Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 August 2011)

On 18 August 2011 the United Nation’s Human Rights Committee published its View adopted in the Communication (Communication No. 1557/2007) submitted by Stefan Lars Nystrom.

In this landmark decision the Committee found that Australia had violated article 12(4) (the right to enter his own country), and articles 17 and 23(1) (protection from arbitrary interference with his family life) of the International Covenant on Civil and Political Rights.

The watershed decision is a significant one – not only for Mr Nystrom who, the Committee held, should be allowed to return to his home country, Australia – but also more generally for the development of the Committee’s jurisprudence on non-citizens and the protection of families. Perhaps most significantly, this is the first time the Committee has found that the right of a person to freely enter his or her ‘own country’ applies to non-citizens.

Background

Mr Nystrom was born in Sweden, while his mother was visiting family members (his mother was a permanent resident of Australia). When he was 25 days old he travelled to Australia, where he had lived since he was 27 days old, holding a Transitional (Permanent) Visa.

Mr Nystrom lived all his life in Australia with his mother and sister, and thought that he was an Australian citizen. He had no close ties to Sweden; he had not learnt the language, and had no direct contact with his aunts, uncles and cousins there.

Mr Nystrom had a substantial criminal record, and was convicted of a number of serious offences, including aggravated rape when he was 16-years old. He was prosecuted for each of these offences under the Australian criminal justice system.

On 12 August 2004 the (then) Minister for Immigration and Citizenship cancelled Mr Nystrom’s Transitional (Permanent) Visa on the basis that he no longer satisfied the character test specified in section 501(6) of the Migration Act 1958 (Cth). Mr Nystrom’s application for judicial review of the decision to cancel his visa was allowed by the Full Federal Court, which ruled that “it is one thing to say that the responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies with the discretion of the responsible minister. That has little to do with the permanent banishment of an absorbed member of the Australian community with no relevant ties elsewhere”.

The decision of the Full Federal Court was subsequently overturned by the High Court of Australia. With no further avenues for domestic redress Mr Nystrom submitted a Communication to Committee, with the assistance of the Human Rights Law Centre.

An application for interim measures to prevent his expulsion to Sweden was rejected by the Committee in late December 2006, and Mr. Nystrom was deported – in quite extraordinary circumstances (see [2.7] – [2.8]) – on 29 December 2006.

Mr Nystrom submitted that Australia had violated its international legal obligations under the Covenant by canceling his visa and deporting him to Sweden. Specifically, Mr Nystrom alleged that Australia had violated articles 9(1), 12(4), 14(7), 17, 23(1) and 26 of the Covenant, as well as article 2(1) read in conjunction with article 14(7), 17 and 23(1). Further, Mr Nystrom submitted that Australia had violated his mother and sister’s rights under articles 17 and 23(1) of the Covenant.

As noted above, the Committee held that there had been a violation of articles 12(4), 17 and 23(1) in respect of Mr Nystrom. The Committee considered that the claim under article 14(7) was inadmissible (for failure to substantiate); that the claim under article 9(1) failed on its merits; and that it was unnecessary to consider the claims under article 26 or article 2(1). The Committee also considered that the claims of the mother and sister failed on their merits.

Article 12(4)

The Committee’s decision on article 12(4) – which protects the right to enter one’s own country – is a particularly important one; unequivocally establishing that an individual may be able to claim protection against arbitrary deportation by a state party even though he or she is not a citizen of that state.

The Committee considered that the threshold question was whether Australia was, indeed, Mr. Nystrom’s “own country”. It held 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” (at [7.4]). The Committee considered that Australia was Mr Nystrom’s “own country”, “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”.

The Committee went on to consider the alleged arbitrariness of the author’s deportation. The Committee noted that “there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable”.

The Committee’s liberal (and entirely appropriate) interpretation of “own country”, together with its suggestion that there are likely to be no circumstances in which expulsion from such country can be anything other than arbitrary, will no doubt resonate far beyond the case of Mr Nystrom.

Articles 17 and 23(1)

The Committee (again, entirely appropriately) considered that the decision of the Australian government to deport an individual who had lived all of his life in Australia, leaving behind his mother, sister and nephews, amounted to an “interference” with the family.

Although the deportation was lawful under the Migration Act 1958, the Committee considered that it was nonetheless arbitrary, and therefore amounted to a violation of articles 17 and 23(1). In undertaking the balancing exercise required to assess the arbitrariness of the decision, the Committee acknowledged the significance of Mr Nystrom’s criminal record, and the Australian government’s stated desire to protect its other residents. However, on balance, the Committee considered that “the Minister’s decision to deport [Mr Nystrom] had irreparable consequences…which [were] disproportionate to the legitimate aim of preventing commission of further crimes, especially given the important lapse of time [9 years] between the commission of offences considered by the Minister and the deportation”.

Conclusions

The Committee held that, as a party to the Optional Protocol to the Covenant, Australia was bound to provide Mr Nystrom with an effective remedy. In the Committee’s view, this would include “allowing the author to return and materially facilitating his return to Australia”. Significantly, the Committee also held that Australia “was under an obligation to avoid exposing others to similar risks of a violation in the future”.

The Human Rights Law Centre should be congratulated for its brilliant advocacy in this case over the past five years. No doubt this advocacy will continue over the coming months. As the Committee’s decision is not domestically binding, Mr Nystrom’s fate now lies in the hands of the Australian government. In light of the government’s recent attitude towards its international obligations (in the refugee context), it seems likely that Mr Nystrom’s battle is not yet over, and it may be some time before he is permitted to return to his own country, and be reunited with his family.

Jason Pobjoy is a PhD candidate at Cambridge University.

L.N.P. v Argentine Republic, Comm. No. 1610/2007, UN Doc. CCPR/C/102/D/1610/2007 (2011)

The Human Rights Committee recently found that Argentina’s treatment of a 15 year-old rape survivor violated articles 2(3), 3, 7, 14(1), 17, 24 and 26 of the International Covenant of Civil and Political Rights.

Facts

L.N.P., an Argentinian of indigenous origin, claimed three young men raped her soon after she turned 15 years of age. She reported the rape to local police immediately and was subsequently sent to the local medical centre. L.N.P. claimed that staff at the police station and medical centre kept her waiting for hours, and that police failed to record a complaint of rape, despite her being in tears and covered in blood. The author also claimed that the medical staff subjected her to painful and unnecessary tests, including to ascertain her virginity.

The three accused were eventually arrested and put on trial. A social worker was appointed as part of the judicial investigation to “enquire into lifestyles, habits and any other factors of interest for the investigation.” The author alleged, however, that the social worker only investigated her, ignoring the three accused. The author further alleged that she was never informed of her right to appear as a plaintiff and proceedings were conducted without an interpreter.

The accused were eventually acquitted of raping L.N.P. Although the trial court found that the alleged sexual acts had been proven, it concluded that it had not been established that they occurred without the author’s consent. The fact that the author was not a virgin was a decisive factor in the court’s finding. The court also made repeated enquiries as to whether the author had a boyfriend and was a sex worker.

After learning of the acquittal almost two year later, L.N.P. submitted a communication to the Human Rights Committee, alleging violations of articles 3, 7, 14(1), 17, 24 and 26 of the ICCPR.

Decision

Right to non-discrimination (ICCPR, art 26)

The Committee concluded that Argentina had discriminated against L.N.P. on the basis of her sex and ethnicity, in violation of article 26 of the Covenant. It noted that the Court based its assessment of whether or not the author consented to the sexual conduct on her sex life, including whether or not she was virgin and a prostitute. It explained that “[t]he court … 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.” Her treatment by the police and medical staff, which included subjecting her to painful and unnecessary treatment, inter alia, to ascertain whether or not she was a virgin, constituted discriminatory treatment aimed at casting doubt on the morality of the victim.

The Committee hinted that the decision of the trial court was based on gender stereotypes, though it stopped short of naming the specific stereotypes in operation. The HRC’s decision in this regard, stands in juxtaposition to the recent decision of the Committee on the Elimination of Discrimination against Women in Karen Tayag Vertido v. The Philippines, which expressly names the gender stereotypes that the trial judge relied upon in acquitting the accused of rape.

Right to such measures of protection as are required by status as minor (ICCPR, art 24)

The HRC determined that the court, police and medical staff failed to adopt measures of protection as required by the author’s status as a minor, in violation of article 24 of the ICCPR.

Equality before the law (ICCPR, art 14(1))

According to the Committee, the failure to inform the author of her right to act as a plaintiff, which prevented her from participating as a party to the proceedings and being notified of the acquittal, as well as irregularities with the court’s procedures, such as the failure to provide an interpreter, constituted a violation of the right to equality before the law.

Freedom from cruel, inhuman or degrading treatment (ICCPR, art 7)

The HRC determined that the physical and mental suffering the author experienced because of how she was treated by police and medical staff after being raped, as well as by the court, amounted to a violation of the freedom from cruel, inhuman or degrading treatment.

Freedom from arbitrary interference in private life (ICCPR, art 17)

The HRC concluded that repeated enquiries made by the social worker, medical staff and the court about the author’s sex life and morality constituted a violation of freedom from arbitrary interference in private life. Recalling its General Comment No. 28 on equality, the HRC reiterated 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.”

Right to an effective remedy (ICCPR, art 3(2) read in conjunction with arts 3, 7, 14(1), 17, 24, 26)

Finally, the HRC determined that Argentina had failed to provide access to an effective remedy, as there was no remedy available to the author that would have enabled her to address the violations of her rights by the trial court.

Relevance to the Victorian Charter

The Victorian Charter does not contain an express prohibition against gender-based violence against women. It does, however, protect almost all of the rights implicated in the L.N.P. decision. Criminal investigations and legal proceedings, including in relation to rape, must be conducted in accordance with the rights protected under the Charter, including the rights to non-discrimination (s 8(2)) and equality before the law (s 8(3)) and the freedoms from cruel, inhuman or degrading treatment (s 10) and from arbitrary interference in private life (s 13). Public authorities are also under an obligation to ensure that victims / survivors of rape, who are minors, receive such protection as is in his or her best interests and is needed by him or her by reason of being their status as minors (s 17(2)).

The decision can be found online at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/454/32/PDF/G1145432.pdf?OpenElement

Simone Cusack is a human rights consultant and author (with Rebecca J Cook) of ‘Gender Stereotyping: Transnational Legal Perspectives’ (2010).

Singh v France, UN Doc CCPR/C/D/102/18767/2009 (22 July 2011)

Summary

The UN Human Rights Committee recently decided that a French regulation requiring persons to appear bare headed in identity photographs used for residency permits constitutes an impermissible limitation on the applicant’s freedom of religion in violation of article 18 of the International Covenant on Civil and Political Rights.

Facts

The author was an Indian refugee who had held a French permanent residence permit since 1992. In 2002 the author submitted an application to renew his permit and provided two photographs of him wearing a turban, as he had done when filing his previous application.

The author’s application was rejected on the basis that the photographs failed to meet the requirements of Decree No. 46-1574 (as amended in 1994), which required all identity photos accompanying residence card applications to show applicants full-faced and bareheaded.

The author contended that as a Sikh, the wearing of a turban was an integral part of his faith and identity and that removing his turban could be viewed as a rejection of his faith and would be deeply humiliating. Moreover, because the photo would be shown as proof of identity, that humiliation would be repeated at every instance where identification is requested. He argued that the relevant provisions of the Decree amounted to a violation of article 18 of the Covenant.

The State party argued that the requirement to appear bareheaded in identity photos was a one-time requirement that constituted a reasonable measure to minimise the risk of fraud or falsification of residence permits and was justified in order to protect public order and safety.

Decision

Under art 18 (2) of the Covenant every person is to be free from coercion which would impair their freedom to have or adopt a religion of their choice. General Comment No. 22 concerning article 18 of the Covenant considers that the freedom to manifest a religion encompasses the wearing of distinctive clothing or head coverings.

Article 18(3) guarantees the freedom to manifest one’s religion or beliefs subject only to reasonable limitations which are prescribed by law, and are necessary for the protection of public safety, order, health, or morals, or to protect the fundamental rights and freedoms of others.

The Committee acknowledged that wearing a turban constitutes a fundamental part of being a Sikh and considered that the Decree interfered with the exercise of freedom of religion. Accordingly, the Committee undertook a balancing exercise to determine whether the limitation of the applicant’s right to manifest his religion or beliefs was authorised under art 18(3).

The Committee found that the State party did not adequately explain why the wearing of the turban would make it more difficult to identify the author, since he wore his turban at all times, or how identity photographs in which people appear bareheaded help to avert the risk of fraud or falsification of residency permits.

The Committee also pointed out that the removal of the turban for the identity photo could not be described as a one-time requirement as he would always appear without his religious head-covering in the photo and could therefore be compelled to remove his turban during identity checks.

The Committee concluded that the requirement that an individual appear bareheaded in an identity photo was a limitation on the author’s freedom of religion in violation of article 18 of the Covenant.

Relevance to the Victorian Charter

The decision provides a good example of analysis concerning the scope of permissible limitations on the right to freedom of religion. This analysis occurs under article 18(3) of the Covenant and s 7(2) of the Charter, but in both cases requires that that any limitation must be justified with clear, cogent and persuasive evidence.

The decision is available at http://www.bayefsky.com/pdf/france_t5_ccpr_1876_2009.pdf.

Richard Collins is undertaking an internship with the Human Rights Law Centre

Zhumbaeva v Kyrgyzstan, UN Doc CCPR/C/102/D/1756/2008 (19 July 2011)

Summary

In this case, the United Nations Human Rights Committee held that Kyrgyzstan was responsible for injuries to, and the death of, a man held in police custody. The Committee based its decision on the principles that a State assumes responsibility for a person that it takes into custody, and that, where that person’s rights are violated, the State must properly investigate and prosecute those responsible to remedy the violation. The Committee’s decision is relevant in a Victorian context because deaths in custody have been and remain an important issue in the Australian political landscape.

Facts

On 24 October 2004, Kyrgyzstani police took Tashkenbaj Moidunov and his wife to a local police station after they were observed arguing in the street. The pair were questioned separately. The victim’s wife was pressured to write a complaint against her husband, but was soon released. The victim died in police custody.

The police officers on duty, Mr Abdukaimov and Mr Mantybaev, gave several contradictory accounts of the victim’s death. On the day of the death:

• The officers told the victim’s wife that her husband suffered a heart attack.
• The officers gave a confused account to the ambulance doctor on the scene. Having been told by the ambulance dispatcher that the victim had hanged himself, the doctor observed red finger marks (but not rope marks) on the victim’s neck. She asked the officers whether the victim had been strangled. They replied that he had suffered a heart attack, and that they had lied to the dispatcher because they had panicked.
•  The officers said in their official statements that the victim had suffered a heart attack.
• Mr Mantybaev recorded in the official deaths register that the officers had found the victim’s body in the street.

In the course of a subsequent official investigation into whether the officers had “negligently performed their duty”, Mr Mantybaev told the prosecutor that the victim hanged himself while unsupervised.

On 21 September 2005, the Suzak District Court found that Mr Mantybaev had negligently performed his duties by failing to take measures to prevent a suicide, and that his negligence resulted inadvertently in the death of the victim. The Court then exempted Mr Mantybaev from criminal liability on the ground that he had reached a reconciliation with the victim’s family.

The victim’s mother appealed the decision to the Zhalabad Regional Court. The Court found that the District Court’s analysis was deficient and ordered a retrial. However, Mr Mantybaev appealed that decision to the Supreme Court of Kyrgyzstan, which quashed the decision of the Regional Court and upheld the decision of the District Court. The victim’s mother, the applicant, then lodged a complaint with the UN Human Rights Committee.

Arguments

The applicant alleged that Kyrgyzstan violated the International Covenant on Civil and Political Rights in three ways:

• It infringed the victim’s right under article 6(1) not to be arbitrarily deprived of his life because he “died in police custody as a result of the use of force by police officers which was excessive and unnecessary”.
• It infringed the victim’s right under article 7 not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, because the officers used unlawful force on him.
• It failed to investigate properly whether the officers were responsible for the victim’s death in contravention of article 2(3).

Decision

The Committee found that all three allegations were sustained.

In relation to the claim under article 6(1), it held that a State assumes responsibility for a person that it takes into custody and that, when a person dies in police custody, the State must properly investigate and prosecute those responsible for the death. The Committee observed that neither Kyrgyzstan nor its judicial authorities had satisfactorily explained the basis upon which it was concluded that the victim committed suicide. This was particularly so because relevant forensic evidence established that the death could have resulted from either hanging or strangulation, and because the officers had given contradictory accounts of the death. In the absence of a satisfactory explanation to the contrary, the Committee held Kyrgyzstan responsible for arbitrarily depriving the victim of his life.

In relation to the claim under article 7, the Committee held that, when a person is injured in police custody, the State must produce evidence to refute any allegation that it was responsible for those injuries. The Committee observed that Kyrgyzstan provided no evidence that its authorities had inquired into – let alone explained – the victim’s injuries.

In relation to the claim under article 2(3), the Committee highlighted that there were several deficiencies in the Kyrgyzstani authorities’ investigation of the victim’s death. Most glaringly, the investigator failed to follow basic forensic procedures, the prosecutor presumed that the victim hanged himself despite substantial evidence to the contrary, the State exempted Mr Mantybaev from criminal responsibility, and the State did not charge Mr Abdukaimov at all.

The Committee determined that Kyrgyzstan was under an obligation to provide an effective remedy; namely, to investigate the victim’s death impartially, effectively and thoroughly, to prosecute those responsible, and to give full reparation.

Relevance to the Victorian Charter

Deaths in custody have been and continue to be an issue of concern in the Australian criminal justice system and political landscape. Section 9 of the Victorian Charter, which establishes a right not to be arbitrarily deprived of life, and section 10, which establishes a right not to be subjected to torture or cruel, inhuman or degrading punishment or treatment, very closely resemble articles 6(1) and 7 of the International Covenant on Civil and Political Rights.

The Committee’s decision in this case could provide interpretative assistance for Victorian courts and tribunals applying these Charter provisions in the context of a death in custody. More specifically, as the Victorian Coroner has an obligation to investigate the death of most persons in custody, the decision highlights one way in which the Coroners Act 2008 (Vic) can be read in light of the Charter.

The decision can be found online at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/450/02/PDF/G1145002.pdf?OpenElement

Andrew Wilcock is a Graduate and Duncan Travis is a Partner at Allens Arthur Robinson.

LMR v Argentina, UN Doc CCPR/C/101/D/1608/2007 (28 April 2011)

Summary

In May 2007, VDA, an Argentine national, submitted a communication to the UN Human Rights Committee on behalf of her daughter, LMR, who has a permanent mental impairment. The communication claimed violations by Argentina of a number of articles under the International Covenant on Civil and Political Rights, including the right to freedom from torture or other cruel, inhuman or degrading treatment, and the right to privacy, arising out of a denial of access to legal abortion.

This decision strengthens the growing body of international jurisprudence regarding reproductive rights and that denying a woman access to an abortion may violate her right to freedom from torture and other cruel, inhuman or degrading treatment and in many circumstances, her right to privacy.

Facts

LMR, a young Argentinean woman, lives with her mother, VDA, in Buenos Aires, and attends a specialised school and receives neurological care for a permanent mental impairment.

In June 2006, VDA took her daughter to Guernica Hospital to determine the cause of LMR feeling unwell. LMR was subsequently found to be pregnant. Upon requesting a termination, the hospital staff refused to perform the procedure and referred LMR to the public San Martin Hospital in La Plata (approximately 100 kilometres away), advising that a complaint would need to be filed with police. The requirement for a complaint was based on section 86.2 of the Argentinean Criminal Code that provides that an abortion performed by a medical practitioner is not illegal if the pregnancy results from the rape of a woman with a mental impairment. This section does not impose a time limit, method of treatment or require judicial approval. During that same month, a complaint was filed with police against LMR’s uncle, who was suspected of having raped her.

At the beginning of July 2006, LMR, now 14 and a half weeks pregnant, was admitted to San Martin Hospital. The hospital’s bioethics committee was convened, and surgical staff began preparations for the procedure on the belief that LMR’s case fell clearly within the section 86.2 exemption. Before the abortion could proceed, however, judicial proceedings were initiated to prevent the abortion and the hospital was issued with an injunction. It is not clear from the HRC communication who sought the injunction, however the judge ruled that any abortion should be prohibited as she did not find it acceptable to repair a wrongful assault (the rape) “with another wrongful assault against a new innocent victim, i.e. the unborn child”. LMR appealed, however was unsuccessful, and was ordered by the Civil Court to be monitored for “the health of the girl and her unborn child… on an ongoing basis”. This Civil Court decision was appealed to the Supreme Court of Justice of Buenos Aires, which on 31 July 2006 (a month and a half after the rape was reported to police) overturned the lower court decisions and ruled that the termination could proceed, as there was no judicial authorisation required for the termination and as the circumstances of the case were not subject to criminalisation, the decision to perform the procedure lay between the LMR, VDA (as legal guardian) and her physicians. The Supreme Court notified San Martin Hospital that it could proceed (also informing them that judicial notification was not a requirement for procedures), however both the hospital and LMR’s family were subsequently subjected to enormous pressure from anti-abortion groups and members of the community, including the Rector of the Catholic University and the Corporation of Catholic Lawyers. No steps were taken by authorities to stop the direct and public threats towards LMR and her family. As a result of the pressure, San Martin refused to perform the abortion on the grounds that the pregnancy was too advanced (20-22 weeks). With assistance from women’s rights organisations, a scan conducted in a private clinic on 10 August demonstrated that LMR was 20.4 weeks pregnant, and around 18-19 weeks pregnant at the date of the Supreme Court ruling.

With the help of women’s rights organisations, the family arranged an illegal termination on 26 August 2006.

Decision

Admissibility

Argentina submitted that the complainant had not exhausted all domestic remedies and the Communication was therefore inadmissible pursuant to article 5(2)(a) of the Optional Protocol to the ICCPR. The HRC however found that regardless, subsection (b) of that same article empowered consideration of the Communication on the merits as Argentina had conceded violations of the ICCPR had occurred, but failed to administer appropriate remedies.

Article 2, Optional Protocol

The HRC determined that the alleged violation of article 2 of the First Optional Protocol (the obligation upon State Parties to take the necessary steps to give effect to rights under the ICCPR) could not be invoked in isolation by an individual. However, in accordance with past HRC findings, the HRC considered the claim of a violation of this article in conjunction with the other allegations made in the Communication. The HRC found that although the judicial remedies available to LMR were ultimately resolved in her favour, LMR had to appear before three different courts, prolonging the pregnancy, with consequences that led to her ultimately having an illegal abortion. The HRC concluded that this amounted to a violation of article 2 of the Optional Protocol in relation to articles 3, 7 and 17 of the ICCPR, as discussed in turn below.

Article 7 – The right to freedom from torture, or cruel, inhuman or degrading treatment

By failing to guarantee LMR’s right to a legal abortion as provided for under the Criminal Code, the HRC concluded that Argentina had violated LMR’s article 7 rights. The HRC deemed the physical and mental suffering LMR was forced to endure was further aggravated by her status as a young woman with a disability, and confirmed that the treatment covered by article 7 extends to acts that cause mental suffering.

This conclusion is similar to the one reached by the European Court of Human Rights in R.R. v Poland [2011] ECHR 828 (26 May 2011), where the European Court found that failure to provide access to abortion violated a woman’s right to freedom from inhuman or degrading treatment.

Article 17 – The right to privacy

The HRC concluded that LMR’s right to privacy was violated by Argentina, due to unlawful judicial interference in a matter that should have been between LMR, her legal guardian, VDA, and her physicians.

Article 18 – The right to freedom of thought, conscience and religion

The Communication alleged that Argentina’s failure to address or stop the pressure and threats from various Catholic groups, and the San Martin Hospital’s conscientious objection violated LMR’s right to freedom of thought, conscience and religion. The Communication alleged that as no time limit is set on the provisions under section 86.2, and the advancement of the pregnancy was incorrect, San Martin Hospital did not refuse to conduct the abortion on medical or legal grounds, but rather on grounds of collective, or institutional conscience. Argentina denied both alleged violations on the basis that the activities of non-government entities could not be attributed to the State, and the hospital’s refusal to treat was based on medical considerations.

The HRC did not consider the merits of the arguments, but rather ruled that the alleged violations under this ground were inadmissible, as VDA did not substantiate that all available domestic remedies for this specific alleged violation had been exhausted.

Remedy

The HRC concluded that Argentina was in breach of articles 7 and 17 of the ICCPR, and in breach of article 2 of the Optional Protocol in relation to ICCPR articles 3, 7 and 17. Whilst the HRC itself cannot order compensation, it was able to highlight to Argentina its obligation under article 2 of the OP that includes providing compensation as an appropriate avenue of redress, and its obligation to take steps to prevent similar violations in the future.

Implications

This HRC decision adds to the developing international legal consensus that restricting a woman’s right to access an abortion may amount to a breach of article 7 of the ICCPR by subjecting her to torture, or cruel, inhuman and degrading treatment.

The decision can be found online at: http://www.bayefsky.com/pdf/argentina_t5_iccpr_1608_2007.pdf.

Alexandra Phelan is a Solicitor with the Human Rights Law Group at Mallesons Stephen Jaques.

McCallum v South Africa, UN Doc CCPR/C/100/D/1818/2008 (2 November 2010)

The Human Rights Committee has found that South Africa violated a prisoner’s rights not to be tortured or treated in a cruel, inhuman or degrading manner and to be treated with humanity and respected when deprived of liberty.  South Africa was also found to have violated its obligation to investigate and remedy the violation of those rights.

Facts

Bradley McCallum, the author, submitted a communication to the UN Human Rights Committee under the First Optional Protocol to the International Covenant on Civil and Political Rights.  The author alleged that violent and degrading treatment inflicted upon him and other prisoners by prison warders, and the subsequent refusal to provide him with medical treatment and HIV testing, amounted to a breach of a number of rights under the ICCPR, including the right not to be subjected to torture or inhuman treatment (art 7) and the right to be treated with humanity and respect when deprived of liberty (art 10).

The author is a prisoner at St Albans Maximum Correctional Facility in Port Elizabeth, in the Province of Eastern Cape.  On 15 July 2005, the author and other inmates in his cell were informed that a warder had been stabbed to death by another prisoner.  On 17 July 2005, they were ordered to leave their cell, strip naked and lie on the floor with their noses in the anus of the inmate in front of them, forming a human chain. The prisoners were taunted, sprayed with water and beaten with batons, shock boards, broomsticks, pool cues and pickaxe handles.  At some point one warder inserted a baton into the author’s anus.  Fear and shock caused the prisoners to defecate and urinate on themselves and others linked to them in the human chain.  After the 17 July incident, the author was deprived of contact with his family and deprived of exercise for a month.  He repeatedly requested access to medical treatment.  He received some form of medical attention in September 2005, but the prison doctor did not continue to treat him because the doctor believed that he was not responsible for treatment of ‘internal’ injuries.  During the incident, the author had been forced down in a way that dislocated his jaw and damaged his teeth.  The author’s teeth were eventually removed, which detrimentally affected his diet and his health and his request for a teeth prosthesis was ignored.  Due to the very high incidence of HIV in South African jails, the author requested that he be tested for HIV because he feared that he may have contracted the virus through his contact with other inmates’ bodily fluids.  The author’s pleas did not result in his being tested for HIV.

The author complained about the incident to prison authorities, to the Office of the Inspecting Judge and to the South African Police Service.  No investigation of the matter by these authorities followed.  The author brought proceedings in the Magistrate Court, but the State denied the author’s allegations.  The author withdrew this action and brought proceedings in the High Court, but the State relied on legislation that required proceedings to be brought against the State and its organs within six months of the alleged cause of action.  The author argued that this provision would defeat his action in the High Court.

Decision

The Committee considered that the author’s claim was admissible, because no other international investigation into the matter was being conducted and because the author had exhausted all available domestic remedies.  Notably, South Africa made no response to the Committee’s continued requests for input on the admissibility and merits of the matter.

The Human Rights Committee found that South Africa violated the author’s rights under arts 7, 10 and 2(3) of the ICCPR.

South Africa breached art 7 of the ICCPR, which provides that ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’ by:

• failing to investigate the author’s claims of ill-treatment;
• holding the author incommunicado for one month after the 17 July incident; and
• not testing the author for HIV, which he feared that he had contracted on 17 July.

The Committee found that South Africa’s failure to investigate the author’s complaints constituted a breach of art 2(3) of the ICCPR, which requires state parties to investigate alleged rights violations, and remedy violations if they are found to have occurred.

The Committee also found that South Africa breached art 10 of the ICCPR, which provides that ‘[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’, due to the delay in prison authorities’ response to the author’s request for medical treatment.  Consistent with its existing jurisprudence, the Committee found that persons deprived of their liberty must be treated in accordance with the United Nations Standard Minimum Rules for the Treatment of Prisoners.

South Africa is obliged, under art 2(3)(a) of the ICCPR, to investigate claims such as those made in this case, prosecute those responsible, and provide a remedy to the victim.  The Committee requested that South Africa provide, within 180 days, information about the measures taken to give effect to the Committee’s views.

Relevance to the Victorian Charter

The Victorian Charter protects and promotes the right not to be subjected to torture or to treatment or punishment that is cruel, inhuman or degrading (s 10), and the right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person (s 22(1)).  The language of these sections of the Charter is almost identical to that of arts 7 and 10 of the ICCPR.  The Committee’s effective incorporation of the United Nations Standard Minimum Rules for the Treatment of Prisoners into Article 10 of the ICCPR is consistent with the interpretation of s 22(1) of the Charter with reference to the Victorian rules that are based on the UN Standard Minimum Rules in Castles v Secretary to the Department of Justice [2010] VSC 310, [107].  South Africa’s violations of the author’s rights under the ICCPR provide extreme examples of violations of rights that the Charter seeks to protect.

The decision is at http://66.36.242.93/docs.php/area/jurisprudence/treaty/ccpr/opt/0/node/4/filename/southafrica_iccpr_t5_1818_2008

Natasha McNamara is a Lawyer at Allens Arthur Robinson

The Human Rights Committee, in consideration of a communication submitted under the Optional Protocol to the International Covenant on Civil and Political Rights, ruled that a man currently imprisoned in Russia had been subjected by the law enforcement authorities to torture or cruel, inhuman and degrading treatment during interrogations and while in detention.

Facts

The author of the complaint to the Committee is a Russian national currently imprisoned in Norislsk, Russia.  On 14 July 2001, the author was arrested for allegedly taking part in an armed attack against a police station in Gudermes (Chechen Republic) on 14 March 2001, and was sentenced to 13 years imprisonment.  He was found guilty of illegal acquisition of fire arms, participation in an illegal armed organisation, terrorism and attempt on the life of law enforcement officials in the exercise of their duties.

The author contended that on the day of his arrest, several armed individuals broke into his house, and without identifying themselves or presenting any warrant, started beating him, his father and his brother.  The police subsequently ‘discovered’ a pistol which he alleges they brought with them.  Based on the finding of the pistol, he was taken to the police station and arrested.  According to the author, the pistol was a mere pretext for his arrest, and there was no mention of it in his criminal case. 

While in detention, the author alleged he was beaten and tortured over three days, where a nylon bag and gas mask were placed on his head to prevent him from breathing, to the point where he lost consciousness on two occasions and had to be revived.  Further, he was prevented from sleeping.  On 17 July 2001, unable to withstand the torture anymore, he agreed to sign all necessary documents.  The author claims that during the preliminary investigation, his requests to be represented by a lawyer were refused and instead, procedural documents were signed by lawyers whom he had never met.

The author claimed that the Russian Federation had breached his rights under arts 2, 5, 7, 9, 14, 20, and 26 of the Covenant. 

The first key issue for the Committee was whether the author’s allegations under arts 2, 5, 7, 9, 14, 20, and 26 were admissible. 

The second issue for the Committee was whether the merits of the claim were made out.

Decision

Admissibility

The Committee found that the author’s allegations under arts 5, 9, 20 and 26 of the Covenant, were inadmissible under the Optional Protocol as the author had not presented sufficient evidence to support his claim. 

However, the Committee considered that the remaining claims regarding violations of arts 7 (freedom from inhuman or degrading treatment or punishment) and 14 (right to a fair hearing) had been sufficiently substantiated and declared them admissible.

Merits

The Committee held that the facts did not support the author’s claim that, because he was not represented by a lawyer during the preliminary investigation, his rights under art 14(3)(a) (which provides a person must be informed promptly and in detail of charges laid against them) had been violated.  The Committee found that the author’s appeal to the Supreme Court contained no claim of non-representation by a lawyer throughout the preliminary investigation.  Further, in the author’s comments dated 31 August 2008, he admitted that he had met with a lawyer during the preliminary investigation.

Similarly, the Committee found, in the absence of any other pertinent information on the file, the facts did not support the author’s claim that his rights under article 14(3)(f) (which guarantees the assistance of an interpreter if required) were violated as he was never offered the services of an interpreter despite his requests. 

However, the Committee concluded the author had established violations of arts 7 and 14(3)(g) (which provides a person should not be compelled to confess guilt) of the Covenant.  The Committee was satisfied the author was beaten and subjected to ill-treatment by the police during the interrogation, in the absence of a lawyer, which forced him to confess guilt.  The Committee noted that the State party had adduced no specific explanation or substantive refutation of these allegations which therefore gave due weight to the author’s allegations. 

Finally, the Committee noted that the State party is required to provide the author with an effective remedy, including the payment of appropriate compensation, pursuit of criminal proceedings to establish responsibility for the author’s ill treatment and to consider the author’s immediate release.

Relevance to the Victorian Charter

Similar to the Covenant, the Victorian Charter provides for the right to a fair hearing (s 24) and protection from torture and cruel, inhuman or degrading treatment (s 10). This decision assists in defining the nature and scope of the state’s obligation to investigate alleged breaches of these rights and the importance of substantive evidence when determining a claim.

The decision is at www2.ohchr.org/tbru/ccpr/CCPR-C-99-D-1577-2007.pdf. 

Ashleigh Ellis is a lawyer with Mallesons Stephen Jaques

Olimzhin Eshonov v Uzbekistan, UN Doc CCPR/C/99/D/1225/2003

A father of a man who died in custody submitted a complaint to the Human Rights Committee (Committee), alleging violations of his son’s rights and his own rights under arts 2, 6 and 7 of the International Covenant on Civil and Political Rights by Uzbekistan.  The Committee found that Uzbekistan had breached the ICCPR, finding the son had been arbitrarily deprived of life, subject to torture or cruel, inhumane or degrading treatment and that Uzbekistan had failed to conduct an adequate and impartial investigation of the allegations.

Facts

The author of the complaint to the Committee was the father of a son who was arrested and died in custody in Uzbekistan.  The author contended that his son was healthy before his arrest and died as a result of his treatment in custody.  The author produced to the Committee photographic evidence of trauma to his son’s body, including bruising, scratching and swelling. 

Initial investigations by authorities in Uzbekistan determined there would not be criminal proceedings initiated in relation to the case.  The author submitted several further petitions to various state bodies including the General Prosecutor requesting further investigations.  Further internal investigations were conducted that concluded that the son died of several chronic health issues including hypertension, chronic anaemia, chronic lung infection and kidney infection resulting in brain haemorrhage.  X-rays showed seven broken ribs, which were explained to be the result of cardiac massage. 

The author contested the findings of the internal investigations, in particular as they were not consistent with the actual injuries as shown in his photographic evidence or his son’s prior medical history as he had never been diagnosed with any of the chronic illnesses documented. 

The author submitted to the Committee that Uzbekistan had failed to properly investigate his claims, in particular by failing to exhume and re-examine the body in an open investigation, and in doing so breached his son’s and his own rights to an effective remedy under art 2 of the ICCPR.  The author submitted that the treatment of his son in custody breached his son’s rights under art 6 (right to life) and 7 (prohibition against torture and ill-treatment) of the ICCPR, and that at minimum, the continued interrogation of his son while he was gravely unwell constituted torture of itself.

The first key issue for the Committee was whether there was sufficient evidence to determine that there had been a breach of arts 6 or 7 of the ICCPR by Uzbekistan against the son. 

The second key issue was whether the investigation into complaints made by the author about the death of his son and alleged breaches of the ICCPR met requirements in art 2 that claims to remedy for breaches under the ICCPR be met with proper inquiry.

Decision

The Committee found that there had been a breach of arts 6 and 7 of the ICPCR both alone and when read in conjunction with art 2, with regard to the author’s son.

The Committee also found that author’s own rights under art 2 had been breached as he had been denied an effective remedy for the death of his son.

In respect of art 2, the Committee was of the view 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 obligation under article 6, paragraph 1, and article 7, read in conjunction with article 2, of the Covenant.

The Committee appears to have drawn adverse inferences against Uzbekistan in light of its failure to complete satisfactory investigation into circumstances of the author’s son’s death:

The Committee considers, therefore, that the State party’s failure to, inter alia, exhume the body and 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 the 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 regards to the author’s son.

The Committee considered that the circumstances illustrated by the author ‘point towards the State party’s direct responsibility for his son’s death by torture’.  As a result, such evidence ‘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 view of the Committee was that ‘the State party is under an obligation to provide the author with an effective remedy in the form, inter alia, of an impartial investigation into the circumstances of his son’s death, prosecution of those responsible and adequate compensation.  The State party is also under an obligation to prevent similar violations in the future.’  The Committee further stated that ‘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.’

Relevance to the Victorian Charter

The principles applied in this decision can be used as guidance for interpreting the Victorian Charter, which similarly protects the right to life (s 9) and the right to protection from torture and cruel, inhuman and degrading treatment (s 10).

In particular, the decision demonstrates that where an ICCPR right is alleged to have been abused, art 2 in conjunction with the allegedly breached rights operates to require a State to conduct an effective and independent investigation. 

The Committee’s view shows a clear position that allegations of human rights abuses must be met by all signatories to the ICCPR with thorough and open investigations.  The Committee appeared prepared to draw adverse inferences from the lack of a thorough investigation, such that it considered arts 6 and 7 had been breached, along with procedural breaches of art 2.

The decision is at www2.ohchr.org/tbru/ccpr/CCPR-C-99-D-1225-2003.pdf. 

Kate Fazio is a lawyer with Mallesons Stephen Jaques

Evangeline Hernandez v The Philippines, UN Doc CCPR/C/99/D/1559/2007 (20 August 2010) 

The Human Rights Committee has held the Philippines breached its obligations under the International Covenant on Civil and Political Rights following the arbitrary killing of a human rights activist by members of the State’s military.  The Committee found that the State party failed to take effective measures both to protect the right to life and to ensure the complete and expeditious prosecution of those responsible for the killing, in violation of arts 6(1) and 2(3) of the Covenant.

Facts

Ms Benjaline Hernandez, a human rights advocate, was conducting research on the impact of the peace process in Mindanao, in April 2002.  On 5 April 2002, Ms Hernandez and three local people were inside a hut which was strafed (attacked by machinegun fire from a low-flying aircraft) by six paramilitaries from the Citizens Armed Force Geographical Unit, led by 7^th Battalion Master Sergeant ‘T’.  All four pleaded for mercy, but were shot dead.  The autopsy on Ms Hernandez revealed that she had been shot twice at close range, while lying on her back.

Representatives of Ms Hernandez’s mother filed a complaint against the security forces for breaching the peace agreement signed by the Philippines government and the National Democratic Front of the Philippines.  The case is yet to be heard by the Joint Monitoring Committee under the peace agreement.  At some length, the Department of Justice filed criminal proceedings, which were still ongoing eight years after the deaths.

Ms Hernandez’s mother submitted a communication to the Human Rights Committee, claiming violations of arts 2(1), 2(3), 6(1), 7, 9(1), 10(1), 17 and 26 of the Covenant.

Decision

Admissibility

The State party disputed the admissibility of the communication on a number of grounds, all of which were rejected by the Committee.

First, the State party pointed out that domestic remedies had not been exhausted prior to submitting the communication, as required by art 5(2)(b) of the Optional Protocol to the Covenant.  Proceedings before the Philippine Commission on Human Rights and the Regional Trial Court were still pending.  The Committee found that, consistent with previous case law, domestic remedies must both be effective and available, and must not be unreasonably prolonged.  In the circumstances, eight years after the killings, criminal proceedings were still incomplete.  Moreover, the State party had provided no explanation for the delay and cited no complicating factors that had contributed to it.  The Committee therefore held that domestic remedies had been unreasonably prolonged, and that it was not precluded from hearing the case on the basis that they had not been exhausted.

The State party also maintained the case was inadmissible as it was being investigated by ‘another procedure of international investigation or settlement’ under art 5(2)(a) of the Optional Protocol, namely the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, who visited the State party in 2007.  The Committee held that fact-finding visits by special rapporteurs do not fall within the meaning of art 5(2)(a).  Accordingly, the communication was not inadmissible on this ground.

Nevertheless, the Committee found that the author’s claims in regard to arts 2(1), 7, 9(1), 10(1), 17 and 26 of the Covenant were inadmissible.  The author had failed to explain, for the purposes of admissibility under art 2 of the Optional Protocol, how those rights had been violated by the State party.  Only claims in relation to arts 6(1) and 2(3) had been substantiated sufficiently to be considered admissible.

Article 6(1): Right to Life

Article 6(1) of the Covenant enshrines the right to life, which must be protected by law and cannot be arbitrarily deprived.

It was not disputed that Ms Hernandez died as a result of being shot in the paramilitary attack.  In the absence of convincing evidence that 7^th Battalion Master Sergeant T was acting in a wholly individual capacity when the killing took place, the Committee found that his actions were attributable to the State’s military organisation, and that the State party was responsible for the death of Ms Hernandez.  Moreover, the State party had not advanced convincing evidence of measures it had taken to protect the right to life or prevent arbitrary killings, as it was obliged to do under art 6.  The Committee thus concluded that a violation of art 6(1) had occurred.

Article 2(3): Provision of Effective Remedies

Under art 2(3), each State party undertakes to provide and enforce effective remedies for victims of rights violations.  In its decision, the Committee emphasised that:

[T]he State party is under an obligation to take effective measures to ensure that the criminal proceedings are expeditiously completed, that all perpetrators are prosecuted, and that the author is granted full reparation, including adequate compensation.  The State party should also take measures to ensure that such violations do not recur in the future.

The Committee found that, while the State party had provided information about some general initiatives that had been adopted to deal with cases of extrajudicial killing, it had failed to provide information about the provision of a remedy in this particular case.  The State party had not explained how the State’s general initiatives would bring about a remedy for the violation, or why a remedy had been delayed in the first place.  The Committee noted that the State party had only managed to initiate one prosecution in relation to the incident, which was, in any case, unreasonably prolonged.  Therefore, the Committee found that the State party had violated art 2(3), read in conjunction with art 6.

Relevance to the Victorian Charter

The right to life is protected under s 9 of the Victorian Charter.  This decision reinforces that the right to life includes a right to the effective, expeditious investigation and prosecution of arbitrary killings.  Excessive and unreasonable delay on the State’s part in this regard will itself constitute a failure to respect and protect the right to life.

The decision is at www2.ohchr.org/tbru/ccpr/CCPR-C-99-D-1559-2007.pdf. 

Sarah Lenthall is a volunteer with the Human Rights Law Resource Centre 

Nikolaus Fürst Blücher von Wahlstatt v Czech Republic, UN Doc CCPR/C/99/D/1491/2006 (19 August 2010)

The Human Rights Committee has found that Czech land laws requiring citizenship as a necessary condition for restitution of property previously confiscated by authorities constitutes a violation of the right to equality before the law.

Facts

Nikolaus Fürst Blücher von Wahlstatt (the author) submitted a communication to the Human Rights Committee under the First Optional Protocol to the International Covenant on Civil and Political Rights, alleging that the application of certain Czech land laws amounted to a violation of a number of rights under the ICCPR, including the rights to equality before the law, equal protection of the law and a fair trial. 

The author claimed to be the lawful heir of certain agricultural properties situated in the Czech Republic.  The properties had belonged to the Von Wahlstatt family since 1832 but were nationalized by the state some time between 1948 and 1949.  The author’s cousin, Alexander Blücher von Wahlstatt (the testator), had owned the properties at the time they were nationalised.  After his death in 1974, the testator bequeathed all of his properties in Czechoslovakia (as it then was) to the author.

In 1991, the Government of the Czech Republic passed Land Law No. 229/1991 to address the land confiscations that had occurred between 1948 and 1989.  The land law made compensation available, but only to citizens of the Czech and Slovak Federal Republic who permanently reside in the territory and whose land and buildings had passed to the State between 1948 and 1989.  Under the land law compensation would also be available to persons who had inherited confiscated properties, provided also that they are citizens of the Czech and Slovak Federal Republic and permanently reside in the territory. 

The author had instituted a large number of proceedings over several years, including administrative restitution proceedings in the district land offices, complaints to the European Court of Human Rights and applications to the Czech Constitutional Court.  The Constitutional Court rejected the author’s application on the basis that the testator, as the bearer of the inherited rights in question at the time of the land confiscation, was not proven to have held Czech citizenship.

In his communication to the Committee, the author alleged that any requirement to prove the citizenship of the testator in order to access compensation for the confiscated properties was discriminatory and violated his right to equality before the law and equal protection of the law in art 26 of the ICCPR.  The author also alleged that the right to a fair trial under art 14 had been violated in a number of previous proceedings.

Decision

The Committee considered that the citizenship requirement in the land law violated art 26 of the ICCPR, whether it was inherent in the law or whether it resulted from an application of the law by the courts.  The Committee reiterated its view in previous decisions that not all differentiations in treatment can be deemed to be discriminatory under art 26.  At 10.2, the Committee observed that ‘a differentiation which is compatible with the provisions of the ICCPR and is based on objective and reasonable grounds does not amount to prohibited discrimination within the meaning of Article 26’.

The Committee pointed to previous decisions where it had found that a legal requirement for citizenship as a necessary condition for restitution of property previously confiscated by authorities makes an arbitrary and discriminatory distinction between individuals who are equally victims of prior State confiscations, and constitutes a violation of art 26.  The Committee considered that this reasoning was all the more pertinent in the present case, where the author himself does satisfy the citizenship criterion but is denied restitution on the basis of his inability to prove the same criterion in respect of the testator.

In light of this finding, the Committee did not go on to consider the author’s other claims regarding the right to a fair trial under Article 14. 

The Committee observed that, by becoming a party to the Optional Protocol, the State had recognised the competence of the Committee to determine whether there has been a violation of the ICCPR, and that, pursuant to Article 2, the Committee had undertaken to provide an effective and enforceable remedy in the event that a violation of one of the rights of its citizens had occurred.

In this case, an effective remedy included appropriate compensation if the properties could not be returned.  The Committee also said that the State should review its legislation to ensure that all persons enjoy both equality before the law and equal protection of the law. 

Relevance to the Victorian Charter

In Victoria, the right to equality before the law and equal protection before the law in s 8(3) of the Charter is in substantially the same terms as art 26 of the ICCPR.  Accordingly, were a Victorian court to consider the compatibility with the Charter of a Victorian law having the effect of the land law, it is likely that a breach of s 8(3) would be established.  However, the prospects for an effective remedy under the Charter are more limited than the remedies available under the ICCPR.  Under s 36 of the Charter, the Supreme Court may make a declaration that a statutory provision cannot be interpreted consistently with a human right under the Charter, but such a declaration does not affect the validity or operation of the statute.

The decision is at www2.ohchr.org/tbru/ccpr/CCPR-C-99-D-1491-2006.pdf. 

Rosannah Healy is a lawyer and Pro Bono Coordinator with Allens Arthur Robinson