Monitoring Compliance with the Universal Bill of Human Rights: The Human Rights Committee. A Guide for NGO Practitioners
03 Aug 2018
This chapter was written as part of the author's graduation project for his MA in International Law and the Settlement of Disputes at the UN University for Peace in Costa Rica. Also see UDHR, the Committee on Economic, Social and Cultural Rights and Other Human Rights Treaties.
Pursuant to the provisions of Part IV of the International Covenant on Civil and Political Rights (Articles 28-45), as well as relevant provisions from the first additional, optional protocol of the same Covenant, the Human Rights Committee was established as a quasi-judicial body in charge of monitoring the implementation of ICCPR's provisions at the national level. In accordance with Articles 28-31, the Committee is composed of 18 nationals of State Parties who are elected for a term of four years, and who “serve in their private capacities [i.e. not as representatives of their governments] and make a solemn declaration of impartiality upon taking up office.”[i] As stated in Article 28, members of the committee need to have “high moral character and recognized competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience.”[ii] Additionally, “a Committee member shall not take part in the examination of a communication by the Committee if the state party in respect of which he or she was elected to the Committee is a party to the case.”[iii]
As stated in Article 31(2), Committee members are elected by the State parties while taking into account “equitable geographical distribution of membership and…the representation of the different forms of civilization and of the principal legal systems.”[iv] The elections for half of the members of the Committee takes place “at two-yearly intervals at United Nations Headquarters, during the annual session of the General Assembly.”[v] Members could be reelected upon the expiry of their terms, if re-nominated, and an early election could be held if a member at any given time leaves his/her post before the expiry of their term. In those situations, “the practice has…arisen whereby such members are replaced by persons nominated by the same State party as the vacating member.”[vi] The Committee has five officers, who are elected by its 18 members for terms of two years, and such officers include “the Committee’s Chairperson, with overall responsibility for the conduct of the Committee’s work, three Vice-Chairpersons, and the Rapporteur, to whom the preparation of the Committee’s annual report to the General Assembly is entrusted.”[vii]
Three special rapporteurs are also appointed by the Committee for terms of two years, while taking into account many factors “including the desirability of a fair geographical [representation] and linguistic spread amongst them.”[viii] The first of those additional officers is the Special Rapporteur on New Communications, “whose functions include the registration of new complaints under the Optional Protocol and such preliminary issues as requests for interim measures of protection that may be necessary to prevent irreparable harm in a case presented to the Committee;” the second is the Special Rapporteur on Follow-up to Views “who monitors the implementation of the Committee’s decisions on the merits of individual cases;” and the third is the Special Rapporteur on Follow-up to Concluding Observations, “who is tasked with the Committee’s new procedure of follow-up with respect to individual State party reports considered by the Committee.”[ix]
This Committee of “experts”[x] convenes for three weeks during each of its three annual plenary sessions, in March at the UN Headquarters in New York, and at the United Nations Office in Geneva in July and October, with secretariat services provided by the Office of the High Commissioner for Human Rights.[xi] The majority of those meetings, except when issues discussed pertain to considering “‘communications’ under the Optional Protocol or considering drafts of General Comments” are held publicly, “are poorly attended by outsiders and gather little press coverage.”[xii] The Committee operates in accordance with its rules of procedure, which is available at the online database of the Office of the High Commissioner for Human Rights.[xiii] As stipulated in Article 39 (2), its decisions are based on a majority vote, but generally speaking “[t]he Committee makes all reasonable efforts to reach its decisions by consensus.”[xiv] The following sections describe the main activities of the Committee, which are generally related to 1) the State parties’ periodic reports; 2) the inter-state complaint procedure; 3) the individual complaint procedure; and 4) the provision of general comments in way of giving content to the articles of the Covenant.
1) State Parties’ Reports
One of the Committee’s main strengths is “the moral authority it derives from the fact that its membership represents all parts of the world. Accordingly, far from representing a single geographical or national perspective, the Committee speaks with a global voice.”[xv] As highlighted by Article 40 of ICCPR, every State Party is obliged to submit periodic reports to the Human Rights Committee, “on the measures they have adopted to give effect to the rights the Covenant establishes and on the progress made in the enjoyment of those rights.”[xvi] A State Party’s initial report has to reach the Committee “within one year of the Covenant coming into force for the States concerned and thereafter whenever the Committee so requests.”[xvii] Subsequent reports are known as “periodic reports” and from 1981-1999, State Parties were under the obligation of submitting their periodic reports every five years. However, during the Committee’s sixty-sixth session in 1999, “it decided that ‘the submission of a State party’s subsequent periodic report is set on a case-by-case basis at the end of the Committee’s concluding observations on any report under article 40.’”[xviii]
Generally speaking, the timeframe for the subsequent report is between four – five years but on occasional basis, “the Committee would also call for reports outside the five-year cycle from States suffering from acute human rights crises…,”[xix] or as per Article 40 “at any other time the Committee deems appropriate.”[xx] A procedure dealing with such “emergency situations” has been developed by the Committee since 1991, and by the end of 2000, the Committee requested “urgent reports” from twelve State parties.[xxi] Those reports “have been considered by the committee as soon as possible, usually at the next scheduled session,” but generally speaking “no more than two meetings are scheduled for consideration of emergency reports.”[xxii] The Concluding Observations of the Committee with regards to those reports may also include a provision calling upon the Secretary-General of the UN to address serious human rights violations through “competent organs of the United Nations, including the Security Council.”[xxiii]
In terms of context, the initial report of a State upon joining the Covenant “constitute[s] a State party’s first opportunity to indicate to the Committee the extent to which its laws and practices comply with the Covenant.”[xxiv] As per the guidelines of the committee, a “core document” containing “basic information about a State, its demography and geography, as well as its constitutional, legal and political structures and other general information,” has to accompany the State’s initial report, and such document usually becomes available for use by all other treaty bodies.[xxv] In legal terms, the initial reports include “information on the constitutional and legal framework for the implementation of Covenant rights, explain the legal and practical measures adopted to give effect to the rights, and demonstrate progress made in ensuring their enjoyment.”[xxvi] While comprehensively covering all the rights that are enumerated in ICCPR and referencing the general comments of the Committee on the content of the different rights, reference in those reports “should also be made to any reservations, declarations or derogations which have been made by the State party and these should be fully explained and justified.”[xxvii] The reports are to be accompanied by all relevant documents “which guarantee and provide remedies in relation to Covenant rights,” constitutional, legislative or otherwise, in the context of the factual situation or of the “practical realities regarding the implementation and enjoyment of Covenant rights.”[xxviii]
The subsequent periodic reports of State Parties are shorter and they tend to “focus on the issues raised by the Committee in its previous concluding observations, and on significant developments since the previous report.”[xxix] In other words, the main reference points in those subsequent reports are “(a) the Concluding Observations on the previous report and the summary records of the Committee’s consideration thereof, and (b) an examination by the State party of the progress made towards the current situation concerning the enjoyment of Covenant rights by persons within its territory or jurisdiction.”[xxx] Additionally, the reports should “to the extent possible, be structured to follow the articles of the Covenant,”[xxxi] and they should also “include explanations of the measures taken to address any decisions made against the State on the merits of individual complaints lodged under the Optional Protocol.”[xxxii]
Stages of the Process according to the UN Human Rights Committee:
The State Report is the foundation of the review. In the Initial Report the State should provide information on the implementation of each provision of the ICCPR. In subsequent (Periodic) reports the State should include information on the measures taken to implement the Committee’s previous Concluding Observations, as well as on progress and developments since the previous report.
Adoption of the List of Issues
The List of Issues is a series of questions prepared by the CRTF and sent to the State at least one session before the review. This list highlights issues of concern to the Committee which will be discussed during the review.
State Replies to the List of Issues (Written Replies)
The State is not obliged to reply to the List of Issues in advance of the session, but may do so. The State replies are presented to the Committee at the beginning of the review and are the starting point for the dialogue.
Review (or examination of the State Report)
The Committee meets with State representatives for around six hours during which the State presents the answers to the List of Issues and responds to the Committee’s questions.
At the end of the session at which the review took place the Committee adopts Concluding Observations. This document highlights the Committee’s concerns and makes recommendations to the State on improving the implementation of the ICCPR as well as noting positive developments. The Concluding Obligations are not legally binding for the State, but provide guidance on how to improve the situation. The Concluding Observations also set the deadline for the next State report.
A document produced by the OHCHR containing a summary of the dialogue between the State representatives and the Committee.
One year after the review the State is asked to send a Follow-up Report detailing the measures taken to implement a limited number of Concluding Observations, selected for their urgency and susceptibility to progress within a year. This report is assessed by the Committee’s Special Rapporteur on Follow-up to the Concluding Observations, who may request further information if it is not satisfactory.
In most cases, the Ministry of Foreign Affairs in a given State party “takes the lead role in the submission of a report,” which would be then “translated into the official United Nations languages and posted publicly on the website of the Office of the United Nations High Commissioner for Human Rights.”[xxxiii] State reports would be “generally scheduled for consideration within two years of their submission and information regarding the session at which a report will be considered is usually posted one year in advance on the website of the United Nations High Commissioner for Human Rights.”[xxxiv] Once published as UN Documents, State reports can be accessed via the UN Documents Distribution and Sales Section.[xxxv]
Until recent years, the subsequent procedure used to be one whereby prior to each session of the Committee, the Committee’s pre-sessional Working Group which used to be made up of five members who meet for one week. State reports then received “scrutiny” by the Working Group, with the purpose of finalizing “lists of issues to be put to the representatives of the State,” in addition to the consideration of the “‘Country Profile,’ which is drawn up by the Secretariat on the basis of previous concluding observations of the Committee and previous reports of the State party.”[xxxvi] A group member used to be designated as “country rapporteur,” who prepared the first draft of each list put together by the Working Group, with the questions being “grouped into a number of categories, each encompassing a range of the articles of the Covenant.”[xxxvii] An exception to this procedure used to be the case pertaining to emergency reports, which did not receive “the attention of a pre-sessional Working Group, lists of issues…[were] not prepared and the members put all their oral comments and questions successively.”[xxxviii] The lists of issues prepared by the Working Group under normal circumstances were then given to the State party and put on the OHCHR website so that they could be used “to prepare for a constructive oral dialogue with the Committee.”[xxxix]
Since 2002, the consideration of a State report started taking place over two sequential Committee sessions. The Committee decided in March, 2002 that during the first session, the report would be assigned to a group of 4-6 Committee members, which became known as the Country Report Task Force (CRTF) that is designed to “streamline the reporting procedure and improve the quality of the dialogue with States parties.”[xl] The CRTF has taken over the task of preparatory work from the pre-sessional working group,[xli] and this replacement of the pre-sessional working group by CRTFs “meeting during the plenary, has freed time for a pre-sessional working group on communications to meet for five days prior to each of the Committee’s sessions.”[xlii] The pre-sessional working group on communication is composed of “at least five members of the Committee nominated by the Chairperson, taking account of the desirability of a balanced geographical distribution and other related factors.”[xliii] In accordance with Rule 89 of the Rules of Procedure of the Human Rights Committee, “this working group is entrusted with the task of making recommendations to the Committee regarding communications received under the Optional Protocol,” and it “may designate special rapporteurs from among its members to assist in the handling of communications.”[xliv] The task of those special rapporteurs and the working group is facilitated by the Secretariat, through “assisting in the research and drafting of the requisite number of recommendations on complaints ready for action (normally 25 to 30 per session).”[xlv]
One CRTF member has to be “from the same region as the relevant State,” and mirroring the practice of its predecessor working group, another member is to be designated the “‘country rapporteur,” whose main responsibility is to accompany a report through the Committee’s processes.”[xlvi] The CRTF draws on the report and additional information that is transmitted to the Committee and it prepares lists of issues. This list “addresses the most crucial matters regarding the enjoyment of Covenant rights in the relevant State and often seeks additional information with respect to key questions.”[xlvii] It is also sent to the State party before the subsequent session, during which the relevant report is considered, and usually the State party would provide written answers “in the Committee’s three working languages of English, French and Spanish, to the list of issues, in advance or at the beginning of the Committee’s public examination of the report.”[xlviii]
Steiner and Alston highlight that the purpose of State reports and the discussion that follows them is meant to serve, at the minimum, two “polar purposes.” The first of those is to “confront the state with facts about it derived from other sources than the report, condemn the report if it fails to describe and account for violations, and possibly condemn the state as well, particularly for ongoing violations.”[xlix] On the other hand, the report could also be viewed “as an occasion for ‘constructive dialogue,’ to use the term employed by a number of Committee members.”[l]
The consideration of the report by the Committee during the subsequent session usually takes place over three public meetings in the case of the initial report, or two public meetings in the case of the periodic reports. Once the report is introduced by the government representative of the relevant State, “who may take the opportunity to state government policy on a range of issues and to update material in the report,” the questions and lists of issues that were categorized by the CRTF become dealt with one by one with the representative.[li] After the public meetings, the Committee drafts in a closed session its Concluding Observations, which “comprise a critique of the State report and of the response of the State representative to the scrutiny of the Committee, noting positive factors, drawing attention to subjects of concern and making recommendations.”[lii] Those Concluding Observations are public documents that are issued at the end of each session of the Committee, which become later published on the OHCHR website and “transmitted to NGOs which have submitted information to the Committee, and included in the Committee’s annual report to the General Assembly of the United Nations.”[liii] They have “the dual function of helping States to prepare future reports, and helping the Committee to focus on the most important issues in future dialogues over future reports.”[liv]
Subsequently, the Committee’s Bureau with its Chairperson, the three vice-chairpersons and the Rapporteur, become in charge of following up on “how the situation with regard to serious violations of human rights may have changed in order to determine whether the possibility of adopting a special decision in plenary should be considered.”[lv] Further, in accordance with a decision reached at its fifty-second session, “where the consideration of a report revealed a grave human rights situation, the Committee could request the State party concerned to receive a mission composed of one or more of its members in order to re-establish dialogue with it, explain the situation better and formulate appropriate suggestions or recommendations.”[lvi] Since November, 2000 the procedure set-up by the Committee has been one of requesting each State Party, after the consideration of its report, “to produce a focused follow-up report within a short time-frame (perhaps 18 months) and if it is submitted and satisfactory, a date…[would] be given for the next report which may be many year [thereafter]...”[lvii] The follow-up report addresses those issues identified at the end of the Concluding Observations and which are given particular priority.[lviii] In March, 2001 the new post of the Special Rapporteur on Follow-up to Concluding Observations was created by the Committee, and the State’s follow up report is “translated and in general made publicly available on the Treaty Bodies database of the Office of the United Nations High Commissioner for Human Rights.”[lix]
With the assistance of the Secretariat, the Special Rapporteur on Follow-up to Concluding Observations “assesses this follow-up information and makes a recommendation to the Committee on any further steps that maybe appropriate.” [lx] A time frame would then be set aside by the Committee “to discuss the Special Rapporteur’s findings” and to decide on “further action,” which could include “changing the date for the submission of the State party’s next report, to requesting further information, to requesting the Special Rapporteur to meet with representatives of the State party on a specific issue.”[lxi] If a State Party fails to submit the “focused follow-up report” within the given time-frame, “the Special Rapporteur will meet with representatives in order to pursue the issue,” and if the relevant State continues to be unresponsive, then the circumstances become recorded in the Committee’s annual report to the General Assembly, and “the time set for the next report when the submitted report was considered will apply.”[lxii]
Meanwhile, it is worth noting that many problems persist with regards to State reports, including “incomplete coverage, abstraction and formality that lead states to stress their unenforced constitutional or statutory provisions rather than to offer a realistic description of practices…Delays have been particularly troublesome.”[lxiii] Since delays could lead to unexamined situations in some State parties, the Chairman of the Committee may “choose to send letters to State Parties in circumstances where they are seriously overdue in submitting reports and the human rights situation in the country gives cause for serious concern.”[lxiv] However, the Committee decided in 2001 “that a State’s record under the Covenant could be examined at the Committee’s discretion in the absence of a report, and if necessary in the absence of a delegation from a State party, which would be advised in advance of the proposed date of such an examination.”[lxv] In such instances, provisional concluding observations would be adopted by the Committee “in private session on the basis of information that has been submitted to it concerning the State party being examined.”[lxvi] One source of such information is the written submissions by NGOs and other civil society organizations.
Role of NGOs and Other Members of Civil Society[lxvii]
NGOs and civil society organizations have assumed “an increasingly prominent role in the reporting process, including the compilation of a report,” and their involvement is regarded by the Committee as “best practice in the preparation of a report.”[lxviii] This could be reached through mechanisms such as “consultation with civil society prior to compiling a report, use of information and statistics provided by civil society, involving civil society in reviews of draft reports, and so on.”[lxix] At the same time, if/when their views are excluded in the preparations of any given country report, NGOs can submit their information directly to the Committee.
Prior to the submission of the State report and its translation into the official United Nations languages, “members of civil society advancing a different perspective on issues raised in the report – or, alternatively, not addressed therein – may provide their own submissions to the Committee.”[lxx] Those submissions are often given to the CRTF, “as well as informally to the Committee members and thus to influence proceedings.”[lxxi] In order for them “to be considered in the drafting of the List of Issues,” by the CRTF, “reports should be sent to the Secretariat at least two months before the session at which the List of Issues will be adopted…, which provides an opportunity to ensure that important issues are addressed throughout the reporting process.”[lxxii] To make their submissions carry more weight, “civil society is encouraged, to the extent possible, to submit a common report reflecting the agreed views of a variety of groups or organizations. Such a report, which often tracks the format of the State’s report, is known as a ‘shadow report’”[lxxiii] and it typically comments on the country's compliance with the provisions of ICCPR article by article.[lxxiv]
After the submission of a State report, NGOs can indicate their interest to get involved, based on “differ[ing] perspective on issues raised in the report or, alternatively, not addressed therein,”[lxxv] directly to the Secretariat of the OHCHRs by sending “as much preliminary material as possible for transmission” to the members of the CRTF and the Committee in general.[lxxvi] NGO submissions could also be sent after the adoption of the List of Issues, in the “form of replies to the List of Issues,” which would be taken into account during the interactive dialogue between the Committee and the State party.[lxxvii] Information from NGOs should be sent no later than “two weeks before the start of the session at which the State report will be examined,” if additional submissions are deemed necessary after the adoption of the List of Issues.[lxxviii]
NGOs information “should not repeat the information provided in the State report but complement, correct, amplify or corroborate it.”[lxxix] The involvement of NGOs is “particularly welcome when the State report does not cover all the provisions of the ICCPR, is superficial and lacking adequate documentation, or is biased.”[lxxx] Ideally, such information “review and analyse how far the national laws, policies and other measures comply with the ICCPR. Specific attention should be paid to gaps between the laws and their implementation,”[lxxxi] and reference should be made to the State report and the previous concluding observations.[lxxxii] Such written submissions should particularly take into account articles 2 and 26 of the Covenant, pertaining to non-discrimination and equality before the law, respectively, because “many human rights violations also contain within them an element of discrimination or inequality.”[lxxxiii] Article 26 could be “invoked against a very wide range of inequalities and instances of indiscrimination, and it matters not whether the particular issues are dealt with explicitly in the Covenant.”[lxxxiv]
Since the CRTF usually meets in private, the submissions could also be carried out orally after considerable coordination among the concerned NGOs has been carried out prior to the meeting of the CRTF.[lxxxv] Additionally, sending representatives to the official meeting of the Committee could be very crucial, since “presence at the meetings permits informal contact with members, provision of updated submissions and other documentation, the channelling of information back to the country and the making of a comprehensive record of the proceedings.”[lxxxvi] At the beginning of the three public sessions, and prior to when the Report is officially considered by the Committee, the Committee “hears in a private meeting representatives of specialized agencies and other parts of the United Nations that wish to provide information on the State to be considered. The Committee is also often briefed, typically in an informal lunchtime meeting, on views of members of civil society wishing to bring Committee members up to date on certain issues.”[lxxxvii]
NGOs play a crucial role “in bringing situations of human rights violations to the attention of the Committee. During sessions approaches might be made to all members, whereas inter-sessionally, NGOs might choose to direct their attention directly to the Chairman, through the Secretariat.”[lxxxviii] Under such emergency situations, and in their preparations to bring certain information to the attention of the Committee, NGOs should “pay close attention to the concerns of the Committee, as reflected in the form of its request to the State Party for submission of the [emergency] report.”[lxxxix] At the same time, NGOs and other civil society organizations may also “draw public attention to whatever actions have been taken by the Committee and use this information in their own activities.”[xc]
It is preferable that NGOs submit their information “in all three working languages” of the UN (English, French, and Spanish). “Alternatively, NGOs can submit their information in one of the working languages and prepare executive summaries in the other two languages.”[xcii] They should send their documents “electronically to the Secretariat of the Human Rights Committee as well as provid[e] 25 hard copies which will be distributed to the Committee members.”[xciii] NGO information should be sent by post to:
Secretary of the Human Rights Committee (A.I.)
Human Rights Council and Treaty Bodies Division
Office of the High Commissioner for Human Rights
CH-1211 Geneva 10
An electronic copy should be sent to:
Secretary of the Human Rights Committee (A.I.)
It is important to keep in mind that NGO submissions are usually made public and are posted on the OHCHR website, which makes them also available to State parties. “This should be kept in mind especially for NGOs coming from countries where civil society cannot work freely and is harassed by the authorities.”[xciv] Even under exceptional circumstances where NGO information is kept confidentially, the Secretariat would not be in a position to refuse, should a State party “learn that such information has been submitted to the Human Rights Committee and request a copy.”[xcv]
2) Inter-State Complaint Procedure[I]
Another important activity within the capacity of the Human Rights Committee is that of the inter-state complaints. Articles 41-43 of the ICCPR sets out an “elaborate procedure for the resolution of…disputes between parties,” and allows a State party to submit a communication to the Committee about alleged violations of the Covenant by another State party.[ii] This procedure has never been used, but it “reflects the dual understanding of a human rights treaty as not simply a contract between a State party and persons subject to its jurisdiction, but also a multilateral treaty in the traditional sense that all States parties to a treaty have an interest in the compliance of other State parties with their obligations.”[iii] In other words, “it can be legally said that human rights violations in a State party are of direct concern to all other State parties.” At the same time, as stipulated in article 41, this procedure could be invoked only between two State parties “that have declared that they recognize the competence of the Committee to receive and consider such inter-State complaints.”[iv] Nearly 50 State parties have made such a declaration by 2013, and the procedure consists of the following steps:[v]
The State “lodging the complaint” brings the matter “to the attention of the State that is alleged not to be fulfilling its obligations.”
The latter should reply within three months, “in the form of a written explanation or clarification.”
This could be referred by either party to the Committee, “[i]f, within six months, the matter is not settled to the satisfaction of both parties.”
The Committee may accept to deal with a case, “and propose its good offices in the search for a friendly solution,” only “once satisfied that, within a reasonable period of time, all domestic remedies have been tried, without success.”
If no agreement is reached through the good offices of the Committee, “the Committee may appoint a five-person conciliation commission, with the agreement of the States parties directly concerned, but not including their nationals among its members.”
The conciliation commission would be instructed “to complete its business and submit a report to the Chairperson of the Committee and, through that person, to the parties in dispute, within 12 months.”[vi]
3) Individual Complaint Procedure
In accordance with the authorities given to the Committee by the Covenant and its first Optional Protocol, the Committee has the capacity to receive complaints from individuals.[i] “Individual rights that may be invoked before the Committee are set out in articles 6 to 27 inclusive, comprising Part III of the Covenant, [and] the complaint mechanism for alleged violations of those articles is contained in the First Optional Protocol to the Covenant.”[ii] By becoming a party to the Optional Protocol, a State recognizes the competence of the Committee “to receive complaints from persons within their jurisdiction alleging violations of their rights under the Covenant.”[iii] General comment No. 33 above has already outlined the procedure for submitting an individual complaint.
4) General Comments of the Human Rights Committee
A previous publication on UDHR has eluded to the primary purpose of the Committee’s General Comments, which is that of giving content to the provisions of the International Covenant on Civil and Political Rights. The following is a schematic illustration of all General Comments up-to-date: No.1-35 (1981-2014).[i] This guide should be read in conjunction with the provisions of relevant articles of the Covenant, and it could be used as a reference point for the Committee’s clarifications about perceived ambiguities with regards to the general provisions of the Covenant.
General Comments 1-10 (1981-1983):
General Comment No.1 (07/27/1981) on the Reporting Obligations of State Parties
In its first General Comment, the Committee re-iterated the provisions of article 40 of the Covenant with regards to the obligation of State parties to submit their initial reports within one-year of the Covenant’s entry into force. While the Committee highlighted that it has experienced “delays ranging from a few months to several years” in the submission of those reports by the relevant parties, it has still commended “the constructive dialogue” that it has engaged in with most State Parties.
General Comment No. 2 (07/28/1981) on Reporting Guidelines[ii]
GC No.2 points out that the reporting guidelines of the Committee are drafted with the purpose of creating uniformity among State reports and making them elaborative of the real situation of the domestic level. Particular reference is made to articles 2 and 40 of the Covenant, with regards to the obligation of State parties to implement local remedies in domestic legal systems and the reporting thereafter of such measures to the Committee. GC No. 2 highlights a number of difficulties and obstacles in this regard, including “whether the Covenant had been implemented as part of national legislation,” and the incompletion of the reports on issues such as “the progress achieved and factors and difficulties in implementing the obligations under the Covenant.” The Committee concluded that “some reports are so brief and general that they do not satisfy the reporting obligations under article 40.”
General Comment No.3 (07/29/1981) on the Implementation at the National Level (Article2)
By way of giving content to article 2, the Committee has clarified in GC No.3 that “the Covenant generally leaves it to the State parties concerned to choose their method of implementation in their territories within the framework set out in that article.” In addition to the implementation of constitutional or legislative enactments, which the Committee has considered “not per se sufficient,” GC No.3 stresses the fact that State parties are also under the positive obligation to carry out “specific activities…to enable individuals to enjoy their rights,” which is relevant to all the provisions of the Covenant. For instance, it highlights that “individuals should know what their rights under the Covenant (and the Optional Protocol, as the case may be) are and also that all administrative and judicial authorities should be aware of the obligations which the State party has assumed under the Covenant.”
General Comment No. 4 (7/30/1981) on the Equality between the Sexes (Article 3)
In GC No.4, the Committee points out that a large number of State reports up to that date have “insufficiently dealt with” the obligation “to ensure the equal right of men and women to the enjoyment of all civil and political rights provided for in the Covenant.” It underlines that articles 2 (1), 3, and 6 have all prohibited discrimination on a wide-range of basis, including sex, which requires “not only measures of protection but also affirmative action designed to ensure the positive enjoyment of rights.” The Committee concludes this comment with the recommendations that 1) “special attention were given to a review by specially appointed bodies or institutions of laws or measures which inherently draw a distinction between men and women…;” 2) specific information would be provided by State parties “about all measures, legislative or otherwise, designed to implement their undertaking under this article;” and 3) that “more use could be made of existing means of international cooperation with a view to exchanging experience and organizing assistance in solving the practical problems connected with the insurance of equal rights for men and women.”
General Comment No. 5 (7/31/1981) on Derogation of Rights (Article 4)
Here, it is specified that article 4 “has posed a number of problems for the Committee when considering reports from some State parties.” The Committee has criticized the measures taken by some States “for the declaration of a state of emergency and the applicable provisions of the law governing derogations.” For instance, it was made clear that in the case of some “States which had apparently derogated from Covenant rights, it was unclear not only whether a state of emergency had been officially declared but also whether rights from which the Covenant allows no derogation had in fact not been derogated from and further whether the other States parties had been informed of the derogations and of the reasons for the derogations.” More information about derogations and the conditions under which they are allowed is given in Ch.1, section 2; however, it is important to mention the Committee highlights here that under article 40, state parties are also obliged to inform the Committee and other State parties of “the nature and extent of each right derogated from.”
General Comment No.6 (4/30/1982) on The Right to Life (Article 6)
With regards to the non-derogable right to life, the Committee indicates that the information provided in State reports “was limited to only one or other aspects of this right” and it underlines that this “is a right which should not be interpreted narrowly.” The Committee is of the view that every effort made by States “to avert the danger of war, especially thermonuclear war, and to strengthen international peace and security would constitute the most important condition and guarantee for the safeguarding of the right life.” It notes the particular connection between article 6 and article 20 “which states that the law shall prohibit any propaganda for war (para.1) or incitement to violence (para. 2) as therein described.” Additionally, it highlights that “States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own forces, in accordance with article 6 (1).” GC No.6 stresses the need to fulfill the following obligations: to prevent the disappearance of individuals and to establish effective facilities and procedures to enable the carrying out of relevant investigations; to “take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics;” and to limit the use of the death penalty for “‘the most serious crimes.’” The Second Optional Protocol is often considered an amendment to article 6.
General Comment No.7 (5/30/1982) on Torture or Cruel, Inhuman or Degrading Treatment or Punishment (Article 7)[iii]
The Committee highlights that “even in situations of public emergency, such as are envisaged by article 4(1), this provision is non-derogable.” It further points out that “it is not sufficient for the implementation of this article to prohibit such treatment or punishment or to make it a crime.” GC No.7 stresses that when this article is read together with article 2, one reaches the conclusion that “States must ensure an effective protection through some machinery of control.” For instance, “[a]mong the safeguards which make control effective are provisions against detention incommunicado, granting, without prejudice to the investigation, persons such as doctors, lawyers and family members access to the detainees,” and “provisions making confessions or other evidence obtained through torture or other treatment contrary to article 7 inadmissible in court.” Here, the Committee extends the prohibitions in article 7 to include “corporal punishment, including excessive chastisement as an educational or disciplinary measure,” and it also widens the range of protection under this article to include “not only persons arrested or imprisoned, but also pupils and patients in educational and medical institutions.”
General Comment No.8 (6/30/1982) on the Right to Liberty and Security of Persons (Article 9)
The Committee explains that article 9 “has often been somewhat narrowly understood in reports by States parties, and they have therefore given incomplete information” in its regards. It highlights that even though “some of the provisions of article 9 (part of para.2 and the whole of para.3) are only applicable to persons against whom criminal charges are brought…the rest, and in particular the important guarantee laid down in paragraph 4, i.e. the right to control by a court of the legality of the detention, applies to all persons deprived of their liberty by arrest or detention.” According to the Committee, this includes cases of “mental illness, vacancy, drug addiction, educational purposes, immigration control, etc.” In addition, the Committee underlines that delays between an arrest or a detention and bringing the person “before a judge or other officer authorized by law to exercise judicial power,” “must not exceed a few days. Many States have given insufficient information about the actual practices in this respect,” and for this reason, the Committee “would welcome information concerning mechanisms existing and measures taken with a view to reducing the duration of such detention.” Lastly, even in situations of public emergency, “so called preventive detention” should not “be arbitrary, and must not be based on grounds and procedures established by law (para.1); information of the reasons must be given (para.2); and court control of the detention must be available (para.4) as well as compensation in the case of a breach (para.5).”
General Comment No.9 (07/30/1982) on Humane Treatment of Persons Deprived of Liberty (Article 10)[iv]
In further critiquing State reports, the Committee mentions that “by no means all the reports submitted by States parties contained information” relevant to the requirement of paragraph 1 in article 10, that all persons deprived of liberty “shall be treated with humanity and with respect for the inherent dignity of the human person.” This is described by the Committee as “a basic standard of universal application which cannot depend entirely on material resources,” and must always be applied while bearing in mind the non-discrimination obligations in article 2 (1). In addition to designing legal measures to protect this right, the Committee holds the view that “reports should indicate the concrete measures being taken by the competent State organs to monitor the mandatory implementation of national legislation concerning the humane treatment and respect for the human dignity of all persons deprived of their liberty that paragraph 1 requires.” This includes “all institutions where persons are lawfully held against their will, not only in prisons but also, for example, hospitals, detention camps or correctional institutions.” While clarifying that paragraph 1 of article 10 pertains specifically to “persons deprived of their liberty,” the Committee underlines that “paragraph 2 deals with accused as distinct from convicted persons, and paragraph 3 with convicted persons only. This structure,” highlights the Committee, “quite often is not reflected in the reports, which mainly have related to accused and convicted persons.” It further notes that article 10 supplements article 7 “as regards the treatment of all persons deprived of their liberty,” and points out that a number of reports have been missing information with regards to the other requirements of this article, such as segregating accused persons from convicted persons; separating accused juvenile persons from adults as an obligation that in view of the committee cannot be deviated from “by any consideration whatsoever;” and the provision of legislative or administrative measures or of “practical steps to promote the reformation and social rehabilitation of prisoners.”
General Comment No. 10 (06/29/1983) on Freedom of Expression (Article 19)
It is stated that “the Committee would welcome information from States parties concerning paragraph 1” of this article which permits “no exception or restriction” with regards to “the right to hold opinions without interference.” The Committee points out that with regards to the obligation under paragraph 2 and 3 of this article, “[n]ot all States parties have provided information concerning all aspects of the freedom of expression. For instance, little attention has so far been given to the fact that, because of the development of modern mass media, effective measures are necessary to prevent such control of the media as would interfere with the right of everyone to freedom of expression...” GC No. 10 highlights that “the Committee needs…pertinent information about the rules which either define the scope of freedom of expression or which set forth certain restrictions, as well as any other conditions which in practice affect the exercise of this right.” In other words, the Committee is of the view that it is “the interplay between the principle of freedom of expression and such limitations and restrictions which determine the actual scope of the individual’s right.” Paragraph 3 of article 19 still permits that if “the exercise of the right to freedom of expression carries with it special duties and responsibilities…, certain restrictions on the right are permitted which may relate either to the interests of other persons or to those of the community as a whole.” However, this could only be carried out in accordance with the conditions set forth in paragraph 3 and further explained in the previous chapter.
General Comments 11-20 (1983 - 1992):
General Comment No. 11 (07/29/1983) on the Prohibition of Propaganda for War and Inciting National, Racial or Religious Hatred (Article 20)
This GC further criticizes the insufficient information that is provided in State reports with regards to the fulfillment of their obligations under the Covenant. As has been seen in the previous general comments, this has a lot to do with the lack of clarity in regards to certain provisions and articles, and the Committee in GC No. 11 continued to clarify and give additional information on the content of the provisions of the Covenant. With regards to article 20, the Committee points out that “in some States such actions are neither prohibited by law nor are appropriate efforts intended or made to prohibit them. Furthermore, many reports failed to give sufficient information concerning the relevant national legislation and practice.” The Committee holds the view that article 20 constitutes a prohibition on “discrimination, hostility or violence,” which are acts that “shall be prohibited by law” in manners that are “fully compatible with the right of freedom of expression as contained in article 19.” Additionally, the prohibitions set forth in article 20 are compatible with the Charter of the United Nations with its prohibition of acts of aggression and the breach of peace. At the same time, in view of the Committee, the provisions of article 20 “do not prohibit advocacy of the sovereign right of self-defense or the right of peoples to self-determination and independence in accordance with the Charter of the United Nations.”
General Comment No. 12 (3/13/1984) on The Right to Self-Determination of Peoples (Article 1)
GC No.12 stresses that this right is of “particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights.” In this regards, the Committee highlights that many of the State reports “completely ignore article 1, provide inadequate information in regard to it or confine themselves to a reference to election laws.” Additionally, it stresses that this right “entails corresponding duties for all States and the international community. States should indicate any factors or difficulties which prevent the free disposal of their natural wealth and resources contrary to the provisions of this paragraph [Article 1 (2)] and to what extent that affects the enjoyment of other rights set forth in the Covenant.” For instance, the Committee elevates paragraph 3 of this article to particular importance “in that it imposes specific obligations on States parties, not only in relation to their own people but vis-à-vis all people which have not been able to exercise or have been deprived of the possibility of exercising their right to self-determination.” It further points out that the obligations under this article “exist irrespective of whether a people entitled to self-determination depend on a State party to the Covenant or not…all States parties to the Covenant should take positive action to facilitate the realization of and respect for the right of peoples to self-determination.” While holding this view, the Committee still emphasizes that “States must refrain from interfering in the internal affairs of other States and thereby adversely affecting the exercise of the right to self-determination,” and that “the realization of and respect for the right of self-determination of peoples contributes to the establishment of friendly relations and cooperation between States and to strengthening international peace and understanding.”
General Comment No.13 (04/13/1984) on Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law (Article 14)
Starting with this general comment, the Committee’s remarks have become more lengthy and elaborate. The Committee notes this article of the Covenant “is of a complex nature and that different aspects of its provisions…need specific comments. All these provisions are aimed at ensuring the proper administration of justice, and to this end [they] uphold a series of individual rights such as equality before the courts and tribunals and the right to a fair and public hearing by a competent, independent and impartial tribunal…” Once again, the GC starts in the first paragraph by mentioning the incompleteness of State reports with regards to the listing of all measures adopted in order to implement the obligations under this article. In particular, the Committee has clarified the following:
This article applies “not only to procedures for the determination of criminal charges against individuals, but also to procedures to determine their rights and obligations in a suit at law.” Therefore, States in their reports need to “provide all relevant information and to explain in greater detail how the concepts of ‘criminal charge’ and ‘rights and obligations in a suit at law’ are interpreted in relation to their respective legal systems.”
States parties are obliged to “specify the relevant constitutional and legislative texts which provide for the establishment of the courts and ensure that they are independent, impartial and competent, in particular with regard to the manner in which judges are appointed, the qualifications for appointment, and the duration of their terms of office…”
The presence of military or special courts that try civilians “could present serious problems as far as the equitable, impartial and independent administration of justice is concerned.”
The requirements of article 14 (3) with regards to a “fair hearing” are “minimum guarantees, the observance of which is not always sufficient to ensure the fairness of a hearing…”
“Even in cases in which the public is excluded from the trial, the judgment must, with certain strictly defined exceptions, be made public.”
The rule of innocent until proven guilty “beyond a reasonable doubt” applies. “By reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the benefit of the doubt.”
In light of article 14 (3) (a) “the right to be informed of the charge ‘promptly’ requires that information is given…[either orally or in writing] as soon as the charge is first made by a competent authority.”
In explaining what is meant by “adequate time” in subparagraph 3(b), the Committee points out that this “depends on the circumstances of each case, but facilities must include access to documents and other evidence which the accused requires to prepare his case, as well as the opportunity to engage and communicate with counsel,” in confidentiality and without interference, or pressures from any quarter. The accused should also have the option to defend themselves.
“Undue delay” in trying the accused (subparagraph 3 (c)) is in relation “not only to the time by which a trial should commence, but also the time by which it should end and judgment be rendered.”
“The accused or his lawyer must have the right to act diligently and fearlessly in pursuing all available defences [sic]…When exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defence [sic] is all the more necessary.”
Subparagraph 3(e) is “to guarantee to the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution.”
Providing the accused access to an interpreter or a translator is “independent of the outcome of the proceedings and applies to aliens as well as to nationals.”
“In order to compel the accused to confess or to testify against himself, frequently methods which violate these provisions [of article 7 and 10] are used. The law should require that evidence provided by means of such methods or any other form of compulsion is wholly unacceptable.”
All procedure for the detention of juveniles “shall be such as will take account of their age and the desirability of promoting their rehabilitation,” and in general terms “juveniles are to enjoy at least the same guarantees and protection as are accorded to adults under article 14.”
General Comment No. 14 (11/09/1984) on Nuclear Weapons and the Right to Life (Article 6)
This GC should be read in conjunction with GC No. 6 (1982) that pertains to the Right to Life. Here, the Committee associated itself with the same concern as what has been continuously iterated by of a number of representatives from different parts of the world “during successive sessions of the General Assembly,” in regards to “the development and proliferation of increasingly awesome weapons of mass destruction, which not only threaten human life but also absorb resources that could otherwise be used for vital economic and social purposes, particularly for the benefit of developing countries, and thereby for promoting and securing the enjoyment of human rights for all.” In the words of the Committee, those weapons are “the greatest threats to the right to life which confront mankind today,” that could even be brought about “through human or mechanical error or failure.” The Committee is of the view that “the production, testing, possession, deployment and use of nuclear weapons should be prohibited and recognized as crimes against humanity,” and it has called upon “all States, whether Parties to the Covenant or not, to take urgent steps, unilaterally and by agreement, to rid the world of this menace.”
General Comment No.15 (04/11/1986) on The Position of Aliens under the Covenant
Here, the Committee highlights that “the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness.” As article 2, paragraph 1 states, the rights of the Covenant apply to “all individuals within its [State parties’] territory and subject to its jurisdiction.” Therefore, the Committee sets as a general rule “that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant.” Some rights apply only to citizens (article 25), and others apply only to legal aliens (article 13); however, “the Committee’s experience in examining reports shows that in a number of countries other rights that aliens should enjoy under the Covenant are denied to them or are subject to limitations that cannot always be justified under the Covenant.” The Committee is of the view that the Covenant “gives aliens all the protection regarding rights guaranteed therein, and its requirements should be observed by States parties in their legislation and in practice as appropriate.” It is made clear that a State party has the right to decide “who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.” Once legally within the territory of a State party, an alien’s freedom of movement inside that territory and his right to leave that territory “may only be restricted in accordance with article 12, paragraph 3…Since such restrictions must, inter alia, be consistent with the other rights recognized in the Covenant, a State party cannot, by restraining an alien or deporting him to a third country, arbitrarily prevent his return to his own country.” If the legality of the alien’s stay is disputed, article 13 pertaining to protections given to legal aliens continues to apply, especially with regards to a decision of expulsion or deportation (not arbitrarily). The Committee highlights that “article 13 would not be satisfied with laws or decisions providing for collective or mass expulsions.”
General Comment No.16 (04/08/1988) on The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honor and Reputation (Article 17)
The Committee is of the opinion that “this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons.” As with the rest of the rights that are enumerated in the Covenant, legislative or other measures have to be adopted by State parties to give effect to the protection of this right. In State reports, it is highlighted that “insufficient attention is paid to the fact that article 17 of the Covenant deals with protection against both unlawful and arbitrary interference. That means it is precisely in State legislation above all that provisions must be made for the protection of the right set forth in that article.”
“Unlawful” indicates that “no interference can take place except in cases envisaged by the law,” which “itself must comply with the provisions, aims and objectives of the Covenant.”
“Arbitrary interference” in the view of the Committee “can also extend to interference provided for under the law,” but even then, such interference “should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.”
“Family” should be broadly interpreted “to include all those comprising the family as understood in the society of the State party concerned.”
“Home” “is to be understood to indicate the place where a person resides or carries out his usual occupation.”
Information on the authorities and organs that are put in place within the legal system of State parties to authorize and exercise control over such interference, in accordance with the law, should be included in State reports.
It is also recommended that “States should indicate in their reports the laws and regulations that govern authorized interferences with private life…relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted,” and the way it is to be carried out.
“Compliance with article 17 requires that the integrity and confidentiality of correspondence should be guaranteed de jure and de facto. Correspondence should be delivered to the addressee without interception and without being opened or otherwise read.”
“Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited.”
Searches of a person’s home as well as body searches should not be allowed to amount to harassment, and should be “carried out in a manner consistent with the dignity of the person who is being searched.”
“Effective measures have to be taken by States to ensure that information concerning a person’s private life,” for example a banking statement, “does not reach the hands of persons who are not authorized by law to receive, process and use it, and is never used for purposes incompatible with the Covenant.”
State reports should include information on “what extent the honor or reputation of individuals is protected by law and how this protection is achieved according to their legal system.”
General Comment No.17 (04/07/1989) on Rights of the Child (Article 24)
With regards to the right of the child, the Committee notes that State reports “often seem to underestimate this obligation and supply inadequate information on the way in which children are afforded enjoyment of their right to a special protection.” The Committee underlines that as individuals, children benefit from all the rights that are enumerated in the Covenant, or that the protections they are entitled is not limited to the provisions of article 24. For instance, “some provisions of the Covenant expressly indicate to States measures to be adopted with a view to affording minors greater protection than adults,” and in particular the right to life prohibits imposing the death penalty on persons under 18 years old. While every State party is free to decide what measures they would adopt in way of providing protections for children, such measures could be economic, social, and cultural.
The Committee highlights that “every possible economic and social measure should be taken to reduce infant mortality and to eradicate malnutrition among children and to prevent them from being subjected to acts of violence and cruel and inhuman treatment, or from being exploited by means of forced labour or prostitution, or by their use in the illicit trafficking of narcotic drugs, or by any other means.”
Examples of cultural measures include the provision of education, and the Committee finds it particularly relevant that State reports should include “information on measures adopted to ensure that children do not take a direct part in armed conflicts.”
Reports should indicate the age in each State party at which a child: 1) attains his majority in civil matters 2) assumes criminal responsibility, 3) becomes legally entitled to work and treated as an adult under labor law, and 4) becomes entitled to the protections under article 10 with regards to dignified and humane treatment when deprived of liberty.
In accordance with article 24, measures should be taken to remove discrimination “in every field, including inheritance, particularly as between children who are national and children who are aliens or as between legitimate children and children born out of wedlock.”
“Responsibility for guaranteeing children the necessary protection lies with the family, society and the State.”
A child’s right to be “registered immediately after birth and to have a name” (article 24 (2)), should, in view of the Committee “be interpreted as being closely linked to the provision concerning the right to special measures of protection and it is designed to promote recognition of the child’s legal personality…to reduce the danger of abduction, sale of or traffic in children, or other types of treatment that are incompatible” with the enjoyment of Covenant rights.
“States are required to adopt every appropriate [non-discriminatory] measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born.”
General Comment No. 18 (11/10/1989) on Non-discrimination
In this GC, the Committee highlights the general provisions in the Covenant that are related to non-discrimination, with the main ones being those of articles 2, 3, 4, 6, 10, 14, 20, 23, 24, 25, 26. “It is for the State parties,” states the Committee, “to determine appropriate measures to implement the relevant provisions. However, the Committee is to be informed about the nature of such measures and their conformity with the principles of non-discrimination and equality before the law and equal protection of the law.” While the term “discrimination” is not clearly defined in the Covenant, nor is it clearly indicated what constitutes discrimination, the Committee is of the view that “the term ‘discrimination’ as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.” This GC also references definitions of discrimination found in other conventions, such as the definition of “racial discrimination” in article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination and the definition of “discrimination against women” found in article 1 of the Convention on the Elimination of All Forms of Discrimination against Women.” The following points are of particular importance:
The “enjoyment of rights and freedoms on an equal footing…does not mean identical treatment in every instance.” For example, with regards to article 6(5), the death sentence is not to be imposed on persons below 18 years of age, and on pregnant women. Additionally, in some cases, States are under an obligation to segregate, such as between juveniles and adults (Article 10 (3)); and in the provision of certain political rights they are allowed to discriminate i.e. on grounds of citizenship (Article 25).
Reports should also indicate if there exists any evidence of discrimination in fact, in addition to discrimination in law, “which maybe practiced either by public authorities, by the community, or by private persons or bodies. The Committee wishes to be informed about legal provisions and administrative measures directed at diminishing or eliminating such discrimination.”
Affirmative action could sometimes be required in order to grant “certain preferential treatment in specific matters as compared with the rest of the population…as long as such action is needed to correct discrimination in fact…”
Article 26 “prohibits discrimination in law or in fact in any field regulated and protected by public authorities…; the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant.”
“[N]ot every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.”
General Comment No. 19 (07/27/1990) on Protection of the Family, the Right to Marriage and Equality of the Spouses (Article 23)
The provisions of this article (23) are linked in GC No.19 to those of article 17, which “establishes a prohibition on arbitrary or unlawful interference with the family.” It is to the disappointment of the Committee that States parties “often fail to give enough information on how the State and society are discharging their obligation to provide protection to the family and the persons composing it.” While noting that “family” as a concept “differs in some respects from State to State, and even from region to region within a State…the Committee emphasizes that, when a group of persons [even unmarried couples and their children] is regarded as a family under the legislation and practice of a State, it must be given the protection referred to in article 23.” In addition to the obligation on State parties to adopt legislative measures, “the Covenant also recognizes the right of the family to protection by society,” and in its report, a State party “should indicate how the necessary protection is granted to the family by the State and other social institutions, whether and to what extent the State gives financial or other support to the activities of such institutions, and how it ensures that these activities are compatible with the Covenant.”
Social factors such as “degree of kinship or mental capacity” as well as any other “impediments to the exercise of the right to marry” such as age, should be pointed out in State reports, in a compatible fashion with “the full exercise of the other rights guaranteed by the Covenant,” i.e. the right to freedom of thought, conscience and religion.
It is incompatible with the Covenant to require that “a marriage, which is celebrated in accordance with religious rites, be conducted, affirmed or registered also under civil law.”
State parties are under the obligation to adopt “appropriate measures, both at the internal level and as the case may be, in cooperation with other States, to ensure the unity or reunification of families, particularly when their members are separated for political, economic or similar reasons.”
The Committee underlines that, in particular, “no sex-based discrimination should occur in respect of the acquisition or loss of nationality by reason of marriage. Likewise, the right of each spouse to retain the use of his or her original family name or to participate on an equal basis in the choice of a new family name should be safeguarded.”
The equality between the spouses in marriage “extends to all matters arising from their relationship, such as choice of residence, running of the household, education of the children and administration of assets. Such equality continues to be applicable to arrangements regarding legal separation or dissolution of the marriage.” States reports should particularly include information on “the provision made for the necessary protection of any children at the dissolution of a marriage or on the separation of the spouses.”
General Comment No. 20 (03/10/1992) on Prohibition of Cruel Treatment or Punishment (Article 7) [i]
In reflecting on and further developing GC No.7 (1982), the Committee here highlights that the provisions of article 7 are “complemented by the positive requirements of article 10, paragraph 1 of the Covenant, which stipulates that ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” This is a non-derogable right that allows no limitations even in times of public emergency. “No justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any reasons, including those based on an order from a superior officer or public authority.” The Committee is of the view that the provisions in article 7 “relate not only to acts that cause physical pain but also to acts that cause mental suffering to the victim.” Additionally, “the prohibition must extend to corporal punishment, including excessive chastisement ordered as punishment for a crime or as an educative or disciplinary measure.” Particular protection is to be given to children, pupils, and patients in teaching and medical institutions.
“[P]rolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7.”
While highlighting that article 6 limits the application of the death penalty to “the most serious crimes,” the Committee indicates that even in such cases the death penalty “must be carried out in such a way as to cause the least possible physical and mental suffering.”
With regards to the prohibition of medical or scientific experimentation, special protection should be extended to “persons not capable of giving valid consent, and in particular those under any form of detention or imprisonment.”
What is underlined by this article should not only be prohibited by State parties, but they are also under the obligation “not [to] expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”
Information should be enclosed in State reports about the instructions and training given to “enforcement personnel, medical personnel, police officers and any other persons involved in the custody or treatment of any individual subjected to any form of attest, detention or imprisonment.” Specific details about detention facilities, interrogation and interrogation rules and instructions should also be provided in accordance with GC No.20, paragraph 11.
“Those who violate article 7, whether by encouraging, ordering, tolerating or perpetrating prohibited acts, must be held responsible. Consequently, those who have refused to obey orders must not be punished or subjected to any adverse treatment.”
This article should be read in conjunction with article 2 (3). For instance “Complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective.” Information on remedies available to victims should be provided in State reports, along with “statistics on the number of complaints and how they have been dealt with.”
With regards to amnesty in respect of acts of torture, the Committee underlines that “Amnesties are generally incompatible with the duty of states to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future.”
General Comments 21-25 (1992 - 1996):
General Comment No. 21 (4/10/1992) on Humane Treatment of Persons Deprived of Liberty (Article 10)[i]
In reflecting on and further developing GC No.9, the Committee extends the protections of article 10 “to any one deprived of liberty under the laws and authority of the State who is held in prisons, hospitals – particularly psychiatric hospitals – detention camps or correctional institutions or elsewhere.” This right entails a positive obligation; “not only may persons deprived of their liberty not be subjected to treatment that is contrary to article 7, including medical or scientific experimentation, but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty.” Those deprived of their liberty still enjoy “all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment.” Reports of State parties could include information on the application of relevant UN standards, such as the Standard Minimum Rules for the Treatment of Prisoners (1957), the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), the Code of Conduct for Law Enforcement Officials (1978) and the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1982).
In their reports, State parties should provide information “concerning the system for supervising penitentiary establishments, the specific measures to prevent torture and cruel, inhuman or degrading treatment, and how impartial supervision is ensured.”
Applicable provisions should form “an integral part of the instruction and training of the personnel who have authority over persons deprived of their liberty,” and must be strictly adhered to by those personnel “in the discharge of their duties.”
“No penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner. States parties are invited to specify whether they have a system to provide assistance after release and to give information to its success.”
Specific information should be provided “concerning the measures taken to provide teaching, education and re-education, vocational guidance and training and also concerning work programmes for prisoners inside the penitentiary establishment as well as outside.”
Information should also be provided “on the specific measures applied during detention, e.g. how convicted persons are dealt with individually and how they are categorized, the disciplinary system, solitary confinement and high security detention and the conditions under which contacts are ensured with the outside world.”
For full implementation of article 10, the limits of juvenile age is to be decided by each state party “in the light of relevant social, cultural, and other conditions;” however, “the Committee is of the opinion that article 6, paragraph 5, suggests that all persons under the age of 18 should be treated as juveniles, at least in matters relating to criminal justice.” Of special relevance is the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, which are better known as the Beijing Rules (1985).[ii]
General Comment No. 22 (7/30/1993) on The Right to Freedom of Thought, Conscience and Religion (Article 18) (CCPR/C/21/Rev.1/Add.4)
This is an individual as well as a group right, which in accordance with article 4.2 of ICCPR, “cannot be derogated from, even in time of public emergency.” The provisions of article 18 also “protect theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief.” As is stated in article 17 and article 18.2, “no one can be compelled to reveal his thoughts or adherence to a religion or belief.”
Worship as a concept “extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest.” This does not exclude “the observance of dietary regulations, the wearing of distinctive clothing or headcoverings, participation in rituals associated with certain stages of life…the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools, and the freedom to prepare and distribute religious texts or publications.”
Paragraph 2 of this article “bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or convert.”
With regards to the teaching of religion at schools, it is noted “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.”
All provisions of this article except for “the freedom from coercion to have or to adopt a religion or belief and the liberty of parents and guardians to ensure religious and moral education,” maybe restricted in accordance with a strict interpretation of paragraph 3 of this article “to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.” At the same time, such limitations and restrictions “may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated.”
Restrictions based on morals, which are usually specific to particular social, philosophical and religious traditions, “must be based on principles not deriving exclusively from a single tradition.”
Certain measures such as those “restricting eligibility for government service to members of the predominant religion or giving economic privileges to them or imposing special restrictions on the practice of other faiths, are not in accordance with the prohibition of discrimination based on religion or belief and the guarantee of equal protection under article 26.”
No acts of violence, discrimination, or persecution against religious minorities groups shall be permitted; measures to protect religious minority groups shall be taken.
Despite the fact that the ICCPR does not refer to the right to conscientious objection to compulsory military service, “the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief.”
General Comment No. 23 (4/08/1994) on The Rights of Minorities (Article 27)(CCPR/C/21/Rev.1/Add.5)
In view of the Committee “this article establishes and recognizes a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant.” This right should not, notes the Committee, be confused with the right to self-determination of article 1. “The Covenant draws a distinction between the right to self-determination and the rights protected under article 27. The former is expressed to be a right belonging to peoples and is dealt with in a separate part (Part I) of the Covenant.” In other words, “[s]elf-determination is not a right cognizable under the Optional Protocol. Article 27, on the other hand, relates to rights conferred on individuals as such and is included, like the articles relating to other personal rights conferred on individuals, in Part III of the Covenant and is cognizable under the Optional Protocol.”[iii]
While the enjoyment of the rights that are enumerated in this article shall not infringe upon the territorial sovereignty of a state, “one or other aspects of the rights of individuals protected under that article – for example, to enjoy a particular culture – may consist in a way of life which is closely associated with territory and use of its resources.[iv] This may particularly be true of members of indigenous communities constituting a minority.”
The obligation not to discriminate in article 2.1 and 26 “applies to all individuals within the territory or under the jurisdiction of the State whether or not those persons belong to a minority.”[v]
The right to “equality before the law, equal protection of the law, and non-discrimination in respect of rights granted and obligations imposed by the State,” in accordance with article 26, “governs the exercise of all rights, whether protected under the Covenant or not, which the State party confers by law on individuals within its territory or under its jurisdiction, irrespective of whether they belong to the minorities specified in article 27 or not.”
The individuals designed to be protected under article 27 “need not be citizens of the State party.” In accordance with article 2.1, a State party is required “to ensure that the rights protected under the Covenant are available to all individuals within its territory and subject to its jurisdiction, except rights which are expressly made to apply to citizens, for example, political rights under article 25.” They also do not need to be permanent residents in the relevant State party.
“The right of individuals belonging to a linguistic minority to use their language among themselves, in private or in public, is distinct from other language rights protected under the Covenant.” This is not the same as the right to freedom of expression under article 19, which is “available to all persons, irrespective of whether they belong to minorities or not.” This right is also not the same as that of article 14.3 (f), which “confers on accused persons [the right] to interpretation where they cannot understand or speak the language used in the courts.”[vi] That article does not grant, under any circumstance, the accused “the right to use or speak the language of their choice in court proceedings.”
Positive measures of protection, in accordance with the provisions of this article as well as those of articles 2.1 and 26, are “required not only against the acts of the State party itself…, but also against the acts of other persons within the State party.” Such measures “may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with the other members of the group.”
In view of the Committee, “culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law.”[vii]
The exercise of article 27’s rights is not to undermine any other rights that are enumerated in the Covenant, and the protection of the rights of this article must be carried out “as such and should not be confused with other personal rights conferred on one and all under the Covenant.”
General Comment No.24 (11/04/1994) on Issues Relating to Reservations made Upon Ratification or Accession to the Covenant or the Optional Protocol thereto, or in relation to declarations under article 41 of the Covenant (CCPR/C/21/Rev.1/Add.6)
By November 1, 1994, 150 reservations “of varying significance” were made by 46 of the 127 State parties “to their acceptance of the obligations of the Covenant.” The Committee is of the general view that “[t]he number of those reservations, their content and their scope may undermine the effective implementation of the Covenant and tend to weaken respect for the obligations of State parties.” Therefore, in this GC the Committee sets forth the general guidelines for how and when a reservation could be made, “the issues of international law and human rights policy that arise,” and the role of the Committee itself with regards to reservations.
The Covenant and its first Optional Protocol “neither prohibit reservations nor mentions any type of permitted reservations.” This makes the matter of reservations under the Covenant and its first Optional Protocol one that is governed by international law and the guidance of the Vienna Convention on the Law of Treaties (VCLT).[viii]
In accordance with article 19 (3) of VCLT, “a State may make a reservation provided that it is not incompatible with the object and purpose of the treaty.” Despite the lack of a specific reference in the Covenant to the object and purpose test, “that test governs the matter of interpretation and acceptability of reservations.”
The Committee highlights “[t]he object and purpose of the Covenant is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken.” For instance, a State party may not make a reservation on its obligation “to take the necessary steps at the domestic level to give effect to the rights of the Covenant;” those are the supportive guarantees that are essential to the object and purpose of the Covenant. Additionally, the monitoring role of the Committee cannot be reserved on, a state may not reject the obligation to submit the required periodic reports, and a reservation “that rejects the Committee’s competence to interpret the requirements of any provisions of the Covenant would also be contrary to the object and purpose of that treaty.”
Reservations on the provisions of the Covenant that are part of customary international law or “a fortiori…have the character of peremptory norms,” are not permitted. Such provisions include, among others, the prohibition of torture, slavery, cruel, inhuman or degrading treatment or punishment.[ix]
With regards to non-derogable rights, a list of which is provided in Ch.1, the Committee states that “[w]hile there is no automatic correlation between reservations to non-derogable provisions, and reservations which offend against the object and purpose of the Covenant, a State has a heavy onus to justify such a reservation.” This is not to undermine the fact that some non-derogable rights cannot be reserved because of their status as peremptory norms i.e. the prohibition of torture.[x] Further, a reservation on certain non-derogable rights is not permissible because without them there would be no rule of law i.e. a reservation to the provisions of article 4 “which precisely stipulates the balance to be struck between the interests of the State and the rights of the individual in times of emergency.”
“Reservations often reveal a tendency of States not to want to change a particular law. And sometimes that tendency is elevated to a general policy. Of particular concern,” highlights the Committee, “are widely formulated reservations which essentially render ineffective all Covenant rights which would require any change in national law to ensure compliance with Covenant obligations.”
As an international treaty in and by itself, the first Optional Protocol has the object and purpose “to recognize the competence of the Committee to receive and consider communications from individuals who claim to be victims of a violation by a State party of any of the rights in the Covenant.” As such, “a reservation to an obligation of a State to respect and ensure a right contained in the Covenant, made under the first Optional Protocol when it has not previously been made in respect of the same rights under the Covenant, does not affect the State’s duty to comply with its substantive obligation.”
Since the object and purpose of the first Optional Protocol “is to allow the rights obligatory for a State under the Covenant to be tested before the Committee, a reservation that seeks to preclude this would be contrary to the object and purpose of the first Optional Protocol, even if not of the Covenant.”
Further, making a reservation “to a substantive obligation…for the first time under the first Optional Protocol would seem to reflect an intention by the State concerned to prevent the Committee from expressing its views relating to a particular article of the Covenant in an individual case.”
In view of the Committee, any “reservations” made in regards to its rules of procedure and the required procedures under the first Optional Protocol are “most usually a statement consistent with its normal competence ratione temporis,” not a reservation. “At the same time, the Committee has insisted upon its competence, even in the face of such statements or observations, when events or acts occurring before the date of entry into force of the first Optional Protocol have continued to have an effect on the rights of a victim subsequent to that date.”
As the most basic obligation is “to secure independent third party review of the human rights of individuals, the Committee has, where the legal right and the subject-matter are identical under the Covenant and under another international instrument, viewed such a reservation as not violating the object and purpose of the first Optional Protocol.”
“The primary purpose of the Second Optional Protocol is to extend the scope of the substantive obligations undertaken under the Covenant, as they relate to the right to life, by prohibiting execution and abolishing the death penalty.” Article 2 of Optional Protocol 2 outlines the types of reservations that are permitted under this protocol.[xi]
Article 20.4 of the VCLT “provides for the possibility of a State to object to reservations made by other States.” While this is based on the presumption of inter-state reciprocity since “a reservation precludes the operation, as between the reserving and other States, of the provision reserved,” the Committee holds the view that those provisions of the VCLT “are inappropriate to address the problem of reservations to human rights treaties. Such treaties, and the Covenant specifically,” underlines the Committee, “are not a web of inter-State exchanges of mutual obligations. They concern the endowment of individuals with rights.” Therefore, “[t]he principle of inter-State reciprocity has no place, save perhaps in the limited context of reservations to declarations on the Committee’s competence under article 41.” However, the Committee still considers that “an objection to a reservation made by States may provide some guidance to the Committee in its interpretation as to its compatibility with the object and purpose of the Covenant.”
While considering the determination of whether a specific reservation “is compatible with the object and purpose of the Covenant” one of its primary tasks, the Committee establishes that “[i]n order to know the scope of its duty to examine a State’s compliance under article 40 or a communication under the first Optional Protocol…[it] has necessarily to [also] take a view on the compatibility of a reservation with the object and purpose of the Covenant and with general international law.”
Reservations cannot be general; they “must refer to a particular provision of the Covenant and indicate in precise terms its scope in relation thereto.”
“Reports to the Committee should contain information on what action has been taken to review, reconsider or withdraw reservations.”
General Comment No. 25 (7/12/1996) On The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service (Article 25)(CCPR/C/21/Rev.1/Add.7)
In juxtaposition to the rest of the rights and freedoms in the Covenant, article 25 “protects the rights of ‘every citizen,’” as opposed to every individual within the territory of a State party and subject to its jurisdiction. It is left up to the State party to decide whether those rights could be enjoyed on a limited basis by any other groups, such as permanent residents, i.e. by granting them the right to hold public positions. The Committee underlines that should there be any conditions placed on the exercise of those rights, such conditions need to be based on “objective and reasonable criteria” i.e. requiring a higher age for the right to vote.
To fulfill the provisions of paragraph a), powers allocation “and the means by which individual citizens exercise the right to participate in the conduct of public affairs [as] protected by article 25 should be established by the constitution and other laws.”
In accordance with the right of “direct participation” in public life in paragraph b), a citizen may take part in popular assemblies which “have the power to make decisions about local issues or about the affairs of a particular community and in bodies established to represent citizens in consultation with government.”
With regards to participation through “freely chosen representatives,” this has to be exercised through elections that are carried out in accordance with laws that are compatible with paragraph b). Citizens should also be allowed to have free dialogue and to engage in public debate with their representatives.
Elections must be carried out “at intervals which are not unduly long and which ensure that the authority of government continues to be based on the free expression of the will of electors.”
While it is reasonable to restrict the right to vote based on age, unreasonable grounds for such restrictions include physical disability, party membership or literacy, and educational or property requirements.
“Any abusive interference with registration or voting as well as intimidation or coercion of voters should be prohibited by penal laws and those laws should be strictly enforced. Freedom of expression, assembly and association are essential conditions for the effective exercise of the right to vote and must be fully protected.”[xii]
State reports should indicate all positive measures they are adopting to implement the right to vote and the right to stand as a candidate in an election, and how obstacles to the full exercise of those rights have been overcome. Legislative grounds for depriving a citizen of their right to vote, or which exclude any group or category of persons from elective offices, or thereby allow for their removal from office, should also be explained.
Keeping in mind paragraph 1 of article 5 of the Covenant, “political opinion may not be used as a ground to deprive any person of the right to stand for election.” The conditions for holding and getting nominated to elective public office should be indicated in State reports, along with “any limitations and qualifications which apply to particular offices” and “the legal grounds and procedure for the removal of elected office holders.” Further, “any rights recognized and protected by article 25 may not be interpreted as implying a right to act or as validating any act aimed at the destruction or limitation of the rights and freedoms protected by the Covenant to a greater extent than what is provided for in the present Covenant.”
Paragraphs 19-22 of GC No.25 outline a number of guarantees and positive measures that should be adopted for the effective exercise of voting rights. For instance, the Committee highlights that “[a]n independent electoral authority should be established to supervise the electoral process and to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant.” Those measures as well as others adopted to “guarantee genuine, free and periodic elections” should be reported in full details in State reports.
In order to ensure access to public service positions on general terms of equality, “the criteria and processes for appointment, promotion, suspension and dismissal must be objective and reasonable,” and affirmative measures should be adopted to that end. For instance, “[b]asing access to public service on equal opportunity and general principles of merit, and providing secured tenure, ensures that persons holding public service positions are free from political interference or pressures.” All such criteria and measures should be explained in State reports.
In order to ensure “the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives,” independent and free media should be established and “the full enjoyment and respect for the rights guaranteed in articles 19, 21, and 22 of the Covenant, including freedom to engage in political activity individually or through political parties and other organizations…,” should be achieved.
General Comments 26-30 (1997 - 2002):
General Comment No.26 (12/08/1997) On Continuity of Obligations (CCPR/C/21/Rev.1/Add.8/Rev.1)
In this GC, the Committee addresses the issue of termination, denunciation, or withdrawal of a State party of/from its obligations under the Covenant. Giving the lack of provisions in the Covenant in this regards, the Committee has considered the issue in accordance with applicable rules of customary international law reflected in the Vienna Convention on the Law of Treaties.
ICCPR “is not subject to denunciation or withdrawal unless it is established that the parties intended to admit the possibility of denunciation or withdrawal or a right to do so is implied from the nature of the treaty.” However, the drafters of the Covenant “deliberately intended to exclude the possibility of denunciation,” and the Covenant itself “is not the type of treaty which, by its nature, implies a right of denunciation.”
Article 41 (2), “does permit a State party to withdraw its acceptance of the competence of the Committee to examine inter-State communications.”
The first Optional Protocol allows its State parties to denounce it.
In view of the Human Rights Committee, “once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding change in government of the State party.” This is also not affected by a situation of dismemberment of a State party, succession, or “action of the State party designed to divest them of the rights guaranteed by the Covenant.”
In Conclusion, “international law does not permit a State which has ratified or acceded or succeeded to the Covenant to denounce it or withdraw from it.”
General Comment No.27 (11/02/1999) on Freedom of Movement (Article 12), Adopted Under Article 40, Paragraph 4 (CCPR/C/21/Rev.1/Add.9)
The Committee highlights that the rights that are guaranteed under article 12 must be protected “not only from public but also from private interference.” Any limitations placed on the exercise of those rights “must not nullify the principle of liberty of movement,” and must be “governed by the requirement of necessity provided for in article 12, paragraph 3, and by the need for consistency with the other rights recognized in the Covenant.”[i] The main components of this right are:
liberty of movement while lawfully within the territory of a State party, to choose one’s place of residence. In the case of women, this is not to be made subject “by law or practice, to the decision of another person, including a relative.” This also implies the need for providing “protection against all forms of forced displacement…, preventing the entry or stay of persons in a defined part of the territory,” and in some circumstances article 9 with regards to lawful detention and article 12 come into play together.[ii] In particular, the Committee “has criticized provisions requiring individuals to apply for permission to change their residence or to seek the approval of the local authorities of the place of destination, as well as delays in processing such written applications.”[iii]
The freedom to leave any country, including one’s own, and to choose freely the State of destination.[iv] This may not be dependent “on any specific purpose or on the period of time the individual chooses to stay outside the country.” In the case of aliens “being legally expelled from the country,” they are “entitled to elect the State of destination, subject to the agreement of that State.” Additionally, this implies the right to acquire appropriate travel documents, or a passport, from the State of origin. In other words, the obligations under this article are imposed both on the State of residence and on the State of nationality.[v] “It is no justification for the State to claim that its national would be able to return to its territory without a passport.” State reports should include information on “all legal and practical restrictions on the right to leave which they apply both to nationals and foreigners, in order to enable the Committee to assess the conformity of these rules and practices with article 12, paragraph 3.” Other essential information include those on “measures that impose sanctions on international carriers which bring to their territory persons without required documents, where those measures affect the right to leave another country.”
The right to enter one’s own country. This also implies the right of a person to choose to remain in his/her own country, and includes the right to arrive at one’s own country for the first time if born outside the country. Of particular importance is the right to return for refugees seeking voluntary repatriation, and this right “implies prohibition of enforced population transfers or mass expulsions to other countries.” Here, the Committee clarifies that the scope of “his own country” in article 12.4 is “broader than the concept ‘country of his nationality.’ It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien.”[vi] A broader interpretation as permitted by article 12.4, “might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence.” In view of the Committee “there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country.”
In additions, the Committee in this general comment clarifies the following:
In conformity with the general conditions for limiting ICCPR rights as explained in Ch.1, as well as the provisions of article 12, paragraph 3, the right to freedom of movement may be restricted “only to protect national security, public order…, public health or morals and the rights and freedoms of others.” Such restrictions, highlights the Committee, “must be provided by law, must be necessary in a democratic society for the protection of these purposes and must be consistent with all other rights recognized in the Covenant,” for instance, with regards to the provisions of non-discrimination in article 2.
In drafting a law “providing for restrictions permitted by article 12, paragraph 3, “States should always be guided by the principle that the restrictions must not impair the essence of the right…; the relation between right and restriction, between norm and exception, must not be reversed.” Furthermore, this needs to be carried out in accordance with “precise criteria and may not confer unfettered discretion on those charged with their execution.” For instance, “[t]he application of restrictions in any individual case must be based on clear legal grounds and meet the test of necessity and the requirements of proportionality.”[vii]
Generally speaking, “[r]estrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.” Proportionality needs to be respected in drafting the restrictive laws as well as in applying those laws by the appropriate administrative and judicial authorities.
General Comment No. 28 (03/29/2000) on Equality of Rights between Men and Women (Article 3) (CCPR/C/21/Rev.1/Add.10)
This general comment has replaced GC No. 4 of 1981, with the aim of taking into account the important impact of article 3 “on the enjoyment by women of the human rights protected under the Covenant.” State parties should ensure, by taking all necessary steps, the equal enjoyment by all individuals, men and women, of all the rights enumerated in the Covenant. “These steps include the removal of obstacles to the equal enjoyment of such rights, the education of the population and of State officials in human rights, and the adjustment of domestic legislation so as to give effect to the undertakings set forth in the Covenant.” Positive measures “to achieve the effective and equal empowerment of women” should also be adopted, and information regarding “the actual role of women in society” need to be given to the Committee in State reports, “so that the Committee may ascertain what measures, in addition to legislative positions, have been or should be taken to give effect to these obligations, what progress has been made, what difficulties are encountered and what steps are being taken to overcome them.” In order to gain a complete picture of “the situation of women in each State party…this general comment identifies some of the factors affecting the equal enjoyment by women of the rights under the Covenant and spells out the type of information that is required with regard to these rights.”
State parties need to ensure that “traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right to equality before the law and to equal enjoyment of all Covenant rights,” and they should indicate the measures they have taken or they intend to take to overcome such obstacles.
Derogatory measures adopted in times of public emergency in accordance with article 4 should not be discriminatory and should ensure that “equal enjoyment of human rights by women” is not affected. In particular, in times of internal or international armed conflicts,” measures should be taken and reported to the Committee “to protect women from rape, abduction and other forms of gender-based violence.”
The Committee highlights that in accordance with article 5, “nothing in the Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights provided for in article 3, or at limitations not covered by the Covenant.” In particular, the Committee underlines that “there shall be no restriction upon or derogation from the equal enjoyment by women of all fundamental human rights recognized or existing pursuant to law, conventions, regulations or customs…”
In relation to the right to life of article 6, State parties need to indicate in their reports information about birth rates, on pregnancy, and on childbirth-related deaths of women. They shall also indicate the measures they have taken to ensure that women do not “undergo life-threatening clandestine abortions;” to provide access “to safe abortion to women who have become pregnant as a result of rape;” and to prevent “forced abortion or forced sterilization.”
In relation to article 7 and article 24, reports should include information “on national laws and practice with regard to domestic and other types of violence against women, including rape,” and where “the practice of genital mutilation exists, information on its extent and on measures to eliminate it should be provided.”
With regards to the provisions of article 8, States should report the measures taken to eliminate trafficking of women and children, to protect women and children from slavery “disguised, inter alia, as domestic or other kind of personal service,” and “to prevent the violation of women’s and children’s rights.”
The Committee highlights that special regulations for women’s clothing in public may violate many of the Covenant rights such as those of articles 26, 7, 9, 12, 17, 18, 19, and 27.[viii] Confining women within the house may also amount to “depriving women of their liberty on an arbitrary or unequal basis,” in accordance with article 9.
Equal and dignified treatment of women shall be ensured, particularly in regards to the fulfillment of articles 7 and 10 (in relation to the treatment of adult and juvenile women deprived of their liberty), article 12 (pertaining to the freedom of movement), article 13 (regarding the equal treatment of alien women), article 14 (relative to the right to a fair trial), article 16 (on the right to be recognized as a person before the law), article 17 and to a lesser extent articles 6 and 7 (on the right to privacy i.e. in relation to reproductive life), article 18 (with regards to the freedom of thought, conscience and religion), article 19 (relative to the freedom of expression and i.e. in this context, the restrictions placed on the publication and dissemination of pornographic materials), article 23 (on family, the equality between spouses and i.e the equal consent to marry), article 24 (regarding the equal protection of children, girls and boys), article 25 (concerning the participation in public life on equal basis), article 26 (on the right to equality before the law and freedom from discrimination even by private actors), and article 27 (in relation to the treatment of women belonging to minority groups).
Honor killings violate particularly articles 6, 14, and 26, especially when remaining unpunished.
General Comment No.29 (08/31/2001) on States of Emergency (Article 4) (CCPR/C/21/Rev.1/Add.11)[ix]
This GC states that on the one hand, article 4 “allows for a State party unilaterally to derogate temporarily from a part of its obligations under the Covenant. On the other hand, article 4 subjects both this very measure of derogation, as well as its material consequences, to a specific regime of safeguards.” Here, the Committee outlines general guidelines for the implementation of the provisions of article 4. For instances, two conditions must be satisfied in order for a state to be able to invoke article 4: “the situation must amount to a public emergency which threatens the life of the nation, and the State party must have officially proclaimed a state of emergency.” In such a situation, highlights the Committee, “States must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers.” At times of international or non-international armed conflict “rules of international humanitarian law become applicable and help, in addition to the provisions in article 4 and 5, paragraph 1, of the Covenant, to prevent the abuse of a State’s emergency powers.” Derogating from the Covenant is allowed in such a situation “only if and to the extent that the situation constitutes a threat to the life of the nation,” and the derogation measures have to be “of an exceptional and temporary nature.”[x]
A fundamental requirement “for any measures derogating from the Covenant…is that such measures are limited to the extent strictly required by the exigencies of the situation.” This is in relation to “the duration, geographical coverage and material scope of emergency,” and a simple reflection of the principle of proportionality “which is common to derogation and limitation powers.”[xi] In other words, “no provision of the Covenant, however validly derogated from, will be entirely inapplicable to the behavior of a State party.”
State parties have to provide “carful justification not only for their decision to proclaim a state of emergency, but also for any specific measures based on such a proclamation.” Again, the situation has to amount to “a threat to the life of the nation” and the derogation measures need to be “strictly required by the -exigencies of the situation.”[xii]
The Committee is of the view that limiting the provision of certain rights i.e. the freedom of movement (article 12) or the freedom of assembly (article 21) is sufficient and “no derogation from the provisions in question would be justified by the exigencies of the situation.” In other words, the issue of “permissibility of restrictions is independent of the issue of derogability,” as it is still possible to limit the provision of a non-derogable right. A list of those non-derogable rights is given in article 4, paragraph 2.[xiii]
Even when derogations are allowed, States are under the obligation “to narrow down all derogations to those strictly required by the exigencies of the situation.”
“According to article 4, paragraph 1, one of the conditions for the justifiability of any derogation from the Covenant is that the measures taken do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” In fact, the Committee is of the opinion that “there are elements or dimensions of the right to non-discrimination that cannot be derogated from in any circumstances. In particular, this provision of article 4, paragraph 1, must be complied with if any distinctions between persons are made when resorting to measures that derogate from the Covenant.”
A second condition is that “no measure derogating from the provisions of the Covenant may be inconsistent with the State party’s other obligations under international law, particularly the rules of international humanitarian law,” which is also reflected in article 5, paragraph 2. Those other obligations are taken into consideration by the Committee when deciding on the admissibility of derogations. “Therefore, when invoking article 4, paragraph 1, or when reporting under article 40 on the legal framework related to emergencies, States parties should present information on their other international obligations relevant for the protection of the rights in question, in particular those obligations that are applicable in times of emergency.”[xiv] “[D]evelopments within international law as to human rights standards applicable in emergency situations,” should also be taken into account.[xv]
The question of non-derogability of certain rights, argues the Committee, “is related to but not identical with, the question whether certain human rights obligations bear the nature of peremptory norms of international law” (e.g. articles 6 and 7). At the same time, some provisions of the Covenant “were included in the list of non-derogable provisions because it can never become necessary to derogate from these rights during a state of emergency (e.g. articles 11 and 18).”
It is never permissible for State parties to invoke article 4 of the Covenant “as justification for acting in violation of humanitarian law or peremptory norms of international law.” In particular, this article may not be used as a justification, or as an exemption from criminal responsibility of state agents or other individuals committing crimes against humanity in times of public emergency.
In addition, “there are elements that in the Committee’s opinion cannot be made subject to lawful derogation under article 4.” This includes the humane and respectful treatment of all persons deprived of their liberty; “the prohibitions against taking of hostages, abductions or unacknowledged detention,” as norms of general international law; the protection of the rights of people belonging to minorities, which is “reflected in the prohibition against genocide in international law, in the inclusion of a non-discrimination clause in article 4 itself (paragraph 1), as well as in the non-derogable nature of article 18;” the prohibition of “forced displacement by expulsion or other coercive means from the area in which the persons concerned are lawfully present,” as confirmed by listing such acts in the Rome Statute’s list of crimes against humanity; the prohibition on a State party “to engage itself, contrary to article 20, in propaganda for war, or in advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence;” and finally certain elements and fundamental requirements of fair trial[xvi] that are “explicitly guaranteed under international humanitarian law during armed conflict.”[xvii]
No State party is permitted to derogate from its obligation under article 2, paragraph 3, “to provide remedies for any violation of the provisions of the Covenant,” as a “treaty obligation inherent in the Covenant as a whole.” Nor is it permissible to derogate from the obligation to provide procedural guarantees to protect the rights of the Covenant.
In accordance with article 4.3, a State derogating from the rights of the Covenant “must immediately inform the other State parties, through the United Nations Secretary-General, of the provisions it has derogated from and of the reasons for such measures.” This is essential for the Committee not only in carrying out its functions, “in particular in assessing whether the measures taken by the State party were strictly required by the exigencies of the situation, but also to permit other States parties to monitor compliance with the provisions of the Covenant.” This obligation to notify “applies equally in relation to the termination of derogation.”[xviii]
General Comment No. 30 (09/18/2002) on Reporting Obligations of States Parties under Article 40 of the Covenant (CCPR/C/21/Rev.2/Add.12)[xix]
State parties are under the obligation to submit reports in accordance with article 40 of the Covenant “within one year of its entry into force for the States parties concerned and, thereafter, whenever the Committee so requests.” As in GC No.1, which was written twenty years earlier, the Committee criticizes delays ranging from a few months to several years in the submission of those reports. Some States are still in default. Others announced “they would appear before the Committee but have not done so on the scheduled date.” In addressing this situation, the Committee envisages the following remedy:
If the Committee does not consider a report on a date initially scheduled, it may “notify the State party of the date on which it intends to consider the report.” Both cases would address the situation whereby a State submits a report and does not send a declaration to the Committee.
When a report is not submitted, the Committee “may, at its discretion, notify the State party of the date on which the Committee proposes to examine the measures taken by the State party to implement the rights guaranteed under the Covenant.” This could take place in the presence or absence of a representative delegation from the State party.
When a delegation is present, the Committee meets in public session, and it would meet in private if a delegation is not present.
Considerations of the report would be carried out in accordance with the reporting guidelines and the rules of procedure of the Committee.
A follow up procedure including the appointment of a follow-up Special Rapporteur would come into force following the adoption of the Committee’s concluding observations “to establish, maintain or restore a dialogue with the State party.”
General Comment No.31 (05/26/2004) on The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (CCPR/C/21/Rev.1/Add.13)[i]
This General Comment should be read in conjunction with GC No. 18 and GC No. 28 on the general non-discrimination provisions of article 2 on “the obligations of State Parties towards individuals as the right-holders under the Covenant.” Here it is stated that State parties have “a legal interest in the performance by every other State Party of its obligations.” “[T]he contractual dimension of the treaty involves any State Party to a treaty being obligated to every other State Party to comply with its undertakings under the treaty.” State Parties should not only make “the declaration contemplated in article 41,” but they should also avail themselves of the procedure under that article with regards to inter-state complaints. At the same time, “the article 41 procedure,” in view of the Committee, “should be seen as supplementary to, not diminishing of, States Parties’ interest in each other’s discharge of their obligations.”
In accordance with article 26 of the Vienna Convention on the Law of Treaties, “States Parties are required to give effect to the obligations under the Covenant in good faith.”
The Committee highlights that despite the fact “article 2, paragraph 2, allows States Parties to give effect to Covenant rights in accordance with domestic constitutional processes, the same principle operates so as to prevent States parties from invoking provisions of…domestic law…to justify a failure to perform or give effect to obligations under the treaty.” For instance, article 50 of the Covenant states that ICCPR’s provisions “shall extend to all parts of federal states without any limitations or exceptions.”
Article 2 has a positive and a negative legal dimension: “States Parties must refrain from violation of rights recognized by the Covenant, and any restrictions on any of those rights must be permissible under the relevant provisions of the Covenant…In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right.” On the positive end, State parties need to adopt “legislative, judicial, administrative, educative and other appropriate measures in order to fulfill their legal obligations. The Committee believes that it is important to raise levels of awareness about the Covenant not only among public officials and State agents but also among the population at large.”
The Committee is of the opinion that despite the fact the Covenant “cannot be viewed as a substitute for domestic criminal or civil law…the positive obligations on States Parties to ensure Covenant rights will only be fully discharged,” argues the Committee, “if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities.” In fact, the Covenant “itself envisages in some certain areas where there are positive obligations on States Parties to address the activities of private persons or entities.” For instance, the provisions of article 17 with regards to the right to privacy need to be protected by law.
Covenant rights are to be enjoyed by individuals. At the same time, many of the rights enumerated in the Covenant such as the freedom of manifesting one’s religion (article 18), the freedom of association (article 22), and the rights of members of minorities (article 27), “may be enjoyed in community with others.” In the opinion of the Committee, “[t]he fact that the competence of the Committee to receive and consider communications is restricted to those submitted by or on behalf of individuals (article 1 of the Optional Protocol), does not prevent such individuals from claiming that actions or omissions that concern legal persons and similar entities amount to a violation of their own rights.”
In accordance with article 2, paragraph 1, “a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.”[ii] The Committee stresses that this is the case, “regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.”
In times of armed conflict, both spheres of international humanitarian law and the International Covenant on Civil and Political Rights are complementary, “not mutually exclusive.”[iii]
Article 2 places States parties under the obligation to also “not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant…”
“Where there are inconsistencies between domestic law and the Covenant, article 2 requires that the domestic law or practice be changed to meet the standards imposed by the Covenant’s substantive guarantees.” This does not mean that the Covenant needs to be “directly applicable in the courts,” as a State party has the freedom to adopt the Covenant “in accordance with its own domestic constitutional structure.” At the same time, “[e]nhanced protection” is given to the provisions of the Covenant, “in those States where the Covenant is, automatically or through specific incorporation, part of the domestic legal order.”
Remedies for the protection of and giving effect to Covenant rights must be adopted immediately upon becoming a party to the Covenant. Those remedies need to be accessible to individuals and “should be appropriately adopted so as to take account of the special vulnerability of certain categories of person, including in particular children.”[iv] In case of a failure by a State Party to investigate allegations of violations this “could in and of itself give rise to a separate breach of the Covenant,” and the Committee is of the opinion that the “[c]essation of an ongoing violation is an essential element of the right to an effective remedy.”
Remedies imply the obligation that State Parties “make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals…the obligation to provide an effective remedy…is not discharged.” Generally speaking, besides the compensation mechanisms offered in articles 9.5 and 14.6, the Committee considers that “where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.” The aim is to prevent a recurrence of a violation.
State parties are under the obligation to investigate and to bring to justice those responsible about human rights violations; “failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant.”[v]
If public officials or State agents are involved in violations related to particularly article 7 (on torture and similar cruel, inhuman and degrading treatment), article 6 (on summary and arbitrary killing), and articles 6, 7, and 9 (relevant to enforced disappearances), “the States parties concerned may not relieve perpetrators from personal responsibility, as has occurred with certain amnesties…and prior legal immunities and indemnities…no official status justifies persons who may be accused of responsibility for such violations being held immune from legal responsibility.”
In view of the Committee, effective remedy “may in certain circumstances require States Parties to provide for and implement provisional or interim measures to avoid continuing violations and to endeavor to repair at the earliest possible opportunity any harm that may have been caused by such violations.” State parties are particularly requested by the Committee “to provide information on the obstacles to the effectiveness of existing remedies in their periodic reports.”
General Comment No.32 (08/23/2007) on The Right to Equality before Courts and Tribunals and to a Fair Trial (Article 14) (CCPR/C/GC/32)[i]
By replacing GC no. 13, the Committee underlines that “[t]he right to equality before the courts and tribunals and to a fair trial is a key element of human rights protection and serves as a procedural means to safeguard the rule of law. Article 14 of the Covenant,” states the Committee, “aims at ensuring the proper administration of justice, and to this end guarantees a series of specific rights.” The complex nature of this article combines “various guarantees with different scopes of application.” While State parties are obliged to report “on how these guarantees are interpreted in relation to their respective legal systems, the Committee notes that it cannot be left to the sole discretion of domestic law to determine the essential content of Covenant guarantees.” The following is a schematic illustration of the main clarifications that the Committee makes in this general comment.
It is possible to make reservations to particular elements of article 14, but “a general reservation to the right to a fair trial would be incompatible with the object and purpose of the Covenant.”[ii] On the issue of derogations, “States derogating from normal procedures required under article 14 in circumstances of a public emergency should ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation.” In particular, the guarantees of a fair trial under article 14 “may never be made subject to measures of derogation that would circumvent the protection of non-derogable rights.”[iii] Furthermore, “[d]eviating from fundamental principles of fair trial, including the presumption of innocence, is prohibited at all times.”[iv]
The guarantee of the right to equality before courts and tribunals must be “respected whenever domestic law entrusts a judicial body with a judicial task.”[v] This also guarantees the “equal access and equality of arms,[vi] and ensures that the parties to the proceedings in question are treated without any discrimination.”[vii]
Paragraph 3 (e) of this article provides an example of the application of the principle of equality of arms, which is that of guaranteeing “the right of accused persons to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them.” The Committee gives particular importance to this provisions, “for ensuring an effective defence by the accused and their counsel and thus guarantee[ing] the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution.” At the same time, this provision does not “provide an unlimited right to obtain the attendance of any witness requested by the accused or their counsel, but only a right to have witnesses admitted that are relevant for the defence, and to be given a proper opportunity to question and challenge witnesses against them at some stage of the proceedings.[viii]
Another aspect of the equality of arms in criminal proceedings is illustrated via paragraph 3 (f) of article 14, pertaining to the right “to have the free assistance of an interpreter if the accused cannot understand or speak the language used in court,” which in view of the Committee “arises at all stages of the oral proceedings,” and applies to aliens as well as to nationals.[ix]
Equality between the parties “applies also to civil proceedings, and demands, inter alia, that each side be given the opportunity to contest all the arguments and evidence adduced by the other party.”[x] Additionally, such equality “requires that similar cases are dealt with in similar proceedings. If for example, exceptional criminal procedures or specially constituted courts or tribunals apply in the determination of certain categories of cases, objective and reasonable grounds must be provided to justify the distinction.”[xi]
“Juveniles are to enjoy at least the same guarantees and protection as are accorded to adults under article 14 of the Covenant.” However, the Committee highlights in paragraph 42 of this general comments that juveniles still need special protections. “In criminal proceedings they should, in particular, be informed directly of the charges against them and, if appropriate, through their parents or legal guardians, be provided with appropriate assistance in the preparation and presentation of their defence…”[xii]
Criminal charges that entitle an individual to “a fair and public hearing by a competent, independent and impartial tribunal…relate in principle to acts declared to be punishable under domestic criminal law. The notion may also extend,” highlights the Committee, “to acts that are criminal in nature with sanctions that, regardless of their qualification in domestic law, must be regarded as penal because of their purpose, character or severity.”[xiii]
With regards to civil cases, the Committee points out that “the concept of a ‘suit at law’ or its equivalents in other language texts is based on the nature of the right in question rather than on the status of one of the parties or the particular forum provided by domestic legal systems for the determination of particular rights.”[xiv] In view of the Committee, this concept encompasses three different types of procedures: a) “judicial procedures aimed at determining rights and obligations pertaining to the areas of conduct, property and torts in the area of private law;” b) “equivalent notions in the area of administrative law such as the termination of employment of civil servants for other than disciplinary reasons, the determination of social security benefits, or the pension rights of soldiers, or procedures regarding the use of public land, or the taking of private property;”[xv] and c) it may cover “other procedures which, however, must be assessed on a case by case basis in the light of the nature of the right in question.”
The guarantee of access to courts shall be extended to all individuals within the territory of a State party, “regardless of their nationality or statelessness, or whatever their status, whether asylum seekers, refugees, migrant workers, unaccompanied children or other persons, who may find themselves in the territory or subject to the jurisdiction of the State party.”[xvi] Additionally, the guarantee in this article “prohibits any distinctions regarding access to courts and tribunals that are not based on law and cannot be justified on objective and reasonable grounds.”[xvii] In particular, this is in relation to access to first instance court procedures “and does not address the issue of the right to appeal or other remedies.”[xviii]
The right to access courts or tribunals “does not grant any entitlement to the person concerned.”[xix] In a suit at law, “there is no determination of rights and obligations” if the following applies: “where the persons concerned are confronted with measures taken against them in their capacity as persons subordinated to a high degree of administrative control, such as disciplinary measures not amounting to penal sanctions being taken against a civil servant, a member of the armed forces, or a prisoner.”[xx] Access to courts or tribunals, indicates the Committee, “does not apply to extradition, expulsion and deportation procedures. Although there is no right of access to a court or tribunal as provided for by article 14, paragraph 1, second sentence, in these and similar cases, other procedural guarantees may still apply.”[xxi]
A “tribunal” in article 14.1 is “a body, regardless of its denomination, that is established by law, is independent of the executive and legislative branches of government or enjoys in specific cases judicial independence in deciding legal matters in proceedings that are judicial in nature.” Access to such bodies for those who “have criminal charges brought against them…cannot be limited, and any criminal conviction by a body not constituting a tribunal is incompatible with this provision.” At the same time, the failure of a State party “to allow access to such a tribunal in specific cases would [only] amount to a violation of article 14,” in view of the Committee, “if such limitations are not based on domestic legislation, are not necessary to pursue legitimate aims such as the proper administration of justice, or are based on exceptions from jurisdiction deriving from international law such, for example, as immunities,” or in circumstances where “the access left to an individual would be limited to an extent that would undermine the very essence of the right.”
Article 14, paragraph 3 (d) “explicitly addresses the guarantee of legal assistance in criminal proceedings.” The Committee encourages State parties “to provide free legal aid in other cases, for individuals who do not have sufficient means to pay for it. In some cases they may even be obliged to do so,” i.e. when a person is sentenced to death.[xxii] In this regard, “the imposition of fees on the parties to proceedings that would de facto prevent their access to justice might give rise to issues under article 14, paragraph 1.”[xxiii]
The independence, competence, and impartiality of a tribunal “is an absolute right that is not subject to any exception.”[xxiv] “The requirement of independence,” states the Committee, “refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office.” Specific measures need to be taken with the aim of “guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution,” or the adoption thereof, “of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them.”[xxv] Dismissal of judges shall only be allowed “on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law.”[xxvi]
Impartiality as a requirement has two dimensions. 1) “judges must not allow their judgment to be influenced by personal bias or prejudice, nor harbor preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other;” and 2) “the tribunal must also appear to a reasonable observer to be impartial.”[xxvii]
“While the Covenant does not prohibit the trial of civilians in military or special courts, it requires that such trials are in full conformity with the requirements of article 14, and that its guarantees cannot be limited or modified because of the military or special character of the court concerned.”[xxviii] Further, this should be “exceptional, i.e. limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials.”[xxix]
·In the case of countries that “have resorted to special tribunals of ‘faceless judges,’ composed of anonymous judges, e.g. within measures taken to fight terrorist activities,” the Committee underlines that those courts “even if the identity and status of such judges has been verified by an independent authority, often suffer not only from the fact that the identity and status of the judges is not made known to the accused persons but also from irregularities such as exclusion of the public or even the accused or their representatives from the proceedings…” In other words, in view of the Committee, such tribunals “with or without faceless judges, in circumstances as these, do not satisfy basic standards of fair trial and, in particular, the requirement that the tribunal must be independent and impartial.”[xxx]
Even in cases where religious courts or courts based on customary law are entrusted with judicial tasks, “[i]t must be ensured that such courts cannot hand down binding judgments recognized by the State,” unless certain requirements are met, in addition to the general obligations under the Covenant relevant to the protection “of any persons affected by the operation of customary and religious courts.” For instance, “proceedings before such courts…[need to be] limited to minor civil and criminal matters, [and must] meet the basic requirements of fair trial and other relevant guarantees of the Covenant.” Additionally, “their judgments…[have to be] validated by State courts in light of the guarantees set out in the Covenant and can be challenged by the parties concerned in a procedure meeting the requirements of article 14 of the Covenant.”
The fairness of proceedings in accordance with article 14’s guarantee of a “fair and public hearing,” “entails the absence of any direct or indirect influence, pressure or intimidation or intrusion from whatever side and for whatever motive.”[xxxi] At the same time, the guarantee of procedural equality and fairness “cannot be interpreted as ensuring the absence of error on the part of the competent tribunal.”[xxxii]
The expeditiousness of a hearing is an important aspect of fairness. “While the issue of undue delays in criminal proceedings is explicitly addressed in paragraph 3 (c) of article 14, delays in civil proceedings that cannot be justified by the complexity of the case or the behavior of the parties detract from the principle of a fair hearing enshrined in paragraph 1 of this provision.”[xxxiii]
·All trials, civil or criminal, “must in principle be conducted orally and publicly,” in order to “ensure the transparency of proceedings and thus provide an important safeguard for the interest of the individual and of society at large.” Except for the particular circumstances that are highlighted by article 14, paragraph 1, “a hearing must be open to the general public, including members of the media, and must not, for the instance, be limited to a particular category of persons.”[xxxiv] This does not “necessarily apply to all appellate proceedings which may take place on the basis of written presentations, or to pre-trial decisions made by prosecutors and other public authorities.”[xxxv]
This article’s provision on “the presumption of innocence” is of particular importance. The Committee points out that in this regard, the presumption of innocence “imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of a criminal act must be treated in accordance with this principle.” In practical terms, the Committee clarifies that this means “abstaining from making public statements affirming the guilt of the accused. Defendants should normally not be shackled or kept in cages during trials or otherwise presented to the court in a manner indicating that they may be dangerous criminals.” It could also mean that the media “should avoid news coverage undermining the presumption of innocence…the length of pre-trial detention should never be taken as an indication of guilt and its degree, [and] the denial of bail or findings of liability in civil proceedings [shall] not affect the presumption of innocence.”[xxxvi]
“The right to be informed of the charge ‘promptly,’” which in view of the Committee applies to “all cases of criminal charges including those of persons not in detention, but not to criminal investigations preceding the laying of charges;” obliges that “information be given as soon as the person concerned is formally charged with a criminal offence under domestic law, or the individual is publicly named as such.”[xxxvii] This, clarifies the Committee, could be carried out orally or in writing “provided that the information indicates both the law and the alleged general facts on which the charge is based.”
It is clarified that “adequate time” in subparagraph 3 (b) for the accused to be able to prepare their defense and communicate with a counsel of their own choosing “depends on the circumstances of each case. If counsel reasonably feel that the time for the preparation of the defence is sufficient, it is incumbent on them to request the adjournment of the trial.”[xxxviii] In this regards, the Committee indicates that “a State party is not to be held responsible for the conduct of a defence lawyer, unless it was, or should have been, manifest to the judge that the lawyer’s behavior was incompatible with the interests of justice.”[xxxix] State parties must also ensure compliance with the requirement to “grant reasonable requests for adjournment, in particular, when the accused is charged with a serious criminal offence and additional time for preparation of the defence is needed.”[xl]
“Adequate facilities” is to be understood as including “access to documents and other evidence,” which must be inclusive of “all materials that the prosecution plans to offer in court against the accused or that are exculpatory. Exculpatory material should be understood as including not only material establishing innocence but also other evidence that could assist the defence (e.g. indications that a confession was not voluntary).”[xli]
“Counsel should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications.” Further, the Committee stresses that “lawyers should be able to advise and to represent persons charged with a criminal offence in accordance with generally recognized professional ethics without restrictions, influence, pressure or undue interference from any quarter.”[xlii]
The right of the accused to be tried without undue delay in accordance with article 14, paragraph 3 (c) must be assessed in accordance with “the circumstances of each case, taking into account mainly the complexity of the case, the conduct of the accused, and the manner in which the matter was dealt with by the administrative and judicial authorities.”[xliii] Further, it is worth noting that “This guarantee relates not only to the time between the formal charging of the accused and the time by which a trial should commence, but also the time until the final judgment on appeal. All stages, whether in first instance or on appeal must take place ‘without undue delay.’”[xliv]
As delineated in paragraphs 36-38 of this GC, paragraph 3 (d) of article 14 contains three distinctive guarantees. First, “the provision requires that accused persons are entitled to be present during their trial.”[xlv] Second, there are two types of defence, in person or through a legal counsel, that the accused of a criminal charge could resort to, and “which are not mutually exclusive.” Here, the Committee underlines that the “right to defend oneself without a lawyer is…not absolute. The interests of justice may, in the case of a specific trial, require the assignment of a lawyer against the wishes of the accused…”[xlvi] At the same time, it is highlighted that “any restriction of the wish of accused persons to defend themselves must have an objective and sufficiently serious purpose and not go beyond what is necessary to uphold the interests of justice.”[xlvii] Third, the provision “guarantees the right to have legal assistance assigned to accused persons whenever the interests of justice so require, and without payment by them in any such case if they do not have sufficient means to pay for it.” To this effect, the Committee indicates that “the gravity of the offence is important in deciding whether counsel should be assigned ‘in the interest of justice’ as is the existence of some objective chance of success at the appeals stage.”[xlviii] That said, “[u]nlike in the case of privately retained lawyers, blatant misbehavior or incompetence, for example the withdrawal of an appeal without consultation in a death penalty case…may entail the responsibility of the State concerned,” states the Committee, “for a violation of article 14, paragraph 3 (d), provided that it was manifest to the judge that the lawyer’s behavior was incompatible with the interests of justice.”[xlix]
Paragraph 3(g) “guarantees the right not to be compelled to testify against oneself or to confess guilt.” The Committee clarifies that this “must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt.”[l] The use of statements or confessions reached through actions contrary to article 7 of the Covenant is prohibited at all times, “except if such material is used as evidence that torture or other treatment prohibited by this provision occurred, and that in such cases the burden is on the State to prove that statements made by the accused have been given of their own free will.”[li]
The guarantee in article 14, paragraph 5 that “anyone convicted of a crime shall have the right to have their conviction and sentence reviewed by a higher tribunal according to law…, is not confined to the most serious offences.” Additionally, the Committee clarifies that the term “according to law” “relates to the determination of the modalities by which the review by a higher tribunal is to be carried out, as well as which court is responsible for carrying out a review in accordance with the Covenant.”[lii] At the same time, the Committee underlines despite the fact that this provision “does not require States parties to provide for several instances of appeal…the reference to domestic law in this provision is to be interpreted to mean that if domestic law provides for further instances of appeal, the convicted person must have effective access to each of them.”[liii] In cases where “the highest court of a country acts as first and only instance, the absence of any right to review by a higher tribunal is not offset by the fact of being tried by the supreme tribunal of the State party concerned; rather, such a system is incompatible with the Covenant, unless the State party concerned has made a reservation to this effect.”[liv]
It is highlighted that the provision of paragraph 5, “does not apply to procedures determining rights and obligations in a suit at law or any other procedure not being part of a criminal appeal process, such as constitutional motions.”[lv] Further, GC No.32, para. 50 states that “A system of supervisory review that only applies to sentences whose execution has commenced does not meet the requirements of article 14, paragraph 5, regardless of whether such review can be requested by the convicted person or is dependent on the discretionary power of a judge or prosecutor.”[lvi]
Paragraph 5 “imposes on the State party a duty to review substantively, both on the basis of sufficiency of the evidence and of the law, the conviction and sentence, such that the procedure allows for due consideration of the nature of the case.”[lvii] At the same time, this provision “does not require a full retrial or a ‘hearing’ as long as the tribunal carrying out the review can look at the factual dimensions of the case.”[lviii]
The provision of paragraph 5, highlights the Committee “is of particular importance in death penalty cases.” In this regard, the Committee indicates that “denial of legal aid by the court reviewing the death sentence of an indigent convicted person” violates both paragraph 3 (d) and paragraph 5 of this article as well as “effectively precludes an effective review of the conviction and sentence by the higher instance court.”[lix]
Based on article 14, paragraph 6, “compensation according to law shall be paid to persons who have been convicted of a criminal offence by a final decision and have suffered punishment as a consequence of such conviction, if their conviction has been reversed or they have been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice.”[lx] The Committee indicates that States parties should “enact legislation ensuring that compensation as required by this provision can in fact be paid and that the payment made within a reasonable period of time.”[lxi] At the same time, it is underlined that this provision does not apply “if it is proved that the non-disclosure of such a material fact in good times is wholly or partly attributable to the accused; in such cases, the burden of proof rests on the State.” Additionally, “no compensation is due if the conviction is set aside upon appeal, i.e. before the judgment becomes final, or by a pardon that is humanitarian or discretionary in nature, or motivated by considerations of equity, not implying that there has been a miscarriage of justice.”[lxii]
Paragraph 7 of article 14 “embodies the principle of ne bis in idem. This provision prohibits bringing a person, once convicted or acquitted of a certain offence, either before the same court again or before another tribunal again for the same offence.”[lxiii] At the same time, this provision “does not prohibit retrial of a person convicted in absentia who requests it, but applies to the second conviction.” Further, it is “not at issue if a higher court quashes a conviction and orders a retrial,”[lxiv] and it also does not prohibit “the resumption of a criminal trial justified by exceptional circumstances, such as the discovery of evidence which was not available or known at the time of the acquittal.” Additionally, it is only applicable to criminal cases, “and not to disciplinary measures that do not amount to a sanction for a criminal offence within the meaning of article 14 of the Covenant.”[lxv]
Paragraph 7 of article 14 does not “guarantee ne bis in idem with respect to the national jurisdictions of two or more States. This understanding should not, however, undermine efforts by States to prevent retrial for the same criminal offence through international conventions.”[lxvi]
“Repeated punishment of conscientious objectors for not having obeyed a renewed order to serve in the military may amount to punishment for the same crime if such subsequent refusal is based on the same constant resolve grounded in reasons of conscience.”[lxvii]
Article 14 has to also be read in relation to other provisions of the Covenant, which is further elaborated on in the last section of this GC (para.58-65). For instance, the right to an effective remedy in article 2, paragraph 3 needs to be respected “whenever any guarantee of article 14 has been violated.”[lxviii] At the same time, article 14, paragraph 5, with regards to “the right to have one’s conviction and sentence reviewed by a higher tribunal,” is a lex specialis in relation to article 2, paragraph 3 “when invoking the right to access a tribunal at the appeals level.”[lxix]
In particular, “scrupulous respect” need to be given to the right to a fair trial in such cases that lead to the imposition of the death penalty. The Committee highlights that “imposition of a sentence of death upon conclusion of a trial, in which the provisions of article 14 of the Covenant have not been respected, constitutes a violation of the right to life (article 6 of the Covenant).”[lxx]
“To ill-treat persons against whom criminal charges are brought and to force them to make or sign, under duress, a confession admitting guilt violates,” in view of the Committee, “both article 7 of the Covenant prohibiting torture and inhuman, cruel or degrading treatment and article 14, paragraph 3 (g) prohibiting compulsion to testify against oneself or confess guilt.”[lxxi]
Article 9, paragraph 3 and Article 14, paragraph 3 (c) both pertain to the prohibitions of “unduly delaying trials.”[lxxii]
Notions of due process in article 14 are also reflected in some of the procedural guarantees of article 13: “Insofar as domestic law entrusts a judicial body with the task of deciding about expulsions or deportations, the guarantee of equality of all persons before the courts and tribunals as enshrined in article 14, paragraph 1, and the principles of impartiality, fairness and equality of arms implicit in this guarantee are applicable.”[lxxiii] That said, all relevant provisions of article 14 apply, “where expulsion takes the form of a penal sanction or where violations of expulsion orders are punished under criminal law.”
“The way criminal proceedings are handled may affect the exercise and enjoyment of rights and guarantees of the Covenant unrelated to article 14,” such as those of article 19 in relation to the freedom of expression and the right to leave one’s own country as guaranteed in article 12, paragraph 2.[lxxiv]
A dismissal of judges in violation of article 25 (c) of the Covenant, or contrary to “the right to have access to public service on general terms of equality…may amount to a violation of this guarantee, read in conjunction with article 14, paragraph 1 providing for the independence of the judiciary.”[lxxv]
“Procedural laws or their application that make distinctions based on any of the criteria listed in article 2, paragraph 1 or article 26, or disregard the equal right of men and women, in accordance with article 3, to the enjoyment of the guarantees set forth in article 14 of the Covenant,” states the Committee, “not only violate the requirement of paragraph 1 of this provision ‘that all persons shall be equal before the courts and tribunals,’ but may also amount to discrimination.”[lxxvi]
General Comments 33 & 34 (2008 & 2011):
General Comment No.33 (11/5/2008) on The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights (CCPR/C/GC/33)
The purpose of the Optional Protocol, as stated in its preamble, is “‘further to achieve the purposes’ of the Covenant by enabling the Human Rights Committee…‘to receive and consider, as provided in the present Protocol, communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant.’” Here, the Committee explains the procedure under the first Optional Protocol. Building on the provisions of article 1, the Committee is of the opinion that “States parties are obliged not to hinder access to the Committee and to prevent any retaliatory measures against any person who has addressed a communication to the Committee.”
Since article 2 requires individuals to exhaust all available domestic remedies before submitting a communication to the Committee, State parties should specify in their response to a communication, if this condition is unmet, “the available and effective remedies that the author of the communication has failed to exhaust.”
In the Committee’s terminology, “author” refers to the individual who has submitted a communication under the Optional Protocol. The second term, communication, is mentioned in article 1 of the Optional Protocol, and is used by the Committee “instead of such terms as ‘complaint’ or ‘petition,’” despite the fact that “petition” is used by the Office of the High Commissioner for Human Rights, “where communications under the Optional Protocol are initially handled by a section known as the Petitions Team.”
If a communication is considered admissible by the Committee, it is then considered “in the light of all written information made available to it by the individual author and by the State party concerned.” As stated in Article 5.4 of the first Optional Protocol, the Committee shall thereafter “forward its views to the State party concerned and to the individual.”
Article 4.2 indicates that a State must respond to a written communication within the time limit of six months from the date of its submission and in accordance with rule 97(2) of the Rules of Procedure of the Human Rights Committee, “the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by the State.”[i] The Rules of Procedure of the Committee “amplify these provisions, including the possibility in exceptional cases of treating separately questions of the admissibility and merits of the communication.”
“In responding to a communication that appears to relate to a matter arising before the entry into force of the Optional Protocol for the State party (the ratione temporis rule), the State party should invoke that circumstance explicitly, including any comment on the possible ‘continuing effect’ of a past violation.”
When a State party fails to respond to a communication “the Committee is then compelled to consider the communication in the absence of full information relating to the communication,” and may reach the conclusion that “the allegations contained in the communication are true…”
While the Committee is merely a quasi-judicial body, the “views”[ii] issued by it under the Optional Protocol “exhibit some important characteristics of a judicial decision. They are arrived at in a judicial spirit, including the impartiality and independence of Committee members, the considered interpretation of the language of the Covenant, and the determinative character of the decisions.”
Where a violation has been established, the concerned State party has to, in accordance with article 2, paragraph 3(a) of the Covenant, “provide an effective and enforceable remedy,” and in order “to give effect to the Committee’s views,” relevant information need to be submitted to the Committee within 180 days. A State party is under the general obligation to “ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant.”
In accordance with the obligation of State parties to act in good faith with regards to all treaty obligations, “both in their participation in the procedures under the Optional Protocol and in relation to the Covenant itself,” State parties must cooperate with the Committee.
The Committee’s Special Rapporteur for the Follow-Up of Views “through written representations, and frequently also through personal meetings with diplomatic representatives of the State party concerned, urges compliance with the Committee’s views and discusses factors that may be impeding their implementation.”[iii] In case of a failure to implement the Committee’s views, this becomes “a matter of public record through the publication of the Committee’s decisions inter alia in its annual reports to the General Assembly of the United Nations.”
In some cases State parties have violated their obligations under article 2, paragraph 4 of the Optional Protocol, and “failed to accept the Committee’s views in whole or in part…, attempted to re-open the case…, [or] took no part in the procedures.” Dialogue with the concerned parties in all such cases, through the Special Rapporteur for the Follow-up of Views is regarded by the Committee as “ongoing with a view to implementation.”
“Measures may be requested by an author, or decided by the Committee on its own initiative, when an action taken or threatened by the State party would appear likely to cause irreparable harm to the author or the victim unless withdrawn or suspended pending full consideration of the communication by the Committee.” In other words, an interim measure could be requested or decided upon in accordance with Rule 92 (previously Rule 86) of the Rules of Procedure of the Human Rights Committee, and the failure to implement such interim or provisional measures “is incompatible with the obligation to respect in good faith the procedure of individual communication established under the Optional Protocol.”[iv] State parties “must use whatever means lie within their power in order to give effect to the views issued by the Committee.”
General Comment No.34 (09/12/2011) on Freedoms of Opinion and Expression (Article 19) (CCPR/C/GC/34)[v]
This General Comment starts by underlining that “Freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society.”[vi] As two interrelated rights, they provide “the vehicle for the exchange and development of opinions.” In particular, the freedom of expression “is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.” Other articles guaranteeing freedom of opinion and/or expression in the Covenant are: 18, 17, 25, and 27 and those two freedoms “form a basis for the full enjoyment of a wide range of other human rights” such as the right to vote and the freedom of assembly and association. In way of giving content to article 19, the Committee indicates the following.
It is incompatible with the object and purpose of the Covenant to make a reservation on paragraph 1 of this article, and the Committee is of the view that freedom of opinion is an element that “cannot be made subject to lawful derogation under article 4…since it can never become necessary to derogate from it during a state of emergency.”
It is possible to make a reservation to certain elements of article 19, paragraph 2, but “a general reservation to the rights set out in paragraph 2 would be incompatible with the object and purpose of the Covenant.”
Paragraph 3 of this article outlines two permitted “limitative areas of restrictions…, which may relate either to respect of the rights or reputations of others or to the protection of national security or public order (ordre public) or of public health or morals.” At the same time, the Committee states that even such restrictions should not “put in jeopardy the right itself,” and it recalls what it has previously underlined in GC No.27, that “the relation between right and restriction and between norm and exception must not be reversed.” Paragraph 3 is also interpreted by the Committee in light of article 5, paragraph 1.[vii]
The first ground for legitimate restrictions is that of “respect for the rights or reputations of others.” The Committee explains that “‘rights’ includes human rights as recognized in the Covenant and more generally in international human rights law.” On the other hand, the term “others” may refer to “other persons individually or as members of the community [i.e. religious or ethnic].”[viii] At all times, such restrictions “must be constructed with care.”[ix]
Examples of restrictions imposed in accordance with the second permitted ground, “protection of national security or of public order (ordre public), or of public health or morals,” include treason laws. The Committee stresses that “extreme care must be taken by States parties” to ensure that under those grounds, laws, i.e treason laws, “are crafted and applied in manner that conforms to the strict requirements of paragraph 3.”[x] Proceedings aimed at protecting public order (ordre public), “must be shown to be warranted in the exercise of a court’s power to maintain orderly proceedings,” and may not “in any way be used to restrict the legitimate exercise of defense rights.”[xi]
Restrictions may be imposed only subject to the conditions in paragraph 3, i.e. “[r]estrictions are not allowed on grounds not specified in paragraph 3, even if such grounds would justify restrictions to other rights protected in the Covenant.” They must be provided by law, placed in accordance with “the strict tests of necessity and proportionality,”[xii] and be “directly related to the specific need on which they are predicated.”[xiii] They may not be “enshrined in traditional, religious or other such customary law;” legal grounds on which a restriction is permitted may include laws of parliamentary privilege and laws of contempt of court, and it is for the State party “to demonstrate the legal basis for any restrictions imposed on freedom of expression.”[xiv]
Laws adopted in pursuit of paragraph 3 “must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly…, must be made accessible to the public…, [and] may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution.”[xv] They must also be compatible with “the provisions, aims and objectives of the Covenant,” i.e. those pertaining to non-discrimination, and they must not “provide for penalties that are incompatible with the Covenant, such as corporal punishment.”[xvi]
For restrictions to be made in accordance with the provisions of article 19, State parties need to demonstrate “in specific and individualized fashion, the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.”[xvii]
The obligations under this article are binding on every State party as a whole, and “may also be incurred by a State party under some circumstances in respect of acts of semi-State entities.”[xviii] The obligation extends to ensuring that “persons are protected from any acts by private persons or entities that would impair the enjoyment of the freedom of opinion and expression to the extent that these Covenant rights are amenable to application between private persons or entities.”[xix]
In pursuit of article 40, State parties are to provide the Committee with information on “the relevant domestic legal rules, administrative practices and judicial decisions, as well as relevant policy level and other sectorial practices relating to the rights protected by article 19.” Additional information needs to be given with regards to the measures and the remedies available to protect this right.
“Freedom of opinion extends to the right to change an opinion whenever and for whatever reason a person so freely chooses. No person may be subject to the impairment of any rights under the Covenant on the basis of his or her actual, perceived or supposed opinions.” It is incompatible with paragraph 1 to harass, intimidate, stigmatize, arrest, detain, try, or imprison a person “for reasons of the opinions they may hold,” or to altogether “criminalize the holding of an opinion.”[xx] This right implies the freedom to also “not to express one’s opinion.”[xxi]
Freedom of expression includes “the right to seek, receive and impart information and ideas of all kinds regardless of frontiers…; the expression and receipt of communications of every form of idea and opinion capable of transmission to others, subject to the provisions in article 19, paragraph 3, and article 20.”[xxii] Additionally, it includes “political discourse, commentary on one’s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching,…religious discourse,” and “even expression that may be regarded as deeply offensive although such expression may be restricted in accordance with the provisions of article 19, paragraph 3 and article 20.”[xxiii] Commercial advertising may also be included. Furthermore, paragraph 2 of this article “protects all forms of expression and the means of their dissemination,” be that written, sign language or images and objects of art. Those means of expression include “books, newspapers, pamphlets, posters, banners, dress and legal submissions…, audio-visual as well as electronic and internet-based modes of expression.”[xxiv]
Free, uncensored and unhindered press or media “constitutes one of the cornerstones of a democratic society…The public also has a corresponding right to receive media output.”[xxv] State parties should encourage “an independent[xxvi] and diverse media” that encompasses all segments of society; i.e. funding should be provided “in a manner that does not undermine their independence.” They should also “foster the independence” of new media such as internet and mobile based electronic information dissemination systems, “and to ensure access of individuals thereto.”[xxvii]
This article also entails a right of access to information held by public bodies, “regardless of the form in which the information is stored, its source and the date of production.” Taken together with article 25 of the Covenant, this includes a right “whereby the media has access to information on public affairs and the right of the general public to receive media output.”[xxviii] In accordance with article 10, even a prisoner does not lose his right to access i.e. his medical records.[xxix] To this effect, information of public interest should be placed in the public domain, and State parties “should make every effort to ensure easy, prompt, effective and practical access to such information,” i.e. by means of enacting necessary procedures such as freedom of information acts, and ensuring “easy, prompt, effective and practical access to such information.”[xxx]
In this regard, article 27 indicates that “a State party’s decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities.”[xxxi]
Measures need to be put into place to protect persons being attacked “because of the exercise of his or her freedom of expression, including such forms of attack as arbitrary arrest, torture, threats to life and killing.” Journalists and human rights activists are usually subjected to such acts, which are by no means compatible with article 19, paragraph 3.[xxxii]
It is highlighted in this general comment that the scope of the freedom of expression “is not to be assessed by reference to a ‘margin of appreciation.’” In order for the Committee to carry out its function as the body in charge of assessing whether a restriction is legitimate, “a State party, in any given case, must demonstrate in specific fashion the precise nature of the threat to any of the enumerated grounds listed in paragraph 3 that has caused it to restrict freedom of expression.”[xxxiii]
While it might be “legitimate for a State to restrict political polling imminently preceding an election in order to maintain the integrity of the electoral process,” the Committee has expressed concern for a number of political practices such as blocking or limiting access of i.e. opposition figures during election periods to media sources, including local and international media.[xxxiv] Relevant laws of concern to the Committee include those on lese majesty, desacato, and disrespect for authority, and the Committee stresses that State parties “should not prohibit criticism of institutions, such as the army or the administration.”[xxxv]
“[B]ecause of the development of modern mass media, effective measures are necessary to prevent such control of the media as would interfere with the right of everyone to freedom of expression.” Generally speaking, all restrictions on media (print, broadcast, and internet) should be made in accordance with paragraph 3 of article 19, but more specific guidelines for carrying out such restrictions are given in paragraph 39-43 of this general comment.[xxxvi] For instance, in paragraph 43 of this general comment, the Committee states that permissible restrictions on websites “should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3.”
Specific guidelines for the treatment of journalists is given in paragraph 44-46.[xxxvii] For instance, the Committee states that “offenses as ‘encouragement of terrorism and ‘extremist activity’ as well as offences of ‘praising,’ ‘glorifying’ or ‘justifying’ terrorism, should be clearly defined to ensure that they do not lead to unnecessary or disproportionate interference with freedom of expression.”[xxxviii]
“Defamation laws must be crafted with care to ensure that they comply with paragraph 3, and they do not serve, in practice, to stifle freedom of expression,” and Paragraph 47 of GC 34 gives more details on how such laws should be crafted and applied.[xxxix]
“Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant.” Relevant prohibitions should also comply with “the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26.[xl]
In view of the Committee, “The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events.”[xli]
Finally, it is pointed out that articles 19 and 20 “are compatible with and complement each other. The acts that are addressed in article 20 are all subject to restriction pursuant to article 19, paragraph 3. As such, a limitation that is justified on the basis of article 20 must also comply with article 19, paragraph 3.”[xlii] However, in contrast to the acts that are addressed by article 19, the acts addressed by article 20 are explicitly required to be prohibited by law, which makes article 20 in this regards a lex specialis in relation to article 19.
Draft General Comment No.35 (01/28/2013) on Liberty and Security of Person (Article 9) (CCPR/C/107/R.3)[I]
As a replacement of GC no. 8, the Committee starts this draft GC by clarifying that the right to liberty of person in article 9 “concerns freedom from confinement of the body,” and the right to security of person “concerns freedom from injury to the body, or bodily integrity.” Those provisions of article 9 are guaranteed for everyone, which includes in view of the Committee “girls and boys, soldiers, persons with disabilities, aliens, persons convicted of crime, and persons who have engaged in terrorist activity.”[ii] Paragraphs 2 and 3 of this article apply only “in connection with criminal charges. But the rest, in particular the important guarantee laid down in paragraph 4, i.e. the right to review by a court of the legality of detention, applies to all persons deprived of liberty.”
Liberty of person does not refer to “a general freedom of action,” but to “freedom from physical confinement,”[iii] and in this regard, the depravation of liberty “involves more severe restriction of motion within a narrower space than mere interference with liberty of movement under article 12.”[iv] This usually takes place without the free consent of people.[v]
Liberty of person is independent from “security of person,” which refers to, but is not necessarily limited to, “freedom from bodily injury, including fatal injury.”[vi] To this effect, State parties are under the obligation “to take appropriate measures to protect individuals, whether detained or non-detained, from known threats to life or bodily integrity proceeding from either governmental or private sources.”[vii]
State parties are under the obligation to take both “prospective measures to prevent future injury and retroactive measures such as enforcement of criminal laws in response to past injury. Where needed, States parties should establish effective witness protection programs.”[viii] They should also “respond appropriately to patterns of violence against categories of victims,” such as human rights defenders, journalists, women, children, and sexual minorities, in addition to protecting their populations against “excessive use of force in law enforcement, abuses by private security forces, and the risks posed by excessive availability of firearms.”[ix]
“The right to security of person does not address all risks to health, and is not implicated in the direct health impact of being the target of a civil or criminal proceedings.”[x]
State parties are under the obligation to protect the right to liberty of person “against deprivations by third parties,” [xi] including acts of abduction or detention by individual criminals or groups, and armed or terrorist groups “operating unlawfully within their territory.”[xii] Additionally, they are obliged to “protect individuals against wrongful deprivation of liberty by lawful organizations, such as employers, schools, and hospitals,” and they should also “take appropriate measures, to the extent possible, to protect personal liberty against the activities of another State within their territory.”[xiii]
With regards to State agents authorized to exercise powers of arrest or detention, the State party “must rigorously limit those powers and must provide strict and effective control to ensure that those powers are not misused, and do not lead to arbitrary or unlawful arrest or detention.”[xiv] Additionally, appropriate remedies must be provided for victims of arbitrary or unlawful arrest or detention and States are under the obligation to provide in their reports “descriptions of the powers they have granted to private actors and the regulations and procedures by which they ensure supervision.”[xv]
Article 9 recognizes that deprivation of liberty is sometimes justified, i.e. “in the enforcement of criminal laws for the protection of the rights of others.” However, as recognized in paragraph 1, such deprivations should not be arbitrary and they must be carried out with respect for the rule of law.
“[S]ome arrests or detentions may be both arbitrary and unlawful. Arrest or detention that lacks any legal basis is arbitrary.” For example, “[u]nauthorized confinement of prisoners beyond the length of their sentences is arbitrary as well as unlawful. Continued confinement of prisoners in defiance of a judicial order for their release is arbitrary as well as unlawful.”[xvi]
Arbitrariness is not the equivalent of “against the law.” In view of the Committee, this term should be interpreted “more broadly to include elements of inappropriateness, injustice, lack of predictability, and due process of law.”[xvii]
“Arrest” v. “detention:” “The term ‘arrest’ refers to the initiation of a deprivation of liberty, and ‘detention’ refers to the deprivation that begins with the arrest. Arrest within the meaning of article 9 need not involve a formal arrest as defined under domestic law.”[xviii]
While the Covenant lacks an enumeration of “the permissible reasons for depriving a person of liberty,” article 9 “expressly recognizes that individuals may be detained on criminal charges, and article 11 expressly prohibits imprisonment on ground of inability to fulfill a contractual obligation.”[xix] At the same time, the Committee indicates that detention “for criminal offenses such as fraud that are related to civil law debts does not violate article 11, and does not amount to arbitrary detention.” Additional procedural guarantees for the protection of “persons charged with a criminal offence” can be found in article 14, and article 13 “addresses some of the procedures to be employed in the expulsion of aliens from the territory of a State party.” All other grounds for the deprivation of liberty in view of the Committee, “must be established by law and must be accompanied by procedures that prevent arbitrary detention,” which should not be “unreasonably or unnecessarily destructive of the right to liberty of person.”[xx]
Articles 7 and 10 primarily address the subject of conditions of detention; however, “detention may be arbitrary if the design of the conditions does not correspond to the ostensible purpose of the deprivation of liberty.”[xxi] Generally speaking, the regime “must not amount to an evasion of the limits on the criminal justice system by providing the equivalent of criminal punishment without the applicable protections.”[xxii]
The Committee classifies under arbitrary “[a]rrest or detention as punishment for exercising certain rights protected by the Covenant,” and such Covenant rights include article 19 (on the freedom of opinion and expression); article 21 (on freedom of assembly); article 22 (on freedom of association); article 18 (on freedom of religion); article 17 (on the right to privacy); and where such arrests or detentions are based on “discriminatory grounds in violation of article 27,” they “may also be arbitrary.” [xxiii] Additionally, while the Committee is of the view that “not every violation of the specific procedural guarantees for criminal defendants in article 14 results in arbitrary detention,” it highlights that “[r]etroactive criminal punishment in violation of article 15 amounts to arbitrary detention. Enforced disappearances violate numerous substantive and procedural provisions of the Covenant, and also amount to arbitrary detention.” [xxiv]
In the case of detention “in the course of proceedings for the control of immigration,” the Committee states that this is “not per se arbitrary, but the detention must be justified as reasonable, necessary and proportionate in light of the circumstances, and reassessed as it extends in time.”[xxv] In general, “[a]ny necessary detention should take place in appropriate, sanitary, non-punitive facilities, and should not take place in prisons. Individuals must not be detained indefinitely on immigration control grounds if the State party is unable to carry out their expulsion.”[xxvi]
General conditions for the depravation of liberty in the field of mental health are set forth in paragraph 19 of this general comment.[xxvii] Depravation of liberty “must be necessary and proportionate, for the purpose of protecting the person in question or preventing injury to others, must take into consideration less restrictive alternatives, and must be accompanied by adequate procedural and substantive safeguards established by law.”[xxviii] Additionally, any such procedure “should ensure respect for the views of the patient, and should ensure that any guardian or representative genuinely represents and defends the wishes and interests of the patient.”[xxix] Further, all patients “should be assisted in obtaining access to effective remedies for the vindication of their rights, including initial and periodic judicial review of the lawfulness of the detention, and to ensure conditions of detention consistent with the Covenant.”[xxx]
With regards to criminal sentencing schemes, “[c]onvicted prisoners are entitled to have the duration of their sentences administered in accordance with domestic law, including provisions concerning consideration for early release or parole. Denial of release or parole amounts to continuation of detention, and must not be arbitrary within the meaning of article 9.”[xxxi]
“When a criminal sentence includes a punitive period followed by a preventive period, then once the punitive term of imprisonment has been served, to avoid arbitrariness the preventive detention must be justified by compelling reasons,” and in order to decide on the continued justification of the detention, “periodic reviews by an independent body must be assured.”[xxxii]
“The substantive grounds for arrest or detention must be prescribed by law, and should be defined with sufficient precision to avoid overly broad or arbitrary application.”[xxxiii]
“Procedures for carrying out legally authorized deprivation of liberty should also be established by law, and States parties should ensure compliance with their legally proscribed procedures.” At the same time, “[n]ot every violation of a domestic procedural rule,” clarifies the Committee, “amounts to a violation of article 9.”[xxxiv]
The requirement in paragraph 2, article 9, with regards to informing all persons who are deprived of liberty “at the time of arrest, of the reasons for the arrest…, applies regardless of the formality with which the arrest takes place, and regardless of the legitimate or improper reason on which it is based.”[xxxv] This is partly to enable arrested persons “to seek release if they believe that the reasons given are invalid or unfounded,” and in view of the Committee, those “reasons” shall be given in accordance with “the official basis for the arrest, not the subjective motivations of the arresting officer.”[xxxvi] The Committee states that while oral notification of reasons for arrest satisfy the requirement, those reasons “must be given in a language that the arrested person understands.”[xxxvii]
In certain cases, particularly those of “some categories of vulnerable persons,” the Committee highlights that “directly informing the person is required but not sufficient.” For example, in case of arrested children “notice of the arrest and the reasons should also be provided directly to their parents, guardians, or legal representatives.” Additionally, in cases of persons with mental disabilities “notice of the arrest and the reasons should be provided directly to appropriate family members, guardians, or legal representatives.” While the Committee is of the view that extra time “may be required to identify and contact the relevant third persons…, notice should be given as soon as possible. The same considerations apply to prompt information concerning any criminal charges.”[xxxviii]
All such information must be given “immediately upon arrest;” however, the Committee makes clear that in some cases this might not be possible, i.e. “a delay of several hours may be required before an interpreter can be present.”[xxxix]
With regards to the second requirement in paragraph 2, article 9, that all arrested persons “shall be promptly informed of any charges against them,” the Committee indicates that this applies only to criminal charges, as those arrested “for the purpose of investigating crimes they may have committed, or for the purpose of holding them for criminal trial, must be promptly informed of the crimes which they are suspected or accused.” In particular, the Committee indicates that this obligation “applies in connection with ordinary criminal prosecutions, and also in connection with military prosecutions or other special regimes directed at criminal punishment.”[xl]
In contrasting the requirements under paragraph 2, article 9 to those of paragraph 3(a), article 14 the Committee indicates the following: paragraph 2, article 9, applies “only to persons who are arrested,” while paragraph 3 (a) of article 14 “applies also to criminal defendants who have remained at liberty.” Additionally, the right under paragraph 2, article 9, “can arise at an earlier stage of the proceedings, if the suspect is arrested for investigation prior to the bringing of formal charges, whereas article 14, paragraph 3(a) applies only once charges have been formally brought.[xli] Further, it is highlighted that “[n]otice of charges under article 9, paragraph 2, serves to facilitate the determination of the propriety of the provisional detention, whereas notice of charges under article 14, paragraph 3 (a), serves to facilitate defence against the charges.” To this effect, “article 14, paragraph 3(a) requires information concerning the charges to be provided in greater detail than article 9, paragraph 2, does.”[xlii]
Additionally, the Committee points out that the right under paragraph 3, article 9 that “the person detained is entitled to trial within a reasonable time or to release,” overlaps with the requirement “to be tried without undue delay” under paragraph 3 (c) of article 14. However, the Committee finds article 9 to be applicable “specifically to periods of pretrial detention, that is, detention between the time of arrest and the time of judgment at first instance.” [xliii]
“Extremely prolonged pretrial detention may also violate the presumption of innocence under article 14, paragraph 2. Persons denied release pending trial must be tried as expeditiously as possible, to the extent consistent with their rights of defence.”[xliv] Justifications for additional detention time could include “[i]mpediments to the completion of the investigation…but general conditions for understaffing or budgetary constraints do not.” In cases of necessary delays, the Committee states that “the court should reconsider alternatives to pretrial detention,” for example, “[p]retrial detention of juveniles should be avoided, but when it occurs they are entitled to be brought to trial in specially speedy fashion under article 10, paragraph 2 (b).”[xlvi]
When a State complies with the obligation under paragraph 3, article 9, “that anyone detained on a criminal charge be brought promptly before a judge to determine the lawfulness of the detention…normally within forty-eight hours,”[lvii] the Committee is of the view that in such cases “articulation of the proposed or suspected charges at the hearing will satisfy the promptness requirement of paragraph 2,” of article 9. [xlviii]
Paragraph 3 generally applies “in connection with ordinary criminal prosecutions, military prosecutions, and other special regimes directed at criminal punishment.” The first sentence of it applies to persons “arrested or detained on a criminal charge,” and the second sentence applies to persons “awaiting trial” on a criminal charge.[xlix] Paragraph 3 also applies where “detention is based on suspected criminal activity, and no other legal regime in the State party provides a lawful basis for the detention.” This must be exercised by “an authority which is independent, objective and impartial in relation to the issues dealt with.” For instance, the Committee states that “[p]ublic prosecutors generally lack the institutional objectivity and impartiality necessary to be considered as an officer exercising judicial power under paragraph 3.” [li]
In defining the exact meaning of “promptly,” the Committee states that “delays must not exceed a few days from the time of arrest. In the view of the Committee, forty-eight hours is ordinarily sufficient to transport the individual and to prepare for the judicial hearing; any delay longer than forty-eight hours should be justified by exceptional circumstances.”[lii] The Committee is of the view that “[l]onger detention in the custody of law enforcement officials without judicial control unnecessarily increases the risk of ill-treatment.” [liii]
In view of the Committee, the obligation in paragraph 3 regarding the physical presence of the detainee at court hearings, “which does not depend on the choice or ability of the detainees to assert it,” “serves as a safeguard for the right to security of person and the right against torture and cruel, inhuman or degrading treatment.”[liv] To this effect, “[i]ncommunicado detention that prevents prompt presentation before a judge inherently violates paragraph 3,” and depending on the duration of such detention and other facts it “may also violate other rights under the Covenant, including articles 6, 7, 10, and 14.” Further, the Committee highlights that State parties must “permit immediate access to counsel for detainees in criminal cases, from the outset of their detention.”[lvi]
Once a hearing has taken place before a judge, and if no “lawful basis for continuing the detention” are found, “the judge must order release – in this respect the hearing required under paragraph 3 also performs the function of proceedings under paragraph 4.”[lvii] Otherwise, the Committee is of the view that “detention on remand should not involve a return to police custody, but rather to a separate facility under different authority, because continuing custody in the hands of the police creates too great a risk of ill-treatment.”[lviii]
With regards to the second sentence of paragraph 3, the Committee states that it is applicable “to persons awaiting trial on criminal charges, that is, after the defendant has been charged, but a similar requirement results from the prohibition of arbitrary detention in paragraph 1.”[lix]
To detain a person while a trail is pending “must be based on individualized determination that it is reasonable and necessary in all the circumstances, for such purposes as to prevent flight, interference with evidence or the recurrence of crime.”[lx] In this regard, “[p]retrial detention should not be mandatory for all defendants charged with a particular crime, without regard to individual circumstances.” For instance, that of juveniles “should be avoided to the fullest extent possible.”[lxi] “Neither should pretrial detention be ordered for a period based on the potential sentence for the crime charged, rather than on a determination of necessity.”[lxii] Once it is determined that pretrial detention is necessary, “there should be periodic reexamination of whether it continues to be reasonable and necessary in light of possible alternatives. If the length of time that the defendant has been detained reaches the length of the highest sentence that could be imposed for the crimes charged, the defendant should be released.”[lxiii]
Paragraph 4 of article 9 “enshrines the principle of habeas corpus.”[lxiv] This paragraph “entitles anyone who is deprived of liberty by arrest or detention to take proceedings before a court, in order that the court may decide without delay on the lawfulness of the detention and order release if the detention is not lawful.” House arrest and solitary confinement are included within the meaning of detention in paragraph 4.[lxv] This right applies to all cases of detention: “military detention, security detention, counter-terrorism detention, involuntary hospitalization, immigration detention, detention for extradition,…wholly groundless detention…, detention for vagrancy or drug addiction, and detention of children for educational purposes, and other forms of administrative detention.”[lxvi]
In contrast to paragraph 5 of article 14, which “guarantees criminal defendants the right to a single appeal from an initial conviction to a higher court,” paragraph 4 of article 9 “does not require subsequent view of the detention,” “[w]hen a prisoner is serving the minimum duration of a prison sentence as decided by a court of law after a conviction.” [lxvii] The Committee states that the “object of the right” in paragraph 4, article 9 “is release (either unconditional or conditional) from ongoing unlawful detention; [lxviii] compensation for unlawful detention that has already ended is addressed in paragraph 5.”[lxix]
Waiting periods before a detainee held on grounds justified by a court “can bring a first challenge to detention” are not permitted to be “substantial.”[lxx]
With regards to administrative detention, “[w]hile domestic legal systems may establish differing methods for ensuring court review…, paragraph 4 requires that there be a judicial remedy for any detention that is unlawful…” i.e. on grounds of violations of domestic law or of relevant provisions of the Covenant, including article 9, para. 1.[lxxi]
To take proceedings before “a court” under paragraph 4 of article 9, states the Committee, “need not always be” to a court “within the judiciary. For some forms of detention,” in view of the Committee, “a different tribunal of a judicial character may provide the necessary degree of impartiality, independence and procedural adequacy to satisfy the requirement. For disciplinary detention of a soldier on active duty, review by a military court may suffice, although review by a super military officer would not.”[lxxii]
Unlike paragraph 3, which requires “automatic initiation of review by the authorities detaining an individual,” paragraph 4 “leaves the option of taking proceedings to the persons being detained, or those acting on their behalf.” “Laws that exclude a particular category of detainees,” in view of the Committee “from the review required by paragraph 4 violate the Covenant. Practices that render such review effectively unavailable to an individual, including incommunicado detention, also amount to a violation.”[lxxiv]
“Applications for judicial review of administrative decisions that deny protection against refoulement to persons who fear torture, ill-treatment or death should have suspensive effect.”[lxxv]
Those deprived of liberty are entitled not only “to take proceedings, but to receive a decision, and without a delay. The unjustified refusal by a court to consider a petition for the release of a detained person violates paragraph 4.”[lxxvi] At the same time, the Covenant, states the Committee, “does not require that a court decision upholding the lawfulness of detention be subject to appeal. If a State party does provide for appeal or further instances, the standard of delay may reflect the changing nature of the proceedings.”[lxxvii]
In view of the Committee, “a period of almost three months between filing for judicial review and the decision at first instance was in principle too extended, at least absent explanation. A delay of seventeen days before examining a challenge to pretrial detention has been found consistent with paragraph 4.”[lxxviii]
Statistics relevant to para. 4, “including the number of cases filed in court seeking release from any form of unlawful detention and their outcome” should be included in State reports.”[lxxix]
The specific remedies that are articulated in paragraphs 4 and 5 of this article “for a human rights violations, which State parties are required to afford,…do not replace, but are included alongside, the other remedies that may be required in a particular situation by article 2, paragraph 3 of the Covenant.” [lxxx]
Compensations afforded to victims [lxxxi] in accordance with the legal framework envisaged by paragraph 5 is as stated in para. 52 of this GC, “a matter of an enforceable right and not a matter of grace or discretion.” It could be invoked “against the State itself, or against individual state officials responsible for the violation.”[lxxxii]
Paragraph 5 requires the establishment of “an effective system of procedures that provides compensation” and not necessarily that “a single procedure be established providing compensation for all forms of unlawful arrest.”[lxxxiii] It does not place state parties under the obligation “to compensate victims sua sponte, but rather permits them to leave commencement of proceedings for compensation to the initiative of the victim.[lxxxiv]
“When the unlawfulness of the arrest arises from the violation of other human rights, such as freedom of expression, the State party may have further obligations to provide compensation or other reparation in relation to those other violations, as required by article 2, paragraph 3 of the Covenant.”[lxxxv]
State reports must also include statistics in relation to para. 5, “including the number of complaints brought seeking compensation for any form of unlawful detention, against the State party or against individual officers, and their outcome.”[lxxxvi]
In addition to the interdependence explained earlier between article 9 and article 14, some acts may violate article 9 “because they violate another article, for example, detention that is arbitrary because it represents punishment for freedom of expression.”
Article 9 further enforces “the obligations of States parties under the Covenant and under the Optional Protocol to protect individuals against reprisals, including physical intimidation or threats to personal liberty, in retaliation for submitting communications or for providing information to the Committee in connection with a State party’s reports.”[lxxxvii]
For the relationship between article 9 and other Covenant provision, see General Comment No. 35, paragraphs. 58 - 67: para. 58 on the right to life - article 6 (1); paras. 59, 60 and 66 on prohibition of torture and cruel, inhuman or degrading treatment or punishment - article 7; para. 61 on the prohibition of slavery and other forms of forced labour - article 8; para. 62 on rights of persons deprived of liberty – article 10; para. 63 on liberty of movement – article 12 and the expulsion of lawful aliens – article 13; and para. 65 on a reading of article 9 in light of article 2, para. 1.
As with the rest of the Covenant, “article 9 applies also in situations of armed conflict to which the rules of international humanitarian law are applicable.”[lxxxviii] In such situations, “access by the International Committee of the Red Cross to all places of detention becomes an essential additional safeguard for the rights to liberty and security of person.” [lxxxix]
While article 9 is not included in the list of non-derogable rights in article 4, paragraph 2, “there are limits on States parties’ power to derogate. States parties derogating from normal procedures required under article 9 in circumstances of armed conflict or other public emergency must ensure that such derogations do not exceed those strictly required by the actual situation.” Additionally, such measures “must also be consistent with a State party’s other obligations under international law, and non-discriminatory. The prohibitions against taking of hostages, abductions or unacknowledged detention are therefore not subject to derogation.”[xc]
Elements of article 9 that cannot be made subject to derogations include the guarantee against arbitrary detention.[xci] “The existence and nature of a public emergency which threatens the life of the nation may, however, be relevant to a determination of whether a particular arrest or detention is arbitrary.” At the same time, the Committee points out “[v]alid derogations from other derogable rights may also be relevant, when a deprivation of liberty is characterized as arbitrary because of its interference with another right protected by the Covenant.”
“The procedural guarantees protecting liberty of person may never be made subject to measures of derogation that would circumvent the protection of non-derogable rights.”[xcii] For instance, “the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention must not be diminished by measures of derogation,” in ways that undermine the protection of non-derogable rights such as those of articles 6 and 7.[xciii]
In regards to the issue of reservations, while it may be acceptable to reserve certain clauses of article 9, “it would be incompatible with the object and purpose of the Covenant for a State party to reserve the right to engage in arbitrary arrest and detention of persons.”[xciv]
[i] Michael O’Flaherty (2002), “The Human Rights Committee,” Ch. 2 in Human Rights and the UN: Practice Before the Treaty Bodies. (Martinus Nijhoff Publications: The Hague/London/New York), p.28-29
[ii] Article 28. ICCPR.
[iii] Theo Van Banning et al, (2004) “Important Features of the International Supervisory Mechanisms to be Taken into Account when Submitting a Complaint.” Ch.2 in Universal and Regional Human Rights Protection: Cases and Commentaries (University for Peace: Costa Rica). p.7
[iv] Henry J. Steiner and Philip Alston (1996), “Treaty Organs: The ICCPR Human Rights Committee,” Ch.9 in International Human Rights in Context Vol.II (Clarendon Press: Oxford) p.502. For a formalized ethical guidelines for Committee Members, see the Committee’s rules of procedure (CCPR/C/3/Rev.7).
[v] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.12
[vii] Ibid., p.13
[x] Ibid., p.12
[xi] Secretariat of the Human Rights Committee, Support Services Branch, Office of the Hugh Commissioner for Human Rights, UNOG, 1211 Geneva 10, Switzerland.
[xii] Henry J. Steiner and Philip Alston (1996), “Treaty Organs: The ICCPR Human Rights Committee,” Ch.9 in International Human Rights in Context Vol.II (Clarendon Press: Oxford) p.501
[xiii] (Accessed 03 August 2018)
[xiv] Henry J. Steiner and Philip Alston (1996), “Treaty Organs: The ICCPR Human Rights Committee,” Ch.9 in International Human Rights in Context Vol.II (Clarendon Press: Oxford) p.502; The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.14
1) State Parties’ Reports
[xv] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.14
[xvi] Ibid., p.15
[xvii] Michael O’Flaherty (2002), “The Human Rights Committee,” p.29
[xviii] Ibid., p.30; Rule 70A of the Committee’s Rules of Procedure stipulates that “[w]here the Committee has specified for priority, under rule 70.5, certain aspects of its concluding observations on a State party’s report, it shall establish a procedure to consider replies by the State party on those aspects and to decide what consequent action, including the date set for the next periodic report, may be appropriate.” See UN Doc. HRI/GEN/3; and UN Doc. CCPR/C/70/INFORMAL/2.
[xix] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.15
[xx] Article 40, ICCPR. See also Rules of Procedure of the Human Rights Committee, Rule 66, para 2, UN Doc. HRI/GEN/3, page 47
[xxi] Those countries are: Albania, Angola, Bosnia and Herzegovina, Burundi, Croatia, Haiti, Iraq, Nigeria, Peru, Rwanda, United Kingdom (Hong Kong), and the Federal Republic of Yugoslavia. Michael O’Flaherty (2002), “The Human Rights Committee,” p.39
[xxii] Michael O’Flaherty (2002), “The Human Rights Committee,” p.39
[xxiii] Human Rights Committee Annual Report to the General Assembly (1994), UN Doc. A/49/40, para.47
[xxiv] Michael O’Flaherty (2002), “The Human Rights Committee,” p.31
[xxv] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.16
[xxvi] Michael O’Flaherty (2002), “The Human Rights Committee,” p.31
[xxvii] Ibid. p.31
[xxviii] Ibid; The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.16. For more information, see the Reporting Guidelines that are Published by the Committee (UN Doc. HRI/GEN/2/Rev.1); UN Doc. HRI/CORE/1 for the reporting requirements under each of the Covenant’s articles; and the Manual on Human Rights Reporting that is published by the Office of the United Nations High Commissioner for Human Rights on (Accessed 03 August 2018)
[xxix] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.16.
[xxx] Michael O’Flaherty (2002), “The Human Rights Committee,” p.31
[xxxii] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.16.
Report Procedure: See UN Human Rights Committee, “Participation in the Reporting Process – Guidelines for Non-Governmental Organizations (NGOs)” p.xxx: (Accessed 03 August, 2018)
[xxxiii] Ibid. p.17
[xxxiv] Michael O’Flaherty (2002), “The Human Rights Committee,” p.33
[xxxvi] Ibid, p.32
[xxxviii] Ibid., p.39
[xxxix] Ibid., p.32
[xl] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.18
[xli] “Working with the Office of the United Nations High Commissioner for Human Rights – A Handbook for NGOs” Office of the High Commissioner for Human Rights, UN Doc. HR/PUB/06/10, p.82
[xlii] Office of the United Nations High Commissioner for Human Rights, “Human Rights Committee – Working Methods,” on (Accessed 03 August 2018)
[xlvi] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.18
[xlix] Henry J. Steiner and Philip Alston (1996), “Treaty Organs: The ICCPR Human Rights Committee,” p.506
[li] Michael O’Flaherty (2002), “The Human Rights Committee,” p.33
[liv] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.19-20. Concluding Observations are available via the Treaty Bodies database of the Office of the United Nations High Commissioner for Human Rights: (accessed 03 August 2018)
[lv] Michael O’Flaherty (2002), “The Human Rights Committee,” p.33
[lvi] See the twentieth annual Report of the Human Rights Committee (1996), UN Doc. A/51/40, paragraph 437
[lvii] Michael O’Flaherty (2002), “The Human Rights Committee,” p.30
[lviii] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.20
[lix] Ibid. See also
[lx] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.20
[lxii] Ibid; Michael O’Flaherty (2002), “The Human Rights Committee,” p.30
[lxiii] Henry J. Steiner and Philip Alston (1996), “Treaty Organs: The ICCPR Human Rights Committee,” p.506
[lxiv] Michael O’Flaherty (2002), “The Human Rights Committee,” p.39; See also S. Joseph, “New Procedures Concerning the Human Rights Committee’s Examination of State Reports,” N.Q.H.R. 1995, 13 (1), pp.17-18
[lxv] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1), p.21
Role of NGOs and Other Members of Civil Society[lxvii]
[lxvii] For additional details, see in particular UN Human Rights Committee, “Participation in the Reporting Process – Guidelines for Non-Governmental Organizations (NGOs)” (Accessed 03 august 2018)
[lxviii] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1), p.17
[lxxi] Michael O’Flaherty (2002), “The Human Rights Committee,” p.31; See in particular UN Doc. A/55/40 (Vol.1), paragraph 17; F. Pocar, “The International Covenant on Civil and Political Rights in Manual on Human Rights, (United Nations, 1997), pp.171-266; and I.Boerefijin, “The Reporting Procedure under the Covenant on Civil and Political Rights: Practice and Procedure of the Human Rights Committee,” (1999), pp.216-220
[lxxii] UN Human Rights Committee, “Participation in the Reporting Process – Guidelines for Non-Governmental Organizations (NGOs)” p.22: (Accessed 03 August 2018)
[lxxiii] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.17
[lxxiv] See UN Human Rights Committee, “Participation in the Reporting Process – Guidelines for Non-Governmental Organizations (NGOs)” p.24-26 for the recommended structure and content of NGO reports
[lxxv] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.17
[lxxvi] Michael O’Flaherty (2002), “The Human Rights Committee,” p.34
[lxxvii] UN Human Rights Committee, “Participation in the Reporting Process – Guidelines for Non-Governmental Organizations (NGOs)” p.22
[lxxix] Ibid., p.21
[lxxxii] Ibid. p.25
[lxxxiii] Michael O’Flaherty (2002), “The Human Rights Committee,” p.34
[lxxxvii] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.18
[lxxxviii] Michael O’Flaherty (2002), “The Human Rights Committee,” p.39
[lxxxix] Ibid., p.39-40
[xc] Ibid., p.40
[xci] From UN Human Rights Committee, “Participation in the Reporting Process – Guidelines for Non-Governmental Organizations (NGOs)” p.28-29
[xcii] Ibid. p.27
[xciii] Ibid. p.30
[xciv] Ibid. p.27
2) Inter-State Complaint Procedure[I]
[i] An illustrative case based on hypothetical facts has been prepared by Keely Boom, PhD Candidate at the University of Wollongong and a Legal Officer at the Australian Climate Justice Program. See “Official Complaint of the Government of Algoria Alleging Violation of the International Covenant on Civil and Political Rights by Australia,” December 31, 2008. (Accessed July 10, 2013)
[ii] The Human Rights Committee, “The United Nations Human Rights Treaty System,” Fact Sheet No. 30 (Rev.1). p.35; The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.27
[iii] The Human Rights Committee, “Civil and Political Rights: The Human Rights Committee,” Fact Sheet No. 15 (Rev.1). p.27
[v] Ibid. p.27-28
3) Individual Complaint Procedure
[i] See the Selected Decisions of the Human Rights Committee under the Optional Protocol series: Vol.1 – 1985 (CCPR/C/OP/1); Vol. 2 – 1990 (CCPR/C/OP/2 ); Vol.3 – 2002 (CCPR/C/OP/3); Vol.4 – 2004 (CCPR/C/OP/4); Vol. 5 – 2005 (CCPR/C/OP/5); Vol.6 – 2005 (CCPR/C/OP/6); Vol. 7 – 2006, (CCPR/C/OP/7); Vol.8 – 2007 (CCPR/C/OP/8); Vol.9 – 2008 (CCPR/C/OP/9). Available in PDF format on the website of the Office of the United Nations High Commissioner for Human Rights.
[ii] Office of the United Nations High Commissioner for Human Rights “Complaints Procedures,” Fact Sheet No. 7 (Rev.1), p.7
4) General Comments of the Human Rights Committee
General Comments 1-10 (1981-1983):
[i] The full text of all General Comments is available on the website of the Office of the United Nations High Commissioner for Human Rights: (Accessed 3 August 2018)
[ii] This general comment has been superseded by UN Doc. CCPR/C/66/GUI, which is entitled “Consolidated guidelines for State reports under the International Covenant on Civil and Political Rights” (09/29/1999).
[iii] General Comment No.7 was replaced by General Comment No.20 (1992).
[iv] General Comment No.9 was replaced by General Comment No.21 (1992).
General Comments 11-20 (1983 - 1992):
[i] General Comment No.20 (1992) has replaced General Comment No.7 (1982).
General Comments 21-25 (1992 - 1996):
[i] General Comment No.21 (1992) Replaces General Comment No.9 (1982).
[ii] UN Doc. A/RES/40/33
[iii] See Official Records of the General Assembly, Thirty-ninth Session, Supplement No.40 (A/39/40), annex VI, General Comment No. 12 (21) (article 1), also issued in document CCPR/C/21/Rev.1, Forty-fifth Session, Supplement No. 40, (A/45/40), vol II, annex IX, sect A, Communication No. 167/1984 Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, views adopted on 26 March 1990.
[iv] See communication No. 197/1985 Kitok v. Sweden, views adopted on 27 July 1988.
[v] See communications No. 182/1984 F.H. Zwaan-de Vries v. the Netherlands, views adopted on 9 April 1987; and No. 180/1984 L.G. Danning v. the Netherlands, views adopted on 9 April 1987
[vi] See communications No. 220/1987 T.K. v. France, decision of 8 November 1989; and No. 222/1987 M.K. v. France, decision of 8 November 1989
[vii] See communications No. 167/1984 Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, views adopted on 26 March 1990; and No. 197/1985 Kitok v. Sweden, views adopted on 27 July 1988.
[viii] Footnote No. 2, GC No. 24: “Although the Vienna Convention on the Law of Treaties was concluded in 1969 and entered into force in 1980 – i.e. after the entry into force of the Covenant – its terms reflect the general international law on this matter as had already been affirmed by the International Court of Justice in The Reservations to the Genocide Convention Case of 1951.”
[ix] GC No.24, paragraph 8, contains the list of Covenant provisions that are part of customary international law or have the Character of peremptory norms. “[A] State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence, to execute pregnant women or children, to permit the advocacy of national, racial or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy their own culture, profess their own religion, or use their own language. And while reservations to particular clauses of article 14 may be acceptable, a general reservation to the right to a fair trial would not be.” GC No. 24
[x] Footnote No. 3, GC No. 24: “Reservations have been entered to both article 6 and article 7, but not in terms which reserve a right to torture or to engage in arbitrary deprivation of life.”
[xi] Footnote No.4, GC No.4: “The Competence of the Committee in respect of this extended obligation is provided for under article 5 – which itself is subject to a form of reservation in that the automatic granting of this competence may be reserved through the mechanism of a statement made to the contrary at the moment of ratification or accession.”
[xii] Among the positive measures that are highlighted in this general comment for the implementation of the right to vote, “to overcome specific difficulties, such as illiteracy, language barriers, poverty, or impediments to freedom of movement which prevent persons entitled to vote from exercising their rights effectively:” a) information and materials about voting should be available in minority languages. B) specific methods, such as photographs and symbols, should be adopted to ensure that illiterate voters have adequate information on which to base their choice. GC No.25
General Comments 26-30 (1997 - 2002):
[i] See GC No. 15, and communication No. 456/1991, Celepli v. Sweden
[ii] See communications No. 138/1983, Mpandajila v. Zaire, para 10; No. 157/1983, Mpaka-Nsusu vi. Zaire, para. 10; and Nos. 241/1987 and 242/1987, Birhashwirwa/Tshisekedi v. Zaire, para 13
[iii] Other practices of concern to the Committee inter alia include “lack of access for applicants to the competent authorities and lack of information regarding requirements; the requirement to apply for special forms through which the proper application documents for the issuance of a passport can be obtained; the need for supportive statements from employers or family members; exact description of the travel route; issuance of passports only on payment of high fees substantially exceeding the cost of the service rendered by the administration; unreasonable delays in the issuance of travel documents; restrictions on family members travelling together; requirement of a repatriation deposit or a return ticket; requirement of an invitation from the State of destination or from people living there; harassment of applicants, for example by physical intimidation, arrest, loss of employment or expulsion of their children from school or university; refusal to issue a passport because the applicant is said to harm the good name of the country.” GC No.27
[iv] See general comment No. 15
[v] See communications No. 106/1981, Montero v. Uruguay, para 9.4; No.57/1979, Vidal Martins v. Uruguay, para. 7; and No. 77/1980, Lichtensztejn v. Uruguay, para. 6.1
[vi] An example of this is “of nationals of a country who have been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them.” GC No.27; See also communication No. 538/1993, Stewart v. Canada
[vii] The Committee gives an example of when such conditions are not fulfilled: “if an individual were prevented from leaving a country merely on the ground that he or she is the holder of “State secrets” or if an individual were prevented from travelling internally without a specific permit.” At the same time, those conditions, highlights the Committee, are still considered to have been met if restrictions are placed “on access to military zones on national security grounds,” or if limitations are placed “on the freedom to settle in areas inhabited by indigenous or minorities communities.” GC No.27
[viii] “[A]rticle 26, on non-discrimination; article 7, if corporal punishment is imposed in order to enforce such a regulation; article 9, when failure to comply with the regulation is punished by arrest; article 12, if liberty of movement is subject to such a constraint; article 17, which guarantees all persons the right to privacy without arbitrary or unlawful interference; articles 18 and 19, when women are subjected to clothing requirements that are not in keeping with their religion or their right of self-expression; and, lastly, article 27, when the clothing requirements conflict with the culture to which the women can lay a claim.” GC No.28
[ix] General Comment No. 29 replaces General Comment No. 5 (1981).
[x] See the following comments/concluding observations: United Republic of Tanzania (1992), CCPR/C/79/Add. 12, para. 7; Dominican Republic (1993), CCPR/C/79/Add.18, para. 4; United Kingdom of Great Britain and Northern Ireland (1995), CCPR/C/79/Add.55, para.23; Peru (1996), CCPR/C/79/Add.67, para.11; Bolivia (1997), CCPR/C/79/Add.74, para. 14; Colombia (1997), CCPR/C/79/Add. 76, para. 25; Lebanon (1997), CCPR/C/79/Add.78, para. 10; Uruguay (1998), CCPR/C/79/Add.90, para. 8; Israel (1998), CCPR/C/79/Add.93, para. 11
[xi] See, for example, concluding observations on Israel (1998), CCPR/C/79/Add.93, para. 11.
[xii] GC No. 29, para. 7: “On several occasions the Committee has expressed its concern about rights that are non-derogable according to article 4, paragraph 2, being either derogated from or under a risk of derogation owing to inadequacies in the legal regime of the State party.” See the following comments/concluding observations: Dominican Republic (1993), CCPR/C/79/Add.18, para. 4; Jordan (1994) CCPR/C/79/Add.35, para. 6; Nepal (1994) CCPR/C/79/Add.42, para.9; Russian Federation (1995), CCPR/C/79/Add.54, para. 27; Zambia (1996), CCPR/C/79/Add.62, para.11; Gabon (1996), CCPR/C/79/Add.71, para.10; Colombia (1997) CCPR/C/79/Add.76, para.25; Israel (1998), CCPR/C/79/Add.93, para.11; Iraq (1997), CCPR/C/79/Add.84, para.9; Uruguay (1998) CCPR/C/79/Add.90, para. 8; Armenia (1998), CCPR/C/79/Add.100, para.7; Mongolia (2000), CCPR/C/79/Add.120, para. 14; Kyrgyzstan (2000), CCPR/CO/69/KGZ, para.12.
[xiii] GC No.29 states that in accordance with Article 4.2 the following articles of the Covenant may not be derogated from: “article 6 (right to life), article 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent), article 8, paragraph 1 and 2 (prohibition of slavery, slave-trade and servitude), article 11 (prohibition of imprisonment because of inability to fulfill a contractual obligation), article 15 (the principle of legality in the field of criminal law, i.e. the requirement of both criminal liability and punishment being limited to clear and precise provisions in the law that was in place and applicable at the time the act or omission took place, except in cases where a later law imposes a lighted penalty), article 16 (the recognition of everyone as a person before the law), and article 18 (freedom of thought, conscience and religion).”
[xiv] GC No.29, footnote no.5, “Reference is made to the Convention on the Rights of the Child which has been ratified by almost all States parties to the Covenant and does not include a derogation clause. As article 38 of the Convention clearly indicates, the Convention is applicable in emergency situations.”
[xv] GC No. 29, footnote no.6, “Reference is made to reports of the Secretary-General to the Commission on Human Rights submitted pursuant to Commission resolutions 1998/29, 1996/65 and 2000/69 on minimum humanitarian standards (later: fundamental standards of humanity), E/CN.4/1999/92, E/CN.4/2000/94 and E/CN.4/2001/91, and to earlier efforts to identify fundamental rights applicable in all circumstances, for instance the Paris Minimum Standards of Human Rights Norms in a State of Emergency (International Law Association, 1984), the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, the final report of Mr. Leandro Despouy, Special Rapporteur of the Sub-Commission, on human rights and states of emergency (E/CN.4/Sub.2/1997/19 and Add.1), the Guiding Principles on Internal Displacement (E/CN.4/1998/53/Add.2), the Turku (Abo) Declaration of Minimum Humanitarian Standards (1990), (E/CN.4/1995/116). As a field of ongoing further work reference is made to the decision of the 26th International Conference of the Red Cross and Red Crescent (1995) to assign the International Committee of the Red Cross the task of preparing a report on the customary rules of international humanitarian law applicable in international and non-international armed conflicts.”
[xvi] Those include the following: “Only a court of law may try and convict a person for a criminal offence. The presumption of innocence must be respected. In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant.” See for instance the Committee’s concluding observations on Israel (1998) (CCPR/C/9/Add.93), para. 21: “…The Committee considers the present application of administrative detention to be incompatible with articles 7 and 16 of the Covenant, neither of which allows for derogation in times of public emergency…The Committee stresses, however, that a State party may not depart from the requirement of effective judicial review of detention.”
[xvii] GC No.29, footnote no.7: “See also articles 6 (genocide) and 7 (crimes against humanity) of the [Rome] Statute which by 1 July 2001 had been ratified by 35 States. While many of the specific forms of conduct listed in article 7 of the Statute are directly linked to violations against those human rights that are listed as non-derogable provisions in article 4, paragraph 2, of the Covenant, the category of crimes against humanity as defined in that provision covers also violations of some provisions of the Covenant that have not been mentioned in the said provision of the Covenant. For example, certain grave violations of article 27 may at the same time constitute genocide under article 6 of the Rome Statute, and article 7, in turn, covers practices that are related to, besides articles 6, 7 and 8 of the Covenant, also articles 9, 12, 26 and 27.”
[xviii] GC No. 29, para. 17: “States parties have sometimes neglected to submit a notification of territorial or other changes in the exercise of their emergency powers.” See comments/concluding observations on Peru (1992) CCPR/C/79/Add.8, para. 10; Ireland (1993) CCPR/C/79/Add.21, para. 11; Egypt (1993), CCPR/C/79/Add.23, para. 7; Cameroon (1994) CCPR/C/79/Add.33, para.7; Russian Federation (1995), CCPR/C/79/Add.54, para. 27; Zambia (1996), CCPR/C/79/Add.62, para. 11; Lebanon (1997), CCPR/C/79/Add.78, para. 10; India (1997), CCPR/C/79/Add.81, para.19; Mexico (1999), CCPR/C/79/Add.109, para. 12.
[xix] This General Comment (No. 30) has replaced General Comment No.1
General Comment 31 (2004):
[i] General Comment No.31 (2004) replaces General Comment No.3 (1981)
[ii] See also General Comment No. 15.
[iii] See also General Comment No. 29.
[iv] General Comment No.31 indicates that “the enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary in many different ways, including direct applicability of the Covenant, application of comparable constitutional or other provisions of law, or the interpretive effect of the Covenant in the application of national law. Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies.”
[v] It is highlighted in this General Comment that the obligation to investigate and bring to justice perpetrators of violations, “arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (article 7), summary and arbitrary killing (article 6), and enforced disappearances (articles 7 and 9, and frequently, 6). Indeed, the problem of impunity for these violations, a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations. When committed as part of a widespread or systematic attack on a civilian population, these violations of the Covenant are crimes against humanity (see Rome Statute of the International Criminal Court, article 7).”
General Comment 32 (2007):
[i] This GC replaces GC No.13 (1984)
[ii] See GC No. 24, paragraph 8.
[iii] For instance “as article 6 of the Covenant is non-derogable in its entirety, any trial leading to the imposition of the death penalty during a state of emergency must conform to the provisions of the Covenant, including all the requirements of article 14,” (GC No. 32, para. 6). See also GC No. 29, paras. 7 and 15). Another example: “as article 7 is also non-derogable in its entirety, no statements or confessions or, in principle, other evidence obtained in violation of this provision may be invoked as evidence in any proceedings covered by article 14, including during a state of emergency, except if a statement or confession obtained in violation of article 7 is used as evidence that torture or other treatment prohibited by this provision occurred.” See also GC No. 29, paras. 7 and 15; and article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[iv] GC No. 29, para.11.
[v] See communication No. 1015/2001, Perterer v. Austria, para. 9.2 (disciplinary proceedings against a civil servant); and communication No. 961/2000, Everett v. Spain, para. 6.4 (extradition)
[vi] GC No. 32, para. 13 defines equality of arms as “the same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant.” No equality of arms could be established if “only the prosecutor, but not the defendant, is allowed to appeal a certain decision.” See communications No. 1347/2005, Dudko v. Australia, para. 7.4; and No. 1086/2002, Weiss v. Austria, para. 9.6. For another example of a violation of the principle of equality of arms see Communication No. 223/1987, Robinson v. Jamaica, para. 10.4 (adjournment of hearing).
[vii] In view of the Committee, article 13, subparagraph 3 (b), is an application of the principle of the quality of arms and an important element of the guarantee of a fair trial. This part provides that “accused persons must have adequate time and facilities for the preparation of their defence and to communicate with counsel of their own choosing. In cases of an indigent defendant, communication with counsel might only be assured if a free interpreter is provided during the pre-trial phase” (GC No. 32, para. 32). See communication No. 282/1988, Smith v. Jamaica, para. 10.4; Nos. 226/1987 and 256/1987, Sawyers, Mclean and Mclean v. Jamaica, para. 13.6; and No. 451/1991, Harward v. Norway, para. 9.5.
[viii] GC No. 32, para. 39: “Within these limits, and subject to the limitations on the use of statements, confessions and other evidence obtained in violation of article 7, it is primarily for the domestic legislatures of States parties to determine the admissibility of evidence and how their courts assess it.”
[ix] See communication No. 219/1986, Guesdon v. France, para. 10.2
[x] See communication no. 846/1999, Jansen-Gielen v. The Netherlands, para. 8.2 and No. 779/1997, Aarela and Nakkalajarvi v. Finland, para. 4.
[xi] For example, if jury trials are excluded for certain categories of offenders (see concluding observations, United Kingdom of Great Britain and Northern Ireland, CCPR/CO/73/UK (2001), para. 18) or offences.
[xii] In GC No.32, paragraph 43, the Committee indicates that, for instance “States should take measures to establish an appropriate juvenile criminal justice system, in order to ensure that juveniles are treated in a manner commensurate with their age. It is important to establish a minimum age below which children and juveniles shall not be put on trial for criminal offences; that age should take into account their physical and mental immunity.” In particular, in paragraph 44, the Committee highlights that “where the rehabilitation of juveniles alleged to have committed acts prohibited under penal law would be fostered, measures other than criminal proceedings, such as mediation between the perpetrator and the victim, conferences with the family of the perpetrator, counseling or community service or educational programmes, should be considered, provided they are compatible with the requirements of this Covenant and other relevant human rights standards.” See general comment No. 17 (1989) on article 24 (Rights of the Child), para. 4.
[xiii] See communication No. 1015/2001, Perterer v. Austria, para. 9.2
[xiv] See communication No. 112/1981, Y.L. v. Canada, paras. 9.1 and 9.2
[xv] See communications No. 454/1991, Garcia Pons v. Spain, para 9.3; No. 112/1981, Y.L. v. Canada, para. 9.3; and No. 779/1997, Aarela and Nakkalajatvi v. Finland, paras. 7.2 – 7.4
[xvi] See communication No. 468/1991, Olo Bahamonde v.Equatorial Guinea, para. 9.4. As referenced in GC, No. 32: “A situation in which an individual’s attempt to access the competent courts or tribunals are systematically frustrated de jure or de facto runs counter to the guarantees of article 14, paragraph 1, first sentence.”
[xvii] For instance, the Committee highlights in this GC that this guarantee is violated “if certain persons are barred from bringing suit against any other persons such as by reason of their race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” See communication No. 202/1986, Ato del Avellanal v. Peru, para. 10.2 (limitation of the right to represent matrimonial property before courts to the husband, thus excluding married women from suing in court). See also general comment No. 18 (1989) on non-discrimination, para. 7.
[xviii] See communication no. 450/1991, I.P. v. Finland, para. 6.2
[xix] See communication no.837/1998, Kolanowski v. Poland, para. 6.4; No. 972/2001, Kazantzis v. Cyprus, para. 6.5; No. 943/2000, Jacobs v. Belgium, para. 8.7; and No. 1396/2005, Rivera Fernandez v. Spain, para. 6.3.
[xx] See communication No. 1015/2001, Perterer v. Austria, para. 9.2 (disciplinary dismissal).
[xxi] See communications Nos. 1341/2005, Zundel v. Canada, para. 6.8; and No. 1359/2005, Esposito v. Spain, para. 7.6.
[xxii] GC No. 32 states in paragraph 10 that “where a person sentenced to death seeks available constitutional review of irregularities in a criminal trial but does not have sufficient means to meet the costs of legal assistance in order to pursue such remedy, the State is obliged to provide legal assistance in accordance with article 14, paragraph 1, in conjunction with the right to an effective remedy as enshrined in article 2, paragraph 3 of the Covenant.” See for instance communications No. 377/1989, Currie v. Jamaica, para. 13.4; No. 704/1996, Shaw v. Jamaica, para. 7.6; No. 07/1996, Taylor v. Jamaica, para. 802; No.752/1997, Henry v. Trinidad and Tobago, para. 7.6; and No. 845/1998, Kennedy v. Trinidad and Tobago, para. 7.10.
[xxiii] See communications No. 646/1995, Lindon v. Australia, para. 6.4; and communication No. 779/1997, Aarela and Nakkalajarvi v. Findald, para. 7.2
[xxiv] See communication no. 263/1987, Gonzalez del Rio v. Peru, para. 5.2
[xxv] Here (GC No.32, para. 19), the Committee highlights that “A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal.” See concluding observations on Slovakia, CCPR/C/79/Add.79 (1997), para. 18; and communication No. 468/1991, Olo Bahamonde v. Equatorial Guinea, para. 9.4
[xxvi] For instance, in GC No.32, para. 20, the Committee states that “The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary. The same is true, for instance, for the dismissal by the executive of judges alleged to be corrupt, without following any of the procedures provided for by the law.” See communications nos. 814/1998, Pastukhov v. Belarus, para. 7.3; and No. 933/2000, Mundyo Busyo et al v. Democratic Republic of Congo, para. 5.2
[xxvii] In GC No. 32, para. 21, the Committee gives the following example: “a trial substantially affected by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be impartial.” See also communication No. 387/1989, Karttunen v. Finland, para. 7.2.
[xxviii] GC No. 32, para. 22
[xxix] Also see Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, art. 64, communication No. 1172/2003, Madani v. Algeria, para. 8.7, and general comment No.31 (2004) on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant,” para. 11.
[xxx] In GC No. 32, para. 23, the Committee indicates that other such irregularities include: “restrictions of the right to a lawyer of their own choice; severe restrictions or denial of the right to communicate with their lawyers, particularly when held incommunicado; threats to the lawyers; inadequate time for preparation of the case; or severe restrictions or denial of the right to summon and examine or have examined witnesses, including prohibitions on cross-examining certain categories of witnesses, e.g. police officers responsible for the arrest and interrogation of the defendant.” See communications No. 1298/2004, Becerra Barney v. Colombia, para. 7.2; No. 577/1994, Polay Campos v. Peru, para. 8.8; No. 678/1996, Gutierrez Vivanco v. Peru, para. 7.1; No. 1126/2002, Carranza Alegre v. Peru, para. 7.5; No. 577/1994, Polay Campos v. Peru, para. 8.8; No. 1058/2002, Vargas Mas v. Peru, para. 6.4; and No.1125/2002, and Quispe Roque v. Peru, para. 7.3
[xxxi] The Committee states in this GC, paragraph 25, that “A hearing is not fair if, for instance, the defendant in criminal proceedings is faced with the expression of a hostile attitude from the public or support for one party in the courtroom that is tolerated by the court, thereby impinging on the right to defence, or is exposed to other manifestations of hostility with similar effects. Expressions of racist attitudes by a jury that are tolerated by the tribunal, or a racially biased jury selection are other instances which adversely affect the fairness of the procedure.” See communication no.770/1997, Gridin v. Russian Federation, para. 8.2; and Committee on the Elimination of Racial Discrimination, communication No. 3/1991, Narrainen v. Norway, para. 9.3
[xxxii] See communications No. 273/1988, B.d.B v. The Netherlands, para. 6.3; No. 1097/2002, Martinez Mercader et al v. Spain, para. 6.3; No. 1188/2003, Riedl-Riedenstein et al. v. Germany, para. 7.3; No.886/1999, Bondarenko v. Belarus, para. 9.3; No. 1138/2002, Arenz et al. v. Germany, admissibility decision, para. 8.6; No. 253/1987, Kelly v. Jamaica, para. 5.13; and No. 349/1989, Wright v. Jamaica, para. 8.3
[xxxiii] See communication No. 203/1986, Munoz Hermoza v. Peru, para. 11.3; and No. 514/1992, Fei v. Colombia, para. 8.4. In this GC, para. 27, the Committee states that “Where such delays are caused by a lack of resources and chronic under-funding, to the extent possible supplementary budgetary resources should be allocated for the administration of justice.” See also concluding observations on Democratic Republic of Congo, CCPR/C/COD/CO/3 (2006), para. 21, and on Central African Republic, CCPR/C/CAF/CO/2 (2006), para. 16.
[xxxiv] The circumstances that are highlighted by article 14, paragraph 1, when the public could be excluded from a hearing include those “for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would be prejudicial to the interests of justice.” The Committee highlights in GC No. 32, par. 29 that even in those cases, “the judgment, including the essential findings, evidence and legal reasoning must be made public, except where the interest of juvenile persons otherwise requires, or the proceedings concern matrimonial disputes or the guardianship of children.”
[xxxv] See communications Nos. 215/1986, Van Meurs v. The Netherlands, para. 6.2, and No. 301/1988, R.M. v. Finland, para. 6.4
[xxxvi] See communications No. 770/1997, Gridin v. Russian Federation, paras. 3.5 and 8.3; No. 788/1997, Cagas, Butin and Astillero v. Philippines, para. 7.3; No. 207/1986, Morael v. France, para. 9.5; No. 408/1990, W.J.H. v. The Netherlands, para. 6.2; and No. 432/1990, W.B.E. v. The Netherlands, para.6.6. On the relationship between article 14, paragraph 2 and article 9 of the Covenant (pre-trial detention) see for example concluding observations on Italy, CCPR/C/ITA/CO/5 (2006), para. 14 and on Argentina, CCPR/CO/70/ARG (2000), para.10
[xxxvii] See communications No. 1056/2002, Khachatrian v. Armenia, para. 6.4; No. 253/1987, Kelly v. Jamaica, para. 5.8; and No. 1128/2002, Marques de Morais v. Angola, para. 5.4. For specific cases on trials in absentia (article 14, paragraph 3 (a)), see for example communication No. 16/1977, Mbenge v. Zaire, para. 14.1.
[xxxviii] See communications No.1128/2002, Morais v. Angola, para. 5.6; No. 349/1989, Wright v. Jamaica, para. 8.4; No. 272/1988, Thomas v. Jamaica, para. 11.4; No. 230/87, Henry v. Jamaica, para. 8.2; and Nos. 226/1987 and 256/1987, Sawyers, Mclean and Mclean v. Jamaica, para. 13.6
[xxxix] See communication No. 1128/2002, Marquez de Morais v. Angola, para. 5.4
[xl] Communications No. 913/2000, Chan v. Guyana, para. 6.3; and No. 594/1992, Phillip v. Trinidad and Tobago, para. 7.2
[xli] See concluding observations on Canada, CCPR/C/CAN/CO/5 (2005), para. 13.
[xlii] See communication No. 451/1991, Harvard v. Norway; No. 1117/2002, Khomidova v. Tajikistan, para. 6.4; No. 907/2000, Siragev v. Uzbekistan, para. 6.3; and No. 770/1997, Gridin v. Russian Federation, para. 8.5
[xliii] See e.g. communication No. 818/1998, Sextus v. Trinidad and Tobago, para. 7.2 regarding a delay of 22 months between the charging of the accused with a crime carrying the death penalty and the beginning of the trial without specific circumstances justifying the delay. In communication No. 537/1993, Kelly v. Jamaica, para. 5.11, an 18 months delay between charges and beginning of the trial did not violate art. 14, para. 3 (c). See also communication No. 676/1996, Yasseen and Thomas v. Guyana, para. 7.11 (delay of two years between a decision by the Court of Appeal and the beginning of a trial) and communication No. 938/2000, Siewpersaud, Sukhram, and Persaud v. Trinidad v. Tobago, para. 6.2 (total duration of criminal proceedings of almost five years in the absence of any explanation from the State party justifying the delay).
[xliv] See communications No. 1089/2002, Rouse v. Philippines, para. 7.4; and No. 1085/2002, Traight, Touadi, Remli and Yousfi v. Algeria, para. 8.5.
[xlv] GC No. 32, para. 36: “Proceedings in the absence of the accused may in some circumstances be permissible in the interest of the proper administration of justice, i.e. when accused persons, although informed of the proceedings sufficiently in advance, decline to exercise their right to be present. Consequently, such trials are only compatible with article 14, paragraph 3 (d) if the necessary steps are taken to summon accused persons in a timely manner and to inform them beforehand about the date and place of their trial and to request their attendance.” See communications No. 16/1977, Mbenge v. Zaire, para. 14.1; and No. 699/1996, Maleki v. Italy, para. 9.3.
[xlvi] This could be the case, “particularly in cases of persons substantially and persistently obstructing the proper conduct of trial, or facing a grave charge but being unable to act in their own interests, or where this is necessary to protect vulnerable witnesses from further distress or intimidation if they were to be questioned by the accused.” GC No. 32, para. 37
[xlvii] See communication No. 1123/2002, Correia de Matos v. Portugal, paras. 7.4 and 7.5
[xlviii] For instance, the Committee is of the view that in such cases as those “involving capital punishment, it is axiomatic that the accused must be effectively assisted by a lawyer at all stages of the proceedings.” See communications No. 646/1995, Lindon v. Australia, para. 6.5; No. 985/2001, Aliboeva v. Tajikistan, para. 6.4; No. 964/2001, Saidova v. Tajikistan, para. 6.8; No. 781/1997, Aliev v. Ukraine, para. 7.3; No. 554/1993, LaVende v. Trinidad and Tobago, para. 58; and No. 341/1988, Z.P. v. Canada, para. 5.4.
[xlix] Other examples “of blatant misbehavior or incompetence” include “absence during the hearing of a witness in such cases” or “if the court or other relevant authorities hinder appointed lawyers from fulfilling their task effectively.” See communication No. 383/1989, H.C. v. Jamaica, para. 6.3; No. 253/1987, Kelly v. Jamaica, para. 9.5; No. 838/1998, Hendricks v. Guyana, para. 6.4; No. 980/2001, Hussain v. Mauritius, para. 6.3 for the case of an absence of an author’s legal representative during the hearing of a witness in a preliminary hearing; No. 705/1996, Taylor v. Jamaica, para. 6.2; No. 917/2000, Arutyunyan v. Uzbekistan, para. 6.3; and No. 913/2000, Chan v. Guyana, para. 6.2
[l] See article 7 of the Covenant; communications No. 1208/2003, Kurbonov v. Tajikistan, paras. 6.2 – 6.4; No. 1044/2002, Shukurova v. Tajikistan, paras. 8.2 – 8.3; No. 1033/2001, Singarasa v. Sri Lanka, para. 7.4; No. 912/2000, Deolall v. Guyana, para. 5.1; and No. 253/1987, Kelly v. Jamaica, para. 5.5
[li] See communication No. 1033/2001, Singarasa v. Sri Lanka, para. 7.4; and No. 253/1987, Kelly v. Jamaica, para. 7.4. See also the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 15; and para. 6 of GC 32.
[lii] See communication No. 1095/2002, Gomariz Valera v. Spain, para. 7.1; and No. 64/1979, Salgar de Montejo v. Colombia, para. 10.4
[liii] In GC No. 32, para. 47, the Committee states that this provision could be violated in situations when “the decision by the court of first instance is final,…[and] where a conviction imposed by an appeal court or a court of final instance, following acquittal by a lower court, according to domestic law, cannot be reviewed by a higher court.” Further, as stated in GC. No.32, para. 51, “The right to have one’s conviction reviewed is also violated if defendants are not informed of the intention of their counsel not to put any argument to the court, thereby depriving them of the opportunity to seek alternative representation, in order that their concerns may be ventilated at the appeal level.” See communications No. 1089/2002, Rouse v. Philippines, para. 7.6; and No. 230/1987, Henry v. Jamaica, para. 8.4. See also communications No. 1095/2002, Gomariz Valera v. Spain, para. 7.1; No. 1073/2002, Terron v. Spain, para. 7.4; No. 750/1997, Daley v. Jamaica, para. 7.5; No. 680/1996, Gullimore v. Jamaica, para. 7.4; No. 668/1995, Smith and Stewart v. Jamaica, para. 7.3; and No. 928/2000, Sooklal v. Trinidad and Tobago, para. 4.10.
[liv] Para. 49 of GC No. 32 states that this right can only be exercised effectively “if the convicted person is entitled to have access to a duly reasoned, written judgment of the trial court, and, at least in the court of first appeal where domestic law provides for several instances of appeal, also to other documents, such as trial transcripts, necessary to enjoy the effective exercise of the right to appeal. The effectiveness of this right is also impaired, and article 14, paragraph 5 violated, if the review by the higher instance court is unduly delayed in violation of paragraph 3 (c) of the same provisions.” See communications No. 903/1999, Van Hulst v. Netherlands, para. 6.4; No. 709/1996, Bailey v. Jamaica, para. 7.2; No. 663/1995, Morrison v. Jamaica, para. 7.5; No. 662/1995, Lumley v. Jamaica, para. 7.5; No. 845/1998, Kennedy v. Trinidad and Tobago, para. 7.5; No. 818/1998, Sextus v. Trinidad and Tobago, para. 7.3; No. 750/1997, Daley v. Jamaica, para. 7.4; No. 665/1995, Brown and Parish v. Jamaica, para. 9.5; No. 614/1995, Thomas v. Jamaica, para. 9.5; No. 590/1994, Bennet v. Jamaica, para. 10.5
[lv] See communications No. 450/1991, I.P. v. Finland, para. 6.2; and No. 352/1989, Douglas, Gentles, Kerr v. Jamaica, para. 11.2
[lvi] See communications No. 1100/2002, Bandajevsky v. Belarus, para. 10.13; and No. 838/1998, Gelazauskas v. Lithuania, para. 7.2
[lvii] For instance, in GC No.32, para. 48, the Committee states that “ a review that is limited to the formal or legal aspects of the conviction without any consideration whatsoever of the facts is not sufficient under the Covenant.” See communications No. 1100/2002, Bandajevsky v. Belarus, para. 19.13; No. 985/2001, Aliboeva v. Tajikistan, para. 6.5; No. 973/2001, Khalilova v. Tajikistan, para. 7.5; No. 623-627/1995, Domukovsky et al v. Georgia, para. 18.11; No. 964/2001, Saidova v. Tajikistan, para. 6.5; No. 802/1998, Rogerson v. Australia, para. 7.5; No. 662/1995, Lumley v. Jamaica, para. 7.3; and No. 701/1996, Gomez Vazquez v. Spain, para. 11.1.
[lviii] See communications No. 1110/2002, Rolando v. Philippines, para. 4.5; No. 984/2001, Juma v. Australia, para. 7.5; and No. 536/1993, Perera v. Australia, para. 6.4. For example, para. 48 of GC No. 32 states that the Covenant is not violated “where a higher instance court looks at the allegations against a convicted person in great detail, considers the evidence submitted at the trial and referred to in the appeal, and finds that there was sufficient incriminating evidence to justify a finding of guilt in the specific case.” See also communications No. 1156/2003, Perez Escolar v. Spain, para. 3; and No. 1389/2005, Bertelli Galvez v. Spain, para. 4.5
[lix] See communication no. 554/1993, LaVende v. Trinidad and Tobago, para. 5.8
[lx] General comment No. 32, para. 52.
[lxi] See also communications No. 963/2001, Uebergang v. Australia, para. 4.2; No. 880/1999, Irving v. Australia, para. 8.3; and No. 408/1990, W.J.H. v. Netherlands, para. 6.3.
[lxii] See communications No. 880/1999; Irving v. Australia, para. 8.4; No. 868/1999, Wilson v. Philippines, para. 6.6; and No. 89/1981, Muhonen v. Finland, para. 11.2.
[lxiii] For example, “someone acquitted by a civilian court cannot be tried again for the same offence by a military or special tribunal (GC No. 32).”
[lxiv] See communication No. 277/1988, Teran Jijon v. Ecuador, para. 5.4
[lxv] See communication No.1001/2001, Gerardus Strik v. The Netherlands, para. 7.3
[lxvi] See communication No. 692/1996, A.R.J. v. Australia, para. 6.4; and No.204/1986, A.P. v. Italy, para. 7.3. See also i.e. Rome Statute of the International Criminal Court, article 20, para. 3
[lxvii] See United Nations Working Group on Arbitrary Detention, Opinion No. 36/1999 (Turkey), E./CN.4/2001/14/Add. 1, para. 9 and Opinion No.24/2003 (Israel), E/CN.4/2005/6/Add. 1, para. 30
[lxviii] See for example communication No. 1033/2001, Singarasa v. Sri Lanka, para. 7.4 and No. 823/1998, Czernin v. Czech Republic, para. 7.5
[lxix] See communication No. 1073/2002, Terron v. Spain, para. 6.6
[lxx] See communication No. 1044/2002, Shakurova v. Tajikistan, para. 8.5 (violation of art. 14 para. 1 and 3 (b), (d) and (g)); No. 915/2000, Ruzmetov v. Uzbekistan, para. 7.6 (violation of art. 14, para. 1, 2 and 3 (b), (d), (e) and (g)); No. 913/2000, Chan v. Guyana, para. 5.4 (violation of art. 14 para. 3 (b) and (d)); and No. 1167/2003, Rayos v. Philippines, para. 7.3 (violation of art. 14 para. 3 (b)).
[lxxi] See communications No. 1044/2002, Shakurova v. Tajikistan, para. 8.2; No. 915/2000, Ruzmetov v. Uzbekistan, paras 7.2 and 7.3; and No. 1042/2001, Boimurodov v. Tajikistan para. 7.2. See also para. 6 and 41 of this General Comment.
[lxxii] See communications No. 908/2000, Evans v. Trinidad and Tobago, para. 6.2; and No. 838/1998, Hendricks v. Guayana, para. 6.3
[lxxiii] See communication No. 1051/2002 Ahani v. Canada, para. 10.9; No. 961/2000, Everett v. Spain, para. 6.4 (extradition); and No. 1438/2005, Taghi Khadje v. Netherlands, para. 6.3
[lxxiv] GC No. 32, para. 63: “for instance, to keep pending, for several years, indictments for the criminal offence of defamation brought against a journalist for having published certain articles, in violation of article 14, paragraph 3 (c), may leave the accused in a situation of uncertainty and intimidation and thus have a chilling effect which unduly restricts the exercise of his right to freedom of expression (article 19 of the Covenant). Similarly, delays of criminal proceedings for several years in contravention of article 14, paragraph 3 (c), may violate the right of a person to leave one’s own country as guaranteed in article 12, paragraph 2 of the Covenant, if the accused has to remain in that country as long as proceedings are pending.” See communication No. 961/2000, Mujuwana Kankanamge v. Sri Lanka, para. 9.4; and No. 263/1987, Gonzales del Rio v. Peru, paras. 5.2 and 5.3
[lxxv] See communications No. 933/2000, Mundyo Busyo et al. v. Democratic Republic of Congo, para. 5.2; and No. 814/1998, Pastukhov v. Belarus, para. 7.3
[lxxvi] See communication No. 202/1986, Ato del Avellanal v. Peru, paras. 10.1 and 10.2
General Comments 33 & 34 (2008 & 2011)
[i] GC No.33. See also Rules of Procedure of the Human Rights Committee, Rule 97(2). UN Doc. CCPR/C/3/Rev.8, 22 September 2005.
[ii] This is the term found in article 5.4 of the Optional Protocol to describe the decisions of the Committee. In French, the term is “constatations” and in Spanish it is “observaciones.”
[iii] The position of the Special Rapporteur for the Follow-Up of Views was created in 1997 under the Committee’s rules of procedure, Rule 101. In GC No.33, the Committee states that this “has led to acceptance and implementation of the Committee’s views where previously the transmission of those views had met with no response.”
[iv] UN Doc. CCPR/C/3/Rev.8, 22 September 2005, Rule 92 (Previously Rules 86): “The Committee may, prior to forwarding its Views on the communication to the State party concerned, inform the State of its Views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation. In doing so, the Committee shall inform the State party concerned that such expression of its Views on interim measures does not imply a determination on the merits of the communication.”
[v] This General Comment replaces General Comment No.10 (1983)
[vi] See communication No. 1173/2003, Benhadj v. Algeria, Views adopted on 20 July 2007; and No. 628/1995, Park v. Republic of Korea, Views adopted on 5 July 1996.
[vii] Article 5, paragraph 1: “nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.”
[viii] See communication No. 550/93, Faurisson v. France; and concluding observations on Australia (CCPR/C/AUT/CO/4), on Slovakia (CCPR/CO/78/SVK), and on Israel (CCPR/CO/78/ISR).
[ix] See communications No. 927/2000, Svetik v. Belarus, Views adopted on 8 July 2004; and No. 736/97, Ross v. Canada, Views adopted on 18 October 2000. In clarifying the phrase “constructed with care” the Committee gives the following example: “while it may be permissible to protect voters from forms of expression that constitute intimidation or coercion, such restrictions must not impede political debate, including, for example, calls for the boycotting of a non-compulsory vote.”
[x] See Concluding Observations on Hong Kong (CCPR/C/HKG/CO/2), on the Russian Federation (CCPR/CO/79/RUS), and on Uzbekistan (CCPR/CO/71/UZB); See also communication No. 518/1992, Sohn v. Republic of Korea, Views adopted on 18 March 1994. The Committee highlights that, “it is not compatible with paragraph 3, for instance, to invoke such laws [treason laws] to suppress or withhold from the public information of legitimate public interest that does not harm national security or to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated such information. Nor is it generally appropriate to include in the remits of such laws such categories of information as those relating to the commercial sector, banking, and scientific progress.”
[xi] See communication No. 1157/2003, Coleman v. Australia; and No. 1373/2005, Dissanayake v. Sri Lanka
[xii] In GC No.34, the Committee gives the following example for the test of necessity: “a prohibition on commercial advertising in one language, with a view to protecting the language of a particular community, violates the test of necessity if the protection could be achieved in other ways that do not restrict freedom of expression. On the other hand, the Committee has considered that a State party complied with the test of necessity when it transferred a teacher who had published materials that expressed hostility toward a religious community to a non-teaching position in order to protect the right and freedom of children of that faith in a school district.” With regards to the test of proportionality, the Committee recalled in GC No. 34 what it has previously stated in GC No. 27, para. 14: “‘restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected…The principle of proportionality has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law.’ The principle of proportionality,” States the Committee in GC No. 34, “must also take account of the form of expression at issue as well as the means of its dissemination. For instance, the value placed by the Covenant upon uninhibited expression is particularly high in the circumstances of public debate in a democratic society concerning figures in the public and political domain.”
[xiii] See communications No. 1022/2001, Velichkin v. Belarus, Views adopted on 20 October 2005; No.359, 385/89, Ballantyne, Davidson and McIntyre v. Canada; No. 736/97, Ross v. Canada, Views adopted on 17 July 2006; and No. 1180/2003, Bodrozic v. Serbia and Montenegro, Views adopted on 31 October 2005. See also General Comment No.22.
[xiv] See communications No. 633/95, Gauthier v. Canada; and No.1373/2005, Dissanayake v. Sri Lanka, Views adopted on 22 July 2008. Also see General Comment No.32
[xv] See communications No. 578/1994, de Groot v. The Netherlands, Views adopted on 14 July 1995; No. 1553/2007, Korneeko et al v. Belarus, Views adopted on 31 October 2006; and No. 132/1982, Jaona v. Madagascar, Views adopted on 1 April 1085. See also General Comment No. 27.
[xvi] See General Comment No.20 and communication No. 488/1992, Toonen v. Australia, Views adopted on 30 March 1994. Also recall what the Committee “observed in general comment No. 22, that ‘the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations…for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.’ Any such limitations must be understood in the light of universality of human rights and the principle of non-discrimination” (Stated in GC No.34).
[xvii] See communication No. 926/2000, Shin v. Republic of Korea.
[xviii] See communication No. 61/1979, Hertzberg et al. v. Finland, Views adopted on 2 April 1982.
[xix] See communication No. 633/1995, Gauthier v. Canada, Views adopted on 7 April 1999.
[xx] See communication No. 550/93, Faurisson v. France, Views adopted on 8 November 1996; communication No. 157/1983, Mpaka-Nsusu v. Zaire, Views adopted on 26 March 1986; and No. 414/1990, Mika Miha v. Equatorial Guinea, Views adopted on 8 July 1994.
[xxi] See communication No. 878/1999, Kang v. Republic of Korea, Views adopted on 15 July 2003.
[xxii] See communication Nos. 359/1989 and 385/1989, Ballantyne, Davidson and McIntyre v. Canada, Views adopted on 18 October 1990.
[xxiii] See the following communications: No.414/1990, Mika Miha v. Equatorial Guinea; No.1189/2003, Fernando v. Sri Lanka, Views adopted on 31 March 2005; No. 1157/2003, Coleman v. Australia, Views adopted on 17 July 2006; No. 1022/2001, Velichkin v. Belarus, Views adopted on 20 October 2005; No. 1334/2004, Mavlonov and Sa’di v. Uzbekistan, Views adopted on 19 March 2009; No. 926/2000, Shin v. Republic of Korea, Views adopted on 16 March 2004; and No. 736/97, Ross v. Canada, Views adopted on 18 October 2000. See also Concluding Observations on Japan (CCPR/C/JPN/CO/5)
[xxiv] See communications No. 926/2000, Shin v. Republic of Korea; No.1341/2005, Zundel v. Canada, Views adopted on 20 March 2007; No. 1009/2001, Shchetoko et al. v. Belarus, Views adopted on 11 July 2006; No. 412/1990, Kivenmaa v. Finland, Views adopted on 31 March 1994; and No. 1189/2003, Fernando v. Sri Lanka.
[xxv] See communication No. 1128/2002, Marques v. Angola, Views adopted on 29 March 2005.
[xxvi] See Concluding Observations on Republic of Moldova (CCPR/CO/75/MDA)
[xxvii] See communication No. 1334/2004, Mavlonov and Sa’di v. Uzbekistan
[xxviii] See communications No. 633/95, Gauthier v. Canada; and No. 1334/2004, Mavlonov and Sa’di v. Uzbekistan. In General Comment No.16 on article 17, the Committee states that “every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes. Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files.” Every individual has the right “to have his or her records rectified,” in cases when its determined that relevant files contain “incorrect personal data or have been collected or processed contrary to the provisions of the law.”
[xxix] See communication No. 726/1996, Zheludkov v. Ukraine, Views adopted on 29 October 2002. See also General Comments No.31 and No.32.
[xxx] See Concluding Observations on Azerbaijan (CCPR/C/79/Add.38 (1994)). See also General Comment No. 25, where the Committee has elaborated on the importance of this right for the conduct of public affairs and the exercise of the right to vote (GC No.25, para. 25).
[xxxi] See communication No. 1457/2006, Poma v. Peru, Views adopted on 27 March 2009.
[xxxii] See communications No. 458/91, Mukong v. Cameroon, Views adopted on 21 July 1994; and No. 1353/2005, Njaru v. Cameroon, Views adopted on 19 March 2007. See also the concluding observations on Algeria (CCPR/C/DZA/CO/3), on Costa Rica (CCPR/C/CRI/CO/5), on Georgia (CCPR/C/GEO/CO/3), on Guyana (CCPR/C/79/Add.121) and on Sudan (CCPR/C/SDN/CO/3).
[xxxiii] See communications No. 518/1992, Sohn v. Republic of Korea; No. 511/1992, Ilmari Lansman, et al. v. Finland, Views adopted on 14 October 1993; and No. 926/2000, Shin v. Republic of Korea.
[xxxiv] See concluding observations on Japan (CCPR/C/JPN/CO/5), on Tunisia (CCPR/C/TUN/CO/5), on Togo (CCPR/CO/76/TGO), and on Moldova (CCPR/CO/75/MDA).
[xxxv] See communications No. 968/2001, Kim v. Republic of Korea, Views adopted on 14 March 1996; No.1180/2003, Bodrozic v. Serbia and Montenegro, Views adopted on 31 October 2005; No. 1128/2002, Marques v. Angola; and Nos. 422-424/1990, Aduayom et al v. Togo, Views adopted on 30 June 1994. See also the Committee’s Concluding Observations on the Dominican Republic (CCPR/CO/71/DOM); on Honduras (CCPR/C/HND/CO/1); on Zambia (CCPR/ZMB/CO/3), para.25; on Tunisia (CCPR/C/TUN/CO/5), para.91; and on Costa Rica (CCPR/C/CRI/CO/5), para.11.
[xxxvi] See concluding observations on Viet Nam (CCPR/CO/75/VNM), para.18; on Lesotho (CCPR/CO/79/Add.106), para. 22 and 23; on Gambia (CCPR/CO/75/GMB); on Lebanon (CCPR/CO/79/Add.78), para 25; on Kuwait (CCPR/CO/69/KWT); on Ukraine (CCPR/CO/73/UKR); on Kyrgyzstan (CCPR/CO/69/KGZ); on Guyana (CCPR/CO/79/Add.121), para. 19; on the Russian Federation (CCPR/CO/79/RUS); on Italy (CCPR/C/79/Add.37); on Sri Lanka (CCPR/CO/79/LKA); on Peru (CCPR/CO/70/PER); on the Syrian Arab Republic (CCPR/CO/84/SYR); and on Togo (CCPR/CO/76/TGO), para. 17.
[xxxvii] See also concluding observations on Uzbekistan (CCPR/CO/83/UZB); on Morocco (CCPR/CO/82/MAR); on Democratic People’s Republic of Korea (CCPR/CO/72/PRK); and on Kuwait (CCPR/CO/69/KWT).
[xxxviii] See concluding observations on the United Kingdom of Great Britain and Northern Ireland (CCPR/C/GBR/CO/6); and on the Russian Federation (CCPR/CO/79/RUS).
[xxxix] See concluding observations on the United Kingdom of Great Britain and Northern Ireland (CCPR/C/GBR/CO/6); on Italy (CCPR/C/ITA/CO/5); and on the Former Yugoslav Republic of Macedonia (CCPR/C/MKD/CO/2). See also communication No. 909/2000, Kankanamge v. Sri Lanka, Views adopted on 27 July 2004.
[xl] It is stated that it is impermissible “for any such laws to discriminate in favor of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.” See concluding observations on the United Kingdom of Great Britain and Northern Ireland-the Crown Dependencies of Jersey, Guernsey and the Isle of Man (CCPR/C/79/Add.119); and on Kuwait (CCPR/CO/69/KWT).
[xli] Such are known as “memory-laws;” see communication No. 550/93, Faurisson v. France; and concluding observation on Hungary (CCPR/C/HUN/CO/5) paragraph 19.
[xlii] See communication No. 736/1997, Ross v. Canada, Views adopted on 18 October 2000.
General Comment 35 (2013/2014):
[i]is General Comment replaces GC No. 8.
[ii] See communication Nos. 265/1987, Vuolanne v. Finland, para. 9.3; No. 1069/2002, Bakhatiyari v. Australia, para. 9.5; No. 1062/2002, Fijalkowska v. Poland, para. 8.3; No. 1090/2002, Rameka v. New Zealand, paras. 7.2-7.3; and No. 1051/2002, Ahani v. Canada, para. 10.3
[iii] GC. No. 35, para. 6: “examples of deprivations of liberty include police custody, remand detention, imprisonment after conviction, house arrest, involuntary hospitalization, and confinement to a restricted area of an airport, and also include being involuntarily transported. They also include certain further restrictions on a person who is already detained, for example, solitary confinement or physical restraining devices. The issuance of an arrest warrant is not in itself a present deprivation of liberty. During a period of military service, restrictions that would amount to deprivations of liberty for a civilian may not amount to deprivation of liberty if they do not exceed the exigencies of normal military service or deviate from the normal conditions of life within the armed forces of the State party concerned. Recruitment and retention in service of child soldier, however, amount to a deprivation of liberty.”
[iv] See communications No. 854/1999, Wackenheim v. France, para. 6.3; No. 263/1987, Gonzalez del Rio v. Peru, para. 5.1; No. 1134/2002, Gorji – Dinka v. Cameroon, para. 5.4; No. 754/1997, A. v. New Zealand, para. 17; No. R.12/52, Saldias de Lopez v. Uruguay, para. 13; No. 833/1998, Karker v. France, para. 8.5; No. 456/1991, Celepli v. Sweeden, para. 6.1; and No. 265/1987, Vuolanne v. Finland, para. 9.4. Also see the following concluding observations on the United Kingdom, 2008, para. 17, on Moldova 2010, para. 13; on Belgium 2004, para. 17; on Denmark 2009, para. 11; on Czech Republic 2007, para. 13; On Republic of Korea 2007, para. 13; on Croatia 2010, para. 12; and on Chad 2009, para. 33.
[v] See communication no. 1758/2008, Jessop v. New Zealand, para. 7.9 - 7.10.
[vi] See communication no. 195/1985, Delgado Paez v. Colombia, paras. 5.4-5.6; and No. 613/1995, Leehong v. Jamaica, para. 9.3. See also concluding observations on Moldova 2002, para. 9: “Danger to the health and lives of detainees as a result of the spread of contagious diseases and inadequate care amounts to a violation of article 10 of the Covenant and may also include a violation of articles 9 and 6.”
[vii] See communication No. 1560/2007, Marcellana and Gumanoy v. Philippines, para. 7.7; and Concluding observations on Uganda 2004, para. 12.
[viii] See communications No. 821/1998, Chongwe v. Zambia, para. 5.3; No. 1250/2005, Lalith Rajapakse v. Sri Lanka, para. 9.7; and No. 1432/2005, Gunaratna v. Sri Lanka, para. 8.4. See also concluding observations on Sri Lanka 2003, para. 9; on Bosnia and Herzegovina 2006, para. 13 and 16; and on the Philippines, para. 16.
[ix] See communications No. 821/1998, Chongwe v. Zambia, para. 5.3; 1250/2005, Lalith Rajapakse v. Sri Lanka, 9.7; No.1432/2005, Gunaratna v. Sri Lanka, para. 8.4; No. 1560/200, Marcellana and Gumanoy v. Philippines, para. 7.7; and No. 613/1995, Leehong v. Jamaica, para. 9.3. See also the following concluding observations: on Sri Lanka 2003, para 9; on Bosnia and Herzegovina 2006, para. 13; on the Philippines 2012, para. 14 and 16; on Jamaica 2012, para. 15; on the Philippines 2004, para. 8; on Guatemala 2001, para.21; on Georgia 2002, para. 14; on Republic of the Congo 2000, para. 271; on Portugal 2012, para. 12; on Lithuania 1998, para. 168 and 169; on Ukraine 2002, para. 16; on El Salvador 2003, para. 16; on Romania 1999, para. 371; on Azerbaijan 2009, para. 11; on Belgium 2011, para. 1.4; on Guatemala 2012, para. 16; on the United States of America 1995, para. 282; and on Yemen 2012, para. 16.
[x] See communication No. 1124/2002, Obodzinsky v. Canada, para. 8.5
[xi] See concluding observations on Guatemala 1996, para. 232; on Yemen 2012, para. 24; and on the Philippines 2012, para. 14.
[xii] See concluding observations on Colombia 1997, para. 278; on India 1997, para. 433; on Japan 1999, para. 171; on Ugunda 2004, para. 12; and on Yemen 2012, para. 24
[xiii] See concluding observations on Colombia 1997, para. 278; on Yemen 2012, para. 24; and on the Philippines 2012, para. 14
[xiv] See concluding observations on United Kingdom, 1995, para. 423; on Algeria 1998, para. 356; on the United Republic of Tanzania 1998, para. 403; and on Guatemala 2012, para. 16.
[xv] See concluding observations on Algeria 1998, para. 356; Guatemala 2012, para. 16; and Yemen 2012, para.24
[xvi] See communication No. 414/1990, Mika Miha v. Equatorial Guinea, para. 6.5; No. 992/2001, Bousroual v. Algeria, para. 9.5; No. 1460/2006, Yklymova v. Turkmenistan, para. 7.2; and No. 856/1999, Chambala v. Zambia, para. 16. See also the concluding observation on Brazil 2006, para. 16.
[xvii] For examples, see GC No.35, para. 13: “Remand in custody must be reasonable and necessary in all the circumstances. A decision to keep a person in detention should be open to periodic review, and should not continue beyond the period for which a State party can provide appropriate justification.” See communication No. 1134/2002, Gorji-Dinka v. Cameroon, para. 5.1; No. 305/1988, Van Alphen v. The Netherlands, para. 5.8; No. 560/1993, A. v. Australia, para. 9.2; No. 1369/2005, Kulov v. Kyrgyzstan, para. 8.3; and No. 1324/2004, Shafiq v. Australia, para. 7.2
[xviii] See communication no. 631/1995, Spakmo v. Norway, para. 6.3 (finding that the arrest was not arbitrary or unlawful, but that the duration of the subsequent eight-hour detention was unreasonable and therefore arbitrary); No. 1460/2006, Yklymova v. Turkmenistan, paras. 7.2 – 7.3 (de facto house arrest); and No. 1096/2002, Kurbanova v. Tajikistan, para. 7.2 (actual detention prior to issuance of arrest warrant).
[xix] See the provisional concluding observations on St. Vincent and Grenadines 2008, para. 7.
[xx] See communications No. 66/1980, Mecado de Campora v. Uruguay, para. 18.1; No. 1189/2003, Fernando v. Sri Lanka, para. 9.2; No. 1629/2007, Fardon v. Australia, para. 7.3.
[xxi] See communication No. 1629/2007, Fardon v. Australia, para. 7.4 (a); and concluding observations on Belgium 2004, para. 18; as well as on United Kingdom 2002, para. 16
[xxii] An example is given in (Draft) GC 35, para. 15 and 16: “The imposition of a draconian penalty for contempt of court without adequate explanation and without independent procedural safeguards is arbitrary.” Other examples include “detention of innocent family members of alleged criminals, the holding of hostages, and arrests for the purpose of extorting bribes.” See communication No. 1629/2007, Fardon v. Australia, para. 7.4 (a) – 7.4 (c); No. 1189/2003, Fernando v. Sri Lanka, para. 9.2; and No. 1373/2005, Dissanakye v. Sri Lanka, para. 8.3. See also concluding observations on United State of America 2006, para. 19; on France 2008, para. 16; and on Germany 2012, para. 14; and General Comment 32, paras. 15, and 18.
[xxiii] See communications No. 328/1988, Fernando v. Sri Lanka, para. 9.2; No. 1314/2004, O’Neil and Quinn v. Ireland, para. 8.5 (finding no violation); and No. 1373/2005, Dissanakye v. Sri Lanka, para. 8.3. See also the following concluding observations: on Canada 2006, para. 20; on Moldova 2010, para. 8; on the Democratic Republic of the Congo, 2006, para. 23; on Sudan 2007, para. 29; on Islamic Republic of Iran 2011, para. 24; on Cameroon 2010, para. 12; Togo 2011, para. 14; on Honduras 2007, para. 13; on and Colombia 2010, para. 20
[xxiv] See communications No. 1007/2001, Sineiro Fernandez v. Spain, para. 6.3 (absence of review of conviction by higher court violated paragraph 5 of article 14, but not paragraph 1 of article 9); No. 1629/2007, Fardon v. Australia, para. 7.4 (b); No. 950/2000, Sarma v. Sri Lanka, para. 9.3; and No. 1495/2006, Madoui v. Algeria, para. 7.6
[xxv] For example, asylum-seekers “who unlawfully enter a State party’s territory may be detained for a brief initial period in order to document their entry, record their claims, and determine their identity if it is in doubt. To detain them further while their claims are being resolved would be arbitrary absent particular reasons specific to the individual, such as an individualized likelihood of absconding, danger of crimes against others, or risk of acts against national security. The decision must consider relevant factors case-by-case, and not be based on a mandatory rule for a broad category; must take into account less invasive means of achieving the same ends, such as reporting obligations, sureties, or other conditions to prevent absconding; and must be subject to periodic reevaluation and judicial review. The decision must also take into account the needs of children and the mental health condition of those detained.” GC No. 35, para. 18. See communication No. 560/1993, A. v. Australia, para. 9.3-9.4 (not per se arbitrary to detain an individual who requests asylum, but grounds must be reassessed periodically); No. 794/1998, Jalloh v. Netherlands, para. 8.2 (detention for almost four months of minor asylum-seeker pending was not arbitrary because he had previously absconded); and No. 1557/2007, Nystrom v. Australia, paras. 7.2-7.3 (nine months of detention pending deportation was not arbitrary because of risks of recidivism and flight).
[xxvi] See communications No. 1069/2002, Bakhtiyari v. Australia, para. 9.2, 9.3; No. 1551/2007, Tarlue v. Canada, para. 3.3, 7.6; No. 1051/2002, Ahani v. Canada, para. 14; No. 1014/2001, Baban v. Australia, para. 7.2; No. 1324/2004, Shafig v. Australia, para. 7.3; No. 900/1999, C. v. Australia, para. 8.2. See also concluding observations on Belgium 1999, para. 84; on Canada 2006, para. 14; on Bosnia and Herzegovina 2012, para. 14; on Finland 1998, para. 270; on Belgium 2004, para. 17; on United Kingdom 2008, para. 21; on United States of America 1995, para. 283, 298; on United Kingdom 2002, para. 16; and on Bosnia and Herzegovina 2012, para. 14.
[xxvii] See concluding observation on Estonia 2003, para. 10.
[xxviii] See communications No. 1062/2002, Fijalkowska v. Poland, para. 8.3; and No. 1629/2007, Fardon v. Australia, para. 7.3. Also see concluding observations on Canada 2006, para. 17; on Russian Federation 2010, para. 19; and on Bulgaria 2011, para. 17. More specific conditions for the depravation of liberty in the field of mental health are further established in GC No. 35, para. 19: “States parties must provide programmes for institutionalized persons that serve the purposes that are asserted to justify the detention. Depravation of liberty must be reevaluated at appropriate intervals with regard to its continuing necessity.” See concluding observations on Bulgaria 2011, para. 10; on Germany 2012, para. 14; and on Canada 2006, para. 17.
[xxix] See concluding observations on Czech Republic 2007, para. 14, on Bulgaria 2011, para. 17. Also see general comment No. 9, para. 48 and 50 of the Committee on the Rights of the Child.
[xxx] See communication No. 1062/2002, Fijalkowska v. Poland, para. 8.3-8.4; and No. 754/1997, A. v. New Zealand, para. 7.3. Also see concluding observations on Russian Federation 2010, para. 19; on Bulgaria 2011, para. 17; and General Comment No.31, para. 15
[xxxi] GC No. 35, para. 20: “If parole or conditional release is granted, and then revoked for breach of conditions, the return to prison is a deprivation of liberty subject to article 9. A prediction of the prisoner’s future behavior may be a relevant factor in deciding whether to continue detention, but State parties must exercise caution and provide appropriate procedural guarantees in evaluating future dangers.” See communications No. 1090/2002, Rameka v. New Zealand, para. 7.2-7.3; No. 1512/2006, Dean v. New Zealand, paras. 6.7 and 7.5; No. 1388/2005, De Leon Castro v. Spain, para. 9.3; No. 1385/2005, Manuel v. New Zealand, paras. 7.2-7.3 (assuming arguendo that recall from parole was a deprivation of liberty, and finding that the recall was not arbitrary); No. 1492/2006, Van der Plaat v. New Zealand, para. 6.3; No. 1629/2007, Fardon v. Australia, para. 7.4(d); and concluding observations on Germany 2012, para. 14.
[xxxii] For instance, in para. 21 of GC 35, the Committee points out that “States parties should use such post-conviction preventive detention as a measure of last resort and create detention conditions that are distinct from the treatment of convicted prisoners serving a punitive sentence and are aimed at the detainees’ rehabilitation and reintegration into society. If a prisoner has fully served the sentence imposed at the time of conviction, article 9 and 15 forbid a retroactive increase in sentence, and a State party may not impose equivalent detention under the label of civil preventive detention.” See communication No. Rameka v. New Zealand, para. 7.3; No. 1512/2006, Dean v. New Zealand, para. 7.5; and No. 1629/2007, Fardon v. Australia, para. 7.4. See also concluding observations on Germany 2012, para.14.
[xxxiii] See concluding observations on Sudan 1998, para. 124 (“national security” vague), Philippines 2004, para. 14 (vagrancy law vague), Mauritius 2005, para. 12 (terrorism law vague), Russian Federation 2010, para. 25 (“extremist activity” vague), United Republic of Tanzania 2009, para. 12 (terrorism law vague), Honduras 2007, para. 13 (“unlawful association” vague). See also communication No.702/1996, McLawrence v. Jamaica, para. 5.5 (“[T]he principle of legality is violated if an individual is arrested or detained on grounds which are not clearly established in domestic legislation”); and No. 856/1999, Chambala v. Zambia, para. 7.3
[xxxiv] In this regard, the Committee clarifies in paragraph 23 that the requirements of article 9 stipulate “compliance with domestic rules that define the procedure for arrest by identifying the officials authorized to arrest, or by specifying when arrest is required. It also requires compliance with domestic rules that define when authorization to continue detention must be obtained from a judge or other officers, where suspects may be detained, when the detained person must be brought to court, and legal limits on the duration of detention. It also requires compliance with domestic rules providing important safeguards for detained persons, such as making a record of an arrest, and permitting access to counsel.” See communication No. 1425/2005, Marz v. Russian Federation, para. 5.3; No. 461/2006 et al., Maksudov et al. v. Kyrgyzstan, para. 12.2; 1110/2002, Ronaldo v. The Philippines, para. 5.5; 770/1997, Gridin v. Russian Federation, para. 8.1; No. 1449/2006, Umarov v. Uzbekistan, para. 8.4; No. 981/2001. Gomez Casafranca v. Peru, para. 7.2; No. 2024/2011, Israil v. Kazakhstan, para. 9.2; No. 1208/2003, Kurbonov v. Tajikistan, para. 6.5; No. 1412/2005, Butovenko v. Ukraine, para. 7.6
[xxxv] See communications No. 1460/2006, Yklymova v. Turkmenistan, para. 7.2 (de facto house arrest); No. 414/1990, Mika Miha v. Equatorial Guinea, para. 6.5 (presidential fiat); and No. 188/1984, Martinez Portorreal v. Dominican Republic, paras. 9.2, 11. See also concluding observations on Canada 2006, para. 14 (detention under security certificates).
[xxxvi] For instance, the Committee indicates in para. 25 of this GC, that such reasons “must include not only the general legal basis of the arrest, but enough factual specifics to indicate the substance of the complaint, such as the wrongful act and the identity of an alleged victim.” See communications No. 43/1979, Drescher Caldas v. Uruguay, para. 13.2; No. 248/1987, Campbell v. Jamaica, para. 6.3; No. 1177/2003, Wenga and Shandwe v. Democratic Republic of the Congo, para. 6.2; No. 1128/2002, Marques de Morais v. Angola, para. 6.2; and No. 1812/2008, Levinov v. Belarus, para. 7.5
[xxxvii] In para. 26 of this GC, the Committee states that “Sometimes explicit notification maybe superfluous when the reasons are evident from the circumstances of the arrest, because the arresting officer has found an illegal substance in the individual’s possession, or because the individual has brought the crime to the attention of the police; even then, the better practice would be to avoid the risk of misunderstanding by making the reasons explicit, although failure to inform would not violate paragraph 2 if the individual does know the reasons.” See communications No. 868/1999, Wilson v. The Philippines, paras. 3.3, 7.5; No. 493/1992, Griffin v. Spain, para. 9.2; No. 647/1995, Pennant v. Jamaica, para. 8.1; No. 373/1989, Stephens v. Jamaica, paras. 2.2, 9.5; and No. 597/1994, Grant v. Jamaica, para. 8 (a State party “is not absolved from its obligation under article 9, paragraph 2, to inform a person of the reasons for his arrest and the charges against him, because of the arresting officer’s opinion that the arrested person is aware of them”).
[xxxviii] See communication No. 1402/2005, Krasnova v. Kyrgyzstan, para. 8.5; General Comment No.32, para. 42; and General Comment No. 10, para. 48 of the Committee on the Rights of the Child
[xxxix] See communication No. 526/1993, Hill & Hill v. Spain, para. 12.2; No. 852/1999, Borisenko v. Hungary, para. 4.2, 7.3; and No. 868/1999, Wilson v. The Philippines, paras. 3.3, 7.5; and No. 493/1992, Griffin v. Spain, para. 9.2
[xl] See communication No. 248/1987, Campbell v. Jamaica, para. 6.3; No. R.8/33, Buffo Carballal v. Uruguay, para. 13; No. 1782/2008, Aboufaied v. Libya, para. 7.6; and No. 1649/2007, El Abani v. Algeria, paras. 7.6 and 7.8. See also footnote No. 102, GC No.35: “The requirement of being informed about any charges applies to detention for possible military prosecution, regardless of whether the trial of the detainee by a military court would be prohibited by article 14 of the Covenant.”
[xli] See general comment No. 32, para. 31; and communication No. 253/1987, Kelly v. Jamaica, para. 5.8
[xlii] See communications No. 248/1987, Campbell v. Jamaica, para. 6.3; No. 1096/2002, Kurbanov v. Tajikistan, para. 7.3; and No. 702/1996, McLawrence v. Jamaica, para. 5.9
[xliii] General comment No. 35, para. 38. See also footnote No. 131 of this GC: “During periods when the accused has been released pending trial, or when the individual is detained after conviction at first instance, paragraph 3(c) of article 14 applies.”
[xliv] In para. 38 of this GC, the Committee underlines that “The reasonableness of any delay in bringing the case to trial has to be assessed in the circumstances of each case, taking into account the complexity of the case, the conduct of the accused during the proceedings and the manner in which the matter was dealt with by the executive and judicial authorities.” See communications No. 788/1997, Cagas v. Philippines, para. 7.3; No. 1085/2002, Taright v. Algeria, paras. 8.2-8.4; No. 818/1998, Sextus v. Trinidad, para. 7.2; No. 386/1989, Kone v. Senegal, para. 8.6; No. 777/1996, Teesdale v. Trinidad and Tobago, para. 9.3 (unexplained delay of seventeen months from arrest to conviction violated article 9, paragraph 3 in the circumstances of the case); No. 614/1995, Thomas v. Jamaica, para. 9.6 (delay of nearly fourteen months from arrest to conviction did not violate article 9, paragraph 3 in the overall circumstance of the case). See also footnote No. 134, GC No. 35; and paras 32 and 35 of general comment No. 35.
[xlv] See communications No. 721/1997, Boodoo v. Trinidad and Tobago, para. 6.2; No. 336/1988, Fillastre v. Bolivia, para. 6.5; and No. 818/1998, Sextus v. Trinidad and Tobago, para. 4.2, 7.2.
[xlvi] See communication No. 1085/2002, Taright v. Algeria, para. 8.3; No. 721/1997, Boodoo v. Trinidad and Tobago, para. 6.2. Also see GC No. 21, para. 13 and GC No. 32, para. 42; as well as GC No. 10, para. 83 of the Committee on the Rights of the Child.
[xlvii] In the words of the Committee, this right “is intended to bring the detention of a person in a criminal investigation or prosecution under judicial control” (GC No. 35, para. 33). See communications No. 1128/2002, Marques de Morais v. Angola, paras. 6.3-6.4; No. 1096/2002, Kurbanova v. Tajikistan, para. 7.2; No. 521/1992, Kulomin v. Hungary, para. 11.3; and No. 1914/2009, Musaev v. Uzbekistan, para. 9.3
[xlviii] See communication No. 712/1996, Smirnova v. Russian Federation, para. 10.3; and No. 1887/2009, Peirano Basso v. Uruguay, para. 9.5 (no violation of article 14, paragraph 3 (a), where the defendant has been informed of the charges during the preceding extradition process).
[xlix] See communications No. 253/1987, Kelly v. Jamaica, para. 5.6; No. 1177/2003, Wenga and Shadwe v. Democratic Republic of the Congo, para. 6.3; and No. 1782/2008, Aboufaied v. Libya, para. 7.6. See also footnote No. 109 in GC No. 35: “Paragraph 3 applies to detention for possible military prosecution, regardless of whether the trial of the detainee by a military court would be prohibited by article 14 of the Covenant.”
[l] See communication No. 1186/2003, Titiahonjo v. Cameroon, paras. 6.5-6.6
[li] See communication No. 959/2000, Bazarov v. Uzbekistan, para. 8.2; No. 521/1992, Kulomin v. Hungary, para. 11.3; No. 1547/2007, Torobekov v. Kyrgyzstan, para. 6.2; No. 1278/2004, Reshetnikov v. Russian Federation, para. 8.2; and concluding observations on Tajikistan 2005, para. 12.
[lii] See communication No. 1128/2002, Marques de Morais v. Angola, para. 6.3; No. 277/1988, Teran Jijon v. Ecuador (five days not prompt); No. 702/1996, McLawrence v. Jamaica, para. 5.6 (one week not prompt); No. 625/1995, Freemantle v. Jamaica (four days not prompt); No. 1096/2002, Kurbanova v. Tajikistan, para. 7.2 (seven days not prompt); No. 852/1999, Borisenko v.. Hungary, para. 7.4; No. 911/2000, Nazarov v. Uzbekistan, para. 6.2; No. 1812/2008, Levinov v. Belarus, para. 7.5; No. 583/1994, van der Houwen v. Netherlands, (73 hours was prompt); No. 852/1999, Borisenko v. Hungary, para. 7.4; No. 625/1995, Freemantle v. Jamaica, para. 7.4; No. 649/1995, Forbes v. Jamaica, para. 7.2 (transfere from one police lock-up to another did not justify fourteen day delay); and No. 336/1988, Fillastre v. Bolivia, para. 6.4 (budgetary constraints did not justify ten day delay). See also concluding observations Zimbabwe 1998, para. 219; Gabon 2001, para. 13; Netherlands 2001, para. 13; Ukraine 2007, para. 17; Ethiopia 2011, para. 20; and footnotes no. 117, 118 in GC No. 35.
[liii] The Committee acknowledges that in most States parties, laws are in place to “fix precise time limits, sometimes shorter than forty-eight hours, and those should not be exceeded. An especially strict standard of promptness, such as 24 hours, should apply in the case of juveniles. States parties should include in their reports information concerning the time limits provided in their laws, and concerning how often they are exceeded in practice” (GC No. 35, para. 34). See concluding observations on Zimbabwe 1998, para. 219, Uzbekistan 2001, para. 11; Hungary 2002, para. 8; Kenya 2012, para. 18; Cameroon, 2010, para. 20; and United Republic of Tanzania 2009, para. 21. See also General Comment No. 10, para. 83 of the Committee on the Right of the Child.
[liv] Among others, this obligation “gives the opportunity for inquiry into the treatment that they received in custody, and facilitates immediate transfer to a remand detention center if continued detention is ordered” (GC No.35, para. 35). See communications No. 298/1988, Wolf v. Panama, para. 6.2; No. 253/1987, Kelly v. Jamaica (individual opinion); and No. 613/1995, Leehong v. Jamaica, para. 9.5. See also concluding observations on Ethiopia 2011, para. 20, Maldives 2012, para. 18; Azerbaijan 2009, para. 8; and Korea 2007, para. 16. See in particular Body of principles for the Protection of All Persons under any Form of Detention or Imprisonment, principle 37, approved by UN GA Res. 43/1973.
[lv] See communications No. 1297/2004, Medjnoune v. Algeria, para. 8.7; No. 1781/2008, Berzig [Djebrouni] v. Algeria, paras. 8.4, 8.5, 8.8; and No. 176/1984, Lafuente Penarrieta v. Bolivia, para. 16.
[lvi] See concluding observations Algeria 1998, para. 369; Kuwait 2000, para. 472; and Togo 2011, para. 19.
[lvii] GC No. 35, para. 37. See also the second sentence of paragraph 3 on what should happen if further detention is not needed but further proceedings are pending. Refer to concluding observations on Tajikistan 2005, para. 12; Maldives 2012, para. 18; and communication No. 647/1995, Pennant v. Jamaica, para. 8.2; No. 1128/2002, Marques de Morais v. Angola, para. 6.3
[lviii] See concluding observations on Uzbekistan 2001, para.11; Hungary 2002, para. 8; Lithuania 2004, para. 13; and Brazil 2006, para. 16.
[lix] Communication No. 1128/2002, Marques de Morais v. Angola, paras. 6.1, 6.4
[lx] “The relevant factors should be specified in law, and should not include vague and expansive standards such as public security.” GC No. 35, par. 39. See communications No. 1502/2006, Marinich v. Belarus, para. 10.4; No. 1940/2010, Eligio Cedeno v. Venezuela, para. 7.9; No. 1547/2007, Torobekov v. Kyrgyzstan, para. 6.3; and No. 1887/2009, Peirano Basso v. Uruguay, para. 10.2. Also see concluding observations Republic of Korea 2000, para. 141; Senegal 1998, para. 63; Armenia 1999, para. 107; Kyrgyzstan 2000, para. 393; and Bosnia and Herzegovina, 2007, para. 18.
[lxi] See general comment No. 32, para. 42; Concluding observations France 1997, para. 404; Latvia 2004, para. 10; Norway 2011, para. 12; also see GC No. 10, para. 80 of the Committee on the Right of the Child.
[lxii] See communications No. 1178/2003, Smantser v. Belarus, para. 10.3; No. 526/1993, Hill & Hill v. Spain, para. 12.3; and concluding observations on Bosnia and Herzegovina, 2007, para. 18; Bolivia, 1997, para. 208; Argentina 2001, para. 10; Argentina, 2010, para. 16; and Sri Lanka 2004, para. 13. See also GC No. 35, para. 39: “Courts must examine whether alternatives to pretrial detention, such as bail, electronic bracelets, or other conditions, would render detention unnecessary in the particular case. If the defendant is a foreigner, that fact must not be treated as sufficient to establish that the defendant may flee the jurisdiction.”
[lxiii] See communication No. 526/1993, Taright v. Algeria, paras. 8.3-8.4; and Concluding observations Moldova 2002, para. 11; and Argentina, 1995, para. 157. See also the Revised Reporting Guidelines CCPR/C/2009/1, para. 59. For instance, in GC No. 35, para. 40, the Committee mentions that “States parties are requested to include in their reports statistics relevant to paragraph 3, including the average and maximum length of detention for persons detained pending trial on criminal charges, and the number of persons held in remand and their percentage in relation to the entire prison population.”
[lxiv] See communication No. 1342/2005, Gavrilin v. Belarus, para. 7.4
[lxv] See communication No. 1051/2002, Ahani v. Canada, para. 10.2; No.754/1997, A. v. New Zealand, para. 7.3; No. 1460/2006, Yklymova v. Turkmenistan, para. 7.2-7.4 (house arrest); No. 1172/2003, Madani v. Algeria, para. 8.5 (house arrest); No. 265/1987, and Vuolanne v. Finland, para. 9.5 (solitary confinement). See also concluding observations on United Kingdom 2008, para. 17 (control orders including curfews of up to 16 hours).
[lxvi] See communications No. 248/1987, Campbell v. Jamaica, para. 6.4 (criminal proceeding); No. 962/2001, Mulezi v. Democratic Republic of the Congo, para. 5.2 (military detention); No. 1051/2002, Ahani v. Canada, para. 10.2 (counter-terrorism); No. 1062/2002, Fijalkowska v. Poland, para. 8.4 (involuntary committal to psychiatric institution); No. 560/1993, A v. Australia, para. 9.5 (immigration detention); No. 291/1988, Torres v. Finland, para. 7.4 (extradition); No. 414/1990, Mika Miha v. Equatorial Guinea, para. 6.5 (presidential fiat); No. 265/1987, and Vuolanne v. Finland, para. 9.5. See also concluding observations India 1997, para. 438, Israel 1998, para. 317 (security detention), United Kingdom 2008, para. 17 (counter-terrorism); Rawanda 2009, para. 16 (recommending abolition of detention for vagrancy); Cameroon 1994, para. 204; Moldova 2002 para. 11; and Lithuania 2004, para. 13.
[lxviii] GC No. 35, footnote No. 157; GC No. 32, para. 45. See communication No. 954/2000, Minogue v. Australia, para. 6.4; and No. 1342/2005, Gavrilin v. Belarus, para. 7.4.
[lxviii] GC No. 35, para. 44: “Unlawful detention includes detention that was lawful at its inception but has become unlawful, because the individual has completed serving a sentence of imprisonment, or because the circumstances that justify the detention have changed.” It also includes “both detention that violates domestic law and detention that is incompatible with the requirement of article 9, paragraph 1, or with any other relevant provision of the Covenant” (GC No.35, para.45). See communication No. 1090/2002, Rameka v. New Zealand, paras. 7.3-7.4; No. 1255/2004 et al., Shams et al v. Australia, para. 7.3; No. 1460/2006, Yklymova v. Turkmenistan, para. 7.4; and No. 1751/2008, Aboussedra v. Libyan Arab Jamahiriya, para. 7.6
[lxix] See for example communication No. 473/1991, Barroso v. Panama, paras. 2.4, 8.2 (habeas corpus for bail from pretrial detention).
[lxx] See communications No. 1090/2002, Rameka v. New Zealand, para. 7.3; 754/1997, A. v. New Zealand, para. 7.3; No. 291/1988, Torres v. Finland, para. 7.2, 7.4; and Concluding observations on Sri Lanka 1995.
[lxxi] See communication No. 1255/2004 et al., Shams et al. v. Australia, para. 7.3; and No. 1069/2002, Bakhtiyari v. Australia, para. 9.5. Also see General Comment No. 31, paras. 13, 15.
[lxxii] See communication No.1090/2002, Rameka v. New Zealand, para. 7.4; No. 291/1988, Torres v. Finland, para. 7.2; and No. 265/1987, Vuolanne v. Finland, para. 9.6
[lxxiii] GC No. 35, para. 47. See communication No. 373/1989, Stephens v. Jamaica, para. 9.7
[lxxiv] See communications R.1/4, Torres Ramirez v. Uruguay, para. 18; No. 1449/2006, Umarov v. Uzbekistan, para. 8.6; R.1/5, Hernandez v. Valentini de Bazzano v. Uruguay, para. 10; No. 1751/2008, Aboussedra v. Libyan Arab Jamahiriya, para. 7.6; and No. 1062/2002, Fijalkowska v. Poland, para. 8.4. In particularly for cases regarding immigration controls and i.e. expelling an alien “while obstructing access to judicial review of the expulsion order,” (GC No. 35, para. 47), see communication No. 155/1983, Hammel v. Madagascar, para. 19.4.
[lxxv] See concluding observations on Ireland 2008, para. 19, and Bosnia and Herzegovina 2012, para. 14.
[lxxvi] GC No. 35, para. 48: “The question of whether a decision has been reached without delay must be assessed on a case-by-case basis. Delays attributable to the petitioner do not count as judicial delay.” See communication No. 712/1996, Smirnova v. Russia, para. 10.1; No. 1128/2002, Marques de Morais v. Angola, para. 6.5; No. 291/1988, Torres v. Finland, para. 7.3; and No. 1051/2002, Ahani v. Canada, para. 10.3
[lxxvii] See communication No. 1752/2008, J.S. v. New Zealand, paras. 6.3-6.4
[lxxviii] See communication No. 291/1988, Torres v. Finland, para. 7.3; No. 1051/2002, Ahani v. Canada, para. 10.3; and in particular communication No. 1178/2003, Smantser v. Belarus, para. 9.5, 10.2: “The Committee did not find a violation of paragraph 3, because the pretrial detention had not been brought promptly under the control of a court” (GC No. 35, footnote No. 179). In other cases, such as “Where review of the security-related detention of an asylum-seeker extended over nine and a half months, the Committee concluded that an interim decision on his detention should have been taken earlier. The Committee has [also] recommended that detention on mental health grounds be judicially reviewed within a few days” (GC No. 35, para. 48). See also concluding observations Ireland 2000, para. 450; Estonia 2003, para. 10; and Kyrgyzstan 2000, para. 396.
[lxxix] See Revised Reporting Guidelines CCPR/C/2009/1, paras. 61-62
[lxxx] See General Comment No. 31, paras. 16, 18; Communication No. 238/1987, Bolanos v. Ecuador; and No. 962/2001, Mulezi v. Democratic Republic of Congo, para. 7
[lxxxi] See concluding observations on Guyana 2000, para. 367-368; United States of America 1995, para. 299; and General Comment No. 32, para. 52.
[lxxxii] See concluding observations Guyana 2000, para. 367; Cameroon 2010, para. 19; Argentina 1995, para. 153; and communication No. 1432/2005, Gunaratna v. Sri Lanka, para. 7.4
[lxxxiii] See para. 53, GC No. 35: within the meaning of paragraph 5, unlawful arrest and detention “include those arising within either criminal or noncriminal proceedings, or in the absence of any proceedings at all. The ‘unlawful’ character of the arrest or detention may result from violation of domestic law or violation of the Covenant itself, such as substantively arbitrary detention and detention that violates procedural requirements of other paragraphs of article 9. However, the fact that a criminal defendant was ultimately acquitted, at first instance or on appeal, does not in and of itself render any proceeding detention ‘unlawful.” See communication No. 754/1997, A v. New Zealand, paras. 6.7, 7.4; No. 188/1984, Martinez Portorreal v. Dominican Republic, para. 11; No. 328/1988, Zelaya Blanco v. Nicaragua, para. 12; No. 962/2001, Mulezi v. Democratic Republic of the Congo, para. 5.2; No. 1128/2002, Marques de Morais v. Angola, para. 6.6; No. 328/1988, Zelaya Blanco v. Nicaragua, para. 10.3; No. 728/1996, Sahadeo v. Guyana, para. 11; R.2/9, Santullo Valcada v. Uruguay, para. 13; No. 432/1990, W.B.E v. Netherlands, para. 6.5; and No. 963/2001, Uebergang v. Austria, para. 4.4
[lxxxiv] See concluding observations on Camerron 2010, para. 19, and on United States of America 1995, para. 299; General comment No. 32, para. 52 and the following communications: No. 414.1990, Mika Miha v. Equatorial Guinea, para. 6.5; No. 962/2001, Mulezi v. Democratic Republic of the Congo, para. 5.2; and No. 1134/2002, Gorji-Dinka v. Cameroon, para. 4.6
[lxxxv] See communication No. 1157/2003, Coleman v. Australia, para. 9; and No. 1128/2002, Marques de Morais v. Angola, para. 8. Also see General Comment No. 31, para. 16.
[lxxxvi] See Revised Reporting Guidelines CCPR/C/2009/1, para. 61.
[lxxxvii] See General Comment No. 33, para.4. See also communication No. 241/1987 and 242/1987, Birindwa ci Birhashwirwa and Tshisekedi wa Mulumba v. Zaire, para. 12.5l and concluding observations Maldives 2012, para. 26.
[lxxxviii] See general comment No. 31, para. 11; general comment No. 29, para. 3; Concluding observations on India 1997, paras. 433, 438-439; Israel 1998, para. 317; Sri Lanka 2004, para. 10, 13; Uganda 2004, para. 12; United States of America 2006, paras. 12, 18; and Yemen 2012, paras. 16, 24.
[lxxxix] See concluding observations on Bosnia and Herzegovina 1993, para. 332, Russian Federation 1995, para. 390; India 1997, para. 439; Algeria 1998, para. 435; and United States of America 2006, para. 12
[xc] See general comment No. 29, paras. 4-5, 8, 9, and 13 (b); see also concluding observations on Syrian Arab Republic 2005, para. 6; and on Israel 2003, para. 12
[xci] See general comment No. 29, para. 11
[xcii] See general comment No. 32, para. 6.
[xciii] See general comment No. 29, para. 16; Concluding observations on Israel 1998, para. 317; and Albania 2005, para. 9.
[xciv] General comment No. 24