Credit: UN Photo/Jean-Marc Ferré
During the fall of 2014, at each of their respective sessions, the Committee on the Rights of Persons with Disabilities (CRPD), the Human Rights Committee, the Committee on the Elimination of Discrimination against Women (CEDAW Committee), and the Committee Against Torture (CAT) adopted key decisions on topics including the definition of disability; enforced disappearances; freedom of religion; freedom of expression; juvenile life imprisonment; gender-based violence, including in situations of domestic violence; and risk of torture upon return to Algeria, Iran, Kosovo, and Yemen.
Committee on the Rights of Persons with Disabilities Jurisprudence
The Committee on the Rights of Persons with Disabilities (CRPD) adopted two decisions under the Optional Protocol to the Convention on the Rights of Persons with Disabilities during its 12th Session held from September 15 to October 3, 2014.
In S.C. v. Brazil, while the CRPD ultimately found the communication inadmissible on the basis that the author had not exhausted domestic remedies, the Committee used the opportunity to elaborate on the definition of disability under the Convention on the Rights of Persons with Disabilities (ICRPD).
In this case, the author, a Brazilian citizen who worked for a State-run bank (Banco do Brasil), was demoted after being on medical leave for three months following a series of major motorcycle accidents that resulted in permanent disability to her knee and other complications. Subsequently, the bank refused her request for a transfer to a different branch. The author thus claimed that the bank’s policy of demotion was discriminatory and that it violated her rights under the ICPRD. See Committee on the Rights of Persons with Disabilities, S.C. v. Brazil, Communication No. 10/2013, 28 October 2014, at para. 2.2.
In response to the State’s assertion that the author’s knee injury did not qualify as a disability under the Convention, the CRPD clarified that the definition of persons with disabilities does in fact “include, but [is] not limited to, those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others.” Id. at para. 6.3.
The Committee noted that the author’s physical impairment, coupled with additional barriers, did prevent her from participating fully and effectively in society on an “equal basis with others.” The Committee also explained that the difference between illness and disability is “a difference of degree,” rather than “a difference of kind” and that what is initially an illness may develop into a disability. Id. at para. 6.3.
Finally, in response to the State’s claim that the bank’s demotion policy and transfer denial were based on maintaining an “equilibrium in staff” among various offices, rather than on discrimination based on disability, the Committee noted that “discrimination can result from the discriminatory effect of a rule or measure that is neutral at face value or without intent to discriminate.” While the Committee did not address this question because it found the complaint inadmissible, it noted that the relevant question is whether the Bank’s policy of demoting employees who are on medical leave for more than 90 days “had a disproportionately adverse impact on the author.” Id. at para. 6.4.
In Marie-Louise Jungelin v. Sweden, the author, an individual with severe sight impairment, brought a complaint against Sweden, claiming that her rights to equality and non-discrimination as well as work and employment were violated when, despite the fact that she met the required qualifications of the job for which she had applied, she was not considered because her potential employer’s computer system could not be adjusted for her sight impairment. See Committee on the Rights of Persons with Disabilities, Marie-Louise Jungelin v. Sweden, Communication No. 5/2011, 14 November 2014, at paras. 2.1-2.4
The Committee explained that under the ICRPD’s definition of “reasonable accommodation,” while a State is required to take steps to ensure that persons with disabilities can enjoy their rights on an equal basis with others, these steps cannot impose “a disproportionate or undue burden.” Therefore, the CRPD concluded that the author’s rights were not violated, given that the measures that would have been required to accommodate Jungelin’s condition would have constituted an “undue burden” on the State. Id. at paras. 10.4-11.
Human Rights Committee Jurisprudence
The Human Rights Committee, during its 112th Session, held from October 7 to October 31, 2014, adopted 47 decisions that had been submitted under the Optional Protocol to the International Covenant on Civil and Political Right. Of the 47 complaints that it reviewed, the Committee found violations in 35 communications, no violations in four communications, and found eight communications inadmissible.
The Human Rights Committee found violations of the International Covenant on Civil and Political Rights (ICCPR) in communications involving topics including: freedom of religion (See Human Rights Committee, Leven v. Kazakhstan, Communication No. 2132/2012, 5 January 2015), family life in the case of the deportation of a father with small children (See Human Rights Committee, Husseini v. Denmark, Communication No. 2243/2013, 26 November 2014), the enforced disappearance and killing of an individual as part of the armed conflict surrounding the independence of Bosnia and Herzegovina (See Human Rights Committee, Kožljak v. BiH, Communication No. 1966/2010, 27 November 2014), freedom of expression of an individual who was prevented from distributing leaflets calling for a demonstration to commemorate Independence Day in Belarus and was subsequently arrested (See Symonik v. Belarus, Communication No. 1952/2010, 18 November 2014), and the right of a prisoner in Azerbaijanan to be treated with humanity and respect for his dignity (See Quliyev v. Azerbaijain, Human Rights Committee, Communication No. 1972/2010, 19 November 2014).
Among several noteworthy decisions that were adopted, Blessington & Elliot v. Australia involved two minors who were sentenced to life without parole for the rape and murder of a woman. In its discussion, the Committee cited to the Convention on the Rights of the Child, according to which “neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age.” The Committee then went on to hold that the life sentences that had been imposed on the applicants violated the ICCPR, including the right to be free from torture or cruel, inhuman or degrading treatment or punishment and the right of minors to protection. This decision was based on factors including the length of time that was required to pass before the applicants could apply for release on parole (30 years), the conditions they would have to meet in order to be released, and the fact that they were minors when they committed the crimes (14 and 15 years old). Human Rights Committee, Blessington and Elliot v. Australia, Communication No. 1968/2010, 17 November 2014, at paras. 2.4, 2.6, 3.2, 7.12, 8.
Committee on the Elimination of Discrimination against Women Jurisprudence
During its 59th Session, held from October 20 to November 7, 2014, the Committee on the Elimination of Discrimination against Women (CEDAW Committee) reviewed three individual communications under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. The CEDAW Committee found all three communications inadmissible on various grounds.
In T.N. v. Denmark, a US citizen, married to a Danish citizen, claimed that both she and her two daughters were discriminated against and that the State had failed to protect them from her husband’s violent behavior, both by failing to bring criminal proceedings against him and by not granting her custody. The CEDAW Committee found the complaint inadmissible based on the lack of sufficient documentation submitted by the author to support her domestic violence claim, especially with respect to her claim that State authorities had failed to investigate her allegations. Additionally, the Committee found that the author failed to provide sufficient materials with respect to her claim that she suffered gender-based discrimination during the custody proceedings. CEDAW Committee, T.N. v. Denmark, Communication No. 37/2012, 19 December 2014, at paras. 2.1-2.6, 3.1-3.2, 12.8-13.
In S.O. v. Canada, the author, a Mexican national, claimed a violation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) based on the fact that despite her claim that she would be a victim of gender-based violence at the hands of her former partner if she were to return to Mexico, and that Mexican authorities would not adequately protect her, she was denied refugee protection and was given a deportation order by Canadian authorities. This deportation order was based on the finding that she had not availed herself of “internal flight alternatives,” or remedies and services available in Mexico. The Committee found her submission inadmissible on the basis that, among other things, she had not provided sufficient information to support her claim that her former partner was still a threat to her, nor that she would face a “real, personal, and foreseeable risk of serious forms of gender-based violence” if she were to return to Mexico. CEDAW Committee, S.O. v. Canada, Communication No. 49/2013, 19 December 2014, at paras. 1.1, 2.3, 3.1, 9.1-9.8.
In Y.C. v. Denmark, the author, a Chinese national who had sought and been denied asylum in Denmark, claimed that her deportation would constitute a violation of her rights as guaranteed under CEDAW. Y.C. applied for asylum based on the claim that she if she were to return to China, she would be subject to gender-based violence by her former partner and that Denmark was obligated to refrain from deporting persons at risk of being subjected to gender-based violence. The CEDAW Committee concluded that the author had failed to substantiate her claims, given that she had not tried to raise her claims with respect to being a victim of domestic violence or being denied custody of her child with Chinese authorities, nor did she provide any evidence to support her claim that if she had done so, the authorities would not have adequately protected her. Similarly, she did not explain why she had not attempted to see her child or to obtain custody before she left China nor did she demonstrate the gender-based discrimination element of her claim that she would be persecuted on the basis of her Catholic religion if she were to return to China. See Committee on the Elimination of Discrimination against Women, Y.C. v. Denmark, Communication No. 59/2013, 19 December 2014, at paras. 1.1, 6.3-6.7, 7.
Committee Against Torture Jurisprudence
The Committee Against Torture (CAT) held its 53rd Session from November 3 to November 28th, 2014 during which time it reviewed 13 individual complaints under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. CAT found violations in eight communications, no violations in four communications, and found one communication inadmissible.
CAT found violations of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (Convention against Torture) in complaints alleging that an individual was at risk of torture if deported to the following countries: Iran (Committee Against Torture, X. v. Switzerland, Communication No. 470/2011, 19 January 2015; Committee Against Torture, Hussein Khademi et al v. Switzerland, Communication No. 473/2011, 20 January 2015; Committee Against Torture, Azizi v. Switzerland, Communication No. 492/2012, 19 January 2015; and Committee Against Torture, Tahmuresi v. Switzerland, Communication No. 489/2012, 20 January 2015); Kosovo (Committee Against Torture, R.S. et al. v. Switzerland, Communication No. 482/2011, 19 January 2015); Algeria (Committee Against Torture, Mopongo, et al. v. Morocco, Communication No. 321/2007, 13 January 2014); and Yemen (Committee Against Torture, Fadel v. Switzerland, Communication No. 450/2011, 13 January 2015).
Two key decisions include the following: in N.Z. v. Kazakhstan, the author, a Kazakhstan national, claimed that her son was a victim of beatings and ill-treatment at several stages of his detention and that the State had failed to investigate these allegations, violating its obligations under the Convention against Torture. See Committee Against Torture, N.Z. v. Kazakhstan, Communication No. 495/2012, 19 January 2015, paras 3.1-3.4.
The State argued that the communication was inadmissible on the basis of “ratione temporis,” meaning that the alleged torture happened before the State made a declaration recognizing CAT’s competence to receive and consider individual communications. CAT, however, found the communication admissible, given that the alleged failure of the State to investigate the torture claims and to provide redress continued even after the State recognized the Committee’s competence to consider individual communications. See id. at paras 12.1-12.4
However, in considering the merits, CAT found that the State had not violated its obligations, given that it had taken steps to investigate the alleged torture. Thus, the State was not in violation of its obligation to carry out a “prompt, impartial, and effective investigation” into the alleged torture. See id. at paras. 13.5 and 14.
In Niyonzima v. Burundi, the author, a national of Burundi, claimed that he was a victim of torture when he was arrested, detained, and subjected to torture at the hands of police officers as well as other State agents. See Committee Against Torture, Niyonzima v. Burundi, Communication No.514/2012, 13, January 2015, paras. 3.1-3.4.
Among other violations, CAT found that the State failed to: take legislative, administrative, judicial or other measures to prevent torture when Mr. Niyonzima was beaten and detained without legal grounds and was denied the right to contact defense counsel or to access medical assistance; investigate, in a prompt and impartial manner, the torture allegations, given that eight years after the events, State authorities had not carried out an investigation; prevent torture, as evidenced by the fact that Mr. Niyonzima had been detained in overcrowded and unsanitary cells and had been denied medical attention, despite his deteriorating health; and provide any form of redress which the State should have provided given Mr. Niyonzima’s health problems which resulted from the ill-treatment he suffered. See id. at para. 8.1-8.8.
Additional Information
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