CCPR/C/116/D/2060/2011
concerning those charges. In the light of the right to be presumed innocent enshrined in
article 14 (2), the fact that the author was charged with assault against his wife should not
be considered by the Committee in deciding the case. Regarding article 14 (3) (c), it is
argued that the author’s removal to Zimbabwe has caused an undue delay in the
proceedings in which he was charged with assault. He was unable to defend himself and to
appear in court in person.
5.7
Regarding the author’s claims under articles 17 and 23 (1), it is argued that the State
party relied heavily on the charges of assault against the author, in which the alleged victim
is his wife. However, at the time the author’s comments were submitted to the Committee,
he had not been convicted of any new criminal offence. It is further claimed that the State
party did not have a relevant State’s interest in the author’s deportation since he had not
been convicted of a violent offence and that, on the other hand, owing to the permanent
nature of the measure, the author’s family would be dramatically affected.16 Therefore, the
author’s deportation should be considered a disproportionate measure, in particular owing
to the fact that he will be permanently separated from his children and wife and that he has
no close relatives or strong ties in Zimbabwe. In Zimbabwe he will not be able to keep a
close relationship with his children, owing to practical obstacles such as the poor quality of
telephone and Internet services and high telephone fees. In addition, in the light of his
wife’s and daughter’s need for HIV treatment, the fact that five of his children attend
school in Canada, the cost of a family visit to Zimbabwe and the political situation in
Zimbabwe, it would be unlikely that the family could visit him in Zimbabwe.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claims contained in a communication, the Committee must
decide, in accordance with rule 93 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
6.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under any other procedure of
international investigation or settlement.
6.3
With regard to the author’s claim under article 2 (3) of the Covenant regarding the
decision to remove him to Zimbabwe, the Committee recalls that this provision cannot be
invoked independently17 and therefore considers this part of the communication to be
inadmissible ratione materiae under article 3 of the Optional Protocol.
6.4
The Committee takes note of the author’s allegations under article 14 (1), (2) and (3)
(c) of the Covenant. The Committee considers, however, that these allegations were
submitted to it at a late stage in the proceedings and are unrelated to the claims which
constitute the main gist of the communication, and are unsubstantiated. Accordingly, the
Committee finds these allegations inadmissible under article 2 of the Optional Protocol.
6.5
The Committee takes note of the State party’s argument that the author has failed to
exhaust domestic remedies regarding his claims, under articles 6 (1) and 7 of the Covenant,
that he would be at risk of persecution if deported to Zimbabwe owing to his alleged
political activities in Canada and his status as a failed asylum seeker, since he failed to file
16
17
The author provides a letter issued by the Hospital for Sick Children in Toronto.
See communications No.2284/2013, F.M. v. Canada, Views adopted on 5 November 2015, para. 8.4;
No. 2176/2012, M. v. Belgium, decision of inadmissibility adopted on 30 March 2015, para. 6.5; and
No. 1544/2007, Hamida v. Canada, Views adopted on 18 March 2010, para. 7.3.
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