Reference: CCPR/C/114/D/2036/2011

Decision Year: 2015.07.21

Related Articles:

• Article 9.5

Keywords:

• Arbitrary arrest Arbitrary detention

Full Case:

• link En

Facts:

The author a russian federation national, due to her Chechen ethnicity had been forced to move to Kazakhstan in 1944 following the adoption of a decree and ordinance. This forced internment lasted 13 years in Kazakhstan. On 16 May 2005, the russian administration provided her a certificate confirming that she had been a victim of this deportation to Kazakhstan, as part of the chechen ethnicity.

According to the law, the author may ask for compensation due to this repression. Therefore, she requested an allowance before the Kirov District Administration, which refused, saying that she already received other forms of social benefits.

The author filed appeal before the Kirov District Court. She claimed that those “Social benefits as a labour veteran and a person with disabilities should be examined separately from the payment to be victim”. This appeal has been rejected on 25 July 2006 saying that according to the law, a rehabilitated person cannot receive any additional compensation if this person is already entitled of social benefit. Finally, on 23 August 2006, she filed appeal before the Astrakhan Regional Court, which has been rejected on 15 September 2006, for the same above reasons.

Concerning the supervisory appeal before the Supreme Court, the author missed the deadline submission, therefore this appeal was rejected on March 2008.
To that end, the author submitted communication alleging to be a victim of violations of her rights under articles 2, because she did not receive any effective remedies; article 9 (5) because the government failed to compensate the victim for the political repression and article 26 because the authority denied the equal protection of the law for all persons.

Committee’s Merits

In regard to the author’s claim under article 9 (5) that her right to receive compensation for being victim of repression was violated. According to the State party and the domestic law, the author cannot cumulate several compensation and similar social benefits. However, the Committee recalled the sense of article 9 (5) saying that “anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation”. In that case, the State party denied this enforceable right to compensation as set out in article 9 (5). Therefore, the Committee concluded to a violation of the author’s rights “to compensation under article 9 (5) of the Covenant”.

Committee's Admissibility

The State party underlined that the author missed the deadline to filed appeal before the Supreme Court, however, the State party did not challenge the admissibility explicitly. Therefore the Committee found this communication can be examined under article 9 (5), except regarding the consideration under article 2 (2) and (3) and article 26 because the author failed to sufficiently substantiate them. Indeed, the Committee notes further the State recognized the author as a victim of political repression but denied her right to compensation in 2006 so it considers itself competent to examine the violation of article 9(5) of the Covenant.

Recommendation

In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy, including reconsideration of her request for compensation through a procedure that takes into consideration the Committee’s findings.

The State party is also under an obligation to prevent similar violations in the future.

Deadline to Submit the Report on the Implementation of the Recommendations

180 days from the adoption of the views: 21 January 2016

Individual opinion of Committee member Sir Nigel Rodley (dissenting)

Individual Committee member Sir Nigel Rodley has a dissenting opinion on the matter of admissibility of this case with regard to the article 1 of the Optional Protocol of the Covenant. According to him, the Committee should have found inadmissible this communication.

To that extent, Mr Nigel recalled the scope of the article 1 of the optional protocol (OP) and the jurisprudence of the Committee (see communication Nos 422/1990, 423/1990 and 424/1990, Aduayom et al. v. Togo. Views adopted on 12 July 1996, para. 7.3): for the purpose of the consideration of a communication, the State party has to be a party to the OP at the time of the violation. However, in that case, at the time of the violation the Russian Federation was not party to the OP. He underlined the longstanding practice of the Committee regarding the non retroactivity of the OP. Since the State party failed to invoke this argument to raise the inadmissibility of the case, the Committee simply ignored this issue. But according to Sir Nigel, the Committee should have denied the right to receive this communication.
Mr Nigel added that the admissibility could be also challenged regarding the criteria of “exhausted domestic remedies”. Once again, the State party failed to invoke this act. Indeed, the author failed to meet deadline submission of a claim before the Supreme court. The State party underlined this issue during its observation, but it was not sufficiently and clearly explicit on how this procedure before the Supreme court could have been an effective remedy.

Individual opinion of Committee member Anja Seibert-Fohr, joined by Committee members Yuji Iwasawa, Yuval Shany and Konstantine Vardzelashvili (dissenting)

Individual Committee members Anja Seibert-Fort, Yuji Iwasawa, Yuval Shany and Konstantine Vardzelashivili have a dissenting opinion on the same matter of the admissibility of this case with regard to the application of article 1 of the optional protocol to the Covenant.

Committee members  recalled the exact dates of this case: the deportation and internment took place in 1944. The optional protocol in the Russian Federation entered into forced in 1991. The author had been victim of the abuses during 13 years, therefore, the violation had stopped in 1957 (at that time, nor the ICCPR, nor the OP was entered into force). Therefore the violation cannot be qualified as a violation of the Covenant. Without any other violation from 1991, the communication should be considered as inadmissible.

At the end of their “dissenting opinion”, Committee members stressed that “even when a State party does not raise objections to the admissibility of a communication, the COmmittee must examine whether it is competent ratione temporis to consider the communication”.