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Recognition as a Person before the Law

 

a rticle 16 of the Covenant provides that every person ‘shall have the right to recognition everywhere as a person before the law’. a longside an allegation of discrimination, the authors in Joslin v New Zealand argued that article 16 was aimed at permitting persons to assert their essential dignity, through their recognition as proper subjects of law, both as individuals and as members of a couple. By preventing them, as a same-sex couple, from acquiring the legal attributes and advantages flowing from marriage, including advantages in the law of adoption, succession, matrimonial property, family protection and evidence,

 

124 ibid, para 6.3.

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the authors claimed that the Marriage a ct deprived them of access to a significant institution through which individuals acquire and exercise legal personality. Given the existence of article 23(2) (the right to marriage), however, the Committee considered that any claim alleging violation of article 16 must be considered in the light of article 23. By application of the particular wording of article 23(2), the Committee concluded that the mere refusal to provide for marriage between homosexual couples was not a breach of the rights of the authors under articles 16, 17, 23 or 26 of the iCCPR.126 it is unfortunate that the Committee did not give a more particular consideration of the authors’ argument pertaining to article 16, although it should be noted that the views in Joslin are a typical example of most communications in which violation of article 16 is pleaded, but where the substance of the complaint is dealt with by the Committee within the context of other more explicit provisions.127it is common, also, that many claims invoking article 16 do so without presenting specific reasons as to why the right to recognition before the law has been violated.128

The author in Werenbeck v Australia claimed that his sentence of 13 years and four months’ imprisonment contradicted the recognition of him as a person of equality before the law. He explained that, in 1991, the Court acquitted a l ebanese citizen, who was arrested at the airport with two kilograms of heroin concealed in a bag. The author contended that the circumstances in that case and his own were similar. The Committee took the view, however, that each criminal case must be examined on its own merits and that the acquittal of one accused and the conviction of another do not as such raise issues of recognition as a person before the law.129a successful claim of violation of article 16 was made in Kimouche v Algeria, where the question before the Committee was whether and in what circumstances an enforced disappearance could constitute a refusal to recognize the victim as a person before the law. The Committee accepted that intentionally removing a person from the protection of the law for a prolonged period of time may constitute a refusal to recognize that person before the law if the victim was in the hands of the State authorities when last seen and, at the same time, if the efforts of his or her relatives to obtain access to potentially effective remedies have been



 

126 Joslin v New Zealand, Communication 902/1999, UN Doc CCPR/C/75/ D/902/1999 (2002), para 8.2.

127 See also, by way of example: HS v France, Communication 184/1984, UN Doc CCPR/C/27/D/184/1984 (1986); Avellanal v Peru, Communication 202/1986, UN Doc CCPR/C/34/D/202/1986 (1988); Polay v Peru, Communication 577/1994, UN Doc CCPR/ C/61/D/577/1994 (1998); and Aber v Algeria, Communication 1439/2005, UN Doc CCPR/ C/90/D/1439/2005 (2007), para 7.9.

128 See, for example: Tulyaganov v Uzbekistan, Communication 1041/2001, UN Doc CCPR/C/90/D/1041/2001 (2007), para 7.5; Chikunova v Uzbekistan, Communication 1043/2002, UN Doc CCPR/C/89/D/1043/2002 (2007), para 6.3; and Tcholatch v Canada, Communication 1052/2002, UN Doc CCPR/C/89/D/1052/2002 (2007), para 3.7.

129 Werenbeck v Australia, Communication 579/1994, UN Doc CCPR/C/59/ D/5E7BS9C/O19Pu9b4lis(h1i9ng97:)e,BpooakraAc9ad.9em.ic Collection (EBSCOhost) - printed on 3/11/2014 5:52 PM via UTICA


systematically impeded. in such situations, disappeared persons are in practice deprived of their capacity to exercise entitlements under law, including all of their other rights under the Covenant, and of access to any possible remedy as a direct consequence of the actions of the State, which the Committee concluded must be interpreted as a refusal to recognize such victims as persons before the law. it found, on the facts before it, that a lgeria had violated article 16.130

 

 


Date: 2015-02-28; view: 1228


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