Centre for Civil and Political Rights
Human Rights Committee Case-Law Digest

Decisions adopted during
October 2012 session (106th)
Issue No. 5
April 2013
Contents:
Editorial
The Centre for Civil and Political Rights is very pleased to issue this newsletter on the Individual Communications considered by the Human Rights Committee at its 106th session, held in October 2012. The full text of the Human Rights Committee's decisions are available from the cases database on the Centre's website or see the list of decisions by session.  

The Centre has prepared summaries on five of the cases considered at this session which present particularly interesting features:

Naidenova et al. v. Bulgaria links Article 17 of the ICCPR to the right to adequate housing under the International Covenant on Economic, Social, and Cultural Rights. Read more...

In Thuraisamy v. Canada the Committee criticises the Canadian asylum system and finds that returning a Tamil to Sri Lanka would violate his rights under Art. 7. Read more...

In Singh v. France the Committee considers the application of the national law prohibiting students in state-run schools from wearing conspicuous religious symbols as applied to a Sikh. Read more...

Fedotova v. Russian Federation, considers the limitation of freedom of expression in order to protect public morals in relation to the promotion of tolerance for homosexuality. Read more...  
Finally, in  Kholodova v. Russian Federation the Committee found that the use of a military tribunal to try military officers accused of killing the authors son violated her right to a remedy. Read more...

A regrettable feature of several of the cases considered at this session is the failure of the State party to cooperate. This can be seen in the responses of Algeria, Libya and Belarus. Read more...   

 

Read more of the CCPR-Centre's analysis of the Committee's jurisprudence on our website.  

 

Human Rights Committee Case Law - 106th Session (October 2012)
AlgeriaMezine v. Algeria - CCPR/C/106/D/1779/2008  
Full text of decision - A | E | F | S
 
Article 2 3 - Right to a remedy. (In conjunction with Articles 6 1, 7, 9, 10 1, 16 and 17) Failure of the State to investigate the alleged violations, despite efforts by the victim's family. The Charter on Peace and National Reconciliation prevents the initiation of legal proceedings, on pain of imprisonment. VIOLATION
Article 6 1 - Right to life.
Enforced disappearance placed the victim outside the protection of the law and put his life in substantial and ongoing danger for which the State is responsible. Failure of the State to demonstrate that it had fulfilled its obligation to protect the victim's life. VIOLATION
Article 7 - Torture, ill-treatment.
With respect to the victim: Indefinite detention without contact with the outside world. With respect to the victim's brother (the author): (Alone and in conjunction with Article 2 3) distress caused to the author by his brother's enforced disappearance. VIOLATION
Article 9 - Arbitrary detention.
Arrest without a warrant or notification of the reasons for arrest. Failure to bring the victim before a judicial authority which would enable him to challenge the legality of his detention. Failure to inform the family of the detainee's whereabouts or fate. VIOLATION
Article 10 1 - Conditions of detention.
Incommunicado detention. VIOLATION
Article 16 - Legal personality.
Enforced disappearance amounting to a deliberate removal from the protection of the law while the efforts of relatives to access remedies have been impeded. VIOLATION
Article 17 1 - Right to privacy.
Entry of law enforcement personnel into the house in the middle of the night without a warrant. VIOLATION
  
AustriaWeiss v. Austria - CCPR/C/106/D/1821/2008  
Full text of decision - E | F | S 
 
Article 7 - Torture, ill-treatment. Extradition to the USA where the author faced a real risk of life imprisonment without the prospect of parole for a property crime. NO VIOLATION
 
BelarusKatsora v. Belarus - CCPR/C/106/D/1836/2008
Full text of decision - E | F | R | S

 

Article 19 - Freedom of expression. Restriction of freedom of expression in relation to the distribution of leaflets advertising a meeting before it was authorised - the restriction was not shown to be necessary for a legitimate purpose under Art. 19 3. VIOLATION

Article 21 - Freedom of assembly. In light of the finding on Art. 19 the Committee decided not to examine separately the claim under Art. 21. 

KovalevaKovaleva & Kozyar v. Belarus - CCPR/C/106/D/2120/2011
Full text of decision - E | R | S

Article 6 - Right to life. Imposition of the death penalty after a trial not in compliance with the guarantees in Article 14. VIOLATION
Article 7 - Torture, ill-treatment.
With respect to the victim: Use of physical and psychological pressure to elicit a confession of guilt which served as the basis for conviction. Failure to investigate allegations of ill-treatment. With respect to the victim's mother and sister (the authors): failure to notify family of the date of execution and place of burial, and refusal to hand over the body for burial in accordance with their religious beliefs and practices, which have the effect of intimidating or punishing the family by intentionally leaving them in a state of uncertainty and mental distress. VIOLATION
Article 9 3 - Arbitrary detention.
Five month delay between arrest and first being brought before a judge. VIOLATION
Article 14 1 - Fair trial.
Violations of article 14 2, 14 3(b) and (g) and 14 5 demonstrate the irregularities in the trial, amounting overall to a violation of the guarantee of a fair trial in Article 14 1. VIOLATION
Article 14 2 - Presumption of innocence.
Public statements by State officials and the mass media about the victim's guilt before the conclusion of the trial. Holding the victim in a metal cage during the trial and publication of photos of him behind bars. VIOLATION
Article 14 3(b) - Preparation of defence.
Limited access to lawyer during pre-trial period, denial of access by lawyer, confidentiality of meetings with lawyer not respected. VIOLATION
Article 14 3(g) - Self-incrimination.
Use of physical and psychological pressure to elicit a confession of guilt which served as the basis for conviction despite a retraction during the court proceedings. VIOLATION
Article 14 5 -  Right to appeal.
Death sentence passed by Supreme Court acting as court of first instance with only supervisory review or discretionary pardon available. VIOLATION
Article 18 - Freedom of thought, conscience and religion.
In light of the finding of a violation of Art. 7 with respect to the authors, the Committee decided not to consider separately the claim of a violation of Art. 18.

OP Article 1 - Consideration of communications.
State party's refusal to recognise competence of the Committee to register communications which it considers inadmissible. VIOLATION  
Pivonos v. Belarus - CCPR/C/106/D/1830/2008
Full text of decision - E | F | R | S   

 

Article 19 - Freedom of expression. Unjustified restriction of freedom to impart information by fining the author for an attempt to present an acquaintance with a gift on the street. VIOLATION
Article 21 - Freedom of assembly. In light of the finding on Art. 19, the Committee decided not to examine separately the claim under Art. 21.  
BulgariaNaidenova et al. v. Bulgaria - CCPR/C/106/D/2073/2011    
Full text of decision - E | F | R | S 
Summary 

  

Article 17 - Right to privacy. Proposed eviction of the authors from their homes in an informal settlement on municipal land, despite long tenure, lack of alternative housing and no necessity for the eviction. VIOLATION 

CanadaThuraisamy v. Canada - CCPR/C/106/D/1912/2009     
Full text of decision - E  
Summary 

    

Article 7 - Refoulement to face torture/ill-treatment. Proposed return of the author, an ethnic Tamil, to Sri Lanka. Failure to adequately consider his claim of risk of torture/ill-treatment. VIOLATION

Article 9 - Arbitrary detention. Considered admissible because of the indissoluble link with the potential violation of Art. 7, but not considered separately on the merits.  

FranceSingh v. France - CCPR/C/106/D/1852/2008     
Full text of decision - E | F 
Summary 

  

Article 18 - Freedom of thought, conscience and religion. Expulsion of the author, a Sikh, from his school for wearing a keski (a small light piece of material in a dark colour used to cover his uncut hair instead of a turban) was unnecessary and infringed his right to manifest his religion. VIOLATION

Article 26 - Equality before the law. In light of the finding on Article 18, the Committee did not examine the claim of a violation under Article 26. 

LibyaBenali v. Libya - CCPR/C/105/D/1805/2008
Full text of decision - A | E | F | S 

  

Article 2 3 - Effective Remedy. (In conjunction with Art. 61, Art. 7, Art. 9, Art. 10 1 and Art. 16) With respect to both the victim and the author: Lack of access to an effective remedy for the violations identified. VIOLATION 

Article 6 1 - Right to life. Enforced disappearance and secret incommunicado detention placed the victim outside the protection of the law and put his life in substantial and ongoing danger for which the State is responsible. Failure of the State to demonstrate that it had fulfilled its obligation to protect the victim's life. VIOLATION  

Article 7 - Torture, ill-treatment. With respect to the victim: Incommunicado detention and ill-treatment in detention. With respect to the victim's brother (the author): Suffering of relatives as a result of enforced disappearance and incommunicado detention. VIOLATION 

Article 9 - Arbitrary detention. Arrest without a warrant, incommunicado detention without access to a defence lawyer, not informed of reasons for arrest or brought before a judicial authority. VIOLATION 

Article 10 1 - Conditions of detention. Inhumane conditions of detention. VIOLATION   

Article 16 - Legal personality. Enforced disappearance and incommunicado detention in circumstances in which relatives were intimidated and prevented from accessing remedies with the effect of removing the victim from the protection of the law. VIOLATION 

Khwildy v. Libya - CCPR/C/105/D/1804/2008
Full text of decision - A | E | F | S 

  

Article 2 3 - Effective remedy. (In conjunction with articles 6, 7, 9 1-4, 10 1, 14 1, 14 3(b) and (c) and 16) With respect to both the victim and the author: No access to an effective remedy for the violation of other rights. Failure of the State to investigate violations. VIOLATION 

Article 6 1 - Right to life. Enforced disappearance and secret incommunicado detention placed the victim outside the protection of the law and put his life in substantial and ongoing danger for which the State is responsible. Failure of the State to demonstrate that it had fulfilled its obligation to protect the victim's life. VIOLATION

Article 7 - Torture, ill-treatment. With respect to the victim: Enforced disappearance and incommunicado detention. Torture while in detention. With respect to the victim's brother (the author): Suffering of relatives as a result of the victim's enforced disappearance and incommunicado detention. VIOLATION 

Article 9 - Arbitrary detention. Arrest without a warrant and without informing the detainee of the grounds for his arrest. Incommunicado detention without access to a lawyer or being brought before a judge. No opportunity to challenge the legality of detention. VIOLATION 

Article 10 1 - Conditions of detention. Ill-treatment in detention. No information from the State on the conditions in detention. VIOLATION  

Article 14 1, 3(b) and 3(c) - Fair trial. Court proceedings were held in secret and could not be attended even by close family. The trial was carried out by a special tribunal. The victim was not able to meet with his assigned lawyer outside the courtroom. The victim was not sentenced until 22 months after his second arrest. VIOLATION    

Article 16 - Legal personality.  Enforced disappearance and incommunicado detention in circumstances while relatives were systematically impeded from accessing remedies with the effect of removing the victim from the protection of the law. VIOLATION  

RoKKim et al. v. Republic of Korea - CCPR/C/105/D/1786/2008
Full text of decision - E | F | S  

  

Article 18 1 - Freedom of thought, conscience and religion. Conviction and imprisonment of Jehovah's Witnesses for refusal to perform compulsory military service. VIOLATION  

RussiaFedotova v. Russian Federation - CCPR/C/105/D/1932/2010  
Full text of decision - E | F | R | S 

Summary

Article 19 2 - Freedom of expression.  (In conjunction with Art. 26) unreasonable restriction of the author's freedom of expression by penalising her for displaying posters promoting tolerance of homosexuality. Restriction not justified as necessary for one of the purposes listed in 19 3. VIOLATION    

KholodovaKholodova v. Russian Federation - CCPR/C/105/D/1548/2007  
Full text of decision - E | F | S

Summary

Article 2 3 - Effective remedy. (in conjunction with Art. 6 1)Trial of military officers accused of killing the author's son (a journalist) in a military court compromised the author's right to reparation. VIOLATION   
Article 6 1 - Right to life. Insufficient evidence to reach the conclusion that the State authorities were responsible for the death of the author's son.

Article 14 1 - Fair trial. Delays in the trials were not unreasonable or the result of unjustified prolongation of proceedings by the authorities. Other aspects not considered in light of the decision on Art. 2 3.

Article 19 - Freedom of expression. Insufficient evidence to conclude that the State authorities were responsible for the death of the author's son in order to prevent him working as a journalist.       
UkraineBulgakov v. Ukraine - CCPR/C/106/D/1803/2008  
Full text of decision - E | F | R | S


Article 17 - Right to privacy.
Changing of the author's name and patronymic in order to comply with Ukrainian naming tradition. VIOLATION
Article 26 - Equality before the law.
In light of the finding on Art. 17, the Committee did not examine the claim of a violation under Art. 26.
Article 27 - Minority rights.
In light of the finding on Art. 17, the Committee did not examine the claim of a violation under Art. 27.

VenezuelaEligio Cedeno v. Bolivarian Republic of Venezuela - CCPR/C/106/D/1940/2010  
Full text of decision - E | F | S


Article 9 - Arbitrary Detention. Pre-trial detention of the author without sufficient grounds and extention of pre-trial detention after the expiry of the maximum period of detention (2 years) without a basis in law. Delay of four months between the expiry of the initial pre-trial detention and the continuation order, during which the author was not released. VIOLATION
Article 14 1 - Independence of the Judiciary.
Provisional nature of the judges in the author's case, which means that they may be dismissed without a defined procedure. Arrest of the judge who ordered his release from pre-trial detention on the basis of an opinion of the Working Group on Arbitrary Detention and public statements indicating a link with the wishes of the executive. VIOLATION
Article 14 2 - Presumption of innocence.
Public references to the author's case by the President of the Republic, referring to him as a bandit and implying that his release from pre-trial detention had been illegally coordinated by the lawyers and judge involved. VIOLATION
Article 14 3(c) - Trial without undue delay. Unreasonable delays in the proceedings, including due to the absence of prosecution and an 18 month delay before the Supreme Court considered the author's application for cognisance, not attributable to the author or the complexity of the case. VIOLATION

inadmissibleInadmissible cases:
S.K. v. Belarus - CCPR/C/106/D/2169/2012   
Full text of decision - E | F | R | S  
M.B. v. Czech Republic - CCPR/C/106/D/1849/2008   
Full text of decision - E     
J.A.B.G. v. Spain - CCPR/C/106/D/1891/2009
Full text of decision - E | F | S  
J.J.U.B. v. Spain - CCPR/C/106/D/1892/2009
Full text of decision - E | F | S 
M.N. et al. v. Tajikistan - CCPR/C/106/D/1500/2006
Full text of decision - E | R