Protection of the Family and the Right to Determination of Status without Unreasonable Delay

Gonzalez v Guyana, UN Doc CCPR/C/98/D/1246/2004 (21 May 2010)

The UN Human Rights Committee has held that an undue delay in judicial proceedings to naturalize Mr Gonzalez as a citizen of Guyana constituted unreasonable and arbitrary interference with the right to family in violation of art 17(1) of the International Covenant on Civil and Political Rights.  The Committee also opined the right to a fair hearing was compromised by procedural delays in violation of art 14(1) of the ICCPR.  The delays were found to adversely affect Mr Gonzalez’s application for citizenship.

Facts

Mr Gonzalez is a Cuban doctor who entered Guyana in May 2000 to provide medical services for a period of two years.  He entered Guyana under a medical cooperation agreement between the Cuban and Guyanese governments.  Mr Gonzalez worked for the Cuban Central Unit for Medical Cooperation (UCCM).  The UCCM required him to obtain prior authorization from them before entering into contracts with third parties.  It also provided that he must comply with the legal provisions in force for citizens of Cuba should he decide to marry during the period of his contractual obligations.  Mr Gonzalez worked at a regional hospital a little over a year.  In December 2001, Mr Gonzalez married a Guyanese woman and subsequently applied to the Ministry of Home Affairs for Guyanese citizenship.  The Ministry of Home Affairs advised Mr Gonzalez that the Cuban Embassy warned of possible consequences of granting Mr Gonzalez citizenship or a work permit and that setting such a precedent could jeopardize the medical cooperation between both countries.  The Ministry refused to process his citizenship and application for permanent residence.  Mr Gonzalez filed a writ of certiorari in the High Court challenging the refusal of the Minster to register him as a Guyanese citizen.

The High Court granted Mr Gonzalez certiorari and quashed the decision of the Minister of Home Affairs as being unreasonable, arbitrary, in breach of principles of natural justice and based on irrelevant considerations.  It ordered the office of the Minister to review the application for citizenship within one month of the date of the Court’s decision.  The Minister of Home Affairs failed to review the application by the Court’s deadline.

Mrs Gonzalez subsequently filed a writ of certiorari in the High Court challenging the Minister’s refusal to register her husband as a Guyanese citizen and their failure to comply with the Court’s order to review his case within the one month deadline.  She brought the challenge as a ‘miscarriage of justice’ and a violation of her husbands’ constitutional rights as the spouse of a Guyanese citizen.  She also claimed that, as a dissident, he would face long term imprisonment or execution if returned to Cuba.  The High Court dismissed her motion but did not provide reasons for so doing for a further 28 months.  The court’s failure to issue a ruling prevented Mrs Gonzalez from filing an appeal with the Court of Appeals.

The Committee was asked to consider:

• whether the length of the judicial proceedings before the High Court and the presiding judge’s delay in submitting his decision were unreasonable, in violation of the right to a fair hearing protected by art14(1) of the ICCPR; and
• whether the prolonged proceedings constituted an unlawful and arbitrary interference with Mr Gonzalez and his wife’s right to family under art 17(1) of the ICCPR.

Decision

Admissibility: Exhaustion of Domestic Remedies

The Optional Protocol to the ICCPR requires that an author first exhaust domestic remedies in order for a complaint to be deemed admissible.  The Committee determined that High Court proceedings were unduly prolonged and that the delay in issuing reasons was unreasonable.  The Committee stated:

The Committee considers that, in the present case, domestic remedies have been unreasonably prolonged and that article 5 paragraph 2 (b), does not preclude it from examining the communication.

Article 14(1): Right to a Fair Hearing

The Committee determined the delays in the judicial proceedings constituted a violation of the right to a fair hearing under art 14(1) of the ICCPR.  The Committee stated:

The Committee recalls the concept of a fair hearing, as enshrined in article 14, paragraph 1, of the Covenant, necessarily entails that justice be rendered without undue delay.  The Committee concludes that the above delays were unreasonable and that article 14, paragraph 1, of the Covenant has been violated.

Article 17(1): Prohibition of Arbitrary or Unlawful Interference with Family

The Committee did not take a position on whether or not the interference with both spouses’ family was unlawful within the meaning of art 17(1) of the ICCPR.  However, the Committee concluded the manner in which the Guyanese authorities dealt with Mr Gonzalez’s request for citizenship was unreasonable and constituted an arbitrary interference with family under art 17(1) of the ICCPR.  The Committee noted Mr Gonzalez was legally prohibited from residing in Guyana and forced to live apart from his wife during the prolonged judicial proceedings.  The Committee determined Mr Gonzalez and his wife are entitled to an effective remedy, including compensation and appropriate action to facilitate family reunification.

Relevance to the Victorian Charter

The protection of families and children enshrined in s 17(1) of the Victorian Charter is similar to the prohibition of arbitrary or unlawful interference with family found in art 17 of the ICCPR.  Thus, the Victorian Supreme Court may adopt a similar approach when considering the effect prolonged judicial proceedings have on the right to family.  The procedural guarantees to ensure the right to a fair hearing, which encompasses the right to a hearing without unreasonable delay, found in s 24 of the Charter closely mirror art 14(1) of the ICCPR.

The decision is at http://tb.ohchr.org/default.aspx.

Loren Days is an LLM candidate at Melbourne Law School and a volunteer with the Human Rights Law Resource Centre