HUMAN RIGHTS COMMITTEE RULES ON COMPLAINTS OF VIOLATIONS FROM INDIVIDUALS

13 May 2003




An independent expert body has found violations of the International Covenant on Civil and Political Rights in five countries.

The Human Rights Committee, the panel that monitors how countries implement the Covenant, issued its findings after examining cases brought by the individuals alleging breaches. The cases – against Austria, Belarus, Lithuania, the Philippines and Trinidad and Tobago -- were decided during the Committee’s last session in Geneva, held from 17 March to 4 April 2003.

The Committee considered a total of 27 complaints. Of the eight cases examined on the merits, two were found to reveal no violations. Eleven complaints were declared inadmissible and two admissible; the panel discontinued examination of six others.

Of 150 States parties to the Covenant, 104 have recognized the competence of the Committee to examine complaints by individuals under their jurisdiction about human rights violations. The procedure is provided for in the First Optional Protocol to the Covenant.


Summary of Cases

The communications summarized below are considered particularly interesting in terms of jurisprudence and because they develop the Committee’s case law under a number of substantive provisions of the Covenant. They concern a breach of the Optional Protocol due to non respect of a request for interim measures of protection, combined with a breach of the right of equal access to court (Weiss v. Austria); age limitations to exert the occupation of civil aviation pilot (Love and al. v. Australia), and family rights (Sahid v. New Zealand). Three communications are related to capital punishment, and concern in particular, the right of a family to be aware of the location of a relative who was executed (Bondarenko v. Belarus, Lyashkevich v. Belarus), and also the mandatory and quasi–automatic imposition of the death penalty (Carpo v. The Philippines). Finally, the Committee examined the effectiveness of extraordinary supervisory proceedings (Gelasauskas v. Lithuania). (For the full decisions, please go to Internet address http://www.unhchr.ch/tbs/doc.nsf, select CCPR – Human Rights Committee, and then click on jurisprudence.)


Case No 1086/2002: Weiss v Austria

In this case, the author escaped, immediately prior to the jury verdict and sentencing, from his trial on numerous fraud charges in a United States court. His conviction and subsequent sentence effectively to imprisonment until natural death were thus pronounced in his absence. Subsequently, the author was arrested in Austria on an extradition warrant issued by the United States authorities.

The author contested the extradition proceedings in Austria on a variety of grounds, including that his fair trial and appeal rights in the United States had been violated and that the length of his sentence amounted to cruel, inhuman or degrading punishment. A variety of Austrian courts (including after a successful appeal by the public prosecutor) ultimately concluded that such issues should be considered only by the Minister of Justice in deciding whether to proceed with an extradition. The Minister so directed, and, after both the State party’s administrative court and the Human Rights Committee had directed that the extradition be stayed as an interim measure, the author was extradited.

The Committee first applied the approach to its requests for interim measures in the context of death penalty cases and decided that equally in circumstances such as the present, a failure to honour a request for interim measures amounted to a breach of a State party’s obligations under the Optional Protocol. It further decided that the public prosecutor’s ability to appeal the adverse judgment of a particular court, which the author was not able to do, coupled with the extradition in breach of a domestic court order, gave rise to a violation of the right to equality before the courts guaranteed in article 14, paragraph 1. As proceedings giving rise to re-sentencing and appeal are still pending in the United States, the Committee did not consider claims concerning events in that jurisdiction to be ripe for decision.


Case No 983/2001: Love v Australia

In this case, a number of airline pilots engaged by a State-owned company had been required to retire having reached a mandatory retirement age of 60 years of age. This policy was aimed at maximizing flight safety, and at the time was a practice enjoying national and international support. Subsequently, such discrimination was made unlawful in the State party, however the authors, not enjoying the fruits of these developments, petitioned the Committee in respect of their own cases, arguing essentially a breach of their right under article 26 to be free from discrimination on the basis of age.

The Committee considered the claim of one pilot only was admissible, the remainder having been dismissed before the Optional Protocol entered into force for the State party. The Committee considered that “age” in principle was covered by the protection against discrimination provided in article 26, and accordingly a distinction had to be justified on reasonable and objective grounds. In the Committee’s view, the authors had not shown that, at the time of the dismissals, the mandatory retirement regime, which was aimed at enhancing flight safety, was not based on such grounds. As a result, the Committee did not need to consider whether or not the State party was directly responsible for the airline’s actions.


Case No 893/1999: Sahid v New Zealand

In this case, a grandfather who had visited his daughter and grandson residing in the State party, did not return to his wife and family in Fiji, but remained unlawfully in the State party. Shortly thereafter, the authorities sought to remove him, and the author contested this decision before numerous courts and authorities over a period of many years before he was eventually removed to Fiji. The author’s essential claim was that the removal amount to a failure of the State party to protect the family unit and the grandson, contrary to articles 23 and 24 respectively.

In the absence of authorization from the author’s daughter to bring claims on behalf of herself or the grandson, the Committee restricted itself to the author’s own claim. In a previous decision, it had recognized that the provisions of the Covenant concerning family life could be violated in exceptional circumstances (Winata v Australia). In this case, observing that the grandson remained with his mother and her husband, the Committee found no such exceptional factors to exist and accordingly the removal was not contrary to the Covenant.


Cases No 886/1999 and 887/1999: Bondarenko v. Belarus, Lyashkevich v. Belarus

In these two communications, the sons of the authors (respectively their mothers) were found guilty of murder, sentenced to death, and executed before the formal registration of their cases by the Committee, and before requests for interim measures of protection were addressed to the State party. The authors alleged that the executions by firing squad took place in secret, and no information was provided to the families on either the time of execution, or on the location of the burial site of their sons.

The Committee recalled its jurisprudence on the breach by a State party of its obligations under the Optional Protocol in case of non respect of a request for interim measures of protection (Piandiong v. The Philippines, Views adopted on 19 October 2000). However, it concluded that this jurisprudence was not applicable in the cases at issue, as the executions took place before the registration and before the requests for interim measures to be addressed to the State party.

Concerning the execution itself, the Committee concluded that the secrecy surrounding the date of execution and the place of burial, and the refusal to hand over the bodies for burial, had the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress. It decided that the authorities’ initial failure to notify the authors of the scheduled dates of the executions, and their subsequent persistent failure to notify the authors of the location of their sons’ grave amounted to inhuman treatment of the author, in violation of article 7 of the Covenant


Case 1077/2002: Carpo v The Philippines

The authors in this case were convicted of multiple murder and attempted murder through a single act. All levels of the Philippine courts considered article 48 of the Revised Penal Code to govern the case, according to which if a single act resulted in several crimes, the most serious penalty for the most serious crime had to be applied. Accordingly, the authors were sentenced to death (the penalty for murder having been re-introduced) on that basis only. They argued before the Committee that the Philippines, having abolished the death penalty, could not revive it and further that their appeal failed to meet guarantees provided in article 14.

The Committee, referring to its established case law on the mandatory imposition of the death penalty, observed that the authors were automatically sentenced to death by virtue of the fact they had committed two crimes (including murder) by a single act. No assessment of the particular circumstances of the case or of the authors had been made, and the imposition of the death penalty was therefore arbitrary and contrary to article 9, paragraph 1, of the Covenant. In the light of this conclusion, the Committee did not address the remaining issues raised.


Case No 836/1998: Gelazauskas v. Lithuania

In this case, the author was convicted of murder and sentenced to thirteen years of imprisonment by the Supreme Court in 1994. Mr. Gelazauskas appealed on four occasions against this decision, but his case was not so reviewed, as the State party’s legislation provided that the Supreme Court’s decisions are final and not subject to any appeal. In 1995 and 1996, however, he requested the President of the Criminal Chamber of the Supreme Court, following an extraordinary supervisory procedure inherited from the former Soviet legal system, to have his case re-examined. The President rejected the requests.

The author claimed that his right to appeal under article 14, paragraph 5, of the Covenant, was violated by the State party. The State party replied that its legislation was modified in 1995, and that appeals had been possible since then. However, the Committee considered that the possibility for a convicted person to request from a judge that he initiate a review did not constitute, in the circumstances of the case, a right to review within the meaning of article 14, paragraph 5, of the Covenant, because such submission was entirely within the discretion of the judge concerned and would not bring the case for review by a higher tribunal.

It is interesting to point out that in its decision, the Committee has adopted a position which is similar to that of the European Court for Human Rights (Application No. 47033/99, Tumilovich v. Russia, and Application No. 47936/99, Pitkevich v. Russia), in the sense that the extraordinary supervision proceedings, left to the discretion of chairmen of courts and chief prosecutors or their deputies, does not constitute an effective judicial remedy.



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