UN Treaty Bodies:

Individual Complaints

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

Individual Complaints

 Treaty bodies that receive individual complaints:  HRC (OP-ICCPR)  CAT (art 22)  CERD (art 14)  CEDAW (OP-CEDAW)  [CMW – Art 77]  [OP-ICESCR]

Process – Admissibility

   Complaint  assessment OHCHR (Petitions Unit) for initial Provide a summary to the relevant Committee’s ‘Special Rapporteur on New Communications’ Decision by Special Rapporteur whether to register complaint 99% of complaints are inadmissible  Majority are prepared without legal assistance

Admissibility

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

Process – Complaint

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

Follow up on Views

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

Interim Measures

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

Case Studies:

Complaints to the Human Rights Committee –

Nystrom v Australia & Taha v Australia

Background – Nystrom

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

Background – Nystrom (cont)

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

       

Background – Nystrom (cont)

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

Admissibility – General

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

Alleged Violations – Nystrom

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

Request for Interim Measures

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

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

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

Article 14(7) – ‘Double punishment’

    Article 14(7): No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Nystrom was tried, convicted, and imprisoned for his crimes in accordance with Australian criminal law Cancellation of Nystrom’s visa and his consequential detention and deportation to Sweden each constitutes a second instance of punishment Unreasonable discrimination on the basis of nationality (articles 2(1) and 26)

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

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

Article 9 – Arbitrary arrest or detention

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

Findings and Remedies – Nystrom

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Findings

 Communication requested the Committee to act under Article 5(4) of the Optional Protocol to make a finding that the State party has violated each of Articles 7, 9, 12(4), 14(7), 17, 23(1) and 26 of the Covenant

Remedies

 Article 2(3)(a) of the Covenant – requirement to provide an effective remedy in relation to the violations  Communication requested the following remedies:  Reinstatement of Nystrom’s permanent residency status; and  Compensation, assessed according to the standards applicable under Australian domestic law.

Background – Taha

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

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

Background – Taha (cont)

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

Background – Taha (cont)

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

Alleged Violations – Taha

 Article 7 – torture, cruel inhuman or degrading treatment (

non refoulement

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

Use and value of communication – Taha

 Not a judicial process as such – not an appeal    No binding ruling on State party will follow Long time period – 4+ years What is the benefit?

    Can it provide urgent assistance?

Does it put pressure on States to comply?

Is it worth doing “for the record”?

What other benefits are there?

Use and value of communication – Taha (cont)

   Urgency   Interim measures are hard to get But might be useful for Federal Court proceedings – injunction  evidence of alleged violations  provided basis for establishing urgency Pressure on States – together with reports, etc For the record?

 May be a useful record of changes in Australian law  Also provides a list of examples for domestic advocacy purposes

Use and value of communication – Taha (cont)

 Engagement of other UN agencies – HCR  provided formal and substantive basis for HCR involvement – crucial re deportation and return  led eventually to TPV and PPV  External advocacy of case / media?

 query whether publicity is always beneficial  what tone / profile will media coverage give, and will it help?

 confidentiality and secrecy

Advantages and disadvantages

   Committee’s View is only a recommendation Attitude of the Australian Government?

Lengthy procedure – can take 2-4 years for a decision

Some practical considerations

   Consider which treaty body to engage…  Different/variable strengths of Committees Consider whether Special Procedures may be more useful?

      Examples: Toonen v Australia Young v Australia A v Australia (see also Baban, Bhaktiaryi, D&E, Shafiq) Winata v Australia C v Australia Brough v Australia

Further Information

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

Taha v Australia

: submitted by PILCH  HRLRC Manual  Chapter 6 > Individual Complaint Mechanisms www.hrlrc.org.au