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1.1 The author of the
communication is Chanderballi Mahabir, a citizen of Trinidad and Tobago,
born in 1964. He does not invoke any specific provision of the Covenant.
However, the communication appears to raise issues under articles 8, 10, 17
and 26 [FN1] of the International Covenant on Civil and Political Rights
(the Covenant). He is not represented by counsel.
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[FN1] Upon ratification of the Covenant, the State party entered the
following reservation in relation to article 26 of the Covenant: "Article 26
is understood to mean that it does not exclude different treatment of
Austrian nationals and aliens, as is also permissible under article 1,
paragraph 2, of the International Convention on the Elimination of All Forms
of Racial Discrimination."
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1.2 The Covenant and the Optional Protocol entered into force for the State
party on 10 December 1978 and 10 March 1988, respectively. Upon ratification
of the Optional Protocol, the State party entered the following reservation
to article 5, paragraph 2 (a): "On the understanding that, further to the
provisions of article 5 (2) of the Protocol, the Committee provided for in
Article 28 of the Covenant shall not consider any communication from an
individual unless it has been ascertained that the same matter has not been
examined by the European Commission on Human Rights established by the
European Convention for the Protection of Human Rights and Fundamental
Freedoms."
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 By judgment of 27 September 1993, the Regional Criminal Court of Graz
convicted the author of several drug-related and other offences and
sentenced him to nine years and eight months' imprisonment. The author
served this sentence in different correctional facilities in Graz. On 11 May
1994 and 2 September 1995, he tried to escape from prison. He was released
on 3 August 2001 and immediately deported to Port of Spain, Trinidad and
Tobago.
2.2 While serving his prison term, the author was required to perform work,
[FN2] receiving an hourly salary of 51.40 Austrian Schillings (ATS). In
accordance with Section 32, paragraph 2, of the Enforcement of Sentences
Act, 75 percent of the author's remuneration was deducted to cover his
prison expenses. As an example, after a further deduction of 376.80 ATS for
unemployment contributions, he received a net salary of 1.892.00 ATS (out of
his gross earnings of 8.840.80 ATS) for 172 working hours in October 1998.
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[FN2] See Section 44 of the Federal Act on the Enforcement of Prison
Sentences and Preventive Measures in Connection with Imprisonment of 1969
(Enforcement of Sentences Act): "(1) Every prisoner who is physically able
to work has the obligation to work. (2) Prisoners obligated to work shall
perform the work assigned to them. Prisoners shall not be assigned work that
entails life risks or danger of serious damage to their health."
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2.3 On 3 March 1997, the author requested permission to purchase a personal
computer (PC) for study purposes. The prison authorities granted his request
on 13 March 1997, since the author had completed a computer course and had
shown good conduct and work performance. The authorities withdrew the
author's permission to use a private PC and confiscated his computer,
because he did not work in November 1997. His request of 5 November 1997 to
have his computer returned was rejected three weeks later, on the ground
that good work performance was a requirement for enjoying the privilege of
using a private PC. [FN3] After another request had been denied on 16
December 1997 for identical reasons, the author, by letter of 25 February
1998, complained to the Ministry of Justice, claiming that the denial of
access to his computer had exceeded the maximum permissible period of three
months (Section 111 of the Enforcement of Sentences Act).
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[FN3] See Section 24 of the Enforcement of Sentences Act: "(1) A prisoner
who shows his cooperation in achieving the purposes of his sentence, shall
upon his request be granted appropriate privileges. [...] (4) If a prisoner
abuses the privileges granted to him or if the conditions on which they were
granted subsequently cease to exist, the privileges shall be restricted or
withdrawn."
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2.4 On 27 July and 10 August 1998, the author requested permission to
receive food parcels from his family every three months. Permission was
denied in both cases, on the basis that the author served a drug-related
sentence and was therefore precluded from receiving food parcels. On 17
September 1998, the author complained to the prison warden and, on 5 October
1998, to the Ministry of Justice, which rejected his complaint on 9 October.
On 19 October, the author informed the United Nations and Amnesty
International of these decisions, arguing that they amounted to racial
discrimination, since other prisoners who were also serving sentences for
drug-related offences could receive food parcels from their families and
friends.
2.5 On 30 March 1999, the author complained to the Ministry of Justice,
claiming violations of his rights as a prisoner, since a parcel with
clothing from his aunt had been opened by the duty officer in his absence
and without his signature, been re-sealed and returned to the sender.
Although a prison social worker promised him that future parcels for him
would be accepted, another package was again opened and returned to the
sender soon thereafter. By letter of 5 April 1999, the author informed the
Ministry of Justice that a social worker had told him that one of the prison
guards, Major W., had expressed the intention of barring the author from the
receipt of any parcels, should he refuse to withdraw his complaint to the
Ministry of Justice.
2.6 On 10 May 1999, the prison authorities rejected the author's request to
make his monthly telephone call to a family member, arguing that he had
already made a call on 21 April 1999. The prison administration did not
react to the author's clarification, on 16 May, that his request was for May
rather than April.
2.7 In May 1999, the author bought a printer, but was not given any
cartridges for this printer, although the purchase of cartridges had
allegedly been authorized. When another request to collect the cartridges
was denied on 20 May 1999, on the ground that the author had based his
request on false information, he complained to the Ministry of Justice,
alleging racial discrimination since two other prisoners, P.B. and H.S., had
obtained cartridges. Meanwhile, the prison authorities again confiscated the
author's PC.
2.8 On 18 May 1999, the author filed an application with the European Court
of Human Rights, in which he complained about the above events. By decision
of 19 November 1999, a Committee of three judges dismissed the application,
in accordance with article 35, paragraph 4, of the European Convention,
finding that the matters complained of "do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols." [FN4]
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[FN4] European Court of Human Rights, Decision on admissibility of
Application no. 51187/99 (Chanderballi Mahabir against Austria), 19 November
1999.
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THE COMPLAINT
3.1 The author claims that his unequal treatment in prison amounts to racial
discrimination, on the basis that he is black and a foreigner. He also
submits that the fact that he was forced to work to pay for his prison
expenses, and that such work was a prerequisite for his computer to be
returned, constitutes a modern form of slavery.
3.2 The author emphasizes that, while prison regulations allow inmates to
receive underwear from home, as well as four food parcels per year, he was
denied that right, unlike other prisoners also serving drug-related
sentences. He argues that he was denied the possibility to make phone calls
during the last three months before writing to the Committee.
3.3 The author criticizes that the deduction of unemployment contributions
from the remuneration for his prison work by pointing out that, while
Austrian prisoners were able to "reclaim this money" after serving their
sentence, no such possibility existed for foreigners who leave the country
after the end of their prison term.
3.4 The author claims that he was granted hearings with two prison officers
in August 1996, but these meetings did not take place. Similarly, the only
reaction from the Ministry of Justice to his complaints was to advise the
author to settle his problems with the prison authorities directly.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
4.1 On 23 February 2001, the State party challenged the admissibility of the
communication, arguing that the author failed to exhaust domestic remedies,
that the same matter has been examined by the European Court of Human
Rights, and that it was not clear from the communication which of the
author's Covenant rights were considered to have been violated.
4.2 The State party submits that, pursuant to Sections 120 and 121 [FN5] of
the Enforcement of Sentences Act, the decisions of prison staff were subject
to review by the prison superintendent and to further complaint to the
superior penal authority or, as the case may be, by the Federal Ministry of
Justice. Under Articles 140 and 144 of the Federal Constitution, the author
could have challenged the pertinent provisions of the Enforcement of
Sentences Act for the receipt of parcels, telephone calls or the compulsory
contributions to the unemployment scheme before the Federal Constitutional
Court, e.g. by invoking the constitutional prohibition of discrimination or
his right to property. [FN6] As the author failed to avail himself of these
remedies, the State party concludes that the communication is inadmissible
under article 5, paragraph 2 (b), of the Optional Protocol.
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[FN5] Section 121, paragraph 4, of the Enforcement of Sentences Act reads:
"Unless a complaint concerns the prison governor, he or his deputy shall
inform the prisoner about the decision taken on the complaint. At the same
time, the prisoner shall be informed about the possibility of filing a
further complaint. Upon written request, the prisoner shall also be issued a
written copy of the decision."
[FN6] Article 1 of Protocol No. 1 to the European Convention read in
conjunction with article 14 of the European Convention.
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4.3 The State party argues that the communication is also inadmissible under
article 5, paragraph 2 (a), of the Optional Protocol, because the author had
already filed an application with the European Court.
4.4 Lastly, the State party argues that the communication contains
insufficient information about the alleged violations of the author's
Covenant rights, about possible steps taken by him to exhaust domestic
remedies, and about the fact that the same matter was being examined by
another procedure of international investigation or settlement.
AUTHOR'S COMMENTS AND ADDITIONAL INFORMATION
5.1 On 22 May 2001, the author commented on the State party's admissibility
submission, maintaining his arguments and stating that his "refusal" to
exhaust domestic remedies was justified in the light of the material
submitted by him.
5.2 On 4 June 2001, the author submitted additional information, documenting
the prison authorities' decision of 29 March 2001 to reject his repeated
requests for return of his PC, although his application to the European
Court was stored on this computer; the dismissal of the author's complaint
to the prison governor, as well as of his further complaint of 30 April 2001
to the Ministry of the Interior. In the latter, he claimed that he had been
confined to his cell for 23 hours a day since 30 November 2000, allegedly
because he was considered "a troublemaker".
THE STATE PARTY'S ADDITIONAL OBSERVATIONS ON ADMISSIBILITY AND ON THE MERITS
6.1 On 22 October 2003, the State party made additional submissions on the
admissibility and, subsidiarily, the merits. It reiterates that the author
did not exhaust domestic remedies, given that he himself mentioned his
"refusal to exhaust all domestic remedies" in his submission dated 22 May
2001.
6.2 The State party invokes its reservation to article 5, paragraph (a), of
the Optional Protocol, arguing that the same matter was already examined by
the European Court of Human Rights. Although the reservation explicitly only
referred to matters which have already been examined by the European
Commission of Human Rights, it was clear from the Committee's jurisprudence
that the reservation also applied to cases in which the European Court has
previously examined the same matter. The European Court "examined" the
matter, when declaring the application inadmissible under article 35,
paragraph 4, of the European Convention, on the ground that the author's
complaints "do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols." The Court therefore
based its decision not solely on procedural grounds, but on a substantive
assessment of the author's claims.
6.3 For the State party, the communication is also inadmissible under
articles 2 and 3 of the Optional Protocol, as the author did not
substantiate his sweeping allegations and because some of his claims are
incompatible ratione materiae with the provisions of the Covenant. Thus, his
obligation to work in prison, which primarily served the rehabilitation of
prisoners by preparing them for the labour market rather than the recovery
of prison expenses, was not covered by the notion of "forced or compulsory
labour", pursuant to article 8, paragraph 3 (c) (i), of the Covenant.
Similarly, the use of a personal computer in prison is not covered by
article 10 of the Covenant, which aims at the protection of the basic needs
of prisoners, such as food, clothing, medical supply, regular exercise etc.,
all of which were satisfied in the author's case.
6.4 On the merits, the State party submits that the enforcement measures
complained of did not constitute discrimination, as they were justified by
objective criteria. As for the confiscation of the author's PC, this measure
was justified by his failure to report for work. Following the theft of meat
from the prison butchery, where the author had worked until 29 October 1997,
he was placed under strict house arrest and his privilege to use a computer
was withdrawn until after he had started to work again in February 1998.
Following further incidents, involving the insult of a prison officer, on 30
November 2000, as well as his refusal, on 23 and 30 January 2001, to move to
another cell assigned to him, the author was subjected to strict house
arrest for a period of 12 days in December 2000 and for two periods of seven
and eight days in early 2001 without specifying the particular dates. He did
not perform work during the period from 5 December 2000 to 21 May 2001 and
his computer was not returned to him until his release from prison on 3
August 2001.
6.5 The State party submits that the author was treated in compliance with
the minimum standard required by article 10 of the Covenant, as his basic
needs, including food, clothes, medical supply, sanitary hygiene, light
heating and regular exercise were at all times ensured.
6.6 The State party submits that, by falsifying an order code, the author
deceived the prison authorities about the purchase of a scanner head for his
printer, pretending that he only wanted to buy ink cartridges. The purchase
of a scanner head was not authorized because of security concerns.
6.7 The State party considers that the denial of permission to receive
parcels was justified, because the author was a security risk, since he
twice attempted to escape from prison. The author was allowed to make phone
calls at least once a month. Moreover, under article 17, read in conjunction
with article 10, of the Covenant, the author was only entitled to
communicate with his family and friends by correspondence and by receiving
visits.
6.8 Regarding the author's obligation to pay contributions to the
unemployment scheme, the State party argues that within a risk community
grouping together the members of a certain profession or group, the pension
concept prevailed over the insurance concept, in accordance with the
jurisprudence of the Constitutional Court. Therefore, compulsory
contributions to a social insurance scheme must not necessarily result in
the payment of insurance benefits. The major aim of the inclusion of
prisoners in the unemployment scheme [FN7] was to ensure their
re-integration into society. While the author did not receive unemployment
benefits because he was deported immediately after his release, a
substantial number of former prisoners benefited from the scheme.
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[FN7] Section 66a of the Austrian Unemployment Insurance Act provides that
persons who serve a prison term and comply with their duty to work are
liable to pay unemployment benefits, so that the respective period may be
counted towards their eligibility for unemployment benefits after their
release.
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AUTHOR'S COMMENTS
7. On 15 December 2003, the author contended that he had fully substantiated
his claims, and that the State party's observations of 22 October 2003 are
without merit.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE:
CONSIDERATION OF ADMISSIBILITY
8.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
8.2 The Committee notes that the State party has invoked its reservation
under article 5, paragraph 2 (a), of the Optional Protocol, which precludes
the Committee from considering claims if the same matter has previously been
examined by the European Commission on Human Rights. The Committee recalls
that, for purposes of ascertaining the existence of parallel or successive
proceedings before the Committee and the Strasbourg organs, the European
Court of Human Rights has succeeded to the former European Commission by
taking over its functions, following the entry into force of Protocol No. 11
to the European Convention. [FN8] Consequently, the State party's
reservation applies also to situations where the same matter has previously
been examined by the European Court. [FN9]
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[FN8] Communication No. 989/2001, Kollar v. Austria, decision on
admissibility adopted on 30 July 2003, at para. 8.2.
[FN9] Ibid., at para. 8.3.
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8.3 As to the question of whether the European Court has "examined" the
matter, the Committee recalls its jurisprudence that where the Strasbourg
organs have based a decision of inadmissibility not solely on procedural
grounds, [FN10] but on reasons that involve even limited consideration of
the merits of the case, the same matter has been "examined" within the
meaning of the respective reservations to article 5, paragraph 2 (a), of the
Optional Protocol. [FN11] It considers that, in the present case, the
European Court proceeded beyond an examination of purely procedural
admissibility criteria, finding that the author's application "[did] not
disclose any appearance of a violation of the rights and freedoms set out in
the Convention or its Protocols". [FN12]
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[FN10] Communication No. 716/1996, Dietmar Pauger v. Austria, at para. 10.2
[FN11] Communication No. 121/1982, A.M. v. Denmark, Decision on
admissibility adopted on 23 July 1982, at para. 6; Communication No.
744/1997, Linderholm v. Croatia, Decision on admissibility adopted on 23
July 1999, at para. 4.2.
[FN12] Communication No. 744/1997, at paras. 3 and 4.2.
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8.4 The issue before the Committee is therefore whether the subject matter
of the present communication constitutes the "same matter" as the one
examined by the European Court. The Committee notes that the author's
application under the European Convention of Human Rights was submitted on
the same day as his communication under the Optional Protocol and that the
State party's explicit contention that the two complaints concerned the same
issues has not been contested by the author. Consequently, and as the State
party has invoked its reservation relating to article 5, paragraph 2 (a), of
the Optional Protocol, the Committee concludes that the same matter has
already been examined by the European Court of Human Rights.
8.5 However, the European Court was able to examine the same matter only
insofar as the substantive rights protected under the European Convention
converge with those protected under the Covenant, and to the extent that the
events complained occurred prior to 18 May 1999, when the author filed his
application with the European Court. The Committee observes that articles 8
and 17 of the Covenant largely converge with articles 4 and 8 of the
European Convention. However, neither the European Convention nor its
Protocols contain provisions equivalent to articles 10 and 26 of the
Covenant. Accordingly, the Committee considers that the State party's
reservation applies insofar as the case raises issues under articles 8 and
17 of the Covenant and to the extent that it relates to events which took
place prior to 18 May 1999. This part of the communication is therefore
inadmissible under article 5, paragraph 2 (a), of the Optional Protocol.
8.6 As regards the author's claim that the deduction of unemployment
contributions from the remuneration for his prison work amounted to
discrimination, in breach of article 26 of the Covenant, since it was clear
that he would on his eventual release not receive any unemployment benefits
as a foreigner who was to be deported to his country of origin directly
following his release from prison, the Committee notes, on the basis of the
material at its disposal, that the author had not, at the time of his
complaint to the Committee or afterwards, raised this claim before the
Austrian authorities and courts. Apart from contending that his "refusal" to
exhaust domestic remedies was justified, the author failed to address the
State party's argument that he could have challenged any possible
discriminatory effect of the compulsory contributions to the unemployment
scheme before the Constitutional Court, or to indicate whether and, if so,
why the remedy of constitutional complaint would have been ineffective or
unavailable to him in the specific circumstances of his case. The Committee
therefore considers that the author has failed to exhaust domestic remedies
in this regard, and concludes that this part of the communication is
inadmissible under article 5, paragraph 2 (b), of the Optional Protocol.
8.7 As to the remainder of the communication, the Committee observes that
the author has not substantiated, for purposes of admissibility, that his
obligation to perform work at prison, the degree of the alleged restriction
of his telephonic communication with family members, or any other measures
taken by the prison authorities, in particular the confiscation of his
computer and the denial of permission to buy equipment for his printer or to
receive food and other parcels from his family, violated his right under
article 10 of the Covenant to be treated, as a prisoner, with humanity and
with respect for the inherent dignity of the human person or that he, as a
foreigner or on account of his being black, was discriminated against within
the meaning of article 26 of the Covenant.
8.8 The Committee also notes the contradiction between the author's
complaint to the Ministry of the Interior that he was confined to his prison
cell for 23 hours a day from 30 November 2000 to 30 April 2001 and the State
party's submission that, during the period in question, the author was
placed under strict house arrest on three occasions, for different breaches
of the prison rules on 30 November 2001 and on 23 and 30 January 2001, and
that the duration of these house arrests was limited to twelve, seven and
eight days, respectively. The Committee notes that the author has not
commented on this discrepancy, and therefore concludes that he has failed to
substantiate this claim, for purposes of admissibility. It follows that the
communication is inadmissible under article 2 of the Optional Protocol,
insofar as it raises issues under article 10 of the Covenant.
9. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under articles 2 and 5, paragraph
2 (a), and (b), of the Optional Protocol;
(b) That this decision shall be communicated to the State party and to the
author.
_____________________________
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]
The text of an individual opinion signed by Committee member Mr. Hipólito
Solari-Yrigoyen is appended to the present document.
APPENDIX
INDIVIDUAL OPINION BY COMMITTEE MEMBER MR. HIPOLITO SOLARI-YRIGOYEN
(DISSENTING)
My Partial Disagreement Is Based On The Considerations Below
CONSIDERATION OF ADMISSIBILITY
Regarding the author's assertion that he was punished by being confined to
his cell for 23 hours a day, the Committee notes that the State party admits
the punishment and the description given of it, but disagrees with how long
it lasted. The author says it lasted from 30 November 2000 to 30 April 2001;
the State party says it fell into three parts lasting respectively twelve,
seven and eight days, making a total of 27 days.
The Committee observes that the State party has given incomplete
information, since it does not mention the dates when the author was due to
undergo his punishment and fails to explain how it was able to give the
author the opportunity to take exercise "at all times", thereby treating him
in a manner consistent with the minimum rules laid down in article 10 of the
Covenant (as stated in para. 6.5), while admitting that he was shut in his
cell 23 hours a day for 27 days. The Committee points out that the State
party is required to furnish "explanations or statements clarifying the
matter" as stated in article 4, paragraph 2, of the Covenant.
The Committee also observes that the author rejected the State party's
comments of 22 October 2003 as without merit, as stated in paragraph 7. The
author thus disagrees with the shorter length of punishment claimed by the
State party.
It follows from the above that the communication is admissible under article
2 of the Optional Protocol, inasmuch as it raises issues under article 10 of
the Covenant.
CONSIDERATION ON THE MERITS
The Committee must determine, in considering the merits of the case, whether
the confinement to which, according to the author's letter of 22 May 2001
providing additional information, he was subjected by the State party
constituted a violation of article 10 of the Covenant. It notes that the
author and the State party concur that the punishment consisted in
confinement of the prisoner to his cell for 23 hours a day.
The Committee points out that the essential aim of any penitentiary system
should be the reformation and social rehabilitation of offenders, and that
punishments should pursue those objectives provided that they do not
encroach upon the humane treatment to which persons deprived of their
liberty are entitled (article 10, paragraphs 1 and 3, of the Covenant). The
Committee notes that the State party has neither alluded to those objectives
nor argued that the punishment inflicted on the author was intended to
further them.
The Committee concludes that the extremely harsh punishment inflicted on the
author was, given its possible mental and physical consequences and the
length of time for which it was inflicted, inconsistent with article 10 of
the Covenant which requires all persons deprived of their liberty to be
treated with humanity and with due respect for the inherent dignity of the
human person. Pursuant to article 4, paragraph 4, of the Optional Protocol,
the Committee finds that the facts alleged reveal a violation of article 10
of the International Covenant on Civil and Political Rights.
[Signed] Hipólito Solari-Yrigoyen
Geneva, 27 October 2004
[Done in English, French and Spanish, the Spanish text being the original
version. subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
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