Now that we have had an overview of the various complaint mechanisms, it would be useful to examine practical cases. This lesson is split into three sections, each section providing a case study relating to the various procedures:

• A complaint submitted to the Human Rights Committee of the International Covenant on Civil and Political Rights;

• Interim measures issued by the same committee while the case decision is pending; and

• An example of the procedure of the Human Rights Committee in another case: case admissibility, merits and the final decision of the Committee.

A. Michael Anthony Fernando's complaint submitted to the UN Human Rights Committee of the International Covenant on Civil and Political Rights

Below is an excerpt from a complaint submitted before the Human Rights Committee, by Michael Anthony Fernando (for more information on his case, see Lesson Series 30: The Case of Michael Anthony Fernando: Effective Campaigning and Judicial Accountability). This illustrates what a complaint may look like and what information it should contain, such as the author’s identity, the facts of the violation, the State party concerned, articles of a convention violated, all of which a committee hearing a complaint will require.

?lt;/p>

Case of Michael Anthony Fernando: Communication to UN Human Rights Committee I. INFORMATION CONCERNING THE AUTHOR OF THE COMMUNICATION 1.1 The author of this application is Anthony Michael Emmanuel Fernando, a Sri Lankan national, and an English teacher by profession. The Applicant was born on 1st September, 1954 in Colombo, Sri Lanka, and is ordinarily a resident at No. 187/70A, Jaya Samagi Mawatha, Hospital Road, Dehiwela, Sri Lanka. The author is represented by: 1. Kishali Pinto-Jayawardene of No 12B Sarasavi Gardens, Nawala Road, Sri Lanka; and 2. Suranjith Hewamanne of No 530/7 Havelock Road, Colombo 6, Sri Lanka, who, as counsel, are assisted by the Asian Human Rights Commission of Unit D, 7/F Mongkok Commercial Centre, 16-16B, Argyle Street, Kowloon, Hong Kong... (A letter of authorization from the Applicant appointing the above attorneys-at-law as his legal counsel is attached as Annex A). 1.3 The Applicant is currently held in Welikada Prison, Borella, Sri Lanka, where he is serving one year's imprisonment in connection with his conviction for contempt of court by the Supreme Court of Sri Lanka on 6 February 2003. II. STATE CONCERNED 2.1 The State Party to the International Covenant on Civil and Political Rights ('the Covenant' or 'ICCPR') and the First Optional Protocol against which this communication is directed is the Democratic Socialist Republic of Sri Lanka. III. ALLEGED BREACHES OF THE ICCPR 3.1 It is submitted that this case, which arises in relation to a conviction for contempt of court by the Sri Lankan Supreme Court in Case S.C. F/R No. 55/03 (Fernando v. AG of Sri Lanka and others)... involves breaches of Article 9, Article 14 and Article 19 of the Covenant relating to the Applicant's trial, conviction and sentence, and Articles 7 and 10 of the Covenant, relating to the circumstances and conditions of his subsequent detention. 3.2 More specifically, the Applicant's claim relates to: a) The criminal process involving the Applicant in Fernando v. A.G. of Sri Lanka and others S.C. F/R No. 55/03. This culminated in the Supreme Court's conviction of the Applicant of contempt of court on 6 February 2003 and its decision to impose a sentence of one year's 'rigorous imprisonment' for contempt. This verdict was reached in the absence of any hearing prior to the conviction, without any specific charge being against the Applicant and without affording the Applicant any opportunity to seek access to counsel, and was not subjected to any further appeal hearing. It is submitted that this process has been seriously flawed and...in breach of his rights under Article 14 of the Covenant. b) The use of contempt proceedings in response to the applicant's attempt to bring an action in good faith by filing fundamental rights petitions (under the Constitution of Sri Lanka) and the consequent breach of his rights under Article 19 of the Covenant. c) The conditions of imprisonment and alleged ill-treatment of the Applicant while in prison following his detention, in breach of Articles 7 and 10 of the Covenant. These grounds are further elaborated below... 3.3 Summary of Facts: The Author makes the following submissions in relation to S.C. F/R No. 55/03: 3.3.1 The Applicant filed a workman's compensation claim before the Deputy Commissioner of Workmen's Compensation. Following rejection of this claim, he made further complaints to various other authorities, and ultimately filed two separate constitutional petitions before the Supreme Court of Sri Lanka, alleging breach of his fundamental rights guaranteed under the Constitution of Sri Lanka. The Supreme Court consolidated these two petitions for hearing. 3.3.2 The Applicant then filed a further petition on 30.1.2003 alleging that the consolidation of these two petitions... had affected his right to be heard in a just and fair manner and had violated his constitutional rights to fair trial. This petition implicated, among others, the Chief Justice of Sri Lanka and two other sitting judges of the Supreme Court... 3.3.5 The law governing the Supreme Court of Sri Lanka's powers to punish individuals for contempt of court is set out in Article 105 (3) of the Constitution of Sri Lanka 1973 ('the Constitution'), which provides as follows: The Supreme Court of the Republic of Sri Lanka and the Court of Appeal of the Republic of Sri Lanka shall each be a superior court of record and shall have all the powers of such court including the power to punish for contempt of itself, whether committed in the court itself or elsewhere, with imprisonment or fine or both as the court may deem fit... 3.4 Fair Hearing: It is submitted that the judicial process culminating in the Applicant's conviction for contempt and his imprisonment immediately thereafter breaches his right to fair hearing, as guaranteed by Article 14 of the Covenant, and in particular of Article 14(1), 14(2), and 14(3) a), b), c) and e), as follows: a) Firstly, the Applicant was denied a genuine hearing on the contempt matter and no inquiry was held into this matter (as evident in Annex C and D); consequently, the finding of guilt and sentencing were not supported by trial or inquiry. Yet in Re Pollard, the Judicial Committee stated that 'no person should be punished for contempt of Court, which is a criminal offence, unless the specific offence charged against him be distinctly stated, and an opportunity of answering it be given to him.' b) Secondly, no opportunity was given for the preparation and presentation of a defense and, therefore, the Judges had no opportunity to take into consideration any defense when they decided that the Applicant was guilty of criminal contempt. As there was no hearing on mitigation of sentence, the judges had no opportunity to address issues relating to mitigation... c) Thirdly, it is doubtful whether there is proof as to whether the Applicant has committed contempt in the first place... d) Fourthly, the judges had not come to the finding that Mr. Fernando was acting with the intention of disturbing the court (see Annex C and D). A deliberate intention to commit contempt of court has not been established. e) Fifthly, the Applicant was denied a fair hearing by an 'impartial' tribunal (Article 14(1))... f) Sixthly, the hearing in respect of the contempt matter was held summarily, with the applicant being given no opportunity either of being informed in detail of the nature and cause of the charge against him, or having adequate time and facilities for the preparation of his defence or to communicate with counsel (Article 14(3) (a), (b), (d))... g) Seventhly, the Applicant was convicted, sentenced and imprisoned without being given any opportunity to appeal against his conviction or sentence (Article 14(5))... h) Eighthly, the sentence of one year's imprisonment is grossly disproportionate to the offence which the Applicant was found to have committed... i) In considering the issue of fair trial, it is also a relevant consideration that there had been much international and national concern expressed regarding the judicial conduct of Chief Justice Sarath Nanda Silva who was the presiding judge in this case... 3.5. Arbitrary Detention: It is submitted that the imprisonment of the applicant without a fair trial amounts to arbitrary detention and is in breach of Article 9 of the Convention... 3.6 Freedom of Expression: It is further submitted that the use of powers of criminal contempt in relation to the Applicant's submission of fundamental rights petitions before the Court is wholly disproportionate, thereby violating his right to freedom of expression as guaranteed by Article 19 of the Covenant... 3.7 Torture and Ill-Treatment: It is submitted that the conditions of detention inflicted on the Applicant clearly represent a form of torture and/or cruel, inhuman and degrading treatment and constitute a breach of Sri Lanka's obligations under Article 7 and Article 10 of the ICCPR... e) On 10th February 2003, the Applicant experienced severe pain all over his body but was not given medical attention. His condition was so critical that his Father who visited him brought a priest to give the final sacrament given only to persons who are about to die. f) The Applicant states that on his discharge from the Hospital on 10 February 2003, and his removal to the prison, he was assaulted several times, specifically between 2 and 5 p.m., when he was beaten by prison guards outside the prison on the road. He was then pushed into a police van where he was kicked repeatedly on the back causing damage to his spinal cord. On his arrival in prison, the Applicant was taken on a stretcher and left to lie near a putrid toilet. He was then stripped naked and left to lie near the toilet for a further 24 hours. Following this sequence of events, the Applicant began to urinate blood and was returned to the hospital in a van. As of 11 February 2003, he has been unable to rise from his bed... IV. EXHAUSTION OF DOMESTIC REMEDIES 4.1 It is submitted that the Applicant has exhausted every possible domestic course of action which might constitute a remedy. Under Sri Lankan law there is no provision for any appeal against a judgment of the Supreme Court regarding contempt of court or any other matter. As an exceptional measure, a petition seeking review of a judgment of the Supreme Court may be filed. However such a review petition would usually be heard before the same judges who considered the original petition in the matter. 4.2 In the instant matter, such a review petition was submitted on behalf of the Applicant, and was heard on 2 June 2003 in the Supreme Court by the same panel of three judges which had convicted him for contempt, almost four months after his initial imprisonment... 4.4 Moreover, as regards constitutional remedies, it may be noted that the Sri Lankan Constitution (Article 126(1)) only permits judicial review of 'executive or administrative' as opposed to 'judicial' action. The apex courts in Sri Lanka have also held that judicial review of judicial action is not permissible... V. LIMITATION 5.1 This application is admissible ratione temporis. The Supreme Court of Sri Lanka's final order on 6 February 2003 convicting the Applicant for contempt of court and sentencing him to a year's imprisonment, and its subsequent order of 2 June 2003 dismissing the review petition filed on behalf of the Applicant, were both passed after the First Optional Protocol came into force for the State Party. VI. OTHER INTERNATIONAL PROCEDURES 6.1 This matter has not been submitted for examination to any other procedure of international investigation or settlement. VII. INTERIM MEASURES 7.1 The Applicant requests in this communication that the Committee consider recommending the adoption of interim measures by the State Party pursuant to Rule 86 of the Rules of Procedure. In the past, the Committee has recommended the adoption of interim measures in situations where it is desirable to avoid 'irreparable damage' to the Applicant... 7.5 The Committee is accordingly requested to consider recommending that the State Party adopt interim measures, pursuant to Rule 86 of the Rules of Procedure of the Human Rights Committee, to release the Applicant pending a full impartial and independent hearing into the alleged contempt. VIII. CONCLUSION 8.1 It is submitted that the Applicant has suffered a violation of his rights as guaranteed by Articles 9, 14, 19, 7 and 10 and Article 2(3) of the Covenant respectively. 8.2 It is further submitted that given the Applicant's frail state of health and already substantial period of imprisonment—during which he suffered deterioration of his mental health due to imprisonment and degrading treatment—early release from prison would be the most appropriate remedy. The Committee has earlier found release to be the most effective remedy in several cases of breach of the right to fair trial under Article 14. 8.3 Finally, it is submitted that, as a victim of unlawful detention and a miscarriage of justice, the Applicant should be entitled to compensation under Article 14(6) of the Covenant. IX. RELIEF SOUGHT 9.1 Accordingly, the author hereby requests the Committee: a) To declare a breach of the Applicant's rights under the Covenant, specifically under Articles 9 and 14, Article 19, Article 10 and Article 7, read with Article 2(3) of the Covenant; b) To declare that the application of Article 105 (3) of the Sri Lankan Constitution 1973 is incompatible with the Applicant's rights to fair trial, freedom of expression and an effective remedy, under Articles 14 and 19, read with Article 2(3) of the Covenant respectively; c) To recommend that the State Party consider taking necessary steps to adopt legislative and other measures necessary to give effect to Articles 9, 14, 19, 7 and 10, as well as Article 2(3) of the Covenant, including framing legislation to regulate the Supreme Court's powers of contempt; d) To recommend that the State Party commute the Applicant's sentence and order his immediate release from prison; and e) To recommend that the State Party award compensation to the Applicant, pursuant to Article 14(6) of the Covenant, for disproportionate punishment in respect of his conviction in Case SC.FR NO. 55/03 (Fernando v. AG of Sri Lanka and others) and for the miscarriage of justice suffered as a result of his arbitrary and continued incarceration. Signed by Author Dated: 10 June 2003 ANNEX LIST OF DOCUMENTS A. Letter of Authorization of Counsel B. Petition before the Supreme Court Enforcing Fundamental Rights B1. Motion Relevant to Same C. Journal Entry of Supreme Court, dated 6 February 2003 D. Later Order of Supreme Court D1. Statement of Article XIX dated 26 February 2003 D2. Article in Sri Lankan newspaper dated 23 February 2003 D3. Statement in Sri Lankan newspaper dated 18 February 2003 E. Press Release of UN Special Rapporteur on the Independence of the Judiciary and the Legal Profession, dated 17 February 2003 F. Report of the International Bar Association, 2001 G. 'Torture Petition' G1. Connected Affidavit G2. Medical Reports H. 'Review Petition' I. Press Release of UN Special Rapporteur on the Independence of the Judiciary and the Legal Profession, dated 28 May 2003

?lt;/p>

B. An excerpt of interim measures issued by the Human Rights Committee

The interim order below was issued in Michael Anthony Fernando's case, while his complaint was being considered by the Human Rights Committee.

Reference: G/SO215/51 SRI (7) KF 1189/2003 9 January 2004 ... [C]onsidering the urgency of this matter, the Special Rapporteur [on New Communications] has reviewed your request for interim measures of protection. The Special Rapporteur noted that the request relates to various alleged death threats against the author and his family, by reason of the author's communication to the Human Rights Committee. Pursuant to Rule 86 of the Committee's rules of procedure, and while the communication is under consideration by the Committee, the Special Rapporteur requested the State party: To adopt all necessary measures to protect the life, safety and personal integrity of the author and his family members, so as to avoid irreparable damage to them and; To inform the Committee on the measures taken by the State party in compliance with the decision within 30 days from the date of this Note Verbale, that is no later than 9 February 2004.

C. An example of the procedure and decision of the Human Rights Committee in the Sarma vs. Sri Lanka case

a. Summary of facts

This came to the Committee's attention in early 2000 when the complainant (the author) submitted a complaint alleging that the State of Sri Lanka had violated the International Covenant on Civil and Political Rights (the Covenant) when the author's son was abducted by members of the Army which resulted in the son's subsequent disappearance. (Further details about this case can be found in Sri Lanka Legal Reforms and Human Rights, Vol.1, No.3, October 2003.)

On the morning of 23 June 1990, the author, his son and three other persons were removed from the author's house by members of the army during a "cordon and search operation". Their removal was witnessed by other family members, and while in detention, they were handed over to other members of the army, including one Corporal Sarath, and detained at a number of army camps. The author's son was apparently suspected of being a member of the Liberation Tigers of Tamil Eelam (the LTTE) and was allegedly beaten and tortured on a number of occasions. The day following their detention, all detainees were released, except the author's son. He remained indefinitely detained and his whereabouts, let alone his existence, remains in doubt.

In May 1991, almost one year following the son's detention, the author was informed by army personnel that his son was dead. However, in October 1991, in a chance occurrence, the author claimed that he saw his son sitting inside a military vehicle. On this occasion, the author claimed that his son acknowledged his father but because of the circumstances, the author could not speak with his son. The author did not see his son again following this incident. It was after this that the author sought his son's release through various means, including petitioning the Prime Minister three times in 1993, 1995 and in 1999; and giving evidence before a "Presidential Commission of Inquiry". Despite these efforts, they yielded no results and the author was no closer to knowing the fate of his son. It was then that the author took his complaint to the Committee.

b. The complaint

As stated above, not only was the son a victim of abduction, alleged torture, and subsequently "disappearance", but so to was the father and his family a victim as a result of the abduction that took place in June 1990. In this regard, the father appeared as both representative for his son, and family, and as a victim himself and as highlighted in Lesson 1 is permissible and serves as one of the points to be considered for admissibility of a complaint.

In his complaint, the author submitted that the events that took place and the son's subsequent treatment and disappearance constituted violations of the Covenant. The author argued that the facts showed that the Sri Lankan Army was responsible for these violations, and being an organ of the State, the state of Sri Lanka was also responsible for his son's abduction and subsequent disappearance. And because Sri Lanka was a State party to the Covenant, it had violated Articles 6,7, 9 and 10 of the Covenant:

Article 6: Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 7: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 9: Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.

Article 10: All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

c. The procedure adopted by the committee

Having submitted his complaint to the Committee and following its registration, the Committee determined the mechanism to be adopted for dealing with the complaint. Departing from the general procedure outlined in Lesson 1, the Committee proceeded to have the case decided in two stages. First, dealing with its admissibility, followed by a second, dealing with its merits in which the Committee made its final decision on the complaint. For the complete decision, see Sri Lanka Legal Reforms and Human Rights, Vol.1, No.3, October 2003.

The admissibility of the case

Following the registration of the complaint, the Committee sent a copy to the State party to comment on its admissibility and was given a fixed period of time for this. Subsequently, on 26 February 2001, the Sate party submitted a number of objections arguing that:

• The alleged involuntary removal of the author's son, and his subsequent disappearance, occurred before the entry into force of the Optional Protocol for Sri Lanka;
• The complainant had not exhausted all available domestic remedies (which were set out); and
• Regarding those remedies, the complainant had failed to demonstrate that they would be ineffective, or would unreasonably prolong the conclusion of his case.

Essentially, the State party was objecting to admissibility on the grounds which had been set out in the Committee's Rules of Procedure and needed only to show that any one of these grounds would apply for the case to be inadmissible.

Having received these objections, the Committee then sent them to the author to give him an opportunity to reply, within a fixed period of time, before the Committee met to consider the arguments and give its decision on admissibility. In his reply, which he submitted on 25 May 2001, the author essentially stated that:

He and his family were suffering from a continuing violation of Article 7 of the Covenant as he had no information about his son's location, and that this treatment was a form of psychological torture aggravated by the contradictory replies from the authorities. In effect, the violation was of a continuing nature and carried on after the Optional Protocol came into effect for Sri Lanka.

He had gone to various efforts to find out the location of his son, which included sending or filing requests with numerous Sri Lankan authorities, including the police, the army, the national human rights commission, several ministries, the president of Sri Lanka and the Presidential Commission of Inquiry.

The other available domestic remedies, including the remedy of habeus corpus, were unhelpful or ineffective and futile to pursue (which he then substantiated).

Having received the parties' arguments, the Committee, at its next sitting, met and decided on the issue of admissibility of the case.

It is interesting to note that, even where the parties did not address certain issues of admissibility, the Committee itself had to check that the same matter was neither pending before, nor had been examined under another procedure of international investigation or settlement ?a matter which the complainant must also address in its complaint. Noting that the complaint raised issues under Article 7 of the Covenant with regard to the author and his family and under Articles 6 and 10 of the Covenant with regard to the author's son, the Committee then reviewed the parties' arguments and made the following conclusions in support of the complaint being admissible:though the alleged detention and subsequent disappearance took place before the entry into force of the Optional Protocol for the State party, "?the alleged violations of the Covenant, if confirmed on the merits, may have occurred or continued after the entry into force of the Optional Protocol." On this basis, the complaint was admissible.
& 3. "…[on] the question of exhaustion of domestic remedies…in the circumstances of the case, the author had used the remedies that were reasonably available and effective in Sri Lanka." In essence, the author had satisfied all available domestic remedies.

Following the conclusion of this stage, the Committee then requested the parties to comment on the merits of the case.

The merits of the case

Following the parties' submission of their arguments on the merits, the Committee at its next sitting, met to consider the matter and give its final decision. For the purposes of brevity, here we will refer only on the author's counterarguments on the merits of the case and what the Committee decided on those.

On 2 August 2002, the author submitted his counterarguments which in essence stated that:

• around the time the author's son disappeared disappearances were systemic. To support this the author referred to the "Final Report of the Commission of Inquiry into Involuntary Removal or Disappearance of Persons in the Northern and Eastern Provinces" which officially recognized that disappearances were common in parts of Sri Lanka around 1989 and 1990;
• the State party, in its objections on the merits, essentially confirmed that the complainant's son was abducted on 23 June 1990 by Corporal Sarath, who was a member of the Army personnel, even though the State claimed it was not done with it's sanction;
• the State party was responsible for the alleged disappearance of the author's son because Corporal Sarath was a member of the Army personnel and acting under orders of an officer to conduct a "cordon and search operation" in that area during the period in question;
• whether or not Corporal Sarath was acting beyond his authority when he abducted the author's son was immaterial, because "?[where] the violation of Covenant rights is carried out by a soldier or other official who uses his or her position of authority to execute a wrongful act, the violation is imputable to the State, even where the soldier or the other official is acting beyond his authority." ; and
• enforced disappearances represent a clear breach of various provisions of the Covenant, including Article 7, and in respect of the alleged disappearance, responsibility could be imputed to the State party on account that the Sri Lankan Army is an organ of the state.

C. The Committee's decision

The Committee having met to consider the merits of the case and give its final decision, made a number of conclusions, notably:

On the disappearance of the son and responsibility of the State

"?the Committee notes that the State party has not denied that the author's son was abducted by an officer of the Sri Lankan Army on 23rd June1990 and has remained unaccounted for since then. The Committee considers that, for purposes of establishing State responsibility, it is irrelevant in the present case that the officer to whom the disappearance is attributed acted ultra vires or that superior officers were unaware of the actions taken by that officer. The Committee therefore concludes that, in the circumstances, the State party is responsible for the disappearance of the author's son."

On the disappearance violating the Covenant

"…The facts of the present case clearly illustrate the applicability of article 9 of the Covenant concerning liberty and security of the person. The State party has itself acknowledged that the arrest of the author's son was illegal and a prohibited activity. Not only was there no legal basis for his arrest, there evidently was none for the continuing detention. Such a gross violation of article 9 can never be justified. Clearly, in the present case, in the Committee's opinion, the facts before it reveal a violation of article 9 in its entirety."

On the violation of the rights of the author and his family under the Covenant

In considering not only the effect of the disappearance on the author's son, but also the ongoing anguish and stress caused to the author's family because of the continuing uncertainty of the son's fate and location, the Committee concluded that the author and his family were also victims of a violation of article 7 of the Covenant. It stated:

"…The Human Rights Committee?is of the view that the facts before it disclose a violation of articles 7 and 9 of the International Covenant on Civil and Political Rights with regard to the author's son and article 7 of the International Covenant on Civil and Political Rights with regard to the author and his wife."

Having formed the view that the State party was in violation of the Covenant and noting the State party's obligations, under Article 2, to provide an effective remedy to persons whose rights or freedoms had been violated under the Covenant, the Committee then gave its views (recommendations) on how the complaint should be resolved:

"…the State party is…to provide the author and his family with an effective remedy, including a thorough and effective investigation into the disappearance and fate of the author's son, his immediate release if his is still alive, adequate information resulting from its investigation, and adequate compensation for the violations suffered by the author's son, the author and his family."

In respect of the pending criminal proceedings against those alleged to have been the perpetrators of the disappearance, the Committee recommended:

"…the State party…expedite the current criminal proceedings and ensure the prompt trial of all persons responsible for the abduction of the author's son…and to bring to justice any other person who has been implicated in the disappearance. The State party is also under an obligation to prevent similar violations in the future."

Compliance with the recommendations

Finally, the Committee invited the State party to report on the measures it would take to implement the Committee's views:

"…pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within ninety days, information about the measures taken to give effect to the Committee's Views."

D. Questions for discussion

1. Using the example of the complaint submitted for Anthony Fernando above, and bearing in mind that it was drafted with the support of legal advisors, identify what points in a complaint would require further substantiation by referring to witness' evidence. Consider which points may require reference to legal arguments, for example the treaty concerned, case law or official reports and discuss how you would go about collecting further evidence.
2. What circumstances could possibly be a reason for a committee ordering interim measures?
3. Evaluate Michael Fernando's complaint submitted to the Committee - have all conditions of admissibility been met? If not, what is missing?
4. Discuss the criteria of admissibility needed for making complaints and then draft a submission using cases of human rights violations from your own experience.