Centre For Civil and Political Rights (CCPR)
Human Rights Committee Case-Law Digest
Decisions adopted during
July 2011 session (102nd)
Issue No. 1
December 2011
Human Rights Committee 
Case-Law 

Editorial
 
We are very pleased about the launching of this new on-line publication, which addresses the important aspect of accessibility and publicity of the Committee's Views on individual communications. Dissemination of the Committee's Views, as soon as they become publicly available on the OHCHR's website, is crucial for the effective implementation of the Covenant. They provide useful guidance for the States parties on how to comply with the provisions of the Covenant in specific cases and the dissemination of Views ensures that national decisions take due consideration of this guidance.

 

The dissemination of the Committee's Views serves the additional purpose of increasing access to human rights decisions for all citizens as well as the legal community. By organising the latest case-law of the Committee in a reader-friendly way, listing the cases per country and highlighting the key violations, this publication will enable human rights advocates to monitor the implementation. They will also be able to use these Views in other cases raising similar violations, either in their proceedings at national level or, ultimately, by bringing new cases before the Human Rights Committee. Improved accessibility and publicity of the Committee's Views will finally increase the confidence of all citizens in this human rights protection system.  

 

The CCPR team


Featured case: Nystrom v. Australia 

UN finds Australia violated international law in landmark case on rights of non-citizens and protection of families 

By the Human Rights Law Centre

 

In a landmark decision, the United Nations Human Rights Committee has held that Australia violated the human rights of a permanent resident, and breached its international legal obligations, by cancelling his visa and deporting him to Sweden. Stefan Nystrom was deported from Australia after the government cancelled his visa on the grounds of his criminal record. Mr Nystrom was born in Sweden but arrived in Australia aged 27 days. Until his deportation at the age of 32, he had never left the country.

The Committee held that the deportation of Mr Nystrom ("an absorbed member of the Australian community" whose mother, sister and nuclear family all live in Australia) to Sweden (a country where he does not speak the language and "to which he has no ties apart from nationality" in the formal sense) breached the International Covenant on Civil and Political Rights. By a majority of 13 to 2, the Committee found that Mr Nystrom's deportation was arbitrary and had "irreparable consequences". Before his deportation, Mr Nystrom was in a "in a process of rehabilitation". The Committee also found that Mr Nystrom's deportation "led to a complete disruption of his family ties" in breach of Australia's obligation to protect families.

By a majority of 10 to 5, the Committee also held that Australia arbitrarily deprived Mr Nystrom of "his right to enter his own country". This is the first time that an international court or tribunal has found that the right of a person to freely enter his or her "own country" applies not just to citizens but also to non-nationals with "special ties" to that country. According to leading international jurist Elizabeth Evatt AC, a former Australian judge and herself an ex-member of the Human Rights Committee, "This decision is highly significant. It establishes that in certain circumstances a person may be able to claim protection against arbitrary deportation by a state even though not a citizen of that state. Under the ruling, the right to protection may arise as a result of long-standing and strong personal and family ties to that country, together with the absence of such ties elsewhere."

The expert body also recommended that the government review the operation of the Migration Act to ensure that Australia does not expose other persons to similar human rights violations.   


Human Rights Committee
Case-Law 
ArgentinaL.N.P. v. Argentina - CCPR/C/102/D/1610/2007  
Full text of decision - S | ESummary (in Spanish)

 

Article 26 and Article 24. Equality before the law and protection of the child. Inappropriate handling of a rape case by police, medical and judicial authorities where the victim was a 15-year-old girl belonging to an ethnic minority - Violation  
Article 141. Fair hearing. No information to the victim of her right to become party in the proceedings, and lack of interpretation in indigenous language - Violation 
Article 7. Ill-treatment. Inappropriate handling of the rape case by police, medical and judicial authorities, re-victimising the victim -Violation
Article 17. Privacy. Irrelevant inquiries about the moral and sexual life of the juvenile victim - Violation
Article 23. Effective remedy. Impossibility of appealing judicial decisions for legal protection - Violation
AustraliaNystrom, Nystrom & Turner v. Australia - CCPR/C/102/D/1557/2007
Full text of decision - E |F| Summary    

Article 91. Arbitrary detention
.
Remand in custody of a  permanent resident with large criminal record, pending deportation - No violation  
Article 124. Freedom of movement.
Deportation,
due to his criminal record, of a permanent resident with special ties to Australia, despite long lapse of time between the commission of crimes and the deportation - Violation 
Article 17 and 231. Privacy and protection of family. Deportation of a permanent resident, severing irreparably the person's family life in Australia -Violation  

BelarusPavel Levinov v. Belarus - CCPR/C/102/D/1812/2008 (no violation)
Full text of decision - E | R | Summary 

Article 141. Fair hearing
.
Complaints of procedural irregularities raised on appeal under a supervisory review procedure and dismissed - No violation.
Article 143b. Preparation of defence. Denial to designate a representative or a lawyer to an arrestee charged with an  administrative offence, who was represented by counsel during trial  - No violation.
CanadaWarsame v. Canada -  CCPR/C/102/D/1959/2010
Full text of decision - E | F | Summary

Article 61 and Article 7 - 
Right to life and ill-treatment: Deportation to Somalia of a Somali descent, with lack of family and clan support locally, and no local language skills - Violation.
Article 124 - Freedom of movement: Deportation of a permanent resident with special ties to Canada, rendering his return de facto impossible - Violation.
Article 17 and 231- Privacy and protection of family: Deportation of a permanent resident, severing irreparably the person's family life in Canada- Violation.
ColombiaBonilla Lerma v. Colombia -  CCPR/C/102/D/1611/2007
Full text of decision - S | E | Summary (in Spanish) 

Article 141- Fair hearing: Refusal by domestic courts to execute a judicial order for restitution due to the beneficiary's (erroneous) withdrawal from the proceedings - Violation
CzechRLange v. Czech Republic - CCPR/C/102/D/1586/2007
Full text of decision -
E| FSummary

Article 26 - Equality before the law: Domestic law requiring Czech citizenship for property restitution - Violation  
FranceSingh v. France - CCPR/C/102/D/1876/2009
Full text of decisionF| E | Summary
 
Article 18. Freedom of religion. Refusal to renew a residence permit to a person wearing a Sikh turban, because the law required the person to appear bearheaded in the picture -  Violation.
KyrgyzstanGunan v. Kyrgyzstan - CCPR/C/102/D/1545/2007
Full text of decision - E | RSummary

Article 7 and Article 14 3(g) - Ill-treatment and self-incrimination: Detailed allegations of ill-treatment to extract a confession during interrogations, not criminally investigated -Violation.
Article 143(b)(d) - Preparation and right to defence: Lack of legal assistance to an extradited suspect during interrogations, and no defence access to prosecution's submissions on appeal -Violation.
Article 141, 3(b) (d) (g) - Fair hearing and evaluation of evidence: Failure to properly evaluate the criminal casual link and the inconsistencies in witness testimonies  - Violation.
Article 62 and Article 141 - Death penalty and fair hearing: A death sentence without fair trial-Violation
Zhumbaeva v. Kyrgyzstan CCPR/C/102/D/1756/2008
Full text of decision - E | R | Summary

Article 61 - Right to life: 
Credible allegations of arbitrary deprivation of life while in custody, corroborated by forensic expertise, in the absence of credible rebutting arguments by the State - Violation
Article 7 - Ill-treatment: Credible allegations of injuries while in custody, corroborated by the official autopsy, in the absence of any inquiry or explanations by the State - Violation
Article 23 together with Articles 61 and 7 - Effective remedy, right to life, ill-treatmentAbsence of a proper investigation into the victim's death and allegations of torture while in custody, and lack of appropriate investigative and remedial measures - Violation
NetherlandsX.H.L. v. The Netherlands - CCPR/C/102/D/1564/2007
Full text of decision - ESummary

Article 7 and 24. Ill-treatment and protection of the child. Deportation to China of an unaccompanied 12-year-old child seeking asylum, without a thorough examination of the potential treatment he could be subjected to as a child, with no identified relatives and no identity card or citizen registration in China- Violation
RussiaZyuskin v. Russian Federation -  CCPR/C/102/D/1605/2007
Full text of decision - E | RSummary
 
Article 7 and 23. Ill-treatment and effective remedy. Detailed and reported allegations of ill-treatment while in custody, not criminally investigated - Violation
SpainCunillera Arias v. Spain - CCPR/C/102/D/1531/2006 (no violation)
Full text of decision - S | E | Summary (in Spanish)

Article 141 - Fair hearing: Obligation for a claimant in complex criminal proceedings to be represented by a lawyer - No violation.
UkraineShchetka v. Ukraine - CCPR/C/102/D/1535/2006
Full text of decision - R | ESummary

Article 7 and Article 14 3(g) - Ill-treatment and self-incrimination: Credible and timely reported allegations of ill-treatment to extract a confession during interrogations, in the absence of a thorough explanation from the State on the outcome of the investigation and the reasons for refusing examinations of the victim  - Violation
Article 143(e) - Access to witnesses
: Failure to justify refusal to examine key witnesses for the defence - Violation
Article 141 - Fair hearing: Failure to exclude inculpating evidence  - Violation.
Butovenko v. Ukraine - CCPR/C/102/D/1212/2005
Full text of decision - E | R | Summary

Article 7 and Article 14 3(g) - Ill-treatment and self-incrimination: Credible and timely reported allegations of ill-treatment  to extract a confession during interrogations, with no refuting evidence by the State - Violation.
Article 7 and Article 23 - Ill-treatment and effective remedy: Detailed and timely reported allegations of ill-treatment while in custody, with no criminal investigation opened and lack of refuting evidence by the State - Violation.
Article 91 - Arbitrary detention: Interrogation of a criminal suspect for three days in the absence of a lawyer and without being informed of his rights - Violation.
Article 101 - Conditions of detention: Detainee forced to sleep on the floor for 3 days without heating or glass in the windows in winter temperatures - Violation
Article 143(b)(d) - Preparation and right to defence: No access to a lawyer of his own choosing for 2 months and ineffectiveness of an imposed officially appointed lawyer - Violation
Article 141, 3(e) - Fair hearing and assessment of evidence: Failure to exclude inculpating evidence obtained under undue pressure - Violation.
Article 151 - Retroactivity of the law: Disregard to the lowest penalty available when, after the commission of the crime, the highest penalty imposed was declared unconstitutional (and replaced later by a lighter pealty) - No violation
UzbekistanKungurov v. Uzbekistan - CCPR/C/102/D/1478/2006
Full text of decision - ESummary

Article 221. Freedom of association. Refusal to register a human rights NGO unless it limited its human rights activities to undefined issues not covered by State organs and subject to completion of disproportionate technical requirements - Violation
Article 192. Freedom of expression.
Unjustified refusal to register a human rights NGO, preventing the author from lawfully engaging in human rights activities - Violation
inadmissibleInadmissible cases:

P.L. v. Belarus - CCPR/C/102/D/1814/2008 
Full text of decision - E | R | Summary
V.H. v. Czech Republic - CCPR/C/102/D/1546/2007
Full text of decision - E | R | Summary 
L.G.M. v. Spain - CCPR/C/102/D/1617/2007  
Full text of decision - S | ESummary (in Spanish)
L.D.L.P. v. Spain - CCPR/C/102/D/1622/2007
Full text of decision - S | ESummary (in Spanish)