HUMAN RIGHTS COMMITTEE AND COMMITTEE AGAINST TORTURE ADOPT DECISIONS ON INDIVIDUAL COMPLAINTS’

24 December 2002



Two United Nations bodies have found violations of civil and political rights and torture treaties in eight countries.
The Human Rights Committee, meeting in Geneva from 14 October to 1 November 2002, concluded that seven of the 14 complaints from individuals it decided on revealed breaches of the International Covenant on Civil and Political Rights. The remaining seven complaints were considered inadmissible. Two of the cases of violations are considered to be of particular jurisprudential interest. They are Zheludkov v. Ukraine, related to access to medical records by prisoners; and C v. Australia, in which the Committee found that the State party's failure properly to attend to the author's deteriorating mental health violated article 7 of the Covenant. However, it must be noted that four Committee members submitted individual opinions in the case against Ukraine, and five members did so in the case against Australia. Attention is drawn to the remedies proposed by the Committee.
The Committee against Torture, meanwhile, adopted nine decisions on individual complaints during its meeting in Geneva from 11 to 22 November 2002. The Committee found a violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in one case against Yugoslavia. It found no violation in three cases filed against Sweden, France and Canada respectively, while five cases filed against Tunisia, Switzerland and France were declared admissible.
The case of Hajrizi v. Yugoslavia is considered to be of particular jurisprudential interest. In this case, the Committee considered that the burning and destruction of a Roma settlement constituted acts of cruel, inhuman or degrading treatment or punishment in the sense of article 16 of the Convention, even if the acts had not been perpetrated by public officials themselves. For the first time, and although the right to compensation is not expressly provided in the Convention for victims of acts of ill-treatment other than torture, the Committee considered that the State party should compensate the victims of such acts.
All the cases finalized by the two Committees are summarized below. The full texts of the decisions can be found on the website of the Office of the High Commissioner for Human Rights, http://www.unhchr.ch/tbs/doc.nsf/WhatsNewMain?OpenView.

Decisions of Human Rights Committee
In the following cases, the Human Rights Committee found that Covenant provisions had been violated.
In Zheludkov v. Ukraine, Communication No 726/1999, submitted by the mother of the alleged victim, on behalf of a prisoner, convicted of rape, the author alleged that Mr. Zheludkov was arrested and detained without being informed during 50 days of the charges against him, and without being brought before a judge or any other official empowered by law to exercise judicial functions during this period, and further that he was ill treated in detention, and was prevented from consulting his medical records. On the basis that the State party had not provided information showing that the procurator had the institutional objectivity and impartiality necessary to be considered an "officer authorized to exercise judicial power" when deciding on custody issues, the Committee found a violation of article 9, paragraph 3 of the Covenant. As to the claims related to Mr. Zheludkov's medical treatment and access to medical records, the Committee noted that while he received medical care and underwent hospitalizations during his detention, the State party's authorities denied him access to his medical records, despite his repeated requests. In the absence of any explanation for such denial, the Committee concluded that the consistent and unexplained denial of access to medical records for Mr. Zheludkov was sufficient ground for finding a violation of article 10, paragraph 1, of the Covenant. The Committee concluded that M. Zheludkov was entitled to an effective remedy, entailing compensation. It invited the State party to ensure that similar violations do not recur in the future, especially by taking immediate steps to ensure that decisions concerning the extension of custody are taken by an authority having the institutional objectivity and impartiality necessary to be considered an "officer authorized to exercise judicial power" within the meaning of article 9, paragraph 3 of the Covenant.
In Pezoldova v. the Czech Republic, Communication No. 757/1997, all of the author's family's properties had been confiscated in 1940, allegedly because of her grandfather's opposition to Nazi policies. The properties were placed under National Administration by the Czechoslovak Government in 1945, and later confiscated pursuant to the Benes' Decrees No. 12 and No. 108/1945, on the ground that the author's grandfather was an ethnic German. In the 1990s, following the collapse of communist administration in 1989, when several restitution laws were enacted, the author applied for restitution to the regional land authorities. However, her applications for restitution were rejected. The Committee considered the admissibility of the author's claims of violations of articles 2, 14, paragraph 1, and 26 of the International Covenant of Civil and Political Rights at its sixty-sixth session in July 1999, and found that only the author's claims that she had been excluded from access to a remedy in a discriminatory manner were admissible as they might raise issues under articles 2 and 26 of the Covenant.
When considering the merits of the case, the Committee noted that the essence of the author's complaint was that the Czech authorities had violated her right to equal treatment by arbitrarily denying her right to restitution on the basis of laws Nos. 229/1991 and 243/1992 with the argument that the properties of her adoptive grandfather were confiscated under law No. 143/1947 and not under Benes' decrees Nos. 12 and 108/1945, and therefore the restitution laws of 1991 and 1992 would not apply. The Committee noted further the author's argument that the State party constantly, until year 2001, denied her access to the relevant files and archives, so that only then could documents be presented that would prove that, in fact, the confiscation occurred on the basis of the Benes' decrees of 1945 and not of Law No. 143/1947, with the consequence that the author would be entitled to restitution under the laws of 1991 and 1992. Consequently, the Committee found that the author was repeatedly discriminated against in being denied access to relevant documents which could have proved her restitution claims, and that this violated article 26 in conjunction with article 2 of the Covenant.
Coronel et al v. Colombia, Communication No. 778/1997. In this case, the authors presented the communication on behalf of their seven deceased family members who were murdered in 1993. They contended that their relatives had been illegally arrested by military forces (article 9), subjected to torture (article 7), arbitrarily deprived of life (article 6) and their right to privacy and freedom from interference in family life had been violated (article 17). The Committee concluded that the Human Rights Division of the Attorney-General's Office acknowledged that State security forces had detained and killed the victims, that the State party had not refuted these facts and that it had not taken the necessary measures against the persons responsible for the murder of the victims, leading to a violation of article 6 of the Covenant. The Committee also found a violation of article 7, although only in respect of four of the victims, as it did not have sufficient information with regard to the three other alleged victims. As to the issue under article 9, the Committee decided that the detentions were illegal in the absence of any arrest warrants. Finally, the Committee concluded that there had been a violation of article 17, paragraph 1, inasmuch as there was unlawful interference in the domiciles of the victims and their families.
Hendricks v. Guyana, Communication No. 838/1998. In this case, the author was arrested on suspicion of murder and held in detention for more than three years until he was tried and sentenced to death on 5 February 1996. The author argued that he was forced to confess and was denied access to a lawyer when questioned after his arrest. He also claimed that his lawyer was absent at one day of the preliminary hearing and that some statements of witnesses were not transmitted to his counsel. The Committee considered that the claim of forced confession and of denial of access to a lawyer constituted issues of facts and evidence that were sufficiently addressed by the domestic Courts, and that it did not appear that the evaluation of evidence was clearly arbitrary or amounted to a denial of justice or that the judge manifestly violated his obligation of impartiality. The Committee also found that the allegation of failure of transmittal of some statements of witnesses was not substantiated. However, consistent with its earlier decisions, and although the question was not raised by the complainant, the Committee found that a pre-trial detention of more than three years constituted, in the absence of appropriate justification, an unreasonable delay, in violation of article 9, paragraph 3 as well as of article 14 paragraph 3 (c), of the Covenant. Concerning the claim of the absence of legal assistance at one day of the preliminary inquiry, the Committee, referring to its earlier decisions, found that it was fundamental that, in capital cases, legal assistance be available at all stages of criminal proceedings and decided that article 14, paragraph 3 (d) and (e), and, consequently, article 6 of the Covenant had been violated in this respect.
Borisenco v. Hungary, Communication No. 852/1999. In this case, the author claimed a violation of article 9, because he was subjected to arbitrary arrest and detention, since he did not understand the reasons for the arrest or the charges against him and because he was detained for three days without being brought before a judicial officer. The author also claimed a violation of the Covenant as he was not provided with legal representation from the time of his arrest to his release from detention, which included a hearing on the detention at which he had to represent himself. The Committee found a violation of article 14, paragraph 3(d), with respect to this latter claim as a legal representative was assigned to the author but failed to appear at both the interrogation and the detention hearing, and the Committee reiterated its prior jurisprudence that it is incumbent upon the State party to ensure that legal representation provided by the State guarantees effective representation. The Committee also found a violation of article 9, paragraph 3, for detaining the author for three days before bringing him before a judicial officer, as the State party had not provided any explanation with regard to the necessity for detaining him for this period. The Committee found no further violations of article 9 as the author did not contest that he had been arrested on suspicion of committing a crime and was provided with an interpreter who explained the reasons for his arrest and the charges against him.
Ruiz Agudo v. Spain, Communication No. 864/1999. In this case, the author, a civil servant, had been sentenced to two years and four months of imprisonment and a fine, for fraud, and to the identical penalty for falsifying a commercial document. The author claimed that Spain had violated his rights under articles 14, paragraphs 1 and 3 c), 7, and 10, paragraph 3. The Committee concluded, in its decision on admissibility taken at its 71st session that articles 7 and 10 had not been sufficiently substantiated for the purposes of admissibility. With regard to the claims under article 14, paragraph 1, the Committee referred to its jurisprudence and reiterated that, while article 14 guarantees the right to a fair trial, it is not for the Committee but for the domestic courts to consider the facts and evidence in a particular case, unless it can be ascertained that the evaluation was clearly biased, arbitrary or amounted to a denial of justice, and that in this case, the documents before the Committee did not demonstrate that the trial suffered from any such defect. With regard to the absence of a verbatim record of the trial, the Committee found that the author had not demonstrated in which way he was caused harm by the absence of this document. Finally the Committee concluded that article 14, paragraph 3 c) had been violated due to the delay of 11 years in the judicial process at first instance and of more than 13 years until the rejection of the appeal.
In C v Australia, Communication No. 900/1999, the author, from Iran, had been detained under mandatory immigration detention provisions in Australia for some years before being granted a refugee permit. Over these years, his mental state deteriorated to a point where he suffered serious mental illness. Upon release from immigration detention, the author, under the direct influence of his mental illness, committed a series of crimes, for which he was convicted and sentenced to a period of imprisonment. Thereafter, the author's deportation to Iran was ordered, on the basis that he represented a danger to Australian society. The author alleged that these facts violated articles 7 (right to be free from torture and other similar treatment) and 9, paragraphs 1 and 4 (right to be free from arbitrary detention and to court review of legality of detention). The Committee decided, in accordance with its earlier jurisprudence in A v Australia, Communication No. 560/1993, that the mandatory detention suffered by the author violated article 9, paragraphs 1 and 4, of the Covenant. It also found that the failure properly to attend to the author's deteriorating mental health violated article 7, and further that to deport him to Iran, in the circumstances, would be a further violation of article 7 of the Covenant.

The Committee declared the following cases inadmissible.
In Baulin v. the Russian Federation, Communication 771/1997, the author had been convicted of murdering his ex-wife. He claimed that the courts were biased against him and that he was not given the benefit of the doubt, since he was convicted on the basis of insufficient and contradictory evidence, in violation of article 14, paragraph 1. He also claimed that the courts' denial of his right to obtain the attendance of witnesses on his behalf and the cross-examination of forensic experts, amounted to a violation of article 14, paragraph 3 e) of the Covenant. The Committee noted that the trial against the author was initiated in 1988 and that the last court ruling was issued in June 1990, that is, prior to the entry into force of the Optional Protocol in respect of the State party on 1 January 1992. Since the author did not make any specific claims based on that continuing effect of alleged violations, on their own constituted a violation of the Covenant, the Communication was declared inadmissible ratione temporis.
In Yama & Khalid v. Slovakia, Communication No. 876/1999, the authors claimed a violation of their rights under article 14 and 26, as they were not given an opportunity to make oral statements or to avail themselves of interpretation facilities while their asylum applications were considered on appeal. The Committee found the case inadmissible for failure to show that the authors had a claim under article 2 of the Optional Protocol, as it was clear that these rights were afforded to the authors during appeal to the Supreme Court with respect to their second asylum applications.
In Collins v. Australia, Communication No. 881/1999, the author claimed a violation of article 10, paragraph 1 because he had to share a cell designated for one person with another inmate, and a violation of article 10, paragraph 2 (a) of the Covenant as he was not segregated from convicted prisoners while he was held on remand. The Committee found the case inadmissible for failure to exhaust domestic remedies, as the author had never claimed within Australian jurisdiction that he personally had been subjected to such treatment in prison that would be contrary to article 10 of the Covenant or any comparable provisions in domestic law.
In Krausser v. Austria, Communication No. 890/1999, a court granted the custody of the author's daughter to his wife following a conviction of the author for bodily harm against his wife. However, when the authorities attempted to enforce this decision, they discovered that the author had brought his daughter to Brazil. The court then ordered the author's detention and issued an international arrest warrant, and in the following years the Austrian Embassy in Brazil repeatedly denied the author a renewal of his passport. With regard to the author's claim that the State Party violated article 12 of the Covenant in denying him a passport and preventing him from leaving Brazil, the Committee found that this part of the communication was inadmissible for failure to exhaust domestic remedies. With regard to the author's claims concerning a decision against his mother for assisting the author in withholding his daughter from the custodial parent, the Committee found that the author had no standing before the Committee, since he did not submit any written evidence of his authority to act on behalf of his mother.
The Committee considered inadmissible for reasons of non-substantiation the author's remaining claims that he had been denied a public hearing and that he had been presumed guilty without possibility for defense in violation of article 14; that requiring him to meet the investigative judge without the presence of an attorney or the public prosecutor was a violation of article 14, paragraph 3 (g); that his conviction on a charge of domestic violence was based on inconclusive facts; that the courts' failure to change its decision entailed a violation of article 14, paragraph 6; that the judicial procedure leading to the decision of the County Court to grant the custody over his daughter to his wife violated articles 14, paragraph 1; 17 and 26; that the Public Prosecutor discontinued investigations of charges of false representation brought by the author against the expert witnesses; and that in treating him differently from people in a comparable situation in Austria, the State Party violated article 26.
In Jonassen v. Norway, Communication No. 942/2000, the authors, who were members of a Saami reindeer herding district, alleged that the State party had failed to recognize and protect their right to let their herds graze on their traditional grazing grounds, in violation of article 27 in conjunction with article 2 of the Covenant. They also alleged a violation of article 26, because the Norwegian Supreme Court in 1997, when rejecting the Saami herding rights in one area, based its considerations on establishment of facts made in the 19th century when the Saamis were discriminated against. The Committee found the claim under articles 26 and 2 inadmissible for non-substantiation, since the authors had not provided information which would call into doubt the finding of the Supreme Court in 1997 that the Supreme Court in 1897 was not biased against the Saamis, and recalled that it is not for the Committee to re-evaluate facts that have been considered by the domestic courts. In respect of the alleged violation of article 27, the Committee rejected the State party's argument that the authors' claim constituted an actio popularis, on the basis that the authors' claim related to denial of their reindeer herding rights in specific areas. With regard to the State party's argument that the authors had not exhausted the remedy of claiming expropriation to the administrative authorities, the Committee considered that the amendment of the Reindeer Husbandry Act and the subsequent negotiations aiming at providing a remedy for the authors provided a reasonable explanation for the length of the examination of the authors' claim by the administrative authorities. It therefore could not conclude that the application of domestic remedies had been unduly prolonged, and found the authors' claim inadmissible for the non-exhaustion of domestic remedies. Nevertheless, the State party was urged to complete all proceedings regarding the authors' herding rights expeditiously.
In Strik v. The Netherlands, Communication No. 1001/2002, the author had been subjected to several disciplinary measures following a report he wrote to his employer, the Municipality of Eindhoven, and to the Municipal Council. With regard to the author's claims that he was punished several times for the same act, and that the he was subjected to a heavier penalty than the one that was applicable at the time of the offence, in violation of articles 14, paragraph 6 and 7, and 15 of the Covenant, the Committee noted that these articles relate to criminal offences, whereas in the author's case only disciplinary measures were imposed, and this part of the claim was declared inadmissible ratione materiae. In respect of the claim that he had been discriminated against on the basis of his age, the Committee noted that the author had not supported his contention with relevant materials or argument, and found that the claim under article 26 taken together with article 5, paragraph 2, was not substantiated for purposes of admissibility. Further, the Committee noted that disciplinary or other sanctions against a municipal official for writing a critical report to his employer, when the latter considered the language as defamatory, could raise issues under article 19 of the Covenant. However, as all disciplinary sanctions imposed as a consequence of the author writing the report in question were later quashed by the courts, the Committee considered that the author had no remaining claim under article 19. Finally, the Committee found that the author's claim that he had been subjected to inhuman treatment under article 7 had not been substantiated for the purposes of admissibility.
In Kavanagh v Ireland (No. 2), Communication No.1114/2002, the author brought a repeat complaint to the Committee in unusual circumstances. The same author had already submitted a complaint to the Committee, where the Committee had decided that his rights under article 26 (right to equality before the law) had been violated in circumstances where the Director of Public Prosecutions had directed that he be tried before a special criminal court system without appropriate reasons being provided for that decision (Communication No. 819/1998). At the same time, the Committee had recommended that the State party provide an "effective remedy". After the Committee's decision, the State party offered the complainant £1,000 for the breach of the Covenant found by the Committee, but its courts declined to take further action, holding that the Covenant and the views of the Committee were not of direct effect in domestic law. The author contended that this was a violation of articles 2 (right to an effective remedy) and 26 (right to equality before the law) of the Covenant. He also alleged that the Director of Public Prosecutions continued to send persons for trial before special criminal courts without providing reasons. The Committee considered that both parts of the communication were inadmissible. It found that a further complaint was not an appropriate place to determine afresh the issues raised as to remedy, and, as to the more general claim, that it related to persons other than the author.

Decisions of Committee against Torture
In the following case, the Committee against Torture found that Convention provisions had been violated.
Hajrizi et al. v. Yugoslavia, Communication No. 161/2000. In this case, the complainants, all of Roma origin, were living in the Bozova Glavica Roma settlement of Danilovgrad, Montenegro. In 1995, this settlement was completely burned and destroyed by non-Roma inhabitants of Danilovgrad as reprisal for the rape of a non-Roma girl allegedly committed by Roma. The police were present in the settlement during the pogrom but did not undertake any measures to prevent the perpetrators from committing their wrongdoings. When the pogrom ended, most of the Roma had fled to Podgorica and the settlement was cleared away by construction machines of the Public Utility Company. No perpetrators or members of the police have ever been tried by the Yugoslavian judicial authorities and the victims have not been compensated so far. The complainants alleged that the burning and destruction of their settlement, while the police only stood by and watched, amounted to acts of torture and other forms of ill-treatment in the sense of articles 1 and 16 of the Convention against torture. They also claimed that they had not received from the authorities the protection to which they were entitled and that no effective judicial measures had been carried out to bring the perpetrators to trial and to compensate the victims.
The Committee found that the burning and destruction of the settlement constituted acts of cruel, inhuman or degrading treatment or punishment in the sense of article 16 of the Convention, even if they had not been perpetrated by public officials themselves. The fact that they had been committed with the acquiescence of such public officials was sufficient for a finding of violation. The Committee also held that Yugoslavia had violated its obligations under articles 12 and 13 of the Convention because it had conducted neither a proper and effective investigation nor appropriate judicial proceedings to try the perpetrators and give redress to the victims. Finally, although the right to compensation is not expressly provided in the Convention against Torture for victims of acts of ill-treatment other than torture, the Committee considered that the positive obligations of Yugoslavia with regard to the Convention included the duty to compensate the victims of such acts. In a common dissenting opinion, two members of the Committee expressed the view that the acts referred to above also constituted acts of torture in the sense of article 1 of the Convention against torture.
In the following cases, the Committee found no violation of the Convention.
IM v. Canada, Communication No.119/1998. In this case, the complainant, an asylum seeker from Honduras, claimed that his removal to Honduras would constitute a violation of article 3 of the Convention against torture because he was allegedly at risk of being subjected to torture in Honduras for knowing compromising information on certain members of the Army. The Committee considered that the complainant had not sufficiently demonstrated that there was a personal risk of torture for him in Honduras.
E. v. France, Communication No. 193/2001. The complainant, suspected to be a member of the Basque separatist organization ETA, had been extradited from France to Spain on different charges related to the preparation of a terrorist attack in Spain. The request for extradition was based on a declaration allegedly made under torture by another person detained in Spain. The complainant argued that France had violated its obligations under article 15 of the Convention, which prohibits the invocation in any legal proceedings of any statement established to have been made under torture. The Committee held that, although a State party to the Convention should also respect such an obligation in an extradition procedure, the French judicial authorities had effectively addressed this allegation and that a complaint of torture related to this declaration was, at the time of the Committee's decision, still pending before the Spanish judicial authorities. The Committee therefore considered that the complainant had not sufficiently demonstrated her claim under article 15 of the Convention against Torture.
In H. H v. Sweden, Communication No. 204/2002, the complainant claimed that he risked being subjected to torture on return to Iran and, therefore, Sweden would be violating article 3 of the Convention if it were to return him there. The Committee decided that the complainant had not established that he personally would risk being subjected to torture within the meaning of article 3 of the Convention. It noted that the main reason the complainant feared a personal risk of torture was because he allegedly had killed a guard in a park in Teheran prior to his departure. Furthermore, the Committee noted that there were inconsistencies in the complainant's allegations of past torture and other information submitted to the Committee and to the Swedish authorities, and that the complainant admitted that he had provided inconsistent information to the State party on his alleged involvement in political activities.
The Committee held three further cases against Tunisia, one against France, and one against Switzerland, admissible. A review of the facts of the cases and on these admissibility decisions will be contained in the Committee's future decisions on the merits.


[The full text of the decisions, in English, French Spanish and Russian, is available on the Website of the Office of the High Commissioner for Human Rights.]



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