1.      Introduction

This communication relates to the allegation submitted by Mr. Nuro Maliv (herein referred to as the Author). On 13 May 2016, the author boarded a train to Sumona to attend a European Union- Kolasia Summit.

Nonetheless, on reaching Sumona region, the author was stopped by the police; questioned him and checked his identity documents. The author also accompanied the police officers to the police station for further questioning and recording of Statements. Because of the information linking Mr. Nuro Maliv to the protest rallies, the author was stopped and questioned about his acquaintances and the purpose of his travel. While at the police station, he was detained for hours and dissuaded from going to Sumona.

Thus, the author submits that Kolasia State has violated his rights to association, movement, and liberty. Besides, Mr. Nuro believes that the State failed in investigating his claim about being denied a public and fair hearing.

2.      Admissibility of claims

For any communication to succeed before the HRC (herein referred to like Human Rights Committee), meeting the admissibility threshold becomes a mandatory commitment. Admissibility criteria fall under the following procedural requirements.

A.    Ratione Personae

In this communication, the author alleged that his right to liberty and security, movement, association, and assembly was violated as provided for under ICCPR. Therefore, the HRC would admit the author’s prerogative.

Article one of the First Protocol (OP) requires that any committee is under obligation to receive complaints in which persons who claim that they have been violated by a State, which is assigned to Optional Protocols (OP), and the (ICCPR) that is, the  International Covenant on Civil and Political Rights). Besides, the litigant should prove that the violation is provable beyond doubt to the lacuna by the State within its jurisdiction.[1] Therefore, any person has the right of standing if he or she is a victim of infringements by a State, which has ratified ICCPR. The article states, “A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights outlined in the Covenant. The Committee shall receive no communication if it concerns a State Party to the Covenant which is not a Party to the present Protocol.” The HRC stipulates what the victim requirement entails. For instance, Des Fours v. the Czech Republic, HRC held that distinction on the grounds of citizenship was discriminatory and arbitrary against an individual who suffered related injustices because of State action thus, violated the right to equal protection of the law.[2] The HRC found the State in contempt of article 26 of ICCPR. The section provides for equal protection of persons without discrimination.[3] The committee, therefore, ruled the communication relevant since there was actual interference with the enjoyment of the rights guaranteed under ICCPR.

B.     Rationae Materiae

Submission of communication can only be made on the grounds of the violation of substantive rights reckoned in the ICCPR. Therefore, this means that the HRC does not handle cases outside the substantive rights. Regarding the present case, the HRC can contemplate the conveyance of the author as he claims to suffer from the infraction of his powers which are protected by ICCPR, and the liable State is a member of the treaty. Allegations regarding degrading treatment, arbitrary detention and discrimination are protected under ICCPR; thus; it is possible to yield to a grievance to the HRC if the involved State is a party to the OP. However, a case may be dismissed if a substantive claim is missing or less severe about being classified under prohibited forms of violations. For instance, an individual may suffer insults from a police officer, which is degrading, but the treatment may not be severe enough for the establishment of admissibility of the claims.[4] Another case may arise in which a person fails to submit enough evidence that makes the communication admissible. In Bazarov v. Uzbekistan, the claim of torture towards the complainant during a pre-trial investigation was found objectionable because of apparent substantiation lacking.[5]

C.    Rationae Temporis

Basing on Article 1 of the OP, the submission of complaints is subject to the membership of the Optional Protocols. Complaints can strictly be lodged against States that have ratified ICCPR. Regarding the requirements, Kolasia being a member State approved the Optional Protocols on 1 January 2001 and ICCPR; therefore the communication is possible. Three months after giving the formal consent to the OP, complaining against the State is allowed by law. However, if the government continues with the subsequent violation after the three months of the OP is effected, a person can submit a petition to the committee to complain about the breach of the accord. For instance, in Könye and Könye v. Hungary, the HRC maintained that a continued breach would be considered after the ratification of the OP by clear implication of past infringement by the Member State.[6] Another case may arise in which an individual is jailed in an awful State before the ratification of the ICCPR treaty, but the detention in the appalling continues after the required date of membership to the OP, an individual may submit a complain claiming a violation of the substantive rights. In a separate case, Sankara et al. v. Burkina Faso complaints raised against the State showed the government’s failure to investigate the assassination of the complainant’s husband. Although the murder took place in 1987, and Burkina Faso ratified OP in 1999, the case continued after the relevant date. The State’s failure in handling the case emerged in a blatant lie and misinformation provided to the family regarding the circumstances of the death of the complainant’s husband.[7]

D.    Rationae Loci.

As stipulated under Article 2(1) of the ICCPR, and Article 1 of the OP, only people subjected to the jurisdiction of a government which is party to it, are entitled to relay and submit information to the committee. The communication presented herein indicates that the claims were committed under the authority of State of Kolasia, and the subject of violation is under its jurisdiction as well. Henceforward, the committee should address the application. ICCPR requires State parties to protect, value, and respect, value citizens as well as their rights. As it is evident in Article 2(1) of the ICCPR,^[8]The breach results in the invoking of Article 1 of the OP enabling submission of complaints against States, this would take place even when outside the territories following a past offense. In Gorji-Dinka v. Cameroon, the HRC held that a person is allowed by the committee to submit a complaint against a State of previous violation regardless of him or her not staying inside the liable State at the time of the submission.[9] The ratification of the treaty also extends to the States colonies unless stated otherwise. For instance, in Kuok Koi v. Portugal, the committee held that the application of OP to Macao was inadmissible since the OP applied to Macao under Portuguese rule.[10]

E.     Exhaustion of domestic remedies.

Other protocols require a person to exhaust all the private legal under-takings before lodging complaints to the HRC. Article 5(2) (b) of the Optional Protocol states, “the Committee shall not consider any communication from an individual unless it has ascertained that…the individual has exhausted all available domestic remedies.” However, the guideline makes considerations where domestic remedy takes too long. Sometimes the violation is recognized by the state; thus the law cannot be challenged, or a person not required appealing an action by the state laws. In such circumstances, the application is appropriate.^[11] Similarly, domestic remedies may not be exhausted during submission of the complaints, however, exhausted by the time of admissibility hence considered satisfying Article 5(2) (b). The presentation is rendered inadmissible if domestic solutions are not tired, but can be submitted again if the following internal legal mechanisms are exhausted without satisfaction. The committee is lenient on the exhaustion of domestic remedies. Administrative remedies are ineffective if they are incredibly discretionary. Hence, a person is not required to exhaust them. For instance, in Singarasa v. Sri Lanka, the committee held that seeking a presidential pardon for a longer prison sentence did not qualify as a domestic remedy to be exhausted before the admissibility of the submission.[12] An individual is expected to raise the substance of the complaint to the local authorities for the claim to be reasonable. For example, in Grant v. Jamaica the committee held that domestic remedies had not been exhausted. The complainant did not provide steps taken to bring the claim to the attention of prison officers and failed to indicate any investigations carried out in response to complaints.[13] The present communication is relevant because the author exhausted all the domestic remedies. The author’s request for an appeal to the Supreme Court was also dismissed on 18 July 2018.

F.     Delay

While making submissions of a claim to the committee, time is not a factor considered. There is no time limitation for presenting a communication provided for in the Optional Protocol. Therefore, delay in submission does not guarantee a breach of substantive rights. There is no standing period for determining a remedy for the case. The time varies depending on the complexity of the situation. For example, in Fillastre and Bizoarn v. Bolivia, the HRC concluded that “a delay of over three years for the arbitration of the case at first instance, ignoring the availability of other appeals, was “unreasonably prolonged” within the meaning of Article 5, paragraph 2(b) of the OP.”[14]

G.    Anonymity.

HRC does not consider anonymous communication. Article 3 of the OP, in conjunction with rule 96 (a) of the Human Rights Committee procedures, the author of the claims must be known. Since the author in the present case is a well-known and active head of Rula Human Rights Union, the committee will not be dissuaded from considering his claims.

H.    Non Simultaneous Submission to another International Body.

The alternative protocol provides for redress, and this can be applied for if the litigant is not yet availed to another international legal process or instrument. Regarding Article 5(2) (a), the HRC abhors accusations, which are also captured in other statutory devices. The Article state, “the Committee shall not consider any complaint from an individual unless it has ascertained that the same matter is not being examined under another procedure of international investigation or settlement.” For example, in Wright v. Jamaica, the committee noted that submission of the claim had been made to the Inter-America Convention on Human Rights^[15] the author qualifies in all the above acceptability methods and can raise complaints to the HRC regarding the conduct of Kolasia government.

I.        Misapplication of the rights of submission.

Occasionally, communication may not be suitable because of the misuse of rights of submission. It may arise from the presentation of false information by the victim to the Committee. It may also occur if the communication is made to HRC after a long period has passed since the occurrence of the claim. For example, in Gobin v. Mauritius, the committee found the claim objectionable in that the submission happened five years past the election in question. Although there is no time limit for submitting a communication to the HRC, the Committee stated, “The alleged violation took place at periodic elections held five years before the communication was submitted on behalf of the alleged victim to the Committee with no convincing explanation in justification of this delay. In the absence of such explanation, the Committee believes that submitting the communication after such a time has passed should be viewed as an abuse of the right of submission, which makes the communication inadmissible under Article 3 of the Optional Protocol.”[16] In the submission, the author’s intentions are not ill-founded as he has shown that his substantive rights, as provided and protected under ICCPR have been violated. Thus, HRC will consider the submission to look into the merits of the claims.

J.      Interim measures.

Individual complaints from now on also referred to as “individual communications” may be presented to the Committee under the Optional Protocol to the ICCPR regarding claims of the violations by State parties of their jurisdiction. As per the rule of procedure, before the adoption of the views, the Committee may forward preliminary measures in waiting of “irrevocable damage to the plaintiff.” In the meantime, the HRC ought to inform the State party to desist from the said violation.[17]

3.      Merits

i.        Interference with privacy

The author claimed that the police officers unlawfully checked his identity documents. He was also registered in the surveillance system without his consent; thus, violated his right to privacy as provided for in Article 17 of ICCPR. Therefore, the state failed in its mandate to protect the author’s personal information and identity. Article 17 of the ICCPR state,

1. “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation….”
2. “Everyone has the right to the protection of the law against such interference or attacks.”

a.      Scope of protection

The ICCPR allows for limitations regarding the right to privacy under certain conditions. Any interference as set out in General Comment 16 must be lawful and comply with the objectives, aims, and provisions of the ICCPR. The HRC consider interference with privacy a violation as states could introduce and legitimize oppressive interferences. The right to privacy is firmly established in Article 17, which protects individuals against arbitrary intrusion by the state and authorities. The state, therefore, should respect and protect the right to privacy of its citizens. Confidentiality is vital in democratic societies and engraved in the legal documents of the States. Starting international legal instruments to domestic laws, privacy is a Universal Human Right which must be sustained and protected.

Article 2 (1) of the ICCPR state,

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or another opinion, national or social origin, property, birth or another status.

The HRC case laws

The Committee has addressed in the past cases related to the present communication. In Pretty v. The United Kingdom, the complainant submitted that her right to privacy was violated citing that the prohibition of assisted suicide contradicts the ICCPR provision of the right to self-determination.[18] The committee held that the law from conduct that might affect her respect for private life prevented the complainant. Invoking necessity in the case, interference corresponds to the legitimate aim pursued.

In Glass v. The United Kingdom, the applicant indicated that a hospital staff administered medical treatment to her critically disabled child against her wishes, thereby violating the right to privacy for both of them. The Committee found it necessary to examine the necessity of the violation regarding the health status of the child.[19]

b.      Interference

Since Article 17 of the ICCPR provides for conditions under which the right to privacy can be withheld, assessing the violation as claimed by the author forms the basis of accepting the application by the HRC. First, the author was not a security threat to the state as it was made to appear. Subsequently, the permanent establishments at Sumona had legalized the gathering he was attending. Article 17 outlaws illegal interference with the privacy of people. Concerning privacy, an individual should not undergo erratic intervention relating to his or her privacy. [20] The law protects every individual against the interference of privacy. Hence, the government failed in her mandate to secure the plaintiff’s information and identity. As for the case of the author, such violation is not provided under any condition in the ICCPR. General Comments 16 makes it clear that states should adopt legislative measures to give effect to the prohibition of the violation of privacy. The word “unlawful” implies that interference may occur except in the circumstances envisaged by the legal provisions. In the committee’s view, the concept of arbitrariness applies the protection of the right, which even during an interference should be executed regarding the objectives, aims, and provisions of the Covenant. Paragraph 9 of the General Comment state,

States parties are under a duty themselves not to engage in interferences inconsistent with article 17 of the Covenant and to provide the legislative framework prohibiting such acts by natural or legal persons.[21]

Based on the facts in this communication, exceptional from some of the above case laws, the HRC would consider the checking of document and identity by the police officers, and the registration of the author’s name in the Control Watch Database unlawful, and an interference with the right to privacy. Most importantly, rights to privacy are not sheer considerations to be bargained away anyhow in disguise of state security. Any prospective intrusion on the right to privacy is dealt with under the provisions of Article 17 of the ICCPR vis-a-vis other legal instruments.

c.       Justification

Concerning whether the violation of the right of the author with regards to privacy can be justified under the law and is a reservation to the provisions of Article 17 of the ICCPR. Compliance with Article 17 of the ICCPR prioritizes the guarantee of de facto and de jure, even when it is a question of necessity under which the right is limited. The state ought to ensure that the searches conducted on the author were done considering the dignity of the applicant. Article 17 prohibits unlawful and arbitrary interference with family, privacy, home, and illegal attacks on reputation and honor. The Committee makes it clear that the house is understood in the context of the place where an individual resides or conducts his activities. Interference with the author’s privacy while in the train, and or in Sumona is not justified under any law. The modern society takes issues of privacy seriously especially with violent threats emanating from cyber-attacks where data belonging to a person may be used to commit an offense. The motive for sharing personal data relating to the applicant by the VV Interior Department of Transport via telex to the local branches is also not clear. The state’s point of reference is that the complainant had any intention of participating in an offense by attending a conference which the state deemed extremist. Therefore, the law enforcement officers were on high alert regarding his activities and sort to intercept him through diversion of him taking part in the rallies at Sumona. The government made it necessary that personal sharing details were outstanding as well as checking his identity and other documents relating to him to determine whether he owned extremist literature or otherwise. This violation was not done in the interest of the public, and no provision under ICCPR justifies the conduct of the state authorities.[22]

Regarding the present communication, the author had no ill-founded intentions to participate in an activity that threatened the security of the State. The police officers and the Interior Department of Transport acted in violation and treated the author in a manner unjustified as per Article 17 of the ICCPR.

ii.                  Violation of the right to liberty and security.

Dispossession of liberty imply any form of confinement or placement of an individual in private or public custodial setting and not permitted to leave at will by the authority or administrative order.

Liberty and security are necessary provisions under Human Rights laws regardless of domestic or international legal frameworks. The law requires a person should not be subjected to arrests and arbitrary detention unless done concerning the law under extreme conditions. The rule applies to all states, and protect an individual from all forms of detention. Article 9 of the ICCPR guarantees the right to liberty and security enjoyed by persons. The Article states,

“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and following such procedure as are established by law.”[23]

a.      Scope of protection

General Comment 35 places the right to liberty and security among the first three substantive rights.[24] The committee notes that the security and liberty of a person are vital not just, for the sake, but their interference has in the past been subject for violating the enjoyment of other rights. Liberty implies the right to live freely without the confinement of the body. Security, on the other hand, is concerned with the freedom from injury whether of mental integrity, mind or the body. Article 9 provides for liberty and security to “everyone” boys and girls, persons with disabilities, women, and men, and has no boundaries in its application.

Case laws.

Some of the cases handled before by the HRC applies to the present submission. For example, in Jackson Cherop v. Uganda, the committee held that the complainant was detained for 39 days before being charged in a court of law; thus the state violated his right to personal liberty.[25] The detention violated legal procedures requiring an individual to be charged within a specific period. The Committee also held that the right to an order of habeas corpus could not be derogated. Therefore the State acted in contempt of Article 9 of the ICCPR. In Toonen v. Australia, the Committee resolved that the provision of reasonableness as in Article 17 of the ICCPR means that any violation of the privacy of an individual must be necessary due to relevance to the case.[26]

b.      Interference

Right to liberty puts the provision for the freedom for a person to act as he or she pleases so long as the rights of others prevail as well. The arrest and detention at the police station go against the freedom of the applicant.[27] The law requires that the author is given adequate information before the arrest as well as the reasons for the arrest[28]. Informing the person of the charges enables him or her to seek assistance in getting a release as mentioned especially if they are unfounded. It also ensures the arrest occurs on an official basis and not any other motivation from the state officials conducting the arrest.[29] Since an arrest is the beginning of the denial of liberty, the law applies despite the informality or conventionalism involved in the arrest of the legitimacy of wrong reasons the arrest happens. The State, therefore, interfered with the author’s right to liberty when detained at the police station. The committee may consider the author’s submission basing on Article 9 of the ICCPR, which provides for protection and respect for the right to liberty.

c.       Justification

An individual’s liberty is not absolutely guaranteed; however, it is always violated especially when enforcing criminal laws.[30] However, the government did not have any legal grounds to forestall the author on the ground of his innocence. Article 9 states that liberty and security are valued and protected.[31] As an important and vital right, a person is entitled to liberty, life, and security, liberty, and life. Article 9 of ICCPR has great importance for an individual as well as the society as a whole since it relates to other provisions of the law. Due to General comment 35, liberty of an individual is related to the freedom from physical confinement, and security relates to mental integrity as well as injury to the mind or body, and the connection to any wrongdoing or criminal activities.[32] Liberty and security in a democratic society are not compromised. The focus and emphasis on the freedom of people are to avoid, harassment, unfair treatments, and willful infringement on vital human rights. Administrative detention, for example, forestalled in the case of the author is ill-advised and uncalled for, given that the activities of an individual do not jeopardize the security of the society. Paragraph 7 dictates that the government safeguards its peoples’ safety and liberty from being interfered with by external forces or third party.[33]

4.  Violation of the duty of active investigation.

The Committee observes that equality before courts and tribunals is essential in safeguarding the use of the rule of law internationally or locally.[34] Article 14 (1) foresee public, equal, and fair hearings before the courts.[35] The fair trial rights entail basic rules, minimum guarantees as well as other provisions anchored on the rule of law.[36] Public and just proceedings of cases are what informed the human rights document like ICCPR and others. Equality before courts and tribunals is mandatory no matter the processes. The balance before the tribunals or court revolves around the access to the courts during the determination of the criminal case as well as the commitment to justice.[37] Successful justice ensures that no persons rights are violated due to the process of seeking the truth. Article 14 of the ICCPR state,

“All persons shall be equal before the courts and tribunals….”

The Human Rights Committee holds that effective enjoyment of the access to justice requires tribunals and courts to have the competence to handle cases concerning an individual’s obligations and rights. The Committee states,

“The failure of a State party to establish a competent tribunal to determine… rights and obligations or to allow access to… a tribunal in specific cases would amount to a violation of article 14 if such limitations are not based on domestic legislation, are not necessary to pursue legitimate aims such as the proper administration of justice, or are based on exceptions from jurisdiction deriving from international law such, for example, as immunities, or if the access left to an individual would be limited to the extent that would undermine the very essence of the right.”[38]

Access to justice entails seeking and obtaining reparation and remedies guaranteed under Article 2(3) of the ICCPR. For example, in Jackson Cherop v. Uganda, the Committee ruled that all detained persons are at liberty as provided under Article 9(4) of the ICCPR to take proceedings before a court, and to have their cases determined whether their detention is lawful. The Committee found the state of Uganda in violation of habeas corpus.[39]

The burden of proof.

The conjecture of innocence puts the burden of proof of the claim. The discharge of the charge requiring the evidence of the guilt beyond reasonable doubt. Standard of proof.

The presumption requires that the accused be given the benefit of the doubt since no guilt is presumed until charges are made. The committee notes that treatment provided for under Article 14 take precedence during the trials, and discourage prolonged pre-trial detention, which may interfere with legal proceedings. In their consideration, the Committee holds that all allegations relating to a person’s rights “must be investigated impartially by competent individuals to ensure an effective remedy.”[40] The results of the investigation should attract full force of the law, and compensating the victim by punishing the perpetrators.

Regarding the present submission, the author indicates that due diligence was not followed, and not guaranteed the fair and public hearing as provided for under Article 14(1) of the ICCPR. The courts failed to launch investigations against the police officers who violated the rights of the applicant. Besides, the state failed in putting to task the VV Interior Department of Transport for interfering with the author’s privacy. Considering how the case was handled locally, the Committee may find the State of Kolasia in violation of substantive rights of the author as protected under the ICCPR.

Conclusion

In conclusion, the author claims that the authorities unlawfully searched his identities; his name registered in a Control Watch Database and denied fair and public hearing in domestic courts of law. The applicant also raised questions over his detention and questioning at the police station, following a threat to use force against him. From the analysis of the state conduct, Article 14, 9, and 7 of the ICCPR was violated by the State of Kolasia. Whereas the state is charged with the responsibility of protecting and respecting the rights of its citizens, the state failed in its jurisprudence.

Hence, as required by Article 5(4) of the Optional Protocol, the complainant meets the threshold of submitting the communication to the HRC for consideration. The State of Kolasia as well as the mandate to provide an adequate remedy for the applicant, and request a summary of this effect. Both the parties do not withstand their position must reach a legal resolution to end the violation.

 

 

 

Bibliography.

 

[1] OP Art. 1 and ICCPR, Art. 2

[2] Des Fours v. Czech Republic 747/1997.

[3] ICCPR, chapter 26.

[4] Article 20 of the ICCPR

[5] Bazarov v. Uzbekistan (959/00), para 7.3.

[6] Könye and Könye v. Hungary (520/92), para. 6.4.

[7] Sankara et al. v. Burkina Faso (1159/03), paras. 6.3 and 12.2.

[8] United Nations, Treaty Series, Vol. 99, p.171

[9] Gorji-Dinka v. Cameroon (1134/02).

[10] Kuok Koi v. Portugal (925/00), para 6.3.

[11] Joseph, Schultz, and Castan, 31, para. 6.20

[12] Singarasa v. Sri Lanka (1033/01)

[13] Grant v. Jamaica (353/88)

[14] Fillastre and Bizoarn v. Bolivia (336/88), para. 5.2.

[15] Wright v. Jamaica

[16] Gobin v. Mauritius (787/97), para. 6.3.

[17] HRC, Rules of procedure of the Human Rights Committee, Rule 92

[18] Pretty v. The United Kingdom, 2346/02.

[19] Glass v. The United Kingdom, 61827/00

[20] General Comment No. 16.

[21] Ibid para 9.

[22] Ibid para. 5.

[23] ICCPR Article 9 para. 1

[24] General Comment 35. Para. 1.

[25]   Jackson Cherop v. Uganda 99/00

[26]  Toonen v Australia, Communication No.488/1992, UN Doc CCPR/C/50/D/488/1992 (1994), para 8.3.

[27]  General Comment 35, para. 24.

[28]  Ibid.

[29]  General Comment No. 35, para.25.

[30] General Comment 35, para. 12.

[31] General Comment 35,

[32] General Comment 35, para. 1,2,3.

[33] General Comment 35, para. 7.

[34] General Comment 32, para.2.

[35] General Comment 32, para. 1.

[36] Journal of Politics and Law, Vol. 2, No. 4.

[37]  Ibid.

[38]  General Comment 32, para 18.

[39] Jackson Cherop v. Uganda 99/00

[40] HRC, Statkevich and Matskevich V Belarus, (2133/2012)