CCPR/C/115/D/2005/2010
responsibility of a foreign State (the United States in this case) for committing torture exists
independently of any duty on a second State to investigate acts of foreign torture where a
victim is present in its territory. The meaning of article 7 of the Covenant is interpreted
more extensively than its literal terms by the Committee. For instance, the article
encompasses a duty of non-refoulement even though there are no words to that effect. The
provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, which share the common purpose of eliminating torture, can
inform the interpretation of article 7. The preamble of the Convention specifically
references article 7, demonstrating the linkage between the two treaties as part of an
integrated human rights treaty system.
(h)
Claims under articles 12, 14, 17, 19 and 22 regarding the imposition of a control order
State party’s observations
74.
Regarding the author’s claims on the imposition of a control order, the author
alleges that he could not test adequately the evidence brought by the Australian Federal
Police and upon which the order was issued because, under the Criminal Code Act, no
disclosure of information is required if it is likely to prejudice national security. However,
the author does not explain how the relevant provisions of the Code were applied in his
case and how that application violated his right to a fair trial. The Australian Federal Police
did not rely on such provisions to exclude information from documents it was required to
otherwise provide the author or to prepare for other purposes in relation to the control order
process. There is no reference to the Code in the judgements regarding the control order.
The author states that the evidence adduced by the Australian Federal Police appeared to be
based solely upon interviews conducted while he was at Guantanamo Bay. However, the
Australian Federal Police adduced other evidence, which included letters written by him to
his family from Pakistan and Afghanistan and other material seized under a lawfully
executed search warrant in Australia. That evidence was also made available to the author.
Furthermore, in his judgement confirming the control order, the Federal Magistrate
identified the material to which he had regard in considering the matter and based his
decision on evidence that had been made public. The author was invited to present
evidence, but he declined, as noted by the Magistrate in his judgement.
75.
That element of the fair hearing ground invites the Committee to conduct a review
of legislation in the abstract (actio popularis) of the provisions of the National Security
Information (Criminal and Civil Proceedings) Act and related provisions of the Criminal
Code. This is inadmissible under article 1 of the Optional Protocol, because the legislation
in question did not affect the author’s rights under the Covenant.
76.
The author’s allegation that the Magistrate erred in his evaluation of the evidence
presented by the Australian Federal Police is inadmissible under article 2 of the Optional
Protocol. The author does not show that the court’s evaluation was clearly arbitrary or
amounted to a manifest error or denial of justice or that the court otherwise violated its
obligation of independence and impartiality. He does not contend that the Federal
Magistrate’s evaluation of the evidence demonstrated a lack of independence or
impartiality. Furthermore, he did not ask the Magistrate to rule on the admissibility of the
evidence of the Australian Federal Police and its reliability.
77.
As for the necessity for the restrictions placed on him, the author contends that the
definition of “terrorist act” in the Criminal Code is broad and vague and does not satisfy the
principle of legality. However, the author does not link that principle to any article in the
Covenant. Furthermore, the elements of the principle of legality embodied in article 15 are
only applicable in cases involving criminal offences, while the control order proceedings
were civil. Accordingly, that element should be found inadmissible ratione materiae.
28
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