CCPR/C/113/D/2091/2011
Appendix III
[Original: Spanish]
Individual opinion of Committee member Víctor Manuel RodríguezRescia (partly dissenting)
1.
This opinion concurs with the Committee’s Views on communication
No. 2091/2011 in finding a violation of the rights set forth in article 7 of the Covenant.
2.
However, as a result of studying the situation of the author as a whole — his mental
disability and the effects of his deportation to Jamaica without the State party’s having
analysed this case according to the principle of reasonable accommodation set forth in
article 2 of the Convention on the Rights of Persons with Disabilities — I believe that the
Committee should have considered this circumstance in the framework of article 26 of the
Covenant, even though the author has not invoked that provision. As I have stated in
various separate opinions, I am of the view that the Committee should apply the iura novit
curia principle, especially when dealing with situations in which States should promote and
defend the rights of vulnerable persons.
3.
Similarly, I do not agree with the Committee’s decision in paragraph 10.5 “not to
examine separately the author’s claims under articles 17 and 23, read alone and in
conjunction with article 2 (3) of the Covenant”. The Committee’s practice of avoiding
analysis of articles invoked by authors because it has already identified a violation of some
other article strikes me as not in keeping with the comprehensive analysis that should
characterize a communication in general, let alone when the author’s vulnerability demands
that reasonable accommodation be made. I do not think “economy of procedure” can justify
this practice. In this particular case, the author’s Canada-based family, in particular his
niece and litigation guardian, shows a marked interest in keeping him from being sent to
Jamaica. According to the jurisprudence of the Committee (Dauphin v. Canada and
Warsame v. Canada), the definition of family should be sufficiently broad to support the
conclusion that his sisters and niece in Canada, to whom he has had close family ties, and
from whom he has received support for 31 years, should be deemed family for the purposes
of articles 17 and 23. Therefore, the Committee should have found that the author’s
expulsion under the terms in which it took place constitutes arbitrary encroachment by the
State on the protection of privacy and the family, beyond the limits of reasonableness
required in a case such as this one: there were mitigating circumstances to the crimes
committed by the author, because his criminal acts were related to his mental illness; what
is more, if the State and the family provide community and family support, the author could
have a better quality of life with medical and psychiatric treatment that takes due account of
all his human rights, with a focus on affirmative action on account of his disability.
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