March – 3 April 2009
State party’s observations
On , the State party informed the Committee that subsequent to the Supreme Court judgment, the Attorney-General has decided to indict all the police officers against whom the Supreme Court issued adverse findings. Indictments under the Convention Against Torture Act are currently being prepared and will be dispatched to the relevant High Courts in due course.
Consideration of the merits
As to the claims of violations of articles 7 and 9 of the Covenant with regard to the author’s alleged torture and the circumstances of his arrest, the Committee notes that the author has provided detailed information and evidence to corroborate his claims on the basis of which the State party’s Supreme Court found violations of his rights under sections 11 and 13, paragraphs 1 and 2 of the Constitution. It also notes that the State party has not contested the authors’ claims but merely informed the Committee that in 2007, the Attorney General had “decided” to issue indictments in this case and that they were being prepared at the time. The Committee reiterates its jurisprudence that the Covenant does not provide a right for individuals to require that the State party criminally prosecute another person. It considers, nonetheless, that the State party is under a duty to investigate thoroughly alleged violations of human rights, and to prosecute and punish those held responsible for such violations.
The Committee notes that the author’s fundamental rights application before the Supreme Court was disposed of only after a long delay of six years. Moreover, despite the fact that it has now been eight years since the author’s arrest, the information provided by the State party with respect to the prosecution of those responsible has been minimal and despite requests it has not indicated whether indictments have actually been issued and when the cases would be likely to be heard. Under article 2, paragraph 3, the State party is under an obligation to ensure that remedies are effective. Expedition and effectiveness are particularly important in the adjudication of cases involving torture. The Committee is of the view that the State party cannot avoid its responsibility under the Covenant by putting forward the argument that the domestic authorities have already dealt or are still dealing with the matter, when it is clear that the remedies provided by the State party have been unduly prolonged without any valid reason or justification, indicating failure to implement these remedies. For these reasons, the Committee finds that the State party violated article 2, paragraph 3, read together with articles 7 and 9 of the Covenant. As far as the claims of separate violations of articles 7 and 9 are concerned, the Committee notes that the State party’s Supreme Court has already found in favour of the author in this regard.
With regard to the claim that the State party violated the author’s rights by failing to investigate the complaints filed by him with the police, the Committee notes that the State party has not addressed this allegation, nor has it provided any specific arguments or materials to refute the author’s detailed account of the complaints filed by him. It recalls its jurisprudence that article 9, paragraph 1, of the Covenant protects the right to security of the person also outside the context of formal deprivation of liberty. Article 9, on its proper interpretation, does not allow the State party to ignore threats to the personal security of non-detained persons subject to its jurisdiction. In the present case, the author has alleged having been threatened and pressurised to withdraw his complaints. In the circumstances, the Committee concludes that the failure of the State party to investigate these threats to the life of the author and to provide any protection, violated his right to security of person under article 9, paragraph 1 of the Covenant.
The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it reveal violations by the State party of article 2, paragraph 3, read together with articles 7 and 9, of the Covenant, as well as a separate violation of article 9, paragraph 1, of the Covenant with respect to the threats made against the author.
In accordance with article 2, paragraph 3, of the Covenant, the State party is under an obligation to provide the author with an effective remedy. The State party is under an obligation to take effective measures to ensure that the author and his family are protected from threats and intimidation, that the proceedings against the perpetrators of the violations are pursued without undue delay, and that the author is granted effective reparation, including adequate compensation. The State party is also under an obligation to take measures to prevent similar violations in the future.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, that State party has undertaken to ensure all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the Committee’s Views. [Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s annual report to the General Assembly.]