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Mohammad Ferout was granted Australian citizenship after coming to Australia as a refugee after the 2003 Iraq War. In June 2017, he was arrested and charged with terrorism offences. (Criminal Offence) After several procedural hearings, his case was set down for a two-week long jury trial in the Supreme Court. (Time of the Case) The case attracted an enormous amount of public interest because Ferout was the Australian representative of an international terrorist organization and he had attempted to recruit new members to the organization using social media. In the week prior to the trial, the Commissioner of Federal Police said in a press conference that “Ferout was the most dangerous terrorist Australia had ever known” and she= questioned how Ferout could remain an Australian citizen The Commissioner’s statements were picked up by members of a far-right citizen’s action group, “OurOz”, whose public platform was the denial of citizenship to anyone convicted of terrorism. (Media) OurOz lobbied for a prohibition on granting refugee status to all Muslim asylum seekers (Discrimiantion) During the trial, OurOz supporters gathered outside the courtroom, waving Australian flags and chanting “Get out Ferout”. Twenty OurOz supporters were present in the courtroom throughout the trial, wearing their “OurOz” t-shirts with the Australian flag on them. (Fair and Public hearing) The judge, who had made a public donation to OurOz during one of its early fundraising drives, had to tell OurOz supporters several times to keep quiet during the trial. (Bias, Not impartial) Throughout the trial Ferout was kept behind a Perspex screen, which the police installed to protect the public and the jury from any potentially violent actions on his part. Ferout’s lawyer, Sam Spence, was a recent law graduate who had gone straight to the bar and was doing his first case for Legal Aid. He had serious difficulty getting instructions from Ferout because Ferout insisted that he would only talk to a Muslim lawyer. Ferout was held in custody for 24 months, despite several bail applications being made, while Legal Aid tried unsuccessfully to find him a Muslim Legal Aid Lawyer.

Discuss the human rights issues raised by Ferout’s case. Refer, where appropriate, to the specific rights involved, the ways certain rights are limited/violated, and to international human rights law, principles and jurisprudence.

Fair Trial Issues: Whether M was given. Fair trial? Presumed guilt. Whether the Judge was impartial? Whether M was given adequate representation? Whether the Trial was within a reasonable time? Whether M was unfairly detained? Whether M should have his citizenship taken away?

Rules and Application: Impartial Judge UDHR, Article 10, ‘Full quality to a fair and public hearing by an independent and impartial tribunal’ ICCPR, Article 14, ‘All persons shall be equal before the courts and tribunals. HCR, General Comment 8, ‘Judge must be impartial. (HRC General Comment 32 2007)A hearing is not fair if, for instance, the defendant in criminal proceedings is faced with the expression of a hostile attitude from the public, or support for one party in the court room that is tolerated by the court, thereby impinging on the right to a defence. From the facts above, it is evidence that as someone that has made a public donation to the group that is being hostile towards M, the judge is not impartial. This is supported by the case of Grind v Russian Federation where the lack of silencing the hostile party resulted in the court finding that this suggests that the judge too thinks that the defendant is at fault. It is evident that M was not equal before the court do the the lack of judicial activism by the judge and allowing the groups to be hostile during the proceeding. Although they were silenced they had cause enough disorder. Nationality

UDHR, Article 15, ‘Right to nationality’ M despite his crimes still has a right to nationality. Unfairly Detained and Reasonable time UDHR, Article 3, ‘Right to liberty’ UDHR, Article 9, ‘Subject to arbitrary arrest, detention or exile. ICCPR, Article 9, ‘Everyone has the right to liberty and security, no one shall be subject to ...detention…rights of the arrested to be brought before a judge’ ICCPR, Article 14(3)…..without undue delay ICCPR, Article 9(2), if detentionee must be informed why? The case and the charges against them Article 9(5) “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. M right to liberty was taken and this I because he was subject to arbitrary detention. This is because there is a requirement for reasonable time of being detained and was not taken to an independent judge. M was placed in detention for two years. As in the case of Kone v Sengal undue delay takes away an individual liberty. However, it can also be argue that this was a case by case basis and there was fear the M would run away due to his criminal history. This could have been done to prevent the reoccurrence of a crime. Adequate Representation ICCPR, Article 14(3), ‘....to have an interpreter if cannot speak or understand the language.’ ICCPR, Article 14(3)(D) (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; It is evident the M could speak English and only wanted a lawyer of the same faith, these are not enough grounds to say that the trial was unfair. Furthermore, as evident above M could have been helped with an interpreter because the curl would provide one as a human right. Presumed Guilt HRC, General Comment 13, ‘Innocent until proven guilty’ ICCPR, Article 14, ‘Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. The policemen displayed M through a screen because he’d possibly be violent this can be debated to be against the conventions.

Privacy and Expression

UDHR, Article 19, ‘freedom of opinion and expression ICCPR, Article 19, ‘freedom to seek, receive and impart information’ UDHR, Article 12, ‘..arbitrary interference with his privacy, family, home or correspondence, not to attacks upon his honour and reputation’. Article 17 of the ICCPR states that: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 19(3) provides that freedom of expression may be limited where those limitations can be demonstrated to be necessary for ensuring ‘respect for the rights and reputations of others. Faurisson v France - article 19 can restrict you form your opinion if it is 19(3)in respect to the reputation of others and the protection of society, moral grounds’ Human Rights Committee, General Comment No. 16, above, para 7, discuss how i is vital to balance this with article 19.

The above provisions are to protect M from the states and privates. However, states can only do so much in conjunction to state law. In M’s case it is most likely that his privacy will not be respected considering that there are international conventions and customary law which allows expression. Article 19(3) provides that tin the only case where he privacy of an individual will be restricted is when 1) respect of the rights or reputations 2) protection of national security or of public order. From this case it is evident that the reaction towards M is negative it may be in the best interest of the public to restrict the expression and uphold his right to privacy. Furthermore,it is being restricted because it is big used for hate speech against Muslims. Furisson v France case were here was a restriction due to the hate speech against a minority the jewish, article 19 approves the restriction.

Discrimination

Freedom from discrimination (article 2 of the ICCPR) UDHR, Article 1 ‘All humans are born ‘free’ and ‘equal’ in dignity and rights UDHR, Article 2, ‘Everyone is entitled to freedoms, without distinction of any kind, such as race, colour ...religion’. UDHR, Article 7, ‘Equal before the law, without any discrimination to equal protection of the law’ UDHR, Article 13 % 14, ‘freedom of movement and residence ...right to seem,. Asylum…’ UN Charter, Article 1(3), ‘freedoms for all without distinction as to race, sex, language, or religion’ UN Charter 55, ‘UN shall...universal respect…..human rights...for all without distinction as to race, sex, launge or religion. - binging to state parties. Article 103, no obligation may prevail over this charter. Article 20 of the ICCPR further states that ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’ - right to expression cancelled The requirements of article 20 of the ICCPR is s 18C of the Racial Discrimination Act 1975 (Cth) (RDA). Section 18C provides: (1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. ICCPR , Article 26, ‘All persons are equal before the law and….entitled to equal protection of the law…shall prohibit discmrination. International Convention on the elimination of all forms of Racial Discrimination. Barcelona Traction - ‘erga omnes, the obligations to protect against discrinaiton are in the legal interests of all states’...