M.P. originally was from Sri Lanka, and of Tamil ethnicity and the Hindu faith. She claimed her family had strong ties with the Liberation Tigers of Tamil Eelam (“LTTE”). Her father was killed and several of her brothers were subjected to violence due to the connection. To gain protection, M.P. illegally entered Switzerland where she met her former husband and father of her two children. Her husband was violent and abusive, and was convicted of domestic violence against her for which he was sentenced to three years imprisonment. He was to be expelled to Sri Lanka upon his release, but forced M.P. and the children to accompany him to Denmark and make false statements to seek asylum. M.P. was afraid of her husband, who physically assaulted her and the children and threatened to kill her and take their children away if she did no support his false version of reasons for seeking asylum. He claimed he had been detained by the military and that M.P. had been sexually abused by the Sri Lankan army. Danish authorities denied the family’s asylum request finding that M.P.’s husband had limited associations with LTTE. He was returned to Sri Lanka after he assaulted another person in Denmark. After he left, M.P. felt she could safely present the true grounds for seeking asylum in Denmark. However, her application was rejected. The Committee considered M.P.’s claim that forcibly removing her and her children would violate Denmark’s obligations under article 7 of the Covenant because she would be detained by authorities and beaten, raped and tortured due to her family’s alleged affiliation with LTTE. The Committee noted its jurisprudence that the State’s role is to review and evaluate facts and evidence to determine whether a risk exists, unless the evaluation was clearly arbitrary or amounted to a denial of justice. It then noted the findings of the Danish authorities that M.P. had not raised her family’s affiliation with LTTE before the Swiss authorities when seeking residence. Further, it noted the finding that current background material on Sri Lanka provided no basis for believing that Tamils such as M.P. with no affiliation with LTTE whose family members had not been high-profile members of LTTE would risk persecution or abuse justifying asylum merely based on ethnicity. Regarding claims by M.P. of alleged risk of harm by her former husband in Sri Lanka, the Committee noted that M.P. merely took issue with Denmark’s conclusions that she could seek protection if needed from her husband from Sri Lankan authorities. The Committee concluded that the information provided did not demonstrate that M.P. would face a real and personal risk of treatment contrary to article 7 if she were deported to Sri Lanka.
Women and Justice: Court: Human Rights Committee (ICCPR)
Abromchik attended a peaceful assembly on 19 December 2010 with friends in Minsk following the announcement of presidential election results. After the event, when she and her friends were stopped by a special unit of riot police and tried to escape, they were blocked and beaten. An officer punched her on the leg with a rubber truncheon several times. She realized she had a broken leg and told the police officer. She was not taken to the hospital for several hours. She made a complaint to the prosecutor of Minsk about the unlawful actions of the police. She provided details about the incident and witnesses were questioned, but no other actions were taken to investigate the incident or to identify the police officer who had beaten her. The prosecutor’s office suspended the investigation, stating that it was impossible to find those responsible. The office resumed the investigation and then suspended it again on the same grounds. In her appeal to the Committee, Abromchik claimed that she was physically assaulted and affected mentally in violation of article 7 of the Covenant because authorities wanted her to feel helpless and to victimize her and that her age and gender should be taken into account when assessing the gravity of the ill treatment. She also noted that her complaint of ill-treatment was not investigated promptly and impartially by the authorities, contrary to article 7. The Committee found that, in the absence of any information from Belarus that it undertook to address the allegations made, due weight must be given to the allegations. On this basis, the Committee concluded that Belarus failed in its duty to adequately investigate the allegations made in violation of article 7, read in conjunction with article 2(3) of the covenant. The Committee determined that Belarus was required to provide an effective remedy, including conducting a full investigation of the ill treatment in order to prosecute the perpetrators and to punish them with appropriate sanctions, providing adequate compensation, including reimbursement of legal and medical expenses and non-pecuniary losses, and issuing a formal apology to Abromchik. Further, the Committee stated that Belarus was under an obligation to take necessary steps to prevent similar violations from occurring in the future.
D.T., a Christian born in Nigeria, married a Muslim. Her parents were against the marriage, and when she was pregnant, they threatened to kill the baby. After her husband died, she was forced to drink the water used to bathe his corpse and to sleep in the room with the corpse for three days. With help, she escaped and traveled to Canada where she gave birth to her son. Her son suffers from conditions, including a heart murmur, malformation of his meniscus and attention deficit hyperactivity disorder (ADHD). D.T. applied for asylum, but Canada denied her application because it found that she failed to provide materials or documentation establishing her identity and her claims. Canada dismissed her application for judicial review and ordered her to leave Canada with her seven-year-old son. To the Committee, D.T. argued that Canada’s decision violated articles 17 and 23(1) of the Covenant, that her son is also the victim of a violation of article 24(1), and that they face a risk of irreparable harm if deported to Nigeria, which has education and health care facilities inadequate to meet her son’s needs. Further, if her son remained in Canada as a citizen, it would result in family separation from his sole caregiver. The Committee concluded that given that there was no evidence that that the child had any alternative adult support network in Canada, it was foreseeable that D.T. would take her son to Nigeria. Therefore, Canada did not adequately explain why its legitimate objective in upholding its immigration policy should have outweighed the best interests of the D.T.’s child nor how that objective could justify the degree of hardship that confronted the family because of the decision to deport the mother. Acting under article 5(4) of the Optional Protocol, the Committee found the removal resulted in arbitrary interference with the right to family life in breach of article 17(1) and article 23(1) of the covenant with respect to D.T. and her son, and that it violated article 24 due to a failure to provide her son with the necessary measures of protection owed to him by Canada. Canada was ordered to provide D.T. with an effective re-evaluation of her claims, based on an assessment of the best interests of the child, including his health and educational needs, and to provide her with adequate compensation. The Committee stated that Canada also is under an obligation to avoid similar violations in the future and to publish the Views and have them widely disseminated in Canada in French and English.
R.R., an Iranian national, had left Iran for Italy with her husband and children due to her husband’s activities for the Kurdish Komeleh party. While in Italy, they lived in an asylum center and then were provided with a dwelling. They had difficulty paying rent as they could not find steady employment and her husband became addicted to narcotics. Her husband subjected her and the children to domestic violence and she was forced into prostitution by her husband. She left her husband and took her children. She was diagnosed with bipolar disorder, depression, and cervical cancer, and received help from friends to pay for surgery. Her youngest son suffered from heart disease. She and her children left Italy and sought asylum in Denmark. Danish authorities rejected her asylum application, finding that Italy should serve as her first country of asylum. R.R. claimed that by forcibly returning her and her two children to Italy, Denmark would violate its rights under article 7 of the Covenant. She stated that her family unit were particularly vulnerable as she was a single mother, she and her son required medical attention, and they risked facing inhuman and degrading treatment upon return to Italy, including a risk of homelessness and destitution, with limited access to the necessary medical care. The Committee, acting under article 5(4) of the Optional Protocol, decided that the deportation of R.R. and her two children to Italy without proper assurances from Italy that it would renew her residence permit and issue permits for her children and that it would receive her family in conditions appropriate for her children’s age and the family’s vulnerable status to enable them to remain in Italy, would violate their rights under article 7 of the Covenant. The Committee required Denmark to review her claim in consideration of its obligations under the Covenant and the need to obtain proper assurances from Italy. While considering her request for asylum, the Committee requested that Denmark not deport her and her children.
Hibaq Said Hashi left Somalia for fear of persecution by Al-Shabaab. She was divorced from one man and married to a second man, but her former husband claimed they were not divorced and she was having sexual relations with another man, which caused Al-Shabaab to call for her to be stoned. Her father helped her leave Somalia and then he was killed, and her current husband was sentenced to death. She traveled to Italy by boat, was registered and determined she was pregnant, but she faced poor conditions in Italy so she left for Sweden to have her baby. When she learned Swedish authorities planned to send her back to Italy, she and her son moved to Denmark where she applied for asylum. She claimed that if she returned to Somalia she would be persecuted and if she returned to Italy she would face harsh living conditions and would not be able to provide for her son’s basic needs. She was ordered to leave Denmark to return to Italy, which Denmark considered her first country of asylum. Upon appeal, the Committee, acting under article 5(4) of the Optional Protocol, decided that the removal of Hibaq Said Hashi and her son to Italy without any assurances from Italy that it would receive her and her son in conditions suitable for her child’s age and family’s vulnerable status would violate their rights under article 7 of the Covenant. The Committee required Denmark to review her claim in consideration of its obligations under the Covenant and the need to obtain effective assurances from Italy. While considering her request for asylum, the Committee requested that Denmark not deport her and her son.
C. was a citizen of Australia and the United Kingdom who lived with A. as a couple in the State of Victoria and then Queensland. They agreed to have a baby and that C. would be the birth mother. They traveled to Canada and got married and then separated shortly after the marriage. C. is the sole caregiver of the baby and no longer knows of the whereabouts of A. C. wanted to formally dissolve her Canadian legal marriage so that she could remarry or enter a civil partnership in the future. She also wanted to ensure she was not held responsible for A.’s debts. Finally, when traveling abroad, she did not want A. to be deemed her legal spouse in certain countries where the marriage might be recognized and A deemed next of kin. In Queensland, in order to obtain a file a divorce application to dissolve a marriage, a marital relationship must be legally recognized as a marriage. Section 5(1) of the Marriage Act of 1961, which provided the relevant definition of marriage, define this term to mean “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” Further, Section 88EA of the Act provided that, “a union solemnized in a foreign country between: (a) a man and another man, or 9b) a woman and another woman, must not be recognized as a marriage in Australia.” C. did not file for divorce in Australia because of the laws, nor did she apply in Canada or the United Kingdom because both had residency requirements for divorce. C. filed her claim with the Committee claiming that the denial under Australian law of access to divorce proceedings for same-sex couples who have validly married abroad and the consequential denial of court-based relief in the form of a court order amounts to discrimination on the basis of sexual orientation, contrary to article 1491), ready together with article 291) (equal access to courts and tribunals), and article 26 (equality before the law) of the Covenant. The Committee determined that C. was precluded from accessing divorce proceedings in Australia because her same-sex marriage was not recognized under sections 5(1) and 88EA of the Marriage Act of Australia, whereas couples in specific opposite-sex marriages not recognized in Australia, such as polygamous couples, do have access to divorce. This was found to constitute differential treatment. Australia stated they made a reasonable exception for polygamous marriages to enable parties to such marriages access to the assistance, relief and help provided by the family law courts in relation to (but not limited to) children’s matters, property matters, maintenance matters or divorce. The Committee determined that Australia did not explain why this stated reason does not apply equally to unrecognized foreign same-sex marriages. In the absence of more convincing explanations from Australia, the Committee found that the differentiation of treatment based on sexual orientation to which C. was subjected regarding access to divorce proceedings was not based on reasonable and objective criteria and therefore constitutes discrimination under article 26 of the Covenant. Under article 2(3) of the Covenant, the Committee stated that Australia was under an obligation to provide C. with an effective remedy by providing full reparation for the discrimination suffered through lack of access to divorce proceedings. Australia also was obligated to take steps to prevent similar violations in the future and to review its laws in accordance with the Committee’s views, and to provide the Committee information about the measures taken to give effect to the Committee’s views within 180 days.
The Government of Nepal declared a state of emergency in response to a rebellion by the Maoist party and granted powers to the Royal Nepal Army to arrest individuals on suspicion of involvement in terrorist activities through and to keep them in detention for up to 90 days without charge. The first author, Sarita Devi Sharma, is the sister of Himal Sharma, Secretary-General of a Maoist-affiliated political party in Nepal. Ms. Sharma and her friend B.M. were followed and asked about Ms. Sharma’s brother, then they were handcuffed, placed in a van and taken to Army barracks. She was detained and held from October 2003 through 30 June 2005. Once her husband, the second author, became aware of her disappearance, he submitted an application to the National Human Rights Commission denouncing her disappearance and submitted a writ petition to the Supreme Court of Nepal demanding an order of habeas corpus, which the court rejected, claiming lack of evidence proving her illegal detention. He also informed Amnesty International about her disappearance, but they never received a reply from the Government when they inquired about her. During the first four-five months, she was routinely interrogated, beaten, held underwater for long periods of time and threatened with rape. After that, she suffered ill health and was taken to a hospital. In the hospital, she sent a letter secretly to her husband who, after several months of not hearing any further information, shared it with members of All Nepal National Independent Student Union Revolutionary who included information about her condition in a press release. As a result, Ms. Sharma was interrogated harshly and beaten. Ms. Sharma was then moved to a small, dark room and kept in isolation. Her husband filed a new petition for habeas corpus with the Supreme Court, which ordered her release. The Committee determined that Nepal produced no evidence to show that, while Ms. Sharma was held in incommunicado detention, it met its obligations to protect her life, and that this failure resulted in a violation of article 6(1) of the Covenant. In addition, the Committee found that the enforced disappearance and incommunicado detention of Ms. Sharma, and the acts of torture and conditions to which she was exposed constituted violations of article 7 of the Covenant. Further, the Committee concluded that the enforced disappearance and arbitrary detention of Ms. Sharma amounted to a violation of article 9 (1-4) of the Covenant. The enforced disappearance deprived her of the protection of the law and her right to recognition as a person before the law in violation of article 16 of the Covenant. The anguish and distress suffered by Ms. Sharma’s husband and son, the third author, due to her enforced disappearance also were found to constitute a violation of article 7 of the Covenant. The Committee determined that neither Ms. Sharma did not receive an adequate remedy (246,000 Nepalese rupees), in violation of article 2 (3), in conjunction with articles 6, 7, 9 (1-4) and 16, and her husband and son received no interim relief, which constituted a violation of article 2 (3), read in conjunction with article 7 of the Covenant. Moreover, the Committee stated that Nepal was obligated to provide an effective remedy. This remedy should include: (1) conducting a thorough and effective investigation into the facts surrounding the detention and the treatment suffered in detention; (2) prosecuting those responsible for the violations committed and making the results public; (3) providing detailed information about the results of the investigation to Ms. Sharma and her family; (4) ensuring that any necessary and adequate psychological rehabilitation and medical treatment is provided; and (5) providing adequate compensation and appropriate measures of satisfaction for the violations suffered. Further, in order to prevent the occurrence of similar violations in the future, the Committee stated that Nepal should ensure that its legislation: (1) criminalizes torture and enforced disappearance and provides for appropriate sanctions and remedies; (2) guarantees that such cases give rise to a prompt, impartial and effective investigation; (3) allows for the criminal prosecution of those found responsible for such crimes; and (4) amends the 35-day statutory limit for claiming compensation for torture, in accordance with international standards.