative Law Review 275, 316–17. 186 See also Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement, 177–235; Burgers and Danelius, The United Nations Convention Against Torture, 129–41. See Bouzari v Islamic Republic of Iran [2002] Carswell Ont 1469, decision of the Ontario Supreme Court of Justice on 1 May 2002, finding that CAT does not require States Parties to provide for a civil cause of action for tortures committed outside their territory (see paras 43–56). 187 See art 6(1) CAT.

304 [9.190]

The ICCPR GUENGUENG v SENEGAL (CAT 181/01)

The complainants were Chadian residents who claimed to have been tortured under the regime of the then President of Chad, Hissène Habré. Habré was ousted in 1990 and fled to Senegal. The complaint concerned Senegal’s failure to either prosecute Habré for torture or extradite him to a country that would do so. Senegal argued that it lacked the domestic legislative basis to try Habré. The CAT Committee found that Senegal had breached CAT: ¶9.3. On the merits, the Committee must determine whether the State party violated article 5, paragraph 2, and article 7 of the Convention. It finds—and this has not been challenged—that Hissène Habré has been in the territory of the State party since December 1990. In January 2000, the complainants lodged with an examining magistrate in Dakar a complaint against Hissène Habré alleging torture. On 20 March 2001, upon completion of judicial proceedings, the Court of Cassation of Senegal ruled that ‘no procedural text confers on Senegalese courts a universal jurisdiction to prosecute and judge, if they are found on the territory of the Republic, presumed perpetrators of or accomplices in acts [of torture] . . . when these acts have been committed outside Senegal by foreigners; the presence in Senegal of Hissène Habré cannot in itself justify the proceedings brought against him’. The courts of the State party have not ruled on the merits of the allegations of torture that the complainants raised in their complaint. ¶9.4. The Committee also notes that, on 25 November 2005, the Indictment Division of the Dakar Court of Appeal stated that it lacked jurisdiction to rule on Belgium’s request for the extradition of Hissène Habré. ¶9.5. The Committee recalls that, in accordance with article 5, paragraph 2, of the Convention, ‘each State Party shall [. . .] take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him [. . .]’. It notes that, in its observations on the merits, the State party has not contested the fact that it had not taken ‘such measures as may be necessary’ in keeping with article 5, paragraph 2, of the Convention, and observes that the Court of Cassation itself considered that the State party had not taken such measures. It also considers that the reasonable time frame within which the State party should have complied with this obligation has been considerably exceeded. ¶9.6. The Committee is consequently of the opinion that the State party has not fulfilled its obligations under article 5, paragraph 2, of the Convention. ¶9.7. The Committee recalls that, under article 7 of the Convention, ‘the State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution’. It notes that the obligation to prosecute the alleged perpetrator of acts of torture does not depend on the prior existence of a request for his extradition. The alternative available to the State party under article 7 of the Convention exists only when a request for extradition has been made and puts the State party in the position of having to choose between (a) proceeding with extradition or (b) submitting the case to its own judicial authorities for the institution of criminal proceedings, the objective of the provision being to prevent any act of torture from going unpunished.

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¶9.8. The Committee considers that the State party cannot invoke the complexity of its judicial proceedings or other reasons stemming from domestic law to justify its failure to comply with these obligations under the Convention. It is of the opinion that the State party was obliged to prosecute Hissène Habré for alleged acts of torture unless it could show that there was not sufficient evidence to prosecute, at least at the time when the complainants submitted their complaint in January 2000. Yet by its decision of 20 March 2001, which is not subject to appeal, the Court of Cassation put an end to any possibility of prosecuting Hissène Habré in Senegal. ¶9.9. Consequently and notwithstanding the time that has elapsed since the initial submission of the communication, the Committee is of the opinion that the State party has not fulfilled its obligations under article 7 of the Convention. ¶9.10. Moreover, the Committee finds that, since 19 September 2005, the State party has been in another situation covered under article 7, because on that date Belgium made a formal extradition request. At that time, the State party had the choice of proceeding with extradition if it decided not to submit the case to its own judicial authorities for the purpose of prosecuting Hissène Habré. ¶9.11. The Committee considers that, by refusing to comply with the extradition request, the State party has again failed to perform its obligations under article 7 of the Convention.

In noting that Senegal had a reasonable time frame within which they should have complied with article 5(2), the CAT Committee seemed to indicate that States do not have to comply immediately with their obligations regarding universal jurisdiction. In this case, however, the CAT Committee found that 15 years went beyond a reasonable time frame for implementation of these obligations. The CAT Committee also confirmed that the article 7(1) obligation, to either prosecute or extradite an alleged torturer, applied irrespective of whether the State party had received an extradition request. The CAT Committee ruled that the obligation to prosecute always exists, unless the possibility of extradition is open. At the time of the complaint was submitted, no extradition request was pending. Such a request had been made (by Belgium) by the time of the decision.188 [9.191]

ROSENMANN v SPAIN (CAT 176/00)

The author, a Spanish citizen, claimed that he was subjected to torture in Chile under the regime of General Pinochet. In 1998, a Spanish judge sought to extradite Pinochet from the United Kingdom, where he was receiving medical treatment. The author’s complaint concerned the failure by Spanish executive authorities to support the Spanish judiciary in its efforts to extradite Pinochet. Indeed, the executive authorities repeatedly informed the United Kingdom that they would not appeal any decision not to extradite the general, nor would they transmit any appeal by Spanish judicial authorities.

188 See also Questions Concerning the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012, International Court of Justice (unpublished, available at , accessed November 2012). At the time of writing, Senegal had agreed to set up a special court to try Hissène Habré.

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¶3.1. The complainant argues that under Spanish law the judicial authorities are in control of the extradition process and that the Executive has the obligation to comply with the judicial authorities. He claims that in the case at hand, by failing to follow the instructions of the judicial authorities and promptly forward the relevant documents to the British counterpart, the Spanish Minister for Foreign Affairs obstructed the extradition process and did not act in an impartial manner, in contravention of articles 8, 9, 13 and 14 of the Convention. . . . ¶3.3. The complainant also invokes article 9, paragraph 1, of the Convention, which stipulates that ‘States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of any of the offences referred to in article 4’. It is argued that Spain’s handling of the extradition process failed to meet this requirement.

The HRC found in favour of the State Party: ¶6.3. The Committee notes that the State party’s objections to the admissibility of the communication are essentially fourfold: [the Committee outlined three reasons and then added] (d) lack of competence ratione materiae, since no article of the Convention imposes an obligation on a State party to demand extradition of a person suspected of torture. . . . ¶6.7. With respect to (d), the Committee observes that the State party possesses extraterritorial jurisdiction over acts of torture committed against its nationals. The Committee recalls that one of the objects of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is to avoid any impunity to persons having committed such acts. The Committee observes that, based upon the State party’s law, and in conformity with articles 5, paragraph 1 (c), and 8, paragraph 4, of the Convention, the State party sought the extradition of General Pinochet for trial in Spain. There is every indication that Spain would have brought General Pinochet to trial, once he were to be found on its territory, further to the indictment of 4 July 1996 of the Juez Central de la Audiencia Nacional de España. The Committee observes, however, that while the Convention imposes an obligation to bring to trial a person, alleged to have committed torture, who is found in its territory, articles 8 and 9 of the Convention do not impose any obligation to seek an extradition, or to insist on its procurement in the event of a refusal. In this connection, the Committee refers to article 5, paragraph 1 (c), of the Convention, pursuant to which a State party shall take the necessary measures to establish its jurisdiction over the offences referred to in article 4 ‘when the victim is a national of that State if that State considers it appropriate’. The Committee considers this provision to establish a discretionary faculty rather than a mandatory obligation to make, and insist upon, an extradition request. Accordingly, the complaint falls ratione materiae outside the scope of the articles of the Convention invoked by the complainant.

Thus, a State is not required to seek the extradition of a torturer, even though there are obligations either to prosecute or to extradite torturers upon request.189 [9.192] It is uncertain, and perhaps unlikely in the absence of explicit provisions, that the ICCPR confers any duties upon States with regard to the exercise of universal jurisdiction over alleged torturers.

189

See also the vigorous dissent from Mr Guibril Camara.

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Article 10 1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; (b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

[9.193] Article 10(1) of the ICCPR guarantees that States treat people in detention with humanity and dignity. Article 10(2) and (3) reinforces specific aspects of this right. Article 10 seems to prohibit a less serious form of treatment than that prohibited by article 7. It provides extra protection for a particularly vulnerable group, people deprived of their liberty. Finally, an important distinction between articles 7 and 10 is that the latter is a derogable right. However, the HRC has itself suggested that Article 10 is de facto non-derogable.190 [9.194] Article 10 complements article 9. While the latter article regulates the reasons for which one may be detained, article 10 regulates the conditions of such detention. MEANING OF ‘PERSONS DEPRIVED OF THEIR LIBERTY’

[9.195]

GENERAL COMMENT 21

¶2. Article 10, paragraph 1, of the International Covenant on Civil and Political Rights applies to anyone deprived of liberty under the laws and authority of the State who is held in prisons, hospitals—particularly psychiatric hospitals—detention camps or correctional institutions or elsewhere. States parties should ensure that the principle stipulated therein is observed in all institutions and establishments within their jurisdiction where persons are being held.

Paragraph 2 of the General Comment confirms that article 10(1) regulates conditions in all forms of detention. In Mpandanjila et al v Zaire (138/83), the HRC even found a breach of article 10(1), entailed in ill-treatment suffered during a ‘period of banishment’. Nowak has noted with regard to Mpandanjila that the ‘supervision and isolation from the environment were so severe that the situation was more comparable to detention than banishment’.191 PRIVATE DETENTION INSTITUTIONS

[9.196] Article 10(1) obviously applies to State-run detention institutions. However, General Comment 21 makes clear that States are responsible for all detention 190 191

See [26.69]. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 244.

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facilities ‘within their jurisdiction’ [9.195]. Numerous States, such as the United Kingdom and Australia, now authorize the detention of persons in privately-run institutions. As such detention is still ‘under the law and authority of the State’, it is presumed that such detentions are within the ambit of article 10(1).192 [9.197] The HRC has quizzed the United Kingdom193 on the ‘contracting out’ of operations dealing with detainees: ¶17. The Committee is concerned that the practice of the State party in contracting out to the private commercial sector core State activities which involve the use of force and the detention of persons weakens the protection of rights under the Covenant. The Committee stresses that the State party remains responsible in all circumstances for adherence to all articles of the Covenant. ¶26. The Committee recommends that the use of the private commercial sector in the detention, transport and deportation of prisoners be reviewed and that, pending its termination, no further detention tasks be contracted out by the Government. The State party should ensure that all those who are involved in the detention of prisoners be made fully aware of the international obligations on the State party concerning the treatment of detainees, including the United Nations Standard Minimum Rules for the Treatment of Prisoners.

This comment implies that article 10(1) rights apply in privately-run institutions of detention. However, the HRC recognized that less State control can be realistically exercised over such institutions, and it therefore expressed a preference that States do not ‘privatize’ operations dealing with detainees. [9.198] In Concluding Observations on New Zealand, the HRC expressed its scepticism over the ICCPR compatibility of private detention facilities:194 ¶13. The Committee notes with concern that the management of one prison and prison escort services have been contracted to a private company. While welcoming the information that the State party has decided that all prisons will be publicly managed after the expiry of the current contract in July 2005 and that the contractors are expected to respect the United Nations Minimum Standards for the Treatment of Prisoners, it nevertheless remains concerned about whether the practice of privatization, in an area where the State is responsible for protecting the rights of persons whom it has deprived of their liberty, effectively meets the obligations of the State party under the Covenant and its own accountability for any violations. The Committee further notes that there does not appear to be any effective mechanism of day-to-day monitoring to ensure that prisoners are treated with humanity and with respect for the inherent dignity of the human person and further benefit from treatment, the essential aim of which is directed to their reformation and social rehabilitation. The State party should ensure that all persons deprived of their liberty are not deprived of the various rights guaranteed under article 10 of the Covenant.

In 2010, the HRC reiterated its concerns with New Zealand:195

192 194

193 See also [22.64]. (1995) CCPR/C/79/Add. 55. 195 (2002) UN doc CCPR/CO/75/NZL. (2010) UN doc CCPR/C/NZL/CO/5.

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¶11. While noting the steps taken by the State party to address the risk of human rights violations in relation with the Corrections (Contract Management of Prisons) Amendment Bill 2009, the Committee reiterates its concern at the privatization of prison management. It remains concerned as to whether such privatization in an area where the State party is responsible for the protection of human rights of persons deprived of their liberty effectively meets the obligations of the State party under the Covenant and its accountability for any violations, irrespective of the safeguards in place (arts. 2 and 10). The State party should ensure that all persons deprived of their liberty are guaranteed all rights enshrined in the Covenant. In particular, all measures of privatization of prison management should continue to be closely monitored with a view to ensuring that under no circumstances can the State party’s responsibility for guaranteeing to all persons deprived of their liberty all Covenant rights, in particular those under article 10, be impeded.

[9.199] In Cabal and Pasini Bertran v Australia (1020/02), the complaints concerned, inter alia, the treatment of the authors within a private detention facility. The HRC reiterated that ‘the contracting out to the private commercial sector of core State activities which involve the use of force and the detention of persons does not absolve the State party of its obligations under the Covenant, notably articles 7 and 10 . . .’ . Therefore, the State was ‘accountable under the Covenant and the Optional Protocol of the treatment of inmates in the Port Philip facility run by Group 4’.196 MINIMUM CONDITIONS OF DETENTION

[9.200]

GENERAL COMMENT 21

¶3. Article 10, paragraph 1, imposes on States parties a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of liberty, and complements for them the ban on torture or other cruel, inhuman or degrading treatment or punishment contained in article 7 of the Covenant. Thus, not only may persons deprived of their liberty not be subjected to treatment that is contrary to article 7, including medical or scientific experimentation, but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment. ¶4. Treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule. Consequently, the application of this rule, as a minimum, cannot be dependent on the material resources available in the State party.197 This rule must be applied without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. ¶5. States parties are invited to indicate in their reports to what extent they are applying the relevant United Nations standards applicable to the treatment of prisoners: the Standard Minimum Rules for the Treatment of Prisoners (1957), the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), 196

At para 7.2.

197

See also [1.133] and [9.46].

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the Code of Conduct for Law Enforcement Officials (1978) and the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1982).

[9.201] In Concluding Observations on Sweden, the HRC expressed concern over reports of high suicide rates in the State’s prisons, surely indicative of breaches of article 10(1) if not article 7.198 [9.202]

BROUGH v AUSTRALIA (1184/03)

The facts are evident in the HRC’s finding of violation in respect of the conditions of detention of a 17-year-old Aboriginal inmate with a mental disability: ¶9.1. The Committee takes note of the author’s allegation that his placement in a safe cell, as well as his confinement to a dry cell on at least two occasions, was incompatible with his age, disability and status as an Aboriginal, for whom segregation, isolation and restriction of movement within prison have a particularly deleterious effect. It notes the State party’s argument that these measures were necessary to protect the author from further self-harm, to protect other inmates, and to maintain the security of the correctional facility. ¶9.2. The Committee recalls that persons deprived of their liberty must not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Inhuman treatment must attain a minimum level of severity to come within the scope of article 10 of the Covenant. The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim. ¶9.3. The State party has not advanced that the author received any medical or psychological treatment, apart from the prescription of anti-psychotic medication, despite his repeated instances of self-harm, including a suicide attempt on 15 December 1999. The very purpose of the use of a safe cell ‘to provide a safe, less stressful and more supervised environment where an inmate may be counselled, observed and assessed for appropriate placement or treatment’ was negated by the author’s negative psychological development. Moreover, it remains unclear whether the requirements not to use confinement to a safe cell as a sanction for breaches of correctional centre discipline or for segregation purposes, or to ensure that such confinement does not exceed 48 hours unless expressly authorized, were complied with in the author’s case. The Committee further observes that the State party has not demonstrated that by allowing the author’s association with other prisoners of his age, their security or that of the correctional facility would have been jeopardized. Such contact could have been supervised appropriately by prison staff. ¶9.4. Even assuming that the author’s confinement to a safe or dry cell was intended to maintain prison order or to protect him from further self-harm, as well as other prisoners, the Committee considers that the measure incompatible with the requirements of article 10. The State party was required by article 10, paragraph 3, read together with article 24, paragraph 1, of the Covenant to accord the author treatment appropriate to his age and 198

Concluding Observations on Sweden (2009) UN doc CCPR/C/SWE/CO/6, para 14.

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legal status. In the circumstances, the author’s extended confinement to an isolated cell without any possibility of communication, combined with his exposure to artificial light for prolonged periods and the removal of his clothes and blanket, was not commensurate with his status as a juvenile person in a particularly vulnerable position because of his disability and his status as an Aboriginal. As a consequence, the hardship of the imprisonment was manifestly incompatible with his condition, as demonstrated by his inclination to inflict self-harm and his suicide attempt. The Committee therefore concludes that the author’s treatment violated article 10, paragraphs 1 and 3, of the Covenant.

The HRC was clearly influenced in its finding by the particularly vulnerabilities of the victim, indicating that article 10(1) requirements can vary, at least sometimes, according to the characteristics of the detained person.199 [9.203]

GIRI v NEPAL (1761/08)

In response to a complaint regarding conditions of detention, the State party argued: ¶4. With respect to the author’s conditions of detention, the State party contends that such conditions, as described, were ‘fairly humane’ in view of the general standards of living of the Nepalese people. . . .

In finding a violation of Article 10(1), the HRC responded: ¶7.9. With respect to article 10, and while taking note of the State party’s argument, that conditions of detention should be assessed in light of the overall standards of living in Nepal, the Committee recalls that treating persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule. Consequently, the application of this rule, as a minimum, cannot be dependent on the material resources available in the State party. . . .

[9.204] Paragraph 3 implies that article 10 prohibits a less serious form of treatment than that prohibited by article 7.200 This has been confirmed in the following case. GRIFFIN v SPAIN (493/92) ¶3.1. The author claims that he has been subjected to cruel, inhuman and degrading treatment and punishment during his incarceration at the prison of Melilla. The living conditions in this prison are said to be worse than those depicted in the film ‘Midnight Express’; a 500-year old prison, virtually unchanged, infested with rats, lice, cockroaches and diseases; 30 persons per cell, among them old men, women, adolescents and an eight-month old baby; no windows, but only steel bars open to the cold and the wind; high incidence of suicide, selfmutilation, violent fights and beatings; human faeces all over the floor as the toilet, a hole in the ground, was flowing over; sea water for showers and often for drink as well; urine soaked blankets and mattresses to sleep on in spite of the fact that the supply rooms were full of new bed linen, clothes etc. He adds that he has learned that the prison

See also Hamilton v Jamaica (616/95) [9.231]. See also Ghandhi, ‘The Human Rights Committee and Articles 7 and 10(1) of the International Covenant on Civil and Political Rights, 1966’, 763. 199 200

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has been ‘cleaned up’ since the riots, but that he can provide the Committee with a list of witnesses and with a more detailed account of conditions and events in the said prison.

At the admissibility stage, the HRC stated: ¶6.3. The Committee noted that the author had invoked article 7 in respect of his allegations concerning the events and conditions of the prison of Melilla. It found, however, that the facts as described by the author fell rather within the scope of article 10.

Ultimately, the HRC found that the detention conditions as outlined by Griffin amounted to a breach of article 10(1).201 [9.205] The above case concerned complaints about the general conditions of detention. Perhaps article 10 applies when conditions of detention are generally poor, while article 7 applies where the author is specifically treated worse than others. Some support for this notion comes from the following case. PINTO v TRINDIDAD and TOBAGO (512/92) ¶8.3. The author has complained about appalling conditions of detention and harassment at the Carrera Convict Prison. The State party has only refuted this allegation in general terms; on the other hand, the author has failed to provide details on the treatment he was subject to, other than by reference to conditions of detention that affected all inmates equally. On the basis of the material before it, the Committee concludes that there has been no violation of article 7.

Note, in particular, the reference in Pinto to ‘conditions of detention that affected all inmates equally’. Do those words indicate that treatment, no matter how appalling, will fall outside article 7 if it is applied equally to all detainees? The HRC did not specifically say that the appalling prison conditions amounted to a breach of article 10(1), though this was possibly an oversight, as a violation of article 10(1) was found with regard to other allegations [9.224]. [9.206] In the very early case of Massera v Uruguay (5/77), the HRC found that ‘detention in conditions detrimental to [one’s] health’ constituted a breach of article 7 [9.134]. However, subsequent cases, such as those excerpted directly above, indicate that the HRC has abandoned this early position. Indeed, Nowak contends that article 10(1) is primarily aimed at redressing a poor ‘general state of a detention facility’,202 whereas article 7 is designed to redress ‘specific, usually See also Kelly v Jamaica (253/87), para 5.7, and Taylor v Jamaica (707/96), paras 3.7, 3.8, and 8.1. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 250. See also Párkányi v Hungary (410/1990), para 8.2; Bennett v Jamaica (590/94), para 10.8; Henry v Trinidad and Tobago (752/97), paras 7.3–7.4; Morgan and Williams v Jamaica (720/96), para 7.2; Blaine v Jamaica (696/96), para 8.4; Levy v Jamaica (719/96), para 7.4; Taylor v Jamaica (705/96), para 7.4; Shaw v Jamaica (704/96), para 7.2; McTaggart v Jamaica (749/97), paras 8.5–8.6; Yasseen and Thomas v Republic of Guyana (676/96), paras 7.4, 7.6; Matthews v Trinidad and Tobago (569/93), para 7.3; McLeod v Jamaica (734/97), para 6.4; Polay Campos v Peru (577/94), para 8.4; Johnson v Jamaica (653/95), para 8.2; Campbell v Jamaica (618/95), para 7.2; Phillip v Jamaica (594/92), para 7.4; Pennant v Jamaica (647/95), para 8.4; Forbes v Jamaica (649/95), para 7.5; Howell v Jamaica (798/98); Sobhraj v Nepal (1870/09); and Vargas Más v Peru (1058/02) where the HRC found a violation of art 10(1) but not art 7 entailed in awful prison conditions. 201

202

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violent attacks on personal integrity’. contention. [9.207]

313

The following cases support Nowak’s

KENNEDY v TRINIDAD and TOBAGO (845/98)

¶7.7. The Committee has noted the author’s allegations of beatings sustained after arrest in police custody. It notes that the State party has not challenged these allegations; that the author has provided a detailed description of the treatment he was subjected to, further identifying the police officers allegedly involved; and that the magistrate before whom he was brought on 10 February 1987 ordered him to be taken to hospital for treatment. The Committee considers that the treatment Mr. Kennedy was subjected to in police custody amounted to a violation of article 7 of the Covenant. ¶7.8. The author claims that his conditions of detention are in violation of articles 7 and 10(1). Once again, this claim has not been addressed by the State party. The Committee notes that the author was kept on remand for a total of 42 months with at least five and up to ten other detainees in a cell measuring 6 by 9 feet; that for a period of almost eight years on death row, he was subjected to solitary confinement in a small cell with no sanitation except for a slop pail, no natural light, being allowed out of his cell only once a week, and with wholly inadequate food that did not take into account his particular dietary requirements. The Committee considers that these—uncontested—conditions of detention amount to a violation of article 10, paragraph 1, of the Covenant.

The Committee in Kennedy clearly drew a distinction between prison conditions, covered by article 10(1), and violent attacks, covered by article 7.204 [9.208]

RS v TRINIDAD and TOBAGO (684/96)

¶7.3. As to the author’s claims that the conditions of detention in the various phases of his imprisonment violated articles 7 and 10, paragraph 1, in the absence of a responses by the State party to the conditions of detention as described by the author, the Committee notes that author’s counsel has provided a detailed description of the conditions in the prison in which the author was detained and has also claimed that no psychiatric treatment was available in the prison. As the State party has made no attempt to challenge the detailed allegations made by author’s counsel, nor to contest that these conditions applied to the author himself, the Committee must give due credence to the counsel’s allegations. As to whether the conditions as described violate the Covenant, the Committee considers, as it has repeatedly found in respect of similar substantiated allegations, that the author’s conditions of detention as described violate his right to be treated with humanity and with respect for the inherent dignity of the human person, and are therefore contrary to article 10, paragraph 1. In the light of this finding in respect of article 10, a provision of the Covenant dealing 203 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 250; Ghandhi, ‘The Human Rights Committee and Articles 7 and 10(1) of the International Covenant on Civil and Political Rights, 1966’, 769–71. See also Chung v Jamaica (591/94), where the author’s ‘beatings at the hands of warders’ violated both arts 7 and 10(1) (para 8.2); and McTaggart v Jamaica (749/97) (author beaten and had belongings burnt), para 8.7; Johnson v Jamaica (653/95) (beatings and threats, no medical treatment), para 8.1; Morrison v Jamaica (663/95) (beatings), para 8.3; Pennant v Jamaica (647/95), para 8.3 (beatings by police); Gallimore v Jamaica (680/96), para 7.1. 204 See also Boodoo v Trinidad and Tobago (721/96), paras 6.4–6.5, and Wilson v Philippines (868/99) [9.135]

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specifically with the situation of persons deprived of their liberty and encompassing for such persons the elements set out generally in article 7, it is not necessary to consider separately the claims arising under article 7.

This statement from RS has been reiterated in a number of cases.205 [9.209] However, the line between the two provisions has been blurred in HRC jurisprudence. In some cases, general conditions of detention have been so severe as to reach the threshold of severity for a violation of article 7 [9.131]. Furthermore, breaches of article 10 have been found in cases of specific attacks on people, as in the following case. WALKER and RICHARDS v JAMAICA (639/95) ¶8.1. With regard to the alleged violation of article 10, paragraph 1, of the Covenant for ill-treatment in detention on death row, the Committee notes that in respect of Mr Walker’s complaint that he was beaten in May of 1990, which required five stitches for his injury, the State party admitted that these injuries occurred during the prison riots in May 1990 riots and that it would investigate the matter and inform the Committee. The Committee further notes that 20 months after the communication was brought to the attention of the State party and over 7 years after the events, no information has been received to explain the matter. In the circumstances and in the absence of information from the State party, the Committee finds that the treatment received by Mr Walker on death row constitutes a violation of article 10, paragraph 1, of the Covenant.

Therefore, article 10 also redresses personal attacks which fall short of article 7 severity.206 [9.210] Often simultaneous breaches of both articles 7 and 10 are found.207 This is not surprising, as treatment which violates article 7 will likely violate article 10 if the victim is a detainee. For example, in Linton v Jamaica (255/1987), the impugned treatment was found to constitute cruel and inhuman treatment contrary to article 7 [9.50]. The HRC then stated that this finding ‘therefore also entailed a violation of article 10, paragraph 1’.208 Often, however, the article 7 finding will suffice and article 10 will not be specifically invoked or considered by the HRC.209

205 Teesdale v Trinidad and Tobago (677/96), para 9; Wanza v Trinidad and Tobago (683/96), para 9.2; Francis v Trinidad and Tobago (899/99), para 5.6. 206 The victims of art 10 breaches in Solórzano v Venezuela (156/83), paras 10.2, 12; Chaplin v Jamaica (596/94), para 8.2; Elahie v Jamaica (553/93), para 8.3; Brown v Jamaica (775/97), paras 3.2, 6.5; Jones v Jamaica (585/94), para 9.4; and Marshall v Jamaica (730/96), para 6.7, also suffered from personal attacks. 207 See eg Francis v Jamaica (320/1988), Bailey v Jamaica (334/1988), Soogrim v Trinidad and Tobago (362/1989), Thomas v Jamaica (321/1988), Kanana v Zaire (366/1989), El-Megreisi v Libyan Arab Jamahiriya (440/1990), Bozize v Central African Republic (428/1990), Blanco v Nicaragua (328/1988), Reynolds v Jamaica (587/1994), Ortega v Ecuador (481/1991). 208 At para 8.5, emphasis added. 209 For example, this arguably occurred in Rodriguez v Uruguay (322/1988), where the art 10 claim was inexplicably ignored at the admissibility stage. In Mukong v Cameroon (458/1991) [9.132], both the HRC and the complainant seemed to ignore the art 10 implications of the facts.

Torture and Humane Treatment [9.211]

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SINGH v NEW ZEALAND (791/97)

The author made, inter alia, the following complaints about conditions of detention during a sentence that entailed eight hours’ detention each week at a detention centre for the purposes of performing manual labour. ¶3.20. The author explains that he is serving his sentence by reporting to a detention centre every Saturday where he is then detained for eight hours and forced to do manual labour regardless of weather conditions. This is said to amount to a violation of articles 7 and 10 of the Covenant. In this context, he submits that there is only a portable ‘pit’ toilet at the work site for 8 to 10 detainees and that no soap or detergent is provided. Further, he complains that the food served is insufficient, of bad quality and prepared under unhygienic conditions. He states that he is only given a cup of tea mid-morning and a cheese and pork sandwich for lunch. He further complains that despite the heavy manual labour, no safety gear or protective clothing is provided and that detainees have to buy their own safety shoes. He further claims that he has contracted a severe skin infection on his hands from wearing gloves, provided by the prison, but which were used by other detainees before and not disinfected. . . .

The State Party responded to the first set of allegations thus: ¶4.17. On the issue of the conditions of detention, the State party explains in great detail the regime in place. As the island on which the detention takes place is a reserve, it is not possible to maintain a permanent toilet installation and a different type of facility had to be adopted. This toilet, which has met the requirements of the City Council, is fully enclosed, has proper seating, and lime is used in the ‘pit’ to dispense with unpleasant odours. This is common practice with this type of toilet. ¶4.18. The State party contests that no soap or detergent is provided for and states that, in addition, each individual receives a towel. All these supplies are checked weekly and replenished when required. The detainee responsible for the preparation of food is issued with a pair of ‘food processing gloves’ which he must wear at all times when handling food. This is closely monitored by a Work Party Supervisor. The State party describes in detail the rations of food provided to each detainee and contests that it is insufficient. It also states that the author never asked to receive special food in line with any religious or ethnic factors, yet he could have done so. ¶4.19. The State party contests that all tasks involve heavy labour. As to safety, all work sites are inspected by the Probation Officer before any work party is sent out to the site. During this inspection, health and safety guidelines are used in the inspection process. Where it is clear that protective equipment/clothing is necessary, this equipment is supplied to the Work Party Supervisor. Not all sites require protective clothing. The State party contests that detainees are expected to purchase protective clothing but states that it is supplied by the Period Detention Centre. It also states that footwear is provided to those who cannot afford to purchase their own and detainees may also use their own gloves if they wish. The State party also remarks that at no stage did the author inform or produce a medical certificate to any of the Centre staff regarding a skin infection. Nor did any of the staff receive verbal or written complaints from the author regarding these matters.

The author responded, and added more allegations: ¶5.7. The author contests the State party’s explanation on the conditions of detention. He says that he and other detainees had complained on many occasions about the insufficient

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amounts of food provided but that nothing was done. He says that he told the wardens verbally and several times in writing about his cultural beliefs and that he could not eat beef. However, he continued to be provided with it in his meals. He also claims to have told the wardens about his skin infection and to have supplied them with medical certificates. In addition, he claims to have received punishment for minor things like talking to other detainees and was ‘hooded, forced to remain standing for 10 hours, and subjected to verbal abuse having racial connotations’.

The HRC merely noted, in its finding in favour of the State Party: ¶6.13. With respect to the alleged violations of articles 7 and 10 of the Covenant suffered by the author as a result of the conditions during his eight-hour weekly work programme, the Committee is of the view that the allegations raised are not sufficient to establish a claim under article 7 or 10 of the Covenant. The same is true of the additional claims referred to in paragraph 5.7 which were subsequently brought forward by the author. These claims are therefore inadmissible under article 2 of the Optional Protocol.

The HRC’s reasoning in this case is poor. It implies that the allegations themselves are not sufficiently serious to raise article 10 issues, let alone issues under article 7. However, the first set of allegations, including one of dangerous work practices, could potentially have been serious enough to activate those articles if the State had not responded with a clarification of the conditions (notwithstanding the fact that the period of detention was only for eight hours). Furthermore, the allegations at paragraph 5.7 regarding the hood and the racial epithet surely raise issues under these guarantees. It is more than likely that the true reason for the HRC’s findings in respect of that allegation was its complete lack of substantiation, and its belated nature. The HRC should have been clearer in its reasoning in this case. [9.212] In Concluding Observations on Cambodia, the HRC requested the State Party to ensure that ‘women prisoners are guarded only by female warders’.210 In General Comment 28, the HRC said that ‘States parties should report on whether men and women are separated in prisons and whether women are guarded only by female guards’,211 which may imply that only female warders should be used in female prisons. In Concluding Observations on Canada, the HRC recommended that the State end the practice of ‘employing male staff working in direct contact with women in women’s institutions’.212 In Abramova v Belarus (CEDAW 23/09), the CEDAW Committee found that female prisoners should be overseen by female guards, and male staff should not have unaccompanied access to female prisoners. [9.213] Regarding New Zealand, the HRC has expressed concern that asylum-seekers were sometimes detained with convicted prisoners while awaiting the determination of their claims.213

210

(1999) UN doc CCPR/C/79/Add.108. At para 15. 212 (2006) UN doc CCPR/C/CAN/CO/5, para 18. See also Concluding Observations on the United States (2006) UN doc CCPR/C/USA/CO/3/Rev.1, para 33; Zambia (2007) UN doc CCPR/C/ZMB/ CO/3, para 20. 213 Concluding Observations on New Zealand (2010) UN doc CCPR/C/NZL/CO/5, para 16. 211

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[9.214] The United Nations has adopted a number of non-binding codes regarding the treatment of detainees.214 The HRC implicitly endorsed these UN Codes in its General Comment 21, at paragraph 5 [9.200].215 Furthermore, in cases such as Mukong v Cameroon,216 the HRC indicated that the norms found in the most famous of the UN codes, the Standard Minimum Rules for the Treatment of Prisoners 1957,217 are incorporated into the article 10 guarantee.218 The HRC has adopted a similar position in a significant number of Concluding Observations. For example, regarding the United States, the HRC stated:219 ¶34. . . . Conditions of detention in prisons, in particular in maximum security prisons, should be scrutinised with a view to . . . implementing the Standard Minimum Rules for the Treatment of Prisoners and the Code of Conduct for Law Enforcement Officials therein.

Thus, it can be safely assumed that the Standard Minimum Rules, and possibly norms in other UN codes, have been elevated to norms of international treaty law in article 10(1) of the Covenant. [9.215] The Standard Minimum Rules overlap to some extent the express requirements of article 10. For example, Rule 8 provides for the separation of convicted and remand prisoners, and for juvenile and adult prisoners. The Standard Minimum Rules are most useful in identifying standards for ‘humane’ treatment.220 For example, prisoners should generally have their own cells, though some exceptions are permitted.221 Lighting, heating, and ventilation, as well as work and sleep arrangements, should ‘meet all the requirements of health’.222 ‘Adequate’ bedding, clothing, food, and hygiene facilities must be supplied.223 Rules 22 to 26 specify requisite medical services for prisoners. Rules 31 to 34 regulate disciplinary measures. Prisoners must also be permitted access to the outside world,224 to receive information concerning their rights,225 access to a prison library,226 a reasonable opportunity to practise their religion,227 and to have any confiscated property returned upon release.228 Finally, prison wardens must inform a prisoner’s family or designated representative if that prisoner dies or is seriously injured.229 The prisoner must also be allowed to inform his/ her family or representative of his/her imprisonment, and of any subsequent transfer to another institution.230 Finally, the Rules must be applied without discrimination.231

214 See generally SM Bernard, ‘An Eye for an Eye: The Current Status of International Law on the Humane Treatment of Prisoners’ (1994) 25 Rutgers Law Journal 759, 770–80. 215 See also para 13 [9.237]. 216 217 At para 9.3 [9.132]. ECOSOC Resolution 662 (XXIV). 218 See also Potter v New Zealand (632/95), para 6.3, stating that the Standard Minimum Rules ‘constitute valuable guidelines for the interpretation of the Covenant’. 219 UN doc CCPR/C/79/Add.50, reported at (1995) 2 IHRR 638; see also Concluding Observations on the Ukraine (1996) UN doc CCPR/C/79/Add.52, para 24; Morocco, (1995) UN doc CCPR/C/79/ Add.44, para 21; Gabon (2000) UN doc CCPR/CO/70/GAB, para 14. 220 221 See Bernard, ‘An Eye for an Eye’, 770–3. Rule 9. 222 223 Rules 10–11. Rules 15–21. 224 225 Rules 38–9. Rules 35–6. 226 227 Rule 40. Rules 41–2. 228 229 Rule 43. Rule 44. 230 231 Rule 44(3). Rule 6.

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[9.216] In Concluding Observations on Croatia, the HRC was concerned ‘at reports about abuse of prisoners by fellow prisoners’.232 Thus, article 10(1) obliges States to provide protection for detainees from other detainees. [9.217] In Concluding Observations on Slovakia, the HRC was ‘concerned at the continuing use of cage-beds as a measure of restraint in social care homes or psychiatric institutions’. Therefore, it recommended that the ‘cage-beds should cease to be used’.233 Similarly, the placement of the authors in a holding cell that resembled a triangular cage, which was so small that both authors could not sit down at the same time, was a breach of article 10(1) in Cabal and Pasini Bertran v Australia (1020/02), even though the authors were detained in this ‘cage’ for only one hour.234 Solitary Confinement and Detention Incommunicado [9.218] In a number of early cases against Uruguay, the HRC found that incommunicado detention ‘for months’ constituted a breach of article 10(1).235 Fifteen days of incommunicado detention in Arzuaga Gilboa v Uruguay (147/83),236 and two weeks incommunicado detention in Arutyunyan v Uzbekistan (917/00).237 The Committee has not decided on the compatibility of shorter periods. By the time such detention has lasted one month, the incommunicado detention may amount to a breach of article 7, as seen in McCallum v South Africa (1818/05) [9.143]. [9.219] In Kang v Republic of Korea (878/99), the HRC found that 13 years of solitary confinement, ‘a measure of such gravity, and of such fundamental impact on the individual in question, that it requires the most serious and detailed justification’, constituted a violation of article 10(1).238 No mention was made of article 7, despite the extreme length of the solitary incarceration. It must be noted that the author was not apparently held incommunicado, and that the author’s arguments regarding solitary confinement had focused solely on article 10(1) rather than article 7. [9.220] In Concluding Observations on Denmark, the HRC stated the following with regard to solitary confinement: ¶12. The Committee is particularly concerned about the wide use of solitary confinement for incarcerated persons following conviction, and especially for those detained prior to trial and conviction. The Committee is of the view that solitary confinement is a harsh penalty with serious psychological consequences and is justifiable only in case of urgent need; the use of solitary confinement other than in exceptional circumstances and for limited periods is inconsistent with article 10, paragraph 1, of the Covenant.

232

(2003) UN doc CCPR/CO/71/HRV, para 14. (2003) CCPR/CO/78/SVK, para 13. See also Concluding Observations on the Czech Republic (2007) UN doc CCPR/C/CZE/CO/2, para 13; Croatia (2009) UN doc CCPR/C/HRV/CO/2, para 12. 234 At para 8.3. 235 See eg Valentini de Bazzano v Uruguay (5/77), Pietraroia v Uruguay (44/79), Cubas Simones v Uruguay (70/80). See also Peñarrietta v Bolivia (176/84). 236 237 At para 14. At para 6.2. 238 At para 7.3. 233

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Denmark should reconsider the practice of solitary confinement and ensure that it is used only in cases of urgent necessity.

Communication with Family and Friends [9.221] Much of the ‘inhumanity’ of incommunicado detention arises from the inability of the detainee to contact family and friends. The importance of family contact was clarified in the following case in the context of unreasonable censorship of a prisoner’s mail. ANGEL ESTRELLA v URUGUAY (74/80) ¶9.2. With regard to the censorship of Miguel Angel Estrella’s correspondence, the Committee accepts that it is normal for prison authorities to exercise measures of control and censorship over prisoners’ correspondence. Nevertheless, article 17 of the Covenant provides that ‘no one shall be subjected to arbitrary or unlawful interference with his correspondence’. This requires that any such measures of control or censorship shall be subject to satisfactory legal safeguards against arbitrary application . . . Furthermore, the degree of restriction must be consistent with the standard of humane treatment of detained persons required by article 10 (1) of the Covenant. In particular, prisoners should be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, by correspondence as well as by receiving visits. On the basis of the information before it, the Committee finds that Miguel Angel Estrella’s correspondence was censored and restricted at Libertad prison to an extent which the State party has not justified as compatible with article 17 read in conjunction with article 10(1) of the Covenant.239

A similar violation of article 10(1), entailed in a refusal to allow a prisoner to correspond with his family and friends, was found in Kulomin v Hungary (521/92). Access to Information [9.222]

ZHELUDKOV v UKRAINE (726/96)

¶8.4. With regard to the alleged violation of article 10, paragraph 1, in respect of the alleged victim’s treatment in detention, in particular as to his medical treatment and access to medical records, the Committee takes note of the State party’s reply, according to which Mr. Zheludkov received medical care and underwent examinations and hospitalization during his stay in the centre and the prison, and that a medical certificate based on the medical records was issued, upon request, on 2 March 1994. However, these statements do not contradict the argument presented on behalf of the alleged victim that despite repeated requests, direct access to the actual medical records was denied by the State party’s authorities. The Committee is not in a position to determine what the relevance of the medical records in question would be for the assessment of the conditions of Mr. Zheludkov’s detention, including medical treatment afforded to him. In the absence of any explanation for such denial, the Committee is of the view that that due weight must be given to the author’s allegations. Therefore, in the circumstances of the present communication, the Committee concludes that the consistent and unexplained denial of access to medical 239

See also [16.33].

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records to Mr. Zheludkov must be taken as sufficient ground for finding a violation of article 10, paragraph 1, of the Covenant.

Death Row Phenomenon [9.223] With regard to the death row phenomenon, the comments above regarding article 7 apply equally to article 10(1).240 Current jurisprudence indicates that the death row phenomenon per se is not a breach of article 10(1). Victimization [9.224] The author in Pinto v Trinidad and Tobago (512/92) had successfully challenged the fairness of his trial in the earlier communication of Pinto v Trinidad and Tobago (232/87). In the later case, the HRC found a violation of article 10(1) entailed in the consequent victimization of the author:241 ¶8.3. [T]o convey to the author that the prerogative of mercy would not be exercised and his early release denied because of his human rights complaints reveal lack of humanity and amount to treatment that fails to respect the author’s dignity, in violation of article 10, paragraph 1. POSITIVE DUTIES UNDER ARTICLE 10(1)

[9.225]

GENERAL COMMENT 21

¶6. The Committee recalls that reports should provide detailed information on national legislative and administrative provisions that have a bearing on the right provided for in article 10, paragraph 1. The Committee also considers that it is necessary for reports to specify what concrete measures have been taken by the competent authorities to monitor the effective application of the rules regarding the treatment of persons deprived of their liberty. States parties should include in their reports information concerning the system for supervising penitentiary establishments, the specific measures to prevent torture and cruel, inhuman or degrading treatment, and how impartial supervision is ensured. ¶7. Furthermore, the Committee recalls that reports should indicate whether the various applicable provisions form an integral part of the instruction and training of the personnel who have authority over persons deprived of their liberty and whether they are strictly adhered to by such personnel in the discharge of their duties. It would also be appropriate to specify whether arrested or detained persons have access to such information and have effective legal means enabling them to ensure that those rules are respected, to complain if the rules are ignored and to obtain adequate compensation in the event of a violation.

[9.226] Paragraphs 6 and 7 mirror obligations outlined with regard to article 7.242 The HRC has expressed concern about Sri Lanka’s failure to observe its positive obligations under article 10:243 240

See [9.79]ff. Victimization also occurred on the facts of Elahie v Trinidad and Tobago (553/93) and Wolf v Panama (289/88), para 2.8. 242 See [9.150]ff. 243 Concluding Observations on Sri Lanka (1996) UN doc CCPR/C/79/Add.56. 241

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¶18. The Committee . . . regrets that conditions in places of detention other than prisons are not regulated by law and that prisons and other places of detention are not regularly visited by magistrates or other independent bodies.

[9.227] In Concluding Observations on Egypt, the HRC has emphasized the importance of independent monitoring of prisons:244 ¶15. . . . [The Committee] regrets the impediments to [prison] visits by the United Nations-instituted treaty and non-treaty human rights mechanisms and non-governmental organizations.

[9.228] Fulfilment of procedural duties regarding humane treatment of detainees assists in the prevention of substantive article 10 rights. Inadequate procedures can mean that a State will find it difficult to refute allegations of breaches of article 10. An example of the evidential consequences of a State’s failure to keep adequate prison records is found in the following case. HILL and HILL v SPAIN (526/93) The authors claimed, inter alia, that they were denied food for five of the ten days they were kept in police custody. The State Party submitted records, allegedly signed by the authors, to refute this allegation. The Hills challenged the adequacy of the State Party’s evidence: ¶10.4. They reaffirm that they did not receive any food or drink for a period of five days and very little thereafter, because the allocation of funds specifically for this purpose were misappropriated. They point out that the State party’s list does not refer to the first five days, when they allege to have been totally deprived of subsistence. The lists presented by the State refer to 11 days, and only two of these, the 21st and 24th July, show their signature.

On the merits, the HRC found in favour of the Hill brothers regarding the article 10 allegation: ¶13. With respect to the authors’ allegations regarding their treatment during detention, particularly during the first 10 days when they were in police custody . . . the Committee notes that the information and documents submitted by the State party do not refute the authors’ claim that they were not given any food during the first five days of police detention. The Committee concludes that such treatment amounts to a violation of article 10 of the Covenant.

[9.229]

GENERAL COMMENT 28

General Comment 28 confirms that positive duties exist under article 10 with regard to pregnant and post-natal prisoners. ¶15. . . . Pregnant women who are deprived of their liberty should receive humane treatment and respect for their inherent dignity at all times surrounding the birth and while caring for their newly-born children; States parties should report on facilities to ensure this and on medical and health care for such mothers and their babies.

244

(2002) UN doc CCPR/CO/76/EGY.

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[9.230] As with article 7, under article 10(1), a State Party is also responsible for the lives and well-being of its detainees and must take reasonable steps to provide detainees with an adequate standard of health care.245 [9.231]

HAMILTON v JAMAICA (616/95)

The author alleged a breach of article 10(1) with respect to his conditions of incarceration in a prison in the following terms: ¶3.1. Counsel explains that the author was shot, in the lower area of his spine by a police officer after a hearing by the Magistrate as part of the Preliminary Enquiry. He had, for other reasons, been in hospital prior to his arrest. He was then readmitted to hospital, because of the injury to his back, where he spent three months between his arrest and his trial. As a long term outcome, as a result of this, he is paralysed in both legs and is unable to move from his cell unless he is carried by other inmates. He is also unable to remove his slop bucket from the cell himself and he has therefore been obliged to pay other inmates to remove it. This means that sometimes it has to remain in his cell until he has obtained the necessary funds. [The complaint then details unsuccessful attempts to seek a remedy for the situation.] It is submitted that the author’s rights under articles 7 and 10 of the Covenant have been violated, because of the prison authorities’ failure to take into account the author’s paralysed condition and to make proper arrangements for him. The lack of proper care is also said to be in violation of the UN Standard Minimum Rules for the treatment of Prisoners.

The HRC agreed that there was a violation of article 10(1): ¶8.2. With regard to the author’s complaints with respect to his conditions of detention at St. Catherine’s District Prison, the Committee notes that the author has made very precise allegations, relating to the difficulties he has encountered as a disabled person . . . All of this has not been contested by the State party, except to say that measures would have to be put in place to accommodate the author as a disabled person in prison. In the Committee’s opinion, the conditions described in para 3.1, are such as to violate the author’s right to be treated with humanity and with respect for the inherent dignity of the human person, and are therefore contrary to article 10, paragraph 1. ARTICLE 10(2)(a)—SEGREGATION OF ACCUSED PERSONS FROM CONVICTED PERSONS

[9.232]

GENERAL COMMENT 21

¶9. Article 10, paragraph 2 (a), provides for the segregation, save in exceptional circumstances, of accused persons from convicted ones. Such segregation is required in order to emphasise their status as unconvicted persons who at the same time enjoy the right to be presumed innocent as stated in article 14, paragraph 2. The reports of States parties should indicate how the separation of accused persons from convicted persons is effected and explain how the treatment of accused persons differs from that of convicted persons.

[9.233]

PINKNEY v CANADA (27/78)

Pinkney was a prisoner on remand in Canada. Though his cell was in a separate area from those of convicted prisoners, convicted prisoners did serve food and 245

See Fabrikant v Canada (970/01), para 9.3. See also [8.40].

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work as cleaners in the remand unit. The HRC found that this arrangement did not breach article 10(2)(a): ¶30. The Committee is of the opinion that the requirement of article 10(2)(a) of the Covenant that ‘accused persons shall, save in exceptional circumstances, be segregated from convicted persons’ means that they shall be kept in separate quarters (but not necessarily in separate buildings). The Committee would not regard the arrangements described by the State party whereby convicted persons work as food servers and cleaners in the remand area of the prison as being incompatible with article 10 (2) (a), provided that contacts between the two classes of prisoners are kept strictly to a minimum necessary for the performance of those tasks.

[9.234] Wolf v Panama (289/88) and Wilson v Philippines (868/99) are two of few examples of actual breaches of article 10(2)(a).246 [9.235] Part of the complaint in Minogue v Australia (954/00) concerned the State’s failure to separate the author, a convicted prisoner, from unconvicted prisoners. That claim was inadmissible as Australia has a relevant reservation to Article 10(2)(a) [26.29]. Furthermore, it is questionable whether breaches of the right can be claimed by convicted prisoners, who do not seem to be so prejudiced by the mixing of the two types of prisoners, as opposed to unconvicted prisoners.247 [9.236] In General Comment 28, on Equality of Rights between Men and Women, the HRC implied that male and female prisoners must be kept in separate facilities.248 ARTICLE 10(2)(b) AND 10(3)—PROTECTION FOR JUVENILE DETAINEES

[9.237]

GENERAL COMMENT 21

¶13. Article 10, paragraph 2 (b), provides that accused juvenile persons shall be separated from adults. The text also provides that cases involving juveniles must be considered as speedily as possible. Reports should specify the measures taken by States parties to give effect to that provision. Lastly, under article 10, paragraph 3, juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status in so far as conditions of detention are concerned, such as shorter working hours and contact with relatives, with the aim of furthering their reformation and rehabilitation. Article 10 does not indicate any limits of juvenile age. While this is to be determined by each State party in the light of relevant social, cultural and other conditions, the Committee is of the opinion that article 6, paragraph 5, suggests that all persons under the age of 18 should be treated as juveniles, at least in matters relating to criminal justice. States should give relevant information about the age groups of persons treated as juveniles. In that regard, States parties are invited to indicate whether they are applying the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, known as the Beijing Rules (1987).

Article 10 reinforces article 24, ICCPR, which provides general protection for children’s rights.249 Brough v Australia (1184/03) is an example of a case where a violation of article 10(3), in respect of the rights of juveniles, was found [9.202]. 246

At para 7.3. 248 See the State party’s arguments at para 4.6. At para 15. See Ch 21. See also R Levesque, ‘Future Visions of Juvenile Justice: Lessons from International and Comparative Law’ (1996) 29 Creighton Law Review 1563. 247 249

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[9.238] In Thomas v Jamaica (800/98), the detention of the author from the ages of 15 to 17 with adult prisoners breached article 10(2)(b) and (3).250 A violation of article 10(2)(b) was also found in Koreba v Belarus (1390/05).251 However, one may note that one complaint in Brough v Australia (1184/03) concerned the fact that the 17-year-old author was detained in an adult facility. That complaint was inadmissible as he was still segregated from adult prisoners while at that facility.252 [9.239] The HRC has expressed concern over the sentencing of persons, under 18 at the time of the commission of an offence, to life sentences without parole in the United States.253 ARTICLE 10(3)—REHABILITATIVE PURPOSE FOR DETENTION

[9.240]

GENERAL COMMENT 21

¶10. As to article 10, paragraph 3, which concerns convicted persons, the Committee wishes to have detailed information on the operation of the penitentiary system of the State party. No penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner. States parties are invited to specify whether they have a system to provide assistance after release and to give information as to its success. ¶11. . . . The Committee requests specific information concerning the measures taken to provide teaching, education and re-education, vocational guidance and training and also concerning work programmes for prisoners inside the penitentiary establishment as well as outside. ¶12. In order to determine whether the principle set forth in article 10, paragraph 3, is being fully respected, the Committee also requests information on the specific measures applied during detention, e.g., how convicted persons are dealt with individually and how they are categorised, the disciplinary system, solitary confinement and high-security detention and the conditions under which contacts are ensured with the outside world (family, lawyer, social and medical services, and non-governmental organisations).

[9.241] Article 10(3) seems a controversial inclusion in the ICCPR, as it purports to dictate the policy States should adopt with regard to the treatment of offenders. The preponderance of ‘law and order’ campaigns throughout the world indicates that prison policy has become a highly politicized area in recent years.254 The ‘rehabilitation’ paradigm was more prevalent, at least in Western criminal justice systems, when the ICCPR was adopted in 1966. In more recent times in many States, there has been a trend towards harsher penalties and prison conditions, evincing a shift towards the ‘retribution’ model of criminal sociology. It is 250

At para 6.5. See also Concluding Observations on Cyprus (1994) UN doc CCPR/C/79/Add.39. 252 At para 8.3(b). 253 Concluding Observations on the United States (2006) UN doc CCPR/C/USA/CO/3/Rev.1, para 34. 254 ‘Law and order’ has, for example, long been a major electoral issue in the United States, the United Kingdom, and various states in Australia. 251

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possible that the ‘rehabilitation’ aspect of article 10(3) has been treated by States Parties as an anachronism.255 [9.242] Article 10(3) has arisen in very few Optional Protocol cases. Indeed, it seems very difficult to establish that one was a specific ‘victim’ of a State’s failure to adopt a rehabilitation model of criminal justice.256 A breach of article 10(3) was found in Kang v Republic of Korea (878/99), brought about by the fact that the author had been held in solitary confinement for 13 years, apparently because he refused to abandon his left-wing political opinions [18.07].257 [9.243]

JENSEN v AUSTRALIA (762/97)

The author was a convicted sex offender, serving a prison term. He argued that his continued incarceration breached article 10(3): ¶3.5. The author states that while in prison he has followed intensive therapy and that the psychological reports show that he is unlikely to re-offend. The author argues that further imprisonment, after he was ready to be rehabilitated and reintegrated in society, for offences that happened ten years ago, is detrimental to his rehabilitation and has led to heavy emotional and psychological stress. He thus claims a violation of article 10, paragraph 3, of the Covenant.

The HRC found the claim to be inadmissible: ¶6.4. Concerning the author’s claims under article 10, paragraph 3, that the application of the penitentiary system in the author’s case has not had as its essential aim his social rehabilitation and reformation, the Committee notes the variety of programmes and mechanisms in place in the State party’s penitentiary system that are geared towards this end. The Committee considers that the author has failed to substantiate that the State party’s assessments of the author’s reformative progress, and of the consequences which ought to flow from that, raise issues of compliance with the requirements of article 10, paragraph 3. Accordingly, the Committee is of the view that the author has failed to substantiate, for the purposes of admissibility, his claim of a violation of article 10, paragraph 3, and this part of the communication is therefore inadmissible under article 2 of the Optional Protocol.

[9.244] In a separate concurring opinion in Teesdale v Trinidad and Tobago (677/96), Mr Lallah indicated that a sentence of 75 years with hard labour was possibly contrary to article 10(3). He did not go so far as to find a violation, though it may be noted that numerous violations were found in this case, most relating to the right to a fair trial. In Hankle v Jamaica (710/96), Mrs Chanet argued that the majority should have found the case to be admissible, and queried whether a mandatory non-parole period of 20 years was compatible with article 10(3).

255 See eg P Roberts, ‘Recent Trends in English Penal Policy’, in A Kwak and R Dingwall (eds), Social Change, Social Policy and Social Work in the New Europe (Ashgate, 1998). 256 The art 10(3) complaint in Lewis v Jamaica (708/96) was inadmissible as the author could not establish ‘victimhood’. 257 At para 7.3.

326 [9.245]

The ICCPR RADOSEVIC v GERMANY (1292/04)

This complaint concerned the lower wages allegedly received by prisoners in comparison with other workers. The complaint was found to be inadmissible [23.30]. One claim related to an alleged violation of article 8(3)(c)(i) [10.04]. The State party’s own Federal Court had found that the low wages did not comply with Germany’s constitutional guarantee of prisoner ‘resocialization’, which seems to be a national equivalent to article 10(3). The Federal Court, however, had granted the State a transitional period of two-and-a-half years in which to address the issue. The author did not benefit, as his prison work had ceased prior to the expiry of the transition period. The HRC stated: ¶7.3. The Committee further notes the author’s claims that article 26, read in conjunction with article 8, paragraph 3 (c) (i), contains a right to adequate remuneration for work performed by prisoners, and that he was discriminated against in the enjoyment of that right because of the continued application of Section 200 of the Enforcement of Sentences Act for a transitional period of two years and six months after the Constitutional Court had declared that provision incompatible with the constitutional principle of re-socialization of prisoners. It considers that article 8, paragraph 3 (c) (i), read in conjunction with article 10, paragraph 3, of the Covenant requires that work performed by prisoners primarily aims at their social rehabilitation, as indicated by the word ‘normally’ in article 8, paragraph 3 (c) (i), but does not specify whether such measures would include adequate remuneration for work performed by prisoners. While reiterating that, rather than being only retributory, penitentiary systems should seek the reformation and social rehabilitation of prisoners, the Committee notes that States may themselves choose the modalities for ensuring that treatment of prisoners, including any work or service normally required of them, is essentially directed at these aims. It notes that the German Constitutional Court justified the transitional period, during which prisoners were continued to be remunerated on the basis of five percent of the base amount, with the fact that the necessary [legislative amendment] required a re-assessment by the legislator of the underlying re-socialization concept. It further recalls that it is generally for the national courts, and not for the Committee, to review the interpretation or application of domestic legislation in a particular case, unless it is apparent that the courts’ decisions are manifestly arbitrary or amount to a denial of justice. The Committee considers that the author has not substantiated any such defects in relation to the Constitutional Court’s decision to allow the legislator a transitional period until 31 December 2000 to amend [the relevant legislation]. Accordingly, this part of the communication is inadmissible under article 2 of the Optional Protocol.

The HRC found that article 8(3)(c)(i), when read together with article 10(3), provided that work performed by prisoners should be primarily designed to facilitate their social rehabilitation. However, the provision did not contain a guarantee of payment for prisoners for work performed. The claim of a breach of article 8(3) (c)(i) was misconceived, as that provision operates more as an exception to a right rather than a right itself. A more logical claim, and indeed a claim that was implicitly addressed by the HRC, was that Germany had breached its obligation in article 10(3) to ensure that rehabilitation and reformation be the essential aim of its penitentiary system. Its own Federal Court had found that the low wages did not comply with Germany’s comparable constitutional guarantee of prisoner

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‘resocialization’. The HRC, however, found that the Constitutional Court had not erred in providing for a transitional period during which Germany could fix the problem. With respect to the HRC, its finding regarding the transitional period was confusing. The transitional period related to compliance with German constitutional law rather than the ICCPR. The ICCPR obligation in article 10(3), like all obligations in the ICCPR, is immediate rather than progressive, yet the HRC did not explain why a transitional period was permissible. It may be that the HRC does not believe that wages for prison work are a necessary component of prisoner rehabilitation, regardless of the position under German constitutional law. Its reference to a State’s discretion in choosing the modalities of rehabilitation indicates that this might be so. If that was the case, however, the issue of the transitional period was irrelevant and need not have been addressed. [9.246] YEVDOKIMOV and REZANOV v RUSSIAN FEDERATION (1410/05) Here, the HRC majority found a breach of article 25 entailed in the complete ban on voting for prisoners [22.27]. Mr Salvioli concurred, and added that Article 25 should be read in conjunction with Article 10(3).258 He noted that the General Comment on article 25 anticipated the removal of the vote for prisoners in certain circumstances [22.25], and he called for a revision of that part of the General Comment: The criminal justice system, and all public policy, must be understood from a human rights perspective; within this context, punishment must never involve measures that are not intended to rehabilitate convicted persons, and I cannot understand how deprivation of the right to vote used as a form of punishment can have a rehabilitative effect.

Furthermore, the HRC has said that the denial of the right to vote to prisoners in the United Kingdom ‘amount[ed] to an additional punishment and that it does not contribute towards the prisoner’s reformation and social rehabilitation, contrary to article 10, paragraph 3, in conjunction with article 25 of the Covenant’.259 [9.247] The HRC referred to article 10(3) in its Concluding Observations on Belgium:260 ¶16. [A]lternative sentencing, including community service, should be encouraged in view of its rehabilitative function. . . . ¶19. Bearing in mind that pursuant to article 10, paragraph 3, of the Covenant, the essential aim of incarceration should be the reformation and social rehabilitation of offenders, the Committee urges the State party to develop rehabilitation programmes both for the time during imprisonment and for the period after release, when ex-offenders must be reintegrated into society if they are not to become recidivists.

258 See also Concluding Observations on the United States (2006) UN doc CCPR/C/USA/CO/3/ Rev.1, para 35. 259 (2001) UN doc CCPR/CO/73/UK, para 10; see also UK (2008) UN doc CCPR/C/GBR/CO/6, para 28. 260 (1998) UN doc CCPR/C/79/Add.99.

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[9.248] It has also commented to the United States that some of its ‘maximum security prisons’, involving ‘prolonged cellular confinement, [allowing] out-ofcell recreation for only five hours per week, in general conditions of strict regimentation in a depersonalized environment’ could not be reconciled with article 10(3).261 [9.249] The rehabilitation aspect of article 10(3) has been unfortunately neglected by the HRC. However, proper adherence to the other aspects of article 10, which have been vigorously monitored by the HRC, would result in a humane penitentiary system which would aid the reformation and rehabilitation of inmates.262

Conclusion [9.250] The HRC and the CAT Committee have generated a rich jurisprudence relating to the prohibition of torture and cruel, inhuman, and degrading treatment and punishment. The HRC has also developed jurisprudence under article 10, which provides additional protection for persons in detention. [9.251] Numerous cases, such as the early complaints against Uruguay, have concerned factual situations which gave rise to obvious violations of articles 7 and/ or 10. However, cases have also concerned more borderline situations, such as the ICCPR/CAT compatibility of the infliction of psychological anxiety, the death row phenomenon, and the deportations of asylum-seekers. [9.252] HRC jurisprudence indicates that inadequate prison conditions, which affect the general prison population, tend to give rise to breaches of article 10 rather than article 7. Article 7 is more likely to be relevant in cases where the complainant has been singled out for especially bad treatment. However, the HRC has unfortunately not been totally clear in defining the line between breaches of article 7 and breaches of article 10. [9.253] Finally, articles 7 and 10 of the ICCPR, as well as CAT, impose numerous positive duties on States Parties to train relevant personnel, to implement procedures to guard against violations, and to investigate and punish breaches.

261 Concluding Observations on the United States (2006) UN doc CCPR/C/USA/CO/3/Rev.1, para 32. 262 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 254.

10 Miscellaneous Rights—Articles 8, 11, and 16 • Article 8: Freedom from Slavery, Servitude, and Forced Labour . . . . . • Article 11: Freedom from Imprisonment for Inability to Fulfil a Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Article 16: Right to Recognition as a Person before the Law . . . . . . . . • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[10.02] [10.14] [10.18] [10.25]

[10.01] Though the rights are not similar in nature, articles 8, 11, and 16 are grouped together in this chapter due to the virtual absence of jurisprudence under these articles.

Article 8: Freedom from Slavery, Servitude, and Forced Labour 1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. 2. No one shall be held in servitude. 3. (a) No one shall be required to perform forced or compulsory labour. (b) Paragraph 3(a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court. (c) For the purpose of this paragraph the term ‘forced or compulsory labour’ shall not include (i) any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention; (ii) any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors; (iii) any service exacted in cases of emergency or calamity threatening the life or well-being of the community; (iv) any work or service which forms part of normal civil obligations.

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[10.02] Article 8 guarantees some of the most fundamental human rights: freedom from slavery, servitude, and forced or compulsory labour. Indeed, the world-wide fight against slavery was one of the first ‘human rights’ campaigns. Freedom from slavery and servitude is now recognized as part of customary international law.1 Furthermore, the ICCPR freedoms from slavery and servitude are non-derogable rights. [10.03] Article 8(1) prohibits slavery. Slavery occurs where one human being effectively ‘owns’ another,2 so that the former can thoroughly exploit the latter with impunity. Article 8(2) guarantees freedom from servitude, which is a broader concept than slavery. ‘Servitude’ refers to other forms of egregious economic exploitation or dominance exercised by one person over another, or ‘slavery-like’ practices.3 [10.04] Article 8(3)(a) prohibits forced or compulsory labour, which is essentially defined in ILO Convention 29 as ‘all work or service which is extracted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’.4 However, paragraphs 8(3)(b) to (c) contain a number of exceptions, or qualifications, to this rule. The HRC has unfortunately issued few consensus comments on the extent of these exceptions. In Wolf v Panama (289/88), the HRC inferred that the exception regarding prison labour in article 8(3)(c)(i) does not apply until a sentence has been pronounced against a prisoner.5 In Radosevic v Germany (1292/04), the author tried to claim that the rate of wages he received for prison labour breached article 8(3)(c)(i) in conjunction with article 26 [23.30]. This claim was odd, as article 8(3)(c)(i) appears to be an exception to a right rather than a right in itself (see also [9.245]). [10.05] Article 8(3)(c)(ii) has been used to deny the existence in the Covenant of a freedom for conscientious objectors from compulsory military service.6 More recent HRC jurisprudence has reversed that position and the HRC now recognizes a right of conscientious objection in article 18.7 [10.06]

FAURE v AUSTRALIA (1036/01)

The author received unemployment benefits from the State. After the Social Security Legislation Amendment (Work for the Dole) Act (the Act) was enacted 1 See American Law Institute, Restatement (Third) of Foreign Relations Law (West, 1989), para 702. Note that the Restatement does not refer to the prohibitions on servitude or forced labour. 2 Y Dinstein, ‘The Right to Life, Physical Integrity, and Liberty’, in L Henkin (ed), The International Bill of Rights (Columbia University Press, 1981), 126. See Slavery Convention 1926, 60 LNTS 253, art 1(1). 3 See Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery 1956, 266 UNTS 3, Section III. See also M Nowak, CCPR Commentary (2nd edn, NP Engel, 2005), 200. 4 ILO Convention Concerning Forced or Compulsory Labour 1930, 39 UNTS 55, art 2(1). 5 The author had alleged that he had performed forced labour even though no sentence had yet been imposed on him. The HRC found the allegation unsubstantiated at para 6.8. 6 See LTK v Finland (185/84), para 5.2 [17.41]. 7 See Yoon and Choi v Republic of Korea (1321–22/04), discussed at [17.43].

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in 1997, she was required to undertake work placements or else her unemployment benefits would be suspended for a period of time. The author alleged that the requirement that she perform work to receive unemployment benefits breached article 8(3)(a). The HRC disagreed: ¶7.5. Concerning the principal claim under article 8, paragraph 3, of the Covenant, the Committee observes that the Covenant does not spell out in further detail the meaning of the terms ‘forced or compulsory labour’. While the definitions of the relevant ILO instruments may be of assistance in elucidating the meaning of the terms, it ultimately falls to the Committee to elaborate the indicia of prohibited conduct. In the Committee’s view, the term ‘forced or compulsory labour’ covers a range of conduct extending from, on the one hand, labour imposed on an individual by way of criminal sanction, notably in particularly coercive, exploitative or otherwise egregious conditions, through, on the other hand, to lesser forms of labour in circumstances where punishment as a comparable sanction is threatened if the labour directed is not performed. The Committee notes, moreover, that article 8, paragraph 3(c)(iv), of the Covenant exempts from the term ‘forced or compulsory labour’ such work or service forming part of normal civil obligations. In the Committee’s view, to so qualify as a normal civil obligation, the labour in question must, at a minimum, not be an exceptional measure; it must not possess a punitive purpose or effect; and it must be provided for by law in order to serve a legitimate purpose under the Covenant. In the light of these considerations, the Committee is of the view that the material before it, including the absence of a degrading or dehumanizing aspect of the specific labour performed, does not show that the labour in question comes within the scope of the proscriptions set out in article 8. It follows that no independent violation of article 8 of the Covenant has been made out.

Mrs Wedgwood, in a separate opinion, was somewhat more scathing of the author’s claim in her opening remarks: In a world that is still replete with problems of caste, customary systems of peonage and indentured labor, forced labor in remote areas under conditions that often mimic slavery, and the disgrace of sexual trafficking in persons, it demeans the significance of the International Covenant on Civil and Political Rights to suppose that a reasonable work and training requirement for participation in national unemployment benefits in a modern welfare state could amount to ‘forced or compulsory labor’ within the meaning of article 8(3)(a).

[10.07] In Silva v Zambia (825–8/98), the HRC dismissed the case on the basis that ‘the authors have not sufficiently substantiated, for purpose of admissibility, how the taxation of their inducement allowance could be seen as constituting forced labour under article 8, paragraph 3 (a) of the Covenant’.8 IS v Belarus (1994/10) concerned the obligation upon a person who had received a State-funded tertiary education to either work on a particular assignment for two years or to reimburse the State the costs of his education. The complaint was found to be inadmissible as the author had failed to substantiate how the requirements constituted a breach of article 8(3)(a). There was no indication in the case as to whether people were paid during those two years of work. [10.08] A State Party must protect all persons within the jurisdiction from article 8 abuse by private bodies, as well as refraining from engaging in such abuse itself. 8

At para 6.3.

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Indeed, it is likely that private economic interests generate most article 8 abuses these days.9 [10.09] Bonded labour, or debt bondage, is a condition arising from a debtor’s pledge of his/her personal services or those of one under the debtor’s control (often a child) as security for a debt, if the reasonable value of those services is not applied towards liquidation of the debt, or the length and nature of the personal services is not defined.10 In Concluding Observations on India, the HRC made the following comments about ‘bonded’ labour:11 ¶29. The Committee expresses concern at the extent of bonded labour, as well as the fact that the incidence of this practice reported to the Supreme Court is far higher than is mentioned in the report. The Committee also notes with concern that eradication measures which have been taken do not appear to be effective in achieving real progress in the release and rehabilitation of bonded labourers. Therefore: the Committee recommends that a thorough study be urgently undertaken to identify the extent of bonded labour and that more effective measures be taken to eradicate this practice, in accordance with the Bonded Labour System (Abolition) Act of 1976 and article 8 of the Covenant.

[10.10] In Concluding Observations on Thailand, the HRC has stated:12 ¶23. The Committee is concerned about the lack of full protection of the rights of registered and unregistered migrant workers in Thailand, particularly with regard to liberty of movement, access to social services and education, and access to personal documents. The deplorable conditions in which migrants are obliged to live and work indicate serious violations of articles 8 and 26 of the Covenant. The Committee notes that ethnic minorities and migrants from Myanmar are particularly vulnerable to exploitation by employers as well as to deportation by the Thai authorities. The Committee is also concerned that a significant number of migrant workers, mainly from Myanmar, are still missing in the aftermath of the tsunami in December 2004 and that others were not provided with the necessary humanitarian assistance due to their lack of legal status (arts. 2, 8 and 26). The State party must take measures to effectively implement the existing legislation providing for the rights of migrant workers. Migrant workers should be afforded full and effective access to social services, educational facilities and personal documents, in accordance with the principle of non-discrimination. The State party should consider establishing a governmental mechanism to which migrant workers can report violations of their rights by their employers, including illegal withholding of their personal documents. The Committee also recommends that humanitarian assistance be effectively provided to all victims of the tsunami disaster without discrimination, regardless of their legal status.

In Concluding Observations on Japan, the HRC was also concerned over the exploitation of foreign workers:13

See Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 145. Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery 1956, art 1(b). 11 (1997) UN doc CCPR./C/79/Add.81. 12 13 (2005) UN doc CCPR/CO/84/THA. (2008) UN doc CCPR/C/JPN/CO/5. 9

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¶24. The Committee is concerned about reports that non-citizens who come to the State party under the industrial training and technical internship programmes are excluded from the protection of domestic labour legislation and social security and that they are often exploited in unskilled labour without paid leave, receive training allowances below the legal minimum wage, are forced to work overtime without compensation and are often deprived of their passports by their employers (arts. 8 and 26). The State party should extend the protection of domestic legislation on minimum labour standards, including the legal minimum wage, and social security to foreign industrial trainees and technical interns, impose appropriate sanctions on employers who exploit such trainees and interns, and consider replacing the current programmes with a new scheme that adequately protects the rights of trainees and interns and focuses on capacity-building rather than recruiting low-paid labour.

Regarding Kuwait, the HRC has stated:14 ¶18. The Committee is concerned about the discriminatory and inhuman treatment suffered by migrant domestic workers. This situation is exacerbated by the sponsorship system which makes them dependent on particular employers for their authorization to work and to remain in the country. The Committee is also concerned that domestic workers were excluded from the 2010 Private Sector Labour Code, and that the modifications of the sponsorship system have not ensured respect for their basic human rights. The Committee also regrets the absence of effective control mechanisms ensuring the respect for employment regulations by employers (arts. 7 and 8). The State party should abandon the sponsorship system and should enact a framework that guarantees the respect for the rights of migrant domestic workers. The State party should also create a mechanism that actively controls the respect for legislation and regulations by employers and investigates and sanctions their violations, and that does not depend excessively on the initiative of the workers themselves.

[10.11]

GENERAL COMMENT 28

¶12. Having regard to their obligations under article 8, States parties should inform the Committee of measures taken to eliminate trafficking of women and children,15 within the country or across borders, and forced prostitution.16 They must also provide information on measures taken to protect women and children, including foreign women and children, from slavery, disguised inter alia as domestic or other kinds of personal service. States parties where women and children are recruited, and from which they are taken, and States parties where they are received should provide information on measures, national or international, which have been taken in order to prevent the violation of women’s and children’s rights.

14 See Concluding Observations on Kuwait (2011) UN doc CCPR/C/KWT/CO/2; see also Concluding Observations on the Dominican Republic (2012) CCPR/C/DOM/CO/5, para 19. 15 See also Concluding Observations on the Philippines (2003) UN doc CCPR/CO/79/PHL, para 13; Russian Federation (2003) UN doc CCPR/CO/79/RUS, para 10; Serbia and Montenegro (2004) UN doc CCPR/CO/81/SEMO, para 16; the Former Yugoslav Republic of Macedonia (2008) UN doc CCPR/C/MKD/CO/2, para 13. 16 See also Concluding Observations on Mali (2003) UN doc CCPR/CO/77/MLI, para 17; see also [21.48]ff.

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[10.12] Forced prostitution is an egregious form of article 8 abuse, as confirmed in Concluding Observations on Portugal (Macau):17 ¶13. The Committee is particularly concerned at reports on the extent of trafficking in women in Macau and on the large numbers of women from different countries who are being brought into Macau for the purpose of prostitution. The Committee is extremely concerned at the inaction by the authorities in preventing and penalising exploitation of these women and that, in particular, immigration and police officials are not taking effective measures to protect these women and to impose sanctions on those who are exploiting women through prostitution in violation of article 8 of the Covenant. . . . ¶19. The Committee further recommends that the Government should initiate or strengthen programmes aimed at providing assistance to women in difficult circumstances, particularly those coming from other countries who are brought into Macau for the purpose of prostitution. Strong measures should be taken to prevent this form of trafficking and to impose sanctions on those who exploit women in this way. Protection should be extended to women who are the victims of this kind of trafficking so that they may have a place of refuge and an opportunity to stay in order to give evidence against the person responsible in criminal or civil proceedings.18

More recently, the HRC made the following comment on Slovakia:19 ¶10. . . . The Committee . . . notes that trafficking is an international crime and therefore not only concerns women trafficked out of Slovakia, but also those being trafficked into Slovakia from neighbouring countries. . . . The State party should strengthen programmes aimed at providing assistance to women in difficult circumstances, particularly those coming from other countries who are brought into its territory for the purpose of prostitution. Strong measures should be taken to prevent this form of trafficking and to impose sanctions on those who exploit women in this way. Protection should be extended to women who are the victims of this kind of trafficking so that they may have a place of refuge and an opportunity to give evidence against the persons responsible in criminal or civil proceedings. The Committee encourages Slovakia to continue its cooperative efforts with border states to eliminate trafficking across national borders.

[10.13] In Concluding Observations on Brazil, the HRC confirmed that there is a positive element to article 8 protection:20 ¶31. The Committee urges the State party to enforce laws prohibiting forced labour, child labour and child prostitution and to implement programmes to prevent and combat such human rights abuses. In addition, the Committee exhorts the State party to establish more effective supervisory mechanisms to ensure compliance with the provisions of national legislation and relevant international standards. It is imperative that persons who are responsible for, or who directly profit from, forced labour, child labour and child prostitution, be severely punished under law.21 17 (1997) UN doc CCPR/C/79/Add.77; see also Concluding Observations on Cambodia (1999) UN doc CCPR/C/79/Add.16. 18 See also Concluding Observations on Italy (1995) UN doc CCPR/C/79/Add.37, para 5. 19 (2003) UN doc CCPR/CO/78/SVK; see also Concluding Observations on Hungary (2010) UN doc CCPR/C/HUN/CO/5, para 12; Mongolia (2011) UN doc CCPR/C/MNG/CO/5, para 21. 20 (1996) UN doc CCPR/C/79/Add.66; see also Concluding Observations on Dominican Republic (1993) UN doc CCPR/C/79/Add.18, para 5. 21 On prohibitions of child prostitution and child labour, see [21.40]ff.

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Article 11: Freedom from Imprisonment for Inability to Fulfil a Contract No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.

[10.14] Article 11 protects against imprisonment as a punishment for inability to fulfil a contractual obligation. The ‘contractual obligations’ envisaged in article 11 are private law civil obligations, rather than, for example, statutory obligations.22 As the guarantee was primarily designed to tackle the phenomenon of ‘debtors’ prisons’, ‘contractual obligations’ obviously include monetary debts.23 However, article 11 could apply to other contractual obligations, such as performance of services or delivery of goods.24 The reference to ‘inability’ indicates that the person must be incapable of fulfilling the relevant contractual obligation, rather than simply unwilling to do so.25 The word ‘merely’ indicates that the guarantee does not protect people who have committed some other offence over and above the contractual breach. For example, if one intentionally manufactures one’s ‘inability’ and commits fraud, one is not protected from imprisonment by article 11.26 [10.15]

LIBERTO CALVET RÁFOLS v SPAIN (1333/04)

The author in this case had been ordered by a court to pay 25,000 pesetas per month to his ex-wife for the maintenance of his daughter. In 1995, his ex-wife lodged a claim for the recovery of several payments that he had missed. In 2001, he was found guilty of ‘abandonment of the family’ under the Spanish Criminal Code. He argued that article 11 had been breached as he had been imprisoned for failing to pay his debt. The HRC found his claim to be inadmissible: ¶6.4. With regard to the alleged violation of article 11 of the Covenant by the imposition of a custodial sentence for failure to pay maintenance, the Committee notes that the case concerns a failure to meet not a contractual obligation but a legal obligation, as provided in article 227 of the Spanish Criminal Code. The obligation to pay maintenance is one deriving from Spanish law and not from the separation or divorce agreement signed by the author and his ex-wife. Consequently, the Committee finds the communication incompatible ratione materiae with article 11 of the Covenant and thus inadmissible under article 3 of the Optional Protocol.

[10.16] In De León Castro v Spain (1388/05), the author was convicted of fraud and sentenced to three years’ imprisonment. His access to a more lenient penal regime, as well as parole, was limited by a statute which rendered those regimes dependent upon a person paying up civil liabilities arising from a criminal offence. As a bankrupt, he was unable to do so. His explicit complaint did not concern Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 256. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 255. 24 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 256. 25 Dinstein, ‘The Right to Life, Physical Integrity, and Liberty’, 136. 26 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 257. 22 23

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article 11 (see [11.39] and [15.11]). In dissent, Mrs Wedgwood found that his rights had been violated and added: [Article 11] specifically forbids imprisonment ‘on the ground of inability to fulfil a contractual obligation’. Though the Committee has little jurisprudence on the issue, the measures used in criminal cases to coerce the payment of restitution may, at some future date, be worthy of examination in light of the language of that provision, at least in a case where the matter has been properly elucidated. Indeed, the State party’s own statute, which instructed parole authorities to take account of a bona fide declaration of insolvency, may have proceeded from the same concern.

[10.17] Article 11 is a non-derogable right, which has generated little meaningful jurisprudence, so its parameters remain largely undefined. In Concluding Observations on Equatorial Guinea, the HRC outlined one traditional practice which can give rise to violations of article 11: ¶8. . . . The State party should, . . . because the practice is contrary to article 11 of the Covenant, put an end to the imprisonment of women who do not return their dowries when they separate from their husbands.

Article 16: Right to Recognition as a Person before the Law Everyone shall have the right to recognition everywhere as a person before the law.

[10.18] Article 16 guarantees one a basic human right to be legally recognized as a person. If one’s humanity is not legally recognized, one will lose legal recognition of, and therefore be effectively denied, one’s other human rights. For example, Jews in Nazi Germany were deprived of legal recognition; this denial was a precursor to denial of all of their other human rights. Article 16 is a non-derogable right. [10.19] Volio states that article 16 requires States Parties to treat all humans within the jurisdiction as persons enjoying the protection of the law and being subject to legal obligations. Thus, all humans can enter into contracts, sue, and be sued.27 Nowak, on the other hand, adopts a more conservative interpretation of article 16, and argues that it does not protect one’s legal capacity to act or to pursue legal proceedings. Therefore, for example, limitations on the legal capacities of children or mentally ill people, or even vexatious litigants, do not breach article 16.28 Article 16 is written in absolute language, and appears to brook no exception. Given the widespread limitations to the legal capacities of certain people that do exist, Nowak’s minimalist interpretation appears to be correct. [10.20]

AVELLANAL v PERU (202/86)

¶2.1. The author is the owner of two apartment buildings in Lima, which she acquired in 1974. It appears that a number of tenants . . . cease[d] paying rent for their apartments. . . . [T]he 27 F Volio, ‘Legal Personality, Privacy, and the Family’, in Henkin (ed), The International Bill of Rights, 188. 28 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 370–2.

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author sued the tenants on 13 September 1978. The court of first instance found in her favour and ordered the tenants to pay her the rent due since 1974. The Superior Court reversed the judgement on 21 November 1980 on the procedural ground that the author was not entitled to sue, because, according to article 168 of the Peruvian Civil Code, when a woman is married only the husband is entitled to represent matrimonial property before the Courts. . . . [O]n 15 February 1984 the Supreme Court upheld the decision of the Superior Court.

The author claimed that the above facts breached, inter alia, article 16. The HRC found the case admissible in respect of article 16, but inexplicably ignored this article in its merits decision. On the merits, it found breaches of articles 14(1) (right of access to courts), 3, and 26 (prohibitions of sex discrimination).29 The following excerpt from General Comment 28, on Equality of Rights between Men and Women, indicates that the HRC should also have found a breach of article 16 in Avellanal. [10.21]

GENERAL COMMENT 28

¶19. The right of everyone under article 16 to be recognized everywhere as a person before the law is particularly pertinent for women, who often see it curtailed by reason of sex or marital status. This right implies that the capacity of women to own property, to enter into a contract or to exercise other civil rights may not be restricted on the basis of marital status or any other discriminatory ground. It also implies that women may not be treated as objects to be given together with the property of the deceased husband to his family. States must provide information on laws or practices that prevent women from being treated or from functioning as full legal persons and the measures taken to eradicate laws or practices that allow such treatment.

[10.22]

GRIOUA v ALGERIA (1327/04)

This case concerned an instance of forced disappearance, which breaches a number of rights.30 ¶3.4. Article 16 establishes the right of everyone to be recognized as the subject of rights and obligations. Forced disappearance is essentially a denial of that right insofar as a refusal by the perpetrators to disclose the fate or whereabouts of the person concerned or to acknowledge the deprivation of liberty places that person outside the protection of the law.31 Furthermore, in its concluding observations on the State party’s second periodic report, the Committee recognized that forced disappearances might involve the right guaranteed under article 16 of the Covenant.32

EL ABANI v LIBYAN ARAB JAMAHIRIYA (1640/07) ¶7.9. In respect of article 16, the Committee reiterates its established case law, according to which intentionally removing a person from the protection of the law for a prolonged period of time may constitute a refusal to recognize that person before the law if the victim

29

30 See also [14.32]. See, eg, [8.27]ff. Counsel cites the third preambular paragraph of the Declaration on the Protection of All Persons from Enforced Disappearance, General Assembly resolution 47/133 of 18 December 1992 (A/RES/ 47/133). 32 CCPR/C/79/Add.95, para 10. 31

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was in the hands of State authorities when last seen and if the efforts of his or her relatives to obtain access to potentially effective remedies, including judicial remedies (art. 2, para. 3, of the Covenant) have been systematically impeded. In the present case, the author alleges that his father was arrested on 19 April 1990 without a warrant and without being informed of the legal grounds for his arrest. He was then taken to an unknown place where he was subjected to acts of torture, before being taken to Abu Salim prison. None of the steps taken by his family produced any results until he was formally charged, tried and sentenced in 2002. The Committee also observes that the author’s father disappeared once again after having served his full sentence. The State party authorities denied that he was in Abu Salim prison but did not carry out any inquiry to ascertain his fate and have him released. The Committee finds that the enforced disappearance of the author’s father for nearly 12 years, in the absence of any inquiry, deprived the author’s father of the protection of the law during that period, in violation of article 16 of the Covenant.

It is now well established that long-term enforced disappearances breach article 16.33 [10.23] In Concluding Observations on Israel, the HRC stated:34 ¶21. . . . A specific concern of the Committee is that at least some of the persons kept in administrative detention for reasons of State security (and in particular some Lebanese) do not personally threaten State security but are kept as ‘bargaining chips’ in order to promote negotiations with other parties on releasing detained Israeli soldiers or the bodies of deceased soldiers. The Committee considers the present application of administrative detention to be incompatible with articles 7 and 16 of the Covenant . . .

[10.24] In Concluding Observations on the Czech Republic, the HRC has expressed concern over possible violations of article 16 entailed in the assignment of guardianship of mentally ill people to ‘attorneys who do not meet the patient’.35 The Committee has also expressed concerns over the failure of a State to ensure that certain children have birth certificates.36 It has also expressed concern over Ireland’s failure to recognize gender reassignment on a birth certificate.37

Conclusion [10.25] Articles 8, 11, and 16 have generated little jurisprudence. Articles 11 and 16 are of limited scope, which may explain their absence from HRC consideration. These rights also substantially overlap with other rights that have been more prevalent in HRC jurisprudence, such as freedoms from discrimination (articles 2, 3, and 26), the right to a fair trial (article 14), and the right of children to freedom from exploitation (article 24), so it is possible that the HRC simply choose to deal with relevant complaints under other ICCPR provisions. The HRC’s silence could 33 See also eg Aboussedra v Libyan Arab Jamahiriya (1751/08), Benaziza v Algeria (1588/07), Chihoub v Algeria (1811/08), and Ouaghlissi et al v Algeria (1905/09). 34 (1999) UN doc CCPR/C/79/Add.93. 35 (2007) UN doc CCPR/C/CZE/CO/2, para 14. 36 See Concluding Observations on Bosnia and Herzegovina (2007) UN doc CCPR/C/BIH/CO/1, para 22; also Honduras (2007) UN doc CCPR/C/HND/CO/1, para 18. 37 Concluding Observations on Ireland (2008) UN doc CCPR/C/IRL/CO/3, para 8.

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also indicate that these rights are no longer commonly breached, though that may be wishful thinking. It may also be that victims of breaches of these provisions are so disempowered that they are unaware of international avenues of redress. Indeed, it is probably fair to note that the most likely victims of such violations are women (eg sex trafficking, dowry debts, and married women’s rights of legal recognition) who are terribly disempowered in many societies. Regardless of the lack of jurisprudence, these rights are nevertheless important guarantees of human dignity. Indeed, except for article 8(3), they are all non-derogable.38

38

See [26.64ff] on non-derogable rights.

11 Freedom from Arbitrary Detention—Article 9 • • • •

• •

•

• • •

The Right to Security of the Person . . . . . . . . . . . . . . . . . . . . . . . . . . . [11.03] The Right to ‘Liberty’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [11.08] The Requirement of Legality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [11.11] ‘Arbitrary’ Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [11.15] • Detention in Psychiatric Institutions . . . . . . . . . . . . . . . . . . . . . . . . . [11.21] • Immigration Detention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [11.24] • National Security Detention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [11.30] • Preventive Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [11.31] • Revocation or Refusal of Parole . . . . . . . . . . . . . . . . . . . . . . . . . . . . [11.38] • Proportionality of Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [11.40] The Right to be Informed of a Criminal Charge—Article 9(2) . . . . . . [11.45] Rights of Persons Detained on Criminal Charges—Article 9(3) . . . . . [11.53] • ‘Prompt’ Presentation before a Judicial Officer. . . . . . . . . . . . . . . . . [11.53] • ‘Judge or Other Officer Authorized by Law’ . . . . . . . . . . . . . . . . . . . [11.56] • Length of Pre-trial Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [11.58] • Right to Release Pending Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [11.64] Right of Habeas Corpus—Article 9(4) . . . . . . . . . . . . . . . . . . . . . . . . . [11.70] • Review without Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [11.73] • Access to Lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [11.83] • Access to Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [11.87] • Proceedings must be before a ‘Court’ . . . . . . . . . . . . . . . . . . . . . . . . [11.88] • Effectiveness of Right to Challenge Detention . . . . . . . . . . . . . . . . . [11.91] Right to Compensation—Article 9(5) . . . . . . . . . . . . . . . . . . . . . . . . [11.100] Forced Disappearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [11.105] Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [11.106]

ARTICLE 9 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

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4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

[11.01] The liberty and security of the person are protected by article 9 ICCPR. In relation to the right to liberty, article 9 does not grant complete freedom from arrest or detention. Deprivation of liberty has always been and will continue to be a legitimate form of State control over persons within the jurisdiction.1 Instead article 9(1) acts as a substantive guarantee that arrest or detention will not be arbitrary or unlawful. Article 9(2) to (5) provides procedural guarantees that help ensure enjoyment of the substantive guarantee in article 9(1). [11.02] Article 9 has usually been invoked in the context of deprivations of liberty. However, the article also guards the right to security of the person. This right applies to persons in and out of detention.

The Right to Security of the Person [11.03] The issue of the right to the security of the person was discussed in the following case. DELGADO PÁEZ v COLOMBIA (195/85) The author in this case was a Colombian teacher of religion and ethics who had made complaints against the Apostolic Prefect and the Education Authorities concerning discrimination against him. The author received death threats as a result of these complaints and was attacked in the city of Bogotá. After a work colleague was shot dead by unknown assailants, the author fled the country and obtained political asylum in France. The author filed a complaint alleging that the Colombian government had violated its obligation to protect his rights to equality, justice, and life and therefore he had been forced to leave the country. Although not initially invoked by the author, the Human Rights Committee (HRC) found a violation of article 9(1) in the following terms: ¶5.5. The first sentence of article 9 does not stand as a separate paragraph. Its location as a part of that paragraph could lead one to the view that the right to security arises only in the context of arrest and detention. The travaux préparatoires indicate that the discussions of the first sentence did indeed focus on matters dealt with in the other provisions of article 9. The Universal Declaration of Human Rights, in article 3, refers to the right to life, the right to liberty and the right to security of the person. These elements have been dealt with in separate clauses in the Covenant. Although in the Covenant the only reference to the right 1 Indeed, Nowak states that imprisonment has grown in significance due to ‘gradual displacement of other forms of punishment, such as the death penalty and corporal punishment’; M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005), 211.

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to security of the person is to be found in article 9, there is no evidence that it was intended to narrow the concept of the right to security only to situations of formal deprivation of liberty. At the same time, States parties have undertaken to guarantee the rights enshrined in the Covenant. It cannot be the case that, as a matter of law, States can ignore known threats to the life of persons under their jurisdiction, just because he or she is not arrested or otherwise detained. States parties are under an obligation to take reasonable and appropriate measures to protect them. An interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render totally ineffective the guarantees of the Covenant. ¶5.6. There remains the question of the application of this finding to the facts of the case under consideration. There appears to have been an objective need for Mr Delgado to be provided by the State with protective measures to guarantee his security, given the threats made against him, including the attack on his person, and the murder of a close colleague. It is arguable that, in seeking to ensure this protection, Mr Delgado failed to address the competent authorities, making his complaints to the military authorities in Leticia, the teachers’ union, the Ministry of Education and the President of Colombia, rather than to the general prosecutor or the judiciary. It is unclear to the Committee whether these matters were reported to the police. It does not know either with certainty whether any measures were taken by the Government. However, the Committee cannot but note that the author claims that there was no response to his request to have these threats investigated and to receive protection, and that the State party has not informed the Committee otherwise. Indeed, the State party has failed to comply with the request by the Committee to provide it with information on any of the issues relevant to article 9 of the Covenant. Whereas the Committee is reluctant to make a finding of a violation in the absence of compelling evidence as to the facts, it is for the State party to inform the Committee if alleged facts are incorrect, or if they would not, in any event, indicate a violation of the Covenant. The Committee has, in its past jurisprudence, made clear that circumstances may cause it to assume facts in the author’s favour if the State party fails to reply or to address them. The pertinent factors in this case are that Mr Delgado had been engaged in a protracted confrontation with the authorities over his teaching and his employment. Criminal charges, later determined unfounded, had been brought against him and he had been suspended, with salary frozen. . . . Further, he was known to have instituted a variety of complaints against the ecclesiastical and scholastical authorities in Leticia. . . . Coupled with these factors were threats to his life. If the State party neither denies the threats nor co-operates with the Committee to explain whether the relevant authorities were aware of them, and, if so, what was done about them, the Committee must necessarily treat as correct allegations that the threats were known and that nothing was done. Accordingly, while fully understanding the situation in Colombia, the Committee finds that the State party has not taken, or has been unable to take, appropriate measures to ensure Mr Delgado’s right to security of his person under article 9, paragraph 1.

Note that the HRC recognized the appalling security situation in Colombia which would have impacted on the Colombian government’s ability to provide protection for individuals. In particular, it ‘fully understood the situation in Colombia’ and noted that Colombia may have been ‘unable to take’ the appropriate measures to protect Mr Delgado. Nevertheless, Colombia was found to have violated article 9(1). [11.04] The HRC’s decision in Delgado Páez illustrates that the right to personal security is independent of the guarantee of liberty, and has been followed,

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in this respect, in Bwalya v Zambia (314/88), Bahamonde v Equatorial Guinea (468/91), Tshishimbi v Zaire (542/93), Leehong v Jamaica (613/95), Dias v Angola (711/96), Chongwe v Zambia (821/98), Jiménez Vaca v Colombia (859/99), Njaru v Cameroon (1353/05), Gunaratna v Sri Lanka (1432/05), and Rajapakse v Sri Lanka (1250/04). [11.05]

JAYAWARDENE v SRI LANKA (916/00)

The author, a Sri Lankan parliamentarian, made the following complaint: ¶3.1. The author complains that allegations made by the President of Sri Lanka on the state-owned media, about his alleged involvement with the LTTE [the separatist group the Liberation Tigers of Tamil Eelam], put his life at risk. He claims that such allegations are tantamount to harassment and resulted from his efforts to draw attention to human rights issues in Sri Lanka. He claims that he has no opportunity to sue the President as she is immune from suit. ¶3.2. The author claims that the State party did not protect his life by refusing to grant him sufficient security despite the fact that he was receiving death threats. ¶3.3. The author further claims that the State party failed to investigate any of the complaints he made to the police on the issue of the death threats received against him.

The author gave details of death threats he received after the President’s allegations were aired. The HRC agreed that there had been violations of article 9: ¶7.2. In respect of the author’s claim that the allegations made publicly by the President of Sri Lanka put his life at risk, the Committee notes that the State party has not contested the fact that these statements were in fact made. It does contest that the author was the recipient of death threats subsequent to the President’s allegations but, on the basis of the detailed information provided by the author, the Committee is of the view that due weight must be given to the author’s allegations that such threats were received after the statements and the author feared for his life. For these reasons, and because the statements in question were made by the Head of State acting under immunity enacted by the State party, the Committee takes the view that the State party is responsible for a violation of the author’s right to security of person under article 9, paragraph 1, of the Covenant. ¶7.3. With regard to the author’s claim that the State party violated his rights under the Covenant by failing to investigate the complaints made by the author to the police in respect of death threats he had received, the Committee notes the State party’s contention that the author did not receive any death threats and that no complaints or reports of such threats were received. However, the State party has not provided any specific arguments or materials to refute the author’s detailed account of at least two complaints made by him to the police. In the circumstances, the Committee concludes that the failure of the State party to investigate these threats to the life of the author violated his right to security of person under article 9, paragraph 1, of the Covenant.

The ‘investigation’ duty entailed in article 9(1) mirrors similar duties of investigation regarding the right to life2 and freedom from torture and inhuman and degrading treatment.3 2

See [8.16]ff.

3

See [9.161]ff. See also [25.11]ff.

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[11.06] The Delgado Páez and Jayawardene decisions also reveal that the State is under an obligation to protect a person’s right to personal security against attacks by private persons. This is of importance, for example, to people who are being stalked, or are under genuine risk of attack, such as habitually battered spouses.4 Of course, the right is also activated when the threat to a person’s security arises from a person with governmental authority.5 [11.07]

OBODZINSKY v CANADA (1124/02)

The author complained of the initiation by the State of denationalization proceedings against him on the basis that his citizenship had been obtained by fraudulent means. In particular, the State suspected that he was a war criminal from the Second World War. The author claimed that the bringing of such proceedings threatened his security of the person, particularly his health, given his advanced age and pre-existing health problems. The HRC found that this claim was inadmissible: ¶5. The Committee . . . considers that the author has not demonstrated how the proceedings initiated against him by the State party constituted a violation of his right to security of person under article 9; the mere initiation of judicial proceedings against an individual does not directly affect the security of the person concerned, and indirect impacts on the health of the person concerned cannot be subsumed under the notion of ‘security of person’. . . .

The Right to ‘Liberty’ [11.08] General Comment 8 expands on the meaning of the right to liberty in article 9(1): GENERAL COMMENT 8 ¶1. Article 9 which deals with the right to liberty and security of persons has often been somewhat narrowly understood in reports by States parties, and they have therefore given incomplete information. The Committee points out that paragraph 1 is applicable to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc. It is true that some of the provisions of article 9 (part of para. 2 and the whole of para. 3) are only applicable to persons against whom criminal charges are brought. But the rest, and in particular the important guarantee laid down in paragraph 4, i.e. the right to control by a court of the legality of the detention, applies to all persons deprived of their liberty by arrest or detention. Furthermore, States parties have in accordance with article 2 (3) also to

4 See, in this respect, the concern expressed in Concluding Observations on Poland on the level of domestic violence, and ‘the shortage of provision of hostels and refuges for family members suffering from domestic violence’: (1999) UN doc CCPR/C/79/Add.110, para 14; see also Concluding Observations on Georgia (2002) CCPR/CO/74/GEO, para 14. See also [9.57]. 5 See also eg Tshishimbi v Zaire (542/93), para 5.4; Chongwe v Zambia (821/98), para 5.3; Marcellana and Gumanoy v Philippines (1560/07), paras 7.6–7.7; and Peiris v Sri Lanka (1862/09), para 7.5.

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ensure that an effective remedy is provided in other cases in which an individual claims to be deprived of his liberty in violation of the Covenant. . . .

[11.09] Most cases have concerned detention for the purposes of criminal justice. However, a number of cases have concerned detention for the purposes of immigration, such as Torres v Finland (291/88) [11.75] and A v Australia (560/93) [11.24]. Vuolanne v Finland (265/87) concerned detention for the purposes of military discipline [11.89]. A v New Zealand (754/97) concerned enforced detention for psychiatric treatment [11.22]. In Concluding Observations on the Republic of Moldova, the HRC talked of enforced quarantine measures: ¶13. The Committee notes with concern that, under a regulation promulgated in August 2009, persons with tuberculosis may be subjected to forcible detention in circumstances where he or she is deemed to have ‘avoided treatment’. In particular, the regulation is unclear as to what constitutes the avoidance of treatment and fails to provide, inter alia, for patient confidentiality or for the possibility for the judicial review of a decision to forcibly detain a patient (arts. 2, 9 and 26), The State party should urgently review this measure to bring it into line with the Covenant, ensuring that any coercive measures arising from public health concerns are duly balanced against respect for patients’ rights, guaranteeing judicial review and patient confidentiality and otherwise ensuring that persons with tuberculosis are treated humanely.

[11.10]

CELEPLI v SWEDEN (456/91)

In this case, Celepli was prohibited from travelling freely throughout the State, as he was confined to certain city limits. The State Party submitted the following: ¶4.5. The State party argues that article 9 of the Covenant, protecting the right to liberty and security of the person, prohibits unlawful arrest and detention, but does not apply to mere restrictions on liberty of movement which are covered by article 12. The State party argues that the restrictions on his freedom of movement were not so severe that his situation could be characterised as a deprivation of liberty within the meaning of article 9 of the Covenant. Moreover, the author was free to leave Sweden to go to another country of his choice.

The author responded: ¶5.3. With regard to the State party’s arguments that the restrictions on his freedom of movement cannot be considered to be so severe as to constitute a deprivation of liberty, the author argues that a residence restriction can be considered a deprivation of liberty when it is of considerable duration or when it has serious consequences. He claims that his condition, being under residence restriction for nearly seven years and having to report to the police three times a week for five years, was so severe as to amount to a deprivation of liberty, within the meaning of article 9 of the Covenant.

The HRC found the article 9 complaint ‘incompatible’ with the Covenant,6 so it apparently agreed with the State Party. Similarly, in Karker v France (833/98), a compulsory residence order, accompanied by restrictions upon the author’s movements within the State, did not raise article 9 issues.7 It seems that article 9 6

At para 6.1.

7

At para 8.5.

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therefore applies only to severe deprivations of liberty, such as incarceration within a certain building (eg one’s home,8 prison, psychiatric institution, immigration detention centre),9 rather than restrictions on one’s ability to move freely around a State, or an even smaller locality. The latter circumstances raise issues with regard to article 12 rather than article 9 [12.03]. In Concluding Observations on the United Kingdom, the HRC indicated that a restrictive ‘control order’ regime which imposed ‘curfews of up to 16 hours’ raised issues under article 9: it did not mention article 12 [11.37].

The Requirement of Legality [11.11] There are two permissible limitations to one’s right to liberty under article 9. First the deprivation of liberty must be ‘in accordance with procedures as are established by law’. Hence, arrest and subsequent detention must be specifically authorized and sufficiently circumscribed by law.10 Secondly, the law itself and the enforcement of that law must not be arbitrary. As in other contexts under the ICCPR, the prohibition of ‘arbitrary’ deprivations of liberty goes further than the prohibition of ‘unlawful’ deprivations, as ‘arbitrariness’ is a principle above rather than within the law.11 [11.12] An example of an ‘unlawful’ arrest occurred in Domukovsky et al v Georgia (623–624/95, 626–627/95). One of the authors was kidnapped from Azerbaijani territory by Georgian agents, in breach of Azerbaijani law.12 Indeed, this case appears to confirm that an arrest must be ‘lawful’ within the law of both the arresting State and the law of the State where the arrest takes place. Of course, in most cases, these States will be one and the same.13 [11.13] In Israil v Kazakhstan (2024/11), a violation of article 9(1) was found when the author was detained pending extradition for 11 months, when such detention was only permitted under the State’s law for three months.14 [11.14] In Concluding Observations on Trinidad and Tobago, the HRC was concerned about the sheer breadth of the discretion conferred on the police in relation to the power to make arrests: ¶16. The Committee is concerned about chapter 15.01 of the Police Act which enables any policemen to arrest persons without a warrant in a large number of circumstances. Such a 8 See General Comment 28, para 14. See also Gorji-Dinka v Cameroon (1134/02), para 5.4; Sultanova v Uzbekistan (915/00), para 7.8; and Yklymova v Turkmenistan (1460/06). 9 Nowak refers to detention in a ‘narrowly bounded location’, Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 212. 10 Y Dinstein, ‘Right to Life, Physical Integrity, and Liberty’, in L Henkin (ed), The International Bill of Rights (Columbia University Press, 1981), 130; see also [16.06]ff. 11 See also, on the meaning of ‘arbitrary’, [8.04] and [16.10]. However, see the Committee’s decision regarding the meaning of ‘lawful’, virtually equating it with ‘arbitrary’, in A v Australia (560/93) and C v Australia (900/99) in respect of art 9(4) [11.91]ff. 12 At para 18.2. 13 See generally Ch 4 on the territorial jurisdiction of States. See also Gridin v Russian Federation (770/97), para 8.1. 14 At para 9.2.

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vague formulation of the circumstances in the Act gives too generous an opportunity to the police to exercise this power. ¶ The Committee recommends that the State party confine its legislation so as to bring it into conformity with article 9.1 of the Covenant.

The Trinidadian law could have failed the requirement of ‘lawfulness’, as police powers were insufficiently circumscribed by law for the purposes of article 9(1). Alternatively, it could have failed the requirement of prohibiting arbitrary arrests, as such broad discretion did not guard sufficiently against arbitrariness.

‘Arbitrary’ Detention [11.15] The meaning of arbitrariness in the context of article 9(1) was considered in the following case: VAN ALPHEN v THE NETHERLANDS (305/88) The author was a Dutch solicitor who was arrested on suspicion of having been an accessory or accomplice to forgery and of filing false income tax returns. The author was detained for over nine weeks in an attempt to force him to provide information in relation to certain clients to the authorities. The author alleged that his arrest and detention were arbitrary and in violation of, inter alia, article 9(1) of the Covenant. In his opinion his arrest and detention were used deliberately to pressure him to give information that could be used in investigations against him or his clients. In finding a breach of article 9(1) of the Covenant, the HRC made the following comments: ¶5.6. The principal issue before the Committee is whether the author’s detention from 5 December 1983 to 9 February 1984 was arbitrary. It is uncontested that the Netherlands judicial authorities, in determining repeatedly whether to prolong the author’s detention, observed the rules governing pre-trial detention laid down in the Code of Criminal Procedure. It remains to be determined whether other factors may render an otherwise lawful detention arbitrary, and whether the author enjoys an absolute right to invoke his professional obligation to secrecy regardless of the circumstances of a criminal investigation. ¶5.7. In the instant case, the Committee has examined the reasons adduced by the State party for a prolongation of the author’s detention for a period of nine weeks. The Committee observes that the privilege that protects a lawyer–client relationship belongs to the tenets of most legal systems. But this privilege is intended to protect the client. In the case under consideration the client had waived the privilege. The Committee does not know the circumstances of the client’s decision to withdraw the duty of confidentiality in the case. However, the author himself was a suspect, and although he was freed from his duty of confidentiality, he was not obliged to assist the State in mounting a case against him. ¶5.8. The drafting history of article 9, paragraph 1, confirms that ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances.

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Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime. The State party has not shown that these factors were present in the instant case. It has, in fact, stated that the reason for the duration of the author’s detention ‘was that the applicant continued to invoke his obligation to maintain confidentiality despite the fact that the interested party had released him from his obligations in this respect’, and that ‘the importance of the criminal investigation necessitated detaining the applicant for reasons of accessibility’. Notwithstanding the waiver of the author’s professional duty of confidentiality, he was not obliged to provide such co-operation. The Committee therefore finds that the facts as submitted disclose a violation of article 9, paragraph 1, of the Covenant.

[11.16] Even if one’s initial arrest is not arbitrary, the subsequent period of detention may breach article 9(1). In Spakmo v Norway (631/95), the author was twice arrested for failure to abide by a police order to cease demolition work on a particular site. Both arrests conformed to article 9(1). However, the State Party failed to demonstrate that Spakmo’s detention for eight hours after the second arrest was reasonable, so the second detention breached article 9(1).15 [11.17] Other examples of violations of article 9(1) include cases where prisoners are kept in detention after their sentences have been served16 or after their release has been judicially ordered,17 instances of illegal abduction by State actors,18 cases where the detention contravenes municipal law,19 and cases where people are arrested for their political views.20 In Tshionga a Minanga v Zaire (366/89), the author was detained for half a day, apparently for the purposes of political persecution. This detention, despite its relative brevity, breached article 9(1).21 Furthermore, the HRC has criticized the Islamic Republic of Iran for ‘requiring repentance from detainees as a condition of their release from custody’.22 In Concluding Observations on the Ukraine, the HRC condemned the practice of ‘administrative detention’ of vagrants.23 [11.18]

TARIGHT v ALGERIA (1085/02)

¶8.3. . . . [P]retrial detention should be the exception and . . . bail should be granted, except in situations where the likelihood exists that the accused would abscond or destroy evidence, influence witnesses or flee from the jurisdiction of the State party. The drafting history of article 9, paragraph 1, confirms that ‘arbitrariness’ is not to be equated with ‘against 16 At para 6.3. See eg Weismann and Perdomo v Uruguay (8/77). See eg Bazzano v Uruguay (5/77), Ramirez v Uruguay (4/77), Carballal v Uruguay (33/78), de Bouton v Uruguay (37/78), Jijón v Ecuador (277/88). 18 López Burgos v Uruguay (52/79), Casariego v Uruguay (56/79). 19 Bolaños v Ecuador (238/87); Gómez Casafranca v Peru (981/01), para 7.2. 20 See eg Portorreal v Dominican Republic (188/84), Mukong v Cameroon (458/91), Blanco v Nicaragua (328/88). Political persecution also seemed to be the motive behind many of the detentions in early cases against Uruguay. 21 See also minority opinion in Giry v Dominican Republic (193/85), finding a breach of art 9(1) where the author was detained for 2 hours and 40 minutes prior to being forced aboard a flight to the United States. The majority dealt with this case under art 13: see [13.25]. 22 Concluding Observations on the Islamic Republic of Iran (1993) UN doc CCPR/C/79/Add.25, para 11. 23 (1995) UN doc CCPR/C/79/Add.52, para 13. 15 17

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the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and illegality. Further, continued pretrial detention following legal arrest must not only be lawful, but also reasonable in all respects. . . .

Unjustified pre-trial of detention, including the arbitrary denial of bail, has been found to breach article 9(1) in Taright, as well as Marinich v Belarus (1502/06)24 and Kulov v Kyrgysztan (1369/05). This circumstance also breaches the more specific right in article 9(3) [11.64]. [11.19]

REECE v JAMAICA (796/98)

The author’s death sentence was commuted to life imprisonment by the Governor General of Jamaica (the Queen’s representative), with an order that the length of his non-parole period not be determined for seven years. The commutation occurred pursuant to a higher court ruling that indicated that execution of the author’s death sentence would be unconstitutional.25 The author argued: ¶3.7. [The author] was not given any notice of where or how the decision to commute his sentence was taken. . . . [N]either he nor counsel were given any opportunity to make oral or written representations as to his non-parole period. He was not informed of the material or questions considered or principles applied by the Governor-General and the proceedings were not held in public. Moreover, the alleged failure to take into account the time the author served in custody prior to commutation of sentence (more than 12 years) when considering his non-parole period, is said to be a violation of his rights under article 9, paragraph 1 of the Covenant, in that he was subjected to arbitrary detention. He contends that the decision to commute his death sentence was effectively an extension of the original sentencing process, and that a non-parole period should have been set at the time the sentence was commuted. . . .

The HRC found no violation of article 9(1): ¶7.7. . . . [T]he Committee [does not] share the view that a substitution of the death penalty with life imprisonment, with a prospect of parole in the future, is a ‘re-sentencing’ tainted with arbitrariness. It follows from this conclusion that the author continued to be legitimately detained pursuant to the original sentence, as modified by the decision of commutation, and that no issue of detention contrary to article 9 arises. . . . 26

[11.20] More and more instances of detention are now outsourced to private companies. The HRC commented on this phenomenon regarding Guatemala:27 ¶16. The Committee regrets the growing delegation of citizens’ security functions to private companies without adequate registration or control. The Committee notes the adoption of the Private Security Services Act and the establishment of the Private Security Services Department. Nevertheless, the Committee regrets that the Act contains inaccuracies and that

24

At para 10.4. See Pratt and Morgan v Attorney General for Jamaica [1994] 2 AC 1, discussed in Kennedy v Trinidad and Tobago (845/98), para 6.3 [26.31]. 26 The HRC also refused to find a breach of art 14(1) [14.20]. 27 (2012) CCPR/C/GTM/CO/3. 25

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the Department has not yet been provided with the necessary resources and institutional support for fulfilment of its mandate (arts. 6, 7 and 9). The State party should ensure the registration and control of private security services by implementing Legislative Decree 52–2010, which regulates such services. In this context, the State party should provide the Private Security Services Department with the necessary resources for its functioning. It should also ensure the subordination of private to public security, and provide access to justice and effective reparation mechanisms for the victims of acts committed by private security companies. The State party should take measures to prevent persons involved in human rights violations from performing functions in private security forces. DETENTION IN PSYCHIATRIC INSTITUTIONS

[11.21]

FIJALKOWSKA v POLAND (1061/02)

The author was committed for psychiatric treatment against her will after a hearing in which she represented herself. The HRC found that her involuntary commitment breached article 9(1): ¶8.2. As to whether the State party violated article 9 of the Covenant by committing the author to a psychiatric institution, the Committee notes its prior jurisprudence that treatment in a psychiatric institution against the will of the patient constitutes a form of deprivation of liberty that falls under the terms of article 9 of the Covenant.28 As to whether the committal was lawful, the Committee notes that it was carried out in accordance with the relevant articles of the Mental Health Protection Act and was, thus, lawfully carried out. ¶8.3 Concerning the possible arbitrary nature of the author’s committal, the Committee finds it difficult to reconcile the State party’s view that although the author was recognized, in accordance with the Act, to suffer from deteriorating mental health and inability to provide for her basic needs, she was at the same time considered to be legally capable of acting on her own behalf. As to the State party’s argument that ‘mental illness cannot be equated to a lack of legal capacity’, the Committee considers that confinement of an individual to a psychiatric institution amounts to an acknowledgement of that individual’s diminished capacity, legal and otherwise. The Committee considers that the State party has a particular obligation to protect vulnerable persons within its jurisdiction, including the mentally impaired. It considers that as the author suffered from diminished capacity that might have affected her ability to take part effectively in the proceedings herself, the court should have been in a position to ensure that she was assisted or represented in a way sufficient to safeguard her rights throughout the proceedings. . . . The Committee acknowledges that circumstances may arise in which an individual’s mental health is so impaired that so as to avoid harm to the individual or others, the issuance of a committal order, without assistance or representation sufficient to safeguard her rights, may be unavoidable. In the present case, no such special circumstances have been advanced. For these reasons, the Committee finds that the author’s committal was arbitrary under article 9, paragraph 1, of the Covenant.

28

See A v New Zealand (754/97) [11.22].

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A v NEW ZEALAND (754/97)

In this case, the author was originally sentenced to imprisonment on charges of assault and intimidation. Whilst imprisoned, he was committed under the New Zealand Mental Health Act for detention in the maximum security section of a hospital. The author argued that the State was guilty of violations of article 9(1) because he was unlawfully and arbitrarily imprisoned from 1984 to 1993 in mental institutions. In particular, he made the following claims: ¶3.1. The author claims that his original detention under the Mental Health Act was unlawful, and that judge Unwin, not being convinced that he was mentally disordered, acted arbitrarily and unlawfully in not discharging him. ¶3.2. He further contends that the yearly review hearings by a panel of psychiatrists were unfair, in that he had no access to the documents they based themselves on and could not call any witnesses on his behalf. In his opinion, the hearings were orchestrated to continue his unlawful detention. ¶3.3. In support, the author states that numerous psychiatrists testified that he was not mentally ill and not committable. He emphasizes that his incarceration continued in spite of medical evidence that his mental state did not warrant continued detention and in spite of the fact that he had not committed any act of violence. He argues that, if at any point after the beginning of his detention at Lake Alice Hospital, he suffered from a mental disorder, this was caused by his unlawful and unjustified detention among mentally ill people with a history of violence by whom he felt threatened.

The HRC found that there was no violation of article 9(1): ¶7.2. The main issue before the Committee is whether the author’s detention under the Mental Health Act from 1984 to 1993 constituted a violation of the Covenant, in particular of article 9. The Committee notes that the author’s assessment under the Mental Health Act followed threatening and aggressive behaviour on the author’s part, and that the committal order was issued according to law, based on an opinion of three psychiatrists. Further, a panel of psychiatrists continued to review the author’s situation periodically. The Committee is therefore of the opinion that the deprivation of the author’s liberty was neither unlawful nor arbitrary and thus not in violation of article 9, paragraph 1, of the Covenant.

In a separate opinion, Messrs Pocar and Scheinin agreed that there had been no violation of article 9(1): We associate ourselves with the general points of departure taken by the Committee. Treatment in a psychiatric institution against the will of the patient is a form of deprivation of liberty that falls under the terms of article 9 of the Covenant. In an individual case there might well be a legitimate ground for such detention, and domestic law should prescribe both the criteria and procedures for assigning a person to compulsory psychiatric treatment. As a consequence, such treatment can be seen as a legitimate deprivation of liberty under the terms of article 9, paragraph 1. The special nature of compulsory psychiatric treatment as a form of deprivation of liberty lies in the fact that the treatment is legitimate only as long as the medical criteria necessitating it exist. In order to avoid compulsory psychiatric treatment from becoming arbitrary

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detention prohibited by article 9, paragraph 1, there must be a system of mandatory and periodic review of the medical-scientific grounds for continuing the detention. In the present case we are satisfied that the law of New Zealand, as applied in the case, met with the requirements of article 9, paragraph 1. The author was subject to a system of periodic expert review by a board of psychiatrists. Although the periodicity of one year appears to be rather infrequent, the facts of the case do not support a conclusion that this in itself resulted in a violation of the Covenant.

[11.23] In Concluding Observations on the Czech Republic,29 the HRC expressed concern over the ease with which a person could be confined against his or her will to a psychiatric institution: ¶14. The Committee expresses concern that confinement in psychiatric hospitals can be based on mere ‘signs of mental illness’. It regrets that court reviews of admissions to psychiatric institutions do not sufficiently ensure respect for the views of the patient and that guardianship is sometimes assigned to attorneys who do not meet the patient (arts. 9 and 16). The State party should ensure that no medically unnecessary psychiatric confinement takes place, that all persons without full legal capacity are placed under guardianship that genuinely represents and defends the wishes and interest of those persons, and that an effective judicial review of the lawfulness of the admission and detention of such person in health institutions takes place in each case. IMMIGRATION DETENTION

[11.24]

A v AUSTRALIA (560/93)

The author was a Cambodian national who, together with 25 other Cambodian nationals, had landed without a visa in Australia by boat on 25 November 1989. Shortly after his arrival he applied for refugee status. This application was rejected by the Determination of Refugee Status Committee in 1990. The author continued to appeal his refugee status, whilst using legal mechanisms to restrain the government from deporting him. The author was detained for the entire time that his refugee status was being determined, a period of over four years. Ultimately, the author was released and given an entry permit in January 1994 on humanitarian grounds. The author argued that he had been detained arbitrarily within the meaning of article 9(1): ¶3.3. It is contended that the State party’s policy of detaining boat people is inappropriate, unjustified and arbitrary, as its principal purpose is to deter other boat people from coming to Australia, and to deter those already in the country from continuing with applications for refugee status. The application of the new legislation is said to amount to ‘human deterrence’, based on the practice of rigidly detaining asylum-seekers under such conditions and for periods so prolonged that prospective asylum-seekers are deterred from even applying for refugee status, and current asylum-seekers lose all hope and return home.

29 (2007) UN doc CCPR/C/CZE/CO/2. See also Concluding Observations on the Russian Federation (2009) UN doc CCPR/C/RUS/CO/6, para 19; Belgium (2010) UN doc CCPR/C/BEL/CO/5, para 19; Bulgaria (2011) UN doc CCPR/C/BGR/CO/3, para 17.

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¶3.4. No valid grounds are said to exist for the detention of the author . . . Furthermore, the length of detention—1,299 days or three years and 204 days as at 20 June 1993—is said to amount to a breach of article 9, paragraph 1.

Australia submitted the following arguments in justification of the author’s detention: ¶7.1. [The State party] recalls that Australia’s policy of detention of unauthorized arrivals is part of its immigration policy. Its rationale is to ensure that unauthorized entrants do not enter the Australian community until their alleged entitlement to do so has been properly assessed and found to justify entry. Detention seeks to ensure that whoever enters Australian territory without authorization can have any claim to remain in the country examined and if the claim is rejected, will be available for removal. The State party notes that from late 1989, there was a sudden and unprecedented increase of applications for refugee status from individuals who had landed on the country’s shores. This led to severe delays in the length of detention of applicants, as well as to reforms in the law and procedures for determination of on-shore applications for protection visas. ¶7.2. As to the necessity of detention, the State party recalls that unauthorized arrivals who landed on Australian shores in 1990 and early 1991 were held in unfenced migrant accommodation hostels with a reporting requirement. However, security arrangements had to be upgraded, as a result of the number of detainees who absconded and the difficulty in obtaining cooperation from local ethnic communities to recover individuals who had not met their reporting obligations; 59 persons who had arrived by boat escaped from detention between 1991 and October 1993. Of the individuals who were allowed to reside in the community while their refugee status applications were being determined, it is noted that out of a group of 8,000 individuals who had been refused refugee status, some 27% remained unlawfully on Australian territory, without any authority to remain. ¶7.3. The State party points out that its policy of mandatory detention for certain border claimants should be considered in the light of its full and detailed consideration of refugee claims, and its extensive opportunities to challenge adverse decisions on claims to refugee status. Given the complexity of the case, the time it took to collect information on the continuously changing situation in Cambodia and for A’s legal advisers to make submissions, the duration of the author’s detention was not abusively long. Furthermore, the conditions of detention of A were not harsh, prison-like or otherwise unduly restrictive. . . . ¶7.5. As to the claim under article 9, paragraph 1, the State party argues that the author’s detention was lawful and not arbitrary on any ground. A entered Australia without authorization, and subsequently applied for the right to remain on refugee status basis. Initially, he was held pending examination of his application. His subsequent detention was related to his appeals against the decisions refusing his application, which made him liable to deportation. Detention was considered necessary primarily to prevent him from absconding into the Australian community. ¶7.6. . . . [T]he State party contends, detention in a case such as the author’s was not disproportionate nor unjust; it was also predictable, in that the applicable Australian law had been widely publicized. To the State party, counsel’s argument that it is inappropriate per se to detain individuals entering Australia in an unauthorized manner is not borne out by any of the provisions of the Covenant.

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The HRC delivered the following judgment in favour of the author: ¶9.2. On the first question, the Committee recalls that the notion of ‘arbitrariness’ must not be equated with ‘against the law’ but be interpreted more broadly to include such elements as inappropriateness and injustice. Furthermore, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context. The State party however, seeks to justify the author’s detention by the fact that he entered Australia unlawfully and by the perceived incentive for the applicant to abscond if left in liberty. The question for the Committee is whether these grounds are sufficient to justify indefinite and prolonged detention. ¶9.3. The Committee agrees that there is no basis for the author’s claim that it is per se arbitrary to detain individuals requesting asylum. Nor can it find any support for the contention that there is a rule of customary international law which would render all such detention arbitrary. ¶9.4. The Committee observes however, that every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed. In any event, detention should not continue beyond the period for which the State can provide appropriate justification. For example, the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individuals, such as the likelihood of absconding and lack of cooperation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal. In the instant case, the State party has not advanced any grounds particular to the author’s case, which would justify his continued detention for a period of four years, during which he was shifted around between different detention centres. The Committee therefore concludes that the author’s detention for a period of over four years was arbitrary within the meaning of article 9, paragraph 1.

The HRC did not condemn the notion of immigration detention per se, nor did it specifically condemn the extraordinary length of the author’s detention. The HRC was particularly concerned that the author was not apparently afforded any individual consideration with regard to the need to detain him pending deportation. The HRC essentially condemned the State Party’s blanket policy of detaining all persons in the author’s circumstances (so-called ‘boat people’).30 [11.25]

C v AUSTRALIA (900/99)

As in A v Australia, the author, ‘C’, was compulsorily detained after his unauthorized arrival in Australia and subsequent asylum claim, pending determination of his entitlement to asylum under Australian law. The author claimed that his detention breached article 9(1) in a similar manner to the breach in A v Australia. The State Party attempted to justify the author’s detention in the following terms: ¶4.26. The State party underscores that mandatory immigration detention is an exceptional measure primarily reserved for people who arrive in Australia without authorization. It is necessary to ensure that persons entering Australia are entitled to do so, and to ensure 30 In this regard, see also the HRC’s condemnation of the practice of ‘collective punishment for those found guilty of collective crimes’: Concluding Observations on Libyan Arab Jamahiriya (1999) UN doc CCPR/C/79/Add.101, para 12.

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that the integrity of the migration system is upheld. The detention of unauthorized arrivals ensures that they do not enter Australia before their claims have been properly assessed and found to justify entry. It also provides officials with effective access to those persons in order to investigate and process their claims without delay, and if those claims are unwarranted, to remove such persons as soon as possible. The State party argues that the detention of unauthorized arrivals is consistent with fundamental rights of sovereignty, including the right of States to control the entry of persons into its territory. As the State party has no system of identity cards or the like for access to social services, it is more difficult to detect, monitor and apprehend illegal immigrants in the community, compared with countries where such a system is in place. ¶4.27. The State party’s experience has been that unless detention is strictly controlled, there is a strong likelihood that people will escape and abscond into the community. In some cases, some unauthorized arrivals who had been held in unfenced migrant hostels with a reporting requirement had absconded. It had also been difficult to gain the cooperation of the local ethnic communities to locate such persons. As such, it was reasonably suspected that if people were not detained, but rather released in the interim into the community, there would be a strong incentive for them not to adhere to the conditions of release and to disappear into the community. The State party repeats that all applications to enter or remain are thoroughly considered, on a case-by-case basis, and that therefore its policy of detaining unauthorized arrivals is reasonable, proportionate and necessary in all of the circumstances. As such, the provisions under which the author was detained, while requiring mandatory detention, were not arbitrary, as they were justifiable and proportionate on the grounds outlined above. ¶4.28. In addition, the individual factors of the author’s detention also indicate the absence of arbitrariness. He arrived with a visitor’s visa but no return airline ticket, and when questioned at the airport a number of false statements on his visa application form were detected. These included the assertion that his mother and father were living in Iran, when in fact his father was dead and his mother was living in Australia and had applied for refugee status. He also stated that he had $5,000 in funds for his visit, but arrived with no funds and lied in the interview about this matter. He had also purchased a return ticket for the purposes of gaining his visa, but had cashed it in when the visa was granted. As such, it was reasonably suspected that if allowed to enter Australia, he would become an illegal entrant. The detention was accordingly necessary to prevent abscondment, it was not disproportionate to the end sought, and it was not unpredictable, given that the relevant detention provisions had been in force for some time and were published. . . . ¶4.31. The State party, while disagreeing with the Committee’s Views in A v Australia, notes significant factual differences with that case. Firstly, the length of detention was significantly less (some 26 months rather than 4 years). Secondly, the time taken to process the initial application was significantly less (under 6 weeks rather than 77 weeks). Thirdly, in this case, there is no suggestion that the period and conditions of detention prevented the author from gaining access to legal representation or visits from his family. Finally, he was actually released from the usual places of detention into the care and custody of family members pursuant to an exercise of Executive discretion.

The HRC reaffirmed its stance in A v Australia, and found in favour of the author: ¶8.2. As to the claims relating to the first period of detention, in terms of article 9, paragraph 1, the Committee recalls its jurisprudence that, in order to avoid a characterization of

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arbitrariness, detention should not continue beyond the period for which the State party can provide appropriate justification. In the present case, the author’s detention as a non-citizen without an entry permit continued, in mandatory terms, until he was removed or granted a permit. While the State party advances particular reasons to justify the individual detention (para. 4.28 et seq.), the Committee observes that the State party has failed to demonstrate that those reasons justify the author’s continued detention in the light of the passage of time and intervening circumstances. In particular, the State party has not demonstrated that, in the light of the author’s particular circumstances, there were not less invasive means of achieving the same ends, that is to say, compliance with the State party’s immigration policies, by, for example, the imposition of reporting obligations, sureties or other conditions which would take account of the author’s deteriorating condition. In these circumstances, whatever the reasons for the original detention, continuance of immigration detention for over two years without individual justification and without any chance of substantive judicial review was, in the Committee’s view, arbitrary and constituted a violation of article 9, paragraph 1.

[11.26] The Committee again found Australia in violation of article 9(1), for similar reasons as in A v Australia and C v Australia in Baban v Australia (1014/01), Shafiq v Australia (1324/04), Shams et al v Australia (1255, 1256, 1259, 1260, 1266, 1268, 1270, and 1288/04), Bakhtiyari v Australia (1069/02), and D and E v Australia (1050/02). In Bakhtiyari v Australia (1069/02), similar violations were found with regard to most of the complainants. However, with regard to one complainant, Mr Bakhtiayari, no such violation was found as he was only detained for a period of two months.31 Therefore, perhaps a blanket requirement that unlawful arrivals be detained for a short period of time might be acceptable. [11.27] In Madafferi v Australia (1011/01), the author was taken into mandatory immigration detention after he was discovered to be living in Australia on an expired visa. He was placed there after his application for residency rights (on the grounds of his marriage to a citizen) was refused. In those circumstances, his detention was found not to breach article 9(1). Australia evidently adduced enough evidence to justify the personal detention of Mr Madafferi, unlike those in other cases. However, it may be noted that there was no process for determining that Madafferi should be detained: detention for people in his position was mandatory. Therefore, it is arguable that this aspect of the decision is wrong, as there was no real individual consideration of the need to detain Madafferi. [11.28] The Committee has expressed concern over the extended detention of immigrants in a number of Concluding Observations. For example, in its 1998 Comments on Japan, the HRC expressed concern that asylum-seekers were held for ‘periods of up to six months and, in some cases, even up to two years’.32 Regarding Switzerland, the Committee seemed to adopt an even stricter approach:33 31

At para 9.2. (1998) UN doc CCPR/C/79/Add.102, para 19; see also Concluding Observations on the United Kingdom (Hong Kong) (1995) UN doc CCPR/C/79/Add.57, para 17; United Kingdom (1995) UN doc CCPR/C/79/Add.55, para 16; United States (1995) UN doc CCPR/C/79/Add.50, paras 18 and 33; Sweden (1995) UN doc CCPR/C/79/Add.58, para 15. 33 (1996) UN doc CCPR/C/79/Add.70. 32

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¶15. The Committee notes with concern that [Swiss law] permits the administrative detention of foreign nationals without a temporary or permanent residence permit, including asylum-seekers and minors over the age of 15, for three months while the decision on the right of temporary residence is being prepared, and for a further six months, and even one year with the agreement of the judicial authority, pending expulsion. The Committee notes that these time-limits are considerably in excess of what is necessary, particularly in the case of detention pending expulsion. . . .

Regarding the United Kingdom, the HRC has expressed concern over the detention of asylum-seekers, even in situations where their asylum request has been finally refused, for ‘extend[ed] periods when deportation might be impossible for legal or other considerations’.34 [11.29]

JALLOH v NETHERLANDS (794/98)

The author, an asylum-seeker, complained of his detention for three-and-a-half months by the Dutch government. The State Party responded that the decision to detain was taken after the author had absconded from an open facility, difficulties in ascertaining his identity, and ‘serious grounds for suspicion that he would evade expulsion’35 in the event of a deportation order being issued. He was released once it became clear that ‘there was no realistic prospect of expelling him’.36 The HRC found that the detention did not violate article 9(1): ¶8.2. With regard to the author’s claim that his rights under article 9 have been violated, the Committee notes that his detention was lawful under Dutch law, section 26 of the Aliens Act. The Committee further notes that the author had his detention reviewed by the courts on two occasions, once twelve days after the beginning of his detention, and again two months later. On both occasions, the Court found that the author’s continued detention was lawful, because he had evaded expulsion before, because there were doubts as to his identity, and because there were reasonable prospects for expulsion, as an identity investigation was still ongoing. The question remains therefore as to whether his detention was arbitrary. Recalling its previous jurisprudence the Committee notes that ‘arbitrariness’ must be interpreted more broadly than ‘against the law’ to include elements of unreasonableness. Considering the author’s flight from the open facility at which he was accommodated from the time of his arrival for around 11 months, the Committee considers that it was not unreasonable to have detained the author for a limited time until the administrative procedure relating to his case was completed. Once a reasonable prospect of expelling him no longer existed his detention was terminated. In the circumstances, the Committee finds that the author’s detention was not arbitrary and thus not in violation of article 9 of the Covenant. NATIONAL SECURITY DETENTION

[11.30]

AHANI v CANADA (1051/02)

In this case, the author complained that he had been detained arbitrarily by the State for nine years on security grounds. The HRC found that there had been no breach of article 9(1): 34 36

(2001) UN doc CCPR/CO/73/UK, para 16. At para 2.3, as admitted by the author.

35

At para 4.2

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¶10.2. As to the claims under article 9 concerning arbitrary detention and lack of access to court, the Committee notes the author’s argument that his detention pursuant to the security certificate as well as his continued detention until deportation was in violation of this article. The Committee observes that, while the author was mandatorily taken into detention upon issuance of the security certificate, under the State party’s law the Federal Court is to promptly, that is within a week, examine the certificate and its evidentiary foundation in order to determine its ‘reasonableness’. In the event that the certificate is determined not to be reasonable, the person named in the certificate is released. The Committee observes, consistent with its earlier jurisprudence, that detention on the basis of a security certification by two Ministers on national security grounds does not result ipso facto in arbitrary detention, contrary to article 9, paragraph 1. . . .

However, as noted below, the circumstances of this detention did breach article 9(4) [11.76]. As the latter violation was found, Mrs Chanet found in a separate opinion that Article 9(1) must also have been violated.37 PREVENTIVE DETENTION

[11.31]

GENERAL COMMENT 8

¶4. Also if so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions, i.e. it must not be arbitrary, and must be based on grounds and procedures established by law (para. 1), information of the reasons must be given (para. 2) and court control of the detention must be available (para. 4) as well as compensation in the case of a breach (para. 5). And if, in addition, criminal charges are brought in such cases, the full protection of article 9 (2) and (3), as well as article 14, must also be granted.

[11.32]

RAMEKA et al v NEW ZEALAND (1090/02)

This case concerned a challenge to preventive detention. The first author, Rameka was convicted of two counts of rape in 1996. For the second rape conviction he received a sentence of 14 years. For the first charge of rape he was sentenced to preventive detention, that is indefinite detention until he was released by the parole board. This sentence was imposed due to his perceived dangerousness and the likelihood of reoffending if released. The second author, Harris, was convicted of sexual offences. While the judge said that his offences warranted a finite sentence of no less than seven-and-a-half years, he too was sentenced to preventive detention. Under New Zealand law, persons under preventative sentence could not seek parole until ten years had elapsed. They alleged that their preventive detention regimes breached article 9(1): ¶3.2. [T]he authors contend that it was arbitrary to impose a discretionary sentence on the basis of evidence of future dangerousness, as such a conclusion cannot satisfy the statutory tests of ‘substantial risk of re-offending’ or ‘expedient for the protection of the public’ in the individual case. They point to several writers who caution about the difficulties of predicting of future criminal behaviour and relying on statistical classes and patterns. 37

See also Concluding Observations on Canada (2006) UN doc CCPR/C/CAN/CO/5, para 14.

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The HRC majority found no violation of article 9(1): ¶7.3. Turning to the issue of the consistency with the Covenant of the sentences of preventive detention of . . . Messrs. Rameka and Harris, once the non-parole period of ten years expires, the Committee observes that after the ten-year period has elapsed, there are compulsory annual reviews by the independent Parole Board, with the power to order the prisoner’s release if they are no longer a significant danger to the public, and that the decisions of the Board are subject to judicial review. The Committee considers that the remaining authors’ detention for preventive purposes, that is, protection of the public, once a punitive term of imprisonment has been served, must be justified by compelling reasons, reviewable by a judicial authority, that are and remain applicable as long as detention for these purposes continues. The requirement that such continued detention be free from arbitrariness must thus be assured by regular periodic reviews of the individual case by an independent body, in order to determine the continued justification of detention for purposes of protection of the public. The Committee is of the view that the remaining authors have failed to show that the compulsory annual reviews of detention by the Parole Board, the decisions of which are subject to judicial review in the High Court and Court of Appeal, are insufficient to meet this standard. Accordingly, the remaining authors have not demonstrated, at the present time, that the future operation of the sentences they have begun to serve will amount to arbitrary detention, contrary to article 9, once the preventive aspect of their sentences commences.

Therefore, the majority found that preventive detention was permissible under the Covenant so long as adequate safeguards were in place, and the sentence was regularly reviewed. The review of Mr Harris’s sentence was found to be inadequate and therefore in breach of article 9(4) [11.79]. [11.33] In Rameka, Messrs Bhagwati, Glele Ahanhanzo, and Hipolito Solari Yrigoyen, and Ms Chanet issued a joint dissenting opinion, and found a violation of article 9(1): In our view, the arbitrariness of such detention, even if the detention is lawful, lies in the assessment made of the possibility of the commission of a repeat offence. The science underlying the assessment in question is unsound. How can anyone seriously assert that there is a ‘20% likelihood’ that a person will re-offend? To our way of thinking, preventive detention based on a forecast made according to such vague criteria is contrary to article 9, paragraph 1, of the Covenant.

These dissenters also suggested that preventive detention breached articles 14 and 15. In a separate dissent, Mr Lallah was clearer in finding that preventive detention breached both articles 14 and 15. [11.34] Rameka was followed in Dean v New Zealand (1512/06). The entire HRC in the later case agreed that preventive detention was not per se prohibited under article 9(1). [11.35]

FARDON v AUSTRALIA (1629/07)

In 1989, the author was convicted of sexual offences in Queensland and sentenced to 14 years’ imprisonment. In 2003, the Dangerous Prisoners (Sexual Offenders)

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Act (Queensland) 2003 (DPSOA) was enacted, which provided for the continued detention of dangerous sexual offenders by court order. Upon application by the Queensland Attorney-General, a court issued a continuing detention order, meaning that the author was detained beyond the expiry of his sentence. The author claimed that this circumstance breached article 9(1). Australia justified the regime thus: ¶4.2. With regard to the author’s allegation that his detention under the DPSOA was arbitrary, the State party submits that his detention was lawful, reasonable and necessary in all circumstances. The author, as a repeat sexual offender, needed intensive counselling and rehabilitation programs, which are not available in psychiatric facilities. Furthermore, the author refused to participate in any rehabilitation program during his initial prison term. His preventive detention was subject to periodic independent review and fulfilled the stated aims of providing rehabilitation and protection of the community. The State party explains that the author’s detention was based on procedures under the DPSOA, a law the State party’s High Court found to be constitutional. According to the DPSOA, a continuing detention order is only made if there is an unacceptable risk that the prisoner may commit a sexual offence if released. Medical, psychological and psychiatric assessments from at least two independent experts evaluate the prisoner’s propensity to commit serious sexual offences in the future, and the prisoner’s participation during the initial detention period in rehabilitation programs. The author’s continuing detention order was imposed following a full hearing before the Queensland Supreme Court, which found that supervised release was not appropriate in the author’s case. Recalling the Committee’s jurisprudence on preventive detention, the State party underlines that the author’s preventive detention was subject to an annual review by an independent judicial body, notably the Queensland Supreme Court. To return the author to a detention facility with access to individualized rehabilitation programs was therefore, in light of his needs, reasonably proportionate to the objectives of the DPSOA.

The HRC disagreed and found a violation of article 9(1): ¶7.3. The Committee observes that Article 9 paragraph 1 of the Covenant recognises for everyone the right to liberty and the security of his person and that no-one may be subjected to arbitrary arrest or detention. The Article, however, provides for certain permissible limitations on this right, by way of detention, where the grounds and the procedures for doing so are established by law. Such limitations are indeed permissible and exist in most countries in laws which have for object, for example, immigration control or the institutionalised care of persons suffering from mental illness or other conditions harmful to themselves or society. However, limitations as part of, or consequent upon, punishment for criminal offences may give rise to particular difficulties. In the view of the Committee, in these cases, the formal prescription of the grounds and procedures in a law which is envisaged to render these limitations permissible is not sufficient if the grounds and the procedures so prescribed are themselves either arbitrary or unreasonably or unnecessarily destructive of the right itself. ¶7.4. The question presently before the Committee is whether, in their application to the author, the provisions of the DPSOA under which the author continued to be detained at the conclusion of his 14-year term of imprisonment were arbitrary. The Committee has come to the conclusion that they were arbitrary and, consequently, in violation of Article 9

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paragraph 1 of the Covenant, for a number of reasons, each of which would, by itself, constitute a violation. The most significant of these reasons are the following: (1) The author had already served his 14 year term of imprisonment and yet he continued, in actual fact, to be subjected to imprisonment in pursuance of a law which characterises his continued incarceration under the same prison regime as detention. This purported detention amounted, in substance, to a fresh term of imprisonment which, unlike detention proper, is not permissible in the absence of a conviction for which imprisonment is a sentence prescribed by law. (2) Imprisonment is penal in character. It can only be imposed on conviction for an offence in the same proceedings in which the offence is tried. The author’s further term of imprisonment was the result of Court orders made, some 14 years after his conviction and sentence, in respect of predicted future criminal conduct which had its basis in the very offence for which he had already served his sentence. This new sentence was the result of fresh proceedings, though nominally characterised as ‘civil proceedings’, and fall within the prohibition of Article 15 paragraph 1 of the Covenant. In this regard, the Committee further observes that, since the DPSOA was enacted in 2003 shortly before the expiry of the author’s sentence for an offence for which he had been convicted in 1989 and which became an essential element in the Court orders for his continued incarceration, the DPSOA was being retroactively applied to the author. This also falls within the prohibition of Article 15 paragraph 1 of the Covenant, in that he has been subjected to a heavier penalty ‘than was applicable at the time when the criminal offence was committed’. The Committee therefore considers that detention pursuant to proceedings incompatible with article 15 is necessarily arbitrary within the meaning of article 9, paragraph 1, of the Covenant. (3) The DPSOA prescribed a particular procedure to obtain the relevant Court orders. This particular procedure, as the State Party conceded, was designed to be civil in character. It did not, therefore, meet the due process guarantees required under Article 14 of the Covenant for a fair trial in which a penal sentence is imposed. (4) The ‘detention’ of the author as a ‘prisoner’ under the DPSOA was ordered because it was feared that he might be a danger to the community in the future and for purposes of his rehabilitation. The concept of feared or predicted dangerousness to the community applicable in the case of past offenders is inherently problematic. It is essentially based on opinion as distinct from factual evidence, even if that evidence consists in the opinion of psychiatric experts. But psychiatry is not an exact science. The DPSOA, on the one hand, requires the Court to have regard to the opinion of psychiatric experts on future dangerousness but, on the other hand, requires the Court to make a finding of fact of dangerousness. While Courts are free to accept or reject expert opinion and are required to consider all other available relevant evidence, the reality is that the Courts must make a finding of fact on the suspected future behaviour of a past offender which may or may not materialise. To avoid arbitrariness, in these circumstances, the State Party should have demonstrated that the author’s rehabilitation could not have been achieved by means less intrusive than continued imprisonment or even detention, particularly as the State Party had a continuing obligation under Article 10 paragraph 3 of the Covenant to adopt meaningful measures for the reformation, if indeed it was needed, of the author throughout the 14 years during which he was in prison.

The HRC reached a similar decision in Tillman v Australia (1635/07).

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[11.36] There are key differences between the preventive detention schemes challenged in the New Zealand cases, which complied with article 9(1), and in the Australian cases, where they did not. In the New Zealand cases, the sentences of preventive detention were imposed by courts pursuant to criminal proceedings under pre-existing legislation at the time the complainants were convicted. In the Australian cases, the periods of ‘continuing detention’, imposed for preventive purposes, were tacked on to the end of completed sentences by courts in civil proceedings pursuant to legislation retrospectively applied to the complainants.38 [11.37] One form of preventive detention arises from ‘control orders’, orders which restrict a person’s movements and which can involve curfews. The HRC expressed concern over the control order regime in the United Kingdom:39 ¶17. The Committee is concerned about the control order regime established under the Prevention of Terrorism Act 2005 which involves the imposition of a wide range of restrictions, including curfews of up to 16 hours, on individuals suspected of being ‘involved in terrorism’, but who have not been charged with any criminal offence. While control orders have been categorized by the House of Lords as civil orders, they can give rise to criminal liability if breached. . . . REVOCATION OR REFUSAL OF PAROLE

[11.38]

BENJAMIN MANUEL v NEW ZEALAND (1385/05)

The author was convicted of murder in 1984 and released on parole in 1993. On parole, he committed a number of offences. He was sentenced to four months’ imprisonment in respect of some of those offences. His parole was also revoked so he had to serve out the remainder of his original murder conviction. He claimed a violation of article 9(1) in respect of the revocation of his parole. The HRC disagreed: ¶7.2. As to the claim that the author’s recall was not justified by his underlying conduct, and was therefore arbitrary in breach of article 9, paragraph 1, the Committee must first assess the extent to which article 9 of the Covenant applies in the context of early release on parole and recall. Assuming arguendo that his arrest on the initial warrant while on parole deprived him of liberty, within the meaning of article 9, paragraph 1, such deprivation must be both lawful and not arbitrary. In contrast to the purely preventive detention at issue in Rameka [11.32], the author’s recall meant that he resumed a pre-existing sentence. The State party concedes that the recall decision was taken for protective/preventive purposes given the risk he posed to the public in the future. In order to avoid a characterization of arbitrariness, the State party must demonstrate that recall to detention was not unjustified by the underlying conduct, and that the ensuing detention is regularly reviewed by an independent body. ¶7.3. The Committee notes that to recall an individual convicted of a violent offence from parole to continue sentence after commission of non-violent acts while on parole may arguendo in certain circumstances be arbitrary under the Covenant. The Committee need 38 39

See also Concluding Observations on France (2008) UN doc CCPR/C/FRA/CO/4, para 16. Concluding Observations on the United Kingdom (2008) UN doc CCPR/C/GBR/CO/6.

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not decide that issue, as in the present case, the author, who had been convicted of murder, engaged in violent or dangerous conduct after his release on parole. This conduct was of sufficient nexus to the underlying conviction that his recall to continue serving that term was justified in the interests of public safety, and the author has not shown otherwise. The Committee also notes that the author’s ongoing detention was reviewed at least once a year by the Parole Board, a body subject to judicial review which it found to satisfy the necessary requirements of independence in Rameka. The Committee thus concludes that the author’s recall was not arbitrary within the meaning of article 9, paragraph 1, of the Covenant.

Therefore, the HRC indicates that revocation of parole can raise issues under article 9(1) and should not be automatic upon reoffending. [11.39]

DE LEÓN CASTRO v SPAIN (1388/05)

The author was convicted of fraud in 2001. He was imprisoned in April 2003 after his appeal was dismissed. A new and tougher parole regime, introduced in July 2003, was introduced in July 2003 and retrospectively applied to him. He claimed that the application of this regime meant that he was denied parole, and therefore imprisoned arbitrarily under article 9(1). The HRC majority found no such violation: ¶9.3. With regard to the author’s allegations that the retroactive application of Act No. 7/2003 of 31 July 2003 limited his access to prison privileges, including parole, and that the processing of his applications for parole was delayed in order to oblige him to serve his entire prison sentence, the Committee must decide whether these claims constitute a violation of article 9, paragraph 1, of the Covenant. The Committee observes that the various complaints made by the author to the prison and judicial authorities were dealt with by those authorities and that, as a result, the author obtained progressively increasing prison privileges. His complaints were addressed in accordance with the legislation in force, and the resulting judicial decisions made available to the Committee by the author were reasoned. The Committee cannot conclude, in view of the documents in the case file, that the denial of parole to the author made his imprisonment for the entire duration of his sentence arbitrary within the meaning of article 9, paragraph 1, of the Covenant.

The majority in fact found no violation of the ICCPR. Mrs Wedgwood dissented, and found a violation of article 15 due to the retrospective application of the regime to the author [15.11]. It is submitted that her decision is preferable. PROPORTIONALITY OF SENTENCE

[11.40] In A v Australia [11.24], the HRC clearly indicated that detention is arbitrary if disproportionate in the prevailing circumstances. Therefore, a gaol term must not be totally disproportionate to the severity of the crime committed. Punishment must fit the crime. In this respect, note the following comment by the HRC from Concluding Observations on Australia in 2000:40

40

(2000) UN doc A/55/40, para 522. See also [8.57].

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¶522. Legislation regarding mandatory imprisonment in Western Australia and the Northern Territory, which leads in many cases to imposition of punishments that are disproportionate to the seriousness of the crimes committed and would seem to be inconsistent with the strategies adopted by the State party to reduce the over-representation of indigenous persons in the criminal justice system, raises serious issues of compliance with various articles of the Covenant. The State party is urged to reassess the legislation regarding mandatory imprisonment so as to ensure that all Covenant rights are respected.

[11.41]

FERNANDO v SRI LANKA (1189/03)

In this case, the author was found guilty of contempt of court by raising his voice and failing to apologise to the judges. He was sentenced to one year in prison with hard labour. The HRC found a breach of article 9(1) in the following terms: ¶9.2. The Committee notes that courts notably in Common Law jurisdictions have traditionally enjoyed authority to maintain order and dignity in court debates by the exercise of a summary power to impose penalties for ‘contempt of court.’ But here, the only disruption indicated by the State party is the repetitious filing of motions by the author, for which an imposition of financial penalties would have evidently been sufficient, and one instance of ‘rais[ing] his voice’ in the presence of the court and refusing thereafter to apologize. The penalty imposed was a one year term of ‘Rigorous Imprisonment’. No reasoned explanation has been provided by the court or the State party as to why such a severe and summary penalty was warranted, in the exercise of a court’s power to maintain orderly proceedings. Article 9, paragraph 1, of the Covenant forbids any ‘arbitrary’ deprivation of liberty. The imposition of a draconian penalty without adequate explanation and without independent procedural safeguards falls within that prohibition. The fact that an act constituting a violation of article 9, paragraph 1 is committed by the judicial branch of government cannot prevent the engagement of the responsibility of the State party as a whole. The Committee concludes that the author’s detention was arbitrary, in violation of article 9, paragraph 1.

[11.42]

DISSANAYAKE v SRI LANKA (1373/05)

This case had similar facts to Fernando, as is evident in the HRC’s finding of violation: ¶8.3. In the current case, the author was sentenced to two years rigorous imprisonment for having stated at a public meeting that he would not accept any ‘disgraceful decision’ of the Supreme Court, in relation to a pending opinion on the exercise of defence powers between the President and the Minister of Defence. As argued by the State party, and confirmed on a review of the judgement itself, it would appear that the word ‘disgraceful’ was considered by the Court as a ‘mild’ translation of the word uttered. The State party refers to the Supreme Court’s argument that the sentence was ‘deterrent’ in nature, given the fact that the author had previously been charged with contempt but had not been convicted because of his apology. It would thus appear that the severity of the author’s sentence was based on two contempt charges, of one of which he had not been convicted. In addition, the Committee notes that the State party has provided no explanation of why summary

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proceedings were necessary in this case, particularly in light of the fact that the incident leading to the charge had not been made in the ‘face of the court’. The Committee finds that neither the Court nor the State party has provided any reasoned explanation as to why such a severe and summary penalty was warranted, in the exercise of the Court’s power to maintain orderly proceedings, if indeed the provision of an advisory opinion can constitute proceedings to which any summary contempt of court ought to be applicable. Thus, it concludes that the author’s detention was arbitrary, in violation of article 9, paragraph 1.

[11.43] The circumstances in both of these Sri Lankan cases were exacerbated by the lack of justification and the lack of procedural safeguards. Therefore, it remains uncertain whether a draconian penalty, imposed with the delivery of reasons and after a trial process, would of itself breach article 9(1). In Dean v New Zealand (1512/06), the HRC noted that the imposition of a sentence of preventive detention in the circumstances of that case [11.34] was not so manifestly excessive as to breach the Covenant.41 While the HRC did not cite article 9(1) as being relevant to that issue (rather it cited articles 7, 10(1), and 14), the comment does indicate that an excessive sentence per se can breach the ICCPR. [11.44] In Concluding Observations on the Dominican Republic, the HRC has expressed concern over the lack of alternatives to prison sentences, within its criminal justice system, such as ‘electronic surveillance and release’.42

The Right to be Informed of a Criminal Charge—Article 9(2) [11.45] Article 9(2) provides that every person who is arrested shall be given reasons for his or her arrest. If the arrest is in a criminal context, he or she must be informed promptly of the charges against him or her. General Comment 8 confirms that only part of Article 9(2) applies exclusively in the context of criminal charge, so it presumably can extend to arrests outside that scenario.43 Therefore, one must be reasonably aware of the precise reasons for one’s arrest. It is not, for example, sufficient to be informed that one is being arrested ‘under prompt security measures without any indication of the substance’ of the reasons for the arrest.44 [11.46] In Ismailov v Uzbekistan (1769/08), a violation was found in article 9(2) when a person was arrested but was not informed of the charges against him for two days.45 [11.47]

ILOMBE and SHANDWE v Democratic Republic of the Congo (1177/03)

The two authors were human rights activists were both arrested, and were both told that their arrests were based on state security measures, without further detail. This circumstance breached article 9(2): 41

42 At para 7.3. (2012) CCPR/C/DOM/CO/5, para 21. 44 At para 1. Drescher Caldas v Uruguay (43/79), para 13.2. 45 At para 7.2. See also Ashurov v Tajikistan (1348/05), para 6.4. 43

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¶6.2. With regard to the alleged violation of article 9, paragraph 2, the Committee takes note of the authors’ claim that they were not informed, at the time of arrest, of the reasons for their arrest. It observes that it was not sufficient simply to inform the authors that they were being arrested for breach of State security, without any indication of the substance of the complaint against them. In the absence of any pertinent information from the State party which would contradict the authors’ allegations, the Committee considers that the facts before it reveal a violation of article 9, paragraph 2, of the Covenant.

[11.48]

KELLY v JAMAICA (253/87)

This case concerned numerous breaches of the ICCPR.46 One violation concerned the fact that Kelly was not informed of his charge for 26 days. The Committee made the following comments about the relationship between article 9(2) and article 14(3)(a). ¶5.8. Article 14, paragraph 3(a), requires that any individual under criminal charges shall be informed promptly and in detail of the nature and the charges against him. The requirement of prompt information, however, only applies once the individual has been formally charged with a criminal offence. It does not apply to those remanded in custody pending the result of police investigations; the latter situation is covered by article 9, paragraph 2, of the Covenant. In the present case, the State party has not denied that the author was not apprised in any detail of the reasons for his arrest for the several weeks following his apprehension and that he was not informed about the facts of the crime in connection with which he was detained or about the identity of the victim. The Committee concludes that the requirements of article 9, paragraph 2, were not met.

[11.49]

GRANT v JAMAICA (597/94)

The pertinent facts are evident from the HRC’s finding of a violation of article 9(2): ¶8.1. With regard to the author’s allegations concerning a violation of article 9, the Committee observes that the State party is not absolved from its obligation under article 9, paragraph 2, of the Covenant to inform someone of the reasons of his arrest and of the charges against him, because of the arresting officer’s opinion that the arrested person is aware of them. In the instant case, the author was arrested some weeks after the murder with which he was subsequently charged, and the State party has not contested that he was not informed of the reasons for his arrest until seven days later. In the circumstances, the Committee concludes that there has been a violation of article 9, paragraph 2.

[11.50] Compare the finding in Grant to those in Stephens v Jamaica (373/89) and Griffin v Spain (493/92). In Stephens v Jamaica, the Committee rejected an allegation of a violation of article 9(2) on the basis that the author was fully aware of the reasons for his detention as he had surrendered himself to the police and a detective had cautioned the author whilst he was in custody.47 GRIFFIN v SPAIN (493/92) ¶9.2. With regard to the author’s claim that, as there was no interpreter present at the time of his arrest, he was not informed of the reasons for his arrest and of the charges against 46

See eg [14.127] and [14.162].

47

See also Smirnova v Russia (712/96).

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him, the Committee notes from the information before it that the author was arrested and taken into custody at 11:30 p.m. on 17 April 1991, after the police, in the presence of the author, had searched the camper and discovered the drugs. The police reports further reveal that the police refrained from taking his statement in the absence of an interpreter, and that the following morning the drugs were weighed in the presence of the author. He was then brought before the examining magistrate and, with the use of an interpreter, he was informed of the charges against him. The Committee observes that, although no interpreter was present during the arrest, it is wholly unreasonable to argue that the author was unaware of the reasons for his arrest. In any event, he was promptly informed, in his own language, of the charges held against him. The Committee therefore finds no violation of article 9, paragraph 2, of the Covenant.

[11.51]

HILL and HILL v SPAIN (526/93)

The Committee found in favour of the State Party with regard to an allegation of a violation of article 9(2): ¶12.2. With regard to the authors’ allegations of violations of article 9 of the Covenant, the Committee considers that the authors’ arrest was not illegal or arbitrary. Article 9, paragraph 2, of the Covenant requires that anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. The authors specifically allege that seven and eight hours, respectively, elapsed before they were informed of the reason for their arrest, and complain that they did not understand the charges because of the lack of a competent interpreter. The documents submitted by the State party show that police formalities were suspended from 6 a.m. until 9 a.m., when the interpreter arrived, so that the accused could be duly informed in the presence of legal counsel. Furthermore, from the documents sent by the State it appears that the interpreter was not an ad hoc interpreter but an official interpreter appointed according to rules that should ensure her competence. In these circumstances, the Committee finds that the facts before it do not reveal a violation of article 9, paragraph 2, of the Covenant.

The Hill brothers had contended that eight hours had passed before they were informed of the reason for their arrest. The Committee chose to accept the State’s evidence that this period of time was only three hours, as well as the evidence that the interpreter was sufficiently competent. It is therefore uncertain whether eight hours’ delay would have constituted a breach of article 9(2). The shortest delay which has been found actually to breach article 9(2) is two days in Ismailov v Uzbekistan (1769/08) [11.46]. [11.52]

LEEHONG v JAMAICA (613/95)

¶9.4. The author has claimed a violation of articles 9, paragraph 2, and 14, paragraph 3(a), since he was not informed of the charges against him at the time of his arrest. After a police officer was killed, the author was charged and arrested. Later after an investigation, the original charge was dropped for lack of evidence, but it appears that the author was the suspect of another murder and was kept in detention [for over three months] before being charged . . . for the second crime. In the circumstance of the case and on the basis of the information before it, the Committee finds that there has been no violation of the articles 9, paragraph 2, and 14, paragraph 3, of the Covenant.

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Whilst the Leehong decision seems correct regarding article 14(3)(a) (as he was told of the correct charges upon being formally charged), the article 9(2) decision may pave the way for police abuse of power. Police should be required to inform a detainee of the reason for his/her arrest, and the reason for continued detention after arrest if those reasons should differ.

Rights of Persons Detained on Criminal Charges—Article 9(3) ‘PROMPT’ PRESENTATION BEFORE A JUDICIAL OFFICER

[11.53] People detained on criminal charges must be brought promptly before a judicial officer who rules on whether the detention will continue. GENERAL COMMENT 8 ¶2. Paragraph 3 of article 9 requires that in criminal cases any person arrested or detained has to be brought ‘promptly’ before a judge or other officer authorised by law to exercise judicial power. More precise time-limits are fixed by law in most States parties and, in the view of the Committee, delays must not exceed a few days. . . .

[11.54] One of the keys to the interpretation of article 9(3) is the meaning of the word ‘promptly’. The General Comment is quite vague, specifying a period of ‘a few days’. In Portorreal v Dominican Republic (188/84) the Committee found that there was no breach of article 9(3) when the author was held for 50 hours before being brought before a judge.48 In Van der Houwen v The Netherlands (583/94), 73 hours of detention without being brought before a judge was held not to be a violation of article 9(3).49 However, in the later case of Borisenko v Hungary (852/99), the author’s unexplained detention for three days prior to presentation before a judicial officer constituted a breach of article 9(3). Furthermore, in Freemantle v Jamaica (625/95), the Committee found a violation of article 9(3) when the author was held incommunicado for four days without being brought before a judge and without having access to counsel.50 In Nazarov v Uzbekistan (911/00), a delay of five days breached article 9(3).51 HRC jurisprudence therefore indicates that the limit of ‘promptness’ for the purposes of the article 9(3) guarantee of judicial review lies somewhere around three days. [11.55] However, in some Concluding Observations, the HRC has taken a stricter view. For example, in its 2000 Observations on Gabon, the HRC stated:52

48

49 At para 10.2. At para 4.3. At para 7.4. 51 At par 6.2. See also Jijón v Ecuador (277/88). 52 UN doc CCPR/CO/70/GAB; see also Concluding Observations on the Czech Republic (2001) UN doc CCPR/CO/72/CZE, para 17; Zimbabwe (1998) UN doc CCPR/C/79/Add.89, para 17; Mali (2003) UN doc CCPR/CO/77/MLI, para 19; Lesotho, (1999) UN doc CCPR/C/79/Add.106, para 18; Kuwait (2011) UN doc CCPR/C/KWT/CO/2, para 19. 50

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¶13. . . . The State party should take action to ensure that detention in police custody never lasts longer than 48 hours and that detainees have access to lawyers from the moment of their detention. The State party must ensure full de facto compliance with the provisions of article 9, paragraph 3, of the Covenant. ‘JUDGE OR OTHER OFFICER AUTHORIZED BY LAW’

[11.56]

KULOMIN v HUNGARY (521/92)

The author, a Russian citizen living in Hungary, was arrested for murder. He was detained for over a year before he was brought to trial. The State Party explained that his arrest and detention were regulated by legislation which gave the public prosecutor authority to extend a person’s pre-trial detention. In this case the author’s pre-trial detention was ordered and subsequently renewed on several occasions by the public prosecutor. The State claimed that there was no violation of article 9(3) as the accused had been brought promptly before an ‘other officer authorized by law’. In this case the State argued that the public prosecutor fell within the meaning of this term: ¶10.4. As regards the compatibility of the procedure with the requirements of article 9, paragraph 3, the State party interprets the term ‘other officers authorised by law’ as meaning officers with the same independence towards the executive as the Courts. In this connection, the State party notes that the law in force in Hungary in 1988 provided that the Chief Public Prosecutor was elected by and responsible to Parliament. All other public prosecutors were subordinate to the Chief Public Prosecutor. The State party concludes that the prosecutor’s organization at the time had no link whatsoever with the executive and was independent from it. The State party therefore argues that the prosecutors who decided on the continued detention of Mr Kulomin can be regarded as other officers authorized by law to exercise judicial power within the meaning of article 9, paragraph 3, and that no violation of the Covenant has occurred.

The Committee rejected the State Party’s arguments in relation to article 9(3), making the following comments: ¶11.3. The Committee notes that, after his arrest on 20 August 1988, the author’s pre-trial detention was ordered and subsequently renewed on several occasions by the public prosecutor, until the author was brought before a judge on 29 May 1989. The Committee considers that it is inherent to the proper exercise of judicial power, that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with. In the circumstances of the instant case, the Committee is not satisfied that the public prosecutor could be regarded as having the institutional objectivity and impartiality necessary to be considered an ‘officer authorised to exercise judicial power’ within the meaning of article 9(3).

[11.57] The principle in Kulomin has been followed in many cases and is now entrenched.53 A public prosecutor is not an adequate authorizing institution for the purposes of article 9(3). 53 See eg Ismailov v Uzbekistan (1769/08), para 7.3; Reshetnikov v Russian Federation (1278/04), para 8.2; and Torobekov v Kyrgysztan (1547/07), para 6.2.

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LENGTH OF PRE-TRIAL DETENTION

[11.58] In relation to pre-trial detention, article 9(3) states that persons shall be entitled to trial within a reasonable time or release. GENERAL COMMENT 8 ¶3. Another matter is the total length of detention pending trial. In certain categories of criminal cases in some countries this matter has caused some concern within the Committee, and members have questioned whether their practices have been in conformity with the entitlement ‘to trial within a reasonable time or to release’ under paragraph 3. Pre-trial detention should be an exception and as short as possible. The Committee would welcome information concerning mechanisms existing and measures taken with a view to reducing the duration of such detention.

[11.59] Article 9(3) overlaps considerably with article 14(3)(c).54 Whilst the latter provision guarantees that one’s criminal trial will be held within a reasonable time after one’s charge, the former guarantees that one will not be held in detention for an unreasonable time prior to one’s trial. Therefore, article 9(3) regulates the length of pre-trial detention, whereas article 14(3) regulates the total length of time that passes before one’s trial. Most breaches of article 14(3)(c) have concerned people who have been held in detention for the entire time before trial, so they have a fortiori also concerned breaches of article 9(3). [11.60]

KONÉ v SENEGAL (386/89)

¶8.6. . . . What constitutes ‘reasonable time’ within the meaning of article 9, paragraph 3, must be assessed on a case-by-case basis. ¶8.7. A delay of four years and four months during which the author was kept in custody . . . cannot be deemed compatible with article 9, paragraph 3, in the absence of special circumstances justifying such delay, such as that there were, or had been, impediments to the investigations attributable to the accused or to his representative. No such circumstances are discernible in the present case. Accordingly, the author’s detention was incompatible with article 9, paragraph 3. . . .

Koné confirms that there is no set period of permissible pre-trial detention under article 9(3). However, it must be doubted whether pre-trial detention of four years could ever be justified. [11.61] Longer periods of pre-trial detention may be permitted when the detainee is charged with a very serious offence. There is a higher risk that such people will escape or pose a danger to society if released pending trial. [11.62]

TEESDALE v TRINIDAD and TOBAGO (677/96)

¶9.3. With regard to the delays in bringing the author to trial, the Committee notes that the author was detained on 28 May 1988 and formally charged with murder on 2 June 1988. His trial began on 6 October 1989 and he was sentenced to death on 2 November 1989. 54

See also General Comment 32, para 61.

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Under article 9, paragraph 3, of the Covenant anyone arrested or detained on a criminal charge shall be entitled to trial within a reasonable time. It appears from the transcript of the trial before the San Fernando Assize Court that all evidence for the case of the prosecution was gathered by 1 June 1988 and no further investigations were carried out. The Committee is of the view that in the context of article 9, paragraph 3, in the specific circumstances of the present case and in the absence of any explanation for the delay by the State party, the length of time that the author was in pre-trial detention is unreasonable and, therefore, constitutes a violation of this provision.

Thus, a period of 16 months’ pre-trial detention without explanation breaches article 9(3).55 In contrast, a period of 14 months’ pre-trial detention for capital murder did not breach article 9(3) in Thomas v Jamaica (614/95).56 [11.63]

FILLASTRE and BIZOUARN v BOLIVIA (336/88)

This case involved the treatment of two French private detectives who were arrested and detained in Bolivia for a number of offences. The communication was brought by one of the victims’ wives. It was submitted that the two men were held in custody for ten days without being informed of the charges against them and that there was a delay of over three years before the adjudication of the case at first instance. The State responded: ¶4.6. As to the author’s complaint about undue delays in the judicial proceedings, the State party points out that criminal investigations under Bolivian law are carried out in written form, which implies that administrative and other delays may occur. Furthermore, the absence of an adequate budget for a proper administration of justice means that a number of criminal cases and certain specific procedural phases of criminal proceedings have experienced delays.

The Committee found that there was a violation of both paragraphs 2 and 3 of article 9. It made the following comments regarding the State’s claims about budgetary constraints: ¶6.4. . . . The pertinent factor in this case is that both Mr Fillastre and Mr Bizouarn allegedly were held in custody for 10 days before being brought before any judicial instance and without being informed of the charges against them. Accordingly, while not unsympathetic to the State party’s claim that budgetary constraints may cause impediments to the proper administration of justice in Bolivia, the Committee concludes that the right of Mr Fillastre and Mr Bizouarn under article 9, paragraphs 2 and 3, have not been observed. ¶6.5. Under article 9, paragraph 3, anyone arrested or detained on a criminal charge ‘shall be entitled to trial within a reasonable time . . . ’. What constitutes ‘reasonable time’ is a matter of assessment for each particular case. The lack of adequate budgetary appropriations for the administration of criminal justice alluded to by the State party does not justify unreasonable delays in the adjudication of criminal cases. Nor does the fact that investigations into a criminal case are, in their essence, carried out by way of written proceedings, justify such delays. In the present case, the Committee has not been informed that a decision See also Lewis v Jamaica (708/96), and Sextus v Trinidad and Tobago (818/98) [14.135]. At para 9.6. A 12-month delay on a capital murder charge in McTaggart v Jamaica (749/97) did not breach art 9(3), para 8.2. 55 56

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at first instance had been reached some four years after the victims’ arrest. Considerations of evidence-gathering do not justify such prolonged detention. The Committee concludes that there has been, in this respect, a violation of article 9, paragraph 3. RIGHT TO RELEASE PENDING TRIAL

[11.64] Article 9(3) prescribes that ‘the general rule’ for people awaiting trial is that they should not be detained in custody. SMANTSER v BELARUS (1178/03) The facts are evident from the finding of violation of Article 9(3), with regard to the State’s failure to grant bail to a person charged with financial crimes. ¶10.3. The Committee notes that 13 months passed between the author’s arrest on 3 December 2002 and his first conviction on 12 January 2004. Altogether, the author was kept in custody for a total of 22 months before his conviction on 1 October 2004 and that his and counsel’s requests for release on bail were repeatedly denied by the Prosecutor’s Office and by the courts. In this regard, the Committee reaffirms its jurisprudence that pre-trial detention should remain the exception and that bail should be granted, except in situations where the likelihood exists that the accused would abscond or tamper with evidence, influence witnesses or flee from the jurisdiction of the State party. The State party has argued that the author was charged with a particularly serious crime, and that there was a concern that he might obstruct investigations and abscond if released on bail. However, it has provided no information on what particular elements this concern was based and why it could not be addressed by fixing an appropriate amount of bail and other conditions of release. The mere assumption by the State party that the author would interfere with the investigations or abscond if released on bail does not justify an exception to the rule in article 9, paragraph 3, of the Covenant. In these circumstances, the Committee finds that the author’s right under article 9, paragraph 3, was violated.

[11.65] In Concluding Observations on Panama, the HRC stated:57 ¶12. . . . The State party should take prompt measures to reduce the number of persons in pretrial detention and the time of their detention in that situation, such as greater recourse to preventive measures and bail and a greater use of electronic bracelets.

Therefore, article 9(3) prescribes that bail be ordinarily available to detainees. Presumably, bail should not be set at an excessively high figure which might preclude a detainee from being able to raise it.58 [11.66] Indeed, the HRC has found on a number of occasions that the failure to grant bail to pre-trial detainees is a breach of the more general right in article 9(1) [11.18]. [11.67]

WBE v THE NETHERLANDS (432/90)

The author claimed his pre-trial detention of three months, on a charge of drug smuggling, breached article 9(3). The Committee found the allegation 57 58

(2008) UN doc CCPR/C/PAN/CO/3. Dinstein, ‘Right to Life, Physical Integrity, and Liberty’, 134.

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inadmissible, and made the following comments regarding the permissibility of pre-trial detention: ¶6.3. With regard to the author’s allegation that his pre-trial detention was in violation of article 9 of the Covenant, the Committee observes that article 9, paragraph 3, allows pre-trial detention as an exception; pre-trial detention may be necessary, for example, to ensure the presence of the accused at the trial, avert interference with witnesses and other evidence, or the commission of other offences. On the basis of the information before the Committee, it appears that the author’s detention was based on considerations that there was a serious risk that, if released, he might interfere with the evidence against him. ¶6.4. The Committee considers that, since pre-trial detention to prevent interference with evidence is, as such, compatible with article 9, paragraph 3, . . . and since the author has not substantiated, for purposes of admissibility, his claim that there was no lawful reason to extend his detention, this part of the communication is inadmissible under articles 2 and 3 of the Optional Protocol.

[11.68]

HILL and HILL v SPAIN (526/93)

The authors, who were British citizens, were arrested in Spain on suspicion of having firebombed a car. One of the claims made by the authors was that the State Party had violated article 9(3) as they were not released on bail after their arrest. The State Party justified the authors’ extended pre-trial detention as follows: ¶9.7. The State party submits that the duration of 16 months of pretrial detention was not unusual. It was justified in view of the complexities of the case; bail was not granted because of the danger that the authors would leave Spanish territory, which they did as soon as release was granted.

In its merits decision against the State Party, the Committee made the following comments: ¶12.3. As for article 9, paragraph 3, of the Covenant, which stipulates that it shall not be the general rule that persons awaiting trial shall be detained in custody, the authors complain that they were not granted bail and that, because they could not return to the United Kingdom, their construction firm was declared bankrupt. . . . The mere fact that the accused is a foreigner does not of itself imply that he may be held in detention pending trial. The State party has indeed argued that there was a well-founded concern that the authors would leave Spanish territory if released on bail. However, it has provided no information on what this concern was based and why it could not be addressed by setting an appropriate sum of bail and other conditions of release. The mere conjecture of a State party that a foreigner might leave its jurisdiction if released on bail does not justify an exception to the rule laid down in article 9, paragraph 3, of the Covenant. In these circumstances, the Committee finds that this right in respect of the authors has been violated.

[11.69]

BASSO v URUGUAY (1887/09)

The author was extradited from the United States to Uruguay for economic crimes. He claimed that the denial by Uruguay of bail breached article 9(3). The HRC disagreed:

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¶10.2. The Committee takes note of the author’s claim regarding the judicial authorities’ refusal to grant him provisional release. It observes that the author was taken into custody in the United States on 19 May 2006 and extradited to the State party. Since his arrival in Uruguay on 10 September 2008, he has remained in detention, and his requests to be released from detention while his case is prosecuted have been denied. . . . The Committee takes note of the State party’s argument that the accused was a fugitive from Uruguayan justice and that there were therefore substantial grounds for thinking that he might behave in a similar manner in the future. The Committee underscores the nature of the charges against the author, that he left the country on 25 June 2002, that an international warrant for his arrest was issued on 8 August 2002 and that his return to the State party was not voluntary but the result of an extradition process. Consequently, the Committee is of the view that refusal of the State party’s authorities to grant him provisional release is not a violation of article 9, paragraph 3, of the Covenant.

Right of Habeas Corpus—Article 9(4) [11.70] Article 9(4) entitles any person who has been arrested or detained for whatever reason to challenge the lawfulness of his/her detention in a court without delay. This right stems from the common law legal principle of habeas corpus, and exists regardless of whether deprivation of liberty is actually unlawful.59 [11.71] When there is a breach of the article 9(3) requirement of prompt judicial review of one’s detention [11.53]–[11.55], that will also entail a breach of paragraph 4. However, simultaneous violations of article 9(3) and (4) have not always been found. This may be due to oversights on the part of the Committee. [11.72]

STEPHENS v JAMAICA (373/89)

This decision confirms that the right of access to court in article 9(4), unlike that in article 9(3), does not have to be performed ex officio by the State. Instead it occurs at the instigation of the author or his/her representatives. The State cannot be held responsible for the author’s failure to seek review of the lawfulness of his/ her detention. ¶9.7. With respect to the alleged violation of article 9(4), it should be noted that the author did not himself apply for habeas corpus. He could have, after being informed on 2 March 1983 that he was suspected of having murdered Mr Lawrence, requested a prompt decision on the lawfulness of his detention. There is no evidence that he or his legal representative did do so. It cannot, therefore, be concluded that Mr Stephens was denied the opportunity to have the lawfulness of his detention reviewed in court without delay. REVIEW WITHOUT DELAY

[11.73] In Hammel v Madagascar (155/83), incommunicado detention for three days, during which time it was impossible for the author to access a court to 59

Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 235.

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60

challenge his detention, was held to breach article 9(4). On the other hand, in Portorreal v Dominican Republic (188/84), the Committee found, perhaps surprisingly, no breach of article 9(4) when the author was held for 50 hours without having the opportunity to challenge his detention. [11.74] The following cases concern the permissible delay in a court issuing a decision on the lawfulness of one’s detention, as opposed to the delay in actually accessing that court. [11.75]

TORRES v FINLAND (291/88)

Torres was earmarked for deportation from Finland. He had challenged the legality of his detention under Finnish migration and extradition laws. His challenge failed. He argued that his detention breached article 9(4), owing to the delay in the publication of the court’s decision regarding the legality of his detention:61 ¶7.3. With respect to the second question, the Committee emphasises that, as a matter of principle, the adjudication of a case by any court of law should take place as expeditiously as possible. This does not mean, however, that precise deadlines for the handing down of judgements may be set which, if not observed, would necessarily justify the conclusion that a decision was not reached ‘without delay’. Rather, the question of whether a decision was reached without delay must be assessed on a case by case basis. The Committee notes that almost three months passed between the filing of the author’s appeal, under the Aliens Act, against the decision of the Ministry of the Interior and the decision of the Supreme Administrative Court. This period is in principle too extended, but as the Committee does not know the reasons for the judgment being issued only on 4 March 1988, it makes no finding under article 9, paragraph 4, of the Covenant. ¶7.4. With respect to the third question, the Committee notes that the Helsinki City Court reviewed the author’s detention under the Extradition Act at two-week intervals. The Committee finds that such reviews satisfy the requirements of article 9, paragraph 4, of the Covenant.

This seems to be a very timid judgment in respect of the delay in the court’s judgment regarding the legality of Torres’ detention. It seems incumbent upon the State Party to inform the Committee of the reasons for such a delay. It should not benefit from its failure to do so. Finland apparently did benefit here, as no violation was found in respect of the delayed judgment, even though ‘in principle, the period [was] too extended’. [11.76]

AHANI v CANADA (1051/02)

As noted above [11.30], this case concerned the detention and deportation of a person on national security grounds. Part of the complaint related to the author’s alleged inability to challenge his detention without delay. With regard to one period of detention, a challenge in Canada’s federal court was not finalized for 60 See also Marques de Morais v Angola (1128/02), where ten days’ incommunicado detention breached art 9(4). 61 See also [11.88].

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four-and-a-half years, even though much of that delay was due to the author contesting the constitutionality of the adverse security assessment. A second challenge to his detention arose after his deportation was ordered. Canadian law provided that detention could be challenged if 120 days had passed since the deportation order and it had still not been executed. The HRC found a breach of article 9(4) in respect of the first challenge but not the second for the following reasons: ¶10.2. . . . [G]iven that an individual detained under a security certificate has neither been convicted of any crime nor sentenced to a term of imprisonment, an individual must have appropriate access, in terms of article 9, paragraph 4, to judicial review of the detention, that is to say, review of the substantive justification of detention, as well as sufficiently frequent review. ¶10.3. As to the alleged violation of article 9, paragraph 4, the Committee is prepared to accept that a ‘reasonableness’ hearing in Federal Court promptly after the commencement of mandatory detention on the basis of a Ministers’security certificate is, in principle, sufficient judicial review of the justification for detention to satisfy the requirements of article 9, paragraph 4, of the Covenant. The Committee observes, however, that when judicial proceedings that include the determination of the lawfulness of detention become prolonged the issue arises whether the judicial decision is made ‘without delay’ as required by the provision, unless the State party sees to it that interim judicial authorization is sought separately for the detention. In the author’s case, no such separate authorization existed although his mandatory detention until the resolution of the ‘reasonableness’ hearing lasted four years and ten months. Although a substantial part of that delay can be attributed to the author who chose to contest the constitutionality of the security certification procedure instead of proceeding directly to the ‘reasonableness’ hearing before the Federal Court, the latter procedure included hearings and lasted nine and half months after the final resolution of the constitutional issue on 3 July 1997. This delay alone is in the Committee’s view too long in respect of the Covenant requirement of judicial determination of the lawfulness of detention without delay. Consequently, there has been a violation of the author’s rights under article 9, paragraph 4, of the Covenant. ¶10.4. As to the author’s later detention, after the issuance of a deportation order in August 1998, for a period of 120 days before becoming eligible to apply for release, the Committee is of the view that such a period of detention in the author’s case was sufficiently proximate to a judicial decision of the Federal Court62 to be considered authorized by a court and therefore not in violation of article 9, paragraph 4.

[11.77]

A v NEW ZEALAND (754/97)

The facts of this case are outlined above [11.22]. A further complaint of the author was that he was not afforded frequent opportunities to challenge his detention in a maximum security wing of a psychiatric hospital. The HRC majority found no violation of article 9(4) on the facts: ¶7.3. The Committee further notes that the author’s continued detention was regularly reviewed by the Courts and that the facts of the communication thus do not disclose a 62 The decision referred to here are the ‘reasonable’ proceedings referred to in para 10.3 above, which concluded in April 1998.

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violation of article 9, paragraph 4, of the Covenant. In this context, the Committee has noted the author’s argument that the decision by Unwin J not to dismiss him from compulsory status was arbitrary. The Committee observes, however, that this decision and the author’s continued detention were reviewed by other courts, which confirmed Unwin J’s findings and the necessity of continuation of compulsory status for the author. . . . On the basis of the material before it, the Committee finds that the Courts’ reviews of the author’s compulsory status under the Mental Health Act did not suffer from such defects.

[11.78]

JS v NEW ZEALAND (1752/08)

One complaint in this case, concerning the compulsory detention of a person in a mental health facility, concerned the length of habeas corpus proceedings. The HRC found those complaints inadmissible: ¶6.3. The author holds that the length of the habeas corpus proceedings at the Court of Appeal and Supreme Court, of 21 days and 2 months and 1 day, respectively, is excessive and breached his right to a decision without delay on the lawfulness of his detention under article 9, paragraph 4. He argues that the Supreme Court did not give due priority to such urgent proceedings and was not diligent in guaranteeing its functioning during vacations period. The State party alleges that during the ten weeks the author was under compulsory care, his continuing detention was subjected to independent scrutiny by the courts, which considered this measure on seven occasions. The author´s applications for review were heard and decided on the day they were made. His application for habeas corpus at first instance was heard within six days and decided two days later, whereas the appeal was decided within three weeks. ¶6.4. In the circumstances of the case and in view of the length of time within which the author’s applications for judicial review of his detention were dealt with by the District Court, the High Court, the Court of Appeal and the Supreme Court, the Committee considers that the author has failed to substantiate, for purposes of admissibility, his claim under article 9, paragraph 4, of the Covenant. Accordingly, the Committee declares this claim inadmissible under article 2 of the Optional Protocol.

[11.79]

RAMEKA v NEW ZEALAND (1090/02)

The facts of this case are outlined above [11.32]. As noted, one author, Rameka, was serving a preventive detention sentence alongside a 14-year rape sentence, while another author, Harris, was serving a preventive detention instead of a fixed sentence of a minimum of seven-and-a-half years. Preventive detention sentences were not reviewed for ten years, when persons subject to them became eligible for parole. A breach of article 9(4) was found with regard to Harris: ¶7.2. The Committee observes at the outset that Mr. Harris would have been subjected, according to the Court of Appeal, to a finite sentence of ‘not less than’ seven and a half years with respect to his offences. Accordingly, Mr. Harris will serve two and a half years of detention, for preventive purposes, before the non-parole period arising under his sentence of preventive detention expires. Given that the State party has demonstrated no case where the Parole Board has acted under its exceptional powers to review proprio motu a prisoner’s continued detention prior to the expiry of the non-parole period, the Committee finds that, while Mr. Harris’ detention for this period of two and a half years is based on the

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State party’s law and is not arbitrary, his inability for that period to challenge the existence, at that time, of substantive justification of his continued detention for preventive reasons is in violation of his right under article 9, paragraph 4, of the Covenant to approach a ‘court’ for a determination of the ‘lawfulness’ of his detention over this period.

Presumably, no such violation was found with regard to Rameka as he was concurrently serving a sentence which was more than ten years anyway.63 [11.80] Mr Kälin dissented on this point, and found violations of article 9(4) with regard to the entire period of ten years for both Rameka and Harris: The Committee concludes, in paragraph 7.2 of its Views, that Mr. Harris will serve two and a half years of detention, for preventive purposes, before he can approach the Parole Board after a total of ten years of detention and that the denial of access to a ‘court’ during this period amounts to a violation of his right under article 9, paragraph 4, of the Covenant. This finding is based on the assumption that Mr. Harris would have been subjected, according to the Court of Appeal, to a finite sentence of ‘not less’ than seven and a half years with respect of his offences. While the Court of Appeal did, indeed, observe that the case would warrant a finite sentence of ‘not less’ than seven and a half years, it did not impose such a finite sentence, but rather substituted a sentence of preventive detention from the outset. Finite sentences are to be proportionate to the seriousness of the crime and the degree of guilt, and they serve multiple purposes, including punishment, rehabilitation and prevention. In contrast, as is clearly spelled out in section 75 of the State party’s Criminal Justice Act 1985, preventive detention does not contain any punitive element, but serves the single purpose of protecting the public against an individual in regard to whom the court is satisfied ‘that there is a substantial risk that [he] will commit a specified offence upon release.’ Although preventive detention is always triggered by the commission of a serious crime, it is not imposed for what the person concerned did in the past, but rather for what he is, i.e. for being a dangerous person who might commit crimes in the future. While preventive detention for the purpose of protecting the public against dangerous criminals is not prohibited as such under the Covenant and its imposition sometimes cannot be avoided, it must be subject to the strictest procedural safeguards, as provided for in article 9 of the Covenant, including the possibility for periodic review, by a court, of the continuing lawfulness of such detention. Such reviews are necessary as any human person has the potential to change and improve, i.e. to become less dangerous over time (e.g. as a consequence of inner growth or of a successful therapy, or as a result of an ailment reducing his physical abilities to commit a specific category of crimes). In the present circumstances, Mr. Harris did not receive any finite sentence aimed at sanctioning past conduct, but was detained for the sole reason of protection of the public. Therefore, I conclude that his right to ‘take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful’ (article 9, paragraph 4) was not only violated during the last two and a half years of the first ten years of preventive detention, but also during that whole initial period. For the same reasons, I would find that the detention over the same initial period of 10 years prior to review by the Parole Board would also be in violation of article 9, paragraph 4, with respect to Mr. Rameka.

63 However, with regard to the 14-year sentence, Rameka would have been eligible for parole once he had served nine years and four months of his sentence. So it is arguable that a violation should have been found in respect of eight months of his sentence.

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[11.81] In contrast, Messrs Shearer and Wieruszewski (with Mr Ando essentially agreeing) found no violation of article 9(4): It is not appropriate, in our opinion, to separate indefinite preventive detention into punitive and preventive segments. Unlike finite sentences, which are based on the traditional purposes of imprisonment—to punish and to reform the offender, to deter the offender and others from future offending, and to vindicate the victim and the community—sentences of preventive detention are designed solely to protect the community against future dangerous conduct by an offender in respect of whom past finite sentences have manifestly failed to achieve their aims. Under the State party’s law applicable to the authors a sentence of preventive detention runs for ten years before the sentence may be reviewed by the Parole Board (whose decisions are subject to judicial review). As a result of a recent amendment to that law, the non-review period has been shortened to five years. Even the longer period cannot be regarded as arbitrary or unreasonable in the light of the conditions governing the imposition of such a sentence. We consider that the State party’s law in respect of preventive detention cannot be regarded as contrary to the Covenant. In particular, article 9, paragraph 4, of the Covenant cannot be construed so as to give a right to judicial review of a sentence on an unlimited number of occasions.

[11.82] The majority came to a similar view as the Rameka majority on article 9(4) in Dean v New Zealand (1512/06). Only Mr Thelin dissented; he adopted the same position as the Shearer minority in Rameka. ACCESS TO LAWYERS

[11.83]

BERRY v JAMAICA (330/88)

In this case, the Committee clearly links access to legal representation with enjoyment of the right in article 9(4). In practice, it is virtually impossible for people to challenge their detention without legal representation. ¶11.1. In respect of the allegations pertaining to article 9, paragraphs 3 and 4, the State party has not contested that the author was detained for two and a half months before he was brought before a judge or judicial officer authorized to decide on the lawfulness of his detention. Instead, the State party has confined itself to the contention that, during his detention, the author could have applied to the courts for a writ of habeas corpus. The Committee notes, however, the author’s claim, which remains unchallenged, that throughout this period he had no access to legal representation. The Committee considers that a delay of over two months violates the requirement, in article 9, paragraph 3, that anyone arrested on a criminal charge shall be brought ‘promptly’ before a judge or other officer authorized by law to exercise judicial power. In the circumstances, the Committee concludes that the author’s right under article 9, paragraph 4, was also violated, since he was not, in due time, afforded the opportunity to obtain, on his own initiative, a decision by a court on the lawfulness of his detention.

Similarly, in Hammel v Madagascar (155/83) [11.73], detention incommunicado rendered a habeas corpus action impossible. Five days’ detention incommunicado was identified as a breach of article 9 in Concluding Observations on Spain.64 64

(1996) UN doc CCPR/C/79/Add.61, para 12.

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[11.84] Those detained pursuant to a criminal charge are entitled to rights of legal representation and, in certain circumstances, legal aid, in article 14(3)(d) [14.152]. Those rights do not crystallize until after charge. In Concluding Observations on Ireland, the HRC made clear that pre-charge detainees are also permitted access to legal aid if they are unable to afford their own legal counsel.65 They noted: ¶18. The State party should ensure that all aspects of detention, including the period of detention and availability of legal aid, are administered in full compliance with article 9 of the Covenant.

Such rights may arise from article 9(4), though it is possible that article 9(1) generally guarantees legal access in order to guard against arbitrary detention. [11.85]

A v AUSTRALIA (560/93)

The author, who had arrived without a visa seeking asylum, was held in detention pending determination of his application for asylum [11.24]. The author’s initial detention was served in a detention centre in Sydney in New South Wales. He was then transferred several thousand kilometres away to Darwin in the Northern Territory. Whilst in the Northern Territory he was moved between two refugee camps. Eventually he was moved to a detention centre in Port Hedland in Western Australia. Initially the author was receiving legal advice from lawyers at the New South Wales Legal Aid Commission, but this contact was cut off as a result of the move to the Northern Territory. He then received legal advice from the Northern Territory Legal Aid Commission, but he lost contact with his legal representatives in that office when he was moved to Port Hedland. Counsel argued that the author’s constant removal to different detention centres around the country effectively denied him access to his lawyers, which entailed a breach of article 9(4): ¶5.7. Counsel insists that an entitlement to take proceedings before a court under article 9, paragraph 4, necessarily requires that an individual have access to legal advice. Wherever a person is under detention, access to the courts can generally only be achieved through assistance of counsel. In this context, counsel disputes that his client had adequate access to legal advice . . . ¶5.8. Author’s counsel adds that on two occasions his client was forcibly removed from a State jurisdiction and therefore from access to his lawyers. On neither occasion was adequate notice of his removal given to his lawyers. It is submitted that these events constitute a denial of the author’s access to his legal advisers.

On this issue, the Committee found in favour of the State Party: ¶9.6. . . . That A was moved repeatedly between detention centres and was obliged to change his legal representatives cannot detract from the fact that he retained access to legal advisers; that this access was inconvenient, notably because of the remote location of Port Hedland, does not, in the Committee’s opinion, raise an issue under article 9, paragraph 4. 65

UN doc A/55/40, paras 422–51, paras 17–18.

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The Committee evidently did not find that A’s access to lawyers was so badly jeopardized as to deny him an effective right of access to a court for the purposes of challenging his detention. In contrast, note that in Concluding Observations on the United Kingdom, the HRC has expressed concern ‘that the practice of dispersing asylum-seekers may have adverse effects on their ability to obtain legal advice and upon the quality of that advice’.66 [11.86] In Concluding Observations on Australia, the HRC has stated:67 ¶526. . . . The Committee is concerned at the State party’s policy, in this context of mandatory detention [of unauthorized arrivals], of not informing the detainees of their right to seek legal advice and of not allowing access of non-governmental human rights organizations to the detainees in order to inform them of this right. ¶527. . . . The Committee recommends that the State party inform all detainees of their legal rights, including their right to seek legal counsel.

Immigration detainees are not strictly denied access to legal advice in Australia, but are not informed of this right. According to the HRC, this practice may not be compatible with the ICCPR. Immigration detainees will normally have little to no knowledge of the Australian legal system, and any ‘rights’ they have thereunder. They may not understand English. They may have come from States where access to lawyers is systematically denied, and thus may not assume that such access is permitted in Australia. For all of these reasons, the HRC is correct in insisting that such detainees should be informed of their legal rights, rather than be left to perhaps languish in ignorance. ACCESS TO DOCUMENTS

[11.87]

FIJALKOWSKA v POLAND (1061/02)

The author was committed for psychiatric treatment against her will by court order after a hearing in which she represented herself [11.21]. Her desire to challenge that order was frustrated by the failure of authorities to promptly provide her with a copy of the committal order, which breached article 9(4): ¶8.4. The Committee . . . notes that although a committal order may be appealed to a court, thereby allowing the individual to challenge the order, in this case, the author, who had not even been served with a copy of the order, nor been assisted or represented by anyone during the hearing who could have informed her of such a possibility, had to wait until after her release before becoming aware of the possibility of, and actually pursuing, such an appeal. Her appeal was ultimately dismissed as having been filed outside the statutory deadline. In the Committee’s view, the author’s right to challenge her detention was rendered ineffective by the State party’s failure to serve the committal order on her prior to the deadline to lodge an appeal. Therefore, in the circumstances of the case, the Committee, finds a violation of article 9, paragraph 4, of the Covenant.

66 67

(2001) UN doc CCPR/CO/73/UK, para 16. (2000) UN doc A/55/40, paras 526–7.

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PROCEEDINGS MUST BE BEFORE A ‘COURT’

[11.88]

TORRES v FINLAND (291/88)

In this case, the author, an alien earmarked for extradition, was held in detention for seven days without being given an opportunity to have recourse to a court in order for it to decide upon the legality of his detention. Under the relevant legislation, Torres was entitled only to review by the relevant Ministry. ¶7.2. . . . [T]he Committee has taken note of the State party’s contention that the author could have appealed the detention orders of 7 October, 3 December 1987 and 5 January 1988 pursuant to section 32 of the Aliens Act to the Ministry of the Interior. In the Committee’s opinion, this possibility, while providing for some measure of protection and review of the legality of detention, does not satisfy the requirements of article 9, paragraph 4, which envisages that the legality of detention will be determined by a court so as to ensure a higher degree of objectivity and independence in such control. The Committee further notes that while the author was detained under orders of the police, he could not have the lawfulness of his detention reviewed by a court. Review before a court of law was possible only when, after seven days, the detention was confirmed by order of the Minister. As no challenge could have been made until the second week of detention, the author’s detention from 8 to 15 October 1987, from 3 to 10 December 1987 and from 5 to 10 January 1988 violated the requirement of article 9, paragraph 4, of the Covenant that a detained person be able ‘to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful’ [emphasis added].

[11.89]

VUOLANNE v FINLAND (265/87)

In this case the author was given military disciplinary punishment of ten days’ close arrest (confinement in the guardhouse without service duties) for having left his garrison without permission. The author was locked in a cell alone and was prohibited from communicating with other detainees. He requested that his detention be reviewed by a higher military officer. However, the decision to detain him was upheld without a hearing. The author argued that there was a breach of article 9(4) as he was detained without being given recourse to a court of law. The State Party had tried to distinguish military disciplinary systems from the civilian systems normally encountered for the purposes of article 9(4). The Committee made the following findings in favour of the author: ¶9.3. The Committee has noted the contention of the State party that the case of Mr Vuolanne does not fall within the ambit of article 9, paragraph 4, of the Covenant. The Committee considers that this question must be answered by reference to the express terms of the Covenant as well as its purpose. It observes that as a general proposition, the Covenant does not contain any provision exempting from its application certain categories of persons. According to article 2, paragraph 1, ‘each State party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. The all-encompassing character of the terms of this

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article leaves no room for distinguishing between different categories of persons, such as civilians and members of the military, to the extent of holding the Covenant to be applicable in one case but not in the other. Furthermore, the travaux préparatoires as well as the Committee’s general comments indicate that the purpose of the Covenant was to proclaim and define certain human rights for all and to guarantee their enjoyment. It is, therefore, clear that the Covenant is not, and should not be conceived of in terms of whose rights shall be protected but in terms of what rights shall be guaranteed and to what extent. As a consequence the application of article 9, paragraph 4, cannot be excluded in the present case. ¶9.4. The Committee acknowledges that it is normal for individuals performing military service to be subjected to restrictions in their freedom of movement. It is self-evident that this does not fall within the purview of article 9, paragraph 4. Furthermore, the Committee agrees that a disciplinary penalty or measure which would be deemed a deprivation of liberty by detention, were it to be applied to a civilian, may not be termed such when imposed upon a serviceman. Nevertheless, such penalty or measure may fall within the scope of application of article 9, paragraph 4, if it takes the form of restrictions that are imposed over and above the exigencies of normal military service and deviate from the normal conditions of life within the armed forces of the State party concerned. In order to establish whether this is so, account should be taken of a whole range of factors such as the nature, duration, effects and manner of the execution of the penalty or measure in question. ¶9.5. In the implementation of the disciplinary measure imposed on him, Mr Vuolanne was excluded from performing his normal duties and had to spend day and night for a period of 10 days in a cell measuring 2 × 3 metres. He was allowed out of his cell solely for purposes of eating, going to the toilet and taking air for half an hour every day. He was prohibited from talking to other detainees and from making any noise in his cell. His correspondence and personal notes were interfered with. He served a sentence in the same way as a prisoner would. The sentence imposed on the author is of a significant length, approaching that of the shortest prison sentence that may be imposed under Finnish criminal law. In the light of the circumstances, the Committee is of the view that this sort of solitary confinement in a cell for 10 days and nights is in itself outside the usual service and exceeds the normal restrictions that military life entails. The specific disciplinary punishment led to a degree of social isolation normally associated with arrest and detention within the meaning of article 9, paragraph 4. It must, therefore, be considered a deprivation of liberty by detention in the sense of article 9, paragraph 4. In this connection, the Committee recalls its General Comment No. 8 (16) according to which most of the provisions of article 9 apply to all deprivations of liberty, whether in criminal cases or in other cases of detention as, for example, for mental illness, vagrancy, drug addiction, educational purposes and immigration control. The Committee cannot accept the State party’s contention that because military disciplinary detention is firmly regulated by law, it does not necessitate the legal and procedural safeguards stipulated in article 9, paragraph 4. ¶9.6. The Committee further notes that whenever a decision depriving a person of his liberty is taken by an administrative body or authority, there is no doubt that article 9, paragraph 4, obliges the State party concerned to make available to the person detained the right of recourse to a court of law. In this particular case it matters not whether the court would be civilian or military. The Committee does not accept the contention of the State party that the request for review before a superior military officer according to the Law on Military Disciplinary Procedure currently in effect in Finland is comparable to judicial scrutiny of an appeal and that the officials ordering detention act in a judicial or

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quasi-judicial manner. The procedure followed in the case of Mr Vuolanne did not have a judicial character, and the supervisory military officer who upheld the decision of 17 July 1987 against Mr Vuolanne cannot be deemed to be a ‘court’ within the meaning of article 9, paragraph 4; therefore, the obligations laid down therein have not been complied with by the authorities of the State party.

Vuolanne confirms that military detentions must comply with the procedural safeguards stipulated in article 9(4). The Committee was not prepared to accept that a review by a superior officer of the decision to detain was comparable to the judicial scrutiny required by article 9(4). Such an officer does not have the requisite judicial or quasi-judicial role or status. This decision has considerable ramifications for States Parties which strictly separate the administration of justice for civilians and members of the military. [11.90]

RAMEKA v NEW ZEALAND (1090/02)

The facts of this case are described above [11.32] and [11.79]. The authors were sentenced to preventive detention, that is indeterminate sentences with a minimum non-parole period of ten years. After ten years, their sentences were reviewed by parole boards rather than courts. The HRC accepted that this process complied with article 9(4): ¶7.4. Furthermore, in terms of the ability of the Parole Board to act in judicial fashion as a ‘court’ and determine the lawfulness of continued detention under article 9, paragraph 4, of the Covenant, the Committee notes that the remaining authors have not advanced any reasons why the Board, as constituted by the State party’s law, should be regarded as insufficiently independent, impartial or deficient in procedure for these purposes. The Committee notes, moreover, that the Parole Board’s decision is subject to judicial review in the High Court and Court of Appeal. . . . EFFECTIVENESS OF RIGHT TO CHALLENGE DETENTION

[11.91]

A v AUSTRALIA (560/93)

The author was held in custody for over four years whilst seeking asylum in Australia from Cambodia [11.24]. In May 1992 the Australian Commonwealth Parliament passed the Migration Amendment Act 1992 (Cth) which inserted a new Division 4B into the Migration Act 1958. The effect of the division was that the relevant Minister could authorize the detention of ‘designated persons’ until they left Australia or were given an entry permit. The author and other ‘boat people’ in similar situations were defined as ‘designated persons’. The author argued that he was denied his rights under article 9(4), as the Australian legislation denied him an effective right to challenge his detention. Any challenge would have been futile, as his detention was automatically legal under the broad powers of detention conferred by the legislation. ¶3.5. Counsel further contends that article 9, paragraph 4, has been violated in the author’s case. The effect of division 4B of the Migration Amendment Act is that once a person is qualified as a ‘designated person’, there is no alternative to detention, and the detention

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may not be reviewed effectively by a court, as the courts have no discretion to order the person’s release. ¶5.5. Concerning the claim under article 9, paragraph 4, counsel submits that, where discretion under division 4B of the Migration Act 1958 to release a designated person does not exist, the option to take proceedings for release in court is meaningless. . . .

The State Party responded as follows with regard to article 9(4): ¶4.6. To the extent that the communication seeks to establish a violation of article 9, paragraph 4, on the ground that the reasonableness or appropriateness of detention cannot be challenged in court, the State party considers that the absence of discretion for a court to order a person’s release falls in no way within the scope of application of article 9, paragraph 4, which only concerns review of lawfulness of detention. . . . ¶7.8. As to the claim under Article 9, paragraph 4, the State party reaffirms that it was always open to the author to file an action challenging the lawfulness of his detention, e.g. by seeking a ruling from the courts as to whether his detention was compatible with Australian law. The courts had the power to release A if they determined that he was being unlawfully detained. . . . For the State party, this provision does not require that State party courts must always be free to substitute their discretion for the discretion of Parliament, in as much as detention is concerned: ‘[T]he Covenant does not require that a court must be able to order the release of a detainee, even if the detention was according to law’.

The Committee examined in some detail the requirements laid down in article 9(4) in its merits judgment in favour of the author: ¶9.5. The Committee observes that the author could, in principle, have applied to the court for review of the grounds of his detention before the enactment of the Migration Amendment Act of 5 May 1992; after that date, the domestic courts retained that power with a view to ordering the release of a person if they found the detention to be unlawful under Australian law. In effect, however, the courts’ control and power to order the release of an individual was limited to an assessment of whether this individual was a ‘designated person’ within the meaning of the Migration Amendment Act. If the criteria for such determination were met, the courts had no power to review the continued detention of an individual and to order his/her release. In the Committee’s opinion, court review of the lawfulness of detention under article 9, paragraph 4, which must include the possibility of ordering release, is not limited to mere compliance of the detention with domestic law. While domestic legal systems may institute differing methods for ensuring court review of administrative detention, what is decisive for the purposes of article 9, paragraph 4, is that such review is, in its effects, real and not merely formal. By stipulating that the court must have the power to order release ‘if the detention is not lawful’, article 9, paragraph 4, requires that the court be empowered to order release, if the detention is incompatible with the requirements in article 9, paragraph 1, or in other provisions of the Covenant. This conclusion is supported by article 9, paragraph 5, which obviously governs the granting of compensation for detention that is ‘unlawful’ either under the terms of domestic law or within the meaning of the Covenant. As the State party’s submissions in the instant case show that court review available to A was, in fact, limited to a formal assessment of the self-evident fact that he was indeed a ‘designated person’ within the meaning of the Migration Amendment Act, the Committee concludes that the author’s right, under article 9, paragraph 4, to have his detention reviewed by a court, was violated.

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[11.92] The text of article 9(4) requires that one must have an opportunity to challenge the ‘lawfulness’ of one’s detention before a court. The author in this case did have such an opportunity. However, the relevant Australian legislation, which essentially authorized the detention of aliens in A’s position, precluded any chance of success; A’s detention was automatically lawful in municipal law. The Committee’s finding of a violation of article 9(4) confirms that ‘lawfulness’ in article 9(4) means ‘lawfulness’ under the Covenant, rather than ‘lawfulness’ in municipal law. In this sense, ‘lawful’ in article 9(4) seems to equate with ‘not arbitrary’; this conclusion is reinforced by the Committee’s reference in paragraph 9(5) to article 9(1), and Mr Bhagwati’s separate concurring opinion.68 [11.93]

C v AUSTRALIA (900/99)

Despite the decision in A v Australia, the Australian government did not amend its legislation so as to remedy the article 9(4) breach. Inevitably, another case arose out of Australia’s mandatory detention legislation. The relevant detention in this case was found to constitute an arbitrary detention contrary to article 9(1) [11.25]. An identical allegation of a breach of article 9(4) was also made. The State Party responded with an attack on the reasoning in A v Australia: ¶4.34. As to the claim under article 9, paragraph 4, the State party notes that this requires a person to be able to test the lawfulness of detention. The State party rejects the suggestion by the Committee in A v Australia that ‘lawfulness’ in this provision was not limited to compliance with domestic law and must be consistent with article 9, paragraph 1, and other provisions of the Covenant. It contends there is nothing in the terms or structure of the Covenant, or in the travaux préparatoires or the Committee’s General Comments, that supports such an approach.

The majority in the Committee reaffirmed its decision regarding article 9(4) from A v Australia, and therefore found in favour of the author: ¶8.3. As to the author’s further claim of a violation of article 9, paragraph 4, related to this period of detention, the Committee refers to its discussion of admissibility above and observes that the court review available to the author was confined purely to a formal assessment of the question whether the person in question was a ‘non-citizen’ without an entry permit. The Committee observes that there was no discretion for a court, as indeed held by the Full Court itself in its judgement of 15 June 1994, to review the author’s detention in substantive terms for its continued justification. The Committee considers that an inability judicially to challenge a detention that was, or had become, contrary to article 9, paragraph 1, constitutes a violation of article 9, paragraph 4.

[11.94] Sir Nigel Rodley hinted in C v Australia that he disagreed with the jurisprudence on this issue from A v Australia: [T]he Committee . . . concluded that a violation of article 9, paragraph 4, was involved, using language tending to construe a violation of article 9, paragraph 1, as ipso jure ‘unlawful’

68

Compare the prevailing interpretation of ‘lawful’ in the context of art 17 at [16.06]ff.

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within the meaning of article 9, paragraph 4. In this the Committee followed the trail it blazed in A v Australia (560/1993). In my view this was too broad a trail. Nor was it justified by the text of the Covenant. ‘Arbitrary’ in article 9, paragraph 1, certainly covers unlawfulness. It is evident from the very notion of arbitrariness and the preparatory work. But I fail to see how the opposite is also true. Nor is there anything in the preparatory work to justify it. Yet this is the approach of A v Australia, seemingly reaffirmed by the Committee in the present case. It does not follow from this difficulty with the Committee’s approach that I necessarily take the view that article 9, paragraph 4, can never be applied in a case in which a person is detained by a State party as long as legal formality is respected. I could, for example, imagine that torture of a detainee could justify the need for recourse to a remedy that would question the continuing legality of the detention.

However, Sir Nigel Rodley fell short of actually dissenting on this point. He noted instead: My present argument is simply that the issue did not need addressing in the present case, especially in the light of the fact that the absence of the possibility of a judicial challenge to the detention forms part of the Committee’s reasoning in finding a violation of article 9, paragraph 1.

Mr Kretzmer agreed with Sir Nigel Rodley that, in light of the finding of violation of article 9(1), ‘there was no need to address the question of whether the lack of [judicial] review also involved a violation of article 9, paragraph 4’. Sir Nigel Rodley endorsed his partial dissent in C v Australia in the later case of Baban v Australia (1014/01). [11.95] The implication from these two separate opinions is that it is unnecessary for the HRC to come to conclusions regarding the violation (or non-violation) of a procedural right, article 9(4), in circumstances where a breach of a related substantive right, article 9(1), has arisen. Whilst such exposition may not be of great consequence to the victim, it is of great assistance to scholars and practitioners to know more about the meaning of the ICCPR’s guarantees. Such an approach could result in the underdevelopment of the interpretation of the ICCPR’s many procedural rights. [11.96] Sir Nigel Rodley suggests that the A v Australia interpretation of article 9(4) supported in C v Australia contorts the words therein. A right to challenge the lawfulness of one’s detention does not equate with a right to challenge the arbitrariness of detention; the latter does not textually give rise to a breach of article 9(4). Indeed, on numerous occasions the HRC has conceded that unlawful behaviour is a subset of arbitrary behaviour,69 so it therefore encompasses a smaller range of acts. Rather, as noted by Sir Nigel Rodley, the absence of any avenue of meaningful judicial review is a factor that should normally (or even always) result in the designation of an instance of detention as arbitrary and therefore contrary to article 9(1). 69

See eg General Comment 16, para 4 [16.10].

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[11.97] A broader issue raised by Sir Nigel Rodley’s individual opinion is the true meaning of the word ‘lawful’ on the numerous occasions in which it appears in the ICCPR. If ‘lawfulness’ within article 9(4) refers to lawfulness under domestic law, a State Party could perhaps negate the provision’s effectiveness by enacting legislation that authorizes any detention by the executive.70 Similarly, the prohibition of ‘unlawful’ attacks on honour and reputation in article 17(1) could be thwarted by a State that simply legislates to allow any outrageous attack on honour and reputation. Perhaps therefore a teleological, expansive interpretation of ‘lawfulness’ may be justified in order to prevent States immunizing themselves from certain ICCPR obligations by enacting perverse laws. On the other hand, it is likely that the HRC can classify such perverse laws as breaches of other ICCPR rights, as exemplified in Sir Nigel Rodley’s opinion on the interplay between article 9(1) and (4), without the need to twist the text of the ICCPR. [11.98] In Baban v Australia (1014/01) (with Mrs Wedgwood in dissent) and Bakhtiyari v Australia (1069/02), the HRC majority followed its previous decisions regarding article 9(4) in A v Australia and C v Australia. In D and E v Australia (1050/02), another case on Australia’s mandatory detention system, the HRC seemed to endorse the position of Sir Nigel Rodley in C v Australia by finding a violation of article 9(1), and refraining from making a decision on article 9(4). In the later cases of Shams v Australia (/1255, 1256, 1259, 1260, 1266, 1268, 1270, and 1288/04) and Shafiq v Australia (1324/04), it returned to its position in A v Australia and C v Australia. In Yin Fong v Australia (1442/05), decided in 2009, after finding the standard breach of article 9(1), as well as other violations [8.72], the HRC refrained from making a decision on article 9(4).71 [11.99] In Concluding Observations on the United Kingdom,72 the HRC expressed the following concern over the State’s ‘control orders’ regime [11.37]: ¶7. . . . The Committee is also concerned that the judicial procedure whereby the imposition of a control order can be challenged is problematic, since the court may consider secret material in closed session, which in practice denies the person on whom the control order is served the direct opportunity to effectively challenge the allegations against him or her (arts. 9 and 14). ... The State party should review the control order regime established under the Prevention of Terrorism Act 2005 in order to ensure . . . that the judicial procedure whereby the imposition of a control order can be challenged complies with the principle of equality of arms, which requires access by the concerned person and the legal counsel of his own choice to the evidence on which the control order is made. . . .

Right to Compensation—Article 9(5) [11.100] Article 9(5) provides for a right of compensation to all who have been unlawfully deprived of their liberty of person. Numerous cases have confirmed 70

Such a law could not even be challenged on the basis that it was insufficiently clear. At para 9.8 72 (2008) UN doc CCPR/C/GBR/CO/6. 71

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that article 9(5) compensation is payable when there is a breach of any provision of article 9.73 [11.101] Article 9(5) prescribes the payment of compensation for ‘unlawful’ detentions, which includes detentions that are unlawful under a State’s own domestic law, even if otherwise permitted under article 9.74 The HRC in A v Australia (560/93) indicated that article 9(5) also prescribes the payment of compensation when the detention is ‘lawful’ within domestic law, but contrary to the Covenant.75 Thus, as with article 9(4), the HRC seemed to import a sanction for ‘arbitrary yet lawful detentions’ into article 9(5) despite the omission of any reference to ‘arbitrary detentions’ in the provision.76 However, that assumption is thrown into doubt in the following case. [11.102]

SOTELI CHAMBALA v ZAMBIA (856/99)

The author, Soteli Chambala, was detained for 22 months in circumstances that the HRC found to be arbitrary, and therefore contrary to article 9(1).77 Two months prior to his release, the Zambian High Court found that there were no grounds to continue to detain the author under Zambian law. Soteli Chambala was not, however, released for two months. The HRC stated: ¶7.3. The Committee . . . notes that the author’s detention for the further two months following the High Court’s determination that there were no grounds to hold him in detention was, in addition to being arbitrary in terms of article 9, paragraph 1, also contrary to Zambian domestic law, thus giving rise to a violation of the right to compensation under article 9, paragraph 5.

The article 9(5) breach applied to only the final two months of the author’s detention. Though the whole 22-month detention was arbitrary and contrary to article 9(1), only the final two months could be classified as ‘unlawful’ detention. Thus, in Soteli Chambala, the violation of article 9(5) appeared to be contingent upon the illegality of the detention under Zambian law. [11.103]

ADUAYOM v TOGO (422/90)

In this case the Committee was precluded ratione temporis from examining the article 9 complaint as the authors’ claims were based on events that occurred prior to the entry into force of the Optional Protocol for Togo. The Committee therefore

73 In Santullo Valcada v Uruguay (9/77), compensation was payable for a breach of art 9(4). In Portorreal v Dominican Republic (188/84) the Committee found that art 9(5) compensation was payable for breaches of art 9(1) and (2). In Bolaños v Ecuador (238/87) compensation was held payable for violations of art 9(1) and (3). See also separate opinion of Mr Klein in Freemantle v Jamaica (625/95). 74 See, in this respect, art 5(1) ICCPR. See also decision of Mr Pocar in Aduayom v Togo (422/90) [11.103]. 75 See para 9.5 and Mr Bhagwati’s concurring opinion in A v Australia (560/93). 76 See also Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 238. 77 At para 7.2; the author was held without charge for the entire period.

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held that it was precluded from examining the claim under article 9(1) and also article 9(5). However, Mr Pocar dissented in the following terms:78 . . . assuming, as the majority view does, that the Committee was precluded ratione temporis from considering the authors’ claim under article 9, paragraph 1, of the Covenant, it would still be incorrect to conclude that it is equally precluded, ratione temporis, from examining their claim under article 9, paragraph 5. Although the right to compensation, to which any person unlawfully arrested or detained is entitled, may also be construed as a specification of the remedy within the meaning of article 2, paragraph 3, i.e. the remedy for the violation of the right set forth in article 9, paragraph 1, the Covenant does not establish a causal link between the two provisions contained in article 9. Rather, the wording of article 9, paragraph 5, suggests that its applicability does not depend on a finding of violation of article 9, paragraph 1; indeed, the unlawfulness of an arrest or detention may derive not only from a violation of the provisions of the Covenant, but also from a violation of a provision of domestic law. In this latter case, the right to compensation may exist independently of whether the arrest or detention can be regarded as the basis for a claim under article 9, paragraph 1, provided that it is unlawful under domestic law. In other words, for the purpose of the application of article 9, paragraph 5, the Committee is not precluded from considering the unlawfulness of an arrest or detention, even if it might be precluded from examining it under other provisions of the Covenant. This also applies when the impossibility to invoke other provisions is due to the fact that arrest or detention occurred prior to the entry into force of the Covenant or, following the majority view, prior to the entry into force of the . . . Optional Protocol. Since in the present case the unlawfulness of the authors’ arrest and detention under domestic law is undisputed, I conclude that their right to compensation under article 9, paragraph 5, of the Covenant has been violated, and that the Committee should have made a finding to this effect.

[11.104] Mr Pocar draws attention to the inclusion in the Covenant of article 9(5), as well as the general right to a remedy for violation of any Covenant provision in article 2(3). Article 2(3) is not an autonomous Covenant ‘right’. One is not entitled to a remedy under article 2(3) in the absence of an arguable violation of a substantive Covenant right [25.09]. Mr Pocar argues that, in contrast, article 9(5) is an autonomous right. A finding of violation of article 9(5) should not therefore be dependent upon a violation of another Covenant right, specifically another right in article 9. Pocar’s contention is supported contextually by the separate inclusion of article 9(5) in Part III of the Covenant. Indeed, it seems unlikely that article 9(5) was designed merely to replicate article 2(3) in the limited context of article 9. The majority in Aduayom was silent on this point, but their inadmissibility decision may imply that article 9(5) is not such an autonomous right. Alternatively, their decision may merely indicate that they will not consider the ‘lawfulness’ of a detention, under the Covenant or under municipal law, which occurred prior to entry into force of the Optional Protocol. Therefore, they cannot determine in such circumstances whether a breach of article 9(5) has occurred.

78

See also [2.21].

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Forced Disappearances [11.105] Forced disappearances are a grave human rights abuse which breach a number of ICCPR rights, including article 9. As demonstrated in the following cases, disappearances breach the substantive and procedural aspects of article 9. SAKER v ALGERIA (992/01) The facts are evident from the findings of violation. ¶9.5. As to the alleged violation of article 9, paragraph 1, the evidence before the Committee reveals that Mr. Saker was removed from his home by State agents. The State party has not addressed the author’s claims that her husband’s arrest was made in the absence of a warrant. It has failed to indicate the legal basis on which the author’s husband was subsequently transferred to military custody. It has failed to document its assertion that he was subsequently released, even less how he was released with conditions of safety. All these considerations lead the Committee to conclude that the detention as a whole was arbitrary, nor has the State party adduced evidence that the detention of Mr. Saker was not arbitrary or illegal. The Committee concludes that, in the circumstances, there has been a violation of article 9, paragraph 1. ¶9.6. As to the alleged violation of article 9, paragraph 3, the Committee recalls that the right to be brought ‘promptly’ before a judicial authority implies that delays must not exceed a few days, and that incommunicado detention as such may violate article 9, paragraph 3. It takes note of the author’s argument that her husband was held incommunicado for 33 days by the judicial police before being transferred to the Territorial Centre on 3 July 1994, without any possibility of access to a lawyer during that period. It concludes that the facts before it disclose a violation of article 9, paragraph 3. ¶9.7. As to the alleged violation of article 9, paragraph 4, the Committee recalls that the author’s husband had no access to counsel during his incommunicado detention, which prevented him from challenging the lawfulness of his detention during that period. In the absence of any pertinent information on this point from the State party, the Committee finds that Mr. Saker’s right to judicial review of the lawfulness of his detention . . . has also been violated.

In many of the ‘disappearance’ cases, the HRC has simply found a violation of article 9, without specifying the particular paragraph violated.79

Conclusion [11.106] The HRC has issued a large number of Optional Protocol decisions regarding most aspects of the provisions in article 9. The majority has concerned detention for the purposes of criminal justice, though other types of detention (such as preventive detention, detention of aliens in immigration detention, and detention for the reason of enforced psychiatric treatment) have arisen. 79 See eg El Hassy v Libyan Arab Jamahiriya (1422/05), para 6.5; Grioua v Algeria (1327/04), para 7.5; Kimouche v Algeria (1328/04), para 7.5; Sharma v Nepal (1469/06), para 7.3; Benaziza v Algeria (1588/07), para 9.7; and Chihoub v Algeria (1811/08), para 8.7.

12 Freedom of Movement—Article 12 • • • • • • •

Freedom of Movement within the Territory of a State . . . . . . . . . . . . . Freedom of Choice of Residence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of Article 12(1) to Aliens . . . . . . . . . . . . . . . . . . . . . . . . . . Freedom to Leave a Country—Article 12(2) . . . . . . . . . . . . . . . . . . . . Article 12(3)—Limitations to Freedom of Movement . . . . . . . . . . . . . Article 12(4)—Right to Enter One’s Own Country . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[12.02] [12.07] [12.12] [12.17] [12.27] [12.33] [12.46]

ARTICLE 12 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The abovementioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country.

[12.01] Article 12 protects the freedom of movement of persons, including the rights to move freely and to reside within the State, and the right to traverse State borders in order to both enter and leave the country.

Freedom of Movement within the Territory of a State [12.02]

GENERAL COMMENT 27

¶5. The right to move freely relates to the whole territory of a State, including all parts of federal States. According to article 12, paragraph 1, persons are entitled to move from one place to another and to establish themselves in a place of their choice. The enjoyment of this right must not be made dependent on any particular purpose or reason for the person wanting to move or to stay in a place. Any restrictions must be in conformity with paragraph 3. . . . ¶7. Subject to the provisions of article 12, paragraph 3, the right to reside in a place of one’s choice within the territory includes protection against all forms of forced internal displacement.1 It also precludes preventing the entry or stay of persons in a defined part 1 In Concluding Observations on the Russian Federation (2003) UN doc CCPR/CO/79/RUS, the HRC recommended that the State ensure that internally displaced persons were not forced to return to Chechnya through the closure of camps (para 16). See also Concluding Observations on Slovenia

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of the territory. Lawful detention, however, affects more specifically the right to personal liberty and is covered by article 9 of the Covenant. In some circumstances, articles 12 and 9 may come into play together.

[12.03] The right to liberty of movement constitutes the right to move unhindered throughout the territory of the State. This involves some overlap with the guarantee of personal liberty contained in article 9. In Celepli v Sweden (456/91), the HRC confirmed that article 9 applies to more severe restrictions on movement than those that are prohibited by article 12 [11.10]. In Gorji-Dinka v Cameroon (1134/02), the continued house arrest of a person who had been acquitted of various charges was found to breach both articles 9 and 12. It is submitted that house arrest should fall solely within article 9, reserving article 12 for less severe restrictions on liberty. Of course, article 12 is not breached where a deprivation of liberty is authorized under article 9. [12.04]

ACKLA v TOGO (505/92)

The following HRC decision is representative of the cases that have dealt with internal restrictions on movement: ¶10. The Committee notes . . . the author’s uncontested allegation that he is under prohibition of entering the district of La Kozah and his native village which forms part of this district. Article 12 of the Covenant establishes the right to liberty of movement and freedom to choose residence for everyone lawfully within the territory of the State. In the absence of any explanation from the State party justifying the restrictions to which the author has been subjected, pursuant to paragraph 3 of article 12, the Committee is of the opinion that the restriction of the author’s freedom of movement and residence is in violation of article 12 (1), of the Covenant.

Similar cases include Mpaka-Nsusu v Zaire (157/1983), Mpandanjila v Zaire (138/1983), and Bithashwiwa and Tshisekedi v Zaire (242–2/87), which all concerned arbitrary banishment measures that breached article 12(1).2 [12.05]

GENERAL COMMENT 27

¶6. The State party must ensure that the rights guaranteed in article 12 are protected not only from public but also from private interference. In the case of women, this obligation to protect is particularly pertinent. For example, it is incompatible with article 12, paragraph 1, that the right of a woman to move freely and to choose her residence be made subject, by law or practice, to the decision of another person, including a relative.3

(2005) UN doc CCPR/CO/84/SVN, para 10, regarding that State’s failure to regularize the legal status of citizens of successor States to Yugoslavia. See also Concluding Observations on Bosnia and Herzegovina (2006) UN doc CCPR/C/BIH/CO/1, para 20; Sudan (2007) UN doc CCPR/C/SDN/ CO/3, para 23; The Former Yugoslav Republic of Macedonia (2008) UN doc CCPR/C/MKD/CO/2, para 15; Croatia (2009) UN doc CCPR/C/HRV/CO/2, paras 6 and 14. 2 See also Concluding Observations on the Islamic Republic of Iran (1993) UN doc CCPR/C/79/ Add.25, para 14. 3 See also General Comment 28, para 16.

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General Comment 27 confirms that article 12, like probably all Covenant guarantees, has a ‘horizontal effect’. States must not only refrain from interfering with a person’s freedom of movement; they must also ensure that one’s freedom of movement is not unduly restricted by other persons.4 [12.06] Article 12 is explicitly limited to freedom of movement ‘within the territory of the State’. While it is now confirmed that States have extraterritorial obligations under the ICCPR [4.11], it might be arguable that extraterritoriality does not extend to article 12, given its explicit intraterritorial language. However, the HRC indicated otherwise in Concluding Observations on Israel,5 regarding its blockade of the Gaza Strip, which is not part of Israeli territory: ¶8. The Committee notes with concern the State party’s military blockade of the Gaza Strip, in force since June 2007. While recognizing the State party’s recent easing of the blockade with regard to the entry of civilian goods by land, the Committee is nevertheless concerned at the effects of the blockade on the civilian population in the Gaza Strip, including restrictions to their freedom of movement, some of which have led to deaths of patients in need of urgent medical care, and restrictions on the access to sufficient drinking water and adequate sanitation. . . .

In the same set of Concluding Observations, the HRC stated: ¶17. Referring to paragraph 19 of the Committee’s previous concluding observations (CCPR/CO/78/ISR), the Advisory Opinion of the International Court of Justice, and the State party’s Supreme Court ruling of 2005, the Committee expresses concern at the restrictions to freedom of movement imposed on Palestinians, in particular persons residing in the ‘Seam Zone’ between the wall and Israel, the frequent refusal to grant agricultural permits to access the land on the other side of the wall or to visit relatives, and the irregular opening hours of the agricultural gates. . . . The State party should comply with the Committee’s previous concluding observations and take into account the Advisory Opinion of the International Court of Justice and stop the construction of a ‘Seam Zone’ by means of a wall, seriously impeding the right to freedom of movement, and to family life. . . .

Freedom of Choice of Residence [12.07] The right to choose one’s residence is a freedom to set up permanent or temporary residence at any location within a State Party’s territory. In Concluding Observations on Israel, the HRC stated:6 ¶23. In regard to Palestinians who are resident in East Jerusalem, the Committee is concerned that the increasingly restrictive conditions for maintaining the right to permanent residence, the denial of requests for family reunification and the difficulty experienced by non-Jews in obtaining building permits and accommodation have resulted in increasing numbers being forced to move to the occupied territories. The Committee expresses its 4

See discussion of horizontal obligations at [1.114] and [4.19]ff. (2010) UN doc CCPR/C/ISR/CO/3. 6 Concluding Observations on Israel (1998) UN doc CCPR/C/79/Add.93. 5

Freedom of Movement

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profound concern at the effect of the unpublished directive of the Ministry of the Interior, under which Palestinians may lose their right to live in the city if they cannot prove that East Jerusalem has been their ‘centre of life’ for the past seven years. The Committee notes that this policy is being applied retroactively to both Palestinians who live abroad and to those who live in the West Bank or in nearby Jerusalem suburbs, but not to Israeli Jews or to foreign Jews who are permanent residents of East Jerusalem. The Committee recommends that the rules and procedures relating to permanent residency status be applied without discrimination. ¶24. The Committee deplores the demolition of Arab homes as a means of punishment. It also deplores the practice of demolitions, in part or in whole, of ‘illegally’ constructed Arab homes. The Committee notes with regret the difficulties imposed on Palestinian families seeking to obtain legitimate construction permits. The Committee considers the demolition of homes to conflict directly with the obligation of the State party to ensure without discrimination the right not to be subjected to arbitrary interference with one’s home (art. 17), the freedom to choose one’s residence (art. 12) and equality of all persons before the law and equal protection of the law (art. 26). ¶25. The Committee is also concerned that the Israel Lands Administration (ILA), responsible for the management of 93 per cent of land in Israel, includes no Arab members and that while the ILA has leased or transferred land for the development of Jewish towns and settlements, few Arab localities have been established in this way until recent years. The Committee recommends that urgent steps be taken to overcome the considerable inequality and discrimination which remain in regard to land and housing.

[12.08] In Concluding Observations on Turkmenistan, the HRC stated:7 ¶12. . . . The Committee . . . regrets that the State party maintains the system of mandatory registration at the place of residence which is a prerequisite for residence, employment, acquisition of real estate and access to health services. The Committee is concerned that this system may interfere with the enjoyment of rights under article 12 of the Covenant (art. 12).

[12.09] Of course, there are a number of limitations to a person’s right to reside wherever he or she wants, as illustrated in the following case. LOVELACE v CANADA (24/77) The matter concerned the author’s loss of her rights as a Maliseet Indian to reside on a Canadian Indian reservation. ¶15. . . . The Committee recognises the need to define the category of persons entitled to live on a reserve, for such purposes as those explained by the Government regarding protection of its resources and preservation of the identity of its people. . . .

The Committee here indicates that rights of residence can be validly restricted in order to reserve land for special minority groups. The facts of Lovelace, however, concerned the denial of those rights to a member of the relevant minority group.

7

(2012) UN doc CCPR/C/TKM/CO/1.

The ICCPR

396

The Committee went on to make its decision under article 27 of the Covenant (the minority rights provision) [24.12], rather than article 12. [12.10]

KARKER v FRANCE (833/98)

The facts are outlined directly below: ¶2.1. In 1987, Mr Karker, who is co-founder of the political movement Ennahdha, fled Tunisia, where he had been sentenced to death by trial in absentia. In 1988, the French authorities recognized him as a political refugee. On 11 October 1993, under suspicion that he actively supported a terrorist movement, the Minister of the Interior ordered him expelled from French territory as a matter of urgency. The expulsion order was not, however, enforced, and instead Mr Karker was ordered to compulsory residence in the department of Finistère. On 6 November 1993, Mr Karker appealed the orders to the Administrative Tribunal of Paris. The Tribunal rejected his appeals on 16 December 1994, considering that the orders were lawful.

The author claimed, inter alia, that these residency restrictions breached article 12. The HRC decided in favour of the State Party: ¶9.2. The Committee notes that Mr Karker’s expulsion was ordered in October 1993, but that his expulsion could not be enforced, following which his residence in France was subjected to restrictions of his freedom of movement. The State party has argued that the restrictions to which the author is subjected are necessary for reasons of national security. In this respect, the State party produced evidence to the domestic courts that Mr Karker was an active supporter of a movement which advocates violent action. It should also be noted that the restrictions of movement on Mr Karker allowed him to reside in a comparatively wide area. Moreover, the restrictions on Mr Karker’s freedom of movement were examined by the domestic courts which, after reviewing all the evidence, held them to be necessary for reasons of national security. Mr Karker has only challenged the courts’ original decision on this question and chose not to challenge the necessity of subsequent restriction orders before the domestic courts. In these circumstances, the Committee is of the view that the materials before it do not allow it to conclude that the State party has misapplied the restrictions in article 12, paragraph 3.

[12.11] In Concluding Observations on the Netherlands, the HRC has stated:8 ¶18. The Committee is concerned that making the allocation of housing in certain areas subject to additional income qualifications under the 2006 Urban Areas (Special Measures) Act, together with the deliberate housing of low-income persons and families in peripheral and central municipalities, may result in violations of articles 12, paragraph 1, and 26 of the Covenant (arts. 2, 12, paras. 1, 17 and 26). The State party should ensure that its regulation of access to housing does not discriminate against low-income families and respects the right to choose one’s residence.

Hence, the notion of ‘choice’ can be compromised by economic coercion rather than legal or forceful coercion.

8

(2009) UN doc CCPR/C/NLD/CO/4.

Freedom of Movement

397

Application of Article 12(1) to Aliens [12.12] Article 12(1) applies to all people ‘lawfully within the territory of a State’. Therefore, a State may impose restrictions on entry, so the Covenant does not guarantee a right to residency per se: GENERAL COMMENT 15 ¶5. The Covenant does not recognise the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances, an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of nondiscrimination, prohibition of inhuman treatment and respect for family life arise.9 ¶6. Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment . . . However once aliens are allowed to enter the territory of a state party they are entitled to the rights set out in the Covenant.

[12.13]

GENERAL COMMENT 27

¶4. Everyone lawfully within the territory of a State enjoys, within that territory, the right to move freely and to choose his or her place of residence. In principle, citizens of a State are always lawfully within the territory of that State. The question whether an alien is ‘lawfully’ within the territory of a State is a matter governed by domestic law, which may subject the entry of an alien to the territory of a State to restrictions, provided they are in compliance with the State’s international obligations. In that connection, the Committee has held that an alien who entered the State illegally, but whose status has been regularised, must be considered to be lawfully within the territory for the purposes of article 12.10 Once a person is lawfully within a State, any restrictions on his or her rights guaranteed by article 12, paragraphs 1 and 2, as well as any treatment different from that accorded to nationals, have to be justified under the rules provided for by article 12, paragraph 3. It is, therefore, important that States parties indicate in their reports the circumstances in which they treat aliens differently from their nationals in this regard and how they justify this difference in treatment.

The HRC therefore recognizes that aliens ‘lawfully within the country’ may potentially be granted different, lesser, rights of freedom of movement to citizens. Such a situation arose in the next case.11 [12.14]

CELEPLI v SWEDEN (456/91)

The facts are evident from the excerpts below: ¶1. The author of the communication is Ismet Celepli, a Turkish citizen of Kurdish origin living in Sweden. He claims to be the victim of violations of his human rights by Sweden. ¶2.1. In 1975, the author arrived in Sweden, fleeing political persecution in Turkey; he obtained permission to stay in Sweden but was not granted refugee status. Following the murder of 9 10 11

Indeed, see [9.98]ff. See also [20.17]ff. Celepli v Sweden (456/91) [12.14]. See also Karker v France (833/98) [12.10].

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The ICCPR

a former member of the Workers Party of Kurdistan (PKK), in June 1984 at Uppsala, suspicions of the author’s involvement in terrorist activities arose. On 18 September 1984, the author was arrested and taken into custody under the Aliens Act; he was not charged with any offence. On 10 December 1984, an expulsion order against him and eight other Kurds was issued, pursuant to sections 30 and 47 of the Swedish Aliens Act. The expulsion order was not, however, enforced as it was believed that the Kurds could be exposed to political persecution in Turkey in the event of their return. Instead, the Swedish authorities prescribed limitations and conditions concerning the Kurds’ place of residence. ¶2.2. Under these restrictions, the author was confined to his home municipality (Västerhaninge, a town of 10,000 inhabitants, 25 kilometres south of Stockholm) and had to report to the police three times a week; he could not leave or change his town of residence nor change employment without prior permission from the police.

The State Party submitted the following arguments: ¶4.2. The State party submits that the restrictions placed upon the author were in conformity with the 1980 Aliens Act, article 48(1) of which read: ‘Where it is required for reasons of national security, the Government may expel an alien or prescribe restrictions and conditions regarding his place of residence, change of domicile and employment, as well as duty to report’. In July 1989, this Act was replaced by the 1989 Aliens Act. According to a recent amendment to this Act, the possibility to prescribe an alien’s place of residence no longer exists. The State party emphasises that the measures against aliens suspected of belonging to terrorist organisations were introduced in 1973 as a reaction to increased terrorist activities in Sweden; they were only applied in exceptional cases, where there were substantial grounds to fear that the person in question played an active role in planning or executing terrorist activities. ¶4.3. The State party submits that, on 31 August 1989, a decision was taken to allow the author to stay within the boundaries of the whole county of Stockholm; his obligation to report to the police was reduced to once a week. On 5 September 1991, the expulsion order against the author was revoked. . . . ¶4.6. With regard to the author’s claim that he is a victim of a violation of article 12 of the Covenant, the State party submits that the freedom of movement protected by this article is subject to the condition that the individual is ‘lawfully within the territory of a State’. The State party contends that the author’s stay in Sweden, after the decision was taken to expel him on 10 December 1984, was only lawful within the boundaries of the Haninge municipality and later, after 31 August 1989, within the boundaries of the county of Stockholm. The State party argues that the author’s claim under article 12 is incompatible with the provisions of the Covenant, since the author can only be regarded as having been lawfully in the country to the extent that he complied with the restrictions imposed upon him. ¶4.7. Moreover, the State party invokes article 12, paragraph 3, which provides that restrictions may be imposed upon the enjoyment of article 12 rights, if they are provided by law and necessary for the protection of national security and public order, as in the present case. The State party argues therefore that these restrictions are compatible with article 12, paragraph 3, and that the author’s claim is unsubstantiated within the meaning of article 2 of the Optional Protocol.

On the merits, the Committee supported the State Party: ¶9.2. The Committee notes that the author’s expulsion was ordered on 10 December 1984, but that this order was not enforced and that the author was allowed to stay in Sweden,

Freedom of Movement

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subject to restrictions on his freedom of movement. The Committee is of the view that, following the expulsion order, the author was lawfully in the territory of Sweden, for purposes of article 12, paragraph 1, of the Covenant, only under the restrictions placed upon him by the State party. Moreover, bearing in mind that the State party has invoked reasons of national security to justify the restrictions on the author’s freedom of movement, the Committee finds that the restrictions to which the author was subjected were compatible with those allowed pursuant to article 12, paragraph 3, of the Covenant. In this connection, the Committee also notes that the State party motu proprio reviewed said restrictions and ultimately lifted them.

[12.15] With regard to Lithuania, the HRC has stated the following:12 ¶15. . . . Furthermore, the Committee expresses its concern that restrictions are imposed on the freedom of movement of asylum-seekers with temporary refugee status and that failure to observe those restrictions may result in the rejection of the claim for asylum.

This comment may be condemning blanket rules which restrict the movement of all asylum-seekers, indicating that such restrictions can be imposed only after consideration of each particular asylum-seeker’s situation.13 The comment also suggests that aliens should not face disproportionate punishment for failure to comply with restrictions on their freedom of movement. [12.16] In Concluding Observations on Mexico, the HRC stated:14 ¶13. The Committee is concerned at the obstacles to the free movement of foreigners, especially the members of non-governmental organisations investigating human rights violations on Mexican territory, and in particular the fact that residence permits have been cancelled and visas refused for the same reasons. The State party should lift the restrictions on the access and activities of persons entering Mexico to investigate human rights violations.

The HRC’s criticism of the refusal by Mexico to grant visas to foreign human rights investigators is interesting, as it questions the sanctity of a State’s sovereign right to determine which foreigners may enter its territory.15

Freedom to Leave a Country—Article 12(2) [12.17]

GENERAL COMMENT 27

¶8. Freedom to leave the territory of a State may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country. Thus travelling abroad is covered, as well as departure for permanent emigration. Likewise, the right of the individual to determine the State of destination is part of the legal guarantee. As the scope of article 12, paragraph 2, is not restricted to persons lawfully within the territory

12

(1997) UN doc CCPR/C/79/Add.87. Compare, in this respect, the decision in A v Australia (560/93) [11.24]. See also Concluding Observations on Denmark (2000) UN doc CCPR/CO/70/DNK, para 16. 14 (1999) UN doc CCPR/C/79/Add.109. 15 See also General Comment 15, para 5 [12.12]. 13

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The ICCPR

of a State, an alien being legally expelled from the country is likewise entitled to elect the State of destination, subject to the agreement of that State. . . . ¶10. The practice of States often shows that legal rules and administrative measures adversely affect the right to leave, in particular, a person’s own country.16 It is therefore of the utmost importance that States parties report on all legal and practical restrictions on the right to leave which they apply both to nationals and to foreigners, in order to enable the Committee to assess the conformity of these rules and practices with article 12, paragraph 3. States parties should also include information in their reports on measures that impose sanctions on international carriers which bring to their territory persons without required documents, where those measures affect the right to leave another country.17

[12.18] The right to leave one’s country pertains to both short or longer visits and the freedom to leave, semi-permanently, or to emigrate. It is available to both citizens and aliens, even those unlawfully in the country. For example, the unexplained temporary restrictions on the author’s right to leave the country breached article 12(2) in Orazova v Turkmenistan (1883/09).18 Furthermore, in Concluding Observations on Uzbekistan, the HRC condemned the need for individuals to attain an exit visa before leaving the country.19 [12.19]

GENERAL COMMENT 27

¶9. In order to enable the individual to enjoy the rights guaranteed by article 12, paragraph 2, obligations are imposed both on the State of residence and on the State of nationality. Since international travel usually requires appropriate documents, in particular a passport, the right to leave a country must include the right to obtain the necessary travel documents. The issuing of passports is normally incumbent on the State of nationality of the individual. The refusal by a State to issue a passport or prolong its validity for a national residing abroad may deprive this person of the right to leave the country of residence and to travel elsewhere. It is no justification for the State to claim that its national would be able to return to its territory without a passport.

Citizens therefore have a right to obtain travel documents from their own State. For example, in Oló Bahamonde v Equatorial Guinea (468/91), the unexplained denial of a passport to the author was deemed a breach of article 12(2), as the author was arbitrarily denied his right to leave Equatorial Guinea.20 Iraq has been criticized for the high administrative costs entailed in the issue of a passport.21

See also Zafar v Uzbekistan (1585/07). See Concluding Observations on Austria (1998) UN doc CCPR/CD/79/Add.103, para 11. 18 At para 7.4. 19 Concluding Observations on Uzbekistan (2010) UN doc CCPR/C/UZB/CO/3, para 18. See also Concluding Observations on Gabon (1996) UN doc CCPR/C/79/Add.71, para 16; Turkmenistan (2012) UN doc CCPR/C/TKM/CO/1, para 12. 20 See also El Dernawi v Libyan Arab Jamahiriya (1143/02). Strangely, the unlawful confiscation of the author’s passport in Marques de Morais v Angola (1128/02) was found to breach art 12(1) rather than art 12(2) (see para 6.9). 21 Concluding Observations on Iraq (1997) UN doc CCPR/C/79/Add.84, para 14. 16 17

Freedom of Movement [12.20]

401

VIDAL MARTINS v URUGUAY (57/79)

¶6.2. The Committee decides to base its views on the following facts that can be deduced from the author’s submissions which also include official documents issued by the Uruguayan authorities in the case: Sophie Vital Martins, a Uruguayan citizen residing at present in Mexico, and holder of a passport issued in 1971 in Sweden with a 10 years’ validity upon condition that its validity be confirmed after five years, was refused such confirmation by the Uruguayan authorities without explanation several times between 1975 and 1977. In 1978 the author then applied for a new passport at the Uruguayan consulate in Mexico. According to the author, issuance of a passport is subject to the approval of the Ministry of Defence and the Ministry of the Interior. Two months after her application, Sophie Vidal Martins was informed that the Ministry of the Interior had refused to approve the issue to her of a new passport. She then appealed against this decision which later was officially reconfirmed by the Uruguayan Foreign Ministry without any reasons given. The author was offered a document which would have entitled her to travel to Uruguay, but not to leave the country again. The author declined this offer for reasons of personal security. . . . ¶9. The Human Rights Committee . . . is of the view that the facts as found by it, in so far as they have occurred after 23 March 1976 (the date on which the Covenant entered into force in respect of Uruguay), disclose a violation of article 12 (2) of the Covenant, because Sophie Vidal Martins was refused the issuance of a passport without any justification therefore, thereby preventing her from leaving any country including her own.

A similar analysis is found in the other Uruguayan ‘passport cases’: Montero v Uruguay (106/81), Lichtensztein v Uruguay (77/80), and Varel Nuñez v Uruguay (108/81).22 These cases confirmed that States have a duty to provide passports to people within and outside their own territory [4.14]. [12.21] In Lichtensztein v Uruguay (77/80) and Varel Nuñez v Uruguay (108/81), the authors had been provided with alternative travel documents for humanitarian reasons by, respectively, Mexico and Italy. The Committee found that these alternative travel documents could not be regarded as sufficient substitute for Uruguayan passports. For example, the authors had no guarantee that the documents would be renewed. Therefore, the issue by a second State of alternative documents does not relieve the original State from its obligations to provide a passport. The situation is probably different where a person is provided with another passport by a second State, as this would indicate dual nationality.23 [12.22]

GONZÁLEZ del RÍO v PERU (263/87)

The author had an order for his arrest which remained pending against him for over seven years. This prevented him from leaving Peruvian territory. In relation to article 12(2), the Committee made the following comments: ¶5.3. Article 12, paragraph 2, protects an individual’s right to leave any country, including his own. The author claims that because of the arrest warrant still pending, he is prevented 22 23

See also El Ghar v Libyan Arab Jamahiriya (1107/02). Notably, some States Parties prohibit dual nationality on a variety of bases.

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from leaving Peruvian territory. Pursuant to paragraph 3 of article 12, the right to leave any country may be restricted, primarily, on grounds of national security and public order (ordre public). The Committee considers that pending judicial proceedings may justify restrictions on an individual’s right to leave his country. But where the judicial proceedings are unduly delayed, a constraint upon the right to leave the country is thus not justified. In this case, the restriction on Mr González’ freedom to leave Peru has been in force for seven years, and the date of its termination remains uncertain. The Committee considers that this situation violates the author’s rights under article 12, paragraph 2; in this context, it observes that the violation of the author’s rights under article 12 may be linked to the violation of his right, under article 14, to a fair trial.

[12.23]

SAYADI AND VINCK v BELGIUM (1472/06)

The authors’ names were placed on the UN Security Council Sanctions Committee’s List after their names had been transmitted to the Committee by the State party due to their association with a listed organization, GRF. The List purportedly lists organizations and individuals suspected of terrorism, and various sanctions followed from placement on the list, including travel restrictions. Belgium submitted the names only a few weeks after opening a criminal investigation into the authors, before the conclusion of that investigation. In fact, the investigation later concluded that the authors were not a danger to Belgian national security. The HRC found that Belgium was not required to transmit the names by Security Council resolutions [1.90]. It went on to find that the transmittal of the names, which inevitably resulted in the placement of the names on the list along with associated serious consequences, breached article 12. ¶10.5. With regard to the violation of article 12 of the Covenant, the authors indicate that they can no longer travel or leave Belgium, and that Mr. Sayadi was unable to accept an offer of employment in another country. The State party does not challenge this allegation, and the Committee observes from the outset that, in the present case, there has been a restriction of the authors’ right to travel freely. . . . ¶10.7. . . . In the present case, the Committee finds that, even though the State party is not competent to remove the authors’ names from the United Nations and European lists, it is responsible for the presence of the authors’ names on those lists and for the resulting travel ban. ¶10.8. The Committee notes that a criminal investigation that had been initiated against the authors at the request of the Public Prosecutor’s Office was dismissed in 2005, and that the authors thus do not pose any threat to national security or public order. Moreover, on two occasions the State party itself requested the removal of the authors’ names from the sanctions list, considering that the authors should no longer be subject, inter alia, to restrictions of the right to leave the country. The dismissal of the case and the Belgian authorities’ requests for the removal of the authors’ names from the sanctions list show that such restrictions are not covered by article 12, paragraph 3. The Committee considers that the facts, taken together, do not disclose that the restrictions of the authors’ rights to leave the country were necessary to protect national security or public order. The Committee concludes that there has been a violation of article 12 of the Covenant.

[12.24] The rights in article 12(2), like those in article 12(1), have a horizontal effect [12.05]. For example, the HRC has condemned a Lebanese law that

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restricted the rights of women to leave the country in the absence of the consent of their husbands.24 It also stated:25 ¶22. The Committee has noted with concern the difficulties faced by many foreign workers in Lebanon whose passports were confiscated by their employers. This practice, which the Government has conceded must be addressed more satisfactorily, is not compatible with article 12 of the Covenant. The Committee recommends that the State party take effective measures to protect the rights of these foreign workers by preventing such confiscation and by providing an accessible and effective means for the recovery of passports.

[12.25] Of course, there are limits to one’s rights to leave a country, as specified in article 12(3). Public order limitations are demonstrated in the following case: PELTONEN v FINLAND (492/92) The facts are evident from the following excerpts: ¶2.1. In June 1990, the author applied for a passport at the Finnish Embassy in Stockholm [in Sweden]. The Embassy refused to issue a passport, on the ground that Mr Peltonen had failed to report for his military service in Finland on a specified date. Under Section 9, subsection 1(6), of the Passport Act of 1986, delivery of a passport ‘may be denied’ to persons aged 17 to 30 if they are unable to demonstrate that the performance of military service is not an obstacle to the issuance of a passport. . . . ¶3. It is submitted [by the author] that the denial of a passport is (a) a disproportionate punishment in relation to the offence of failure to report for military service, (b) a violation of the author’s right, under article 12 of the Covenant, to leave any country . . .

The State Party responded as follows: ¶6.5. The State party notes that Mr Peltonen did not react to his military call-up in 1987, and that he has disregarded all subsequent call-ups. . . . The State party further notes that the author did not show that his liability for military service did not constitute a bar to the issuing of a passport, and that there were no changes in his situation which would have warranted another conclusion. Furthermore, no mention was made in his request of any of the grounds referred to in Section 10. In this context, the State party emphasises that the author does not require a passport e.g. for professional reasons and that he merely needed one for holiday travels. . . . ¶6.8. As regards the legitimate aim of the restriction, the State party asserts that the denial of a passport falls under the notion of ‘public order (ordre public)’, within the meaning of article 12, paragraph 3; the denial of a passport to a conscript has additional, even if indirect, links to the notion of ‘national security’. It argues that the authorities’ decision to reject the author’s application for a passport was necessary for the protection of public order, and constituted an interference by the public authorities with the author’s right to leave the country under the relevant provisions of the Passport Act, which was however justified. It concludes that the denial of a passport in the case was also proportional in relation to the author’s right 24 See Concluding Observations on Lebanon (1997) UN doc CCPR/C/79/Add.78, para 18; see also Concluding Observations on Sudan (1997) UN doc CCPR/C/79/Add.85, para 14. 25 (1997) UN doc CCPR/C/79/Add.78.

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to leave any country, and that the restriction is consistent with the other rights recognised by the Covenant.

The Committee found in favour of the State Party: ¶8.2. . . . There are . . . circumstances in which a State, if its law so provides, may refuse a passport to one of its citizens. ¶8.3. The travaux préparatoires to article 12, paragraph 3, of the Covenant reveal that it was agreed upon that the right to leave the country could not be claimed, inter alia, in order to avoid such obligations as national service. . . . Thus, States parties to the Covenant, whose laws institute a system of mandatory national service, may impose reasonable restrictions on the rights of individuals, who have not yet performed such service, to leave the country until service is completed, provided that all the conditions laid down in article 12, paragraph 3, are complied with. ¶8.4. In the present case, the Committee notes that the refusal by the Finnish authorities to issue a passport to the author, indirectly affects the author’s right under article 12, paragraph 2, to leave any country, since he cannot leave his country of residence, Sweden, except to enter countries that do not require a valid passport. The Committee further notes that the Finnish authorities, when denying the author a passport, acted in accordance with Section 9, subsection 1(6), of the Passport Act, and that the restrictions on the author’s right were thus provided by law. The Committee observes that restrictions of the freedom of movement of individuals who have not yet performed their military service are in principle to be considered necessary for the protection of national security and public order. The Committee notes that the author has stated that he needs his passport for holiday-travelling and that he has not claimed that the authorities’ decision not to provide him with a passport was discriminatory or that it infringed any of his other rights under the Covenant. In the circumstances of the present case, therefore, the Committee finds that the restrictions placed upon the author’s right to leave any country are in accordance with article 12, paragraph 3, of the Covenant.

[12.26] The HRC’s jurisprudence on the restriction of the travel rights of those who failed to perform national service has been inconsistent. In Concluding Observations on the Russian Federation, issued a year after the Peltonen decision, the HRC stated:26 ¶20. . . . The Committee . . . regrets that all individuals not having yet performed their national service are excluded in principle from enjoying their right to leave the country.

Article 12(3)—Limitations to Freedom of Movement [12.27] Article 12(3) contains permissible limitations to the exercise of ‘the above-mentioned rights’, being article 12(1) to (2). Article 12(4) contains its own limitation measures, which specify that the rights contained therein may be limited by ‘non-arbitrary’ measures.

26

(1995) UN doc CCPR/C/79/Add.54.

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GENERAL COMMENT 27

The HRC has issued detailed guidelines regarding the application of the permissible limitations to article 12 rights in article 12(3): ¶2. The permissible limitations which may be imposed on the rights protected under article 12 must not nullify the principle of liberty of movement, and are governed by the requirement of necessity provided for in article 12, paragraph 3, and by the need for consistency with the other rights recognised in the Covenant. . . . ¶11. Article 12, paragraph 3, provides for exceptional circumstances in which rights under paragraphs 1 and 2 may be restricted. This provision authorises the State to restrict these rights only to protect national security, public order (ordre public), public health or morals and the rights and freedoms of others. To be permissible, restrictions must be provided by law, must be necessary in a democratic society for the protection of these purposes and must be consistent with all other rights recognised in the Covenant (see para. 18 below). ¶12. The law itself has to establish the conditions under which the rights may be limited. State reports should therefore specify the legal norms upon which restrictions are founded. Restrictions which are not provided for in the law or are not in conformity with the requirements of article 12, paragraph 3, would violate the rights guaranteed by paragraphs 1 and 2. ¶13. In adopting laws providing for restrictions permitted by article 12, paragraph 3, States should always be guided by the principle that the restrictions must not impair the essence of the right (cf. art. 5, para. 1); the relation between right and restriction, between norm and exception, must not be reversed. The laws authorising the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution.27 ¶14. Article 12, paragraph 3, clearly indicates that it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected. ¶15. The principle of proportionality has to be respected not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law. States should ensure that any proceedings relating to the exercise or restriction of these rights are expeditious and that reasons for the application of restrictive measures are provided. ¶16. States have often failed to show that the application of their laws restricting the rights enshrined in article 12, paragraphs 1 and 2, are in conformity with all requirements referred to in article 12, paragraph 3. The application of restrictions in any individual case must be based on clear legal grounds and meet the test of necessity and the requirements of proportionality. These conditions would not be met, for example, if an individual were prevented from leaving a country merely on the ground that he or she is the holder of ‘State secrets’, or if an individual were prevented from travelling internally without a specific permit.28 27 See criticism of Sudan regarding the restrictions on freedom of movement imposed by ‘various executive agencies without meeting any defined legal criteria’, UN doc CCPR/C/79/Add.85, para 14. See also Pinkney v Canada (27/78) [16.08]. 28 See also Concluding Observations on Belarus (1992) UN doc CCPR.C/79/Add.5, para 6; Russian Federation (1995) UN doc CCPR/C/79/Add.54, paras 20 and 37; Ukraine, (1995) UN doc CCPR/ C/79/Add.52, para 16; Lithuania (1997) UN doc CCPR/C/79/Add.87, para 15.

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On the other hand, the conditions could be met by restrictions on access to military zones on national security grounds, or limitations on the freedom to settle in areas inhabited by indigenous or minorities communities [12.09]. ¶17. A major source of concern is the manifold legal and bureaucratic barriers unnecessarily affecting the full enjoyment of the rights of the individuals to move freely, to leave a country, including their own, and to take up residence. Regarding the right to movement within a country, the Committee has criticised provisions requiring individuals to apply for permission to change their residence or to seek the approval of the local authorities of the place of destination, as well as delays in processing such written applications. States’ practice presents an even richer array of obstacles making it more difficult to leave the country, in particular for their own nationals. These rules and practices include, inter alia, lack of access for applicants to the competent authorities and lack of information regarding requirements; the requirement to apply for special forms through which the proper application documents for the issuance of a passport can be obtained; the need for supportive statements from employers or family members; exact description of the travel route; issuance of passports only on payment of high fees substantially exceeding the cost of the service rendered by the administration; unreasonable delays in the issuance of travel documents; restrictions on family members travelling together; requirement of a repatriation deposit or a return ticket; requirement of an invitation from the State of destination or from people living there; harassment of applicants, for example by physical intimidation, arrest, loss of employment or expulsion of their children from school or university; refusal to issue a passport because the applicant is said to harm the good name of the country. In the light of these practices, States parties should make sure that all restrictions imposed by them are in full compliance with article 12, paragraph 3. ¶18. The application of the restrictions permissible under article 12, paragraph 3, needs to be consistent with the other rights guaranteed in the Covenant and with the fundamental principles of equality and non-discrimination. Thus, it would be a clear violation of the Covenant if the rights enshrined in article 12, paragraphs 1 and 2, were restricted by making distinctions of any kind, such as on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In examining State reports, the Committee has on several occasions found that measures preventing women from moving freely or from leaving the country by requiring them to have the consent or the escort of a male person constitute a violation of article 12.29

[12.29]

GENERAL COMMENT 34

In this General Comment on Article 19, freedom of expression, the HRC outlined certain restrictions on the freedom of movement of journalists which are not permitted under Article 19 or presumably Article 12: ¶45. It is normally incompatible with [Article 19(3)] to restrict the freedom of journalists and others who seek to exercise their freedom of expression (such as persons who wish to travel to human rights-related meetings) to travel outside the State party, . . . or to restrict freedom of movement of journalists and human rights investigators within the State party (including to conflict-affected locations, the sites of natural disasters and locations where there are allegations of human rights abuses). . . . 29

See also General Comment 28, para 16.

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[12.30] The limitations listed in article 12(3) reflect those enumerated in articles 18, 19, 21, and 22. The case law on article 12, and therefore its limitations, is relatively scarce. Celepli v Sweden [12.14] and Karker v France [12.10] provide examples of the national security limitation, while Peltonen v Finland (492/1992) provides an example of the public order limitation [12.25].30 The Committee made it clear in González del Río v Peru (263/87) that pending judicial proceedings may justify restrictions on an individual’s right to leave his country, presumably on the basis of public order, but not if such proceedings are unduly delayed [12.22]. It can be surmised that the other relevant limitations of public health,31 public morals,32 and the rights and freedoms of others,33 will be interpreted in a similar manner to the way they have been in the context of other ICCPR rights.34 [12.31] In Concluding Observations on Israel, the HRC expressed concern over restrictions on the right to freedom of movement that had been imposed as a response to terrorist threats from the Occupied Territories.35 The HRC stated: ¶19. While again acknowledging the seriousness of the State party’s security concerns that have prompted recent restrictions on the right to freedom of movement, for example through imposition of curfews or establishment of an inordinate number of roadblocks, the Committee is concerned that the construction of the ‘Seam Zone’, by means of a fence and, in part, of a wall, beyond the Green Line, imposes additional and unjustifiably severe restrictions on the right to freedom of movement of, in particular, Palestinians within the Occupied Territories. The ‘Seam Zone’ has adverse repercussions on nearly all walks of Palestinian life; in particular, the wide ranging restrictions on freedom of movement disrupt access to health care, including emergency medical services, and access to water. The Committee considers that these restrictions are incompatible with article 12 of the Covenant. The State party should respect the right to freedom of movement guaranteed under article 12. The construction of a ‘Seam Zone’ within the Occupied Territories should be stopped.

[12.32] The following common measures most likely constitute permissible restrictions on freedom of movement: traffic safety rules, reasonable restrictions on access to nature reserves or animal sanctuaries, earthquake or avalanche zones, quarantine zones, or areas of civil unrest,36 and, of course, prohibitions on unlicensed access to private property.37 Furthermore, certain people, such as convicted criminals 30 See also Concluding Observations on Israel (1999) UN doc CCPR/C/79/Add.93, paras 22–3. See [18.48]ff for examples of how the Committee has dealt with public order and national security limitations in the context of freedom of expression. 31 See Singh Bhinder v Canada (208/86) at [17.31]. 32 See eg Hertzberg v Finland (61/79) at [18.68] and the ensuing commentary. 33 See [18.66]ff. 34 See General Comment 27, para 2 [12.28]; see also ‘Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’ (1985) 7 HRQ 3, which indicates that all limitation clauses in the ICCPR are to be interpreted in the same way with regard to each right. 35 (2003) UN doc CCPR/CO/78/ISR. 36 Alternatively, a derogation from art 12 could be entered during times of public emergency. 37 See M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005), 277–81. Indeed, such access must be restrained by the property owner’s rights of privacy: see [16.15]ff.

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and individuals performing military service,38 may be legitimately subjected to limits on their freedom of movement.

Article 12(4)—Right to Enter One’s Own Country [12.33]

GENERAL COMMENT 27

¶19. The right of a person to enter his or her own country recognises the special relationship of a person to that country. The right has various facets. It implies the right to remain in one’s own country. It includes not only the right to return after having left one’s own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country (for example, if that country is the person’s State of nationality). The right to return is of the utmost importance for refugees seeking voluntary repatriation. It also implies prohibition of enforced population transfers or mass expulsions to other countries. . . . ¶21. In no case may a person be arbitrarily deprived of the right to enter his or her own country. The reference to the concept of arbitrariness in this context is intended to emphasise that it applies to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country.

Article 12(4) expressly permits denial of the rights therein where such denial is reasonable and therefore not ‘arbitrary’. However, the HRC suggests at paragraph 21 that there may not be any circumstances where such deprivation could be deemed reasonable. [12.34] In Concluding Observations on the Dominican Republic, the HRC stated that ‘punishment by exile is not compatible with the Covenant’.39 In Concluding Observations on New Zealand, the HRC noted that the requirement of return visas for permanent alien residents (and even some citizens) raised issues under article 12(4).40 [12.35]

JM v JAMAICA (165/84)

The facts of this case are described in the excerpts: ¶1.2. The facts are described as follows: upon losing his passport on 22 June 1983, J. M. obtained, on the same day, a certificate from the Jamaican Consulate in Paris confirming his identity. The certificate was issued for the purpose of facilitating his travel to the Jamaican Embassy in Brussels, Belgium, where he hoped to obtain a new passport. On 7 July 1983, See Vuolanne v Finland (265/87), para 9.4 [11.89]. (1993) UN doc CCPR/C/790/Add.18, para 6. 40 (2002) UN doc CCPR/CO/75/NZL, para 12. 38 39

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J. M. was denied a new passport at the Jamaican Embassy in Brussels because he was not in possession of a birth certificate. He allegedly requested the responsible officer at the Embassy to contact the competent services in Kingston in order to provide a birth certificate. Allegedly, however, the Jamaican Embassy had him evicted from the Embassy and he was arrested by the Belgian police. From 8 to 27 July 1983, he was detained in various prisons in Belgium and then deported to France. He went back to the Jamaican Consulate in Paris which, at that stage, also refused to help him and had him arrested by the French police, who kept him under detention for two days. On 18 August 1983, he flew back to Kingston, Jamaica, but he was refused entry because he did not have a passport and, allegedly, because the only documents in his possession were in French and not in English. He was then made to board an Aeroflot flight to Moscow. The following day, having landed at Moscow airport, he was put on a flight to Luxembourg, from where he flew to Paris. On 23 August 1983, he returned to Brussels and was given refuge at FEU. All his subsequent efforts during the months of August to December 1983 and in January 1984 to obtain a passport, including the intervention of a Belgian attorney, were in vain.

The author claimed that the above facts constituted a breach of article 12(4) by Jamaica. The State Party responded as follows: ¶5.2. As to the substance of the author’s claim, the State party explained that ‘although the onus would clearly be on a person claiming to be a citizen of a country to furnish evidence in support of that claim, the Government has carried out the most intensive investigations possible with a view to discovering whether [J. M.] was born in Jamaica. This search of the relevant records does not disclose the registration of the birth of [J. M.] in Jamaica. A search of relevant records does not disclose that a Jamaican passport was ever issued to [J. M.]’. ¶5.3. The State party further explained that J. M. ‘arrived in Jamaica on 18 August 1983 and was refused leave to land because he was unable to substantiate his claim that he was Jamaican’. The State party added ‘that [J. M.], who said he had lost his Jamaican passport and also told the Immigration Officers that he had lived in Jamaica up to three years prior to the date of his arrival in Jamaica, was unable to provide even the most basic information about Jamaica. For example, he could not say where he was born, where he had lived prior to leaving Jamaica, what school he had attended or give the names of anybody who knew him’.

The Committee evidently accepted the State Party’s arguments, and found the complaint inadmissible. This case indicates that an alleged victim must provide evidence that a State is in fact his/her ‘own country’ before gaining rights under article 12(4). One must note, however, that Jamaica apparently made significant efforts to ascertain JM’s status, so Jamaica had discharged any burden of proof it may have had. [12.36]

GENERAL COMMENT 27

¶20. The wording of article 12, paragraph 4, does not distinguish between nationals and aliens (‘no one’). Thus, the persons entitled to exercise this right can be identified only by interpreting the meaning of the phrase ‘his own country’. The scope of ‘his own country’ is broader than the concept ‘country of his nationality’. It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given

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country, cannot be considered to be a mere alien. This would be the case, for example, of nationals of a country who have there been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them. The language of article 12, paragraph 4, moreover, permits a broader interpretation that might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence. Since other factors may in certain circumstances result in the establishment of close and enduring connections between a person and a country, States parties should include in their reports information on the rights of permanent residents to return to their country of residence.

[12.37]

TOALA v NEW ZEALAND (675/95)

The authors in this case were born in Western Samoa and residing in New Zealand at the time of the communication, where they were served with deportation orders. ¶2.5. The authors claim that they are New Zealand citizens pursuant to the decision of the Judicial Committee of the Privy Council in Lesa v The Attorney-General of New Zealand [1983] 2 A.C. 20. In this case, the Privy Council held that by virtue of the British Nationality and Status of Aliens (in New Zealand) Act 1928, persons born in Western Samoa between 13 May 1924 and 1 January 1949 (and their descendants) are New Zealand citizens. . . . ¶2.7. The response of the New Zealand Government was to negotiate a Protocol to the Treaty of Friendship between New Zealand and Western Samoa. The Protocol was ratified on 13 September 1982 by the two parties. Within one month, the New Zealand Government passed into law the Citizenship (Western Samoa) Act of 1982, which gave effect to the Protocol in New Zealand, and nullified the effect of the Lesa decision, except for Ms. Lesa herself and a very limited number of persons. . . . ¶9.2. Counsel reiterates the original claim that the authors are Samoan and that the Judicial Committee of the Privy Council made it clear that New Zealand is the authors’ own country. She contends that when New Zealand passed a law depriving the authors of New Zealand Citizenship, it placed the authors into a category of aliens which the New Zealand Government could legitimately exclude from New Zealand. In that sense, she submits that the authors are deprived of their rights under article 12, paragraph 4, of the Covenant. . . .

The HRC found in favour of the State Party: ¶11.3. The Committee notes that the effect of the 1982 Lesa decision was to make four of the authors New Zealand citizens, as from the date of their birth. The fifth author Eka Toala was born in 1984, and appears not to have been affected by Lesa. The four authors who had New Zealand nationality under the Lesa decision, were by virtue of that fact entitled to enter New Zealand. When the 1982 Act took away New Zealand citizenship it removed their right to enter New Zealand as citizens. Their ability to enter New Zealand thereafter was governed by New Zealand immigration laws. ¶11.4. The Committee’s general comment on article 12 observes that ‘A State party must not by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent that person from returning to his or her own country.’ In this case, the Committee considers that the circumstances in which the authors gained and then lost

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New Zealand citizenship need to be examined in the context of the issues which arise under article 12 (4). ¶11.5. The Committee notes that in 1982 the authors had no connection with New Zealand by reason of birth, descent from any New Zealander, ties with New Zealand or residence in New Zealand. They were unaware of any claim to New Zealand citizenship at the time of the Lesa decision and had acquired New Zealand citizenship involuntarily. It also appears that, with the exception of Mr Toala, none of the authors had ever been in New Zealand. All these circumstances make it arguable that New Zealand did not become their ‘own country’ by virtue of the Lesa decision. But in any event, the Committee does not consider that the removal of their New Zealand citizenship was arbitrary. In addition to the circumstances already mentioned, none of the authors had been in New Zealand between the date of the Lesa decision and the passage of the 1982 Act. They had never applied for a New Zealand passport or claimed to exercise any rights as New Zealand citizens. The Committee is therefore of the view that article 12 (4) was not violated in the authors’ case.

The HRC therefore felt that the application of the Citizenship (Western Samoa) Act 1982 to the authors was not arbitrary. None of the authors had any ties with New Zealand during the brief period in which they held New Zealand citizenship, and they never sought to rely on that citizenship while it existed. The HRC also indicated that, in the interim period between the Lesa decision and the passage of the Act, when the authors were NZ citizens, it was nevertheless arguable that NZ did not become their ‘own country’ due to their lack of connection with that country. Thus, citizenship may not be a decisive indicator of one’s ‘own country’ for the purposes of article 12(4) in the absence of a real connection to a country.41 [12.38] The Toala decision confirms that citizenship and residency rights can be removed from the people of a State’s former colonies without breaching article 12(4), at least so long as those people have no genuine ties with the State at the time of such removal. The case does not authorize the blanket deprivation of the citizenship and residency rights of all of the people of former colonies; such laws may breach articles 12(4) and 26.42 [12.39]

STEWART v CANADA (538/93)

The author was a British Citizen, residing in Ontario, having emigrated there at age 7. He lived with his sick mother and handicapped brother, and had two young children who resided with his former wife. He faced deportation under Canada’s Immigration Act because he had been convicted of 42 petty crimes, including drug possession, one count of bodily harm, and traffic offences. In response to the author’s criminal record, the State Party issued a deportation order, which could be enforced against the author. If deported, the author argued that he would face an absolute statutory bar to re-entering Canada. The State Party denied he faced an absolute bar. Nevertheless, his re-entry would be dependent upon the benevolence of the State Party, so he would have no ‘right’ of re-entry. 41 42

S Joseph, ‘Human Rights Committee: Recent Cases’ (2001) 1 HRLR 83, 89. Joseph, ‘Human Rights Committee: Recent Cases’, 89–90.

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The author submitted the following argument regarding article 12(4): ¶3.4. The author submits that article 12, paragraph 4, is applicable to his situation since, for all practical purposes, Canada is his own country. His deportation from Canada would result in an absolute statutory bar from reentering Canada. It is noted in this context that article 12(4) does not indicate that everyone has the right to enter his country of nationality or of birth but only ‘his own country’. Counsel argues that the U.K. is no longer the author’s ‘own country’, since he left it at the age of seven and his entire life is now centred upon his family in Canada—thus, although not Canadian in a formal sense, he must be considered de facto a Canadian citizen.

The Committee majority found in favour of the State Party: ¶12.2. Article 12, paragraph 4, of the Covenant provides: ‘No one shall be arbitrarily deprived of the right to enter his own country’. This article does not refer directly to expulsion or deportation of a person. It may, of course, be argued that the duty of a State party to refrain from deporting persons is a direct function of this provision and that a State party that is under an obligation to allow entry of a person is also prohibited from deporting that person. Given its conclusion regarding article 12, paragraph 4, that will be explained below, the Committee does not have to rule on that argument in the present case. It will merely assume that if article 12, paragraph 4, were to apply to the author, the State party would be precluded from deporting him. ¶12.3. It must now be asked whether Canada qualifies as being Mr Stewart’s country. In interpreting article 12, paragraph 4, it is important to note that the scope of the phrase ‘his own country’ is broader than the concept ‘country of his nationality’, which it embraces and which some regional human rights treaties use in guaranteeing the right to enter a country. Moreover, in seeking to understand the meaning of article 12, paragraph 4, account must also be had of the language of article 13 of the Covenant. That provision speaks of ‘an alien lawfully in the territory of a State party’ in limiting the rights of States to expel an individual categorised as an ‘alien’. It would thus appear that ‘his own country’ as a concept applies to individuals who are nationals and to certain categories of individuals who, while not nationals in a formal sense, are also not ‘aliens’ within the meaning of article 13, although they may be considered as aliens for other purposes. ¶12.4. Since the concept ‘his own country’ is not limited to nationality in a formal sense, that is, nationality acquired on birth or by conferral, it embraces, at the very least, an individual who, because of his special ties to or claims in relation to a given country cannot there be considered to be a mere alien. This would be the case, for example, of nationals of a country who have there been stripped of their nationality in violation of international law and of individuals whose country of nationality has been incorporated into or transferred to another national entity whose nationality is being denied them. In short, while these individuals may not be nationals in the formal sense, neither are they aliens within the meaning of article 13. The language of article 12, paragraph 4, permits a broader interpretation, moreover, that might embrace other categories of long-term residents, particularly stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence. . . . ¶12.5. The question in the present case is whether a person who enters a given State under that State’s immigration laws, and subject to the conditions of those laws, can regard that State as his own country when he has not acquired its nationality and continues to retain the nationality of his country of origin. The answer could possibly be positive were the country of immigration to place unreasonable impediments on the acquiring of nationality by new immigrants. But when, as in the present case, the country of immigration facilitates

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acquiring its nationality, and the immigrant refrains from doing so, either by choice or by committing acts that will disqualify him from acquiring that nationality, the country of immigration does not become ‘his own country’ within the meaning of article 12, paragraph 4, of the Covenant. In this regard it is to be noted that while in the drafting of article 12, paragraph 4, of the Covenant the term ‘country of nationality’ was rejected, so was the suggestion to refer to the country of one’s permanent home. ¶12.6. Mr Stewart is a British national both by birth and by virtue of the nationality of his parents. While he has lived in Canada for most of his life he never applied for Canadian nationality. It is true that his criminal record might have kept him from acquiring Canadian nationality by the time he was old enough to do so on his own. The fact is, however, that he never attempted to acquire such nationality. Furthermore, even had he applied and been denied nationality because of his criminal record, this disability was of his own making. It cannot be said that Canada’s immigration legislation is arbitrary or unreasonable in denying Canadian nationality to individuals who have criminal records. ¶12.7. This case would not raise the obvious human problems Mr Stewart’s deportation from Canada presents were it not for the fact that he was not deported much earlier. Were the Committee to rely on this argument to prevent Canada from now deporting him, it would establish a principle that might adversely affect immigrants all over the world whose first brush with the law would trigger their deportation lest their continued residence in the country convert them into individuals entitled to the protection of article 12 (4). ¶12.8. Countries like Canada, which enable immigrants to become nationals after a reasonable period of residence, have a right to expect that such immigrants will in due course acquire all the rights and assume all the obligations that nationality entails. Individuals who do not take advantage of this opportunity and thus escape the obligations nationality imposes can be deemed to have opted to remain aliens in Canada. They have every right to do so, but must also bear the consequences. The fact that Mr Stewart’s criminal record disqualified him from becoming a Canadian national cannot confer on him greater rights than would be enjoyed by any other alien who, for whatever reasons, opted not to become a Canadian national. Individuals in these situations must be distinguished from the categories of persons described in paragraph 12.4 above. ¶12.9. The Committee concludes that as Canada cannot be regarded as Mr Stewart’s country for the purposes of article 12, paragraph 4, of the Covenant, there could not have been a violation of that article by the State party.

The Committee went on to find that the interference with Mr Stewart’s family relations that inevitably would flow from the deportation could not be regarded as violations of articles 17 and 23 of the Covenant.43 Despite a vigorous dissent, the strict Stewart interpretation of article 12(4) was followed in Canepa v Canada (558/93) and Madafferi v Australia (1011/01). [12.40]

NYSTROM v AUSTRALIA (1557/07)

The author in this case was a Swedish national who arrived in Australia at the age of 25 days and lived there until his 30s. In his youth, he had been for a time a ward 43

See [20.24].

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The ICCPR

of the State. From the age of 10, he committed a number of crimes, including offences of rape and armed robbery. He also developed a serious drinking problem. He was unaware that he was not an Australian citizen until the possibility of his visa being cancelled was raised. His visa was cancelled on character grounds, due to his substantial criminal record, in 2004 and he was deported in 2006. He argued that his deportation breached article 12(4).44 The HRC majority agreed: ¶7.4. With regard to the author’s claim under article 12, paragraph 4, of the Covenant, the Committee must first consider whether Australia is indeed the author’s ‘own country’ for purposes of this provision and then decide whether his deprivation of the right to enter that country would be arbitrary. On the first issue, the Committee recalls its General Comment No. 27 on freedom of movement where it has considered that the scope of ‘his own country’ is broader than the concept ‘country of his nationality’. It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. In this regard, it finds that there are factors other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality. The words ‘his own country’ invite consideration of such matters as long standing residence, close personal and family ties and intentions to remain, as well as to the absence of such ties elsewhere. ¶7.5. In the present case, the author arrived in Australia when he was 27 days old, his nuclear family lives in Australia, he has no ties to Sweden and does not speak Swedish. On the other hand, his ties to the Australian community are so strong that he was considered to be an ‘absorbed member of the Australian community’ by the Australian Full Court in its judgement dated 30 June 2005; he bore many of the duties of a citizen and was treated like one, in several aspects related to his civil and political rights such as the right to vote in local elections or to serve in the army. Furthermore, the author alleges that he never acquired the Australian nationality because he thought he was an Australian citizen. The author argues that he was placed under the guardianship of the State since he was 13 years old and that the State party never initiated any citizenship process for all the period it acted on the author’s behalf. The Committee observes that the State party has not refuted the latter argument. Given the particular circumstances of the case, the Committee considers that the author has established that Australia was his own country within the meaning of article 12, paragraph 4 of the Covenant, in the light of the strong ties connecting him to Australia, the presence of his family in Australia, the language he speaks, the duration of his stay in the country and the lack of any other ties than nationality with Sweden. ¶7.6. As to the alleged arbitrariness of the author’s deportation, the Committee recalls its General Comment No. 27 on freedom of movement where it has stated that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country. In the present case, the Minister’s decision to deport him occurred almost 14 years after the conviction for rape 44

See also [20.28].

Freedom of Movement

415

and intentionally causing injury and over nine years after his release from prison on those charges, seven years after the armed robbery convictions and a number of years after his release from prison on the latter charges; and more importantly at a time where the author was in a process of rehabilitation. The Committee notes that the State party has provided no argument justifying the late character of the Minister’s decision. In light of these considerations, the Committee considers that the author’s deportation was arbitrary, thus violating article 12, paragraph 4 of the Covenant.

[12.41]

WARSAME v CANADA (1959/10)

As in Nystrom, the majority of the HRC adopted a broader approach to article 12(4) than that adopted in earlier cases such as Stewart. Warsame concerned the prospective deportation of a Somalian national to Somalia due to his extensive criminal record. ¶8.5. In the present case, the author arrived in Canada when he was four years old, his nuclear family lives in Canada, he has no ties to Somalia and has never lived there and has difficulties speaking the language. The Committee observes that it is not disputed that the author has lived almost all his conscious life in Canada, that he received his entire education in Canada and that before coming to Canada he lived in Saudi Arabia and not in Somalia. It also notes the author’s claim that he does not have any proof of Somali citizenship. In the particular circumstances of the case, the Committee considers that the author has established that Canada was his own country within the meaning of article 12, paragraph 4, of the Covenant, in the light of the strong ties connecting him to Canada, the presence of his family in Canada, the language he speaks, the duration of his stay in the country and the lack of any other ties than at best formal nationality with Somalia.

As in Nystrom, the HRC found that the deportation would not be justified on the basis of preventing crime in Canada, so it would breach article 12(4). [12.42] In both Nystrom and Warsame, a substantial minority dissented with regard to this broader view of article 12(4). For example, in Warsame, Sir Nigel Rodley (with whom five other members of the HRC agreed in separate opinions), stated: As to article 12, paragraph 4, the Committee gives the impression that it relies on General Comment 27 for its view that Canada is the author’s own country. Certainly, the General Comment states that ‘the scope of “his own country” is broader than the concept of “country of his nationality”’. What the Committee overlooks is that all the examples given in the General Comment of the application of that broader concept are ones where the individual is deprived of any effective nationality. The instances offered by the General Comment are those relating to ‘nationals of a country who have been stripped of their nationality in violation of international law’; ‘individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them’; and ‘stateless persons arbitrarily denied the right to acquire the nationality of the country of . . . residence’ (General Comment 27, paragraph 20). None of the examples applies to the present case. Nor has the author sought to explain why he did not seek Canadian nationality, as implicitly suggested by the State party . . . . Accordingly, I am not convinced that article 12, paragraph 4, would be violated were the author to be sent to Somalia.

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[12.43] Similarly, in Nystrom, five members expressed dissent from the expansion of article 12(4). However, they were willing to countenance that a finding of violation of article 12(4) could arise in Nystrom. Sir Nigel Rodley, Ms Keller, and Mr O’Flaherty stated: [T]he State party has not addressed the author’s assertion that he did not know that he was not an Australian citizen, an assertion whose plausibility is bolstered by the fact that the State party assumed responsibility for his guardianship for a substantial and formative period of his life. In such an exceptional, borderline case, we are unwilling to conclude definitively that article 12, paragraph 4, could not be violated. However, we consider that, in the light of its finding of a violation of articles 17 and 23, paragraph 1,45 the Committee could and should have refrained from going down the path that it was to tread far less explicably in Warsame v Canada.

[12.44] In General Comment 27, the HRC states that ‘individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them’ have article 12(4) rights [12.36]. Such individuals may include colonial peoples46 and peoples on land occupied by another State, such as the Palestinians of the West Bank and Gaza strip. On the contentious issue of whether Palestinians have a right of return to Israeli territory, the HRC has merely stated:47 ¶22. While acknowledging the security concerns that have led to restrictions on movement, the Committee notes with regret the continued impediments imposed on movement, which affect mostly Palestinians travelling in and between East Jerusalem, the Gaza Strip and the West Bank, and which have grave consequences affecting nearly all areas of Palestinian life. The Committee considers this to raise serious issues under article 12. In regard to persons in these areas, the Committee urges Israel to respect the right to freedom of movement provided for under article 12, including the right to return to one’s country.

The HRC’s one-line reference to a Palestinian ‘right to return’ is unfortunately vague. It does not address the crucial issue of whether the Palestinians who left the Israeli territory upon Israel’s establishment in 1948, and their descendants, have a right of return. The HRC’s brevity is perhaps unsurprising, given the intensely emotional, political, and even violent nature of the debate over this issue; realpolitik can impinge on the decisions of the HRC, as with most international institutions. Indeed, no references to a ‘right of return’ were contained in the Concluding Observations on Israel, issued in August 2003 or of September 2010. Based on the HRC’s jurisprudence, the existence of a Palestinian’s right to enter Israel would depend on the level of real connection that that person had with the Israeli territory, and the reasonableness of any decision to exclude that person. [12.45] In Concluding Observations on the United Kingdom, the HRC has stated: ¶22. The Committee . . . takes note of the recent decision of the Court of Appeal in Regina (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 2) (2007) 45

See [20.28]. See also Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 288–9. 47 Concluding Observations on Israel (1998) UN doc CCPR/C/79/Add.93. 46

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indicating that the Chagos islanders who were unlawfully removed from the British Indian Ocean Territory should be able to exercise their right to return to the outer islands of their territory (art. 12). The State party should ensure that the Chagos islanders can exercise their right to return to their territory and should indicate what measures have been taken in this regard. It should consider compensation for the denial of this right over an extended period. . . .

Conclusion [12.46] Despite the prescription that limits to freedom of movement and the right to leave a country be interpreted narrowly, States Parties have successfully raised these limitations to justify restrictions on these rights in Celepli v Sweden (456/91), Peltonen v Finland (492/92), and Karker v France (833/98). Article 12(2) guarantees the right to a passport unless genuine reasons for refusal exist. The State party failed to justify its actions which contributed to the restrictions on the authors’ travel in Sayadi and Vinck v Belgium (1472/06). The HRC’s most controversial jurisprudence under article 12 has possibly concerned the right to enter one’s ‘own country’ under article 12(4). The strict interpretation of ‘own country’ in Stewart v Canada (538/93) was overturned in Nystrom v Australia (1557/07) and Warsame v Canada (1959/10). Furthermore, Toala v New Zealand (675/95) confirms that one’s ties to a country have to be genuinely strong before a State will be deemed one’s ‘own country’. Exceptionally, it may even be that citizenship per se is not enough to constitute such a strong link.

13 Procedural Rights Against Expulsion—Article 13 • • • • • • • •

Scope of Rights under Article 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Relationship with Article 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aliens Eligible for Article 13 Protection . . . . . . . . . . . . . . . . . . . . . . . . Expulsion in Accordance ‘with Law’ . . . . . . . . . . . . . . . . . . . . . . . . . . Right to be Heard by a Competent Authority . . . . . . . . . . . . . . . . . . . . Right to Review by a Competent Authority . . . . . . . . . . . . . . . . . . . . . Rights of Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Abrogation of Article 13 Rights ‘where Compelled by Reasons of National Security’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[13.02] [13.07] [13.09] [13.10] [13.12] [13.16] [13.18] [13.19] [13.26]

ARTICLE 13 An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

[13.01] Article 13 gives aliens, who are lawfully within the territory of a State Party, procedural rights to protect them from expulsion. Expulsion of such aliens must accord with the State Party’s own law. Such aliens also have a right to present arguments against expulsion and to have their cases reviewed by competent State authorities. These ‘review’ rights may be abrogated ‘where compelling reasons of national security’ so require.

Scope of Rights Under Article 13 [13.02] Article 13 does not provide for substantive freedom from expulsion. Thus article 13 does not protect an alien from expulsion, so long as procedural guarantees to challenge expulsion are available. Adherence to procedural safeguards helps ensure that the State Party’s substantive law regarding expulsion is not being administered in an arbitrary manner. Furthermore, they should ensure that determinations of residency status are processed in a timely manner.1 However, it is 1 See Concluding Observations on the Russian Federation (2003) UN doc CCPR/CO/79/RUS, para 25.

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uncertain whether article 13 prohibits the adoption and implementation by States Parties of laws which authorize expulsion on arbitrary grounds. However, other ICCPR provisions act to constrain the adoption by States Parties of arbitrary laws regarding expulsion. For example, article 26 prevents the adoption of blatantly discriminatory laws regarding expulsion. Article 7 prohibits expulsion to a State where the expelled person may foreseeably face torture. In some circumstances, articles 23 and 24 may prohibit expulsions which split up a family.2 Article 12(4) prohibits the expulsion of certain aliens who can claim the expelling State as their ‘own country’. [13.03]

GENERAL COMMENT 15

¶9. . . . [Article 13] is applicable to all procedures aimed at the obligatory departure of an alien, whether described in national law as expulsion or otherwise. If such procedures entail arrest, the safeguards of the Covenant relating to deprivation of liberty (articles 9 and 10) may also be applicable. If the arrest is for the particular purpose of extradition, other provisions of national and international law may apply. Normally an alien who is expelled must be allowed to leave for any country that agrees to take him. . . . ¶10. Article 13 directly regulates only the procedure and not the substantive grounds for expulsion. However, by allowing only those carried out ‘in pursuance of a decision reached in accordance with law’, its purpose is clearly to prevent arbitrary expulsions. On the other hand, it entitles each alien to a decision in his own case and, hence, article 13 would not be satisfied with laws or decisions providing for collective or mass expulsions. This understanding, in the opinion of the Committee, is confirmed by further provisions concerning the right to submit reasons against expulsion and to have the decision reviewed by and to be represented before the competent authority or someone designated by it. . . .

[13.04] Note the reference in paragraph 10 to the incompatibility of mass expulsions with article 13.3 The HRC here recognize that mass expulsions cannot satisfy the procedural requirements of article 13, which compel consideration of each prospective deportee’s case. This demonstrates how procedural guarantees import at least some degree of substantive accountability. Perhaps the prohibition on mass expulsions prohibits a State from expelling people on the basis of an immutable characteristic, such as race. [13.05] The HRC majority in Giry v Dominican Republic (193/85) and Kindler v Canada (470/91) confirmed that article 13 rights apply in the context of extradition. For example, the majority in Kindler noted that: ¶6.6. The Committee also found that it is clear from the travaux préparatoires that it was not intended that article 13 of the Covenant . . . should detract from normal extradition arrangements. Nonetheless, whether an alien is required to leave the territory through expulsion or extradition, the general guarantees of article 13 in principle apply, as do the requirements of the Covenant as a whole. . . . See eg Winata v Australia (930/00) [20.29]. See also Concluding Observations on the Dominican Republic (2001) UN doc CCPR/CO/71/ DOM, para 16, and Concluding Observations on Estonia (2003) UN doc CCPR./CO/77/EST, para 13, emphasizing the need for individual consideration of each application for asylum. 2 3

420 [13.06]

The ICCPR GENERAL COMMENT 28

¶17. States parties should ensure that alien women are accorded on an equal basis the right to submit reasons against their expulsion, and to have their case reviewed as provided in article 13. In this regard, they should be entitled to submit reasons based on gender specific violations of the Covenant such as those mentioned in paragraphs 10 and 11 above [eg rape, forced sterilization, or dowry killings].

In General Comment 28, the HRC indicates that there is a substantive element to the article 13 guarantee, in that gender-based violations should be acceptable reasons for forestalling expulsion from a country. Alternatively, the source of such rights may arise from other ICCPR provisions, such as article 7 [9.62].

Relationship with Article 14 [13.07] Procedural rights are provided in both articles 13 and 14. Do prospective deportees have rights under both provisions? PK v CANADA (1234/03) The author had applied for asylum in Canada but her claim was rejected. She claimed a number of violations of the ICCPR, including article 14. The HRC found her claims inadmissible and stated the following: ¶7.5. The Committee recalls that the concept of a ‘suit at law’ under article 14, paragraph 1, of the Covenant is based on the nature of the right in question rather than on the status of one of the parties. In the present case, the proceedings relate to the author’s right to receive protection in the State party’s territory. The Committee considers that proceedings relating to an alien’s expulsion, the guarantees in regard to which are governed by article 13 of the Covenant, do not also fall within the ambit of a determination of ‘rights and obligations in a suit at law’, within the meaning of article 14, paragraph 1. It concludes that the deportation proceedings of the author do not fall within the scope of article 14, paragraph 1, and are inadmissible ratione materiae pursuant to article 3 of the Optional Protocol.

The decision in PK has been followed in Kaur v Canada (1455/06), Zündel v Canada (134/05), and Chadzian v Netherlands (1494/06). Article 14 rights are far more comprehensive than those in article 13, so these decisions are unfortunate for aliens seeking residency rights. [13.08]

GENERAL COMMENT 32

In this General Comment on article 14, the HRC stated: ¶62. . . . Insofar as domestic law entrusts a judicial body with the task of deciding about expulsions or deportations, the guarantee of equality of all persons before the courts and tribunals as enshrined in article 14, paragraph 1, and the principles of impartiality, fairness and equality of arms implicit in this guarantee are applicable. All relevant guarantees of article 14, however, apply where expulsion takes the form of a penal sanction or where violations of expulsion orders are punished under criminal law.

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421

Therefore, enhanced protections against deportation apply where a State provides for deportation decisions to be made by judicial bodies. Furthermore, full article 14 protections apply if the proposed deportation arises from a criminal process.

Aliens Eligible for Article 13 Protection [13.09]

GENERAL COMMENT 15

¶9. . . . The particular rights of article 13 only protect those aliens who are lawfully in the territory of a State party. This means that national law concerning the requirements for entry and stay must be taken into account in determining the scope of that protection, and that illegal entrants and aliens who have stayed longer than the law or their permits allow, in particular, are not covered by its provisions. However, if the legality of an alien’s entry or stay is in dispute, any decision on this point leading to his expulsion or deportation ought to be taken in accordance with article 13. It is for the competent authorities of the State party, in good faith and in the exercise of their powers, to apply and interpret the domestic law, observing, however, such requirements under the Covenant as equality before the law (article 26).

Article 13 is probably of little use to the many asylum-seekers who are forced to flee their home State suddenly, and traverse State borders without authorization, unless a State recognizes procedural rights for such asylum seekers in its domestic law. Such asylum-seekers may attempt to invoke article 7 to prevent their deportation. Article 7 prohibits expulsion to a State where the person is likely to be tortured or subjected to inhuman or degrading treatment.

Expulsion in Accordance ‘with Law’ [13.10]

MAROUFIDOU v SWEDEN (58/79)

The facts are outlined immediately below: ¶8. The Committee . . . decides to base its views on the following facts which have been essentially confirmed by the State party: Anna Maroufidou, a Greek citizen, who came to Sweden seeking asylum, was granted a residence permit in 1976. Subsequently on 4 April 1977 she was arrested on suspicion of being involved in a plan of a terrorist group to abduct a former member of the Swedish Government. In these circumstances the Central Immigration Authority on 28 April 1977 raised the question of her expulsion from Sweden on the ground that there was good reason to believe that she belonged to, or worked for, a terrorist organization or group, and that there was a danger that she would participate in Sweden in a terrorist act of the kind referred to in sections 20 and 29 of the Aliens Act. A lawyer was appointed to represent her in the proceedings under the Act. On 5 May 1977 the Swedish Government decided to expel her and the decision was immediately executed. . . . ¶9.2. [I]t is not in dispute that when the question of Anna Maroufidou’s expulsion arose in April 1977 she was lawfully resident in Sweden. Nor is there any dispute in this case concerning the due observance by the State of the procedural safeguards laid down in article 13. The only question is whether the expulsion was ‘in accordance with law’.

422

The ICCPR

¶9.3. The reference to ‘law’ in this context is to the domestic law of the State party concerned, which in the present case is Swedish law, though of course the relevant provisions of domestic law must in themselves be compatible with the provisions of the Covenant. Article 13 requires compliance with both the substantive and the procedural requirements of the law. ¶10.1. Anna Maroufidou claims that the decision to expel her was in violation of article 13 of the Covenant because it was not ‘in accordance with law’. In her submission it was based on an incorrect interpretation of the Swedish Aliens Act. The Committee takes the view that the interpretation of domestic law is essentially a matter for the courts and authorities of the State party concerned. It is not within the powers or functions of the Committee to evaluate whether the competent authorities of the State party in question have interpreted and applied the domestic law correctly in the case before it under the Optional Protocol, unless it is established that they have not interpreted and applied it in good faith or that it is evident that there has been an abuse of power. ¶10.2. In the light of all written information made available to it by the individual and the explanations and observations of the State party concerned, the Committee is satisfied that in reaching the decision to expel Anna Maroufidou the Swedish authorities did interpret and apply the relevant provisions of Swedish law in good faith and in a reasonable manner and consequently that the decision was made ‘in accordance with law’ as required by article 13 of the Covenant. ¶11. The Human Rights Committee . . . is therefore of the view that the above facts do not disclose any violation of the Covenant and in particular of article 13.

The Maroufidou decision reflects the HRC’s general unwillingness to overturn municipal court decisions in the absence of clear procedural defects.4 [13.11] The decision also reinforces the procedural nature of article 13. As ‘law’ is interpreted to mean a State’s municipal law, it does not seem to prevent the adoption by the State of a perverse substantive law. The HRC’s narrow interpretation of ‘law’ in the context of article 13 may be compared with its interpretation in later cases of ‘law’ or ‘lawful’ in the context of other ICCPR guarantees.5

Right to be Heard by a Competent Authority [13.12] Article 13 does not specify that a prospective deportee has a right to be heard by a judicial body. States’ practice indicates that administrative procedures are often used to consider immigration appeals matters.6 Furthermore, administrative ‘review’ of the expulsion order in Maroufidou v Sweden (58/79) was held to comply with article 13.

4

See also, in this respect, [1.53] and [14.63]. See [11.91]ff and [16.06]ff. 6 See C Avery, ‘Refugee Status Decision-Making: The System of Ten Countries’ (1983) 19 Stanford Journal of International Law 235; see also D Campbell and J Fisher (eds), International Immigration and Nationality Law (loose-leaf service) (Kluwer Law International, 1999), for an overview of immigration law in a number of States. 5

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GENERAL COMMENT 15

[13.13]

¶10. . . .An alien must be given full facilities for pursuing his remedy against expulsion so that this right will in all the circumstances of his case be an effective one. The principles of article 13 relating to appeal against expulsion and the entitlement to review by a competent authority may only be departed from when ‘compelling reasons of national security’ so require. Discrimination may not be made between different categories of aliens in the application of article 13.

The last sentence of paragraph 10 may again indicate that article 13 prohibits the adoption of substantively discriminatory expulsion laws. However, the sentence may merely confirm that article 13 procedural rights cannot be implemented in a discriminatory manner. [13.14]

HAMMEL v MADAGASCAR (155/83)

In this case, the author was given two hours’ notice of his expulsion: ¶18.2. . . . At that time he was taken under guard to his home where he had two hours to pack his belongings. He was deported on the same evening to France . . . He was not indicted nor brought before a magistrate on any charge; he was not afforded an opportunity to challenge the expulsion order prior to his expulsion.

Hammel’s expulsion was reviewed and upheld four years after his deportation. The HRC confirmed that there was a violation of article 13 in that Hammel had not been ‘allowed to submit the reasons against his expulsion and to have his case reviewed by a competent authority within a reasonable time’.7 The decision does not explicitly clarify whether it is permissible for the opportunity to submit reasons to arise ‘within a reasonable time’ after expulsion. After all, it is possible for a deportee to present reasons against expulsion from abroad. Nevertheless, it does not seem that reviews in absentia conform to the need to provide potential deportees with ‘full facilities for pursuing’ remedies against expulsion, in accordance with paragraph 10 of General Comment 15 [13.13]. [13.15] In Concluding Observations on Austria, the HRC stated:8 ¶18. The Committee notes with concern reports that asylum-seeking women are not automatically interviewed by female asylum officers and assisted by female interpreters and, that children are treated in the same way as adults in the asylum procedure (arts. 3, 13 and 24 (1)). The State party should adopt a gender- and age-sensitive approach to refugee status determination by automatically assigning female interviewers and interpreters to asylum-seeking women and by issuing guidelines for first instance asylum officers on the treatment of separated children. . . .

Right to Review by a Competent Authority [13.16] Paragraph 10 of General Comment 15 [13.13] refers to a prospective deportee’s rights to ‘appeal’ and ‘review’. It is not, however, clear whether this 7 8

At para 20. (2007) CCPR/C/AUT/CO/4.

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The ICCPR

appeal/review relates to consideration of the alien’s arguments against expulsion, or whether the words refer to a subsequent review after an initial decision has taken those arguments into account.9 It is possible that the alien’s right of review simply means a review of the initial expulsion decision, which may have been made without the furnishing of an opportunity for the alien to present counter-arguments. [13.17] In Maroufidou v Sweden (58/79), the author was permitted to submit arguments against her proposed deportation. However, she was deported on the same day as the expulsion was confirmed at first instance. She did not submit an appeal from this initial decision until after her unlawful return to Sweden. The HRC nevertheless found that there was no question that the State Party had complied with the procedural safeguards in article 13 [13.10]. Thus, it seems that an alien’s right of second review, if it does exist, may be implemented after the deportation has been effected.

Rights of Representation [13.18] In Concluding Observations on Denmark, the HRC stated:10 ¶17. The Committee notes that asylum-seekers are entitled to have the assistance of legal counsel. The State party should provide information as to the stages of the application procedures at which legal assistance may be had, and whether the assistance is free of charge at all stages for those who cannot afford it (art. 13).

In Concluding Observations on Switzerland, the HRC stated:11 ¶18. The Committee takes note of the information that asylum-seekers are duly informed of their right to legal assistance and that free legal assistance is provided during the ordinary asylum procedure. It is concerned, however, that free legal assistance may be subject to restrictive conditions when asylum-seekers file an application in the framework of the extraordinary procedure (art. 13). The State party should review its legislation in order to grant free legal assistance to asylum-seekers during all asylum procedures, whether ordinary or extraordinary.

Abrogation of Article 13 Rights ‘where Compelled by Reasons of National Security’ [13.19] Article 13 explicitly permits abrogation of the ‘review’ requirements where ‘reasons of national security’ compel non-compliance with those requirements. National security expulsions must still accord with the State Party’s municipal law. 9 In Truong v Canada (743/97), the HRC was non-committal over whether art 13 guarantees a right of further appeal (para 7.6). M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005) argues that art 13 imports an express right to a subsequent appeal at 297. 10 (2000) UN doc CCPR/CO/70/DNK; see also Concluding Observations on the United Kingdom (1995) UN doc CCPR/C/79/Add.55, para 16. 11 (2009) UN doc CCPR/C/CHE/CO/3.

Procedural Rights Against Expulsion [13.20]

425

VMRB v CANADA (236/87)

In this case, the HRC found that the author, who had been deported, had been on Canadian territory unlawfully, and was therefore ineligible for article 13 protection. It also found that article 13 had in any case been complied with. Of most interest are the following comments: ¶6.3. . . . Furthermore, the State party has pleaded reasons of national security in connection with the proceedings to deport him. It is not for the Committee to test a sovereign State’s evaluation of an alien’s security rating . . .

This phrase was repeated verbatim in JRC v Costa Rica (296/88).12 [13.21] At face value, the VMRB statement regarding State evaluation of the security ratings of aliens seems to render such evaluations non-justiciable under the ICCPR. If so, this could severely undermine the protection offered by article 13. It potentially invites States Parties to defend allegations of article 13 breaches with spurious claims of national security, safe in the knowledge that the HRC will not examine the merits of those claims. Furthermore, it undermines the implication in the word ‘compelling’ that States Parties are required to furnish persuasive evidence of serious national security dangers.13 It must be noted, however, that the States Parties in both VMRB and JRC did provide the HRC with some reasons for their national security assessments. The VMRB statement highlights one of the dilemmas entailed in national security exceptions to human rights. National security assessments are often made by an executive government, with minimal municipal judicial review. If executive governments are unprepared to reveal evidence grounding national security decisions to their own judiciary, they are extremely unlikely to reveal such evidence to an international body such as the HRC. [13.22] The HRC took the opportunity to explain its VMRB statement in Borzov v Estonia (1136/02), a case which was not about article 13. In Borzov, the HRC stated: ¶7.3. While the Committee recognizes that the Covenant explicitly permits, in certain circumstances, considerations of national security to be invoked as a justification for certain actions on the part of a State party, the Committee emphasizes that invocation of national security on the part of a State party does not, ipso facto, remove an issue wholly from the Committee’s scrutiny. Accordingly, the Committee’s decision in the particular circumstances of V.M.R.B. should not be understood as the Committee divesting itself of the jurisdiction to inquire, as appropriate, into the weight to be accorded to an argument of national security. While the Committee cannot leave it to the unfettered discretion of a State party whether reasons related to national security existed in an individual case, it recognizes that its own role in reviewing the existence and relevance of such considerations will depend on the circumstances of the case and the relevant provision of the Covenant. . . .

12

At para 8.4. See S Jagerskiold, ‘Freedom of Movement’, in L Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (Columbia University Press, 1981), 184. 13

426 [13.23]

The ICCPR ALZERY v SWEDEN (1416/05)

This case concerned the expulsion of a suspected terrorist to Egypt, where he was in fact subjected to torture [9.104]. He was therefore expelled as a security risk, and was not given a chance to appeal that decision, or the deportation decision. Regarding his article 13 claim, the HRC stated: ¶11.10. . . . The Committee notes that in the assessment of whether a case presents national security considerations bringing the exception contained in article 13 into play allows the State party very wide discretion. In the present case, the Committee is satisfied that the State party had at least plausible grounds for considering, at the time, the case in question to present national security concerns. In consequence, the Committee does not find a violation of article 13 of the Covenant for the author’s failure to be allowed to submit reasons against his expulsion and have the case reviewed by a competent authority.

The HRC indicates here that States should at least demonstrate that there are ‘plausible grounds’ for exercising the national security exception to article 13. This reasoning, adopted in 2006, preserves the States’ ‘wide discretion’ in this regard but departs from the apparent blanket deference to States over this issue exhibited in the 1988 decision in VMRB. It may also be noted that the lack of an appeal was found to breach article 7 [9.107]. [13.24]

AHANI v CANADA (1051/02)

Ahani was an Iranian citizen who successfully sought refugee status in Canada. However, soon after Canadian authorities determined that he was a national security risk. He was held in detention for nine years, during which time he challenged that assessment, before he was finally deported back to Iran. He argued the deportation breached article 13 in conjunction with article 7, as he claimed he faced torture upon return to Iran. One claim related to the fact that he was not given access to the evidence against him, so he was unable to properly counter it. In this respect, he claimed he was treated differently to the applicant in Suresh v Minister for Citizenship and Immigration,14 a Canadian Supreme Court case. Canada explained that the plaintiff in Suresh has passed the threshold test of the likelihood of torture if returned to Iran, and was therefore entitled to greater procedural rights. The HRC found a violation of article 13 in conjunction with article 7: ¶10.6. Concerning the author’s claims . . . with respect to the subsequent decision of the Minister of Citizenship & Immigration that he could be deported, the Committee notes that the Supreme Court held, in the companion case of Suresh, that the process of the Minister’s determination in that case of whether the affected individual was at risk of substantial harm and should be expelled on national security grounds was faulty for unfairness, as he had not been provided with the full materials on which the Minister based his or her decision and an opportunity to comment in writing thereon and further as the Minister’s decision was not reasoned. The Committee further observes that where one of the highest values protected by the Covenant, namely the right to be free from torture, is at stake, the closest

14

[2002] 1 SCR 3.

Procedural Rights Against Expulsion

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scrutiny should be applied to the fairness of the procedure applied to determine whether an individual is at a substantial risk of torture. . . . ¶10.7. In the Committee’s view, the failure of the State party to provide him, in these circumstances, with the procedural protections deemed necessary in the case of Suresh, on the basis that the present author had not made out a prima facie risk of harm fails to meet the requisite standard of fairness. The Committee observes in this regard that such a denial of these protections on the basis claimed is circuitous in that the author may have been able to make out the necessary level of risk if in fact he had been allowed to submit reasons on the risk of torture faced by him in the event of removal, being able to base himself on the material of the case presented by the administrative authorities against him in order to contest a decision that included the reasons for the Minister’s decision that he could be removed. The Committee emphasizes that, as with the right to life, the right to be free from torture requires not only that the State party not only refrain from torture but take steps of due diligence to avoid a threat to an individual of torture from third parties. ¶10.8. The Committee observes further that article 13 is in principle applicable to the Minister’s decision on risk of harm, being a decision leading to expulsion. Given that the domestic procedure allowed the author to provide (limited) reasons against his expulsion and to receive a degree of review of his case, it would be inappropriate for the Committee to accept that, in the proceedings before it, ‘compelling reasons of national security’ existed to exempt the State party from its obligation under that article to provide the procedural protections in question. In the Committee’s view, the failure of the State party to provide him with the procedural protections afforded to the plaintiff in Suresh on the basis that he had not made out a risk of harm did not satisfy the obligation in article 13 to allow the author to submit reasons against his removal in the light of the administrative authorities’ case against him and to have such complete submissions reviewed by a competent authority, entailing a possibility to comment on the material presented to that authority. The Committee thus finds a violation of article 13 of the Covenant, in conjunction with article 7.

This discrepancy of treatment between Ahani and the plaintiff in Suresh influenced the HRC’s decision of a violation of article 13 in conjunction with article 7. In its own terms, article 13 exempts States from procedural obligations in cases of deportation where there are ‘compelling reasons of national security’. In Ahani, the HRC indicated that Canada’s discretion in this regard had been removed by its own law as expressed in Suresh, and in Ahani’s limited rights of review. It would be unfortunate if this decision prompts States to remove enhanced domestic protections in this regard, so that they can take advantage of the apparent latitude given them under article 13. Of course, such latitude does not exist under article 7. It is possible that the motivating factor behind the HRC’s decision lay in the absoluteness of the article 7 guarantee, rather than in the inapplicability of the Suresh rules to Ahani. [13.25]

GIRY v DOMINICAN REPUBLIC (193/85)

The author presented the facts as follows, and argued, inter alia, that they gave rise to a violation of article 13: ¶3.1. According to the author, he arrived in the Dominican Republic on 2 February 1985, stayed there for two days and then, on 4 February, went to the airport to buy a ticket in order to leave the country on a flight to Saint-Barthelemy. Two agents in uniform, either belonging

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to the Dominican police or to the customs service, took him to the police office at the airport, where he was subjected to a thorough search. After two hours and forty minutes he was taken out by a back door leading directly to the runway and made to board an Eastern Airlines plane bound for Puerto Rico. Upon his arrival in Puerto Rico he was arrested and charged with conspiracy and attempt to smuggle drugs into the United States. ¶3.2. The author was tried before the United States District Court in San Juan, Puerto Rico and convicted of the offences of conspiracy to import cocaine into the United States, and of the use of a communication facility, the telephone, to commit the crime of conspiracy. ¶3.3. On 30 April 1986 he was sentenced to 28 years of imprisonment and fined $250,000. He is serving his term of imprisonment at the Federal Correctional Institution at Ray Brook, New York.

The State Party did not dispute the author’s version of the facts. It offered the following defence to the allegations regarding article 13: ¶4.3. With respect to the alleged violation of article 13 of the Covenant, the State party contends that there is no violation and invokes that part of the provision that permits summary expulsions where compelling reasons of national security require. It is stated that Mr Giry constituted a national security danger for the Dominican Republic, which, as any sovereign State, is entitled to take the necessary steps to protect national security, public order, and public health and morals. ¶4.4. The State party further argues that its actions must be understood in the context of the international efforts to apprehend persons involved in the illegal traffic of drugs, which must be seen as a universal crime subject to universal jurisdiction.

The HRC majority found in favour of the author with regard to article 13: ¶5.5. . . . The Committee notes that, while the State party has specifically invoked the exception based on reasons of national security for the decision to force him to board a plane destined for the jurisdiction of the United States of America, it was the author’s very intention to leave the Dominican Republic at his own volition for another destination. In spite of several invitations to do so, the State party has not furnished the text of the decision to remove the author from Dominican territory or shown that the decision to do so was reached ‘in accordance with law’ as required under article 13 of the Covenant. Furthermore, it is evident that the author was not afforded an opportunity, in the circumstances of the extradition, to submit the reasons against his expulsion or to have his case reviewed by the competent authority. While finding the violation of the provision of article 13 in the specific circumstances of Mr Giry’s case, the Committee stresses that States are fully entitled vigorously to protect their territory against the menace of drug dealing by entering into extradition treaties with other States. But practice under such treaties must comply with article 13 of the Covenant, as indeed would have been the case, had the relevant Dominican law been applied in the present case.

Giry appears to manifest a more vigorous approach by the HRC to supervision of national security claims under article 13 than indicated in VMRB or even the later case of Alzery. However, the facts of Giry indicated that it was objectively disingenuous to claim that the author was expelled for compelling reasons of national security. Furthermore, no specific national security ‘law’ was cited as domestic authority for the extradition.

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Conclusion [13.26] Article 13 does not provide aliens with a guarantee against expulsion. Indeed, its procedural nature may mean that it is not even a comprehensive guarantee against arbitrary expulsion. Nevertheless, certain HRC statements have arguably incorporated some sort of substantive element into article 13. In any case arbitrary expulsion is probably prohibited under other ICCPR guarantees. The extent of article 13 procedural rights regarding the number of ‘reviews’ an alien is entitled to is uncertain. Finally, the HRC has confirmed that it will pay differing levels of deference to States’ national security ratings of aliens depending on the facts of a case.

14 Right to a Fair Trial—Article 14 • Article 14(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [14.06] • ‘Suit at Law’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [14.07] • Equality Before the Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [14.21] • Access to Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [14.29] • Requisite Characteristics of Tribunals . . . . . . . . . . . . . . . . . . . . . . . . [14.48] • Military Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [14.55] • Elements of a Fair Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [14.60] • Expeditious Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [14.90] • Public Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [14.97] • Article 14(2)—The Presumption of Innocence . . . . . . . . . . . . . . . . . . [14.105] • Article 14(3)(a)—The Right to be Informed of the Charge . . . . . . . . [14.113] • Article 14(3)(b)—Preparation of the Defence. . . . . . . . . . . . . . . . . . . [14.116] • What is ‘Adequate Time’? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [14.118] • What are ‘Adequate Facilities’? . . . . . . . . . . . . . . . . . . . . . . . . . . . [14.122] • Right to Communicate with Counsel of One’s Own Choosing . . . . [14.126] • Article 14(3)(c)—Trial without Undue Delay . . . . . . . . . . . . . . . . . . . [14.129] • Article 14(3)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [14.141] • Trial in One’s Own Presence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [14.141] • Right to Counsel of One’s Own Choice. . . . . . . . . . . . . . . . . . . . . . [14.145] • Rights to Legal Aid for Defendants with Insufficient Means to Pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [14.152] • Guarantee of Competent Representation . . . . . . . . . . . . . . . . . . . . . [14.161] • Article 14(3)(e)—Rights Regarding Witness Attendance and Examination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [14.169] • Article 14(3)(f)—Right to Free Assistance of an Interpreter if Needed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [14.177] • Article 14(3)(g)—Freedom from Compulsory Self-incrimination . . . [14.179] • Article 14(4)—Rights of a Juvenile Accused . . . . . . . . . . . . . . . . . . . [14.183] • Article 14(5)—Right to an Appeal in Criminal Cases . . . . . . . . . . . . [14.187] • Article 14(6)—Right to Compensation for Miscarriage of Justice . . . [14.204] • Article 14(7)—Freedom from Double Jeopardy . . . . . . . . . . . . . . . . . [14.210] • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [14.216]

ARTICLE 14 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would

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prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

[14.01] The right to a fair trial and equality before the courts have historically been regarded as fundamental rules of law. Article 14 of the ICCPR sets out a series of rights which are required in both civil and criminal proceedings. The aim of the provisions is to ensure the proper administration of justice.1 1

General Comment 13, para 1.

432 [14.02]

The ICCPR GENERAL COMMENT 32

¶4. Article 14 contains guarantees that States parties must respect, regardless of their legal traditions and their domestic law. While they should report on how these guarantees are interpreted in relation to their respective legal systems, the Committee notes that it cannot be left to the sole discretion of domestic law to determine the essential content of Covenant guarantees. . . .

Unsurprisingly, there is no right to a jury trial in article 14, given that juries are not a feature of many legal systems.2 [14.03] Article 14(1) outlines the general guarantee, whereas article 14(2) to (7) sets out specific guarantees in relation to criminal trials and criminal appeals.3 GENERAL COMMENT 32 The notion of a ‘criminal charge’ is defined as so: ¶15. . . . Criminal charges relate in principle to acts declared to be punishable under domestic criminal law. The notion may also extend to acts that are criminal in nature with sanctions that, regardless of their qualification in domestic law, must be regarded as penal because of their purpose, character or severity.

[14.04]

OSIYUK v BELARUS (1311/04)

The author entered Belarus illegally from the Ukraine to visit relatives. He claimed he did so unintentionally as there was no clear border in the area. He was charged with administrative and customs offences. On one charge he was fined 14,000 roubles and on another 700,000 roubles. He claimed that various of his rights within article 14(3) were violated. These rights only apply if the charges were criminal charges. Under State law, the offences were classified as administrative rather than criminal. The Human Rights Committee (HRC) found that they were in effect criminal charges: ¶7.3. With regard to the author’s claim that his rights under article 14 of the Covenant were violated, the Committee recalls that the right to a fair and public hearing by a competent, independent and impartial tribunal is guaranteed in cases regarding the determination of criminal charges against individuals or of their rights and obligations in a suit at law. It recalls that criminal charges relate in principle to acts declared to be punishable under domestic criminal law. The notion, however, may also extend to acts that are criminal in nature with sanctions that, regardless of their qualification in domestic law, must be regarded as penal because of their purpose, character or severity. In this respect, the Committee notes that the concept of a ‘criminal charge’ bears an autonomous meaning, independent of the categorisations employed by the national legal system of the States parties, and has to be understood within the meaning of the Covenant. Leaving State parties the discretion to transfer the decision over a criminal offence, including imposition of punishment, to administrative authorities and, Weerawansa v Sri Lanka (1406/05), para 6.4. In Gerardus Strik v Netherlands (1001/01), the HRC confirmed that the provisions of art 14(2)–(7), as well as art 15, do not apply to employment disciplinary measures; they apply only to criminal charges (para 7.3). 2 3

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thus, to avoid the application of the fair trial guarantees under article 14, might lead to results incompatible with the object and purpose of the Covenant. ¶7.4. The issue before the Committee is, therefore, whether article 14 of the Covenant is applicable in the present communication, that is, whether the sanctions in the author’s case related to the unlawful crossing of the national frontier and to the movement of means of transport across the customs frontier concerned ‘any criminal charge’ within the meaning of the Covenant. As to the conditions of ‘purpose and character’ of the sanctions, the Committee notes that, although administrative according to the State party’s law, the sanctions imposed on the author had the aims of repressing, through penalties, offences alleged against him and of serving as a deterrent for the others, the objectives analogous to the general goal of the criminal law. It further notes that the rules of law infringed by the author are directed, not towards a given group possessing a special status—in the manner, for example, of disciplinary law—but towards everyone in his or her capacity as individuals crossing the national frontier of Belarus; they prescribe conduct of a certain kind and make the resultant requirement subject to a sanction that is punitive. Therefore, the general character of the rules and the purpose of the penalty, being both deterrent and punitive, suffice to show that the offences in question were, in terms of article 14 of the Covenant, criminal in nature. ¶7.5. Consequently, the Committee declares the communication admissible ratione materiae, insofar as the proceedings related to the movement of means of transport across the customs frontier, fall within the ambit of ‘the determination’ of a ‘criminal charge’ under article 14, paragraph 1, of the Covenant. It therefore follows that the provisions of article 14, paragraphs 2 to 7, also apply in the present communication.

[14.05]

SAYADI and VINCK v BELGIUM (1472/06)

The authors’ names were transmitted by the State party to the UN Security Council, and their names were duly placed on the UN Sanctions list, which dictated that they be subject to travel bans and asset freezes. They claimed that the State’s actions, which resulted in the sanctions against them, breached their rights under articles 14(3) and 15 (which is also limited to criminal matters [15.03]). The HRC decided against them on this point: ¶10.11. . . . The Committee also takes note of the State party’s arguments that the sanctions cannot be characterized as ‘criminal’, since the assets freeze was not a penalty imposed in connection with a criminal procedure or conviction. . . . Moreover, the State party maintains that placement on the list was a preventive rather than a punitive measure, as was apparent from the fact that the persons affected could obtain authorization for an exemption from the freeze on their assets and from the travel ban. . . . The Committee recalls that its interpretation of the Covenant is based on the principle that the terms and concepts in the Covenant are independent of any national system or legislation and that it must regard them as having an autonomous meaning in terms of the Covenant. Although the sanctions regime has serious consequences for the individuals concerned, which could indicate that it is punitive in nature, the Committee considers that this regime does not concern a ‘criminal charge’ in the meaning of article 14, paragraph 1. The Committee therefore finds that the facts do not disclose a violation of article 14, paragraph 3, article 14, paragraph 2, or article 15 of the Covenant.

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Article 14(1) [14.06] The guarantees outlined in article 14(1) apply to all stages of the proceedings in all courts, civil and criminal. They also supplement the article 14(3) requirements by acting as a residual guarantee.4 ‘SUIT AT LAW’

[14.07]

GENERAL COMMENT 32

¶16. The concept of determination of rights and obligations ‘in a suit at law’ (de caractère civil/de carácter civil) is more complex. It is formulated differently in the various languages of the Covenant that, according to article 53 of the Covenant, are equally authentic, and the travaux préparatoires do not resolve the discrepancies in the various language texts. The Committee notes that the concept of a ‘suit at law’ or its equivalents in other language texts is based on the nature of the right in question rather than on the status of one of the parties or the particular forum provided by domestic legal systems for the determination of particular rights. The concept encompasses (a) judicial procedures aimed at determining rights and obligations pertaining to the areas of contract, property and torts in the area of private law, as well as (b) equivalent notions in the area of administrative law such as the termination of employment of civil servants for other than disciplinary reasons, the determination of social security benefits or the pension rights of soldiers, or procedures regarding the use of public land or the taking of private property. In addition, it may (c) cover other procedures which, however, must be assessed on a case by case basis in the light of the nature of the right in question. . . .

[14.08] Article 14(1) guarantees various rights with regard to determinations of one’s rights and obligations in criminal prosecutions, as well as in ‘suits at law’. The meaning of the latter term is very important, as it is the only element of article 14 which specifically addresses non-criminal proceedings. The definition of ‘suits at law’ arose in the following case. [14.09]

YL v CANADA (112/81)

In this case the Committee dealt with the question whether the claim by a former member of the Army for a disability pension was a ‘suit at law’. YL was dismissed from the Canadian army owing to an alleged medical condition. YL’s application for a disability pension was rejected by a Pension Commission. This decision was confirmed on appeal, and two subsequent applications to the Pension Commission were rejected. The applicant’s application to the Entitlement Board of the Commission was also unsuccessful, and his appeal to the Pension Review Board confirmed the earlier rulings. The author argued that the proceedings had been conducted unfairly, in breach of article 14(1).

4 D McGoldrick, The Human Rights Committee (Clarendon Press, 1994), 417. See eg Maleki v Italy (699/96) [14.143], where a breach of art 14(1) was found even though a reservation had been entered to the relevant guarantee in art 14(3).

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435

The State Party argued that the complaint should be declared inadmissible for the following reasons: ¶4. The Canadian Government requests that the communication be declared inadmissible. As far as the proceedings before the Pension Review Board are concerned, it contends primarily that the complaints of the author are outside the scope of application of the Covenant ratione materiae because those proceedings did not constitute a ‘suit at law’ as envisaged under article 14, paragraph 1, of the Covenant. . . .

The HRC ultimately found that the author’s communication was inadmissible, as the availability of judicial review of the Pension Board’s decision meant that he had no claim under article 2 of the Optional Protocol (OP).5 In relation to the expression ‘suit at law’ the Committee made the following comments: ¶9.1. With regard to the alleged violation of the guarantees of ‘a fair and public hearing by a competent, independent and impartial tribunal established by law’, contained in article 14, paragraph 1, of the Covenant, it is correct to state that those guarantees are limited to criminal proceedings and to any ‘suit at law’. The latter expression is formulated differently in the various language texts of the Covenant and each and every one of those texts is, under article 53, equally authentic. ¶9.2. The travaux préparatoires do not resolve the apparent discrepancy in the various language texts. In the view of the Committee, the concept of a ‘suit at law’ or its equivalent in the other language texts is based on the nature of the right in question rather than on the status of one of the parties (governmental, parastatal or autonomous statutory entities), or else on the particular forum in which individual legal systems may provide that the right in question is to be adjudicated upon, especially in common law systems where there is no inherent difference between public law and private law, and where the courts normally exercise control over the proceedings either at first instance or on appeal specifically provided by statute or else by way of judicial review. In this regard, each communication must be examined in the light of its particular features. ¶9.3. In the present communication, the right to a fair hearing in relation to the claim for a pension by the author must be looked at globally, irrespective of the different steps which the author had to take in order to have his claim for a pension finally adjudicated.

[14.10] In an individual opinion, Messrs Graefrath, Pocar, and Tomuschat took the position that the impugned proceedings did not constitute a ‘suit at law’: ¶3. [T]he dispute between the author and Canada does not come within the purview of article 14, paragraph 1, of the Covenant. The guarantees therein contained apply to the determination both of any criminal charge and of rights and obligations in a suit at law. Whereas this phrase in its English and Russian versions refers to proceedings, the French and the Spanish texts rely on the nature of the right or obligation which constitutes the subject-matter of the proceedings concerned. In the circumstances of the present case, there is no need to clarify the common meaning to be given to the different terms used in the various languages which, under article 53 of the Covenant, are equally authentic. It is quite clear from the submissions of both the State party and the author that in Canada the relationship between a soldier, whether in active service or retired, and the Crown has 5 At para 9.4. Such availability would also raise issues regarding the exhaustion of domestic remedies (see, generally, Ch 6).

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many specific features, differing essentially from a labour contract under Canadian law. In addition, it has emerged that the Pension Review Board is an administrative body functioning within the executive branch of the Government of Canada, lacking the quality of a court. Thus, in the present case, neither of the two criteria which would appear to determine conjunctively the scope of article 14, paragraph 1, of the Covenant is met. It must be concluded, therefore, that proceedings before the Pension Review Board, initiated with a view to claiming pension rights, cannot be challenged by contending that the requirements of a fair hearing as laid down in article 14, paragraph 1, of the Covenant have been violated.

[14.11] The minority view gives a much narrower scope to article 14(1) by focusing on the internal Canadian classification of the claim. In contrast, the majority, which certainly hinted that the Pension Board proceedings concerned a ‘suit at law’, focused on the nature of the right and whether the claim was of a kind subject to judicial supervision and control.6 The majority view is to be preferred, as it prevents dilution of article 14(1) rights by perverse internal classifications. [14.12]

CASANOVAS v FRANCE (441/90)

This case concerned the author’s challenge, via administrative tribunals, to his dismissal from the French civil service. ¶5.2. The Committee recalled that the concept of ‘suit at law’ under article 14, paragraph 1, was based on the nature of the right in question rather than on the status of one of the parties. The Committee considered that a procedure concerning a dismissal from employment constituted the determination of rights and obligations in a suit at law, within the meaning of article 14, paragraph 1, of the Covenant. Accordingly, on 7 July 1993, the Committee declared the communication admissible.

[14.13]

PERTERER v AUSTRIA (1015/01)

This case concerned disciplinary proceedings concerning alleged professional misconduct by the author, a civil servant. The author claimed violations of article 14(1). In order for the provision to apply, the proceedings had to be classified as ‘a suit at law’. The HRC did so: ¶9.2. With regard to the State party’s objection ratione materiae, the Committee recalls that the concept of a ‘suit at law’ under article 14, paragraph 1, is based on the nature of the right in question rather than on the status of one of the parties. The imposition of disciplinary measures taken against civil servants does not of itself necessarily constitute a determination of one’s rights and obligations in a suit at law, nor does it, except in cases of sanctions that, regardless of their qualification in domestic law, are penal in nature, amount to a determination of a criminal charge within the meaning of the second sentence of article 14, paragraph 1. In the present case, the State party has conceded that the trial senate of the Disciplinary Commission was a tribunal within the meaning of article 14, paragraph 1, of the Covenant. While the decision on a disciplinary dismissal does not need to be determined by a court or tribunal, the Committee considers that whenever, as in the present case, a judicial body is entrusted with the task of deciding on the imposition of disciplinary measures, it must respect the guarantee of equality of all persons before the courts and 6

McGoldrick, The Human Rights Committee, 415.

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tribunals as enshrined in article 14, paragraph 1, and the principles of impartiality, fairness and equality of arms implicit in this guarantee. Consequently, the Committee declares the communication admissible ratione materiae insofar as the author claims to be a victim of violations of his rights under article 14, paragraph 1, of the Covenant.

Hence, article 14(1) applied as the proceedings were in fact conducted before a judicial body. This case indicates that proceedings will come within article 14, regardless of their subject matter, if those proceedings take place before a judicial body. That is, certain proceedings may fall outside article 14(1) if they are conducted before non-judicial bodies. However, if proceedings are conducted before judicial bodies, presumably due to domestic law requirements, article 14(1) applies. Similar decisions were made in Sankara et al v Burkina Faso (1159/03) (concerning a decision on whether a public inquiry into a death would take place),7 Bandaranayake v Sri Lanka (1376/05) (disciplinary proceedings concerning a judge),8 Lederbauer v Austria (1454/06),9 and Gonzalez v Guyana (1246/04) (citizenship application).10 [14.14] In Garcia Pons v Spain (454/91), the HRC found a complaint about an alleged breach of article 14(1) in proceedings concerning the determination of social security benefits to be admissible. Though no violation was found on the merits, it is clear that such proceedings, which had been conducted before a court, constituted ‘suits at law’. In Jansen-Gielen v Netherlands (846/99), the HRC evidently found that tribunal proceedings to determine the psychiatric ability of people to perform their jobs amounted to suits at law, as a violation of article 14(1) was found [14.77]. In Deisl v Austria (1060/02), the HRC found that ‘the proceedings concerning the authors’ request for an exemption from the zoning regulations, as well as the orders to demolish their buildings, relate to the determination of their rights and obligations in a suit at law, in particular their right to freedom from unlawful interference with their privacy and home, their rights and interests relating to their property, and their obligation to comply with the demolition orders’.11 Article 14(1) was therefore applicable to those proceedings. [14.15]

KOLANOWSKI v POLAND (837/98)

The author was a police officer who applied unsuccessfully for a promotion. As he was denied an appeal with regard to that rejection, he claimed a breach of article 14(1). The HRC found that the provision did not apply: ¶6.4. As to the author’s claims under article 14, paragraph 1, the Committee notes that they relate to the author’s efforts to contest a negative decision on his request to be promoted to a higher rank. The author was neither dismissed nor did he apply for any specific vacant post of higher rank. In these circumstances the Committee considers that the author’s case must be distinguished from Casanovas v France . . . Reiterating its view that the concept of ‘suit at law’ under article 14, paragraph 1, is based on the nature of the right in question rather than on the status of one of the parties, the Committee considers that the procedures 7

At para 12.4. At para 7.1. 11 At para 11.1. 9

8 10

At para 6.5. At para 13.4.

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initiated by the author to contest a negative decision on his request to be promoted within the Polish police did not constitute the determination of rights and obligations in a suit at law, within the meaning of article 14, paragraph 1, of the Covenant. Consequently, this part of the communication is incompatible with that provision, and inadmissible under article 3 of the Optional Protocol.

[14.16] Thus, the HRC distinguished between rights claimed regarding appointments and/or promotions within the public service from rights regarding dismissals from the public service, which attracted article 14(1) protection in Casanovas [14.12], and also Pastukhov v Belarus (814/98) (concerning the dismissal of a judge). In Kazantzis v Cyprus (972/01), the HRC again found that a procedure for appointing public service positions (judicial appointments in that case) did not ‘come within the purview of a determination of rights and obligations in a suit at law’.12 Similar decisions were reached in Fernández v Spain (1396/05),13 Karatsis v Cyprus (1182/03),14 Dimitrov v Bulgaria (1030/01),15 and Kibale v Canada (1562/07). In the latter case, the HRC stated: ¶6.5. . . . [T]he Committee considers that article 14 does not apply where domestic law does not grant any entitlement to the person concerned. In the present case, the applicable domestic law does not confer any right upon the person concerned to an appointment in the public service. The Committee is therefore of the view that the procedures undertaken by the author to contest the decisions refusing his applications for positions in the public service do not constitute determinations of his rights and obligations in a suit at law within the meaning of article 14, paragraph 1, of the Covenant. . . .

[14.17]

ZÜNDEL v CANADA (1341/05)

The HRC decided in this case that proceedings to stave off deportations and extraditions are not ‘suits at law’ within article 14: ¶6.8. The Committee recalls, in addition, that the concept of a ‘suit at law’ under article 14, paragraph 1, of the Covenant is based on the nature of the right in question rather than on the status of one of the parties. In the present case, the proceedings relate to the right of the author, who was a lawful permanent resident, to continue residing in the State party’s territory. The Committee considers that proceedings relating to an alien’s expulsion, the guarantees of which are governed by article 13 of the Covenant, do not also fall within the ambit of a determination of ‘rights and obligations in a suit at law’, within the meaning of article 14, paragraph 1. It concludes that the deportation proceedings of the author, who was found to represent a threat to national security, do not fall within the scope of article 14, paragraph 1, and are inadmissible ratione materiae, pursuant to article 3 of the Optional Protocol.

It is not clear whether the reasoning is based on a determination that such proceedings simply fall outside the definition of a ‘suit at law’, or whether such proceedings are covered by article 13 as lex specialis [13.07]. The Zündel decision has been

12 At para 6.5. Rights regarding appointment and promotion are relevant in the context of art 26 and, with regard to the public service, art 25(c). 13 14 At para 6.3. At para 6.4. 15 At para 8.3.

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followed in PK v Canada (1234/03), Chadzjian v Netherlands (1494/06), and Kaur v Canada (1455/06). [14.18]

GENERAL COMMENT 32

¶62. Insofar as domestic law entrusts a judicial body with the task of deciding about expulsions or deportations, the guarantee of equality of all persons before the courts and tribunals as enshrined in article 14, paragraph 1, and the principles of impartiality, fairness and equality of arms implicit in this guarantee are applicable. All relevant guarantees of article 14, however, apply where expulsion takes the form of a penal sanction or where violations of expulsion orders are punished under criminal law.

Therefore, enhanced procedural protections against deportation seem to apply where a State provides for deportation decisions to be made by judicial bodies.16 Furthermore, full article 14 protections apply if the proposed deportation is a penalty arising from a criminal process. [14.19] The cases do not provide clear guidance as to the definition of a ‘suit at law’. Harris persuasively argues that a ‘suit at law’ includes consideration of the nature of the right at issue, which brings private law rights (such as those in tort and contract) within the definition. However, determination of public law rights comes within article 14(1) if, within the relevant municipal legal system, such determination is conducted by a court of law, or if administrative determination of such rights is subject to judicial review. However, article 14(1) does not appear to guarantee a right of judicial review of public law determinations by administrators or administrative tribunals, nor does it guarantee that any such review entails evaluation of the merits of a decision.17 [14.20] In Kennedy v Trinidad and Tobago (845/98),18 Evans v Trinidad and Tobago (908/00),19 and Reece v Jamaica (796/98)20 the HRC confirmed that the consideration by an executive body of the possibility of commutation of a death sentence is not a ‘suit at law’ that attracts article 14 rights. The same decision was made with regard to a petition for mercy outside the realm of capital punishment in Minogue v Australia (954/00). EQUALITY BEFORE THE COURTS

[14.21] Article 14(1) expressly guarantees equality before the courts, meaning that the law should be applied without discrimination by the judiciary.21 This right is narrower than a similar right of equality before the law in article 26.22 The latter 16 17

See eg Everett v Spain (961/00), para 6.4. See D Harris, Cases and Materials on International Law (5th edn, Sweet & Maxwell, 1998),

672. 18

19 At para 7.4. At para 6.6. At para 7.7; see also [11.19]. 21 M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005), 308. See also Fei v Colombia (514/92). 22 See, generally, [23.120]ff. 20

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right applies to all organs involved in the administration of justice, including prosecutors and police, whereas article 14 specifically concerns fairness in the application of judicial power by judicial officers, and in procedures before courts. [14.22]

GENERAL COMMENT 32

¶13. The right to equality before courts and tribunals also ensures equality of arms. This means that the same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant. There is no equality of arms if, for instance, only the prosecutor, but not the defendant, is allowed to appeal a certain decision. The principle of equality between parties applies also to civil proceedings, and demands, inter alia, that each side be given the opportunity to contest all the arguments and evidence adduced by the other party. In exceptional cases, it also might require that the free assistance of an interpreter be provided where otherwise an indigent party could not participate in the proceedings on equal terms or witnesses produced by it be examined.

[14.23]

DUDKO v AUSTRALIA (1347/05)

The article 14(1) claim concerned the conduct of a criminal appeal in the State’s highest court. The HRC found a breach: ¶7.2. In regard to the author’s claim of a right to be present at the High Court proceedings, the Committee notes its previous jurisprudence that the disposition of an appeal does not necessarily require an oral hearing [14.191]. The Committee also notes that the defendant had the opportunity to submit written papers to the High Court, acting pro se, and that she failed to appeal her denial of legal aid before the Legal Aid Review Committee. ¶7.3. However, the High Court did choose to conduct an oral hearing in its consideration of the author’s application for leave to appeal. A solicitor representing the Director of Public Prosecutions was present and presented arguments at that oral hearing. A question of fact was put by the court to the solicitor for the Director of Public Prosecutions, and the author had no opportunity, either in person or through counsel, to comment on that question. One member of the High Court noted that there was no apparent reason why a defendant held in custody could not, at a minimum, be enabled to take part in the hearing by means of a telecommunications link, at least where he or she did not otherwise enjoy any representation. The same judge noted that a right to attend appellate hearings is already the practice in several jurisdictions of the State party. The State party offered no explanation, other than to say it was not the practice in New South Wales. ¶7.4. The Committee observes that when a defendant is not given an opportunity equal to that of the State party in the adjudication of a hearing bearing on the determination of a criminal charge, the principles of fairness and equality are engaged. It is for the State party to show that any procedural inequality was based on reasonable and objective grounds, not entailing actual disadvantage or other unfairness to the author. In the present case, the State party has offered no reason, nor does the file reveal any plausible reason, why it would be permissible to have counsel for the State take part in the hearing in the absence of the unrepresented defendant, or why an unrepresented defendant in detention should be treated more unfavourably than unrepresented defendant not in detention who can participate in the proceedings. Accordingly, the Committee concludes that a violation of the guarantee

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of equality before the courts in article 14, paragraph 1, occurred in the circumstances of the case.

[14.24]

LNP v ARGENTINA (1610/07)

This case concerned the insensitive treatment of a young indigenous girl who alleged that she had been raped [9.60]. The trial, at which the accused were acquitted, was found to breach her rights under article 14(1):23 ¶13.5. The Committee takes note of the author’s affirmation to the effect that, since she was not informed of her right to act as plaintiff under the provincial legislation in force, she was unable to participate as a party to the court proceedings and that, as a consequence, she was not notified of the acquittal. The author further alleges that several irregularities occurred during the trial of the three accused. In particular, according to the author, the proceedings were held entirely in Spanish, without interpretation, despite the fact that both she and other witnesses had difficulty communicating in that language. In view of the failure by the State to respond to those allegations, the Committee finds that the author’s right to enjoy access to the courts in conditions of equality, as recognized in article 14, paragraph 1, was violated.

It is interesting that a violation of her rights was found, given she was not officially a party to the proceedings, as she was not the accused person.24 [14.25]

GENERAL COMMENT 32

¶14. Equality before courts and tribunals also requires that similar cases are dealt with in similar proceedings. If, for example, exceptional criminal procedures or specially constituted courts or tribunals apply in the determination of certain categories of cases, objective and reasonable grounds must be provided to justify the distinction.

[14.26]

KAVANAGH v IRELAND (819/98)

This case concerned the use of a Special Criminal Court, with different procedures from ordinary Irish criminal courts (eg no juries), to try the author for various offences. The majority found a breach of article 26 and did not therefore decide whether a breach of article 14(1) had arisen [23.124]. A minority, consisting of Messrs Henkin, Lallah, Tawfik Khalil, and Vella, and Mrs Medina Quiroga, also found a breach of article 14(1): ¶2. Article 14, paragraph 1, of the Covenant, in its very first sentence, entrenches the principle of equality in the judicial system itself. That principle goes beyond and is additional to the principles consecrated in the other paragraphs of article 14 governing the fairness of trials, proof of guilt, procedural and evidential safeguards, rights of appeal and review and, finally, the prohibition against double jeopardy. That principle of equality is violated where all persons accused of committing the very same offence are not tried by the normal courts having jurisdiction in the matter, but are tried by a special court at the discretion of the Executive. This remains so whether the exercise of discretion by the Executive is or is not reviewable by the courts. 23 24

See also RKB v Turkey (CEDAW 28/10). See also Vertido v Philippines (CEDAW 18/08).

The ICCPR

442

Similarly, in Concluding Observations on the United Kingdom, the HRC stated ‘that objective and reasonable grounds [must] be provided by the appropriate prosecution authorities to justify the application of different criminal procedure in particular cases’.25 [14.27] A breach of the right to equality before the courts was found in Weiss v Austria (1086/02), in circumstances where a prosecutor was able to appeal a municipal decision, while the relevant defendant was not.26 [14.28] In Concluding Observations on Zambia, the HRC stated:27 ¶10. Section 43 of the Constitution, which restricts the right of individuals to pursue civil remedies against the President in the courts for anything done in his private capacity, is incompatible with the provisions of Article 14 of the Covenant.

Thus, it is incompatible with article 14 for persons to be vested with total immunity from suit. It is uncertain whether qualified immunities, such as Presidential immunity for executive acts, are compatible with article 14(1). ACCESS TO COURTS

[14.29]

GENERAL COMMENT 32

¶9. Article 14 encompasses the right of access to the courts in cases of determination of criminal charges and rights and obligations in a suit at law. Access to administration of justice must effectively be guaranteed in all such cases to ensure that no individual is deprived, in procedural terms, of his/her right to claim justice. The right of access to courts and tribunals and equality before them is not limited to citizens of States parties, but must also be available to all individuals, regardless of nationality or statelessness, or whatever their status, whether asylum seekers, refugees, migrant workers, unaccompanied children or other persons, who may find themselves in the territory or subject to the jurisdiction of the State party. A situation in which an individual’s attempts to access the competent courts or tribunals are systematically frustrated de jure or de facto runs counter to the guarantee of article 14, paragraph 1, first sentence. This guarantee also prohibits any distinctions regarding access to courts and tribunals that are not based on law and cannot be justified on objective and reasonable grounds. The guarantee is violated if certain persons are barred from bringing suit against any other persons such as by reason of their race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

[14.30]

BAHAMONDE v EQUATORIAL GUINEA (468/91)

¶9.4. The author has contended that despite several attempts to obtain judicial redress before the courts of Equatorial Guinea, all of his démarches have been unsuccessful. . . . The Committee observes that the notion of equality before the courts and tribunals encompasses the very access to the courts and that a situation in which an individual’s attempts 25 (2001) UN doc CCPR/CO/73/UK, para 18; see also Ireland (2008) UN doc CCPR/C/IRL/CO/3, para 20; United Kingdom (2008) UN doc CCPR/C/GBR/CO/6, para 18 [23.124]. See also Manzano v Colombia (1616/07). 26 27 At para 9.6. (1996) UN doc CCPR/C/79/Add.62.

Right to a Fair Trial

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to seize the competent jurisdictions of his/her grievances are systematically frustrated runs counter to the guarantees of article 14, paragraph 1. . . .

[14.31]

SANKARA et al v BURKINA FASO (1159/03)

The family of the deceased President of Burkina Faso sought redress over the death, partly in the form of an official inquiry into the death. Their request for a public inquiry was dismissed by the Supreme Court, leaving their only option for domestic redress as the State’s military courts. However, military proceedings could not commence without the assistance of State authorities. The absence of such assistance breached article 14(1): ¶12.6. The Committee notes that after the Supreme Court adopted decision No. 46 of 19 June 2001, confirming decision No. 14 in which the Appeal Court declared the ordinary courts incompetent, the relevant authorities refused or omitted to refer the case to the Minister of Defence so that proceedings could be instituted in the military courts in accordance with article 71 (1) and (3) of the Code of Military Justice. The Committee also refers to its deliberations on admissibility and the conclusion it reached that the Procurator wrongly halted the proceedings instituted by the authors and in addition failed to respond to their appeal of 25 July 2001. Lastly, the Committee notes that after the ordinary courts were declared incompetent, almost five years passed, but no judicial proceedings were instituted by the Minister of Defence. The State party was unable to explain these delays, and on this point the Committee considers that, contrary to the State party’s arguments, no time bar could invalidate proceedings in a military court, and consequently the failure to refer the matter to the Minister of Defence should be attributed to the Procurator, who alone had the power to do so. The Committee considers that this inaction since 2001, despite the various remedies sought subsequently by the authors, constitutes a violation of the obligation to respect the guarantee of equality of all persons before the courts and tribunals as enshrined in article 14, paragraph 1, and the principles of impartiality, fairness and equality of arms implicit in this guarantee.

[14.32] In Avellanal v Peru (202/86), an obvious violation of article 14(1) was entailed in a Peruvian law which precluded access to court for married women in respect of suits regarding matrimonial property. This law also violated the article 14(1) requirement that all persons be equal before courts and tribunals.28 [14.33]

GENERAL COMMENT 32

¶10. The availability or absence of legal assistance often determines whether or not a person can access the relevant proceedings or participate in them in a meaningful way. While article 14 explicitly addresses the guarantee of legal assistance in criminal proceedings in paragraph 3 (d), States are encouraged to provide free legal aid in other cases, for individuals who do not have sufficient means to pay for it. In some cases, they may even be obliged to do so. For instance, where a person sentenced to death seeks available constitutional review of irregularities in a criminal trial but does not have sufficient means to meet the costs of legal assistance in order to pursue such remedy, the State is obliged to provide legal

28

See, for more details of this case, [10.20]. See also General Comment 28, para 18.

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The ICCPR

assistance in accordance with article 14, paragraph 1, in conjunction with the right to an effective remedy as enshrined in article 2, paragraph 3 of the Covenant.

[14.34]

CURRIE v JAMAICA (377/89)

The author was a prisoner on death row in Jamaica. He alleged that lack of availability of legal aid for a constitutional motion, in which he proposed to challenge the fairness of his trial, constituted a breach of article 14. The HRC agreed: ¶13.2. The author has claimed that the absence of legal aid for the purpose of filing a constitutional motion itself constitutes a violation of the Covenant. The Committee notes that the Covenant does not contain an express obligation as such for a State to provide legal aid for individuals in all cases but only, in accordance with article 14 (3)(d), in the determination of a criminal charge where the interests of justice so require. ¶13.3. The Committee is aware that the role of the Constitutional Court is not to determine the criminal charge itself, but to ensure that applicants receive a fair trial in all cases, whether criminal or civil. The State party has an obligation, under article 2, paragraph 3, of the Covenant, to make the remedies in the Constitutional Court addressing violations of fundamental rights available and effective. ¶13.4. The determination of rights in proceedings in the Constitutional Court must conform with the requirements of a fair hearing in accordance with article 14, paragraph 1. In this particular case, the Constitutional Court would be called on to determine whether the author’s conviction in a criminal trial has violated the guarantees of a fair trial. In such cases, the application of the requirement of a fair hearing in the Constitutional Court should be consistent with the principles in paragraph 3 (d) of article 14. It follows that where a convicted person seeking Constitutional review of irregularities in a criminal trial has not sufficient means to meet the costs of legal assistance in order to pursue his Constitutional remedy and where the interests of justice so require, legal assistance should be provided by the State. In the present case the absence of legal aid has denied to the author the opportunity to test the regularities of his criminal trial in the Constitutional Court in a fair hearing, and is thus a violation of article 14, paragraph 1, juncto article 2, paragraph 3.

Currie has been followed in a number of cases,29 and of course it has now been confirmed in General Comment 32. [14.35] In Bahamonde v Equatorial Guinea (468/91) [14.30], the author suffered from personal political persecution, while Avellanal v Peru (202/86) [14.32] concerned blatant sex discrimination. The legal aid cases concerned discrimination on the basis of wealth. Thus, in these ‘access’ cases, the author was denied an equal chance to pursue legal rights. Therefore, the ‘access’ rights in these cases are intrinsically linked to the guarantee of ‘equality before the courts’. [14.36] In Currie, the HRC was influenced by the circumstance that the author’s constitutional proceedings were designed to challenge his conviction for a capital offence. Clearly, the existence of one’s entitlement to legal aid for civil proceedings 29 See Taylor v Jamaica (707/96), para 8.2; Desmond Taylor v Jamaica (705/1996), para 7.3; Shaw v Jamaica (704/96), para 7.6; Henry v Trinidad and Tobago (752/97); Kennedy v Trinidad and Tobago (854/98). Compare the earlier decision in Douglas, Gentles and Kerr v Jamaica (352/89).

Right to a Fair Trial

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under article 14(1) is in part driven by the gravity of the proceedings. This mirrors the rule regarding legal aid for criminal trials in article 14(3)(d) [14.152]. The following Concluding Observations on Norway indicate that civil proceedings are serious enough to warrant an entitlement to legal aid when they concern the attempted enforcement of any right protected by the ICCPR:30 ¶16. . . . [T]raditional Sami means of livelihood, falling under article 27 of the Covenant, do not appear to enjoy full protection in relation to various forms of competing public and private uses of land.31 Lawsuits by private landowners leading to judicial prohibition of reindeer herding and high legal costs for Sami are a particular concern in the absence of satisfactory legal aid.

[14.37]

GENERAL COMMENT 32

¶11. . . . [T]he imposition of fees on the parties to proceedings that would de facto prevent their access to justice might give rise to issues under article 14, paragraph 1. In particular, a rigid duty under law to award costs to a winning party without consideration of the implications thereof or without providing legal aid may have a deterrent effect on the ability of persons to pursue the vindication of their rights under the Covenant in proceedings available to them.

[14.38]

LINDON v AUSTRALIA (646/95)

The author alleged that the costs order against him, in respect of an appeal he launched against a criminal trespass conviction, breached his article 14 rights. ¶6.4. As to the author’s claim of a violation of article 14, paragraph 1, because the State party claimed costs and the courts affirmed these claims, the Committee notes that if administrative, prosecutorial or judicial authorities of a State party laid such a cost burden on an individual that his access to court de facto would be prevented, then this might give rise to issues under article 14, paragraph 1. However, the Committee is of the opinion that in the present case the author, for purposes of admissibility, has failed to substantiate such a claim. The costs imposed on him originate mainly from legal proceedings initiated by the author himself, with no direct relationship to the author’s defence against the trespassing charge. Therefore, this part of the communication is inadmissible under article 2 of the Optional Protocol.

Lindon may be contrasted with the following case. [14.39]

ÄÄRELÄ and NÄKKÄLÄJÄRVI v FINLAND (779/97)

The authors submitted, inter alia, the following complaint about a costs order against them in litigation concerning Sami minority rights:32 ¶3.2. . . . The authors also contend that the award of costs against the authors at the appellate level, having succeeded at first instance, represents bias and effectively prevents other Sami

30

(1999) UN doc CCPR/C/79/Add.112. See [24.29]ff. 32 On the minority rights aspects of this communication, see [24.32]. 31

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The ICCPR

from invoking Covenant rights to defend their culture and livelihood. There is no State assistance available to impecunious litigants to satisfy the imposition of costs.

The HRC found in favour of the authors on this point: ¶7.2. As to the authors’ argument that the imposition of a substantial award of costs against them at the appellate level violated their rights under article 14, paragraph 1, to equal access to the courts, the Committee considers that a rigid duty under law to award costs to a winning party may have a deterrent effect on the ability of persons who allege their rights under the Covenant have been violated to pursue a remedy before the courts. In the particular case, the Committee notes that the authors were private individuals bringing a case alleging breaches of their rights under article 27 of the Covenant. In the circumstances, the Committee considers that the imposition by the Court of Appeal of substantial costs award, without the discretion to consider its implications for the particular authors, or its effect on access to court of other similarly situated claimants, constitutes a violation of the authors’ rights under article 14, paragraph 1, in conjunction with article 2 of the Covenant. The Committee notes that, in the light of the relevant amendments to the law governing judicial procedure in 1999, the State party’s courts now possess the discretion to consider these elements on a case by case basis. ¶8.2. Pursuant to article 2, paragraph 3 (a), of the Covenant, the Committee considers that the authors are entitled to an effective remedy. In terms of the award of costs against the authors, the Committee considers that as the costs award violated article 14, paragraph 1, of the Covenant and, moreover, followed proceedings themselves in violation of article 14, paragraph 1, the State party is under an obligation to restitute to the authors that proportion of the costs award already recovered, and to refrain from seeking execution of any further portion of the award. . . .

In a concurring opinion, Mr Bhagwati added: It is clear that under the law as it then stood, the Court had no discretion in the matter of award of costs. The Court was under a statutory obligation to award costs to the winning party. The Court could not tailor the award of costs—even refuse to award costs—against the losing party taking into account the nature of the litigation, the public interest involved, and the financial condition of the party. Such a legal provision had a chilling effect on the exercise of the right of access to justice by none too wealthy litigants, and particularly those pursuing an actio popularis. The imposition of substantial costs under such a rigid and blind-folded legal provision in the circumstances of the present case, where two members of the Sami tribe were pursuing public interest litigation to safeguard their cultural rights against what they felt to be a serious violation, would, in my opinion, be a clear violation of article 14, paragraph 1, in conjunction with article 2. It is a matter of satisfaction that such a situation would not arise in the future, because we are told that the law in regard to the imposition of costs has since been amended. Now the Court has a discretion whether to award costs at all to the winning party, and, if so, what the amount of such costs should be depending upon various circumstances such as those I have mentioned above.

The HRC found that the State Party’s inflexible rules governing costs orders prior to June 1999 had the potential to deter people from seeking domestic remedies for breaches of their ICCPR rights. The fact of deterrence gave rise to an effective limitation on one’s access to courts to redress a human rights violation, contrary to article 14(1) (in conjunction with the right to a remedy in article 2). Under this

Right to a Fair Trial

447

test of ‘deterrence’, a person’s actual ability to pay the costs is irrelevant. Even if the person against whom costs were awarded was very wealthy, the probability of monetary penalty in case of a loss would nevertheless act as a deterrent, though it will of course not be as strong a deterrent as for a less wealthy person. [14.40] Six HRC members (Mme Chanet, and Messrs Amor, Ando, Klein, Shearer, and Yalden) issued a joint dissent in Äärelä. The minority found that a breach of article 14(1) arose only when the costs order was so harsh as to undermine an individual’s de facto ability to access a court. This test had been previously enunciated in Lindon [14.38]. Deterrence per se does not seem to satisfy this test. Therefore, the wealth of the person against whom costs were ordered was a relevant consideration. The possibility of a large costs order might deter a rich person, but would not deny them access to courts seeing as they could afford to pay the costs. Therefore, the costs order did not breach the ICCPR for the minority, as the authors had failed to substantiate such a level of financial hardship as effectively to block their future access to courts. [14.41] It is submitted that the majority decision in Äärelä regarding the issue of costs is to be preferred. Costs orders should not be structured so as to deter people from making legitimate attempts to seek redress for human rights abuses before domestic courts. [14.42]

MAHUIKA v NEW ZEALAND (547/93)

This case concerns the forced discontinuance of pending civil proceedings. At the time of the passage of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (‘the Settlement’), the authors had a case pending before New Zealand courts to determine the extent of their common law fishing rights. The Settlement extinguished those common law causes of action, replacing them with new statutory rights. The authors submitted, inter alia, the following complaint:33 ¶6.5. The authors submit that prior to the enactment of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, they had a right of access to a court or tribunal based on section 88 of the Fisheries Act to protect, determine the nature and extent, and to enforce their common law and Treaty of Waitangi fishing rights or interests. The repeal of this section by the 1992 Act interferes with and curtails their right to a fair and public hearing of their rights and obligations in a suit at law as guaranteed by article 14 (1) of the Covenant, because there is no longer any statutory framework within which these rights or interests can be litigated.

The State Party responded: ¶7.8. The State party adds that the authors’ complaint seeks to obscure the central element of the 1992 Settlement. In the State party’s opinion, the authors’ argument that the Settlement extinguished a right to go to court in respect of pre-existing claims ignores the fact that the Settlement in fact settled those claims by transforming them into a guaranteed entitlement to participate in the commercial fisheries. Since those claims had been settled, 33

The authors also complained about the substantive effect of the Settlement under art 27 [24.20].

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by definition there could no longer be a right to go to court to seek a further expansion of those rights. The State party explains, however, that while any pre-existing claims can no longer found a cause of action, Maori fisheries issues do remain within the jurisdiction of the courts. . . .

The HRC found in favour of the State Party: ¶9.10. The authors’ complaints about the discontinuance of the proceedings in the courts concerning their claim to fisheries must be seen in the light of the above. While in the abstract it would be objectionable and in violation of the right to access to court if a State party would by law discontinue cases that are pending before the courts, in the specific circumstances of the instant case, the discontinuance occurred within the framework of a nation wide settlement of exactly those claims that were pending before the courts and that had been adjourned awaiting the outcome of negotiations. In the circumstances, the Committee finds that the discontinuance of the authors’ court cases does not amount to a violation of article 14 (1) of the Covenant.

No violation arose in Mahuika as the discontinuance arose from the enactment of legislation designed to settle the pending legal claim at issue. However, the HRC indicates that in most circumstances the forced discontinuance of a person’s suit without his/her consent would breach the right to access a court under article 14(1).34 [14.43] Does article 14(1) guarantee substantive rights of access to courts? For example, would the removal by a State of a right to seek damages in court for tort, which would diminish one’s substantive right to access a court to seek such damages, amount to a breach of article 14(1)? [14.44]

GENERAL COMMENT 32

¶17. . . . [T]he right to access a court or tribunal as provided for by article 14, paragraph 1, second sentence, does not apply where domestic law does not grant any entitlement to the person concerned. For this reason, the Committee held this provision to be inapplicable in cases where domestic law did not confer any right to be promoted to a higher position in the civil service, to be appointed as a judge or to have a death sentence commuted by an executive body. Furthermore, there is no determination of rights and obligations in a suit at law where the persons concerned are confronted with measures taken against them in their capacity as persons subordinated to a high degree of administrative control, such as disciplinary measures not amounting to penal sanctions being taken against a civil servant, a member of the armed forces, or a prisoner. This guarantee furthermore does not apply to extradition, expulsion and deportation procedures [14.17]. . . .

[14.45]

MAHUIKA v NEW ZEALAND (547/93)

This issue of a right of access to court per se was addressed in this case. The State Party argued: ¶7.7. With respect to the authors’ claim that they are victims of a violation of article 14 (1) of the Covenant, the State party submits that the authors’ complaint is fundamentally misconceived and amounts to an attempt to import into the article a content which is not 34 See also S Joseph, ‘Human Rights Committee: Recent Cases’ (2001) 1 Human Rights Law Review 83, 87.

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consistent with the language of the article and which was not intended at the time the Covenant was drafted. According to the State party, article 14 does not provide a general right of access to courts in the absence of rights and jurisdiction recognized by law. Rather article 14 sets out procedural standards which must be upheld to ensure the proper administration of justice. The requirements of article 14 do not arise in a vacuum. The State party submits that the introductory words of the article make it clear that the guarantee of those procedural standards arises only when criminal or civil proceedings are in prospect; that is, when there is a legal cause of action to be tried in a court of competent jurisdiction. The consequence of the position put forward by the authors would be that a State’s legislature could not determine the jurisdiction of its Courts and the Committee would be involved in making substantive decisions on the justiciability of rights in domestic legal systems which extend far beyond the guarantees in the Covenant.

The HRC responded: ¶9.11. With regard to the authors’ claim that the Act prevents them from bringing claims concerning the extent of their fisheries before the courts, the Committee notes that article 14 (1) encompasses the right to access to court for the determination of rights and obligations in a suit at law. In certain circumstances the failure of a State party to establish a competent court to determine rights and obligations may amount to a violation of article 14 (1). In the present case, the Act excludes the courts’ jurisdiction to inquire into the validity of claims by Maori in respect to commercial fishing, because the Act is intended to settle these claims. . . . The Committee considers that whether or not claims in respect of fishery interests could be considered to fall within the definition of a suit at law, the 1992 Act has displaced the determination of Treaty claims in respect of fisheries by its specific provisions. Other aspects of the right to fisheries, though, still give the right to access to court, for instance in respect of the allocation of quota . . . The authors have not substantiated the claim that the enactment of the new legislative framework has barred their access to court in any matter falling within the scope of article 14, paragraph 1. Consequently, the Committee finds that the facts before it do not disclose a violation of article 14, paragraph 1.

Thus, Mahuika indicates that article 14(1) requires that States provide for particular causes of action ‘in certain circumstances’, and competent courts to determine those causes of action. However, the HRC gives no clue as to what those ‘certain circumstances’ are. [14.46] Certainly, a person is guaranteed access to courts ‘in the determination of any criminal charge against’ him or her. As noted directly above, Mahuika indicates that access to courts regarding certain civil causes of action is also guaranteed. Past cases have indicated that the number of such mandatory causes of action is very limited, if not non-existent. A number of OP communications have concerned amnesty statutes or other laws which have restricted the author’s rights to seek redress for alleged human rights abuses which occurred before entry into force of the OP for the relevant State. These communications have consistently been found inadmissible ratione temporis.35 A substantive right of access to courts, if it existed in article 14(1), could be triggered in respect of matters occurring prior to entry into force of the OP, so long as the date at which one sought to access 35

See [2.11]ff.

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the court occurred after such entry. Therefore, OP jurisprudence prior to Mahuika indicates that article 14(1) does not guarantee civil causes of action per se.36 [14.47] In IP v Finland (450/91), the author complained of his inability to appeal the decision of an administrative tribunal concerning his tax assessment. As these proceedings did not involve judicial review, it is uncertain whether they came within the ambit of article 14 [14.07]. The HRC stated: ‘even were these matters to fall within the scope ratione materiae of article 14, the right to appeal relates to a criminal charge, which is not here at issue. This part of the communication is therefore inadmissible . . . ’.37 In Tiyagarajah v Sri Lanka (1523/06), the author had claimed that the denial of an appeal in a civil trial was due to racial discrimination. The claim was found to be inadmissible, and the HRC did not even consider whether an independent right to appeal in civil proceedings existed. Nor did the HRC discuss whether article 14(1) might ground a right to appeal against the revocation of a university degree after administrative proceedings in Mathioudakis v Greece (1572/07). Therefore, it appears that one does not have a general right of appeal with regard to civil matters. Of course, Mahuika indicates that such a right may arise ‘in certain circumstances’ [14.45]. REQUISITE CHARACTERISTICS OF TRIBUNALS

[14.48]

GENERAL COMMENT 32

¶19. The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception. The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law. ¶20. Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. The dismissal of judges by the executive, e.g. before the expiry of the 36 Access to courts in certain circumstances is guaranteed by other ICCPR rights, such as art 9(4) (see discussion at [11.88]ff ). For the general right to a remedy in case of breach of an ICCPR right, see Ch 25. 37 At para 6.2.

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term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary. The same is true, for instance, for the dismissal by the executive of judges alleged to be corrupt, without following any of the procedures provided for by the law. ¶21. The requirement of impartiality has two aspects. First, judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a reasonable observer to be impartial. For instance, a trial substantially affected by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be impartial.

[14.49]

BAHAMONDE v EQUATORIAL GUINEA (468/91)

¶9.4. . . . [T]he Committee has . . . noted the author’s contention that the State party’s president controls the judiciary in Equatorial Guinea. The Committee considers that a situation where the functions and competences of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent and impartial tribunal within the meaning of article 14, paragraph 1, of the Covenant.

The HRC again endorsed the doctrine of the separation of judicial power as an essential element of article 14 compliance in Concluding Observations on Romania. It expressed concern over the ‘interference of the executive’ in judicial matters, and recommended establishment of ‘a clear demarcation between the competence of the executive and judicial bodies’.38 [14.50]

BANDARANAYAKE v SRI LANKA (1376/05)

This case concerned the harassment and dismissal of a senior judge in breach of article 25(c) [22.69]. The HRC also found the following violation of article 14(1): ¶7.3. The Committee recalls its general comment on article 14,39 that a dismissal of a judge in violation of article 25 (c) of the Covenant, may amount to a violation of this guarantee, read in conjunction with article 14, paragraph 1 providing for the independence of the judiciary. As set out in the same general comment, the Committee recalls that ‘judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law.’ For the reasons set out . . . above, the dismissal procedure did not respect the requirements of basic procedural fairness and failed to ensure that the author benefited from the necessary guarantees to which he was entitled in his capacity as a judge, thus constituting an attack on the independence of the judiciary. For this reason the Committee concludes that the author’s rights under article 25 (c) in conjunction with article 14, paragraph 1, have been violated.

38 39

(1999) UN doc CCPR/C/79/Add.111, para 10. See General Comment 3, para 64.

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Hence, the improper dismissal of a judge harms the independence of the judiciary and breaches article 14(1), as it constitutes an attack on the judge’s independence.40 [14.51] In Concluding Observations on Algeria, the HRC expressed concern over the fact that ‘judges enjoy immovability only after ten years of work’.41 Similarly, in Concluding Observations on Armenia, election by popular vote for six years did ‘not ensure . . . independence and impartiality’.42 Regarding Zambia, the HRC was concerned over the President’s power to remove judges without any independent judicial oversight.43 In Concluding Observations on the United States, the HRC stated:44 ¶23. The Committee is concerned about the impact which the current system of election of judges may, in a few states, have on the implementation of the rights provided under article 14 of the Covenant and welcomes the efforts of a number of states in the adoption of a merit-selection system. It is also concerned about the fact that in many rural areas justice is administered by unqualified and untrained persons. . . .

The HRC therefore strongly endorses judicial tenure as a prerequisite for an independent judiciary.45 However, it has also stressed that it is important for States to have mechanisms in place in order to provide for the impeachment of judges in cases of misconduct.46 [14.52] In Concluding Observations on Sudan, the HRC stated:47 ¶21. The Committee is concerned that in appearance as well as in fact the judiciary is not truly independent, that many judges have not been selected primarily on the basis of their legal qualifications, that judges can be subject to pressure through a supervisory authority dominated by the Government, and that very few non-Muslims or women occupy judicial positions at all levels. Therefore: Measures should be taken to improve the independence and technical competence of the judiciary,48 including the appointment of qualified judges from among women and members of minorities. Training in human rights law should be given to all judges,49 law enforcement officers and members of the legal profession.

See also Busyo v Democratic Republic of the Congo (933/00), Pastukhov v Belarus (814/98). (1998) UN doc CCPR/C/79/Add.95, para 14. 42 (1998) UN doc CCPR/C/79/Add.100, para 8; see also Concluding Observations on Peru (1996) UN doc CCPR/C/79/Add.67, para 14. 43 (1996) UN doc CCPR/C/79/Add.62, para 16. 44 (1995) UN doc CCPR/C/79/Add.50. 45 See also eg Concluding Observations on Republic of Moldova, (2002) UN doc CCPR/CO/75/ MDA, para 12; Vietnam (2002) UN doc CCPR/CO/75/VNM, para 10; Liechtenstein (2004) UN doc CCPR/CO/81/LIE, para 12; Uzbekistan (2005) UN doc CCPR/CO/83/UZB, para 16; Moldova (2009) UN docCCPR/C/MDA/CO/2, para 24; Turkmenistan (2012) UN doc CCPR/C/TKM/CO/1/Add.1, para 13. See also Pastukhov v Belarus (814/98), para 7.3, and Busyo et al v Democratic Republic of the Congo (933/00), para 5.2. 46 Concluding Observations on Namibia (2004) UN doc CCPR/CO/81/NAM, para 18. 47 (1997) UN doc CCPR/C/79/Add.85. 48 See also Concluding Observations on the Republic of the Congo (2000) UN doc CCPR/C/79/ Add.118, para 14, where the HRC emphasized the need for ‘adequate training’ of judges. 49 See also Concluding Observations on Georgia (2007) UN doc CCPR/C/GEO/CO/3, para 14. 40 41

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The HRC, in its Sudan comment, stresses the importance of a pluralistic judiciary, ensuring the representation of diverse values within the judicial branch of government. GENERAL COMMENT 32

[14.53]

¶24. Article 14 is also relevant where a State, in its legal order, recognizes courts based on customary law, or religious courts, to carry out or entrusts them with judicial tasks. It must be ensured that such courts cannot hand down binding judgments recognized by the State, unless the following requirements are met: proceedings before such courts are limited to minor civil and criminal matters, meet the basic requirements of fair trial and other relevant guarantees of the Covenant, and their judgments are validated by State courts in light of the guarantees set out in the Covenant and can be challenged by the parties concerned in a procedure meeting the requirements of article 14 of the Covenant.50 These principles are notwithstanding the general obligation of the State to protect the rights under the Covenant of any persons affected by the operation of customary and religious courts.

[14.54] Of course, the judiciary must be protected from threats and reprisals from discontented litigants.51 MILITARY COURTS

[14.55]

GENERAL COMMENT 32

¶22. The provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized, civilian or military. The Committee notes the existence, in many countries, of military or special courts which try civilians. While the Covenant does not prohibit the trial of civilians in military or special courts, it requires that such trials are in full conformity with the requirements of article 14 and that its guarantees cannot be limited or modified because of the military or special character of the court concerned. The Committee also notes that the trial of civilians in military or special courts may raise serious problems as far as the equitable, impartial and independent administration of justice is concerned. Therefore, it is important to take all necessary measures to ensure that such trials take place under conditions which genuinely afford the full guarantees stipulated in article 14. Trials of civilians by military or special courts should be exceptional, i.e. limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials.

In Concluding Observations on Chile, the HRC suggested that military tribunals should never have jurisdiction to try civilians in civil matters.52 [14.56]

FALS BORDA et al v COLOMBIA (46/79)

The article 14 allegations are evident from the HRC’s finding of non-violation: 50 See also Concluding Observations on Madagascar (2007) UN doc CCPR/C/MDG/CO/3, para 16; Botswana (2008) UN doc CCPR/C/BWA/CO/1, para 14; Ethiopia (2011) UN doc CCPR/C/ETH/ CO/1, para 22. 51 Concluding Observations on Brazil (1996) UN doc CCPR/C/79/Add.66, para 11. 52 (2007) UN doc CCPR/C/CHL/CO/5, para 12.

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¶13.3. The allegations as to breaches of the provisions of article 14 of the Covenant concerning judicial guarantees and fair trial, seem to be based on the premise that civilians may not be subject to military penal procedures and that when civilians are nevertheless subjected to such procedures, they are in effect deprived of basic judicial guarantees aimed at ensuring fair trial, which guarantees would be afforded to them under the normal court system, because military courts are neither competent, independent and impartial. The arguments of the author in substantiation of these allegations are set out in general terms and principally linked with the question of constitutionality of Decree No. 1923. He does not, however, cite any specific incidents or facts in support of his allegations of disregard for the judicial guarantees provided for by article 14 in the application of Decree No. 1923 in the cases in question. Since the Committee does not deal with questions of constitutionality, but with the question whether a law is in conformity with the Covenant, as applied in the circumstances of this case, the Committee cannot make any finding of breaches of article 14 of the Covenant.

The Fals Borda decision may be fairly criticized as the HRC appears to deny the relevance of issues relating to the constitutionality of the military courts at issue. Article 14(1) stipulates that persons must be tried before tribunals ‘established by law’. Therefore, the constitutionality or legality of a tribunal’s existence is an issue with which the HRC should be concerned. [14.57]

KURBANOV v TAJIKISTAN (1096/02)

The author’s son was a civilian tried before a military court. The HRC found that this circumstance breached article 14(1): ¶7.6. . . . [T]he Committee notes that the State party has neither addressed this claim nor provided any explanation as to why the trial was conducted, at first instance, by the Military Chamber of the Supreme Court. In the absence of any information by the State party to justify a trial before a military court, the Committee considers that the trial and death sentence against the author’s son, who is a civilian, did not meet the requirements of article 14, paragraph 1.

Since the very early decision in Fals Borda, the HRC now applies stricter criteria with regard to the ICCPR compatibility of military trials for civilians. In particular, States bear the burden of proof in establishing why a civilian should be tried by a military tribunal, as is now reflected in General Comment 32 [14.55].53 [14.58]

MUSAEV v UZBEKISTAN (1914–6/09)

This case involved a number of violations of the due process rights of the author’s son, a civilian tried before a military tribunal. Messrs Salvioli and Rivas Posada concurred, but added the following concerns over the HRC’s jurisprudence on military triubnals: ¶2. We wish to highlight the need to review the current position of the Committee, which considers the trial of civilians in military courts to be compatible with the Covenant. This 53 See also Benhadj v Algeria (1173/03), Madani v Algeria (1172/03), El Abani v Libyan Arab Jamahiriya (1640/07), Akwanga v Cameroon (1813/08).

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position is based on a paragraph contained in general comment No. 32, which has attracted criticism in a number of minority opinions regarding individual cases previously considered by the Committee. ¶3. A close reading of article 14 would indicate that the Covenant does not even go so far as to suggest that military justice might be applied to civilians. Article 14, which guarantees the right to justice and due process, does not contain a single reference to military courts. On numerous occasions—and always with negative consequences as far as human rights are concerned—States have empowered military courts to try civilians, but the Covenant is completely silent on the subject. ¶4. It is true that the Covenant does not prohibit military jurisdiction, nor is it our intention here to call for its abolition. However, the jurisdiction of the military criminal justice system constitutes an exception which should be contained within suitable limits if it is to be fully compatible with the Covenant: ratione personae, military courts should try active military personnel, never civilians or retired military personnel; and ratione materiae, military courts should never have jurisdiction to hear cases involving alleged human rights violations. Only under these conditions can the application of military justice, in our opinion, be considered compatible with the Covenant.

[14.59] The HRC found a breach of article 14(5), which guarantees a right to appeal in criminal cases, in Mansaraj et al v Sierra Leone (839–841/98), in the context of the imposition of a death sentence by a court martial.54 It is likely that the right to appeal applies in the context of all courts martial. ELEMENTS OF A FAIR TRIAL

[14.60]

GENERAL COMMENT 32

¶25. The notion of fair trial includes the guarantee of a fair and public hearing. Fairness of proceedings entails the absence of any direct or indirect influence, pressure or intimidation or intrusion from whatever side and for whatever motive. . . . ¶26. Article 14 guarantees procedural equality and fairness only and cannot be interpreted as ensuring the absence of error on the part of the competent tribunal. It is generally for the courts of States parties to the Covenant to review facts and evidence, or the application of domestic legislation, in a particular case, unless it can be shown that such evaluation or application was clearly arbitrary or amounted to a manifest error or denial of justice, or that the court otherwise violated its obligation of independence and impartiality. The same standard applies to specific instructions to the jury by the judge in a trial by jury.

[14.61] In Concluding Observations on Kazakhstan, the HRC was suitably sceptical over the fairness of a judicial system where ‘acquittals in criminal cases [were] as low as 1 per cent’.55 [14.62] Mr Ando, in a dissenting opinion in Richards v Jamaica (535/93), outlined the following elements of a fair criminal trial (the majority did not disagree):56

54 55

At para 5.6. (2011) UN doc CCPR/C/KAZ/CO/1, para 22.

56

See majority opinion at [14.75].

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In my opinion, the purpose of a criminal trial is to ascertain what actually took place in the case at issue, that is, to find ‘true facts’ of the case, on which conviction and sentence should be based. Of course, ‘true facts’ as submitted by the defendant may differ from ‘true facts’ as submitted by the prosecution, and since defendants are generally at a disadvantage compared to the prosecution, various procedural guarantees exist to secure a fair trial. The requirement of equality of arms, rules of evidence, control of the proceedings by independent and impartial judges, deliberation and decision by neutral juries, and the system of appeals are all part of these guarantees.

[14.63] In numerous Optional Protocol cases, authors have submitted generalized complaints of unfair trials and judicial bias, such as trial by prejudiced judges or juries, delivery of inadequate instructions to juries by judges, or faulty evaluation of fact and/or law by domestic tribunals. The HRC has usually dismissed such complaints, as is evinced from the following case excerpts. JK v CANADA (174/84) ¶7.2. The Committee further observes that it is beyond its competence to review findings of fact made by national tribunals or to determine whether national tribunals properly evaluated new evidence submitted on appeal.

RM v FINLAND (301/88) ¶6.4. . . . The Committee further observes that it is not an appellate court and that allegations that a domestic court has committed errors of fact or law do not in themselves raise questions of violation of the Covenant unless it also appears that some of the requirements of article 14 may not have been complied with.

VAN MEURS v THE NETHERLANDS (215/86) ¶7.1. With respect to the author’s claims that the hearing of his case was not fair, the Committee refers to its constant jurisprudence that it is not a ‘fourth instance’ court competent to reevaluate findings of fact or to review the application of domestic legislation. . . .

PINTO v TRINIDAD and TOBAGO (232/87) ¶12.3. . . . It is not, in principle, for the Committee to review specific instructions to the jury by the judge in a trial by jury, unless it can be ascertained that the instructions to the jury were clearly arbitrary or amounted to a denial of justice. In the Committee’s opinion, the judge’s instructions to the jury must meet particularly high standards as to their thoroughness and impartiality in cases in which a capital sentence may be pronounced on the accused. . . .

GS v JAMAICA (369/89) ¶3.2. . . . [T]he review, by the Committee, of specific instructions to the jury by the judge in a trial by jury or of generalised claims of bias is beyond the scope of application of article 14.

[14.64] The above case excerpts reinforce the fact that article 14(1) is essentially a procedural rather than a substantive right. One’s right to a fair trial is guaranteed

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by adherence to appropriate procedures; one does not have a right that a tribunal will actually reach the correct result in one’s case. There is no civil right to freedom from judicial error, so long as the appropriate procedures, which are generally designed to minimize error, are followed. Furthermore, the HRC will not readily presume bias or some other defect in a case in the absence of clear examples of unfairness. Indeed, perhaps the HRC has been too unwilling to second-guess the decisions of domestic tribunals. In a number of cases, the HRC’s diffidence has prevented it from finding violations of article 14(1) in the face of apparent trial flaws. Note, for example, that more rigorous scrutiny of the circumstances of the relevant trial by Mr Scheinin in McTaggart v Jamaica (749/97) led him, in dissent, to find a violation of article 14. On the other hand, it must be conceded that most domestic courts have far greater fact-finding capabilities than the HRC [1.53]. The HRC majority found most of the fair trial allegations inadmissible, and no article 14 violations on the merits.57 [14.65]

HENDRIKS v THE NETHERLANDS (201/85)

Mr Wako issued the following separate opinion in this case, where he expressed misgivings over the HRC’s deference to local courts in family court proceedings.58 ¶3. My first concern is that, though the Committee’s practice of not reviewing the decisions of local courts is prudent and appropriate, it is not dictated by the Optional Protocol. In cases where the facts are clear and the texts of all relevant orders and decisions have been made available by the parties, the Committee should be prepared to examine them as to their compatibility with the specific provisions of the Covenant invoked by the author. Thus, the Committee would not be acting as a ‘fourth instance’ in determining whether a decision of a State party’s court was correct according to that State’s legislation, but would only examine whether the provisions of the Covenant invoked by the alleged victim have been violated.

[14.66]

NT v CANADA (1052/02)

The HRC found a breach of article 14(1) with regard to the findings in child custody proceedings [20.39]: ¶8.12. As to the claims of unfair hearing under article 14, paragraph 1, the Committee observes that the judge based his finding on what he believed to be the ‘serious illness of the mother’. This conclusion was based on the two-year old assessment of Dr. K. that the author suffered ‘from a delusional disorder’ and ‘erotomanic, persecutory and somatic delusions’, and other psychiatric reports. It transpires from the judgement that the judge selectively and incorrectly used these reports. In particular, he appears to have misinterpreted Dr. K.’s assessment . . . that if she did experience erotomanic delusions, they did not appear to have had an impact on her ability to care for her daughter. Further, the judge omitted Dr. G.’s opinion that there was no formal thought disorder, and that her ideas of persecution were not of delusional proportions. The judge did not hear Dr. K., who had been summoned to court by the author but failed to appear, nor did he solicit the testimony any of the other doctors who had assessed the author. 57 58

See also the dissent of Mr Solar Yrigoyen in Thomas v Jamaica (614/95). See also [20.59].

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¶8.13. It transpires from the file that the judge decided the question of removal on one single incident of assault and contested facts, which took place three years earlier. In addition, there is no indication that the judge considered hearing the child, or that the child was involved at any point in the proceedings. While her wishes were expressed by her lawyer at trial, indicating that ‘she wished to remain with her present foster parents although she still indicated a wish to visit with her mother’, the judge found that ‘continued access would only keep this state of limbo which Dr. P. believes is very damaging for the child and there should be closure and the child should be permitted to get on with the new opportunity which she has for a decent life.’ The Committee notes however that the child’s psychologist considered that the child was in a state of limbo because she was ‘confused by her mother’s absence’. Further, the judge pointed out that ‘it is significant to note that the child that we are dealing with now is not the same one that was apprehended in that these proceedings have taken nearly three years and we are now dealing with a seven year old child who has now expressed the desire not to return home’. While the Committee has taken note that the judge did examine the child’s wishes and ordered crown wardship without access in the best interests of the child, the Committee cannot share the Court’s assessment that the termination of all contact between mother and child could serve the child’s best interest in this case. In view of the above, the Committee considers that the author and her daughter did not have a fair hearing in the child protection trial, in violation of article 14, paragraph 1.

[14.67]

LAGUNAS CASTEDO v SPAIN (1122/02)

This case involved an actual finding of bias against a judge.59 ¶9.5. The Committee recalls its general comment No. 32, in which it states that the impartiality of the courts has two aspects. First, judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Secondly, the tribunal must also appear to a reasonable observer to be impartial. These two aspects refer to the subjective and objective elements of impartiality, respectively. ¶9.6. As regards the subjective element, the judge’s impartiality must be presumed in the absence of proof to the contrary. In this regard, the Committee takes note of the author’s argument that the judge penalized her by committing errors in the judgement that were to her disadvantage. However, the Committee cannot conclude that those errors point to a subjective lack of impartiality of the judge in this case. ¶9.7. It should also be determined whether, quite apart from the judge’s personal mindset, there are ascertainable objective facts which may raise doubts as to his impartiality. Judges must not only be impartial, they must also be seen to be impartial. When deciding whether there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of those claiming that there is a reason to doubt his impartiality is significant but not decisive. What is decisive is whether the fear can be objectively justified. ¶9.8. The Committee is of the view that, since the reporting judge was an employee of the University, where he worked as an associate lecturer (one of the parties to the proceedings before the High Court of Justice of Murcia), the author could reasonably have harboured 59 See also Karttunen v Finland (387/89), González del Rio v Peru (263/87), and Perterer v Austria (1015/01).

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doubts as to the impartiality of the court. The Committee considers that, in the circumstances, the author’s apprehensions as to the impartiality of the judge are objectively justified and it therefore cannot be considered that there was an impartial court in the meaning of article 14, paragraph 1, of the Covenant.

A judge must not only be impartial, but the impartiality of judges must be clear to an observer. The HRC confirmed a high standard of objective impartiality is required under article 14(1). Any judge with a reasonably perceptible conflict of interest must not participate in a case, or a breach will arise. In contrast, the minority (Messrs Johnson Lopez and Rivas Posada) seemed to focus on whether the relevant judge was actually impartial in his decision-making in the case, and they concluded that he was not. The majority approach seems preferable, and more in line with the principle that justice must not only be done, but be seen to be done.60 [14.68]

LARRAÑAGA v PHILIPPINES (1421/05)

¶7.9. As to the author’s claim that his rights were violated under article 14, paragraphs 1, because the trial court and the Supreme Court were not independent and impartial tribunals, the Committee notes that the trial judge and two Supreme Court judges were involved in the evaluation of the preliminary charges against the author in 1997. In the present case, the involvement of these judges in the preliminary proceedings was such as to allow them to form an opinion on the case prior to the trial and appeal proceedings. This knowledge is necessarily related to the charges against the author and the evaluation of those charges. Therefore, the involvement of these judges in these trial and appeal proceedings is incompatible with the requirement of impartiality in article 14, paragraph 1.61

[14.69]

KURBONOV v TAJIKISTAN (1208/03)

The facts are evident from the finding of violation: ¶6.3. In court, the author’s son retracted his confession because it had been obtained under torture. On 7 April 2003, the Criminal Chamber of the Supreme Court dismissed his claim on the ground that in court, the policemen suspected of having tortured him denied any wrongdoing, and because he was beaten by [the] police officers’. The court did not take into account that those policemen were cautioned afterwards for their unlawful acts . . . , holding that the signature on the copy of the order confirming their sanctions was illegible. On appeal, the court did not address these claims. The Committee notes that the above claims relate primarily to the evaluation of facts and evidence. It recalls its jurisprudence that it is generally for the courts of States parties to the Covenant to evaluate facts and evidence in a particular case, unless it can be ascertained that it was clearly arbitrary or amounted to a denial of justice. In the present case, the facts presented by the author clearly demonstrate that the Supreme Court acted in a biased and arbitrary manner with respect to the complaints related to the author’s son’s torture during the preliminary detention, because of the summary and unreasoned rejection of the evidence, properly and clearly documented by the author, that he had been tortured. In their effect, the action of the courts 60 Cf Van Den Hemel v Netherlands (1185/03), where it is arguable that the HRC did not apply such a strict standard regarding perceptions of bias in its decision. 61 In a dissent, Mrs Wedgwood noted that this decision departed from an earlier finding in Collins v Jamaica (356/89).

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placed the burden of proof on the author, whereas the general principle is that the burden of proof that the confession was made without duress is on the prosecution. The Committee concludes that the treatment of Mr. Kurbonov during his preliminary detention, and the manner the courts addressed his subsequent claims to this effect, amounts to a violation of article 7 and of article 14, paragraph 1, of the Covenant.

[14.70] The decision in Kurbonov signalled a greater willingness on the part of the HRC to uphold allegations of bias by courts in the absence of a robust repudiation of allegations by a State. Similar cases include Shchetka v Ukraine (1535/06), Dugin v Russian Federation (815/98), Rakhmatov et al v Tajikistan (1209, 1231/03 and 1241/04), Ashurov v Tajikistan (1348/05), Saidov v Tajikistan (964/01), Rouse v Philippines (1089/02), Arutyuniantz v Uzbekistan (971/01), Deolall v Guyana (912/00), Nazarov v Uzbekistan (911/00), Khomidova v Tajikistan (1117/02), Kulov v Kyrgyzstan (1369/2005), Sultanova v Tajikistan (915/00), and Gunan v Kyrgysztan (1545/07). [14.71] In Cox v Canada (539/93), the author alleged that the Pennsylvanian practice of requiring ‘death qualified juries’ in capital cases breached his right to a fair trial for a capital crime.62 A ‘death qualified jury’ excludes people who are conscientiously opposed to the death penalty, so that the jury is capable of unanimously imposing a death penalty for capital crimes. This part of Cox’s communication was apparently inadmissible, though the HRC did not expressly address this complaint. It is a shame the issue was not examined on the merits. ‘Death qualified’ juries are arguably disproportionately representative of politically conservative views, so the question of their impartiality could be raised. [14.72]

WRIGHT v JAMAICA (349/89)

This case is a rare example of a communication in which the HRC found that the domestic judge’s instructions breached article 14(1). The author had been convicted of murder. His allegations are evident from the HRC’s opinion: ¶8.1. With respect to the alleged violations of the Covenant, [a number of] issues are before the Committee: (a) whether the judge showed bias in his evaluation of the evidence or in his instructions to the jury; (b) whether the overlooking of the significance of the time of death amounted to a violation of the author’s right to a fair trial . . . ¶8.3. In respect of the issue of the significance of the time of death of the victim, the Committee begins by noting that the post-mortem on the deceased [the author’s alleged victim] was performed on 1 September 1981 at approximately 1 p.m., and that the expert concluded that death had occurred forty-seven hours before. His conclusion, which was not challenged, implied that the author was already in police custody when the deceased was shot. The information was available to the Court; given the seriousness of its implications, the Court should have brought it to the attention of the jury, even though it was not mentioned by counsel. . . . In all the circumstances, and especially given that the trial of the author was for a capital offence, this omission must, in the Committee’s view, be deemed 62 At para 8(2)(c). Therefore, Cox argued that, as his proposed extradition to Pennsylvania foreseeably exposed him to such a breach, the extradition itself breached the ICCPR [9.96].

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a denial of justice and as such constitutes a violation of article 14, paragraph 1, of the Covenant. This remains so even if the placing of this evidence before the jury might not, in the event, have changed their verdict and the outcome of the case.

[14.73] The following cases concern discrete violations of article 14(1): coercion of witnesses by the prosecution, abuse by a prosecutor of a defendant’s plea bargain, hostility within a courtroom, failures by courts to accept crucial evidence in suits at law, the failure to permit one side in litigation to submit comments on a submission by the other side, the conviction of a person on the basis of evidence obtained by the torture of others, and serious irregularities in the police investigation leading to trial. [14.74]

JOHN CAMPBELL v JAMAICA (307/88)

The facts behind the HRC’s finding of a violation of article 14(1) are described below: ¶6.3. As regards the author’s claim that his son Wayne was detained in order to force him to testify against him, the Committee observes that this is a grave allegation, which the author has endeavoured to substantiate, and which is corroborated by his son’s statement. In the absence of any information from the State party, the Committee bases its decision on the facts as provided by the author. ¶6.4. Article 14 of the Covenant gives everyone the right to a fair and public hearing in the determination of a criminal charge against him; an indispensable aspect of the fair trial principle is the equality of arms between the prosecution and the defence. The Committee observes that the detention of witnesses in view of obtaining their testimony is an exceptional measure, which must be regulated by strict criteria in law and in practice. It is not apparent from the information before the Committee that special circumstances existed to justify the detention of the author’s minor child. Moreover, in the light of his retraction, serious questions arise about possible intimidation and about the reliability of the testimony obtained under these circumstances. The Committee therefore concludes that the author’s right to a fair trial was violated.

[14.75]

RICHARDS v JAMAICA (535/93)

In this case the author was found guilty of murder and sentenced to death. The author claimed that he had been deprived of a fair trial contrary to article 14. The HRC agreed in the following terms: ¶7.2. The author has claimed that his trial was unfair because the prosecution entered a nolle prosequi plea after the author had pleaded guilty to a charge of manslaughter [and launched a fresh prosecution for murder]. The author claims that the extent of media publicity given to his guilty plea negated his right to presumption of innocence and thus denied him the right to a fair trial. The Court of Appeal of Jamaica acknowledged the possibility of disadvantage to the author at presenting his defence at the trial, but observed that nothing shows that the convicting jury was aware of this. The entry of a nolle prosequi was found by the Jamaican courts and the Judicial Committee of the Privy Council to be legally permissible, as under Jamaican law the author had not been finally convicted until sentence was passed. The question for the Committee is not, however, whether it was

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lawful, but whether its use was compatible with the guarantees of fair trial enshrined in the Covenant in the particular circumstances of the case. Nolle prosequi is a procedure which allows the Director of Public Prosecutions to discontinue a criminal prosecution. The State party has argued that it may be used in the interests of justice and that it was used in the present case to prevent a miscarriage of justice. The Committee observes, however, that the Prosecutor in the instant case was fully aware of the circumstances of Mr Richards’ case and had agreed to accept his manslaughter plea. The nolle prosequi was used not to discontinue proceedings against the author but to enable a fresh prosecution against the author to be initiated immediately, on exactly the same charge in respect of which he had already entered a plea of guilty to manslaughter, a plea which had been accepted. Thus, its purpose and effect were to circumvent the consequences of that plea, which was entered in accordance with the law and practice of Jamaica. In the Committee’s opinion, the resort to a nolle prosequi in such circumstances, and the initiation of a further charge against the author, was incompatible with the requirements of a fair trial within the meaning of article 14, paragraph 1, of the Covenant.

[14.76]

GRIDIN v RUSSIAN FEDERATION (770/97)

The author complained that hostility within the courtroom deprived him of a fair trial. The HRC agreed. ¶3.5. . . . Between 26 and 30 November 1989 radio stations and newspapers announced that the author was the feared ‘lift-boy’ murderer, who had raped several girls and murdered three of them. . . . According to the author, the court room was crowded with people who were screaming that the author should be sentenced to death. He also states that the social prosecutors and the victims were threatening the witnesses and the defense and that the judge did not do anything to stop this. Because of this, there was no proper opportunity to examine the main witnesses in court. . . . ¶8.2. With regard to the author’s claim that he was denied a fair trial in violation of article 14, paragraph 1, in particular because of the failure by the trial court to control the hostile atmosphere and pressure created by the public in the court room, which made it impossible for defence counsel to properly cross-examine the witnesses and present his defence, the Committee notes that the Supreme Court referred to this issue, but failed to specifically address it when it heard the author’s appeal. The Committee considers that the conduct of the trial, as described above, violated the author’s right to a fair trial within the meaning of article 14, paragraph 1.

[14.77]

JANSEN-GIELEN v NETHERLANDS (846/99)

The author was involved in administrative proceedings to determine her psychiatric ability to perform her job. Her complaint concerned the relevant Tribunal’s refusal to admit into evidence a crucial psychiatric report. The HRC stated: ¶8.2. The author has claimed that the failure of the Central Appeals Tribunal to append the psychological report, submitted by her counsel, to the case file two days before the hearing, constitutes a violation of her right to a fair hearing. The Committee has noted the State party’s argument that the Court found that admission of the report two days before the hearing would have unreasonably obstructed the other party in the conduct of the case. However, the Committee notes that the procedural law applicable to the hearing of the case did not

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provide for a time limit for the submission of documents. Consequently, it was the duty of the Court of Appeal, which was not constrained by any prescribed time limit to ensure that each party could challenge the documentary evidence which the other filed or wished to file and, if need be, to adjourn proceedings. In the absence of the guarantee of equality of arms between the parties in the production of evidence for the purposes of the hearing, the Committee finds a violation of article 14, paragraph 1 of the Covenant.

[14.78]

VOJNOVI v CROATIA (1510/06)

This case concerned local proceedings regarding the attempted restoration of property lost by the authors when they abandoned the property due to serious racial harassment. The article 14(1) violation concerned the court’s failure to hear relevant witnesses: ¶8.2. With regard to the alleged violation of article 14, paragraph 1, of the Covenant, the Committee takes note of the author’s claims that his rights to a fair trial in the review proceedings before the Zagreb Municipal Court were violated as two key witnesses—neighbours who were acquainted with the circumstances that led to the author’s departure—were summoned but not heard; that a confrontation between the author’s wife and the witness Veselinka Zelenika, who currently occupies the apartment, was rejected; and that information regarding similar situations of other Serbs in the same apartment building was not taken into consideration. The Committee further notes the State party’s arguments stating that in the said proceedings, the author was represented by an attorney of his choice; that he and his wife were able to participate in the proceedings and give oral testimony; and that witness statements were examined. ¶8.3. . . . In the present case, the proceedings relate to the determination of rights and obligations pertaining to specially protected tenancy in the area of civil law and they therefore fall under the concept of a suit at law. With regard to the alleged violation of the right to a fair trial, the Committee notes that it is a fundamental duty of the domestic courts to ensure equality between the parties, including the ability to contest all the arguments and evidence adduced by the other party. In its 12 April 2002 decision, the Zagreb Municipal Court evaluated that the case was sufficiently debated following the hearing of the author and his wife and three witnesses, including the current owner of the apartment. The Committee observes that, in addition to refusing to hear witnesses summoned to testify on the author’s departure, as noted in 8.2, the Court also rejected the reception of additional information on other persons of Serb nationality who abandoned their apartments in similar circumstances, stating that this information was not part of the debate. The Committee recalls that it is generally for the courts of States parties to the Covenant to evaluate facts and evidence in a particular case, unless it can be ascertained that the evaluation was clearly arbitrary or amounted to a denial of justice. However, given the circumstances in the State party when the facts occurred, as noted by the author, and the conditions in which the family had to leave the apartment and relocate to Belgrade, the Committee considers that the decision of the Court not to hear witnesses proposed by the author was arbitrary and violated the principles of fair trial and equality before courts contained in article 14, paragraph 1, in conjunction with article 2, paragraph 1, of the Covenant.

[14.79]

ÄÄRELÄ and NÄKKÄLÄJÄRVI v FINLAND (779/97)

In its finding of a violation of article 14(1), the HRC stated:

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¶7.4. As to the author’s contention that the Court of Appeal violated the authors’ right to a fair trial contained in article 14, paragraph 1, by failing to afford the authors an opportunity to comment on the brief containing legal argument submitted by the Forestry Authority after expiry of filing limits, the Committee notes that it is a fundamental duty of the courts to ensure equality between the parties, including the ability to contest all the argument and evidence adduced by the other party. The Court of Appeal states that it had ‘special reason’ to take account of these particular submissions made by the one party, while finding it ‘manifestly unnecessary’ to invite a response from the other party. In so doing, the authors were precluded from responding to a brief submitted by the other party that the Court took account of in reaching a decision favourable to the party submitting those observations. The Committee considers that these circumstances disclose a failure of the Court of Appeal to provide full opportunity to each party to challenge the submissions of the other, thereby violating the principles of equality before the courts and of fair trial contained in article 14, paragraph 1, of the Covenant. . . . ¶8.2. . . . As to the violation of article 14, paragraph 1, arising from the process applied by the Court of Appeal in handling the brief submitted late by the Forestry Service (para. 7.4), the Committee considers that, as the decision of the Court of Appeal was tainted by a substantive violation of fair trial provisions, the State party is under an obligation to reconsider the authors’ claims.

[14.80]

BAZAROV v UZBEKISTAN (959/00)

¶8.3. The Committee has noted the authors’ allegations that their son’s co-defendants were beaten and tortured during the investigation to the point that they gave false testimony incriminating him and served as a basis for his conviction. The Committee notes that from the material before it, it transpires that the alleged victim and his lawyer have claimed that the co-defendants showed marks of torture in court and affirmed that their testimonies were obtained under torture, in response to which the presiding judge summoned two of the investigators in question, and asked them whether they used unlawful methods of investigation, and dismissed them after receiving a negative reply. The State party merely replied that the alleged victim’s co-defendants or lawyers did not request the court to carry out any medical examination in this regard, and that unspecified ‘internal safeguard procedures’ of the law-enforcement agencies had not revealed any misconduct during the pre-trial detention. In this connexion, the Committee notes that the State party has not adduced any documentary evidence of any inquiry conducted in the context of the court trial or in the context of the present communication. . . . In the circumstances, the Committee considers that due weight must be given to the authors’ allegations, as the State party has failed to refute the allegations that the alleged victim’s co-defendants were tortured to make them give false evidence against him. Accordingly, the Committee concludes that the facts as presented reveal a violation of the alleged victim’s rights under article 14, paragraph 1, of the Covenant.

A person cannot be compelled to testify against himself, whether through torture or other coercion, under article 14(3)(g). This provision did not apply in Bazarov as he was not the person tortured. Instead, his rights under article 14(1) were found to be violated. [14.81]

AKHADOV v KYRGYSZTAN (1503/06)

¶7.5. The Committee considers that in the present case, the courts, and this was uncontested by the State party, failed to address properly the victim’s complaints related to his

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ill-treatment by the police. The Committee considers that as a consequence, the criminal procedures in Mr. Akhadov’s case were vitiated by irregularities, which casts doubts on the fairness of the criminal trial as a whole. In the absence of any pertinent observations from the State party in this respect, and without having to examine separately each of the author’s allegations in this connection, the Committee considers that in the circumstances of the case, the facts as presented reveal a separate violation of the author’s rights under article 14, paragraph 1, of the Covenant. In light of this conclusion, and given that the author has been sentenced to death following a trial held in violation of the fair trial guarantees, the Committee concludes that the author is also a victim of a violation of his rights under article 6, read in conjunction with article 14, of the Covenant.

This finding regarding article 14(1) is unusual as it is based on the irregularities of the preceding police investigation, rather than on manifest irregularities within the trial itself.63 [14.82] In Wolf v Panama (289/88), an obvious violation of article 14(1) was entailed in the State’s refusal to allow the author to attend relevant proceedings, and to have a chance properly to brief legal representatives.64 Thomas v Jamaica (272/88) involved another blatant violation of article 14(1) in the State Party’s failure to inform the author of his appeal date until after it had taken place. In MG v Germany (1482/06), the court’s decision to order a psychiatric assessment of the author ‘without having heard or seen the author in person and to base this decision merely on her procedural conduct and written court submissions was not reasonable’, so it breached article 17 in conjunction with article 14(1) [16.39].65 An extraordinary series of acquittals, and reversals of acquittals upon appeal, facilitated the finding of a breach of article 14(1) in Krasnov v Kyrgysztan (1402/05). [14.83] A failure by the State to enforce the legally binding orders of its own courts and tribunals, and the frustration of a person’s efforts to enforce those orders, will breach article 14(1).66 Sechremelis v Greece (1507/06) concerned the State’s failure to enforce its own court’s order against Germany in favour of the authors regarding damage caused during the Second World War. However, no breach of article 14(1) was found, as it seemed Greece’s actions were compelled by the international law of State immunity [1.93]. In Sayadi and Vinck v Belgium (1472/06), the authors’ assets had been frozen and their travel restricted as they had been placed on the UN Sanctions List, which dictated the sanctions suffered by the authors. They were on the list because Belgium had transmitted their names to the UN Security Council [1.87]. The local Belgian courts ordered Belgium to request the delisting of the authors. It did so, without success. Despite this lack of success, the HRC found that there was no violation of article 14(1) as Belgium had, as far as was possible within its jurisdiction, complied with the court order.67

64 See also Marinich v Belarus (1502/06), para 10.5. At para 6.6. At para 10.2. 66 See eg Czernin v Czech Republic (823/98), para 7.5; Lerma v Colombia (1611/07), para 10.4. 67 At para 10.9. 63 65

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[14.84] The following cases demonstrate how certain guarantees for criminal trials under article 14 are much weaker, or do not exist, in respect to civil trials under article 14(1). [14.85]

MARTÍNEZ MUÑOZ v SPAIN (1006/01)

¶6.4. The author also claims a violation of article 14, paragraph 1, of the Covenant, arguing that, since he was not allowed to dispense with a procurador and to represent himself before the Constitutional Court, he was placed in a situation of inequality with respect to persons with a law degree; such inequality was not justified. In this regard, the Committee recalls its constant jurisprudence that the requirement for representation by a procurador reflects the need for a person with knowledge of the law to be responsible for handling an application to that court. The Committee therefore considers that the author’s allegations have not been properly substantiated for the purposes of admissibility.

Similar inadmissibility decisions were reached in Torregrosa la Fuente v Spain (866/99), Marín Gómez v Spain (865/99), Sánchez González v Spain (1005/01), and Arias v Spain (1531/06). It therefore seems that any right of self-representation under article 14(1), as opposed to a right of self-representation under article 14(3)(d) [14.150], is very weak or non-existent. [14.86] In IS v Belarus (1994/10), the HRC stated ‘that article 14, paragraph 1 of the Covenant does not contain a prohibition of the retroactive application of laws regulating civil matters’.68 Such a right exists for criminal offences in article 15. In JO et al v Belgium (1417/05), the HRC stated that ‘the conduct of a privately hired defence lawyer in civil proceedings is not protected as such by any provision of the Covenant’.69 A minimum guarantee of competence for counsel in criminal trials is guaranteed in article 14(3)(d) [14.165], but it is unlikely that it arises with regard to private counsel [14.166]. [14.87]

MORAEL v FRANCE (207/86)

The author in this case was the managing director of a company that was in financial crisis. In subsequent civil proceedings to determine who was liable for the company’s debts, the author was ordered to pay some of the company’s debts. In the case before the HRC the author claimed he had not been given a fair hearing, as French bankruptcy law subjected directors in his position to a presumption of liability. The author also alleged that his liabilities were increased on appeal without his having a chance to challenge this increase. He made the following arguments: ¶2.1. With respect to article 14(1) of the Covenant, the author calls into question the French legal system, which, as it was applied to him, did not guarantee a fair hearing, in particular because there was no ‘equality of arms’ in the procedure whereby companies are placed under judicial supervision and because article 99 of Act No. 67–563 placed an unfair presumption of fault on company officers without requiring proof of their actual misconduct. In this connection, the author contends that the Court of Cassation wrongly interpreted the 68

At para 4.4.

69

At para 4.4.

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concept of due diligence by concluding that any fault committed by the author necessarily excluded diligence, even if he had not shown negligence in the exercise of his duties. The author claims that this excessively severe interpretation of ‘due diligence’ is discriminatory against company officials, for whom an error of judgement regarding economic developments is punished as if constituting negligence. Placing an obligation on him to achieve a desired result, the author argues, was tantamount to denying him any possibility of establishing that he had in fact exercised due diligence. The author claims that it is grossly unfair to hold him responsible for the company’s financial condition, which was already disastrous at the time he was appointed Managing Director and which he sought to remedy by diligent efforts that were finally frustrated by factors beyond his control, such as the refusal by the Inspectorate of Employment of staff retrenchment measures and the ensuing strikes. ¶2.2. Another alleged violation of article 14 (1), the author claims, consisted in the court’s consideration of a new and higher amount for the company’s liabilities without giving him an opportunity to challenge it. . . .

The State Party made the following arguments in reply: ¶4.4. In the view of the French Government, this presumption of liability attached to a company’s managers is not in conflict with the principle of a fair hearing, contrary to the contention of the author. Admittedly, the liability of the persons concerned may be invoked in this type of procedure without presentation of proof of fault on the part of the managers. But that is the case in any system of liability for risk or ‘objective’ liability. Furthermore, the existence of such a presumption instituted by the Act is not, in itself, in any way contrary to the rule of a fair hearing inasmuch as the proceedings take place in conditions that ensure the full enjoyment of his rights by the person concerned. What is more, in the case in question, this presumption is not irrefutable, for the managers in question can in fact absolve themselves of liability by proving by whatever means that they devoted all due energy and diligence to the management of the company’s affairs. The tribunal, itself supervised by the Court of Appeal, is free to evaluate such proof in the light of all the elements which had an influence on the behaviour of the managers involved.

The HRC held that there was no violation of article 14. In coming to this conclusion it made the following interpretation of the concept of a fair hearing: ¶9.3. The first question before the Committee is whether the author is a victim of a violation of article 14(1) of the Covenant because, as he alleges, his case did not receive a fair hearing within the meaning of that paragraph. The Committee notes in this connection that the paragraph in question applies not only to criminal matters but also to litigation concerning rights and obligations of a civil nature. Although article 14 does not explain what is meant by a ‘fair hearing’ in a suit at law (unlike paragraph 3 of the same article dealing with the determination of criminal charges), the concept of a fair hearing in the context of article 14 (1) of the Covenant should be interpreted as requiring a number of conditions, such as equality of arms, respect for the principle of adversary proceedings, preclusion of ex officio reformatio in pejus,70 and expeditious procedure. The facts of the case should accordingly be tested against those criteria. ¶9.4. At issue is the application of the third paragraph of the article of the Bankruptcy Law of 13 July 1967 that established a presumption of fault on the part of managers of companies 70

Ex officio worsening of an earlier verdict.

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placed under judicial supervision, by requiring them to prove that they had devoted all due energy and diligence to the management of the company’s affairs, failing which they could be held liable for the company’s losses. The author claims in this regard that the Court of Cassation had given too severe an interpretation of due diligence, one that amounted to denying him any possibility of demonstrating that he had exercised it. It is not for the Committee, however, to pass judgement on the validity of the evidence of diligence produced by the author or to question the court’s discretionary power to decide whether such evidence was sufficient to absolve him of any liability. As regards respect for the principle of adversary proceedings, the Committee notes that to its knowledge there is nothing in the facts concerning the proceedings to show that the author did not have the possibility of presenting evidence at his disposal or that the court based its decision on evidence admitted without being open to challenge by the parties. As principle of adversary proceedings had been ignored in that the Court of Appeal had increased the amount to be paid by the author, although the change had not been requested by the court-appointed administrator and had not been submitted to the parties for argument, the Committee notes that the Court of Appeal fixed the amounts to be paid by the author on the basis of the liabilities resulting from the operations of the procedure, as the court of first instance had decided; that such verification of the statement of liabilities had not been contested by the parties; and that the definitive amount, while equal to approximately 10 per cent of the company’s indebtedness, had been charged to the author individually, whereas the court of first instance had ordered payment jointly with other managers, which might have required the author to pay 40 per cent of the company’s indebtedness in case it proved impossible to recover the shares due from his co-debtors. In view of the above, it is to be doubted that there was an increase in the amount charged to the author or that the principle of adversary proceedings and preclusion of ex officio reformatio in pejus were ignored. . . .

Morael confirms that the placement of the burden of proof in civil cases on a defendant is permissible under article 14(1). Indeed, later on in Morael, the Committee explicitly endorsed the existence of strict liability in civil cases as a common feature of numerous judicial systems [14.122]. In contrast, one has a right to be presumed innocent in criminal cases in article 14(2). [14.88]

BEN SAID v NORWAY (767/97)

¶11.3. The right to a fair trial in a suit at law, guaranteed under article 14, paragraph 1, may require that an individual be able to participate in person in court proceedings. In such circumstances the State party is under an obligation to allow that individual to be present at the hearing, even if the person is a non-resident alien. In assessing whether the requirements of article 14, paragraph 1, were met in the present case, the Committee notes that the author’s lawyer did not request a postponement of the hearing for the purpose of enabling the author to participate in person; nor did instructions to that effect appear in the signed authorisation given to the lawyer by the author at the airport and subsequently presented by the lawyer to the judge at the hearing of the child custody case. In these circumstances, the Committee is of the view that it did not constitute a violation by the State party of article 14, paragraph 1, that the Oslo City Court did not on its own initiative, postpone the hearing in the case until the author could be present in person.

A stronger right to be tried in one’s own presence in criminal proceedings is found in article 14(3)(d). That provision did not apply in Ben Said, which concerned child custody proceedings.

Right to a Fair Trial [14.89]

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VERLINDEN v NETHERLANDS (1187/03)

In this case, part of the complaint related to the failure by the State’s Supreme Court, in a second appeal in civil proceedings, to issue a reasoned written decision.71 This article 14(1) claim was found to be inadmissible and the HRC stated the following: ¶7.7. As regards the author’s claim that the mere reference to Section 101a of the Judicial Organisation Act, in the Supreme Court’s decision of 6 January 1995 rejecting his appeal, violated his right to a reasoned judgment, the Committee observes that, while article 14, paragraph 1, may be interpreted as obliging courts to give reasons for their decisions, it cannot be interpreted as requiring a detailed answer to every argument advanced by a complainant. Thus, the need to ensure the effective operation of the judiciary may require courts, especially the highest courts of States parties, merely to endorse the reasons for the lower court’s decision in dismissing an appeal, so as to handle their caseload. The Committee recalls that the Supreme Court dismissed the author’s appeal, finding that he had failed to adduce any reasons which would lead to cassation of the decision of the Hague Court of Appeal of 9 September 1993. It thereby endorsed, at least implicitly, the reasoning of the Court of Appeal. In addition, the Supreme Court found that the author’s appeal did not give rise to any fundamental questions of law, as required by Section 101a of the Judicial Organisation Act. Against this background, the Committee considers that the author has failed to substantiate, for purposes of admissibility, that the Supreme Court’s decision was not sufficiently reasoned. This part of the communication is accordingly also inadmissible under article 2 of the Optional Protocol.

The HRC hints that article 14(1) may ground a right to reasoned decisions in civil trials. However, that right is diluted and maybe non-existent with regard to appeals. This is not surprising given the right to a civil appeal may not even exist within article 14(1), as indicated in IP v Finland (450/91) [14.47], and possible in Tiyagarajah v Sri Lanka (1523/06) and Mathioudakis v Greece (1572/07). EXPEDITIOUS HEARINGS

[14.90]

GENERAL COMMENT 32

¶27. An important aspect of the fairness of a hearing is its expeditiousness. While the issue of undue delays in criminal proceedings is explicitly addressed in paragraph 3 (c) of article 14, delays in civil proceedings that cannot be justified by the complexity of the case or the behaviour of the parties detract from the principle of a fair hearing enshrined in paragraph 1 of this provision. Where such delays are caused by a lack of resources and chronic under-funding, to the extent possible supplementary budgetary resources should be allocated for the administration of justice.

[14.91]

MUÑOZ HERMOZA v PERU (203/86)

In this case the author was an ex-sergeant of the Guardia Civil (police) who had been dismissed from service for insulting a superior. The author unsuccessfully 71

See also Jessop v New Zealand (1758/08) [14.197].

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sought, over a ten-year period, reinstatement before various administrative and judicial authorities. The HRC held that there was a breach of article 14: ¶11.3. With respect to the requirement of a fair hearing as stipulated in article 14, paragraph 1, of the Covenant, the Committee notes that the concept of a fair hearing necessarily entails that justice be rendered without undue delay. In this connection the Committee observes that the administrative review in the Muñoz case was kept pending for seven years and that it ended with a decision against the author based on the ground that he had started judicial proceedings. A delay of seven years constitutes an unreasonable delay. Furthermore, with respect to the judicial review, the Committee notes that the Tribunal of Constitutional Guarantees decided in favour of the author in 1986 and that the State party has informed the Committee that judicial remedies were exhausted with that decision. . . . However, the delays in implementation have continued and two and a half years after the judgement of the Tribunal of Constitutional Guarantees, the author has still not been reinstated in his post. This delay, which the State party has not explained, constitutes a further aggravation of the violation of the principle of a fair hearing. The Committee further notes that on 24 September 1987 the Cuzco Civil Chamber, in pursuance of the decision of the Tribunal of Constitutional Guarantees, ordered that the author be reinstated; subsequently, in a written opinion dated 7 March 1988, the Public Prosecutor declared that the decision of the Cuzco Civil Chamber was valid and that the author’s action of amparo was well founded. But even after these clear decisions, the Government of Peru has failed to reinstate the author. Instead, yet another special appeal, this time granted ex officio in ‘Defence of the State’ . . . has been allowed, which resulted in a contradictory decision by the Supreme Court of Peru on 15 April 1988, declaring that the author’s action of amparo had not been lodged timely and was therefore inadmissible. This procedural issue, however, had already been adjudicated by the Tribunal of Constitutional Guarantees in 1986, before which the author’s action is again pending. Such a seemingly endless sequence of instances and the repeated failure to implement decisions are not compatible with the principle of a fair hearing.72

[14.92]

NT v CANADA (1952/02)

This case concerned delays in child custody proceedings: ¶8.10. In the present case, the child was four years old at the time of apprehension in August 1997, and seven years old at the time of the child protection trial in June 2000. As a consequence of the delayed proceedings, the child’s psychologist warned that she was at risk of depression and of developing attachment disorder and that she found herself in a ‘state of limbo’, as she did not know where she belonged. Moreover, the judge partly based his finding on the fact that the child had formed very strong bonds with her foster parents, who wanted to adopt her, and that she wished to remain with them. The Committee notes that the child initially wanted to return to her mother’s care, and that her wish only changed over time. ¶8.11. It further transpires from the file that the author changed lawyers various times and filed numerous court motions, which delayed the proceedings. She was also found to be a vexatious litigant who, by her numerous motions and appeals, was sabotaging the timetable of the trial. However, these were all motions aimed at reinstating access of the author to 72 See also Mukunto v Zambia (768/97), where the author’s compensation proceedings had not been resolved after 18 years, constituting a breach of art 14(1) (para 6.4).

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her child. The Committee considers that bringing a motion for access should not have as a necessary consequence the delaying of the main trial. In addition, the delay cannot be attributable only to the author. The Committee for example notes that it was on the CCAS’ request that the PGT was appointed as the author’s representative and that a consequence of this appointment was the postponement of the trial. The Committee finds that in view of the young age of the child, the delay of nearly three years between the placement of the child in CCAS’ care and the trial on the child protection application, which cannot solely be imputed to the author, was undue and in violation of the author’s and her daughter’s rights to an expeditious trial, as guaranteed by article 14, paragraph 1.

[14.93]

EB v NEW ZEALAND (1368/05)

This case concerned delays in child access proceedings [20.40]. ¶9.2. As to the claim of undue delay under article 14, paragraph 1, the Committee recalls its jurisprudence that the right to a fair trial guaranteed by this provision includes the expeditious rendering of justice, without undue delay. The Committee recalls that the issue of delay must be assessed against the overall circumstances of the case, including an assessment of the factual and legal complexity of the case. The Committee notes, in this respect, that the resolution of the author’s application for access with respect to the older two children, S. and C., lasted from the application in November 2000 until the Court of Appeal’s refusal of leave in April 2004, a period of 3 years and 4 months. Within this timeframe, the allegations of abuse made against the author occupied the police from May 2001, when the author’s wife made a statement to police, to January 2003, when the police decided not to prosecute—a period of one year and 8 months. The Committee notes, with respect to the youngest child, E., that the access application also commencing November 2000 was, at least as of September 2006 (the most recent information before the Committee) still unresolved. In this connection, the police investigation of the second set of abuse claims lodged after the author’s success in the High Court ran from April to September 2004, a period of six months. ¶9.3. The Committee refers to its constant jurisprudence that ‘the very nature of custody proceedings or proceedings concerning access of a divorced parent to [the parent’s] children requires that the issues complained of be adjudicated expeditiously’. The failure to so ensure may readily itself dispose of the merits of application, notably when—as in the present case— the children are of young age, and irreparably harm the interests of a non-custodial parent. The onus is thus on the State party to ensure that all State actors involved in the resolution of such issues, be they the courts, the police, child welfare authorities and others, are sufficiently well resourced and structured and establish their priorities in order to ensure sufficiently prompt resolution of such proceedings and safeguard the Covenant rights of the parties. ¶9.4. In the present case, the State party has not demonstrated to the Committee the justification for the protracted delay in the resolution of the both sets of applications. In particular, the State party has not shown the necessity of police investigations of the extended period of time that occurred in this case in respect of allegations which, while certainly serious, were not legally complex and which at the factual level involved assessment of oral testimony of a very limited number of persons. The procurement of psychological reports to assist the court has also been particularly prolonged. The Committee notes further the concerns expressed by the domestic courts as to the passage of time in the proceedings. It follows, given the priority accorded to resolution of such matters and in light of the

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Committee’s jurisprudence in comparable cases (see Fei), that the author’s right to an expeditious trial under article 14, paragraph 1, of the Covenant was violated with respect to the application concerning S. and C., and continue to be violated given the still outstanding (as of September 2006) resolution of the application concerning E.

[14.94] The guarantee of expeditious hearings was also breached in Fei v Colombia (514/92) and González del Río v Peru (263/87). In Perterer v Austria (1015/01), a 57-month delay in adjudicating ‘a matter of minor complexity’ (civil service disciplinary proceedings) breached Article 14(1).73 Delays in a citizenship application breached article 14(1) in Gonzalez v Guyana (1246/04).74 Delays in the consideration of the filing fee for a case breached article 14(1) in Pimentel v Philippines (1320/04).75 Delays in proceedings concerning the restoration of wrongly removed tenancy rights breached article 14(1) in Vojnovi v Croatia (1510/06).76 In contrast, a delay of over six years in the resolution of a claim for refugee status did not breach article 14(1) in Dranichnikov v Australia (1291/04).77 [14.95] In Casanovas v France (441/90), the relevant proceedings concerned the author’s challenge to his dismissal from the French civil service. No breach of article 14(1) arose from the period of time, two years and nine months, that elapsed between ‘the submission of the complaint of irregular dismissal to the [final] decision of reinstatement’.78 In Morael v France (207/86), the HRC agreed that the length of time taken to decide the trial (just under four years) was reasonable given ‘the circumstances and . . . the complexity of a bankruptcy case’.79 In Deisl v Austria (1060/02), the HRC found that the length of time (11 years and 8 months) concerning a planning dispute did not breach article 14(1), bearing in mind the complexity of the issue, the number of different proceedings that took place, suspension orders which benefited the complainants, successful appellate proceedings, and delays caused by the complainants’ own behaviour.80 [14.96] In Concluding Observations on Croatia, the HRC stated:81 ¶16. The Committee is deeply concerned by the heavy backlog of cases awaiting hearing before the Croatian courts,82 particularly in civil matters. The delays in the administration of justice are apparently compounded by the application of the statute of limitations to suspend or discontinue cases that, for reasons often not attributable to the litigant in question, have not been brought on for hearing. While acknowledging the State party’s admission that the administration of justice is in urgent need of redress, the Committee stresses that the State party should ensure compliance with all the requirements of article 14 of the Covenant. To this end, it urges the State

74 At para 10.7. See also Lederbauer v Austria (1454/06). At para 14.2. 76 At para 9.2. At para 8.4. 77 78 At para 7.2. At para 7.4. 79 80 At para 9.4. At para 11.6. 81 (2001) UN doc CCPR/CO/71/HRV; see also Concluding Observations on Brazil (1996) UN doc CCPR/C/79/Add.66, para 24. 82 See also Concluding Observations on The Former Yugoslav Republic of Macedonia, (2008) UN doc CCPR/C/MKD/CO/2, para 17. 73 75

Right to a Fair Trial

473

party to accelerate its reform of the judicial system, inter alia through simplification of procedures, training of judges and court staff in efficient case management techniques. PUBLIC HEARINGS

[14.97]

GENERAL COMMENT 32

¶28. All trials in criminal matters or related to a suit at law must in principle be conducted orally and publicly.83 The publicity of hearings ensures the transparency of proceedings and thus provides an important safeguard for the interest of the individual and of society at large. Courts must make information regarding the time and venue of the oral hearings available to the public and provide for adequate facilities for the attendance of interested members of the public, within reasonable limits, taking into account, inter alia, the potential interest in the case and the duration of the oral hearing. The requirement of a public hearing does not necessarily apply to all appellate proceedings which may take place on the basis of written presentations, or to pre-trial decisions made by prosecutors and other public authorities. ¶29. Article 14, paragraph 1, acknowledges that courts have the power to exclude all or part of the public for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would be prejudicial to the interests of justice. Apart from such exceptional circumstances, a hearing must be open to the general public, including members of the media, and must not, for instance, be limited to a particular category of persons. Even in cases in which the public is excluded from the trial, the judgment, including the essential findings, evidence and legal reasoning must be made public, except where the interest of juvenile persons otherwise requires, or the proceedings concern matrimonial disputes or the guardianship of children.

[14.98]

RODRÍGUEZ OREJUELA v COLOMBIA (848/99)

¶7.3. The author maintains that the proceedings against him were conducted only in writing, excluding any hearing, either oral or public. The Committee notes that the State party has not refuted these allegations but has merely indicated that the decisions were made public. The Committee observes that in order to guarantee the rights of the defence enshrined in article 14, paragraph 3, of the Covenant, in particular those contained in subparagraphs (d) and (e), all criminal proceedings must provide the person charged with the criminal offence the right to an oral hearing, at which he or she may appear in person or be represented by counsel and may bring evidence and examine the witnesses. Taking into account the fact that the author did not have such a hearing during the proceedings that culminated in his conviction and sentencing, the Committee finds that there was a violation of the right of the author to a fair trial in accordance with article 14 of the Covenant.84

[14.99] In RM v Finland (301/88), the HRC confirmed that appellate proceedings, as opposed to initial trials such as that in Rodríguez Orejuela, may take place 83 84

See eg Guerra de la Espriella v Colombia (1623/07), para 9.3. See also Barney v Colombia (1298/04).

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on the basis of written presentations, so long as proceedings and documents are open to the public [14.191]. [14.100] In Kavanagh v Ireland (819/98), the author complained, inter alia, about the secrecy of the decision by the Director of Public Prosecutions to try him in a special criminal court.85 The HRC stated that the right to a public hearing ‘does not apply to pre-trial decisions made by prosecutors and public authorities’.86 [14.101]

POLAY CAMPOS v PERU (577/94)

The communication was submitted by the alleged victim’s wife, concerning his trial by a panel of ‘faceless’ or anonymous judges. The HRC made the following findings: ¶8.8. As to Mr Polay Campos’ trial and conviction on 3 April 1993 by a special tribunal of ‘faceless judges’, no information was made available by the State party, in spite of the Committee’s request to this effect in the admissibility decision of 15 March 1996. . . . [S]uch trials by special tribunals composed of anonymous judges are incompatible with article 14 of the Covenant. It cannot be held against the author that she furnished little information about her husband’s trial: In fact, the very nature of the system of trials by ‘faceless judges’ in a remote prison is predicated on the exclusion of the public from the proceedings. In this situation, the defendants do not know who the judges trying them are and unacceptable impediments are created to their preparation of their defence and communication with their lawyers. Moreover, this system fails to guarantee a cardinal aspect of a fair trial within the meaning of article 14 of the Covenant: that the tribunal must be, and be seen to be, independent and impartial. In a system of trial by ‘faceless judges’, neither the independence nor the impartiality of the judges is guaranteed, since the tribunal, being established ad hoc, may comprise serving members of the armed forces. In the Committee’s opinion, such a system also fails to safeguard the presumption of innocence, which is guaranteed by article 14, paragraph 2. In the circumstances of the case, the Committee concludes that paragraphs 1, 2 and 3 (b) and (d) of article 14 of the Covenant were violated.

The HRC’s condemnation of faceless judges was repeated in Arredondo v Peru (688/96), Gutiérrez Vivanco v Peru (678/96), Gómez Casafranca v Peru (981/01), and General Comment 32.87 [14.102] Just as faceless judges are unacceptable, so are ‘anonymous witnesses’. In Concluding Observations on the Netherlands, the HRC stated:88 ¶12. The Committee is gravely concerned at the scope afforded for the use of anonymous witnesses in the State party’s criminal procedure. The Committee notes that use is made of hearing witnesses in the preliminary examination, prior to the trial, without the accused, counsel or the prosecutor being present. The identity is accordingly known only to the examining magistrate and is subsequently unknown even to the trial judge. While not excluding the use of anonymous witnesses in appropriate instances, the Committee considers that this practice is too broad and that it raises difficulties in terms of article 14 of the Covenant. 85

86 See also [23.124]. At para 10.4. See also General Comment 32, para 23. 88 (2001) UN doc CCPR/CO/72/NET; see also Concluding Observations on Colombia (1997) UN doc CCPR/C/79/Add.75, para 21. 87

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The State party should make greater efforts to safeguard the right of a defendant to a fair trial through means which, while protecting witness identity in appropriate and necessary cases, provide a greater opportunity for the evidence to be tested and contested. The State party should also provide further information on how a decision that a witness should be anonymous is reached, and what appeals against or reviews of such a decision are possible. The State party should show why ordinary means of protecting witnesses, such as police security or witness protection and relocation programmes, are considered inadequate in cases where anonymity is allegedly required on account of threats to the witness.

It may be noted that article 68 of the Rome Statute of the International Criminal Court appears to permit the anonymity of a witness, where necessary for that witness’s protection, so long as ‘[s]uch measures are exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused to a fair and impartial trial’.89 [14.103]

VAN MEURS v THE NETHERLANDS (215/86)

This case concerned the provision of sufficient facilities and information for onlookers at trials. ¶6.1. With respect to the author’s claim related to the publicity of the sub-district court hearing, the Committee considers that if labour disputes are argued in oral hearing before a court, they fall within the requirement, in article 14, paragraph 1, that suits at law be held in public. That is a duty upon the State that is not dependent on any request, by the interested party, that the hearing be held in public. Both domestic legislation and judicial practice must provide for the possibility of the public attending, if members of the public so wish. In the instant case, the Committee notes that while the old article 1639w of the Civil Code of the Netherlands was silent on the question of the public or non-public nature of the proceedings, it appears that in practice the public did not attend. It is far from clear in this case whether the hearing was or was not held in camera. The author’s communication does not state that he or his counsel formally requested that the proceedings be held in public, or that the sub-district court made any determination that they be held in camera. On the basis of the information before it, the Committee is unable to find that the proceedings in the author’s case were incompatible with the requirement of a ‘public hearing’ within the meaning of article 14, paragraph 1. ¶6.2. The Committee observes that courts must make information on time and venue of the oral hearings available to the public and provide for adequate facilities for the attendance of interested members of the public, within reasonable limits, taking into account, e.g., the potential public interest in the case, the duration of the oral hearing and the time the formal request for publicity has been made. Failure of the court to make large courtrooms available does not constitute a violation of the right to a public hearing, if in fact no interested member of the public is barred from attending an oral hearing.

[14.104] States Parties bear the burden of proof in justifying in camera trials.90 Russia failed to discharge that burden in Khoroshenko v Russian Federation (1304/04), where the relatives of the author and his fellow accused were excluded from the trial, so a

89 90

Rome Statute of the International Criminal Court, art 68(5). Estrella v Uruguay (74/80), para 10.

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breach of article 14(1) was found.91 In ZP v Canada (341/88), the author complained that his trial on charges of rape was not ‘public’.92 The State Party replied that ‘the public may be excluded from all or part of a trial for reasons of morals—a request frequently made and granted in sexual abuse cases’.93 The HRC found the author’s complaint was not sufficiently substantiated.94

Article 14(2)—The Presumption of Innocence [14.105]

GENERAL COMMENT 32

¶30. According to article 14, paragraph 2 everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. The presumption of innocence, which is fundamental to the protection of human rights, imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of a criminal act must be treated in accordance with this principle. It is a duty for all public authorities to refrain from prejudging the outcome of a trial, e.g. by abstaining from making public statements affirming the guilt of the accused. Defendants should normally not be shackled or kept in cages during trials or otherwise presented to the court in a manner indicating that they may be dangerous criminals. The media should avoid news coverage undermining the presumption of innocence. Furthermore, the length of pre-trial detention should never be taken as an indication of guilt and its degree. The denial of bail or findings of liability in civil proceedings do not affect the presumption of innocence.

[14.106]

OWEN v FRANCE (1620/07)

The author was a British national who co-founded a company in France, in which he held an honorary unpaid position. He was convicted of making a false statement in failing to declare that position while collecting unemployment benefits for a period in France. He claimed a breach of article 14(2). ¶9.5. Concerning the claim under article 14, paragraph 2, the Committee notes the author’s argument that it was up to ASSEDIC [the French Association for Industrial and Commercial Employment] to prove that the managerial position he held prohibited him from looking for full-time work, and that by reversing the burden of proof the Criminal Court of Grasse violated the principle of the presumption of innocence. The Committee notes the State party’s argument that the author was accused of fraud or making a false statement in order to obtain unemployment benefits and that the charges against the author therefore constituted an offence under article L. 365–1 of the French Labour Code. The Committee notes that in its judgement of 22 June 2001, the criminal court stated that in his ASSEDIC application of 31 January 1996, the author had replied ‘No’ to the question ‘Are you currently an agent (mandataire) of a company, group or association?’; that under articles L. 351 et seq. of the Labour Code, in order to receive unemployment benefits, it is necessary to have been unemployed and to be engaged in a full-time, effective job search; 91 93

At para 9.11. At para 4.6.

92

At para 3.3(j). At para 5.6.

94

Right to a Fair Trial

477

that the author has not proved that during the period in question, his position as manager of Riviera Communication allowed him to engage in a full-time, effective job search; and that consequently he must have been aware that his sworn statement on 31 January 1996 had been false. ¶9.6. The Committee recalls its general comment No. 32 on article 14, which states that the presumption of innocence, which is fundamental to the protection of human rights, imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of a criminal act must be treated in accordance with this principle. In this case, it is undeniable that the author was not given a proper defence owing to his lawyer’s lack of diligence. Nor has it been denied that during the hearing of 25 May 2001, the author was represented not by his counsel, but by another who was not authorized to do so; and that it was during this hearing that the content of the summons to appear before the court, and thus of the charges against the author, was explained in detail. At this hearing, the criminal court simply stated that the author had failed to prove that he had not violated articles L. 351 et seq. of the Labour Code, without offering any evidence in support of this accusation. In view of the limited opportunity for defence available to the author, the Committee considers that the State party’s courts placed a disproportionate burden of proof on the author and did not prove beyond a reasonable doubt that he was guilty of the offences of which he was accused. The Committee therefore considers that the State party has violated article 14, paragraph 2.

[14.107]

GRIDIN v RUSSIAN FEDERATION (770/97)

As detailed below, the author complained that public assertions of his guilt by high-ranking law enforcement officials breached article 14(2).95 The HRC agreed: ¶3.5. The author claims that his right to presumption of innocence was violated. Between 26 and 30 November 1989 radio stations and newspapers announced that the author was the feared ‘lift-boy’ murderer, who had raped several girls and murdered three of them. Also, on 9 December 1989, the head of the police announced that he was sure that the author was the murderer, and this was broadcasted on television. Furthermore, the author alleges that the investigator pronounced the author guilty in public meetings before the court hearing and called upon the public to send prosecutors. As a consequence, the author states that at his trial ten social prosecutors were present whereas he was defended by one social defender, who was later forced to leave the court room. . . . ¶8.3. With regard to the allegation of a violation of the presumption of innocence, including public statements made by high ranking law enforcement officials portraying the author as guilty which were given wide media coverage, the Committee notes that the Supreme Court referred to the issue, but failed to specifically deal with it when it heard the author’s appeal. The Committee refers to its General Comment No 13 on article 14, where it has stated that: ‘It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial’. In the present case the Committee considers that the authorities failed to exercise the restraint that article 14, paragraph 2, requires of them and that the author’s rights were thus violated. 95 See also eg Mwamba v Zambia (1520/06), para 6.5; Marinich v Belarus (1502/06), para 10.6; Kulov v Kyrgyzstan (1369/05), para 8.7; Engo v Cameroon (1397/05), para 7.6; Larrañaga v Philippines (1421/05), para 7.4.

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[14.108] In McTaggart v Jamaica (749/97), the author also complained that adverse publicity had deprived him of a fair trial. As the adverse publicity occurred in another State besides Jamaica (Canada), no violation was found.96 [14.109]

SAIDOV v UZBEKISTAN (964/01)

¶6.6. The author further claimed that her husband’s right to be presumed innocent until proved guilty has been violated, due to the extensive and adverse pre-trial coverage by state—directed media which designated the author and his co-charged as criminals, thereby negatively influencing the subsequent court proceedings. In the absence of information or objection from the State party in this respect, the Committee decides that due weight must be given to the author’s allegations, and concludes that Mr. Saidov’s rights under article 14, paragraph 2, have been violated.

The HRC pointed out that the media in this case was ‘state-directed’. It is submitted that adverse coverage by private media outlets can breach the right to a fair trial if a State party should fail to appropriately regulate trial reporting, as indicated in General Comment 32 [14.105]. [14.110] In Karimov et al v Tajikistan (1108 and 1121/02), the degrading presentation of two accused persons (handcuffs and a cage) at trial, along with prejudicial comments in court by a high ranking official, were found to breach the right to a presumption of innocence. There was no evidence that they were actually presumed guilty by the court, but the substantive actions within the court were enough to manifest a breach of this right.97 Similarly, in Concluding Observations on Benin, the HRC stated: ¶21. The Committee is of the view that the requirement that pre-trial detainees and convicts must wear jackets indicating their place of detention constitutes degrading treatment, and that the requirement that pre-trial detainees must wear such jackets during their trial may infringe the principle of presumption of innocence (articles 7 [9.51] and 14 of the Covenant).

[14.111]

CAGAS, BUTIN, and ASTILLERO v PHILIPPINES (788/97)

¶7.3. With regard to the allegation of violation of article 14 (2), on account of the denial of bail, the Committee finds that this denial did not a priori affect the right of the authors to be presumed innocent. Nevertheless, the Committee is of the opinion that the excessive period of preventive detention, exceeding nine years, does affect the right to be presumed innocent and therefore reveals a violation of article 14 (2).

[14.112] Article 14(2) only applies to criminal proceedings and does not apply to civil proceedings, as is demonstrated in the following case. MORAEL v FRANCE (207/86) The author in this case argued that the civil findings of his liability for company debts [14.87] breached article 14(2): 96

At para 8.4. See also Chadee v Trinidad and Tobago (813/98).

97

At para 7.4.

Right to a Fair Trial

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¶2.3. With respect to article 14(2), the author contends that article 99 of Act No. 67–563 had not only a civil but also a penal character, and he refers in this connection to the fact that the Public Prosecutor (Ministere public) was heard during the proceedings before the Tribunal of Commerce of Dunkirk. He further contends that the decision by the Court of Appeal ordering him to pay FF 3 million francs amounts to a penal sanction. He therefore claims that he should have enjoyed the presumption of innocence.

The HRC disagreed with the author’s classification of his punishment as ‘penal’: ¶9.5. As to the complaint that the action for coverage of liabilities brought against the author violated the principle of presumption of innocence laid down in article 14(2) of the Covenant, the Committee points out that that provision is applicable only to persons charged with a criminal offence. Article 99 of the former bankruptcy law entailed a presumption of responsibility on the part of company managers in the absence of proof of their diligence. But that presumption did not relate to any charge of a criminal offence. On the contrary, it was a presumption relating to a system of liability for risk resulting from a person’s activities—one that is well known in private law, even in the form of absolute or objective liability ruling out all evidence to the contrary. In the situation under consideration, liability was established in favour of the creditors and the amounts charged to the managers corresponded to the damages they had suffered and were to be paid in order to cover the company’s liabilities. The object of article 99 of the Bankruptcy Act was to compensate creditors but it also entailed other penalties which, however, were civil-law and not criminal-law penalties. The provision concerning the presumption of innocence in article 14 (2) cannot therefore be applied in the case under consideration. That conclusion cannot be affected by the allegation that the provision of article 99 of the Bankruptcy Act was subsequently modified by elimination of the presumption of fault, considered unjust from the point of view of the material settlement of liability, for this circumstance does not of itself imply that the earlier provision contravened the above-mentioned provisions of the Convention.

Similarly in WJH v The Netherlands (408/90)98 and WBE v The Netherlands (432/90)99 the HRC held that article 14(2) does not apply to proceedings for compensation for an alleged miscarriage of justice. In Mathioudakis v Greece (1572/07), the HRC confirmed that there was no right to the presumption of innocence in administrative proceedings relating to the revocation of a university degree due to alleged forgery.

Article 14(3)(a)—The Right to be Informed of the Charge [14.113]

GENERAL COMMENT 32

¶31. The right of all persons charged with a criminal offence to be informed promptly and in detail in a language which they understand of the nature and cause of criminal charges brought against them, enshrined in paragraph 3 (a), is the first of the minimum guarantees in criminal proceedings of article 14. This guarantee applies to all cases of criminal charges, including those of persons not in detention, but not to criminal investigations preceding the laying of charges.100 Notice of the reasons for an arrest is separately guaranteed 98 100

At para 6.2. See Khachatrian v Armenia (1056/02), para 6.4.

99

At para 6.6.

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in article 9, paragraph 2 of the Covenant. The right to be informed of the charge ‘promptly’ requires that information be given as soon as the person concerned is formally charged with a criminal offence under domestic law, or the individual is publicly named as such. The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally—if later confirmed in writing—or in writing, provided that the information indicates both the law and the alleged general facts on which the charge is based. In the case of trials in absentia, article 14, paragraph 3 (a) requires that, notwithstanding the absence of the accused, all due steps have been taken to inform accused persons of the charges and to notify them of the proceedings.

[14.114] Article 14(3)(a) requires one to be informed of one’s charge once the authorities have decided to issue a criminal charge. It may be distinguished from article 9(2), which applies before the issue of a charge: it requires people to be informed of the reason for their arrest in connection with a criminal charge.101 One may also note that the requirements of article 14(3)(a) are ‘more precise’ than those for article 9(2).102 It is enough for an arrested person to be aware of the reasons for his/her arrest under article 9(2), whereas one must always be formally charged to satisfy article 14(3)(a).103 [14.115]

KURBANOV v TAJIKISTAN (1096/02)

¶7.3. . . . [T]he documents submitted by the State party show that Mr. Kurbanov was, after being detained since 5 May 2001 on other grounds, informed on 11 June 2001 that he was suspected of the killings of 29 April 2001 but charged with these crimes only on 30 July 2001. During his detention from 5 May 2001 onwards, he was, except for the last week starting on 23 July 2001, without the assistance of a lawyer. The Committee takes the view that the delay in presenting the charges to the detained author and in securing him legal assistance affected the possibilities of Mr. Kurbanov to defend himself, in a manner that constitutes a violation of article 14, paragraph 3 (a), of the Covenant.

Article 14(3)(b)—Preparation of the Defence [14.116]

GENERAL COMMENT 32

¶32. Subparagraph 3 (b) provides that accused persons must have adequate time and facilities for the preparation of their defence and to communicate with counsel of their own choosing. This provision is an important element of the guarantee of a fair trial and an application of the principle of equality of arms. In cases of an indigent defendant, communication with counsel might only be assured if a free interpreter is provided during the pre-trial and trial phase. . . .

[14.117]

GRIDIN v RUSSIAN FEDERATION (770/97)

¶8.5. With respect to the allegation that the author did not have a lawyer available to him for the first 5 days after he was arrested, the Committee notes that the State party has See Kelly v Jamaica (253/87) [11.48]. McLawrence v Jamaica (702/96), para 5.9. 103 See also Vicente et al v Colombia (612/95), para 8.7. 101 102

Right to a Fair Trial

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responded that the author was represented in accordance with the law. It has not, however, refuted the author’s claim that he requested a lawyer soon after his detention and that his request was ignored. Neither has it refuted the author’s claim that he was interrogated without the benefit of consulting a lawyer after he repeatedly requested such a consultation. The Committee finds that denying the author access to legal counsel after he had requested such access and interrogating him during that time constitutes a violation of the author’s rights under article 14, paragraph 3 (b). Furthermore, the Committee considers that the fact that the author was unable to consult with his lawyer in private, allegation which has not been refuted by the State party, also constitutes a violation of article 14, paragraph 3 (b) of the Covenant.

Numerous cases have confirmed the Gridin principle that legal assistance must be available during pre-trial procedures including periods of police questioning.104 Furthermore, in Concluding Observations on the United Kingdom, the HRC expressed concern over laws which permitted delays in access to a lawyer under anti-terrorism legislation for periods of up to 48 hours if police deemed that earlier access would interfere with their case; the HRC called for a guarantee of ‘immediate access to a lawyer’ for all persons arrested or detained on criminal charges including terrorist suspects.105 WHAT IS ‘ADEQUATE TIME’?

[14.118]

GENERAL COMMENT 32

¶32. . . . What counts as ‘adequate time’ depends on the circumstances of each case. If counsel reasonably feel that the time for the preparation of the defence is insufficient, it is incumbent on them to request the adjournment of the trial. A State party is not to be held responsible for the conduct of a defence lawyer, unless it was, or should have been, manifest to the judge that the lawyer’s behaviour was incompatible with the interests of justice. There is an obligation to grant reasonable requests for adjournment, in particular, when the accused is charged with a serious criminal offence and additional time for preparation of the defence is needed.

[14.119]

SMITH v JAMAICA (282/88)

¶10.4. As to the author’s claims that he was not allowed adequate time to prepare his defence and that, as a result, a number of key witnesses for the defence were not traced or called to give evidence, the Committee recalls its previous jurisprudence that the right of an accused person to have adequate time and facilities for the preparation of his defence is an important element of the guarantee of a fair trial and an emanation of the principle of equality of arms. . . . The determination of what constitutes ‘adequate time’ requires an assessment of the circumstances of each case. In the instant case, it is uncontested that the trial defence was prepared on the first day of the trial. The material before the Committee reveals that one of the court appointed lawyers requested another lawyer to replace him. Furthermore, another attorney assigned to represent the author withdrew the day prior to 104 See eg Smartt v Guyana (867/99), para 6.3; Lyashkevich v Uzbekistan (1552/07), para 9.4; Khuseynov and Butaev v Tajikistan (1263–4/-4), para 8.4. Cf Levinov v Belarus (1812/08), para 8.3. 105 (2008) UN doc CCPR/C/GBR/CO/6, para 19. See also Concluding Observations on the Netherlands (2009) UN doc CCPR/C/NLD/CO/4, para 11.

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The ICCPR

the trial; when the trial was about to begin at 10 a.m., the author’s counsel asked for a postponement until 2 p.m., so as to enable him to secure professional assistance and to meet with his client, as he had not been allowed by the prison authorities to visit him late at night the day before. The Committee notes that the request was granted by the judge, who was intent on absorbing the backlog on the court’s agenda. Thus, after the jury was empanelled, counsel had only four hours to seek an assistant and to communicate with the author, which he could only do in a perfunctory manner. This, in the Committee’s opinion, is insufficient [time] to prepare adequately the defence in a capital case. There is also, on the basis of the information available, the indication that this affected counsel’s possibility of determining which witnesses to call. In the Committee’s opinion, this constitutes a violation of article 14, paragraph 3(b), of the Covenant.

[14.120]

CHAN v GUYANA (913/00)

¶6.3. The Committee considers that in a capital case, where the defence lawyer is absent on the first day of the trial, when he is being appointed as legal aid counsel for the accused and, through his representative, requests adjournment of the trial, the Court must ensure that such adjournment provides the accused with sufficient time to prepare his defence together with his lawyer. It should have been manifest to the judge in a capital case that counsel’s request for an adjournment of the trial for only two week days, during which he was engaged in another case, was not compatible with the interests of justice, since it did not provide the author with adequate time and facilities to prepare his defence. In the light of this and in the absence of an explanation by the State party, the Committee concludes that the author was not effectively represented at trial, in violation of article 14, paragraph 3 (b) and (d), of the Covenant.106

[14.121]

SAWYERS, MCLEAN, and MCLEAN v JAMAICA (226, 256/87)

In this case, the Committee noted that:107 ¶13.6. . . . The determination of what constitutes ‘adequate time’ depends on an assessment of the circumstances of each case. While it is uncontested that none of the accused met with their lawyers more than twice prior to trial, the Committee cannot conclude that the lawyers were placed in a situation where they were unable properly to prepare the case for the defence. In particular, material before the Committee does not reveal that an adjournment was requested on grounds of insufficient time, nor has it been argued that the judge would have denied an adjournment. . . .

In a number of other cases, the HRC denied a breach of article 14(3)(b) where the accused had not asked for an adjournment.108 Failure to request an adjournment is perhaps analogous to a failure to exhaust local remedies for which the State cannot be held responsible.

106 See also eg Larrañaga v Philippines (1421/05), para 7.5; Phillip v Trinidad and Tobago (594/92), para 7.2. 107 See also Grant v Jamaica (353/88), para 8.4. 108 See eg Wright v Jamaica (349/1989), para 8.4; Henry v Jamaica (230/87), para 8.2; Thomas v Jamaica (272/88), para 11.4.

Right to a Fair Trial

483

WHAT ARE ‘ADEQUATE FACILITIES’?

[14.122]

GENERAL COMMENT 32

¶33. ‘Adequate facilities’ must include access to documents and other evidence; this access must include all materials that the prosecution plans to offer in court against the accused or that are exculpatory. Exculpatory material should be understood as including not only material establishing innocence but also other evidence that could assist the defence (e.g. indications that a confession was not voluntary). In cases of a claim that evidence was obtained in violation of article 7 of the Covenant, information about the circumstances in which such evidence was obtained must be made available to allow an assessment of such a claim. If the accused does not speak the language in which the proceedings are held, but is represented by counsel who is familiar with the language, it may be sufficient that the relevant documents in the case file are made available to counsel.

[14.123]

YASSEEN and THOMAS v REPUBLIC of GUYANA (676/96)

¶7.10. With regard to the missing diaries and notebooks, the Committee notes that the authors claim that these may have contained exculpatory evidence. The State party has failed to address this allegation. In the absence of any explanation by the State party, the Committee considers that due weight must be given to the authors’ allegations, and that the failure to produce at the last trial (1992) police documents which were produced at the first trial (1988) and which may have contained evidence in favour of the authors, constitutes a violation of article 14, paragraph 3, (b) and (e), since it may have impeded the authors in preparation of their defence.

[14.124] In Thomas v Jamaica (532/93), the State Party failed to provide the author with legal aid in a capital case, and also failed to provide him with a copy of the confession of another person which would exonerate him. The HRC found a breach of article 14(3)(d) with regard to the State’s failure to provide the accused with legal aid to investigate the matter. The failure to hand over the confession should have constituted a separate violation of article 14(3)(b). [14.125]

HARWARD v NORWAY (451/91)

¶9.4. Article 14 of the Covenant protects the right to a fair trial. An essential element of this right is that an accused must have adequate time and facilities to prepare his defence, as is reflected in paragraph 3(b) of article 14. Article 14, however, does not contain an explicit right of an accused to have direct access to all documents used in the preparation of the trial against him in a language he can understand.109 The question before the Committee is whether, in the specific circumstances of the author’s case, the failure of the State party to provide written translations of all the documents used in the preparation of the trial has violated Mr Harward’s right to a fair trial, more specifically his right under article 14, paragraph 3(b), to have adequate facilities to prepare his defence. ¶9.5. In the opinion of the Committee, it is important for the guarantee of fair trial that the defence has the opportunity to familiarise itself with the documentary evidence against an accused. However, this does not entail that an accused who does not understand the language used in court, has the right to be furnished with translations of all relevant documents 109

See also Concluding Observations on Poland (2010) UN doc CCPR/C/POL/CO/6, para 21.

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The ICCPR

in a criminal investigation, provided that the relevant documents are made available to his counsel. The Committee notes that Mr Harward was represented by a Norwegian lawyer of his choice, who had access to the entire file, and that the lawyer had the assistance of an interpreter in his meetings with Mr Harward. Defence counsel therefore had opportunity to familiarise himself with the file and, if he thought it necessary, to read out Norwegian documents to Mr Harward during their meetings, so that Mr Harward could take note of its contents through interpretation. If counsel would have deemed the time available to prepare the defence (just over six weeks) inadequate to familiarise himself with the entire file, he could have requested a postponement of the trial, which he did not do. The Committee concludes that, in the particular circumstances of the case, Mr Harward’s right to a fair trial, more specifically his right to have adequate facilities to prepare his defence, was not violated. RIGHT TO COMMUNICATE WITH COUNSEL OF ONE’S OWN CHOOSING

[14.126]

GENERAL COMMENT 32

¶34. The right to communicate with counsel requires that the accused is granted prompt access to counsel. Counsel should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications. Furthermore, lawyers should be able to advise and to represent persons charged with a criminal offence in accordance with generally recognised professional ethics without restrictions, influence, pressure or undue interference from any quarter.

[14.127]

KELLY v JAMAICA (537/93)

¶9.2. . . . According to the file, . . . the author, when brought into the police station in Hanover on 24 March 1988, told the police officers that he wanted to speak to his lawyer, Mr McLeod, but the police ignored the request for five days. In the circumstances, the Committee concludes that the author’s right, under article 14, paragraph 3(b), to communicate with counsel of his choice, was violated.

This right overlaps substantially with the rights contained in article 14(3)(d) and will be further considered below. [14.128] The Committee has confirmed on numerous occasions that detention incommunicado breaches article 14(3)(b) as it renders access to legal assistance impossible.110

Article 14(3)(c)—Trial without Undue Delay [14.129]

GENERAL COMMENT 32

¶35. The right of the accused to be tried without undue delay, provided for by article 14, paragraph 3 (c), is not only designed to avoid keeping persons too long in a state of uncertainty about their fate and, if held in detention during the period of the trial, to ensure that 110 See Drescher Caldas v Uruguay (43/79), Carballal v Uruguay (33/78), Izquierdo v Uruguay (73/80), and Machado v Uruguay (83/80).

Right to a Fair Trial

485

such deprivation of liberty does not last longer than necessary in the circumstances of the specific case, but also to serve the interests of justice. What is reasonable has to be assessed in the circumstances of each case, taking into account mainly the complexity of the case, the conduct of the accused, and the manner in which the matter was dealt with by the administrative and judicial authorities. In cases where the accused are denied bail by the court, they must be tried as expeditiously as possible. This guarantee relates not only to the time between the formal charging of the accused and the time by which a trial should commence, but also the time until the final judgement on appeal. All stages, whether in first instance or on appeal must take place ‘without undue delay.’

[14.130] Article 14(3)(c) overlaps substantially with article 9(3) which guarantees pre-trial detainees a right to be tried ‘within a reasonable time’ or released.111 Article 9(3) regulates the length of detention before trial. Article 14(3)(c) regulates the actual time between arrest and trial, regardless of whether one is detained or not. [14.131] The determination of ‘undue delay’ depends on the circumstances and complexity of the case. In this respect, the criminal ‘expedition’ rule mirrors the ‘expedition’ rule, incorporated into article 14(1), regarding civil trials.112 In Wolf v Panama (289/88), a delay of four-and-a-half years between arrest and the delivery of the judgment in a fraud case did not breach article 14(3)(c), as the HRC observed ‘that investigations into allegations of fraud may be complex and the author had not shown that the facts did not necessitate prolonged proceedings’.113 [14.132]

HILL and HILL v SPAIN (526/93)

In this case the author’s complaint regarding a violation of article 14(3)(c) was upheld by the HRC after a delay of three years between arrest and final appeal: ¶12.4. The authors were arrested on 15 July 1985 and formally charged on 19 July 1985. Their trial did not start until November 1986, and their appeal was not disposed of until July 1988. Only a minor part of this delay can be attributed to the authors’ decision to change their lawyers. The State party has argued that the delay was due to ‘the complexities of the case’ but has provided no information showing the nature of the alleged complexities. Having examined all the information available to it, the Committee fails to see in which respect this case could be regarded as complex. The sole witness was the eyewitness who gave evidence at the hearing in July 1985, and there is no indication that any further investigation was required after that hearing was completed. In these circumstances, the Committee finds that the State party violated the authors’ right, under article 14, paragraph 3(c), to be tried without undue delay.

[14.133] The Committee’s decisions in Wolf and Hill do not seem compatible regarding the burden of proof. In Wolf, the author had been required to show that proceedings should not have taken so long, whereas in Hill, the concomitant burden was on the State to show that proceedings should have taken so long. The distinguishing feature may be the inherent complexity of Wolf’s alleged crime, fraud, compared with the comparative ‘simplicity’ in investigating the Hill brothers’ 111 113

See [11.58]ff. At para 6.4. See also Sama v Germany (1771/08).

112

See [14.90]ff.

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The ICCPR

alleged crime, the firebombing of a car. This also demonstrates the HRC’s occasional inconsistency regarding the burden of proof in Optional Protocol cases.114 [14.134]

KELLY v JAMAICA (253/87)

¶5.11. . . . The author contends that his right, under article 14, paragraph (3)(c) . . . was violated because almost eighteen months elapsed between his arrest and the opening of the trial. . . . [The Committee] cannot conclude that a lapse of a year and a half between the arrest and the start of the trial constituted ‘undue delay’, as there is no suggestion that pre-trial investigations could have been concluded earlier, or that the author complained in this respect to the authorities.

[14.135]

SEXTUS v TRINIDAD and TOBAGO (818/98)

The author complained of a delay of 22 months between his arrest and trial at first instance, and a four-year seven-month delay between first trial and appeal. The HRC found in favour of the author: ¶7.2. As to the claim of unreasonable pre-trial delay, the Committee recalls its jurisprudence that ‘[i]n cases involving serious charges such as homicide or murder, and where the accused is denied bail by the court, the accused must be tried in as expeditious a manner as possible’.115 In the present case, where the author was arrested on the day of the offence, charged with murder and held until trial, and where the factual evidence was straightforward and apparently required little police investigation, the Committee considers that substantial reasons must be shown to justify a 22-month delay until trial. The State party points only to general problems and instabilities following a coup attempt, and acknowledges delays that ensued. In the circumstances, the Committee concludes that the author’s rights under article 9, paragraph 3 and article 14, paragraph 3 (c), have been violated.

[14.136] In Thomas v Jamaica (614/95)116 and Brown v Jamaica (775/97),117 a delay of 23 months between arrest and trial breached article 14(3)(c). In Yasseen and Thomas v Republic of Guyana (676/96), a delay of two years between an order for retrial and the conclusion of the appeal from that retrial breached article 14(3)(c),118 even though the authors’ counsel was responsible for a delay of three months.119 A 25-month delay between trial and appeal breached article 14(3)(c) in Smith and Stewart v Jamaica (668/95).120 On the other hand, a 14-month delay in Hankle v Jamaica (710/96) did not constitute a breach of article 14(3)(c),121 nor did the 18-month delay in Kelly [14.134], Glenford Campbell v Jamaica (248/87), or Ratiani v Georgia (975/01). Furthermore, a complaint regarding an 11-month

114

In this respect, see also [6.44]ff. Quoted from Del Cid Gómez v Panama (473/91), para 8.5. See also Smantser v Belarus (1178/03), para 10.4. 116 117 At para 9.5. At para 6.11. 118 119 At para 7.11. At para 5.7. 120 At para 7.4. 121 At para 6.6. A year’s delay between arrest and trial in McTaggart v Jamaica (749/97), whilst ‘undesirable’, was not a violation (para 8.2). See also Campbell v Jamaica (248/87) (no breach entailed in a 10-month delay between conviction and dismissal of the author’s appeal (para 6.8)). 115

Right to a Fair Trial

487

delay was ruled inadmissible for failure to present evidence of a Covenant violation in Hussain v Mauritius (980/01).122 Hence, a delay of 22 months (as in Sextus [14.135]) or more between arrest and conviction at first instance,123 and/or between conviction and the conclusion of an appeal, prima facie breaches article 14(3)(c). Exceptional circumstances, such as extreme complexity in the case, may justify longer delays. Shorter delays appear to be compatible with article 14(3)(c). [14.137]

STEPHENS v JAMAICA (373/89)

¶9.8. Finally, the author has alleged a violation of article 14, paragraphs 3(c) and (5), on account of the delay between his trial and his appeal. In this context, the Committee notes that during the preparation of the author’s petition for special leave to appeal to the Judicial Committee of the Privy Council by a London lawyer, Mr Stephens’ legal aid representative for the trial was requested repeatedly but unsuccessfully to explain the delays between trial and the hearing of the appeal in December 1986. While a delay of almost two years and 10 months between trial and appeal in a capital case is regrettable and a matter of concern, the Committee cannot, on the basis of the material before it, conclude that this delay was primarily attributable to the State party, rather than to the author.

Thus, where the delay is attributable to the author, or author’s counsel, there is no breach of article 14(3)(c).124 [14.138]

LUMANOG and SANTOS v PHILIPPINES (1466/06)

This case concerned the delays in the resolution of a capital case. ¶8.4. The Committee recalls that the right of the accused to be tried without undue delay is not only designed to avoid keeping persons too long in a state of uncertainty about their fate and, if held in detention during the period of the trial, to ensure that such deprivation of liberty does not last longer than necessary in the circumstances of the specific case, but also to serve the interests of justice. In this respect, the Committee notes that, the authors are in continuous detention since 1996 and their conviction, dated 30 July 1999, had been pending for review before the Supreme Court for 5 years before being transferred to the Court of Appeals on 18 January 2005. To date, more than three years have elapsed since the transfer to the Court of Appeals and still the authors’ case has not been heard. ¶8.5. The Committee considers that the establishment of an additional layer of jurisdiction to review death penalty cases is a positive step in the interest of the accused person. However, State parties have an obligation to organize their system of administration of justice in such a manner as to ensure an effective and expeditious disposal of the cases. In the Committee’s view, the State party has failed to take into consideration the consequences, in terms of undue delay of the proceedings, that the change in its criminal procedure caused in this case, where the review of a criminal conviction was pending for many years before the Supreme Court and was likely to be heard soon after the change in the procedural rules. 122

At para 6.5. Yasseen may indicate that 21 months is enough for a violation: see text at note 118. 124 See also Brown v Jamaica (775/97), Berry v Jamaica (330/88), VB v Trinidad & Tobago (485/91), Jones v Jamaica (585/96), and Jessop v New Zealand (1758/08). 123

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¶8.6. The Committee is of the view that, under the aforesaid circumstances, there is no justification for the delay in the disposal of the appeal, more than eight years having passed without the authors’ conviction and sentence been reviewed by a higher tribunal. Accordingly, the Committee finds that the authors’ rights under article 14, paragraph 3 (c) of the Covenant, have been violated.

[14.139] There have been a number of Jamaican cases where the authors’ rights to appeal from the Jamaican Court of Appeal to the Judicial Committee of the Privy Council have been thwarted by the failure of the Court of Appeal to produce written reasons. Privy Council appeals inevitably failed in the absence of these court documents.125 These delays have consistently been found to constitute breaches of article 14(3)(c) as well as a breach of the right to an appeal in criminal cases, article 14(5). For example, a delay of 45 months before production of the documents in Pratt and Morgan v Jamaica (210/86, 225/87) constituted breaches of both article 14(3)(c) and (5).126 In Rogerson v Australia (802/98), a delay of two years by the Northern Territory Court of Appeal between the hearing and its rendering of its decision was found to breach article 14(3)(c).127 On the other hand, a delay of nearly three years in producing the documents did not breach article 14(3)(c) in Reynolds v Jamaica (229/87). The guarantee was not even mentioned, which may indicate an oversight on the part of the HRC. In view of other cases establishing that a delay of less than two years could breach article 14(3)(c), the Reynolds decision seems anomalous.128 [14.140]

LUBUTO v ZAMBIA (390/90)

The State Party submitted the following justification for the eight-year delay between the author’s arrest and the dismissal of his final appeal: ¶5.1. By submission of 29 December 1994, the State party acknowledges that the proceedings in Mr Lubuto’s case took rather long. The State party requests the Committee to take into consideration its situation as a developing country and the problems it encounters in the administration of justice. It is explained that the instant case is not an isolated one and that appeals in both civil and criminal cases take considerable time before they are disposed of by the courts. According to the State party, this is due to the lack of administrative support available to the judiciary. Judges have to write out every word verbatim during the hearings, because of the absence of transcribers. These records are later typed out and have to be proofread by the judges, causing inordinate delays. The State party also refers to the costs involved in preparing the court documents. ¶5.2. The State party further points out that crime has increased and the number of cases to be decided by the courts have multiplied. Due to the bad economic situation in the country, it has not been possible to ensure equipment and services in order to expedite the disposal

125 See eg MF v Jamaica (233/88), para 5.2; Reynolds v Jamaica (229/87), para 5.1; Kelly v Jamaica (253/87), para 5.1. 126 See also Shalto v Trinidad and Tobago (447/91), para 7.2 (delay of ‘almost four years’); Little v Jamaica (283/88) (delay of five years); Kelly v Jamaica (253/87) (five years). 127 At para 9.3. 128 The author intimated as much in a subsequent complaint, which raised new allegations about subsequent court proceedings, in Reynolds v Jamaica (597/94).

Right to a Fair Trial

489

of cases. The State party submits that it is trying to improve the situation, and that it has recently acquired nine computers and that it expects to get 40 more. ¶5.3. The State party concludes that the delays suffered by the author in the determination of his case are inevitable due to the situation as explained above. The State party further submits that there has been no violation of article 14, paragraph 5, in the instant case, since the author’s appeal was heard by the Supreme Court, be it with delay.

The HRC found in favour of the author on this point: ¶7.3. The Committee has noted the State party’s explanations concerning the delay in the trial proceedings against the author. The Committee acknowledges the difficult economic situation of the State party, but wishes to emphasise that the rights set forth in the Covenant constitute minimum standards which all States parties have agreed to observe. Article 14, paragraph 3(c), states that all accused shall be entitled to be tried without delay, and this requirement applies equally to the right of review of conviction and sentence guaranteed by article 14, paragraph 5. The Committee considers that the period of eight years between the author’s arrest in February 1980 and the final decision of the Supreme Court, dismissing his appeal, in February 1988, is incompatible with the requirements of article 14, paragraph 3(c).

Thus, economic hardship does not excuse a State from full compliance with its article 14 obligations.129

Article 14(3)(d) TRIAL IN ONE’S OWN PRESENCE

[14.141]

GENERAL COMMENT 32

¶36. Article 14, paragraph 3 (d) contains three distinct guarantees. First, the provision requires that accused persons are entitled to be present during their trial. Proceedings in the absence of the accused may in some circumstances be permissible in the interest of the proper administration of justice, i.e. when accused persons, although informed of the proceedings sufficiently in advance, decline to exercise their right to be present. Consequently, such trials are only compatible with article 14, paragraph 3 (d) if the necessary steps are taken to summon accused persons in a timely manner and to inform them beforehand about the date and place of their trial and to request their attendance.

[14.142]

MBENGE v ZAIRE (16/77)

¶14.1. . . . [P]roceedings in absentia are in some circumstances (for instance, when the accused person, although informed of the proceedings sufficiently in advance, declines to exercise his right to be present) permissible in the interest of the proper administration of justice. Nevertheless, the effective exercise of the rights under article 14 presuppose that the necessary steps should be taken to inform the accused beforehand about the proceedings against him . . . Judgement in absentia requires that, notwithstanding the absence of the accused, all due notification has been made to inform him of the date and place of his trial and to request his attendance. . . . 129 See also Sextus v Trinidad and Tobago [14.135] and Mukunto v Zambia (768/97), para 6.4. Indeed, economic hardship rarely exempts a State from any of its ICCPR duties [1.133].

490 [14.143]

The ICCPR MALEKI v ITALY (699/96)

The author was convicted in absentia on charges of drug trafficking. The HRC found that there had been a breach of article 14(1): ¶9.3. The Committee has held in the past that a trial in absentia is compatible with article 14, only when the accused was summoned in a timely manner and informed of the proceedings against him (Communication No. 16/79, (Mbenge v Zaire)). In order for the State party to comply with the requirements of a fair trial when trying a person in absentia it must show that these principles were respected. ¶9.4. The State party has not denied that Mr Maleki was tried in absentia. However, it has failed to show that the author was summoned in a timely manner and that he was informed of the proceedings against him. It merely states that it ‘assumes’ that the author was informed by his counsel of the proceedings against him in Italy. This is clearly insufficient to lift the burden placed on the State party if it is to justify trying an accused in absentia. It was incumbent on the court that tried the case to verify that the author had been informed of the pending case before proceeding to hold the trial in absentia. Failing evidence that the court did so, the Committee is of the opinion that the author’s right to be tried in his presence was violated. ¶9.5. In this regard the Committee wishes to add that the violation of the author’s right to be tried in his presence could have been remedied if he had been entitled to a retrial in his presence when he was apprehended in Italy. The State party described its law regarding the right of an accused who has been tried in absentia to apply for a retrial. It failed, however, to respond to the letter from an Italian lawyer, submitted by the author, according to which in the circumstances of the present case the author was not entitled to a retrial. The legal opinion presented in that letter must therefore be given due weight. The existence, in principle, of provisions regarding the right to a retrial, cannot be considered to have provided the author with a potential remedy in the face of unrefuted evidence that these provisions do not apply to the author’s case. ¶10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 14, paragraph 1, of the Covenant.130

The case was decided under article 14(1) instead of the more specific article 14(3)(d) guarantee. This was because the State Party had entered a relevant reservation to article 14(3)(d) [26.12]. [14.144] In Concluding Observations on Finland, the HRC stated:131 ¶15. The Committee expresses concern at its understanding that, after due notice, a person charged before the Finnish courts with certain offences may be tried in absentia, if his or her presence was not necessary, and sentenced to a fine or up to three months imprisonment with no possibility of retrial after 30 days. The Committee considers that unless the person has clearly agreed to this procedure, and the court is fully informed of the offender’s circumstances, this method of trial could raise questions of compatibility with article 130 See also Salikh v Uzbekistan (1382/05), Osiyuk v Belarus (1311/04), and Adonis v Philippines (1815/08). 131 (1998) UN doc CCPR/C/79/Add.91.

Right to a Fair Trial

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14(3)(d) and 14(3)(e) of the Covenant. The Committee suggests that this procedure be reviewed.

Thus, criminal trials in absentia will only be tolerated when the defendant has been given ample notice and adequate opportunity to attend the proceedings.132 RIGHT TO COUNSEL OF ONE’S OWN CHOICE

[14.145]

GENERAL COMMENT 32

¶37. . . . [T]he right of all accused of a criminal charge to defend themselves in person or through legal counsel of their own choosing and to be informed of this right, as provided for by article 14, paragraph 3 (d), refers to two types of defence which are not mutually exclusive. Persons assisted by a lawyer have the right to instruct their lawyer on the conduct of their case, within the limits of professional responsibility, and to testify on their own behalf. At the same time, the wording of the Covenant is clear in all official languages, in that it provides for a defence to be conducted in person ‘or’ with legal assistance of one’s own choosing, thus providing the possibility for the accused to reject being assisted by any counsel. This right to defend oneself without a lawyer is, however not absolute. The interests of justice may, in the case of a specific trial, require the assignment of a lawyer against the wishes of the accused, particularly in cases of persons substantially and persistently obstructing the proper conduct of trial, or facing a grave charge but being unable to act in their own interests, or where this is necessary to protect vulnerable witnesses from further distress or intimidation if they were to be questioned by the accused. However, any restriction of the wish of accused persons to defend themselves must have an objective and sufficiently serious purpose and not go beyond what is necessary to uphold the interests of justice. Therefore, domestic law should avoid any absolute bar against the right to defend oneself in criminal proceedings without the assistance of counsel.

[14.146] Article 14(3)(d) overlaps to a large extent with the article 14(3)(b) guarantee, particularly regarding one’s right to legal representation. Hence, simultaneous breaches of the two sub-paragraphs are often found. [14.147]

ENGO v CAMEROON (1397/05)

¶7.8. With regard to the obstruction of the author’s preparation of his defence, the Committee notes that the State party replies that a lawyer from Paris received two visas in order to assist his client at two hearings in 2002. The State party does not, however, respond to the allegations that two of the lawyers from the Paris Bar appointed by the author were prevented from travelling to Cameroon to assist their client in May 2001 and May 2002, which prompted the Cameroonian lawyers to refuse to represent him in court. Neither does the State party challenge the authenticity of the letter dated 4 May 2001 in which one of the author’s accusers requests the Ambassador of Cameroon in Paris to stop the lawyers coming. Persons charged with a criminal offence have the right to communicate with counsel of their own choosing; this is one guarantee of a fair hearing provided for in article 14, paragraphs 3 (b) and (d), of the Covenant. The State party does not contest the author’s right to be represented by French lawyers or that those lawyers were authorized to represent him in the State party’s courts. The fact that the author encountered considerable 132

See also Wolf v Panama (289/88), para 6.6.

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The ICCPR

obstacles in his efforts to communicate with these lawyers therefore constitutes a violation of the procedural guarantees provided for in article 14, paragraphs 3 (b) and (d).

[14.148] In Estrella v Uruguay (74/80) the author’s choice of counsel was limited to one of two officially appointed defence lawyers. The author met his counsel only four times in over two years. The Committee expressed the view that there had been a breach of article 14(3)(b) and (d). In Larrañaga v Philippines (1421/05), a breach of article 14(3)(d) arose when the accused was not permitted to hire his own lawyer at his own expense, and instead was forced to accept representation by a court-appointed lawyer.133 In Lopez Burgós v Uruguay (52/79) the HRC found a violation of article 14(3)(d) when the author was forced to accept a certain person as his legal counsel even though this lawyer was connected with the government; the author had no access to a civilian lawyer unconnected with the government. Similarly, in Pinto v Trinidad and Tobago (232/87), the author should not have been forced to accept a court-appointed lawyer, who had performed poorly in the trial at first instance, when ‘he had made the necessary arrangements to have another lawyer represent him before the Court of Appeal’.134 Thus, one cannot be forced to accept ex officio counsel.135 [14.149] Article 14(3)(d) does not entitle the accused to a choice of counsel if the author is being provided with a legal aid lawyer, and is otherwise unable to afford legal representation.136 [14.150]

BAILEY v JAMAICA (709/96)

The author was convicted of capital murder in 1979. Under new legislation, his offence was reclassified as non-capital murder in 1993. He complained about the setting of a non-parole period of 20 years from the date of reclassification. The HRC upheld his complaint as a violation of article 14(1) and 14(3)(d):137 ¶7.5. The author further claims that his rights under article 14, paragraph 1, were violated in the reclassification procedure in which the author’s offence was classified as non-capital under section 7 of the Offences Against the Person (Amendment) Act 1992 and the non-parole period was set to 20 years [from the date of reclassification]. It is submitted that the author was not provided with any reasons for the length of the non-parole period and was not given the opportunity to make any contribution to the procedure before the single judge. Even though a life sentence is prescribed by law for offences reclassified as non-capital, the Committee notes that the judge when fixing the non-parole period exercises discretionary power conferred on him by the Amendment Act 1992 and makes a decision which is separate from the decision on pardon and forms an essential part of the determination of a criminal charge. The Committee notes that the State party has not contested that the

At para 7.6. See also Ismailov v Uzbekistan (1769/08), para 7.4. At para 12.5. 135 See also Domukovsky et al v Georgia (623–624, 626–627/95), para 18.9. See also Kelly v Jamaica (253/87) [14.162]. 136 See Pratt and Morgan v Jamaica (210, 225/87); Teesdale v Trinidad and Tobago (677/96), para 9.6. 137 See also Gallimore v Jamaica (680/96), para 7.2. 133 134

Right to a Fair Trial

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author was not afforded the opportunity to make any submissions prior to the decision of the judge. In the circumstances, the Committee finds that article 14, paragraphs 1 and 3(d), were violated.

Thus, one has a right to representation in defending a criminal charge and in submitting arguments regarding one’s sentence and non-parole period. [14.151]

CORREIA DE MATO v PORTUGAL (1123/02)

This case concerned the right to defend one’s self under article 14(3)(d).138 ¶7.3. The Committee notes that article 14, paragraph 3 (d), of the Covenant provides that everyone accused of a criminal charge shall be entitled ‘to defend himself in person or through legal assistance of his own choosing’. The two types of defence are not mutually exclusive. Persons assisted by a lawyer retain the right to act on their own behalf, to be given a hearing, and to state their opinions on the facts of the case. At the same time, the Committee considers that the wording of the Covenant is clear in all official languages, in that it provides for a defence to be conducted in person ‘or’ with legal assistance of one’s own choosing, taking as its point of departure the right to conduct one’s own defence. In fact, if an accused person had to accept an unwanted counsel whom he does not trust he may no longer be able to defend himself effectively as such counsel would not be his assistant. Thus, the right to conduct one’s own defence, which is a cornerstone of justice, may be undermined when a lawyer is imposed against the wishes of the accused. ¶7.4. The right to defend oneself without a lawyer is not absolute, however. Notwithstanding the importance of the relationship of trust between accused and lawyer, the interests of justice may require the assignment of a lawyer against the wishes of the accused, particularly in cases of a person substantially and persistently obstructing the proper conduct of trial, or facing a grave charge but being unable to act in his own interests, or where it is necessary to protect vulnerable witnesses from further distress if the accused were to question them himself. However, any restriction of the accused’s wish to defend himself must have an objective and sufficiently serious purpose and not go beyond what is necessary to uphold the interests of justice. ¶7.5. The Committee considers that it is the task of the competent courts to assess whether in a specific case the assignment of a lawyer is necessary in the interests of justice, inasmuch as a person facing criminal prosecution may not be in a position to make a proper assessment of the interests at stake, and thus defend himself as effectively as possible. However, in the present case, the legislation of the State party and the case law of its Supreme Court provide that the accused can never be released from the requirement to be represented by counsel in criminal proceedings, even if he is a lawyer himself, and that the law takes no account of the seriousness of the charges or the behaviour of the accused. Moreover, the State party has not provided any objective and sufficiently serious reasons to explain why, in this instance of a relatively simple case, the absence of a court-appointed lawyer would have jeopardized the interests of justice or why the author’s right to self-representation had to be restricted. The Committee concludes that the right to defend oneself in person, guaranteed under article 14, paragraph 3 (d), of the Covenant has not been respected.

138

See also Hill v Spain (526/93), para 14.2.

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The ICCPR

RIGHTS TO LEGAL AID FOR DEFENDANTS WITH INSUFFICIENT MEANS TO PAY

[14.152]

GENERAL COMMENT 32

¶38. [A]rticle 14, paragraph 3 (d) guarantees the right to have legal assistance assigned to accused persons whenever the interests of justice so require, and without payment by them in any such case if they do not have sufficient means to pay for it. The gravity of the offence is important in deciding whether counsel should be assigned ‘in the interest of justice’ as is the existence of some objective chance of success at the appeals stage. In cases involving capital punishment, it is axiomatic that the accused must be effectively assisted by a lawyer at all stages of the proceedings. Counsel provided by the competent authorities on the basis of this provision must be effective in the representation of the accused. Unlike in the case of privately retained lawyers, blatant misbehaviour or incompetence, for example the withdrawal of an appeal without consultation in a death penalty case, or absence during the hearing of a witness in such cases may entail the responsibility of the State concerned for a violation of article 14, paragraph 3 (d), provided that it was manifest to the judge that the lawyer’s behaviour was incompatible with the interests of justice. There is also a violation of this provision if the court or other relevant authorities hinder appointed lawyers from fulfilling their task effectively.

[14.153]

BORISENKO v HUNGARY (852/99)

The author, a Ukrainian citizen, was charged with theft. He was detained for three days before being brought before a judge, who authorized his further detention. All in all, he was detained for 16 days before being expelled from Hungary. ¶7.5. With respect to the author’s claim that he was not provided with legal representation from the time of his arrest to his release from detention, which included a hearing on detention at which he had to represent himself, the Committee notes that the State party has confirmed that although it assigned a lawyer to the author, the lawyer failed to appear at the interrogation or at the detention hearing. In its previous jurisprudence, the Committee has made it clear that it is incumbent upon the State party to ensure that legal representation provided by the State guarantees effective representation. It recalls its prior jurisprudence that legal assistance should be available at all stages of criminal proceedings. Consequently, the Committee finds that the facts before it reveal a violation of article 14, paragraph 3(d) of the Covenant.

[14.154]

OF v NORWAY (158/83)

In this case, the author was charged with a traffic speeding offence. He claimed a breach of article 14(3)(d) as he was not granted legal aid to defend these charges. The State Party argued: ¶3.4. . . . As far as article 14 (3) (d) is concerned, . . . it is presumed that the author’s reason for invoking this provision must be that the interests of justice required that he should have been assigned free legal assistance. The fact that the author was not assigned free legal assistance must be seen in the light of the nature of the offences with which the author was charged. Both charges were trivial and ordinary and could in practice only lead to a small fine . . . Even if the accused usually has no right to free legal assistance in minor cases, he is of course (section 99 of the Criminal Procedure Act) entitled to be assisted by a counsel of

Right to a Fair Trial

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his own choice—paid by himself—at any stage of the prosecution, including the main hearing. . . . Consequently, the Government are of the opinion that the facts of the case do not raise any issue under article 14(3)(d).

The HRC agreed with the State Party’s contention that the case was inadmissible.139 [14.155]

LINDON v AUSTRALIA (646/95)

¶6.5. The Committee has considered the author’s claim that he is a victim of a violation of article 14, paragraph 3(d), as he at the proceedings before the Full Court in September 1989 was denied a legal aid lawyer of his own choosing. The Committee notes that the proceedings concerned the author’s interlocutory applications regarding his defence against a trespassing charge where the penalty was a fine, and in the circumstances, the Committee finds that the author, for purposes of admissibility, has failed to substantiate his claim that the interests of justice required the assignment of legal aid. Therefore, this part of the communication is inadmissible under article 2 of the Optional Protocol.

Thus, the gravity of the offence is important in deciding whether, ‘in the interests of justice’, an accused should be assigned legal representation at the State’s expense.140 In Concluding Observations on Slovakia, the HRC regretted the fact that legal aid was available only for offences which attracted a potential sentence of five years or more imprisonment.141 [14.156] In Concluding Observations on Norway, the HRC stated:142 ¶6. The Committee is concerned that means-tested legal aid fails to take account of the actual circumstances of the applicants and is assessed without regard to the actual cost of the legal service being sought. Moreover, legal aid is not available at all for certain categories of case (art. 14).

[14.157] In ZP v Canada (341/88), the author was refused legal aid by the State Party to appeal his conviction for rape. The HRC found that ‘the author had not sufficiently substantiated his allegation’ of a breach of article 14(3)(d), ‘for the purposes of admissibility’.143 The domestic decision to refuse legal aid was based on the perceived lack of merit in his appeal.144 Thus, a State Party is not required to provide legal aid for a person who is appealing a serious offence, unless the appeal has some objective chance of success. [14.158] The ZP rule regarding legal aid for appeals may, however, not apply to people convicted of capital offences, who perhaps should be ensured access to all potential avenues of appeal to challenge their conviction or sentence.145 Consider the following case: 139

140 At para 5.6. See also [14.36]. (1997) UN doc CCPR/C/79/Add.79, para 19. 142 143 See (2011) UN doc CCPR/C/NOR/CO/6. At para 5.4. 144 At para 4.4. The accused had not informed the Montreal Legal Aid Board of any arguable grounds of appeal. 145 See also [14.34]. 141

496

The ICCPR LAVENDE v TRINIDAD and TOBAGO (554/93)

¶5.8. Regarding the claim under article 14, paragraph 3(d), the State party has not denied that the author was denied legal aid for the purpose of petitioning the Judicial Committee of the Privy Council for special leave to appeal. The Committee recalls that it is imperative that legal aid be available to a convicted prisoner under sentence of death, and that this applies to all stages of the legal proceedings. . . . Section 109 of the Constitution of Trinidad and Tobago provides for appeals to the Judicial Committee of the Privy Council. It is uncontested that in the present case, the Ministry of National Security denied the author legal aid to petition the Judicial Committee in forma pauperis, thereby effectively denying him legal assistance for a further stage of appellate judicial proceedings which is provided for constitutionally; in the Committee’s opinion, this denial constituted a violation of article 14, paragraph 3(d), whose guarantees apply to all stages of appellate remedies. As a result, his right, under article 14, paragraph 5, to have his conviction and sentence reviewed ‘by a higher tribunal according to law’ was also violated, as the denial of legal aid for an appeal to the Judicial Committee effectively precluded the review of Mr LaVende’s conviction and sentence by that body.

Legal aid for people accused of a capital crime must be supplied to people with insufficient means at preliminary hearings related to the case,146 as well as trial and appeal.147 [14.159] In Concluding Observations on Kenya, the HRC has stated:148 ¶21. The Committee is concerned that only individuals facing a capital murder charge currently benefit from a legal assistance scheme, and that those charged with other capital or non-capital offences, however serious, do not benefit from legal aid (article 14, paragraph 3 (d), of the Covenant). The State party should facilitate the access of individuals to legal assistance in all criminal proceedings where the interests of justice so require. The envisaged expansion of the legal aid scheme should be pursued actively.

[14.160] The guarantee of legal aid in article 14(3)(d) applies only to criminal proceedings. However, in a few cases, such as Currie v Jamaica (377/89), the HRC has found that article 14(1) entitles one to legal aid in certain types of civil proceedings [14.34]. GUARANTEE OF COMPETENT REPRESENTATION

[14.161] In Concluding Observations on the United States, the HRC stated:149 ¶23. . . . The Committee . . . notes the lack of effective measures to ensure that indigent defendants in serious criminal proceedings, particularly in state courts, are represented by competent counsel. 146 See Wright and Harvey v Jamaica (459/91), para 10.2; Levy v Jamaica (719/96), para 7.2; Marshall v Jamaica (730/96), para 6.2. 147 See also Thomas v Jamaica (532/93), para 6.4; Johnson v Jamaica (592/94), para 10.2 (legal aid denied in initial trial); Robinson v Jamaica (223/87) (author entitled to legal aid though it would require an adjournment to the trial), para 10.4. 148 (2005) UN doc CCPR/CO/83/KEN. See also Concluding Observations on Botswana (2008) UN doc CCPR/C/BWA/CO/1, para 20. 149 (1995) UN doc CCPR/C/79/Add.50.

Right to a Fair Trial

497

In Vasilskis v Uruguay (80/80), the HRC found a breach of article 14(3)(b) and (d) where the court had appointed the author a defence counsel who was not a qualified lawyer. [14.162]

KELLY v JAMAICA (253/87)

¶5.10. . . . The Committee is of the opinion that while article 14 paragraph 3(d) does not entitle the accused to choose counsel provided to him free of charge, measures must be taken to ensure that counsel, once assigned, provides effective representation in the interest of justice. This includes consulting with, and informing, the accused if he intends to withdraw an appeal or to argue before the appeals court that the appeal has no merit.

Thus, where legal representation has been provided by the State, that representation must be ‘effective’. [14.163]

CAMPBELL v JAMAICA (618/95)

The author made various allegations about the incompetence of his legal aid lawyer in a capital trial.150 The author added: ¶5.3. With regard to counsel’s conduct of the defence at trial or on appeal, it is argued that the State party must bear the responsibility for the conduct of counsel, since it provides legal aid at such a low rate of remuneration that the defence is inadequately resourced and counsel who accept instructions in capital cases are under such intense pressure of work that they cannot properly or adequately represent their clients.

The HRC did not find a breach entailed in the lawyers’ alleged incompetence: ¶7.3. The author has claimed that the bad quality of the defence put forward by his counsel at trial resulted in depriving him of a fair trial. Reference has been made in particular to counsel’s alleged failure to interview the author’s girlfriend, and to his alleged failure to cross-examine properly the prosecution witnesses in relation to the conduct of the identification parade and in relation to the author’s alleged oral statement. The Committee recalls its jurisprudence that the State party cannot be held accountable for alleged errors made by a defence lawyer, unless it was or should have been manifest to the judge that the lawyer’s behaviour was incompatible with the interests of justice. The material before the Committee does not show that this was so in the instant case and consequently, there is no basis for a finding of a violation of article 14, paragraph 3(b) (d) and (e), in this respect.

[14.164]

HUSSAIN v MAURITIUS (980/01)

The author complained that his legal aid lawyer had received necessary documents only five days prior to his trial, and had generally handled the litigation poorly. The HRC found the complaint inadmissible: ¶6.3. Concerning the author’s claim that his counsel has not received sufficient time to prepare his defence because the case file was transmitted to him only five days prior to the first hearing, which may raise issue under article 14, paragraph 3 (b) and (d), of the Covenant, the Committee notes from the information brought by both parties that counsel had the 150

See also Chan v Guyana (913/00), para 6.3.

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The ICCPR

opportunity to cross-examine the witness as well as to ask for the adjournment of the trial, which he did not do. In this respect, the Committee refers to its jurisprudence that a State party cannot be held responsible for the conduct of a defence lawyer, unless it was or should have been manifest to the judge that the lawyer’s behaviour was incompatible with the interests of justice. In the instant case, there is no reason for the Committee to believe that the author’s counsel was not using other than his best judgement. Moreover, the Committee notes that the author eventually decided to plead guilty against the advice of his counsel. The Committee finds therefore that the author has not sufficiently substantiated his claim under article 14, paragraph 3 (b) and (d) of the Covenant. This part of the communication should therefore be declared inadmissible under article 2 of the Optional Protocol.

[14.165] The above decisions, coupled with HRC jurisprudence under article 14(3)(e),151 indicate that the State’s guarantee of competent legal aid counsel is limited.152 Indeed, only blatant misbehaviour or incompetence has sufficed to establish violations of article 14(3)(d), such as the withdrawal of an appeal without consultation,153 absence during a judge’s summing up,154 or absence during the hearing of witnesses,155 even in a preliminary hearing.156 Allegations of incompetence in court strategy have not so far been upheld, with the HRC deferring to counsel’s professional judgment. [14.166] The following case addresses complaints of incompetence by a privately retained lawyer. HC v JAMAICA (383/89) ¶6.3. As regards the author’s claim concerning his legal representation, the Committee observes that the author’s lawyer was privately retained and that his alleged failure to properly represent the author cannot be attributed to the State party. This part of the communication is therefore inadmissible.

HC indicates that a different ‘standard’ may be applied to legal aid lawyers as opposed to privately retained lawyers. Perhaps the State may be obliged to guarantee a minimum level of competence only from the lawyers it provides to accused people.157 [14.167]

TAYLOR v JAMAICA (705/96)

¶6.2. Regarding the claim that the author had insufficient opportunity to prepare his defence and that his representative made little effort to consult with him, take his instructions or

151

See [14.171]. See also Teesdale v Trinidad and Tobago (677/96), para 9.7; Ricketts v Jamaica (667/965), para 7.3; Shaw v Jamaica (704/96), para 7.5; Bailey v Jamaica (709/96), para 7.1. 153 See also Collins v Jamaica (356/89), para 8.2; Steadman v Jamaica (528/93), para 10.3; Smith and Stewart v Jamaica (668/95), para 7.3; Morrison and Graham v Jamaica (461/91), para 10.3; Morrison v Jamaica (663/95), para 8.6; McLeod v Jamaica (734/97), para 6.3; Jones v Jamaica (585/94), para 9.5; Sooklal v Trinidad and Tobago (928/00), para 4.10. 154 155 Brown v Jamaica (775/97), para 6.8. Hendricks v Guyana (838/98), para 6.4. 156 Brown v Jamaica (775/97); Simpson v Jamaica (695/96). 157 See also Henry v Jamaica (230/87), para 8.3; Berry v Jamaica (330/88), para 11.3. 152

Right to a Fair Trial

499

trace and call witnesses, the Committee recalls that counsel was initially privately retained. It is of the opinion that the State party cannot be held accountable for any alleged deficiencies in the defence of the accused or alleged errors committed by the defence lawyer, unless it was manifest to the trial judge that the lawyer’s behaviour was incompatible with the interests of justice. In the present case, there is no indication that author’s counsel, a Queen’s Counsel, was not acting other than in the exercise of his professional judgement by deciding to ignore certain of the author’s instructions and not to call a witness. This claim is accordingly inadmissible under article 2 of the Optional Protocol.

[14.168] The Taylor decision is very similar to the above decision in Campbell [14.163], which concerned a legal aid lawyer, indicating that the HRC does not in fact require a State to guarantee a different standard of competence for private and public lawyers.158 However, General Comment 32 endorses the stricter approch in HC at paragraph 38 [14.152].

Article 14(3)(e)—Rights Regarding Witness Attendance and Examination [14.169]

GENERAL COMMENT 32

¶39. Paragraph 3 (e) of article 14 guarantees the right of accused persons to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. As an application of the principle of equality of arms, this guarantee is important for ensuring an effective defence by the accused and their counsel and thus guarantees the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution. It does not, however, provide an unlimited right to obtain the attendance of any witness requested by the accused or their counsel, but only a right to have witnesses admitted that are relevant for the defence, and to be given a proper opportunity to question and challenge witnesses against them at some stage of the proceedings. Within these limits, and subject to the limitations on the use of statements, confessions and other evidence obtained in violation of article 7, it is primarily for the domestic legislatures of States parties to determine the admissibility of evidence and how their courts assess it.

[14.170]

GORDON v JAMAICA (237/87)

¶6.3. As to the author’s allegation that he was unable to have witnesses testify on his behalf, although one, Corporal Afflick, would have been readily available, it is to be noted that the Court of Appeal, as is shown in its written judgement, considered that the trial judge rightly refused to admit Corporal Afflick’s evidence, since it was not part of the res gestae. The Committee observes that article 14, paragraph 3 (e), does not provide an unlimited right to obtain the attendance of any witness requested by the accused or his counsel. It is not apparent from the information before the Committee that the court’s refusal to hear Corporal Afflick was such as to infringe the equality of arms between the prosecution and the defence. In the circumstances, the Committee is unable to conclude that article 14, paragraph 3(e), has been violated. 158

See also Perera v Australia (536/93), para 6.3.

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The ICCPR

Thus, article 14(3)(e) is not concerned with the right to call witnesses per se; it is concerned with equality of rights to call witnesses as between the defence and the prosecution.159 It is for the author to establish that the failure of a court to permit examination of a certain witness violated his/her ‘equality of arms’.160 [14.171]

PRATT and MORGAN v JAMAICA (210, 225/87)

¶13.2. . . . [The Committee is not] in a position to ascertain whether the failure of Mr Pratt’s lawyer to insist upon calling the alibi witness before the case was closed was a matter of professional judgement or of negligence. That the Court of Appeal did not of itself insist upon the calling of this witness is not in the view of the Committee a violation of article 14, paragraph 3(e), of the Covenant.

PEART and PEART v JAMAICA (464, 482/91) ¶11.3. With regard to the authors’ claim that the unavailability of the expert witness from the Meteorological Office constitutes a violation of article 14 of the Covenant, the Committee notes that it appears from the trial transcript that the defence had contacted the witness but had not secured his presence in court, and that, following a brief adjournment, the judge then ordered the Registrar to issue a subpoena for the witness and adjourned the trial. When the trial was resumed and the witness did not appear, counsel informed the judge that he would go ahead without the witness. In the circumstances, the Committee finds that the State party cannot be held accountable for the failure of the defence expert witness to appear.

Thus, the HRC will not address a failure by the accused’s counsel to call material witnesses, even if counsel was provided by the State,161 as this is essentially a matter for counsel’s professional judgment. If counsel fails to call a witness, it is not for the domestic court to do so ex officio.162 [14.172] The following cases demonstrate violations of article 14(3)(e).163 GRANT v JAMAICA (353/88) ¶8.5. The author . . . contends that he was unable to secure the attendance of witnesses on his behalf, in particular the attendance of his girlfriend, P.D. The Committee notes from the trial transcript that the author’s attorney did contact the girlfriend, and, on the second day of the trial, made a request to the judge to have P.D. called to court. The judge then instructed the police to contact this witness, who . . . had no means to attend. The Committee is of the opinion that, in the circumstances, and bearing in mind that this is a case involving the death penalty, the judge should have adjourned the trial and issued a subpoena to secure the attendance of P.D. in court. Furthermore, the Committee considers that the police 159 See also Compass v Jamaica (375/89), para 10.3; Aouf v Belgium (1010/01), para 9.3; Dimkovich v Russian Federation (1343/05), para 7.2; and Sedljar and Lavrov v Estonia (1532/06). 160 Párkányi v Hungary (410/90), para 8.5. 161 See also Young v Jamaica (615/95), para 5.5; see Perera v Australia (536/93), para 6.3, for a similar decision regarding privately retained counsel. 162 See Van Meurs v Netherlands (215/86), para 7.2. 163 See also Shchetka v Ukraine (1535/06), para 10.4; Larrañaga v Philippines (1421/05), para 7.7; Khuseynov and Butaev v Tajikistan (1263–4/04), para 8.5; Ismailov v Uzbekistan (1769/08), para 7.4; Idiev v Tajikistan (1276/04), para 9.6; Koreba v Belarus (1390/05), para 7.5.

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should have made transportation available to her. To the extent that P.D.’s failure to appear in court was attributable to the State party’s authorities, the Committee finds that the criminal proceedings against the author were in violation of article 14, paragraphs 1 and 3 (e), of the Covenant.

[14.173]

PEART and PEART v JAMAICA (464, 482/91)

¶11.4. With regard to the evidence given by the main witness for the prosecution, the Committee notes that it appears from the trial transcript that, during cross-examination by the defence, the witness admitted that he had made a written statement to the police on the night of the incident. Counsel then requested a copy of this statement, which the prosecution refused to give; the trial judge subsequently held that defence counsel had failed to put forward any reason why a copy of the statement should be provided. The trial proceeded without a copy of the statement being made available to the defence. ¶11.5. From the copy of the statement, which came into counsel’s possession only after the Court of Appeal had rejected the appeal and after the initial petition for special leave to appeal to the Judicial Committee of the Privy Council had been submitted, it appears that the witness named another man as the one who shot the deceased, that he implicated Andrew Peart as having had a gun in his hand, and that he did not mention Garfield Peart’s participation or presence during the killing. The Committee notes that the evidence of the only eye-witness produced at the trial was of primary importance in the absence of any corroborating evidence. The Committee considers that the failure to make the police statement of the witness available to the defence seriously obstructed the defence in its cross-examination of the witness, thereby precluding a fair trial of the defendants. The Committee finds therefore that the facts before it disclose a violation of article 14, paragraph 3(e), of the Covenant.

[14.174]

FUENZALIDA v ECUADOR (480/91)

The author complained that his trial, at which he was convicted of rape, was unfair. ¶3.5. The author also claims that—in view of the submission by the victim of a laboratory report on samples (blood and semen) taken from her and samples of blood and hair taken from him against his will and showing the existence of an enzyme which the author does not have in his blood—he requested the court to order an examination of his own blood and semen, a request which the court denied. . . .

The HRC found in favour of the author on this point, and highlighted the importance of expert evidence in fair trials: ¶9.5. . . . The Committee has considered the legal decisions and the text of the judgement dated 30 April 1991, especially the court’s refusal to order expert testimony of crucial importance to the case, and concludes that this refusal constitutes a violation of article 14, paragraphs 3 (e) and 5, of the Covenant.

[14.175]

ROUSE v PHILIPPINES (1089/02)

¶7.5. As to the claim that the author was deprived of his right to cross-examine a crucial prosecution witness, the Committee notes the State party’s contention that he was afforded,

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and took advantage, of the possibility to cross-examine the public officers who had also filed a complaint against him. However, the Committee notes that although a subpoena order had been issued to bring the alleged victim to testify in court, neither the alleged victim nor his parents could allegedly be located. The Committee further recalls that considerable weight was given to that witness’ out of court statement. Considering that the author was unable to cross-examine the alleged victim, although he was the sole eyewitness to the alleged crime, the Committee concludes that the author was the victim of a violation of article 14, paragraph 3(e).

[14.176] In Concluding Observations on the Netherlands, the HRC stated:164 ¶13. The Committee notes that, under the Witness Identity Protection Act, the identity of certain witnesses is kept from the defence for reasons of national security. While the defence may put questions to such witnesses through the examining judge, the defence cannot always attend the examination of the witness. Considering the importance of a witness’ identity and demeanour in assessing the credibility of his evidence, the ability of an accused person to challenge the case against him is significantly impaired by this law (art. 14).

The State party should apply the law so as to give full effect to the right of a person to examine, or have examined, the witnesses against him in conformity with article 14(e) of the Covenant.

Article 14(3)(f)—Right to Free Assistance of an Interpreter if Needed [14.177]

GENERAL COMMENT 32

¶40. The right to have the free assistance of an interpreter if the accused cannot understand or speak the language used in court as provided for by article 14, paragraph 3 (f) enshrines another aspect of the principles of fairness and equality of arms in criminal proceedings.165 This right arises at all stages of the oral proceedings. It applies to aliens as well as to nationals. However, accused persons whose mother tongue differs from the official court language are, in principle, not entitled to the free assistance of an interpreter if they know the official language sufficiently to defend themselves effectively.

States Parties should ensure that official charge sheets and charge forms are available in all languages commonly spoken within that State.166 [14.178]

GUESDON v FRANCE (219/86)

¶10.2. The provision for the use of one court language does not, in the Committee’s opinion, violate article 14. Nor does the requirement of a fair trial mandate States parties to make available to a citizen whose mother tongue differs from the official court language, the service of an interpreter, if this citizen is capable of expressing himself adequately in the official language. Only if the accused or the defence witnesses have difficulties in 164

(2009) UN doc CCPR/C/NLD/CO/4. See also Concluding Observations on The Former Yugoslav Republic of Macedonia, (2008) UN doc CCPR/C/MKD/CO/2, para 17, where the HRC comments on the lack of translators for Albanian, Romani, Turkish, and other minority languages. 166 Concluding Observations on the United Kingdom (Hong Kong) (1995) UN doc CCPR/C/79/ Add. 7, para 13. See also [24.46]ff. 165

Right to a Fair Trial

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understanding, or in expressing themselves in the court language, must the services of an interpreter be made available.

The Guesdon decision has been affirmed in numerous cases brought by Breton activists, who unsuccessfully attempted to claim a ‘right’ to speak Breton instead of French in French proceedings.167

Article 14(3)(g)—Freedom from Compulsory Self-incrimination [14.179]

GENERAL COMMENT 32

¶41. [A]rticle 14, paragraph 3 (g), guarantees the right not to be compelled to testify against oneself or to confess guilt. This safeguard must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt. A fortiori, it is unacceptable to treat an accused person in a manner contrary to article 7 of the Covenant in order to extract a confession. Domestic law must ensure that statements or confessions obtained in violation of article 7 of the Covenant are excluded from the evidence, except if such material is used as evidence that torture or other treatment prohibited by this provision occurred, and that in such cases the burden is on the State to prove that statements made by the accused have been given of their own free will.

Thus, the burden is on the State to prove that a confession has been obtained without duress.168 Implementation of certain procedures, such as the audio or video recording of police interviews, assists in alleviating such a burden. In Singarasa v Sri Lanka (1033/01), the placement of the burden of proof on the author to prove involuntariness also breached article 14(2), and the fact that the ‘confession’ was recorded without an interpreter breached article 14(1). [14.180]

KOUIDIS v GREECE (1070/02)

In this case, the HRC did not find that a confession had actually been made under duress, so no violation of article 14(3)(g) in conjunction with article 7 was found. However, the failure by the State’s court to consider the author’s argument that his confession was forced constituted a violation in itself: ¶7.5. On the claim under article 14, paragraph 3 (g) read alone, the Committee notes the Supreme Court was aware of the allegations of ill-treatment. The Committee considers that the obligations under article 14, paragraph 3(g) entail an obligation of the State party to take account of any claims that statements made by accused persons in a criminal case were given under duress. In this regard, it is immaterial whether or not a confession is actually relied upon, as the obligation refers to all aspects of the judicial process of determination. 167 See eg Cadoret and Le Bihan v France (221/87, 323/88), Barzhig v France (327/88), CLD v France (439/90); see also Domukovsky et al v Georgia (623–4, 626–7/95), para 18.7 and Juma v Australia (984/01), para 7.3. In Diergaardt v Namibia (760/97), the HRC found no violation entailed in the compulsory use of English rather than Afrikaans during court proceedings in Namibia (para 10.9). The case concerned art 14(1) rather than art 14(3)(f) as the relevant Namibian proceedings were civil rather than criminal. 168 See also Kurbonov v Tajikistan (1208/03), para 6.3 [14.69]; Idiev v Tajikistan (1276/04), para 9.3; Sultanova v Uzbekistan (915/00), para 7.3; and Koreba v Belarus (1390/05), para 7.3.

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In the present case, the State party’s failure, at the level of the Supreme Court, to take account of the author’s claims that his confession was given under duress, amount to a violation of article 14, paragraph 3(g).

It is a breach of article 14(3)(g) if force is used to compel a confession. Here, Kouidis did not sustain that complaint. However, Greece breached article 14(3)(g) as its courts had failed to give due regard to Kouidis’s allegations in this regard. It was irrelevant that the conviction found by the trial court, and upheld by the appeal courts, was not apparently based on that confession. Thus, the HRC is stating that the Supreme Court should have explicitly addressed the complaint, even though the HRC itself found that the complaint was not sustainable. [14.181] In Concluding Observations on the United Kingdom, the HRC stated that:169 ¶28. The Committee notes with concern that the provisions of the Criminal Justice and Public Order Act of 1994, which extends legislation originally applicable in Northern Ireland, whereby inferences may be drawn from the silence of persons accused of crimes, violates various provisions of article 14 of the Covenant, despite the range of safeguards built into the legislation and rules enacted thereunder.

Restrictions on the right to silence threaten one’s freedom from self-incrimination. They also arguably threaten one’s right to be presumed innocent. The HRC’s comments on the United Kingdom indicate that a crucial aspect of one’s right to silence is the right to be free from adverse inferences drawn from one’s silence.170 [14.182]

SÁNCHEZ LÓPEZ v SPAIN (777/97)

The author submitted the following complaint: ¶2.1. On 5 May 1990, the author was driving his car at 80 km/h in an area where the speed limit was 60 km/h. The car was photographed after being detected by the police radar. The General Department of Traffic (Ministry of the Interior) asked him, as the owner of the vehicle by means of which the offence had been committed, to identify the perpetrator of the offence or driver of the vehicle, in other words, himself. This request was made on the basis of article 72 (3) of Royal Legislative Decree No. 339/1990 (Road Safety Act—Ley de Seguridad Vial (LSV)), which states: ‘The owner of the vehicle, on being duly asked to do so, has the duty to identify the driver responsible for the offence; if he fails to fulfil this obligation promptly without justified cause, he shall be liable to a fine for having committed a serious misdemeanour’. ¶2.2. Pursuant to this request and exercising the fundamental right not to confess guilt, Mr Sánchez López sent the traffic authorities a letter in which he stated that he was not the driver of the vehicle and did not know who had been driving it since he had lent it to 169

(1995) UN doc CCPR/C/79/Add.55. See also Concluding Observations on Ireland (2000) UN doc A/55/40, paras 422–51, para 15, and Concluding Observations on the United Kingdom (2001) UN doc CCPR/CO/73/UK, para 17; see also S Bailey, ‘Rights in the Administration of Justice’, in D Harris and S Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (Clarendon Press, 1995), 232–4. See also N Rodley, ‘Rights and Responses to Terrorism’, in same volume at 137–9, who argues that the abolition of the right to silence in Northern Ireland breached art 14(3)(g) as well as the guarantee of a presumption of innocence in art 14(2). 170

Right to a Fair Trial

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several people during that period. As the perpetrator of a serious misdemeanour, he was fined 50,000 pesetas (the speeding fine was 25,000 pesetas). . . . ¶3.1. Counsel maintains that the author has been the victim of a violation of article 14, paragraph 3 (g), of the Covenant in that he has been obliged to confess guilt to the extent that the request for identification was addressed to the owner of the vehicle, who was in fact the driver responsible for the offence. In this case he is being obliged to make a self-accusatory statement, which contravenes the right protected in the Covenant.

The State Party submitted the following arguments: ¶4.2. . . . The facts are not contested by the State party but it considers that there has not been a violation of any of the rights protected in the Covenant, since the potential danger constituted by a motor vehicle requires that road traffic should be rigorously protected. ¶4.3. [The State party] draws attention to the obligation under Spanish law whereby the offence should be ‘personalised’. The offence cannot automatically be attributed to the owner of the vehicle, and so the law requires that the perpetrator of the offence should be personally identified. He may or may not be the owner and, if the owner of the vehicle is a juridical entity, they will certainly not be the same. . . .

The HRC found in favour of the State Party: ¶6.4. With regard to the claim that the author’s rights to the presumption of innocence and the right not to testify against himself as protected by article 14, paragraphs 2 and 3 (g) of the Covenant were violated by the Spanish State, since he had to identify the owner of the vehicle reported for committing a traffic offence, the Committee considers that the documentation in its possession shows that the author was punished for non-cooperation with the authorities and not for the traffic offence. The Human Rights Committee considers that a penalty for failure to cooperate with the authorities in this way falls outside the scope of application of the above-mentioned paragraphs of the Covenant. Accordingly, the communication is held to be inadmissible under article 1 of the Optional Protocol.

The author was not convicted of speeding, but of failure to cooperate with the authorities. The latter conviction arose because he failed to identify the driver of a speeding vehicle, that is he refused to incriminate himself. The HRC’s finding seems to turn on a very fine point regarding the actual charge ultimately sustained against the author. The HRC may have been swayed by the Spanish arguments, which correctly indicated that compulsory driver identification by the vehicle owner, which may occasionally result in compulsory self-incrimination, is presently the only way of identifying speeding motorists ‘caught’ by police radar. The HRC is then implicitly endorsing police radars and cameras as legitimate means of enforcing traffic rules. It is to be hoped that modern technology does not lead to a diminution of the scope of article 14(3)(g) with regard to more serious offences.

Article 14(4)—Rights of a Juvenile Accused [14.183]

GENERAL COMMENT 32

¶42. Article 14, paragraph 4, provides that in the case of juvenile persons, procedures should take account of their age and the desirability of promoting their rehabilitation.

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The ICCPR

Juveniles are to enjoy at least the same guarantees and protection as are accorded to adults under article 14 of the Covenant. In addition, juveniles need special protection. In criminal proceedings they should, in particular, be informed directly of the charges against them and, if appropriate, through their parents or legal guardians, be provided with appropriate assistance in the preparation and presentation of their defence; be tried as soon as possible in a fair hearing in the presence of legal counsel, other appropriate assistance and their parents or legal guardians, unless it is considered not to be in the best interest of the child, in particular taking into account their age or situation. Detention before and during the trial should be avoided to the extent possible. ¶43. States should take measures to establish an appropriate juvenile criminal justice system, in order to ensure that juveniles are treated in a manner commensurate with their age. It is important to establish a minimum age below which children and juveniles shall not be put on trial for criminal offences; that age should take into account their physical and mental immaturity. ¶44. Whenever appropriate, in particular where the rehabilitation of juveniles alleged to have committed acts prohibited under penal law would be fostered, measures other than criminal proceedings, such as mediation between the perpetrator and the victim, conferences with the family of the perpetrator, counselling or community service or educational programmes, should be considered, provided they are compatible with the requirements of this Covenant and other relevant human rights standards.

In Concluding Observations on Belgium, the HRC confirmed that persons aged under 18 (‘minors between the ages of 16 and 18’) should not be tried as adults.171 [14.184] Article 14(4) mirrors article 10(3), which provides for special detention facilities for juveniles.172 Article 24 generally protects the rights of children, and probably subsumes the article 14(4) guarantee. Examples of cases in which violations of article 14(4) were found, as well as other serious violations of article 14, are Rakhmatov et al v Tajikistan (1209, 1231/203, and 1241/04) and Koreba v Belarus (1390/05). [14.185] In Concluding Observations on Israel,173 the HRC stated: ¶22. The Committee is concerned at a number of differences in the juvenile justice system between that operating under Israeli legislation and that under military orders in the West Bank. Under military orders, children of the age of 16 are tried as adults, even if the crime was committed when they were below the age of 16. Interrogations of children in the West Bank are conducted in the absence of parents, close relatives or a lawyer and are not audio-visually recorded. The Committee is further concerned at allegations that children detained under military orders are not promptly informed, in a language which they understand, of the charges against them and that they may be detained up to eight days before being brought before a military judge. It is also very concerned at allegations of torture, cruel, inhuman or degrading treatment of juvenile offenders (arts. 7, 14 and 24).

171 172

(2010) UN doc CCPR/C/BEL/CO/5, para 23. See [9.237]ff.

173

(2010) UN doc CCPR/C/ISR/CO/3.

Right to a Fair Trial

507

The State Party should: (a) Ensure that children are not tried as adults; (b) Refrain from holding criminal proceedings against children in military courts, ensure that children are only detained as a measure of last resort and for the shortest possible time, and guarantee that proceedings involving children are audio-visually recorded and that trials are conducted in a prompt and impartial manner, in accordance with fair trial standards; (c) Inform parents or close relatives of where the child is detained and provide the child with prompt access to free and independent legal assistance of its own choosing; (d) Ensure that reports of torture or cruel, inhuman or degrading treatment of detained children are investigated promptly by an independent body. [14.186] In Concluding Observations on the United Kingdom, the HRC stated:174 ¶20. The Committee is concerned that despite anti-social behaviour orders (ASBOs) being civil orders, their breach constitutes a criminal offence which is punishable by up to five years in prison. The Committee is especially concerned with the fact that ASBOs can be imposed on children as young as 10 in England and Wales and 8 in Scotland, and with the fact that some of these children can subsequently be detained for up to two years for breaching them. The Committee is also concerned with the manner in which the names and photographs of persons subject to ASBOs (including children) are frequently widely disseminated in the public domain (arts. 14, para. 4 and 24). The State party should . . . ensure that young children are not detained as a result of breaching the conditions of their ASBOs and that the privacy rights of children and adults subject to ASBOs are respected.

Article 14(5)—Right to an Appeal in Criminal Cases [14.187]

GENERAL COMMENT 32

¶45. Article 14, paragraph 5 of the Covenant provides that anyone convicted of a crime shall have the right to have their conviction and sentence reviewed by a higher tribunal according to law. As the different language versions (crime, infraction, delito) show, the guarantee is not confined to the most serious offences. The expression ‘according to law’ in this provision is not intended to leave the very existence of the right of review to the discretion of the States parties, since this right is recognised by the Covenant, and not merely by domestic law. The term according to law rather relates to the determination of the modalities by which the review by a higher tribunal is to be carried out, as well as which court is responsible for carrying out a review in accordance with the Covenant. Article 14, paragraph 5 does not require States parties to provide for several instances of appeal. However, the reference to domestic law in this provision is to be interpreted to mean that if domestic law provides for further instances of appeal, the convicted person must have effective access to each of them. . . . 174

(2008) UN doc CCPR/C/GBR/CO/6.

508

The ICCPR

¶48. The right to have one’s conviction and sentence reviewed by a higher tribunal established under article 14, paragraph 5, imposes on the State party a duty to review substantively, both on the basis of sufficiency of the evidence and of the law, the conviction and sentence, such that the procedure allows for due consideration of the nature of the case. A review that is limited to the formal or legal aspects of the conviction without any consideration whatsoever of the facts is not sufficient under the Covenant. However, article 14, paragraph 5 does not require a full retrial or a ‘hearing’, as long as the tribunal carrying out the review can look at the factual dimensions of the case. Thus, for instance, where a higher instance court looks at the allegations against a convicted person in great detail, considers the evidence submitted at the trial and referred to in the appeal, and finds that there was sufficient incriminating evidence to justify a finding of guilt in the specific case, the Covenant is not violated.

Article 14(5) applies only to criminal appeals.175 The only potential protection for a right of appeal in civil trials derives from article 14(1). In IP v Finland (450/91), the HRC has indicated that the ICCPR does not guarantee a right of appeal in civil proceedings [14.47]. [14.188] The following cases detail some of the requirements of an appeal for the purposes of article 14(5). DOMUKOVSKY et al v GEORGIA (623–4, 626–7/95) ¶18.11. The Committee notes from the information before it that the authors could not appeal their conviction and sentence, but that the law provides only for a judicial review, which apparently takes place without a hearing and is on matters of law only. The Committee is of the opinion that this kind of review falls short of the requirements of article 14, paragraph 5, of the Covenant, for a full evaluation of the evidence and the conduct of the trial and, consequently, that there was a violation of this provision in respect of each author.

GÓMEZ VAZQUEZ v SPAIN (701/96) ¶11.1. . . . The information and documents submitted by the State party do not refute the author’s complaint that his conviction and sentence were not fully reviewed. The Committee concludes that the lack of any possibility of fully reviewing the author’s conviction and sentence . . . , the review having been limited to the formal or legal aspects of the conviction, means that the guarantees provided for in article 14, paragraph 5, of the Covenant have not been met. The author was therefore denied the right to a review of his conviction and sentence, contrary to article 14, paragraph 5, of the Covenant.176

BANDAJESKY v BELARUS (1100/02) ¶10.13. . . . The Committee recalls that even if a system of appeal may not be automatic, the right to appeal within the meaning of article 14, paragraph 5, imposes on States parties a duty substantially to review conviction and sentence, both as to sufficiency of the evidence and of the law. . . . 175

See also General Comment 32, para 46. This decision was followed in Semey v Spain (986/01) and Sineiro Fernández v Spain (1007/01). 176

Right to a Fair Trial

509

UCLÉS v SPAIN (1364/05) ¶11.3. The Committee recalls that, although a retrial or new hearing are not required under article 14, paragraph 5, the court conducting the review must be able to examine the facts of the case, including the incriminating evidence. As noted . . . above, the Supreme Court itself stated that it could not reassess the evidence evaluated by the trial court. The Committee concludes that the review conducted by the Supreme Court was limited to a verification of whether the evidence, as assessed by the first instance judge, was lawful, without assessing the sufficiency of the evidence in relation to the facts that would justify the conviction and sentence imposed. It did not, therefore, constitute a review of the conviction as required by article 14, paragraph 5, of the Covenant.

Thus, one has a right to review of one’s conviction and one’s sentence, including of both factual evidence and questions of law.177 [14.189]

PERERA v AUSTRALIA (536/93)

¶6.4. . . . The Committee observes that article 14, paragraph 5, does not require that a Court of Appeal proceed to a factual retrial, but that a Court conduct an evaluation of the evidence presented at the trial and of the conduct of the trial. . . .

HTB v CANADA (534/93) ¶4.3. As regards the author’s claim that his right to fair trial has been violated, because he was not allowed to produce evidence with regard to his defence of insanity before the Court of Appeal of Ontario, the Committee notes that this defence had already been available to the author during trial at first instance, but that he made a conscious decision not to use it. The Committee further notes that the author’s conviction and sentence was reviewed by the Court of Appeal of Ontario, and that the Court decided not to admit the evidence relating to the defence of insanity, in accordance with Canadian law which prescribes that fresh evidence will generally not be admitted if it could have been adduced at trial. . . . In the circumstances of the instant case, the Committee concludes that this part of the communication is therefore inadmissible under article 3 of the Optional Protocol.

One does not have a right to a hearing de novo.178 For example, the admissibility of new evidence upon appeal can be restricted where such evidence was in fact available during the trial at first instance.179 [14.190] Article 14(5) guarantees a right to an appeal ‘according to law’, which presumably refers to the State Party’s domestic law. However, as confirmed in General Comment 32 [14.187], this does not mean a State can undercut article 14(5) protection by adopting a perverse law, which denies access to criminal appeals.180 This point is addressed in the next case.

177 See also Alba Cabriada v Spain (1101/02) and Hens Serena and Corujo Rodriguez v Spain (1351–1352/2005). 178 See also Donskov v Russian Federation (1149/02) and Larrañaga v Philippines (1421/05). 179 See also Berry v Jamaica (330/88), para 11.6. 180 See also [11.92] and [16.06]ff on the interpretation of the word ‘lawful’ in the context of other ICCPR rights.

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The ICCPR SALGAR de MONTEJO v COLOMBIA (64/79)

¶7.1. . . . [T]he State party [argued] that article 14 (5) of the Covenant establishes the general principle of review by a higher tribunal without making such a review mandatory in all possible cases involving a criminal offence since the phrase ‘according to the law’ leaves it to national law to determine in which cases and circumstances application may be made to a higher court. It explained that under the legal regime in force in Colombia, criminal offences are divided into two categories, namely delitos and contravenciones and that convictions for all delitos and for almost all contravenciones are subject to review by a higher court. It added that Consuelo Salgar de Montejo committed a contravencion which the applicable legal instrument, namely Decree No. 1923 of 1978, did not make subject to review by a higher court. . . .

The HRC found a violation of article 14(5), and replied to the State’s argument as follows: ¶10.4. The Committee considers that the expression ‘according to law’ in article 14(5) is not intended to leave the very existence of the right of appeal to the discretion of the State parties, since the rights are those recognised by the Covenant, and not merely those recognised by domestic law. Rather, what is to be determined ‘according to law’ is the modalities by which the review by a higher tribunal is to be carried out. It is true that the Spanish text of article 14(5) . . . refers only to un delito, while the English text refers to a ‘crime’, and the French text refers to une infraction. Nevertheless the Committee is of the view that the sentence of imprisonment imposed on Mrs Consuelo Salgar de Montejo, even though the offence is defined as a contravención in domestic law, is serious enough, in all the circumstances, to require a review by a higher tribunal as provided for in article 14, paragraph 5 of the Covenant.

[14.191] The HRC has confirmed in RM v Finland (301/88),181 Bryhn v Norway (789/97),182 Sama v Germany (1771/08), and Donskov v Russian Federation (1149/02) that appeals may be conducted in writing, rather than orally.183 [14.192] The following case addresses the article 14(5) compatibility of systems, such as common law systems, where one does not have an appeal as of right, but must seek leave to appeal. LUMLEY v JAMAICA (662/95) ¶7.3. It further appears from the documents that leave to appeal was refused by a single judge whose decision was confirmed by the Court of Appeal. The judge refused leave of appeal only after a review of the evidence presented during the trial and after an evaluation of the judge’s instructions to the jury. While on the basis of article 14, paragraph 5, every convicted person has the right to his conviction and sentence being reviewed by a higher tribunal according to law, a system not allowing for automatic right to appeal may still be

181

At para 6.4. At para 7.2. 183 See also Dudko v Australia (1347/05), para 7.2 [14.23]. A breach of art 14(1) was found in Karttunen v Finland (387/89) regarding the State’s failure to provide for an oral appeal in a civil matter, but the relevant trial was tainted for other reasons, thus necessitating a thorough re-evaluation of the issues upon appeal [14.67]. 182

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in conformity with article 14, paragraph 5, as long as the examination of an application for leave to appeal entails a full review, that is, both on the basis of the evidence and of the law, of the conviction and sentence and as long as the procedure allows for due consideration of the nature of the case. Thus, in the circumstances, the Committee finds that no violation of article 14, paragraph 5 occurred in this respect.

Lumley was followed in this respect by Rogerson v Australia (802/98).184 While such systems are compatible with article 14(5), it is incompatible with that provision for the availability of an appeal to be at the total discretion of the appeal court. A person is at least entitled to have an appellate court fully review the evidence and application of law in the initial trial.185 In Mennen v Netherlands (1797/08), the HRC majority found a violation of article 14(5) entailed in the denial of an appeal to a person regarding an administrative offence on the basis that ‘the appeal was not in the interests of the proper administration of justice and that counsel’s contentions were not supported in law’.186 [14.193] The following case addresses whether one has a right to more than one appeal under article 14(5): HENRY v JAMAICA (230/87)187 ¶8.4. It remains for the Committee to decide whether the failure of the Court of Appeal of Jamaica to issue a written judgement violated any of the author’s rights under the Covenant. Article 14, paragraph 5, of the Covenant guarantees the right of convicted persons to have the conviction and sentence reviewed ‘by a higher tribunal according to law’. In this context, the author has claimed that, because of the non-availability of the written judgement, he was denied the possibility of effectively appealing to the Judicial Committee of the Privy Council, which allegedly routinely dismisses petitions which are not accompanied by the written judgement of the lower court. In this connection, the Committee has examined the question whether article 14, paragraph 5, guarantees the right to a single appeal to a higher tribunal or whether it guarantees the possibility of further appeals when these are provided for by the law of the State concerned. The Committee observes that the Covenant does not require States parties to provide for several instances of appeal. However, the words ‘according to law’ in article 14, paragraph 5, are to be interpreted to mean that if domestic law provides for further instances of appeal, the convicted person must have effective access to each of them. Moreover, in order to enjoy the effective use of this right, the convicted person is entitled to have, within a reasonable time, access to written judgements, duly reasoned, for all instances of appeal. Thus, while Mr Henry did exercise a right to appeal to ‘a higher tribunal’ by having the judgement of the Portland Circuit Court reviewed by the Jamaican Court of Appeal, he still has a right to a higher appeal protected by article 14, paragraph 5, of the Covenant, because article 110 of the Jamaican Constitution provides for the possibility of appealing from a decision of the Jamaican Court of Appeal to the Judicial Committee of the Privy Council in London. The Committee therefore finds that Mr Henry’s right under article 14, paragraph 5, was violated by the failure of the Court of Appeal to issue a written judgement. At para 7.5. See also Juma v Australia (984/01), para 7.5. See Gelazauskas v Lithuania (836/98) and Ratiani v Georgia (975/01). At para 8.3. 187 See also Douglas, Gentles and Kerr v Jamaica (352/89), para 11.2. 184 185 186

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Thus, one has a right to only one appeal under article 14(5).188 However, when a State Party’s legal system provides for more appeals, the author must be given a fair opportunity to pursue these further appeals. [14.194]

GENERAL COMMENT 32

¶49. The right to have one’s conviction reviewed can only be exercised effectively if the convicted person is entitled to have access to a duly reasoned, written judgement of the trial court, and, at least in the court of first appeal where domestic law provides for several instances of appeal, also to other documents, such as trial transcripts, necessary to enjoy the effective exercise of the right to appeal. The effectiveness of this right is also impaired, and article 14, paragraph 5 violated, if the review by the higher instance court is unduly delayed in violation of paragraph 3 (c) of the same provision.

[14.195]

MENNEN v THE NETHERLANDS (1797/08)

¶8.2. As to the author’s claim that he has not been able to exercise his right to appeal under article 14, paragraph 5, in an effective and meaningful way, since he did not have access to a duly reasoned, written judgment of the trial court and to other documents such as trial transcripts, the Committee notes that the State party confirmed that in the present case no such document had been produced. The Committee notes the State party’s submission that the author’s counsel was provided with a number of official police reports on the case prior to his application for leave to appeal, without specifying their content and relevance to the verdict. The Committee, however, observes that these reports could not have provided guidance as to the motivation of the first instance court in convicting the author of a criminal offence, nor indication on what particular evidence the court had relied. The Committee recalls its established practice that in appellate proceedings guarantees of a fair trial are to be observed, including the right to have adequate facilities for the preparation of his defence. In the circumstances of the instant case, the Committee does not consider that the reports provided, in the absence of a motivated judgment, a trial transcript or even a list of the evidence used, constituted adequate facilities for the preparation of the author’s defence.

[14.196] Henry v Jamaica (230/87) also confirmed that prospective appellants must have access to all judgments and documents necessary to ‘enjoy the effective exercise of the right to appeal’.189 [14.197]

ABOUSHANIF v NORWAY (1542/07)

¶7.2. The Committee notes the author’s claim that his rights under article 14, paragraph 5, to have his conviction and sentence reviewed by a higher tribunal was violated, because the decision of the Court of Appeal did not disclose the reasons for disallowing his appeal against the District Court. The Committee also notes that the decision to reject the appeal was unanimous and subscribed to by three professional judges, and that the decision was later appealed and subjected to the scrutiny of the Supreme Court, albeit only on procedural grounds. The Committee recalls its jurisprudence, according to which, while States parties are free to set the modalities of appeal, under article 14, paragraph 5, they are under an 188 189

See also Rouse v Philippines (1089/02), para 7.6. At para 8.4; see also Lumley v Jamaica (662/95), para 7.5 [14.192].

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obligation to review substantially the conviction and sentence. In the present case, the judgment of the Court of Appeal does not provide any substantive reason at all as to why the court determined that it was clear that the appeal would not succeed, which puts into question the existence of a substantial review of the author’s conviction and sentence. The Committee considers that, in the circumstances of the case, the lack of a duly reasoned judgment, even if in brief form, providing a justification for the court’s decision that the appeal would be unsuccessful, impairs the effective exercise of the right to have one’s conviction reviewed as required by article 14, paragraph 5, of the Covenant.

Therefore, reasons must be given when an appeal is completed, or when leave to appeal has been denied.190 However, in Jessop v New Zealand (1758/08), the dismissal of a second criminal appeal in a short four-paragraph judgment without an oral hearing did not breach article 14. In its decision, the HRC focused on the fact that appeals do not require oral hearings, rather than the short reasoning. Perhaps the short reasons were justified as the earlier trial and appeal had been reasoned.191 [14.198]

GOMARIZ VALERA v SPAIN (1095/02)

The author was acquitted in his original criminal trial. However, he was convicted and sentenced upon appeal. He claimed that no effective appeal was available from that decision. The HRC found a violation of article 14(5): ¶7. . . . Article 14, paragraph 5, not only guarantees that the judgement will be placed before a higher court, as happened in the author’s case, but also that the conviction will undergo a second review, which was not the case for the author. Although a person acquitted at first instance may be convicted on appeal by the higher court, this circumstance alone cannot impair the defendant’s right to review of his conviction and sentence by a higher court, in the absence of a reservation by the State party. The Committee accordingly concludes that there has been a violation of article 14, paragraph 5, of the Covenant with regard to the facts submitted in the communication. . . .

The HRC confirmed that one must always be able to appeal a conviction or a sentence. Therefore, such an appeal must be available when a new conviction is found by an appellate court, including a final court of appeal.192 [14.199]

ESCOLAR v SPAIN (1156/03)

This case was distinguished from Gomariz Valera and no violation was found: ¶9.2. In a previous case (communication No. 1095/2002, Gomariz v. Spain . . . ) the Committee held that the absence of a right of review by a higher court of a conviction imposed by an appeal court following acquittal by a lower court constituted a violation of article 14, paragraph 5, of the Covenant. The present case is different in that the conviction by the lower court

Reid v Jamaica (355/89), para 14.3. See also Verlinden v Netherlands (1187/03) [14.89]. 192 See also Conde Conde v Spain (1325/04), Larrañaga v Philippines (1421/05), Bruges v Colombia (1641/07), Sánchez and Clares v Spain (1332/04), Terrón v Spain (1073/02), Khalilov v Tajikistan (973/01), and Capellades v Spain (1211/03). See also General Comment 32, para 47. Compare Morael v France (207/86) [14.87]. 190 191

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was confirmed by the Supreme Court. That court, however, increased the penalty imposed by the lower court in respect of the same offence. The Committee notes that in the legal systems of many countries appeal courts may lower, confirm or increase the penalties imposed by the lower courts. Although the Supreme Court in the present case took a different view of the facts found by the lower court, in that it concluded that the author was a principal, and not merely an accessory, in relation to the misappropriation offence, in the Committee’s view the finding of the Supreme Court did not change the essential characterization of the offence but merely reflected the Supreme Court’s assessment that the seriousness of the circumstances of the offence merited a higher penalty. Thus there is no basis for a finding of violation in this case of article 14, paragraph 5, of the Covenant.

Hence, a further appeal need not be available where an appellate court confirms a conviction and increases a sentence. [14.200]

ESTEVILL v SPAIN (1004/01)

This case demonstrates that one may waive one’s article 14(5) rights by consenting to, or demanding, a trial at first instance in the State’s highest court. ¶6.2. The only complaint by the author is related to article 14, paragraph 5, of the Covenant . . . The Committee notes that the State party’s legal system would have granted the right of appeal if the author had been tried by the High Court of Catalonia. However, it was the author himself who repeatedly insisted that he be tried directly by the Supreme Court. Bearing in mind that the author is a former judge with a great deal of experience, the Committee considers that, by insisting on being tried only by the Supreme Court, the author has renounced his right of appeal. The Committee considers that, in the circumstances, the allegation by the author . . . constitutes an abuse of the right to submit communications, in accordance with article 3 of the Optional Protocol.

[14.201] As with a person’s rights in trials at first instance, a person’s right of competent counsel in criminal appeals is limited. The HRC is hesitant to find that counsel’s tactics in appeals breach an accused’s right to appeal; these tactics are essentially a matter of counsel’s professional judgment.193 [14.202] Many cases regarding the article 14(3)(c) right to an expeditious criminal trial have concerned delays occurring during the appeal process. Consequently, these cases have also entailed breaches of article 14(5).194 [14.203]

SHCHETKA v UKRAINE (1535/06)

¶9.4. As to the author’s claim that the refusal of the General Prosecutor to reconsider the criminal case of her son based on newly discovered facts after the Supreme Court decided the cassation appeal amounts to a violation of article 14, paragraph 5, of the Covenant, the Committee considers that the scope of article 14, paragraph 5 does not extend to a review of a conviction and sentence based on newly discovered facts once this sentence has become final. Therefore, the Committee considers that the author’s claim under article 14, paragraph 5, is incompatible ratione materiae with the provisions of the Covenant and declares it inadmissible in accordance with article 3 of the Optional Protocol. 193

See eg Tomlin v Jamaica (589/94), para 8.2.

194

See also [14.139].

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Article 14(5) confers no right to a review of one’s conviction in the light of fresh evidence. It is interesting to speculate on whether such a right arises at all in the ICCPR. Functionally, such a right is important given the right in article 14(6), discussed directly below, to compensation for a miscarriage of justice.

Article 14(6)—Right to Compensation for Miscarriage of Justice [14.204]

GENERAL COMMENT 32

¶52. According to paragraph 6 of article 14 of the Covenant, compensation according to the law shall be paid to persons who have been convicted of a criminal offence by a final decision and have suffered punishment as a consequence of such conviction, if their conviction has been reversed or they have been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice. It is necessary that States parties enact legislation ensuring that compensation as required by this provision can in fact be paid and that the payment is made within a reasonable period of time. ¶53. This guarantee does not apply if it is proved that the non-disclosure of such a material fact in good time is wholly or partly attributable to the accused; in such cases, the burden of proof rests on the State. . . .

[14.205] It is uncertain whether a ‘miscarriage of justice’ can occur in the absence of some form of State malfeasance, such as police or prosecutorial misbehaviour during relevant investigations or proceedings (eg framing the suspect, withholding evidence from the defence). Of course, an innocent person can still be found guilty in a trial where all due process rights have been complied with, and where all State agents act properly. Should a State be held accountable, by having to pay compensation to that innocent person, in such circumstances?195 [14.206] Furthermore, it is uncertain what level of ‘innocence’ must be established before article 14(6) is triggered. Stavros has suggested that a beneficiary of article 14(6) must be found to be ‘clearly innocent’, rather than one who has simply had fresh doubts raised about his/her guilt.196 The issue was raised but not answered by the majority in Dumont v Canada (1467/06) [14.209]. [14.207]

MUHONEN v FINLAND (89/81)

The author had been convicted of refusal to perform armed service in Finland. He had failed at first instance to establish that he was a conscientious objector, which would have exempted him from military duty. His second application for conscientious objector status succeeded, after he had served eight months of an 11-month sentence. Consequently, the author was pardoned, and was released 195 See also D Harris, ‘The Right to a Fair Trial in Criminal Procedures as a Human Right’ (1967) 16 ICLQ 352, 375. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 354, merely notes that art 14(6) does not apply where non-disclosure of the fact can be attributed to the person convicted, who may conceal his/her own innocence in order to avoid betraying another. 196 S Stavros, The Guarantees of Accused Persons under Article 6 of the European Convention on Human Rights (Martinus Nijhoff, 1993), 300.

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two weeks later. He complained of a breach of article 14(6), entailed in the State’s refusal to grant him monetary relief for time served. The HRC found in favour of the State Party in the following terms: ¶11.2. . . . [An article 14(6)] right to compensation may arise in relation to criminal proceedings if either the conviction of a person has been reversed or if he or she ‘has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice’. As far as the first alternative is concerned, the Committee observes that Mr Muhonen’s conviction, as pronounced in the judgement of the city court of Joensuu on 13 December 1978 and confirmed by the Eastern Finland Higher Court on 26 October 1979, has never been set aside by any later judicial decision. Furthermore, Mr Muhonen was not pardoned because it had been established that his conviction rested on a miscarriage of justice. According to the relevant Finnish statute, the law concerning the punishment of certain conscripts who decline to do military service (23/72), whoever refuses military service not having been recognised as a conscientious objector by the Examining Board commits a punishable offence. This means that the right to decline military service does not arise automatically once the prescribed substantive requirements are met, but only after due examination and recognition of the alleged ethical grounds by the competent administrative body. Consequently, the presidential pardon does not imply that there had been a miscarriage of justice. As the State party has pointed out in its submission of 22 October 1984, Mr Muhonen’s pardoning was motivated by considerations of equity. ¶11.3. To be sure, Mr Muhonen’s conviction came about as a result of the decision of the Examining Board of 18 October 1977, denying him the legal status of conscientious objector. This decision was based on the evidence which the Examining Board had before it at that time. Mr Muhonen succeeded in persuading the Examining Board of his ethical objection to military service only after he had personally appeared before that body following his renewed application in the autumn of 1980, while in 1977 he had failed to avail himself of the opportunity to be present during the Examining Board’s examination of his case. ¶12. Accordingly, the Human Rights Committee is of the view that Mr Muhonen has no right to compensation which the Finnish authorities have failed to honour and that consequently there has been no breach of article 14 (6) of the Covenant.

[14.208]

WJH v THE NETHERLANDS (408/90)

In this case, the author was convicted at first instance of a number of offences, including forgery and fraud. However, he served no time in detention, apart from two months of pre-trial detention. Subsequent Supreme Court proceedings set aside the verdict, and the matter was sent back to the lower courts, which subsequently acquitted him on procedural grounds, as some evidence against him had been irregularly obtained.197 He claimed, inter alia, a breach of article 14(6), as he was not granted compensation for the initial ‘wrong’ conviction. The HRC found this complaint inadmissible: ¶6.3. With regard to the author’s claim for compensation under article 14, paragraph 6, . . . the Committee observes that the conditions for the application of this article are: (a) A final conviction for a criminal offence; (b) Suffering of punishment as a consequence of such conviction; and 197

At para 2.2.

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(c) A subsequent reversal or pardon on the ground of a new or newly discovered fact showing conclusively that there has been a miscarriage of justice. The Committee observes that since the final decision in this case, that of the Court of Appeal of 11 May 1988, acquitted the author, and since he did not suffer any punishment as a result of his earlier conviction of 24 December 1985, the author’s claim is outside the scope of article 14, paragraph 6, of the Covenant.

Thus, a miscarriage of justice may occur only after a matter is finally disposed of by all potential appeal courts. Note that the author’s conviction here was not a final decision; the relevant final decision was his acquittal after a number of appeals. Miscarriages of justice can therefore be distinguished from acquittals on appeal. Furthermore, pre-trial detention and the costs incurred in being forced to defend oneself in criminal proceedings do not constitute a ‘punishment’ for the purposes of article 14(6).198 WJH has been followed in Uebergang v Australia (963/01), Irving v Australia (880/99), and Anderson v Australia (1367/05). [14.209]

DUMONT v CANADA (1467/06)

The facts are evident from the HRC’s finding of violation: ¶23.3. In this case, the author was convicted of a criminal offence by a final decision and was sentenced to a term of imprisonment of 52 months. He was held in prison for a total of 34 months. On 22 February 2001, the Court of Appeal of Quebec acquitted the author of all the charges against him ‘in view of the fact that the new evidence which has come to light would not permit a reasonable jury acting on correct instructions to find the appellant [the author] guilty beyond all reasonable doubt’. ¶23.4. The Committee notes the State party’s argument that it had not been established that the author did not commit the crime in question and that his factual innocence had therefore not been proven. The State party submits that it is of the view that a miscarriage of justice within the meaning of article 14 (6) of the Covenant occurs only when the convicted person is in fact innocent (factual innocence) of the offence with which he is charged. It also explains that in the Canadian penal system, with its common-law tradition, the subsequent acquittal of a convicted person does not imply innocence, unless expressly stated by the court due to evidence to that effect. ¶23.5. In this case, without prejudice to the Committee’s position on the accuracy of the State party’s interpretation of article 14, paragraph 6, of the Covenant and its implications for the presumption of innocence, it observes that the author’s conviction was primarily based on the victim’s statements and that the doubts expressed by the victim after March 1992 concerning her assailant led to the reversal of the author’s conviction on 22 February 2001. It further notes that, in the event of acquittal of the person prosecuted, the State party has no procedure for launching a new investigation in order to review the case and to possibly identify the real perpetrator. The Committee therefore considers that the author should not be held responsible for this situation. ¶23.6. Consequently, owing to this gap, and to delays in the civil proceedings, which have been pending for nine years, the author has been deprived of an effective remedy to enable 198

Compensation for arbitrary pre-trial detention can be gained under art 9(5).

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him to establish his innocence, as required by the State party in order to obtain the compensation provided for in article 14, paragraph 6. The Committee therefore notes a violation of article 2, paragraph 3, read in conjunction with article 14, paragraph 6, of the Covenant.

This is the first case in which a violation involving article 14(6) has been found. The actual violation was of article 2(3) in conjunction with article 14(6). The HRC did not decide whether a person must be proven to be innocent in order to have rights under article 14(6), as had been argued by Canada. It found a violation of article 14(6) in conjunction with the right to a remedy, article 2(3), as no procedure had been undertaken to give Dumont an opportunity to establish his innocence, as required by Canadian law. Mr Salvioli, in a separate opinion, went further in finding a violation of article 14(6) alone, as he believed a requirement that a person prove innocence in order to access compensation was too onerous, and incompatible with the ICCPR.

Article 14(7)—Freedom from Double Jeopardy [14.210]

GENERAL COMMENT 32

¶54. Article 14, paragraph 7 of the Covenant, providing that no one shall be liable to be tried or punished again for an offence of which they have already been finally convicted or acquitted in accordance with the law and penal procedure of each country, embodies the principle of ne bis in idem. This provision prohibits bringing a person, once convicted or acquitted of a certain offence, either before the same court again or before another tribunal again for the same offence; thus, for instance, someone acquitted by a civilian court cannot be tried again for the same offence by a military or special tribunal. Article 14, paragraph 7 does not prohibit retrial of a person convicted in absentia who requests it, but applies to the second conviction. . . . ¶57. This guarantee applies to criminal offences only and not to disciplinary measures that do not amount to a sanction for a criminal offence within the meaning of article 14 of the Covenant. . . .

[14.211] Examples of findings of breach of article 14(7) arose in Babkin v Russian Federation (1310/04) and Sobhraj v Nepal (1870/09). In Concluding Observations on Israel, the HRC stated that the ‘[r]epeated imprisonment for refusal to serve in the armed forces may constitute a violation of the principle of ne bid in idem, and should therefore be ceased’.199 [14.212] In Fardon v Australia (1629/07) and Tillman v Australia (1635/07), the complaints concerned sentences of preventive detention which were imposed on convicted sex offenders after they had finished their sentences. Those periods of detention were found to breach article 9 [11.35]. It seems quite likely that those extra periods of detention, imposed for no further crime, breached article 14(7) too.

199

(2010) UN doc CCPR/C/ISR/CO/3, para 19.

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[14.213] The deportation of a resident alien on the basis of his criminal record did not raise admissible issues under article 14(7) in Nystrom v Australia (1557/07), as the author could not show that the deportation was executed to punish him rather than to protect the local population.200 [14.214]

AP v ITALY (204/86)

The facts are outlined directly below: ¶2.1. The author states that he was convicted on 27 September 1979 by the Criminal Court of Lugano, Switzerland, for complicity in the crime of conspiring to exchange currency notes amounting to the sum of 297,650,000 lire, which was the ransom paid for the release of a person who had been kidnapped in Italy in 1978. He was sentenced to two years’ imprisonment, which he duly served. He was subsequently expelled from Switzerland. ¶2.2. It is claimed that the Italian Government, in violation of the principle of ne bis in idem, is now seeking to punish the author for the same offence as that for which he had already been convicted in Switzerland. He was thus indicted by an Italian court in 1981 (after which he apparently left Italy for France) and on 7 March 1983 the Milan Court of Appeal convicted him in absentia. . . .

The HRC found that the principle in article 14(7) did not apply: ¶7.3. With regard to the admissibility of the communication under article 3 of the Optional Protocol, the Committee has examined the State party’s objection that the communication is incompatible with the provisions of the Covenant, since article 14, paragraph 7, of the Covenant, which the author invokes, does not guarantee ne bis in idem with regard to the national jurisdictions of two or more States. The Committee observes that this provision prohibits double jeopardy only with regard to an offence adjudicated in a given State.

From a humanitarian point of view, the AP principle is to be regretted. If a State has imposed an adequate penalty on a person for an offence, it should not be permissible for that person to be tried for the same offence in another jurisdiction.201 The AP decision was nevertheless followed in ARJ v Australia (692/96)202 as well as General Comment 32. In the General Comment though, the HRC added that the non-application of article 14(7) between States should not ‘undermine efforts by States to prevent retrial for the same criminal offence through international conventions’.203 [14.215] In Jijón v Ecuador (277/88), the author’s reindictment for a charge for which he had already been convicted was ultimately quashed by the Superior Court. Thus, no breach of article 14(7) was found.204 200

At para 6.4. Indeed, the AP principle does not seem to conform with the principle of ne bis in idem (art 20) in the Rome Statute of the International Criminal Court, which prohibits a State from trying someone for the same crimes for which they have been tried by the International Court, and which prohibits the Court from trying someone who has already been tried by a State with respect to the same conduct (the latter principle is subject to some exceptions). See generally, C van den Wyngaert and G Stessens, ‘The International Non [sic] Bis in Idem Principle: Resolving Some of the Unanswered Questions’ (1999) 48 ICLQ 779. 202 At para 6.4. See also PQL v Canada (CAT 57/96). 203 204 At para 57. At para 5.4. 201

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Conclusion [14.216] The HRC has issued more jurisprudence on article 14 than on any other ICCPR right. Hundreds of cases on article 14 have added significant flesh to the bare bones of the article 14 guarantees.

15 Prohibition of Retroactive Criminal Laws—Article 15 • • • • • •

Scope of Article 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of Ban on Retrospective Criminal Law . . . . . . . . . . . . . . . . . . . Retroactive Harsher Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Non-retroactive Application of More Lenient Penalties . . . . . . . . . . . . Article 15(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[15.01] [15.04] [15.07] [15.13] [15.16] [15.18]

ARTICLE 15 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.

[15.01]

Scope of Article 15

The prohibition of retroactive criminal laws in article 15 supports the long recognized criminal law principle of nullum crimen sine lege (no crime except in accordance with the law), and nulla poena sine lege (no punishment except in accordance with the law).1 The retroactive application of criminal law (ex post facto criminal laws) breaches both principles. The imposition of a heavier penalty than that which ‘was applicable at the time when the criminal offence was committed’ would breach the second principle. In addition, States are also obliged retroactively to apply lighter penalties. [15.02] Article 15 also prohibits punishment under extremely vague laws, which do not clearly proscribe the conduct for which one has been punished.2 For example, the Human Rights Committee (HRC) has stated regarding Belgium:3 1 M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005), 359. 2 See Concluding Comments on Portugal (Macau) (1999) UN doc CCPR/C/79/Add.115, para 12, where the HRC criticized certain vaguely defined ‘abstract’ offences. 3 (2004) UN doc CCPR/CO/81/BEL.

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¶24. The Committee is concerned that the Act of 19 December 2003 on terrorist offences gives a definition of terrorism which, in referring to the degree of severity of offences and the perpetrators’ intended purpose, does not entirely satisfy the principle of offences and penalties being established in law (art. 15).

The State Party should produce a more precise definition of terrorist offences. An art 15 complaint regarding this type of alleged legal inadequacy was found to be unsubstantiated in Kivenmaa v Finland (412/90), Kruyt-Amesz v The Netherlands (66/95), and Zafar v Uzbekistan (1585/07). [15.03] Article 15 is solely concerned with retrospective criminal laws, and has no application with respect to retrospectivity in civil cases.4

Scope of ban on retrospective criminal law [15.04] In a number of early cases against Uruguay, the prohibition of retroactive criminal law was clearly breached where people were convicted and sentenced for membership of ‘subversive organizations’, that is political parties which were subsequently banned.5 A clear breach arose in Sobhraj v Nepal (1870/09), where the author was convicted in 2009 of immigration offences upon the retroactive application of an immigration statute (no immigration law existed at the time of the alleged offence in 1975). [15.05]

NICHOLAS v AUSTRALIA (1080/02)

The author was convicted of drug-trafficking. He was arrested after he was trapped in a controlled operation, where narcotics were exchanged between himself and an undercover police officer. The narcotics had been illegally imported by the Australian Federal Police for the purposes of entrapping drug dealers. Seven months after his arrest, the High Court of Australia ruled in relation to another person in Ridgway v The Queen6 that evidence gleaned from such illegal operations was inadmissible. As a result, proceedings against the author were stayed. In 1996, Australia adopted new legislation which reversed Ridgway. The stay against the author was lifted. He was subsequently convicted in 1998 on the basis of evidence, which was inadmissible after Ridgway but admissible after the 1996 legislation. The author claimed that the lifting of the stay, as well as the retrospective admissibility of such crucial evidence, breached article 15. The HRC disagreed: ¶7.3. As to the claim under article 15, paragraph 1, the Committee observes that the law applicable at the time of that the acts in question took place, as subsequently held by the High Court in Ridgeway v The Queen, was that the evidence of one element of the offences with which the author was charged, that is to say, the requirement that the prohibited AJ v G v Netherlands (1142/02), para 5.7 and IS v Belarus (1994/10), para 4.4. See eg Weinberger Weisz v Uruguay (28/78). See also Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 361. 6 (1995) 184 CLR 19. 4 5

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materials possessed had been ‘imported into Australia in contravention of the Customs Act’, was inadmissible as a result of illegal police conduct. As a result, an order staying the author’s prosecution was entered, which was a permanent obstacle to the criminal proceedings against the author on the (then) applicable law. Subsequent legislation, however, directed that the evidence of illegal police conduct in question be regarded as admissible by the courts. The two issues that thus arise are, firstly, whether the lifting of the stay on prosecution and the conviction of the author resulting from the admission of the formerly inadmissible evidence is a retroactive criminalization of conduct not criminal, at the time it was committed, in violation of article 15, paragraph 1, of the Covenant. Secondly, even if there was no proscribed retroactivity, the question arises whether the author was convicted for an offence, the elements of which, in truth, were not all present in the author’s case, and that the conviction was thus in violation of the principle of nullum crimen sine lege, protected by article 15, paragraph 1. ¶7.4. As to the first question, the Committee observes that article 15, paragraph 1, is plain in its terms in that the offence for which a person is convicted to be an offence at the time of commission of the acts in question. In the present case, the author was convicted of offences under section 233B of the Customs Act, which provisions remained materially unchanged throughout the relevant period from the offending conduct through to the trial and conviction. That being so, while the procedure to which the author was subjected may raise issues under other provisions of the Covenant which the author has not invoked, the Committee considers that it therefore cannot conclude that the prohibition against retroactive criminal law in article 15, paragraph 1, of the Covenant was violated in the instant case. ¶7.5. Turning to the second issue, the Committee observes that article 15, paragraph 1, requires any ‘act or omission’ for which an individual is convicted to constitute a ‘criminal offence’. Whether a particular act or omission gives rise to a conviction for a criminal offence is not an issue which can be determined in the abstract; rather, this question can only be answered after a trial pursuant to which evidence is adduced to demonstrate that the elements of the offence have been proven to the necessary standard. If a necessary element of the offence, as described in national (or international) law, cannot be properly proven to have existed, then it follows that a conviction of a person for the act or omission in question would violate the principle of nullum crimen sine lege, and the principle of legal certainty, provided by article 15, paragraph 1. ¶7.6. In the present case, under the State party’s law as authoritatively interpreted in Ridgeway v The Queen and then applied to the author, the Committee notes that it was not possible for the author to be convicted of the act in question, as the relevant evidence of the unlawful import of narcotics by the police was inadmissible in court. The effect of the definitive interpretation of domestic law, at the time the author’s prosecution was stayed, was that the element of the crime under section 233B of the Customs Act that the narcotics had been imported illegally, could not be established due to the fact that although the import had been based on a ministerial agreement between the authorities of the State party exempting import of narcotics by the police from customs scrutiny, its illegality had not technically been removed and the evidence in question was hence inadmissible. ¶7.7. While the Committee considers that changes in rules of procedure and evidence after an alleged criminal act has been committed, may under certain circumstances be relevant for determining the applicability of article 15, especially if such changes affect the nature of an offence, it notes that no such circumstances were presented in the author’s case. As

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to his case, the Committee observes that the amending legislation did not remove the past illegality of the police’s conduct in importing the narcotics. Rather, the law directed that the courts ignore, for the evidentiary purposes of determining admissibility of evidence, the illegality of the police conduct. Thus, the conduct of the police was illegal, at the time of importation, and remained so ever since, a fact unchanged by the absence of any prosecution against the officers engaging in the unlawful conduct. In the Committee’s view, nevertheless, all of the elements of the crime in question existed at the time the offence took place and each of these elements were proven by admissible evidence by the rules applicable at the time of the author’s conviction. It follows that the author was convicted according to clearly applicable law, and that there is thus no violation of the principle of nullum crimen sine lege protected by article 15, paragraph 1.

The HRC employed a narrow approach in interpreting article 15(1) in finding that it only prohibits retrospective changes to the substantive criminal law and not retrospective procedural alterations that operated to a defendant’s detriment. [15.06]

WESTERMAN v NETHERLANDS (682/96)

The author in this case was convicted of refusing to obey military orders. He was charged under an unamended law but convicted under an amended law which was not in force at the time he committed the alleged offences. The HRC rejected the argument that his rights under article 15 had been breached: ¶9.2. The Committee notes that at the time when the author refused to obey an order and persisted in his refusal to carry out military orders, these acts constituted an offence under the Military Criminal Code, for which he was charged. Subsequently, and before the author was convicted, the Code was amended and the amended Code was applied to the author. Under the new Code, the author’s refusal to obey military orders still constituted a criminal offence. . . . The Committee notes that the acts which constituted the offence under the new Code were that the author refused to perform any military duty. Those acts were an offence at the time they were committed, under the old Code, and were then punishable by 21 months’ imprisonment (for a single act) or by 42 months’ imprisonment (for repeated acts). The sentence of 9 months imposed on the author was not heavier than that applicable at the time of the offence. Consequently, the Committee finds that the facts of the case do not reveal a violation of article 15 of the Covenant.

Retroactive Harsher Penalties [15.07]

ARS v CANADA (91/81)

In this case the author claimed that the retroactive introduction of parole with mandatory supervision under the Canadian Parole Act constituted a heavier penalty in breach of article 15(1). The HRC disagreed: ¶5.3. The Committee notes also that mandatory supervision cannot be considered as equivalent to a penalty, but is rather a measure of social assistance intended to provide for the rehabilitation of the convicted person, in his own interest. The fact that, even in the event of remission of the sentence being earned, the person concerned remains subject to supervision after his release and does not regain his unconditional freedom, cannot therefore be

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characterised as the imposition or re-imposition of a penalty incompatible with the guarantees laid down in article 15 (1) of the Covenant.

[15.08]

TOFANYUK v UKRAINE (1346/05)

In 1998, the author was sentenced to death. The death penalty was found to be unconstitutional by the State’s Constitutional Court in December 1999. At the time of that decision, the most severe sentence available under Ukrainian law after capital punishment was 15 years. Two months after the court’s decision, the Parliament passed a law which commuted all death sentences to life sentences. That law came into force in April 2000. The author argued that his sentence was effectively reduced to 15 years on the date of the court’s decision, and was retrospectively increased to life imprisonment in breach of article 15. The HRC disagreed: ¶11.3. According to article 15, paragraph 1, last sentence, of the Covenant, if, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. In the current case, the Committee notes that the penalty of life imprisonment established by the law ‘on amendments to the Criminal Code, the Criminal Procedure Code and the Correctional Labor Code of Ukraine’ fully respects the purpose of the Constitutional Court’s decision, which was to abolish the death penalty, a penalty which is more severe than life imprisonment. The Court’s decision in itself does not imply commutation of the sentence imposed on the author nor does it establish a new penalty which would replace the death sentence. Furthermore, there were no subsequent provisions made by law for the imposition of any lighter penalty from which the author could benefit, other than the above-mentioned amendment on life imprisonment. In such circumstances, the Committee cannot conclude that the State party, by substituting life imprisonment for capital punishment for the crimes committed by the author, has violated the author’s rights under article 15, paragraph 1, of the Covenant.

Clearly, in this case the HRC was able to determine that the death penalty is a harsher penalty than life imprisonment. However, it may not always be so easy to determine whether a penalty is harsher, or more lenient, than another, if they are of different types. For example, is a heavy fine less severe than a short period of imprisonment? The answer may depend on the individual circumstances of the convicted person.7 [15.09] In Filipovich v Lithuania (875/99), the author claimed that he was convicted under a new law which prescribed harsher sentences than the law which was in force at the time he committed the relevant offence. The HRC agreed that it was unclear which law he had been convicted under, but found no breach of article 15(1), as the sentence he received was within the range prescribed by both laws.8 [15.10] Fardon v Australia (1629/07) and Tillman v Australia (1635/07) both concerned the application of laws which provided for the further ‘preventive’ detention of sex offenders after the completion of court-imposed sentences. 7 8

Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 364. At para 6.2.

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The preventive detention regimes were, in both cases, introduced by statutes which post-dated the authors’ offences. In both cases, the extra periods of detention were found to breach article 9(1) [11.35]. A factor in those findings was that the regimes breached article 15(1) in imposing retrospective harsher penalties (ie the actual subjection to the preventive detention regime).9 Strangely, while the article 15 finding bolstered the findings regarding article 9(1), no separate finding regarding article 15 was made in either case. [15.11] In De Leon Castro v Spain (1388/05), the HRC delivered a very weak finding of no violation [11.39]. The author claimed that a harsher parole regime was applied to him retrospectively. The HRC noted that his conditions of detention were progressively improved after appeals. It could not ultimately conclude that the denial of parole throughout his sentence breached article 15(1). Mrs Wedgwood dissented and correctly found a breach of article 15(1). This case reflects the HRC’s apparent reluctance to find breaches of article 15 entailed in retrospective changes to parole regimes (see [15.07]), perhaps because a sentenced person has no right to parole. [15.12] A clear breach of the rule against retrospective harsh penalties arose in Gomez Casafranca v Peru (981/01) when harsher anti-terrorism laws were retrospectively applied to the author.

Non-retroactive Application of More Lenient Penalties [15.13]

COCHET v FRANCE (1760/08)

From November 1987 until March 1988, the author had illegally imported peas from the Netherlands and Hungary in breach of French customs law. Criminal proceedings were brought against him in 1994, and he was eventually fined €600,000. However, Act 92–677 was enacted in France on 17 July 1992. It dictated the removal from the scope of the Customs Code of any merchandise imported from within the European Community (including, therefore, the Netherlands and Hungary). The upshot of that Act was that the author’s alleged conduct no longer fell within the customs regime so his alleged conduct no longer constituted a criminal offence under French law. The author claimed that France had violated article 15 ICCPR, as that provision demanded that lighter penalties be retroactively applied. As his alleged crimes no longer constituted criminal offences at the time of the proceedings (even if they constituted offences at the time he perpetrated the relevant acts), he claimed he had not retroactively benefited from a lighter penalty. The HRC agreed: ¶7.2. With regard to the claim made under article 15, paragraph 1, of the Covenant, the Committee notes that, according to the summons submitted by the author, the acts committed between November 1987 and March 1988 constituted an offence of importing prohibited goods without declaring them and a category 1 customs violation, offences specified 9

Fardon, para 7.4(2) and Tillman, para 7.4(2).

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and penalized under articles 410, 426–4, 435, 414, 399, 382 and 404 to 407 of the Customs Code, article 750 of the Code of Criminal Procedure, and EEC Council regulations No. 1431/82 and No. 2036/82 and Commission regulation No. 3540/85. The Committee notes, as the author stated, that these provisions ceased to be applicable after 1 January 1993, the date upon which the regime established by the Act of 17 July 1992 entered into force. It also notes that the criminal proceedings brought against the author on the basis of those violations were instituted 18 months after the entry into force of the said regime, on 1 August 1994. The Committee observes that these facts are not disputed by the State party. The issue here is therefore clearly the disappearance of an offence and the corresponding penalties, since the acts that were the subject of the charges brought by the State party ceased to constitute criminal offences on 1 January 1993. The Act of 17 July 1992 therefore clearly refers to a regime of offences and the associated penalties and not just monitoring procedures as claimed by the State party. ¶7.3 As regards the scope of the application of article 15, paragraph 1, of the Covenant, the Committee finds that the article should not be interpreted narrowly: since the article refers to the principle of the retroactive effect of a lighter penalty, it should be understood to refer a fortiori to a law abolishing a penalty for an act that no longer constitutes an offence. Moreover, reference is made to article 112–4 of the French Criminal Code, which provides that execution of a penalty ceases where it was imposed for an act that ceases to be a criminal offence under legislation that post-dates the judgement. ¶7.4 The Committee finds that the principle of the retroactive effect of the lighter penalty and, in this case, the non-existence of a penalty, is applicable in this case and that, consequently, article 110 of the Act of 17 July 1992 violates the principle of the retroactive effect of the less severe criminal statute under article 15 of the Covenant.

Cochet was charged with offences which existed at the time he allegedly perpetrated the relevant act. However, by the time the relevant criminal proceedings commenced, the precise offences with which he was charged were no longer criminal offences under French law. The failure by France to retroactively apply the lighter penalty (that is, no penalty at all as there was no longer any offence) was a breach of Article 15(1) of the ICCPR. Therefore, the guarantee of the retroactive application of lighter penalties in Article 15(1) includes a right to retroactive application of the decriminalisation of relevant conduct. [15.14]

GAVRILIN v BELARUS (1342/05)

The author was convicted and sentenced under the Criminal Code and sentenced to seven years’ imprisonment. At the time, the Code provided for a penalty range for the relevant offence of five to ten years. In 2003, amendments introduced a lower sentencing range for the relevant offence of three to seven years. The author argued that his sentence should be reduced, as his sentence, which was in the mid-range of the old law, was now in the maximum range of sentencing. He claimed he was not benefiting from the application of a more lenient penalty. The HRC disagreed: ¶8.2. . . . [T]he issue is whether, in a case in which the sentence handed down under a previous law falls within the sentencing margin introduced under the later law, the provision of article 15, paragraph 1, of the Covenant requires the State party proportionally to reduce

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the original sentence, so that the accused may benefit from the imposition of a lighter penalty under the later law. ¶8.3. In this regard, the Committee refers to its jurisprudence in Filipovich v. Lithuania [15.09], where it concluded there was no violation of article 15, paragraph 1, because the author’s sentence was well within the margin provided by the earlier law. . . . The Committee notes that in the present case, the author’s sentence under the first conviction was well within the margins provided by both the old Code and the new Code, as amended by the Law of 22 July 2003, and that in determining the sentence, the court took into account the public danger of the author’s actions and his personal circumstances. . . . In applying the reasoning in Filipovich mutatis mutandis to the present case, the Committee cannot, on the basis of the material made available to it, conclude that the author’s sentence was handed down in a way incompatible with . . . article 15, paragraph 1, of the Covenant.

[15.15]

VAN DER PLAAT v NEW ZEALAND (1492/06)

During the currency of the author’s sentence, a new parole regime was introduced. The author claimed that the application of the new regime to him would have resulted in his release on parole four years and eight months earlier than his actual release on parole. Therefore, he claimed the State’s failure to apply the new regime to him breached article 15(1). The HRC disagreed and found the claim to be inadmissible: ¶6.2. The author’s claim is that the inapplicability to him of a new sentencing regime introduced after his conviction and sentence causes direct and consequential breaches of a variety of provisions of the Covenant. The Committee notes that under the former sentencing rules applicable to him, he is entitled to early release after serving two-thirds of his sentence, subject to postponement of release for prison disciplinary offences or an order under the Criminal Justice Act that an offender serve a full term. Under the new sentencing rules applicable to persons sentenced later than the author, prisoners in principle must serve a full sentence without any entitlement to early release, but are eligible for discretionary parole after serving one-third of their sentences if no minimum term is imposed. ¶6.3 The Committee notes its jurisprudence on changes in sentencing and parole regimes that ‘it is not the Committee’s function to make a hypothetical assessment of what would have happened if the new Act had been applicable to him’, and that it cannot be assumed what a sentencing judge applying new sentencing legislation would in fact have concluded by way of sentence. The Committee’s jurisprudence has also noted the relevance of a prediction as to the author’s own future behaviour to the duration of imprisonment. ¶6.4 Applying those principles in the present case, the Committee is of the view that even assuming for the purposes of argument that changes in parole entitlements amount to a penalty within the meaning of article 15, paragraph 1, of the Covenant, the author has not shown that sentencing under the new regime would have led to him serving a shorter time in prison. The contention that the author would have been released earlier under the new regime speculates on number of hypothetical actions of the sentencing judge, acting under a new sentencing regime, and of the author himself. The Committee notes in this respect that the Sentencing Act 2002 significantly expanded the power of the courts to impose minimum periods of imprisonment (non-parole periods) for long-term sentences, and parole conditions varied significantly depending whether a minimum period of imprisonment was

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stipulated or not. The Committee also notes in this respect that release on parole in the State party’s criminal justice scheme is neither an entitlement nor automatic, and is in part dependent on the author’s own behaviour.

In Van der Plaat, the HRC followed its earlier jurisprudence in Van Duzen v Canada (50/79) and MacIsaac v Canada (55/79). The HRC has never found that changes to parole regimes breach article 15 (see also [15.11]), largely because the application of parole regimes is discretionary and somewhat dependent on the behaviour of the person seeking parole. Even if a new regime seems more lenient, there is no certainty that a person will benefit from that leniency.

Article 15(2) [15.16] Article 15(2) contains an apparent exception to article 15(1), in that it expressly permits the trial and punishment of people on charges of violations of general principles of international law, regardless of the criminal status of such acts in a State’s domestic law. Article 15(2) is clearly targeting those who have committed grave breaches of international humanitarian law, such as war crimes or crimes against humanity.10 However, article 15(1) also seems to permit such trial and punishment, as it only prohibits the trial and punishment of persons for acts or omissions which were not criminalized in either national or international law. Indeed, the reference to ‘international law’ in article 15(1) probably goes further than the exception in article 15(2) as it could refer to general and customary international law, as well as international treaty law.11 [15.17]

BAUMGARTEN v GERMANY (960/00)

The author had, from 1979 to 1990, been the Deputy Minister of Defence and Head of Border Troops of the former German Democratic Republic (GDR (East Germany)). In September 1996, he was convicted by the courts of (the united) Germany of ‘homicide and attempted homicide in several cases occurring between 1980 and 1989’. The author was found responsible for the deaths and attempted killings of people who had attempted to escape from the GDR to the Federal Republic of Germany (FRG (West Germany)) including West Berlin, and were shot by GDR border guards or had set off mines. The author issued numerous orders between 1979 and 1988 authorizing the use of such force by border guards, if necessary to prevent illegal border crossings. The objective was to prevent the crossings, rather than to kill the persons crossing the border. Inevitably, many people died from the use of such force. The author argued that GDR law, in force between 1979 and 1990, exempted him from prosecution for the deaths and attempted killings. The author described 10 See HAN Muhammed, ‘Due Process of Law for Persons Accused of Crime’, in L Henkin (ed), The International Bill of Rights (Columbia University Press, 1981), 164. 11 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 360. However, see also 368, where Nowak notes that most international treaties would disallow retroactive effect.

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the relevant GDR laws in force at the time of the killings and attempted killings, which are summarized as follows. GDR criminal law prohibited murder and manslaughter. Furthermore, under section 95 of the Criminal Code (GDR), people who violated ‘human or fundamental rights [and/or] international obligations’ could ‘not invoke statute law, an order or instruction as justification; [he/ she would] be held criminally responsible’. On the other hand, under article 258 of the Criminal Code (GDR), members of the armed forces were not criminally responsible for acts ‘committed in execution of an order issued by a superior, save where execution of the order manifestly violates recognized rules of public international law or criminal statute’. The use of firearms was of course regulated by GDR law. Section 17, paragraph 2, of the People’s Police Act (GDR) stipulated that firearms usage was justified to prevent the commission of ‘a serious crime’. Illegal crossing of the border was classified, in some instances (eg, under section 27 of the Border Act) as a serious crime under GDR law. The installation of mines was not regulated by statute. Rather, the border mines were authorized by ‘a series of service regulations and orders which provided for measures to secure border installations through mines’, and indeed the use of firearms.12 The author added the following: ¶3.10. No member of the border troops was ever prosecuted in the GDR for ordering the use of firearms or for executing such orders.

The author’s article 15 complaint was as follows: ¶5.1. The author claims that he is a victim of violations of articles 15 and 26 of the Covenant, because he was convicted for acts committed in the line of duty which did not constitute a criminal offence under GDR law or under international law. ¶5.2. With regard to the alleged violation of article 15 of the Covenant, the author claims that, by judging his acts, the State party’s courts deprived the relevant GDR legislation of its original meaning, replacing it by their own concept of justice. He argues that the reasoning of the Courts amounts to the absurd contention that the East German Parliament placed members of the armed forces at double jeopardy, by enacting criminal laws requiring them to comply with their professional duties, and at the same time criminalizing such compliance, eventually only in order to prevent the prosecution of the fulfillment of such duties by means of legal justifications. He submits that compliance with professional duties never constituted a criminal offence under GDR law since it was not contrary to the interests of society, as required by section 1, paragraph 1, of the Criminal Code (GDR). On the contrary, non-compliance with service regulations or orders governing the protection of the state borders itself entailed criminal responsibility, the only exception pertaining to cases where the order manifestly violated the recognized rules of public international law or a criminal statute (section 258 of the GDR’s Criminal Code). ¶5.3. The author contends that international law did not prohibit the installation of mines along the border between two sovereign states which, moreover, marked the demarcation line between the two largest military alliances in history and had been ordered by the Commander-in-chief of the Warsaw Pact. He notes that the mines were only used in 12

At para 3.6.

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military exclusion zones, were clearly indicated by warning signs, and that involuntary access was prevented by high fences. He further claims that, when considering the second periodic report of the GDR in 1983, the Committee found the East German system of border control to be in conformity with the Covenant. ¶5.4. Furthermore, the author argues that criminal intent required the apparent and wilful disregard of certain basic social norms, which obviously was not the case in instances of compliance with one’s professional duties. ¶5.5. According to the author, at the time of the entry into force of the Unification Treaty on 3 October 1990, no basis for prosecuting his acts existed. The legal system of the GDR did not provide for incurring criminal responsibility on the sole basis of natural law concepts, which had no foundation in the GDR’s positive law. When the FRG agreed to include the prohibition of the retroactive application of its criminal law in the Unification Treaty, it did so in the light of the historically unique chance to unify both German States, accepting that its own concepts of justice could not be applied to acts committed in the former GDR. The author concludes that his conviction, therefore, lacked a legal basis in the Unification Treaty. ¶5.6. With respect to the reference to ‘international law’ in article 15, paragraph 1, and the limitation clause in article 15, paragraph 2, of the Covenant, the author submits that at the material time, his acts were not criminal under international law, nor under the general principles of law recognized by the community of nations.

The HRC found no violation of article 15: ¶9.3. . . . [T]he Committee notes that the specific nature of any violation of article 15, paragraph 1, of the Covenant requires it to review whether the interpretation and application of the relevant criminal law by the domestic courts in a specific case appear to disclose a violation of the prohibition of retroactive punishment or punishment otherwise not based on law. In doing so, the Committee will limit itself to the question of whether the author’s acts, at the material time of commission, constituted sufficiently defined criminal offences under the criminal law of the GDR or under international law. ¶9.4. The killings took place in the context of a system which effectively denied to the population of the GDR the right freely to leave one’s own country. The authorities and individuals enforcing this system were prepared to use lethal force to prevent individuals from non-violently exercising their right to leave their own country. The Committee recalls that even when used as a last resort lethal force may only be used, under article 6 of the Covenant, to meet a proportionate threat [8.07]. The Committee further recalls that States parties are required to prevent arbitrary killing by their own security forces. It finally notes that the disproportionate use of lethal force was criminal according to the general principles of law recognized by the community of nations already at the time when the author committed his acts. ¶9.5. The State party correctly argues that the killings violated the GDR’s obligations under international human rights law, in particular article 6 of the Covenant. It further contends that those same obligations required the prosecution of those suspected of responsibility for the killings. The State party’s courts have concluded that these killings violated the homicide provisions of the GDR Criminal Code. Those provisions required to be interpreted and applied in the context of the relevant provisions of the law, such as section 95 of the Criminal Code excluding statutory defences in the case of human rights violations (see

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paragraph 3.3) and the Border Act regulating the use of force at the border (see paragraph 3.5). The State party’s courts interpreted the provisions of the Border Act on the use of force as not excluding from the scope of the crime of homicide the disproportionate use of lethal or potentially lethal force in violation of those human rights obligations. Accordingly, the provisions of the Border Act did not save the killings from being considered by the courts as violating the homicide provisions of the Criminal Code. The Committee cannot find this interpretation of the law and the conviction of the author based on it to be incompatible with article 15 of the Covenant.

The HRC in Baumgarten ultimately upheld the conclusion drawn in German courts that the killings and attempted killings at the GDR border were criminalized under GDR law during the relevant period of time. The fact that GDR law had not been enforced so as to punish people for the border killings was deemed irrelevant. Thus, no article 15(1) issue arose. Had the HRC concluded that GDR law did in fact exempt the author of criminal responsibility in the circumstances, it would then have presumably found the author’s conviction to be compatible with the Covenant, by virtue of article 15(2).

Conclusion [15.18] The HRC has dealt with article 15 in the context of the retrospective application of new parole regimes, preventive detention, retroactive changes to evidential rules, and cases on the non-retroactive application of more lenient penalties (as well as the non-retroactive application of decriminalization). The most interesting case is Baumgarten v Germany (960/00), which addresses the issue of the prosecution of East German border guards, for the killing of attempted defectors, by the united Germany.

16 Right to Privacy—Article 17 • The Definition of Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [16.01] • Limitations to Article 17 Protection—What is Arbitrary or Unlawful Interference? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [16.06] • Obligation on the State to take Positive Measures to Protect Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [16.15] • Specific Aspects of Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [16.18] • Family and Home. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [16.18] • Searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [16.27] • Correspondence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [16.31] • Professional Duties of Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . [16.36] • Medical Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [16.39] • Honour and Reputation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [16.41] • Sexual Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [16.49] • Gender and Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [16.53] • Data Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [16.58] • DNA Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [16.61] • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [16.62]

ARTICLE 17 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.

The Definition of Privacy [16.01] Privacy is a notoriously difficult term to define.1 It has been categorized as a choice, a function, a desire, a right, a condition, and/or a need.2 Privacy has also been defined as the desire of individuals for solitude, intimacy, anonymity, and reserve.3 It has been defined widely as ‘the right to be left alone’4 and narrowly as a right to control information about one’s self.5 A compromise definition could be that a right to privacy comprises ‘freedom from unwarranted and See eg K Gormley, ‘One Hundred Years of Privacy’ [1992] Wisconsin Law Review 1335 at 1397. A Bartzis, ‘Escaping the Panopticon’, unpublished LLM thesis, Monash University, 1997, 26. 3 J Michael, ‘Privacy’, in D Harris and S Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (Clarendon Press, 1995), 333. 4 SD Warren and LD Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193, 195. 5 AF Westin, Privacy and Freedom (Athenaeum, 1967), 7; see also C Fried, ‘Privacy’, (1968) 77 Yale Law Journal 475, 483. 1 2

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unreasonable intrusions into activities that society recognizes as belonging to the realm of individual autonomy’.6 The ‘sphere of individual autonomy’ has been described as ‘the field of action [that] does not touch upon the liberty of others’, where one may withdraw from others, to ‘shape one’s life according to one’s own (egocentric) wishes and expectations’.7 [16.02] As far as the ICCPR is concerned, the meaning of privacy for the purposes of article 17 has not yet been thoroughly defined in either the General Comment or the case law. [16.03]

COERIEL and AURIK v THE NETHERLANDS (453/91)

In this case, the authors wished to change their surname for religious reasons; they alleged a violation of article 17 entailed in the State Party’s failure to permit them to do so. The majority of the Committee accepted that there had been a violation of article 17 of the Covenant. They made the following comments about whether a person’s surname and their identity came within the sphere of ‘privacy’: ¶10.2. The first issue to be determined by the Committee is whether article 17 of the Covenant protects the right to choose and change one’s own name. The Committee observes that article 17 provides, inter alia, that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence. The Committee considers that the notion of privacy refers to the sphere of a person’s life in which he or she can freely express his or her identity, be it by entering into relationships with others or alone. The Committee is of the view that a person’s surname constitutes an important component of one’s identity and that the protection against arbitrary or unlawful interference with one’s privacy includes the protection against arbitrary or unlawful interference with the right to choose and change one’s own name. For instance, if a State were to compel all foreigners to change their surnames, this would constitute interference in contravention of article 17. The question arises whether the refusal of the authorities to recognise a change of surname is also beyond the threshold of permissible interference within the meaning of article 17.

The Committee answered the latter question in the affirmative. Its merits decision is outlined below [16.13]. [16.04]

RAIHMAN v LATVIA (1621/07)

This case concerned a Latvian law requiring that the Latvian spelling of the author’s name, which was of Russian Jewish origin, be used for official purposes. In response to the allegation of a breach of Article 17, Latvia argued: ¶5.1. . . . The author’s name was not changed, but merely reproduced by applying relevant statutory provisions applicable to names of foreign origin. Article 17 of the Covenant does not protect the right to a name, as the text of the provision does not make a direct reference to the 6 SE Wilborn, ‘Revisiting the Public/Private Distinction: Employee Monitoring in the Workplace’ (1998) 32 Georgia Law Review 825, 833. 7 M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005), 378. See also F Volio, ‘Legal Personality, Privacy, and the Family’, in L Henkin (ed), The International Bill of Rights (Columbia University Press, 1981), listing aspects of privacy and examples of privacy violations at 193–5.

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name, and neither General Comment N°16, nor the jurisprudence, clearly defined the scope of the right to privacy. It cannot therefore be said that this right encompasses the graphical representation of a name, which was solely modified to adapt it to the particularities of the Latvian language. Therefore, this measure did not infringe the author’s rights under article 17. . . .

The HRC disagreed, and found that the case did raise issues concerning the right to privacy: ¶8.2. Regarding the alleged violation of article 17, the Committee has taken note of the author’s argument that the legal requirement imposing a Latvian spelling for his name in official documents, after 40 uninterrupted years of use of his original name, resulted in a number of daily constraints, and generated a feeling of deprivation and arbitrariness, since he claims that his name and surname ‘look and sound odd’ in their Latvian form. The Committee recalls that the notion of privacy refers to the sphere of a person’s life in which he or she can freely express his or her identity, be it by entering into relationships with others, or alone. The Committee further expressed the view that as person’s surname constitutes an important component of one’s identity, and that the protection against arbitrary or unlawful interference with one’s privacy includes the protection against arbitrary or unlawful interference with the right to choose and change one’s own name. . . .

[16.05] In Hopu and Bessert v France (549/93), the authors alleged that a hotel development on the sacred burial grounds of their ancestors breached, inter alia, their rights to privacy. The HRC majority agreed, as the authors’ relationship with their ancestors constituted an important part of their identity.8 In a dissenting opinion, Messrs Kretzmer, Buergenthal, Ando, and Lord Colville made the following comments: ¶6. Contrary to the Committee, we cannot accept that the authors’ claim of an interference with their right to privacy has been substantiated. The only reasoning provided to support the Committee’s conclusion in this matter is the authors’ claim that their connection with their ancestors plays an important role in their identity. The notion of privacy revolves around protection of those aspects of a person’s life, or relationships with others, which one chooses to keep from the public eye, or from outside intrusion. It does not include access to public property, whatever the nature of that property, or the purpose of the access. Furthermore, the mere fact that visits to a certain site play an important role in one’s identity, does not transform such visits into part of one’s right to privacy. One can think of many activities, such as participation in public worship or in cultural activities, that play important roles in persons’ identities in different societies. While interference with such activities may involve violations of articles 18 or 27, it does not constitute interference with one’s privacy. LIMITATIONS TO ARTICLE 17 PROTECTION—WHAT IS ‘ARBITRARY OR UNLAWFUL INTERFERENCE’?

[16.06] Article 17 prohibits interferences with privacy which are ‘unlawful’ and ‘arbitrary’. GENERAL COMMENT 16 ¶3. The term ‘unlawful’ means that no interference can take place except in cases envisaged by the law. Interference authorised by States can only take place on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant. 8

See [20.14]–[20.15].

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[16.07] The Committee went on to specify that the law must be precise and circumscribed, so as not to give decision-makers too much discretion in authorizing interferences with privacy: ¶8. [R]elevant legislation must specify in detail the precise circumstances in which such interferences may be permitted. A decision to make use of such authorised interference must be made only by the authority designated under the law, and on a case-by-case basis.

For example, the Committee made the following comment in Concluding Observations on the Russian Federation:9 ¶19. . . . [The Committee] is concerned that the mechanisms to intrude into private telephone communication continue to exist, without clear legislation setting out the conditions of legitimate interferences with privacy and providing for safeguards against unlawful interferences.

Similarly, Jamaica was asked to ‘adopt precise legislation’ governing the administration of wire-tapping.10 [16.08]

PINKNEY v CANADA (27/78)

This case gives an example of how ‘lawful’ interferences with privacy must be sufficiently circumscribed in order to conform to the article 17 guarantee. The author, a remand prisoner, complained of censorship of his letters, and therefore a violation of his right to privacy in relation to correspondence [16.32]. The State Party explained the relevant law which governed censorship of inmates’ letters: ¶31. . . . Mr Pinkney, as a person awaiting trial, was entitled under section 1.21(d) of the Gaol Rules and Regulations, 1961, British Columbia Regulations 73/61, in force at the time of his detention to the ‘provision of writing material for communicating by letter with (his) friends or for conducting correspondence or preparing notes in connection with (his) defence’. The Government of Canada does not deny that letters sent by Mr Pinkney were subject to control and could even be censored. Section 2.40 (b) of the Gaol Rules and Regulations, 1961 is clear on that point: ‘2.40 (b) Every letter to or from a prisoner shall (except as hereinafter provided in these regulations in the case of certain communications to or from a legal adviser) be read by the Warden or by a responsible officer deputed by him for the purpose, and it is within the discretion of the Warden to stop or censor any letter, or any part of a letter, on the ground that its contents are objectionable or that the letter is of excessive length.’

The HRC found that section 2.40(b) violated article 17. However, its replacement by a new provision had remedied this situation: ¶34. No specific evidence has been submitted by Mr Pinkney to establish that his correspondence was subjected to control or censorship which was not in accordance with the practice described by the State party. However, article 17 of the Covenant provides not only that ‘No one shall be subjected to arbitrary or unlawful interference with his correspondence’ but also that ‘Everyone has the right to the protection of the law against such interference’. At the time when Mr Pinkney was detained at the Lower Mainland Regional Correction Center the only

9

(1995) UN doc CCPR/C/79/Add.54.

10

(1997) UN doc CCPR/C/79/Add.83, para 20.

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law in force governing the control and censorship of prisoners’ correspondence appears to have been section 2.40 (b) of the Gaol Rules and Regulations, 1961. A legislative provision in the very general terms of this section did not, in the opinion of the Committee, in itself provide satisfactory legal safeguards against arbitrary application, though, as the Committee has already found, there is no evidence to establish that Mr Pinkney was himself the victim of a violation of the Covenant as a result. The Committee also observes that section 42 of the Correction Centre Rules and Regulations that came into force on 6 July 1978 has now made the relevant law considerably more specific in its terms.

The new provision circumscribed the reasons for censoring mail; a prisoner’s mail could be censored if it posed a threat to the staff or the operation of the prison. The Warden’s discretion to censor, which was extremely broad under section 2.40(b), was minimized by the new section 42. [16.09] Prohibition of ‘unlawful’ interferences with privacy offers only limited human rights protection, as States Parties could potentially authorize highly oppressive invasions of privacy in municipal law so long as the laws were expressed with the requisite precision.11 Therefore, the prohibition is necessarily supplemented by the prohibition of arbitrary interferences with privacy. [16.10]

GENERAL COMMENT 16

¶4. The expression ‘arbitrary interference’ is also relevant to the protection of the right provided for in article 17. In the Committee’s view the expression ‘arbitrary interference’ can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.

Hence, the prohibition on ‘arbitrary’ interferences with privacy incorporates notions of reasonableness into article 17. In Toonen v Australia (488/92) the Committee discussed the issue of reasonableness as follows:12 ¶8.3. The Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case:

[16.11]

GENERAL COMMENT 16

In General Comment 16, the Committee gave an indication of how the reasonableness of interferences with privacy might be assessed: ¶7. [T]he competent public authorities should only be able to call for such information relating to an individual’s private life the knowledge of which is essential in the interests of society as understood under the Covenant. . . . 11 However, in para 3 of General Comment 16 [16.06], the HRC does add that the law itself should comply with the Covenant. This may simply be referring to the fact that the law must not be arbitrary. Alternatively, it may mean that ‘lawful’ means ‘lawful’ in domestic and international human rights law. See [11.91]ff and [18.32]. 12 See also [8.05]ff and [11.15]ff on the interpretation of ‘arbitrariness’ in the context of other ICCPR guarantees.

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[16.12] Unlike other ICCPR provisions, permissible limitations to the right of privacy are not enumerated. This may be contrasted with other ICCPR guarantees, such as articles 12 and 19, where limitations are permitted only for specified purposes, such as protection of public order or public morals. Mr Wennergren noted in a separate concurring opinion in Toonen v Australia (488/92) that: Article 17, paragraph 1, merely mandates that no one shall be subjected to arbitrary or unlawful interference with his privacy, family etc. Furthermore, the provision does not, as do other articles of the Covenant, specify on what grounds a State party may interfere by way of legislation. A State party is therefore in principle free to interfere by law with the privacy of individuals on any discretionary grounds, not just on grounds related to public safety, order, health, morals, or the fundamental rights and freedoms of others, as spelled out in other provisions of the Covenant. However, under article 5, paragraph 1, nothing in the Covenant may be interpreted as implying for a State a right to perform any act aimed at the limitation of any of the rights and freedoms recognised therein to a greater extent than is provided for in the Covenant.

The permissible limits to the right of privacy are probably very similar to the enumerated limits found in other ICCPR guarantees.13 All non-absolute ICCPR rights may be limited by proportionate measures designed to achieve a valid end. For example, enumerated limits to article 19 (freedom of expression) are permissible only if they are deemed to be ‘necessary in a democratic society’. The latter words have been held to incorporate notions of reasonableness and proportionality into article 19,14 which equates with the meaning given to ‘arbitrary’ in article 17. Whilst the permissible ends for an article 17 limitation are open, the permissible ends for article 19 are so broad (eg protection of ‘the rights of others’) as to be similarly open. [16.13]

COERIEL and AURIK v THE NETHERLANDS (453/91)

An example of the Committee’s interpretation of ‘arbitrary’ interference is taken from this case, concerning the State’s refusal to let the authors change their surnames to reflect their adopted Hindu religion. The State Party submitted the following arguments in defence of its actions: ¶7.1. The State party, by submission of 24 February 1994, argues that article 17 of the Covenant does not protect the right to choose and change one’s surname. It refers to the travaux préparatoires, in which no indication can be found that article 17 should be given such a broad interpretation, but on the basis of which it appears that States should be given considerable freedom to determine how the principles of article 17 should be applied. The State party also refers to the Committee’s General Comment on article 17, in which it is stated that the protection of privacy is necessarily relative. . . . ¶7.2. Subsidiarily, the State party argues that the refusal to grant the authors a formal change of surname was neither unlawful nor arbitrary. The State party . . . submits that the 13 See [1.84]. See also P Hassan, ‘International Covenant on Civil and Political Rights: Background Perspectives on Article 9(1)’ (1973) 3 Denver Journal of International Law and Policy 153, detailing the drafting history of the inclusion of the word ‘arbitrary’ in art 9(1) at 153. 14 See [18.33].

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decision was taken in accordance with the relevant Guidelines, which were published in the Government Gazette of 9 May 1990 and based on the provisions of the Civil Code. The decision not to grant the authors a change of surname was thus pursuant to domestic legislation and regulations. ¶7.3. As to a possible arbitrariness of the decision, the State party observes that the regulations referred to in the previous paragraph were issued precisely to prevent arbitrariness and to maintain the necessary stability in this field. The State party contends that it would create unnecessary uncertainty and confusion, in both a social and administrative sense, if a formal change of name could be effected too easily. In this connection, the State party invokes an obligation to protect the interests of others. The State party submits that in the present case, the authors failed to meet the criteria that would allow a change in their surname and that they wished to adopt names which have a special significance in Indian society. ‘Granting a request of this kind would therefore be at odds with the policy of the Netherlands Government of refraining from any action that could be construed as interference with the internal affairs of other cultures’. The State party concludes that, taking into account all interests involved, it cannot be said that the decision not to grant the change of name was arbitrary.

The HRC majority found in favour of the author: ¶10.3. The Committee now proceeds to examine whether in the circumstances of the present case the State party’s dismissal of the authors’ request to have their surnames changed amounted to arbitrary or unlawful interference with their privacy. It notes that the State party’s decision was based on the law and regulations in force in the Netherlands, and that the interference can therefore not be regarded as unlawful. It remains to be considered whether it is arbitrary. ¶10.4. The Committee notes that the circumstances in which a change of surname will be recognised are defined narrowly in the Guidelines and that the exercise of discretion in other cases is restricted to exceptional cases. The Committee recalls its General Comment on article 17, in which it observed that the notion of arbitrariness ‘is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances’. Thus, the request to have one’s change of name recognised can only be refused on grounds that are reasonable in the specific circumstances of the case. ¶10.5. In the present case, the authors’ request for recognition of the change of their first names to Hindu names in order to pursue their religious studies had been granted in 1986. The State party based its refusal of the request also to change their surnames on the grounds that the authors had not shown that the changes sought were essential to pursue their studies, that the names had religious connotations and that they were not ‘Dutch sounding’. The Committee finds the grounds for so limiting the authors’ rights under article 17 not to be reasonable. In the circumstances of the instant case the refusal of the authors’ request was therefore arbitrary within the meaning of article 17, paragraph 1, of the Covenant.

[16.14]

RAIHMAN v LATVIA (1621/07)

The facts of this case are outlined above [16.04]. The HRC found that the compulsory use of the Latvian spelling for the author’s Russian Jewish surname for official purposes breached article 17: ¶8.2. . . . In the present case, the author’s name was modified so as to comply with the Latvian grammatical rules, in application of section 19 of the Language Law and other

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relevant regulations. The interference at stake cannot, therefore, be regarded as unlawful. It remains to be considered whether it is arbitrary. ¶8.3. . . . The Committee notes that section 19 of the State party’s Language Law provides for the broad and general principle that all names must comply with the Latvian language, and be written according to the Latvian rules. No exception is contemplated for names of different ethnic origin. The Committee recalls that the introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. It took note of the State party’s stated aim for such interference, said to be a measure necessary to protect the Latvian language and its proper functioning as an integral system, including through guaranteeing the integrity of its grammatical system. The Committee further took note of the difficulties to which the Latvian language was exposed during the Soviet rule, and considers that the objective stated is a legitimate one. The Committee however finds that the interference entailed for the author presents major inconveniences, which are not reasonable, given the fact that they are not proportionate to the objective sought. While the question of legislative policy, and the modalities to protect and promote official languages is best left to the appreciation of State parties, the Committee considers that the forceful addition of a declinable ending to a surname, which has been used in its original form for decades, and which modifies its phonic pronunciation, is an intrusive measure, which is not proportionate to the aim of protecting the official State language. Relying on previous jurisprudence, where it held that the protection offered by article 17 encompassed the right to choose and change one’s own name, the Committee considers that this protection a fortiori protects persons from being passively imposed a change of name by the State party. The Committee therefore considers that the State party’s unilateral modification of the author’s name on official documents is not reasonable, and thus amounted to arbitrary interference with his privacy, in violation of article 17 of the Covenant.

Messrs Rivas Posada and Thelin dissented, and found that article 17 was not breached in the circumstances, as they found that the interference was proportional to the aim of protecting the Latvian language [24.51].

Obligation on the State to take Positive Measures to Protect Privacy [16.15] Article 17(1) obviously prohibits States from themselves invading a person’s privacy. There are also positive obligations within article 17. GENERAL COMMENT 16 ¶1. Article 17 provides for the right of every person to be protected against arbitrary or unlawful interference with his privacy, family, home or correspondence as well as against unlawful attacks on his honour and reputation. In the view of the Committee this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. The obligations imposed by this article require the State to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of this right.

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Furthermore, article 17(2) expressly guarantees a right to protection of the law against interference with one’s privacy. [16.16] States Parties are under an obligation to provide a remedy, either civil or criminal, for arbitrary invasions of privacy in the private sector. This is important, as many gross invasions of privacy occur at the behest of the private sector, particularly the media. No cases have explicitly dealt with this positive obligation.15 [16.17]

GENERAL COMMENT 16

¶6. The Committee considers that the reports should include information on the authorities and organs set up within the legal system of the State which are competent to authorise interference allowed by the law. It is also indispensable to have information on the authorities which are entitled to exercise control over such interference with strict regard for the law, and to know in what manner and through which organs persons concerned may complain of a violation of the right provided for in article 17 of the Covenant. States should in their reports make clear the extent to which actual practice conforms to the law. State party reports should also contain information on complaints lodged in respect of arbitrary or unlawful interference, and the number of any findings in that regard, as well as the remedies provided in such cases.

Paragraph 6 of the General Comment confirms that States must have adequate complaints systems, and provide adequate remedies, for privacy violations.

Specific Aspects of Privacy FAMILY AND HOME

[16.18]

GENERAL COMMENT 16

¶5. Regarding the term ‘family’, the objectives of the Covenant require that for purposes of article 17 this term be given a broad interpretation to include all those comprising the family as understood in the society of the State party concerned. The term ‘home’ in English, ‘manzel’ in Arabic, ‘zhùzhái’ in Chinese, ‘domicile’ in French, ‘zhilische’ in Russian and ‘domicilio’ in Spanish, as used in article 17 of the Covenant, is to be understood to indicate the place where a person resides or carries out his usual occupation. In this connection, the Committee invites States to indicate in their reports the meaning given in their society to the terms ‘family’ and ‘home’.

In the General Comment, the HRC adopts a liberal interpretation of ‘home’, so as to include one’s workplace.16 [16.19]

VOJNOVIC´ v CROATIA (1510/06)

Between 1986 and 1992, Vojnovic´ and his family were tenants in a state-owned apartment complex in Croatia. They claimed that they were forced to leave the 15 16

See [1.114] and [4.19]ff for discussion of private sector ICCPR abuse. See also Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 399–401.

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country due to racial harassment in 1991, as they were ethnic Serbs. In 1995, the Zagreb Municipal court found that the family had abandoned the property for over six months without justification, so it revoked the tenancy in accordance with law. The apartment was leased to another family. The Vojnovic´s returned to Croatia in 1998, and were unsuccessful in their attempts to reclaim their tenancy rights. The HRC agreed with the author that the circumstances manifested a breach of article 17: ¶8.6. The Committee observes that the termination of the author’s specially protected tenancy was in accordance with Croatian law. . . . The issue for the Committee to decide is therefore whether the termination was arbitrary. The Committee notes the author’s claims that he and his family left the apartment due to threats they had received because they belong to the Serb national minority; that for fear of reprisals they did not seek any protection from the authorities in Croatia but upon arrival in Belgrade, the author informed the Government of the Socialist Federal Republic of Yugoslavia of the threats and requested protection; that this request remained unanswered; and that on 16 March 1995 he received a negative reply from the representative of the Government of the State party in Belgrade regarding his request for assistance with respect to his apartment. The author further claims that as he did not have valid identification documents from 1991 to 1997, he was not able to travel to Zagreb to take the necessary measures to protect his tenancy rights and that despite the authorities’ knowledge of the author’s temporary address in Belgrade, they did not convoke him to participate in the first court proceedings before the Zagreb Municipal Court. The Committee also notes the State party’s arguments that the termination of the author’s specially protected tenancy relied on a legal basis (the Housing Relations Act) and pursued a legitimate aim—liberating housing space to provide accommodation for other citizens in need. It also respected the principle of proportionality, given that in domestic proceedings the author did not succeed in proving that his and his family’s departure from the flat was due to threats received and that even if such threats had occurred and that they were not reported for justified reasons; the author should have taken steps to ensure the protection of his tenancy as according to domestic case law. ¶8.7. Taking note of the fact that the author and his family belong to the Serb minority, and that the threats, intimidation and unjustified dismissal experienced by the author’s son in 1991 were confirmed by a domestic court, the Committee concludes that it appears that the departure of the author and his family from the State party was caused by duress and related to discrimination. The Committee notes that despite the author’s inability to travel to Croatia for lack of personal identification documents, he informed the State party of the reasons of his departure from the apartment in question. Furthermore, as ascertained by the Zagreb Municipal Court, the author was unjustifiably not convoked to participate in the 1995 court proceedings before the latter. The Committee therefore concludes that the deprivation of the author’s tenancy rights was arbitrary and amounts to a violation of article 17 in conjunction with article 2, paragraph 1, of the Covenant.

[16.20]

PEIRIS v SRI LANKA (1862/09)

The facts are evident from the finding of violation. ¶7.6. The Committee has taken note of the author’s contention that police officers harassed her and her family in their home through threatening telephone calls and forced visits, including the severe assault on their home in November 2007, and that subsequently they feared to live in their home and were forced into hiding, and were unable to live a peaceful

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family life. The Committee also notes the continuing harm resulting from the State party’s failure to take any action in response to the Committee’s request to adopt interim measures to protect the author and her family. In the absence of any rebuttal by the State party, the Committee concludes that the State party’s interference with the privacy of the family home of the author was arbitrary, in violation of article 17 of the Covenant.

[16.21] In Concluding Observations on Kenya, the HRC stated the following:17 ¶22. While noting the delegation’s explanations on the issue, the Committee remains concerned about reports of the forcible eviction of thousands of inhabitants from so called informal settlements, both in Nairobi and other parts of the country, without prior consultation with the populations concerned and/or without adequate prior notification. This practice arbitrarily interferes with the Covenant rights of the victims of such evictions, especially their rights under article 17 of the Covenant. The State party should develop transparent policies and procedures for dealing with evictions and ensure that evictions from settlements do not occur unless those affected have been consulted and appropriate resettlement arrangements have been made.

In Concluding Observations on Israel, the HRC stated:18 ¶17. The Committee is concerned that, despite its previous recommendation in paragraph 16 of its concluding observations (CCPR/CO/78/ISR), the State party continues its practice of demolishing property and homes of families whose members were or are suspected of involvement in terrorist activities, without considering other less intrusive measures. This practice was disproportionately exacerbated during the State party’s military intervention in the Gaza Strip (‘Operation Cast Lead’), leading to the destruction of housing and civilian infrastructure such as hospitals, schools, farms, water plants etc. Moreover, the Committee is concerned at frequent administrative demolition of property, homes and schools in the West Bank and East Jerusalem owing to the absence of construction permits, their issuance being frequently denied to Palestinians. Furthermore, it is concerned at discriminatory municipal planning systems, in particular in ‘area C’ of the West Bank and in East Jerusalem, disproportionately favouring the Jewish population of these areas (arts. 7, 17, 23 and 26). The Committee reiterates that the State party should cease its practice of collective punitive home and property demolitions. The State party should also review its housing policy and issuance of construction permits with a view to implementing the principle of non-discrimination regarding minorities, in particular Palestinians, and to increasing construction on a legal basis for minorities of the West Bank and East Jerusalem. It should also ensure that municipal planning systems are not discriminatory.

[16.22]

NGAMBI v FRANCE (1179/03)

Mr Benjamin Ngambi was a lawful French resident. He had married Ms Marie-Louise Nébol in Cameroon before fleeing and attaining refugee status in France. France subsequently refused to issue Nébol with a family reunion visa as it found that the marriage was a sham. During the visa application process, French authorities 17 (2005) UN doc CCPR/CO/83/KEN. See also Concluding Observations on Bosnia and Herzegovina (2006) UN doc CCPR/C/BIH/CO/1, para 23; Bulgaria (2011) UN doc CCPR/C/BGR/CO/3, para 24. 18 (2010) UN doc CCPR/C/ISR/CO/3.

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discovered that Ngambi had an affair and a child with another woman, and informed Nébol of that fact. Ngambi claimed that the denial of the visa, as well as the passing of that information to Nébol, breached their rights under article 17 [see also 20.12]. The HRC found that the claim was inadmissible: ¶6.5. With regard to the alleged violation of article 17 of the Covenant, that is, interference with private and family life, the Committee notes that the inquiries conducted by the French authorities as to Ms. Nébol’s status and family relations followed upon her request for a visa for family reunification, and necessarily had to cover considerations relating to the private and family life of the authors. The Committee considers that the authors have not demonstrated that these inquiries amounted to arbitrary and illegal interference in their private and family life. . . .

[16.23]

TORNEL et al v SPAIN (1473/06)

The authors were the parents and sibling of a man, Diego Morales Tornel, who was convicted of crimes and sentenced to a long prison term. While in prison, Tornel was diagnosed with AIDS. The prison authorities failed to keep the family informed of Tornel’s illness and deterioration. The HRC found a breach of article 17(1): ¶7.3. The Committee must also decide whether the fact that the prison administration failed to inform the authors of the seriousness of Mr. Morales Tornel’s condition during the final months of his life constitutes a violation of the right of the authors not to be subjected to arbitrary interference with their family. The Committee recalls its jurisprudence to the effect that arbitrariness within the meaning of article 17 is not confined to procedural arbitrariness, but extends to the reasonableness of the interference with the person’s rights under article 17 and its compatibility with the purposes, aims and objectives of the Covenant. ¶7.4. The Committee notes that in April 1993 Mr. Morales Tornel was diagnosed as an incurably ill patient whose health was seriously deteriorating. In May 1993 the prison in which he was incarcerated conveyed this information to his family, which stated its willingness to take care of the patient if he were granted conditional release. Although his condition continued to deteriorate, the prison, according to the information in the file, did not resume contact with the family. Nor did it inform the Directorate General of Penal Institutions of this deterioration, despite the fact that, in turning down the request for conditional release, on 25 October of that year, the Directorate General had stated that a fresh application should promptly be filed in the event of a significant worsening in the prisoner’s condition. The prison also failed to inform the family of his final admission to hospital, on 13 December 1993, when the patient was already terminally ill. The family only discovered that he was in hospital when they themselves tried to contact Mr. Morales Tornel. Under the circumstances, the Committee considers that the passive attitude of the prison deprived the authors of information which undoubtedly had a significant impact on their family life, and which may be characterized as arbitrary interference with the family and as a violation of article 17, paragraph 1, of the Covenant. At the same time, the State party has not demonstrated that such interference was reasonable or compatible with the purposes, aims and objectives of the Covenant.

The HRC found a complaint regarding the family rights of Mr Tornel himself to be inadmissible, as there was no evidence that he had been prevented from informing his family of his condition.19 19

At para 6.5.

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[16.24] Most article 17 cases regarding allegations of family interferences have also concerned article 23(1), which guarantees families rights of protection. Due to the more specialized nature of that right, most ‘family rights’ cases are discussed in Chapter 20 (on article 23). A seminal case on family rights is the following. AUMEERUDDY-CZIFFRA et al v MAURITIUS (35/78) This complaint concerned legislation in Mauritius which provided different residential status for alien men and women married to Mauritian nationals. Alien men were placed in a more precarious residential position than alien women in Mauritius. The authors included 20 Mauritian women, three of whom were married to foreign husbands. The HRC found a breach of article 17 in relation to the married authors20 and it made the following comments: ¶9.2. (b) 2 (i) 1 First, their relationships to their husbands clearly belong to the area of ‘family’ as used in article 17 (1) of the Covenant. They are therefore protected against what that article calls ‘arbitrary or unlawful interference’ in this area. ¶9.2. (b) 2 (i) 2 The Committee takes the view that the common residence of husband and wife has to be considered as the normal behaviour of a family. Hence, and as the State party has admitted, the exclusion of a person from a country where close members of his family are living can amount to an interference within the meaning of article 17. In principle, article 17 (1) applies also when one of the spouses is an alien. Whether the existence and application of immigration laws affecting the residence of a family member is compatible with the Covenant depends on whether such interference is either ‘arbitrary or unlawful’ as stated in article 17 (1), or conflicts in any other way with the State party’s obligations under the Covenant. ¶9.2. (b) 2 (i) 3 In the present cases, not only the future possibility of deportation, but the existing precarious residence situation of foreign husbands in Mauritius represents, in the opinion of the Committee, an interference by the authorities of the State party with the family life of the Mauritian wives and their husbands. The statutes in question have rendered it uncertain for the families concerned whether and for how long it will be possible for them to continue their family life by residing together in Mauritius. Moreover, . . . even the delay for years, and the absence of a positive decision granting a residence permit, must be seen as a considerable inconvenience, among other reasons because the granting of a work permit, and hence the possibility of the husband to contribute to supporting the family, depends on the residence permit, and because deportation without judicial review is possible at any time. ¶9.2. (b) 2 (i) 4 Since, however, this situation results from the legislation itself, there can be no question of regarding this interference as ‘unlawful’ within the meaning of article 17 (1) in the present cases. It remains to be considered whether it is ‘arbitrary’ or conflicts in any other way with the Covenant. ¶9.2. (b) 2 (i) 5 The protection owed to individuals in this respect is subject to the principle of equal treatment of the sexes which follows from several provisions of the Covenant. It is an obligation of the State parties under article 2 (1) generally to respect and ensure the 20 The other women were found not to be relevant victims for the purposes of an OP complaint. See [3.40].

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rights of the Covenant ‘without distinction of any kind, such as . . . (inter alia) sex’, and more particularly under article 3 ‘to ensure the equal right of men and women to the enjoyment’ of all these rights, as well as under article 26 to provide ‘without any discrimination’ for ‘the equal protection of the law’. ¶9.2. (b) 2 (i) 6 The authors who are married to foreign nationals are suffering from the adverse consequences of the statutes discussed above only because they are women. The precarious residence status of their husbands, affecting their family life as described, results from the 1977 laws which do not apply the same measures of control to foreign wives. In this connection the Committee has noted that under section 16 of the Constitution of Mauritius sex is not one of the grounds on which discrimination is prohibited. . . . ¶9.2. (b) 2 (i) 8 . . . Whether or not the particular interference could as such be justified if it were applied without discrimination does not matter here. Whenever restrictions are placed on a right guaranteed by the Covenant, this has to be done without discrimination on the ground of sex. Whether the restriction in itself would be in breach of that right regarded in isolation, is not decisive in this respect. It is the enjoyment of the rights which must be secured without discrimination. Here it is sufficient, therefore, to note that in the present position an adverse distinction based on sex is made, affecting the alleged victims in their enjoyment of one of their rights. No sufficient justification for this difference has been given. The Committee must then find that there is a violation of articles 2 (1) and 3 of the Covenant, in conjunction with article 17 (1).

[16.25] The Committee’s decision in the Mauritian Women’s Case was influenced by the discriminatory character of the legislation.21 The Committee did not decide whether legislation which restricts the residential rights of family members per se breaches article 17. However, in subsequent Concluding Observations on Zimbabwe, the HRC has confirmed that overly restrictive residential requirements for foreign spouses, even if non-discriminatory, will breach article 17 [20.19]. Relevant cases have also arisen under article 23.22 [16.26] The HRC cited article 17 in expressing concern over Turkmenistan’s deportation of foreigners ‘upon detection of an [HIV/AIDs] infection’.23 SEARCHES

[16.27]

GENERAL COMMENT 16

¶8. Searches of a person’s home should be restricted to a search for necessary evidence and should not be allowed to amount to harassment. So far as personal and body search is concerned, effective measures should ensure that such searches are carried out in a manner consistent with the dignity of the person who is being searched. Persons being subjected to body search by State officials, or medical personnel acting at the request of the State, should only be examined by persons of the same sex.

[16.28] In Rojas García v Colombia (687/96), the Colombian police forcibly entered and searched the author’s house, as part of an apparently mistaken raid 21 23

See also [23.51]. (2012) UN doc CCPR/C/TKM/CO/1/Add.1, para 15.

22

See [20.17]ff.

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24

on the wrong house. Despite detailed contention by the State Party regarding the legality of the raid, the HRC found that ‘the State party’s arguments fail[ed] to justify the conduct described’, and therefore that the raid constituted an arbitrary interference with the home of the author’s family.25 It is uncertain whether this decision indicates that all mistaken searches breach article 17. The State Party had failed to put forward any explanation of why or how the mistake was made, so there was no evidence to dissuade the HRC from a finding of arbitrariness.26 [16.29] In Yklymova v Turkmenistan (1460/06), the HRC found that ‘the searches of the author’s home without legal grounds, the deprivation of her telephone contacts, and the confiscation of her apartment, passport and ID . . . , in the absence of any pertinent explanation from the State party, amount to an arbitrary interference with her privacy, family, and home within the terms of article 17 of the Covenant.’27 [16.30] In Concluding Observations on the United Kingdom, the Committee was disturbed by reports of the continuation of the practice of strip searching prisoners in Northern Ireland, ‘in the context of the low security risk’ that existed after the terrorist cease-fire,28 confirming that strip searches should be conducted only in proportionate circumstances. CORRESPONDENCE

[16.31]

GENERAL COMMENT 16

¶8. Compliance with article 17 requires that the integrity and confidentiality of correspondence should be guaranteed de jure and de facto. Correspondence should be delivered to the addressee without interception and without being opened or otherwise read. Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited.

[16.32] As outlined in the General Comment, the State is obliged to provide protection in the law against interference with correspondence in order to protect its secrecy. The Committee has given some interpretation to the privacy of correspondence in cases involving the rights of prisoners to private correspondence. In Pinkney v Canada (27/78) the Committee found that certain legal provisions, since repealed, had not offered sufficient legal safeguards against arbitrary interference with correspondence [16.08]. [16.33] In Angel Estrella v Uruguay (74/80) the HRC held that prisoners should be allowed under necessary supervision to correspond with their families and reputable friends on a regular basis without interference. In this case the author had received only 35 out of a possible 100 censored letters and during a sevenmonth period he received none. On the facts the HRC found that the author’s 24

See paras 2.1 and 9.6. See also [9.07.] 28 (1995) UN doc. CCPR/C/79/Add.55, para 12. 26

25

At para 10.3. At para 7.6.

27

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correspondence was censored and restricted to such an extent that there was a breach of article 17 read in conjunction with article 10(1) of the Covenant, which guarantees humane treatment of detainees.29 [16.34] In Concluding Observations on Poland, the HRC stated:30 ¶22. As regards telephone tapping, the Committee is concerned (a) that the Prosecutor (without judicial consent) may permit telephone tapping; and (b) that there is no independent monitoring of the use of the entire system of tapping telephones.

In Concluding Observations on Zimbabwe, the HRC stated:31 ¶25. The Committee notes with concern that the Postmaster-General is authorised to intercept any postal articles or telegrams on grounds of public security or the maintenance of law and to deliver these items to a specified State employee. The Committee recommends that steps be taken to ensure that interception be subject to strict judicial supervision and that the relevant laws be brought into compliance with the Covenant.

[16.35] In Concluding Observations on Sweden, the HRC expressed concern over the wide powers proposed for the executive in respect of surveillance of electronic communications as a way of combating terrorism. The HRC recommended the following:32 ¶18. . . . The State party should take all appropriate measures to ensure that the gathering, storage and use of personal data not be subject to any abuses, not be used for purposes contrary to the Covenant, and be consistent with obligations under article 17 of the Covenant. To that effect, the State party should guarantee that the processing and gathering of information be subject to review and supervision by an independent body with the necessary guarantees of impartiality and effectiveness.

Thus, telephone tapping, postal interception, and electronic surveillance may be compatible with article 17, despite the language of General Comment 16 [16.31], so long as such practices are strictly controlled and overseen by independent, preferably judicial, bodies.33 PROFESSIONAL DUTIES OF CONFIDENTIALITY

[16.36] Professional duties of confidence are an important aspect of the right to privacy, as confirmed in Concluding Observations on Portugal:34 ¶18. The Committee is concerned that lawyers and medical doctors may be required to give evidence despite their duty of confidentiality, in cases which are described in very broad terms by the Code of Criminal Procedure (Article 17 of the Covenant).

29

30 See also [9.221]. (1999) UN doc CCPR/C/79/Add.110. 32 (1998) UN doc CCPR/C/79/Add.89. (2009) UN doc CCPR/C/SWE/CO/6. 33 See also Concluding Observations on Lesotho (1999) UN doc CCPR/C/79/Add.106, para 24; St Vincent and the Grenadines (2008) UN doc CCPR/C/VCT/CO/2, para 9; Netherlands (2009) UN doc CCPR/C/NLD/CO/4, para 14. 34 (2003) UN doc CCPR/CO/78/PRT. 31

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The State party should amend its legislation so that it specifies the precise circumstances in which limitations on the professional privilege of lawyers and medical doctors are imposed.

[16.37]

CORNELIS VAN HULST v NETHERLANDS (903/00)

The author, Van Hulst, hired a lawyer, Mr ATMM. The lawyer’s phone was tapped by Dutch authorities as he was a suspect in an unrelated matter. However, the taps uncovered evidence of apparent crimes by Van Hulst, leading to his arrest and conviction for those crimes. Van Hulst claimed that the interception of his conversations with his lawyer breached his rights under article 17, in particular his ‘right to confidential communication with his lawyer’.35 The Netherlands argued that the interference with correspondence was permissible: ¶4.8. The State party argues that the interference with the author’s right to privacy pursued a legitimate purpose (combating crime) and was proportionate, as the District Court ensured that the tapped conversations, in which Mr. A.T.M.M. acted as the author’s lawyer, rather than a suspect of criminal offences, were not taken into account in the criminal proceedings against the author. As for the conversations which were intercepted because A.T.M.M. was a suspect, thus not involving professional communication between a lawyer and his client, the State party argues that it is unreasonable to expect total impunity for the author and A.T.M.M. on the mere basis that the latter is also a lawyer.

The HRC decided in favour of the State party: ¶7.6. [T]he Committee must consider whether the interference with the author’s telephonic conversations with Mr. A.T.M.M. was arbitrary or reasonable in the circumstances of the case. The Committee recalls its jurisprudence that the requirement of reasonableness implies that any interference with privacy must be proportionate to the end sought, and must be necessary in the circumstances of any given case. The Committee has noted the author’s argument that clients can no longer rely on the confidentiality of communication with their lawyer, if there is a risk that the content of such communication may be intercepted and used against them, depending on whether or not their lawyer is suspected of having committed a criminal offence, and irrespective of whether this is known to the client. While acknowledging the importance of protecting the confidentiality of communication, in particular that relating to communication between lawyer and client, the Committee must also weigh the need for States parties to take effective measures for the prevention and investigation of criminal offences. ¶7.7. The Committee recalls that the relevant legislation authorizing interference with one’s communications must specify in detail the precise circumstances in which such interference may be permitted and that the decision to allow such interference can only be taken by the authority designated by law, on a case-by-case basis. It notes that the procedural and substantive requirements for the interception of telephone calls are clearly defined in Section 125g of the Dutch Code of Criminal Procedure and in the Guidelines for the Examination of Telephone Conversations of 2 July 1984. Both require interceptions to be based on a written authorization by the investigating judge. ¶7.8. The Committee considers that the interception and recording of the author’s telephone calls with A.T.M.M. did not disproportionately affect his right to communicate with 35

At para 3.1.

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his lawyer in conditions ensuring full respect for the confidentiality of the communications between them, as the District Court distinguished between tapped conversations in which A.T.M.M. participated as the author’s lawyer, and ordering their removal from the evidence, and other conversations, which were admitted as evidence because they were intercepted in the context of the preliminary inquiry against A.T.M.M. . . . ¶7.9. Insofar as the author claims that the reports of the tapped conversations between him and his lawyer should have been destroyed immediately, the Committee notes the State party’s uncontested argument that the records of the tapped conversations were kept intact in their entirety, separately from the case file, for possible inspection by the defence. As the right to privacy implies that every individual should have the right to request rectification or elimination of incorrect personal data in files controlled by public authorities, the Committee considers that the separate storage of the recordings of the author’s tapped conversations with Mr. A.T.M.M. cannot be regarded as unreasonable for purposes of article 17 of the Covenant. ¶7.10. In the light of the foregoing, the Committee concludes that the interference with the author’s privacy in regard to his telephone conversations with A.T.M.M. was proportionate and necessary to achieve the legitimate purpose of combating crime, and therefore reasonable in the particular circumstances of the case, and that there was accordingly no violation of article 17 of the Covenant.

[16.38] In analysing whether the interception of phone calls was ‘arbitrary’, the HRC found that it was reasonable to intercept conversations which could be characterized as being between two suspects, rather than between a lawyer and a client, without disproportionately affecting the lawyer-client privilege, even if the relevant conversations related to offences other than the one that had originally prompted the phone tap. The decision indicates that all of the clients of Mr A.T.M.M’s, regardless of whether they were suspected of offences or not, and regardless of whether they had reason to suspect that A.T.M.M. was involved in offences, were arguably deprived of confidential lawyer-client telephone communications with him. Even though records of their conversations might be destroyed, the police had to listen to the conversations first to decide whether they were relevant to their suspicions which had motivated the tap in the first place. It is therefore arguable that this case authorized serious inroads into the lawyer/client privilege. It may be going too far to suggest that a lawyer’s phone can never be tapped. However, it might be reasonable to insist that material gained from such taps, including derivative investigations, be limited to matters relating to the offence for which the tap was originally placed, or to offences by the lawyer rather than his or her clients, unless the lawyer is a joint offender with a client. MEDICAL TREATMENT

[16.39]

MG v GERMANY (1428/06)

In this case, the author was referred by court order to undergo a psychiatric examination due to her apparently vexatious written submissions in court proceedings against her father. The order was made without the court having actually heard or

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seen the author. She claimed, inter alia, a breach of her rights under article 17. The HRC agreed: ¶10.1. As regards the author’s claim under article 17 of the Covenant, the Committee observes that to subject a person to an order to undergo medical treatment or examination without the consent or against the will of that person constitutes an interference with privacy, and may amount to an unlawful attack on his or her honour and reputation. The issue before the Committee is therefore whether the interference with the author’s privacy was arbitrary or unlawful, or whether the order of the Ellwangen Regional Court constituted an unlawful attack against her honour or reputation. For an interference to be permissible under article 17, it must cumulatively meet several conditions, i.e. it must be provided for by law, be in accordance with the provisions, aims and objectives of the Covenant, and be reasonable in the particular circumstances of the case. ¶10.2. The Committee recalls that the order of the Ellwangen Regional Court to examine the author’s capacity to take part in the proceedings was based on Section 56 of the German Code of Civil Procedure. It notes the reasons given by the Ellwangen Regional Court for ordering a medical examination of the author, i.e. her excessive written submissions and appeals and all the work she had put into the case affecting her health, as well as the State party’s argument that the order served the legitimate purpose of protecting the ‘proper functioning of the judiciary’ and the author’s mental state of health. However, the Committee observes that the order of the Ellwangen Regional Court had the effect of requiring the author to undergo a medical examination of her physical and mental state of health, or alternatively Professor R. H. would prepare the expert opinion solely on the basis of the existing case file. It considers that to issue such an order without having heard or seen the author in person and to base this decision merely on her procedural conduct and written court submissions was not reasonable in the particular circumstances of the case. The Committee therefore finds that the interference with the author’s privacy and her honour and reputation was disproportionate to the end sought and therefore ‘arbitrary’, and concludes that her rights under article 17, in conjunction with article 14, paragraph 1, of the Covenant have been violated.

[16.40] In Brough v Australia (1184/03), a 17-year-old detainee was given anti-psychotic medicine against his will. He claimed that this treatment breached article 7. The HRC disagreed [9.149]. It did not consider whether the administration of medicine without consent breached article 17. HONOUR AND REPUTATION

[16.41]

GENERAL COMMENT 16

¶11. Article 17 affords protection to personal honour and reputation and States are under an obligation to provide adequate legislation to that end. Provision must also be made for everyone effectively to be able to protect himself against any unlawful attacks that do occur and to have an effective remedy against those responsible. States parties should indicate in their reports to what extent the honour or reputation of individuals is protected by law and how this protection is achieved according to their legal system.

Nowak suggests that ‘honour’ refers to one’s subjective opinion of him/herself (one’s self-esteem), whereas ‘reputation’ refers to one’s appraisal by others.36 36

Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 404.

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[16.42] The case of Tshisekedi v Zaire (241–242/87) concerned, inter alia, attacks on the reputation of Mr Tshisekedi, an opposition leader. He was arrested for his involvement in demonstrations in Kinshasa. During his arrest he was given a psychiatric examination and attempts were made to have him interned in a psychiatric institution. The State Party tried to justify his psychiatric assessments by submitting that, as the author displayed ‘signs of mental disturbance, the judicial authorities decided that he should undergo a psychiatric examination, both in the interests of his health and to ensure a fair trial’.37 Even though its attempts to incarcerate him were unsuccessful the government continued to allege that he was insane, even though ‘medical reports contradicted such diagnosis’.38 This action by the State was found by the Committee to violate Tshisekedi’s right to honour and reputation in breach of article 17. The case does not unfortunately explicitly state whether the government’s action was ‘unlawful’ under Zairean law. [16.43] Komarovski v Turkmenistan (1450/06) concerned, inter alia, a complaint of a violation of article 17. The authorities published a book which it falsely claimed was written by Komarovksi, which contained his purported ‘confession’ to participation in an assassination plot. The publication of this book, with authorship falsely attributed to Komarovski, was found to unlawfully interfere with his privacy, honour and reputation in violation of article 17.39 In recommending remedial action, the HRC requested that the State publicly retract ‘the imputed authorship of the book’.40 [16.44] In IP v Finland (450/91) the Committee considered whether disclosure of information about the applicant’s tax status by the tax authorities amounted to an interference with his privacy and an unlawful attack on his honour and reputation. The Committee found that the claim was inadmissible as the article 17 complaint had not been sufficiently substantiated. This case lends support for the argument that the protection for one’s honour and reputation under article 17 is limited only to unlawful attacks and does not catch arbitrary attacks.41 As there was lawful authority for the disclosure there was no breach of article 17. [16.45] In RLM v Trinidad and Tobago (380/89), the author, who was an attorney, argued that a judge’s criticism of him whilst in court was an unlawful attack on his honour and reputation. The case was found by the Committee to be inadmissible as the criticism was not an unlawful attack. The judge’s comments were privileged and therefore could not be viewed as unlawful.42

37

38 At para 4.3. At para 12.7. 40 At para 7.7. At para 8. 41 See Michael, ‘Privacy’, 352 and Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 403–4. 42 See also Simons v Panama (460/91) where the Committee considered the author’s claim that criminal proceedings against him were based on false evidence and were therefore an attack on his honour and professional reputation. The case was found to be inadmissible. 39

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SAYADI and VINCK v BELGIUM (1472/06)

The authors’ names were placed on the UN Security Council Sanctions Committee’s List after their names had been transmitted to the Committee by the State party due to their association with a listed organization, the Global Relief Foundation (GRF). The List purportedly lists organizations and individuals suspected of terrorism, and various sanctions follow from placement on the list [12.23]. Belgium submitted the names only a few weeks after opening a criminal investigation into the authors, before the conclusion of that investigation. In fact, the investigation later concluded that the authors were not a danger to Belgian national security. The HRC found that Belgium was not required to transmit the names by Security Council resolutions [1.89]. It went on to find that the transmittal of the names, which inevitably resulted in the placement of the names on the list along with associated serious consequences, breached article 17. ¶10.12. With regard to the allegation of a violation of article 17 of the Covenant, the Committee takes note of the authors’ arguments that their full contact details have been made available to everyone through their inclusion on the Sanctions Committee’s list. It recalls that article 17 recognizes the right of everyone to protection against arbitrary or unlawful interference with his privacy, family, home or correspondence, and against unlawful attacks on his honour and reputation. The obligations imposed by this article require the State party to adopt legal or other measures to give effect to the prohibition on such interference or attacks on the protection of this right. In the present case, the Committee finds that the sanctions list is available to everyone on the Internet under the title The Consolidated List established and maintained by the 1267 Committee with respect to Al-Qaida, Usama Bin Laden, and the Taliban and other individuals, groups, undertakings and entities associated with them. It also finds that the authors’ names were included in the ministerial order of 31 January 2003 amending the ministerial order of 15 June 2000 implementing the Royal Decree of 17 February 2000, concerning restrictive measures against the Taliban of Afghanistan, as published in the State party’s Official Gazette. It considers that the dissemination of personal information about the authors constitutes an attack on their honour and reputation, in view of the negative association that some persons could make between the authors’ names and the title of the sanctions list. Moreover, many press articles that cast doubt on the authors’ reputation have been published, and the authors are obliged, on a regular basis, to demand the publication of a right of reply. ¶10.13. The Committee takes note of the authors’ argument that the State party should be held responsible for the presence of their names on the United Nations sanctions list, which has led to interference in their private life and to unlawful attacks on their honour and reputation. It recalls that it was the State party that communicated all the personal information concerning the authors to the Sanctions Committee in the first place. The State party argues that it was obliged to transmit the authors’ names to the Sanctions Committee. . . . However, the Committee notes that it did so on 19 November 2002, without waiting for the outcome of the criminal investigation initiated at the request of the Public Prosecutor’s Office. Moreover, it notes that the names are still on the lists in spite of the dismissal of the criminal investigation in 2005. Despite the State party’s requests for removal, the authors’ names and contact data are still accessible to the public on United Nations, European and State party lists. The Committee therefore finds that, in the present case, even though the State party is not competent to remove the authors’ names from the United Nations and European lists,

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it is responsible for the presence of the authors’ names on those lists. The Committee concludes that the facts, taken together, disclose that, as a result of the actions of the State party, there has been an unlawful attack on the authors’ honour and reputation. Consequently, the Committee concludes that there has been a violation of article 17 of the Covenant.

[16.47] The HRC has made the following comment regarding certain anti-terrorism orders in the Netherlands:43 ¶15. The Committee is concerned that, as part of measures to combat terrorism, local mayors may issue administrative ‘disturbance orders’ under which an individual may be subjected to interference in his daily life. Such interference can include house calls, approaching the individual’s acquaintances and repeatedly approaching the person in public. Since disturbance orders do not require judicial authorization or oversight, the Committee is concerned at the risk that their application may be inconsistent with the right to privacy (art. 17).

[16.48] Extant Optional Protocol cases indicate that ‘unlawful’ in the context of article 17 means ‘unlawful’ in domestic law. If so, the protection offered to honour and reputation is potentially very weak [16.09]. However, the HRC has more recently interpreted the word ‘lawful’ in the context of article 9(4) to mean more than simple compliance with municipal law.44 This may herald broader interpretations of the word ‘unlawful’ in the context of article 17 protection of honour and reputation in the future. SEXUAL PRIVACY

[16.49] Regulation of sexual behaviour that takes place in private may be an interference with privacy. In this regard, one may note the minority opinion in Hertzberg et al v Finland (61/79), where it was stated that article 17 protects the ‘right to be different and live accordingly’.45 Such regulation may relate to the sexual regulation of heterosexuals, homosexuals, paedophiles, prostitutes, pornographers, and sado-masochists.46 [16.50]

TOONEN v AUSTRALIA (488/92)

This case concerned a challenge to Tasmanian laws which criminalized sexual relations between consenting males. The author submitted the following facts: ¶2.1. The author is an activist for the promotion of the rights of homosexuals in Tasmania, one of Australia’s six constitutive states. He challenges two provisions of the Tasmanian Criminal Code, namely Sections 122(a) and (c) and 123, which criminalise various forms of sexual contacts between men, including all forms of sexual contacts between consenting adult homosexual men in private.

43

44 (2009) UN doc CCPR/C/NLD/CO/4. See [11.91]ff. See [18.68]. 46 See Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 391–2. See also Laskey, Jaggard and Brown v UK (1997) 24 EHRR 39, where UK prohibitions on certain sado-masochistic practices were found to be compatible with the ECHR guarantee of privacy (art 8 ECHR). 45

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¶2.2. The author observes that the above sections of the Tasmanian Criminal Code empower Tasmanian police officers to investigate intimate aspects of his private life and to detain him, if they have reason to believe that he is involved in sexual activities which contravene the above sections. He adds that the Director of Public Prosecutions announced, in August 1988, that proceedings pursuant to Sections 122(a), (c) and 123 would be initiated if there was sufficient evidence of the commission of a crime.

Toonen conceded that the law had not been enforced for many years, but argued that the stigmatizing effects of the law nevertheless rendered him a victim.47 ¶3.1. The author affirms that Sections 122 and 123 of the Tasmanian Criminal Code violate articles 2, paragraph 1, 17 and 26 of the Covenant because: (a) they do not distinguish between sexual activity in private and sexual activity in public and bring private activity into the public domain. In their enforcement, these provisions result in a violation of the right to privacy, since they enable the police to enter a household on the mere suspicion that two consenting adult homosexual men may be committing a criminal offence. Given the stigma attached to homosexuality in Australian society (and especially in Tasmania), the violation of the right to privacy may lead to unlawful attacks on the honour and the reputation of the individuals concerned. (b) they distinguish between individuals in the exercise of their right to privacy on the basis of sexual activity, sexual orientation and sexual identity.

The State Party’s arguments were unusual in that they essentially supported those of the author. It argued as follows: ¶6.6. . . . the State party cautions that the formulation of article 17 allows for some infringement of the right to privacy if there are reasonable grounds, and that domestic social mores may be relevant to the reasonableness of an interference with privacy. The State party observes that while laws penalizing homosexual activity existed in the past in other Australian states, they have since been repealed with the exception of Tasmania. Furthermore, discrimination on the basis of homosexuality or sexuality is unlawful in three of six Australian states and the two self-governing internal Australian territories. The Federal Government has declared sexual preference to be a ground of discrimination that may be invoked under ILO Convention No. 111 (Discrimination in Employment or Occupation Convention), and created a mechanism through which complaints about discrimination in employment on the basis of sexual preference may be considered by the Australian Human Rights and Equal Opportunity Commission. ¶6.7. On the basis of the above, the State party contends that there is now a general Australian acceptance that no individual should be disadvantaged on the basis of his or her sexual orientation. Given the legal and social situation in all of Australia except Tasmania, the State party acknowledges that a complete prohibition on sexual activity between men is unnecessary to sustain the moral fabric of Australian society. On balance, the State party ‘does not seek to claim that the challenged laws are based on reasonable and objective criteria’. ¶6.8. Finally, the State party examines, in the context of article 17, whether the challenged laws are a proportional response to the aim sought. It does not accept the argument of 47

See, on the ‘victim’ aspect of this case, [3.48].

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the Tasmanian authorities that the extent of interference with personal privacy occasioned by Sections 122 and 123 of the Tasmanian Criminal Code is a proportional response to the perceived threat to the moral standards of Tasmanian society. In this context, it notes that the very fact that the laws are not enforced against individuals engaging in private, consensual sexual activity indicates that the laws are not essential to the protection of that society’s moral standards. In the light of all the above, the State party concludes that the challenged laws are not reasonable in the circumstances, and that their interference with privacy is arbitrary. It notes that the repeal of the laws has been proposed at various times in the recent past by Tasmanian governments. . . . ¶8.4. While the State party acknowledges that the impugned provisions constitute an arbitrary interference with Mr Toonen’s privacy, the Tasmanian authorities submit that the challenged laws are justified on public health and moral grounds, as they are intended in part to prevent the spread of HIV/AIDS in Tasmania, and because, in the absence of specific limitation clauses in article 17, moral issues must be deemed a matter for domestic decision.

The HRC found that the relevant provisions of Tasmania’s Criminal Code violated Toonen’s rights under article 17: ¶8.2. Insomuch as article 17 is concerned, it is undisputed that adult consensual sexual activity in private is covered by the concept of ‘privacy’, and that Mr Toonen is actually and currently affected by the continued existence of the Tasmanian laws. The Committee considers that Sections 122(a), (c) and 123 of the Tasmanian Criminal Code ‘interfere’ with the author’s privacy, even if these provisions have not been enforced for a decade. In this context, it notes that the policy of the Department of Public Prosecutions not to initiate criminal proceedings in respect of private homosexual conduct does not amount to a guarantee that no actions will be brought against homosexuals in the future, particularly in the light of undisputed statements of the Director of Public Prosecutions of Tasmania in 1988 and those of members of the Tasmanian Parliament. The continued existence of the challenged provisions therefore continuously and directly ‘interferes’ with the author’s privacy. ¶8.3. The prohibition against private homosexual behaviour is provided for by law, namely, Sections 122 and 123 of the Tasmanian Criminal Code. As to whether it may be deemed arbitrary, the Committee recalls that pursuant to its General Comment 16(32) on article 17, the ‘introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances’. The Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case. . . . ¶8.5. As far as the public health argument of the Tasmanian authorities is concerned, the Committee notes that the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of HIV/AIDS. The Australian Government observes that statutes criminalizing homosexual activity tend to impede public health programmes ‘by driving underground many of the people at the risk of infection’. Criminalisation of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. Secondly, the Committee notes that no link has been shown between the continued criminalization of homosexual activity and the effective control of the spread of the HIV/AIDS virus.

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¶8.6. The Committee cannot accept either that for the purposes of article 17 of the Covenant, moral issues are exclusively a matter of domestic concern, as this would open the door to withdrawing from the Committee’s scrutiny a potentially large number of statutes interfering with privacy. It further notes that with the exception of Tasmania, all laws criminalizing homosexuality have been repealed throughout Australia and that, even in Tasmania, it is apparent that there is no consensus as to whether Sections 122 and 123 should not also be repealed. Considering further that these provisions are not currently enforced, which implies that they are not deemed essential to the protection of morals in Tasmania, the Committee concludes that the provisions do not meet the ‘reasonableness’ test in the circumstances of the case, and that they arbitrarily interfere with Mr Toonen’s right under article 17, paragraph 1.

[16.51] The Committee rejected the Tasmanian argument that public morals are exclusively a domestic matter. A contrary decision could have permitted States to justify extremely oppressive measures with potentially dubious references to public morality. ‘State claims of moral justification could only [then] be investigated as to whether they were bona fide; any apparent unreasonableness entailed in the moral justification would be irrelevant.’48 This would have drastically reduced the individual’s right to privacy under the Covenant. [16.52] At paragraph 8.6 of the decision, the Committee noted the widespread acceptance of homosexuality in Australia as evidence that prohibitions on gay sex were not necessary to protect public morals. This indicates that public morality is a relative value,49 indicating that prohibitions on gay sex might survive a challenge from a ‘less tolerant’ State.50 However, the HRC has confirmed the universal application of Toonen in more recent Concluding Observations.51 It has also confirmed that States are required to protect people from discrimination on the basis of their sexuality [23.54]. GENDER AND PRIVACY

[16.53]

GENERAL COMMENT 28

In General Comment 28 on Equality of Rights between Men and Women, the HRC identified certain gender-based violations of the right to privacy: ¶20. States parties must provide information to enable the Committee to assess the effect of any laws and practices that may interfere with women’s right to enjoy privacy and other rights protected by article 17 on the basis of equality with men. An example of such interference arises where the sexual life of a woman is taken into consideration to decide the extent of her legal rights and protections, including protection against rape. Another area where States may fail to respect women’s privacy relates to their reproductive functions, 48 S Joseph, ‘Gay Rights Under the ICCPR—Commentary on Toonen v Australia’ (1994) 13 University of Tasmania Law Review 392 at 397. 49 See also [18.69]. 50 See Joseph, ‘Gay Rights Under the ICCPR’ at 407. 51 See also eg Concluding Observations on Kenya (2005) UN doc CCPR/CO/83/KEN, para 27; Barbados (2007) UN doc CCPR/C/BRB/CO/3, para 13; Zambia (2007) UN doc CCPR/C/ZMB/CO/3, para 24; Algeria (2007) UN doc CCPR/C/DZA/CO/3, para 26; Botswana (2008) UN doc CCPR/C/ BWA/CO/1, para 22.

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for example, where there is a requirement for the husband’s authorization to make a decision in regard to sterilization, where general requirements are imposed for the sterilization of women, such as having a certain number of children or being of a certain age, or where States impose a legal duty upon doctors and other health personnel to report cases of women who have undergone abortion. In these instances, other rights in the Covenant, such as those of articles 6 and 7, might also be at stake.52 Women’s privacy may also be interfered with by private actors, such as employers who request a pregnancy test before hiring a woman.53 States parties should report on any laws and public or private actions that interfere with the equal enjoyment by women of the rights under article 17, and on the measures taken to eliminate such interference and to afford women protection from any such interference.54

The General Comment also confirms that privacy entails rights of autonomy over one’s own body. [16.54]

LLANTOY-HUAMÁN v PERU (1153/03)

Karen Llantoy-Huamán became pregnant at the age of 17. She was told after three months that she was carrying an anencephalic foetus. She was advised by her doctor that the condition was always fatal to the foetus within a short time of birth, and that it could be dangerous to her during the pregnancy. The doctor therefore advised that the pregnancy be terminated. However, Llantoy Huamán was refused permission for a therapeutic abortion from the hospital director. He informed her that under the Peruvian Criminal Code an abortion was unlawful even if the child was born with serious physical or mental defects, and that it was only lawful where it was the only way of saving the mother’s life, or of avoiding serious and permanent damage to her health. Ultimately, she gave birth to a baby girl, who died four days later. After her daughter’s death, she was diagnosed with severe depression as well as an inflammation of the vulva which necessitated medical treatment. Llantoy Huamán claimed that the denial of an abortion breached a number of rights, including article 17. The HRC agreed: ¶6.4. The author states that the State party, in denying her the opportunity to secure medical intervention to terminate the pregnancy, interfered arbitrarily in her private life. The Committee notes that a public-sector doctor told the author that she could either continue with the pregnancy or terminate it in accordance with domestic legislation allowing abortions in cases of risk to the life of the mother. In the absence of any information from the State party, due weight must be given to the author’s claim that at the time of this information, the conditions for a lawful abortion as set out in the law were present. In the circumstances of the case, the refusal to act in accordance with the author’s decision to terminate her pregnancy was not justified and amounted to a violation of article 17 of the Covenant.

[16.55]

LMR v ARGENTINA (1608/07)

The alleged victim was a 20-year-old girl with a mental age of ten. She became pregnant after being raped. She and her mother sought an abortion. However, the 52

See [8.90]ff and [9.58]ff. See also Concluding Observations on Mexico (1999) UN doc CCPR/C/79/Add.109, para 17. 54 See, on the general obligation to prevent invasions of privacy by the private sector, [16.15]ff. 53

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559

Argentina juvenile court issued an injunction to prevent the abortion. An appeal court overturned the decision six weeks after the abortion was first requested. The relevant hospital then refused to perform the abortion as the pregnancy was then 20 weeks old. An illegal abortion took place about 23 weeks into the pregnancy. The HRC found that the circumstances gave rise to, inter alia, a breach of article 17:55 ¶9.3. The Committee takes note of the author’s allegation that the facts described constituted arbitrary interference in L.M.R.’s private life. It also notes the State party’s acknowledgement that the State’s unlawful interference, through the judiciary, in an issue that should have been resolved between the patient and her physician could be considered a violation of her right to privacy.56 In the circumstances, the Committee considers that the facts reveal a violation of article 17, paragraph 1 of the Covenant.

[16.56]

LNP v ARGENTINA (1610/07)

This case concerned the appallingly insensitive treatment of a young indigenous girl who alleged she had been raped by authorities. The HRC found several violations,57 including of article 17: ¶13.7. Regarding the author’s complaint related to article 17 of the Covenant, the Committee considers that the constant enquiries by the social worker, by medical personnel and by the court into the author’s sexual life and morality constitute arbitrary interference with her privacy and an unlawful attack on her honour and reputation, all the more so because those enquiries were not relevant to the rape case and related to a minor. The Committee recalls its general comment No. 28, in which it points out that interference, in the sense in which the term is used in article 17, arises when the sexual life of a woman is taken into consideration in deciding the extent of her legal rights and protections, including protection against rape. In view of the above, the Committee finds a violation of article 17 of the Covenant.

[16.57] In Concluding Observations on Ireland, the HRC stated: ¶8. The Committee . . . is . . . concerned that the State party has not recognized a change of gender by transgender persons by permitting birth certificates to be issued for these persons (arts. 2, 16, 17, 23, and 26). DATA PROTECTION

[16.58]

GENERAL COMMENT 16

¶10. The gathering and holding of personal information on computers, databanks and other devices, whether by public authorities or private individuals or bodies, must be regulated by law. Effective measures have to be taken by States to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorised by law to receive, process and use it, and is never used for purposes incompatible with the Covenant. In order to have the most effective protection of his private life, every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is 55

See also [8.90]ff, [9.58]ff, and [23.109] on abortion. See para 6.3, where the State Party conceded that a violation of the right to privacy had taken place. 57 See also [9.60], [14.24], and [23.106]. 56

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stored in automatic data files, and for what purposes. Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control their files. If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law, every individual should have the right to request rectification or elimination.58

Modern computer technology is capable of storing and gathering enormous amounts of personal information. The application of article 17 in the field of data protection is therefore very important. [16.59] In Concluding Observations on France, the HRC stated:59 ¶22. While acknowledging the important role played by the National Commission of Information Technology and Liberties (Commission nationale de l’informatique et des libertés, CNIL) in protecting the integrity and confidentiality of information concerning a person’s private life against any arbitrary or unlawful interference emanating from public authorities or private individuals or bodies, the Committee is concerned at the proliferation of different databases, and notes that according to reports received, the gathering, storage and use of sensitive personal data contained in databases such as EDVIGE (exploitation documentaire et valorisation de l’information générale) and STIC (système de traitement des infractions constatées) pose concerns with regard to article 17 of the Covenant (arts. 17 and 23). The State party should take all appropriate measures to ensure that the gathering, storage and use of sensitive personal data are consistent with its obligations under article 17 of the Covenant. Taking into account general comment No. 16 (1988) on Article 17 (Right to privacy), the State party should in particular ensure that: 1. The gathering and holding of personal information on computers, data banks and other devices, whether by public authorities or private individuals or bodies, is regulated by law; 2. Effective measures are adopted to ensure that such information does not reach the hands of persons who are not authorized by law to receive, process and use it; 3. Individuals under its jurisdiction have the right to request rectification or elimination of information when it is incorrect or has been collected or processed contrary to the provisions of the law; 4. EDVIGE is restricted to children above the age of thirteen who have been convicted of a criminal offence; 5. STIC is restricted to individuals who are suspected in an enquiry of having committed a criminal offence.

[16.60] In contrast, in Concluding Observations on Hungary,60 the HRC criticized the overly high privacy protection enforced in respect of data: 58 See also Concluding Observations on the Republic of Korea (1999) UN doc CCPR/C/79/Add.114, para 17, where the HRC criticized the lack of ‘adequate remedies by way of correction of inaccurate information in data-bases or for their misuse or abuse’. 59 (2008) UN doc CCPR/C/FRA/CO/4; see also Concluding Observations on Spain (2009) UN doc CCPR/C/ESP/CO/5, para 11. 60 (2010) UN doc CCPR/C/HUN/CO/5.

Right to Privacy

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¶6. The Committee is concerned at the high level of protection afforded by Act LXIII of 1992 on the Protection of Personal Data and Public Access to Data of Public Interest, which prohibits the collection of disaggregated personal data of any kind. The Committee is concerned that this prohibition impedes it from effectively monitoring the implementation of the provisions of the Covenant (arts. 2 and 17). The State party should review the provisions of Act LXIII on the Protection of Personal Data and Public Access to Data of Public Interest to ensure that it is in line with the Covenant, particularly article 17, as expounded by the Committee in its general comment No. 16. The State party should ensure that the protection afforded to personal data should not hinder the legitimate collection of data that would facilitate the monitoring and evaluation of programmes that have a bearing on the implementation of the Covenant. DNA TESTING

[16.61] The HRC has addressed the issue of DNA testing pursuant to a dialogue on Denmark’s fourth periodic report. The HRC stated:61 ¶15. The Committee notes that, under the Aliens Act, article 40(c), the Immigration Authorities may require DNA testing of an applicant and the persons with whom the applicant claims family ties on which a residence permit is to be based. ¶DNA testing may have important implications for the right of privacy under article 17 of the Covenant. Denmark should ensure that such testing is used only when necessary and appropriate to the determination of the family tie on which a residence permit is based (art. 23).62

The HRC has not yet commented on other uses of DNA testing, such as its use in solving crimes and diagnosing diseases.

Conclusion [16.62] The HRC has confirmed that the prohibition of ‘arbitrary’ interferences with privacy covers interferences which are nevertheless authorized by domestic law. Useful jurisprudence has addressed specific aspects of privacy, such as data protection, legally privileged communications, control over one’s name, correspondence, sexual privacy, honour, reputation, as well as privacy within the family unit.

61

(2000) UN doc CCPR/CO/70/DNK. See also Concluding Observations on France (2008) UN doc CCPR/C/FRA/CO/4, para 21 [20.22]. 62

17 Freedom of Thought, Conscience, and Religion—Article 18 • • • • •

• • • •

Freedom of Thought, Conscience, and Religion . . . . . . . . . . . . . . . . . . Freedom to Have or Adopt a Religion or Belief . . . . . . . . . . . . . . . . . . Manifesting Religion or Belief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prohibition of Coercion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limitations on the Freedom to Manifest One’s Religion or Belief . . . . • Public Safety and Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Public Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Public Morals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Establishment of a Religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Right of Conscientious Objection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rights Regarding Religious and Moral Education—Article 18(4) . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[17.02] [17.12] [17.14] [17.18] [17.28] [17.31] [17.35] [17.37] [17.38] [17.41] [17.50] [17.57]

ARTICLE 18 1. Everyone shall have the right to freedom of thought conscience and religion. This right shall include freedom to have or to adopt a religion or belief of one’s choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and where applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

[17.01] The protection of freedom of religion, belief, and conscience in article 18 is supplemented by the United Nations Declaration on the Elimination of All Forms of Discrimination based on Religion or Belief 1981. However, this Declaration has failed, after 18 years, to spawn a binding treaty in this area, comparable to the conventions on the elimination, respectively, of race and sex discrimination. Nevertheless, there is no doubt that the HRC has been influenced by the Declaration, particularly in its interpretation of article 18 in General Comment 22.1

1

See B Dickson, ‘The United Nations and Freedom of Religion’ (1995) 44 ICLQ 341 at 345–6.

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563

Freedom of Thought, Conscience, and Religion [17.02]

GENERAL COMMENT 22

¶1. The right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) in article 18(1) is far-reaching and profound; it encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others. The Committee draws the attention of States parties to the fact that the freedom of thought and the freedom of conscience are protected equally with the freedom of religion and belief. The fundamental character of these freedoms is also reflected in the fact that this provision cannot be derogated from, even in time of public emergency, as stated in article 4(2) of the Covenant. ¶2. Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms ‘belief’ and ‘religion’ are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community. ¶3. Article 18 distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice. These freedoms are protected unconditionally, as is the right of everyone to hold opinions without interference in article 19(1). In accordance with articles 18(2) and 17, no one can be compelled to reveal his thoughts or adherence to a religion or belief.2

[17.03] As article 18 protects one’s freedom of religion, thought, and conscience, the HRC has decided, perhaps wisely, not to define ‘religion’. Therefore, it has not grappled with the relevance to that definition of such factors as: number of adherents, truth or falsity of the relevant belief, and historical foundation of the relevant movement. [17.04]

MAB, WAT and J-AYT v CANADA (570/93)

¶2.1. The authors are leading members and ‘plenipotentiaries’ of the ‘Assembly of the Church of the Universe’, whose beliefs and practices, involve the care, cultivation, possession, distribution, maintenance, integrity and worship of the ‘Sacrament’ of the Church. Whereas the authors also refer to this ‘Sacrament’ as ‘God’s tree of life’, it is generally known under the designation cannabis sativa or marijuana. ¶2.2. Since the foundation of the Church, several of its members have come into conflict with the law, as their relationship with and worship of marijuana falls within the scope of application of the provisions of the Canadian Narcotic Control Act. ¶2.3. On 17 October 1990, a constable of the Royal Canadian Mounted Police (RCMP) entered the Church’s premises in Hamilton, Ontario, under the pretext of wishing to join 2

Article 17 protects the right to privacy; see generally Ch 16. See also [18.02].

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the Church and to purchase the ‘Church Sacrament’. She was offered a few grams of marijuana, which led to the arrest and detention of W.A.T. and J.-A.Y.T. All of the marijuana and money found in their possession was confiscated and they were ordered to stand trial before a jury, under the terms of section 4 of the Narcotics Control Act. Further investigations into the activities and properties of the Church also led to the arrest and detention of M.A.B.

The authors brought a complaint before the HRC alleging, inter alia, that their right to freedom of religion had been violated. The HRC disposed of the matter shortly: ¶4.2. Taking into account the requirements laid down in articles 2 and 3 of the Optional Protocol, the Committee has examined whether the facts as submitted would raise prima facie issues under any provision of the Covenant. It concludes that they do not. In particular, a belief consisting primarily or exclusively in the worship and distribution of a narcotic drug cannot conceivably be brought within the scope of article 18 of the Covenant (freedom of religion and conscience); nor can arrest for possession and distribution of a narcotic drug conceivably come within the scope of article 9, paragraph 1, of the Covenant (freedom from arbitrary arrest and detention).

[17.05]

PRINCE v SOUTH AFRICA (1474/06)

Prince was a member of the Rastafarian faith, which embraces the use of cannabis. He challenged the South African legislation which banned the possession of cannabis as a breach of his rights under Article 18. The HRC found the case to be admissible, and stated as a response to that South African argument: ¶6.5 Regarding the State party’s reference to the Committee’s inadmissibility decision in M.A.B., W.A.T. and J.A.Y.T. v. Canada, the Committee considers that the factual and legal position in the present case can and should be distinguished from that in the Canadian case which, it understood, concerned the activities of a religious organization whose belief consisted primarily or exclusively in the worship and distribution of a narcotic drug. Rastafarianism as a religion within the meaning of article 18 is not an issue in the present case. . . .

It is possible that the HRC’s decision in Prince was influenced by the fact that South Africa conceded that Rastafarianism was a religion, despite its (somewhat vague) invocation of the MAB et al decision in defence of its legislation. That is, perhaps the HRC might have found that Rastafarianism fell outside article 18 if the point had not been conceded by South Africa. The preferred interpretation, however, is that Rastafarianism is a religion for the purposes of article 18. Perhaps MAB et al can be distinguished on the basis that the sole purpose of the proclaimed religion in that case was the worship and distribution of marijuana. Rastafarianism, in contrast, consists of numerous other tenets besides cannabis use. [17.06] Given the proliferation of cults and other self-proclaimed religious movements in the world, as well as the slippery nature of any definition of ‘religion’, it was perhaps unwise for the Committee to deny such groups the status of ‘religion’ in MAB, WAT and J-AYT v Canada, especially as such denial seemed to be motivated by its disapproval of the group’s activities. It may be

Freedom of Thought, Conscience, and Religion

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prudent to adopt a broad definition of ‘religion’ for the purposes of article 18, bearing in mind that freedom to manifest religion may be subject to numerous permissible limitations.3 For example, in this case, the HRC could have classified the Assembly as a ‘religion’, but upheld the Canadian restrictions on their manifestation of that religion (marijuana consumption) as a legitimate measure to protect public health or public order.4 Furthermore, even if the Assembly in MAB et al was not a religion, surely it could be classified as a ‘belief’, which is also protected under article 18. [17.07] The HRC has expressed concern to Belgium that no ‘mosque has been granted official recognition in Belgium’.5 The HRC made no comment on any discrimination entailed in that circumstance: clearly it spoke of itself in raising article 18 issues. [17.08] Protection under article 18 extends to new and non-traditional religions.6 In Concluding Observations on Serbia,7 the HRC stated: ¶20 Despite article 44 of the State party’s Constitution, which states that all churches and religious communities are equal, the Committee is concerned at the differentiation made in the Act on Churches and Religious Communities, regarding ‘traditional’ and other religions, in particular when it comes to the official registration of a Church or religious community and the acquisition of legal personality (arts. 18 and 26).

[17.09] In Ross v Canada (736/97), the author, a schoolteacher, submitted a complaint regarding his disciplining by Canadian local authorities on the basis of his belief, published in his writings, that the Christian faith was threatened by Judaism and Zionism.8 The State Party argued that Ross’s consequent article 18 complaint was inadmissible as article 18 was irrelevant. In its view, Ross’s expressed views were not manifestations of any religious belief. For example, it argued that anti-Semitism was simply not part of the Christian faith. The HRC ultimately found no violation, as Ross’s treatment was compatible with the permissible limitations to article 18.9 Therefore, the HRC left open the question whether Ross’s beliefs could be characterized as ‘religious’. [17.10] Article 18 has normally arisen in cases concerning religious beliefs rather than non-religious beliefs. However, a breach of article 18(1) was found in Kang v Republic of Korea (878/99), entailed in the author’s subjection to the State’s ‘ideology conversion system’, under which inducements and punishments were put in place in order to encourage certain prisoners to alter their political opinions [18.07]. Furthermore, the cases on conscientious objection have not necessarily concerned religious beliefs.

3

See commentary at [17.28]ff. See further discussion of Prince v South Africa at [17.34] below. 5 (2004) UN doc CCPR/CO/81/BEL, para 26; see also Concluding Observations on Switzerland (2009) UN doc CCPR/C/CHE/CO/3, para 8, regarding the campaign in that State against minarets. 6 7 However, see [17.25]. (2011) UN doc CCPR/C/SRB/CO/2. 8 9 See [18.84] for extracts from this case. At para 11.7. 4

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[17.11] Freedom of religion does not seem to include the right not to have one’s religion disparaged. In Goyet v France (1746/08), the author was a member of a Buddhist group called Soka Gokkai. Soka Gokkai was described as a ‘cult’ in a number of parliamentary reports which, she claimed, breached article 18 as it triggered hostility towards her. The claim was ruled to be inadmissible as Goyet had not demonstrated how the ‘cult’ reference violated her personal rights.10 A similar complaint from a member of the Plymouth Brethren was dismissed in Picq v France (1632/07). In neither case were the disparaging comments so harsh as to amount to a breach of the hate speech provision in article 20.11 Finally, it may be noted that religious organizations per se cannot bring a complaint under article 18 [3.22].

Freedom to Have or Adopt a Religion or Belief [17.12]

GENERAL COMMENT 22

¶5. The Committee observes that the freedom to ‘have or to adopt’ a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one’s current religion or belief with another or to adopt atheistic views, as well as the right to retain one’s religion or belief. Article 18(2) bars coercion that would impair the right to have or adopt a religion or belief, including the use or threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert. Policies or practices having the same intention or effect, such as, for example, those restricting access to education, medical care, employment or the rights guaranteed by article 25 and other provisions of the Covenant, are similarly inconsistent with article 18(2). The same protection is enjoyed by holders of all beliefs of a non-religious nature.

The HRC has stressed in numerous General Comments that one has an absolute right to change one’s religion,12 contrary to the policies of a number of Islamic States.13 For example, Sudan was informed that the criminalization of apostasy was incompatible with article 18.14 [17.13] The right to have a religion of belief is an absolute right, as is discussed in the most recent cases on conscientious objection, particularly Atasoy and Sarkut v Turkey (1853–54/08) [17.45].

10

At para 6.3. Neither case actually addressed art 20. 12 See eg Concluding Observations on Jordan (1994) UN doc CCPR/C/79/Add.53, para 10; Islamic Republic of Iran (1993) UN doc CCPR/C/79/Add.25, para 16; Nepal (1994) UN doc CCPR/C/79/ Add.42, para 11; Libyan Arab Jamahiriya (1994) UN doc CCPR/C79/Add.45, para 13; Morocco (1994) UN doc CCPR/C/79/Add.44, para 14; Yemen (2002) UN doc CCPR/CO/75/YEM, para 20. 13 See also [1.131]; Concluding Observations on Morocco (2004) UN doc CCPR/CO/82/MAR, para 21; Yemen (2005) UN doc CCPR/CO/84/YEM, para 18; Algeria (2007) UN doc CCPR/C/DZA/ CO/3, para 23. 14 Concluding Observations on Sudan (2007) UN doc CCPR/C/SDN/CO/3, para 26. 11

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Manifesting Religion or Belief [17.14]

GENERAL COMMENT 22

¶4. The freedom to manifest religion or belief may be exercised ‘either individually or in community with others and in public or private’. The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings,15 participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.

[17.15] Manifestation of a religion may be termed the ‘active’ component of one’s religious freedom, as opposed to the ‘passive’ component, which consists of mere adherence to certain beliefs.16 ‘Manifestation’ of religion or belief includes worship, teaching of the particular beliefs, and observance of specified canons of conduct or religious rituals.17 As such activities can interfere with the rights of others, or even pose a danger to society, the freedom to manifest religion or belief is not absolute. [17.16] A violation of article 18(1) was found in respect of limitations to the author’s ability to manifest his Islamic faith in prison in the following case: BOODOO v TRINIDAD and TOBAGO (721/96) ¶6.6. As to the author’s claim that he has been forbidden from wearing a beard and from worshipping at religious services, and that his prayer books were taken from him, the Committee reaffirms that the freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts and that the concept of worship extends to ritual and ceremonial acts giving expression to belief, as well as various practices integral to such acts. In the absence of any explanation from the State party concerning the author’s allegations . . . , the Committee concludes that there has been a violation of article 18 of the Covenant.

[17.17] In Hudoyberganova v Zzbekistan (931/00), the HRC considered that ‘the freedom to manifest one’s religion encompasses the right to wear clothes or attire in public which is in conformity with the individual’s faith or religion’.18 See eg Hudoyberganova v Uzbekistan (931/00) [17.19] and Singh v France (1876/09) [17.32]. Nowak, draws this distinction in his UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005), 413–18. 17 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 419–20. 18 At para 6.2. 15 16

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In Malakhovsky and Pikul v Belarus (1207/03), the HRC confirmed that the manifestation of religion includes activities such as invitations to foreign clerics and the establishment of monasteries and educational institutions.19

Prohibition of Coercion [17.18] Article 18(2) prohibits coercion which impairs one’s right to have or adopt a certain religion or belief. Membership as such of a religion is an absolute right, so one should suffer no detriment due to one’s adherence to a certain religion. In this respect, ‘coercion’ in article 18(2) means physical or indirect coercion.20 For example, in Concluding Observations on Morocco, the HRC has condemned limitations on inter-religious marriages.21 Regarding the Republic of Ireland, the HRC condemned the requirement that the President and judges take a religious oath before assuming office.22 [17.19]

HUDOYBERGANOVA v UZBEKISTAN (931/00)

The author claimed that she was expelled from a tertiary institute for wearing a hijab (a headscarf). Uzbeki law prohibited the wearing of religious attire in public, while Institute rules also prohibited such clothing. She claimed that this circumstance breached article 18. The HRC majority agreed: ¶6.2. The Committee has noted the author’s claim that her right to freedom of thought, conscience and religion was violated as she was excluded from University because she refused to remove the headscarf that she wore in accordance with her beliefs. The Committee considers that the freedom to manifest one’s religion encompasses the right to wear clothes or attire in public which is in conformity with the individual’s faith or religion. Furthermore, it considers that to prevent a person from wearing religious clothing in public or private may constitute a violation of article 18, paragraph 2, which prohibits any coercion that would impair the individual’s freedom to have or adopt a religion. As reflected in the Committee’s General Comment No. 22 (para.5), policies or practices that have the same intention or effect as direct coercion, such as those restricting access to education, are inconsistent with article 18, paragraph 2. . . . In the present case, the author’s exclusion took place on 15 March 1998, and was based on the provisions of the Institute’s new regulations. The Committee notes that the State party has not invoked any specific ground for which the restriction imposed on the author would in its view be necessary in the meaning of article 18, paragraph 3. Instead, the State party has sought to justify the expulsion of the author from University because of her refusal to comply with the ban. Neither the author nor the State party have specified what precise kind of attire the author wore and which was referred to as ‘hijab’ by both parties. In the particular circumstances of the present case, and without either prejudging the right of a State party to limit expressions of religion and 19

At para 7.2. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 416. 21 (1994) UN doc CCPR/C/79/Add.44, para 14. 22 (1994) UN doc CCPR/C/79/Add.21, para 15. The criticism was repeated (with regard to judges) in 2000 at (2000) UN doc A/55/40, paras 422–51, para 29(b), and in 2008 at (2008) UN doc CCPR/C/ IRL/CO/3, para 21. 20

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belief in the context of article 18 of the Covenant and duly taking into account the specifics of the context, or prejudging the right of academic institutions to adopt specific regulations relating to their own functioning, the Committee is led to conclude, in the absence of any justification provided by the State party, that there has been a violation of article 18, paragraph 2.

[17.20] In Concluding Observations on France,23 the HRC has stated: ¶23. The Committee is concerned that both elementary and high school students are barred by Act No. 2004/228 of 15 March 2004 from attending the public schools if they are wearing so-called ‘conspicuous’ religious symbols. The State party has made only limited provisions—through distance or computer-based learning—for students who feel that, as a matter of conscience and faith, they must wear a head covering such as a skullcap (or kippah), a headscarf (or hijab), or a turban. Thus, observant Jewish, Muslim, and Sikh students may be excluded from attending school in company with other French children. The Committee notes that respect for a public culture of laïcité would not seem to require forbidding wearing such common religious symbols (arts. 18 and 26).

[17.21] Nowak argues that article 18(1) and (2) requires States to prevent private coercion of another to have or adopt a religion, belief, conscience, or opinion.24 Nowak’s contention is correct, as ICCPR rights have been interpreted to have ‘horizontal effect’.25 The following cases address possible ‘coercion’ in the private sphere. [17.22] SISTER IMMACULATE JOSEPH v SRI LANKA (1249/04) This case concerned proselytism, which can be argued to coerce people into accepting the proselytiser’s religion if it goes too far. The author was a Teaching Sister of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka (the Order). In July 2003, the Order lodged an application for incorporation under Sri Lankan law. It was refused incorporation after a private citizen challenged its application in the Supreme Court under Sri Lankan law, and that challenge was upheld so incorporation was denied to the Order. One reason for this decision was that the Order’s propagation of its religion, that is its proselytising activities through its charitable work, was found to place vulnerable people under undue pressure.26 The author claimed that the running of the court case, and the final decision, breached a number of rights including article 18. The HRC agreed: ¶7.3 In the present case, the State party has not sought to justify the infringement of rights other than by reliance on the reasons set out in the decision of the Supreme Court itself. The decision considered that the Order’s activities would, through the provision of material and other benefits to vulnerable people, coercively or otherwise improperly propagate religion. The decision failed to provide any evidentiary or factual foundation for this assessment, or reconcile this assessment with the analogous benefits and services provided by other 23

(2008) UN doc CCPR/C/FRA/CO/4. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 412–13. 25 See generally [1.114] and [4.19]ff. 26 Another reason for the decision was that the Order’s application was found to challenge the State’s duty to protect Buddhism [17.40]. 24

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religious bodies that had been incorporated. . . . The Committee notes moreover that the international case law cited by the decision does not support its conclusions. . . . In the Committee’s view, the grounds advanced in the present case therefore were insufficient to demonstrate, from the perspective of the Covenant, that the restrictions in question were necessary for one or more of the enumerated purposes. It follows that there has been a breach of article 18, paragraph 1, of the Covenant.

[17.23] In Concluding Observations on Uzbekistan, the HRC expressed concern over the fact that ‘proselytizing constitute[d] a criminal offence’.27 [17.24]

ARENZ and others v GERMANY (1138/02)

This case concerned the actions of a private body against the adherents of a particular religion, which arguably constituted coercion of people to abandon that religion. The applicants were members of the Church of Scientology. They were expelled from Germany’s Christian Democratic Party (CDP), one of the two major political parties, after the CDP had passed a resolution stating that Scientology was incompatible with membership. The authors challenged their expulsion without success before the German courts. Those courts found that the CDP’s actions were not arbitrary, so they upheld the principle of the political party’s autonomy to control its own membership. The authors claimed before the HRC that the expulsions breached a number of rights, including articles 18 and 25 (the right to political participation) [22.10] of the ICCPR. Germany had argued that it was not responsible for the actions of a political party. The HRC disagreed, finding that Germany had an obligation to protect ‘the practices of all religions or beliefs from infringement and to ensure that political parties, in their internal management, respect[ed] the applicable provisions of article 25 of the Covenant’.28 That reasoning would apply to article 18 too. However, it went on to find the communication inadmissible: ¶8.6. . . . The issue before the Committee is whether the State party violated the authors’ rights under the Covenant in that its courts gave priority to the principle of party autonomy, over their wish to be members in a political party that did not accept them due to their membership in another organization of ideological nature. The Committee recalls its constant jurisprudence that it is not a fourth instance competent to reevaluate findings of fact or reevaluate the application of domestic legislation, unless it can be ascertained that the proceedings before the domestic courts were arbitrary or amounted to a denial of justice. The Committee considers that the authors have failed to substantiate, for purposes of admissibility, that the conduct of the courts of the State party would have amounted to arbitrariness or a denial of justice. Therefore, the communication is inadmissible under article 2 of the Optional Protocol.

Therefore, the claim failed due to an application of the HRC’s ‘fourth instance court’ doctrine [1.53]. As the German court’s decision was not manifestly arbitrary, it refused to ‘overrule’ that decision. The Germany courts had effectively upheld the political party’s right to determine its own membership (arguably, a 27

(2005) UN doc CCPR/CO/83/UZB, para 22.

28

At para 8.5.

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freedom not to associate of that party) over the religious and other human rights of the authors. Implicitly, the CDP was found not to have acted in a way that impermissibly attempted to coerce Scientologists to abandon their religion. [17.25] The HRC’s decision in Arenz implies that States have considerable leeway in implementing their obligations to regulate private bodies [1.110].29 Alternatively, it implies that it is reasonable, or at least it is not manifestly unreasonable, for major political parties to expel people on religious grounds. Here, the relevant religion was Scientology. One has to wonder whether the same decision would have been made if the relevant religion had been one of the major recognized world religions such as Christianity, Judaism, Islam, or Buddhism, or if the authors had been expelled on the basis of their race. In this respect, it is notable that the HRC in para 8.6 arguably implied that Scientology is an ideology rather than a religion. [17.26]

LMR v ARGENTINA (1608/07)

This case concerned a complaint regarding the State’s interference with a woman seeking an abortion. The case also raised the issue of the possible coercion of a person by religious groups to refrain from a particular course of action. A mentally disabled young woman had been raped and had sought an abortion. She actually had such a right under Argentine law. However, a lower court injunction, as well as the actions of other authorities including a hospital, meant that a legal abortion did not take place. An illegal abortion was ultimately performed. One complaint was the following: ¶3.10. There was also a violation of article 18 of the Covenant. Catholic groups made direct, public and continual threats of various kinds and subjected the family to pressure and coercion without the authorities stepping in to protect L.M.R.’s rights. In objecting to the procedure on the grounds of collective or institutional conscience, the Gynaecology Department of San Martín Hospital also failed to respect the right to freedom of religion and belief.

The HRC found this part of the complaint inadmissible. ¶8.7. The author maintains that her daughter was subject to a violation of article 18 as a result of State inaction in the face of pressure and threats from Catholic groups and the hospital doctors’ conscientious objection. The State party denies that this article has been violated, on the grounds that the activities of specific groups are unconnected to the actions of its officials, and that the hospital’s refusal to perform the procedure was guided by medical considerations. In the circumstances, the Committee considers that the author has not adequately substantiated her complaint for purposes of admissibility and that the complaint must therefore be declared inadmissible under article 2 of the Optional Protocol.

It is arguable that this claim was effectively one of freedom from religion rather than freedom of religion. The actions of the Catholic pressure groups and the alleged refusal of the doctors to perform the operation, presumably inspired by their own 29 In comparison, note that the HRC expressed concern to Germany over the disqualification of some people from its public service on religious grounds in Concluding Observations on Germany (2004) UN doc CCPR/CO/80/DEU, para 19. See also Concluding Observations on Germany (1996) UN doc CCPR/C/79/Add.73, para 16.

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religious or conscientious views against abortion, were said to obstruct the victim in attaining an abortion. They did not obstruct her in enjoying freedom of religion or belief, so the invocation of Article 18 seems legally incorrect. Perhaps the claim regarding the actions of these pressure groups, as well as the hospital doctors, should have been raised with regard to a right which substantively grounds a right to an abortion, such as article 6 [8.92], 7 [9.59], or 17 [16.55]. Whilst such a claim may have been more legally correct, it probably also would have failed on the facts, as it was not established that the pressure groups or the doctors’ consciences played a major role in the victim’s failure to attain an abortion. [17.27] In General Comment 28, on Equality of Right between Men and Women, the HRC stated in regard to the religious rights under article 18, that women ‘must not be constrained by, inter alia, rules requiring permission from third parties, or by interference from fathers, husbands, brothers or others’.30

Limitations on the Freedom to Manifest One’s Religion or Belief [17.28]

GENERAL COMMENT 22

¶8. Article 18(3) permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. The freedom from coercion to have or to adopt a religion or belief and the liberty of parents and guardians to ensure religious and moral education cannot be restricted. In interpreting the scope of permissible limitation clauses, States parties should proceed from the need to protect the rights guaranteed under the Covenant, including the right to equality and non-discrimination on all grounds specified in articles 2, 3 and 26. Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18. The Committee observes that paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner. . . . Persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint. States parties’ reports should provide information on the full scope and effects of limitations under article 18(3), both as a matter of law and of their application in specific circumstances.

[17.29] The freedom to manifest one’s religion may be legitimately subject to certain limitations, prescribed in article 18(3). First, the limitations must be ‘prescribed by law’. This means the measures must be delineated in accessible legal instruments or decisions.31 The term has not been extensively discussed by the

30

At para 21.

31

See, in this regard, [1.83], [11.91]ff, [16.06]ff, and [18.32].

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HRC with regard to article 18. However, HRC jurisprudence regarding the same language in the context of other ICCPR rights gives a good indication of how the term would be interpreted in the article 18 context.32 Secondly, the limitations must be designed to achieve one of the purposes enumerated in the provision: namely, ‘public safety, order, health or morals or the fundamental rights and freedoms of others’. Article 18 jurisprudence has clarified only some of these limitations. The HRC could again be expected to interpret the other terms similarly to the way in which those terms have been interpreted in the context of other ICCPR rights.33 Finally, the limiting measures must be ‘necessary’ to achieve the relevant purpose. This means that the law should be ‘proportionate to the specific need upon which it is predicated’, according to paragraph 8 of General Comment 22. [17.30] The HRC points out, in paragraph 8 of the General Comment, the absence of ‘national security’ as an express limitation in article 18(3). National security is listed as a permissible limiting objective to other ICCPR rights, such as freedom of expression (article 19), assembly (article 21), and association (article 22). However, many ‘national security’ measures could be perhaps justified as limitations designed to achieve ‘public order’. PUBLIC SAFETY AND HEALTH

[17.31]

SINGH BHINDER v CANADA (208/86)

The author was a Sikh, so he was obliged by his religion to wear a turban. On the other hand, Canadian legislation required that he, as a federal worker, wear safety headgear (a ‘hard hat’) at work, to protect him from injury and electric shock. The author argued the following: ¶3. The author claims that his right to manifest his religious beliefs under article 18, paragraph 1, of the Covenant has been restricted by virtue of the enforcement of the hard hat regulations, and that this limitation does not meet the requirements of article 18, paragraph 3. In particular, he argues that the limitation was not necessary to protect public safety, since any safety risk ensuing from his refusal to wear safety headgear was confined to himself.

The HRC nevertheless found against the author on the merits: ¶6.2. Whether one approaches the issue from the perspective of article 18 or article 26, in the view of the Committee the same conclusion must be reached. If the requirement that a hard hat be worn is regarded as raising issues under article 18, then it is a limitation that is justified by reference to the grounds laid down in article 18, paragraph 3. If the requirement that a hard hat be worn is seen as a discrimination de facto against persons of the Sikh religion under article 26, then, applying criteria now well established in the jurisprudence of the Committee, the legislation requiring that workers in federal employment be protected

32 See ‘Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’ (1985) 7 HRQ 3, which indicates that all limitation clauses in the ICCPR are to be interpreted in the same way with regard to each right. 33 See [12.27]ff and [18.30]ff.

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from injury and electric shock by the wearing of hard hats is to be regarded as reasonable and directed towards objective purposes that are compatible with the Covenant [23.42].

It is a shame that the HRC did not spell out exactly how the limitation conformed to article 18(3). Though the hard hat measure arguably protected Singh’s personal health and safety, the Committee did not address how his non-compliance with the measure could threaten public safety and health. [17.32]

SINGH v FRANCE (1876/00)

The author was a Sikh, who claimed that the requirement that he remove his turban for the purposes of an identity photo was a breach of article 18. As he refused to have his photo taken bare-headed, he was refused a residence card and was unable to access a range of benefits. France justified the impugned requirement in the following way: ¶5.3. . . . The requirement to provide two identity photographs showing applicants bareheaded is designed to minimize the risk of fraud or falsification of residence permits and is justified in order to protect public order and public safety. It also considers that this regulation spares the administrative authorities the difficult task of trying to assess to what extent a specific type of headgear covers the face and facilitates or impedes the identification of an individual, thus ensuring security and equality before the law. ¶5.4. While acknowledging that the requirement to provide identity photographs in which people appear bareheaded may be an imposition for some individuals, the State party submits that such an imposition is of a limited nature. People who are accustomed to wearing a turban are not compelled to stop wearing it on a permanent or regular basis, but only on a very occasional basis in order for a photograph to be taken. It also submits that any resulting discomfort for the author should be balanced against the public interest in combating the falsification of residence permits. Moreover, the fact that some States have adopted different measures in this area and the fact that the author was previously authorized to appear with a turban in the photograph affixed to his residence permit cannot be used as a justification. In conclusion, the State party maintains that the author has not been the victim of a violation of article 18 of the Covenant, since the domestic legislation at issue is justified by the need to protect public safety and order and since the means used are proportionate to the aims.

The HRC determined that there had been a breach of Article 18: ¶8.4. . . . The Committee notes that there is no dispute as to the fact that the law requires people to appear bareheaded in their identity photographs and that the purpose of this requirement is to protect public safety and order. It is therefore the responsibility of the Committee to decide whether that limitation is necessary and proportionate to the end that is sought. The Committee recognizes the State party’s need to ensure and verify, for the purposes of public safety and order, that the person appearing in the photograph on a residence permit is in fact the rightful holder of that document. It observes, however, that the State party has not explained why the wearing of a Sikh turban covering the top of the head and a portion of the forehead but leaving the rest of the face clearly visible would make it more difficult to identify the author than if he were to appear bareheaded, since he wears his turban at all times. Nor has the State party explained how, specifically, identity photographs in which people appear bareheaded help to avert the risk of fraud or falsification of residence permits. Consequently, the Committee is of the view that the State party has not demonstrated that the limitation placed on the author is necessary within the meaning of article 18, paragraph 3, of

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the Covenant. It also observes that, even if the obligation to remove the turban for the identity photograph might be described as a one-time requirement, it would potentially interfere with the author’s freedom of religion on a continuing basis because he would always appear without his religious head covering in the identity photograph and could therefore be compelled to remove his turban during identity checks. The Committee therefore concludes that the regulation requiring persons to appear bareheaded in the identity photographs used on their residence permits is a limitation that infringes the author’s freedom of religion and in this case constitutes a violation of article 18 of the Covenant.

[17.33]

MALAKHOVSKY and PIKUL v BELARUS (1207/03)

This case concerned Belarus’s refusal to ‘register’ the Minsk Vaishnava community as a ‘religious association’ under its law. As a consequence, the community was unable to carry on certain activities, such as establish monasteries, congregations, missions, spiritual education institutions or invite foreign clerics to visit Belarus. Belarus explained that the organization lacked a valid legal address as follows. ¶5.6. The State party explains that the registration of the association was impossible at this particular address, because it would have resulted in an increase in the frequency and attendance of religious events at the premises, which in turn would have increased health hazards. The founders of the association were requested to remedy the health and safety violations, and were invited to study the possibility of moving their proposed statutory address to another location.

The HRC found that Belarus’s actions violated article 18. ¶7.5. The Committee considers that the precondition, whereby a religious association’s right to carry out its religious activities is predicated on it having the use of premises which satisfy relevant public health and safety standards, is a limitation which is necessary for public safety, and proportionate to this need. ¶7.6. The Committee notes, however, that the State party has not advanced any argument as to why it is necessary for the purposes of article 18, paragraph 3, for a religious association, in order to be registered, to have an approved legal address which not only meets the standards required for the administrative seat of the association but also those necessary for premises used for purposes of religious ceremonies, rituals, and other group undertakings. Appropriate premises for such use could be obtained subsequent to registration. . . . Also taking into account the consequences of refusal of registration, namely the impossibility of carrying out such activities as establishing educational institutions and inviting foreign religious dignitaries to visit the country, the Committee concludes that the refusal to register amounts to a limitation of the authors’ right to manifest their religion under article 18, paragraph 1 that is disproportionate and so does not meet the requirements of article 18, paragraph 3. The authors’ rights under article 18, paragraph 1 have therefore been violated.34

[17.34]

PRINCE v SOUTH AFRICA (1474/06)

As noted above [17.05], this case concerned a Rastafarian’s complaint over the State’s ban on cannabis. Ultimately, the HRC found that no violation of article 18 had arisen: 34

See also Concluding Observations on Uzbekistan (2005) UN doc CCPR/CO/83/UZB, para 22.

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¶7.3. The Committee observes that the prohibition of the possession and use of cannabis, which constitutes the limitation on the author’s freedom to manifest his religion, is prescribed by the law (the Drugs and Drug Trafficking Act 140 of 1992). It further notes the State party’s conclusion that the law in question was designed to protect public safety, order, health, morals or the fundamental rights and freedoms of others, based on the harmful effects of cannabis, and that an exemption allowing a system of importation, transportation and distribution to Rastafarians may constitute a threat to the public at large, were any of the cannabis enter into general circulation. Under these circumstances the Committee cannot conclude that the prohibition of the possession and use of drugs, without any exemption for specific religious groups, is not proportionate and necessary to achieve this purpose. The Committee finds that the failure of the State party to grant Rastafarians an exemption to its general prohibition of possession and use of cannabis is, in the circumstances of the present case, justified under article 18, paragraph 3, and accordingly finds that the facts of the case do not disclose a violation of article 18, paragraph 1. PUBLIC ORDER

[17.35] In Singh v France (1876/00), discussed above at [17.32], France defended its impugned measure on the basis of both public order and public safety. It failed on both counts. [17.36]

COERIEL and AURIK v THE NETHERLANDS (453/91)

The authors had adopted the Hindu religion, and were studying to become Hindu priests in India. They requested the Dutch Minister of Justice to permit them to change their names, as it was compulsory to do so in order to become Hindu priests. The Minister refused, on the ground that their cases did not meet the requirements of Dutch laws regulating the change of surname. ¶3. The authors claim that the refusal of the Dutch authorities to have their current surnames changed prevents them from furthering their studies for the Hindu priesthood and therefore violates article 18 of the Covenant. They also claim that said refusal constitutes unlawful or arbitrary interference with their privacy.

Although the HRC majority found in favour of the authors regarding their article 17 privacy rights [16.13], it rejected the claim brought under article 18: ¶6.1. During its 48th session, the Committee considered the admissibility of the communication. With regard to the authors’ claim under article 18 of the Covenant, the Committee considered that the regulation of surnames and the change thereof was eminently a matter of public order and restrictions were therefore permissible under paragraph 3 of article 18. The Committee, moreover, considered that the State party could not be held accountable for restrictions placed upon the exercise of religious offices by religious leaders in another country. This aspect of the communication was therefore declared inadmissible.

The HRC’s view that State restrictions on one’s ability to change a surname were permissible for public order reasons is perhaps reasonable, as frequent surname changes could cause administrative confusion. However, the HRC’s article 18 decision seemed more influenced by the fact that the relevant religious rules were

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35

imposed by religious leaders outside the country. Such a principle seriously limits the effectiveness of article 18, as religious requirements are often promulgated from outside a State.36 For example, Catholic canons of conduct are prescribed by religious authorities in the Vatican. It cannot be that restrictions on Catholic rituals by a State other than the Vatican could be justified simply because the relevant religious rules are imposed by Vatican leaders. It is hoped that this Coeriel principle is not followed in the future. PUBLIC MORALS

[17.37]

GENERAL COMMENT 22

¶8. . . . The Committee observes that the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition. . . .

Therefore, ‘public morals’ measures should reflect a pluralistic view of society, rather than a single religious culture.37

Establishment of a Religion [17.38]

GENERAL COMMENT 22

¶9. The fact that a religion is recognised as a state religion or that it is established as official or traditional or that its followers comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including articles 18 and 27, nor in any discrimination against adherents to other religions or non-believers. In particular, certain measures discriminating against the latter, such as measures restricting eligibility for government service to members of the predominant religion or giving economic privileges to them or imposing special restrictions on the practice of other faiths, are not in accordance with the prohibition of discrimination based on religion or belief and the guarantee of equal protection under article 26. The measures contemplated by article 20, paragraph 2 of the Covenant constitute important safeguards against infringement of the rights of religious minorities and of other religious groups to exercise the rights guaranteed by articles 18 and 27, and against acts of violence or persecution directed towards those groups. The Committee wishes to be informed of measures taken by States parties concerned to protect the practices of all religions or beliefs from infringement and to protect their followers from discrimination. Similarly, information as to respect for the rights of religious minorities under article 27 is necessary for the Committee to assess the extent to which the right to freedom of thought, conscience, religion and belief has been implemented by States parties. States 35 Indeed, this may have been the true reason behind the art 18 decision, given that the same restrictions were found to be ‘arbitrary’ interferences with privacy contrary to art 17, despite public order arguments. 36 F Martin et al, International Human Rights Law and Practice (Kluwer Law International, 1997), 153. 37 See Toonen v Australia (488/92) [16.50]. See also, however, Delgado Páez v Colombia (195/85), discussed at [18.70].

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parties concerned should also include in their reports information relating to practices considered by their laws and jurisprudence to be punishable as blasphemous.38 ¶10. If a set of beliefs is treated as official ideology in constitutions, statutes, proclamations of ruling parties, etc., or in actual practice, this shall not result in any impairment of the freedoms under article 18 or any other rights recognised under the Covenant nor in any discrimination against persons who do not accept the official ideology or who oppose it.

[17.39] Thus, the official ‘establishment’ of a State religion is compatible with article 18, so long as it does not lead to discrimination against those who have not adopted that religion.39 In Concluding Observations on Argentina, the HRC stated:40 ¶16. The Committee reiterates its concern that the preferential treatment, including financial subsidies, accorded to the Catholic Church over other religious denominations constitutes religious discrimination under article 26 of the Covenant.

In Concluding Observations on Israel, the HRC stated:41 ¶28. The Committee is concerned at the preference given to the Jewish religion in the allocation of funding for religious bodies, to the detriment of Muslims, Christians, Druze and other religious groups. The Committee recommends that regulations and criteria for funding be published and applied to all religious groups on an equal basis.

In Concluding Observations on Denmark, the HRC has stated:42 ¶12. The Committee takes note of the explanation provided by the delegation that the special position granted to the Evangelical Lutheran Church as the ‘Established Church of Denmark’ (section 4 of the Constitutional Act of Denmark of 5 June 1953) is based on historical and social factors, as well as on the fact that the vast majority of the population belongs to this church. Nevertheless, the Committee notes with concern that the direct financial support that the Evangelical Lutheran Church receives from the State, and the administrative functions entrusted to it, such as civil status registration and the management of burial grounds, could lead to discrimination against other religious groups (arts. 2, 18 and 26).

[17.40] In Sister Immaculate Joseph v Sri Lanka (1249/04), discussed above at [17.22], one of the reasons given for the success of the constitutional challenge to the Order’s incorporation was that such incorporation would be inconsistent with the State’s duty to protect the Buddhist faith. In its finding of a violation, the HRC found that there was no evidence that the Order’s incorporation would have this effect.43 The HRC did not challenge the idea that the undermining of Buddhism, the State religion, could constitute a valid reason for refusing incorporation to a non-Buddhist religious organization.

38

See also [18.67]. See also Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 415. 40 UN doc CCPR/CO/70/ARG; see also Concluding Observations on Chile (1999) UN doc CCPR/ C/79/Add.104, para 24. 41 (1999) UN doc CCPR/C/79/Add.93. See also Concluding Observations on Liechtenstein (2004) UN doc CCPR/CO/81/LIE, para 13; Greece (2005) UN doc CCPR/CO/83/GRC, para 14. 42 43 (2008) UN doc CCPR/C/DNK/CO/5. At para 7.3. 39

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Right of Conscientious Objection [17.41] Numerous early cases indicated that article 18 does not guarantee a right of conscientious objection, as in a right to freedom from compulsory military service on the basis of one’s conscientious objection to military force. LTK v FINLAND (185/84) ¶1. The author of the communication (undated), received on 18 October 1984, is L. T. K., a Finnish citizen residing in Finland. He claims to be a victim of a breach by Finland of articles 18 and 19 of the International Covenant on Civil and Political Rights, stating that his status as conscientious objector to military service has not been recognised in Finland and that he has been criminally prosecuted because of his refusal to perform military service.

The HRC found the complaint inadmissible in the following terms: ¶5.2. The Human Rights Committee observes in this connection that, according to the author’s own account he was not prosecuted and sentenced because of his beliefs or opinions as such, but because he refused to perform military service. The Covenant does not provide for the right to conscientious objection; neither article 18 nor article 19 of the Covenant, especially taking into account paragraph 3(c)(ii) of article 8, can be construed as implying that right.44 The author does not claim that there were any procedural defects in the judicial proceedings against him, which themselves could have constituted a violation of any of the provisions of the Covenant, or that he was sentenced contrary to law. ¶6. The Human Rights Committee, after careful examination of the communication, concludes that the facts which have been submitted by the author in substantiation of his claim do not raise an issue under any of the provisions of the International Covenant on Civil and Political Rights. Accordingly, the claim is incompatible with the provisions of the Covenant. ¶7. The Human Rights Committee therefore decides: The communication is inadmissible.

[17.42] This early denial of a right of conscientious objection to military service has been reversed, as signalled in General Comment 22. GENERAL COMMENT 22 ¶11. Many individuals have claimed the right to refuse to perform military service (conscientious objection) on the basis that such right derives from their freedoms under article 18. In response to such claims, a growing number of States have in their laws exempted from compulsory military service citizens who genuinely hold religious or other beliefs that forbid the performance of military service and replaced it with alternative national service. The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief. When this right is recognised by law or practice, there shall be no 44 Article 8(3)(a) prohibits forced or compulsory labour. However, art 8(3)(c)(ii) states that para (a) does not preclude compulsory military service or alternative service ‘in countries where conscientious objection is recognised’. See generally [10.05].

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differentiation among conscientious objectors on the basis of the nature of their particular beliefs; likewise, there shall be no discrimination against conscientious objectors because they have failed to perform military service. The Committee invites States parties to report on the conditions under which persons can be exempted from military service on the basis of their rights under article 18 and on the nature and length of alternative national service.

[17.43]

YOON and CHOI v REPUBLIC OF KOREA (1321–22/04)

Both authors were imprisoned for their refusal to perform compulsory military service on the basis of their conscientious objection. They claimed that South Korea’s failure to provide alternative service regimes for conscientious objectors breached article 18. South Korea justified its law thus: ¶4.3. Under the specific security circumstances facing a hostile Democratic People’s Republic of Korea (DPRK), the State party, as the world’s sole divided nation, adopted the Universal Conscription System, which recognises all citizens’ obligation to military service. Thus, the equality principle of military service duty and responsibility carries more meaning in the State party than in any other country. Considering the strong social demand and anticipation for the equality of the performance of military service duty, allowing exceptions to military service duty may prevent social unification, greatly harming national security by eroding the basis of the national military service system—the Universal Conscription System—especially considering the social tendency of attempting to evade military service duty by using any and every means. ¶4.4 The State party argues that a nation’s military service system is directly linked to issues of national security, and is a matter of legislative discretion vested in the lawmakers for the creation of the national army with the maximum capabilities for national defence, after considering a nation’s geopolitical stance, internal and external security conditions, economic and social state and national sentiment, along with several other factors. ¶4.5. The State party contends that given its security conditions, the demand for equality in military service and various concomitant restricting elements in adopting an alternative service system, it is difficult to argue that it has reached the stage of improved security conditions that would allow for limitations to military service, as well as the formation of national consensus. . . . ¶6.3. The State party argues that while it is true that the situation on the Korean peninsula has changed since the appearance of a new concept of national defence and modern warfare, as as well as a military power gap due to the disparities in economic power between North and South, military manpower remains the main form of defence. The prospect of manpower shortages caused by falling birth rates must also be taken into account. Punishing conscientious objectors, despite their small overall number, discourages evasion of military service. The current system may easily crumble if alternative service systems were adopted. In light of past experiences of irregularities and social tendencies to evade military service, it is difficult to assume alternatives would prevent attempts to evade military service. Further, accepting conscientious objection while military manpower remains the main force of national defence may lead to the misuse of conscientious objection as a legal device to evade military service, greatly harming national security by demolishing the conscription basis of the system

The HRC found that South Korea had breached article 18.

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¶8.4. The Committee notes that under the laws of the State party there is no procedure for recognition of conscientious objections against military service. The State party argues that this restriction is necessary for public safety, in order to maintain its national defensive capacities and to preserve social cohesion. The Committee takes note of the State party’s argument on the particular context of its national security, as well as of its intention to act on the national action plan for conscientious objection devised by the National Human Rights Commission. . . . The Committee also notes, in relation to relevant State practice, that an increasing number of those States parties to the Covenant which have retained compulsory military service have introduced alternatives to compulsory military service, and considers that the State party has failed to show what special disadvantage would be involved for it if the rights of the authors’ under article 18 would be fully respected. As to the issue of social cohesion and equitability, the Committee considers that respect on the part of the State for conscientious beliefs and manifestations thereof is itself an important factor in ensuring cohesive and stable pluralism in society. It likewise observes that it is in principle possible, and in practice common, to conceive alternatives to compulsory military service that do not erode the basis of the principle of universal conscription but render equivalent social good and make equivalent demands on the individual, eliminating unfair disparities between those engaged in compulsory military service and those in alternative service. The Committee, therefore, considers that the State party has not demonstrated that in the present case the restriction in question is necessary, within the meaning of article 18, paragraph 3, of the Covenant.

The Yoon and Choi decision was followed in Jung et al v Republic of Korea (1593–1603/07) and other cases, as detailed directly below. Therefore, as foreshadowed in General Comment 22 [17.42] and confirmed in a number of Concluding Observations,45 the HRC has effectively overturned LTK v Netherlands (185/84). Compulsory military service, with no provision of alternative service for conscientious objectors, is a breach of article 18. [17.44] The basis for the right of conscientious objection in Yoon and Choi was that it constituted a ‘manifestation’ of the right to conscience or religion, the limitation of which was not justified in article 18(3). However, a stronger basis for the right was found in the following case. JEONG et al v REPUBLIC OF KOREA (1642–1741/07) This case again concerned South Korea’s failure to permit alternatives to compulsory military service. A violation was again found, this time in the following terms: ¶7.3. The Committee recalls its General Comment No 22 where it has considered that the fundamental character of the freedoms enshrined in article 18, paragraph 1 is reflected in the fact that this provision cannot be derogated from, even in time of public emergency, as stated in article 4, paragraph 2 of the Covenant. Although the Covenant does not explicitly

45 See eg Concluding Observations on Spain (1996) UN doc CCPR/C/79/Add.61, para 15; Belarus (1997) UN doc CCPR/C/79/Add.86, para 16; Mexico (1999) UN doc CCPR/C/79/Add.109, para 20; Venezuela (2001) UN doc CCPR/CO/71/VEN, para 26; Vietnam (2002) UN doc CCPR/CO/75/VNM, para 17; Finland (2004) UN doc CCPR/CO/82/FIN, para 14; Ukraine (2006) UN doc CCPR/C/UKR/ CO/6, para 12; Israel (2010) UN doc CCPR/C/ISR/CO/3, para 19. See also Westerman v Netherlands (682/96).

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refer to a right of conscientious objection, the Committee believes that such a right derives from article 18, inasmuch as the obligation to be involved in the use of lethal force may seriously conflict with the freedom of conscience. The right to conscientious objection to military service inheres in the right to freedom of thought, conscience and religion. It entitles any individual to an exemption from compulsory military service if this cannot be reconciled with that individual’s religion or beliefs. The right must not be impaired by coercion. A State may, if it wishes, compel the objector to undertake a civilian alternative to military service, outside the military sphere and not under military command. The alternative service must not be of a punitive nature. It must be a real service to the community and compatible with respect for human rights. ¶7.4. In the present cases, the Committee considers that the authors’ refusal to be drafted for compulsory military service derives from their religious beliefs which, it is uncontested, were genuinely held and that the authors’ subsequent conviction and sentence amounted to an infringement of their freedom of conscience, in breach of article 18, paragraph 1 of the Covenant. Repression of the refusal to be drafted for compulsory military service, exercised against persons whose conscience or religion prohibit the use of arms, is incompatible with article 18, paragraph 1 of the Covenant.

Therefore, the violation is described as an interference with the absolute right of freedom of conscience, as opposed to an interference with the right to manifest one’s conscientious beliefs, a right which can be limited under article 18(3). [17.45] The Jeong justification for the right of conscientious objection was endorsed by the HRC majority in the following case. The minority discussed the ramifications of the new approach. ATASOY and SARTUK v TURKEY (1853–54/08) This case concerned Turkey’s prosecution of two conscientious objectors under its laws, which failed to permit any alternative to compulsory military service. The majority found a violation in similar terms to Jeong: ¶10.4. . . . The Committee reiterates that the right to conscientious objection to military service is inherent to the right to freedom of thought, conscience and religion. It entitles any individual to an exemption from compulsory military service if the latter cannot be reconciled with the individual’s religion or beliefs. The right must not be impaired by coercion. A State party may, if it wishes, compel the objector to undertake a civilian alternative to military service, outside of the military sphere and not under military command. The alternative service must not be of a punitive nature, but must rather be a real service to the community and compatible with respect for human rights. ¶10.5. In the present cases, the Committee considers that the authors’ refusal to be drafted for compulsory military service derives from their religious beliefs, which have not been contested and which are genuinely held, and that the authors’ subsequent prosecution and sentences amount to an infringement of their freedom of conscience, in breach of article 18, paragraph 1, of the Covenant. The Committee recalls that repression of the refusal to be drafted for compulsory military service, exercised against persons whose conscience or religion prohibits the use of arms, is incompatible with article 18, paragraph 1, of the Covenant.

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[17.46] Messrs Neuman, O’Flaherty, Iwasawa, and Kälin submitted a concurring opinion. They noted and disapproved of the new approach to the issue of conscientious objection: Refusal to perform military service for reasons of conscience is among the ‘broad range of acts’ encompassed by the freedom to manifest religion or belief in worship, observance, practice and teaching. Such refusal involves not merely the right to hold a belief, but the right to manifest the belief by engaging in actions motivated by it. Article 18 of the Covenant does permit limitations on this freedom if the high standard of justification in paragraph 3 can be met. The majority’s Views in the present case do not provide any convincing reason for treating conscientious objection to military service as if it were an instance of the absolutely protected right to hold a belief. Nor does the majority clarify how conscientious objection to military service can be distinguished in this respect from other claims to exemption on religious grounds from legal obligations.

[17.47] In contrast, the approach of the majority was robustly supported in the concurring opinion of Sir Nigel Rodley, supported by Messrs Thelin and Flinterman (with whom Mr Salvioli agreed on this point): My understanding of the thinking behind this evolution is that freedom of thought, conscience and religion embraces the right not to manifest, as well as the right to manifest, one’s conscientiously held beliefs. Compulsory military service without possibility of alternative civilian service implies that a person may be put in a position in which he or she is deprived of the right to choose whether or not to manifest his or her conscientiously held beliefs by being under a legal obligation, either to break the law or to act against those beliefs within a context in which it may be necessary to deprive another human being of life [emphasis in original]. Of course, there are other situations in which one may be compelled to manifest one’s conscientiously held beliefs. For example, a compulsory military service system that makes provision for conscientious obje ction may require someone wishing to avail him/herself of that alternative service to declare the belief that entitles the person to opt for it. The distinction here is that the person is having to do it for the purpose of staying within the law and ipso facto avoiding being put in a position of being at risk of having to deprive another person of life. Claims for exemption from other legal obligations on grounds of religion or other conscientiously held belief may also arise and, as noted in the individual opinion of Mr Neuman and the colleagues joining him, conscientious objection needs to be distinguished from other such claims. For the purposes of the present case, the typical example would be conscientious objection to paying that part of one’s tax bill that is destined for a state party’s military capacity. In such a case, the Committee might answer that the distinction lies in the fact that the level of complicity in the involvement in the feared deprivation of life is one that is at least not self-evident. . . . Furthermore, there is a certain lack of reality in basing the violation on an analysis of article 18, paragraph 3. The implication of relying on that provision is that circumstances could be envisaged in which the community interests contemplated by the provision could override the individual’s conscientious objection to military service. This goes against all our experience of the phenomenon of conscientious objection. It is precisely in time of armed conflict, when the community interests in question are most likely to be under greatest

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threat, that the right to conscientious objection is most in need of protection, most likely to be invoked and most likely to fail to be respected in practice. Indeed, I do not for a moment believe that the Committee would ever use an analysis of article 18, paragraph 3, to prevent a person from successfully invoking conscientious objection as a defence against legal liability.

Hence, it appears that the HRC majority now accept that conscientious objection to military service is an absolute right, rather than one that might potentially be qualified under article 18(3). [17.48] As noted in the separate concurring opinions in Atasoy and Sarkut v Turkey (1853–54/08), conscientious objection arises in forms other than refusal to perform compulsory military service. Note the following comment regarding Zambia:46 ¶18. The requirement to sing the national anthem and salute the flag as a condition of attending a State school, despite conscientious objection, appear to be an unreasonable requirement and to be incompatible with articles 18 and 24 of the Covenant.

[17.49]

JP v CANADA (446/91)

¶2.1. The author is a member of the Society of Friends (Quakers). Because of her religious convictions, she has refused to participate in any way in Canada’s military efforts. Accordingly, she has refused to pay a certain percentage of her assessed taxes, equal to the amount of the Canadian federal budget earmarked for military appropriations. Taxes thus withheld have instead been deposited with the Peace Tax Fund of Conscience Canada, Inc., a non-governmental organisation.

The author claimed that the enforced payment of the withheld tax would breach her freedom of conscience under article 18. The HRC disagreed, and stated the following in finding the case inadmissible: ¶4.2. . . . Although article 18 of the Covenant certainly protects the right to hold, express and disseminate opinions and convictions, including conscientious objection to military activities and expenditures, the refusal to pay taxes on grounds of conscientious objection clearly falls outside the scope of protection of this article.

The JP decision has been upheld in J v K and CMG v K-S v Netherlands (483/91)47 and KV and CV v Germany (568/93).48

Right Regarding Religious and Moral Education—Article 18(4) [17.50]

GENERAL COMMENT 22

¶6. The Committee is of the view that article 18(4) permits public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and objective way. The liberty of parents or legal guardians to ensure that their children receive 46

47 (1996) UN doc CCPR/C/79/Add.62. At para 4.2. At para 4.3. These decisions have been criticized for their lack of analysis by BG Tahzib in Freedom of Religion or Belief (Martinus Nijhoff, 1996), 287–92. 48

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a religious and moral education in conformity with their own convictions, set forth in article 18(4), is related to the guarantees of the freedom to teach a religion or belief stated in article 18(1). The Committee notes that public education that includes instruction in a particular religion or belief is inconsistent with article 18(4) unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians.

[17.51]

HARTIKAINEN et al v FINLAND (40/78)

The facts are evident from the following excerpts: ¶2.1. The author claims that the School System Act of 26 July 1968, paragraph 6, of Finland is in violation of article 18 (4) of the Covenant inasmuch as it stipulates obligatory attendance in Finnish schools, by children whose parents are atheists, in classes on the history of religion and ethics. He alleges that since the textbooks on the basis of which the classes have been taught were written by Christians the teaching has unavoidably been religious in nature.

Finland defended its laws in the following terms: ¶7.2. Having regard to the relevant legislation, the State party submits that it can be stated that religious education is not compulsory in Finland. It adds that there is, however, the possibility that students, who by virtue of the Religious Freedom Act have been exempted from religious instruction, may receive instruction in the study of the history of religions and ethics; such instruction is designed to give the students knowledge of a general nature deemed to be useful as part of their basic education in a society in which the over-whelming majority of the population belongs to a religious denomination. The State party claims that the directives issued by the National Board of Education concerning the principal aims of the instruction to be given show that the instruction is not religious in character. However, the State party explains that there have in some cases been difficulties in the practical application of the teaching plan relating to this study and that in January 1979 the National Board of Education established a working group consisting of members representing both religious and non-religious views to look into these problems and to review the curriculum.

The HRC found that there had been no violation of article 18(4): ¶10.4. The Committee does not consider that the requirement of the relevant provisions of Finnish legislation that instruction in the study of the history of religions and ethics should be given instead of religious instruction to students in schools whose parents or legal guardians object to religious instruction is in itself incompatible with article 18 (4), if such alternative course of instruction is given in a neutral and objective way and respects the convictions of parents and guardians who do not believe in any religion. In any event, paragraph 6 of the School System Act expressly permits any parents or guardians who do not wish their children to be given either religious instruction or instruction in the study of the history of religions and ethics to obtain exemption therefrom by arranging for them to receive comparable instruction outside of school. ¶10.5. The State party admits that difficulties have arisen in regard to the existing teaching plan to give effect to these provisions, (which teaching plan does appear, in part at least, to be religious in character), but the Committee believes that appropriate action is being taken to resolve the difficulties and it sees no reason to conclude that this cannot be

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accomplished, compatibly with the requirements of article 18 (4) of the Covenant, within the framework of the existing laws.

Therefore, compulsory religious or moral education does not conflict with article 18(4) if it provides for a pluralistic depiction of religion.49 [17.52]

LEIRVÅG et al v NORWAY (931/00)

In August 1998, a subject called ‘Christian Knowledge and Religious and Ethical Education’ (CKREE) was introduced into Norwegian schools by the Government, a subject which emphasized Christianity though it did also examine other religions. The authors of the complaint were Norwegian families who had ‘humanist’ life-stances and did not want their children participating in the subject. Their applications for full exemption from the subject had all been rejected by various schools. Two of the families were given permission for their children to be partially exempt from the course but had found that their children were bullied and stigmatized because of their partial exemption. The authors claimed that the laws governing the teaching of the subject breached article 18(4). The HRC agreed: ¶14.2. The main issue before the Committee is whether the compulsory instruction of the CKREE subject in Norwegian schools, with only limited possibility of exemption, violates the authors’ right to freedom of thought, conscience and religion under article 18 and more specifically the right of parents to secure the religious and moral education of their children in conformity with their own convictions, pursuant to article 18, paragraph 4. The scope of article 18 covers not only protection of traditional religions, but also philosophies of life, such as those held by the authors. . . . ¶14.3. Firstly, the Committee will examine the question of whether or not the instruction of the CKREE subject is imparted in a neutral and objective way. On this issue, the Education Act, section 2–4, stipulates that: ‘Teaching on the subject shall not involve preaching. Teachers of Christian Knowledge and Religious and Ethical Education shall take as their point of departure the object clause of the primary and lower secondary school laid down in section 1–2, and present Christianity, other religions and philosophies of life on the basis of their distinctive characteristics. Teaching of the different topics shall be founded on the same educational principles’. In the object clause in question it is prescribed that the object of primary and lower secondary education shall be ‘in agreement and cooperation with the home, to help to give pupils a Christian and moral upbringing’. Some of the travaux préparatoires of the Act referred to above make it clear that the subject gives priority to tenets of Christianity over other religions and philosophies of life. In that context, the Standing Committee on Education concluded, in its majority, that: the tuition was not neutral in value, and that the main emphasis of the subject was instruction on Christianity. The State party acknowledges that the subject has elements that may be perceived as being of a religious nature, these being the activities exemption from which is granted without the parents having to give reasons. Indeed, at least some of the activities in question involve, on their face, not just education in religious knowledge, but the actual practice of a particular religion. . . . It also transpires from the research results invoked by the authors, and from their personal experience that the subject has elements that are not perceived by 49

Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 434–5.

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them as being imparted in a neutral and objective way. The Committee concludes that the teaching of CKREE cannot be said to meet the requirement of being delivered in a neutral and objective way, unless the system of exemption in fact leads to a situation where the teaching provided to those children and families opting for such exemption will be neutral and objective. ¶14.4. The second question to be examined thus is whether the partial exemption arrangements and other avenues provide ‘for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents or guardians.’ The Committee notes the authors’ contention that the partial exemption arrangements do not satisfy their needs, since teaching of the CKREE subject leans too heavily towards religious instruction, and that partial exemption is impossible to implement in practice. Furthermore, the Committee notes that the Norwegian Education Act provides that ‘on the basis of written notification from parents, pupils shall be exempted from attending those parts of the teaching at the individual school that they, on the basis of their own religion or philosophy of life, perceive as being the practice of another religion or adherence to another philosophy of life’. ¶14.5. The Committee notes that the existing normative framework related to the teaching of the CKREE subject contains internal tensions or even contradictions. On the one hand, the Constitution and the object clause in the Education Act contain a clear preference for Christianity as compared to the role of other religions and worldviews in the educational system. On the other hand, the specific clause on exemptions in Section 2–4 of the Education Act is formulated in a way that in theory appears to give a full right of exemption from any part of the CKREE subject that individual pupils or parents perceive as being the practice of another religion or adherence to another philosophy of life. If this clause could be implemented in a way that addresses the preference reflected in the Constitution and the object clause of the Education Act, this could arguably be considered as complying with article 18 of the Covenant. ¶14.6. The Committee considers, however, that even in the abstract, the present system of partial exemption imposes a considerable burden on persons in the position of the authors, insofar as it requires them to acquaint themselves with those aspects of the subject which are clearly of a religious nature, as well as with other aspects, with a view to determining which of the other aspects they may feel a need to seek—and justify—exemption from. Nor would it be implausible to expect that such persons would be deterred from exercising that right, insofar as a regime of partial exemption could create problems for children which are different from those that may be present in a total exemption scheme. Indeed as the experience of the authors demonstrates, the system of exemptions does not currently protect the liberty of parents to ensure that the religious and moral education of their children is in conformity with their own convictions. In this respect, the Committee notes that the CKREE subject combines education on religious knowledge with practising a particular religious belief, e.g. learning by heart of prayers, singing religious hymns or attendance at religious services. . . . While it is true that in these cases parents may claim exemption from these activities by ticking a box on a form, the CKREE scheme does not ensure that education of religious knowledge and religious practice are separated in a way that makes the exemption scheme practicable. ¶14.7. In the Committee’s view, the difficulties encountered by the authors, in particular the fact that [two of them] had to recite religious texts in the context of a Christmas celebration although they were enrolled in the exemption scheme, as well as the loyalty conflicts experienced by the children, amply illustrate these difficulties. Furthermore, the requirement to

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give reasons for exempting children from lessons focusing on imparting religious knowledge and the absence of clear indications as to what kind of reasons would be accepted creates a further obstacle for parents who seek to ensure that their children are not exposed to certain religious ideas. In the Committee’s view, the present framework of CKREE, including the current regime of exemptions, as it has been implemented in respect of the authors, constitutes a violation of article 18, paragraph 4, of the Covenant in their respect.

[17.53] In Delgado Páez v Colombia (195/85), the HRC stated the following: ¶5.7. . . . Colombia may, without violating [article 18], allow the Church authorities to decide who may teach religion and in which manner it should be taught.

Presumably, article 18(4) would have permitted parents to withdraw their children from Colombian religious education. Nevertheless, the Delgado Páez statement seems to contradict the following statement regarding Costa Rica:50 ¶13. The Committee recommends that the State party take steps to ensure that there is no discrimination in the exercise of the right to religious education, particularly with respect to access to religious teachings other than Catholicism. Current practices which make the selection of religious instructors subject to the authorisation of the National Episcopal Conference are not in conformity with the Covenant.

[17.54] In Concluding Observations on Norway, the HRC stated the following:51 ¶10. The Committee emphasises that article 2 of the Constitution which provides that individuals professing the Evangelical-Lutheran religion are bound to bring up their children in the same faith is in clear contradiction with article 18 of the Covenant.

The Norwegian comment seems to target laws that restricted the educational options of Evangelical Lutheran parents regarding their children. However, the Comment may also be addressing the religious rights of the children of Evangelical Lutherans. Indeed, the HRC has never explained where the article 18(4) rights of parents may end, and the article 18(1) rights of children begin, in case of conflict between such rights.52 [17.55] Waldman v Canada (694/96) concerned a complaint about preferential funding given to Roman Catholic schools compared to schools for other minority religions in Canada. The HRC chose to dispose of the case exclusively under article 26 [23.60]. [17.56] The HRC said the following in Concluding Observations on Ireland:53 ¶22. The Committee notes with concern that the vast majority of Ireland’s primary schools are privately run denominational schools that have adopted a religious integrated curriculum 50

Concluding Observations on Costa Rica (1994) UN doc CCPR/C/79/Add.31. (1993) UN doc CCPR/C/79/Add.27. These criticisms were repeated in the next set of Concluding Observations on Norway, at (1999) UN doc CCPR/C/79/Add.1112, para 13. 52 See G Van Bueren, ‘The International Protection of Family Members’ Rights as the 21st Century Approaches’ (1995) 17 HRQ 732 at 743–7. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, recognizes the potential for a conflict between the religious rights of parents and children at 417. See also Tahzib, Freedom of Religion or Belief, 364. 53 (2008) UN doc CCPR/C/IRL/CO/3. 51

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thus depriving many parents and children who so wish to have access to secular primary education (arts. 2, 18, 24, 26). The State party should increase its efforts to ensure that non-denominational primary education is widely available in all regions of the State party, in view of the increasingly diverse and multi-ethnic composition of the population of the State party.

Conclusion [17.57] The HRC has dealt with a number of interesting issues related to freedom of belief and especially religion, including direct and indirect restrictions on religious clothes in public settings, prohibitions on proselytism, the use of cannabis as a religious tenet, restrictions on Scientologists in Germany, conscientious objection, and the rights of parents with regard to the religious (or non-religious) schooling of their children.

18 Freedom of Expression—Articles 19 and 20 • Article 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Freedom of ‘Opinion’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Meaning of ‘Freedom of Expression’ . . . . . . . . . . . . . . . . . . . . . . . . • Freedom to Impart Information . . . . . . . . . . . . . . . . . . . . . . . . . . . • Freedom of Expression and the Media . . . . . . . . . . . . . . . . . . . . . . • Article 19 and the Internet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Right of Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Right to Receive Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Permissible Limitations to Free Expression . . . . . . . . . . . . . . . . . . . • Rights of Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Reputations of Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • National Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Public Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Public Health and Morals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Article 20 and Hate Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Article 4, CERD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Holocaust Denial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[18.01] [18.05] [18.08] [18.15] [18.18] [18.21] [18.22] [18.28] [18.30] [18.36] [18.44] [18.48] [18.55] [18.65] [18.72] [18.85] [18.90] [18.95]

Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

[18.01] Freedom of expression permits people to impart and receive ideas and information. It is a most important right for ensuring individual self-fulfilment, as well as a pluralistic, tolerant society with access to multitudes of ideas and philosophies. However, in article 19(3), it is expressly recognized that the right of free expression can be abused so as to undermine the rights of others: ‘exercise of the right . . . carries with it special duties and responsibilities’. Article 19 rights may accordingly be restricted for a number of reasons. Indeed, the ICCPR

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provides for a compulsory restriction on a certain type of expression, namely hate speech, in article 20. [18.02]

GENERAL COMMENT 34

¶2. Freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society. They constitute the foundation stone for every free and democratic society. The two freedoms are closely related, with freedom of expression providing the vehicle for the exchange and development of opinions. ¶3. Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.

[18.03] In General Comment 34, the Human Rights Committee (HRC) went on to discuss the relationship between article 19 and other provisions of the International Covenant on Civil and Political Rights (ICCPR). ¶4. Among the other articles that contain guarantees for freedom of opinion and/or expression, are articles 18, 17, 25 and 27. The freedoms of opinion and expression form a basis for the full enjoyment of a wide range of other human rights. For instance, freedom of expression is integral to the enjoyment of the rights to freedom of assembly and association, and the exercise of the right to vote. . . . ¶20. The Committee, in general comment No. 25 on participation in public affairs and the right to vote, elaborated on the importance of freedom of expression for the conduct of public affairs and the effective exercise of the right to vote [22.33]. The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues and to inform public opinion without censorship or restraint. . . .

[18.04] The HRC also confirmed the scope of the right in terms of the entities targeted by the obligation: ¶7. The obligation to respect freedoms of opinion and expression is binding on every State party as a whole. All branches of the State (executive, legislative and judicial) and other public or governmental authorities, at whatever level—national, regional or local—are in a position to engage the responsibility of the State party. Such responsibility may also be incurred by a State party under some circumstances in respect of acts of semi-State entities. The obligation also requires States parties to ensure that persons are protected from any acts by private persons or entities that would impair the enjoyment of the freedoms of opinion and expression to the extent that these Covenant rights are amenable to application between private persons or entities. FREEDOM OF ‘OPINION’

[18.05] The holding of an opinion is passive conduct, and is an absolute freedom. The absolute nature of the right ceases once one airs or otherwise manifests one’s opinions.1 That activity is in the realm of ‘freedom of expression’. However, 1 See D McGoldrick, The Human Rights Committee (Clarendon Press, 1994), 460, quoting former HRC Chairman Andreas Mavrommatis.

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Nowak states that it may be difficult to distinguish between activity which impermissibly interferes with freedom of opinion (such as brainwashing) and activity which merely seeks to influence opinion (a possible example being bombardment by mass-media propaganda).2 Infringements may be limited to instances where one’s opinion is somehow involuntarily influenced.3 [18.06]

GENERAL COMMENT 34

¶9. Paragraph 1 of article 19 requires protection of the right to hold opinions without interference. This is a right to which the Covenant permits no exception or restriction. Freedom of opinion extends to the right to change an opinion whenever and for whatever reason a person so freely chooses. No person may be subject to the impairment of any rights under the Covenant on the basis of his or her actual, perceived or supposed opinions. All forms of opinion are protected, including opinions of a political, scientific, historic, moral or religious nature. It is incompatible with paragraph 1 to criminalize the holding of an opinion. The harassment, intimidation or stigmatization of a person, including arrest, detention, trial or imprisonment for reasons of the opinions they may hold, constitutes a violation of article 19, paragraph 1. ¶10. Any form of effort to coerce the holding or not holding of any opinion is prohibited. Freedom to express one’s opinion necessarily includes freedom not to express one’s opinion.

[18.07]

KANG v REPUBLIC OF KOREA (878/99)

The author was a suspected sympathizer with the North Korean communist regime, and was convicted of subversive activities that were prejudicial to the national security of the Republic of Korea. During his subsequent incarceration, he was subjected to pressure to convert from his alleged communist political opinions, under a system known as the ‘ideology conversion system’. He was held in solitary confinement for 13 years, apparently as a punishment for his refusal to ‘convert’. The HRC found a breach of article 19(1): ¶7.2. As to the author’s claim that the ‘ideology conversion system’ violates his rights under articles 18, 19 and 26, the Committee notes the coercive nature of such a system, preserved in this respect in the succeeding ‘oath of law-abidance system’, which is applied in discriminatory fashion with a view to alter the political opinion of an inmate by offering inducements of preferential treatment within prison and improved possibilities of parole. The Committee considers that such a system, which the State party has failed to justify as being necessary for any of the permissible limiting purposes enumerated in articles 18 and 19, restricts freedom of expression and of manifestation of belief on the discriminatory basis of political opinion and thereby violates articles 18, paragraph 1, and 19, paragraph 1, both in conjunction with article 26. MEANING OF ‘FREEDOM OF EXPRESSION’

[18.08]

GENERAL COMMENT 34

¶11. Paragraph 2 requires States parties to guarantee the right to freedom of expression, including the right to seek, receive and impart information and ideas of all kinds regardless 2 M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005), 442. 3 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 442.

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of frontiers. This right includes the expression and receipt of communications of every form of idea and opinion capable of transmission to others, subject to the provisions in article 19, paragraph 3, and article 20. It includes political discourse, commentary on one’s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse. It may also include commercial advertising. The scope of paragraph 2 embraces even expression that may be regarded as deeply offensive, although such expression may be restricted in accordance with the provisions of article 19, paragraph 3 and article 20. ¶12. Paragraph 2 protects all forms of expression and the means of their dissemination. Such forms include spoken, written and sign language and such non-verbal expression as images and objects of art.4 Means of expression include books, newspapers, pamphlets, posters, banners, dress and legal submissions. They include all forms of audio-visual as well as electronic and internet-based modes of expression.

[18.09] Numerous cases, including Mpandanjila et al v Zaire (138/83), Kalenga v Zambia (326/88), Jaona v Madagascar (132/82), Kivenmaa v Finland (412/90) [18.11], Aduayom et al v Togo (422–424/90), and Korneenko v Belarus (1553/07) have confirmed that protected expression includes political expression.5 [18.10]

BALLANTYNE et al v CANADA (359, 385/89)

This case concerned a challenge to Canadian (Quebec) laws which restricted commercial advertising in a language other than French. ¶11.3. Under article 19 of the Covenant, everyone shall have the right to freedom of expression; this right may be subjected to restrictions, conditions for which are set out in article 19, paragraph 3. The Government of Quebec has asserted that commercial activity such as outdoor advertising does not fall within the ambit of article 19. The Committee does not share this opinion. Article 19, paragraph 2, must be interpreted as encompassing every form of subjective ideas and opinions capable of transmission to others, which are compatible with article 20 of the Covenant, of news and information, of commercial expression and advertising, of works of art, etc.; it should not be confined to means of political, cultural or artistic expression. In the Committee’s opinion, the commercial element in an expression taking the form of outdoor advertising cannot have the effect of removing this expression from the scope of protected freedom. The Committee does not agree either that any of the above forms of expression can be subjected to varying degrees of limitation, with the result that some forms of expression may suffer broader restrictions than others.

[18.11]

KIVENMAA v FINLAND (412/90)

The author complained of her arrest for distributing leaflets and unfurling a banner which criticized the human rights record of a visiting Head of State. Both actions occurred at a demonstration. The argument in the case centred around potential breaches of article 21, which guarantees freedom of assembly. Finland had submitted the following argument against a finding of an article 19 violation:

4 5

See eg Shin v Republic of Korea (926/00). See also cases cited at [18.51]ff.

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¶7.4. . . . the State party argues that a demonstration necessarily entails the expression of an opinion, but, by its specific character, is to be regarded as an exercise of the right of peaceful assembly. In this connection, the State party argues that article 21 of the Covenant must be seen as lex specialis in relation to article 19 and that therefore the expression of an opinion in the context of a demonstration must be considered under article 21, and not under article 19 of the Covenant.

The HRC majority found breaches of articles 19 and 21 in this case [19.08]. It thus confirmed that non-verbal expression in the form of ‘raising a banner’ was protected under article 19.6 [18.12] Article 19 does not go so far as to give one a right to address a court in the language of one’s choice (Guesdon v France (219/86)) if one can speak the official court language.7 Such a right would essentially impose positive linguistic criteria upon the State in the exercise of its public functions.8 [18.13] In Zündel v Canada (953/00),9 the HRC determined that article 19 does not incorporate a right to hold a press conference within a State’s parliamentary precinct, even if permission was initially granted but then revoked: the relevant press conference could have been held elsewhere. Nor does it incorporate a right to demand that one’s press conference be broadcast. [18.14] In SG v France (347/88) and GB v France (348/89), the complainants were arrested for defacing road signs as part of an ongoing protest about the inferior status of the Breton language in France. In both cases the HRC found that ‘the defacing of road signs does not raise any issues under article 19’.10 However, surely one can imagine circumstances where graffiti is protected under article 19, or at least is defined as ‘expression’ for the purposes of article 19(2). Freedom to Impart Information [18.15]

LAPTSEVICH v BELARUS (780/97)

¶3.1. The author was sanctioned for not complying with the requirements set out in article 26 of the Act on the Press and Other Mass Media (‘the Press Act’). This provision requires that ‘Every edition of a printed periodical publication shall contain the following details: 1) Name of publication; 2) Founder (co-founders); 3) Full name of the (editor-in-chief) or his deputy; 4) serial number of the edition and date of issue, and also, for newspapers,

6 In Baban v Australia (1014/01), the HRC was prepared to assume and thus did not confirm that ‘a hunger strike may be subsumed under the right to freedom of expression’ (para 6.7). The HRC found no violation of art 19(1) arose on the facts of the case, and thus did not need to decide whether a hunger strike was a manifestation of ‘expression’ [18.62]. 7 At para 7.2; see also Cadoret and Le Bihan v France (221/87, 323/88), para 5.2. Article 14(3)(f) provides a right to the assistance of an interpreter if one ‘cannot understand or speak the language used in court’. See [14.178]. 8 Such a duty may arise with regard to minority languages under art 27: see [24.49]ff; see also [18.41]. 9 10 At para 8.5. See SG v France, para 5.2, and GB v France, para 5.1.

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date when sent to press; price per issue (copy) or the indication “price not stipulated” or “free”; 6) print run; 7) index number (for editions distributed by mail delivery services); 8) publisher’s and printer’s full addresses; 9) registration number.’ . . .

The State Party agreed that the author had been sanctioned for violating the relevant domestic law, and submitted a very brief defence of its censorship of the author’s publication: ¶5.2. The State party also submits that ‘the leaflets distributed by the author include a misrepresentation of the historical formation of the State of Belarus, a description of alleged occupation by the Bolsheviks and of the armed struggle of the Belorussians against the “occupiers”, together with a call to emulate “this struggle” for the independence of Belarus in the present day.’ ¶8.1. The first issue before the Committee is whether or not the application of article 26 of the Press Act to the author’s case, resulting in the confiscation of the leaflets and the subsequent fine, constituted a restriction within the meaning of article 19, paragraph 3, on the author’s freedom of expression. The Committee notes that under the Act, publishers of periodicals as defined in article 1 are required to include certain publication data, including index and registration numbers which, according to the author, can only be obtained from the administrative authorities. In the view of the Committee, by imposing these requirements on a leaflet with a print run as low as 200, the State party has established such obstacles as to restrict the author’s freedom to impart information, protected by article 19, paragraph 2. ¶8.4. In the very brief submission of the State party set out in paragraph 5.2 supra, it is implied that the sanctions were necessary to protect national security, as reference is made to the contents of the author’s writings. There is, however, nothing in the material before the Committee which suggests that either the reactions of the police or the findings of the courts were based on anything other than the absence of necessary publication data. Therefore, the only issue before the Committee is whether or not the sanctions imposed on the author for not including the details required by the Press Act can be deemed necessary for the protection of public order (ordre public) or for respect of the rights or reputations of others. ¶8.5. In this regard, the Committee notes that the State party has argued that the requirements set out in article 26 of the Press Act are generally in full compliance with the Covenant. It has not, however, made any attempt to address the author’s specific case and explain the reasons for the requirement that, prior to publishing and disseminating a leaflet with a print run of 200, he was to register his publication with the administrative authorities to obtain index and registration numbers. Furthermore, the State party has failed to explain why this requirement was necessary for one of the legitimate purposes set out in article 19, paragraph 3, and why the breach of the requirements necessitated not only pecuniary sanctions, but also the confiscation of the leaflets still in the author’s possession. In the absence of any explanation justifying the registration requirements and the measures taken, it is the view of the Committee that these cannot be deemed necessary for the protection of public order (ordre public) or for respect of the rights or reputations of others. The Committee therefore finds that article 19, paragraph 2, has been violated in the present case.

Similar decisions have been delivered in Tulzhenkova v Belarus (1838/08) and Sudalenko v Belarus (1750/08).

596 [18.16]

The ICCPR NAM v REPUBLIC of KOREA (693/96)

The author was a language teacher in Soul, South Korea. He wanted to improve language education by publishing a new textbook for the national curriculum. Korean education laws prohibited the independent publication of national language curricular textbooks. His domestic challanges to the laws failed. He argued that his inability to publish his text violated his right to freedom of expression guaranteed by article 19(2). South Korea explained that its education policy was intended to ensure that textbooks were of suitable quality. It added that it was gradually reviewing its policy. It explained that Nam could not prescribe his text for the classroom, but could publish it with a view to prescribing it as a reference tool. In response, Nam argued that there was no system in place to allow the State to even vet independently written textbooks. The HRC found the claim to be inadmissible: ¶10. [T]he communication relates to the author’s allegation that there is no process of scrutiny in place for the purpose of submitting non-governmental publications for approval by the authorities, for their use as school textbooks. While affirming that the right to write and publish textbooks intended for use at school falls under the protection of article 19 of the Covenant, the Committee notes that the author claims that he is entitled to have the textbook prepared by him scrutinized and approved/rejected by the authorities for use as textbook in public middle schools. This claim, in the Committee’s opinion, falls outside the scope of article 19 and consequently it is inadmissible under article 3 of the Optional Protocol.

[18.17] The majority’s views here are legalistic and unsatisfying. It found that the right of individuals to write and publish textbooks fell within article 19. However, there was no right within article 19 for one to have access to a process whereby one could submit one’s text for approval (or disapproval) for use in classrooms. Clearly, there is no right to have one’s work prescribed in class as a textbook. However, the utility of the right to write and publish textbooks is considerably diminished if there is no chance that the resulting work will actually be prescribed as a textbook because there is no procedure in place to determine whether the book should or should not be so prescribed. It is submitted, therefore, that Mr Solari Yrigoyen’s dissent is preferable. He stated: The fact that an author has no possibility of submitting a middle school national language textbook to the authorities for approval or, as the case may be, rejection on valid grounds constitutes a restriction which goes beyond the restrictions provided for by article 19, paragraph 3, of the Covenant, as well as disregard for the right to freedom of expression.

Freedom of Expression and the Media [18.18]

GENERAL COMMENT 34

¶13. A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society. The Covenant embraces a right whereby the media may receive information on the basis of which it can carry out its function. The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a

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free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. The public also has a corresponding right to receive media output. ¶14. As a means to protect the rights of media users, including members of ethnic and linguistic minorities, to receive a wide range of information and ideas, States parties should take particular care to encourage an independent and diverse media. . . . ¶16. States parties should ensure that public broadcasting services operate in an independent manner. In this regard, States parties should guarantee their independence and editorial freedom. They should provide funding in a manner that does not undermine their independence. . . . ¶39. States parties should ensure that legislative and administrative frameworks for the regulation of the mass media are consistent with the provisions of paragraph 3 [of Article 19]. Regulatory systems should take into account the differences between the print and broadcast sectors and the internet, while also noting the manner in which various media converge. It is incompatible with article 19 to refuse to permit the publication of newspapers and other print media other than in the specific circumstances of the application of paragraph 3. Such circumstances may never include a ban on a particular publication unless specific content, that is not severable, can be legitimately prohibited under paragraph 3. States parties must avoid imposing onerous licensing conditions and fees on the broadcast media, including on community and commercial stations. The criteria for the application of such conditions and licence fees should be reasonable and objective, clear, transparent, non-discriminatory and otherwise in compliance with the Covenant. Licensing regimes for broadcasting via media with limited capacity, such as audiovisual terrestrial and satellite services should provide for an equitable allocation of access and frequencies between public, commercial and community broadcasters. It is recommended that States parties that have not already done so should establish an independent and public broadcasting licensing authority, with the power to examine broadcasting applications and to grant licenses. . . . ¶44. Journalism is a function shared by a wide range of actors, including professional full-time reporters and analysts, as well as bloggers and others who engage in forms of self-publication in print, on the internet or elsewhere, and general State systems of registration or licensing of journalists are incompatible with paragraph 3. Limited accreditation schemes are permissible only where necessary to provide journalists with privileged access to certain places and/or events. Such schemes should be applied in a manner that is non-discriminatory and compatible with article 19 and other provisions of the Covenant, based on objective criteria and taking into account that journalism is a function shared by a wide range of actors. ¶45. It is normally incompatible with paragraph 3 to restrict the freedom of journalists and others who seek to exercise their freedom of expression (such as persons who wish to travel to human rights-related meetings) to travel outside the State party, to restrict the entry into the State party of foreign journalists to those from specified countries11 or to restrict freedom of movement of journalists and human rights investigators within the State party (including to conflict-affected locations, the sites of natural disasters and locations where there are allegations of human rights abuses). States parties should recognize and respect 11 Concluding observations on Democratic People’s Republic of Korea (2001) UN doc CCPR/ CO/72/PRK, para 23.

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that element of the right of freedom of expression that embraces the limited journalistic privilege not to disclose information sources.12 ¶46. . . . The media plays a crucial role in informing the public about acts of terrorism and its capacity to operate should not be unduly restricted. In this regard, journalists should not be penalized for carrying out their legitimate activities.

[18.19] The HRC also acknowledged the danger to freedom of expression from media monopolies, both public and private. ¶40. The Committee reiterates its observation in general comment No. 10 that ‘because of the development of modern mass media, effective measures are necessary to prevent such control of the media as would interfere with the right of everyone to freedom of expression’. The State should not have monopoly control over the media and should promote plurality of the media.13 Consequently, States parties should take appropriate action, consistent with the Covenant, to prevent undue media dominance or concentration by privately controlled media groups in monopolistic situations that may be harmful to a diversity of sources and views.

Private media monopolies are an issue it previously took up in Concluding Observations on Italy:14 ¶10. The Committee is concerned about the excessive concentration of the mass media in a small group of people. Furthermore, it notes that such concentration may affect the enjoyment of the right to freedom of expression and information under article 19 of the Covenant. . . . ¶17. In order to avoid the inherent risks in the excessive concentration of control of the mass information media in a small group of people, the Committee emphasises the importance of implementing measures to ensure impartial allocation of resources as well as equitable access to such media, and of adopting anti-trust legislation regulating mass media.15

[18.20] Finally, the HRC addressed in General Comment 34 the subtle pressures that governments can place on media outlets through misuse of government subsidies and advertising. ¶41. Care must be taken to ensure that systems of government subsidy16 to media outlets and the placing of government advertisements are not employed to the effect of impeding freedom of expression.17 Furthermore, private media must not be put at a disadvantage compared to public media in such matters as access to means of dissemination/distribution and access to news.

Article 19 and the Internet [18.21]

GENERAL COMMENT 34

¶15. States parties should take account of the extent to which developments in information and communication technologies, such as internet and mobile based electronic information 12

See Concluding observations on Kuwait (2000) UN doc CCPR/CO/69/KWT, para 36. See also Concluding Observations on Russian Federation (2003) UN doc CCPR/CO/79/RUS, para 18. 14 (1995) UN doc CCPR/C/79/Add.37. 15 See also Concluding Observations on Italy (2006) UN doc CCPR/C/ITA/CO/5, para 20. 16 Concluding Observations on the Ukraine (2001) UN doc CCPR/CO/73/UKR, para 22. 17 Concluding Observations on Lesotho (1999) UN doc CCPR/C/79/Add.106, para 22. 13

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dissemination systems, have substantially changed communication practices around the world. There is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries. States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto. . . . ¶43. Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an information dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government. RIGHT OF ACCESS TO INFORMATION

[18.22]

GENERAL COMMENT 34

¶18. Article 19, paragraph 2 embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production. Public bodies are as indicated in paragraph 7 of this general comment. The designation of such bodies may also include other entities when such entities are carrying out public functions. As has already been noted, taken together with article 25 of the Covenant, the right of access to information includes a right whereby the media has access to information on public affairs18 and the right of the general public to receive media output. Elements of the right of access to information are also addressed elsewhere in the Covenant. As the Committee observed in its general comment No. 16, regarding article 17 of the Covenant [16.58], every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes. Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files. If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law, every individual should have the right to have his or her records rectified. Pursuant to article 10 of the Covenant, a prisoner does not lose the entitlement to access to his medical records [9.222]. The Committee, in general comment No. 32 on article 14, set out the various entitlements to information that are held by those accused of a criminal offence [14.122]. Pursuant to the provisions of article 2, persons should be in receipt of information regarding their Covenant rights in general. Under article 27, a State party’s decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities [24.35]. ¶19. To give effect to the right of access to information, States parties should proactively put in the public domain Government information of public interest. States parties should make every effort to ensure easy, prompt, effective and practical access to such information. States parties should also enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation. The procedures 18

See Gauthier v Canada (633/95) [18.61].

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should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant. Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information. Authorities should provide reasons for any refusal to provide access to information. Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requests.

[18.23] In Jorge Asensi v Spain (1413/05), the author unsuccessfully sought promotion within the Spanish army. He alleged that relevant authorities failed to comply with established procedures in preparing the shortlist of candidates. He claimed a breach, inter alia, of article 19(2) entailed in the failure by authorities to grant him access to information concerning the consideration of his promotion application. The HRC ruled that claim to be inadmissible due to a lack of substantiation.19 That decision is disappointing. Clearly, the claim concerned access to information, which must raise issues regarding the right to freedom of information guaranteed under article 19(2). While there may have been justifiable national security reasons for Spain to restrict access to that information, that is an issue concerning restrictions to freedom of information under article 19(3) and should have been determined on the merits. [18.24]

SB v KYRGYSZTAN (1877/09)

The author was a human rights defender who sought official information on the number of persons executed in the State during a particular time period. He was refused access to the information regarding a particular five month period. He claimed a breach of his right to seek and receive information in breach of article 19(2). The HRC found his claim to be inadmissible: ¶4.2. [The Committee] notes that the author has not explained why exactly he, personally, needed the information in question; rather, he contended that this was a ‘matter of public interest’. Under these circumstances, and in the absence of any other pertinent information, the Committee considers that the present communication constitutes an actio popularis and that therefore it is inadmissible under article 1 of the Optional Protocol.

It is submitted that the HRC was wrong to say that SB had demonstrated no personal interest in attaining the information. He had asked for the information, which was information in the hands of the government rather than another’s private information, and had not received it, so he had been directly refused access to information that he wished to receive. Furthermore, he had fought legal cases in Kyrgyzstan, unsuccessfully, in order to gain access to the relevant information. The case should have been admissible, and the question of whether SB’s right to receive the information considered at the merits stage. At the very least, the communication should have been transmitted to Kyrgystan so it could explain why the information had not been given to SB [3.06]. [18.25]

TOKTAKUNOV v KYRGYSZTAN (1470/06)

The author was the legal consultant for a human rights group who requested certain information on the death penalty in the State. The State refused to disclose 19

At para 7.4.

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the data. The author claimed a breach of article 19(2). The HRC found the case admissible in the following terms: ¶6.3. As to the author’s locus standi under article 1 of the Optional Protocol, the Committee notes that the specific information sought by him, i.e. the number of individuals sentenced to death in the Kyrgyzstan, is considered to be of public interest in Resolutions Nos. 2003/67 and 2004/60 of the Commission on Human Rights on the question of the death penalty, and in the Copenhagen Document, which was signed by the State party. In this respect, the Committee notes that the Copenhagen Document imposes a special obligation to the authorities to provide information on the use of death penalty, and that this was accepted by the State party. It also notes that, in general, judgments rendered in criminal cases, including those imposing death penalty, are public. The Committee further notes that the reference to the right to ‘seek’ and ‘receive’ ‘information’ as contained in article 19, paragraph 2, of the Covenant, includes the right of individuals to receive State-held information, with the exceptions permitted by the restrictions established in the Covenant. It observes that the information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied. The Committee also recalls its position in relation to press and media which includes a right for the media actors to have access to information on public affairs and the right of the general public to receive media output. It further notes that among the functions of the press and media are the creation of forums for public debate and the forming of public or, for that matter, individual opinions on matters of legitimate public concern, such as the use of the death penalty. The Committee considers that the realisation of these functions is not limited to the media or professional journalists, and that they can also be exercised, for example, by public associations or private individuals. With reference to its conclusions in . . . S.B. v. Kyrgyzstan, the Committee also notes that the author in the present case is a legal consultant of a human rights public association, and as such, he can be seen as having a special ‘watchdog’ functions on issues of public interest. In light of the considerations listed above, in the present communication, the Committee is satisfied, due to the particular nature of the information sought, that the author has substantiated, for purposes of admissibility, that he, as an individual member of the public, was directly affected by the refusal of the State party’s authorities to make available to him, on request, the information on use of the death penalty.

With respect, the decision in SB seems untenable in light of this admissibility decision in Toktakunov. After all, the author in SB was a human rights defender. Furthermore, surely the right to freedom of information belongs to all, except in cases where access can be legitimately limited to certain classes of people, for example for national security reasons. No such reasons applied in either of these Kyrgysztan cases. [18.26] The HRC in Toktakunov went on to find a violation of article 19(2): ¶7.3. . . . The first issue before the Committee is . . . whether the right of the individual to receive State-held information, protected by article 19, paragraph 2, of the Covenant, brings about a corollary obligation of the State to provide it, so that the individual may have access to such information or receive an answer that includes a justification when, for any reason permitted by the Covenant, the State is allowed to restrict access to the information in a specific case. ¶7.4. In this regard, the Committee recalls its position in relation to press and media freedom that the right of access to information includes a right of the media to have access to

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information on public affairs and the right of the general public to receive media output. The Committee considers that the realisation of these functions is not limited to the media or professional journalists, and that they can also be exercised by public associations or private individuals. . . . When, in the exercise of such ‘watchdog’ functions on matters of legitimate public concern, associations or private individuals need to access State-held information, as in the present case, such requests for information warrant similar protection by the Covenant to that afforded to the press. The delivery of information to an individual can, in turn, permit it to circulate in society, so that the latter can become acquainted with it, have access to it, and assess it. In this way, the right to freedom of thought and expression includes the protection of the right of access to State-held information, which also clearly includes the two dimensions, individual and social, of the right to freedom of thought and expression that must be guaranteed simultaneously by the State. In these circumstances, the Committee is of the opinion that the State party had an obligation either to provide the author with the requested information or to justify any restrictions of the right to receive State-held information under article 19, paragraph 3, of the Covenant. ¶7.5. The next issue before the Committee is, therefore, whether in the present case such restrictions are justified under article 19, paragraph 3, of the Covenant . . . ¶7.6. The Committee notes the author’s argument, corroborated by the material contained on file, that the by-laws governing access to the information requested by him are classified as confidential and, therefore, inaccessible to him as an individual member of the general public and legal consultant of a human rights public organisation. It also notes the State party’s assertion that ‘data on individuals sentenced to death had been declassified’ and that, ‘pursuant to the by-laws it could be used exclusively for service purposes’ but remained confidential for the press. The Committee considers that in the circumstances, the regulations governing access to information on death sentences in the State party cannot be seen as constituting a ‘law’ meeting the criteria set up in paragraph 3, of article 19, of the Covenant. ¶7.7. The Committee has noted the author’s claim that information on the number of individuals sentenced to death could not have had any negative impact on defence capability, safety, or economic and political interests of the Kyrgyzstan and, therefore, it did not fulfil criteria spelled out in the Law ‘On protection of state secrets’ for it to be classified as a state secret. The Committee regrets the lack of response by the State party authorities to this specific argument raised by the author both at the domestic level and in his communication to the Committee. The Committee reiterates the position set out in Resolutions Nos. 2003/67 and 2004/60 of the Commission on Human Rights, and in the Copenhagen Document . . . that the general public has a legitimate interest in having access to information on the use of the death penalty and concludes that, in the absence of any pertinent explanations from the State party, the restrictions to the exercise of the author’s right to access information on the application to the death penalty held by public bodies cannot be deemed necessary for the protection of national security or of public order (ordre public), public health or morals, or for respect of the rights or reputations of others. ¶7.8. The Committee therefore concludes that the author’s rights under article 19, paragraph 2, of the Covenant, have been violated in the present case, for the reasons exposed in paragraphs 7.6 and 7.7 above.

[18.27] This decision was the first robust decision on the right of citizens to access governmental information. It clearly influenced the HRC’s formulation of

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the right in General Comment 34, adopted a few months later [18.22]. Mr Neuman, in a concurring opinion, added the following with regard to this blooming right within the ICCPR: The traditional right to receive information and ideas from a willing speaker should not be diluted by subsuming it in the newer right of access to information held by government. This modern form of ‘freedom of information’ raises complexities and concerns that can justify limitations on the satisfaction of the right, based on considerations such as cost or the impairment of government functions, in circumstances where the suppression of a similar voluntary communication would not be justified. In explaining and applying the right of access, it is important to observe this distinction, and to be careful not to undermine more central aspects of freedom of expression.

Right to Receive Information [18.28]

MAVLONOV and SA’DI v UZBEKISTAN (1334/04)

This case concerned the State party’s decision to refuse registration to a minority language newspaper. This decision meant the newspaper could not be published. The circumstances manifested clear breaches of article 27 [24.47] as well as the right of the publisher to impart information. A claim was also made by a reader, Mr Sa’di, concerning his right to receive information under article 19(2). That claim was also upheld: ¶8.4. . . . [The State party has not] advanced arguments as to the compatibility of the requirements, which are de facto restrictions on the right to freedom of expression, which are applicable to the authors’ case, with any of the criteria listed in article 19, paragraph 3, of the Covenant. The Committee therefore finds that the right to freedom of expression under article 19 of the Covenant, respectively, Mr. Mavlonov’s ability to publish ‘Oina’ and to impart information, and Mr. Sa’di’s right to receive information and ideas in print, has been violated. The Committee notes that the public has a right to receive information as a corollary of the specific function of a journalist and/or editor to impart information. It considers that Mr. Sa’di’s right to receive information as an ‘Oina’ reader was violated by its non-registration.

Sir Nigel Rodley and Mr Rivas Posada partially dissented regarding the finding on Mr Sa’di: We do not agree that Mr. Sa’di has been the victim of a self standing violation of article 19(2). . . . We find the Committee’s literalist reading of the right to receiving information and ideas is unconvincing. The Committee’s position would require it to treat every potential recipient of any information or ideas that have been improperly suffered under article 19 as a victim in the same way as the person having been prevented from expressing or imparting the information or ideas. Thus, it could find itself dealing with communication from every reader or viewer or listener of a medium of mass communication that has been improperly closed down or whose content has been improperly suppressed. This is not a ‘floodgates’ argument. Rather it is evident that its literalist approach may simply not be the most plausible interpretation of article 19(2). For us, this aspect of Mr. Sa’di’s complaint smacks of actio popularis.

604 [18.29]

The ICCPR PL v BELARUS (1814/08)

The author was a regular reader of a certain newspaper. For years he managed his subscription through a State-owned subscription service called ‘Belpochta’. Belochta dropped the newspaper in 2006. PL claimed a breach of his right to receive information under article 19. The HRC found the case to be inadmissible: ¶6.3. The Committee notes that in substance, the author claims that the discretionary decision of ‘Belpochta’ not to retain the newspaper ‘Vitebsky Courrier M’ in its list of periodicals available for subscription amounted to an unjustified limitation of his right to freedom of expression, in particular of his right to receive information, as protected by article 19, paragraph 2, of the Covenant. The Committee notes, first, that according to the State party ‘Belpochta’, is an autonomous entity and is entitled to decide which periodicals to include in its subscription catalogue. It notes further that neither the provisions of the national law nor the Covenant’s provisions impose any obligation on States parties to ensure obligatory distribution of printed media material. Although the Committee considers that, even if in some circumstances denial of access to State-owned or State-controlled distribution services may amount to an interference with rights protected by article 19, in the present case, the author has not provided sufficient information that would permit the Committee to evaluate the extent of the interference or to determine whether the denial of such access is discriminatory. The Committee further notes that in any event, even if the newspaper in question was not included in the ‘Belpochta’ subscription list and was not delivered to his home address by mail, the author was able to obtain it by other means. Accordingly, the Committee considers that the author has failed to sufficiently substantiate his claim, for purposes of admissibility, and that therefore this part of the communication is inadmissible under article 2, of the Optional Protocol.

The HRC speculated upon but did not confirm whether article 19(2) of the ICCPR might, in some circumstances, provide for an obligation upon a State to ensure access to State-owned or State-controlled distribution services for media outlets. However, such circumstances did not exist here. PERMISSIBLE LIMITATIONS TO FREE EXPRESSION

[18.30] Article 19(3) permits freedom of expression to be limited by measures provided by law, and proportionately designed to protect (a) the rights or reputations of others, and/or (b) national security, public order (ordre public), public health, or morals. [18.31]

GENERAL COMMENT 34

¶22. Paragraph 3 lays down specific conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be ‘provided by law’; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they must conform to the strict tests of necessity and proportionality. Restrictions are not allowed on grounds not specified in paragraph 3, even if such grounds would justify restrictions to other rights protected in the Covenant. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated. . . .

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¶26. Laws restricting the rights enumerated in article 19, paragraph 2, including the laws referred to in paragraph 24, must not only comply with the strict requirements of article 19, paragraph 3 of the Covenant but must also themselves be compatible with the provisions, aims and objectives of the Covenant. Laws must not violate the non-discrimination provisions of the Covenant. Laws must not provide for penalties that are incompatible with the Covenant, such as corporal punishment. ¶27. It is for the State party to demonstrate the legal basis for any restrictions imposed on freedom of expression. If, with regard to a particular State party, the Committee has to consider whether a particular restriction is imposed by law, the State party should provide details of the law and of actions that fall within the scope of the law.

[18.32] On the requirement that limitations to freedom of expression be ‘provided by law’,20 the HRC said in General Comment 34: ¶24. Restrictions must be provided by law. Law may include laws of parliamentary privilege and laws of contempt of court. Since any restriction on freedom of expression constitutes a serious curtailment of human rights, it is not compatible with the Covenant for a restriction to be enshrined in traditional, religious or other such customary law. ¶25. For the purposes of paragraph 3, a norm, to be characterized as a ‘law’, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not.

[18.33] On the requirement of necessity, the HRC stated in General Comment 34: ¶33. Restrictions must be ‘necessary’ for a legitimate purpose. . . . ¶34. Restrictions must not be overbroad. The Committee observed in general comment No. 27 that ‘restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected . . . The principle of proportionality has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law’ [12.28]. The principle of proportionality must also take account of the form of expression at issue as well as the means of its dissemination. For instance, the value placed by the Covenant upon uninhibited expression is particularly high in the circumstances of public debate in a democratic society concerning figures in the public and political domain.21

[18.34] In General Comment 34, the HRC made clear that restrictions on free expression must be legitimate in the particular circumstances in which they apply. That is, they are not only relevant to the legal measure in question, but to the application of that legal measure:

See also Toktakunov v Kyrgysztan (1470/06), para 7.6 [18.26]. See also separate opinion of Mrs Evatt, Mrs Quiroga Medina, and Mr Klein in Faurisson v France (550/93). 20 21

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¶35. When a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.22

[18.35] Finally, the HRC confirms that it retains independent authority to judge whether a restriction on freedom of expression complies with article 19(3); it does not have to defer to the judgment of the State. ¶36. The Committee reserves to itself an assessment of whether, in a given situation, there may have been circumstances which made a restriction of freedom of expression necessary. In this regard, the Committee recalls that the scope of this freedom is not to be assessed by reference to a ‘margin of appreciation’ and in order for the Committee to carry out this function, a State party, in any given case, must demonstrate in specific fashion the precise nature of the threat to any of the enumerated grounds listed in paragraph 3 that has caused it to restrict freedom of expression.23

Rights of Others [18.36] In article 19(3), it is expressly recognized that the exercise of freedom of expression ‘carries with it special duties and responsibilities’, and therefore permits various limitations to the right. Article 19(3) concedes that one’s freedom of expression can clash with another’s exercise of other equally important rights.24 For example, freedom of expression can be limited by proportionate laws regarding defamation (which protect article 17 privacy rights and the ‘reputations of others’) and sub judice rules on pre-trial reporting (which preserve the fair administration of justice under article 14). [18.37]

GENERAL COMMENT 34

¶28. The first of the legitimate grounds for restriction listed in paragraph 3 is that of respect for the rights or reputations of others. The term ‘rights’ includes human rights as recognized in the Covenant and more generally in international human rights law. For example, it may be legitimate to restrict freedom of expression in order to protect the right to vote under article 25, as well as rights article under 17. . . . Such restrictions must be constructed with care: while it may be permissible to protect voters from forms of expression that constitute intimidation or coercion,25 such restrictions must not impede political debate, including, for example, calls for the boycotting of a non-compulsory vote.26 The term ‘others’ relates to other persons individually or as members of a community. Thus, it may, for instance, refer to individual members of a community defined by its religious faith or ethnicity.

[18.38] Therefore, the HRC has confirmed that ‘rights’ refers to other human rights, though not necessarily those in the ICCPR. A human right of freedom of See eg Shin v Republic of Korea (926/00). See also [1.77]. 24 The limited grant of freedom of expression in art 19 may be contrasted with the stronger express right in the First Amendment to the US Bill of Rights. 25 See also [22.33]. 26 See Svetik v Belarus (927/00) and Shchetko v Belarus (1009/01). 22 23

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expression should not be subject to qualification by a lesser right, such as a bare municipal legal right. [18.39]

BALLANTYNE et al v CANADA (359, 385/89)

The facts of this case are outlined immediately below: ¶1. The authors of the communications . . . are John Ballantyne, Elizabeth Davidson and Gordon McIntyre, Canadian citizens residing in the Province of Quebec. The authors, one a painter, the second a designer and the third an undertaker by profession, have their businesses in Sutton and Huntingdon, Quebec. Their mother tongue is English, as is that of many of their clients. They allege to be victims of violations of articles 2, 19, 26 and 27 of the International Covenant on Civil and Political Rights by the Federal Government of Canada and by the Province of Quebec, because they are forbidden to use English for purposes of advertising, e.g., on commercial signs outside the business premises, or in the name of the firm.

The Quebec government, in arguments submitted through the Canadian government to the HRC,27 unsuccessfully argued that commercial speech was not protected by article 19 [18.10]. Quebec also argued that the measures were necessary to protect Quebec’s francophile culture. ¶8.7. The Government of Quebec points out that in the linguistic sphere, the notion of de facto equality precludes purely formal equality and makes it necessary to accord different treatment in order to arrive at a result that restores the balance between different situations. It contends that the Charter of the French Language, as amended by Bill 178, ‘is a measured legislative response to the particular circumstances of Quebec’s society, for which, in the North American context and in the face of the domination of the English language and the ensuing cultural, socio-economic and political pressures, ‘francification’ (‘Frenchification’) is still in an exposed position’. ¶8.8. The requirements of Sections 58 and 68 of Bill 178 are said to be deliberately limited to the sphere of external public and commercial advertising, because it is there that the symbolic value of the language as a means of collective identification is strongest and contributes most to preserving the cultural identity of French speakers: ‘the linguistic image communicated by advertising is an important factor that contributes to shaping habits and behaviour which perpetuate or influence the use of a language’. Quebec concludes on this point that Bill 178 strikes a delicate balance between two linguistic communities, one of which is in a dominant demographic position both nationally and on the continent as a whole. This aim is said to be reasonable and compatible with article 26 of the Covenant.28 ¶8.9. Quebec adds that the historical background and the fact that the evolution of linguistic relations in Canada constitutes a political compromise do not justify the conclusion that the requirement to carry out external commercial advertising in a certain way amounts to a violation of article 19.

The HRC nevertheless found that the Quebec law constituted a breach of article 19:29

27

See also [1.29] on the application of the ICCPR in federal States. See generally [23.89]ff. Mr Ndiaye dissented on the basis that the Quebec laws supported minority rights; his dissent is excerpted at [24.51]. 28 29

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¶11.4. Any restriction of the freedom of expression must cumulatively meet the following conditions: it must be provided for by law, it must address one of the aims enumerated in paragraph 3(a) and (b) of article 19, and must be necessary to achieve the legitimate purpose. While the restrictions on outdoor advertising are indeed provided for by law, the issue to be addressed is whether they are necessary for the respect of the rights of others. The rights of others could only be the rights of the francophone minority within Canada under article 27. This is the right to use their own language, which is not jeopardised by the freedom of others to advertise in other than the French language. Nor does the Committee have reason to believe that public order would be jeopardised by commercial advertising outdoors in a language other than French. The Committee notes that the State party does not seek to defend Bill 178 on these grounds. Any constraints under paragraphs 3(a) and 3(b) of article 19 would in any event have to be shown to be necessary. The Committee believes that it is not necessary, in order to protect the vulnerable position in Canada of the francophone group, to prohibit commercial advertising in English. This protection may be achieved in other ways that do not preclude the freedom of expression, in a language of their choice, of those engaged in such fields as trade. For example, the law could have required that advertising be in both French and English. A State may choose one or more official languages, but it may not exclude, outside the spheres of public life, the freedom to express oneself in a language of one’s choice. The Committee accordingly concludes that there has been a violation of article 19, paragraph 2.

[18.40] In Ballantyne, the HRC did not deny that preservation of the French language was a legitimate legislative objective. In this case, however, the HRC noted that francophone culture could be preserved by a requirement of dual-language signage, rather than restrictions on non-French languages. The Committee’s decision therefore indicates that minimum impairment of freedom of expression is an element of the test of proportionality and therefore the validity of restrictions on article 19 rights.30 [18.41] The Ballantyne case may be distinguished from Guesdon v France (219/86) [18.12] in that it concerned restrictions on the use of language in the private as opposed to public spheres.31 Restrictions on the use of one’s language for private purposes, such as commercial signage, is rarely permissible under article 19, whereas restrictions on the ‘public’ use of a language, such as in court proceedings, may occasionally be justified, for example, for reasons of public order. [18.42] In Diergaardt v Namibia (760/97), one of the complaints concerned the exclusive use of English for administrative matters in Namibia. That exclusivity extended to all correspondence, including telephone calls. The majority found a violation of article 26 (freedom from discrimination) [23.61] and did not mention article 19. Four concurring HRC members (Evatt, Klein, Kretzmer, and Medina Quiroga) found that those facts gave rise to a breach of article 19(2), as the authors’ freedom to receive information had been restricted. 30 The doctrine of minimum impairment is used in Canadian constitutional law in interpreting limitations to Charter rights: see eg R v Big M Drug Mart [1985] 1 SCR 295 at 352, and R v Oakes [1986] 26 DLR (4d) 200 at 227 (decisions of the Canadian Supreme Court). 31 See F De Varennes, ‘Language and Freedom of Expression’ (1994) 16 HRQ 163 at 178–9. However, see [24.46]ff.

Freedom of Expression [18.43]

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JONG-CHEOL v REPUBLIC of KOREA (968/01)

The author was convicted of conducting an opinion poll on a presidential election which was banned under law. He was fined the equivalent of US$445. The relevant law banned polling within 23 days of the election. The State Party justified its law thus: ¶4.1. . . . [The State party] invokes to the Constitutional Court’s decision, which considered that restrictions on the publication of public opinion poll information for the time necessary to guarantee a fair election does not constitute a violation of either the Constitution or the Covenant. . . . It argues that the guarantee of fair elections is an integral part of public order in a democratic society. The length of the period of restriction cannot be considered as excessive or discriminatory. ¶4.2. The State party submits that the Constitutional Court’s reasoning is not based on theory or possibility, but on the country’s own experience. It takes into account how vulnerable the election culture and climate have been to political manipulation and irregularities in the Republic of Korea in the past. Unfairly or partially-manipulated public opinion poll results released prior to an election have often affected the choices of voters, thus jeopardizing a fair election. Nevertheless, the State party submits that over time, once the political climate has matured, the ban on the publication of public opinion poll results could be lifted. . . . ¶6.1. . . . [T]he State party recalls that the Election Act is designed to ensure that public elections are fairer by preventing them from being adversely affected by biased or manipulated public opinion polls, thereby influencing voters with incorrect information. Even if conducted in a fair and objective manner, such polls can influence voters through the ‘bandwagon’ and ‘underdog’ effects. ¶6.2. While acknowledging that abuse of power by some political actors has in the past undermined the quest for fair elections, the State party denies that the government is responsible for the current election culture. Today’s media has grown in terms of social and political power that has crucial effects on opinion making, especially on elections. Under the Election Law, the Government has a legal duty to improve the electoral culture by preventing interference with the election outcomes by publication of incorrect opinion poll results by the media. Finally, it submits that it does not have to prove the harm done by the publication of public opinion polls in each individual case to justify enforcement of the law.

The author responded: ¶5. . . . [T]he author commented on the State party’s submission, stating that there is no connection between his reporting of the public opinion polls and the so called, ‘political manipulation and irregularities’ concerning the election, and that it was the government itself that was responsible for creating an the ‘election culture and climate’ that was ‘vulnerable to political manipulation and irregularities’. In his view, such manipulation was made possible partly because the government had imposed restrictions on the freedom of expression and free access to information in relation to elections. The State party has not explained what kind of harm the author had caused by reporting the results of the poll and how the ban was related to the desire to ensure a fair election. It also did not make the necessary connection between the punishment of the author and the grounds on the restriction of the right to freedom of expression stipulated in the Covenant.

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The ICCPR

The HRC found that there was no breach of article 19: ¶8.3. . . . The restrictions were provided for by law, under Section 108(1) of the Election for Public Office and Election Malpractice Prevention Act. As to whether the measures addressed one of the aims enumerated in paragraph 3, the Committee notes that the State party maintains that the restriction is justified in terms of the protection of public order . . . . The Committee considers that, to the extent that the restriction relates to the rights of Presidential candidates, this restriction may also fall within the terms of article 19, paragraph 3 (a) (necessary for the respect of the rights of others). The Committee notes the underlying reasoning for such a restriction is based on the wish to provide the electorate with a limited period of reflection, during which they are insulated from considerations extraneous to the issues under contest in the elections, and that similar restrictions can be found in many jurisdictions. The Committee also notes the recent historical specificities of the democratic political processes of the State party, including those invoked by the State party. Under such circumstances, a law restricting the publication of opinion polls for a limited period in advance of an election does not seem ipso facto to fall outside the aims contemplated in article 19, paragraph 3. As to the issue of proportionality, the Committee notes that, while a cut-off date of 23 days prior to the election is unusually long, it need not pronounce itself on the compatibility per se of the cut-off date with article 19, paragraph 3, since the author’s initial act of publishing previously unreported opinion polls took place within seven days of the election. The author’s conviction for such publication cannot be considered excessive in the context of the conditions obtaining in the State party. The Committee also notes that the sanction visited on the author, albeit one of criminal law, cannot be categorized as excessively harsh. It is not, therefore, in a position to conclude that the law, as applied to the author, is disproportionate to its aim. Accordingly, the Committee does not find a violation of article 19 of the Covenant in this regard.

This decision does not resemble the strong protection of free speech endorsed by the HRC in other cases concerning South Korea.32 The majority, for example, failed to outline the relevant ‘rights’ of presidential candidates that might be affected by polling proximate to an election. Furthermore, it is arguable that the majority was wrong in finding that the application of the law was permissible here, as the relevant poll was taken within six days of an election, as the relevant law itself seemed disproportionate in banning polls 23 days out from the election. A significant minority of seven HRC members dissented and found a violation of article 19. Reputations of Others [18.44] The most obvious limitations to free speech that might be justifiable by reference to the ‘reputations’ of others are laws concerning defamation and libel. GENERAL COMMENT 34 ¶47. Defamation laws must be crafted with care to ensure that they comply with paragraph 3, and that they do not serve, in practice, to stifle freedom of expression.33 All such laws, in particular penal defamation laws, should include such defences as the defence of truth and they should not be applied with regard to those forms of expression that are not, of 32 33

See [18.51] and [18.52]. See also Concluding Observations on Albania (2004) UN doc CCPR/CO/82/ALB, para 19.

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their nature, subject to verification. At least with regard to comments about public figures, consideration should be given to avoiding penalizing or otherwise rendering unlawful untrue statements that have been published in error but without malice. In any event, a public interest in the subject matter of the criticism should be recognized as a defence. Care should be taken by States parties to avoid excessively punitive measures and penalties. Where relevant, States parties should place reasonable limits on the requirement for a defendant to reimburse the expenses of the successful party. States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.34 It is impermissible for a State party to indict a person for criminal defamation but then not to proceed to trial expeditiously—such a practice has a chilling effect that may unduly restrict the exercise of freedom of expression of the person concerned and others.

[18.45]

MARQUES de MORAIS v ANGOLA (1128/02)

The author was imprisoned and subjected to other penalties over articles he wrote which were criticial of the President of Angola. The HRC found a breach of Article 19: ¶6.7. . . . The Committee reiterates that the right to freedom of expression in article 19, paragraph 2, includes the right of individuals to criticize or openly and publicly evaluate their Governments without fear of interference or punishment. ¶6.8. . . . The Committee notes that the author’s final conviction was based on Article 43 of the Press Law, in conjunction with Section 410 of the Criminal Code. Even if it were assumed that his arrest and detention, or the restrictions on his travel, had a basis in Angolan law, and that these measures, as well as his conviction, pursued a legitimate aim, such as protecting the President’s rights and reputation or public order, it cannot be said that the restrictions were necessary to achieve one of these aims. The Committee observes that the requirement of necessity implies an element of proportionality, in the sense that the scope of the restriction imposed on freedom of expression must be proportional to the value which the restriction serves to protect. Given the paramount importance, in a democratic society, of the right to freedom of expression and of a free and uncensored press or other media, the severity of the sanctions imposed on the author cannot be considered as a proportionate measure to protect public order or the honour and the reputation of the President, a public figure who, as such, is subject to criticism and opposition. In addition, the Committee considers it an aggravating factor that the author’s proposed truth defence against the libel charge was ruled out by the courts. In the circumstances, the Committee concludes that there has been a violation of article 19.

[18.46]

ADONIS v PHILIPPINES (1815/08)

The author was a radio broadcaster who was sentenced to a term of imprisonment for criminal libel, entailed in an allegation that a congressman was having an affair. The relevant libel law was very strict. For example, truth was not a defence in the circumstances as the relevant statement did not concern a politician’s actual 34 See also Concluding Observations on Italy (2006) UN doc CCPR/C/ITA/CO/5, para 19; Poland (2010) UN doc CCPR/C/POL/CO/6, para 22.

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political work. The HRC found that the Filipino law was too harsh, and that there was therefore a breach of article 19:35 ¶7.7. The Committee takes note of the author’s allegation that his conviction for defamation under the Philippine Penal Code constitutes an illegitimate restriction of his right to freedom of expression because it does not conform to the standards set by article 19, paragraph 3, of the Covenant. The author maintains, in particular, that the criminal sanction of imprisonment established by the Philippine Revised Penal Code for libel is neither necessary nor reasonable, because of the following reasons: (a) there are less severe sanctions available; (b) it admits no proof of truth as a defence except for very limited cases; (c) it does not take into account the public interest as a defence; or (d) it presumes malice in the allegedly defamatory statements placing the burden of proof on the accused. . . . ¶7.10. In light of the above, the Committee considers that, in the present case the sanction of imprisonment imposed on the author was incompatible with article 19, paragraph 3, of the Covenant.

[18.47] The HRC has also expressed concern over the libel laws in the United Kingdom:36 ¶25. The Committee is concerned that the State party’s practical application of the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as ‘libel tourism’. The advent of the internet and the international distribution of foreign media also create the danger that a State party’s unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest (art. 19). The State party should re-examine its technical doctrines of libel law, and consider the utility of a so-called ‘public figure’ exception, requiring proof by the plaintiff of actual malice in order to go forward on actions concerning reporting on public officials and prominent public figures, as well as limiting the requirement that defendants reimburse a plaintiff’s lawyers fees and costs regardless of scale, including Conditional Fee Agreements and so-called ‘success fees’, especially insofar as these may have forced defendant publications to settle without airing valid defences. The ability to resolve cases through enhanced pleading requirements (e.g., requiring a plaintiff to make some preliminary showing of falsity and absence of ordinary journalistic standards) might also be considered.

National Security [18.48] ‘National security’ is invoked as a limitation when the political independence or the territorial integrity of the State is at risk.37 Common national security restrictions include prohibitions on the transmission of ‘official secrets’.

35 See also Bodrozic v Serbia (1180/03) and Sama v Germany (1771/08), especially the dissent of Mrs Wedgwood. 36 (2008) UN doc CCPR/C/GBR/CO/6. 37 See ‘Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’ (1985) 7 HRQ 3, 6.

Freedom of Expression [18.49]

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GENERAL COMMENT 34

¶30. Extreme care must be taken by States parties to ensure that treason laws38 and similar provisions relating to national security, whether described as official secrets or sedition laws or otherwise, are crafted and applied in a manner that conforms to the strict requirements of paragraph 3.39 It is not compatible with paragraph 3, for instance, to invoke such laws to suppress or withhold from the public information of legitimate public interest that does not harm national security or to prosecute journalists,40 researchers, environmental activists, human rights defenders, or others, for having disseminated such information. Nor is it generally appropriate to include in the remit of such laws such categories of information as those relating to the commercial sector, banking and scientific progress. . . . ¶46. States parties should ensure that counter-terrorism measures are compatible with paragraph 3. Such offences as ‘encouragement of terrorism’41 and ‘extremist activity’ as well as offences of ‘praising’, ‘glorifying’, or ‘justifying’ terrorism, should be clearly defined to ensure that they do not lead to unnecessary or disproportionate interference with freedom of expression. Excessive restrictions on access to information must also be avoided. . . .

[18.50]

AK and AR v UZBEKISTAN (1233/03)

The authors were convicted of involvement in a terrorist group, including the dissemination of its philosophy. The HRC exhibited considerable deference to local court proceedings and decisions in finding no breach of article 19: ¶7.2. The Committee notes that the authors were convicted of offences related to the dissemination of the ideology propagated by Hizb ut-Tahrir. The issue before the Committee is whether the restrictions that the convictions represented were necessary for one of the purposes listed in article 19, paragraph 3. The Committee has carefully studied the report of the group of experts . . . , the judgment of the Samarkand Regional Criminal Court and the appellate Ruling of the Criminal Division of the Supreme Court of Uzbekistan. From these, it is apparent that the courts, while not explicitly addressing article 19 of the Covenant, were concerned with a perceived threat to national security (violent overthrow of the constitutional order) and to the rights of others. The Committee also notes the careful steps, in particular the consultation with the group of experts, engaged in by the judicial process. Moreover, the Committee takes account of the fact that, on appeal, A. K. appears not to have challenged his conviction, but rather appealed for a fairer sentence, while A. R. accepted his conviction under article 216. Under these circumstances, the Committee cannot conclude that the restrictions imposed on the authors’ expression were incompatible with article 19, paragraph 3.

[18.51]

KIM v REPUBLIC OF KOREA (574/94)

The author complained of his conviction under the ‘National Security Law’ for expressing opinions sympathetic to an ‘anti-State organization’, namely the

38

Concluding Observations on Hong Kong (2006) UN doc CCPR/C/HKG/CO/2. See Concluding Observations on the United Kingdom (2008) UN doc CCPR/C/GBR/CO/6, para 24. 40 See Concluding Observations on Rwanda (2009) UN doc CCPR/C/RWA/CO/3, para 20. 41 See Concluding Observations on the United Kingdom (2008) UN doc CCPR/C/GBR/CO/6, para 26. 39

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Democratic People’s Republic of Korea (North Korea). The State Party provided justifications for the author’s conviction: ¶10.4. With regard to counsel’s argument that the State party has failed to establish that a relation between the author and North Korea existed and that his actions were a serious threat to national security, the State party points out that North Korea has attempted to destabilise the country by calling for the overthrow of South Korea’s ‘military-fascist regime’ in favour of a ‘people’s democratic government’, which would bring about ‘unification of the fatherland’ and ‘liberation of the people’. In the documents, distributed by the author, it was argued that the Government of South Korea was seeking the continuation of the country’s division and dictatorial regime; that the Korean people had been struggling for the last half century against US and Japanese neo-colonial influence, which aims at the continued division of the Korean peninsula and the oppression of the people; that nuclear weapons and American soldiers should be withdrawn from South Korea, since their presence posed a great threat to national survival and to the people; and that joint military exercises between South Korea and the USA should be stopped. ¶10.5. The State party submits that it is seeking peaceful unification, and not the continuation of the division as argued by the author. The State party further takes issue with the author’s subjective conviction about the presence of US forces and US and Japanese influence. It points out that the presence of US forces has been an effective deterrent to prevent North Korea from making the peninsula communist through military force. ¶10.6. According to the State party, it is obvious that the author’s arguments are the same as that of North Korea, and that his activities thus both helped North Korea and followed its strategy and tactics. The State party agrees that democracy means allowing different voices to be heard but argues that there should be a limit to certain actions so as not to cause damage to the basic order necessary for national survival. The State party submits that it is illegal to produce and distribute printed materials that praise and promote North Korean ideology and further its strategic objective to destroy the free and democratic system of the Republic of Korea. It argues that such activities, directed at furthering these violent aims, cannot be construed as peaceful.

The HRC majority found in favour of the author:42 ¶12.4. The Committee notes that the author was convicted for having read out and distributed printed material which were seen as coinciding with the policy statements of the DPRK (North Korea), with which country the State party was in a state of war. He was convicted by the courts on the basis of a finding that he had done this with the intention of siding with the activities of the DPRK. The Supreme Court held that the mere knowledge that the activity could be of benefit to North Korea was sufficient to establish guilt. Even taking that matter into account, the Committee has to consider whether the author’s political speech and his distribution of political documents were of a nature to attract the restriction allowed by article 19 (3) namely the protection of national security. It is plain that North Korean policies were well known within the territory of the State party and it is not clear how the (undefined) ‘benefit’ that might arise for the DPRK from the publication of views similar to their own created a risk to national security, nor is it clear what was the nature and extent of any such risk. There is no indication that the courts, at any level, addressed

42

See also the similar case of Park v Republic of Korea (628/95), paras 10.3–10.4.

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those questions or considered whether the contents of the speech or the documents had any additional effect upon the audience or readers such as to threaten public security, the protection of which would justify restriction within the terms of the Covenant as being necessary. ¶12.5. The Committee considers, therefore, that the State party has failed to specify the precise nature of the threat allegedly posed by the author’s exercise of freedom of expression, and that the State party has not provided specific justifications as to why over and above prosecuting the author for contraventions of the Law on Assembly and Demonstration and the Law on Punishment of Violent Activities (which forms no part of the author’s complaint), it was necessary for national security, also to prosecute the author for the exercise of his freedom of expression. The Committee considers therefore that the restriction of the author’s right to freedom of expression was not compatible with the requirements of article 19, paragraph 3, of the Covenant.43

[18.52]

SOHN v REPUBLIC OF KOREA (518/92)

The author in this case was arrested for interference in a labour dispute. The facts are outlined below: ¶2.1. The author has been president of the Kumho Company Trade Union since 27 September 1990 and is a founding member of the Solidarity Forum of Large Company Trade Unions. On 8 February 1991, a strike was called at the Daewoo Shipyard Company at Guhjae Island in the province of Kyungsang-Nam-Do. The Government announced that it would send in police troops to break the strike. Following that announcement, the author had a meeting, on 9 February 1991, with other members of the Solidarity Forum, in Seoul, 400 kilometres from the place where the strike took place. At the end of the meeting they issued a statement supporting the strike and condemning the Government’s threat to send in troops. That statement was transmitted to the workers at the Daewoo Shipyard by facsimile. The Daewoo Shipyard strike ended peacefully on 13 February 1991. ¶2.2. On 10 February 1991, the author, together with some 60 other members of the Solidarity Forum, was arrested by the police when leaving the premises where the meeting had been held. On 12 February 1991, he and six others were charged with contravening article 13(2) of the Labour Dispute Adjustment Act (Law No. 1327 of 13 April 1963, amended by Law No. 3967 of 28 November 1987), which prohibits others than the concerned employer, employees or trade union, or persons having legitimate authority attributed to them by law, to intervene in a labour dispute for the purpose of manipulating or influencing the parties concerned. . . .

The author was convicted of an offence under article 13(2) of the Labour Dispute Adjustment Act. ¶3.1. The author argues that article 13(2) of the Labour Dispute Adjustment Act is used to punish support for the labour movement and to isolate the workers. He argues that the provision has never been used to charge those who take the side of management in a labour dispute. He further claims that the vagueness of the provision, which prohibits any act to influence the parties, violates the principle of legality (nullum crimen, nulla poena sine lege). 43 The Kim decision is further supported in Concluding Observations on the Republic of Korea (1999) UN doc CCPR/C/79/Add.114, para 9.

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¶3.2. The author further argues that the provision was incorporated into the law to deny the right to freedom of expression to supporters of labourers or trade unions. In this respect, he makes reference to the Labour Union Act, which prohibits third party support for the organisation of a trade union. He concludes that any support to labourers or trade unions may thus be punished, by the Labour Dispute Adjustment Act at the time of strikes and by the Labour Union Act at other times.

The State Party submitted its defence of the impugned provisions: ¶9.1. By further submission of 20 June 1995, the State party explains that the labour movement in the Republic of Korea can be generally described as being politically oriented and ideologically influenced. In this connection it is stated that labour activists in Korea do not hesitate in leading workers to extreme actions by using force and violence and engaging in illegal strikes in order to fulfil their political aims or carry out their ideological principles. Furthermore, the State party argues that there have been frequent instances where the idea of a proletarian revolution has been implanted in the minds of workers. . . . ¶9.3. Moreover, the State party submits that in the instant case, the written statement distributed in February 1991 to support the Daewoo Shipyard Trade Union was used as a disguise to incite a nation-wide strike of all workers. The State party argues that ‘in the case where a national strike would take place, in any country, regardless of its security situation, there is considerable reason to believe that the national security and public order of the nation would be threatened.’

The HRC found in favour of Mr Sohn: ¶10.4. . . . While the State party has stated that the restrictions were justified in order to protect national security and public order and that they were provided for by law, under article 13(2) of the Labour Dispute Adjustment Act, the Committee must still determine whether the measures taken against the author were necessary for the purpose stated. The Committee notes that the State party has invoked national security and public order by reference to the general nature of the labour movement and by alleging that the statement issued by the author in collaboration with others was a disguise for the incitement to a national strike. The Committee considers that the State party has failed to specify the precise nature of the threat which it contends that the author’s exercise of freedom of expression posed and finds that none of the arguments advanced by the State party suffice to render the restriction of the author’s right to freedom of expression compatible with paragraph 3 of article 19. ¶11. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, finds that the facts before it disclose a violation of article 19, paragraph 2, of the Covenant.

[18.53]

MA v ITALY (117/81)

The facts are outlined immediately below: ¶1.2. The alleged victim is M. A. who at the time of submission was serving a sentence upon conviction of involvement in ‘reorganising the dissolved fascist party’, which is prohibited by an Italian penal law of 20 June 1952. By order of the Court of Appeals of Florence, M. A., was conditionally released and placed under mandatory supervision on 29 July 1983.

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¶1.3. The authors do not specify which articles of the Covenant have allegedly been violated. It is generally claimed that M. A. was condemned to prison solely for his ideas and that he has been deprived of the right to profess his political beliefs.

The HRC found M.A.’s claim inadmissible: ¶13.3. . . . [I]t would appear to the Committee that the acts of which M. A. was convicted (reorganising the dissolved fascist party) were of a kind which are removed from the protection of the Covenant by article 5 thereof and which were in any event justifiably prohibited by Italian law having regard to the limitations and restrictions applicable to the rights in question under the provisions of articles 18 (3), 19 (3), 22 (2) and 25 of the Covenant. In these respects therefore the communication is inadmissible under article 3 of the Optional Protocol, as incompatible with the provisions of the Covenant, ratione materiae.

Article 5 prohibits interpretation of the ICCPR in such a way as to grant rights for people to engage in activities aimed at the destruction or limitation of the ICCPR rights of others. The HRC should have sought more information on the actual activities of the new Italian fascist party before condoning the prohibition of those activities. Italy had submitted only that the fascist party wished to ‘eliminate democratic freedoms and establish a totalitarian regime’.44 The HRC did not address M.A.’s allegation that the law was applied in a discriminatory way, being exclusively aimed at right-wing organizations, rather than all ‘anti-democratic’ parties, such as anarchists and Leninists.45 [18.54] The distinct lack of sympathy evinced for the author in MA v Italy (117/81) may be contrasted with the decisions in Kim v Republic of Korea (574/94) [18.51] and Sohn v Republic of Korea (518/92) [18.52]. Is the HRC possibly more tolerant of left-wing anti-democratic views than of right-wing fascist views? Public Order [18.55]

GENERAL COMMENT 34

¶31. On the basis of maintenance of public order (ordre public) it may, for instance, be permissible in certain circumstances to regulate speech-making in a particular public place. Contempt of court proceedings relating to forms of expression may be tested against the public order (ordre public) ground.46 In order to comply with paragraph 3, such proceedings and the penalty imposed must be shown to be warranted in the exercise of a court’s power to maintain orderly proceedings. Such proceedings should not in any way be used to restrict the legitimate exercise of defence rights.

[18.56] ‘Public order’ is a broader concept than national security and may be defined as the sum of rules which ensure the peaceful and effective functioning of society.47 ‘Ordre public’ is the equivalent French concept, but it is not an exact

44

At para 7.2. See para 9(b). This allegation could have raised issues under the Covenant’s non-discrimination provisions, arts 2(1) and 26. 46 See Dissanayake v Sri Lanka (1373/05), para 8.4. 47 See ‘Siracusa Principles’. 45

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translation, as it seems to apply more in the private law sphere than does the common law notion of public order.48 The concept of ordre public therefore seems to have a broader ambit than the concept of ‘public order’. However, it does not appear that the extra depth implied within the notion of ordre public has had any effect on an outcome in an OP case. [18.57] Common ‘public order’ limitations on article 19 rights include prohibitions on speech which may incite crime, violence, or mass panic. Prohibition of mass broadcasting without a licence may also be justified as a public order measure to prevent confusion of signals and blockage of the airwaves.49 [18.58]

COLEMAN v AUSTRALIA (1157/03)

The author delivered public speeches without a permit in a public mall in Queensland, and was convicted and sentenced under council by-laws to short periods in prison. He claimed a breach of article 19(2). The State Party justified the laws thus: ¶4.5. . . . The State party argues that the restriction on speech is plainly provided for by law in the form of the bylaw. The town council adopted a policy in relation to the mall in question in April 1983, approving use of the mall for public forums and being designed to maximise the use of the mall for public benefit without unduly affecting public enjoyment of the area. The permit system allows the council to consider whether a proposal is likely to impact on the public amenity enjoyed by small number of users (such as undue noise, crowding, impact on commercial activity or safety hazards). The restrictions in place were aimed at orderly use of the mall by the public as a whole. In any event, the State party notes that the permit system is not required for the use of booths or meetings, as exempted in section 8(1) of the bylaw (see footnote 1). Thus, there is no a blanket restriction on the right to freedom of expression.

The HRC found that there was a breach of article 19: ¶7.3. The Committee notes that it is for the State party to show that the restriction on the author’s freedom of speech was necessary in the present case. Even if a State party may introduce a permit system aiming to strike a balance between an individual’s freedom of speech and the general interest in maintaining public order in a certain area, such a system must not operate in a way that is incompatible with article 19 of the Covenant. In the present case, the author made a public address on issues of public interest. On the evidence of the material before the Committee, there was no suggestion that the author’s address was either threatening, unduly disruptive or otherwise likely to jeopardise public order in the mall; indeed, police officers present, rather than seeking to curtail the author’s address, allowed him to proceed while videotaping him. The author delivered his speech without a permit. For this, he was fined and, when he failed to pay the fine, he was held in custody for five days. The Committee considers that the State party’s reaction in response to the author’s conduct was disproportionate and amounted to a restriction of the author’s 48 B Lockwood Jr, J Finn, and G Jubinsky, ‘Working Paper for the Committee of Experts on Limitation Provisions’ (1985) 7 HRQ 35, 57–9. For example, ordre public may be used to negate private law contracts ‘in the interest of higher imperatives’; ‘public order’ is not used in the same way in common law jurisdictions. 49 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 465.

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freedom of speech which was not compatible with article 19, paragraph 3, of the Covenant. It follows that there was a violation of article 19, paragraph 2, of the Covenant.

[18.59] Messrs Kälin, Ando, and O’Flaherty issued a concurring opinion which was more overtly sympathetic to the State’s permit system: While we concur in the result that the Committee has reached in this case, we reach that conclusion for different reasons than those employed by the majority. In our view, it is important to note the existence of a permit system in this case, which enables the State party’s authorities to strike a balance, consistent with the Covenant, between freedom of expression and countervailing interests. The author, however, in declining to seek a permit, accordingly deprived the State party’s authorities of the opportunity to reconcile the interests at issue in this particular case. We regret that the Committee has not weighed this aspect of the case in its reasoning. We would note, in addition, that the decision should not be read as a rejection of permit systems that are in place in many States parties to strike appropriate balances not only in the area of freedom of expression, but in other areas such as freedom of association and assembly. On the contrary, the establishment of such systems, in principle, is wholly consistent with the Covenant, and has additional advantages of fostering clarity, certainty and consistency, as well as providing an easier means of review by the local courts and in turn the Committee of a decision by the authorities to decline a particular exercise of the right, rather than being left, as in this case, with an assessment of the raw primary facts standing alone. It is of course clear that such a permit system must allow for full enjoyment of the right in question, and be administered consistently, impartially and sufficiently promptly. In this case, however, on the basis of the posture of the case as it is before the Committee, we would emphasise the following elements. The author’s arrest, fine and imprisonment for failure to pay the fine are, in combination, the State party’s response to the conduct engaged in by the author—in sum, these actions are a considerable infringement of the author’s right to freedom of expression which must be justified in the light of the requirements of article 19 of the Covenant. In our view, the totality of the State party’s action lies in such disproportion to the author’s original underlying conduct that we are not satisfied that the State party has shown the necessity of these restrictions on the author’s expression. The reasons advanced by the State party for the restriction, while wholly legitimate, are not in themselves sufficient to show their necessity in each case. It is the absence of the demonstration of the necessity in the present circumstances for the substantially punitive reaction of the State party to the author’s conduct that accordingly leads us to agree with the Committee’s eventual conclusion.

The minority found that the conviction and fine, rather than the permit system itself, breached article 19. It is open to question the circumstances in which a permit system is allowed as a prerequisite to the giving of a public speech. The majority did not clarify this point. [18.60]

MUKONG v CAMEROON (458/91)

The facts are outlined immediately below: ¶2.1. The author is a journalist, writer and longtime opponent of the one-party system in Cameroon. He has frequently and publicly advocated the introduction of multiparty democracy and has worked toward the establishment of a new political party in his country. He contends that some of the books that he has written were either banned or prohibited from circulation. . . .

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The author complained about a number of alleged violations of his ICCPR rights: ¶3.4. The author notes that his arrests on 16 June 1988 and 26 February 1990 were linked to his activities as an advocate of multiparty democracy, and claims that these were Government attempts designed to suppress any opposition activities, in violation of article 19 of the Covenant. This also applies to the Government’s ban, in 1985, of a book written by the author (‘Prisoner without a Crime’), in which he described his detention in local jails from 1970 to 1976.

The State Party sought to justify this apparent suppression of Mukong’s expression: ¶6.7. In this context, the State party argues that the arrest of the author was for activities and forms of expression which are covered by the limitation clause of article 19, paragraph 3, of the Covenant. It contends that the exercise of the right to freedom of expression must take into account the political context and situation prevailing in a country at any point in time: since the independence and reunification of Cameroon, the country’s history has been a constant battle to strengthen national unity, first at the level of the francophone and anglophone communities and thereafter at the level of the more than 200 ethnic groups and tribes that comprise the Cameroonian nation.

The HRC found in favour of the author: ¶9.6. The author has claimed a violation of his right to freedom of expression and opinion, as he was persecuted for his advocacy of multi-party democracy and the expression of opinions inimical to the State party’s government. The State party has replied that restrictions on the author’s freedom of expression were justified under the terms of article 19, paragraph 3. ¶9.7. . . . The State party has indirectly justified its actions on grounds of national security and/or public order, by arguing that the author’s right to freedom of expression was exercised without regard to the country’s political context and continued struggle for unity. While the State party has indicated that the restrictions on the author’s freedom of expression were provided for by law, it must still be determined whether the measures taken against the author were necessary for the safeguard of national security and/or public order. The Committee considers that it was not necessary to safeguard an alleged vulnerable state of national unity by subjecting the author to arrest, continued detention and treatment in violation of article 7. It further considers that the legitimate objective of safeguarding and indeed strengthening national unity under difficult political circumstances cannot be achieved by attempting to muzzle advocacy of multi-party democracy, democratic tenets and human rights; in this regard, the question of deciding which measures might meet the ‘necessity’ test in such situations does not arise. In the circumstances of the author’s case, the Committee concludes that there has been a violation of article 19 of the Covenant.

It is often argued that developing nations, by virtue of their economic underdevelopment, should be permitted to ‘postpone’ or ‘trade off’ their obligations to respect certain political rights. ‘This theory contends that the priority of economic development mandates political stability and thereby justifies violations of individual rights’.50 The HRC, in its Mukong decision, denies that underdevelopment can justify political repression and the imposition of one-party States [1.133]. 50 A Pollis, ‘Cultural Relativism Revisited: Through a State Prism’ (1996) 18 HRQ 316, 317. See also J Donnelly, ‘Human Rights and Development: Complementary or Competing Concerns?’ (1984) 36 World Politics 255, 258.

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621

GAUTHIER v CANADA (633/95)

The facts of this case are outlined immediately below: ¶2.1. The author is publisher of the National Capital News, a newspaper founded in 1982. The author applied for membership in the Parliamentary Press Gallery, a private association that administers the accreditation for access to the precincts of Parliament. He was provided with a temporary pass that gave only limited privileges. Repeated requests for equal access on the same terms as other reporters and publishers were denied. . . . ¶3. The author claims that the denial of equal access to press facilities in Parliament constitutes a violation of his rights under article 19 of the Covenant.

The State provided its justification for the situation in the following terms: ¶11.3. Press passes granting access to the media facilities of Parliament are issued to Gallery members only. The State party reiterates that the determination of membership in the Press Gallery is an internal matter. . . . It submits that as a member of the public, the author has access to the Parliament buildings open to the public and that he can attend the public hearings of the House of Commons. ¶11.4. In this connection, the State party reiterates that the proceedings of the House of Commons are broadcasted on television and that any journalist can report effectively on the proceedings in the House of Commons without using the media facilities of Parliament. The State party adds that the transcripts of the House debates can be found on the Internet the following day. Speeches and press releases of the Prime Minister are deposited in a lobby open to the public, and are also posted on the Internet. Government reports and press releases are likewise posted on the Internet. ¶11.5. The State party argues that the author has not been deprived of his freedom to receive and impart information. Although as a member of the public, he may not take notes while sitting in the Public Gallery of the House of Commons, he may observe the proceedings in the House and report on them. The State party explains that ‘Note-taking has traditionally been prohibited in the public galleries of the House of Commons as a matter of order and decorum and for security reasons (e.g. the throwing of objects at the members of Parliament from the gallery above)’. Moreover, the information he seeks is available through live broadcasting and the Internet. ¶11.6. Alternatively, the State party argues that any restriction on the author’s ability to receive and impart information that may result from the prohibition on note-taking in the public gallery in the House of Commons is minimal and is justified to achieve a balance between the right to freedom of expression and the need to ensure both the effective and dignified operation of Parliament and the safety and security of its members. According to the State party, states should be accorded a broad flexibility in determining issues of effective governance and security since they are in the best position to assess the risks and needs.

The HRC found in favour of the author on the merits: ¶13.4. In this connection, the Committee also refers to the right to take part in the conduct of public affairs, as laid down in article 25 of the Covenant, [which] implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion.’ General comment No. 25, paragraph 25, adopted by the Committee on 12 July 1996 [22.56]. Read together with article 19, this implies that citizens, in particular

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through the media, should have wide access to information and the opportunity to disseminate information and opinions about the activities of elected bodies and their members. The Committee recognises, however, that such access should not interfere with or obstruct the carrying out of the functions of elected bodies, and that a State party is thus entitled to limit access. However, any restrictions imposed by the State party must be compatible with the provisions of the Covenant. ¶13.5. In the present case, the State party has restricted the right to enjoy the publicly funded media facilities of Parliament, including the right to take notes when observing meetings of Parliament, to those media representatives who are members of a private organisation, the Canadian Press Gallery. The author has been denied active (i.e. full) membership of the Press Gallery. On occasion he has held temporary membership which has given him access to some but not all facilities of the organisation. When he does not hold at least temporary membership he does not have access to the media facilities nor can he take notes of Parliamentary proceedings. The Committee notes that the State party has claimed that the author does not suffer any significant disadvantage because of technological advances which make information about Parliamentary proceedings readily available to the public. The State party argues that he can report on proceedings by relying on broadcasting services, or by observing the proceedings. In view of the importance of access to information about the democratic process, however, the Committee does not accept the State party’s argument and is of the opinion that the author’s exclusion constitutes a restriction of his right guaranteed under paragraph 2 of article 19 to have access to information. The question is whether or not this restriction is justified under paragraph 3 of article 19. The restriction is, arguably, imposed by law, in that the exclusion of persons from the precinct of Parliament or any part thereof, under the authority of the Speaker, follows from the law of parliamentary privilege. ¶13.6. The State party argues that the restrictions are justified to achieve a balance between the right to freedom of expression and the need to ensure both the effective and dignified operation of Parliament and the safety and security of its members, and that the State party is in the best position to assess the risks and needs involved. As indicated above, the Committee agrees that the protection of Parliamentary procedure can be seen as a legitimate goal of public order and an accreditation system can thus be a justified means of achieving this goal. However, since the accreditation system operates as a restriction of article 19 rights, its operation and application must be shown as necessary and proportionate to the goal in question and not arbitrary. The Committee does not accept that this is a matter exclusively for the State to determine. The relevant criteria for the accreditation scheme should be specific, fair and reasonable, and their application should be transparent. In the instant case, the State party has allowed a private organisation to control access to the Parliamentary press facilities, without intervention. The scheme does not ensure that there will be no arbitrary exclusion from access to the Parliamentary media facilities. In the circumstances, the Committee is of the opinion that the accreditation system has not been shown to be a necessary and proportionate restriction of rights within the meaning of article 19, paragraph 3, of the Covenant, in order to ensure the effective operation of Parliament and the safety of its members. The denial of access to the author to the press facilities of Parliament for not being a member of the Canadian Press Gallery Association constitutes therefore a violation of article 19(2) of the Covenant. ¶13.7. In this connection, the Committee notes that there is no possibility of recourse, either to the Courts or to Parliament, to determine the legality of the exclusion or its necessity for the purposes spelled out in article 19 of the Covenant. The Committee recalls that under article 2, paragraph 3 of the Covenant, States parties have undertaken to ensure that

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any person whose rights are violated shall have an effective remedy, and that any person claiming such a remedy shall have his right thereto determined by competent authorities. Accordingly, whenever a right recognised by the Covenant is affected by the action of a State agent there must be a procedure established by the State allowing the person whose right has been affected to claim before a competent body that there has been a violation of his rights. ¶14. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political rights, is of the view that the facts before it disclose a violation of article 19, paragraph 2, of the Covenant.

[18.62] In Baban v Australia (1014/01), the author had been a detainee in an immigration detention facility. He claimed that his forced removal from one detention facility to another, as punishment for his participation in a hunger strike, was a breach of article 19(1). The HRC found that the removal complied with article 19(3) owing to concerns about the danger posed by the hunger strike to ‘the health and safety of detainees, including young children’.51 [18.63] ‘Public order’ is usually pleaded in the broader context of protecting order in society within the whole State. However, in Gauthier and Baban, ‘public order’ was pleaded by the State, with success in the latter case, in the limited context of protecting order within the confines of the federal Parliament building, and within a detention facility. [18.64] The above cases indicate that the HRC is reluctant to allow restrictions on free expression for the purposes of national security and public order, at least in the absence of detailed justifications by the State Party.52 National security and public order are perhaps the limitations which are most often abused; they are often invoked to protect the elite position of the government of the day, rather than to truly protect the rights of a State’s population.53 Public Health and Morals [18.65] No article 19 cases have addressed the limitation of ‘public health’. Presumably this limitation will be interpreted in conformity with its interpretation regarding other ICCPR rights.54 Nowak suggests that the prohibition of misinformation about health-threatening activities and restrictions on the advertising of harmful substances such as tobacco are probably justified under this limitation.55 [18.66]

GENERAL COMMENT 34

¶32. The Committee observed in general comment No. 22, that ‘the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations . . . for the 51

At para 6.7. See also Shin v Republic of Korea (926/00). Contrast the decision of VMRB v Canada (236/87) at [13.20]. 53 See eg ‘Siracusa Principles’, 6, on ‘national security’. 54 See ‘Siracusa Principles’, which indicates that all limitation clauses in the ICCPR are to be interpreted in the same way with regard to each right. See [17.31] for a case on ‘public health’. 55 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 466. 52

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purpose of protecting morals must be based on principles not deriving exclusively from a single tradition’ [17.37]. Any such limitations must be understood in the light of universality of human rights and the principle of non-discrimination.

[18.67] Blasphemy laws are restrictions on free speech that could be referable to the public morals. The HRC said, regarding blasphemy, in General Comment 34: ¶48. Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant.56 Such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26. Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.

[18.68]

HERTZBERG et al v FINLAND (61/79)

¶1. The authors of this communication . . . are five individuals, who are represented by a Finnish organisation, SETA (Organisation for Sexual Equality). ¶2.1. The facts of the five cases are essentially undisputed. The parties only disagree as to their evaluation. According to the contentions of the authors of the communication, Finnish authorities, including organs of the State-controlled Finnish Broadcasting Company (FBC), have interfered with their right of freedom of expression and information, as laid down in article 19 of the Covenant, by . . . censoring . . . radio and TV programmes dealing with homosexuality. At the heart of the dispute is paragraph 9 of chapter 20 of the Finnish Penal Code which sets forth the following: (1) If someone publicly engages in an act violating sexual morality, thereby giving offence, he shall be sentenced for publicly violating sexual morality to imprisonment for at most six months or to a fine. (2) Anyone who publicly encourages indecent behaviour between persons of the same sex shall be sentenced for encouragement to indecent behaviour between members of the same sex as decreed in subsection 1.

The authors complained about a decision by broadcasters to censor their material (a radio programme and a TV series) on the basis that full transmission of the material would have breached paragraph 20(9)(2) of the Finnish Penal Code. The HRC found in favour of the State Party: ¶10.2. With regard to the two censored programmes of Mrs Nikula and of Marko and Tuovi Putkonen, the Committee accepts the contention of the authors that their rights under article 19(2) of the Covenant have been restricted. While not every individual can be deemed to hold a right to express himself through a medium like TV, whose available time is limited, the situation may be different when a programme has been produced for transmission within the framework of a broadcasting organisation with the general approval of the responsible authorities. On the other hand, article 19(3) permits certain restrictions on the exercise of the rights protected by article 19(2), as are provided by law and are necessary 56

See also Concluding Observations on Kuwait (2011) UN doc CCPR/C/KWT/CO/2, para 24.

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for the protection of public order or of public health or morals. In the context of the present communication, the Finnish Government has specifically invoked public morals as justifying the actions complained of. The Committee has considered whether, in order to assess the necessity of those actions, it should invite the parties to submit the full text of the censored programmes. In fact, only on the basis of these texts could it be possible to determine whether the censored programmes were mainly or exclusively made up of factual information about issues related to homosexuality. ¶10.3. The Committee feels, however, that the information before it is sufficient to formulate its views on the communication. It has to be noted, first, that public morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible national authorities. ¶10.4. The Committee finds that it cannot question the decision of the responsible organs of the Finnish Broadcasting Corporation that radio and TV are not the appropriate forums to discuss issues related to homosexuality, as far as a programme could be judged as encouraging homosexual behaviour. According to article 19(3), the exercise of the rights provided for in article 19(2) carries with it special duties and responsibilities for those organs. As far as radio and TV programmes are concerned, the audience cannot be controlled. In particular, harmful effects on minors cannot be excluded. ¶11. Accordingly, the Human Rights Committee is of the view that there has been no violation of the rights of the authors of the communication under article 19(2) of the Covenant.

[18.69] This is the only case in which the HRC has stated that States Parties to the ICCPR have a ‘margin of discretion’. This ‘margin’ seemed to mirror the ‘margin of appreciation’ conferred on States Parties to the European Convention on Human Rights (ECHR). The margin of appreciation is akin to a benefit of the doubt given to the State, or an area in which the European Court will relax its scrutiny of the compatibility of an impugned practice with the ECHR provisions.57 The European Court of Human Rights has confirmed that States Parties have a wide margin of appreciation when imposing limits on freedom of expression for the purpose of protecting public morals.58 The HRC has now clearly rejected the use of the doctrine, in General Comment 34 [18.35] and elsewhere.59 Such a doctrine dilutes human rights protection. Furthermore, it may be noted that the doctrine is often applied under the ECHR when no common practice regarding the specific right at issue can be discerned throughout the States Parties to the ECHR. It is unwise to apply such a doctrine under the ICCPR, where a common practice would rarely be discerned among the very different States Parties to this universal treaty. [18.70]

DELGADO PÁEZ v COLOMBIA (195/85)

The author, a teacher, made various claims of persecution, including a complaint under article 19 regarding restrictions on his academic freedom to choose how to teach religion. The HRC dismissed the article 19 complaint: 57 See T Jones, ‘The Devaluation of Human Rights under the European Convention’ [1995] Public Law 430, 430–1. 58 See Handyside Case, Series A (1979–80) 1 EHRR 737, para 48. 59 See Länsman v Finland (511/92), where the HRC rejected the application of a margin of appreciation in the context of art 27 minority rights, at para 9.4 [24.30].

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¶5.8. Article 19 protects, inter alia, the right of freedom of expression and opinion. This will usually cover the freedom of teachers to teach their subjects in accordance with their own view, without interference. However, in the particular circumstances of the case, the special relationship between Church and State in Colombia, exemplified by the applicable Concordat, the Committee finds that the requirement, by the Church, that religion be taught in a certain way does not violate article 19.

This case demonstrates how ‘public morals’ vary between States, and therefore that the application of this express permissible limitation to article 19 rights may also vary from State to State.60 [18.71] Restrictions on obscene or pornographic material would be a classic instance of an article 19(3) limitation based on protection of public morals. Indeed, there may be stronger reasons to restrict pornography as indicated in General Comment 28. GENERAL COMMENT 28 ¶22. In relation to article 19 States parties should inform the Committee of any laws or other factors which may impede women from exercising the rights protected under this provision on an equal basis. As the publication and dissemination of obscene and pornographic material which portrays women and girls as objects of violence or degrading or inhuman treatment is likely to promote these kinds of treatment of women and girls, States parties should provide information about legal measures to restrict the publication or dissemination of such material.

This is the HRC’s first statement indicating an obligation on States to ‘control’ pornography, where it concerns depictions of adults.61 Pornography controls are apparently seen as more than mere permissible limitations to freedom of expression.62 General Comment 28 indicates that some forms of pornography are a form of free expression, analogous to hate speech, which must be prohibited. However, such hate speech is probably not prohibited under Article 20 itself, given its language. Article 20 is discussed directly below.

Article 20 and Hate Speech 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

[18.72] Article 20 contains mandatory limitations to freedom of expression. Article 20 requires States Parties to outlaw propaganda for war and vilification of persons on national, racial, or religious grounds. Article 20 ICCPR recognizes the destructive nature of certain types of expression. 60 61

See also explanation of Toonen v Australia (488/92) [16.50]. See, on child pornography, [21.41]ff.

62

See also [18.76].

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[18.73] However, article 20 conflicts with the more absolutist guarantees of freedom of expression in numerous State constitutions and the exalted position given to free speech in Western liberal theory. This has prompted numerous reservations to article 20, by States Parties such as the United States, Belgium, Denmark, Finland, and Iceland. [18.74]

GENERAL COMMENT 34

The HRC has confirmed that it interprets article 20 as being perfectly compatible with article 19: ¶50. Articles 19 and 20 are compatible with and complement each other. The acts that are addressed in article 20 are all subject to restriction pursuant to article 19, paragraph 3. As such, a limitation that is justified on the basis of article 20 must also comply with article 19, paragraph 3. ¶51. What distinguishes the acts addressed in article 20 from other acts that may be subject to restriction under article 19, paragraph 3, is that for the acts addressed in article 20, the Covenant indicates the specific response required from the State: their prohibition by law. It is only to this extent that article 20 may be considered as lex specialis with regard to article 19. ¶52. It is only with regard to the specific forms of expression indicated in article 20 that States parties are obliged to have legal prohibitions. In every case in which the State restricts freedom of expression it is necessary to justify the prohibitions and their provisions in strict conformity with article 19.

[18.75]

GENERAL COMMENT 11

¶1. . . . In view of the nature of article 20, States parties are obliged to adopt the necessary legislative measures prohibiting the actions referred to therein. . . . ¶2. Article 20 of the Covenant states that any propaganda for war and any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. In the opinion of the Committee, these required prohibitions are fully compatible with the right of freedom of expression as contained in article 19, the exercise of which carries with it special duties and responsibilities.

In Concluding Observations on Poland, the HRC has stated:63 ¶19. The Committee notes with concern that incidents of desecration of Catholic and Jewish cemeteries, and acts of anti-Semitism, have not always been properly investigated and the perpetrators punished (arts. 18, 20 and 27). The State party should intensify efforts to combat and punish all such incidents. Law enforcement bodies and the judiciary should be properly trained and instructed on how to address such complaints.

Regarding Switzerland, the HRC implied that the local advertising campaign in that State against minarets may have breached article 20.64 63 (2004) UN doc CCPR/CO/82/POL; see also Concluding Observations on the Russian Federation (2009) UN doc CCPR/C/RUS/CO/6, para 11. 64 Concluding Observations on Switzerland (2009) UN doc CCPR/C/CHE/CO/3, para 8.

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[18.76] It may be noted that article 20 targets hate crimes based on race, religion, and nationality, rather than hate crimes in general.65 For example, the HRC has expressed concern to the United States over violent crimes against sexual minorities: in doing so, it cited articles 2 and 26 [23.31], the non-discrimination provisions, rather than article 20.66 However, the HRC seemed to extract an analogous duty from articles 2 and 26, in recommending to the United States that it ‘ensure that its hate crime legislation, both at the federal and state levels, address sexual orientation-related violence’.67 In later Concluding Observations on Sweden, the HRC spoke of hate crimes on racial and homophobic bases in the one paragraph, citing both articles 20 and 26.68 [18.77]

GENERAL COMMENT 11

The prohibition under paragraph 1 extends to all forms of propaganda threatening or resulting in an act of aggression or breach of the peace contrary to the Charter of the United Nations, while paragraph 2 is directed against any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, whether such propaganda or advocacy has aims which are internal or external to the State concerned. The provisions of article 20, paragraph 1, do not prohibit advocacy of the sovereign right of self-defence or the right of peoples to self-determination and independence in accordance with the Charter of the United Nations. For article 20 to become fully effective there ought to be a law making it clear that propaganda and advocacy as described therein are contrary to public policy and providing for an appropriate sanction in case of violation. The Committee, therefore, believes that States parties which have not yet done so should take the measures necessary to fulfil the obligations contained in article 20, and should themselves refrain from any such propaganda or advocacy.

[18.78] The General Comment indicates that ‘wars’ which are sanctioned under the UN Charter are not ‘wars’ for the purposes of article 20(1). Thus, propaganda for wars in self-defence is permissible. So, too, logically, is propaganda for wars sponsored by the Security Council under Chapter VII of the Charter, such as the Allied action against Iraq in defence of Kuwait in 1990. Propaganda for illegal wars is of course caught by article 20(1). For example, given the dubious legal status of the 2003 invasion of Iraq by the US-led ‘coalition of the willing’, perhaps certain statements in support of that war contravened article 20. Indeed, it is unfortunate that the HRC did not take the opportunity in its General Comment to define the meaning of ‘propaganda for war’. Does it include information conveyed during a war, rather than information which precedes, supports, and potentially ignites the start of a war? All States issue favourable reports of their own war efforts, which could potentially be labelled propaganda, during wars in which they are involved. 65

See also discussion of ‘gendered hate speech’ [18.71]. Concluding Observations on the United States (2006) UN doc CCPR/C/USA/CO/3/Rev.1, para 25. See also Concluding Observations on the Russian Federation (2009) UN doc CCPR/C/RUS/CO/6, para 28. 67 Concluding Observations on the United States (2006) UN doc CCPR/C/USA/CO/3/Rev.1, para 25. 68 Concluding Observations on Sweden (2009) UN doc CCPR/C/SWE/CO/6, para 19. 66

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VASSILARI et al v GREECE (1570/07)

In November 2001 a letter and petition containing some 1,200 signatures was circulated in the University of Patras and published in a local newspaper. The letter alleged that Roma residents were responsible for a series of criminal offences, called for their eviction from the area and threatened ‘militant action’ if they failed to comply. In March 2002, the first and second authors initiated criminal proceedings with the Public Prosecutor, claiming that those responsible for the letter had incited racial vilification and violence against the Roma communities in breach of Greek law. Ultimately, the defendants were acquitted. The authors claimed that the acquittal breached article 20(2). The HRC found this claim to be inadmissible: ¶6.5. Without determining whether article 20 may be invoked under the Optional Protocol, the Committee considers that the authors have insufficiently substantiated the facts for the purposes of admissibility. Thus, this part of the communication is inadmissible under article 2 of the Optional Protocol.

The majority decision on the admissibility of the article 20(2) complaint was perplexing. The case clearly concerned an alleged failure by Greece to provide protection against racial hatred. This decision seems to deprive article 20(2) of utility under the Optional Protocol. Even more perplexing is the indication by the majority that article 20 might somehow be non-justiciable under the ICCPR. [18.80] Mr Amor, with whom Messrs Amin Fathalla and Bouzid Lazari agreed, dissented on this point, and his approach is to be preferred: The Committee has not ventured an opinion on the applicability of article 20, paragraph 2, to individual cases. While it may, of course, decide to do so in the future, the reasons for evading the question are puzzling. There is no logical or objective reason to do this. In stating that ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’, article 20, paragraph 2, provides protection for individuals and groups against this type of discrimination. Article 20 is not an invitation to add another law to the legal arsenal merely for form’s sake. Even if this was the purpose, which is not the case in Greece, such a law would be ineffective without procedures for complaints and penalties. In fact, the invocation of article 20, paragraph 2, by individuals who feel they have been wronged follows the logic of protection that underlies the entire Covenant and consequently affords protection to individuals and groups. It would be neither logical nor legally sound to consider excluding its applicability under the Optional Protocol. By declining to give an opinion on this aspect of the communication, the Committee allows uncertainty to persist on the scope of article 20, paragraph 2, particularly as, given the points raised, discussion was needed at the very least with regard to the question of admissibility. In my opinion, this approach is, frankly, questionable . . .

[18.81] In the later case of Andersen v Denmark (1868/09), the complaint concerned the failure by the State to investigate alleged hate speech by a politician, who allegedly compared Islamic headscarves with Nazi swastikas. The claim was inadmissible as the author, a Muslim, had failed to demonstrate that she was personally affected by the statement.69 Again, this case raises the question of whether an article 20(2) complaint can ever be admissible. 69

At para 6.4.

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[18.82] Most cases before the HRC on racial vilification have been concerned with limits to freedom of expression rights under article 19, rather than breaches of article 20 by failure to proscribe racial vilification. [18.83]

JRT and the WG PARTY v CANADA (104/81)

The facts are outlined immediately below. ¶1. The communication . . . is submitted by Mr T., a 69-year old Canadian citizen, residing in Canada, and by the W.G. Party, an unincorporated political party under the leadership of Mr T. since 1976. ¶2.1. The W.G. Party was founded as a political party in Toronto, Ontario, Canada, in February 1972. The Party and Mr T. attempted over several years to attract membership and promote the Party’s policies through the use of tape-recorded messages, which were recorded by Mr T. and linked up to the Bell Telephone System in Toronto, Ontario, Canada. Any member of the public could listen to the messages by dialling the relevant telephone number. The messages were changed from time to time but the contents were basically the same, namely to warn the callers ‘of the dangers of international finance and international Jewry leading the world into wars, unemployment and inflation and the collapse of world values and principles’. ¶2.2. The Canadian Human Rights Act was promulgated on 1 March 1978. Section 13 (1) of the Act reads as follows: It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that the person or those persons are identifiable on the basis of a prohibited ground of discrimination. ¶2.3. By application of this provision in conjunction with section 3 of the Act, which enumerates ‘race, national or ethnic origin, colour, religion, age, sex, marital status, conviction for which a pardon has been granted and physical handicap’ as ‘prohibited grounds of discrimination’, the telephone service of the W. G. Party and Mr T. was curtailed. . . .

Mr T. claimed that the above facts violated his rights under article 19(1) and (2) ICCPR. However, the HRC found the case inadmissible in the following terms: ¶8(b). . . . [T]he opinions which Mr T. seeks to disseminate through the telephone system clearly constitute the advocacy of racial or religious hatred which Canada has an obligation under article 20 (2) of the Covenant to prohibit. In the Committee’s opinion, therefore, the communication is, in respect of this claim, incompatible with the provisions of the Covenant, within the meaning of article 3 of the Optional Protocol.

[18.84]

ROSS v CANADA (736/97)

Malcolm Ross was employed as a teacher in a New Brunswick school district from 1976 to 1991. Throughout that time, he published a number of books and pamphlets which reflected his controversial religious opinions. In particular, his writings put forward a belief that Judaism fundamentally threatened the Christian

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faith, though he never introduced his opinions into his teaching. His promotion of his beliefs took place outside the classroom. A number of complaints were made against Ross by parents during this period. In 1988, Mr David Attiss, a Jewish parent of children within Ross’s school district, filed a complaint with the Human Rights Commission of New Brunswick against the School Board that employed Ross. Attiss claimed that the School Board’s failure to take action against Ross effectively condoned his anti-Semitic beliefs, and thus breached section 5 of the New Brunswick Human Rights Code. A Human Rights Board of Inquiry (‘the Board’) upheld Attiss’s complaint. The Board agreed that Ross’s classroom activity could not ground the discrimination complaint, but that it was reasonable to anticipate that Ross’s repeated expression of his anti-Semitic beliefs when he was off duty had contributed to the creation of a ‘poisoned environment’ within the School district which had interfered with the provision of educational services to Jewish children and parents within that district.70 The Board thus found that the School Board was vicariously liable for Ross’s discriminatory actions in violation of section 5. Under clause 2 of its subsequent order, the Board ordered (a) that Ross be placed on leave of absence without pay for eighteen months, (b) that he be appointed to a non-teaching position, (c) that his employment be terminated after eighteen months if a non-teaching position could not be found, and (d) that Ross’s employment be terminated immediately if he continued to publish and disseminate his anti-Semitic views. As a consequence, Ross was placed on leave without pay for a week and then transferred to a non-classroom position (‘the Order’). After a series of appeals and cross-appeals, Ross’s case appeared before the Supreme Court of Canada. The Supreme Court agreed that the Board’s orders limited Ross’s freedom of religion and expression. However, the Court agreed with the reasoning underlying those orders. First, teachers could be held to high standards with regard to their off-duty conduct, considering their position of trust and influence over children. Off-duty standards should not be so high as to authorize substantial invasion of a teacher’s privacy, but it was reasonable to punish a teacher if his/her off-duty conduct contributed to a hostile classroom atmosphere. Further, it was reasonable for the Board to find that the author’s continued classroom presence could help to generate discrimination within the school district due to his off-duty activities. The Court ultimately found that clauses 2(a), (b), and (c) of the Board’s orders were saved by section 1 of the Charter. Clause 2(d) however was invalid, as it constituted a disproportionate limitation on Ross’s constitutional rights. Ross submitted a communication to the HRC claiming a breach of his rights under articles 19 and 18 [17.09]. The State defended its actions partly by reference to its duties under article 20. The HRC agreed with the State that Ross’s ICCPR rights had not been violated: 70 In this respect, evidence was given by two Jewish students of repeated harassment including name-calling, the drawing of swastikas on blackboards, the carving of swastikas into desks, and general intimidation.

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¶11.1. With regard to the author’s claim under article 19 of the Covenant, the Committee observes that, in accordance with article 19 of the Covenant, any restriction on the right to freedom of expression must cumulatively meet several conditions set out in paragraph 3. The first issue before the Committee is therefore whether or not the author’s freedom of expression was restricted through the Board of Inquiry’s Order of 28 August 1991, as upheld by the Supreme Court of Canada. As a result of this Order, the author was placed on leave without pay for a week and was subsequently transferred to a non-teaching position. While noting the State party’s argument . . . that the author’s freedom of expression was not restricted as he remained free to express his views while holding a non-teaching position or while employed elsewhere, the Committee is unable to agree that the removal of the author from his teaching position was not, in effect, a restriction on his freedom of expression. The loss of a teaching position was a significant detriment, even if no or only insignificant pecuniary damage is suffered. This detriment was imposed on the author because of the expression of his views, and in the view of the Committee this is a restriction which has to be justified under article 19, paragraph 3, in order to be in compliance with the Covenant. ¶11.2. The next issue before the Committee is whether the restriction on the author’s right to freedom of expression met the conditions set out in article 19, paragraph 3. . . . ¶11.3. As regards the requirement that the restriction be provided by law, the Committee notes that there was a legal framework for the proceedings which led to the author’s removal from a teaching position. . . . ¶11.4. . . . [T]he Committee must also take into consideration that the Supreme Court considered all aspects of the case and found that there was sufficient basis in domestic law for the parts of the Order which it reinstated. The Committee also notes that the author was heard in all proceedings and that he had, and availed himself of, the opportunity to appeal the decisions against him. In the circumstances, it is not for the Committee to re-evaluate the findings of the Supreme Court on this point, and accordingly it finds that the restriction was provided for by law. ¶11.5. When assessing whether the restrictions placed on the author’s freedom of expression were applied for the purposes recognized by the Covenant, the Committee begins by noting that the rights or reputations of others for the protection of which restrictions may be permitted under article 19, may relate to other persons or to a community as a whole. For instance, and as held in Faurisson v France [18.90], restrictions may be permitted on statements which are of a nature as to raise or strengthen anti-Semitic feeling, in order to uphold the Jewish communities’ right to be protected from religious hatred. Such restrictions also derive support from the principles reflected in article 20 (2) of the Covenant. The Committee notes that both the Board of Inquiry and the Supreme Court found that the author’s statements were discriminatory against persons of the Jewish faith and ancestry and that they denigrated the faith and beliefs of Jews and called upon true Christians to not merely question the validity of Jewish beliefs and teachings but to hold those of the Jewish faith and ancestry in contempt as undermining freedom, democracy and Christian beliefs and values. . . . [T]he Committee concludes that the restrictions imposed on him were for the purpose of protecting the ‘rights or reputations’ of persons of Jewish faith, including the right to have an education in the public school system free from bias, prejudice and intolerance. 11.6. The final issue before the Committee is whether the restriction on the author’s freedom of expression was necessary to protect the right or reputations of persons of the Jewish

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faith. In the circumstances, the Committee recalls that the exercise of the right to freedom of expression carries with it special duties and responsibilities. These special duties and responsibilities are of particular relevance within the school system, especially with regard to the teaching of young students. In the view of the Committee, the influence exerted by school teachers may justify restraints in order to ensure that legitimacy is not given by the school system to the expression of views which are discriminatory. In this particular case, the Committee takes note of the fact that the Supreme Court found that it was reasonable to anticipate that there was a causal link between the expressions of the author and the ‘poisoned school environment’ experienced by Jewish children in the School district. In that context, the removal of the author from a teaching position can be considered a restriction necessary to protect the right and freedom of Jewish children to have a school system free from bias, prejudice and intolerance. Furthermore, the Committee notes that the author was appointed to a non-teaching position after only a minimal period on leave without pay and that the restriction thus did not go any further than that which was necessary to achieve its protective functions. The Human Rights Committee accordingly concludes that the facts do not disclose a violation of article 19. ARTICLE 4 CERD

[18.85] The International Convention on the Elimination of All Forms of Racial Discrimination 1966 (ICERD) contains a more detailed obligation on States to pass and enforce racial vilification laws in article 4. Article 4 only addresses racial hatred: it does not for example address hatred against foreigners, generally.71 The ICERD Committee has explained the raison d’être of article 4 in its General Recommendation 15. CERD GENERAL RECOMMENDATION 15 ¶1. When the International Convention on the Elimination of All Forms of Racial Discrimination was being adopted [in 1966], article 4 was regarded as central to the struggle against racial discrimination. At that time, there was a widespread fear of the revival of authoritarian ideologies. The proscription of the dissemination of ideas of racial superiority, and of organised activity likely to incite persons to racial violence, was properly regarded as crucial. Since that time, the Committee has received evidence of organised violence based on ethnic origin and the political exploitation of ethnic difference. As a result, implementation of article 4 is now of increased importance.

The ICERD Committee went on to explain some of the duties entailed in the proper implementation of article 4: ¶2. . . . To satisfy these obligations, States parties have not only to enact appropriate legislation but also to ensure that it is effectively enforced. Because threats and acts of racial violence easily lead to other such acts and generate an atmosphere of hostility, only immediate intervention can meet the obligations of effective response. ¶3. Article 4(a) requires States parties to penalise four categories of misconduct: (i) dissemination of ideas based upon racial superiority or hatred; (ii) incitement to racial hatred;

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See Quereshi v Denmark (CERD /33/03).

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(iii) acts of violence against any race or group of persons of another colour or ethnic origin; and (iv) incitement to such acts. . . . ¶5. Article 4(a) also penalises the financing of racist activities, which the Committee takes to include all the activities mentioned in paragraph 3 above, that is to say, activities deriving from ethnic as well as racial differences. . . . ¶6. Some States have maintained that in their legal order it is inappropriate to declare illegal an organisation before its members have promoted or incited racial discrimination. The Committee is of the opinion that article 4(b) places a greater burden upon such States to be vigilant in proceeding against such organisations at the earliest moment. These organisations, as well as organised and other propaganda activities, have to be declared illegal and prohibited. Participation in these organisations is, of itself, to be punished.

[18.86] Unlike the HRC with article 20, the CERD Committee has addressed several cases under article 4 on the merits, incluing LK v Netherlands (CERD 4/91) and the following case. [18.87] JEWISH COMMUNITY of OSLO v NORWAY (CERD 30/03) The complaint concerned the acquittal of hate crimes of the leader of a Nazi demonstration, one Mr Sjolie. The CERD Committee found violations of CERD: ¶10.4. At issue in the present case is whether the statements made by Mr. Sjolie, properly characterized, fall within any of the categories of impugned speech set out in article 4, and if so, whether those statements are protected by the ‘due regard’ provision as it relates to freedom of speech. In relation to the characterization of the speech, the Committee does not share the analysis of the majority of the members of the Supreme Court. Whilst the contents of the speech are objectively absurd, the lack of logic of particular remarks is not relevant to the assessment of whether or not they violate article 4. In the course of the speech, Mr. Sjolie stated that his ‘people and country are being plundered and destroyed by Jews, who suck our country empty of wealth and replace it with immoral and un-Norwegian thoughts’. He then refers not only to Rudolf Hess, in whose commemoration the speech was made, but also to Adolf Hitler and their principles; he states that his group will ‘follow in their footsteps and fight for what (we) believe in’. The Committee considers these statements to contain ideas based on racial superiority or hatred; the deference to Hitler and his principles and ‘footsteps’ must in the Committee’s view be taken as incitement at least to racial discrimination, if not to violence. ¶10.5. As to whether these statements are protected by the ‘due regard’ clause contained in article 4,72 the Committee notes that the principle of freedom of speech has been afforded a lower level of protection in cases of racist and hate speech dealt with by other international bodies, and that the Committee’s own General recommendation No 15 clearly states that the prohibition of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression. The Committee notes that the ‘due regard’ clause relates generally to all principles embodied in the Universal Declaration of Human Rights, not only freedom of speech. Thus, to give the right to freedom of speech a more limited role in the context of article 4 does not deprive the due regard clause of significant 72 Article 4 states that its implementation be taken ‘with due regard to the principles embodied in the Universal Declaration of Human Rights’.

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meaning, all the more so since all international instruments that guarantee freedom of expression provide for the possibility, under certain circumstances, of limiting the exercise of this right. The Committee concludes that the statements of Mr. Sjolie, given that they were of exceptionally/manifestly offensive character, are not protected by the due regard clause, and that accordingly his acquittal by the Supreme Court of Norway gave rise to a violation of article 4, and consequently article 6,73 of the Convention.

[18.88] Most findings of violations in ICERD article 4 cases have concerned failures of the State to investigate alleged hate speech under article 6, rather than direct findings of violation under article 4. AHMAD v DENMARK (CERD 16/99) The author and his friends were Danish citizens of Pakistani origin. While waiting to meet friends at a school, they were asked to leave by a teacher. Both that teacher (‘Mr KP’) and the headmaster (‘Mr OT’) allegedly called them ‘monkeys’. The complaint is outlined below: ¶3.1. It is submitted that the case was not examined properly by the national authorities and that the author never obtained an apology or sufficient satisfaction or reparation. As a result the State party has violated its obligations under article 2, subparagraph 1 (d) and article 6 of the Convention.

The CERD Committee found a violation of article 6 CERD, entailed in the substandard investigation of the incident: ¶6.1. The State party submits that Mr K.P. did not deny having called the author and his group ‘monkeys’. It also submits that Mr O.T. did not deny having said something similar. It is also established that these utterances were made in the course of a tense episode in a school corridor and in the presence of several witnesses. Thus, the Committee is of the opinion that the author was insulted in public, at least by Mr O.T. ¶6.2. The District Public Prosecutor did not establish whether the author had been insulted on the grounds of his national or ethnic origin, in violation of the provisions of article 2, paragraph 1 (d), of the Convention. It is the opinion of the Committee that if the police involved in the case had not discontinued their investigations, it might have been established whether the author had indeed been insulted on racial grounds. ¶6.3. From information submitted by the State party in its fourteenth periodic report (CERD/C/362/Add. 1), the Committee gathers that on several occasions persons have been convicted by Danish courts for breaches of section 266b of the Criminal Code for insulting or degrading statements similar to the ones uttered in the present case. Therefore, the Committee does not share the opinion of the State party that the statements in question do not fall within section 266b of the Criminal Code. ¶6.4. Owing to the failure of the police to continue their investigations, and the final decision of the Public Prosecutor against which there was no right of appeal, the author was denied any opportunity to establish whether his rights under the Convention had been 73 Article 6 guarantees ‘effective protection and remedies’ for acts of racial discrimination contrary to the Convention, ‘as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination’.

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violated. From this it follows that the author has been denied effective protection against racial discrimination and remedies attendant thereupon by the State party. ¶7. The Committee considers that the author has established a prima facie case for the purpose of admissibility. It also considers that the conditions for admissibility have been satisfied. It therefore decides, under rule 91 of its rules of procedure, that the communication is admissible. ¶8. As for the merits, the Committee considers that, in the light of the above findings, the facts as presented constitute a violation of article 6 of the Convention. ¶9. The Committee recommends to the State party to ensure that the police and the public prosecutors properly investigate accusations and complaints related to acts of racial discrimination which should be punishable by law according to article 4 of the Convention.

Similar findings have been made in Gelle v Denmark (CERD 34/04) and Adan v Denmark (CERD 43/08). In contrast, the CERD Committee deferred to the State party’s investigations, thus finding no violation in Zentralrat Deutscher Sinti und Roma et al v Germany (CERD 38/06). [18.89]

HAGAN v AUSTRALIA (CERD 26/02)

The author was an Aboriginal Australian. His complaint was as follows: ¶2.1. In 1960, the grandstand of an important sporting ground in Toowoomba, Queensland, where the author lives, was named the ‘E.S. “Nigger” Brown Stand’, in honour of a well-known sporting and civic personality, Mr E.S. Brown. The word ‘nigger’ (‘the offending term’) appears on a large sign on the stand. Mr Brown, who was also a member of the body overseeing the sports ground and who died in 1972, was of white Anglo-Saxon extraction who acquired the offending term as his nickname, either ‘because of his fair skin and blond hair or because he had a penchant for using “Nigger Brown” shoe polish’. The offending term is also repeated orally in public announcements relating to facilities at the ground and in match commentaries.

The author complained to local authorities about the offence caused to him by the name of the grandstand, without success: ¶3.1. The petitioner contends that the use of the offending term on the grandstand and orally in connection therewith violates articles 2, in particular, paragraph 1 (c); 4; 5, paragraphs d (i) and (ix), e (vi) and f; 6 and 7 of the Convention. He contends that the term is ‘the most racially offensive, or one of the most racially offensive, words in the English language’. Accordingly, he and his family are offended by its use at the ground and are unable to attend functions at what is the area’s most important football venue. He argues that whatever may have been the position in 1960, contemporary display and use of the offending term is ‘extremely offensive, especially to the Aboriginal people, and falls within the definition of racial discrimination in Article 1’ of the Convention. ¶3.2. He clarifies that he has no objection to honouring Mr Brown or naming a football stand in his honour, but that at the time the nickname ‘Nigger’ was applied to Mr Brown, non-Aboriginal Australians ‘either were not aware of or were insensitive to the hurt and offence that term caused to Aboriginal people’. He argues further that it is not necessary to repeat Mr Brown’s nickname in order to honour him, for other stadia named after well-known athletes utilize their ordinary names, rather than their nicknames.

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¶3.3. He argues that under article 2, paragraph 1 (c), in particular, any State party to the Convention has an obligation to amend laws having the effect of perpetuating racial discrimination. He contends that use of words such as the offending term in a very public way provides the term with formal sanction or approval. Words convey ideas and power, and influence thoughts and beliefs. They may perpetuate racism and reinforce prejudices leading to racial discrimination. The lawfulness (in terms of domestic law) of the use of this term also runs counter to the objectives of article 7, which indicates that States parties undertake to combat prejudices leading to racial discrimination.

The State Party defended the dismissal of the author’s case under domestic anti-discrimination legislation by Australian judicial authorities. ¶4.10. The State party refers to the following contextual elements: (i) the fact that the offending term is displayed as ‘an integral part of the name of a person who is clearly being honoured by having his name publicly attached to the stand’, (ii) the Federal Court’s finding that ‘[e]ven if the nickname “Nigger” was originally bestowed long ago on Mr Brown in circumstances in which it then had a racial or even a racist connotation, the evidence indicates that for many decades before the author’s complaint, its use as part of the customary identifier of Mr Brown had ceased to have any such connotation’, (iii) the consulations with local indigenous persons, (iv) the evidence of a former Aboriginal rugby league personality in the area for whom the name was unproblematic and ‘simply part of history’, and (v) the absence of any complaint (until the petitioner’s) over 40 years of display at a ground often frequented by many indigenous persons despite increased sensitivities and willingness to speak out in recent years.

The CERD Committee apparently found in favour of the author though its decision was strangely ambivalent, and may have fallen short of a finding of violation of CERD. ¶7.2. The Committee has taken due account of the context within which the sign bearing the offending term was originally erected in 1960, in particular the fact that the offending term, as a nickname probably with reference to a shoeshine brand, was not designed to demean or diminish its bearer, Mr Brown, who was neither black nor of aboriginal descent. Furthermore, for significant periods neither Mr Brown (for 12 years until his death) nor the wider public (for 39 years until the petitioner’s complaint) objected to the presence of the sign. ¶7.3. Nevertheless, the Committee considers that that use and maintenance of the offending term can at the present time be considered offensive and insulting, even if for an extended period it may not have necessarily been so regarded. The Committee considers, in fact, that the Convention, as a living instrument, must be interpreted and applied taking into [consideration] the circumstances of contemporary society. In this context, the Committee considers it to be its duty to recall the increased sensitivities in respect of words such as the offending term appertaining today. ¶8. The Committee therefore notes with satisfaction the resolution adopted at the Toowoomba public meeting of 29 July 1999 to the effect that, in the interest of reconciliation, racially derogatory or offensive terms will not be used or displayed in the future. At the same time, the Committee considers that the memory of a distinguished sportsperson may be honoured in ways other than by maintaining and displaying a public sign considered to be racially offensive. The Committee recommends that the State party take the necessary measures to secure

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the removal of the offending term from the sign in question, and to inform the Committee of such action it takes in this respect.

This hesitant decision is to be regretted. In Hagan, the CERD Committee passed up a golden opportunity to spell out differences between racial vilification and, possibly, speech which fell short of that standard, such as speech which is offensive on a racial basis but not so extreme as to constitute hate speech. Instead, the CERD Committee served up a confusing decision, which may or may not signal a violation. HOLOCAUST DENIAL

[18.90]

FAURISSON v FRANCE (550/93)

This case deals with the phenomenon of Holocaust denial. Faurisson was convicted under a French law, which was described as follows by the State Party: ¶7.10. The offence of which the author was convicted is defined in precise terms and is based on objective criteria, so as to avoid the creation of a category of offences linked merely to expression of opinions (‘délit d’opinion’). The committal of the offence necessitates (a) the denial of crimes against humanity, as defined and recognised internationally [by the London Charter of 8 August 1945], and (b) that these crimes against humanity have been adjudicated by judicial instances [in International Military Tribunal at Nuremburg]. In other words, the Law of 13 July 1990 does not punish the expression of an opinion, but the denial of a historical reality universally recognised. The adoption of the provision was necessary in the State party’s opinion, not only to protect the rights and the reputation of others, but also to protect public order and morals.

The author submitted the following complaint: ¶2.1. The author was a professor of literature at the Sorbonne University in Paris until 1973 and at the University of Lyon until 1991, when he was removed from his chair. Aware of the historical significance of the Holocaust, he has sought proof of the methods of killings, in particular by gas asphyxiation. While he does not contest the use of gas for purposes of disinfection, he doubts the existence of gas chambers for extermination purposes (‘chambres à gaz homicides’) at Auschwitz and in other Nazi concentration camps. . . . ¶2.2. The author submits that his opinions have been rejected in numerous academic journals and ridiculed in the daily press, notably in France; nonetheless, he continues to question the existence of extermination gas chambers. As a result of public discussion of his opinions and the polemics accompanying these debates, he states that, since 1978, he has become the target of death threats and that on eight occasions he has been physically assaulted. On one occasion in 1989, he claims to have suffered serious injuries, including a broken jaw, for which he was hospitalised. He contends that although these attacks were brought to the attention of the competent judicial authorities, they were not seriously investigated and none of those responsible for the assaults has been arrested or prosecuted. On 23 November 1992, the Court of Appeal of Riom followed the request of the prosecutor of the Tribunal de Grande Instance of Cusset and decreed the closure of the proceedings (ordonnance de non-lieu) which the authorities had initiated against X. ¶2.3. On 13 July 1990, the French legislature passed the so-called ‘Gayssot Act’, which amends the law on the Freedom of the Press of 1881 by adding an article 24 bis; the latter

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makes it an offence to contest the existence of the category of crimes against humanity as defined in the London Charter of 8 August 1945, on the basis of which Nazi leaders were tried and convicted by the International Military Tribunal at Nuremburg in 1945–1946. The author submits that, in essence, the ‘Gayssot Act’ promotes the Nuremburg trial and judgment to the status of dogma, by imposing criminal sanctions on those who dare to challenge its findings and premises. Mr Faurisson contends that he has ample reason to believe that the records of the Nuremburg trial can indeed be challenged and that the evidence used against Nazi leaders is open to question, as is, according to him, the evidence about the number of victims exterminated at Auschwitz. . . . ¶2.5. Shortly after the enactment of the ‘Gayssot Act’, Mr Faurisson was interviewed by the French monthly magazine Le Choc du Mois, which published the interview in its Number 32 issue of September 1990. Besides expressing his concern that the new law constituted a threat to freedom of research and freedom of expression, the author reiterated his personal conviction that there were no homicidal gas chambers for the extermination of Jews in Nazi concentration camps. Following the publication of this interview, eleven associations of French resistance fighters and of deportees to German concentration camps filed a private criminal action against Mr Faurisson and Patrice Boizeau, the editor of the magazine Le Choc du Mois. By judgment of 18 April 1991, the 17th Chambre Correctionnelle du Tribunal de Grande Instance de Paris convicted Messrs. Faurisson and Boizeau of having committed the crime of ‘contestation de crimes contre l’humanité’ and imposed on them fines and costs amounting to FF 326,832. ¶2.6. The conviction was based, inter alia, on the following Faurisson statements: ‘ . . . No one will have me admit that two plus two make five, that the earth is flat, or that the Nuremburg Tribunal was infallible. I have excellent reasons not to believe in this policy of extermination of Jews or in the magic gas chamber . . . ’ ‘I would wish to see that 100 per cent of all French citizens realise that the myth of the gas chambers is a dishonest fabrication (‘est une gredinerie’), endorsed by the victorious powers of Nuremburg in 1945–46 and officialised on 14 July 1990 by the current French Government, with the approval of the “court historians”’. . . . ¶3.1. The author contends that the ‘Gayssot Act’ curtails his right to freedom of expression and academic freedom in general, and considers that the law targets him personally (‘lex Faurissonia’). He complains that the incriminated provision constitutes unacceptable censorship, obstructing and penalising historical research. . . .

The State Party submitted the following counter-arguments. ¶7.2. . . . To the Government these revisionist theses constitute ‘a subtle form of contemporary anti-semitism’ . . . which, prior to 13 July 1990 could not be prosecuted under any of the existing provisions of French criminal legislation. . . . ¶7.5. . . . By challenging the reality of the extermination of Jews during the Second World War, the author incites his readers to anti-semitic behaviour . . . contrary to the Covenant and other international conventions ratified by France. . . . ¶7.13. [The State party] concludes that the author’s conviction was fully justified, not only by the necessity of securing respect for the judgment of the International Military Tribunal at Nuremburg, and through it the memory of the survivors and the descendants of the victims of Nazism, but also by the necessity of maintaining social cohesion and public order.

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The HRC found against Faurisson on the merits: ¶9.3. Although it does not contest that the application of the terms of the Gayssot Act, which, in their effect, make it a criminal offence to challenge the conclusions and the verdict of the International Military Tribunal at Nuremburg, may lead, under different conditions than the facts of the instant case, to decisions or measures incompatible with the Covenant, the Committee is not called upon to criticise in the abstract laws enacted by States parties. The task of the Committee under the Optional Protocol is to ascertain whether the conditions of the restrictions imposed on the right to freedom of expression are met in the communications which are brought before it. ¶9.4. Any restriction on the right to freedom of expression must cumulatively meet the following conditions: it must be provided by law, it must address one of the aims set out in paragraph 3 (a) and (b) of article 19, and must be necessary to achieve a legitimate purpose. ¶9.5. The restriction on the author’s freedom of expression was indeed provided by law i.e. the Act of 13 July 1990. It is the constant jurisprudence of the Committee that the restrictive law itself must be in compliance with the provisions of the Covenant. In this regard the Committee concludes, on the basis of the reading of the judgment of the 17th Chambre correctionnelle du Tribunal de grande instance de Paris that the finding of the author’s guilt was based on his following two statements: ‘ . . . I have excellent reasons not to believe in the policy of extermination of Jews or in the magic gas chambers . . . I wish to see that 100 per cent of the French citizens realise that the myth of the gas chambers is a dishonest fabrication’. His conviction therefore did not encroach upon his right to hold and express an opinion in general, rather the court convicted Mr Faurisson for having violated the rights and reputation of others. For these reasons the Committee is satisfied that the Gayssot Act, as read, interpreted and applied to the author’s case by the French courts, is in compliance with the provisions of the Covenant. ¶9.6. To assess whether the restrictions placed on the author’s freedom of expression by his criminal conviction were applied for the purposes provided for by the Covenant, the Committee begins by noting, as it did in its General Comment 10 that the rights for the protection of which restrictions on the freedom of expression are permitted by article 19, paragraph 3, may relate to the interests of other persons or to those of the community as a whole. Since the statements made by the author, read in their full context, were of a nature as to raise or strengthen anti-semitic feelings, the restriction served the respect of the Jewish community to live free from fear of an atmosphere of anti-semitism. The Committee therefore concludes that the restriction of the author’s freedom of expression was permissible under article 19, paragraph 3 (a), of the Covenant. ¶9.7. Lastly the Committee needs to consider whether the restriction of the author’s freedom of expression was necessary. The Committee noted the State party’s argument contending that the introduction of the Gayssot Act was intended to serve the struggle against racism and anti-semitism. It also noted the statement of a member of the French Government, the then Minister of Justice, which characterised the denial of the existence of the Holocaust as the principal vehicle for anti-semitism. In the absence in the material before it of any argument undermining the validity of the State party’s position as to the necessity of the restriction, the Committee is satisfied that the restriction of Mr Faurisson’s freedom of expression was necessary within the meaning of article 19, paragraph 3, of the Covenant. ¶10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the

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facts as found by the Committee do not reveal a violation by France of article 19, paragraph 3, of the Covenant.

[18.91] A number of concurring separate opinions were issued. Mrs Evatt and Mr Kretzmer submitted the following opinion, co-signed by Mr Klein: ¶3. The State party has argued that the author’s conviction was justified ‘by the necessity of securing respect for the judgment of the International Military Tribunal at Nuremburg, and through it the memory of the survivors and the descendants of the victims of Nazism.’ While we entertain no doubt whatsoever that the author’s statements are highly offensive both to Holocaust survivors and to descendants of Holocaust victims (as well as to many others), the question under the Covenant is whether a restriction on freedom of expression in order to achieve this purpose may be regarded as a restriction necessary for the respect of the rights of others. ¶4. Every individual has the right to be free not only from discrimination on grounds of race, religion and national origins, but also from incitement to such discrimination. This is stated expressly in article 7 of the Universal Declaration of Human Rights. It is implicit in the obligation placed on States parties under article 20, paragraph 2, of the Covenant to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. The crime for which the author was convicted under the Gayssot Act does not expressly include the element of incitement, nor do the statements which served as the basis for the conviction fall clearly within the boundaries of incitement, which the State party was bound to prohibit, in accordance with article 20, paragraph 2. However, there may be circumstances in which the right of a person to be free from incitement to discrimination on grounds of race, religion or national origins cannot be fully protected by a narrow, explicit law on incitement that falls precisely within the boundaries of article 20, paragraph 2. This is the case where, in a particular social and historical context, statements that do not meet the strict legal criteria of incitement can be shown to constitute part of a pattern of incitement against a given racial, religious or national group, or where those interested in spreading hostility and hatred adopt sophisticated forms of speech that are not punishable under the law against racial incitement, even though their effect may be as pernicious as explicit incitement, if not more so. ¶5. In the discussion in the French Senate on the Gayssot Act the then Minister of Justice, Mr Arpaillange, explained that the said law, which, inter alia, prohibits denial of the Holocaust, was needed since Holocaust denial is a contemporary expression of racism and anti-semitism. Furthermore, the influence of the author’s statements on racial or religious hatred was considered by the Paris Court of Appeal, which held that by virtue of the fact that such statements propagate ideas tending to revive Nazi doctrine and the policy of racial discrimination, they tend to disrupt the harmonious coexistence of different groups in France. ¶6. The notion that in the conditions of present-day France, Holocaust denial may constitute a form of incitement to anti-semitism cannot be dismissed. This is a consequence not of the mere challenge to well-documented historical facts, established both by historians of different persuasions and backgrounds as well as by international and domestic tribunals, but of the context, in which it is implied, under the guise of impartial academic research, that the victims of Nazism were guilty of dishonest fabrication, that the story of their victimisation is a myth and that the gas chambers in which so many people were murdered are ‘magic’.

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¶7. The Committee correctly points out, as it did in its General Comment 10, that the right for the protection of which restrictions on freedom of expression are permitted by article 19, paragraph 3, may relate to the interests of a community as a whole. This is especially the case in which the right protected is the right to be free from racial, national or religious incitement. The French courts examined the statements made by the author and came to the conclusion that his statements were of a nature as to raise or strengthen anti-semitic tendencies. It appears therefore that the restriction on the author’s freedom of expression served to protect the right of the Jewish community in France to live free from fear of incitement to anti-semitism. This leads us to the conclusion that the State party has shown that the aim of the restrictions on the author’s freedom of expression was to respect the right of others, mentioned in article 19, paragraph 3. The more difficult question is whether imposing liability for such statements was necessary in order to protect that right. ¶8. The power given to States parties under article 19, paragraph 3, to place restrictions on freedom of expression, must not be interpreted as license to prohibit unpopular speech, or speech which some sections of the population find offensive. Much offensive speech may be regarded as speech that impinges on one of the values mentioned in article 19, paragraph 3 (a) or (b) (the rights or reputations of others, national security, ordre public, public health or morals). The Covenant therefore stipulates that the purpose of protecting one of those values is not, of itself, sufficient reason to restrict expression. The restriction must be necessary to protect the given value. This requirement of necessity implies an element of proportionality. The scope of the restriction imposed on freedom of expression must be proportional to the value which the restriction serves to protect. It must not exceed that needed to protect that value. As the Committee stated in its General Comment 10, the restriction must not put the very right itself in jeopardy. ¶9. The Gayssot Act is phrased in the widest language and would seem to prohibit publication of bona fide research connected with matters decided by the Nuremburg Tribunal. Even if the purpose of this prohibition is to protect the right to be free from incitement to anti-semitism, the restrictions imposed do not meet the proportionality test. They do not link liability to the intent of the author, nor to the tendency of the publication to incite to anti-semitism. Furthermore, the legitimate object of the law could certainly have been achieved by a less drastic provision that would not imply that the State party had attempted to turn historical truths and experiences into legislative dogma that may not be challenged, no matter what the object behind that challenge, nor its likely consequences. In the present case we are not concerned, however, with the Gayssot Act, in abstracto, but only with the restriction placed on the freedom of expression of the author by his conviction for his statements in the interview in Le Choc du Mois. Does this restriction meet the proportionality test? ¶10. The French courts examined the author’s statements in great detail. Their decisions, and the interview itself, refute the author’s argument that he is only driven by his interest in historical research. In the interview the author demanded that historians ‘particularly Jewish historians’ (‘les historiens, en particulier juifs’) who agree that some of the findings of the Nuremburg Tribunal were mistaken be prosecuted. The author referred to the ‘magic gas chamber’ (‘la magique chambre à gaz’) and to ‘the myth of the gas chambers’ (‘le mythe des chambres à gaz’), that was a ‘dirty trick’ (‘une gredinerie’) endorsed by the victors in Nuremburg. The author has, in these statements, singled out Jewish historians over others, and has clearly implied that the Jews, the victims of the Nazis, concocted the story of gas chambers for their own purposes. While there is every reason to maintain protection of bona fide historical research against restriction, even when it challenges accepted

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historical truths and by so doing offends people, anti-semitic allegations of the sort made by the author, which violate the rights of others in the way described, do not have the same claim to protection against restriction. The restrictions placed on the author did not curb the core of his right to freedom of expression, nor did they in any way affect his freedom of research; they were intimately linked to the value they were meant to protect—the right to be free from incitement to racism or anti-semitism; protecting that value could not have been achieved in the circumstances by less drastic means. It is for these reasons that we joined the Committee in concluding that, in the specific circumstances of the case, the restrictions on the author’s freedom of expression met the proportionality test and were necessary in order to protect the rights of others.

Messrs Ando, Lallah, and Bhagwati, in separate concurring opinions, essentially agreed with the opinion of Mrs Evatt and Messrs Kretzmer and Klein. [18.92] Mrs Medina Quiroga also agreed with the above opinion, and added the following observation: ¶2. I would like to add that a determining factor for my position is the fact that, although the wording of the Gayssot Act might, in application, constitute a clear violation of article 19 of the Covenant, the French court which tried Mr Faurisson interpreted and applied that Act in the light of the provisions of the Covenant, thereby adapting the Act to France’s international obligations with regard to freedom of expression.

[18.93] Despite the State Party’s victory in Faurisson v France, all HRC members expressed misgivings over the wide scope of the impugned law. Whilst Mr Faurisson’s interview could be legitimately censored, the law could conceivably censor expression in a way which breached article 19. Perhaps it is arguable that the restrictions on Faurisson’s speech were not sufficiently circumscribed and ‘provided by law’, as the law itself was too broad [18.32]. However, the HRC interpreted the relevant ‘law’ to have been the French statute as interpreted by the French Court. The Court’s decision had ‘cured’ the defects in the statute in this case. [18.94]

GENERAL COMMENT 34

¶49. Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events. Restrictions on the right of freedom of opinion should never be imposed and, with regard to freedom of expression, they should not go beyond what is permitted in paragraph 3 or required under article 20.

This statement, which postdates Faurisson by well over a decade, seems to indicate that laws prohibiting holocaust denial, or indeed the denial of any particular historical facts, are incompatible with article 19. Furthermore, the HRC has stated to Hungary:74

74

(2010) UN doc CCPR/C/HUN/CO/5.

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¶19. The Committee is concerned that the evolution of the so-called ‘memory laws’ in the State party risks criminalizing a wide range of views on the understanding of the post-World War II history of the State party (arts. 19 and 20).

Conclusion [18.95] The HRC has dealt with numerous important issues regarding article 19, and its recent issuance of General Comment 34 is a welcome addition to its jurisprudence on this important right. Its case law includes communications on freedom of information, defamation, commercial speech, holocaust denial, as well as restrictions on speech due to national security, public order, and public morals. It has not yet confirmed whether article 20 is justiciable. Given article 4 CERD is justiciable, there seems to be no good reason why article 20 should be excluded from Optional Protocol consideration.

19 Freedoms of Assembly and Association—Articles 21 and 22 • Article 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Meaning of ‘Assembly’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Limits to Freedom of Assembly. . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Interpretation of Article 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Article 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Meaning of ‘Association’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Limits to Freedom of Association . . . . . . . . . . . . . . . . . . . . . . . . . . . • Trade Union Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Freedom not to Associate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[19.02] [19.02] [19.05] [19.07] [19.13] [19.13] [19.14] [19.20] [19.31] [19.36]

[19.01] Article 21 guarantees freedom of peaceful assembly, while article 22 guarantees freedom of association. Both freedoms are essential to one’s effective participation in civil and political society. However, neither freedom has generated much International Covenant on Civil and Political Rights (ICCPR) jurisprudence.

Article 21 The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. MEANING OF ‘ASSEMBLY’

[19.02] Article 21 protects the right of peaceful assembly. Nowak describes the right as one of persons to gather intentionally and temporarily for a specific purpose.1 Certain assemblies are protected under other provisions. For example, religious assemblies are protected under article 18; purely private assemblies, such as gatherings of family and friends, are protected under article 17; and assemblies by associations are protected by article 22.2 By inference, article 21 might be directed 1 M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005), 484. 2 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 485.

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at protecting assemblies that are not covered by these other articles. Nowak suggests that article 21 is specifically directed at assemblies concerned with the discussion or proclamation of ideas.3 [19.03] In Coleman v Australia (1157/03), the HRC found that the right to freedom of assembly is irrelevant if one is acting alone.4 An ‘assembly’ constitutes more than one person. [19.04] Assemblies may occur in a variety of ways. They can be held in closed rooms, outdoors, and on public or private property. Assemblies can be mobile (as in marches and processions) or stationary. Participation may be restricted or open to all. LIMITS TO FREEDOM OF ASSEMBLY

[19.05] Freedom of assembly is not an absolute right. First, the freedom is confined to peaceful assemblies, so assemblies must not be violent. For example, riots and affrays are not protected. Civil disobedience manifested without force is likely to be protected under this provision.5 However, this does not mean that States are absolved of human rights obligations in controlling violent assemblies. In Concluding Observations on Denmark, the Human Rights Committee (HRC) commented:6 ¶14. The Committee also expresses its concern with the methods of crowd control employed by police forces, including the use of dogs, against participants in various demonstrations and gatherings which, on certain occasions, have resulted in serious injuries to persons in the crowds, including bystanders. ¶21. The Committee urges the Government of the State party to further the training of the police forces in methods of crowd control and handling offenders, including those suffering from mental disorder; and to keep these issues constantly under review. The Committee recommends that the authorities reconsider the use of dogs in crowd control.

The above comments may indicate that peaceful participants in a violent assembly may be protected under article 21, and/or that all participants are protected under other ICCPR provisions, such as the article 7 prohibition on inhuman and degrading treatment.7 [19.06] The right of freedom of assembly is also subject to a number of express limitations. These limitations mirror those found in articles 12, 18, 19, and 22. Presumably, the limits will be interpreted in a similar manner to relevant interpretations under other provisions.8 Article 21 limits must be ‘in conformity with the Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 485. 5 At para 6.4. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 375. (1997) UN doc CCPR/C/79/Add.68, para 14. 7 See also Umetaliev v Kyrgysztan (1275/04) [8.09] and Domínguez v Paraguay (1828/08) [8.10]. 8 See [12.27]ff and [18.30]ff for interpretation of identical enumerated limits. See ‘Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’ (1985) 7 HRQ 3, which indicates that all limitation clauses in the ICCPR are to be interpreted in the same way with regard to each right. 3 4 6

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law’. This phrase is different from that found in articles 12, 18, 19, and 22, which require limitations to be ‘provided’ or ‘prescribed’ by law. Nowak believes that this difference in formulation permits the exercise of more administrative discretion in imposing limits to article 21, such as prior notice requirements, compared to the other mentioned articles, which stipulate that restrictions should be more carefully circumscribed by law.9 The limits must also be ‘necessary in a democratic society’. Identical words have been interpreted as incorporating a notion of proportionality into limitations to rights of freedom of expression under article 19.10 Presumably, the words mean the same in the context of freedom of assembly.11 INTERPRETATION OF ARTICLE 21

[19.07]

GRYB v BELARUS (1316/04)

The facts of this case are evident from the HRC’s findings of violation of both articles 19 and 21: ¶13.2. The author has claimed that following his participation in a peaceful rally in commemoration of the anniversary of the adoption of a 1994 Constitution of Belarus, he was fined and for this reason, he was not issued a lawyer’s licence, even if he had passed a qualification examination. . . . The Committee considers that these claims raise issues under articles 19 and 21 . . . of the Covenant. The State party has not addressed these claims specifically considering these provisions of the Covenant, but has explained that the author’s licence was not issued because, by having his administrative liability engaged for participation in an unauthorized meeting in violation of a Presidential Decree on Mass Actions, he had breached his duties as a lawyer set out in the Law on Lawyers. ¶13.3. The Committee recalls that freedom of opinion and freedom of expression are indispensable conditions for the full development of the person, that they are essential for any society, and that they constitute the foundation stone for every free and democratic society. It notes further that the rights and freedoms set up in articles 19 and 21 of the Covenant are not absolute and may be subject to limitations in certain situations. Under article 19, paragraph 3, such limitations must be provided by law and necessary for respect of the rights or reputations of others, or for the protection of national security or of public order (ordre public) or public health or morals. Similarly, the second sentence of article 21, of the Covenant, requires that no restrictions may be placed on the exercise of the right to peaceful assembly other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of rights and freedoms of others. ¶13.4. The Committee notes that in the present case, the State party has limited itself in explaining that the author had been fined lawfully, under the provisions of the Code of Administrative Offences, which, as a consequence, had led to the subsequent non-issuance 9 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 489–90, and K Partsch, ‘Freedom of Conscience and Expression, and Political Freedoms’, in L Henkin (ed), The International Bill of Rights (Columbia University Press, 1981), 232. See, on impermissible breadth of discretion, Pinkney v Canada (27/78), [16.08]; see also [1.83]. 10 11 See [18.33]. See also [12.27]. See ‘Siracusa Principles’ (1985) 7 HRQ 3.

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of his licence as a lawyer, in light of the provisions of the Law on Lawyers. The Committee notes that the State party, however, has not adduced any explanation on how the non-issuance of the author’s lawyer’s licence was justified and necessary, for purposes of article 19, paragraph 3, and/or the second sentence of article 21, of the Covenant. In the circumstances of the present case, and in absence of any other pertinent information on file, the Committee considers that the author’s rights under article 19, paragraph 2, and article 21, of the Covenant, have been violated in the present case.

Similarly straightforward breaches of article 21 arose in Zalesskaya v Belarus (1604/07), Chebotareva v Russian Federation (1866/09), Belyazeka v Belarus (1772/08) and, in a separate opinion, in Velichkin v Belarus (1022/01).12 [19.08]

KIVENMAA v FINLAND (412/90)

This is the major case on article 21. The facts were outlined by the complainant as follows: ¶1. The author of the communication is Ms. Auli Kivenmaa, a Finnish citizen and Secretary-General of the Social Democratic Youth Organisation. She claims to be a victim of a violation by Finland of articles 15 and 19, and alternatively, article 21, of the International Covenant on Civil and Political Rights. She is represented by counsel.

The facts: ¶2.1. On 3 September 1987, on the occasion of a visit of a foreign head of State and his meeting with the president of Finland, the author and about 25 members of her organisation, amid a larger crowd, gathered across from the Presidential Palace where the leaders were meeting, distributed leaflets and raised a banner critical of the human rights record of the visiting head of State. The police immediately took the banner down and asked who was responsible. The author identified herself and was subsequently charged with violating the Act on Public Meetings by holding a ‘public meeting’ without prior notification. ¶2.2. The above-mentioned Act on Public Meetings has not been amended since 1921, nor upon entry into force of the Covenant. Section 12(1) of the Act makes it a punishable offence to call a public meeting without notification to the police at least six hours before the meeting. The requirement of prior notification applies only to public meetings in the open air (section 3). A meeting is not public if only those with personal invitations can attend (section 1(2)). Section 1(1) provides that the purpose of a ‘meeting’ is to discuss public matters and to make decisions on them. Section 10 of the Act extends the requirement of prior notification to public ceremonial processions and marches. ¶2.3. Although the author argued that she did not organise a public meeting, but only demonstrated her criticism of the alleged human rights violations by the visiting head of State, the City Court, on 27 January 1988, found her guilty of the charge and fined her 438 markkaa. The Court was of the opinion that the group of 25 persons had, through their behaviour, been distinguishable from the crowd and could therefore be regarded as a public meeting. It did not address the author’s defence that her conviction would be in violation of the Covenant. . . .

12 The majority in Velichkin focused on a breach of art 19, but Mrs Wedgwood was correct to identify a separate breach of art 21.

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The main thrust of Kivenmaa’s complaint was that the relevant gathering (25 people protesting against a visiting Head of State) did not fall within the definition of ‘public meeting’ in the Act on Public Meetings (‘the Act’). Therefore, she argued that application of the Act in the circumstances was not ‘in conformity with the law’ as required by article 21. ¶3. . . . The author . . . argues that, even if the event could be interpreted as an exercise of the freedom of assembly, she still was not under obligation to notify the police, as the demonstration did not take the form of a public meeting, nor a public march, as defined by the said Act. . . . ¶8.5. In conclusion, the author states that she does not contest that restrictions on the exercise of the right of peaceful assembly may be justified, and that prior notification of public meetings is a legitimate form of such restrictions. However, the author does challenge the concrete application of the Act on Public Meetings in her case. She contends that this outdated, vague and ambiguous statute was used as the legal basis for police interference with her expressing concern about the human rights situation in the country of the visiting head of State. She claims that this interference was not in conformity with the law nor necessary in a democratic society within the meaning of article 21 of the Covenant. In this connection, it is again stressed that, by taking away the banner, the police interfered with the most effective method for the author to express her opinion.

The State Party defended its position as regards article 21. First, it defended the law itself: ¶7.6. With regard to the author’s allegation that she is a victim of a violation of article 21 of the Covenant, the State party recalls that article 21 allows restrictions on the exercise of the right to peaceful assembly. In Finland, the Act on Public Meetings guarantees the right to assemble peacefully in public, while ensuring public order and safety and preventing abuse of the right of assembly. Under the Act, public assembly is understood to be the coming together of more than one person for a lawful purpose in a public place that others than those invited also have access to. The State party submits that, in the established interpretation of the Act, the Act also applies to demonstrations arranged as public meetings or street processions. Article 3 of the Act requires prior notification to the police, at least six hours before the beginning of any public meeting at a public place in the open air. The notification must include information on the time and place of the meeting as well as on its organiser. Article 12, paragraph 1, of the Act makes it a punishable offence to call a public meeting without prior notification to the police. The State party emphasises that the Act does not apply to a peaceful demonstration by only one person. ¶7.7. . . . The State party submits that the prior notification requirement enables the police to take the necessary measures to make it possible for the meeting to take place, for instance by regulating the flow of traffic, and further to protect the group in their exercise of the right to freedom of assembly. In this context, the State party contends that, when a foreign head of State is involved, it is of utmost practical importance that the police be notified prior to the event. ¶7.8. The State party argues that the right of public assembly is not restricted by the requirement of a prior notification to the police. . . . The State party emphasises that the prior notification is necessary to guarantee the peacefulness of the public meeting.

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Secondly, the State Party defended the application of the law to Kivenmaa and her group: ¶7.9. As regards the specific circumstances of the present case, the State party is of the opinion that the actual behaviour of the author and her friends amounted to a public meeting within the meaning of article 1 of the Act on Public Meetings. In this context, the State party submits that, although the word ‘demonstration’ is not expressly named in the Act on Public Meetings, this does not signify that demonstrations are outside the scope of application of the Act. In this connection, the State party refers to general principles of legal interpretation. Furthermore, it notes that article 21 of the Covenant does not specifically refer to ‘demonstrations’ as a mode of assembly either. Finally, the State party argues that the requirement of prior notification is in conformity with article 21, second sentence. In this context, the State party submits that the requirement is prescribed by law, and that it is necessary in a democratic society in the interests of legitimate purposes, especially in the interest of public order.

The HRC delivered a fairly brief merits decision in favour of Kivenmaa: ¶9.2. The Committee finds that a requirement to notify the police of an intended demonstration in a public place six hours before its commencement may be compatible with the permitted limitations laid down in article 21 of the Covenant. In the circumstances of this specific case, it is evident from the information provided by the parties that the gathering of several individuals at the site of the welcoming ceremonies for a foreign head of State on an official visit, publicly announced in advance by the State party authorities, cannot be regarded as a demonstration. Insofar as the State party contends that displaying a banner turns their presence into a demonstration, the Committee notes that any restrictions upon the right to assemble must fall within the limitation provisions of article 21. A requirement to pre-notify a demonstration would normally be for reasons of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. Consequently, the application of Finnish legislation on demonstrations to such a gathering cannot be considered as an application of a restriction permitted by article 21 of the Covenant.

Unfortunately, the reasoning in the HRC’s only merits decision on article 21 is remarkably opaque.13 The HRC apparently agreed with Kivenmaa’s contention that the relevant gathering was not a ‘demonstration’, and was therefore wrongly interpreted so as to come within the Finnish Act. However, the HRC does not normally question the legal or factual findings of municipal courts [1.53]. Its reasons for overturning the Finnish Court’s decision here are unclear. [19.09] Though the HRC conceded that the Act itself may have came within the permissible limitations to article 21, it apparently felt that application of the Act in the circumstances went beyond the bounds of permissible limitations to article 21. That is, the HRC accepted that prior notice requirements were justifiable for reasons of national security and public order, but the imposition of such requirements on Kivenmaa’s gathering was inappropriate owing to the minimal ‘public order’ risks entailed therein. Such a decision arguably relies too much on hindsight. 13 T Murphy, ‘Freedom of Assembly’, in D Harris and S Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (Clarendon Press, 1995), 443.

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[19.10] No apparent discretion was given to Finnish authorities regarding the notification requirements as all public meetings were automatically subject to those requirements. In such circumstances, it seems fallacious for the HRC majority to have distinguished between the Act’s requirements and their application. [19.11] Perhaps the majority decision may be rationalized as a condemnation, albeit poorly executed, of blanket advance notice requirements for public meetings. Indeed, Kivenmaa herself had noted that the Act was ‘unacceptably broad’, as it could potentially apply to ‘almost any outdoor discussion between at least three persons’.14 The Committee’s Concluding Observations on Mauritius provide more evidence that such requirements are incompatible with the Covenant. The HRC censured a law requiring seven days’ prior notification of public meetings.15 The requisite notification period was, however, considerably longer than that required under the Finnish Act in Kivenmaa (six hours). In Concluding Observations on the Kyrgyz Republic, the HRC criticized the lack of appeal mechanisms in cases where permission was denied for the holding of public meetings.16 [19.12] In Concluding Observations on Kazakhstan, the HRC stated:17 ¶6. The Committee expresses concern at reports that the right to freedom of assembly is not respected in the State party. The Committee is particularly concerned at reports of undue restrictions on the right to freedom of assembly, such as the designation of areas for holding assemblies, which are routinely located in the outskirts of city centres in order to attract low public attention. The Committee is also concerned at reports that applications for permission to hold assemblies are often declined on the grounds of public order and national security, but that people continue to stage unauthorized assemblies, which put them at risk of being arrested and charged for breaching a number of administrative regulations, thereby severely restricting their right to freedom of assembly (art. 21).

Article 22 1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. 2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. 14

At para 8.4. (1996) UN doc CCPR/C/79/Add.60, para 20; see also Concluding Observations on Belarus (1997), UN doc CCPR/C/79/Add.86, para 18, where a requirement of 15 days’ prior notice of a demonstration did not conform to ‘the values in article 21’. See also Concluding Observations on Morocco (1999) UN doc CCPR/C/79/Add.113, para 24; Republic of Moldova (2002) UN doc CCPR/CO/75/ MDA, para 15. 16 (2000) UN doc CCPR/CO/69/KGZ, para 22. 17 (2011) UN doc CCPR/C/KAZ/CO/1. 15

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3. Nothing in this article shall authorise States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organise to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention. MEANING OF ‘ASSOCIATION’

[19.13] Freedom of association permits persons formally to join together in groups to pursue common interests. Examples of such groups are political parties, professional or sporting clubs, non-governmental organizations, trade unions, and corporations. In Wallman v Austria (1002/01), the HRC confirmed that ‘article 22 of the Covenant only applies to private associations, including for purposes of membership’.18 However, as noted below, the HRC confused the issue by then going on to examine whether a law providing for compulsory membership of commercial entities in a public organization was a breach of article 22, rather than dismissing the claim outright [19.34]. In PS v Denmark (397/90), the HRC found that a father’s complaint about restrictions on his ability to associate with his son did not raise issues under article 22.19 It was not clear whether this was because of the nature of the relationship, or whether there were too few people involved to constitute an ‘association’. Family groups are in any case protected under articles 17 and 20. LIMITS TO FREEDOM OF ASSOCIATION

[19.14] Article 22(2) contains a list of permissible limitations to the exercise of the right of freedom of association, which mirrors the lists of limitations in articles 12, 18, 19, and 21. The interpretation of these enumerated limitations with regard to these other provisions would be identical with regard to article 22.20 For example, the requirement that limitations be ‘necessary in a democratic society’ incorporates a notion of proportionality into the imposition of limits on freedom of association. MA v Italy (117/81) is a case where restrictions on freedom of association were found to be permissible. The ban on the Italian fascist party was found to be compatible with article 22, presumably for reasons of public order and national security.21 [19.15] The last sentence of article 22(2) authorizes ‘lawful’ restrictions on the exercise of freedom of association by members of the armed forces and the police. This seems to mean that these restrictions need only be prescribed by law, and are not bound by any requirement of proportionality or reasonableness.22 Furthermore, lawful restrictions can be for any purpose, rather than one of the listed purposes. These measures may have been designed to ensure the compatibility of laws aimed

18

At para 9.4. See ‘Siracusa Principles’, above, note 8. 22 Compare commentary at [16.06]ff and [11.91]ff. 20

21

19 At para 5.3. This case is discussed at [18.53].

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at preserving political neutrality amongst the police and the armed forces with the ICCPR.23 However, it seems possible under the existing text in article 22(2) to ban, by law, the military and the police from joining opposition political parties in order to induce political fidelity within the enforcement arm of the executive. Perhaps it would have been wise to retain the requirement of proportionality with regard to such restrictions. The HRC has not issued any interpretations of these special rules for the military and the police. [19.16]

LEE v REPUBLIC OF KOREA (1119/02)

The author was convicted of a crime due to his membership of Hanchongnyeon (the Korean Federation of Student Councils). The Republic of Korea justified the conviction thus: ¶4.1. [The State party argued] that the author’s conviction under article 7, paragraphs 1 and 3, of the National Security Law was justified by the necessity to protect its national security and democratic order. It submits that, in accordance with the limitation clauses in articles 18, paragraph 3, 19, paragraph 3, and 22, paragraph 2, of the Covenant, article 37, paragraph 2, of the Constitution of the Republic of Korea provides that the freedoms and rights of citizens may be restricted by law for the protection of national security, maintenance of law and order, or public welfare. Article 7, paragraph 1 and 3, of the National Security Law, which had been enacted to protect national security and the democratic order against the threat posed by North Korea’s revolutionary aim to ‘communize’ the Republic of Korea, had repeatedly been declared compatible with the Constitution by the Supreme Court and the Constitutional Court. The State party concludes that the author’s conviction, in a fair trial before independent tribunals, based on the proper application of article 7, paragraphs 1 and 3, of the National Security Law, was consistent with both the Covenant and the Constitution. ¶4.2. The State party dismisses the author’s defence that the ninth year Hanchongnyeon revised its agenda and that it could not be considered an anti-State organization, merely because some of its objectives resembled North Korean ideology. It argues that the organization’s programme, rules and documents reveal that Hanchongnyeon is ‘benefiting an anti-State organization and endangering the national security and liberal democratic principles of the Republic of Korea.’

The HRC found that the conviction breached article 22: ¶7.2. The issue before the Committee is whether the author’s conviction for his membership in Hanchongnyeon unreasonably restricted his freedom of association, thereby violating article 22 of the Covenant. The Committee observes that, in accordance with article 22, paragraph 2, any restriction on the right to freedom of association to be valid must cumulatively meet the following conditions: (a) it must be provided by law; (b) it may only be imposed for one of the purposes set out in paragraph 2; and (c) it must be ‘necessary in a democratic society’ for achieving one of these purposes. The reference to a ‘democratic society’ indicates, in the Committee’s view, that the existence and functioning of a plurality of associations, including those which peacefully promote ideas not favorably received by the government or the majority of the population, is one of the foundations of a democratic 23

Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 509.

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society. Therefore, the existence of any reasonable and objective justification for limiting the freedom of association is not sufficient. The State Party must further demonstrate that the prohibition of the association and the criminal prosecution of individuals for membership in such organizations are in fact necessary to avert a real, and not only hypothetical danger to the national security or democratic order and that less intrusive measures would be insufficient to achieve this purpose. ¶7.3. The author’s conviction was based on article 7, paragraphs 1 and 3, of the National Security Law. The decisive question which must therefore be considered is whether this measure was necessary for achieving one of the purposes set out in article 22, paragraph 2. The Committee notes that the State party has invoked the need to protect national security and its democratic order against the threat posed by the DPRK. However, it has not specified the precise nature of the threat allegedly posed by the author’s becoming a member of Hanchongnyeon. The Committee notes that the decision of the Supreme Court of the Republic of Korea, declaring this association an ‘enemy-benefiting group’ in 1997, was based on Article 7, paragraph 1, of the National Security Law which prohibits support for associations which ‘may’ endanger the existence and security of the State or its democratic order. It also notes that the State party and its courts have not shown that punishing the author for his membership in Hanchongnyeon, in particular after its endorsement of the ‘June 15 North-South Joint Declaration’ (2000), was necessary to avert a real danger to the national security and democratic order of the Republic of Korea. The Committee therefore considers that the State party has not shown that the author’s conviction was necessary to protect national security or any other purpose set out in article 22, paragraph 2. It concludes that the restriction on the author’s right to freedom of association was incompatible with the requirements of article 22, paragraph 2, and thus violated article 22, paragraph 1, of the Covenant.

The HRC imposed a very strict test regarding the limitations allowed to the right under article 22(2). For example, it indicated that such limitations must satisfy a ‘minimum impairment’ test, in that they must be the least restriction available in order to protect one of the objectives allowed under article 22(2). South Korea did not satisfy that test. [19.17] Procedural formalities for recognition of associations must not be so burdensome as to amount to substantive restrictions on article 22 rights. The requirement of ‘registration’ for non-governmental organizations in Belarus has been found to breach article 22 on numerous occasions. ZVOZSKOV v BELARUS (1039/01) ¶7.2. The key issue before the Committee is whether the refusal of the Belarus authorities to register ‘Helsinki XXI’ unreasonably restricted the author and the other 23 co-authors’ right to a freedom of association. The Committee observes that, in accordance with article 22, paragraph 2, any restriction on the right to freedom of association must cumulatively meet the following conditions: (a) it must be provided by law; (b) may only be imposed for one of the purposes set out in paragraph 2; and (c) must be ‘necessary in a democratic society’ for achieving one of these purposes. The reference to ‘democratic society’ in the context of article 22 indicates, in the Committee’s opinion, that the existence and operation of associations, including those which peacefully promote ideas not necessarily favourably viewed by the government or the majority of the population, is a cornerstone of a democratic society.

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¶7.3. In the present case, the restrictions placed on the authors’ right to freedom of association consist of several conditions related to the registration of a public association. According to the Supreme Court’s judgment of 20 August 2001, the only criterion which the ‘Helsinki XXI’ statutes and, respectively, the authors’ application for registration did not meet was a compliance with domestic law, under which public organizations do not have a right to represent and defend the rights of third persons. This restriction must be assessed in the light of the consequences which arise for the authors and their association. ¶7.4. The Committee firstly notes that the author and the State party disagree on whether domestic law indeed prohibits the defence of the rights and freedoms of citizens who are not members of a particular association. . . . Secondly, it considers that even if such restrictions were indeed prescribed by law, the State party has not advanced any argument as to why it would be necessary, for purposes of article 22, paragraph 2, to condition the registration of an association on a limitation of the scope of its activities to the exclusive representation and defence of the rights of its own members. Taking into account the consequences of the refusal of registration, i.e. the unlawfulness of operation of unregistered associations on the State party’s territory, the Committee concludes that the refusal of registration does not meet the requirements of article 22, paragraph 2. The authors’ rights under article 22, paragraph 1, have thus been violated.

Similar findings were made in Katsora et al v Belarus (1383/2005) and Kungurov v Uzbekistan (1478/06). The HRC has also expressed concern over such registration procedures in Concluding Observations.24 [19.18]

KORNEENKO et al v BELARUS (1274/04)

The authors’ NGO, ‘Civil Initiatives’, was dissolved under State law. That is, its registration was removed. This circumstance was found to breach article 22. ¶7.4. In the present case, the court order dissolving ‘Civil Initiatives’ is based on two types of perceived violations of the State party’s domestic law: (1) improper use of equipment, received through foreign grants, for the production of propaganda materials and the conduct of propaganda activities; and (2) deficiencies in the association’s documentation. These two groups of legal requirements constitute de facto restrictions and must be assessed in the light of the consequences which arise for the author and ‘Civil Initiatives’. ¶7.5. On the first point, the Committee notes that the author and the State party disagree on whether ‘Civil Initiatives’ indeed used its equipment for the stated purposes. It considers that even if ‘Civil Initiatives’ used such equipment, the State party has not advanced any argument as to why it would be necessary, for purposes of article 22, paragraph 2, to prohibit its use ‘for the preparation of gatherings, meetings, street processions, demonstrations, pickets, strikes, production and the dissemination of propaganda materials, as well as the organization of seminars and other forms of propaganda activities’. ¶7.6. On the second point, the Committee notes that the parties disagree over the interpretation of domestic law and the State party’s failure to advance arguments as to which of the three deficiencies in the association’s documentation triggers the application of the restrictions spelled out in article 22, paragraph 2, of the Covenant. Even if ‘Civil Initiatives’’ 24 Concluding Observations on Belarus (1997) UN doc CCPR/C/79/Add.86, para 19; Lithuania (1997) UN doc CCPR/C/79/Add.87, para 20; Russian Federation (2009) UN doc CCPR/C/RUS/CO/6, para 27.

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documentation did not fully comply with the requirements of domestic law, the reaction of the State party’s authorities in dissolving the association was disproportionate. ¶7.7 Taking into account the severe consequences of the dissolution of ‘Civil Initiatives’ for the exercise of the author’s right to freedom of association, as well as the unlawfulness of the operation of unregistered associations in Belarus, the Committee concludes that the dissolution of ‘Civil Initiatives’ does not meet the requirements of article 22, paragraph 2 and is disproportionate. The author’s rights under article 22, paragraph 1, have thus been violated.

A similar decision was made in Belyatsky v Belarus (1296/04). [19.19] Regarding the Russian Federation, the HRC has expressed concern over the introduction of laws which discouraged foreign funding to local non-governmental organizations.25 In Concluding Observations on Cameroon, the HRC noted with concern the absence of any recognized human rights NGO in the country, and the small number of qualified NGOs generally.26 TRADE UNION RIGHTS

[19.20] Article 22(1) specifically protects membership of a particular type of associations, trade unions. Trade unions are employee organizations designed to further the common interests of their members. Their specific mention in article 22(1) is indicative of the historical persecution of trade unions. Advocation and pursuance of labour rights often clashes with the interests of big business and governments. [19.21] Article 22(3) specifically preserves the sanctity of obligations under ILO Convention 87 of 1948. This Convention guarantees certain rights to workers’ organizations and their members, so article 22(3) seems to underline the protection offered to trade unions by article 22. In view of article 5(2), however, which prohibits States Parties from using the ICCPR as a pretext to derogate from other treaty obligations, article 22(3) seems superfluous.27 [19.22] In Concluding Observations on Senegal, the HRC indicated further elements to trade union protection in article 22:28 ¶16. The Committee is concerned over the lack of full enjoyment of freedom of association, in particular the fact that foreign workers are barred from holding official positions in trade unions, and that trade unions may be dissolved by the executive.

[19.23] Whilst article 22 guarantees one’s right to freely ‘form and join trade unions for the protection of [one’s] interests’, it must be asked to what extent article 22 protects the means by which trade union members may pursue their 25 Concluding Observations on the Russian Federation (2009) UN doc CCPR/C/RUS/CO/6, para 27. See also Concluding Observations on Ethiopia (2011) UN doc CCPR/C/ETH/CO/1, para 25. 26 (2010) UN doc CCPR/C/CMR/CO/4, para 26. 27 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 510–12. 28 (1997) UN doc CCPR/C/79/Add.82.

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common interests. JB et al v Canada (118/82), the ‘Alberta Unions Case’, raised the issue of whether article 22 protects the right to strike. [19.24]

JB et al v CANADA (118/82)

The facts of the case are outlined immediately below: ¶1.1. The authors of the communication (initial letter dated 5 January 1982 and seven subsequent letters) are J. B., P. D., L. S., T. M., D. P. and D. S., in their personal capacities and as members of the executive committee of the Alberta Union of Provincial Employees, Canada. They are represented by the Alberta Union of Provincial Employees through legal counsel. ¶1.2. The authors refer to the prohibition to strike for provincial public employees in the Province of Alberta under the Alberta Public Service Employee Relations Act of 1977 and claim that such prohibition constitutes a breach by Canada of article 22 of the International Covenant on Civil and Political Rights.

The HRC majority decided that article 22 did not incorporate any right to strike: ¶6.2. The question before the Committee is whether the right to strike is guaranteed by article 22 of the International Covenant on Civil and Political Rights. . . . Since the right to strike is not expressis verbis included in article 22, the Committee must interpret whether the right to freedom of association necessarily implies the right to strike, as contended by the authors of the communication. The authors have argued that such a conclusion is supported by decisions of organs of the International Labour Organisation in interpreting the scope and the meaning of labour law treaties enacted under the auspices of ILO. The Human Rights Committee has no qualms about accepting as correct and just the interpretation of those treaties by the organs concerned. However, each international treaty, including the International Covenant on Civil and Political Rights, has a life of its own and must be interpreted in a fair and just manner, if so provided, by the body entrusted with the monitoring of its provisions. ¶6.3. In interpreting the scope of article 22, the Committee has given attention to the ‘ordinary meaning’ of each element of the article in its context and in the light of its object and purpose (article 31 of the Vienna Convention on the Law of Treaties). The Committee has also had recourse to supplementary means of interpretation (article 32 of the Vienna Convention on the Law of Treaties) and perused the travaux préparatoires of the Covenant on Civil and Political Rights. . . . [The HRC then examined the travaux préparatoires of article 22, and found no mention of a right to strike] . . . Thus the Committee cannot deduce from the travaux préparatoires that the drafters of the Covenant on Civil and Political Rights intended to guarantee the right to strike. ¶6.4. The conclusions to be drawn from the drafting history are corroborated by a comparative analysis of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Article 8, paragraph 1 (d), of the International Covenant on Economic, Social and Cultural Rights recognises the right to strike, in addition to the right of everyone to form and join trade unions for the promotion and protection of his economic and social interests, thereby making it clear that the right to strike cannot be considered as an implicit component of the right to form and join trade unions. Consequently, the fact that the International Covenant on Civil and Political

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Rights does not similarly provide expressly for the right to strike in article 22, paragraph 1, shows that this right is not included in the scope of this article, while it enjoys protection under the procedures and mechanisms of the International Covenant on Economic, Social and Cultural Rights subject to the specific restrictions mentioned in article 8 of that instrument. . . . ¶7. In the light of the above, the Human Rights Committee concludes that the communication is incompatible with the provisions of the Covenant and thus inadmissible ratione materiae under article 3 of the Optional Protocol. . . .

[19.25] The authors had argued that article 22(3) implied a right to strike within article 22: ¶5.1. [The authors] submit that the communication is indeed compatible with the provisions of the Covenant, and refer to the relevance of article 22, paragraph 3 . . . It is implied, they argue, that a denial of the right to strike would prejudice the guarantees of ILO Convention No. 87. Moreover, an interpretation of article 22, paragraph 1, of the Covenant would also have to take into consideration other international instruments, including ILO Convention No. 87, which is an elaboration of the principles of freedom of association in international law. It is submitted that in a series of decisions the Committee on Freedom of Association of ILO has determined that the right to strike derives from article 3 of ILO Convention No. 87 and that it is an essential means by which workers can promote and defend their occupational interests. In particular, the authors point out that, in four cases, the Committee on Freedom of Association has considered the provisions of the Alberta Public Service Employee Relations Act and has found that the statute does not comply with the guarantee of freedom of association contained in Convention No. 87. The Committee on Freedom of Association has accordingly requested the Canadian Government ‘to re-examine the provisions in question in order to confine the ban on strikes to services which are essential in the strict sense of the term’. The ILO Committee of Experts on the Application of Conventions and Recommendations it is argued, has also reaffirmed the importance of the right to strike in the non-essential public service.

The HRC’s response to this argument confirms the minimal significance of article 22(3) [19.21]: ¶6.5. As to the importance which the authors appear to attach to article 22, paragraph 3 (para. 5.1 above), of the Covenant on Civil and Political Rights, the Committee observes that the State party has in no way claimed that article 22 authorises it to take legislative measures or to apply the law to the detriment of the guarantees provided for in ILO Convention No. 87.

[19.26] A sizeable minority of Mrs Higgins, and Messrs Lallah, Mavrommatis, Opsahl, and Wako dissented in the following terms: ¶1. In its decision the Committee states that the issue before it is whether the right to strike is guaranteed by article 22 of the International Covenant on Civil and Political Rights; and, finding that it is not, it declares the communication inadmissible. ¶2. We regret that we cannot share this approach to the issues in this case. We note that in Canada, as in many other countries, there exists, in principle, a right to strike, and that the complaint of the authors concerns the general prohibition of the exercise of such right for public employees in the Alberta Public Service Employee Relations Act. We believe that the question that the Committee is required to answer at this stage is whether article 22

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alone or in conjunction with other provisions of the Covenant necessarily excludes, in the relevant circumstances, an entitlement to strike. ¶3. Article 22 provides that ‘Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.’ The right to form and join trade unions is thus an example of the more general right to freedom of association. It is further specified that the right to join trade unions is for the purpose of protection of one’s interests. In this context we note that there is no comma after ‘trade unions’, and as a matter of grammar ‘for the protection of his interests’ pertains to ‘the right to form and join trade unions’ and not to freedom of association as a whole. It is, of course, manifest that there is no mention of the right to strike in article 22, just as there is no mention of the various other activities, such as holding meetings, or collective bargaining, that a trade-unionist may engage in to protect his interests. We do not find that surprising, because it is the broad right of freedom of association which is guaranteed by article 22. However, the exercise of this right requires that some measure of concerted activities be allowed; otherwise it could not serve its purposes. To us, this is an inherent aspect of the right granted by article 22, paragraph 1. Which activities are essential to the exercise of this right cannot be listed a priori and must be examined in their social context in the light of the other paragraphs of this article. ¶4. The drafting history clearly shows that the right of association was dealt with separately from the right to form and join trade unions. The travaux préparatoires indicate that in 1952 the right to strike was proposed only for the draft article on trade unions. This is what we would have expected. It was at that time rejected. They show also that in 1957, when the right to strike (subject to certain limitations) was accepted as an amendment to the draft article on the right to form and join trade unions, such an amendment was neither introduced nor discussed with respect to the draft covenant on civil and political rights. The reason seems to us both clear and correct—namely, that because what is now article 22 of the Covenant on Civil and Political Rights deals with the right of association as a whole, concerning clubs and societies as well as trade unions, mentioning particular activities such as strike action would have been inappropriate. ¶5. We therefore find that the travaux préparatoires are not determinative of the issue before the Committee. Where the intentions of the drafters are not absolutely clear in relation to the point at hand, article 31 of the Vienna Convention also directs us to the object and purpose of the treaty. This seems to us especially important in a treaty for the promotion of human rights, where limitation of the exercise or rights, or upon the competence of the Committee to review a prohibition by a State of a given activity, are not readily to be presumed. ¶6. We note that article 8 of the International Covenant on Economic, Social and Cultural Rights, having spoken of the right of everyone to form trade unions and join the union of his choice, goes on to speak of ‘the right to strike, provided that it is exercised in conformity with the laws of the particular country’. While this latter phrase gives rise to some complex legal issues, it suffices for our present purpose that the specific aspect of freedom of association which is touched on as an individual right in article 22 of the Covenant on Civil and Political Rights, but dealt with as a set of distinctive rights in article 8, does not necessarily exclude the right to strike in all circumstances. We see no reason for interpreting this common matter differently in the two Covenants. ¶7. We are also aware that the ILO Committee on Freedom of Association, a body singularly well placed to pronounce authoritatively on such matters, has held that the

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general prohibition of strikes for public employees contained in the Alberta Public Service Employee Relations Act was not in harmony with article 10 of ILO Convention No. 87 ‘ . . . since it constituted a considerable restriction on the opportunities open to trade unions to further and defend the interests of their members.’ While we do not at this stage purport to comment on the merits, we cannot fail to notice that the ILO finding is based on the furtherance and defence of interests of trade-union members; and article 22 also requires us to consider that the purpose of joining trade union is to protect one’s interests. Again, we see no reason to interpret article 22 in a manner different from ILO when addressing a comparable consideration. In this regard we note that article 22, paragraph 3, provides that nothing in that article authorises a State party to ILO Convention No. 87 to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention. ¶8. We cannot see that a manner of exercising a right which has, under certain leading and widely ratified international instruments, been declared to be in principle lawful, should be declared to be incompatible with the Covenant on Civil and Political Rights. ¶9. Whereas article 22, paragraph 1, deals with the right of freedom of association as such, paragraph 2 deals with the extent of the exercise of the right which necessarily includes the means which may be resorted to by a member of a trade union for the protection of his interests. ¶10. Whether the right to strike is a necessary element in the protection of the interests of the authors, and if so whether it has been unduly restricted, is a question on the merits, that is to say, whether the restriction imposed in Canada are or are not justifiable under article 22, paragraph 2. But we do not find the communication inadmissible on this ground.

After consideration of other possible grounds of inadmissibility, the minority found the complaint admissible. [19.27] In the admissibility proceedings, the HRC should have focused on the scope of article 22, which protects all associations. Issues regarding the specific protection of trade unions under article 22 should not have been considered until the merits stage of proceedings. Therefore, the minority, which focused on the scope of protection for associations per se rather than upon determination of the scope of protection for trade unions in particular, exhibited a more coherent method of interpretation. [19.28] It is surely doubtful that the minimal protection offered to trade union activities under article 22 by the majority decision translates into minimal protection for the activities of all associations. Otherwise, the majority would be reading article 22 in a very narrow, non-purposive way. The freedom to join an association is fairly narrow if only the existence of the association is guaranteed, but not the necessary activities of the association. On the other hand, there appears to be no justifiable reason for singling trade unions out for special disadvantage as the majority has apparently done. [19.29] The HRC majority seemed overly concerned to separate the subject matters of the ICCPR and its sister Covenant, the International Covenant on Economic Social and Cultural Rights (ICESCR). The right to strike is expressly protected in article 8(1)(d), ICESCR. Its classification as an economic and social

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right seemed to preclude the majority from including the right to strike as an aspect of a civil and political right. In contrast, in later cases decided under article 26,29 the HRC sanctioned considerable overlap between the subject matters of the two Covenants. [19.30] The Alberta Unions case was a very early case declared inadmissible in 1986. In more recent Concluding Observations, the HRC has expressed concern about restrictions on the right to strike.30 This may herald a change of heart regarding the scope of article 22 protection for trade union members. For example, in Concluding Observations on Chile, the HRC has stated:31 ¶14. Although it is aware of the labour law reform that took place in 2005, the Committee is still concerned about continuing restrictions on trade union rights in Chile and about reports that in practice, changes are made unilaterally to the working day, striking workers are replaced, and threats of dismissal are used to prevent the formation of trade unions. In many cases, it would not be practicable for workers to bring complaints because trials are excessively long and costly (article 22 of the Covenant). The State party should remove all legislative and other obstacles to the full exercise of the rights established under article 22 of the Covenant. The State party should streamline employment procedures and make legal aid available to workers to enable their complaints to be successfully heard. FREEDOM NOT TO ASSOCIATE

[19.31]

GAUTHIER v CANADA (633/95)

The author’s complaint related to his exclusion from full membership of the Parliamentary Press Gallery, a private organization. As a consequence of his exclusion, he was denied full access to media facilities at the federal Parliament, as such access was restricted by Parliamentary rules to Press Gallery members. The author submitted that the facts amounted, inter alia, to a restriction of his right to freedom of association. The State Party argued: ¶11.8. With regard to article 22 of the Covenant, the State party observes that the author is not being forced by the Government to join any association. He is free not to associate with the Press Gallery, nor is his ability to practice the profession of journalism conditioned in any way upon his membership of the Press Gallery.

The HRC majority found that the article 22 claim was unsubstantiated. However, a substantial minority found that the facts constituted a breach of article 22. Mrs Evatt, Mrs Medina Quiroga, Messrs Solari Yrigoyen and Bhagwati, and Lord Colville stated the following, with which Messrs Kretzmer and Lallah essentially agreed: In regard to article 22, the author’s claim is that requiring membership in the Press Gallery Association as a condition of access to the Parliamentary press facilities violated his rights See eg decision in Broeks v Netherlands (172/84) [23.14]. See also [1.104]. See eg Concluding Observations on Chile (1999) UN doc CCPR/C/79/Add.104, para 25; Lithuania (2004) UN doc CCPR/CO/80/LTU, para 18; Estonia (2010) UN doc CCPR/C/EST/CO/3, para 15. 31 (2007) UN doc CCPR/C/CHL/CO/5. 29 30

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under article 22 read with article 19. The right to freedom of association implies that in general no one may be forced by the State to join an association. When membership of an association is a requirement to engage in a particular profession or calling, or when sanctions exist on the failure to be a member of an association, the State party should be called on to show that compulsory membership is necessary in a democratic society in pursuit of an interest authorised by the Covenant. In this matter, the Committee’s deliberations in paragraph 13.6 of the Views [18.61] make it clear that the State party has failed to show that the requirement to be a member of a particular organisation was a necessary restriction under paragraph 2 of article 22 in order to limit access to the press gallery in Parliament for the purposes mentioned. The restrictions imposed on the author are therefore in violation of article 22 of the Covenant.

[19.32] The HRC majority had initially, ex officio, found the article 22 issue to be admissible:32 ¶9.4. The Committee further considered that the question whether the State party can require membership in a private organisation as a condition for the enjoyment of the freedom to seek and receive information, should be examined on its merits, as it might raise issues not only under article 19, but also under articles 22 and 26 of the Covenant.

Its subsequent decision that the article 22 claim was unsubstantiated is puzzling. As no reasons are offered for its apparent volte-face, the minority opinions in this regard are to be preferred. In any case, it seems likely, bearing in mind the admissibility decision, that the majority agreed that article 22 guarantees freedom from consequences for failing to join certain associations. [19.33] If the freedom of association incorporates both freedom to join associations and freedom not to associate, there is the potential for a clash of rights. What if a person wishes to join a particular association, and feels that that association has arbitrarily excluded him or her? This situation arose in Arenz et al v Germany (1138/02). The authors were Scientologists who were expelled from one of Germany’s major political parties, the Christian Democratic Union (CDU) on the basis of their religion. The expulsions arose after the CDU adopted a resolution which determined that Scientology was incompatible with CDU membership. The authors challenged their expulsions in court without success. The German courts found that the CDU’s decision was not arbitrary, and that they would not interfere with the political party’s autonomy over its membership. The authors claimed a breach of a number of rights, including articles 18 [17.24] and 22. The HRC ruled all claims inadmissible. It ultimately found that it could not interfere with the German courts’ findings regarding the balance of interests between the authors and the party. In effect, the HRC endorsed the Germany courts’ upholding of the CDU’s freedom not to associate with Scientologists over the rights of the latter. It is interesting to speculate whether the HRC would have interfered in the decision if the CDU had excluded members of a major religion, such as Buddhists, Jews, or Muslims, or if it had excluded people on the basis of race. 32 The author had not initially raised art 22, relying instead on the art 19 rights of freedom of expression. See [18.61].

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WALLMAN v AUSTRIA (1002/01)

In this case, the author’s limited partnership, Hotel zum Hirschen Josef Wallmann, was required by law to join the Salzburg regional section of Austria’s Chamber of Commerce and pay associated membership fees. The author claimed that the law breached her rights to freedom of association including the right to found or join another association for similar commercial purposes.33 The authors elaborated on their claims: ¶3.2. The authors submit that the applicability of article 22 to compulsory membership in the Austrian Federal Chamber and Regional Chambers of Commerce has to be determined on the basis of international standards. Their qualification as public law organizations under Austrian legislation does not reflect their true character, since the Chambers: (1) represent the interests of the businesses that make up their membership, rather than the public interest; (2) engage themselves in a broad range of economic, profit-oriented activities; (3) assist their members in establishing business contacts; (4) exercise no disciplinary powers vis-à-vis their members; and (5) lack the characteristics of professional organizations in the public interest, their common feature being limited to ‘doing business’. The authors contend that article 22 of the Covenant is applicable to the Chambers, since they perform the functions of a private organization representing its economic interests. ¶3.3. The authors argue that even if the Chambers were to be considered public law organizations, the financial burden placed on their members by the annual membership fees effectively prevents members from associating with one another outside the Chambers, since individual businesspeople cannot reasonably be expected to make similar contributions in addition to the Chambers’ annual membership fees, to fund alternative private associations to enhance their economic interests. The annual membership fees therefore serve, and are calculated, as a de facto prohibition of the exercise of the right freely to associate outside the Chambers. ¶3.4. For the authors, the compulsory membership scheme is not a necessary restriction to further any legitimate State interest within the meaning of article 22, paragraph 2, of the Covenant. There is no such compulsory membership in most other European States.

The HRC rejected the claim: ¶9.2. The issue before the Committee is whether the imposition of annual membership fees on the ‘Hotel zum Hirschen’ (third author) by the Salzburg Regional Chamber of Commerce amounts to a violation of the second author’s right to freedom of association under article 22 of the Covenant. ¶9.3. The Committee has noted the authors’ contention that, although the Chamber of Commerce constitutes a public law organization under Austrian law, its qualification as an ‘association’ within the meaning of article 22, paragraph 1, of the Covenant has to be determined on the basis of international standards, given the numerous non-public functions of the Chamber. It has equally taken note of the State party’s argument that the Chamber forms a public organization under Austrian law, on account of its participation in matters of public administration as well as its public interest objectives, therefore not falling under the scope of application of article 22. 33

At para 3.1.

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¶9.4. The Committee observes that the Austrian Chamber of Commerce was founded by law rather than by private agreement, and that its members are subordinated by law to its power to charge annual membership fees. It further observes that article 22 of the Covenant only applies to private associations, including for purposes of membership. ¶9.5. The Committee considers that once the law of a State party establishes commerce chambers as organizations under public law, these organizations are not precluded by article 22 of the Covenant from imposing annual membership fees on its members, unless such establishment under public law aims at circumventing the guarantees contained in article 22. However, it does not appear from the material before the Committee that the qualification of the Austrian Chamber of Commerce as a public law organization, as envisaged in the Austrian Constitution as well as in the Chamber of Commerce Act of 1998, amounts to a circumvention of article 22 of the Covenant. The Committee therefore concludes that the third author’s compulsory membership in the Austrian Chamber of Commerce and the annual membership fees imposed since 1999 do not constitute an interference with the second author’s rights under article 22.

The HRC found that the requirement of compulsory membership in and the fees imposed by the Chamber of Commerce, a public organization, on its members did not breach article 22. It seems such compulsory membership is permitted so long as the relevant public organization is not set up to circumvent article 22. It is not clear how such circumvention is determined. [19.35] Does article 22 prohibit compulsory union membership (ie where one is effectively denied employment in a profession unless one joins the relevant trade union)? Compulsory union membership enhances the power of trade unions to protect their members’ interests by promoting universal membership; the larger the union the larger its bargaining power. Nevertheless, compulsory union membership may be anathema to one’s ‘freedom’ of association, which implies liberty to join or not to join organizations. In light of the HRC’s admissibility decision and the strong dissent in Gauthier, it is likely that the HRC would condemn ‘closed shop’ practices. On the other hand, compulsory union membership could arguably be justified as ‘protecting the rights of others’, such as the right to work or the right to fair working conditions.34

Conclusion [19.36] Unfortunately, articles 21 and 22 have been the subject of very little HRC jurisprudence. Most of the cases manifest straightforward violations and therefore add little to our understanding of the provisions. The major case on article 21, Kivenmaa v Finland (412/90) exhibits poor reasoning, and is of little help in interpreting the article. A key case on article 22, JB et al v Canada (118/82), deals with the rights of trade union members. The majority interpreted article 22 rather narrowly so as to offer minimal protection for the activities, as opposed to the existence, of trade unions. More recent Concluding Observations may, however, 34

These rights are guaranteed in, respectively, arts 6 and 7 ICESCR.

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signal a retreat from the conservative reasoning in Gauthier v Canada (633/95), which indicates that article 22 also guarantees freedom from coerced association, though that right was not upheld in Wallman v Austria (1001/01). [19.37] One can presume that limitations to these provisions would be interpreted in similar ways to identical words in other provisions, such as the article 19 guarantee of freedom of expression. In the continued absence of many significant cases, the HRC should issue General Comments to expand on the meaning of these two articles.

20 Protection of the Family—Article 23 • Definition of a Family . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Protection of the Family . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Residency Rights and Family Unity . . . . . . . . . . . . . . . . . . . . . . . . . • Forced Removal of Children from a Parent . . . . . . . . . . . . . . . . . . . . • Article 23(2): Right to Marry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Article 23(2): Right to Found a Family . . . . . . . . . . . . . . . . . . . . . . . . . • Article 23(3): Requirement of Consent to Marriage . . . . . . . . . . . . . . . • Article 23(4): Right of Equality in Marriage. . . . . . . . . . . . . . . . . . . . . • Child Access and Custody upon Dissolution of Marriage . . . . . . . . . • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[20.06] [20.16] [20.17] [20.38] [20.41] [20.47] [20.51] [20.53] [20.58] [20.68]

ARTICLE 23 1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognised. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

[20.01] Article 23 guarantees rights of protection to the family. Rights regarding marriage and rights of equality between spouses are also guaranteed. Despite the exalted position it confers on ‘the family’ as a fundamental societal institution, article 23 does not act as a barrier to protect ‘the family’ from legitimate interference, such as measures to combat intrafamilial violence,1 or neglect and abuse of a child.2 [20.02]

GENERAL COMMENT 19

¶1. Article 23 of the International Covenant on Civil and Political Rights recognises that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State. Protection of the family and its members is also guaranteed, directly or indirectly, by other provisions of the Covenant. Thus, article 17 establishes a 1 Victims of intrafamilial violence would benefit from countervailing rights, such as those under art 9(1) (security of the person [11.03]). See G Van Bueren, ‘The International Protection of Family Members’ Rights as the 21st Century Approaches’ (1995) 17 HRQ 732, 748–56. 2 See [21.38]ff.

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prohibition on arbitrary or unlawful interference with the family. In addition, article 24 of the Covenant specifically addresses the protection of the rights of the child, as such or as a member of a family. In their reports, States parties often fail to give enough information on how the State and society are discharging their obligation to provide protection to the family and the persons composing it.

[20.03] As stressed in General Comment 19, other Covenant rights also provide family rights. In particular, the article 17 guarantee of privacy prohibits ‘arbitrary interferences’ with one’s family. Article 17(1) guarantees persons a negative right to be free from arbitrary government intervention with their family. Article 17(2) guarantees that people will be protected from ‘such interference’ by law, so it incorporates a positive obligation.3 Article 23 appears to take those positive obligations further in guaranteeing families positive rights of protection, such as provision of appropriate financial assistance or tax concessions.4 However, despite an apparent qualitative difference between the article 17 and 23 guarantees, most cases regarding family rights have concerned violations, or exonerations, of States under both articles.5 [20.04]

GENERAL COMMENT 19

¶3. Ensuring the protection provided for under article 23 of the Covenant requires that States parties should adopt legislative, administrative or other measures. States parties should provide detailed information concerning the nature of such measures and the means whereby their effective implementation is assured. In fact, since the Covenant also recognises the right of the family to protection by society, States parties’ reports should indicate how the necessary protection is granted to the family by the State and other social institutions, whether and to what extent the State gives financial or other support to the activities of such institutions, and how it ensures that these activities are compatible with the Covenant.

[20.05] In Aumeeruddy-Cziffra et al v Mauritius (35/78), the HRC stated, on the scope of article 23: ¶9.2(b) 2 (ii) 1. . . . The Committee is of the opinion that the legal protection or measures a society or a State can afford to the family may vary from country to country and depend on different social, economic, political and cultural conditions and traditions.

Article 23 may be the only ICCPR right that is ‘economically relative’, in that the level of entitlement can vary according to the economic circumstances of States Parties [1.133]. Indeed, it is debatable whether article 23 could ever ground a right to financial assistance per se. In Oulajin and Kaiss v Netherlands (406, 426/90), the HRC found that the State’s failure to provide child benefits in respect of the authors’ foster children abroad (the authors’ nephews), did not raise issues regarding protection of the family under article 17 or, presumably, article 23.

3

See commentary at [16.15]ff. See also M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005), 518, on the negative/positive distinction between arts 17 and 23. However, he concedes that the distinction is ‘difficult to maintain in practice’. 5 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 518. 4

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Definition of a Family [20.06]

GENERAL COMMENT 16

¶5. Regarding the term ‘family’, the objectives of the Covenant require that for purposes of article 17 this term be given a broad interpretation to include all those comprising the family as understood in the society of the State party concerned. . . . GENERAL COMMENT 19 ¶2. The Committee notes that the concept of the family may differ in some respects from State to State, and even from region to region within a State, and that it is therefore not possible to give the concept a standard definition. However, the Committee emphasises that, when a group of persons is regarded as a family under the legislation and practice of a State, it must be given the protection referred to in article 23. Consequently, States parties should report on how the concept and scope of the family is construed or defined in their own society and legal system. Where diverse concepts of the family, ‘nuclear’ and ‘extended’, exist within a State, this should be indicated with an explanation of the degree of protection afforded to each. In view of the existence of various forms of family, such as unmarried couples and their children or single parents and their children, States parties should also indicate whether and to what extent such types of family and their members are recognised and protected by domestic law and practice.6

The HRC, in its General Comments, clearly gives States a certain cultural leeway in determining the definition of the ‘family’ for the purposes of article 23. However, the State Party does not have exclusive jurisdiction over the definition; otherwise the article 23 guarantee could be severely diluted. A State could not limit the definition by applying structures or values which breach international human rights standards.7 Furthermore, a State cannot prescribe a narrower definition of ‘family’ than that adopted within that State’s society.8 [20.07]

HENDRIKS v NETHERLANDS (201/85)

¶10.3. The words ‘the family’ in article 23, paragraph 1, do not refer solely to the family home as it exists during the marriage. The idea of the family must necessarily embrace the relations between parents and child. Although divorce legally ends a marriage, it cannot dissolve the bond uniting father—or mother—and child: this bond does not depend on the continuation of the parents’ marriage. It would seem that the priority given to the child’s interests is compatible with this rule.

The definition of a ‘family’ is not therefore confined by the concept of marriage. States may recognize a variety of living arrangements that may constitute a ‘family’, all of which require protection under the Covenant. 6

See also General Comment 28, para 27. Van Bueren, ‘The International Protection of Family Members’ Rights as the 21st Century Approaches’, 734–5. 8 See Hopu and Bessert v France (549/93) [20.14]. 7

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669

X v COLOMBIA (1361/05)

This case concerned a complaint of discrimination contrary to article 26 by a gay man with regard to access to the pension benefits of his deceased partner. The complaint was upheld by the HRC majority [23.56]. In dissent, Messrs Amor and Tawfik Khalil stated: . . . the question of ‘discrimination on grounds of sex or sexual orientation’ cannot be raised under article 26 in the context of positive benefits without taking account of article 23 of the Covenant, which stipulates that ‘the family is the natural and fundamental group unit of society’ and that ‘the right of men and women of marriageable age to marry and found a family shall be recognized’. That is to say, a couple of the same sex does not constitute a family within the meaning of the Covenant and cannot claim benefits that are based on a conception of the family as comprising individuals of different sexes.

It is unlikely that the HRC majority subscribe to such a homophobic view. While article 23(2), concerning the right to marry, has been interpreted as being a right of heterosexual couples only in Joslin v New Zealand (902/99) [20.42], that does not mean that article 23(1) precludes homosexual couples from being considered as having a familial relationship. [20.09] While a variety of living arrangements, both within and beyond the nuclear family, come within the concept of ‘family’, the requisite article 23 protection may differ according to the type of family concerned. For example, in a number of cases, the HRC has rejected complaints from unmarried couples regarding their different treatment compared to that of married couples under Dutch welfare laws.9 One must also note that article 23(2) to (4) confers special rights on married couples and within marriages.10 [20.10]

AS v CANADA (68/80)

In this case the author complained of the failure of Canadian immigration authorities to allow her adopted Polish daughter and grandson to join her as permanent residents in Canada. The State Party objected to the admissibility of the communication on the ground that the facts of the case did not reveal any breach of the rights protected under article 23: ¶5.1. . . . As regards article 23, which provides for the entitlement of the family to protection by the State, it is claimed that such protection requires a priori that an effective family life between the members of the family must have existed; it could not be concluded that B and her son had shared an effective family life with A.S., since B, after being adopted by A.S. in 1959, lived with her in Canada for two years only, whereafter she left the country in 1961 to return to Poland, where she married and had a son. The fact that A.S. and B have been living apart for 17 years clearly demonstrates that a prolonged family life does not exist and that therefore no breach of article 23 could be claimed by the author.

9 Danning v Netherlands (180/84), Sprenger v Netherlands (395/90), Hoofdman v Netherlands (602/94). See, on these cases, [23.77]–[23.78]. 10 See Balaguer Santacana v Spain (417/90), para 10.4 [20.63].

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The HRC agreed with the State Party: ¶8.2 (b). Articles 17 and 23 provide that no one shall be subjected to arbitrary or unlawful interference with his family and that the family is entitled to protection by the State; these articles are not applicable since, except, for a brief period of 2 years some 17 years ago, A.S. and her adopted daughter have not lived together as a family.

It is not clear whether the AS decision was in any way influenced by the fact that B was not AS’s biological daughter. Despite the AS decision, article 23 families may presumably include adopted members.11 [20.11]

BALAGUER SANTACANA v SPAIN (417/90)

The facts of this case are outlined below at [20.63]. ¶10.2. The State party has argued that article 23, paragraphs 1 and 4, do not apply to the case, as the author’s unstable relationship with Ms. Montalvo cannot be subsumed under the term ‘family’, and no marital ties between the author and Ms. Montalvo ever existed. The Committee begins by noting that the term ‘family’ must be understood broadly; it reaffirms that the concept refers not solely to the family home during marriage or cohabitation, but also to the relations in general between parents and child. Some minimal requirements for the existence of a family are, however, necessary, such as life together, economic ties, a regular and intense relationship, etc.

[20.12]

NGAMBI v FRANCE (1179/03)

The complaint concerned France’s failure to award a family reunion visa to the wife of a resident, Mr Ngambi. France had found that the marriage was essentially a sham. The HRC agreed with the State Party that the communication was inadmissible: ¶6.4. Article 23 of the Covenant guarantees the protection of family life including the interest in family reunification. The Committee recalls that the term ‘family’, for purposes of the Covenant, must be understood broadly as to include all those comprising a family as understood in the society concerned. The protection of such family is not necessarily obviated, in any particular case, by the absence of formal marriage bonds, especially where there is a local practice of customary or common law marriage. Nor is the right to protection of family life necessarily displaced by geographical separation, infidelity, or the absence of conjugal relations. However, there must first be a family bond to protect. The Committee notes that the authors submitted to French authorities documents supposedly attesting to the family relationship, but these documents were determined by French authorities to be fabricated. The Committee further notes that the authors have not effectively refuted these findings, thus giving the French authorities sufficient basis to deny the authors’ applications for a long-term visa and family reunification. The Committee considers that the authors have not substantiated their allegation that the right to protection of family life has been infringed by the French authorities.

[20.13] Hence, a formal marital relationship does not suffice to establish a sufficient familial connection for the purposes of article 23. Some degree of effective family life must exist. 11 Van Bueren, ‘The International Protection of Family Members’ Rights as the 21st Century Approaches’, 738.

Protection of the Family [20.14]

671

HOPU and BESSERT v FRANCE (549/93)

In this case the authors claimed to be victims of violations by France of articles 17 and 23 of the Covenant. The authors submitted the following facts and complaint to the Committee: ¶2.1. The authors are the descendants of the owners of a land tract (approximately 4.5 hectares) called Tetaitapu, in Nuuroa, on the island of Tahiti. They argue that their ancestors were dispossessed of their property by jugement de licitation of the Tribunal civil d’instance of Papeete on 6 October 1961. Under the terms of the judgment, ownership of the land was awarded to the Société hotelière du Pacifique sud (SHPS). Since the year 1988, the Territory of Polynesia is the sole shareholder of this company. ¶2.2. In 1990, the SHPS leased the land to the Société d’étude et de promotion hotelière, which in turn subleased it to the Société hotelière (RIVNAC). RIVNAC seeks to begin construction work on a luxury hotel complex on the site, which borders a lagoon, as soon as possible. Some preliminary work—such as the felling of some trees, cleaning the site of shrubs, fencing off of the ground—has been carried out. ¶2.3. The authors and other descendants of the owners of the land peacefully occupied the site in July 1992, in protest against the planned construction of the hotel complex. They contend that the land and the lagoon bordering it represent an important place in their history, their culture and their life. They add that the land encompasses the site of a pre-European burial ground and that the lagoon remains a traditional fishing ground and provides the means of subsistence for some thirty families living next to the lagoon. . . . ¶3.2. The authors . . . claim a violation of articles 17, paragraph 1, and 23, paragraph 1, on the ground that their forceful removal from the disputed site and the realisation of the hotel complex would entail the destruction of the burial ground, where members of their family are said to be buried, and because such removal would interfere with their private and their family lives.

In finding for the authors, the HRC gave a broad interpretation to the term ‘family’ so as to include a person’s ancestors. The majority made the following comments: ¶10.3. The authors claim that the construction of the hotel complex on the contested site would destroy their ancestral burial grounds, which represent an important place in their history, culture and life, and would arbitrarily interfere with their privacy and their family lives, in violation of articles 17 and 23. They also claim that members of their family are buried on the site. The Committee observes that the objectives of the Covenant require that the term ‘family’ be given a broad interpretation so as to include all those comprising the family as understood in the society in question. It follows that cultural traditions should be taken into account when defining the term ‘family’ in a specific situation. It transpires from the authors’ claims that they consider the relationship to their ancestors to be an essential element of their identity and to play an important role in their family life. This has not been challenged by the State party; nor has the State party contested the argument that the burial grounds in question play an important role in the authors’ history, culture and life. The State party has disputed the authors’ claim only on the basis that they have failed to establish a kinship link between the remains discovered in the burial grounds and themselves. The Committee considers that the authors’ failure to establish a direct kinship link cannot be held against them in the circumstances of the communication, where the burial grounds in question pre-date the arrival of European settlers and are recognised as including the forbears of the present Polynesian

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inhabitants of Tahiti. The Committee therefore concludes that the construction of a hotel complex on the authors’ ancestral burial grounds did interfere with their right to family and privacy. The State party has not shown that this interference was reasonable in the circumstances, and nothing in the information before the Committee shows that the State party duly took into account the importance of the burial grounds for the authors, when it decided to lease the site for the building of a hotel complex. The Committee concludes that there has been an arbitrary interference with the authors’ right to family and privacy, in violation of articles 17, paragraph 1, and 23, paragraph 1.

[20.15] In a dissenting opinion, Messrs Kretzmer, Buergenthal, Ando, and Lord Colville made the following comments: ¶3. The authors’ claim is that the State party has failed to protect an ancestral burial ground, which plays an important role in their heritage. It would seem that this claim could raise the issue of whether such failure by a State party involves denial of the right of religious or ethnic minorities, in community with other members of their group, to enjoy their own culture or to practise their own religion. However, for the reasons set out above, the Committee was precluded from examining this issue. Instead the Committee holds that allowing the building on the burial ground constitutes arbitrary interference with the authors’ family and privacy. We cannot accept these propositions. ¶4. In reaching the conclusion that the facts in the instant case do not give rise to an interference with the authors’ family and privacy, we do not reject the view, expressed in the Committee’s General Comment 16 on article 17 of the Covenant, that the term ‘family’ should ‘be given a broad interpretation to include all those comprising the family as understood in the society of the State party concerned.’ Thus, the term ‘family’, when applied to the local population in French Polynesia, might well include relatives, who would not be included in a family, as this term is understood in other societies, including metropolitan France. However, even when the term ‘family’ is extended, it does have a discrete meaning. It does not include all members of one’s ethnic or cultural group. Nor does it necessarily include all one’s ancestors, going back to time immemorial. The claim that a certain site is an ancestral burial ground of an ethnic or cultural group, does not, as such, imply that it is the burial ground of members of the authors’ family. The authors have provided no evidence that the burial ground is one that is connected to their family, rather than to the whole of the indigenous population of the area. The general claim that members of their families are buried there, without specifying in any way the nature of the relationship between themselves and the persons buried there, is insufficient to support their claim, even on the assumption that the notion of family is different from notions that prevail in other societies. We therefore cannot accept the Committee’s view that the authors have substantiated their claim that allowing building on the burial ground amounted to interference with their family. ¶5. The Committee mentions the authors’ claim ‘that they consider the relationship to their ancestors to be an essential element of their identity and to play an important role in their family life.’ Relying on the fact that the State party has challenged neither this claim nor the authors’ argument that the burial grounds play an important part in their history, culture and life, the Committee concludes that the construction of the hotel complex on the burial grounds interferes with the authors’ right to family and privacy. The reference by the Committee to the authors’ history, culture and life, is revealing. For it shows that the values that are being protected are not the family, or privacy, but cultural values. We share the concern of the Committee for these values. These values, however, are protected under

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article 27 of the Covenant and not the provisions relied on by the Committee. We regret that the Committee is prevented from applying article 27 in the instant case.12 . . . ¶7. We reach the conclusion that there has been no violation of the authors’ rights under the Covenant in the present communication with some reluctance. Like the Committee we too are concerned with the failure of the State party to respect a site that has obvious importance in the cultural heritage of the indigenous population of French Polynesia. We believe, however, that this concern does not justify distorting the meaning of the terms family and privacy beyond their ordinary and generally accepted meaning.13

Protection of the Family [20.16] An extreme violation of article 23(1) was found in Mulezi v Democratic Republic of the Congo (962/01). The author was severely persecuted by the DRC on political grounds. His wife was beaten and killed in retribution for her familial relationship with him. The violation was found with regard to both the author and his deceased wife. In such circumstances, the HRC will normally only find a violation of the right to life in article 6 or freedom from ill-treatment in article 7. RESIDENCY RIGHTS AND FAMILY UNITY

[20.17] Family unification is an important principle under article 23, as demonstrated in this Concluding Comment on Switzerland:14 ¶18. The Committee also notes that family reunification is not authorised immediately for foreign workers who settle in Switzerland, but only after 18 months, which, in the Committee’s view, is too long a period for the foreign worker to be separated from his family.

[20.18]

AUMEERUDDY-CZIFFRA et al v MAURITIUS (35/78)15

The authors, including three women married to aliens, complained about Mauritian legislation that conferred different residential rights on foreign spouses depending on their sex. Whereas foreign wives were accorded automatic residential rights, these rights were denied to foreign husbands. The HRC found that the legislation violated a number of ICCPR articles. On article 23, the HRC stated the following: ¶9.2 (b) 2 (ii) 1. . . . each of the couples concerned constitutes also a ‘family’ within the meaning of article 23 (1) of the Covenant, in one case at least—that of Mrs Aumeeruddy-Cziffra—also with a child. They are therefore as such ‘entitled to protection by society and the State’ . . . ¶9.2 (b) 2 (ii) 2. Again, however, the principle of equal treatment of the sexes applies by virtue of articles 2 (1), 3 and 26, of which the latter is also relevant because it refers particularly to the ‘equal protection of the law’. Where the Covenant requires a substantial 12 France has entered a reservation to art 27, which precluded consideration of this communication under that guarantee. See [26.09]. 13 The minority’s comments on the meaning of ‘privacy’ are excerpted at [16.05]. 14 (1996) UN doc CCPR/C/79/Add.70. 15 This case is also known as the Mauritian Women’s Case.

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protection as in article 23, it follows from those provisions that such protection must be equal, that is to say not discriminatory, for example on the basis of sex. ¶9.2 (b) 2 (ii) 3. It follows that also in this line of argument the Covenant must lead to the result that the protection of a family cannot vary with the sex of the one or the other spouse. Though it might be justified for Mauritius to restrict the access of aliens to their territory and to expel them therefrom for security reasons, the Committee is of the view that the legislation which only subjects foreign spouses of Mauritian women to those restrictions, but not foreign spouses of Mauritian men, is discriminatory with respect to Mauritian women and cannot be justified by security requirements. ¶9.2 (b) 2 (ii) 4. The Committee therefore finds that there is also a violation of articles 2 (1), 3 and 26 of the Covenant in conjunction with the right of the three married co-authors under article 23 (1).

[20.19] The decision in the Mauritian Women’s Case was influenced by the discriminatory impact of the law, as it applied different rules to foreign husbands and foreign wives.16 In Concluding Comments on Zimbabwe, the HRC indicated that non-discriminatory laws which denied automatic residential rights to all foreign spouses also breached article 23:17 ¶19. The Committee notes with concern that the decision of the Supreme Court in Rattigan and Others v Chief Immigration Officer and Others has been nullified by an amendment to the constitution, the effect of which is to deprive both women and men of the right to have their spouses registered as citizens, who as a consequence may not be allowed to reside in or enter the territory of Zimbabwe. The Committee considers that this amendment is incompatible with articles 17 and 23 of the Covenant. The Committee recommends that steps be taken to bring the law into compliance with the Covenant. . . .

[20.20] In Concluding Observations on Israel, the HRC stated:18 ¶26. The Committee regrets that the authorities appear to be placing obstacles in the way of family reunion in the case of marriages between an Israeli citizen and a non-citizen who is not Jewish (and therefore not entitled to enter under the Law of Return). These obstacles, which include long waiting periods for entry permits, a ‘probation’ period of over five years’ residence to establish that the marriage is genuine and a further waiting period for citizenship, are applied even more rigorously in the case of Arab citizens, particularly those who marry persons resident in the occupied territories. The Committee considers such obstacles to be incompatible with articles 17 and 23. It is recommended that the Government reconsider its policies with a view to facilitating family reunion of all citizens and permanent residents.

In more recent Concluding Observations on Israel, the HRC stated:19 ¶21. The Committee is concerned about Israel’s temporary suspension order of May 2002, enacted into law as the Nationality and Entry into Israel Law (Temporary Order) on 31 July 2003, which suspends for a renewable one-year period, the possibility of family reunification, subject to limited and subjective exceptions especially in the cases of

16 See also individual opinion of Mr Bouziri in Lovelace v Canada (24/77), and Concluding Observations on Israel (1998) UN doc CCPR/C/79/Add.93, para 27. 17 18 (1998) UN doc CCPR/C/79/Add.89. (1998) UN doc CCPR/C/79/Add.93. 19 (2003) UN doc CCPR/CO/78/ISR.

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marriages between an Israeli citizen and a person residing in the West Bank and in Gaza. The Committee notes with concern that the suspension order of May 2002 has already adversely affected thousands of families and marriages. The State party should revoke the Nationality and Entry into Israel Law (Temporary Order) of 31 July 2003, which raises serious issues under articles 17, 23 and 26 of the Covenant. The State party should reconsider its policy with a view to facilitating family reunification of all citizens and permanent residents. It should provide detailed statistics on this issue, covering the period since the examination of the initial report.

The HRC has also expressed concern to Israel over the difficulties caused to Palestinian family life due to the construction of its separation wall, and consequent restrictions on freedom of movement between the West Bank and Israel.20 [20.21] In Concluding Observations on Austria,21 the HRC stated: ¶19. The Committee is concerned that the Federal Asylum Act (2005) foresees family reunification only for nuclear family members, i.e. spouses, minor children and parents of minor children, of recognized refugees and beneficiaries of subsidiary protection, and that the exclusion of dependent adult children, minor orphan siblings and other persons with whom persons granted international protection enjoyed family life in their country of origin can result in hardship situations (arts. 13, 17 and 23 (1)). The State party should consider amending the Federal Asylum Act, with a view to applying a more liberal approach towards family reunification in cases of refugees and beneficiaries of subsidiary protection.

[20.22] In Concluding Observations on France, the HRC stated:22 ¶21. The Committee is concerned about the length of family reunification procedures for recognized refugees. It also notes that the procedure allowing the use of DNA testing as a way to establish filiation for the purpose of family reunification, introduced by article 13 of Act No. 2007/1631 of 20 November 2007, may pose problems regarding its compatibility with articles 17 and 23 of the Covenant, despite its optional nature and the procedural guarantees provided by the law (arts. 17 and 23). The State party should review its family reunification procedures for recognized refugees, with a view to ensuring that applications for family reunification are processed as speedily as possible. The State party should also adopt all appropriate measures to ensure that the implementation of DNA testing as a way to establish filiation does not create additional obstacles to family reunification, and that the use of such testing is always subject to the prior informed consent of the applicant.

[20.23]

EL DERNAWI v LIBYAN ARAB JAMAHIRIYA (1143/02)

The author in this case was a refugee who was granted asylum from Libya by Switzerland. Libya refused to grant passports to his family to enable them 20

Concluding Observations on Israel (2010) UN doc CCPR/C/ISR/CO/3, para 16. (2007) UN doc CCPR/C/AUT/CO/4. See also Concluding Observations on Norway (2011) CCPR/C/NOR/CO/6, para 15. 22 (2008) UN doc CCPR/C/FRA/CO/4. See also Concluding Observations on Denmark (2000) UN doc CCPR/CO/70/DNK, para 15 [16.61]. 21

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to join him. The HRC found that that circumstance breached articles 17 and 23(1): ¶6.3. As to the claims under articles 17, 23 and 24,23 the Committee notes that the state party’s action amounted to a definitive, and sole, barrier to the family being reunited in Switzerland. It further notes that the author, as a person granted refugee status under the 1951 Convention on the Status of Refugees, cannot reasonably be expected to return to his country of origin. In the absence of justification by the state party, therefore, the Committee concludes that the interference with family life was arbitrary in terms of article 17 with respect to the author, his wife and six children, and that the state party failed to discharge its obligation under article 23 to respect the family unit in respect of each member of the family. . . .

[20.24] A number of States have policies of deporting long-standing alien residents due to their criminal records. One such deportation order was challenged in the following case. STEWART v CANADA (538/93) The author was born in Scotland and emigrated to Canada at the age of seven with his mother. He had always considered Canada to be his home, where he lived with his sick mother and disabled brother. He also had two young children living with his former wife. He considered himself a Canadian citizen and it was not until immigration officials contacted him that he realized that he was only a permanent resident in legal terms. He was being deported pursuant to the Canadian Immigration Act which allowed for deportation where certain specified offences had been committed. The author argued that the deportation violated a number of articles including articles 17 and 23. ¶3.3. According to the author, the term ‘home’ should be interpreted broadly, encompassing the (entire) community of which an individual is a part. In this sense, his ‘home’ is said to be Canada. It is further submitted that the author’s privacy must include the fact of being able to live within his community without arbitrary or unlawful interference. To the extent that Canadian law does not protect aliens from such interference, the author claims a violation of article 17.

The State Party responded with the following comments: ¶9.2. Articles 17 and 23 of the Covenant cannot be interpreted as being incompatible with a State party’s right to deport an alien, provided that the conditions of article 13 of the Covenant are being observed. Under Canadian law everyone is protected against arbitrary or unlawful interference with privacy, family and home as required by article 17. The State party submits that when a decision to deport an alien is taken after a full and fair procedure in accordance with law and policy, which are not themselves inconsistent with the Covenant, and in which the demonstrably important and valid interests of the State are balanced with the Covenant rights of the individual, such a decision cannot be found to be arbitrary. In this context the State party submits that the conditions established by law on the continued residency of non-citizens in Canada are reasonable and objective and the application of the law by Canadian authorities is consistent with the provisions of the Covenant, read as a whole. ¶9.3. The State party points out that the proposed deportation of Mr Stewart is not the result of a summary decision by Canadian authorities, but rather of careful deliberation of 23

See also [21.37].

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all factors concerned, pursuant to full and fair procedures compatible with article 13 of the Covenant . . . ¶9.4. . . . The protection required by article 23, paragraph 1, however, is not absolute. In considering his removal, the competent Canadian courts gave appropriate weight to the impact of deportation on his family in balancing these against the legitimate State interests to protect society and to regulate immigration. In this context the State party submits that the specific facts particular to his case, including his age and lack of dependents, suggest that the nature and quality of his family relationships could be adequately maintained through correspondence, telephone calls and visits to Canada, which he would be at liberty to make pursuant to Canadian immigration laws.

The Committee did not find a violation of any of the provisions of the Covenant. The majority made the following comments in relation to articles 17 and 23: ¶12.10. The deportation of Mr Stewart will undoubtedly interfere with his family relations in Canada. The question is, however, whether the said interference can be considered either unlawful or arbitrary. Canada’s Immigration Law expressly provides that the permanent residency status of a non-national may be revoked and that that person may then be expelled from Canada if he or she is convicted of serious offences. In the appeal process the Immigration Appeal Division is empowered to revoke a deportation order ‘having regard to all the circumstances of the case’. In the deportation proceedings in the present case, Mr Stewart was given ample opportunity to present evidence of his family connections to the Immigration Appeal Division. In its reasoned decision the Immigration Appeal Division considered the evidence presented but it came to the conclusion that Mr Stewart’s family connections in Canada did not justify revoking the deportation order. The Committee is of the opinion that the interference with Mr Stewart’s family relations that will be the inevitable outcome of his deportation cannot be regarded as either unlawful or arbitrary when the deportation order was made under law in furtherance of a legitimate state interest and due consideration was given in the deportation proceedings to the deportee’s family connections. There is therefore no violation of articles 17 and 23 of the Covenant.

[20.25]

CANEPA v CANADA (558/93)

The facts in this case were very similar to those in Stewart. The author faced deportation to Italy for a series of offences after having lived in Canada with his parents and brother since the age of five. As in Stewart, the HRC found no violation of either article 17 or 23, and it made the following comment: ¶11.5. [The author, Canepa] has had an almost continuous record of convictions (except for a period in 1987–88), from age 17 to his removal from Canada at age 31. The author, who has neither spouse nor children in Canada, has extended family in Italy. He has not shown how his deportation to Italy would irreparably sever his ties with his remaining family in Canada. His family were able to provide little help or guidance to him in overcoming his criminal tendencies and his drug-addiction. He has not shown that the support and encouragement of his family is likely to be helpful to him in the future in this regard, or that his separation from his family is likely to lead to a deterioration in his situation. . . .

The HRC’s statements regarding Canepa’s Canadian-based family are unnecessary, judgmental, and insensitive. It is inappropriate to conclude that continued regular family contact would have been unhelpful to Canepa, in view of the

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insidious nature of his heroin addiction. Indeed, should family rights be altered according to the HRC’s judgment of the relevant family’s functionality?24 [20.26] The hard line taken by the HRC towards the family rights of long-term residents expelled due to their criminal record continued in Byahuranga v Denmark (1222/03). However, a softer attitude was perhaps evident in the next case. MADAFFERI v AUSTRALIA (1011/01) The facts are evident from the HRC’s finding that family rights would be violated if the father of the family was deported to Italy: ¶9.8. In the present case, the Committee considers that a decision by the State party to deport the father of a family with four minor children and to compel the family to choose whether they should accompany him or stay in the State party is to be considered ‘interference’ with the family, at least in circumstances where, as here, substantial changes to long-settled family life would follow in either case. The issue thus arises whether or not such interference would be arbitrary and thus contrary to article 17 of the Covenant. The Committee observes that in cases of imminent deportation the material point in time for assessing this issue must be that of its consideration of the case. It further observes that in cases where one part of a family must leave the territory of the State party while the other part would be entitled to remain, the relevant criteria for assessing whether or not the specific interference with family life can be objectively justified must be considered, on the one hand, in light of the significance of the State party’s reasons for the removal of the person concerned and, on the other, the degree of hardship the family and its members would encounter as a consequence of such removal. In the present case, the Committee notes that the State party justifies the removal of Mr. Madafferi by his illegal presence in Australia, his alleged dishonesty in his relations with the Department of Immigration and Multicultural Affairs, and his ‘bad character’ stemming from criminal acts committed in Italy twenty years ago. The Committee also notes that Mr. Madafferi’s outstanding sentences in Italy have been extinguished and that there is no outstanding warrant for his arrest. At the same time, it notes the considerable hardship that would be imposed on a family that has been in existence for 14 years. If Mrs. Madafferi and the children were to decide to emigrate to Italy in order to avoid separation of the family, they would not only have to live in a country they do not know and whose language the children (two of whom are already 13 and 11 years old) do not speak, but would also have to take care, in an environment alien to them, of a husband and father whose mental health has been seriously troubled, in part by acts that can be ascribed to the State party.25 In these very specific circumstances, the Committee considers that the reasons advanced by the State party for the decision of the Minister overruling the Administrative Appeals Tribunal, to remove Mr. Madafferi from Australia are not pressing enough to justify, in the present case, interference to this extent with the family and infringement of the right of the children to such measures of protection as are required by their status as minors. Thus, the Committee considers that the removal by the State party of Mr. Madafferi would, if implemented, constitute arbitrary interference with the family, contrary to article 17, paragraph 1, in conjunction with article 23, 24 ‘Dysfunctional’ can be distinguished from ‘ineffective’ family life in that no real family links exist in the latter situation [20.10]. Of course, family rights should be limited where dysfunctionality is severe, as in the case of child or spousal abuse. 25 See also [9.75].

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of the Covenant in respect of all of the authors, and additionally, a violation of article 24, paragraph 1, in relation to the four minor children due to a failure to provide them with the necessary measures of protection as minors.

[20.27] Perhaps Madafferi could have been explained by certain extraordinary factors, such as the main author’s mental illness, the youth of his children, and the fact that the relevant criminal record was old and incurred in another country (Italy). However, the softer HRC approach was confirmed in the following case, which had similar facts to Stewart, Canepa, and Byahuranga. DAUPHIN v CANADA (1792/08) Dauphin was a Haitian national who had resided in Canada since the age of two. He faced deportation to Haiti after serving a 33-month sentence for a violent robbery at the age of 22. He claimed that he had been unaware that he was not a Canadian citizen, and that the deportation would sever his family relationships, including that with his girlfriend. Canada argued that he had no wife or child in Canada, and was not close to his family. The HRC majority found a violation of his family rights would arise if he was deported to Haiti: ¶8.2. In this instance, the author has lived in the State party’s territory since the age of two and was educated there. His parents and three brothers and sisters live in Canada and have Canadian nationality. The author is to be deported after having been sentenced to 33 months’ imprisonment for robbery with violence. The Committee notes the author’s claim that his entire family is in Canada, that he lived with his family before his arrest and that he has no family in Haiti. The Committee also notes the State party’s arguments referring to a rather casual link between the author and his family, since he had lived mainly in youth centres and foster homes and received no help from his family when he turned to a life of crime and drug abuse. ¶8.3. . . . In this case, it is not disputed that the author has no family in Haiti and that all his family live in the territory of the State party. Given that this is a young man who has not yet started a family of his own, the Committee considers that his parents, brothers and sisters constitute his family under the Covenant. It finds that the State party’s decision to deport the author, who has spent all his life since his earliest years in the State party’s territory, was unaware that he was not a Canadian national and has no family ties whatsoever in Haiti, constitutes interference in the author’s family life. The Committee notes that it is not disputed that this interference had a legitimate purpose, namely the prevention of criminal offences. It must therefore determine whether this interference was arbitrary and a violation of articles 17 and 23, paragraph 1, of the Covenant. ¶8.4. The Committee notes that the author considered himself to be a Canadian citizen and it was only on his arrest that he discovered that he did not have Canadian nationality. He has lived all his conscious life in the territory of the State party and all his close relatives and his girlfriend live there, and he has no ties to his country of origin and no family there. The Committee also notes that the author has only a single previous conviction, incurred just after he turned 18. The Committee finds that the interference, with drastic effects for the author given his very close ties to Canada and the fact that he appears to have no link with Haiti other than his nationality, is disproportionate to the legitimate aims pursued by the State party. The author’s deportation therefore constitutes a violation by the State party of articles 17 and 23, paragraph 1, of the Covenant.

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[20.28] The HRC’s departure from Stewart seems entrenched after its 2011 decisions in Nystrom v Australia (1557/07) and Warsame v Canada (1959/10). In Nystrom, a Swedish man, who had lived in Australia since he was 25 days old, was deported at the age of 33 to Sweden after a string of criminal convictions. That deportation breached articles 17 and 23(1).26 In Warsame, a Somalian man faced deportation to Somalia after being convicted of a series of crimes. He had lived in Canada since the age of four, and he was 26 when he submitted his complaint to the HRC. The HRC found that his deportation on character grounds to Somalia would breach his family rights.27 [20.29]

WINATA v AUSTRALIA (930/00)

Hendrik Winata and So Lan Li were Indonesian nationals who entered Australia on, respectively, a visitor’s visa in 1985 and a student visa in 1987.28 Both overstayed their visas and remained illegally in Australia. They met and commenced a de facto relationship in Australia, and Lan Li gave birth to their son Barry in Australia on 2 June 1988. On 2 June 1998, Barry acquired Australian citizenship by virtue of his place of birth and his continuous de facto residence of ten years. On 15 October 1998, Winata and Lan Li applied for a ‘parent visa’. However, such visas are granted only to persons outside the country. The likelihood was that such a visa would be granted, if granted at all, only after a number of years due to quota restrictions on such visas. Without such visas, the parents faced deportation as illegal immigrants. The parents’ claim, on their own behalf and that of Barry, was as follows: ¶3.1. The authors allege that their removal to Indonesia would violate rights of all three alleged victims under articles 17, 23, paragraph 1, and 24, paragraph 1. . . . ¶3.4. The authors claim that if they are to be removed, the only way to avoid their separation from Barry is for him to leave with them and relocate to Indonesia. They claim however that Barry is fully integrated into Australian society, speaks neither Indonesian nor Chinese, and has no cultural ties to Indonesia since he has always lived in Australia. Barry is described by the psychologist’s report as ‘an Inner Western Sydney multicultural Chinese Australian boy, with all the best characteristics of that culture and subculture [who] would be completely at sea and at considerable risk if thrust into Indonesia’. Alternatively, the authors contend it would be unconscionable and very damaging to break up the family unit and set Barry adrift in Australia them [sic] if he was to be left there while they returned to Indonesia. Either way, say the authors, the removal would be arbitrary and unreasonable.

The HRC majority found in favour of the authors: ¶7.1. As to the claim of violation of article 17, the Committee notes the State party’s arguments that there is no ‘interference’, as the decision of whether Barry will accompany his parents to Indonesia or remain in Australia, occasioning in the latter case a physical separation, is purely an issue for the family and is not compelled by the State’s actions. The Committee notes that there may indeed be cases in which a State party’s refusal to allow 26

At para 7.11; see also [12.40]. At para 8.10; see also [9.103] and [12.41]. This background description of the case is taken from S Joseph, ‘Human Rights Committee: Recent Cases’ (2001) 2 Human Rights Law Review 305, 313. 27 28

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one member of a family to remain in its territory would involve interference in that person’s family life. However, the mere fact that one member of a family is entitled to remain in the territory of a State party does not necessarily mean that requiring other members of the family to leave involves such interference. ¶7.2. In the present case, the Committee considers that a decision of the State party to deport two parents and to compel the family to choose whether a 13-year old child, who has attained citizenship of the State party after living there 10 years, either remains alone in the State party or accompanies his parents is to be considered ‘interference’ with the family, at least in circumstances where, as here, substantial changes to long-settled family life would follow in either case. The issue thus arises whether or not such interference would be arbitrary and contrary to article 17 of the Covenant. ¶7.3. It is certainly unobjectionable under the Covenant that a State party may require, under its laws, the departure of persons who remain in its territory beyond limited duration permits. Nor is the fact that a child is born, or that by operation of law such a child receives citizenship either at birth or at a later time, sufficient of itself to make a proposed deportation of one or both parents arbitrary. Accordingly, there is significant scope for States parties to enforce their immigration policy and to require departure of unlawfully present persons. That discretion is, however, not unlimited and may come to be exercised arbitrarily in certain circumstances. In the present case, both authors have been in Australia for over fourteen years. The authors’ son has grown in Australia from his birth 13 years ago, attending Australian schools as an ordinary child would and developing the social relationships inherent in that. In view of this duration of time, it is incumbent on the State party to demonstrate additional factors justifying the removal of both parents that go beyond a simple enforcement of its immigration law in order to avoid a characterization of arbitrariness. In the particular circumstances, therefore, the Committee considers that the removal by the State party of the authors would constitute, if implemented, arbitrary interference with the family, contrary to article 17, paragraph 1, in conjunction with article 23, of the Covenant in respect of all of the alleged victims, and, additionally, a violation of article 24, paragraph 1, in relation to Barry Winata due to a failure to provide him with the necessary measures of protection as a minor. ¶8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the removal by the State party of the authors would, if implemented, entail a violation of articles 17, 23, paragraph 1, and 24, paragraph 1, of the Covenant. . . . ¶9. In accordance with article 2, paragraph 3 (a), of the Covenant, the State Party is under an obligation to provide the authors with an effective remedy, including refraining from removing the authors from Australia before they have had an opportunity to have their application for parent visas examined with due consideration given to the protection required by Barry Winata’s status as a minor. The State party is under an obligation to ensure that violations of the Covenant in similar situations do not occur in the future.

[20.30] Messrs Bhagwati, Khalil, Kretzmer, and Yalden dissented. The minority was much more willing than the majority to defer to Australia’s sovereign power over its own immigration policy. In the minority view, Australia’s rigid enforcement of its policy was permitted, despite undoubted adverse affects on the family lives of the authors, and in particular on Barry’s family life. The minority did not

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question whether the immigration policy itself was potentially arbitrary.29 On the other hand, while the majority conceded ‘significant scope for States parties to enforce their immigration policy’, it found ‘[t]hat discretion [was] not unlimited and may come to be exercised arbitrarily in certain circumstances’. The majority was willing to look behind the justification of ‘immigration policy’ to decide whether the policy was exercised, in the particular circumstances, in a reasonable, proportionate, non-arbitrary manner. The majority decision indicates that a greater degree of consideration of individual circumstances is required of Australian authorities in the implementation of their immigration policies. A blanket requirement that all parents’ visas be processed outside Australia, bearing in mind the long waiting period, was not appropriate in the particular case before the HRC. [20.31] The crucial factor for the majority in Winata was the 13-year length of Barry’s (life-long and now lawful) residence in Australia, and the detrimental effects upon Barry of having either to leave the only State he had ties with or to stay in that State without his parents. This is not, however, made clear in the decision, which also cites the length of the parents’ stay per se as a relevant factor in characterizing the deportation as arbitrary. The minority’s criticisms of the majority seemed to focus on this latter aspect of the majority decision. It is, however, unlikely that the majority believes that the ICCPR grants international ‘squatters’ rights’ to illegal immigrants who manage to evade detection for a large number of years in the absence of further extenuating circumstances, such as the existence of a child who will be adversely affected through no fault of his/her own by the denial of such rights. [20.32] The case elicits the proposition that the close family ties of a minor citizen child to a State should, in the absence of compelling contrary reasons, be maintained in a way that does not cause significant physical and psychological dislocation to that child. It may be that few cases will fall into the same category as Winata. Had Barry been younger, the psychological dislocation would have been less severe.30 Had Barry been older, the option of his remaining in Australia without his parents would have been more viable. In both instances, the facts would be less likely to give rise to a breach of the ICCPR. The crucial nature of Barry’s circumstances to the decision in the Winata case was confirmed in the following cases. [20.33]

SAHID v NEW ZEALAND (893/99)

The author complained of the State Party’s refusal to grant him a residence visa. He had initially arrived on a visitor’s visa to visit his adult daughter, who was a New Zealand resident. He subsequently stayed in New Zealand for 11 years, during which time he exhausted legal remedies in attempting to gain a resident’s visa. He claimed that his subsequent deportation breached his rights under article 23(1). Similar claims on behalf of his daughter and grandson were ruled inadmissible, 29

Joseph, ‘Human Rights Committee: Recent Cases’, 315–18. In any case, it is uncertain what the decision would have been had Barry been under 10 years of age, and therefore not an Australian citizen at all. 30

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due to lack of authorization for the author to represent them [3.33]. The HRC ultimately found no violation of article 23(1) in the following terms: ¶8.2. As to the admissible claims under article 23, paragraph 1, the Committee notes its earlier decision in Winata v Australia, that, in extraordinary circumstances, a State party must demonstrate factors justifying the removal of persons within its jurisdiction that go beyond a simple enforcement of its immigration law in order to avoid a characterization of arbitrariness. In Winata, the extraordinary circumstance was the State party’s intention to remove the parents of a minor, born in the State party, who had become a naturalized citizen after the required 10 years’ residence in that country. In the present case, the author’s removal has left his grandson with his mother and her husband in New Zealand. As a result, in the absence of exceptional factors, such as those noted in Winata, the Committee finds that the State party’s removal of the author was not contrary to his right under article 23, paragraph 1, of the Covenant.

[20.34]

RAJAN and RAJAN v NEW ZEALAND (820/98)

The two authors, Mr and Mrs Rajan, obtained New Zealand residence permits on 2 February 1992 by virtue of a fraud perpetrated by Mr Rajan.31 The New Zealand authorities discovered the fraud later in 1992, and thereafter began to take steps to revoke the residency permits and deport the authors to Fiji. In 1994, Mrs Rajan and the Rajans’ first child Vicky received New Zealand citizenship, their entitlement being derived from their residency rights. However, they failed to disclose the difficulties regarding their residency rights, so, in 1995, the New Zealand Minister for Internal Affairs issued a notice to revoke the citizenship of Mrs Rajan and Vicky, on the basis that it was obtained by fraud. A second child, Ashnita, was born in New Zealand in 1996 and therefore was a New Zealand citizen. The authors claimed that the proposed revocation of their residency and citizenship rights, and subsequent deportation, would breach their rights of protection of the family, as well as the rights of their children. The HRC ultimately ruled the complaint to be inadmissible: ¶7.3. With respect to the authors’ claim that the removal of Mr and Mrs Rajan would violate their rights under article 23, paragraph 1, and their children’s right to protection under article 24, paragraph 1, the Committee notes that other than a statement that because of the children’s youth they would also have to leave New Zealand if their parents were removed, the authors have provided insufficient argument on how their rights in this regard would be violated. It is clear from the decisions of the domestic authorities, that the protection of the family and, more particularly, the protection of the children were considered at each stage in the process including the High Court, the Court of Appeal, the Deportation Removal Tribunal and most recently by the Minister considering the author’s application . . . The Committee observes that from an early point, and several years prior to the birth of Ashnita, the State party’s authorities moved to remove the authors once fraudulent action became apparent, and that the subsequent time in New Zealand has, in large measure, been spent either in pursuing available remedies or in hiding. In addition, any contention that 31 The entitlement to New Zealand residency arose because the Rajans had Australian residency status. However, the Australian residency had been originally granted to Mr Rajan on the basis of a fraudulent claim of a de facto relationship with an Australian woman. Mrs Rajan gained Australian residency upon marrying Mr Rajan.

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Mrs Rajan, in the event that she was uninvolved in the fraud of Mr Rajan, may have had a separate reliance interest arising from the passage of time is diminished by the State party moving with reasonable dispatch to enforce its immigration laws against criminal conduct. Consequently, the Committee is of the view that the authors have failed to substantiate their claim that they or their children are victims of violations of articles 17, 23 paragraph 1 and 24, paragraph 1, of the Covenant. These claims are, therefore, unsubstantiated and inadmissible under article 2 of the Optional Protocol.

Therefore, it is clear that parents do not have a right to be free from deportation from a State simply because their minor children are citizens of that State.32 [20.35] In contrast, note that a violation of family rights was found in El Hichou v Denmark (1554/07), where the State refused to allow a 17-year-old child to reunite with his father, a lawful resident [21.36]. Perhaps the case can be distinguished on the basis that the State was barring the child in El Hichou, whereas the State was barring the parent in Rajan and the grandparent in Sahid. [20.36]

GONZALEZ v GUYANA (1246/04)

Ms Gonzalez was a Guyanese citizen. Her husband was a Cuban exile. His application for Guyanese citizenship was delayed [14.94], and he was unable to live lawfully in Guyana while he remained a non-citizen. The HRC found a breach of the couple’s family rights: ¶14.3. As to the author’s claims raising issues under article 17, paragraph 1 of the Covenant the Committee notes that Mr. Gonzalez is not allowed to reside legally in Guyana and that, as a result, he had to leave the country and cannot live with his wife. It is also evident that they cannot live in Cuba. The State party has not indicated where else they might live as a couple. The Committee considers that this fact constitutes an interference with both spouses’ family. The question is whether such interference is arbitrary or unlawful. The Committee recalls its jurisprudence that interference authorized by States can only take place on the basis of law. As for the concept of arbitrariness, it is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. ¶14.4. In the present case, the Committee notes the State party’s submission that the Minister refused to register Mr. Gonzalez as a Guyana citizen or to grant him a work permit arguing that [such a permit] could adversely affect the good relations between the Governments of Guyana and Cuba. . . . [T]he Committee does conclude that the manner in which the State party’s authorities have dealt with Mr. Gonzalez’s request for citizenship is unreasonable and amounts to arbitrary interference with the author and her husband’s family. It thus constitutes a breach of their right under article 17, paragraph 1 of the Covenant.

The couple had no country in which they could live as a couple if Guyana failed to grant residence, if not necessarily citizenship, to the husband. Furthermore, the weak reason given to deny him citizenship (maintenance of good relations with Cuba, which adopts a very restrictive view on the rights of its citizens to leave and live in 32

See also Fernandes et al v Netherlands (1513/06).

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another State), as well as the delays in relevant judicial proceedings, rendered the actions of Guyana arbitrary in breach of article 17(1) and probably article 23(1) too. It is not clear, and perhaps unlikely, that the HRC was adopting a position whereby a State Party must grant residency rights to a citizen’s foreign spouse in circumstances where there is no other country in which the couple can safely live.33 [20.37] In Nakrash and Qifen v Sweden (1540/07), the authors met in Sweden and had a child who was born there. He was from Syria and she was from China. They unsuccessfully sought asylum and were earmarked for deportation. They claimed that they would not be able to reunited in Syria, China, or any other State. The HRC ultimately found the claim to be inadmissible, as it seemed that they could in fact reunite as a family in Syria. It is therefore uncertain as to whether the forcible splitting of a family by deportation of different family members to different States, in circumstances where those latter States preclude reunion, is a breach of family rights. FORCED REMOVAL OF CHILDREN FROM A PARENT

[20.38]

BUCKLE v NEW ZEALAND (858/99)

This case concerned the forced removal of the author’s children from her custody. Such a circumstance of course also raises issues under articles 17 and 24, which guarantees the rights of children.34 The author’s complaint was as follows: ¶2.1. The author’s six children (aged at the time between 8 and 1 year of age) were removed from her care in 1994 allegedly because of her inability to look after them adequately. . . . ¶3.1. The author claims that the removal of her guardianship rights over her six children is in violation of articles 17 and 23 of the Covenant, as this allegedly constitutes arbitrary interference in the exercise of her rights as a mother. The author considers that regardless of the conditions under which the children lived with her, it is her right as a mother to have her children with her and that there is no possible cause to remove the children from her care. . . . ¶3.3. The author further claims a violation of article 24 of the Covenant in respect of her six children since their removal from her side deprives them of their right to be in the care of their natural mother.

The State Party justified its removal of the author’s children from her care: ¶5.3. With respect to the alleged violation of article 17 the State party concedes that the removal of children from parental custody could constitute interference; however it submits that in the present case the actions were neither unlawful nor arbitrary, and that the purpose of the intervention was legitimate within the meaning of the Covenant in particular having regard to article 24. In this respect, the State party submits in that in the author’s case the removal of the children was undertaken strictly in accordance with law. First, efforts were made to assist the family that did not involve Court processes. Social workers held informal meetings with the family to address concerns for the children in line with the 33 34

On this latter issue, see also the separate concurring opinion of Mrs Wedgwood. See also [20.58]ff, on custody disputes between parents.

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philosophy of minimum intervention and with the goal of empowering the family. It was agreed to strengthen the broader family support network, expand on health care and social work contacts with the children and provide for more regular feedback. When these steps proved insufficient in the light of the author’s increasing inability to care for her children, a Family Group Conference was convened. The FGC, which included eight family members, agreed to recommend to the Court that a declaration be made and the majority of the children placed with family members. Unfortunately the author’s capacity to care for her children did not improve, and the decision that the children be placed with caregivers has been confirmed by regular statutory reviews and the appeal brought by the author against Court decisions. ¶5.4. The State party argues that the intervention was not arbitrary but rather that it was carried out with due consideration to whether the specific act of enforcement ‘had a purpose that seems legitimate on the basis of the Covenant in its entirety, and whether it was predictable in the sense of the rule of law and, in particular, whether it was reasonable (proportional) in relation to the purpose to be achieved’.

The HRC found in favour of the State Party: ¶9.1. Concerning the author’s claim under article 17 of the Covenant, the Committee notes the information provided by the State party with respect to the extensive procedures followed in the author’s case. The Committee also notes that the situation is under regular review and that the author has been given the opportunity to retain access to her children. In the circumstances, the Committee finds that the interference with the author’s family has not been unlawful or arbitrary and is thus not in violation of article 17 of the Covenant. ¶9.2. The author has also claimed a violation of article 23 of the Covenant. The Committee recognizes the weighty nature of the decision to separate mother and children, but notes that the information before it shows that the State party’s authorities and the Courts considered carefully all the material presented to them and acted with the best interests of the children in mind and that nothing indicates that they violated their duty under article 23 to protect the family. ¶9.3. With respect to the alleged violation of article 24 of the Covenant, the Committee is of the opinion that the author’s arguments and the information before it do not raise issues that would be separate from the above findings.

[20.39]

NT v CANADA (1052/02)

The author was the sole carer of her child, JT. She was convicted for his assault, though she only admitted that she had smacked him once. Her son was taken into protective custody at the Catholic Children’s Aid Society of Toronto (CCAS), with the author having supervised visitation rights. A long battle ensued, with the author taking various legal and even unlawful avenues to regain custody, as described in the decision below. The author claimed violations of her family rights, as well as those of her son. The HRC agreed: ¶8.2. As to the alleged violation of article 17, the Committee recalls that the term ‘family’ must be understood broadly, and that it refers not solely to the family home during marriage or cohabitation, but also to the relations in general between parents and a child. Where there are biological ties, there is a strong presumption that a ‘family’ exists and

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only in exceptional circumstances will such relationship not be protected by article 17. The Committee notes that the author and her daughter lived together until the child was four years old and she was placed in institutional custody and that the author was in contact with the child until August 1999. In these circumstances, the Committee cannot but find that at the time when the authorities intervened, the author and her daughter formed a family within the meaning of article 17 of the Covenant. ¶8.3. In respect of the author’s claim that she unlawfully lost custody of and access to her child and that her family was destroyed, the Committee observes that the removal of a child from the care of his or her parent(s) constitutes interference in the parents’ and the child’s family. The issue thus arises whether or not such interference was arbitrary or unlawful and contrary to article 17. The Committee considers that in cases of child custody and access, the relevant criteria for assessing whether or not the specific interference with family life can be objectively justified must be considered, on the one hand, in light of the effective right of a parent and a child to maintain personal relations and regular contact with each other, and on the other hand, in the light of the best interests of the child. ¶8.4. The Committee notes that the authorities’ initial removal of her daughter from the author’s care, on 2 August 1997, confirmed by a judicial order of 7 August placing her under the care of the CCAS, was based on their belief, later confirmed by the author’s conviction, that she had assaulted her child. The Committee notes that although the order was temporary (three months), it only granted the author access to her daughter under extremely harsh circumstances. It considers that the initial three-month placement of the author’s daughter in the care of the CCAS was disproportionate. ¶8.5. In relation to the author’s claims regarding the period commencing after the expiry of the three-month period covered by the interim order of 7 August 1997 up to the trial in May 2000, the Committee notes that the CCAS kept the child in its care. According to the order of 7 August 1997, the author was to have access to her daughter, although under very strict conditions. Following the author’s ‘abduction’ of her daughter on1 December 1997 and her conviction in April 1998, the author was denied access. She did not regain access until June 1999, also under very harsh conditions, as a result of an order of 17 May 1999 reinstating access. For instance, the author and her daughter were allowed to meet only in the CCAS’ premises, every third week for 90 minutes. The visits were fully supervised by CCAS employees. The author was not allowed to telephone her daughter. The CCAS again terminated access on its own initiative, while the order for access of 17 May 1999 was still in force. In the conditions for access appended to that order, it was stated that the author should have supervised access to the child in the sole and absolute discretion of the CCAS. The access issue was not assessed by a judge until 21 December 1999 when the judge decided not to reinstate the author’s access to her daughter. Since then, the author’s access has not been reinstated. ¶8.6. The Committee observes that the child repeatedly expressed the wish to go home, that she cried at the end of visits and that her psychologist recommended that access be reinstated. It considers that the conditions of access, which also excluded telephone contact, were very severe vis-à-vis a four-year old child and her mother. The fact that the author and the foster mother had an argument on the phone is not sufficient to justify the definitive termination of that contact between the author and her daughter. The Committee finds that the CCAS’ exercise of its power unilaterally to terminate access in December 1997 and August 1999, without a judge having reassessed the situation or the author having been given the opportunity to present a defence constituted arbitrary interference with the author and her daughter’s family, in violation of article 17 of the Covenant.

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¶8.7. With respect to the alleged violation of article 23, the Committee recalls its jurisprudence that the national courts are generally competent to evaluate the circumstances of individual cases. However, the law should establish certain criteria so as to enable the courts to apply the full provisions of article 23 of the Covenant. ‘It seems essential, except in exceptional circumstances, that these criteria should include the maintenance of personal relations and direct and regular contact between the child and parents.’ In the absence of such special circumstances, the Committee recalls that it cannot be deemed to be in the best interest of a child to eliminate altogether a parent’s access to him or her. ¶8.8. In the present case, the judge, during the child protection trial of 2000, considered that ‘there were no special circumstances demonstrated which would justify the continuation of access in these circumstances’, instead of examining the issue whether there were exceptional circumstances justifying terminating access, thereby reversing the perspective under which such issues should be considered. Given the need to ensure family bonds, it is essential that any proceedings which have an impact on the family unit deal with the question of whether the family bonds should be broken, keeping in mind the best interests of the child and of the parents. The Committee does not consider that the slapping incident, the author’s lack of cooperation with the CCAS and the contested fact of her mental disability constituted exceptional circumstances which would justify total severance of contact between the author and her child. It finds that the process by which the State party’s legal system reached a conclusion to completely deny the author access to her daughter, without considering a less intrusive and less restrictive option, amounted to a failure to protect the family unit, in violation of article 23 of the Covenant. In addition, these facts result in a violation of article 24 with respect to the author’s daughter, who was entitled to additional protection as a minor.

[20.40]

EB v NEW ZEALAND (1368/05)

The author was accused of charges of sexual assault of his daughters. The police decided not to proceed with the charges, but he was denied access to them after the charges were dismissed. The State’s Family Court decided that he posed an unacceptable risk to their welfare. A separate allegation of sexual assault was then made by his son, and those proceedings remained pending at the time of the HRC’s decision.35 With regard to the author’s allegations of a breach of family rights, the HRC found against him: ¶9.5. As to the author’s own claims under articles 17 and 23 of the Covenant, the Committee notes that the Family Court found that it could not be shown that the author had abused his children. Nonetheless, the judge decided, on the basis of all the evidence available to and reviewed by him . . . that to reinstate the author’s access to his children would amount to an ‘unacceptable risk to the welfare of the children’. The Committee notes that the trial judge in the Family Court proceeded to a full and balanced evaluation of the situation, on the basis of testimony of the parties and expert advice, and that, while acknowledging the far reaching nature of the decision to deny the author’s application for access, the trial judge decided that it was in the children’s best interest to do so. In the particular circumstances of the case, the Committee cannot conclude that the trial judge’s decision violated the author’s rights under articles 17, paragraph 1, and article 23, paragraph 1, of the Covenant. 35 Indeed, the HRC found that the prolonged proceedings in respect of all of the children breached art 14 [14.93].

Protection of the Family

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Article 23(2): Right to Marry [20.41]

GENERAL COMMENT 19

¶4. Article 23, paragraph 2, of the Covenant reaffirms the right of men and women of marriageable age to marry and to found a family. . . . In this connection, the Committee wishes to note that such legal provisions must be compatible with the full exercise of the other rights guaranteed by the Covenant; thus, for instance, the right to freedom of thought, conscience and religion implies that the legislation of each State should provide for the possibility of both religious and civil marriages. In the Committee’s view, however, for a State to require that a marriage, which is celebrated in accordance with religious rites, be conducted, affirmed or registered also under civil law is not incompatible with the Covenant. States are also requested to include information on this subject in their reports.

[20.42]

JOSLIN et al v NEW ZEALAND (902/99)

In this case, the authors (four women) claimed that New Zealand’s marriage law, which only permitted marriage between persons of the opposite sex, violated a number of provisions of the Covenant: ¶3.8. . . . [T]he authors claim a violation of article 23, paragraph 2, in conjunction with article 2, paragraph 1. They contend that the right of men and women to marry must be interpreted in the light of article 2, paragraph 1, which forbids distinctions of any kind. As the Marriage Act [of New Zealand] distinguishes on the prohibited ground of sex, which includes within its ambit sexual orientation, the authors’ rights in these respects have been violated. . . . Moreover, examining the text of the Covenant, the phrase ‘men and women’ in article 23, paragraph 2, does not mean that only men may marry women, but rather that men as a group and women as a group may marry.

The HRC found in favour of the State Party: ¶8.2. The authors’ essential claim is that the Covenant obligates States parties to confer upon homosexual couples the capacity to marry and that by denying the authors this capacity the State party violates their rights under articles 16, 17, 23, paragraphs 1 and 2, and 26 of the Covenant. The Committee notes that article 23, paragraph 2, of the Covenant expressly addresses the issue of the right to marry. Given the existence of a specific provision in the Covenant on the right to marriage, any claim that this right has been violated must be considered in the light of this provision. Article 23, paragraph 2, of the Covenant is the only substantive provision in the Covenant which defines a right by using the term ‘men and women’, rather than ‘every human being’, ‘everyone’ and ‘all persons’. Use of the term ‘men and women’, rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other. ¶8.3. In light of the scope of the right to marry under article 23, paragraph 2, of the Covenant, the Committee cannot find that by mere refusal to provide for marriage between homosexual couples, the State party has violated the rights of the authors under articles 16, 17, 23, paragraphs 1 and 2, or 26 of the Covenant.

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The ICCPR

The HRC thus accepted the following argument from the State Party: ¶4.5. The State party emphasizes that the specific terms of article 23, paragraph 2, in clearly referring to couples of different sex, must influence the interpretation of the other Covenant rights invoked. Following the interpretative maxim generalia specialibus non derogant, to the effect that general provisions should not detract from the meaning of specific provisions, the specific meaning of article 23, paragraph 2, excludes a contrary interpretation being derived from other more general provisions of the Covenant.

It may be noted that the HRC has not consistently adopted the generalia specialibus non derogant principle.36 [20.43] As of late 2012, Joslin is the only same-sex marriage case to have been decided by the HRC. As this issue has gathered momentum around the world in the decade since that decision, it seems likely that the issue will return to the HRC soon.37 [20.44] In Concluding Observations on Ireland, the HRC has confirmed that transgendered persons have a right under the ICCPR to alter their birth certificate to recognize their change of gender [16.57]. Therefore, it seems that a person’s post operative gender must be recognized for the purposes of marriage under article 23. [20.45] Article 23(2) is expressed as an absolute right. However, it is likely that certain common restrictions are permissible, such as restrictions on incestuous marriages or on persons who are already married.38 [20.46] As bigamy is prohibited in many States Parties, prohibitions on the right to divorce would deprive one of a right to remarry. Nowak therefore argues that a ‘right to divorce’ can be construed from the article 23(2) ‘right to marry’.39

Article 23(2): Right to Found a Family [20.47]

GENERAL COMMENT 19

¶5. The right to found a family implies, in principle, the possibility to procreate and live together. When States parties adopt family planning policies, they should be compatible with the provisions of the Covenant and should, in particular, not be discriminatory or compulsory. Similarly, the possibility to live together implies the adoption of appropriate measures, both at the internal level and as the case may be, in cooperation with other States, to ensure the unity or reunification of families, particularly when their members are separated for political, economic or similar reasons.

36 See, in particular, the HRC’s case law on the right of conscientious objection to military service at [17.41]ff. 37 The European Court of Human Rights decided that there was no obligation upon States Parties to the ECHR to allow same sex marriage in Schalk and Kopf v Austria (No 30141/04, Judgment of 24 June 2010 [Section I]). 38 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 529–30. 39 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 530–1.

Protection of the Family

691

Hence, coercive methods of population control are incompatible with article 23(2).40 [20.48] The article 23(2) ‘right to found a family’ is guaranteed to those who have a right to marry under the same sub-paragraph. The right to found a family is not, however, contingent upon marriage, but upon the ‘right’ to marry.41 Joslin v New Zealand (902/99) [20.42] therefore indicates that gay and lesbian couples are excluded from the right to found a family.42 [20.49] As with the right to marry, no apparent limit is expressed to the right of adult men and women to found a family. Again, however, it is doubtful whether the right is absolute. Certain common restrictions are likely to be permissible, such as restrictions on the right to adopt or on access to artificial procreation methods.43 [20.50] Article 23(2) also includes a right of family unity or reunification. Such a right is also subsumed within article 23(1).44

Article 23(3): Requirement of Consent to Marriage [20.51]

GENERAL COMMENT 19

¶4. . . . [Article 23(3)] provides that no marriage shall be entered into without the free and full consent of the intending spouses. States parties’ reports should indicate whether there are restrictions or impediments to the exercise of the right to marry based on special factors such as degree of kinship or mental incapacity. The Covenant does not establish a specific marriageable age either for men or for women, but that age should be such as to enable each of the intending spouses to give his or her free and full personal consent in a form and under conditions prescribed by law.45

[20.52]

GENERAL COMMENT 28

¶23. States are required to treat men and women equally in regard to marriage in accordance with article 23, which has been elaborated further by General Comment 19 (1990). Men and women have the right to enter into marriage only with their free and full consent, and States have an obligation to protect the enjoyment of this right on an equal basis. Many factors may prevent women from being able to make the decision to marry freely. One factor relates to the minimum age for marriage. That age should be set by the State on the basis of equal criteria for men and women. These criteria should ensure women’s capacity to make an informed and uncoerced decision. A second factor in some States may be that either by statutory or customary law a guardian, who is generally male, consents to the marriage instead of the woman herself, thereby preventing women from exercising a free choice. See also Szijjarto v Hungary (CEDAW 4/04) on involuntary sterilization. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 532–3. 42 See also S Joseph, ‘Human Rights Committee: Recent Cases’ (2003) 3 Human Rights Law Review 91 at 101. 43 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 533. 44 See Aumeeruddy-Cziffra et al v Mauritius (35/78) [20.18]. 45 See [21.22]. 40 41

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The ICCPR

¶24. A different factor that may affect women’s right to marry only when they have given free and full consent is the existence of social attitudes which tend to marginalize women victims of rape and put pressure on them to agree to marriage. A woman’s free and full consent to marriage may also be undermined by laws which allow the rapist to have his criminal responsibility extinguished or mitigated if he marries the victim. States parties should indicate whether marrying the victim extinguishes or mitigates criminal responsibility and in the case in which the victim is a minor whether the rape reduces the marriageable age of the victim, particularly in societies where rape victims have to endure marginalization from society. A different aspect of the right to marry may be affected when States impose restrictions on remarriage by women as compared to men. Also the right to choose one’s spouse may be restricted by laws or practices that prevent the marriage of a woman of a particular religion with a man who professes no religion or a different religion. States should provide information on these laws and practices and on the measures taken to abolish the laws and eradicate the practices which undermine the right of women to marry only when they have given free and full consent. It should also be noted that equality of treatment with regard to the right to marry implies that polygamy is incompatible with this principle. Polygamy violates the dignity of women. It is an inadmissible discrimination against women. Consequently, it should be definitely abolished wherever it continues to exist.46

Article 23(4): Right of Equality in Marriage [20.53]

GENERAL COMMENT 19

¶6. Article 23, paragraph 4, of the Covenant provides that States parties shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. With regard to equality as to marriage, the Committee wishes to note in particular that no sex-based discrimination should occur in respect of the acquisition or loss of nationality by reason of marriage. Likewise, the right of each spouse to retain the use of his or her original family name or to participate on an equal basis in the choice of a new family name should be safeguarded. During marriage, the spouses should have equal rights and responsibilities in the family. This equality extends to all matters arising from their relationship, such as choice of residence, running of the household, education of the children and administration of assets. Such equality continues to be applicable to arrangements regarding legal separation or dissolution of the marriage. Thus, any discriminatory treatment in regard to the grounds and procedures for separation or divorce, child custody, maintenance or alimony, visiting rights or the loss or recovery of parental authority must be prohibited, bearing in mind the paramount interest of the children in this connection. States parties should, in particular, include information in their reports concerning the provision made for the necessary protection of any children at the dissolution of a marriage or on the separation of the spouses.

[20.54]

GENERAL COMMENT 28

¶25. To fulfil their obligations under article 23, paragraph 4, States must ensure that the matrimonial regime contains equal rights and obligations for both spouses, with regard to the custody and care of children, the children’s religious and moral education, the capacity 46 See eg Concluding Observations on Madagascar (2007) UN doc CCPR/C/MDG/CO/3, para 12; Chad (2009) UN doc CCPR/C/TCD/CO/1, para 16; Cameroon (2010) UN doc CCPR/C/CMR/CO/4, para 9; Ethiopia (2011) UN doc CCPR/C/ETH/CO/1, para 9.

Protection of the Family

693

to transmit to children the parent’s nationality, and the ownership or administration of property, whether common property or property in the sole ownership of either spouse. States should review their legislation to ensure that married women have equal rights in regard to the ownership and administration of such property, where necessary. Also, States should ensure that no sex-based discrimination occurs in respect of the acquisition or loss of nationality by reason of marriage, of residence rights and of the right of each spouse to retain the use of his or her original family name or to participate on an equal basis in the choice of a new family name. Equality during marriage implies that husband and wife should participate equally in responsibility and authority within the family. ¶26. States must also ensure equality in regard to the dissolution of marriage, which excludes the possibility of repudiation. The grounds for divorce and annulment should be the same for men and women, as well as decisions with regard to property distribution, alimony and the custody of children. The need to maintain contact between children and the non-custodian parent, should be based on equal considerations.47 Women should also have equal inheritance rights to those of men when the dissolution of marriage is caused by the death of one of the spouses.

[20.55] Article 23(4) is unique in the ICCPR in that its text seems to incorporate a progressive obligation. States are required to ‘take appropriate steps’ to achieve equality within marriages. The prevailing societal norms in many States undoubtedly impose a hierarchy, husband over wife, within marriage. The text of article 23(4) recognizes that it will take time for States to dismantle these structures within society. However, the same problem arises with regard to other Covenant rights, such as the general right of non-discrimination in article 26, which are nevertheless expressed as immediate obligations. Indeed, it may be that the article 26 guarantee subsumes the article 23(4) guarantee. In any case, the HRC, in General Comment 19, does not acknowledge the apparent progressive nature of article 23(4).48 [20.56] The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) also guarantees equality within marriage in article 16. It has decided a number of cases on this provision, including GD and SF v France (CEDAW 12/07) and Dayras v France (CEDAW 13/07). [20.57] In Concluding Comments on Peru, the HRC expressed concerns over divorce laws which might contravene article 23(4):49 ¶16. The Committee notes with concern that when cases that might lead to a divorce are heard (physical or mental ill-treatment, serious injury and dishonourable conduct), the law instructs judges to take into account the education, habits and conduct of both spouses, a requirement that might easily lead to discrimination against women from the lower socio-economic strata.

47

See, on equal access to children, [20.58]ff. However, see below [20.61]. 49 (1996) UN doc CCPR/C/79/Add.72. See also Concluding Comments on Japan (1998) UN doc CCPR/C/79/Add.102, para 16, where the HRC criticized Japanese laws forbidding women to marry within six months of a dissolution or annulment of a previous marriage. 48

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The ICCPR

CHILD ACCESS AND CUSTODY UPON DISSOLUTION OF MARRIAGE

[20.58]

HENDRIKS v THE NETHERLANDS (201/85)

The author, after a divorce from his wife, was denied access to his young son by reason of the opposition of the former wife. After 12 years of protracted litigation, Dutch courts failed to issue orders compelling his ex-wife to allow him access to his son on the ground that it would subject his son to unnecessary tension. The author brought a complaint to the HRC, alleging that the State Party had violated his rights to protection of his family relationship with his child. The HRC decided against the author in the following terms: ¶10.4. The courts of the States parties are generally competent to evaluate the circumstances of individual cases. However, the Committee deems it necessary that the law should establish certain criteria so as to enable the courts to apply to the full the provisions of article 23 of the Covenant. It seems essential, barring exceptional circumstances, that these criteria should include the maintenance of personal relations and direct and regular contact between the child and both parents. The unilateral opposition of one of the parents, cannot, in the opinion of the Committee, be considered an exceptional circumstance. ¶10.5. In the case under consideration, the Committee notes that the Netherlands courts, as the Supreme Court had previously done, recognised the child’s right to permanent contact with each of his parents as well as the right of access of the non-custodial parent, but considered that these rights could not be exercised in the current case because of the child’s interests. This was the court’s appreciation in the light of all the circumstances, even though there was no finding of inappropriate behaviour on the part of the author. ¶11. As a result, the Committee cannot conclude that the State party has violated article 23, but draws its attention to the need to supplement the legislation, as stated in paragraph 10.4.

[20.59] A number of individual opinions were appended. Mr Wako concurred in the majority opinion, but submitted the following: ¶5. My . . . concern is whether the Netherlands legislation, as applied to the Hendriks family is compatible with the Covenant. Section 161, paragraph 5, of the Netherlands Civil Code does not provide for a statutory right of access to a child by the non-custodial parent, but leaves the question of visiting rights entirely to the discretion of the judge. The Netherlands legislation does not contain specific criteria for withholding of access. Thus the question arises whether the said general legislation can be deemed sufficient to guarantee the protection of children, in particular the right of children to have access to both parents, and to ensure equality of rights and responsibilities of spouses at the dissolution of a marriage, as envisaged in articles 23 and 24 of the Covenant. The continued contact between a child and a non-custodial parent is, in my opinion, too important a matter to be left solely to the judge to decide upon without any legislative guidance or clear criteria, hence the emerging international norms, notably international conventions against the abduction of children by parents, bilateral agreements providing for visiting rights and, most importantly, the draft convention on the rights of the child, draft article 6, paragraph 3, of which provides: ‘a child who is separated from one or both parents has the right to maintain personal relations and direct contacts with both parents on a regular basis, save in exceptional circumstances’. Draft article 6, paragraph 2, provides similarly: ‘a child whose parents reside in different

Protection of the Family

695

States shall have the right to maintain on a regular basis, save in exceptional circumstances, personal relations and direct contacts with both parents. . . . ’50 ¶6. The facts of this case, as presented to the Committee, do not reveal the existence of any exceptional circumstances that might have justified the denial of personal contacts between Wim Hendriks junior and Wim Hendriks senior. The Netherlands courts themselves agreed that the father’s application for access was reasonable, but denied the application primarily on the grounds of the mother’s opposition. Although the Netherlands courts may have applied Netherlands law to the facts of this case correctly, it remains my concern that that law does not include a statutory right of access nor any identifiable criteria under which the fundamental right of mutual contact between a non-custodial parent and his or her child could be denied. I am pleased that the Netherlands Government is currently contemplating the adoption of new legislation which would provide for a statutory right of access and give the courts some guidance for the denial of access based on exceptional circumstances. This legislation, if enacted, would better reflect the spirit of the Covenant.

[20.60] Messrs Dimitrijevic, El Shafei, Zielinski, and Mrs Higgins were also distinctly uneasy in their concurring judgment: ¶1. The great difficulty that we see in this case is that the undoubted right and duty of a domestic court to decide ‘in the best interests of the child’ can, when applied in a certain way, deprive a non-custodial parent of his rights under article 23. ¶2. It is sometimes the case in domestic law that the very fact of a family rift will lead a non-custodial parent to lose access to the child, though he/she has not engaged in any conduct that would per se render contact with the child undesirable. However, article 23 of the Covenant speaks not only of the protection of the child, but also of the right to a family life. We agree with the Committee that this right to protection of the child and to a family life continues, in the parent-child relationship, beyond the termination of a marriage. ¶3. In this case, the Amsterdam District Court rejected the father’s petition for access, although it had found the request reasonable and one that should in general be allowed. It would seem, from all the documentation at our disposal, that its denial of Mr Hendriks’ petition was based on the tensions likely to be generated by the mother’s refusal to agree to such a contact—‘even to a single meeting between the boy and his father on neutral ground, despite the fact that the Child Care and Protection Board would agree and would have offered guarantees’ (decision of 20 December 1978). Given that it was not found that Mr Hendriks’ character or behaviour was such as to make the contact with his son undesirable, it seems to us that the only ‘exceptional circumstance’ was the reaction of Wim Hendriks junior’s mother to the possibility of parental access and that this determined the perception of what was in the best interests of the child. ¶4. It is not for us to insist that the courts were wrong, in their assessment of the best interests of the child, in giving priority to the current difficulties and tensions rather than to the long-term importance for the child of contact with both its parents. However, we cannot but point out that this approach does not sustain the family rights to which Mr Hendriks and his son were entitled under article 23 of the Covenant.

[20.61] The HRC’s exoneration of the State Party in spite of the criticisms of all members is perhaps bewildering. Nowak suggests that the decision ‘makes sense 50

See art 9 of the final Convention on the Rights of the Child.

696

The ICCPR

only when one considers that article 23(4) establishes a progressive implementation duty’.51 [20.62] Another reason that the HRC found in favour of the Netherlands was that it deferred to the decision of the Dutch family courts. This is the Committee’s common practice in the absence of procedural deficiencies in domestic proceedings [1.54].52 Mr Wako commented upon the consequences of this approach in his separate opinion: ¶3. My first concern is that, though the Committee’s practice of not reviewing the decisions of local courts is prudent and appropriate, it is not dictated by the Optional Protocol. In cases where the facts are clear and the tests of all relevant orders and decisions have been made available by the parties, the Committee should be prepared to examine them as to their compatibility with the specific provisions of the Covenant invoked by the author. Thus, the Committee would not be acting as a ‘fourth instance’ in determining whether a decision of a State party’s court were correct according to that State’s legislation, but would only examine whether the provisions of the Covenant invoked by the alleged victim have been violated. ¶4. In the present case, the Committee declared the communication of Mr Hendriks admissible, thus indicating that it was prepared to examine the case on the merits. In its views, however, the Committee has essentially decided that it is able to examine whether the decisions of the Netherlands courts not to grant the author visiting rights to his son were compatible with the requirements of protection of the family and protection of children laid down in articles 23 and 24 of the Covenant. Paragraph 10.3 of the decision reflects the Committee’s understanding of the scope of article 23, paragraphs 1 and 4, and of the concept of ‘family’. In paragraph 10.4, the Committee underlines the importance of maintaining permanent personal contact between the child and both his parents, barring exceptional circumstances: it further states that the unilateral opposition by one of the parents—as apparently happened in this case—cannot be considered such an exceptional circumstance. The Committee should therefore have applied these criteria to the facts of the Hendriks case, so as to determine whether a violation of the articles of the Covenant had occurred. The Committee, however, makes a finding of no violation on the ground that the discretion of the local courts should not be questioned.

[20.63]

BALAGUER SANTACANA v SPAIN (417/90)

The author and María del Carmen Montalvo Quiñones decided to live together in 1983. On 15 October 1985, Ms Montalvo gave birth to a girl, who was recognized by both parents and registered in Barcelona under the name of María del Carmen Balaguer Montalvo. After the birth of the child, their relationship deteriorated. In October 1986 Ms Montalvo left the common household, taking the child with her. Protracted custody disputes ensued. The author submitted the following complaint: ¶3. The author claims that he is a victim of a violation of article 23, paragraphs 1 and 4, of the Covenant, because he has been denied family rights and equality of treatment by the Spanish courts in the award of child custody and because of the failure of the courts to act promptly in enforcing a regime of reasonable parental visits. . . . He further claims that 51 52

Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 539. See also [14.63] and [21.30]ff.

Protection of the Family

697

Spanish legislation does not sufficiently guarantee the right of access and that the practice of Spanish courts, as illustrated by his own and many other cases, reveals a bias in favour of mothers and against fathers. Although he does not specifically invoke article 26 of the Covenant, the author’s allegations also pertain to this provision.

The HRC decided against the author in the following terms: ¶10.1. On the merits, the questions before the Committee concern the scope of articles 23, paragraphs 1 and 4; and 24, paragraph 1; i.e. whether or not these provisions guarantee an unqualified right of access for a divorced or separated parent, and a child’s right to have contact with both parents. Another issue is whether decisions on custody and access rights in the case have been based on distinctions made between fathers and mothers and, if so, whether these distinctions are based on objective and reasonable criteria, as follows from the application of article 26 of the Covenant. . . . ¶10.3. In the instant case, irrespective of the nature of the author’s relationship with Ms. Montalvo, the Committee observes that the State party has always acknowledged that the relations between the author and his daughter were protected by the law and that the mother, between 1986 and 1990, never objected to the author’s contacts with his daughter. It was only after Mr Balaguer continuously failed to observe, and objected to, the modalities of his right of access, that she sought exclusive custody and non-contentious proceedings were suspended. The Committee concludes that there has been no violation of article 23, paragraph 1. ¶10.4. The Committee further notes that article 23, paragraph 4, does not apply in the instant case, as Mr Balaguer was never married to Ms. Montalvo. If paragraph 4 is placed into the overall context of article 23, it becomes clear that the protection of the second sentence refers only to children of the marriage which is being dissolved. In any event, the material before the Committee justifies the conclusion that the State party’s authorities, when determining custody or access issues in the case, always took the child’s best interests into consideration. This is true also for the decisions of the Third Chamber of the Court of Badalona, which the author has singled out in particular.

Again, the HRC was unwilling to interfere with the domestic legal outcomes of family disputes. The HRC also confirmed that the rights in article 23(4) are limited to married or formerly married couples. Rights of equality and access to children for unmarried couples must therefore arise from other ICCPR guarantees, such as articles 23(1), 24 (concerning the rights of the child), and 26 (concerning non-discrimination). [20.64] It may be particularly appropriate for the HRC to exercise extreme caution before departing from the decisions of domestic family courts on exceptionally sensitive matters such as child custody or property settlements. Evidence in Optional Protocol (OP) cases is submitted in writing, so the HRC does not have the advantage of hearing witnesses and evaluating their demeanour. Furthermore, family court disputes are usually between private parties, such as a separated husband and wife. If one party petitions the HRC under the OP, the other party cannot be compelled to participate and give his/her side of the story.53 It perhaps seems unfair, and unwise in the inflammatory arena of family law, for the HRC to 53

Any such submission would have to be through the State Party.

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The ICCPR

overturn family court decisions without hearing from all relevant parties to those decisions. Nevertheless, the HRC has overturned some family law decisions, as evinced in the following cases. [20.65]

FEI v COLOMBIA (514/92)

The Committee found a violation of article 23(4) as follows: ¶8.9. As to the alleged violation of article 23, paragraph 4, the Committee recalls that this provision grants, barring exceptional circumstances, a right to regular contact between children and both of their parents upon dissolution of a marriage. The unilateral opposition of one parent generally does not constitute such an exceptional circumstance. [Views on case No 201/85 (Hendriks v The Netherlands), adopted on 27 July 1988, para 10.4.] ¶8.10. In the present case, it was the author’s ex-husband who sought to prevent the author from maintaining regular contact with her daughters, in spite of court decisions granting the author such access. On the basis of the material made available to the Committee, the father’s refusal apparently was justified as being ‘in the best interest’ of the children. The Committee cannot share this assessment. No special circumstances have been adduced that would have justified the restrictions on the author’s contacts with her children. Rather, it appears that the author’s ex-husband sought to stifle, by all means at his disposal, the author’s access to the girls, or to alienate them from her. The severe restrictions imposed by Mrs Fei’s ex-husband on Mrs Fei’s rare meetings with her daughters support this conclusion. Her attempts to initiate criminal proceedings against her ex-husband for non-compliance with the court order granting her visiting rights were frustrated by delay and inaction on the part of the prosecutor’s office. In the circumstances, it was not reasonable to expect her to pursue any remedy that may have been available under the Code of Civil Procedure. In the Committee’s opinion, in the absence of special circumstances, none of which are discernible in the present case, it cannot be deemed to be in the ‘best interest’ of children virtually to eliminate one parent’s access to them. That Mrs Fei has, since 1992–1993, reduced her attempts to vindicate her right of access cannot, in the Committee’s opinion, be held against her. In all the circumstances of the case, the Committee concludes that there has been a violation of article 23, paragraph 4. Furthermore, the failure of the prosecutor’s office to ensure the right to permanent contact between the author and her daughters also has entailed a violation of article 17, paragraph 1, of the Covenant.

The facts in Fei may be distinguished from those in Hendriks on the basis that the relevant local proceedings in Colombia were blatantly unfair.54 Thus, the HRC was not disposed to defer to the local courts’ decisions and actions. A similar situation would probably arise if the local courts’ decisions were based on unjust legislation. [20.66]

LP v CZECH REPUBLIC (946/00)

The following case had similar facts to those in Hendriks [20.58], with a starkly different merits decision. The complaint was made under article 17, but could 54

Indeed, the HRC also found a breach of the right to a fair trial [14.94].

Protection of the Family

699

have easily concerned article 23 too. The facts underlying the complaint are evident below: ¶2.1. The author, a businessman and leading representative of the non-governmental organization ‘Justice for children’ and one of the founding members of ‘Society for the Family Mediation’, has a son, who was born in 1989. Since the author separated from his wife and the mother of his son, Ms. R.P., in March 1991, their son has been under the exclusive care of the mother, and the author has been denied regular contact with him. ¶2.2. In a preliminary court decision from the Regional Court Prague West of 12 July 1993, confirmed in a further preliminary court decision of 2 October 1995, the author was granted the right to see his son every second weekend from Saturday morning until Sunday evening. However, Ms. R.P. did not comply with the decisions and has refused the author regular access ever since. Only during 1994 and 1995 was the author allowed to see his son on an irregular basis, but then under the surveillance of a family member of Ms. R.P. or armed security officers. Ms. R.P. has been repeatedly fined for her refusal to comply with the courts’ decisions. ¶2.3. In 1994, the author initiated criminal proceedings against her for not complying with the said court decisions, in accordance with the Criminal Code No. 140/1961 Coll., paragraph 171, section 3. The case was dealt with by the Court of Okresní soud Ústí nad Labem, and had at the time of the author’s submission to the Committee on 9 February 2002, not yet been decided. . . . ¶3.1. The author alleges violations of his . . . rights to protection of their family life, including his right to regular access to his son. ¶3.2. The author claims that the Czech authorities have refused to act upon the court decisions allowing him regular access to his son, thus violating his and his son’s right to protection of their family life under article 17, and to an effective remedy under article 2, paragraph 3, of the Covenant. ¶5.1. . . . [T]he substance of the case . . . is that [the author] for 11 years has been prevented from meeting with his son, and that the Czech authorities have neglected to protect his rights as a father, by failing to carry out appropriate investigations regarding the criminal allegations brought by him.

The HRC found in favour of the author: ¶7.3. The Committee considers that article 17 generally includes effective protection to the right of a parent to regular contact with his or her minor children. While there may be exceptional circumstances in which denying contact is required in the interests of the child and cannot be deemed unlawful or arbitrary, in the present case the domestic courts of the State party have ruled that such contact should be maintained. Consequently, the issue before the Committee is whether the State party has afforded effective protection to the author’s right to meet his son in accordance with the court decisions of the State party. ¶7.4. Although the courts repeatedly fined the author’s wife for failure to respect their preliminary orders regulating the author’s access to his son, these fines were neither fully enforced nor replaced with other measures aimed at ensuring the author’s rights. In these circumstances and taking into account the considerable delays at various stages of the proceedings, the Committee takes the view that the author’s rights under article 17 of the Covenant, in conjunction with article 2, paragraphs 1 and 2 of the Covenant, did not receive

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effective protection. Consequently, the Committee is of the view that the facts before it disclose a violation of article 17, in conjunction with article 2 of the Covenant. ¶8. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy, which should include measures to ensure prompt implementation of the court’s orders regarding contact between the author and his son.

The HRC in LP exhibits a willingness to intervene in sensitive family law disputes which was missing in Hendriks and Balaguer Santacana. A similar willingness arose in Martínez v Paraguay (1407/05), which is discussed at [21.34] as it also involved a finding regarding children’s rights. [20.67] Article 23(4) also prescribes that adequate provision be made for children at the dissolution of their parents’ marriage. No HRC comment has elaborated on this aspect of the article. It is likely that this right is subsumed by the article 24 right of children to protection.

Conclusion [20.68] The HRC has confirmed that States have protective duties with regard to ‘the family’ under article 23(1), which has been defined in broad terms. For example, States should take appropriate measures to ensure family unity and reunion. In certain circumstances, as in Winata v Australia (930/00) [20.29], States should adapt their immigration laws to ensure that families are not unduly interfered with. However, these duties regarding family reunion are not absolute, as has been evinced by decisions such as Sahid v New Zealand (893/99) [20.33]. The HRC has also changed its view on the family unity rights of long-term resident aliens who are deported due to their criminal records: such rights, once weak in cases like Stewart v Canada (538/93) [20.24] are now quite strong since Dauphin v Canada (1792/08) [20.27]. The only case on article 23(2) and (3) concerned the right to marry under article 23(2) in Joslin v New Zealand (902/99), where the HRC denied that the ICCPR guaranteed a right of same-sex marriage [20.42]. Furthermore, the HRC has generally been reluctant to interfere with State family court judgments which have allegedly breached article 23(4) rights. The intimate and emotional nature of family law may justify a greater degree of caution on the part of the HRC before disturbing local court judgments [20.64]. However, the LP case [20.66] may have evinced a new willingness to overturn domestic court proceedings in this respect.

21 Protection of Children—Article 24 • • • • • •

•

• • •

The Convention on the Rights of the Child . . . . . . . . . . . . . . . . . . . . . . The Ancillary Nature of Article 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . Economic, Social, and Cultural Rights and Article 24 . . . . . . . . . . . . . Age of Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Right of Non-discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Children’s Rights within the Family . . . . . . . . . . . . . . . . . . . . . . . . . . . • Parental Access Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Family Unity and Migration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Duty to Intervene in the Family Environment . . . . . . . . . . . . . . . . . . Child Exploitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Sexual Exploitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Child Labour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Kidnapping. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Child Soldiers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Right to Registration and a Name: Article 24(2) . . . . . . . . . . . . . . . . . Right to a Nationality: Article 24(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[21.02] [21.06] [21.15] [21.19] [21.23] [21.26] [21.29] [21.35] [21.38] [21.40] [21.41] [21.47] [21.48] [21.50] [21.52] [21.55] [21.61] [21.63]

ARTICLE 24 1. Every child shall have without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor on the part of his family, society and the State. 2. Every child shall be registered immediately after birth and shall have a name. 3. Every child has the right to acquire a nationality.

[21.01] Article 24 accords the special protection to the child required by his/her status as a minor, in addition to those reflected elsewhere in the Covenant. Whilst historically international law may have reflected limited recognition of the civil and political rights of children, this is no longer the case. Children traditionally were defined by their incompetence, rather than as right-holders in international law.1 However, the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child demonstrate that civil and political rights are applicable to children, both as ‘people’ in the general sense and, where appropriate, specifically by virtue of their status as minors. This chapter will focus on the specific civil and political rights of children, where children’s rights differ from rights accorded in general to children and adults. 1 See G Van Bueren, The International Law on The Rights of the Child (Martinus Nijhoff, 1995), 145.

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The ICCPR

The Convention on the Rights of the Child [21.02] The primary international instrument concerning children’s rights is the United Nations Convention on the Rights of the Child, 1989 (CRC).2 The principles underlying the Convention are based on the idea that children, by reason of their physical and mental immaturity, need special safeguards and care, including appropriate legal protection, and the recognition that there are children living in exceptionally difficult conditions in all countries.3 The CRC has the most States Parties of any of the major UN human rights treaties.4 [21.03] The CRC is concerned with four primary aims: participation, protection, prevention, and provision.5 All States Parties to the CRC undertake the obligation to advance ‘the best interests of the child’, assessed from the child’s perspective, not that of the parents or the State. [21.04] The civil and political rights of children are specifically addressed in the CRC, reflecting similar rights to those accorded in the ICCPR. The CRC, being concerned with the general wellbeing of children, also contains important economic, social, and cultural rights, so it overlaps substantially with the International Covenant on Economic Social and Cultural Rights (ICESCR). [21.05] The Human Rights Committee (HRC) may be expected to be influenced by the CRC in its interpretation of article 24. Therefore, further provisions of the CRC are excerpted, where appropriate, below.

The Ancillary Nature of Article 24 [21.06] Article 2(1) states that the Covenant applies to all individuals within the jurisdiction, and thus it must also apply to minors. The ancillary role of article 24 is explained by the HRC: GENERAL COMMENT 17 ¶1. Article 24 of the International Covenant on Civil and Political Rights recognises the right of every child, without any discrimination, to receive from his family, society and the State the protection required by his status as a minor. Consequently, the implementation of this provision entails the adoption of special measures to protect children, in addition to 2 GA res 44/25, annex, 44 UN GAOR Supp (No 49), 167, UN doc A/44/49 (1989). See further, L LeBlanc, The Convention on the Rights of the Child: United Nations Lawmaking on Human Rights (University of Nebraska Press, 1995). 3 See Preamble to the CRC. 4 As at June 2012, only the United States, Somalia, and South Sudan have failed to ratify this Convention. 5 ‘The participation of children in decisions affecting their own destiny; the protection of children against discrimination and all forms of neglect and exploitation; the prevention of harm to children; and the provision of assistance for their basic needs’: Van Bueren, The International Law on The Rights of the Child, 15.

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the measures that States are required to take under article 2 to ensure that everyone enjoys the rights provided for in the Covenant. The reports submitted by States parties often seem to underestimate this obligation and supply inadequate information on the way in which children are afforded enjoyment of their right to a special protection. ¶2. In this connection, the Committee points out that the rights provided for in article 24 are not the only ones that the Covenant recognises for children and that, as individuals, children benefit from all of the civil rights enunciated in the Covenant. In enunciating a right, some provisions of the Covenant expressly indicate to States measures to be adopted with a view to affording minors greater protection than adults. Thus, as far as the right to life is concerned, the death penalty cannot be imposed for crimes committed by persons under 18 years of age [8.65]. Similarly, if lawfully deprived of their liberty, accused juvenile persons shall be separated from adults and are entitled to be brought as speedily as possible for adjudication; in turn, convicted juvenile offenders shall be subject to a penitentiary system that involves segregation from adults and is appropriate to their age and legal status, the aim being to foster reformation and social rehabilitation [9.237]. In other instances, children are protected by the possibility of the restriction—provided that such restriction is warranted—of a right recognised by the Covenant, such as the right to publicise a judgement in a suit at law or a criminal case, from which an exception may be made when the interest of the minor so requires [14.183].

[21.07] The General Comment states that ‘all of the civil rights’ in the ICCPR are applicable to children, perhaps suggesting that children cannot enjoy political rights upheld in the Covenant. Indeed, children are generally denied the article 25 rights to vote and stand for election.[22.25] [21.08] Article 24 ensures a child’s rights to those measures of protection required of his or her family, society, and the State. This is more than mere reinforcement of the rights guaranteed elsewhere in the Covenant; the laws of a State Party must reflect the special status of a minor and afford special protection to the child. Indeed, it seems that article 24 acts to ‘top up’ the other civil rights offered to children by the ICCPR’s other guarantees by more explicitly requiring positive measures of protection.6 For example, under article 7, a child is entitled to freedom from excessive corporal punishment [9.127]. However, in Concluding Observations on the Kyrgyz Republic, the HRC implied that any corporal punishment of children is also prohibited under article 24.7 The HRC explicitly condemned corporal punishment within the family environment as a disciplinary measure in comments to Ecuador.8 [21.09]

JALLOH v NETHERLANDS (794/98)

The author was an asylum-seeker detained for three-and-a-half months by the Netherlands pending determination of his eligibility for asylum. At the time of his detention, he was 17 years old. The author failed to establish that his detention See eg De Gallicchio and Vicario v Argentina (400/90), para 10.5 [21.56]. (2000) UN doc CCPR/CO/69/KGZ, para 19. See also eg Concluding Observations on Greece (2005) UN doc CCPR/CO/83/GRC, para 16; St Vincent and the Grenadines (2008) UN doc CCPR/C/ VCT/CO/2, para 11; Nicaragua (2008) UN doc CCPR/C/NIC/CO/3, para 15. 8 Concluding Observations on Ecuador (2009) UN doc CCPR/C/ECU/CO/5, para 14. See also Concluding Observations on Kazakhstan (2011) UN doc CCPR/C/KAZ/CO/1, para 15. 6 7

704

The ICCPR

breached the provisions in article 9 which grant a right to liberty [11.29]. The author also claimed a breach of article 24. In rejecting the claim, the HRC stated: ¶8.3. The author has raised a further claim against his detention in so far as it violated the State party’s obligation under article 24 of the Covenant to provide special measures of protection to him as a minor. . . . The State party has argued that there were doubts about the author’s age, that it was not certain that he was a minor until the Court’s judgement following the medical examination of 4 June 1997, and that in any event article 26 of the [Dutch] Aliens Act does not preclude the detention of minors. The Committee notes that apart from a statement that the author was detained, he does not provide any information on the type of detention facility [in which] he was accommodated, or his particular conditions of detention. In this respect, the Committee notes the State party’s explanation that the detention of minors is applied with great restraint. The Committee further notes that the detention of a minor is not per se a violation of article 24 of the Covenant. In the circumstances of this case, where there were doubts as to the author’s identity, where he had attempted to evade expulsion before, where there were reasonable prospects for expulsion, and where an identity investigation was still ongoing, the Committee concludes that the author has failed to substantiate his claim that his detention for three and a half months entailed a failure by the State party to grant him such measures of protection as are required by his status as a minor. The Committee therefore finds that the facts before it do not disclose a violation of article 24(1) of the Covenant

[21.10]

D and E v AUSTRALIA (1050/02)

This case concerned the mandatory immigration detention of a family, including two children, who had arrived in Australia seeking asylum. The detention was found to constitute arbitrary detention, contrary to article 9(1), for each member of the family [11.26]. This fact distinguishes this case from Jalloh. However, a separate claim of breach of article 24 for the children was found to be inadmissible. ¶6.4. As to the claim under article 24, the Committee notes the State party’s argument that the best interests of the authors’ children were best served by being held together with their parents. The Committee considers, in the light of the State party’s explanation of the efforts undertaken to provide children with appropriate educational, recreational and other programs, including outside the facility, that a claim of violation of their rights under article 24 has, in the circumstances, been insufficiently substantiated, for purposes of admissibility.

[21.11] Contrast D and E with the following case. BAKHTIYARI v AUSTRALIA (1069/02) Again, breaches of article 9 were found with regard to the mandatory detention of a family [11.26]. Here, however, the HRC also found a breach of article 24 with regard to the detention of children within that family. ¶9.7. Concerning the claim under article 24, the Committee considers that the principle that in all decisions affecting a child, its best interests shall be a primary consideration, forms an integral part of every child’s right to such measures of protection as required by his or her status as a minor, on the part of his or her family, society and the State, as required by article 24, paragraph 1, of the Covenant. The Committee observes that in this case children

Protection of Children

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have suffered demonstrable, documented and on-going adverse effects of detention suffered by the children, and in particular the two eldest sons, up until the point of release on 25 August 2003, in circumstances where that detention was arbitrary and in violation of article 9, paragraph 1, of the Covenant. As a result, the Committee considers that the measures taken by the State party had not, until the Full Bench of the Family Court determined it had welfare jurisdiction with respect to the children, been guided by the best interests of the children, and thus revealed a violation of article 24, paragraph 1, of the Covenant, that is, of the children’s right to such measures of protection as required by their status as minors up that point in time.

It seems Bakhtiyari is distinguishable from D and E due to the demonstrable mental harm suffered by the relevant children in detention. [21.12] Regarding unaccompanied child asylum-seekers, the HRC has recommended to Russia that it should guarantee the appointment of a legal guardian for them.9 [21.13]

LLANTOY-HUAMÁN v PERU (1153/03)

This case involved numerous violations entailed in the State’s refusal to allow a therapeutic abortion to be performed on a 17-year-old girl who was carrying an anencephalic foetus.10 One of the violations found was with regard to article 24: ¶6.5 The author claims a violation of article 24 of the Covenant, since she did not receive from the State party the special care she needed as a minor. The Committee notes the special vulnerability of the author as a minor girl. It further notes that, in the absence of any information from the State party, due weight must be given to the author’s claim that she did not receive, during and after her pregnancy, the medical and psychological support necessary in the specific circumstances of her case. Consequently, the Committee considers that the facts before it reveal a violation of article 24 of the Covenant.

[21.14] In Laureano v Peru (540/93), a violation of the right to life (article 6) was exacerbated by the fact that the victim was a child. Chihoub v Algeria (1811/08) concerned the enforced disappearance of the authors’ sons, including one who was only 16 at the time of his abduction. Along with numerous other violations, a violation of article 24 was found in relation to that son.11 In Brough v Australia (1184/03), the relevant violations were exacerbated by the victim’s status as a minor, and attracted a finding of violation of article 24(1) along with other violations [9.202].12 In Kaba v Canada (1465/06), the proposed deportation of a child to a place where she faced genital mutilation in breach of Article 7 [9.62] would also breach her article 24 rights.13 In LNP v Argentina (1610/07), the appalling treatment of a young girl who claimed to be a rape victim was found to breach article 24 amongst other violations.14

9

Concluding Observation on the Russian Federation (2003) UN doc CCPR/CO/79/RUS, para 25. 11 See also, eg, [8.93] and [9.58]. At para 8.10. 13 At para 9.4. At para 10.3. 14 At para 13.4. 10 12

The ICCPR

706

Economic, Social, and Cultural Rights and Article 24 [21.15]

GENERAL COMMENT 17

¶3. In most cases, . . . the measures to be adopted are not specified in the Covenant and it is for each State to determine them in the light of the protection needs of children in its territory and within its jurisdiction. The Committee notes in this regard that such measures, although intended primarily to ensure that children fully enjoy the other rights enunciated in the Covenant, may also be economic, social and cultural. For example, every possible economic and social measure should be taken to reduce infant mortality and to eradicate malnutrition among children and to prevent them from being subjected to acts of violence and cruel and inhuman treatment or from being exploited by means of forced labour or prostitution, or by their use in the illicit trafficking of narcotic drugs, or by any other means. In the cultural field, every possible measure should be taken to foster the development of their personality and to provide them with a level of education that will enable them to enjoy the rights recognised in the Covenant, particularly the right to freedom of opinion and expression. . . .

[21.16] Article 24 thus incorporates an economic, social, and cultural element into the protection of children’s rights, as is confirmed in Concluding Observations on Canada:15 ¶18. The Committee is concerned that differences in the way in which the National Child Benefit Supplement for low-income families is implemented in some provinces may result in a denial of this benefit to some children. This may lead to non-compliance with article 24 of the Covenant. . . . ¶20. . . . the very high poverty rate among single mothers leaves their children without the protection they are entitled to under the Covenant. . . .

See also the following comment on Georgia:16 ¶23. The Committee is concerned at the increase in the number of children affected by poverty and social dislocation and the concomitant increase in the number of street children, delinquents or drug-addicts.

[21.17] In General Comment 17, the HRC states that education is of fundamental importance to the proper development of a child’s personality. Although a right to education is an economic and social right, it is essential to ensure the capacity to exercise civil and political rights, and is therefore an important component of article 24 protection. For example, in Concluding Observations on Zambia, the HRC has stated:17 ¶17. The Committee is also concerned that no measures are taken to ensure that pregnancy or parenthood do not affect the continuous education of children.

Similarly, regarding Costa Rica, the HRC stated:18

15 17

(1999) UN doc CCPR/C/79/Add.105. (1996) UN doc CCPR/C/79/Add.62.

16 18

(1997) UN doc CCPR/C/79/Add.74. (1999) UN doc CCPR/C/79/Add.107.

Protection of Children

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¶19. The Committee further notes an increase in child labour and school drop-out, and that no effective remedies are in place.19

In Concluding Observations on Poland, the HRC stated:20 ¶24. The Committee is concerned that children who have run away from foster care centres can allegedly be placed in police custody centres for children (art. 24). The State party should introduce new legislation governing in detail the living conditions to be secured in police custody centres for children and the rules governing children’s entry and stay in such facilities. It should also ensure that children who have not committed a punishable act are not placed in such custody centres.

This analysis also highlights the indivisibility and permeability of economic, social, and cultural rights and civil and political rights [1.104]. [21.18] There is an unresolved issue as to the interplay between rights of education within article 24 and the religious education rights granted to parents by article 18(4) of the ICCPR. For example, what happens if a child does not want to pursue the religious education prescribed by his or her parents?

Age of Majority [21.19] The age of majority is not set out by article 24 ICCPR. In contrast, the age of majority specified in article 1 of the CRC is 18, ‘unless under the law applicable to the child, majority is attained earlier’. The HRC leaves the question of when a child becomes an adult for legal purposes to be determined by each State Party: GENERAL COMMENT 17 ¶4. The right to special measures of protection belongs to every child because of his status as a minor. Nevertheless, the Covenant does not indicate the age at which he attains his majority. This is to be determined by each State party in the light of the relevant social and cultural conditions. In this respect, States should indicate in their reports the age at which the child attains his majority in civil matters and assumes criminal responsibility. States should also indicate the age at which a child is legally entitled to work and the age at which he is treated as an adult under labour law. States should further indicate the age at which a child is considered adult for the purposes of article 10, paragraphs 2 and 3. However, the Committee notes that the age for the above purposes should not be set unreasonably low and that in any case a State party cannot absolve itself from its obligations under the Covenant regarding persons under the age of 18, notwithstanding that they have reached the age of majority under domestic law.21

19 See discussion at [21.47], where the HRC links its concerns regarding child labour to the detrimental impact it has on a child’s education. 20 (2010) UN doc CCPR/C/POL/CO/6. 21 A specific age is referred to in art 6(5) which prohibits the death penalty for persons ‘below 18 years of age’. The historical and contemporary standards for defining childhood are reviewed in Van Bueren, The International Law on The Rights of the Child, 32–8.

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The ICCPR

[21.20] The HRC has expressed concern where the age of criminal responsibility is very low. For example, in Concluding Comments on Guyana, the HRC stated:22 ¶16. The Committee expresses its profound concern that children, including children under 10 years of age, are held in detention on remand. The State party should take immediate steps to ensure that children are not held in detention together with adults and that young children are not held in detention at all (arts. 10 (2) and 24).

Similar statements were made regarding Sri Lanka:23 ¶20. The low age of criminal responsibility and the stipulation within the Penal Code by which a child above 8 years of age and under 12 years of age can be held to be criminally responsible on the determination by the judge of the child’s maturity of understanding as to the nature and consequence of his or her conduct are matters of profound concern to the Committee.

[21.21] Regarding the United States, the HRC has stated that life sentences without parole for those under the age of 18 at the time of the commission of the relevant offence do not comply with article 24.24 [21.22] The HRC has frequently expressed concern regarding overly young ‘marriageable ages’.25 Regarding Venezuela, the HRC has stated:26 ¶18. The minimum marriageable age, 14 for girls and 16 for boys, and the fact that such age may be lowered without any limits for girls in case of pregnancy or childbirth, raises problems with respect to the fulfilment by the State party of its obligations under article 24, paragraph 1, to protect minors. Marriage at such an early age does not appear to be compatible with article 23 of the Covenant, which requires the free and full consent of the intending spouses. The Committee is also concerned at the early age of sexual consent (12) for girls. . . .

Further, laws that set differing ages of consent for marriage for males and females will breach articles 23 and 24. Regarding France, the HRC stated:27 ¶25. The Committee is concerned that the Civil Code establishes a different minimum age for marriage for girls (15) and for boys (18) and that it sets such a low age for girls. . . . 22

(2000) UN doc CCPR/C/79/Add.121, para 16. (1995) UN doc CCPR/C/79/Add.56; see also Concluding Observations on Hong Kong (China) (1999) UN doc CCPR/C/79/Add.117, para 17 (criticizing the age of responsibility being 7); Belgium (1998) UN doc CCPR/C/79/Add.99, para 21; Kenya (2005) UN doc CCPR/CO/83/KEN, para 24; Zambia (2007) UN doc CCPR/C/ZMB/CO/3, para 26. 24 Concluding Observations on the United States (2006) UN doc CCPR/C/USA/CO/3/Rev.1, para 34. 25 See also [20.51] on art 23(3). Article 16(2) of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) also prohibits ‘the betrothal and marriage of a child’. 26 (2001) UN doc CCPR/CO/71/VEN; see also Concluding Observations on Sri Lanka (1995) UN doc CCPR/C/79/Add.56, paras 25 and 38; Syrian Arab Republic (2001) UN doc CCPR/CO/71/SYR, para 20; Bulgaria (2011) UN doc CCPR/C/BGR/CO/3, para 15. 27 (1997) UN doc CCPR/C/79/Add.80. Note that the HRC praised France’s change in the law in 2008 (UN doc CCPR/C/FRA/CO/4), which applied same minimum age for marriage of 18 for both men and women, at para 9. See also Concluding Observations on Cameroon (1999) UN doc CCPR/ C/79/Add.117, para 10; Chile (1999) UN doc CCPR/C/79/Add.104, para 21; Suriname (2004) UN doc CCPR/CO/80/SUR, para 18. 23

Protection of Children

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Right of Non-discrimination [21.23]

GENERAL COMMENT 17

¶5. The Covenant requires that children should be protected against discrimination on any grounds such as race, colour, sex, language, religion, national or social origin, property or birth. In this connection, the Committee notes that, whereas non-discrimination in the enjoyment of the rights provided for in the Covenant also stems, in the case of children, from article 2 and their equality before the law from article 26, the non-discrimination clause contained in article 24 relates specifically to the measures of protection referred to in that provision. Reports by States parties should indicate how legislation and practice ensure that measures of protection are aimed at removing all discrimination in every field, including inheritance, particularly as between children who are nationals and children who are aliens or as between legitimate children and children born out of wedlock.28

[21.24]

GENERAL COMMENT 28

¶28. The obligation of states to protect children (article 24) should be carried out equally for boys and girls. States should report on measures taken to ensure that girls are treated equally to boys in education, in feeding and in health care, and provide the Committee with disaggregated data in this respect. States should eradicate, both through legislation and any other appropriate measures, all cultural or religious practices which jeopardize the freedom and well-being of female children.

[21.25] The HRC’s General Comment and its Concluding Observations have reflected a particular concern for the treatment of children born out of wedlock, for any distinction based on legitimacy would amount to discrimination by reason of ‘birth’. In Concluding Observations on the Libyan Arab Jamahiriya, the HRC stated:29 ¶18. The Committee expresses its concern over the persistence of discrimination in law and practice against children born out of wedlock, which is incompatible with articles 24 and 26 of the Covenant. It recommends that attention be paid to the prompt rectification of this situation with regard to all rights to which children are entitled.

Regarding France, the HRC stated:30 ¶25. . . . the Committee recommends that all children born out of wedlock be given the same succession rights as children born in wedlock.

Children’s Rights within the Family [21.26] There is considerable overlap between article 24 and article 23, which recognizes the family ‘as being the natural and fundamental unit of society’.

28

29 See also [23.79]. (1998) UN doc CCPR/C/79/Add.101. (1997) UN doc CCPR/C/79/Add.80; see also Concluding Observations on Iceland (1998) UN doc CCPR/C/79/Add.98, para 11. 30

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Both the HRC and the CRC texts recognize that the family is normally expected to provide the environment for a child’s proper development. GENERAL COMMENT 17 ¶6. Responsibility for guaranteeing children the necessary protection lies with the family, society and the State. Although the Covenant does not indicate how such responsibility is to be apportioned, it is primarily incumbent on the family, which is interpreted broadly to include all persons composing it in the society of the State party concerned, and particularly on the parents, to create conditions to promote the harmonious development of the child’s personality and his enjoyment of the rights recognised in the Covenant.

[21.27] It is increasingly common within many societies for both parents to work outside the home. The HRC has stressed that the State should ensure that proper childcare facilities and other institutional support are available to assist such parents to raise their child. GENERAL COMMENT 17 ¶6. . . . However, since it is quite common for the father and mother to be gainfully employed outside the home, reports by States parties should indicate how society, social institutions and the State are discharging their responsibility to assist the family in ensuring the protection of the child. . . .

[21.28] State laws must not unnecessarily threaten the stability of a child’s family environment. For example, the HRC stated in Concluding Observations on Switzerland:31 ¶19. The Committee is concerned at the requirement for persons who adopt a child abroad under the regime of simple adoption to submit an application for full adoption in Switzerland if they wish the adoption to be recognised in Switzerland. This procedure makes permanent adoption subject to a two-year trial period, during which the adoptive parents may decide not to go ahead with the adoption and the child is entitled only to a temporary and renewable foreigner’s residence permit. The Committee expresses its concern since these two factors make the child’s position very precarious from both the legal and emotional standpoints. . . . ¶30. The Committee recommends that the necessary legislative measures should be taken to ensure that children who have been adopted abroad are granted, as soon as they arrive in Switzerland, either Swiss nationality if the parents are Swiss, or a temporary or permanent residence permit if the parents have such a permit, and that the two-year trial period prior to the granting of adoption should not apply to them. PARENTAL ACCESS ISSUES

[21.29] The General Comment indicates that a child’s access to both parents, in the case of separation, should be guaranteed.

31

(1996) UN doc CCPR/C/79/Add.70.

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GENERAL COMMENT 17 ¶6. . . . If the marriage is dissolved, steps should be taken, keeping in view the paramount interest of the children, to give them necessary protection and, so far as is possible, to guarantee personal relations with both parents. . . .

[21.30]

DRBAL v THE CZECH REPUBLIC (498/92)

¶3.3. The author claims that the failure of the Courts to grant him custody of the child, notwithstanding recent expert opinions that the mother is considered incapable to care for the child, constitutes a violation of human rights. He alleges that the Czech authorities are of the opinion that a child should stay with the mother under all circumstances and that they do not protect the interests of the child.

The HRC majority rejected the author’s case in the following terms: ¶6.3. The Committee . . . notes that the author claims that the courts were biased against him and wrongfully decided to give custody of his daughter to the mother, and not to him, and not to change his daughter’s official place of residence. These claims relate primarily to the evaluation of facts and evidence by the courts. The Committee recalls that it is generally for the courts of States parties to the Covenant, and not for the Committee, to evaluate facts and evidence in a particular case, unless it is apparent that the courts’ decisions are manifestly arbitrary or amount to a denial of justice. In the instant case, which relates to the complex issue of child custody, the information before the Committee does not show that the decisions taken by the Czech courts or the conduct of the Czech authorities have been arbitrary or amounted to a denial of justice. Accordingly, the communication is inadmissible under article 3 of the Optional Protocol.

Drbal perhaps confirms that international bodies, which conduct proceedings in writing, remain properly reluctant to ‘overrule’ domestic courts in such sensitive areas as child access, child custody, or, as indicated in the following case, child maintenance.32 This observation is confirmed in the following case. [21.31]

LAING v AUSTRALIA (901/99)

In this case, the author had returned to Australia from the United States with her infant daughter Jessica, without the knowledge of her American husband. A US court then awarded the husband a divorce and custody of Jessica. The Australian courts then ordered that Jessica be returned to her father in the US pursuant to the Hague Convention on the Civil Aspects of Child Abduction. The author claimed that fufilment of that order would breach article 24, as it would remove her from the family she knows (now including a younger brother born in Australia). The HRC found the claim inadmissible. ¶7.3. As to the claims presented by the author on behalf of her daughter Jessica, the Committee notes that at the time of her removal from the United States Jessica was fourteen months old, making her ten and a half years old at the time of the adoption of the Committee’s decision. Notwithstanding the consistent practice of the Committee that a 32 See also [1.53], [20.64]; see generally [20.58]ff on how the issue of parental access to children has been addressed under art 23, on ‘family rights’.

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custodial, or, for that matter, non-custodial, parent is entitled to represent his or her child under the Optional Protocol procedure without explicit authorization, the Committee points out that it is always for the author to substantiate that any claims made on behalf of a child represent the best interest of the child. In the current case, the author had the opportunity to raise any concerns related to Covenant rights in the proceedings before the national courts. While the Committee takes the position that the application of the Hague Convention in no way excludes the applicability of the Covenant it considers that the author has failed to substantiate, for purposes of admissibility, that the application of the Hague Convention would amount to a violation of Jessica’s rights under the Covenant. Consequently, this part of the communication is inadmissible pursuant to article 2 of the Optional Protocol.

[21.32] Messr Bhagwati and Kälin dissented. . . . In paragraph 7.3 of the views adopted by the Committee, the majority considers that the author has failed to substantiate, for the purposes of admissibility, that the application of the Hague Convention on the Civil Aspects of Child Abduction (the Hague Convention) would amount to a violation of Jessica’s rights under the Covenant. This opinion seems to rest on the assumption that the application of the Hague Convention is in the best interest of the child and therefore automatically compatible with the Covenant. We agree with this view in principle, but disagree as regards its application in the circumstances of the present case. The purpose of the Hague Convention is to ‘secure the prompt return of children wrongfully removed’ (article 1) to the country from where they were abducted in order to reunite them with the parent who has been granted sole custody or to enable the courts of that country to determine the issue of custody without delay if this question is contentious. The Convention is thus based on the idea that it is in the best interest of the child to return to that country. This is certainly true if the return is executed within a relatively short period of time after the wrongful removal, but may be no longer the case if much time has elapsed since then. The Hague Convention recognizes this by allowing States not to return the child, inter alia if the child has spent a prolonged period of time abroad and is firmly settled there, if the return would cause serious harm and expose the child to serious dangers, or if the child is opposing return and is old and mature enough to take such a decision (articles 12 and 13). While the Committee had not to examine the application of the Convention by Australia as such, it is relevant to note that this treaty accepts that return may not always safeguard the rights and the best interest of the child. In the present case, the Committee has to decide whether upholding the decision by the competent Australian courts to return Jessica to the USA would violate her rights under the Covenant, in particular those under Articles 17, 23 and 24 of the Covenant. As she has not yet been returned, the material point in time must be that of the Committee’s consideration of the case, i.e. it is the present conditions which are decisive. In this regard, we note that Jessica is almost 11 years old and is clearly opposing the envisaged return to her father. She has spent all of her life in Australia except the first four months after her birth and another three months after her first birthday. When she was approximately three years old, the Full Court of the Family Court of Australia dismissed the appeal of her mother in this case. Since then, almost eight years have passed without any full examination of the question as to whether the circumstances mentioned in articles 12 and 13 of the Hague Convention would apply in her case. This raises serious questions under the Covenant, in particular the following: Can the right of Jessica to lead a family

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life with her mother and brother still be trumped by the right of a distant father who was granted, more than a decade ago, sole permanent custody of the child, with no visitation rights of the mother? Would it be compatible with her right to such measures of protection as are required by her status as a minor to force her to live with a man who she most probably will battle in court and who she only knows as the person who wanted to separate her from her mother and brother as long as she can remember? These and similar questions are serious enough to warrant a thorough examination on the merits. Therefore, we would declare the communication admissible with regard to Jessica’s claim to be a victim of a violation of Articles 17, 23 and 24 of the Covenant.

[21.33] It is submitted that the minority view is preferable. However, Mr Scheinin delivered a concurring opinion, explaining that the case potentially concerned the conflict rights of the mother and the father, and how this scenario could affect admissibility: . . . In addressing the question whether such a claim is substantiated the Committee would need to keep in mind also the alternative scenario of a parent claiming a violation of the human rights of an abducted child due to the non-implementation of the decisions of a State party’s own courts to return the child to the jurisdiction of the country from which he or she was removed. While there is no general solution to such conflicting human rights claims, this setting of potentially conflicting claims affects the application of the substantiation requirement as one of the admissibility conditions.

[21.34] Unusually, the HRC did find violations of article 24 (as well as article 23) with regard to child access in the following case. MARTÍNEZ v PARAGUAY (1407/05) The author alleged that his wife had unlawfully moved to Paraguay from Spain with their two children. He eventually went to Paraguay to seek custody. A Paraguayan court order granted him visitation rights but the mother did not comply. Another Paraguayan court awarded him custody of the children in light of their illegal abduction from Spain. However, that decision was overruled on appeal. The author claimed that the circumstances gave rise to violations of articles 23 and 24. The HRC agreed: ¶7.2. The Committee must determine whether, in the course of the author’s efforts to maintain contact with his minor daughters and exercise his right of custody, a right granted by the Spanish courts, the State party violated the right of the author and his daughters, as a family, to the protection of the State under article 23, paragraph 1, of the Covenant. The Committee notes that the author and his ex-wife were married in August 1997 and that his daughters were born in 1997 and 1999 respectively. The family first lived in Paraguay and in September 1999 moved to Spain, where the author was working. Starting in January 2001, when his ex-wife left Spain for good with their daughters, the author made numerous attempts to keep in contact with the children, obtain their return and meet their material and emotional needs. On the legal front, his efforts took the form of administrative and judicial action of various kinds, both in Spain, the last place the family lived, and in the State party. The remedies invoked in the Spanish courts gave rise to a separation order in November 2002 granting the author care and custody of the girls. In addition, the Spanish authorities made approaches to the State party with a view to protecting the author’s rights under the Hague Convention on the Civil Aspects of International Child Abduction, to which both States are party.

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¶7.3. With regard to the measures taken in the State party, the Committee notes that the author applied to the courts in proceedings of two kinds: (a) to obtain the return of the children and (b) to obtain effective access to his children and assert his right of custody. The former gave rise to judgements in three courts, of which the Appeal Court and Supreme Court rulings found against the return of the children. Both the Appeal Court and the Supreme Court state that they have taken account of the children’s best interests and that taking them to Spain would in their view have put them at psychological risk given their young age. Yet the judgements do not explain what either court understands by ‘best interests’ and ‘psychological risk’ or what evidence was considered in reaching the conclusion that there was in fact such a risk. There is also nothing to show that the author’s complaints concerning the children’s unsafe living conditions in Paraguay were duly examined. The Committee also notes that the lower court judgement emphasized the need for speedy settlement of the issue of return, despite which the Supreme Court took nearly four years to hand down its ruling, too long for a case such as this. ¶7.4. As to the remedies invoked by the author in the State party with a view to making contact with his daughters and obtaining custody, the Committee notes that the author applied to the courts on these matters. The file shows, for example, that in March 2002 the author obtained court authorization for the girls to spend a few days with him but that the authorization could not be implemented because the mother refused to comply. The authorities did nothing to ensure that the author’s ex-wife complied with the court order. The Committee also notes that, while his constitutional challenge was still pending, the author complained to the court about the neglect of the children and the situation of risk they were in, and sought temporary custody, yet he never received a reply to his application. The Committee also notes the statements by the Appeal Court and the State party to the effect that the issues relating to custody of the children should be settled in Paraguay and that denial of return did not stop the author availing himself of a visiting and access arrangement. Despite these statements, however, there has been no decision by the State party authorities on custody rights or visiting arrangements for the author. ¶7.5. In light of the foregoing, the Committee finds that the State party has not taken the necessary steps to guarantee the family’s right to protection under article 23 of the Covenant, in respect of the author and his daughters, or the daughters’ right, as minors, to protection under article 24, paragraph 1, of the Covenant.

As noted above, the HRC does not normally interfere with municipal court decisions regarding custody and access to children. However, the poor reasoning of the Paraguayan courts, as well as Paraguay’s failure to enforce court decisions against Martínez’s wife, breached articles 23 and 24 of the ICCPR. See also LP v Czech Republic (946/00) discussed at [20.66]. FAMILY UNITY AND MIGRATION

[21.35] The HRC has expressed concerns that States adopt sensitive rules regarding family reunification across borders for the sake of affected children.33 For example, regarding Canada, the HRC stated:34

33

See discussion of rights regarding family unity at [20.17]ff. (1999) UN doc CCPR/C/79/Add.105; see also Concluding Observations on Denmark (1996) UN doc CCPR/C/79/Add.68, para 19. See also Winata v Australia (930/00) [20.29]ff. 34

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¶15. The Committee remains concerned about Canada’s policy in relation to expulsion of long-term alien residents, without giving full consideration in all cases to the protection of all Covenant rights, in particular under articles 23 and 24.

[21.36]

EL-HICHOU v DENMARK (1554/07)

The complaint concerned the State Party’s failure to grant residency to a 17-year-old to reunite with his father, a Moroccan national with Danish residency. The father had been granted custody of his son in Morocco after the death of the boy’s maternal grandparents, who had been looking after him. The boy had joined his father in Denmark but had lived there illegally. Denmark argued that the author did not need a guardian at his age, and that he had much stronger ties to Morocco. The HRC found that Denmark had breached the author’s rights. ¶7.3. In the present case, it is not disputed by the State party that the author and his father have a family life, both before he joined his father in the State party’s territory and afterwards. The fact that the author has remained illegally in the territory of the State party does not influence the fact that he developed family ties not only with his father, but with his half-siblings and their mother. It is also undisputed that the author learned the local language and developed certain ties with the local culture and society. The Committee notes the State party’s submission that if the author was returned to his country of origin there was nothing to prevent him and his father from maintaining the same degree of family life they had before the author came to the State party. The Committee observes, however, that two important circumstances have changed. Firstly, already in the year 2000, the author’s maternal grandparents, who were his de facto caregivers during the first 10 years of his life, were deceased. Second, in 2003 the author’s mother transferred his custody to his father, a transfer recognized by the State party’s authorities, and the primary responsibility for his support and upbringing after that lie with his father. Considering the above circumstances, the Committee is not convinced that it would have been in the best interest of the author, when he originally requested to be allowed to reunite with his father, to continue to maintain a family life with his father limited to annual visits and financial support. ¶7.4. The Committee takes note of the State party’s argument that the initial separation of the author and his father were caused entirely by the decision of the latter to move to the State party and leave his son in his country of origin and that he made no attempts to reunite the author with his new family until he was 11 and a half years old. The Committee observes that the author’s parents were divorced, his mother obtained the custody of him after his birth and that for the first 10 years of his life the author was adequately cared for by his grandparents. The Committee also observes that when those circumstances changed, the author’s father started to make attempts to reunite with him in order to assume the role of a primary caregiver. The Committee also observes that at stake in the present case are the author’s rights as a minor to maintain a family life with his father and his half-siblings and to receive protection measures as required by his status as a minor. The Committee notes that the author cannot be held responsible for any decisions taken by his parents in relation to his custody, upbringing and residence. ¶7.5. In these very specific circumstances, the Committee considers that the decisions not to allow the reunification of the author and his father in the State party’s territory and the order to leave the State party, if implemented, would constitute interference with the family contrary to article 23 and a violation of article 24, paragraph 1 of the Covenant, due to a failure to provide the author with the necessary measures of protection as a minor.

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The ICCPR

The HRC found that Denmark had a duty to facilitate the reuniting of the son with his father in Denmark. This case may be distinguished from Rajan v New Zealand (820/98) [20.34] and Sahid v New Zealand (893/99) [20.33], which involved attempts by parents to reunite with their adult children, rather than a minor child wishing to reunite with his father. Also compare Winata v Australia (930/00) [20.29], where two parents successfully argued against their deportation away from their minor child. [21.37] In El Dernawi v Libyan Arab Jamahiriya (1143/02), the State Party refused to give passports to the author’s family in order to enable them to join him in exile in Switerland. That action breached a number of ICCPR rights, including the rights of his children under Article 24: ¶6.3. . . . in view of the advantage to a child’s development in living with both parents absent persuasive countervailing reasons, the Committee concludes that the State party’s action has failed to respect the special status of the children, and finds a violation of the rights of the children up to the age of eighteen years under article 24 of the Covenant. DUTY TO INTERVENE IN THE FAMILY ENVIRONMENT

[21.38] Whilst the family has primary responsibility for caring for children, circumstances regrettably arise where States Parties are required to intervene to protect the child from his/her own family. The main case on State-mandated separation of children from their parents is Buckle v New Zealand (858/99). This case is discussed at [20.38] as the HRC focuses in its reasoning more on article 23 rather than article 24. GENERAL COMMENT 17 ¶6. . . . Moreover, in cases where the parents and the family seriously fail in their duties, ill-treat or neglect the child, the State should intervene to restrict parental authority and the child may be separated from his family when circumstances so require. . . .

[21.39] When a child has been separated from his/her family, the State has a positive duty to provide suitable alternative care for that child. GENERAL COMMENT 17 ¶6. . . . The Committee considers it useful that reports by States parties should provide information on the special measures of protection adopted to protect children who are abandoned or deprived of their family environment in order to enable them to develop in conditions that most closely resemble those characterising the family environment.

Child Exploitation [21.40] It is incumbent upon States to protect children from being exploited by persons taking advantage of their inherent vulnerability.

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SEXUAL EXPLOITATION

[21.41] It is clear, as specified in paragraph 3 of General Comment 17 [21.15], that children require special protection from sexual and physical abuse.35 [21.42] The HRC has expressed concerns regarding Sri Lanka in this respect:36 ¶24. While the Committee welcomes the proposed changes to legislation for offences committed against children, such as incest and the sexual exploitation of children, it is concerned about the situation of the economic and sexual exploitation of children both with respect to the use of children in domestic service and the prostitution of boys.

The HRC has also stated the following with regard to Japan:37 ¶29. In light of information given by the State party on planned new legislation against child prostitution and child pornography, the Committee is concerned that such measures may not protect children under the age of 18 when the age limit for sexual consent is as low as 13.38 The Committee is also concerned about the absence of specific legal provisions prohibiting bringing of foreign children to Japan for the purpose of prostitution, despite the fact that abduction and sexual exploitation of children are subject to penal sanctions. The Committee recommends that the situation be brought into compliance with the State party’s obligations under articles 9, 17 and 24 of the Covenant.

Regarding Norway, the HRC has stated:39 ¶9. The Committee commends the State party for the new system which was implemented in 1998 with regard to the issue of questioning of child victims of sexual abuse in judicial proceedings . . .

[21.43] Child pornography is recognized as a heinous form of mistreatment and abuse of children worldwide. For example, regarding Belgium, the HRC has stated:40 ¶27. The Committee remains concerned about the production, sale and distribution of paedo-pornography. It urges the State party to take effective measures to curtail the possession and distribution of these criminal materials.

[21.44] Impoverished and/or abandoned children are often in particular danger of sexual abuse. For example, the HRC has stated with regard to Mexico:41 ¶15. The Committee also deplores the situation of street children, which is constantly worsening. These are the children who are at greatest risk of sexual violence and who are exposed to the practices of sexual trafficking. The State should take effective measures for the protection and rehabilitation of these children in accordance with article 24 of the Covenant, including measures to end prostitution, child pornography and the sale of children.

35

36 See also [10.11]–[10.12]. (1995) UN doc CCPR/C/79/Add.56. (1998) UN doc CCPR/C/79/Add.102. 38 This criticism was repeated in Concluding Observations on Japan (2008) UN doc CCPR/C/JPN/ CO/5, para 27. 39 40 (1999) UN doc CCPR/C/79/Add.112. (1998) UN doc CCPR/C/79/Add.99. 41 (1999) UN doc CCPR/C/79/Add.109. 37

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[21.45] Child sex tourism was highlighted as a concern regarding Costa Rica:42 ¶18. The Committee is deeply concerned at the high incidence of commercial sexual exploitation of children in Costa Rica, apparently often related to tourism. It notes the creation of a National Board for the Protection of the Child and amendments to the Criminal Code to criminalise the sexual exploitation of children. The Committee urges the State party to take further measures to eradicate this phenomenon, in cooperation as appropriate with other States, through the investigation and prosecution of the crimes in question.

[21.46] In May 2000, the General Assembly adopted the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography, which is obviously aimed at combating the evil of child sexual exploitation. This Optional Protocol came into force on 18 January 2002. CHILD LABOUR

[21.47] Child labourers are often denied proper payment for their work, and may be concurrently denied the opportunity to undertake education. Their physical and mental health and development may also be diminished.43 Whilst it is only implicitly condemned in General Comment 17, the HRC was more forthright in the following criticism of India:44 ¶34. The Committee expresses concern that, despite actions taken by the State party, there has been little progress in implementing the Child Labour (Prohibition and Regulation) Act of 1986. In this respect, the Committee recommends that urgent steps be taken to remove all children from hazardous occupations, that immediate steps be taken to implement the recommendation of the National Human Rights Commission that the constitutional requirement that it should be a fundamental right for all children under 14 to have free and compulsory education be respected, and that efforts be strengthened to eliminate child labour in both the industrial and rural sectors. The Committee also recommends that consideration be given to establishing an independent mechanism with effective national powers to monitor and enforce the implementation of laws for the eradication of child labour and bonded labour.

With regard to Ecuador, the HRC stated the following:45 ¶17. The Committee is also concerned that, despite the legal requirement of judicial authorisation for the employment of children under 14 years of age, there continues to be exploitation of children in employment. The Committee recommends that the Comité Nacional para la Eradicación Progresiva del Trabajo Infantil be provided with the necessary means to carry out its mandate to eliminate the practice of child labour. 42

(1999) UN doc CCPR/C/79/Add.107. See also Convention Concerning Minimum Age for Admission to Employment (ILO Convention 138), 26 June 1973 and Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst forms of Child Labour (ILO Convention 182), 17 June 1989. 44 (1997) UN doc CCPR/C/79/Add.81; see also Concluding Observations on Brazil (1996) UN doc CCPR/C/79/Add.66, para 31; United Republic of Tanzania (1998) UN doc CCPR/C/79/Add.97, para 25. 45 (1998) UN doc CCPR/C/79/Add.92. 43

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With regard to Turkmenistan, the HRC has expressed ‘concern over the reports of the use of children for cotton harvesting’, and recommended that the State ‘eliminate the use of children for cotton harvesting and ensure that children are protected from the harmful effects of all forms of child labour’.46 TRAFFICKING

[21.48] Children must be protected from the scourge of people trafficking. XHL v NETHERLANDS (1564/07) The author was a Chinese child who was trafficked into the Netherlands from the Ukraine at the age of 12. He sought asylum when he reached the Netherlands but was refused. He claimed his expulsion would breach article 24 in conjunction with article 7: ¶3.1. The author claims that the decision to return him to China violates article 7 of the Covenant because he would be subjected to inhumane treatment. He explains that, since he was only 12 when he left China, he does not have his own identity card or hukou registration. Without these, he cannot prove his identity or access orphanages, healthcare, education, or any other kind of social assistance in China. He notes that, given that he has no contact or family connections in China, he would be forced to beg in the streets.

As in Warsame v Somalia (1959/10) [8.74], the claim related less to likely specific persecution in the receiving State and more to the general circumtances of the author upon arrival in that State. The HRC found violations of article 24 in conjunction with article 7: ¶10.2. . . . In the present case, the Committee takes note of the author’s argument that, since he does not have an identity card or hukou registration, he is unable to prove his identity or access any social assistance services in China, and since he does not have any family or connection in the country, he would be forced to beg to survive. The Committee notes the State party’s argument to the effect that the author must have been registered in China but considers that it cannot be expected from an unaccompanied 12-year-old that he know his administrative obligations regarding notification to the relevant hukou administrative body. Moreover, it would have been unreasonable to demand from the author that he notify his residence in the Netherlands to the Chinese authorities given the fact that he was seeking asylum. The Committee notes that the author’s claim under article 7 is closely linked to his claim under article 24, namely, the treatment he may have been subjected to as a child had the deportation order been implemented at the time where it was adopted. Therefore, the Committee will examine both claims jointly. ¶10.3. With regard to the author’s claim that the State party did not take his best interest as a child into consideration when deciding on his return to China, the Committee notes that, from the deportation decision and from the State party’s submissions, it transpires that the State party failed to duly consider the extent of the hardship that the author would encounter if returned, especially given his young age at the time of the asylum process. The Committee 46 (2012) UN doc CCPR/C/TKM/CO/1/Add.1, para 20; see also Concluding Observations on Dominican Republic (2012) CCPR/C/DOM/CO/5, para 18.

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further notes that the State party failed to identify any family members or friends with whom the author could have been reunited in China. In light of this, the Committee rejects the State party’s statement that it would have been in the best interest of the author as a child to be returned to that country. The Committee concludes that, by deciding to return the author to China without a thorough examination of the potential treatment that the author may have been subjected to as a child with no identified relatives and no confirmed registration, the State party failed to provide him with the necessary measures of protection as a minor at that time. ¶11. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the State party’s decision to return the author to China violates his rights under article 24, in conjunction with article 7 of the Covenant.

[21.49] Unusually, the HRC found that the actual decision to expel breached article 24 in conjunction with article 7 [9.103], rather than that the execution of the decision would breach the ICCPR. This ‘novel jurisprudence’ was rejected by Sir Nigel Rodley and Mr Thelin in dissent. Mr Salvioli, in a concurring opinion, explained this line of reasoning: ¶8. . . . The current case does not have anything to do with possible cases of deportation to a place where a person might be tortured; in that type of case, it is logical to consider ratione temporis the possible violation at the moment that the ordered deportation occurs, since the violation depends on the circumstances that exist in the country to which the person is sent. ¶9. In this case, which has completely different characteristics, the violations of article 24 and article 7 of the Covenant were actually committed when the decision was taken by the State party (i.e., the decision gave rise to international responsibility), and this was fully understood by the Human Rights Committee.

Mr Salvioli went further and found a breach of article 24 alone. The decision itself was found by the majority and Salvioli to breach article 24 in conjunction with article 7 due to the cruelty inherent in the expulsion decision for the child victim of trafficking. Interestingly, the author was no longer a child by the time of the decision. The HRC recommended that his claim be re-examined, and the possibility of a residence permit be considered. It did not recommend the grant of a residence permit as the only possible remedy. KIDNAPPING

[21.50] Kidnapping and trafficking in children may take the form of questionable, illegal, or informal adoption practices. These may involve ‘sale’ of babies by impoverished parents, or outright theft of children.47 [21.51] Appropriate laws regarding guardianship and adoption of children are necessary to prevent kidnapping, as demonstrated by these HRC comments directed to Argentina:48 47 48

See also the Hague Convention on the Civil Aspects of International Child Abduction 1980. (1995) UN doc CCPR/C/79/Add.46.

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¶16. The Committee urges the State party to . . . complete urgently investigations into the allegations of illegal adoption of children of disappeared persons, and to take appropriate action. CHILD SOLDIERS

[21.52]

GENERAL COMMENT 17

¶3. . . . Moreover, the Committee wishes to draw the attention of States parties to the need to include in their reports information on measures adopted to ensure that children do not take a direct part in armed conflicts.

Even where children appear to volunteer for such duties it is often because they are in need of food, shelter, clothing, and even an identity, which mitigates against the ‘voluntariness’ of the participation. [21.53] The recruitment of child soldiers under the age of 15 is prohibited by article 38 of the CRC. It is also prohibited in international humanitarian law. Article 77(2) of Additional Protocol I to the Geneva Conventions prohibits the recruitment of soldiers under 15 years of age. The Rome Statute of the International Criminal Court, at article 8(2)(b)(xxvi), defines the recruitment or ‘use’ of soldiers under the age of 15 as a ‘war crime’. In June 2000, the UN adopted an Optional Protocol to the Convention on the Rights of the Child, designed to prohibit the recruitment into the armed forces of persons under the age of 18. This Protocol entered into force on 12 February 2002. [21.54] The HRC has articulated its concerns over child soldiers with regard to Colombia:49 ¶27. The Committee expresses its deep concern at the situation of children in Colombia and at the lack of adequate measures to protect their rights under the Covenant. In this respect, the Committee notes that much remains to be done to protect children from violence within the family and the society at large, from forced recruitment by guerrilla and paramilitary groups and from employment below the legal minimum age, and specifically to protect street children from being killed or otherwise abused by vigilante groups and security forces . . . ¶42. The Committee urges the Government to adopt effective measures to ensure the full implementation of article 24 of the Covenant, including preventive and punitive measures in respect of all acts of child murder and assault and protective, preventive and punitive measures in respect of children caught up in the activities of guerrilla and paramilitary groups. The Committee also specifically recommends that effective measures be taken to eliminate employment of children and that inspection mechanisms be established to this effect.

Regarding Sudan, the HRC has stated:50 ¶17. While noting efforts by the State party to eradicate the practice of forced recruitment of child soldiers, including the establishment of disarmament, demobilization and 49 (1997) UN doc CCPR/C/79/Add.76; see also Concluding Observations on the Republic of the Congo (2000) UN doc CCPR/C/79/Add.118, para 19. 50 (2007) UN doc CCPR/C/SDN/CO/3. See also Concluding Observations on Chad (2009) UN doc CCPR/C/TCD/CO/1, para 33.

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reintegration commissions, and the reference made by the State party to the disarmament, demobilization and reintegration commission website, the Committee remains concerned at the small number of children who have actually been demobilized. It also notes the statement by the State party that in the absence of a comprehensive civil register it is difficult to determine the exact ages of the people serving in its armed forces (articles 8 and 24 of the Covenant). The State party should put an end to all recruitment and use of child soldiers, and provide disarmament, demobilization and reintegration commissions with the human and financial resources they need to fulfil their mandates, in order to ensure the expertise required to demobilize child soldiers. The State party should also speed up its programme for the establishment of a civil register, and ensure that all births are registered throughout the country.

Right to Registration and a Name: Article 24(2) [21.55]

GENERAL COMMENT 17

¶7. Under article 24, paragraph 2, every child has the right to be registered immediately after birth and to have a name. In the Committee’s opinion, this provision should be interpreted as being closely linked to the provision concerning the right to special measures of protection and it is designed to promote recognition of the child’s legal personality. Providing for the right to have a name is of special importance in the case of children born out of wedlock. The main purpose of the obligation to register children after birth is to reduce the danger of abduction, sale of or traffic in children, or of other types of treatment that are incompatible with the enjoyment of the rights provided for in the Covenant. Reports by States parties should indicate in detail the measures that ensure the immediate registration of children born in their territory.

[21.56]

DE GALLICCHIO and VICARIO v ARGENTINA (400/90)

The facts are evident from the excerpts and commentary below: ¶2.1. On 5 February 1977, Ximena Vicario’s mother was taken with the then nine month-old child to the Headquarters of the Federal Police (Departamento Central de la Policía Federal) in Buenos Aires. Her father was apprehended in the city of Rosario on the following day. The parents subsequently disappeared, and although the National Commission on Disappeared Persons investigated their case after December 1983, their whereabouts were never established. Investigations initiated by the author herself finally led, in 1984, to locating Ximena Vicario, who was then residing in the home of a nurse, S.S., who claimed to have been taking care of the child after her birth. Genetic blood tests . . . revealed that the child was, with a probability of 99.82 per cent, the author’s granddaughter.

Part of the author’s complaint related to the circumstances of the child’s illegal adoption. These complaints were inadmissible ratione temporis. The following circumstances also prompted complaints: ¶2.3. On 2 January 1989, the author was granted ‘provisional’ guardianship of the child; S.S., however, immediately applied for visiting rights, which were granted by order of the Supreme Court on 5 September 1989. In this decision, the Supreme Court also held that

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the author had no standing in the proceedings about the child’s guardianship since, under article 19 of Law 10.903, only the parents and the legal guardian have standing and may directly participate in the proceedings. ¶2.4. On 23 September 1989 the author, basing herself on psychiatric reports concerning the effects of the visits of S.S. on Ximena Vicario, requested the court to rule that such visits should be discontinued. Her action was dismissed on account of lack of standing. . . . ¶3.1. . . . The fact that the author is denied standing in the guardianship proceedings is deemed to constitute a violation of the principle of equality before the law, as guaranteed by article 16 of the Argentine Constitution and articles 14 and 26 of the Covenant. ¶3.2. . . . The author also claims a violation of the rights of her granddaughter, who she contends is subjected to what may be termed psychological torture, in violation of article 7 of the Covenant, every time she is visited by S.S. Another alleged breach of the Covenant concerns article 16, under which every person has the right to recognition as a person before the law, with the right to an identity, a name and a family: that Ximena Vicario must continue to bear the name given to her by S.S. until legal proceedings are completed is said to constitute a violation of her right to an identity. Moreover, the uncertainty about her legal identity has prevented her from obtaining a passport under her real name.

The Committee’s findings were as follows: ¶10.3. As to Darwinia Rosa Mónaco de Gallicchio’s claim that her right to recognition as a person before the law was violated, the Committee notes that, although her standing to represent her granddaughter in the proceedings about the child’s guardianship was denied in 1989, the courts did recognise her standing to represent her granddaughter in a number of proceedings, including her suit to declare the nullity of the adoption, and that she was granted guardianship over Ximena Vicario. While these circumstances do not raise an issue under article 16 of the Covenant, the initial denial of Mrs Mónaco’s standing effectively left Ximena Vicario without adequate representation, thereby depriving her of the protection to which she was entitled as a minor. Taken together with the circumstances mentioned in paragraph 10.5 below, the denial of Mrs Mónaco’s standing constituted a violation of article 24 of the Covenant. . . .

The HRC deferred to domestic court findings regarding the ICCPR compatibility of the continued visits to the child of SS, which were in fact eventually terminated: ¶10.4. . . . As to the visiting rights initially granted to S.S., the Committee observes that the competent courts of Argentina first endeavoured to determine the facts and balance the human interests of the persons involved and that in connection with those investigations a number of measures were adopted to give redress to Ximena Vicario and her grandmother, including the termination of the regime of visiting rights accorded to S.S, following the recommendations of psychologists and Ximena Vicario’s own wishes. Nevertheless, these outcomes appear to have been delayed by the initial denial of standing of Mrs Mónaco to challenge the visitation order. ¶10.5. While the Committee appreciates the seriousness with which the Argentine courts endeavoured to redress the wrongs done to Ms. Vicario and her grandmother, it observes that the duration of the various judicial proceedings extended for over 10 years, and that some of the proceedings have not yet been completed. The Committee notes that in the

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meantime Ms. Vicario, who was 7 years of age when found, reached the age of maturity (18 years) in 1994, and that it was not until 1993 that her legal identity as Ximena Vicario was officially recognised. In the specific circumstances of this case, the Committee finds that the protection of children stipulated in article 24 of the Covenant required the State party to take affirmative action to grant Ms. Vicario prompt and effective relief from her predicament. In this context, the Committee recalls its General Comment on article 24, . . . in which it stressed that every child has a right to special measures of protection because of his/her status as a minor; those special measures are additional to the measures that States are required to take under article 2 to ensure that everyone enjoys the rights provided for in the Covenant. Bearing in mind the suffering already endured by Ms. Vicario, who lost both of her parents under tragic circumstances imputable to the State party, the Committee finds that the special measures required under article 24, paragraph 1, of the Covenant were not expeditiously applied by Argentina, and that the failure to recognise the standing of Mrs Mónaco in the guardianship and visitation proceedings and the delay in legally establishing Ms. Vicario’s real name and issuing identity papers also entailed a violation of article 24, paragraph 2, of the Covenant, which is designed to promote recognition of the child’s legal personality. ¶11.1. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts which have been placed before it reveal a violation by Argentina of article 24, paragraphs 1 and 2, of the Covenant.

[21.57] Regarding Honduras, the HRC has expressed the following concern:51 ¶18. The Committee takes note of the State party’s efforts to register all births. It regrets, however, the persistently high number of unregistered children, particularly in rural areas and indigenous communities (arts. 16, 24 and 27). The Committee recommends that the State party adopt the necessary programme and budgetary measures to ensure the registration of births and of unregistered adults.

Regarding Bosnia and Herzegovina, the HRC has stated:52 ¶22. The Committee is concerned about the frequent failure of health institutions to issue birth certificates for Roma children whose parents have no health insurance or other means to pay hospital fees, although this documentation is necessary for registering a child with the public authorities and for the child’s access to basic rights such as health insurance and education (arts. 16 and 24, para. 2). The State party should remove administrative obstacles and fees in order to ensure that all Roma are provided with personal documents, including birth certificates, which are necessary for them to have access to health insurance, social security, education and other basic rights.

[21.58] Concern over the proper legal recognition of a child’s name has been expressed by the HRC with regard to Romania:53

51

(2006) UN doc CCPR/C/HND/CO/1. (2006) UN doc CCPR/C/BIH/CO/1. See also Concluding Observations on the Dominican Republic (2012) CCPR/C/DOM/CO/5, para 23. 53 (1999) UN doc CCPR/C/79/Add.111. 52

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¶5. A matter of grave concern to the Committee is the situation of street children and abandoned children, an exceedingly serious problem which remains unresolved in Romania (art. 24). The State party should take all necessary measures to comply with article 24 of the Covenant, by protecting and rehabilitating these children, by guaranteeing them a name, and by ensuring that all births are duly registered in Romania.

[21.59] Regarding Uruguay, the HRC stated:54 ¶11. The Committee, while recognising the progress made by the State party in respect of children’s rights and in particular the future Code Relating to Minors (Codigo del Menor), remains concerned with the information provided by the delegation, that the future Code discriminates against female minors and fails to protect fully the new born child, as unmarried minor mothers may register their children at any age whereas minor fathers may only do so from the age of 16 onwards. The Committee urges the State party in the course of drafting this Code to bring the whole of it into full conformity with articles 3 and 24 of the Covenant. It wishes to receive the text of the Code when it is enacted.

[21.60] Thus, States Parties have an obligation to expedite recognition of a child’s proper name by the provision of verification documentation, in order to facilitate the formal acknowledgment of the child’s legal personality, in order to maximize access to legal entitlements and in order to minimize opportunities for egregious child exploitation.

Right to a Nationality: Article 24(3) [21.61]

GENERAL COMMENT 17

¶8. Special attention should also be paid, in the context of the protection to be granted to children, to the right of every child to acquire a nationality, as provided for in article 24, paragraph 3. While the purpose of this provision is to prevent a child from being afforded less protection by society and the State because he is stateless, it does not necessarily make it an obligation for States to give their nationality to every child born in their territory. However, States are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born. In this connection, no discrimination with regard to the acquisition of nationality should be admissible under internal law as between legitimate children and children born out of wedlock or of stateless parents or based on the nationality status of one or both of the parents. The measures adopted to ensure that children have a nationality should always be referred to in reports by States parties.55

For example, the HRC has condemned Zimbabwean laws which denied Zimbabwean citizenship to children born to Zimbabweans abroad.56 54 55 56

(1998) UN doc CCPR/C/79/Add.90. See also Concluding Observations on Kuwait (2000) UN doc CCPR/CO/69/KWT, para 31. (1998) UN doc CCPR/C/79/Add.89, para 19.

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[21.62] There is an obligation on States Parties to confer nationality on stateless children within their territory. Nowak argues that this obligation is subsidiary to obligations which may arise in another State Party, if the child has a filial or strong connection to that other State.57 This is supported by article 7(2) CRC. Furthermore, the HRC has stated, in Concluding Observations on Ecuador:58 ¶18. The Committee is concerned that the births of children born in Ecuador to undocumented refugees are frequently not registered due to the parents’ fear of deportation. This situation prevents the children from claiming Ecuadorian nationality, to which any child born in Ecuador is entitled under Ecuadorian law. The Committee recommends that the State party adopt measures guaranteeing to all children of undocumented refugees born in Ecuador the right to a nationality. The Committee recommends that the State party adopt measures guaranteeing to all children of undocumented refugees born in Ecuador the right to a nationality.

The HRC was more explicit regarding Colombia:59 ¶44. The Committee stresses the duty of the State party to ensure that every child born in Colombia enjoys the right, under article 24, paragraph 3, of the Covenant to acquire a nationality. It therefore recommends that the State party considers conferring Colombian nationality to stateless children born in Colombia.

Conclusion [21.63] Article 24 provides civil and political rights specifically to children, to top up the rights they receive, in common with adults, from other Covenant guarantees. The text of the CRC has undoubtedly influenced the HRC in its interpretation of article 24. The HRC has dealt with relatively few cases under article 24 outside the realm of children’s rights regarding parental access and family unity in a migration context. Indeed, article 24 and the CRC have opened up the family and its treatment of and responsibilities regarding children to public and international scrutiny.60 There is one case each on child trafficking and child registration. Its General Comment 17 and its Concluding Observations have clarified other important aspects of article 24 protection, such as the prohibition on child exploitation and guidelines for the age of majority.

57 M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005), 561–2. In such circumstances, it is indeed arguable that the child is ‘within the jurisdiction’ of that other State; see, generally, on jurisdictional requirements, Ch 4. Furthermore, Nowak questions the extent of this duty where the child has a filial or other claim to nationality against a State which is not party to the Covenant. 58 (1998) UN doc CCPR/C/79/Add.92. Similar comments were made regarding Colombia (1997) UN doc CCPR/C/79/Add.76, para 44. 59 (1997) UN doc CCPR/C/79/Add.75. 60 See R Levesque, ‘Sexual Use, Abuse, and Exploitation of Children: Challenges in Implementing Children’s Rights’ (1994) 60 Brooklyn Law Review 959 at 987–97.

22 Rights of Political Participation—Article 25 • Concept of Citizenship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Nature of the Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Article 25(a): General Right of Public Participation . . . . . . . . . . . . . . . • Indirect Participation in Public Affairs through Elected Representatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Direct Participation in Public Affairs . . . . . . . . . . . . . . . . . . . . . . . . . • Article 25(b): The Right to Vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Restrictions on the Right to Vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Opportunity to Vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Quality of Vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Article 25(b): Right to Stand for Election . . . . . . . . . . . . . . . . . . . . . . . • Article 25(b): Periodic Genuine Elections Expressing the Will of the Electors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Secret Ballot. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Influence of Political Parties and the Media . . . . . . . . . . . . . . . . . . . • Automated Voting Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Article 25(c): Equal Access to the Public Service . . . . . . . . . . . . . . . . . • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[22.02] [22.05] [22.07] [22.12] [22.16] [22.24] [22.25] [22.33] [22.35] [22.41] [22.50] [22.55] [22.56] [22.60] [22.61] [22.75]

ARTICLE 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.

[22.01] Article 25 guarantees rights of political participation to citizens of States Parties. Article 25(a) provides a general formulation of the right, and guarantees some democratic accountability on the part of State Party governments.1 Article 25(b) and (c) relates to specific aspects of political participation, the right to vote and to be elected in genuine elections, and the right of access to the public service.

1 M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005), 570–1.

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Concept of Citizenship [22.02] Article 25 rights are confined to a State Party’s citizens. This contrasts with the other International Covenant on Civil and Political Rights (ICCPR), which are conferred on all people within a State Party’s jurisdiction. GENERAL COMMENT 25 ¶3. . . . State reports should outline the legal provisions which define citizenship in the context of the rights protected by article 25. No distinctions are permitted between citizens in the enjoyment of these rights on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Distinctions between those who are entitled to citizenship by birth and those who acquire it by naturalisation may raise questions of compatibility with article 25.

[22.03] The Covenant does not therefore prescribe how a State determines citizenship, though it does prohibit discrimination in such determination. The Human Rights Committee (HRC) has also indicated, with regard to Estonia, that citizenship requirements should not be too onerous:2 ¶12. The Committee expresses its concern that a significantly large segment of the population, particularly members of the Russian-speaking minority, are unable to enjoy Estonian citizenship due to the plethora of criteria established by law, and the stringency of language criterion, and that no remedy is available against an administrative decision rejecting the request for naturalization under the Citizenship Law.3

[22.04] The HRC went on in its General Comment to concede that municipal rights of political participation can be conferred on non-citizens: ¶3. . . . State reports should indicate whether any groups, such as permanent residents, enjoy these rights on a limited basis, for example, by having the right to vote in local elections or to hold particular public service positions.

Non-citizen rights of political participation should not be conferred on a discriminatory basis. Although such conferral would not be prohibited by article 25, which protects only ‘citizens’, it would be prohibited by the Covenant’s general non-discrimination provisions.

Nature of the Right [22.05]

DIERGAARDT v NAMIBIA (760/97)

The authors represented an ethnic minority within Namibia, the Rehoboth Basters. 2

(1995) UN doc CCPR/C/79/Add.59, para 12. See also Concluding Observations on Russia (2009) UN doc CCPR/C/RUS/CO/6, para 9 [23.31]. 3

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729

¶2.1. The members of the Rehoboth Baster Community are descendants of indigenous Khoi and Afrikaans settlers who originally lived in the Cape, but moved to their present territory in 1872. They were governed by their ‘paternal laws’, which provided for the election of a Captain, and for rights and duties of citizens. At present, the community numbers some 35,000 people and the area they occupy (south of Windhoek) has a surface of 14,216 square kilometres. In this area the Basters developed their own society, culture, language and economy, with which they largely sustained their own institutions, such as schools and community centres. . . .

In 1976, the Rehoboth Basters were granted self-government within the territory of Namibia by South Africa, which was effectively in control of that territory. ¶2.4. According to counsel, in 1989, the Rehoboth Basters accepted under extreme political pressure, the temporary transfer of their legislative and executive powers into the person of the Administrator-General of South West Africa, so as to comply with UN Security Council resolution nr. 435 (1978). In the motion, adopted by the Council of Rehoboth on 30 June 1989, the Administrator General was requested to administer the territory as an agent of the Captain and not to make any law or regulation applicable to Rehoboth without consent of the Captain, the Cabinet and the Council; at the end of the mandate the Government of Rehoboth would resume authority. The proclamation by the Administrator-General on the transfer of powers of legislative authority and government of Rehoboth, of 30 August 1989, suspends the powers of the Legislative Council and the Captain’s Council of Rehoboth ‘until the date immediately before the date upon which the territory becomes independent’. It is therefore submitted that the effect of this transfer expired on the day before independence of Namibia, and that thus on 20 March 1990, the traditional legal order and Law 56 of 1976 were in force on the territory of Rehoboth. A resolution restoring the power of the Captain, his Council and the legislative Council was adopted by the Rehoboth People’s Assembly on 20 March 1990. On 21 March 1990, Namibia became independent, and the Constitution came into force.

Thus, according to the Rehoboth Baster legislature (the Council of Rehoboth), the Rehoboth people regained full independence within Namibia the day before Namibia itself gained independence in 1990. ¶2.5. The authors submit that the Government of Namibia did not recognize their independence and the return to the status quo ante, but expropriated all communal land of the community through application of schedule 5 of the Constitution. . . . ¶3.2. In this context, the authors claim to be victims of a violation by the Government of Namibia of article 1 of the Covenant. They point out that the Namibian High Court has recognised them as a distinct community with a legal basis [in a legal action concerning the alleged expropriation of their land] [24.25]. They claim that their right to self-determination inside the republic of Namibia (so-called internal self-determination) has been violated, since they are not allowed to pursue their economic social and cultural development, nor are they allowed to freely dispose of their community’s national wealth and resources. By enactment of the law on regional government 1996, the 124 year long existence of Rehoboth as a continuously organised territory was brought to an end. The territory is now divided over two regions, thus preventing the Basters from effectively participating in public life on a regional basis, since they are a minority in both new districts. Counsel claims that this constitutes a violation of article 25 of the Covenant.

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The authors’ claim under article 1 was dismissed as non-justiciable under the OP because the rights therein are conferred on peoples rather than individuals, only the latter having rights under the OP [7.24]. On article 25, the HRC found in favour of the State Party: ¶10.8. The authors have also claimed that the termination of self-government for their community and the division of the land into two districts which were themselves amalgamated in larger regions have split up the Baster community and turned it into a minority with an adverse impact on the rights under Article 25(a) and (c) of the Covenant. The right under Article 25(a) is a right to take part in the conduct of public affairs directly or through freely chosen representatives and the right under Article 25(c) is a right to have equal access, on general terms of equality, to public service in one’s country. These are individual rights. Although it may very well be that the influence of the Baster community, as a community, on public life has been affected by the merger of their region with other regions when Namibia became sovereign, the claim that this has had an adverse effect on the enjoyment by individual members of the community of the right to take part in the conduct of public affairs or to have access, on general terms of equality with other citizens of their country, to public service has not been substantiated. The Committee finds therefore that the facts before it do not show that there has been a violation of article 25 in this regard.

The Diergaardt decision reinforces the individual nature of the article 25 right. The authors could not prove that the probable reduction in the political power of their group reduced their effective political rights as individuals under article 25, seeing as each individual technically enjoyed the same political rights as other individuals (from other ethnic groups) within Namibia [7.25]. [22.06] It is very likely that the HRC was influenced in its decision by the circumstances surrounding Namibia’s emergence as an independent State. Indeed, South Africa’s control over that territory was found to be illegal by the International Court of Justice,4 a fact not noted by the authors in their complaint. The HRC was very unlikely to uphold political rights conferred on peoples by the South African apartheid regime during its illegal annexation of Namibia. This fact was alluded to by Mr Lallah in a separate opinion: ¶9. The real complaint of the authors with regard to Article 26 [23.61], when seen in the context of their other complaints [including that under article 25],5 would suggest that they still hanker after the privileged and exclusive status they previously enjoyed in matters of occupation of land, self-government and use of language under a system of fragmented self-governments which apartheid permitted. Such a system no longer avails under the unified nation which the Constitution of their country has created.

Article 25(a): General Right of Public Participation [22.07]

GENERAL COMMENT 25

¶1. . . . Article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant . . . 4 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276, Advisory Opinion, ICJ Rep 1971, 16. 5 The authors also made an unsuccessful complaint under art 27: see [24.25].

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¶5. The conduct of public affairs, referred to in paragraph (a), is a broad concept which relates to the exercise of political power, in particular the exercise of legislative, executive and administrative powers. It covers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels. The allocation of powers and the means by which individual citizens exercise the right to participate in the conduct of public affairs protected by article 25 should be established by the constitution and other laws. . . .

[22.08] The General Comment confirms that article 25(a) does not presuppose any particular system of government, so long as the State Party functions as a democracy. Indeed, the modalities of distribution of power and citizens’ rights of political participation must be ‘established by the constitution and other laws’; article 25 does not strictly dictate the content of those laws. Numerous political systems seem compatible with article 25(a),6 including Westminster systems, ‘presidential’ systems, bicameral systems, unicameral systems, unitary systems, and federal systems. [22.09]

COSTA v SPAIN (1745/07)

In this case, the author complained that he was unable to be elected to a position within the Spanish monarchy. The HRC found the communication to be inadmissible: ¶3.2. The Committee recalls that the right to take part in the conduct of public affairs directly or through freely chosen representatives referred to in article 25, paragraph (a), of the Covenant relates to the exercise of political power. However, this article does not impose a specific political model or structure. The Committee notes, in particular, that a constitutional monarchy based on separation of powers is not in itself contrary to article 25 of the Covenant. While article 25, paragraph (a), alludes to the election of representatives, paragraph (b) of the same provision, while guaranteeing the right to vote and to be elected at genuine periodic elections, does not grant a right to elect a head of State or to be elected to such position. Therefore, the Committee considers that the author’s complaint is incompatible ratione materiae with the provisions of the Covenant and declares it inadmissible under article 3 of the Optional Protocol. The same is true for the author’s allegations under article 2, paragraph 3, of the Covenant. The Committee recalls that the rights referred to in this provision are accessory in nature and can be invoked only in conjunction with another provision of the Covenant.

[22.10] In Arenz et al v Germany (1138/02), the Scientologist authors were expelled from the Christian Democratic Union (CDU), one of Germany’s major political parties, after the party passed a resolution deeming Scientology to be incompatible with party membership. The authors claimed that the expulsion, which was confirmed as legal by Germany courts, breached articles 18 [17.24], 22 [19.33], and 25(a). The communication was found to be inadmissible, as the HRC found that the court’s decisions were not arbitrary, and it was fair for those courts to uphold the political party’s autonomy over the rights of the authors. Therefore, in this case, the party’s rights of association trumped the right of the authors to 6 See H Steiner, ‘Political Participation as a Human Right’ (1988) 1 Harvard Human Rights Yearbook 77, 87.

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participate in a major political party. The HRC implicitly found that the expulsion of the authors on the basis of their religion was justified or at least justifiable. One wonders if the same decision would have been made if the authors had belonged to a more recognized mainstream religion.7 [22.11] The General Comment confirms that ‘the conduct of public affairs’ is a wide concept, which embraces the exercise of governmental power by all arms of government at all levels. ‘The conduct of public affairs’ includes, for example, the formulation by central governments of policies regarding defence and foreign affairs, as well as a local council’s decisions regarding the frequency of garbage collection. INDIRECT PARTICIPATION IN PUBLIC AFFAIRS THROUGH ELECTED REPRESENTATIVES

[22.12] Article 25(a) specifies that participation in public affairs may be direct or indirect, through elected representatives. Due to the complexity of modern government, it is virtually impossible for any contemporary State Party to govern solely or even substantially via direct input from citizens. Therefore, article 25(a) effectively dictates that all States Parties provide appropriate avenues for indirect political participation. [22.13]

GENERAL COMMENT 25

¶7. Where citizens participate in the conduct of public affairs through freely chosen representatives, it is implicit in article 25 that those representatives do in fact exercise governmental power and that they are accountable through the electoral process for their exercise of that power. It is also implicit that the representatives exercise only those powers which are allocated to them in accordance with constitutional provisions. Participation through freely chosen representatives is exercised through voting processes which must be established by laws which are in accordance with paragraph (b).

Therefore, article 25(a) requires State Party governments to be, in some way, accountable to their citizens.8 Autocracies, which offer no opportunities for political participation by citizens, do not satisfy paragraph (a).9 This point is confirmed by the opening paragraph of the General Comment [22.07]. [22.14] The body or bodies elected by the people must ‘in fact exercise governmental power’; the elected body cannot be a mere advisory body with no legally enforceable powers. The popularly elected body must either itself play a vital role in governing the State or be in control of that body.10 For example, Westminster 7 One may note that the HRC has expressed concern to Germany over the disqualification of some people from the public service on religious grounds: Concluding Observations on Germany (2004) UN doc CCPR/CO/80/DEU, para 19. 8 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 570. 9 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 570. 10 See S Joseph, ‘Rights of Political Participation’, in D Harris and S Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (Clarendon Press, 1995), 543.

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systems, where the elected legislature itself elects and ultimately controls the executive government, comply with article 25. However, Nowak has noted that it may be difficult to measure the extent of real control exercised by the elected body.11 For example, in practice in Westminster systems, the executive government, comprising the governing party’s leaders, often dominates the legislature if it has a sufficient majority. It does not seem that article 25 is a sufficiently sophisticated mechanism to redress many of the structural flaws in contemporary political systems.12 [22.15] Furthermore, undemocratic institutions should not have significant political power. For example, the HRC noted in Concluding Observations on Chile, with regard to Chile’s appointed Senate:13 ¶8. The Committee is deeply concerned by the enclaves of power retained by members of the former military regime. The powers accorded to the Senate to block initiatives adopted by the Congress and powers exercised by the National Security Council, which exists alongside the Government, are incompatible with article 25 of the Covenant. The composition of the Senate also impedes legal reforms that would enable the State party to comply more fully with its Covenant obligations. DIRECT PARTICIPATION IN PUBLIC AFFAIRS

[22.16]

MARSHALL v CANADA (205/86)14

The authors were representatives of the Mikmaq Indian tribe. The facts and the complaint are outlined immediately below: ¶2.2. By Constitution Act, 1982, the Government of Canada ‘recognised and affirmed’ the ‘existing aboriginal and treaty rights of the aboriginal peoples of Canada’ (art. 35(1)), comprising the Indian, Inuit and Métis peoples of Canada (art. 35(2)). With a view to further identifying and clarifying these rights, the Constitution Act envisaged a process which would include a constitutional conference to be convened by the Prime Minister of Canada and attended by the first ministers of the provinces and invited ‘representatives of the aboriginal peoples of Canada’. The Government of Canada and the provincial governments committed themselves to the principle that discussions would take place at such a conference before any constitutional amendments would be made and included in the Constitution of Canada in respect of matters that directly affect the aboriginal peoples, including the identification and the definition of the rights of those peoples (articles 35(1) and 37(1) and (2)). In fact, several such conferences were convened by the Prime Minister of Canada in the following years, to which he invited representatives of four national associations to represent the interest of approximately 600 aboriginal groups. These national associations were: the Assembly of First Nations (invited to represent primarily non-status Indians), the Métis National Council (invited to represent the Métis) and the Inuit Committee on National Issues (invited to represent the Inuit). As a general rule, constitutional conferences in Canada are attended only by elected leaders of the federal and provincial governments. The conferences on aboriginal matters constituted an exception Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 590–2. See also [22.54] and [22.59]. (1999) UN doc CCPR/C/79/Add.104. 14 Also known as Mikmaq Tribal Society v Canada. 11 12 13

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to that rule. They focused on the matter of aboriginal self-government and whether and in what form, a general aboriginal right to self-government should be entrenched in the Constitution of Canada. . . .

The complaint: ¶3.1. The authors sought, unsuccessfully, to be invited to attend the constitutional conferences as representatives of the Mikmaq people. The refusal of the State party to permit specific representation for the Mikmaqs at the constitutional conferences is the basis of the complaint. . . . ¶4.2. The authors contend, inter alia, that the restrictions [on participation in the conference] were unreasonable and that their interests were not properly represented at the constitutional conferences. First, they stress that they could not choose which of the ‘national associations’ would represent them, and, furthermore, that they did not confer on the Assembly of First Nations (AFN) any right to represent them. Secondly, when the Mikmaqs were not allowed direct representation, they attempted, without success, to influence the AFN. In particular, they refer to a 1987 hearing conducted jointly by the AFN and several Canadian Government departments, at which Mikmaq leaders submitted a package of constitutional proposals and protested ‘in the strongest terms any discussion of Mikmaq treaties at the constitutional conferences in the absence of direct Mikmaq representation’. The AFN, however, did not submit any of the Mikmaq position papers to the constitutional conferences nor incorporate them in its own positions.

In response, the State Party submitted that article 25 ‘could not possibly require that all citizens of a country be invited to a constitutional conference’.15 The HRC decided in favour of the State Party: ¶5.2. At issue in the present case is whether . . . the authors, or any other representatives chosen for that purpose by the Mikmaq tribal society, had the right, by virtue of article 25(a), to attend the conferences. . . . ¶5.4. It remains to be determined what is the scope of the right of every citizen, without unreasonable restrictions, to take part in the conduct of public affairs, directly or through freely chosen representatives. Surely, it cannot be the meaning of article 25(a) of the Covenant that every citizen may determine either to take part directly in the conduct of public affairs or to leave it to freely chosen representatives. It is for the legal and constitutional system of the State party to provide for the modalities of such participation. ¶5.5. It must be beyond dispute that the conduct of public affairs in a democratic State is the task of representatives of the people, elected for that purpose, and public officials appointed in accordance with the law. Invariably, the conduct of public affairs affects the interests of large segments of the population or even the population as a whole, while in other instances it affects more directly the interests of more specific groups of society. Although prior consultations, such as public hearings or consultations with the most interested groups may often be envisaged by law or have evolved as public policy in the conduct of public affairs, article 25(a) of the Covenant cannot be understood as meaning that any directly affected group, large or small, has the unconditional right to choose the modalities of participation in the conduct of public affairs. That, in fact, would be an extrapolation of the right to direct participation by the citizens, far beyond the scope of article 25(a). 15

At para 4.1.

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¶6. Notwithstanding the right of every citizen to take part in the conduct of public affairs without discrimination and without unreasonable restrictions, the Committee concludes that, in the specific circumstances of the present case, the failure of the State party to invite representatives of the Mikmaq tribal society to the constitutional conferences on aboriginal matters, which constituted conduct of public affairs, did not infringe that right of the authors or other members of the Mikmaq tribal society. Moreover, in the view of the Committee, the participation and representation at these conferences have not been subjected to unreasonable restrictions. Accordingly, the Committee is of the view that the communication does not disclose a violation of article 25 or any other provisions of the Covenant.

The Marshall decision appears to confirm that article 25 does not guarantee a citizen a right of direct participation in public affairs, beyond the specific instances mentioned in article 25(b) and (c).16 [22.17]

BEYDON et al v FRANCE (1400/05)

The authors were members of a non-government organization which had campaigned for the establishment of an international criminal court. The complaint related to France’s decision to ratify the Statute of the International Criminal Court with a reservation precluding the court’s jurisdiction over war crimes for seven years. They claimed that the decision breached their rights under article 25(a). The HRC found the communication inadmissible: ¶4.5. The Committee has further noted the authors’ claim under article 25 (a), that they were deprived, by the State party, of their right and opportunity to take part in the conduct of public affairs relating to the negotiations, and subsequent adhesion of France to the ICC Statute with a declaration under article 124 limiting the State party’s responsibility, the Committee recalls that citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves. In the present case, the authors have participated in the public debate in France on the issue of its adhesion to the ICC and on the issue of article 124 declaration; they acted through elected representatives and through their association’s actions. In the circumstances, the Committee considers that the authors have failed to substantiate, for purposes of admissibility, that their right to take part in the conduct of public affairs has been violated. Accordingly, this part of the communication is inadmissible under article 2 of the Optional Protocol.

[22.18]

BRUN v FRANCE (1453/06)

This case concerned a complaint over France’s decision to permit a company to conduct open-field testing of genetically modified organisms. The author had claimed that the decision breached article 25(a). He argued: ¶5.3. On the Committee’s competence ratione materiae in respect of article 25, the author stresses that citizens did not have an effective and efficient remedy to prevent the threats

16 See M Turpel, ‘Indigenous Peoples and Rights of Political Participation and Self-Determination: Recent International Legal Developments and the Continuing Struggle for Recognition’ (1992) 25 Cornell International Law Journal 579, 596; see also Joseph, ‘Rights of Political Participation’, 539. However, see [22.19].

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posed by the GMO open-field trials to the environment and public health. He asserts that article 25 (a) contains a procedural obligation inherent in the guaranteed right to ensure participation in the decision-making process, and that this procedural obligation implies the rights to information, to participation and to appropriate remedies. He points out that at the time of the events in question he did not have the means of obtaining useful and relevant information to enable him to participate in the decision-making process conducted by the public authorities with a view to authorizing the open-field sowing of GMO crops. It is in this sense that article 25 was violated, for the public authorities did not allow the author to participate in the environmental decision-making process. The author maintains that the public authorities did not produce the required prior assessments and did not inform the public of the possible dangers of the dissemination of GMOs in the open field. The Council of State recently revoked a decision of the Ministry of Agriculture authorizing the deliberate sowing of transgenic maize on the ground that the technical file, which ought to have contained all relevant information for assessing the impact of the tests on public health and the environment, was not in order. He believes therefore that he is fully justified in invoking article 25 (a) in conjunction with article 2, paragraphs 3 (a) and (b).

The HRC rejected the contention that article 25(a) was as rigorous as claimed by the authors in similar terms to its decision in Beydon: ¶6.4. The Committee notes the author’s complaint under article 25 (a) of the Covenant to the effect that the State party denied him the right and the opportunity to participate in the conduct of public affairs with regard to the cultivation of transgenic plants in the open field. The Committee points out that citizens also take part in the conduct of public affairs by bringing their influence to bear through the public debate and the dialogue with their elected representatives, as well as through their capacity to form associations. In the present case the author participated in the public debate in France on the issue of the cultivation of transgenic plants in the open field; he did this through his elected representatives and through the activities of an association. In these circumstances the Committee considers that the author has failed to substantiate, for purposes of admissibility, the allegation that his right to take part in the conduct of public affairs was violated. This part of the communication is therefore inadmissible . . .

[22.19] In General Comment 23, the HRC extrapolated on the minority rights provision in article 27. In paragraph 7 therein [24.22], the HRC recognizes that in addition to the duty to protect minority cultural activities, States must also adopt ‘measures to ensure the effective participation of members of minority communities in decisions which affect them’. Interpretations of this phrase in Länsman v Finland (511/92)17 and Länsman et al v Finland (671/95)18 indicate that minorities, including indigenous peoples, do have rights of direct participation in decisions which may impact on their traditional culture. In Poma Poma v Peru (1457/06) [24.37], the HRC went further in saying that: ¶7.6. In the Committee’s view, the admissibility of measures which substantially compromise or interfere with the culturally significant economic activities of a minority or indigenous community depends on whether the members of the community in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy. The

17

At paras 9.5 and 9.6 [24.29].

18

At paras 10.4 and 10.5 [24.31].

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Committee considers that participation in the decision-making process must be effective, which requires not mere consultation but the free, prior and informed consent of the members of the community.

[22.20] These decisions post-date Marshall, and appear to signal a retreat from the conservative position therein adopted. Direct rights of participation may perhaps therefore be derived from article 27, if not article 25 [24.35]. Note also, in this regard, this comment by the HRC in regard to Sweden:19 ¶15. The Committee is concerned at the limited extent to which the Sami Parliament can have a significant role in the decision-making process on issues affecting the traditional lands and economic activities of the indigenous Sami people, such as projects in the fields of hydroelectricity, mining and forestry, as well as the privatization of land. . . .

[22.21]

GENERAL COMMENT 25

In the General Comment, the HRC noted that there are various ways in which a State may provide avenues of direct participation for citizens beyond those compulsorily prescribed in article 25(b) and (c): ¶6. Citizens participate directly in the conduct of public affairs when they exercise power as members of legislative bodies or by holding executive office. This right of direct participation is supported by paragraph (b). Citizens also participate directly in the conduct of public affairs when they choose or change their constitution or decide public issues through a referendum or other electoral process conducted in accordance with paragraph (b). Citizens may participate directly by taking part in popular assemblies which have the power to make decisions about local issues or about the affairs of a particular community and in bodies established to represent citizens in consultation with government. . . . ¶8. Citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organise themselves. This participation is supported by ensuring freedom of expression, assembly and association.

[22.22] Though a State Party may not be obliged to provide particular modes of direct political participation under article 25, it incurs obligations if it does in fact provide extra avenues of direct political participation. As noted in General Comment 25: ¶6. Where a mode of direct participation by citizens is established, no distinction should be made between citizens as regards their participation on the grounds mentioned in article 2, paragraph 1, and no unreasonable restrictions should be imposed.

[22.23] The General Comment fails to mention one of the biggest threats to the right of political participation: corruption. Corrupt political processes systematically deny persons the right, on a fair and equal basis, to take part in public affairs. In order fully to comply with article 25, a State Party must take measures to prevent and punish instances of corruption and bribery.20 19 20

Concluding Observations on Sweden (2002) UN doc CCPR/CO/74/SWE. See also [25.06].

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Article 25(b): The Right to Vote [22.24] In Concluding Observations on the Republic of Iran, the HRC outlined numerous problems regarding its implementation of Article 25(b):21 ¶29. The Committee is concerned about the requirements for registration in election campaigns (in particular article 28, sections 1 and 3, of the Majlis Elections Act), and the right of the Guardian Council to reject parliamentary candidates (in accordance with article 3 of the Amendment to the Majlis Elections Act). The Committee notes with concern that with regard to the 10th presidential election in 2009: (1) only four candidates were approved out of more than 450 prospective candidates; (2) international observers were not allowed entry to monitor the election results; (3) cell phone signals and access to social networking and opposition websites were blocked; (4) political activists, members of the country’s religious and ethnic minority communities, students, trade unionists and women’s rights activists were harassed and arbitrarily detained; (5) election results were approved by Ayatollah Khamenei before certification by the Guardian Council; and (6) two provinces showed a turnout of more than 100 per cent. The Committee also notes with concern the arrest of dozens of political opposition members in February 2011 as well as the dissolution by court order of two pro-reform political parties (art. 25). RESTRICTIONS ON THE RIGHT TO VOTE

[22.25]

GENERAL COMMENT 25

¶4. Any conditions which apply to the exercise of the rights protected by article 25 should be based on reasonable and objective criteria. For example, it may be reasonable to require a higher age for election or appointment to particular offices than for exercising the right to vote, which should be available to every adult citizen. The exercise of these rights by citizens may not be suspended or excluded except on grounds which are established by law and which are objective and reasonable. For example, established mental incapacity may be a ground for denying a person the right to vote or hold office. . . . ¶10. The right to vote at elections and referenda must be established by law and may be subject only to reasonable restrictions, such as setting a minimum age limit for the right to vote. It is unreasonable to restrict the right to vote on the ground of physical disability or to impose literacy, educational or property requirements. Party membership should not be a condition of eligibility to vote, nor a ground of disqualification. ¶14. In their reports, States parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote. The grounds for such deprivation should be objective and reasonable. If conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.

[22.26] In Concluding Observations on Colombia, the HRC expressed concern over ‘the difficulties experienced by internally displaced persons in exercising their civic rights, including the right to vote’.22 21

(2011) UN doc CCPR/C/IRN/CO/3.

22

(2004) UN doc CCPR/CO/80/COL, para 19.

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YEVDOKIMOV and REZANO v RUSSIA (1410/05)

The complaint concerned Russia’s total ban on voting for all persons convicted and sentenced to terms of imprisonment while they served their sentences. Russia attempted to justify its measures thus: ¶4.3. In the Russian Federation, the rights of persons deprived of their liberty by court sentence to vote and to be elected are limited by the Constitution. Criminal punishment is the strictest form of legal responsibility, which amounts to withdrawal and restrictions of rights and freedoms of convicted persons. Under section 55, paragraph 3, of the Constitution the rights and freedoms of persons and citizens can be restricted by federal laws to the extent necessary for the protection of constitutional order, morality, health, rights and lawful interests of others, and the country’s security. Execution of sentences is linked to the temporary restrictions on such rights as right to freedom of movement, freedom of communication, right to privacy, including personal privacy and privacy of correspondence. Withdrawal of such rights and their restrictions are determined by the Constitution, criminal, criminal procedure and other legislation. As such, under section 32, paragraph 3, of the Constitution, persons deprived of liberty under court sentence do not have a right to vote or to be elected. The said provision of the Constitution is established to avoid abuse of rights and freedoms and such a limitation to the right of the persons deprived of their liberty by court sentence does not intervene with the principle of equality. ¶4.4. The present case does not concern a violation of the right by the state, but the required temporary limitation to the right of a certain category of persons, isolated from the society for acting against the interests of society. Therefore, the limitation under section 32 of the Constitution, is temporary, as the rights are restored upon the completion of the prison term. This provision is therefore in full compliance with the international norms on human rights.

The HRC found violations of article 25(b): ¶7.4. The Committee recalls its General Comment No. 25 which states that the right to vote and to be elected is not an absolute right, and that the restrictions may be imposed on it provided they are not discriminatory or unreasonable. It also states that if conviction for an offence is a basis for suspending the right to vote, the period for such suspension should be proportionate to the offence and the sentence. The Committee notes that, in the present case, the deprivation of the right to vote is coextensive with any prison sentence and recalls that, according to article 10, paragraph 3 of the Covenant, the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. It also recalls the United Nations Basic Principles for the Treatment of Prisoners. Principle 5 indicates that ‘except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party ( . . . ) the International Covenant on Civil and Political Rights ( . . . )’. ¶7.5. . . . The Committee notes that the State party, whose legislation provides a blanket deprivation of the right to vote to anyone sentenced to a term of imprisonment, did not provide any arguments as to how the restrictions in this particular case would meet the criterion of reasonableness as required by the Covenant. In the circumstances, the Committee concludes there has been a violation of article 25 alone and in conjunction with article 2,

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paragraph 3, of the Covenant. Having come to this conclusion, the Committee does not need to address the claim regarding the violation of article 2, paragraph 1 of the Covenant.

[22.28] Two members of the Committee, Messr Thelin and O’Flaherty, dissented in the following terms: The majority has found a violation in the present case. We respectfully disagree. In our view the reasoning and the disposition of the majority from paragraph 7.4 and onward is flawed. General Comment 25 states that the right to vote and to be elected is not an absolute right and that restrictions may be imposed on it, provided they are not discriminatory or unreasonable. It also states that if conviction for an offence is a basis for suspending the right to vote, the period for such suspension should be proportionate to the offence and the sentence. The norm which follows from General Comment 25 should be used in interpreting whether a violation of the Covenant has occurred in the case before us, instead of some form of extended proportionality test, as might be inferred from the European Court of Human Rights in the case Hirst v. United Kingdom and which seemingly has inspired the majority. In the circumstances of the present case, where the authors were found guilty of abuse of power and of organizing a criminal group dealing with drugs, kidnapping and racketeering, we consider that the restriction, which is limited only to the duration of the prison sentence, cannot be considered unreasonable or disproportionate. In such circumstances, we cannot conclude there has been a violation of article 25 either alone or in conjunction with, article 2, paragraphs 1 and 3, of the Covenant.

[22.29] Two other members, Mr Neuman and Ms Antoanella Motoc, concurred in a separate opinion. They found that the blanket ban on prisoner voting was unreasonable, and took no position on whether different narrower legislation might reasonably deprive the two authors of their rights to vote, given their serious crimes and sentences. The upshot of this case is that States may not impose blanket legislation which prohibits the rights to vote of all prisoners.23 However, it is likely that States can prohibit certain prisoners from voting, that is those convicted of crimes that reach a certain level of severity. That level of severity was not identified in this case. [22.30] The deprivation of all political rights, including the right to vote, for a period of 15 years to members of opposition parties was found to breach article 25 in Landinelli Silva v Uruguay (34/78) and Pietraroia v Uruguay (44/79). The HRC has also labelled restrictions on voting for students of military schools as violations of article 25.24 [22.31] As noted above, in Costa v Spain (1745/07), there is no requirement under article 25(b) that a person be permitted to vote for the monarchy in a State governed by a constitutional monarchy with a proper separation of powers. 23 See also Concluding Observations on the United States (2006) UN doc CCPR/C/USA/CO/3/ Rev.1, para 35. 24 Concluding Observations on Paraguay (1995) UN doc CCPR/C/79/Add.48, para 23.

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[22.32] The most important decision thus far issued on the right to vote has been Gillot et al v France (932/00). In that case, the HRC, after a lengthy discussion, decided that certain residency restrictions on eligibility to vote in referenda, which were to determine the future political status of the French colony of New Caledonia, were valid under article 25. The main justification for the restrictions was that they were designed to ensure that the referenda were open only to the appropriate peoples with a right of self-determination in respect of New Caledonia under article 1 of the ICCPR [7.07]. OPPORTUNITY TO VOTE

[22.33] The preamble to article 25 states that citizens must also have adequate opportunity to exercise their right to vote: GENERAL COMMENT 25 ¶11. States must take effective measures to ensure that all persons entitled to vote are able to exercise that right. Where registration of voters is required, it should be facilitated and obstacles to such registration should not be imposed. If residence requirements apply to registration, they must be reasonable, and should not be imposed in such a way as to exclude the homeless from the right to vote. Any abusive interference with registration or voting as well as intimidation or coercion of voters should be prohibited by penal laws and those laws should be strictly enforced [18.37]. Voter education and registration campaigns are necessary to ensure the effective exercise of article 25 rights by an informed community. ¶12. Freedom of expression, assembly and association are essential conditions for the effective exercise of the right to vote and must be fully protected. Positive measures should be taken to overcome specific difficulties, such as illiteracy, language barriers, poverty or impediments to freedom of movement which prevent persons entitled to vote from exercising their rights effectively. Information and materials about voting should be available in minority languages. Specific methods, such as photographs and symbols, should be adopted to ensure that illiterate voters have adequate information on which to base their choice. States parties should indicate in their reports the manner in which the difficulties highlighted in this paragraph are dealt with. ¶13. State reports should describe the rules governing the right to vote, and the application of those rules in the period covered by the report. State reports should also describe factors which impede citizens from exercising the right to vote and the positive measures which have been adopted to overcome these factors.

[22.34] Paragraph 13 expressly confirms that States have positive duties under article 25(b) beyond the provision of electoral facilities. Measures should be taken to ensure that disadvantaged citizens have the opportunity to vote and have access to information that helps them exercise this right meaningfully. For example, the HRC has recommended that Ireland:25 ¶23. . . . undertake additional affirmative action aimed at improving the situation of the ‘Travelling Community’ and, in particular, facilitating and enhancing the participation of ‘travellers’ in public affairs, including the electoral process. 25

(1994) UN doc CCPR/C/79/Add.21.

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QUALITY OF VOTE

[22.35]

GENERAL COMMENT 25

¶21. Although the Covenant does not impose any particular electoral system, any system operating in a State party must be compatible with the rights protected by article 25 and must guarantee and give effect to the free expression of the will of the electors. The principle of one person, one vote must apply, and within the framework of each State’s electoral system, the vote of one elector should be equal to the vote of another. The drawing of electoral boundaries and the method of allocating votes should not distort the distribution of voters or discriminate against any group and should not exclude or restrict unreasonably the right of citizens to choose their representatives freely.

Paragraph 21 indicates that numerous electoral systems comply with article 25(b), including proportional representation (PR), constituency voting systems, preferential voting systems, first-past-the-post systems, electoral college systems, and combinations thereof. This is so even though all systems, except pure PR systems, yield allocations of political power that distort the actual voting patterns at elections.26 The General Comment only states that distorted distributions of voters are prohibited, which probably refers to deliberate gerrymandering;27 it does not seem to target distorted election outcomes. [22.36] Article 25(b) prescribes ‘equal suffrage’. The General Comment confirms that all votes should have equal value. On this point, the HRC has criticized ‘functional constituencies’ in pre-transfer Hong Kong, which gave ‘undue weight to the views of the business community’ and discriminated ‘among voters on the basis of property and functions’; functional constituencies violated article 25(b).28 [22.37]

MÁTYUS v SLOVAKIA (923/00)

The complaint is outlined directly below: ¶2.1. The author states that, on 5 November 1998, the RoñÁava Town Council passed Resolution 193/98 establishing five voting districts in the region and 21 representatives in total, for the elections to the RoñÁava Town Council, due to take place on 18 and 19 of December 1998. . . . ¶2.2. According to the author, when comparing the number of residents per representative in the individual voting districts in the town of RoñÁava, he came up with the following figures; one representative per 1,000 residents in district number one; one per 800 residents in district number two; one per 400 residents in district number three; one per 200 residents in district number four; and one per 200 residents in district number five. The number of representatives in each district was not therefore proportional to the number of inhabitants therein. The author was a candidate in voting district number three but failed to secure a seat as he came number eighth and only seven deputies were elected for this district. . . .

26 Joseph, ‘Rights of Political Participation’, 543, 555 (notes 56–7); Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 581–2. 27 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 581–2. 28 (1995) UN doc CCPR/C/79/Add.57, para 19.

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¶3.1. The author contends that the rights of the ‘citizens of RoñÁava’, under article 25(a) and (c) of the Covenant, were violated as they were not given an equal opportunity to influence the results of the elections, in exercising their right to take part in the conduct of public affairs, through the election of representatives. In addition, the author states that their rights were violated as they were not given an equal opportunity to exercise their right to be elected to posts in the town council. ¶3.2. The author contends that his rights, under article 25(a) and (c), were violated, as he would have needed substantially more votes to be elected to the town council than candidates in other districts, due to the fact that the number of representatives in each district was not proportional to the number of inhabitants therein. The author claims that this resulted in his loss of the election.

The State Party acknowledged that the electoral districts had been set up erroneously. The HRC found a violation of article 25: ¶9.2. As regards the question whether article 25 of the Covenant was violated, the Committee notes that the Constitutional Court of the State party held that by drawing election districts for the same municipal council with substantial differences between the number of inhabitants per elected representative, despite the election law which required those voting districts to be proportional to the number of inhabitants, the equality of election rights required by the State party’s constitution was violated. In the light of this pronouncement, based on a constitutional clause similar to the requirement of equality in article 25 of the Covenant, and in the absence of any reference by the State party to factors that might explain the differences in the number of inhabitants or registered voters per elected representative in different parts of RoñÁava, the Committee is of the opinion that the State party violated the author’s rights under article 25 of the Covenant. . . . ¶11. The Committee acknowledges that cancelling elections after they have already taken place may not always be the appropriate remedy in the case of an inequality in the elections, especially when the inequality was inherent in the laws and regulations laid down before the elections, rather than irregularities in the elections themselves. Furthermore, in the specific circumstances of the case, given the time lapse since the elections in December 1998, the Committee is of the opinion that its finding of a violation is of itself a sufficient remedy. The State party is under an obligation to prevent similar violations in the future.

[22.38] Electoral systems should not permit significant differences between the number of voters in different constituencies.29 This would indicate that States should not take ‘positive discrimination’ measures to enhance political representation for less privileged groups or minorities. For example, Scottish and Welsh electors are favoured by lesser populated constituencies in elections for the Westminster Parliament.30 Electoral boundaries within the Australian state of Western Australia have been drawn so as to favour rural populations.31 General Comment 25 indicates such measures are impermissible. Though positive discrimination is permitted in 29 In this respect, note the HRC’s request to Zimbabwe for more information on the size of constituencies in its electoral system; see Concluding Observations on Zimbabwe (1998) UN doc CCPR/C/79/ Add.89, para 23. 30 Joseph, ‘Rights of Political Participation’, 547. 31 The constitutionality of such boundaries was confirmed in McGinty v Western Australia (1996) 186 CLR 140.

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some respects under article 25, the text of General Comment 25 does not seem to permit it in the context of the value of one’s vote. [22.39] The General Comment does not state that all votes should have equal ‘effect’;33 this would be an impossible requirement in constituency-based electoral systems where the effect of votes in marginal seats is always greater than the effect of votes in ‘safe’ seats. Rather, votes are described as being ‘equal’, whereby the numerical value of each vote is equal, even though the impact of each vote may vary. [22.40] In a number of federations such as the United States and Australia, the residents of autonomous States within the federation have greater representation in the federal Parliament compared to residents of non-autonomous territories. For example, each Australian State elects 12 senators, but the residents of the two territories only elect two senators each. The District of Columbia in the United States, the home of the capital, has no voting representation in the Congress. This latter circumstance has been criticized by the HRC:34 ¶36. The Committee, having taken note of the responses provided by the delegation, remains concerned that residents of the District of Columbia do not enjoy full representation in Congress, a restriction which does not seem to be compatible with article 25 of the Covenant (arts. 2, 25 and 26). The State party should ensure the right of residents of the District of Columbia to take part in the conduct of public affairs, directly or through freely chosen representatives, in particular with regard to the House of Representatives.

Article 25(b)—Right to Stand for Election [22.41]

GENERAL COMMENT 25

¶15. The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage of any kind because of that person’s candidacy. States parties should indicate and explain the legislative provisions which exclude any group or category of persons from elective office. ¶16. Conditions relating to nomination dates, fees or deposits should be reasonable and not discriminatory. If there are reasonable grounds for regarding certain elective offices as incompatible with tenure of specific positions (e.g., the judiciary, high-ranking military 32

See eg [22.48] and [22.67]. See also K Partsch, ‘Freedom of Conscience and Expression, and Political Freedoms’, in L Henkin (ed), The International Bill of Rights: The International Covenant on Civil and Political Rights (Columbia University Press, 1981), 240. 34 See Concluding Observations on the United States (2006) UN doc CCPR/C/USA/CO/3/Rev.1. 33

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office, public service), measures to avoid any conflicts of interest should not unduly limit the rights protected by paragraph (b). The grounds for the removal of elected office holders should be established by laws based on objective and reasonable criteria and incorporating fair procedures. ¶17. The right of persons to stand for election should not be limited unreasonably by requiring candidates to be members of parties or of specific parties. If a candidate is required to have a minimum number of supporters for nomination this requirement should be reasonable and not act as a barrier to candidacy. Without prejudice to paragraph (1) of article 5 of the Covenant, political opinion may not be used as a ground to deprive any person of the right to stand for election.

Note also paragraph 4 of the General Comment, where the HRC indicated that restrictions on the right to stand for election could be more onerous than restrictions on the right to vote [22.25]. [22.42]

BWALYA v ZAMBIA (314/88)

The relevant facts are apparent from the HRC’s finding of a violation of article 25: ¶6.6. As to the alleged violation of article 25 of the Covenant, the Committee notes that the author, a leading figure of a political party in opposition to the former President, has been prevented from participating in a general election campaign as well as from preparing his candidacy for this party. This amounts to an unreasonable restriction on the author’s right to ‘take part in the conduct of public affairs’ which the State party has failed to explain or justify. In particular, it has failed to explain the requisite conditions for participation in the elections. Accordingly, it must be assumed that Mr. Bwalya was detained and denied the right to run for a parliamentary seat in the Constituency of Chifubu merely on account of his membership in a political party other than that officially recognised; in this context, the Committee observes that restrictions on political activity outside the only recognised political party amount to an unreasonable restriction of the right to participate in the conduct of public affairs.

Bwalya confirms that one-party systems are not compatible with article 25.35 [22.43] In Dissanayake v Sri Lanka (1373/05), the author was disqualified from standing for election for seven years after he was found guilty of contempt of court. As no justification for such a harsh penalty was put forward, the HRC found that this ban breached article 25(b).36 In contrast, one of the authors in Crippa et al v France was found to have breached French electoral law by standing for election as the effective proxy of another, and was subsequently disqualified from standing for election for a period of one year. He claimed that that circumstance breached article 25(b). The claim was found not to be sufficiently substantiated for the purposes of admissibility. [22.44] In a number of cases against Belarus, the HRC has found various aspects of its system of registering candidates to be incompatible with article 25(b). Denial of registration means that a person cannot validly stand in the relevant election. 35

See also [18.60].

36

At para 8.5.

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The denial of registration to a particular candidate in Lukyanchik v Belarus (1391/05), especially when the registration seemed to comply with local law, breached article 25(b). The arbitrary way in which registration could be granted or denied was exposed as a breach of article 25(b) in Sudalenko v Belarus (1354/05). Finally, the absence of an independent body to review the denial of registration was found to breach article 25(b) in conjunction with the right to a remedy in article 2(3) in Sinitsin v Belarus (1047/02). [22.45] In MA v Italy (117/81), a ban on the reorganization of the Italian Fascist party was found to be compatible with article 25. Presumably, the threat posed to public order and national security by reorganization of the far right group rendered the ban a proportionate limitation of article 25 rights [18.53]. In this respect, the reference in paragraph 17 of General Comment 25 to article 5(1) of the Covenant should be noted [22.41]. Article 5(1) states that the Covenant should not be used as a pretext for any group to engage in activities or to perform acts aimed at the destruction of the ICCPR rights of others. The far right has a history of pursuing policies aimed at undermining the civil and political rights of others.37 [22.46] The HRC has expressed concern at ‘the considerable financial costs’ entailed in seeking election to public office in the United States; these costs ‘adversely affect the right of persons to be candidates at elections’.38 [22.47] General Comment 25, at paragraph 16 [22.41], refers to candidacy restrictions on public servants. Such a restriction was at issue in the following case. DEBRECZENY v THE NETHERLANDS (500/92) Mr Debreczeny was a national police sergeant. Due to his employment as ‘a civil servant in subordination to local council’, he was disqualified from seeking election to a Dutch municipal council. ¶3.1. The author submits that the refusal to accept his membership in the local council of Dantumadeel violates his rights under article 25 (a) and (b) of the Covenant. He contends that every citizen, when duly elected, should have the right to be a member of the local council of the municipality where he resides, and that the relevant regulations, as applied to him, constitute an unreasonable restriction on this right within the meaning of article 25 of the Covenant. ¶3.2. According to the author, his subordination to the mayor of Dantumadeel is merely of a formal character; the mayor seldom gives direct orders to police sergeants. In support of his argument he submits that appointments of national policemen are made by the Minister of Justice, and that the mayor has authority over national police officers only with respect to the maintenance of public order; for the exercise of this authority the mayor is not accountable to the municipal council, but to the Minister of Internal Affairs.

The State Party justified the restrictions on electoral office as follows: ¶7.1. By submission of 17 August 1994, the State party reiterates that the Constitution of the Netherlands guarantees the right to vote and to stand in elections, and that section 25 37

See also [1.23].

38

(1995) UN doc CCPR/C/79/Add.50, para 24.

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of the Municipalities Act, which was in force at the time of Mr. Debreczeny’s election, lays down the positions deemed incompatible with membership in a municipal council. Pursuant to this section, officials subordinate to the municipal authority are precluded from membership in the municipal council. The State party recalls that the rationale for the exclusion of certain categories of persons from membership in the municipal council is to guarantee the integrity of municipal institutions and hence to safeguard the democratic decision-making process, by preventing a conflict of interests. ¶7.2. The State party explains that the term ‘municipal authority’ used in section 25 of the Act encompasses the municipal council, the municipal executive and the mayor. It points out that if holders of positions subordinate to municipal administrative bodies other than the council were to become members of the council, this would also undermine the integrity of municipal administration, since the council, as the highest administrative authority, can call such bodies to account. ¶7.3. The State party explains that officers of the national police force, like Mr. Debreczeny, are appointed by the Minister of Justice, but that they were, according to section 35 of the Police Act in force at the time of Mr. Debreczeny’s election, subordinate to part of the municipal authority, namely the mayor, with respect to the maintenance of public order and emergency duties. The mayor has the power to issue instructions to police officers for these purposes and to issue all the necessary orders and regulations; he is accountable to the council for all measures taken. Consequently, police officers as members of the municipal council would on the one hand have to obey the mayor and on the other call him to account. According to the State party, this situation would give rise to an unacceptable conflict of interests, and the democratic decision-making process would lose its integrity. The State party maintains, therefore, that the restrictions excluding police officers from membership in the council of the municipality where the officers are posted are reasonable and do not constitute a violation of article 25 of the Covenant.

The HRC decided in favour of the State Party on the merits: ¶9.2. The issue before the Committee is whether the application of the restrictions provided for in section 25 of the Municipalities Act, as a consequence of which the author was prevented from taking his seat in the municipal council of Dantumadeel to which he was elected, violated the author’s right under article 25 (b) of the Covenant. The Committee notes that the right provided for by article 25 is not an absolute right and that restrictions of this right are allowed as long as they are not discriminatory or unreasonable. ¶9.3. The Committee notes that the restrictions on the right to be elected to a municipal council are regulated by law and that they are based on objective criteria, namely the electee’s professional appointment by or subordination to the municipal authority. Noting the reasons invoked by the State party for these restrictions, in particular, to guarantee the democratic decision-making process by avoiding conflicts of interest, the Committee considers that the said restrictions are reasonable and compatible with the purpose of the law. . . . The Committee observes that the author was at the time of his election to the council of Dantumadeel serving as a police officer in the national police force, based at Dantumadeel and as such for matters of public order subordinated to the mayor of Dantumadeel, who was himself accountable to the council for measures taken in that regard. In these circumstances, the Committee considers that a conflict of interests could indeed arise and that the application of the restrictions to the author does not constitute a violation of article 25 of the Covenant.

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[22.48] In Concluding Observations on India, the HRC expressly approved of a constitutional amendment prescribing that women receive at least one-third of positions on elected local bodies, as well as the reservation of elected positions for ‘members of scheduled castes and tribes’.39 These ‘quota’ measures are measures of positive discrimination designed to ensure political representation for disadvantaged groups. Reasonable measures of positive discrimination are therefore compatible with article 25 in the context of the right to stand for election, and are also compatible with the specific non-discrimination provisions of the Covenant.40 [22.49]

IGNATANE v LATVIA (884/99)

This case concerned language requirements for political candidates in local elections. ¶2.1. At the time of the events in question, Ms. Ignatane was a teacher in Riga. In 1993, she had appeared before a certification board to take a Latvian language test and had subsequently been awarded a language aptitude certificate stating that she had level 3 proficiency (the highest level). ¶2.2. In 1997, the author stood for local elections to be held on 9 March 1997, as a candidate of the Movement of Social Justice and Equal Rights in Latvia list. On 11 February 1997, she was struck off the list by decision of the Riga Election Commission, on the basis of an opinion issued by the State Language Board (SLB) to the effect that she did not have the required proficiency in the official language. . . . ¶3. The author claims that, by depriving her of the opportunity to stand for the local elections, Latvia violated articles 2 and 25 of the Covenant.

The State Party defended Ignatane’s treatment: ¶4.3. The State party is of the view that the provisions of the aforementioned Law comply with the requirements of the International Covenant on Civil and Political Rights, as provided in the Human Rights Committee’s General Comment No. 25 on article 25, which states that ‘any conditions which apply to the exercise of the rights protected by article 25 should be based on objective and reasonable criteria’. According to the State party, participation in public affairs requires a high level of proficiency in the State language and such a precondition is reasonable and based on objective criteria, which are set forth in the regulations on the certification of proficiency in the State language. The State party says that, according to those regulations, level 3 proficiency in the State language is required for several categories of persons, including elected representatives. The highest level (level 3) shows an ability to speak the official language fluently, to understand texts chosen at random and to draft texts in the official language, in connection with his or her official duties. . . . ¶4.6. Regarding the alleged contradiction between the author’s certificate and the SLB’s conclusions, the State party notes that the SLB’s conclusions relate only to the issue of the candidate’s eligibility and in no way either imply the automatic invalidation of the

39

(1998) UN doc CCPR/C/79/Add.81, para 11.

40

See also [23.87]ff.

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certificate or may be used as a basis for revising its appropriateness, unless the holder of the certificate so wishes.

The HRC found in favour of the author: ¶4.3. . . . According to the State party participation in public affairs requires a high level of proficiency in the State language and a language requirement for standing as a candidate in elections is hence reasonable and objective. The Committee notes that article 25 secures to every citizen the right and the opportunity to be elected at genuine periodic elections without any of the distinctions mentioned in article 2, including language. . . . ¶7.4. The Committee notes that, in this case, the decision of a single inspector, taken a few days before the elections and contradicting a language aptitude certificate issued some years earlier, for an unlimited period, by a board of Latvian language specialists, was enough for the Election Commission to decide to strike the author off the list of candidates for the municipal elections. The Committee notes that the State party does not contest the validity of the certificate as it relates to the author’s professional position, but argues on the basis of the results of the inspector’s review in the matter of the author’s eligibility. The Committee also notes that the State party has not contested counsel’s argument that Latvian law does not provide for separate levels of proficiency in the official language in order to stand for election, but applies the standards and certification used in other instances. The results of the review led to the author’s being prevented from exercising her right to participate in public life in conformity with article 25 of the Covenant. The Committee notes that the first examination, in 1993, was conducted in accordance with formal requirements and was assessed by five experts, whereas the 1997 review was conducted in an ad hoc manner and assessed by a single individual. The annulment of the author’s candidacy pursuant to a review that was not based on objective criteria and which the State party has not demonstrated to be procedurally correct is not compatible with the State party’s obligations under article 25 of the Covenant. ¶7.5. The Committee concludes that Mrs. Ignatane has suffered specific injury in being prevented from standing for the local elections in the city of Riga in 1997, because of having been struck off the list of candidates on the basis of insufficient proficiency in the official language. The Human Rights Committee considers that the author is a victim of a violation of article 25, in conjunction with article 2 of the Covenant.

While the HRC was clearly concerned about the peculiarities of the language test which determined the author’s eligibility for political candidacy, the HRC also indicated that language requirements per se are incompatible with article 25. Presumably, the HRC feels that the free will of the electorate is a sufficient safeguard against the election of candidates who may be completely ineffectual due to lack of appropriate language proficiency.

Article 25(b): Periodic Genuine Elections Expressing the Will of the Electors [22.50]

GENERAL COMMENT 25

¶19. In conformity with paragraph (b), elections must be conducted fairly and freely on a periodic basis within a framework of laws guaranteeing the effective exercise of voting rights. Persons entitled to vote must be free to vote for any candidate for election and for

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or against any proposal submitted to referendum or plebiscite, and free to support or to oppose government, without undue influence or coercion of any kind which may distort or inhibit the free expression of the elector’s will. Voters should be able to form opinions independently, free of violence or threat of violence, compulsion, inducement or manipulative interference of any kind. Reasonable limitations on campaign expenditure may be justified where this is necessary to ensure that the free choice of voters is not undermined or the democratic process distorted by the disproportionate expenditure on behalf of any candidate or party. The results of genuine elections should be respected and implemented. ¶20. An independent electoral authority should be established to supervise the electoral process and to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant. . . .

[22.51] Numerous measures can be implemented to enhance the genuineness of an election. For example, the HRC suggested, with regard to Mexico, that the authorities ‘accept international observers during the balloting’; this ‘would contribute to the transparency of the elections’.41 [22.52] The HRC concedes at paragraph 19 of the General Comment that restrictions on campaign expenditure may be justified in order to preserve the integrity of the electoral process. In this respect, note the HRC’s concerns over excessive campaign expenses in the United States [22.46]. [22.53] State practice indicates that a gap of three to seven years between elections is acceptable.42 [22.54] As mentioned above [22.35], all electoral systems except perhaps pure PR systems can distort the electoral outcome so that it does not accurately reflect the ‘will of the electors’, which may undermine the genuineness of an election. Nevertheless, such distortion, so long as it is not extreme, seems to comply with article 25. SECRET BALLOT

[22.55]

GENERAL COMMENT 25

¶20. States should take measures to guarantee the requirement of the secrecy of the vote during elections, including absentee voting, where such a system exists. This implies that voters should be protected from any form of coercion or compulsion to disclose how they intend to vote or how they voted, and from any unlawful or arbitrary interference with the voting process. Waiver of these rights is incompatible with article 25 of the Covenant. The security of ballot boxes must be guaranteed and votes should be counted in the presence of the candidates or their agents. There should be independent scrutiny of the voting and counting process and access to judicial review or other equivalent process so that electors have confidence in the security of the ballot and the counting of the votes. Assistance provided to the disabled, blind or illiterate should be independent. Electors should be fully informed of these guarantees. 41 42

(1994) UN doc CCPR/C/79/Add.32, para 16. Joseph, ‘Rights of Political Participation’, 554.

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INFLUENCE OF POLITICAL PARTIES AND THE MEDIA

[22.56]

GENERAL COMMENT 25

¶25. In order to ensure the full enjoyment of rights protected by article 25, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. It requires the full enjoyment and respect for the rights guaranteed in articles 19, 21 and 22 of the Covenant, including freedom to engage in political activity individually or through political parties and other organizations, freedom to debate public affairs, to hold peaceful demonstrations and meetings, to criticise and oppose, to publish political material, to campaign for election and to advertise political ideas. ¶26. The right to freedom of association, including the right to form and join organizations and associations concerned with political and public affairs, is an essential adjunct to the rights protected by article 25. Political parties and membership in parties play a significant role in the conduct of public affairs and the election process. States should ensure that, in their internal management, political parties respect the applicable provisions of article 25 in order to enable citizens to exercise their rights thereunder.

[22.57] The notion of ‘genuine’ elections raises some very complex issues. For example, in most States, the likely victors in general elections will come from a limited number of political parties, which have limited agendas. Does the de facto cap on political victors provide genuine choice?43 Steiner has stated that ‘contested elections mean that the people have a choice, but political elites rather than the people decide what that choice is between’.44 Indeed, the HRC concedes the compatibility of the pervasive influence of political parties with article 25 in paragraph 26 of the General Comment, though it stressed that these parties should conduct themselves in accordance with the Covenant’s provisions. [22.58] In paragraph 25, the HRC recognizes the influence of the media in determining the outcomes of elections. Its comments stress that media should be free of government influence.45 The General Comment does not target the pernicious influence of private sector media monopolies in moulding public opinion. The HRC has, however, commented on how such monopolies undermine rights of freedom of expression under article 19 [18.19]. The importance of full enjoyment of article 19 rights for the enjoyment of article 25 rights is expressly recognized in the General Comment at paragraph 8 [22.21]. [22.59] It seems unlikely that the HRC will conduct the complex enquiry needed to determine whether an election, conducted without procedural flaws, nevertheless suffered from substantive flaws owing to the systematic disempowerment of 43 See G Fox, ‘The Right to Political Participation in International Law’ (1992) 17 Yale Journal of International Law 539, 557, citing S Mubako, ‘Zambia’s Single-Party Constitution—A Search for Unity and Development’ (1973) 5 Zambia Law Journal 82; see also Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 590–2. 44 Steiner, ‘Political Participation as a Human Right’, 101. 45 See also Concluding Observations on Armenia (1998) UN doc CCPR/C/79/Add.100, para 21.

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particular persons by the unequal distribution of political and economic power.46 The HRC may implicitly accept that the complexities of modern government induce or even necessitate the effective exclusion of certain agendas and certain voices. In contrast, the Committee on the Elimination of all Forms of Discrimination against Women, established under the International Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW Committee), has exhibited strong awareness of structural problems that impact adversely on the public and political participation of one disadvantaged group, namely women.47

Automated voting systems [22.60]

DE CLIPPELE v BELGIUM (1082/02)

This complaint concerned the compatibility of the use of an automated voting system in communal elections in Belgium. The author stated: ¶3.1 The author is challenging the Act on automated voting on the following grounds: x Lack of independent monitoring of electoral procedures such that the distribution of seats between the lists might be influenced; there are four elements to this: x The system lacks transparency. The software for recording and counting votes has not been made public, so neither the main bureau nor the polling stations can effectively monitor voting procedures; x Voters have no certainty that their vote and the electronic record of their vote on the magnetic card correspond, as the software constitutes an intermediary which they cannot monitor in any way; x The counting of votes is organized and overseen by the Ministry of the Interior. x The monitoring performed by a College of Experts does not compensate for this lack of independence of the body counting the votes, as the functioning, authority and organization of the College are deficient in numerous ways (the College is unable to monitor each polling station effectively, and is powerless against fraud); x Candidates and witnesses are unable to verify the counting of votes or the results as they have no access to the software and therefore can only watch as a printer produces the results of hidden electronic processing; x Restriction of the right to vote, as the voter must select a list without being able to view all the candidates on each list at the same time; x Unreliability and errors relating to the automated vote that came to light in the elections of 8 October 2000, when there were discrepancies at several polling Stations between the number of cards recorded in the ballot boxes and the number of voters who actually voted, and between the number of magnetic cards recorded and the number cancelled. 46 Joseph, ‘Rights of Political Participation’, 553–4; see also Steiner, ‘Political Participation as a Human Right’, 112–13. 47 See CEDAW General Recommendation 23.

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The HRC found the complaint to be inadmissible. With respect to some of the above claims the author had failed to exhaust local remedies. With regard to the remaining claims, the HRC stated: ¶6.4. In respect of the complaints concerning the absence of independent monitoring of electoral procedures and restriction of the right to vote resulting from the Act on automated voting, the Committee considers that even assuming that the author could claim the status of a victim of an alleged violation of the Covenant, he has not provided any evidence to substantiate his complaint.

Article 25(c): Equal Access to the Public Service GENERAL COMMENT 25

[22.61]

¶23. Subparagraph (c) of article 25 deals with the right and the opportunity of citizens to have access on general terms of equality to public service positions. To ensure access on general terms of equality, the criteria and processes for appointment, promotion, suspension and dismissal must be objective and reasonable. Affirmative measures may be taken in appropriate cases to ensure that there is equal access to public service for all citizens. Basing access to public service on equal opportunity and general principles of merit, and providing secured tenure, ensure that persons holding public service positions are free from political interference or pressures. It is of particular importance to ensure that persons do not suffer discrimination in the exercise of their rights under article 25, subparagraph (c), on any of the grounds set out in article 2, paragraph 1.

As confirmed in Kall v Poland (552/93),48 article 25(c) does not guarantee one an actual job within the public service; it guarantees a fair opportunity to acquire one. [22.62] Note paragraph 4 of the General Comment [22.25], where the HRC acknowledged that restrictions on the right to be appointed to public office can be more onerous than restrictions on the right to vote. For example, it is reasonable to require certain educational requirements of judges. [22.63] The HRC has not defined the term ‘public service’. It seems to encompass all positions within the executive, judiciary, legislature, and other areas of state administration. For example, school teachers and lecturers in public universities have been protected under article 25(c) in, respectively, Delgado Páez v Colombia (195/85) [22.74] and Aduayom v Togo (422–424/90). Privatization policies reduce the public sector and therefore seem to reduce the scope of article 25(c). Article 25(c) does not prescribe any optimum public/private divide. [22.64] In BdB v Netherlands (273/88), the HRC said that a State Party is ‘not relieved of obligations under the Covenant when some of its functions are delegated to other autonomous organs’.49 The relevant ‘autonomous organ’ was an industrial board made up of representatives of employers’ and employees’ organizations, 48

At para 13.2.

49

At para 6.6; see also Lindgren et al v Sweden (298–99/88), para 10.4.

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which had no formal connection to the government. Though the case did not raise issues under article 25, it potentially indicates that governments cannot reduce the scope of article 25 by delegating some of their traditional functions to private entities.50 Indeed, it is likely that ‘public service’ has an autonomous meaning that cannot be totally governed by States Parties.51 For example, it is unlikely that a State could ‘privatize’ the army or the police force and therefore hold that positions within those bodies were outside article 25(c). [22.65]

STALLA COSTA v URUGUAY (198/85)

The facts are set out immediately below: ¶2.1. The author states that he has submitted job applications to various governmental agencies in order to have access to and obtain a job in the public service in his country. He has allegedly been told that only former public employees who were dismissed as a result of the application of Institutional Act No. 7 of June 1977 are currently admitted to the public service. He refers in this connection to article 25 of Law No. 15.737 of 22 March 1985, which provides that all public employees who were dismissed as a result of the application of Institutional Act No. 7 have the right to be reinstated in their respective posts. ¶2.2. The author claims that article 25 of Law No. 15.737 gives more rights to former public employees than to other individuals, such as the author himself, and that it is therefore discriminatory and in violation of articles 25(c) and 26 of the International Covenant on Civil and Political Rights.

The HRC dismissed the complaint at the merits stage: ¶10. The main question before the Committee is whether the author of the communication is a victim of a violation of article 25(c) of the Covenant because, as he alleges, he has not been permitted to have access to public service on general terms of equality. Taking into account the social and political situation in Uruguay during the years of military rule, in particular the dismissal of many public servants pursuant to Institutional Act No. 7, the Committee understands the enactment of Law No. 15.737 of 22 March 1985 by the new democratic Government of Uruguay as a measure of redress. Indeed, the Committee observes that Uruguayan public officials dismissed on ideological, political or trade union grounds were victims of violations of article 25 of the Covenant and as such are entitled to have an effective remedy under article 2, paragraph 3 (a), of the Covenant. The Act should be looked upon as such a remedy. The implementation of the Act, therefore, cannot be regarded as incompatible with the reference to ‘general terms of equality’ in article 25 (c) of the Covenant. Neither can the implementation of the Act be regarded as an invidious distinction under article 2, paragraph 1, or as prohibited discrimination within the terms of article 26 of the Covenant [23.88].

[22.66] Stalla Costa raises issues of discrimination on the basis of political opinion in relation to access to the public service, and indicates that such discrimination is not permitted under article 25.52 In this respect, also note the following HRC comments regarding Estonia:53 50

See also the HRC’s comments on private prisons at [9.197]ff. Joseph, ‘Political Participation as a Human Right’, 556. See also Aduayom v Togo (422–424/90). 53 Concluding Observations on Estonia (1996) UN doc CCPR/C/79/Add.59, para 14. 51 52

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¶14. The Committee is concerned that the conditions for appointment to or employment in any position in a State or local government agency in particular the automatic exclusion of persons unable to satisfy the requirements of the written oath of conscience regarding their previous activities (under the former regime) may give rise to an unreasonable restriction on the right of access to public service without discrimination.

[22.67] In Stalla Costa, the HRC endorsed a form of positive discrimination in favour of those who had previously been discriminated against on the basis of their political opinion. See also the discussion of positive discrimination from [23.87], especially the case of Jacobs v Belgium (943/00) regarding public service quotas [23.94]. [22.68] However, certain public service appointments in all States are influenced by the candidate’s political opinion, such as the head of a State’s secret service.54 It is arguable that such distinctions constitute reasonable and justifiable restrictions on article 25 rights. On the facts in Kall v Poland (552/93), the author had held a public service position under the communist government before 1990. In 1990, the author’s position was classified as being a part of the Security Police. The Security Police were disbanded in 1990, so the author lost his job. The author alleged that his job loss entailed a breach of article 25(c). The author failed to provide enough evidence to show that the State Party’s continued failure to re-employ him in another capacity constituted, as he claimed, discrimination on the basis of his leftist political opinions.55 Both the author and the Committee agreed that the dissolution of the Security Police, which caused many to lose their jobs, complied with article 25(c). The Committee accepted the State Party’s contention that the dissolution of the Security Police was necessary to facilitate the State’s ‘profound political transformation’ into a representative democracy, and to restore ‘democracy and the rule of law’.56 [22.69] Numerous cases regarding article 25(c) have confirmed that it guarantees not only access to the public service, but a right of retention in the public service on an equal basis with others.57 In Concluding Observations on Germany, the HRC reaffirmed the importance, for article 25 compliance, of clear laws to circumscribe conditions of tenure in the public service:58 ¶17. The Committee expresses its concern that the criteria used to evaluate for retaining or dismissing former GDR public servants, including judges and teachers, are vague and leave open the possibility of deprivation of employment on the basis of political opinions held or expressed. The Committee therefore suggests that the criteria for dismissing public servants of the former GDR be made more precise so that no public servant will be dismissed on the ground of political opinion held or expressed by him or her.

Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 584–5. 56 At para 13.6. At paras 7.2 and 13.3. 57 See also Chira Vargas Machuca v Peru (906/00); Toro Gedumbe v Democratic Republic of the Congo (641/95); Pastukhov v Belarus (814/98); Busyo et al v Democratic Republic of the Congo (933/00), para 5.2; and Bandaranayake v Sri Lanka (1376/05), paras 7.1–7.2. 58 Concluding Observations on Germany (1997) UN doc CCPR/C/79/Add.73, para 17. 54 55

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[22.70] However, it may be noted that in Albareda v Uruguay (1637/07, 1757 and 1765/08), the complaint concerned the compulsory demotion of certain civil servants over the age of 60 years. The HRC found the claim was not even admissible under article 25(c). Presumably the provision did not apply as the authors were able to retain their position in the public service, but at a lower level than they had been serving. Nevertheless, this interpretation seems unnecessarily formal and narrow.59 [22.71]

INOSTROZA SOLÍS v PERU (1016/01)

The author had been a public servant. Pursuant to a policy to downsize the public service, State law provided for the retrenchment of all female public servants above 55 and all male public servants above 60. The author was terminated as he was 61 years old so he claimed a breach of article 25(c). Peru put forward the following justification for the author’s termination: ¶4.1. . . . With regard to the merits, [Peru] points out that the Supreme Decree of 8 January 1991, in which the Executive announced the reorganization of all public bodies, including ones in the central government, regional governments, decentralized public institutions, development corporations and special projects, was legally supported by article 211 of the 1979 Constitution and was decided upon in view of overstaffing and with the aim of securing the country’s economic stability and financial balance. In this context, the Supreme Decree of 14 March 1991 announced the reorganization of the National Customs Authority in order to improve customs services as part of the process of liberalization of foreign trade. That reorganization plan called, among other things, for the streamlining of personnel, indicating that staff not joining in the voluntary resignation programme would be declared redundant and laid off because of restructuring. The Customs Authority issued resolution 2412 on 4 April 1991, establishing the criteria to be taken into account for announcing the redundancy of employees who had not joined in the voluntary resignation programme, identifying among others staff who had reached the age limit defined in the rules of Decree Law No. 20530 and 19990, i.e. 55 years for women and 60 for men.

The HRC found no violation of article 25(c). ¶6.2. The question raised by the author is whether his dismissal from public service for reasons relating to the reorganization of public bodies constitutes a violation of article 25 (c) of the Covenant. . . . To ensure access on general terms of equality, the criteria and procedures for appointment, promotion, suspension and dismissal must be objective and reasonable. ¶6.3. The Committee recalls its jurisprudence with respect to article 26, to the effect that not every distinction constitutes discrimination, but that distinctions must be justified on reasonable and objective grounds. While age as such is not mentioned as one of the grounds of discrimination prohibited in article 26, the Committee takes the view that a distinction related to age which is not based on reasonable and objective criteria may amount to discrimination on the ground of ‘other status’ under the clause in question, or to a denial of equal protection of the law within the meaning of the first sentence of article 26. This reasoning also applies to article 25 (c) in conjunction with article 2, paragraph 1, of the Covenant. ¶6.4. In the present case the Committee notes that the author was not the only public servant who lost his job, but that other employees of the National Customs Authority were 59

It may be noted that a breach of art 26 was found in this case [23.63].

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also dismissed because of restructuring of that entity. The State party indicates that the restructuring originated from the Supreme Decree of 8 January 1991, wherein the Executive announced a reorganization of all public entities. The criteria for selecting those employees to be dismissed were established following a general implementation plan. The Committee considers that the age limit used in the present case for continued post occupancy was an objective distinguishing criterion and that its implementation in the context of a general plan for the restructuring of the civil service was not unreasonable. Under the circumstances, the Committee considers that the author has not been the subject of a violation of article 25 (c).

Sir Nigel Rodley, Mr Shearer, and Mrs Wedgwood concurred in a separate opinion. They expressed concern over the differential ages for the termination of male and female employees. However, that issue had not been raised by the author and did not seem to prejudice him. [22.72] Messrs Kälin, Johnson, O’Flaherty, and Solari-Yrigoyen dissented in the following terms: ¶1. In the present case, the majority of the Committee concluded that age as such ‘was an objective distinguishing criterion’ and ‘that its implementation in the context of a general plan for the restructuring of the civil service was not unreasonable’ (para. 6.4). In our view this is tantamount to saying that age as such is an objective and reasonable criteria for deciding who would have to leave public service. . . . As it did in the case of Love v. Australia [23.62], the Committee should have examined in the present case whether there were reasonable and objective grounds justifying the use of age as a distinguishing criterion. It did not do so and thus departed from the approach taken in the case of Love v. Australia in a way that cannot be justified in our view. ¶2. In the present case, the State party has failed to demonstrate that the aims of the plan to restructure the National Customs Authority were legitimate. In this context, we note that the Committee in particular did not address the claims of the author that both the Constitution and laws adopted by Parliament guaranteed him security of employment and that these guarantees were not removed as a result of a democratic process of amending the relevant provisions but by decree issued by the then President of Peru. Furthermore, the use of the criterion of age as applied to the author is not objective and reasonable for several reasons. First, the case concerns a matter of dismissal and not retirement. Second, while age may justify dismissal in cases where age affects the ability of the person concerned to perform their functions or where the person concerned has worked long enough to have acquired full or at least substantial pension rights, the State party has not shown that in the case of the author who, notwithstanding his age, had been employed for just 11 years, any such reasons were present. It is therefore our view that the author has been the subject of a violation of article 25 (c) of the Covenant.

It is submitted that the minority opinion is far preferable to that of the majority.60 [22.73]

MAZOU v CAMEROON (630/95)

The author was a magistrate in Cameroon. In 1984, he was found guilty of harbouring his fugitive brother (who was suspected of involvement in an attempted 60

See also Albareda v Uruguay (1637/07) [23.63] and Marín Gómez v Spain (865/99).

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coup d’état), on the basis of no evidence, and sentenced to five years’ imprisonment. In 2 June 1987, during his detention, he was formally removed from his post by presidential decree. He was reinstated in 1998. His article 25 complaint was as follows: ¶7.2. The author first confirms that he was in fact reinstated in the Ministry of Justice and that the administration had indeed paid him his salary dating back to 1 April 1987. ¶7.3. However, the author considers that the administration did not fully grasp the significance of the Supreme Court decision of 30 January 1997. Given that the effects of that decision were retroactive, the author believes that he is entitled to have his career restored, i.e. to be reinstated at the grade he would have held had he not been dismissed. Despite his requests to the Ministry of Justice to that end, however, the author has yet to be informed of a decision.

The HRC upheld the author’s complaint: ¶8.4. With regard to the author’s allegations that the State party violated both article 2 and article 25 of the Covenant, the Committee considers that the Supreme Court proceedings that gave rise to the decision of 30 January 1997 satisfying the request that the author had made in his communication were unduly delayed, taking place more than 10 years after the author’s removal from his post, and were not followed by restoration of his career on reinstatement, to which he was legally entitled in view of the annulment decision of 30 January 1997. Such proceedings cannot, therefore, be considered to be a satisfactory remedy in the meaning of articles 2 and 25 of the Covenant. ¶9. Consequently, the State party has an obligation to reinstate the author of the communication in his career, with all the attendant consequences under Cameroonian law, and must ensure that similar violations do not recur in the future.

[22.74] In Delgado Páez v Colombia (195/85), the HRC found that the ‘constant harassment and threats against [the author’s] person (in respect of which the State party failed to provide protection) made the author’s continuation in public service teaching impossible’.61 Accordingly, the HRC found a breach of article 25(c).

Conclusion [22.75] Article 25(a) generally guarantees a right for all people to be governed democratically by an accountable government. In this respect, the HRC has interpreted article 25 so as to embrace numerous types of political and electoral traditions. Article 25(b) and (c) guarantees more specific rights, such as the right to vote and the right of appointment to government office. Some of the more complex issues concerning meaningful political participation have not yet been addressed by the HRC. For example, all political systems seem to contain systemic deficiencies that perpetuate the power of certain elites. It is uncertain to what the extent such problems can be redressed under article 25. 61

At para 5.1; see also, on this case, [11.03].

23 Rights of Non-discrimination—Articles 2(1), 3, and 26 • • • • •

• • • • • • • • •

Definition of Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [23.04] Scope of ICCPR Non-discrimination Provisions . . . . . . . . . . . . . . . . . [23.13] Prohibited Grounds of Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . [23.25] Indirect Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [23.39] Permissible and Impermissible Differentiation . . . . . . . . . . . . . . . . . . . [23.48] • Racial Profiling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [23.50] • Sex Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [23.51] • Sexuality Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [23.54] • Discrimination on the Grounds of Conscience or Religion . . . . . . . . [23.57] • Language Discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [23.61] • Age Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [23.62] • Discrimination in Relation to Property . . . . . . . . . . . . . . . . . . . . . . . [23.65] • Nationality Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [23.74] • Discrimination on the Grounds of Marital Status . . . . . . . . . . . . . . . [23.77] • Miscellaneous Alleged Grounds of Discrimination . . . . . . . . . . . . . . [23.80] Affirmative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [23.83] Reverse Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [23.87] Measures to Combat Private-sector Discrimination . . . . . . . . . . . . . . . [23.95] Systemic Inequality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [23.104] Educational Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [23.113] Investigation of Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [23.117] Remedies for Victims of Discrimination . . . . . . . . . . . . . . . . . . . . . . . [23.118] • Equalizing Down . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [23.119] Equality before the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [23.120] Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [23.131]

ARTICLE 2 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

ARTICLE 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

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All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

[23.01] The International Covenant on Civil and Political Rights (ICCPR) contains comprehensive prohibitions on discrimination in articles 2(1) and 26. These guarantees are reinforced by article 3 (prohibiting sex discrimination), articles 4(1) (prohibiting discrimination in relation to derogations), and articles 23, 24, and 25, which guarantee non-discrimination in relation to particular substantive rights. Finally, one may note that article 20 requires States to prohibit various forms of incitement to discrimination. It has been suggested that ‘equality and non-discrimination constitute the single dominant theme of the Covenant’. The heavy emphasis on non-discrimination in the ICCPR is appropriate; discrimination is at the root of virtually all human rights abuses. [23.02] The pervasive link between discrimination and other ICCPR abuses is illustrated in General Comment 28, on Equality of Rights between Men and Women. GENERAL COMMENT 28 ¶13. States parties should provide information on any specific regulation of clothing to be worn by women in public. The Committee stresses that such regulations may involve a violation of a number of rights guaranteed by the Covenant, such as: article 26, on nondiscrimination; article 7, if corporal punishment is imposed in order to enforce such a regulation; article 9, when failure to comply with the regulation is punished by arrest; article 12, if liberty of movement is subject to such a constraint; article 17, which guarantees all persons the right to privacy without arbitrary or unlawful interference; articles 18 and 19, when women are subjected to clothing requirements that are not in keeping with their religion or their right of self-expression; and, lastly, article 27, when the clothing requirements conflict with the culture to which the woman can lay a claim.

[23.03] Two other United Nations treaties specifically deal with discrimination: the International Convention on the Elimination of all Forms of Racial Discrimination 1966 (ICERD) and the Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW). These Conventions go into further detail as to the scope of non-discrimination obligations in the areas of race and sex. It is to be expected that the Human Rights Committee (HRC) is influenced by ICERD and CEDAW precedents in its interpretation of the relevant ICCPR guarantees, so some reference will be made to the jurisprudence of the respective ICERD and CEDAW Committees. Indeed, it is arguable that the ICCPR obligations essentially subsume those of ICERD and CEDAW, and go substantially further by prohibiting discrimination on more grounds. Relevant jurisprudence will also now emerge from the Committee on the Protection of the Rights of Persons with Disabilities, the monitoring body under the Convention on the Rights of Persons with Disabilities 2006.

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Definition of Discrimination [23.04]

GENERAL COMMENT 18

¶7. The Committee believes that the term ‘discrimination’ as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. ¶13. Finally, the Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.

[23.05] Article 3 guarantees a right of ‘equality’ to men and women. Is ‘equality’ a substantively different concept from ‘non-discrimination’? Linguistically, the notion of equality seems to incorporate more positive obligations than does a notion of ‘non-discrimination’.1 [23.06] In Smídek v Czech Republic (1062/02), the complaint concerned alleged differential treatment of a candidate for judicial office compared to other candidates. He had had to undergo a personality test while other candidates did not. The complaint was ruled inadmissible because his situation was relevantly different to those other candidates: they had prior judicial experience and he did not. The case demonstrates a truism regarding discrimination. The different treatment of people in like situations gives rise to discrimination. The different treatment of people in different situations does not. [23.07] In Waldman v Canada (694/96), the impugned discrimination concerned a preference given to Roman Catholic schools compared to schools for other minority religious groups [23.60]. In finding a violation of article 26, the HRC confirmed that one is just as much a victim of discrimination when the advantaged group is a comparable minority as when the advantaged group is a majority.2 See also the discussion of Haraldsson and Sveinsson v Iceland (1306/04) [23.71]. On the other hand, one may note that the complaint in Brinkhof v Netherlands (402/90) concerned the differential treatment of different types of conscientious objectors to military service. Most conscientious objectors had to serve a period of alternative service but Jehovah’s Witnesses did not have to perform any service. The HRC found that Brinkhof had failed to substantiate why the preferential treatment of Jehovah’s Witnesses harmed his rights.3 Indeed, the decision is quite 1 Lord Lester of Herne Hill QC and S Joseph, ‘Obligations of Non-Discrimination’, in D Harris and S Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (Clarendon Press, 1995), 565. See, generally on positive obligations, [23.83]ff. See also B Ramcharan, ‘Equality and Non-discrimination’, in L Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (Columbia University Press, 1981), 254. 2 3 However, see Tadman v Canada (816/98) [3.05]. At para 9.3.

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incoherent as the HRC went on to informally recommend to the Netherlands that it treat conscientious objectors with equally strong convictions equally.4 [23.08] Prohibited discrimination can occur unintentionally or without malice.5 This has been confirmed numerous times, including in Simunek et al v Czech Republic (516/92): ¶11.7. The State party contends that there is no violation of the Covenant because the Czech and Slovak legislators had no discriminatory intent at the time of the adoption of Act 87/1991. The Committee is of the view, however, that the intent of the legislature is not alone dispositive in determining a breach of article 26 of the Covenant. A politically motivated differentiation is unlikely to be compatible with article 26. But an act which is not politically motivated may still contravene article 26 if its effects are discriminatory.

[23.09] The following case nevertheless indicates that the HRC can be influenced by the fact that a measure is not purposefully discriminatory. WACKENHEIM v FRANCE (854/99) The author was a dwarf who had been employed as the person tossed in dwarf tossing events. He wore suitable clothing and was tossed onto an airbed by clients of the discotheque which put on the event. Dwarf tossing was banned in France in November 1991 after the government decided that it was a degrading spectacle. The complaint was as follows: ¶ 2.6 … In spite of his desire to continue, the author has since been without a job for want of anyone to organize dwarf tossing events. … ¶ 3. The author affirms that banning him from working has had an adverse effect on his life and represents an affront to his dignity. He claims to be the victim of a violation by France of his right to freedom, employment, respect for private life and an adequate standard of living, and of an act of discrimination. He further states that there is no work for dwarves in France and that his job does not constitute an affront to human dignity since dignity consists in having a job. …

The HRC found in favour of the State Party: ¶7.3. . . . The question, in the present case, is whether the differentiation between the persons covered by the ban ordered by the State party and persons to whom this ban does not apply may be validly justified. ¶7.4. The ban on throwing ordered by the State party in the present case applies only to dwarves (as described in paragraph 2.1). However, if these persons are covered to the exclusion of others, the reason is that they are the only persons capable of being thrown. Thus, the differentiation between the persons covered by the ban, namely dwarves, and those to whom it does not apply, namely persons not suffering from dwarfism, is based on an objective reason and is not discriminatory in its purpose. The Committee considers that the State party has demonstrated, in the present case, that the ban on dwarf tossing as practised by the author did not constitute an abusive measure but was necessary in order to

4

At para 9.4.

5

See also eg Broeks v Netherlands (172/84), para 16.

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protect public order, which brings into play considerations of human dignity that are compatible with the objectives of the Covenant. The Committee accordingly concludes that the differentiation between the author and the persons to whom the ban ordered by the State party does not apply was based on objective and reasonable grounds. ¶7.5. The Committee is aware of the fact that there are other activities which are not banned but which might possibly be banned on the basis of grounds similar to those which justify the ban on dwarf tossing. However, the Committee is of the opinion that, given that the ban on dwarf tossing is based on objective and reasonable criteria and the author has not established that this measure was discriminatory in purpose, the mere fact that there may be other activities liable to be banned is not in itself sufficient to confer a discriminatory character on the ban on dwarf tossing. For these reasons, the Committee considers that, in ordering the above-mentioned ban, the State party has not, in the present case, violated the rights of the author as contained in article 26 of the Covenant.

[23.10]

MARTINEZ de IRUJO v SPAIN (1008/01)

This complaint concerned the fact that the daughter of a deceased duke was unable to succeed to her father’s various ranks and titles as they went instead to her younger brother. She argued that the inherent sex discrimination relating to the inheritance of titles of nobility breached article 26. The HRC found the claim to be inadmissible: ¶6.5. The Committee notes that while the State party has argued that hereditary titles of nobility are devoid of any legal and material effect, they are nevertheless recognized by the State party’s laws and authorities, including its judicial authorities. . . . [T]he Committee considers that article 26 cannot be invoked in support of claiming a hereditary title of nobility, an institution that, due to its indivisible and exclusive nature, lies outside the underlying values behind the principles of equality before the law and non-discrimination protected by article 26. It therefore concludes that the author’s communication is incompatible ratione materiae with the provisions of the Covenant, and thus inadmissible pursuant to article 3 of the Optional Protocol.

The HRC essentially found that issues regarding hereditary titles were so utterly incompatible with notions of non-discrimination as to render them non-justiciable under the ICCPR. An alternative, and arguably more logical, course would have been to find them so incompatible with notions of non-discrimination that they breached relevant rights in that regard. Or, the HRC could have embarked on reasoning as to why such discrimination is somehow reasonable in the modern day. Instead, the majority delivered a weak and largely unreasoned decision, which was rightly criticized in the separate dissenting opinions.6 Similar majority and minority decisions were delivered in Barcaiztegui v Spain (1019/01).7 [23.11] General Recommendation 19, issued under ICERD, confirms that segregation is a form of discrimination [23.111]. The UN bodies will not accept the argument that segregated groups are ‘separate but equal’.8 6 Messrs Rivas Posada and Solari Yrigoyen found that there was a breach of art 26, while Mrs Wedgwood was clearly troubled by the majority decision. 7 See also Muñoz Vargas and Vicuña v Spain (CEDAW 7/05). 8 See eg the seminal US Supreme Court case of Brown v Board of Education 347 US 483 (1954).

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[23.12] Discrimination can also be manifested by offensive words that promote the vilification and hatred of persons on a prohibited basis. Most obviously, article 20 ICCPR and article 4 ICERD prohibit racial vilification and, in the case of the former, vilification on religious or national grounds. Such instances of discrimination are discussed in Chapter 18, owing to their inevitable impact on the right to freedom of expression.

Scope of ICCPR Non-discrimination Provisions [23.13] Article 2(1) prohibits discrimination on certain grounds in the exercise of the Covenant’s enumerated rights (ie articles 6–27). Article 3 underlines the prohibition on sex discrimination by guaranteeing that all of the Covenant’s rights shall be enjoyed equally by men and women. Article 26 extends considerably further than articles 2(1) and 3, as was confirmed in the following case. [23.14]

BROEKS v THE NETHERLANDS (172/84)

The facts are set out immediately below: ¶2.3. Mrs Broeks claims that, under existing law (Unemployment Benefits Act (WWV), sect. 13, subsect. 1 (1), and Decree No. 61 452/IIIa of 5 April 1976, to give effect to sect. 13, subsect. I (1), of the Unemployment Benefits Act) an unacceptable distinction has been made on the grounds of sex and status. She bases her claim on the following: if she were a man, married or unmarried, the law in question would not deprive her of unemployment benefits. Because she is a woman, and was married at the time in question, the law excludes her from continued unemployment benefits. This, she claims, makes her a victim of a violation of article 26 of the Covenant on the grounds of sex and status. She claims that article 26 of the International Covenant on Civil and Political Rights was meant to give protection to individuals beyond the specific civil and political rights enumerated in the Covenant.

The State Party made several responses to Mrs Broeks’ allegations of a breach of article 26: ¶4.1. In its submission dated 29 May 1985 the State party underlined, inter alia, that: (a) The principle that elements of discrimination in the realisation of the right to social security are to be eliminated is embodied in article 9 in conjunction with articles 2 and 3 of the International Covenant on Economic, Social and Cultural Rights; (b) The Government of the Kingdom of the Netherlands has accepted to implement this principle under the terms of the International Covenant on Economic, Social and Cultural Rights. Under these terms, States parties have undertaken to take steps to the maximum of their available resources with a view to achieving progressively the full realisation of the rights recognised in that Covenant (art. 2, para. 1); (c) The process of gradual realisation to the maximum of available resources is well on its way in the Netherlands. Remaining elements of discrimination in the realisation of the rights are being and will be gradually eliminated;

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(d) The International Covenant on Economic, Social and Cultural Rights has established its own system for international control of the way in which States parties are fulfilling their obligations. To this end States parties have undertaken to submit to the Economic and Social Council reports on the measures they have adopted and the progress they are making. The Government of the Kingdom of the Netherlands to this end submitted its first report in 1983.9 . . . ¶8.3. With regard to the scope of article 26 of the Covenant, the State party argues, inter alia, as follows: The Netherlands Government takes the view that article 26 of the Covenant does entail an obligation to avoid discrimination, but that this article can only be invoked under the Optional Protocol to the Covenant in the sphere of civil and political rights, not necessarily limited to those civil and political rights that are embodied in the Covenant. The Government could, for instance, envisage the admissibility under the Optional Protocol of a complaint concerning discrimination in the field of taxation. But it cannot accept the admissibility of a complaint concerning the enjoyment of economic, social and cultural rights. The latter category of rights is the object of a separate United Nations Covenant. Mrs Broeks’ complaint relates to rights in the sphere of social security, which fall under the International Covenant on Economic, Social and Cultural Rights. Articles 2, 3 and 9 of that Covenant are of particular relevance here. That Covenant has its own specific system and its own specific organ for international monitoring of how States parties meet their obligations and deliberately does not provide for an individual complaints procedure. The Government considers it incompatible with the aims of both the Covenants and the Optional Protocol that an individual complaint with respect to the right of social security, as referred to in article 9 of the International Covenant on Economic, Social and Cultural Rights, could be dealt with by the Human Rights Committee by way of an individual complaint under the Optional Protocol based on article 26 of the International Covenant on Civil and Political Rights. The Netherlands Government reports to the Economic and Social Council on matters concerning the way it is fulfilling its obligations with respect to the right to social security, in accordance with the relevant rules of the International Covenant on Economic, Social and Cultural Rights. . . . Should the Human Rights Committee take the view that article 26 of the International Covenant on Civil and Political Rights ought to be interpreted more broadly, thus that this article is applicable to complaints concerning discrimination in the field of social security, the Government would observe that in that case article 26 must also be interpreted in the light of other comparable United Nations conventions laying down obligations to combat and eliminate discrimination in the field of economic, social and cultural rights. The Government would particularly point to the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women. If article 26 of the International Covenant on Civil and Political Rights were deemed applicable to complaints concerning discriminatory elements in national legislation in the field of those conventions, this could surely not be taken to mean that a State party would be required to have eliminated all possible discriminatory elements from its legislation in 9

The ICESCR is now monitored by the Committee on Economic, Social and Cultural Rights.

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those fields at the time of ratification of the Covenant. Years of work are required in order to examine the whole complex of national legislation in search of discriminatory elements. The search can never be completed, either, as distinctions in legislation which are justifiable in the light of social views and conditions prevailing when they are first made may become disputable as changes occur in the views held in society. . . . If the Human Rights Committee should decide that article 26 of the International Covenant on Civil and Political Rights entails obligations with regard to legislation in the economic, social and cultural field, such obligations could, in the Government’s view, not comprise more than an obligation of States to subject national legislation to periodic examination after ratification of the Covenant with a view to seeking out discriminatory elements and, if they are found, to progressively taking measures to eliminate them to the maximum of the State’s available resources. Such examinations are under way in the Netherlands with regard to various aspects of discrimination, including discrimination between men and women. ¶8.4. With regard to the principle of equality laid down in article 26 of the Covenant in relation to section 13, subsection 1(1), of WWV in its unamended form, the State party explains the legislative history of WWV and in particular the social justification of the ‘breadwinner’ concept at the time the laws was drafted. The State party contends that, with the ‘breadwinner’ concept, ‘a proper balance was achieved between the limited availability of public funds (which makes it necessary to put them to limited, well-considered and selective use) on the one hand and the Government’s obligation to provide social security on the other. The Government does not accept that the “breadwinner” concept as such was “discriminatory” in the sense that equal cases were treated in an unequal way by law.’ Moreover, it is argued that the provisions of WWV ‘are based on reasonable social and economic considerations which are not discriminatory in origin. The restriction making the provision in question inapplicable to men was inspired not by any desire to discriminate in favour of men and against women but by the de facto social and economic situation which existed at the time when the Act was passed and which would have made it pointless to declare the provision applicable to men. At the time when Mrs Broeks applied for unemployment benefits the de facto situation was not essentially different. There was therefore no violation of article 26 of the Covenant. This is not altered by the fact that a new social trend has been growing in recent years, which has made it undesirable for the provision to remain in force in the present social context.’

The impugned law was in fact amended in 1985 with retrospective effect to 23 December 1984. As Mrs Broeks’ payments had been discontinued in 1980, the amendment provided her with only a partial remedy for her complaint. The HRC delivered its merits decision in favour of Mrs Broeks: ¶12.1. The State party contends that there is considerable overlapping of the provisions of article 26 with the provisions of article 2 of the International Covenant on Economic, Social and Cultural Rights. The Committee is of the view that the International Covenant on Civil and Political Rights would still apply even if a particular subject-matter is referred to or covered in other international instruments, for example, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, or, as in the present case, the International Covenant on Economic, Social and Cultural Rights. Notwithstanding the interrelated drafting history of the two Covenants, it remains necessary for the Committee to apply fully

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the terms of the International Covenant on Civil and Political Rights. The Committee observes in this connection that the provisions of article 2 of the International Covenant on Economic, Social and Cultural Rights do not detract from the full application of article 26 of the International Covenant on Civil and Political Rights.

The HRC then noted that the travaux préparatoires of the ICCPR were inconclusive as to the scope of article 26: ¶12.3. For the purpose of determining the scope of article 26, the Committee has taken into account the ‘ordinary meaning’ of each element of the article in its context and in the light of its object and purpose (art. 31 of the Vienna Convention on the Law of Treaties). The Committee begins by noting that article 26 does not merely duplicate the guarantees already provided for in article 2. It derives from the principle of equal protection of the law without discrimination, as contained in article 7 of the Universal Declaration of Human Rights, which prohibits discrimination in law or in practice in any field regulated and protected by public authorities. Article 26 is thus concerned with the obligations imposed on States in regard to their legislation and the application thereof. ¶12.4. Although article 26 requires that legislation should prohibit discrimination, it does not of itself contain any obligation with respect to the matters that may be provided for by legislation. Thus it does not, for example, require any State to enact legislation to provide for social security. However, when such legislation is adopted in the exercise of a State’s sovereign power, then such legislation must comply with article 26 of the Covenant. ¶12.5. The Committee observes in this connection that what is at issue is not whether or not social security should be progressively established in the Netherlands, but whether the legislation providing for social security violates the prohibition against discrimination contained in article 26 of the International Covenant on Civil and Political Rights and the guarantee given therein to all persons regarding equal and effective protection against discrimination. ¶13. The right to equality before the law and to equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26. ¶14. It therefore remains for the Committee to determine whether the differentiation in Netherlands law at the time in question and as applied to Mrs Broeks constituted discrimination within the meaning of article 26. The Committee notes that in Netherlands law the provisions of articles 84 and 85 of the Netherlands Civil Code impose equal rights and obligations on both spouses with regard to their joint income. Under section 13, subsection 1(1), of the Unemployment Benefits Act (WWV), a married woman, in order to receive WWV benefits, had to prove that she was a ‘breadwinner’—a condition that did not apply to married men. Thus a differentiation which appears on one level to be one of status is in fact one of sex, placing married women at a disadvantage compared with married men. Such a differentiation is not reasonable; and this seems to have been effectively acknowledged even by the State party by the enactment of a change in the law on 29 April 1985, with retroactive effect to 23 December 1984. . . . ¶15. The circumstances in which Mrs Broeks found herself at the material time and the application of the then valid Netherlands law made her a victim of a violation, based on sex, of article 26 of the International Covenant on Civil and Political Rights, because she was denied a social security benefit on an equal footing with men.

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The ICCPR

¶16. The Committee notes that the State party had not intended to discriminate against women and further notes with appreciation that the discriminatory provisions in the law applied to Mrs Broeks have, subsequently, been eliminated. Although the State party has thus taken the necessary measures to put an end to the kind of discrimination suffered by Mrs Broeks at the time complained of, the Committee is of the view that the State party should offer Mrs Broeks an appropriate remedy.

[23.15]

GENERAL COMMENT 18

The Broeks decision was very controversial.10 However, it was supported in General Comment 18, where the HRC stated the following: ¶12. While article 2 limits the scope of the rights to be protected against discrimination to those provided for in the Covenant, article 26 does not specify such limitations. That is to say, article 26 provides that all persons are equal before the law and are entitled to equal protection of the law without discrimination, and that the law shall guarantee to all persons equal and effective protection against discrimination on any of the enumerated grounds. In the view of the Committee, article 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities. Article 26 is therefore concerned with the obligations imposed on States parties in regard to their legislation and the application thereof. Thus, when legislation is adopted by a State party, it must comply with the requirement of article 26 that its content should not be discriminatory. In other words, the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant.

[23.16] The article 26 guarantee of ‘equality before the law’ guarantees equality with regard to the enforcement of the law. Judges and other legal administrators must not apply legislation in an arbitrary or discriminatory manner.11 The guarantee of ‘equal protection of the law’ guarantees de jure equality, so that the law dispenses rights and duties to all without discrimination.12 Non-discrimination in article 26 ‘is a principle above the law’, circumscribing the legitimacy of laws themselves.13 [23.17] Article 26 may be distinguished from article 14 of the European Convention on Human Rights, which guarantees non-discrimination only in relation to other Convention rights. In contrast, article 26 is a free-standing guarantee of non-discrimination in relation to all rights. A free-standing right within the European Convention system is now found in article 1 of Protocol 12 to the Convention.

10 See M Schmidt, ‘The Complementarity of the Covenant and the European Convention on Human Rights—Recent Developments’, in Harris and Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law, 637–9. See also T Opsahl, ‘Equality in Human Rights Law with Particular Reference to Article 26 of the International Covenant on Civil and Political Rights’, in M Nowak, D Steurer, and H Tretter (eds), Festschrift für Felix Ermacora (NP Engel, 1988), 51. 11 M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005), 605–6. In so far as this duty applies to judges, it reflects similar rights of ‘equality before the courts’ in art 14(1) (see [14.21]). See also below [23.20]ff. 12 Lester and Joseph, ‘Obligations of Non-Discrimination’, 566. 13 Opsahl, ‘Equality in Human Rights Law’, 61.

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[23.18] Numerous cases have confirmed the Broeks decision that article 26 protects against discrimination in relation to economic and social rights as well as civil and political rights. For example, the HRC has found allegations of discrimination concerning the following ‘rights’, not independently guaranteed in the ICCPR, to be admissible: retirement pensions (Johannes Vos v Netherlands (786/97)); severance pay (Valenzuela v Peru (309/88)); unemployment benefits (Broeks, Zwaan-de-Vries v Netherlands (182/84), Cavalcanti Araujo-Jongen v Netherlands (418/90), García Pons v Spain (454/91)); disability pensions (Danning v Netherlands (180/84), Vos v Netherlands (218/86)); education subsidies (Blom v Sweden (191/85), Lindgren et al v Sweden (298–9/88), Waldman v Canada (694/96)); employment (Bwalya v Zambia (314/88), Wackenheim v France (854/99)); veterans’ pensions (Gueye et al v France (196/85)); public health insurance (Sprenger v Netherlands (395/90)); survivors’ pensions (Pauger v Austria (415/90), Pepels v Netherlands (484/91), Hoofdman v Netherlands (602/94)); children’s benefits (Oulajin & Kaiss v Netherlands (406, 426/90)); property rights (Simunek v Czech Republic (516/92), Adam v Czech Republic (586/94), (Haraldsson and Sveinsson v Iceland (1306/04)); calculation of land rates (Pohl v Austria (1160/03)); and calculation of taxable income (Bartolomeu v Portugal (1783/08), Gonçalves et al v Portugal (1783/08)). A minority found that ‘freedom from extradition’ could ground a complaint under article 26 in Kindler v Canada (470/91); the majority did not comment on this point.14 Indeed, no article 26 communication has ever been expressly ruled inadmissible for its failure to raise a relevant ‘right’ in regard to which discrimination has allegedly occurred. [23.19] However, a number of minority opinions, excerpted directly below, have challenged the Broeks reasoning. SPRENGER v THE NETHERLANDS (395/90) In Sprenger, the author claimed that Dutch law regarding unemployment benefits discriminated against her on the basis of her marital status. The HRC ultimately found no ICCPR violation in this case [23.78]. Messrs Ando, Herndl, and N’diaye appended the following concurring opinion regarding the scope of article 26: Surely, it is also necessary to take into account the reality that the socio-economic and cultural needs of society are constantly evolving, so that legislation—in particular in the field of social security—may well, and often does, lag behind developments. Accordingly, article 26 of the Covenant should not be interpreted as requiring absolute equality or nondiscrimination in that field at all times; instead, it should be seen as a general undertaking on the part of the States parties to the Covenant to regularly review their legislation in order to ensure that it corresponds to the changing needs of society. In the field of civil and political rights, a State party is required to respect Covenant rights such as the right to a fair trial, to freedom of expression and freedom of religion, immediately from the date of entry into force of the Covenant, and to do so without discrimination. On the other hand, with regard to rights enshrined in the International Covenant on Economic, Social and Cultural Rights, it is generally understood that States parties may need time for the progressive 14

See also Mr Lallah’s concurring individual opinion in Judge v Canada (829/98).

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The ICCPR

implementation of these rights and to adapt relevant legislation in stages; moreover, constant efforts are needed to ensure that distinctions that were reasonable and objective at the time of enactment of a social security provision are not rendered unreasonable and discriminatory by the socio-economic evolution of society. Finally, we recognise that legislative review is a complex process entailing consideration of many factors, including limited financial resources, and the potential effects of amendments on other existing legislation.

A similar separate opinion was issued in Oulajin and Kaiss v Netherlands (406, 426/90) by Messrs Herndl, Müllerson, N’diaye, and Sadi.15 [23.20]

JHW v THE NETHERLANDS (501/92)

The complaint in this case concerned alleged sex discrimination with respect to assessment of income tax. In finding the case inadmissible, the HRC stated the following: ¶5.2. . . . [T]he Committee notes that the State party, in 1989, adopted measures to abolish the exemption at issue in the present communication. The Committee considers, taking into account that social security legislation and its application usually lag behind socioeconomic developments in society, and that the purpose of the abrogated exemption was at its time not generally considered discriminatory, that the issue which the author raises in his communication is moot and that he has no claim under article 2 of the Optional Protocol.

[23.21] The JHW reasoning seems inconsistent with Broeks, and, at the time of the decision (July 1993), could have been interpreted as an endorsement of the more conservative minority opinions in Sprenger and Oulajin and Kaiss. However, the Broeks reasoning has been constantly supporting decisions since, and is now safely entrenched. [23.22] The nature of the right to which the discrimination claim is attached may impact on the HRC’s decision on whether a distinction is reasonable and therefore permissible under the Covenant. The HRC has not found many distinctions with respect to economic social and cultural rights to constitute article 26 violations. This may be due to the ultimate lack of merit in many of the complaints. Alternatively, it may be that the HRC is more willing to defer to a State Party’s policies when dealing with complaints of discrimination in the economic field, as is recommended by Mr Ando in a separate opinion in Adam v Czech Republic (586/94) [23.66]. [23.23] Since Broeks, many article 26 cases have involved allegations of discrimination with regard to social security payments. One may speculate that the common reason for the making of legislative distinctions with regard to social security is to save money. The HRC paid scant regard to arguments based on budgetary constraints per se in Broeks [23.14] and Waldman v Canada (694/96) [23.60]. However, the impugned distinction in the legislation in the Cavalcanti case [23.43] may perhaps be justified only on the basis of pure budgetary constraints. In that case, the HRC found a distinction between employed and unemployed 15 See also decisions of Mr Ando in Love v Australia (983/01) and Derksen and Bakker v Netherlands (976/01).

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persons, regarding eligibility for retroactive unemployment benefits for periods of past unemployment, to be reasonable and objective. Why is one’s present employment status relevant in determining eligibility for unemployment benefits for a period of past unemployment, especially where the unemployment benefit had originally been refused for sexually discriminatory reasons? [23.24] Article 1 of both ICERD and CEDAW, and most other substantive articles therein, confirm that both treaties prohibit race and sex discrimination, respectively, with regard to all civil, political, economic, social, and cultural rights.16

Prohibited Grounds of Discrimination [23.25] Article 3 prohibits discrimination on the ground of sex. Articles 2(1) and 26 go further, and arguably subsume article 3. Both articles contain identical lists of prohibited grounds of discrimination: race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or ‘any other status’. [23.26] In a separate opinion in Vos v Netherlands (218/86), Messrs Aguilar Urbina and Wennergren stated the following on the meaning of ‘other status’: ¶1. Article 26 of the Covenant has been interpreted as providing protection against discrimination whenever laws differentiating among groups or categories of individuals do not correspond to objective criteria. It has also been interpreted in the sense that whenever a difference in treatment does not affect a group of people but only separate individuals, a provision cannot be deemed discriminatory as such: negative effects on one individual cannot then be considered to be discrimination within the scope of article 26.

When does a group of separate individuals constitute a distinct group linked by their common ‘status’? Would members of a football club or philosophical society constitute a distinct group? [23.27] The HRC has not issued a detailed consensus comment on the meaning of ‘any other status’, preferring to decide on a case-by-case basis whether a complaint raises a relevant ground of discrimination. [23.28]

VAN OORD v THE NETHERLANDS (658/95)

The complaint related, inter alia, to the differing treatment of the pensions of former Dutch nationals accorded under differing bilateral treaties concluded between the Netherlands and other States. The HRC found no violation: ¶8.5. With regard to this claim, the Committee observes that it is undisputed that the criteria used in determining the authors’ pension entitlements are equally applied to all former Dutch citizens now living in the U.S.A. . . . According to the authors, the fact that former Dutch citizens now living in Australia, Canada and New Zealand benefit from [higher pension] privileges, entails discrimination. The Committee observes, however, that the

16

See eg art 5(d) and (e) ICERD.

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The ICCPR

categories of persons being compared are distinguishable and that the privileges at issue [Dutch pensions for Dutch citizens abroad] respond to separately negotiated bilateral treaties which necessarily reflect agreements based on reciprocity. The Committee recalls its jurisprudence that a differentiation based on reasonable and objective criteria does not amount to a prohibited discrimination within the meaning of article 26. ¶8.6. The Committee finds therefore that the facts . . . do not raise an issue under article 26 of the Covenant . . .

In Van Oord, the HRC gave a clue how ‘other statuses’ are determined, by indicating that one may be permissibly treated differently from another whose status is relevantly ‘distinguishable’. In Van Oord, relevant distinctions did apparently exist between Dutch citizens resident in the United States and Dutch citizens abroad in other States, for the purposes of assessing tax on their pensions. However, a test of ‘relevant distinction’ does not seem any easier to apply than the Vos test of belonging to a ‘group’. Indeed, the relevance of a distinction presumably varies according to the ‘right’ at issue. For example, whilst it may have been reasonable to distinguish between the overseas residences of Dutch expatriates for the purposes of pension taxation, it seems unreasonable to distinguish between such persons for the purposes of determining their right to vote in Dutch elections.17 [23.29] The HRC has found the following to constitute ‘other statuses’ for the purposes of admissibility of a complaint of violation of the Covenant’s non-discrimination provisions: age (Schmitz-de-Jong v Netherlands (855/99),18 Love v Australia (983/01));19 nationality (Gueye v France (196/85),20 Adam v Czech Republic (586/94), Karakurt v Austria (965/00)); marital status (Danning v Netherlands (180/84), Sprenger v Netherlands (395/90), Hoofdman v Netherlands (602/94)); dwarfism (Wackenheim v France (854/99)); illegitimacy (Derksen and Bakker v Denmark (976/01));21 place of residence within a State (Lindgren et al v Sweden (298–9/88));22 a distinction between ‘foster’ and ‘natural’ children (Oulajin & Kaiss v Netherlands (406, 426/90)); a difference between students at public and private schools (Blom v Sweden (191/85), Lindgren et al v Sweden (298–9/88)); a difference between employed and unemployed persons (Cavalcanti Araujo-Jongens v Netherlands (418/90));23 a difference between people performing their compulsory national service in a military and in a non-military capacity (Järvinen v Finland 17 See also Shergill v Canada (1506/06) and Gallego Díaz v Spain (988/01). Compare Karakurt v Austria (965/00) [23.74]. 18 The HRC ultimately found no violation entailed in the restriction of senior citizens’ bus passes to 65-year-olds and the 60-year-old spouses thereof. The author was a 44-year-old wife of a man over 65. See also Concluding Observations on Poland (2010) UN doc CCPR/C/POL/CO/6, para 5. 19 In a dissenting opinion, Mr Ando denied that age constituted an ‘other status’ under the ICCPR, because ‘age is applicable to all the human species’. 20 See also Concluding Observations on Japan (2008) UN doc CCPR/C/JPN/CO/5, para 30. 21 See also Concluding Observations on France (2008) UN doc CCPR/C/FRA/CO/4, para 9; Netherlands Antilles (2009) UN doc CCPR/C/NLD/CO/4, para 21. 22 Note, however, that differences in statute of limitations law in different parts of a federal State was found not to raise art 26 issues in Hesse v Australia (1087/02), para 4.2. 23 However, a similar complaint was found inadmissible in JAMB-R v Netherlands (477/91) and APL v dM v Netherlands (478/91).

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(295/88), Foin v France (666/95)); a distinction between different types of households (Neefs v Netherlands (425/90), Snijders et al v Netherlands (651/95)); differences between distinct types of employment (Bartolomeu v Portugal (1783/08), Gonçalves et al v Portugal (1783/08), Castell-Ruiz v Spain (1164/03); and differences between distinct types of landowners (Pohl v Austria (1160/03)). [23.30] The following distinctions were not found to give rise to relevant ‘grounds’ in an article 26 complaint: a distinction between the wages of prisoners and ordinary workers (Radosevic v Germany (1292/04), Novotny v Czech Republic (1778/08) (as both cases were inadmissible)); a distinction between businesses for the purposes of regulation (Castaño López v Spain (1313/04)); and a distinction between the pension schemes for widows of different types of public servants (Jongenburger-Veerman v Netherlands (1238/04)).24 In Radosevic, the HRC stated: ¶7.2. . . . The Committee considers that the author has not sufficiently substantiated, for purposes of admissibility, his claim that he was a victim of discrimination based on his status as a prisoner because he received only a small part of what he would have been paid on the labour market. In particular, he has not provided any information on the type of work that he performed during his incarceration and whether it was of a kind that is available in the labour market, nor about the remuneration paid for comparable work in the labour market. Mere reference to a certain percentage of the base amount, i.e. the average amount of benefits payable under the German statutory pensions insurance scheme, does not suffice to substantiate the alleged discriminatory discrepancy between the remuneration for his work and work performed by the regular workforce. . . .

[23.31] Toonen v Australia (488/92) concerned an allegation of, inter alia, discrimination on the basis of sexual orientation.25 The HRC found that the reference to ‘sex’ in articles 2(1) and 26 is to be taken to include sexual orientation. ‘Sexual orientation’, however, seems more properly classified as ‘an other status’, rather than as an aspect of one’s gender. In Young v Australia (941/00) and X v Colombia (1361/05), the HRC confirmed that ‘sexual orientation’ was a prohibited ground of discrimination under the Covenant [23.54].26 Concluding Observations have also indicated that the following are ‘other statuses’ that attract ICCPR non-discrimination protection: family responsibility,27 pregnancy,28 infection

25 At para 7.2. See, on the merits of Toonen, [16.50]. See also Concluding Observations on Austria (1998) UN doc CCPR/C/79/Add.103, para 13; Dominican Republic (2001) UN doc CCPR/CO/71/DOM, para 14; Namibia (2004) UN doc CCPR/CO/81/ NAM, para 22; Greece (2005) UN doc CCPR/CO/83/GRC, para 19; United States (2006) UN doc CCPR/C/ USA/CO/3/Rev.1, para 25; Barbados (2007) UN doc CCPR/C/BRB/CO/3, para 13; Japan (2008) UN doc CCPR/C/JPN/CO/5, para 29; Poland (2010) UN doc CCPR/C/POL/CO/6, para 5; Mongolia (2011) UN doc CCPR/C/MNG/CO/5, para 9; Islamic Republic of Iran (2011) UN doc CCPR/C/IRN/CO/3, para 10. However, see the dissenting opinion in X v Colombia of Messrs Amor and Tawfik Khalil. 27 Concluding Observations on Hong Kong (1996) UN doc CCPR/C/79/Add.57, para 13, repeated after the handover of Hong Kong to the People’s Republic of China in (1999) UN doc CCPR/C/79/Add.117, para 15. 28 Concluding Observations on Mexico (2010) UN doc CCPR/C/MEX/CO/5, para 7; Guatemala (2012) CCPR/C/GTM/CO/3, para 9 (both referring to pregnancy tests for women in maquiladora (special export manufacturing) industries). 24 26

The ICCPR

774 29

30

with HIV/AIDS, rural locality, gender identity,31 intersex,32 disability,33 and homelessness.34 Regarding the Russian Federation the HRC has stated:35 ¶9. The Committee is concerned about the large number of stateless and undocumented persons in the State party, in particular former Soviet citizens who were unable to acquire citizenship or nationality subsequent to the break-up of the USSR, and to regularize their status in the Russian Federation or in any other State with which they have a significant connection, and consequently remain stateless or with undetermined nationality. The Committee also notes that members of certain ethnic groups from varying regions, in particular individuals from Central Asia and the Caucasus, face problems acquiring citizenship due to complex legislation governing naturalization and obstacles posed by strict residence registration requirements (arts. 2, 3, 20 and 26). The State party should take all necessary measures to regularize the status of stateless persons on its territory by granting them a right to permanent residence and the possibility of acquiring Russian citizenship. Furthermore, the State party should consider acceding to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness and undertake the legislative and administrative reform necessary to bring its laws and procedures in line with these standards.

[23.32]

HAEDJ v THE NETHERLANDS (297/88)

The author was a conscientious objector to military service who was performing alternative civilian service. He complained of the difference between the living allowance paid to him as a performer of alternative service, and to the living allowance paid to ordinary civilians. The alleged ground of discrimination was therefore a distinction between the author’s status as a conscript (albeit one performing alternative service) and the status of ordinary civilians. ¶8.2. The Committee notes that the author claims that he is a victim of discrimination on the ground of ‘other status’ (article 26 of the Covenant in fine), because, as a conscientious objector to military service and during the period that he performed alternative service, he was not treated as a civilian but rather as a conscript and was thus ineligible for supplementary allowances under the General Assistance Act. The Committee observes, as it did with respect to communications Nos. 245/1987 (R. T. Z. v the Netherlands) and 267/1987 29 The HRC criticized Trinidad and Tobago for failing to prohibit discrimination on these grounds, along with ‘age’ and ‘sexual orientation’, in (2000) UN doc CCPR/CO/70/TTO, para 11; see also Concluding Observations on the Republic of Moldova (2009) UN doc CCPR/C/MDA/CO/2, para 12; Turkmenistan (2012) UN doc CCPR/C/TKM/CO/1, para 15. 30 Concluding Observations on Suriname (2004) UN doc CCPR/CO/80/SUR, para 19. 31 Concluding Observations on Japan (2008) UN doc CCPR/C/JPN/CO/5, para 29; Mongolia (2011) UN doc CCPR/C/MNG/CO/5, para 10; Dominican Republic (2012) CCPR/C/DOM/CO/5, para 16. 32 See Concluding Observations on Guatemala (2012) CCPR/C/GTM/CO/3, para 11. 33 See Concluding Observations on Ireland (2000) UN doc A/55/40, paras 422–51, para 29(e); Panama (2008) UN doc CCPR/C/PAN/CO/3, para 8; Sweden (2009) UN doc CCPR/C/SWE/CO/6, para 10; Poland (2010) UN doc CCPR/C/POL/CO/6, para 5; Belgium (2010) UN doc CCPR/C/BEL/ CO/5, para 11; Mongolia (2011) UN doc CCPR/C/MNG/CO/5, para 9; Dominican Republic (2012) CCPR/C/DOM/CO/5, para 9. A complaint about discrimination on the basis of disability was ruled inadmissible for failure to exhaust domestic remedies in Cziklin v Canada (741/97). 34 Concluding Observations on Australia (2009) UN doc CCPR/C/AUS/CO/5, para 18. 35 Concluding Observations (2009) UN doc CCPR/C/RUS/CO/6.

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(M. J. G. v the Netherlands), that the Covenant does not preclude the institution by States parties of compulsory national service, which entails certain modest pecuniary payments. But whether that compulsory national service is performed by way of military service or by permitted alternative service, there is no entitlement to be paid as if one were still in private civilian life. The Committee observes in this connection, as it did with respect to communication No. 218/1986 (Vos v the Netherlands) that the scope of article 26 does not extend to differences in result of the uniform application of laws in the allocation of social security benefits. In the present case, there is no indication that the General Assistance Act is not applied equally to all citizens performing alternative service. Thus the Committee concludes that the communication is incompatible with the provisions of the Covenant and inadmissible under article 3 of the Optional Protocol.

In RTZ v Netherlands (245/87) and MJG v Netherlands (267/87), the HRC ruled inadmissible complaints about the inability of conscripts to appeal summonses from military courts, compared to the ability of civilians to object to civilian summonses. In Drake and Julian v New Zealand (601/94), a complaint about distinctions between civilian and military war casualties for the purposes of pension payments was also ruled inadmissible. [23.33] Do the above decisions indicate that ‘military’ as opposed to ‘civilian’ status is never a relevant ‘other status’ for the purposes of the ICCPR, even if someone is treated unreasonably solely on the basis of his or her military status? Consider the following case: VUOLANNE v FINLAND (265/87) This case largely concerned allegations under articles 7 and 9 regarding the circumstances surrounding the author’s military detention.36 In its reasoning on the merits, the HRC stated: ¶9.3. According to article 2, paragraph 1, ‘each State party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. The all-encompassing character of the terms of this article leaves no room for distinguishing between different categories of persons, such as civilians and members of the military, to the extent of holding the Covenant to be applicable in one case but not in the other.

[23.34] Regarding the military/civilian distinction, note the following concern expressed by the HRC to Bosnia and Herzegovina:37 ¶15. . . . The Committee is also concerned that personal disability benefits received by civilian victims of war are significantly lower than those received by war veterans in both Entities (arts. 2, 7 and 26). The State party should ensure that victims of mental torture are granted victim of war status in both Entities and that the personal disability benefits received by civilian victims of

36

See [9.29] and [11.89].

37

Concluding Observations (2006) UN doc CCPR/C/BIH/CO/1.

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war are harmonized among the Entities and cantons and adjusted to the personal disability benefits received by war veterans. . . .

[23.35] It is arguable that the issue of ‘grounds’ should be considered as an aspect relating to the permissibility or the reasonableness of the impugned distinction.38 The definition of ‘discrimination’ in General Comment 18 [23.04] lends support to this idea with its reference to ‘any ground’. If so, the ‘grounds’ issue may become completely subsumed by the issue of reasonableness: an unreasonable distinction may give rise to a violation of article 26 regardless of the grounds upon which that distinction is made. ‘Grounds’ remain important to the extent that they help establish or disprove reasonableness. [23.36] The HRC may view certain grounds of distinction as inherently more suspect and deserving of greater scrutiny than other grounds.39 In other words, it seems that violations are more likely to be found with regard to some grounds of distinction than others. It seems intrinsically more important to guard against discrimination on some ‘grounds’, such as the enumerated grounds40 and ‘other statuses’ such as nationality, sexuality, age, or disability, than it is to protect against discrimination on other grounds such as the distinction between public and private school students. It is difficult, however, to ascribe common characteristics to the most important ‘grounds’. Some of the most important grounds are immutable, such as one’s race or colour. It is of course especially important that one does not suffer discrimination owing to characteristics one cannot change. However, other important grounds are inherent characteristics of one’s ego, such as one’s religion or political opinion, or even one’s ‘property’, if that term is equated with ‘wealth’ or ‘class’. Perhaps the most common characteristic of an important ‘ground’ is that the ‘ground’ describes a group which has historically suffered from unjustifiable discrimination, and is therefore especially vulnerable to such treatment. [23.37] It is arguable that the search for a distinct ground of discrimination is simplistic, particularly for those people who are members of multiple vulnerable groups. In Kell v Canada (CEDAW 19/08), the CEDAW Committee found that the victim had suffered from an act of ‘intersectional discrimination’ given her dual status as an indigenous woman suffering from domestic violence.41 The HRC has not demonstrated the same acknowledgment of the reality of intersectional discrimination. [23.38] As noted below, the HRC does not appear to require a distinct ‘ground’ for discrimination when the complaint concerns ‘equality before the law’ under article 26 [23.121].

See eg minority opinion in Nahlik v Austria (608/95). A Bayefsky, ‘The Principle of Equality and Non-Discrimination in International Law’ (1990) 11 Human Rights Law Journal 1, 18–24; Lester and Joseph, ‘Obligations of Non-Discrimination’, 589–90. 40 See, in this respect, Müller and Engelhard v Namibia (919/00), para 6.7 [23.53]. 41 At para 10.2. See also Teixiera v Brazil (CEDAW 17/08), para 7.7. 38 39

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Indirect Discrimination [23.39] Direct discrimination involves less favourable treatment of the complainant than that of someone else on prohibited grounds in comparable circumstances. Indirect discrimination occurs when a practice, rule, requirement, or condition is neutral on its face but impacts disproportionately upon particular groups.42 For example, consider the following hypothetical law: only people above six feet tall can attend university. This law constitutes direct discrimination on the basis of height. It also constitutes indirect discrimination on the basis of sex, as women tend to be shorter than men, and, as a group, are less likely to fulfil the height criterion. [23.40] The ICCPR prohibits indirect discrimination. Note the HRC’s definition of ‘discrimination’ in General Comment 18: ‘discrimination’ . . . should be understood to imply any distinction . . . based on any ground . . . which has the purpose or effect of nullifying and impairing the recognition enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms [emphasis added].

Indirect discrimination occurs when the ‘effect’ of a law is to discriminate, rather than when discrimination is a law’s ostensible ‘purpose’. [23.41] The clearest enunciation by the HRC of the proscription of indirect discrimination comes from Althammer v Austria (998/01): ¶10.2. . . . The Committee recalls that a violation of article 26 can also result from the discriminatory effect of a rule or measure that is neutral at face value or without intent to discriminate. However, such indirect discrimination can only be said to be based on the grounds enumerated in article 26 . . . if the detrimental effects of a rule or decision exclusively or disproportionately affect persons having a particular race, colour, sex, language, religion, political or other opinion, national or social origin, property birth or other status. Furthermore, rules or decisions with such an impact do not amount to discrimination if they are based on objective or reasonable grounds. . . .

[23.42]

SINGH BHINDER v CANADA (208/86)

The facts are set out immediately below: ¶1. The author of the communication, dated 9 June 1986, is Karnel Singh Bhinder, a naturalised Canadian citizen who was born in India in 1942 and emigrated to Canada in 1974. He claims to be a victim of a violation by Canada of article 18 of the International Covenant on Civil and Political Rights. A Sikh by religion, he wears a turban in his daily life and refuses to wear safety headgear during his work. This resulted in the termination of his labour contract.

The HRC found the complaint admissible, and summed up the argument in its merits decision: ¶6.1. The Committee notes that in the case under consideration legislation which, on the face of it, is neutral in that it applies to all persons without distinction is said to operate 42 Lester and Joseph, ‘Obligations of Non-Discrimination’, 575. See also HM v Sweden (CRPD 3/11), the first merits decision of the Committee on the Rights of Persons with Disabilities.

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The ICCPR

in fact in a way which discriminates against persons of the Sikh religion. The author has claimed a violation of article 18 of the Covenant. The Committee has also examined the issue in relation to article 26 of the Covenant.

Though the headgear requirement applied to all relevant labourers, it disproportionately affected Sikhs in the practice of their religion. The author, however, lost on the merits [17.31]. [23.43]

CAVALCANTI ARAUJO-JONGEN v THE NETHERLANDS (418/90)

The HRC’s somewhat confused approach to the issue of indirect discrimination was evinced in this case. The facts were as follows. Under Dutch law, the author, as an unemployed married woman, was refused unemployment benefit between August 1983 and April 1984, in circumstances where an unemployed married man would have received the benefit owing to the ‘breadwinner criterion’ in Dutch legislation at the time. Indeed, this law had been successfully challenged before the HRC in the Broeks case [23.14]. In 1985, the ‘breadwinner’ distinction was removed from the relevant legislation, with retrospective effect to 23 December 1984. This date was chosen in order to comply with a relevant European Community Directive. This was of no help to Mrs Cavalcanti. In 1991, whilst the complaint was pending before the HRC, further amending legislation was enacted. ¶5.2. The State party submits that article 13, paragraph 1, subsection 1, WWV, on which the rejection of the unemployment benefit of the author was based, was abrogated by law of 24 April 1985. In this law, however, it was laid down that the law which was in force to that date—including the controversial article 13, paragraph 1, subsection 1—remained applicable in respect of married women who had become unemployed before 23 December 1984. As these transitionary provisions were much criticised, they were abolished by Act of 6 June 1991. As a result, women who had been ineligible in the past to claim WWV benefits because of the breadwinner criterion, can claim these benefits retroactively, provided they satisfy the other requirements of the Act. One of the other requirements is that the applicant be unemployed on the date of application. ¶5.3. The State party therefore contends that, if the author had been unemployed on the date of application for the WWV benefit, she would be eligible to retroactive benefits on the basis of her unemployed status as from 1 February 1983. However, since the author had found other employment as of April 1984, she could not claim retroactive benefits under the WWV. The State party emphasises that since the amendment of the law on 6 June 1991 the obstacle to the author’s eligibility for a benefit is not the breadwinner criterion, but her failure to satisfy the other requirements under the law that apply to all, men and women alike. ¶5.4. The State party submits that, by amending the law in this respect, it has complied with the principle of equality before the law as laid down in article 26 of the Covenant.

Counsel for Mrs Cavalcanti responded: ¶6.2. Counsel submits that, under the amended law, it is still not possible for the author, who has found new employment, to claim the benefits she was denied before. In this connection,

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she points out that the author failed to apply for a benefit during the period of her unemployment because the law at that time did not grant her any right to a benefit under the WWV. The author applied for a benefit after the breadwinner-requirement for women was dropped as from 23 December 1984, but had by then found new employment. She therefore argues that the discriminatory effect of the said provision of WWV is not abolished for her, but still continues.

The HRC delivered its merits decision in favour of the State Party: ¶7.4. The Committee observes that, even if the law in force in 1983 was not consistent with the requirements of article 26 of the Covenant, that deficiency was corrected upon the retroactive amendment of the law on 6 June 1991. The Committee notes that the author argues that the amended law still indirectly discriminates against her, because it requires applicants to be unemployed at the time of application and that this requirement effectively bars her from retroactive access to benefits. The Committee finds that the requirement of being unemployed at the time of application for benefits is, as such, reasonable and objective, in view of the purposes of the legislation in question, namely to provide assistance to persons who are unemployed. The Committee therefore concludes that the facts before it do not reveal a violation of article 26 of the Covenant.

The HRC found the distinction here based on ‘present employment’ to be reasonable and objective, and therefore permissible under the Covenant. However, the HRC did not expressly consider the ‘reasonableness’ of any latent gender-based distinctions in the law. The law in fact also indirectly discriminated against married women. In order to claim retrospective unemployment benefit for a period of time before 23 December 1984, they had to be presently unemployed. No such restriction applied to married men.43 Indeed, this complaint may evince direct discrimination against married women. One could argue that the ‘breadwinner’ criterion, which had directly discriminated against married women, had merely been replaced by the criterion of ‘present employment’, which again affected only married women. The only difference was that the ‘breadwinner’ legislation expressly applied only to women. Thus, Cavalcanti is not consistent with Broeks. [23.44] The HRC’s reasoning in Cavalcanti is supported by its decisions in Vos v the Netherlands (218/86), JAMB-R v The Netherlands (477/91), and APL-v dM v the Netherlands (478/91). In these cases, ‘uniform application’ of social security laws resulted in female complainants receiving lesser social security benefits than men in the same position. The HRC should have focused more on the discriminatory effect of the relevant Dutch legislation, rather than the formally neutral application of the laws.44 [23.45]

BALLANTYNE et al v CANADA (359, 385/89)

The authors complained of a Quebec law prohibiting commercial signage in a language other than French. The HRC found no breach of article 26: ¶11.5. The authors have claimed a violation of their right, under article 26, to equality before the law; the Government of Quebec has contended that Sections 1 and 6 of Bill 178 43 See above for a discussion of the relevance and justification for applying the criterion of ‘present employment’ [23.23]. 44 Lester and Joseph, ‘Obligations of Non-Discrimination’, 576.

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are general measures applicable to all those engaged in trade, regardless of their language. The Committee notes that Sections 1 and 6 of Bill 178 operate to prohibit the use of commercial advertising outdoors in other than the French language. This prohibition applies to French speakers as well as English speakers, so that a French speaking person wishing to advertise in English, in order to reach those of his or her clientele who are English speaking, may not do so. Accordingly, the Committee finds that the authors have not been discriminated against on the ground of their language, and concludes that there has been no violation of article 26 of the Covenant.

The impugned law in Ballantyne may be an example of indirect discrimination. All of the authors were English speakers who argued that their clientele were predominantly English speakers. If the evidence had shown that English-speaking traders had far more English customers than French-speaking traders, the law would seem to have had a worse impact on those English traders. Indeed, the impugned law in Ballantyne possibly constituted direct discrimination on the basis of language, owing to its inherent partiality. The HRC’s later decision in Diergaardt v Namibia (760/97) in fact seems inconsistent with Ballantyne in this respect [23.61]. [23.46]

PRINCE v SOUTH AFRICA (1474/06)

Prince was a practising Rastafarian. He claimed that the State’s prohibition on the possession of cannabis indirectly discriminated against him as cannabis use was a tenet of his religion. The HRC agreed that cannabis use was a manifestation of his religion [17.05] but it did not uphold his article 26 complaint: ¶7.5. The author argues that he is the victim of a de facto discrimination because unlike others, he has to choose between adherence to his religion and respect for the laws of the land. The Committee recalls that a violation of article 26 may result from the discriminatory effect of a rule or measure that is neutral at face value or without intent to discriminate. However, such indirect discrimination can only be said to be based on the grounds set out in article 26 of the Covenant if the detrimental effects of a rule or decision exclusively or disproportionably affect persons having a particular race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, rules or decisions with such an impact do not amount to discrimination if they are based on objective and reasonable grounds. In the circumstances of the present case, the Committee notes that the prohibition of the possession and use of cannabis affects all individuals equally, including members of other religious movements who may also believe in the beneficial nature of drugs. Accordingly, it considers that the prohibition is based on objective and reasonable grounds. It concludes that the failure of the State party to provide an exemption for Rastafarians does not constitute differential treatment contrary to article 26.

Again, the HRC is indicating that it does not quite understand indirect discrimination. It is true that the cannabis ban applied to all individuals, including those members of other (unnamed) religions that might promote cannabis use. It is, however, unsatisfactory to dismiss a complaint of discrimination on the basis that the law might affect some other hypothetical religion equally. Furthermore, it is possible for a law to indirectly discriminate against more than one group—for example, the law could be construed as discriminating against all religions in which marijuana use was a key tenet. The HRC’s reasoning would have been more sound if it had

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found that the law and its discriminatory impact against Rastafarians were based on reasonable and objective grounds, and were therefore permissible under article 26. [23.47] For another example of a finding of indirect discrimination, see Derksen and Bakker v Netherlands (976/01) [23.79].

Permissible and Impermissible Differentiation [23.48] As confirmed in paragraph 13 of General Comment 18 [23.04], ‘reasonable and objective’ distinctions do not constitute prohibited discrimination for the purposes of the ICCPR. Hence, proportionate measures designed to achieve a legitimate objective are permissible.45 [23.49] The ‘reasonable and objective’ test is potentially very subjective. The HRC has proceeded on a case-by-case basis. Its jurisprudence in this respect cannot easily be knitted together in order accurately to predict future applications of the test. The following case extracts demonstrate examples of the test in action. RACIAL PROFILING

[23.50]

LECRAFT v SPAIN (1493/06)

This case involved apparent racial profiling. A woman was stopped for a check on her identity papers on the basis of her racial characteristics, as the relevant police force had allegedly been told to carry out such checks on ‘coloured people’. She claimed that this circumstance breached article 26. Spain justified the circumstances thus: ¶4.2. The State party also argues that the facts disclose no violation of the Covenant. Controlling illegal immigration is perfectly lawful and there is nothing in the Covenant to prevent police officers from carrying out identity checks for that purpose. This is provided for under Spanish legislation: specifically, at the time the incident took place, by article 72.1 of the enabling regulations for Organization Act No. 7/1985 on the Rights and Freedoms of Foreigners in Spain, which required foreigners to carry their passports or documents with which they entered Spain and, where appropriate, their residency permits, and to show them to the authorities upon request. The Public Security (Organization) Act and the Decree on the National Identity Document also empower the authorities to carry out identity checks and require everyone, including Spanish citizens, to show identity documents. ¶4.3. There are relatively few blacks in the Spanish population at present, and they were even fewer in number in 1992. On the other hand, one of the major sources of illegal immigration into Spain is sub-Saharan Africa. The difficult conditions in which these people often arrive in Spain—they are frequently the victims of criminal organizations—constantly attract media attention. If one accepts the legitimacy of the control of illegal immigration by the State, then one must surely also accept that police checks carried out for that purpose, with due respect and a necessary sense of proportion, may take into consideration 45

Lester and Joseph, ‘Obligations of Non-Discrimination’, 585–6.

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certain physical or ethnic characteristics as being a reasonable indication of a person’s non-Spanish origin. Furthermore, in this case the existence of an order or specific instruction to identify individuals of a given race was ruled out. The author has not been subjected to a further identity check for 15 years and it would therefore not make sense to claim a motive of discrimination. ¶4.4. The author’s identity check was conducted in a respectful manner and at a time and place where it is normal for people to be carrying identity papers. The police action took only as long as was necessary to carry out the identity check and ended when the author was found to be Spanish. All things considered, the check on the author’s identity was carried out with the necessary legal authorization, based on a reasonable and proportionate criterion and in a respectful manner; thus there was no violation of article 26 of the Covenant.

The HRC found a violation of article 26: ¶7.2. The Committee must decide whether being subjected to an identity check by the police means that the author suffered racial discrimination. The Committee considers that identity checks carried out for public security or crime prevention purposes in general, or to control illegal immigration, serve a legitimate purpose. However, when the authorities carry out such checks, the physical or ethnic characteristics of the persons subjected thereto should not by themselves be deemed indicative of their possible illegal presence in the country. Nor should they be carried out in such a way as to target only persons with specific physical or ethnic characteristics. To act otherwise would not only negatively affect the dignity of the persons concerned, but would also contribute to the spread of xenophobic attitudes in the public at large and would run counter to an effective policy aimed at combating racial discrimination. ¶7.4. In the present case, it can be inferred from the file that the identity check in question was of a general nature. The author alleges that no one else in her immediate vicinity had their identity checked and that the police officer who stopped and questioned her referred to her physical features in order to explain why she, and no one else in the vicinity, was being asked to show her identity papers. These claims were not refuted by the administrative and judicial bodies before which the author submitted her case, or in the proceedings before the Committee. In the circumstances, the Committee can only conclude that the author was singled out for the identity check in question solely on the ground of her racial characteristics and that these characteristics were the decisive factor in her being suspected of unlawful conduct. Furthermore, the Committee recalls its jurisprudence that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. In the case under consideration, the Committee is of the view that the criteria of reasonableness and objectivity were not met. Moreover, the author has been offered no satisfaction, for example, by way of apology as a remedy. ¶8. In the light of the foregoing, the Human Rights Committee . . . is of the view that the facts before it disclose a violation of article 26, read in conjunction with article 2, paragraph 3, of the Covenant.

The HRC makes it quite clear that racial profiling is a breach of article 26 of the ICCPR.46 While identity checks or, presumably, personal searches, are justifiable 46 See also Concluding Observations on the United States (2006) UN doc CCPR/C/USA/CO/3/ Rev.1, para 24; United Kingdom (2008) UN doc CCPR/C/GBR/CO/6, para 29.

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for law and order purposes, the decision to conduct such checks or searches must be based on more than simply a person’s physical and/or ethnic appearance. SEX DISCRIMINATION47

[23.51]

AUMEERUDDY-CZIFFRA et al v MAURITIUS (35/78)

The authors complained that Mauritian immigration laws discriminated against Mauritian women, as alien wives were granted automatic residence rights in Mauritius, whereas alien husbands were not.48 ¶9.2. (b) 2 (ii) 3 . . . [T]he Covenant must lead to the result that the protection of a family cannot vary with the sex of the one or the other spouse. Though it might be justified for Mauritius to restrict the access of aliens to their territory and to expel them therefrom for security reasons, the Committee is of the view that the legislation which only subjects foreign spouses of Mauritian women to those restrictions, but not foreign spouses of Mauritian men, is discriminatory with respect to Mauritian women and cannot be justified by security requirements. ¶9.2. (b) 2 (ii) 4 The Committee therefore finds that there is also a violation of articles 2 (1), 3 and 26 of the Covenant in conjunction with the right of the three married co-authors under article 23 (1).

[23.52] In Broeks v Netherlands (172/84) [23.14], the HRC rejected arguments that social security payments should differ between men and women on the sexist assumption that men are the ‘breadwinners’. ‘Breadwinner’ legislation was also held to breach article 26 in Zwaan-de-Vries v Netherlands (182/84) (a case virtually identical to Broeks) and Pauger v Austria (415/90). In the latter case, the ‘breadwinner’ assumption meant that widowed men were treated worse than widowed women under Dutch survivor benefit legislation. This was held to constitute a breach of article 26. Therefore, assumptions about the financial roles of men and women do not appear to justify prima facie sexist distinctions, at least in Western States like the Netherlands, where such assumptions are clearly out of touch with societal values. [23.53]

MÜLLER and ENGELHARD v NAMIBIA (919/00)

The authors’ complaint was as follows: ¶3.1. Mr Müller claims that he is the victim of a violation of article 26 of the Covenant, as the Aliens Act Section 9, paragraph 1 (a) prevents Mr Müller from assuming his wife’s surname without following a described procedure of application to a government service, whereas women wanting to assume their husbands’ surname may do so without following this procedure. Likewise, Ms. Engelhard claims that her surname may not be used as the family surname without complying with these same procedures, in violation of article 26. They submit that this section of the law clearly differentiates in a discriminatory way between men and women, in that women automatically may assume the surnames of their husbands on marriage, whereas men have to go through specified procedures of application. . . . 47 48

See also Jacobs v Belgium (943/00) [23.94]. See also [16.24] and [20.18].

The ICCPR

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The HRC found in favour of the authors: ¶6.7. With regard to the authors’ claim under article 26 of the Covenant, the Committee notes the fact, undisputed by the parties to the case; that section 9, paragraph 1, of the Aliens Act differentiates on the basis of sex, in relation to the right of male or female persons to assume the surname of the other spouse on marriage. The Committee reiterates its constant jurisprudence that the right to equality before the law and to the equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26. A different treatment based on one of the specific grounds enumerated in article 26, clause 2 of the Covenant, however, places a heavy burden on the State party to explain the reason for the differentiation. The Committee, therefore, has to consider whether the reasons underlying the differentiation on the basis of gender, as embodied in section 9, paragraph 1, remove this provision from the verdict of being discriminatory. ¶6.8. The Committee notes the State party’s argument that the purpose of Aliens Act section 9, paragraph 1, is to fulfil legitimate social and legal aims, in particular to create legal security. The Committee further notes the States party’s submission that the distinction made in section 9 of the Aliens Act is based on a long-standing tradition for women in Namibia to assume their husbands’ surname, while in practice men so far never have wished to assume their wives’ surname; thus the law, dealing with the normal state of affairs, is merely reflecting a generally accepted situation in Namibian society. The unusual wish of a couple to assume as family name the surname of the wife could easily be taken into account by applying for a change of surname in accordance with the procedures set out in the Aliens Act. The Committee, however, fails to see why the sex-based approach taken by section 9, paragraph 1, of the Aliens Act may serve the purpose of creating legal security, since the choice of the wife’s surname can be registered as well as the choice of the husband’s surname. In view of the importance of the principle of equality between men and women, the argument of a long-standing tradition cannot be maintained as a general justification for different treatment of men and women, which is contrary to the Covenant. To subject the possibility of choosing the wife’s surname as family name to stricter and much more cumbersome conditions than the alternative (choice of husband’s surname) cannot be judged to be reasonable; at any rate the reason for the distinction has no sufficient importance in order to outweigh the generally excluded gender-based approach. Accordingly, the Committee finds that the authors have been the victims of discrimination and violation of article 26 of the Covenant. SEXUALITY DISCRIMINATION

[23.54]

YOUNG v AUSTRALIA (941/00)

The author was in a same-sex relationship with Mr C for 38 years. Mr C, a war veteran, died in December 1998. On 1 March 1999, the author applied for a pension as a veteran’s dependant. The relevant legislation, the Veteran’s Entitlement Act, provided for pensions to a veteran’s partner only if that person was married to the relevant veteran, or had been in a de facto relationship with a veteran of the opposite sex. The author complained that the legislation discriminated against him on the grounds of his sexuality. The HRC agreed: ¶10.2. The author’s claim is that the State party’s refusal to grant him a pension on the ground that he does not meet with the definition of ‘dependant’, for having been in a

Rights of Non-discrimination

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same-sex relationship with Mr C, violates his rights under article 26 of the Covenant, on the basis of his sexual orientation. . . . [T]he Committee notes that the only reason provided by the domestic authorities in disposing of the author’s case was based on the finding that the author did not satisfy the condition of ‘living with a person of the opposite sex’. . . . ¶10.4. The Committee recalls its earlier jurisprudence that the prohibition against discrimination under article 26 comprises also discrimination based on sexual orientation. It recalls that in previous communications the Committee found that differences in the receipt of benefits between married couples and heterosexual unmarried couples were reasonable and objective, as the couples in question had the choice to marry with all the entailing consequences. It transpires from the contested sections of the [Veteran’s Entitlement Act] that individuals who are part of a married couple or of a heterosexual cohabiting couple (who can prove that they are in a ‘marriage-like’ relationship) fulfill the definition of ‘member of a couple’ and therefore of a ‘dependant’, for the purpose of receiving pension benefits. In the instant case, it is clear that the author, as a same sex partner, did not have the possibility of entering into marriage. Neither was he recognized as a cohabiting partner of Mr C, for the purpose of receiving pension benefits, because of his sex or sexual orientation. The Committee recalls its constant jurisprudence that not every distinction amounts to prohibited discrimination under the Covenant, as long as it is based on reasonable and objective criteria. The State party provides no arguments on how this distinction between same-sex partners, who are excluded from pension benefits under law, and unmarried heterosexual partners, who are granted such benefits, is reasonable and objective, and no evidence which would point to the existence of factors justifying such a distinction has been advanced. In this context, the Committee finds that the State party has violated article 26 of the Covenant by denying the author a pension on the basis of his sex or sexual orientation. . . .

[23.55] The State Party had not argued that the distinction within the legislation between same-sex couples and heterosexual couples was valid. Rather, it had argued that the author was not a war veteran’s dependant according to other criteria within the legislation. [23.56] In the following case, which has similar facts to Young, the relevant State Party gave slightly more of an explanation for the impugned provisions. X v COLOMBIA (1361/05) The author’s same-sex partner of 22 years died, and the author applied to have his partner’s pension transferred to him. Colombian law did not allow for the transfer of pensions to same-sex partners. The State Party explained that the measures were designed to protect heterosexual couples including married and de facto couples, and were not meant to harm homosexual couples. The HRC found a breach of article 26: ¶7.1. The author claims that the refusal of the Colombian courts to grant him a pension on the grounds of his sexual orientation violates his rights under article 26 of the Covenant. The Committee takes note of the State party’s argument that a variety of social and legal factors were taken into account by the drafters of the law, and not only the mere question of whether a couple live together, and that the State party has no obligation to establish a property regime similar to that established in [the relevant law] for all the different kinds of couples and social groups, who may or may not be bound by sexual or emotional ties.

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The ICCPR

It also takes note of the State party’s claim that the purpose of the rules governing this regime was simply to protect heterosexual unions, not to undermine other unions or cause them any detriment or harm. ¶7.2. The Committee notes that the author was not recognized as the permanent partner of Mr. Y for pension purposes because court rulings based on [the relevant law] found that the right to receive pension benefits was limited to members of a heterosexual de facto marital union. The Committee recalls its earlier jurisprudence that the prohibition against discrimination under article 26 comprises also discrimination based on sexual orientation. It also recalls that in previous communications the Committee found that differences in benefit entitlements between married couples and heterosexual unmarried couples were reasonable and objective, as the couples in question had the choice to marry or not, with all the ensuing consequences. The Committee also notes that, while it was not open to the author to enter into marriage with his same-sex permanent partner, the Act does not make a distinction between married and unmarried couples but between homosexual and heterosexual couples. The Committee finds that the State party has put forward no argument that might demonstrate that such a distinction between same-sex partners, who are not entitled to pension benefits, and unmarried heterosexual partners, who are so entitled, is reasonable and objective. Nor has the State party adduced any evidence of the existence of factors that might justify making such a distinction. In this context, the Committee finds that the State party has violated article 26 of the Covenant by denying the author’s right to his life partner’s pension on the basis of his sexual orientation. DISCRIMINATION ON THE GROUNDS OF CONSCIENCE OR RELIGION

[23.57]

JÄRVINEN v FINLAND (295/88)

Under new Finnish legislation, conscientious objectors to military service were required to perform alternative civilian service for 16 months, whereas those who performed military service were required to serve for only eight months. As a conscientious objector to military service, Järvinen argued that this law constituted discrimination on the basis of philosophical opinion. The rationale for the new law was as follows: ¶2.2. . . . As the convictions of conscripts applying for civilian service will no longer be examined, the existence of these convictions should be ascertained in a different manner so as not to let the new procedure encourage conscripts to seek an exemption from armed service purely for reasons of personal benefit or convenience. Accordingly, an adequate prolongation of the term of such service has been deemed the most appropriate indicator of a conscript’s convictions.

The HRC favoured the State Party on the merits: ¶6.4. In determining whether the prolongation of the term for alternative service from twelve to sixteen months by Act No. 647/85, which was applied to Mr Järvinen, was based on reasonable and objective criteria, the Committee has considered in particular the ratio legis of the Act (see para. 2.2 above) and has found that the new arrangements were designed to facilitate the administration of alternative service. The legislation was based on practical considerations and had no discriminatory purpose.

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¶6.5. The Committee is, however, aware that the impact of the legislative differentiation, works to the detriment of genuine conscientious objectors, whose philosophy will necessarily require them to accept civilian service. At the same time, the new arrangements were not merely for the convenience of the State alone. They removed from conscientious objectors the often difficult task of convincing the examination board of the genuineness of their beliefs, and they allowed a broader range of individuals potentially to opt for the possibility of alternative service. ¶6.6. In all the circumstances, the extended length of alternative service is neither unreasonable nor punitive.

The Järvinen decision seems inconsistent with the earlier decision in Gueye v France (1296/85) [23.76]. Both the challenged laws were apparently passed to facilitate administrative convenience. However, the Järvinen law was found to be valid despite the assertion in Gueye at paragraph 9.5 that ‘mere administrative inconvenience . . . cannot be invoked to justify unequal treatment’. Perhaps it is important that the victims of discrimination in Järvinen gained some advantage from the law (ie they no longer had to prove their convictions), whereas Gueye and the other Senegalese veterans obtained no advantage from the impugned French law. In any case, the HRC departed from its reasoning in Järvinen with the following decision. [23.58]

FOIN v FRANCE (666/95)

Foin alleged that he was being discriminated against on the basis of his opinions and conscience, as his 24 months of compulsory civilian service doubled the 12-month period served by those performing compulsory military service. The HRC found in favour of the author: ¶10.3. The issue before the Committee is whether the specific conditions under which alternative service had to be performed by the author constitute a violation of the Covenant. The Committee observes that under article 8 of the Covenant, States parties may require service of a military character and, in case of conscientious objection, alternative national service, provided that such service is not discriminatory. The author has claimed that the requirement, under French law, of a length of 24 months for national alternative service, rather than 12 months for military service, is discriminatory and violates the principle of equality before the law and equal protection of the law set forth in article 26 of the Covenant. The Committee reiterates its position that article 26 does not prohibit all differences of treatment. Any differentiation, as the Committee has had the opportunity to state repeatedly, must however be based on reasonable and objective criteria. In this context, the Committee recognises that the law and practice may establish differences between military and national alternative service and that such differences may, in a particular case, justify a longer period of service, provided that the differentiation is based on reasonable and objective criteria, such as the nature of the specific service concerned or the need for a special training in order to accomplish that service. In the present case, however, the reasons forwarded by the State party do not refer to such criteria or refer to criteria in general terms without specific reference to the author’s case, and are rather based on the argument that doubling the length of service was the only way to test the sincerity of an individual’s convictions. In the Committee’s view, such argument does not satisfy the requirement that the difference in treatment involved in the present case was based on reasonable and objective

788

The ICCPR

criteria. In the circumstances, the Committee finds that a violation of article 26 occurred, since the author was discriminated against on the basis of his conviction of conscience.

[23.59] The decision of the HRC appears to overturn the Järvinen decision, as was noted by a minority of dissenters, though this departure from previous jurisprudence is not explicitly recognized in that decision. Similar majority and minority decisions were reached in Maille v France (689/96) and Venier and Nicolas v France (690–91/97). [23.60]

WALDMAN v CANADA (694/96)

Waldman’s complaint concerned differing educational subsidies for schools of differing religious faiths. He described his complaint as follows: ¶1.2. The author is a father of two school-age children and a member of the Jewish faith who enrols his children in a private Jewish day school. In the province of Ontario Roman Catholic schools are the only non-secular schools receiving full and direct public funding. Other religious schools must fund through private sources, including the charging of tuition fees. . . .

The author detailed the relevant history of school funding in Ontario: ¶2.1. The Ontario public school system offers free education to all Ontario residents without discrimination on the basis of religion or on any other ground. Public schools may not engage in any religious indoctrination. Individuals enjoy the freedom to establish private schools and to send their children to these schools instead of the public schools. The only statutory requirement for opening a private school in Ontario is the submission of a ‘notice of intention to operate a private school’. Ontario private schools are neither licensed nor do they require any prior Government approval. As of 30 September 1989, there were 64,699 students attending 494 private schools in Ontario. Enrolment in private schools represents 3.3 percent of the total day school enrolment in Ontario. ¶2.2. The province of Ontario’s system of separate school funding originates with provisions in Canada’s 1867 constitution. In 1867 Catholics represented 17% of the population of Ontario, while Protestants represented 82%. All other religions combined represented 0.2% of the population. At the time of Confederation it was a matter of concern that the new province of Ontario would be controlled by a Protestant majority that might exercise its power over education to take away the rights of its Roman Catholic minority. The solution was to guarantee their rights to denominational education, and to define those rights by referring to the state of the law at the time of Confederation. ¶2.3. As a consequence, the 1867 Canadian constitution contains explicit guarantees of denominational school rights in section 93. Section 93 of the Constitution Act, 1867 grants each province in Canada exclusive jurisdiction to enact laws regarding education, limited only by the denominational school rights granted in 1867. In Ontario, the section 93 power is exercised through the Education Act. Under the Education Act every separate school is entitled to full public funding. Separate schools are defined as Roman Catholic schools. The Education Act states: ‘1. (1) ‘separate school board’ means a board that operates a school board for Roman Catholics; . . . 122. (1) Every separate school shall share in the legislative grants in like manner as a public school’. As a result, Roman Catholic schools are the only religious schools entitled to the same public funding as the public secular schools. . . .

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¶3.1. The author contends that the legislative grant of power to fund Roman Catholic schools authorised by section 93 of the Constitution Act of Canada 1867, and carried out under sections 122 and 128 of the Education Act (Ontario) violates article 26 of the Covenant. The author states that these provisions create a distinction or preference which is based on religion and which has the effect of impairing the enjoyment or exercise by all persons, on an equal footing, of their religious rights and freedoms. He argues that the conferral of a benefit on a single religious group cannot be sustained. When a right to publicly financed religious education is recognised by a State party, no differentiation should be made among individuals on the basis of the nature of their particular beliefs. The author maintains that the provision of full funding exclusively to Roman Catholic schools cannot be considered reasonable. The historical rationale for the Ontario government’s discriminatory funding practice, that of protection of Roman Catholic minority rights from the Protestant majority, has now disappeared, and if anything has been transferred to other minority religious communities in Ontario. A 1991 census is quoted as indicating that 44% of the population is Protestant, 36% is Catholic, and 8% have other religious affiliations. It is also unreasonable in view of the fact that other Canadian provinces and territories do not discriminate on the basis of religion in allocating education funding.49

The State Party defended the impugned Ontario laws as follows: ¶8.3. . . . [T]he State party explains that without the protection of the rights of the Roman Catholic minority, the founding of Canada would not have been possible and that the separate school system remained a controversial issue, at times endangering the national unity in Canada. The State party explains that the funding is seen by the Roman Catholic community as correction of a historical wrong. ¶8.4. The State party submits that there are reasonable and objective grounds for not eliminating funding to Roman Catholic separate schools in Ontario. The elimination would be perceived as undoing the bargain made at Confederation to protect the interests of a vulnerable minority in the province and would be met with outrage and resistance by the Roman Catholic community. It would also result in a certain degree of economic turmoil, including claims for compensation of facilities or lands provided for Roman Catholic schools. Further, the protection of minority rights, including minority religion and education rights, is a principle underlying the Canadian constitutional order and militates against elimination of funding for the Roman Catholic separate schools. Elimination of funding for separate schools in Ontario would further lead to pressure on other Canadian provinces to eliminate their protections for minorities within their border.

The HRC found in favour of the author in the following terms: ¶10.2. The issue before the Committee is whether public funding for Roman Catholic schools, but not for schools of the author’s religion, which results in him having to meet the full cost of education in a religious school, constitutes a violation of the author’s rights under the Covenant. ¶10.3. The State party has argued that no discrimination has occurred, since the distinction is based on objective and reasonable criteria: the privileged treatment of Roman Catholic schools is enshrined in the Constitution; as Roman Catholic schools are incorporated as a distinct part of the public school system, the differentiation is between private and 49

Different constitutional arrangements applied in Quebec and Newfoundland.

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The ICCPR

public schools, not between private Roman Catholic schools and private schools of other denominations; and the aims of the public secular education system are compatible with the Covenant. ¶10.4. The Committee begins by noting that the fact that a distinction is enshrined in the Constitution does not render it reasonable and objective. In the instant case, the distinction was made in 1867 to protect the Roman Catholics in Ontario. The material before the Committee does not show that members of the Roman Catholic community or any identifiable section of that community are now in a disadvantaged position compared to those members of the Jewish community that wish to secure the education of their children in religious schools. Accordingly, the Committee rejects the State party’s argument that the preferential treatment of Roman Catholic schools is nondiscriminatory because of its Constitutional obligation. ¶10.5. With regard to the State party’s argument that it is reasonable to differentiate in the allocation of public funds between private and public schools, the Committee notes that it is not possible for members of religious denominations other than Roman Catholic to have their religious schools incorporated within the public school system. In the instant case, the author has sent his children to a private religious school, not because he wishes a private non-Government dependent education for his children, but because the publicly funded school system makes no provision for his religious denomination, whereas publicly funded religious schools are available to members of the Roman Catholic faith. On the basis of the facts before it, the Committee considers that the differences in treatment between Roman Catholic religious schools, which are publicly funded as a distinct part of the public education system, and schools of the author’s religion, which are private by necessity, cannot be considered reasonable and objective. ¶10.6. The Committee has noted the State party’s argument that the aims of the State party’s secular public education system are compatible with the principle of nondiscrimination laid down in the Covenant. The Committee does not take issue with this argument but notes, however, that the proclaimed aims of the system do not justify the exclusive funding of Roman Catholic religious schools. It has also noted the author’s submission that the public school system in Ontario would have greater resources if the Government would cease funding any religious schools. In this context, the Committee observes that the Covenant does not oblige States parties to fund schools which are established on a religious basis. However, if a State party chooses to provide public funding to religious schools, it should make this funding available without discrimination. This means that providing funding for the schools of one religious group and not for another must be based on reasonable and objective criteria. In the instant case, the Committee concludes that the material before it does not show that the differential treatment between the Roman Catholic faith and the author’s religious denomination is based on such criteria. Consequently, there has been a violation of the author’s rights under article 26 of the Covenant to equal and effective protection against discrimination.

In order to redress the violation, Ontario has to either increase funding for all religious schools (which would have a substantial impact on the Ontario budget), permit education for all religious groups within the public school system (contrary to its prevailing secular model), or cease funding for Roman Catholic schools. The latter solution would have been politically and, in view of section 93 of the Canadian Constitution 1867, legally difficult.50 In its follow-up reply regarding 50 Amendment of s 93 could occur with the agreement of the province affected and the federal government (para 5.5). Such amendments have recently occurred in Quebec and Newfoundland. The Canadian Supreme Court has ruled that the preferential treatment granted to Roman Catholic schools

Rights of Non-discrimination

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Waldman, the Canadian government informed the HRC that the Ontario government basically had no plans to implement the Waldman decision.51 LANGUAGE DISCRIMINATION

[23.61]

DIERGAARDT v NAMIBIA (760/97)

¶3.4. . . . [C]ounsel points out that article 3 of the [Namibian] Constitution declares English to be the only official language in Namibia. Paragraph 3 of this article allows for the use of other languages on the basis of legislation by Parliament. Counsel states that seven years after independence such a law has still not been passed, and claims that this constitutes discrimination against non-English speakers. According to counsel, attempts by the opposition to have such legislation enacted have been thwarted by the Government which has declared to have no intention to take any legislative action in this matter. In this connection, counsel refers to the 1991 census, according to which only 0.8 percent of the Namibian population uses English as mother tongue. ¶3.5. As a consequence the authors have been denied the use of their mother tongue in administration, justice, education and public life. This is said to be a violation of their rights under articles 26 and 27 of the Covenant.

On this point, the HRC found in favour of the authors. As seen below, the HRC was heavily influenced by counsel’s submission of ‘a copy of a circular issued by the Regional Commissioner, Central Region, Rehoboth, dated 4 March 1992, in which the use of Afrikaans during telephone conversations with regional public authorities is explicitly excluded’. A minority found that the circular had been misconstrued. ¶10.10. The authors have . . . claimed that the lack of language legislation in Namibia has had as a consequence that they have been denied the use of their mother tongue in administration, justice, education and public life. The Committee notes that the authors have shown that the State party has instructed civil servants not to reply to the authors’ written or oral communications with the authorities in the Afrikaans language, even when they are perfectly capable of doing so. These instructions barring the use of Afrikaans do not relate merely to the issuing of public documents but even to telephone conversations. In the absence of any response from the State party the Committee must give due weight to the allegation of the authors that the circular in question is intentionally targeted against the possibility to use Afrikaans when dealing with public authorities. Consequently, the Committee finds that the authors, as Afrikaans speakers, are victims of a violation of article 26 of the Covenant.

Had Diergaardt followed Ballantyne [23.45], it is possible that no violation would have been found. The restriction on the use of Afrikaans in reply to queries applied regardless of who the queries came from. In Diergaardt, the HRC felt that this rule would have a deleterious impact on Afrikaans speakers, whereas it failed in does not breach the Canadian Charter of Rights and Freedoms, as Ontario was constitutionally bound to confer such a preference: see Reference Re Bill 30, An Act to amend the Education Act (Ont.) [1987] 1 SCR 1148; Adler v Ontario [1996] 3 SCR 609; see also Waldman at paras 2.6–2.11. 51 (2000) UN doc. A/55/40, Vol. I, para 608. In its Concluding Observations on Canada (2006) UN doc CCPR/C/CAN/CO/5, the HRC expressed concern about Canada’s negative response to its Views in Waldman, and requested that ‘an effective remedy be granted to the author eliminating discrimination on the basis of religion in the distribution of subsidies to schools . . . ’ (see para 21).

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Ballantyne to recognize that the signage law would impact disproportionately on non-French speakers. AGE DISCRIMINATION

[23.62]

LOVE v AUSTRALIA (983/01)

The author complained of his compulsory dismissal by an airline at the age of 60: ¶3. The authors allege that Australia has violated their rights to non-discrimination on the basis of age under article 26, through failing to protect them from terminations in the workplace made on this proscribed ground.

The HRC found no violation of article 26: ¶8.2. The issue to be decided by the Committee on the merits is whether the author(s) have been subject to discrimination, contrary to article 26 of the Covenant. The Committee recalls its constant jurisprudence that not every distinction constitutes discrimination, in violation of article 26, but that distinctions must be justified on reasonable and objective grounds, in pursuit of an aim that is legitimate under the Covenant. While age as such is not mentioned as one of the enumerated grounds of prohibited discrimination in the second sentence of article 26, the Committee takes the view that a distinction related to age which is not based on reasonable and objective criteria may amount to discrimination on the ground of ‘other status’ under the clause in question, or to a denial of the equal protection of the law within the meaning of the first sentence of article 26. However, it is by no means clear that mandatory retirement age would generally constitute age discrimination. The Committee takes note of the fact that systems of mandatory retirement age may include a dimension of workers’ protection by limiting the life-long working time, in particular when there are comprehensive social security schemes that secure the subsistence of persons who have reached such an age. Furthermore, reasons related to employment policy may be behind legislation or policy on mandatory retirement age. The Committee notes that while the International Labour Organisation has built up an elaborate regime of protection against discrimination in employment, mandatory retirement age does not appear to be prohibited in any of the ILO Conventions. These considerations will of course not absolve the Committee’s task of assessing under article 26 of the Covenant whether any particular arrangement for mandatory retirement age is discriminatory. ¶8.3. In the present case, as the State party notes, the aim of maximising safety to passengers, crew and persons otherwise affected by flight travel was a legitimate aim under the Covenant. As to the reasonable and objective nature of the distinction made on the basis of age, the Committee takes into account the widespread national and international practice, at the time of the author’s dismissals [sic], of imposing a mandatory retirement age of 60. In order to justify the practice of dismissals maintained at the relevant time, the State party has referred to the [International Civil Aviation Organization] regime which was aimed at, and understood as, maximising flight safety. In the circumstances, the Committee cannot conclude that the distinction made was not, at the time of Mr Love’s dismissal, based on objective and reasonable considerations. Consequently, the Committee is of the view that it cannot establish a violation of article 26. ¶8.4. In the light of the above finding that Mr Love did not suffer discrimination in violation of article 26, it is unnecessary to decide whether the dismissal was directly imputable

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to the State party, or whether the State party’s responsibility would be engaged by a failure to prevent third party discrimination.

[23.63]

ALBAREDA v URUGUAY (1637/07)

This case concerned the compulsory demotion of certain public servants over the age of 60 years. In particular, lower level civil servants were subjected to the provision while higher level public servants were not. Ultimately, this difference in treatment between the differing levels of civil servant was found to breach article 26.52 Interestingly, the HRC found that the age discrimination was acceptable: ¶9.3. . . . The Supreme Court of Uruguay mentions, as a possible ratio legis of the contested provision, the loss of reflexes and memory that might have an adverse effect on the effectiveness of staff performing the duties of first secretary, a reasoning which the Court does not find irrational. ¶9.4. The Committee takes the view that, while the imposition of a compulsory retirement age for a particular occupation does not per se constitute discrimination on the ground of age, in the case at hand that age differs for secretaries and for other category M civil servants, a distinction which has not been justified by the State party. . . .

[23.64] The HRC had previously found age discrimination in relation to civil service employment to comply with articles 25(c) and 26 in Inostroza Solís v Peru (1016/01) [22.71]. Indeed, the HRC explicitly stated in Albareda that it did not find it ‘irrational’ for Uruguay to justify the compulsory demotion of people over the age of 60 on the basis of the potential for their decline in mental and physical capacities. With due respect for the HRC, the endorsement of that reasoning is unfortunate. It is hardly the case that the majority of people over the age of 60 are incapable of continuing in their jobs, and it is a shame that the HRC appears to have endorsed such generalized discriminatory reasoning. The HRC has not yet demonstrated significant sensitivity to age discrimination.53 DISCRIMINATION IN RELATION TO PROPERTY

[23.65]

ADAM v THE CZECH REPUBLIC (586/94)

The facts are as follows. ¶2.1. The author’s father, Vlatislav Adam, was a Czech citizen, whose property and business were confiscated by the Czechoslovak Government in 1949. Mr Adam fled the country and eventually moved to Australia, where his three sons, including the author of the communication, were born. In 1985, Vlatislav Adam died and, in his last will and testament, left his Czech property to his sons. Since then, the sons have been trying in vain to have their property returned to them. ¶2.2. In 1991, the Czech and Slovak Republic enacted a law, rehabilitating Czech citizens who had left the country under communist pressure and providing for restitution of their property or compensation for the loss thereof. On 6 December 1991, the author and his 52

At para 9.4.

53

See also Marín Gómez v Spain (865/99).

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The ICCPR

brothers, through Czech solicitors, submitted a claim for restitution of their property. Their claim was rejected on the grounds that they did not fulfil the then applicable dual requirement of Act 87/91 that applicants have Czech citizenship and be permanent residents in the Czech Republic. ¶3. The author claims that the application of the provision of the law, that property be returned or its loss be compensated only when claimants are Czech citizens, makes him and his brothers victims of discrimination under article 26 of the Covenant.

The State Party submitted its defence of the impugned law: ¶9.1. The State party also endeavours to explain the broader political and legal circumstances of the case and contends that the author’s presentation of the facts is misleading. After the democratisation process begun in November 1989, the Czech and Slovak Republic and subsequently the Czech Republic have made a considerable effort to remove some of the property injustices caused by the communist regime. The endeavour to return property as stipulated in the Rehabilitation Act was in part a voluntary and moral act of the Government and not a duty or legal obligation. ‘It is also necessary to point out the fact that it was not possible and, with regard to the protection of the justified interests of the citizens of the present Czech Republic, even undesirable, to remove all injuries caused by the past regime over a period of forty years.’ ¶9.2. The precondition of citizenship for restitution or compensation should not be interpreted as a violation of the prohibition of discrimination pursuant to article 26 of the Covenant. . . .

The HRC decided in favour of Mr Adam: ¶12.5. In examining whether the conditions for restitution or compensation are compatible with the Covenant, the Committee must consider all relevant factors, including the original entitlement of the author’s father to the property in question and the nature of the confiscation. The State party itself has acknowledged that the confiscations under the Communist governments were injurious and this is the reason why specific legislation was enacted to provide for a form of restitution. The Committee observes that such legislation must not discriminate among the victims of the prior confiscations, since all victims are entitled to redress without arbitrary distinctions. Bearing in mind that the author’s original entitlement to his property by virtue of inheritance was not predicated on citizenship, the Committee finds that the condition of citizenship in Act 87/1991 is unreasonable. ¶12.6. In this context the Committee recalls its rationale in its Views on communication No. 516/1992 (Simunek et al v The Czech Republic), in which it considered that the authors in that case and many others in analogous situation had left Czechoslovakia because of their political opinions and had sought refuge from political persecution in other countries, where they eventually established permanent residence and obtained a new citizenship. Taking into account that the State party itself is responsible for the departure of the author’s parents in 1949, it would be incompatible with the Covenant to require him and his brothers to obtain Czech citizenship as a prerequisite for the restitution of their property or, in the alternative, for the payment of appropriate compensation.

The Adam majority decision essentially upheld the earlier decision of Simunek v Czech Republic (516/92). [23.66] Mr Nisuke Ando submitted a separate opinion in Adam:

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Considering the Human Rights Committee’s Views on Communication No. 516/1992 [Simunek v Czech Republic], I do not oppose the adoption by the Committee of the Views in the instant case. However, I would like to point to the following: First, under current rules of general international law, States are free to choose their economic system. As a matter of fact, when the United Nations adopted the International Covenant on Civil and Political Rights in 1966, the then Socialist States were managing planned economies under which private ownership was largely restricted or prohibited in principle. Even nowadays not a few States parties to the Covenant, including those adopting market-oriented economies, restrict or prohibit foreigners from private ownership of immovable properties in their territories. Second, consequently, it is not impossible for a State party to limit the ownership of immovable properties in its territory to its nationals or citizens, thereby precluding their wives or children of different nationality or citizenship from inheriting or succeeding to those properties. Such inheritance or succession is regulated by rules of private international law of the States concerned, and I am not aware of any universally recognised ‘absolute right of inheritance or of succession to private property’. Third, while the International Covenant on Civil and Political Rights enshrines the principle of non discrimination and equality before the law, it does not prohibit ‘legitimate distinctions’ based on objective and reasonable criteria. Neither the Covenant defines or protects economic rights as such. This means that the Human Rights Committee should exercise utmost caution in dealing with questions of discrimination in the economic field. For example, restrictions or prohibitions of certain economic rights, including the right of inheritance or succession, which are based on nationality or citizenship, may well be justified as legitimate distinctions.

Despite his obvious misgivings, Ando ‘did not oppose’ the majority decision. This was apparently due to the existence of the Simunek precedent.54 Simunek and Adam have now been followed in a long line of cases, including Blazek et al v Czech Republic (857/99), Des Fours Walderode and Kammerlander v Czech Republic (747/97), Amundson v Czech Republic (1508/06), Kriz v Czech Republic (1054/02), Marik v Czech Republic (945/00), and Kohoutek v Czech Republic (1448/06). [23.67]

DROBEK v SLOVAKIA (643/95)

In this case, the author complained that he was ineligible for restitution of property removed from his ethnic German family by the Czech government after the Second World War. At the time of his complaint, Slovak law provided for the restitution only of property removed by the Communist government. The HRC found no violation of article 26: ¶6.4. In its views on communication 516/1992 (Simunek v Czech Republic), the Committee held that the 1991 law violated the Covenant because it excluded from its application individuals whose property was confiscated after 1948 simply because they were not nationals or residents of the country after the fall of the Communist regime in 1989. The instant case differs from the views in the above case, in that the author in the present case does not 54

See also [1.78]ff on the effect of precedent on ICCPR jurisprudence.

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The ICCPR

allege discriminatory treatment in respect of confiscation of property after 1948. Instead, he contends that the 1991 law is discriminatory because it does not also compensate victims of the 1945 seizures decreed by the pre-Communist regime. ¶6.5. The Committee has consistently held that not every distinction or differentiation in treatment amounts to discrimination within the meaning of articles 2 and 26. The Committee considers that, in the present case, legislation adopted after the fall of the Communist regime in Czechoslovakia to compensate the victims of that regime does not appear to be prima facie discriminatory within the meaning of article 26 merely because, as the author contends, it does not compensate the victims of injustices allegedly committed by earlier regimes. The author has failed to substantiate such a claim with regard to articles 2 and 26.

[23.68] In Malik v Czechoslovakia (669/95) and Schlosser v Czech Republic (670/95), the authors complained that Czech law compensated victims of expropriation under the Communist regime, but not victims of inappropriate expropriation under other regimes, such as the Nazi regime that preceded the Communists. The HRC found both cases inadmissible on the basis that it was reasonable for Czech law to distinguish between victims of injustice according to the source of the injustice, as in Drobek. Compare these cases with the following case. [23.69]

BROK and BROKOVA v CZECH REPUBLIC (774/97)

In 1939 in Prague, the Nazis confiscated the property of the author’s parents because they were Jewish. In 1945, under Benes Decree No 5/1945, most property transfers effected by the Nazis on the basis of racial persecution were annulled. However, the parents’ property was nationalized prior to 1945, and the Decree did not apply to such property. The author’s complaint is outlined directly below: ¶2.4. Following the change to a democratic government at the adoption of restitution legislation, the author applied for restitution under Act No. 87/1991 as amended by Act No. 116/1994. The said law provides restitution or compensation to victims of illegal confiscation carried out for political reasons during the Communist regime (25 February 1948–1 January 1990). The law also makes provisions for restitution or compensation to victims of racial persecution during the Second World War, who have an entitlement by virtue of Decree No. 5/1945. The courts (District Court decision 26 C 49/95 of 20 November 1995 and Prague City Court decision 13 Co 34/94–29 of 28 February 1996), however, rejected the author’s claim. The District Court states in its decision that the amended Act extends the right to restitution to persons who lost their property during the German occupation and who could not have their property restituted because of political persecution, or who went through legal procedures that violated their human rights subsequent to 25 February 1948, on condition that they comply with the terms set forth in Act No. 87/1991. However, the court was of the opinion that the author was not eligible for restitution, because the property was nationalized before 25 February 1948, the retroactive cut-off date for claims under Act No. 87/1991 Section 1, paragraph 1, and Section 6. This decision was confirmed by the Prague City Court. . . .

The HRC agreed that the impugned acts breached the author’s article 26 rights: ¶7.3. These laws provide restitution or compensation to victims of illegal confiscation carried out for political reasons during the Communist regime. The law also provides for

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restitution or compensation to victims of racial persecution during the Second World War who had an entitlement under Benes Decree No. 5/1945. The Committee observes that legislation must not discriminate among the victims of the prior confiscation to which it applies, since all victims are entitled to redress without arbitrary distinctions. ¶7.4. The Committee notes that Act No. 87/1991 as amended by Act No. 116/1994 gave rise to a restitution claim of the author which was denied on the ground that the nationalization that took place in 1946/47 on the basis of Benes Decree No. 100/1945 falls outside the scope of laws of 1991 and 1994. Thus, the author was excluded from the benefit of the restitution law although the Czech nationalization in 1946/47 could only be carried out because the author’s property was confiscated by the Nazi authorities during the time of German occupation. In the Committee’s view this discloses a discriminatory treatment of the author, compared to those individuals whose property was confiscated by Nazi authorities without being subjected, immediately after the war, to Czech nationalization and who, therefore, could benefit from the laws of 1991 and 1994. Irrespective of whether the arbitrariness in question was inherent in the law itself or whether it resulted from the application of the law by the courts of the State party, the Committee finds that the author was denied his right to equal protection of the law in violation of article 26 of the Covenant.

[23.70] Prior to 1994, no Czech victims of discriminatory expropriation by non-Communist regimes were eligible for legislative restitution by the current Czech government. Therefore, they were all treated equally with each other. The HRC did not accept in Drobek, Malik, and Schlosser that their different treatment from victims of the Communist regime gave rise to an article 26 complaint. However, in Brok, some Nazi victims were entitled to compensation while others were not. In this circumstance, the HRC found that the latter group was suffering from invidious discrimination. The difference between the results of Brok and the other three cases sheds light on the nature of the non-discrimination right. Discrimination was found in Brok against a victim of a non-Communist regime even though law was in fact more favourable to such victims than in the other three cases, where no violation was found. Discrimination does not arise where people are treated equally badly. Discrimination arose in Brok as the victim was treated worse than others in a like position. [23.71]

HARALDSSON and SVEINSSON v ICELAND (1306/04)

This case concerned the allocation of fishing rights in Iceland. The fishing and harvesting of certain species without a permit was prohibited. The regime for fishing permits had the effect of privileging those with pre-existing permits, especially those awarded during a ‘reference period’ of 1980–83. The owners of fishing permits were allowed to sell them in whole or in part. The authors claimed that their fishing quota under their permits was inadequate, and they were unable to obtain an increase in their entitlement from the State’s Fisheries Agency. They were therefore forced to buy extra entitlements from other ships, which sold them at inflated prices. Iceland justified its regime thus: ¶8.4. The State party considers that the restriction of the authors’ employment did not constitute a violation of article 26. No unlawful discrimination was made between the authors

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and those to whom quota shares were allocated under article 7 of Act No. 38/1990. The differentiation between the authors who belonged to a large group of Icelandic seamen and the operators of fishing vessels was justifiable. . . . ¶8.5 With reference to the aim of the differentiation, the State party observes that important evident public interests are tied to the protection and economical utilisation of fish stocks. The State party has underwritten international legal obligations to ensure the rational utilisation of these resources, in particular under the United Nations Convention on the Law of the Sea. The danger of over-fishing in Iceland is real and imminent, due to advancement in fishing technology, higher catch yields and a growing fishing fleet. A collapse of fish stocks would have disastrous consequences on the Icelandic nation, for which fishing has been a fundamental occupation since the earliest times. Measures to prevent over-fishing by means of catch limits are a necessary element in the protection and rational utilisation of fish-stocks. Therefore, public interest demands that restrictions be imposed on the freedom of individuals to engage in commercial fishing. Such restrictions are prescribed in law in detailed fisheries legislation. The State party raises the question of how the limited resources of the nation’s fish-stock were to be divided and considers that it was impossible to allocate equal shares to all citizens. ¶8.6. The State party argues that there are reasonable and objective grounds for the decision of the Icelandic legislature to restrict and control fish catches by means of a quota system in which harvesting rights are allocated on the basis of the previous catch experience of the fishing vessels rather than by other fisheries management methods. Reference is made to the Supreme Court [of Iceland] judgement in the Valdimar case: ‘The arrangement of making catch entitlements permanent and assignable is also supported by the consideration that this makes it possible for operators to plan their activities in the long term, and to increase or decrease their catch entitlements in individual species as may suit them at any particular time. In this respect, the Act is based on the assessment that the economic benefits leading from the permanent nature of catch entitlements and the possibilities for assignment of catch entitlements and quotas will lead to gainful utilisation of the fish stocks for the benefit of the national economy.’ ¶8.7. The State party refers to Act No. 85/2002, by which a special catch fee was imposed on vessel operators for their right of access to fishing areas, this being calculated to take account of the economic performance of fisheries. The catch fee has the same effects as a special tax imposed on vessel operators. This demonstrates that the legislature is constantly examining the best way of achieving the aim of efficiently controlling fishing and in the best interests of Iceland. The Parliament always further revises fisheries management arrangements and the right to makes catches. It can also make this right subject to conditions or choose a better method of serving the public interest. ¶8.8. The State party notes that the comparison of various fisheries management systems in Iceland and abroad and the research findings of scientists in marine biology and economics have unequivocally concluded that a quota system such as the Icelandic one is the best method of achieving the economic and biological goals of modern fisheries management systems. . . . ¶8.9. The State party points out that the objective and reasonable grounds that existed when the [Individual Tranferable Quotas] system was introduced still exist. If all Icelandic citizens, on the basis of equality before the law, had an equal entitlement to begin fishing operations and to have catch quotas allocated to them for this purpose, then the basis for

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Iceland’s fisheries management system would collapse. Such a situation would undermine the system stability. The quota rights that were originally allocated on the basis of catch performance have since to a large extent passed into other ownership. Those who have subsequently acquired quotas have either bought them at their full market value or hired them. They do not constitute a ‘privileged group’. They have accepted the rules applying in Iceland’s fisheries management system. If these entitlements were suddenly reduced or removed from their owners, to be equally distributed among all those who are interested in starting fishing operations, this would constitute a gross encroachment on the rights of those who have invested in these entitlements and have a legitimate expectation that they can continue to exercise them. ¶8.10. The State party demonstrates that the consequences of laws and regulations were not excessive for the authors and thus did not violate the principle of proportionality, in accordance with article 26 of the Covenant.

The HRC disagreed and found a breach of article 26: ¶10.2. The main issue before the Committee is whether the authors, who are lawfully obliged to pay money to fellow citizens in order to acquire quotas necessary for exercising commercial fishing of certain fish species and thus to have access to such fish stocks that are the common property of the Icelandic nation, are victims of discrimination in violation of article 26 of the Covenant. . . . ¶10.3. The Committee firstly notes that the authors’ claim is based on the differentiation between groups of fishers. The first group received for free a quota share because they engaged in fishing of quota-affected species during the period between 1 November 1980 and 31 October 1983. Members of this group are not only entitled to use these quotas themselves but can sell or lease them to others. The second group of fishers must buy or rent a quota share from the first group if they wish to fish quota affected species for the simple reason that they were not owning and operating fishing vessels during this reference period. The Committee concludes that such distinction is based on grounds equivalent to those of property. ¶10.4. While the Committee finds that the aim of this distinction adopted by the State party, namely the protection of its fish stocks which constitute a limited resource, is a legitimate one, it must determine whether the distinction is based on reasonable and objective criteria. The Committee notes that every quota system introduced to regulate access to limited resources privileges, to some extent, the holders of such quotas and disadvantages others without necessarily being discriminatory. At the same time, it notes the specificities of the present case: On the one hand, the first Article of the Fisheries Management Act No 38/1990 states that the fishing banks around Iceland are common property of the Icelandic nation. On the other hand, the distinction based on the activity during the reference period which initially, as a temporary measure, may have been a reasonable and objective criterion, became not only permanent with the adoption of the Act but transformed original rights to use and exploit a public property into individual property: Allocated quotas no longer used by their original holders can be sold or leased at market prices instead of reverting to the State for allocation to new quota holders in accordance with fair and equitable criteria. The State party has not shown that this particular design and modalities of implementation of the quota system meets the requirement of reasonableness. While not required to address the compatibility of quota systems for the use of limited resources with the Covenant as such, the Committee concludes that, in the particular circumstances of the present case, the

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property entitlement privilege accorded permanently to the original quota owners, to the detriment of the authors, is not based on reasonable grounds. ¶11. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, is of the view that the facts before it disclose a violation of article 26 of the Covenant.

Therefore, the majority did not find the quota system itself to breach the ICCPR, nor the privileged position of existing permitholders per se. Rather, the HRC majority queried why the unused entitlements of existing permitholders could be onsold at market prices rather than simply reallocated by the government, presumably at lower prices. [23.72] A number of HRC members dissented in this case. Ms Palm, Mr Shearer, and Ms Antoanella Motoc stated: . . . In the State party’s opinion a change of the fisheries management system would entail serious consequences for those who have bought quota shares from the initial quota holders and risk jeopardizing the stability of the fishing industry. According to the State party it would also have consequences for the State as a whole which has a legitimate interest in preserving the stability of the fishing industry. After several unsuccessful attempts to regulate the fisheries management, the current system was put into place and it has proved its economic efficiency and sustainability. Taking into account all the factors mentioned above and the advantages which the current system offers for the fishing management in Iceland, notably the need to have a stable and robust system, as well as the disadvantages of the system for the authors i.e. the restrictions on the author’s freedom to engage in commercial fishing we find that the State party has carried out a careful balance, through its legislative and judicial processes, between the general interest and the interest of the individual fishers. Moreover we find that the distinction between the two groups of fishers is based on objective ground and is proportionate to the legitimate aim pursued. It follows that there has been no violation of article 26 in the present case.

Sir Nigel Rodley stated: The State party has drawn attention to evidence supporting its contention that its ITQ system was the most economically effective . . . and, as such, reasonable and proportionate. These are practical arguments that the authors fail adequately to engage with in the reply. . . . It was essential that they confront this issue, especially in the light of the difficulties for a non-expert international body itself to master the issues at stake and the deference to the State party’s argument that is consequently required.

Mr Iwasawa stated: . . . The Committee should be mindful of the limits of its own expertise in reviewing economic policies which had been formed carefully through democratic processes. . . . The capacity of Iceland’s fishing fleet was surpassing the yield of its fishing banks and measures became necessary to safeguard its limited natural resource. The State party has argued— quite properly—that the public interest demands that restrictions be imposed on the freedom of individuals to engage in commercial fishing in order to prevent over-fishing, as many other State parties to the Covenant have done. The establishment of permanent and transferable harvest rights was seen as necessary in the State party’s circumstances to guarantee stability

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for those who have invested in fishing operations and to make it possible for them to plan their activities in the long term. In 2002, the scheme was modified so as to impose a special catch fee for vessel operators for their rights of access to fishing areas. The State party has explained that the catch fee has the same effect as a special tax imposed on vessel operators. The current system has proved its economic efficiency and sustainability. The State party has argued that if the system were to be changed at this juncture, this would result in serious consequences for those parties that are currently active in the fishing industry and have invested in fishing operations, and possibly jeopardize the stability of the fishing industry. While fishers who had invested in fisheries operations and were owners of fishing vessels during the reference period were given a quota, other fishers are prevented from commercial fishing without purchasing or leasing a quota from holders of a quota and suffer corresponding disadvantages. However, a fishing management system must of necessity contain restrictions on the freedom of individuals to engage in commercial fishing in order to achieve its intended purpose. In view of the advantages offered by the current system, I am unable to find that the disadvantages resulting for the authors—the restrictions on their right to pursue the economic activity of their choice to the extent they desire—are disproportionate. For these reasons, I am unable to share the conclusion of the majority that the distinction made by the State party on the basis of the catch performance of individual vessels during the reference period was ‘unreasonable’ and in breach of Article 26.

Mrs Wedgwood added in dissent: . . . The grandfathering of prior industry participation remains a common practice among various states—including in the award of taxi medallions, agricultural subsidy allotments, and telecommunications spectra. Free entry into new economic sectors may be desirable, but the International Covenant on Civil and Political Rights was not a manifesto for economic deregulation. To effectively protect the important rights that fall within the aegis of the Covenant, the Committee also must remain true to the limits of its competence, both legal and practical.

[23.73] The majority and minority differed over the level of deference which should have been given to the State over the complex issue of managing its own fishing resources. After all, Iceland introduced evidence which it claimed showed that its system was designed to appropriately balance environmental and economic issues. The issues before the HRC had been considered by the Icelandic courts with regard to their compatibility with Iceland’s constitution. Bearing in mind that the HRC lacks expertise over the economic management of environmental resources, it may be justified in such an instance to defer more to the decisions of States. On the other hand, it was perhaps incumbent upon Iceland to justify the single aspect of its fishing permits scheme which attracted the finding of violation, the ability of existing permitholders to onsell them rather than for the State to reallocate them. NATIONALITY DISCRIMINATION55

[23.74]

KARAKURT v AUSTRIA (965/00)

The facts are evident from the following extracts. 55

See also Adam v Czech Republic (596/94) [23.65].

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¶3.1. The author possesses (solely) Turkish citizenship, while holding an open-ended residence permit in Austria. He is an employee of the ‘Association for the Support of Foreigners’ in Linz, which employs 10 persons in total. On 24 May 1994, there was an election for the Association’s work-council (‘Betriebsrat’) which has statutory rights and responsibilities to promote staff interests and to supervise compliance with work conditions. The author, who fulfilled the formal legal requirements of being over 19 years old and having been employed for over six months, and another employee, Mr Vladimir Polak, were both elected to the two available spaces on the work-council. ¶3.2. On 1 July 1994, Mr Polak applied to the Linz Regional Court for the author to be stripped of his elected position on the grounds that he had no standing to be a candidate for the work-council. On 15 September 1994, the Court granted the application, on the basis that the relevant labour law, that is s 53(1) Industrial Relations Act (Arbeitsverfassungsgesetz), limited the entitlement to stand for election to such work-councils to Austrian nationals or members of the European Economic Area (EEA). Accordingly, the author, satisfying neither criteria, was excluded from standing for the work-council. ¶4.1. The author contends that s 53(1) of the Act and the State party’s Courts’ decisions applying that provision violate his rights to equality before the law and to be free of discrimination, contained in article 26 of the Covenant. . . . The author contends that the distinction made in the State party’s law regarding eligibility to be elected to a work-council as between Austrian/EEA nationals and other nationals has no rational or objective foundation. . . .

The State Party responded as follows: ¶5.5. . . . [T]he State party submits that, if the Committee reaches an assessment of whether the difference in treatment between the author and Austrian/EEA nationals is justified, the differentiation is based on reasonable and objective grounds. The State party argues that the privilege accorded EEA nationals is the result of an international law obligation entered into by the State party on the basis of reciprocity, and pursues the legitimate aim of abolishing differences in treatment of workers within European Community/EEA Member States. The State party refers to the jurisprudence of the Committee [the Van Oord decision at [23.28]] for the proposition that a privileged position of members of certain states created by an agreement of international law is permissible from the perspective of article 26. The Committee observed that creating distinguishable categories of privileged persons on the basis of reciprocity operated on a reasonable and objective basis.

The HRC found in favour of the author: ¶8.4. In the present case, the State party has granted the author, a non-Austrian/EEA [European Economic Area] national, the right to work in its territory for an open-ended period. The question therefore is whether there are reasonable and objective grounds justifying exclusion of the author from a close and natural incident of employment in the State party otherwise available to EEA nationals, namely the right to stand for election to the relevant work-council, on the basis of his citizenship alone. Although the Committee had found in one case (N°. 658/1995, Van Oord v The Netherlands) [23.28] that an international agreement that confers preferential treatment to nationals of a State party to that agreement might constitute an objective and reasonable ground for differentiation, no general rule can be drawn therefrom to the effect that such an agreement in itself constitutes a sufficient ground with regard to the requirements of article 26 of the Covenant. Rather, it is necessary to judge every case on its own facts. With regard to the case at hand, the Committee has to

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take into account the function of a member of a work council, i.e., to promote staff interests and to supervise compliance with work conditions (see para. 3.1). In view of this, it is not reasonable to base a distinction between aliens concerning their capacity to stand for election for a work council solely on their different nationality. Accordingly, the Committee finds that the author has been the subject of discrimination in violation of article 26.

[23.75]

BORZOV v ESTONIA (1136/02)

The author had served in the Soviet military from 1967 to 1986 and was stationed in Estonia before he was discharged for health reasons. After the breakup of the USSR, he applied for citizenship in Estonia in 1994. He was refused on the grounds of his former employment in a foreign government’s military services. He claimed that the refusal breached article 26. Estonia justified his exclusion on national security grounds. The HRC found no violation: ¶7.3. . . . Whereas articles 19, 21 and 22 of the Covenant establish a criterion of necessity in respect of restrictions based on national security, the criteria applicable under article 26 are more general in nature, requiring reasonable and objective justification and a legitimate aim for distinctions that relate to an individual’s characteristics enumerated in article 26, including ‘other status’. The Committee accepts that considerations related to national security may serve a legitimate aim in the exercise of a State party’s sovereignty in the granting of its citizenship, at least where a newly independent state invokes national security concerns related to its earlier status. ¶7.4 In the present case, the State party concluded that a grant of citizenship to the author would raise national security issues generally on account of the duration and level of the author’s military training, his rank and background in the armed forces of the then USSR. The Committee notes that the author has a residence permit issued by the State party and that he continues to receive his pension while living in Estonia. Although the Committee is aware that the lack of Estonian citizenship will affect the author’s enjoyment of certain Covenant rights, notably those under article 25, it notes that neither the Covenant nor international law in general spells out specific criteria for the granting of citizenship through naturalization, and that the author did enjoy a right to have the denial of his citizenship application reviewed by the courts of the State party. Noting, furthermore, that the role of the State party’s courts in reviewing administrative decisions, including those decided with reference to national security, appears to entail genuine substantive review, the Committee concludes that the author has not made out his case that the decision taken by the State party with respect to the author was not based on reasonable and objective grounds. Consequently, the Committee is unable, in the particular circumstances of this case, to find a violation of article 26 of the Covenant.

Borzov had argued that the denial of citizenship by Estonia, coupled with the dissolution of the USSR, had rendered him stateless. It is not clear on the facts of the case whether he was entitled to citizenship from any other country. In any case, the fact of Borzov’s potential statelessness was not explicitly taken into account in the HRC’s merits decision, indicating that it was an irrelevant consideration, for the purposes of Estonia’s duties under the ICCPR, in Estonia’s consideration of his citizenship application.56 56

See also Concluding Observations on Russia excerpted at [23.31].

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A combination of factors worked against a finding in favour of Borzov in this case. First, it seems that States have a fair degree of latitude in deciding whether to grant citizenship to aliens, particularly when national security grounds considerations are in play. Second, the HRC was not minded to interfere with the decisions of local courts, which had engaged in a genuine and substantive review of the decisions which denied citizenship to Borzov. The Borzov decision was upheld in Sipin v Estonia (1423/05), which involved very similar facts to Borzov, and Tsarjov v Estonia (1223/03), where permanent residency was refused to a former member of the Soviet secret services (the KGB). [23.76]

GUEYE et al v FRANCE (196/85)

This communication also concerned an allegation of discrimination on the basis of nationality: ¶9.2. The authors are retired soldiers of Senegalese nationality who served in the French Army prior to the independence of Senegal in 1960. Pursuant to the Code of Military Pensions of 1951, retired members of the French Army, whether French or Senegalese, were treated equally. Pension rights of Senegalese soldiers were the same as those of French soldiers until a new law, enacted in December 1974, provided for different treatment of the Senegalese. Law No. 79/1102 of 21 December 1979 further extended to the nationals of four States formerly belonging to the French Union, including Senegal, the regime referred to as ‘crystallisation’ of military pensions that had already applied since 1 January 1961 to the nationals of other States concerned. . . .

The effect of the ‘crystallization’ legislation was to freeze Senegalese veterans’ pensions at the rate paid on 1 January 1975. No such freeze applied to pensions for French veterans. ¶9.3. The main question before the Committee is whether the authors are victims of discrimination within the meaning of article 26 of the Covenant or whether the differences in pension treatment of former members of the French Army, based on whether they are French nationals or not, should be deemed compatible with the Covenant. In determining this question, the Committee has taken into account the following considerations. ¶9.4. The Committee has noted the authors’ claim that they have been discriminated against on racial grounds, that is, one of the grounds specifically enumerated in article 26. It finds that there is no evidence to support the allegation that the State party has engaged in racially discriminatory practices vis-a-vis the authors. It remains, however, to be determined whether the situation encountered by the authors falls within the purview of article 26. The Committee recalls that the authors are not generally subject to French jurisdiction, except that they rely on French legislation in relation to the amount of their pension rights. It notes that nationality as such does not figure among the prohibited grounds of discrimination listed in article 26, and that the Covenant does not protect the right to a pension, as such. Under article 26, discrimination in the equal protection of the law is prohibited on any grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. There has been a differentiation by reference to nationality acquired upon independence. In the Committee’s opinion, this falls within the reference to ‘other status’ in the second sentence of article 26. The Committee takes into

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account, as it did in communication No. 182/1984 [Zwaan-de-Vries v The Netherlands], that ‘the right to equality before the law and to equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26’. ¶9.5. In determining whether the treatment of the authors is based on reasonable and objective criteria, the Committee notes that it was not the question of nationality which determined the granting of pensions to the authors but the services rendered by them in the past. They had served in the French Armed Forces under the same conditions as French citizens; for 14 years subsequent to the independence of Senegal they were treated in the same way as their French counterparts for the purpose of pension rights, although their nationality was not French but Senegalese. A subsequent change in nationality cannot by itself be considered as sufficient justification for different treatment, since the basis for the grant of the pension was the same service which both they and the soldiers who remained French had provided. Nor can differences in the economic, financial and social conditions as between France and Senegal be invoked as a legitimate justification. If one compared the case of retired soldiers of Senegalese nationality living in Senegal with that of retired soldiers of French nationality in Senegal, it would appear that they enjoy the same economic and social conditions. Yet, their treatment for the purpose of pension entitlements would differ. Finally, the fact that the State party claims that it can no longer carry out checks of identity and family situation, so as to prevent abuses in the administration of pension schemes cannot justify a difference in treatment. In the Committee’s opinion, mere administrative inconvenience or the possibility of some abuse of pension rights cannot be invoked to justify unequal treatment. The Committee concludes that the difference in treatment of the authors is not based on reasonable and objective criteria and constitutes discrimination prohibited by the Covenant. DISCRIMINATION ON GROUNDS OF MARITAL STATUS

[23.77]

DANNING v THE NETHERLANDS (180/84)

This complaint concerned differences in disability benefits for married beneficiaries as opposed to those who lived in a ‘common law marriage’. The Dutch government explained the distinction between married and unmarried couples in Dutch disability legislation: ¶8.4. With regard to the concept of discrimination in article 26 of the Covenant, the State party explains the distinctions made in Dutch law as follows: In the Netherlands, the fact that people live together as a married or unmarried couple has long been considered a relevant factor to which certain legal consequences may be attached. Persons living together as unmarried cohabitants have a free choice of whether or not to enter into marriage, thereby making themselves subject either to one set of laws or to another. The differences between the two are considerable; the cohabitation of married persons is subject to much greater legal regulation than is the cohabitation of unmarried persons. . . .

The HRC decided in favour of the Netherlands: ¶14. . . . In the light of the explanations given by the State party with respect to the differences made by Netherlands legislation between married and unmarried couples . . . , the

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Committee is persuaded that the differentiation complained of by Mr Danning is based on objective and reasonable criteria. The Committee observes, in this connection, that the decision to enter into a legal status by marriage, which provides, in Netherlands law, both for certain benefits and for certain duties and responsibilities, lies entirely with the cohabiting persons. By choosing not to enter into marriage, Mr Danning and his cohabitant have not, in law, assumed the full extent of the duties and responsibilities incumbent on married couples. Consequently, Mr Danning does not receive the full benefits provided for in Netherlands law for married couples. The Committee concludes that the differentiation complained of by Mr Danning does not constitute discrimination in the sense of article 26 of the Covenant.

[23.78] Similar decisions were reached in Sprenger v the Netherlands (395/90) (regarding differences in Dutch unemployment benefit legislation between married and unmarried couples) and Hoofdman v the Netherlands (602/94) (regarding differences in survivors’ benefits between married and unmarried couples). However, note Mrs Evatt’s reluctant concurring opinion in Hoofdman: While accepting the Committee’s decision on this matter, I would like to emphasise that the State party has accepted that cohabitees are to be considered as a family unit for some purposes. This factors needs to be taken into account in examining whether the grounds put forward for maintaining the distinction between married couples and cohabitees are reasonable and objective in regard to the benefit in question. In that regard, I do not find the arguments of the State party based on legal consequences of marriage or inheritance law to be convincing or of particular relevance in regard to the granting of a benefit designed to alleviate, on a temporary basis, the loss of a partner by death. For distinctions between family groups to be regarded as reasonable and objective, they should be coherent and have regard to social reality.

Mrs Evatt’s opinion alludes to the fact that ‘reasonable’ distinctions can become unreasonable over time. For example, the ‘breadwinner’ distinction between men and women was probably once ‘reasonable’ for the purposes of determining pension entitlements in the Netherlands. Cases such as Broeks and Pauger have confirmed that this distinction is now outmoded and out of step with Dutch social reality [23.14]. Mrs Evatt in Hoofdman warned that the prevailing discrimination against de facto couples in Dutch welfare law in the 1990s was also falling out of step with Dutch social mores, and was thus close to crossing the line between ‘reasonable’ and unreasonable, impermissible discrimination.57 [23.79]

DERKSEN and BAKKER v NETHERLANDS (976/01)

This case concerned the denial of a survivor’s pension to the author and her child after the death of her unmarried male partner. The State party had in fact amended its legislation to provide for such benefits, but the amendment did not benefit the author as her partner died before that legislation came into force on 1 July 1996. The HRC found no violation in regard to the mother, but it did find a violation with regard to the daughter: 57 Compare the Dutch government’s arguments in Broeks at para 8.3 [23.14] and the separate opinion in Sprenger [23.19].

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¶9.2. The first question before the Committee is whether the author of the communication is a victim of a violation of article 26 of the Covenant, because the new legislation which provides for equal benefits to married and unmarried dependants whose partner has died is not applied to cases where the unmarried partner has died before the effective date of the new law. The Committee recalls its jurisprudence concerning earlier claims of discrimination against the Netherlands in relation to social security legislation. The Committee reiterates that not every distinction amounts to prohibited discrimination under the Covenant, as long as it is based on reasonable and objective criteria. The Committee recalls that it has earlier found that a differentiation between married and unmarried couples does not amount to a violation of article 26 of the Covenant, since married and unmarried couples are subject to different legal regimes and the decision whether or not to enter into a legal status by marriage lies entirely with the cohabitating persons. By enacting the new legislation the State party has provided equal treatment to both married and unmarried cohabitants for purposes of surviving dependants’ benefits. Taking into account that the past practice of distinguishing between married and unmarried couples did not constitute prohibited discrimination, the Committee is of the opinion that the State party was under no obligation to make the amendment retroactive. The Committee considers that the application of the legislation to new cases only does not constitute a violation of article 26 of the Covenant. ¶9.3 The second question before the Committee is whether the refusal of benefits for the author’s daughter constitutes prohibited discrimination under article 26 of the Covenant. The State party has explained that it is not the status of the child that determines the allowance of benefits, but the status of the surviving parent of the child, and that the benefits are not granted to the child but to the parent. The author, however, has argued that, even if the distinction between married and unmarried couples does not constitute discrimination because different legal regimes apply and the choice lies entirely with the partners whether to marry or not, the decision not to marry cannot affect the parents’ obligations towards the child and the child has no influence on the parents’ decision. The Committee recalls that article 26 prohibits both direct and indirect discrimination, the latter notion being related to a rule or measure that may be neutral on its face without any intent to discriminate but which nevertheless results in discrimination because of its exclusive or disproportionate adverse effect on a certain category of persons. Yet, a distinction only constitutes prohibited discrimination in the meaning of article 26 of the Covenant if it is not based on objective and reasonable criteria. In the circumstances of the present case, the Committee observes that under the earlier [law] the children’s benefits depended on the status of the parents, so that if the parents were unmarried, the children were not eligible for the benefits. However, under the new [law], benefits are being denied to children born to unmarried parents before 1 July 1996 while granted in respect of similarly situated children born after that date. The Committee considers that the distinction between children born, on the one hand, either in wedlock or after 1 July 1996 out of wedlock, and, on the other hand, out of wedlock prior to 1 July 1996, is not based on reasonable grounds. In making this conclusion the Committee emphasizes that the authorities were well aware of the discriminatory effect of the [old law] when they decided to enact the new law aimed at remedying the situation, and that they could have easily terminated the discrimination in respect of children born out of wedlock prior to 1 July 1996 by extending the application of the new law to them. The termination of ongoing discrimination in respect of children who had had no say in whether their parents chose to marry or not, could have taken place with or without retroactive effect. However, as the communication has been declared admissible only in respect of the period after 1 July 1996, the Committee merely addresses the failure of the State party

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to terminate the discrimination from that day onwards which, in the Committee’s view, constitutes a violation of article 26 in regard of Kaya Marcelle Bakker in respect of whom half orphan’s benefits through her mother was denied under the ANW.

Hence, the HRC persisted in a decision in 2004 in finding that a distinction between married and unmarried couples was permissible. However, a distinction between the children of married and unmarried couples, for the purposes of the receipt of benefits, was not permissible. In dissent, Sir Nigel Rodley pointed out that the relevant benefits flowed to the surviving partner rather than the child: there was no obligation for that parent to spend any part of the pension on the child at all. It is submitted that Sir Nigel Rodley adopted too narrow a definition of discrimination here. It is true that the mother could spend a survivors’ benefit as she wished. However, the benefit varied according to a survivor’s number of dependants, so it was reasonable to find that dependants of ineligible people suffered indirect harm from that person’s ineligibility. MISCELLANEOUS ALLEGED GROUNDS OF DISCRIMINATION

[23.80] As foreshadowed above [23.36], some decisions regarding the reasonableness of a distinction have been linked to the alleged ground of discrimination. This trend is evident in the following cases.58 [23.81]

BLOM v SWEDEN (191/85)

The facts are evident from the HRC’s merits decision:59 ¶10.2. The main issue before the Committee is whether the author of the communication is a victim of a violation of article 26 of the Covenant because of the alleged incompatibility of the Swedish regulations on education allowances with that provision. In deciding whether or not the State party violated article 26 by refusing to grant the author, as a pupil of a private school, an education allowance for the school year 1981/82, whereas pupils of public schools were entitled to education allowances for that period, the Committee bases its findings on the following observations. ¶10.3. The State party’s educational system provides for both private and public education. The State party cannot be deemed to act in a discriminatory fashion if it does not provide the same level of subsidy for the two types of establishment, when the private system is not subject to State supervision. . . .

Blom can be distinguished from Waldman v Canada (694/96) [23.60], in that the impugned distinction in Waldman was the enumerated ground of religion. The impugned distinction in Blom was between students at private schools and

58 See also Oulajin and Kaiss v Netherlands (406, 426/90); Neefs v Netherlands (425/90); Somers v Hungary (566/93); Lindgren et al v Sweden (298–99/88), para 10.4; Debreczeny v Netherlands (500/92), para 9.4; Drake and Julian v New Zealand (601/94), para 8.5; García Pons v Spain (454/91), para 9.5. See also Bayefsky, ‘The Principle of Equality and Non-Discrimination in International Law’, 18–24. 59 See also Lindgren et al v Sweden (298–99/88), para 10.3.

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students at public schools. It is hardly surprising that the HRC took the former distinction more seriously. [23.82]

SNIJDERS et al v NETHERLANDS (651/95)

The authors were all residents of a Dutch nursing home. They claimed that they suffered discrimination on the basis of their single status. They had to make a higher contribution towards their hospital stay than was the case of a couple, where only one person in the couple was hospitalized. The HRC found that the distinction was justifiable and not in breach of article 26: ¶8.4. . . . the Committee has taken note of the State party’s explanation that the distinction in the contribution is based upon the factual difference that married or cohabitating persons leave behind a partner who continues to live in what was their common household and therefore does not save the same amount of money as does a single person in residential care. For this reason they are requested to pay a fixed contribution [and a lesser sum]. The Committee considers that this distinction, based on a presumption that has its basis in the factual circumstances of life of persons benefiting from the scheme, is objective and reasonable. Therefore it does not constitute a violation of article 26 of the Covenant.

Affirmative Action [23.83] Discrimination in a society may be so firmly entrenched that ‘positive’ or ‘affirmative’ action must be taken in order properly to redress the historical disadvantage suffered by some groups. Affirmative action denotes positive steps taken by a State to improve the status of disadvantaged groups. A classic affirmative action policy is ‘positively’ to discriminate in favour of disadvantaged groups. This circumstance is discussed in the next section. However, ‘affirmative action’ is not synonymous with ‘positive’ or ‘reverse’ discrimination. For example, the provision of ramps to allow disabled people public access is a positive measure which redresses disadvantage for disabled people. It is not, however, a measure of ‘positive discrimination’, as the measure does not discriminate against able-bodied people.60 Similarly, provision of more childcare facilities would tend to redress discrimination against mothers regarding access to employment. However, such provision does not discriminate against men. [23.84] The HRC has confirmed that affirmative action is certainly permissible under the Covenant, and may have indicated that, in certain circumstances, it is mandatory for States to take such action. GENERAL COMMENT 18 ¶10. The Committee also wishes to point out that the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For 60

Lester and Joseph, ‘Obligations of Non-Discrimination’, 582.

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example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions.

GENERAL COMMENT 3 General Comment 3 deals with State obligations under article 2 ICCPR: ¶1. . . . The Committee considers it necessary to draw the attention of States parties to the fact that the obligation under the Covenant is not confined to the respect of human rights, but that States parties have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdiction. This aspect calls for specific activities by the States parties to enable individuals to enjoy their rights. . . .

GENERAL COMMENT 4 General Comment 4 addresses State obligations under article 3: ¶2. Firstly, article 3, as articles 2 (1) and 26 in so far as those articles primarily deal with the prevention of discrimination on a number of grounds, among which sex is one, requires not only measures of protection but also affirmative action designed to ensure the positive enjoyment of rights. This cannot be done simply by enacting laws. Hence, more information has generally been required regarding the role of women in practice with a view to ascertaining what measures, in addition to purely legislative measures of protection, have been or are being taken to give effect to the precise and positive obligations under article 3 and to ascertain what progress is being made or what factors or difficulties are being met in this regard.

GENERAL COMMENT 28 This comment concerns ‘Equality of Rights between Men and Women’: ¶3. The obligation to ensure to all individuals the rights recognized in the Covenant, established in articles 2 and 3 of the Covenant, requires that State parties take all necessary steps to enable every person to enjoy those rights. These steps include the removal of obstacles to the equal enjoyment each of such rights, the education of the population and of state officials in human rights and the adjustment of domestic legislation so as to give effect to the undertakings set forth in the Covenant. The State party must not only adopt measures of protection but also positive measures in all areas so as to achieve the effective and equal empowerment of women. States parties must provide information regarding the actual role of women in society so that the Committee may ascertain what measures, in addition to legislative provisions, have been or should be taken to give effect to these obligations, what progress has been made, what difficulties are encountered and what steps are being taken to overcome them.

[23.85] Affirmative action is permitted under article 1(4) ICERD, and is apparently mandatory ‘when the circumstances so warrant’ under article 2(2) ICERD. In General Recommendation 14, the CERD Committee identifies a pertinent positive duty, that training be provided to ensure awareness amongst law enforcement officers of the social evil of racial discrimination. Affirmative action seems permissible rather than mandatory under article 4 CEDAW. However, other, more

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specific, CEDAW provisions such as article 12(2) seem to impose mandatory obligations to undertake affirmative action. [23.86] The HRC has given some indication of the forms that affirmative action may legitimately take, and the situations in which such action should be taken, in cases and Concluding Observations excerpted in the following sections.

Reverse Discrimination [23.87]

GENERAL COMMENT 18

¶10. . . . [Affirmative] action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.

[23.88] In Stalla Costa v Uruguay (198/1985), the author complained that he was denied access to the Uruguayan public service on an equal basis as Uruguayan law gave preferences to persons who had been dismissed from the public service by the previous government for political reasons [22.65]. The HRC found that there was no violation of article 26, as the Uruguayan law provided a ‘measure of redress’ to persons who had previously suffered from discrimination. Therefore, the law was a permissible measure of positive or reverse discrimination. [23.89]

BALLANTYNE et al v CANADA (359, 385/89)

This case concerned a complaint about laws in Quebec which banned advertising in a language other than French. The government of Quebec, in a submission transmitted through the State Party, argued that these measures were necessary in order to protect the status of the French language [18.39]. In other words, Quebec argued that the laws constituted affirmative measures designed to protect a vulnerable group, French speakers. Counsel for the authors opposed this argument: ¶9.6. In a further comment, counsel to Mr McIntyre reiterates that Bill No. 178 violates fundamental rights protected by the Covenant. He argues that while Quebec has pointed to figures which show a slow decline in the use of French across Canada, it omitted to point out that, in Quebec, French has been gaining ground on English and the English community is in decline. Furthermore, while Quebec has portrayed the 1982 constitutional amendments as an attack on the French language, it can on the contrary be argued that Section 23 of the amended Charter of Rights and Freedoms has been particularly effective in assisting the francophone population outside Quebec. ¶9.7. . . . Furthermore, although French minorities in the rest of Canada have often been treated unfairly in the past, this situation is now improving. As a result, counsel denies that historical or legal arguments would justify the restrictions imposed by Bill No. 178 in the light of articles 19, 26 or 27 of the Covenant. ¶9.8. Counsel . . . reiterates that there is no connection between the contested legislative provisions and any rational defence or protection of the French language.

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Whilst rejecting Ballantyne’s claim under article 26 [23.45], the HRC rejected the affirmative action argument as a defence to a complaint regarding the ICCPR right of freedom of expression.61 The HRC impliedly accepted the counter-arguments of the authors’ counsel. [23.90] In Stalla Costa, the HRC concluded that the measure of affirmative action was proportionate to the end of delivering justice to people persecuted under a previous regime. In Ballantyne, the HRC concluded that the affirmative action measure was disproportionate to its ends; historical discrimination against francophone Québecois did not justify the law in question. As with other distinctions, the permissibility of affirmative action measures is judged by reference to the ‘reasonable and objective’ test. [23.91]

WALDMAN v CANADA (694/96)

As noted above, the impugned distinction concerned preferential treatment conferred upon Roman Catholic schools compared to other minority religious schools in Ottawa [23.60]. The HRC found that the impugned laws constituted discrimination between Roman Catholics and other minority religions, contrary to article 26. Mr Scheinin, in a separate concurring opinion, stated: ¶5. When implementing the Committee’s views in the present case the State party should in my opinion bear in mind that article 27 imposes positive obligations for States to promote religious instruction in minority religions, and that providing such education as an optional arrangement within the public education system is one permissible arrangement to that end. Providing for publicly funded education in minority languages for those who wish to receive such education is not as such discriminatory, although care must of course be taken that possible distinctions between different minority languages are based on objective and reasonable grounds. The same rule applies in relation to religious education in minority religions. In order to avoid discrimination in funding religious (or linguistic) education for some but not all minorities States may legitimately base themselves on whether there is a constant demand for such education. For many religious minorities the existence of a fully secular alternative within the public school system is sufficient, as the communities in question wish to arrange for religious education outside school hours and outside school premises. And if demands for religious schools do arise, one legitimate criterion for deciding whether it would amount to discrimination not to establish a public minority school or not to provide comparable public funding to a private minority school is whether there is a sufficient number of children to attend such a school so that it could operate as a viable part in the overall system of education. In the present case this condition was met.62 Consequently, the level of indirect public funding allocated to the education of the author’s children amounted to discrimination when compared to the full funding of public Roman Catholic schools in Ontario.

The preferential treatment of Roman Catholics arose from a historical agreement, enshrined in the Canadian Constitution, to protect their culture in view 61

See also Mr Ndiaye’s dissent at [24.51]. The author was Jewish. Clearly there was a sufficient demand for Jewish schools in view of Ontario’s substantial Jewish population. 62

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of their minority status at confederation (compared to the Protestant majority). The Waldman decision indicates that States cannot confer preferences to protect one minority group, even if such preferences were once historically justifiable, without conferring similar preferences on other comparable minority groups. In other words, States must not discriminate with regard to comparable groups when implementing affirmative action programmes. [23.92] Both ICERD (article 2(2)) and CEDAW (article 4) specify that ‘the maintenance of unequal or separate standards’ for different groups must be discontinued once the objectives of equality of opportunity and treatment have been met. [23.93] ‘Reverse’ or ‘positive discrimination’ programmes are designed to benefit members of disadvantaged groups. A common reverse discrimination measure is the imposition of quotas for certain groups in certain institutions. The HRC has expressly approved a constitutional amendment in India that reserves one-third of seats in elected local bodies for women and the practice of reserving elected positions for members of certain tribes and castes.63 The issue of quotas arose in the following case. [23.94]

JACOBS v BELGIUM (943/00)

This case concerned quotas in the Belgian High Council of Justice. This institution was composed of 44 members, made of two Colleges comprising 22 French speaking and 22 Flemish. Each college was made up of 11 judicial positions and 11 non-judicial positions. The author was a man who unsuccessfully sought a non-judicial position in the Flemish college. Belgian law stipulated that at least four members of each sex had to be included within those 11 positions. The author claimed that the gender quota discriminated against him in breach of the ICCPR’s non-discrimination provisions including articles 2, 3, 25(c) [22.67], and 26. In support, he noted that a second call for applicants had to be made for one of the positions, presumably because there were not enough qualified female applicants. The HRC found no violation. While its reasoning largely concerns article 25, the same considerations apply to article 26: ¶9.3. The Committee recalls that, under article 25(c) of the Covenant, every citizen shall have the right and opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions, to have access, on general terms of equality, to public service in his or her country. In order to ensure access on general terms of equality, the criteria and processes for appointment must be objective and reasonable. State parties may take measures in order to ensure that the law guarantees to women the rights contained in article 25 on equal terms with men. The Committee must therefore determine whether, in the case before it, the introduction of a gender requirement constitutes a violation of article 25 of the Covenant by virtue of its discriminatory nature, or of other provisions of the

63 Concluding Observations on India (1998) UN doc CCPR/C/79/Add.81, para 10; see also Bosnia and Herzegovina (2006) UN doc CCPR/C/BIH/CO/1, para 11; Japan (2008) UN doc CCPR/C/JPN/ CO/5, para 12; Jordan (2010) UN doc CCPR/C/JOR/CO/4, para 19.

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Covenant concerning discrimination, notably articles 2 and 3 of the Covenant, as invoked by the author, or whether such a requirement is objectively and reasonably justifiable. The question in this case is whether there is any valid justification for the distinction made between candidates on the grounds that they belong to a particular sex. ¶9.4. In the first place, the Committee notes that the gender requirement was introduced by Parliament under the terms of the Act of 20 July 1990 on the promotion of a balance between men and women on advisory bodies. The aim in this case is to increase the representation of and participation by women in the various advisory bodies in view of the very low numbers of women found there. On this point, the Committee finds the author’s assertion that the insufficient number of female applicants in response to the first call proves there is no inequality between men and women to be unpersuasive in the present case; such a situation may, on the contrary, reveal a need to encourage women to apply for public service on bodies such as the High Council of Justice, and the need for taking measures in this regard. In the present case, it appears to the Committee that a body such as the High Council of Justice could legitimately be perceived as requiring the incorporation of perspectives beyond one of juridical expertise only. Indeed, given the responsibilities of the judiciary, the promotion of an awareness of gender-relevant issues relating to the application of law, could well be understood as requiring that perspective to be included in a body involved in judicial appointments. Accordingly, the Committee cannot conclude that the requirement is not objective and reasonably justifiable. ¶9.5. Secondly, the Committee notes that the gender clause requires there to be at least four applicants of each sex among the 11 non-justices appointed, which is to say just over one third of the candidates selected. In the Committee’s view, such a requirement does not in this case amount to a disproportionate restriction of candidates’ right of access, on general terms of equality, to public office. Furthermore, and contrary to the author’s contention, the gender requirement does not make qualifications irrelevant, since it is specified that all non-justice applicants must have at least 10 years’ experience. With regard to the author’s argument that the gender requirement could give rise to discrimination between the three categories within the group of non-justices as a result, for example, of only men being appointed in one category, the Committee considers that in that event there would be three possibilities: either the female applicants were better qualified than the male, in which case they could justifiably be appointed; or the female and male applicants were equally well qualified, in which case the priority given to women would not be discriminatory in view of the aims of the law on the promotion of equality between men and women, as yet still lacking; or the female candidates were less well qualified than the male, in which case the Senate would be obliged to issue a second call for candidates in order to reconcile the two aims of the law, namely, qualifications and gender balance, neither of which may preclude the other. On that basis, there would appear to be no legal impediment to reopening applications. Lastly, the Committee finds that a reasonable proportionality is maintained between the purpose of the gender requirement, namely to promote equality between men and women in consultative bodies; the means applied and its modalities, as described above; and one of the principal aims of the law, which is to establish a High Council made up of qualified individuals. Consequently, the Committee finds that [the legislation prescribing the quota] meets the requirements of objective and reasonable justification. ¶9.6 In the light of the foregoing, the Committee finds that article 295 bis-1, paragraph 3, does not violate the author’s rights under the provisions of articles 2, 3, 25 (c) and 26 of the Covenant.

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Measures to Combat Private-sector Discrimination64 [23.95] If discrimination in the private sector is permitted to flourish, a society will fail to deliver real equality of opportunity and treatment. The ICCPR obviously prohibits discrimination by State agencies, and within State laws. The ICCPR also obliges States Parties to take positive steps to combat discrimination by private actors. Such a duty can be derived from the obligation in article 2 to ‘respect and ensure’ all ICCPR rights to all persons, and from article 26: ‘[t]he law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination’. [23.96]

GENERAL COMMENT 28

¶4. State parties are responsible for ensuring the equal enjoyment of rights without any discrimination. Articles 2 and 3 mandate States parties to take all steps necessary, including the prohibition of discrimination on the ground of sex, to put an end to discriminatory actions both in the public and the private sector which impair the equal enjoyment of rights. . . . ¶31. . . . States should review their legislation and practices and take the lead in implementing all measures necessary in order to eliminate discrimination against women, in all fields, for example by prohibiting discrimination by private actors in areas such as employment, education, political activities and the provision of accommodation, goods and services.

[23.97] The following case perhaps gives a more detailed meaning to the vague reference in General Comment 31 to the State’s obligation to prohibit private discrimination ‘in fields affecting basic aspects of ordinary life’ [4.19]. NAHLIK v AUSTRIA (608/95) In this case, the author complained of discrimination entailed in a collective bargaining agreement. The State Party argued against admissibility in the following terms: ¶4. [The State party] argues however that the communication is inadmissible because the author challenges a regulation in a collective agreement over which the State party has no influence. The State party explains that collective agreements are contracts based on private law and exclusively within the discretion of the contracting parties. The State party concludes that the communication is therefore inadmissible under article 1 of the Optional Protocol, since one cannot speak of a violation by a State party.

The HRC rebuffed the above argument in the following terms: ¶8.2. The Committee has noted the State party’s argument that the communication is inadmissible under article 1 of the Optional Protocol since it relates to alleged discrimination within a private agreement, over which the State party has no influence. The Committee observes that under articles 2 and 26 of the Covenant the State party is under an obligation to ensure that 64

See also [1.114] and [4.19]ff.

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all individuals within its territory and subject to its jurisdiction are free from discrimination, and consequently the courts of States parties are under an obligation to protect individuals against discrimination, whether this occurs within the public sphere or among private parties in the quasi-public sector of, for example, employment. The Committee further notes that the collective agreement at issue in the instant case, is regulated by law and does not enter into force except on confirmation by the Federal Minister for Labour and Social Affairs. Moreover, the Committee notes that this collective agreement concerns the staff of the Social Insurance Board, an institution of public law implementing public policy. For these reasons, the Committee cannot agree with the State party’s argument that the communication should be declared inadmissible under article 1 of the Optional Protocol.65

[23.98] The reference in paragraph 8.2 of Nahlik to the ‘quasi-public’ sphere is instructive but vague. Whilst the Covenant requires regulation of private-sector discrimination in ‘quasi-public’ arenas such as employment, housing, or access to publicly available goods and services, it may not require such regulation within the ‘totally private’ or personal sphere, such as the home or within the family or other private relationships.66 For example, how could a State meaningfully regulate instances of parental disapproval over the race of a child’s spouse? Indeed, discrimination in the totally private sphere is perhaps best addressed by educational measures, rather than by coercive laws.67 Of course, egregious discrimination or human rights abuse within the personal sphere, such as the perpetration of domestic violence, must be prohibited. [23.99]

JAZAIRI v CANADA (958/00)

The author claimed that his employer, York University in Toronto, had discriminated against him on the basis of his political opinions, specifically his opinions about Israel. The relevant law, the Ontario Human Rights Code, did not prohibit discrimination on the basis of political opinion. The HRC stated: ¶7.4 Turning to the major claim that the omission of political belief from the enumerated grounds of prohibited discrimination in the Ontario Code violates the Covenant, the Committee observes that an absence of protection against discrimination on this ground does raise issues under the Covenant. Moreover, the exclusion in the Ontario Code of political opinion as a prohibited basis of discrimination suggests that the State party may have failed to ensure that, in an appropriate case, there would be a remedy available to a victim of discrimination on political grounds in the field of employment. The Committee observes however that the Court of Appeal . . . went on to conclude that even considering the matter in the light most favourable to the author, there was nothing on the record to suggest that the author’s political beliefs had disentitled him to consideration for advancement in the Department of Economics. . . . In the Committee’s view, the author has failed to discharge the burden of showing that the factual assessment of the domestic courts was thus The Nahlik case was inadmissible due to non-substantiation of allegations. See Ramcharan, ‘Equality and Non-discrimination’, 262. This does not mean that the State itself could pass legislation which compelled or fostered discrimination within the ‘totally private’ or personal sphere; it only means that the State is not required to regulate discrimination by private persons within that sphere. See, however, [20.53]ff on duties to foster equality within marriage between spouses. 67 See below [23.113]ff. 65 66

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flawed. In the light of this conclusion, the claim under article 26 concerning the absence of protection of political belief in the Ontario Code is rendered hypothetical. The claim is accordingly unsubstantiated and inadmissible under article 2 of the Optional Protocol.

A minority of Mrs Chanet and Messrs Ahanhanzo, Tawfik Khalil, and Lallah came to a different factual conclusion, and found that a breach of article 26 had arisen due to the law’s failure to protect the author from discrimination on the basis of his political opinion. [23.100] Love v Australia (983/01) involved a claim of discrimination in the private sphere, though the complainant lost because the alleged age discrimination was found to be reasonable and objective [23.62]. [23.101] The HRC has recommended that States Parties act to curb discrimination in the private sphere in various Concluding Observations. For example, regarding Mauritius, the HRC stated:68 ¶23. . . . It further recommends that [the Mauritian Constitution] be amended to render it compatible with articles 2(1), 3 and 26 of the Covenant and that steps be taken to introduce comprehensive anti-discrimination laws to cover all spheres, public and private, protected by the Covenant.

[23.102] Article 20 ICCPR imposes a specific duty to enact laws against speech which incites discrimination on the basis of race, religion, or nationality. [23.103] Articles 2(1)(d) ICERD and 2(1)(e) CEDAW specifically oblige States Parties to take all appropriate measures to eliminate race and sex discrimination, respectively, by any persons, group, or organization. The duty to redress private discrimination is reinforced by other provisions of both treaties.69

Systemic Inequality [23.104] All societies are fundamentally influenced by dominant societal values. These dominant values are always male, heterosexual, and able-bodied. They will also reflect a State’s prevalent race, religion, and language. For example, in the United States, the United Kingdom, and Australia, the dominant paradigm reflects the values of white people, Christians, and English-speakers. A State’s society will generally reinforce its own dominant paradigm through, for example, the perpetuation of customs and the formulation of laws that reflect prevailing values. The reinforcement of dominant norms generates systemic discrimination against, and consequent systemic inequality for, people outside the dominant norm. The causes and effects of systemic inequality may be very subtle and even invisible within parts of society, as such inequality is historically perceived as ‘normal’ by both the dominant and marginalized people. 68 Concluding Observations on Mauritius (1997) UN doc CCPR/C/79/Add.60; see also Concluding Observations on Chile (1999) UN doc CCPR/C/79/Add.104, para 23; Costa Rica (1999) UN doc CCPR/C/79/Add.107, para 15; Republic of Korea (1999) UN doc CCPR/C/79/Add.114, para 10. 69 See eg Yilmaz-Dogan v Netherlands (CERD 1/84).

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[23.105] The causes of systemic inequality are so complex that it is doubtful that systemic inequality could be successfully challenged before the HRC in an Optional Protocol complaint. It may also be difficult to prove that one is a ‘victim’ of systemic discrimination. The ‘individual’ and direct nature of the interpretation of ‘victimhood’ does not accommodate complaints about fundamental, systemic problems in society.70 It could be challenged on a macro level during the reporting process, and noted in resultant Concluding Observations. For example, with regard to India, the HRC condemned numerous laws and cultural practices which contributed to the continuing subjugation of women and people of lower castes.71 Regarding Poland, the HRC noted statistics regarding inequality between the sexes (eg that average salaries for women were 70 per cent of those for men).72 Regarding the United States, it has noted that African Americans constitute half of homeless people, while they are only 12 per cent of the overall population.73 Statistics of themselves, however, would probably not be enough to prove an individual instance of discrimination. [23.106]

LNP v ARGENTINA (1610/07)

This case concerned the treatment of a 15-year-old girl, who was a member of an ethnic minority, who claimed she had been raped by three men.74 The HRC found a breach of article 23 entailed in her subsequent treatment by Argentinian authorities: ¶13.3. The Committee takes note of the author’s allegations to the effect that she was a victim of discrimination based on the fact that she was a girl and an indigenous person, both during the trial and at the police station and during the medical examination to which she was subjected. The author alleges that the personnel of the police station of El Espinillo kept her waiting for several hours, in tears and with traces of blood on her dress, and that they did not take down any complaint, being content in the end to hand her over to the local medical centre. The author further alleges that, once at the medical centre, she was subjected to distressing tests which were not necessary to determine the nature of the assault committed against her, but were instead aimed at determining whether or not she was a virgin. The court that heard the case also invoked discriminatory and offensive criteria, such as ‘the presence of long-standing defloration’ of the author to conclude that a lack of consent to the sexual act had not been demonstrated. The author further maintains that all the witnesses were asked whether she was a prostitute. The Committee considers that all the above statements, which have not been contested by the State party, reflect discriminatory treatment by the police, health and judicial authorities aimed at casting doubt on the morality of the victim. The Committee observes, in particular, that the judgement of the Criminal Chamber of Presidencia Roque Saenz Pena bases its analysis of the case on the sexual life of the author and whether or not she was a ‘prostitute’. The Chamber also takes the author’s loss

70

71 See also [1.116]ff. (1985) UN doc CCPR/C/79/Add.81, paras 15–17. (1999) UN doc CCPR/C/79/Add.110, para 12. 73 Concluding Observations on the United States (2006) UN doc CCPR/C/USA/CO/3/Rev.1, para 22; see also para 26 on disadvantage suffered by the poor and African Americans in the Hurricane Katrina rescue effort. 74 See also Vertido v Philippines (CEDAW 18/08); Concluding Observations on the Former Yugoslav Republic of Macedonia (2008) UN doc CCPR/C/MKD/CO/2, para 10. 72

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of virginity as the main factor in determining whether she consented or not to the sexual act. In the light of the uncontested facts which the Committee has before it, the Committee concludes that these facts reveal the existence of discrimination based on the author’s gender and ethnicity in violation of article 26 of the Covenant.

The treatment of the alleged victim of rape in this instance, a juvenile member of a minority, was appalling. The investigation was apparently conducted with a view to establishing the reputation and credentials of the alleged victim rather than the perpetrators. [23.107] Of all the UN treaty bodies, CEDAW has exhibited the greatest awareness of systemic inequality. This is hardly surprising, as women are victims of systemic discrimination in all societies. For example, societal acquiescence in or approval of, or even apathy towards, gender-based violence causes systemic discrimination and inequality. For example, the CEDAW Committee, in its General Recommendation 19, drew attention to the strong links between sex discrimination and violence against women. Indeed, number of CEDAW communications have addressed violence against women including Vertido v Philippines (CEDAW 18/08), Yildirim v Austria (CEDAW 6/05), AT v Hungary (CEDAW 2/03), Goekce v Austria (CEDAW 5/05), Kell v Canada (CEDAW 19/08), and VK v Bulgaria (CEDAW 20/08). [23.108] In numerous Concluding Observations, the HRC has reinforced CEDAW’s condemnation of gender-based violence.75 For example, regarding Yemen, the HRC was concerned about reports of female genital mutilation being a common practice in some parts of the country, and ‘that the laws of Yemen contain no provision for dealing with domestic violence’.76 Regarding Guatemala, the HRC ‘urge[d] that violence (especially within the home) and acts of discrimination against women (such as sexual harassment in the workplace) be established as punishable crimes’.77 The HRC was concerned that ‘courts in Japan seem to consider domestic violence, including forced sexual intercourse, as a normal incident of married life’.78 Regarding Poland, the HRC was concerned over ‘the shortage of provision of hostels and refuges for family members suffering from domestic violence’.79 Regarding Cyprus, the HRC recommended:80 ¶12. . . . reform of the law of evidence to take into account the possibility of removing obstacles to a spouse providing testimony against another spouse on domestic violence.

75 See also Concluding Observations on Japan (2008) UN doc CCPR/C/JPN/CO/5, para 15; Islamic Republic of Iran (2011) UN doc CCPR/C/IRN/CO/3, para 11. 76 (1995) UN doc CCPR/C/79/Add.51, para 14. See also [9.57]ff. 77 (1996) UN doc CCPR/C/79/Add.63, para 33. 78 (1998) UN doc CCPR/C/79/Add.102, para 30; see also Concluding Observations on United Republic of Tanzania (1998) UN doc CCPR/C/79/Add.97, para 11, condemning the failure of the State Party to criminalize marital rape and female genital mutilation; Uruguay (1998) UN doc CCPR/C/79/ Add.90, para 9D, and Venezuela (2001) UN doc CCPR/CO/71/VEN, para 20, condemning the fact that the subsequent marriage of a rapist and victim will exonerate the rapist, and any other participants in the rape offence. 79 (1999) UN doc CCPR/C/79/Add.110, para 14. 80 (1998) UN doc CCPR/C/79/Add.88.

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[23.109] The CEDAW Committee refers to illegal abortion at paragraph 24(m) of General Commendation 19. The HRC has decided two complaints regarding the non-availability of abortion, and found violations in both of them. In Llantoy-Huamán v Peru (1153/03), concerning the refusal of a therapeutic abortion in a situation where the foetus was diagnosed with a fatal condition which endangered the mother’s mental and physical health during pregnancy, the HRC failed, however, to find the discrimination claim admissible.81 The HRC claimed that there was insufficient evidence to prove sex discrimination. However, prima facie any law restricting abortions is discriminatory on the basis of sex as only women ever want or need abortions. Indeed, in LMR v Argentina (1608/07), the HRC found that the denial of an abortion to a mentally ill rape victim breached article 3 in conjunction with other ICCPR provisions.82 Therefore, it seemed to accept in the latter case that denials of abortion are inherently discriminatory on the basis of sex. [23.110] In Szijjarto v Hungary (CEDAW 4/04), the sterilization of a woman without her full consent was found to breach CEDAW. As with abortion, sterilization without consent is a human rights abuse which affects women disproportionately to men. [23.111] The Committee on the Elimination of Racial Discrimination identified a particular instance of systemic discrimination in their General Recommendation 19. CERD GENERAL RECOMMENDATION 19 ¶3. The Committee observes that while conditions of complete or partial racial segregation may in some countries have been created by governmental policies, a condition of partial segregation may also arise as an unintended by-product of the actions of private persons. In many cities residential patterns are influenced by group differences in income, which are sometimes combined with differences in race, colour, descent and national or ethnic origin, so that inhabitants can be stigmatised and individuals suffer a form of discrimination in which racial grounds are mixed with other grounds. ¶4. The Committee therefore affirms that a condition of racial segregation can also arise without any initiative or direct involvement by the public authorities. It invites States parties to monitor all trends which can give rise to racial segregation, to work for the eradication of any negative consequences that ensue, and to describe any such action in their periodic reports.

[23.112] The following comment by the HRC to Slovakia is typical of its approach to systemic discrimination:83 ¶18. The State party should take all necessary measures to eliminate discrimination against the Roma, and to enhance the practical enjoyment of their rights under the Covenant. The State party should also make greater efforts to provide opportunities for Roma to use their language in official communications, to provide readily accessible social services, to provide training to Roma in order to equip them for employment, and to create job opportunities for them. The Committee would like to receive full details on policies adopted and their results in practice. 81 83

At para 5.3. (2003) UN doc CCPR/CO/78/SVK.

82

At para 9.4.

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Educational Duties [23.113] At paragraph 2 of General Comment 4, the HRC stated that the positive enjoyment of rights under articles 2(1), 3, and 26 ‘cannot be done simply by enacting laws’ [23.84]. This comment may envisage the proper enforcement of laws. It may also refer to a duty to take positive, extra-legal measures to combat discrimination. Such extra-legal measures should include educational or promotional duties to, for example, tackle stereotypical perceptions of disadvantaged groups.84 Promotional duties are very important in combating discrimination. Legal remedies can only go so far; cases will affect relatively few individuals, and proof of discrimination is always a difficult task. Furthermore, supplementation of legal principles by vigilant promotion of anti-discrimination principles will hopefully prompt fundamental, consensual (as opposed to coerced) non-discrimination within societies. [23.114] In Concluding Observations on Sweden, the HRC noted the following, in light of events in Sweden following the terrorist attacks in the United States on 11 September 2001:85 ¶12. . . . (c) The State party is . . . requested to undertake an educational campaign through the media to protect persons of foreign extraction, in particular Arabs and Muslims, from stereotypes associating them with terrorism, extremism and fanaticism.

[23.115] Promotional and educational duties with regard to race and sex discrimination are imposed by ICERD, articles 2(e) and 7, and CEDAW, articles 5 and 10(c). [23.116] The HRC has recommended that States undertake promotional campaigns. For example, regarding Mauritius:86 ¶23. It is also recommended that the proposed Equal Opportunity Commission consider whether affirmative action measures, including educational measures, are necessary to overcome remaining obstacles to equality, such as outdated attitudes concerning the role and status of women.

With regard to Finland, the HRC stated:87 ¶16. . . . the Committee recommends that further positive measures be taken to overcome discriminatory and xenophobic attitudes and prejudices, and to foster tolerance.

Investigation of Discrimination [23.117] The duty properly to investigate allegations of discrimination must be implicit in the non-discrimination and effective remedy provisions of the ICCPR, 84 In Concluding Observations on Austria (2008) UN doc CCPR/C/AUT/CO/4, para 9, the HRC was concerned over the lack of mandatory training for police in preventing discrimination against ethnic minorities, including the Roma. 85 86 (2002) UN doc CCPR/CO/74/SWE. (1996) UN doc CCPR/C/79/Add.60. 87 (1998) UN doc CCPR/C/79/Add.91.

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CERD, and CEDAW. This duty has been the subject of a number of CERD cases, such as Ahmed Habassi v Denmark (CERD 10/97), Sefic v Denmark (CERD 32/03), Durmic v Serbia and Montenegro (CERD 29/03), Adan v Denmark (CERD 43/08), and Dawas and Shava v Denmark (CERD 46/09).

Remedies for Victims of Discrimination [23.118] The ICCPR does not specify the requisite remedies for victims of discrimination, beyond the standard remedies provision in article 2, particularly article 2(3).88 Article 6 CERD similarly requires States Parties to provide effective remedies, including the right to seek ‘just and adequate reparation or satisfaction for any damage suffered as a result of [racial] discrimination’, while article 2(1)(c) requires States to ‘take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws’ which contribute to racial discrimination.89 Similarly, article 2(f) and (g) CEDAW calls for States to modify or abolish laws or penal provisions which constitute discrimination against women. EQUALIZING DOWN

[23.119] Two alternatives seem available to redress violations of the ICCPR’s non-discrimination provisions: to raise the rights of the victim to the level of those treated better than him/her, or to lower the rights of those others to the level of the victim. The latter solution diminishes the rights of others while often offering little benefit to the original victim.90 Article 5(2) prohibits a State Party from invoking the Covenant as a pretext to reduce the fundamental human rights of a person within the State. Article 5(2) may prevent States remedying breaches of articles 2(1), 3, and 26 by ‘equalizing down’.91 However, the HRC itself canvassed an option of ‘equalizing down’ as an appropriate remedy at paragraph 10.6 in Waldman v Canada [23.60], so such remedies appear to be valid responses to findings of violation.92

Equality before the Law [23.120] Most OP discrimination cases have concerned ‘equal protection of the law’ rather than ‘equality before the law’. The latter right guarantees equality and fairness with regard to the enforcement and administration of the law. Judges and other legal administrators must not apply legislation in an arbitrary 88

See [1.121]. See, for a case on remedies under CERD, BJ v Denmark (CERD 10/97). 90 Lester and Joseph, ‘Obligations of Non-Discrimination’, 594. 91 Lester and Joseph, ‘Obligations of Non-Discrimination’, 594. 92 In a separate opinion in Pauger v Austria (415/90), Mr Ando concedes the possibility of ‘equalizing down’ as a remedy for art 26 violations, but suggests that such remedies would hardly be endorsed by the relevant society. 89

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93

or discriminatory manner. In so far as this duty applies to judges, it reflects similar rights of ‘equality before the courts’ in article 14(1) [14.21]. Article 26 is, however, broader than article 14, as the latter only seems to guarantee ‘equality’ so long as someone is indeed ‘before’ a ‘court’ or other tribunal. A violation of article 26 was found in Sister Immaculate Joseph et al v Sri Lanka (1249/04), entailed in the failure by the State Party to permit a religious order to be heard in proceedings which clearly concerned their rights.94 The relevant proceedings concerned a constitutional challenge to the religious order’s application for incorporation under State law [17.22]. Article 14 may have been available to address unfairness in the actual proceedings if the order had in fact participated. Perhaps it was not available to address unfairness in the fact of the order’s absence, while article 26 was. [23.121] Cases of inequality before the law will often concern arbitrary behaviour by public bodies with regard to a single individual rather than a group. Thus, it is necessary to examine whether a complaint regarding ‘equality before the law’ requires the establishment of a distinct ‘ground’ upon which an individual has been treated unequally. This issue arose in the following two cases. [23.122]

BdB et al v THE NETHERLANDS (273/88)

The authors in this case complained of disadvantage suffered due to an administrative error. The authors were physiotherapists who were required to make insurance contributions not required by other physiotherapists in the same circumstances. ¶6.6. The authors complain about the application to them, of legal rules of a compulsory nature, which for unexplained reasons were allegedly not applied uniformly to some other physiotherapy practices. . . . ¶6.7. . . . The Committee notes that the authors have not claimed that their different treatment was attributable to them belonging to any identifiably distinct category which could have exposed them to discrimination on account of any of the grounds enumerated or ‘other status’ referred to in article 26 of the Covenant. The Committee, therefore, finds this aspect of the authors’ communication to be inadmissible under article 3 of the Optional Protocol.

The complainants in BdB failed to establish that they were discriminated against as members of groups united by a common ‘other status’. However, compare BdB with the following case. [23.123]

FÁBRYOVÁ v CZECH REPUBLIC (765/97)

The complaint concerned the author’s inability to gain restitution under Czech law regarding the confiscation of her father’s property by the former Communist government. Her eligibility for restitution was denied by a Land Office decision of 14 October 1994. The Constitutional Court later ruled, in proceedings not concerning the author, that the interpretation used by the Land Office of the 93 94

Nowak, UN Covenant on Civil and Political Rights:CCPR Commentary, 605–6. At para 7.5.

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relevant legislation was wrong. Consequently, the 1994 decision was quashed by the Central Land Office on 9 October 1997. However, the author explained that that 1997 decision was of no use to her, due to an administrative error. The HRC found in favour of the author: ¶9.2. The Committee notes that the State Party concedes that under Law nr 243/1992 individuals in a similar situation as that of the author qualify for restitution as a result of the subsequent interpretation given by the Constitutional Court. . . . The State Party further concedes that the decision of the Jihlava Land Office of 14 October 1994 was wrong and that the author should have had the opportunity to enter a fresh application before the Jihlava Land Office. The author’s renewed attempt to obtain redress has, however, been frustrated by the State party itself which, through a letter of the Ministry of Agriculture of 25 May 1998, informed the author that the decision of the Jihlava Land Office of 14 October 1994 had become final on the ground that the decision of the Central Land Office reversing the decision of the Jihlava Land Office had been served out of time. ¶9.3. Given the above facts, the Committee concludes that, if the service of the decision of the Central Land Office reversing the decision of the Jihlava Land Office was made out of time, this was attributable to the administrative fault of the authorities. The result is that the author was deprived of treatment equal to that of persons having similar entitlement to the restitution of their previously confiscated property, in violation of her rights under article 26 of the Covenant.

No ‘ground’ of discrimination was cited, or apparently required, by the HRC in its finding of an article 26 violation. This decision may manifest the HRC’s use of the ‘equality before the law’ limb of article 26, even though that limb is not explicitly noted in its reasoning. The HRC does not appear to require a distinct ‘ground’ at all in cases regarding equality before the law, as seen in the following cases.95 [23.124]

KAVANAGH v IRELAND (819/98)

The background to the facts of this case is described by the author directly below: ¶2.1. Article 38 (3) of the Irish Constitution provides for the establishment by law of Special Courts for the trial of offences in cases where it may be determined, according to law, that the ordinary courts are ‘inadequate to secure the effective administration of justice and the preservation of public peace and order’. On 26 May 1972, the Government exercised its power to make a proclamation pursuant to Section 35 (2) of the Offences Against the State Act 1939 (the Act) which led to the establishment of the Special Criminal Court for the trial of certain offences. . . . ¶2.2. By virtue of section 47 (1) of the Act, a Special Criminal Court has jurisdiction over a ‘scheduled offence’ (i.e. an offence specified in a list) where the Attorney-General ‘thinks proper’ that a person so charged should be tried before the Special Criminal Court rather than the ordinary courts. [Many of these offences concerned those often associated with terrorism, though some of the offences could arise in the course of non-political crimes.] The Special Criminal Court also has jurisdiction over non-scheduled offences where the Attorney-General certifies, under section 47 (2) of the Act, that in his or her opinion the 95

See also Pezoldova v Czech Republic (757/97) and Blaga v Romania (1158/03).

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ordinary courts are ‘inadequate to secure the effective administration of justice in relation to the trial of such person on such charge’. The Director of Public Prosecutions (DPP) exercises these powers of the Attorney-General by delegated authority. ¶2.3. In contrast to the ordinary courts of criminal jurisdiction, which employ juries, Special Criminal Courts consist of three judges who reach a decision by majority vote. The Special Criminal Court also utilizes a procedure different from that of the ordinary criminal courts, including that an accused cannot avail himself or herself of preliminary examination procedures concerning the evidence of certain witnesses.

The facts giving rise to the author’s communication, and his actual complaint, follow: ¶3.2. On 19 July 1994, the author was arrested on seven charges related to the incident; namely false imprisonment, robbery, demanding money with menaces, conspiracy to demand money with menaces, and possession of a firearm with intent to commit the offence of false imprisonment. Six of those charges were non-scheduled offences, and the seventh charge (possession of a firearm with intent to commit the offence of false imprisonment) was a ‘scheduled offence’. ¶3.3. On 20 July 1994 the author was charged directly before the Special Criminal Court with all seven offences by order of the Director of Public Prosecution (DPP), dated 15 July 1994, pursuant to section 47 (1) and (2) of the Act, for the scheduled offences and the non-scheduled offences respectively. . . . ¶4.1. The author claims that the DPP’s order to try him before the Special Criminal Court violated the principles of fairness and full equality of arms protected by article 14, paragraphs 1 and 3. The author complains that he has been seriously disadvantaged compared to other persons accused of similar or equal criminal offences, who unlike him were tried by ordinary courts and therefore could avail themselves of a wider range of possible safeguards. The author emphasizes that in his case the trial by jury, as well as the possibility of preliminary examinations of witnesses, would be particularly important. The assessment of the credibility of several key witnesses would be the main issue of his case. Thus the author alleges to have been arbitrarily restrained and unequally treated in his procedural rights, since the DPP has not given any reasons or justification for his decision. . . . ¶4.7. The author also alleges a violation of the principle of non-discrimination under article 26, since he has been deprived, without objective reason, of important legal safeguards available to other accused persons charged with similar offences. . . .

The State Party justified its Special Criminal Courts: ¶7.4. Concerning the author’s argument that his rights were breached in that he was tried by a Special Criminal Court on ‘ordinary’ criminal charges, the State party argues that the proper administration of justice must be protected from threats which undermine it, including threats arising from subversive groups within society, from organized crime and the dangers of intimidation of jurors. In a case where such a threat to the integrity of the normal jury process exists, as the DPP had certified here, the accused’s rights are in fact better protected by a bench of three impartial judges who are less vulnerable to improper external influence than a jury would be. The State party points out that an inadequacy of the ordinary courts, as to which the DPP must be satisfied before the Special Criminal Court can be invoked, may arise not merely from ‘political’, ‘subversive’ or

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paramilitary offences but also from ‘ordinary gangsterism or well financed and well organized drug dealing, or other situations where it might be believed that juries were for some corrupt reason, or by virtue of threats, or of illegal interference, being prevented from doing justice’. . . .

The HRC upheld Kavanagh’s complaint under article 26, and therefore did not feel the need to address his contentions regarding article 14(1): ¶10.1. . . . In the Committee’s view, trial before courts other than the ordinary courts is not necessarily, per se, a violation of the entitlement to a fair hearing and the facts of the present case do not show that there has been such a violation. ¶10.2. The author’s claim that there has been a violation of the requirement of equality before the courts and tribunals, contained in article 14, paragraph 1, parallels his claim of violation of his right under article 26 to equality before the law and to the equal protection of the law. The DPP’s decision to charge the author before the Special Criminal Court resulted in the author facing an extra-ordinary trial procedure before an extra-ordinarily constituted court. This distinction deprived the author of certain procedures under domestic law, distinguishing the author from others charged with similar offences in the ordinary courts. Within the jurisdiction of the State party, trial by jury in particular is considered an important protection, generally available to accused persons. Under article 26, the State party is therefore required to demonstrate that such a decision to try a person by another procedure was based upon reasonable and objective grounds. In this regard, the Committee notes that the State party’s law, in the Offences Against the State Act, sets out a number of specific offences which can be tried before a Special Criminal Court at the DPP’s option. It provides also that any other offence may be tried before a Special Criminal Court if the DPP is of the view that the ordinary courts are ‘inadequate to secure the effective administration of justice’. The Committee regards it as problematic that, even assuming that a truncated criminal system for certain serious offences is acceptable so long as it is fair, Parliament through legislation set out specific serious offences that were to come within the Special Criminal Court’s jurisdiction in the DPP’s unfettered discretion (‘thinks proper’), and goes on to allow, as in the author’s case, any other offences also to be so tried if the DPP considers the ordinary courts inadequate. No reasons are required to be given for the decisions that the Special Criminal Court would be ‘proper’, or that the ordinary courts are ‘inadequate’, and no reasons for the decision in the particular case have been provided to the Committee. Moreover, judicial review of the DPP’s decisions is effectively restricted to the most exceptional and virtually undemonstrable circumstances. ¶10.3. The Committee considers that the State party has failed to demonstrate that the decision to try the author before the Special Criminal Court was based upon reasonable and objective grounds. Accordingly, the Committee concludes that the author’s right under article 26 to equality before the law and to the equal protection of the law has been violated. In view of this finding with regard to article 26, it is unnecessary in this case to examine the issue of violation of equality ‘before the courts and tribunals’ contained in article 14, paragraph 1, of the Covenant. . . . ¶12. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy. The State party is also under an obligation to ensure that similar violations do not occur in the future: it should ensure that persons are not tried before the Special Criminal Court unless reasonable and objective criteria for the decision are provided.

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[23.125] The State Party thus failed to justify the decision to try Kavanagh before a Special Criminal Court.96 The HRC was not prepared to assume that the DPP’s decision was based on reasonable and objective criteria, in the absence of rigorous judicial review of that decision or the revelation of the DPP’s reasons for making the decision.97 The State Party had argued: ¶7.6. . . . Nor would it be desirable to require the DPP’s decision to be justified or explained, for that would open up enquiries into information of a confidential nature with security implications, would nullify the very purpose for which the Special Criminal Court was established and would not be in the overall public interest.

Evidently, the HRC did not accept the argument that non-publication of reasons was justified in the interests of security considerations. In the absence of such reasons, Kavanagh’s trial before an SCC could not be found to be based on reasonable and objective grounds, so a violation of article 26 was found.98 Kavanagh demonstrates that the mere invocation of ‘security concerns’ does not form a cloak under which all State actions are permissible.99 [23.126] In Concluding Observations on the United Kingdom, the HRC expressed concerns over the use of special courts in Northern Ireland:100 ¶18. The Committee remains concerned that, despite improvements in the security situation in Northern Ireland, some elements of criminal procedure continue to differ between Northern Ireland and the remainder of the State party’s territory. In particular, the Committee is concerned that, under the Justice and Security (Northern Ireland) Act 2007, persons whose cases are certified by the Director of Public Prosecutions for Northern Ireland are tried in the absence of a jury. It is also concerned that there is no right of appeal against the decision made by the Director of Public Prosecutions for Northern Ireland. The Committee recalls its interpretation of the Covenant as requiring that objective and reasonable grounds be provided by the appropriate prosecution authorities to justify the application of different rules of criminal procedure in particular cases (art. 14). The State party should carefully monitor, on an ongoing basis, whether the exigencies of the situation in Northern Ireland continue to justify any such distinctions with a view to abolishing them. In particular, it should ensure that, for each case that is certified by the Director of Public Prosecutions for Northern Ireland as requiring a non-jury trial, objective and reasonable grounds are provided and that there is a right to challenge these grounds.

[23.127] It may be noted that special criminal tribunals are not per se a breach of the Covenant, as indicated in Manzano v Colombia (1616/07). This case concerned claims under article 14 [14.26], and was found to raise no admissible issues. Perhaps the authors in that case would have been more successful if they 96

See also Concluding Observations on Ireland (2008) UN doc CCPR/C/IRL/CO/3, para 20. S Joseph, ‘Human Rights Committee: Recent Cases’ (2001) 1 HRLR 305, 311–12. 98 Joseph, ‘Human Rights Committee: Recent Cases’ (2001) 1 HRLR 312. 99 Joseph, ‘Human Rights Committee: Recent Cases’ (2001) 1 HRLR 312. See also [14.26] and [18.49]. 100 (2008) UN doc CCPR/C/GBR/CO/6. 97

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had argued that their differential treatment (ie trial before a special court) was a breach of article 26, rather than that the proceedings failed to comply with the standards of fairness mandated in article 14. [23.128]

O’NEILL and QUINN v IRELAND (1314/06)

The authors had been convicted of killing Garda McCabe, an Irish police officer (garda), in Ireland in 1996. McCabe was killed during an attempted robbery carried out by the terrorist group, the Provisional Irish Republic Army (IRA). In 1998, the UK and Irish governments concluded ‘the Good Friday Agreement’ (GFA), aimed at ending the long-standing conflict in Northern Ireland. One chapter of the GFA dealt with the release of prisoners, including convicted terrorists on both sides of the conflict. This release scheme was implemented in Ireland under the Criminal Justice, Release of Prisoners Act 1998 (Ireland), under which ‘qualifying prisoners’ could be released. It seemed that the definition of a qualifying prisoner was left to the discretion of the Justice Minister. The authors obtained documents under freedom of information legislation which seemed to confirm that they had been excluded from classification as ‘qualifying prisoners’. It seemed that persons who committed offences on behalf of the IRA prior to the conclusion of the GFA were qualifying prisoners. So too were many convicted of murdering Irish gardai. Finally, persons convicted for offences committed on behalf of the IRA after the GFA were also qualifying prisoners, but the authors were explicitly excluded, apparently due to the need to ensure public support for the release plan and the GFA. They had unsuccessfully appealed against their exclusion from the list of qualifying prisoners. The authors claimed that Ireland’s failure to release them under the GFA release scheme was discriminatory contrary to articles 2(1) and 26, as others convicted of comparable or even graver offences had been released. They claimed that the discrimination was arbitrary as their exclusion from the release scheme was due only to political considerations. Ireland argued that the claim was outside the scope of article 26, and justified their exclusion from the GFA thus: ¶4.6. . . . the State party submits that the claims are outside the scope of articles 26 and 2. It was successfully argued before the domestic courts that the essence of any equality claim is that like persons must be treated alike. All persons convicted in relation to the incident in question were treated alike with respect to the prisoner release scheme. Those involved in the murder of Garda McCabe were deemed to constitute a different group of prisoners to whom any arrangements made pursuant to the GFA would not apply. The authors were aware of this and pleaded guilty when the Government’s policy had been clearly announced. They differ from other possible beneficiaries of the scheme because the State party’s Government considered that their release would not be tolerated by the People of Ireland. The State party rejects the argument that the fact that a discretionary State privilege has been granted to others in comparable circumstances gives rise to a legally enforceable right. . . . ¶4.7. The State party submits that the crimes and the issues surrounding them were not comparable to other crimes. The incident in question occurred during a breakdown in the IRA cease-fire, at a stage when the State party’s Government was involved in high level negotiations which would lead to the GFA. This was the first time anyone had been

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convicted of the murder of a police officer since the IRA’s ceasefire. The violence used by the perpetrators was particularly savage, the victims were members of the Irish police force and senior members of the provisional IRA were involved in the incident. . . . The HRC found that no violations had taken place. ¶8.2. The Committee relies upon the following facts on the basis of which it will consider the authors’ claims. A statutory-based scheme for the early release of prisoners was set up pursuant to the Multi-Party Agreement of the GFA and was implemented in the Criminal Justice (Release of Prisoners) Act, 1998. The Multi-Party Agreement is a political agreement. It is undisputed that neither the GFA nor the Criminal Justice (Release of Prisoners) Act, 1998, which implemented the Agreement, conferred a general right of release on prisoners. It is also undisputed that, although the 1998 Act does not purport to confer any additional power of commutation or remission of sentence on the Minister, the Act empowers him/her to deem a person to be a ‘qualifying prisoner’. The criteria upon which the Minister was empowered to specify prisoners as ‘qualifying’ were not incorporated in the Act but, and this is uncontested by the State party, it appears that certain criteria were established by the Minister to assess whether a prisoner should be so specified. From the State party’s point of view, the criteria established and applied by the Minister were not relevant to the circumstances of this case, as it was never intended to consider the authors under the scheme. ¶8.3 The authors claim that the Minister for Justice, Equality and Law Reform’s refusal to specify them as ‘qualifying prisoners’ under the scheme for the early release of prisoners, pursuant to the GFA, was arbitrary and discriminatory. The Committee considers that under article 26, States parties are bound, in their legislative, judicial and executive action, to ensure that everyone is treated equally and without discrimination based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. It recalls its constant jurisprudence that not every distinction constitutes discrimination, in violation of article 26, but that distinctions must be justified on reasonable and objective grounds, in pursuit of an aim that is legitimate under the Covenant. As regards the prohibition of discrimination, the Committee notes that the distinction made by the State party between the authors and those prisoners who had been included in the early release scheme is not based on any of the grounds listed in article 26. In particular, the authors were not excluded because of their political opinions. However, article 26 not only prohibits discrimination but also embodies the guarantee of equality before the law and equal protection of the law. ¶8.4. The Committee observes that it was pursuant to the Multi-party Agreement—a political agreement—that the Release of Prisoners’ Scheme was enacted, and considers that it cannot examine this case outside its political context. It notes that the early release scheme did not create any entitlement to early release but left it to the discretion of the relevant authorities to decide, in the individual case, whether the person concerned should benefit from the scheme. It considers that this discretion is very wide and that, therefore, the mere fact that other prisoners in similar circumstances were released does not automatically amount to a violation of article 26. The Committee notes that the State party justifies the exclusion of the authors (and others involved in the incident in which Garda McCabe was murdered) from the scheme, by reason of the combined circumstances of the incident in question, its timing (in the context of a breach of a cease-fire), its brutality, and the need to ensure public support for the GFA. In 1996 when the incident occurred, the government assessed the impact of the incident as exceptional. For this reason, it considered that all those involved would be excluded from any subsequent agreement on the release

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The ICCPR

of prisoners. This decision was taken after the incident in question but before the conviction of those responsible, and thus, focused on the impact of the incident itself rather than on the individuals involved. All those responsible were made aware, from the outset, that if they were convicted of having had any involvement in the incident, they would be excluded from the scheme. The Committee also notes that, apparently, others convicted of killing Gardai who benefited from the early release scheme had already served long sentences . . . The Committee considers that it is not in a position to substitute the State party’s assessment of facts with its own views, particularly with respect to a decision that was made nearly ten years ago, in a political context, and leading up to a peace agreement. It finds that the material in front of it does not disclose arbitrariness and concludes that the authors’ rights under article 26 to equality before the law and to the equal protection of the law have not been violated.

This case revealed pragmatic ‘political’ limits to ICCPR rights, which were not explicitly found in the treaty itself [1.137]. The decision arguably undermined the general principle that limits to ICCPR rights should be interpreted narrowly. Such limits were most explicitly acknowledged by Ms Wedgwood in her separate concurring opinion in which she stated: Article 26 does not allow the Committee to sit as an administrative court, reviewing every government decision, in the same fashion as a national administrative tribunal. This is a point especially important in the management of our decisional capacity under the First Optional Protocol.

The majority decision recognized a very broad discretion for Ireland entailed in the political context of the case. That breadth of discretion meant that the HRC would not substitute its decision for Ireland’s political decision to exclude the authors from the release scheme on blatantly political grounds. [23.129] In contrast, the minority did not acknowledge that the political context of the case rendered the government’s actions any less susceptible to strict scrutiny by the HRC. In applying such standards of scrutiny, they found a violation of article 26. For example, Mr Solari-Yrigoyen stated: ¶3. Whether the Good Friday Agreement was political or not, the crucial issue for the Committee should be to ascertain whether the exclusion of the authors from the early release scheme was consistent with article 26 of the Covenant, which calls for equality before the law and prohibits discrimination on the grounds which it specifies. Even if the early release scheme left it to the discretion of the authorities to include or exclude a particular individual, a decision to exclude someone ought to be based on fair and reasonable criteria—something which the State party has not so much as attempted to do. . . . Given that one of the authors was convicted of manslaughter (in the Garda McCabe case) and the other of conspiracy to commit robbery although he had not even been at the scene of the crime, one must conclude that the State party has not shown that its decision to exclude the authors from the early release scheme was based on fair and reasonable grounds. The decision was based on political and other considerations unacceptable under the Covenant such as the potential impact of the authors’ early release on public opinion. As the Committee has pointed out in general comment 18, article 26 of the Covenant does not merely duplicate the guarantee offered by article 2 but provides an autonomous right

Rights of Non-discrimination

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prohibiting discrimination in law or in fact in any field regulated and protected by public authorities.

Mr Lallah and Ms Chanet stated, in dissent: ¶5. . . . the 1998 Act created a special category of ‘qualifying prisoners’, as distinct from the general category of prisoners, to be entitled to inclusion in the Ministerial list and to have their cases considered by the statutory Commission. While Article 26 permits, in principle, different treatment between several claimants on reasonable and objective criteria, such criteria cease to be reasonable and objective when they are based on essentially political considerations expressly prohibited by Article 26, whether in the enactment of laws or in their implementation or else in their judicial adjudication. The authors were thus deprived of their entitlement to inclusion in the list in violation of their Article 26 right, as ‘qualifying prisoners’, to equality of treatment and the equal protection of the law.

[23.130] In Teesdale v Trinidad and Tobago (677/96), the author claimed a violation of article 26 entailed in the fact that his death sentence was commuted to 75 years without parole, while 53 other people had their sentences commuted to ‘life imprisonment’, which meant that they would be eligible for parole within 12 to 15 years.101 The HRC majority found no violation, as the author had provided no detail on the nature of the other cases.102 A minority comprising Messrs Kretzmer, Shearer, and Solari-Yrigoyen found that a violation had arisen, as the State Party had provided no ‘explanation as to the alleged difference in treatment between the author and the other persons who had been sentenced to death’. Thus, the difference within the HRC seemed to lie with regard to the appropriate allocation of the burden of proof.

Conclusion [23.131] The HRC, as well as the CERD and CEDAW Committees, has issued a large body of jurisprudence regarding rights of non-discrimination. The ICCPR goes further than ICERD and CEDAW in prohibiting discrimination, as it extends its prohibition beyond the grounds of race and sex. The ICCPR compels States Parties to prevent and remedy invidious discrimination by public bodies, within State laws, and by private entities. In certain circumstances, positive measures, or ‘affirmative action’, may be needed properly to redress discrimination. The HRC has been generous in finding discrimination cases admissible with regard to numerous grounds of discrimination, and with regard to the enjoyment of numerous rights.

101

At para 3.9.

102

At para 9.8.

24 Minority Rights—Article 27 • • • • • •

Article 27 and Other Articles of the ICCPR . . . . . . . . . . . . . . . . . . . . . Definition of a Minority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Membership of a Minority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Indigenous People and Article 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Individual Rights and Group Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . Substantive Content: What is Protected under Article 27? . . . . . . . . . . • Culture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Economic Development and its Impact on Culture . . . . . . . . . . . . • Indigenous Land Rights Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . • Religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Positive Measures of Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[24.02] [24.06] [24.12] [24.15] [24.18] [24.22] [24.22] [24.27] [24.40] [24.44] [24.46] [24.53] [24.55]

ARTICLE 27 In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

[24.01] Article 27 protects the rights of minorities; that is it protects individuals belonging to minority groups, and that protection is in addition to the rights all individuals have under the Covenant in general.1 The Human Rights Committee (HRC) has explained the supplementary quality to article 27 in General Comment 23: GENERAL COMMENT 23 ¶1. . . . The Committee observes that [article 27] establishes and recognises a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant. . . . ¶9. . . . The protection of [article 27] rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole.2 Accordingly, the Committee observes that these rights must be protected as such and should not be confused with other personal rights conferred on one and all under the Covenant.

1 Cultural rights are given some recognition in the International Covenant on Economic Social and Cultural Rights (ICESCR) in art 15. 2 See also Concluding Observations on Greece (2005) UN doc CCPR/CO/83/GRC, para 20.

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Article 27 and the General Comment make it clear that the right to preserve and defend the identity of minorities is essential. The fundamental components of minority identity, which must be protected, are its cultural, religious, and linguistic manifestations.3

Article 27 and Other Articles of the ICCPR [24.02]

GENERAL COMMENT 23

The distinction between the rights of peoples to self determination, guaranteed in article 1, and the rights of minorities is explained by the HRC: ¶2. In some communications submitted to the Committee under the Optional Protocol, the right protected under article 27 has been confused with the right of peoples to self-determination proclaimed in article 1 of the Covenant. . . . ¶3.1. The Covenant draws a distinction between the right to self-determination and the rights protected under article 27. The former is expressed to be a right belonging to peoples and is dealt with in a separate part (Part I) of the Covenant. Self-determination is not a right cognisable under the Optional Protocol. Article 27, on the other hand, relates to rights conferred on individuals as such and is included, like the articles relating to other personal rights conferred on individuals, in Part III of the Covenant and is cognisable under the Optional Protocol. ¶3.2. The enjoyment of the rights to which article 27 relates does not prejudice the sovereignty and territorial integrity of a State party. At the same time, one or other aspect of the rights of individuals protected under that article—for example, to enjoy a particular culture—may consist in a way of life which is closely associated with territory and use of its resources. This may particularly be true of members of indigenous communities constituting a minority.

[24.03] Article 27 is therefore distinguished from article 1, inter alia, on the basis that the former guarantees individual rather than collective rights. However, as the rights protected under article 27 apply to members of a minority, they may be thought of in part as collective rights, exercisable individually.4 This is an equally sustainable argument regarding interpretation of article 1.5 As seen below,6 the undeniable ‘group’ aspect to certain minority claims can occasionally conflict with article 27 claims made by individuals within the same group. [24.04] The General Comment also draws a distinction between article 27 and rights of non-discrimination under articles 2(1) and 26:

3 See P Thornberry, ‘The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Background, Analysis, Observations and an Update’, in A Phillips and A Rosas (eds), Universal Minority Rights (Institute for Human Rights, Åbo Akademi University, 1995), 20–5. 4 See General Comment 23, para 9 [24.01]; see further Thornberry, ‘The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’, 173–6. 5 6 See, further, on the non-justiciability of art 1 [7.24]ff. See [24.18]ff.

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¶4. The Covenant also distinguishes the rights protected under article 27 from the guarantees under articles 2(1) and 26. [These articles confer non-discrimination rights on individuals within jurisdiction] irrespective of whether they belong to the minorities specified in article 27 or not. Some States parties who claim that they do not discriminate on grounds of ethnicity, language or religion, wrongly contend, on that basis alone, that they have no minorities.

[24.05] Cases under article 25 (rights of political participation),7 and articles 17 (right of privacy), and 23 (rights of the family)8 have also raised issues which potentially overlap with minority rights issues. One could also anticipate an overlap with the article 18 right of freedom of religion, in relation to religious minorities.

Definition of a Minority [24.06] There is no fixed definition in article 27 of what constitutes a minority. It is clear from the General Comment that a minority is understood in this context as ‘those who belong to a group and who share in common a culture, a religion, and/or a language’.9 [24.07]

BALLANTYNE et al v CANADA (359, 385/89)

In this case, the authors sought to argue that Quebec’s language laws constituted, inter alia, a breach of article 27. The authors were part of the English-speaking minority in Quebec. Out of a total population of 15,600 in the town in question, there were 5,600 English speakers. The law at issue prevented them from displaying commercial signs in English. They alleged disadvantage vis-à-vis French-speaking business competitors who were allowed to use their mother tongue without restriction. On the article 27 aspect of the complaint the Committee concluded: ¶11.2. . . . that this provision refers to minorities in States . . . Further, article 50 of the Covenant provides that its provisions extend to all parts of Federal States without any limitations or exceptions. Accordingly, the minorities referred to in article 27 are minorities within such a State, and not minorities within any province. A group may constitute a majority in a province but still be a minority in a State and thus be entitled to the benefits of article 27. English speaking citizens of Canada cannot be considered a linguistic minority. The authors therefore have no claim under article 27 of the Covenant.

Thus a minority is a group that is numerically inferior within the State as a whole, and not merely numerically inferior within one province or region.

See Marshall v Canada (205/86) (also known as Mikmaq Tribal Society v Canada) [22.16]. Hopu and Bessert v France (549/93) [20.14] and [24.39]. The term ‘minority’ has been defined elsewhere as ‘a group’, being ‘numerically inferior to the rest of the population of a State, in a non-dominant position, whose members—being nationals of a State-possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.’ See F Caportori, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities (United Nations, 1991), para 568. 7 8 9

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[24.08] A strong dissent in Ballantyne was issued by Mrs Elizabeth Evatt, and co-signed by Messrs Ando, Bruni Celli, and Dimitrijevic: My difficulty with the decision is that it interprets the term ‘minorities’ in article 27 solely on the basis of the number of members of the group in question in the State party. The reasoning is that because English speaking Canadians are not a numerical minority in Canada they cannot be a minority for the purposes of article 27. I do not agree, however, that persons are necessarily excluded from the protection of article 27 where their group is an ethnic, linguistic or cultural minority in an autonomous province of a State, but is not clearly a numerical minority in the State itself, taken as a whole entity. The criteria for determining what is a minority in a State (in the sense of article 27) has not yet been considered by the Committee, and does not need to be foreclosed by a decision in the present matter, which can in any event be determined on other grounds.

[24.09] According to the HRC majority in Ballantyne [24.07], a group which forms a majority in a State can never be classified as a minority, though that group would probably be classified as a people for the purposes of article 1. A flaw in this reasoning is that the latter rights cannot be enforced under the Optional Protocol [7.24], so the rights of oppressed majorities may be unduly limited by the Ballantyne judgment. However, other rights are often applicable, such as the rights of non-discrimination and political participation, or, as in Ballantyne, freedom of expression [18.39]. [24.10]

GENERAL COMMENT 23

¶5.2. Article 27 confers rights on persons belonging to minorities which ‘exist’ in a State party. Given the nature and scope of the rights envisaged under that article, it is not relevant to determine the degree of permanence that the term ‘exist’ connotes. Those rights simply are that individuals belonging to those minorities should not be denied the right, in community with members of their group, to enjoy their own culture, to practise their religion and speak their language. Just as they need not be nationals or citizens, they need not be permanent residents. Thus, migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights. . . . The existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria.

[24.11] Mrs Higgins, in a separate opinion in TK v France (220/87), stated: . . . The Committee has, in relation to several State parties, rejected the notion that the existence of minorities is in some way predicated on an admission of discrimination. Rather, it has insisted that the existence of minorities within the sense of article 27 is a factual matter; and that such minorities may indeed exist in States parties committed in law and in fact, to the full equality of all persons within its jurisdiction. . . .

In Concluding observations on France, the HRC has stated:10 ¶24. . . . The Committee is, however, unable to agree that France is a country in which there are no ethnic, religious or linguistic minorities. The Committee wishes to recall in this respect that the mere fact that equal rights are granted to all individuals and that all 10 Concluding Observations on France (1997) UN doc CCPR/C/79/Add80. France, however, has benefited from a reservation to art 27; see eg TK v France (220/87) [26.09].

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individuals are equal before the law does not preclude the existence in fact of minorities in a country, and their entitlement to the enjoyment of their culture, the practice of their religion or the use of their language in community with other members of their group.

In its Concluding Observations on Slovenia, the Committee noted:11 ¶12. . . . that the State party singles out Italians and Hungarians for special protection as minorities, including the right to political representation. Gypsies are also granted certain special protection as a minority. Whilst this protection is welcome, all minorities are entitled to protection of their rights under article 27. Immigrant Communities constituting minorities under the meaning of article 27 are entitled to the benefit of that article.

In Concluding Observations on Austria, the HRC stated:12 ¶14. The Committee notes with concern that the State party appears to restrict the definition of minorities to certain legally recognised groups. . . .

In Concluding Observations on Hungary, the HRC stated:13 ¶22. The Committee is concerned at the legal requirement provided by Act LXXVII of 1993 on the Rights of National and Ethnic Minorities which prescribes that only those groups of people who represent a numerical minority and have lived in the territory of the State party for at least one century will be considered a minority or ethnic group under the terms of this act (arts. 26 and 27).

In Concluding Observations on Ireland, the HRC stated:14 ¶23. The Committee is concerned that the State party does not intend to recognize the Traveller community as an ethnic minority. It is furthermore concerned that members of the Traveller community were not represented in the High Level Group on Traveller issues. . . . . . . It should . . . amend its legislation to meet the specific accommodation requirements of Traveller families.

In Concluding Observations on Denmark, the HRC stated:15 ¶13. The Committee notes with concern that, in its decision of 28 November 2003, the Supreme Court did not recognize the Thule Tribe of Greenland as a separate group capable of vindicating its traditional rights, despite the tribe’s own perception to the contrary (arts. 2, 26 and 27). The State party should pay special attention to self-identification of the individuals concerned in the determination of their status as persons belonging to minorities or indigenous peoples.

Thus the Committee has noted its concern over State legislation that limits the definition of minorities,16 and/or laws which acknowledge only some minority 11 (1994) UN doc CCPR/C/79Add.40; see further the Concluding Observations on Estonia (1995) UN doc CCPR/C/79/Add.5, para 23; Concluding Observations on Russian Federation (1995) UN doc CCPR/C/79/Add.54, para 23. 12 13 (1998) UN doc CCPR/C/79/Add.103. (2010) UN doc CCPR/C/HUN/CO/5. 14 15 (2008) UN doc CCPR/C/IRL/CO/3. (2008) UN doc CCPR/C/DNK/CO/5. 16 See also Concluding Observations on Ukraine (1995) UN doc CCPR/C/79/Add.52, para 18; Senegal (1997) UN doc CCPR/C/79/Add.5, para 17; Libyan Arab Jamahiriya (1998) UN doc CCPR/ C/79/Add.101, para 19; Japan (2008) UN doc CCPR/C/JPN/CO/5, para 32.

Minority Rights

837

groups within the relevant State. These types of laws often restrict or exclude specific permanent and non-permanent residents from full recognition as minority groups with minority rights.

Membership of a Minority [24.12]

LOVELACE v CANADA (24/77)

This case confirms that States Parties cannot constrict the definition of particular ‘minorities’, nor can they define membership of a minority. The facts are outlined immediately below: ¶1. The author of the communication . . . is a 32-year-old woman, living in Canada. She was born and registered as ‘Maliseet Indian’ but has lost her rights and status as an Indian in accordance with section 12 (1) (b) of the Indian Act, after having married a non-Indian on 23 May 1970. . . .

The State Party responded as follows: ¶5. . . . the State party recognised that ‘many of the provisions of the . . . Indian Act, including section 12 (1) (b), require serious reconsideration and reform’. . . . It none the less stressed the necessity of the Indian Act as an instrument designed to protect the Indian minority in accordance with article 27 of the Covenant. A definition of the Indian was inevitable in view of the special privileges granted to the Indian communities, in particular their right to occupy reserve lands. Traditionally, patrilineal family relationships were taken into account for determining legal claims. Since, additionally, in the farming societies of the nineteenth century, reserve land was felt to be more threatened by non-Indian men than by non-Indian women, legal enactments as from 1869 provided that an Indian woman who married a non-Indian man would lose her status as an Indian. These reasons were still valid. A change in the law could only be sought in consultation with the Indians themselves who, however, were divided on the issue of equal rights. The Indian community should not be endangered by legislative changes. Therefore, although the Government was in principle committed to amending section 12 (1) (b) of the Indian Act, no quick and immediate legislative action could be expected.

The HRC decided in favour of the author: ¶13.1. The Committee considers that the essence of the present complaint concerns the continuing effect of the Indian Act, in denying Sandra Lovelace legal status as an Indian, in particular because she cannot for this reason claim a legal right to reside where she wishes to, on the Tobique Reserve. . . . In this respect the significant matter is her . . . claim . . . that ‘the major loss to a person ceasing to be an Indian is the loss of the cultural benefits of living in an Indian community, the emotional ties to home, family, friends and neighbours, and the loss of identity’. ¶13.2. . . . It has to be considered whether Sandra Lovelace, because she is denied the legal right to reside on the Tobique Reserve, has by that fact been denied the right guaranteed by article 27 to persons belonging to minorities, to enjoy their own culture and to use their own language in community with other members of their group. ¶14. The rights under article 27 of the Covenant have to be secured to ‘persons belonging’ to the minority. At present Sandra Lovelace does not qualify as an Indian under Canadian

838

The ICCPR

legislation. However, the Indian Act deals primarily with a number of privileges which, as stated above, do not as such come within the scope of the Covenant. Protection under the Indian Act and protection under article 27 of the Covenant therefore have to be distinguished. Persons who are born and brought up on a reserve, who have kept ties with their community and wish to maintain these ties must normally be considered as belonging to that minority within the meaning of the Covenant. Since Sandra Lovelace is ethnically a Maliseet Indian and has only been absent from her home reserve for a few years during the existence of her marriage, she is, in the opinion of the Committee, entitled to be regarded as ‘belonging’ to this minority and to claim the benefits of article 27 of the Covenant. The question whether these benefits have been denied to her, depends on how far they extend. ¶15. The right to live on a reserve is not as such guaranteed by article 27 of the Covenant. Moreover, the Indian Act does not interfere directly with the functions which are expressly mentioned in that article. However, in the opinion of the Committee the right of Sandra Lovelace to access to her native culture and language ‘in community with the other members’ of her group, has in fact been, and continues to be interfered with, because there is no place outside the Tobique Reserve where such a community exists. On the other hand, not every interference can be regarded as a denial of rights within the meaning of article 27. Restrictions on the right to residence, by way of national legislation, cannot be ruled out under article 27 of the Covenant. This also follows from the restrictions to article 12 (1) of the Covenant set out in article 12 (3). The Committee recognizes the need to define the category of persons entitled to live on a reserve, for such purposes as those explained by the Government regarding protection of its resources and preservation of the identity of its people. However, the obligations which the Government has since undertaken under the Covenant must also be taken into account. ¶16. In this respect, the Committee is of the view that statutory restrictions affecting the right to residence on a reserve of a person belonging to the minority concerned, must have both a reasonable and objective justification and be consistent with the other provisions of the Covenant, read as a whole. Article 27 must be construed and applied in the light of the other provisions mentioned above, such as articles 12, 17 and 23 in so far as they may be relevant to the particular case, and also the provisions against discrimination, such as articles 2, 3 and 26, as the case may be. It is not necessary, however, to determine in any general manner which restrictions may be justified under the Covenant, in particular as a result of marriage, because the circumstances are special in the present case. ¶17. The case of Sandra Lovelace should be considered in the light of the fact that her marriage to a non-Indian has broken up. It is natural that in such a situation she wishes to return to the environment in which she was born, particularly as after the dissolution of her marriage her main cultural attachment again was to the Maliseet band. Whatever may be the merits of the Indian Act in other respects, it does not seem to the Committee that to deny Sandra Lovelace the right to reside on the reserve is reasonable, or necessary to preserve the identity of the tribe. The Committee therefore concludes that to prevent her recognition as belonging to the band is an unjustifiable denial of her rights under article 27 of the Covenant, read in the context of the other provisions referred to.

Thus the Committee found that Ms Lovelace’s access to her indigenous culture and language was unjustifiably restricted by the Indian Act, so a breach of article 27 was made out. This decision was ostensibly confined to apply in the particular circumstances of Lovelace’s ostracism, which included the fact of her divorce

Minority Rights

839

from her non-Indian husband. However, it is likely that the sexist application of the Indian Act would have breached the Covenant in any case.17 [24.13] Canada’s Indian Act was subsequently amended to address the issues raised by the Lovelace decision. The amendments allowed women who had married non-Indians before 1985 to rejoin their bands, but imposed a restriction on acceptance of children of inter-racial marriages born after 1985. Interestingly, in RL et al v Canada (358/89), the authors complained that the amendment restricted the band’s right to determine its own membership. The complaint was eventually found inadmissible for failure to exhaust local remedies. It is regrettable that the HRC was not able to consider the merits of the complaint. Paragraph 5.2 of General Comment 23 states that the classification of minority membership is ‘objective’ [24.10]. Whilst this objectivity clearly prevents a State from conclusively defining a minority for the purposes of article 27, it probably also precludes a minority group from conclusively defining its own membership, especially in circumstances that undermine a putative member’s personal minority rights.18 [24.14] In Concluding Observations on Canada in 1999, the HRC commented on the post-Lovelace amendments:19 ¶20. . . . Although the Indian status of women who had lost status because of marriage was reinstituted, this amendment affects only the woman and her children, not subsequent generations, which may still be denied membership of the community. The Committee recommends that these issues be addressed by the State party.

Indigenous People and Article 27 [24.15] ‘Indigenous peoples’ in the international context may be understood as ‘those living descendants of pre-invasion inhabitants of lands now dominated by others’.20 Indigenous peoples are treated as a ‘minority’ for the purposes of the application of article 27. This is irrespective of assertions by some indigenous peoples that they are not ‘minorities’ but in fact have a different and special status under international law. Whilst some modern instruments, such as the UN Declaration on Indigenous Rights and the ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (No 169), address indigenous people as discrete groupings, separate from minorities in general, the HRC has not adopted this analysis. In General Comment 23, at paragraphs 3.2 [24.02] and 7 [24.22], the HRC confirmed that indigenous

17 The provisions would probably have breached art 27, read in conjunction with the non-discrimination guarantees in arts 2(1), 3, and 26. See also General Comment 28, para 32. 18 19 See eg [24.18]ff. (1999) UN doc CCPR/C/79/Add.105. 20 SJ Anaya, Indigenous People and International Law (Oxford University Press, 1996), 3. Anaya explains that Indigenous people ‘have been deprived of vast landholdings, and access to life sustaining resources, and they have suffered . . . activ[e] suppress[ion] [of] their political and cultural institutions. As a result indigenous people have been crippled economically and socially, their cohesiveness as communities has been damaged or threatened, and the integrity of their cultures has been undermined’, 4.

840

The ICCPR

peoples are minorities for the purposes of article 27. Indeed, many article 27 cases have concerned indigenous minority rights.21 [24.16] The Committee on the Elimination of Racial Discrimination (CERD) has issued a General Recommendation on Indigenous Rights under the International Convention on the Elimination of Racial Discrimination. CERD GENERAL RECOMMENDATION 23 ¶3. The Committee is conscious of the fact that in many regions of the world indigenous peoples have been, and are still being, discriminated against, deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently the preservation of their culture and their historical identity has been and still is jeopardised. ¶4. The [CERD] Committee calls in particular upon States parties to: (a) recognise and respect indigenous distinct culture, history, language and way of life as an enrichment of the State’s cultural identity and to promote its preservation; (b) ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity; (c) provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics; (d) ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent; (e) ensure that indigenous communities can exercise their rights to practice and revitalize their cultural traditions and customs, to preserve and to practice their languages.

[24.17] Despite the preponderance of article 27 complaints from indigenous peoples, the record of success for such complaints under the Optional Protocol is very low, as indicated below. It may be that the systemic nature of indigenous human rights failings has rendered the Optional Protocol, which deals with individual rather than systemic abuses, an inadequate vehicle for addressing such abuses [1.116].

21 In addition to the wide-ranging analysis provided by Anaya, Indigenous People and International Law, there is considerable commentary on the nature of the rights of indigenous people at international law; for instance see R Barsh, ‘Indigenous Peoples in the 1990s: From Object to Subject of International Law?’ (1994) 7 Harvard Human Rights Journal 33; B Kingsbury, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law’ (2001) 34 NYU Journal of International Law and Politics 189; and Alexandra Xanthaki, Indigenous Rights and United Nations Standards: Self-determination, Culture and Land (Cambridge University Press, 2007).

Minority Rights

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Individual Rights and Group Rights [24.18]

KITOK v SWEDEN (197/85)

The facts are evident from the HRC’s decision below: ¶9.1. The main question before the Committee is whether the author of the communication is the victim of a violation of article 27 of the Covenant because, as he alleges, he is arbitrarily denied immemorial rights granted to the Sami community, in particular, the right to membership of the Sami community and the right to carry out reindeer husbandry. In deciding whether or not the author of the communication has been denied the right to ‘enjoy his own culture’, as provided for in article 27 of the Covenant, and whether section 12, paragraph 2, of the 1971 Reindeer Husbandry Act, under which an appeal against a decision of a Sami community to refuse membership may only be granted if there are special reasons for allowing such membership, violates article 27 of the Covenant, the Committee bases its findings on the following considerations. . . . ¶9.5. According to the State party, the purposes of the Reindeer Husbandry Act are to restrict the number of reindeer breeders for economic and ecological reasons and to secure the preservation and well-being of the Sami minority. Both parties agree that effective measures are required to ensure the future of reindeer breeding and the livelihood of those for whom reindeer farming is the primary source of income. The method selected by the State party to secure these objectives is the limitation of the right to engage in reindeer breeding to members of the Sami villages. The Committee is of the opinion that all these objectives and measures are reasonable and consistent with article 27 of the Covenant. ¶9.6. The Committee has none the less had grave doubts as to whether certain provisions of the Reindeer Husbandry Act, and their application to the author, are compatible with article 27 of the Covenant. Section 11 of the Reindeer Husbandry Act provides that: A member of a Sami community is: 1. A person entitled to engage in reindeer husbandry who participates in reindeer husbandry within the pasture area of the community. 2. A person entitled to engage in reindeer husbandry who has participated in reindeer husbandry within the pasture area of the village and who has had this as his permanent occupation and has not gone over to any other main economic activity. 3. A person entitled to engage in reindeer husbandry who is the husband or child living at home of a member as qualified in subsection 1 or 2 or who is the surviving husband or minor child of a deceased member.’ Section 12 of the Act provides that: ‘A Sami community may accept as a member a person entitled to engage in reindeer husbandry other than as specified in section 11, if he intends to carry on reindeer husbandry with his own reindeer within the pasture area of the community. If the applicant should be refused membership, the Landsstyrelsen may grant him membership, if special reasons should exist.’ ¶9.7. It can thus be seen that the Act provides certain criteria for participation in the life of an ethnic minority whereby a person who is ethnically a Sami can be held not to be a

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Sami for the purpose of the Act. The Committee has been concerned that the ignoring of objective ethnic criteria in determining membership of a minority, and the application to Mr Kitok of the designated rules, may have been disproportionate to the legitimate ends sought by the legislation. It has further noted that Mr Kitok has always retained some links with the Sami community, always living on Sami lands and seeking to return to full-time reindeer farming as soon as it became financially possible, in his particular circumstances, for him to do so. ¶9.8. In resolving this problem, in which there is an apparent conflict between the legislation, which seems to protect the rights of the minority as a whole, and its application to a single member of that minority, the Committee has been guided by the ratio decidendi in the Lovelace case, namely, that a restriction upon the right of an individual member of a minority must be shown to have a reasonable and objective justification and to be necessary for the continued viability and welfare of the minority as a whole. After a careful review of all the elements involved in this case, the Committee is of the view that there is no violation of article 27 by the state party. In this context the Committee notes that Mr Kitok is permitted, albeit not as of right, to graze and farm his reindeer, to hunt and to fish.

[24.19] Kitok squarely raises issues regarding the potential clash between the minority rights of an individual and the minority rights of a group.22 Indeed, the case illustrates how one’s individual minority rights can be validly limited by countervailing minority group rights, although the rights protected under the Convention are generally understood to be rights held by individuals, and not by groups. Thus the group rights protected under article 27 seem subject to a perennial tension.23 This same tension is evidenced in a comparison between the complaint in Lovelace, and in the inadmissible case of RL v Canada, where the legislative amendments inspired by Lovelace were the subject of complaint [24.13]. In Concluding Observations on Canada, the HRC has stated:24 ¶22. The Committee notes with concern that the Canadian Human Rights Act cannot affect any provision of the Indian Act or any provision made under or pursuant to that Act, thus allowing discrimination to be practised as long as it can be justified under the Indian Act. It is concerned that the discriminatory effects of the Indian Act against Aboriginal women and their children in matters of reserve membership have still not been remedied, and that the issue of matrimonial real property on reserve lands has still not been properly addressed. While stressing the obligation of the State party to seek the informed consent of indigenous peoples before adopting decisions affecting them [24.35] and welcoming the initiatives taken to that end, the Committee observes that balancing collective and individual interests on reserves to the sole detriment of women is not compatible with the Covenant (arts. 2, 3, 26 and 27). The State party should repeal section 67 of the Canadian Human Rights Act without further delay. The State party should, in consultation with Aboriginal peoples, adopt measures ending discrimination actually suffered by Aboriginal women in matters of reserve membership and matrimonial property, and consider this issue as a high priority. The State party should also ensure equal funding of Aboriginal men and women associations.

22 See also J Debeljak, ‘Barriers to the Recognition of Indigenous Peoples’ Human Rights at the United Nations’ (2000) 26 Monash University Law Review 159 at 169. 23 24 See also General Comment 23, para 9 [24.01]. (2005) UN doc CCPR/C/CAN/CO/5.

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[24.20] A clash between minority rights within members of a designated group is also evident in the next case. MAHUIKA v NEW ZEALAND (547/93) The authors of this case were 19 Maoris belonging to seven different iwi (tribes). They claimed that their traditional rights to fish were abrogated by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (NZ) in contravention of article 27. The background to the complaint was as follows. Upon British settlement of New Zealand in 1840, the Treaty of Waitangi was struck between the British Crown and the indigenous Maori peoples. The Treaty guaranteed the Maoris their rights of self-determination, including their rights to control tribal fisheries. The Treaty is not itself enforceable in New Zealand law, but it does have great political and moral force. Throughout the late 1980s and early 1990s, the New Zealand government and Maori negotiators sought to agree on the precise extent of Maori rights over commercial and non-commercial fishing. A quota system had been implemented to address concerns about diminishing fish stocks, early incarnations of which were found to breach Maori rights. The negotiations finally resulted in the passage of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (‘the Settlement’), which vested the Maori with over 40 per cent of New Zealand’s commercial fishing quota. Non-commercial fishing was to be governed by regulations to be made after further consultation with the Maori. The statute represented a final settlement of all Maori fishing claims, commercial and non-commercial, so traditional Maori fishing rights were no longer justiciable in ordinary courts. The responsibility for attaining Maori consent for the settlement during the negotiations ostensibly rested with the Maori negotiators. The negotiators reported in 1992 that 50 tribes representing 208,681 Maori supported the settlement, 15 tribes representing 24,501 Maori opposed the proposed settlement, and seven tribes comprising 84,225 Maori were divided in their views. Upon receiving this report, the New Zealand government was satisfied that there was a sufficient mandate amongst the Maori for the settlement. On 23 September 1992, the government executed a Deed of Settlement with Maori representatives, the terms of which were enshrined in the Settlement Act. The authors in Mahuika v New Zealand were members of tribes that opposed the settlement. Furthermore, they argued that the process of seeking consent was inadequate. ¶5.8. According to the authors the contents of the Memorandum of Understanding were not always adequately disclosed or explained to tribes and sub-tribes. In some cases, therefore, informed decision-making on the proposals contained in the Memorandum of understanding was seriously inhibited. The authors emphasize that while some of the iwi were supportive of the proposed Sealords deal,25 a significant number of tribes and sub-tribes either 25 The Settlement is often referred to as the Sealords deal, as it involved the partial purchase by Maori of a major New Zealand fishing company called ‘Sealords’.

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opposed the deal completely or were prepared to give it conditional support only. The authors further note that the Maori negotiators have been at pains to make clear that they had no authority and did not purport to represent individual tribes and sub-tribes in relation to any aspect of the Sealords deal, including the conclusion and signing of the Deed of Settlement. ¶5.9. The Deed was signed by 110 signatories. . . . The authors observe that one of the difficulties of ascertaining the precise number of tribes who signed the Deed of Settlement relates to verification of authority to sign on behalf of the tribes, and claim that it is apparent that a number of signatories did not possess such authority or that there was doubt as to whether they possessed such authority. The authors note that tribes claiming major commercial fisheries resources, were not among the signatories.

The article 27 complaint was as follows: ¶6.2. The authors claim that the Government’s actions are threatening their way of life and the culture of their tribes, in violation of article 27 of the Covenant. They submit that fishing is one of the main elements of their traditional culture, that they have present-day fishing interests and the strong desire to manifest their culture through fishing to the fullest extent of their traditional territories. They further submit that their traditional culture comprises commercial elements and does not distinguish clearly between commercial and other fishing. They claim that the new legislation removes their right to pursue traditional fishing other than in the limited sense preserved by the law and that the commercial aspect of fishing is being denied to them in exchange for a share in fishing quota. . . . ¶8.3. . . . They contest the State party’s position that the right of Maori to engage in fisheries activities has been ‘secured’ by the provisions of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and the Maori Fisheries Act 1989. Indeed, they claim that these rights have been effectively extinguished and/or abrogated and that the benefits provided to Maori under the legislation do not constitute lawful satisfaction. It is submitted that the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 imposes an artificial division upon their fishing rights or interests in their fisheries without regard to the sacred nature of the relationship which exists between the authors (both personal and tribal) and their fisheries; it effectively curtails the ability of the authors, and their tribes or sub-tribes, to protect their fisheries for future generations; it extinguishes and/or effectively abrogates their common law and Treaty of Waitangi rights or interests; it affects their ability to harvest and manage their fisheries in accordance with their cultural and religious customs and traditions; and it imposes a regime which relocates regulatory power over Maori fisheries in the hands of the Director-General of Fisheries.

The HRC decided in favour of the State Party: ¶9.3. The first issue before the Committee therefore is whether the authors’ rights under article 27 of the Covenant have been violated by the Fisheries Settlement, as reflected in the Deed of Settlement and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. It is undisputed that the authors are members of a minority within the meaning of article 27 of the Covenant; it is further undisputed that the use and control of fisheries is an essential element of their culture. In this context, the Committee recalls that economic activities may come within the ambit of article 27, if they are an essential element of the culture of a community. The recognition of Maori rights in respect of fisheries by the Treaty of Waitangi confirms that the exercise of these rights is a significant part of Maori culture. However, the

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compatibility of the 1992 Act with the Treaty of Waitangi is not a matter for the Committee to determine. ¶9.5. . . . The Committee acknowledges that the Treaty of Waitangi (Fisheries Settlement) Act 1992 and its mechanisms limit the rights of the authors to enjoy their own culture. ¶9.6. The Committee notes that the State party undertook a complicated process of consultation in order to secure broad Maori support to a nation-wide settlement and regulation of fishing activities. Maori communities and national Maori organizations were consulted and their proposals did affect the design of the arrangement. The Settlement was enacted only following the Maori representatives’ report that substantial Maori support for the Settlement existed. For many Maori, the Act was an acceptable settlement of their claims. The Committee has noted the authors’ claims that they and the majority of members of their tribes did not agree with the Settlement and that they claim that their rights as members of the Maori minority have been overridden. In such circumstances, where the right of individuals to enjoy their own culture is in conflict with the exercise of parallel rights by other members of the minority group, or of the minority as a whole, the Committee may consider whether the limitation in issue is in the interests of all members of the minority and whether there is reasonable and objective justification for its application to the individuals who claim to be adversely affected. ¶9.7. As to the effects of the agreement, the Committee notes that before the negotiations which led to the Settlement the Courts had ruled earlier that the Quota Management System was in possible infringement of Maori rights because in practice Maori had no part in it and were thus deprived of their fisheries. With the Settlement, Maori were given access to a great percentage of quota, and thus effective possession of fisheries was returned to them. In regard to commercial fisheries, the effect of the Settlement was that Maori authority and traditional methods of control as recognized in the Treaty were replaced by a new control structure, in an entity in which Maori share not only the role of safeguarding their interests in fisheries but also the effective control. In regard to noncommercial fisheries, the Crown obligations under the Treaty of Waitangi continue, and regulations are made recognising and providing for customary food gathering. ¶9.8. In the consultation process, special attention was paid to the cultural and religious significance of fishing for the Maori, inter alia to securing the possibility of Maori individuals and communities to engage themselves in non-commercial fishing activities. While it is a matter of concern that the settlement and its process have contributed to divisions amongst Maori, nevertheless, the Committee concludes that the State party has, by engaging itself in the process of broad consultation before proceeding to legislate, and by paying specific attention to the sustainability of Maori fishing activities, taken the necessary steps to ensure that the Fisheries Settlement and its enactment through legislation, including the Quota Management System, are compatible with article 27. ¶9.9. The Committee emphasizes that the State party continues to be bound by article 27 which requires that the cultural and religious significance of fishing for Maori must deserve due attention in the implementation of the Treaty of Waitangi (Fisheries Claims) Settlement Act. . . . [T]he Committee emphasizes that in order to comply with article 27, measures affecting the economic activities of Maori must be carried out in a way that the authors continue to enjoy their culture, and profess and practice their religion in community with other members of their group. The State party is under a duty to bear this in mind in the further implementation of the Treaty of Waitangi (Fisheries Claims) Settlement Act.

The ICCPR

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As in Kitok, the authors’ minority rights in Mahuika were essentially trumped by countervailing minority rights of other Maori. [24.21] The HRC would probably come to the same conclusion with regard to any legislative settlement of outstanding traditional indigenous claims in other countries, so long as strong support amongst the relevant indigenous group for the settlement could be demonstrated.26 Such support was evident in Mahuika, given the existence of the Deed of Settlement.27 However, such settlements will always be controversial given possible disputes over the mandate of indigenous negotiators to act on behalf of their people and the potential lack of unanimous support for resultant agreements. Yet equitable legislative settlements may be desirable given the consequent stability afforded to the legal process as it deals with the conflicting claims and interests of indigenous people and non-indigenous people, and the practical difficulties of redressing all of the historical injustices inflicted upon indigenous people.28

Substantive Content: What is Protected under Article 27? CULTURE

[24.22]

GENERAL COMMENT 23

¶7. With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing29 or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.

[24.23] In a series of cases concerning the Nordic Sami peoples and their reindeer-herding practices, the HRC had to consider whether reindeer husbandry amounted to a cultural activity protected within the scope of article 27. In Kitok v Sweden (197/85), this question was answered in the affirmative: ¶9.2. The regulation of an economic activity is normally a matter for the State alone. However, where that activity is an essential element in the culture of an ethnic community, its application to an individual may fall under article 27 of the Covenant. . . .

[24.24] Kitok confirms a broad and flexible interpretation of ‘culture’ within the scope of article 27. ‘Culture’ will certainly embrace the maintenance of traditional beliefs and practices, but will also include those social and economic activities 26 See also Concluding Observations on New Zealand, (2010) UN doc CCPR/C/NZL/CO/5, paras 19 and 20. 27 See also Länsman et al v Finland (671/95), para 10.5 [24.31]. 28 See S Joseph, ‘Human Rights Committee: Recent Cases’ (2001) 1 Human Rights Law Review 83 at 86. 29 Fishing was found to be ‘an integral part of the author’s culture’ in Howard v Canada (879/99), para 10.3; see also Mahuika v New Zealand (547/93) [24.20].

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that are a part of the group’s tradition. Indeed, in Länsman v Finland (511/92), the HRC states, in a case regarding the cultural rights of Sami people to herd reindeer: 30

¶9.3. . . . The right to enjoy one’s culture cannot be determined in abstracto but has to be placed in context. In this connection, the Committee observes that article 27 does not only protect traditional means of livelihood of national minorities, as indicated in the State party’s submission. Therefore, that the authors may have adapted their methods of reindeer herding over the years and practice it with the help of modern technology does not prevent them from invoking article 27 of the Covenant. . . .

In Mahuika v New Zealand (547/93), the HRC again confirmed that article 27 protects the adaptation of traditional cultures ‘to the modern way of life’.31 [24.25]

DIERGAARDT v NAMIBIA (760/97)

The facts of this case are outlined below: ¶2.1. The members of the Rehoboth Baster Community are descendants of indigenous Khoi and Afrikaans settlers who originally lived in the Cape, but moved to their present territory in 1872. They were governed by their ‘paternal laws’, which provided for the election of a Captain, and for rights and duties of citizens. At present, the community numbers some 35,000 people and the area they occupy (south of Windhoek) has a surface of 14,216 square kilometres. In this area the Basters developed their own society, culture, language and economy, with which they largely sustained their own institutions, such as schools and community centres.

Throughout much of the twentieth century, the territory of Namibia was effectively under the control of South Africa. South Africa’s territorial control was found by the International Court of Justice in the Namibia case in 1970 to breach international law.32 In 1976, the Rehoboth people were granted self-government by South Africa. In 1989, the Rehoboth people, according to the communication, accepted ‘under extreme political pressure, the temporary transfer of their legislative and executive powers into the person of the Administrator-General of South West Africa, so as to comply with UN Security Council resolution 435 (1978)’.33 However, the authors argued that this transfer was temporary (according to their own legislative motion), and expired on the day before Namibia gained independence in 1990. Thus, according to the authors, their legal status was that of an independent people within Namibia. ¶2.5. The authors submit that the Government of Namibia did not recognize their independence and the return to the status quo ante, but expropriated all communal land of the community through application of schedule 5 of the Constitution . . . 30 See B Kingsbury, ‘Claims by Non-State Groups in International Law’ (1992) 25 Cornell ILJ 481 at 491. 31 At para 9.4. 32 See Legal Consequences for States of the Continued Presence of South Africa in Nambia (South-West Africa) notwithstanding Security Council Resolution 276, Advisory Opinion [1971] ICJ Rep 16. 33 At para 2.4.

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According to the counsel, this has had the effect of annihilating the means of subsistence of the community, since communal land and property was denied. ¶3.1. . . . Counsel submits that this policy endangers the traditional existence of the community as a collective of mainly cattle raising farmers. He explains that in times of drought (as at the time when the communication was submitted) the community needs communal land, on which pasture rights are given to members of the community on a rotating basis. The expropriation of the communal land and the consequential privatization of it, as well as the overuse of the land by inexperienced newcomers to the area, has led to bankruptcy for many community farmers, who have had to slaughter their animals. As a consequence, they cannot pay their interests on loans granted to them by the Development Corporation (which used to be communal property but has now been seized by the Government), their houses are then sold to the banks and they find themselves homeless. Counsel emphasizes that the confiscation of all property collectively owned by the community robbed the community of the basis of its economic livelihood, which in turn was the basis of its cultural, social and ethnic identity. This is said to constitute a violation of article 27.

The HRC found in favour of the State Party: ¶10.4. The authors have made available to the Committee the judgement which the Supreme Court gave on 14 May 1996 on appeal from the High Court which had pronounced on the claim of the Baster community to communal property. Those courts made a number of findings of fact in the light of the evidence which they assessed and gave certain interpretations of the applicable domestic law. The authors have alleged that the land of their community has been expropriated and that, as a consequence, their rights as a minority are being violated since their culture is bound up with the use of communal land exclusive to members of their community. This is said to constitute a violation of Article 27 of the Covenant. . . . ¶10.6. To conclude on this aspect of the complaint, the Committee observes that it is for the domestic courts to find the facts in the context of, and in accordance with, the interpretation of domestic laws. On the facts found, if ‘expropriation’ there was, it took place in 1976, or in any event before the entry into force of the Covenant and the Optional Protocol for Namibia on 28 February 1995. As to the related issue of the use of land, the authors have claimed a violation of article 27 in that a part of the lands traditionally used by members of the Rehoboth community for the grazing of cattle no longer is in the de facto exclusive use of the members of the community. Cattle raising is said to be an essential element in the culture of the community. As the earlier case law by the Committee illustrates, the right of members of a minority to enjoy their culture under article 27 includes protection to a particular way of life associated with the use of land resources through economic activities, such as hunting and fishing, especially in the case of indigenous peoples. However, in the present case the Committee is unable to find that the authors can rely on article 27 to support their claim for exclusive use of the pastoral lands in question. This conclusion is based on the Committee’s assessment of the relationship between the authors’ way of life and the lands covered by their claims. Although the link of the Rehoboth community to the lands in question dates back some 125 years, it is not the result of a relationship that would have given rise to a distinctive culture. Furthermore, although the Rehoboth community bears distinctive properties as to the historical forms of self-government, the authors have failed to demonstrate how these factors would be based on their way of raising cattle. The

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Committee therefore finds that there has been no violation of article 27 of the Covenant in the present case.

[24.26] The Rehoboth Basters’ particular cultural practices dated back only 125 years, a significantly shorter period than the cultural rights identified in the cases concerning indigenous Sami and Maori peoples. Furthermore, the alleged cultural activity, cattle grazing, was not found to be sufficiently ‘distinctive’ to activate article 27. Unfortunately, the HRC’s reasoning in this case is conclusory, and does not give a reader many clues as to how distinctiveness is determined [22.05]. Mrs Evatt and Ms Medina Quiroga, in a concurring opinion, shed some much-needed light on this issue: It is clear on the facts and from the 1996 decision of the High Court that the ownership of the communal lands of the community had been acquired by the government of Namibia before the coming into force of the Covenant and the Optional Protocol and that the authors cannot substantiate a claim on the basis of any expropriation. However, the significant aspect of the authors’ claim under article 27 is that they have, since that date, been deprived of the use of lands and certain offices and halls that had previously been held by their government for the exclusive use and benefit of members of the community. Privatization of the land and overuse by other people has, they submit, deprived them of the opportunity to pursue their traditional pastoral activities. The loss of this economic base to their activities has, they claim, denied them the right to enjoy their own culture in community with others. This claim raises some difficult issues as to how the culture of a minority which is protected by the Covenant is to be defined, and what role economic activities have in that culture. These issues are more readily resolved in regard to indigenous communities which can very often show that their particular way of life or culture is, and has for long been, closely bound up with particular lands in regard to both economic and other cultural and spiritual activities, to the extent that the deprivation of or denial of access to the land denies them the right to enjoy their own culture in all its aspects. In the present case, the authors have defined their culture almost solely in terms of the economic activity of grazing cattle. They cannot show that they enjoy a distinct culture which is intimately bound up with or dependent on the use of these particular lands, to which they moved a little over a century ago, or that the diminution of their access to the lands has undermined any such culture. Their claim is, essentially, an economic rather than a cultural claim and does not draw the protection of article 27.

Thus, while Kitok and other cases have confirmed that culture can include economic activities [24.24], economic activities per se do not equate with cultural activities. The Rehoboth Basters could not demonstrate any cultural/spiritual attachment to their grazing activities beyond its plainly economic purpose. Economic Development and its Impact on Culture [24.27]

CHIEF OMINAYAK and the LUBICON LAKE BAND v CANADA (167/84)

The Lubicon Lake Cree Indians of northern Alberta in Canada, represented by their Chief, Bernard Ominayak, complained of violation of their rights to enjoy their own culture. They argued that the province of Alberta, and thus Canada,34 34

See discussion of the application of the ICCPR in federal States at [1.29].

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had allowed private oil and gas exploration activities to threaten their way of life, and therefore their culture. The violation was manifested by the threat of destruction of the Band’s economic base, and the continuity of its indigenous traditions and practices, thus endangering the Band’s survival as a people. On the merits, the Committee found that: ¶32.2. . . . The Committee recognizes that the rights protected by article 27, include the right of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong. . . . ¶33. Historical inequities, to which the State party refers, and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of article 27 so long as they continue. . . .

The Ominayak decision was curiously brief. However, it confirmed that economic development projects can be trumped by a State’s duty to protect article 27 cultural rights. [24.28] The HRC went on in Ominayak at paragraph 33 to say that ‘[t]he State party proposes to rectify the situation by a remedy that the Committee deems appropriate within the meaning of article 2 of the Covenant’. The proposed remedy was a compensation award for the impugned expropriation of 95 square miles of Lubicon land. Strangely, this same remedy had been deemed ineffective for the purposes of admissibility [6.22]. It may be noted that by 2005, 15 years after the Ominayak decision, negotiations between Canada and the Lubicon Lake band were at an ‘impasse’, with the HRC ‘concerned about information that the land of the Band continues to be compromised by logging and large-scale oil and gas extraction’.35 [24.29] Article 27 rights are not explicitly limited. However, they are implicitly limited as explained in the following case. LÄNSMAN v FINLAND (511/92) In this case, the authors, Ilmari Länsman and 47 other members of the Muotkatunturi Herdsmen’s Committee and members of the Angeli local community claimed to be the victims of a violation by Finland of article 27, when the government authorized quarrying works which disturbed the authors’ traditional reindeer-herding practices. The HRC decided in favour of the State Party. Pertinent facts are evident from the following excerpts of its decision: ¶9.1. The Committee has examined the present communication in the light of all the information provided by the parties. The issue to be determined by the Committee is whether quarrying on the flank of Mt. Etelä-Riutusvaara, in the amount that has taken place until the present time or in the amount that would be permissible under the permit issued to the company which has expressed its intention to extract stone from the mountain (i.e. up to a total of 5,000 cubic metres), would violate the authors’ rights under article 27 of the Covenant.

35

See Concluding Observations on Canada (2006) UN doc CCPR/C/CAN/CO/5, para 9.

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¶9.2. It is undisputed that the authors are members of a minority within the meaning of article 27 and as such have the right to enjoy their own culture; it is further undisputed that reindeer husbandry is an essential element of their culture. In this context, the Committee recalls that economic activities may come within the ambit of article 27, if they are an essential element of the culture of an ethnic community (Views on communication No. 197/1985 (Kitok v Sweden), adopted on 27 July 1988, paragraph 9.2.) ¶9.3. The right to enjoy one’s culture cannot be determined in abstracto but has to be placed in context. In this connection, the Committee observes that article 27 does not only protect traditional means of livelihood of national minorities, as indicated in the State party’s submission. Therefore, that the authors may have adapted their methods of reindeer herding over the years and practice it with the help of modern technology does not prevent them from invoking article 27 of the Covenant. Furthermore, mountain Riutusvaara continues to have a spiritual significance relevant to their culture. The Committee also notes the concern of the authors that the quality of slaughtered reindeer could be adversely affected by a disturbed environment. ¶9.4. A State may understandably wish to encourage development or allow economic activity by enterprises. The scope of its freedom to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27. Article 27 requires that a member of a minority shall not be denied his right to enjoy his culture. Thus, measures whose impact amount to a denial of the right will not be compatible with the obligations under article 27. However, measures that have a certain limited impact on the way of life of persons belonging to a minority will not necessarily amount to a denial of the right under article 27. ¶9.5. The question that therefore arises in this case is whether the impact of the quarrying on Mount Riutusvaara is so substantial that it does effectively deny to the authors the right to enjoy their cultural rights in that region. The Committee recalls paragraph 7 of its General Comment on article 27, according to which minorities or indigenous groups have a right to the protection of traditional activities such as hunting, fishing or, as in the instant case, reindeer husbandry, and that measures must be taken ‘to ensure the effective participation of members of minority communities in decisions which affect them’. ¶9.6. Against this background, the Committee concludes that quarrying on the slopes of Mt. Riutusvaara, in the amount that has already taken place, does not constitute a denial of the authors’ right, under article 27, to enjoy their own culture. It notes in particular that the interests of the Muotkatunturi Herdsmens’ Committee and of the authors were considered during the proceedings leading to the delivery of the quarrying permit, that the authors were consulted during the proceedings, and that reindeer herding in the area does not appear to have been adversely affected by such quarrying as has occurred. ¶9.7. As far as future activities which may be approved by the authorities are concerned, the Committee further notes that the information available to it indicates that the State party’s authorities have endeavoured to permit only quarrying which would minimise the impact on any reindeer herding activity in Southern Riutusvaara and on the environment; the intention to minimise the effects of extraction of stone from the area on reindeer husbandry is reflected in the conditions laid down in the quarrying permit. Moreover, it has been agreed that such activities should be carried out primarily outside the period used for reindeer pasturing in the area. Nothing indicates that the change in herding methods by

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the Muotkatunturi Herdsmens’ Committee . . . could not be accommodated by the local forestry authorities and/or the company. ¶9.8. With regard to the authors’ concerns about future activities, the Committee notes that economic activities must, in order to comply with article 27, be carried out in a way that the authors continue to benefit from reindeer husbandry. Furthermore, if mining activities in the Angeli area were to be approved on a large scale and significantly expanded by those companies to which exploitation permits have been issued, then this may constitute a violation of the authors’ rights under article 27, in particular of their right to enjoy their own culture. The State party is under a duty to bear this in mind when either extending existing contracts or granting new ones.

The HRC essentially decided that the impugned mining activities did not have an unduly detrimental effect on Sami cultural activities. This decision was prompted by the State Party’s evidence that the quarrying occurred only during seasons when reindeer herds were out of the area,36 and of the relatively small size of the quarry site and the amount of extracted stone.37 [24.30] In its defence, the State had submitted the following: ¶7.12. The State . . . claims that the Human Rights Committee’s Views in the case of Kitok [Case No. 197/1985,] imply that the Committee endorses the principle that States enjoy a certain degree of discretion in the application of article 27—which is normal in all regulation of economic activities. According to the State party, this view is supported by the decisions of the highest tribunals of States parties to the Covenant and the European Commission on Human Rights. ¶7.13. The State party concludes that the requirements of article 27 have ‘continuously been taken into consideration by the national authorities in their application and implementation of the national legislation and the measures in question’. It reiterates that a margin of discretion must be left to national authorities even in the application of article 27 . . .

Though the HRC evidently accepted that the mining activities had ‘a very limited impact’ at paragraph 9.4, it rejected the argument that the case could be determined by reference to a ‘margin of discretion’ for the State Party.38 Thus, the HRC indicated that it will retain a strong supervisory role in monitoring implementation of article 27. Nevertheless, the HRC also appears willing to give States Parties considerable leeway before finding that development measures pose such a threat to traditional cultures that they breach article 27. This is evinced in the second Länsman case, excerpted directly below. [24.31]

LÄNSMAN et al v FINLAND (671/95)

The Sami of Finland again issued a complaint to the HRC, invoking paragraph 9.8 of the first Länsman case [24.29], which it interpreted as a warning to the State Party regarding implementation of new measures affecting the living conditions of local Samis. In the second Länsman case, the authors challenged the plans of the Finnish 36 38

At para 7.4. On the margin of discretion or the margin of appreciation, see [18.69].

37

At paras 7.5 and 7.9.

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Central Forestry Board to approve logging and the construction of roads in an area covering about 3,000 hectares of the winter herding grounds of the Muotkatunturi Herdsmen’s Committee. The HRC expressed its view as follows: ¶10.1. . . . The issue to be determined is whether logging of forests in an area covering approximately 3,000 hectares of the area of the Muotkatunturi Herdsmen’s Committee (of which the authors are members)—i.e. such logging as has already been carried out and future logging—violates the authors’ rights under article 27 of the Covenant. . . . ¶10.3. Article 27 requires that a member of a minority shall not be denied the right to enjoy his culture. Measures whose impact amounts to a denial of the right are incompatible with the obligations under article 27. As noted by the Committee previously in [the first Länsman case] however, measures that have a certain limited impact on the way of life and the livelihood of persons belonging to a minority will not necessarily amount to a denial of the rights under article 27. ¶10.4. The crucial question to be determined in the present case is whether the logging that has already taken place within the area specified in the communication, as well as such logging as has been approved for the future and which will be spread over a number of years, is of such proportions as to deny the authors the right to enjoy their culture in that area. The Committee recalls the terms of paragraph 7 of its General Comment on article 27, according to which minorities or indigenous groups have a right to the protection of traditional activities such as hunting, fishing or reindeer husbandry, and that measures must be taken ‘ensure the effective participation of members of minority communities in decisions which affect them’. ¶10.5. After careful consideration of the material placed before it by the parties, and duly noting that the parties do not agree on the long-term impact of the logging activities already carried out and planned, the Committee is unable to conclude that the activities carried out as well as approved constitute a denial of the authors’ right to enjoy their own culture. It is uncontested that the Muotkatunturi Herdsmen’s Committee, to which the authors belong, was consulted in the process of drawing up the logging plans and in the consultation, the Muotkatunturi Herdsmen’s Committee did not react negatively to the plans for logging. That this consultation process was unsatisfactory to the authors and was capable of greater interaction does not alter the Committee’s assessment. It transpires that the State party’s authorities did go through the process of weighing the authors’ interests and the general economic interests in the area specified in the complaint when deciding on the most appropriate measures of forestry management, i.e. logging methods, choice of logging areas and construction of roads in these areas. The domestic courts considered specifically whether the proposed activities constituted a denial of article 27 rights. The Committee is not in a position to conclude, on the evidence before it, that the impact of logging plans would be such as to amount to a denial of the authors’ rights under article 27 or that the finding of the Court of Appeal affirmed by the Supreme Court, misinterpreted and/or misapplied article 27 of the Covenant in the light of the facts before it. ¶10.6. As far as future logging activities are concerned, the Committee observes that on the basis of the information available to it, the State party’s forestry authorities have approved logging on a scale which, while resulting in additional work and extra expenses for the authors and other reindeer herdsmen, does not appear to threaten the survival of reindeer husbandry. That such husbandry is an activity of low economic profitability is not, on the basis of the information available, a result of the encouragement of other economic activities by the State party in the area in question, but of other, external, economic factors.

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¶10.7. The Committee considers that if logging plans were to be approved on a scale larger than that already agreed to for future years in the area in question or if it could be shown that the effects of logging already planned were more serious than can be foreseen at present, then it may have to be considered whether it would constitute a violation of the authors’ right to enjoy their own culture within the meaning of article 27. The Committee is aware, on the basis of earlier communications, that other large scale exploitations touching upon the natural environment, such as quarrying, are being planned and implemented in the area where the Sami people live. Even though in the present communication the Committee has reached the conclusion that the facts of the case do not reveal a violation of the rights of the authors, the Committee deems it important to point out that the State party must bear in mind when taking steps affecting the rights under article 27, that though different activities in themselves may not constitute a violation of this article, such activities, taken together, may erode the rights of Sami people to enjoy their own culture. ¶11. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee do not reveal a breach of article 27 of the Covenant.

Thus the HRC found no breach on the facts, but warned of the potential for erosion of cultural rights. A similar decision was reached in Jouni Länsman et al v Finland (1023/01). [24.32]

ÄÄRELÄ and NÄKKÄLÄJÄRVI v FINLAND (779/97)

The facts in this case are similar to those in the three Länsman cases. The HRC was required to determine whether certain logging operations would have such a detrimental impact on the authors’ reindeer-herding activities as to breach article 27. The HRC found in favour of the State Party, as in the earlier Finnish cases: ¶7.5. Turning to the claim of a violation of article 27 in that logging was permitted in the Kariselkä area, the Committee notes that it is undisputed that the authors are members of a minority culture and that reindeer husbandry is an essential element of their culture. The Committee’s approach in the past has been to inquire whether interference by the State party in that husbandry is so substantial that it has failed to properly protect the authors’ right to enjoy their culture. The question therefore before the Committee is whether the logging of the 92 hectares of the Kariselkä area rises to such a threshold. ¶7.6. The Committee notes that the authors, and other key stakeholder groups, were consulted in the evolution of the logging plans drawn up by the Forestry Service, and that the plans were partially altered in response to criticisms from those quarters. The District Court’s evaluation of the partly conflicting expert evidence, coupled with an on-site inspection, determined that the Kariselkä area was necessary for the authors to enjoy their cultural rights under article 27 of the Covenant. The appellate court finding took a different view of the evidence, finding also from the point of view of article 27, that the proposed logging would partially contribute to the long-term sustainability of reindeer husbandry by allowing regeneration of ground lichen in particular, and moreover that the area in question was of secondary importance to husbandry in the overall context of the Collective’s lands. The Committee, basing itself on the submissions before it from both the authors and the State party, considers that it does not have sufficient information before it in order to be able to draw independent conclusions on the factual importance of the area to husbandry and the

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long-term impacts on the sustainability of husbandry, and the consequences under article 27 of the Covenant. Therefore, the Committee is unable to conclude that the logging of 92 hectares, in these circumstances, amounts to a failure on the part of the State party to properly protect the authors’ right to enjoy Sami culture, in violation of article 27 of the Covenant.

[24.33] Conclusions regarding proportionality depend on findings and interpretations of facts, rather than strict application of the law. The HRC, which examines evidence in writing, is not in a good position to make independent findings of fact when presented with conflicting evidence and conflicting interpretations of facts. Indeed, the HRC generally upholds the factual findings of local courts. It rarely acts as a ‘fourth instance court’ in the absence of glaring errors,39 so it is not surprising that it ultimately upheld the final decision of the Finnish courts in Äärelä. Similarly, in the Länsman cases, the HRC was unable to find on the facts that the proposed measures impacted so severely on cultural activities as to breach article 27. [24.34] Similarly, in Howard v Canada (879/99), the HRC was confronted with very different arguments from the author, an indigenous man, and the State Party regarding the extent of his actual fishing rights. In those circumstances it could not find a breach of article 27: ¶12.11. The Committee considers that it is not in a position to draw independent conclusions on the factual circumstances in which the author can exercise his right to fish and their consequences for his enjoyment of the right to his own culture. While the Committee understands the author’s concerns, especially bearing in mind the relatively small size of the reserves in question and the limitations imposed on fishing outside the reserves, . . . the Committee is of the opinion that the information before it is not sufficient to justify the finding of a violation of article 27 of the Covenant.

[24.35] In all of the above-mentioned Finnish article 27 cases, the HRC was clearly influenced by the fact that minority representatives ‘effectively participated . . . in [the impugned] decisions which affect[ed] them’.40 In contrast, there was no evidence of similar participation by the Lubicon Lake Band, which challenged the Albertan government’s decision to permit oil and gas exploration in its homelands, in Ominayak v Canada (167/84). Notably, the HRC found in that case that the impugned developments breached article 27 [24.27]. Thus, adherence to appropriate consultative processes in decision-making is a good indicator of the article 27 compatibility of a subsequent decision that affects minority rights. The HRC’s emphasis on the process of reaching a decision, as opposed to the substantive issue of the cultural impact of a decision, may be attributed to its being easier objectively to assess the appropriateness of processes rather than that of contested consequences. Of course, consultation will not save blatantly disproportionate 39

See [1.53] and [14.63]. See General Comment 23, para 7 [24.22]. Cf Marshall v Canada (205/86) [22.16]. See also Concluding Observations on Colombia (2004) UN doc CCPR/CO/80/COL, para 20; Suriname (2004) UN doc CCPR/CO/80/SUR, para 21; Thailand (2005) UN doc CCPR/CO/84/THA, para 24; Australia (2009) UN doc CCPR/C/AUS/CO/5, para 13; Russian Federation (2009) UN doc CCPR/C/RUS/ CO/6, para 29. 40

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measures from violating article 27. However, such ‘blatancy’ will rarely arise, given that the aggrieved author and the State will normally present differing interpretations of a factual situation. [24.36] In Concluding Observations on Chile, the HRC stated:41 ¶22. . . . the Committee is concerned by hydroelectric and other developments that might affect the way of life and the rights of persons belonging to the Mapuche and other indigenous communities. Relocation and compensation may be appropriate in order to comply with article 27 of the Covenant. Therefore: When planning actions that affect members of indigenous communities, the State party must pay primary attention to the sustainability of the indigenous culture and way of life and to the participation of members of indigenous communities in decisions that affect them. Regarding Chile again, but later in 2007, the HRC remained ‘dismayed to learn that “ancestral lands” are still threatened by forestry expansion and megaprojects in infrastructure and energy’.42

[24.37] The following case manifested a rare finding of violation under article 27. POMA POMA v PERU (1457/06) The author claimed that the State government’s policy, dating back to the 1980s, of drilling wells on native wetlands deprived the local farms belonging to herself and other indigenous peoples of water. She claimed that this environmental disaster breached her rights under article 27, as it affected her family’s capacity to raise llamas in accordance with traditional customs. The HRC agreed: ¶7.3. . . . In the present case, it is undisputed that the author is a member of an ethnic minority and that raising llamas is an essential element of the culture of the Aymara community, since it is a form of subsistence and an ancestral tradition handed down from parent to child. The author herself is engaged in this activity. ¶7.4. The Committee recognizes that a State may legitimately take steps to promote its economic development. Nevertheless, it recalls that economic development may not undermine the rights protected by article 27. Thus the leeway the State has in this area should be commensurate with the obligations it must assume under article 27. The Committee also points out that measures whose impact amounts to a denial of the right of a community to enjoy its own culture are incompatible with article 27, whereas measures with only a limited impact on the way of life and livelihood of persons belonging to that community would not necessarily amount to a denial of the rights under article 27. ¶7.5. In the present case, the question is whether the consequences of the water diversion authorized by the State party as far as llama-raising is concerned are such as to have a substantive negative impact on the author’s enjoyment of her right to enjoy the cultural life of the community to which she belongs. In this connection the Committee takes note of the author’s allegations that thousands of head of livestock died because of the degradation 41 42

(1999) UN doc CCPR/C/79/Add.104. Concluding Observations on Chile (2007) UN doc CCPR/C/CHL/CO/5, para 19.

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of 10,000 hectares of Aymara pasture land—degradation caused as a direct result of the implementation of the Special Tacna Project during the 1990s—and that it has ruined her way of life and the economy of the community, forcing its members to abandon their land and their traditional economic activity. The Committee observes that those statements have not been challenged by the State party, which has done no more than justify the alleged legality of the construction of the Special Tacna Project wells. ¶7.6. In the Committee’s view, the admissibility of measures which substantially compromise or interfere with the culturally significant economic activities of a minority or indigenous community depends on whether the members of the community in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy. The Committee considers that participation in the decision-making process must be effective, which requires not mere consultation but the free, prior and informed consent of the members of the community. In addition, the measures must respect the principle of proportionality so as not to endanger the very survival of the community and its members. ¶7.7. In the present case, the Committee observes that neither the author nor the community to which she belongs was consulted at any time by the State party concerning the construction of the wells. Moreover, the State did not require studies to be undertaken by a competent independent body in order to determine the impact that the construction of the wells would have on traditional economic activity, nor did it take measures to minimize the negative consequences and repair the harm done. The Committee also observes that the author has been unable to continue benefiting from her traditional economic activity owing to the drying out of the land and loss of her livestock. The Committee therefore considers that the State’s action has substantively compromised the way of life and culture of the author, as a member of her community. The Committee concludes that the activities carried out by the State party violate the right of the author to enjoy her own culture together with the other members of her group, in accordance with article 27 of the Covenant.

[24.38] Key differences in Poma Poma compared to the Finnish cases were the apparent extent of the damage done to cultural activities, and the fact that no consultations regarding to the relevant economic development, that is the drilling of the wells, had taken place between the government and the relevant minority peoples. Interestingly, in this case the HRC endorses a high level of necessary consultation in order for projects to comply with article 27: not only must there be consultation but, in paragraph 7.6, there must be ‘free, prior and informed consent’. This is the first time the HRC has endorsed this principle, which has previously been endorsed by the CERD Committee in its General Recommendation 23 [24.40], the Inter-American Court of Human Rights, and, more recently and perhaps more influentially, in the Declaration on the Rights of Indigenous Peoples.43 It remains to be seen whether this endorsement will fundamentally alter the HRC’s case law on article 27, which has previously focused on the need for consultation rather than consent. Certainly, the requirement of ‘free prior and informed consent’ by indigenous communities to the exploitation of their lands has been 43 See generally Melissa Castan, ‘DRIP Feed: The Slow Reconstruction of Self-determination for Indigenous Peoples’, in Sarah Joseph and Adam McBeth (eds), Research Handbook on International Human Rights Law (Edward Elgar, 2010), 492 at 501–7.

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endorsed in Concluding Observations,44 though in 2012, the HRC referred to the need for ‘prior and informed consultations’ with indigenous peoples, rather than ‘consent’, in Concluding Observations on Guatemala.45 It also remains to be seen whether the principle only applies to indigenous peoples or whether it extends to other minorities more broadly. [24.39] In Hopu and Bessert v France (549/93), the authors alleged that a hotel development on the sacred burial grounds of their ancestors breached their rights to privacy and protection of the family. The HRC majority agreed.46 The facts of the case clearly raise issues concerning minority rights. However, France has entered a reservation to article 27, so that guarantee could not be considered in the case. This communication is one of the few ‘minority rights cases’ actually to succeed before the HRC, which is ironic considering that it was not decided under article 27. Indigenous Land Rights Claims [24.40] The crucial connections between indigenous culture and land have been alluded to by CERD in its General Recommendation 23. CERD GENERAL RECOMMENDATION 23 ¶5. The Committee especially calls upon States parties to recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return these lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.

[24.41] The HRC has issued a number of Concluding Observations regarding the protection of indigenous peoples’ land rights under article 27.47 For example, regarding Sweden in 1995, the Committee stated:48 ¶18. The Committee notes that legislative provisions adopted recently by the Riksdag . . . providing for the right for everyone to fish and hunt on public lands may have adverse consequences on the traditional rights of the members of the Sami people. . . . ¶26. The Committee recommends that the recognised customary rights of the Sami people be fully protected in the light of article 27 of the Covenant.

Seven years later, the HRC stated with regard to Sweden:49 ¶15. The Committee is concerned at the limited extent to which the Sami Parliament can have a significant role in the decision-making process on issues affecting the traditional 44 See Concluding Observations on Panama (2008) UN doc CCPR/C/PAN/CO/3, para 21; Togo (2011) UN doc CCPR/C/TGO/CO/4, para 21. 45 (2012) UN do. CCPR/C/GTM/CO/3, para 27. 46 See [20.14]. 47 See eg Concluding Observations on Japan (1998) UN doc CCPR/C/79/Add.102, para 14. 48 Concluding Observations on Sweden (1995) UN doc CCPR/C/79/Add.58. 49 (2002) UN doc CCPR/CO/74/SWE.

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lands and economic activities of the indigenous Sami people, such as projects in the fields of hydroelectricity, mining and forestry, as well as the privatization of land . . .

Brazil’s treatment of its indigenous peoples generated this comment:50 ¶15. The Committee is particularly concerned over the existence of racial and other discrimination against black and indigenous persons. It notes that the Government has been pursuing a process of demarcation of indigenous lands in Brazil as a means of addressing the rights of the indigenous communities, but regrets that the process is far from completion.

The HRC has also stated, with regard to Mexico:51 ¶12. Lastly, the Committee has expressed concern about the situation of indigenous populations. Article 27 of the Constitution concerning agrarian reform is often implemented to the detriment of persons belonging to such groups. The delay in resolving problems relating to the distribution of land has weakened the confidence of these populations in both local and federal authorities. Moreover, these persons are subject to special laws, particularly in Chiapas, which could create a situation of discrimination within the meaning of article 26 of the Covenant. . . . ¶18. The Committee recommends that the Government should give consideration to more equitable land distribution within the framework of agrarian reform and that it should take into account the rights and aspirations of indigenous populations in that connection. . . . Indigenous populations should have the opportunity to participate in decision-making on matters that concern them.52

Regarding Australia, the HRC stated:53 ¶16 The Committee . . . notes with concern the high cost, complexity and strict rules of evidence applying to claims under the Native Title Act. . . .

[24.42]

JONASSEN v NORWAY (942/00)

The authors were reindeer herdsman in a particular Sami group. They claimed that certain judicial decisions regarding the demarcation of their land rights were discriminatory as they were overly influenced by an 1897 case, decided at a time of widespread disdain for Sami culture. The consequent lack of recognition of certain land rights was said to breach articles 26 and 27. The State Party defended the relevant court decisions. The HRC agreed with the State party: ¶8.3. In respect of articles 26 and 2, the Committee notes the authors’ arguments that the Supreme Court in the ‘Aursunden Case 1997’ attached importance to the Supreme Court decision in 1897, and that the latter decision was based upon discriminatory views of the Samis. However, the authors have not provided information which would call into doubt the finding of the Supreme Court in the ‘Aursunden Case 1997’ that the Supreme Court in 1897 was not biased against the Samis. It is not for the Committee to re-evaluate the 50

(1996) UN doc CCPR/C/79/Add.66. (1994) UN doc CCPR/C/79/Add.32. 52 The recommendation in para 18 is interesting when compared to the HRC’s earlier treatment of the issue of rights of participation, illustrated in the Mikmaq decision: see Marshall v Canada (205/86) (also known as Mikmaq Society v Canada), discussed at [22.16]. 53 (2009) UN doc CCPR/C/AUS/CO/5. 51

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facts that have been considered by the Supreme Court in the ‘Aursunden Case 1997’. The Committee is of the opinion that the authors have failed to substantiate this part of their claim, for the purposes of admissibility, and it is therefore inadmissible under article 2 of the Optional Protocol.

This decision shows the resolve of the HRC’s refusal to act as a court of fourth instance; it will not generally re-evaluate the decisions of domestic courts on questions of fact and municipal law [1.54]. The HRC refused to look behind the Supreme Court’s decision that an earlier 1897 decision was discriminatory against Samis, despite the submission of considerable evidence of the disparaging attitudes of the Finnish governmental organs to the Sami during the late nineteenth century. This decision does not bode well for future land-rights claims before the HRC, as such claims often involve the questioning of local court judgments on complex issues of fact, law, and local history. Consistent deferral by the HRC to such judgments may thwart the effective use of article 27 to uphold or restore important rights, indigenous land rights, that the guarantee was intended to protect. [24.43] The HRC also agreed with the State Party on the issue of exhaustion of domestic remedies [6.05]. Messrs Henkin, Scheinin, and Solari Yrigoyen dissented, and argued that the communication should have been admissible under article 27 [6.06]. RELIGION

[24.44] Article 27 expressly protects religious minorities. Matters relating to religious rights have been dealt with under the independent guarantee of freedom of religion, article 18 and the general guarantees against non-discrimination. Were a State to prescribe or enforce a State religion upon a minority, a breach of articles 18 and 27 would arise. Arguably, then, the protection of religious minorities under article 27 is subsumed by that of article 18. [24.45]

PRINCE v SOUTH AFRICA (1474/06)

The author was a Rastafarian. He claimed that the State Party’s ban on the use of cannabis breached his rights under article 18 [17.34] as well as his rights as a member of a religious minority under article 27, as cannabis use was an essential tenet of Rastafarianism. The HRC found no breach arose: ¶7.4. On the author’s claim that the failure to provide an exemption for Rastafarians violates his rights under article 27, the Committee notes that it is undisputed that the author is a member of a religious minority and that the use of cannabis is an essential part of the practice of his religion. The State party’s legislation therefore constitutes interference with the author’s right, as a member of a religious minority, to practice his own religion, in community with the other members of his group. However, the Committee recalls that not every interference can be regarded as a denial of rights within the meaning of article 27. Certain limitations on the right to practice one’s religion through the use of drugs are compatible with the exercise of the right under article 27 of the Covenant. The Committee cannot conclude that a general prohibition of possession and use of cannabis constitutes an

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unreasonable justification for the interference with the author’s rights under this article and concludes that the facts do not disclose a violation of article 27. LANGUAGE

[24.46]

GENERAL COMMENT 23

¶5.3. The right of individuals belonging to a linguistic minority to use their language among themselves, in private or in public, is distinct from other language rights protected under the Covenant. In particular, it should be distinguished from the general right to freedom of expression protected under article 19. The latter right is available to all persons, irrespective of whether they belong to minorities or not. Further, the right protected under article 27 should be distinguished from the particular right which article 14.3 (f) of the Covenant confers on accused persons to interpretation where they cannot understand or speak the language used in the courts. Article 14.3 (f) does not, in any other circumstances, confer on accused persons the right to use or speak the language of their choice in court proceedings [14.177].

[24.47]

MAVLONOV and SA’DI v UZBEKISTAN (1334/04)

The complaint concerned the denial of re-registration to a newspaper, ‘Oina’, which catered to the State’s Tajik minority, which meant that the editor lost his right to publish the paper [18.28]. The authors claimed that the denial of re-registration breached article 27. The HRC agreed: ¶8.7. [T]he Committee has noted the authors’ uncontested claim that ‘Oina’ published articles containing educational and other materials for Tajik students and young persons on events and matters of cultural interest to this readership, as well as reported on the particular difficulties facing the continued provision of education to Tajik youth in their own language, including shortages in Tajik-language textbooks, low wages for teachers and the forced opening of Uzbek-language classes in some Tajik schools. The Committee considers that in the context of article 27, education in a minority language is a fundamental part of minority culture. Finally, the Committee refers to its jurisprudence, where it has made clear that the question of whether Article 27 has been violated is whether the challenged restriction has an ‘impact [ . . . ] [so] substantial that it does effectively deny to the [complainants] the right to enjoy their cultural rights [ . . . ]’. In the circumstances of the present case, the Committee is of the opinion that the use of a minority language press as means of airing issues of significance and importance to the Tajik minority community in Uzbekistan, by both editors and readers, is an essential element of the Tajik minority’s culture. Taking into account the denial of the right to enjoy minority Tajik culture, the Committee finds a violation of article 27, read together with article 2.

Therefore, the publication of a newspaper for minorities, in particular the provision of educational material in a minority language, is protected under article 27.54 [24.48] As stressed in Mavlonov and Sa’di, education is crucial in maintaining the integrity and continuance of minority languages. In Concluding Observations on Japan, the HRC has stated:55 54 55

See also General Comment 34, para 14 [18.18]. (2008) UN doc CCPR/C/JPN/CO/5.

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¶31. The Committee is concerned that State subsidies for schools that teach in the Korean language are significantly lower than those for ordinary schools, making them heavily dependent on private donations, which are not exempted or deductible from taxes, unlike donations to private Japanese schools or international schools, and that diplomas from Korean schools do not automatically qualify students to enter university (arts. 26 and 27).

[24.49] In Concluding Observations on Sudan, the HRC has stated:56 ¶20. The Committee is concerned that there is no recognition in law of the right to use local languages in official communications or administrative or court proceedings, and that religious minorities can be adversely affected by a range of discretionary administrative actions which can include the destruction of schools and educational facilities under town planning regulations. Therefore: Emphasis should be given to the need of ethnic and religious minorities, wherever they reside in the Sudan, to pursue and develop their traditions, culture and language, as required by article 27 of the Covenant.

Regarding Poland, the HRC has stated:57 ¶20. While taking note of the draft Law on National and Ethnic Minorities and on Regional Languages, the Committee is concerned that current legislation does not allow linguistic minorities to use their own language when dealing with administrative authorities in areas where their numbers warrant (arts. 26 and 27). The State party should ensure that new legislation on minorities is in full compliance with article 27 of the Covenant, in particular regarding the rights of minorities to be recognized as such and to use their own languages.

Regarding Canada, the HRC has stated:58 ¶10. The Committee, while noting the responses provided by the State party in relation to the preservation, revitalization and promotion of Aboriginal languages and cultures, remains concerned about the reported decline of Aboriginal languages in Canada (art. 27). The State party should increase its efforts for the protection and promotion of Aboriginal languages and cultures. It should provide the Committee with statistical data or an assessment of the current situation, as well as with information on action taken in the future to implement the recommendations of the Task Force on Aboriginal Languages and on concrete results achieved.

Regarding Norway, the HRC has praised the State Party’s initiatives:59 ¶6. The Committee . . . commends the devolution of responsibility to the Sami Assembly (Sametinget) with regard to matters affecting the life and culture of members of the Sami community and notes with satisfaction that the Sami language may be used in contacts with public bodies and before the courts.

56

(1997) UN doc CCPR/C/79/Add.85. (2004) UN doc CCPR/CO/82/POL. See also Concluding Observations on Algeria (1998) UN doc CCPR/C/79/Add.95, para 15. 58 (2006) UN doc CCPR/C/CAN/CO/5. See also Concluding Observations on Costa Rica (2007) UN doc CCPR/C/CRI/CO/5, para 5. 59 (1993) UN doc CCPR/C/79/Add.27. 57

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[24.50] In Diergaardt v Namibia (760/97), the HRC majority found a violation of article 26, the non-discrimination guarantee, entailed in the Namibian government’s exclusive use of English ‘in administration, justice, education and public life’.60 However, one may also note the large number of dissents in that case, where minority HRC members strongly upheld the right of a State to adopt a single official language. One of those dissenters, Mr Lallah stated: ¶5. It is to be observed that the authors claim a violation of Article 27, in addition to Article 26. The Committee presumably found no violation of Article 27 which, inter alia, deals with the right of linguistic minorities not to be denied the right, in community with the other members of their group, to use their own language. Indeed, it would be stretching the language of Article 27 too far to suggest, as the Committee might in effect be perceived to have done, that public authorities must make it possible to use a non-official language (Afrikaans) in official business when the official language is different. In this regard it is to be observed that the Committee itself finds in paragraph 10.9 that the authors have not shown how the use of English during Court proceedings has affected their right to a fair hearing. And a fair hearing requires that a person understands what is happening in court so as to brief his or her legal representative appropriately in the conduct of his or her case.

Those sentiments, which reflect the substantial minority of six members, do not conform with the statements above regarding the Sudan and Poland. [24.51]

BALLANTYNE et al v CANADA (359, 385/89)

In this case, a Quebec provincial law prohibited the exhibition of commercial signs in a language other than French. The authors alleged, inter alia, breaches of their minority rights as English speakers in Quebec, and their article 19 rights of freedom of expression. The Quebec government argued that the measures were essential to preserve the cultural identity of French speakers in English-dominated Canada. The HRC majority nevertheless found a breach of article 19, though not article 27 [24.07]. The majority found the measures disproportionate to the aim of protecting the French language [18.39]. Mr Ndiaye, however, issued a vigorous dissent. He argued that the law constituted a permissible limitation to article 19 rights because it essentially upheld French-speaking minority rights under article 27: In the cases submitted to the Committee . . . , Quebec considered that ‘historical developments since 1763 amply bear out the need for French-speakers to seek protection of their language and culture’. Thus, the goal pursued by the Charter of the French Language, as amended by Bill 178, is the very same as that aimed at by article 27 of the Covenant, to which effect must be given, if necessary by restricting freedom of expression on the basis of article 19, paragraph 3. . . . The limitations embodied in article 19, paragraph 3(a) and (b), are applicable to the situation of the French-speaking minority in Canada. And as this country has maintained, albeit with too narrow a conception of freedom of expression, ‘the Charter of the French Language, as amended . . . , may provide Quebec with a means of preserving its specific 60

At para 10.10.

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The ICCPR

linguistic character and give French-speakers a feeling of linguistic security’. This is reasonable and is geared to ends compatible with the Covenant, namely, article 27. Unfortunately, the Human Rights Committee has not endorsed the State party’s view and has not agreed to integrate the requirements of implementation of article 27 in its decision. For the Committee, there is no linguistic problem in Canada or, if it does exist, it is not so important as to merit the treatment which the authorities of that country have chosen to extend to it. I can only disassociate myself from its conclusions.

RAIHMAN v LATVIA (1621/07) This case concerned a Latvian law requiring that the Latvian spelling of his name, which was of Russian Jewish origin, be used for official purposes. The majority found that the law breached article 17 [16.14].61 Messrs Rivas Posada and Thelin disagreed with that finding, and were the only HRC members to consider whether the measure breached article 27. ¶8.6 [minority opinion].62 Finally, with regard to article 27, the Committee first notes that it is undisputed that the author is a member of the Jewish, and Russian-speaking minorities in Latvia. The Committee, referring to its earlier jurisprudence, recalls. . . . In the circumstances of the case, the Committee considers that the imposition of a declinable termination on his name and surname did not adversely affect his right, in community with the other members of the Jewish and Russian speaking minorities of Latvia, to enjoy his own culture, to profess and practice the Jewish religion, or to use the Russian language. In such circumstances, the Committee concludes that the restriction involved does not amount to a violation of article 27 of the Covenant.

[24.52] In Concluding Observations on Israel, the HRC has stated:63 ¶23. While noting the State party’s efforts to facilitate access to public administration services for its Arab minority, the Committee expresses concern at the continued limited use of the Arabic language by the State party’s authorities, including the absence of translations of leading cases of its Supreme Court into Arabic. It is also concerned about the process of transliteration of road signs from Hebrew into Arabic, as well as the frequent lack of road signs in Arabic. Moreover, the Committee is concerned at severe limitations on the right to cultural contact with other Arab communities owing to the ban on travel to ‘enemy States’, the majority of which are Arab States (arts. 26 and 27). The State party should continue its efforts to make its public administration services fully accessible to all linguistic minorities and to ensure that full accessibility in all official languages, including Arabic, is provided. The State party should also consider translating cases of its Supreme Court into Arabic. It should in addition ensure that all road signs are available in Arabic and should reconsider its transliteration process from Hebrew into Arabic. Furthermore, the State party should increase its efforts to guarantee the right of minorities to enjoy their own culture, including by travelling abroad.

61

See also Concluding Observations on Latvia (2003) UN doc CCPR/CO/79/LVA, para 20. Even though this paragraph is written as if it is the decision of the HRC, it is simply the dissenters’ view of what the decision should have been. 63 (2010) UN doc CCPR/C/ISR/CO/3. 62

Minority Rights

865

Positive Measures of Protection [24.53]

GENERAL COMMENT 23

¶6.1. Although article 27 is expressed in negative terms, that article, nevertheless, does recognize the existence of a ‘right’ and requires that it shall not be denied. Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party. ¶6.2. Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group. In this connection, it has to be observed that such positive measures must respect the provisions of articles 2(1) and 26 of the Covenant both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population. However, as long as those measures are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under article 27, they may constitute a legitimate differentiation under the Covenant, provided that they are based on reasonable and objective criteria.

Furthermore, paragraph 7 of General Comment 23 confirms that ‘positive legal measures of protection’ are needed to preserve traditional activities, such as hunting and fishing [24.22]. [24.54] States are thus obliged to take such positive measures as are necessary in order to make certain that any disadvantages arising out of minority status are remedied, and that assimilationist pressures are counteracted.64 States have a greater duty than that of guaranteeing tolerance or non-interference with expression of minority rights; ‘specific action’ must be embraced to address the practical burdens applicable to minority groups. For example, the HRC has recommended that positive steps be taken with regard to protection of the minority rights of Native Americans in the United States:65 ¶25. The Committee is concerned that aboriginal rights of Native Americans may, in law, be extinguished by Congress. It is also concerned by the high incidence of poverty, sickness and alcoholism among Native Americans, notwithstanding some improvements achieved with the Self-Governance Demonstration Project. . . . ¶37. The Committee recommends that steps be taken to ensure that previously recognised aboriginal Native American rights cannot be extinguished. The Committee urges the

64 See Thornberry, ‘The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’, 24–5. 65 Concluding Observations on the United States (1995) UN doc CCPR/C/79/Add.50.

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government to ensure that there is a full judicial review in respect of determinations of federal recognition of tribes. The Self-Governance Demonstration Project and similar programmes should be strengthened to continue to fight the high incidence of poverty, sickness and alcoholism among Native Americans. ¶38. The Committee expresses the hope that, when determining whether currently permitted affirmative action programmes for minorities and women should be withdrawn, the obligation to provide Covenant’s rights in fact as well as in law be borne in mind.

Conclusion [24.55] The case law and General Comment provided by the HRC on article 27 indicate a body of jurisprudence that is supportive of protecting minority identity and valuing diversity as part of the essential ‘fabric’ of communities and of States. The HRC has made it clear that there are positive obligations on States to secure and strengthen the rights of minorities as fundamental human rights. A number of cases have involved complaints relating to the preservation of culture, particularly that of indigenous groups. Whilst the HRC has accepted that ‘culture’ has a variety of manifestations which are theoretically worthy of protection, it has demonstrated a reluctance in decisions such as the Länsman cases and Äärelä to find violations of article 27 on the facts. Further, the Jonassen case throws doubt on the ability of the HRC, at least under the Optional Protocol, to provide an effective avenue for remedying historical injustices against minorities. However, more recently in Poma Poma the HRC endorsed a requirement for meaningful consultation in order for State authorized development projects to comply with article 27: not only must there be consultation but, there must be ‘free, prior and informed consent’, a standard seen in other human rights instruments, but not explicit in the Covenant itself. These decisions demonstrate that the HRC will balance article 27 rights against other countervailing interests, such as economic development asserted by a State. It is to be hoped that the HRC does not allow this ‘balance’ to be tipped too far in favour of economic interests at the expense of minority and indigenous peoples’ continued existence.

25 The Right to a Remedy—Article 2(3) • Justiciability of Article 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Duty to Investigate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Duty to Enforce Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Amnesties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • International Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[25.07] [25.11] [25.16] [25.24] [25.28] [25.30]

ARTICLE 2(3) Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.

[25.01] The right to a remedy for victims of violations of the substantive International Covenant on Civil and Political Rights (ICCPR) rights in Part III of the Covenant is contained in Article 2(3), one of the overarching supporting guarantees in Part II [1.121]. It is a key component of the ICCPR. While a finding of violation of one of the substantive rights in Part III is an important measure of vindication for a victim, article 2(3) obliges States parties to ‘fix’ the situation to the extent possible by providing the victim, or the victim’s survivors, with a remedy. [25.02]

GENERAL COMMENT 31

In this General Comment, the Human Rights Committee (HRC) outlined the institutions through which remedies can be provided to victims of ICCPR violations: ¶15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights. Such remedies should be appropriately adapted so as to take account of the special vulnerability of certain categories of person, including in particular children. The Committee attaches importance to States Parties’ establishing appropriate judicial and administrative mechanisms for addressing claims of rights violations under domestic law. The Committee notes that the enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary in many different ways, including direct applicability of the Covenant, application of comparable constitutional or other

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The ICCPR

provisions of law, or the interpretive effect of the Covenant in the application of national law. Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. National human rights institutions, endowed with appropriate powers, can contribute to this end. A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy.

[25.03] The HRC also outlined the many forms remedies may take under article 2(3): ¶16. Article 2, paragraph 3, requires that States Parties make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged. In addition to the explicit reparation required by articles 9, paragraph 5 [11.104], and 14, paragraph 6 [14.204], the Committee considers that the Covenant generally entails appropriate compensation. The Committee notes that, where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations. . . . 1 ¶19. The Committee further takes the view that the right to an effective remedy may in certain circumstances require States Parties to provide for and implement provisional or interim measures to avoid continuing violations and to endeavour to repair at the earliest possible opportunity any harm that may have been caused by such violations.

[25.04] In many instances, the obligation to provide a remedy necessitates a State taking measures extending beyond the personal circumstances of a specific victim, as explained in the General Comment. ¶17. In general, the purposes of the Covenant would be defeated without an obligation integral to article 2 to take measures to prevent a recurrence of a violation of the Covenant. Accordingly, it has been a frequent practice of the Committee in cases under the Optional Protocol to include in its Views the need for measures, beyond a victim-specific remedy, to be taken to avoid recurrence of the type of violation in question. Such measures may require changes in the State Party’s laws or practices.

[25.05] In Concluding Observations on Guatemala, the HRC has stated:2 ¶5. The Committee is concerned at the apparently limited level of awareness of the provisions of the Covenant among the population, legal officials and lawyers, as a result of which there are few cases in which the provisions of the Covenant have been invoked or applied by justice officials (art. 2).

[25.06] In Concluding Observations on The Former Yugoslav Republic of Macedonia, the HRC commented on the need to combat corruption in order to properly implement article 2, including article 2(3).3 1

See also Concluding Observations on Guatemala (2012) CCPR/C/GTM/CO/3, para 7. (2012) UN doc CCPR/C/GTM/CO/3, para 5. (2008) UN doc CCPR/C/MKD/CO/2, para 8. See also Concluding Observations on Chad (2009) UN doc CCPR/C/TCD/CO/1, para 11; Turkmenistan (2012) UN doc CCPR/C/TKM/CO/1/Add.1, para 13. 2 3

The Right to a Remedy

869

Justiciability of Article 2(3) [25.07] The HRC has long held that the right to a remedy is not free-standing right. For example, the complaint in SE v Argentina (275/88) concerned the disappearance of relatives at the hands of the State. However, those disappearances occurred before the entry into force of the Covenant and Optional Protocol for Argentina in 1986 [2.11]. The authors were unable to claim a right to a remedy in respect of the disappearances, as the disappearances themselves did not violate the Covenant, occurring as they did prior to its entry into force. Article 2(3) could not be ‘invoked in isolation’.4 Therefore, according to SE v Argentina, article 2(3) did not provide an autonomous right.5 [25.08]

KAZANTZIS v CYPRUS (972/01)

The HRC’s stance on the justiciability of article 2(3) seemed to loosen in this case. The case itself concerned alleged violations of articles 17, 25, and 26, which were found to be inadmissible. Kazantzis had also claimed a violation of article 2(3) on the basis that no remedy to his grievances existed in Cyprus. The HRC found that claim inadmissible too, but stated the following: ¶6.6. The author has invoked article 2 of the Covenant together with articles 17, 25(c) and 26. This raises the question as to whether the fact that the author had no possibility to challenge his non-appointment as a judge amounted to a violation of the right to an effective remedy as provided for by article 2, paragraphs 3 (a) and (b), of the Covenant. Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights States parties must ensure that individuals also have accessible, effective and enforceable remedies to vindicate those rights. The Committee recalls that article 2 can only be invoked by individuals in conjunction with other articles of the Covenant, and observes that article 2, paragraph 3(a), stipulates that each State party undertakes ‘to ensure that any person whose rights or freedoms are violated shall have an effective remedy’. A literal reading of this provision seems to require that an actual breach of one of the guarantees of the Covenant be formally established as a necessary prerequisite to obtain remedies such as reparation or rehabilitation. However, article 2, paragraph 3(b), obliges States parties to ensure determination of the right to such remedy by a competent judicial, administrative or legislative authority, a guarantee which would be void if it were not available where a violation had not yet been established. While a State party cannot be reasonably required, on the basis of article 2, paragraph 3(b), to make such procedures available no matter how unmeritorious such claims may be, article 2, paragraph 3, provides protection to alleged victims if their claims are sufficiently well-founded to be arguable under the Covenant. Considering that the author of the present communication has failed to substantiate, for purposes of admissibility, his claims under articles 17, 25 and 26, his allegation of a violation of article 2 of the Covenant is also inadmissible under article 2 of the Optional Protocol.

Therefore, the case law evolved significantly in this case. In SE v Argentina, it seemed that article 2(3) is only violated if an actual violation of a substantive 4 5

At para 5.3 [2.11]. See also Inostroza et al v Chile (717/96) and Vargas v Chile (718/96).

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ICCPR right was established. In Kazantzis, the HRC says that remedies must be provided to test ICCPR claims domestically for ‘claims that are sufficiently well-founded to be arguable under the Covenant’. No violation was found here as the claims were not substantiated enough to be admissible under the ICCPR and therefore were not sufficiently well-founded for the purposes of article 2(3). Similar reasoning and outcomes arose in inadmissibility decisions in Picq v France (1632/07), Kibale v Canada (1562/07), and Smídek v Czech Republic (1062/02). [25.09]

FAURE v AUSTRALIA (1036/01)

This case concerned an alleged breach of article 8 [10.06]. Ultimately the article 8 claim was not sustained after consideration on the merits. The claim was, however, strong enough to be admissible. The author had also claimed a breach of article 2, as there was no domestic avenue of challenge available at all to the legislation (underpinning a programme called ‘Work for the Dole’) which had given rise to the article 8 claim. The HRC upheld her article 2 complaint: ¶7.3 Applying this reasoning [from Kazantzis] to the present claim that the State party did not provide an effective remedy for the alleged breach of article 8 of the Covenant, the Committee observes, with reference to its admissibility considerations identified above in the context of exhaustion of domestic remedies, that, in the State party’s legal system, it was and remains impossible for a person such as the author to challenge the substantive elements of the Work for Dole program, that is, the obligation imposed by law on persons such as the author, who satisfy the pre-conditions for access to the program, to perform labour in exchange for receipt of unemployment benefits. The Committee recalls that the State party’s proposed remedies address the question of whether or not an individual in fact satisfies the requirements for access to the program, but no remedy is available to challenge the substantive scheme for those who are by law subject to it. ¶7.4. As the Committee’s consideration . . . on the merits of the substantive article 8 shows, the question presented undoubtedly raises an issue, in the language of the Committee’s decision in Kazantzis, that was ‘sufficiently well-founded to be arguable under the Covenant’. It follows, therefore, that the absence of a remedy available to test an arguable claim under article 8 of the Covenant such as the present amounts to a violation of article 2, paragraph 3, read together with article 8, of the Covenant.

The complaint concerned the operation of Australia’s ‘Work for the Dole’ programme. There was no domestic avenue in which to challenge the human rights compliance of that programme. Therefore, the HRC followed Kazantzis v Cyprus in finding that States Parties must not only provide remedies for violations of the ICCPR under article 2(3), but must also provide forums in which one can pursue arguable if unsuccessful claims of violations of the ICCPR. Such forums do not have to be provided for utterly unmeritorious claims, but people should have an opportunity to seek a remedy for an arguable case. The finding regarding article 2(3) strengthened the procedural obligations of States under the ICCPR. Procedural avenues of redress must be provided, even in the absence of a substantive violation of the ICCPR. This significantly expands the scope of article 2(3) from the days of SE v Argentina.

The Right to a Remedy

871

[25.10] The Faure finding has repercussions for States without entrenched constitutional bills of rights, where it can be impossible to challenge the validity of primary legislation on human rights grounds. This implication is enhanced in Concluding Observations on New Zealand, the HRC stated:6 ¶7. The Committee reiterates its concern that the Bill of Rights Act 1990 (BORA) does not reflect all Covenant rights. It also remains concerned that the Bill of Rights does not take precedence over ordinary law, despite the 2002 recommendation of the Committee in this regard. Furthermore, it remains concerned that laws adversely affecting the protection of human rights have been enacted in the State party, notwithstanding that they have been acknowledged by the Attorney-General as being inconsistent with the BORA (art. 2). The State party should enact legislation giving full effect to all Covenant rights and provide victims with access to effective remedies within the domestic legal system. It should also strengthen the current mechanisms to ensure compatibility of domestic law with the Covenant.

Furthermore, the HRC has suggested to the Dominican Republic that ‘the Covenant should take precedence over domestic law’.7

Duty to Investigate [25.11] In order to properly provide for a right to a remedy, a State must take various positive steps in response to credible allegations of ICCPR violations. For example, a State should investigate claims of human rights violating behaviour with due diligence.8 [25.12]

BENITEZ v PARAGUAY (1829/08)

The following violation of article 2(3) was found in a case involving police brutality in breach of article 7 [9.47]: ¶7.5. With regard to the author’s complaint concerning the investigation of the events, the Committee recalls [that] complaints alleging a violation of article 7 must be investigated promptly, thoroughly and impartially by the competent authorities and appropriate action must be taken against those found guilty. In the present case, the Committee notes that the author filed the complaint on 10 June 2003 and that it was more than a year later—12 July 2004—that the prosecutor indicted two suspects. On 18 March 2005, the prosecutor requested a temporary stay of proceedings in order to allow further evidence to be gathered. However, the criminal court refused to allow such evidence to be gathered and dismissed the case. In those circumstances, and in the absence of any justification by the State party as to why the investigation into the case was interrupted, the Committee finds that the author did not have access to an effective remedy and that the facts before it amount to a violation of article 2, paragraph 3, read in conjunction with article 7 of the Covenant. 6

(2010) UN doc CCPR/C/NZL/CO/5, Compare, however, [1.26]. See Concluding Observations on the Dominican Republic (2012) UN doc CCPR/C/DOM/CO/5, para 5. 8 See also [8.16]ff and [9.161]ff. 7

872 [25.13]

The ICCPR POMA POMA v PERU (1457/06)

This case concerned a complaint under article 27, which was ultimately upheld [24.37]. Part of the complaint related to local criminal proceedings brought against a company, EPS Tacna, for criminal environmental damage after the author had appealed to the Senior Prosecutor to do so. The case was discontinued a year later: ¶2.10. Approximately one year after the complaint had been filed, the judge of Criminal Court No. 1 recused himself from the case because he was married to the company’s legal adviser, and the case was referred to Tacna Criminal Court No. 2. On 13 July 2004, the court declared that the trial would not open because of failure to fulfil a procedural requirement—the submission of a report from the competent State authority, INRENA. This legal requirement provides that before the opening of a trial the competent authority must submit a report on the allegation of an environmental offence. The author maintains that although the prosecutor insisted that the preliminary investigation should go ahead, claiming that the case file contained a report from INRENA, the judge shelved the case.

The author made the following complaint regarding the right to a remedy in respect of acts which harmed her minority rights under article 27: ¶3.2. The author also claims that she was deprived of the right to an effective remedy, in violation of article 2, paragraph 3 (a), of the Covenant. By requiring the submission of an official report before the judge can open proceedings, the State becomes both judge and party and expresses a view on whether or not an offence has been committed before the court itself does so. She also complains that the Criminal Code contains no provision for the offence of dispossession of waters used by indigenous people for their traditional activities, and states that she has exhausted domestic remedies.

The HRC found a breach of article 2(3)(a) in conjunction with article 27: ¶7.8. With regard to the author’s allegations relating to article 2, paragraph 3 (a), the Committee takes note of the case referred by the author to the Tacna Prosecutor No. 1 and the Senior Prosecutor. It observes that, although the author filed a complaint against the EPS Tacna company, the competent criminal court did not allow the case to open because of a procedural error, namely the alleged lack of a report that the authorities themselves were supposed to submit. In the particular circumstances, the Committee considers that the State party has denied the author the right to an effective remedy for the violation of her rights recognized in the Covenant, as provided for in article 2, paragraph 3 (a), read in conjunction with article 27.

The collapse of the criminal proceedings against the company, which was the fault of the State, represented a violation of the right to a remedy.9 [25.14] In numerous cases involving forced disappearances, breaches of article 2(3) have been found due to the failure by the relevant States to properly investigate those disappearances. Indeed, these failures are largely the reason why the fates of the disappeared often remain unknown.10 9

See also the findings in Novaković v Serbia (1556/07), para 7.3 [8.45]. See also [8.27]ff.

10

The Right to a Remedy

873

[25.15] Regarding Colombia, the HRC has stated:

11

¶11. The Committee is concerned that the extradition, by order of the executive branch, of paramilitary leaders to the United States of America to answer charges of drug trafficking has produced a situation that hampers investigations into their responsibility for gross human rights violations. Extradition in those conditions therefore hinders victims’ exercise of their rights to justice, the truth and redress and contravenes the State’s responsibility to investigate, try and punish human rights violations (arts. 2, 6 and 7). The State party should ensure that extraditions do not hamper the efforts required to investigate, try and punish gross human rights violations. The State party should take steps to ensure that extradited persons do not shun their responsibility with regard to investigations in Colombia into gross human rights violations. The State party should ensure that future extraditions take place within a legal framework that recognizes the obligations imposed by the Covenant.

Duty to Enforce Remedies [25.16]

GENERAL COMMENT 31

¶18. Where the investigations referred to in paragraph 15 reveal violations of certain Covenant rights, States Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (article 7), summary and arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity for these violations, a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations. When committed as part of a widespread or systematic attack on a civilian population, these violations of the Covenant are crimes against humanity (see Rome Statute of the International Criminal Court, article 7). . . .

[25.17]

KIBAYA v DEMOCRATIC REPUBLIC OF CONGO (1483/06)

The author’s late father was allegedly arrested and tortured by military personnel. The commander of the relevant military unit was convicted by a military court and sentenced to 12 months’ imprisonment. However, the commander never served that sentence. The author argued that the failure by the State to enforce the sentence breached his father’s rights under article 2(3) in conjunction with article 7. The HRC agreed: ¶6.2. With regard to the allegation of a violation of article 7 and of article 2, paragraph 3 (c), of the Covenant, the Committee notes the author’s allegation that his father was detained and whipped by Commander Kifwa Mukuna’s bodyguards, on the Commander’s orders, for reporting the forcible removal of his weapon. The Committee also notes the author’s allegation that the public prosecution service failed to enforce the relatively light sentence 11

(2010) UN doc CCPR/C/COL/CO/6.

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handed down by the military court, since the convicted persons never served their prison terms. In the absence of any relevant information from the State party which might contradict the author’s allegations, the Committee considers that the facts laid before it reveal a violation of article 7, together with article 2, of the Covenant.

The failure by the State’s court to enforce its own sentence breached its obligation under article 2(3)(c) to enforce remedies. It is uncertain whether the light sentence itself would have breached the right to an effective remedy if it had in fact been carried out. [25.18]

SECHREMELIS et al v GREECE (1507/06)

The authors had won a judgment in local courts against the state of Germany in respect of damages caused during the Second World War. The Greek government, however, failed to enforce the judgment, or else it would be in breach of the international law of sovereign immunity [1.93]. The authors claimed a violation of article 2(3) in conjunction with article 14(1). The HRC found, ultimately, no violation: ¶10.4. The Committee considers that the protection guaranteed by article 2, paragraph 3 and article 14, paragraph 1 of the Covenant would not be complete if it did not extend to the enforcement of decisions adopted by courts in full respect of the conditions set up in article 14. In the instant case, the Committee notes that article 923 of the Code of Civil Procedure, by requiring the prior consent of the Minister of Justice for the Greek authorities to enforce Decision 137/1997, imposes a limitation to the rights to a fair hearing and to effective remedy. The question is whether this limitation is justified. ¶10.5. The Committee notes the State party’s reference to relevant international law on State immunity as well as the Vienna Convention of 1969 on the Law of Treaties. It also notes the State party’s statement that the limitation does not impair the very essence of the authors’ right to an effective judicial protection; that it cannot be ruled out that the national court’s decision may be enforced at a later date, for example if the foreign State enjoying immunity from execution gave its consent to the taking of measures of constraint by the Greek authorities, thereby voluntarily waiving the application of the international provisions in its favour; and that this is a possibility expressly provided for by the relevant provisions of international law. The Committee also notes the authors’ contention that Germany is not covered by immunity from legal proceedings. In the particular circumstances of the present case, without prejudice to future developments of international law as well as those developments that may have occurred since the massacre perpetrated on 10 June 1944, the Committee considers that the refusal of the Minister of Justice to give consent to enforcement measures, based on article 923 of the Code of Civil Procedure, does not constitute a breach of article 2, paragraph 3 read together with article 14, paragraph 1 of the Covenant.

[25.19] Messrs Lallah, Bouzid, and Salvioli dissented. They suggested that the majority reasoning negated the ICCPR rights at issued: ¶8. The term limitation is somewhat of a euphemism in the context of the obligations assumed by the State party under the mandatory provisions of Articles 14 and 2 of the Covenant in relation to individual victims. Negation might more correctly describe the

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effect of the power exercised by the State party under article 923 of its Code of Civil Procedure, in its present form, since its effect is to transform those obligations of the State party under the Covenant into a mere exercise of discretionary good will over a timeless period, not anymore by the State party which had assumed obligations under the Covenant, but by a foreign state to which the obligations of these two provisions do not apply in the communication directed by the authors against the State party under the Optional Protocol. ¶9. Nor can a remedy required under the Covenant be considered to be effective or prompt when it is suggested that the victims may possibly enforce their remedy elsewhere or at some indeterminate time in the future by the unilateral and discretionary good will of a foreign State. A remedy is not a real remedy when it depends on the unilateral discretion of a third party. . . .

The minority went on to reconcile the rules of state immunity and Greece’s obligations under the ICCPR: ¶17. There is no limitation or other derogation, either express or implied, detracting from the efficacy of those provisions for the purpose of ensuring a foreign State’s immunity. Were it otherwise, State immunity would, in substance and effect, virtually become State impunity, exercisable according to the will of another State. The question of any tension between State immunity and articles 2 (3) (c) and 14 (1) of the Covenant simply does not really arise. The reason is simple enough: there is nothing in international law on the immunity of a foreign State preventing a State Party to the Covenant and the Optional Protocol from itself satisfying the judgment of its judicial authorities and seeking compensatory reparation from the foreign State, in circumstances where the foreign State resists enforcement. ¶18. The exercise of power under Article 923 of the Code of Civil Procedure, in its inadequate present form, by the State party in the discharge of its obligations under international law towards another State cannot be at the expense of the victims of violations of their rights under a different set of obligations assumed by the State party towards human beings under its own protection and jurisdiction. The latter obligations are as much part of public interest as are its other international obligations. Article 923 of the Code of Civil Procedure contains no countervailing provisions requiring the State party itself to satisfy the remedy decided upon by its judicial authorities and to seek reparation from the relevant foreign State.

[25.20]

LMR v ARGENTINA (1608/07)

The author was wrongly prevented from having an abortion by an erroneous lower court order. By the time that order was belatedly overturned, she could not find a doctor prepared to perform the abortion legally, given the late stage of her pregnancy. The HRC found the following violation: ¶9.4. The Committee takes note of the author’s allegations to the effect that, because it lacked the mechanisms that would have enabled L.M.R. to undergo a termination of pregnancy, the State party is responsible by omission for the violation of article 2 of the Covenant. The Committee observes that the judicial remedies sought at the domestic level to guarantee access to a termination of pregnancy were resolved favourably for L.M.R. by the Supreme Court ruling. However, to achieve this result, the author had to appear before

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three separate courts, during which period the pregnancy was prolonged by several weeks, with attendant consequences for L.M.R.’s health that ultimately led the author to resort to illegal abortion. For these reasons, the Committee considers that the author did not have access to an effective remedy and the facts described constitute a violation of article 2, paragraph 3 in relation to articles 3, 7 and 17 of the Covenant.

[25.21]

MARTÍNEZ et al v URUGUAY (1607/07)

The authors had suffered human rights violations at the hands of Uruguay’s military government. Many years later they were compensated for the harm they suffered. They claimed before the HRC that the way in which the compensation was determined breached Uruguayan law. The HRC found the claim to be inadmissible: ¶6.3. The issue before the Committee is whether the State party violated the authors’ rights under the Covenant when the Supreme Court of Justice set the amount of compensation to be paid to them in respect of acts of arbitrary detention, torture and disqualification for which the domestic courts had sentenced the State of Uruguay. The Committee observes that the Supreme Court of Justice, when it set the amount of compensation, deemed that the Court of Appeal had rightly interpreted Legislative Decree No. 14,500 when it fixed the compensation based on the amount estimated on the date of the appellate decision, and not the date of the complaint, as submitted by the authors. The Supreme Court considered that this approach already tacitly took account of any devaluation since the date of the complaint. ¶6.4. The Committee recalls that it has repeatedly held that it is not a final instance competent to re-evaluate findings of fact or the application of domestic legislation, unless it can be ascertained that the proceedings before the domestic courts were arbitrary or amounted to a denial of justice. The Committee considers that the authors have failed to substantiate, for purposes of admissibility, that the conduct of the Supreme Court amounted to arbitrariness or a denial of justice. Accordingly, the communication is inadmissible under article 2 of the Optional Protocol.

The authors complained that the Uruguayan courts had not applied local law properly in determining amounts of compensation for human rights abuses. The HRC was not prepared to disturb the local courts’ findings in this regard. The case concerned the narrow issue of the proper application of Uruguayan law on remedies for human rights violations, rather than the substantive issue of whether the compensation granted satisfied article 2(3). [25.22] Dahanayake v Sri Lanka (1331/04) concerned the forcible relocations of people to make way for a major road-building development project. They were awarded compensation by local Sri Lankan courts in respect of discrimination. The HRC could not find the compensation to be inadequate, so any claims before it regarding discrimination were inadmissible as the authors could no longer be considered victims of any unremedied discrimination.12 Similarly, in Smirnova v Russian Federation (712/96), the HRC found claims that had been previously 12

At para 6.5.

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adjudicated in the author’s favour by the European Court of Human Rights to be inadmissible, as that adjudication constituted a relevant remedy.13 [25.23]

GUNARATNA v SRI LANKA (1432/05)

The complaint concerned the author’s arrest, detention, and torture. Six years after the alleged violations, the Supreme Court actually found that his treatment breached the State’s constitution. He claimed that the Court did not deliver an appropriate remedy due to the delay, as well as the fact that he was awarded inadequate compensation. The HRC agreed: ¶8.3. The Committee notes that the author’s fundamental rights application before the Supreme Court was disposed of only after a long delay of six years. Moreover, despite the fact that it has now been eight years since the author’s arrest, the information provided by the State party with respect to the prosecution of those responsible has been minimal and despite requests it has not indicated whether indictments have actually been issued and when the cases would be likely to be heard. Under article 2, paragraph 3, the State party is under an obligation to ensure that remedies are effective. Expedition and effectiveness are particularly important in the adjudication of cases involving torture. The Committee is of the view that the State party cannot avoid its responsibility under the Covenant by putting forward the argument that the domestic authorities have already dealt or are still dealing with the matter, when it is clear that the remedies provided by the State party have been unduly prolonged without any valid reason or justification, indicating failure to implement these remedies. For these reasons, the Committee finds that the State party violated article 2, paragraph 3, read together with articles 7 and 9 of the Covenant. As far as the claims of separate violations of articles 7 and 9 are concerned, the Committee notes that the State party’s Supreme Court has already found in favour of the author in this regard.

Ultimately, the delay is what drove the HRC to find the Sri Lankan court’s vindication to be inadequate in this case. It did not specifically comment on the appropriateness or otherwise of the amount of compensation awarded by the court.

Amnesties [25.24]

GENERAL COMMENT 31

¶18. . . . Accordingly, where public officials or State agents have committed violations of the Covenant rights referred to in this paragraph, the States Parties concerned may not relieve perpetrators from personal responsibility, as has occurred with certain amnesties (see General Comment 20 (44) [9.183]) and prior legal immunities and indemnities. Furthermore, no official status justifies persons who may be accused of responsibility for such violations being held immune from legal responsibility. Other impediments to the establishment of legal responsibility should also be removed, such as the defence of obedience to superior orders or unreasonably short periods of statutory limitation in cases where such limitations are applicable. States parties should also assist each other to bring to justice persons suspected of having committed acts in violation of the Covenant that are punishable under domestic or international law. 13

At para 9.3.

878 [25.25]

The ICCPR BENAZIZA v ALGERIA (1588/07)

This case concerned the disappearance of one Daouia Benaziza and was submitted by her family members. The complaint involved the following claim: ¶3.4. The author points out that there has been no acknowledgment of Daouia Benaziza’s detention and that, consequently, she has been deprived of her right to an effective remedy, as guaranteed by the Covenant. The Benaziza family, too, has been deprived of an effective remedy, since the numerous petitions it has filed have been met with silence and inaction by the authorities. The author explains that section IV of the Charter for Peace and National Reconciliation states that the Algerian people reject all allegations that hold the State responsible for deliberate disappearances. According to article 45 of Ordinance No. 06–01 of 27 February 2006, which implements the Charter: ‘Legal proceedings may not be brought against individuals or groups who are members of any branch of the defence or security forces of the Republic for actions undertaken to protect persons and property, safeguard the nation or preserve the institutions of the Republic. Any such allegation or complaint shall be declared inadmissible by the competent judicial authority.’ The Ordinance also renders the families of the disappeared liable to heavy fines and harsh prison sentences if they speak of or report these crimes. The Charter has therefore deprived the family of its right to institute proceedings. Ten years after Daouia Benaziza’s disappearance, her family still does not know what happened to her. The author is therefore of the view that the State has failed to meet its obligations under article 2, paragraph 3, of the Covenant.

Algeria submitted the following argument: ¶4.1. . . . The State party considers that communications incriminating public officials, or persons acting on behalf of public authorities, in enforced disappearances during the period in question, that is, from 1993 to 1998, must be considered in the broader context of the domestic socio-political and security environment that prevailed during a period in which the Government was struggling to fight terrorism. . . . ¶4.3. The State party stresses that it was in view of the diversity and complexity of the situations covered by the concept of disappearance that the Algerian legislature, following the referendum on the Charter for Peace and National Reconciliation, had recommended a comprehensive approach to the issue of the disappeared under which the cases of all persons who had disappeared during the national tragedy would be dealt with, all victims would be offered support to overcome their ordeal and all victims of disappearance and their beneficiaries would be entitled to redress. According to statistics from the Ministry of the Interior, 8,023 disappearances have been reported, 6,774 cases examined, 5,704 approved for compensation and 934 rejected, with 136 still pending. A total of 371,459,390 Algerian dinars (DA) has been paid out as compensation to all the victims concerned. In addition, a total of DA 1,320,824,683 has been paid out in monthly pensions. . . . ¶4.6. The State party then turns its attention to the nature, principles and content of the Charter for Peace and National Reconciliation and its implementing legislation. It stresses that, in accordance with the principle of the inalienability of peace, which has become an international right to peace, the Committee should support and consolidate peace and encourage national reconciliation with a view to strengthening States affected by internal crises. As part of this effort to achieve national reconciliation, the State party adopted the Charter. The ordinance implementing the Charter prescribes legal measures for the discontinuance of criminal proceedings and the commutation or remission of sentences for any

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person who is found guilty of acts of terrorism or who benefits from the provisions of the legislation on civil dissent, except for persons who have committed or been accomplices in mass killings, rapes or bombings in public places. This ordinance also helps to address the issue of disappearances by introducing a procedure for filing an official finding of presumed death, which entitles beneficiaries to receive compensation as victims of the national tragedy. Social and economic measures have also been put in place, including the provision of employment placement assistance and compensation for all persons considered victims of the national tragedy. Lastly, the ordinance prescribes political measures, such as a ban on holding political office for any person who exploited religion in the past in a way that contributed to the national tragedy, and establishes the inadmissibility of any proceedings brought against individuals or groups who are members of any branch of the defence and security forces of the Republic for actions undertaken to protect persons and property, safeguard the nation and preserve the institutions of the Republic. ¶4.7. In addition to the establishment of funds to compensate all victims of the national tragedy, the sovereign people of Algeria have, according to the State party, agreed to a process of national reconciliation as the only way to heal the wounds inflicted. The State party insists that the proclamation of the Charter reflects a desire to avoid confrontation in the courts, media outpourings and political score settling. The State party is therefore of the view that the authors’ allegations are covered by the comprehensive internal settlement mechanism provided for in the Charter.

The HRC did not accept Algeria’s arguments, and its findings of violation were peppered with criticism of Algeria’s amnesty provisions: ¶9.2. Clearly, the State party prefers to maintain that communications incriminating public officials, or persons acting on behalf of public authorities, in enforced disappearances during the period in question, that is, from 1993 to 1998, must be considered in the broader context of the domestic socio-political and security environment that prevailed during a period in which the Government was struggling to fight terrorism and that, consequently, they should not be considered by the Committee under the individual complaints mechanism. The Committee wishes to recall the concluding observations that it addressed to Algeria at its ninety-first session,14 as well as its jurisprudence, according to which the State party should not invoke the provisions of the Charter for Peace and National Reconciliation against persons who invoke provisions of the Covenant or who have submitted or may submit communications to the Committee. As emphasized in its concluding observations concerning Algeria, the Committee considers that Ordinance No. 06–01, without the amendments recommended by the Committee, appears to promote impunity and therefore cannot, as it currently stands, be considered compatible with the Covenant. The Committee rejects, furthermore, the argument of the State party that the author’s failure to take any steps to submit her allegations for examination has so far prevented the Algerian authorities from taking a position on the scope and limitations of the applicability of the Charter. . . . ¶9.9. The author invokes article 2, paragraph 3, of the Covenant, which confers on States parties the obligation to ensure that all persons have accessible, effective and enforceable remedies in order to exercise these rights. The Committee attaches importance to the establishment by States parties of appropriate judicial and administrative mechanisms for addressing claims of rights violations. It refers to its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, which 14

Concluding Observations on Algeria (2007) UN doc CCPR/C/DZA/CO/3, para 7(a).

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provides, inter alia, that a failure by a State party to investigate allegations of violations could, in and of itself, give rise to a separate breach of the Covenant. In the present case, the information before the Committee indicates that the author did not have access to an effective remedy. The Committee therefore concludes that the facts before it disclose a violation of the rights of the author’s grandmother under article 2, paragraph 3, of the Covenant, read in conjunction with article 6, paragraph 1, and articles 7, 9 and 16, and a violation of the rights of the author and her family under article 2, paragraph 3, of the Covenant, read in conjunction with article 7.

[25.26]

DJEBROUNI v ALGERIA (1781/08)

¶8.10. The author invokes article 2, paragraph 3, of the Covenant, which imposes on States parties the obligation to ensure an effective remedy for all persons whose Covenant rights have been allegedly violated. The Committee attaches importance to the establishment by States parties of appropriate judicial and administrative mechanisms for addressing claims of rights violations. It refers to its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, which provides, inter alia, that a failure by a State party to investigate allegations of violations could, in and of itself, give rise to a separate breach of the Covenant. In the instant case, the victim’s family repeatedly contacted the competent authorities regarding Kamel Djebrouni’s disappearance, but all their efforts were in vain and the State party failed to conduct a thorough and effective investigation into the disappearance of the author’s son. Furthermore, the absence of the legal right to take judicial proceedings since the promulgation of Ordinance No. 06–01 implementing the Charter for Peace and National Reconciliation continues to deprive Kamel Djebrouni and the author of access to an effective remedy, since the Ordinance prohibits, on pain of imprisonment, the pursuit of legal remedies to shed light on the most serious crimes such as enforced disappearances.27 The Committee concludes that the facts before it reveal a violation of article 2, paragraph 3, read in conjunction with article 6, paragraph 1; article 7; article 9; and article 16 of the Covenant with regard to Kamel Djebrouni; and article 2, paragraph 3, read in conjunction with article 7 of the Covenant, with regard to the author.

These sentiments have been expressed in numerous cases concerning disappearances in Algeria. As confirmed in General Comment 31, the HRC does not tolerate impunity provisions, even if adopted for the purposes of reconciliation, which trump the right to a remedy with regard to gross human rights abuses. [25.27] The HRC has stated, with regard to Brazil:15 ¶18. While noting that the State party has created a right to compensation for victims of human rights violations by Brazil’s military dictatorship, there has been no official inquiry into or direct accountability for the grave human rights violations of the dictatorship (arts. 2 and 14). To combat impunity, the State party should consider other methods of accountability for human rights crimes committed under the military dictatorship, including disqualifying of gross human rights violators from relevant public office and establishing justice and truth inquiry processes. The State party should make public all documents relevant to human rights abuses, including the documents currently withheld pursuant to presidential decree 4553. 15 (2005) UN doc CCPR/C/BRA/CO/2; see also Concluding Observations on Spain (2009) UN doc CCPR/C/ESP/CO/5, para 9.

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International Remedies [25.28] To what extent, if at all, does article 2(3) apply to international remedies? This issue was addressed in the following case. KORNEENKO v BELARUS (1634/07) The HRC found a violation in respect of the author’s rights in an earlier case.16 However, the State Party had failed to give effect to the HRC’s views. The author therefore submitted a follow-up complaint in respect of that failure. The HRC found the complaint inadmissible: ¶6.2. The Committee notes that the author in the present communication, in substance, only submits a complaint about the failure of the State party to give effect to the Committee’s Views in communication No. 1274/2004. ¶6.3. The Committee notes that the issue concerning the measures taken by the State party to give effect to the Committee’s Views is a matter for the existing follow-up procedure, as set up by the Committee. It further notes that the author’s claim is not based on any new factual developments related to his rights under the Covenant, beyond his unsuccessful attempt to obtain a remedy in respect to a violation already established by the Committee . . . . Under these circumstances, the Committee considers that the author has no separate claim under the Covenant that would go beyond what the Committee has already decided in the author’s earlier communication. In the light of these considerations, the Committee concludes that the communication before it is inadmissible under articles 1 and 2 of the Optional Protocol.

Therefore, it seems that the right to a remedy in article 2(3) does not include any right to have the HRC’s views in a Optional Protocol communication implemented. [25.29] In contrast, one may note the following recommendation by the HRC to Serbia and Montenegro in 2004, which seems to indicate that international remedies do have some relevance to article 2(3):17 ¶11. The Committee notes the State party’s public statements emphasizing its commitment to cooperate with the International Criminal Tribunal for the Former Yugoslavia (ICTY) in order to ensure that all persons suspected of grave human rights violations, including war crimes and crimes against humanity, are brought to trial. However, it remains concerned at the State party’s repeated failure to fully cooperate with ICTY, including with regard to the arrest of indictees (art. 2). The State party should extend to ICTY its full cooperation in all areas, including the investigation and prosecution of persons accused of having committed serious violations of international humanitarian law, and by apprehending and transferring those persons who have been indicted and remain at large, as well as granting ICTY full access to requested documents and potential witnesses.

16 17

Korneenko v Belarus (1274/04) [19.18]. See also Concluding Observations on Croatia (2009) UN doc CCPR/C/HRV/CO/2, para 20.

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Conclusion [25.30] The right to a remedy has arisen in numerous ICCPR cases, and examples of findings in that regard are found throughout this book, as well as in this chapter. Implementation requires States to take positive steps to investigate and provide remedies to a person in order to compensate that person for violations of ICCPR rights. While it remains a supporting guarantee rather than an independent free-standing right, article 2(3) has played a more prominent role in Optional Protocol decisions since the decision in Kazantzis v Cyprus (972/01).

Part IV

Alteration of ICCPR Duties

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26 Reservations, Denunciations, Succession, and Derogations • Reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Declarations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Interpretations of Reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Limits to States’ Rights of Reservation . . . . . . . . . . . . . . . . . . . . . . . • Determination of Incompatible Reservations . . . . . . . . . . . . . . . . . • What Reservations are Incompatible with the ICCPR? . . . . . . . . • Reservations to the First Optional Protocol . . . . . . . . . . . . . . . . . . • Reservations to the Second Optional Protocol . . . . . . . . . . . . . . . . • Effect of an Incompatible Reservation . . . . . . . . . . . . . . . . . . . . . . • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Denunciations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Derogations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Substantive Limits to the Power of Derogation . . . . . . . . . . . . . . . . . • Public Emergency Threatening the Life of the Nation. . . . . . . . . . • Requirement of Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . • Conformity with International Law . . . . . . . . . . . . . . . . . . . . . . . . • Non-discrimination in Derogation Measures . . . . . . . . . . . . . . . . . • Non-derogable Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Procedural Requirements for Article 4 . . . . . . . . . . . . . . . . . . . . . . • Burden of Proof and HRC’s Supervisory Role . . . . . . . . . . . . . . . • Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[26.02] [26.08] [26.12] [26.16] [26.17] [26.23] [26.30] [26.34] [26.35] [26.38] [26.40] [26.45] [26.51] [26.53] [26.53] [26.56] [26.60] [26.62] [26.64] [26.74] [26.79] [26.80]

[26.01] Upon ratification of the International Covenant on Civil and Political Rights (ICCPR), a State Party may limit its legal obligations by entering reservations. After ratification, the State Party may alter its duties by derogating from its ICCPR duties under article 4 in times of public emergency, so long as the rigorous requirements of article 4 are satisfied. However, the Human Rights Committee (HRC) has suggested that States Parties cannot abdicate their duties under the ICCPR by withdrawing their ratification by way of denunciation. The following commentary addresses the ability of States Parties to alter their duties under the ICCPR and the two Optional Protocols. It also addresses the issue of succession to ICCPR obligations, that is the situation where a State succeeds to another State’s ICCPR obligations without the necessity for ratification.

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Reservations [26.02] Upon ratification of the ICCPR, a State may enter reservations to some of the provisions. A reservation renders the reserved provisions non-binding. A reservation can also act partially to reduce the effect of a certain guarantee, rather than entirely nullify its application. [26.03] Reservations undoubtedly dilute the effectiveness of treaties. The permissibility of reservations in international treaty law essentially represents a compromise between the normative strength of a treaty and the maximization of ratifications to a treaty. [26.04] In Wackenheim v France (854/99), the State Party failed to invoke a potentially relevant reservation in its reply to a complaint. The HRC stated that the reservation did ‘not, therefore, impede consideration of the communication by the Committee’.1 [26.05] The HRC has issued a General Comment regarding reservations to the ICCPR. This General Comment has proved controversial. The UK, the USA, and France have submitted formal responses to the HRC’s General Comment 24.2 In 2011, the International Law Commission (ILC) issued its ‘Guide to Practice on Reservations to Treaties’.3 These Guidelines do not entirely endorse General Comment 24. [26.06]

GENERAL COMMENT 24

¶1. As of 1 November 1994, 46 of the 127 States Parties to the International Covenant on Civil and Political Rights had, between them, entered 150 reservations of varying significance to their acceptance of the obligations of the Covenant. Some of these reservations exclude the duty to provide and guarantee particular rights in the Covenant. Others are couched in more general terms, often directed to ensuring the continued paramountcy of certain domestic legal provisions. Still others are directed at the competence of the Committee. The number of reservations, their content and their scope may undermine the effective implementation of the Covenant and tend to weaken respect for the obligations of States Parties. It is important for States Parties to know exactly what obligations they, and other States Parties, have in fact undertaken. And the Committee, in the performance of its duties under either Article 40 of the Covenant or under the Optional Protocols, must know whether a State is bound by a particular obligation or to what extent. This will require

1 At para 6.2. The relevant reservation was actually to the OP rather than the ICCPR, but the reasoning appears to apply to all reservations, in the unlikely event that a State failed to invoke a substantive reservation to the ICCPR. 2 See Observations by the United States on General Comment 24 (1996) 3 IHRR 265 (hereafter ‘USA’), Observations by the United Kingdom on General Comment 24 (hereafter ‘UK’) (1995) 3 IHRR 261, and Observations by France on General Comment 24 (hereafter ‘France’) (1997) 4 IHRR 6. 3 (2011) UN doc A/66/10, Add 1.

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a determination as to whether a unilateral statement is a reservation or an interpretative declaration and a determination of its acceptability and effects. . . . ¶4. The possibility of entering reservations may encourage States which consider that they have difficulties in guaranteeing all the rights in the Covenant nonetheless to accept the generality of obligations in that instrument. Reservations may serve a useful function to enable States to adapt specific elements in their laws to the inherent rights of each person as articulated in the Covenant. However, it is desirable in principle that States accept the full range of obligations, because the human rights norms are the legal expression of the essential rights that every person is entitled to as a human being.

[26.07] The HRC, in General Comment 24, appears to concede that reservations to the ICCPR are an unfortunate but necessary evil. Indeed, its antipathy towards ICCPR reservations is clearly enunciated in the final paragraph of General Comment 24: ¶20. . . . It is desirable for a State entering a reservation to indicate in precise terms the domestic legislation or practices which it believes to be incompatible with the Covenant obligation reserved; and to explain the time period it requires to render its own laws and practices compatible with the Covenant, or why it is unable to render its own laws and practices compatible with the Covenant. States should also ensure that the necessity for maintaining reservations is periodically reviewed, taking into account any observations and recommendations made by the Committee during examination of their reports. Reservations should be withdrawn at the earliest possible moment. Reports to the Committee should contain information on what action has been taken to review, reconsider or withdrawn reservations. DECLARATIONS

[26.08] As mentioned in paragraph 1 of General Comment 24 [26.06], reservations may be distinguished from other statements made by States Parties upon ratification, often called ‘understandings’ or ‘declarations’. The latter statements essentially give notice of a State’s interpretation of the Covenant. They have no legal effect in international law. GENERAL COMMENT 24 ¶3. It is not always easy to distinguish a reservation from a declaration as to a State’s understanding of the interpretation of a provision, or from a statement of policy. Regard will be had to the intention of the State, rather than the form of the instrument. If a statement, irrespective of its name or title, purports to exclude or modify the legal effect of a treaty in its application to the State, it constitutes a reservation. Conversely, if a so-called reservation merely offers a State’s understanding of a provision but does not exclude or modify that provision in its application to that State, it is, in reality, not a reservation.

[26.09]

TK v FRANCE (220/87)

In this case, the HRC was called upon to decide on the effect of the following statement submitted by France upon its ratification of the ICCPR: In the light of article 2 of the Constitution of the French Republic, the French government declares that article 27 is not applicable so far as the Republic is concerned.

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In TK, the HRC majority stated the following: ¶8.3. . . . The Covenant itself does not provide any guidance in determining whether a unilateral statement made by a State party upon accession to it should have preclusionary effect regardless of whether it is termed a reservation or declaration. The Committee observes in this respect that it is not the formal designation but the effect the statement purports to have that determines its nature. If the statement displays a clear intent on the part of the State party to exclude or modify the legal effect of a specific provision of a treaty, it must be regarded as a binding reservation, even if the statement is phrased as a declaration. In the present case, the statement entered by the French Government upon accession to the Covenant is clear: it seems to exclude the application of article 27 to France and emphasises this exclusion semantically with the words ‘is not applicable’. The statement’s intent is unequivocal and thus must be given preclusionary effect in spite of the terminology used. Furthermore, the State party’s submission of 15 January 1989 also speaks of a French ‘reservation’ in respect of article 27. Accordingly, the Committee considers that it is not competent to consider complaints directed against France concerning alleged violations of article 27 of the Covenant.

[26.10] Mrs Higgins delivered a vigorous dissent on this point: . . . I am not able to agree with the findings of the Committee that it is precluded by the French declaration of 4 November 1980 from examining the author’s claim as it relates to article 27 of the Covenant. The fact that the Covenant does not itself make the distinction between reservations and declarations does not mean that no distinction between these concepts exists, so far as the Covenant is concerned. Nor, in my view, is the matter disposed of by invocation of article 2 (1) (a) of the Vienna Convention on the Law of Treaties, which emphasises that intent, rather than nomenclature, is the key. An examination of the notification of 4 January 1982 shows that the Government of the Republic of France was engaged in two tasks: listing certain reservations and entering certain interpretative declarations. Thus in relation to article 4 (1), 9, 14 and 19 it uses the phrase ‘enters a reservation’. In other paragraphs it declares how terms of the Covenant are in its view to be understood in relation to the French Constitution, French legislation, or obligations under the European Convention on Human Rights. To note, by reference to article 2(1)(d) of the Vienna Convention, that it does not matter how a reservation is phrased or named, cannot serve to turn these interpretative declarations into reservations. Their content is clearly that of declarations. Further, the French notification shows that deliberately different language was selected to serve different legal purposes. There is no reason to suppose that the contrasting use, in different paragraphs, of the phrase ‘reservation’ and ‘declaration’ was not entirely deliberate, with its legal consequence well understood by the Government of the Republic. . . .

[26.11] Similar majority and minority opinions on the French statement were delivered in MK v France (222/87), SG v France (347/88), and GB v France (348/89). The majority decisions were again supported, without dissent, in RLM v France (363/89) and CLD v France (439/90). INTERPRETATIONS OF RESERVATIONS

[26.12]

MALEKI v ITALY (699/96)

The author complained of his trial in absentia by the State Party. Italy had made a statement, upon ratification, that the Italian practice governing trial in one’s own

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presence was compatible with the provisions of article 14(3)(d). Italy claimed that this statement was a reservation, protecting it from the author’s complaint. The HRC did not decide whether the statement was a declaration or a reservation. It decided as follows: ¶9.2. The State party’s argument is that its declaration concerning article 14, paragraph 3(d) is a reservation that precludes the Committee examining the author’s argument that his trial in absentia was not fair. However, that declaration deals only with article 14, paragraph 3(d), and does not relate to the requirements of article 14, paragraph 1. . . . Under this provision, basic requirements of a fair trial must be maintained, even when a trial in absentia, is not, ipso facto, a violation of a State party’s undertakings. These requirements include summoning the accused in a timely manner and informing him of the proceedings against him.

Thus, the State Party’s ‘reservation’ to the specific due process rights in article 14(3)(d) did not preclude examination of compatibility under the more general guarantee in article 14(1) [14.143]. This indicates that the HRC will endeavour to read reservations narrowly. [26.13]

HOPU and BESSERT v FRANCE (549/93)

This case again concerned, inter alia, the interpretation of the French reservation to article 27. The authors complained of breaches of their rights in Tahiti, a French colony. The majority interpreted that reservation as applying within France and within all of its dependent territories, including Tahiti, so the article 27 complaint was inadmissible. A minority of Mrs Evatt, Mrs Medina Quiroga, and Messrs Pocar, Scheinin, and Yalden found that the reservation did not apply in Tahiti: Whatever the legal relevance of the declaration made by France in relation to the applicability of article 27 may be in relation to the territory of metropolitan France, we do not consider the justification given in said declaration to be of relevance in relation to overseas territories under French sovereignty. The text of said declaration makes reference to article 2 of the French Constitution of 1958, understood to exclude distinctions between French citizens before the law. Article 74 of the same Constitution, however, includes a special clause for overseas territories, under which they shall have a special organization which takes into account their own interests within the general interests of the Republic. That special organization may entail, as France has pointed out in its submissions in the present communication, a different legislation given the geographic, social and economic particularities of these territories. Thus, it is the declaration itself, as justified by France, which makes article 27 of the Covenant applicable in so far as overseas territories are concerned.

It appears to have been textually possible for the HRC to interpret the French reservation (which the minority insisted on calling a declaration) as having no effect in the French dependent territories. Therefore, the HRC has not always read reservations as narrowly as possible. [26.14]

GE v GERMANY (1789/08)

This case concerned a claim under article 26 of the ICCPR regarding age discrimination in relation to the right to work. The communication itself was ultimately

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inadmissible for a failure to exhaust local remedies. Germany had argued that the claim was inadmissible due to its reservation to the Optional Protocol regarding article 26. The HRC disagreed, and stated: ¶7.3. The Committee notes the State party’s argument contesting the Committee’s competence in this case due to paragraph (c) of its reservation to the Optional Protocol, which provides that the competence of the Committee ‘shall not apply to communications by means of which a violation of article 26 of the [said Covenant] is reprimanded, if and insofar as the reprimanded violation refers to rights other than those guaranteed under the aforementioned Covenant.’ The State party, in its submission, construes the claim by the author as basically referring to an alleged violation of his right to choose or exercise an occupation, which is indeed not covered by the Covenant on Civil and Political Rights. . . .

Article 26 has been interpreted as a free-standing right of non-discrimination. It is not simply a right of non-discrimination in relation to other ICCPR rights, such as the analogous non-discrimination provision in the European Convention on Human Rights, article 14 [23.17]. Rather, it is a right of non-discrimination in relation to all rights, including, for example, the right to choose and exercise an occupation, at issue in this case. Germany’s reservation was arguably intended to confine article 26 to the analogous scope of article 14 ECHR. However, the HRC majority interpreted it otherwise: ¶7.3. . . . The Committee, however, considers the present communication as related to an alleged violation of the autonomous rights to equality and non-discrimination enshrined in article 26 of the Covenant. The Committee is thus not precluded from proceeding to examine whether the admissibility requirements have been met.

In other words, the HRC interpreted Germany’s reservation as follows. The scope of article 26 is limited to rights protected in the ICCPR. That scope includes article 26 itself. Therefore, Germany’s reservation did not apply to limit its scope at all. This interpretation deprives the German reservation of any meaningful application at all. It indicates that the HRC has no qualms about adopting such interpretations if they are linguistically possible. [26.15] Messrs Neuman, O’Flaherty, Iwasawa, and Sir Nigel Rodley, with whom Mr Salvioli essentially agreed on this point, concurred in the result, but disagreed with the treatment of the reservation. Part (c) of Germany’s reservation to the Optional Protocol denies the competence of the Committee with respect to communications ‘by means of which a violation of article 26 of the [Covenant] is reprimanded, if and insofar as the reprimanded violation refers to rights other than those guaranteed under the aforementioned Covenant.’ From its language and its context, it is clear that this reservation purports to limit the Committee’s competence over article 26 claims to situations in which an author alleges discrimination with respect to some other right contained in the Covenant, in a provision other than article 26 itself. Thus, the reservation would reduce the Committee’s competence to cases where article 26 serves an ‘accessory’ function, similar to the function of the non-discrimination norm in article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. . . .

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. . . The Committee maintains in paragraph 7.3 of its decision that the reservation does not apply to the author’s claim of age discrimination, because the author’s claim asserts a violation of the autonomous rights to equality and non-discrimination enshrined in article 26. This interpretation not only contradicts the clear meaning of the reservation, but appears to deprive the reservation of any content whatsoever. . . . I do not see how such a nullifying interpretation can be justified. To the contrary, the reservation (if permissible) would exclude the author’s claim of age discrimination from the Committee’s competence precisely because the claim is autonomous and not accessory— that is what the reservation means. Germany’s reservation might be impermissible, but the majority does not address that question . . .

It is submitted that the minority’s interpretation gave more effect to the clear intent behind the German reservation. LIMITS TO STATES’ RIGHTS OF RESERVATION

[26.16] There are limits to a State’s freedom to enter reservations, as outlined in General Comment 24: GENERAL COMMENT 24 ¶5. The Covenant neither prohibits reservations nor mentions any type of permitted reservation. The same is true of the first Optional Protocol. . . . ¶6. The absence of a prohibition on reservations does not mean that any reservation is permitted. The matter of reservations under the Covenant and the first Optional Protocol is governed by international law. Article 19(3) of the Vienna Convention on the Law of Treaties provides relevant guidance. It stipulates that where a reservation is not prohibited by the treaty or falls within the specified permitted categories, a State may make a reservation provided it is not incompatible with the object and purpose of the treaty. Even though, unlike some other human rights treaties, the Covenant does not incorporate a specific reference to the object and purpose test, that test governs the matter of interpretation and acceptability of reservations.

Article 19(3) of the Vienna Convention on the Law of Treaties 1969 (‘Vienna Convention’) did not come into force until 1980, after the date of entry into force of the Covenant. However, its norms reflect the customary law relating to reservations,4 so its relevance to reservations under the Covenant is uncontroversial. Determination of Incompatible Reservations [26.17] The HRC has confirmed that States may not submit reservations which are incompatible with the object and purpose of the ICCPR. How is such incompatibility to be determined? GENERAL COMMENT 24 ¶16. The Committee finds it important to address which body has the legal authority to make determinations as to whether specific reservations are compatible with the object and 4

See Reservations to the Genocide Case [1951] ICJ Rep 15.

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The ICCPR

purpose of the Covenant. As for international treaties in general, the International Court of Justice has indicated in the Reservations to the Genocide Convention Case (1951) that a State which objected to a reservation on the grounds of incompatibility with the object and purpose of a treaty could, through objecting, regard the treaty as not in effect as between itself and the reserving State. Article 20, paragraph 4, of the Vienna Convention on the Law of Treaties 1969 contains provisions most relevant to the present case on acceptance of and objection to reservations. This provides for the possibility of a State to object to a reservation made by another State. Article 21 deals with the legal effects of objections by States to reservations made by other States. Essentially, a reservation precludes the operation, as between the reserving and other States, of the provision reserved; and an objection thereto leads to the reservation being in operation as between the reserving and the objecting State only to the extent that it has not been objected to. ¶17. As indicated above, it is the Vienna Convention on the Law of Treaties that provides the definition of reservations and also the application of the object and purpose test in the absence of other specific provisions. But the Committee believes that its provisions on the role of State objections in relation to reservations are inappropriate to address the problem of reservations to human rights treaties. Such treaties, and the Covenant specifically, are not a web of inter-State exchanges of mutual obligations. They concern the endowment of individuals with rights. The principle of inter-State reciprocity has no place, save perhaps in the limited context of reservations to declarations on the Committee’s competence under article 41.5 And because the operation of the classic rules on reservations is so inadequate for the Covenant, States have often not seen any legal interest in or need to object to reservations. The absence of protest by States cannot imply that a reservation is either compatible or incompatible with the object and purpose of the Covenant. Objections have been occasional, made by some States but not others, and on grounds not always specified; when an objection is made, it often does not specify a legal consequence, or sometimes even indicates that the objecting party nonetheless does not regard the Covenant as not in effect as between the parties concerned. In short, the pattern is so unclear that it is not safe to assume that a non-objecting State thinks that a particular reservation is acceptable. In the view of the Committee, because of the special characteristics of the Covenant as a human rights treaty, it is open to question what effect objections have between States inter se. However, an objection to a reservation made by States may provide some guidance to the Committee in its interpretation as to its compatibility with the object and purpose of the Covenant.

[26.18] The UK and France disputed the HRC’s contention that the Vienna Convention rules did not wholly apply to the determination of the validity of ICCPR reservations.6 The ILC agreed with the UK and France in its preliminary conclusions issued on its Reservations study in 1997.7 ILC PRELIMINARY CONCLUSIONS ¶1. The Commission reiterates its view that articles 19 to 23 of the Vienna Conventions on the Law of Treaties of 1969 and 1986 govern the regime of reservations to treaties and that, in particular, the object and purpose of the treaty is the most important of the criteria for determining the admissibility of reservations; 5 Article 41 prescribes the inter-State complaints procedure, which has not yet been utilized. See discussion at [1.45]ff. 6 7 See UK, para 2; France, para 6. (1997) UN doc A/52/10, para 157.

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¶2. The Commission considers that, because of its flexibility, this regime is suited to the requirements of all treaties, of whatever object or nature, and achieves a satisfactory balance between the objectives of preservation of the integrity of the text of the treaty and universality of participation in the treaty; ¶3. The Commission considers that these objectives apply equally in the case of reservations to normative multilateral treaties, including treaties in the area of human rights and that, consequently, the general rules enunciated in the above-mentioned Vienna Conventions govern reservations to such instruments . . .

[26.19] In formulating its final Guide to Practice in 2011, the ILC conceded that there were significant gaps and uncertainties in the Vienna regime. It also ultimately decided that there was no need to formulate separate guidelines for human rights treaties, again disputing the HRC’s contention that a special regime is needed. [26.20] As the HRC believed that State Party objections were an unsuitable means of determining the incompatibility of reservations, it went on to assert their own competence to determine such incompatibility: GENERAL COMMENT 24 ¶18. It necessarily falls to the Committee to determine whether a specific reservation is compatible with the object and purpose of the Covenant. This is in part because, as indicated above, it is an inappropriate task for States parties in relation to human rights treaties, and in part because it is a task that the Committee cannot avoid in the performance of its functions. In order to know the scope of its duty to examine a State’s compliance under article 40 or a communication under the first Optional Protocol, the Committee has necessarily to take a view on the compatibility of a reservation with the object and purpose of the Covenant and with general international law. Because of the special character of a human rights treaty, the compatibility of a reservation with the object and purpose of the Covenant must be established objectively, by reference to legal principles, and the Committee is particularly well placed to perform this task. . . .

The HRC’s position is bolstered by judgments of the European Court of Human Rights and the Inter-American Court of Human Rights, which have used similar reasoning to uphold their own competence to determine the compatibility of reservations to the relevant regional human rights treaties.8 [26.21] The ILC’s position on the HRC’s competence is described in the following Guidelines of its 2011 Guide to Practice [26.05]. In Guideline 3.2 it confirms that ‘treaty monitoring bodies’ may assess the permissibility of reservations to their relevant treaties. ILC GUIDE TO PRACTICE 3.2.1 1. A treaty monitoring body may, for the purpose of discharging the functions entrusted to it, assess the permissibility of reservations formulated by a State . . . 8 See Belilos v Switzerland (1988) 10 EHRR 466 at 485–7; see also Advisory Opinion on the Effect of Reservations on the Entry into Force of the American Convention on Human Rights, Inter-American Court of Human Rights Advisory Opinion OC-2/82, 24 September 1982 (1982) 22 ILM 37 at 47.

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2. The assessment made by such a body in the exercise of this competence has no greater legal effect than that of the act which contains it. 3.2.3 States . . . that have formulated reservations to a treaty establishing a treaty monitoring body shall give consideration to that body’s assessment of the permissibility of the reservation. 3.2.4 When a treaty establishes a treaty monitoring body, the competence of that body is without prejudice to competence of the contracting States ... to assess the permissibility of reservations to that treaty . . . Thus, the ILC conceded that treaty bodies, such as the HRC, could give opinions on the compatibility of reservations. However, these views have no strict legal force, as is the case with all of the views of UN treaty bodies, as the UN treaty bodies are not courts [1.60]. [26.22] In the following case, the HRC confirmed its belief that it has the authority to determine the validity of reservations. KENNEDY v TRINIDAD and TOBAGO (845/98) Kennedy alleged a number of ICCPR violations entailed in the imposition upon him of a death penalty and in his detention on death row. The State Party argued against admissibility of the communication, as it had submitted a relevant reservation to the Optional Protocol.9 ¶4.2. The State party submits that because of this reservation . . . the Committee is not competent to consider the present communication. It is stated that in registering the communication and purporting to impose interim measures under rule 86 of the Committee’s rules of procedure, the Committee has exceeded its jurisdiction, and the State party therefore considers the actions of the Committee in respect of this communication to be void and of no binding effect.

The HRC issued a vigorous response to the State Party: ¶6.4. As opined in the Committee’s General Comment No. 24, it is for the Committee, as the treaty body to the International Covenant on Civil and Political Rights and its Optional Protocols, to interpret and determine the validity of reservations made to these treaties. The Committee rejects the submission of the State party that it has exceeded its jurisdiction in registering the communication and in proceeding to request interim measures under rule 86 of the rules of procedure. In this regard, the Committee observes that it is axiomatic that the Committee necessarily has jurisdiction to register a communication so as to determine whether it is or is not admissible because of a reservation. As to the effect of the reservation, if valid, it appears on the face of it, and the author has not argued to the contrary, that this reservation will leave the Committee without jurisdiction to consider the present communication on the merits. The Committee must, however, determine whether or not such a reservation can validly be made.

The HRC’s findings regarding the compatibility of the Trinidadian reservation are excerpted below [26.31]. 9

See [26.31] regarding the circumstances surrounding this reservation.

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What Reservations are Incompatible with the ICCPR? [26.23]

GENERAL COMMENT 24

¶7. In an instrument which articulates very many civil and political rights, each of the many articles, and indeed their interplay, secures the objectives of the Covenant. The object and purpose of the Covenant is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken.

[26.24] In paragraph 7 of General Comment 24, the HRC broadly outlines the ‘object and purpose’ of the Covenant. In subsequent paragraphs, the HRC specifies particular reservations which would defeat that object and purpose: ¶8. Reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant. Although treaties that are mere exchanges of obligations between States allow them to reserve inter se application of rules of general international law, it is otherwise in human rights treaties, which are for the benefit of persons within their jurisdiction. Accordingly, provisions in the Covenant that represent customary international law (and a fortiori when they have the character of peremptory norms) may not be the subject of reservations. Accordingly, a State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment,10 to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence, to execute pregnant women or children, to permit the advocacy of national, racial or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy their own culture, profess their own religion, or use their own language. And while reservations to particular clauses of Article 14 may be acceptable, a general reservation to the right to a fair trial would not be.11

[26.25] The ILC agrees in its Guideline 4.4.3 that reservations ‘cannot exclude or modify the legal effect of a treaty in a manner contrary to a peremptory norm’. However, the HRC’s identification of certain norms as peremptory is controversial, as is its apparent conflation of peremptory and customary norms. FRENCH OBSERVATIONS ON GENERAL COMMENT 24 ¶2. Paragraph 8 is drafted in such a way as to link the two distinct legal concepts of ‘peremptory norms’ and ‘rules of customary international law’, to the point of confusing them. . . . 12 In order to dispel any risk of confusion, France would like to raise the following points: International custom is proof that a general practice has been accepted as law. It must be acknowledged that it is difficult—however regrettable that may be—to identify practices in the human rights area that fit this definition exactly. It would be premature, to say the least,

10 11

See also Concluding Observations on Botswana (2008) UN doc CCPR/C/BWA/CO/1, para 14. 12 See also General Comment 32, para 5 See also ILC Guideline 4.4.2.

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to claim that all the examples cited in the report fit the definition of international custom cited above. Although it may be accepted that certain human rights treaties formalise customary principles, this does not mean that the State’s duty to observe a general customary principle should be confused with its agreement to be bound by the expression of that principle in a treaty, especially with the developments and clarifications that such formalisation involves. ¶Finally, it goes without saying that the customary rule concept can in no way be equated with a peremptory norm of international law. . . .

France has entered a reservation to article 27, the guarantee of minority rights. Prior to publication of General Comment 24, the HRC had apparently recognized the validity of this reservation by declining to consider complaints of French breaches of article 27 submitted by Bretons in cases such as TK v France (220/87) [26.09]. Its General Comment indicates that this position could now be reversed. However, the effectiveness of the reservation was reconfirmed in Hopu and Bessert v France (549/93), which was decided after publication of General Comment 24 [26.13]. [26.26]

US OBSERVATIONS ON GENERAL COMMENT 24

It is clear that a State cannot exempt itself from a peremptory norm of international law by making a reservation to the Covenant. It is not at all clear that a State cannot choose to exclude one means of enforcement of particular norms by reserving against inclusion of those norms in its Covenant obligations. . . . 13 The precise specification of what is contrary to customary international law, moreover, is a much more substantial question than indicated by the Comment. Even where a rule is generally established in customary international law, the exact contours and meaning of the customary law principle may need to be considered. Paragraph 8, however, asserts in a wholly conclusory fashion that a number of propositions are customary international law which, to speak plainly, are not. It cannot be established on the basis of practice or other authority, for example, that the mere expression (albeit deplorable) of national, racial or religious hatred (unaccompanied by any overt action or preparation) is prohibited by customary international law. The Committee seems to be suggesting here that the reservations which a large number of States Parties have submitted to Article 20 are per se invalid. Similarly, while many are opposed to the death penalty in general and the juvenile death penalty in particular, the practice of States demonstrates that there is currently no blanket prohibition in customary international law.14 Such a cavalier approach to international law by itself would raise serious concerns about the methodology of the Committee as well as its authority.

13

The UK agreed in its comments, para 5. The USA has in fact entered reservations to arts 20 and 6(5) (which prohibits imposition of the death penalty on juveniles), so its comments were probably partially designed to defend the validity of its own reservations. 14

Reservations, Denunciations, Succession, and Derogations [26.27]

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GENERAL COMMENT 34

In its General Comment on article 19, freedom of opinion and expression, the HRC stated the following on reservations to article 19: ¶5. Taking account of the specific terms of article 19, paragraph 1, as well as the relationship of opinion and thought (article 18), a reservation to paragraph 1 would be incompatible with the object and purpose of the Covenant. . . . ¶6. Taking account of the relationship of freedom of expression to the other rights in the Covenant, while reservations to particular elements of article 19, paragraph 2, may be acceptable, a general reservation to the rights set out in paragraph 2 would be incompatible with the object and purpose of the Covenant.

[26.28] The HRC’s comments regarding the incompatibility of other specific reservations, outlined below, proved less controversial. GENERAL COMMENT 24 ¶9. Applying more generally the object and purpose test to the Covenant, the Committee notes that, for example, reservation to article 1 denying peoples the right to determine their own political status and to pursue their economic, social and cultural development, would be incompatible with the object and purpose of the Covenant. Equally, a reservation to the obligation to respect and ensure the rights, and to do so on a non-discriminatory basis (Article 2(1)) would not be acceptable. Nor may a State reserve an entitlement not to take the necessary steps at the domestic level to give effect to the rights of the Covenant (Article 2(2)). ¶10. The Committee has further examined whether categories of reservations may offend the ‘object and purpose’ test. In particular, it falls for consideration as to whether reservations to the non-derogable provisions of the Covenant are compatible with its object and purpose. . . . A reservation to the provisions of article 4 itself, which precisely stipulates the balance to be struck between the interests of the State and the rights of the individual in times of emergency, would fall in this category. And some non-derogable rights, which in any event cannot be reserved because of their status as peremptory norms, are also of this character—the prohibition of torture and arbitrary deprivation of life are examples. While there is no automatic correlation between reservations to non-derogable provisions, and reservations which offend against the object and purpose of the Covenant, a State has a heavy onus to justify such a reservation. ¶11. The Covenant consists not just of the specified rights, but of important supportive guarantees. These guarantees provide the necessary framework for securing the rights in the Covenant and are thus essential to its object and purpose. Some operate at the national level and some at the international level. Reservations designed to remove these guarantees are thus not acceptable. Thus, a State could not make a reservation to article 2, paragraph 3, of the Covenant, indicating that it intends to provide no remedies for human rights violations. Guarantees such as these are an integral part of the structure of the Covenant and underpin its efficacy. The Covenant also envisages, for the better attainment of its stated objectives, a monitoring role for the Committee. Reservations that purport to evade that essential element in the design of the Covenant, which is also directed to securing the enjoyment of the rights, are also incompatible with its object and purpose. A State may not reserve the right not to present a report and have it considered by the Committee. The Committee’s

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role under the Covenant, whether under article 40 or under the Optional Protocols, necessarily entails interpreting the provisions of the Covenant and the development of a jurisprudence. Accordingly, a reservation that rejects the Committee’s competence to interpret the requirements of any provisions of the Covenant would also be contrary to the object and purpose of that treaty. ¶12. The intention of the Covenant is that the rights contained therein should be ensured to all those under a State’s party’s jurisdiction. To this end certain attendant requirements are likely to be necessary. Domestic laws may need to be altered properly to reflect the requirements of the Covenant; and mechanisms at the domestic level will be needed to allow the Covenant rights to be enforceable at the local level. Reservations often reveal a tendency of States not to want to change a particular law. And sometimes that tendency is elevated to a general policy. Of particular concern are widely formulated reservations which essentially render ineffective all Covenant rights which would require any change in national law to ensure compliance with Covenant obligations. No real international rights or obligations have thus been accepted. And when there is an absence of provisions to ensure that Covenant rights may be sued on in domestic courts, and, further, a failure to allow individual complaints to be brought to the Committee under the first Optional Protocol, all the essential elements of the Covenant guarantees have been removed. . . . 15 ¶19. Reservations must be specific and transparent, so that the Committee, those under the jurisdiction of the reserving State and other States parties may be clear as to what obligations of human rights compliance have or have not been undertaken. Reservations may thus not be general, but must refer to a particular provision of the Covenant and indicate in precise terms its scope in relation thereto. When considering the compatibility of possible reservations with the object and purpose of the Covenant, States should also take into consideration the overall effect of a group of reservations, as well as the effect of each reservation on the integrity of the Covenant, which remains an essential consideration. States should not enter so many reservations that they are in effect accepting a limited number of human rights obligations, and not the Covenant as such. So that reservations do not lead to a perpetual non-attainment of international human rights standards, reservations should not systematically reduce the obligations undertaken only to the presently existing in less demanding standards of domestic law. Nor should interpretative declarations or reservations seek to remove an autonomous meaning to Covenant obligations, by pronouncing them to be identical, or to be accepted only insofar as they are identical, with existing provisions of domestic law. States should not seek through reservations or interpretative declarations to determine that the meaning of a provision of the Covenant is the same as that given by an organ of any other international treaty body.

[26.29] The HRC has upheld reservations in several cases, indicating that those reservations were in fact valid. For example, it did not hear a complaint regarding article 14(5) due to a Norwegian reservation in Harward v Norway (451/91). France’s reservation to article 27 was upheld in Hopu and Bessert v France (549/93). Australia’s reservation to article 10(2)(a), regarding the separation of unconvicted and convicted prisoners, was upheld in Cabal and Pasini v Australia (1020/01) and Minogue v Australia (954/00). 15 Article 27 of the Vienna Convention prohibits the invocation of internal law as a justification for breaching treaties. See also ILC Guideline 3.1.5.5.

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Reservations to the First Optional Protocol GENERAL COMMENT 24

[26.30]

¶13. The issue arises as to whether reservations are permissible under the first Optional Protocol and, if so, whether any such reservation might be contrary to the object and purpose of the Covenant or of the first Optional Protocol itself. It is clear that the first Optional Protocol is itself an international treaty, distinct from the Covenant but closely related to it. Its object and purpose is to recognise the competence of the Committee to receive and consider communications from individuals who claim to be victims of a violation by a State party of any of the rights in the Covenant. States accept the substantive rights of individuals by reference to the Covenant, and not the first Optional Protocol. The function of the first Optional Protocol is to allow claims in respect of those rights to be tested before the Committee. Accordingly, a reservation to an obligation of a State to respect and ensure a right contained in the Covenant, made under the first Optional Protocol when it has not previously been made in respect of the same rights under the Covenant, does not affect the State’s duty to comply with its substantive obligation. A reservation cannot be made to the Covenant through the vehicle of the Optional Protocol but such a reservation would operate to ensure that the State’s compliance with that obligation may not be tested by the Committee under the first Optional Protocol. And because the object and purpose of the first Optional Protocol is to allow the rights obligatory for a State under the Covenant to be tested before the Committee, a reservation that seeks to preclude this would be contrary to the object and purpose of the first Optional Protocol, even if not of the Covenant. A reservation to a substantive obligation made for the first time under the first Optional Protocol would seem to reflect an intention by the State concerned to prevent the Committee from expressing its views relating to a particular article of the Covenant in an individual case.

France vigorously disagreed with paragraph 13, stating that ‘nothing in international law appears necessarily to prohibit a State from qualifying or restricting its acceptance of the [First Optional] Protocol’.16 [26.31]

KENNEDY v TRINIDAD and TOBAGO (845/98)

This case concerned allegations regarding various aspects of the author’s death sentence. In this case, the HRC had to determine the validity of the following Trinidadian reservation to the First Optional Protocol: ¶4.1. In its submission of 8 April 1999, the State party makes reference to its instrument of accession to the Optional Protocol of 26 May 1998, which included the following reservation: ‘ . . . Trinidad and Tobago re-accedes to the Optional Protocol to the International Covenant on Civil and Political Rights with a Reservation to article 1 thereof to the effect that the Human Rights Committee shall not be competent to receive and consider communications relating to any prisoner who is under sentence of death in respect of any matter relating to his prosecution, his detention, his trial, his conviction, his sentence or the carrying out of the death sentence on him and any matter connected therewith.’

16

France, para 4.

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The circumstances giving rise to this reservation are described directly below. ¶6.2. On 26 May 1998, the Government of Trinidad and Tobago denounced the first Optional Protocol to the International Covenant on Civil and Political Rights. On the same day, it reacceded, including in its instrument of reaccession the reservation set out in paragraph 4.1 above. ¶6.3. To explain why such measures were taken, the State party makes reference to the decision of the Judicial Committee of the Privy Council in Pratt and Morgan v the Attorney General for Jamaica 2 A.C. 1, 1994, in which it was held that ‘in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute “inhuman or degrading punishment or other treatment”’ in violation of section 17 of the Jamaican Constitution.17 The effect of the decision for Trinidad and Tobago is that inordinate delays in carrying out the death penalty would contravene section 5, paragraph 2(b), of the Constitution of Trinidad and Tobago, which contains a provision similar to that in section 17 of the Jamaican Constitution. The State party explains that as the decision of the Judicial Committee of the Privy Council represents the constitutional standard for Trinidad and Tobago, the Government is mandated to ensure that the appellate process is expedited by the elimination of delays within the system in order that capital sentences imposed pursuant to the laws of Trinidad and Tobago can be enforced. Thus, the State party chose to denounce the Optional Protocol: ‘In the circumstances, and wishing to uphold its domestic law to subject no one to inhuman and degrading punishment or treatment and thereby observe its obligations under article 7 of the International Covenant on Civil and Political Rights, the Government of Trinidad and Tobago felt compelled to denounce the Optional Protocol. Before doing so, however, it held consultations on 31 March 1998, with the Chairperson and the Bureau of the Human Rights Committee with a view to seeking assurances that the death penalty cases would be dealt with expeditiously and completed within 8 months of registration. For reasons which the Government of Trinidad and Tobago respects, no assurance could be given that these cases would be completed within the timeframe sought.’

The Trinidadian reservation was prompted by a desire to eliminate delays in the execution of prisoners on death row, so as to accord with a Privy Council decision which had ruled that delays of over five years were unconstitutional in Jamaica (and Trinidad and Tobago). Continued access to the Optional Protocol complaints mechanism for death row inmates a fortiori extended their detention on death row, as Trinidad and Tobago was obliged not to execute persons whilst their complaints were being considered by the HRC.18 In Kennedy, the HRC majority decided in the following terms that the reservation was invalid: ¶6.7. The present reservation, which was entered after the publication of General Comment No. 24, does not purport to exclude the competence of the Committee under the Optional Protocol with regard to any specific provision of the Covenant, but rather to the entire Covenant for one particular group of complainants, namely prisoners under sentence of death. This does not, however, make it compatible with the object and purpose of the Optional Protocol. On the contrary, the Committee cannot accept a reservation which 17 The Human Rights Committee has taken a different view from that of the Privy Council on the human rights compatibility of the ‘death row phenomenon’: see [9.81]ff. 18 See [1.64]ff on interim orders, which are often made in capital punishment cases.

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singles out a certain group of individuals for lesser procedural protection than that which is enjoyed by the rest of the population. In the view of the Committee, this constitutes a discrimination which runs counter to some of the basic principles embodied in the Covenant and its Protocols, and for this reason the reservation cannot be deemed compatible with the object and purpose of the Optional Protocol. The consequence is that the Committee is not precluded from considering the present communication under the Optional Protocol.

[26.32] Messrs Ando, Bhagwati, Klein, and Kretzmer issued a dissenting opinion in Kennedy: ¶6. . . . [A]ssumption by a state of the obligation to ensure and protect all the rights set out in the Covenant does not grant competence to the Committee to consider individual claims. Such competence is acquired only if the State party to the Covenant also accedes to the Optional Protocol. If a State party is free either to accept or not accept an international monitoring mechanism, it is difficult to see why it should not be free to accept this mechanism only with regard to some rights or situations, provided the treaty itself does not exclude this possibility. All or nothing is not a reasonable maxim in human rights law. ¶7. The Committee takes the view that the reservation of the State party in the present case is unacceptable because it singles out one group of persons, those under sentence of death, for lesser procedural protection than that enjoyed by the rest of the population. According to the Committee’s line of thinking this constitutes discrimination which runs counter to some of the basic principles embodied in the Covenant and its Protocols. We find this argument unconvincing. ¶8. It goes without saying that a State party could not submit a reservation that offends peremptory rules of international law. Thus, for example, a reservation to the Optional Protocol that discriminated between persons on grounds of race, religion or sex, would be invalid. However, this certainly does not mean that every distinction between categories of potential victims of violations by the State party is unacceptable. All depends on the distinction itself and the objective reasons for that distinction. ¶9. When dealing with discrimination that is prohibited under article 26 of the Covenant, the Committee has consistently held that not every differentiation between persons amounts to discrimination. There is no good reason why this approach should not be applied here. As we are talking about a reservation to the Optional Protocol, and not to the Covenant itself, this requires us to examine not whether there should be any difference in the substantive rights of persons under sentence of death and those of other persons, but whether there is any difference between communications submitted by people under sentence of death and communications submitted by all other persons. The Committee has chosen to ignore this aspect of the matter, which forms the very basis for the reservation submitted by the State party. ¶10. The grounds for the denunciation of the Optional Protocol by the State party are set out in paragraph 6.3 of the Committee’s views and there is no need to rehearse them here. What is clear is that the difference between communications submitted by persons under sentence of death and others is that they have different results. Because of the constitutional constraints of the State party the mere submission of a communication by a person under sentence of death may prevent the State party from carrying out the sentence imposed, even if it transpires that the State party has complied with its obligations under the Covenant. In other words, the result of the communication is not dependent on the Committee’s views whether there has been a violation and if so what the recommended remedy is but on mere

902

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submission of the communication. This is not the case with any other category of persons who might submit communications. ¶11. It must be stressed that if the constitutional constraints faced by the State party had placed it in a situation in which it was violating substantive Covenant rights, denunciation of the Optional Protocol, and subsequent reaccession, would not have been a legitimate step, as its object would have been to allow the State party to continue violating the Covenant with impunity. Fortunately, that is not the situation here. While the Committee has taken a different view from that taken by the Privy Council [9.81] on the question of whether the mere time on death row makes delay in implementation of a death sentence cruel and inhuman punishment, a State party which adheres to the Privy Council view does not violate its obligations under the Covenant. ¶12. In the light of the above, we see no reason to consider the State party’s reservation incompatible with the object and purpose of the Optional Protocol. As the reservation clearly covers the present communication (a fact that is not contested by the author), we would hold the communication inadmissible.

[26.33]

GENERAL COMMENT 24

¶14. The Committee considers that reservations relating to the required procedures under the first Optional Protocol would not be compatible with its object and purpose. The Committee must control its own procedures as specified by the Optional Protocol and its rules of procedure. Reservations have, however, purported to limit the competence of the Committee to acts and events occurring after entry into force for the State concerned of the first Optional Protocol. In the view of the Committee this is not a reservation but, most usually, a statement consistent with its normal competence ratione temporis. At the same time, the Committee has insisted upon its competence, even in the face of such statements or observations, when events or acts occurring before the date of entry into force of the first Optional Protocol have continued to have an effect on the rights of a victim subsequent to that date. Reservations have been entered which effectively add an additional ground of inadmissibility under article 5, paragraph 2, by precluding examination of a communication when the same matter has already been examined by another comparable procedure. Insofar as the most basic obligation has been to secure independent third party review of the human rights of individuals, the Committee has, where the legal right and the subject matter are identical under the Covenant and under another international instrument, viewed such a reservation as not violating the object and purpose of the first Optional Protocol.

At the end of paragraph 14, the HRC alludes to the fact that a number of European parties to the Optional Protocol have entered reservations which preclude the HRC from examining a complaint that has previously been examined under the European Convention on Human Rights. These reservations have been found to be compatible with the First Optional Protocol. Reservations to the Second Optional Protocol [26.34]

GENERAL COMMENT 24

¶15. The primary purpose of the Second Optional Protocol is to extend the scope of the substantive obligations undertaken under the Covenant, as they relate to the right to life, by

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prohibiting execution and abolishing the death penalty. It has its own provision concerning reservations, which is determinative of what is permitted. Article 2, paragraph 1, provides that only one category of reservation is permitted, namely one that reserves the right to apply the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime. Two procedural obligations are incumbent upon State parties wishing to avail themselves of such a reservation. Article 2, paragraph 1, obliges such a State to inform the Secretary General, at the time of ratification or accession, of the relevant provisions of its national legislation during warfare. This is clearly directed towards the objectives of specificity and transparency and in the view of the Committee a purported reservation unaccompanied by such information is without legal effect. Article 2, paragraph 3, requires a State making such a reservation to notify the Secretary General of the beginning or ending of a state of war applicable to its territory. In the view of the Committee, no State may seek to avail itself of its reservation (that is, have execution in time of war regarded as lawful) unless it has complied with the procedural requirement of article 2, paragraph 3.

Effect of an Incompatible Reservation [26.35] The ICJ, in its Advisory Opinion on Reservations to the Genocide Convention, said that a State cannot be considered a party to the relevant treaty if it has entered an incompatible reservation.19 However, the HRC disagreed that this regime applied in the context of the ICCPR. GENERAL COMMENT 24 ¶18. . . . The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation.

The HRC’s position is supported to some extent by ECHR jurisprudence. In Louzidou v Turkey, the European Court found that certain Turkish reservations to the ECHR were incompatible with the ECHR’s object and purpose.20 Nevertheless, Turkey remained a party to the ECHR, and its invalid reservations were severed, leaving the obligations under the ‘reserved’ provisions intact. In reaching this conclusion, the Court used a test of intention, and found that, upon ratification, Turkey had been willing to remain a State Party if such severance occurred.21 [26.36] All three responding States objected to the HRC’s assertions regarding the effect of an invalid reservation.22 The ILC’s Guideline 4.5.3 sets out a presumption that supports the HRC. Unless a contrary intention is established, the State remains a party to the treaty without the benefit of the reservation. However, if a treaty monitoring body, such as the HRC, expresses its view that a particular reservation is invalid, the ILC instructs the affected State to inform the treaty body

19

20 [1951] ICJ Rep 15 at 29. (1995) 20 EHRR 99 at para 89. (1995) 20 EHRR 99 at paras 90–8. 22 See UK, para 14; USA (no para numbers given), France, para 7. 21

904

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of its intention not to be bound by the treaty without the benefit of the reservation within 12 months. Hence, the presumption is a weak one. [26.37]

KENNEDY v TRINIDAD and TOBAGO (845/98)

The HRC majority confirmed its beliefs regarding the effect of an invalid reservation in this case by implicitly severing the reservation from Trinidad’s acceptance of the First Optional Protocol [26.31]. The dissenting minority (Messrs Ando, Bhagwati, Klein, and Kretzmer) commented in more detail on the effects of an invalid reservation: ¶15. In General Comment no. 24 the Committee discussed the factors that make a reservation incompatible with the object and purpose of the Covenant. In para. 18 the Committee considers the consequences of an incompatible reservation and states: ‘The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation.’ It is no secret that this approach of the Committee has met with serious criticism. Many experts in international law consider the approach to be inconsistent with the basic premises of any treaty regime, which are that the treaty obligations of a state are a function of its consent to assume those obligations. If a reservation is incompatible with the object and purpose of a treaty, the critics argue, the reserving state does not become a party to the treaty unless it withdraws that reservation. According to the critics’ view there is no good reason to depart from general principles of treaty law when dealing with reservations to the Covenant. ¶16. It is not our intention within the framework of the present case to reopen the whole issue dealt with in General Comment no. 24. Suffice it to say that even in dealing with reservations to the Covenant itself the Committee did not take the view that in every case an unacceptable reservation will fall aside, leaving the reserving state to become a party to the Covenant without benefit of the reservation. As can be seen from the section of General Comment no. 24 quoted above, the Committee merely stated that this would normally be the case. The normal assumption will be that the ratification or accession is not dependent on the acceptability of the reservation and that the unacceptability of the reservation will not vitiate the reserving state’s agreement to be a party to the Covenant. However, this assumption cannot apply when it is abundantly clear that the reserving state’s agreement to becoming a party to the Covenant is dependent on the acceptability of the reservation. The same applies with reservations to the Optional Protocol. ¶17. As explained in para. 6.2 of the Committee’s Views [26.31], on 26 May, 1998 the State party denounced the Optional Protocol and immediately reacceded with the reservation. It also explained why it could not accept the Committee’s competence to deal with communications from persons under sentence of death. In these particular circumstances it is quite clear that Trinidad and Tobago was not prepared to be a party to the Optional Protocol without the particular reservation, and that its reaccession was dependent on acceptability of that reservation. It follows that if we had accepted the Committee’s view that the reservation is invalid we would have had to hold that Trinidad and Tobago is not a

Reservations, Denunciations, Succession, and Derogations

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party to the Optional Protocol. This would, of course, also have made the communication inadmissible. CONCLUSION

[26.38] The HRC’s General Comment confirms that States Parties can enter reservations upon ratification which reduce their ICCPR obligations. However, it also identifies numerous instances of incompatibility which render reservations ineffective. Indeed, the General Comment indicates that many existing ‘reservations’ are actually ineffective, and thus have no impact on the actual extent of the reserving State’s ICCPR obligations. The HRC majority has reinforced its faith in the General Comment in its admissibility decision in Kennedy v Trinidad and Tobago (845/98).23 However, the persuasiveness of arguments against the General Comment, including its divergence from international law as expressed in the ICJ Advisory Opinion and the Vienna Convention, must be noted.24 [26.39] Uncertainty surrounds the issue of ICCPR reservations. This uncertainty evinces the clear tension between the classical view of treaties creating bilateral and multilateral relations between States, which informs the customary law of reservations, and the modern view that human rights treaties essentially create bilateral relations between States Parties and individuals.

Denunciations [26.40] Denunciation of a treaty occurs when a State Party withdraws its membership from that treaty. In August 1997, in an unprecedented move, the Democratic People’s Republic of Korea (‘North Korea’) purported to denounce the ICCPR, thus terminating its ICCPR obligations.25 In response, the HRC issued a General Comment dealing with denunciation. GENERAL COMMENT 26 ¶1. The International Covenant on Civil and Political Rights does not contain any provision regarding its termination and does not provide for denunciation or withdrawal. Consequently, the possibility of termination, denunciation or withdrawal must be considered in the light of applicable rules of customary international law which are reflected in the Vienna Convention on the Law of Treaties. On this basis, the Covenant is not subject to denunciation or withdrawal unless it is established that the parties intended to admit the possibility of denunciation or withdrawal or a right to do so is implied from the nature of the treaty.

23

See [26.21] and [26.31]. See S Joseph, ‘A Rights Analysis of the Covenant on Civil and Political Rights’ (1999) 5 Journal of International Legal Studies 58 at 91. 25 The notification of withdrawal was circulated to all States Parties by the UN Secretariat under cover of C.N.1997.TREATIES-10 of 12 November 1997. 24

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The ICCPR

¶2. That the parties to the Covenant did not admit the possibility of denunciation and that it was not a mere oversight on their part to omit reference to denunciation is demonstrated by the fact that article 41 (2) of the Covenant does permit a State party to withdraw its acceptance of the competence of the Committee to examine inter-State communications by filing an appropriate notice to that effect while there is no such provision for denunciation of or withdrawal from the Covenant itself. Moreover, the Optional Protocol to the Covenant, negotiated and adopted contemporaneously with it, permits States parties to denounce it. Additionally, by way of comparison, the Convention on the Elimination of All Forms of Racial Discrimination which was adopted one year prior to the Covenant, expressly permits denunciation. It can therefore be concluded that the drafters of the Covenant deliberately intended to exclude the possibility of denunciation. The same conclusion applies to the Second Optional Protocol in the drafting of which a denunciation clause was deliberately omitted. ¶3. Furthermore, it is clear that the Covenant is not the type of treaty which, by its nature, implies a right of denunciation. Together with the simultaneously prepared and adopted International Covenant on Economic, Social and Cultural Rights, the Covenant codifies in treaty form the universal human rights enshrined in the Universal Declaration of Human Rights, the three instruments together often being referred to as the ‘International Bill of Human Rights’. As such, the Covenant does not have a temporary character typical of treaties where a right of denunciation is deemed to be admitted, notwithstanding the absence of a specific provision to that effect. ¶4. The rights enshrined in the Covenant belong to the people living in the territory of the State party. The Human Rights Committee has consistently taken the view, as evidenced by its long-standing practice, that once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding change in Government of the State party, including dismemberment in more than one State or State succession or any subsequent action of the State party designed to divest them of the rights guaranteed by the Covenant. ¶5. The Committee is therefore firmly of the view that international law does not permit a State which has ratified or acceded or succeeded to the Covenant to denounce it or withdraw from it.

Therefore, according to the HRC, North Korea’s purported denunciation has no effect on its ICCPR obligations. States Parties have no power to extinguish their ICCPR obligations via denunciation.26 Nor can States Parties denounce the Second Optional Protocol. [26.41] In contrast, States Parties are expressly permitted under article 12 to denounce the First Optional Protocol. Trinidad and Tobago exercised this right on 26 August 1998, and re-acceded to the First Optional Protocol with a new

26 North Korea appears to have accepted this position, as it submitted its second periodic report in 2000 (2000) UN doc CCPR/C/PRK/2000/2, and replied to the HRC’s Concluding Observations on this report in 2002 (2002) UN doc CCPR/CO/72/PRK/Add.1.

Reservations, Denunciations, Succession, and Derogations

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27

reservation concerning capital punishment on the same date. Guyana withdrew from the Optional Protocol and re-acceded, subject to reservations concerning capital punishment, with effect from 5 April 1999. Jamaica withdrew from the First Optional Protocol on 23 October 1997, and has not, as at June 2003, re-acceded.28 All denunciations were impelled by the Privy Council’s decision in Pratt and Morgan v Attorney-General for Jamaica.29 [26.42] On 27 March 2000, Trinidad and Tobago again denounced the Optional Protocol, presumably in response to the decision in Kennedy v Trinidad and Tobago (845/98) [26.31]. This new denunciation took effect on 27 June 2000. Therefore, the Committee retains competence to consider the merits of communications submitted against Trinidad and Tobago before that date, even if the Committee renders its decision after that date.30 [26.43]

THOMAS v JAMAICA (800/98)

The effect of the Jamaican denunciation was confirmed in this case. The author’s allegations of ill-treatment contrary to articles 7 and 10 of the Covenant were inadmissible as they were ‘transmitted to the State party after Jamaica’s denunciation of the Optional Protocol came into force’.31 Mr Solari-Yrigoyen dissented in the following terms: Although the State party denounced the Optional Protocol, a measure which took effect on 23 January 1998, the events described in the author’s complaint occurred before that date and are [admissible].

[26.44] The HRC retains jurisdiction to hear cases from the relevant Caribbean States if the complaint was submitted prior to the notice of denunciation. For example, some of the complaints in Thomas v Jamaica (800/98) were admissible as they were submitted before that date. The same occurred in Deolall v Guyan (912/00) and Persaud and Rampersaud v Guyana (812/98). In Deolall, the HRC explained: ¶4.5. The Committee notes that the communication was submitted prior to Guyana’s denunciation of the Optional Protocol on 5 January 1999 and its re-accession to it with a reservation related to the competence of the Committee to examine death penalty cases. It concludes therefore that its jurisdiction is not affected by this denunciation. 27 The reservation prohibits consideration under the First Optional Protocol of matters arising from imposition of the death penalty. However, the HRC majority determined that the reservation was invalid in Kennedy v Trinidad and Tobago (845/98) [26.31]. 28 See generally N Schiffrin, ‘Jamaica Withdraws the Right of Individual Petition under the International Covenant on Civil and Political Rights’ (1998) 92 AJIL 563. 29 [1994] 2 AC 1. See Kennedy v Trinidad and Tobago (845/99), para 6.3 at [26.31]. 30 For example, the Committee issued its views in Boodoo v Trinidad and Tobago (721/96) on 2 April 2002. The communication had been initially submitted on 13 June 1994. 31 At para 6.3.

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Succession [26.45] The HRC has generally taken the view that successor States automatically succeed to their predecessors’ obligations under the ICCPR and the Optional Protocols.32 In General Comment 26, it stated: ¶4. The rights enshrined in the Covenant belong to the people living in the territory of the State party. The Human Rights Committee has consistently taken the view, as evidenced by its long-standing practice, that once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding change in government of the State party, including dismemberment in more than one State or State succession or any subsequent action of the State party designed to divest them of the rights guaranteed by the Covenant.

[26.46] The HRC’s position is in accord with that of other international human rights and humanitarian institutions, such as the ILO, the ICRC, the UN Commission on Human Rights,33 the UN Secretary General.34 Furthermore, article 34 of the Vienna Convention on the Succession of States in Respect of Treaties 1978 provides that successor States are generally bound by the treaty obligations of a predecessor State, though article 16 exempts ‘newly independent States’ from this rule. [26.47] No potential successor States to the ICCPR have failed expressly to undertake obligations under the ICCPR, though it is premature, at the time of writing, to judge the attitude of South Sudan, which only became a recognized State in mid-2011. The People’s Republic of China has even explicitly succeeded to the ICCPR obligations of, respectively, the UK and Portugal in respect of territories that have been transferred from those countries to the PRC, Hong Kong, and Macao, even though the PRC as an entity is not a party to the ICCPR.35 [26.48] However, a number of the relevant States, particularly from the former USSR, have expressly ‘acceded’ to the ICCPR, implying that they have not succeeded to the former States’ ICCPR obligations.36 It is possible that the practice of accession by the former Soviet Republics indicates that there is insufficient State practice to support the contention that human rights treaty obligations automatically apply to successor States. Alternatively, those accessions may have symbolic rather than legal effect, with the true legal position being one of succession.37 32 See UN doc CCPR/C/SR 1178 (reported at (1993) 15 EHRR 233), on the ICCPR obligations of the successor States in the territory of the former Yugoslavia. See UN doc A/48/40 (1993 Annual Report of the HRC), para 41, on successor obligations of States in the territory of the former USSR. 33 34 UN doc E/CN.4/1995/80 (1995). UN doc E/CN.4/1996/76 (1996). 35 Some confusion remains, however, over the status of the Optional Protocol in Macao: see [26.49]. 36 See also dissent by Mr Ando in Kuok Koi v Portugal (925/00). 37 See HRC, Concluding Observations on Azerbaijan (1994) UN doc CCPR/C/79/Add.38. H Beemelmans, in ‘State Succession in International Law: Remarks on Recent Theory and State Praxis’ (1997) 15 Boston University International Law Journal 71, argues at 89 that there is an ‘emerging customary rule that States automatically succeed to the obligations in treaties unless membership of those treaties is “closed”’, though ‘the successor States of the Soviet Union apparently have doubts about it’. See also, generally, M Beato, ‘Newly Independent and Separating States’ Succession to Treaties: Considerations on the Hybrid Dependency of the Republics of the Former Soviet Union’ (1994) 9 American University Journal of International Law and Policy 526.

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[26.49] In Kuok Koi v Portugal (925/00), the author was a resident of Macao, complaining about an alleged unfair trial in that territory. At the time he submitted the communication, Macao was a Portuguese colony. However, by the time of the communication’s consideration, Macao had been transferred to the jurisdiction of the People’s Republic of China (PRC). The PRC has explicitly accepted that the ICCPR continues to apply to Macao. However, it has made no such comment about the applicability of the Optional Protocol. The HRC majority in Kuok Koi determined that the Optional Protocol applied to Macao prior to its transfer to the PRC [4.06]. It did not have to decide whether the PRC had succeeded to those obligations.38 It is arguable that the HRC’s jurisprudence in General Comment 26, which explicitly concerns only the substantive provisions of the ICCPR, does not apply to the procedural provisions of the Optional Protocol. Little State practice exists regarding succession to the Optional Protocol. However, the Vienna Convention indicates that the PRC has succeeded to the OP, as the territory of Macao could not be classified as a newly independent State under the Vienna Convention. [26.50] In 2006, the United Nations Interim Administration Mission in Kosovo submitted a report in respect of the implementation of ICCPR rights in Kosovo. The HRC said the following about the ICCPR rights of Kosovans:39 ¶4. The Committee notes that certain problems resulting from the role of UNMIK as an interim administration and, at the same time, a United Nations body whose staff members enjoy privileges and immunities, the gradual transfer of competencies from UNMIK to the Provisional Institutions of Self-Government (PISG), the existence of Serbian parallel court and administrative structures in some parts of Kosovo, and the uncertainty about the future status of Kosovo raise questions of accountability and impede the implementation of the Covenant in Kosovo. However, the Committee recalls general comment No. 26 (1977) on continuity of obligations which states that the rights guaranteed under the Covenant belong to the people living in the territory of a State party, and that once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding changes in the administration of that territory. The protection and promotion of human rights is one of the main responsibilities conferred on UNMIK under Security Council resolution 1244 (1999). Moreover, as part of the applicable law in Kosovo and of the Constitutional Framework for the Provisional Institutions of Self-Government, the Covenant is binding on PISG. It follows that UNMIK, as well as PISG, or any future administration in Kosovo, are bound to respect and to ensure to all individuals within the territory of Kosovo and subject to their jurisdiction the rights recognized in the Covenant.

Therefore, unusually, the HRC claimed that an international organization, rather than a State, had obligations under the ICCPR by virtue of its succession to the obligations of Serbia and Montenegro [4.27].

38 Messrs Klein, Rivas Posada, and Yalden appeared to assume that the OP did not apply in the PRC with respect to Macao. See [6.41]. 39 (2006) UN doc CCPR/C/UNK/CO/1.

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The ICCPR

Derogations ARTICLE 4 ICCPR 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through its intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

[26.51] Under article 4, States may ‘derogate’ from or limit ICCPR guarantees as a proportionate response to a serious public emergency. The right of derogation, like the right of reservation, may represent a ‘necessary evil’. Whilst it is arguable that civil liberties must be curtailed during public emergencies to ensure general public safety, it is also undoubtedly true that some of the most egregious human rights abuses occur during purported public emergencies.40 It is therefore important that derogations are strictly monitored, and do not operate as a shield for the ‘cynical and calculated destruction of the rights’ of government opponents.41 [26.52] Few OP cases have concerned derogations. While a number of cases have concerned ‘emergency measures’, States Parties have rarely invoked derogation as a justification for these measures.42 In 2001, the HRC issued General Comment 28, which shed considerable light on the meaning of article 4, and is therefore extensively excerpted below. Unfortunately, it was issued a few months before the extraordinary terrorist attack on the United States on 11 September, and thus makes no mention of some of the extraordinary measures taken by States in the wake of that attack. The commentary below is also supplemented by reference to standards which have emerged from expert symposia on human rights derogations, namely the Siracusa Principles43 and the Paris Standards.44 Whilst the HRC See D McGoldrick, The Human Rights Committee (Clarendon Press, 1994), 301. PR Ghandhi, ‘The Human Rights Committee and Derogation in Public Emergencies’ (1989) 32 German Yearbook of International Law 323 at 323. 42 For example, the right of derogation was not mentioned in Polay Campos v Peru (577/94) [14.101], which concerned special measures for the trial of alleged terrorists. 43 ‘Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR’ (1985) 7 HRQ 1, hereafter ‘Siracusa Principles’. These principles were formulated at a conference in Sicily attended by 31 distinguished international law experts. 44 ‘Paris Minimum Standards of Human Rights Norms in a State of Emergency’ (1985) 79 AJIL 1072, hereafter ‘Paris Standards’. The ‘Paris Standards’ were adopted by the International Law Association in 1984. 40 41

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is not bound to follow these principles, it could be expected to be influenced by them in its future interpretation of article 4. SUBSTANTIVE LIMITS TO THE POWER OF DEROGATION

Public Emergency Threatening the Life of the Nation [26.53] The circumstances of derogation are strictly prescribed. First, there must exist a ‘public emergency which threatens the life of the nation’, such as a war, a terrorist emergency, or a severe natural disaster, such as a major flood or earthquake. [26.54] It appears that the actual emergency can be geographically limited, as in the case of the UK terrorist emergency in Northern Ireland. Such emergencies can still threaten people throughout the entire nation.45 It is, however, unconfirmed whether article 4(1) encompasses emergencies with limited geographic impact, such as localized floods. Siracusa Principle 39 indicates that the whole population must be affected by the emergency.46 The Paris Standards, however, state the following: PARIS STANDARDS (A) 1(b). The expression ‘public emergency’ means an exceptional situation of crisis or public danger, actual or imminent, which affects the whole population or the whole population of the area to which the declaration applies and constitutes a threat to the organised life of the community of which the state is composed. . . . (A) 4. The declaration of a state of emergency may cover the entire territory of the state or any part thereof, depending upon the areas actually affected by the circumstances motivating the declaration. This will not prevent the extension of emergency measures to other parts of the country whenever necessary nor the exclusion of those parts where such circumstances no longer prevail.

It is submitted that emergencies with severe yet geographically limited impact should still give States rights to make appropriate derogations. Otherwise, States with large territories such as the Russian Federation or Canada would be prejudiced in this respect. [26.55] Siracusa Principle 41 states that ‘economic difficulties per se cannot justify derogation measures’. Public emergencies are inherently extraordinary situations, whereas economic underdevelopment is unfortunately a commonplace situation in many States. Requirement of Proportionality [26.56] Permissible derogation measures must limit ICCPR rights only ‘to the extent strictly required’, which incorporates a principle of proportionality into the determination of the validity of a derogation. 45 M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005), 91. Indeed, one may note that numerous terrorist attacks occurred on the UK mainland. 46 See also Ghandhi, ‘The Human Rights Committee and Derogation in Public Emergencies’, 336.

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¶4. A fundamental requirement for any measures derogating from the Covenant, as set forth in article 4, paragraph 1, is that such measures are limited to the extent strictly required by the exigencies of the situation. This requirement relates to the duration, geographical coverage and material scope of the state of emergency and any measures of derogation resorted to because of the emergency. Derogation from some Covenant obligations in emergency situations is clearly distinct from restrictions or limitations allowed even in normal times under several provisions of the Covenant. Nevertheless, the obligation to limit any derogations to those strictly required by the exigencies of the situation reflects the principle of proportionality which is common to derogation and limitation powers. Moreover, the mere fact that a permissible derogation from a specific provision may, of itself, be justified by the exigencies of the situation does not obviate the requirement that specific measures taken pursuant to the derogation must also be shown to be required by the exigencies of the situation. In practice, this will ensure that no provision of the Covenant, however validly derogated from will be entirely inapplicable to the behaviour of a State party. When considering States parties’ reports the Committee has expressed its concern over insufficient attention being paid to the principle of proportionality. ¶5. The issues of when rights can be derogated from, and to what extent, cannot be separated from the provision in article 4, paragraph 1, of the Covenant according to which any measures derogating from a State party’s obligations under the Covenant must be limited ‘to the extent strictly required by the exigencies of the situation’. This condition requires that States parties provide careful justification not only for their decision to proclaim a state of emergency but also for any specific measures based on such a proclamation. If States purport to invoke the right to derogate from the Covenant during, for instance, a natural catastrophe, a mass demonstration including instances of violence, or a major industrial accident, they must be able to justify not only that such a situation constitutes a threat to the life of the nation, but also that all their measures derogating from the Covenant are strictly required by the exigencies of the situation. In the opinion of the Committee, the possibility of restricting certain Covenant rights under the terms of, for instance, freedom of movement (article 12) or freedom of assembly (article 21) is generally sufficient during such situations and no derogation from the provisions in question would be justified by the exigencies of the situation. ¶6. The fact that some of the provisions of the Covenant have been listed in article 4 (paragraph 2), as not being subject to derogation does not mean that other articles in the Covenant may be subjected to derogations at will, even where a threat to the life of the nation exists. The legal obligation to narrow down all derogations to those strictly required by the exigencies of the situation establishes both for States parties and for the Committee a duty to conduct a careful analysis under each article of the Covenant based on an objective assessment of the actual situation.

[26.57] Given the fairly broad permissible limits to most Covenant rights, such as enumerated qualifications to article 12 or 19, or the tolerability of non-arbitrary prohibitions on the right to privacy in article 17, or the reasonable limits permitted to the right of political participation in article 25 and the right of non-discrimination in article 26, it is difficult to see how measures beyond those allowable limits would ever satisfy a strict test of proportionality, even in the most serious emergency. For example, how could it ever be proportionate to require restrictions on

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freedom of movement beyond those permitted under article 12(3), ie, those ‘necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others’? Similarly, it is not easy to envisage how ‘arbitrary’ interferences with privacy (a breach of article 17(1)) could ever be deemed proportionate considering that the evaluation of whether a measure is ‘arbitrary’ involves application of a test of proportionality.47 [26.58]

SIRACUSA PRINCIPLES

54. The principle of strict necessity shall be applied in an objective manner. Each measure shall be directed to an actual, clear, present, or imminent danger and may not be imposed merely because of an apprehension of potential danger.

Principle 54 is controversial, as it purports to prohibit derogations designed to diminish perceived future threats. Many such clampdowns are indeed disproportionate, as they may simply constitute clampdowns by oppressive governments of legitimate political opposition,48 or gross overreactions to perceived subversive elements. However, a question must arise as to how ‘imminent’ a danger must be before derogations are permitted, as it is arguably best to prevent the occurrence of a public emergency, rather than to ‘cure’ a public emergency after it has erupted. General Comment 29 does not address this issue. [26.59] In General Comment 5, the HRC stated that ‘measures taken under article 4 are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened’.49 In General Comment 29, the HRC reiterated that ‘[m]easures derogating from the provisions of the Covenant must be of an exceptional and temporary nature’.50 Furthermore, ‘[t]he restoration of a state of normalcy where full respect for the Covenant can again be secured must be the predominant objective of a State party derogating from the Covenant’.51 Emergency measures must therefore be terminated upon cessation of the relevant crisis. Unfortunately, in many States, emergency measures have ‘become a way of deferring normality, [or] rather, they often become normality’,52 and have remained in place for many years and even decades. Conformity with International Law [26.60] Article 4 explicitly denies authority to derogate from other international law measures. This rule is expressed more generally in article 5 ICCPR.

47 S Joseph, ‘Human Rights Committee: General Comment 29’ (2002) 2 Human Rights Law Review 81 at 97. See Toonen v Australia (488/92), para 8.3 [16.50], and General Comment 16 (on art 17), para 4 [16.10]. 48 Such clampdowns were evinced on the facts of numerous early Optional Protocol cases against Uruguay. 49 50 General Comment 5, para 3. At para 2. 51 At para 1. 52 S Marks, ‘Civil Liberties at the Margin: The UK Derogation and the European Court of Human Rights’ (1995) 15 Oxford Journal of Legal Studies 69 at 86.

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¶9. Furthermore, article 4, paragraph 1, requires that no measure derogating from the provisions of the Covenant may be inconsistent with the State party’s other obligations under international law, particularly the rules of international humanitarian law. Article 4 of the Covenant cannot be read as justification for derogation from the Covenant if such derogation would entail a breach of the State’s other international obligations, whether based on treaty or general international law. This is reflected also in article 5, paragraph 2, of the Covenant according to which there shall be no restriction upon or derogation from any fundamental rights recognized in other instruments on the pretext that the Covenant does not recognize such rights or that it recognizes them to a lesser extent. ¶10. Although it is not the function of the Human Rights Committee to review the conduct of a State party under other treaties, in exercising its functions under the Covenant the Committee has the competence to take a State party’s other international obligations into account when it considers whether the Covenant allows the State party to derogate from specific provisions of the Covenant. Therefore, when invoking article 4, paragraph 1, or when reporting under article 40 on the legal framework related to emergencies, States parties should present information on their other international obligations relevant for the protection of the rights in question, in particular those obligations that are applicable in times of emergency. In this respect, States parties should duly take into account the developments within international law as to human rights standards applicable in emergency situations.

[26.61] In a footnote to the above paragraph, the HRC notes several relevant ‘other international laws’,53 including the Convention on the Rights of the Child (CRC), which has been ratified by almost every State. Article 38 of the CRC makes clear that it applies in emergency situations. As the rights in the CRC overlap substantially with those in article 24 of the ICCPR, derogations from article 24 are probably no longer authorized by article 4 for the vast majority of States Parties to the ICCPR, even though article 24 is not listed as a non-derogable right in article 4(2).54 Non-discrimination in Derogation Measures [26.62]

GENERAL COMMENT 28

¶8. . . . Even though article 26 or the other Covenant provisions related to non-discrimination (articles 2, 3, 14, paragraph 1, 23, paragraph 4, 24, paragraph 1, and 25) have not been listed among the non-derogable provisions in article 4, paragraph 2, there are elements or dimensions of the right to non-discrimination that cannot be derogated from in any circumstances. In particular, this provision of article 4, paragraph 1, must be complied with if any distinctions between persons are made when resorting to measures that derogate from the Covenant.

[26.63] Derogation measures may not discriminate ‘solely’ on enumerated grounds. The enumerated grounds do not mirror the prohibited grounds of discrimination under the Covenant’s non-discrimination guarantees. For example, 53 Other relevant laws would be the Geneva Conventions and the other UN human rights treaties. See also Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 99. 54 Joseph, ‘Human Rights Committee: General Comment 29’, 89.

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article 4 discrimination seems prima facie permissible on the ground of national origin or political opinion; such discrimination indeed often occurs under emergency laws.55 Furthermore, the enumerated grounds appear to be exhaustive.56 Finally, Roslyn Higgins, now a former HRC member, has suggested that the use of the word ‘solely’ in the article 4 non-discrimination guarantee means that only deliberate discrimination rather than inadvertent discrimination, is prohibited.57 For example, geographically limited emergency measures could impact worse on a particular racial group; such indirect discrimination would not breach article 4(1).58 Non-derogable Rights [26.64] Article 4(2) specifies that certain rights may never be subject to derogation: the right to life (article 6); freedom from torture, cruel, inhuman, degrading treatment or punishment, and freedom from medical or scientific experimentation without consent (article 7); freedom from slavery (article 8(1)) or servitude (article 8(2)); the right not to be imprisoned for contractual debt (article 11); freedom from retroactive criminal punishment (article 15); right to recognition as a person before the law (article 16); and freedom of thought, conscience, and religion (article 18). Article 6 of the Second Optional Protocol prescribes that the prohibition on capital punishment is non-derogable for parties to that Protocol. [26.65]

GENERAL COMMENT 24

In its General Comment on Reservations, the HRC offered some observations on the nature of non-derogable rights: ¶10. . . . While there is no hierarchy of importance of rights under the Covenant, the operation of certain rights may not be suspended, even in times of national emergency. This underlines the great importance of non-derogable rights. But not all rights of profound importance, such as articles 9 and 27 of the Covenant, have in fact been made non-derogable. One reason for certain rights being made non-derogable is because their suspension is irrelevant to the legitimate control of the state of national emergency (for example, no imprisonment for debt, in article 11). Another reason is that derogation may indeed be impossible (as, for example, freedom of conscience). At the same time, some provisions are non-derogable exactly because without them there would be no rule of law. . . .

[26.66]

GENERAL COMMENT 28

¶7. . . . Conceptually, the qualification of a Covenant provision as a non-derogable one does not mean that no limitations or restrictions would ever be justified. The reference in article 4, paragraph 2, to article 18, a provision that includes a specific clause on restrictions in its Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 99–100. Compare the general non-discrimination guarantees, discussed at [23.25]ff. 57 R Higgins, ‘Derogations Under Human Rights Treaties’ (1976–77) 48 BYIL 281 at 287. See also [23.09] and [23.39]ff. 58 T Buergenthal, ‘To Respect and to Ensure: State Obligations and Permissible Derogations’, in L Henkin (ed), The International Bill of Rights: The International Covenant on Civil and Political Rights (Columbia University Press, 1981), 83. 55 56

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paragraph 3, demonstrates that the permissibility of restrictions is independent of the issue of derogability. . . .

[26.67] In General Comment 29, the HRC has outlined further implicit nonderogable rights.59 GENERAL COMMENT 29 ¶11. The enumeration of non-derogable provisions in article 4 is related to, but not identical with, the question whether certain human rights obligations bear the nature of peremptory norms of international law. The proclamation of certain provisions of the Covenant as being of a non-derogable nature, in article 4, paragraph 2, is to be seen partly as recognition of the peremptory nature of some fundamental rights ensured in treaty form in the Covenant (e.g., articles 6 and 7). However, it is apparent that some other provisions of the Covenant were included in the list of non-derogable provisions because it can never become necessary to derogate from these rights during a state of emergency (e.g., articles 11 and 18). Furthermore, the category of peremptory norms extends beyond the list of non-derogable provisions as given in article 4, paragraph 2. States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence.60 ¶12. In assessing the scope of legitimate derogation from the Covenant, one criterion can be found in the definition of certain human rights violations as crimes against humanity. If action conducted under the authority of a State constitutes a basis for individual criminal responsibility for a crime against humanity by the persons involved in that action, article 4 of the Covenant cannot be used as justification that a state of emergency exempted the State in question from its responsibility in relation to the same conduct. Therefore, the recent codification of crimes against humanity, for jurisdictional purposes, in the Rome Statute of the International Criminal Court is of relevance in the interpretation of article 4 of the Covenant. ¶13. In those provisions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in the Committee’s opinion cannot be made subject to lawful derogation under article 4. Some illustrative examples are presented below. (a) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Although this right, prescribed in article 10 of the Covenant, is not separately mentioned in the list of non-derogable rights in article 4, paragraph 2, the Committee believes that here the Covenant expresses a norm of general international law not subject to derogation. This is supported by the reference to the inherent dignity of the human person in the preamble to the Covenant and by the close connection between articles 7 and 10. (b) The prohibitions against taking of hostages, abductions or unacknowledged detention are not subject to derogation. The absolute nature of these prohibitions, even in times of emergency, is justified by their status as norms of general international law. 59 60

See generally Joseph, ‘Human Rights Committee: General Comment 29’, 91–5. See also General Comment 32, para 6.

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(c) The Committee is of the opinion that the international protection of the rights of persons belonging to minorities includes elements that must be respected in all circumstances. This is reflected in the prohibition against genocide in international law, in the inclusion of a non-discrimination clause in article 4 itself (paragraph 1), as well as in the non-derogable nature of article 18. (d) As confirmed by the Rome Statute of the International Criminal Court, deportation or forcible transfer of population without grounds permitted under international law, in the form of forced displacement by expulsion or other coercive means from the area in which the persons concerned are lawfully present, constitutes a crime against humanity. The legitimate right to derogate from article 12 of the Covenant during a state of emergency can never be accepted as justifying such measures. (e) No declaration of a state of emergency made pursuant to article 4, paragraph 1, may be invoked as justification for a State party to engage itself, contrary to article 20, in propaganda for war, or in advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence. ¶14. Article 2, paragraph 3, of the Covenant requires a State party to the Covenant to provide remedies for any violation of the provisions of the Covenant. This clause is not mentioned in the list of non-derogable provisions in article 4, paragraph 2, but it constitutes a treaty obligation inherent in the Covenant as a whole. Even if a State party, during a state of emergency, and to the extent that such measures are strictly required by the exigencies of the situation, may introduce adjustments to the practical functioning of its procedures governing judicial or other remedies, the State party must comply with the fundamental obligation, under article 2, paragraph 3, of the Covenant to provide a remedy that is effective.

[26.68] The HRC’s speculation in paragraphs 11–14 regarding possible further non-derogable elements of the Covenant is probably the most controversial aspect of the General Comment. It is here that the HRC appears to depart most markedly from the text of article 4. The apparent addition of further non-derogable rights is perhaps justified by the HRC’s professed authority to check whether derogation measures breach a State’s other international obligations, such as those peremptory norms protected by jus cogens or rights recognized under customary or general international law. It is also possible that the HRC is speculating that derogations from certain rights could, in its view, never be proportionate, so those rights are therefore effectively non-derogable.61 [26.69] The HRC repeated its assertion that article 10 is a non-derogable right in Giri v Nepal (1761/08).62 In General Comment 34, it stated that article 19(1), the right to freedom of opinion, could not be the subject of a derogation.63 [26.70]

GENERAL COMMENT 29

¶15. It is inherent in the protection of rights explicitly recognized as non-derogable in article 4, paragraph 2, that they must be secured by procedural guarantees, including, often, judicial guarantees. The provisions of the Covenant relating to procedural safeguards may 61 62

Joseph, ‘Human Rights Committee: General Comment 29’, 91. At para 7.9.

63

At para 5.

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never be made subject to measures that would circumvent the protection of non-derogable rights. Article 4 may not be resorted to in a way that would result in derogation from non-derogable rights. Thus, for example, as article 6 of the Covenant is non-derogable in its entirety, any trial leading to the imposition of the death penalty during a state of emergency must conform to the provisions of the Covenant, including all the requirements of articles 14 and 15. ¶16. Safeguards related to derogation, as embodied in article 4 of the Covenant, are based on the principles of legality and the rule of law inherent in the Covenant as a whole. As certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations. The Committee is of the opinion that the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offence. The presumption of innocence must be respected. In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant.

[26.71] The purported addition in paragraphs 14–16 of certain rights to the list of non-derogable rights because they are effectively needed to guarantee the sanctity of the express non-derogable rights in article 4(2) is less controversial than the classification of further non-derogable rights per se.64 One may note, for example, that the derogation provision in the American Convention on Human Rights 1969, article 27, prohibits derogation from a number of enumerated rights, as well as ‘the judicial guarantees essential for the protection of such rights’.65 Similar ‘functional’ non-derogable rights66 have been cited in the Siracusa Principles67 and the Paris Standards.68 [26.72]

GENERAL COMMENT 32

This General Comment on article 14, the right to a fair trial, expanded upon the functional non-derogability of article 14: ¶6. . . . The guarantees of fair trial may never be made subject to measures of derogation that would circumvent the protection of non-derogable rights. Thus, for example, as article 6 of the Covenant is non-derogable in its entirety, any trial leading to the imposition of the

64 See generally Joseph, ‘Human Rights Committee: General Comment 29’, 94. See also Concluding Observations on Egypt (1993) UN doc CCPR/C/79/Add.23, para 9; Israel (1999) UN doc CCPR/C/79/ Add.93, para 21; Sri Lanka (1996) UN doc CCPR/C/79/Add.56, para 13. 65 See Inter-American Court of Human Rights, Habeas Corpus in Emergency Situations, Advisory Opinion OC-8/87, 30 January 1987, 11 EHRR 33, confirming that habeas corpus and the Latin American writ of amparo are examples of such ‘essential’ judicial safeguards. 66 See J Fitzpatrick, ‘Protection Against Abuse of the Concept of “Emergency”’, in L Henkin and JL Hargrove (eds), Human Rights: An Agenda for the Next Century (American Society of International Law, 1994), 203 at 218. See also A Svensson-McCarthy, The International Law of Human Rights and States of Exception (Martinus Nijhoff, 1998), 445–7, 580–1. 67 Principle 70; see also Principle 60. 68 Draft Arts 5, 7, and 16. The ‘Paris Standards’ propose further non-derogable rights in draft arts 10–16.

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death penalty during a state of emergency must conform to the provisions of the Covenant, including all the requirements of article 14. . . .

[26.73] In Concluding Observations on Albania, the HRC has stated:69 ¶9. The Committee notes with concern the State party’s interpretation of possible derogations from articles 9, paragraph 4, and 10, paragraph 1, of the Covenant during a state of emergency (art. 4). In the light of the Committee’s general comment No. 29, the State party should ensure that, in order to protect non-derogable rights, the right to take proceedings before a court, in order that the court may decide without delay on the lawfulness of a detention, as well as the right of all persons deprived of their liberty be treated with humanity and with respect for the inherent dignity of the human person, must not be reduced by a derogation from Covenant provisions during the state of emergency. PROCEDURAL REQUIREMENTS FOR ARTICLE 4

[26.74] Article 4(1) requires that derogation measures be prescribed for public emergencies that are ‘officially proclaimed’. In General Comment 29, the HRC stated that this ‘requirement is essential for the maintenance of the principles of legality and rule of law at times when they are most needed. When proclaiming a state of emergency with consequences that could entail derogation from any provision of the Covenant, States must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers’.70 Therefore, States must invoke a domestic procedure to inform their population of the existence of a relevant emergency. The HRC has confirmed in Concluding Observations that laws governing conditions of states of emergency should be clear and precise.71 This requirement mirrors the general requirement for permissible limitations to ICCPR rights to be ‘prescribed by law’.72 [26.75] Article 4(3) requires States Parties to inform the United Nations of any relevant derogations and the revocation of such derogations. Whereas article 4(1) imposes procedural ‘notice’ requirements in municipal law, article 4(3) imposes notice requirements at the international level. It must be noted that article 4(3) imposes no express obligation to inform the Committee of relevant derogations, though it can be presumed that the UN Secretary-General would transmit the relevant information to the HRC. [26.76]

GENERAL COMMENT 29

¶17. In paragraph 3 of article 4, States parties, when they resort to their power of derogation under article 4, commit themselves to a regime of international notification. A State party availing itself of the right of derogation must immediately inform the other States parties, 69

70 (2004) UN doc CCPR/CO/82/ALB. At para 2. Concluding Observations on Azerbaijan (1994) UN doc CCPR/C/79/Add.38, para 7; Nepal (1995) UN doc CCPR/C/79/Add.42, para 9; Zambia (1996) UN doc CCPR/C/79/Add.62, para 11; Morocco (2004) UN doc CCPR/CO/82/MAR, para 10. 72 See eg [16.06]ff and, more generally, [1.83] for discussion of the ‘prescribed by law’ requirement. 71

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through the United Nations Secretary-General, of the provisions it has derogated from and of the reasons for such measures. Such notification is essential not only for the discharge of the Committee’s functions, in particular in assessing whether the measures taken by the State party were strictly required by the exigencies of the situation, but also to permit other States parties to monitor compliance with the provisions of the Covenant. In view of the summary character of many of the notifications received in the past, the Committee emphasizes that the notification by States parties should include full information about the measures taken and a clear explanation of the reasons for them, with full documentation attached regarding their law. Additional notifications are required if the State party subsequently takes further measures under article 4, for instance by extending the duration of a state of emergency. The requirement of immediate notification applies equally in relation to the termination of derogation. These obligations have not always been respected: States parties have failed to notify other States parties, through the Secretary-General, of a proclamation of a state of emergency and of the resulting measures of derogation from one or more provisions of the Covenant, and States parties have sometimes neglected to submit a notification of territorial or other changes in the exercise of their emergency powers. Sometimes, the existence of a state of emergency and the question of whether a State party has derogated from provisions of the Covenant have come to the attention of the Committee only incidentally, in the course of the consideration of a State party’s report. The Committee emphasizes the obligation of immediate international notification whenever a State party takes measures derogating from its obligations under the Covenant. The duty of the Committee to monitor the law and practice of a State party for compliance with article 4 does not depend on whether that State party has submitted a notification.

[26.77] Very few, if any, notices of derogation submitted under the ICCPR so far would satisfy the article 4(3) requirements identified above by the HRC. This may indicate that the HRC’s interpretation of article 4(3) is too strict. However, it is submitted that it simply confirms the inferior quality of extant notices of derogation. Most have been only a few lines long, containing little explanation of the exact nature of the measures of derogation.73 [26.78]

LANDINELLI SILVA v URUGUAY (34/78)

This case demonstrates the interplay between the substantive and procedural elements of article 4.74 The author complained of numerous ICCPR breaches. In response, the State Party invoked its right of derogation. The HRC decided against the State Party in the following terms: ¶8.1. Although the Government of Uruguay . . . has invoked article 4 of the Covenant in order to justify the ban imposed on the authors of the communication, the Human Rights Committee feels unable to accept that the requirements set forth in article 4 (1) of the Covenant have been met. ¶8.2. According to article 4 (1) of the Covenant, the States parties may take measures derogating from their obligations under that instrument in a situation of public emergency which threatens the life of the nation and the existence of which has been formally proclaimed. 73 Joseph, ‘Human Rights Committee: General Comment 29’, 96; see Concluding Observations on Syria (2005) UN doc CCPR/CO/84/SYR, para 6. See also ‘Siracusa Principles’ 45. 74 See also Salgar de Montejo v Colombia (64/79), para 10.3.

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Even in such circumstances, derogations are only permissible to the extent strictly required by the exigencies of the situation. In its note of 28 June 1979 to the Secretary-General of the United Nations (reproduced in document CCPR/C/2/Add. 3, p. 4), which was designed to comply with the formal requirements laid down in article 4 (3) of the Covenant, the Government of Uruguay has made reference to an emergency situation in the country which was legally acknowledged in a number of ‘Institutional Acts’. However, no factual details were given at that time. The note confined itself to stating that the existence of the emergency situation was ‘a matter of universal knowledge’; no attempt was made to indicate the nature and the scope of the derogations actually resorted to with regard to the rights guaranteed by the Covenant, or to show that such derogations were strictly necessary. Instead, the Government of Uruguay declared that more information would be provided in connection with the submission of the country’s report under article 40 of the Covenant. To date neither has this report been received, nor the information by which it was to be supplemented. ¶8.3. Although the sovereign right of a State party to declare a state of emergency is not questioned, yet, in the specific context of the present communication, the Human Rights Committee is of the opinion that a State, by merely invoking the existence of exceptional circumstances, cannot evade the obligations which it has undertaken by ratifying the Covenant. Although the substantive right to take derogatory measures may not depend on a formal notification being made pursuant to article 4(3) of the Covenant, the State party concerned is duty-bound to give a sufficiently detailed account of the relevant facts when it invokes article 4(1) of the Covenant in proceedings under the Optional Protocol. It is the function of the Human Rights Committee, acting under the Optional Protocol, to see to it that States parties live up to their commitments under the Covenant. In order to discharge this function and to assess whether a situation of the kind described in article 4(1) of the Covenant exists in the country concerned, it needs full and comprehensive information. If the respondent Government does not furnish the required justification itself, as it is required to do under article 4(2) of the Optional Protocol and article 4(3) of the Covenant, the Human Rights Committee cannot conclude that valid reasons exist to legitimise a departure from the normal legal regime prescribed by the Covenant.

Thus, a State’s failure to comply with article 4 procedural obligations will not deprive it of its substantive rights of derogation. Indeed, in early cases, the HRC ex officio considered the possibility of an article 4 defence in the absence of a State’s specific reliance thereon.75 By the time of Aber v Algeria (1439/05), decided in 2007, the HRC seemed to have ceased this practice. It made no mention of the possibility of derogation in a case involving Algerian emergency legislation, in which Algeria raised no argument regarding a possible derogation.76 In any case, a State’s continued failure to provide relevant facts regarding its purported derogation, such as details of the nature and exigencies of the relevant public emergency, means that the State will fail to discharge its burden of proof in justifying those derogations, and will thus be denied any substantive article 4 defence of its actions. 75 See eg in Weismann and Lanza Perdomo v Uruguay (8/77), para 15; Torres Ramírez v Uruguay (4/77), para 17; and Pietraroia v Uruguay (44/79), para 14. See also Ghandhi, ‘The Human Rights Committee and Derogation in Public Emergencies’, 334–6, and McGoldrick, The Human Rights Committee, 311. 76 See also Polay Campos v Peru (577/94).

922

The ICCPR

BURDEN OF PROOF AND HRC’S SUPERVISORY ROLE

[26.79] Landinelli Silva and numerous similar Uruguayan cases confirm that the State bears the burden of proof in justifying purported derogations. In those cases, it was clear that the State Party failed to discharge this burden. It is uncertain how the HRC will react should a State Party make a bona fide attempt to justify its derogations, as this has never occurred in an Optional Protocol case. The European Court of Human Rights, in monitoring derogations under article 15 of the European Convention on Human Rights 1950, has stated that States Parties have a wide ‘margin of appreciation’ in deciding on the existence of and proper response to an emergency,77 which essentially gives States a strong benefit of the doubt in this regard,78 substantially easing their burden of proof. In contrast, the HRC in General Comment 28 indicates that it will scrutinize a State’s justifications for derogation carefully, in view of the propensity of many States to abuse their power during states of emergency.79 This is particularly evident in the General Comment’s paragraphs on proportionality [26.56].80 CONCLUSION

[26.80] In General Comment 29, the HRC indicates that the right of derogation is in fact very narrow.81 For example, the HRC suggests a de facto expansion of the non-derogable elements of the Covenant. The HRC also confirms that the measures taken to deal with a public emergency must be strictly proportionate to the danger posed, and must be repealed or pared back if that strict proportionality should subside. Though less controversial than the Comment’s purported expansion of non-derogable rights, a strict test of proportionality poses the greater threat to the viability of meaningful substantive rights of derogation for States Parties. As noted above, it is difficult to imagine a situation where limits beyond those permitted under the ICCPR’s qualified rights would be required to cope with a public emergency [26.57]. Perhaps the only truly derogable rights are those expressed to be of an absolute nature, such as article 9(3) (which guarantees the prompt appearance by a person detained on a criminal charge before a judge).82 It may be noted that many of the Covenant’s absolute rights are explicitly non-derogable (ie, articles 7, 8(1), 8(2), 11, 15, and 16). Further, the States’ escape hatch of derogation in this respect has been further shut by the HRC’s classification of 77 See Brannigan and McBride v United Kingdom, Series A, No 258-B, reported in (1994) 17 EHRR 539, para 43. 78 See T Jones, ‘The Devaluation of Human Rights under the European Convention’ [1995] Public Law 430 at 430–1. 79 See also concurring judgment of Judge Martens in Brannigan and McBride v United Kingdom (1994) 17 EHRR 539. Also see ‘Paris Standards’ A7. See also discussion of the margin of appreciation doctrine at [18.69]. 80 See also Joseph, ‘Human Rights Committee: General Comment 29’, 86. 81 Joseph, ‘Human Rights Committee: General Comment 29’, 97–8. 82 The equivalent right in the European Convention, art 5(3), was found to be limited in its application to the United Kingdom by a valid derogation in Brannigan and McBride v United Kingdom (1994) 17 EHRR 539.

Reservations, Denunciations, Succession, and Derogations

923

the absolute rights in articles 10(1) and 20 as non-derogable. The HRC has also confirmed that the notice requirements under article 4(3) are very strict, so much so that very few notices of derogation thus far submitted comply. [26.81] Finally, it must be remembered that states of emergency have all too often acted as veils for gross abuses of human rights. It is hoped that the HRC adopts a vigilant supervisory role in assessing all derogation measures, as promised in the General Comment, in order to help guard against overly oppressive emergency measures. This role has become more crucial during the ongoing ‘war on terror’.

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Index aboriginal peoples see minorities, rights of abortion children, protection of 8.94, 21.13 contraception as a means of 8.95 cultural relativism 1.131 forced 9.57 health, danger to woman’s 8.94–8.95 last resort, as 8.97 life, right to 8.90–8.95, 8.104 privacy, right of 16.53, 16.54–16.56 rape, pregnancy resulting from 8.94, 9.57 remedy, right to 25.20 torture 9.57 unborn children 3.37 access to courts appeals 14.47 causes of action, determination of 14.45–14.46 ‘in certain circumstances’ 14.45 civil proceedings 14.36 appeals 14.47 discontinuance of 14.42 gravity of proceedings 14.36 constitutional motions, legal aid for 14.34, 14.36 costs 14.37–14.41 criminal cases 14.29, 14.38, 14.46, 14.47 damages, right to seek 14.43 death row, whilst on 14.34 effective remedy, right to an 14.43 equality before the courts 14.30, 14.31, 14.35 exhaustion of domestic remedies 6.29, 6.30 fees 14.37–14.41 First Optional Protocol 14.46 generally 14.29–14.47 guarantee of 14.33 habeas corpus 11.72 legal aid 14.33–14.36 costs 14.37

criminal cases 14.33 death row prisoners, availability of 14.14.34 minority rights 14.39 married women 14.32 matrimonial property 14.32 migrant workers 14.29 minority rights 14.39 nationality 14.29 non-discrimination14.29 recognition as a person before the law, right of 10.19 substantive rights of 14.43–14.47 suit at law 14.29 accused absentia, convicted in 14.141 charge, right to be informed of 14.113 delay, trials without undue 14.129 fair trials 14.141–14.168 juveniles, rights of 14.183–14.186 legal aid 14.152 legal representation, right to 14.126, 14.145 presumption of innocence 14.105 notification of date and time of trial 14.141 represent oneself, right to 14.85 segregation from convicted persons 9.232–9.236 adjournments 14.118, 14.120 administrative proceedings 14.07, 14.09 see also suit at law admissibility of complaints under the ICCPR another international procedure, consideration under 5.01–5.14 exhaustion of domestic remedies 6.01–6.49 First Optional Protocol, individual communications under 1.48–1.55 ratione temporis rule 2.01–2.23 territorial and jurisdictional limits 4.01–4.41 victim requirement 3.01–3.49

926

Index

adoption of children abroad, transfer of children 21.28 family, protection of the 20.10 kidnapping for illegal 21.51 affirmative action see also reverse discrimination generally 23.83–23.86 proportionality 23.90 reasonable and objective test 23.90 reverse discrimination, distinguished 23.83, 23.87–23.94 age consent, of 21.22, 21.42 criminal responsibility, of 14.183, 21.20 death penalty 8.65, 8.66 elections 22.41 juvenile accused 14.183 majority, of 21.19–21.22 marriageable 20.51, 20.52, 21.22 non-discrimination 23.62–23.64, 23.100 retirement 23.62 voting 22.25 Age of Enlightenment 1.03 agrarian reform 24.41 AIDS/HIV 3.48, 8.39, 8.82, 16.23, 16.26, 16.50, 23.31 aliens see also asylum seekers country, right to enter one’s own 12.34, 12.36, 12.39–12.43 detention 11.24–11.29, 11.88, 11.106 deportation of family members 9.62, 20.24, 20.25 domestic service 10.10 extradition, expulsion and refoulement 11.88, 12.39–12.43, 13.01–13.26 family and home, right to respect for 16.19, 16.22 freedom of movement 12.12–12.16 lesser rights 12.14–12.16 illegal immigrants 13.09 lawfully within a particular state, those 13.09 ‘lawfully within the territory of a State’ 12.12, 12.13 married to nationals, residential status of 16.24 national security 12.14, 13.19–13.25 nationals and, distinguishing between 12.36 public order 12,14 residence 12.12, 13.02, 16.24 slavery, servitude and forced labour, freedom from 10.10 self-determination 7.05 subjugation 7.05 territory of a state, within the 12.12–12.14 terrorist suspects 12.14

American Convention on Human Rights 1.11, 5.06, 26.71 amnesties remedies 25.24–25.27 torture, freedom from 9.183–9.187 another international procedure, consideration under admissibility of complaints under ICCPR 5.01–5.14 ‘another international procedure’, meaning of 5.03–5.06 Committee against Torture 5.06 concurrent consideration of matter 5.01 European Commission on Human Rights 5.01, 5.07, 5.09, 5.10–5.11 European Convention on Human Rights 5.06, 5.10, 5.13–5.16 appeals body from, Human Rights Committee as 5.08 European Court of Human Rights 5.09, 5.10–5.13 European parties, reservations by 5.08–5.14 forum shopping 5.02 generally 5.01–5.14 Human Rights Committee 5.01–5.14 Inter-American Commission on Human Rights 5.03, 5.05 inter-governmental organizations 5.03 international human rights bodies, comparable 5.01, 5.03, 5.14 merits decisions, following conclusion of 5.02 non-governmental organizations 5.03 prior consideration by other body 5.01–5.02 procedural admissibility 5.10, 5.12 ‘procedures of international investigation or settlement’, meaning of 5.06 regional human rights bodies 5.03 reservations by European parties 5.08–5.13 ‘same matter’, meaning of 5.07 substantive admissibility 5.10, 5.11 UN treaty bodies 5.06 anti-semitism 1.136, 17.09, 18.75, 18.90–18.94 apartheid 22.06 apostasy 1.131 appeals see also appeals in criminal cases access to courts 14.29 civil cases 14.89 delay, trials without undue 14.129 exhaustion of domestic remedies 6.04, 6.12, 6.17, 6.25 extradition, expulsion or refoulement 13.12–13.13, 13.16–13.18 fair trials 14.62

Index independent, impartial and competent tribunals 14.48 legal aid 14.157, 14.158 legal representation 14.157, 14.161 none available 6.04 opinions, reasoned 14.89 precedent, contrary 6.25 public hearings 14.97 appeals in criminal cases access to 14.187, 14.190 ‘according to law’ 14.187, 14.190 acquittals 14.198, 14.199 automatic right of 14.192 compatibility of systems 14.192 conduct of, orally or in writing 14.191 convictions 14.187, 14.188, 14.189 de novo hearing, no right to 14.187, 14.188 defences, review of 14.190 delay, without undue 14.202 documentation, access to 14.14.194–14.196 economic relativism 1.123 evidence, admissibility of new 14.188 facts re-evaluation of 14.188–14.189 fair hearing 14.187 generally 14.187–14.203 judgments, access to 14.194–14.196 judicial review 14.188 law, review of questions of 14.188–14.189 leave to appeal 14.192, 14.197 legal representation 14.201 miscarriages of justice 14.204–14.209 multiple appeals 14.193 reasons for refusal 14.197 representation, right to competent 14.201 requirements 14.188 retrials 14.187 sentence, against 14.187, 14.188, 14.189, 14.190 serious offences, convictions for 14.187 tribunals 14.187 waiver of 14.200 writing, conduct in 14.191 arbitrary detention, freedom from see criminal charge, right to be informed of; criminal charges, rights of persons detained on; detention; habeas corpus; liberty, right to armed conflict see war and armed conflict armed forces see military service arrest arbitrary 11.01, 11.11–11.15 compensation 11.102 country, freedom to leave a 12.22 delay, trials without undue 14.129–14.140

927

extradition, expulsion or refoulement 13.03 habeas corpus 11.70 house arrest 12.03 interpreters 11.50–11.51 killed by the state, right not to be 8.02–8.05 liberty, right to 11.01, 11.12–11.14, 11.17, 11.23 reasons for 11.25–11.29, 11.30, 14.113 security measures 11.30 unlawful 11.11–11.14 artistic expression 18.08, 18.10 assassination by the state 8.06, 8.15, 8.17, 8.18 assembly, freedom of absolute right, not an 19.01, 19.05, 19.07 affrays 19.05 ‘assembly’ meaning of 19.02–19.04 more than one person 19.03 case law, lack of 19.01, 19.36 civil disobedience 19.05 coverage of 19.01 crowd control 19.05 demonstrations 19.08 expression, freedom of 18.03, 18.11 generally 19.01–19.12 importance of 19.01 ‘in conformity with the law’, restrictions must be 19.06, 19.07, 19.08 limits to generally 19.01, 19.05–19.06 ‘necessary in a democratic society’ 19.06 ‘conformity with the law, in’ 19.06, 19.07, 19.08 proportionality 19.06 meaning of 19.02–19.04 mobile assemblies 19.04 national security 19.07, 19.12 notification, prior 19.06, 19.08–19.11 peaceful assemblies 19.05, 19.07 police, training of 19.05 private assemblies 19.02 proportionality, requirement of 19.06 public meetings without permit 19.08–19.12 public order 19.07, 19.09–19.12 public safety, health or morals 19.07 religious assemblies 19.02 riots 19.05 stationary assemblies 19.04 violent assemblies 19.05 assisted suicide 8.96 association, freedom of armed forces 19.15 associate, freedom not to commercial organizations 19.34 compulsory membership schemes 19.34

928

Index

association, freedom of (Cont.) generally 19.31–19.35, 19.36 Parliamentary Press Gallery, exclusion from 19.31 political parties, exclusion from 19.33 trade union membership, compulsory 19.28 ‘association’, meaning of 19.13 closed shop 19.35 coverage of 19.01 elections, relationship to 22.56 examples of 19.13 families 19.13 fascist party 18.33, 19.14 funding 19.19 generally 19.01, 19.13–19.35 ILO Conventions 19.21, 19.23–19.26 International Covenant on Economic, Social and Cultural Rights 19.23–19.26, 19.29 freedom to join 19.28 jurisprudence on, lack of 19.36 limits to 19.14–19.19 ‘lawful’ 19.15 minimum impairment test 19.16 ‘necessary in a democratic society’ 19.14, 19.17 prescribed by law 19.15 proportionality 19.14, 19.14 meaning of association 19.13 military services 19.15 national security 19.16 non-governmental organizations 19.13 foreign funding 19.19 registration requirements 19.18 police 19.15 political parties 18.33, 19.13 armed forces 19.15 bans on 18.07, 19.14 exclusion from 19.33 military service 19.15 police 19.15 private associations 19.13 procedural formalities for recognition 19.17, 19.18 professional clubs 19.13 proportionality, requirement of 19.14, 19.15 public order 19.16 registration procedures 19.17, 19.18 restrictions on, lawful 19.15 sporting clubs 19.13 strike, right to 19.23–19.26 trade unions 19.13, 19.20–19.30, 19.36 compulsory membership of 19.35 foreign workers 19.22

protecting rights of others 19.35 registration requirements 19.17, 19.18 asylum seekers see also refugees automatic expulsion of seekers 9.120 boat people 11.24, 11.91–11.92 children, protection of 21.09, 21.10, 21.12 detention 11.24–11.29 conditions of 9.124, 9.131 mental illness 9.73 extradition, expulsion or refoulement 9.116–9.120, 13.08, 13.09 family unity, protection of 20.2, 20.23 freedom of movement 12.15 habeas corpus 11.85–11.86, 11.88, 11.91–11.92 illegal entrants 13.09 liberty, right to 11.24–11.29 movement, freedom of 12.15 refoulement 9.116–9.120 representation, right to 13.18 territorial and jurisdictional limits of the ICCPR 4.15 terrorists, suspected 13.10 torture 9.116–9.120 atheism 17.02, 17.12, 17.51 attorney, powers of 3.26 autocracies 22.13 bail 3.06, 11.18, 11.64–11.69, 14.105 banishment 2.17, 9.125, 9.195, 12.04 Beijing Rules 9.237 bigamy 20.46 bills of rights 1.05, 1.26, 1.120, 25.10 blasphemy 18.67 bonded labour 10.09, 21.47 burden of proof camera, hearings in 14.104 civil proceedings 14.87 delay, trials without undue 14.133 derogations 26.79 exhaustion of domestic remedies 6.44–6.48 innocence, presumption of 14.105 life, right to 8.12 military tribunal, reason for 14.57 non-discrimination 23.130 Optional Protocol cases 14.133 reverse 14.106 self-incrimination 14.179 camera, hearings in 14.104 capital punishment see death penalty CAT see Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Index CAT Committee see Committee Against Torture cattle grazing 24.18, 24.25–24.26 CEDAW see Convention on the Elimination of All Forms of Discrimination Against Women censorship correspondence, interference with 9.221, 16.31–16.35 detention, conditions of 9.221 expression, freedom of 18.15, 18.18, 18.68 hate speech 18.72 political parties, media influence on 22.56 prisoners 16.32 privacy, right of 16.08 CERD see Committee on the Elimination of Racial Discrimination child exploitation see also children, protection of; Convention on the Rights of the Child abandoned children 21.44, 21.58 abduction 21.31–21.33, 21.55 abuse 21.41 adoption, kidnapping for illegal 21.51 age of consent 21.42 armed forces, children in 21.52–21.54 child labour 21.47 child soldiers 21.52–21.54 debt bondage 10.09 domestic service 21.42 drug trafficking 21.15 education, denial of 21.47 employment, basic conditions of 21.47 generally 21.40–21.54 guardianship 21.51 health, diminution of 21.47 incest 21.42 kidnapping 21.51 military service 21.52–21.54 Optional Protocol to the Convention on the Rights of the Child 21.46 physical abuse 21.41 pornography 21.42, 21.43, 21.46 poverty 21.44 prostitution 10.06, 10.08, 21.15, 21.42, 21.46 sale of children 21.46, 21.50, 21.55 sex tourism 21.45 sexual exploitation 21.41–21.46 slavery, servitude and forced labour, freedom from 10.06, 10.08, 21.16 street children 21.44 trafficking in children 10.11, 21.48–21.49, 21.55

929

children, protection of see also child exploitation; Convention on the Rights of the Child; juvenile offenders abduction 21.31–21.33, 21.55 abortion 8.94, 21.13 access divorce 2008, 20.58–20.67 separation of parents 21.29–21.34 unmarried couples 20.06, 20.09 adoption abroad 21.28 kidnapping 21.51 age of criminal responsibility 21.20 age of majority 21.19–21.22 age of sexual consent 21.22, 21.42 alternative care 21.38–21.39 ancillary nature of 21.06–21.14, 21.48 apportionment of responsibility 21.26 asylum seekers 21.09, 21.10, 21.12 babies, victim requirement and 3.37 Beijing Rules 9.237 ‘best interests of the child’ 21.03, 21.10, 21.11, 21.31–21.32, 21.36, 21.48 birth certificates 21.57, 21.60 discrimination on the grounds of 21.59 female children 21.59 registration of, right to 21.55–21.60 care, children in 21.38–21.39 care, duty to provide 21.39 child benefit 20.05, 21.15, 23.79 child care facilities 21.27, 23.83 child labour 21.17, 21.47 child pornography, protection from 21.42, 21.43, 21.46 child soldiers 21.52–21.54 civil rights 21.01, 21.07, 21.17 contact following divorce 20.07, 20.53 corporal punishment 9.127, 21.08 criminal responsibility 21.20 cruel and inhuman treatment 21.15 custody of children 14.42, 20.58–20.67, 21.29–21.34 death penalty, prohibition on 8.65, 9.86, 21.06 deportation 20.29–20.32, 20.34, 21.14, 21.48–21.49 detention adverse effects 21.11 asylum seekers 21.09, 21.10, 21.12 Beijing Rules 9.237 conditions of 9.237, 21.20 humane treatment, right to 9.238 divorce 20.58–20.67

930

Index

children, protection of (Cont.) domestic service 21.42 economic, social and cultural rights 21.15–21.18 education child labour 21.17 equal treatment 21.24 generally 21.15, 21.17 pregnancy and parenthood affecting 21.17 religious education, rights of parents 17.54, 21.18 right to 21.15, 21.17 elections 21.07 exploitation, protection from child labour 21.47 child soldiers 21.52–21.54 generally 21.40–21.54 kidnapping 21.50–21.51 sexual exploitation 21.41–21.46 trafficking 21.48–21.49 expulsion 21.35, 21.49 fair trials 14.183 family courts, Human Rights Committee reluctance to override 20.39, 20.61– 20.62, 21.30–21.32, 21.34 family intervention by State 21.38–21.39 natural and fundamental unit of society 21.26 relationship with parent 20.39 reunification 21.35–21.37 rights within the 20.01, 21.26–21.39 separation from children 21.38–21.39 stability, threat to 21.28 female genital mutilation 21.14 forced labour, protection from 21.15 forced removal from parent 20.38–20.40 generally 21.01–21.63 girls birth, registration of 21.55–21.60 cultural or religious practices 21.24 education 21.17 guardianship 21.51 health care, equal treatment 21.24 identity, child’s right to an 21.55 illegitimacy, discrimination based on 21.25, 21.55, 21.61 indigenous people 21.57 infant mortality 8.75, 8.82, 8.49, 21.15 infanticide 8.99 institutional support 21.27 juvenile offenders 14.132, 21.06 kidnapping 21.50–21.51 legal personality, recognition of a child’s 21.55

legal proceedings juvenile offenders 14.183, 21.06 questioning of children in sexual abuse cases 21.42 legitimacy, discrimination based on 21.25, 21.55, 21.61 life, right to 21.14 life imprisonment without parole 21.21 majority, age of 21.19–21.22 maintenance of children 20.55 malnutrition 21.15 marriageable age 21.22 name, child’s right to a 21.55–21.60 nationality, child’s right to a 21.61–21.62 non-discrimination child’s special rights of 21.22, 21.23–21.25 divorce and 20.58 marital status of parents 23.79 parents abuse, by 21.38 access to 20.58–20.67, 21.29–21.34 alternative care, state’s duty to provide 21.38–21.39 apportionment of responsibility 21.26 children, as 21.17 forced removal from 20.38–20.40 neglect of children 21.38 religious education rights of 21.18 separation, from 21.38–21.39 single parents and poverty 21.16 working outside home, both parents 21.27 person before the law, recognition as 10.19, 10.24 personality, development of 21.15, 21.17 political rights 21.07 positive measures 21.08 pornography 21.42, 21.46 poverty 21.16, 21.44 pregnancy 21.17 prostitution, protection from 21.15, 21.42, 21.46 rape 21.14 refugees 21.09, 21.10, 21.12 recognition as person before the law, right of 10.19, 10.24, 21.56 registration, right to 21.55–21.60 religion 21.18 education and 17.50–17.56, 21.18 remedy, right to 25.02 reporting restrictions 21.06 rights, relationship to other 21.06, 21.68 reunification of family 21.35–21.37 duty to facilitate 21.36 sale of 21.46, 21.50, 21.55

Index sex tourism 21.45 sexual exploitation 21.41–21. slavery, servitude and forced labour, freedom from 10.11, 10.13 special measures, adoption of 21.06, 21.08, 21.19, 21.55 State apportionment of responsibility of the 21.26 care, State’s duty to provide alternative 21.38–21.39 statelessness 21.61–21.62 street children 8.44, 21.16, 21.44 trafficking illicit drugs, protection from 21.15 people trafficking 21.48–21.49, 21.55 unborn children, rights of 3.37 unmarried couples, access rights of 20.06, 20.09 victim requirement 3.24, 3.33–3.35 violence, protection from 8.44, 21.15 vote, right to 21.07 wedlock, children born out of 21.25, 21.55, 21.61, 23.79 citizenship colonies 12.37, 12.38 country, right to enter one’s own 12.33–12.45 evidence of 12.35, 12.37 naturalization 22.02–22.03 non-discrimination 22.02–22.03 political and public participation, rights of 22.01–22.04 residence 12.13 rights 12.37, 12.38 territorial and jurisdictional limits of the ICCPR 4.02 civil and political rights cultural relativism 1.119–1.137 economic, social and cultural rights, compared to 1.22 Human Rights Committee jurisprudence 1.31–1.67 natural rights 1.03–1.08 non-discrimination 23.14, 23.18 philosophical background to 1.03–1.11 reservations under the ICCPR, incompatible 26.24 systemic human rights abuse 1.116–1.118 Universal Declaration of Human Rights 1.09 civil disobedience 19.05 civil proceedings access to courts 14.29–14.47 appeals 14.47, 14.89 burden of proof 14.57

931

criminal charge, compared to 14.04 delay, trials without undue 14.90–14.96 discontinuance 14.42 expedition rule 14.90 fair trials 14.0114.60–14.89 innocence, presumption of 14.87, 14.112 legal aid 14.34, 14.160 retrospectivity 15.03 strict liability 14.87 suit at law 14.07–14.20 closed shops 19.35 clothing detention, conditions of 9.26, 9.38, 9.52, 9.132, 9.202, 9.204, 9.211, 9.215 expression, freedom of 23.02 headgear 17.31, 17.32, 23.42 indirect discrimination 23.42 religion, freedom of 17.31, 17.32, 23.03 sex discrimination 23.03 Sikhs 17.31, 17.32, 23.42 collective bargaining 23.97 colonies citizenship 12.38 country, right to enter one’s own 12.38, 12.44 decolonization 7.10 residency rights 12.38 self-determination 7.10, 7.16 succession of ICCPR obligations 26.49 territorial and jurisdictional limits of the ICCPR 4.05–4.10 Committee Against Torture another international procedure 5.06 compensation, right to 9.174 cruel, inhuman and degrading treatment or punishment 9.02, 9.11, 9.12, 9.22–9.23 definition of torture 9.03 extradition, expulsion or refoulement 9.108 generally 9.02 Human Rights Committee, consistency with jurisprudence 9.02, 9.250 jurisdiction over torturers, universal 9.188–9.192 justifiability of torture, views on 9.41 proceeding before, concurrent 5.06 Committee on Economic and Social Rights self-determination 7.26 Committee on the Elimination of all Forms of Discrimination Against Women affirmative action 23.85 elections, effective participation of women in 22.59 generally 23.01, 23.03, 23.24, 23.85, 23.107–23.110 marriage 20.56

932

Index

Committee on the Elimination of all Forms of Discrimination Against Women (Cont.) political and public life, women in 22.59 reverse discrimination 23.92 systemic inequality 23.111 women, violence against 23.107 Committee on the Elimination of Racial Discrimination affirmative action 23.83 generally 23.01 hate speech 18.85–18.89 indigenous people 24.16–24.17 indirect discrimination 23.39 private sector, discrimination in 23.895 law enforcement officers, training of 23.85 non-discrimination 23.03, 23.24, 23.85, 23.107–23.110 racial vilification 18.72 segregation 23.11 self-determination, right of 7.02, 7.06, 7.09–7.18 compensation, right to access to courts 14.204–14.209 adequacy 8.24, 8.25, 9.174, 9.175, 9.178, 9.181, 25.22, 25.23 appropriateness 25.03, 25.22, 25.23 autonomous right, no 25.07–25.09 detention, arbitrary or unlawful 11.101– 11.102 expropriation 24.28 generally 1.21 killings by state, for 8.03, 8.17 miscarriages of justice, for 14.73, 14.204–14.210 race discrimination 23.118–23.119 torture 9.174 unlawful killing, for 8.03, 8.17 compulsory or forced labour see slavery, servitude and forced labour, freedom from conditions of detention see detention, conditions of confessions 9.156, 14.69, 14.124, 14.169, 14.179 confidentiality correspondence, interference with 16.31–16.35 defence, preparation of the 14.116 legal representatives 14.76, 16.36, 16.37 privacy, right of 16.36–16.38 professional duties of 16.36–16.38 conscientious objection, right of 17.02, 17.41–17.49 military service 17.41–17.47 national security 17.43

non-discrimination 17.42, 23.07, 23.32–23.33, 23.57–23.59 passports, denial of 12.25 slavery, servitude and forced labour, freedom from 10.05 tax, withholding of 17.49 contempt of court 18.32, 18.55 contract capacity to 10.19 suit at law 14.07 contract, freedom from imprisonment for inability to fulfil a generally 10.14–10.17, 10.25 right, non-derogable 10.17, 10.25, 26.64 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment see also Committee Against Torture absolute right, freedom from torture as an 9.01 another international procedure, consideration under 5.06 appropriate procedures 9.152, 9.153 corporal punishment 9.129 cruel inhuman degrading treatment 9.34-9.39 definition of torture 9.04–9.24 detention, conditions of 9.131–9.135 duty to compensate victims 9.174 duty to investigate 9.168-9.171 duty to pass and enforce legislation 9.159 duty to punish offenders 9.180 duty to train personnel 9.150 exhaustion of remedies 6.01, 6.31 extradition, expulsion, and refoulement 9.98–9.126 extraterritorial jurisdiction 4.15 meaning of torture 9.04–9.24 non-use of confession obtained by torture 9.156, 9.157 omissions by the State 9.08 police, impartial investigations of the 9.161–9.173 public emergencies 9.26, 9.40 remedies investigation, prompt and impartial 9.169–9.171 universal jurisdiction over torturers 9.188–9.190 Convention on the Elimination of All Forms of Discrimination Against Women see also Committee on the Elimination of All Forms of Discrimination Against Women abortion 23.109 affirmative action 23.85

Index discrimination, grounds of 23.37 economic, social and cultural rights 23.24 educational duties 23.115, 23.117 exhaustion of remedies 6.01 generally 23.03, 23.24 groups, maintenance of unequal or separate standards 23.92 hate speech 23.102 investigations 23.117 marriage 20.56 political rights 22.59 positive obligations to eliminate discrimination 23.103, 23.115 promotional duties 23.117 sex discrimination, remedies for 23.118 sterilization without consent 23.110 systemic inequality 23.107 violence, gender-based 23.108 Convention on the Rights of the Child abortion 21.13 aims of, four 21.03 ‘best interests of the child’ 21.03 children as people 21.01 civil and political rights 21.01, 21.04 coverage of 21.02 derogations 26.61 generally 1.01, 21.01, 21.02–21.05 Human Rights Committee, effect on 21.05 International Covenant on Economic, Social and Cultural Rights, overlap with 21.04 parents, rights and duties of 21.03 participation, protection, prevention and provision, aims of 21.03 parties 21.02 principles underlying the 21.02 rationale for 21.02 rights, relationship to other 21.04 views of children 21.03 well-being of children 21.04 corporal punishment 9.127–9.130 children 9.127, 21.08 correspondence, interference with censorship 9.221, 16.31–16.35 privacy, right of 16.08, 16.31–16.35 telephone tapping 16.07, 16.34, 16.35, 16.37, 16.38 corruption 1.93, 22.18, 22.33, 25.06 bribery 22.33 costs access to courts 14.36, 14.37, 14.38, 14.39–14.41 exhaustion of domestic remedies 6.28–6.31, 6.49 legal aid 14.33

933

country, freedom to leave a administrative measures 12.17 aliens 12.17–12.18, 12.24 arrest warrant pending 12.22 civil law obligations, failure to perform 12.25 conscripted persons 12.25 crime, suspicion of committing 12.25 destination, choice of state of 12.17 documentation 12.19–12.21 emigration 12.17–12.18 expulsion 12.17 foreign workers 12.24 generally 12.17–12.26 horizontal effect of 12.24 husband’s consent required 12.24 international carriers, sanctions 12.17 limits to generally 12.25–12.26, 12.27–12.32 judicial proceedings 12.25 national security 12.22, 12.28, 12.30 meaning of 12.17 military service, unperformed 12.25–12.26 national security 12.23, 12.25, 12.26 national service 12.25–12.26 nationality, obligations on the State of 12.19, 12.22 necessity 12.28 passports, denial of alternative travel documents 12.21 confiscation by employers 12.24 denial of 12.19–12.21, 12.25 duty to provide to those within and outside country 12.20 proportionality 12.25, 12.28 public order 12.23, 12.25 reasons for exit 12.17 terrorism, threats of 12.23 travel documents, right to obtain 12.19–12.22 visa, exit 12.18 visits, time period of 12.17 women 12.24 country, right to enter one’s own aliens expulsion 12.39–12.43 meaning of 12.36 nationals and, distinguishing between 12.36 visa requirements 12.34 arbitrariness 12.33, 12.37, 12.39, 12.40 citizenship colonies 12.37, 12.38 evidence of 12.35, 12.37 rights 12.37, 12.38

934

Index

country, right to enter one’s own (Cont.) colonials, right to enter territory of administering state 12.44 colonies, removal of citizenship or residency rights in 12.37, 12.38 criminal offences, perpetrators of 12.39–12.42 deportation order, persons facing a 12.39–12.42 documentation, travel 12.35 exile, punishment by 12.34 expulsions 12.39-12.43 family relationships, interference with 12.39 generally 12.33–12.45, 12.46 immigrants 12.41 incorporation of one country into another 12.37, 12.44 meaning of 12.36 national security 12.44 nationals and aliens, distinguishing between 12.36 nationality country of nationality 12.36, 12.39, 12.42 stripping of 12.33, 12.37 ‘own country’ evidence of, requirement for 12.35 meaning of 12.36, 12.37, 12.39–12.41 passport 12.35 population transfers, enforced 12.33 public order 12.44 real connection to a country 12.36–12.38 reasonable denial of 12.33, 12.40, 12.44 re-entry, right of 12.39 refugees, repatriation of 12.33 remain, right to 12.33 residency rights 12.07, 12.39 return, right to 12.33, 12.36, 12.44, 12.45 stateless persons 12.36 travel documents 12.35 courts see also access to courts; fair trial, right to a; independent, impartial and competent tribunals; judges contempt 18.32, 18.55 equality before the 14.01, 14.21–14.28 habeas corpus 11.70–11.99 hostility in 14.73, 14.76 immunity from suit 14.28 language 14.122 military 14.55–14.59 family courts judges, deference to 14.65, 20.62, 20.64, 20.68 CRC see Convention of the Rights of the Child crimes against humanity see humanity, crimes against criminal charge, right to be informed of

arrest arbitrary or illegal 11.51 awareness of arrested person 11.49, 11.50 continued detention for different reason 11.52 interpreters 11.50 reasons for 11.45–11.52, 14.113 security measures 11.47 generally 11.45–11.52, 14.113–14.115 information, prompt 11.45, 11.46, 11.48, 11.51 interpreters 11.50 language understood by the prisoner, in a 11.50 notification, prompt 11.45, 11.46, 11.48, 11.51 promptly 11.45–11.52, 14.113 remand pending police investigations 11.48 criminal charges, rights of persons detained on access to lawyers 11.55 bail 11.64–11.69 delay, trials without undue 14.90 evidence, interference with 11.64, 11.67 excessive detention 11.57 extension of detention 11.56–11.57 generally 11.53–11.69 incommunicado detention 11.54 informed of, right to be 11.45–11.52, 14.113–14.116 ‘institutional objectivity and impartiality’ 11.56–11.57 ‘judge or other officer authorized by law’ generally 11.56–11.57 ‘institutional objectivity and impartiality’ 11.56–11.57 public prosecutor 11.56–11.57 judicial officer, prompt appearance before 11.53–11.55 lawyers, access to 11.55 leaving country, risk of 11.68 length of pre-trial 11.56 pre-trial detention, length of 11.58–11.63 extension of 11.56–11.57 reasonable time, what constitutes a 11.60 reasons for 11.67 seriousness of offence, relevance of 11.61, 11.62 total length of 11.58 prompt appearance before judicial officer 11.53–11.57 ‘judicial officer’ 11.56, 11.57 ‘promptly’, meaning of 11.54 ‘promptness’, limitations to 11.54, 11.55

Index public prosecutor 11.56–11.57 release pending trial, right to bail, ordinary availability of 11.18, 11.65, 11.69 evidence, risk of interfering with 11.64, 11.67 exceptions 11.64 foreign person arrested 11.68 generally 11.64–11.69 leaving country, risk of 11.68 trial within reasonable time, overlap with 11.59 criminal law, freedom from retroactive see retroactive criminal law, freedom from criminal offences and proceedings see also appeals in criminal cases; criminal charge, rights of persons detained on; retroactive criminal law, freedom from; particular crimes (eg rape) abortion 8.92, 8.94 access to courts 14.14.29–14.47 confessions 9.156, 14.69, 14.124, 14.169, 14.179 conscientious objectors 17.41 country, freedom to leave a 12.22 country, right to enter one’s own 12.33–12.34 delay, trials without undue 14.90–14.96 double jeopardy 14.210–14.215 equality before the courts 14.21 expedition rule 14.90 fair trials 14.01, 14.60, 14.85 hate speech 18.72 innocence, presumption of 14.105–14.112 killed by the state, remedies for 8.22 legal aid 14.152–14.159 legal representation 14.126–14.128, 14.145–14.151 public hearings 14.97 punish offenders, state’s duty to 8.15 sexual abuse cases, questioning of children on 21.42 specialist criminal courts 14.26, 23.124–23.127 statements obtained by torture, non-use of 9.156–9.158 trivial offences 14.154 victim requirement 3.48 cruel, inhuman and degrading treatment or punishment Article 7 violations 9.28–9.39 burning and destruction of houses 9.39 children, protection of 21.15 compensation 9.174–9.175 corporal punishment 9.127–9.130 ‘cruel’, meaning of 9.35

935

death penalty 9.78 death row phenomenon 9.81 definition 9.35 ‘degrading’, meaning of 9.35 degrading treatment 9.31 factors affecting determination 9.30 detention, conditions in 9.131–9.144 extradition, expulsion or refoulement 9.98–9.126, 13.09 generally 9.28–9.39 ‘inhuman’, meaning of 9.35 interrogation techniques 9.32 intent 9.35, 9.36 lawful sanctions 9.22 legislation in relation to 9.159–9.160 mental suffering 9.29 minimize risk of, duty to 9.151–9.152 negligence 9.25 physical suffering 9.29 positive obligations 9.34 private capacity, persons acting in a 9.18, 9.19 public officials 9.19 racist motives 9.39 remedies 9.159–9.182 rendition 9.38 severity of treatment 9.35, 9.37 solitary confinement 9.29 subjectivity 9.30 torture meaning of 9.04, 9.25 cultural relativism abortion 1.131 apostasy, Islamic law on 1.131 civil and political rights 1.119–1.124 collective rights 1.120 colonization 1.136 cultural diversity affecting interpretation of ICCPR 1.128, 1.130–1.131 developing States 1.124 duties 1.121 economic relativism 1.123–1.124 economic, social and cultural rights 1.122 family, protection of the 1.133, 20.06, 20.07, 20.14–20.15 female genital mutilation 1.131 homosexuality, attitudes towards 1.131 individual rights 1.120 interpretation 1.129 meaning of 1.119 non-Western states 1.119, 1.120, 1.121 political considerations affecting HRC decisions 1.137 polygamy 1.131 prison conditions 1.133

936

Index

cultural relativism (Cont.) privacy, attitudes towards homosexuality and 1.130 racism 1.136 reservations 1.127 rights and duties 1.121 sex discrimination 1.132, 1.135 traditional attitudes, reversal of 1.135 United States 1.120, 1.122 universalist language of ICCPR 1.125 Western states 1.119, 1.136 culture see also minorities, rights of castes, subjugation of lower 23.105 clothing 23.02 economic development, impact on 24.27–24.39 evolution of culture 23.19, 24.24 generally 24.22–24.52 Indigenous land rights claims 24.40–24.43 women, subjugation of 23.105 customary international law denunciations 26.40 derogations 26.68 reservations under the ICCPR 26.16, 26.24, 26.26, 26.39 retroactive criminal law, and 15.16 slavery, servitude and forced labour, freedom from 10.02 state immunity 1.93 state succession 26.48 damages see compensation, right to data protection 16.58–16.60 death penalty see also death row abolition 8.46, 8.58–59, 8.69–8.73, 8.101, 9.81 age 8.65 persons of advance age 8.66 amnesties 8.63–8.64 arbitrary and disproportionate punishment, as 8.56 children, prohibition of death penalty for 8.65, 9.86, 21.06 commutation of 8.54, 8.63–8.64, 14.20 corporal punishment, and 9.128 death qualified juries 14.71 death row phenomenon, relationship to 9.87 execution, methods of 9.93–9.96 exemptions 8.58, 8.65–8.66 expansion in list of crimes subject to 8.60 extradition to states with the death penalty extraterritorial responsibility of States generally 8.67–8.73, 8.101

reasonable foreseeability of penalty 8.71 territorial and jurisdictional limits of the ICCPR 4.38 victim requirement 3.41–3.43 fair trials 8.52, 8.53, 8.55, 8.101, 14.138, 14.152 families Islamic law, role of 8.51 role in imposition of death penalty 8.51 time and place, informing of 9.93 gas asphyxiation 9.94–9.95 imposition of, judicial 8.46–8.55 in accordance with the law, sentenced 8.46 intellectually disabled persons, prohibition of death penalty for 8.65 intentionally brutal, method of execution as 9.94 interim measures requests 1.64–1.66 legal aid 14.34 lethal injections, cruel and unusual treatment as 9.95 life, exception to right to 8.46, 9.79 limitations on 8.65 mandatory 8.56–8.57, 8.59, 8.101 mental suffering 9.79, 9.94 mentally disabled persons 8.65, 9.92 mercy, prerogative of 6.03, 8.61–8.64 methods of execution 9.94–9.97 ‘most serious crimes’, meaning of 8.48–8.51 non-deportation obligations 8.74 State with death penalty 8.67–8.73 non-discrimination, commutation and 23.130 non-violent crimes 8.50 pardons 8.61–8.64 pregnant women, prohibition of death penalty on 8.65 procedural guarantees 8.48 prohibitions on 8.47 public executions 9.97 reintroduction of 8.58–8.60 retribution 8.50 Second Optional Protocol 1.02, 8.47, 9.55, 26.34 stoning 9.94 suit at law, commutation not a 14.20 territorial and jurisdictional limits of the ICCPR 4.32–4.40 unintentional or inadvertent killing 8.49 wartime, during 26.34 death row see also ‘death row phenomenon’ conditions on 9.78–9.93, 9.131–9.144 ‘death row phenomenon’ cause of 9.79 children 9.86

Index cruel, inhuman and degrading punishment, as a form of 9.78–9.93 death penalty, relationship to 9.87 death row, length of time on 9.78, 9.81–9.93 detention, conditions in 9.84, 9.87, 9.131–9.144 deterioration of mental health, and 9.78, 9.86, 9.87 European Court of Human Rights, recognition of 9.79 generally 9.78–9.93 Judicial Committee of the Privy Council, recognition of 9.79 meaning of 9.78 mental disabilities, persons with 9.92 mental distress, causing 9.79, 9.84, 9.88 stay of executions, informing of 9.89–9.92 warrant for execution issued, where 9.89–9.93 death threats 11.03, 11.05 debt debt bondage 10.09 debtors’ prisons 10.14 Declaration of Friendly Relations self-determination 7.05 Declaration of Independence (United States) 1.04 Declaration of the Rights of Man (France) 1.04, 1.05 declarations under the ICCPR 26.08-26.12 declaratory judgments exhaustion of domestic remedies 6.45 defamation 18.36, 18.44, 18.46, 18.95 defence, preparation of the 14.116–14.128 access to legal advice 14.126–14.128 adjournments 14.118, 14.120, 14.121 capital cases 14.120, 14.124 confidentiality 14.126 detention incommunicado 14.128 documents, access to 14.122, 14.123, 14.125 equality of arms 14.116 evidence access to 14.122, 14.123, 14.124 familiarization with documentary 14.125 facilities for adequate 14.116, 14.122–14.125 generally 14.116–14.128 interpreters, provision of 14.116 language 14.122, 14.125 legal aid 14.124 legal representation access to, 14.117, 14.126 choice of 14.126 communication with 14.126–14.128

937

confidentiality 14.126 immediate access, to 14.117 pre-trial procedures, availability during 14.117 requests for 14.117 time for, adequate 14.116, 14.118–14.121 defendants see accused degrading treatment or punishment see cruel, inhuman and degrading treatment or punishment delay, trials without undue accused’s fault, where due to 14.137 administrative support, lack of 14.140 appeals 14.137, 14.139–14.140 arrest and trial, time between 14.130, 14.131–14.136 bail, denial of 14.130 burden of proof 14.133 complainant’s own behaviour due to 14.95 criminal charges, rights of persons detained on 11.53–11.69 civil hearings 14.90, 14.131 complexities of the case, due to 14.94, 14.95, 14.131, 14.135, 14.136 criminal trials 14.136 appeals 14.137, 14.139, 14.140 complexity 14.131 death penalty case 14.138 decisions, failure to implement 14.91 detention, length of pre-trial 14.130, 14.134, 14.135 economic causes 14.90, 14.140 family proceedings 14.92, 14.93 generally 14.90–14.96, 14.129–14.140 guarantee 14.90, 14.129 habeas corpus 11.70–11.73–11.82 persons or bodies responsible for 14.136 ‘promptly’, meaning of 11.54 ‘promptness’, limitations to 11.54 reasons for judgment, court delay in producing 14.137 stages, at all 14.129 ‘undue delay’, meaning of 14.129, 14.131 unreasonable delays 14.91, 14.130 democracy 22.08, 22.68 demonstrations and protests assembly, freedom of 19.08 expression, freedom of 18.11 national security 18.49 opinion, freedom of 18.06 denunciations under the ICCPR 26.01, 26.40–26.44

938

Index

deportation see also extradition, expulsion and refoulement arbitrary 12.39 children, protection of 20.24, 21.14, 21.36, 21.48 country, right to enter one’s own 12.33–12.45 criminal record, person with a 9.125, 12.39–12.43, 20.24–20.28 death penalty, to countries with the 4.36, 8.67–8.73 extraordinary rendition 1.67, 9.13, 9.38 family members, of 20.29–20.36 family unity, protection of 9.125, 20.24 generally 9.98–9.126 interim measures requests 1.65, 1.67 mass 12.33, 13.03–13.04 suit at law 14.17 tortured, to another country where person may be Committee Against Torture’s views on 9.108–9.116 examples of 9.110 foreseeability of torture 9.100, 9.104 generally 9.98–9.126 real risk 9.100 receiving states, characteristics of 9.125 derogations from the ICCPR American Convention on Human Rights 26.71 burden of proof 26.79 Convention on the Rights of the Child 26.61 crimes against humanity 26.67 criminal punishment, retroactive 26.64 cruel, inhuman and degrading treatment 26.64, 26.73 customary law 26.68 discrimination ‘solely’ on enumerated grounds 26.63 economic difficulties 26.55 European Convention on Human Rights, margin of appreciation and 26.79 fair trials 26.72 functional non-derogable rights 26.71–26.72 generally 26.01, 26.51–26.81 Human Rights Committee, supervisory role of 26.79 imprisonment for contractual debt, freedom from 26.64 international law, conformity with 26.60–26.61, 26.68 jus cogens 26.68 legality, maintenance of 26.70 life, right to 26.64 medical and scientific experiment, freedom from 26.64

minority rights 26.67 monitoring 26.51 movement, freedom of 26.57 national security 26.57 non-derogable rights 26.64–26.73 criminal punishment, retroactive 26.64 cruel, inhuman and degrading treatment 26.64, 26.73 implicit non-derogable rights 26.67, 26.68, 26.80 imprisonment for contractual debt, freedom from 26.64 medical and scientific experiment, freedom from 26.64 nature of 26.65–26.66 recognition as a person before the law 26.64 slavery or servitude, freedom from 26.64 thought, conscience and religion, freedom of 26.64 torture 26.64, 26.73 non-discrimination 23.01, 26.62–26.63 Paris Standards 26.52, 26.54 peremptory norms of international law 26.67, 26.68 procedural requirements for 26.74–26.78 compliance, failure 26.78 notice requirements 26.76, 26.77 ‘official proclamation’, meaning of 26.74 Secretary General, duty to inform 26.75, 26.77 substantive elements 26.78 proportionality generally 26.51, 26.55–26.59, 26.69 ‘to the extent strictly required’ 26.55, 26.58 public emergency threatening the life of the nation abuses, during 26.51 cessation of 26.59 communication of 26.76 duration of 26.59 economic difficulties 26.55 exceptional and temporary nature 26.59 generally 1.21, 5.01, 26.53–26.55 geographically limited 26.54 meaning of 26.54 proportion of population affected 26.54 proportionality 26.51, 26.55–26.59 recognition as a person before the law 26.64 remedies 26.67 revocation, informing UN of 26.75 rule of law, maintenance of 26.70 Siracusa Principles 26.52, 26.54, 26.55, 26.58 slavery or servitude, freedom from 26.64

Index state parties, notifying other 26.76 strict necessity 26.58 substantive limits to 26.53 thought, conscience and religion, freedom of 26.64 torture 9.01, 26.64, 26.73 United Nations, informing the 26.76 detained persons to humane treatment, right to see also detention, conditions of abuse by fellow prisoners 9.216 accused persons, segregated from convicted persons 9.232–236 age 9.202 asylum seekers, detained with convicted prisoners 9.213 banishment, periods of 9.195 cage beds 9.217 children, protection of 9.237–9.239 community sentences, encouragement of 9.247 conditions of detention regulation of 9.195 simultaneous breaches of Arts 7 and 10 9.210 contracting out of state activities 9.196–9.199 correctional institutions 9.195 death row phenomenon 9.223 derogable right, as a 9.193 detention camps 9.195 development, state’s level of 9.200, 9.203 dignity, right to be treated with 9.193 disabled prisoners 9.231 duties under, positive 9.225–9.231 education and training 9.240 evidence failure to keep records, consequences of 9.228 generally 9.193–9.249 family and friends, communication with 9.221 hard labour 9.243 healthcare, adequate standards of 9.230–9.231 hospitals, persons in 9.195 incommunicado detention duration 9.218 information, access to 9.222 juvenile detainees, protection of 9.234–9.239 maximum security prisons criticism of regime 9.248 medical records, access to 9.222 mental disability 9.202 minimum conditions of detention 9.200–9.217 conditions affecting all detainees 9.205 conditions detrimental to health 9.206 material resources 9.200

939

overall standards of living 9.203 parole, mandatory non-parole period 9.243 penal policies 9.241 ‘persons deprived of their liberty’, meaning of 9.195 positive duties 9.225–9.231, 9.253 administrative provisions, information on 9.225 legislative provisions, information on 9.225 monitoring provisions, information on 9.225 pregnant and post-natal prisoners 9.229 remedies, information on 9.225 training of appropriate personnel 9.225 procedural duties 9.225–9.228 prisons monitoring 9.226 persons in 9.195 policy 9.241 privatization 9.197 private detention institutions 9.196–9.199 psychiatric hospitals, persons in 9.195 rehabilitative purposes 9.240–9.249 neglect by HRC 9.249 retribution 9.241 severity of conditions 9.209 sex offenders 9.243 solitary confinement duration 9.219, 9.220. refusal to abandon political opinion 9.242 suicides in prison 9.201 torture, cruel, inhuman and degrading treatment or punishment distinguished 9.134–9.135, 9.193, 9.252 simultaneous breaches of Arts 7 and 10 9.210 treatment, less serious forms of 9.193, 9.204 UN Minimum Standards for the Treatment of Prisoners 9.197, 9.200, 9.214–9.215 victimization 9.224 vote, right to 9.246 vulnerable detainees 9.202 wages of prisoners 9.245 women separate facilities from male prisoners 9.236 women warders to guard 9.212 detention see also criminal charges, rights of detained persons on; detained persons to humane treatment, right to; detention, conditions of; habeas corpus; liberty, right to; prisoners abuse from other prisoners 9.150 administrative 10.23, 11.17 age 21.20 arbitrary 11.01, 11.15–11.44

940

Index

detention (Cont.) assaults 9.35–9.36, 9.96, 9.141–9.145 asylum seekers, of 9.73, 9.116–9.124, 9.213, 9.251, 11.24–11.29 cage-beds, use of 9.150 children Beijing Rules 9.166 protection of 9.166–9.167 separation from adults of 9.131, 9.149, 9.167 claustrophobia, persons with 9.28 clothing 9.93, 9.149 communication with family and friends 9.98 consequences of detention, distinguished 9.131 Convention against Torture 9.152 correspondence, censorship of 9.153 cruel, inhuman or degrading treatment, as 9.26–9.29, 9.35, 9.93–9.98, 9.103–9.106, 9.131–9.135, 9.142, 9.138–9.156 minimizing risk of, duty to institute procedures to 9.151–9.153 dangerousness, future 11.32 death row 9.142, 9.144–9.145 medical treatment, inadequate or denial of 9.136 phenomenon 9.57, 9.155 solitary confinement 9.142 delays in transfers 9.48 deportation, pending 9.14–9.15, 9.21, 9.62, 9.100, 11.24–11.29 disappearances, incommunicado detention and 9.145 disciplinary measures 9.94, 9.149 economic relativism 1.101 evidence 9.152 equality 9.140, 9.149, 9.164 extradition, expulsion or refoulement 9.101 family and friends, communication with 9.98, 9.142, 9.149, 9.153 food and water, deprivation or quality of 9.93, 9.140, 9.146, 9.149, 9.160 freedom from 11.01–11.02 health of prisoner, detrimental to 9.134–9.140 immigration, for the purposes of 11.24–11.29 incommunicado detention criminal charges, rights of persons detained on 11.31 disappearances and 9.105 duration of 9.142–9.144 duty to prevent 9.151, 9.154–9.155 generally 9.97–9.98, 9.151–9.152 habeas corpus 11.47, 11.53 lawyer, right to one’s own 14.84 torture 9.39, 9.97–9.98, 9.105–9.106, 9.115, 9.151–9.152

victim requirement 3.31, 3.32 information, access to 9.149, 9.154, 9.157 inhumanity entailed in detention, distinguished 9.131 lawyers, access to 9.103, 9.142, 14.84 legal representation 14.107 legality, requirement of 11.11–11.14 lighting 9.93, 9.149 mail, censorship of 9.153 manual labour 9.146 medical treatment compulsory provision of 9.101 denial of or inadequate 9.35–9.36, 9.52, 9.93, 9.132, 9.136–9.1409.143, 9.154 medical records, access to 9.154 pregnant and post-natal prisoners 9.161 prescription without consent 9.149 prohibition 9.148 mental institution, in 11.21–11.23 mental suffering 9.26, 9.48–9.53, 9.57, 9.60 military detention 9.26–9.29 military discipline, for 11.09, 23.33 minimum standards 9.132-9.135, 9.137–9.1399.138–9.156 monitoring of prisons 9.157–9.159 nongovernmental entity, threat from 9.14 official places of detention, detainees kept in 9.103 pain and suffering 9.26 period of 11.13–11.14, 11.16–11.19 person before the law, recognition as 10.14 physical exercise, limited or no 9.93 police custody 9.160 state’s duty to adequately train 9.102 positive obligations 9.138, 9.157–9.162 pregnant and post-natal prisoners 9.161 preventive 11.24, 11.31–11.37 private detention centres 9.135–9.137 psychiatric institutions 9.150 psychiatric treatment 11.21–11.23 rape 9.06, 9.147 recognition as person before the law, right to 10.23 records, keeping of 9.160 registers, keeping of 9.103 refugee status, during determination of 11.24–11.29 release previously ordered 11.17 remand prisoners, separation of 9.149, 9.163–9.164 security of the person 11.03–11.07 searches 9.32 segregation 9.131

Index sentences 11.17, 11.22 severity, threshold of 9.144 shackles 9.32, 9.94 small cells, confinement in 9.26 social care homes 9.150 solitary confinement 9.26, 9.93–9.94, 9.97–9.98, 9.132, 9.141, 9.151–9.152 cruel, inhuman and degrading treatment or punishment 9.26 duration of 9.1329.151A pre-trial 9.152 rehabilitation 9.170subsequent period of 11.17 territory of a state, within the 12.02 torture, asylum seekers and 9.73 torture 9.32–9.36, 9.39, 9.92–9.98, 9.103–9.106, 9.133–9.172 meaning of 9.18 training 9.150, 9.157 transfers, information on 9.149 UN Codes 9.93, 9.138, 9.148–9.149 UN Standard Minimum Rules for the Treatment of Prisoners 9.93, 9.138, 9.148–9.149 use of force, proportional 9.96 vagrants 11.17 ventilation 9.93, 9.149 victimization 9.156 warders, state’s duty to adequately train 9.102 women’s prisons 9.147, 9.161 detention, conditions of see also detained persons to humane treatment, right to consequences of detention, distinguished 9.131 cruel, inhuman or degrading treatment, as 9.131–9.135, 9.142 disappearances, incommunicado detention and 9.145 family and friends, communication with 9.142 food and water, deprivation or quality of 9.140 health of prisoner, detrimental to 9.133 incommunicado detention criminal charges, rights of persons detained on duration of 9.142–9.144 inhumanity entailed in detention, distinguished 9.131 lawyers, access to 9.142 medical treatment denial of or inadequate 9.132, 9.136–9.140 prescription without consent 9.149 minimum standards 9.132-9.135, 9.137–9.139 solitary confinement 9.132, 9.141

941

cruel, inhuman and degrading treatment or punishment , duration of 9.132 violent treatment 9.135 development, state’s level of corruption 1.124 cultural relativism 1.119 delay, trials without undue 14.149 detention, conditions of 9.132 derogations 26.55 detained persons to humane treatment, right to 9.132 economic relativism 1.123–1.124 expression, freedom of 18.60 minorities, rights of 24.27–24.39 pre-trial detention, length of 11.63 differentiation, permissible see also affirmative action administrative convenience 23.57 breadwinner legislation 23.14, 23.43, 23.51, 23.78 budgetary constraints 23.23 generally 23.48–23.82 non-discrimination 23.04, 23.06, 23.09, 23.14, 23.21, 23.22, 23.48–23.86 property under centrally planned economies, appropriation of 23.65 ‘reasonable and objective test’ 23.04, 23.43, 23.45, 23.49–23.82 reverse discrimination 23.87–23.94 disabled persons abortion, and 9.59, 17.26 affirmative action 23.83 consent 9.147 Convention on the Protection of the Rights of Persons with Disabilities 1.140, 23.03, 23.39 death penalty 8.65 detention 9.202, 9.231 exhaustion of domestic remedies 6.18 facilities for 21.22 infanticide 8.99 marital status 23.10 non-discrimination 23.18, 23.31, 23.36, 23.83 pensions 14.09–14.11 suit at law 14.09–14.11 use of force 9.48 vote, right to 22.55 disappearances detention 11.05 conditions of 9.141 freedom from arbitrary detention 11.105 evidence of death 8.32, 8.33 generally 8.27–8.34

942

Index

disappearances (Cont.) incommunicado detention 9.141, 9.154–9.155, 9.218–9.220 investigate, state’s duty to 8.16–8.21 life, right to 8.27–8.34 person before the law, recognition as 10.22 prevent, state’s duty to 8.27 ratione temporis rule 2.11–2.13 remedy, right to 25.16, 25.25, 25.26 torture 9.145 discontinuance 14.42, 14.75, 14.96 discrimination see non-discrimination displacement, internal 12.02 disease 8.45 divorce access to children upon 20.59–20.67 progressive implementation of obligation 20.61 unilateral opposition of one parent 20.65 family property 20.54 maintenance 20.67 municipal courts decisions on, reluctance to interfere with 20.62–20.64 remarry, right to 20.46 DNA testing 16.61, 20.22 domestic law, ICCPR and 1.25–1.30 bills of rights 1.26, 25.10 direct effect 1.30 enforcement 1.25 failure to give effect to ICCPR 1.29 federal governments 1.29 implementation of ICCPR into 1.16, 1.20, 1.25–1.30 provincial law 1.29 regional differences 1.29 state responsibility 1.29 state sovereignty 1.25 statutory interpretation 1.30 domestic remedies, exhaustion of see exhaustion of domestic remedies domestic violence exhaustion of domestic remedies 6.27 family, protection of the 20.01 security of the person 11.06 sex discrimination 23.37, 23.98, 23.108 torture 9.160 domestic workers child exploitation 21.38 migrant workers, illegal 10.10, 10.11 slavery, servitude and forced labour, freedom from 10.10, 10.11 double jeopardy, freedom from 14.210–14.215 deportation on basis of criminal record 14.213–14.214

military service, repeated imprisonment for refusal 14.211 preventive detention 14.212 ne bis in idem 14.210–14.211 dowry killings 8.88 drugs child exploitation 21.48–21.49 extradition, expulsion or refoulement 13.25 religion, freedom of 17.04, 17.05, 17.34 trafficking 21.48–21.49 economic exploitation or dominance children 21.21.40, 21.47–21.49 slavery, servitude and forced labour, freedom from 10.02 economic relativism 1.123, 1.125, 1.126, 1.130, 1.133, 1.134 family, protection of the 20.05 economic, social and cultural rights see also International Covenant on Economic, Social and Cultural Rights children’s rights and 21.15–21.18 civil and political rights, compared with 1.122 Eastern bloc 1.11 economic relativism 1.123 European Union 1.122 indivisibility 1.11, 1.104, 1.105 legal aid 6.29 life, right to 8.75 natural rights 1.06–1.08 non-discrimination 23.15, 23.18, 23.19–23.24 political rights, compared with 1.11 positive rights 1.100, 1.104, 1.105 self-determination 7.01 United States 1.91 Universal Declaration of Human Rights 1948 1.09 education see also religious and moral education abortion 8.95 child exploitation resulting in denial of 21.47, 21.48 children, protection of 2115, 21.17, 21.57 detained persons to humane treatment, right to 9.240 generally 21.15, 21.17 girls 21.24 liberty, right to 11.08 minorities 24.47 non-discrimination 21.21, 23.21, 23.60, 23.83, 23.113–23.116 pregnancy and parenthood affecting 21.15

Index train personnel, duties to 8.11, 8.35–8.40, 9.150, 19.05 voting 22.25, 22.33 effective remedy, right to an abortion, prevention 25.20 absence of domestic remedy 25.08, 25.09 access to courts 14.29 cessation of violation and essential element 25.02 disappearances 25.25, 25.26 domestic legislation to provide 25.10 enforcement, failure amounts to breach 25.17, 25.18 forms 25.03 generally 1.21, 25.01, 25.02 institutions to provide 25.02 liberty, right to 11.08 non-discrimination 23.118–23.119 provisional or interim measures 25.03 race discrimination 23.118–23.119 sex discrimination 23.118–23.119 torture 9.159 elections see also voting age 22.41 association, relationship to freedom of 22.56 automatic voting systems 22.60 candidates free choice of 22.41 language and 24.49 children 21.07 civil servants 22.47 Committee on the Elimination of all Forms of Discrimination against Women 22.59 conflicts of interest 22.41 costs effect of 22.46 limits on 22.50, 22.52 deposits 22.41 disabled persons, independent assistance 22.55 distorted outcomes 22.26, 22.54 electoral boundaries 22.35–22.37 electoral systems 22.54 electors, expressing the will of 22.50–22.54 expression, freedom of 18.43, 22.56 facilities for, state’s duty to provide 22.33, 22.34 fascist party, reorganization of the Italian 22.45 fees 22.41 flaws in, inquiries into 22.59 generally 22.41–22.59 genuine 22.01, 22.50–22.54, 22.57 international observers involved in 22.51

943 language requirements 22.49 media influence on political parties 22.56–22.59 nationality discrimination 23.74 non-discrimination in 22.41 office holders, elected 22.41 opinion polls 18.43 one-party systems 22.42 periodic genuine 22.50–22.54 police 22.47 political and economic power, unequal distribution of 22.59 political opinion 22.41 political parties bans on 22.45 far right, bans on 22.45 media influence on 22.56–22.59 pervasive influence 22.57 recognised 22.42 positive discrimination 22.48 press, freedom of 22.56 private sector media monopolies 22.58 public servants 22.47 quotas 22.48, 23.94 registration of candidates 22.44 removal of elected office holders 22.41 restrictions on right to stand age 22.41 justification for 22.41, 22.42, 22.47 nationality 23.74 political opinion 22.41, 22.42 public servants 22.47 state’s duty to explain 22.41, 22.42 reverse discrimination 22.48 secret ballots 22.55 stand for, right to 22.41 civil servants 22.47 conditions on 22.41 costs involved 22.46, 22.50, 22.52 criminal convictions 22.43 criteria 22.41 discrimination 22.41 fascist party 22.45 generally 22.41–22.49 one party states, incompatibility of, with the 22.42 proxies 22.43 public servants, restrictions on 22.47 restrictions 22.41 reverse discrimination 22.48 violations of 22.42–22.49 women 22.48 systems of 22.54 time period between 22.53 violence, to be free of 22.5

944

Index

elections (Cont.) women participation of 22.49 quotas for 22.48 emergencies see also derogations abuses, during 26.51 cessation of 26.59 communication of 26.76 Convention against Torture 9.40–9.42, 9.49–9.53 derogations from ICCPR 26.53–26.55 duration of 26.59 economic difficulties 26.55 exceptional and temporary nature 26.59 generally 1.21, 5.01, geographically limited 26.54 meaning of 26.54 non-derogable rights from ICCPR 26.64 procedural requirements for 26.74–26.78 proportion of population affected 26.54 proportionality 26.51, 26.55–26.59 torture 9.40–9.42 employment see also migrant workers; slavery, servitude and forced labour, freedom from age 21.19 child labour 21.47 contract, imprisonment for failure to fulfil a 10.14 dismissal from 14.14–10.17, 23.86 natural rights 1.03–1.08 sex discrimination 23.43, 23.62, 23.83 work permits 10.10 entry into force of the ICCPR 1.01 equality before the courts access to courts 14.29 civil proceedings 14.22 criminal proceedings 14.22, 14.23, 14.24 equality of arms 14.22 fair trials 14.01, 14.21–14.28 generally 14.21–14.28 guarantees of 14.21 immunity from suit 14.28 judicial officers 14.21 judiciary, non-discrimination by the 14.21 non-discrimination 14.10, 120, 23.124–23.127 party to proceedings 14.24 prosecutors 14.21, 14.27 specialist criminal courts 14.25, 14.26, 23.124 equality before the law, right to see also non-discrimination, right of European Convention on Human Rights, compared with 23.17 fair trials 14.21

non-discrimination 23.15, 23.16, 23.38, 23.120–23.130 procedural 14.21 scope of right 23.15 equality between men and women see sex discrimination equality of arms 14.18, 14.22, 14.31, 14.61, 14.74, 14.77, 14.87, 14.116, 14.119, 14.169, 14.170, 14.177 European Commission on Human Rights another international procedure, before 5.01, 5.07, 5.09, 5.10–5.11 European Convention on Human Rights see also European Court of Human Rights another international procedure, consideration under 5.06, 5.10, 5.13–5.16 death row phenomenon 1.77, 9.81 derogations 26.79 Human Rights Committee as appeals body from 5.08 life, right to 8.05 margin of appreciation 18.35, 18.69, 26.79 non-discrimination 23.17, 26.14 torture 9.25 European Court of Human Rights another international procedure, consideration under 5.09, 5.10–5.13 reservations 26.20 European Union 1.19 euthanasia 8.96–8.98, 8.104 infanticide 8.99 evidence see also witnesses administrative proceedings failure to admit 14.77 appeals in criminal cases 14.63 criminal charges, rights of persons detained on 11.45 defence, preparation of 14.116–14.128 experts 14.174 fair trials 14.60, 14.62 First Optional Protocol, individual communications under 1.51–1.54 interference with, risk of 11.57 national security 13.21 release pending trial 11.64–11.70 searches 16.27–16.30 torture 9.54–9.56 execution, methods of 9.94–9.97 execution see death penalty exhaustion of domestic remedies abuses, opportunity to correct 6.01 administrative remedies 6.05–6.07 admissibility of complaints under ICCPR 6.01–6.49

Index appeals Court refuses to hear due to unpaid court fees 6.17 none available 6.04 precedent, contrary 6.25 time limits, expiry of 6.12 burden of proof in proving 6.44–6.48 compulsory manner of exhaustion 6.05–6.06 constitutional motions, legal aid and 6.29 Convention against Torture 6.01 Convention on the Elimination of All Forms of Discrimination against Women 6.01, 6.27 costly remedies 6.28–6.31, 6.49 court fees, payment of 6.17 de facto remedies, lack of 6.20, 6.21 de jure remedies, lack of 6.20 death penalty, petitions for mercy and 6.04 death row, conditions on 609 decisions, no further appeal available from 6.02 declaratory judgments 6.45 delay 6.01, 6.22, 6.32–6.39, 6.49 detention, conditions of 6.18, 6.21, 6.33, 9.131 disciplinary measures 6.04 domestic violence 6.27 ex post facto remedies 6.08 extraordinary remedies 6.04, 6.48 fair trials 6.09, 6.12, 6.20–6.21, 6.29, 6.40 family courts, in 6.34 futile remedies 6.19–6.27, 6.49 future and present generations 8.76 generally 6.01–6.49 ignorance of law no excuse 6.12, 6.13 indigenous people land rights 6.05–6.07, 6.22, 24.42–24.43 ineffective remedies 6.21, 6.23, 6.24 judgment, final 6.02 judicial remedies 6.02–6.04 judicial review failure to seek 6.26 time limits for lodging an application for, failure to meet 6.16 lawyer’s or other person’s failure to notify accused of remedy 6.12, 6.14 legal aid, lack of 6.28–6.30 legal proceedings, delays in 6.01, 6.32–6.39, 6.49 length of proceedings 6.39 manner of, required 6.09–6.18 mercy, petitions of 6.04 multiple proceedings 6.11, 6.12 no further remedies 6.15 non-judicial remedies 6.04 onerous nature of 6.26

945

political negotiations between indigenous tribes and government 6.04 precedent 6.25–6.26, 6.49 procedural formalities, compliance with 6.17 prolongation of remedies, unreasonable 6.01, 6.06, 6.22, 6.24, 6.32–6.39, 6.49 remedies administrative remedies 6.05–6.07, 6.18 binding nature of 6.07 ex post facto remedies 6.08 extraordinary remedies 6.04, 6.44 judicial remedies 6.02–6.04 non-judicial remedies 6.04 rule in relation to, purpose of 6.01 State succession 6.40–6.43 substantive rights, requirement to raise 6.09–6.18 time limits, failure to seek remedy within 612, 6.14, 6.16 types of remedies that must be exhausted 6.03–6.08 victimization 6.21 vulnerability of complainant 6.18 waiver of requirement 6.02 exile, punishment by 12.34 expeditious hearings see delay, trials without undue exploitation of children see child exploitation expression, freedom of see also hate speech academic freedom 18.70 access to information 18.22–18.27 advertisements languages 18.10, 18.39 public health 18.65 anti-democratic political parties 18.53 anti-state sympathies 18.51 artistic expression 18.08, 18.10 assembly, freedom of 18.11 blasphemy 18.67 censorship 18.15, 18.18, 18.68 commercial expression 18.10, 18.39 contempt of court 18.32 courts, languages used in 18.12 coverage of 18.01 cultural expression 18.08, 18.10 cultural relativism 1.119 defamation 18.37, 18.44 democratic society 18.02, 18.18 demonstrations and protests 18.11 developing countries, trade off of obligations of 18.60 duties and responsibilities 18.01 economic development 18.60 entities affected by 18.04

946

Index

expression, freedom of (Cont.) European Convention on Human Rights, margin of appreciation and 18.69 fascist party, reorganization of 18.52 generally 18.01–18.95 government, criticism of 18.45 government information 18.26, 18.27 graffiti, use of 18.14 homosexuality 18.62, 18.68 hunger strikes by persons in detention 18.62 ICCPR, relationship with other provisions 18.03 individual self-fulfilment 18.01, 18.02 information access to 18.22–18.27 freedom of 18.27 freedom to impart 18.15–18.17 individual and social 18.26 personal interest in 18.24, 18.25 receipt of 18.26, 18.28–18.29 internet 18.21 journalism 18.18, 18.47, 18.49 labour disputes 18.52 languages 24.46–24.52 advertising in restricted 18.10, 18.39 courts, in 18.12 discrimination 18.52 official 18.42 public order 18.41 public/private spheres 18.41 left-wing views 18.54 libel criminal 18.46 public interest reporting 18.47 limitations to, permissible 18.01 content specific 18.21 generally 18.30–18.71 grounds 18.30 internet 18.21 law, provided by 18.26, 18.30–18.32 necessity 18.33 proportionality 18.30, 18.40, 18.43, 18.58 relevance 18.34 ‘margin of discretion’ 18.69 meaning of 18.08–18.21 media abuse of power by private owners 18.19 broadcasting licenses 18.18 equal access to 18.61 generally 18.18 government control 18.19 government subsidies and advertising misuse 18.20 journalism 18.18

minorities 18.18 monopolies, public and private 18.19 parliamentary press facilities, denial of 18.61 political parties 22.56 press, freedom of the 18.15, 18.18, 18.28, 18.61 private ownership 18.19 public right to receive 18.18 regulatory systems 18.18 terrorism, provision of information on 18.18 minorities, rights of 24.09, 24.46 national security anti-state sympathies 18.51 demonstrations 18.51 generally 18.18, 18.48–18.54 information, freedom to impart 18.28, 18.61 labour dispute, interference with 18.52 meaning of 18.48 military promotion 18.23 official secrets 18.48 public order 18.64 terrorism 18.49, 18.50 non-discrimination 18.31, 23.12, 23.89 non-verbal expression 18.11 obscene material 18.71 official secrets 18.48 opinion, freedom of 18.02, 18.05–18.07 absolute freedom of passive conduct 18.05 change, right to 18.06 others, rights of 18.36–18.43 meaning of 18.37–18.38 reputations of 18.44–18.47 parliamentary privilege 18.32 parliamentary procedure 18.61 pluralistic tolerant society 18.01, 18.02 political expression 18.09, 18.10, 18.60, 18.81 political parties 18.553, 18.60, 18.83, 22.56 pornographic material 18.71 press conference 18.13 press, freedom of the 18.15, 18.18, 18.28 pre-trial reporting 18.36 privacy 18.36 propaganda 18.05 proportionality 18.30, 18.40, 18.43, 18.58 public bodies 18.22 public health and morals 18.18, 18.18.65–18.71 public order generally 18.18, 18.55–18.64 limited context 18.63 meaning of 18.56

Index national security 18.64 ordre public 18.56 parliamentary press facilities, denial of equal access to 18.61 public speeches 18.58–18.59 public speeches, permits for 18.58–18.59 publication of textbooks 18.16–18.17 receipt of information 18.26, 18.28–18.29 religion manifesting 17.30 teaching 18.70 reputations 18.44–18.47 right-wing views 18.54 rights of others 18.36–18.43 rights, relationship to other 18.03 scope 18.04 victim requirement 3.19 voting 22.33 expropriation compensation 24.28 culture 24.25–24.26, 24.28 exhaustion of domestic remedies 6.22 indigenous people 24.25–24.26, 24.28 non-discrimination 23.68, 23.70 ratione temporis rule 2.14, 2.17 restitution 23.40–24.43 expulsion see extradition, expulsion and refoulement extradition, expulsion and refoulement see also deportation administrative procedures 13.12 aliens asylum seekers 9.101–9.102, 9.116–9.119 country, right to enter one’s own 12.39–12.43 eligible 13.09 extradition 13.05 illegal immigrants 13.09 lawfully within the particular state, those 13.01, 13.09 procedural rights of 9.124, 13.01–13.26 security ratings 13.20–25 tortured, those likely to be 9.101–9.102 women 13.06, 13.15 appeals 9.107, 13.16 arbitrary grounds 13.02, 13.03, 13.24 arguments against expulsion, right to present 13.01, 13.14 arrest 13.03 asylum CAT Committee no power to grant 9.116 modification of asylum decision 9.117 asylum seekers 9.101–9.102, 9.116–9.119, 13.09

947 Convention against Torture 9.117–9.119 illegal entrants 13.09 procedure for expulsion 9.124 remedies for 9.117 representation, right to 13.18 safe countries 9.9.120, 9.124 standard of proof 9.118 status of 9.101–9.102, 13.15 terrorists, suspected 13.10 CAT Committee 9.106, 9.108–9.116 determination of asylum entitlement, no 9.116 evidence 9.100–9.126 receiving states, record in human rights of the 9.112 third countries, deportation to 9.112 torture, foreseeability of 9.111 challenging 13.02 children, protection of 21.14, 21.36, 21.48 collective expulsions13.17 competent authorities administrative authorities 13.12 appeal/review 13.16 heard by, right to be 13.01, 13.12–13.14 relevant considerations 9.108 reviews by 13.01, 13.09, 13.14, 13.16–13.17, 13.16 subsequent review 13.16 Convention against Torture 9.106, 9.108–9.117, 9.119–124, 9.126 Convention on the Status of Refugees 9.116–9.117 country, freedom to leave a 12.14, 13.03 country, right to enter one’s own 12.33 coverage of 13.02 cruel, inhuman or degrading treatment 9.98–126, 13.09 aggravation of physical or mental health conditions 9.126 death penalty, extradition to country with the 8.8.67–8.64 reasonable foreseeability of 8.70 territorial and jurisdictional limits of the ICCPR 4.32–4.40 victim requirement 3.41–3.43 detention, conditions of 9.101 diplomatic assurances of protection 9.104–9.106 drug dealing 13.25 ethnic groups 9.111 exhaustion of domestic remedies 6.23 extradition, application to 13.05 fair trial, relationship with 13.07–13.08 female genital mutilation 9.57, 9.62

948 extradition, expulsion (Cont.) foreseeability torture 9.100, 9.108, 9.121 generally 9.98–9.126 gross, flagrant or mass violations of human rights 9.108 grounds for expulsion 9.108 national security 13.01, 13.19–13.25 substantive 13.03 terrorism, suspicion of 13.23 guarantees against expulsion, no substantive 13.02, 13.04, 13.06, 13.26 habeas corpus 11.88 hearing by a competent authority, right to 13.10 failure to allow the 13.14 generally 13.12–13.14 judicial body, by a 13.12 reasonable time, in 13.14 illegal entrants 13.09, 13.20 immigration hearings 13.12–13.15 laws accordance with, in 13.10–13.11 arbitrary 13.02 discriminatory 13.02 implementation of 13.02 municipal law as 13.11 substantive 13.02, 13.11 legal representation, right to 13.18 liberty, deprivation of 13.03 mass expulsions 12.27, 13.03–13.04 medical treatment in receiving state, availability of 9.101 mental distress 9.101 mental illness 9.101 municipal law, reluctance to overturn 13.10 national security 9.113, 13.01, 13.11, 13.19–13.25 discretion of State exercising exception 13.23 evidence of, compelling 13.21, 13.24 non-discrimination 13.02, 13.13 notice of expulsion 13.14 own country, expelling state as 13.02 persecution foreseeable 9.100 group, membership of a 9.103 procedural defects 13.10 procedural law, compliance with 13.01 procedural rights against 13.01–13.26 purpose of 13.03 real risk of irreparable harm 9.99–9.100

Index receiving state choice of 13.03 harshness of reception in 9.125 medication, availability of 9.101 representation, right to 13.18 residence 12.11, 13.02 reviews by a competent authority, right to abrogation of 13.19 expulsion, after 13.16 generally 13.16–13.17 initial decision, after the 13.16–13.17 national security assessments or claims 13.19–13.25 number of 13.26 ‘within reasonable time’ 13.14 security ratings, evaluation of 13.20–13.25 substantive freedom from 13.02 substantive law, compliance with 13.02 substantive rights, provision for 13.26 ‘suit at law’ 13.07 territorial and jurisdictional limits of the ICCPR 4.32–4.40 terrorists, suspected 9.104, 13.23 third state, deportation to a 9.112 torture, likelihood of 9.98–9.126, 13.02, 13.09, 13.23 torturers, duty to extradite 9.129 victim requirement 3.41–3.43 war criminals 9.119 women 13.06, 13.15 fair trial, right to a see also access to courts; delay, trials without undue; independent, impartial and competent tribunals; public hearings absence of accused 14.141–14.144 access to legal advice 14.126–14.128, 14.145–14.151 accused, presence of 14.141–14.144 convicted in absentia 14.142–14.144 juveniles, rights of 14.182–1.86 notification of date and place of trial 14.141–14.144 represent oneself, right to 14.85 retrial, availability of 14.143 adjournments 14.118, 14.120, 14.121 adversary proceedings 14.87 age of criminal responsibility 14.183, 21.20 aim of 14.01 another international procedure, consideration under 5.10, 5.11 appeals criminal cases 14.187–14.203 dates of, informing of 14.82 reasoned written decisions 14.89

Index bias, judicial 14.48–14.54 burden of proof civil proceedings 14.87 defendant, on 14.87 in camera trials, justification of 14.104 innocence, presumption of 14.105 self-incrimination 14.179 civil proceedings appeals 14.187 attendance at 14.141 burden of proof 14.87 denial 2.08 expeditious 14.90–14.96 generally 14.01 innocence, presumption of 14.87, 14.105–14.112 participation in person 14.88 reasoned written decisions 14.89 strict liability 14.87 compensation for miscarriages of justice 14.204–14.209 competent representation, guarantee of 14.161–14.168 confessions 14.179, 14.180 confidentiality 14.126 costs of trial 6.28 court order, failure to enforce 14.83 courts customary law, based on 14.53 equality before the 14.01 fact finding capabilities 14.64 family courts 14.65 hostility in the courtroom 14.76 military 14.55–14.59 religious courts 14.53 requisite characteristics of 14.48–14.54 criminal appeals ‘according to the law’ 14.187, 14.190 application for leave 14.192 conviction, review of 14.188, 14.194, 14.198–14.199 evidence, evaluation of 14.189 expeditious hearings 14.202 fresh evidence 14.203 generally 14.187–14.203 judgments, access to documents and reasons 14.194–14.197 legal representation, competence of 14.201 multiple appeals 14.193 requirements 14.188 sentence, review of 14.188, 14.198–14.199 waiver 14.200 writing in 14.191

949 criminal charges definition 14.03–14.05 legal representation prior to 14.113 informed of, right to be 14.113–14.115 sheets and forms, language of 14.177 criminal trials accused, presence of 14.88, 14.141–14.144 appeals 14.22, 14.187–14.203 civil trial, distinguished 14.84 double jeopardy, freedom from 14.210–14.215 equality before the courts 14.22–14.27 expeditious 14.90–14.96 fair, elements of 14.84–14.86 generally 14.01 guarantees 14.01, 14.08, 14.84 innocence, presumption of 14.87 legal representation 14.126–14.128, 14.145–14.151 presence, right to be tried in one’s own 14.88 presumption of innocence 14.87, 14.105–14.112 reasoned written decisions 14.89 retroactive application of laws 14.86 self-incrimination 14.179–14.182 self-representation 14.85 specialist courts 14.11 witnesses, detention of 14.74 custody of children, hearing in relation to 14.93 death penalty 8.52–8.55, 8.72, 8.101 defence, preparation of 14.116–14.128 adequate facilities for 14.116, 14.122–14.125 adequate time for 14.116, 14.118–14.121 adjournment, failure to request 14.120, 14.121 counsel, right to communicate with one’s own 14.126–14.128 derogations 26.72 detention incommunicado 14.128 preventive 14.111 discontinuance 14.42 documents, access to 14.122–14.125 double jeopardy, freedom from 14.210–14.215 duress 14.179, 14.180 elements of a fair trial criminal trial 14.61–14.62 generally 14.60–14.89 lawyer, right to 14.126–14.128, 14.145– 14.151 equality before the courts 14.01, 14.20–14.28 equality before the law, distinguished 14.21

950

Index

fair trial, right to a (Cont.) equality of arms 14.22, 14.41, 14.42, 14.45, 14.48, 14.79 equality, procedural 14.01, 14.60 evidence accept, failure to 14.77 defence, preparation of the 14.116–14.117 documentary, familiarization with 14.116 exhaustion of domestic remedies 6.09, 6.12,6.20–6.21, 6.40 expeditious hearings generally 14.90–14.96 fairness, meaning of 14.60 family courts, deference to 14.65–14.66 fault, presumption of 14.87 generally 14.01–14.216 guarantees of equality before the courts 14.21 generally 14.01 minimum 14.02 guilt, right not to confess 14.179–14.182 guilty pleas 14.75 hostility in the courtroom 14.76 immunities from suit 14.28 in camera hearings 14.103–14.104 innocence, presumption of civil proceedings, inapplicable to 14.105 generally 14.105–14.112 faceless judges 14.101 law enforcement officials, public statements by 14.105 media publicity 14.75 interpreters free, right to 14.22, 14.116, 14.177–14.178 judges bias of 14.48, 14.67, 14.70 customary law, courts based on 14.53 dismissal 14.48, 14.50 equality before the courts 14.21 ‘faceless judges’ 14.101 fairness in application of judicial power 14.21 impartiality 14.48, 14.67, 14.68 independence of 14.48, 14.50, 14.52 instructions to jury 14.72 judicial tenure 14.51 pluralistic judiciary 14.52 protection from discontented litigants 14.54 religious courts 14.53 separation from the executive 14.48, 14.49 judicial error 14.60, 14.64 juries death qualified 14.571 instructions to jury 14.72

jury trial, no right to 14.02 jurisprudence on, abundance of 14.216 justice to be seen to be done 14.67 juvenile accused age of criminal responsibility 14.183 anti-social behaviour orders 14.186 children’s rights, protection of 14.183 detention facilities 14.184 generally 14.183–14.186 independent investigation of allegations of torture 14.185 military regimes 14.185 parents, inform of detention 14.185 public hearings 14.97 rehabilitation, promotion of 14.183 rights of 14.184 trial as adults 14.183, 14.185 language 24.46 legal aid lack of 6.26 legal representation, choice of 14.149 right to 14.152–14.160 unavailable 14.34 legal representation access to 14.116–14.121 adjournments 14.120, 14.121 brief, right to 14.82 choice, right to representation of one’s own 14.126–14.128, 14.145–14.151 ex officio counsel 14.148 legal aid 14.149 self-representation 14.85, 14.151 sentencing and parole 14.150 communication with lawyer of one’s own choice 14.126–14.128 competent, guarantee of 14.86, 14.148, 14.161–14.168 confidentiality 14.116 court appointed 14.149 criminal charges 14.150 defence, preparation of the 14.116–14.212 discrimination 14.105 legal aid 14.149 military courts 14.55–14.59 trial of civilians by 14.55–14.58 miscarriages of justice, compensation for 14.73, 14.204–14.209 nolle prosequi pleas 14.75 offences, reclassification of 14.150 plea bargain, abuse of 14.73 police 14.21 ill-treatment by 14.81 interviews, recording of 14.179

Index present at his/her trial, accused’s right to be 14.141–14.144 presumption of innocence 14.105–14.112, 14.181, 14.182 adverse publicity 14.105, 14.107–14.109 defendants, degrading presentation of 14.105, 14.110 civil proceedings 14.112 preventive detention 14.11 procedural equality 14.01, 14.60 procedural right as 14.64 prosecutors 14.21 public hearings anonymous witnesses 14.102 appeals 14.97 burden of proof of in camera proceedings 14.104 ‘faceless judges’ 14.101 generally 14.97–14.104 pre-trial decisions 14.100 public, exclusion of 14.97 publicity 14.97, 14.103 written representations 14.99 publicity, adverse 14.105, 14.107–14.109 requisite characteristics of courts, see courts supra reservations 26.12 right to silence 14.181 self-incrimination, freedom from compulsory adverse inferences from silence 14.181 generally 14.179–14.182 technology, effect of 14.182 silence, right to 14.181 speed radar traps 14.182 strict liability, endorsement of the doctrine of 14.87 ‘suit at law’ 14.07–14.20, 14.87 administrative law 14.07 death penalty, commutation 14.20 deportation 14.17–14.18 examples of 14.09–14.20 extradition 14.17–14.18 judicial procedures 14.07, 14.13 nature of the right not status of parties 14.09, 14.19 public service 14.12–14.16 tribunal, characteristics of 14.48–14.54 competence, requirement of 14.48 impartiality, requirement of 14.48 independence, requirement of 14.48 witnesses anonymous witnesses 14.102 attendance 14.169–14.176 co-defendants, torture of 14.80

951

coercion of 14.74, 14.80 detention of 14.74 examination 14.169–14.176 failure to hear 14.78 family, protection of the 16.20, 20.01–20.68 see also family, right to found a; family unity; protection of; marriage adoption 20.10 ancestors 20.14 association, freedom of 19.13 burial sites, development of ancestral 16.06, 20.14–20.15, 24.39 child benefit 20.05 children access to 20.59–20.67 adopted 20.10 Convention on the Rights of the Child 21.02–21.05 protection of 20.02, 21.01 country, right to enter one’s own 12.33 coverage of 20.01–20.05 cultural relativism 1.119 cultural traditions 20.06, 20.07, 20.14–20.15 death penalty 8.51 divorce 20.06, 20.59–20.67 domestic violence 20.01 economic relativism 20.05 exhaustion of domestic remedies 6.34, 6.46–6.47 extended families 20.06 family, lawful interference with 20.01 family life, effective 20.10, 20.11, 20.12, 20.13 family, meaning of 20.06–20.15, 20.68 financial assistance 20.03–20.05 French testing in the Pacific 8.85 fundamental societal institution, as 20.01–20.02 generally 20.01–20.68 government interference 20.03 guarantee 20.02 husbands, foreign 20.18–20.19 immigration 20.10, 20.12, 20.68 interference with 20.68 arbitrary 20.03 government 20.03 legitimate 20.01 unlawful 20.02 legislative measures, adoption of 20.04–20.05 legitimate interference with 20.01 marriage 20.07, 20.09, 20.12 meaning of ‘family’ 20.06–20.15, 20.68 minimal requirements 20.11 minorities, compared with rights of 24.05 non-discrimination 23.31, 23.53, 23.98

952

Index

family, protection of the (Cont.) nuclear families 20.06 parent and child relationship 20.07 positive obligations 20.03 privacy, right to 20.03 residence status 3.40 rights, relationship to other 20.03 same sex relationships 20.08 single parent families 20.06 tax concessions 20.03 unmarried couples 20.06, 20.09 victim requirement 3.30 welfare benefits 20.05 family and home, right to respect for see also privacy, right to alien men and women, different residential status of 16.24–16.25 arbitrariness 16.23 deportation of foreigners diagnosed with HIV/ AIDs 16.26 evictions from settlements 16.21 generally 16.18–16.30 inquiries into family relations 16.22 interferences with 16.18 meaning of family 16.18 meaning of home 16.18 police harassment 16.20 residence 16.24–16.25 tenancy rights, revocation 16.19 workplace 16.18 family, right to found a absolute right, not an 20.49 family planning 20.47 family unity, protection of 20.37, 20.50 fertility treatment 20.49 generally 20.47–20.50 guarantee of 20.47 homosexuality 20.48 limitations 20.48-20.49 marry, right to 20.48 population control, coercive 20.47 reunification 20.37, 20.50 rights, relationship to other 20.47 same sex couples 20.48 time limits 20.49 family unity, protection of children deportation and 20.29–20.32, 20.34 forced removal from parents of 20.29, 20.31, 20.33 protection of 21.35–21.37 de facto residence 20.29 deportation 9.88, 20.24–20.34 DNA testing 20.22

equal treatment 20.18 extradition, expulsion or refoulement 13.02 family life, dysfunctional 20.25 family, right to found a 20.47, 20.50 fraud 20.34 generally 20.16, 20.17–20.37 ‘home’ meaning 20.24 husbands, foreign 20.18–20.19 immigration 20.17–20.37, 20.68 importance of 20.17 interference arbitrary 20.24, 20.26, 20.29, 20.36 lawful 20.24 unlawful 20.24 no other country where couple can live 20.37, 20.38 non-discrimination 20.18, 20.19 nuclear family 20.21 parents, deportation where children are citizens 20.29–20.32, 20.34 refugees 20.22, 20.23 residency rights 20.16, 20.17–20.37 reunification 20.17, 20.20–20.24, 20.35, 20.38 , 21.35–21.37 sex discrimination 20.18, 20.19 spouses, foreign 20.19 unification 20.17, 20.20–20.24 visas 20.29, 20.33 wives, foreign 20.18 federal governments 1.29 female genital mutilation cultural relativism 1.131 deportation 21.14 extradition, expulsion or refoulement 9.62, 21.14 life, right to 8.43 sex discrimination 23.108 torture 9.18, 9.57, 9.62 female infanticide 8.88 firearms, use of 8.07 First Optional Protocol admissibility 1.51–1.54 another international procedure, consideration under 5.01–5.03, 5.08–5.14 Article 1 1.49, 1.51 Article 2 1.51 Article 3 1.51 Article 5 1.51 backlogs 1.139 burden of proof 6.44–6.48, 14.133 communications under admissibility 1.52 evidence in writing 1.51 individual 1.02, 1.48–1.63

Index joinder of complaints 1.50 merits, consideration of 1.58 continuing violations 2.06–2.22 coverage of 1.48 decisions 1.36 denunciations 26.40, 26.41 exhaustion of domestic remedies 6.07 fair trial 14.63 grave breaches of 1.66 individuals, communications from 1.02, 1.48–1.63 interim measures requests 1.65 interpretation of ICCPR norms 1.68, 1.69–1.78 jurisdiction, personal 1.52 non-cooperation of States 1.62, 1.63 parties to, number of 1.13 procedural rules 1.59 ratione temporis rule 2.06–2.22 ratification of effect on admissibility of complaint 2.04 number of 1.13, 1.59 reservations to the 26.30, 26.33 self-determination refusal to admit complaints on 7.24–7.25, 7.26 victim requirement, narrow definition of 7.24 sources of jurisprudence 1.69 standing in relation to bringing a complaint before the, see victim requirement State’s obligations under, see territorial and jurisdictional limits of the ICCPR State parties 1.13 State succession 26.45 systematic human rights abuse 1.116–1.118 time limits 1.55, 1.56–1.57 fishing and hunting 24.18, 24.20, 24.22, 24.25, 24.31, 24.41, 24.53 foetuses, rights of 3.37 force, use of see use of force forced labour see slavery, servitude and forced labour, freedom from forum shopping 5.02 freedom of assembly see assembly, freedom of freedom of association see association, freedom of freedom of information 18.22–18.29 freedom of movement 12.01–12.46 see also country, freedom to leave a; country, right to enter one’s own; residence aliens 12.12–12.16 ‘lawfully within the country’ 12.13–12.14 asylum seekers 12.15 coverage 12.01 extraterritoriality 12.06 generally 12.01–12.46

953

horizontal effect of 12.05 human rights investigators 12.16 limits to equality, conformity with 12.28 examples of 12.32 generally 12.27–12.32, 12.46 grounds for 12.28 guidelines on permissible limitations 12.28 judicial proceedings 12.25 national security 12.28, 12.30 ‘non-arbitrary measures’ 12.27 non-discrimination, conformity with 12.28 proportionality 12.28 public health 12.28, 12.30 public morals 12.28, 12.30 public order rights and freedoms of others 12.28, 12.30 journalists, freedom of expression and 12.29 meaning of 12.01 national security 12.28, 12.30 non-governmental organizations, members of 12.16 private interference, protection from 12.05 terrorist, suspected 12.31 territory of a state, within 12.02–12.06 visas 12.16 women 12.05 freedom of the press see press, freedom of the freedom to leave a see country, freedom to leave a gender inequality see sex discrimination gender reassignment 10.24, 20.44 genital mutilation see female genital mutilation genocide 26.17, 26.35 genuine elections see also voting balloting, transparency in 22.51 campaign expenditure, reasonable limitations on 22.50, 22.52 distorted outcomes 22.35, 22.54 electoral authority, independent 22.50 flaws in, inquiries into 22.59 generally 22.50–22.54, 22.57 international observers 22.51 media, influence of 22.56–22.59 non-discrimination 22.41 periodic 22.53 political parties, influence of media on 22.56–22.59 secret ballots 22.55 time period between elections 22.53 violence, to be free of 22.50 voting 22.01

954

Index

genuine elections (Cont.) will of the electors 22.50–22.59 women, participation in 22.48 gerrymandering 22.35 graffiti 18.14 guardianship 21.51, 21.56 guilty pleas 14.75 habeas corpus, right of access to courts 11.72 access to documents 11.87 access to lawyers 11.83–11.86 aliens awaiting extradition 11.88 arrest 11.70 asylum seekers 11.85–11.86, 11.91–11.92 boat people 11.91–11.92 designated persons, detention of 11.91–11.92 control orders 11.99 court access to courts 11.72 generally 11.70–11.78 judicial review, prompt 11.70–11.78 military officers, reviews by 11.89 ministries, reviews by 11.88 proceedings must be before a 11.88–11.90 delay judicial review without 11.70–11.78 permissible 11.74–11.78 reasons 11.75 ‘without delay’ 11.75, 11.76 detention aliens awaiting extradition 11.88 arbitrary 11.79, 11.81, 11.84, 11.92–11.94, 11.96 challenging, effectiveness of right to 11.91–11.99 immigration detainees 11.86 incommunicado, accused held in 11.73, 11.83 ‘lawfulness’ 11.92 psychiatric hospitals, in 11.77, 11.106 review of 11.70–11.82 documents, access to 11.87 extradition, aliens awaiting 11.88 failure to seek review of detention 11.72 generally 11.70–11.99 hearings in relation to, delays in 11.70 immigration detainees 11.85–11.86 incommunicado detention, accused held in 11.73, 11.83 judicial review, prompt 11.71 lawfulness of meaning of 11.92–11.94, 11.97–11.98 opportunity to challenge 11.70–11.71 lawyers, access to denial of 11.8311.86

generally 11.83–11.86 immigrants, illegal 11.85–11.86 legal aid 11.84–11.85 length of habeas corpus proceedings 11.78 liberty, right to 11.70–11.90 meaning of 11.70 military prison, held in 11.89 ministries, reviews by 11.88 preventive detention sentence 11.79–11.82, 11.90, 11.106 procedural rights, violation of 11.95, 11.96 psychiatric hospital, compulsory detention in 11.77, 11.106 review of lawfulness, without delay 11.73– 11.82 review of, length of time before 11.73–11.82 right to challenge, effectiveness of 11.90– 11.99 harassment opinions, right to hold 18.06 public service, equal access to 22.74 searches 16.27 sexual 23.108 hate speech anti-Semitism 18.83, 18.84, 18.86, 18.91 Committee on the Elimination of Racial Discrimination 18.85–18.89 education, vicarious liability and 18.84 expression, freedom of absolute guarantees 18.73 compatibility with 18.74, 18.75 financing of racist activities 18.85 gender 18.71 generally 18.01, 18.72–18.94 historical fact, denial of 18.94 Holocaust, denial of 1.114, 18.90–18.94 investigations 18.88 justiciability 18.79–18.81 laws against 18.75 minarets, advertising campaign against 18.75 nationality discrimination 23.102 non-discrimination 23.102 race discrimination 18.87, 18.88, 23.102 racial hatred 18.85–18.89 racial, religious or nationalistic vilification 18.72, 18.75, 18.76, 18.79, 18.82–18.84 religion, freedom of, 23.102 reservations 18.73 scope 18.76 telephone messages, via 18.83 terms, use of racially offensive 18.89 thought and conscience, freedom of 18.84

Index vicarious liability 18.84 violent crimes against sexual minorities 18.76 war propaganda 18.72, 18.77–18.78 illegal wars, for 18.78 meaning 18.78 UN Charter, sanctioned by the 18.78 health see also medical treatment; public safety, health or morals child exploitation 21.47 cruel inhuman or degrading treatment 9.126 deportation 9.126 detention, conditions of 9.132, 9.134, 9.138, 9.153, 9.200, 9.202, 9.206, 9.215, 9.229, 9.230 life, right to 8.12, 8.24, 8.37, 8.40 resources, lack of 8.37, 8.81 torture 9.71, 9.146 HIV/AIDS 8.39, 8.82, 23.25 Holocaust, denial of 1.143, 18.90–18.94 home, right to respect for see family and home, right to respect for homelessness 8.82 homosexuality censorship 18.68 criminal offences in relation to 3.48, 16.50–16.52 cultural relativism, and 1.130, 1.131 expression, freedom of 18.62, 18.68 family, protection of the 20.08 family, right to found a 20.48 indecent behaviour between persons of same sex, censorship of media programmes 18.68 marry, right to 20.42 non-discrimination 16.49–16.52, 23.54–23.56 pensions 23.56 privacy, right to 1.98, 16.49–16.52 public morals 16.50–16.52, 18.68 same sex relationships 20.08, 20.42, 20.48, 20.68, 23.54–23.56 honour and reputation attacks on 16.42–16.48 confession falsely made by State authorities 16.43 expression, freedom of 18.44–18.47 generally 16.41–16.48 homosexuals 16.49 honour crimes 8.43 meaning of 16.41, 16.48 privacy, right of 16.41–16.48 psychiatric assessments 16.42 tax status 16.44 ‘unlawful’, meaning of 16.06, 16.48

955

horizontal obligations in ICCPR 1.106–1.115, 4.19–4.24 due diligence 1.111, 1.113 generally 4.19–4.24 non-state obligations 1.113 religion, freedom of 17.21 State responsibility 1.107, 1.109 vertical implementation of ICCPR 1.106 vertical obligations 1.110 honour crimes 8.43 hospitals detained persons to humane treatment, right to 9.136–9.140 habeas corpus 11.70, 11.77 psychiatric, detention in 1108–11.09, 11.21–11.23, 11.77, 11.106 housing 12.07, 23.98 HRC see Human Rights Committee Human Rights Committee admissibility, consideration of 1.52 backlogs 1.139 communications under First Optional Protocol admissibility of 1.52–1.54 merits of, consideration of 1.58–1.59 non-discrimination 1.72 kconcluding observations 1.40 conservatism 1.77, 1.80 creation of 1.02, 1.31 criticisms of 1.143 cultural relativism 1.125–1.137 decisions consensus, by 1.35 effect of on laws of states 1.60 enforcement of 1.61, 1.62 interpretation of 1.61 judicial spirit of 1.61 majority 1.35 merits 1.58–1.59, 1.61 precedent, role of 1.78–1.81 quality of 1.141 reasoning of 1.141 delay 1.139 disrespect for 1.141 domestic law and 1.25–1.30 economic relativism 1.123–1.124 economic, social and cultural rights, interpretation of 1.122 election of members 1.31 emergency reports 1.39 enforcement problems with 1.93–1.94 European Court of Human Rights, compared with 1.77 evidence 1.51

956

Index

Human Rights Committee (Cont.) facts, finding of 1.51 failure to implement the views of 1.61 First Optional Protocol individual communications under 1.48–1.63 follow-up procedure 1.61 fourth instance doctrine 1.53–1.54, 14.63 functions of 1.36 funding 1.140 General Comments of generally 1.36 interpretation of ICCPR 1.117 jurisprudence, source of 1.43–1.44 interim measures, requests for 1.64–1.67 interpretation of ICCPR 1.41–1.42, 1.61, 1.69–1.81, 1.87–1.99 inter-state complaints 1.36, 1.45–1.47 liberalism 1.77 majority opinions 1.35 meetings 1.31, 1.33, 1.139 members 1.31–1.36 monitoring 1.36, 1.37, 1.142, 1.144 norms of the ICCPR, interpretation and development of 1.68–1.118 part-time character of 1.139 positive rights and obligations 1.99–1.105 precedent, role of 1.78–1.1 procedure, rules of 1.35 interim measures 1.65 quality of the output of 1.138–1.143 radicalism 1.77 reporting system 1.37–1.42 resources, lack of 1.133 Special Rapporteurs 1.40, 1.42 State Party Reports 1.37–1.42 supervisory mechanisms, secondary source, as 1.25 systematic human rights abuse 1.116–1.118 UN treaty system 1.140 vertical obligations under the ICCPR 1.106 humane treatment, right of detained persons to see detained persons to human treatment, right to humanity, crimes against hunger 8.75 hunting 24.22, 24.29, 24.53 ICC see International Criminal Court ICCPR see International Covenant on Civil and Political Rights ICERD see International Convention on the Elimination of All Forms of Racial Discrimination ICESCR see International Covenant on Economic, Social and Cultural Rights

identity children, protection of 21.52 minorities, rights of 24.01, 24.26, 24.51 privacy, right of 16.03–16.05 social 24.01 illegitimacy children, protection of 21.25. 21.55, 21.61 non-discrimination 21.25. 21.55, 21.61, 23.79 illiteracy 22.33 immigration country, freedom to leave a 12.17–12.26 country, right to enter one’s own 12.33–12.45 detention 1108, 11.09, 11.24–11.29 expulsion 12.35, 13.09 family, protection of the 20.10, 20.12, 20.68 family, unity of the 20.24–20.34, 20.68 habeas corpus 11.70–11.82 legal representation, access to 11.83, 11.85–11.86 sex discrimination 23.51 immunities 14.28 equality before the courts 14.28 heads of state 14.28 State immunity 1.93 imprisonment for inability to fulfil a contract, freedom from see contract, freedom from imprisonment for inability to fulfil a impunity statutes 9.87 incest 20.44, 21.42 incitement to racial, religious or national hatred see hate speech incommunicado detention 9.141–9.144 aggravated form of detention as 9.142 duration of 9.141-9.144 duty to prevent 9.154–9.155 habeas corpus 11.73, 11.83 humane treatment of detainees 9.218, 9.221 torture 9.141–9.144 types of violation 9.155 incompatible reservations under the ICCPR customary law 26.16, 26.24, 26.25, 26.26 determination of 26.17-26.22 effect of 26.35–36.37 European Court on Human Rights 26.20, 26.33 First Optional Protocol 26.30–26.33 generally 26.17–26.39 Genocide Convention 26.17 guarantees, supportive 26.28 Human Rights Committee’s competence to determine 26.2026.22, 26.33 Inter-American Court of Human Rights’ views on 26.20 International Court of Justice 26.17

Index International Law Commission’s views on 26.18, 26.21 Guidelines 26.05, 26.28, 26.36 objects and purpose26.23, 26.24 peremptory human rights, reservations relation to 26.25, 26.26 Second Optional Protocol 26.34 specific and transparent 26.28 UN treaty bodies’ views, no legal force 26.21 valid reservations 26.29 Vienna Convention on the Law of Treaties 26.16, 26.17, 26.18, 26.21 independent, impartial and competent tribunals 14.48–14.54 absolute right to 14.48 appeals 14.59 customary law, courts based on 14.53 emergencies 14.55 establishment of 14.48 executive, independence of the judiciary from 14.49 generally 14.48–14.54 judges appointment of 14.48 dismissal 14.48, 14.49 election of 14.51 executive, independence from the 14.49 impartiality 14.48 independence of 14.48, 14.49, 14.50, 14.52 pluralistic 14.51 promotion and transfer 14.48 qualifications 14.51 removal 14.50, 14.51, 22.73 tenure 14.51 threats and reprisals 14.54 training 14.52, 14.65 military courts 14.55–14.59 procedural guarantees 14.54, 14.59 public hearings 14.97–14.104 religious courts 14.53 separation of powers 14.49 indigenous persons see minorities, rights of indirect discrimination see also nondiscrimination 23.39–23.47 individual communications under First Optional Protocol admissibility 1.48–1.57 complaints, joining of 1.50 criteria 1.52 evidence 1.51–1.54 Human Rights Committee 1.48–1.63 ICCPR breaches of 1.48–1.63 incompatible communications 1.52

957

interim measures 1.64–1.67 merits, consideration of the 1.58–1.59 non-cooperation of State 1.62–1.63 public censure 1.61 publicity for failure to implement 1.61 remedies, recommendation of 1.61 time limits 1.55, 1.56–1.57 individuals, rights of collective rights and 1.120, 3.11–3.13 cultural relativism 1.120 duties of individuals 1.121 economic and social rights 1.122 generally 1.120–1.121 horizontal obligations 1.106–1.115 natural rights 1.03–1.08 standing to bring a complaint, see victim requirement systematic human rights abuse 1.116–1.118 victim requirement 3.10 inequality, systemic causes of 23.105 dominant norms, reinforcement of 23.104 gender-based 23.107-23.111 generally 23.104–23.112 infant mortality 8.75, 8.82, 8.49, 21.15 infanticide 8.99 inhuman or degrading treatment see cruel, inhuman and degrading treatment or punishment innocence, presumption of adverse publicity 14.108, 14.109 bail, denial of 14.111 burden of proof 14.105 civil proceedings 14.112 criminal proceedings 14.112 defendants, presentation in court 14.105, 14.110 detention, preventive 14.111 fair trials 14.105–14.112 generally 14.105–14.112 media coverage 14.105 miscarriages of justice, compensation for 14.206 pre-trail detention 14.105 public assertions of guilt 14.107 self-incrimination 14.179–14.182 Inter-American Commission on Human Rights 5.03, 5.05, 5.07 Inter-American Court of Human Rights 1.11, 24.38, 26.18 interception of communications 16.31, 16.34, 16.35, 16.37–16.38 interim measures requests 1.64-1.67 internal affairs of other countries, interfering with 7.22

958

Index

International Convention on the Elimination of All Forms of Racial Discrimination see also Committee on the Elimination of Racial Discrimination affirmative action 23.83 civil and political rights 1.12 denunciations 26.40 educational subsidies for schools 23.60 generally 23.03, 23.14 hate speech 18.85–18.89 non-discrimination 23.03 private sector, application to 23.111 racial segregation 23.111 reservations 26.40 reverse discrimination 23.85 International Court of Justice general 1.141 Namibia 22.06, 22.45 reservations under the ICCPR 26.17 self-determination 7.12 Wall in Occupied Palestinian Territories 4.12, 12.06 International Covenant on Civil and Political Rights 1.12–1.14, 1.25–1.30, 1.68–1.118, 1.125–1.137 see also First Optional Protocol; Second Optional Protocol abuse of rights by states, protection from 1.23 admissibility see admissibility of complaints under the ICCPR adoption of 1.01 alteration of duties under 26.01 Article 1 see self-determination, right of Article 2 1.24 Article 2(1) 1.16–1.19 see also nondiscrimination Article 2(2) 1.20 Article 2(3) 1.24 Article 2(3)(a) 1.21 Article 2(3)(b) 1.21 Article 2(3)(c) 1.21 Article 3 1.19. 1.24 see also sex discrimination Article 4 1.22, 1.24 see also derogations from the ICCPR Article 5 1.23, 1.24 Article 5(2) 1.23 Article 6 see life, right to; killed by the state, right not to be Article 7 see cruel, inhuman and degrading treatment or punishment; torture Article 8 see slavery, servitude and forced labour, freedom from

Article 9 see liberty, right to; security of person, right to; criminal charges, right to be informed of; habeas corpus Article 10 see detained persons to humane treatment, right to Article 11 see contract, freedom from imprisonment for inability to fulfil a Article 12 see freedom of movement Article 13 see extradition, expulsion and refoulement Article 14 see fair trial, right to a Article 15 see retroactive criminal law, freedom from Article 16 see recognition as a person before the law, right to Article 17 see privacy, right to Article 18 see religion, freedom of and thought and conscience, freedom of Article 19 see expression, freedom of; opinion, freedom of Article 20 see war; hate speech Article 21 see assembly, freedom of Article 22 see association, freedom of; strike, right to Article 23 see family, protection of the; marry, right to Article 24 see children, protection of Article 25 see political and public participation, rights of Article 26 see also non-discrimination Article 27 see minorities, rights of articles of when making complaints, unnecessary to refer to 6.10 breaches of 1.48–1.63 declarations see declarations under ICCPR denunciations see denunciations under ICCPR derogations see derogations under ICCPR destruction of the rights of others, rights must not be used for the 1.23 direct effect 1.30 domestic law implementation into 1.16, 1.20, 1.25–1.30 relationship with 1.25–1.30 economic, social and cultural rights 1.122 entry into force of 1.13 extraterritoriality see territorial and jurisdictional limits of the ICCPR horizontal obligations 1.106–1.115 Human Rights Committee, establishment of 1.02 implementation of 1.16, 1.20, 1.25–1.30 importance of 1.01 individuals, rights of 1.21

Index interpretation of generally 1.69–1.77 international law, relationship with 1.87–1.99 positive obligations 1.100–1.105 precedent 1.78–1.81 systemic human rights abuse 1.116–1.118 jurisdictional limits of see territorial and jurisdictional limits of the ICCPR list of substantive rights 1.14 lower the level of protection, must not be used to 1.23 monitoring of 1.02, 1.36, 1.37, 1.142 municipal law incorporation into 1.16, 1.20 relationship with 1.16–1.20 natural rights 1.03–1.08 norms, interpretation and development of see norms of the ICCPR, interpretation and development of obligations generally 1.69–1.77 horizontal 1.106–1.115, 4.19–4.24 limitations 1.82–1.86 indirect effect 1.30 international law, relationship with 1.87–1.99 positive 1.100–1.105 precedent 1.78–1.81 systemic human rights abuse 1.116–1.118 parties to, number of 1.13 personal scope of 1.18 positive rights and obligations 1.100–1.105 ratification of 1.01, 1.13, 26.01 remedies under 1.21–1.24 domestic 1.02, 1.21 reservations see reservations under ICCPR rights under absolute 1.82 limitations on 1.82–1.86 substantive 1.14 Rule 86 requests see interim measures requests savings provisions 1.23 supporting guarantees 1.15–1.24 universal coverage of 1.01 Universal Declaration of Human Rights 1948 1.09 vertical obligations 1.106–1.115 International Covenant on Economic, Social and Cultural Rights Convention on the Rights of the Child, overlap with 21.04 cultural/economic relativism 1.125 denunciations 26.40 economic relativism 1.133

959

generally 1.10, 1.125, 7.01 non-discrimination 23.14 obligations under 1.17 progressive implementation of rights under 1.11, 1.17 strike, right to 19.29 Universal Declaration of Human Rights 1948 1.10 International Criminal Court child soldiers 21.53 crimes against humanity 25.16, 26.67 ‘disappearance’ 1.98, 2.13 France 22.17 ne bis in idem 14.124 witnesses, anonymity of 14.102 International Law Commission reservations under the ICCPR 26.05, 26.18, 26.19, 26.21, 26.36 state responsibility 1.107 international organizations see also particular organizations (eg International Law Commission) Kosovo 4.27, 26.50 State’s liability for the acts of 4.25–4.31 succession 26.50 international procedure, consideration under another see another international procedure, consideration under interpretation and development of ICCPR norms see norms of the ICCPR interpretation and development of interpreters charge sheets and forms 14.177 criminal charge, right to be informed of a 11.50, 11.51 fair trials 14.113, 14.177–14.178 free assistance of, right to 14.177–14.178 inter-state complaints 1.36, 1.45–1.47 intra-territorial violations 4.04 investigate, duty to 25.11–25.15 Convention against Torture 9.168–9.173 disappearances 8.27–8.34 hate speech 18.88 ICCPR 1.103 killed by the state, right not to be 8.16–8.22 non-discrimination 23.117 police 9.162–9.163, 9.169, 9.170, 9.172 race discrimination 23.117 remedy, right to administrative mechanisms for 25.02 duty to investigate 25.11–25.15 extradition not to hamper 25.15 forced disappearances cases 25.14

960

Index

investigate, duty to (Cont.) security of the person 11.03, 11.05 terrorists, assassination of 8.06 torture 9.161–9.173 journalists economic development not justifying political repression 18.60 freedom of association 19.31 freedom of expression 18.18 information sources, limited protection not to disclose 18.18 libel suits against 18.47 national security 18.49, 18.60 parliamentary press facilities, access to 18.61 right of access to information 18.26 right to receive information 18.28 judges anonymous 14.101 appointment of 14.44, 14,48 bias of 14.48 competence 14.52 criminal charges judge or other officer authorized by law 11.56–11.57 disqualification 14.48 dismissal 14.48, 14.50 election of 14.51 equality before the courts 14.21 executive, independence from the 14.48, 14.49 faceless 14.101 fair trials 14.48–14.54 impartiality requirement 14.48 independence of 14.48 misconduct 14.51 non-discrimination 14.10, 23.12, 23.120 pluralism amongst the bench 14.52 political influence 14.48 presidential control of judiciary 14.49 promotion 14.48 public service, equal access to, 22.01, 22.61 qualifications 14.48, 22.62 removal 14.48, 14.51 safeguards of independence 14.48 separation of powers 14.49 tenure of 14.48, 14.51 threats from discontented litigants, protection from 14.54 training 14.52 transfer 14.48 women 14.52 judgments, access to 14.187 judicial review appeals in criminal cases 14.187–14.203

exhaustion of domestic remedies 6.16, 6.26 habeas corpus 11.70 suit at law 14.07–14.20 time limits 6.12 juries death qualified 14.71 instructions adequacy 14.63 requirement of fairness 14.60 women, exclusion of 3.02 jurisdictional limits of the ICCPR see territorial and jurisdictional limits of the ICCPR jurisprudence see Human Rights Committee; particular rights and freedoms jus cogens 26.68 juvenile offenders adults, separation from 9.237, 21.06 age of criminal responsibility 9.237, 14.183, 21.19, 21.20 anti-social behaviour orders 14.186 Beijing Rules 9.237 detention conditions in 9.237–9.238, 14.183 facilities 14.184 humane treatment, right to 9.237–9.238 fair trials 14.183–14.186 life imprisonment without parole 9.239 military justice system 14.185 public hearings 14.97 rehabilitation 14.183, 21.06 kidnapping of children 21.50–21.51 killed by the State, right not to be see also death penalty arbitrary killing 8.02–8.04 armed forces, arrest by 8.18 arrest, during 8.03, 8.05, 8.17, 8.18, 8.20, 8.24 assassination attempted 8.15 terrorists, of suspected 8.06 compensation 8.17 criminal law ‘remedies’ 8.17 custody, deaths in 8.12 death row, killing of prisoners on 8.08 defectors, killing of 15.16–15.17 disproportionate circumstances 8.03–8.04 escape, prevention of 8.05 European Convention on Human Rights 8.05 excessive force 8.09, 8.13, 8.22 exhaustion of local remedies 8.25–8.26 firearms, use of 8.07, 8.10, 8.20, 8.24 generally 8.02–8.26

Index Human Rights Committee, evidential approach to 8.13 ‘in cold blood’ 8.08 intentional killings 8.08, 8.09 investigate, state’s duty to 8.10, 8.11, 8.12, 8.16–8.21 killings by private persons or entities, duty to investigate 8.14 law enforcement, proportionate requirements 8.05 ‘lawful’ killing under municipal law 8.03 lethal force 8.07, 8.15 negligent killings 8.08, 8.09 perpetrators unknown 8.14 police arrest 8.03, 8.05, 8.20, 8.24 firearms, use of 8.10 military police 8.17 train, state’s duty to 8.35 use of force, discretion 8.07 prison officers duty to train, state’s 8.35 killings by 8.12 prisoners death row of, killing on 8.08 duty to protect, state’s 8.36–8.40 suicides among 8.37 proportionate circumstances 8.05 protect life, duty to 8.01 punish offenders, state’s duty to compensation for state’s failure 8.17 criminal law ‘remedies’ 8.17 generally 8.8.22–8.26 recklessness, killings resulting from 8.44 retroactive criminal law, freedom from 15.16 security forces 8.02, 8.22 self-defence 8.05 suicides in prison 8.37 targeted killings 8.06 terrorists, assassination of suspected 8.06 train police and prison officers, duty to 8.36 unintentional killings 8.08 ‘unlawful’ killing 8.04 use of force 8.05–8.10, 8.13 police 8.07, 8.10, 8.13 security forces 8.22 labour disputes see strike, right to laissez-faire economics 1.06 land blockade of population with a territory 12.06 burial grounds, sacred 16.05, 20.14–20.15, 24.39 burning of houses 9.12, 9.39

961

communal 24.25–24.26 compensation for 24.28, 24.36, 24.40 culture 24.22–24.43 demolition of homes 12.07 economic development 24.27–24.39 exhaustion of domestic remedies 6.05–6.06, 6.22, 6.24 expropriation 23.68, 23.70, , 24.25–24.26, 24.28 extinguishment 24.20 hydroelectric development 24.36, 24.41 impact, limited 24.30 indigenous people 12.28, 24.15–24.17, 24.40–24.43 exhaustion of domestic remedies 6.05–6.06, 6.22, 6.24 self-determination 7.18 logging 24.28, 24.31, 24.32 Lubicon Lake Cree Indians 24.27–24.28, 24.35 Muotkataunturi Herdsmen 24.29–24.30 oil and gas exploration 24.27–24.28, 24.35 quarrying 24.29–24.31 race discrimination 24.74 reindeer husbandry 24.18–24.19, 24.23, 24.24, 24.29–24.30, 24.32, 24.42 reserves 12.09, 24.12–24.14, 24.19, 24.22 resources 24.02, 24.12, 24.16, 24.22, 24.40 road construction 24.31 self-determination 7.18 language access to one’s own, restricted 18.10, 18.39–18.41, 24.46–24.52 administration, exclusive use of English 18.42 administrative proceedings 24.49–24.50 advertising signs, use of in 18.10, 18.39–18.41, 23.45, 23.89, 24.07–24.09, 24.51 choice, of one’s own 18.12 citizenship 22.03 courts, in 18.12, 24.46, 24.49–24.50 criminal charges informed of, right to be 11.45 sheets and forms of 14.177 dual 18.10, 18.39–18.41, 23.45, 23.89, , 24.07–24.09, 24.51 elections 22.49 expression, freedom of 18.10, 18.12, 18.39–18.42, 18.52, 24.46 fair hearings 24.49 generally 24.46–24.52 indirect discrimination 23.45 minorities 18.10, 18.28, 18.39–18.42, 23.45, 24.01, 24.07, 24.12, 24.46–24.52 national language 24.50

962

Index

language (Cont.) national language textbooks, publication of 18.16–18.17 non-discrimination 18.46, 23.39, 23.61, 24.50 official 18.42, 23.61, 24.49, 24.52 political and public participation, rights of 22.04, 22.05–22.06 protection of, limits to 24.46 public and private use of 18.41 public functions 18.12 public order 18.41 religious minorities 24.49 restricted access to one’s own 24.12 reverse discrimination 23.89 right to use 24.46, 24.49 rights, relationship to other 24.46 road signs, of 18.14 Sami 24.47 use of a particular 24.46 victim requirement 3.13, 3.47 lawyer, right to one’s own see also legal representation appeal, on 14.148 communication with counsel of accused’s choice 14.126–14.128 court appointed lawyer, accused forced to accept 14.148 counsel, ex officio 14.148 criminal charge and sentence 14.150 denial of 14.126–14.128, 14.145–14.151 generally 14.145–14.151 incommunicado detention, where accused located in 14.128 legal aid, under 14.148, 14.155 representation, competent 14.161–14.168 self-representation and 14.145, 14.151 leave a country see country, freedom to leave a legal aid, right to access to courts 14.33–14.36 appeals 14.157, 14.158 civil proceedings, in 14.160 constitutional motions 6.26 costs 14.37 criminal proceedings, in 14.153–14.155, 14.157–14.160 access to courts 14.33 failure of lawyer to appear in 14.153 trivial offences 14.154 death penalty 14.158 death row prisoners 14.34 economic, social and cultural rights 6.26 exhaustion of domestic remedies 6.28–6.30 fair trials 14.52–14.160 generally 14.152–14.160

gravity of the offence 14.152, 14.154, 14.155 guarantee 14.160 habeas corpus 11.84 insufficient means, where defendant has 14.152–14.160 legal representation 14.52–14.160 choice of 14.155 competence 14.161–14.168 effectiveness 14.152, 14.153 means tested 14.156 merit in accused’s case, lack of 14.157 offences capital 14.158 gravity of 14.152, 14.155 trivial 14.154 preliminary hearings 14.158 representation, competency of 14.161–14.168 success, objective chance of 14.157 trivial offences 14.154 legal proceedings see access to courts; criminal offences and proceedings; fair trial, right to a; independent, impartial and competent tribunals legal professional bodies, regulation of 14.07 legal representation access to 11.55, 14.126–14.128 adjournments 14.78, 14.80 appeals 14.157, 14.162 choice of counsel 14.145–14.151 communication with 14.126–14.128 comparison of legal aid and private lawyers 14.152, 14.168 competent standard of, guarantee of 14.152, 14.161–14.168 confidentiality 14.126, 16.36 court-appointed representatives 14.161 criminal charges, rights of persons detained on 11.55, 14.113 criminal proceedings appeals 14.157, 14.161 competent standard, guarantee of 14.161–14.168 death penalty cases 14.158 fair trials 14.152–14.160 failure to appear at 14.153 stages of, all 14.153 death penalty cases 14.158, 14.163 defence case 14.76–14.80 time to prepare 14.164 14.167 detention 14.153 conditions of 9.131 effective 14.152, 14.153, 14.162 errors, State responsibility for 14.163 exhaustion of domestic remedies 6.13

Index extradition, expulsion or refoulement 13.18 fair trials 14.116, 14.126–14.128, 14.145–14.151, 14.161–14.160 habeas corpus 11.83–11.86 incompetent 14.153, 14.163, 14.164, 14.166 legal aid, under 14.52–14.160, 14.162–14.165 privately retained 14.148, 14.166 requests for 14.127 State, provided by the 14.148, 14.152, 14.162–14.165 victim authorisation 3.27 witnesses 14.145 legitimacy see illegitimacy lethal injection, death penalty by 9.95, 9.96 liberty, right to administrative detention 11.15, 11.28 ‘arbitrariness’ 11.15–11.20 ‘against the law’, compared with 11.18, 11.24, 11.29 asylum seekers 11.24–11.29 bail, arbitrary denial of 11.18 boat people 11.24 death penalty commutation not arbitrary re-sentencing 11.19 detention 11.16, 11.17, 11.24–11.27 meaning of 11.15 national security detention 11.30 pre-trial detention 11.18 prohibition on 11.01, 11.15–11.20 private security services 11.20 repentance requirement of detainees 11.17 sentencing, mandatory 11.17 arrest arbitrary 11.01, 11.12–11.14 police, discretion of the 11.13 political views, for 11.17 preventive 11.31–11.37 remand 11.15 unlawful 11.12–11.14 asylum seekers 11.24–11.29, 21.10 criminal charges, rights of persons detained on 11.45–11.52 city limits, confinement to 11.10 control orders 11.10, 11.37 court control 11.08 criminal charges 11.08–11.09 informed of, right to be 11.45–11.52 dangerousness, future 11.34 detention after sentence served 11.17 duration 11.16, 11.24–11.26 mandatory detention 11.27 preventive detention 11.31–11.37 deportation, pending 11.24

963 deprivation of liberty 11.01–11.02 arbitrariness, prohibition on 11.01 compensation, right to 11.31 generally 11.01–11.02, 11.08–11.10 law, procedures established by 11.11 severe 11.10 state control, legitimate form of 11.08 domestic law, lawful under 11.91 drug addiction 11.08 educational purposes 11.08 freedom of movement 11.10 generally 11.01–11.02, 11.08–11.10 guarantees under 11.01, 11.08 habeas corpus 11.70–11.99 immigration, for the purposes of 11.08, 11.09, 11.24–11.29 indeterminate detention 11.31 legality, requirement of 11.11–11.14 limitations on, permissible arbitrariness, prohibition on 11.01, 11.11–11.14 generally 11.01, 11.11–11.14 legality, requirement of 11.01, 11.11–11.14 meaning of 11.08 mental illness 11.08, 11.09, 11.21–11.23 military discipline, detention for the purposes of 11.09, 11.89 movement restriction 11.10 national security detention 11.30 parole, revocation or refusal of 11.38–11.39 preventive detention 11.09, 11.31–11.37, 11.106, 14.111 procedural guarantees 11.01, 11.08, 11.31 psychiatric treatment, detention for the purposes of 11.09, 11.21–11.23, 11.77, 11.106 quarantine measures 11.09 refugees, determination of status of 11.24–11.29 release, previously ordered 11.17 remedy, right to an effective 11.08 residence restrictions 11.10 security of the person, distinguished 11.04 sentences alternatives to 11.44 arbitrary 11.17, 11.30 ‘civil proceedings’ continuing completed sentence 11.34 commutation of, informed of 11.19 mandatory 11.17 proportionality 11.40–11.44 severe deprivations of liberty 11.10 subsequent period of detention 11.17, 11.34 substantive guarantees 11.01, 11.08, 11.31 territory of a state, within the 12.02–12.03

964

Index

liberty, right to (Cont.) travelling freely around a state, prohibition on 11.10 vagrancy 11.08, 11.17 violations of, examples of 11.15–11.20 life, right to 8.01–8.104 see also death penalty; killed by the state, right not to be abortion 8.90–8.95, 8.90–8.95, 8.104 arbitrary deprivation, protection against 8.02–8.04, 8.100 armed conflict, minimize risk of 8.83–8.87 assassination attempts by State agents 8.15 duty to investigate 8.17, 8.18 terrorists, of alleged 8.06 burden of proof 8.12 childbirth, deaths during 8.88 children 8.44 communicable diseases 8.40 criminalization of the killing of human beings 8.42–8.43 deaths in custody 8.08, 8.13, 8.19, 8.22, 8.24, 8.37, 8.38 deprivation, dealing with economic 8.81 deprivation of life by criminal acts, state duty to prevent and punish 8.02 detainees, duty to protect 8.08, 8.38, 8.40 disappearances 8.27–8.34 duty to investigate 8.20, 8.27, 8.29 duty to prevent 8.27 duty to provide a remedy 8.29 duty to punish 8.23 unconfirmed deaths 8.28, 8.31–8.34 disease 8.38 dowry killings 8.88 environmental and socio-legal aspects 8.75–8.82 environmental protection as inherent aspect of 8.78 epidemics, measures to overcome 8.75 European Convention on Human Rights 1.96–1.97, 8.05 euthanasia 8.96–8.99, 8.104 exception to 8.46 expectancy, measures to increase life 8.75, 8.82 female genital mutilation 8.43 female infanticide 8.88 family planning 8.94–8.95 firearms, availability of 8.43 French nuclear testing in the Pacific 8.85 future and present generations 8.76 generally 8.01–8.100 healthy environment, deprivation of 8.77–8.80 HIV/AIDS mortality 8.39, 8.82

homelessness 8.82 homicide, unjustified 8.102 honour crimes 8.43 Human Rights Committee fact finding approach to cause of death 8.12, 8.13, 8.16 hunger 8.75 illegal abortion 8.92, 8.94 infant mortality 8.75, 8.82 infanticide 8.99 intentional killings 8.03, 8.08 investigation of State killings attempted assassinations 8.17 disappearances 8.20 duty to 8.10, 8.11, 8.16–8.21 law enforcement lethal use, proportionate use 8.03–8.08 lethal force proportionate requirements of law enforcement 8.03–8.08 life expectancy 8.75, 8.82 lynchings 8.43 malnutrition, measures to overcome 8.75 meaning of 8.01 medical services detainees and 8.38–8.40 lack of money for 8.81 missing persons 8.27 negative component of 8.01 negligence, deaths caused by 8.08, 8.13, 8.44 non-deportation obligations 8.67–8.74 nuclear waste 8.76 nuclear weapons 8.84–8.87, 8.103 police, use of firearms by 8.03–8.05, 8.07–8.11 positive component of duty to control private entities 8.41–8.45, 8.103 duty to protect detainees 8.08, 8.36–8.40 duty to train relevant personnel 8.35 generally 8.01, 8.35, 8.41–8.45, 8.100–4 meaning of 8.01 pregnancy, deaths during 8.88, 8.94, 8.95 prisoners 8.08, 8.13 medical services and 8.38–8.39 suicides 8.36–8.37 private entities, duty to control 8.41–8.45 protection of people’s lives ‘by law’ 8.42–8.43 punishment duty to punish 8.22–8.26 radioactivity, effects of 8.76 recklessness, deaths caused by 8.44 socio-economic aspects of 8.75–8.82 soft law obligation 8.75

Index State agents attempted assassination 8.15 lethal force, use of 8.03–8.13 unknown perpetrators 8.14 unintentional or negligent killings 8.08 State killings attempted assassinations 8.17, 8.18 duty to investigate 8.10, 8.11, 8.16–8.21, 8.100 duty to punish 8.21–8.26, 8.100 duty to prosecute 8.26 duty to provide redress 8.17 remedies 8.25 street children 8.44 suicide assisted 8.96–8.99 prisoners by 8.36–8.37 young females by 8.94 supreme right, as the 8.01 survival requirement 8.75 targeted killings 8.06 torture, meaning of 9.03 train relevant personnel, duty to 8.35 victim requirement 8.91 violence, prohibition on incitement to 8.83 war, participation in 8.83–8.89 water, deprivation of 8.80 widows, burning of 8.88 women 8.88–8.95 logging 24.28, 24.31, 24.32 maintenance of children 21.30–21.31–21.33 majority, age of 21.19–21.22, 21.42 malnutrition 8.75, 21.15 mandatory sentencing 8.48, 8.56–8.57,8.101, 9.244, 11.22, 11.40 marital status ‘breadwinner criterion’ 23.14, 23.43, 23.52, 23.78 common law marriage 23.77 foreign husbands, residency status of 23.51 non-discrimination 23.77–23.79 person before the law, recognition as 10.21 residency 23.51 unemployment benefits 23.15–23.17, 23.78 welfare benefits 23.15–23.17, 23.43–23.44 marriage see also divorce; marital status; marry, right to absolute right 20.45 access to courts, married women and 14.32 age of consent 21.22, 21.42 appropriate steps to achieve equality 20.55 bigamy 20.46 CEDAW Committee 20.56

965

children access to 20.07, 20.58–20.67 equality with regard to 20.53, 20.54 common law 23.77 consent 20.51–20.52 Convention on the Elimination of all Forms of Discrimination against Women 20.56 coercion 20.52 divorce, equality and 20.53, 20.54, 20.56 divorce, right to 20.46 equality in, right of 20.01, 20.53–20.57 generally 20.41–20.46 hierarchy within 20.55 homosexual couples 20.08, 20.42, 20.43 incestuous marriages 20.45 indigenous people, loss of status on marriage of 24.12–24.14 inheritance rights 20.54 inter-religious, condemnation of 17.18 limitations 20.51 matrimonial property 14.15, 20.54 meaning of 20.41 name, right to keep 20.53 nationality, loss of women’s 20.53, 20.54 polygamy 1.131, 20.52 progressive obligation 20.55 property rights 20.54 rape 9.66, 9.160, 20.52 registration of 20.41 religion, freedom of 17.18, 20.41 religious rites 20.41, 20.52 remarry, right to 20.46, 20.52 residence, choice of 20.53 same sex marriage 20.08, 20.42, 20.43 sex discrimination 20.52, 20.55 societal norms, prevailing 20.55 special rights for married couples 20.09 transgender persons 20.44 welfare benefits 23.43–23.44 women 20.52 media broadcasting abuse of power by private owners 18.19 broadcasting licences 18.18 elections, influence on 22.56–22.59 equal access to 18.18 expression, freedom of 18.18–18.20, 18.61 government control 18.19, 18.20 parliamentary press facilities, denial of equal access to 18.61 political parties 22.56–22.59 private ownership 18.19 public funding 18.20 medical experimentation, unauthorized 9.146–9.149

966

Index

medical treatment compulsory provision of 9.148 consent to 9.147, 9.148 death row 9.76 denial of or inadequate 9.26, 9.50, 9.51, 9.76, 9.132, 9.136–9.140 detention, conditions of 9.26, 9.50, 9.51, 9.76, 9.132, 9.136–9.140, 9.147, 9.148 extradition, expulsion or refoulement 9.98 malpractice 8.45 medical records, access to 9.222 pregnant and post-natal prisoners 9.229 prisoners 8.38–8.39, 9.136–9.140 privacy, right of 16.39–16.40 torture 9.148 withholding 9.08 mental distress and disabilities citizenship, revocation 9.77 Committee against Torture 9.68 cruel, inhuman and degrading treatment or punishment 9.68 death penalty 8.32, 9.70, 9.76 death row phenomenon 9.79–9.85, 9.90, 9.223 detention arbitrariness 9.74 caused by 9.72, 9.73 duration 9.75 psychiatric treatment, for 11.09, 11.21–11.23, 11.77, 11.106 extradition, expulsion or refoulement 9.101, 9.125 generally 9.68–9.77 habeas corpus 11.77 liberty, right to 11.08–11.09, 11.21–11.23, 11.77 medical experimentation, unauthorized 9.146 medical treatment, failure to provide 9.76 missing persons, uncertainty as to whereabouts 9.68 person before the law, recognition as 10.19 privacy, right of 16.42 psychiatric assessments 14.48, 16.42 psychiatric hearings 14.14 psychiatric hospitals detention in 9.195, 11.08–11.09, 11.21–11.23, 11.106 habeas corpus 11.77 humane treatment in 9.52, 9.217 psychiatric treatment, for 11.09, 11.21–11.23, 11.77, 11.106 suit at law 14.14 sentencing 11.21 torture 9.69 meaning of 9.04, 9.05 victims, mental health of 9.52 voting 22.25

mercy, prerogative of 6.04, 8.61, 9.224 migrant workers domestic service 10.10 access to courts 14.29 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 1.114 minorities, rights of 24.10 movement, freedom of 4.02 restrictions on 10.10 military service see also conscientious objection, right of association, freedom of 19.15 child soldiers 21.52–21.54 civilian status and 23.32–23.34 conscripts, 12.25, 17.43, 23.32–23.34 country, freedom to leave a 12.25 detention 11.08 conditions of 9.131–9.134 habeas corpus 11.70 habeas corpus 11.70 humiliation of new recruits 9.52 independent, impartial and competent tribunals 14.48–14.54 investigations, impartial 9.161–9.173 judges of military courts 14.55 military courts 14.55–14.59 nationality 23.75-23.76 non-discrimination 23.32–23.33, 23.57–23.59, 23.75–23.76 passports, denial of 12.25 slavery, servitude and forced labour, freedom from 10.05 state responsibility 4.11, 4.16, 4.17 territorial and jurisdictional limits of the ICCPR 4.11, 4.16, 4.17, 4.31 minorities, rights of assimiliationist pressures 24.54 burial grounds 24.39 citizenship 22.03 classification 24.13 collective rights 24.03, 24.18–24.21 constrictions on meaning of minority groups, State cannot set 24.10–24.13 consultative procedures 24.35, 24.38 Convention on the Elimination of Racial Discrimination 24.38, 24.40 coverage of 24.01 culture of 22.15, 24.01, 24.02 24.22–24.52 common 24.06 confiscation of communal land 24.25–24.26 economic activities 24.23, 24.25–24.26 fishing rights 24.20 protection 24.22–24.26

Index reindeer husbandry 24.18–24.19, 24.23 traditional beliefs and practices 24.24 Declaration on Indigenous Rights 24.15, 24.38 derogations 26.67 differentiation, legitimate 24.53 diversity, valuing 24.55 economic development’s effect on culture 24.27–24.39 cultural rights, superiority of 24.27 free prior and informed consent 24.38 margin of discretion 24.30 participation of minority representatives 24.35 proportionality 24.33 ‘exist in a state’ 24.10, 24.11 fair hearings, language and 24.49 families 24.05 fishing rights as part of culture 24.20, 24.34 generally 24.01–24.55 groups 24.03, 24.18–24.21 hunting and fishing 24.53 identity 24.01, 24.16 indigenous land right claims 24.40–24.43 immigrant communities 24.11 indigenous people 24.02, 24.11, 24.12–24.14 birth registration 21.57 burial grounds 16.05, 20.14–20.15, 24.39 Declaration on Indigenous Rights 24.15, 24.38 discrete group as 24.15 domestic remedies 6.04, 6.05, 6.06, 6.18, 6.22 exacerbating factor in treatment 9.60, 9.202, 14.24, 16.56, 22.37, 23.106 fishing rights 24.20, 24.34 free prior informed consent 24.37, 24.38, 24.40 fourth instance court 1.54 generally 24.15–24.17 interim orders 1.65 justice system, overrepresentation 11.40 land rights 24.40-24.43 movement, freedom of 12.09 negotiators, mandate of 24.21 offensive speech 18.89 oral evidence 1.51 outstanding claims, settlement of 24.21 police 9.48 political rights 22.16, 22.19, 22.20 self-determination 7.18, 7.20, 7.21 individual rights 23.01–24.03, 24.18–24.21 language 24.01, 24.46–24.52 access to 24.12 administration services 24.49, 24.52 advertising 18.10, 18.39–18.42, 24.07, 24.51 common 24.06

967 court proceedings 24.49 education 24.48 expression, freedom of 24.46 names 24.51 national 24.50 newspaper for minorities 24.47 non-discrimination 24.50 recognition by the State 24.49 limits to rights 24.29 logging 24.31, 24.32 Lubicon Lake Cree Indians 24.27–24.28, 24.35 Maliseet Indian 24.12–24.14 Mapuche 24.36 meaning of 24.06–24.11 membership of a 24.12–24.14 migrant workers 24.10 ‘minority’, meaning of 24.06–24.11 modern life, adaptation to 24.24 Muotkatunturi Herdsmen 24.29–24.31 non-discrimination 23.07, 24.11 compared with right of 24.04 numerical inferiority 24.07–24.09 oil and gas exploration 24.27 political and public participation, rights of 22.16–22.22, 24.05 positive measures of protection 1.74, 24.53–24.55 privacy, compared with right of 24.05 quarrying 24.29–24.30 ratione temporis rule 2.07, 2.17 reasonable and objective criteria 24.12, 24.53 reindeer husbandry 24.18–24.19, 24.29–24.30, 24.31, 24.32, 24.42 religion 17.02 common 24.06 freedom of 24.05, 24.44 moral education and 17.50, 23.60, 23.81, 23.91 non-discrimination 23.07, 24.44 protection of 24.01, 24.44–24.45 reservations in relation to 20.14, 24.39, 26.13, 26.25 residents 12.07 permanent or non-permanent 24.10–24.11 rights, compared with other 24.02–24.05 Sami cultural rights 24.18–24.19, 24.23, 24.24, 24.29–24.30, 24.31, 24.32 land rights 24.41, 24.42 language 24.49 self-determination, right to compared with 24.02 internal 7.13

968

Index

minorities, rights of (Cont.) self-identification 24.11 social identity of 24.01 traditional beliefs and practices 24.24 Traveller communities 22.34, 24.11 voting 22.38 water extraction 24.37 minors see children, protection of miscarriages of justice 14.204–14.209 morals see public safety, health or morals; religious and moral education movement, freedom of see freedom of movement municipal courts, reluctance to interfere with the decisions of 20.62–20.64 municipal legislation see domestic law, ICCPR and names child’s right to a 21.55–21.60 Convention on the Rights of the Child 21.55 Hindu 17.36 privacy, right of 16.03, 16.04, 16.13–16.14 religion, freedom of 17.36 sex discrimination 23.53 surname, changing of or refusal to allow change of 16.03, 16.04, 16.13–16.14, 17.36, 23.53 national security aliens, security ratings of 13.20–13.25 anti-state sympathies 18.51 assembly, freedom of 19.07, 19.12 association, freedom of 19.16 country, freedom to leave a 12.22, 12.23, 12.28, 12.30 country, right to enter one’s own 12.44 criminal courts, special 23.124 demonstrations 18.51 evidence 13.19 expression, freedom of 18.48–18.54 extradition, expulsion or refoulement 13.19–13.25 labour disputes 18.52 meaning 18.48 non-discrimination 23.124–23.128 official secrets 18.48 public order 18.64 religion, freedom of 17.30 residence 12.10 strikes 18.52 nationality aliens and 12.36 child’s right to a 21.61–21.62 country, right to enter one’s own 12.33, 12.36, 12.37, 12.39, 12.42

elections 23.74 marriage, loss of, on 20.53 non-discrimination 23.08, 23.74–23.76, 23.102 stripping of 12.33, 12.37 trade unions, holding office in 19.22 vilification on the grounds of 18.72, 23.12 naturalization 22.02–22.03 native title rights see minorities, rights of natural rights 1.03–1.08 natural wealth and resources 7.19–7.21 negligence deaths caused by 8.44–8.45 torture, meaning of 9.06 newspapers concentration of ownership of 18.19 government economic boycott of critical 18.29 means of expression, as 18.08 registration of 18.28 non-derogable rights contract, imprisonment for failure to fulfil a 10.17, 26.64 crimes against humanity 26.67 cruel, inhuman and degrading treatment 9.01, 26.64 fair trial, right to 26.67, 26.72 functional 26.71 generally 26.64–26.73 implicit 26.67, 26.68, 26.80 limitations to 26.66 medical and scientific experiment, freedom from 26.64 nature of 26.65–26.66 peremptory norms of international law 26.67 proportionality and 26.68 recognition as a person before the law, right to 10.25, 26.64 retroactive criminal law, prohibition on 15.02, 26.64 slavery, servitude and forced labour, freedom from 10.02, 26.64 thought, conscience and religion, freedom of 17.02, 26.64 torture 9.01, 26.64 non-discrimination, rights of see indirect discrimination; race discrimination; reverse discrimination; sex discrimination abortion 8.57, 23.109 administration of the law 23.120 administrative convenience 23.57 advantaged groups 23.07 affirmative action 23.83–23.86

Index age private sphere 23.100 reasonable and objective test 23.62–23.64 AIDS/HIV 23.31 ‘any other status’, meaning of 23.25–23.29, 23.122 arbitrary distinctions and behaviour 23.65, 23.69, 23.120–23.121, 23.128 autonomous right 23.15 budgetary constraints 23.23 burden of proof 23.130 caste and analogous systems 23.93 children generally 21.23–21.24 illegitimate 21.25, 21.55, 21.61, 23.29, 23.79 citizenship 22.02–22.03, 23.75 citizens living abroad 23.28 civilian compared with military status 23.32–23.33, 23.34 class 23.36 conscientious objectors 17.23, 23.07, 23.32–23.33, 23.57–23.59 conscripts 23.32, 23.57 Convention on the Elimination of all Forms of Discrimination Against Women 23.03, 23.24, 23.85, 23.107–23.110 Convention on the Protection of Rights of Persons with Disabilities 23.03 cultural relativism 1.119 de jure equality 23.16 derogations 26.62–26.63 descent, on the grounds of 23.10, 23.111 differentiation of treatment 23.04, 23.06, 23.14 equally bad treatment 23.70 permissible 23.48–23.86 proportionality 23.48 reasonable and objective test 23.22, 23.48 disability 21.22, 23.03, 23.31, 23.77 ‘discriminatory’, compared with arbitrary 23.120–23.121 distinctions ‘any other status’ 23.25–23.29 grounds of 23.25, 23.35–23.38 reasonableness of 23.22, 23.35, 23.62–23.64 relevant 23.28, 23.30 domestic violence 23.108 dominant societal values 23.103 dwarfism 23.09 economic and social rights, protection of 23.15, 23.18, 23.19–23.24 education 21.18, 21.24 allowances23.81 public and private 23.29, 23.60, 23.81

969 religious schools 23.07, 23.60, 23.81 State’s duties to promote nondiscrimination 23.113–23.116 effective remedy, right to an 23.103, 23.117, 23.118–23.119 elections 22.41, 23.74 equal protection of the law 23.16, 23.120 equality before the courts 23.120, 23.124, 23.125, 23.126, 23.127 equality before the law 23.15, 23.16, 23.38, 23.120–23.130 ‘equality’, compared with 23.05 equalizing down 23.119 European Convention on Human Rights Article, compared with 23.17 expropriation 23.68, 23.70 fair trials 14.105, 23.124, 23.127 family name 23.53 private relationships 23.98 responsibility 23.31 fishing rights 23.71–23.73 generally 23.01–23.131 grounds, prohibited 23.25–23.38, 23.121–23.123 groups of people 23.25 guarantees 23.01, 23.16, 23.17 hate speech 23.102 hereditary titles 23.10 homelessness 23.31 homosexuality 23.31, 23.54–23.56 identity checks 23.50 illegitimacy 21.23, 21.39, 23.79 immutable characteristics 23.36 incitement to 18.76, 23.01 individuals, separate 23.26 intent 23.08, 23.09, 23.14 International Covenant on Economic, Social and Cultural Rights, overlap 23.13 International Convention on the Elimination of all Forms of Racial Discrimination 23.03, 23.10, 23.24, 23.85 intersectional discrimination 23.37 intersex 23.31 investigations 23.117 languages 18.31, 23.61 less favourable treatment 23.39 malice, without 23.08 marital status 23.77-23.79 meaning of 23.04–23.12 military service 23.32–23.33, 23.57–23.59, 23.75 military status, civilian status and 23.32–23.33, 23.34

970

Index

non-discrimination, rights of (Cont.) minorities advantaged group, as 23.07 language 23.61 rights of, compared with 23.07, 24.50 nationality 23.74–23.76 ‘other status’ 23.26–23.39 pension rights marital status 23.79 military services 23.54 same sex relationships 23.54–23.56 permissible and impermissible differentiated 23.48–23.86 political and public participation, rights of 22.02–22.04, 22.59 political limits to 23.128–23.129 political opinion 22.67, 22.68, 22.69, 23.99 positive discrimination 23.83 positive obligations 23.05, 23.95, 23.96 pregnancy 23.31 principle above the law, as 23.16 privacy, right of 16.25, 16.53–16.57 private-sector discrimination, measures to combat 23.95–23.103 prohibited grounds 23.25–23.38 property reasonable and objective test 23.65–23.73 proportionality 23.48 physiotherapists, types of 23.122 promotional duties on states 23.84, 23.113– 23.116 public bodies, arbitrary behaviour by 23.121 public service, applications for position in 22.61, 22.65 quasi-public sphere 23.97, 23.98 racial profiling 23.50 rape systemic discrimination 23.106 reasonable and objective test 23.04, 23.43, 23.45, 23.49–23.82 religion 17.02, 17.27, 17.38, 23.57–23.60 education 17.52–17.54 funding for schools 23.60 hate speech 23.102 schools 23.07, 23.60 remedies 23.103, 23.117, 23.118–119 restitution of confiscated property 23.65, 23.67, 23.69, 23.70, 23.23.123 restrictions 23.15 reverse discrimination 23.87–23.94 rights other, relationship with 23.02, 23.13–23.15 ‘respect and ensure’ 23.95 root of human rights abuses, as 23.01

rural locality 23.31 same sex relationships 23.54–23.56 schools religious 23.07, 23.60 students, public and private 23.36, 23.60 scope of 23.13–23.24 segregation, compared with 23.11 sexuality discrimination 23.54–23.56 societal values 23.104 stateless persons acquiring citizenship 23.31 status, distinct groups linked by 23.26 substantive rights 23.01 systemic inequality 1.85, 23.104–23.112 traditions, long-standing 23.53 unintentional discrimination 23.08 victim of systemic discrimination 23.105 vilification 23.12 voting rights, in 22.35 wealth 23.36 welfare benefits 23.10, 23.14, 23.19, 23.23, 23.33, 23.44, 23.52, 23.78 non-governmental organizations another international procedure, consideration under 5.03 association, freedom of 19.13, 19.18, 19.19 registration requirements 19.18 standing 3.14–3.15 norms of the ICCPR, interpretation and development of cultural relativism 1.119–1.136 death penalty 1.64, 1.80 economic relativism 1.125–1.136 European Court of Human Rights 1.96–1.98 generally 1.69–1.77 horizontal obligations 1.106, 1.110–1.114, 4.19–4.24 Human Rights Committee jurisprudence communications, subject matter of 1.70–1.72 conservatism 1.77 fourth instance court doctrine 1.75 inconsistent opinions of 1.73, 1.74 international law 1.87–1.99 precedent 1.78–1.80 sources of 1.69–1.76 statistics 1.70–1.71 subject matter 1.70–1.72 war 1.99 international law 1.87–1.99 limitations to ICCPR rights 1.82–1.86 positive obligations 1.100–1.1.05 precedent 1.78–1.80 proportionality 1.84–1.85 systematic human rights abuse 1.116–1.118 vertical obligations 1.106–1.109, 1.115

Index nuclear power French nuclear testing 7.24, 8.85 life, right to 8.83–8.87, 8.103 prohibition 8.83 radioactivity, deaths caused by 8.76 self-determination 7.24 victims 3.34–3.35, 8.83, 8.87 oaths 17.18 obscenity 18.71 official secrets 18.48 oil and gas exploration 24.27–24.28, 24.35 OP see First Optional Protocol opinion, freedom of 18.02, 18.05–18.07 pardons death penalty 8.46, 8.57, 8.61–8.64 miscarriages of justice 14.150, 14.204 parents abuse by 21.41 access to 20.58–20.67, 21.29–21.34 alternative care to, state’s duty to provide 21.38–21.39 apportionment of responsibility 21.26 education affecting, children as 21.15, 21.18 children abuse of, by 21.41 as 21.17 education affecting, children as 21.15, 21.18 forced removal from 20.38–20.40 neglect 21.41 protection of 21.15–21.18, 21.26–21.39, 21.55–21.61 Convention on the Rights of the Child 21.03 neglect 21.41 poverty 21.16 religious views of 17.28–17.31, 21.18 rights and duties of 21.03 standing 3.33–3.34 working outside home 21.27 Paris Standards 26.52, 26.54 parliamentary privilege 18.32 parole conditions 3.39, 15.07, 15.11, 15.15 passports administrative cost of 12.19 confiscation of 4.14 consulates 12.20 country, freedom to leave a 12.19–12.21, 12.25 country, right to enter one’s own 12.35 denial of 12.19–12.21, 12.25, 12.35 loss of 12.35

971

military service, denial for unperformed 12.25 territorial and jurisdictional limits of the ICCPR 4.14 pensions disability 14.07, 14.09–14.10 former citizens 23.38 judicial review 14.07, 14.09–14.10 military 23.54–23.55, 23.76 nationality 23.76 non-discrimination 23.18, 23.30, 23.38, 23.54–23.56, 23.76, 23.79 suit at law 14.07, 14.09–14.10 widows 23.30 peoples see also minorities, rights of colonial 7.10, 7.16 criteria, lack of a universal list of 7.06 meaning of 7.06–7.08 natural resources and wealth, right to enjoy and utilize 7.19–7.21 self-determination, right of external 7.09–7.12 generally 7.01–7.26 internal 7.08, 7.13–7.18 person, right to recognition before the law see recognition as a person before the law, right to police arrest 8.03– 8.05, 8.07–8.11, 11.14 assembly, freedom of 19.05 association, freedom of 19.15 criminal charges, rights of persons detained on 11.53 custody conditions in 9.131–9.135, 9.141–9.144 elections 22.47 firearms 8.10 interviews, recording of 14.179 killed by the state, right not to be 8.03– 8.05, 8.10, 8.11, 8.16–.26, 8.100 training 8.11, 8.35, 9.150 use of force 8.07, 8.10, 8.13 political and public participation, rights of see also elections; public service, equal access to; voting accountability 22.01, 22.13, 22.75 apartheid 22.06 bribery 22.23 citizens, confinement of rights to state 22.01, 22.02 citizenship, concept of 22.02–22.04 Committee on the Elimination of all Forms of Discrimination Against Women 22.59 corruption 22.23 coverage of 22.01

972

Index

political and public participation, rights of (Cont.) cultural activities of minorities, protection of 22.05 democracy 22.07–22.08 direct participation in 22.16–22.23 equality 22.05, 22.61–22.74 executive 22.14 generally 22.01–22.75 government accountability to citizens 22.01 compatible political systems of 22.08 power, exercise of 22.14 indigenous people, representatives of 22.16, 22.19 indirect participation through elected representatives 22.12–22.15 inequality, redressing 22.57 language 22.03, 22.06 legislature 22.14 minorities, rights of 22.03, 22.05, 22.16–22.19, 24.05 naturalization 22.02–22.03 nature of the right 22.05–22.06 non-citizens 22.04 public affairs concept of 22.07–22.11 direct participation 22.16–22.23 indirect participation 22.12–22.15 political rights 22.05–22.06 political systems 22.08–22.09, 22.14 public participation, general right of 22.07–22.23 public service, right of access to 22.01, 22.61–22.74 remedies, availability of 22.18 representation elected representatives 22.12–22.15 exercise of government power 21.14 self-determination, right of 7.13, 7.25, 22.05–22.06 systemic deficiencies 22.59 undemocratic institutions 22.15 under-participation 22.59 under-representation 22.59 women 22.59 political expression arrest for 11.17 elections 22.56 freedom of 18.09, 18.10, 18.60, 18.81 hate speech 18.72 non-discrimination 22.67, 22.68, 22.69, 23.99 public service, equal access to 22.67, 22.68, 22.69

political parties anti-democratic 18.53 association, freedom of 18.53, 19.13–19.15, 19.33, 22.10 bans on 15.04, 19.14, 22.45 censorship 22.56 elections 22.42, 22.45, 22.56–22.59 expression, freedom of 18.53, 18.60, 18.83, 22.58 fascist party 18.52, 19.14, 22.45 freedom of the press 22.56 genuine elections 22.56 government influence on the media 22.59 media influence 22.56–22.59 military service 19.15 police 19.15 political elites 22.57 private sector media companies 22.58 public affairs, conduct of 22.10 recognised 22.42 retroactive criminal law, freedom from 15.04 victim requirement 3.16 political rights see civil and political rights polygamy cultural relativism 1.132 equality in marriage 20.53 marry, consent to 20.52 population transfers 12.33 pornography child exploitation 21.42, 21.43, 21.46 expression, freedom of 18.71 positive discrimination see reverse discrimination positive rights and obligations children, protection of 21.08 detention, conditions of 9.200, 9.225–9.231 disappearances 8.27 economic, social and cultural rights 1.100 examples of 1.100, 1.101 family, protection of the 20.03 generally 1.100–1.105 horizontal obligations in ICCPR 1.106–1.115 Human Rights Committee 1.103 ICCPR 1.100–1.105 life, right to 8.01, 8.37, 8.75 meaning of 1.100–1.105 minority rights 1.103, 24.53–24.54 non-discrimination 23.05, 23.95, 23.96 privacy, right of 16.15–16.17 private assaults, prevention of 9.19 self-determination 7.22 torture 9.150–9.154, 9.159–9.187 poverty children

Index exploitation 21.44 protection of 21.16 life, right to 8.81, 8.82 powers of attorney 3.26 precedent exhaustion of domestic remedies 6.25–6.26, 6.49 norms of the ICCPR, interpretation and development of 1.78–1.81 pregnancy children, protection of 21.17 deaths during childbirth 8.94–8.95 detention, conditions of 9.229 education 21.13 medical treatment of prisoners 9.229 privacy, right of 16.53 rape 8.55, 9.57, 9.59 sex discrimination 23.31 tests 16.53 press see media broadcasting; press, freedom of the press, freedom of the broadcasting licences 18.18 expression, freedom of 18.15, 18.18, 18.28 freedom of information 18.27 generally 18.18 government control 18.19, 18.20 government subsidies, provision of 18.20 importance of 18.15 journalists 18.18 defamation 18.46 media ownership 18.19 political parties, media influence on 22.56 pre-trial detention budgetary constraints, due to state 11.63 delay, trials without undue 14.63 entire period prior to trial, held in detention for the 11.59 length of 11.58–11.63 miscarriages of justice 14.208 reasonable time, what constitutes a 11.60 seriousness of offence, relevance of 11.62 total length of 11.59 prisoners censorship 9.221, 16.31–16.35 correspondence, interference with 3.03, 16.31–16.35 criminal charge, in a language understood by the prisoner 11.45–11.52 exhaustion of domestic remedies 6.21, 6.45 forced labour 10.01, 10.04 language 11.45–11.52 life, right to 8.08, 8.36-8.40 medical treatment 9.136–9.140

973

opinion, freedom of 18.07 parole, discrimination and 23.128 pregnant, medical treatment of 9.229 privacy, right of 16.08 religion, freedom of 17.16 remand prisoners, separation of 9.232–9.236 Standard Minimum Rules for the Treatment of 9.198 suicides 8.37 training of prison officers 8.35, 9.150 voting rights 1.74, 9.246, 22.27–22.29 women 9.212, 9.229 privacy, right to see also family and home, right to respect for anti-abortion laws 16.53–16.56 arbitrary interference with 16.01, 16.04, 1606–16.14, 16.38, 16.39, 16.62 autonomy, individual 16.01, 16.53 burial grounds, development of sacred 16.05, 20.14–20.15, 24.39 censorship prisoner’s mail 16.08 complaint system, provision of 16.17 computer technology and 16.58–16.59 confidentiality professional duties of 16.36–16.38 correspondence, interference with 16.08, 16.31–16.35 data protection 16.58–16.60 DNA testing 16.61 family, protection of the 20.03, 20.14 gender and 16.53–16.57 generally 16.01–16.62 homosexuals 16.49–16.52 honour and reputation generally 16.16.41–16.48 terrorist suspects 16.46, 16.47 ‘unlawful’, meaning of 16.06, 16.48 horizontal obligations in ICCPR 1.114 identity, interference with person’s 16.03–16.05 interception of communications 16.31, 16.34, 16.35 interference with arbitrary 16.03, 16.04, 16.06–16.14, 16.38, 16.39, 16.62 authorization of 16.06, 16.07, 16.09 decisions in relation to, approach of 16.15 discretion 16.12 ‘discriminatory’ 16.25 identity 16.03–16.05 law, precise and circumscribed 16.07 ‘lawful’ 16.08, 16.48 proportionality 16.10, 16.12

974

Index

privacy, right to (Cont.) reasonableness of 16.10–16.11 remedies for 16.16–16.17 unlawful 16.06–16.09 lawyers, duty of confidentiality of 16.36, 16.37 limitations to 16.06–16.14 meaning of privacy 16.01–16.05 medical doctors, duty of confidentiality 16.36 medical treatment 16.39–16.40 medicine given without consent 16.40 minorities, compared with rights of 24.05 morals, public 16.50–16.52 names of persons 16.03, 16.04, 16.13–16.14 non-discrimination 16.25, 16.53–16.57 non-governmental entities 1.114 personal data protection hindering legitimate collection 16.60 positive measures, obligation to take 16.15–16.17 pregnancy tests 16.53 ‘privacy’, meaning of 16.01–16.05 private sector, remedies in 16.16 protect the, state obligations to take measures to complaint system, provision of 16.17 remedies, provision of 16.16 psychiatric assessments 16.42 public morals 16.50–16.52 rape 16.53, 16.55–16.56 remedies, provision of 16.16–16.17 reproductive decisions 16.53 reputation, honour and 16.41–16.48 searches of homes 16.27–16.30 sex discrimination 16.53 sexual privacy 16.49–16.52 sterilization 16.53 surveillance 16.31, 16.35 transgender persons, recognition of 16.57 telephone tapping 16.07, 16.34, 16.35, 16.37, 16.38 ‘unlawful’, meaning of 16.06-16.09 wire tapping 16.07, 16.31 women 16.53 private detention institutions 9.196–9.199 privatization 22.63, 22.64 procedure see also another international professional bodies, regulation of 14.13 property see also land access to courts 14.29 divorce 20.55 matrimonial 14.29, 20.55 non-discrimination 23.65–23.73, 23.108 suit at law 14.07

prostitution child exploitation 10.11–10.12, 21.15, 21.42, 21.46 from 10.11–10.12 women 10.11 protests see demonstrations and protests provincial law 1.29 psychiatric hospitals, humane treatment in 9.52, 9.195, 9.217 detention 11.21–11.23 habeas corpus 11.77, 11.87 public emergencies see emergencies public executions 9.97 public health see public safety, health or morals public hearings 14.97–14.104 public morals see public safety, health or morals public order assembly, freedom of 19.07, 19.09–19.12 association, freedom of 19.16 country, freedom to leave a 12.14, 12.22, 12.23, 12.24–12.25, 12.28, 12.30 derogations 26.57 expression, freedom of 18.55–18.64 meaning 18.56 national security 18.64 ordre public 18.56 public participation, rights of see political and public participation, rights of public prosecutors 11.56–11.57 public safety, health or morals assembly, freedom of 19.08 derogations 26.57 European Convention on Human Rights 18.69 expression, freedom of 18.65–18.71 homosexuality 16.50–16.52, 18.68 pornography 18.71 privacy, right of 16.50–16.52 religion, freedom of 17.31–17.34, 17.37 public service, equal access to age 22.71, 22.72 autonomous organs, delegation of functions to 22.64 conditions of tenure 22.69 demotion 22.70 dismissal from 22.68–22.74 employment in, guarantees of 22.61 equality, general terms of 22.61, 22.65, 22.71 generally 22.01, 22.61–22.74 judges, educational requirements on 22.62 non-discrimination 22.61, 23.99 age 22.71, 22.72

Index political opinion 22.66, 22.67, 22.68 sex discrimination 22.71, 22.72 oath of conscience 22.66 political opinion, discrimination on the grounds of 22.66, 22.68 positive discrimination 22.67 privatization 22.63, 22.64 public service, meaning of 22.63 reinstatement 22.73 restrictions 22.62 retention of employment in 22.69 reverse discrimination 22.61, 22.65, 23.87, 23.94 women in 22.59 quotas elections 22.48 residency 20.29 reverse discrimination 23.93, 23.94 women 22.48, 23.93 race discrimination see also International Convention on the Elimination of All Forms of Racial Discrimination affirmative action 23.83 anti-semitism 18.90–18.94 apartheid 22.06 educational duties of states 23.113–23.116 effective remedy, right to an 23.118 hate speech 18.72–18.89, 23.102 Holocaust denial 1.71, 1.74, 1.143, 18.90–18.94 investigations 23.117 law enforcement officials 23.85 nationality 23.102 offensive words 23.12, 23.102 pensions 23.76 private sector 23.97, 23.102 quotas 23.83 racial vilification 23.12 remedies 23.103, 23.118–23.119 reverse discrimination 23.87–23.94 Roma 23.112 segregation 23.11 systemic inequality 23.104–22.112 racial hatred see hate speech radioactivity 8.76 rape abortion 8.92, 9.59 detention when in 9.05, 9.27 lack of laws in relation to 9.59 marital rape 9.66 marriage, coercive 20.52 pregnancy resulting from 8.92, 9.59 privacy, right of 16.53, 16.55–16.56 torture 9.18, 9.57, 9.59, 9.60

975

ratification colonies, extension to 4.05–4.10 First Optional Protocol 1.13 ICCPR 1.01, 1.13, 26.01 Second Optional Protocol 1.13 ratione temporis rule admissibility of complaints under ICCPR 2.01–2.23 affirmation doctrine 2.14–2.22 basis of 2.01 CEDAW Committee liberal approach, to 2.22 compensation 2.14 continuing violations affirmation of 2.14–2.22 generally 2.06–2.13 criminal investigation refused 2.09 date of occurrence of events 2.03–2.22 disappearances 2.11–2.13, 2.17 dismissal from public service 2.18–2.21 entry into force of ICCPR 2.03, 2.05 event causing complaint, knowledge of 2.02 expropriation 2.14, 2.17 First Optional Protocol continuing violations 2.06–2.22 entry into force of 2.03 individual communications under 1.48 individual complaints 2.01 violation occurring after entry into force, of 2.04 violation occurring before entry into force, of 2.03, 2.13 meaning of 2.01 minority rights 2.07, 2.17 procedural decision confirming violating behavior 2.10 public service , dismissal from 2.18–2.21 remedies, right to 2.11 retrospectivity 2.01 sterilization without consent 2.22 recklessness, deaths caused by 8.44 recognition as a person before the law, right to children 10.19, 10.24 contract, capacity to 10.19 detention, persons in administrative 10.23 disappearances 10.22 generally 10.18–10.24, 10.25 gender reassignment 10.24 guarantees under 10.18 Jews in Nazi Germany 10.18 jurisprudence, lack of 10.17 legal proceedings, capacity to enter into 10.19 limitations on 10.19 interpretation of 10.19 mental disabilities 10.19, 10.24

976

Index

recognition as a person before the law, right to (Cont.) ratione temporis rule 10.22 sex discrimination 10.20–10.21 state obligations under 10.19 sue and be sued, capacity to 10.19 right, non-derogable 10.25, 26.64 rights, overlap with other 10.25 victims 10.22 women, married 10.20–10.21 refoulement see extradition, expulsion and refoulement refugees see also asylum children, protection of 21.62 country, right to enter one’s own 12.33 detention, whilst determining the status of 11.24–11.29 extradition, expulsion or refoulement 9.98–9.126 Refugee Convention 9.116–9.119 repatriation of 12.33 religion, freedom of see also religious and moral education adoption of a religion or belief, freedom to 17.12–17.13 absolute right as 17.13, 17.18 apostasy, Islamic law and 1.131, 17.12 ‘belief’ meaning of 17.02 non-religious and religious belief 17.10 blasphemy 18.67 change one’s religion, freedom to 17.12 children coercion of 17.20 protection of 21.18 clothing 17.17, 23.02 coercion 17.18–17.27 conversion 17.10 cults 17.06, 17.11 cultural relativism, and 1.119, 1.127 establishment of a religion 17.38–17.40 funding 17.39 generally 17.01–17.57 hate speech 17.11, 18.72–18.94 ‘have or adopt’, meaning of 17.12 headgear 17.19, 23.42 historical foundations 17.03 horizontal effect 17.21 ideology 17.25 indirect discrimination 23.46 inter-religious marriages, limitations on 17.18 manifesting of religion or belief, freedom from 17.14–17.17 absolute right, not an 17.15 active component 17.15

generally 17.02, 17.14–17.17 interference with rights of others 17.02 limitations on the 17.28–17.37 meaning of 17.17, 17.19, 17.28 national security and 17.30 necessity 17.29 observance and practice 17.14, 17.15 prescribed by law 17.28, 17.29 proportionality 17.29 public morals 17.37 public order 17.35–17.36 public safety and health and 17.31–17.34 worship, concept of 17.14 minorities, rights of 17.02, 23.06, 24.01, 24.05, 24.07, 24.44–24.45 names, change of 17.36 narcotic consumption and religion 17.04, 17.05, 17.34, 23.46 national security 17.30 new religions 17.08 non-discrimination 17.27, 17.38, 23.02, 23.04, 23.07, 23.12, 23.25, 23.36, 23.42, 23.46, 23.57–23.60 non-traditional religions 17.08 oaths 17.18 political parties, expulsion from 17.24 prisoners 17.16 conversions of, encouraging 17.10 private coercion 17.21–17.25 proselytism 17.22–17.23 public morals 17.37 public order 17.35–17.36 public safety and health 17.31–17.34 Rastafarianism 17.04, 17.05, 17.34 registration of religion 17.33 ‘religion’ establishment of 17.38–17.40 meaning of 17.03–17.11 religious symbols 17.20 rights, other, relationship to 17.02, 17.30 sex discrimination 17.27, 23.02 Sikh turban 17.31, 17.32, 17.35, 23.42 state, interference 17.26 state religion 17.38, 17.39, 17.40 surname, changing of 17.36 traditional religions 17.02, 17.38 United Nations Declaration on the Elimination of All Forms of Discrimination based on Religion 17.01 women 17.26, 17.27 abortion, threats of religious groups 17.26worship, concept of 17.14 religious and moral education academic freedom 18.70

Index atheists 17.51 children’s rights 17.54, 21.18 compulsory 17.51 exemptions 17.51, 17.52 expression, freedom of 18.70 funding, preferential 17.55, 23.60 generally 17.50–17.56 minority religions 17.54, 23.60 neutrality and objectivity 17.50 non-discrimination 17.52, 17.53, 17.54, 23.07, 23.60 objections to 17.51 parent’s convictions 17.50, 17.53, 17.54, 21.18 pluralistic 17.51 preferential treatment 23.91 public education 17.50 religious instructors 17.53 reverse discrimination 23.91 teaching methods, freedom to choose 18.70 remand prisoners convicted prisoners, separation from 9.232–9.236 remedies, right to see also compensation; effective remedy, right to a; exhaustion of domestic remedies absence of domestic remedies 25.08, 25.09 abortion 25.20 access to courts 14.29 amnesties 25.24–25.27 autonomous right as 25.07 avoidance of continuing violations 25.03 children 25.02 compensation 25.03, 25.21, 25.22 constitutional bills of rights 25.10 corruption, measures to combat 25.06 disappearances 25.16, 25.25, 25.26 derogations 26.67 domestic 1.02, 1.21 duty to pass and enforce legislation on 9.159–9.160 effective remedy 25.03 enforcement 25.16–25.23 extradition, expulsion or refoulement 9.117, 13.16 failure to bring to justice perpetrator of violation 25.16 forms 25.03 generally 25.01–25.30 international remedies 25.28–25.29 investigations administrative mechanisms for 25.02 disappearances 25.14 duty to investigate 8.16–8.21, 9.161–9.173, 25.11–25.15

977

judgments, failure to enforce 25.18–25.19 judiciary, role of 25.02 justiciability of right 25.07–25.10 institutions providing 25.02 measures to prevent recurrence 25.04 national human rights institutions 25.02 non-discrimination 23.118–23.119 privacy, right of 16.16–16.17 ratione temporis rule 2.11 reparation 25.03 sentences, failure to enforce 25.17 sovereign immunity 25.18–20.19 State failing to give effect to HRC views 25.28 substantive rights, relationship to 25.08 summary and arbitrary killing 25.16 torture 9.159–9.182, 25.16, 25.17, 25.23 reporting restrictions 21.06 reports see State Party Reports representation see legal representation reputations see honour and reputation reservations under the ICCPR see also incompatible reservations under the ICCPR absence of defendant, trials in 26.12 another international procedure, consideration under 5.08–5.13 content 26.06 controversy over 26.05 cultural relativism 1.127 declarations under the ICCPR, distinguished from 26.08–26.11 dilution of effectiveness of treaty 26.03, 26.06 European Convention on Human Rights 26.14, 26.15 failure to invoke by State 26.04 fair trials 26.12 First Optional Protocol, reservations to 26.30–26.33 generally 26.01, 26.02–26.39 hate speech 18.73 International Law Commission’ Guide to Practice on Reservations to Treaties 26.05, 26.21, 26.36 interpretation of 1.95, 26.12–26.15 invoke, failure to 26.04 limits to State’s freedom to enter into customary international law on 26.16 generally 26.16–26.37 incompatible reservation 26.17–26.29, 26.35–26.37 public morals 1.120 purpose of 26.02 scope 26.06, 26.14

978

Index

reservations under the ICCPR (Cont.) Second Optional Protocol 26.34 Vienna Convention on the Law of Treaties 26.10, 26.16, 26.17, 26.18, 26.38 residence aliens 12.12–12.13, 16.24–16.25 asylum seekers 12.10 building permits 12.07 citizens, lesser rights than 12.13 colonies 12.37, 12.38, 12.45 country, right to enter one’s own 12.33, 12.39–12.44 demolition of homes 12.07 entry to a State, right to impose restrictions on 12.09 expulsion 12.10 family home, right to respect for 16.18–16.26 reunification 12.06, 2017, 20.20–20.24, 20.35, 20.38 freedom of choice of 12.07, 12.11 comprised by economic, legal and forceful coercion 12,11 generally 12.07–12.11 housing, discrimination in 12.07, 12.11 indigenous reservation 12.09, 24.12–24.14 lawfully within the territory of a state 12.12–12.13 liberty, right to 11.10 limitations 12.09–12.11 marital status 23.51 meaning of 12.07 national security 12.10 non-discrimination 23.42 permanent 12.07, 24.12–24.14 privacy, right of 16.24 registration 12.08 residence permits 12.16 residency, right to 12.07, 23.50 sex discrimination 3.31, 23.51 temporary 12.07, 24.10–24.11 territory of a State, within the 12.02 victim requirement 3.40 visas 12.16 voting 22.32, 22.33 women, for 12.05 retirement age 23.62 retroactive criminal law, freedom from civil cases distinguished 15.03 comparative severity of 15.08 crimes against humanity 15.16–15.17 decriminalization of relevant conduct 15.13 generally 15.01–15.18 heavier penalties 15.01, 15.07–15.12

international humanitarian law 15.16 life imprisonment 15.08 lighter penalties 15.01, 15.05, 15.13–15.15 mandatory supervision 15.07 nulla poena sine lege 15.01 nullum crimen sine lege 15.01 parole conditions 15.11, 15.15 preventive detention 15.10 procedural changes 15.05 punishment under vague laws prohibited 15.02 scope of ban 15.04 war crimes 15.16–15.17 reverse discrimination affirmative action 23.83–23.87 disadvantaged group, identification as a member of 23.93 elections, right to stand for 22.48 generally 23.83, 23.87–23.94 legitimate differentiation, as 23.87 maintenance of unequal or separate standards 23.92 proportionality 23.90 public service, denial of access to 22.65, 23.88 quotas 23.93, 23.94 rationale of 23.83 rights absolute, examples of 1.82 abuse of by states, protection from 1.23 arbitrariness 1.84 concretization 1.86 cost-free 1.100 edges of 1.86 limitations on, permissible 1.82–1.86 national law, limits prescribed by 1.83 negative 1.100 positive obligations 1.100–1.105 proportionality 1.84, 1.85 reasonable and objective measures 1.84 substantive, list of, under the ICCPR 1.14 systemic abuse of human rights 1.116–1.118 Western view of 1.03–1.08 riots 19.05 Rule 86 requests see interim measures requests rule of law, maintenance of the 26.70 safety see public safety, health or morals sale of children 21.44, 21.46, 21.50, 21.55 same sex relationships family, protection of the 20.08 family, right to found a 20.48 marry, right to 20.42 non-discrimination 23.54–23.56 pensions 23.54, 23.55, 23.56

Index scientific experimentation, unlawful 9.146–9.149 searches 16.27–16.30 detention, conditions of 9.45 same sex, by 16.27 secession, right to 7.10–7.12 Second Optional Protocol death penalty, prohibition of 1.02, 8.47, 9.81 denunciations 26.40 parties to, number of 1.13 ratification of 1.13 reservations to 25.34 secret ballots 22.55 security see national security; security of the person, right to security of the person, right to death threats 11.03, 11.05 domestic violence 11.06 deprivation of liberty, not restricted to 11.03 generally 11.03–11.07 private persons, State’s obligations to protect individuals from attacks by 11.06 segregation detention, conditions of 9.232–9.236 non-discrimination 23.11 self-defence 8.05, 8.83 self-determination, right of 7.01–7.26 alien subjugation 7.05 Article 1 7.01 Article 1(2) 7.19–7.21 Article 1(3) 7.22–7.23 boundaries of state 7.10 colonial domination, peoples under 7.16 Committee on Economic and Social Rights 7.26 Committee on the Elimination of Racial Discrimination 7.02, 7.06, 7.09–7.18 ‘Declaration of Friendly Relations’ 7.05 decolonization 7.10 definition 7.03–7.18 duties in relation to, state’s 7.22 economic, social and cultural rights 7.01 external, right of 7.09–7.12 First Optional Protocol 7.03 non-justiciability under 7.03, 7.24–7.25, 7.26 General Assembly Resolution 7.05 generally 7.01–7.26 hate speech 18.77 importance of 7.01, 7.24 indigenous land rights 7.19–7.21 internal affairs of other countries, interfering with 7.23 internal, right of 7.08, 7.13–7.18 indigenous peoples 7.18 minorities, overlap with the rights of 7.13

979

political participation, overlap with right of 7.13 secession and 7.16 International Court of Justice ruling 7.12 international law obligations 7.05 levels of, different 7.15 meaning of alien subjugation 7.05 ‘Declaration of Friendly Relations’ 7.05 General Assembly Resolution 7.05 generally 7.03–7.18 ICCPR, under the 7.05 international legal, the 7.05 obligations, international 7.05 ‘peoples’ 7.06–7.08 minorities 24.02 self-determination overlap with the rights of 7.13 natural wealth and resources 7.19–7.21 neo-colonial domination, peoples under 7.16 ‘peoples’ 7.06–7.08 political participation 22.05–22.06 effective 7.25 internal right of self-determination overlap with the right to 7.13 positive obligations 7.22 promote, duty of States to 7.23 secession, right of 7.10–7.12 ‘self-determination unit’ 7.10 systematic human rights abuse 1.86 territorial integrity of states 7.11 voting rights in referendums 7.07 self-incrimination 14.179–14.182 speed radar traps 14.182 sentencing see also death penalty alternative 11.44 appeals 14.139, 14.150 arbitrary 11.19 commutation of, informed 11.19 mandatory 8.27–8.30, 8.61, 11.17, 23.128 non-discrimination 23.128 proportionality 11.40–11.44 separation of powers 14.49 servitude see slavery, servitude and forced labour, freedom from sex discrimination see also Convention on the Elimination of All Forms of Discrimination Against Women; female genital mutilation abortion 23.109, 23.110 affirmative action 23.83–23.96 breadwinner concept 23.14, 23.43, 23.52, 23.78 clothing 23.03

980

Index

sex discrimination (Cont.) Convention on the Elimination of All Forms of Discrimination Against women 23.03, 23.85 country, husband’s consent required to leave a 12.24 cultural practices 23.91, 23.105 differentiation, justification for 23.51–23.53 domestic violence 23.37, 23.98, 23.108 dominant societal values 23.103 educational duties of states 23.113–23.116 effective remedy, right to an 23.118–23.119 employment 23.43, 23.62, 23.83 equal protection of the law 23.16, 23.120 equality before the law 23.15, 23.16, 23.38, 23.120–23.130 generally 23.01, 23.51–23.53 guarantees 23.01, 23.03 hate speech 18.76 hereditary titles 23.10 immigration 23.51 indigenous people 24.12–24.14 indirect 23.39 jurisprudence on 23.131 less favourable treatment 23.39 marital status 23.77–23.79 country, husband’s consent needed to leave a 12.24 foreign husbands of 23.51 nationality, loss of 20.53 residency rights 23.51 welfare benefits and 23.14, 23.19, 23.23, 23.33, 23.44, 23.52, 23.78 name, assumption of wife’s last 23.53 nationality, loss on marriage of women’s 20.53 pensions 23.54, 23.79 political and public participation, rights of 22.59 polygamy 20.52 pregnancy 23.31 privacy, right of 16.53 private sector 23.96, 23.103 public service, equal access to 22.59 quotas 23.93, 23.94 reasonable and objective test 23.15, 23.51–23.53 recognition as a person before the law, right of 10.20–10.21 religion clothing and 23.03 freedom of 17.27 remedies 23.118–23.119 residency rights 3.31, 23.51

retirement age 23.62 retirement pensions 23.54, 23.79 reverse discrimination 23.93, 23.94 sexual harassment in the workplace 23.108 social security 23.14, 23.19, 23.23, 23.33, 23.44, 23.51, 23.52, 23.78 sterilization without consent 23.110 systemic discrimination 23.111 surname, use of wife’s name as family 23.53 tax 23.20 titles, inherited 23.10 traditions, long-standing 23.53 trafficking 10.06–10.07 victim requirement 3.02, 3.40 violence, gender-based 23.37, 23.98, 23.107, 23.108 welfare benefits 23.14, 23.19, 23.23, 23.33, 23.44, 23.51, 23.52, 23.78 widows 23.52 sexual exploitation of children 21.41–21.46 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography 21.46 sexual exploitation of women 23.108 sexual harassment 23.108 sexual orientation see homosexuality sexual privacy 16.49–16.52 sexually reassigned persons 20.44 shackling detainees 9.37, 9.45, 9.66 silence, right to 14.181 Siracusa Principles 26.52, 26.54, 26.55, 26.58–26.73 slavery, servitude and forced labour, freedom from 10.01–10.13 bonded labour 10.09 children 10.11, 10.13 compulsory or forced examples of what is not 10.01, 10.06 exceptions to 10.03 meaning of 10.01, 10.04 service forming part of normal civil obligations 10.01, 10.06 taxation of inducement allowance 10.07 conscientious objection 10.01, 10.05 customary international law, part of 10.02 debt bondage 10.09 domestic workers 10.10, 10.11 economic exploitation or dominance 10.03 generally 10.01–10.13 freedom from servitude broader concept than slavery as 10.03 human rights campaigns, one of the first 10.02

Index illegal aliens, domestic service and 10.10 imprisonment with hard labour 10.01 jurisprudence, absence of 10.01 labour bonded 10.09 child 10.11, 10.13, 21.47 compulsory or forced 10.01, 10.04 hard, in prison 10.01 military service, compulsory 10.01, 10.05 prison 10.01, 10.04 migrant workers, restrictions on 10.10 military service, compulsory 10.01, 10.05 non-derogable right, as a 10.02, 26.64 positive obligations 10.12 prison, labour in 10.01, 10.04 private bodies, abuse by 10.08 prostitution 10.11–10.13 servitude, meaning of 10.03 slavery meaning of 10.01 prohibition on 10.03 taxation 10.07 trafficking in women and children 10.11 unemployment benefits requirement of work placements 10.06 women 10.11, 10.12 social care homes, conditions in 9.217 social contract 1.05, 1.07 social security see welfare benefits soldiers, use of children as 21.52–21.54 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict 21.52 solitary confinement conditions in 9.29, 9.52, 9.133, 9.218–9.220 cruel, inhuman and degrading treatment or punishment 9.142 death row 9.207 detention, conditions of 9.218–9.220 duration of 9.143 generally 9.141–9.145, 9.218-9.220 torture 9.141–9.145, 9.218-9.220 Special Rapporteurs 1.40, 1.42 Standards Minimum Rules for the Treatment of Prisoners 9.132, 9.137, 9.138, 9.139, 9.197, 9.200, 9.214–9.215, 9.231, 9.237 standing to bring a complaint see victim requirement State Party Reports absence of state representative, examination in the 1.42 backlogs 1.139 consensus 1.43–1.44 Convention on the Rights of the Child 21.06

981

Concluding Observations 1.40 delay 1.139, 1.141 emergency 1.39 examination of 1.40, 1.42 guidelines 1.37 initial 1.37 lists of issues 1.41 members 1.1140 non-cooperation 1.42 periodic reports 1.371.40, 1.41 responses 1.141 Special Rapporteurs 1.40, 1.42 state party representatives 1.40 task forces 1.31 State responsibility domestic law 1.26 due diligence 1.113 extraterritorial 4.11–4.17 horizontal obligations in ICCPR 1.106–1.115 International Law Commission 1.107 international organizations 4.25–4.31 intra-territorial 4.18 military service 4.16 private persons, acts of 4.19–4.24 state agents 1.107 territorial and jurisdictional limits of the ICCPR 4.01–4.02, 4.11–4.17, 4.19–4.24, 4.25–4.41 vertical obligations under the ICCPR 1.107 State, right not to be killed by see killed by the State, right not to be State security see national security State sovereignty 1.25 State succession China, People’s Republic of 26.47, 26.49 customary international law 26.45 exhaustion of domestic remedies 6.40–6.43 First Optional Protocol 26.45 generally 26.01, 26.45–26.50 government, change on 26.45 Human Rights Committee, views of the 26.46 international bodies, views of other 26.46 international organization as successor state 26.50 Kosovo 26.50 ‘newly independent states’ 26.46 protection devolves with territory 26.45 Second Optional Protocol 26.45 Soviet Republics, former 26.48 territories, transfer of 26.47 Vienna Convention on the Succession of Treaties 26.45 sterilization 9.57, 9.148, 13.06, 16.55, 23.110 stoning 9.63

982 street children exploitation of 21.16, 21.44 life, right to 8.44 strike, right to association, freedom of 19.23–19.26 expression, freedom of 18.52 generally 19.23–19.26 International Covenant on Economic, Social and Cultural Rights 19.23–19.26, 19.29 ILO Conventions 19.21, 19.23–19.26 national security 18.39 trade unions 19.20–19.30 strip searches 16.30 succession see State succession suicides in detention 8.36–8.37 suit at law administrative proceedings 14.07, 14.12 civil proceedings 14.07 civil servant, professional misconduct 14.13 contract 14.19 criminal prosecutions 14.08 death penalty, commutation of 14.20 deportation proceedings 14.17–14.18 disability pensions, claim for 14.09–14.11 dismissal from civil service 14.12 diversity in legal systems 14.54 employment, dismissal from 14.12 evidence, failure to accept/hear 14.73, 14.78 generally 14.07–14.20 judicial body, proceedings before 14.13 judicial review 14.07, 14.09 meaning of 14.07, 14.19 private law rights 14.19 property rights 14.14 promotion, refusal of 14.15 psychiatric hearings 14.14 public hearings 14.06 public law determinations, judicial review of 14.19 public service, appointment and dismissals 14.16 rights and obligations, determination of 14.07social security benefits, proceedings to determine 14.14 torts 14.07 superior orders defence 9.40, 15.16 surveillance 16.31, 16.35 systemic human rights abuse civil and political rights 1.116–1.119 indigenous people 24.17 non-discrimination 23.104–23.112 political and public participation, rights of 22.23, 22.59

Index reverse discrimination 1.116–1.118 systemic inequality 1.116, 23.104–23.112 tax access to courts 14.47 appeals against assessments 14.47 conscientious objectors 17.47 family, protection of the 20.03 privacy, right of 16.44 sex discrimination 23.20 slavery, servitude and forced labour, freedom from 10.07 telephone tapping 16.07, 16.34 territorial and jurisdictional limits of the ICCPR admissibility of complaints under ICCPR 1.17, 4.01–4.41 asylum seekers detained in another State 4.15 citizenship 4.02 colonies 4.05–4.10 companies abroad, state responsibility for acts of 4.24 complainant at time of complaint, location of 4.12–4.17 deportation 9.100 detention facilities in another State 4.17 extradition 4.33, 4.36, 4.38–4.40 generally 1.17, 4.01–4.41 international organizations, state’s liability for acts of 4.25–4.31 intra-territorial violations 4.18 Israel, extraterritoriality and 4.12 military services, state responsibility and 4.16, 4.17, 4.31 passports, confiscation of 4.14 private persons, state liability for the acts of 4.19–4.24 state agents, extraterritorial acts of 4.13, 4.21 state responsibility acts of other states 4.32–4.40 companies abroad 4.24 extraterritorial 4.11–4.17 generally 4.01–4.02 international organizations 4.25–4.31 intra-territorial responsibility 4.18 military services 4.16, 4.17, 4.31 private persons, acts of 4.19–4.24 territory over which has effective control 4.12 States, liability for acts of other 4.32–4.40 treaties, successor countries to 4.06–4.10 United Nations bodies 4.26–4.31 universal jurisdiction 9.188–9.192 Vienna Convention on the Law of Treaties 4.06

Index territory of a State, within the generally 12.02–12.07 residence, choice of 12.02, 12.04, 12.09–12.11 terrorism assassination by the state 8.06 asylum seekers 13.10 country, freedom to leave a 12.23 extradition, expulsion or refoulement 13.23 interrogations 9.05, 9.26, 9.32, 9.42, 9.104 movement, freedom of 12.10, 12.14 non-discrimination 23.114 rendition 1.67, 9.13, 9.38, 13.23, 9.104 torture 9.05, 9.26, 9.32, 9.42, 9.104, 9.119, 9.123 thought and conscience, freedom of see conscientious objection; religion freedom of time see ratione temporis rule torture and rights to humane treatment, freedom from see also Convention against Torture; torture, meaning of abortion denial 9.58, 9.59 forced 9.58 provision for women after rape 9.58, 9.60 absolute right, as 9.01, 9.40–9.42 amnesties 9.183–9.187 amputation of limbs 9.43 arrest pain and suffering resisting 9.47 Article 7 treatment, duties to institute proceedings to minimize risks of 9.151–9.153 asylum seekers, compulsory detention of 9.73–9.75 burden of proof 9.55 children 9.57 classifications of acts 9.43 compensation 9.174–9.175 confessions, non-use of 9.156–9.158 corporal punishment 9.127–9.130 cruel, inhuman and degrading treatment or punishment 9.03, 9.28–9.39 ‘cruel’, meaning of 9.23 death penalty, informing family of time and date of 9.70 death row phenomenon 9.78–9.93 ‘degrading’, meaning of 9.31, 9.35 defences 9.160, 9.182 deportation to countries where person may be subject to 9.61–9.65 derogations, no 9.01, 26.64 detention, conditions of 9.131–9.135 disappearances 9.145 disciplinary punishment 9.01 domestic violence, lack of laws in relation to 9.160

983 economic and budgetary justifications 9.46 elderly people 9.67 emergencies 9.40 evidentiary requirements 9.54–9.56 exceptions to, no 9.40 execution, methods of 9.94–9.96 extradition, expulsion or refoulement 9.61–9.65, 9.98–9.126, , 13.02, 13.09 female genital mutilation 9.62forms of 9.49–9.149 foreseeability of torture 9.14, 9.65, 9.94, 9.100, 9.104, 9.109, 9.111, 9.121 gender-based torture risk of return to country of 9.61–9.65 generally 9.01–9. heinous treatment or heinous punishment 9.01 impunity statutes 9.187 incommunicado detention 9.52, 9.141–9.144, 9.154–9.155 ‘inhuman’, meaning of 9.35 inhuman or degrading treatment or punishment death row phenomenon 9.78–9.93 torture compared with 9.03 interrogations of terrorists 9.42 investigate Convention Against Torture 9.168–9.171 duty to 9.161–9.173 impartiality, requirement of 9.161, 9.163, 9.164, 9.167, 9.172 promptness, requirement of 9.161, 9.163, 9.164, 9.166, 9.167 judicial proceedings, non-use of statements in 9.156–9.158 legislation providing remedies, duty to pass and enforce 9.159–9.160 levels of bad treatment and punishment 9.01 liberty, meaning of persons deprived of their 9.195 limitations upon, no 9.40, 9.179 jurisdiction over offenders, universal 9.188–9.192 justifications for 9.42–9.46 medical examinations, independence of 9.167 medical experimentation, unauthorized 9.01, 9.146–9.149 medical treatment, consent to 9.101 failure to treat elderly prisoner 9.77 mental distress 9.68–9.77 anguish felt by family members 9.68–9.71 mental health of victims 9.30 failure to treat death row detainee 9.76

984

Index

torture and rights to humane treatment, freedom from (Cont.) military service humiliation of new recruits to 9.52 impartial investigations of the 9.167 necessity, defence of 9.182 non-derogable right, as a 9.01, 9.40–9.41 omissions by the State 9.58, 9.59 pain and suffering 9.37, 9.47 personnel, duty to train 9.150 physical pressure 9.42 police, impartial investigations of the 9.162–9.163 political instability 9.40 positive duties 9.19, 9.159 private persons, torture by 9.11–9.12, 9.160 prohibit torture, states’ duty to 9.19 proportionality 9.42–9.43 prosecute a person, duty to 9.177 psychological pressure or torture 9.42 punish offenders, state’s duty to 9.176–9.182 lenient sentences 9.181 pardons 9.180, 9.181 punishment 9.01 punishment, corporal 9.127–9.130 racist motives 9.39 rape abortion 9.58 lack of laws in relation to 9.66 marital 9.66, 9.160 pregnancy resulting from 9.58 rationale of 9.01–9.02 reasonableness 9.43 refoulement 9.65, 9.98–9.126 remedies amnesties 9.183–9.187 compensation 9.174–9.175 effective 9.159 duty to provide 9.159–9.187 investigation of allegation of torture, duty to 9.161–9.173 legislation providing, duty to pass and enforce 9.159–9.160 punishment 9.176–9.182 right to 25.16, 25.17, 25.23 restrictions on 9.40–9.48 scientific experimentation, consent to 9.01 severity of treatment 9.05 sex discrimination 9.236 small cell, confinement within 9.29 solitary confinement 9.29, 9.52, 141–9.144, 9.154 statements gained from torture or prohibited treatment, non-use of 9.156–9.158

sterilization, forced 9.57, 9.148 subjective evaluations 9.30 superior officers, orders of 9.40 terrorist acts 9.41 terrorists, interrogation of 9.42 torturers amnesty for 9.183–9.187 duty to extradite 9.188 duty to prosecute 9.177, 9.186 duty to punish 9.176–9.192 extraterritorial jurisdiction over 9.188–9.192 State not to be branded as 9.03 stigma attached to 9.03 training, duty to train appropriate personnel 9.150 treatment 9.01 universal jurisdiction over offenders 9188–9.192 unlawful rendition 9.13, 9.38 victimization 9.120, 9.173 victim’s characteristics age 9.29 mental health 9.29 violations of compensation 9.174–9.175 corporal punishment 9.127–9.130 death row phenomenon 9.78–9.93 determination 9.43 execution, methods of 9.94–9.97 investigate, duty to 9.161–9.173 legislation, duty to pass and enforce 9.159–9.160 mental distress 9.68–9.77 minimize risks of, duty to institute procedures to 9.151–9.153 non-governmental organizations, inference from reports 9.56 persons guilty of, duty to punish 9.176–9.182 proof of, evidentiary requirements for 9.54–9.54 punish offenders, state’s duty to 9.176–9.182 remedies for, duty to provide 9.159–9.182 remedies, duty to pass and enforce legislation providing 9.159–9.160 specific 9.49–9.149 vulnerable persons duty to provide special protection 9.151 war 9.40 women 9.57 sterilization 9.148 torture, meaning of acquiescence 9.11–9.21 due diligence 9.18 inability to protect distinguished from failure to protect 9.14–9.17

Index acts causing death 9.36 malevolent and benevolent 9.09–9.10 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 9.01, 9.04–9.24, 9.35 cruel, inhuman or degrading treatment or punishment, compared with 9.03, 9.28 degrading treatment 9.31 due diligence 9.18 European Convention on Human Rights 9.25 findings 9.23–9.27 food, withholding 9.08 forms of torture 9.05, 9.34–9.39 generally 9.03–9.24 high pain thresholds, persons with 9.06 Human Rights Committee, failure to specifically define torture 9.25, 9.35 intentional infliction of torture 9.04, 9.06–9.07 less harsh forms of treatment, compared with 9.03 medical attention, withholding 9.08 mental suffering 9.04, 9.05 negligence 9.06 non-governmental groups, protection from 9.14–9.18 omissions as 9.09 pain and suffering generally 9.05 intention to cause 9.06–9.07 lawful sanctions, arising from 9.22 mental 9.04, 9.05 negligent infliction of 9.06–9.07 physical 9.04, 9.05 private persons, inflicted by 9.19–9.21 public official, inflicted by 9.11–9.21 susceptibility towards 9.06– 9.07 tolerance levels towards 9.06 physical suffering 9.04, 9.05 positive obligations 9.19 private persons, torture by 9.19–9.21, 9.110 public official, torture with the consent or ‘acquiescence’ of 9.11–9.21 punishment 9.01 purpose, inflicted for a 9.09–9.10 racial hatred, inspired by 9.12 rape 9.05, 9.12 sanctions, lawful 9.22 severity, threshold of 9.05 subjectivity 9.9.29 treatment, standards of 9.01, 9.25 violations of ICCPR 9.25–9.27 trade unions association, freedom of 19.20–19.30

985

bargaining power 19.35 closed shop practices 19.35 compulsory membership of, prohibition on 19.35 expression, freedom of 18.52 foreign workers barred from holding office 19.22 generally 19.20–19.30, 19.36 historic persecution of 19.20 ILO Conventions 19.21 International Covenant on Economic, Social and Cultural Rights 19.25, 19.26 join, freedom to 19.25 meaning of 19.20 rights of 19.21 strike, right to 19.23–19.26 territorial and jurisdictional limits of the ICCPR 4.20 trafficking in humans children 21.48–21.49 exploitation of children 10.06–10.07, 21.48–21.49, 21.51 slavery, servitude and forced labour, freedom from 10.09–10.10 women 10.09, 10.10 training ICCPR 1.102 judges 14.51, 14.52 life, right to 8.11, 8.35 police 8.11, 8.35, 9.150 prison warders 8.35, 9.150 torture 9.150 transsexuals 9.52, 16.57, 20.44, 20.52 travel documents, right to obtain 12.19–12.22 treaty bodies see United Nations treaty bodies trial, delay in see delay, trials without undue trial, right to a fair see fair trial, right to UDHR see Universal Declaration of Human Rights 1948 unborn children, rights of 3.37 unemployment benefits 23.14–23.15, 223.18 United Nations Commission on Human Rights 18.25, 18.26, 26.46 United Nations Human Rights Council 1.33, 1.39, 1.144 United Nations Office of the High Commissioner for Human Rights 1.39, 9.65 United Nations treaty bodies see also Human Rights Committee another international procedure, consideration under 5.06 territorial and jurisdictional limits of the ICCPR 4.26–4.31

986

Index

Universal Declaration of Human Rights 1948 bills of rights 1.09 civil and political rights 1.09 economic, cultural and social rights 1.09ICCPR 1.10 International Covenant on Economic, Social and Cultural Rights 1966 1.10 natural rights 1.03–1.08 philosophical background to 1.03 security of the person 11.03 use of force see also violence detention, conditions of 9.131–9.135 killed by the state, right not to be 8.05–8.10, 8.13, 8.15 police 8.06, 8.10, 8.13 proportionality 8.05 war in, disproportionate 8.83 vertical obligations in ICCPR 1.106–1.109 victim requirement access to information 3.06 admissibility of complaints under ICCPR 3.01–3.49 anonymity 3.07 asylum seekers 3.27, 3.32 bail conditions, breach of 3.08 behaviour of, tainted 3.08, 3.09 children 3.24, 3.33–3.35 collective rights 3.11–3.13 unborn 3.37 communication anonymous submissions 3.07 First Optional Protocol, individual communications under 1.48–1.63 victim must be involved in 3.01–3.02, 3.31–3.32 victim’s inability to submit 3.31–3.32 complaint, not a victim throughout the deliberation of 3.04 consent of, appearance of 3.26 corporations 3.17–3.20 dead victims 3.29 death penalty, extradition to countries with the 3.41–3.43 detention incommunicado 3.31, 3.32 duration of status as victims 3.04 exhaustion of domestic remedies 3.38 extradition to a country with the death penalty 3.41–3.43 family connections with victim 3.30 First Optional Protocol 3.01–3.49 individual communications under 1.48–1.63 self-determination 7.24 standing for third parties 3.24–3.34

foetuses 3.37 foreseeable, violation must be reasonably 3.39 future violations 3.38–3.48 generations, future 3.38 group actions 3.13 incommunicado victims 3.31, 3.32 individuals only 3.01, 3.10 exceptions to the rule 3.01, 3.25 legal representation 3.27 legislation which potentially violates ICCPR, domestic 3.46–3.48 meaning of 3.01–3.02 non-government organizations 3.14–3.15 parents of minors 3.33–3.34 partnerships 3.21 political parties 3.16 power of attorney 3.26 reasonable foreseeability 3.39–3.45 religious organizations 3.22–3.23 representative of the victim, acting as 3.26–3.37 self-determination, right of 3.12, 7.24 standing 3.24–3.33 successors to the victim 3.36 tainted victims 3.08, 3.09 third parties close family members 3.30 communication, victim’s inability to submit 3.29–3.32 formalities 3.26 generally 3.01, 3.24–3.33 parents of minors 3.33–3.34 representative of the victim, acting as 3.26 standing of 3.24–3.37 victim involvement in communication 3.01– 3.09 violations, future extradition 3.41–43 foreseeable, must be reasonably 3.39–3.45 nuclear weapons, effect of 3.44–3.45 parole conditions, changes to 3.39 women in jury, absence of 3.02 violence assembly, freedom of 19.05 children, protection of 8.43, 21.15 corporal punishment 9.1127–9.130 detention, conditions in 9.135 domestic 9.160, 11.06, 20.01, 23.37, 23.98, 23.108 elections 22.50 incitement of 8.83 life, right to 8.83 family, protection of the 20.01

Index security of the person 11.06 sex discrimination 23.51–23.53 sexual violence 9.65 torture 9.57, 9.65, 9.66 use of force in detention, proportional 9.135 visas country, freedom to leave a 12.17, 12.18 country, right to enter one’s own 12.34 exhaustion of domestic remedies 6.26 exit visa 12.18 family, unity of the 20.29, 20.33 freedom of movement 12.16 residence 12.16 voting absolute right, not 22.27 adequate opportunity to vote 22.34 age 22.25 association and assembly, freedom of 22.33 automatic systems 22.60 children 21.07 convicted persons 22.27 criteria for 22.25 detained persons to humane treatment, right to 9.246 disadvantaged citizens 22.34–22.35 education 22.33 election, compared with right to stand in 22.41 electoral systems constituency voting 22.35 electoral college 22.35 first-past-the –post 22.35 functional constituencies 22.36 preferential voting 22.35 proportional representation 22.35 equal effect 22.39, 22.40 equal suffrage 22.36–22.37 equality of election rights 22.37, 22.38 exhaustion of domestic remedies 6.45 expression, freedom of 22.33 functional constituencies, criticism of 22.36 generally 22.24–22.40 gerrymandering 22.35 illiteracy 22.33 intimidation 22.33 language barriers 22.33 marginal seats 22.39 mental incapacity 22.25 minority groups 22.38 monarchy 22.31 movement, freedom of 22.33 non-discrimination 22.35 ‘one person, one vote’ 22.35 opportunity to vote 22.33–22.34

987 opposition parties 22.30 political systems 22.08 positive discrimination 22.38 positive obligations 22.33 poverty 22.33 prisoners’ rights 6.41–6.42, 9.246, 22.27–22.29 proportionality 22.25, 22.28 public service, equal access to 22.61 quality of vote 22.35–2240 referenda 7.07, 22.32 registration requirements 22.24, 22.33 residency restrictions 22.32, 22.33 restrictions on the right to vote 22.25–22.32 convicted persons 22.27–22.29 grounds for 22.25 law, established by 22.25 military cadets 22.30 proportionality 22.25 residency restrictions 22.32. 22.33 right to vote 22.25–22.32 rights, relationship to other 22.33 rural bias 22.38 safe seats 22.39 secret ballot 22.55 self-determination 7.07 state’s obligations describe the rules governing voting, to 22.33 facilities, provision of 22.34 opportunity to vote, measures to ensure 22.33 voting systems 22.35–22.40

war and armed conflict child soldiers 21.52–21.54 Convention on the Rights of the Child, Optional Protocol to 21.53 death penalty during 25.34 hate speech 18.72 incitement to violence 8.83 life, right to 8.83–8.87 nuclear capability 8.84–8.87 propaganda freedom from 8.83 hate speech 18.72 horizontal obligations 1.115 meaning 18.72 illegal wars, for 18.72 retroactive criminal law, freedom from 15.16–15.17 self-defence 8.83 states’ obligation to prevent or minimize the risk of 8.83–8.87 torture conducted during 9.16, 9.40

988

Index

war and armed conflict (Cont.) UN Charter, sanctioned by the 18.72 use of force during, disproportionate 8.83 war crimes child soldiers and 21.53 retroactive criminal law, freedom from 15.16–15.17 wealth discrimination and 23.36 natural, self-determination and 7.19–7.21 wedlock, born out of see illegitimacy welfare benefits child benefit 20.05, 23.18 children 20.05, 23.18 family, protection of the 20.05 indirect discrimination 23.43 marital status 23.43–23.44 non-discrimination 23.14, 23.19, 23.23, 23.33, 23.43–23.44, 23.52, 23.78 sex discrimination 23.14, 23.19, 23.23, 23.33, 23.43–23.44, 23.52, 23.78 suit at law 14.07 welfare state 1.08 widows burning of 8.88 sex discrimination 23.30, 23.52 wire tapping 16.07, 16.31 witnesses anonymous 14.102, 14,176 attendance of 14.169,14.171–14.171 calling of equal right of both parties to 14.169 failure to call 14.119, 14.170 coercion of 14.73 cross-examination 14.169, 14.175 death penalty cases 14.172 demeanour 14.176 detention of 14.74 equality of arms 14.169, 14.170 examination of 14.169–14.176 experts 14.174fair trials 14.73–14.74, 14.78 financial means of 14.172 generally 14.169–14.176 hear, failure to 14.78 hostility within the court 14.76 International Criminal Court, Rome Statute of 14.102 identity 14.176 interpreters 14.24, 14.177 legal representatives judgment of 14.171 protection by 14.145

limits to guarantee 14.169, 14.170 public hearings 14.102 statements, copies of 14.173 threatening 14.76 unavailability of 14.171–14.172 women see also Convention on the Elimination of all Forms of Discrimination against Women; female genital mutilation; sex discrimination abortion 8.88, 8.90–8.95 aliens extradition, expulsion or refoulement 13.06, 13.15 residential status of 12.05 birth, registration of girls at 21.55 childbirth, deaths during 8.88 children 21.29 country, freedom to leave a 12.24 courts, access to 14.29 cultural practices 21.15 cultural relativism, and 1.119 death penalty, prohibition in relation to pregnant women 8.65 detention, conditions in 9.57–9.67, 9.131–9.135 dowry killings 8.88, 13.06 education girls 21.24 pregnancy in children affecting 21.17 elections 22.48, 22.49 expulsion of 13.06, 13.15 freedom of movement 12.05 judges 14.52 life, right to 8.88–8.95 marriage, age of consent to 21.22 married women 20.51–20.52 access to courts 10.20–10.21, 14.32 consent to marriage 20.51–20.52 movement, freedom of 12.05 pensions 23.18, 23.30 person before the law, recognition as 10.20–10.21 political and public life, equality in 22.59 pregnancy death penalty 8.65 deaths during childbirth 8.88 rape 8.92, 9.59 tests 16.53 prisoners, treatment of 9.57–9.67, 9.131–9.135 privacy, right to 16.53 prostitution 10.11, 10.12 public service, equal access to 22.59

Index quotas 22.93 rape marriage, coercive 20.51 pregnancy resulting from 8.92, 9.59 privacy, right of 16.53 religion, freedom of 17.26, 21.24 reproductive decisions 16.53 residency rights 12.05, 20.18 suicide 8.94

989 sterilization 9.44, 9.148, 16.53 systemic inequality 23.104–23.112 territory of a state, within the 12.05 torture 9.57–9.67 trafficking in 10.11 unemployment benefits 23.14–2315 widows, burning of 8.88

young offenders see juvenile offenders