I United Nations
| Published date | 01 March 2004 |
| DOI | 10.1177/016934410402200105 |
| Author | Ineke Boerefijn |
| Date | 01 March 2004 |
| Subject Matter | Part B: Human Rights News |
I UNITED NATIONS
INEKE BOEREFIJN
1. HUMAN RIGHTS COMMITTEE
The Human Rights Committee held its 79
th
session from 20 October –
7 November 2003 in Geneva. It considered reports submitted by the
Philippines, the Russian Federation, Latvia and Sri Lanka. Furthermore, it
considered the situation in Equatorial Guinea in the absence of a report. It
continued, but did not finalise, its discussion on a general comment on
Article 2 CCPR. Also, it adopted inadmissibility decisions and views, which
are summarised below.
Communication No. 798/1998, Howell vs Jamaica, views of 21 October 2003
(violation of Articles 7, and 10(1), no violation of Article 19(2), claim concerning
Article 6(1) inadmissible)
The author of the communication was, at the time of submission, detained
on death row, and subsequently released. He claimed to be the victim of a
violation of Articles 6(1), 7, 10(1) and 19(2) of the Covenant.
According to the Committee, the author’s claim that an arbitrary
resumption of executions after a long period of delay would amount to a
violation of Article 6(1) had become moot since the author had been
released. One Committee member declared in an individual opinion to the
views that she held the view that this part of the communication should have
been declared inadmissible under Article 2 OP, since the author could not
be regarded as a victim.
With respect to the claims concerning Articles 7 and 10(1), the
Committee observed that the author had given a detailed account of the
treatment he had been subjected to and that the State party had not
challenged his grievances. According to the Committee, the repeated
beatings by warders amounted to a violation of Article 7 of the Covenant. It
further found that the conditions on death row violated Article 10(1) of the
Covenant. In reaching this conclusion, the Committee took into account its
findings in earlier communications on the conditions in the prison in which
the author was held, taken together with the lack of medical and dental care
and the incident of the burning of his personal belongings.
As to the author’s claim that severe mental distress amounted to a further
violation of Article 7 caused by the continued uncertainty of whether or not
he would be executed, the Committee recalled its constant jurisprudence
that prolonged delays in the execution of a sentence of death do not per se
constitute a violation of Articles 7 in the absence of other ‘compelling
PART B: HUMAN RIGHTS NEWS
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#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 77
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circumstances’. According to the Committee, there were no such
circumstances in the present case; it therefore found no violation of Article
7 in this respect. One Committee member disagreed from this finding. In
his view the facts which led to finding a violation of Articles 7 and 10(1)
amounted to ‘compelling circumstances’.
With respect to the alleged violation of Article 19(2), because of the
standing order to deprive the author of writing implements, the Committee
observed that the author was able to communicate with counsel within one
day of the issuance of this order, and thereafter with counsel and a friend.
According to the Committee, it was not in the position to conclude that the
author’s rights under Article 19(2) had been violated.
The Committee stated that the State party was under an obligation to
provide the author with an effective remedy, including compensation.
Communication No. 842/1998, Romanov vs Ukraine, inadmissibility decision of
6 November 2003 (inadmissible under Articles 2 and 3 OP)
The author of the communication claimed to be the victim of a violation of
Articles 2(1) and (3)(a), 7, 9(1), and 14(1), (2) and (5) of the Covenant. He
had been convicted for attempted murder. The claims concerning Articles
2, 7 and 9 were declared inadmissible as insufficiently substantiated.
With respect to the claims concerning Articles 14(1) and (2), the
Committee observed that the allegations related in substance to the
evaluation of facts and evidence in the course of proceedings in the
Ukrainian courts. It recalled its jurisprudence that it was generally for the
courts of States parties to review or to evaluate facts and evidence, unless it
could be ascertained that the conduct of the trial or the evaluation of facts
and evidence was manifestly arbitrary or amounted to a denial of justice. It
considered that the material before it did not indicate that the conduct of
the judicial proceedings in the author’s case suffered from such
deficiencies, and concluded that the author’s claims under Article 14(1)
and (2) were inadmissible under Article 3 OP.
In relation to the author’s claims concerning Article 14(5), the
Committee noted that an appellate procedure should entail a full review
of the conviction and sentence, together with a due consideration of the
case at first instance. The Committee noted that, from the material
provided, Ukrainian law required the appeal court to consider all relevant
evidence and arguments. It also noted that it appeared from the judgment
of the Ukrainian Supreme Court that it did consider the author’s
arguments. Based on its review of the decision at first instance, the Supreme
Court found that there was no basis to allow the appeal. The Committee
therefore considered that the author had not substantiated his claims under
Article 14(5), and concluded that it was inadmissible pursuant to Article 2
OP.
Human Rights News
Communication No. 868/1999, Wilson vs the Philippines, views of 30 October 2003
(violation of Articles 7, 9(1), (2) and (3) and 10(1) and (2); claims concerning
Article 14(1), (2), (3) and (6) inadmissible)
The author of the communication is a British national, who claimed to be
the victim of a violation by The Philippines of Articles 2(2) and (3), 6, 7, 9,
10(1) and (2), 14(1), (2), (3) and (6). The author had been sentenced to
death for rape of his minor stepdaughter, but was subsequently – after
submission of his communication to the Human Rights Committee –
acquitted by the Supreme Court and released after having spent 15 months
on death row. Upon returning to the United Kingdom, he had to pay a fee
and a fine for overstaying his tourist visa.
The State party objected against admissibility of the communication on
the ground of non-exhaustion of domestic remedies, because the author
could have lodged a complaint with the Philippine Human Rights
Commission, and that he could have initiated a civil action. The Committee
observed that the author had complained to the Commission while in
prison, but received no response to these replies, and that the Commission
was empowered to grant ‘financial assistance’ rather than compensation. It
further observed that a civil action could not be advanced against the State
without its consent, and that there were extensive limitations on the ability
to achieve an award against individual officers of the State. Viewing these
elements against the backdrop of the author’s exclusion from entry to the
Philippines, the Committee considered that the State party had failed to
demonstrate that the remedies advanced were both available and effective.
The Committee concluded that it was not precluded, under Article 5(2)(b)
OP from considering the communication.
According to the State party, the Supreme Court’s decision and
subsequent compensation raised issues of admissibility concerning some or
all of the author’s claims. The Committee observed that the communication
was initially submitted well prior to the Supreme Court’s decision in his case.
It observed that in cases where a violation of the Covenant was remedied at
the domestic plane prior to submission of the communication, the
Committee could consider a communication inadmissible on grounds of,
for example, lack of ‘victim’ status or want of a ‘claim’. It observed that, where
the alleged remedy occurred subsequent to submission of a communication,
the Committee could nevertheless address the issue whether there had been
a violation of the Covenant and then go to the sufficiency of the afforded
remedy. It stated that it followed that it regarded the events referred to by the
State party by way of remedy, as relevant to the issues of determination of the
merits of a communication and an adequacy of the remedy to be granted to
the author for any violations of his Covenant rights, rather than amounting to
an obstacle to the admissibility of claims already submitted.
The author claimed that Article 14(1) and (3) of the Covenant had been
violated. The Committee observed that these claims had not been
substantiated by relevant facts or arguments. It noted that, contrary to what
I United Nations
Netherlands Quarterly of Human Rights, Vol. 22/1 (2004) 79
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