I United Nations
| Author | Ineke Boerefijn |
| Published date | 01 March 2008 |
| DOI | 10.1177/016934410802600105 |
| Date | 01 March 2008 |
| Subject Matter | Part B: Human Rights News |
Netherlands Q uarterly of Human R ights, Vol. 26/1, 109–138, 2008.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 109
PART B: HUMAN RIGHTS NEWS
I UNITED NATIONS
I B*
1. HUMAN RIGHTS COMMITTEE, 90th SESSION
e Human Rights Comm ittee held its 90th session from 9–27 July 2007 in Geneva.1
Activities under t he Individual Complaints Procedure: Selec tion of Views and
Decisions
Communication No. 1143/2003, El Dernaw i vs e Libyan Arab Jamahiriya , Views of
20 July 2007 (violation of Articles 12(2), 17, 23 and 24)
is communication demonstr ates the far-reaching consequences of the conscation
of a passport. Switzerland granted refugee status to Mr El Dernawi, a Libyan national,
and approved family reu nication. When the author’s wife sought to leave Libya , the
authorities consc ated her passport, that covered also their t hree youngest children.
She was informed that she could not travel bec ause her husband ’s name was on an
internal securit y wa nted l ist i n con nection with a political case. All attempts to
retrieve her passport failed. Consequently, she and her c hildren can not join M r El
Dernawi i n Switzerland. Under the circum stances, the three older ch ildren who do
have passports do not wish to leave their mot her.
e Comm ittee considered that the conscation of the passport and the failure
to restore the do cument amounted to an interference wit h the right to freedom of
movement which must be justied in terms of t he permissible li mitations set out i n
Article 12(3). Since the State party had not adva nced any such justication, and there
was no such basis appa rent to the Committee on the ba sis of the material before it, it
concluded that there had been a violation of Article 12(2), in resp ect of the author’s
wife and the th ree youngest children whom her passport also covered.
e Committe e noted that the State party’s act ion amounted to a denitive, and
sole, barrier to the family being reunited in Switzerland. It furt her noted that t he
* Professor of gender and law, Maastricht University and as sociate professor, Netherlands Inst itute of
Human Right s (SIM), Utrecht School of Law, the Netherla nds.
1 For information on the activit ies under t he reporting procedure, see NQHR, Vol. 25, No. 4, 2007,
p. 673.
Human Right s News
110 Intersentia
author, as a person granted refugee status under the 1951 Convention on the Status
of Refugees , could not reas onably be expected to return to his country of origin. In
the absence of justi cation by the State party, t he Comm ittee concluded that the
interference with family life was arbitrary in terms of Article 17 with respect to
the author, h is wife and six children, and that the State part y failed to discharge its
obligation under Article 23 to respect the family unit in respect of each member of the
family. In v iew of the advantage to a child’s development in living w ith both parents
absent persuasive countervailing reasons, it further concluded that the State party had
failed to respect the special status of the children, and found a violation of the rights of
the children up to the age of 18 years under A rticle 24 of the Covenant.
e Committee st ated that the State part y was under an obligation to ensure that
the aut hor, his wife a nd their children were granted an eective remedy, including
compensation and return of the passpor t of the author’s wife without furt her delay in
order that she and the covered chi ldren could depart the State part y for purposes of
family reuni cation.
Communication No. 1173/2003, Benhadj vs Algeria , Views of 20 July 2007 (violation of
Articles 9(4), 10(1) and 14)
is case concerns the sentencing by a military tribunal and subsequent incommunicado
detention of one of the founding members of the Algerian Front Isl amique du Salut
(FIS). Mr Benhadj was arrested and sentenced to 12 years of rigorous imprisonment
for jeopardising State secur ity and the proper functioning of the nationa l economy.
During va rious periods, one of w hich lasted for four year s, Mr Benhadj was held
in secret detention, where he had no access to counsel, and was unable to challenge
the lawf ulness of his detention. e Committe e found that th is violated Art icle 9(4)
of the Covenant. e Committee further considered that the conditions of detention
violated Ar ticle 10(1). It reiterated that persons deprived of their liberty may not be
subjected to any hardship or constraint other than that resulting from the deprivation
of liberty; they must be treated in accordance with, inter alia , the Standard Minimum
Rules for the Treatment of Prisoners. e Commit tee considered it unnecessar y to
consider separately the claims arising under Article 7, as well as other cla ims under
Article 9.
With respe ct to Ar ticle 14, the Committee considered that it is the St ate party’s
obligation to justif y trial of civil ians by a militar y court. It stated that the St ate party
must demonst rate, with regard to the specic class of individuals at issue, that t he
regular civ ilian courts are unable to undert ake the trials, that other a lternative forms
of special or high-securit y civilian courts are inadequate to the task and that recourse
to mi litary cour ts ensures the ful l protection of the rights of the accused pursuant
to Article 14. It fur ther considered that the State part y must further demonstrate
how milita ry courts e nsure the ful l protection of t he rights of the accused pursu ant
to A rticle 14. It found that in the present case the State party had not shown why
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