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UN Treaty Bodies: Individual Complaints

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Complaint OHCHR (Petitions Unit) for initial assessment. Provide a summary to the relevant ... Following the birth, Mrs Nystrom departed for Australia on ... – PowerPoint PPT presentation

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Title: UN Treaty Bodies: Individual Complaints


1
UN Treaty Bodies Individual Complaints
  • Ben Schokman (HRLRC)
  • Peter Henley (Mallesons Stephen Jacques)

2
Individual Complaints
  • Treaty bodies that receive individual complaints
  • HRC (OP-ICCPR)
  • CAT (art 22)
  • CERD (art 14)
  • CEDAW (OP-CEDAW)
  • CMW Art 77
  • OP-ICESCR

3
Process Admissibility
  • Complaint ? OHCHR (Petitions Unit) for initial
    assessment
  • Provide a summary to the relevant Committees
    Special Rapporteur on New Communications
  • Decision by Special Rapporteur whether to
    register complaint
  • 99 of complaints are inadmissible
  • Majority are prepared without legal assistance

4
Admissibility
  • Must be individual and must not be anonymous
  • State must be party to the treaty and optional
    protocol
  • Must be a violation of a right under the treaty
  • Complaint must be in writing
  • Domestic remedies must be exhausted
  • Must not be under examination by another
    international procedure

5
Process Complaint
  • State Party has 6 months to respond on
    admissibility and merits
  • Author has 2 months to submit comments on the
    State Partys response
  • (Sometimes a further response from the State
    Party)
  • View issued by Committee (often includes
    recommendations)
  • Usually 30-40 decisions each year by HRC

6
Follow up on Views
  • State Party usually has 180 days to communicate
    what has been done to implement the decision of
    the Committee
  • Send reminders every 3 months
  • Role of NGOs
  • Lobby government
  • Contact case officer at OHCHR
  • Disseminate Views

7
Interim Measures
  • Available with HRC and CAT
  • Usually deportation, refoulement cases
  • Committee requests State Party to defer action
    until final decision
  • State Party usually abides
  • CERD
  • Early Warning and Urgent Action procedures

8
Case Studies Complaints to the Human Rights
Committee Nystrom v Australia Taha v Australia
9
Background Nystrom
  • Nystroms father Swedish
  • Nystroms mother born in Finland and migrated
    to Sweden in 1950 Swedish citizen
  • In 1966, couple permanently migrated to Australia
    permanent residency status
  • Mrs Nystrom gave birth to their first child in
    1969 Annette Australian citizen
  • In 1973, while pregnant a second time, Mrs
    Nystrom returned to Sweden with her daughter to
    visit family members
  • Gave birth to Stefan Nystrom in Sweden on
    31 December 1973 Swedish citizen
  • Following the birth, Mrs Nystrom departed for
    Australia on 25 January 1974, accompanied by
    Nystrom, who was 25 days old at the time

10
Background Nystrom (cont)
  • Since that date, Nystrom had not left Australia
    until his deportation in 2006 (33 years old)
  • Since the age of 10, Nystrom has been convicted
    of a large number of offences based largely on
    an alcohol addiction
  • Ward of the State at age 13
  • Nystrom has a substantial criminal record
    within the meaning of s 501(7) of the Migration
    Act
  • August 2003 Dept of Immigration issues a notice
    of intention to consider the cancellation of visa
  • August 2004 Minister signs a deportation order
  • November 2004 Nystrom arrested by Australian
    Federal Police and taken into Port Phillip Prison
    where he remained in high security for 8 months

11
Background Nystrom (cont)
  • February 2005 Nystrom applies for judicial
    review of the Ministers decision in the Federal
    Magistrates Court
  • 16 March 2005 Hartnett FM dismisses application
    and upholds Ministers decision
  • 1 July 2005 Full Court of the Federal Court of
    Australia upholds Nystroms appeal Nystrom is
    released from Port Phillip Prison
  • 8 November 2006 High Court allows the
    Ministers appeal
  • 10 November 2006 Nystrom is arrested in Swan
    Hill and taken into the Maribyrnong Immigration
    Detention Centre
  • 22 December 2006 HRLRC submits Preliminary
    Communication to the UN Human Rights Committee
    seeking interim measures
  • 29 December 2006 Nystrom is deported to Sweden
  • April 2007 HRLRC submits Full Communication to
    the UN Human Rights Committee

12
Admissibility General
  • Optional Protocol
  • Article 1 Australia is a party to the ICCPR and
    Optional Protocol and the complainants are
    subject to its jurisdiction
  • Article 2 authors of the communication claim
    their rights have been violated and domestic
    remedies have been exhausted
  • Article 3 complaint is not anonymous and is
    compatible with ICCPR
  • Article 5(2) not being considered by any other
    procedure of international investigation or
    settlement

13
Alleged Violations Nystrom
  • Stefan Nystrom
  • Article 9 arbitrary detention
  • Article 12(4) right to enter ones own country
  • Article 14(7) double punishment
  • Article 17 protection of privacy, family or
    home
  • Article 23(1) protection of family
  • Article 26 right to non-discrimination
  • Britt Nystrom (mother)
  • Article 17 protection of privacy, family or
    home
  • Article 23(1) protection of family
  • Annette Turner (sister)
  • Article 17 protection of privacy, family or
    home
  • Article 23(1) protection of family

14
Request for Interim Measures
  • Preliminary Communication submitted to the UN
    Human Rights Committee prior to Nystroms
    deportation requesting that, pending the
    determination of the Communication
  • Nystrom not be removed from Australia and
  • Nystrom not be detained as an unlawful
    non-citizen or in any other form of immigration
    detention while in Australia or
  • in the event that Nystrom is removed from
    Australia, he be granted the right to temporarily
    re-enter Australia on a reasonably regular basis.

15
Article 12(4) Right to enter ones own country
  • Article 12(4)
  • No one shall be arbitrarily deprived of the
    right to enter his own country.
  • Australia is Nystroms own country he has
    known no other country
  • Highly unlikely that he will be granted a visa to
    enter Australia in the future due to his
    substantial criminal record
  • Concept of arbitrariness contemplates that it
    must not simply be equated with against the law
    but must be interpreted broadly to include such
    elements as inappropriateness, excessiveness or
    lack of proportionality

16
Article 14(7) Double punishment
  • Article 14(7)
  • No one shall be liable to be tried or punished
    again for an offence for which he has already
    been finally convicted or acquitted in accordance
    with the law and penal procedure of each country.
  • Nystrom was tried, convicted, and imprisoned for
    his crimes in accordance with Australian criminal
    law
  • Cancellation of Nystroms visa and his
    consequential detention and deportation to Sweden
    each constitutes a second instance of punishment
  • Unreasonable discrimination on the basis of
    nationality (articles 2(1) and 26)

17
Articles 17 and 23 Right to privacy and
protection of the family unit
  • Article 17
  • 1. No one shall be subjected to arbitrary or
    unlawful interference with his privacy, family,
    home or correspondence, nor to unlawful attacks
    on his honour and reputation.
  • 2. Everyone has the right to the protection of
    the law against such interference or attacks.
  • Article 23(1)
  • The family is the natural and fundamental group
    unit of society and is entitled to protection by
    society and the State.
  • Interference that is unlawful or arbitrary
  • Unreasonable discrimination on the basis of
    nationality (articles 2(1) and 26)

18
Article 9 Arbitrary arrest or detention
  • Article 9(1)
  • Everyone has the right to liberty and security
    of person. No one shall be subjected to arbitrary
    arrest or detention. No one shall be deprived of
    his liberty except on such grounds and in
    accordance with such procedure as are established
    by law.
  • Detention in Port Phillip Prison and Immigration
    Detention was not reasonable, necessary,
    proportionate, appropriate and justifiable in all
    of the circumstances

19
Findings and Remedies Nystrom
  • Findings
  • Communication requested the Committee to act
    under Article 5(4) of the Optional Protocol to
    make a finding that the State party has violated
    each of Articles 7, 9, 12(4), 14(7), 17, 23(1)
    and 26 of the Covenant
  • Remedies
  • Article 2(3)(a) of the Covenant requirement to
    provide an effective remedy in relation to the
    violations
  • Communication requested the following remedies
  • Reinstatement of Nystroms permanent residency
    status and
  • Compensation, assessed according to the standards
    applicable under Australian domestic law.

20
Background Taha
  • Around 20 January 2004 - Hassan removed from Port
    Hedland detention centre to Perth detention
    centre for deportation
  • 23 January 2004 - Initial Communication sent to
    the Committee, alleging breaches of article 7,
    and also 9(1) and 9(4) of ICCPR.
  • 26 January 2004 - Committee requests the State
    party
  • to provide information and observations on
    admissibility and merits and
  • request Australia not deport Taha until the
    Committee has had an opportunity to address the
    State partys submissions.
  • 26 October 2004 - The State party presents its
    submissions on admissibility and merits, and
    reserves its rights in relation to the
    Committees request for interim measures.
  • 9 November 2004 - Committee invites Taha to make
    comments on the State partys Submission on
    admissibility and merits.

21
Background Taha (cont)
  • 23 December 2004 Request to the AG dept to
    provide materials cited in the State party
    Submission which were not publicly available, and
    to the Committee for an extension of time to
    10 February 2005 for the submission of comments
    by the author on the State partys Submission.
  • 28 December 2004 - Committee grants the authors
    representatives request for an extension of time
    until 10 February 2005.
  • 31 January 2005 - Office of International Law,
    A-Gs Department, notifies the authors
    representatives that the request for materials
    cited in the State partys Submission has been
    referred to DIMIA for consideration.
  • 7 February 2004 - Receive a response from DIMIA
    stating that the materials requested by Taha on
    23 December 2004 need to be sought through
    Australias standard FOI procedures.

22
Background Taha (cont)
  • 10 February 2005 - Submitted the response on
    Tahas behalf to the State partys Submission.
  • 31 August 2005 - Second attempted deportation and
    Federal Court application for injunction
  • 1 6 September 2005 - Flight halted in Dubai,
    UNHCR provided further info confidentially to
    Australia government, returned to Australia
  • Mid September 2005 Taha permitted to reapply
    for TPV afresh
  • Late 2005 / early 2006 - Further response by AG
    Dept to Committee, denying allegations and
    requesting withdrawal of communication
  • 6 October 2006 - TPV received
  • 5 October 2007 - PPV received
  • December 2007 - Withdrawn

23
Alleged Violations Taha
  • Article 7 torture, cruel inhuman or degrading
    treatment (non refoulement)
  • Article 9(1) - arbitrary detention
  • Article 9(4) - fair hearing

24
Use and value of communication Taha
  • Not a judicial process as such not an appeal
  • No binding ruling on State party will follow
  • Long time period 4 years
  • What is the benefit?
  • Can it provide urgent assistance?
  • Does it put pressure on States to comply?
  • Is it worth doing for the record?
  • What other benefits are there?

25
Use and value of communication Taha (cont)
  • Urgency
  • Interim measures are hard to get
  • But might be useful for Federal Court proceedings
    injunction
  • evidence of alleged violations
  • provided basis for establishing urgency
  • Pressure on States together with reports, etc
  • For the record?
  • May be a useful record of changes in Australian
    law
  • Also provides a list of examples for domestic
    advocacy purposes

26
Use and value of communication Taha (cont)
  • Engagement of other UN agencies HCR
  • provided formal and substantive basis for HCR
    involvement crucial re deportation and return
  • led eventually to TPV and PPV
  • External advocacy of case / media?
  • query whether publicity is always beneficial
  • what tone / profile will media coverage give, and
    will it help?
  • confidentiality and secrecy

27
Advantages and disadvantages
  • Committees View is only a recommendation
  • Attitude of the Australian Government?
  • Lengthy procedure can take 2-4 years for a
    decision

28
Some practical considerations
  • Consider which treaty body to engage…
  • Different/variable strengths of Committees
  • Consider whether Special Procedures may be more
    useful?
  • Examples
  • Toonen v Australia
  • Young v Australia
  • A v Australia (see also Baban, Bhaktiaryi, DE,
    Shafiq)
  • Winata v Australia
  • C v Australia
  • Brough v Australia

29
Further Information
  • Copy of the Communications
  • HRLRC website gt Human Rights Library gt Legal
    Briefs
  • Taha v Australia submitted by PILCH
  • HRLRC Manual
  • Chapter 6 gt Individual Complaint Mechanisms
  • www.hrlrc.org.au
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