Right to privacy and right to fair trial guarantees in the context of corruption inquiry

Facts

The author of the communication is Mr. Charif Kazal, a national of Australia. An Independent Commission Against Corruption (ICAC) investigated an alleged conflict of interest and published findings that the author had sought to improperly influence the exercise of an executive officer’s official functions with threats or bribes; that his conduct was corrupt; and that his conduct “could” constitute or involve two criminal offenses. There was insufficient evidence to prosecute the author criminally, and he was never charged with any crimes. The author challenged the jurisdictional validity of the ICAC findings in court, but his request was denied. Thereafter, it was recommended that the ICAC change its practices to conduct examinations in private and implement an exoneration protocol. The author followed up with the ICAC urging it to reform its practices, but the ICAC did not do so. The author made a formal complaint to the Australian Human Rights Commission which was denied due to lack of jurisdiction. The author argues that there is no way for him to challenge the findings or seek recourse, which has left him with a stain on his reputation. The author claims Covenant violations under articles 14 (1) – (2) regarding fair trial rights, 14 (5) regarding the right to an effective review, and article 17 regarding the right to be free from arbitrary or unlawful interference with his privacy, family, home or correspondence and unlawful attacks on honour and reputation.

Admissibility

The Committee stated that the author was not charged with or found guilty of a criminal offence and did not face a sanction that could be regarded as penal, and the ICAC could not be characterized as a judicial procedure, so his claim fell outside of the scope of article 14 (1) - (2) and (5). The author’s claims under article 14 were thus inadmissible. The author sufficiently substantiated his claim that the public finding by ICAC was a violation of his right to privacy under article 17.

Merits

Any interference with the right to privacy must be lawful and not arbitrary, in accordance with the provisions, aims, and objectives of the Covenant and reasonable in the particular circumstances. Regarding the article 17 protection to personal honour and reputation, States parties must provide adequate legislation, provide for effective protection against unlawful attacks, and provide for effective remedies. The Committee found that the ICAC’s procedure to hold a public hearing and make public highly sensitive findings that could not be challenged by the author, with no reasoning as to its decision to make the hearing and findings public, amounted to an arbitrary interference in the author’s right to privacy. The ICAC’s procedure was not proportionate and necessary to the objective pursued in the circumstances and violated the author’s article 17 rights.

Recommendations

The State party should, inter alia, take appropriate steps to provide adequate compensation and reparation to the author for the violation suffered.

Implementation

Deadline for implementation: 3 January 2024

More information on the case:

— Daily Telegraph - Sydney Businessman’s Charif Kazal’s Human Rights Violated By ICAC United Nations Declares