Cases violating ICCPR art 2(3) (potential) (4)

Note that committees can record actual or potential violations.

Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

ICCPR art 2(3)

A v Australia (HRC, 1997)

Remedy's assessment: Unremedied

A Cambodian man known as ‘A’ arrived in Australia by boat in 1989 with his wife and children. The family was detained for more than four years until the success of Mrs A’s refugee claim. The HRC found that Australia’s system of ‘indefinite and prolonged’ mandatory detention constitutes arbitrary detention. The family’s right to have their detention reviewed by a court, and their right to an effective remedy, were also violated. Australia rejected the Committee’s interpretation of the ICCPR and refused to compensate the A family.

Read more on A v Australia.

Faure v Australia (HRC, 2005)

Remedy's assessment: Unremedied

A woman claimed the ‘Work for the Dole’ scheme, whereby welfare payments were made conditional on participation in labour programmes, constituted compulsory labour. The HRC did not agree on that point, but did find that, in failing to provide a general domestic mechanism by which to ‘test an arguable claim under … the Covenant’, Australia had violated Ms Faure’s right to remedy. The Committee held that ‘its Views on the merits of the claim constitute[d] sufficient remedy’ in this instance, but that Australia ought to ensure that, in future, ‘an effective and enforceable remedy’ is available to all within its jurisdiction for any violation of the ICCPR. Australia has not introduced such a remedy.

Read more on Faure v Australia.

Horvath v Australia (HRC, 2014)

Remedy's assessment: Partially remedied

In 1996, 21-year-old Corinna Horvath was assaulted by police during an unlawful raid on her home. Her nose was broken and she was hospitalised for 5 days. Despite her case reaching the High Court of Australia, Ms Horvath has still not received the compensation awarded to her by the County Court when it first heard the case in 2001.  Further, none of the police involved has been disciplined or prosecuted for what the Court found to be trespass, assault, unlawful arrest and false imprisonment. Ms Horvath seeks compensation and effective discipline of the police officers involved. In 2014, the UN Human Rights Committee found that her right to an effective remedy has been violated and recommended legislative reform and compensation.

Read more on Horvath v Australia.

Shams et al v Australia (HRC, 2007)

Remedy's assessment: Unremedied

Eight unrelated young men from Iran, fearing persecution for a range of reasons, arrived in Australia and were detained. Each submitted a communication to the HRC, containing similar allegations concerning their treatment in detention and their fear of refoulement. Australia responded to all 8 cases together, and the HRC did the same, hence 8 independent communications became Shams et al. The Committee found that all had suffered arbitrary detention in excess of four years, had been denied habeas corpus and the right to remedy and that each should be compensated. Seven were ultimately found by Australia to be refugees, while the 8th was given a humanitarian visa. They have not been compensated.

Read more on Shams et al v Australia.