human rights group report final

8/22/2019 Human Rights Group Report Final

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INTERNATIONAL COVENANT ON CIVIL

AND POLITICAL RIGHTS

Political Covenant

adopted by the General Assembly of the United

Nations on December 16, 1966

registered ex-officio on March 23, 1976

comprises 167 State parties and 74 signatories

(as of May 2013)

monitored by the Human Rights Committee (a

separate body to the Human Rights Council)
http://www.wikipedia.org/wiki/United_Nations_Human_Rights_Councilhttp://www.wikipedia.org/wiki/United_Nations_Human_Rights_Council


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Human Rights Committee

reviews regular reports of States parties onhow the rights are being implemented.

States must report initially one year afteracceding to the Covenant and then whenever

the Committee requests (usually every fouryears)

examines each report and addresses its

concerns and recommendations to the Stateparty in the form of "concluding observations

meets in Geneva or New York and normallyholds three sessions per year


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Brief History

First Ten Amendments to the Constitution of the

United States / American Bill of Rights

(1789/1791) FrenchDclaration des droits de lhomme et du

citoyen (1789)

- negative rights Universal Declaration of Human Rights


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BACKGROUND

Civil and political rights were one of the first

areas to be addressed by the international rights

treaty regime that was negotiated in the mid-1940s. These are one of the central cores in the

first 19 articles of the Universal Declaration of

Human Rights.


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The Universal Declaration of Human Rightscould not garner the international consensus

necessary to become a binding treaty because it

contained both first-generation civil and political

rights and second-generation economic, social,

and cultural rights; particularly, a division between

developed democratic nations such as the United

States, which emphasized civil and political rights,and socialist or communist nations, which

emphasized economic, social and cultural rights.

PURPOSE/ OBJECTIVE/ PRINCIPLE OF ICCPR


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In order to solve this problem, two binding

Covenants were created instead of one: the

International Covenant on Civil and Political Rightsand the International Covenant on Economic,

Social and Cultural Rights.
http://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rightshttp://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rightshttp://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rightshttp://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rightshttp://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rightshttp://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rightshttp://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rightshttp://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rightshttp://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rightshttp://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rightshttp://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rightshttp://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rightshttp://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rightshttp://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rightshttp://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rightshttp://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rightshttp://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-economic-social-and-cultural-rights


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The ICCPR commits its parties to respect

the civil and political rights of individuals, as

enumerated below:

1. Protection on individuals physical integrity(against things such as execution, torture, and

arbitrary arrest).

2. Procedural fairness in law (rule of law, rights uponarrest, trial, basic conditions must be met when

imprisoned, rights to a lawyer, impartial process in

trial).
http://en.wikipedia.org/wiki/Civil_and_political_rightshttp://en.wikipedia.org/wiki/Civil_and_political_rightshttp://en.wikipedia.org/wiki/Civil_and_political_rightshttp://en.wikipedia.org/wiki/Civil_and_political_rightshttp://en.wikipedia.org/wiki/Civil_and_political_rightshttp://en.wikipedia.org/wiki/Civil_and_political_rightshttp://en.wikipedia.org/wiki/Civil_and_political_rightshttp://en.wikipedia.org/wiki/Civil_and_political_rights


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3. Protection based on gender, religious, racial or

other forms of discrimination.

4.Individual freedom of belief, speech, association,

freedom of press, right to hold assembly.

5. Right to political participation (organize a political

party, vote, voice contempt for current political

authority).


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Though, the Covenant elaborates furtherthe civil & political rights and the freedoms listed

in the Universal Declaration of Human Rights, the

drafters of the treaty did not envisage that these

rights are absolute; both the ICCPR and the

Universal Declaration recognize that these rights

may need to be limited when necessary to

protect certain public interests.


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SALIENT FEATURES

The covenant establishes a Human Rights

Committee of eighteen (18) elected experts who

study reports and individual states efforts to

guarantee the rights and enforces the civil andpolitical rights obligations which are included in

the covenant.


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Optional Protocols of the CovenantFirst Optional Protocol

establishes an individual complaints mechanism,allowing individuals to complain to the Human RightsCommittee about violations of the Covenant

creation of a complex jurisprudence on the

interpretation and implementation of the Covenant. (as of October 2011) had 114 parties

Second Optional Protocol

abolishes the death penalty; however, countries werepermitted to make a reservation allowing for use ofdeath penalty for the most serious crimes of amilitary nature, committed during wartime

(as of December 2010) had 73 parties
http://en.wikipedia.org/wiki/First_Optional_Protocol_to_the_International_Covenant_on_Civil_and_Political_Rightshttp://en.wikipedia.org/wiki/Second_Optional_Protocol_to_the_International_Covenant_on_Civil_and_Political_Rightshttp://en.wikipedia.org/wiki/Second_Optional_Protocol_to_the_International_Covenant_on_Civil_and_Political_Rightshttp://en.wikipedia.org/wiki/Second_Optional_Protocol_to_the_International_Covenant_on_Civil_and_Political_Rightshttp://en.wikipedia.org/wiki/Second_Optional_Protocol_to_the_International_Covenant_on_Civil_and_Political_Rightshttp://en.wikipedia.org/wiki/Second_Optional_Protocol_to_the_International_Covenant_on_Civil_and_Political_Rightshttp://en.wikipedia.org/wiki/Second_Optional_Protocol_to_the_International_Covenant_on_Civil_and_Political_Rightshttp://en.wikipedia.org/wiki/First_Optional_Protocol_to_the_International_Covenant_on_Civil_and_Political_Rightshttp://en.wikipedia.org/wiki/First_Optional_Protocol_to_the_International_Covenant_on_Civil_and_Political_Rightshttp://en.wikipedia.org/wiki/First_Optional_Protocol_to_the_International_Covenant_on_Civil_and_Political_Rightshttp://en.wikipedia.org/wiki/First_Optional_Protocol_to_the_International_Covenant_on_Civil_and_Political_Rightshttp://en.wikipedia.org/wiki/First_Optional_Protocol_to_the_International_Covenant_on_Civil_and_Political_Rights


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CIVIL AND POLITICAL RIGHTS rights which the law will enforce at the

instance of individuals without

discrimination from the enjoyment of theirlives, liberty, and means of happiness


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Civil Rights


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Art. 1. Right of Self-Determination

right to freely determine their politicalstatus and to pursue their economic,

social and cultural development

Art. 6. Right to Life

includes the right to enjoy life

Issues:

Death Penalty

Mercy-Killing

Abortion


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Art. 7. Freedom from Torture, Cruel,Inhuman or Degrading Treatment ofPunishment

Torture any act by which severe pain orsuffering, whether physical or mental, is intentionallyinflicted on a person for such purposes as obtainingfrom him or a third person information or

confession, punishing him for an act he or a thirdperson has committed or is suspected of havingcommitted, or intimidating or coercing him or a thirdperson or for any reason based on discrimination ofany kind, when such pain or suffering is inflicted byor of instigation of or with consent or acquiescencepublic official or other person acting in an officialcapacity.


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Art. 8. Prohibition of Slavery andInvoluntary Servitude

Slavery status or condition of a person overwhom any or all of the powersattaching to the right of ownershipare exercised

Slave a chattel or object which can bedisposed of at the will of the master

Exceptions: 1) criminal punishment

2) military service

3) civil obligations


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Equality Before the Law

prohibits any form of discrimination on any

ground such as race, color, sex, language,

religion, political or other opinion, national or

social origin, property, birth or other status

persons or things similarly situated must be

alike as to the rights conferred and the

liabilities imposed


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Art. 9. Right to Liberty and Security

Arrest taking of a person into custody in orderthat he may be forthcoming to answer for thecommission of an offense

deprivation of liberty must be with legal grounds(with warrant of arrest)

Exceptions:

Inflagrante Delicto

Hot-Pursuit Operation

Fugitive

imposes procedural safeguards around arrestMiranda Doctrine

states the rights of a person under custodialinvestigation


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Art. 14. Right to Justice and Fair Trial

all must be equal before the court

Right of Confrontation

Self-Incrimination

Presumption of Innocence

Right to Bail

Double Jeopardy

Right to Appeal Ones conviction of a crime

Right to Compensation Due to Miscarriageof Justice


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Art. 15. Prohibition against Prosecution under

Ex post facto Law and Retrospective CriminalPenalties

Ex Post Facto Lawstatute which renders

a previously innocent act a criminal offense,aggravates or increases the punishment for a

crime, or alters the rules of evidence, or

deprives an accused of some protection ordefense available


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Individual Liberties

A t 12 F d f M t


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Art. 12. Freedom of Movement

right of the persons (as well as legal aliens) to

choose their residence or to leave a country

Restrictions: interest ofnational security, public

order or health and freedom of others

Asylumgranting of sanctuary by State to

persons politically persecuted in his country

Art. 17. Right of Privacy right to be free from intrusion into certainthoughts and activities which include the

constitutional freedom or unreasonable searches

and seizures, and freedom from self-incrimination


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Art. 18. Freedom of Religion

Art. 19. Freedom of Expression

Art. 23. Right to Marriage

The right of men and women of marriageable

age to marry and found a family shall be

recognized.

Art. 24. Right to a Nationalityright to belong to a State and owe allegiance

to it


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Right to Own Property

not specifically provided in the ICCPR but isiterated in Art. 17 of Universal Declaration of

Human Rights

Everyone has the right to own property aloneas well as in association with others.

private property or some form of ownership

assures a person a highly necessary sphere forhis personal and family autonomy

may not be taken without due process of law


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Political Rightsrights to participate directly or indirectly

in the establishment or administration of

government (Art. 25, ICCPR)


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Freedom of Opinion and Expression

subject to regulations or limitations provided

by lawRight of Access to Information

the Universal Declaration of Human Rights

states that everyone has the right to receiveand impart information and ideas through any

media regardless of frontiers

Right to Peaceful Assembly for the Redress ofGrievances

right of citizens to meet peacefully for

consultation in respect to public issues and to

petition the government for redress of grievance


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Freedom Association

right to form or be a member of an

association

Right to Participate in Government Affairs and

Equal Access to Public Services

Right of Suffrage

right to vote and be voted upon in periodic

elections in order that the will of the people

shall be determined, as the basis of authority

of the government


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INTERNATIONAL CASE

Hak-Chul Shin

vs.

Republic of Korea,

Communication No. 926/2000


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FACTS:

On August 17 1989, author was arrested on awarrant by the Security Command of the National

Police Agency. The painting was seized and allegedlydamaged by careless handling of the prosecutor'soffice. He was indicted for alleged breach of article 7of the National Security Law, in that the pictureconstituted an "enemy-benefiting expression".

Seoul Criminal District Court acquitted theauthor, however, Supreme Court upheld the

prosecutor's appeal holding the lower courtsdecision as an error. The case was then remitted tolower court. Author was convicted and sentenced toprobation, with confiscation of the painting.


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On April 25, 2000, the author filed a complaint

before the UN Committee on Human Rights claiming

violation of his freedom of expression (Art. 19, par. 2,ICCPR).

He contends that the painting depicts his dream of

peaceful unification and democratisation of hiscountry based on his experience of rural life during

childhood; argues that the prosecution, in depicting

the painting as the author's opposition to a corrupt

militaristic south and the desirability of a structural

change towards peaceful, traditionally-based farming

north as an incitement to communisation is beyond

any logical understanding.


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Issue:

Whether or not the freedom of expression of

the author (Hak Chul Shin) guaranteed by Article 19,

paragraph 2 of the protocol was violated byRepublic of Korea.


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Ruling of the Human Rights Committee:

The Committee observes that the picturepainted by the author plainly falls within the

scope of the right of freedom of expression

protected by article 19, paragraph 2; it recallsthat this provision specifically refers to ideas

imparted "in the form of art".


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Article19, par. 2 (ICCPR)

Everyone shall have the right to freedom

of expression; this right shall include freedom to

seek, receive and impart information and ideasof all kinds, regardless of frontiers, either orally,

in writing or in print, in the form of art, or

through any other mediaof his choice.


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Even if the infringement of the author's

right to freedom of expression, through

confiscation of his painting and his convictionfor a criminal offense, was in the application of

the law, the Committee observes that the State

party must demonstrate the necessity of thesemeasures for one of the purposes enumerated

in article 19 (3).

As a consequence, any restriction on that

right must be justified in terms of article 19 (3)

in which the State failed to present.


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In accordance with article 2, paragraph 3 (a),

of the Covenant, the State party is under an

obligation to provide the author with aneffective remedy, including compensation for

his conviction, annulment of his conviction, and

legal costs.

In addition, as the State did not provide any

justifiable grounds in restricting the authors

freedom of expression, it should return the

painting to him in its original condition, bearing

any necessary expenses incurred thereby.


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Article 19, par. 3

The exercise of the rights provided for in

paragraph 2 of this article carries with it specialduties and responsibilities. It may therefore besubject to certain restrictions, but these shallonly be such as are provided by law and are

necessary:(a) For respect of the rights or reputations of

others;

(b) For the protection ofnational security orof public order (order public), or ofpublic health or morals.


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DOMESTIC CASE

Lenido Lumanog and Augusto Santos

(represented by counsels, Soliman M. Santos,

and Cecilia Jimenez)

vs.

The Republic of the Philippines,

Communication No. 1466/2006


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Facts:

Before 2004, criminal convictions by the RTC

imposing death penalty, reclusion perpetua, orlife imprisonment were automatically appealedto the Supreme Court even if the accused did notappeal.

In People vs. Mateo, July 7, 2004, the courtamended its previous procedures regardingconviction of death, reclusion perpetua or life

imprisonment that it would be more appropriateto refer the case to the Court of Appeals. Thus, alldeath penalty cases pending while the Mateojudgment was passed would be transferred to the

Court of Appeals.


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On the positive identification of thewitnesses, petitioners were convicted of the

murder and were sentenced to death for killingthe former Chief of the Philippine NationalPolice (PNP), Colonel Rolando N. Abadilla(Abadilla), who was ambushed in broad

daylight while driving his car along KatipunanAvenue, Quezon City. After their motions forreconsideration and new trial were rejected bythe RTC in January 2000, the case was

transmitted to the Supreme Court in February2000 for automatic review (appeal) of thedeath penalty.


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The authors filed a Consolidated Motion for

Early Decisions but were subsequently denied by

the Supreme Court for lack of merit. The reviewof the case has been pending before the Court of

Appeals since January 2005.

On March 6, 2006, petitioners, submitted apetition before the UN alleging that the State

violated their rights as provided by Articles 6,

par. 1; 9 par. 1; 14, par 1, 3(c) and 5; and 26 of

the Covenant. They claimed that their rights

were violated as they have been in detention

since June 1996 and yet their cases were not yet

resolved.

A ti l 14


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Article 14

1. All persons shall be equal before the courts andtribunals. In the determination of any criminalcharge against him, or of his rights andobligations in a suit at law, everyone shall be

entitled to a fair and public hearing by acompetent, independent and impartial tribunalestablished by law.

3. In the determination of any criminal charge

against him, everyone shall be entitled to thefollowing minimum guarantees, in full equality:

(c) To be tried without undue delay;


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5. Everyone convicted of a crime shall have the

right to his conviction and sentence being

reviewed by a higher tribunal according to law.


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Issue:

Whether or not the right of authors as provided

by Articles 6, par. 1; 9 par. 1; 14, par 1, 3(c) and 5; and26 of the Covenant were violated by the State party.


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Ruling: (Human Rights Committee)

The Committee decides that the communicationis admissible in the issues underarticle 6,

paragraph 1, and article 14, paragraph 3(c) of the

Covenant. With respect to a possible violation ofarticle 6, paragraph 1, the Committee considers

that this claim has been rendered moot after the

abolition by the Philippine Congress of the death

penalty in July 2006.

h


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In relation to the authors claim under article 14,paragraph 3 (c), it may be noted that the right of theaccused to be tried without undue delay relates not

only to the time between the formal charging of theaccused and the time by which a trial shouldcommence, but also the time until the final

judgment on appeal. All stages whether at first

instance or on appeal, must be completed withoutundue delay.

The Committee recalls that the right of the

accused to be tried without undue delay is not onlyto ensure that such deprivation of liberty does notlast longer than necessary in the circumstances ofthe specific case, but also to serve the interests of

justice.

It i t d th t th d i ti


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It is noted that the accused were in continuousdetention since 1996 and their conviction, dated30 July 1999, had been pending for review before

the Supreme Court for 5 years before beingtransferred to the Court of Appeals on January18, 2005. To date, the authors case has not beenheard.

There is no justification for the delay in thedisposal of the appeal, more than eight yearshaving passed without the authors convictionand sentence been reviewed by a higher tribunal.

Accordingly, the Committee finds that the authorsrights under article 14, paragraph 3 (c) of theCovenant, have been violated.


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In accordance with article 2, paragraph 3

(a), of the Covenant, the State party is under

an obligation to provide the authors with aneffective remedy, including the prompt review

of their appeal before the Court of Appeals

and compensation for the undue delay. In thisrespect, the Committee wishes to receive from

the State party, within 180 days, information

about the measures taken to give effect to the

Committees Views. The State party is also

requested to publish the Committees Views.


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