Human Rights Committee
Follow-up progress report on individual communications *
A.Introduction
1.At its thirty-ninth session (9–27 July 1990), the Human Rights Committee established a procedure and designated a special rapporteur to monitor follow-up on its Views adopted under article 5 (4) of the Optional Protocol to the Covenant. The Special Rapporteur for follow-up on Views prepared the present report in accordance with rule 106 (3) of the Committee’s rules of procedure. The present report is based on information provided by States parties and by authors or their counsel that was received or processed up to July 2017.
2.At the end of its 120th session, in July 2017, the Committee had concluded that there had been a violation of the Covenant in 1,010 out of the 1,198 Views it had adopted since 1979.
3.At its 109th session (14 October–1 November 2013), the Committee decided to include in its reports on follow-up to Views an assessment of the replies received from and action taken by States parties. The assessment is based on criteria similar to those applied by the Committee in the procedure for follow-up to its concluding observations on State party reports.
4.At its 118th session (17 October–4 November 2016), the Committee decided to revise its assessment criteria.
Assessment criteria (as revised during the 118th session)
Assessment of replies:
A Reply/action largely satisfactory: The State party has provided evidence of significant action taken towards the implementation of the recommendation made by the Committee.
B Reply/action partially satisfactory: The State party took steps towards the implementation of the recommendation but additional information or action remains necessary.
C Reply/action not satisfactory: A response has been received, but the action taken or information provided by the State party is not relevant or does not implement the recommendation.
D No cooperation with the Committee: No follow-up report has been received after the reminder(s).
E Information or measures taken are contrary to or reflect rejection of the recommendations.
B.Follow-up information received and processed up until July 2017
1.Algeria
Communication No. 2157/2012, Belamrania
Views adopted:27 October 2016
Violation:Article 2 (3), read in conjunction with articles 6 (1) and 7
Remedy:(a) Provide the author with an effective remedy; (b) take steps to prevent similar violations from occurring in the future; and (c) publish the Views and have them widely circulated in the official languages.
Subject matter:Summary execution
Previous follow-up information:None
Submission from the author ’ s counsel: 27 February 2017
The author’s counsel submits that on 17 February 2017, soon after receiving the Committee’s Views (which were transmitted to him on 2 February 2017), the author – the victim’s son – was summoned to the National Security Department central police station of Jijel. The author then contacted his counsels and the Mish’al Association for the Children of the Disappeared in Algeria, with whom he shared his concern that the summons might be related to the Committee’s Views. On 20 February 2017, the author went to the police station, where he was interrogated about a social media account on which he had allegedly defamed members of the local administration, accusing them of corruption. However, the author was indeed primarily interrogated about the complaint he had brought before the Committee. On the same day, at 4 p.m., the author’s home was searched by the police and all the documents relating to the complaint were seized. The author was arrested and presented the next day before the Prosecutor of the Republic of the Jijel tribunal; an arrest warrant was issued on a count of “encouraging terrorism”. According to the author’s family, this is clearly a direct reprisal for having brought the complaint before the Committee.
On 8 March 2017, the Committee, acting through the Special Rapporteur for follow-up on Views and the Rapporteur on reprisals, sent a letter to the State party, transmitting the letter received from the author’s counsel and seeking clarifications, with a deadline of two weeks. The Special Rapporteur for follow-up on Views met with representatives of the Permanent Mission of Algeria to the United Nations Office at Geneva and other international organizations in Switzerland on 14 July 2017 (during the Committee’s 120th session).
Submission from the State party:18 July 2017
The State party explains that on 28 November 2016, the judicial police of Jijel was informed by the authority of Jijel that the author was publicly expressing support for terrorist organizations, including Da’esh. Consequently, a search warrant was issued and documents were seized from the author’s home. On 20 February 2017, the author was interrogated and placed in detention. On 22 February 2017, he was presented before the Prosecutor, charged with “encouraging terrorism” and his detention ordered by the investigative judge. The State party thus claims that the author’s detention was not arbitrary; that his preventive detention did not go beyond the duration permitted by law; that he is accused of a terrorism-related offence; and that the author’s allegations of reprisals are ill-founded, as his arrest and detention are not related to the case he brought before the Committee concerning his father.
Committee ’ s assessment:
(a)Effective remedy: D;
(b)Non-repetition: D;
(c)Publication of Views: D.
Committee ’ s decision: Close the follow-up dialogue, with a note of unsatisfactory implementation of the Committee’s recommendations.
2.Australia
Communication No. 2229/2012, Nasir
Views adopted:29 March 2016
Violation:Article 9 (1), (3) and (4)
Remedy:(a) Provide the author with adequate compensation; (b) prevent similar violations in the future; and (c) publish the Committee’s Views.
Subject matter: Detention and conviction for smuggling of persons
Previous follow-up information:None
Submission from the State party: 13 December 2016
The Committee’s Views will be published on the website of the Australian Attorney‑General’s Department. Australia acknowledges its obligations under the Covenant and takes its obligations under international human rights law seriously. Concerning the issue of mandatory minimum sentencing, Australia welcomes the Committee’s view that mandatory minimum sentencing is not incompatible per se with the Covenant.
Nevertheless, Australia disagrees with the Committee’s view that Australia violated the author’s rights under article 9 (1) of the Covenant. His pretrial immigration detention was justified because he did not have a valid visa to enter or remain in Australia. The Attorney‑General issued a criminal justice stay certificate in respect of the author, with the effect of staying his deportation. This did not alter the basis of his detention under the Migration Act. The author was interviewed by the police on 29 June 2010 and charged in early August 2010. His case was under active investigation during the period between the issuance of the criminal justice stay certificate and the date on which the author was charged. The day after he was charged, the author appeared before a court, which decided that he should be remanded in custody pending his trial. His detention was subject to the supervision and review of the court while he was on remand. For these reasons, Australia considers that the author’s detention was consistent with article 9 (1) and that the author’s immigration detention was sufficiently justified as reasonable, necessary and proportionate in the light of the circumstances of the case.
Regarding article 9 (3), Australia also disagrees with the Committee’s view. It believes that the obligation in article 9 (3) is narrower than the interpretation made by the Committee. The right to be brought promptly before a judge rests on the factual requirement that a person has been arrested or detained on a criminal charge. In this case, the author was not detained on a criminal charge prior to 4 August 2010; rather, he was detained for immigration purposes, specifically, on the basis that he did not have a valid visa.
Australia reiterates its position that article 9 (4) requires the review of the legality of detention under domestic law. The Committee should have considered the author’s claims under article 9 (4) of the Covenant to be lacking in merit.
As Australia does not agree with the Committee’s view that a violation of article 9 (1), (3) or (4) of the Covenant has occurred, it does not accept the Committee’s view that it is obliged to provide adequate compensation to the author or to take steps to prevent similar violations in the future.
Committee ’ s assessment:
(a)Adequate compensation: E;
(b)Non-repetition: E;
(c)Publication of Views: A.
Committee ’ s decision: Close the follow-up dialogue, with a note of unsatisfactory implementation of the Committee’s recommendations.
3.Australia
Communication No. 2233/2013, F.J. et al.
Views adopted:22 March 2016
Violation:Articles 7 and 9 (1) and (4)
Remedy:(a) Provide the authors with an effective remedy, including rehabilitation and adequate compensation; and (b) prevent similar violations in the future, including by revising its migration legislation to ensure its conformity with the requirements of articles 7 and 9 (1) and (4) of the Covenant.
Subject matter:Indefinite detention of persons in migration facilities
Previous follow-up information:CCPR/C/119/3
Submission from the authors ’ counsel: 10 October 2016
The author’s counsel notes the attempt by Australia to reargue the case legally, despite its obligation to give effect to the authoritative Views of the Committee. It has not fulfilled its obligation to provide the authors with an effective remedy, nor to prevent future violations, including by reviewing the Migration Act to ensure its conformity with articles 7 and 9 of the Covenant.
Committee ’ s decision: Close the follow-up dialogue, with a note of unsatisfactory implementation of the Committee’s recommendations.
4.Bosnia and Herzegovina
Communication No. 1966/2010, Hero et a l.
Views adopted:28 October 2014
Violation:Articles 6; and 7 and 9, read in conjunction with article 2 (3)
Remedy:(a) Continue efforts to establish the fate or whereabouts of Sejad Hero; (b) continue efforts to bring to justice those responsible for the victim’s disappearance, without unnecessary delay; (c) ensure adequate compensation for the authors; (d) ensure that the current legal framework is not applied in a manner that requires families to declare the victim dead as a condition for obtaining social benefits and measures of reparation; (e) prevent similar violations in the future; and (f) publish the Committee’s Views.
Subject matter:Enforced disappearance and effective remedy
Previous follow-up information:CCPR/C/115/3
Submission from the State party: 27 May 2016
The Constitutional Court of Bosnia and Herzegovina, in its decision of 23 February 2006, determined that the rights of the authors had been violated and issued appropriate orders to several public authorities to restore the rights of victims and their families. The Missing Persons Institute indicated that Sejad Hero had gone missing on 4 July 1992 in Tihovići, having been apprehended by members of the Yugoslav Army and paramilitaries and taken to a field, where he was probably killed along with other individuals. His body was probably buried in a place which remains unknown to date. There has been no DNA match with the samples collected. The Commission for Human Rights of the Parliament of Bosnia and Herzegovina has discussed the issue of legislative amendments on several occasions and decided to send a letter to the Chair of the House of Peoples of Bosnia and Herzegovina to place the issue on the agenda. The victim’s family meets the requirements for obtaining family disability allowance under the provisions of the law on the social protection of civilian victims of war, but it appears that it has not made a request.
Committee ’ s assessment:
(a)Continue efforts to establish the fate or whereabouts of the victim: B;
(b)Bring to justice those responsible for the victim’s disappearance by the end of 2015: E;
(c)Ensure adequate compensation for the authors: C;
(d)Abolish the obligation for families to declare their missing relatives dead in order to obtain social benefits: B;
(e)Non-repetition: No information;
(f)Publication of Views: No information.
Committee ’ s decision: Follow-up dialogue ongoing.
5.Bosnia and Herzegovina
Communication No. 2048/2011, Kadirić and Kadirić
Views adopted:5 November 2015
Violation:Articles 6, 7 and 9, read in conjunction with article 2 (3), with regard to Ermin Kadirić, and article 7, read alone and in conjunction with article 2 (3), with regard to the authors
Remedy:(a) Intensify efforts to locate Ermin Kadirić’s remains; (b) strengthen efforts to bring to justice those responsible for his arbitrary detention, ill‑treatment and extrajudicial execution and for the concealment of his remains; (c) ensure that any psychological rehabilitation and medical care necessary is provided to the authors; (d) provide effective reparation to the authors, including adequate compensation and appropriate measures of satisfaction; (e) prevent similar violations in the future and ensure, in particular, that investigations into allegations of torture and cruel, inhuman and degrading treatment, summary and arbitrary killings and enforced disappearances and adequate measures of reparation are accessible to the families of victims; and (f) publish the Committee’s Views.
Subject matter:Arbitrary arrest and detention, torture, inhuman and degrading treatment, extrajudicial killing and subsequent removal and concealment of the mortal remains
Previous follow-up information:None
Submission from the State party: 17 May 2016
The case of Ermin Kadirić is being investigated under case number T20 0 KTRZ 0004542 05. The suspect is Radmilo Zeljaja, who is suspected of having committed crimes against humanity. Since its establishment in 2003, the Prosecutor’s Office has taken measures to clarify events and identify perpetrators. It has been conducting investigations into the actions of members of the military, police and civilian authorities, and has undertaken exhumations. A mass grave in Tomašica, in the municipality of Prijedor, was discovered in 2013. It contained the mortal remains of over 400 victims of war crimes, of which 280 have been identified to date. Among them, the remains of Ermin Kadirić were found and exhumed on 11 October 2013. On 17 January 2014, by order of the Prosecutor’s Office, an autopsy was performed and the identity of the deceased was confirmed on 11 June 2014. On the same day, the family of the victim declared that it wished to bury the remains in a particular cemetery in the municipality of Prijedor. The burial took place on 20 July 2014.
The results of the investigation will be used in the prosecution as evidence of the commission of war crimes and crimes against humanity, which involve command responsibility. Evidence of the crimes was transmitted in June 2015 to the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, as additional evidence in the trial of Ratko Mladić, who was charged with genocide in the municipality of Prijedor in 1992. Although identification of perpetrators proves very difficult owing to the lack of direct eyewitnesses, it will be pursued, and there is no statute of limitation. The Court of Bosnia and Herzegovina will not be in a position to provide more information until the person or persons reasonably suspected of the murder of Ermin Kadirić is indicted. The Missing Persons Institute has closed the case as far as searching for the remains is concerned. Regarding compensation to families of missing persons, the Council of Ministers began preparing a new law on the rights of victims of torture in Bosnia and Herzegovina; the law was planned to be before the Parliamentary Assembly by mid-2016.
Committee ’ s assessment:
(a)Locating Ermin Kadirić’s remains: A;
(b)Prosecution: C;
(c)Psychological rehabilitation and medical care for the authors: C;
(d)Effective reparation for the authors, including adequate compensation: C;
(e)Non-repetition: No information;
(f)Publication of Views: No information.
Committee ’ s decision: Follow-up dialogue ongoing.
6.Cameroon
Communication No. 1397/2005, Engo
Views adopted:22 July 2009
Violation:Articles 9 (2) and (3), 10 (1) and 14 (2) and (3) (a)–(d)
Remedy:(a) Immediate release; (b) provision of adequate ophthalmological treatment; (c) prevent similar violations in the future; and (d) publish the Committee’s Views.
Subject matter:Prolonged detention of applicant without trial
Previous follow-up information:CCPR/C/116/3
Submission from the State party: 30 May 2016
According to the State party, the author did not, in the procedure before the Committee prior to the adoption of its Views, make any compensation claim or request legislative amendments. Therefore, these requests should not be accepted by the Committee at the follow-up stage.
The State party notes that the author was released pursuant to decision No. 014/ADD-CRIM/TCS of 7 May 2014.
Committee ’ s assessment:
(a)Immediate release: A;
(b)Provision of adequate ophthalmological treatment: C;
(c)Non-repetition: No information;
(d)Publication of Views: No information.
Committee ’ s decision: Follow-up dialogue ongoing.
7.Canada
Communication No. 1544/2007, Hamida
Views adopted:18 March 2010
Violation:Article 7, read in conjunction with article 2
Remedy:(a) Effective remedy, including a full reconsideration of the author’s expulsion order; (b) prevent similar violations in the future; and (c) publish the Committee’s Views.
Subject matter:Expulsion to Tunisia after rejection of an asylum application
Previous follow-up information:CCPR/C/116/3
Submission from the State party: 19 June 2017
The State party informs the Committee that the author’s most recent application for permanent residence on humanitarian and compassionate grounds was successful. Mr. Hamida became a permanent resident of Canada on 13 July 2016.
Committee ’ s assessment:
(a)Effective remedy: A;
(b)Non-repetition: No information;
(c)Publication of Views: No information.
Committee ’ s decision: Close the follow-up dialogue, with a note of satisfactory implementation of the Committee’s recommendation.
8.Canada
Communication No. 2081/2011, D.T. and A.A.
Views adopted:15 July 2016
Violation:Article 17, read alone and in conjunction with article 23 (1), in respect to the author and her son, A.A., and additionally, article 24 (1), in relation to A.A.
Remedy:(a) Effective re-evaluation of the author’s claims, based on an assessment of the best interests of her child, including his health and educational needs, and adequate compensation; (b) prevent similar violations in the future; and (c) publish the Committee’s Views.
Subject matter:Deportation to Nigeria
Previous follow-up information:None
Submission from the State party: 28 July 2017
The State party submits that its assessment of the facts did not reveal any manifest error or unreasonableness. Nonetheless, the Committee has assessed the underlying facts differently and has unjustifiably substituted its own findings of fact for those made by domestic decision makers. The Committee has relied on information and evidence which post-dates the author’s removal, which was inappropriate. The State party recalls that it considered all of the information available at the time of removal concerning the child’s best interests. The State party reiterates its position that the author’s lack of credibility coloured the entirety of the communication and that the burden was on the author to establish a potential violation upon removal. The Committee accepted a good deal of the author’s evidence without credible and independent supporting evidence.
Notwithstanding the above, the State party has, on an exceptional basis, agreed to allow D.T. to submit an application for permanent residence on humanitarian and compassionate grounds from outside the country. This will include a reconsideration, by a new decision maker, of the risks and hardships that D.T. and her child face in Nigeria and a reconsideration of the best interests of her child. Canada will waive the fees related to the filing of this new application and will process it on a priority basis. The State party will inform the Committee of the outcome of her application. For the time being, D.T. remains in Nigeria.
Committee ’ s assessment:
(a)Effective remedy: B;
(b)Non-repetition: No information;
(c)Publication of Views: No information.
Committee ’ s decision: Follow-up dialogue ongoing.
9.Canada
Communication No. 2118/2011, Saxena
Views adopted:3 November 2016
Violation:Article 13
Remedy:(a) Revise and amend its extradition legislation, including the procedure for consent to a waiver of specialty; and (b) publish the Committee’s Views.
Subject matter:Extradition from Canada to Thailand
Previous follow-up information:None
Submission from the State party: 29 May 2017
The State party recalls that in June 2012, a court in Thailand convicted the author of multiple offences, all of which fell within the scope of his original 2003 extradition order (as amended in 2005). He received a sentence of 10 years’ imprisonment, which he is currently serving in a Thai prison. That sentence is scheduled to expire on 30 October 2019. The author was subsequently tried in Thailand on the charges in the three cases for which Canada had granted a waiver of specialty. On 20 December 2016, he was convicted on those charges by a court in Thailand, which sentenced him to 20 years in prison, to be served consecutively after completion of the above-mentioned 10-year sentence. On 27 April 2017, the Thai authorities advised the Canadian authorities that the author had not yet filed an appeal against the 2016 judgment.
Canada does not agree that the partial waiver of specialty in the author’s case was a violation by Canada of article 13 of the Covenant. Article 13 is a right that can apply only before an individual’s expulsion from the territory of a State party. Its underlying purpose is clearly to prevent arbitrary expulsions. The Committee’s view that Canada violated the author’s article 13 rights after his lawful extradition from Canada is therefore incompatible with the text of article 13 and lacks a connection to the preventive purpose of the right. When Canada consented to a partial waiver of specialty, it did not have obligations under article 13 or any other Covenant provision in relation to the author. In paragraph 11.8 of its Views, the Committee “notes that the waiver was granted notwithstanding its repeated and emphatic assurances that there would be no breach of the specialty rule”. This statement is based on a mistaken understanding of the rule of specialty in extradition law. The rule of specialty is an obligation between extradition partners. It provides that a person who has been extradited may be prosecuted only for the offences for which extradition was granted. The rule of specialty may lawfully be waived by the State from which the person was extradited, which is effectively a rule of comity between States and is recognized as a matter of customary international law. It was not a “breach of the specialty rule” for Thailand to request that Canada waive specialty, and for Canada to consent to waive it. Such circumstances are contemplated by the principles governing specialty. Any statement by Canadian officials regarding the protections provided by the rule of specialty in the author’s case did not preclude the possibility that Thailand could lawfully request, and Canada could lawfully consent to, a waiver of the rule of specialty. Furthermore, the specialty rule does not itself contain any requirement to consult with the individual affected regarding a potential waiver. Canada did not depart in any way from the procedures that are generally extended to individuals who have been extradited.
Concerning remedial recommendations, Canada has carefully considered the procedural fairness issues raised in the Committee’s Views and concluded that it does not need to amend its legislation in order to give effect to the Committee’s recommendation. The International Assistance Group at the Department of Justice Canada, which reviews and coordinates all extradition requests made to Canada, is considering amending its practices accordingly, including by seeking input from extradited persons where a waiver of specialty has been requested by the State to which that person has been extradited. In the author’s case, detailed consideration was given to the requests from Thailand to Canada for the waiver of specialty. A thorough and careful examination of those requests and the supporting evidence was conducted, and Canada found that waiver was warranted in 3 out of 18 cases. The granting of waiver of specialty in the author’s case was lawful and warranted, and Canada will not be re-examining the author’s case.
Concerning publication of the Views, a website maintained by the Government of Canada provides general information on the individual communications processes that apply to Canada at the international level. It includes information on how to file a complaint and how the processes work. This website contains a link to the publicly available treaty body database that is maintained by the Office of the United Nations High Commissioner for Human Rights. The Committee’s Views are now available on that site.
Although Canada is taking steps to address in general the procedural fairness issue that is at the heart of the Views in this case, Canada encourages the Committee to reconsider its interpretation of the scope of article 13.
Committee ’ s assessment:
(a)Legislation amendment: C;
(b)Publication of Views: A.
Committee ’ s decision: Follow-up dialogue ongoing.
10.Denmark
Communication No. 2343/2014, H.E.A.K.
Views adopted:23 July 2015
Violation:Article 7
Remedy:(a) Provide the author with an effective remedy by proceeding to a review of the decision to forcibly remove him to Egypt; (b) prevent similar violations in the future; and (c) publish the Committee’s Views.
Subject matter:Deportation to Egypt
Previous follow-up information:CCPR/C/118/3
Submission from the State party: 3 February 2017
The State party recalls that on 22 September 2015, the Refugee Appeals Board had decided to reopen the author’s asylum case and to make a new assessment of his asylum application, in the light of the Committee’s Views. Accordingly, on 19 November 2015, the Board held an oral hearing, during which the author, represented by legal counsel, was allowed to make a statement. After deliberations, the Board decided to stay the case, pending consultations with the Ministry of Foreign Affairs about the Ultras Ahlawy and its members. On 19 February 2016, the Ministry provided its response, on the basis of which the Board issued a new decision on 26 May 2016. In its decision, it relied on a ruling of an Egyptian appeals court, which had determined on 16 May 2005 that there was no connection between Ultras Ahlawy and terrorism or the Muslim Brotherhood. The Ministry’s response also indicates that Ultras Ahlawy has not developed into a group with political objectives, and that there is no information indicating that its members have been prosecuted merely because of their connection to the fan club. Accordingly, in its decision, the Refugee Appeals Board determined, in a new hearing before a new panel, that the author had failed to render it probable that he has attracted the attention of the Egyptian authorities to such a degree that he risks persecution if returned to Egypt.
On 28 June and 4 July 2016, the author’s counsel sought a further reopening of the case before the Refugee Appeals Board. On 18 July 2016, it appeared that the author had failed to appear at the accommodation centre. His whereabouts remain unknown to date. Pursuant to section 33 (8) of the Aliens Act, the Board cannot consider a request to reopen a case if the applicant’s place of residence is unknown. The State party nonetheless considers that the Board considered the author’s asylum application twice, the second time by a new panel on 26 May 2016. The State party thus considers that it has complied with the Committee’s Views. All decisions of the Human Rights Committee are published on the Board’s website. As for measures of non-repetition, the Committee’s Views will be taken into account by the Danish Immigration Service and the Refugee Appeals Board.
Committee ’ s assessment:
(a)Effective remedy: A;
(b)Non-repetition: B;
(c)Publication of Views: A.
Committee ’ s decision: Close the follow-up dialogue, with a note of satisfactory implementation of the Committee’s recommendations.
11.Denmark
Communication No. 2462/2014, M.K.H.
Views adopted:12 July 2016
Violation:Article 7
Remedy:(a) Review the author’s claim, taking into account the State party’s obligations under the Covenant and the Committee’s Views; and (b) publish the Committee’s Views.
Subject matter:Deportation to Bangladesh
Previous follow-up information:None
Submission from the State party: 10 March 2017
The State party submits that on 25 October 2016, the Refugee Appeals Board reopened the author’s asylum case for a review at an oral hearing, before a new panel, to reconsider his claims in the light of the Committee’s Views. The hearing took place on 19 December 2016. The Board accepted for a fact that the author is homosexual and that he cannot therefore return to his village. However, it determined that there is no basis for assuming that he risks persecution within the meaning of article 7 of the Aliens Act in other parts of Bangladesh. Accordingly, it determined that, despite the difficult conditions for homosexuals in Bangladesh, the author, who is not known to be homosexual outside his village, can be expected to take up residence elsewhere, for example in the town where he resided without any problem for a period of four and a half months after being banished from his village. Consequently, the Board upheld the decision of the Immigration Service and the author was ordered to leave Denmark within seven days of the Board’s decision. The State party submits that it has fully complied with the Committee’s Views.
The Views of the Committee in cases against Denmark involving the Refugee Appeals Board are reported in the Board’s annual report, which is distributed to all members of the Board and includes a chapter on cases brought before international bodies. The annual report is available on the website of the Board. The Board and the Ministry of Foreign Affairs have also made the Committee’s Views publicly available on their respective websites (www.fln.dk and www.um.dk). In the light of the prevalence of the English language in Denmark, the Government sees no reason for a full translation into Danish. The State party is of the opinion that full effect has been given to the Committee’s Views.
Committee ’ s assessment:
(a)Review the author’s claim: A;
(b)Publication of Views: A.
Committee ’ s decision: Close the follow-up dialogue, with a note of satisfactory implementation of the Committee’s recommendations.
12.Denmark
Communication No. 2464/2014, A.A.S.
Views adopted:4 July 2016
Violation:Article 7
Remedy:Deportation to Somalia
Subject matter:(a) Review the author’s claims, taking into account the State party’s obligations under the Covenant and the Committee’s Views; and (b) publish the Committee’s Views.
Previous follow-up information:None
Submission from the State party: 7 February 2017
The State party submits that on 29 August 2016, the Refugee Appeals Board reopened the author’s asylum application for a review with an oral hearing before a new panel, which took place on 8 December 2016. Upon examination of the facts and evidence available, and a full reconsideration of his claims, the majority of the Board upheld the decision of the Immigration Service. The State party submits that it has fully complied with the Committee’s Views.
As for publication of the Views, the State party notes that cases against Denmark involving the Refugee Appeals Board will be reported in the Board’s annual report. The annual report is distributed to all members of the Board for use in their work. It includes a chapter on cases brought before international bodies and is available on the website of the Board. The Board and the Danish Ministry of Foreign Affairs have also made the Committee’s views publicly available on their respective websites (www.fln.dk and www.um.dk).
Committee ’ s assessment:
(a)Effective remedy: A;
(b)Publication of Views: A.
Committee ’ s decision: Close the follow-up dialogue, with a note of satisfactory implementation of the Committee’s recommendations.
13.Ireland
Communication No. 2324/2013, Mellet
Views adopted:31 March 2016
Violation:Articles 7, 17 and 26
Remedy:(a) Provide the author with adequate compensation and make available to her any psychological treatment she needs; (b) prevent similar violations in the future by amending its law on the voluntary termination of pregnancy, including if necessary its Constitution, to ensure compliance with the Covenant, ensuring effective, timely and accessible procedures for pregnancy termination in Ireland; and (c) take measures to ensure that health-care providers are in a position to supply full information on safe abortion services without fearing they will be subjected to criminal sanctions.
Subject matter:Termination of pregnancy in a foreign country
Previous follow-up information:None
Submission from the author ’ s counsel: 31 July 2017
The State party has yet to adopt any meaningful legal reform to fulfil its remedial obligations. A citizens’ assembly was established on 13 July 2016 by the Oireachtas (Irish Parliament), which completed its deliberations on the eighth amendment on 23 April 2017. The citizens’ assembly recommended by majority vote (87 per cent) that the eighth amendment should not be retained in full in the Constitution, but replaced with a provision explicitly mandating the Oireachtas to legislate to address termination of pregnancy. Furthermore, 64 per cent of the assembly voted that abortion should be legal at a woman’s request without restriction as to reason, at least in the first trimester. A clear majority also voted for the legalization of abortion in a range of additional circumstances, including risk to a woman’s health (78 per cent), sexual assault (89 per cent), fatal fetal impairment (89 per cent), severe fetal impairment (80 per cent) and for socioeconomic reasons (72 per cent). If the recommendations of the citizens’ assembly were implemented in full, a constitutional referendum passed and subsequent legislation adopted to that end, the State party would have taken meaningful steps to ensure that the human rights violations that Ms. Mellet suffered would not recur. However, it is unclear if and when a referendum might be held, what the terms will be and what legislative reform will be carried out to give effect to it. Indeed, the citizens’ assembly outcome caused several negative political reactions, including from senior members of the Government. Nevertheless, the new Prime Minister has said that he believes a constitutional referendum on article 40.3.3 of the Constitution should be held in 2018. However, the holding of a referendum is subject to Parliamentary approval. A special Joint Committee of the Oireachtas has now been established to consider the citizens’ assembly outcome and to make recommendations to the Oireachtas on the matter. It will report to Parliament within three months of its first formal meeting, which will be held on 20 September 2017. That said, the Joint Committee is not obliged to follow the recommendations of the citizens’ assembly and the Oireachtas is not obliged to accept the Joint Committee’s recommendations. Many steps therefore need to be taken before the State party complies with the Committee’s recommendation that it amend the law on the voluntary termination of pregnancy to ensure effective, timely and accessible procedures for pregnancy termination in Ireland. Only when the law reform has occurred will it be possible to assess whether it gives effect to the State party’s obligations in this regard. Although the Irish Constitution can be amended only through a public referendum, the Government has a duty to ensure that the terms of the referendum guarantee that women no longer suffer similar human rights violations of the right to freedom from ill-treatment, the right to privacy and the right to equality before the law, as endured by Ms. Mellet. The Government also has a duty to ensure that the Irish people are informed in full of the consequences of the matter before them in a referendum.
Regarding full provision of information on safe abortion services, the State party had reported that its review of the Regulation of Information Act 1995, which governs the extent to which medical professionals in Ireland can provide information on abortion, is ongoing. It is as yet unclear how the review will be carried out, what its parameters will be, when it will be concluded and what reforms it might recommend. The Government’s intention to examine the Act to assess whether its provisions need to be strengthened or clarified in no way amounts to a commitment to undertake relevant legal reforms or to ensure that any future reforms fulfil the Committee’s recommendation on the provision of full information on safe abortion services. Counsel therefore considers that the State party’s action with regard to this aspect of its remedial obligations also remains unsatisfactory. Consequently, the author’s counsel maintains the request that the Committee continue to closely scrutinize the State party’s implementation of the Views under the follow-up procedure until effective law reform measures that meet the requirements outlined by the Committee have been adopted.
Committee ’ s decision: Follow-up dialogue ongoing.
14.Kazakhstan
Communication No. 2304/2013, Dzhakishev
Views adopted:6 November 2015
Violation:Articles 9 (1) and (2), 10 (1) and 14 (1) and (3) (b) and (d)
Remedy:(a) Quash the author’s conviction, release him and, if deemed necessary, conduct a new trial; (b) pending release, provide the author with continuous and effective access to health care in the place of imprisonment; (c) provide the author with appropriate reparation, including adequate compensation; (d) prevent similar violations in the future; and (e) publish the Committee’s Views.
Subject matter:Illegal detention, conditions of detention, unfair trial
Previous follow-up information:None
Submissions from the State party: 3 May and 19 August 2016
The State party reports that the criminal case against the author contained classified documents relating to a State secret, which makes it impossible to conduct a public hearing. Furthermore, the author has not requested a retrial since the adoption of the Committee’s Views. The author has been informed about the legal avenues for requesting compensation. The State party disagrees with the Committee’s finding of a violation of the author’s rights under article 14 of the Covenant, since the author was provided with legal assistance throughout the trial in his criminal case and was offered the possibility of having his case heard by a jury, although he did not choose to do so. Upon arrival at the correction facility, the author was examined by doctors and he regularly receives outpatient and inpatient medical treatment. His current health condition is satisfactory and he is being provided with the necessary medical treatment. On 23 April 2016, the author underwent a medical examination in the Kapshagay town hospital (a medical certificate to that effect is submitted) and received medical recommendations. On 25 July 2016, the author was sent to the Almaty city central clinical hospital for additional medical examinations. There is currently no possibility of releasing the author, as he is serving his prison sentence on the basis of a binding judgment. A reopening of criminal proceedings could happen only pursuant to a request from the author himself, or from the Prosecutor-General. No such requests have been submitted to date.
Submission from the author ’ s counsel: 21 June 2016
The author’s counsel reports that there have been no implementation measures on the part of the State party and requests the Committee to closely monitor the situation.
Committee ’ s assessment:
(a)Quash the author’s conviction and release him and, if deemed necessary, conduct a new trial: C;
(b)Pending release, provide the author with continuous and effective access to health care in the place of imprisonment: B;
(c)Provide the author with appropriate reparation, including adequate compensation: C;
(d)Non-repetition: No information;
(e)Publish the Committee’s Views: No information.
Committee ’ s decision: Follow-up dialogue ongoing.
15.Kazakhstan
Communication No. 2131/2012, Leven
Views adopted:21 October 2014
Violation:Article 18
Remedy:(a) Provide the author with an effective remedy, including review of his conviction and of the cancellation of his residence permit; (b) prevent similar violations in the future; and (c) publish the Committee’s Views.
Subject matter:Conviction with a fine and expulsion from the State party of a foreign national for participating in religious ceremonies
Previous follow-up information:CCPR/C/118/3
Submission from the State party: 28 December 2015
The State party submits that several organizational and practical measures were taken to prevent similar violations in the future. On 5 November 2015, the Public Prosecutor’s Office in Astana initiated a cassation review of the administrative conviction of a member of the Jehovah’s Witnesses community who had been convicted for unlawful missionary activities. As a result, the Astana City Court quashed the conviction and terminated the proceedings against the member. Furthermore, in December 2015, the Office of the Prosecutor-General of Kazakhstan held a meeting with Shane Brady, legal counsel representing 48 Jehovah’s Witnesses in proceedings before the Committee. The Office of the Prosecutor-General issued guidelines to public authorities urging them to strictly uphold the right to freedom of religion, as enshrined in the Covenant.
Committee ’ s assessment:
(a)Review the author’s conviction and the cancellation of his residence permit: C;
(b)Non-repetition: B;
(c)Publication of Views: No information
Committee ’ s decision: Follow-up dialogue ongoing.
16.Kazakhstan
Communication No. 2137/2012, Toregozhina
Views adopted:21 October 2014
Violation:Articles 9, 19 and 21
Remedy:(a) Provide the author with an effective remedy, including review of her conviction, and adequate compensation, including reimbursement of the legal costs incurred; (b) prevent similar violations in the future by reviewing the State party’s legislation, in particular the Law on the Order of Organization and Conduct of Peaceful Assemblies, Meetings, Processions, Pickets and Demonstrations, with a view to ensuring that the rights under articles 19 and 21 of the Covenant may be fully enjoyed in the State party; and (c) publish the Committee’s Views.
Subject matter:Arrest and conviction for an administrative violation and sentencing to a fine for conducting an art-mob
Previous follow-up information:CCPR/C/118/3
Submission from the State party: 21 September 2016
The State party submits that on 2 September 2016, the author requested the Office of the Prosecutor-General to lodge an appeal before the Supreme Court of Kazakhstan. The Office has requested the case materials for examination; the results of the examination will be communicated to the Committee.
Committee ’ s assessment:
(a)Review the author’s conviction and provide her with adequate compensation: C;
(b)Non-repetition, including reviewing the State party’s legislation: C;
(c)Publication of Views: No information.
Committee ’ s decision: Follow-up dialogue ongoing.
17.Kazakhstan
Communication No. 2129/2012, Esergepov
Views adopted:29 March 2016
Violation:Articles 9 (5), 14 (1) and (3) (b) and (d) and 19 (2)
Remedy:(a) Provide the author with an effective remedy, including adequate compensation; (b) prevent similar violations in the future; and (c) publish the Committee’s Views.
Subject matter:Author tried and convicted for publishing documents classified as secret
Previous follow-up information:None
Submissions from State party: 20 May and 26 September 2016
The State party reports that, in order to give effect to the Committee’s recommendation, the domestic authorities, including the Supreme Court of Kazakhstan, were familiarized with the Views. They have also been published on the website of the Public Prosecutor’s Office. On 9 June 2016, the author requested that the Supreme Court of Kazakhstan reopen criminal proceedings against him, in view of the newly discovered facts. He also requested that the proceedings be terminated due to the absence of corpus delicti and that the public officials responsible for the violation of his rights be sanctioned. On 20 June 2016, the Supreme Court rejected his application for lack of jurisdiction over the matter. The author was informed about the proper legal avenue to obtain re-examination of his case. On 13 June 2016, the author lodged a civil claim against a number of State authorities and public officials, including the President of Kazakhstan, seeking official apologies and compensation. On 16 June 2016, Medeu District Court in Almaty rejected that claim on the grounds that it had been lodged against the President, who enjoys immunity. On 25 August 2016, Almaty City Court upheld that ruling on appeal. On 31 August 2016, the author lodged another civil claim with the Supreme Court, seeking to obtain compensation, in accordance with the Committee’s recommendation in its Views. That claim is currently pending.
Submissions from the author: 20 June and 25 September 2016, and 28 January and 9 February 2017
The author denounces the reluctance of the State party to comply with the Committee’s Views and reports that he is contemplating going on hunger strike in protest. The domestic courts have unlawfully refused to accept his civil claims, making it impossible to obtain compensation for damages sustained as a result of the violation of his rights. None of the public official responsible for his unlawful detention in the correction facility after the expiration of his prison term has been punished to date. The author confirms that he has lodged a civil claim against a number of State authorities and public officials with a view to receiving official apologies and compensation for the violation of his rights. On 16 June 2016, Medeu District Court of Almaty rejected his claim against the President of Kazakhstan, on the ground of immunity, but in doing so, ignored the fact that his claim was also directed against a number of State authorities and public officials. On 25 October 2016, that decision was upheld on appeal. His complaint to the President of the Supreme Court did not garner any positive results. The judicial authorities failed to indicate the correct avenue for obtaining reparation in his case.
Committee ’ s assessment:
(a)Adequate compensation: E;
(b)Non-repetition: No information;
(c)Publication of Views: A.
Committee ’ s decision: Follow-up dialogue ongoing.
18.Kyrgyzstan
Communication No. 2231/2012, Askarov
Views adopted:31 March 2016
Violation:Article 7, read alone and in conjunction with article 2 (3), and articles 9 (1), 10 (1) and 14 (3) (b) and (e)
Remedy:(a) Provide the author with an effective remedy, including by taking appropriate steps to immediately release him; (b) quash the author’s conviction and, if necessary, conduct a new trial, in accordance with the principles of fair hearings, presumption of innocence and other procedural safeguards; (c) provide the author with adequate compensation; (d) take steps to prevent similar violations occurring in the future; and (e) publish the Committee’s Views.
Subject matter:Torture; unfair trial; detention conditions; discrimination
Previous follow-up information:None
Submission from the author: 24 January 2017
The author submits that the State party has failed to implement the Committee’s Views, that he was subjected to torture in detention while awaiting the re-examination of his case, that he was not provided with adequate facilities to prepare his appeal and that he intends to start a hunger strike.
Committee ’ s assessment:
(a)Release the author: No information;
(b)Quash the author’s conviction and, if necessary, conduct a new trial: B;
(c)Provide the author with adequate compensation: C;
(d)Non-repetition: C;
(e)Publication of Views: No information.
Committee ’ s decision: Follow-up dialogue ongoing.
19.Kyrgyzstan
Communication No. 1756/2008, Zhumabaeva
Views adopted:19 July 2011
Violation:Articles 6 (1) and 7, and 2 (3) read in conjunction with articles 6 (1) and 7
Remedy:(a) Provide the author with an effective remedy, including by conducting an impartial, effective and thorough investigation into the circumstances of her son’s death and prosecuting those responsible; (b) provide the author with full reparation, including appropriate compensation; (c) prevent similar violations in the future; and (d) publish the Committee’s Views.
Subject matter:Death in police custody
Previous follow-up information:CCPR/C/116/3
Submission from the State party: 7 February 2017
The State party reports that, by a decision of the Supreme Court of Kyrgyzstan of 11 January 2017, the author was awarded 200,000 soms (approximately €2,511) as compensation for non-pecuniary damage sustained as a result of the violation of the rights found by the Committee in its Views. The State party thus requests the Committee to close the follow-up dialogue. The State party seeks a meeting with the Special Rapporteur for follow-up on Views to discuss the present case.
Submission from the author ’ s counsel: 25 July 2017
The author’s counsel stresses that, after a significant delay, the Government transferred the compensation for moral damages to a State deposit account in March 2017. However, as at 25 July 2017, the victim’s family had still not received the compensation, owing to administrative difficulties. The Government has not provided any of the additional remedies requested by the Committee. Counsel thus requests the Committee not to close the follow-up dialogue until the family actually receives the funds and to provide the author with a three‑month period, in the hope that the State party will ensure that the compensation is paid. The family will then reassess its position with regard to the other remedies, once the compensation has been received.
Committee ’ s assessment:
(a)Investigation and prosecution: C;
(b)Full reparation including appropriate compensation: B;
(c)Non-repetition: B;
(d)Publication of Views: No information.
Committee ’ s decision: Follow-up dialogue ongoing. Meet with a representative of the State party during the 122nd session.
20.Russian Federation
Communication No. 2099/2011, Polskikh
Views adopted:11 March 2016
Violation:Article 7, read alone and in conjunction with articles 2 (3) and 14 (3) (g)
Remedy:(a) Provide the author with an effective remedy, including by conducting a thorough and effective investigation into the author’s allegations of torture during his pretrial detention, providing him with detailed information on the results of the investigation and prosecuting, trying and, if confirmed, punishing those responsible for the violations committed; (b) provide the author with a retrial with all the guarantees enshrined in the Covenant; (c) provide the author with adequate compensation for the violations suffered; (d) prevent similar violations in the future; and (e) publish the Committee’s Views.
Subject matter:Author arrested on suspicion of murder and forced to confess through torture
Previous follow-up information:None
Submission from the author: 13 December 2016
The author submits that the State party has failed to adopt implementation measures. He applied to the Supreme Court of Russia to reopen the criminal proceedings in his criminal case. On 17 October 2016, the Supreme Court rejected the request, arguing that the Committee’s finding of a violation of article 14 of the Covenant did not constitute a ground for reopening. He then requested the Office of the Prosecutor General to initiate proceedings for reopening his case, based on the Committee’s Views. On 11 November 2016, his request was rejected on the ground that the allegations concerning his ill-treatment and confession obtained under duress were duly examined by the domestic authorities, and found unsubstantiated; therefore, any implementation measures with regard to the Committee’s Views were unnecessary.
Committee ’ s assessment:
(a)Investigation and prosecution: D;
(b)Retrial: D;
(c)Compensation: D;
(d)Non-repetition: D;
(e)Publication of Views: D.
Committee ’ s decision: Follow-up dialogue ongoing.
21.Russian Federation
Communication No. 1304/2004, Khoroshenko
Views adopted:29 March 2011
Violation:Article 6, read in conjunction with article 14, articles 7, 9 (1)–(4) and 14 (1) and (3) (a), (b), (d) and (g)
Remedy:(a) Provide the author with an effective remedy, including by conducting a full and thorough investigation into the allegations of torture and ill-treatment and initiating criminal proceedings against those responsible for the treatment to which the author was subjected; (b) conducting a retrial in compliance with all guarantees under the Covenant; (c) providing the author with adequate reparation including compensation; (d) prevent similar violations occurring in the future; and (e) publish the Committee’s Views.
Subject matter:Criminal conviction and death penalty based on an unfair trial; torture; arbitrary detention
Previous follow-up information:CCPR/C/115/3
Submission from the author ’ s counsel: 12 June 2016
The author submits that the State party has failed to fully implement the recommendations adopted by the Committee.
Committee ’ s assessment:
(a)Investigation and prosecution: D;
(b)Retrial: D;
(c)Compensation: D;
(d)Non-repetition: D;
(e)Publication of Views: D.
Committee ’ s decision: Follow-up dialogue ongoing. Send a reminder to the State party.
22.Slovakia
Communication No. 2062/2011, M.K. et al.
Views adopted:23 March 2016
Violation:Article 26
Remedy:(a) Provide the authors with an effective remedy, including by providing them with adequate compensation; (b) prevent similar violations in the future; and (c) publish the Committee’s Views.
Subject matter:Dismissal of civil servants under duress
Previous follow-up information:None
Submission from the State party: 6 December 2016
The State party notes that, as the authors have not exhausted domestic remedies, it is not possible to provide them with compensation. The Constitutional Court reviewed the decisions of the District Military Prosecutor’s Office of Trenčin and the Superior Military Prosecutor, which were contested by the authors, and concluded that they had not been arbitrary, but properly substantiated and well-founded. The authors resigned from public service in an expression of their free will, and were able to use the remedies offered by national law, including filing an action for the review of the legality of their release from service. The authors had an additional opportunity to determine the invalidity of the legal act; they could have petitioned for release from service under the Code of Civil Procedure Act No. 99/1963, which was in force at the time, but they chose not to make use of that remedy. The fact that the authors lodged a criminal complaint and filed an application with the Constitutional Court did not amount to exhaustion of domestic remedies, as the purpose of those actions was to establish the criminal responsibility of the Slovak Information Service, rather than assessing the legality of their release from service. Furthermore, the quasi-judicial nature of the Committee’s Views cannot change a matter which has been decided under national law.
The Views were published, along with their translation into Slovak, on the website of the Ministry of Foreign and European Affairs. They were also distributed to all the government authorities and institutions concerned, including to Ministry of Justice, the general courts and the Slovak National Centre for Human Rights, as the national specialized anti-discrimination body. As for measures to prevent similar violations in the future, the State party draws the Committee’s attention to Act No. 365/2004 on Equal Treatment in Certain Areas and Protection against Discrimination, which prohibits discrimination in employment relationships on the grounds of political opinions, including harassment.
Committee ’ s assessment:
(a)Effective remedy, including adequate compensation: E;
(b)Non-repetition: C;
(c)Publication of Views: A.
Committee ’ s decision: Follow-up dialogue ongoing.
23.Sri Lanka
Communication No. 2087/2011, Guneththige and Guneththige
Views adopted:30 March 2015
Violation:Article 6 (1), read alone and in conjunction with article 2 (3), article 7 and article 9 (1), (2) and (4), in respect of the victim; and article 2 (3), read in conjunction with article 7, in respect of the authors
Remedy:(a) Provide the authors with an effective remedy, including a prompt, thorough and independent investigation into the facts; (b) ensure that the perpetrators are brought to justice; (c) ensure reparation, including the payment of adequate compensation and a public apology to the family; (d) prevent similar violations in the future; and (e) publish the Committee’s Views.
Subject matter:Death in custody allegedly resulting from torture
Previous follow-up information:None
Submission from the authors ’ counsel: 6 February 2017
The authors’ counsel stresses that more than a year since the Views were adopted, the State party has failed to provide the authors with relevant information or take steps to implement the Views. The authors and their legal representatives have received no correspondence from and had no contact with the State party in relation to the steps it plans to take in relation to this case. Over a year after the Committee adopted its Views and more than 13 years after the incidents that led to Mr. Hemachandra’s death in the custody of the State party, no effective investigation has been conducted and the violation of the authors’ rights remains ongoing. A new, thorough and independent investigation must be conducted in order to remedy the failures of the previous investigation.
Regarding compensation, the Government should contact the authors through their counsel and obtain an estimate from them regarding the pecuniary and non-pecuniary damages they have incurred. Calculation of the loss of earnings should take into consideration the fact that Mr. Hemachandra was 34 years old, a healthy, literate man with no criminal record, who was a daily paid labourer. The compensation must also consider the lottery winnings which he had just received and the additional opportunities that they would have given him. Compensation must also include the expenses incurred seeking justice and an investigation. It must also recognize the pain, suffering and continued anguish and psychological pressure endured by the victim’s family. The State party should also issue a public apology containing an unequivocal acknowledgement of the numerous violations of the Covenant in the present case.
The authors’ counsel adds that in 2016, the Special Rapporteur on the independence of judges and lawyers and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment conducted a joint mission to Sri Lanka. The Special Rapporteur on torture noted that “cases of torture, old and new, continue to be surrounded by total impunity”. In November 2016, the Committee against Torture also expressed serious concerns regarding ongoing violations, including alleged “torture during police detention” and “inadequate investigations into allegations of torture and ill-treatment”.
The State party has not provided information on the translation, publication and dissemination of the Views. The authors’ counsel requests the Committee to assess the State party’s non-implementation with a D grade.
Committee ’ s assessment:
(a)Prompt, thorough and independent investigation into the facts: D;
(b)Ensure that the perpetrators are brought to justice: D;
(c)Ensure reparation, including payment of adequate compensation and a public apology to the family: D;
(d)Non-repetition: D;
(e)Publication of Views: D.
Committee ’ s decision: Follow-up dialogue ongoing.