UN Treaty Bodies: Individual Complaints

1
UN Treaty Bodies Individual Complaints

• Ben Schokman (HRLRC)
• Peter Henley (Mallesons Stephen Jacques)

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Individual Complaints

• Treaty bodies that receive individual complaints
• HRC (OP-ICCPR)
• CAT (art 22)
• CERD (art 14)
• CEDAW (OP-CEDAW)
• CMW Art 77
• OP-ICESCR

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Process Admissibility

• Complaint ? OHCHR (Petitions Unit) for initial
  assessment
• Provide a summary to the relevant Committees
  Special Rapporteur on New Communications
• Decision by Special Rapporteur whether to
  register complaint
• 99 of complaints are inadmissible
• Majority are prepared without legal assistance

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Admissibility

• Must be individual and must not be anonymous
• State must be party to the treaty and optional
  protocol
• Must be a violation of a right under the treaty
• Complaint must be in writing
• Domestic remedies must be exhausted
• Must not be under examination by another
  international procedure

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Process Complaint

• State Party has 6 months to respond on
  admissibility and merits
• Author has 2 months to submit comments on the
  State Partys response
• (Sometimes a further response from the State
  Party)
• View issued by Committee (often includes
  recommendations)
• Usually 30-40 decisions each year by HRC

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Follow up on Views

• State Party usually has 180 days to communicate
  what has been done to implement the decision of
  the Committee
• Send reminders every 3 months
• Role of NGOs
• Lobby government
• Contact case officer at OHCHR
• Disseminate Views

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Interim Measures

• Available with HRC and CAT
• Usually deportation, refoulement cases
• Committee requests State Party to defer action
  until final decision
• State Party usually abides
• CERD
• Early Warning and Urgent Action procedures

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Case Studies Complaints to the Human Rights
Committee Nystrom v Australia Taha v Australia
9
Background Nystrom

• Nystroms father Swedish
• Nystroms mother born in Finland and migrated
  to Sweden in 1950 Swedish citizen
• In 1966, couple permanently migrated to Australia
  permanent residency status
• Mrs Nystrom gave birth to their first child in
  1969 Annette Australian citizen
• In 1973, while pregnant a second time, Mrs
  Nystrom returned to Sweden with her daughter to
  visit family members
• Gave birth to Stefan Nystrom in Sweden on
  31 December 1973 Swedish citizen
• Following the birth, Mrs Nystrom departed for
  Australia on 25 January 1974, accompanied by
  Nystrom, who was 25 days old at the time

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Background Nystrom (cont)

• Since that date, Nystrom had not left Australia
  until his deportation in 2006 (33 years old)
• Since the age of 10, Nystrom has been convicted
  of a large number of offences based largely on
  an alcohol addiction
• Ward of the State at age 13
• Nystrom has a substantial criminal record
  within the meaning of s 501(7) of the Migration
  Act
• August 2003 Dept of Immigration issues a notice
  of intention to consider the cancellation of visa
• August 2004 Minister signs a deportation order
• November 2004 Nystrom arrested by Australian
  Federal Police and taken into Port Phillip Prison
  where he remained in high security for 8 months

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Background Nystrom (cont)

• February 2005 Nystrom applies for judicial
  review of the Ministers decision in the Federal
  Magistrates Court
• 16 March 2005 Hartnett FM dismisses application
  and upholds Ministers decision
• 1 July 2005 Full Court of the Federal Court of
  Australia upholds Nystroms appeal Nystrom is
  released from Port Phillip Prison
• 8 November 2006 High Court allows the
  Ministers appeal
• 10 November 2006 Nystrom is arrested in Swan
  Hill and taken into the Maribyrnong Immigration
  Detention Centre
• 22 December 2006 HRLRC submits Preliminary
  Communication to the UN Human Rights Committee
  seeking interim measures
• 29 December 2006 Nystrom is deported to Sweden
• April 2007 HRLRC submits Full Communication to
  the UN Human Rights Committee

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Admissibility General

• Optional Protocol
• Article 1 Australia is a party to the ICCPR and
  Optional Protocol and the complainants are
  subject to its jurisdiction
• Article 2 authors of the communication claim
  their rights have been violated and domestic
  remedies have been exhausted
• Article 3 complaint is not anonymous and is
  compatible with ICCPR
• Article 5(2) not being considered by any other
  procedure of international investigation or
  settlement

13
Alleged Violations Nystrom

• Stefan Nystrom
• Article 9 arbitrary detention
• Article 12(4) right to enter ones own country
• Article 14(7) double punishment
• Article 17 protection of privacy, family or
  home
• Article 23(1) protection of family
• Article 26 right to non-discrimination
• Britt Nystrom (mother)
• Article 17 protection of privacy, family or
  home
• Article 23(1) protection of family
• Annette Turner (sister)
• Article 17 protection of privacy, family or
  home
• Article 23(1) protection of family

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Request for Interim Measures

• Preliminary Communication submitted to the UN
  Human Rights Committee prior to Nystroms
  deportation requesting that, pending the
  determination of the Communication
• Nystrom not be removed from Australia and
• Nystrom not be detained as an unlawful
  non-citizen or in any other form of immigration
  detention while in Australia or
• in the event that Nystrom is removed from
  Australia, he be granted the right to temporarily
  re-enter Australia on a reasonably regular basis.

15
Article 12(4) Right to enter ones own country

• Article 12(4)
• No one shall be arbitrarily deprived of the
  right to enter his own country.
• Australia is Nystroms own country he has
  known no other country
• Highly unlikely that he will be granted a visa to
  enter Australia in the future due to his
  substantial criminal record
• Concept of arbitrariness contemplates that it
  must not simply be equated with against the law
  but must be interpreted broadly to include such
  elements as inappropriateness, excessiveness or
  lack of proportionality

16
Article 14(7) Double punishment

• Article 14(7)
• No one shall be liable to be tried or punished
  again for an offence for which he has already
  been finally convicted or acquitted in accordance
  with the law and penal procedure of each country.
• Nystrom was tried, convicted, and imprisoned for
  his crimes in accordance with Australian criminal
  law
• Cancellation of Nystroms visa and his
  consequential detention and deportation to Sweden
  each constitutes a second instance of punishment
• Unreasonable discrimination on the basis of
  nationality (articles 2(1) and 26)

17
Articles 17 and 23 Right to privacy and
protection of the family unit

• Article 17
• 1. No one shall be subjected to arbitrary or
  unlawful interference with his privacy, family,
  home or correspondence, nor to unlawful attacks
  on his honour and reputation.
• 2. Everyone has the right to the protection of
  the law against such interference or attacks.
• Article 23(1)
• The family is the natural and fundamental group
  unit of society and is entitled to protection by
  society and the State.
• Interference that is unlawful or arbitrary
• Unreasonable discrimination on the basis of
  nationality (articles 2(1) and 26)

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Article 9 Arbitrary arrest or detention

• Article 9(1)
• Everyone has the right to liberty and security
  of person. No one shall be subjected to arbitrary
  arrest or detention. No one shall be deprived of
  his liberty except on such grounds and in
  accordance with such procedure as are established
  by law.
• Detention in Port Phillip Prison and Immigration
  Detention was not reasonable, necessary,
  proportionate, appropriate and justifiable in all
  of the circumstances

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Findings and Remedies Nystrom

• Findings
• Communication requested the Committee to act
  under Article 5(4) of the Optional Protocol to
  make a finding that the State party has violated
  each of Articles 7, 9, 12(4), 14(7), 17, 23(1)
  and 26 of the Covenant
• Remedies
• Article 2(3)(a) of the Covenant requirement to
  provide an effective remedy in relation to the
  violations
• Communication requested the following remedies
• Reinstatement of Nystroms permanent residency
  status and
• Compensation, assessed according to the standards
  applicable under Australian domestic law.

20
Background Taha

• Around 20 January 2004 - Hassan removed from Port
  Hedland detention centre to Perth detention
  centre for deportation
• 23 January 2004 - Initial Communication sent to
  the Committee, alleging breaches of article 7,
  and also 9(1) and 9(4) of ICCPR.
• 26 January 2004 - Committee requests the State
  party
• to provide information and observations on
  admissibility and merits and
• request Australia not deport Taha until the
  Committee has had an opportunity to address the
  State partys submissions.
• 26 October 2004 - The State party presents its
  submissions on admissibility and merits, and
  reserves its rights in relation to the
  Committees request for interim measures.
• 9 November 2004 - Committee invites Taha to make
  comments on the State partys Submission on
  admissibility and merits.

21
Background Taha (cont)

• 23 December 2004 Request to the AG dept to
  provide materials cited in the State party
  Submission which were not publicly available, and
  to the Committee for an extension of time to
  10 February 2005 for the submission of comments
  by the author on the State partys Submission.
• 28 December 2004 - Committee grants the authors
  representatives request for an extension of time
  until 10 February 2005.
• 31 January 2005 - Office of International Law,
  A-Gs Department, notifies the authors
  representatives that the request for materials
  cited in the State partys Submission has been
  referred to DIMIA for consideration.
• 7 February 2004 - Receive a response from DIMIA
  stating that the materials requested by Taha on
  23 December 2004 need to be sought through
  Australias standard FOI procedures.

22
Background Taha (cont)

• 10 February 2005 - Submitted the response on
  Tahas behalf to the State partys Submission.
• 31 August 2005 - Second attempted deportation and
  Federal Court application for injunction
• 1 6 September 2005 - Flight halted in Dubai,
  UNHCR provided further info confidentially to
  Australia government, returned to Australia
• Mid September 2005 Taha permitted to reapply
  for TPV afresh
• Late 2005 / early 2006 - Further response by AG
  Dept to Committee, denying allegations and
  requesting withdrawal of communication
• 6 October 2006 - TPV received
• 5 October 2007 - PPV received
• December 2007 - Withdrawn

23
Alleged Violations Taha

• Article 7 torture, cruel inhuman or degrading
  treatment (non refoulement)
• Article 9(1) - arbitrary detention
• Article 9(4) - fair hearing

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Use and value of communication Taha

• Not a judicial process as such not an appeal
• No binding ruling on State party will follow
• Long time period 4 years
• What is the benefit?
• Can it provide urgent assistance?
• Does it put pressure on States to comply?
• Is it worth doing for the record?
• What other benefits are there?

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Use and value of communication Taha (cont)

• Urgency
• Interim measures are hard to get
• But might be useful for Federal Court proceedings
  injunction
• evidence of alleged violations
• provided basis for establishing urgency
• Pressure on States together with reports, etc
• For the record?
• May be a useful record of changes in Australian
  law
• Also provides a list of examples for domestic
  advocacy purposes

26
Use and value of communication Taha (cont)

• Engagement of other UN agencies HCR
• provided formal and substantive basis for HCR
  involvement crucial re deportation and return
• led eventually to TPV and PPV
• External advocacy of case / media?
• query whether publicity is always beneficial
• what tone / profile will media coverage give, and
  will it help?
• confidentiality and secrecy

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Advantages and disadvantages

• Committees View is only a recommendation
• Attitude of the Australian Government?
• Lengthy procedure can take 2-4 years for a
  decision

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Some practical considerations

• Consider which treaty body to engage
• Different/variable strengths of Committees
• Consider whether Special Procedures may be more
  useful?
• Examples
• Toonen v Australia
• Young v Australia
• A v Australia (see also Baban, Bhaktiaryi, DE,
  Shafiq)
• Winata v Australia
• C v Australia
• Brough v Australia

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Further Information

• Copy of the Communications
• HRLRC website gt Human Rights Library gt Legal
  Briefs
• Taha v Australia submitted by PILCH
• HRLRC Manual
• Chapter 6 gt Individual Complaint Mechanisms
• www.hrlrc.org.au