INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
SELECTED DECISIONS OF
THE HUMAN RIGHTS COMMITTEE under
THE OPTIONAL PROTOCOL
Volume 8
Seventy-fifth to eighty-fourth sessions (July 2002 – July 2005)
UNITED NATIONS New York and Geneva, 2007
NOTE
The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries.
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Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a figure indicates a reference to a United Nations document.
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Material contained in this publication may be freely quoted or reprinted, provided credit is given and a copy of the publication containing the reprinted material is sent to the Office of the United Nations High Commissioner for Human Rights, Palais des Nations, 8-14 avenue de la Paix, CH-1211 Geneva 10, Switzerland.
CCPR/C/OP/8
UNITED NATIONS PUBLICATION ISBN 978-92-1-154180-9
Sales No. E.07.XIV.11
CONTENTS
(Selected decisions—Seventy-fifth to eighty-fourth sessions)
Page
Introduction... 1
FINAL DECISIONS A. Decisions declaring a communication inadmissible (the number of the Committee session is indicated in brackets) N° 837/1998 [78] Janusz Kolanowski v. Poland... 3
N° 901/1999 [81] Laing; Deborah, Jessica and Samuel v. Australia ... 6
N° 939/2000 [83] Georges Dupuy v. Canada... 16
N° 989/2001 [78] Walter Kollar v. Austria ... 21
N° 1019/2001 [80] Barcáiztegui v. Spain... 27
N° 1024/2001 [80] Sanlés Sanlés v. Spain ... 35
N° 1138/2002 [80] Arenz et al. v. Germany... 39
N° 1220/2003 [84] Walter Hoffman and Gwen Simpson v. Canada ... 45
B. Views under article 5 (4) of the Optional Protocol N° 757/1997 [76] Alzbeta Pezoldova v. Czech Republic ... 51
N° 778/1997 [76] José Antonio Coronel et al. v. Colombia... 60
N° 781/1997 [78] Azer Aliev v. Ukraine ... 67
N° 811/1998 [81] Lallman and Bhartaj Mulai v. Guyana ... 72
N° 815/1998 [81] Alexander Dugin v. Russian Federation ... 75
N° 823/1998 [83] Czernin v. Czech Republic ... 79
N° 829/1998 [78] Judge v. Canada... 85
N° 836/1998 [77] Kestutis Gelazauskas v. Lithuania ... 101
N° 848/1999 [75] Miguel Ángel Rodríguez Orejuela v. Colombia ... 106
N° 854/1999 [75] Wackenheim v. France ... 110
N° 868/1999 [79] Wilson v. Philippines ... 114
N° 875/1999 [78] Jan Filipovich v. Lithuania ... 122
N° 879/1999 [84] George Howard v. Canada ... 126
N° 886/1999 [77] Natalia Schedko v. Belarus ... 136
N° 900/1999 [76] C. v. Australia... 141
N° 909/2000 [81] Victor Ivan Majuwana Kankanamge v. Sri Lanka ... 157
N° 910/2000 [79] Ati Antoine Randolph v. Togo ... 162
N° 916/2000 [75] Jayawardena v. Sri Lanka... 168
N° 926/2000 [80] Hak-Chul Shin v. Republic of Korea ... 172
N° 931/2000 [82] Raihon Hudoyberganova v. Uzbekistan ... 176
N° 932/2000 [75] Marie-Hélène Gillot v. France ... 180
N° 933/2000 [78] 68 magistrates v. Democratic Republic of the Congo ... 194
N° 943/2000 [81] Guido Jakobs v. Belgium ... 198
N° 950/2000 [78] Sarma v. Sri Lanka ... 210
N° 960/2000 [78] Baumgarten v. Germany... 218
N° 981/2001 [78] Gómez Casafranca v. Peru ... 228
N° 983/2001 [77] Love et al. v. Australia ... 232
N° 986/2001 [78] Semey v. Spain ... 242
N° 1002/2001 [80] Wallmann v. Austria... 250
N° 1011/2001 [81] Madaferri v. Australia ... 259
N° 1015/2001 [81] Perterer v. Austria... 273
N° 1023/2001 [83] Länsman III v. Finland ... 282
N° 1051/2002 [80] Mansour Ahani v. Canada ... 290
N° 1069/2002 [79] Bakhtiyari v. Australia ... 304
N° 1077/2002 [77] Carpo v. Philippines ... 316
N° 1080/2002 [80] David Michael Nicholas v. Australia ... 322
N° 1086/2002 [77] Sholam Weiss v. Austria ... 327
N° 1090/2002 [79] Tai Wairiki Rameka et al. v. New Zealand ... 336
N° 1095/2002 [84] Gomariz v. Spain... 350
N° 1096/2002 [79] Safarmo Kurbanova v. Tajikistan ... 355
N° 1107/2002 [82] Loubna El Ghar v. Libyan Arab Jamahiriya ... 360
N° 1119/2002 [84] Jeong-Eun Lee v. Republic of Korea ... 363
N° 1128/2002 [83] Rafael Marques de Morais v. Angola ... 366
N° 1134/2002 [83] Gorji-Dinka v. Cameroon... 374
N° 1136/2002 [82] Borzov v. Estonia ... 380
N° 1155/2003 [82] Leirvåg v. Norway... 385
N° 1189/2003 [83] Anthony Michael Emmanuel Fernando v. Sri Lanka ... 400
N° 1222/2003 [82] Byahurunga v. Denmark ... 406
ANNEX Summary of State Parties’ replies pursuant to the adoption of Views by the Human Rights Committee ... 415
INDEXES Index by article of the Covenant... 419
Index by article of the Optional Protocol... 422
Subject index... 423
Author and victim index ... 427
INTRODUCTION 1. The International Covenant on Civil and
Political Rights and the Optional Protocol thereto were adopted by the General Assembly on 16 December 1966 and entered into force on 23 March 1976.
2. In accordance with article 28 of the Covenant, the States parties established the Human Rights Committee on 20 September 1976.
3. Under the Optional Protocol, individuals who claim that any of their rights set forth in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Human Rights Committee for consideration. No communication can be received by the Committee if it concerns a State party to the Covenant that is not also a party to the Optional Protocol. As of 31 July 2005, 105 of the 149 States that had acceded to or ratified the Covenant had accepted the competence of the Committee to receive and consider individual complaints by ratifying or acceding to the Optional Protocol.
4. Under the terms of the Optional Protocol, the Committee may consider a communication only if certain conditions of admissibility are satisfied.
These conditions are set out in articles 1, 2, 3 and 5 of the Optional Protocol and restated in rule 96 of the Committee’s rules of procedure (CCPR/C/3/Rev.8), pursuant to which the Committee shall ascertain:
(a) That the communication is not anonymous and that it emanates from an individual, or individuals, subject to the jurisdiction of a State party to the Protocol;
(b) That the individual claims, in a manner sufficiently substantiated, to be a victim of a violation by that State party of any of the rights set forth in the Covenant. Normally, the communication should be submitted by the individual himself or by his representative; a communication submitted on behalf of an alleged victim may, however, be accepted when it appears that he is unable to submit the communication himself;
(c) That the communication is not an abuse of the right to submit a communication under the Protocol;
(d) That the communication is not incompatible with the provisions of the Covenant;
(e) That the same matter is not being examined under another procedure of international investigation or settlement;
(f) That the individual has exhausted all available domestic remedies.
5. Under rule 92 (old rule 86) of its rules of procedure, the Committee may, prior to the forwarding of its final Views on a communication, inform the State party of whether “interim measures”
of protection are desirable to avoid irreparable damage to the victim of the alleged violation. The request for interim measures, however, does not imply the determination of the merits of the communication. The Committee has requested such interim measures in a number of cases, for example where the carrying out of a death sentence or the expulsion or extradition of a person appeared to be imminent. Pursuant to rule 94 (2), the Committee may deal jointly with two or more communications, if deemed appropriate.
6. With respect to the question of burden of proof, the Committee has established that such burden cannot rest alone on the author of a communication, especially in view of the fact that the author and the State party do not always have equal access to the evidence and that the State party frequently has sole possession of the relevant information. It is implicit in article 4 (2) of the Optional Protocol that the State party has a duty to investigate in good faith all allegations of violations of the Covenant made against it and its authorities.
7. The Committee started work under the Optional Protocol at its second session in 1977.
From then until its eighty-fourth session in July 2005, 1414 communications relating to alleged violations by 78 States parties were placed before it for consideration. By the end of July 2005, the status of these communications was as follows:
(a) Concluded by adoption of Views under article 5 (4) of the Optional
Protocol ... 500 (b) Declared inadmissible ... 394 (c) Discontinued or withdrawn ... 193 (d) Declared admissible but not yet
concluded ... 7 (e) Pending at pre-admissibility stage ... 320 8. Since 1976, the Committee received many more than the 1414 registered communications mentioned above. The Secretariat regularly receives inquiries from individuals who intend to submit a communication to the Committee. Such inquiries are
number of authors who eventually submit cases for consideration by the Committee under the Optional Protocol is relatively small, partly because the authors discover that their cases do not satisfy certain basic criteria of admissibility, such as the required exhaustion of domestic remedies, and partly because they realize that a reservation or a declaration by the State party concerned may operate to preclude the Committee’s competence to consider the case. These observations notwithstanding, the number of communications placed before the Committee is increasing steadily, and the Committee’s work is becoming better known to lawyers, researchers and the general public. The purpose of the Selected Decisions series is to contribute to the dissemination of its work.
9. The first step towards wider dissemination of the Committee’s work was the decision taken during the seventh session to publish its Views: publication was desirable in the interests of the most effective exercise of the Committee’s functions under the Protocol, and publication in full was preferable to the publication of brief summaries. From the Annual Report of the Human Rights Committee in 1979 up to the 2005 report incorporating the eighty-fourth session in July 2005, all of the Committee’s Views and decisions declaring communications inadmissible, have been published in full.
10. At its fifteenth session, the Committee decided to proceed with a separate project, the periodical publication of a selection of its decisions under the Optional Protocol, including certain important decisions declaring communications admissible and other decisions of an interlocutory nature. Volume 1 of this series, covering decisions taken from the second to the sixteenth session inclusive, was published in 1985 in English.1 Volume 2 covers decisions taken from the seventeenth to the thirty-second session and includes all decisions declaring communications admissible, two interim decisions requesting additional information from the author and State party, and two decisions under rule 86 of the Committee’s rules of procedure, requesting interim measures of
1 Human Rights Committee, Selected Decisions under the Optional Protocol (Second to sixteenth sessions), New York, 1985 (United Nations publication, Sales No. E.84.XIV.2), hereinafter referred to as Selected Decisions, vol.1.
For a detailed overview of the Committee’s jurisprudence under the Optional Protocol, see Manfred Nowak: ICCPR Commentary, 2nd edition (Engel Verlag, 2005).
decisions adopted from the thirty-third to thirty-ninth sessions, Volume 4 a selection of decisions adopted from the fortieth to the forty-sixth sessions, Volume 5 covers sessions forty-seven to fifty-five, Volume 6 covers sessions fifty-six to sixty-five and Volume 7 covers sessions sixty-six to seventy-four.
11. During the period covered by the present volume, there has been once again a significant increase in the number of communications submitted to the Committee. The Special Rapporteur for New Communications of the Committee, whose mandate had been amended in 1991 to cope with the increasing caseload, has continued to further review and finetune his working methods. During the period covered by the present volume, the Special Rapporteur requested interim measures of protection in cases.
12. So as to enable it to cope with an increasing number of registered cases and in order to avoid a growing backlog of pending cases, the Committee, during its eighty-third session, authorized the Working Group on Communications to adopt decisions declaring communications inadmissible if all members so agree. At its eighty-fourth session (July 2005), the Committee introduced the following rule 93(3) in its rules of procedure: “A working group established under rule 95, paragraph 1, of these rules of procedure may decide to declare a communication inadmissible, when it is composed of at least five members and all members so agree. The decision will be transmitted to the Committee plenary, which may confirm it and adopt it without further discussion. If any Committee member requests a plenary discussion, the plenary will examine the communication and take a decision.”
13. The Special Rapporteur on Follow-Up on Views also continued to review his working methods during the period covered by the present volume.
In 1997, his mandate was formally reviewed, and changes to the mandate incorporated into the Committee’s rules of procedure. Under the revised follow-up procedure, the Committee no longer considers follow-up information on a confidential basis but in public session. Follow-up missions by the Special Rapporteur have also been suggested to States parties.
14. As in the past, there has been a steady increase in the number of individual opinions appended by members of the Committee to decisions on admissibility or final Views (rule 104 of the rules of procedure). It is noteworthy that many members have appended joint individual opinions, whether concurring or dissenting. Readers will find numerous examples of this practice in the present volume.
FINAL DECISIONS
A. Decisions declaring a communication inadmissible
Communication No. 837/1998
Submitted by: Janusz Kolanowski Alleged victim: The author State party: Poland
Declared inadmissible: 6 August 2003
Subject matter: Absence of judicial control over decisions about police promotions
Procedural issues: Incompatibility ratione materiae and ratione temporis - Level of substantiation of claim
Substantive issues: Interpretation of notion of “suit at law”
Articles of the Covenant: 14, paragraph 1; 26 Articles of the Optional Protocol: 2; 3
1. The author of the communication is Janusz Kolanowski, a Polish citizen, born on 13 July 1949.
He claims to be a victim of a violation by Poland1 of articles 14, paragraph 1, and 26 of the International Covenant on Civil and Political Rights (the Covenant). He is not represented by counsel.
The facts as submitted
2.1 The author has been employed in the Polish police (formerly the Civic Militia) since 1973. In 1975, he completed the School for Non- commissioned Officers of the Police in Pila. He obtained a doctoral degree in “Sciences of Physical Culture” in 1991.
2.2 On 7 January 1991, the author requested the Chief Commander of the Police to appoint him to the rank of officer in the police. His request was denied on 22 February 1991, since he lacked the required
“officer” training to be appointed to that rank. The author appealed this decision before the Minister of Internal Affairs, arguing that article 50, paragraph 1, of the Police Act (PA) only required professional
1 The Covenant and the Optional Protocol to the Covenant entered into force for the State party respectively on 18 June 1977 and 7 February 1992.
training rather than officer’s training for policemen with a higher education degree.
2.3 On 24 April 1991, the author had a conversation with the Under-Secretary of State in the Ministry of Internal Affairs concerning his appointment to the higher rank. In a memorandum reflecting the conversation, the Under-Secretary of State expressed his approval for the author’s appointment to the rank of an aspirant, a transitional rank between that of non-commissioned officers and the rank of officer. However, this approval was annulled by the Chief Commander of the Police on 20 August 1991, on the basis that the author’s appointment to the “aspirant rank” by means of an exceptional procedure was unjustified.
2.4 By letter of 26 August 1991 to the General Commander of the Police in Warsaw, the author appealed the rejection of his appointment. On 28 August 1991, he sent a similar complaint to the Under-Secretary of State in the Ministry of Internal Affairs. In his response, dated 16 September 1991, the General Commander of the Police once again informed the author that he did not have the required officer’s training. On 29 June 1994, the Minister of Internal Affairs refused to institute proceedings with respect to the rejection of the author’s appointment to the aspirant rank, which was not considered an administrative decision within the meaning of article 104 of the Code of Administrative Procedure (CAP).
2.5 On 25 August 1994, the Ministry of Internal Affairs rejected another motion of the author for appointment to the aspirant rank dated 19 July 1994.
After the author had unsuccessfully filed an objection to this decision with the Ministry of Internal Affairs, he lodged a complaint with the High Administrative Court in Warsaw on 6 December 1994, challenging the non-delivery of an administrative decision on his appointment. On 27 January 1995, the Court dismissed the complaint, as the refusal to appoint the author to the higher rank was not an administrative decision.
2.6 By letter of 1 March 1995 addressed to the High Administrative Court, the author complained that the Court had failed to give the reasons and the legal provisions on which its decision to dismiss his complaint was based. This motion was rejected by the Court on 14 March 1995. The author subsequently sent a letter to the Minister of Justice, accusing the judges who had decided on his complaint of “perversion of justice”. On 30 March 1995, the President of the High Administrative Court, to whom the letter had been forwarded by the Ministry of Justice, informed the author that, while no grounds existed for reopening his case, he was free to lodge an extraordinary appeal against the Court’s decision of 27 January 1995.
2.7 On 11 July 1995, the author requested the Polish Ombudsman to lodge an extraordinary appeal with the Supreme Court, with a view to quashing the decision of the High Administrative Court. By letter of 28 August 1995, the Ombudsman’s Office informed the author that its competence to lodge an extraordinary appeal was limited to alleged violations of citizens’ rights and was subsidiary in that it required a prior unsuccessful request to an organ with primary competence to lodge an extraordinary appeal with the Supreme Court. The Ombudsman denied the author’s request, since it failed to meet these requirements.
2.8 The author then asked the Ombudsman to forward his request to the Minister of Justice. On 13 November 1995, he sent a copy of the request to lodge an extraordinary appeal with the Supreme Court to the Minister of Justice, in the absence of any reaction from the Ombudsman. At the same time, he requested reinstatement to the previous condition, arguing that the expiry of the six-month deadline to appeal the Court’s decision of 27 January 1995 could not be attributed to any failure on his part. On 20 February 1996, the Ministry of Justice denied the request to lodge an extraordinary appeal, since the six-month deadline had already expired at the time of the submission of the request (16 November 1995) and because there was no basis for the Minister to act, as the case raised no issues affecting the interests of the Republic of Poland.
2.9 On 4 March 1996, the author asked the Ombudsman to reconsider his request to submit an extraordinary request to the Supreme Court, arguing that the delay in handling his first request of 11 July 1995 had caused the expiry of the six-month deadline. In subsequent letters, he reiterated doubts over the legality of the examination of his complaint by the High Administrative Court. In his reply, dated 2 September 1996, the Ombudsman rejected the request. He warned the author that his accusations against the judges of the High Administrative Court might be interpreted as constituting a criminal offence.
2.10 In parallel proceedings, the author had been dismissed from police service in 1992, but was reinstated following a decision of the High Administrative Court of 18 August 1993, declaring the dismissal null and void. In 1995, he was dismissed a second time from police service. By decision of 8 May 1996, the High Administrative Court upheld the dismissal, apparently because the author had failed to comply with service discipline.
Appeal proceedings against this decision were still pending at the time of the submission of the communication.
The complaint
3.1 The author claims to be a victim of violations of articles 14, paragraph 1, and 26 of the Covenant, as he was denied access to the courts, on the basis that the refusal to appoint him to the rank of an aspirant was not regarded as an administrative decision and therefore not subject to review by the High Administrative Court.
3.2 He argues that his complaint against the refusal of appointment and the non-delivery of an administrative decision involves a determination of his rights and obligations in a suit at law, since article 14, paragraph 1, must be interpreted broadly in that regard. Moreover, he claims that the bias shown by the judges of the High Administrative Court and the fact that he was deprived of the possibility to lodge an extraordinary appeal with the Supreme Court, either through the Minister of Justice or the Ombudsman, since the Ombudsman’s Office had failed to process his request in a timely manner, constitute further violations of article 14, paragraph 1.
3.3 The author contends that the delivery of administrative decisions is required in similar situations, such as in cases of deprivation or lowering of military ranks of professional soldiers or when an academic degree is granted by the faculty council of a university. Since soldiers and academic candidates can appeal such decisions before the courts, the fact that such a remedy was not available to him is said to constitute a violation of article 26.
3.4 The author claims that he has exhausted domestic remedies and that the same matter is not being examined under another procedure of international investigation or settlement.
State party’s submission on the admissibility and merits of the communication
4.1 By note verbale of 22 June 1999, the State party submitted its observations on the communication, challenging both admissibility and merits. While not contesting exhaustion of domestic remedies, it submits that the communication should
be declared inadmissible ratione temporis, insofar as it relates to events which took place before the entry into force of the Optional Protocol for the State party on 7 February 1992.
4.2 Moreover, the State party considers the author’s claim under article 26 of the Covenant inadmissible for lack of substantiation. In particular, any comparison between the deprivation and lowering of military ranks of professional soldiers, which is made in form of an administrative decision, under paragraph 1 of the Ordinance of the Minister of Defence of 27 July 1992, and (internal) decisions taken under the provisions of the Police Act is inadmissible, given the limited application of paragraph 1 of the Ordinance to exceptional cases only. Similarly, no parallel can be drawn to the granting of an academic degree by administrative decision, a matter which is different from the refusal to appoint someone to a higher service rank.
4.3 The State party submits that the delivery of administrative decisions is subject to the existence of legislative provisions which require the administrative organ to issue such a decision. For example, the delivery of an administrative decision is explicitly required for the establishment, alteration or termination of labour relationships in the Bureau of State Protection (UOP).2 However, this rule only applies to appointments and not the refusal to appoint UOP officers to higher service ranks. A landmark judgment of 7 January 1992 of the Constitutional Court holds that the provisions of the Border Guard Act of 12 October 1990, which exclude the right to trial in cases about service relationships of Border Guard officers, are incompatible with arts. 14 and 26 of the Covenant.
The State party argues that this ruling is irrelevant to the author’s case, since the contested provisions of the Border Guard Act concerned external service relationships, which are subject to special legislation requiring the delivery of an administrative decision.
4.4 With regard to the alleged violation of article 14, paragraph 1, of the Covenant, the State party submits that every national legal order distinguishes between acts which remain within the internal competence of administrative organs and acts which extend beyond this sphere. The refusal to appoint the author to the rank of an ‘aspirant’ is of purely internal administrative character, reflecting his subordination to his superiors. As internal acts, decisions concerning appointment to or refusal to appoint someone to a higher service rank cannot be appealed before the courts, but only before the
2 See paragraph 33 of the Ordinance of the Prime Minister of 10 January 1998 concerning the service of officers of the UOP.
superior organs to which the decision-making organ is accountable.
4.5 The State party emphasizes that article 14, paragraph 1, guarantees the right of everyone to a fair trial in the determination of his or her rights and obligations in a suit at law. Since this provision essentially relates to the determination of civil rights and obligations, the present case falls outside the scope of article 14, paragraph 1, being of purely administrative character. Moreover, the State party argues that the author’s complaint against the refusal to appoint him to a higher service rank bears no relation to the determination of a right, in the absence of an entitlement of policemen or other members of the uniformed services to request such appointment as of right.
Author’s comments
5.1 By letter of 15 November 1999, the author responded to the State party’s observations. He contends that the relevant events took place after the entry into force of the Optional Protocol for Poland on 7 February 1992, without substantiating his contention.
5.2 The author insists that the refusal to appoint him to the rank of an aspirant constituted an administrative decision, citing several provisions of administrative law he considers pertinent. He argues that there is no basis in Polish law which would empower State organs to issue internal decisions. By reference to article 14, paragraph 2, of the Police Act, the author submits that it follows from the subordination of the Chief Commander of the Police to the Minister of Internal Affairs that the Chief Commander was obliged to follow the “order” of the Under-Secretary of State in the Ministry of Internal Affairs to appoint him to the higher service rank.
The refusal to appoint him to that rank was also illegal in substance, since he fulfilled all legal requirements for such appointment.
5.3 With regard to the State party’s argument that his claim under article 26 is unsubstantiated, the author submits that, even though the special provisions concerning the deprivation and lowering of military ranks of professional soldiers and the granting of academic degrees, which are made by administrative decision, are not applicable to his case, the legislation precluding policemen from appealing decisions on their appointment or non-appointment to a higher service rank is in itself discriminatory.
Issues and proceedings before the Committee
6.1 Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not the communication is
admissible under the Optional Protocol to the Covenant.
6.2 The Committee has ascertained that the same matter is not being and has not been examined under another procedure of international investigation or settlement for purposes of article 5, paragraph 2 (a) of the Optional Protocol, and that the author has exhausted domestic remedies, in accordance with article 5, paragraph 2 (b), of the Optional Protocol.
6.3 The Committee takes note of the State party’s argument that the communication is inadmissible insofar as it relates to events which took place before the entry into force of the Optional Protocol for Poland on 7 February 1992. Under its established jurisprudence, the Committee cannot consider alleged violations of the Covenant which occurred before the entry into force of the Optional Protocol for the State party, unless the violations complained of continue after the entry into force of the Optional Protocol. The Committee notes that the author first requested to be promoted in 1991, i.e. prior to the entry into force of the Optional Protocol in respect of the State party. Although the author continued after the entry into force of the Optional Protocol with proceedings to contest a negative decision to his request, the Committee considers that these proceedings in themselves do not constitute any potential violation of the Covenant. However, the Committee notes that subsequent to the entry into force of the Optional Protocol in respect of the State party the author initiated a second set of proceedings aiming at his promotion (see paragraph 2.5) and that any claims related to these proceedings are not inadmissible ratione temporis.
6.4 As to the author’s claims under article 14, paragraph 1, the Committee notes that they relate to the author’s efforts to contest a negative decision on his request to be promoted to a higher rank. The author was neither dismissed nor did he apply for any specific vacant post of a higher rank. In these circumstances the Committee considers that the author’s case must be distinguished from the case of Casanovas v. France, communication 441/1990.
Reiterating its view that the concept of "suit at law"
under article 14, paragraph 1, is based on the nature of the right in question rather than on the status of one of the parties, the Committee considers that the procedures initiated by the author to contest a negative decision on his own request to be promoted within the Polish police did not constitute the determination of rights and obligations in a suit at law, within the meaning of article 14, paragraph 1, of the Covenant. Consequently, this part of the communication is incompatible with that provision and inadmissible under article 3 of the Optional Protocol.
6.5 In relation to the alleged violations of article 26, the Committee considers that the author has failed to substantiate, for purposes of admissibility, any claim of a potential violation of article 26.
Consequently, this part of the communication is inadmissible under article 2 of the Optional Protocol.
7. The Committee therefore decides:
(a) That the communication is inadmissible under articles 2 and 3 of the Optional Protocol;
(b) That this decision shall be communicated to the author, and, for information, to the State party.
Communication No. 901/1999
Submitted by: Deborah Joy Laing (represented by Gavan Griffith)
Alleged victims: Deborah Joy Laing, Jessica Joy Surgeon and Samuel Colin John Surgeon State party: Australia
Declared inadmissible: 9 July 2004 (eighty-first session)
Subject matter: Family separation - Child custody Procedural Issues: Substantiation of claims
Substantive Issues: Effective remedy - Cruel treatment - Liberty of movement and right to enter one’s country - Fair trial - Interference with family life - Protection the family - Protection of minor
Articles of the Covenant: 2, paragraph 3; 7; 12, paragraphs 1 and 4; 14, paragraph 1; 17; 23, paragraph 1; 24, paragraph 1; and 26
Article of the Optional Protocol: 2
1. The author of the communication dated 30 November 1999, is Ms. Deborah Joy Laing (Ms. Laing). She submits the communication on behalf of herself and her two children Jessica Joy Surgeon and Samuel Surgeon. She claims that she is victim of violations by Australia1 of articles 2, paragraph 3; 7; 14, paragraph 1; 17; 23, paragraph 1;
and 26, of the International Covenant on Civil and
1 The Optional Protocol entered into force for Australia on 25 September 1991.
Political Rights (the Covenant); that Jessica is victim of violations of articles 2, paragraph 3; 7; 12, paragraphs 1 and 4; 14, paragraph 1; 17; 23, paragraph 1; and 24, paragraph 1; and that Samuel is victim of violations of articles 2, paragraph 3; 7; 17, paragraph 1; 23, paragraph 1; and 24, paragraph 1, of the Covenant. They are represented by counsel.
1.2 On 10 December 1999, the Special Rapporteur on New Communications and Interim Measures rejected the author’s request for interim measures.
The facts as submitted
2.1 Ms. Laing married Lance Lynn Surgeon on 30 March 1991. Jessica was born on 9 November 1993, in the United States; she holds both Australian and American citizenship. The marriage disintegrated, and on 12 March 1994, Ms. Laing and Jessica, with Mr. Surgeon’s consent, travelled to Australia where they remained until November 1994. They returned to the US upon request from Mr. Surgeon, who had suffered a heart attack in the meanwhile.
2.2 On 12 January 1995, Ms. Laing and Jessica left the matrimonial home in the US for Australia without the knowledge of Mr. Surgeon. On 17 January 1995, he filed an action for divorce in Georgia Superior court. On 27 February 1995, the Court ordered Jessica's return to the State of Georgia, US. In April and May 1995, the Georgia Superior Court heard a Rule Nisi application of Mr. Surgeon ex parte, without Ms. Laing’s attendance, and ordered the dissolution of the marriage. It awarded the father "sole permanent custody" of Jessica, with no visitation rights for Ms. Laing until further order by a court of competent jurisdiction.
2.3 On 5 June 1995, Mr. Surgeon filed an application under the Hague Convention on the Civil Aspects of Child Abduction (the Hague Convention) to the US Central Authority. That application was communicated to the Australian Central Authority, which initiated proceedings in the Family Court on 28 June 1995, seeking an order that Mr. Surgeon be permitted to remove Jessica from Australia to the US. The Central Authority’s application was listed for hearing on 5 September 1995, but the hearing dates were vacated and proceedings adjourned. On 22 September 1995, Ms. Laing’s and Mr. Surgeon’s son Samuel was born in Australia.
2.4 The application was heard before Justice O’Ryan in the Family Court of Australia on 2 and 5 February 1996. On 20 February 1996, he ordered that Jessica be returned to her father in the US.
Ms. Laing appealed to the Full Court of the Family Court, requesting that new evidence be heard. The
appeal was heard on 3 and 4 July 1996. The Full Court refused to receive the new evidence, and dismissed the appeal on 10 October 1996.
2.5 Following the dismissal of the appeal, Ms. Laing went into hiding with her two children.
They were located on 9 January 1998 and detained.
2.6 On 9 April 1998, Ms. Laing lodged an application for leave to appeal to the High Court of Australia. The High Court refused the application on 7 August 1998 as Ms. Laing had not appealed within the statutory time-limit.
2.7 Ms. Laing then returned to the Full Court of the Family Court, and requested a re-opening of the case. The Full Court of the Family Court reconstituted as a bench of five, heard the application to re-open the case on 27 and 28 August and 14 September, and dismissed the application on 9 February 1999, by a 3-2 majority.
2.8 At this point, Ms. Laing only had two remaining options; (a) to seek appeal to the High Court again, or (b) to apply to the Family Court and request that the Court issue a certificate to enable her to appeal to the High Court. The Family Court had issued only three such certificates since 1975; a certificate would only be issued if the case involves an important question of law or is of public interest.
On 24 April 1999, the Family Court issued a certificate allowing the author to appeal again to the High Court, on the ground that the Full Court of the Family Court should re-open its decision to allow the application to be determined by reference to the proper and applicable law. Up to this point, Ms. Laing was not offered legal aid. However, she received a limited grant of legal aid for the appeal to the High Court. The High Court hearing started on 7 October 1999, on its final day on 18 November 1999, it dismissed the appeal without giving reasons.
Ms. Laing therefore claims that domestic remedies have been exhausted.
2.9 From 1994, Ms. Laing has written letters and sent photographs and other information about the children to the father in the US. She contends that he has shown no interest in the children, nor made any financial contribution for their maintenance, or visited them in Australia, or maintained telephone contact with them over the years.
The complaint
3.1 Ms. Laing claims that in violation of article 2, paragraph 3 of the Covenant, she does not have an adequate and effective remedy, since the Covenant is not incorporated into Australian domestic law in a manner which would enable her to enforce these rights. She submits that the Covenant is not part of Australian law and hence it has no legal effect upon
the rights and duties of individuals.2 While she has raised issues under the Covenant in her appeal to the High Court, she has not been provided with the Court’s reasons in relation to this aspect of her appeal.
3.2 Ms. Laing claims that the forcible removal of her daughter Jessica, whom she would not see for many years, violates her rights under article 7.
Neither she nor her son has the right to enter the US, nor, given the current court orders, is there any possibility of their visiting Jessica, even if they were able to enter the US. Ms. Laing has no means to pursue any further judicial action. She submits that such separation of a mother from her small child in the present circumstances amounts to cruel treatment in violation of article 7.
3.3 Ms. Laing claims that she was denied a fair trial, in violation of article 14, first in that the Family Court applied the incorrect law in its decision to remove Jessica from her custody. In the application to the Family Court in 1998 to re-consider the first appeal judgement, a majority of 3 judges, acknowledged that the first appeal court had applied the incorrect law, yet refused to re-open the matter.
At the level of the High Court, it was conceded by all parties that the trial judge and the first full court had applied the incorrect law. However, on 18 November 1999, the High Court dismissed the appeal without giving reasons.
3.4 Secondly, Ms. Laing submits that the High Court did not provide reasons for its decision, in violation of article 14, paragraph 1. While the High Court decision implies that the removal orders for Jessica have immediate effect, the High Court indicated that the reasons for its decision would be provided later, thus leaving Ms. Laing without knowledge as to why the appeal failed before Jessica’s return to the US.
3.5 It is further claimed that in view of the delays in resolving the proceedings concerning Jessica, any interference of the authors’ home cannot not be said to be reasonable in terms of article 17, when measured against the irreparable damage and consequences to the authors’ family.
3.6 Ms. Laing claims that the removal of Jessica from her family impairs her enjoyment of family life, in violation of article 23, paragraph 1, in particular as the resolution of the case was seriously delayed.
3.7 She finally argues a violation of her rights under article 26, in that, while by operation of the Hague Convention the father's court costs in
2 Minister for Immigration and Ethnic Affairs v. Teoh (1995) 183 CLR 273, at page 287 of supporting documentation.
Australia were paid, no equivalent assistance was paid to the author. This is particularly serious, given that the divorce judgement granted the father all matrimonial property.
3.8 On behalf of Jessica, it is claimed that in violation of article 2, paragraph 3 of the Covenant, she does not have an effective remedy, since the Covenant is not incorporated into Australian domestic law in a manner which would enable her to assert her Covenant rights. She submits that the Covenant has no legal effect upon the rights and duties of individuals or governments, and refers in this context to an Australian court case and to the Attorney-General’s submission in the High Court proceedings in the present case.3 Also, Jessica has not been able to present any submissions or arguments about her interests. While the Family Court appointed a separate representative for her, he could not play an active role in the proceedings, since he could not participate at the separate court hearing of Jessica.
3.9 It is claimed that Jessica will suffer severe psychological damage if she were to be removed from the only family she has known and the source of her emotional, physical and social wellbeing, as well as her school friends. Returning her to her father, who has played no active role in her life, and to a place where there are no arrangements in place for her immediate care nor schooling, would amount to cruel treatment, in violation of article 7 of the Covenant.
3.10 Jessica, as she is lawfully within Australian territory, she has a right, under article 12, paragraph 1 and 4, to remain in the country. If she were to be returned to the US, this right would be violated.
3.11 It is claimed that Jessica was denied a fair trial, in violation of article 14. First, she was denied the right to participate in the proceedings regarding her own rights and to challenge the decision to remove her from Australia. The inability to have her interests determined separately and independently of her mother’s interests, has had a significant impact on Jessica’s ability to have the merits of her case considered. For example, when the Second Full Court of the Family Court judges refused to re-open the case, considering the mother’s default and conduct to be a determining factor against re- opening of the case, Jessica’s interest in having the case re-opened was not considered separately.
3.12 Secondly, she was denied a fair trial in that the Family Court judge applied the incorrect law when deciding that she was to be returned. Counsel
3 Minister for Immigration and Ethnic Affairs v. Teoh, and DJL v. The Central Authority, in the High Court proceedings of 7 October 1999, paragraph 48-50.
refers to the Convention on the Rights of the Child, which states that a child shall not be separated from his or her parents unless it is determined in accordance with applicable law and procedures that such separation is necessary for the best interest of the child. When Jessica’s mother’s final appeal to the High Court was dismissed, they were provided with no reasons for the decision.
3.13 The proposed forced removal of Jessica from her mother and brother would amount to arbitrary interference with her family and home, in violation of article 17 of the Covenant. Counsel refers to the Committee’s views in Toonen v. Australia.4 It is contended that the delays in resolving the proceedings regarding Jessica’s removal, entail that any interference with Jessica’s home could not be considered reasonable when measured against the irreparable damage and consequences to her family.
There is allegedly no legal avenue for Jessica to seek protection against this interference.
3.14 Finally, it is claimed, on behalf of Jessica, that the application of the Hague Convention in this case did not properly address the best interests of the child, which amounted to a violation of articles 23, paragraph 1, and 24, paragraph 1, of the Covenant.
The removal of Jessica from her family would impair with her right to enjoyment of family life, since the strict application of the Hague Convention, operates to affect her interest adversely when the application and removal have not been dealt with expeditiously – that is at least within a year. It is also argued that the denial of access to her mother and brother in the event of removal would constitute a breach of article 10, paragraph 2, of the Convention on the Rights of the Child, and of article 24, paragraph 1, of the Covenant.
3.15 As to Samuel's rights, it is contended that, in violation of article 2, paragraphs 3 (a) and (b), the State party failed to provide him with an effective remedy to assert Covenant rights, as the Covenant is not justifiable in Australian law. Moreover, in the proceedings affecting his interests in that he risked a permanent separation from his sister, he was not able to participate. He has no independent standing in legal proceedings.
3.16 It is also claimed that Samuel's rights under article 7 would be violated, in that his sister’s removal from the family would break the close bond between the two children and cause mental suffering to Samuel.
3.17 Jessica's imminent removal from her family, would amount to an arbitrary interference with Samuel’s family and home, contrary to article 17.
4 Communication No. 488/1992, Views adopted on 31 March 1994, paragraph 6.4.
3.18 It is argued that the removal of Jessica from her family would impair Samuel’s enjoyment of family life, since he has no right to enter and remain in the US or to visit his sister, and which would constitute a violation of articles 23 and 24 in this regard. Counsel submits that when determining a child’s right, the Committee may have regard to article 3 of the Convention on the Rights of the Child providing that the best interests of the child shall be a primary consideration in all actions concerning children. By failing to take any steps that would enable Samuel to protect his rights, the State party violated article 24, paragraph 1, of the Covenant.
State Party’s admissibility and merits submission 4.1 By note verbale of 8 February 2001, the State party made its submission on the admissibility and merits of the communication. It submits that the communication is inadmissible and that the Committee should dismiss it without consideration on the merits. In the alternative, should the Committee be of the view that the allegations are admissible; the State party submits that they should be dismissed as unfounded.
4.2 With regard to the authors’ article 2 claim, the State party submits that there were no violations of other Covenant articles, and therefore no issue of a violation under article 2 of the Covenant arises.
Consequently, this aspect of the communication should be dismissed as inadmissible. In any event, Australia does provide effective remedies for violations of Covenant rights. The provisions of international treaties to which Australia becomes a party do not become part of domestic law by virtue only of the formal acceptance of the treaty by Australia. This long-standing principle of Australian law was recognised by the High Court in Minister for Immigration and Ethnic Affairs v. Teoh.
Australia submits that there are sufficient remedies available to enable Ms. Laing, Jessica and Samuel to assert their rights under the Covenant.
4.3 With regard to the authors’ claim under article 7 that the return of Jessica to the US will result in her being forcibly removed from her mother and brother, causing mental suffering, the State party submits that the allegations are inadmissible ratione materiae, as there is no evidence of infliction of any such mental sufferance by Australia.
4.4 Firstly, Australia pursues the lawful objective of returning an abducted child to the country of habitual residence in accordance with the Hague Convention, and to have her custody determined by the relevant and competent court. Ms. Laing was ordered by the Family Court to return to the US as the proper forum to determine the issue of Jessica’s custody. This was a bona fide attempt by Australia
to give Jessica the opportunity to be reunited with her father and have the issue of custody finally determined. The actions of a State in fulfilling its obligations under international law cannot be interpreted as evidence of cruel, inhuman or degrading treatment.
4.5 Secondly, it is incorrect to assume that Jessica’s return to the US will conclusively result in her permanent removal from Australia, from Ms. Laing and from Samuel. There is a possibility that Jessica may be returned to her father, but this is a matter for US courts to determine. There is no evidence of the infliction of deliberate or aggravated treatment by Australia in violation of article 7 of the Covenant.
4.6 Thirdly, Ms. Laing claims that she and Samuel may not be allowed to enter and remain in the US.
The State party submits that this is irrelevant for the purposes of establishing aggravated or deliberate treatment by Australia, in violation of article 7 of the Covenant. In any event, the Full Court of the Family Court sought to ensure that Ms. Laing and her children are permitted to enter and remain in the US, by ordering that Mr. Surgeon support the visa application of Ms. Laing and refrain from prosecuting her for Jessica’s abduction.
4.7 Furthermore, while Australia concedes that Ms. Laing, Jessica and Samuel may suffer some degree of mental strain as a result of overseas travel or the court proceedings in the US, any such strain would not reach the severity of suffering required to find a violation of article 7. Australia therefore submits that the allegation of a breach of article 7 should be declared inadmissible as inconsistent with article 2 of the Optional Protocol.
4.8 In the alternative, the State party submits that the allegations ought to be dismissed as unfounded, since the applicants do not give any evidence of relevant treatment by Australia, nor that it would attain the minimum level of severity to constitute treatment in violation of article 7.
4.9 With regard to Ms. Laing’s allegation under article 7, the State party submits that these matters are yet to be determined and therefore it cannot reasonably be maintained that they show that any relevant treatment has been or will be inflicted on her.
Moreover, these matters will be determined by the US and cannot be regarded as deliberate treatment by Australia. In any event, there is no evidence to suggest that Ms. Laing would not be able to enter, or remain, in the US. The US recently extended the Public Benefit Parole category of visas to include abduction cases, as to allow an abducting parent to enter and remain in the US so as to be able to participate in court proceedings.
4.10 With regard to Jessica, the State party submits that it does not intend to harm her in any way by
returning her to the US. Australia’s actions therefore cannot constitute treatment relevant under article 7 of the Covenant. Moreover, the Full Court of the Family Court considered whether there was a grave risk that Jessica would be physically or psychologically harmed, or otherwise placed in an intolerable situation, as a result of her removal to the US. It considered a report by a child psychologist on this point, and found that the alleged abrupt and permanent separation from her mother would cause Jessica some distress, but that she could adapt to the change and a new carer.
4.11 Finally, it is submitted that Samuel’s allegation that he will be forcibly separated from his sister lacks merit for the reasons outlined in relation to admissibility of the claim.
4.12 The State party rejects Jessica’s claim under article 12 as inadmissible pursuant to article 1 of the Optional Protocol, for inconsistency with the Covenant requirements to protect the family and provide special protection to the child (articles 23 (1) and 24 (1) of the Covenant). It submits that Jessica’s allegation incorrectly interprets article 12 (1) of the Covenant as implying the right to remain in Australia.
However, the State party understands that article 12 (1) of the Covenant is concerned with the right to movement and residence within Australia. Jessica’s allegation therefore raises no issue under the Covenant, nor does it substantiate any claim under article 12.
4.13 The State party submits that should the Committee find sufficient evidence to demonstrate a restriction by Australia of the rights in article 12 (1) of the Covenant, such a restriction would fall within the scope of restrictions permitted by article 12 (3).
Jessica’s return is necessary for the maintenance of public order, that is, the prevention of child abduction and regulation of return arrangements.
Jessica’s return to the US is also in the interests of the protection of the family, consistent with article 23 (1) of the Covenant.
4.14 Furthermore, the State party submits that Jessica’s allegation of a breach of article 12 (4) of the Covenant is without merit, since it is prohibited from arbitrarily depriving Jessica of her right to enter Australia. The Full Court of the Family Court of Australia considered whether Jessica has the right to remain in Australia. It found that she does have this right but that it has to be balanced with other rights.
The judgement of the Full Court of the Family Court on 9 February 1998 found that to return Jessica to the US on application of the Hague Convention, would not affect her right, as an Australian citizen, to live in Australia. In any event, there is no reason advanced as to why her basic right to live in Australia is any more significant or worthy of protection than her basic right to not be wrongfully removed from the US.
4.15 With regard to the allegation that the Australian courts failed to determine the issue of Jessica’s return to the US fairly and in accordance with the proper law, the State party submits that the Full Court of the Family Court considered, in its appeal of 14 September 1998, that the lower court applied the wrong laws but that it did not affect the outcome of the case. This decision was subsequently reviewed by another sitting of the Full Court of the Family Court and the High Court. To the extent that Ms. Laing’s communication would require the Committee to assess the substantive, rather than the procedural of the decision of the High Court, the State party submits that this would require the Committee to exceed its proper functions under the Optional Protocol and that the allegations under article 14 are therefore incompatible with the Covenant. In this respect, it refers to the Committee’s decision in Maroufidou v. Sweden.5 Furthermore, it submits that the authors failed to provide sufficient evidence to substantiate a violation of that article of the Covenant, and in the alternative that the Committee should find the communication admissible, that it is without merits.
4.16 The State party submits that Jessica’s allegation of a violation of article 14, paragraph 1, for failure to ensure separate representation in the court proceedings, is inadmissible for failure to raise an issue under the Covenant, since she is no victim of a violation of the Covenant. It submits that while an application was made to the Family Court for a representation on Jessica’s behalf, it presented insufficient reasons for why a separate representation would be of benefit to her, taken into account that Australian courts consider the child’s interests to be of paramount importance. In the alternative, the communication should be dismissed as unfounded.
4.17 Finally, with regard to the allegation under article 14, paragraph 1, that no reasons were provided by the High Court, the State party submits that the reasons for the High Court decision were published on 13 April 2000; and this allegation therefore is unsubstantiated.
4.18 With regard to the authors’ allegation that Jessica’s return to the US is an arbitrary interference with the family and home by Australia, under article 17, the State party submits that the authors have not provided evidence of a violation, and thus fail to raise an issue under this provision. Moreover, they fail to demonstrate how they have been directly affected by the alleged lack of legal protection, and may therefore not be deemed victims of a Covenant violation.
5 Communication No. 58/1979, Views adopted on 9 April 1981, paragraph 10.1.
4.19 In the alternative that the Committee finds the claim under article 17 admissible, the State party finds that it is without merits, since Jessica is being returned to the US in accordance with Australia’s international obligations under the Hague Convention to have the issue of Jessica’s custody determined in the competent US Court. Accordingly, the intervention is in accordance with the law and not arbitrary.
4.20 The State party submits that the allegation that Jessica’s return to the US constitutes a violation of the obligation to protect the family under article 23 (1), is incompatible with this provision of the Covenant. It refers to the preamble to the Hague Convention, where the signatory States affirm that they are ‘firmly convinced that the interests of the child are of paramount importance in matters relating to their custody', and that the Hague Convention was drafted “to protect children internationally from the harmful effects of their wrongful removal or retention...” The fact that Australia is a party to this Convention is sufficient evidence of Australia’s commitment to a protection of the family and, indeed, the child.
4.21 The State party adds that article 23 (1) requires that Australia protect the family as an institution and that Ms. Laing, Jessica and Samuel fail to provide any evidence to substantiate a claim that it has violated this obligation. The authors’
allegation that applications for the return of a child made after one year are too late is deemed incorrect.
In any event, the application for the return of Jessica was made within one year. The State party submits that the authors fail to establish that they are victims of any breach of article 23 (1) of the Covenant, and that the return of Jessica to the US for her custody proceedings will take into account the rights of each family member.
4.22 On the merits, the State party submits that the courts’ decision to return Jessica protects the interests of the individual family members and the interests of the community as a whole in the protection of families. The Full Court of the Family Court specified that Jessica’s interests were of paramount importance, notwithstanding the unlawful actions of Ms. Laing. Jessica’s father is included in the definition of family under article 23 (1); the return of Jessica to the US to determine whether she will have access to her father is an active pursuit by Australia of the recognition of her right to enjoy family life.
4.23 On Jessica and Samuel’s claim under article 24 (1) of the Covenant, the State party submits that the object of the Hague Convention proceedings in Australia was to determine the proper forum and not the issues of custody of, and access to, Jessica. It reiterates that the underlying principle
of that Convention is the best interests of the child.
Moreover, the fact that the US Court may award custody to Jessica’s father is not evidence of a violation of article 24 (1) of the Covenant. In relation to child abduction hearings, the Full Court of the Family Court has determined that it is an abducted child’s best interests to be returned to its habitual country of residence and to have issues of custody and access determined by the courts of that country.
In the alternative that the Committee finds this claim admissible, the State party submits that it is unfounded.
4.24 The State party submits that Ms. Laing’s claim under article 26 is inadmissible ratione materiae on three grounds; firstly, she has no claim under article 1 of the Covenant because she has not submitted evidence to the effect that she suffered financial discrimination; secondly, she has not substantiated her claim; and thirdly, in the event that the Committee is satisfied that the author has shown a difference in the treatment of Ms. Laing and Jessica’s father based on one of the prohibited grounds in Article 26, it submits that there is a failure to substantiate the assumption that this differentiation was not reasonable and objective and that the aim was not to achieve a purpose which is legitimate under the Covenant.
4.25 In this respect, it submits that Ms. Laing received legal or financial assistance from the Australian authorities in respect of the Hague Convention proceedings in Australia. She was granted legal aid by the New South Wales Legal Aid Commission in respect of the original hearing of the Hague Convention application in 1996, and the proceedings in 1999 before the Full Court of the Family Court. She was also granted financial assistance in respect of her subsequent appeal to the High Court. No financial contribution was required from her towards the cost of these proceedings;
counsel had agreed to represent Ms. Laing in these proceedings on a pro bono basis, notwithstanding the provision of legal aid. In addition, the Full Court of the Family Court of Australia ordered on 9 April 1998, that Jessica’s father pay costs relating to their return to the US for Ms. Laing, Jessica and Samuel.
In the alternative that the Committee finds this claim admissible, the State party submits that it should be dismissed as unfounded.
Author’s comments
5.1 In his response of 23 April 2001 to the State party’s submission, counsel submits that the State party is mistaken when stating that the Australian courts considered Jessica’s interests to be of paramount importance. The operation of the Hague Convention and its implementing legislation, show that the child’s best interest is not taken into account.
Furthermore, he submits that the State party’s assumption that Jessica’s future custody remains to be finally determined by a US court lacks foundation, since there are final orders of an American court awarding permanent custody to Jessica’s father, with no visitation rights for the mother.
5.2 In respect of the State party’s allegation that article 2 is not an autonomous right, counsel submits that the jurisprudence of the Committee may be reversed at any time, in light of further arguments regarding consideration of another case, and that recent jurisprudence of the Committee reveals a shift in the application of article 2, paragraph 3 of the Covenant towards providing a freestanding right for individuals. Moreover, in view of the particular circumstances that Australia has no Bill of Rights, no uniform constitutional, statutory or common law protections, which reflect the Covenant, leaves the authors with no effective remedies to safeguard their rights.
5.3 In respect of the claim under article 7 of the Covenant, counsel submits that the salient issue is whether a certain treatment which a State party is responsible for has the effect of being cruel. She considers that the forced separation of Jessica from her family constitutes cruel treatment because it has the effect of imposing severe suffering on Jessica and her family. Furthermore, the question of whether the treatment of a child is cruel requires an assessment of the child’s particular circumstances, and in that regard a mere threat of such treatment is sufficient.
5.4 Counsel also submits that where the objectives of the Hague Convention for a speedy return of a child are not satisfied, the strict and inflexible application may be oppressive and unfair in certain circumstances. In the present case it took 13 months from the time of the unlawful removal until the first decision of an Australian court, and after 6 years, final resolution of the case remained outstanding.
5.5 Moreover, the psychiatric report submitted by the authors’ suggest that Jessica is sensitive to change and has difficulty with sleep and nightmares as a result of the temporary separation by police from her family in 1998. The State party has not challenged this evidence. Another report prepared for the Family Court when Jessica was 2 years old noted that “an abrupt and permanent separation from her mother would be associated with protest and extreme distress...” Counsel submits that mental distress may constitute cruel treatment.
5.6 In relation to the State party’s contention under article 12 of the Covenant, that Jessica has the right to be reunited with her father as a child and as an individual within a family, counsel submits that a
claim concerning a family life must be real and not hypothetical, like in the case of Jessica.
5.7 Counsel reiterates the claim of a violation of article 14, paragraph 1. The State party’s response that even if the proper law had been applied the result would have been the same, did not represent the view of second Full Court of the Family Court, but merely represents the view of one judge.
Moreover, the views of the Chief Justice and another judge of that court considered that in the light of the correct law, the result may not have been the same.
5.8 In relation to the State party’s contention that it is not the role of the Committee to review the facts, counsel acknowledges the Committee’s established jurisprudence, but contends that the application of an incorrect law and the failure to correct the error makes the decisions of Jessica’s removal “manifestly arbitrary”. He adds that the authors’ right to a fair trial includes a right to be provided with reasons at the time the orders were made.
5.9 In respect of the claim under article 17, counsel submits that interference with home in this case, is the interference with the authors’ family arrangements and home life, including the extended family.
5.10 In respect of the claim under article 23 of the Covenant, counsel notes that the ECHR has constantly held that article 8 of the Convention includes a right for the parent to have measures taken with a view to his or her being reunited with the child, and an obligation for the national authorities to take such action. In Jessica’s case, there are no family bonds between father and child, and the only family requiring protection is Jessica, Samuel, Ms. Laing, as well as the extended family in Australia,
5.11 With regard to the alleged discrimination of Ms. Laing, counsel submits that Mr. Surgeon was represented by the Central Authority, and that she only received a grant which covered a small proportion of the overall costs.
Supplementary submissions
6.1 On 3 September 2001, the State party submitted further comments. With regard to counsel’s contention that there is no factual foundation for Australia’s assertion that American courts may give Ms. Laing custody of, and access to, Jessica, it submits that the custody order in favour of Mr. Surgeon, may, under the Georgia Code, be challenged and subsequently changed by the Court if there is a material change in the circumstances.
6.2 Furthermore, in relation to the authors’ claim that Australia has no statutory or common law protections which reflect the terms of the Covenant,
the State party submits that both legislation and the common law protect the rights in the Covenant. For example, under the Human Rights and Equal Opportunity Commission Act 1986, the Human Rights and Equal Opportunity Commission (the Commission) has the power to inquire into alleged Commonwealth violations of the rights set out in the Covenant.
6.3 On 7 November 2001, counsel submitted further comments and notes that the Commission does not provide an effective remedy, since its only power is to prepare a report on human rights violations to the government. The Commission cannot issue enforceable decisions.
Issues and proceedings before the Committee Consideration of admissibility
7.1 Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not the communication is admissible under the Optional Protocol to the Covenant.
7.2 The Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement for purposes of article 5, paragraph 2 (a) of the Optional Protocol.
7.3 As to the claims presented by the author on behalf of her daughter Jessica, the Committee notes that at the time of her removal from the United States Jessica was fourteen months old, making her ten and a half years old at the time of the adoption of the Committee’s decision. Notwithstanding the consistent practice of the Committee that a custodial, or, for that matter, non-custodial, parent is entitled to represent his or her child under the Optional Protocol procedure without explicit authorization, the Committee points out that it is always for the author to substantiate that any claims made on behalf of a child represent the best interest of the child. In the current case, the author had the opportunity to raise any concerns related to Covenant rights in the proceedings before the national courts. While the Committee takes the position that the application of the Hague Convention in no way excludes the applicability of the Covenant it considers that the author has failed to substantiate, for purposes of admissibility, that the application of the Hague Convention would amount to a violation of Jessica’s rights under the Covenant. Consequently, this part of the communication is inadmissible pursuant to article 2 of the Optional Protocol.
7.4 As to the alleged violations of the author’s own rights, the Committee notes that the present situation, including its possible adverse effect on the
