HUMAN RIGHTS COMMITTEE RULES ON COMPLAINTS OF VIOLATIONS FROM INDIVIDUALS

4 September 2003




An independent human rights body has found violations of the International Covenant on Civil and Political Rights in 12 countries.

The Human Rights Committee, the panel that monitors how countries implement the Covenant, issued its findings after examining cases brought by individuals alleging breaches. The cases were decided during the Committee’s last session in Geneva, held from 14 July to 8 August 2003.

The Committee considered a total of 32 complaints. Of the 17 cases examined on the merits, two were found to reveal no violations. Thirteen were declared inadmissible and two admissible; the Committee discontinued examination of 15 others.

Of 149 States parties to the Covenant, 104 have recognised the competence to 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 Covenant.
During the same session, the Committee discussed information received that six individuals under sentence of death in Uzbekistan, whose cases are currently pending before the Human Rights Committee, and who alleged that they had not received a fair trial, had been executed, despite the fact that requests for interim measures of protection had been issued by the Committee. The information relates to the cases of Muzaffar Mirzaev (case 1170/2003); Shukrat Andasbaev (case 1166/2003); Ulugbek Eshov (case 1165/2003); Ilkhon Babadzhanov and Maksud Ismailov (case 1162/2003); and Azamat Uteev (case 1150/2003). The Committee deplored the execution of these individuals and reminded the State party of its position that it amounts to a grave breach of the Optional Protocol to execute an individual whose case is pending before the Committee, in particular where a request for interim protection under rule 86 of the Committee's Rules of Procedure has been issued. The Committee reiterated its request for interim protection under rule 86 in all other cases currently pending under the Optional Protocol in respect of Uzbekistan, and its request not to execute individuals before the Committee has concluded its consideration of these cases. It further requested the State party's full cooperation in respect of all cases currently pending before the Committee.


Summary of Cases



The communications considered below are considered particularly interesting in terms of jurisprudence and because they develop the Committee’s case law under a number of substantive provisions of the Covenant. They concern breaches of the Optional Protocol due to removal to a country to face capital punishment (Judge v. Canada); the disappearance of a family member by the military (Sarma v. Sri Lanka); and discrimination on the grounds of sexual orientation (Young v. Australia). There are two cases on the retroactivity of criminal offences (Gomez v. Peru and Baumgarten v. Germany). There are three cases on freedom of expression, one on the diffusion of statements contesting the dimensions of the holocaust (Zündel v. Canada), one on the right to publish textbooks in public schools (Nam v. Korea) and the third on being subjected to the “ideology conversion system” (Kang v. Korea). There is also one case on the interpretation and effects of reservations (Cabal and Pasini v. Australia). Finally, there are two cases on the independence of the judiciary, more particularly the dismissal of judges (Adrien Mundyo Busyo, Thomas Osthudi Wongodi, René Sibu Matubuka et al v. The Democratic Republic of the Congo and Pastukhov v. Belarus).


Case No. 829/1998: Judge v. Canada

In this case, the author escaped from the United States to Canada after being sentenced to death for murder. He committed two robberies in Canada and was sentenced to 10 years imprisonment which he completed. He was then deported back to the United States within hours of a failed appeal to the Superior Court of Quebec, in which he requested a stay on the implementation of the deportation order. Due to the haste with which he was returned, the author could not appeal his case to the Court of Appeal.

The Committee considered the question of whether Canada, which have abolished the death penalty, had violated the author’s right to life guaranteed in article 6, firstly by returning him to face the death penalty without seeking assurances that it would not be carried out and secondly by returning him to the United States before he could exercise his right to appeal the rejection of his application of a stay of his deportation before the Quebec Court of Appeal. The Committee decided in the affirmative on both questions.

The first question had been considered by the Committee for the first time 10 years ago in the case of Kindler v. Canada, Case No.470/1990, Views adopted on 30 July 1993, where the Committee considered that as Canada itself had not imposed the death penalty but had extradited the author to the United States to face capital punishment, a State which had not abolished the death penalty, the extradition itself would not amount to a violation by Canada unless there was a real risk that the author’s rights under the Covenant would be violated in the United States. In reaching this decision the Committee read article 6, paragraph 1 (the inherent right to life) with paragraph 2 (countries which have not abolished the death penalty may impose it for the most serious crimes). In the present case, and in light of the broadening international consensus in favour of the abolition of the death penalty and Canada’s review of its own domestic law on this issue, the Committee decided to review its application of article 6. The Committee concluded that 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, by deporting the author to the United States where he was under sentence of death, Canada established the crucial link in the causal chain that would make possible the execution of the author and therefore violated article 6 of the Covenant.

The Committee also found a separate violation of article 6, together with article 2, paragraph 2 of the Covenant by deporting him to the United States before he could exercise his right to appeal, as Canada failed to demonstrate that his contention that his deportation to a country where he faces execution would violate his right to life, was sufficiently considered.


Case No. 960/2000: Baumgarten v. Germany

In this case, the author, a Director Head of the East German Border Troops, had been convicted of homicide and attempted homicide and sentenced to a prison term of several years by the courts of the Federal Republic of Germany for having issued annual orders on the protection of the inner-German border, including through the use of firearms and the placement of anti-personnel mines, resulting in the deaths and severe injury of persons trying to cross the border to flee the country for West Germany. The German courts considered that the legal defenses authorizing the use of firearms under the applicable East German law were invalid because they manifestly violated basic principles of justice and internationally protected human rights.

The author claimed that his conviction violated articles 15 and 26 of the Covenant, because his orders had been issued in the line of duty and did not constitute a criminal offense under East German law or under international law.

The Committee considered that the German courts were justified in considering that the lethal use of force to prevent individuals from non-violently exercising their right to leave their own country violated the homicide provisions of the East German Criminal Code, concluding that the author’s conviction was not incompatible with article 15 of the Covenant. Furthermore, the Committee observed that the author had failed to demonstrate that his conviction constituted discrimination in violation of article 26 of the Covenant.


Case No. 953/2000: Zündel v. Canada

In this case, the author contested a unanimous resolution by the Canadian Parliament denying him access to the press facilities located within the Parliament buildings, after he had already obtained a booking for a press conference, the announced subject of which was the decision of the Canadian Human Rights Tribunal to reject the “defense of truth” raised by the author in proceedings related to his diffusion of statements contesting the dimensions of the Holocaust.

The author claimed that his exclusion from the Parliamentary precincts was discriminatory and in violation of articles 3, 19 and 26 of the Covenant, since he had fulfilled all necessary criteria for booking the press conference room.

The Committee considered the communication inadmissible, because the author had failed to substantiate his claim under article 3 and had failed to exhaust domestic remedies with regard to the alleged violation of article 26 of the Covenant. Moreover, the Committee found that his claim under article 19, paragraph 2, fell outside the scope of the right to freedom of expression, which in the Committee’s opinion does not include an unfettered right to hold press conferences within parliamentary precincts.


Case No. 950/2000: Sarma v. Sri Lanka

In this case, the author complained that his son had been abducted by members of the military and had since disappeared. The Committee noted that the State party had not denied that the author’s son was abducted by an officer of the Sri Lankan Army on 23 June 1990 and has remained unaccounted for since then. The Committee considered 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 concluded that, in the circumstances, the State party is responsible for the disappearance of the author’s son.

The Committee noted that such an enforced disappearance constitutes a violation of many of the rights enshrined in the Covenant, including the right to liberty and security of person (article 9), the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (article 7), and the right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person (article 10). Although the Committee did not find a violation of the right to life (article 6) in this case (as the author did not ask the Committee to conclude that his son is dead), it stated that such an act constitutes a grave threat to the right to life. Considering the anguish and stress caused to the author’s family by the disappearance of his son, the Committee found that the facts before it revealed a violation of article 7 of the Covenant both with regard to the author’s son and with regard to the author’s family.



Case No. 981/2001: Ricardo Ernesto Gómez Casafranca v. Peru

This case concerned a Peruvian citizen who had been sentenced to 25 years’ imprisonment for the offence of terrorism. The author alleged that he was subjected to ill-treatment while detained in police custody, was arrested without a warrant, held for 22 rather than the statutory 15 days in police detention, and then retried by a faceless court 12 years after the original event and convicted of an offence which did not constitute an offence at the time it was committed.

The Committee found violations of articles 7 (torture or to cruel, inhuman or degrading treatment) for having been ill-treated in prison, 9 (liberty and security of person) for having been arrested without a warrant and 14 (due process guarantees) as a whole for having been retried by a faceless court 10 years after the previous trial. The Committee also found a violation of article 15, as the author was convicted of terrorist offences under legislation which did not exist at the time of committal of the offences even though the previous law, repealed by the legislation, under which the author was convicted applied similar penalties to offences constituting terrorism.


Case No. 941/2000: Young v. Australia

This case concerned an Australian man who applied for a pension on the basis of being a dependent of a war veteran. He was refused as he was not considered a “member of a couple” within the meaning of the pertinent legislation. He complained that the State party's refusal, on the basis of him being of the same sex as his partner, that is, due to his sexual orientation, to provide him with a pension benefit violated his right to equal treatment before the law and was contrary to article 26. As the State party had provided no arguments on how a 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, the Committee found a violation of article 26.


Case No. 1020/2002: Cabal and Pasini v. Australia

In this case, the authors were detained in a high security unit of Port Philip Prison, Victoria awaiting extradition to Mexico.

The authors claimed, a violation of article 10, paragraph 2 (a) of the Covenant, by failing to segregate them from convicted persons, and failing to treat them separately in a manner appropriate to their status as unconvicted persons. They acknowledged that Australia had a reservation to article 10 which reads “In relation to paragraph 2(a) the principle of segregation is accepted as an objective to be achieved progressively”. However, they argued that since 20 years had passed since this reservation was made, and the State party was no closer to achieving its objective, this part of the claim, which concerns segregation, should be found to be admissible. In addition, the authors considered that the right under this article to be treated separately from convicted prisoners was not covered by the reservation which in their view only covered segregation.

The authors also claimed violations of articles 7 (torture or cruel, inhuman or degrading treatment) and 10, paragraph 1 (treat with humanity and respect) for the treatment received including shackling, being stripped and subjected to cavity searches and being placed in a holding cell referred to as a “cage” where the authors were required to alternately stand and sit.

Firstly, the Committee considered whether the State party’s obligations under the Covenant applied to privately-run detention facilities, as is the case in this complaint, as well as State-run facilities. It considered 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 a State party of its obligations under the Covenant.

On the issue of the reservation to article 10 as it relates to the issue of segregation, the Committee recognised that there is no rule under the Covenant on the timeframe for the withdrawal of reservations and therefore couldn’t find that the reservation is incompatible with the object and purpose of the Covenant. This part of the claim was, therefore, considered inadmissible.

The Committee also considered that the reservation does not extend to cover the separate treatment element of article 10, paragraph 2 (a) as it refers to convicted and accused persons. However, it found this part of the claim inadmissible as the authors had failed to substantiate that they had not been treated separately.

On the issue of possible violations of 7 and 10, paragraph 1, of the Covenant, the Committee found a violation of article 10, paragraph 1, with respect to the authors’ detention in the triangular “cage” but found that Australia had sufficiently provided explanations of the authors flight risk to warrant the other treatment of which the authors complained.


Case No. 878/1999: Kang v. Korea

In this case, the author distributed a variety of publications critical to the government and made an unauthorised visit to the Democratic People's Republic of Korea. As a result, he was arrested, allegedly tortured and convicted of offences against the National Security Law. From his conviction in 1986, he was held in solitary confinement and subject to an "ideology conversion system", a penal regime seeking to induce a prisoner to change his or her political opinion by the provision of favourable treatment and benefits. The author, who did not change his political opinion under the "ideology conversion system", remained in solitary confinement until release in 1998 under the terms of an amnesty. He alleged that as a result of these events his rights under articles 10 (appropriate treatment of prisoners), 18 (freedom of thought and belief), 19 (freedom of opinion and expression) and 26 (equality before the law and non-discrimination) of the Covenant. The Committee, while finding some claims inadmissible, found that the application of the "ideology conversion system" to the author violated his rights under articles 18 and 19, in conjunction with article 26, and that his detention in solitary confinement for 13 years breached his rights under article 10 of the Covenant. The Committee considered that the latter measure was "of such gravity, and of such fundamental impact on the individual in question, that it requires the most serious and detailed justification", which had not been provided.


Case No. 814/1998: Pastukhov v. Belarus

In this case relating to the author’s dismissal from his position as a judge of the Constitutional Court by presidential decree of 24 January 1997 N°106, the Committee noted that the decree was not based on the replacement of the Constitutional Court with a new court but that it referred to the author in person and the sole reason given in the presidential decree for the dismissal of the author was stated as the expiry of his term as Constitutional Court judge, which was manifestly not the case. Furthermore, no effective judicial protections were available to the author to contest his dismissal by the executive. The Committee found that the author’s dismissal from his position as a judge, several years before the expiry of the term for which he had been appointed, constituted an attack on the independence of the judiciary and failed to respect the author’s right of access, on general terms of equality, to public service in his country. Consequently, the Committee found a violation of article 25 (c) of the Covenant, read in conjunction with article 14, paragraph 1, on the independence of the judiciary and the provisions of article 2.


Case No. 933/2000 : Adrien Mundyo Busyo, Thomas Osthudi Wongodi, R. Sibu Matubuka & others v. Democratic Republic of Congo


In this case relating to the dismissals of judges by a Presidential Decree of 6 November 1998 N°144, the Committee noted that the authors did not benefit from the guarantees to which they were entitled in their capacity as judges and by virtue of which they should have been brought before the Supreme Council of the Judiciary in accordance with the law, and that the President of the Supreme Court had publicly, before the case had been heard, supported the dismissals that had taken place thus damaging the equitable hearing of the case. Consequently, the Committee considered that those dismissals constitute an attack on the independence of the judiciary protected by article 14, paragraph 1 of the Covenant. The Committee also found that the dismissal measures were taken on grounds that cannot be accepted by the Committee as a justification of the failure to respect the established procedures and guarantees that all citizens must be able to enjoy on general equitable terms of equality. In the absence of any reply from the State party, and inasmuch as the Supreme Court, by its ruling on 26 September 2001, had deprived the authors of all remedies by declaring their appeals inadmissible on the grounds that Presidential Decree N°144 constituted an act of Government, the Committee considered that, in this specific case, the facts show that there has been a violation of article 25, paragraph (c) read in conjunction with article 14, paragraph 1, guaranteed by the independence of the judiciary and article 2, paragraph 1, of the Covenant.




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