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

Decisions adopted during
March 2013 session (107th)
Issue No. 6
August 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 107th session, held in March 2013. 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 four of the cases considered at this session which present particularly interesting features:

Prutina et al. v. Bosnia and Herzegovina relates to the investigation of enforced disappearances. Although it recognised the considerable efforts made by the State party, the Committee still found a violation of Art. 2 3 read in conjunction with Articles 6, 7, and 9. Two individual opinions argue that the Committee should have gone further, in particular by finding an independent violation of Article 7 because of the requirement that families have their disappeared relatives declared dead in order to obtain compensation.
 
Unlike the majority of decisions relating to freedom of expression in Belarus, Yasinovich and Shevchenko v. Belarus is not concerned with the granting of authorisation to carry out pickets or meetings, but with the fining of the authors for activities carried out on an authorised picket, specifically the collection of signatures on a petition relating to the recall of Parliamentary deputies.

 

Although the Committee did not find any violation of the ICCPR in the case of Bakurov v. Russian Federation, it features some interesting considerations in relation to the right to a jury trial, the question of whether different criminal procedures in different parts of a federal state can amount to discrimination, and whether the commutation of death sentence to life imprisonment involves the imposition of a harsher penalty in violation of Article 15.  

 

Finally, Achabal Puertas v. Spain concerns the author's ill-treatment in detention. However, the most interesting (and contentious) feature of the case is the Committee's finding that it was admissible, although the author had previously submitted her case to the European Court of Human Rights. Normally, Spain's reservation to the Optional Protocol would have precluded consideration of a case found inadmissible by the European Court of Human Rights, provided that the admissibility decision was not based on purely procedural grounds.     

 

Human Rights Committee Case Law - 107th Session (March 2013)
Mechani v Algeria - CCPR/C/107/D/1807/2008    
Full text of decision - E | F | S     
 
Article 2 3 - Right to a remedy. (In conjunction with Articles 7, 9, 10, 14 and 16 with respect to the victim and in conjunction with article 7 with respect to the author) Failure of the State to investigate the disappearance of Farid Mechani, despite efforts by the victim's family. Ordinance No. 06-01, implementing the Charter on Peace and National Reconciliation, prevents the initiation of legal proceedings, on pain of imprisonment. VIOLATION
Article 7 - Torture, ill-treatment.
With respect to the victim: Enforced disappearance and incommunicado detention. With respect to the victim's father (the author): Distress caused to the author by his son's 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 in detention.
Incommunicado detention. Lack of information from State party on treatment in detention. VIOLATION
Article  14 -
Trial of Farid Mechani in absentia, in a court of special jurisdiction made up of anonymous judges, without the accused ever being heard (having been held in incommunicado detention for the previous year) and with his lawyer unable to speak on his behalf as she had not been able to see her client, resulting in an inherently unfair trial. 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 systematically impeded. VIOLATION
Saadoun v. Algeria - CCPR/C/107/D/1806/2008    
Full text of decision -  E | F  
 
Article 2 3 - Right to a remedy. (In conjunction with Articles 7, 9, and 16 with respect to the victim; alone and in conjunction with article 7 with respect to the authors). Failure of the State to investigate the disappearance of Djamel Saadoun, despite efforts by his family. Ordinance No. 06-01, implementing the Charter on Peace and National Reconciliation, prevents the initiation of legal proceedings, on pain of imprisonment. VIOLATION
Article 7 - Torture, ill-treatment.
With respect to the victim: Enforced disappearance and incommunicado detention. With respect to the victim's parents and sister (the authors): Distress caused by Djamel Saadoun's disappearance. VIOLATION
Article 9 - Arbitrary detention. 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 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 systematically impeded. VIOLATION
AlgeriaSahbi v. Algeria - CCPR/C/107/D/1791/2008    
Full text of decision - E | F | S 
 
Article 2 3 - Right to a remedy. (In conjunction with Articles 6 1, 7, 9, 10 1, 16 and 17 with respect to the victim and in conjunction with Articles 7 and 17 with respect to the author) Failure of the State to investigate the disappearance of Djaafar Sahbi, despite efforts by the victim's family. Ordinance No. 06-01, implementing 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 Djaafar Sahbi 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 mother (the author): Distress caused by her son's enforced disappearance. VIOLATION
Article 9 - Arbitrary detention.
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, despite an official declaration that Djaafar Sahbi's disappearance occurred in the context of the 'national tragedy'. VIOLATION
Article 10 1 - Conditions in detention.
Secret detention. Lack of information from State party on treatment in detention. VIOLATION
Article 16 - Legal personality.
Enforced disappearance amounting to a deliberate removal of the victim from the protection of the law while the efforts of relatives to access remedies have been impeded. VIOLATION
Article 17 - Right to privacy.
Entry of law enforcement personnel into the house in the absence of the occupants and seizure of personal documents amounting to illegal interference with the victims home. VIOLATION
AustraliaLin v. Australia - CCPR/C/107/D/1957/2010   
Full text of decision - C | E | F | S 
 
Article 7 - Torture, ill-treatment. Return of an alleged Falun Gong practitioner to China. State party's examination of the refugee claims established that the author's practice was private and limited and he had been able to leave the country unhindered. There was, therefore, no real risk of harm if he were returned. The author's health problems were not such as to give rise to a non-refoulement obligation under article 7. NO VIOLATION
Article 9 - Arbitrary detention.
Risk of arbitrary detention if the author were returned to China. No violation for the same reasons. NO VIOLATION
BelarusKovsh (Abramova) v. Belarus - CCPR/C/107/D/1787/2008    
Full text of decision -  E | F 
 
Article 9 3 - Rights of detainees. Detention in a temporary detention ward of the Directorate of Internal Affairs for 61 and 72 hours without being brought before a judge without specific justification for the delay. Judicial control of detention cannot be made to depend on an application from the detainee. VIOLATION
Olechkevitch v. Belarus - CCPR/C/107/D/1785/2008
Full text of decision - E | F | R | S

 

Article 19 2 - Freedom of expression. Unjustified restriction of freedom of expression due to the imposition of a fine for distributing leaflets relating to a meeting that had not been authorised. VIOLATION  
YasinovichYasinovich & Shevchenko v. Belarus - CCPR/C/107/D/1835 & 1837/2008
Full text of decision - E | F | R | S
Summary 

Article 19 2 - Freedom of expression. Unjustified restriction of the authors' freedom of expression due to the imposition of a fine for collecting signatures calling for the recall of an elected deputy. VIOLATION
BiHPrutina, Zlatarac, Kozica and Čekič v. Bosnia and Herzegovina - CCPR/C/107/D/1917/2009, 1918/2009, 1925/2009, 1953/2010
Full text of decision - E | F | S   
Summary  

  

Article 2 3 - Right to a remedy. Obligation to investigate enforced disappearances and bring the perpetrators to justice is an obligation of means, not of result. Substantial efforts have been made by the State in general and in relation to this specific case to investigate and provide effective remedies. NO VIOLATION
(In conjunction with Articles 6, 7 and 9) Failure to promptly inform families of the progress of investigations into enforced disappearances. Requirement that families of disappeared persons must have the disappeared member of the family declared dead in order to be eligible for compensation, despite ongoing investigations. VIOLATION
Article 24 1 - Rights of the child. With regard to two of the authors Samir Čeki  and Alma Čardaković: Failure to take into account the status of  Samir Čeki  and Alma Čardaković as minors and offer them special protection on that basis. VIOLATION    
LibyaAbushaala v. Libya - CCPR/C/107/D/1913/2009     
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, and 16 with respect to the victim and in conjunction with article 7 with respect to the author) Failure to investigate the disappearance of Abdelmotaleb Abushaala, despite the efforts of his family to report the disappearance and initiate proceedings. 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: Incommunicado detention since 1995. With respect to the victim's brother (the author) and his parents: Suffering of relatives as a result of 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. Failure to inform the detainee of charges against him and to bring him before a judicial authority through which he might have challenged the legality of his detention. Failure to inform the detainees family of his place of detention and fate. VIOLATION 

Article 10 1 - Conditions in detention. Incommunicado detention. Absence on information from the State on his conditions of detention. VIOLATION 

Article 16 - Legal personality. Enforced disappearance amounting to a deliberate removal of the victim from the protection of the law while the efforts of relatives to access remedies have been impeded. VIOLATION 

RussiaBakurov v. Russian Federation - CCPR/C/107/D/1861/2009  
Full text of decision -
E | F | R | S
Summary

Article 6 - Right to life. Not examined separately as the authors death sentence was commuted to life imprisonment.   

Article 14 1 - Fair trial. Trial in a capital case by a professional judge and two lay judges as at the time jury trial had not been established in the region. No violation because the tribunal was legally constituted at the time of the trial. NO VIOLATION 

Article 15 1 - Non-retroactivity of laws. The change of the author's sentence to life imprisonment rather than the death penalty is not considered to constitute a heavier penalty. NO VIOLATION  

Article 26 - Equality before the law. Differences among federal units with respect to the use/conduct of jury trials are not in themselves discriminatory. Lack of evidence of discriminatory outcome. NO VIOLATION    

SpainAchabal Puertas v. Spain - CCPR/C/107/D/1945/2010       
Full text of decision - E | F | S 
Summary 

  

Article 7 - Torture, ill-treatment. (Alone and in conjunction with Article 2 3) Failure to thoroughly investigate the author's allegations of torture, due to the decision to close the investigation at the examination stage rather than proceeding to oral hearings, despite the severity of the author's illness, the reports of the doctors who treated her, the difficulties inherent in proving torture or ill-treatment when these do not leave physical marks, and the fact that the alleged torture took place while the author was in incommunicado detention, all of which should have lead to a more exhaustive investigation. VIOLATION
InadmissibleInadmissible cases:

K.S. v. Australia - CCPR/C/107/D/1921/2009  
Full text of decision - E | F | S
 
D.T.T. v. Colombia - CCPR/C/107/D/1904/2009    
 
Full text of decision -  E | F | S 
T.J. v. Lithuania - CCPR/C/107/D/1904/2009  
Full text of decision - 
E | F | S 
A.P. v. Russian Federation- CCPR/C/107/D/1857/2008 
Full text of decisionE | F | R | S  
B.W.M.Z v. The Netherlands - CCPR/C/107/D/1788/2008 
Full text of decisionE | F | S   
X v. The Netherlands - CCPR/C/107/D/1886/2009
Full text of decision -  E | F | S