ICCPR Case Digest

CCPR/C/125/D/2238/2013

Communication

2238/2013

Submission: 2013.03.13

View Adopted: 2019.03.29

N.P.S.S. and M.K. v. Canada

Substantive Issues
  • Effective remedy
  • Equality before the law
  • Fair trial
  • Right to life
  • Torture / ill-treatment
Relevant Articles
  • Article 13
  • Article 14
  • Article 2
  • Article 2 - OP1
  • Article 3 - OP1
  • Article 6
  • Article 7
Full Text

Facts

The authors of the Communication were two Nationals, N.P.S.S and M.K. whom both alleged Canada violated their rights under Articles 2, 6, 7, 13 and 14 of the Covenant. Following the filing, the Special Rapporteur on new communications and interim measures requested Canada refrain from returning the authors to India. The measures stood following a dialogue with the parties, and the authors remained in Canada pending the views of the Committee.

  • The authors alleged that in August 2000, N.P.S.S. was arrested in India on suspicion of being a militant. He alleges he was tortured, interrogated, and released two days later.
  • Separately, M.K. married G.S. in 2001, however allegations of intermarital abuse followed. When she filed for divorce the families of both parties did not appear in court as they percieved it an attack on their honor. The divorce was pronounced without contestation. 
  • The authors later married in 2007 with the support of their families. However, this later wedding was badly recieved by G.S. and family, whom allegedly made death threats to N.P.S.S.
  • The authors claimed asylum in Canada, which was denied on the basis of an alternative internal flight and residence options in India (outside the Punjab). Their later application for judicial review was denied.
  • The authors filed for multiple pre-removal risk assessments however each was denied.

State party reply

  • Canada alleges that because M.K. did not have a valid residence document, she was subject to a valid removal order. Canada further argues that interim measures are not appropriate as the alleged risks of torture or severe mistreatment are related to a family dispute over their marriage.
  • Canada further argued that the domestic decision-makers assessed the risk of torture and cruel treatment if returned to India and concluded that their is an alternative flight arrangement that places the authors outside the risk anticipated had they flown back to their place of origin.  

Complaint

The authors alleged to the Committee there is very strong evidence that they are still at risk of mistreatment, torture and honour killing in India. Additionally, they alleged that in India there is evidence that due process will not be followed, and therefore there is no effective remedy should they face violence in India.

Admissibility

  • The Committee considered that the matter is not being examined under another procedure of international investigation of settlement, and also consider that the authors have exhausted all domestic remedies as required by Article 5(2) of the Optional Protocol.
  • The Committee noted that it is generally for the State party organs to assess the facts and evidence of deporation cases, unless it is found that such assessment was clearly arbitrary or amounted to a denial of justice.
  • However in this case, the Committee determined that proceedings at the State level did not suffer such defects, and as such the communciation was insufficiently substantiated and therefore inadmissible.

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