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Print this pageCOMPLAINTS MECHANISMS: Summary cases from UN Treaty Bodies

Date:

19/12/2012

Organisation:

Child Rights International Network

Resource type:

Publication (general)

Summary:

CRIN has compiled summaries of cases brought to UN treaty body complaints mechanisms.


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Cases brought to:



CAT

 

Non-refoulement to the Democratic Republic of the Congo and the prevalence of sexual violence.

Title
Eveline Njamba and Kathy Balikosa v. Sweden

Court/Judicial Body:
Committee against Torture

Citation:
Communication No. 322/2007

Date:
11 June 2007

Instruments cited:
Convention against Torture
Article 3: Refoulement

Summary:
Ms. Njamba and her family were originally from the Gemena province of Equateur in the Democratic Republic of the Congo (DRC). Ms. Nhamba's family moved to the Goma region where her husband became involved with an armed militia group. Violence erupted locally, allegedly in response to the activities of Ms. Njamba's husband, and he and three of the couple's children disappeared. Ms. Njamba, believing these members of her family to have been killed, fled to Sweden with her daughter. In Sweden, Ms. Njamba and her daughter unsuccessfully sought asylum, exhausted the available appeals mechanisms and submitted a communication to the Committee against Torture alleging that they faced a risk of torture if returned to the DRC.

The Committee considered Ms. Njamba's claim that the medical resources in the DRC would be inadequate to treat her for HIV, and the deterioration of her health would constitute torture, to be inadmissible. Generally speaking, the deterioration of an already existing condition will not be considered to fall within the definition of torture. The Commission found that Sweden would, however, violate the rights of Ms. Njamba and her daughter if it returned them to the DRC. The Committee considered that the situation in the country was such that they would have faced foreseeable, real and personal risk of torture. In reaching this conclusion, the Committee placed particular weight on the prevalence of sexual-violence against women throughout the country. The Committee noted that the prevalence of such violence was not limited to the areas of the country where conflict was ongoing, so it would not be possible to identify safe areas of the country for repatriation.

Link to full judgement:
http://sim.law.uu.nl/SIM/CaseLaw/fulltextcat.nsf/160f6e7f0fb318e8c1256d410033e0a1/6e9ceef56f1c2296c1257770003017fd?OpenDocument



CCPR

 

Communications made on behalf of children but without their consent.

 

Title
A.B. v. Italy

Judicial Body/Court:
Human Rights Committee

Citation:
Communication No. 565/1993

Date:
2 November 1993

Instruments Cited:
International Covenant on Civil and Political Rights

Summary:
Mr. A.B. Alleged that the State had violated the rights of Mr. and Mrs. H and their four children by requiring that the children be subject to compulsory vaccinations. The Human Rights Committee would not consider the case on its merits, as Mr. A.B. could not provide documentary evidence that he had been given permission to act on behalf of the couple and their children.

Link to Full Text Judgement:
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/0910f266652f927c8025672b003ecdc8?Opendocument



Incommunicado detention as a violation of the prohibition on torture and cruel, inhuman or degrading treatment of the family of the primary victim.

 

Title
Adam Hassan Aboussedra v. Libyan Arab Jamahiriya

Judicial Body/Court:
UN Human Rights Committee

Citation:
Communication No. 1751/2008

Date:
10 October 2007

Instruments Cited:
International Covenant on Civil and Political Rights
Art. 2(3): Right to an effective remedy
Art. 7: Prohibition on torture, cruel, inhuman or degrading treatment or punishment
Art. 9: Right to liberty and security of person
Art. 10(1): Duty to treat persons deprived of their liberty with humanity and respect for the dignity of the human person
Art. 14: Right to a fair and public trial
Art. 16: Right to recognition as a person before the law

Summary:
Dr. Adam Hassan Aboussedra (the author) brought a complaint on behalf of his brother, Mohamed Hassan Aboussadra, and his brothers wife and two children. The author alleged that his brother had been arrested by the State without a warrant of being informed of the grounds for his arrest and detained for 20 years, throughout which he was held incommunicado for years at a time and subjected to torture. The author also complained that his brother had been denied access to legal process and that he had not been released upon the orders of the courts. On behalf of Dr. Mohamed Hassan Aboussadra's wife and children, the author also complained that in being denied knowledge of the circumstances of Dr. Aboussandra, they had been subjected to inhuman and degrading treatment. The State made no submissions to the Human Rights Committee with regards to the complaint and in the absence of such submissions the Committee considered the complaint without evidence from the State.

The Commission upheld the author's complaint that his brother had been subjected to torture and inhuman treatment throughout and because of his detention (art. 7) and that the rights of his wife and children under that article had also been violated as a result of the anguish and distress of the limited knowledge that they had of his circumstances. The Committee also found violations of Dr. Mohamed Hassan Aboussadra's right to liberty and security of person (art. 9), that his incommunicado detention constituted a refusal to treat him with respect and dignity as a human person, that he had not been treated in accordance with his fair trial rights (art. 14), and that the State had not provided an effective remedy for these violations (art. 2(3).

Link to Full Text Judgement:
http://www.worldcourts.com/hrc/eng/decisions/2010.10.25_Hassan_Aboussedra_v_Libya.pdf

 

Murder, torture and illegal detention of civilians, including a minor, by Colombian military.

Title
Coronel and ors. v. Colombia

Court/Judicial Body:
Human Rights Committee

Citation:
Communication No. 778/1997

Date:
29 September 1996

Instruments Cited:
International Covenant on Civil and Political Rights
Art. 2(3): Duty to provide an effective remedy
Art. 6: Right to life
Art. 7: Prohibition on torture, cruel, inhumane and degrading treatment
Art. 9: Right to liberty
Art. 17: Right to private and family life

Summary:
The complaint was brought by the family members of seven people who were tortured and killed by Colombian military forces in San José del Tarra including Luis Ernesto Ascanio Ascanio, who was 16 at the time. All of the victims were either in or near their homes at the time, and were taken into military custody without warrants prior to their deaths. The Colombian State did not deny that the military had been responsible for the illegal detention and deaths of the seven people. Several administrative and disciplinary investigations were ongoing at the time the complaint was submitted, but no criminal case had been opened. The State denied that the domestic remedies open to families were inadequate.

The Committee found that there had been violations of the right to life, right to liberty and right to a private life with respect to all of the victims, and that the legal proceedings had not been sufficiently expeditious to constitute an effective remedy. The Committee also found that there was sufficient evidence to demonstrate that the prohibition on torture had been violated with respect to four of the deceased, including Mr. Ascanio Ascanio. The Committee also noted that where serious violations of Covenant rights are alleged, disciplinary and administrative remedies will not be sufficient.

Link to Full Judgement:
http://daccess-dds-ny.un.org/doc/UNDOC/DER/G02/461/11/PDF/G0246111.pdf?OpenElement



Prevention of family reunification.

Title
Dernawi v. Libyan Arab Jamahiriya

Judicial Body/Court:
Human Rights Committee

Citation:
Communicative No. 1143/2002

Date:
15 August 2002

Instruments Cited:
International Covenant on Civil and Political Rights
Art. 12: Freedom of movement
Art. 17: Right to privacy, family, home and correspondence
Art. 23: Protection of the family
Art. 24: Protection of children

Summary:
Mr. Farag El Dernawi (the author) was a member of the Muslim Brotherhood, a political group in Libya. Mr. Dernawi discovered that security personnel had been to his home to arrest him while he was out of the country, and so he did not return to Libya, where his wife and children were living. Mr Dernawi later successfully claimed asylum in Switzerland, and the Swiss authorities approved the reunification of his family in that country. When Mr Dernawi's wife tried to leave Libya to join him, Libyan authorities refused to allow her out of the country and seized the passport that she held jointly with her three youngest children. The author's wife claimed that she made several unsuccessful attempts to reclaim her passport, and was unable to secure the services of a lawyer on the basis of her husband's political activities. The three elder children held their own passports and could have tried to leave the country, but did not want to leave their mother and siblings in Libya. Mr. Dernawi alleged violations of his family's freedom of movement and right to respect for their family, and alleged that the State had failed to provide the required protection for the family and special protection for children.

The Human Rights Committee found that in withdrawing the passport of Mr. Dernawi's wife and three children without providing a justification on the basis of national security, public order, public health or morals, or the rights and freedom of others, the State had violated their right to freedom of movement (art. 12). The Committee also found that in providing a barrier to the reunification of the family, the State had failed to respect the family rights of the author, his wife and all six children, as well as failing to meet its obligation to respect the rights of the family unit (arts. 17 and 23). The Committee also considered that the State had failed to provide special protection for persons under the age of 18 in separating the children from one of their parents without persuasive countervailing reasons (art. 24).

Link to Full Text Judgement:
http://sim.law.uu.nl/SIM/CaseLaw/fulltextccpr.nsf/160f6e7f0fb318e8c1256d410033e0a1/14e623b01843a2abc12573af0051e5b0?OpenDocument



Representation of children in complaints without their authorisation.

Title
E.B. and ors. v. New Zealand

Court/Judicial Body:
The Human Rights Committee

Citation:
Communication 1368/2005

Date:
24 December 2004

Instruments Cited:
International Covenant on Civil and Political Rights

Summary:
E.B. separated from his wife, who denied him access to his three children and later made complaints to the police that he had sexually abused the children. E.B. was never convicted of any offence in relation to his children, but the Family Court considered that he posed "an unacceptable risk" to the safety of the children based, inter alia, on evidence given by the children to a psychologist. The decision was upheld on appeal. The children expressed a wish not to have contact with their father.

The complaint largely turned on the rights of E.B. to see his children and the delay involved in resolving the custody case, but the Human Rights Committee also made rulings with respect to the rights of the children themselves. The Committee considered that E.B. could not make a complaint on behalf of the children as he had not sought their authorisation to do so, they had expressed no desire for him to do so, and had in fact expressed their desire not to have contact with him. The Committee upheld the complaint on behalf of E.B. solely on the basis that the delay in resolving the custody hearing was excessive.

Link to Full Judgement:
http://daccess-dds-ny.un.org/doc/UNDOC/DER/G07/425/19/PDF/G0742519.pdf?OpenElement



Property rights of Roma families.

Title
Georgopoulos and ors. v. Greece

Court/Judicial Body:
Human Rights Committee

Citation:
Communication No. 1799/2008

Date:
22 June 2007 and 5 February 2008

Instruments Cited:
International Covenant on Civil and Political Rights
Art. 17: right to privacy, family and home
Art. 23: protection of the family
Art. 27: protection of ethnic, religious and linguistic minorities

Summary:
Mr. Georgopoulos and his wife, Ms. Georgopoulou complained on their behalf and the behalf of their seven children that they had been evicted from their homes twice, in violation of their rights under the ICCPR. In their complaint, they alleged that their rights to privacy, family, home and special protection as a minority had been violated. The family lived in a Roma settlement in the municipality of Patras. The family had initially successfully attained a court order protecting them from eviction, but the municipality demolished their home while they were temporarily at another location. When the family tried to rebuild their home, the municipality threatened to arrest them and again demolished the property.

The Human Rights Committee held that the State had violated the family's rights to privacy, family, home and special protection as a minority as well as in providing insufficient methods of redress for the violations. In reaching this decision, the Committee stressed the State's delay in investigating the family's allegations of criminal action in the demolition, the substantial documentary evidence that the eviction was carried out unlawfully and the absence of a legal remedy to address the alleged illegality.

The Committee did not consider the family's complaint that their treatment was degrading within the meaning of the article 7 prohibition on cruel, inhuman and degrading treatment, but in an individual opinion, Mr. Salvioli suggested that this article would be fertile ground for future cases.

Link to Full Judgement:
http://sim.law.uu.nl/SIM/CaseLaw/fulltextccpr.nsf/160f6e7f0fb318e8c1256d410033e0a1/579b76f009639c37c12578cb0049a150?OpenDocument



Inadmissibility of complaint with regards to the rights of children unless specifically raised at the national level.

Title
Irschik and ors. v. Austria

Court/Judicial Body:
Human Rights Committee

Citation:
Communication No. 990/2001

Date:
19 March 2004

Instruments Cited:
International Covenant on Civil and Political Rights (ICCPR)
Art. 26: Non-discrimination

Summary:
Mr. Irschik complained on his behalf, and on that of his two sons, that his article 26 rights under the ICCPR had been violated. The complaint arose out of a decision of the Austrian Constitutional Court, which had found a tax law to be unconstitutional, but delayed the enforcement of its decision to give the State time to legislate in place of the impugned law. Mr. Irschik complained that the people who were parties to the case before the Constitutional Court had been exempt from the general delay on the implementation of decision, and that this was a form of discrimination. Mr. Irschik had already submitted his case to the European Court of Human Rights (ECHR), which had considered his complaint "manifestly ill-founded". It was not until the complaint to the Human Rights Committee that the rights of Mr. Irschik's sons were raised.

The Human Rights Committee considered the complaint inadmissible on two grounds. First, the fact that the ECHR had considered the case meant that the Human Rights Committee would not do so. Second, and of particular importance to the rights of the two children, the Committee would not consider a complaint arising in relation to persons that had not been raised in the previous domestic case. Since the rights of the children had not been specifically addressed at the national level, they could not be raised before the Committee.

Link to Full Judgement:
http://www.worldcourts.com/hrc/eng/decisions/2004.03.19_Irschik_v_Austria.htm



Child custody and alleged child abduction.

Title
Juan Asensi Martínez v. Paraguay

Citation:
Communication No. 1407/2005

Date:
26 April 2005

Instruments Cited:
International Covenant on Civil and Political Rights
Article 23(1): right to family
Article 24(1): special protection of children
Article 26: equality and non-discrimination

Summary:
Mr. Martínez and Ms. Mendoza married and had two daughters in Paraguay. They moved to Barcelona in relation to Mr. Martínez's work, but while he was on a business trip, his wife took their children to Paraguay and refused to return. The Paraguayan courts rejected Mr. Martínez's attempts to gain custody of the children, though it took four years for the case to be heard by the Supreme Court. Ms Mendoza did not comply with court orders allowing Mr. Martínez access to his children, and the Paraguayan authorities sentenced her to house arrest for an attack on Mr. Martínez when he visited his two daughters. Mr. Martínez alleged ill-treatment of the children whilst awaiting the final hearing in Paraguay.

While awaiting proceedings in Paraguay, Mr. Martínez launched proceedings in the Spanish courts and was awarded custody of the children, though Ms. Mendoza did not comply. The Spanish authorities also also sought the extradition of Ms. Mendoza in relation to allegations of child abduction.

The Human Rights Committee found that Paraguay had violated Mr. Martínez's right to family and had failed to provide special protection to the children. The Committee placed particular weight in their judgement on the fact that the State had not responded to Mr. Martínez's complaints that the children were being neglected, had not given due consideration to complaints that the children lived in unsafe conditions, and that the Supreme Court had waited four years before hearing the case when an expeditious hearing is essential in "a case such as this". The Committee also found a violation in the State's failure to ensure that Ms. Mendoza complied with court ordered visitation rights, and did not sufficiently address evidence of, and what is meant by, "the best interests of the child" and "psychological risk".

The Committee found that there was insufficient evidence to demonstrate that the State had discriminated against Mr. Martínez on the basis of his nationality.

Link to Full Judgement:
http://daccess-dds-ny.un.org/doc/UNDOC/DER/G09/418/50/PDF/G0941850.pdf?OpenElement



Treatment of a minor during a rape trial and investigation.

Title
L.N.P. v. Argentina

Judicial Body/Court:
Human Rights Committee

Citation:
Communication No. 1610/2007

Date:
25 May 2007

Instruments Cited:
International Covenant on Civil and Political Rights
Art. 7: torture, inhumane and degrading treatment
Art. 14(1): access to the courts
Art. 17: privacy
Art. 24: special protection of minors
Art. 26: non-discrimination

Summary:
Ms. P alleged that she was sexually assaulted by three men when she was 15 years old. She immediately reported the attack to the police, but was kept waiting for several hours at the police station and a medical centre before she was examined. During the exam, Ms. P was subjected to a test of her virginity despite complaining that the attack had been solely anal. Ms. P also complained of the needlessly painful nature of the examination. During the investigation, a social worker interviewed many of Ms. P's neighbours and relatives about her sexual history and morals.

The three alleged attackers were brought to trial, and did not deny that the sexual activity took place, but argued that Ms. P consented. The subsequent trial was conducted solely in Spanish, despite the fact that the first language of Ms. P and several of the witnesses was Qom. The three accused were acquitted following a trial in which great reliance was placed on Ms. P's sexual history by the prosecution and the judge. Ms. P was not notified of her rights to participate in the trial, and so was later unable to appeal. The authorities did not inform Ms. P of the outcome of the trial and, as a result of the remote location of her home, it was two years before she became aware that the accused had been acquitted.

The Human Rights Committee found several violations of Ms. P's rights during the investigation and trial. The Committee found that the police, medical examiner and the court did not provide protections appropriate to Ms. P's age, discriminated against her in the emphasis that was placed on her sexual history, and denied her right of access to the courts when she was not informed of her legal rights. The court also found that the events at the police station and the medical examination constituted inhumane or degrading treatment, and that the investigation had arbitrarily interfered with Ms. P's private life.

Link to Full Text Judgement:
Available via http://tb.ohchr.org/default.aspx



Case about religious education in Norwegian public schools.

Title:
Leirvåg and ors v. Norway

Court:
United Nations Human Rights Committee

Date:
November 3, 2004 

CRC Provisions:
Article 29: Aims of Education (29(1)(c): Education of the child shall be directed to the development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own).
CRC Concluding Observations (2 June 2000, ¶ 26-7) expressing concern that Norway’s new common curriculum on “Religions, Knowledge, and Ethical Education” may be discriminatory; expressing concern regarding the exemption process; recommending that Norway review the implementation of the new curriculum and consider an alternative exemption process.

Other International Provisions:
International Covenant on Civil and Political Rights (ICCPR) Article 18: Right to freedom of thought, conscience and religion; respect for the liberty of parents or legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
UNHRC, General Comment 22, Article 18 (Forty-eighth session, 1993): limitations on freedom of thought or on freedom to have or adopt a religion or belief of one’s choice are not permissible under Article 18; public school instruction on the general history of religions and ethics is permitted if given in a neutral and objective way; public education that includes instruction in a particular religion or belief is inconsistent with article 18.4 unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians.

Domestic Provisions:
Education Act (1998), Section 2(4): sets out parameters for teaching of the subject “Christian Knowledge and Religious and Ethical Education”; provides for partial exemptions from regulations.

Case Summary:
Background:
Norway had in 1997 introduced a new mandatory Christian education subject in the Norwegian school system called “Christian Knowledge and Religious and Ethical Education” (CKREE), which required religious education in the Christian tradition and only provided for exemption from certain limited segments of the curriculum. Several Norwegian parents and their children filed a complaint with the U.N. Committee on Human Rights, challenging CKREE as incompatible with freedom of religion under Article 18 of the International Covenant on Civil and Political Rights (ICCPR). 

Issue and resolution:
The issue presented is whether the compulsory instruction of the CKREE subject in Norwegian schools, with only limited possibilities for exemption, violates the parents’ right to freedom of thought, conscience, and religion under ICCPR Article 18, and more specifically the right of parents to secure the religious and moral education of their children in conformity with their own convictions under ICCPR Article 18(4). The UNHCR concluded that in its present form, Norway’s CKREE curriculum, along with the system of exemptions that had been developed, breached ICCPR Article 18(4) and was incompatible with other international instruments including the CRC.

Court reasoning:
Public schools may instruct pupils in subjects such as the general history of religions and ethics, and still be in compliance with ICCPR Article 18, if that education is provided in a “neutral and objective way.” (as under UNHRC General Comment 22, Article 18). If public education does include instruction in a particular religion or belief, in order to remain consistent with Article 18 it must provide for non-discriminatory exemptions or alternatives that accommodate a parent’s or guardian’s wishes.
Norway’s mandatory Christian education program is not delivered in “neutral and objective way,” and its system of partial exemptions is insufficient to protect the parents’ liberty to ensure that the religious and moral education of their children conforms with their own convictions. The CKREE framework, with its system of exceptions, thus violates ICCPR Article 18(4) and is inconsistent with other international provisions guaranteeing freedom of religion in education, including the CRC.



Access rights and complaint relating to the rights of a child by another.

Title
L.P. v. The Czech Republic

Court/Judicial Body:
Human Rights Committee

Citation:
Communication No. 946/2000

Date:
17 May 1999

Instruments Cited:
International Covenant on Civil and Political Rights
Art. 2(3): right to an effective remedy
Art. 17: Right to private and family life 

Summary:
Mr. LP separated from his wife, Ms. RP, who was awarded custody of their child. A national court ruled on provisional access rights prior to the finalisation of the divorce and Mr. LP was allowed access to his son at specified times. Ms. RP refused him such access, and a series of bitter legal disputes arose during which Ms. RP was fined several times for her refusal to allow Mr. LP to see his son. Proceedings in the Czech Republic continued for nine years before this complaint was made to the Committee.

Mr. LP initially made his complaint based on his rights and the rights of his son. The Committee would not consider a complaint relating to violations of the child's rights, however, unless Mr. LP was acting on behalf of his son, and he did not claim to do so. The Court found a violation Mr. LP's right to family life in conjunction with his right to a remedy in relation to ensure access to his son in accordance with the national court's decision.

Link to Full Judgement:
http://daccess-dds-ny.un.org/doc/UNDOC/DER/G02/444/48/PDF/G0244448.pdf?OpenElement



Maintenance of the family unit and representation of a child without authorisation.

Title
Mohammed Sahid and ors. v. New Zealand

Court/Judicial Body:
Human Rights Committee 

Citation:
Communication No. 893/1999

Date:
28 August 1998

Instruments Cited:
International Covenant on Civil and Political Rights
Art. 23(1): protection of the family
Art. 24(1): special protection of the child and non-discrimination

Summary:
Mr. Sahid, a Fijian citizen, was the father of Jamila and grandfather of her son, a New Zealand citizen. Mr. Sahid entered New Zealand on a temporary permit to visit his daughter and grandson, and remained in the country until he was deported ten years later following a series of appeals. He argued that the interests of the child lay in maintaining the family unit, including himself, and that since he was the primary caregiver of his grandson, to deport him would discriminate against his grandson. He also argued that his deportation would break up the family unit in contravention of article 24.

The Committee considered all applications on behalf of the child inadmissible on the grounds that Mr. Sahid had not obtained his grandson's authorisation to represent him in this communication. With regards to Mr. Sahid's claim that his deportation would unjustifiably break up the family unit, the Committee dismissed this argument on the basis that his grandson would remain in New Zealand in the custody of his mother and her husband.

Link to Full Judgement:
http://daccess-dds-ny.un.org/doc/UNDOC/DER/G03/411/71/PDF/G0341171.pdf?OpenElement



Rights of children of disappeared persons.

Title
Mónaco de Gallicchio and ors. v. Argentina

Court/Judicial Body:
Human Rights Committee

Citation:
Communication No. 400/1990

Date:
2 April 1990

Instruments Cited:
International Covenant on Civil and Political Rights:
Art. 16: recognition as a person before the law
Art. 17: right to privacy
Art. 23: right to family
Art. 24: non-discrimination and special protections for children
Art. 26: equality before the law

Summary:
Ximeno Vicario's parents were apprehended by police in 1977 and never seen again. The National Commission on Disappeared Persons investigated the disappearance in 1983, but the parents' whereabouts were never established. Ms. Monaco, the grandmother of Ximeno, launched her own investigation and found her granddaughter living with a nurse, S.S.. Ms. Monaco was granted temporary guardianship over Ximeno and S.S. was granted visitation rights while an investigation was undertaken as to whether to bring criminal charges against her.

Ms Monaco sought to end the visitation rights of S.S. on the basis that they were having a negative effect on her granddaughter, but was denied standing to do so as she was not the child's parent or permanent guardian. Ms. Monaco also tried to apply for identity papers to be issued under Ximeno's birth name but, again, lacked standing.

Ms. Monaco made the complaint on behalf of her granddaughter and herself alleging, inter alia, that Ximeno was denied her right to be recognised as a person (art. 16), that the forced visits of S.S. amounted to an arbitrary interference with her and her granddaughter's right to privacy (art. 17) and that the ambiguous situation was harmful to the integrity of the family (art. 23). Before the complaint was addressed by the Committee, Ms. Monaco was granted full guardianship of Ximeno, the visits of S.S. ended according to Ximeno's express wishes (she was then a minor) and Ximeno turned 18.

The Committee found that denying Ms. Monaco standing in some proceedings served to deny Ximeno a mechanism to protect her rights, and that proceedings had not been carried out with sufficient speed. Many of the alleged violations took place before the ICCPR came into force in Argentina, however, so while the adoption by S.S. entailed numerous acts of arbitrary unlawful interference, they could not be considered. The Committee also considered that the national courts had respected Ximeno's identity rights in issuing her papers according to her identity at birth.

Link to Full Judgement:
http://www1.umn.edu/humanrts/undocs/html/vws400.htm



Religious education of children of divorced couples. Individual opinion on the representation of children in legal proceedings.

Title
P.S. and ors. v. Denmark

Court/Judicial Body:
Human Rights Committee

Citation:
Communication No. 397/1990

Date:
Date of communication: 15 February 1990

Instruments Cited:
International Covenant on Civil and Political Rights

Summary:
P.S. and the mother of his child divorced and custody was awarded to his ex-wife. The relevant authorities awarded him visitation rights on the condition that he refrain from teaching his son the Jehovah's Witness faith in accordance with his ex-wife's wishes. In Danish law, the parent granted custody has responsibility for making decisions related to the child's religious education. P.S. made several appeals against this condition and submitted a complaint to the Parliamentary Ombudsman, but did not apply for judicial review. P.S.'s complaint focussed on the alleged violation of his rights to religion, assembly and private and family life.

The Committee found this complaint inadmissible on the grounds that P.S. had not made an application for judicial review, and so had not exhausted domestic remedies. P.S.'s reasons for not applying for judicial review, namely that the expense and his belief that it would not provide an adequate remedy, were not considered sufficient. No decision was made on the merits of the case.

In an individual opinion, Mr. Bertil Wennergren said he would be willing hear the complaint, as it was not possible to appeal against the decision of the Ombudsman, but considered that the potential conflict of interest between P.S.'s right to respect for his religion and the rights of his son might render it inappropriate for P.S. to represent his son in the complaint.

Link to Full Judgement:
http://www1.umn.edu/humanrts/undocs/html/dec397.htm



Law enforcement raids and the rights to family, home and privacy, and the prohibition on torture, cruel, inhumane and degrading treatment.

Title
Rafael Armando Rojas García v. Colombia

Court/Judicial Body:
Human Rights Committee

Citation:
Communication No. 687/1996

Date:
30 August 1995

Instruments Cited:
International Covenant on Civil and Political Rights
Article 7: prohibition on torture, cruel, inhumane and degrading treatment
Article 17: right to privacy, family and home

Summary:
At 2 a.m. on 5 January 1993, a team of armed men in civilian clothing broke into the house of Mr. García where he was living with his family, including a number of young children. The team conducted a search during which they terrified and verbally abused the occupants of the house, and a shot was discharged. According to the relevant authorities, the armed men had intended to target the house of the suspected murderers of a former mayor, but were mistaken as to the address. By the time the complaint was heard by the Human Rights Committee, it had been 7 years since the incident had occurred, and complaints made nationally had not produced results. Mr. García complained on behalf of himself and his family, including a number of children, that the State had violated their right to privacy, family and the home, and also violated the prohibition on torture, cruel, inhumane or degrading treatment.

The Committee found that the State had arbitrarily interfered with the family's rights to privacy, family and the home in entering the family home in such a violent manner in the early morning. The majority of the Committee also considered that the State had violated the prohibition on torture, inhumane or degrading treatment, as the State did not refute allegations made in this regard.

Two members of the Committee disagreed with the majority in relation to the violation of article 7, in that they considered that there was no intent to cause that harm to Mr. García and his family, and that the assault on the house would have been justified had it been conducted on the house of the suspected murderers.

Link to Full Judgement:
http://www.unhchr.ch/tbs/doc.nsf/0/8b146b126c3716c8c1256a6c00278318?Opendocument



Decision of the Human Rights Committee on a case concerning arbitrary detention and subsequent unfair trial.

Title
Sharifova and ors v. Tajikistan

Court/Judicial Body:
Human Rights Committee

Citation:
Communications No. 1209, 1231/2003 and 1241/2004

Date:
April 24, 2008

Instruments Cited:
International Covenant on Civil and Political Rights (ICCPR): Art. 7 (prohibition on torture and cruel, inhuman or degrading punishment), Art. 9 (right to liberty and security), Art. 10 (right to dignity), Art. 14 (right to a fair trial)

Summary:
Communications were submitted on behalf of five victims, two of whom were under age 18 at the time of their arrest, alleging unlawful arrest, torture, unfair trials, and unjustified deprivation of liberty. Tajikistan failed to either investigate these allegations or to submit documents for the Committee's consideration contesting the victims' claims. In light of this, the Committee found violations of the victims' right to be free from torture, right to a fair trial, and right to be treated with dignity in situations of deprivation of liberty.

In particular, the Committee noted that the two victims who were minors faced violations of the special rights and protections they should have been accorded throughout the criminal process, namely: being informed directly of the charges against them and, if appropriate, through their parents or legal guardians, being provided with appropriate assistance in the preparation and presentation of their defence.

Link to Full Judgment:
Dowload decision here



Asylum claims of an unaccompanied minors

Title
X.H.L. v. The Netherlands

Judicial Body/Court:
Human Rights Commission

Citation:
Communication No. 1564/2007

Date:
8 January 2007

Instruments Cited:
International Covenant on Civil and Political Rights

Summary:
Mr. L entered the Netherlands when he was 12 years old as an unaccompanied minor. Upon arrival he applied for asylum and his application was rejected under an accelerated procedure. He appealed, and the court ordered the Minister of Immigration to reconsider the application through the full procedure. Mr. L's application was turned down and his appeals to the District Court and the Council of State were unsuccessful.

The Human Rights Committee considered that the State had violated Mr' L's to special protection as a child in conjunction with his right not to be subject to inhumane or degrading treatment. In reaching this decision, the Committee took account of the government's failure to ascertain whether Mr. L would be able to access health, education and social services if returned to China, in light of his lack of registration documents and the fact that the State had not identified any friends or relatives in China.

Link to Full text Judgement
http://tinyurl.com/cujgh37




CEDAW

 

Regarding national legislation on domestic violence and the provision of shelters to protect victims and their children.

Title
V.K. v. Bulgaria

Court/Judicial Body:
The Committee on the Elimination of Discrimination against Women

Citation:
Communication No. 20/2008

Date:
15 October 2008

Instrument Cited:
Convention on the Elimination of All Forms of Discrimination against Women
Art. 1: definition of discrimination against women
Art. 2: positive obligations of the State to eliminate discrimination
Art. 5: stereotyping
Art. 16: marriage and family relations

Summary:
The author of the complaint, VK, alleged that she had been a persistent victim of domestic abuse at the hands of her husband, and petitioned the Bulgarian courts to issue a protection order against him. VK was issued an interim order, but at the full hearing, the court refused to make a permanent order in accordance with its interpretation of national law on the basis that no domestic violence had taken place in the month prior to the initial hearing. The ruling was upheld on appeal. VK specifically alleged that the State had neglected its positive obligation under the Convention on the Elimination of All Forms of Discrimination against Women to protect her from domestic violence, and that it had not acted to ensure the necessary protection to avoid irreparable damage to her and her two children.

The Committee found that the State had failed to provide VK with effective protection against domestic violence under articles 2(c)-(g) of the Convention, in particular citing the court's failure to issue a permanent protection order against her husband and to provide sufficient shelters to protect her and her children. The Committee noted the “lack of gender sensitivity” in addressing domestic violence, and the failure to take account of a long history of domestic violence outside of immediate threats. The Committee also considered that the legal regulations that required VK, as an alleged victim of domestic violence, to prove beyond reasonable doubt that her husband had been violent to her placed an excessive legal burden upon her.

Link to Full Judgement:
http://www2.ohchr.org/english/law/docs/CEDAW-C-49-D-20-2008.pdf






CERD

Alleged racial bias in the Danish judicial system.

 

Title
C.P and ors. v. Denmark

Court/Judicial Body:
Committee on the Elimination of Racial Discrimination

Citation:
Communication No. 5/1994

Date:
15 March 1995

Instruments Cited:
International Convention on the Elimination of All Forms of Racial Discrimination

Summary:
The communication relates to two events: alleged racial harassment and the unlawful dismissal of C, and the trial and investigation following a violent attack on his son, M. Only the complaint in relation to M pertains to children's rights.

M, a 15 year old boy, was attacked and racially abused by a group of four young men aged 17 to 18 in which he sustained serious injuries that required surgery in order to repair. The assailants were later tried and three of them were convicted of offences relating to the attack. Two of the young men convicted were fined, and the third was sentenced to a 60 day suspended prison term. The Public prosecutor appealed the suspended sentence and it was increased to a 40 day unconditional prison term. C argued, on his son's behalf that the trial was carried out with bias against his son on the grounds of his race and because the mother of one of the accused was a clerk at the District Court.

The Committee found the complaint inadmissible on the grounds that there was insufficient evidence of a violation of M's rights under the Convention. The police investigated and prosecuted the attack, and when the Public Prosecutor considered the sentence too lenient, he appealed and secured a less lenient sentence. A replacement judge was also brought in from another venue to take account position of the accused's mother within the court. Upon a review of the documentation, the Committee found no evidence that the police or judicial proceedings were tainted by racially discriminatory considerations.

Link to Full Judgement:
http://www1.umn.edu/humanrts/country/decisions/CERDDEC5.htm





Investigation of a complaint of racism in a school.

Title
Kashif Ahmad v. Denmark

Court/Judicial Body:
UN Committee on the Elimination of Racial Discrimination

Citation:
Communication No. 16/1999

Date:
Date of communication: 28 May 1999

Instruments Cited:
International Convention on the Elimination of All Forms of Racial Discrimination
Art. 1(4): special protections to eliminate racism; Art. 6: effective remedy

Summary:
An altercation occurred within a school, in which the headmaster allegedly made a number of racial slurs against Kashif Ahmed and a group of his friends. Mr. Ahmed later contacted the police who spoke to the headmaster but decided not to investigate the matter further, on the grounds that they did not consider the remarks made by the headmaster to be racist in nature in a manner prohibited by the Penal Code. The incident occurred in front of a sizable group of witnesses, none of whom were interviewed by police. Mr. Ahmed employed a lawyer to pursue his complaint, but the State Attorney supported the police in deciding not to pursue the matter.

The Committee found that the investigation of the matter was insufficient to establish whether Mr. Ahmed had been subject to racist abuse, and so was incapable of providing protection against such treatment. The Committee recommended that the State act to "ensure that the police and the public prosecutors properly investigate accusations and complaints related to acts of racial discrimination which should be punishable by law according to article 4 of the Convention".

Link to Full Judgement:
http://www.unhcr.org/refworld/country,,CERD,,PAK,,3f588f023,0.html



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Last updated 19/12/2012 11:13:12

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