The author of tae communication (initial letter dated 25 June 1987, and further letter dated 20 April 1988) is V. M. R. B, a journalist and citizen of El Salvador, born in 1948, at present residing iu Montreal, Canada. He claims to be the victim of a violation by the Government of Canada of articles 2, 6, 9, 14, 18, 19 and 26 of the International Covenant on Civil and Political Rights. He is represented by counsel.
On 5 January 1982, the author entered Canada at Blackpool, on the United States border, without having any visa to enter or stay in the co~ntry. He was detained upon entry, but he applied for admission as a refugee under the Canadian Immigration Act of 1976. On 7 January 1982, he was heard for the first time before an Immigration Adjudicator, pursuant to article 23 (3) (c) of the Act. The latter decided to uphold the author's detention under article 104 (3~ (bl of the Act, on the ground that he represented a "danger to the public" and was likely to stay in Canada and not appear for his deportation hearings. This decision was based on a security certificate dated 14 November 1980 and signed by both the Solicitor-General and the Minister for Employment and Immigration of Canada, according to which the author is a person "who there are reasonable grounds to believe will engage in or instigate the subversion by force of any Government". Under article 19 (1) (f) of the Act, such persons are to be denied entry into Canadian territory.
The detention order was extended in a succession of weekly hearings before the Adjudicator (from 14 January to 11 February 1982). On 17 February 1982, the Adjudicator ordered the author deported, purpo~tedly on the sole ground that the Minister's certificate of 14 November 1980 was "uncontestable". Testimony on behalf of the author by witnesses produced by his lawyer was deemed unconvincing. After another hearing on 10 March 1982, during which the government representative stated that the author could no longer be regarded as a danger to the public, the Adjudicator ordered the author's release on 11 March 1982. The deportation order, however, was upheld. -258-
With regard to the requirement ot the exhaustion of dome.tic remedie., the author states that h. has taken his ca.e through all court instances, and that hi. appeals were dismJ.ssed by the Immigration Appeal Board, the Federal Court of Canada (first in.tance), the Federal Court of Appeal and the Supreme Court of Ca~ada. He claims that domestic remediee have been exhausted with the deci.ion by the Supreme Court of Canada of 29 January 1987 not to grant him leave to appeal.
By a docilion of 19 October 1987, the Working Group of the Human Rights Committee transmittwd the communication under rule 91 of the provi8ional rule. of procedure to the State party, reque8ti~g information and observations relevant to the question of the admissibility of the communication.
In its SUbmission under rule 91, date~ 12 February 1988, the State party objects to the admi.sibility of the communication under article 3 of the Optional Protocol, rationl materiae, as incompatible with the provisions of the Covenant, and aB an abu.e of the right of submi••ion.
with regard to the facts, the State party points out that the author had already entered Canada in February 1980 and applied for refugee .tatus. Before a decision could be rendered in hi. case, he left Canada in October 1980. Investigations showed that "while in Canada, he was ta":ed and funded hI a foreign political party to carry out certain activities which are prohibited under Canadian law. AB a cover for hi. entry co Canada and for his activitie_ while in Canada, Mr. R. was accredited a. a journalist with the .•• new. agency .•• which i. known to be directed by a foreign intelligence service". As a result 0: information made available by the Security Service of the Royal Canadian Mounted Police, it was dotermined that Mr. R. was a porson de.cribed under article 19 (1) (f) of the Immigration Act of 1976, which deniel admislion to Canada to persons for whom there are reasonable grounds Lo believe that they will engago in or instigate the subversion by force of any Government. Therefore, on 14 November 1980, after the author's departure from Canada, a certIficate pursuant to article 39 of the Immigration Act was issued, excluding him from re-e~try into Canada, and requiring that he be deported if he entered Canada again. Thus, when on 5 January 1982 he again entered Canada, he was ordered detained pursuant to article 104 of the Immigration Act. The State party emphasises that "upon seeking to re-enter Canada •.• the author was entitled la a hearing of his refugee claiml however, he was never le9a11y admitted to Canada, pursuant to the rules for admission set out in the Immigration Act, 1975. From 1982 to date, the author has never been lawfully within the territory of Canada, although he has remained in Canada dudnq this time pending the outcome of immigration proceeding,,".
With respect to an alleged violation of article 9, paragraph 1, of the Covenant, the State party indicates that Mr. R's detention from 5 January 1982 to 11 March 1982 was based on the certificate issued jointly by the Canadian Solicitor-General and by the Minister of Employment and Immigration pursuant to article 39 of the Immigration Act, stating that, "based on security and criminal intelligence reports received and considered by us, which cannot be revealed in order to protect information sources, [the author) is a person described in article 19 (1) (f) of the Immigration Act, 1976, his presence in Canada being detrimental to the national interest". Thus, the State party submits that the lawful detention of an alien against whom there exists an exclusion order cannot be deemed to constitute arbitrary detention. Furthermore, the State party explains that in the case of a person seeking asylum, a reasonable amount of time must be allotted to the authorities to collect information, investigate and carefully determine the sensitive question whether an individual poses a danger to national security. In this context the State party refers to article 5, paragraph 1 (f), of the European Convention on Human Rights, which specifically provides that: "No one shall be deprived of his liberty save in the followiug cases and in accordance with a procedure prescribed by law: ••• "(f) The lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition". While article 9, paragraph 1, of the Covenant is not as specific as the parallel provision in the European Convention, the State party submits that the scope of article 9, paragraph 1, does not cover detention for the purposes of immigration control and that this aspect of the communication should be declared inadmissible ratione materiae.
Although the author does not invoke article 13 of the Covenant, the State party addresses the issue of the expulsion of aliens as provided for in the Covenant and refers to the Committee's decision in case No. 58/1979 Maroufidou v. Sweden, ~/ where the Committee held that her deportation from Sweden did not constitute a violation of the Covenant because she had been expelled in accordance with the procedure laid down by the State's domestic law and that there had been no evidence of bad faith or abuse of power. In this context, the Government of Canada asserts that the deportation proceedings against Mr. R. are in compliance with the requirements of article 13 of the Covenant. -260-
With respect to an alleged violation of articles 18 and 19 of the Covenant, the State party objects that the author has not submitted evidence to substantiate a prima fAcie case of any violation of his rights to freedom of thought, opinion and expression. Finally, with respect to an alleged violation of articles 2 and 26 of the Covenant, the State party submits that the author has submitted in~ufficient evidence to disclose a prima fAcie violation of these provisions, that his allegations are manifestly ill-founded, and that these aspects of the communication should be declared inadmissible as an abuse of the right of Submission pursuant to artiCle 3 of the Optional Protocol.
Commenting on the State party's submission under rule 91, the author, on 20 April 1988, reiterates that the order for his expulsion represents an objective danger to his life and refers to the judicial precedents of the European Commission of Human Rights in this respect. He further argues that his communication does D2t invoke a right of asylum, and that a distinction must De made between the request for a right of asylum, and asylum resulting from the establishment of certain mechanisms to remedy'violations of the Covenant alleged by individuals. It was not the deportation order which he denounced, but the breach of specific rights guaranteed by the Covenant.
With respect to the alleged violation of article 14, paragraph 1, the author advocates a broad ic.terpretation of what constitutes "rights and obligations in a suit at law". He refers to the Committee's general comment on article 14, which states that "the provisions of article 14 apply to all courts and tribunals within the scope of that article, whether ordinary or specialized", ~I and suggests that public la~ disputes also fall under the scope of application of article 14. Furthenmore, he recalls that the English version of the Covenant protects rights and obligations "in a suit at law" rather than rights and obligations ·'de caractitre ~.., as stated in the French version of the Covenant, which therefore is said to be more restrictive.
With respect to article 9, the author maintains that this provision should be applied to all situation6 where an individual has been deprived of his liberty, inclUding for reasons of immigrRtion control.
The author concludes that with respect to his other allegations, concerning violations of articles 18 and 19, he has at least presented prima fAcie evidence to the effect that Canada has violated the Covenant. He sunmises that the reason why Canadian authorities want to deport him is because of his political opinions: "National security grounds cannot be invoked unless there is justification for this infringement of a right guaranteed by the Covenant, in this case to be protected against all discrimination•••• The State invokes national security -261-
With regard to his allegation that he has been subjected to discrimination in violation of articles 2 and 26 of the Covenant, the author contends: "that the Canadian Government's manoeuvres constitute discrimination against foreign citizens. An alien may not express his opinions, thought or convictions, for in exercisi~g these rights he will not receive the same treatment as a Canadian citizen. The mechanism provided by article 19 (1) (f) of the Canadian Immigrp~ion Act is discriminatory in that the accuracy of information concerning an alien as regards ideas or opinions allegedly expressed by him is not verified. The alien.c8nnot enjoy the same protec~ion for his opinions as a citizen expressing the same views."
Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its provisional rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.
The Committee observes that the State party has not contested the author's claim that domestic remedies have been exhausted. It further notes that the same matter is not being examined under another procedure of international investigaticn or settlement. On the basis of the information before it, the Committee therefore finds that the communication meets the requirements of article 5, paragraph 2, of the Optional Protocol.
The Committee has also examined whether the conditions of articles 2 and 3 of the Optional Protocol have been met. It observ~s that a right of asylum is not protected by the Covenant. Kith regard to the author's allegation that his right to life under article 6 of the Covenant and that his right to liberty under article 9 have been violated, the Committee finds that he has not substantiated either allegation. With regard to article 6 of the Covenant, the author has merely expressed fear for his life in the hypothetical case that he should be deported to El Salvador. The Committee cannot examine hypothetical violations of Covenant rights which might occur in the future; furthermore, the Government of Canada has publicly stated on several occasions that it would not extradite the author to El Salvador and has given him the opportunity to select a safe third country. Kith regard to article 9, the Committee points out that this article prohibits unlawful arrest and detention, whereas the author was lawfully arrested in connection with his unauthorized entry into Canada, and the decision to detain him was not made arbitrarily, especially in view of his insistence not to leave the territory of Canada. The Committee also found it necessary to determine whether a claim could be substantiated under article 13, although the author has not invoked it. It obse~~ea that one of the conditions for the application of this article is that the alien be laWfully in the territory of the State party, wherea5 Mr. R. has not been lawfully in the territory of Canada. Furthermore, the State p~~cy has pleaded reason~ of national security in connection with the proceedings to deport him. It is not for the Committee to test a sovereign State's evaluation of an alien's security rating; moreover, on the basis of the information before the Committee, the procedures to deport Mr. R. have respected the safeguards provided for in -262- ~~portation proc••ding. re.ulted from the State party'. di.approval of hi. po.\itical opinion. i. refuted by the State party'. uncontalted .tatement that, a. early •• Nov.mber 1980, he had been e.cluded from re-entering Canada on clear national .ecurity ground. (para. 4.2 above). Deportation of an ~lien on .ecurity ground. doe. not con_titute an interference with the right. guarant.ed by article. 18 and 19 of the C~venant. With r~.pect to article. 2 and 2& of the Covenant, the author ha_ failed to e.tablieh h~w the deportation of an 31ien on national .ecurity ground8 con.titutft8 4ilcrimination.
Th. Human Right. Committ.e therefore decid.'1 (a) That the communication i8 inadmi••ibl. und.r articl•• 2 and 3 of the Optional Protocol becau.e the author'. claim_ are either un.ub.tantiated or incompatible with the provi.ion. of the Covenantl (b) That thi. decl.ion .hall b. communicated to the author of the communication and to the State parly. \1. Communication ..litJ..__-1.4.J.l.liJl,1.L .1i..._...a.•. _y.•.J.1'JLU~ (nlci.ioD, adopted OJl,..5.....1l0y.mb.r.,_19.JlL...A.t.......t.Jw thirty-fir.t"e••ioD)* Submitted bYI S. R. [name deleted] UAt.LJlt,CWllDUAlcatloDI 26 Augu8t 1987 Iha-HwmAD BlghtJL,Comml~, e.tabli8hed under article 28 of the International Covennnt on Civil and Political Right8, ~t.lAg on 5 November 1981, Ado»!. the followingl * Pur.uant to rule 85 of the provisional rul•• of procedur., Committee member Chri.tlne Chanet did not tak8 part in the ado~tlon of the deci8ion.