UNITED NATIONS
Press Release
23 December 2004
Two independent human rights bodies have found violations of the
International Covenant on Civil and Political Rights (ICCPR) and the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT).
The Human Rights Committee, the panel that monitors how countries implement
the ICCPR, issued its findings after examining cases brought by individuals
claiming to be victims of violations of the Covenant. The cases were
decided during the Committee's last session in Geneva, held from 18 October
to 5 November 2004. The Committee considered 16 cases, finding that eight
of these revealed violations of the Covenant, seven were inadmissible, and
another revealed no violation.
The Committee against Torture, which monitors countries' implementation of
the CAT, considered five five cases brought by individuals under article 22
of the Convention. The cases were decided during the Committee's last
session in Geneva, held from 15 to 26 November 2004. The Committee found
that two cases revealed violations of the Convention. Two other cases were
judged inadmissible and one revealed no violation. The full text of the
decisions can be found on the Office of the High Commissioner's website (go
to www.unhchr.ch/tbs/doc.nsf, then click on "CCPR" or "CAT", accordingly,
and then on "Jurisprudence").
Summary of Cases
The cases considered below are considered interesting in terms of
jurisprudence and because they develop the Committees' case law under a
number of substantive provisions of the two conventions. Those before the
Human Rights Committee concern breaches of the right to life (Pagayawon
Rolando v. Philippines), to freedom of thought, conscience and religion
(Leirvåg et al. v. Norway and Hudayberganova v. Uzbekistan), not to be
compelled to testify against himself or confess guilt (Deolall v. Guyana);
and to review of conviction and sentence by a higher tribunal (Alba
Cabriada v. Spain) Cases before the Committee against Torture relate to a
claim that deportation would give rise to a violation of the obligation not
to return ('refouler') a person to a country where there are substantial
grounds for believing that he would be in danger of being tortured (Falcon
Ríos v. Canada); and a claim of torture by the police.
Human Rights Committee
Case No. 912/2000: Deolall v. The Republic of Guyana
The author was sentenced to death for murder. He claimed that his trial was
unfair as it relied solely on a confession statement, which had allegedly
been extracted under torture.
The Committee found that the author's rights under article 14, paragraphs 1
(fair trial) and 3 (g) (right not to be compelled to testify against
himself or confess guilt) were violated. It considered that the testimony
of three doctors at trial prima facie supported the allegation of
ill-treatment but the court, although it clearer stated to the jurors that
if they found the author had been beaten by the police prior to giving his
confession they could not attach any weight to that statement and would
need to acquit him, did not instruct them that they would need to be
convinced that the prosecution had managed to prove that the confession was
voluntary. Following its previous jurisprudence, the Committee also found a
violation of article 6, since the death penalty was passed without having
observed the requirement of a fair trial set out in article 14.
Case No. 931/2000: Hudayberganova v. Uzbekistan
The author claimed that, in violation of her rights under articles 18 and
19 of the Covenant, she was excluded from University because she wore a
headscarf for religious reasons and refused to remove it. The State party
argued that she was expelled due to her "rough immoral attitude toward a
teacher and infringement of the internal regulations (of the University)".
The Committee considered that freedom to manifest one's religion
encompasses the right to wear clothes or attire in public. It recalled,
however, that this freedom is not absolute and may be subject to
limitations, which are prescribed by law and are necessary to protect
public safety, order, health, or morals, or the fundamental rights and
freedoms of others (article 18, paragraph 3, of the Covenant).
In the present case, the Committee found that the author's exclusion was
based on the provisions of the Institute's Internal regulations, and the
State party has not invoked any specific ground for which the restriction
imposed on the author would in its view be necessary in the meaning of
article 18, paragraph 3. "In the particular circumstances of the case, and
without either prejudging the right of a State party to limit expressions
of religion and belief in the context of article 18 of the Covenant and
duly taking into account the specifics of the context, or prejudging the
right of academic institutions to adopt specific regulations relating to
their own functioning", the Committee concluded, in the absence of any
justification provided by the State party, that there has been a violation
of article 18, paragraph 2 of the Covenant.
Case No 1101/2002: Alba Cabriada v. Spain
The author was sentenced for an offence against public health for his
involvement in drug trafficking. He alleged that, under the Spanish
Criminal Prosecution Act, cases involving individuals accused of the most
serious crimes can be appealed only on very limited grounds and the appeal
courts cannot reappraise the evidence. His case falling within such
category of crimes, he claimed to be a victim of a violation by Spain of
article 14, paragraph 5 of the Covenant, which protects the right of those
convicted of a crime to have their conviction and sentence reviewed by a
higher tribunal.
The Committee found that the review of the appeal court, which is limited
to an examination as to whether the findings of the trial court amount to
arbitrariness or a denial of justice, was not in accordance with the
requirements of article 14, paragraph 5 of the Covenant. It therefore
concluded that the author's conviction should be reviewed and that Spain
was under an obligation to take the necessary measures to ensure that
similar violations did not occur in future.
Case No. 1110/2002: Pagayawon Rolando v. Philippines
The author claimed that he was sentenced to death for the rape of a minor
after various alleged irregularities prior to and during the trial, and
that his right to life (article 6) was denied due to the mandatory
imposition of the death penalty upon him.
Tjr Committee found inter alia, a violation of article 6, paragraph 1,
recalling its previous jurisprudence, that the automatic and mandatory
imposition of the death penalty constitutes an arbitrary deprivation of the
life, in circumstances where the death penalty was imposed without any
possibility of taking into account the defendant's personal circumstances
or the circumstances of the particular offence.
Case No. 1155/2003: Leirvåg et al. v. Norway
The authors, Norwegian parents and their children, contested the
introduction of a mandatory religious subject in the Norwegian school
system, entitled "Christian Knowledge and Religious and Ethical Education"
(CKREE), with a possibility of partial exemption. They claimed that the
compulsory instruction of CKREE violated their freedom of thought,
conscience and religion under article 18 of the Covenant, in particular the
right of parents to secure the religious and moral education of their
children in conformity with their own convictions. They also claimed that
the partial exemption system violated their right to privacy under article
17 and was discriminatory.
The Committee concluded that the present framework of CKREE, including the
current regime of exemptions, as it had been implemented in respect of the
authors, constituted a violation of article 18, paragraph 4 of the Covenant.
Case No. 1222/2003: Byahuranga v. Denmark
The author, a Ugandan national legally resided in Denmark since 1984, with
his wife, a Tanzanian national, who has acquired Danish citizenship. They
have two children who were both born in Denmark. In 2002, the author was
convicted of several drug offenses and sentenced to a prison term. At the
same time, the court ordered his expulsion from Denmark on the basis that
he would risk no harm upon return to Uganda.
The author claimed that his expulsion would expose him to a real and
immediate risk of being subjected to treatment contrary to article 7 upon
return to Uganda, where he would be persecuted as a former officer under
Idi Amin and a political opponent of Ugandan President Museveni, whom he
had publicly criticized at several conferences in Denmark. He further
claimed that his expulsion would constitute an arbitrary interference with
his right under article 17 to family life, since his wife and children
could not leave their home in Denmark to follow him, as well as a violation
of the State party's duty under article 23, paragraph 1, to respect and
protect the family.
The Committee found a violation of article 7, considering that the author
had made out a prima facie case of his risk of being subjected to
ill-treatment in Uganda. However, the Committee found no violation of
articles 17 and 23, paragraph 1It noted that the author's expulsion was
based on Section 22 of the Danish Aliens Act and that the State party had
advanced significant reasons to justify the interference with his rights.
Committee against Torture
Case No. 133/1999: Falcon Ríos v. Canada
The complainant, a Mexican national, applied for refugee status in Canada
in 1997, on the basis that Mexican soldiers had severely tortured him, his
parents and his older sister, to extract information about his uncle, a
former army member, whom they suspected of having links with the Zapatista
separatist movement. His refugee claim was rejected by the Canadian
authorities.
The complainant claimed that his forcible return to Mexico would expose him
to a risk of being subjected to torture, in violation of article 3 of the
Convention. He submitted medical reports, confirming scars on his body and
psychological trauma.
The Committee declared the case admissible, insofar as it raised issues
under article 3, despite the State party's objection that the complainant
had failed to exhaust domestic remedies, as he had neither applied for
approval or judicial review by the Federal Court of the Minister's refusal
to grant him refugee status on humanitarian grounds, nor for a pre-removal
risk assessment prior to his expulsion. The Committee recalled that,
although an application for humanitarian status is a legal remedy, such
status is granted by the Minister on purely humanitarian criteria, and is
thus ex gratia in nature. It concluded that this remedy need not be
exhausted to satisfy the requirement of exhaustion of domestic remedies and
that the question of an appeal against the ministerial decision did not
therefore arise. An application for pre-removal risk assessment could only
have been based on fresh evidence and was therefore not an effective remedy
in the complainant's case. The Committee found a violation of article 3,
based on the medical evidence submitted by the complainant and because the
scars on his body increased the likelihood that he would again be arrested
and tortured as a suspected supporter of the Zapatistas upon return to Mexico.
Case No 207/2002: Dragan Dimitrijevic v. Serbia and Montenegro
This case involved a Serbian citizen of Romani origin claiming that, in
October 1999, he had been arrested by the police in Kragujevac, Serbia, and
brutally beaten for several hours to make him confess his participation in
a crime. Some time after being released without charges he filed a criminal
complaint with the Municipal Public Prosecutor. Since he received no
response he wrote again to the Public Prosecutor six months later but to no
avail. When he submitted his case to the Committee almost two years after
his arrest, no investigation had been carried out.
The Committee examined the case in the absence of State party's
observations despite reminders and concluded that the facts, as described
by the complainant, constituted torture. It also concluded that Serbia and
Montenegro had violated articles 12, 13 and 14 of the Convention because
the case had not been promptly and impartially investigated by the domestic
authorities and the complainant had been deprived of his right to seek
compensation. The Committee urged the State to conduct a proper
investigation into the complainant's allegations and to inform it of the
steps taken in that regard.
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