27 September 2002

A United Nations panel has found breaches of the International Covenant on Civil and Political Rights in seven cases brought by individuals against States parties to the pact. No violations were found in three other cases.

The panel, the Human Rights Committee, also declared seven cases inadmissible and one other admissible. The findings came during the Committee’s last session, held from 8 to 26 July 2002 in Geneva.

The cases finally decided are summarized below, including the three in which no violation was found. Those cases, considered to be of particular jurisprudential interest, concern the ability to participate in self-determination processes (Gillot v. France); the banning of “dwarf tossing” on the grounds of protection of human dignity (Wackenheim v. France); and the absence of any Covenant provision applicable to homosexual marriages (Joslin v. New Zealand). One case in which a violation was found involved a father who could not exercise visiting rights with his son following separation from his wife (Patera v. Czech Republic).

The Committee examined the cases under the First Optional Protocol to the Covenant. One hundred and two countries have recognized the Committee’s competence to examine complaints from individuals who claim to be victims of violations of the rights contained in the Covenant and who have exhausted domestic procedures of redress.

Also in Geneva, the Committee on the Elimination of Racial Discrimination has held one individual complaint submitted under article 14 of the Convention on the Elimination of All Forms of Racial Discrimination to be inadmissible. The decision in question, summarized below, was adopted during CERD’s last session, held from 5 to 23 August. Forty-one countries have recognized the Committee’s competence to examine individual complaints.

The full texts of the decisions reached by the Committee can be found on the website of the Office of the High Commissioner for Human Rights,

Decisions of Human Rights Committee

In the following cases, the Human Rights Committee found that Covenant provisions had been violated:

Gedumbe v. Democratic Republic of Congo (Case No 641/1995) -- In this case, the complainant had been dismissed from his post as director of the (then) Zaire consular school in Bujumbura, Burundi. Attempts to vindicate his rights before the (then) Zairean courts and administrative authorities were unsuccessful, and he was not reinstated or paid salary arrears. Disposing of other allegations in an earlier decision on the admissibility of the case, the Committee had held that issues under articles 14 (right to fair trial), 25 (right to access to civil service) and 26 (right to be free from discrimination) should be examined on the merits.

The Committee noted the failure of the State party to respond to the allegations made, and held that there had been a violation of article 25, in conjunction with article 2 of the Covenant. By way of remedy, the Committee considered that the complainant was “entitled to an appropriate remedy, namely: (a) effective reinstatement to public service and to his post, with all the consequences that this implies, or, if necessary, to a similar post; and (b) compensation comprising a sum equivalent to the payment of the arrears of salary and remuneration that he would have received from the time at which he was not reinstated to his post, beginning in September 1989".

Rodriguez Orejuela v. Colombia (Case No 848/1999) -- In this case, the complainant had been convicted of drug trafficking and sentenced to 23 years’ imprisonment and a fine. The conviction and sentence (albeit reduced) were upheld on appeal. He was tried by special courts established after the date of the commission of the drug-related offences. He contended that, being subjected to a purely written procedure, he had been denied a public hearing, the ability to be present at trial, and a proper defence. At second instance, he challenged the competence of the tribunal on the ground that the identity of the judges was kept secret. He contended that these facts gave rise to a violation of article 14 (right to a fair trial).

The Committee concluded that although he was tried by institutions not existing at the time of the offence, that these “new procedural rules” established “in order to ensure the proper administration of justice, which was under threat at the time” did not by themselves violate article 14. The Committee did find a violation of article 14 in that the complainant was denied an oral hearing and was not present at the proceedings and was unable to cross-examine witnesses against him.

Francis et al. v. Trinidad & Tobago (Case No 899/1999) -- In this case, three individuals were arrested on suspicion of murder and held in detention for several years until they were tried and sentenced to death in November 1990. Appeals to the Court of Appeal and Privy Council were dismissed in March 1995 and November 1996, respectively. From the point of conviction until commutation of sentence on 3 March 1997 to 75 years imprisonment, the complainants were confined on death row in conditions of solitary confinement. After the commutation of sentence, the complainants were detained in overcrowded cells in unsatisfactory conditions. The complainants argue that these facts, and their inability to bring them to court, violated their rights under articles 9 and 14 (right to trial and appeal within a reasonable time), article 7 (right to be free from torture, or cruel, inhuman or degrading treatment or punishment), article 10 (right of prisoners to be treated with dignity), and article 14 (right of access to court).

Consistent with its earlier decisions, the Committee found that the conditions of detention violated the complainants’ rights under article 10. It also found that the delay to trial violated their rights under articles 9 and 14, but that it was not clear that the further delay to the appeal was in fact attributable to the State party. As to claim on access to court, the Committee considered that it did not need to decide this question, as it had decided the selfsame issues which the complainants wanted to bring to court.

Chira-Vargas v. Peru (Case No 906/2000) -- In this case, the complainant had been dismissed from his duties in the civil service. The dismissal was quashed by the first instance court, and this decision was upheld on appeal. Notwithstanding the courts’ orders, the complainant had not been reinstated in his post. He contended that his rights under articles 14 (right to a fair trial, including presumption of innocence), 17 (right to reputation) and 25 (right of access to civil service) had been violated.

The Committee decided, as to the claimed breach of his right to be presumed innocent, that this related only to criminal proceedings and did not to apply to the civil proceedings in question. As to the fairness of the trial, the Committee considered that the courts had acted as competent, independent and impartial tribunals, which was not affected by the government’s subsequent refusal to execute their decisions. These claims were declared inadmissible under article 3 of the Optional Protocol. The Committee, however, considered that the failure to reinstate the author, as directed by the courts, violated his right to access, on general terms of equality, to public service, under article 25, in conjunction with the right to an effective remedy contained in article 2. The Committee made a recommendation similar to that in Case No 641/1995 (above).

Jayawardena v. Sri Lanka (Case No 916/2000) -- This case was brought by a Sri Lankan member of the United National Party, who claimed that statements made publicly by the President of Sri Lanka, accusing him of being involved with the Liberation Tigers Tamil Elam put his life at risk. In this respect, the complainant alleged that although there had been no actual attempt on his life, he had received many death threats. The complainant also claimed that the State party failed to protect his right to life by refusing to grant him sufficient security, despite his allegations of receiving death threats, and failed to investigate any of the complaints he made to the police.

The Committee found that the claim relating to the failure to provide the complainant with extra security was inadmissible on grounds of non-substantiation, but considered the other two claims on the merits. The Committee held that the statements made by the Head of State while acting under official immunity amounted to a violation by the State party of the complainant’s right to security of person under article 9, paragraph 1, of the Covenant, considering that the author had received death threats after these statements and did fear for his life. The Committee also found a separate violation of article 9, paragraph 1, of the Covenant, because of the State party’s failure to investigate the threats to his life.

Mátyus v. Slovakia (Case No 923/2000) -- This case was brought by a candidate for the elections to Rožòva Town Council. He claimed that he failed to be elected, as because number of representatives in each district was not proportional to the number of inhabitants therein and that he would have needed substantially more votes to be elected than candidates in other districts. In his view, this violated his rights under article 25 (a) and (c) (right to take part in the conduct of public affairs and to have access to the public service) of the Covenant.

The Committee noted that the Constitutional Court of the State party held that the equality of election rights required by the State party’s constitution was violated (a clause similar to the rights protected under article 25 of the Covenant), because election districts for the same municipal council had been drawn with substantial differences between the number of inhabitants per elected representatives. The Committee further noted the State party’s failure to explain the differences in the numbers, and held that the State party had violated the complainant’s rights under article 25 of the Covenant. The Committee also held that the finding of a violation in this case was a sufficient remedy in itself, as cancelling elections after they have taken place may not always be appropriate, especially when the inequality was inherent in the laws and regulations laid down before the elections, and not in the elections themselves.

Patera v. the Czech Republic (Case No 946/2000) -- The complainant, who had separated from his wife, alleged that the Czech authorities had refused to act upon numerous court decisions granting him regular access to their son. He contended that this violated his own rights along with the rights of his son under articles 17 (right to protection of family life), and 2 (right to an effective remedy).

As to the issue under article 17, the Committee focused on the question whether the State party had afforded effective protection to the complainant’s right to meet his son in accordance with the decisions of its courts. The Committee considered that although the courts repeatedly had fined the complainant’s wife for failure to respect their preliminary orders regulating the complainant’s access to his son, these fines were neither fully enforced nor replaced with other measures aimed at ensuring his rights. In the light, moreover, of the considerable delays at various stages of the proceedings (lasting some 13 years), the Committee found a violation of article 17, in conjunction with article 2 of the Covenant. The Committee recommended a remedy including measures to ensure prompt implementation of the courts’ orders regarding visiting rights.

In the following cases, the Committee found no violation of the Covenant:

Wackenheim v. France (Case No 854/1999) -- The complainant, a dwarf who had been employed in discotheques as the object of “dwarf tossing”, was unable to continue this activity owing to a ban of the practice imposed by the relevant local authorities, because the practice was deemed to be contrary to human dignity. The ban was upheld on appeal through to the highest French courts. The complainant contended before the Committee that such a ban violated his rights under articles 2 (right to an effective remedy), 5 (undertakings concerning the Covenant), 9 (right to be free from arbitrary detention), 16 (right to legal identity), 17 (right to respect for family life) and 26 (right to be free from discrimination).

The Committee, having reduced the complaint in substantive terms to a claim under article 26, concluded that the ban in question did not amount to prohibited discrimination. It was satisfied that the ban on dwarf tossing was “not abusive but was necessary in order to protect public order including, inter alia, considerations of human dignity which are compatible with the aims of the Covenant.” It therefore found that the distinction between the complainant and persons to whom the ban imposed by the State party does not apply (that is, persons not capable of being thrown) was based on objective and reasonable grounds and consistent with the Covenant.

Joslin v. New Zealand (Case No 909/1999) -- This case was brought by two lesbian couples in New Zealand who wished to marry. The marriage registrar refused the couples’ notices of marriage, and this refusal was challenged before the local courts. The High Court and in turn the Court of Appeal found against the complainants, holding that the terms of the relevant legislation (the Marriage Act 1955) were clearly confined to marriage between a man and a woman. The complainants then alleged before the Human Rights Committee that their inability to marry constituted violations of their rights under articles 2 (right to an effective remedy), 23 (right to protection of the family) and 26 (right to be free from discrimination) of the Covenant.

The Committee held that there had been no violation of the Covenant. It observed that article 23, paragraph 2, of the Covenant referred specifically to marriage between “men” and “women”. This clear language could not be construed to include homosexual couples. As this provision determined the concept of marriage for purposes of the Covenant, the Committee considered that the more general provisions of the other articles of the Covenant had to be read in the light of article 23.

Gillot v. France (Case No 939/2000) -- In this case, numerous French citizens resident in New Caledonia contended that their exclusion, for failure to satisfy specific electoral requirements, from various processes in the evolution of New Caledonia’s future status violated their rights under articles 2 (right to an effective remedy), 12 (right to freedom of movement), 25 (right to participation in public life) and 26 (right to be free from discrimination).

The Committee addressed the substantive arguments under article 25, in coming to a conclusion that there had not been a violation of that provision of the Covenant in the organisaton of the plebiscites in question. Taking the right of self-determination (article 1 of the Covenant) into account in its interpretation of article 25, the Committee found that the particular voting requirements imposed were reasonable. Firstly, they applied solely to ballots held in the framework of a self-determination process, limiting participation to persons “concerned” by the future of New Caledonia who had established sufficiently strong ties to that territory. The Committee also took into consideration the fact that the Noumea Accord and legislation recognizing a New Caledonian citizenship reflected a common destiny chosen and provided the basis for the restrictions on the electorate in question, in particular for the purpose of the final referendum.

The Committee concluded that "the cut-off points set for the referendum of 1998 and referenda from 2014 onwards are not excessive inasmuch as they are in keeping with the nature and purpose of these ballots, namely a self-determination process involving the participation of persons able to prove sufficiently strong ties to the territory whose future is being decided. This being the case, these cut-off points do not appear to be disproportionate with respect to a decolonization process involving the participation of residents who, over and above their ethnic origin or political affiliation, have helped, and continue to help, build New Caledonia through their sufficiently strong ties to the territory."

The Committee declared the following cases inadmissible.

Silva et al. V. Zambia (Cases Nos 825-828/1999) -- The Committee joined the consideration of four separate complaints into a single case. Each of the complainants, Sri Lankan nationals, accepted legal positions with the Zambian government. The authors contend that as a result of undue delays in payments due to them, along with a non-reimbursed tax deduction exceeding one-third of these allowances, they prematurely terminated their contracts and were unable to enjoy free repatriation to Sri Lanka as provided for in their contracts. Attempts to settle the cases in the Zambian High Court were unsuccessful. The complainants argue that their engagement in Zambia entailed forced labour, contrary to article 8 of the Covenant.

The Committee found the complaints inadmissible for want of substantiation, determining that the complainants had not shown how the taxation and the failure to make full payment could be seen as constituting forced labour.

Zébié Aka Bi v. Côte d'Ivoire (Case No 940/2000) -- In this case, the complainant contended that he was unable fully to participate in presidential elections, for changes to electoral laws had restricted aspiring presidential candidates to those of Ivory Coast citizenship. The complainant alleged that his inability to run for the presidency himself or to vote for persons not satisfying these requirements violated his political rights under article 25.

The Committee considered that the complaint was inadmissible, and observed: “that the author has produced no arguments relating to any efforts he has made to claim his rights, either as a voter or as a candidate in the presidential election. Under the circumstances, the Committee considers that the author has not demonstrated that he is a victim of a violation of the Covenant, and that the communication is therefore inadmissible under article 1 of the Optional Protocol.”

I.N. v. Sweden (Case No 1055/2002) -- The complainant brought this case on behalf of a third person, who allegedly suffered from a mental disability and had been detained at an institution for the mentally impaired without legal authorization on an ongoing basis. It was further alleged that the conditions of detention were such that detainees were unable properly to exercise normal freedom of movement.

The Committee considered that on the basis of the material submitted by the author it was not clear whether the complainant had proper authorization to represent the alleged victim, whether the communication was intended to address the individual case of the alleged victim or a more general situation, whether the domestic remedies were in fact exhausted or whether the same matter had not already been examined by the European Commission of Human Rights (so as to preclude the Committee’s competence pursuant to a reservation by the State party). In any event, the Committee considered that even if these matters were clarified, the complainant had not substantiated, for purposes of admissibility, any claim of a violation of the Covenant.

Hesse v. Australia (Case No 1087/2002) -- In this case, the complainant alleged that he had been subjected to spine injections of a drug manufactured by the Pharmacia & Upjohn Company, with the result that he had become an invalid. He claimed that since his claim for compensation against the Pharmacia & Upjohn company was statute-barred in Western Australia, whereas a similar claim in New South Wales would not be statute-barred, he was discriminated against, in violation of article 26. He further alleged that he had been subjected to medical experimentation without his consent, in violation of article 7. Furthermore, by transferring his claim from a state where it was not statute-barred to a state where it was, the Australian courts had allegedly violated his rights to equal access to the courts under article 14, and the doctors' and hospitals' delay in providing medical records, so as to cause his action to become statute-barred, also denied him his rights under article 14 of the Covenant.

As to the claims under article 14 and 26, the Committee considered that the complainant had not substantiated, for the purposes of admissibility, that these claims would raise issues under these articles of the Covenant. As to the complainant’s claim under article 7, the Committee noted that the alleged medical experimentation took place in the period from 1977 to 1989, prior to the entry into force of the Optional Protocol for Australia, and that claim was therefore inadmissible ratione temporis. Accordingly, the communication was declared inadmissible under articles 1 and 2 of the Optional Protocol.

The Committee held a further case against Canada admissible. A review of the facts of the case and the present admissibility decision will be contained in the Committee’s decision on the merits.

Decision of Committee on Elimination of Racial Discrimination

K.R.C v. Denmark (Case No 23/2002) -- In this case, the complainant, a United States national, sought a bank loan in Denmark in order to purchase a car. The application form indicated a requirement of Danish nationality. The complainant was informed that the general bank policy was not to provide loans for foreigners, as collecting the loan would be difficult. However, in view of her personal circumstances (including lengthy residence and employment in Denmark), she was invited to resubmit the application form. Instead, the complainant obtained a loan from another bank at a higher interest rate. The original bank refused to reimburse the complainant for the difference in the terms of the loans. Following investigation of her criminal complaint for alleged racial discrimination, the police and public prosecutor decided not to press charges.

The Committee decided that the complaint was inadmissible, for, despite being invited to do so, she had not submitted an application detailing her personal circumstances to the original bank. Accordingly, no act of discrimination had taken place which the Committee could examine.

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