CCPR/C/114/D/2234/2013 Appendix II Individual opinion of Committee members Sarah Cleveland and Olivier de Frouville (concurring) 1. The Committee finds that the conduct of State agents in this communication violated, among other provisions, article 26 on prohibition of discrimination on the basis of sex. We agree with this conclusion and write separately to elaborate on the reasoning supporting it. 2. Article 26 guarantees equal protection before the law and prohibits any distinction “based on” an enumerated ground such as sex or political opinion, unless the distinction serves a legitimate aim and is based on reasonable and objective criteria.1 In the context of sex discrimination, the Committee has repeatedly applied this standard to find invalid legislation that distinguishes between men and women. 2 Article 26, however, is concerned not only with discrimination on the face of the law, but also with “discrimination in fact” against a particular individual, whether practiced by public authorities or private persons. 3 The Committee thus has recognized that article 26 is also violated when State agents treat particular individuals differently based on the prohibited grounds, absent a legitimate aim or reasonable and objective criteria. In this regard, the Committee recently found that a State’s failure to adequately take account of a particular individual’s disability in the application of its naturalization laws violated article 26.4 In other cases the Committee has found that differential treatment of particular individuals based on their political opinion violated article 26.5 In the context of sex discrimination, the Committee has found that the conduct of police, medical and judicial personnel aimed at casting doubt on the morality of an indigenous minor girl who was the victim of rape constituted discrimination based on gender and ethnicity in violation of article 26. 6 The Committee has also held that a State’s failure to provide a judicial remedy for the refusal of medical officials to provide a legally available abortion violated article 2 (3) in relation to articles 3, 7 and 17.7 3. The author here presents compelling evidence that she was subjected to, inter alia, both gang rape and forced sterilization through the non-consensual removal of her uterus by 1 2 3 4 5 6 7 18 See general comment No. 18 (1989) on non-discrimination, para. 13, and communication No. 2001/2010, Q v. Denmark, Views adopted on 1 April 2015, para. 7.3. See communications No. 919/2000, Müller and Engelhard v. Namibia, Views adopted on 26 March 2002, para. 6.8, and No. 415/1990, Pauger v. Austria, Views adopted on 26 March 1992, para. 7.4. See general comment No. 18, para. 9. See communication No. 2001/2010, Q v. Denmark, para. 7.5. See communication No. 309/1998, Orihuela Valenzuela v. Peru, Views adopted on 14 July 1993, para. 6.4 (denial of pension benefits based on author’s political opinion violated article 26); No. 314/1988, Chiiko Bwalya v. Zambia, Views adopted on 14 July 1993, para. 6.7 (interference with efforts to stand for political office because of author’s political opinion violated article 26); No. 468/1991, Oló Bahamonde v. Equatorial Guinea, Views adopted on 20 October 1993, para. 9.5 (arbitrary arrest, confiscation of passport, and other harassment of author because of his political opinion violated article 26). See communication No. 1610/2007, L.N.P. v. Argentina, 18 July 2011, para. 13.3; also ibid. para. 13.8 (lack of effective remedy to rape victim violated article 2 (3) in conjunction with articles 3, 7, 14 (1), 17, 24 and 26); see communication No. 1900/2009, Mehalli v. Algeria, Views adopted on 21 March 2014, para. 7.10 (finding rape by State agents “a form of extreme gender-based violence” in the context of article 7). See communication No. 1608/2007, L.M.R. v. Argentina, Views adopted on 29 March 2011, para. 9.4.