HUMAN RIGHTS COMMITTEEEighty-ninth session12-30 March 2007
Submitted by:Walter Obodzinsky (deceased) and his daughter Anita Obodzinsky (not represented)
Alleged victim:Walter Obodzinsky
Date of communication:30 September 2002 (initial submission)
Document references:Special Rapporteur’s rule 97 decision, transmitted to the State party on 14 October 2002 (not issued in document form)
Date of adoption of Views:19 March 2007
GE.07-41910 Subject matter:Citizenship revocation proceedings against elderly man in poor health
Procedural issues: Failure to substantiate complaint - admissibility ratione materiae - failure to exhaust domestic remedies
Substantive issues: Right to life - cruel, inhuman or degrading treatment - liberty and security of person - fair trial ‑ protection of privacy and reputation
Articles of the Covenant: 6, 7, 9, 14 and 17
Articles of the Optional Protocol: 2, 3 and 5, paragraph 2 (b)
On 19 March 2007, the Human Rights Committee adopted the annexed text as the Committee’s Views, under article 5, paragraph 4, of the Optional Protocol in respect of communication No. 1124/2002.
Views of the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights
Communication No. 1124/2002**
Submitted by:Walter Obodzinsky (deceased) and his daughter Anita Obodzinsky (not represented)
Alleged victim:Walter Obodzinsky
State party : Canada
Date of communication:30 September 2002 (initial submission)
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meetingon 19 March 2007,
Having concluded its consideration of communication No. 1124/2002 submitted to the Human Rights Committee by Walter Obodzinsky (deceased) and his daughter Anita Obodzinskyon behalf of Walter Obodzinsky, under the Optional Protocol to the International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the author of the communication, and the State party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1.1The author of the communication, dated 30 September 2002, is Walter Obodzinsky, a Canadian national. He died on 6 March 2004. His daughter, Anita Obodzinsky, has indicated her wish to maintain the communication. It is claimed that Walter Obodzinsky is a victim of violations by Canada of article 6; article 7; article 9; article 14; and article 17 of the International Covenant on Civil and Political Rights. He and his daughter are not represented. The Covenant and the Optional Protocol thereto came into force for Canada on 19 August 1976.
1.2On 7 October 2002, the Special Rapporteur on New Communications and Interim Measures rejected the author’s request for interim measures, by which he sought to stay the citizenship revocation proceedings.
2.1The author was born on 7 May 1919 in Turez, a Polish village that came under the control of the former USSR in 1939. It is now part of the territory of Belarus. According to the State party, the author voluntarily joined the police unit in the Mir district of Belarus, serving from summer 1941 until spring 1943. The State party argues that this unit participated in the commission of atrocities against the Jewish population and persons suspected of having links to the partisans, and that the author went on to become a squadron chief in a formation in Baranovichi that specialized in fighting the partisans. During the summer of 1944, following the retreat of German forces from Belarus, he was incorporated into a division of the Waffen SS and sent to France, where he deserted. He then joined the Polish Second Corps, which at the time was stationed in Italy and under British command.
2.2The author arrived in Canada on 24 November 1946 by virtue of a Government order under which Canada agreed to accept 4,000 former members of the Polish Armed Forces. He was granted permanent residence in April 1950 and became a Canadian citizen on 21 September 1955.
2.3In January 1993, the Canadian Government was informed by the British War Crimes Unit that several witness statements given in England linked the author to the Nazi forces and to the commission of criminal acts. The author was traced to Canada in 1995. Canada’s Crimes Against Humanity and War Crimes Program then conducted an inquiry. During this inquiry, the author was questioned and disclosed his heart problems. The inquiry concluded that the author had obtained admission to Canada by fraudulent means.
2.4Citizenship revocation proceedings began against the author on 27 July 1999, when the Minister of Citizenship and Immigration notified him of her intention to report to the Governor in Council under sections 10 and 18 of the Citizenship Act. When the author received this notice on 30 July 1999, he experienced coronary symptoms. On 19 August 1999, he suffered a heart attack and had to be admitted to hospital for two weeks. His coronary problems dated back to his first heart attack in 1984. Since his life was at risk, the author disclosed full details of his medical condition, in the hope that the Canadian Government would abandon the revocation proceedings. On 24 August 1999, the author requested the referral of the case to the Trial Division of the Federal Court, so that it could determine whether he had acquired citizenship by fraud or false representation, or by knowingly concealing material circumstances.
2.5On 4 May 2000, the author applied to the Trial Division of the Federal Court for a definitive stay of the citizenship revocation proceedings on the grounds that, given his advanced age and precarious health, the very act of initiating and continuing such proceedings impaired his constitutional right to life, liberty and security of person. On 12 October 2000, the Federal Court dismissed the motion. It noted, however, that the author’s precarious health made it difficult or impossible for him to take an active part in the ongoing proceedings without making his condition worse. The Court also stated that a stay of proceedings on grounds of the author’s health would have been appropriate if this had been a criminal case. However, section 7 of the Canadian Charter, which guarantees the accused that the rules of fundamental justice will be observed, including the right to a full and complete defence, applies only to criminal proceedings.
2.6 The author appealed this decision on the additional ground that the proceedings constituted cruel and unusual treatment. On 17 May 2001, following the hearing before the Federal Court of Appeal, the author was again hospitalized, with heart failure. On 23 May 2001, the Federal Court of Appeal dismissed his appeal. On 9 July 2001, the same Court ordered a temporary stay of proceedings pending his application for leave to appeal to the Supreme Court and during any subsequent appeal. This was following the submission of several affidavits from medical practitioners who had examined the author. Most of the affidavits concluded that continuation of judicial proceedings would represent additional stress for the author but did not conclude that continuation of proceedings would be life-threatening. Two affidavits concluded that given the author’s age and previous heart failures, he would not have the “cardiovascular capacity” to sustain prolonged judicial proceedings. On 14 February 2002, the Supreme Court refused the application for leave to appeal.
2.7On 3 April 2002, the author filed a new motion asking the Trial Division of the Federal Court to determine, before trial, some preliminary questions of law: whether sections 10 and 18 of the Citizenship Act were consistent with Canadian constitutional law. On 13 June 2002, the Trial Division dismissed this motion. On 8 September 2002, the author refiled his motion. On 7 October 2002, the Trial Division again dismissed the motion and deferred its decision on the constitutionality of the statutory provisions relating to the procedure.
2.8The hearings to determine whether the author had acquired citizenship by fraud or false representation or by knowingly concealing material circumstances began on 12 November 2002 before the Trial Division of the Federal Court. During final submissions in March 2003, the author again pleaded the issue of the constitutionality of the statutory provisions relating to the citizenship revocation procedure.
3.1The author claims to be a victim of violations by Canada of articles 6, 7, 9, 14 and 17 of the Covenant, on the basis that the continuation of proceedings poses a threat to his health and life. He contends that he has produced extensive medical evidence, uncontested by the State party, establishing that his capacities have been so affected or diminished that he is unable to defend himself without endangering his life and health, unable to collaborate with counsel in the preparation of his defence and unable to attend any hearing or inquiry. He recalls that the right to life, the right to security of person and the right not to be subjected to cruel or inhuman treatment are fundamental rights, and that no derogation may be made from articles 6, 7 and 9 of the Covenant. He emphasizes that the proceedings could lead to his losing all status in Canada, to his deportation from that country and to his death. As to article 17, the author holds that his reputation could be seriously damaged and his privacy violated.
3.2With regard to article 14, the author reiterates that he is unable to defend himself on account of his poor health. He points out that, while the power to revoke citizenship at the conclusion of the proceedings lies solely with the Governor in Council, there is no right in law to a hearing before him or her. There is no right of participation (except for the Minister). The Minister’s report is not disclosed to allow for submissions in response. The author claims a violation of article 14, on the basis that naturalized citizens subject to citizenship revocation proceedings are not granted a hearing before the decision-maker. He believes that the procedure is intended to punish naturalized Canadians such as himself because they are suspected of having been collaborators during the Second World War.
3.3The author contends that he has exhausted all available domestic remedies to obtain a stay of proceedings, since the Supreme Court refused to consider his appeal. He requests the State party to withdraw the proceedings against him.
Observations of the State party on admissibility and merits
4.1In a note verbale dated 23 July 2003, the State party contests the admissibility of the communication. Firstly, it points out that the author has no absolute right to citizenship and that, since the Covenant does not establish such a right, the communication is inadmissible under articles 1 and 3 of the Optional Protocol. The State party also asserts that the citizenship revocation process does not constitute a criminal or analogous proceeding and is not otherwise punitive, since it is of a civil nature. The author’s presence is not required during proceedings, and the author was in any case represented by counsel. Revocation of citizenship is distinct from removal from the country, which would require the initiation of separate proceedings under section 44 of the Immigration and Refugee Protection Act. Moreover, the Minister would still have discretion to permit the author to remain in Canada. This communication in fact concerns the question of whether the Canadian Government’s initiation and continuation of civil proceedings to revoke the author’s citizenship violates the Covenant.
4.2Secondly, the State party argues that the author has not exhausted all available domestic remedies. While the author has exhausted domestic remedies in respect of his claims that the very existence of citizenship revocation proceedings under the Citizenship Act puts his life at risk, a decision on the constitutional challenge to the legislation giving rise to the proceedings remains pending. As to the author’s claim that the very existence of citizenship revocation proceedings constitutes an arbitrary violation of his privacy and reputation under article 17 of the Covenant, the State party maintains that the author has made no attempt to seek redress domestically, no civil claim for defamation or injury to reputation having been filed against the State party.
4.3Thirdly, the State party considers that there is no evidence of a prima facieviolation and that the communication is incompatible ratione materiae. As regards article 6 of the Covenant, the State party argues that the subject of the author’s communication, namely, the fatal consequences arising from the mere initiation of civil proceedings against an elderly person in poor health, does not fall within the scope of this article as interpreted by the Committee. The author himself chose, following his receipt of the notice from the Minister, to exercise his right to have the matter referred to the courts, and the relevant proceedings do not require either his presence or his active participation. The communication therefore fails to adduce any evidence that the mere introduction of citizenship revocation proceedings amounts to a prima facie violation of the author’s right to life. On the same grounds, the State party submits that the communication is inadmissible ratione materiae.
4.4Regarding article 7, the State party notes that the author does not substantiate his argument that the initiation of citizenship revocation proceedings constitutes cruel and inhuman treatment. The initiation of such proceedings does not constitute a “punishment” within the meaning of article 7. In the light of the Committee’s jurisprudence on article 7, the stress and uncertainty allegedly caused by the very existence of proceedings are not of the severity required for a violation of this article. The communication therefore fails to advance prima facie evidence of any cruel, inhuman or degrading treatment or punishment and, further, is incompatible ratione materiae.
4.5Regarding article 9, the State party argues that the author does not substantiate his allegation that this article is violated by the introduction of citizenship revocation proceedings. Article 9 applies mainly, albeit not exclusively, to criminal proceedings, and its interpretation by the Committee is less broad than the author’s complaint implies. In any case, the author has been neither arrested nor detained. As to security of person, the State party contends that there has been no interference with the author’s physical or psychological integrity within the meaning of article 9. The State party therefore considers that the present communication does not contain any evidence of any prima facie violation of article 9. In addition, the author misinterprets the substance and scope of article 9 and the communication should therefore be ruled inadmissible ratione materiae.
4.6Regarding article 14, the State party argues that this article applies only to criminal proceedings or where civil or patrimonial rights are at issue, which is not the case here. The State party recalls that in its jurisprudence the Committee has not determined whether immigration proceedings as such constitute “suits at law”. Nonetheless, article 14, paragraph 1, should not apply. If the Committee is of the view that article 14 does apply in this instance, the State party maintains that the citizenship revocation proceedings meet all the requirements of article 14, paragraph 1, since the author has been granted fair hearings before independent and impartial tribunals. The author does not claim that the Canadian courts that heard and rejected his arguments are not established by law or fail to comply with the guarantees of competence, independence and impartiality. Moreover, while the law does not expressly establish a right to be heard by the Governor in Council, in practice, a person subject to citizenship revocation proceedings is given an opportunity to submit written representations and give reasons why his or her citizenship should not be revoked. The State party therefore considers that the communication discloses no evidence of a prima facie violation of article 14, paragraph 1, and that the communication is inadmissible ratione materiae.
4.7With respect to article 17, if the Committee rejects the argument that the author has failed to exhaust all domestic remedies, the State party maintains that the author’s allegations fail to establish interference by the State such as to violate this article. Should the Committee find that there is interference with the author’s privacy, the State party contends that such interference is lawful under the Citizenship Act. The author also fails to substantiate how the initiation of citizenship revocation proceedings has damaged his reputation. In any event, article 17 does not establish an absolute right to honour and a good reputation. The communication does not disclose any prima facie violation of article 17 and is therefore inadmissible ratione materiae.
4.8The State party recalls that the Committee has pointed out on several occasions that it is not a “fourth instance” competent to re-evaluate findings of fact or evidence, or to review the interpretation and application of domestic legislation by national courts. The author is, however, essentially asking the Committee to re-evaluate the interpretation of national law by the Canadian courts, since he requests the Committee to “correct the mistakes” of interpretation and application of law allegedly made by the Canadian courts. He has not, however, established that the interpretation and application of domestic law was manifestly unreasonable or in bad faith.
4.9If the Committee considers that the communication is admissible, the State party contends that it lacks any merit for the reasons given above.
Author’s comments on the State party’s submissions
5.1In his comments of 17 November 2003, the author points out that his complaint makes no reference to a right to citizenship. As to removal as a potential consequence, although the judicial determination at issue is technically a distinct stage from the actual revocation of citizenship, which may in turn be distinguished from loss of permanent residence and removal, it is not premature to consider the potential consequences of the determination under review. This determination is the only legal obstacle to all of the subsequent steps. The risk of action in breach of the Covenant arising from removal as a potential consequence is therefore sufficiently real and serious.
5.2With regard to the exhaustion of domestic remedies, the author recalls that he appealed for a definitive stay of the citizenship revocation proceedings up to the Supreme Court. He also points out that, on 19 September 2003, the Trial Division of the Federal Court refused to consider the constitutionality of the provisions of the Citizenship Act.
5.3In response to the State party’s argument that the author has not provided evidence that the citizenship revocation proceedings would endanger his life, the author recalls that he provided several affidavits and uncontested expert reports establishing that the continuation of proceedings would “jeopardize his life”, and that he was unable to participate in his defence. He maintains that the continuation of proceedings violates in particular articles 6 and 9 of the Covenant and, further, that the application of article 9 is not limited to cases of detention. While he did request that his case should be referred to the Federal Court following his receipt of the citizenship revocation notice on 30 July 1999, he did so prior to his doctors’ finding that such proceedings could endanger his health, which was made following his heart attack of 19 August 1999. Furthermore, and contrary to the State party’s claims, the evidence shows that the presence and active participation of the author was necessary for a full and complete defence. The author claims that the judge at first instance disregarded the impact of the continuation of proceedings on his health.
5.4As to article 7, the author explains that it is the effect of the proceedings in the particular context of this case that would lead to a violation of his rights and could cause his death. He claims that the proceedings are punitive in nature and in some respects are worse than a prison sentence, since they entail a level of stigma similar to that of a criminal case, without the fundamental guarantees and protections that apply in such cases. Further, he contends that the threat of expulsion from the territory on the grounds of war crimes or crimes against humanity as a result of a civil judgement constitutes cruel and unfair treatment. The State party provides only a civil process for naturalized Canadians suspected of war crimes, but the same does not apply to citizens by birth.
5.5As to article 9, the author argues that security of person encompasses protection against threats to the life and liberty of the person as well as to physical and moral integrity. In this sense, it also concerns the person’s dignity and reputation. The author recalls that the order revoking citizenship alone could lead to the automatic loss of his right of residence in Canada.
5.6As to article 14, the author argues that this article is applicable in his case because the dispute concerns his civil rights, specifically his status as a Canadian citizen. He claims that, as well as subjecting him to unequal treatment because of his particular circumstances, the revocation proceedings fail to provide an opportunity for a fair hearing before the decision maker. He recalls that the case concerns citizenship, not immigration. It is clear from the requirement for a prior judicial determination that this right cannot be withdrawn by the mere exercise of a prerogative. The court’s consideration should not be limited to the issue of false representation. A broader review should be undertaken to safeguard the author’s fundamental right to have any decision affecting his rights taken by an impartial tribunal. The author submits that the procedure under the Citizenship Act does not provide for a hearing before the decision maker who actually revokes citizenship, and that the proceeding violates the Covenant because the decision is not made by an impartial and independent court.
5.7As to article 17, the author explains that he has invoked before the national courts a violation of section 7 of the Canadian Charter of Rights and Freedoms, which covers privacy and reputation. He maintains that the attack on his dignity and reputation is arbitrary to the extent that his circumstances prevent him from defending himself.
Supplementary submissions of the parties
6.1On 28 October 2004, the State party informed the Committee that the author died on 6 March 2004. At the time of his death, his Canadian citizenship had not yet been revoked. The State party recalls that, on 19 September 2003, the Trial Division of the Federal Court decided that the author had acquired his Canadian citizenship by knowingly concealing material circumstances relating to his activities during the Second World War. In accordance with the domestic procedure for revocation of citizenship under the Citizenship Act, the procedure then moved from the judicial to the executive phase. In December 2003, on the basis of the determination of the Trial Division of the Federal Court, the Minister of Citizenship and Immigration approved a report recommending that the Governor in Council should revoke the author’s Canadian citizenship. Before this report was forwarded to the Governor in Council for her decision, the author was given an opportunity to respond. In mid-February 2004, the author’s wife transmitted his comments to the Minister of Justice. The Minister’s response to these comments was sent to the author’s wife in mid-March 2004, and she was informed that any response should be sent before the end of April 2004. This communication remained unanswered.
6.2 At the time, the State party was unaware that the author had died, and only became aware of this on 27 September 2004. The Governor in Council never took a decision on the report recommending the revocation of the author’s Canadian citizenship. After the author’s death, the State party simply abandoned all proceedings concerning him . In the circumstances, the State party contends that the communication is rendered moot and invites the Committee to declare it inadmissible.
7.By a letter dated 13 September 2006, the author’s daughter expressly requested to continue the procedure.
Issues and proceedings before the Committee
Consideration of admissibility
8.1Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with article 93 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.
8.2As required under article 5, paragraph 2 (a), of the Optional Protocol, the Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement.
8.3Concerning the requirement that domestic remedies should be exhausted, the Committee has taken note of the State party’s arguments that the author has not exhausted domestic remedies in relation to his claim of a violation of article 17. The author asserted that he had invoked section 7 of the Canadian Charter of Rights and Freedoms before the national courts. Section 7 states that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. However, the Committee notes that, even if this provision did cover the notion of an arbitrary violation of privacy and reputation, this is not the sense in which it was raised by the author before the national courts (see paragraph 2.5). It follows that the part of the communication on article 17 must be declared inadmissible for failure to exhaust domestic remedies in conformity with article 5, paragraph 2 (b), of the Optional Protocol.
8.4With regard to the claim of a violation of article 6, the Committee takes note of the medical reports submitted by the author. According to the author, this evidence shows that his capacities have been impaired to the point where he is unable to defend himself without endangering his life and health. However, the Committee notes that neither the application for a stay of the citizenship revocation proceedings, nor the revocation procedure itself, required the author’s presence. Furthermore, the author was given an opportunity to submit written representations. The Committee considers that the author has failed to demonstrate how the initiation and continuation of the citizenship revocation proceedings constituted a direct threat to his life, as the medical affidavits he obtained reached different conclusions on the impact of the continuation of judicial proceedings on his health. The Committee therefore considers that the author has failed adequately to substantiate the alleged violation of article 6, for purposes of admissibility. This part of the communication is therefore inadmissible under article 2 of the Optional Protocol.
8.5As to the complaint of a violation of article 9, the Committee notes the author’s argument that the application of this provision is not limited to cases of detention. The Committee, however, considers that the author has not demonstrated how the proceedings initiated against him by the State party constituted a violation of his right to security of person under article 9; the mere initiation of judicial proceedings against an individual does not directly affect the security of the person concerned, and indirect impacts on the health of the person concerned cannot be subsumed under the notion of ‘security of person’. . It follows that the author has failed sufficiently to substantiate this allegation, for purposes of admissibility. This part of the communication is therefore inadmissible under article 2 of the Optional Protocol.
8.6As to the complaint of a violation of article 14, the Committee notes the author’s argument that he was unable to defend himself because, under the law on citizenship, the right to a hearing was available only during the judicial process to determine whether he had acquired Canadian citizenship by false representation or fraud, or by knowingly concealing material circumstances. The author appears to have participated in or at least to have been represented in those hearings, and makes no claim under article 14 in their regard. There was no right to a hearing before the ultimate decision-making authority on the revocation of citizenship, the Governor in Council, who acts primarily on the basis of recommendations of the Minister for Citizenship and the determination of the Trial Division of the Federal Court. . The Committee recalls that, for a person to claim to be a victim of a violation of a right protected by the Covenant, he or she must show either that an act or an omission of a State party has already adversely affected his or her enjoyment of such right, or that such an effect is imminent, for example on the basis of existing law and/or judicial or administrative decision or practice. In the present case, the Governor in Council never took any decision regarding the author and, following the author’s death the State party simply abandoned the proceedings initiated against him. The Committee concludes that in these circumstances the author cannot claim to be a victim of a violation of article 14. This part of the communication is therefore inadmissible under article 1 of the Optional Protocol.
8.7As to the complaint of a violation of article 7, the Committee considers that the author has sufficiently substantiated his allegations for the purposes of admissibility, and that this part of the communication is admissible.
Consideration of the merits
9.1The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol.
9.2As regards the author’s claim of violation of article 7, he argues that he had serious heart problems and that the initiation and the continuation of citizenship revocation proceedings placed him under considerable stress, amounting to cruel and inhuman treatment. The Committee acknowledges that there may be exceptional circumstances in which putting a person in poor health on trial may constitute treatment incompatible with article 7, for example, where relatively minor justice issues or procedural convenience are made to prevail over relatively serious health risks. No such circumstances exist in the present case, in which the citizenship revocation proceedings were provoked by serious allegations that the author participated in the gravest crimes. In addition, on the specific facts of the present case, the Committee notes that the citizenship revocation proceedings were conducted primarily in writing and that the author’s presence was not required. Moreover, the author has not shown how the initiation and continuation of the citizenship revocation proceedings constituted treatment incompatible with article 7 since, as already mentioned, the conclusions of the medical affidavits he obtained differed on the impact of the proceedings on his health. Accordingly, the author has failed to establish that the State party was responsible for causing a violation of article 7.
10.The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it do not disclose a violation of article 7 of the Covenant.
[Adopted in English, French and Spanish, the French text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s annual report to the General Assembly.]