HUMAN RIGHTS COMMITTEE AND COMMITTEE AGAINST TORTURE RULE ON COMPLAINTS OF VIOLATIONS FROM INDIVIDUALS

5 December 2003



Two independent human rights bodies have found violations of the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

The Human Rights Committee, the panel that monitors how countries implement the ICCPR, issued its findings after examining cases brought by individuals claiming to be victims of breaches. The cases were decided during the Committee’s last session in Geneva, held from 20 October to 7 November 2003. The Committee considered 13 complaints, finding that six of these had established violations of the Covenant, six were inadmissible, while another revealed no violation; the Committee also discontinued examination of eight other complaints.

The Committee against Torture, which monitors countries’ implementation of the CAT, considered communications bought by individuals under article 22 of the Convention. The cases were decided during the Committee’s last session in Geneva, held from 10 to 21 November 2003. The Committee considered a total of 12 communications on the merits, finding that 9 revealed no violations of the CAT. It considered the admissibility of a further 2 cases, finding one to be inadmissible.

Of the 149 States parties to the ICCPR, 104 have recognized the competence of the Committee to examine complaints by individuals under their jurisdiction about human rights violations. The procedure is provided for in the Optional Protocol to the ICCPR. Of the 134 States parties to the CAT, 53 have recognized the Committee’s competence to look at allegations of violations from individuals, as provided for in the treaty’s article 22.

Summary of Cases

The communications considered below are considered interesting in terms of jurisprudence and because they develop the Committees’ case law under a number of substantive provisions of the two conventions. Cases before the Human Rights Committee concern breaches of the right of a prisoner to seek access to a Court to review the lawfulness of the detention (Rameka v New Zealand); arbitrary detention and family rights in the context of immigration detention (Baktiyari v Australia); and freedom from torture and the right to a fair trial (Wilson v Philippines). Cases before the Committee against Torture relate to claims that deportation would give rise to a violation of the obligation not to return (‘refouler’) a person to a country where there are substantial grounds for believing that he would be in danger of being tortured; and claims of violation of the convention in the complainant’s country of origin.


Human Rights Committee

Case No 1090/2002; Rameka v New Zealand

In this case, the three authors had been sentenced to "preventive detention", following their conviction for certain serious offences. These sentences were imposed by the sentencing court which, after having regard to certain reports, determined that there was a "substantial risk" of the offenders committing a further serious crime upon release. Under the State party’s sentencing regime, such offenders had to serve a non-parole period of ten years imprisonment, after which time the Parole Board would review the offenders to assess whether continued detention was necessary for protective purposes, and, if not, to direct release. The Parole Board's decision was also subject to subsequent judicial review.

The three authors’ major contentions were that this regime violated their rights under article 9, paragraphs 1 (arbitrary detention) and 4 (access to court to determine lawfulness of detention), article 10 (treatment of prisoners) and article 14, paragraph 2 (presumption of innocence).

The Committee found one individual's case inadmissible for failure to exhaust domestic remedies. Of the other two, the Committee found a violation of article 9, paragraph 4, with respect to one author. In his case, the Court of Appeal had stated that, but for the sentence of preventive detention, it would have imposed a finite seven and a half year prison sentence. However, under the sentence of preventive detention, he would have to serve an additional two and a half years imprisonment, for preventive purposes, and the Parole Board could not review his detention until a total of 10 years imprisonment had elapsed. The Committee considered that the absence of a Parole Board review of the continuing justification for detention after the seven and a half year period amounted to a violation of the right to approach a court for review of detention. As to the remaining claims, the Committee considered that the individuals had not shown that, from the ten year point onward, their detention was arbitrary, unable to be tested by a court or in breach of their rights as prisoners or of the presumption of innocence.

Case No 1069/2002; Bakhtiyari v Australia

One of the authors in this case was a father who had arrived in Australia and been granted refugee status on the basis that he faced a well founded fear of persecution in Afghanistan, due to his ethnic origin. The second author, being the first author’s wife, and a number of their young children subsequently arrived unlawfully in Australia. They were placed in mandatory immigration detention, and were refused refugee status on the basis that they appeared to be from Pakistan, rather than Afghanistan. Thereafter, the authorities rescinded the father's refugee status, and, with a view to deportation, he was placed in immigration detention together with the other family members. Both authors each unsuccessfully pursued court proceedings against the respective decisions to rescind and not grant refugee status. However, separate application was made on behalf of the children, who claimed that being remanded in immigration detention caused them particular harm in view of their age, to the Family Court, which determined that it had welfare jurisdiction to order, where necessary, a child's release from immigration detention, and orders for release were ultimately made.



The family made a variety of claims in their communication to the Committee, including that their detention was arbitrary and unreviewable in violation of article 9 (arbitrary arrest) and, in addition, that the detention of the children violated article 24 (protection of children as required by their status). They further claimed that their return to Afghanistan would breach article 7 of the Covenant, and that deportation of the mother and children while the father continued legal proceedings challenging the rescission of his refugee status, would breach family rights protected in the Covenant (articles 17 and 23).

The Committee rejected the father's claims that his detention was arbitrary and unreviewable, due to the circumstances of his arrival and reasonably expeditious determination of his claim. However, the Committee considered that the detention of the mother, and the children (prior to their release) was not so justified and had been arbitrary and unreviewable. The Committee also considered that to deport the mother and children in advance of the resolution of the father's proceedings would breach articles 17 and 23 of the Covenant, which protect the family unit. Finally, the Committee took the view that, in light of the harm suffered by the children during their detention, decisions relating to them had not, up to the Family Court’s intervention, been guided by their best interests, in breach of their rights under article 24.

Wilson v The Philippines

The author, a British national residing in the Philippines, was arrested for the alleged rape of his step-daughter. At the point of arrest, he was not advised of his rights or informed of the reasons for his arrest in a language he understood. Whilst under pre-trial arrest, he was detained together with convicted prisoners in unsanitary conditions and suffered serious maltreatment. Following an allegedly unfair trial, the author was sentenced to death and detained in another prison in unsanitary conditions, and was subjected to further serious mistreatment. He was released following a successful Supreme Court appeal, which took a different view of the relevant evidence from that of the trial court. The author was only permitted to depart the country following payment of fees and fines for overstaying his visa, even though this had occurred because he was in detention. At the same time, he was placed on an immigration exclusion list, with the effect that he was unable to return to the country to collect compensation that had been awarded to him by the domestic authorities.

The author alleged that the State party had violated his rights under articles 2 (right to an effective remedy), 6 (right to life), 7 (right to be free from torture and similar treatment), 10 (treatment of prisoners) and 14 (fair trial rights).

In the light of the author’s successful appeal, the Committee considered that it did not need to address the claims under article 6. The conditions of detention and physical mistreatment however amounted to violations of articles 7 and 10. The author’s pre-trial detention with convicted prisoners also violated article 10. In addition, in the absence of argument by the State party, the Committee found that the circumstances of his arrest violated a number of guarantees contained in article 9. By way of remedy, the Committee recommended appropriate compensation, a criminal investigation into the instances of physical maltreatment, refund of the moneys claimed from the author by the authorities after his release, as well as the payment of all compensation due to him at a location of his choice.

Committee against Torture

Cases No 187, 188 and 189/2001: Thabti v. Tunisia, Abdelli v. Tunisia and Ltaief v. Tunisia

These cases before the Committee against Torture involved three Tunisian nationals presently residing in Switzerland as refugees, claiming that they had been tortured in Tunisia. They alleged that, as members of an Islamist organization banned in Tunisia, they had been subjected to torture and ill-treatment in their country before fleeing to seek refuge abroad.

The Committee found that the State party had failed to carry out an investigation into the complainant’s allegations, in violation of article 12 of the CAT. It also found that the State party had violated article 13 by failing to arrange for medical examinations to be organized systematically when the allegations of abuse were brought to the attention of the State authorities. The Committee urged the State party to conduct an investigation into the complainant’s allegations of torture and ill-treatment and to inform it of the steps taken in response to the views expressed above.

Case No. 186/2001: K.K. v Switzerland

The complainant was a Sri Lankan national whose application for asylum in Switzerland had been rejected. He claimed that his expulsion from Switzerland to Sri Lanka would subject him to a foreseeable, personal and present risk of torture, in violation of article 3 of the Convention. He alleged that he had previously been subjected to torture at the hands of the Sri Lankan authorities, and charged with serious offences relating to terrorism.

The Committee found that, although it could not be ruled out that the complainant had been tortured by the Sri Lankan authorities in the past, the complainant had not established that he was at personal risk of torture upon return to Sri Lanka. The Committee noted that the alleged instances or torture had not occurred in the recent past, and that the complainant had in fact been acquitted of the relevant terrorist charges by a Sri Lankan Court. The Committee also noted that the general situation in relation to human rights in Sri Lanka had improved. In these circumstances, the Committee found that the complainant’s deportation to Sri Lanka would not violate article 3 of the Convention.

Case No 213/2002: E.J.V.M v Sweden

The complainant was a Costa Rican national, who had been unlawfully residing in Sweden with his partner, a female-to-male transsexual. He claimed that his deportation to Costa Rica, where he had allegedly been detained and tortured in the past as a Communist student activist, would constitute a violation of article 3 of the Convention.

In assessing the complainant’s risk of torture upon return to Costa Rica, the Committee declined to consider a psychiatric report which had been submitted after the end of the deadline set in accordance with rule 91, paragraph 6, of its rules of procedure. It concluded that the complainant had failed to corroborate his allegation that he would run a foreseeable, personal and present risk of torture in Costa Rica on grounds of his bisexuality and his former political activities. In reaching this conclusion, the Committee also took note of the fact that Costa Rica had made a declaration under article 22 of the Convention.



Case no 199/2001: Attia v Sweden

In this case, the author and her husband entered Sweden and claimed asylum. In the asylum process, national security concerns came to light concerning alleged terrorist activities on the part of the author's husband. As a result, the two tribunals of the asylum determination process relinquished a decision on the applications to the government. The government rejected the claims and ordered expulsion to Egypt. The author's husband was expelled in December 2001, while the author remained in Sweden pursuing the present application to the Committee. Prior to expulsion, the government negotiated and received certain assurances covering the future treatment in Egypt of both the author and his wife.

Following expulsion, Swedish authorities instituted a system of regular monitoring visits, which considered the treatment of the author's husband to be acceptable. Following separate visits, the family of the author's husband was of a contrary view. In these circumstances, the author alleged that by virtue of her relationship to her husband, she was at risk of torture if expelled, and her expulsion would accordingly violate article 3 of the Convention. The Committee concluded that, in light of the passage of time, the guarantees provided, the evidence in the case, Egypt's status as a State party and her arguments based on marital link, the author had not made out a case that her expulsion at the present time would violate article 3 of the Convention.