UN Treaty Bodies: Individual Complaints

Ben Schokman (HRLRC)

Peter Henley (Mallesons Stephen Jacques)

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]

Process – Admissibility

Complaint OHCHR (Petitions Unit) for initial

assessment

Provide a summary to the relevant Committee’s

‘Special Rapporteur on New Communications’

Decision by Special Rapporteur whether to register

complaint

99% of complaints are inadmissible Majority are prepared without legal assistance

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

Process – Complaint

State Party has 6 months to respond on admissibility and merits

Author has 2 months to submit comments on the State Party’s response

(Sometimes a further response from the State Party)

“View” issued by Committee (often includes recommendations)

Usually 30-40 decisions each year by HRC

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

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

Case Studies: Complaints to the Human Rights Committee – Nystrom v Australia &Taha v Australia

Background – Nystrom

Nystrom’s father – Swedish Nystrom’s 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

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

Background – Nystrom (cont)

February 2005 – Nystrom applies for judicial review of the Minister’s decision in the Federal Magistrates Court

16 March 2005 – Hartnett FM dismisses application and upholds Minister’s decision

1 July 2005 – Full Court of the Federal Court of Australia upholds Nystrom’s appeal – Nystrom is released from Port Phillip Prison

8 November 2006 – High Court allows the Minister’s 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

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

Alleged Violations – Nystrom

Stefan Nystrom: Article 9 – arbitrary detention Article 12(4) – right to enter one’s 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

Request for Interim Measures

Preliminary Communication submitted to the UN Human Rights Committee prior to Nystrom’s 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.

Article 12(4) – Right to enter one’s own country Article 12(4):

No one shall be arbitrarily deprived of the right to enter his own country.

Australia is Nystrom’s ‘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

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 Nystrom’s 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)

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)

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’

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 Nystrom’s permanent residency status; and Compensation, assessed according to the standards

applicable under Australian domestic law.

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 party’s submissions. 26 October 2004 - The State party presents its submissions on

admissibility and merits, and reserves its rights in relation to the Committee’s request for interim measures.

9 November 2004 - Committee invites Taha to make comments on the State party’s Submission on admissibility and merits.

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 party’s Submission.

28 December 2004 - Committee grants the author’s representative’s request for an extension of time until 10 February 2005.

31 January 2005 - Office of International Law, A-G’s Department, notifies the author’s representatives that the request for materials cited in the State party’s 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 Australia’s standard FOI procedures.

Background – Taha (cont)

10 February 2005 - Submitted the response on Taha’s behalf to the State party’s 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

Alleged Violations – Taha

Article 7 – torture, cruel inhuman or degrading treatment (non refoulement)

Article 9(1) - arbitrary detention Article 9(4) - fair hearing

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?

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

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

Advantages and disadvantages

Committee’s View is only a recommendation

Attitude of the Australian Government?

Lengthy procedure – can take 2-4 years for a

decision

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, D&E, Shafiq) Winata v Australia C v Australia Brough v Australia

Further Information

Copy of the Communications HRLRC website > Human Rights Library > Legal Briefs

Taha v Australia: submitted by PILCH

HRLRC Manual Chapter 6 > Individual Complaint Mechanisms

www.hrlrc.org.au