On
the Question of Standing
Case |
Quotes
from Decision |
Holding
and Summary |
| International
Convention on the Elimination of All Forms of Racial Discrimination
Committee on the Elimination of Racial
Discrimination
Fifty-seventh session
Communication
No 13/1998 : Slovakia. 01/11/2000. CERD/C/57/D/13/1998.
November 1, 2000
|
Even
though the author does not now and did not previously reside
in the affected municipalities, she is among the class of
persons defined by the challenged resolutions who are adversely
affected by them. Both the text of the resolutions and the
background of anti-Roma hostility which underlies their
adoption make it reasonable to believe that the risk of
additional adverse effect – i.e. that, if violated,
the Resolutions might be enforced through, inter alia, physical
force – is high. Counsel:
As for the failure to present evidence, counsel reiterates
its arguments concerning the “victim status”
of the author and suggests that in assessing such status
the Committee should be guided by the jurisprudence of
the European Court, which entitles individuals to contend
that a law violates their rights by itself, in the absence
of an individual measure of implementation, if they run
the risk of being directly affected by it. It is not necessary
for the author to demonstrate that she was actually placed
in an unfavourable position. The author has been personally
affected by the resolutions in the following ways:
- Inhuman
and degrading treatment. The author has personally suffered
degrading treatment, direct emotional harm, loss of
human dignity and humiliation owing to the existence
of the two resolutions, a fact not altered by their
subsequent cancellation. It is therefore not unreasonable
that the applicant, as any other Romany person in Slovakia,
feels that she has been personally offended and publicly
shamed in a way different from the moral outrage which
may be felt by even the most sympathetic of non-Roma.
- Subjection
to undue restrictions on her personal freedoms. The
author was affected by the threat of a potential use
of violence; prevented from entering or settling in
the vicinity of Nagov and Rokytovce, thereby violating
her rights to freedom of movement and freedom to choose
a residence; and prevented from having personal contact
with persons in the vicinity of Nagov and Rokytovce,
thereby violating her right to private life.
- The
author has also been directly affected by the existence
of the resolutions because she is affected by the atmosphere
of racial discrimination around her.
|
Admissible
The Committee was of the view, contrary
to the State party, that the author could be considered
a “victim” within the meaning of article 14,
paragraph 1, of the Convention, since she belonged to
a group of the population directly targeted by the resolutions
in question.
Establishing
victim status requires the demonstration that the individual
was harmed. In this case, the victim’s status as
a member of the group discriminated against affected her
despite the fact that the law was not directly applied
to her. Victim status can be argued to exist where the
violation has indirect adverse effects on the author of
the communication.
|
| Convention
against Torture
Communication No 60/1996 : Tunisia. 24/01/2000.
CAT/C/23/D/60/1996.
|
The
author of the communication is Mr. Khaled Ben M’Barek,
a Tunisian national currently residing in France, where
he enjoys refugee status. He submits a written authorisation
from Jamel Baraket, the elder brother of Faisal Baraket
(deceased), to act on his behalf. He claims that Faisal
Baraket and his family are victims of violations by Tunisia
of articles 2, 11, 12, 13 and 14 of the Convention.
[…]
The State party expresses doubts concerning the authenticity
of the power of attorney granted to the author by Jamel
Baraket, the alleged victim's brother.
[…]
The Committee referred to article 22, paragraph 1, of the
Convention and to rule 107, paragraph 1 (b), of its rules
of procedure, which allow a communication to be submitted
on behalf of an alleged victim if the author can justify
acting on his behalf.
[…]
In this regard, the Committee noted that the State party
had expressed doubts about the genuineness of the written
authorization but had not presented sufficient evidence
to conclude that the document signed by the alleged victim's
brother was a forgery. |
Admissible
The Committee found the communication
admissible. In this case, it required the State Party
to submit evidence to counter the presumption that the
written authorisation was genuine.
If
the author of the communication is submitting it on behalf
of a victim, the author should include evidence that would
provide a rebuttable presumption that he/she is authorised
to act on behalf of the victim.
|
| Convention
against Torture
A. E. M. and C. B. L. v. Spain, Committee
against Torture,
Communication No. 10/1993, U.N. Doc. A/50/44 at 43 (1995).
February 2, 1993
Decision on Admissibility
|
The
authors of the initial communication are A. E. M. and C.
B. L., citizens of Spain residing in Santurce in the Basque
province, writing on behalf of their son J. E. and his wife
E. B., who are currently detained at the Spanish prisons
of Orense and Albacete, respectively. By power of attorney
of 31 December 1993, Mr. E. authorized his parents to act
on his behalf and on behalf of his wife. |
Admissible
In this example, relatives of the victim
are bringing the communication on the victim’s behalf.
They have obtained the victim’s consent to act on
his behalf.
|
Prepared
for IWRAW Asia Pacific by Amanda Norejko, former student of
New York University,
International Human Rights Clinic
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