Rights Holders

Non-Nationals

1. Gueye v. France, CCPR/C/35/D/196/1985

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights:

Meeting on 3 April 1989,

Having concluded its consideration of communication No. 196/1985, submitted to the Committee by Ibrahima Gueye
and 742 other retired Senegalese members of the French Army under the Optional Protocol to the International
Covenant on Civil and Political Rights,

Having taken into account all written information, made available to it by the author of the communication and by the
State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.1 The authors of the communication (initial letter of -12 October 1985 and subsequent letters of 22 December 1986,
6 June 1987 and 21 July 1988) are Ibrahima Gueye and 742 other retired Senegalese members of the French Army,
residing in Senegal. They are represented by counsel.

1.2 The authors claim to be victims of a violation of article 26 of the Covenant ..: by France because of alleged racial
discrimination in French legislation which provides for different treatment in the determination of pensions of retired i
soldiers of Senegalese nationality who served in the French Army prior to the independence of Senegal in 1960 and
who receive pensions that are inferior to those enjoyed by retired French soldiers of French nationality.

1.3 It is stated that pursuant to Law No. 51-561 of 18 May 1951 and Decree No. 51-590 of 23 May 1951, retired
members of the French Army, whether French or Senegalese, were treated equally. The acquired rights of
Senegalese retired soldiers were respected after independence in 1960 until the Finance Act No. 74.1129 of
December 1974 provided for different treatment of the Senegalese. Article 63 of this Law stipulates that the pensions
of Senegalese oldiers would no 1 longer be subject to the general provisions of The Code of Military Pensions of
1951. Subsequent French legislation froze the level of pensions for the Senegalese as of 1 January 1975.

1.4 The authors state that the laws in question have been challenged before the Administrative Tribunal of Poitiers,
France, which rendered a decision on 22 December 1980 in favour of Dia Abdourahmane, a retired Senegalese
soldier, ordering the case to be sent to the French Minister of Finance for purposes of full indemnification since 2
January 1975. The authors enclose a similar decision of the Conseil d'Etat of 22 June 1982 in the case of another
Senegalese soldier. However, these decisions, it is alleged, were not implemented, in view of a new French Finance
Law No. 81.1179 of 31 December 1981, applied with retroactive effect to 1 January 1975, which is said to frustrate
any further recourse before the French judicial or administrative tribunals.

1.5 As to the merits of the case, the authors reject the arguments of the French authorities that allegedly justify the
different treatment of retired African (not only Senegalese) soldiers on the grounds of: (a) their loss of French
nationality upon independence; (b)the diff iculties for French authorities to establish the identity and the family
situation of retired soldiers in African countries; and (c)the differences in the economic, financial and social conditions
prevailing in France and in its former colonies.

1.6 The authors state that they have not submitted the same matter to any other procedure of international
investigation or settlement.

2. By its decision of 26 March 1986, the Human Rights Committee. transmitted the communication under rule 91 of
the Committee's provisional rules of procedure to the State party requesting information and observations relevant to
the question of the admissibility of the communication.
3.1 In its initial submission under rule 91, dated 5 November 1986, the State party describes the factual situation in
detail and argues that the communication is "inadmissable as being incompatible with the provisions of the Covenant
(art. 3 of the Optional Protocol), additionally, unfounded", because it basically deals with rights that fall outside the
scope of the Covenant (i. e. pension rights) and,

at any rate, because the contested legislation does not contain any discriminatory provisions within the meaning of
article 26 of the Covenant.

3.2 In a further submission under rule 91, dated 8 April 1987, the State party invokes the declaration made by the
French Government upon ratification of the Optional Protocol on 17 February 1984 and contends that the
communication is inadmissible ratione temporis: "France interprets article 1 [of the Optional Protocol] as giving the
Committee the competence to receive communications alleging a violation of a right set forth in the Covenant which
results either from acts, omissions, developments or events occurring after the date on which the Protocol entered
into force for the Republic, or from a decision relating to acts, omissions, developments or events after that date. It is
clear from this interpretative declaration that communications directed against France are admissible only if they are
based on alleged violations which derive from acts or events occurring after 17 May 1984, the date on which the
Protocol entered into force with respect to France under article 9, paragraph 2, of the said Protocol. However, the
statement of the facts contained both in the communication itself and in the initial observations by the French
Government indicates that the violation alleged by the authors of the communication derives from Law No. 79.1102 of
21 December 1979, which extended to the nationals of four States formerly belonging to the French Union, including
Senegal, the régime referred to as 'crystallization' of military pensions that had already applied since 1 January 1961
to the nationals of the other States concerned. Since this act occurred before ratification by France of the Optional
Protocol, it cannot therefore provide grounds for a communication based on its alleged incompatibility with the
Covenant unless such communication ignores the effect ratione temporis which France conferred on its recognition of
the right of individual communication."

4.1 In their comments of 22 December 1986, the authors argue that the communication should not be declared
inadmissible pursuant to article 3 of the Optional Protocol as incompatible with the provisions of the Covenant, since
a broad interpretation of article 26 of the Covenant would permit the Committee to review questions of pension rights
if there is discrimination, as claimed in this case.

4.2 In their further comments of 6 June 1987, the authors mention that although the relevant French legislation pre-
dates the entry into force of the Optional Protocol for France, the authors had continued negotiations subsequent to
17 May 1984 and that the final word was spoken by the Minister for Economics, Finance and Budget in a letter
addressed to the authors on 12 November 1984.

5.1 Before considering any claims contained in a communication, the Human Rights *Committee must, in accordance
with rule 87 of its provisional rules of procedure, decide whether or not it is admissible under the Optional Protocol to
the Covenant.

5.2 With regard to the State party's contention that the communication was inadmissible under article 3 of the
Optional Protocol as incompatible with the Covenant, the Committee recalled that it had already decided with respect
to prior communications (Nos. 172/1984, 180/1984, 182/1984) that the scope of article 26 of the Covenant permitted
the examination of allegations of discrimination even with respect to pension rights.

5.3 The Committee took note of the State party's argument that, as the alleged violations derived from a law enacted
in 1979, the communication should be declared inadmissible on the grounds that the interpretative declaration made
by France upon ratification of the Optional Protocol precluded the Committee from considering alleged violations that
derived from acts or events occurring prior to 17 May 1984, the date on which the Optional Protocol entered into force
with respect to France. The Committee observed in this connection that in a number of earlier. cases (Nos. 6/1977,
24/1977), it had declared that it could not consider an alleged violation of human rights said to have taken place prior
to the entry into force of the Covenant for a State party, unless it is a violation that continues after that date or has
effects which themselves constitute a violation of the Covenant after that date. The interpretative declaration of
France further purported to limit the Committee's competence ratione temporis to violations of a right set forth. in the
Covenant, which result from "acts, omissions, developments or events occurring after the date on which the Protocol
entered into force" with. respect to France. The Committee took the view that it had no competence to examine the
question whether the authors were victims of discrimination at any time prior to 17 May 1984: however, it remained to
be determined whether there had been violations of the Covenant subsequent to the said date, as a consequence of
acts or omissions related to the continued application of laws and decisions concerning the rights of the applicants.

6. On 5 November 1987, the Human Rights Committee therefore decided that the communication was admissible.

7.1 In its submission under article 4, paragraph 2, of the Optional Protocol, dated 4 June 1988, the State party recalls
its submission under rule 91: a./it adds that Senegalese nationals who acquired French nationality and kept it
following Senegal's independence are entitled to the same pension scheme as all other French former members of
the armed forces. Articles 97, paragraph 2, to 97, paragraph 6, of the Nationality Code offer any foreigner who at one
point in time possessed French nationality the possibility of recovering it. The State party argues that this possibility is
not merely theoretical, since, in the past, approximately 2,000 individuals have recovered French nationality each
year.

7.2 The State party further explains that a Senegalese former member of the armed forces who lost his French
nationality following Senegal's independence and then recovered his French nationality would ipso facto recover the
rights to which French nationals are entitled under the Pension Code, article L 58 of which provides that "the right to
obtain and enjoy the pension and life disability annuity is suspended: (... )by circumstances which cause a person to
lose the status of French national for as long as that loss of nationality shall last". This implies that once nationality is
recovered, the right to a pension is re-established. The State party concludes that nationality remains the sole
criterion on which the difference in treatment referred to by the authors is based.

8.1 In their comments on the State party's submission, the authors, in a letter dated 21 July 1988, submit that the
State party has exceeded the deadline for submission of its submission under article 4, paragraph 2, of the Optional
Protocol by 12 days, and that for this reason it should be ruled inadmissible. In this connection, they suspect that
"(b)by stalling and making full use, even beyond the deadlines set under the Committee's rules of procedure, of
procedural tactics so as to delay a final decision, the State party hopes that the authors will die off one y one and that
the amounts it will have to pay will drop considerably". Alternatively, the authors argue that the Committee should not
further examine the State party's observations as they repeat arguments discussed at length in earlier submissions
and thus should be considered to be of a dilatory nature.

8.2 With respect to the merits of their case, the authors maintain that the State party's argument concerning the
question of nationality is a fallacious one. They submit that the State party is only using the nationality argument as a
pretext, so as to deprive the Senegalese of their acquired rights. They further refer to article 71 of the 1951 Code of
Military Pensions, which stipulates: "Serving or former military personnel of foreign nationality possess the same
rights as serving or former military personnel of French nationality, except in the case where they have taken part in a
hostile act against France." In their view, they enjoy "inalienable and irreducible pension rights" under this legislation.
Since none of them has ever been accused of having participated in a hostile act against France, they submit that the
issue of nationality must be "completely and definitely" ruled out.

8.3 The authors argue that they have been the victims of racial discrimination based on the colour of their skin, on the
purported grounds that:

(a) In Senegal, registry office records are not well kept and fraud is rife:

(b) As those to whom pensions are owed, i. e. the authors, are blacks who live .n an underdeveloped country, they do
not need as much money as pensioners who live .n a developed country such as France.

The authors express consternation at the fact that the State party is capable of arguing that, since the creditor is not
rich and lives in a poor Country, the debtor may reduce his debt in proportion to the degree of need and poverty of his
creditor, an argument they consider to be contrary not only to fundamental principles of law but also to moral
standards and to equity.

9.1 The Human Rights Committee, having considered the present communication in the light of all the information
made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol, bases its views on
the following facts, which appear uncontested.
9. 2 The authors are retired soldiers of Senegalese nationality who served in the French Army prior to the
independence of Senegal in 1960. Pursuant to the Code of Military Pensions of 1951, retired members of the French
Army, whether French or Senegalese, were treated equally. Pension rights of Senegalese soldiers were the same as
those of French soldiers until a new law, enacted in December 1974, provided for different treatment of the
Senegalese. Law No. 79/1102 of 21 December 1979 further extended to the nationals of four States formerly
belonging to the French Union, including Senegal, the régime referred to as "crystallization" of military pensions that
had already applied since 1 January 1961 to the nationals of other States concerned. Other retired Finance Law No.
81.1179 of 31 December 1981, applied with retroactive effect to 1 January 1975, has rendered further recourse
before French tribunals futile. .

9.3 The main question before the Committee is whether the authors are victims of discrimination within the meaning
of article 26 of the Covenant or whether the differences in pension treatment of former members of the French Army,
based on whether they are French nationals or not, should be deemed compatible with the Covenant. In determining
this question, the Committee has taken into account the following considerations.

9.4 The Committee has noted the authors claim that they have been discriminated against on racial grounds, that is,
one of the grounds specifically enumerated in article 26. It finds that there is no evidence to support the allegation
that the State party has engaged in racially discriminatory practices vis-à-vis the authors. It remains, however, to be
determined whether the situation encountered by the authors falls within the purview of article 26. The Committee
recalls that the authors are not generally subject to French jurisdiction, except that they rely on French legislation in
relation to the amount of their pension rights. It notes that nationality as such does not figure among the prohibited
grounds of discrimination listed in article 26, and that the Covenant does not protect the right to a pension, as such.
Under article 26, discrimination in the equal protection of the law is prohibited on any grounds such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or other status. There has
been a differentiation by reference to nationality acquired upon independence. In the Committee's opinion, this falls
within the reference to "other status" in the second sentence of article 26. The Committee takes into account, as it did
in communication No. 182/1984, that "the right to equality before the law and to equal protection of the law without
any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable
and objective criteria does not amount to prohibited discrimination within the meaning of article 26".

9.5 In determining whether the treatment of the authors is based on reasonable and objective criteria, the Committee
notes that it was not the question of nationality which determined the granting of pensions to the authors but the
services rendered by them in the past. They had served in the French Armed Forces under the same conditions as
French citizens; for 14 years subsequent to the independence of Senegal they were treated in the same way as their
French counterparts for the purpose of pension rights, although their nationality was not French but Senegalese. A
subsequent change in nationality cannot by itself be considered as a sufficient justification for different treatment,
since the basis for the grant of the pension was the same service which both they and the soldiers who remained
French had provided . Nor can differences in the economic, financial and social conditions as between France and
Senegal be invoked as a legitimate justification. If one compared the case of retired soldiers of Senegalese nationality
living in Senegal with that of retired soldiers of French nationality in Senegal, it would appear that they enjoy the
same economic and social conditions. Yet, their treatment for the purpose of pension entitlements would differ.
Finally, the fact that the State party claims that it can no longer carry out checks of identity and family situation, so as
to prevent abuses in the administration of pension schemes cannot justify a difference in treatment. In the
Committee's opinion, mere administrative inconvenience or the possibility of some abuse of pension rights cannot be
invoked to justify unequal treatment. The Committee concludes that the difference in treatment of the authors is not
based on reasonable and objective criteria and constitutes discrimination prohibited by the Covenant.

10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights, is of the view that the events in this case, in so far as they produced effects
after 17 May 1984 (the date of entry into force of the Optional Protocol for France), disclose a violation of article 26 of
the Covenant.

11. The Committee, accordingly, is of the view that the State party is under an obligation, in accordance with the
provisions of article 2 of the Covenant, to take effective measures to remedy the violations suffered by the victims.
2. A v. Australia, CCPR/C/59/D/560/1993

The UN says:

The author is entitled to an effective remedy. In the Committee’s opinion, this should include adequate compensation
for the length of the detention to which A was subjected.

HRC (1997)

‘A’ is a Cambodian man born in 1934. He arrived in Australia by boat in 1989 with his Vietnamese wife and their
children, the year the Australian Government declared people fleeing post-genocidal violence in Cambodia to be
‘economic refugees’. The family was detained for more than four years in immigration detention. They had no contact
with a lawyer for nearly a year and, through transfers between detention centres in different Australian states, lost
contact with the legal support they did obtain.

In 1992, they joined with other Cambodian detainees to challenge in the Federal Court of Australia the Migration
Amendment Act 1992 which prevented their release from detention. In ‘direct response’, the Government ‘rushed
through’ further amendments to the Migration Act 1958, consolidating mandatory detention in law and restricting
‘compensation for unlawful detention to the symbolic sum of one dollar per day’. The group failed in a constitutional
challenge to the amendments.

With the eventual success of the author’s wife’s refugee claim, the family was released on temporary visas in January
1994, long before the Human Rights Committee (HRC) formed its Final Views.

In this oft-cited, ‘trail blazing’ decision, the HRC found that Australia’s system of ‘indefinite and prolonged’ mandatory
detention constitutes arbitrary detention in violation of article 9(1) of the ICCPR, regardless of its lawfulness
domestically. Further, the inability of the family to have their detention reviewed by a court violated article 9(4). The
Committee said that domestic review of the lawfulness of detention ought to include consideration of Australia’s
obligations under the ICCPR. The HRC found an added breach of article 2(3) (the right to an effective remedy),
despite this not being claimed explicitly by the author.

Australia rejected the Committee’s interpretation of the Covenant and refused to compensate the A family.

The HRC has deemed this response from the State Party unsatisfactory and classifies ‘follow-up dialogue’ as
‘ongoing’.
Restrictions to Non-Citizens’ Right

3. Nystrom v. Australia, CCPR/C/102/D/1557/2007 (18 August 2011)

On 18 August 2011 the United Nation’s Human Rights Committee published its View adopted in the Communication
(Communication No. 1557/2007) submitted by Stefan Lars Nystrom.

In this landmark decision the Committee found that Australia had violated article 12(4) (the right to enter his own
country), and articles 17 and 23(1) (protection from arbitrary interference with his family life) of the International
Covenant on Civil and Political Rights.

The watershed decision is a significant one – not only for Mr Nystrom who, the Committee held, should be allowed to
return to his home country, Australia – but also more generally for the development of the Committee’s jurisprudence
on non-citizens and the protection of families. Perhaps most significantly, this is the first time the Committee has
found that the right of a person to freely enter his or her ‘own country’ applies to non-citizens.

Background

Mr Nystrom was born in Sweden, while his mother was visiting family members (his mother was a permanent
resident of Australia). When he was 25 days old he travelled to Australia, where he had lived since he was 27 days
old, holding a Transitional (Permanent) Visa.

Mr Nystrom lived all his life in Australia with his mother and sister, and thought that he was an Australian citizen. He
had no close ties to Sweden; he had not learnt the language, and had no direct contact with his aunts, uncles and
cousins there.

Mr Nystrom had a substantial criminal record, and was convicted of a number of serious offences, including
aggravated rape when he was 16-years old. He was prosecuted for each of these offences under the Australian
criminal justice system.

On 12 August 2004 the (then) Minister for Immigration and Citizenship cancelled Mr Nystrom’s Transitional
(Permanent) Visa on the basis that he no longer satisfied the character test specified in section 501(6) of the
Migration Act 1958 (Cth). Mr Nystrom’s application for judicial review of the decision to cancel his visa was allowed by
the Full Federal Court, which ruled that “it is one thing to say that the responsibility to determine who should be
allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies with the discretion
of the responsible minister. That has little to do with the permanent banishment of an absorbed member of the
Australian community with no relevant ties elsewhere”.

The decision of the Full Federal Court was subsequently overturned by the High Court of Australia. With no further
avenues for domestic redress Mr Nystrom submitted a Communication to Committee, with the assistance of the
Human Rights Law Centre.

An application for interim measures to prevent his expulsion to Sweden was rejected by the Committee in late
December 2006, and Mr. Nystrom was deported – in quite extraordinary circumstances (see [2.7] – [2.8]) – on 29
December 2006.

Mr Nystrom submitted that Australia had violated its international legal obligations under the Covenant by canceling
his visa and deporting him to Sweden. Specifically, Mr Nystrom alleged that Australia had violated articles 9(1), 12(4),
14(7), 17, 23(1) and 26 of the Covenant, as well as article 2(1) read in conjunction with article 14(7), 17 and 23(1).
Further, Mr Nystrom submitted that Australia had violated his mother and sister’s rights under articles 17 and 23(1) of
the Covenant.

As noted above, the Committee held that there had been a violation of articles 12(4), 17 and 23(1) in respect of Mr
Nystrom. The Committee considered that the claim under article 14(7) was inadmissible (for failure to substantiate);
that the claim under article 9(1) failed on its merits; and that it was unnecessary to consider the claims under article
26 or article 2(1). The Committee also considered that the claims of the mother and sister failed on their merits.
Article 12(4)

The Committee’s decision on article 12(4) – which protects the right to enter one’s own country – is a particularly
important one; unequivocally establishing that an individual may be able to claim protection against arbitrary
deportation by a state party even though he or she is not a citizen of that state.

The Committee considered that the threshold question was whether Australia was, indeed, Mr. Nystrom’s “own
country”. It held that “there are factors other than nationality which may establish close and enduring connections
between a person and a country, connections which may be stronger than those of nationality” (at [7.4]). The
Committee considered that Australia was Mr Nystrom’s “own country”, “in the light of the strong ties connecting him to
Australia, the presence of his family in Australia, the language he speaks, the duration of his stay in the country and
the lack of any other ties than nationality with Sweden”.

The Committee went on to consider the alleged arbitrariness of the author’s deportation. The Committee noted that
“there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be
reasonable”.

The Committee’s liberal (and entirely appropriate) interpretation of “own country”, together with its suggestion that
there are likely to be no circumstances in which expulsion from such country can be anything other than arbitrary, will
no doubt resonate far beyond the case of Mr Nystrom.

Articles 17 and 23(1)

The Committee (again, entirely appropriately) considered that the decision of the Australian government to deport an
individual who had lived all of his life in Australia, leaving behind his mother, sister and nephews, amounted to an
“interference” with the family.

Although the deportation was lawful under the Migration Act 1958, the Committee considered that it was nonetheless
arbitrary, and therefore amounted to a violation of articles 17 and 23(1). In undertaking the balancing exercise
required to assess the arbitrariness of the decision, the Committee acknowledged the significance of Mr Nystrom’s
criminal record, and the Australian government’s stated desire to protect its other residents. However, on balance, the
Committee considered that “the Minister’s decision to deport [Mr Nystrom] had irreparable consequences…which
[were] disproportionate to the legitimate aim of preventing commission of further crimes, especially given the
important lapse of time [9 years] between the commission of offences considered by the Minister and the
deportation”.

Conclusions

The Committee held that, as a party to the Optional Protocol to the Covenant, Australia was bound to provide Mr
Nystrom with an effective remedy. In the Committee’s view, this would include “allowing the author to return and
materially facilitating his return to Australia”. Significantly, the Committee also held that Australia “was under an
obligation to avoid exposing others to similar risks of a violation in the future”.

The Human Rights Law Centre should be congratulated for its brilliant advocacy in this case over the past five years.
No doubt this advocacy will continue over the coming months. As the Committee’s decision is not domestically
binding, Mr Nystrom’s fate now lies in the hands of the Australian government. In light of the government’s recent
attitude towards its international obligations (in the refugee context), it seems likely that Mr Nystrom’s battle is not yet
over, and it may be some time before he is permitted to return to his own country, and be reunited with his family.
4. Warsame v Canada CCPR/C/102/D/1959/2010 (21 July 2011)

Facts

The author was born in 1984 in Saudi Arabia, but he never obtained a Saudi Arabian citizenship. He is of Somali
descent, but has never lived in or visited Somalia. He came to Canada in 1988 and was granted permanent resident
status as a dependent of his mother, but he was not granted Conventional Refugee status. After two criminal
convictions sentenced with imprisonment, the author received in 2006 a deportation order from Canada for “serious
criminality”.

The Pre-Removal Risk Assessment (PRRA) found that the author would face risk to life and ill-treatment if returned to
Somalia. This was based on the author’s age, gender, lack of family or clan support, lack of previous residence in
Somalia, lack of language skills as well as on documentary evidence. The Ministry of Public Safety responded that
the author would not be at personal risk if deported to Somalia, that he represented a danger to the public in Canada
and that “humanitarian and compassionate hardships did not outweigh the danger to the public.” The author’
application for leave to judicially review the Ministry’s decision was dismissed for failure to file an application record,
as he could not afford legal counsel and was refused legal aid. On 21 July 2010 the author was informed that he
would be deported to Somalia on 30 July.

Consideration of admissibility

Article 5 §2(b) of the Optional Protocol (OP): The Committee recalls that the authoris required to exhaust all remedies
that appear to be effective and are de facto available (No. 1003/2001 P.L. v. Germany 2003; No. 433/1990 A.P.A. v.
Spain 1994). The Committee finds that the negative decisions the author failed to appeal were either not effective
(because they would not operate to stay removal or because there is clear jurisprudence setting a high threshold for
an appeal to be successful) or not de facto available, as legal aid had been denied. Accordingly the author did not
need to exhaust these remedies. The Committee therefore considered this part of the communication admissible. The
Committee also declared the claims under Art.6 §1 and Art.7 admissible, since the reasons giving by the author not to
return were sufficiently substantiated. Claims under Art.12 §4, and Art.17 and Art.23 §1, read in conjunction with Art.2
§3 of the t5Covenant are found admissible.

Consideration of merits

Art.6 §1 and Art.7: Bearing that the author has never lived in Somalia, has limited or no clan support, does not speak
the language and does not have any family in there, he would face a real risk of harm upon return, the Committee
finds that deportation to Somalia would, if implemented, constitute a violation of Art.6 §1 and7 (
The Unborn

5. Queenan v Canada, CCPR/C/84/D/1379/2005 (23 August 2005)

2) Facts

The author, as a Canadian citizen, was presented his communication on behalf of Canadian unborn children.
According to the author, the practice of abortion is openly facilitated and sponsored by the State. He claimed that this
practice is the consequence of the fact that unborn children do not benefit from legal protection and are denied the
right to life by the State.

The author submitted a copy of Part VIII, s. 223 of the Canadian Criminal Code, which states that a child became a
human being when born, and argued that an unborn human's life may be freely taken as long as it is done while the
child is in the womb of its mother.

The author further submitted statistics from 1987 to 2001, published by Canada on the official Canadian Government
website, and pointed out that approximately 100,000 lives are currently taken every year by doctors in Canada.

The author argued that although abortion is a social and moral issue, it is also a human rights issue which affects
both the mother and child, who should have the same fundamental rights. He further claimed that popular acceptance
or belief could not supersede human rights, and that the fact that there is a modern consensus reflecting the view that
abortion is an acceptable practice does not make it tolerable. He added that polls in Canada indicated that most
people want women to have the choice of abortion, but that the issue of human rights is not up to the outcome of
polls and that the victims are not being included in the sample being polled.

3) Law

International Law

• Article 6 of the International Covenant on Civil and Political Rights (right to life)

• Article 7 of the International Covenant on Civil and Political Rights (right to be free from

torture or to cruel, inhuman or degrading treatment or punishment)

• Article 16 of the International Covenant on Civil and Political Rights (right to recognition

everywhere as a person before the law)

• Article 26, the International Covenant on Civil and Political Rights (right to nondiscrimination)

• Article 1 of the Optional Protocol to the International Covenant on Civil and Political Rights

(procedure for communications)

4) Legal Arguments

The Author

The author claimed that unborn children are victims of a violation of Article 26 of the Covenant, as the State party did
not treat unborn children as equal before the law, and did not provide them with legal protection. He pointed out that
Article 26 of the Covenant is by nature intended to prevent all forms of discrimination against any human, without
distinction of any kind, including distinction such as “birth or other status", and that it covers all of humankind, as can
be implied from the use of words like "all persons", "everyone", "all members of the human family", "human beings"
and "all individuals". He opined that the only non-discriminatory definition of "human" or "person" includes all living
members of the human species, and that a line cannot be drawn to identify when an embryo becomes human in
terms of human rights.

5) Decision

The Committee noted that the author did not claim that he is a victim of the alleged violations of the Covenant by the
State. The author stated that he was submitting the communication on behalf of all unborn children in the State in
general. The Committee noted that, in accordance with Article 1 of the Optional Protocol, communications must be
submitted by or on behalf of "individuals" who claim "that any of their rights enumerated under the Covenant" have
been violated. The Committee therefore considered that the author's communication amounted to an actio popularis
and was inadmissible under Article 1 of the Optional Protocol.
6. Huaman v Peru CCPR/C/85/D/1153/2003 (22 November 2005)

Facts

A 17-year-old Peruvian minor was denied a legal therapeutic abortion when tests indicated that her fetus was
anencephalic and a gynecologist and obstetrician advised her to terminate the pregnancy, informing her that
continued pregnancy would cause risks to her life. The hospital director refused, alleging the abortion would be
unlawful according to the Peruvian Criminal Code, despite the exception outlined in article 119 that allowed
termination when it would save the pregnant woman’s life or avoid serious and permanent damage to her health. The
author carried the fetus to term and gave birth to an anencephalic baby girl who died within four days of birth during
which time the author breastfed her. The author was subsequently diagnosed with severe depression by a
psychiatrist.

The author alleged violations of her rights under Article 2 (effective remedy) of the International Covenant on Civil and
Political Rights (ICCPR) as the state failed to ensure that she could exercise her right to receive an abortion. Further,
she claimed that she suffered from discrimination on the basis of sex as the violation of her right to procure a legal
abortion affects only women and was denied to her in breach of Article 3 (freedom from discrimination). Also, the
author’s alleged a violation of Article 6 (right to life) when Peru did not take steps to ensure that the author secured a
safe termination of pregnancy. The author claimed that she endured cruel and inhuman treatment (Article 7) on
account of the pain and distress she experienced when she was forced to carry the anencephalic fetus to term, give
birth to her deformed daughter knowing she would survive only briefly, and then experience her death. The author
alleged a breach of her right to privacy (Article 17), given that the right protects women from interference in decisions
that affect their bodies and protects their right to make decisions on their reproductive lives. The author also claimed
that was not provided with the care she required as an adolescent girl in breach of Article 24 (children’s rights).
Finally, the author maintained that she failed to receive the special protection she deserved on account of her specific
needs and that this was incompatible with the assurance of equal protection under the law (Article 26).

Decision and Reasoning

The Committee dismissed the author’s claims regarding violations of articles 3 (freedom from discrimination) and 26
(right to equal protection) of the ICCPR as the author had not provided any evidence relating to the events that
demonstrated any type of discrimination.

The Committee found a breach of Article 7 (freedom from torture or to cruel, inhuman or degrading treatment or
punishment) based on the State's failure to allow the author to benefit from a therapeutic abortion that caused her
mental suffering. Because the Committee found the state in violation of Article 7, it did not consider it necessary to
make a finding on article 6 of the Covenant.

The Committee concluded that the state violated Article 17 (right to privacy) based on the hospital director's refusal
to act in accordance with the author’s decision to terminate her pregnancy.

The Committee also found the state in violation of article 24 (children's rights), as the author was not provided the
special medical and psychological support she needed as a minor.

The Committee reiterated that Article 2 (effective remedy) lays down general obligations for States and is analyzed
together with the other allegations. The Committee accepted the author’s claims regarding the lack of an adequate
legal remedy, finding violations of Article 2 in conjunction with Articles 7 (freedom from torture or to cruel, inhuman or
degrading treatment or punishment), 17 (right to property), and 24 (children's rights).

Decision Excerpts

"3.9 The author claims that the administration of the health centre left her without protection as a result of a restrictive
interpretation of article 119 of the Criminal Code. She adds that the text of the law contains nothing to indicate that
the exception relating to therapeutic abortion should apply only in cases of danger to physical health. But the hospital
authorities had drawn a distinction and divided up the concept of health, and had thus violated the legal principle that
no distinction should be drawn where there is none in the law. She points out that health is “a state of complete
physical, mental and social wellbeing and not merely the absence of disease or infirmity”, so that when the Peruvian
Criminal Code refers to health, it does so in the broad and all-embracing sense, protecting both the physical and the
mental health of the mother."

"5.2 The Committee notes that, according to the author, the same matter has not been submitted under any other
procedure of international investigation. The Committee also takes note of her arguments to the effect that in Peru
there is no administrative remedy which would enable a pregnancy to be terminated on therapeutic grounds, nor any
judicial remedy functioning with the speed and efficiency required to enable a woman to require the authorities to
guarantee her right to a lawful abortion within the limited period, by virtue of the special circumstances obtaining in
such cases. The Committee recalls its jurisprudence to the effect that a remedy which had no chance of being
successful could not count as such and did not need to be exhausted for the purposes of the Optional Protocol.4 In
the absence of a reply from the State party, due weight must be given to the author’s allegations. Consequently, the
Committee considers that the requirements of article 5, paragraph 2 (a) and (b), have been met."

"6.3 The author also claims that, owing to the refusal of the medical authorities to carry out the therapeutic abortion,
she had to endure the distress of seeing her daughter’s marked deformities and knowing that she would die very
soon. This was an experience which added further pain and distress to that which she had already borne during the
period when she was obliged to continue with the pregnancy. The author attaches a psychiatric certificate dated 20
August 2001, which confirms the state of deep depression into which she fell and the severe consequences this
caused, taking her age into account. The Committee notes that this situation could have been foreseen, since a
hospital doctor had diagnosed anencephaly in the fetus, yet the hospital director refused termination. The omission
on the part of the State in not enabling the author to benefit from a therapeutic abortion was, in the Committee’s view,
the cause of the suffering she experienced. The Committee has pointed out in its General Comment No. 20 that the
right set out in article 7 of the Covenant relates not only to physical pain but also to mental suffering, and that the
protection is particularly important in the case of minors. (6) In the absence of any information from the State party in
this regard, due weight must be given to the author’s complaints. Consequently, the Committee considers that the
facts before it reveal a violation of article 7 of the Covenant. In the light of this finding the Committee does not
consider it necessary in the circumstances to made a finding on article 6 of the Covenant."
Artificial Entities

7. Sunday Times v UK (1980) 2 EHRR 317

Case Summary and Outcome

The European Court of Human Rights held that an injunction restraining the Sunday Times from publishing an article
related to a settlement being negotiated out of court violated its freedom of expression. In 1972 the British newspaper
the Sunday Times published articles concerning the settlement negotiations for the “thalidomide children,” following
pregnant women’s’ use of the drug thalidomide which resulted in severe birth defects. The newspaper had criticized
the settlement proposals and subsequently, an injunction was issued based on the claim that future publications
would constitute contempt of court. Although the Court found that the interference was proscribed by law and pursued
the legitimate aim of safeguarding the impartiality and authority of the judiciary, it was not necessary in a democratic
society. The Court observed that the right to freedom of expression guarantees not only the freedom of the press to
inform the public but also the right of the public to be properly informed, and the thalidomide disaster was a matter of
undisputed public concern. The court noted that the proposed article was moderate and balanced in its arguments on
a topic that had been widely debated in society and therefore the risk of undermining the authority of the judiciary was
minimal. The Court concluded that the interference did not correspond to a social need sufficiently pressing to
outweigh the public interest in freedom of expression within the meaning of the European Convention.

Facts

Between 1958 and 1961, thalidomide was prescribed as a sedative for pregnant women. Several women who took
the drug during their pregnancy, however, gave birth to children who suffered from deformities. By November 1961,
the manufacturers of thalidomide, Distillers Company (Biochemicals) Limited (Distillers), withdrew all drugs containing
this ingredient from the British market.

Due to this, the parents of seventy deformed children filed actions against Distillers. The parents held that the
company was “negligent in the production, manufacture and marketing of the drugs” that had caused the defects.
[para. 9] Several of these cases were settled; however, there were some that did not settle, and throughout 1968,
various other actions were filed against Distillers related. By the end of 1971, there were 389 claims that had been
filed against the company.

While these actions were being litigated, there were newspaper articles and reports that were being published
regarding these actions and the birth defects. In particular, The Sunday Times published an article on September 24,
1972, titled “Our Thalidomide Children: A Cause for National Shame.” The article discussed the settlements and
characterized such offers as “grotesquely out of proportion to the injuries suffered.” [para. 11] Furthermore, the article
criticized English law regarding the recovery and assessment of damages among other things. In a footnote to this
article there was an announcement that a another article would be published in order to uncover in more depth the
cause of these birth defects.

In November 17, 1972, the Divisional Court of the Queen’s Bench granted an injunction in order to restrain the
publication of the future article and that its publication would constitute contempt of court. The Sunday Times filed a
motion for the injunction to be removed but it was unsuccessful. At the same time, several members in Parliament
and newspaper articles were debating the same issues that were the subject of the restricted article. Finally in 1976,
the injunction was lifted.

Decision Overview

The Court first discussed the issue of contempt of law. The applicants argued that the law of contempt of court was
so vague and uncertain and the principles enunciated by that decision so novel that the restraint imposed could not
be regarded as “prescribed by law”. [para. 46]

The Court observed that the word “law” in the expression “prescribed by law” covers not only statute but also
unwritten law. [para 47] The Court held that there are two “requirements that flow from the expression ‘prescribed by
law.’” [para. 47] First, “the law must be adequately accessible”; and second, “a norm cannot be regarded as ‘law’.”
[para. 47] In this manner, the Court stated that “assumptions and guesses do not suffice,” and rather “the application
of legal rules must be given to any [] case.” [para. 47] Thus, “the law must be formulated with sufficient precision to
enable the citizen to regulate his conduct,” by being able to foresee what is reasonable and what type of
consequences an action may cause. [para. 47]

Using this standard, the Court held “that the applicants were able to foresee, to a degree that was reasonable in the
circumstances, the consequences of publication of the draft article.” [paras. 51, 52] Therefore, while there was indeed
an interference with the applicants’ right to freedom of expression, it was an interference that was prescribed by law
within the meaning of Article 10.

Next, the Court analyzed whether the restriction pursued a legitimate aim and was necessary within a democratic
society. The Court found that indeed the interference with the applicant’s freedom of expression pursued a legitimate
aim because the interference sought to maintain an objective judiciary and the potential recourse that Distillers could
find in the courts.

Second, the Court found that such interference did not meet the “necessary within a democratic society” standard
because “the inference…did not correspond to a social need sufficiently pressing to outweigh the public interest in
freedom of expression within the meaning of the Convention.” [para. 67] Therefore, the Court held that there had
been a violation of Article 10 of the ECHR.
8. Refah Partasi v. Turkey (2003) 37 EHRR 1.

Facts

Refah partisi was a political party in Turkey formed in 1989. The results of the 1995 general election made Refah the
largest political party in Turkey, and in 1996 Refah came to power by forming a coalition government. In 1997 the
State authorities started proceedings in the Turkish Constitutional court with an application to have Refah dissolved
on the grounds that it was a “centre” of activities contrary to the principle of secularism which is enshrined in the
Constitution of Turkey. By its judgment of 9 January 1998, the Constitutional court dissolved Refah on the ground that
it became a centre of anti-constitutional activities and banned its leaders (including the applicants) for five years from
holding similar office in any other political party.

The applicants alleged that the dissolution of Refah by the Constitutional court and the suspension of certain political
rights of applicants who were leaders of Refah had breached Articles 9, 10, 11, 14, 17 and 18 of the Convention and
Articles 1 and 3 of Protocol No. 1.

Procedural Posture

On 17 January 1998 the Turkish Constitutional Court dissolved Refah. The case originated in four applications
against the Republic of Turkey by the applicants. The applications were transmitted to the Court on 1 November
1998. The applications were joined (Rule 43 § 1) and on 3 October 2000 they were declared partly admissible by a
Chamber of that Section. On 31 July 2001 the Chamber gave judgment, holding by four votes to three that there had
been no violation of Article 11. On 30 October 2001 the applicants requested, under Article 43 of the Convention and
Rule 73, that the case be referred to the Grand Chamber. On 12 December 2001 a panel of the Grand Chamber
decided to refer the case to the Grand Chamber. A hearing took place in public in the Human Rights Building,
Strasbourg, on 19 June 2002. The Court delivered is judgment on 13 February 2003.

Issues The questions facing the Court in the case of Refah v. Turkey, are :

- Has there been a violation of article 11?

- Is the action taken by the government in accordance to the rules set in article 11, §2

Rights

Directly: The right to assembly and freedom of association

Indirectly: The right to freedom of expression, freedom of religion

Holding and Reasoning

The Court held that Refah’s dissolution and measures imposed on its leaders’ political rights amounted to an
interference with the applicants’ exercise of their right to freedom of association. Such an interference will constitute a
breach of Article 11 unless it was: 1) “prescribed by law”, 2) pursued one or more of the legitimate aims set out in
paragraph 2 of that provision and 3) was “necessary in a democratic society” for the achievement of those aims.
(§51)

1) “Prescribed by law”: the Court reiterates that the expression requires firstly that the impugned measure
should have a basis in domestic law. It also refers to the quality of law in question, requiring that it be accessible to
the persons concerned and formulated with sufficient precision to enable them to foresee, to a degree that is
reasonable in the circumstances, the consequences which a given action may entail. In the case The Court notes that
the dispute concerned the constitutionality of the activities of a political party. The written law most relevant to the
question whether the interference was “prescribed by law” is the Turkish Constitution. The Court considers that the
applicants were reasonably able to foresee that they ran the risk of proceedings to dissolve Refah if the party
engaged in anti-secular activities.
2) Legitimate aim: Taking into account the importance of the principle of secularism for the democratic system
in Turkey, the Court considers that Refah’s dissolution pursued several of the legitimate aims listed in Article 11,
namely protection of national security and public safety, prevention of disorder or crime and protection of the rights
and freedoms of others.

3) “Necessary in a democratic society”:

The court underlines that the state has an obligation to ensure pluralism in a democratic society and freedom to hold
and practice religious believes, or not to hold religious believes. It may be necessary to place restrictions to make
sure that several religions can coexist within one and the same population. A political party may promote changes in
law and constitution through the state’s mechanisms. But the changes they promote must itself be compatible with
democratic principals. Parties that want changes in legislation which will bring the destruction of democratic society
can not lay claim of the protection of the convention. Groups and individuals must sometimes agree to some
limitations in their rights to ensure the continuing stability and security of the state.

According to the Convention and the case-law of the Turkish courts on constitutional-law issues, nothing oblige
States to tolerate the existence of political parties that are seeking the destruction of democracy and the rule of law.
Refah partisi had, on several occasions, portended the intention to set up a regime based on sharia, and according to
the Court, it was reasonable to conclude that, if given the opportunity , they would. The rules of sharia are
incompatible with the democratic regime, and the Government mentioned a number of instances of incompatibility
between the main rules of sharia and the rights and freedoms guaranteed by the Convention. The fact that Refah did
not exclude recourse to force in order to implement it’s policy and keep the system it envisaged in place, and the fact
of the real opportunities Refah had to put it’s plans into practice, made the danger to democracy more tangible and
more immediate. The conclusion of the different issues mentioned above, following a rigorous review to verify that
there was convincing and compelling reasons justifying Refah’s dissolution and the temporary forfeiture of certain
political rights imposed on the other applicants, made it reasonable for the Court to say that the situation met the
requirements for “pressing social needs” .

Therefore, it follows that Refah’s dissolution was regarded as “necessary in a democratic society” within the meaning
of article 11 §2 .

Rules of Law

A political party and its members can be subject to the restrictions of freedom of assembly and association under
Article 11 paragraph 2 if party’s activities are contrary to the fundamental principles of democracy and the
Convention.

While political parties are the main protagonists of democratic policies, their activities are not exempt from certain
restrictions.

Limitations

the rights of individuals and groups may be limited to ensure the existence of democracy in the state. One of the main
goals of the convention is to protect democratic ideals, groups or political parties may not claim the protection of the
convention when seek the destruction of these ideals.

Decision

The Court held that since there was no violation of Article 11, it was not necessary to examine the
complaints under Art. 9, 10, 14, 17 and 18 of the Convention and Articles 1 and 3 of Protocol No. 1.
9. Singer v Canada CCPR/C/51/D/455/1991 (15 August 1994)

Decision on admissibility

1. The author of the communication is Allan Singer, a Canadian citizen born in 1913 and resident of Montreal,
Canada. He claims to be a victim of "discrimination on languages" by Canada, in violation of the International
Covenant on Civil and Political Rights, without however specifically invoking article 26 thereof.

The facts as presented by the author

2.1 The author runs a stationary and printing business in Montreal. His clientele is predominantly but not exclusively
anglophone. Starting in 1978, the author received numerous summons from the Québec authorities, requesting him
to replace commercial advertisements in English outside his store by advertisements in French. The author appealed
against all these summons before the local courts, and contended that the Charter of the French Language (Bill 101)
discriminated against him because it restricted the use of English for commercial purposes; in particular, Section 58
of Bill 101 prohibited the posting of commercial signs in English outside the author's store. In October 1978, the Court
of Sessions of Montreal found against him. The Superior Court of Québec, Montreal, did likewise on 26 March 1982,
and so did the Court of Appeal of Québec in December 1986.

2.2 The author then took his case to the Supreme Court of Canada which, on 15 December 1988, decided that an
obligation to use French only in outdoor advertising was unconstitutional and struck down several provisions of the
Québec Charter of the French Language (Charte de la Langue Française). The Québec legislature, however, passed
another legislative measure, Bill 178, on 22 December 1988, whose express ratio legis was to override the judgment
handed down by the Supreme Court of Canada one week earlier. With this, the author contends, he has exhausted
available remedies.

The complaint

3. The author contends that Bill 101, as amended by Bill 178, is discriminatory, in that it restricts the use of English to
indoor advertising and places businesses which carry out their activities in English in a disadvantageous position vis-
à-vis French business.

Legislative provisions

4.1 The relevant original provisions of the Charter of the French Language (Bill No. 101, S.Q. 1977, C-5) have been
modified several times. In essence, however, they have remained substantially the same. In 1977, section 58 read as
follows:

"Except as may be provided in this Act or the regulations of the Office de la langue française, signs and posters and
commercial advertising shall be solely in the official language."

4.2 The original wording of section 58 was replaced in 1983 by section 1 of the Act to amend the Charter of the
French Language (S.Q. 1983, C-56) which read:

"58. Public signs and posters and commercial advertising shall be solely in the official language.

"Notwithstanding the foregoing, in the cases and under the conditions or circumstances prescribed by regulation of
the Office de la langue française, public sings and posters and commercial advertising may be both in French and
another language or solely in another language..."

4.3 The initial language legislation was struck down by the Supreme Court in La Chaussure Brown's Inc. et al. v. the
Attorney General of Quebec (1989) 90 N.R. 84. Following this, section 58 of the Charter was amended by section 1
of Bill No. 178. While certain modifications were made relating to signs and posters inside business premises, the
compulsory use of French in signs posters outside remained.
4.4 Section 58 of the Charter, as modified by section 1 of Bill No. 178, now reads:

"58. Public signs and posters and commercial advertising, outside or intended for the public outside, shall be solely in
French. Similarly, public signs and posters and commercial advertising shall be solely in French,

"1. Inside commercial centres and their access ways, except inside the establishments located there;

"2. Inside any public means of transport and its access ways;

"3. Inside the establishments of business firms contemplated in section 136;

"4. Inside the establishments of business firms employing fewer than fifty but more than five persons, where such
firms share, with two or more other business firms, the use of a trademark, a firm name or an appellation by which
they are known to the public.

"The Government may, however, by regulation, prescribe the terms and conditions according to which public signs
and posters and public advertising may be both in French and in another language, under the conditions set forth in
the second paragraph of section 58.1, inside the establishments of business firms contemplated in subparagraphs 3
and 4 of the second paragraph.

"The Government may, in such regulation, establish categories of business firms, prescribe terms and conditions
which vary according to the category and reinforce the conditions set forth in the second paragraph of section 58.1."

4.5 Section 6 of Bill No. 178 modified section 68 of the Charter, which now reads:

"68. Except as otherwise provided in this section, only the French version of a firm name may be used in Quebec. A
firm name may be accompanied with a version in another language for use outside Quebec. That version may be
used together with the French version of the firm name in the inscriptions referred to in section 51, if the products in
question are offered both in and outside Quebec.

"In printed documents, and in the documents contemplated in section 57 if they are both in French and in another
language, a version of the French firm name in another language may be used in conjunction with the firm name.

"When texts or documents are drawn up in a language other than French, the firm name may appear in the other
language without its French version.

"On public signs and posters and in commercial advertising,

"1. A firm name may be accompanied with a version in another language, if they are both in French and in another
language;

"2. A firm name may appear solely in its version in another language, if they are solely in a language other than
French."

4.6 Section 10 of Bill No. 178 contains the so-called "notwithstanding" clause, which provides that:

"The provisions of section 58 of the first paragraph of section 68, brought into effect under sections 1 and 6
respectively of the present Bill, shall operate irrespective of the provisions of section 2, paragraph (b), and section 15
of the Constitutional Act of 1982 ... and shall apply notwithstanding articles 3 and 10 of the Charter of Human Rights
and Freedoms."

4.7 Another "notwithstanding" provision is incorporated into section 33 of the Canadian Charter of Human Rights and
Freedoms, which reads:

"1. Parliament or the legislature of a province may expressly declare in an act of Parliament or of the legislature, as
the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or
sections 7 to 15 of this Charter.
"2. An act or a provision of an Act is respect of which a declaration made under this section is in effect shall have
such operation as it would have but for the provision of this Charter referred to in the declaration.

"3. A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such
earlier date as may be specified in the declaration.

"4. Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

"5. Subsection (3) applies in respect of a re-enactment made under subsection (4)."

The State party's information and observations

5.1 The communication was transmitted to the State party under rule 91 of the Committee's rules of procedure on 5
August 1991. In its submission of 6 March 1992, which also relates to communications No. 359/1989
(Ballantyne/Davidson) and 385/1989 (McIntyre) FN1, the State party notes that a number of litigants have challenged
the validity of Bill 178 before the Québec courts, and that hearings on the issue before the Court of Québec were held
on 14 January 1992. The proceedings continue, and lawyers for the provincial government of Québec were
scheduled to present the point of view of Québec on 23 and 24 March 1992.

---------------------------------------------------------------------------------------------------------------------

FN1 Views adopted by the Committee on 31 March 1993.

---------------------------------------------------------------------------------------------------------------------

5.2 The State party contends that Québec's Code of Civil Procedure entitles the author to apply for a declaratory
judgment that Bill 178 is invalid and adds that this option is open to him regardless of whether criminal charges had
been instituted against him or not. It argues that consistent with the well-established principle that effective domestic
remedies must be exhausted before the jurisdiction of an international body is engaged, Canadian courts should have
an opportunity to rule on the validity of Bill 178, before the issue is considered by the Human Rights Committee.

5.3 The State party further argues that the "notwithstanding" clause in Section 33 of the Canadian Charter of Rights
and Freedoms is compatible with Canada's obligations under the Covenant, in particular with article 4 and with the
obligation, under article 2, to provide its citizens with judicial remedies. It explains that, firstly, extraordinary conditions
limit the use of Section 33. Secondly, Section 33 is said to reflect a balance between the roles of elected
representatives and courts in interpreting rights: "A system in which the judiciary is given full and final say on all
issues of rights adversely impacts on a key tenet of democracy - that is, participation of citizens in a forum of elected
and publicly accountable legislatures on questions of social and political justice ... The 'notwithstanding' clause
provides a limited legislative counterweight in a system which otherwise gives judges final say over rights issues".

5.4 Lastly, the Government affirms that the existence of Section 33 per se is not contrary to article 4 of the Covenant,
and that the invocation of Section 33 does not necessarily amount to an impermissible derogation under the
Covenant: "Canada's obligation is to ensure that Section 33 is never invoked in circumstances which are contrary to
international law. The Supreme Court of Canada has itself stated that 'Canada's international human rights
obligations should [govern] ... the interpretation of the content of the rights guaranteed by the Charter'." Thus, a
legislative override could never be invoked to permit acts clearly prohibited by international law. Accordingly, the
legislative override in Section 33 is said to be compatible with the Covenant.

5.5 The State party therefore requests the Committee to declare the communication inadmissible.

6.1 In his comments, the author contends that his case in against Bill 101 and not against Bill 178, and that it is based
upon the State party's perceived violations of the provisions of the Constitution Act of Canada 1867, and not on the
Constitution Act of 1982. He argues that any challenge of the contested legislation would be futile, in the light of the
Québec government's decision to override the Supreme Court's judgment on 15 December 1988 by enactment of Bill
178 a week later.

6.2 The author claims that the "notwithstanding" clause of Section 33 of the Canadian Charter of Rights and
Freedoms does not apply to his case, as he had been charged for violating the Charter of the French Language in
1978, before Section 33 took effect. In this context, he argues that no Canadian Government can abrogate or
supplant freedoms that were in existence before the Charter came into being, and adds that under the Canadian
tradition of civil liberties, rights may be extended but cannot be curtailed.

6.3 Finally, the author asserts that the "notwithstanding" clause of Section 33 is a negation of the rights enshrined in
the Charter, as it allows (provincial) legislatures to "attack minorities and suspend their rights for a period of five
years".

Issues and proceedings before the Committee

7.1 Before considering any claims contained in a communication, the Human Rights Committee must, in accordance
with rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the
Covenant.

7.2 The Committee notes that issues similar to those raised by the author have been addressed in communications
Nos. 359/1989 and 385/1989 (Balantyne/Davidson and McIntyre v. Canada), which were declared admissible on the
merits on 11 April 1991 and in respect of which the Committee adopted a decision on the merits on 31 March 1993.
The Committee will therefore draw upon its argumentation in the aforementioned decisions.

7.3 The State party has contended that as the issue of the validity of Bill 178, which amends Bill 101, the legislation
challenged by the author, is currently before the courts of Québec and the author could apply for a declaratory
judgment that the Bill is invalid, the communication is inadmissible. While taking due note of the State party's
argument, the Committee is unable to accept the suggestion that effective remedies would still be available to the
author.

7.4 The Committee notes that while some of the original statutory provisions of the Charter of the French Language,
which are designed to protect the visage linguistique of Québec, have been modified several times between 1978
and 1988, also after they were found to be unconstitutional and declared inoperative successively by the Superior,
Appeal and Supreme Courts, the only effect this has had was that the relevant provisions were replaced by ones that
are the same in substance to the ones they replaced, but reinforced by the "notwithstanding" clause of Section 10 of
Bill 178. The net result has been that there has been a continued ban on the use of any language other than French
in outdoor advertising since 1978, and that it remains a criminal offence to disregard the ban.

7.5 As to whether a declaratory judgment declaring Bill 178 invalid would provide that author with an effective
remedy, the Committee notes that such a judgment would still leave the Charter of the French Language operative
and intact, and that the legislature of Québec could still override any such judgment by replacing the provisions struck
down by others substantially the same and by invoking the "notwithstanding" clause of the Québec Charter of Rights
and Freedoms. On the basis of precedent, and in the light of the legislative history of Bill 178 and its predecessors,
such a course of action is not merely hypothetical. The net result, a continued ban on languages other than French in
outdoor advertising, would remain the same.

7.6 The Committee, moreover, is satisfied that the author has made a reasonable effort to substantiate his
allegations, for purposes of admissibility, and that his claims should be examined on the merits. While the author has
not invoked specific provisions of the Covenant, the Committee considers that the issues complained of may raise
issues under articles 19, 26 and 27 of the Covenant. Furthermore, although the author has specifically challenged
only Bill 101, which was amended by Bill 178 in 1988, the Committee is not precluded from examining the
compatibility of both laws with the Covenant, as the central issue, language-based discrimination in commercial
outdoor advertising, remains the same.
7.7 The Committee is well aware that the State party and the provincial government have already made substantial
submissions on the matter under consideration, which concern both the admissibility and the merits of the case. At
this stage, however, the Committee must limit itself to the procedural requirement of deciding on the admissibility of
the communication. Should the State party wish to make a further submission on the merits, it should do so within six
months of the transmittal to it of this decision. The author of the communication will be given an opportunity to
comment thereon. If no further explanations or statements are received from the State party under article 4,
paragraph 2, of the Optional Protocol, the Committee will proceed to adopt its Views in the light of the written
information available.

8. The Human Rights Committee therefore decides:

(a) That the communication is admissible;

(b) That any further explanations or statements which the State party may wish to submit to clarify the matter and the
measures taken by it, should, in accordance with article 4, paragraph 2, of the Optional Protocol, reach the Human
Rights Committee within six months of the date of transmittal to it of this decision. Should the State party not intend to
make a further submission in the case, it is requested to so inform the Committee as soon as possible to permit an
early disposition of the matter;

(c) That any further explanations or statements received from the State party shall be communicated by the
Secretary-General, under rule 93, paragraph 3, of the Committee's rules of procedure, to the author, with the request
that any comments that he may wish to submit thereon should reach the Human Rights Committee in care of the
Centre for Human Rights, United Nations Office at Geneva, within six weeks of the date of transmittal;

(d) That this decision be communicated to the State party and to the author.
10. Lamagna vs Australia, CCPR/C/65/D/737/1997 (30 April 1999)

Decision on admissibility

1. The author of the communication is Mrs. Michelle Lamagna, matron and owner of Villa Magna Nursing Care
Centre in NSW Australia. No specific violation of the International Covenant on Civil and Political Rights is alleged.

The facts as submitted by the author

2.1 The Government of the Commonwealth of Australia operates a subsidy scheme under the National Health Act
1953 (Commonwealth) ("the Act") by which the proprietors of approved nursing homes are paid a benefit in respect of
each approved patient for each day the patient receives nursing care in the home.

2.2 In June 1991 Mrs. Lamagna and her husband, as Lamagna Enterprises Pty, purchased a nursing home. In
1991/92 the Commonwealth Department of Human Services and Health conducted an audit ("validation") of the
subsidies that it had paid to the previous owner of the nursing home in 1986/87 and found an overpayment of
subsidies. The system of funding adopted under the Act in 1987 meant that this error had led to additional
overpayments in the subsequent years 1987/88 to 1990/91. The amount of these overpayments was determined in
1991/92 to be A$94,912. Also in 1991/92 a further overpayment was found for the 1990/91 financial year. This
followed the submission by the previous owner to the Department of the form relating to employment of staff. This
arrangement had been agreed upon by the vendor and purchaser in the agreement of sale. This overpayment was
calculated to be A$50,404.

2.3 In April 1992 the Department notified Mrs. Lamagna of the amount of overpayments from the 1986/87 to 1990/91
period and that it would recover them from future subsidy payments to her. In July 1992 the Department notified her
of the overpayment from the 1990/91 financial year and that it would recover this also from future subsidy payments.
Apparently, legal advice received by the Department was that, at that time, overpayments did not constitute a debt
that could be recovered through the courts since it was not clear that the assessment of overpayment established a
liability on the part of either of the previous proprietor or Mrs. Lamagna.

2.4 Mrs. Lamagna's complaint is that the Department did not disclose to her that these so-called "negative loadings"
existed on the nursing home, even though she presented a letter from the vendor to the Department authorizing the
Department to disclose all relevant matters to her.

2.5 It is worth noting that the Commonwealth has since amended the law to provide for a compulsory notice to the
Government of the sale of a nursing home coupled with a compulsory waiting period of 90 days. This amendment will
enable any loadings to be detected by the Department and declared, thus protecting the interests of purchasers. A
further amendment is the provision for prospective purchasers to have access to the future fee scale of a nursing
home.

2.6 It is apparent that Mrs. Lamagna has explored a range of avenues of review. According to the report of the
Ombudsman the first of these was an unsuccessful representation to the Minister of the Department.

2.7 The second was legal action against the Department (Lamagna Enterprises Pty. Ltd. V the Secretary of the
Department of Community Services and Health (1993) 40 FCR 235). In this litigation Mrs. Lamagna sought an order
setting aside the determination by the Secretary of the new scale of fees for the nursing home which took into
account the negative loadings on the nursing home. This legal action was also unsuccessful, the judge finding that
the Department had acted lawfully. Upon construction of the Act:

- The principle that allowed the Secretary to take these negative loadings into account was not promulgated for an
improper purpose. P13 the Judge cited law (Neviskia Pty Ltd v Minister for Community Services (1987) 17 FCR 407)
that it is "open to the Minister to formulate principles which require the taking into account of negative loadings
calculated in accordance with previous savings, and applying those negative loadings to a new proprietor which
bears the necessary degree of relationship to an earlier proprietor ... Here, the necessary degree of relationship is
readily to be found in the direct contractual connection between the applicant and the former proprietor."
- The Minister was not acting ultra vires in formulating principles which permitted such a method of recovery [copy
pp13-14]. The Act allowed this.

2.8 Mrs. Lamagna has taken no further legal action, stating that she cannot afford further action, being near
bankruptcy, and that no legal aid is available to her.

2.9 Mrs. Lamagna also made a complaint to the office of the Ombudsman which informed the Department in August
1994 that it believed the Department's administration had been defective and recommended a financial remedy be
provided for Mrs. Lamagna. The Department sought legal advice from the Attorney-General's Department which
advised that the Commonwealth was not legally liable in respect of the advice it had given. Accordingly, the
Department stated that there was nothing more it could do.

2.10 The Ombudsman's Office has subsequently completed a report on the investigation into the matter. The
Ombudsman makes several findings: that the legislation in force in 1991/92 was unreasonable, as evidenced by the
amendments made to it; that the Department's failure to inform Mrs. Lamagna of the validation process when she
consulted it prior to purchasing the nursing home was unreasonable; that the information circulated by the
Department did not refer to validations and did not tell intending purchasers of the possibility that the Department
might reduce the subsidy payable in consequence of overpayments it may have made to the vendor years before;
that, on the balance of probabilities, the Department informed Mrs. Lamagna incorrectly that it would recover any
overpayments from the vendor; that in relation to the earlier loading of A$94,912 the Department failed to inform the
author of the validation process so she could take adequate steps to protect herself; and that in relation to the second
loading, since the author was in fact aware that any loading found for that year would be recovered against the
subsidy payable, the Department could not be held responsible for the A$50,404 loading. The Ombudsman
accordingly made a recommendation that the Department pay Mrs. Lamagna A$94,912 plus interest charged on her
overdraft.

2.11 Following the failure of the Department to implement the recommendations of the Ombudsman the report was
passed to the Office of the Prime Minister and to the Cabinet. In the author's letter of 20.2.96 it appears that the
Cabinet has rejected the Ombudsman's recommendations in September 1995. However, a letter from the Office of
the Prime Minister, dated 6.2.96, to the Ombudsman, it states that the matter cannot be dealt with before the election
held in mid-March) and that work was being done by Departmental officers to prepare advice and an appropriate
response for the incoming Government. Mrs. Lamagna appears to have attempted communication with the new
Government (letter 21.3.96) though it is not apparent what response, if any, she has had. Her most recent
correspondence indicates that she has now had to close the nursing home and is living abroad.

The Complaint:

3. The author contends that the facts as described above are unfair, unreasonable and unjust treatment constituting a
discrimination and consequently a violation of the Covenant, without invoking any specific articles of the Covenant.

State party's observation's and author's comments thereon:

4.1 By submission of June 1997, the State party argues that the communication is inadmissible. It contends that the
author has provided no basis for her claim, that she has suffered any injustice within the meaning of the Covenant.

4.2 The State party argues that the communication should be declared inadmissible ratione personae on the grounds
that Mrs Lamagna as representative of Lamagna Enterprises Pty Limited, lacks standing before the Committee since
articles 1 and 2, of the Optional Protocol expressly limit the right to submit a communication to individuals. The state
party notes that the author is the proprietor of the Villa Magna Nursing Care Center. She is also a director of the
company Lamagna Enterprises Pty Limited which controls Villa Magna Nursing Care Centre. It contends that the
Australian Government's action under the National Health Act 1953 to recover overpayments was an action for
recovery against the company Lamagna Enterprises Pty Limited and not against the author as a private individual,
accordingly, the communication has not been submitted by the author as a private individual but as director of the
company Lamagna Enterprises Pty Limited, and should therefore be ruled inadmissible ratione personae, reference
is made to the Committee's jurisprudence in this respect See Communication 360/1989 (a newspaper publishing
company v. Trinidad and Tobago) and Communication No. 361/1989 (A publication and printing company v. Trinidad
and Tobago.).
4.3 The State party further argues that the communication should be ruled inadmissible ratione materiae under article
2, of the Optional Protocol on the grounds that the lawful exercise of a statutory power to recover an overpayment
from an incorporated company is not referable to any rights set forth in the Covenant and does not engage the
jurisdiction of the Committee.

4.4 Furthermore, the State party submits that, in essence, the author is asking the Committee to rule on whether the
National Health Act 1953 is compatible with the Covenant. It argues that it is the Committee's jurisprudence that
under the Optional Protocol the Committee cannot examine in abstracto the compatibility with the Covenant of laws
and practices of a State. It contends that in so far as the communication seeks to raise the compatibility of domestic
legislation with the Covenant the communication is inadmissible.

4.5 The State party finally argues that the communication is inadmissible ratione materiae under article 3, of the
Optional Protocol on the grounds that, in effect the author is seeking a review of the Federal Court's decision in
Lamagna Enterprises Pty Limited v. The Secretary of the Department of Community Service and Health. If Lamagna
Enterprises Pty Limited wishes to challenge the interpretation of the National Health Act 1953 the proper course of
action would be to investigate the possibility of an appeal to the Full Federal Court on a point of law. To the extent
that the author's claim relates to the Federal Court's interpretation of the National Health Act 1953, the author's claim
does not come within the competence of the Committee.

4.6 The State party concedes that the Federal Ombudsman recommenced that whilst the negative loadings were
valid under the National Health Act of 1953, they were unjust and unreasonable and the author should be refunded
for the amounts recovered. However, both the Minister for Finance and the Minister for Family Services, advised the
Prime Minister against compensation. It was on this advice that the Prime Minister acted when he informed the
Ombudsman's Office, accordingly, on 16 December 1996.

5. In a letter dated 3 October 1997, the author reiterated her claim of unjust and unfair treatment by the state
authorities since it was a governmental department which held the monopoly of the information in respect of nursing
homes that denied her the information that was later used against her by that same department to claim a debt of
over payment made to the previous owner of the nursing home.

Issues and proceedings before the Committee:

6.1 Before considering any claims contained in a communication, the Human Rights Committee must, in accordance
with rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the
Covenant.

6.2 The Committee notes the State party's contention that the communication should be declared in inadmissible
ratione personae. In this respect, it notes that the author has submitted the communication claiming to be a victim of
a violation of her rights under the Covenant, to be treated justly and fairly, because a governmental department
denied her information which it later used against her. However, the author who purchased the nursing as an
enterprise is essentially claiming before the Committee violations of the rights of her company, which has its own
legal personality. All domestic remedies referred to in the present case were in fact brought before the Courts in the
name of the company, and not of the author, furthermore the author has not substantiated that her rights under the
Covenant have been violated. Under article 1, of the Optional Protocol only individuals may submit a communication
to the Human Rights Committee. See communication No. 502/1992, (Sharif Mohamed v. Barbados), Inadmissibility
Decision, adopted on 31 March 1994. The Committee considers that the author, by claiming violations of her
company's rights, which are not protected by the Covenant has no standing within the meaning of article 1, of the
Optional Protocol, in respect of the complaint related to her company and that no claim related to the author
personally has been substantiated for purposes of article 2 of the Optional Protocol.

7. The Human Rights Committee therefore decides:

(a) that the communication is inadmissible under articles 1 and 2 of the Optional Protocol;

(b) that this decision shall be communicated to the State party, and to the author.
State Responsibility

Private Actors

11. Osman v UK (2009), EHRR 245.

The application of the exclusionary rule formulated by the House of Lords in Hill v Chief Constable of West Yorkshire
Police ([1989] AC 53) as a watertight defence to a civil action against the police, constituted a disproportionate
restriction on their right of access to a court in breach of article 6.1 of the European Convention on Human Rights.

However, the European Court of Human Rights held by 17 votes to 3 that there had been no violation of articles 2
(right to life) and 8 (right to private life) of the Convention.

Article 2 provides: "1 Everyone's right to life shall be protected by law..."

Article 6.1 provides: "In the determination of his civil rights ... everyone is entitled to a hearing by an independent and
impartial tribunal established by law."

Article 8 provides: "1 Everyone has the right to respect for his private and family life, his home and his
correspondence. "2 There shall be no interference by a public authority with the exercise of this right except such as
is in accordance with the law and is necessary in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others."

Mrs Mulkiye Osman was born in Cyprus in 1948 and her son, Ahmet Osman, was born in England in 1972. Both
applicants lived in London. Mrs Osman was married to Mr Ali Osman, who was killed on March 7, 1988 by her son's
former teacher. Her son was seriously wounded in the same incident.

In 1987 when Ahmet Osman, then aged 14, was a pupil at Homerton House School, Hackney, London, one of the
teachers, Mr Paul Paget-Lewis, formed a disturbing attachment to him.

That first came to the attention of the school authorities early in March 1987, when, following a complaint by the
mother of another pupil, it emerged that Mr Paget-Lewis had given Ahmet money, taken photographs of him and
followed him home. A police officer visited the school on several occasions between March 3 and 17, 1987 but no
further action was taken then by the police.

Ahmet's father, Mr Ali Osman, asked the headmaster to have Ahmet transferred to another school. While trying to
arrange the transfer, it was discovered that the files relating to Ahmet and to staff disciplinary matters had been stolen
from the school office. Graffiti of a sexual nature referring to Ahmet appeared around the neighbourhood.

Mr Paget-Lewis was questioned by the school but denied any involvement. On April 14, 1987 Mr Paget-Lewis
changed his name by deed poll to Paul Ahmet Yildirim Osman. The headmaster spoke to the police again on 4 May
1987, but there is a dispute as to how much information was passed to them.

Mr Paget-Lewis was examined on three occasions by a psychiatrist from the education authority between May 19,
1987 and June 16, 1987. The psychiatrist concluded that Mr Paget-Lewis was not mentally ill but his transfer from the
school on medical grounds was urgently recommended.

He was suspended from teaching duties on June 18, 1987 pending an investigation by the education authority into
his unprofessional conduct towards Ahmet Osman.

Between May and October 1987 a number of attacks were made on the Osmans' property: a brick was thrown
through a window of their house, the tyres of Mr Osman's car were slashed and the windscreen smashed, paraffin
and dog excrement were applied to their doorstep.

Following each of those incidents they complained to the police. In October or December 1987 a police officer
interviewed Mr Paget-Lewis, who had by then been permitted to resume teaching duties at another school.
In December, he was again questioned following an incident when he drove his car into a van containing a former
schoolfriend of Ahmet of whom he was jealous. On December 15 he was interviewed at his own request by officers
from the education authority, to whom he admitted that he felt totally self-destructive, blamed the deputy headmaster,
Mr Perkins, and was thinking of doing a "Hungerford" (an indiscriminate mass killing carried out in the town of
Hungerford). The police were informed and took some measures to protect the deputy headmaster.

On December 17, 1987 police arrived at Mr Paget-Lewis' home with the intention of arresting him on suspicion of
causing criminal damage to the Osmans' property.

He was not at home because he was teaching. The education authorities were requested to ask him to contact the
police, but from the following day onwards he did not turn up for work.

Between January and March 1988, Paget-Lewis travelled around England, hiring cars under his adopted name of
Osman and periodically returning to his home address. On January 17 he stole a gun from a car parked outside a
clay-pigeon shoot, but that information did not come to the attention of the police in charge of his case because there
was nothing to connect him with the theft.

On March 7, 1988 he went to the Osmans' home where he shot and killed Ali Osman and shot and injured Ahmet. He
then drove to the home of the deputy headmaster, whom he shot and injured, also shooting and killing his son.

On October 28, 1988, Paget-Lewis was convicted of two charges of manslaughter, having pleaded guilty on the
ground of diminished responsibility. He was sentenced to be detained in a secure mental hospital.

On September 28, 1989 the applicants commenced a civil action in negligence against the police. On August 19,
1991 the Metropolitan Police Commissioner issued a summons requesting that the statement of claim be struck out
because it disclosed no reasonable cause of action.

That application was dismissed by the High Court, but upheld by the Court of Appeal on October 7, 1992 (Osman and
Another v Ferguson and Another ([1993] All ER 344), on the ground that according to the 1989 ruling of the House of
Lords in the case of Hill v Chief Constable of West Yorkshire no action could lie for public policy reasons against the
police for their negligence in the investigation and suppression of crime.

In their application to the European Commission of Human Rights, lodged on November 10, 1993, the applicants
complained that there had been a failure to protect the lives of Ali and Ahmet Osman and to protect the family from
harassment, contrary to articles 2 and 8 of the Convention, and that they had been denied access to a court or to any
other effective remedy in respect of that failure, contrary to articles 6.1 and 13. Their application was declared
admissible on May 17, 1996.

Having attempted unsuccessfully to secure a friendly settlement, the Commission adopted a report on July 1, 1997 in
which it established the facts and expressed the unanimous opinion that there had been no violation of article 2 (ten
votes to seven); that there had been a violation of article 6 (twelve votes to five); that there had been no violation of
article 8 (ten votes to seven) and that no separate issue arose under article 13 (twelve votes to five). The
Commission referred the case to the Court on September 22, 1997.

In its judgment, the European Court of Human Rights held as follows:

The applicants complained that the authorities of the respondent State had failed to take adequate and appropriate
steps to protect the lives of the second applicant, Ahmet Osman, and his father, Ali Osman, from the real and known
danger which Paget-Lewis posed and that the decision of the Court of Appeal to dismiss their negligence action
against the police for reasons of public policy amounted to a restriction on their right of access to a court and a denial
of the only effective remedy available to them in the circumstances.
I Alleged violation of article 2

1 As to the facts of the case

The Court observed at the outset that it would assess whether the facts of the case disclosed a violation of article 2 of
the Convention in the light of all the material placed before it by the applicants and by the Government or, if
necessary, material obtained of its own motion.

2 As to the alleged failure of the authorities to protect the right to life of Ali and Ahmet Osman

The Court noted that it was not disputed that article 2 of the Convention might in well defined circumstances imply a
positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at
risk from the criminal acts of another individual.

As to the scope of that obligation, which was contested, the Court considered that, bearing in mind the difficulties
involved in policing modern societies, the unpredictability of human conduct and the operational choices which must
be made in terms of priorities and resources, any such obligation had to be interpreted in a way which did not impose
an impossible or disproportionate burden on the authorities.

Accodingly, for the Court not every claimed risk to life could entail for the authorities a Convention requirement to take
operational measures to prevent that risk from materialising.

Another consideration seen by the Court as relevant was the need to ensure that the police exercised their powers to
control and prevent crime in a manner which fully respected the due process and other guarantees which legitimately
placed restraints on the scope of their action to investigate crime and bring offenders to justice.

The Court considered that where there was an allegation that the authorities had violated their positive obligation to
protect the right to life in the context of their duty to prevent and suppress offences against the person it must be
established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real
and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that
they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to
avoid that risk.

The Court expressed the opinion that it was sufficient in that regard for an applicant to show that the authorities did
not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they had or
ought to have knowledge, a question which could only be answered in the light of all the circumstances of any
particular case.

Against the background of the above statement of principles, the Court examined the particular circumstances of the
instant case.

It observed that the concerns of the school about Paget-Lewis' disturbing attachment to Ahmet Osman could be
reasonably considered to have been communicated to the police over the course of the meetings which took place
between March 3 and May 4, 1987 and that it could reasonably be accepted also that the police were informed of all
relevant connected matters which had come to light by May 4, 1987 including the graffiti incident, the theft of the
school files and Paget-Lewis' change of name.

The Court was not persuaded however that the police's failure to investigate further Paget-Lewis' alleged involvement
in the theft of the school files and in the graffiti incident could be impugned from the standpoint of article 2 having
regard to the state of their knowledge at that time.

It was significant that Paget-Lewis had always denied any responsibility for those acts, even when questioned by the
police after the tragic shooting incident.

While Paget-Lewis' attachment to Ahmet Osman could be judged by the police officers who visited the school to be
most reprehensible from a professional point of view, there was never any suggestion that Ahmet Osman was at risk
sexually from him, less so that his life was in danger.
Accordingly, at that juncture, the police's appreciation of the situation and their decision to treat it as a matter internal
to the school could not be considered unreasonable.

While the applicants had attached particular weight to Paget-Lewis' mental condition and in particular to his potential
to turn violent and to direct that violence at Ahmet Osman, the Court for its part noted that Paget-Lewis continued to
teach at the school up until June 1987 and that he had been examined on three occasions by a psychiatrist who was
satisfied that he was not mentally ill.

The Court considered that if it had appeared to a professional psychiatrist that Paget-Lewis did not at the time display
any signs of mental illness or a propensity to violence it would be unreasonable to have expected the police to have
construed the actions of Paget-Lewis as they were reported to them by the school as those of a mentally disturbed
and highly dangerous individual.

In assessing the level of knowledge which could be imputed to the police at the relevant time, the Court also had
close regard to the series of acts of vandalism against the Osmans' home and property between May and November
1987.

It observed first that none of those incidents could be described as life-threatening and second there was no evidence
pointing to the involvement of Paget-Lewis, it being noted that he had denied responsibility when interviewed by the
police.

Even it were to be assumed that the applicants were correct in their assertions that the police did not keep records of
the reported incidents of vandalism and of their meetings with the school, ILEA officials and Paget-Lewis, that failing
could not be said to have prevented them from apprehending at an earlier stage any real threat to the lives of the
Osman family or that the irrationality of Paget-Lewis' behaviour concealed a deadly disposition.

The Court noted in that regard that when the decision was finally taken to arrest Paget-Lewis it was not based on any
perceived risk to the lives of the Osman family but on his suspected involvement in acts of minor criminal damage.

The Court also examined carefully the strength of the applicants' arguments that Paget-Lewis on occasions
communicated to the police, either directly or indirectly, his murderous intentions.

However, in its view, his statements could not be reasonably considered to imply that the Osman family were the
target of his threats and to put the police on notice of such.

For example, as to Paget-Lewis' alleged threat to "do a sort of Hungerford" it would appear more likely that his words
were uttered with respect to the deputy headmaster, Mr Perkins, whom he regarded as principally to blame for being
forced to leave his teaching post at Homerton House.

Moreover, Ahmet Osman was not a passenger in the car which the applicants claimed Paget-Lewis had deliberately
rammed in December 1987.

Having carefully examined the facts of the case, the Court concluded that the applicants had failed to point to any
decisive stage in the sequence of the events leading up to the tragic shooting when it could be said that the police
knew or ought to have known that the lives of the Osman family were at real and immediate risk from Paget-Lewis.

While the applicants had pointed to a series of missed opportunities which would have enabled the police to
neutralise the threat posed by Paget-Lewis, for example by searching his home for evidence to link him with the
graffiti incident or by having him detained under the Mental Health Act 1983 or by taking more active investigative
steps following his disappearance, it could not be said in the Court's view that those measures, judged reasonably,
would in fact have produced that result or that a domestic court would have convicted him or ordered his detention in
a pyschiatric hospital on the basis of the evidence adduced before it.

p>The Court repeated its earlier view that the police had to discharge their duties in a manner which was compatible
with the rights and freedoms of individuals.

In the circumstances of the present case, they could not be criticised for attaching weight to the presumption of
innocence or failing to use powers of arrest, search and seizure having regard to their reasonably held view that they
lacked at relevant times the required standard of suspicion to use those powers or that any action taken would in fact
have produced concrete results. For those reasons the Court concluded, Judges De Meyer, Lopes Rocha and
Casadevall dissenting, that there had been no violation of article 2 of the Convention in the circumstances of the
case.

II Alleged violation of article 8 of the Convention

The applicants complained in particular that the failure of the police to secure the personal safety and physical
integrity of Ahmet Osman engaged the responsibility of the authorities under article 8.

The Court did not accept that contention. It considered that the reasons which led it to conclude that the authorities
had not breached their positive obligation under article 2 of the Convention to secure Ahmet's right to life equally
supported a finding that there had been no violation of any implied positive obligation under article 8 to safeguard his
physical integrity against the threat posed by Paget-Lewis

As to the applicants' separate contention that the police failed to investigate the attacks on their home and bring to an
end the campaign of harassment being waged against them by Paget-Lewis, the Court reiterated its view that the
police had questioned Paget-Lewis about the allegations made against him.

However, there was no evidence to implicate him in the attacks. Accordingly, the responsibility of the authorities could
not be engaged under article 8 on this account either.

Judges De Meyer, Lopes Rocha and Casadevall dissented on that point.

III Alleged violation of article 6 of the Convention

1 Applicability of article 6.1

The Court did not accept the Government's argument that the applicants could not rely on article 6 of the Convention
given that the Court of Appeal in application of the exclusionary rule established by the House of Lords in the Hill
case dismissed their civil action as showing no cause of action.

It observed that the common law of the respondent state had long accorded a plaintiff the right to submit to a court a
claim in negligence against a defendant and to request that court to find that the facts of the case disclosed a breach
of a duty of care owed by the defendant to the plaintiff which had caused harm to the latter.

The domestic court's inquiry was directed at determining whether the constituent elements of a duty of care had been
satisfied, namely: whether the damage was foreseeable; whether there existed a relationship of proximity between
the parties; and whether it was fair, just and reasonable to impose a duty of care in the circumstances.

The Court noted that the latter criterion was invoked by the House of Lords for the first time in the Hill case to shield
the police from liability in the context of the investigation and suppression of crime.

Although the applicants had argued in terms which suggested that the exclusionary rule operated as an absolute
immunity to negligence actions against the police in the context at issue, the Court accepted the Government's
contention that the rule did not automatically doom to failure such a civil action from the outset but in principle allowed
a domestic court to make a considered assessment on the basis of the arguments before it as to whether a particular
case was or was not suitable for the application of the rule.

On that understanding the Court considered that the applicants must be taken to have had a right, derived from the
law of negligence, to seek an adjudication on the admissibility and merits of an arguable claim that they were in a
relationship of proximity to the police, that the harm caused was foreseeable and that in the circumstances it was fair,
just and reasonable not to apply the exclusionary rule outlined in the Hill case.

In the view of the Court the assertion of that right by the applicants was in itself sufficient to ensure the applicability of
article 6.1 of the Convention.
2 Compliance with article 6.1

The Court noted that the applicants' claim never fully proceeded to trial in that there was never any determination on
its merits nor on the facts on which it was based.

The applicants' claim was rejected by the Court of Appeal since it was found to fall squarely within the scope of the
exclusionary rule formulated by the House of Lords in the Hill case.

While observing that the aim of such a rule might be accepted as legitimate in terms of the Convention, as being
directed to the maintenance of the effectiveness of the police service and hence to the prevention of disorder or
crime, the Court stressed that, in turning to the issue of proportionality, it must have particular regard to its scope and
especially its application in the case at issue.

It appeared to the Court that in the instant case the Court of Appeal proceeded on the basis that the rule provided a
watertight defence to the police.

It further observed that the application of the rule in that manner without further inquiry into the existence of
competing public interest considerations only served to confer a blanket immunity on the police for their acts and
omissions during the investigation and suppression of crime and amounted to an unjustifiable restriction on an
applicant's right to have a determination on the merits of his or her claim against the police in deserving cases.

In its view, it must be open to a domestic court to have regard to the presence of other public interest considerations
which pull in the opposite direction to the application of the rule.

Failing that, there will be no distinction made between degrees of negligence or of harm suffered or any consideration
of the justice of a particular case.

The Court noted that in the instant case, Lord Justice McCowan in the Court of Appeal appeared to be satisfied that
the applicants, unlike the plaintiff Hill, had complied with the proximity test, a threshold requirement which was in itself
sufficiently rigid to narrow considerably the number of negligence cases against the police which could proceed to
trial.

Furthermore, the applicants' case involved the alleged failure to protect the life of a child and their view that that
failure was the result of a catalogue of acts and omissions which amounted to grave negligence as opposed to minor
acts of incompetence. The applicants also claimed that the police had assumed responsibility for their safety. Finally,
the harm sustained was of the most serious nature.

For the Court, these were considerations which must be examined on the merits and not automatically excluded by
the application of a rule which amounted to the grant of an immunity to the police.

The Court did not accept either the Government's plea that the applicants had available to them alternative routes for
securing compensation which mitigated their inability to take a negligence action against the police, for example a
civil action against Paget-Lewis or the psychiatrist who had examined the latter and found him not be mentally ill.

In its opinion neither course of action would have enabled them to secure answers to the basic question which
underpinned their civil action, namely why did the police not take action sooner to prevent Paget-Lewis from exacting
a deadly retribution against Ali and Ahmet Osman?

While they might or might not have failed to convince the domestic court that the police were negligent in the
circumstances, they were nevertheless entitled to have the police account for their actions and omissions in
adversarial proceedings. For the above reasons, the Court concluded unanimously that the application of the
exclusionary rule in the instant case constituted a sproportionate restriction on the applicants' right of access to a
court and for that reason there had been a violation of article 6.1 of the Convention.
IV Alleged violation of article 13 of the Convention

The Court ruled that it was not necessary to examine the applicants' complaints under this provision, which
guarantees an effective remedy before a national authority, having regard to its finding of a violation of article 6 of the
Convention.

V Application of article 50 of the Convention

The Court awarded the applicants £10,000 each to compensate them for their loss of opportunity to have their case
considered on the merits by a court.

A specified amount was also awarded in part compensation of the legal costs and expenses they incurred in bringing
their case to Strasbourg.
12. A v UK, (1999) 27 EHRR 611, 624.

Facts

A, a nine year old boy, was discovered to have numerous bruises following an examination by a paediatrician, which
indicated that A had been beaten with a garden cane on more than one occasion with considerable force. A's
stepfather, F, was charged under the Offences Against the Person Act 1861 section 47 with assault occasioning
actual bodily harm. At trial, F successfully claimed the English law defence that A's beating was reasonable
chastisement and was acquitted. A took the case to the European Court of Human Rights.

Issue

A claimed the English law relating to lawful chastisement failed to protect him, in violation of the European
Convention on Human Rights 1950 (ECHR) Article 3, which states that

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Held

The beating of A was of sufficient severity to amount to inhuman or degrading treatment under Article 3. Sufficient
severity for Article 3 of the ECHR to apply depends on the circumstances of the case including the nature and context
and physical and mental effects of the ill treatment, its duration, and the victim's age, sex and state of health. The UK
Government had violated Article 3 by failing to provide adequate protection for children under the English law of
chastisement. Article 1 read with Article 3 of the ECHR had to be read as imposing a positive obligation on
contracting states to ensure the protection of those within their jurisdiction and prevent suffering from torture or
inhuman or degrading treatment or punishment, especially in relation to children.
Other States

13. Soering v UK, (1989) 11 EHRR 439

Introduction

Soering v United Kingdom (1989)1 concerns Articles 3, 6 and 13 of the European Convention on Human Rights
(ECHR) 1950 and the potential extradition to the USA by the UK of a West German national to face trial in Virginia,
USA on a murder charge. Soering argued that if he were found guilty of murder and sentenced to death, that he
would experience 'death row-phenomenon' which would lead to the violation of his Convention rights.

Issues

The Soering case raises the issue of non-refoulement, which engages state responsibility by the act of removal of an
individual to a state where he or she will be exposed to a certain degree of risk of having her or his human rights
violated.2 The decision in Soering affirms the extraterritorial applicability of human rights guarantees within the ECHR
as well as the absolution prohibition against torture under Article 3.

Facts

Jens Soering is a German national, who at the time of the alleged offence was a student at the University of Virginia.3
He and his girlfriend were wanted in Bedford County, Virginia, USA for the murder of his girlfriend's parents. The
couple disappeared from Virginia in October 1985, and were later arrested in England in April 1968 in connection with
cheque fraud.4 Soering was interviewed by Bedford County police in the UK, which led to his indictment on charges
of capital murder and non-capital murder. The USA commenced extradition proceedings with the UK under the terms
of the Extradition Treaty of 1972, between the USA and UK.5 Mr Soering applied to the European Court on Human
Rights (ECtHRs) alleging the breach of Article 3, Article 6 and Article 13 ECHR.

The Decision of the ECtHRs

Article 3 - Soering alleged that the decision of the secretary of state for the home department to surrender him to the
US would, if implemented give rise to a breach of Article 3 ECHR. Article 3 provides: that "No one shall be subjected
to torture or to inhuman or degrading treatment or punishment".6 The breach of Article 3 is linked to the treatment the
applicant argued he would receive if he were to be detained on death row in Virginia for an expected six to eight
years.7 The ECtHR accordingly found the UK to be in breach of Article 3.

Article 6 - Soering alleged that the lack of legal aid in Virginia and the failure of the English Magistrates court to
consider his psychiatric condition amounted to a breach of the right to a fair trial. The ECtHR found they had no
jurisdiction to consider this matter.8

Article 13 - Soering further argued that he had no effective remedy in the UK with respect to his complaint under
Article 3. The ECtHR found there to be no breach of Article 13; since Mr Soering had the opportunity to bring judicial
review proceedings at the appropriate time within UK law.9

Analysis

The ECtHR in defining torture, inhuman or degrading treatment under Article 3 ECHR, argued that ill-treatment must
attain a minimum level of severity to fall within the scope of Article 3. This depends upon the circumstances of the
case and context of the treatment or punishment, the manner and method of its execution, its duration and physical
or mental effects.10 The Soering doctrine is narrowly construed.11 Central to the ECtHRs reasoning was the 'serious
and irreparable nature of the alleged suffering'.12 Soering is part of the courts extensive jurisprudence in support of
the rights of prisoners.13 Furthermore, it first established the principle that a Member State can be in breach of a
Convention right merely by expelling an individual to a state in which he or she would face a breach of a Convention
right.14 The UK itself did not need to carry out any acts of torture, inhuman or degrading treatment to be in breach of
Article 3, they merely need to place Soering at the 'real risk' of being subject to treatment in breach of Article 3. The
Soering decision effectively established a hard protection against extradition in Article 3 cases.15 This principle was
later extended to violations of Article 6 (fair trial),16 Article 13 (lack of effective remedy)17 and Protocol 4 (collective
expulsions).18 In Vilvarjah and Others v the United Kingdom,19 the ECtHR subsequently imposed certain limitations
upon extradition, requiring that 'a sufficiently clear causal link between the removal and any ill-treatment which might
have occurred'.

The Soering doctrine has proved particularly controversial in cases of suspected terrorism. In Chahal v UK,20
Karamjit Singh Chahal was a Sikh who illegally entered the UK in 1971. A general amnesty in 1974 permitted him to
stay in the UK. However, he was later arrested in connection with a conspiracy to kill the Indian Prime Minister and a
deportation order was made by the UK on the grounds of national security under section 3(5) Immigration Act 1971.
Chahal took his case to the ECtHR, alleging a real risk of a breach of his Article 3 rights if he was deported. The
majority of the ECtHR affirmed the absolute prohibition of torture, finding that if there is a substantial risk in
deportation cases that there would be a breach of Article 3, the deportee's status could not be a material
consideration.21 It has been suggested that the Chahal decision sometimes makes it difficult for governments to deal
with suspected terrorists.22 However, the decision was later affirmed by the ECtHR in Saadi v Italy,23 despite an
argument by the UK that Chahal had failed to give proper weight to the right to life under Article 2 ECHR. The ECtHR
once again reaffirmed the absolute nature of the prohibition on torture in rejecting these arguments.

The ECtHR has noted the absolute prohibition of Article 3 and distinguished this from cases in which other
Convention rights might be violated upon expulsion.24 Z and T v UK, 25concerned the case of two Pakistani
individuals who argued that upon the return to Pakistan, would not be 'able to live freely and openly as Christians',
arguing a potential breach of their freedom of to practice a religion under Article 9. In rejecting their application, the
ECtHR held that 'such compelling considertaion [as absoluteness]' does not automatically apply under the other
provisions of this Convention.26
14. Agiza v Sweden CAT/C/34/D/233/2003 (24 May 2005)

Facts:

The complainant, an Egyptian national, claims that his removal by Sweden to Egypt on 18 December 2001 violated
article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The complainant had been arrested in 1982 on account of his family connection, his cousin had been arrested for
suspected involvement in the assassination of the former Egyptian President, Anwar Sadat. The complainant was
released in 1983, completed his studies in 1986 and married Ms. Hannan Attia. In 1991 he left Egypt for Saudi
Arabia on security grounds. Thereafter he went to Pakistan where his wife and children joined him. In July 1995 the
family left for Syria under assumed Sudanese identities after the Egyptian embassy refused to renew their passports.

In 1998 the complainant was tried in Egypt for terrorist activities directed against the State before a “Superior Court
Martial” in absentia. Over one hundred other accused were tried as well. He was found guilty of belonging to a
terrorist group “Al Gihad” and was sentenced to 25 years imprisonment. In 2000 the family travelled to Stockholm
under Saudi Arabian identities and claimed asylum. He claimed that if he would be returned to Egypt he would be
executed as other accused in the same proceedings allegedly had been. The Migration Board sought the opinion of
the Swedish Security Police and held a “major enquiry” with the complainant. The security Police advised the
Migration Board that the complainant held a leading position in an organisation guilty of terrorist acts and was
responsible for the activities of the organisation. The Migration Board thus forwarded the case to the Government for
a strength of the decision under chapter 7, section 11(2)(2) of the Aliens Act. The Government rejected the asylum
applications on 18 December 2001. It was ordered that the complainant be deported immediately and his wife as
soon as possible. He was deported the same day while his wife went into hiding to avoid police custody. His parents
visited him on 23 January 2002 at Mazraat Tora prison outside Cairo. He allegedly told his mother that during the
eight hour flight to Egypt, he was bound by hands and foot. Upon arrival he was subjected to “advanced interrogation
methods” at the hand of Egyptian state security officers, who told him the guarantees provided by the Egyptian
Government concerning him were useless. His parents visited him again in April 2002. He then told his mother that
after the January visit electric shocks had been applied if he did not respond properly to orders. He also told his
parents that he was in solitary confinement, allowed to visit a toilet once a day and the cell was cold and dark.

The complaint and counsel´s arguments:

The counsel claimed that the reason that he lodged the complainant over one and a half years after the
complainant´s removal was that for a long period it was uncertain who was able to represent him. The Counsel also
added that it had been difficult to obtain the complainant´s personal consent to lodge a complaint.

The counsel argued that the complainant´s removal from to Egypt by Sweden violated his right under article 3 of the
Convention. Torture is a frequently used method of interrogation and punishment in Egypt, particularly in connection
with political and security measures. The complainant was at substantial risk of torture and in counsel´s view, the
State party must have been aware of the risk and sought to obtain a guarantee that his human rights would be
respected. The counsel also added that no arrangements had been made as to how the guarantees in question
would be implemented after the complainant´s return to Egypt.

Amnesty International expressed concerns about the complainant´s situation in communiqués. Furthermore, the
complainant´s Egyptian lawyer reached a conclusion after meeting with the complainant, that he had been tortured.
A correspondent for Swedish radio visited the complainant in prison and according to him, the complainant walked
with difficulty but he could not see any sign of torture. He asked him explicitly if he had been tortured, but the only
answer he got was that he could not comment.

The counsel concluded that the complainant´s ability to prove torture had been very limited. He had bee unable to
present a full statement of his experiences or corroborative evidence such as medical reports.
According to the council, the guarantee which was given by an Egyptian government official was obtained at short
notice, vague and provided no details on how it would be given effect. No arrangements had been made for
monitoring. After the complainant´s direct allegation of torture in March 2003 the Swedish authorities did not seek to
call any medical expertise.

In conclusion, the counsel invited the Committee to find that there was

(i) a violation by the State party of article 3 of the Convention at the time of the complainant´s expulsion, in the
light both of the information then available and of subsequent events, and

(ii) that he had been subjected to torture after removal.

The State party´s submissions on the admissibility and merits of the complaint:

The State regarded the complaint as

(i) inadmissible for the time elapsed since the exhaustion of domestic remedies,

(ii) as an abuse of process,

(iii) and as manifestly ill-founded.

The State party referred to the six month limit applicable to cases submitted to the European Court of Human Rights.
It also argued that the principle of legal certainty must be considered as one of the fundamental principles in the
international legal order. The time elapsed since exhaustion of domestic remedies was unreasonably prolonged and
the complaint was inadmissible pursuant to article 22, paragraph 2 of the Convention and Rule 107 of the
Committee´s Rules.

The State argued abuse of process. The factual bases of the current complaint were the same as that submitted on
his wife´s behalf. The Committee had already dealt with the very issue raised by the present complaint. The issue
should accordingly be considered res judicata.

The State recalled UN Security Council Resolution 1373 of 28 September 2001 which enjoins all UN Member States
to deny safe haven to those who finance, plan, support or commit terrorist acts, or themselves provide safe haven.

A Guarantee was provided by the Egyptian authorities to the Swedish government, that the complainant would not be
a victim of torture if returned to Egypt. The guarantees were issued by a senior representative of the Egyptian
government. In Aylor-Davis v. France it was held that guarantees from the receiving country were found to eliminate
the risk of the applicant being sentenced to death. The case law suggested that guarantees may be accepted where
the authorities of the receiving State can be assumed to have control of the situation. Judging from the numerous
reports provided by the Swedish ambassador, embassy staff and others, the guarantees provided did prove to
effective and allegations of torture had not been substantiated. The complainant had on numerous occasions
confirmed to the Swedish Ambassador that he had not been tortured or ill-treated.
The Committee´s admissibility decision:

The Committee decided that the complaint was admissible.

The two complaints (Agiza´s and his wife) related to different persons, one already removed from the State party´s
jurisdiction and the other still within its jurisdiction pending removal. The complaints were thus not of an essentially
identical nature.

The timing of submission might have been inconvenient, but since the State party had ready access to the relevant
factual submissions and necessary argumentation, the Committee rejected the State party´s argument that the
complaint was inadmissible due to the time elapsed.

The Committee found that the claim of finding that torture had in fact occurred, would amount to a conclusion that
Egypt had breached its obligations under the Convention without it having had an opportunity to present its position.
The separate claim against Egypt was thus inadmissible. The Committee considered that the complainant had
presented a sufficiently arguable case with respect to Sweden for it to be determined on the merits.

Conclusion:

Assessment under article 3:

Whether the removal of the complainant to Egypt violated the State party´s obligation under article 3 has to be
decided in the light of the information that was known at the time of the removal. The aim is to establish whether the
individual concerned was personally at risk of being subjected to torture in the country to which he was returned. The
existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such
constitute a sufficient ground for determining that a particular person was in danger of being subjected to torture;
additional grounds must exist to show that the individual concerned was personally at risk.

The State party´s authorities should have known at the time of the complainant´s removal that Egypt resorted to
consistent and widespread use of torture against detainees. Risk of such treatment was particularly high in the case
of detainees held for political and security reasons. The State party´s own security intelligence services regarded the
complainant as implicated in terrorist activities and a threat to its national security and therefore the decision was
made at the highest executive level. The Committee´s view was that the complainant was at a real risk of torture in
Egypt in the event of expulsion.

Procedural assessment under article 3:

Normally, the State party provides for review of a decision to expel satisfying the requirements of article 3 of an
effective, independent and impartial review of a decision to expel. In this case however, the decision was taken by the
Government without any possibility for review of any kind. The Committee therefore concludes that the absence of
any avenue of judicial or independent administrative review of the Government´s decision to expel the complainant
does not meet the procedural obligation required by article 3 of the Convention.

The Committee also addressed the failure of the State party to co-operate fully with the Committee and thus
breaching the obligations under the Convention set forth in article 22.

The facts constituted breaches by the State party of article 3 and 22 of the Convention.

Separate Opinion of Committee Member Mr. Alexander Yakovlev (dissenting, in part)

Disagreed with the majority´s finding on the article 3 issues.

15. Othman (Abu Qatada) v UK, (2012) 55 EHRR 1

Introduction

States are often faced with the problem of how to deal with individuals who are a risk to national security as well as
terrorist suspects specifically when they cannot be deported to their home country due to the risk of torture or ill
treatment. In order to get around this dilemma, governments have increasing sought to secure diplomatic assurances
from states that the individual who will be deported with receive a fair trial and not be subjected to ill treatment[1].

Case law prior to Othman v United Kingdom

In Soering, the Court of the ECHR considered that the appellant's deportation to the US would expose him to ill
treatment beyond the threshold set by Article 3 of the ECHR[2] , In Chahal[3], the grand Chamber confirmed:

Whenever substantial grounds have been shown for believing that an individual would face a real risk of being
subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to
safeguard him or her against such treatment is engaged in the event of expulsion.[4]

The significance of this case law is that it shows that even when an individual is considered a risk to national security,
the UK Government prefers to prosecute them as opposed to deportation when there is a grave risk of ill treatment or
torture.[5]

The facts in Othman v United Kingdom

The applicant, O, was born in Jordan and claimed that it would be a breach of his rights under the ECHR if the UK
deported him to Jordan. O resisted deportation under Articles 2, 3, 5 and 6 of the ECHR. O had been successful in
gaining UK asylum, a year after arriving in the UK in 1993. The charges against O was received in absentia in Jordan
and related to conspiracy to cause explosions. O stated that the evidence connected with these convictions were
extracted from his co-defendants through torture, there was compelling evidence in support of this claim. It was the
UK Government's understanding that the ECHR[6] excluded deporting terrorist suspects to Jordan and a
memorandum of understanding was negotiated with Jordan. Jordan assured the UK that the treatment of deportees
would be consistent with the Convention. The UK ordered the deportation of O.

The Appellant made an application to Special Immigration Appeals Commission (SIAC) and the Court of Appeal who
allowed O's appeal on the grounds of Article 6[7] . However in a further appeal to the House of Lords[8], O's
complaints were rejected and O made a further appeal to the Strasbourg Court who concluded that there was no;

Violation of Article 3 of the ECHR.

Violation Article 3 of the ECHR, in unification with Article 13 of the ECHR.

Violation of Article 5 of the ECHR.

But it would violate Article 6 of the ECHR due to the real risk of the submission of evidence, at the Applicant's re-trial,
deduced by the torture of witnesses[9].

The Court stressed how strict the flagrant denial of justice test is and the burden is on the appellant to prove that by
deporting them from one state to another, it would result in a real risk of a denial of justice[10]. The Court went on to
find that O had fulfilled his burden and deportation would result in a breach of Article 6[11].
Issues and outcome

Extensive negotiations occurred between the UK and Jordanian government were Jordan declared that any retrial
that took place would be fair. These promises were deemed as insufficient by the Special Immigration Appeals
Commission and the Court of Appeal with the latter stating, 'Torture is universally abhorred is an evil. A state cannot
compel a person to another state where there is a real risk that he will be tried on the basis of evidence which there is
a real possibility may have been obtained by torture'.[12]

A treaty between the UK and Jordan was formed and approved by legislature and the appellant agreed to be
deported.[13]

Following Othman v United Kingdom

In contrast to Soering, Othman successfully fulfils a high threshold in relation to violations of a fair trial. Following
Othman, in the case of El Haski v Belgium[14] it was determined by the ECtHR that deportation to Morocco would be
a breach of Article 6. It was suspected that the evidence used against the applicant had been attained by methods
contrary to Article 3.[15] By reverting back to diplomatic assurances that were prevalent in the case of Othman, it
gave the court the opportunity to disregard any breach of Article 3. This may possibly have been, a method of
preventing the judgment being criticised for restrictions placed on the national security provisions of Member States
by the Strasbourg court.

Conclusion

This case is significant for a number of reasons the first of which being that it is amongst one of the latest cases were
the ECtHR has overturned a decision of the HL. The decision of the ECtHR to allow the deportation of the appellant
to Jordan on the basis of the assurances made, considerably weakens the principles behind Article 3 specifically
when assurances are sought from states who have infringed their human rights obligations. In addition the
acceptance of such assurances appears to be a reflection of how the risk of ill treatment and torture can be
overlooked.