Zeyad Khalaf Hamadie Al-Gertani v. Bosnia and Herzegovina
OHCHR – Human Rights Committee
Communication No. 1955/2010
1 November 2013
International Covenant on Civil and Political Rights: articles 17 (protection from arbitrary or unlawful interference with privacy and family life), 23 (protection of the family), 24 (special protection for children), and 26 (Right to equal protection of the law).
The author, Zeyad Khalaf Hamadie Al-Gertani, was an Iraqi national detained in an immigration centre in Eastern Sarajevo, awaiting removal to Iraq. After having deserted the army in Iraq in 1991, he fled the country and arrived in Bosnia and Herzegovina in September 1995, with a forged Yemeni passport under the identity of someone else. He married a woman who was a national of Bosnia and Herzegovina and settled there; they had three children. On 4 January 1996, the Ministry of Internal Affairs granted him citizenship of Bosnia and Herzegovina under his false name. After he reported his true identity to the authorities, the granted citizenship was revoked on the grounds that he had obtained it under a false identity. He was then apprehended and placed in an immigration centre in Eastern Sarajevo on the grounds that he was considered a threat to the legal system, public order, peace and security of Bosnia and Herzegovina. He remained in detention since then and an expulsion order was issued against him with a five-year prohibition on entering and staying in Bosnia and Herzegovina.
The Al-Gertani claimed in particular that his deportation to Iraq by the State party would constitute a violation of articles 17 (protection from arbitrary or unlawful interference with privacy and family life), 23 (protection of the family), and 24 (special protection for children) of the International Covenant on Civil and Political Rights (the Covenant).
With regard to this claim, the author submitted that his detention and possible deportation constituted an arbitrary and unlawful interference with his privacy and family life. His wife and minor children were nationals of Bosnia and Herzegovina, did not speak Arabic, and had no ties whatsoever to the Iraqi culture. They could not follow him to a country facing a civil war with a deplorable security situation. Therefore, the execution of the expulsion order in practice would entail splitting up his family for several years with a negative impact on the well-being of his children (Paragraph 3.4).
The Committee took note of the author’s claim and also of the State party’s argument that the right to privacy and family life are not absolute rights and that they may be restricted for reasons of public interest (Paragraph 10.7).
The Committee recalled its jurisprudence according to which the separation of a person from his family by means of his expulsion constitutes an interference with the family life protected by article 17, paragraph 1, of the Covenant. In cases where one part of a family must leave the territory of the State party while the other part would be entitled to remain, the relevant criteria for assessing whether or not the specific interference with family life amounts to arbitrary interference or can be objectively justified must be considered in the light of, on the one hand, the significance of the State party’s reasons for the removal of the person concerned and, on the other, the degree of hardship the family and its members would encounter as a consequence of such removal. In the present case, the Committee observed that the removal of the author would impose considerable hardship on his family. If the author’s wife and minor children were to decide to immigrate to Iraq in order to avoid a separation of the family, they would have to live in a country whose culture and language are unfamiliar. The Committee is of the view that the State party has failed to show that the interference with his family life is justified by serious and objective reasons. Accordingly, the Committee considered that under the circumstances the author’s deportation would constitute a violation of articles 17 and 23 of the Covenant (Paragraph 10.8 and 10.9).
Having concluded that there had been a violation of the above provisions, the Committee decided not to examine separately the author’s claims under article 24 of the Covenant.
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