CCPR/C/113/D/2091/2011 Appendix II Individual opinion of Committee member Yuval Shany (concurring) 1. While I find myself in agreement with the outcome and the reasoning provided in the Committee’s Views, I wish to expand on two dimensions of the decision, which I believe that the Committee could have further elaborated on when formulating its Views. 2. In paragraph 10.4 of the Views, the Committee enumerates the various considerations it deemed relevant for assessing the compatibility with article 7 of the Covenant of the treatment of the author by the State party. These include, on the one hand, the State party’s legitimate interest in protecting the general public and, on the other hand, the personal circumstances of the author — a mentally ill person who had lived in Canada for over 30 years, who was dependent on medical and family support available to him in Canada and whose criminal conduct was attributable to his mental illness. I am of the view that such a weighing of competing interests implies that the decision to deport the author was, under the circumstances of the case, an unreasonable or disproportionate reaction on the part of the State party to the threat that the author posed. This conclusion is further supported in my eyes by the real possibility, which the Canadian authorities did not negate, that the voluntary treatment available to the author in Canada — a community mental health programme, oral medication and supervision of his condition by his niece — would succeed in reducing and even eliminating the threat he posed to society. 3. The general point which I wish to elaborate on pertains to the relationship between article 7 and proportionality analysis. It is well established that article 7 of the Covenant is absolute in nature, in the sense that treatment or punishment which is per se deemed to be cruel, inhuman or degrading, or tantamount to torture, can never be justified.a Still, there exists a second category of article 7 violations: contextual violations. Thus, a form of treatment or punishment which does not violate article 7 per se, but under the ruling circumstances represents a disproportionate response to the need to respect or ensure the rights of others or to protect the general interest of the public may also be deemed contrary to article 7, precisely for its disproportionate nature. For example, punishment which is not cruel, inhuman or degrading per se may fall under article 7 if it is excessive in the ruling circumstances,b and the use of force by the police, which can be justified in certain circumstances, may be viewed as contrary to article 7 under circumstances in which the force used is deemed excessive.c Put differently, the absolute nature of article 7 appertains primarily to treatment and punishment which is unjustifiable per se and thus cannot be subject to external balancing of interests designed to justify cruel, inhuman or degrading treatment or punishment. At the same time, article 7 does not preclude resort in other cases to internal balancing of interests designed to determine whether treatment or punishment which can be justified under certain circumstances (and is therefore not unjustifiable per se) constitutes cruel, inhuman or degrading treatment or punishment under other specific circumstances. Still, once the disproportionate treatment or punishment has been determined to be contrary to article 7, it cannot be justified on the basis of any external reason and is in some sense also absolute in nature. For instance, excessive use of force a b c 18 See, for example, the Committee’s general comment No. 20 (1992) on the prohibition of torture or cruel, inhuman or degrading treatment or punishment, para. 3. See, for example, the Committee’s general comment No. 20 (note a above), para. 5, and Gatt v. Malta, judgement of the European Court of Human Rights of 27 July 2010, para. 29. See, for example, the Committee’s concluding observations on the fifth periodic report of Australia (CCPR/C/AUS/CO/5), para. 21, and Rehbock v. Slovenia, judgment of the European Court of Human Rights of 28 November 2000, paras. 76–78.