I United Nations
| Author | Ineke Boerefijn |
| Published date | 01 December 2004 |
| DOI | 10.1177/016934410402200406 |
| Date | 01 December 2004 |
| Subject Matter | Part B: Human Rights News |
I UNITED NATIONS
INEKE BOEREFIJN
1. HUMAN RIGHTS COMMITTEE
The Human Rights Committee held its 81
st
session from 5-30 July 2004 in Geneva. It
considered reports from Belgium, Liechtenstein, Namibia and Serbia and
Montenegro. It considered the situation in the Central African Republic in the
absence of a report, but in the presence of a government representative. In respect
of the latter country, the Committee adopted provisional concluding observations,
which were not made public. It adopted 20 views and 5 inadmissibility decisions.
Communication No. 697/1996, Aponte Guzma
´nvs Colombia, inadmissibility decision of 5
July 2004 (inadmissible under Article 2 OP)
The author of the communication claimed to be the victim of a violation of
Articles 6(1), 9(1), 12, 17 and 23(1) of the Covenant. He submitted that he had
testified under special witness-protection legislation. He alleged that, in violation of
the law, his identity was revealed, thereby putting his and his family’s lives at risk. He
stated that he was threatened and that he and his family left Colombia under the
witness-protection legislation for the United States with a commitment from the
Colombian authorities for financial support. He claimed that the support he
received had been discontinued. On 18 March 1998 the communication was
declared admissible.
In light of the State party’s further submissions, the Committee reviewed its
admissibility decision under Rule 93(5) of its Rules of Procedure. The Committee
had taken note of the State party’s argument that the official who had been
identified by Mr. Aponte as responsible for revealing his identity had been the
subject of a disciplinary enquiry. It took note of the Public Prosecutor’s Office’s
decision to discontinue support under the protection and assistance programme
because the author was not at continuing risk. According to the Committee, the
author had adduced no evidence to the contrary. It concluded that the points that
had given rise to the complaint were no longer valid and declared the communica-
tion inadmissible under Article 2 OP, as insufficiently substantiated.
Communication No. 712/1996, Smirnova vs Russian Federation, views of 5 July 2004
(violation of Articles 9(3) and (4) and 10(1), no violation of Articles 9(2) and 14(3)(a) and
(c))
The author of the communication claimed to be the victim of a violation of
Articles 9, 10 and 14. On 5 February 1993, criminal proceedings were initiated
against the author, of which she learned on 14 September 1994 when she was
arrested and detained for 36 hours. On 26 August 1995 she was again arrested and
detained in a pre-trial detention centre. She was informed of the charges against her
on 31 August 1995.
PART B: HUMAN RIGHTS NEWS
Netherlands Quarterly of Human Rights, Vol. 22/4, 623-674, 2004.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 623
624
After the Committee’s admissibility decision, the author submitted an applica-
tion to the European Court of Human Rights. In 2003, the Court found violations of
Articles 5, 6 and 8 of the European Convention and ordered the State to pay
compensation. The Committee noted that at the time when the author submitted
her additional communications to the Committee, the same matter was being
examined by the European Court. It considered nevertheless that Article 5(2)(a) OP
did not constitute an obstacle for considering the communication, because this
provision required the Committee to consider whether, at the time it considered the
question of admissibility, the matter was under consideration under another
international procedure.
The European Court’s judgement included an award for compensation in
relation to events occurring after 19 June 1998 (the date of the author’s initial
communication to the Committee). The Committee noted that the author was no
longer in detention, and that the principal form of redress which could be provided
to remedy any relevant violations of her rights would be an award of compensation.
Accordingly, the Committee concluded that the author could not be considered to
be a victim within the meaning of Article 1 OP, of violations arising after 19 June
1998.
The author had filed a petition to challenge the lawfulness of her detention on
27 August 1995. The judge denied entertaining it, on the ground that the
investigation had been completed, and that it was therefore not competent to hear
it. The Committee noted that the right of a person deprived of her liberty to take
proceedings before a court to challenge the lawfulness of her detention was a
substantive right, and entailed more than the right to file a petition. According to
the Committee, it was a right for a proper review by a court of the lawfulness of the
detention. It concluded that Article 9(4) had been violated. Similarly, given that the
decision of the judge not to entertain the author’s petition on 13 September was
made ex parte, the Committee held the view that the author was not brought
promptly before a judge, in violation of Article 9(3). The Committee noted with
concern the State party’s submission that its criminal procedure laws, at least at that
time, made no provision for a person in police custody to be brought before a judge
or other judicial officer. The author had claimed another violation of Article 9(3), in
that she should not have been detained pending trial. In light of its finding of a
violation of Article 9(3) above, the Committee considered it unnecessary to consider
these allegations.
The author had claimed that she had not been promptly informed of the charges
against her. The Committee noted that the author had submitted that she was
arrested on 26 August 1995 and informed of the charges against her on 31 August
1995. It noted that it appeared that she had been informed of the charges against
her during the interrogation in September 1994. The State party had stated that the
author was informed of the reasons for her arrest and detention. The Committee
therefore considered that it was not in a position to establish a violation of
Articles 9(2) and 14(3)(a).
With respect to the author’s claim of a violation of the right to be tried without
undue delay, the Committee noted that the author had not contested the State
party’s submission that she had evaded the authorities. It therefore found no
violation of Article 14(3)(c).
With respect to the allegations concerning Articles 7 and 10(1), the Committee
noted that the author had provided a detailed account of the conditions in which
Human Rights News
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