Baban et al v Australia
OHCHR – Human Rights Committee
Communication No. 1014/2001
6 August 2003
International Covenant on Civil and Political Rights, article 9 (deprivation of liberty), article 24 (protection of the child)
Convention on the Rights of the Child
Australia rejected the refugee application of Mr Baban and his son, nationals of Iraq and of Kurdish origins, and they went on a hunger strike while in detention. During the strike, it is alleged that they did not have use of power, were denied access to the outside world, given drugged water, deprived of sleep and forcibly removed to another detention centre. It was also alleged that upon arrival, Mr Baban’s son was forcibly fed and Mr Baban was put into an isolation cell until he ended the hunger strike. Mr Baban also alleged he was denied access to legal counsel until they were returned to the previous detention centre to attend a court hearing. While awaiting an appeal of their case, Mr Baban and his son escaped from the detention facility and their whereabouts were unknown.
The Committee concluded that the complainants’ right under article 9 (right to liberty) had been violated because the detention was arbitrary as it extended beyond the time for which the state could provide appropriate justification and because the state had not demonstrated that less intrusive measures would have been insufficient. However, the Committee found that the claim that Australia had violated article 24 (protection of the child) of the Covenant had not been substantiated, because the authorities had considered the best interests of the child, which in this situation required Mr Baban’s son to stay with the only family member he had, and efforts were made to provide the child with appropriate educational, recreational and other programs while he was in detention.
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