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CASE LAW OF THE UNITED NATIONS HUMAN RIGHTS COMMITTEE 1977-2007: A HANDBOOK by Jakob Th. Möller* and Alfred de Zayas** ___________ * From 1971 to 1996 Chief of the Communications Unit (later Section/Branch) at the United Nations Division of Human Rights/Centre for Human Rights/Office of the High Commissioner for Human Rights until retirement from United Nations service in October 1996. Judge at the Human Rights Chamber for Bosnia and Herzegovina in Sarajevo, established pursuant to the Dayton Peace Agreement (1996-2003). President of the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina (2004), alternate member of the United Nations Sub-Commission on the Promotion and Protection of Human Rights (2004-2006). Professor of international law at the University of Akureiri (Iceland) (2008-). ** Professor of international law, Geneva School of Diplomacy. 2005--. Visiting Professor of law, Institut Universitaire de Hautes Etudes Internationales, Geneva (2004). Retired senior human rights officer and deputy to the Chief of the Communications Branch of the United Nations Centre for Human Rights (1994-96); Secretary, Human Rights Committee (1998-2000); chief of the Petitions Unit (2000-2002) at the Office of the United Nations High Commissioner for Human Rights; visiting professor of international Law, DePaul University College of Law, Chicago (1993-94); visiting Professor of international law, University of British Columbia, Vancouver (2003). This book is dedicated to Torkel Opsahl (1931-1993)***, Member of the Human Rights Committee (1977-1986), Professor of Law, University of Oslo, Human Rights Activist and Friend. ___________ *** In 1987 the authors together with the late Professor Torkel Opsahl published an article under the title "Application of the International Covenant on Civil and Political Rights under the Optional Protocol by the Human Rights Committee" in the German Yearbook of International Law, covering the jurisprudence of the Committee through its 28th session in July 1986. The article was subsequently translated and published in Dutch, Finnish, Japanese, Serbo-Croat and Spanish. Torkel was a distinguished member of the Human Rights Committee and was totally devoted to the cause of human rights. He passed away quite unexpectedly in September 1993, in the middle of his work, at his office in the Palais des Nations in Geneva, where he was Acting Chairman of the United Nations War Crimes Commission for the Former Yugoslavia. Table of Contents Pages Foreword by Andreas Mavrommatis, first Chairperson of the United Nations Human Rights Committee (1977-1987) Table of abbreviations Chapter I: Jurisdiction and activities 1) The individual in international law 2) Establishment and responsibilities of the Human Rights Committee 3) The Committee's caseload 4) Duration of the procedure and status of communications 5) Slow growth of Committee’s caseload, lack of sufficient Secretariat support Chapter II: Methods of work 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) 12) 13) 14) 15) 16) 17) 18) 19) 20) 21) 22) Registration of cases Urgent action, interim measures of protection Special Rapporteur on New Communications Working Group on Communications Case Rapporteurs Confidentiality Joinder of similar communications Severance of communications Review of a decision declaring a communication admissible Resubmission of a case previously declared inadmissible Joint examination of admissibility and merits Evidence and burden of proof Individual concurring and dissenting opinions Withdrawal of Committee members from consideration of cases under the Optional Protocol Oral hearings Representation of the parties Amici curiae Costs and language of submission Format and language of Committee decisions State responsibility Security of complainants and counsel Emerging jurisprudence (hard law/soft law) 23) General Comments as a restatement of case law Chapter III: Admissibility criteria under the Optional Protocol 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) 12) 13) 14) 15) Standing of the author (admissibility ratione personae) Authority to act on behalf of a victim Complainants subject to the State party’s jurisdiction Concept of "victim" under the Optional Protocol No hypothetical violation Preclusion ratione loci Preclusion ratione temporis Preclusion ratione materiae Reservations by States parties a) Reservations to the Covenant b) Reservations to the Optional Protocol Competence of the Committee vis à vis national law and decisions Substantiation of allegations Abuse of the right of submission Unreasonable delay of submission Preclusion under article 5(2)(a) of the Optional Protocol a) Another procedure b) The "same matter" submitted by a third party under another procedure c) Reservations to article 5(2)(a) to preclude successive examination d) What constitutes "examination" for purposes of article 5(2)(a)? e) What constitutes the "same matter" submitted by the same party? Exhaustion of domestic remedies (Optional Protocol article 5(2)(b)) a) Available and effective remedies b) Unreasonable prolongation c) Waiver Chapter IV. Substantive issues under the Covenant PART I Article 1: Self-determination PART II Article 2: General non-discrimination clause and right to a remedy Article 3: Equal rights of men and women Article 4: Derogation 1) 2) 3) 4) State of emergency Non-derogable rights Notification General Comments on article 4 Article 5: Best practices PART III Article 6: The right to life 1) Extra-judicial executions 2) Disappeared persons 3) Capital punishment 4) Mandatory death sentence 5) "Most serious crimes" 6) Right to request pardon 7) Extradition to face the death penalty 8) Deportation to face the death penalty Article 7: The right not to be subjected to torture 1) Physical torture and ill-treatment 2) Prolonged incommunicado detention 3) Mental anguish 4) Method of judicial execution 5) Death row phenomenon 6) Mental anguish following conviction in an unfair trial 7) Deportation to face possible torture Article 8: Prohibition of slavery and forced labour 1) Military service as a form of forced labour 2) Special duties of certain professions 3) Compulsory work of persons under detention 4) Employment programmes for the unemployed Article 9: The right to liberty and security of person 1) Security of person 2) Concept of "arbitrariness" 3) Continued detention after completion of term of 4) Disappearance 5) State abduction 6) Psychiatric detention 7) Detention pending deportation or during asylum proceedings 8) The right to be informed, at the time of arrest, of the reasons for arrest 9) The right to be brought promptly before a judge and to be tried within a reasonable time 10) The right to bail 11) The right to challenge the lawfulness of one’s arrest and detention (habeas corpus) 12) Detention in military context 13) Right to compensation for unlawful arrest or detention Article 10: The right to be treated humanely during deprivation of liberty 1) Humane treatment during detention a) The Uruguay years b) The Jamaican years c) Post-Jamaica jurisprudence 2) Segregation of detainees 3) Juveniles and rehabilitation of detainees Article 11: Prohibition of imprisonment for inability to fulfil a contractual obligation Article 12: The right to freedom of movement 1) Choice of residence 2) Right to leave one's own country, right to a passport 3) Limitations on the enjoyment of the right of freedom of movement 4) Right to enter one's own country Article 13: The right of an alien not to be expelled arbitrarily Article 14: The right to a fair hearing 1) Fair and public hearing a) The concept of "suit at law" b) Competent, independent and impartial tribunal c) Principle of non-arbitrariness d) Access to court e) Equality of arms f) Public hearing g) Expeditious proceedings h) Legal aid 2) Presumption of innocence 3) Minimum guarantees in the determination of any criminal charge a) Right to be informed of the charges b) Access to legal counsel and adequate time and facilities to prepare a defence -- Adequate time and facilities -- Access to documentation -- Translation of documents c) Right to be tried without undue delay d) Right to legal representation -- Counsel of one’s choosing -- Representation during preliminary investigation 4) 5) 6) 7) -- Free legal assistance -- Right to defend oneself in person e) Right to examine witnesses f) Right to interpretation g) Right not to be compelled to testify against oneself Juvenile persons Right to review of conviction and sentence a) Time element b) Mechanism for second instance appeal c) Review without oral hearing d) Factual retrial e) Imperative of right to appeal in capital cases f) Open issues Right to compensation for miscarriage of justice Ne bis in idem Article 15: Nullum crimen sine lege, nulla poena sine lege 1) Principle of non-retroactivity of penal legislation 2) Procedural changes in criminal law 3) Prosecution for acts committed in the service of a defunct State 4) Retroactive anti-terrorist legislation Article 16: The right to recognition as a person before the law Article 17: Right to privacy, family and reputation 1) Concept of family 2) Family life and expulsion 3) Family reunification 4) Family life after divorce or separation 5) Family, privacy and burial grounds 6) Privacy and change of name 7) Privacy and sexual orientation 8) Privacy and abortion 9) Honour and reputation 10) Surveillance of correspondence and telephone communications 11) Potential of article 17 Article 18: Freedom of thought, conscience and religion 1) Freedom of religion in the school system 2) Manifestation of religion 3) Conscientious objection to military service, military activities and expenditures Article 19: Freedom of expression 1) Freedom of opinion 2) Restrictions of political expression 3) 4) 5) 6) 7) 8) 9) 10) Radio and television Public demonstrations Hunger strike as a form of expression Restrictions on commercial speech Criminal insult legislation, prohibition of criticizing the head of State Contempt of court as a restriction of expression Incitement to racial hatred Expression of offensive historical opinions Article 20: Prohibition of war propaganda and the right to protection from advocacy racial or religious hatred 1) War Propaganda 2) "Hate Speech" Article 21: Freedom of assembly Article 22: Freedom of association Article 23: Protection of the family 1) Concept of the family 2) Family life and visiting rights of divorced or separated parents 3) Family life and separation through expulsion of a family member 4) Same sex family life Article 24: Rights of the child Article 25: Right to take part in political activity; equal access to public service 1) Right to representation 2) Right to run for office 3) Access to public service Article 26: The right to equality and the prohibition of discrimination 1) Early jurisprudence 2) Autonomous right to equality 3) Non-discrimination with regard to social security contributions 4) Non-discrimination on account of age 5) Non-discrimination with regard to the use of language 6) Non-discrimination with regard to sexual orientation 7) Gender discrimination with regard to surnames 8) Non-discrimination in the context of conscription and military service 9) Non-discrimination in the context of public and private schools 10) Non-discrimination in the administration of justice 11) Non-discrimination between citizens and non-citizens 12) Non-discrimination in respect of restitution or compensation for private property 13) Arbitrariness in property disputes 14) Inequality in the allocation of fishing quotas Article 27: Protection of minorities 1) Rights of indigenous peoples 2) Rights of linguistic minorities 3) Affirmative action Chapter V: Remedies Human Rights Committee 1979 Report HRC 1980 Report HRC 1981 Report HRC 1982 Report HRC 1983 Report HRC 1984 Report HRC 1985 Report HRC 1986 Report HRC 1987 Report HRC 1988 Report HRC 1989 Report HRC 1990 Report HRC 1991 Report HRC 1992 Report HRC 1993 Report HRC 1994 Report HRC 1995 Report HRC 1996 Report HRC 1997 Report HRC 1998 Report HRC 1999 Report HRC 2000 Report HRC 2001 Report HRC 2002 Report HRC 2003 Report HRC 2004 Report HRC 2004 Report HRC 2005 Report HRC 2006 Report and HRC 2007 Report Categories of recommended remedies Chapter VI: Follow-up to the Committee’s Views 1) Committee’s gradual expression of a follow-up interest 2) Legal basis for the Committee’s follow-up competence 3) Mandate and appointment of the Special Rapporteur on Follow-up 4) Responses received by the Committee 5) 6) 7) 8) 9) Remedies provided by States parties Problems of implementation Enabling legislation Follow-up on the basis of article 40 of the Covenant Meeting of States parties BIBLIOGRAPHY APPENDICES: States parties to the Optional Protocol (as at 31 December 2007) Members of the Human Rights Committee 1977-2007 Rules of Procedure of the Human Rights Committee concerning the Optional Protocol Procedure (as amended up to 2007) Mandate of the Special Rapporteur on New Communications Mandate of the Special Rapporteur on Follow-up of Views Status of communications INDEX