CASES:

AYDIN V. TURKEY

FACTS:

Aydin, together with her family were apprehended by the police and were brought and detained to

the police headquarters for allegedly accepting PKK members to their house. While detained, Aydin

and her family members were subjected to torture and Aydin was also raped. After a few days, they

were taken to the mountains where they were questioned about the location of the PKK shelters

and were subsequently released. Aydin was subsequently subjected to several medical examinations

which mentioned that she suffered bruises around her inner thighs and that her hymen was torn.

However, the exact date on which it was torn could not be determined. Due to this, Aydin now files

a complaint against the government for violating Art. 3 of the Convention.

The Government challenged the credibility of the applicant since upon its investigation, there was

no sign that Aydin was detained since her custody was not registered and that there were

inconsistencies with the way Aydin retold the detention and hence there is a question to her

credibility. With regard to the medical report, it contends that a former PKK member mentioned to

them in an interview that Aydin allegedly was having sexual relationships with 2 PKK members

before the detention happened. Further, her application was challenged for being unable to exhaust

all of her domestic remedies.

ISSUE:

Whether application is admissible despite non exhaustion of domestic remedies?

Whether the Government violated Art. 3 of the Convention?

HELD:

Yes. The commission states that the government is already estopped from questioning the

admissibility of the complaint as the government was already given ample time to challenge the

admissibility of the complaint but was unable to do so.

Yes. The commission, on the basis of the appropriate evidentiary requirement, reached its

conclusions that Aydin was tortured and raped beyond reasonable doubt. Although there might

have been some inconsistencies in her testimonies, it was still found by the court through the

investigations made by the commission that there was a high degree of consistency between the

accounts given by the victims and hence they concluded that it is unlikely that the allegations were

fabricated. Further, the government was not able to adduce any evidence to contradict the

conclusions. Also, the medical evidence cannot be taken to rebut the fact that she was raped while

in custody.

The court further mentions that torture is a form of human treatment causing a very serious and

cruel suffering. Rape is considered to be an especially grave and abhorrent form of ill treatment and

leaves deep psychological scars on the victim. As such, the court is satisfied that the acts inflicted on

the applicant amounted to torture in violation of Art. 3 of the Convention.

IRELAND V UK

> Ireland v UK lodged with the EU Commission of Human Rights

> Under Article 24 of the Convention for the Protection of Human Rights and Fundamental

Freedoms

The root of this case is the tragic and lasting crisis in Northern Ireland. In order to combat what the

respondent Government describe as "the longest and most violent terrorist campaign witnessed in

either part of the island of Ireland", the authorities in Northern Ireland exercised from August 1971

until December 1975 a series of extrajudicial powers of arrest, detention and internment. The

proceedings in this case concern the scope and the operation in practice of those measures as well

as the alleged ill-treatment of persons thereby deprived of their liberty.

> Up to 1975, the figures are as follows: over 1,100 people killed, 11,500 injured and more than

£140m destroyed

Background

- Before 1922, whole island of Ireland was part of the UK. After a treaty in 1921, legislation

was passed endorsing the setup of its self-governance, composed initially of Ireland’s 32

counties.

- In 1937, a new Constitution was formed proclaiming independence and sovereignty

- After WW2, it left the Commonwealth and declared itself as a republic

- Northern Ireland was divided into 2 communities

o Loyalist (Protestant) want to remain within UK

o Nationalist (Catholic) independence

- Irish Republican Army (IRA) = a clandestine organization with quasi-military dispositions

part of CATHOLIC

The Catholics regarded themselves as discriminated

The European Commission of Human Rights itself came to the conclusion that there certainly was an

element of inherent bias in the whole political system in Northern Ireland in favour of one

community.

Timeline

1963 – first moves towards Catholic civil rights (1967 – gained momentum)

1964, 66 – incidents of Protestant Violence, Ulster Volunteer Force (UVF) declared war on the IRA

1969 riots = lots of casualties, it was found necessary to call in aid units of the British Army

1970 = situation worsened

--------------------

1971 = decision to introduce internment

1. It was against the background outlined above that on 9 August 1971 the Northern Ireland

Government brought into operation extrajudicial measures of detention and internment of

suspected terrorists. From 9 August 1971 until 7 November 1972, when certain of the Special

Powers Regulations were replaced, the authorities in Northern Ireland in fact exercised four

such extrajudicial powers: (i) arrest for interrogation purposes during 48 hours (under

Regulation 10); (ii) arrest and remand in custody (under Regulation 11 (1)); (iii) detention of an

arrested person (under Regulation 11 (2)); and (iv) internment (under Regulation 12 (1)). An

account of the operation of these powers and the procedures there under is given below at

paragraphs 81 to 84.

Because of the level it had reached, IRA terrorism was considered the real menace to law and order.

In the weeks preceding Internment, the police in consultation with the army were PREPARING LISTS

OF PERSONS to be arrested

OPERATION DEMETRIUS

- Some 350 persons were arrested

- They claim it’s not a selective maneuver but a sweeping up directed against the IRA organization as

a whole.

- Because of the operation’s scale, some persons were arrested or even detained on the basis of

inadequate or inaccurate information.

Legislation

Special Powers Act (1922)

Declared illegal certain orgs such as IRA

Regulations were introduced, granting powers of ENTRY and SEARCH

further Regulations were made dealing with internment, curfew, special trial procedures,

firearms and explosives control, and restriction on movement.

Emergency Provisions Act of 1973 came into force, repealing the Special Powers Act.

Briefly, the extrajudicial powers introduced under the Emergency Provisions Act were:

o (i) arrest and detention for 72 hours;

o (ii) interim custody for 28 days; and

o (iii) detention (see paragraphs 88 and 89 below for a fuller explanation).

These emergency powers remained in force for a period of one year unless

renewed.

In accordance with Article 15 para. 3 (art. 15-3) of the Convention, the United Kingdom

Government sent to the Secretary-General of the Council of Europe, both before and after the

original application to the Commission, six notices of derogation in respect of these powers.

EXTRAJUDICIAL DEPRIVATION OF LIBERTY FALLING INTO THE 3 basic categories (under Reg 10)

any individual could be arrested without warrant and detained for the purpose of

interrogation;

the arrest could be authorised by any officer of the RUC;

the officer had to be of the opinion that the arrest should be realised "for the preservation

of the peace and maintenance of order";

the detention could not exceed forty-eight hours.

Interrogation in depth / disorientation / sensory deprivation

(a) wall-standing: forcing the detainees to remain for periods of some hours in a "stress

position", described by those who underwent it as being "spread eagled against the wall,

with their fingers put high above the head against the wall, the legs spread apart and the

feet back, causing them to stand on their toes with the weight of the body mainly on the

fingers";

(b) hooding: putting a black or navy coloured bag over the detainees' heads and, at least

initially, keeping it there all the time except during interrogation;

(c) subjection to noise: pending their interrogations, holding the detainees in a room

where there was a continuous loud and hissing noise;

(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their

stay at the centre and pending interrogations.

ISSUES

to ensure the observance in Northern Ireland of the engagements undertaken by the respondent

Government as a High Contracting Party to the Convention and in particular of the engagements

specifically set out by the applicant Government in the pleadings filed and the submissions made on

their behalf and described in the evidence adduced before the Commission in the hearings before

them".

"To this end", the Court is invited "to consider the report of the Commission and to confirm the

opinion of the Commission that breaches of the Convention have occurred and also to consider the

claims of the applicant Government with regard to other alleged breaches and to make a finding of

breach of the Convention where the Court is satisfied that a breach has occurred".

Questions concerning the merits

The Court has to decide whether the United Kingdom went beyond the "extent strictly required".

(i) On the necessity for derogation from paragraph 1 of Article 5 (art. 5-1) by

extrajudicial deprivation of liberty

The Court finds proprio motu, in the light of its Lawless judgment of 1 July 1961 (Series A no. 3, pp.

61-62, para. 47), that the British notices of derogation dated 20 August 1971, 23 January 1973 and

16 August 1973 (see paragraphs 80, 85 and 88 above) fulfilled the requirements of Article 15 para. 3

(art. 15-3).

Conclusion

The Court has accordingly come to the conclusion that, since the requirements of Article 15 (art. 15)

were met, the derogations from Article 5 (art. 5) were not, in the circumstances of the case, in

breach of the Convention.

To sump up, the aim pursued until 5 February 1973 – the elimination of the most formidable

organisation first of all – could be regarded as legitimate and the means employed do not appear

disproportionate.

LK V. NETHERLANDS

Submitted by: L.K. */ [represented by counsel]

State party: The Netherlands

The Committee on the Elimination of Racial Discrimination

PETITIONER:

LK is a disabled Moroccan citizen, residing in Utrecht, the Netherlands, and claims to be a

victim of violations by the Netherlands in violation of the International Convention on the

Elimination of All Forms of Racial Discrimination.

RECOMMENDATION BY COMMITTEE:

- The State failed to comply with the convention, with regard to elimination on discrimination.

The Committee cannot accept any claim that the enactment of law making racial discrimination

a criminal act in itself represents full compliance with the obligations under the Convention.

Also, LK was not given the effective protection and remedies under the convention.

FACTS:

- LK, visited a house for which a lease had been offered to him and his family. When they

arrived, people had gathered outside the house and shouted: "No more foreigners". .

- The protestors said that no more than 5 per cent of the street's inhabitants should be

foreigners. (Thus a petition was made by the inhabitants)

- According to Netherlands, during the second visit, a group of local residents protested against

LK. A signed petitioned was made, a total of 28 local residents, it bore the inscription "Not

accepted because of poverty? Another house for the family please?", and was forwarded to

the Housing Department official.

- The author filed a complaint against those who signed the petition with the municipal police of

Utrecht, on the ground that he had been THE VICTIM OF RACIAL DISCRIMINATION under

article 137 of the Criminal Code

- The prosecutor at the District Court of Utrecht informed LK that the complaint had not been

registered as a criminal case with his office, because it was not certain that a criminal offence

had taken place. Thus, the counsel requested the Court of Appeal of Amsterdam to order the

prosecution of the "group of residents of the Nicholas Ruychaverstraat in Utrecht" for racial

discrimination, pursuant to article 12 of the Code of Criminal Procedure.

- CA DISMISSED THE COMPLAINT

o It held inter alia that the petition was not a document of deliberately insulting

nature, nor a document that was inciting to racial discrimination within the meaning

of article 137, literae (c) and (e), of the Criminal Code.

o the heading to the petition - which, taking into account statements made during the

hearing and to the police, should be interpreted as meaning "Not accepted because

of a fight? Another house for the family please?" - could not be considered to be

insulting or as an incitement to racial discrimination, however regrettable and

undesirable it might have been.

- The appeal to the SC was dismissed

- However, the Minister asked the Chief Public Prosecutor in Utrecht recommended to raise the

problems encountered by the author in tripartite consultations between the Chief Public

Prosecutor, the Mayor and the Chief of the Municipal Police of Utrecht.

COMPLAINT:

- The author submits that the remarks and statements of the residents of the street constitute

acts of racial discrimination

- The Dutch Criminal Code prohibit public insults of a group of people solely on the basis of their

race, public incitement of hatred against people on account of their race, and the publication

of documents containing racial insults of a group of people.

- The author contends that the judicial authorities and the public prosecutor did not properly

examine all the relevant facts of the case or at least did not formulate a motivated decision in

respect of his complaint

- Counsel submits that although the freedom to prosecute or not to prosecute, known as the

expediency principle, is not set aside by the Convention, the State party, by ratifying the

Convention, accepted to treat instances of racial discrimination with particular attention, inter

alia, by ensuring the speedy disposal of such cases by domestic judicial instances.

THE STATE PARTY'S INFORMATION AND OBSERVATIONS AND COUNSEL'S COMMENTS:

- The State party observes that the Dutch legislation meets the requirements of the

Convention, by making racial discrimination a criminal offence under the Criminal Code.

- In the Government's opinion, there can be no question of a violation of the Convention

because it had not been sufficiently established that any criminal offence had been committed

or who had been involved.

- The State party's opinion, the fact that racial discrimination has been criminalized under the

Criminal Code is sufficient to establish compliance with the obligation of the Convention,

- Finally, the State party denies that it violated the convention. The author's right to freely

choose his place of residence was never impaired, either before or after the events of August

1989.

ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE:

- The Committee finds that the remarks and threats made to L.K. constituted incitement to

racial discrimination and to acts of violence against persons of another colour or ethnic

origin, contrary to article 4 (a) of the International Convention on the Elimination of All Forms

of Racial Discrimination, and that the investigation into these incidents by the police and

prosecution authorities was incomplete.

- The Committee cannot accept any claim that the enactment of law making racial discrimination

a criminal act in itself represents full compliance with the obligations of States parties under

the Convention.

- The Committee reaffirms its view as stated in its Opinion on Communication (Yilmaz-Dogan v.

The Netherlands) that "the freedom to prosecute criminal offenses - commonly known as the

expediency principle - is governed by considerations of public policy and notes that the

onvention cannot be interpreted as challenging the raison d tre of that principle

Notwithstanding, it should be applied in each case of alleged racial discrimination in the light of

the guarantees laid down in the Convention".

- When threats of racial violence are made, and especially when they are made in public and by

a group, it is incumbent upon the State to investigate with due diligence and expedition. In the

instant case, the State party failed to do this.

- Thus, the inadequate response to the incidents, the police and judicial proceedings in this case

did not afford the applicant effective protection and remedies within the meaning of article 6

of the Convention.

- The Committee recommends that the State party review its policy and procedures concerning

the decision to prosecute in cases of alleged racial discrimination, in the light of its obligations

under article 4 of the Convention.

- The Committee further recommends that the State party provide the applicant with relief

commensurate with the moral damage he has suffered.

- The Committee invites the State party, in its next periodic report to inform the Committee

about any action it has taken with respect to the recommendations

JERSILD VS. DENMARK

Facts:

Mr. Jens Olaf Jersild, a Danish national, is a journalist. There was a prevailing issue on xenophobia,

immigration and refugees in Denmark. In line with this, Mr. Jersild conducted and edited a radio

interview with young people of the group, “GreenJackets” The “Greenjackets” made abusive and

derogatory remarks about black people in Denmark. They called them niggers. They said they were

not human beings but animals. They said Niggers and Gorillas were the same. They said the same to

Turks, Yugoslavs, and, other foreign workers.

Following the broadcast of the interview, Mr. Jersild was charged and convicted of the offense of

aiding and abetting the dissemination of racist statements.

Mr. Jersild argued that he merely intended to provide a realistic picture of a social problem. He said

the purpose of the interview was to counter the racist attitude of the people. The City Court of

Copenhagen found Mr. Jersild guilty of aiding and abetting racial discrimination in violation of Article

266. Mr. Jersild appealed the decision. The High Court of Eastern Denmark dismissed the appeal.

Mr. Jersild filed an application to the UN Commission. He complained that there was a violation of

his right of freedom of expression under Article 10 of the Convention.

Issue:

1) Whether or not Denmark’s interference violated the right of freedom of expression or Mr Jersild

2) Whether the measures were necessary in a democratic society

Held:

1) Yes, the interference by Denmark violated Mr Jersild’s right of freedom of expression

Art. 10.

1. Everyone has a right to freedom of expression. This right shall include freedom to hold

opinions and to receive and impart information and ideas without interference by public

authority and regardless of frontiers.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may

be subject to such formalities, conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society.

Denmark’s interference was prescribed by law and pursued a legitimate aim. Firstly, the interference

was “prescribed by law” since the applicant’s conviction was based on Art 266 and Art 23 of the

Penal Code. The Government pointed out that this provision was enacted in order to comply with

the UN Convention. Secondly, it pursued a legitimate aim, namely the “protection of the

reputation of the right of others”

“Freedom of expression” constitutes one of the essential foundations of democracy and is

applicable to information which shocks or offends. The press plays an important role in a democracy;

its duty is to impart information and ideas. It has a vital role of public watchdog.

The Court noted the applicant did not make the statements himself but assisted in their

dissemination in his capacity as a journalist for a news programme The Applicant’s conduct during

the interview clearly dissociated him from the persons interviewed.

In deciding the case, the court also took account the manner in which the feature was presented

and prepared. There was an introduction, which identified the purpose of the interview: to identify

racist individuals and portray their mentality and social background. The purpose of the interview

was to expose and analyse the views of the group of youths, seen objectively, its purpose could not

have been taken to propagate racist views. The programme was broadcast as part of a serious news

programme intended for a well-informed audience.

Therefore, the ourt found that there was a violation of the journalist’s right to free expression

under Article 10.

Judge Ryssdal, etc. expressed a dissent stating that it was absolutely necessary to add at least a clear

statement of disapproval. Judges Russo, etc. filed another dissent stating that the journalist

responsible for the broadcast in question made no real attempt to challenge the points of view he

was presenting, which was necessary if their impact was to be counterbalanced.

2) The means employed were disproportionate to the aim of protecting the reputation or

rights of others. The measures gave rise to a breach of Article 10.

IRELAND V UK

> Ireland v UK lodged with the EU Commission of Human Rights

> Under Article 24 of the Convention for the Protection of Human Rights and Fundamental

Freedoms

The root of this case is the tragic and lasting crisis in Northern Ireland. In order to combat what the

respondent Government describe as "the longest and most violent terrorist campaign witnessed in

either part of the island of Ireland", the authorities in Northern Ireland exercised from August 1971

until December 1975 a series of extrajudicial powers of arrest, detention and internment. The

proceedings in this case concern the scope and the operation in practice of those measures as well

as the alleged ill-treatment of persons thereby deprived of their liberty.

> Up to 1975, the figures are as follows: over 1,100 people killed, 11,500 injured and more than

£140m destroyed

Background

- Before 1922, whole island of Ireland was part of the UK. After a treaty in 1921, legislation

was passed endorsing the setup of its self-governance, composed initially of Ireland’s 32

counties.

- In 1937, a new Constitution was formed proclaiming independence and sovereignty

- After WW2, it left the Commonwealth and declared itself as a republic

- Northern Ireland was divided into 2 communities

o Loyalist (Protestant) want to remain within UK

o Nationalist (Catholic) independence

- Irish Republican Army (IRA) = a clandestine organization with quasi-military dispositions

part of CATHOLIC

The Catholics regarded themselves as discriminated

The European Commission of Human Rights itself came to the conclusion that there certainly was an

element of inherent bias in the whole political system in Northern Ireland in favour of one

community.

Timeline

1963 – first moves towards Catholic civil rights (1967 – gained momentum)

1964, 66 – incidents of Protestant Violence, Ulster Volunteer Force (UVF) declared war on the IRA

1969 riots = lots of casualties, it was found necessary to call in aid units of the British Army

1970 = situation worsened

--------------------

1971 = decision to introduce internment

2. It was against the background outlined above that on 9 August 1971 the Northern Ireland

Government brought into operation extrajudicial measures of detention and internment of

suspected terrorists. From 9 August 1971 until 7 November 1972, when certain of the Special

Powers Regulations were replaced, the authorities in Northern Ireland in fact exercised four

such extrajudicial powers: (i) arrest for interrogation purposes during 48 hours (under

Regulation 10); (ii) arrest and remand in custody (under Regulation 11 (1)); (iii) detention of an

arrested person (under Regulation 11 (2)); and (iv) internment (under Regulation 12 (1)). An

account of the operation of these powers and the procedures there under is given below at

paragraphs 81 to 84.

Because of the level it had reached, IRA terrorism was considered the real menace to law and order.

In the weeks preceding Internment, the police in consultation with the army were PREPARING LISTS

OF PERSONS to be arrested

OPERATION DEMETRIUS

- Some 350 persons were arrested

- They claim it’s not a selective maneuver but a sweeping up directed against the IRA organization as

a whole.

- Because of the operation’s scale, some persons were arrested or even detained on the basis of

inadequate or inaccurate information.

Legislation

Special Powers Act (1922)

Declared illegal certain orgs such as IRA

Regulations were introduced, granting powers of ENTRY and SEARCH

further Regulations were made dealing with internment, curfew, special trial procedures,

firearms and explosives control, and restriction on movement.

Emergency Provisions Act of 1973 came into force, repealing the Special Powers Act.

Briefly, the extrajudicial powers introduced under the Emergency Provisions Act were:

o (i) arrest and detention for 72 hours;

o (ii) interim custody for 28 days; and

o (iii) detention (see paragraphs 88 and 89 below for a fuller explanation).

These emergency powers remained in force for a period of one year unless

renewed.

In accordance with Article 15 para. 3 (art. 15-3) of the Convention, the United Kingdom

Government sent to the Secretary-General of the Council of Europe, both before and after the

original application to the Commission, six notices of derogation in respect of these powers.

EXTRAJUDICIAL DEPRIVATION OF LIBERTY FALLING INTO THE 3 basic categories (under Reg 10)

any individual could be arrested without warrant and detained for the purpose of

interrogation;

the arrest could be authorised by any officer of the RUC;

the officer had to be of the opinion that the arrest should be realised "for the preservation

of the peace and maintenance of order";

the detention could not exceed forty-eight hours.

Interrogation in depth / disorientation / sensory deprivation

(a) wall-standing: forcing the detainees to remain for periods of some hours in a "stress

position", described by those who underwent it as being "spread eagled against the wall,

with their fingers put high above the head against the wall, the legs spread apart and the

feet back, causing them to stand on their toes with the weight of the body mainly on the

fingers";

(b) hooding: putting a black or navy coloured bag over the detainees' heads and, at least

initially, keeping it there all the time except during interrogation;

(c) subjection to noise: pending their interrogations, holding the detainees in a room

where there was a continuous loud and hissing noise;

(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their

stay at the centre and pending interrogations.

ISSUES

to ensure the observance in Northern Ireland of the engagements undertaken by the respondent

Government as a High Contracting Party to the Convention and in particular of the engagements

specifically set out by the applicant Government in the pleadings filed and the submissions made on

their behalf and described in the evidence adduced before the Commission in the hearings before

them".

"To this end", the Court is invited "to consider the report of the Commission and to confirm the

opinion of the Commission that breaches of the Convention have occurred and also to consider the

claims of the applicant Government with regard to other alleged breaches and to make a finding of

breach of the Convention where the Court is satisfied that a breach has occurred".

Questions concerning the merits

The Court has to decide whether the United Kingdom went beyond the "extent strictly required".

(i) On the necessity for derogation from paragraph 1 of Article 5 (art. 5-1) by

extrajudicial deprivation of liberty

The Court finds proprio motu, in the light of its Lawless judgment of 1 July 1961 (Series A no. 3, pp.

61-62, para. 47), that the British notices of derogation dated 20 August 1971, 23 January 1973 and

16 August 1973 (see paragraphs 80, 85 and 88 above) fulfilled the requirements of Article 15 para. 3

(art. 15-3).

Conclusion

The Court has accordingly come to the conclusion that, since the requirements of Article 15 (art. 15)

were met, the derogations from Article 5 (art. 5) were not, in the circumstances of the case, in

breach of the Convention.

To sump up, the aim pursued until 5 February 1973 – the elimination of the most formidable

organisation first of all – could be regarded as legitimate and the means employed do not appear

disproportionate.

JEWISH COMMUNITY VS. NORWAY

FACTS:

‘Bootboys’ organized and participated in a march, headed by Mr Terje Sjolie , in commemoration of

the Nazi leader Rudolf Hess. Authors claimed that the anti-Jew speech, led to increased Nazi activity

and discrimination against the Jews in Norway. Sjolie served a term of imprisonment for attempted

murder in relation to an incident which he shot another gang member. Charged with violation of

section 135a of the Norwegian Penal Code( prohibits a person from threatening, insulting, or

subjecting to hatred, persecution or contempt, any person or group of persons because of their

creed, race, color or national or ethnic origin). Acquitted by Halden City Court. Borgarting Court of

Appeal convicted him of violation of section 135a.

SC: overturned conviction; penalizing approval of Nazism would involve prohibiting Nazi

organizations, which it considered would go too far and be incompatible with the right to freedom

of speech; speech was simply Nazi rhetoric, and did nothing more than express support for National

Socialist ideology. It did not amount to approval of the persecution and mass extermination of the

Jews; no actual threats were made, nor any instructions to carry out any particular actions. Article 4

of the Convention is not to entail an obligation to prohibit the dissemination of ideas of racial

superiority, contrary to the ommittee’s position as set out in General Recommendation 15

Authors claim to be victims of violations by the State party of articles 4 and 6 of the Convention

saying that they were not afforded protection against the dissemination of ideas of racial

discrimination and hatred, as well as incitement to such acts, as required by the Convention

State party: Art.135a of the Norwegian Penal Code must be interpreted with due regard to the right

to freedom of expression State party’s obligation to criminalize certain expressions and statements

must be balanced against right to freedom of expression. The State must enjoy a margin of

appreciation in balancing rights at the national level, and this margin has not been overstepped.

Authors failed to establish how Sjolie’s remarks adversely affected their enjoyment of any

substantive rights protected under article 5 of the Convention. Norway is proposing significant

enhancements of the protection offered by s135a, and a White Paper has been presented to

Parliament on possible

amendments to s100 of the Norwegian Constitution. It is too early to inform about the outcome of

the legislative process. It will elaborate on the issue on the next periodic report

ISSUES:

1) whether Sjolie’s statements, properly characterized, fall within any of the categories of impugned

speech set out in article 4, and if so, 2) whether those statements are protected by the ‘due regard’

provision as it relates to freedom of speech.

HELD:

Committee on the Elimination of Racial Discrimination saw violations of art. 4 and 6 of the

Convention. Norway to take measures to ensure that statements such as those made by Mr. Sjolie in

the course of his speech are not protected by the right to freedom of speech. Within 6 mos, State is

to submit information about the measures taken in the light of the Committee's Opinion.

1) Mr Sjolie stated that his ‘people and country are being plundered and destroyed by Jews, who

suck our country empty of wealth and replace it with immoral and un-Norwegian thoughts’ He then

refers not only to Rudolf Hess, in whose commemoration the speech was made, but also to Hitler

and their principles; he states that his group will ‘follow in their footsteps and fight for what (we)

believe in’ The ommittee considers these statements to contain ideas based on racial superiority

or hatred; the deference to Hitler and his principles and ‘footsteps’ must in the ommittee’s view be

taken as incitement at least to racial discrimination, if not to violence.

2) whether these statements are protected by the ‘due regard’ clause contained in article 4: Sjolie’s

statements, given that they were of exceptionally/manifestly offensive character, are not

protected by the due regard clause, and that accordingly his acquittal by the SC of Norway gave

rise to a violation of art 4, and consequently art 6, of the Convention. The principle of freedom of

speech has been afforded a lower level of protection in cases of racist and hate speech dealt with by

other international bodies, and that the ommittee’s own General recommendation No 15 clearly

states that the prohibition of all ideas based upon racial superiority or hatred is compatible with the

right to freedom of opinion and expression The ‘due regard’ clause relates generally to all principles

embodied in the Universal Declaration of Human Rights, not only freedom of speech.

On State party’s submission that the authors have failed to establish how Sjolie’s remarks adversely

affected their enjoyment of any substantive rights protected under art 5 of the Convention: The

Committee has the competence to receive and consider communications under article 14 and is not

limited to complaints alleging a violation of one or more of the rights contained in article 5. Art 14

states that the Committee may receive complaints relating to ‘any of the rights set forth in this

onvention’ Relevant rights are to be found in more than just one provision of the onvention

Further, the fact that article 4 is couched in terms of States parties’ obligations, rather than inherent

rights of individuals, does not imply that they are matters to be left to the internal jurisdiction of

States parties, and as such immune from review under article 14. States parties pledge to assure to

all individuals within their jurisdiction effective protection and a right of recourse against any acts of

racial discrimination which violate their ‘human rights’ under the onvention

OLGA TELLIS V. BMC

FACTS:

The petitioners are informal settlers who live on pavements, slums and near highways along with 2

journalists. The purpose of the petition is to challenge the decision of the respondents to demolish

the pavement dwellings and slum hutments as it amounts to depriving them to their right to

livelihood which violates their right to life and that the procedure prescribed for the removal if their

homes was arbitrary and unreasonable as it does not give prior notice before the removal.

The respondents contends that the petitioners did not claim any fundamental right to put up their

settlements and that they agreed that they will not obstruct with the demolition after Oct. 15 hence

they cannot contend the said decision. Further, no person has the legal right to construct any

structure on a foot path or any place which the public has right of way. Further, the decision made

by the respondents involves public interest and is not against the constitution.

HELD:

The Court mentions that the right to life is wide and far reaching. An equally important facet of that

right is the right to livelihood because no person can live without the means of living. Depriving a

person of such would make life impossible to live. It also mentions that any person deprived of his

right to livelihood except according to just and fair procedure established by law, can challenge the

deprivation as offending the right to life.

The Court however states that the Constitution does not put an absolute ban on the deprivation of

life or liberty. It is well settled that the rights of a person is not absolute may be subject to

restrictions as long as it is fair, just and reasonable. In the instant case, the procedure of the BMC Act

for the removal of encroachments on the footpaths over which the public has the right of passage

cannot be regarded as unreasonable, unfair or unjust in the circumstances of the case since the

Government has assured that the resettlement sites that were to be provided are not too far from

the urban areas and that the slums which have been in existence for a long time and have been

improved and developed shall not be removed unless the land would be required for public

purposes and will likewise be provided with reasonable resettlement sites..

In order to minimize the hardship involved in any eviction, the Court directs that the slums will not

be removed until one month after the end of the current monsoon season which is until October 31.

If any slum or pavement dweller is required to be removed before that date, parties may apply to

this court.

REPORTS:

2007 PHILIPPINE MISSION REPORT

Report of Special Rapporteur on summary executions by Philip Alston

Over the past 6 years (from 2011), there have been executions of leftist activists, including

human rights defenders, trade unionists, etc.

Tons of human rights abuses, multiple armed conflicts

CPP seeks to revolutionize the Philippines’ semifeudal society – armed group, NPA and

civil society group NDF

Counterinsurgency Strategy: A Nationwide Focus on CPP “Front Groups” in Civil Society

Senior Government officials in and out of the military believe that many civil society

organizations are fronts for the CPP and that the CPP controls these groups to

instrumentalize popular grievances in the service of revolutionary struggle, forge

anti-Government alliances, and recruit new party members.

Membership in the CPP is legal, and has been since 1992 when Congress repealed

the Anti-Subversion Act.

Similarly, the party list system — whereby some members of the House of Representatives

are elected nationwide rather than from a particular district — was established by

Congress in 1995 for the purpose of encouraging leftist groups to enter the democratic

political system. Characterizing such elected Congressional representatives and much

of civil society as “enemies” is thus completely inappropriate. Unsurprisingly, it has

encouraged abuses.

Case Studies

Cagayan

AFP sends a detachment unit to a barangay

They arrange meetings and vilify communist groups

Soldiers collect names and occupations of residents, get to know power structure (some

conduct house to house census)

Attempts made to get the persons identified to surrender

CAFGU armed informants

Nueva Ecija

Leaders of leftist orgs systematically hunted down

Those who know their whereabouts interrogated and tortured

Vilification of the leftist system

They first integrate themselves in the community, play sports, hear grievances, undertake

small development projects

Know Your Enemies seminar

Barangay Defense System

“Purge Theory” of a Military in Denial

- Military notes that CPP/NPA/NDF publicly claims responsibility, conducts purges of

members suspected of being informants, but only 44 are supported; 1335 total

unaccounted for

Killings by the NPA

- They consider military “intelligence personnel:” as legitimate targets for attack

- Second, the CPP/NPA/NDF’s system of “people’s courts” is either deeply flawed or simply a

sham. The question whether the Comprehensive Agreement on Respect for Human Rights

and International Humanitarian Law (CARHRIHL) can be interpreted to affirm the

CPP/NPA/NDF’s contention that it has a right to constitute courts and conduct trials is a

matter of controversy.43 However, insofar as the CPP/NPA/NDF does conduct trials,

international humanitarian law (IHL) unambiguously requires it to ensure respect for due

process rights.

- “Blood debts”, “Accountabilities to the people”, = issuing such threats under the guise of

revolutionary justice is utterly inappropriate and must be repudiated

Killings related to the conflicts in Western Mindanao

- Violence was indiscriminate

- Civilians are killed but seldom by accident

- In contrast, on Jolo, persons are abducted or arrested, and sometimes extrajudicially

executed, for little or no apparent reason

Killings related to Agrarian Reform

- For their part, local Government officials are often more interested in protecting the

holdings of local elites than the lives and land rights of peasants, and PNP protection for

peasants attempting to take possession of land that has been awarded to them has often

been strikingly inadequate in practice.

Killings related to Agrarian Reform

- the killings of journalists appear to have different causes than the killings of leftist

activists.

- The views of journalists and organizations for the protection of journalists with whom I

spoke were that most of these killings had local roots.

- Some killings had been perpetrated to prevent journalists from exposing information

related to the crimes and corruption of powerful individuals.

- Sometimes they also earn money through so-called “AC/DC” journalism — “attack, collect;

defend, collect”

Davao Vigilantism or Death Squad

- One fact points very strongly to the officially-sanctioned character of these killings: No one

involved covers his face

- The human cost is very high. Since 1998, when civil society organizations began keeping

careful records, over 500 people have been killed by the death squad.56 Up until 2006,

these victims were generally shot; since then, stabbings have become more common.

CRIMINAL JUSTICE SYSTEM

There is impunity for extrajudicial executions. No one has been convicted in the cases involving

leftist activists, and only six cases involving journalists have resulted in convictions. The

criminal justice system’s failure to obtain convictions and deter future killings should be

understood in light of the system’s overall structure.

The Inter-Agency Legal Action Group (IALAG) distorts the criminal justice system’s

priorities

IALAG is an executive rather than advisory body and, while it includes representatives of

various criminal justice, intelligence, and military organs, institutional power and legal

authority over its operations is concentrated in the Office of the National Security Adviser.69 At

the national level, IALAG meets at least once every other week, discusses the evidence in

particular cases and debates whether it is sufficient to file a criminal complaint.

There are also regional and provincial IALAG bodies with a similar structure and role. It has

been due to the efforts of IALAG that charges have been brought against a number of leftist

lawmakers and persons who had been given immunity guarantees to facilitate peace

negotiations with the NDF.

The central purpose of IALAG is to prosecute and punish members of the CPP and its

purported front groups whenever there is any legal basis for doing so.

I received no evidence that it was designed or generally functions to plan extrajudicial

executions. However, IALAG’s proactive legal strategy requires drawing up lists of individuals

who are considered enemies of the state but many of whom will not be reachable by legal

process. The temptation to execute such individuals is clear

The police are reluctant to investigate the military

Poor cooperation between police and prosecutors impedes the effective gathering of

evidence

The witness protection program is inadequate

Limited forensic resources lead to over-reliance on witness testimony

The Ombudsman lacks independence

Role of the Courts

When most cases stall at the investigation or prosecution stage, it is difficult to evaluate the

effectiveness of the judiciary. Two issues specific to the judiciary were, however, raised by my

interlocutors. First, trials are routinely delayed and are generally not held on consecutive days,

increasing the opportunities for witness intimidation. If fully implemented, the Supreme Court’s

decision to establish “special courts” for “cases involving killings of political activists and

members of the media” should remedy this problem for those cases. Second, witnesses often

relocate to avoid retaliation, but judges seldom grant a change of venue on that basis. The

judiciary should ensure that docket management and venue decisions facilitate witness

participation and protection.

Congress and the Executive

The executive branch has stymied the legislature’s efforts to oversee the execution of laws.

The legislature has also failed to exercise its constitutional authority to block the promotion of

military officers implicated in human rights abuse.

COMMISSION ON HUMAN RIGHTS

The Philippines Commission on Human Rights (CHRP) stands out as an oversight mechanism

that has safeguarded its independence and mandate. However, more resources must be devoted

to ensure the effectiveness of its investigations.

READ RECOMMENDATIONS!

PROMOTION AND PROTECTION OF ALL HUMAN RIGHTS, CIVIL, POLITICAL, ECONOMIC, SOCIAL

AND CULTURAL RIGHTS, INCLUDING THE RIGHT TO DEVELOPMENT

Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, PhilipAlston

INTRODUCTION

- The Special Rapporteur reported that extrajudicial executions were widespread, and included

government sanctioned killings of members of civil society groups, and vigilante killings of

suspected criminals by a death squad in Davao. He also reported on killings of those found

guilty by the “people’s courts” of the New People’s Army (NPA), an armed group controlled by

the Communist Party of the Philippines (CPP), which also controls the National Democratic

Front (NDF) civil society organization.

- The Special Rapporteur’s recommendations identified specific measures required to improve

the situation in the Philippines with respect to these problems. However, many of these were

challenged by the Government of the Philippines

- Since 2007, the Government has successfully prosecuted just one perpetrator of an

extrajudicial execution. And not a single member of the armed forces has been convicted for

killing leftist activists.

- In its own defence the Government says it needs to take its time and not “force quick

convictions simply for the sake of announcing achievements” However, the Government

simultaneously notes its ability to progress quickly and effectively on other prosecutions, citing

cases involving the killings of journalists.

THE KILLINGS OF LEFTIST ACTIVISTS

A. The need for institutionalized reform

- The AFP has not changed its counterinsurgency techniques in such a way as to eliminate the

likelihood that leftist activists will be killed.

- Forced disappearances and illegal detentions remain all too common.

- The Government should be encouraged to institutionalize any positive change in

counterinsurgency policies and to increase transparency by making such changes public.

- Greater transparency is also urgently needed in relation to the “orders of battle” and other lists

or databases maintained by the military establishment in relation to the targeting of leftist

groups.

- Measures such as the creation of an AFP Human Rights Office in 2007, set up to improve

internal mechanisms and promote human rights, are positive initial steps that need to be

buttressed by further action in order to consolidate reforms Regrettably, the AFP’s Human

Rights Office has yet to successfully investigate accusations of extrajudicial killings perpetrated

by members of the military.

- The Special Rapporteur has not received evidence of any institutional reforms by the

Government designed to prevent the targeting and execution of civil society activists.

B. Command responsibility

- General Yano’s predecessor, General Esperon, indicated that the principle of command

responsibility had been integrated into AFP policy. However, the details of any such policy

statement have not been made public.

- It is thus impossible to conclude that the principles of command responsibility have yet been

appropriately institutionalized and enshrined in the law.

IV. DEATH SQUAD KILLINGS

A. Davao City

- Death squad killings in Davao City. indicates that, in 2008, such killings were almost a daily

occurrence in Davao City, jumping from a reported 116 in 2007 to 269 in 2008.

- The killings have clear patterns - similarly described perpetrators, victims and methods - and

are rarely the subject of successful police investigations.

- The practice of barangay officials submitting names of suspected criminals for inclusion on law

enforcement watch lists has yet to be abolished.

- Persons included on the list are first warned to stop suspected activities or to leave Davao City,

and if they do not, then they are abducted or killed on sight. According to credible information

provided to the Special Rapporteur, while barangay officials may deny the existence of such

lists, this practice is an “open secret” in the local area, and such lists are maintained to this day

- The Special Rapporteur is not aware of a single conviction for a death squad killing in Davao. As

a result, death squad members operate with complete impunity. Impunity also means that

although killings take place in broad daylight, witnesses are not prepared to testify against the

perpetrators.

- The Mayor of Davao City has done nothing to prevent these killings, and his public comments

suggest that he is, in fact, supportive Mayor Duterte, “Here in Davao, you can’t go out alive

You can go out, but inside a coffin. Is that what you call extra-judicial killing? Then I will just

bring a drug lord to a judge and kill him there, that will no longer be extra-judicial ”

- The most encouraging development was the launch of independent investigations by the CHRP

in March 2009.

B. Indications of the spread of death squads

- Impunity has also encouraged death squad killings to sprout up in other cities beyond Davao.

- Since 2007, numerous patterns of death squad killings have been reported by media and civil

society organizations in other cities in the region.

V. ACCOUNTABILITY FOR PERPETRATORS

- According to the Government, the Philippines has seen only one conviction in the period

2007-2008 in cases involving extrajudicial executions.

- Through the efforts of Task Force 211, the inter-agency task force against political violence

created by the President in November 2007, there has also been progress in investigations and

charges filed in at least four recent cases involving killings of members of the media.

- These efforts do not, however, provide evidence of a good faith effort on behalf of the

Government to address the myriad of extrajudicial killings by the military.

- To date, there has still not been a single conviction involving those who were active military

personnel at the time of the killing.

VI. KILLINGS BY THE COMMUNIST PARTY OF THE PHILIPPINES/NEW PEOPLE’S ARMY/NATIONAL

DEMOCRATIC FRONT

- The NPA continues its armed struggle against the Government. But the number of killings by

the CPP/NPA/NDF is difficult to assess.

- The Government has regularly provided the Special Rapporteur with lists of individuals, mostly

civilians, allegedly killed by the CPP/NPA/NDF. However, the lists are rarely accompanied by

substantiating documentation, and it is difficult to confirm their reliability.

- Nevertheless, there is no evidence to suggest that the CPP/NPA/NDF has ceased carrying out

killings nor that it has stopped using people’s courts that violate human rights and

humanitarian law standards. And there are continuing reports in the media of the

PP/NPA/NDF’s use of lethal force on civilians

- There is also no evidence that the CPP/NPA/NDF has repudiated any statements concerning

persons owing “blood debts” or having “accountabilities to the people”

- There has been no progress in the peace negotiations between the Government and the

CPP/NPA/NDF.

- The GRP-NDF Joint Monitoring Committee (JMC) remains inactive and has not been convened

to meet and discuss the complaints of both sides concerning violations of human rights and

international humanitarian law to fulfil its mandate under the Comprehensive Agreement on

Respect for Human Rights and International Humanitarian Law (CARHRIHL).

- The Government has not responded positively to the PP/NPA/NDF’s proposed joint

fact-finding missions of extrajudicial killings, disappearances and violations of the rights of

children.

VII. KILLINGS IN WESTERN MINDANAO

- Peace negotiations between the Government and the Moro Islamic Liberation Front (MILF)

have stalled since open conflict has erupted between the two sides in August 2008.

- The previous mechanism in place to monitor ceasefire violations, the Malaysian led

International Monitoring Team (IMT), has since pulled out, and there are currently no

established mechanisms in place capable of independent human rights monitoring.

- Information provided to the Special Rapporteur indicates that between 400,000 and 600,000

people have been displaced by this ongoing conflict. The CHRP has from time to time visited

the areas, mostly to monitor the status of internally displaced persons, particularly children,

but lacks the necessary resources to continuously monitor the human rights situation amidst

the armed conflict.

VIII. THE INTER-AGENCY LEGAL ACTION GROUP AND THE OMBUDSMAN

- The Inter-Agency Legal Action Group (IALAG) continues to label members of civil society

organizations as suspected members of the CPP/NPA/NDF, and the Government has not taken

any steps to abolish IALAG.

- The central purpose of IALAG remains to prosecute and punish members of the CPP and its

purported front groups as enemies of the State, many of whom will not be reachable by legal

processes. The temptation to execute such individuals thus remains.

- As well, the Special Rapporteur received no information from the Government or civil society

that IALAG has ceased its encouragement of prosecutors to act as “team players” with the AFP

and PNP in counterinsurgency operations, and to de-prioritize cases involving the deaths of

leftist activists.

- no progress appears to have been made with respect to improving the office of the

Ombudsman’s ability to effectively fulfil its independent constitutional role in responding to

extrajudicial killings plausibly attributed to public officials.

IX. WITNESS PROTECTION PROGRAMME

- Failure to reform the witness protection programme is one of the most significant causes of

continued impunity in the Philippines.

- The programme is still housed within the National Prosecution Service (NPS).

- This is problematic because the impartial role prosecutors are expected to play in the early

phases of a criminal case can make them reluctant to propose witness protection. The only

movement on this recommendation is a bill currently stalled in the Senate that would remove

protection responsibilities from the Department of Justice for witnesses in legislative hearings,

where the witness could be testifying against the Government or high-ranking officials therein.

This bill would not provide improved protection for witnesses in normal court trials, and is thus

of limited applicability.

- Housing, health and education benefits provided under the witness protection programme

continue to be insufficient.

- The passage of another Senate bill that would expand the health coverage of witnesses and

free education for children of witnesses has also been delayed.

- Although the Government has acknowledged the seriousness of the problem of a lack of

witnesses in the prosecution of extrajudicial executions, it has so far failed to take the

substantive steps necessary to make the programme effective.

- The weaknesses of the programme observed in 2007 thus continue to undermine hopes for

witness cooperation in many cases involving extrajudicial killings, especially those allegedly

perpetrated by members of the Government.

X. CONGRESSIONAL OVERSIGHT

- The Government has apparently taken no steps to implement effective policies to facilitate

Congressional oversight of the AFP or the PNP.

- No action has been taken to rescind the directives, memoranda, and orders that impede such

oversight.

- If made possible, Congressional oversight could be the entry point for much needed reforms to

the AFP and PNP, as well as for more generally promoting a human rights based approach

within the security sector.

XII. SUPREME COURT INITIATIVES

- Soon after the Special Rapporteur’s visit, the hief Justice of the Supreme ourt organized a

National Consultative Summit on Extrajudicial Killings and Forced Disappearances.

- While most of the recommendations stemming from the consultative summit have been

ignored by the Government, or stalled in the executive and legislative branches, the Supreme

Court should be credited for issuing its recommendations on the Writ of Amparo and the Writ

of Habeas Data in late 2007 and early 2008.

- These writs largely addressed the weaknesses in the previous Writ of Habeas Corpus that had

frustrated the progression of many prosecutions.

- The Writ of Amparo provides a remedy against threats to life, liberty and security by an

unlawful act or omission of a public official or employee, or of a private individual or entity.

- When granted, the Writ of Amparo provides significant relief in cases involving extrajudicial

killings, as can be illustrated by the cases of Jonas Burgos and the Manalo Brothers. However,

the Writ appears to remain underutilized, and even misunderstood in some courts. As well,

there has yet to be a clear enforcement procedure established once the Writ is granted.

- Meanwhile, the Writ of Habeas Data remains largely untested to this day, in part because of

the financial burdens it imposes on those seeking to enforce the writ. In theory, the Writ of

Habeas Data would not only compel military and Government agents to release information

about victims of forced disappearances and extrajudicial killings, but would require access to

military and police files. The Supreme Court should be encouraged to further develop the

effectiveness of these measures of relief.

- The Supreme Court has yet to use its constitutional powers over the practice of law to impress

upon prosecutors their duty to uphold and protect human rights and to provide reasoned

decisions for probable cause determinations.

- The Supreme Court has since abolished these special courts, reverting to the practice of

designating all regional courts as special courts to try cases involving extrajudicial killings.

Insofar as this discourages the participation of witnesses and leads to delays in prosecutions of

cases involving extrajudicial killings, the changes should be revisited.

XIII. CONCLUSIONS

- The Government deserves credit for having enacted some reforms in partial fulfilment of the

Special Rapporteur’s recommendations, and for having sent a message to the military which

resulted in a significant decrease in the number of killings.

- However, in relation to many of the recommendations made, the Government has failed to

make sufficient substantive progress and, in some cases, has made no progress at all.

- Although the number of extrajudicial executions of members of civil society organizations

has greatly diminished, too many cases continue to be reported and far too little

accountability has been achieved for the perpetrators.

- In addition, death squad killings, far from being reduced, have skyrocketed. In the face of all

the evidence, the Government’s denial of the existence of such death squads continues to

undermine its credibility and inhibit efforts to address the problem.

- Overall, the most important shortcoming has been the Government’s failure to

institutionalize or implement the many necessary reforms that have been identified. In the

absence of such steps, the progress that has been made remains fragile and easily reversed.

NOTE: PLEASE READ THE APPENDIX

“SUMMARY OF FOLLOW-UP TO EACH RECOMMENDATION”

CAT CONCLUDING OBSERVATIONS

1. The Committee welcomes the ratification of State Parties of the following treaties:

• International ovenant on ivil and Political Rights

• International onvention on the Elimination of All Forms of Racial Discrimination

• International onvention on the Rights of the Child, International Convention on the Elimination of

All Forms of Racial Discrimination

• UN onvention on Transnational Organised rime

• Protocol to Prevent Trafficking in Women and hildren

• Second Optional Protocol on International Covenant on Civil and Political Rights

• ouncil of Europe onvention on Trafficking of Human Beings

2. The Committee also welcomes the enactment of Criminal Law 2008 (Human Trafficking) and

International Criminal Court Act of 2006.

3. The Committee also welcomes the development of a National Action Plan to Prevent and Combat

Trafficking of Human Beings, 2009-2012.

4. The Committee also welcomes the development of National Strategy on Domestic, Sexual and

Gender-Based Violence 2010-2014.

5. The State Party recommends the independence of IHRC by ensuring its direct autonomy to

Parliament and financial autonomy. The Committee reports the budget cuts for human rights

institutions.

6. The Committee requests State Party to provide clarification on “rendition programs” and the use

of the State Party’s airports and airspace by flights involved in “extraordinary rendition” The

Committee wants to prevent such rendition cases.

7. The Committee recommends state parties to strengthen protection of persons in need of

international protection. For example, the rights of migrants and refugees in administrative

proceedings should be followed accordingly in order to ensure due process.

8. The Committee reports the need to rehabilitate prisons in order to address the problem of

overcrowding. There is also a need to improve prison facilities in order to comply with international

standards. Theslopping out problem, which involves inhuman and degrading treatment in prisons,

should be addressed. There is also a need to lessen inter-prison violence.

9.The Committee welcomes the establishment of Garda Siochana Ombudsman Commission (GSOC).

The GSOC is empowered to investigate complaints of torture and ill-treatment against Police

Officers.

10.The Committee recommends the improvement of Commission to Inquire into Child Abuse (CICA).

There must be prompt, independent and thorough investigations. The Victims must obtain redress

and have an enforceable right to compensation.

a. There was a failure by State party to protect girls and women confined in 1922 and 1996 in the

Magdalene Laundries.

b. There was also a disappointment in protecting 16 and 17 year old males detained in St Patrick’s

Institution. The construction of a new National Children Detention Facilities has yet to transpire.

c. The Committee recommends the establishment of the Ombudsman for Children.

11.The Committee notes the intention of the State Party to restore the parliament (Seanad) Order

paper the Criminal Justice (Female Genital Mutilation) FGM. The Committee wants to explicitly

define FGM as torture.

12.The Committee notes the concern expressed by the European Court of Human Rights (ECtHR)

about the absence of an effective and accessible domestic procedure in State Party for establishing

whether some pregnancies pose a real threat to mothers. Medical doctors are at risk of criminal

investigation or punishment if their advice or treatment is deemed illegal.

13.The Committee urges State Party to clarify the scope of legal abortion through statutory law and

provide adequate procedures to challenge differing medical opinions as well as adequate services

for carrying out abortions in State Party so that its law and practice is in conformity with the

Convention.

14.The Committee notes the high rates of violence against women in 2009 and 2010. Victims must

be given refuge and support services. The adoption of the National Strategy on Domestic Violence

2010-2014 is recommended.

15. The Committee recommends treatment of person with mental disabilities.

16. The Committee recommends the protection of separated and unaccompanied minors.

17.The Committee recommends the training of law enforcement officers as regards to

implementation of the prohibition on torture.

18. The Committee invites the ratification of the following treaties:

• International onvention on the Protection and Rights of all

• International onvention of Persons with Disabilities

• International onvention of the Protection of Persons from

19.The Committee requests State Party to provide a follow-up information response.

20. The Committee invites State Party to report within the limits of 40 pages. In addition, the

common core documents should be at least 80 pages.

21. The Committee is invited to submit its next report by June 3, 2015. Migrant Workers and

Members of their Families Enforced Disappearance.