Views of the Committee on the Rights of Persons with Disabilities dated 18 August 2017 in the case X v. United Republic of Tanzania (communication No. 22/2014).
In 2014, the author of the communication was assisted in preparing a complaint. The complaint was subsequently communicated to the United Republic of Tanzania..
Subject matter: torture, inhuman and degrading treatment; discrimination against a person suffering from albinism.
A matter of substance: albinism; discrimination on the basis of disability; torture, inhuman and degrading treatment; violation of the right to respect for intellectual and mental integrity.
The Committee's legal position: In accordance with article 5, paragraphs 1 and 2, of the Convention on the Rights of Persons with Disabilities, States parties are obliged to ensure that all persons are equal before the law and have the right to equal protection and equal use of the law without discrimination, and to take all appropriate steps to ensure reasonable accommodation to promote equality and eliminate discrimination. The Committee considers that discrimination may result from the discriminatory effect of a norm or measure that is not designed to discriminate but disproportionately affects persons with disabilities (paragraph 8.3 of the Views) (See S.K. v. Brazil, paragraph 6.4.).
The Committee...Recalls that, according to article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, "torture" means any act by which severe pain or suffering, physical or moral, is intentionally inflicted on any person in order to obtain information or confessions from him or from a third person, to punish for an act that he or a third person has committed or is suspected of committing, as well as intimidate or coerce him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by a public official or other person acting in an official capacity, or at their instigation, or with their knowledge or acquiescence. The Committee further recalls that the violent acts suffered by the author were committed by private individuals; as such, they do not constitute acts of torture (paragraph 8.5 of the Views).
Nevertheless, the Committee recalls that the obligation of States parties to prevent and punish torture and inhuman and degrading treatment extends to acts committed by both State and non-State actors. In dealing with such cases, speed and efficiency are particularly important (paragraph 8.6 of the Considerations).
The Committee's assessment of the factual circumstances of the case: The Committee takes into account...[the author's] argument that he was discriminated against on the basis of disability, since the type of violence of which he was a victim is widespread in the State party and affects only persons with albinism. The Committee...Takes into account the author's claim that he was the victim of discrimination on the basis of disability as a result of the fact that the persons who subjected him to violence have not been punished to this day. In this regard, the author argues that impunity is typical for most cases of violence against persons suffering from albinism, since the authorities of the State party consider that these cases are related to witchcraft, which is a generally recognized cultural practice against which numerous superstitions persist in society...The Committee notes that the authorities of the State party have not taken the necessary measures to conduct an effective, full and impartial investigation and to bring the perpetrators to justice, as well as that, that no preventive or protective measures have been taken with regard to violence against persons with albinism (paragraph 8.2 of the Considerations).
The Committee notes that the author was the victim of a violent crime that has all the hallmarks of a practice affecting exclusively persons with albinism: On April 10, 2010, he was attacked by two men while gathering firewood; they hit him on the head with batons; severed his left arm below the elbow; and took it with them. Since then, the author's access to justice has been significantly limited in the sense that after the termination of the first trial, the competent authorities apparently did not carry out any investigative actions, and more than eight years after the commission of the criminal attack on the author, the perpetrators in this case have not been punished (paragraph 8.3 of the Considerations).
The Committee considers that the State party cannot evade its obligations under the Convention simply by virtue of the fact that some of its judicial authorities, such as the Morogoro District Court and the Constitutional Court, have already considered or are in the process of considering the case, while it is obvious that the State party's legal protection procedures They are unnecessarily lengthy and appear to be ineffective. In addition, the Committee notes that the authorities of the State party did not provide the author with any assistance so that he could return to an independent life after losing his arm, and that, in general, the State party has not taken any measures to prevent such manifestations of violence against persons with albinism and to protect them. In the absence of any explanation from the State party on these issues, the Committee considers that the author was the victim of violence directed exclusively at persons with albinism. He further considers that as a result of the State party's failure to prevent and punish such acts, the author and other persons with albinism have found themselves in a particularly vulnerable position, unable to live in society on an equal basis with others...The Committee concludes that the author has been the victim of direct discrimination on the basis of disability, in violation of the provisions of article 5 of the Convention (paragraph 8.4 of the Views).
With regard to the author's allegations concerning article 15 of the Convention, the Committee takes into account his argument that the acts to which he was subjected amounted to torture and violation of his physical integrity. The Committee recalls that, in accordance with paragraphs 1 and 2 of article 15 of the Convention, no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment, and States parties shall take all effective legislative, administrative, judicial or other measures to ensure that persons with disabilities, on an equal basis with others, are not subjected to torture or cruel, inhuman or degrading treatment or punishment. inhuman or degrading treatment or punishment (paragraph 8.5 of the Views).
The Committee considers that the author's suffering, which resulted from inaction on the part of the State party, which did not effectively bring to justice suspects of this crime, caused repeated victimization and amounted to psychological torture and/or ill-treatment (See Human Rights Committee, communication No. 1956/2010, Duric and Duric v. Bosnia and Herzegovina, Views adopted on 16 July 2014, paragraphs 9.6 - 9.7; and Irusta and del Valle Irusta v. Argentina, paragraph 10.8.). For these reasons, the Committee considers that, in the circumstances of the present case, the State party has violated the provisions of article 15 of the Convention (paragraph 8.6 of the Views).
With regard to the author's complaint under article 17 of the Convention, the Committee recalls that every disabled person has the right to respect for his physical and mental integrity on an equal basis with others. The right to personal integrity is based on the very concept of personality; it is linked to the idea of human dignity and the need to protect the physical and mental space of each person; it is about the prohibition of physical and psychological torture and inhuman and degrading treatment and punishment, as well as a wide range of less serious attacks on the human body and mind. The acts of violence to which the author was subjected certainly fall into the category of actions leading to a violation of the physical and mental integrity of the affected person. The Committee also recalls that, in accordance with article 4 of the Convention, States parties have a general obligation to take all necessary measures to ensure and promote the full enjoyment of all human rights, including the right to personal integrity. In the present case, the State party did not take any measures to prevent the acts that the author had to endure and punish the perpetrators, as well as to assist him in returning to an independent life after losing his arm. In addition, to date, the perpetrators remain completely unpunished. Accordingly, the Committee considers that the fact that the State party has not taken all necessary measures to prevent acts of violence such as those to which the author was subjected, as well as to effectively investigate these acts and punish those responsible in the author's case, constitutes a violation of his rights enshrined in article 17, read in conjunction with article 4 The Convention (paragraph 8.7 of the Views).
The Committee's conclusions: The State party has failed to comply with its obligations under articles 5, 15 and 17, read in conjunction with article 4 of the Convention (paragraph 9 of the Views).