CCPR/C/115/D/2005/2010
did not investigate the author’s allegations of torture in the custody of the United States, in
violation of articles 7 and 10 of the Covenant; (g) on numerous occasions, Australian
officials interviewed the author while in the custody of the United States, in circumstances
where those officials knew of or should reasonably have been aware of serious violations of
his rights; (h) by interviewing the author in the custody of the United States to gather
intelligence, Australia recognized the author’s unlawful treatment by the United States and
thereby encouraged and supported it; subsequently, Australia made use of the intelligence
gathered in those interviews in the control order proceedings against the author in the
Australian courts; (i) the enforcement of the sentence of imprisonment constituted an
acknowledgement and adoption of the plea agreement by Australia; (j) Australian
authorities invoked the agreement in a threatening manner in their dealings with the author
in Australia; (k) the control order imposed on the author upon release from Yatala Labour
Prison was unfair and the limitations imposed unnecessary, in violation of articles 12, 14,
17, 19 and 22 of the Covenant.
2.5
As many of the claims submitted by the author against Australia relate to alleged
violations of the author’s rights prior to his return to Australia, the Committee must
determine whether Australia exercised any jurisdiction over the author while he was in the
custody of the United States. The Committee recalls that, under article 2 of the Covenant, a
State party undertakes to respect and to ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the present Covenant, and that article 1 of
the Optional Protocol allows the Committee to receive and consider communications from
individuals subject to its jurisdiction. In its general comment No. 31 (2004) on the nature of
the general legal obligation imposed on States parties to the Covenant, the Committee set
out that a State party must respect and ensure the rights laid down in the Covenant to
anyone within the power or effective control of that State party, even if not situated within
the territory of the State party (para. 10). The Committee notes that the author was in the
custody of the United States from December 2001 to 20 May 2007 and that, during that
time, he was subjected to criminal proceedings under United States law. However, the
Committee also notes that, according to the State party, the author was visited on 21
occasions by Australian officials and police while in United States custody (see annex II
below, para. 116). The author reported that Australia made a number of representations to
the Government of the United States seeking to improve the procedures and protection
available to him, a fact that is not contested by the State party. In those circumstances, the
Committee considers that the issue of jurisdiction is closely linked to the merits of the case
and should be reviewed at that stage. †
2.6
The Committee notes that the State party is objecting to the review of the
responsibility borne by Australia with regard to the author’s deprivation of liberty and
judgement by the United States authority on the basis of the principle set out by the
International Court of Justice in the Case of the monetary gold removed from Rome in
1943.‡ The Committee notes that, in that case, the Court decided that it could not deal with
the first claim by Italy, as the interests of Albania, which had not consented to the Court’s
jurisdiction, would not only be affected by the decision the Court was to take but would be
“the very subject-matter of the decision”.§ The Committee considers that, in the present
case, it is clear that the author is complaining about the conduct of Australia and that the
interest of the United States is not “the subject-matter” of the Views the Committee is
†
‡
§
4
See communication No. 1539/2006, Munaf v. Romania, Views adopted on 30 July 2009, para. 7.5.
Case of the monetary gold removed from Rome in 1943 (Preliminary Question) (Italy v. France,
United Kingdom of Great Britain and Northern Ireland and United States of America), Reports of
Judgments, Advisory Opinions and Orders, judgment of 15 June 1954, I.C.J. Reports 1954, p. 19.
Ibid., p. 32.