Torture, forced eviction and the State’s obligation to provide an effective remedy

Chiti v Zambia, UN Doc CCPR/C/105/D/1303/2004 (28 August 2012)

Summary

The UN Human Rights Committee considered an application against the State of Zambia lodged by the applicant, a Zambian national, on behalf of her children and her deceased husband, a former officer with the Zambian military. The Committee found that there had been a violation of articles 2, 7, 14, 17 and 23 of the International Covenant on Civil and Political Rights.

Facts

On 28 October 1997, the applicant’s husband was arrested by the police as a suspect in an attempted coup d’etat and charged with treason. He was detained in fetters and denied food and legal representation. During this period, he was also subject to repeated questioning, beatings with hosepipes, wires and batons, threatened with death and forced to sign statements implicating senior politicians in the alleged coup.

Shortly after her husband’s arrest, soldiers, police officers and security agents forced their way into the flat in which the applicant and her children were living. They took all the family belongings (including important documents like birth and marriage certificates) and dumped them at an unknown destination. The applicant was unable to recover any of these documents. The applicant and her children were victimised, harassed, intimidated and forcibly evicted from homes in which they attempted to seek shelter until they fled Zambia to seek political asylum in Namibia in November 1998.

Subsequently, the applicant's husband's trial suffered unnecessary delays and he was convicted of treason and sentenced to death. While imprisoned, he was diagnosed with prostate cancer and was not provided with the prescribed medication. He was also denied adequate food and a clean environment. The applicant's husband was pardoned by the Zambian President, and he released on humanitarian grounds due to his poor health in June 2004. He died on 18 August 2004.

The claim

The applicant brought claims to the Human Rights Committee that the State Party had violated rights under article 2(3) (State’s obligation to provide an effective remedy), article 7 (prohibition of torture or cruel, inhuman or degrading treatment), article 9(1) (prohibition of arbitrary arrest and detention), article 10(1) (persons deprived of their liberty shall be treated with humanity), article 12(1) (right to liberty and freedom to choose residence), article 14(3)(c),(g) (right to be tried without undue delay and not be compelled to testify against oneself or confess guilt), article 16 (right to recognition under law), article 17(1),(2) (prohibition of and protection against unlawful interference with privacy and family), article 23(1) (protection of the family), article 24(1) (protection of the child) and article 26 (prohibition of discrimination). The Committee considered that there was insufficient evidence in the applicant’s communication to substantiate her claims under articles 9, 12, 16, 24 and 26.

Decision

The decision turned significantly on acts that would constitute a violation of article 7 and the State Party’s obligation under article 2(3) to provide any person whose rights or freedoms are recognised with an effective remedy.

The Committee found that the torture inflicted on the applicant's husband, his poor conditions of detention, the anguish he remained in for years before his death sentence was quashed, and the absence of a prompt, thorough and impartial investigation of the facts, constituted a violation of articles 7 and 2(3). The Committee also considered that the anguish and distress caused by the arrest, torture, poor conditions of the applicant's husband and eviction of the applicant and her children from their home constituted a violation of article 7 with regard to the applicant and her family.

The Committee noted that a violation of article 7 will also affect the interpretation of article 14 in that “the right not to testify against oneself must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt”. As such, the Committee found that it is unacceptable to treat an accused person in a manner that violates article 7 and that the State Party bears the onus of proving that statements made by the accused have been given of their own free will. In this case, the Committee found that there had been a violation of the applicant’s husband’s rights under article 14(3).

The Committee also concluded that the applicant’s illegal eviction and destruction of the family’s personal belongings constituted a violation of articles 17 and 23.

Where there has been a violation of rights under the Covenant, the Committee emphasised that the State Party has an obligation to provide the applicant with an effective remedy. This would involve (a) thorough and effective investigation into the violation; (b) providing the applicant with detailed information on the results of the investigation; (c) prosecuting, trying and punishing those responsible for the violation; (d) appropriate compensation and (e) taking measures to prevent similar violations in the future.

Commentary

Sections 10, 13 and 17 of the Victorian Charter mirror articles 7, 17 and 23 respectively of the Covenant. Other clauses of the Charter might have applied to the applicant’s case, particularly sections 22, 24 and 25, which deal with humane treatment when deprived of liberty, fair hearing and guarantees given to the accused during criminal proceedings respectively.

The prohibition in section 38(1) of the Charter on public authorities acting in a way “that is incompatible with a human right, or in making a decision, to fail to give proper consideration to a human right” does not fully extend to an obligation to provide an effective remedy (unlike article 2(3) of the Covenant). Section 39(1) allows a person in the position of the applicant to “seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful” under the Charter.

The decision is available online at: http://tb.ohchr.org/default.aspx?Symbol=c

Rebecca Koh, Law Graduate, King & Wood Mallesons Human Rights Law Group