Highlights of treaty body jurisprudence in individual complaints September – December 2014

GENEVA (18 May 2015) – Detailed below are the case law notes from the work of the treaty bodies in considering individual complaints:

CRPD 12th session, 15 September – 3 October 2014

At its session, the Committee adopted 1 Views finding no violation of the Convention, and 1 decision declaring a communication inadmissible.

Jurisprudence highlights

• Communication No. 10/2013, SC v Brazil – Definition of disability

The case concerned a Brazilian citizen, employee of the Banco do Estado de Santa Catarina (BESC). From June 2006 to January 2009, the author had three motorcycle accidents which resulted in an injury to her left knee, with serious complications. The State party argued that the communication was inadmissible ratione materiae since the author has no disability as defined under the Convention. While declaring the communication inadmissible for other reasons, the Committee clarified that the difference between illness and disability is a difference of degree, and not a difference of kind. A health impairment which initially is conceived of as illness can develop into an impairment in the context of disability as a consequence of its duration or its chronicity.

For more information, and other decisions adopted by the Committee at its session, see: http://www.ohchr.org/en/treaty-bodies/crpd

HRC 112th session, 7 to 31 October 2014

At its session, the Committee adopted 35 Views finding a violation of the Covenant, 4 Views finding no violation of the Covenant, and 8 decisions declaring communications inadmissible. It also decided to discontinue the consideration of 3 pending communications.

Jurisprudence highlights

• Communication No. 1968/2010, Blessington & Elliot v Australia – Life sentence imposed on minors

The case concerned a life sentence imposed on two minors (14 and 15 years old at the time) in 1990 without possibility of parole. In fact, the Committee noted that they must serve 30 years of their life sentence before being permitted to apply for a determination of their sentence; that such determination would be limited to setting a non-parole period; and that upon completion of the non-parole period the Parole Authority could only release the authors of the communication if they are either in imminent danger of dying or physically incapacitated. The Committee found that a life sentence for minors is only compatible with the Covenant if there is a possibility of review and a more than theoretical possibility of release, once domestic authorities evaluate progress towards rehabilitation and review the justification of continued detention. The Committee, while inter alia referring to the Convention on the Rights of the Child, concluded that the life sentences, as applied to the authors, did not meet the State party’s obligations under article 7, read together with articles 10, paragraph 3 and 24 of the Covenant.

• Communication No. 2132/2012, Leven v Kazakhstan – Freedom of religion

The case concerned a German citizen, born in Kazakhstan who had been a member of the Evangelist Christian Baptist church in Kazakhstan since his childhood. He was convicted by a Kazakhstan court of conducting missionary activity without the required registration and sentenced to a fine and expulsion from Kazakhstan. The conviction was based on a provision of the Law « On Freedom of Religion and Religious Unions » and the court ruled that, since the author is a German citizen, his activities - namely repeatedly participating in and leading services in the Evangelist Christian Baptist church and reading sermons – constitute missionary activity under the definition of the law. The Committee considered that Mr. Leven’s activities formed part of his right to manifest his beliefs and that the conviction and sentence and the resulting loss of his residence permit and threat of deportation constituted limitations of the above right. It further noted that the State party had not advanced any argument as to why it was necessary for the purposes of article 18, paragraph 3, for Mr. Leven to first register as a foreign missionary in order to engage in prayers together with his associates from the same church, in conducting meetings between them in the premises of the church and in preaching. The Committee accordingly concluded that his rights under article 18, paragraph 1 had been violated.

• Communication No. 2243/2013, Husseini v Denmark – Deportation of father of two small children violation of family life

The case concerned an Afghan national who had come to Denmark at the age of 13 as a refugee, together with his father and siblings. In 2002, at the age of 16, he was first sentenced to a prison term for robbery and related crimes. In 2005, he was again convicted for robbery, and the court ordered him expelled from Denmark and he was served with a permanent re-entry ban. In 2006, Mr. Husseini married a Danish national. The couple (who divorced in 2009) have a son, born on 3 November 2008 and a daughter, born on 4 September 2010, who live with their mother but keep a close relationship with their father. In 2010, Mr. Husseini was again sentenced to a term of imprisonment. In 2013, upon serving his prison sentence, he was remanded in custody awaiting his expulsion to Afghanistan. Mr. Husseini claimed that his expulsion would violate his and his children’s right to family (article 23 of the Covenant), and that his expulsion would violate his children’s right to measures of protection by the State (article 24 of the Covenant). The State party had argued in essence that since the children were born after his expulsion was ordered and after he was served with a permanent entry-ban, they could not have had any justified expectation of being able to have and continue a family life in Denmark. First, the Committee considered that the decision of the State party to deport Mr. Husseini, coupled with a permanent re-entry ban, was to be considered “interference” with the family, at least in circumstances where, as here, substantial changes in family life would follow. The Committee further noted that the decision to expel the author was upheld by the Eastern High Court on 22 January 2008 but could not be implemented until 13 May 2013, a five-year period during which the author’s children were born. The Committee also noted that the State party had not reviewed the new circumstances and, in particular, never examined to what extent Mr. Husseini’s deportation would be compatible with the right of his children to such measures of protection as required by their status as minors (article 24 of the Covenant). The Committee further noted that the material in front of it did not allow it to conclude that the State had given due consideration to the family’s right to protection by society and the State, and the right of children to special protection. Under these circumstances, the Committee took the view that removing Mr. Husseini and separating his children from their father without reviewing these new personal circumstances would amount to a violation of article 23, paragraph 1, read in conjunction with article 24 of the Covenant. It requested the State party to proceed to a review of the decision to expel Mr. Husseini with a permanent re-entry ban, taking into account the State party’s obligations under the Covenant.

For more information and other decisions adopted by the Committee at its session, see: http://www.ohchr.org/en/treaty-bodies/ccpr/jurisprudence

CEDAW 59th session, 20 October – 7 November 2014

At its session, the Committee adopted 3 decisions declaring a communication inadmissible and 1 decision declaring a communication admissible. It did not adopt any Views on the merits of a communication.

For more information and the decisions adopted by the Committee at its session, see:
http://www.ohchr.org/en/treaty-bodies/cedaw/optional-protocol-convention-elimination-discrimination-against-women-jurisprudence

CAT 53rd session, 3 – 28 November 2014

At its session, the Committee adopted 8 decisions on the merits finding a violation of the Convention, and 4 merits decisions finding no violation of the Convention. It also decided to declare 1 communication inadmissible and to discontinue the consideration of 20 pending communications.

Jurisprudence highlights

• Communication No. 495/2012, N.Z. v Kazakhstan – Effective date of the application of the State party’s declaration under article 22

While the Committee found no violation of the Convention in the case, the case is interesting for procedural reasons, as the Committee considered for the first time the starting moment of the application of the States parties' declarations under article 22 (through which States accept the Committee's competence to consider individual complaints). Although the Convention specifies that the Convention enters into force for a State party 30 days after ratification, nothing is specified for the entry into force of a declaration under article 22. The Committee decided that any declaration made under article 22 after ratification of the Convention, is immediately applicable and communications can be considered as of the date when such declaration is made.

• Communication No. 514/2012, Niyonzima v. Burundi – Torture of political opponent

The case concerned the former General Secretary of the People’s Reconciliation Party, who was arrested on 1 August 2006, and taken to the National Intelligence Service, questioned and asked to admit his alleged part in preparing a coup d’état and assassination of the President. The complainant was severely tortured by intelligence officers with steel chains, iron bars, and other instruments. He was left half unconscious and put in an overcrowded cell where he remained for a week. On 9 August 2006, he was charged with involvement in an attempted coup d’état, and transferred to a prison. Although in critical condition, he was not allowed to see a doctor until 1 September 2006. He was detained without legal basis for more than 5 months in appalling conditions. He was released on 16 January 2007, after having been acquitted. The State party had argued that, although the information presented to the Committee was correct, the communication was abusive because of its political motives. The Committee found a violation of articles 1, 2 (1), 12, 13, 14, 15 and 16, read in conjunction with article 11 of the Convention, and urged Burundi to conduct an impartial investigation and to provide adequate and fair compensation to the complainant, including means for full rehabilitation.

For more information and other decisions adopted by the Committee at its session, see:
http://www.ohchr.org/en/treaty-bodies/cat/jurisprudence

To search the treaty bodies Views and decisions, consult: http://juris.ohchr.org