Consideration by the Human Rights Committee at its 114th, 115th and 116th sessions of communications received under the Optional Protocol to the International Covenant on Civil and Political Rights

Progress of work The Committee started its work under the Optional Protocol at its second session, in 1977. Since then 2759 communications concerning 92 States parties have been registered for consideration by the Committee, including 166 registered during the period covered by the present report. At present, the status of the 2759 communications registered is as follows: (a) Consideration concluded by the adoption of Views under article 5, paragraph 4, of the Optional Protocol: 1156, including 975 in which violations of the Covenant were found; (b) Declared inadmissible: 668; (c) Discontinued or withdrawn: 386;

Interim measures under rule 92 of the Committee’s rules of procedure Under rule 92 of its rules of procedure, the Committee may, after receipt of a communication and before adopting its Views, request a State party to take interim measures in order to avoid irreparable damage to the victim of the alleged violations. The Committee continues to apply this rule on appropriate occasions, for instance in cases of imminent deportation or extradition which may involve or expose the author to a real risk of violation of rights protected under the Covenant, or when issues concerning the health of the alleged victim are at stake. During the period under review, the Special Rapporteur on new communications and interim measures issued requests for interim measures in 38 cases. In connection with the communications decided during the period under review, requests for the adoption of interim measures had been made in communications Nos. 2017/2010 (Burdyko v. Belarus), 2060/2011 (W.M.G. v. Canada), 2193/2012 (K.B. v. Russian Federation), 2258/2013 (Rasappu v. Denmark), 2280/2013 (Y v. Canada), 2284/2013 (F.M. v. Canada), 2288/2013 (Omo-Amenaghawon v. Denmark), 2289/2013 (Selyun v. Belarus), 2304/2013 (Mukhtar v. Kazakhstan), 2314/2013 (Y v. Canada), 2327/2014 (Y v. Canada), 2329/2014 (Z v. Denmark), 2343/2014 (H.E.A.K. v. Denmark), 2347/2014 (K.G. v. Denmark), 2351/2014 (R.G. et al. v. Denmark), 2360/2014 (Jasin v. Denmark),2366/2014 (X. v. Canada), 2389/2014 (X v. Denmark), 2409/2014 (Ali et al v. Denmark), 2422/2014 (Z v. Denmark),2426/2014 (N. v. Denmark) and 2428/2014 (I.A.A. et al v. Denmark). In case No. 2060/2011 (W.M.G. v. Canada), concerning the deportation of the author to Zimbabwe, the Committee, subsequent to the issuance of a request for interim measures, decided to grant the State party’s request to lift such measures. As a result, the author was removed from the country. In case No. 2284/2013 (F.M. v. Canada), the Committee took note of the State party’s assertion that it agreed to stay the execution of the order for the author’s removal and its statement that the author should have reported to the airport despite the issuance of a stay of the removal order. The Committee nonetheless remained concerned by the decision of the Federal Court of Canada in which the Court found that Canada was not bound by the interim measures adopted by the Committee on behalf of the author. The Committee recalled its consistent position that a failure to implement interim measures is incompatible with the obligation to respect in good faith the procedure for the consideration of individual communications under the Optional Protocol. The Committee reminded the State party that the obligations under the Covenant and the Optional Protocol are binding on the State party as a whole, including all branches of its Government.

Protection measures In case No. 2077/2011 (A.S. v. Nepal), the author claimed to have been harassed following the legal proceedings he undertook against a police officer who had beaten him. When registering the communication and pursuant to rule 92 of its rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, requested the State party to adopt all measures necessary to protect the life, safety and personal integrity of the author, so as to avoid irreparable damage to him, and to inform the Committee on the measures taken by the State party in compliance with the request. No information was submitted to the Committee by the State party regarding such measures. In case No. 2370/2014 (A.H. v. Denmark), where the author was deported to Afghanistan following the rejection of his asylum claim, the Committee, upon registering the communication on 31 March 2014 and pursuant to rule 92 of its rules of procedure, requested the State party to ensure that the author was protected during the period of consideration of the communication by the Committee and, in particular, to instruct its embassy in Kabul to contact the author and provide information on his situation. The Committee reiterated its request for interim protection on two further occasions. On 1 October 2014, the State party informed the Committee that its authorities were unable to provide protection of the author on Afghan territory, where Denmark does not have jurisdiction. However, it had complied with the Committee’s request to instruct its embassy in Kabul to contact the author and provide information on his situation, including through an interview of the author conducted by the Danish embassy on 20 August 2014.

Cooperation by the States parties in the examination of communications In several cases decided during the period under review, the Committee noted that the State party had failed to cooperate in the procedure by not providing observations on the admissibility and/or merits of the authors’ allegations. The States parties in question are Belarus (13 cases), Belgium (one case), and Democratic Republic of Congo (one case). The Committee deplored that situation and recalled that it is implicit in the Optional Protocol that States parties should transmit to the Committee all information at their disposal. In the absence of a reply, due weight has to be given to the author’s allegations, to the extent that they have been properly substantiated. In case No. 1950/2010 (Timoshenko v. Belarus), the Committee noted the State party’s assertion that there were no legal grounds for the consideration of the author’s communication, insofar as it was registered in violation of the provisions of the Optional Protocol; that it had no obligations regarding recognition of the Committee’s rules of procedure nor the Committee’s interpretation of the provisions of the Optional Protocol; and that decisions taken by the Committee on the communication would be considered by its authorities as “invalid”. The Committee also noted the State party’s observation that registration of communications submitted by a third party (lawyers, other persons) on behalf of individuals claiming a violation of their rights constitutes an abuse of the mandate of the Committee and of the right to submit a communication. The Committee recalled that under article 39 (2) of the Covenant, it is empowered to establish its own rules of procedure, which the States parties have agreed to recognize; that, by adhering to the Optional Protocol, a State party to the Covenant recognizes the competence of the Committee to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant (preamble and art. 1 of the Optional Protocol); and that, by denying the right of an individual to be represented by a lawyer (or a designated person) of his or her choice before the Committee, the State party fails to meet its obligations under the Optional Protocol. Implicit in a State’s adherence to the Optional Protocol is the undertaking to cooperate with the Committee in good faith so as to permit and enable it to consider such communications and, after examination, to forward its Views to the State party and the individual (art. 5, paras. 1 and 4). It is incompatible with these obligations for a State party to take any action that would prevent or frustrate the Committee in its consideration and examination of a communication and in the expression of its Views. Furthermore, it is up to the Committee to determine whether a communication should be registered. By failing to accept the competence of the Committee to determine whether a communication should be registered, and by declaring beforehand that it will not accept the Committee’s determination on the admissibility and on the merits of the communication, the State party violated its obligations under article 1 of the Optional Protocol. The Committee maintained this position in cases Nos. 1969/2010 (Surgan v. Belarus), 1982/2010 (Mikhalchenko v. Belarus), 1988/2010 (Evrezov v. Belarus), 1996/2010 (Kruk v. Belarus), 2011/2010 (Romanovsky v. Belarus), 2016/2010 (Sudalenko v. Belarus), 2019/2010 (Poplavny v. Belarus), 2076/2011 (Derzhavtsev v. Belarus), 2047/2011 (S.V. v. Belarus), 2084/2011 (V.L. v. Belarus), and 2133/2012 (Statkevich et al v. Belarus). While in the majority of cases where the Committee requested the States parties concerned to take interim measures such requests were granted, there were some instances in which this was not done. Thus, in communication No. 2193/2012 (K.B. v. Russian Federation), the author was extradited to Kyrgyzstan despite the Committee’s request to halt the extradition while the communication was pending. The Committee recalled its jurisprudence that a State party commits serious breaches of its obligations under the Optional Protocol if its action or inaction serves to prevent or frustrate consideration by the Committee of a communication alleging a violation of the Covenant, or to render examination by the Committee moot and the expression of its Views nugatory and futile. Interim measures pursuant to rule 92 of its rules of procedure, adopted in conformity with article 39 of the Covenant, are essential to the Committee’s role under the Optional Protocol. Flouting of the rule, especially by irreversible measures such as, in the present case, the author’s extradition, undermines the protection of Covenant rights through the Optional Protocol. In the Committee’s view, these circumstances disclose a breach by the State party of its obligations under article 1 of the Optional Protocol. The Committee made a similar consideration in case No. 2017/2010, Burdyko v. Belarus). The Committee also recalled the above mentioned jurisprudence in case No. 2289/2013 (Selyun v. Belarus). When he submitted the communication on 27 September 2013, the author informed the Committee that he had been sentenced to death and that the sentence could be carried out at any time. On 2 October 2013, the Committee transmitted to the State party a request not to carry out the death sentence while the case was under examination by the Committee. On 19 December 2013, the Committee reiterated its request. On 22 May 2014, the Committee received information that the author had been executed. In its Views the Committee observed the author’s claim that his rights under various provisions of the Covenant had been violated in a manner that directly reflected on the legality of his death sentence. The Committee held that, having been notified of the communication and the request for interim measures, the State party committed a serious breach of its obligations under the Optional Protocol by executing the author before the Committee had concluded its consideration of the communication. The Committee recalled that interim measures are essential to its role under the Optional Protocol and that flouting of that rule, especially by irreversible measures, such as, in the present case, the execution of Mr. Selyun, undermined the protection of Covenant rights through the Optional Protocol.

Individual opinions In its work under the Optional Protocol, the Committee seeks to adopt decisions by consensus. However, pursuant to rule 104 of the Committee’s rules of procedure, members can add their individual opinions (concurring or dissenting) to the Committee’s Views. Under this rule, members can also append their individual opinions to the Committee’s decisions declaring communications admissible or inadmissible. During the period under review, individual opinions were appended to the Committee’s Views and decisions concerning 28 communications.

Follow-up to Views During the period under review, the Special Rapporteur for follow-up on Views submitted reports at the 115th and 116th sessions. The follow-up report on Views under the Optional Protocol from the 115th session can be found at this link: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f115%2f3&Lang=en To date, 975 of the 1156 Views adopted since 1979 concluded that there had been a violation of the Covenant. The Committee has continued its practice initiated on an experimental basis at its 109th session, to include in its reports on follow-up to Views an assessment of the States parties' reply/action, based on the criteria of the follow-up procedure to the Concluding Observations. The Committee again notes that many States parties have failed to implement the Views adopted under the Optional Protocol. The Committee has continued to seek to ensure implementation of its Views through its Special Rapporteur for follow-up on Views. Meetings were arranged with representatives of Bosnia and Herzegovina, Libya, the Philippines, Spain, and Sri Lanka, so as to engage in a dialogue on the measures taken to give effect to its Views. At its 115 and 116th sessions, the Committee decided to close the follow-up dialogue with a note of satisfactory implementation of its recommendations in cases 238/1987 (Bolaños v. Ecuador); 1908/2009 (X v. the Republic of Korea) and 2007/2010 (X. v. Denmark). In case 1756/2008 (Moidunov and Zhumabaeva v. Kyrgyzstan), the Committee decided to resume the follow-up dialogue, which had been suspended at the 112th session.

Inadmissibility for lack of victim status (Optional Protocol, art. 1) In case No. 2039/2011 (A.N. v. Denmark), the Committee noted the author’s claim under articles 20 (2) and 27 of the Covenant based on the State party’s failure to take effective measures against hate speech statements directed against the Muslim community living in Denmark. The Committee recalled its jurisprudence that no person may, in theoretical terms and by actio popularis, object to a law or practice which they hold to be at variance with the Covenant and that any person claiming to be a victim of a violation of a right protected by the Covenant must demonstrate either that the exercise of their rights has already been impaired by a State act or omission or that such impairment is imminent, basing their argument for example on legislation in force or on a judicial or administrative decision or practice. In the present case, the Committee noted the author’s argument that the defamatory statements against the Muslim community publish in press articles affected his daily life in a negative way, preventing him from integrating into the Danish society, accessing social rights and putting him at risk of attacks by persons who may be influenced by such statements. However, the Committee considered that, without prejudice to the State party’s obligations deriving from article 20 (2), the author had failed to demonstrate that his rights under the Covenant were effectively impaired by the State party, or that such impairment would be imminent as a result of the decision to withdraw charges against the authors of the articles. The author therefore failed to establish that he was personally affected by the State party’s decision not to prosecute the authors of the disputed articles. In light of this, the Committee concluded that the author had failed to demonstrate that he was a victim of a violation by the State party of a right protected under the Covenant and declared the claim inadmissible under article 1 of the Optional Protocol.

Admissibility/Inadmissibility “ratione temporis” (Optional Protocol, art. 1) The Committee declared case No. 2130/2012 (Ben Ali v. Tunisia) inadmissible because the facts complained of took place before the entry into force of the Optional Protocol for Tunisia. In case No. 2129/2012 (Esergepov v. Kazakhstan) some claims were also declared inadmissible for the same reason. In case No. 2036/2011 (Yusupova v. Russian Federation), the author claimed violations of article 9(5) of the Covenant for not having received compensation in connection with her unlawful and arbitrary deprivation of liberty. The Committee noted that the author was deprived of her liberty for 13 years, between 1944 and 1957, and that this deprivation of liberty, which had been recognized to be unlawful and arbitrary by the State party, occurred before the entry into force of the Covenant. The Committee further noted that the Kirov District Court had recognized the author as a victim of political repression but denied her right to compensation in addition to the benefits she already received as a person with disabilities. The Committee considered that it was not precluded ratione temporis from examining the alleged violation of article 9(5) of the Covenant, even if the detention itself had taken place before the entry into force of the Covenant.

Claims not substantiated (Optional Protocol, art. 2) A number of cases were declared inadmissible for lack of substantiation under article 2, such as cases Nos. 1895/2009 (S.R. v. Belgium), 2047/2011 (S.V. v. Belarus), 2084/2011 (V.L. v. Belarus) and 2626/2015 (A.G.S. v. Spain). In other cases specific claims were declared inadmissible for this reason, such as cases Nos. 1902/2009 (Bakur v. Belarus), 1909/2009 (Fa’afete v. New Zealand), 1941/2010 (Neporozhnev v. Russian Federation), 1969/2010 (Surgan v. Belarus), 1982/2010 (Mikhalchenko v. Belarus), 1996/2010 (Kruk v. Belarus) 2011/2010 (Romanovsky v. Belarus), 2017/2010, (Burdyko v. Belarus), 2036/2011 (Yusupova v. Russian Federation), 2043/2011 (V.M. v. Russian Federation), 2044/2011 (T.V. and A.G. v. Uzbekistan), , 2059/2011 (Y.M. v. Russian Federation), 2060/2011 (W.M.G. v. Canada), 2078/2011 (Amanklychev v. Turkmenistan), 2099/2011 (Polskikh v. Russian Federation), 2129/2012 (Esergepov v. Kazakhstan),2141/2012 (Arkadyevich v. Russian Federation), 2193/2012 (K.B. v. Russian Federation), 2198/2012 (V.D. v. Russian Federation), 2214/2012 (Lumbala v. Democratic Republic of the Congo), 2229/2012 (Nasir v. Australia), 2231/2012 (Askarov v. Kyrgyzstan), 2234/2013 (M.T. v. Uzbekistan), 2279/2013 (Zoltowski v. Australia), 2288/2013 (Omo-Amenaghawon v. Denmark), 2289/2013 (Selyun v. Belarus), 2314/2013 (Y v. Canada), 2327/2014 (Y v. Canada), 2343/2014 (H.E.A.K. v. Denmark), 2389/2014 (X v. Denmark), 2393/2014 (K v. Denmark) and 2395/2014 (J.N.G.P. v. Uruguay). A number of cases submitted by individuals who claimed to be at risk if forcibly returned to their countries of origin were declared inadmissible as not sufficiently substantiated, including cases Nos. 2351/2014 (R.G. et al. v. Denmark), 2357/2014 (A v. Denmark), 2366/2014 (X. v. Canada), 2402/2014 (A.A.I. and A.H.A. v. Denmark) and 2426/2014 (N. v. Denmark). In case No. 2284/2013 (F.M. v. Canada), for instance, the Committee held that, for purposes of admissibility, the author had failed to sufficiently substantiate his argument under article 13 of the Covenant relative to his claim that he was unable to advance the reasons why he should not be deported or to have his case reviewed by a competent authority. The Committee took note of the State party’s argument that the author was afforded an opportunity to submit and challenge evidence concerning his removal, to have his asylum application reviewed on several occasions by the competent authorities, such as the Refugee Protection Division and the Federal Court, and to use the relevant administrative procedures, including the pre-removal risk assessment and the application for residency on humanitarian and compassionate grounds. Consequently, the Committee considered that the author had not sufficiently substantiated his claim for purposes of admissibility and therefore the claim was inadmissible under article 2 of the Optional Protocol.

Competence of the Committee with respect to the evaluation of facts and evidence (Optional Protocol, art. 2) A specific form of lack of substantiation is represented by cases where the author invites the Committee to re-evaluate issues of fact and evidence addressed by domestic courts. The Committee has repeatedly recalled its jurisprudence that it is not for it to substitute its views for the judgement of the domestic courts on the evaluation of facts and evidence in a case, unless the evaluation is manifestly arbitrary or amounts to a denial of justice. If a jury or court reaches a reasonable conclusion on a particular matter of fact in the light of the evidence available, the decision cannot be held to be manifestly arbitrary or to amount to a denial of justice. Claims involving the re-evaluation of facts and evidence have thus been declared inadmissible under article 2 of the Optional Protocol. This was true for cases Nos. 2005/2010 (Hicks v. Australia), 2072/2011 (V.S. v. New Zealand), 2122/2011 (M.A.B. v. Argentina), 2344/2014 (E.P. and F.P. v. Denmark), 2358/2014 (G.C.A.A. v. Uruguay), 2437/2014 (V.S. v. Lithuania) and 2621/2015 (J.P.D. v. France).

Inadmissibility for incompatibility with the provisions of the Covenant (Optional Protocol, art. 3) In case No. 1982/2010 (Mikhalchenko v. Belarus), the Committee noted the author’s submission that the State party had violated its obligations under article 2 (2) of the Covenant, read in conjunction with article 19, since it failed to adopt such laws or other measures as may be necessary to give effect to the rights recognized in article 19 of the Covenant. The Committee recalled its jurisprudence, which indicates that the provisions of article 2 of the Covenant set forth a general obligation for States parties and cannot give rise, when invoked separately, to a claim in a communication under the Optional Protocol. The Committee held that the provisions of article 2 cannot be invoked as a claim in a communication under the Optional Protocol in conjunction with other provisions of the Covenant, except when the failure by the State party to observe its obligations under article 2 is the proximate cause of a distinct violation of the Covenant directly affecting the individual claiming to be a victim. The Committee noted, however, that in the present case the author had already alleged a violation of her rights under article 19, resulting from the interpretation and application of the existing laws of the State party, and the Committee did not consider that examination of whether the State party also violated its general obligations under article 2 (2) of the Covenant, read in conjunction with article 19, to be distinct from examination of the violation of the author’s rights under article 19 of the Covenant. The Committee therefore concluded that the author’s claims in that regard were incompatible with article 2 of the Covenant and inadmissible under article 3 of the Optional Protocol. In case No. 2016/2010 (Sudalenko v. Belarus), the author claimed that his rights under article 14 (1), read in conjunction with article 2 (2) and (3), of the Covenant had been violated as a result of the refusal by domestic courts to consider his claim on the unlawfulness of decision No. 299 of 2 April 2008 of the Gomel City Executive Committee on mass events, restricting all mass events in Gomel to a single, remote location. The Committee noted that under the national legislation, the legality of laws can be verified only by the Constitutional Court, not by the courts of general jurisdiction; and that the initiation of proceedings before a judicial body which manifestly lacks jurisdiction to deal with a matter cannot trigger a violation of the guarantees provided under article 14 (1) of the Covenant. The Committee therefore concluded that the author’s claim was inadmissible ratione materiae under article 3 of the Optional Protocol. In case No. 2214/2012 (Lumbala v. Democratic Republic of Congo), the Committee noted the author’s allegation that the State party had not met its obligations under articles 7 and 9, read in conjunction with article 2 (2), of the Covenant inasmuch as it had not enacted legislation or taken measures to give effect to the rights acknowledged in those provisions. The Committee recalled again its jurisprudence that the provisions of article 2 cannot, in and of themselves, give rise to a claim in a communication under the Optional Protocol and that they cannot be invoked jointly with other provisions of the Covenant in a communication under the Optional Protocol, except when the failure by the State party to observe its obligations under article 2 is the proximate cause of a distinct violation of the Covenant directly affecting the individual who claims to be a victim. In the case at hand, the Committee considered that the author had not sufficiently substantiated the claim that examination of the question of whether the State party violated its general obligations under article 2 (2), read in conjunction with articles 7 and 9, would be distinct from examining a violation of the author’s rights under articles 7 and 9, read alone and in conjunction with article 2 (3), of the Covenant. Therefore, the Committee considered that the author’s claims in this regard were incompatible with article 2 of the Covenant and thus inadmissible under article 3 of the Optional Protocol. In cases Nos. 2288/2013 (Omo-Amenaghawon v. Denmark) and 2344/2014 (E.P. and F.P. v. Denmark), the Committee noted the authors’ claim that the decisions of the Refugee Appeals Board were final and could not be appealed before the national courts; and that this constituted a violation of article 14 of the Covenant. The Committee referred to its jurisprudence according to which proceedings relating to the expulsion of aliens do not fall within the ambit of a determination of “rights and obligations in a suit at law” within the meaning of article 14 (1), but are governed by article 13 of the Covenant. Article 13 offers some of the protection afforded under article 14 of the Covenant, but not the right of appeal. The Committee therefore considered that the authors’ claims under article 14 were inadmissible ratione materiae pursuant to article 3 of the Optional Protocol. In case No. 2422/2014 (Z v. Denmark), where the author claimed that his deportation to Armenia would violate his rights under article 26 of the Covenant, the Committee recalled its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm such as that contemplated by articles 6 and 7 of the Covenant. Under the particular circumstances of the case, the Committee did not consider examination of whether the State party violated article 26 to be distinct from examination of the violation of the author’s right under article 7 of the Covenant. The Committee therefore considered that the author’s claims in this regard were incompatible with article 2 of the Covenant, and inadmissible under article 3 of the Optional Protocol. In case No. 2631/2015 (J.G. v. New Zealand), where the author claimed that the decision to deport him constituted a violation of article 14(7) of the Covenant, the Committee noted that the ne bis in idem principle as protected by this provision prohibits States from trying someone for the same offence for which he/she has already been tried and sentenced. It observed that, in the circumstances of the present case, the decision to proceed with the deportation of the author was a measure of administrative nature independent of his conviction and sentence under criminal law for drug-related crimes. Thus, it could not be seen as constituting an additional punishment for the criminal offences the author had committed. Accordingly, the Committee considered that the author’s claim did not raise any issue under article14 (7) of the Covenant and concluded that the communication was inadmissible ratione materiae under article 3 of the Optional Protocol. Similarly, in case No. 2437/2014 (V.S. v. Lithuania), the Committee held that article 14(7) did not bar criminal prosecution of an individual on the sole ground that a civil claim concerning the same act or acts had been brought against him. Hence, the author’s claim under this provision that a criminal case and a civil lawsuit were brought against him on the same facts was declared inadmissible ratione materiae under article 3.

Inadmissibility for abuse of the right to submit a communication (Optional Protocol, art. 3) Under article 3 of the Optional Protocol, the Committee can declare inadmissible any communication which it considers to be an abuse of the right to submit communications. The question of abuse has often been raised in connection with communications where several years have elapsed between the exhaustion of domestic remedies and the submission of the communication to the Committee. Case 2399/2014 (C.L.C.D. et al. v. Colombia), for instance, was declared inadmissible for this reason. In case No. 2134/2012 (Serna and others v. Colombia), concerning enforced disappearances, the State party alleged that the communication was inadmissible on the ground that it was submitted 16 years after the last decision of the domestic authorities, which amounted to an abuse of the right to submit communications. The Committee observed that the communication was submitted to it on 1 September 2011 and that rule 96 (c) of its rules of procedure concerning time limits to submit communications is applicable to communications received by the Committee after 1 January 2012. The Committee further observed that the Optional Protocol does not establish time limits within which a communication should be submitted and that the period of time elapsing before such a submission, other than in exceptional circumstances, does not in itself constitute an abuse of the right to submit a communication. In the meantime, the Committee applies its jurisprudence which allows for finding an abuse where an exceptionally long period of time has elapsed before the submission of the communication without sufficient justification. In determining what constitutes an excessive delay, each case must be decided on its own merits. The authors argued that the violation still persists, on account of the lack of official information on the fate and whereabouts of the disappeared persons and the consequent absence of truth, justice and redress. The Committee noted that the authors filed numerous legal and administrative complaints between March 1995 and January 2011, but these complaints did not result in any clarification of the circumstances in which their relatives disappeared or in any action to locate their remains or to determine responsibility for their disappearance. In the light of this, the Committee considered that the communication was admissible under article 3 of the Optional Protocol.

Inadmissibility because the same matter has been or is being examined under another procedure of international investigation or settlement (Optional Protocol, art. 5 (2) (a)) In a number of communications decided during the period under review the question was raised as to whether the communication should be declared inadmissible because the same matter had been or was being examined under another procedure of international investigation or settlement. In case No. 2621/2015 (J.P.D. v. France), the Committee held that the same matter had, for the purpose of the reservation entered by the State party on article 5, paragraph 2(a) of the Optional Protocol, already been considered by the European Court of Human Rights. Consequently, the Committee was precluded from examining the communication. Case No. 2183/2012 (M.G. v. Poland), was declared inadmissible under article 5(2)(a), as the same matter was being examined by the European Court. In case No. 2474/2014 (X v. Norway), the Committee noted that the European Court of Human Rights had declared the author’s application inadmissible. The Committee noted, however, that the Court’s decision did not set forth a justification for the inadmissibility finding and that there was no clarification as to the basis of the decision. Furthermore, the State party did not challenge the author’s argument concerning the non-preclusive effect of the decision of the European Court. The Committee therefore considered that it was not precluded by article 5 (2) (a) from examining the communication. In case No. 2193/2012 (K.B. v. Russian Federation), the Committee observed that the author presented an application on the same events before the European Court of Human Rights. However, the Court informed the author by letter that the material before it did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. The Committee recalled that, in ratifying the Optional Protocol, the State party did not introduce a reservation excluding the competence of the Committee in relation to cases that had been examined under another procedure of international investigation or settlement. Accordingly, the Committee concluded that it was not precluded by article 5 (2) (a) of the Optional Protocol from examining the communication. In case 2038/2011(Tharu and others v. Nepal), the Committee reiterated its jurisprudence that extra-conventional procedures or mechanisms established by the United Nations Commission on Human Rights or the Human Rights Council, and whose mandates are to examine and report publicly on human rights situations in specific countries or territories, or cases of widespread human rights violations worldwide, do not generally constitute an international procedure of investigation or settlement within the meaning of article 5 (2) (a) of the Optional Protocol. Accordingly, the Committee considered that it was not precluded from examining the communication under this provision, despite the fact that some of the authors had reported their cases to the Working Group on Enforced or Involuntary Disappearances.

The requirement of exhaustion of domestic remedies (Optional Protocol, art. 5 (2) (b)) Pursuant to article 5 (2) (b), of the Optional Protocol, the Committee shall not consider any communication unless it has ascertained that the author has exhausted all available domestic remedies. However, it is the Committee’s constant jurisprudence that the rule of exhaustion applies only to the extent that those remedies are effective and available. The State party is required to give details of the remedies which it submitted had been made available to the author in the circumstances of his or her case, together with evidence that there would be a reasonable prospect that such remedies would be effective. Furthermore, the Committee has held that authors must exercise due diligence in the pursuit of available remedies. Mere doubts or assumptions about their effectiveness do not absolve the authors from exhausting them. In case No. 1902/2009 (Bakur v. Belarus), the Committee noted that the State party had challenged the admissibility of the communication for non-exhaustion of domestic remedies on the grounds that the author did not appeal before the Prosecutor’s Office the decision of the Supreme Court under the supervisory review procedure which confirmed his sentence for breach of the Law on Mass Events. The Committee recalled its jurisprudence that filing requests for supervisory review to the President of a court against court decisions which have entered into force and depend on the discretionary power of a judge constituted an extraordinary remedy, and that it is up to the State party to show that there is a reasonable prospect that such requests would provide an effective remedy in the circumstances of the case. The Committee also recalled its jurisprudence, according to which a petition to a Prosecutor’s Office to initiate the procedure to review court decisions that have taken effect does not constitute a remedy which has to be exhausted for the purposes of article 5 (2) (b) of the Optional Protocol. The Committee maintained this position in cases Nos. 1969/2010 (Surgan v. Belarus), 1982/2010 (Mikhalchenko v. Belarus), 1984/2010 (Pugach v. Belarus), 1988/2010 (Evrezov v. Belarus), 1996/2010 (Kruk v. Belarus), 2011/2010 (Romanovsky v. Belarus), 2016/2010 (Sudalenko v. Belarus), 2017/2010, (Burdyko v. Belarus), 2019/2010 (Poplavny v. Belarus), 2047/2011 (S.V. v. Belarus), 2076/2011 (Derzhavtsev v. Belarus), 2078/2011 (Amanklychev v. Turkmenistan) and 2133/2012 (Statkevich et al v. Belarus). In case No. 2052/2011 (Akmatov v. Kyrgyzstan), the Committee further found that the State party had not shown the extent to which petitions to the Supreme Court for supervisory review procedures had been applied successfully in cases concerning effective investigation of torture claims. In such circumstances, the Committee considered that article 5 (2) (b) of the Optional Protocol did not preclude it from considering the communication. In case No. 2141/2012 (Arkadyevich v. Russian Federation) he Committee held that the State party had not shown whether and in how many cases petitions to the president of the Supreme Court for supervisory review procedures were applied successfully in cases concerning the right to a fair trial or freedom of expression. It therefore considered that it was not precluded by articles 2 and 5 (2) (b) of the Optional Protocol from examining the communication. A similar conclusion was reached in case No.1941/2010 (Neporozhnev v. Russian Federation). In case No. 2366/2014 (X. v. Canada), concerning the deportation of the author to Bangladesh, the Committee noted that the author had a pending humanitarian and compassion application and that the State party considered this to be an effective remedy. While noting the State party’s observations that the humanitarian and compassion application could allow the author to reside permanently in Canada and that two recent communications before the Committee were discontinued because humanitarian and compassion applications were granted, the Committee noted that the author’s removal to Bangladesh had not been stayed during the consideration of his humanitarian and compassion application and therefore considered that this application could not be considered as offering him an effective remedy under the circumstances. Accordingly, the Committee considered that it was not precluded by article 5(2)(b) of the Optional Protocol from examining the communication. During the period under review other communications or specific claims were declared inadmissible for failure to exhaust domestic remedies, including in cases Nos. 2044/2011 (T.V. and A.G. v. Uzbekistan), 2060/2011 (W.M.G. v. Canada), 2072/2011 (V.S. v. New Zealand) and 2428/2014 (I.A.A. et al v. Denmark).

The right to an effective remedy (Covenant, art. 2 (3)) In case No. 2038/2011 (Tharu and others v. Nepal), concerning the enforced disappearances of the authors’ relatives, the Committee recalled the importance it attaches to the establishment by States parties of appropriate judicial and administrative mechanisms for addressing claims of rights violations. General comment No. 31 provides, inter alia, that a failure by a State party to investigate allegations of violations could, in and of itself, give rise to a separate breach of the Covenant. In this case, the Committee observed that, shortly after the detention of the authors’ relatives, the authors approached different police offices and Army barracks seeking information, and later filed writs of habeas corpus before the Supreme Court and complained to the National Human Rights Commission. Despite the authors’ efforts, no thorough and effective investigation had been concluded by the State party to elucidate the circumstances surrounding their relatives’ detention and alleged deaths, and no criminal investigation had even been started to bring the perpetrators to justice. The State party had failed to explain the effectiveness and adequacy of investigations carried out by the Ministry of Home Affairs Disappearances Committee and the concrete steps taken to clarify the circumstances of their detention or the cause of their alleged deaths. It had also failed to locate their mortal remains and return them to the authors’ families. Therefore, the Committee considered that the State party had failed to conduct a thorough and effective investigation into the disappearance of the authors’ relatives. Additionally, the amount of money received by the authors as interim relief did not constitute an adequate remedy commensurate to the serious violations inflicted. Accordingly, the Committee concluded that the facts before it revealed a violation of article 2 (3), in conjunction with articles 6 (1), 7, 9 and 16, with regard to the authors’ relatives; and article 2 (3), read in conjunction with article 7 of the Covenant, with respect to the authors. In case No. 2077/2011 (A.S. v. Nepal), the Committee observed that, despite the author’s efforts and legal proceedings in the Kathmandu district and appellate courts and in the Supreme Court to seek redress, no thorough and effective investigation had been concluded by the State party in order to establish the facts surrounding his detention, and no criminal proceedings had ever been started to bring the perpetrators to justice. Therefore, the Committee considered that the State party had failed to conduct a thorough and effective investigation into the torture and ill-treatment, unlawful arrest and detention and continuous harassment to which the author was subjected, and to bring any appropriate criminal proceedings against the perpetrators. Additionally, the 20,000 rupees received by the author as compensation for having been tortured did not constitute an adequate reparation commensurate with the seriousness of the violations inflicted. Accordingly, the Committee concluded that the facts before it also revealed a violation of article 2 (3), read in conjunction with articles 7, 9 (1), (2) and (5), 10 (1) and 17 of the Covenant. In case No. 2134/2012 (Serna and others v. Colombia), the Committee observed that the authors attributed the lack of any effective and rigorous investigation into the enforced disappearances specifically to the absolute lack of any investigation of paramilitary groups operating in the area with the acquiescence of the armed forces. The Committee further observed that although the authors had submitted numerous reports and requests for information to the various police, criminal and administrative authorities with competence for the case since March 1995, they had so far received no official information about the fate or whereabouts of their disappeared family members. Moreover, the State party had not provided convincing arguments to justify its delay in completing the investigation and bringing those responsible to justice. In the light of the foregoing, the Committee considered that the State party had not provided an effective remedy to the authors in respect of the disappearance of their family members, and that the actions in question constituted a violation of article 2, paragraph 3, read in conjunction with articles 6, 7, 9 and 16. In case No. 2143/2012 (Dovadzija v. Bosnia and Herzegovina),the Committee noted the State party’s information that it had made considerable efforts in view of the more than 30,000 cases of enforced disappearance that occurred during the conflict. Notably, the Constitutional Court had established that the authorities were responsible for investigating the disappearance of the applicants’ relatives, including Mr. Dovadžija, and domestic mechanisms had been set up to deal with enforced disappearances and other war crimes cases. Without prejudice to the continuing obligation of States parties to investigate all dimensions of an enforced disappearance, including bringing those responsible to justice, the Committee recognized the particular difficulties that a State party may face in investigating crimes that may have been committed on its territory by hostile forces. Therefore, while acknowledging the gravity of the disappearances and the suffering of the authors because the fate or whereabouts of their missing husband and father had not yet been clarified and the culprits had not yet been brought to justice, that in itself was not sufficient to find a breach of article 2(3) of the Covenant in the particular circumstances of this communication. In case No. 2064/2011 (Mandic v. Bosnia and Herzegovina), the author claimed that his father, Božo Mandić, disappeared in 1992 and that, according to an eyewitness, he was arbitrarily killed and an official of the Bosnian Territorial Defence Army ordered the witness to bury the corpse. The Committee noted the author’s claim that the facts occurred within the context of a widespread and systematic attack directed against the civilian population and that it is therefore reasonable to presume that his father became a victim of an extrajudicial execution by the Bosnian Territorial Defence Army. No ex officio prompt, impartial, thorough and independent investigation has been carried out by the State party to clarify his fate and whereabouts and to bring the perpetrators to justice. Although the acts of the Bosnian Territorial Defense Army are not directly attributable to the State party, the Committee noted the authors’ claim that these acts were committed in the State party’s territory by the Bosnian Defense Territorial Army and that the State party remains under an ongoing obligation to locate, exhume, identify and return the victim’s mortal remains to the family as well as to identify, prosecute and sanction those responsible for the crimes. In this connection, the Committee, as in the previous case, recognized the difficulties that a State party may face in investigating crimes that may have been committed on its territory during a complex armed conflict in which multiple forces were involved. Therefore, while acknowledging the gravity of the alleged crimes and the suffering of the author because the location of the remains of his missing father has not yet been clarified and the culprits have not yet been brought to justice, that in itself is not sufficient to find a breach of article 2 (3) of the Covenant in the circumstances of the communication. The Committee noted that the first time the author was contacted by the authorities regarding his father’s case was in February 2007, almost 15 years after the relevant events when, the Office of the Cantonal Prosecutor sent the author a letter stating that exhumations had been carried out in Lukavička Road between September and November 1998, and noting the similarity between his father’s case and another case. The author claimed that after this letter, he did not receive additional information from the Cantonal Prosecutor’s Office or the Bosnia and Herzegovina Prosecutor’s Office on the progress of the investigation, despite having requested updated information on several occasions. The Committee also noted that there was a lack of coordination among the State party’s authorities in carrying out the investigation. The Committee considered that the authorities investigating violations such as summary and arbitrary killings and enforced disappearances must be diligent so as to ensure the effectiveness of the investigation. Authorities investigating such violations must give the families a timely opportunity to contribute their knowledge to the investigation and information regarding the progress of the investigation must be made promptly accessible to the families. The Committee also noted the anguish and distress caused to the author by the continuing uncertainty resulting from not knowing where his father’s remains may be and the impossibility, if he is deceased, of burying him in accordance with his faith. Accordingly, the Committee concluded that the facts revealed a violation of article 6, read in conjunction with article 2(3), of the Covenant with regard to Božo Mandić. In case No. 2052/2011 (Akmatov v. Kyrgyzstan), the Committee recalled its consistent jurisprudence that criminal investigation and consequential prosecution are necessary remedies for violations of human rights such as those protected by articles 6 (1) and 7 of the Covenant. The Committee noted that the investigation into the allegations of torture and the subsequent death were not carried out promptly and effectively and that no suspects were identified, despite a number of incriminatory witness accounts. In the absence of a plausible explanation by the State party on the discrepancies in the findings relating to different stages of the criminal investigation and the reason why none of the alleged perpetrators were ever charged or prosecuted despite the detailed allegations levelled against them, the Committee concluded that the State party failed to properly investigate the circumstances of the author’s son’s death and the allegations of torture and ill-treatment and hence denied the author’s son an effective remedy, in violation of his rights under article 2 (3), read in conjunction with articles 6 (1) and 7. In case No. 2234/2013 (M.T. v. Uzbekistan), the Committee noted the author’s allegations that the State party had failed to investigate promptly and efficiently her torture allegations. It recalled that it attaches importance to States parties’ establishing appropriate judicial and administrative mechanisms for addressing claims of rights violations. In its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, the Committee stated that a State party’s failure to investigate alleged violations could in and of itself give rise to a separate breach of the Covenant. In the absence of any thorough explanation from the State party as to the investigation into the author’s torture allegations, the Committee considered that the State party’s competent authorities did not give due and adequate consideration to the author’s complaints. The Committee concluded that the information before it disclosed a violation of article 2 (3), read in conjunction with article 7 of the Covenant. In case No. 2214/2012 (Lumbala v. Democratic Republic of Congo), the Committee noted the author’s allegation that articles 7 and 9 of the Covenant, read in conjunction with article 2 (3), were violated given the lack of an effective remedy against these violations. Three years went by between the author’s detention and the submission of the communication to the Committee without any prompt, rapid inquiry having been conducted. The Committee noted that the author, by way of a letter dated 17 December 2008, filed a complaint for arbitrary detention; that the complaint was filed again, with an additional claim of torture, on 23 January 2009; that letters following up on those complaints were sent on 11 March and 17 June 2009 and 4 April 2011 to the Attorney General but received no reply; and that, on 24 June 2011, counsel for the author sent a follow-up letter to the Ministry of Justice and Human Rights. The Committee noted that the State party did not provide any explanation for the lack of measures to remedy the alleged violations. The Committee therefore concluded that the State party had violated the author’s rights under articles 7 and 9, read in conjunction with article 2, paragraph 3, of the Covenant.

Right to life (Covenant, art. 6) In case No. 2017/2010 (Burdyko v. Belarus), the author claimed a violation of his right to life under article 6 of the Covenant, since he was sentenced to death after an unfair trial. The Committee recalled its general comment No. 6 (1982) on the right to life, in which it noted that the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant, implies that the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal. In the same context, the Committee reiterated its jurisprudence that the imposition of a sentence of death upon conclusion of a trial in which the provisions of article 14 of the Covenant have not been respected constitutes a violation of article 6 of the Covenant. In the light of the Committee’s findings of a violation of article 14 (d) and (g) of the Covenant, especially in the light of the author’s unrefuted allegations of torture and ill-treatment to force him confess guilt, what served as a basis for his conviction, it concluded that the final sentence of death and the subsequent execution of Mr. Burdyko did not meet the requirements of article 14 and that, as a result, his right to life under article 6 of the Covenant had also been violated. A similar finding was made in case No. 2289/2013 (Selyun v. Belarus) In case No.2052/2011 (Akmatov v. Kyrgyzstan), the Committee noted the author’s claim that his son died as a result of the ill-treatment and torture he suffered in police custody, being in good physical and mental health before being taken into custody, and that he was not given access to a lawyer while in custody. The Committee also noted the irrefutable evidence of multiple autopsies and examinations that were conducted, which showed that numerous bruises, lacerations and abrasions to the head, chest and fingers were inflicted on the victim. The examinations also revealed serious injuries to the brain, lung, kidneys and spleen caused by “blunt, hard objects”. The Committee also took note of the author’s claims regarding the inadequate investigation into allegations of torture in police custody, and of the death of the author’s son as a result. Although the State party argued that its investigative authorities questioned more than 60 witnesses and conducted four forensic examinations, it conceded that the initial stages of the investigation were carried out in a manner that was superficial, that the investigation itself lasted more than four years, that the evidence was improperly recorded and that, ultimately, the investigation was discontinued. The Committee recalled its General comment No. 6 (1982) on the right to life and its jurisprudence, according to which States parties, by arresting and detaining individuals, take the responsibility to care for their life, and that criminal investigation and subsequent prosecution are necessary remedies for violations of human rights such as those protected by article 6 of the Covenant. It further recalled its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, that where investigations reveal violations of certain Covenant rights, such as those protected under articles 6 and 7, States parties must ensure that those responsible are brought to justice. Although the obligation to bring to justice those responsible for a violation of articles 6 and 7 is an obligation of means, not of result, States parties have a duty to investigate in good faith and in a prompt and thorough manner all allegations of serious violations of the Covenant made against it and its authorities. The Committee observed that the State party had failed to explain exactly what happened to Turdubek Akmatov during the considerable time when he was in police custody. The State party had simply noted that the police officers conducted “prophylactic work” with the victim, without providing any details as to what this “work” might have entailed. The State party provided no records of questioning, interrogation or statements in relation to the victim and no copies of statements made by police officers and other witnesses. In the light of the inability of the State party to rely on a deficient and inconclusive investigation to rebut the author’s allegations that his son was killed due to beatings he sustained while in custody, and in the light of the information contained in the medical forensic expert opinions, which are consistent with the author’s version of events, the State party was found responsible for the arbitrary deprivation of Turdubek Akmatov’s life, in breach of article 6 (1) of the Covenant. In case No. 2395/2014 (J.N.G.P. v. Uruguay), the author who had been sentenced to 25 years’ imprisonment claimed that given his advanced age and frail health, the denial of house arrest was a violation of articles 6 and 7 of the Covenant. The Committee noted that the author was not being held in an ordinary prison but rather for the past three years had been serving his sentence in the Military Hospital. The author had not claimed to the Committee that the care and medical treatment there were inadequate, or adduced any convincing evidence that might so indicate, and had not explained why his life or integrity would be at less risk under house arrest. Nor had he claimed that the authorities wished to transfer him to prison. Consequently, and given the particular circumstances of the case, the Committee did not have sufficient information to find a violation of articles 6 and 7 of the Covenant. The Committee found violations of article 6 and other articles of the Covenant in cases of enforced disappearances, as follows. In case No. 2048/2011 (Kadiric v. Bosnia and Herzegovina), the Committee observed that it was not disputed that Ermin Kadirić was apprehended and taken from his house by soldiers of the Bosnian Serb forces (VRS), that Ms. Kadirić saw that her husband was captured and subjected to severe ill-treatment over a number of hours together with other men and that, at a certain point, the soldiers ordered the captured men to run and started to shoot at them. One and a half days later, Ms. Kadirić left the house and located Ermin Kadirić’s dead body among the others. Nonetheless, she was not able to recover his mortal remains at that time, as she had to run away to protect herself from snipers. Upon her return, the body had been removed. The authors’ accounts were also confirmed by the statements of two witnesses presented by Ms. Kadirić before the Municipal Court in Sanski. Despite the authors’ efforts to recover their relative’s remains and their requests for an investigation to the authorities of the State party, the location of the body remains unknown. Although the acts of VRS are not directly attributable to the State party, the Committee noted the authors’ claim that these acts, together with the subsequent removal and concealment of Ermin Kadirić’s remains, were committed in the State party’s territory by VRS and that the State party remains under an ongoing obligation to locate, exhume, identify and return the victim’s mortal remains to the family, as well as to identify, prosecute and sanction those responsible for the crimes concerned. In this connection, the Committee recognized the particular difficulties that a State party may face in investigating crimes that may have been committed on its territory by hostile forces. Therefore, while acknowledging the gravity of the alleged crimes and the suffering of the authors resulting from the State party’s failure to locate the remains of their missing husband and father and bring the culprits to justice, that in itself was not sufficient to find a breach of article 2(3), of the Covenant in the particular circumstances of the present communication. That being said, the State party had failed to provide the Committee with specific and relevant information concerning the steps taken to pursue the investigation into the arbitrary detention, ill-treatment and extrajudicial execution of Ermin Kadirić and to locate his mortal remains and return them to his family. The State party had also provided very limited and general information to the authors regarding their relative’s case. The Committee considered that authorities investigating certain violations, such as torture and cruel, inhuman and degrading treatment, summary and arbitrary killing and enforced disappearance, must give the families a timely opportunity to contribute their knowledge to the investigation, and that information regarding the progress of the investigation must be made promptly accessible to the families. It also took note of the anguish and distress caused to the authors by the continuing uncertainty resulting from the removal and concealment of their relative’s remains. Accordingly, the Committee concluded that the facts before it reveal a violation of articles 6, 7 and 9, read in conjunction with article 2(3), of the Covenant with regard to Ermin Kadirić; and of article 7, read alone and in conjunction with article 2(3), of the Covenant with regard to the authors. In case No. 2143/2012 (Dovadzija v. Bosnia and Herzegovina), the Committee determined that the State party had failed to provide the authors or the Committee with specific and relevant information concerning the steps taken to establish Mr. Dovadžija’s fate and whereabouts, and to locate his mortal remains, in case of his death. The Committee concluded that the facts before it reveal a violation of articles 6, 7 and 9 read in conjunction with article 2(3) of the Covenant with regard to the authors’ husband and father who disappeared in 1992. In case No. 2038/2011 (Tharu and others v. Nepal), the Committee observed that in 2002, when the alleged disappearance took place, the authors received contradictory information concerning their relatives’ detention by different police offices and Army barracks and that, within the habeas corpus proceedings before the Supreme Court, the Ministry of Defence, the Ministry of Home Affairs, the Bardiya District Administrative Office and the Bardiya District Police Office, among other authorities, denied having arrested or detained their relatives. Later, on 25 July 2006, the Ministry of Home Affairs Royal Nepalese Army, concluded that Dhaniram, Chillu, Mohan, Kamala, Lauti, Soniram and Radhulal had been killed on 11 April 2002 in crossfire with the security forces in the nursery area of Manau. No information had been provided as to the fate and whereabouts of Prem Prakash. The State party did not, however, challenge the authors’ allegation that the authorities did not undertake a thorough investigation and that it gave full credence to the information provided by the Human Rights Cell of the Army, which did not rely on any supporting evidence. The Committee also observed that the mortal remains of the authors’ relatives have not been returned to the families and no information has been provided by the authorities as to the location of the remains or the efforts that may have been undertaken to return them, thus keeping the authors in constant uncertainty. Against this background, the Committee considered that the State party had not explained the specific circumstances of the alleged death of the authors’ relatives, nor had it produced evidence to indicate that it had fulfilled its obligation to protect their lives. Accordingly, the Committee concluded that the State party had failed in its duty to protect the lives of the authors’ relatives, in violation of article 6 of the Covenant. In case No. 2134/2012 (Serna and others v. Colombia), the Committee noted the authors’ claims relating to the enforced disappearance on 9 March 1995 of their two relatives in an area that was under the control of paramilitary forces at the time, specifically on a road controlled by the group Autodefensas Campesinas del Magdalena Medio. According to the extensive information provided by the authors and available as well from bodies of the United Nations human rights system, the State party encouraged the establishment of “self-defence” groups — according them legal recognition — to assist law enforcement bodies in fighting insurgents and provided them subsequently with training, weapons, logistical support and, in some instances, active involvement by the military in their operations. The Committee also noted that enforced disappearance was a widespread practice used by paramilitary groups beginning in 1988, with the complicity of the Colombian armed forces, according to a broad range of information from national and international sources, including the Working Group on Enforced or Involuntary Disappearances, and available to the Committee. The authors pointed out that the group Autodefensas Campesinas del Magdalena Medio controlled parts of the Middle Magdalena region, including the Medellín-Bogotá motorway where the disappearance took place, and that the group operated with the acquiescence of the Colombian army, which had provided training, weapons and cover for the group’s actions. The Committee observed that the State party provided no information refuting the involvement of paramilitary groups in the reported disappearances or the link of these groups with the military. It noted as well the failure of the investigative authorities to exercise due diligence in response to the numerous complaints filed by the authors, as no investigation of Autodefensas Campesinas del Magdalena Medio was launched despite the fact that the events coincided with the area, time and mode of action of that group. In view of the foregoing, the Committee found that the authors had provided sufficient evidence, not refuted by the State party, that the enforced disappearances of the authors’ relatives were attributable to the Colombian State. The Committee recalled that, while the Covenant does not explicitly use the term “enforced disappearance” in any of its articles, enforced disappearance constitutes a unique and integrated series of acts that represents continuing violation of various rights recognized in the Covenant. Furthermore, 21 years had passed since the disappearance without the State party making the least progress in its investigations, despite numerous reports and appeals presented by the authors and indications that the enforced disappearances took place at the hands of identified paramilitary groups. In the light of the foregoing, and in the general context of violations of human rights that occurred, particularly in the form of enforced disappearance, at the time and place of the events, as indicated in the extensive information provided by the authors, the Committee considered that the State party had violated the rights of the authors’ relatives under articles 6, 7 and 9 of the Covenant. In case No. 2288/2013 (Omo-Amenaghawon v. Denmark), the Committee noted the author’s claims under article 6 and 7 of the Covenant that, if returned to Nigeria, she would be at risk of being killed or tortured. She argued that she was a victim of human trafficking and was forced to work as a prostitute in Denmark; that she testified against her traffickers in criminal proceedings in a Danish court; and she was allegedly threatened by her traffickers and a close relative of one of them, who lives in Nigeria. The Committee also noted the State party’s arguments, inter alia, that the author’s allegations about an alleged risk of harm by persons linked to the human trafficking network was vague and lacked details; and that reports from States and NGOs indicated that the Nigerian authorities were actively fighting against human trafficking and its consequences, including for female victims of human trafficking who had returned and taken up residence in Nigeria. The Committee recalled its jurisprudence in which it states that significant weight should be given to the assessment conducted by the State party, and that it is generally for the organs of States parties to the Covenant to review or evaluate facts and evidence in order to determine whether the risk of harm on return to one’s country of origin exists, unless it is found that the evaluation was clearly arbitrary or amounted to a denial of justice. In the present case, the Committee observed that the State party had not challenged the fact that the author was a victim of human trafficking by Mr. P.B. and Ms. B.O., and that they were tried and imprisoned after the author had reported them to the police and testified against them before the court. It also observed that the denials of her asylum requests by the Refugee Appeals Board focused mainly on the lack of concrete details of the her allegations about the risk to her safety that her aggressors’ relatives and persons related to human trafficking in Nigeria represented. In making that assessment, the Board referred in a general fashion to measures taken by the Nigerian authorities to fight against human trafficking and to provide assistance to victims. However, the Committee was of the view that, in the particular circumstances of the author’s case, the State party had failed to take into due consideration the special vulnerability of persons (in this case, the author) who have been subjected to human trafficking, which often lasts for several years even after they have been rescued or are able to free themselves from their aggressors, and the author’s particular status as witness in the criminal proceedings against her aggressors. The State party had also not taken into due consideration the specific capacity of the Nigerian authorities to provide the author, in her particular circumstances, with protection to guarantee that her life and physical and mental integrity would not be at serious risk. Therefore, in the circumstances, the Committee considered that the author’s deportation to Nigeria would constitute a violation of her rights under articles 6 and 7 of the Covenant. In case No. 2060/2011 (W.M.G. v. Canada), concerning the deportation of the author to Zimbabwe, the author alleged that his life would be at risk upon return to Zimbabwe owing to his HIV-positive status and the alleged lack of access to medical care and medication. The Committee observed that it was not disputed that medical treatment for persons who are HIV-positive and antiretroviral medications were available in Zimbabwe, through public services or private entities. Nevertheless, the author alleged that he would not be able to obtain immediate access to antiretroviralmedications in Zimbabwe or afford to pay for themby himself, since he would be unemployed, and that he had no close relatives in Zimbabwe on whose support he could rely. The Committee observed, however, that the author had provided mainly general information about the economic situation in the country and the difficulties in getting access to medical treatment for HIV, as well as inconsistent information about his family in Zimbabwe, which did not allow it to ascertain the extent to which he could count on family support. Furthermore, he decided, by his own choice, not to undergo any antiretroviral treatment available in the State party until his migration status had become clear. In the light of the foregoing, the Committee considered that the author had not shown that his life or physical and mental integrity were at imminent and direct risk as a result of his removal to Zimbabwe, and that the State party’s authorities took his health situation into consideration and made the necessary inquiries before implementing the expulsion decision. Accordingly, the Committee found that the author’s removal to Zimbabwe did not constitute a violation of his rights under articles 6(1) and 7 of the Covenant.

Right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Covenant, art. 7) The Committee found violations of this provision in a high number of communications, such as cases Nos. 2078/2011 (Amanklychev v. Turkmenistan), 2099/2011 (Polskikh v. Russian Federation), 2231/2012 (Askarov v. Kyrgyzstan) and 2289/2013 (Selyun v. Belarus). Below are some examples of the Committee’s findings. In case No. 1941/2010 (Neporozhnev v. Russian Federation), the Committee recalled that once a complaint about ill-treatment contrary to article 7 has been filed, a State party must investigate it promptly and impartially. Taking into consideration the contradictory information and the absence of an official conclusion of the investigation into the author’s torture allegations, the Committee considered that, in the circumstances of the case, the State party had failed to demonstrate that its authorities adequately and efficiently addressed the torture allegations advanced by the author, in the context of both domestic criminal proceedings and proceedings before the Committee. Accordingly, due weight had to be given to the author’s allegations. The Committee therefore concluded that the facts before it disclosed a violation of the rights of the author under article 7 of the Covenant. In case No. 2005/2010 (Hicks v. Australia), the author, a former prisoner at the United States Naval Base in Guantanamo Bay, alleged that, from the time he was taken into United States custody in Afghanistan in December 2001 until his transfer to Australia on 20 May 2007 as a result of a transfer agreement, he was the victim of violations of his rights under the Covenant, including article 7. The Committee noted that, as the claims he submitted to the Committee were against Australia, even if related to alleged violations of his rights prior to his return to Australia, the Committee was to determine whether Australia exercised any jurisdiction over the author while he was in the custody of the United States. The Committee noted the author’s allegations that: (a) the State party negotiated directly with the United States concerning the trial standard that would apply to the author; (b) the State party made various representations to the Government of the United States seeking to improve the protection available to the author and secured the release of another Australian detained at Guantanamo Bay; (c) the author received 21 visits from Australian officials and police officers while he was in the custody of the United States, where Australian agents interviewed him to gather intelligence that was later used against him in the control order proceedings before the Australian courts; (d) Australia was aware of the conditions of the plea agreement struck with the prosecution, which required the author to cooperate with the Australian authorities and contained other clauses that favoured Australia; (e) the author brought the treatment he had suffered to the attention of the Australian authorities who interviewed him and Australia requested the United States authorities to conduct an investigation into the allegations. In the Committee’s view, it appeared from these facts, which were not contested by the State party, that the State party had some influence over the way the United States treated the author and was in a position to take positive measures to ensure that the author was treated in a manner consonant with the Covenant, including to take measures intended to remedy violations of his rights. However, the Committee considered that the influence held by the State party cannot be seen as amounting to the exercise of power or effective control over the author, who was detained in a territory controlled by the United States that was not under the sovereignty or jurisdiction of the State party. The Committee therefore concluded that, for the duration of the time that he spent in the custody of the United States, the author could not be considered to be under the State party’s “jurisdiction” in the sense of article 1 of the Optional Protocol and article 2 (1) of the Covenant. As a result, the Committee was precluded ratione loci from pronouncing on the author’s claims under articles 2 and 7 of the Covenant, which pertained to his treatment while in the custody of the United States. In case No. 2077/2011 (A.S. v. Nepal), the Committee took note of the author’s unrefuted allegations that he was tortured by police officers during his detention. On the basis of the information at its disposal, including three medical reports and the decisions of three domestic courts recognizing that torture had been inflicted on the author, the Committee found that the treatment to which the author was subjected by police officers, with the aim of intimidating him and with lasting consequences, amounted to a violation of article 7. In case No. 2214/2012 (Lumbala v. Democratic Republic of Congo), the Committee noted the allegations that, during the interrogations that were carried out over a seven-day period, the author was beaten severely, including being kicked and struck with a revolver in the groin and upper thighs; that he was regularly subjected to having metal clamps attached to his testicles and tongue, to choking and to blows to the lower abdomen; that, during one of the interrogations, a guard lifted the author by the throat and then attached a clamp to his tongue; that he was forced to witness the rape of the prisoner who was sharing his cell and that he himself was then raped by the guards; and that each morning he was forced to submerge his head in a bucket of urine. The Committee noted as well that these acts reportedly continued to the point that the author had to be hospitalized and that they were committed by agents of the National Intelligence Agency. Lastly, the Committee noted that the evidence of torture and the symptoms developed by the author as described in a forensic medical report prepared in the United Kingdom and dated 25 August 2009 corroborate these allegations. In the absence of any information from the State party in that regard, the Committee found a violation of article 7 of the Covenant with respect to the author. In case No. 2221/2012 (Hudaybergenov v. Turkmenistan), where the author was sentenced to imprisonment following his refusal to perform military service, the Committee took note of the author’s claim that he was ill-treated by the prison staff while in the LBK-12 prison; that he was beaten on different parts of his body on at least in two occasions, including his face and his head; that he was once kicked in the chest; and that he was often beaten with a wire on his back. The Committee further noted the author’s allegation regarding the lack of adequate mechanisms for investigating torture and ill-treatment in the State party. The State party did not refute these allegations, nor provided any information in this respect. In the circumstances, the Committee gave due weight to the author’s allegations and concluded that the facts as presented revealed a violation of the author’s rights under article 7. The Committee reached a similar conclusion in case No. 2222/2012 (Hudaybergenov v. Turkmenistan). In case No. 2297/2013 (Chani v. Algeria), the Committee noted that the author was held incommunicado for 20 days, during which time he was kept in isolation and deprived of all contact with his family, a doctor or counsel. The Committee further noted the author’s claim that he suffered torture during his incommunicado detention from 17 September to 6 October 2009; that officers of the Intelligence and Security Department subjected him to five or six interrogations per day, during which he was systematically slapped, kicked, punched, choked and spat at; and that, on several occasions, he was forced to strip by the officers, who urinated on him when he asked to take a shower. The Committee noted that the State party confined itself to denying these allegations on the pretext that only the author made such claims, when in fact the record of the hearing before the investigating judge of one of his co-accused, contained similar allegations. The Committee further noted that, during the proceedings, the author repeatedly denounced the torture to which he had been subjected. Given the failure to investigate these allegations and the absence of any conclusive evidence, other than a medical report that is not sufficient to establish whether the author underwent a thorough medical examination at the end of his period in police custody, and whose probative value had been called into question by the author, the Committee found that the State party violated article 7 of the Covenant, read alone and in conjunction with article 2, paragraph 3. In case No. 2324/2013 (Mellet v. Ireland), where the author claimed to have been victim of violation of her rights under the Covenant as a result of the legal prohibition of abortion, the Committee held that the fact that a particular conduct or action is legal under domestic law does not mean that it cannot infringe article 7 of the Covenant. By virtue of the existing legislative framework, the State party subjected the author to conditions of intense physical and mental suffering. The author, as a pregnant woman in a highly vulnerable position after learning that her wanted pregnancy was not viable, and as documented, inter alia, in the psychological reports submitted to the Committee, had her physical and mental anguish exacerbated by: not being able to continue receiving medical care and health insurance coverage for her treatment from the Irish health care system; the need to choose between continuing her non-viable pregnancy or travelling to another country while carrying a dying foetus, at personal expense and separated from the support of her family, and to return while not fully recovered; the shame and stigma associated with the criminalization of abortion of a fatally ill foetus; the fact of having to leave the baby’s remains behind and later having them unexpectedly delivered to her by courier; and the State’s refusal to provide her with necessary and appropriate post-abortion and bereavement care. Many of the described negative experiences she went through could have been avoided if the author had not been prohibited from terminating her pregnancy in the familiar environment of her own country and under the care of the health professionals whom she knew and trusted; and if she had been afforded needed health benefits that were available in Ireland, were enjoyed by others, and she could have enjoyed had she continued her non-viable pregnancy to deliver a stillborn child in Ireland. The Committee considered that the author’s suffering was further aggravated by the obstacles she faced in receiving needed information about her appropriate medical options from known and trusted medical providers. The abortion Information Act legally restricts the circumstances in which any individual may provide information about lawfully available abortion services in Ireland or overseas, and criminalizes advocating or promoting the termination of pregnancy. The Committee further noted the author’s unrefuted statement that the health professionals did not deliver such information in her case, and that she did not receive key medically indicated information about the applicable restrictions on overseas abortions and the types of terminations most appropriate given her period of gestation, thereby disrupting the provision of medical care and advice that the author needed and exacerbating her distress. The Committee additionally noted, as stated in General Comment No. 20, that the text of article 7 allows of no limitation, and no justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any reasons. Accordingly, the Committee considered that, taken together, the above facts amounted to cruel, inhuman or degrading treatment in violation of article 7 of the Covenant. In case No. 2017/2010 (Burdyko v. Belarus), the Committee noted the author’s claims under articles 7 and 14 (3) (g) of the Covenant that he was subjected to physical and psychological pressure to force him to confess guilt in a number of crimes and that his forced confessions served subsequently as a basis for the establishment of his guilt and his conviction by the courts. The Committee also noted that those allegations had not been refuted by the State party. In that regard, the Committee recalled that, once a complaint about ill-treatment contrary to article 7 has been filed, a State party must investigate it promptly and impartially. It further recalled that the safeguard set out in article 14 (3) (g) of the Covenant must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt. The Committee noted that, despite clear signs that the author was tortured and complaints by his mother and the author himself in this connection, the State party had not presented any information to demonstrate that its authorities had conducted an effective investigation into those specific allegations. In the circumstances, the Committee decided that due weight should be given to the author’s allegations and concluded that the facts before it disclosed a violation of the author’s rights under articles 7 and 14 (3) (g) of the Covenant. In case No. 2052/2011 (Akmatov v. Kyrgyzstan), the Committee took into consideration the fact that the findings of the autopsies and medical forensic examinations that were conducted were consistent with other evidence, suggesting that the author’s son was subjected to acts of torture. In the circumstances of the case and in the light of the inability of the State party to rely on a deficient and inconclusive investigation to rebut the author’s allegations that his son was tortured while in police custody, due weight should be given to the author’s allegations. The Committee therefore concluded that the facts before it disclosed a violation of the rights of the victim under article 7 of the Covenant. In case No. 2234/2013 (M.T. v. Uzbekistan), the Committee noted that the author provided a detailed account of the different types of persecution to which she was subjected, and her description was supported by detailed and well-documented evidence. The author formally complained to various authorities regarding those violations. The State party did not refute the allegations, but merely stated that the verifications conducted could not confirm the author’s allegations and accused the author of having presented “invented and biased” allegations. The Committee noted in particular the State party’s submission that the sterilization of the author “could not have been performed without her consent”, but considered that this cannot be taken as a credible denial of the author’s allegation regarding the forced nature of the medical procedure to which she was subjected. In that regard, the Committee recalled that, once a complaint about ill-treatment contrary to article 7 has been filed, a State party must investigate it promptly and impartially, that the State party is responsible for the security of all persons held in detention and that, when there are allegations of torture and mistreatment, it is incumbent on the State party to produce evidence refuting the author’s allegations. In the absence of any thorough explanation from the State party, the Committee has to give due weight to the author’s allegations, particularly to allegations of sexual abuse, a form of extreme gender-based violence. Accordingly, the Committee concluded that the facts before it disclosed multiple grave violations of the prohibition of torture and of the author’s rights under article 7 of the Covenant. In case No. 2044/2011 (T.V. and A.G. v. Uzbekistan), the Committee found that the authors’ involuntary hospitalization for nine days in a psychiatric hospital, for allegedly disturbing the work of the President of the Quarter’s Committee with their numerous complaints, amounted to inhuman and degrading treatment or punishment within the meaning of article 7. The Committee found that the authors’ committal to the psychiatric hospital was the result of an arbitrary and illegal decision and had no proper medical justification, and that such decision appeared to be driven by the desire to punish or humiliate the authors for exercising their right to complain. In case No. 2233/2013 (F.J. et al v. Australia), the Committee considered that the combination of the arbitrary character and indefinite nature of the authors’ protracted detention, the refusal to provide information and procedural rights to the authors and the difficult conditions of detention cumulatively inflicted serious psychological harm upon them, and constituted treatment contrary to article 7 of the Covenant. The Committee found violations of article 7 in a number of cases involving enforced disappearances. Thus, in case No. 2038/2011 (Tharu and others v. Nepal), the Committee took note of the authors’ allegations that the detention and subsequent enforced disappearance of their relatives amount per se to treatment contrary to article 7. The Committee recognizes the degree of suffering involved in being held indefinitely without contact with the outside world and recalled its general comment No. 20 on article 7, which recommends that States parties should make provision to ban incommunicado detention. In the present case, in the absence of a satisfactory explanation from the State party, the Committee found that the enforced disappearance of the authors’ relatives constituted a violation of article 7 of the Covenant. The Committee also took note of the anguish and stress caused to the authors by the disappearance of their relatives, in particular the fact that the authors and their families had never received sufficient explanation concerning the circumstances surrounding their alleged deaths, nor had they receive their remains. In the absence of a satisfactory explanation from the State party, the Committee considered that these facts revealed a violation of article 7 with respect to the authors themselves. A similar conclusion was reached by the Committee in case No. 2134/2012 (Serna and others v. Colombia). In case No. 2143/2012 (Dovadzija v. Bosnia and Herzegovina), the Committee noted the authors’ claim that they had been victims of revictimization throughout the 20 years of their struggle to clarify the fate and whereabouts of their husband and father. In this connection, the Committee noted various examples: (a) at the time of the first exhumations carried out in 1996 in Žuč, the Sakiba Dovadžija was convinced that she had identified one of the bodies as being her husband’s, however, the authorities did not take into account her request to have it properly identified using reliable technical methods, because the same body had supposedly been identified previously by another person; (b) even though she reiterated on various occasions her availability to do so, Sakiba Dovadžija was never called by State authorities to provide additional information on the disappearance of her husband, and the information she provided was never followed up; and (c) the authorities of the State party in charge of determining the victims’ entitlements to monthly pensions concluded on two occasions that Mr. Dovadžija had deserted the army of Bosnia and Herzegovina, without providing any evidence to that effect. Ms. Dovadžija’s claim for a monthly allowance was rejected on the basis of that conclusion, which was never corroborated. On the contrary, the Committee noted that the conclusion is contradicted by various pieces of evidence attesting that Mr. Dovadžija was captured by the Vojska Republike Srpske and disappeared in that context. The Committee considered that those revictimizing circumstances, together with the lack of information as to the fate and whereabouts of Mr. Dovadžija, amounted to inhuman and degrading treatment in violation of article 7, read alone and in conjunction with article 2(3) of the Covenant with respect to the authors. In case No. 2064/2011 (Mandic v. Bosnia and Herzegovina), regarding the enforced disappearance of the author’s father, the Committee noted the author’s claim that he had been revictimized throughout the years and noted various examples of lack of care or seriousness on the part of State authorities regarding the investigation: (a) on 13 December 2011, the author received a letter from the State Investigative and Protection Agency stating that the DNA of a body exhumed by the Office of the Cantonal Prosecutor matched his father’s. However, Agency officials later apologized, indicating that the earlier statement had been a mistake and that there was no DNA match; (b) the lack of coordination between Bosnia and Herzegovina authorities, which led to delays and confusion; (c) the lack of an adequate follow-up to the information provided by the author in relation to the possibility that the body was buried as N.N. in the Visoko cemetery. The Committee considered that these revictimizing circumstances, together with the lack of information as to the fate and whereabouts of the author’s father amounted to inhuman and degrading treatment in violation of article 7, read alone and in conjunction with article 2(3), of the Covenant with respect to the author. Claims of violations of article 7 were examined by the Committee in a number of cases concerning expulsion or extradition to countries where the authors might be at risk of being subjected to torture, as described below. In case No. 2329/2014 (Z v. Denmark), concerning the removal of the author to the Islamic Republic or Iran, the Committee recalled its jurisprudence that important weight should be given to the assessment conducted by the State party, and that it is generally for the organs of States parties to the Covenant to review or evaluate facts and evidence in order to determine whether such a risk exists, unless it is found that the evaluation was clearly arbitrary or amounted to a denial of justice. In this connection, the Committee observed that the Refugee Appeals Board, in reaching its decisions took note of the allegations raised by the author before the State party’s authorities, including in the interviews with the Danish National Police and the Danish Immigration Service, and of the documentation submitted by the author in support of his claims, but the Board concluded that there were no substantive grounds for asylum, as his accounts were considered to be unlikely and fabricated for the occasion. In the absence of evidence establishing that the decisions of the Refugee Appeals Board were manifestly unreasonable or arbitrary with respect to the author’s allegations, the Committee could not conclude that the information before it showed that the author’s removal to the Islamic Republic of Iran would expose him to a real risk of treatment contrary to article 7 of the Covenant. A similar conclusion was reached in cases Nos. 2193/2012 (K.B. v. Russian Federation), concerning the author’s extradition to Kyrgyzstan; 2280/2013 (Y v. Canada), concerning the author’s removal to Sri Lanka; 2284/2013 (F.M. v. Canada), concerning the author’s removal to Chad; 2314/2013 (Y v. Canada), concerning the author’s removal to Sri Lanka; 2327/2014 (Y v. Canada), concerning the author’s removal to Bangladesh; 2347/2014 (K.G. v. Denmark), concerning the author’s removal to Sri Lanka; 2366/2014 (X. v. Canada), concerning the author’s removal to Bangladesh; 2422/2014 (X v. Denmark), concerning the author’s removal to Armenia; and 2474/2014 (X v. Norway), concerning the author’s removal to Afghanistan. In case No. 2258/2013 (Rasappu v. Denmark), concerning the removal of the authors to Sri Lanka, the Committee observed that the Danish Immigration Service examined ex officio whether special residence permits should be given to the authors as unaccompanied minors under section 9c (3) (ii) of the Aliens Act; that the Ministry of Justice confirmed the Immigration Service decision of 27 February 2013, when the authors were 20 years old, not to grant them special residence permits; that the authors had not provided information regarding the nature and severity of their alleged psychological difficulties; and that the authors had not shown that they had necessary family or medical support in the State party that they could not receive in their country of origin. The Committee also observed, inter alia, that although the authorities did not refute the claim that the father of the authors had been an active member of LTTE, they denied the authors’ request for asylum mainly because their father was not a high-profile member of LTTE and his affiliation with it had ended years earlier. The Refugee Appeals Board referred to these findings when rejecting the authors’ request for reopening the asylum proceedings on 29 August 2013. However, the Committee observed that current reports in the public domain concerning the human rights situation in Sri Lanka, as well as those to which the parties referred indicated that, despite the change in conditions in the country, human rights violations, including torture, continued to occur and that, inter alia, certain individuals of Tamil ethnicity suspected of having links to LTTE, such as persons with family links or dependent on or otherwise closely related to former LTTE combatants, “cadres” or former LTTE supporters who may never have undergone military training, may be in need of international protection. In the light of the information provided by the authors, the information presently available to the Committee and the record of human rights violations in Sri Lanka, the Committee considered that the authorities of the State party had not given appropriate consideration to the claim of the authors that they would be at risk of being subjected to torture or ill-treatment if removed to Sri Lanka as a result of the previous affiliation of their father with LTTE, the fact that they were taken away by this organization in 2009 and the events that the authors went through prior to their departure from Sri Lanka. Under these circumstances, the Committee was of the view that the removal of the authors in the absence of further consideration of their claim would put them to a real risk of irreparable harm such as that contemplated in article 7 of the Covenant. In case No. 2343/2014 (H.E.A.K. v. Denmark), concerning the deportation of the author to Egypt, the Committee examined the author’s claim that he would be at risk in his country of origin as one of the founders of a soccer fan club called Ultras Ahlawy and the political involvement of the club during the events in the country in 2011.The Committee noted, inter alia, the evidence by the author in the form of an Arabic-language online video purporting to depict the former Vice-President of the Egyptian Football Association in which he stated that Ultras Ahlawy was a terrorist group, contemplating that Ultras Ahlawy should be banned as it was purportedly an ally in terrorism with the Muslim Brotherhood, and that the Government of Egypt should stop the Ultras Ahlawy. The Committee also noted that the designation of Ultras Ahlawy as a terrorist group had not been contested by the State party and that the State party failed to address in its replies the impact of such designation on the risk for the author upon his return to Egypt. Since the author reliably indicated that he could be perceived as having a close link with the Ultras Ahlawy group, which he co-founded, and on whose activities the Government of Egypt had repeatedly tried to clamp down, the Committee considered that the author had sufficiently substantiated his claim that the State party’s authorities had failed in the duty to duly assess the risk faced by him in case of return to Egypt, and thus the initial risk assessment by the State party was to be considered unreasonable. The Committee therefore considered that, in the specific circumstances of the case, the facts as submitted revealed the existence, for the author, of a personal risk to be subjected to torture or ill-treatment if removed to Egypt, in violation of his rights under article 7 of the Covenant. In case No. 2370/2014 (A.H. v. Denmark), concerning deportation of the author to Afghanistan, the Committee took note, inter alia, of the author’s assertions that, due to his former work in fighting drug-related crime, in close cooperation with several English-speaking agencies, he was at great risk of being exposed to serious harm and abuse, even death, by the Taliban in Afghanistan, in particular due to his assistance in securing the arrest of two Taliban-affiliated drug lords. The Committee also noted the author’s claim that, due to his past work, the author belonged to several risk groups under the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan of 6 August 2013, and that this fact was conceded by the State party. The Committee further noted the author’s assertions that, in the context of his past work, he was the victim of an abduction attempt and received written threats, and his brother was kidnapped and killed. These allegations were not specifically refuted by the State party. The Committee also noted the author’s assertions about his fears of the Afghan authorities, who reportedly believed that he was a supporter of Christianity because of a video recording in which he compares Christianity with Islam, although the State party pointed to the lack of evidence about the exact circumstances and time of production of the video in question. The Committee further noted the author’s allegations that neither the Danish Immigration Service nor the Board initiated any investigation as to the veracity and validity of the evidence produced in support of his detailed allegations. The Committee was of the view that the facts as presented, read in their totality, including the information on the author’s personal circumstances, such as his past experience in combating drug-related crimes which implicated Taliban-affiliated drug lords, the threats to the author and his family prior to his deportation to Afghanistan, the absence of comprehensive and objective verification by the State party’s authorities of the evidence submitted by the author in support of his claims, and the unstable state of his mental health, which the Board identified in its decision of 17 March 2014 and which had likely rendered him particularly vulnerable, disclosed a real risk for the author of treatment contrary to the requirements of article 7 of the Covenant as a consequence of his removal to Afghanistan, which was not given sufficient weight by the State party’s authorities. Accordingly, the Committee was of the view that, by removing the author to Afghanistan, the State party had violated its obligations under article 7 of the Covenant. In case No. 2393/2014 (K. v. Denmark), the Committee noted the author’s argument that, if returned to Afghanistan, he would risk being subjected to ill-treatment by the Taliban and the local population for having worked for five years as an interpreter for the United States military forces in Afghanistan, which would immediately garner him classification as a traitor. He claimed that he received several threats while in Afghanistan from the Taliban, from his cousins and from the local population. The author also invoked a report by the Danish Immigration Service that recognized that interpreters working for international forces can be at risk of being targeted by the Taliban. The State party has challenged the admissibility and substance of that claim, and considered the author’s statements regarding the alleged threats received before his departure from Afghanistan to be inconsistent and implausible on several grounds. The Committee noted that the Danish Refugee Appeals Board thoroughly examined each of the author’s claims, and particularly analysed the alleged threats allegedly received by the author in Afghanistan, and found them to be inconsistent and implausible on several grounds. The author challenged the assessment of evidence and the factual conclusions reached by the Board, but he did not explain why that assessment would be arbitrary or otherwise amount to a denial of justice. The Committee took note of the author’s claim that he would be at a general risk of being targeted by the Taliban. However, it considered that the author had failed to provide substantial grounds to support that he would be exposed to a personal risk if returned to Afghanistan, based solely on his past experience as an interpreter for the United States forces. Therefore, the Committee considered that the author has not justified that his return to Afghanistan would expose him to irreparable harm in violation of article 7 of the Covenant. In case No. 2389/2014 (X v. Denmark), concerning the deportation of the author to the Islamic Republic of Iran, the Committee considered that the author’s membership of the Kurdistan Freedom Party, together with his previous participation in activities of the Democratic Party of Iranian Kurdistan and Komala, did indeed present a risk that he would be considered or suspected by the Iranian authorities of being a member or supporter of Kurdish political groups and that, as such, he would be at risk of treatment contrary to article 7 of the Covenant if returned to the Islamic Republic of Iran. The personal risk faced by the author should be assessed in the light of a combination of his political profile and other personal circumstances, such as his birth in the Al-Tash refugee camp, his later residence in the Barika refugee Camp and the fact that he had no identity documents and did not speak Farsi. None of these circumstances was sufficient in itself to substantiate a real risk of being subject to torture or ill-treatment in the Islamic Republic of Iran. Nonetheless, the State party should have considered them in their combination, together with the documented prevalence of torture in the Islamic Republic of Iran. The Committee therefore considered that the removal of the author to the Islamic Republic of Iran would constitute a violation of article 7 of the Covenant. In case No. 2360/2014 (Jasin v. Denmark), the Committee noted the author’s claim that deporting her and her three minor children to Italy, based on the Dublin Regulation principle of “first country of asylum”, would expose them to the risk of irreparable harm, in violation of article 7 of the Covenant. The author based her arguments on, inter alia, the actual treatment she received after she was granted a residence permit in Italy in September 2008 and on the general conditions of reception for asylum seekers and refugees entering Italy, as found in various reports. After her initial four-month stay in a reception center in Sicily, she and her eldest daughter were granted subsidiary protection and a residence permit valid for three years. The day after the residence permit was issued, the author was informed that she could no longer stay in the centre and was thus left without shelter and means of subsistence. She left Italy and went to the Netherlands, but was returned to Italy in September 2009 with her minor child, and was again left to fend for herself without any social or humanitarian assistance from the Italian authorities, even though she held a valid residence permit, including during her pregnancy. Owing to her state of indigence and vulnerability, she was unable to renew her Italian residence permit. In 2011, she went to Sweden, then to Denmark where she requested asylum in June 2012. The Committee noted the finding of the Refugee Appeals Board that Italy should be considered the “country of first asylum” and the position of the State party that the country of first asylum is obliged to provide asylum seekers with certain social and economic elements in accordance with basic human standards, although it is not required that such persons have exactly the same social and living standards as nationals of the country. It noted that the State party also referred to a decision of the European Court of Human Rights which stated that, although the situation in Italy had shortcomings, it had not disclosed a systemic failure to provide support or facilities catering for asylum seekers. The Committee considered that the State party’s conclusion did not adequately take into account the detailed information provided by the author, who presented extensive information based on her own personal experience that, despite being granted a residence permit in Italy, on two occasions she was faced with indigence and extreme precarity. Furthermore, the State party did not explain how the Italian residence permit that the author was granted and which was now expired would protect her and her three minor children from hardship and destitution. The Committee recalled that States parties should give sufficient weight to the real and personal risk a person might face if deported and considered that it was incumbent upon the State party to undertake an individualized assessment of the risk that the author would face in Italy, rather than rely on general reports and on the assumption that, as she had benefited from subsidiary protection in the past, she would, in principle, be entitled to work and receive social benefits in Italy today. The Committee considered that the State party had failed to devote sufficient analysis to the author’s personal experience and to the foreseeable consequences of forcibly returning her to Italy. It had also failed to seek proper assurance from the Italian authorities that the author and her three minor children would be received in conditions compatible with their status as asylum seekers entitled to temporary protection and the guarantees under article 7 of the Covenant, by requesting that Italy undertake (a) to renew the author’s and her children’s residence permits and not to deport them from Italy; and (b) to receive the author and her children in conditions adapted to the children’s age and the family’s vulnerable status, which would enable them to remain in Italy. Consequently, the Committee considered that, under the circumstances, removal of the author and her three minor children to Italy on the basis of the initial decision of the Danish Refugee Appeals Board would be in violation of article 7 of the Covenant. In case No. 2409/2014 (Ali et al v. Denmark), the Committee noted the authors’ claim that deporting them and their two minor children to Italy on the basis of the Dublin Regulation principle of “first country of asylum” would expose them to the risk of irreparable harm, in violation of article 7 of the Covenant. The authors based their arguments on, inter alia, the actual treatment they received after they were granted residence permits in Italy and on the general conditions of reception for asylum seekers and refugees entering Italy, as found in various reports. The Committee recalled that States parties should give sufficient weight to the real and personal risk that a person might face if deported and considered that it was incumbent upon the State party to undertake an individualized assessment of the risk that the authors would face in Italy, rather than rely on general reports and on the assumption that, as they had benefited from subsidiary protection in the past, they would, in principle, be entitled to the same subsidiary protection today. The Committee considered that the State party failed to take into due consideration the special vulnerability of the authors who, notwithstanding their entitlement to subsidiary protection, faced homelessness and were not able to provide for themselves in the absence of any assistance from the Italian authorities, including the medical assistance needed for their newborn son. It had also failed to seek proper assurances from the Italian authorities that the authors and their two minor children would be received in conditions compatible with their status as asylum seekers entitled to temporary protection and the guarantees under article 7 of the Covenant, by requesting that Italy undertake: (a) to reissue or renew their residence permits and to issue residence permits to their children and not to deport them from Italy; and (b) to receive the authors and their children in conditions adapted to the children’s age and the family’s vulnerable status, which would enable them to remain in Italy. Consequently, the Committee considered that, under the circumstances, the removal of the authors and their two minor children to Italy on the basis of the decision of the Danish Refugee Appeals Board would be in violation of article 7 of the Covenant.

Liberty and security of person (Covenant, art. 9) In case No. 2214/2012 (Lumbala v. Democratic Republic of Congo), the Committee took note of the author’s allegations that, on 11 December 2008, he was arrested at his home by agents of the National Intelligence Agency without being served a warrant and without knowing the reasons for his arrest; that he was held in detention for seven days without being brought before a judge or allowed access to a lawyer; and that he was thus unable to file any action for remedy before a court to decide on the lawfulness of his detention. In the absence of any information from the State party refuting these allegations, the Committee concluded that the rights guaranteed to the author under article 9 of the Covenant had been violated. In case No. 2297/2013 (Chani v. Algeria), the Committee took note of the author’s allegations that he was arrested on 17 September 2009 and held incommunicado, without contact with the outside world, including counsel or his family, and that his detention in an unknown location was not subject to the oversight of the prosecutor’s office, a fact attested to by the lack of any procedural document from the public prosecutor prior to 6 October 2009, the date on which the author’s period in police custody ended. The Committee noted that, according to the author, the case file contains neither the grounds for his detention in police custody, nor the authorizations from the public prosecutor for the detention and its extension, which demonstrates that the author’s arrest and detention were arbitrary. The Committee also noted the State party’s failure to investigate the author’s alleged arbitrary arrest and incommunicado detention, despite the complaints he lodged. As the State party had not provided any explanation for the absence in the case file of information on the exact date of the author’s arrest, the grounds for the arrest and the legality of his detention, and in the absence of any investigation into the allegations, the Committee found that the State party violated article 9 of the Covenant, read alone and in conjunction with article 2, paragraph 3. In case No. 2234/2013 (M.T. v. Uzbekistan), the Committee noted the author’s claims that the State party failed to: promptly inform her of the reasons for her arrest and detention, contrary to article 9 (2) of the Covenant, and to bring her before a judge or enable her to challenge the legality of detention, contrary to, respectively, article 9 (3) and article 9 (4) of the Covenant; ensure her right to a fair trial by an independent and impartial court, contrary to article 14 (1); provide her with adequate time and facilities for the preparation of her defence and to communicate with her lawyers, contrary to article 14 (3) (b); and to allow for the procedural guarantees enshrined in article 14 (3) (e). When she was attacked, while holding pickets in May and August 2003, the authorities failed to adequately investigate the women attacking her and, on both occasions, the author was charged for holding an unlawful demonstration. Furthermore, the law enforcement authorities brought criminal charges against her for organizing an unlawful demonstration with regard to the pickets held by the author in May and August 2003, which restricted her freedom of assembly and the restrictions were not justified as they were neither in the interest of national security or public safety, nor necessary for the protection of public health, morals or rights and freedoms of others. The author also claimed that the author was detained, charged, indicted and later convicted and imprisoned for the establishment of an unregistered public organization, severely restricting her freedom of association. The Committee noted that the State party had not refuted these allegations specifically, but had only stated, in general terms, that no violations of the author’s rights have taken place in this case. In the circumstances, the Committee considered that due weight should be given to the author’s allegations. In the circumstances of the present case, the facts as presented by the author amounted to a violation of the author’s rights under articles 9 (1), (2) and (4), 14 (1) and (3) (b) and (e), 19 (2), 21 and 22 of the Covenant. In case No. 2077/2011 (A.S. v. Nepal), the Committee took note of the authors’ allegations that he was arrested and detained on 18 July 2007 without an arrest warrant; that he was never informed of the reason of his arrestor of the charges against him;and that he was never awarded compensation for his unlawful detention. In the absence of a response from the State party in this regard, the Committee considered that the arrest and detention of the author constituted a violation of his rights under article 9(1), (2) and (5) of the Covenant. In case No. 1902/2009 (Bakur v. Belarus), the Committee noted the author’s claim that his administrative apprehension, for participation in a public meeting of a political party, lasted 6 hours and 30 minutes and was never recorded. The State party submitted that the apprehension was lawful and that it was aimed at stopping the meeting which was not authorized by the local authorities, identifying the participants and preparing an official record against them. The Committee noted that the State party did not refute the author’s specific claim that his apprehension was not recorded and recalled that an arrest or detention may be authorized by domestic law and nonetheless be arbitrary. The notion of “arbitrariness” is not to be equated with being against the law, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality. The State party failed to demonstrate that the grounds for the author’s apprehension, namely, participation in a meeting held by a political party in private premises, were lawful, necessary and proportionate for the purposes of article 9 of the Covenant. In particular, the State party had not explained why it was necessary to detain the author after he had been identified and after the preparation of an official record. The Committee further noted that a person must not be arbitrarily detained because of the exercise of his freedom of expression. Accordingly, in the circumstances described and in the absence of any further pertinent information on file, the Committee considered that the author’s rights under article 9of the Covenant had been violated. The Committee found violations of article 9 in general in a number of cases of enforced disappearance. Thus, in case No. 2038/2011 (Tharu and others v. Nepal), the Committee took note of the authors’ allegations that their missing relatives were detained without an arrest warrant, that they were never brought before a judge or any other official authorized by law to exercise judicial power, and that they could not take proceedings before a court to challenge the lawfulness of their detention. In the absence of a State party’s response in this regard, the Committee considered that the detention of the authors’ relatives constituted a violation of their rights under article 9.

Right not to be subjected to arbitrary arrest or detention (Covenant, art. 9 (1)) In case No. 2005/2010 (Hicks v. Australia), the author claimed violations of his rights in connection with his detention at the United States Naval Base of Guantanamo Bay, his sentence to seven years of imprisonment by the United States Military Commission and his transfer to Australia under a transfer agreement to serve the last seven months of his sentence. The Committee noted that, as a result of the transfer arrangement, the author was transferred to Australia on 20 May 2007 to serve the remainder of the sentence imposed on him on 31 March 2007. The question before the Committee was whether, by keeping the author in prison until 29 December 2007 as a result of that arrangement, the State party violated his rights under article 9 (1) of the Covenant. The Committee observed that, by the time the transfer took place, there was abundant information in the public domain that raised serious concerns about the fairness of the procedures before the United States Military Commission and that should have been enough to cast doubts among Australian authorities as to the legality and legitimacy of the author’s sentence. Many of those concerns had been expressed by the Committee in its concluding observations on the second and third periodic reports of the United States, adopted on 27 July 2006 (CCPR/C/USA/C/3/Rev.1), and by the Committee against Torture in its concluding observations on the second periodic report of the United States, adopted in May 2006 (CAT/C/USA/CO/2). Albeit subsequent to the facts alleged, the ruling dated 18 February 2015 of the United States Court of Military Commission Review in favour of the author left no doubt as to the unfairness of the proceedings followed against him and that the offence that had given rise to his conviction was retrospective. Furthermore, through the visits made to the author at Guantanamo Bay by Australian officials and law enforcement officers, the State party was in a good position to know the conditions of the author’s trial. The Committee held that transfer agreements play an important role for humanitarian and other legitimate purposes, allowing persons who have been convicted abroad and agree to the transfer to come back to their own country to serve their sentence and benefit from, for instance, closer contact with their family. Under the Covenant, however, States parties cannot be bound to execute a sentence when there is ample evidence that it was handed down following proceedings in which the defendant’s rights were clearly violated. In the Committee’s view, giving effect, under a transfer agreement, to sentences resulting from a flagrant denial of justice constitutes a disproportionate restriction of the right to liberty, in violation of article 9(1) of the Covenant. The fact that, as a condition for his return, the individual in question accepted the conditions of the agreement is not decisive, given that it can be shown, in the present case, that the detention conditions and ill-treatment to which the author was subjected left him little choice. In such circumstances, it was for the State party to ensure that the terms of the transfer arrangement did not cause it to violate the Covenant. The Committee noted the author’s claim that the State party not only made no attempt to negotiate the terms of the transfer arrangement in a manner compatible with its obligations under the Covenant but also exercised a significant degree of influence over the formulation of the Plea Agreement upon which the author’s immediate return to Australia was contingent. The Committee also noted the State party’s contention that the author agreed to plead guilty because he perceived prison conditions in Australia to be more favourable. However, the Committee considered that, in order to escape the violations to which he was subjected, the author had no other choice than to accept the terms of the Plea Agreement that was put to him. It was therefore incumbent on the State party to show that it had done everything possible to ensure that the terms of the transfer arrangement that had been negotiated with the United States did not cause it to violate the Covenant, particularly as the author was one of its nationals. In the absence of such a showing, the Committee considered that, by accepting to give effect to the remainder of the sentence imposed under the Plea Agreement and deprive the author of his liberty for seven months, the State party violated the author’s rights under article 9(1) of the Covenant. In case No. 2078/2011 (Amanklychev v. Turkmenistan), the Committee noted the author’s claims that his rights under article 9 (1) were violated as he was unlawfully detained for four days, from 17 to 21 June 2006, in violation of the provisions of the Criminal Procedure Code of Turkmenistan. He was held in detention without being able to initiate any form of legal process through which his apprehension and the lawfulness of his detention could be reviewed and challenged and without his relatives being informed of his whereabouts, in violation of his rights under the Criminal Procedure Code. In the absence of any pertinent explanation from the State party, the Committee decided to give due weight to the author’s allegations and concluded that the facts as submitted disclosed a violation of article 9 (1). In case No. 2044/2011 (T.V. and A.G. v. Uzbekistan), concerning the involuntary hospitalization of the authors in a psychiatric institution, the Committee noted that the information submitted by the parties did not attest that the authors were incapable of taking care of themselves or that they had a mental impairment that could cause substantial harm to their health. Furthermore, the Committee considered that particular concern should be raised in relation to the fact that the authors were admitted to a psychiatric hospital even though they did not pose any danger whatsoever to themselves or others and that both spouses were committed at the same time. The Committee noted that, even though the right to liberty is not absolute, a detention of an individual is such a serious measure that it is justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest, which might require that the person concerned be detained. Consequently, the Committee found that the authors’ committal to the psychiatric hospital and holding there for nine days was unlawful and arbitrary under article 9 (1) of the Covenant. In case No. 2229/2012 (Nasir v. Australia), the author claimed that the mandatory minimum sentence imposed on him after having been found guilty for people smuggling violated his rights under article 9(1). The Committee noted the State party’s argument that the author’s conviction with the mandatory minimum sentence was necessary to achieve the legitimate objectives of punishing him and that the mandatory minimum sentence is necessary as a general deterrence against the crime of people smuggling and to ensure that courts consistently apply penalties commensurate with the seriousness of the crime. The Committee also noted the State party’s statement that the aggravated offence of people smuggling for which the author was found guilty involves serious risks to the lives of asylum seekers and that the minimum sentence is commensurate with the seriousness of the crime. The Committee recalled that article 9 expressly recognizes that individuals may be detained on criminal charges, that the Covenant is consistent with a variety of criminal sentencing schemes, and that convicted prisoners are entitled to have the duration of their sentences administered in accordance with domestic law. The Committee also recalled that the imposition of a draconian penalty of imprisonment for minor offences without adequate explanation and without independent procedural safeguards is arbitrary. In the present case, the author was tried and found guilty for the aggravated offence of people smuggling by the Supreme Court of Queensland. He was convicted and sentenced with the mandatory minimum penalty for this offence, which is five years imprisonment (three years non-parole). The statutory maximum penalty is 20 years imprisonment. The author’s pre-conviction detention was taken into account in sentencing and he was released from prison after the expiration of the three-year non-parole period of his sentence. In these circumstances and considering that the author’s conviction was the result of a proper legal process in which he was legally represented the Committee was not in a position to conclude that the length of his criminal detention was arbitrary and therefore concluded that it did not reveal a violation of article 9 (1). In case No. 2233/2013 (F.J. et al v. Australia), the Committee observed that the authors were kept in immigration detention from 2009 or 2010 to 2015, first under mandatory detention upon arrival and then as a result of adverse security assessments. Whatever justification there may have been for an initial detention, such as for purposes of ascertaining identity and other issues, the State party had not, in the Committee’s opinion, demonstrated on an individual basis that their continuous indefinite detention was justified. The State party had not demonstrated that other, less intrusive, measures could not have achieved the same end of compliance with the State party’s need to respond to the security risk that the authors were said to represent. Furthermore, the authors were kept in detention in circumstances where they were not informed of the specific risk attributed to each of them and of the efforts made by the Australian authorities to find solutions that would allow them to obtain their liberty. They were also deprived of legal safeguards allowing them to challenge effectively the grounds for their indefinite detention. For all these reasons, the Committee concluded that the detention of the authors was arbitrary and contrary to article 9(1) of the Covenant.

Right to be brought promptly before a judge (Covenant, art. 9, para. 3) In case No. 1950/2010 (Timoshenko v. Belarus), the Committee noted that, after the author’s arrest, his remand in custody was endorsed by the Deputy Prosecutor General on the same day. The Committee recalled its general comment No. 35, where it stated that it is inherent to the proper exercise of judicial power that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with, and that a public prosecutor cannot be considered as an officer authorized to exercise judicial power within the meaning of article 9 (3). Accordingly, the Committee concluded that, in the circumstances of the case, the author’s right under article 9 (3) of the Covenant to be promptly brought before a judge after his arrest on criminal charges had been violated. In case No. 2017/2010 (Burdyko v. Belarus), the Committee recalled that, in accordance with article 9 (3), any person arrested or detained on a criminal charge “shall be brought promptly before a judge or other officer authorized by law to exercise judicial power”. The Committee also recalled that while the exact meaning of ʻpromptlyʼ may vary depending on objective circumstances, delays should not exceed a few days from the time of arrest; that 48 hours is ordinarily sufficient to transport the individual and to prepare for the judicial hearing; and that any delay longer than 48 hours must remain absolutely exceptional and be justified under the circumstances. The Committee noted the author’s unchallenged allegations that he was apprehended on 14 October 2009, was officially placed in pretrial detention by the decision of a prosecutor on 21 October 2009 and was not brought before a judge until the beginning of the court trial on 30 March 2010. The Committee thus considered that the author had not been brought promptly before the judge or other officer authorized by law to exercise judicial power, as required by article 9 (3) of the Covenant. Furthermore, as stated in general comment No. 35, it is inherent to the proper exercise of judicial power that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with, and that a public prosecutor cannot be considered as an officer authorized to exercise judicial power within the meaning of article 9 (3). Accordingly, the Committee concluded that the facts revealed a violation of the author’s rights under article 9 (3) of the Covenant. A similar finding was made in case No. 2289/2013 (Selyun v. Belarus), In case No. 2229/2012 (Nasir v. Australia), regarding the author’s detention for people smuggling, the Committee recalled that the requirement that any person arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power pursuant to article 9 (3) applies even before formal charges have been asserted, so long as the person is arrested or detained on suspicion of criminal activity. Under section 147 of the Australian Migration Act 1958, if the Attorney-General considers that an unlawful non-citizen should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence, the Attorney-General may give a criminal justice stay certificate (CJSC). In light of this, the Committee found that from 6 May 2010, when the CJSC was issued, the author was held in immigration detention for the purpose of the administration of criminal justice without being brought promptly before a judge or other officer authorized by law to exercise judicial power. For these reasons the Committee concluded that the author’s rights under article 9 (3) were violated.

Right to take proceedings before a court regarding the lawfulness of detention (Covenant, art. 9 (4)) In case No. 1950/2010 (Timoshenko v. Belarus), the Committee noted that the author’s appeal to the Court of the Central District in Minsk concerning the Deputy Prosecutor General’s decision to place him in custody was submitted to the Office of the Prosecutor General on 30 December 2008. Under domestic law, the latter was obliged to transmit the author’s appeal to court within 72 hours after reception. Nevertheless, the appeal in question was transmitted to the court only on 9 January 2009. The Committee referred to its general comment No. 35, according to which the right to bring proceedings before a court apply from the moment of arrest and the adjudication of the case should take place as expeditiously as possible. In the light of this, the Committee considered that in the circumstances of the case, the delay of 10 days for the Office of the Prosecutor General to transmit the author’s appeal to court constituted a violation of the author’s rights under article 9 (4) of the Covenant. In case No. 2233/2013 (F.J. et al v. Australia), the authors’ claimed that their immigration detention could not be challenged under Australian law and that no court had jurisdiction to assess the substantive necessity of their detention. The Committee noted the State party’s argument that the authors could seek judicial review before the High Court of the legality of their detention and the adverse security assessment. In view of the High Court’s 2004 precedent in Al­Kateb v. Godwin declaring the lawfulness of indefinite immigration detention, and the absence of relevant precedents in the State party’s response showing the effectiveness of an application before the High Court in similar more recent situations, the Committee was not convinced that it was open to the Court to review the justification of the authors’ detention in substantive terms. Furthermore, the Committee noted that in the High Court’s decision of 5 October 2012 in the Plaintiff M47 case, the Court upheld the continuing mandatory detention of the refugee, demonstrating that a successful legal challenge need not lead to release from arbitrary detention. The Committee recalled its jurisprudence that judicial review of the lawfulness of detention under article 9(4) is not limited to mere compliance of the detention with domestic law, but must include the possibility to order release if the detention is incompatible with the requirements of the Covenant, in particular those of article 9(1). Accordingly, the Committee considered that the facts revealed a violation of article 9(4). In case No. 2229/2012 (Nasir v. Australia), concerning the author’s mandatory immigration detention, the Committee noted that the author was in detention for almost five months, without formal charges. The State party failed to explain why it took all this time before criminal charges were brought against him. The Committee further noted that during this period the author was deprived of legal safeguards allowing him to challenge the arbitrariness of his detention. In respect of the State party’s contention that the term “lawfulness” under article 9 (4) must be interpreted as meaning lawful under domestic law, the Committee recalled its long-standing jurisprudence that judicial review of the lawfulness of detention under article 9 (4) is not limited to mere compliance of the detention with domestic law, but must include the possibility to order release if the detention is incompatible with the requirements of the Covenant, in particular those of article 9 (1). For all these reasons and in the absence of further explanations by the State party, the Committee concluded that the author’s detention during this period of time was not justified, was arbitrary, in violation of article 9 (1) of the Covenant, and could not be challenged before a court, in violation of article 9 (4).

Right to compensation for unlawful arrest or detention (Covenant, art. 9(5)) In case No. 2036/2011 (Yusupova v. Russian Federation), the Committee noted the author’s claims that the State party violated her rights under article 9 (5), in that it failed to provide compensation for the 13 years of internment she and her family suffered when they were forcibly removed from their home city of Grozny in 1944and deported to Kazakhstan. The Committee also noted the State party’s argument that the author did not have a right to additional compensation as a victim of political repression because she was already receiving similar social benefits. The Committee recalled that under article 9 (5) of the Covenant, anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. As stated in its general comment No. 35 (2014) on liberty and security of the person, the remedy under article 9 (5) must not exist merely in theory, but must operate effectively and payment must be made within a reasonable period of time. The Committee noted that, in accordance with article 16 of Law No. 1761 on the rehabilitation of the victims of political repression, the author was entitled under domestic law to compensation for the repression that she suffered. However, according to article 10 of the law of the Astrakhan region on social benefits of certain categories of persons, social benefits can be provided only under “one justification”, and the competent authorities have interpreted this provision in such a way that the author was unable to obtain compensation in relation to the physical and moral harm she suffered for 13 years, thus denying her an enforceable right to compensation as set out in article 9 (5). The Committee therefore concluded that the facts revealed a violation of this provision. In case No. 2044/2011 (T.V. and A.G. v. Uzbekistan), concerning the involuntary hospitalization of the authors in a psychiatric institution, the Committee recalled that article 9 (4) entitles anyone who is deprived of his or her liberty by arrest or detention to take proceedings before a court, in order that the court may decide without delay on the lawfulness of the detention and order release if the detention is not lawful. The right applies to all detention by official action or pursuant to official authorization, including detention in connection within voluntary hospitalization. The right to bring proceedings applies in principle from the moment when an individual’s liberty is deprived and any substantial waiting period before a detainee can bring a first challenge to detention is impermissible. In this connection, the Committee noted that the authors were committed to a psychiatric hospital without any court order and that they were not served with any copy of a decision concerning the grounds for their involuntary hospitalization upon apprehension. Consequently, the authors had to wait until after their release before becoming aware of the possibility of, and actually pursuing, such an appeal. In the Committee’s view, the authors’ right to challenge their detention was rendered ineffective by the State party’s failure to serve the committal order on them prior to or during the initial period of their detention. Therefore, in the circumstances of the case, the Committee found a violation of article 9 (4) of the Covenant.

Treatment during imprisonment (Covenant, art. 10 (1)) In case No. 2077/2011 (A.S. v. Nepal), the Committee 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 and that they must be treated with humanity and respect for their dignity. In view of the undisputed allegations concerning the fact that the author was denied medical treatment for his injuries while in detention on 18 July 2007, that no food or water were provided to him for more than 20 hours, and that he was detained in crowded and unhealthy conditions, and in the absence of information or challenges from the State party in that regard, the Committee found a violation of article 10 (1). In case No. 2129/2012 (Esergepov v. Kazakhstan), the Committee noted the author’s claims that his rights under article 10 (1) were violated because in the course of investigation and legal proceedings and his incarceration he had no access to medical care and did not receive the treatment required for his illnesses. The Committee, however, noted the State party’s submission that the author received adequate medical care when required while he was in the investigative detention centre and while he was serving his sentence, and provided detailed information regarding the medical services and treatment provided to the author. In the light of this, the Committee considered that the facts before it did not permit it to conclude that the author’s rights under article 10(1) of the Covenant had been violated. In case No. 2214/2012 (Lumbala v. Democratic Republic of the Congo), the Committee noted the author’s allegations that he was held in detention at a centre of the National Intelligence Agency in deplorable conditions, spending seven days in different cells, with the one on the first day measuring 12 square metres, the next one measuring 3 square metres and then two others that were even smaller; that all the cells were permeated by a nauseating stench; that he had no access to food or water during the first two days of his detention; that he had a shared bucket to use as his only toilet; that he had no access to daylight; and that he had no access to medical care except on the last day of his detention, despite the acts of torture to which he had been subjected. It also noted the alleged failure of the State party to segregate between male and female prisoners and to protect their privacy and dignity. In view of the gravity of the allegations concerning the deplorable conditions of detention described, and in the absence of any information from the State party to refute them, the Committee concluded that there was a violation of article 10, paragraph 1, of the Covenant. In case No. 2221/2012 (Hudaybergenov v. Turkmenistan), the Committee noted the author’s claims concerning the deplorable prison conditions at the LBK-12 prison, including his placement upon arrival in quarantine for 10 days, the harsh climatic conditions the author was exposed to during an extremely hot summer and an extremely cold winter, and the fact that he was obliged to use the outdoor showers during winter, when it was very cold. The Committee noted that these allegations were not contested by the State party and that they were consistent with the findings of the Committee against Torture in its most recent concluding observations with regard to the State party. The Committee recalled that persons deprived of their liberty may not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; and that they must be treated in accordance with, inter alia, the Standard Minimum Rules for the Treatment of Prisoners. In the absence of any other pertinent information on file, the Committee decided that due weight must be given to the author’s allegations. Accordingly, the Committee found that confining the author in such conditions constituted a violation of his right to be treated with humanity and with respect for the inherent dignity of the human person under article 10 (1) of the Covenant. The Committee reached a similar conclusion in cases Nos. 2222/2012 (Hudaybergenov v. Turkmenistan) and 2223/2012 (Japparow v. Turkmenistan). In case No. 2231/2012 (Askarov v. Kyrgyzstan), the Committee noted that it was clear from the author’s account and from the multiple submissions by independent experts on file, that he was not able to receive proper medical treatment for the serious conditions from which he was suffering. In view of the fact the State party itself acknowledged the overcrowding in his place of detention, and taking into account the author’s detailed description of his health condition and lack of access to adequate medical care, the Committee concluded that the State party violated the author’s rights under article 10 (1). In case No. 2304/2013 (Mukhtar v. Kazakhstan), the Committee noted that the State party is under an obligation to observe certain minimum standards of detention, which include the provision of medical care and treatment for sick prisoners, in accordance with rule 22 of the Standard Minimum Rules for the Treatment of Prisoners. It was clear from the author’s account that he was not able to receive proper medical treatment from the authorities of the detention centre or, subsequently, while serving his sentence in prison. The Committee also noted the author’s allegations that he was denied access to his family and lawyers. The Committee found that confining the author in such conditions constituted a violation of his right to be treated with humanity and with respect for the inherent dignity of the human person under article 10 (1) of the Covenant.

Right to fair trial in the determination of criminal charges or rights and obligations in a suit at law (Covenant, art. 14 (1)) In case No. 2279/2013 (Zoltowski v. Australia), the Committee noted that the State party had not presented any justification for the delay in dealing with the author’s custody application or his application for access to his son, or in ensuring some provisional access scheme for the author. Consequently, the Committee considered that the access proceedings were plagued by undue delays, in violation of article 14 (1) of the Covenant. In case No. 2244/2013 (Dassum v. Ecuador), the Committee found a violation of art. 14(1) as a result of the adoption by Parliament of Legislative Decree No. 13, which expressly prohibited the filing of writs of protection against decisions of the Deposit Guarantee Agency ordering the seizure of property belonging to the authors.

Right to a public hearing (Covenant, art. 14 (1)) In case No. 2059/2011 (Y.M. v. Russian Federation), the Committee noted the author’s claim that his trial was not open to the public. The Committee also noted the State party’s submission that the decision to hold a closed trial was justified as the case involved “intimate details” about the life of parties in the case. However, no further details were provided. The Committee recalled its general comment No. 32 (2007) on the right to equality before the courts and tribunals and to a fair trial, in which it stated that all trials in criminal matters must in principle be conducted orally and publicly, unless the court decides to exclude all or part of the public for reasons of morals, public order (ordre public) or national security, or when the interest of the private lives of the parties so requires. Even in cases in which the public is excluded from the trial, the judgement, including the essential findings, evidence and legal reasoning, must be made public. The Committee considered that the State party failed to explain why it was necessary to close the entire trial, including the hearings of the facts and evidence related to the charges of murder, robbery and illegal possession of weapons, instead of closing only part of the trial in order to protect rights of minors, or intimate and personal information of parties in the trial. The Committee therefore considered that the State party failed to justify the exclusion of the public from the author’s entire trial under any of the justifications provided for in article 14 (1) of the Covenant. In the absence of other pertinent information on file, the Committee found that the State party violated the author’s rights under article 14 (1) of the Covenant. In case No. 2078/2011 (Amanklychev v. Turkmenistan), the author contended that his friends and relatives as well as members of the public, such as members of NGOs and representatives of embassies, were not allowed to be present at his trial. In the absence of any refutations by the State party, the Committee considered that due weight had to be given to the author’s allegations. The Committee therefore concluded that the facts as submitted disclosed a violation of the author’s rights under article 14 (1) of the Covenant. In case No. 2129/2012 (Esergepov v. Kazakhstan), the Committee took note of the author’s claim that his trial was not open to the public and that only a summary of the verdict was made public. The Committee also noted that in its decision dated 24 May 2010, the supervisory bench for criminal cases of the Supreme Court confirmed that only excerpts of the indictment and the verdict were provided to the author because the criminal case was rated “strictly confidential”. The Committee observed that the author was charged with publishing documents classified as secret that were already in the public space at the time of the trial. The State party failed to adequately explain what necessitated the secrecy of the proceedings, contending only that classified documents were involved and that the counsels for the author needed security clearance to access such documents. The Committee recalled its general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, in which it stated that even in cases in which the public is excluded from the trial, the judgment, including the essential findings, evidence and legal reasoning, must be made public. The Committee considered that the State party failed to justify the exclusion of the public from the author’s trial and the failure to make the full verdict public under one of the justifications laid out in article 14 (1). In the absence of other pertinent information on file, the Committee considered that the State party violated the author’s rights under article 14 (1). The Committee also found violation of this right in case No. 2304/2013 (Mukhtar v. Kazakhstan), after concluding that the State party failed to justify the exclusion of the public from the author’s trial under one of the justifications laid out in article 14 (1), in particular, for reasons of national security.

Right to the presumption of innocence (Covenant, art. 14 (2)) In case No. 2017/2010 (Burdyko v. Belarus), the Committee noted the author’s allegations that the principle of presumption of innocence was not respected in his case, because he was shackled and kept in a metal cage during the court hearings, and photographs of him behind metal bars in the court room were published in the mass media. In this respect, the Committee recalled its jurisprudence, as also reflected in its general comment No. 32, according to which the presumption of innocence, which is fundamental to the protection of human rights, imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of a criminal act must be treated in accordance with this principle. The same general comment further states that defendants should normally not be shackled or kept in cages during trial or otherwise presented to the court in a manner indicating that they may be dangerous criminals and that the media should avoid news coverage undermining the presumption of innocence. On the basis of the information before it, and in the absence of any other pertinent information or argumentation from the State party as to the need to keep the author in a metal cage during his trial in court, the Committee considered that the facts as presented demonstrated that the right to be presumed innocent of Mr. Burdyko, as guaranteed under article 14 (2) of the Covenant, had been violated. A similar finding was made in case No. 2289/2013 (Selyun v. Belarus)

Right to adequate time and facilities for the preparation of one’s defence (Covenant, art. 14(3)(b)) In case No. 2059/2011 (Y.M. v. Russian Federation), the Committee noted the author’s claim that his right to have adequate time and facilities for the preparation of his defence were violated and that he was not provided with a copy of the materials regarding the criminal investigation against him. In response to these claims, the State party provided details, including the exact times and dates when the author had an opportunity to study the materials. The Committee recalled its general comment No. 32, in which it pointed out that the determination of “adequate time” depends on the circumstances of each case and that “adequate facilities” must include access to all materials that the prosecution plans to offer in court against the accused. The Committee further noted that the author had the opportunity to study the case materials from 25 January 2002 until 12 March 2002. Moreover, on 11 and 18 February 2002, he was warned that he should not use delaying tactics in studying the case materials. The Committee recognized the restrictions placed on the author, however, given the fact that he had about one and a half months to study the case, it did not consider that the time allocated was inadequate. The Committee therefore concluded that the author’s right under article 14 (3) (b) of the Covenant had not been violated. In case No. 2129/2012 (Esergepov v. Kazakhstan), the Committee noted the author’s claim that owing to the restricted access to the majority of the documents related to his case, the author was deprived of his right to prepare his defence. The Committee observed that the State party confirmed that the author was provided only with a redacted version of the indictment, and recalled that “adequate facilities” within the meaning of article 14 (3) (b) must include access to documents and other evidence. This access must include all materials that the prosecution plans to offer in court. The Committee further noted the State party’s submission that the judge presiding over the trial appointed an ex officio defender, who had security clearance. The Committee, however, observed that the author refused the services of the State-appointed lawyer. Furthermore, even if the lawyer had full access to the prosecution evidence, the author himself lacked information permitting him to instruct his lawyer and to refute the criminal charges against him. The Committee concluded that the facts before it disclosed a violation of the author’s rights under article 14 (3) (b). In case No. 2231/2012 (Askarov v. Kyrgyzstan), the Committee noted the author’s claims that the police and the prosecutor refused to allow him to meet with his lawyer in private and withheld information necessary to prepare for his defence. Furthermore, the author claimed that on several occasions, relatives of the deceased police officer physically attacked his lawyer on the premises of the police station and at the prosecutor’s office and that the police and local prosecutors failed to intervene, creating a general sense of fear that is incompatible with the proper execution of a defence lawyer’s functions. There was also unrefuted evidence that on the first day of trial, the author’s lawyer was not present at the hearings because he had not been notified in time, while the court heard 16 prosecution witnesses. In the circumstances, the Committee concluded that the facts as submitted reveal a violation of the author’s rights under article 14 (3) (b) of the Covenant. In case No. 2289/2013 (Selyun v. Belarus), the Committee noted the author’s allegation that, during the pretrial investigation stage, he was not afforded the effective and continued assistance of a lawyer, and that he was able to hire a privately retained lawyer only in the framework of the preparation of his cassation appeal. In this context, the Committee noted, for example, that, during more than six months of pretrial detention, the author did not have effective and continued access to his lawyers, and that the majority of the investigative actions, such as crossexaminations and interrogations, took place in the absence of a lawyer. The Committee also noted that these allegations were not been refuted by the State party. Accordingly, it considered that due weight had to be given to the author’s allegations. Referring to its general comment No. 32, the Committee recalled that in cases involving capital punishment, it is axiomatic that the accused must be effectively assisted by a lawyer at all stages of the proceedings. In these circumstances, the Committee concluded that the facts as submitted revealed a violation of article 14 (3) (b) and (d) of the Covenant. In case No. 2304/2013 (Mukhtar v. Kazakhstan), the Committee took note of the author’s claims that the authorities hindered his lawyers from fulfilling their task effectively by not providing them with access to him, violating the confidentiality of attorney-client meetings, searching the personal belongings of the lawyers and prohibiting them from bringing in certain documents. The Committee took note of the State party’s claim that the privately retained lawyers did not have security clearance to work with “State secrets”. The State party, however, failed to justify the reasons for refusing security clearance to the lawyers. The State party also failed to explain why it was necessary to conduct hearings without the author being present. In the absence of any other pertinent observations from the State party, the Committee considered that the author’s rights under article 14 (3)(b) and (d) of the Covenant had been violated.

Right to be tried without undue delay (Covenant, art. 14(3)(c)) In case No. 1909/2009 (Fa’afete v. New Zealand), the author claimed that his trial had suffered undue delay from 22 December 1995, the date of the High Court judgement, until 1 March 2005, the date of the Supreme Court final judgement. The Committee recalled that the reasonableness of the delay in a trial has to be assessed in the circumstances of each case, taking into account the complexity of the case, the conduct of the accused and the manner in which the matter was dealt with by the administrative and judicial authorities. In the present case, the Committee noted that the author was sentenced by the High Court on 9 December 1995, following two pretrial applications and jury trial. Following the decision of the Privy Council of 19 March 2002, ordering the rehearing of the author’s case, the Court of Appeal hearing took place in February 2005. The delays referred by the author with regard to his appeal mainly resulted from his own requests for extension (three in total) to submit his grounds for appeal and to request legal aid. Furthermore, the author waited more than three years before presenting his application for leave to appeal to the Privy Council together with 11 appellants. Taking into account these specific circumstances, the Committee considered that the delay in determining the author’s appeal did not amount to a violation of article 14(3) (c) and (5).

Right to defend himself in person or through legal assistance of his own choosing (Covenant, art. 14 (3) (d)) In case No. 1941/2010 (Neporozhnev v. Russian Federation), the Committee noted the author’s claims that he was removed from parts of the first instance court hearings and could not deliver testimony in his defence, and that the verdict had not been announced publicly. The Committee recalled that article 14 (3)(d) requires that accused persons be present during their trial, even though proceedings in the absence of the accused may in some circumstances be permissible in the interest of the proper administration of justice. The Committee further recalled that all trials in criminal matters must in principle be conducted orally and in public, unless the court decides to exclude all or part of the public for reasons of morals, public order (ordre public) or national security. Even in cases in which the public is excluded from a trial, the judgment, including the essential findings, evidence and legal reasoning, must be made public. The Committee observed that the State party had not refuted the allegations of the author and thus failed to justify why the acts complained of would be in the interest of the proper administration of justice. In these circumstances, due weight had to be given to the author’s claims, and the Committee concluded that the facts disclosed a violation of the author’s rights under article 14(1) and (3)(d) of the Covenant. In case No. 2017/2010 (Burdyko v. Belarus), the Committee noted that during his five-month pretrial detention, the author did not have effective access to legal assistance, that during this period of time he confessed guilt under duress, and that he was not allowed to meet with his lawyer privately. These allegations had not been refuted by the State party. Referring to its general comment No. 32 (2007), the Committee recalled its jurisprudence that in cases involving capital punishment, it is axiomatic that the accused must be effectively assisted by a lawyer at all stages of the proceedings. In these circumstances, the Committee concluded that the facts as submitted by the author revealed a violation of his rights under article 14 (3) (d) of the Covenant. In case No. 2040/2011 (Zeynalov v. Estonia), the Committee took note of the author’s claim that the State party had violated his right to communicate with a counsel of his own choosing by revoking the permission for his counsel, Mr. Suleymanov, to participate in the proceedings, despite the fact that he was the author’s chosen counsel. The Committee also noted the State party’s argument that the counsel’s permission to participate in the proceedings was revoked because the court considered that he had shown himself to be an incompetent defence counsel and his removal was in the interest of the accused. This conclusion was based primarily on the fact that the counsel had requested the adjournment of the trial because of other commitments and because he had been allegedly disrespectful towards other parties in the proceedings. The Committee also noted the State party’s submission that the right to defence of the author was guaranteed, because after the removal of the counsel a member of the Estonian Bar Association had been appointed as counsel for the author, and that this counsel was proficient in the language of the proceedings and knew the criminal procedure. The Committee observed that according to the court’s assessment Mr. Suleymanov met the educational requirements to act as counsel in the proceedings and that the State party had not substantiated in what way Mr. Suleymanov was disrespectful to the other participants of the trial. The Committee further observed that the author was accused of serious crimes and potentially faced a conviction entailing a considerable prison sentence. The Committee lastly noted the author’s uncontested submission that in 2010, he had requested the participation in the appeals proceedings of two other Azerbaijani lawyers to defend him, but the Tallinn Court of Appeals rejected his requests. The Committee recalled that the right to a defence in criminal proceedings is a fundamental right which entails the right to be tried in one's presence and through legal assistance of one’s own choosing. The interests of justice may require the assignment of a lawyer against the wishes of the accused, particularly in cases of a person substantially and persistently obstructing the proper conduct of trial. However, any such restriction must have an objective and sufficiently serious purpose and not go beyond what is necessary to uphold the interests of justice. While the State party had explained why the Court requested the Estonian Bar Association to appoint another Estonian lawyer to represent the author, it had not provided sufficiently convincing reasons to explain why it was necessary in the interest of justice to entirely remove Mr. Suleymanov as the author's counsel and how his remaining on the defence team would have jeopardized the interests of justice. Furthermore, the State party had not shown that it made efforts to otherwise provide the author with counsel of his choice, nor had it persuasively justified its decision to prevent two Azerbaijani lawyers chosen by the author from joining the defence team at the appeal stage. Accordingly, the Committee concluded that the facts disclosed a violation of the author's right under article 14, paragraph 3(d) to be assisted by counsel of his choice. In case No. 2059/2011 (Y.M. v. Russian Federation), the Committee noted the author’s contention that he was not able to replace the lawyer, Mr. B., who, he claimed, failed to protect his rights during the pretrial investigation and court hearings. The Committee also noted the State party’s submission that the author failed to explain the differences that he had with the lawyer and that he failed to provide the name of another lawyer. The Committee observed that the Covenant guarantees the right of an individual to defend himself “in person or through legal assistance of his own choosing”. This right entails the freedom of the defendant not only to choose but also to replace a lawyer and this right should not be restricted unless it is absolutely necessary for the administration of justice, for instance, if the defendant abuses the right to replace a lawyer. The Covenant guarantees the right of the defendant to replace a lawyer who he or she does not perceive to be fit for the case or who he or she suspects is acting contrary to his or her interests. It is evident from the transcripts of the relevant court hearings that the author requested another lawyer. However, it emerged from the submission of the parties that the Sverdlovsk Regional Court and, subsequently, the cassation and supervisory appeal courts, failed to entertain the author’s request and imposed on him the obligation to justify his request. While noting that there was nothing in the file to indicate that the author abused his right to choose or replace the lawyer, the Committee concluded that the State party failed to justify why it was necessary for the administration of justice to restrict the author’s right to replace the lawyer or why it was not possible to assign a public defender to him. In the circumstances, the Committee concluded that the author’s rights under article 14 (3) (d) were violated. This provision was also violated as a result of the fact that the author, who was being tried for serious crimes punishable by up to 25 years’ imprisonment, was not represented by counsel during the cassation appeal hearings and was not properly informed by the Court of his right to be represented. In case No. 2129/2012 (Esergepov v. Kazakhstan), the Committee noted the author’s contentions that he was not represented by a lawyer of his own choosing during his criminal proceedings because the lawyers that he chose were rejected by the court on the ground that they did not have security clearance, that the court dismissed the author’s request to defend himself in person and assigned an ex officio lawyer to represent his interests, without his consent, and that the ex officio lawyer acted to the author’s detriment. The Committee noted that the author presented documentary evidence that his chosen lawyers were denied clearance to access secret documents on at least one occasion. The Committee recalled that the interests of justice may require the assignment of a lawyer against the wishes of the accused. However, any such restriction must have an objective and sufficiently serious purpose and not go beyond what is necessary to uphold the interests of justice, and domestic law should avoid any absolute bar against the right to defend oneself in criminal proceedings without the assistance of counsel. The Committee observed that the State party had not justified how the interests of justice in the present case required the participation of an ex officio defender, but rather simply referred to article 71 (1) (9) of the Criminal Procedure Code, which requires participation of a defence attorney in all cases where a prosecutor is present. Accordingly, the Committee concluded that the facts disclosed a violation of the author’s right under article 14, (3) (d) to be assisted by counsel of his choice.

Right of the accused person to examine or have examined witnesses against him (Covenant, art. 14(3)(e)) In case No. 2059/2011 (Y.M. v. Russian Federation), the author claimed that he was not afforded the right to cross-examine an important witness, C.H.A., in court and that only his initial statement was recorded as having been read. According to the State party, C.H.A. was undergoing medical treatment at the time and could not attend. However, the Committee noted that nothing in the submissions indicated that C.H.A. was permanently unavailable. Similarly, since the author’s wife refused to testify by invoking her rights under article 51 of the Constitution, her statement to the police was recorded as having been read, and she was not subject to cross-examination by the author. Six additional witnesses requested by the author were not subpoenaed to testify in his defence. The Committee further noted that while the right to obtain the attendance of witnesses is not unlimited, the accused or their counsel should have the right to have witnesses who are relevant for the defence admitted and to be given a proper opportunity to question and challenge witnesses against them at some stage of the proceedings. Furthermore, the Sverdlovsk Regional Court did not give any reasons as to why it refused the author’s request to summon additional witnesses or why, for that matter, the court hearing could not have been postponed to secure the presence of C.H.A. or any other witnesses, especially considering the gravity of the charges against the author. These factors, taken together, in particular the author’s inability to cross-examine an important witness, lead the Committee to conclude that the State party violated the author’s rights under article 14 (3) (e). In case No. 2141/2012 (Arkadyevich v. Russian Federation), the Committee noted the author’s allegations that during the court hearings as a result of which he was convicted of minor hooliganism he was not allowed to cross-examine the police officers whose statements were the only evidence against him. The Committee recalled that article 14 (3) (e) guarantees the right of accused persons to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. It also noted that protections under article 14, which are afforded to defendants in criminal cases, also apply to persons charged with administrative violations, which might lead to imposition of sanctions that, regardless of their qualification in domestic law, must be regarded as penal because of their purpose, character or severity. In the absence of any information from the State party as to the reasons for the refusal to allow the cross-examination of the only key witnesses, the Committee concluded that the facts as presented by the author amounted to a violation of his rights under article 14 (3) (e) of the Covenant. In case No. 2231/2012 (Askarov v. Kyrgyzstan), the Committee recalled its long-standing jurisprudence, that article 14 of the Covenant guarantees the right of accused persons to call and question witnesses. This guarantee is important for ensuring an effective defence by the accused and their counsel and thus guarantees the accused the same legal powers of compelling the attendance of witnesses and of examining or crossexamining any witnesses as are available to the prosecution. The Committee took note of the State party’s contention that the witnesses had no connection to the events in question or that that records of the court hearings contained no mention of counsel’s request to call any additional witnesses. The Committee noted, however, that it remained undisputed that the author’s counsel was not able to question witnesses on the first day of trial, and that the author was not able to call or cross-examine witnesses at the Supreme Court hearing. In these circumstances, and on the basis of the material before it, the Committee concluded that the State party violated the author’s rights under article 14 (3) (e).

Right to have the free assistance of an interpreter (Covenant, art. 14(3) (f)) In case No. 2040/2011 (Zeynalov v. Estonia), the Committee noted the author’s claim that his right to adequate time and facilities to prepare his defence had been violated, since the only documents provided to him in Russian were the indictment and the verdict and the translations were of poor quality; and because despite several requests he was not provided with an interpreter to his mother tongue. The Committee also noted the State party’s submission that the author was proficient in Russian and Estonian; that during the pre-trial proceedings he had requested to have a Russian language interpreter; that such an interpreter was provided to him throughout the proceedings; and that on several occasions he had submitted hand written applications in Estonian and in Russian. In this context, the Committee noted that the notion of a fair trial in article 14, paragraph 1, together with paragraph 3(f), does not imply that the accused be afforded the possibility to express himself or herself in the language that he or she normally speaks or speaks with a maximum of ease. Accused persons whose mother tongue differs from the official court language are, in principle, not entitled to the free assistance of an interpreter if they know the official language sufficiently to defend themselves effectively. In the present case, it transpired from the decision of the Harju County Court and the Tallinn Court of Appeals that the accused was sufficiently proficient in the court's language, and that they did not need to take into account whether it would be preferable for the accused to express himself in a language other than the court language. In the circumstances, the Committee found that the information before it did not show that the author’s right under article 14, paragraph 3(f), to have the free assistance of an interpreter if he did not speak or understand the language used in court, had been violated.

Right not to be compelled to testify against oneself or to confess guilt (Covenant, art. 14 (3)(g)) In case No. 2099/2011 (Polskikh v. Russian Federation), the Committee noted the author’s claims that he was subjected to torture and forced to confess guilt to a number of crimes and that this confession was used by the courts as evidence to convict him, despite requests by the author that such evidence should be suppressed. The Committee recalled that the safeguard set out in article 14 (3) (g) of the Covenant must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused with a view to obtaining a confession of guilt. Information obtained as a result of torture must be excluded from the evidence. In the light of the inadequate and inconclusive investigation by the State party’s authorities into the author’s allegations of torture to extract his confession, the Committee found that the facts before it disclosed a violation of the author’s rights under article 14 (3) (g). The Committee took a similar decision in case No. 2289/2013 (Selyun v. Belarus),

Right to have one’s conviction and sentence being reviewed by a higher tribunal (Covenant, art. 14 (5)) In case No. 1909/2009 (Fa’afete v. New Zealand), the Committee noted the author’s argument that the unavailability of the trial judge’s summing-up prevented him from having access to the documentation necessary for the proper preparation of his appeal, in violation of article 14 (1) and (5) of the Covenant. The Committee recalled that article 14 (5) of the Covenant provides that anyone convicted of a crime shall have the right to have their conviction and sentence reviewed by a higher tribunal according to law. As a result, the author should have obtained access to the court records and to those documents that are necessary to enjoy the effective exercise of the right to appeal. The Committee noted that the author had access to a transcript of the proceedings, except the summing-up part. It also noted that the issue of the lack of a summing-up was the subject of specific consideration in the Court of Appeal and the Supreme Court, and that the author had not provided any information to explain in what respect the transcript of the summing-up was necessary for him to effectively exercise his right to appeal, or that it affected his right to a fair hearing. Accordingly, under the circumstances of this case, the Committee considered that the author had not sufficiently substantiated his claim and it was therefore not in a position to find a violation of article 14 (1) and (5) of the Covenant.

Right to recognition as a person before the law (Covenant, art. 16) In cases concerning enforced disappearances, the Committee reiterated its established jurisprudence according to which the intentional removal of a person from the protection of the law for a prolonged period of time may constitute a refusal to recognize that person as a person before the law, if the victim was in the hands of the State authorities when last seen, and if the efforts of his or her relatives to obtain access to potentially effective remedies, including judicial remedies, have been systematically impeded. In case No. 2038/2011(Tharu and others v. Nepal), the Committee noted that, shortly after the arrest of the authors’ relatives, the authorities gave contradictory information about their arrest, and that later, they failed to provide sufficient information concerning the fate or whereabouts of the authors’ relatives, despite numerous requests. Accordingly, the Committee concluded that the enforced disappearance of the authors’ relatives denied them the protection of the law and deprived them of their right to recognition as persons before the law, in violation of article 16 of the Covenant. The Committee reached a similar conclusion in case No. 2134/2012 (Serna and others v. Colombia),

Right not to be subjected to interference with one’s privacy, family and home (Covenant, art. 17) In case No. 2324/2013 (Mellet v. Ireland), the Committee recalled its jurisprudence to the effect that a woman’s decision to request termination of pregnancy is an issue which falls under the scope of article 17 of the Covenant. The Committee noted that in this case the State party interfered with the author’s decision not to continue her non-viable pregnancy. The interference was provided for under article 40.3.3 of the Constitution and therefore was not unlawful under the State party’s domestic law. However, the question before the Committee was whether such interference was unlawful or arbitrary under the Covenant. The State party argued that there was no arbitrariness, since the interference was proportionate to the legitimate aims of the Covenant, taking into account a carefully considered balance between protection of the foetus and the rights of the woman. The Committee considered that the balance that the State party had chosen to strike between protection of the foetus and the rights of the woman in this case could not be justified. Under General Comment No. 16 on article 17, the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee noted that the author’s wanted pregnancy was not viable, that the options open to her were inevitably a source of intense suffering, and that her travel abroad to terminate her pregnancy had significant negative consequences for her that could have been avoided if she had been allowed to terminate her pregnancy in Ireland, resulting in harm contrary to article 7. On this basis, the Committee considered that the interference in the author’s decision as to how best cope with her non-viable pregnancy was unreasonable and arbitrary in violation of article 17 of the Covenant. In case No. 2077/2011 (A.S. v. Nepal), the Committee noted the author’s claims that, as a consequence of the violations committed against him and his quest for justice and redress, his family life had been arbitrarily interfered with and that his entire family had been subject to repeated threats and harassment. The Committee further noted the author’s claim that in February 2011, he and his wife were beaten in their home in front of their daughter, detained and subjected to ill-treatment by the police; that in July 2011, his wife was beaten and handcuffed in a police cell; and that as a result of the police harassment, he and his wife suffered from an anxiety disorder. The State party disputed the author’s version of the arrest in February 2011, but otherwise did not address the above facts other than to state that after the February 2011 incident, the author and his wife were neither harassed nor threatened. The Committee concluded that the conduct of the police officers constituted unlawful interference with the author’s privacy, family and home, in violation of article 17 of the Covenant. In case No. 2214/2012 (Lumbala v. Democratic Republic of the Congo), the Committee noted that the author’s arrest at his home took place without a warrant and was accompanied by acts of violence in the presence of one of his daughters; that, after the author escaped from the State party’s territory, his home remained under close surveillance and his wife was subjected to acts of intimidation; that agents of the National Security Agency on various occasions went to the home to try to find out from her the whereabouts of her husband. The Committee also noted that the author was forced to flee and to seek refugee status for him and his family in the United Kingdom, resulting in a three-year separation of the family after the author’s departure from the DRC. In the absence of observations from the State party and taking into consideration all circumstances of the case, the Committee considered that these facts constituted arbitrary and unlawful interference with the author’s privacy, home and family. Accordingly the Committee concluded that the State party violated the author’s rights under article 17, alone and read in conjunction with article 23, of the Covenant. In case No. 2279/2013 (Zoltowski v. Australia), the Committee recalled that, in cases of child custody and access, the relevant criteria for assessing whether the specific interference with family life was objectively justified must be considered, on the one hand, in the light of the effective right of a parent and a child to maintain personal relations and regular contact with each other and, on the other hand, in the light of the best interests of the child. In the present case, the Committee observed that the national authorities did not adopt any measure to allow contact between the author and his son after the son’s removal from Poland by the mother without the author’s consent, and that the author’s application for access was rejected by the Family Court of Western Australia due to concurrent custody proceedings initiated almost four years earlier in Poland. In the absence of explanations from the State party which could justify maintaining this situation, the Committee considered that the State party did not adopt the measures necessary to guarantee the right to family life between the author and his son following the latter’s removal from Poland, and that this lack of action amounted to arbitrary interference in their family life. The Committee therefore concluded that the facts before it constituted arbitrary interference with the author’s family, in violation of article 17 (1), and a failure by the State to take the steps necessary to guarantee the family’s right to protection under article 23 (1) of the Covenant. In case No. 2060/2011 (W.M.G. v. Canada), the Committee took note of the author’s allegation that his removal to Zimbabwe constituted an arbitrary interference with his family life in violation of articles 17 and 23(1) of the Covenant. In this regard, the Committee recalled that there may be cases in which a State party’s refusal to allow one member of a family to remain on its territory would involve interference in that person’s family life. However, the mere fact that certain members of the family are entitled to remain on the territory of a State party does not necessarily mean that requiring other members of the family to leave involves such interference. It also recalled that the separation of a person from his family by means of expulsion could be regarded as an arbitrary interference with the family and a violation of article 17 if, in the circumstances of the case, the separation of the author from his family and its effects on him were disproportionate to the objectives of the removal. In the present case, the Committee observed that the author’s deportation to Zimbabwe constituted an interference with his family relations in Canada. However, it also observed that the interference had a legitimate purpose, namely the protection of the State party’s society and the prevention of criminal offences by the author. During his stay in Canada the author was convicted of 11 criminal offences and failed to comply with judicial orders and immigration conditions imposed on him. Although eight other charges of assault were subsequently withdrawn, they were serious enough to result in a court order prohibiting him from having any contact with his two extramarital partners — the alleged victims — for a period of one year. Further, at the time the author was deported to Zimbabwe he faced two outstanding assault charges in which the alleged victim was his wife. The Committee also observed that the author was born and lived in Zimbabwe for almost 28 years; that he studied, worked, married, and had his first two children there; that during his 10-year stay in Canada he was never legally entitled to reside there; that owing to his long absence from the family home his wife was mainly in charge of the upbringing and care of their children; that there was no indication as to whether he had provided for his children’s needs; and that the information provided by the author was vague and did not allow the Committee to assess the kind of ties he kept with his wife and children. Even if his wife and children stayed in Canada, the Committee observed that there was no legal obstacle that would prevent them from visiting the author in Zimbabwe at any time. Accordingly, the Committee considered that, in the circumstances of the case, the interference with the author’s family life had not been shown to be disproportionate to the legitimate aim of preventing the commission of further crimes. The Committee therefore concluded that the author’s removal to Zimbabwe did not constitute a violation of his rights under articles 17 and 23(1) of the Covenant. In case No. 2078/2011 (Amanklychev v. Turkmenistan), the Committee noted the author’s claim that he was denied the right to see his family and relatives while in prison or to exchange correspondence with them. The Committee recalled its jurisprudence according to which prisoners shall be allowed, under necessary supervision, to correspond with their families and reputable friends on a regular basis without interference, as stipulated by the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules),which also provide for communication “by corresponding in writing” (rule 58). Noting that the State party had not specifically refuted the author’s allegations regarding his first two years of imprisonment, the Committee concluded that the facts as submitted by the author revealed a violation of the author’s rights under article 17 (1).

Freedom of thought, conscience and religion (Covenant, art. 18) In case No. 2221/2012 (Hudaybergenov v. Turkmenistan), the Committee noted the author’s claim that his rights under article 18 (1) of the Covenant had been violated due to the absence in the State party of an alternative to compulsory military service, as a result of which his refusal to perform military service on account of his religious beliefs led to his criminal prosecution and subsequent imprisonment. The Committee took note of the State party’s submission that the criminal offence committed by the author was “determined accurately according to the Criminal Code of Turkmenistan”, that pursuant to article 41 of the Constitution, “protection of Turkmenistan is the sacred duty of every citizen” and that general conscription is compulsory for male citizens. The Committee recalled its general comment No. 22 (1993) on freedom of thought, conscience or religion, in which it considered that the fundamental character of the freedoms enshrined in article 18 (1) is reflected in the fact that this provision cannot be derogated from even in time of public emergency, as stated in article 4 (2) of the Covenant. The Committee recalled its jurisprudence according to which although the Covenant does not explicitly refer to a right of conscientious objection, such a right derives from article 18, inasmuch as the obligation to be involved in the use of lethal force may seriously conflict with the freedom of thought, conscience and religion. The right to conscientious objection to military service inheres in the right to freedom of thought, conscience and religion. It entitles any individual to an exemption from compulsory military service if such service cannot be reconciled with that individual’s religion or beliefs. The right must not be impaired by coercion. A State may, if it wishes, compel the objector to undertake a civilian alternative to military service, outside the military sphere and not under military command. The alternative service must not be of a punitive nature. It must be a real service to the community and compatible with respect for human rights. In the present case, the Committee considered that the author’s refusal to be drafted for compulsory military service derived from his religious beliefs and that the author’s subsequent conviction and sentence amounted to an infringement of his freedom of thought, conscience and religion, in breach of article 18 (1) of the Covenant. In this context, the Committee recalled that repression of the refusal to be drafted for compulsory military service, exercised against persons whose conscience or religion prohibit the use of arms, is incompatible with article 18 (1) of the Covenant. It also recalled that during the consideration of the State party’s initial report under article 40 of the Covenant, the Committee had expressed concern that the Law on Military Duty and Military Service does not recognize a person’s right to exercise conscientious objection to military service and does not provide for any alternative military service, and recommended that the State party, inter alia, take all necessary measures to review its legislation with a view to providing for alternative service. The Committee therefore found a violation of the author’s right under article 18(1) of the Covenant. The Committee reached a similar conclusion in cases Nos. 2222/2012 (Hudaybergenov v. Turkmenistan) and 2223/2012 (Japparow v. Turkmenistan).

Freedom of opinion and expression and right of peaceful assembly (Covenant, arts. 19 and 21) The Committee found violations of these provisions in a number of cases against Belarus involving claims of violations of the right to freedom of opinion and expression and/or the right of peaceful assembly, as the authors had been subjected to sanctions for having taken part in events not authorized under the Law on Mass Events; or had been refused authorization to organize public events; or participated in political meetings; or distributed unauthorized printed materials. This was true, for instance, for cases Nos. 1969/2010 (Surgan v. Belarus) and 1982/2010 (Mikhalchenko v. Belarus). The Committee considered whether the restrictions imposed on the authors’ rights were justified under any of the criteria set out in article 19 (3). It recalled that article 19 provides for certain restrictions but only as provided by law and necessary: (a) for respect of the rights or reputations of others; and (b) for the protection of national security or of public order (ordre public), or of public health or morals. It also recalled that freedom of opinion and freedom of expression are indispensable conditions for the full development of the person; that such freedoms are essential for any society and that they constitute the foundation stone for every free and democratic society. Any restrictions to the exercise of such freedoms must conform to strict tests of necessity and proportionality and “be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated”. If the State imposes a restriction, it is up to the State party to show that this is necessary for the aims set out in this provision. In case No. 1902/2009 (Bakur v. Belarus), the Committee noted that no restrictions may be placed on the right of peaceful assembly other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. When a State party imposes restrictions with the aim of reconciling an individual’s right to assembly and the aforementioned interests of general concern, it should be guided by the objective of facilitating the right, rather than seeking unnecessary or disproportionate limitations to it. The State party is thus under the obligation to justify the limitation of the right protected by article 21 of the Covenant. The Committee noted the State party’s argument that the author was apprehended because he was participating in an unauthorized gathering, in violation of the Code regarding administrative offences, and that the actions by the police officers to put an end to the unauthorized event were justified since the organizers had not obtained authorization beforehand. However, the Committee also noted that the State party failed to demonstrate that apprehending and fining the author, even if based on law, were necessary for one of the legitimate purposes of article 19 (3) of the Covenant. The State party further failed to justify why an authorization was needed to hold a meeting in a private space rented by the political party. In that connection, the Committee recalled that it is up to the State party to demonstrate that the restrictions imposed were necessary in the case in question.In the circumstances described and in the absence of any other pertinent information from the State party to justify the restriction for purposes of article 19 (3) of the Covenant, the Committee concluded that the author’s rights under article 19 (2) of the Covenant had been violated. Likewise, in the absence of any pertinent information from the State party to justify the restrictions imposed contrary to the provisions of article 21 of the Covenant, the Committee concluded that the author’s rights under this provision had also been violated. Similar decisions were taken in cases Nos. 1984/2010 (Pugash v. Belarus), 1988/2010 (Evrezov v. Belarus), 2076/2011 (Derzhavtsev v. Belarus), 2092/2011 (Androsenko v. Belarus) and 2133/2012 (Statkevich et al v. Belarus). In cases Nos. 2016/2010 (Sudalenko v. Belarus) and 2019/2010 (Poplavny v. Belarus), the Committee underscored the fact that that the national authorities rejected the authors’ respective requests for a picket on the grounds that the planned location of the event was different from the only location permitted under decision No. 299 and because the authors had failed to conclude contracts with city services’ providers. From the material on file it transpired that the national authorities had failed to demonstrate how a picket held in the location proposed by the authors would jeopardize national security, public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. It noted in particular that neither the decision of the Executive Committee to the Central District Court of Romel to refuse the author’s requests to hold a picket nor the court decisions provided any justification as to why the restrictions imposed in decision No. 299 and applied in the authors’ cases were necessary and justified. The Committee also noted that the de facto prohibition imposed by decision No. 299 of an assembly in any public location in the entire city of Gomel, with the exception of a single remote area, unduly limited the right of assembly and the freedom of expression in the same context. Requesting the organizer of a one-person picket to contract additional services in order to hold a picket imposes a disproportionate burden on the right of peaceful assembly and the right to freedom of expression. In these circumstances, the Committee found that the formal application of decision No. 299 and the rejection by the State party’s authorities of the authors’ requests to hold a picket to be unjustified and concluded that the authors’ rights under articles 19 and 21 of the Covenant had been violated. In case No. 1996/2010 (Kruk v. Belarus), the issue before the Committee was whether the administrative fine imposed on the author for lending his neighbour newspapers that did not bear the publisher’s imprint, as required under article 22 of the Law on Mass Media, constituted a restriction by the authorities on the author’s freedom of expression, in particular, his right to impart information, within the meaning of article 19 (3) of the Covenant. The Committee noted that article 22 of the Law on Mass Media prescribes the type of information to be reflected in a publisher’s imprint. It also noted the author’s claim that the newspapers Astravetskyvesnik (Bulletin of Astravetsk), Nos. 1 and 2, Mirnyatam (Peaceful Atom) and Glotokvozdukha (Breath of Air) that he lent his neighbour were not periodical publications that fall within the scope of the Law on Mass Media. Without assessing the manner in which the domestic courts interpreted and applied the said legislation and evaluated the facts and evidence in the author’s case, the Committee was of the view that, by imposing on a person who is not a publisher or distributor, the obligation to ensure that newspapers and any other printed periodical publications they possess, read or lend to other persons comply with the requirements set out in article 22 of the Law on Mass Media, the State party restricts their freedom of expression, including their freedom to impart information, as protected under article 19 (2) of the Covenant. In the circumstances, and in the absence of any information from the State party justifying the restriction for the purposes of article 19 (3) of the Covenant, the Committee concluded that the author’s rights under article 19 (2) of the Covenant, had been violated. In case No. 2141/2012 (Arkadyevich v. Russian Federation), the author claimed to be a human rights defender and that on 21 December 2011, having just served a sentence of 15 day imprisonment, he was rearrested and charged with using obscene language in public, based solely on a report prepared by police officers. The Committee noted, based on the court decisions, that the author was tried and convicted in relation to an incident that took place on 16 October 2011, when he entered into verbal conflict with police officers while trying to deliver food to his acquaintances who were in detention. The Committee took note of the author’s claim that, even if he had used obscene language in public, the punishment imposed on him (another 15 days of imprisonment), was disproportionate to the gravity of the offence. The issue before the Committee therefore was whether the State party, by detaining, charging the author with an administrative offence and subsequently sentencing him had restricted his rights as guaranteed in article 19 of the Covenant. The Committee observed that the arrest, conviction and sentencing of the author resulted in restriction of his freedom to express an opinion. In that connection, the Committee recalled that it is for the State party to demonstrate that the restriction imposed was necessary in the case in question for one of the legitimate purposes listed in article 19 (3) of the Covenant. The Committee observed that the requirement of necessity implied an element of proportionality, in the sense that the scope of the restriction imposed on freedom of expression must be proportional to the value that the restriction serves to protect. While the State party appears to imply that the author’s conviction and sentence were necessary for the protection of public order, it has not provided a justification as to why it was necessary and proportionate to rearrest the author two months after the events and impose on him the maximum sentence provided by the law, namely 15 days of imprisonment, which he served. Even assuming that his arrest and detention had a basis in domestic law, and that his conviction pursued a legitimate aim, such as protecting public order, it cannot be said that the restrictions were necessary and proportionate to achieve that aim. In the circumstances described and in the absence of any other pertinent information from the State party to justify the restriction for the purposes listed in article 19 (3), the Committee concluded that the authors’ rights under article 19 (2) of the Covenant were violated. In case No. 2129/2012 (Esergepov v. Kazakhstan), the Committee took note of the author’s allegations that his rights under article 19 (1) and (2) of the Covenant were violated because of his conviction and the prohibition on engaging in publishing activities for two years, for publishing an article in which he expressed his personal critical opinion of documents sent to his newspaper; and that the files that he published did not contain information that could be viewed as State secrets, nor did they contain any information disclosing forces, means and methods of investigation of criminal cases affecting security interests of the State party or information that posed a threat to the State’s territorial integrity or political independence. The Committee also noted the State party’s argument that the author was convicted for publishing an article containing classified data regarding activities conducted for an investigation into a criminal affair related to a tax evasion. The Committee observed that in the present case the national authorities appeared to justify the restriction of the author’s freedom of expression on the ground of public order. The State party, however, failed to adequately justify how the publication of the documents in question jeopardized public order. The Committee noted that the author is a journalist whose main professional task is to inform society on issues of public interest, and also noted the author’s claim that the published documents revealed corruption and abuse of power among State officials. The State party did not refute that allegation, nor provided any specific argumentation as to why it was necessary to restrict the author’s freedom of expression, beyond a general reference to the permissible grounds for restrictions under article 19 (3). In the absence of sufficient justification by the State party as to the way in which publishing the documents in question jeopardized the public order, the Committee concluded that the author’s rights under article 19 (2) of the Covenant had been violated.

Right to freedom of association (Covenant, art. 22) In case No. 2011/2010 (Romanovsky v. Belarus), the Committee recalled that, in accordance with article 22 (2) of the Covenant, any restriction on the right to freedom of association must cumulatively meet the following conditions: (a) It must be prescribed by law; (b) it may only be imposed for one of the purposes set out in article 22 (2); and (c) it must be “necessary in a democratic society” in the interest of one of those purposes and proportionate in nature. Reference to “democratic society” in the context of article 22 indicates, in the Committee’s opinion, that the existence and operation of associations, including those which peacefully promote ideas that are not necessarily favourably viewed by the Government or the majority of the population, is a cornerstone of any democratic society. In that connection, the Committee recalled that it is for the State party to demonstrate that the restrictions imposed were justified in the case in question. The Committee also noted that in this case the refusal to register the author’s association, even though the reasons advanced by the State party were prescribed by the relevant law, the State party had not attempted to advance any arguments as to why they were necessary in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others, nor why the refusal to register the association was a proportionate response in the circumstances. The Committee further noted that in the decisions of the domestic authorities no explanation was given by the authorities, particularly the Supreme Court, as to why it was necessary to restrict the author’s right to freedom of association. The refusal to register the association led directly to the operation of the association in the territory of the State party being unlawful and directly precluded the author from enjoying his right to freedom of association. Accordingly, the Committee concluded that the refusal to register the association did not meet the requirements of article 22 (2) of the Covenant insofar as the author is concerned and deemed that the author’s rights under article 22 (1) of the Covenant had been violated. In the light of the foregoing, the Committee concluded that the author’s right to freedom of association with others did not benefit from adequate or effective protection and that the facts, as submitted, revealed a violation of the author’s rights under article 22 (1) of the Covenant.

Right of children to measures of protection (Covenant, art. 24) In case No. 2279/2013 (Zoltowski v. Australia), the Committee found that the State party did not adopt the measures necessary to guarantee the right to family life between the author and his minor son following the latter’s removal from Poland by his mother. For this reason, as well as the absence of any information by the State party that its failure to provide access between the author and his son was based on the best interests of the child, the Committee also found that the State party failed to take such measures of protection as required by the author’s son given his condition as a minor, in violation of article 24 (1) of the Covenant.

Right to equality before the law (Covenant, art. 26) In case No. 2234/2013 (M.T. v. Uzbekistan), the Committee noted the author’s claims that the gang rape committed against her, as well as the sterilization without her consent, constituted violations of article 26, as they amount to discrimination on the basis of her sex; and that by arbitrarily and unlawfully arresting and detaining, and later prosecuting and convicting her on account of her human rights activities, the State party additionally violated her rights under article 26, which protects against discrimination on grounds of political or other opinion. The Committee noted that the State party had not refuted these allegations specifically, but only stated, in general terms, that no violations of the author’s right had taken place. In the circumstances, the Committee considered that due weight had to be given to the author’s allegations. The Committee noted that the involuntary sterilization together with the rape committed against the author showed the specific aggression against her as a woman. Accordingly, the Committee considered that, in the circumstances of the case, the facts as presented by the author amounted to a violation of her rights under article 26 of the Covenant. In case No. 2062/2011 (M.K. et al. v. Slovakia), the Committee stated that article 26 does not prevent State parties from vetting or removing civil servants who had collaborated with prior regimes and who, due to their positions, may pose a significant danger to human rights or democracy. However, for these vetting or removals to be compatible with the Covenant, they should comply with the non-discrimination principle, due process guarantees and other rights protected by the Covenant. In the present case, the Committee noted the authors’ claim that they were forced to resign from public service under threat of losing social benefits to which they were entitled as civil servants, and that the sole argument for this decision provided by their supervisors was that the authors had initiated their service for the State intelligence agency before 1989.The Committee further noted that the authors’ performance or capacity to exercise their functions had not been called into question; that, after 1989, they continued to exercise their functions at the SIS for 14 years; that no individual assessment regarding their performance was conducted before they were forced to resign; that the State party has not put forward any argument to the effect that the different treatment among SIS agents having served at the SIS before and after 1989 was based on objective and reasonable criteria and aimed at achieving a legitimate purpose; and that the SIS director´s statement to Parliament suggested that the decision was rather based on political considerations. In light of this, and in the absence of explanations by the State party on how the measures impugned by the authors were consistent with the State party’s obligations under article 26, the Committee considered that the decision to force the authors to resign from public service resulted in discrimination on political grounds, in violation of article 26 of the Covenant.