Views adopted on

26 July 2001

Issues and violations found

Removal from Australia of Indonesian parents of Australia-born child - Articles 17; 23, paragraph 1; and 24, paragraph 1.

Remedy recommended

To refrain from removing the authors from Australia before they have had an opportunity to have their applications for parent visas examined, with due consideration given to the protection required by their child’s status as a minor.

Due date for State party response

12 November 2001

Date of reply

28 July 2006

State party response

The State party contests that it has violated any of the articles of the Covenant with respect to this case and relies on the individual opinions therein. It reiterates its arguments made on the merits. On the violation of article 17, it does not accept that it should refrain from enforcing its migration laws in cases where unlawful non-citizens are said to have established a family life. It refers to other Views of the Committee in which it failed to find violations of article 17 in removal cases where the authors had existing families in the removing State. It cites jurisprudence of the ECHR, which has found inter alia that article 8 (equivalent to article 17) does not recognize a right to choose the most suitable place to develop family life and may not choose the place of residence for their family simply by unlawfully remaining in the country in which it wishes to raise its family.

As to the violation of article 23, the State party submits that this provision does not regulate the details of how the family is specifically to be protected. This provision must be read against the background of the acknowledged right of Australia, under international law, to control the entry, residence and expulsion of aliens. If Mr. Winata and Ms. Li are required to leave Australia, the Government will not prevent their son from leaving with them or travelling to Indonesia to visit them.

Although Barry Winata is no longer a minor, having reached his 18th birthday on 2 June 2006, the State party submits that before he turned 18 he was afforded the same measures of protection as other children in Australia. There is nothing to suggest that he would not eventually adjust to the changes involved in any move to Indonesia. The State party informs the Committee that Mr. Winata and Ms. Li are currently living unlawfully in the State party. They are the subject of an outstanding request under article 417 of the Migration Act 1958 for the Minister of Immigration to use her discretionary power to allow them to remain in Australia. This request will not however be processed until they are located. In the meantime, there are no plans to remove them from Australia and the State party will inform the Committee if this situation changes.

Case

Coleman, 1157/2003

Views adopted on

17 July 2006

Issues and violations found

Freedom of expression - Article 19, paragraph 2.

Remedy recommended

An effective remedy, including quashing of his conviction, restitution of any fine paid by the author pursuant to his conviction, as well as restitution of court expenses paid by him, and compensation for the detention suffered as a result of the violation of his Covenant right.

Due date for State party response

2 November 2006

Date of reply

5 February 2007

State party response

The State party does not accept the Committee’s view that the reaction to the author’s conduct amounted to a breach of article 19 (2) of the Covenant. It reiterates its submission that section 8 (2) (e) of Townsville City Council Local Law No. 39 (“the Council By-Law”) is a restriction on freedom of expression which is provided by law and necessary for the protection of public order and therefore permitted by article 19 (3) (b) of the Covenant. It agrees with the statement contained in the concurring individual opinions of Committee members Mr. Nisuke Ando, Mr. Michael O’Flaherty and Mr. Walter Kälin that it is wholly consistent with the Covenant to have in place a permit system to strike appropriate balances between freedom of expression and countervailing interests.

Such a permit system is designed to balance the rights of individuals to exercise their freedom of expression and the legitimate countervailing interests of the community generally, and in particular other users of the pedestrian mall, including the public in having a shopping environment which is free from undue noise or interference, the traders and shop owners in ensuring that potential customers have access to their shops and a pleasant environment in the mall is maintained, other individuals or groups who may wish to legitimately use the public space for other activities; or other individuals who may also wish to exercise their freedom of expression.

The State party acknowledges that the mere existence of some permit systems which are of extremely broad application may amount to an unacceptable restriction on freedom of expression. By contrast, the Council By-Law only requires a permit in a relatively small public area and leaves other areas of the city available for public speeches. The Council By-Law also allows a political speech such as the one given by the author to be given within the pedestrian mall without a permit, provided the speech is given from a booth set up for political purposes. It refers to the Committee’s jurisprudence for the preposition that the right to freedom of expression does not guarantee an unfettered right to use a particular premises or area. The critical issue is whether the application of the permit system by the authorities to the particular circumstances of the author’s case was permissible under article 19 (3). The author declined to seek a permit and therefore did not afford the authorities the opportunity to grant or deny a permit. In fact, in proceedings in the District Court of Queensland, where the District Court dismissed an appeal by the author against his conviction against the Council By-Law, as well as in correspondence with various authorities concerning the conviction, the author maintained that he did not or should not be required to obtain a permit. The author had previously engaged in activities in the mall as part of his “free speech” campaign, which were seen by the Council (and allegedly by members of the general public) as disruptive and detracting from the enjoyment of the mall

by the general public, particularly during the mall’s busiest days, such as days on which the “Cotters Market” were held. The Council had, as a result of Mr. Coleman’s campaign, agreed to introduce a designated podium to allow persons to give addresses.

The address giving rise to the author’s complaint was given on 20 December 1998, a day when the “Cotters Market” was taking place at the pedestrian mall. The Council has indicated that “Mr. Coleman would be likely to receive a permit if he applied for one for a day other than a Cotters Market day, and that Council would be likely to arrange for an alternative venue to the Flinders Mall if Mr. Coleman remained committed to making the address on a Cotters Market day”.

The State party also notes that the detention of the author which eventually resulted from the offence was not merely a result of the author giving a public address without a permit, but was a result of the author’s refusal to pay the fine imposed for this offence by the Queensland Magistrate’s Court. In the author’s conviction in the Queensland Magistrate’s Court, the prosecution submitted that a fine should be imposed due to the contempt with which the author treated the Magistrate’s Court proceedings. Nevertheless the Magistrate canvassed a number of alternative sentencing options permitted under Queensland law including probation orders or community service orders. These alternative options were refused by the author, apparently based on his belief that he should be entitled to give public addresses in the mall without requiring a permit. The author had also refused offers from other people to pay the fine on his behalf. His failure to pay resulted in his arrest, during which he also resisted arrest and was charged with obstructing a police officer. The decision to imprison him appears to be influenced by his repeated history of breaching the Council By-Law both before and after the occasion in question, and his persistent refusal to accept the legitimacy of any sanctions for his disregard of the Council By-Law.

The State party submits that consideration should be given to the overall circumstances of the case. Based on these circumstances the Australian Government believes that the treatment of the author was not disproportionate and does not accept the view that he is entitled to any remedy.

Committee’s Decision

The Committee regrets the State party’s refusal to accept the Committee’s Views and considers the dialogue ongoing.

Case

Brough, 1184/2003

Views adopted on

17 March 2006

Issues and violations found

Detention of a juvenile aborigine - Articles 10 and 24, paragraph 1.

Remedy recommended

Effective remedy, including adequate compensation.

Due date for State party response

6 July 2006

Date of reply

15 February 2007

State party response

The State party maintains its view that the communication is inadmissible and does not accept the Committee’s view that it violated any of the author’s rights. It submits that the Committee did not give due weight to the fact that the author was involved in a serious incident at the Kariong Juvenile Detention Centre, which indicated significant risk implications for the safety of the author himself and his fellow inmates during his time at the Parklea Correctional Centre. The Committee failed to note that the author was not transferred directly from Kariong Juvenile Detention Centre to Parklea Correctional Centre. As submitted in its response to the Committee, he spent 10 days at the Metropolitan Remand and Reception Centre (MRRC) before he was transferred to Parklea Correctional Centre. He was received by this Centre as a result of behaviour in the juvenile system that could not be safely managed in that environment. During these 10 days he was assessed and staff prepared a management plan which identified his risks and needs and ways in which they could be addressed. His experiences at Parklea cannot be considered in isolation from the behaviour that preceded his placement there. His self-harming behaviour was exhibited before this introduction into this facility and should be understood as a manifestation of his complex and challenging personality, rather than an outcome of his treatment. His behaviour while in custody represented the continuation of a long-term pattern, which began in 1994 at the age of 12 and which the staff at Parklea were attempting to manage. The Committee did not advance that the author had seen a psychologist on several occasions while in his safe cell. Further details of his treatment could not be provided, as the author refused to consent to the release of medical records.

The State party sets out a number of changes introduced since 1999 designed to enhance the management of offenders with complex needs. Risk intervention protocols have been revised to ensure a greater emphasis on interaction with those inmates who have been identified as being at risk of self-harm or suicide. This includes a Reception Assessment for new inmates to identify “at risk” inmates and necessary arrangements for their safety. A Mental Health Screening Unit was opened in early 2006 at the main male adult reception gaol at Silverwater. This unit forms part of the second tier integrated system that allows for the identification of and intervention for persons with a mental illness entering a correctional facility. Another screening unit for women is nearing completion at the Maulawa Correctional Centre.

There have been improvements at the Parklea Correctional Centre where inmates have access to specialised mental health staff who work closely with the Department of Corrective Services staff at MRRC at the Silverwater Correctional Centre to ensure persons with a mental illness are managed appropriately. There have also been improvements in the range of psychotropic medications available to treat mentally-ill patients.

The Department of Corrective Services now has responsibility for the management of Kariong Juvenile Correctional Centre, so that the management of juvenile inmates in this centre is now based on the same system of case management as within adult correctional centres. This means that it is less likely to be necessary to transfer an  offender under the age of 18 to an adult prison for management.

The New South Wales Government has developed a plan to address the needs of Aboriginal people, which includes initiatives relating to justice, education and health. This initiative will implement programs focussing on early intervention, diversion and breaking the cycle family violence to reduce the over-representation of Aboriginal people in the criminal justice system.

Author’s response

On 30 April 2007, the author responded to the State party’s submission. He regrets the State party’s response noting that it failed to address the substance of the complaint made by him. It focused on the programmes undertaken by him since 2005 but not on the substantive issues raised in the communication. It failed also to address his transfer to adult correctional facilities and his treatment whilst at an adult correctional facility in breach of articles 10 and 24.

(This information was added after the consideration of the report for the purposes of inclusion in the annual report.)

Case

Shafiq, 1324/2004

Views adopted on

31 October 2006

Issues and violations found

Mandatory immigration detention and no right to review - Article 9, paragraphs 1 and 4.

Remedy recommended

An effective remedy, including release and appropriate compensation.

Due date for State party response

6 February 2007

Date of reply

25 May 2007

State party response

The State party states that on 21 March 2007, the Minister for Immigration and Citizenship granted the author a Removal Pending Bridging Visa (RPBV) and he was released from detention. The RPBV was introduced by the Australian Government in May 2005. It provides for the release from detention, pending removal from Australia, of persons in immigration detention whose removal is not reasonably practicable at the time. A RPBV may be granted using the non-delegable power of the Minister for Immigration to grant a visa to a person in immigration detention if the Minister thinks it is in the public interest to do so. This power is provided for in section 195A of the Migration Act 1958 (Migration Act).

As a RPBV holder, the author is entitled to a range of social support benefits: work rights and job matching through Centrelink; access to certain Centrelink benefits, such as Special Benefit and Rent Assistance; access to Medicare benefits; access to the Early Health Assessment and Intervention services; eligibility for torture and trauma counseling. Since the grant of the RPBV, Mr. Shafiq is no longer in any form of immigration detention. He remains voluntarily in the suburb of Glenside in Adelaide and attends the Royal Adelaide Hospital Psychiatric Campus in that suburb where he is being treated for a mental illness.

The State party contests that it has violated article 9 (4), as in its view the obligation on State parties is to provide for review of the lawfulness of detention. There can be no doubt that the term “lawfulness” refers to the Australian domestic legal system. There is nothing apparent in the terms of the Covenant that “lawful” was intended to mean “lawful at international law” or “not arbitrary”. The author had the opportunity, as a person in immigration detention in Australia, to take proceedings before the High Court of Australia to determine the legality of the decision to detain him under the

Migration Act. He could have sought to invoke the original jurisdiction of the High Court under section 75 of the Australian Constitution to obtain a writ of mandamus or other appropriate remedy to enable him to be released from detention. He could have also sought this remedy in the Federal Magistrates Court pursuant to section 476 of the Migration Act. Finally, he could have also sought the remedy of habeas corpus in the High Court or the Federal Court.

In light of the above, the State party does not accept that the author is entitled to be paid compensation pursuant to article 2 (3) (a).

Committee’s Decision

While welcoming the author’s release from detention, the Committee regrets the State party’s refusal to accept the Committee’s Views, notes that no compensation has been provided, and considers the dialogue ongoing.

State party

BELARUS

Case

Bondarenko and Lyashkevich, 886/1999 and 887/1999

Views adopted on

3 April 2003

Issues and violations found

Secrecy of date of execution of family member and place of burial ‑ article 7.

Remedy recommended

An effective remedy, including information on the location where the authors are buried, and compensation for the anguish suffered by the family.

Due date for State party response

23 July 2003

Date of reply

1 November 2006

State party response

It refers to the notion of torture as defined in article 1 of the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment, and notes that this notion does not include pain or anguish that result from lawful sanctions, that are inseparable from the sanctions or have been caused by chance as a result of their application. Neither in the Convention not in any other international legal act it is not defined what has to be understood under the terms of other cruel, inhumane, or degrading or humiliating the human dignity treatment or punishment.

The State party states that torture or other cruel acts are criminalised in its Criminal Code (arts. 128 (2) and (3), and art. 394). It states that the death penalty is applied in Belarus only in relation to a limited number of particularly cruel crimes, accompanied by premeditated deprivation of life under aggravating circumstances and may not be imposed on individuals that have not attained the age of 18, and against women and man that are over 65 at the moment of commission of the crime. A death sentence may be substituted by a life imprisonment.

Pursuant to article 175 of the Criminal Execution Code, CEC, a death sentence that has become executory can only be carried out after the receipt of official confirmation that all supervisory appeals have been rejected and that the individual was not granted a pardon. Death sentences are carried out by firing squad in private. The execution of several individuals is carried out separately, in the absence of the other convicted. All executions are carried out in the presence of a prosecutor, a representative of the penitentiary institution where the execution takes place, and a medical doctor. On exceptional basis, a prosecutor may authorize the presence of additional persons.

Pursuant to article 175 (5), of the CEC, the penitentiary administration of the institution where the execution took place is obliged to inform the court that has pronounced the sentence that the execution was carried out. The court then informs the relatives of the executed individual. The body of the executed is not given to the family, and no information about the burial place is provided. The State party concludes that the death penalty in Belarus is provided by law and constitutes a lawful punishment applied to individuals that have committed specific particularly serious crimes. The refusal to inform the relatives of a sentenced to death of the date of execution and burial place is also provided by law (the CEC).

In light of the previous, the State party affirms that in the present cases, the moral anguish and stress caused to the mothers of the sentenced to death cannot be seen as the consequence of acts, that had the objective to threaten or punish the families of the convicted, but rather as anguish, that occur as a result of the application of the State party’s official organs of a lawful sanction and are not separable from the this sanction, as provided in article 1 of the Convention against Torture.

In connection with the authorities’ refusal to deliver the body of those executed for burial, and the refusal to divulge the burial place, the State party adds that these measures are provided by law not with the aim of punishing or threatening the relatives of those executed, leaving them in a state of uncertainty and moral anguish, but because, as it was shown by the practice of other States that apply the death penalty, burial places of criminals sentenced to death constitute “pilgrimage” sites for individuals of mental instability.

In relation to the case of Mr. Lyashkevich, the State party adds that the main allegations of the author relate to her son’s alleged conviction on the grounds of indirect evidence, in violation of article 6, of the Covenant. In this relation, the State party observes that the Committee’s finding of a violation of Mrs. Staselovich’s (the mother of the victim and author of the communication) rights under article 7, of the Covenant, because she was not informed of the date of execution of her son and the authorities’ refusal to reveal his burial place, differs from the object of the communication. In addition, neither the author nor her counsel have ever mentioned that the lack of information about the date of execution or the burial site location has caused any psychological harm to the author; they did not appeal to the State party’s competent authorities in this relation.

The State party also notes that the author has failed to provide comments on the State party’s merits observations, in spite of the fact that several reminders were sent to her in this regard. In light of the above information, the State party concludes that it cannot agree with the Committee’s conclusions in the two communications, that article 7, of the Covenant was violated.

Finally, the State party informs the Committee that its Parliament has asked the Constitutional Court to examine the question of the compliance of the relevant Criminal Code provisions regulating the application of the death penalty, with the provisions of the Constitution and the State party’s international obligations.

Further action taken

On 30 October 2006, follow-up consultations were held with Mr. Lazarev, First Secretary of the Mission of Belarus, Mr. Shearer, Special Rapporteur on the Follow-up to individual complaints and the Secretariat.

The Rapporteur explained the follow-up procedure and his new role as Rapporteur. He highlighted to Mr. Lazarev that the State party had only responded to the Committee’s Views in three of the ten cases in which the Committee had found violations of the Covenant (Svetik, 927/2000, Malakhovsky, 1207/2003 and Bandazhewsky, 1100/2002). The response in the latter case, in which it was stated that the author was given early release was sent to the author for comment.

On the State party’s response to Malakhovsky, in which the State party challenged the Committee’s Views, Mr. Lazarev reiterated what he had said in an earlier meeting that this was a very famous case in Belarus and the issue of religious freedom is a very sensitive one. He stated that strict legislation on religious groups was introduced in the State party following several suicides of members of cults. Thus, the social context as well as the purely legal context should be recognized by the Committee. The Rapporteur noted that it was unlikely that the State party would change its view of this decision and informed Mr. Lazarev that in such circumstances where a State party provides cogent arguments against the Committee’s findings the latter while regretting its position and considering the dialogue ongoing will pursue the matter less vigorously.

The necessity to respond on the other seven cases in which the Committee found violations was impressed upon Mr. Lazarev and in particular the need to provide remedies to the authors of these violations. Mr. Lazarev expressed his appreciation of the meeting with the Rapporteur and ensured him that he would relay the Rapporteur’s concerns to his capital.

Committee’s Decision

The Committee regrets the State party’s refusal to accept the Committee’s Views and considers the dialogue ongoing.

Case

Bandajevsky, 1100/2002

Views adopted on

28 March 2006

Issues and violations found

Arbitrary arrest, unlawful detention, inhuman conditions of detention, court not established by law, no right to review ‑ articles 9, paragraphs 3, and 4; 10, paragraph 1; 14, paragraphs 1 and 5.

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Mr. Bandajevsky with an effective remedy, including appropriate compensation. The State party is also under an obligation to prevent similar violations in the future.

Due date for State party response

6 July 2006

Date of reply

On 29 August 2005, the State party replied to the Working Group on Arbitrary Detention. This information was not provided to the Committee until 24 July 2006.

State party response

It states that, in accordance with the ruling of 5 August 2005 by the court of Diatlov region, Grodno oblast, the author was released early from serving the remainder of his sentence delivered on 18 June 2001.

Author’s response

On 22 August 2006, the author confirms that he was released, but informs the Committee that he has not received any compensation.

Case

Svetik, 927/2000

Views adopted on

8 July 2004

Issues and violations found

The limitation of the liberty of expression did not legitimately serve one of the reasons enumerated in article 19, paragraph 3. Therefore, the author’s rights under article 19, paragraph 2 of the Covenant had been violated.

Remedy recommended

Effective remedy, including compensation amounting to a sum not less than the present value of the fine and any legal costs paid by the author.

Due date for State party response

18 November 2004

Date of reply

12 July 2005

State party response

As presented in its interim report from the eighty-fourth session, the State party had responded on 12 July 2005. It confirmed that the Supreme Court had studied the Committee’s Views, but had not found any grounds to reopen the case. The author had been convicted not for the expression of his political opinions, but for his public call to boycott the local elections. Accordingly, the State party concluded that it cannot agree with the Committee’s findings that the author is a victim of violation of article 19, paragraph 2, of the Covenant.

Author’s response

On 19 February 2006, the author confirmed the outcome of the Supreme Court consideration of this case. His application did not reveal any new grounds for the annulment of previous court decisions, “notwithstanding the change of law and the examination of his case by the Human Rights Committee”. He states that he also appealed his case to the Constitutional Court (exact date not provided), requesting the annulment of the Supreme Court’s judgement. By letter of 2 December 2004, the Constitutional Court informed him that it is not empowered to interfere with the work of ordinary jurisdictions. The author claims that the State party has not published the Committee’s Views.

Further action taken

See above for information on a follow-up meeting that was held in October 2006.

Committee’s Decision

The Committee regrets the State party’s refusal to accept the Committee’s Views and considers the dialogue ongoing.

Case

Viktor Korneenko, 1274/2004

Views adopted on

31 October 2006

Issues and violations found

Freedom of association - article 22, paragraph 1.

Remedy recommended

An appropriate remedy, including reestablishment of “Civil Initiatives” and compensation.

Due date for State party response

5 February 2007

Date of reply

27 February 2006

State party response

The State party notes that if the Committee had requested further clarification on certain issues (the subject of paragraphs 7.5 and 7.6 of the Views) prior to consideration of the case it could have ensured a proper examination of and a more balanced decision by the Committee.

It submits that the Gomel regional association “Civil Initiatives” was dissolved in compliance with the Belarus Constitution and law. Article 29, paragraph 2, of the Law “On Public Associations” of 4 October 1994, stipulates that an association can be dissolved by court order if it again undertakes, within a year, activities for which it had already received a written warning. Dissolution of a public association by court order follows internationally established practice of dissolving of this type of legal entities. In the course of its activities, “Civil Initiatives” repeatedly violated domestic law.

On 13 May 2002, the Department of Justice gave a written warning to the “Civil Initiatives’” about improper use of equipment, received through foreign grants. Paragraph 4, part 3, clause 5.1, part 3, of Presidential Decree No. 8 “On Certain Measures for the Improvement of the Procedure for Receipt and Use of Foreign Grants” of 12 March 2001, prohibits the use of such grants for, inter alia, the preparation of gatherings, meetings, street processions, demonstrations, pickets, strikes, the production and dissemination of propaganda materials, as well as the organization of seminars and other forms of propaganda activities among general public. Violation of the Decree’s requirements by the trade unions and other public associations, as well as receipt of foreign grants by political parties and their organizational structures may result in their dissolution through the application of relevant procedures even after a single violation. Lawfulness of the first written warning was confirmed by the Gomel Regional Court on 4 November 2002 and by the Supreme Court on 23 December 2002.

Despite the first warning, “Civil Initiatives” once again violated domestic law. From November 2001 to March 2003, Department of Justice undertook an inspection of “Civil Initiatives’” statutory activities and found out that it used foreign grants for the production of propaganda material, as well as for other forms of propaganda activities among the general public. The State party submits a list of materials that, in its opinion, contains propaganda. The arguments of “Civil Initiatives’” representatives that these materials were produced with the use of equipment, other than that received through foreign grants, are not corroborated by sufficient and reliable evidence.

Contrary to article 50 of the Belarus Civil Code, “Civil Initiatives” engaged in the establishment of unregistered district branches and a number of independent organizational structures as “resource centres” not envisaged by its own Statutes; omitted reference to its proper legal status as a public association; distorted its title in the information bulletins; violated its own Statutes and Belarus Electoral Code and did not bring its letterhead in compliance with legal requirements. The State party submits a short description of the facts illustrating each of the above violations of the law related to the procedure and requirements applicable to the legal entity’s documentation. Article 57, paragraph 2, sub-paragraph 2, of the Belarus Civil Code envisages a procedure for the dissolution of a legal entity by court order when it conducts its activities without a license; or when the activities are prohibited by law; or with repeated and serious violations of law; or systematically conducting activities that run contrary to its Statutes.

In view of the abovementioned violations, the Department of Justice filed a suit in the Gomel Regional Court, requesting the dissolution of “Civil Initiatives”. The latter was dissolved by court order on 17 June 2003. This decision was upheld by the Supreme Court on 14 August 2003, which concluded that the Gomel Regional Court had thoroughly examined all the facts and pertinent evidence and correctly applied substantive and procedural law. Lawfulness and relevance of the decision on dissolution was examined by the Supreme Court on cassation and through the supervisory review procedure, as well as by the Republican Prosecutor’s Office also through the supervisory review procedure. The State party submits that there were no grounds for the review of the aforementioned judicial decisions.

Further action taken

See above for information on a follow-up meeting that was held in October 2006.

Committee’s Decision

The Committee regrets the State party’s refusal to accept the Committee’s Views and considers the dialogue ongoing.

State party

BURKINA FASO

Case

Sankara et al. 1159/2003

Views adopted on

28 March 2006

Issues and violations found

Inhuman treatment and equality before the Courts - Articles 7 and 14, paragraph 1.

Remedy recommended

The State party is required to provide Ms. Sankara and her sons an effective and enforceable remedy in the form, inter alia, of official recognition of the place where Thomas Sankara is buried, and compensation for the anguish suffered by the family. The State party is also required to prevent such violations from occurring in the future.

Due date for State party response

4 July 2006

Date of State party’s response

30 June 2006

State party response

The Committee will recall that the State party provided its response on the follow-up to this case on 30 June 2006. It stated that it is ready to officially acknowledge Mr. Sankara’s grave at Dagnoin, 29 Ouagadougou, to his family and reiterates its submission prior to the decision that he has been declared a national hero and that a monument is being erected in his honour.

It submitted that on 7 March 2006, the Tribunal of Baskuy in the commune of Ouagadougou ordered a death certificate of Mr. Sankara, deceased on 15 October 1987 (it does not mention the cause of death).

Mr. Sankara’s military pension has been liquidated for the benefit of his family.

Despite offers by the State to the Sankara family of compensation from a fund set up on 30 March 2001 by the government for victims of violence in political life, Mr. Sankara’s widow and children have never wished to receive compensation in this regard. On 29 June 2006, and pursuant to the Committees’ Views to provide compensation, the government had assessed and liquidated the amount of compensation due to Ms. Sankara and her children as 43 4450 000 CFA (around 843,326.95 US$). The family should contact the fund to ascertain the method of payment it they wish to receive it.

The State party submitted that the Views are accessible on various governmental websites, as well as distributed to the media.

Finally, it submitted that the events which are the subject matter of these Views occurred 15 years ago at a time of chronic political instability. That since that time the State party has made much progress with respect to the protection of human rights, highlighted, inter alia, in its Constitution, by the establishment of a Minister charged with the protection of human rights and a large number of NGOs.

Author’s comments

On 29 September 2006, the authors commented on the State party’s submission as follows. They dispute the adequacy of all the remedies set out in the State party’s submission. They highlight the failure by the State party to initiate inquiry proceedings to establish the circumstance of Mr. Sankara’s death. This request was reiterated by the authors on 17 May 2006 after the Committee’s Views. However, on 21 June 2006, the Procurator refused to refer the matter to the Minister of Defence to commence a judicial inquiry, arguing (as on the previous occasion) that it was “time-barred”. In the authors’ view the only effective remedy would be an impartial judicial inquiry into the cause of his death. The Committee itself in para. 12. 6 has already rejected the prescription arguments provided by the State party. The authors state that the “decision” of 7 March 2006 to unilaterally modify the falsified death certificate of Mr. Sankara of 17 January 1988 was done ex parte during proceedings which were secret and of which the authors only became aware in the State party’s response on follow-up to this case. In their view this constitutes an independent and further violation of article 14, paragraph 1 on behalf of the authors. As to the recognition of his burial place, the authors state that no records, direct witness evidence, burial record, DNA analysis, autopsy or forensic report are provided which would constitute an “official record” in relation to the burial remains of Mr. Sankara. True “official recognition” of the place where his remains are buried can only come after a judicial inquiry establishes the circumstances of his death and burial by direct witness evidence, burial record, DNA analysis, autopsy or forensic reports. As to the entitlement to a military pension, the authors state that such entitlement is irrelevant for the purposes of providing a remedy for the violations found. As to the receipt of compensation from the Compensation Fund of Political Violence, the authors submit that as the Committee itself found in considering the admissibility of this case, the pursuit of an application through the existing Compensation Fund for Victims of Political Violence doe not qualify as an effective and enforceable remedy under the Covenant given the context of the grave breaches of article 7 rights. The State party cannot now re-argue that an ex post facto indemnity available pursuant to the non-contentious Compensation Fund for Victims of Political Violence qualifies as an “effective remedy” under the Covenant. In addition, any such application would require the Sankara family to abandon their rights to have the circumstances of Mr. Sankara’s death established by judicial inquiry and waiver of all rights to seek remedies before the courts.

On 19 June 2007, the authors reiterate the inadequacy of the State party’s efforts to provide a remedy. They submit that they still do not know the author’s exact burial place, which could only be ascertained through a thorough investigation into the circumstances of his death - something which has not to date been undertaken. They submit that the sum in compensation offered is derisory considering that the violations found have been ongoing since 1987.

State party

CANADA

Case

Ominayak, 167/1984

Views adopted on

26 March 1990

Issues and violations found

Minority rights - Article 27

Remedy recommended

Historical inequities, to which the State party refers, and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of article 27 so long as they continue. The State party proposes to rectify the situation by a remedy that the Committee deems appropriate within the meaning of article 2 of the Covenant.

Due date for State party response

No record of date

Date of reply

6 September 2006 (The State party had previously responded on 25 November 1995)

State party response

The Committee will recall that in a follow-up response of 25 November in 1995, the State party stated that the remedy was to consist of a comprehensive package of benefits and programmes valued at $45 million and a 95 square mile reserve. At the time, negotiations were still ongoing as to whether the Band should receive additional compensation.

On 6 September 2006 (as was set out in the interim follow up report from the eighty-eighth session), following a request for further information on the negotiations, the State party provided substantial information on the negotiations to date. It submitted that, according to paragraph 33 of its Views (set out under remedy recommended above), the Committee stated that its proposal to rectify the situation (the 1989 settlement offer) was an appropriate remedy within the meaning of article 2 of the Covenant. It submitted that the Lubicon Lake Cree have yet to accept the remedy that it has proposed.

According to the State party, it did not appear that there had been extensive logging in the area of land claimed by the Lubicons as traditional use territory since the Views. Oil and gas exploitation have been ongoing with the lands claimed by the Lubicon for traditional use since the Views. In October 2005, two operating partners signed an agreement with the Lubicon giving them a say in oil well drilling on the land which they claim. These companies have indicated that the Lubicon will be consulted by them on future drilling plans before they apply to the Province of Alberta for further permits.

Throughout the 1990s and into the present, serious attempts have been made by the Government of Canada to reach a negotiated settlement with the Lubicon Lake Cree. In the latest round of negotiations, which ended in 2003, every aspect of the State party’s offer to the Lubicon Lake Cree was enhanced over previous offers, including the offer which was found by the Human Rights Committee to be appropriate to remedy the threat to the Lubicon Lake Cree under article 27 of the Covenant.

The Lubicon Lake Cree leadership, and its negotiators, have always insisted on a full settlement of all aspects of their claim. Even where there has been substantial agreement by all parties to the negotiations on many aspects of the Lubicon Lake Cree claim, a settlement has been beyond the reach of the parties. The negotiators for the Lubicon Lake Cree have indicated that the Lubicon Lake Cree are only willing to negotiate the self-government aspect of their claim on their terms, and consequently have been unwilling to continue to negotiate toward a settlement of those aspects of their claim which are relevant to this communication and for which there is substantial agreement, including the question of the amount and location of the land and the construction of a new community.

According to the State party, since 2003, the negotiators for the Lubicon Lake Cree have been unwilling to reopen negotiations. In 2005, they declined an offer from the State party for a partial settlement, which was made on the basis that it was without prejudice to the remaining, unresolved aspects of their claim.

The State party submitted that it is committed to a resolution of the Lubicon Lake Cree’s claim that is fair to all parties. And is committed to a resolution of those aspects of the Lubicon Lake Cree claim that would deliver the proposed remedy found appropriate by the Human Rights Committee in its Views. It is willing to resume negotiations at any time should the Lubicon Lake Cree be willing to return to the negotiating table.

Author’s response

Many petitions were received in the months of January and February 2006, from various individuals in France (relationship to authors unknown), requesting the Committee to follow-up on this case and claiming that the current situation of the Lubicon Lake Band was “intolerable”.

The State party’s submission was sent to the authors on 22 September 2006, with a deadline until 22 November 2006 for comments. On 8 April 2007, the authors provided a substantial and detailed response to the State party’s submission of 126 pages. On 5 May 2007 a summary of 36 pages was provided.

On the issue of logging, the authors submit that since the Views and following years of failure to consult, protests, broken agreements etc. there is currently a tenuous unstable “standoff” between the Lubicon and forestry companies. This standoff is continually being tested and challenged by the forestry companies and both levels of Canadian government. As to oil and gas exploitation, they submit that the process of agreement mentioned by the State party was not as straightforward as suggested by the State party but did finally culminate in a written agreement with the companies involved on 14 October 2005.

The authors confirm that there have been no negotiations since November 2003 and refer to the 1989 offer as a “take-it-or-leave-it” offer and that the Committee will have to consider whether it is an appropriate remedy. In their view, the recommendation of the Committee in its Views was advising both sides to continue to negotiate in good faith and this is consistent with what it says in its Concluding Observations of 2005. The authors contest that the subsequent offers made by the State party “enhanced” the 1989 offer and submit that in fact the 1992 “re-packaged” version of the offer from 1989, when the impact of inflation was taken account, actually amounted to less than the 1989 offer. They deny that they refused to negotiate, but submit that the government negotiators tabled positions that they themselves refused to negotiate saying that they had no mandate to negotiate them. All that is required for negotiations to continue, they say, is for the government negotiators to return with a mandate to negotiate long-standing settlement items in good faith, including financial compensation and recognition of the right of self-government as part of a settlement of Lubicon land rights. They submit that the State party has ignored a number of written offers by them to return to the table on such terms. They state that the offer of partial settlement referred to by the State party from 2005 did not include key settlement items: economic development, financial compensation or self-government. No settlement, they submit, will be possible unless the State party is prepared to negotiate all outstanding settlement issues in good faith including financial compensation and self government as part of a settlement of Lubicon Land Rights. Thus, the authors submit that the Committee must clarify its position on the 1989 offer as set out in its Views - upon which Canada’s position relies.

Committee’s Concluding Observations

Pursuant to the Committee’s consideration of the State party’s report, during the eighty-fifth session, the Committee adopted the following Concluding Observation with respect to this case:

“The Committee is concerned that land claim negotiations between the Government of Canada and the Lubicon Lake Band are currently at an impasse. It is also concerned about information that the land of the Band continues to be compromised by logging and large-scale oil and gas extraction, and regrets that the State party has not provided information on this specific issue (arts. 1 and 27).

The Committee considered that “The State party should make every effort to resume negotiations with the Lubicon Lake Band, with a view to finding a solution which respects the rights of the Band under the Covenant, as already found by the Committee. It should consult with the Band before granting licences for economic exploitation of the disputed land, and ensure that in no case such exploitation jeopardizes the rights recognized under the Covenant.” (CCPR/C/CAN/CO75)

[The Committee members may wish to note the following concluding observation made by the CESCR on this issue during its 1-19 May 2006 session:

“38.The Committee strongly recommends that the State party resume negotiations with the Lubicon Lake Band, with a view to finding a solution to the claims of the Band that ensures the enjoyment of their rights under the Covenant. The Committee also strongly recommends that the State party conduct effective consultation with the Band prior to the grant of licences for economic purposes in the disputed land, and to ensure that such activities do not jeopardize the rights recognized under the Covenant.”]

Committee’s Decision

The Committee notes the complexity of the issues raised by both parties, observes that they are still not in agreement on an appropriate remedy and urges them to continue their efforts to find a solution to the authors’ claims in conformity with the Covenant.

State party

COLOMBIA

Case

Becerra Barney, 1298/2004

Views adopted on

11 July 2006

Issues and violations found

Right to a fair trial, faceless judges - Article 14.

Remedy recommended

An effective and appropriate remedy.

Due date for State party response

26 October 2006

Date of reply

31 January 2007

State party response

On 31 January 2007, the State Party submitted the following information. It recalls that Law 288 of 1996 established instruments to ensure compensation for victims of human rights violations. This law was adopted principally in order to expedite reparations when an international organ adopts a decision in individual communications presented to it against the State of Colombia. Article 2 of this law established that cases where decisions have been adopted by international human rights organs will be submitted to the Committee of Ministers which is constituted by the Ministers of the Interior, Justice and Law, External Affairs, and National Defence. This Committee may adopt a favourable recommendation in the event that certain elements of fact and law, and the Constitution, are present. This Committee may also adopt a negative recommendation when it considers that these elements are not present. Such was the finding in this particular case. The Committee’s decision is based on constitutional principles and concluded that the State of Colombia afforded the author all of his fundamental constitutional rights, in particular that of due process that were at the time possible. With regard to the Law of Public Order or Regional Justice (Ley de Orden Público o Justicia Regional) the Committee of Ministers took into account that this law was, at the time, considered constitutional by the Constitutional Court of Colombia.

The State party submits that the violation that is attributed to the State of Colombia of the author’s right to a public hearing is not in itself a breach, as the non-public character of the procedure was at the time indispensable to preserve the interests of justice. Such a situation is provided for in other human rights treaties to which Colombia is party, for example article 8 paragraph 5 of the American Convention on Human Rights. The State party recalls that at the time of the procedure against Mr. Becerra Barney under the Law of Regional Justice, the country was confronting a grave public security situation, in particular because of the multiple attacks against officials of the judiciary perpetrated by the drug cartels. The State party also recalls that once the situation had subsided, this Law, which had been considered constitutional by the country’s Constitutional Court, was repealed as had been recommended by different international human rights organs.

Author’s comments

On 2 May 2007, the author responded to the State party’s submission. He notes that not only his right to a public hearing was violated but also his right to be present during the trial held against him. He further notes that article 8.5 of the American Convention on Human Rights, which provides for the “interests of justice”, as an exception to the public hearing rule, does not allow the sentencing of a person in absentia. He observes that the State party misinterprets Law 288 of 1996, which was specifically adopted in order to enforce the Committee’s Views. Article 2 states that the decision of the Committee of Ministers shall be favorable when a decision has been previously adopted by the Human Rights Committee and the Inter-American Commission. He stresses the State party’s obligation to provide him with an effective remedy and adequate compensation.

Committee’s Decision

The Committee regrets the State party’s refusal to accept the Committee’s Views and considers the dialogue ongoing.

State party

THE CZECH REPUBLIC

Case

The following 11 cases have been decided against the Czech Republic: Simunek et al (516/1992) (property restitution), Adam (586/1994) (property restitution), Blazek (857/1999) (property restitution), Marik (945/2000) (property restitution), Kříž (1054/2000) (property restitution), Des Fours Walderode (747/1997) (property restitution), Brok (774/1997) (property restitution), Fabryova (765/1997) (property restitution), Pezoldova (757/1997) (denial of access to documents for restitution claim), Czernin (823/1998) (maintenance of nationality), L.P. (946/2000) (right of access to child).

State party response

On 26 March 2007, the State party provided the following written responses with respect to each case:

With respect to the following cases: Simunek et al - 516/1992;Adam - 586/1994; Blazek - 857/1999; Marik - 945/2000; and Kříž  ‑ 1054/2000; the State party informs the Committee that the modification of legislation removing the nationality condition would not be supported by Parliament as such an amendment would have to be retrospective, thereby opening the entire restitution process.

With respect to Des Fours Walderode (747/1997):On 14 March 2002, the Constitutional Court considered that the nationality condition did not apply retrospectively to the author. Subsequently, the author made numerous claims (around 21) relating to different property and against different people before the Tribunals of Liberec and Semily. In January 2007, 4 of these procedures were closed following withdrawal, 2 were rejected, as the author did not comply with other conditions of the restitution law and 11 remain pending. The State party admits that the entire procedure has and continues to be long but explains that the long delay results from many factors including the complexity of the restitution law, the number of properties involved, insufficient information provided etc. The State party also submits that the author’s wife has a case pending before the ECHR on the issue of undue delay in the consideration of the restitution claims. A Decision against the State party would be likely to result in the provision of compensation.

Brok (774/1997): Compensation of 2,236,870 CZK (around 79,000 euros) was made to the family through a Government programme implemented for Holocaust victims. The author’s family has accepted the compensation offered.

Fabryova (765/1997): Compensation of 1,542,839 CZK (around 54,500 euros) was offered to the family through a Government programme implemented for Holocaust victims. The family of Ms. Fabryova has not been satisfied with the compensation offered. A new claim for restitution was filed and an appeal of a negative decision remains pending.

Pezoldova (757/1997) (denial of access to documents to prove restitution claim): The State party refers to its response of July 2005, in which it informed the Committee that an ex gratia payment would be made to the author.

On 1 February 2006, the author responded on the State party’s submission, submitting inter alia on the issue of the ex gratia payment that no such offer had been made.

Czernin (823/1998): The State party submits that the issue of the author’s request to maintain his Czech nationality is ongoing and that an appeal lodged before the Supreme Administrative Court is pending. It admits that the affair has been going on since 1995 and has thus been unduly delayed through no fault of the author. Payment of an ex gratia compensation to the author is being considered, primarily because of the issue of delay in the adjudication of the author’s request. However, it is very complex in fact and law.

L.P. (946/2000): Case involving denial of contact between the author and his son. The State party admits that the domestic authorities did not regulate the problem efficiently. However, the courts above all the courts must take into account the best interests of the minor and that it was precisely the author’s obstructions which prevented the District Court from making a judgment on the merits relating to the custody of the minor. Since the Views, the State party submits that the author’s wife was charged several times and convicted of having frustrated contact between her son and his father. On 11 September 2003, she was fined 30 800 CZK for failing to abide by the judgment of 2 October 1995 (allowing access to the father as a provisional measure). As to the civil issue and the delays in 2001 and 2002, the State party submits that such delays were caused by objective factors. However, since the Committee’s Views the president of the District Court must present a report each month to the ministry on the conduct of the affair. Following several court hearings since the Views on the issue of access to the father, the Court of Appeal confirmed on 28 July 2006 the district courts decision to cancel this 2 October 1995 judgment on the basis of an expert psychological report. From 2003 to 2005 the matter was examined by a mediator who concluded that the protection authority could no longer guarantee contact between the author and his son as the minors own opinion could no longer be ignored, given his age, (born 1989) and that he continually expresses his wish not to have any contact with his father, refusing to go with him.

The author has filed a case before the European Court which was considered partially admissible on 10 January 2006, relating to the delay in the guardianship proceedings and the right to respect for family life since 25 July 2002, the date of the Committee’s Views. If successful the ECHR can suggest a remedy.

Further action taken

The Committee will recall that on 18 October 2005, the special rapporteur on follow-up to communications met with the AmbassadorandanotherrepresentativefromthePermanentMission, regarding follow up to the Committee’s Views on Czech cases.

The Ambassador informed Mr. Ando that some governmental offices were willing to implement at least some of the recommendations regarding the property cases on an ad hoc basis. The Mission had requested the governmental commission in charge of dealing with individual cases submitted to international bodies, to provide the Committee with written information regarding developments in this respect. The Ambassador also indicated that, regarding some of the cases, no further legal remedies exist. In order for the alleged victims to be able to file new claims the restitution legislation should be modified in Parliament. The information provided on each case during this meeting is set out in the A/61/40.

State party

EQUATORIAL GUINEA

Case

Primo Essono (414/1990) (torture, poor conditions of detention, arbitrary arrest and detention and freedom of opinion), Olό Bahamonde, Ndong et al., (468/199) (arbitrary arrest and detention, freedom of opinion and unfair trial) and Mic Abogo (1152 and 1190/2003) (torture, unfair trial and arbitrary arrest and detention)

Further action taken

The Committee will recall that the State party has not provided responses to any of the findings of violations by the Committee.

On 30 October 2006, a joint meeting was held between Mr. E. Mbana, the Chargé d’affaires of the Permanent Mission of Equatorial Guinea, the Special Rapporteur on Follow-up to Individual Complaints and the Special Rapporteur on Follow-up to Concluding Observations, and the Secretariat, on 30 October 2006, at Palais Wilson.

The following is a note on information provided with respect to follow-up to individual complaints only. The State party was asked for information on follow-up to the following complaints: Primo Essono, 414/1990, Olό Bahamonde, Ndong et al., 468/1991 and Mic Abogo, 1152 and 1190/2003. The Rapporteur referred to the information provided by the State party’s representative at the last follow-up meeting: that the author of case No. 414/1990 moved to Spain in the 1990s and has since died; and that the author of case No. 468/1991 left the country but carries out official functions for the government. He also referred to the information provided through newspaper reports that one of the authors of case No. 1152/1190/2003, Mr. Plácido Micó Abogo, was released on 2 August 2003. He requested this information in writing from the Government for the purposes of considering closing these cases.

On a general note, the State party’s representative stated that there had been a change of government about two months ago and that new people were now looking after human rights. There is a new Human Rights Vice-Minister, and the current Prime Minister was in fact the previous Human Rights Minister. He stated that the Mission is relatively new in Geneva (since January) and that they are still mainly looking after logistical issues. The Rapporteur requested a point of contact in the Human Rights Office in Malabo for the purposes of establishing an efficient flow of information between the Secretariat and the State party. Thus, all information with respect to individual complaints could be sent directly to the appropriate Ministry, as well as through the Permanent Mission in Geneva. The State party’s representative stated that he would do so.

As to individual complaints, the State party’s representative stated that, to his knowledge, Mr. Ndong was now living in Spain and that he had a website which he used to criticize the government. He stated that Mr. Plácido Micó Abogo is now a Member of Parliament, and believes that the other authors of case No. 1152/1190/2003 were among 43 prisoners of conscience released by the President on 5 June 2006. He stated that he would forward the list of names as confirmation. The Rapporteur requested the State party to confirm all of the follow-up information associated with these cases to be submitted in writing, even by an email to the Secretariat for greater ease and expediency.

On 30 October 2006, following the meeting the representative of the State party faxed the list of names of prisoners who had been released and among which he had thought included the abovementioned authors. None of the authors were included among the names.

State party

GUYANA

Case

Yassen and Thomas, 676/1996

Views adopted on

30 March 1998

Issues and violations found

Death penalty case - Unfair trial, prolonged pretrial detention, poor conditions of detention, ill-treatment, right to life - articles 6, 10, paragraph 1, and 14, paragraph 3 (b), (c) and (e), in respect of both authors; and of article 14, paragraph 3 (b) and (d), in respect of Mr. Abdool Yasseen.

Remedy recommended

An effective remedy ... this should entail their release.

Due date for State party response

3 September 1998

Date of reply

None

State party response

None

Author’s response

On 30 May 2007, the authors’ lawyers (Interights) called the OHCHR to inform it that they were again pursuing the follow-up in this case, in particular follow-up to Mr. Thomas’ case as he remains under sentence of death and has been on death row since 1988. Mr. Yassen apparently died of natural causes in prison in 2002.

Further action taken

The Committee will recall that during the eighty-third session (29 March 2005) the Rapporteur met with the Deputy Permanent Representative of Guyana to the United Nations. The Rapporteur explained his mandate and provided the representative with copies of the Views adopted by the Committee in the following communications: 676/1996 (Yasseem and Thomas), 728/1996 (Sahadeo), 838/1998 (Hendriks), 811/1998 (Mulai) and 867/1999 (Smartt). The Views were also sent to the Permanent Mission of Guyana by e-mail to facilitate their transmittal to the capital. The Rapporteur expressed concern about the lack of information received from the State party regarding the implementation of the Committee’s recommendations on these cases. The representative gave the Rapporteur assurances that he would inform his authorities in the capital about the Rapporteur’s concerns.

The Committee may wish to consider organizing a further meeting with the State party, to discuss all of the cases of violations found against it of which there are nine and to which the State party has continually failed to respond.

State party

LIBYAN ARAB JAMAHIRIYA

Case

El Ghar, 1107/2002

Views adopted on

29 March 2004

Issues and violations found

Refusal by the State party to issue the author with a passport - Article 12, paragraph 2.

Remedy recommended

The State party is under an obligation to ensure that the author has an effective remedy, including compensation. The Committee urges the State party to issue the author with a passport without further delay.

Due date for State party response

4 February 2005

Date of reply

23 August 2006

State party response

Following a request from the Secretariat on behalf of the Special Rapporteur on the issue of providing compensation to the author, the State party provided the following information. It contests the Committee’s findings and reiterates its argument provided prior to consideration of the case by the Committee, that the author was never refused a passport and that all she had to do was to fill in a form at the consulate in Casablanca. Although she did go to the consulate on several occasions, the State party claims that she never filled in the forms and thus could not receive her passport. In its view, her claim appears to relate essentially to a request for compensation which she is not at liberty to receive not having been refused a passport in the first place.

Author’s response

The Committee will recall, as set out in the 84th report, that by letter dated 23 June 2005, the author referred to the State party’s failure to implement the Committee’s Views.

On 21 February 2006, she informed the Committee that after many meetings with the Libyan consulate in Morocco, in which she was accused, inter alia, of having committed treason against the State party by bringing her case before the Committee, it still does not appear likely that she will receive her passport.

The author informed the Secretariat in October 2005 that the Libyan consulate in Casablanca still refused to issue her passport. In June 2006, she informed the Secretariat by phone that she had been promised her passport. On 7 July 2006, she informed the Secretariat that she had received her passport, but that she had not received any compensation.

On 24 November 2006, the author responded to the State party’s submission, in which she disputes its claim that she was never denied a passport. She claims that she filled in the requisite documents on more than one occasion, that she attended the consulate once or twice every two months but for years was constantly shuttled between the Consulate in Rabat and Casablanca where every attempt was made to prevent her receiving her passport. She claims that the refusal to grant her a passport for such a long time caused her moral, financial, and academic damage and that although she has received her passport now it is a passport for two rather than the usual five years.

State party

PERU

Case

Avellanal, 202/1986

Views adopted on

28 October 1998

Issues and violations found

No standing of wife in court procedure over property - articles 3, 14 paragraph 1, 26.

Remedy recommended

The Committee, accordingly, is of the view that the State party is under an obligation, in accordance with the provisions of article 2 of the Covenant, to take effective measures to remedy the violations suffered by the victim. In this connection, the Committee welcomes the State party’s commitment, expressed in articles 39 and 40 of Law No. 23506, to co-operate with the Human Rights Committee, and to implement its recommendations.

Due date for State party response

12 June 1991

Date of reply

None

State party response

N/A

Author’s response

On 31 August 2006, the author again informed the Committee that the State party had not implemented the Decision.

Case

Carranza Alegre, Marlem, 1126/2002

Views adopted on

28 October 2005

Issues and violations found

Arbitrary detention, torture and inhuman and degrading treatment, faceless judges - Articles 2, paragraph 1, 7, 9, 10, and 14.

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is required to furnish the author with an effective remedy and appropriate compensation. In the light of the long period she has already spent in detention and the nature of the acts of which she stands accused, the State party should give serious consideration to terminating her deprivation of liberty, pending the outcome of the current proceedings. Such proceedings must comply with all the guarantees required by the Covenant.

Due date for State party response

6 February 2006

Date of State party response

25 May 2006

State party response

The Committee will recall that in the interim follow-up report of the eighty-seventh session the State party’s response was set out. It informed the Committee that the author was acquitted by decision of the Supreme Court of 17 November 2005 and released. It noted that the “Consejo Nacional de Derechos Humanos” (National Human Rights Council) was currently examining the granting of compensation. By letter of 23 August and 15 September 2006, the State party informs the Committee that the amount of compensation is still under consideration.

Author’s response

By letters dated 13 February and 8 May 2006 the author confirmed that on 17 November 2005 the Supreme Court decided in favour of her acquittal and that she has been released. She intends to contact the Ministry of Justice in connection with the Committee’s recommendation that she should be provided with compensation.

By letter of 30 June 2006, the author notes that 6 months have elapsed since the report issued by the “Consejo Nacional de Derechos Humanos” and that the State party has not yet fully complied with the Committee’s views. She notes that she has not been offered the right to return to her job, nor has she been compensated. The Consejo Nacional de Derechos Humanos has not even heard her claims.

Case

K.N.L.H, 1153/2003

Views adopted on

24 October 2005

Issues and violations found

Abortion, right to a remedy, inhuman and degrading treatment and arbitrary interference in ones private life, protection of a minor - Articles 2, 7, 17, 24.

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is required to furnish the author with an effective remedy, including compensation. The State party has an obligation to take steps to ensure that similar violations do not occur in the future.

Due date for State party response

9 February 2006

Date of State party response

7 March 2006

State party response

The Committee will recall that as set out in the Annual Report A/61/40, the State party had informed it of the publication of a Report by the National Human Rights Council (Consejo Nacional de Derechos Humanos), based on the K.N.L.H. case. The report proposed the amendment of articles 119 and 120 of the Peruvian Criminal Code or the enactment of a special law regulating therapeutic abortion. The National Human Rights Council had required the Ministry of Health to provide information as to whether the author had been compensated and granted an effective remedy. No such information was provided in the letters sent by the Health Ministry in reply to the National Human Rights Council.

The Committee will also recall that during the consultations with the State party on 3 May 2006, Mr. José Burneo, Executive Secretary of the National Human Rights Council of Peru, said that the absence of a response was deliberate, as the question of abortion was extremely sensitive in the country. His Office was nevertheless thinking of drafting a bill allowing the interruption of pregnancy in cases of foetuses born anencephalic.

Author’s response

By letter of 16 June 2006, the Centre for Reproductive Rights had contended that by failing to provide the complainant with an effective remedy, including compensation, it had failed to comply with the Committee’s decision.

On 6 March 2007, the author informed the Committee that the new government has continued to question the Committee’s views. On 1 December 2006, the author met with representatives of the Human Rights Council (Consejo Nacional de Derechos Humanos) who also spoke for the Ministry of Justice. In that meeting, the State party’s representatives explained that the State was willing to comply with the Committee’s view. However, the author considers that the government’s proposed action, which would consist in the payment of $10,000 in compensation as well as the introduction of a proposal to amend legislation in order to decriminalize abortions in cases of anencephalic foetuses, to be insufficient. The author expresses dissatisfaction with the fact that compensation would reportedly be made only in relation to the violation of article 24 of the Covenant, as the State Party’s representatives allegedly indicated that they considered that there had been no violation of other articles of the Covenant. The author refers to statements made by representatives from the State Party that allegedly questioned the existence of violations of article 2, 7 and 17 of the Covenant. Moreover, the author maintains that the proposed change in legislation presupposes that the Committee was mistaken in its analysis. The author contends that, in fact, such legislative change is unnecessary as therapeutic abortion already exists in Peru and should be interpreted in accordance with international standards to include cases where the foetus is anencephalic.

The author recalls that the Constitutional Court of Peru (Tribunal Constitucional Peruano) has considered that the Committee’s views are definitive international judicial decisions that must be complied with and executed in accordance with article 40° of Law No. 23506 and article 101° of the Constitution.

The author asks that the Committee request the State to recognize explicitly the existence of violations of article 2, 7 and 17 of the Covenant. The author also requests that a discussion on the concept of an effective remedy be initiated. To this end the author provided, in annex, a detailed proposal for reparations totalling $96,000 (the proposal includes $850 for payment of expenses such as the birth and baby’s burial, $10.400 for psychological rehabilitation, $10,000 for diagnostic and treatment of physical consequences, $50,000,000 for moral damages and $25,000 for “life project” (lost opportunities). Finally, the author asks that a meeting be held with representatives of the State Party and the organizations representing the author so as to ensure that adequate measures are taken for the non-repetition of the violations denounced. The State Party should retract its proposal in which women seeking a therapeutic abortion must seek a judicial authorization.

State party

PHILIPPINES

Case

Wilson, 868/1999

Views adopted on

30 October 2003

Issues and violations found

Mandatory death penalty for rape after unfair trial - “most serious” crime. Compensation after acquittal - Articles 7, 9, paragraphs 1, 2, and 3, 10, paragraphs 1, and 2.

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy. In respect of the violations of article 9 the State party should compensate the author. As to the violations of articles 7 and 10 suffered while in detention, including subsequent to sentence of death, the Committee observes that the compensation provided by the State party under its domestic law was not directed at these violations, and that compensation due to the author should take due account both of the seriousness of the violations and the damage caused to the author. In this context, the Committee recalls the duty upon the State party to undertake a comprehensive and impartial investigation of the issues raised in the course of the author’s detention, and to draw the appropriate penal and disciplinary consequences for the individuals found responsible. As to the imposition of immigration fees and visa exclusion, the Committee takes the view that in order to remedy the violations of the Covenant the State party should refund to the author the moneys claimed from him. All monetary compensation thus due to the author by the State party should be made available for payment to the author at the venue of his choice, be it within the State party’s territory or abroad.

Due date for State party response

10 February 2004

Date of reply

17 July 2006 (It had previously replied on 12 May 2005 and 27 January 2006)

State party response

The Committee will recall that, as set out in its 84th report, the State party submitted, on 12 May 2005, that it was “disinclined” to accept the Committee’s findings of facts, more particularly its assessment of evidence. It submitted that the findings rested on an incorrect appreciation of the facts and contested the finding that the compensation provided was inadequate. It submitted that the author failed to discharge the burden of proof; ex parte statements made by the complainant are not considered evidence and do not constitute sufficient proof of the facts alleged. An investigation conducted by the City Jail Warden of the Valenzuela City Jail, where the author was confined, disputed all allegations made by the author. The author had failed to provide specific acts of harassment to which he was supposedly subjected to while in prison and did not identify the prison guards who allegedly extorted money from him. As the author had already flown home while the communication was pending before the Committee he could not have feared for his security by naming those who had allegedly ill-treated him. It reiterated its submission that the author failed to exhaust domestic remedies. Finally, it considered that the compensation provided is adequate that the author had not yet sent an authorized representative to claim the cheques on his behalf and that by insisting that the State party make available to the complainant all monetary compensation due to him, “the Committee might have exceeded its competency and caused great injustice to the State party”.

On 27 January 2006, the State party submitted that the Views were sent to the Department of Justice and the Department (DOJ) of Interior and Local Government (DILG) for appropriate action last 10 August 2005. DOJ exercises supervision over the Bureau of Immigration while DILG exercises supervision over city jails. An investigation was carried out in 2005 by the City Jail Warden of the Valenzuela City Jail where Mr. Wilson was confined. The investigation revealed the following: (1) The Valenzuela City Jail has no “cages” in which the author could have been confined upon his arrest; and (2) There is no record of a serious shooting incident of an inmate which supposedly occurred during the author’s detention and which supposedly traumatised the author. According to the investigation results, the only incident on record was a non‑fatal shooting on 17 June 1996 of an inmate who was shot by his jail guard when the former tried to escape from detention. Finally, it submits that the author failed to provide specific acts of harassment to which he was supposedly subjected while in prison and failed to identify the prison guards and officials who allegedly harassed and extorted money from him.

On 17 July 2006, following a request from the Committee, through the Special Rapporteur on Follow-up, the State party responded to counsel’s submission of 3 May 2006. It argues that the investigation was carried out impartially and that no evidence has been provided to demonstrate otherwise. The allegation is merely inferred from the fact that, the jail warden, as a public officer, exercises administrative control over his subordinates and the DILG is not an external accountability mechanism. It argues that sanctions under municipal law would have deterred both the jail warden and the DILG from not acting impartially. The State party contests that unreasonable delay in the progress of the investigation has been established. The author did not express his wish to take part in the investigation, to receive information on its progress to assist in ensuring the prosecution of the alleged perpetrators of torture. The State party argues that the author is obliged to present clear and convincing evidence with respect to the shooting incident and the alleged existence of the cage. Unless and until independent corroborating evidence are adduced the municipal authorities are not obliged to act upon such claims. It concludes that its investigation meets the Covenant standards of impartiality, promptness and thoroughness.

Author’s response

On 9 February 2006, the author submitted that the procedure currently under consideration is that of follow-up and that therefore it is inappropriate to resubmit arguments on the merits. He requests information on the current status of follow-up in this case.

On 3 May 2006, the author’s counsel responded to the State party’s response of 27 January 2006. He submits that the State party’s response is inappropriate as 1. It was limited to an investigation only and 2. The investigation conducted was not prompt, comprehensive and/or impartial. Neither the City of Jail Warden, which conducted the investigation nor the DILG which oversaw it, can be considered an external and therefore impartial mechanism. In addition, it is not possible to assess the promptness and effectiveness of the investigation as the authorities never informed the complainant about the investigation, including when it would take place and why the investigation was closed. Counsel points to treaty body jurisprudence as well as jurisprudence of the ECHR for the proposition that a complainant should be invited to take part in such an investigation and to receive information about its progress and outcome. As to the conduct of the investigation, Counsel submits that it is clear that the author’s complaints were disregarded. The claim that the author failed to provide specific acts of harassment or to identify the persons who subjected him to harassment is an attempt to reduce the State party’s duty to conduct a thorough investigation - it is precisely the purpose of such investigations to establish such facts. In any event, these claims are untrue and Counsel refers to the communication itself in which the author sets out in detail his complaints.

Counsel highlights that failure of the State party to provide information about the compensation with regard to the breaches of articles 7, 9 and 10 as well as the refunding of the moneys claimed from the author as immigration fees and with respect to the guarantees of non-repetition. Counsel also highlights the author’s concerns with the measures the State party should take to prevent similar violations in the future.

Committee’s Decision

The Committee regards the State party’s response as unsatisfactory and considers the dialogue ongoing.

State party

POLAND

Case

Fijalkowska, 1061/2002

Views adopted on

26 July 2005

Issues and violations found

Articles 9, paragraphs 1 and 4.

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an adequate remedy, including compensation, and to make such legislative changes as are necessary to avoid similar violations in the future. The State party is under an obligation to avoid similar violations in the future.

Due date for State party response

27 October 2005

Date of reply

26 October 2006

State party response

The State party had replied on 31 August 2006 and stated that by letter dated 13 July 2006, the author was informed of a decision of the Ministry of Foreign Affairs to offer her 15,000 PLN ($5,022) in compensation. She responded in a letter of 17 July 2006, requesting 500,000 PLN. Despite, the Ministry’s subsequent offer of 20,000 PLN ($6,696), the author reiterated her demand for 500,000 PLN ($167,408). The State party submitted that the author’s refusal of the compensation rendered the implementation of the Views impossible at this stage.

On 26 October 2006, the State party provided a copy of a letter from the author, dated 22 August 2006 in which she accepts the sum of 20,000 PLN ($6,696) as a remedy in this case.

Committee’s Decision

The Committee considers that the remedy to be satisfactory and does not intend to consider this matter any further under the follow‑up procedure.

State party

PORTUGAL

Case

Correia de Matos, 1123/2002

Views adopted on

28 March 2006

Issues and violations found

Right to defend oneself - Article 14, 3 (d).

Remedy recommended

The Committee considers that the author is entitled to an effective remedy under article 2, paragraph 3 (a), of the Covenant. The State party should amend its laws to ensure their conformity with article 14, paragraph 3 (d), of the Covenant.

Due date for State party response

4 July 2006

Date of reply

Had replied on 12 July 2006

State party response

The State party submitted that Portuguese laws assign great importance to guaranteeing an equitable procedural system, particularly in criminal procedures. It provided a detailed description of its legislation, its history and existing procedural guarantees, referring to the relevant provisions of the Constitution and the Code of Criminal Procedure, which establish that only a lawyer who is a full member of the bar can assist those accused in criminal procedures.

The State party explained that in light of Portuguese law, as the author had been suspended from the bar and refused to appoint a lawyer to assist him, the judge in his case had no choice but to appoint one. Had he not done so, the procedure would have been declared null and void. The State party highlighted that under Portuguese law the accused has the right throughout the whole criminal procedure and independently of the arguments made by their legal counsel, to express themselves and to be heard, which is not to be confused with the right to defend oneself.

The State party further submitted that the text of article 14, paragraph 3 (d) of the Covenant contains the word “or” which would seem to indicate that the right to defend oneself and the right to legal assistance of one’s choosing are alternative options. Additionally, the State party referred to the jurisprudence of the European Court of Human Rights on this issue.

It concluded that its legislation is already in compliance with article 14, paragraph 3 (d), that it is therefore not necessary to amend it, and that it is not necessary to extend any new rights to the author in addition to those he has already exercised or to allow him to appeal a decision that has already been appealed in the domestic courts. It would make no sense to take such action, which is unrelated to the merits of the case, to establish whether Mr. Carlos Matos had insulted a judge.

Author’s response

On 23 November 2006, the author commented that the State party in refusing to implement the Committee’s Views displays (1) its lack of respect for the ICCPR and the OP, in particular article 2, paragraph 2 of the former and (2) a lack of respect for the author’s civil rights and failure to comply with article 2, paragraph 3 of the ICCPR. He is of the view that he should be compensated by inter alia at least 500,000 euros as well as recognition that he should have the right to defend himself at any stage of a criminal procedure.

Committee’s Decision

The Committee regrets the State party’s refusal to accept the Committee’s Views and considers the dialogue ongoing.

State party

REPUBLIC OF KOREA

Case

Hak-Cheol Shin, 926/2000

Views adopted on

16 March 2004

Issues and violations found

Freedom of expression - 19, paragraph 2.

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy, including compensation for his conviction, annulment of his conviction, and legal costs. In addition, as the State party has not shown that any infringement of the author’s freedom of expression, as expressed through the painting, is justified, it should return the painting to him in its original condition, bearing any necessary expenses incurred thereby. The State party is under an obligation to avoid similar violations in the future.

Due date for State party response

21 June 2004

Date of reply

16 August 2006 (The State party had previously responded on 19 November 2004)

State party response

The Committee will recall that on 19 November 2004, the State party had stated that the author was granted a special amnesty by the Government of the State party on 15 August 2000 (See Annual Report A/60/40 (Vol. II)). Since he was convicted through legal proceedings, he was not eligible for compensation under the State Compensation Act. His painting could not be returned as it was lawfully confiscated through the Supreme Court’s ruling. Taking into account legal limitations on the implementation of the Committee’s Views, the Ministry of Justice is now considering the practices and procedures of other countries to give effect to the Views, with a view to introducing an effective implementation mechanism in the future.

The Ministry of Justice sent the original text of the Views and its translated version in Korean to the Supreme Public Prosecutor’s Office and requested that the law enforcement officials bear in mind these Views during their official activities. To prevent the recurrence of similar violations, the Government was actively pursuing the abolition or revision of the National Security Law. In the meanwhile, it ensured the Committee that it would continue to make the utmost efforts to minimize the possibility of arbitrary interpretation and application of the Law by law‑enforcement officials. The Ministry has published the Views in Korean in the official Electronic Gazette.

On 16 August 2006, the State party stated that in March 2005, the Ministry of Justice, having reviewed the implementation of the Views by other countries, published a reference book following a study and review of possible solutions to the problems. It concluded that the problem involves the enforcement of the Justice Ministry’s ruling over the case and cannot be resolved by the decision of the Administration alone such as the Ministry of Justice. It is a matter requiring institutional reform at the advice of the judicature, the National Human Rights Commission civil experts, etc.

Author’s response

Request for response sent to author on 6 September 2006 with a deadline of 6 November 2006 for comments.

Case

Keun-Tae Kim, 574/1999

Views adopted on

3 November 1998

Issues and violations found

Freedom of expression - Article 19.

Remedy recommended

Under article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy.

Due date for State party response

30 March 1999

Date of reply

16 August 2006 (The State party had previously responded on 16 February 2005)

State party response

The Committee will recall that on 16 February 2005, the State party submitted that since the author was found guilty of violating the National Security Act, he is not eligible for criminal compensation from the State under the terms of the Criminal Compensation Act unless he is acquitted of his criminal charges through a retrial. In addition, it stated that since the investigation and trial were done in accordance with law, and there is no evidence demonstrating that public officials inflicted damage on the author intentionally or negligently, he may not claim damages under the State Compensation Act. The author has not applied for compensation under the Act on Restoration of Honor and Compensation for the People Involved in the Democratization Movement, which provides compensation for persons killed or injured in the course of forwarding the democratization movement. However, the State party submitted that his honour was duly restored and he has been recognized as a person involved in the democratization movement. It states that he was granted amnesty on 15 August 1995 and thus is eligible for public elections.

To prevent recurrence of similar violations, discussions are being held within the government and the National Assembly to amend or repeal some provisions of the National Security Act that require changes in order to reflect the recent reconciliation process in the inter-Korean relationship, and to prevent any possible violations of human rights. The investigation agencies and the judiciary have strictly limited the application of the National Security Act to situations which are absolutely necessary for maintaining the security of the State and protecting the survival and freedom of nationals. The Government published a translated version of the Views in Korean via the media, and also sent a copy to the Court.

On 16 August 2006, the State party submitted that both proposals for amendments to or repeal of the National Security Act are under consideration at the National Assembly. Two draft bills supporting the repeal of the National Security Act were each submitted on 20 and 21 October 2004, and the one backing the Act’s amendment was submitted on 14 April 2005, and is currently under consideration by the National Assembly’s Legislation and Judiciary Committee.

Author’s response

Request for response sent to author on 6 September 2006 with a deadline until 6 November 2006 for comments.

Case

Jong-Kyu Dohn, 518/1992

Views adopted on

19 July 1995

Issues and violations found

Freedom of expression - 19, paragraph 2.

Remedy recommended

The Committee is of the view that Mr. Sohn is entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective remedy, including appropriate compensation, for having been convicted for exercising his right to freedom of expression. The Committee further invites the State party to review article 13 (2) of the Labour Dispute Adjustment Act. The State party is under an obligation to ensure that similar violations do not occur in the future.

Due date for State party response

15 November 1995

Date of reply

16 August 2006 (16 February 2005)

State party response

The Committee will recall that on 16 February 2005, the State party submitted that since the author was found guilty of violating the Labour Dispute Adjustment Act, he was not eligible for criminal compensation from the State under the terms of the Criminal Compensation Act unless he was acquitted of criminal charges through a retrial. In addition, it states that the Supreme Court, found on 26 March 1999 that the State had no obligation to provide compensation to the author, under the State Compensation Act, with regard to the lawsuit which he had filed against the government based on the Committee’s Views, as the Views are not legally binding and there is no evidence that public officials inflicted damage on the author intentionally or negligently in the course of the investigation or trial. The Act on Restoration of Honour and Compensation for the People Involved in the Democratization Movement, which provides compensation for persons killed or injured in the course of forwarding the democratization movement, is not applicable in the author’s case as he was not injured. However, his honour was restored and he has been involved in the democratization movement. The State party states that he was granted a special pardon on 6 March 1993.

To prevent recurrence of similar violations, the Trade Union and Labour Relations Adjustment Act, enacted in March 1997, repealed the provisions of the previous Labour Dispute Adjustment Act prohibiting third party intervention in labour disputes. Now under article 40 of the new Act, during collective bargaining or industrial action, a trade union may be supported by third parties such as a confederation of association organizations of which the trade union is a member or a person nominated by the trade union.

On 16 August 2006, the State party states that Clause 2 of article 13 of the Labour Dispute Adjustment Act (dealing with prohibiting third party involvement), the point of contention in 1991, was repealed following the legislation of the Trade Union and Labour Relations Adjustment Act on 31 December 1996. Now, cases dealing with the prohibition of third party involvement can receive legal support under article 40 of the Trade Union and Labour Relations Adjustment Act, if reported to the administration office. Article 40 (Support Labour Relations) of the Trade Union and Labour Relations Adjustment Act as currently in force provides:

(1)Trade Union and an employer may be supported by persons or organizations of the following subparagraphs with regard to collective bargaining (Amended on 20 February 1998):

(a)Industrial federations or a national confederation of which the trade union is a member;

(b)An employers association of which the employer is a member;

(c)A person who has been notified to the Administrative Authorities by the trade union or employer concerned to obtain support; or

(d)A person who is entitled to provide support under other relevant laws or regulations.

(2)Others except those who are stipulated in paragraph (1) shall not intervene in, manipulate, and instigate collective bargaining or industrial action.

Author’s response

Sent to author on 6 September 2006 with a deadline until 6 November 2006 for comments.

Case

Yeo-Bum Yoon and Myung-Jin Choi, 1321/2004 and 1322/2004

Views adopted on

3 November 2006

Issues and violations found

Conscientious objection to enlistment in compulsory military service - Articles 18, paragraph 1.

Remedy recommended

An effective remedy, including compensation.

Due date for State party response

16 April 2007

Date of reply

March 2007 (no date)

State party response

The State party informs the Committee that on 8 January 2007 an outline of the Views was reported in the major Korean newspapers and on the principal broadcasting networks. The full text was translated and published in the Korean government’s Official Gazette. In April 2006 (prior to consideration by the Committee) a joint committee called the “Alternative Service System Research Committee” was set up as a policy advisory body under the Ministry of National Defense. It is made up of members selected from the legal, religious, sporting, and artistic circles and from amongst concerned public authorities. Its mandate is to review the issues involving conscientious objection to military service and an alternative service system and between April 2006 and December 2006 meetings took place. By the end of March 2007 this Committee will release its results on the basis of which the State party will proceed with the follow-up of this case.

As to the consideration of remedial measures for the authors in question, the State party informs the Committee that a task force relating to the implementation of individual communications was set up. It found that new legislation will have to be enacted by the National Assembly, for the purposes of reversing the final judgements against the authors. The enactment of such legislation is currently being discussed but will be difficult. The State party submits that it will strive to find a remedy to appropriately implement the Views through a comparative analysis of the merits of each remedial measure and studies of overseas cases.

State party

RUSSIAN FEDERATION

Case

Zheikov, 889/1999

Views adopted on

17 March 2006

Issues and violations found

Torture, inhuman and degrading treatment - article 7, read together with article 2.

Remedy recommended

An effective remedy, including completion of the investigation into the author’s treatment, if still pending, as well as compensation.

Due date for State party response

3 July 2006

Date of reply

26 July 2006

State party response

The State party states that it transpires from the materials of the criminal case file opened by the Prosecutor’s Office of Tula Region on 18 November 1996 under article 171 of the Criminal Procedure Code (CPC) that this case was investigated fully and impartially. Fact-finding carried out at the preliminary investigation stage did not find any evidence to corroborate the author’s allegations of ill-treatment. The Prosecutor determined that the detaining duty officer had acted in compliance with article 12 and 13 of the Law governing the militia that allowed militia officers to apply physical force to detain persons that committed an administrative offence. It concluded that the author, who was then heavily intoxicated, was detained while committing an administrative offence, and had sought to use force against the duty officer. Article 23 of the same Law exempts militia officers from liability for applying physical force when it is proportionate.

On 11 December 2001, the Central Prosecutor’s Office of Tula decided to terminate criminal prosecution of the officers of the Proletarskiy District Office of Internal Affairs of Tula in the absence of a finding of corpus delicti in their actions (article 171 of the CPC). On 16 May 2006, the deputy prosecutor of the Central Prosecutor’s Office of reopened the investigation. Since the criminal prosecution of the militia officers was terminated, the actions of unidentified persons were deemed to fall within the scope of corpus delicti of article 109, part 1, of the Criminal Code (infliction of death by negligence). On 18 May 2006, the criminal case No. 052-0172-96 was closed for lapse of time on the basis of article 24, part 1, paragraph 3, of the CPC as the investigation could not identify the persons who were suppose to have subjected the author to torture.

As for the Committee’s findings under articles 2, 7 and 10 of the Covenant, the State party submits that, none of these articles were violated with regard to Zheikov. The criminal proceedings were initiated upon his request, the conduct of the investigation was monitored by the Office of the General Prosecutor, the criminal case was reopened a few times upon his request and all Zheikov’s complaints and appeals were considered on time. The State party concludes that, in accordance with article 2 of the Covenant, it ensured an effective remedy to Zheikov. It explains that it was impossible to identify a person against whom the proceedings should be initiated, since Zheikov gave contradictory evidence as to the injuries caused and identity of the culprits.

The State party further submits that the author had not exhausted all domestic remedies. (This information was not provided by the State party in its submission on admissibility and the merits). Reference is made to various articles of the Civil Procedure Code which could have been availed of by the author.

Author’s response

On 29 May 2007, the author reiterated his claims made in his communication and contested the State party’s follow-up response. He also submits that he had sent complaints to the International Protection Centre and to the Proletarskiy District Prosecutor Office of Tula prior to mailing his complaint to the Committee.

Committee’s Decision

The Committee regrets the State party’s refusal to accept the Committee’s Views and considers the dialogue ongoing.

State party

SWEDEN

Case

Alzery, 1416/2005

Views adopted on

25 October 2006

Issues and violations found

Failure to ensure the capacity to investigate the criminal responsibility of all relevant officials, domestic and foreign, for conduct in a breach of article 7 and to bring the appropriate charges - article 7, read alone and in conjunction with article 2 and breach of its obligations under article 1 of the Optional Protocol.

Remedy recommended

An effective remedy, including compensation ... the Committee welcomes the institution of specialized independent migration courts with power to review decisions of expulsion such as occurred in the present case.

Due date for State party response

6 February 2007

Date of reply

14 March 2007

State party response

The State party informed the Committee that on 1 March 2007, the Government repealed its decision of 18 December 2001 and turned over Mr. Alzery’s request for a residence permit in Sweden to the Swedish Migration Board to be examined under the new Aliens Act of 2005. Furthermore, the Government decided to turn over Mr. Alzery’s request for compensation to the Office of the Chancellor of Justice. The Government has instructed the Chancellor of Justice to handle his request and to attempt to reach an agreement with Mr. Alzery. The Chancellor is authorized to go beyond what is provided for under the legislation on claims for damages.

Author’s response

On 15 May 2007, the author responded that he welcomed the decision of the government to a large extent. However, it remains to be seen whether and how his right to reparation will be realised. The author’s request for diplomatic assistance from the Swedish government to enable him to leave Egypt was turned down by the government. On 9 May 2007, the Migration Board rejected the author’s request for a residence permit and rejected counsel’s request for an oral hearing. It based its decision on a statement by the security police which said that its evaluation of the author’s so‑called terrorist links remain the same today as in 2001. The Board did not take into account any events subsequent to his expulsion on 18 December 2001. The author will appeal this decision to the government. The case will also be evaluated by the Supreme Migration Court. The author requests the Committee to take no decision on the submissions provided in this case until the domestic procedures have terminated. In addition, he notes that the State party did not comment on the lack of a criminal investigation against foreign agents or the fact that the investigation by the Ombudsman in practice created immunity for the Swedish police officers involved in the author’s rendition. According to the author, no investigations have been undertaken by the State party.

State party

TAJIKISTAN

Case

Kurbanov, 1208/2003

Views adopted on

16 March 2006

Issues and violations found

Torture, forced confession, unfair trial, arbitrary arrest and detention, not informed promptly of charges - Articles 7; 9, paragraphs 1, and 2; 14, paragraphs 1, and 3 (g).

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Mr. Kurbanov with an effective remedy, which should include a retrial with the guarantees enshrined in the Covenant or immediate release, as well as adequate reparation. The State party is also under an obligation to prevent similar violations in the future.

Due date for State party response

9 July 2006

Date of reply

11 July 2006

State party response

The State party affirms that its Ministry of Foreign Affairs did not receive two Notes Verbales from OHCHR (22 October 2003 and 22 November 2005), and thus was unaware of the registration of the case and had no possibility to submit a reply.

The State party submits two letters, one from the Supreme Court and one from the Office of the Prosecutor General, and informs the Committee that both institutions examined the Committee’s Views and gave their opinion to the Governmental Commission on the State party’s compliance with its international human rights obligations.

(a) “Conclusions” of the President of the Supreme Court of Tajikistan in relation to the case.

On 29 June 2006, the President of the Supreme Court recalled the facts of and procedure in the case and contended that the author’s guilt was established on the basis of corroborating evidence, and his conviction fitted the crimes committed. His arrest, on 28 October 2001, as well as all subsequent criminal-procedure acts, was lawful. There were no major procedural violations during the preliminary investigation or during the court trial. He concludes that the Committee’s findings were thus not confirmed. He admits that on 6 January 2001, Kurbanov was arrested unlawfully, but that the officers responsible received disciplinary sanctions for this. He contends that the author’s affirmation that his son’s subsequent arrest was due to the fact that they were disciplined is groundless. His son was arrested in relation to a criminal case that was opened on 28 October 2001, with the sanction of the First Deputy Prosecutor-General.

(b) Letter from the Prosecutor General’s Office, dated 30 June 2006 The Prosecutor’s Office extensively reiterates the facts of the criminal case and confirms the author’s guilt. It affirms the author’s allegations of unlawful detention in the beginning of 2006, but submits that those responsible were disciplined (names of 5 responsible given). A criminal case against them was initiated on 9 November 2001, and an inquiry was conducted into the author’s allegations that during his unlawful detention he was tortured and forced to confess guilt and that his family was persecuted to force them to withdraw their complaints. The investigation concluded that these allegations were groundless. In particular, as to the alleged torture, a medical examination was conducted and no marks of torture were revealed on the author’s body. This investigation was therefore closed, on 30 November 2002.

On 28 November 2001, Kurbanov was arrested on suspicion of robbery, and the same day he was interrogated as a suspect, in his lawyer’s presence. He was placed in custody on 29 November 2001 (this decision was sanctioned by the First deputy Prosecutor General). All subsequent procedural acts were held in his lawyer’s presence, and in the lawyer’s presence he confessed his guilt. During his detention, he did not make any complaint about the use of unlawful methods of investigation against him. In court, Kurbanov retracted his confession. His new version was examined and evaluated, and his guilt was confirmed by corroborating evidence. The court concluded that this was a defence strategy, aimed at limiting his liability.

Author’s response

Sent to the author on 26 September 2006 with a deadline of 26 November 2006 for comments.

Further action taken

A follow-up meeting was held between the Special Rapporteur, State party representatives (Ambassador Aslov, First Secretary Isomatov) and the secretariat on 28 March 2007.

On the question of execution of complainants after registration of complaints and dispatch of interim measures requests, the Ambassador responded that the cases in question related to the situation obtaining prior to pronouncement of a moratorium on executions. There had been no executions since the moratorium, and the current moratorium on executions applied to ALL death penalty cases (exact date of announcement and entry into effect of moratorium to be communicated to the Rapporteur as soon as possible). There have been many instances of commutations of death sentences in the last two years, and according to the ambassador, the process of drafting legislation that would abolish capital punishment is ongoing.

On the question relating to the disclosure of burial sites of executed prisoners, the Ambassador noted that work was still ongoing on a change to the relevant legislation. The Rapporteur conveyed the importance for the government to respond fully on ALL registered cases, and noted that insufficiency of responses would lead to the complainants’ allegations being taken as true. His delegation replied that this concern would be forwarded to Dushanbe and to the Inter‑Ministerial Committee responsible for the implementation of Tajikistan’s international obligations, including cooperation with human rights bodies. The Rapporteur suggested sending a model of a comprehensive State party reply to the head of the inter-ministerial committee. The delegation noted, in reply, that the government was already cooperating with the human rights component of UNTOP and would cooperate with any other United Nations agency designated as focal point for human rights matters after UNTOP’s departure. Future training courses on complaints procedures would also be welcomed by the government.

The ambassador promised to solicit more detailed information from the capital on specific implementation details on each of the eight Views against Tajikistan finding violations of the Covenant. In that context, earlier availability of the Russian translations of Views would be an advantage. The ambassador pledged cooperation with the Committee and the Rapporteur for follow-up, and indicated that the Government would be prepared to accept a follow-up visit from the Rapporteur.

Committee’s Decision

The Committee regards the State party’s submission as unsatisfactory and considers the dialogue ongoing.

Case

Boymurodov, 1042/2001

Views adopted on

20 October 2005

Issues and violations found

Torture, forced confession, incommunicado detention, right to counsel - Article 7, 9, paragraph 3, 14, paragraph 3 (b), and (g).

Remedy recommended

Pursuant to article 2, paragraph 3 (a), of the Covenant, the Committee considers that the author’s son is entitled to an appropriate remedy, including adequate compensation.

Due date for State party response

1 February 2006

Date of reply

14 April 2006

State party response

The State party submits two letters, one from the Supreme Court and one from the Office of the Prosecutor General, and informs the Committee that both institutions have examined the Committee’s Views and gave their opinion, at the request of the Governmental Commission on the State party’s compliance with its international human rights obligations.

The State party provides the decision of the Supreme Court which examined the Views. It studied the materials from the criminal case and established that during the preliminary investigation and court expertise no gross violations occurred of criminal or procedural legislation of Tajikistan concerning the facts of his illegal detention and violation of right to defence, mentioned in article 9 and 14 paragraph 3 (b) of the Covenant. It submits that in a statement on 10 October 2000, the author said that at present time he was not in need of a defence lawyer. From 9 November 2000, defence lawyer Yatimova K. participated in the preliminary investigation and trial and defended Boimudov at court.

Concerning the alleged violations of articles 7 and 14 paragraph 3 (g), the Supreme Court concluded the following: the facts as set out in the State party’s response to the Views; that the case file contains a power of attorney with the name of the author’s lawyer, who represented the author during the investigation and trial, dated 9 November 2000; that with respect to the allegation of torture, a criminal case was opened by the Supreme Court on 31 July 2001, and was sent to the Prosecutor General’s office, which opened a criminal case. This was closed on 5 November 2001. It concluded that the author’s conviction was lawful and well-founded, and his conviction and sentence fair.

The letter from the Prosecutor General, made similar arguments to that of the Supreme Court. However, he also stated that the criminal case on the torture allegation referred to above was re-opened (it is assumed since the Views).

Author’s response

State party’s response was sent to the author on 26 September 2006 with a deadline of 26 November 2006 for comments.

Further action taken

See above for information on a follow-up meeting that took place in March 2007.

Case

Dovud and Sherali Nazriev, 1044/2002

Views adopted on

17 March 2006

Issues and violations found

Torture, forced confession, unlawful detention, no legal representation at initial stages of the investigation, no notification of execution or burial site - Articles 6; 7; 9, paragraph 1; 14, paragraphs 1, 3 (b), (d), and (g) and breach of the Optional Protocol.

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Mrs. Shukurova with an effective remedy, including appropriate compensation, and to disclose to her the burial site of her husband and her husband’s brother. The State party is also under an obligation to prevent similar violations in the future.

Due date for State party response

2 July 2006

Date of reply

13 July 2006

State party response

The State party submits two letters, one from the Supreme Court and one from the Office of the Prosecutor General, and informs the Committee that both institutions have examined the Committee’s Views and gave their opinion, at the request of the Governmental Commission on the State party’s compliance with its international human rights obligations.

(a) Letter of the Chairman of the Supreme Court of Tajikistan.

The Chairman of the Supreme Court recalls in extenso the facts/procedure of the case. It submits information provided by the State party prior to consideration of the case, including the fact that their requests for Presidential pardon were denied in March 2002, and that the death sentences were carried out on 23 June 2002 (NB: the case was registered in January 2002). Thus, the executions took place when the judgment became executory and all domestic judicial remedies were exhausted.

The examination of the criminal case file showed that the Nazrievs’ guilt was established by much corroborating evidence (an extensive list of that evidence is provided, for example witnesses’ testimonies, material evidence, and several experts’ conclusions that were examined and evaluated by the court). According to the Chairman of the Supreme Court, the author’s allegations about the use of torture by the investigators to force the brothers to confess guilt are groundless and contradict the content of the criminal case file and the rest of the evidence. There is no record in the criminal case file about any requests or complaints in relation to the assigned lawyers, no request to change the lawyers, and no complaints or requests from Nazrievs’ lawyers about the impossibility to meet with their clients.

The Chairman of the Supreme Court rejects as groundless the author’s allegations that both brothers were subjected to torture during the preliminary investigation, and that the court ignored their statements in this regard. He notes that according to the criminal case file, neither during the preliminary investigation nor in court did the brothers or their representatives make any torture claims (it is noted that the court trial was public and held in presence of the accused, their representatives, relatives, and other individuals). In addition, the brothers “did not confess guilt either during the preliminary investigation or in court and their confessions” were not used as evidence when establishing their guilt. Notwithstanding, the court has requested from the Detention Centre of the Ministry of Security (where the brothers were kept) to provide their medical records, and according to a response of 18 April 2001, it transpired that both brothers have requested different medical care during their stay, in relation to the diseases of hypertonia, “acute respiratory virus infection”, grippe, caries, depressive syndrome. The brothers were examined on several occasions by medical doctors and have been given appropriate medical care. No marks of torture or ill‑treatment were revealed during these examinations, nor have they complained about torture/ill-treatment during the medical examinations.

Finally, in relation to the author’s allegation that she was not informed either of the date of execution nor of the burial place of authors, the Chairman refers the Committee to its law on the Execution of Criminal Penalties. He states that when the Supreme Court learnt that the brothers’ had been executed, it informed the relatives.

(b) Letter dated 14 June 2006, signed by the Deputy Prosecutor General.

The content of this letter is very much similar to the information received from the Supreme Court, as summarized above, with identical conclusions.

Author’s response

State party’s response was sent to the author on 26 September 2006 with a deadline of 26 November 2006 for comments.

Further action taken

See above for information on a follow-up meeting that took place in March 2007.

Committee’s Decision

The Committee regards the State party’s submission as unsatisfactory and considers the dialogue ongoing.

State party

UZBEKISTAN

Case

Bazarov, 959/2000

Views adopted on

14 July 2006

Issues and violations found

Re. the author, articles 9, paragraph 3; 14, paragraph 1, read together with article 6, and the rights of his parents, Mr. and Mrs. Bazarov, under article 7.

Remedy recommended

An effective remedy, including information on the location where their son is buried and effective reparation for the anguish suffered.

Due date for State party response

7 December 2006

Date of reply

29 January 2007

State party response

The State party informs the Committee that in light of its Views the Supreme Court reviewed the evidence several times in the case against the author, but no violations of the law of criminal procedure were found.

It states that pursuant to articles 475, 497-2, 498 and 516 of the Code of Criminal Procedure of Uzbekistan, court decisions may be delivered only to the parties to proceedings, namely, the person convicted, the victim, the civil claimant, the civil respondent, the defence lawyer and the procurator. Accordingly, it is not in keeping with current Uzbek legislation to provide the Human Rights Committee with the text of the judgement issued by the criminal division of the Supreme Court on 24 December 1999 concerning Mr. Bazarov’s case.

Further action taken

On 30 October 2006, a meeting was held between Mr. Obidov, from the Permanent Mission of Uzbekistan, the Special Rapporteur on Follow-up to Individual Complaints and the Secretariat on 30 October 2006, at Palais Wilson.

It was noted by the Special Rapporteur that seven cases have been decided to date against the State party and that the Committee awaits a follow-up response in two of them Sultanova, case No. 915/2000 and Bazarov, case No. 959/2000. The follow-up response in the latter case is not due until 7 December 2006. The State party’s representative stated that he would request information from his capital on the follow-up response in Sultanova.

As to the State party’s responses in Nazarov (911/2000), Arutyunyan (917/2000), Hudoyberganova (931/2000) the State party representative expressed his surprise and unhappiness with the fact that these responses have been categorised as “unsatisfactory” in the Annual Report, he would wish to have some guidance from the Committee on how cases are so categorised and highlighted the importance of keeping the dialogue open between the Committee and States parties which would be inhibited by such characterization. The Rapporteur responded that the categorization of these responses is currently being reviewed by the Committee and requested the State party to bear with it until the review was complete. He indicated that follow-up responses like those in the two cases under consideration in which the State party has provided a considered response should not be considered unsatisfactory so as to keep the dialogue between the Committee and the State party open.

Committee’s Decision

The Committee regrets the State party’s refusal to accept the Committee’s Views and considers the dialogue ongoing.

Case

Alexander Kornetov, 1057/2002

Views adopted on

20 October 2006

Issues and violations found

Torture, death penalty and unfair trial - articles 7 and 14, paragraph 3 (g).

Remedy recommended

Consideration of a reduction of his sentence and compensation.

Due date for State party response

30 January 2006

Date of reply

16 February 2007

State party response

The State party commented on the Committee’s Views. It recalls the facts of the case, including the fact that on 19 February 2002, the Supreme Court commuted the author’s death sentence to 20 years of imprisonment. It points out that the author’s allegation that the investigators had subjected him to an unlawful investigation had been examined by the court and were not confirmed. His charges were correctly assessed under national law and his punishment was proportional to the gravity of the crimes committed. There are no grounds to challenge, under supervisory proceedings, the courts’ decisions or to further reduce his prison term.

The State party then lists parts of its legislation in relation to compensation of damages, and affirms that the author may appeal to court with a request to be paid reparations for the damages he allegedly suffered during the preliminary investigation and during the court trial.

Further action taken

See above for information on a follow-up meeting that was held in October 2007.

Committee’s Decision

The Committee regrets the State party’s refusal to accept the Committee’s Views and considers the dialogue ongoing.