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

23 December 2004

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 violations of the Covenant. The cases were decided during the Committee’s last session in Geneva, held from 18 October to 5 November 2004. The Committee considered 16 cases, finding that eight of these revealed violations of the Covenant, seven were inadmissible, and another revealed no violation.
The Committee against Torture, which monitors countries’ implementation of the CAT, considered five five cases brought by individuals under article 22 of the Convention. The cases were decided during the Committee’s last session in Geneva, held from 15 to 26 November 2004. The Committee found that two cases revealed violations of the Convention. Two other cases were judged inadmissible and one revealed no violation. The full text of the decisions can be found on the Office of the High Commissioner’s website (go to www.unhchr.ch/tbs/doc.nsf, then click on “CCPR” or “CAT”, accordingly, and then on “Jurisprudence”).

Summary of Cases

The cases 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. Those before the Human Rights Committee concern breaches of the right to life (Pagayawon Rolando v. Philippines), to freedom of thought, conscience and religion (Leirvåg et al. v. Norway and Hudayberganova v. Uzbekistan), not to be compelled to testify against himself or confess guilt (Deolall v. Guyana); and to review of conviction and sentence by a higher tribunal (Alba Cabriada v. Spain) Cases before the Committee against Torture relate to a claim 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 (Falcon Ríos v. Canada); and a claim of torture by the police.

Human Rights Committee

Case No. 912/2000: Deolall v. The Republic of Guyana

The author was sentenced to death for murder. He claimed that his trial was unfair as it relied solely on a confession statement, which had allegedly been extracted under torture.
The Committee found that the author’s rights under article 14, paragraphs 1 (fair trial) and 3 (g) (right not to be compelled to testify against himself or confess guilt) were violated. It considered that the testimony of three doctors at trial prima facie supported the allegation of ill-treatment but the court, although it clearer stated to the jurors that if they found the author had been beaten by the police prior to giving his confession they could not attach any weight to that statement and would need to acquit him, did not instruct them that they would need to be convinced that the prosecution had managed to prove that the confession was voluntary. Following its previous jurisprudence, the Committee also found a violation of article 6, since the death penalty was passed without having observed the requirement of a fair trial set out in article 14.

Case No. 931/2000: Hudayberganova v. Uzbekistan

The author claimed that, in violation of her rights under articles 18 and 19 of the Covenant, she was excluded from University because she wore a headscarf for religious reasons and refused to remove it. The State party argued that she was expelled due to her “rough immoral attitude toward a teacher and infringement of the internal regulations (of the University)".

The Committee considered that freedom to manifest one’s religion encompasses the right to wear clothes or attire in public. It recalled, however, that this freedom is not absolute and may be subject to limitations, which are prescribed by law and are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others (article 18, paragraph 3, of the Covenant).

In the present case, the Committee found that the author’s exclusion was based on the provisions of the Institute’s Internal regulations, and 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. "In the particular circumstances of the case, and without either prejudging the right of a State party to limit expressions of religion and 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 concluded, in the absence of any justification provided by the State party, that there has been a violation of article 18, paragraph 2 of the Covenant.




Case No 1101/2002: Alba Cabriada v. Spain

The author was sentenced for an offence against public health for his involvement in drug trafficking. He alleged that, under the Spanish Criminal Prosecution Act, cases involving individuals accused of the most serious crimes can be appealed only on very limited grounds and the appeal courts cannot reappraise the evidence. His case falling within such category of crimes, he claimed to be a victim of a violation by Spain of article 14, paragraph 5 of the Covenant, which protects the right of those convicted of a crime to have their conviction and sentence reviewed by a higher tribunal.

The Committee found that the review of the appeal court, which is limited to an examination as to whether the findings of the trial court amount to arbitrariness or a denial of justice, was not in accordance with the requirements of article 14, paragraph 5 of the Covenant. It therefore concluded that the author’s conviction should be reviewed and that Spain was under an obligation to take the necessary measures to ensure that similar violations did not occur in future.

Case No. 1110/2002: Pagayawon Rolando v. Philippines

The author claimed that he was sentenced to death for the rape of a minor after various alleged irregularities prior to and during the trial, and that his right to life (article 6) was denied due to the mandatory imposition of the death penalty upon him.

Tjr Committee found inter alia, a violation of article 6, paragraph 1, recalling its previous jurisprudence, that the automatic and mandatory imposition of the death penalty constitutes an arbitrary deprivation of the life, in circumstances where the death penalty was imposed without any possibility of taking into account the defendant’s personal circumstances or the circumstances of the particular offence.

Case No. 1155/2003: Leirvåg et al. v. Norway

The authors, Norwegian parents and their children, contested the introduction of a mandatory religious subject in the Norwegian school system, entitled “Christian Knowledge and Religious and Ethical Education” (CKREE), with a possibility of partial exemption. They claimed that the compulsory instruction of CKREE violated their freedom of thought, conscience and religion under article 18 of the Covenant, in particular the right of parents to secure the religious and moral education of their children in conformity with their own convictions. They also claimed that the partial exemption system violated their right to privacy under article 17 and was discriminatory.

The Committee concluded that the present framework of CKREE, including the current regime of exemptions, as it had been implemented in respect of the authors, constituted a violation of article 18, paragraph 4 of the Covenant.

Case No. 1222/2003: Byahuranga v. Denmark
The author, a Ugandan national legally resided in Denmark since 1984, with his wife, a Tanzanian national, who has acquired Danish citizenship. They have two children who were both born in Denmark. In 2002, the author was convicted of several drug offenses and sentenced to a prison term. At the same time, the court ordered his expulsion from Denmark on the basis that he would risk no harm upon return to Uganda.

The author claimed that his expulsion would expose him to a real and immediate risk of being subjected to treatment contrary to article 7 upon return to Uganda, where he would be persecuted as a former officer under Idi Amin and a political opponent of Ugandan President Museveni, whom he had publicly criticized at several conferences in Denmark. He further claimed that his expulsion would constitute an arbitrary interference with his right under article 17 to family life, since his wife and children could not leave their home in Denmark to follow him, as well as a violation of the State party’s duty under article 23, paragraph 1, to respect and protect the family.

The Committee found a violation of article 7, considering that the author had made out a prima facie case of his risk of being subjected to ill-treatment in Uganda. However, the Committee found no violation of articles 17 and 23, paragraph 1It noted that the author’s expulsion was based on Section 22 of the Danish Aliens Act and that the State party had advanced significant reasons to justify the interference with his rights.

Committee against Torture

Case No. 133/1999: Falcon Ríos v. Canada
The complainant, a Mexican national, applied for refugee status in Canada in 1997, on the basis that Mexican soldiers had severely tortured him, his parents and his older sister, to extract information about his uncle, a former army member, whom they suspected of having links with the Zapatista separatist movement. His refugee claim was rejected by the Canadian authorities.

The complainant claimed that his forcible return to Mexico would expose him to a risk of being subjected to torture, in violation of article 3 of the Convention. He submitted medical reports, confirming scars on his body and psychological trauma.

The Committee declared the case admissible, insofar as it raised issues under article 3, despite the State party’s objection that the complainant had failed to exhaust domestic remedies, as he had neither applied for approval or judicial review by the Federal Court of the Minister’s refusal to grant him refugee status on humanitarian grounds, nor for a pre-removal risk assessment prior to his expulsion. The Committee recalled that, although an application for humanitarian status is a legal remedy, such status is granted by the Minister on purely humanitarian criteria, and is thus ex gratia in nature. It concluded that this remedy need not be exhausted to satisfy the requirement of exhaustion of domestic remedies and that the question of an appeal against the ministerial decision did not therefore arise. An application for pre-removal risk assessment could only have been based on fresh evidence and was therefore not an effective remedy in the complainant’s case. The Committee found a violation of article 3, based on the medical evidence submitted by the complainant and because the scars on his body increased the likelihood that he would again be arrested and tortured as a suspected supporter of the Zapatistas upon return to Mexico.


Case No 207/2002: Dragan Dimitrijevic v. Serbia and Montenegro

This case involved a Serbian citizen of Romani origin claiming that, in October 1999, he had been arrested by the police in Kragujevac, Serbia, and brutally beaten for several hours to make him confess his participation in a crime. Some time after being released without charges he filed a criminal complaint with the Municipal Public Prosecutor. Since he received no response he wrote again to the Public Prosecutor six months later but to no avail. When he submitted his case to the Committee almost two years after his arrest, no investigation had been carried out.

The Committee examined the case in the absence of State party’s observations despite reminders and concluded that the facts, as described by the complainant, constituted torture. It also concluded that Serbia and Montenegro had violated articles 12, 13 and 14 of the Convention because the case had not been promptly and impartially investigated by the domestic authorities and the complainant had been deprived of his right to seek compensation. The Committee urged the State to conduct a proper investigation into the complainant’s allegations and to inform it of the steps taken in that regard.