General Documents Not Relating To Specific States - Annual and Sessional Reports - CCPR

[18 October 2000]

CONTENTS

Volume I

Chapter

I. JURISDICTION AND ACTIVITIES

A. States parties to the International Covenant on

Civil and Political Rights

B. Sessions of the Committee

C. Elections, membership and attendance

D. Solemn declaration

E. Election of officers

F. Special rapporteurs

G. Revised guidelines for States parties' reports

H. Working groups

I. Other United Nations human rights activities

J. Derogations pursuant to article 4 of the Covenant

K. General comments under article 40, paragraph 4,

of the Covenant

L. Staff resources

M. Publicity for the work of the Committee

N. Documents and publications relating to the work

of the Committee

O. Future meetings of the Committee

P. Adoption of the report

CONTENTS (continued)

Chapter

II. METHODS OF WORK OF THE COMMITTEE

UNDER ARTICLE 40 OF THE COVENANT:

NEW DEVELOPMENTS

A. Recent decisions on procedures

B. Concluding observations

C. Links to other human rights treaties and

treaty bodies

D. Cooperation with other United Nations bodies

III. SUBMISSION OF REPORTS BY STATES PARTIES

UNDER ARTICLE 40 OF THE COVENANT

A. ........................................................................................... Reports submitted to the Secretary‑General from

August 1999 to July 2000

B. Overdue reports and non‑compliance by States parties

with their obligations under article 40

IV. CONSIDERATION OF REPORTS SUBMITTED BY

STATES PARTIES UNDER ARTICLE 40 OF THE

COVENANT

A. Norway

B. Morocco

C. Republic of Korea

D. Portugal (Macau)

E. Cameroon

F. Hong Kong Special Administrative Region

G. Congo

CONTENTS (continued)

Chapter

IV. (contd)

H. United Kingdom of Great Britain and

Northern Ireland ‑ the Crown Dependencies

of Jersey, Guernsey and the Isle of Man

I. Mongolia

J. Guyana

K. Kyrgyzstan

L. Ireland

M. Kuwait

N. Australia

V. CONSIDERATION OF COMMUNICATIONS UNDER

THE OPTIONAL PROTOCOL

A. Progress of work

B. Growth of the Committee's caseload under the

Optional Protocol

C. Approaches to considering communications under

the Optional Protocol

D. Individual opinions

E. Issues considered by the Committee

F. Remedies called for under the Committee's

Views

VI. FOLLOW‑UP ACTIVITIES UNDER THE

OPTIONAL PROTOCOL

CONTENTS (continued)

Annexes

I. STATES PARTIES TO THE INTERNATIONAL COVENANT

ON CIVIL AND POLITICAL RIGHTS AND TO THE OPTIONAL

PROTOCOLS AND STATES WHICH HAVE MADE THE

DECLARATION UNDER ARTICLE 41 OF THE COVENANT

AS AT 28 JULY 2000

A. States parties to the International Covenant on Civil

and Political Rights

B. States parties to the Optional Protocol

C. States parties to the Second Optional Protocol, aiming

at the abolition of the death penalty

D. States which have made the declaration under article 41

of the Covenant

II. MEMBERSHIP AND OFFICERS OF THE HUMAN RIGHTS

COMMITTEE, 1999‑2000

A. Membership of the Human Rights Committee

B. Officers

III. CONSOLIDATED GUIDELINES FOR STATES PARTIES' REPORTS

UNDER THE INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS

IV. SUBMISSION OF REPORTS AND ADDITIONAL

INFORMATION BY STATES PARTIES UNDER

ARTICLE 40 OF THE COVENANT

V. STATUS OF REPORTS CONSIDERED DURING THE PERIOD

UNDER REVIEW AND OF REPORTS STILL PENDING

BEFORE THE COMMITTEE

CONTENTS (continued)

Annexes Page

VI. GENERAL COMMENTS ADOPTED BY THE HUMAN RIGHTS

COMMITTEE UNDER ARTICLE 40, PARAGRAPH 4,

OF THE INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS

A. General Comment No. 27 (67) concerning article 12

(freedom of movement)

B. General Comment No. 28 concerning article 3

(equality of rights between men and women)

VII. LIST OF STATES PARTIES' DELEGATIONS THAT PARTICIPATED

IN THE CONSIDERATION OF THEIR RESPECTIVE REPORTS BY

THE HUMAN RIGHTS COMMITTEE AT ITS SIXTY‑SEVENTH,

SIXTY‑EIGHTH AND SIXTY‑NINTH SESSIONS

VIII. LIST OF DOCUMENTS ISSUED DURING THE REPORTING

PERIOD

Volume II

IX. VIEWS OF THE HUMAN RIGHTS COMMITTEE UNDER

ARTICLE 5, PARAGRAPH 4, OF THE OPTIONAL PROTOCOL

TO THE INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS ................................................................................................. 11

A. Communication No. 625/1995, Freemantle v. Jamaica

(Views adopted on 24 March 2000, sixty‑eighth session) ................................... 11

Appendix

B. Communication No. 631/1996, Spakmo v. Norway

(Views adopted on 5 November 1999, sixty‑seventh session) ............................ 22

Appendix

C. Communication No. 666/1995, Foin v. France

(Views adopted on 3 November 1999, sixty‑seventh session) ............................ 30

Appendix

D. Communication No. 682/1996, Westerman v. The Netherlands

(Views adopted on 3 November 1999, sixty‑seventh session) ............................ 41

Appendix

CONTENTS (continued)

Annexes Page

IX. (contd)

E. Communication No. 688/1996, Arredondo v. Peru

(Views adopted on 27 July 2000, sixty‑ninth session) ......................................... 51

F. Communication No. 689/1996, Maille v. France

(Views adopted on 10 July 2000, sixty‑ninth session) ......................................... 62

Appendix

G. Communication Nos. 690/1996 and 691/1996,

Venier & Nicolas v. France

(Views adopted on 10 July 2000, sixty‑ninth session) ......................................... 75

Appendix

H. Communication No. 694/1996, Waldman v. Canada

(Views adopted on 3 November 1999, sixty‑seventh session) ............................ 86

Appendix

I. Communication No. 701/1996, Gomez v. Spain

(Views adopted on 20 July 2000, sixty‑ninth session) ....................................... 102

J. Communication No. 711/1996, Dias v. Angola

(Views adopted on 20 March 2000, sixty‑eighth session) ................................. 111

K. Communication No. 731/1996, Robinson v. Jamaica

(Views adopted on 29 March 2000, sixty‑eighth session) ................................. 116

Appendix

L. Communication No. 759/1997, Osbourne v. Jamaica

(Views adopted on 15 March 2000, sixty‑eighth session) ................................. 133

M. Communication No. 760/1997, Diergaardt et al. v. Namibia

(Views adopted on 25 July 2000, sixty‑ninth session) ....................................... 140

Appendix

CONTENTS (continued)

Annexes Page

IX. (contd)

N. Communication No. 767/1997, Ben Said v. Norway

(Views adopted on 29 March 2000, sixty‑eighth session) ................................. 161

Appendix

O. Communication No. 770/1997, Gridin v. Russian Federation

(Views adopted on 20 July 2000, sixty‑ninth session) ....................................... 172

P. Communication No. 780/1997, Laptsevich v. Belarus

(Views adopted on 20 March 2000, sixty‑eighth session) ................................. 178

Q. Communication No. 789/1997, Bryhn v. Norway

(Views adopted on 29 October 1999, sixty‑seventh session) ............................ 183

X. DECISIONS OF THE HUMAN RIGHTS COMMITTEE DECLARING

COMMUNICATIONS INADMISSIBLE UNDER THE OPTIONAL

PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL

AND POLITICAL RIGHTS ....................................................................................... 188

A. Communication No. 748/1997, Gómez Silva v. Sweden

(Decision adopted on 18 October 1999, sixty‑seventh session) ........................ 188

B. Communication No. 756/1997, Doukouré v. France

(Decision adopted on 29 March 2000, sixty‑eighth session) ............................. 194

C. Communication No. 772/1997, Y. v. Australia

(Decision adopted on 17 July 2000, sixty‑ninth session) ................................... 199

D. Communication No. 777/1997, Sánchez López v. Spain

(Decision adopted on 18 October 1999, sixty‑seventh session) ........................ 204

E. Communication No. 785/1997, Wuyts v. The Netherlands

(Decision adopted on 17 July 2000, sixty‑ninth session) ................................... 210

F. Communication No. 807/1998, Koutny v. Czech Republic

(Decision adopted on 20 March 2000, sixty‑eighth session) ............................. 215

G. Communication No. 816/1998, Tadman et al. v. Canada

(Decision adopted on 29 October 1999, sixty‑seventh session) ........................ 218

Appendix

CONTENTS (continued)

Annexes Page

IX. (contd)

H. Communication No. 824/1998, Nicolov v. Bulgaria

(Decision adopted on 24 March 2000, sixty‑eighth session) ............................. 227

I. Communication No. 861/1999, Lestourneaud v. France

(Decision adopted on 3 November 1999, sixty‑seventh session) ....................... 234

J. Communication No. 871/1999, Timmerman v. The Netherlands

(Decision adopted on 29 October 1999, sixty‑seventh session) ........................ 237

K. Communication No. 873/1999, Hoelen v. The Netherlands

(Decision adopted on 3 November 1999, sixty‑seventh session) ....................... 240

L. Communication No. 882/1999, Bech v. Norway

(Decision adopted on 15 March 2000, sixty‑eighth session) ............................. 242

M. Communication No. 883/1999, Mansur v. The Netherlands

(Decision adopted on 5 November 1999, sixty‑seventh session) ....................... 245

N. Communication No. 891/1999, Tamihere v. New Zealand

(Decision adopted on 15 March 2000, sixty‑eighth session) ............................. 248

O. Communication No. 934/2000, G. v. Canada,

(Decision adopted on 17 July 2000, sixty‑ninth session) ................................... 251

P. Communication No. 936/2000, Gillan v. Canada

(Decision adopted on 17 July 2000, sixty‑ninth session) ................................... 255

XI. DECISIONS OF THE HUMAN RIGHTS COMMITTEE DECLARING

A COMMUNICATION ADMISSIBLE UNDER THE OPTIONAL

PROTOCOL............................................................................................................... 258

A. Communication No. 845/1999, Rawle Kennedy v. Trinidad and

Tobago (Decision adopted on 2 November 1999,

sixty‑seventh session) ...................................................................................... 258

Appendix

XII. SUMMARY OF THE ANNOUNCEMENT OF THE UNITED NATIONS

HIGH COMMISSIONER FOR HUMAN RIGHTS CONCERNING THE

ESTABLISHMENT OF A PETITION TEAM ........................................................... 273

Annex IX

VIEWS OF THE HUMAN RIGHTS COMMITTEE UNDER ARTICLE 5, PARAGRAPH 4,

OF THE OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL

AND POLITICAL RIGHTS

A. Communication No. 625/1995, Michael Freemantle v. Jamaica

(Views adopted on 24 March 2000, sixty‑eighth session)*

Submitted by:	Michael Freemantle (represented by Mr. Saul Lehrfreund of the London law firm of Simons Muirhead and Burton)

Alleged victim:	The author

State party:	Jamaica

Date of communication:	16 February 1995 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 24 March 2000,

Having concluded its consideration of communication No. 625/1995 submitted to the Human Rights Committee by Mr. Michael Freemantle under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication, and the State party,

Adopts the following:

* The following members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar Gaitan de Pombo, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski, Mr. Maxwell Yalden and Mr. Abdallah Zakhia. An individual opinion by member Eckart Klein is attached to the present document.

Views under article 5, paragraph 4, of the Optional Protocol

1. The author of the communication is Michael Freemantle, who at the time of submission of his communication was awaiting execution at St. Catherine District Prison, Jamaica. He claims to be a victim of violations by Jamaica of articles 7, 9, paragraphs 2 to 4, 10, paragraph 1, and 14, paragraphs 1 and 2, of the International Covenant on Civil and Political Rights. The author is represented by Saul Lehrfreund of the London law firm of Simons Muirhead and Burton. On an unspecified date in 1995, the author's death sentence was commuted to life imprisonment. An earlier communication submitted to the Human Rights Committee by Mr. Freemantle was declared inadmissible on 17 July 1992, on the ground that the author had failed to exhaust available domestic remedies, since he had not petitioned the Judicial Committee of the Privy Council for special leave to appeal.

Facts as submitted by the author

2.1 On 1 September 1985, the author was arrested and placed in custody; four days later, he was charged with the murder of one Virginia Ramdas. The author was first tried in 1986, together with a co‑defendant, E.M.; the jury failed to reach a unanimous verdict in the author's respect, and a re‑trial was ordered. On 19 January 1987, the author was found guilty as charged in the Clarendon Circuit Court and sentenced to death; on 21 January 1987, he appealed to the Court of Appeal, which dismissed the appeal on 4 December 1987. The Judicial Committee of the Privy Council dismissed the author's petition for leave to appeal on 27 June 1994. The offence for which the author was convicted was classified as a capital offence under the Offences Against the Persons (Amendment) Act 1992.

2.2 The prosecution contended that on 29 August 1985, at approximately 11:00 p.m., the author fired into a crowd watching a film in Raymonds, parish of Clarendon, injuring several people, among whom was V. Ramdas who died of gunshot wounds the next day. The prosecution relied primarily on the evidence of two witnesses, A.K. and W.C., who were in the cinema at the time of the incident, as well as the evidence of C.C., whose house had been shot at about 15 minutes after the cinema incident.

2.3 At the initial trial, A.K. had identified the author as the man who shot into the crowd; he also identified E.M. and one C.F. as the author's accomplices. At the re‑trial, however, he testified that he had identified Mr. Freemantle as the gunman as a result of pressure put on him by the community of Raymonds (mainly consisting of P.N.P. supporters), as the author was a known supporter of the J.L.P. His evidence for the re‑trial was that on the evening in question, he had seen some men including "a man looking like Freemantle", E.M. and C.F. going toward the cinema; the man looking "like Freemantle" carried something like a long gun in his hand; this man approached a hole in the wall; an explosion was heard; the man climbed onto a tree and jumped over the wall onto the lawn. A.K. apparently had known the author for 18 years. The trial transcript reveals that when giving evidence at the re‑trial, A.K. was himself in custody on charges of illegal possession of firearms and shooting with intent. He conceded that while in custody, he had seen the author and discussed the case with him; he admitted that there were political differences between himself and the author.

2.4 W.C. testified that he had known the author for 15 years, had seen him jumping over the wall after an explosion, firing twice, and then climbing back over the wall. He saw the author for about a minute, recognizing him in the bright moonlight. C.C. testified that on the evening in question at 11:50 p.m., he was at home, half a mile from the cinema, when he heard stones being thrown at the house. Looking out of a window, he recognized E.M., whom he knew. He then saw the author, whom he had known for 8 to 10 years, pointing a gun at one of the windows and firing. According to C.C., he saw the author for about two minutes. W.C. and C.C. testified that they had no interest in politics.

2.5 The arresting officer, Det. Cpl.Davis, testified that he went to search for the author and E.M. on 30 August 1985. He could not find them and had warrants for their arrest issued. On 2 September 1985, he recognized the author at May Pen Police Station, where he arrested him. Being cautioned, the author replied that he wanted to see his lawyer. Another police office testified that he took the author into custody on 1 September 1985.

2.6 The author made an unsworn statement from the dock, stating that, at the time of the incident, he was at Mineral Heights, watching television with E.M. and several other people. He did not leave the place and went to bed between 12:30 to 1:00 a.m. On 1 September 1985, he was told by a police officer that he was a suspect in a murder case, and was detained at the May Pen Police Station. The following day, he saw Det. Cpl. Davis and asked him why he was being held. Davis ignored him, and charged E.M. with destruction of property. The author claimed that it was not until the afternoon of 4 September 1985 that he was formally arrested and charged with murder; he claims that he was brought before an examining magistrate on 6 September 1985. E.M., also in custody at the time of the re‑trial, gave sworn evidence for the defence, corroborating the author's alibi. In cross‑examination, he admitted that he had spoken to the author in custody but denied having discussed the case, although they were both arrested and charged in connection with the shooting at Raymonds. He affirmed that, while in custody, he had seen prosecution witness A.K. and added that one Laurel Murray, a cousin of the author, was beaten by inhabitants of Raymonds before the shoot‑out.

2.7 In his summing‑up, the trial judge admonished the jury not to be influenced by political preferences and suggested that, as far as the author's identification was concerned, they should not rely on the evidence of A.K. He further pointed out that the remaining prosecution witnesses had stated that they were neither involved nor interested in politics (which implies that the credibility of their respective testimonies was considerably greater).

2.8 On appeal, the author's lawyer argued that: (a) the verdict was unreasonable and could not be supported having regard to the evidence and (b) the summing‑up on identification was inadequate and failed to emphasize the inherent dangers and possibility of mistakes. In respect of ground (b), the Court of Appeal concluded that "despite the absence of a formal warning there had been no miscarriage of justice". Had the jury been properly directed in the sense that had they been given the necessary warning, they would have come to the same conclusion. Before the Judicial Committee, the main issue to be argued was identification.

2.9 As to the claims under article 14, counsel invokes a statement taken from A.K. by an officer of the Criminal Investigation Branch who visited the author in prison on 25 April 1988. In his affidavit, A.K. states that he and the author had been friends but had developed political differences. He also states: "I did not see who fired the shots. Earlier that day Laurel Murray was beaten by citizens [...]. He is the cousin of Michael Freemantle. He told them that I was the person who beat him. The police knew that I was not involved [...] On 1 September 1985, I [...] was taken to Det. Cpl. Davis [...]. [He] told me that he knew that I did not beat Laurel Murray [...]. He said that since they are telling lies on me I should give a statement saying that Freemantle was the one who fired the shots ... He said that W.C. would give a statement supporting me. I was arrested ... for the wounding of Laurel Murray. I went to court where I saw Freemantle. He told me that he was going to tell Laurel Murray to send me to prison. The case was tried and I was dismissed. [...]. I went to Davis' office where he wrote a statement ... I read it and signed it as true and correct. [...]. In this statement I said that I saw Freemantle fired the shots. I gave this evidence at the first trial of Freemantle. [..] In 1986, I was arrested and charged for shooting with intent by Det. Cpl. Davis. In Jan. 1987, I told [Freemantle] that I gave false evidence at the first trial and that I would be telling the truth at the second trial. Davis told me that if I change my evidence he was going to influence the witnesses to give evidence to convict me. As a result of these threats I gave evidence at Freemantle's re‑trial and changed a lot of parts to help him [...]. The evidence I gave at both trials are false. I gave it because of fear and threats by Det. Cpl. Davis".

2.10 On the same day, a statement was taken from the author. He states that in his community he is known as a J.L.P. supporter, and that there is constant conflict between J.L.P. and P.N.P. supporters. He claims to be innocent and that he did not go home on the night of 29‑30 August 1985, but that he stayed at Mineral Heights. Much of the author's observations coincide with those made by A.K. in his affidavit.

2.11 On 14 June 1988, the Director of Public Prosecutions forwarded to the Governor‑General all materials obtained as a result of the police investigation into A.K.'s allegations. According to counsel, no action was taken by the Governor‑General in respect of the DPP's letter. On 29 August 1990, the Jamaica Council for Human Rights contacted a Jamaican lawyer on the author's behalf; this lawyer advised to petition the Governor‑General to have the matter referred back to the Court of Appeal of Jamaica; he further stated that legal aid would not be provided, but that he was willing to take the case on.

2.12 As to exhaustion of domestic remedies, it is submitted that a constitutional motion is not available to the author in practice because of his lack of funds and the unavailability of legal aid for this purpose. Counsel recalls the difficulties of finding a lawyer in Jamaica to represent applicants in constitutional motions. The State party's unwillingness to provide legal aid for such motions is said to absolve Mr. Freemantle from pursuing constitutional remedies.

The complaint

3.1 It is submitted that the author did not receive a fair trial within the meaning of article 14, paragraph 1, because the investigating officer who influenced A.K. to implicate the author falsely could have similarly influenced the other main prosecution witnesses, W.C. and C.C. Counsel refers to the Committee's General Comment No. 13, where the Committee held that it is a duty for all public authorities to refrain from prejudging the outcome of a trial. He submits that Det.Cpl. Davis prejudiced the outcome of the author's trial, in violation of article 14, paragraph 2.

3.2 Counsel invokes another sworn affidavit signed by the author on 27 October 1994, in which he notes that he was arrested and taken to May Pen on 1 September 1985, and that he was held in custody for four days before being charged with murder. During this time, he had no access to a lawyer. Counsel contends that there is no justification for a four day delay between the author's detention and his being informed of the charges against him. With reference to the Committee's General Comment No. 8 and its jurisprudence, it is submitted that the author's pre‑trial detention was contrary to the requirements of article 9, paragraphs 2, 3 and 4.

3.3 As to alleged violations of articles 7 and 10, the author recalls that on 28 May 1990, he and other inmates broke out of their cells because they had not been allowed to exercise and slop up. The disturbances spread to other parts of the prison. Inmates were asked to return to the cells and complied, but subsequently, warders took the author from his cell, took off his clothes, searched him and started to beat him with a piece of metal. He sustained injuries to head, knee, stomach and eyes, having been beaten for about five minutes. He was then left in his cell unattended, without medical attention. Only at midnight was he taken to the hospital for treatment; he received stitches to the head and was discharged. Even after the event, and investigations into the actions of some warders, the author contends that he continued to be subjected to constant verbal intimidation and abuse. On 16 June 1990, the Jamaica Council for Human Rights wrote to London counsel, noting that the author was "badly battered as a result of the disturbances in the prison at the end of last month", and submitted a complaint before the Jamaican authorities on the author's behalf.

3.4 It is submitted that the treatment to which the author was subjected on 28 May 1990, and the inadequate medical treatment he subsequently received, as well as the continuing fear of reprisals by warders, amount to a violation of articles 7 and 10, of the Covenant. Furthermore, the above is said to be in breach of articles 21, 30 and 32 of the UN Standard Minimum Rules for the Treatment of Prisoners.

3.5 Counsel claims a violation of articles 7 and 10 on account of the prolonged detention of the author on death row, under harsh conditions, noting that the author was held on death row for well over eight years. Referring to the judgement of the Judicial Committee in Pratt and Morgan v. Attorney‑General of Jamaica, it is submitted that the agony resulting from such long awaited death amounts to cruel, inhuman and degrading treatment. As to conditions of detention on death row, counsel invokes the reports of two non‑governmental organisations on the matter. The author himself was confined to a tiny cell for twenty‑two hours every day, spending most of his waking hours isolated from other men, with nothing to keep him occupied. Much of his time is spent in enforced darkness. To counsel, these factors are sufficient in themselves to justify findings of violations of articles 7 and 10.

3.6 Counsel affirms that the author made reasonable efforts to seek domestic redress for the treatment he was subjected to on death row. By December 1993, the Office of the Director of Public Prosecutions had not confirmed that charges were pending against the warders responsible for the beatings and the death of three inmates in May 1990. For counsel, the domestic complaints' process is wholly inadequate.

The Committee's admissibility decision

4.1 During its sixty‑second session the Committee considered the admissibility of the communication.

4.2 The Committee ascertained, as required under article 5, paragraph 2 (a), of the Optional Protocol, that the same matter was not being examined under another procedure of international investigation or settlement.

4.3 The present communication was transmitted to the State party in March 1995, with a request to provide information and observations in respect of the admissibility of the author's claims. No information was received from the State party, in spite of a reminder addressed to it in October 1997. The Committee regretted the absence of cooperation on the part of the State party. In the circumstances, due weight was given to the author's allegations, to the extent that they had been sufficiently substantiated for purposes of admissibility.

4.4 As to the allegations under article 14 of the Covenant, the Committee noted that they related to the evaluation of facts and evidence in the case by the trial judge and the jury. The Committee recalled that it was generally for the appellate courts of States parties to the Covenant and not for the Committee to evaluate the facts and evidence in a particular case, unless it could be ascertained that the evaluation of evidence and the instructions to the jury were clearly arbitrary or otherwise amounted to a denial of justice. The Committee noted that the author's submissions in relation to his claim did not indicate that the trial was manifestly tainted by arbitrariness or amounted to a denial of justice. Accordingly, he had failed to substantiate his claim, for purposes of admissibility, and this part of the communication was inadmissible under article 2 of the Optional Protocol.

4.5 The Committee considered that the author had sufficiently substantiated the remaining claims relating to the circumstances of his pre‑trial detention (article 9, paragraphs 2 to 4), to beatings and intimidation he allegedly was subjected to while on death row and to the circumstances of his detention on death row. In the absence of any State party information on the availability of effective remedies which might still be available to the author in respect of these claims, the Committee considered that they warranted consideration on the merits.

States party's merits observations and the counsel's comments

5.1 In a submission dated 3 June 1998, the State party states that the author's allegation concerning articles 7 and 10 are twofold, the first being the assertion that during the disturbances of 28 May 1990 the author was badly beaten by wardens and then denied medial attention for several hours. In this respect, the State party informed the Committee: "that a Coroner's inquest was held in relation to the deaths of the three prisoners who were killed in the 1990 disturbances and that the author gave evidence at the inquest. The results thereof will be obtained and sent to the Committee."

5.2 With regard to the second allegation of violation of article 7 and 10 due to the author's prolonged detention on death row, the State party denies that there has been a breach of the Covenant and refers to the Committee's decision in Pratt and Morgan. Therefore a specific period on death row does not constitute a violation of the Covenant. The commutation of the author's death sentence was done in accordance with the requirements of domestic law.

5.3 With regard to the alleged breach of article 9, paragraphs 2, 3 and 4, due to the author having been detained for four days before being informed of the charges against him, the State party denies this, since it claims that according to its investigations the author was made aware of the nature of the charges against him at the time of his arrest. The formal charge of murder may have been laid at a later stage, however this was not detrimental to the application or constituted a violation of the author's rights.

5.4 In a further submission dated 24 August 1999 the State party, informs the Committee that with regard to the alleged beating of the author by warders on 28 May 1990, when the author was interviewed by the Ministry he could not recall the names of the warders who were involved in the beatings incident. He said he could only recall that one of the warders was called "Big Six". On enquiry it was ascertained that "Big Six" no longer works with the prison. Furthermore the Superintendent at the time (nine years ago) has since retired. In the absence of names the Ministry was unable to conduct a meaningful investigation.

5.5 In the same submission the State party contends that the author during his interview with the Ministry, admitted that he was the main architect behind the riots of 1990 and that on reflection if the warders had not used force to subdue the inmates, the result would have been far worse.

5.6 The State party also contends that the author was not denied medical treatment in 1990, as he alleged in his petition . He was seen on several different occasions by the Prison medical officer and received medical attention from the Spanish Town Hospital and Health Clinic. The State party consequently denies that there has been any breach of article 7 and 10 in respect to medical treatment.

5.7 With respect to the allegations of violation of the Covenant due to the conditions of detention while on death row including counsel's allegation that the author spent 22 hours in enforced darkness etc (see para.3.5 supra) the State party refers to the Committee's jurisprudence to deny any violation of the Covenant.

6.1 By submission dated 4 November 1998, counsel states that the State party has in no way negated the author's allegation that he was subjected to ill‑treatment on 28 May 1990 and was subsequently denied adequate treatment; and that he continually feared reprisals from the wardens. Counsel contends that the State party has failed to provide any evidence to rebut the author's allegations as contained in the compliant of 15 February 1995, and consequently maintains that a violation of articles 7 and 10 of the Covenant has occurred.

6.2 With regard to the allegation of a violation of articles 7 and 10 of the Covenant since the author has been held on death row for over eight years, counsel contends that the State party has

not appreciated the Committee's jurisprudence when stating that a specific period on death row does not constitute a violation of the Covenant. He submits that a period of detention on death row in excess of eight years can amount to a violation of articles 7 and 10 paragraph 1, if the author can show further compelling circumstances, reference is made to communication number 588/1994 para.8.1. Counsel respectfully reminds the Committee that during his detention on death row the author, was confined to a tiny cell for 22 hours everyday, most of his waking hours isolated from other men with nothing whatsoever to keep him occupied. To add to his humiliation and the insult to his dignity as a human being, the author spent most of his time in enforced darkness. Counsel contends that the State party has not denied the continued presence of these factors during the author's incarceration on death row and merely asserted that prolonged judicial proceedings do not per se constitute cruel, inhuman or degrading treatment.

6.3 With regard to the State party's challenge of a violation of article 9, paragraphs 2, 3 and 4, in that the author was not promptly informed of the charges against him counsel reiterates that the author was not aware at the time of his arrest of the charges against him. He claims that the State party has failed to provide any particulars as to the nature of the investigations conducted nor has it disclosed either to the Committee or to the author the results of the investigation. Counsel maintains that the author was held in custody for four days incommunicado before being told that he was being charged for murder. He contends that the State party does not deny the allegations but merely says that it was not to the detriment of the author as he was aware of the nature of the charges against him at the time of his arrest. Counsel further contends that no compelling evidence was called at trial or has subsequently been provided by the State party to explain the delay of four days between the author's detention and the investigating officer managing to speak to him. Counsel reiterates that such a delay constitutes a violation of the Covenant.

Examination of the merits

7.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided for in article 5, paragraph 1, of the Optional Protocol.

7.2 With regard to the author's complaints of ill‑treatment while in detention at St. Catherine's District Prison, the Committee notes that the author has made very precise allegations, relating to the incidents where he was beaten (paragraph 3.3 supra). The Committee notes the State party's information, that an enquiry had taken place to investigate the 1990 disturbances in which three prisoners had died, and that the author gave evidence at that enquiry. It also notes the information provided in the further submission whereby the State party contended that at the interview with the author, carried out by the Ministry, he had been unable to provide sufficient information on the names of the persons who had beaten him and those names that he had provided were of persons who either no longer worked in the prison or had retired. The State party, consequently, considered that no meaningful investigation could be carried out. The Committee considers that the fact that the perpetrators no longer work in the prison, in no way absolves the State party from its obligations to ensure the enjoyment of Covenant rights. The Committee notes that no investigation was undertaken by the State party in 1990 after the Jamaica Council for Human Rights had submitted a complaint, to the

authorities on the author's behalf. In the absence of any refutation by the State party due weight should be given to the author's allegations. In these circumstances the author's right not to be subjected to degrading treatment but to be treated with humanity and with respect for the inherent dignity of the human person, were not respected in violation of articles 7 and 10, paragraph 1.

7.3 With regard to the conditions of detention on death row at St. Catherine's District Prison, the Committee notes that the author has made specific allegations, about the deplorable conditions of his detention. He claims that he is confined to a 2 metre square cell for 22 hours each day, and remains isolated from other men for most of the day. He spends most of his waking hours in enforced darkness and has little to keep him occupied. He is not permitted to work or to undertake education. The State party has not refuted these specific allegations. In these circumstances, the Committee finds that confining the author under such circumstances constitutes a violation of article 10, paragraph 1, of the Covenant.

7.4 The author has claimed a violation of article 9, paragraph 3, of the Covenant since there was a delay of 4 days between the time of his arrest and the time when he was brought before a judicial authority. The committee notes that the State party has not addressed this issue specifically but has simply pointed out in general terms that the author was aware of the reasons for his arrest. The Committee reiterates its position that the delay between the arrest of an accused and the time before he is brought before a judicial authority should not exceed a few days. In the absence of a justification for a delay of four days before bringing the author to a judicial authority the Committee finds that this delay constitutes a violation of article 9, paragraph 3, of the Covenant.

7.5 The author also has claimed a violation of article 9, paragraphs 2 and 4, since he was not promptly informed of the charges against him at the time of his arrest. Article 9, paragraph 2, of the Covenant gives the right to everyone arrested to know the reasons for his arrest and to be promptly informed of the charges against him. Counsel contends that the author was not informed of the charges against him until four days after his arrest. The Committee notes the State party's contention that the author was aware of the reasons for his arrest in general terms even if the formal charges for murder were only laid against him four days after his arrest. It also notes information provided by counsel where in an affidavit signed by the author on 4 May 1988, he states he was arrested and charged with murder on 1 September 1985. Furthermore, the Committee notes that this issue was not brought to the attention of the Courts in Jamaica. On the basis of the information before it the Committee concludes that the author was aware of the reasons for his arrest and consequently there has been no violation of the Covenant in this respect. The Committee has not found any facts that substantiate a violation of article 9, paragraph 4.

8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 7, 10, paragraph 1, and 9 paragraph 3, of the Covenant.

9. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Mr. Freemantle with an appropriate and effective remedy. The State party is under an obligation to ensure that similar violations do not occur in the future.

10. On becoming a State party to the Optional Protocol, Jamaica recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not. This case was submitted for consideration before Jamaica's denunciation of the Optional Protocol became effective on 23 January 1998; in accordance with article 12(2) of the Optional Protocol it continues to be subject to the application of the Optional Protocol. Pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals with its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established. The Committee wishes to receive from the State party, within ninety days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

B. Communication No. 631/1995, Spakmo v. Norway

(Views adopted on 5 November 1999, sixty‑seventh session)*

Submitted by:	Aage Spakmo (initially represented by Mr. Gustav Hogtun)

Alleged victim:	The author

State party:	Norway

Date of communication:	28 November 1994 (initial submission)

Date of admissibility decision:	20 March 1997

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 5 November 1999,

Having concluded its consideration of communication No. 631/1995 submitted to the Human Rights Committee by Mr. Aage Spakmo under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication, his counsel and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The author of the communication, dated 28 November 1994, is Aage Spakmo, a Norwegian citizen, born on 21 October 1921. He claims to be the victim of violations by Norway of article 9 of the International Covenant on Civil and Political Rights.**

* Thefollowing members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra N. Bhagwati, Ms. Christine Chanet, Lord Colville, Ms. Elizabeth Evatt, Mr. Eckart Klein, Mr. David Kretzmer, Ms. Cecilia Medina Quiroga, Mr. Fausto Pocar, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski and Mr. Maxwell Yalden. The text of one individual opinion signed by six members is appended to this document.

** Mr. Spakmo was represented by Mr. Gustav Hogtun until June 1999.

2. At its fifty‑ninth session, the Human Rights Committee considered the admissibility of the communication and found that all domestic remedies had been exhausted and that the same matter was not being examined under another procedure of international investigation or settlement. It considered that the author had sufficiently substantiated, for purposes of admissibility, that he had been arbitrarily detained. Accordingly, on 20 March 1997, the Committee decided that the communication was admissible.

The facts

2.1 The author was commissioned, in July 1984, by a landlord, one Finn Grimsgaard, to carry out repairs on a building, including the demolition and replacement of three balconies. Work commenced on 23 July 1984. Two tenants applied for an injunction from the Tenancy Disputes Court until such time as the owner guaranteed that the balconies would be restored to their original appearance; the injunction was granted on 25 July 1984. According to the author, he then contacted the judge of the Tenancy Disputes Court to ascertain how to proceed and was informed that the owner could either request an oral negotiation in court or that the municipal building authorities issue a ruling authorizing the demolition of the balconies. In the morning of Friday 27 July 1984, a municipal inspector, Per M. Berglie (since deceased), examined the building together with the author. The author states that the building inspector gave an oral order to continue with the demolition.

2.2 The author reinitiated the work later on 27 July 1984. After having received a complaint from one of the tenants in the building, the police arrived at the site for inspection at 10.30 p.m. The police was of the opinion that the work was disturbing the peace in the neighbourhood, and verbally ordered the author to stop his work. The author refused to do so and claimed that he was working legally. After repeatedly having been ordered to stop his activities, the superintendent on duty ordered the author's arrest. He was arrested around 11.00 p.m., and released one hour later.

2.3 The next day, the author continued with his demolition activities. Again, the police ordered him to stop, which the author refused. Around 2.25 pm he was arrested and brought to the police station from where he was released eight hours later. On Tuesday 31 July 1984, the building authorities issued a written demolition order for the balconies.

2.4 On 23 September 1986, the author instituted proceedings before the Oslo City Court (Oslo Byrett) claiming damages and compensation for non‑pecuniary damages on the grounds that the arrests of 27 and 28 July 1984 had been unlawful. The hearing took place on 1 September 1989; the Court dismissed the author's claim on 4 October 1989. On 15 December 1989 the author appealed the judgement to the Eidsivating High Court. The appeal was heard on 7 October 1992; judgement was pronounced on 20 October 1992. On 23 December 1992, the author appealed to the Supreme Court. On 14 January 1993 the Interlocutory Committee of the Supreme Court decided not to allow the appeal as it had no prospect of succeeding. On 22 June 1994, the author requested the Supreme Court to reopen his case; the petition was rejected on 2 September 1994.

The complaint

3. The author claims to be a victim of a violation of article 9, paragraph 1, of the Covenant in that he was arbitrarily arrested, since his arrest was not on such grounds and in accordance with such procedures as established by law. In this respect, counsel alleges that the police exceeded their competence in that they enforced a temporary order between two parties in a civil suit, acting on information received by a high‑ranking officer from a friend who was one of the parties in the civil suit. The author was not party to that suit and could therefore only be detained if so ordered by a judicial authority. Norwegian law provides for a special authority (namsmenn, the head of which in Oslo is the byfogd) to implement civil decisions; the police may only intervene at the request of the mentioned authority. Counsel states that the police and later the Government shifted the burden of proof in demanding that the author prove in writing that he had been authorized to carry out the work at the time when he was arrested. This, counsel contends, is in breach of Norwegian law, as it was the police who had to prove that they had the legal right to act against the author in the manner they did, interfering with his liberty. Furthermore, his arrest was not on such grounds or in accordance with such procedures as established by law, since it was based on the decision of the Tenancy Disputes Court, between the two tenants and the landlord; counsel contends that the decision is not applicable to a third party.

State party's observations

4.1 The State party refers to the procedure before the local courts, during which the courts found that there was no evidence that an oral order was given to the author by the building authorities to continue the demolition of the balconies. Consequently, at the material time the injunction given by the Tenancy Disputes Court prohibiting further demolition of the balconies was operative. Section 343 of the Penal Code makes it a criminal offence to act or to be accessory to an act against a legally imposed prohibition. The author should thus have respected the injunction, and his failing to do so constituted a criminal offence. Moreover, it appears from the police reports that the author was ordered on several occasions to stop the demolition. Because of his failure to comply, he was arrested. The records of the arrest show that the author was arrested for violating section 3 of the police bylaws in conjunction with section 339 (2) of the Penal Code.

4.2 As to counsel's argument that the police had no competence to arrest the author, because it concerned a civil dispute, the State party explains that the police was acting under the Criminal Procedure Act, since the author did not stop committing criminal acts when ordered. The law on the legal enforcement of decisions in civil cases is thus not relevant in the present case. As to counsel's argument that the author was arrested because a high ranking police officer acted on information received from a friend who was a party in the civil suit, the State party refers to the records of the court hearing, which show that the police officer in question was no friend of any of the parties in the civil suit, but that he indeed remembered to have received a communication from one of the parties. He did not remember whether he had acted on the basis of the information received, but did not exclude the possibility. According to the State party, there is nothing improper or unlawful about the police acting upon information received from the public.

The State party concludes that the author's arrest was lawful under Norwegian law. It notes that the author, when bringing his case to the courts, never challenged the lawfulness of his detention other than by arguing that he had received an oral order to continue the work. The Courts held that the police acted lawfully.

4.3 In the State party's opinion, the author's detention was also necessary. It notes that the first detention lasted for one hour and the second for eight hours and argues that this cannot be deemed disproportionate. In this connection, the State party refers to the circumstances of the author's arrest, which show that the author refused to cooperate with the police and continued his demolition work even when ordered repeatedly to stop it.

4.4 The State party concludes that no violation of article 9 has occurred.

Counsel's comments

5.1 In his comments on the State party's submission, counsel recalls that the injunction in favour of the tenants of the building was cancelled the Tuesday following the author's arrest. In the circumstances, the author who claimed to have received an oral order by the building authorities to proceed with the demolition, should not have been arrested by the police. In this connection, counsel submits that the author had been informed by the judge of the Tenancy Dispute Court that an order by the building authorities would overrule the injunction. The author then contacted a police officer on Friday morning and informed her that he had oral permission from the building inspector to continue the demolition of the balconies. The police failed to verify this information and instead went on to arrest the author. Counsel maintains that the police's actions were in violation of the regulations governing the police since the author's activities did not constitute a serious disturbance of public order or great danger for the public. According to counsel, the author acted out of a social and moral duty, in order to avoid danger for the public. His arrest cannot be said to have been necessary.

5.2 Moreover, counsel reiterates that it is not for the police to get involved in a civil dispute, unless specifically called for by the relevant authorities, which was not so in the present case. He suggests that one of the reasons why the police immediately acted following a telephone call from one of the tenants was that the author had had problems with the police in the past. Counsel further states that article 343 of the Penal Code requires that the accused has acted with intent ‑ and argues that there was never any intent on the part of the author to commit a criminal act. He argues that the fact that the police never brought a case against the author for violating article 343 shows that they knew he was not guilty.

Issues and proceedings before the Committee

6.1 The Human Rights Committee has considered the present communication in the light of all the written information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol.

6.2 The question before the Committee is whether the author's arrest was in violation of article 9 of the Covenant. The author has argued that there was no legal basis for his arrest and that the police was exceeding its competence when detaining him. The Committee has noted the State party's explanations in this respect and has examined the Courts' decisions. On the basis of the information before it, the Committee concludes that the author was arrested in accordance with Norwegian law and that his arrest was thus not unlawful.

6.3 The Committee recalls that for an arrest to be in compliance with article 9, paragraph 1, it must not only be lawful, but also reasonable and necessary in all the circumstances. In the instant case, it is not disputed that on Friday 27 July 1984, the police ordered the author several times to stop the demolition, that the hour was 10.30 pm and that the author refused to comply. In the circumstances, the Committee considers that the author's arrest on Friday 27 July 1984 was reasonable and necessary in order to stop the demolition, which the police considered unlawful and a disturbance of the peace in the neighbourhood. The author's arrest of the next day was again a result of him refusing to follow the orders of the police. While accepting that the author's arrest by the police also on Saturday may have been reasonable and necessary, the Committee considers that the State party has failed to show why it was necessary to detain the author for eight hours in order to make him stop his activities. In the circumstances, the Committee finds that the author's detention for eight hours was unreasonable and constituted a violation of article 9, paragraph 1, of the Covenant.

7. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 9, paragraph 1, of the International Covenant on Civil and Political Rights.

8. Under article 2, paragraph 3(a), of the Covenant, the State party is under the obligation to provide Mr. Spakmo with an effective remedy, including compensation. The State party is under an obligation to take measures to prevent similar violations in the future.

9. Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within ninety days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

C. Communication No. 666/1995, Foin v. France

(Views adopted on 3 November 1999, sixty‑seventh session)*

Submitted by:	Frédéric Foin (represented by François Roux, lawyer in France)
Alleged victim:	The author
State party:	France
Date of communication:	20 July 1995 (initial submission)
Date of admissibility decision:	11 July 1997

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 3 November 1999,

Having concluded its consideration of communication No. 666/1995 submitted to the Human Rights Committee by Mr. Frédéric Foin under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication, his counsel and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The author of the communication is Frédéric Foin, a French citizen born in September 1966 and living in Valence, France. He claims to be a victim of violations by France of articles 18, 19 and 26, juncto article 8, of the International Covenant on Civil and Political Rights. The author is represented by Mr. François Roux of Roux, Lang‑Cheymol, Canizares, a law firm in Montpellier.

* Thefollowing members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra N. Bhagwati, Lord Colville, Ms. Elizabeth Evatt, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Fausto Pocar, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski and Mr. Maxwell Yalden. Pursuant to rule 85 of the Committee's rules of procedure Ms. Christine Chanet did not participate in the examination of the case. The text of one individual opinion signed by three members is appended to this document.

The facts as submitted by the author

2.1 The author, a recognized conscientious objector to military service, was assigned to civilian service duty in the national nature reserve of Camargue in December 1988. On 23 December 1989, after exactly one year of civilian service, he left his duty station; he invoked the allegedly discriminatory character of article 116, paragraph 6, of the National Service Code (Code du service national), pursuant to which recognized conscientious objectors were required to perform civilian national service duties for a period of two years, whereas military service did not exceed one year.

2.2 As a result of his action, Mr. Foin was charged with desertion in peacetime before the Criminal Court (Tribunal Correctionel) of Marseille, under articles 398 and 399 of the Code of Military Justice. The challenge to his conviction in a default judgement pronounced on 12 October 1990 led to a new hearing on 20 March 1992 before the Court, which gave him an eight month suspended prison sentence and ordered the withdrawal of his conscientious objector status (art. 116 (4) of the National Service Code). The Court rejected the author's arguments based in particular on articles 4 (3) (b), 9, 10 and 14 of the European Convention on Human Rights.

2.3 The Court's decision was appealed both by the State Prosecutor (Procureur de la République) and by the author. By a judgement of 18 December 1992, the Court of Appeal of Aix‑en‑Provence quashed the judgement of 20 March 1992 for misdirection. Notwithstanding, and deciding on the merits of the case, the Court of Appeal found Mr. Foin guilty of the offence of desertion in peacetime and gave him a six month suspended prison sentence.

2.4 On 14 December 1994, the Court of Cassation rejected the author's further appeal. The Court held that the relevant provisions of the European Convention on Human Rights and of the International Covenant on Civil and Political Rights did not prohibit measures requiring conscientious objectors to perform a longer period of national service than persons performing military service, provided the enjoyment or exercise of their fundamental rights and freedoms was not affected.

The complaint

3.1 According to the author, article 116 (6) of the National Service Code (in its version of July 1983 prescribing a period of 24 months for civilian service) violates articles 18, 19 and 26, juncto article 8, of the Covenant in that it doubles the duration of alternative services for conscientious objectors in comparison with military service.

3.2 While acknowledging the Committee's views on communication No. 295/1988, where it had been held, in a similar case, that an extended length of alternative service in comparison with military service was neither unreasonable nor punitive, and where no violation of the Covenant had been found, the author refers to the individual opinions appended to those views by three Committee members, who had concluded that the legislation under challenge was not based on reasonable or objective criteria, such as a more severe type of service or the need for special training in order to perform the longer service. The author endorses the conclusions of those individual opinions.

3.3 The author notes that under articles L.116 (2) to L.116 (4) of the National Service Code, each application for recognition as a conscientious objector has to be approved by the Minister for the Armed Forces. If he rejects the application, an appeal to the Administrative Tribunal is possible under article L.116 (3). In such circumstances, the author argues, it cannot be assumed that the length of civilian service was fixed for reasons of administrative convenience, since anyone accepting to perform civilian service twice as long as military service should be deemed to have genuine convictions. Rather, the length of civilian service must be deemed to have punitive elements, which are not based on any reasonable or objective criterion.

3.4 In support of his contention, the author invokes a judgement of the Italian Constitutional Court of July 1989, which held that civilian service lasting eight months longer than military service was incompatible with the Italian Constitution. He further points to a resolution adopted by the European Parliament in 1967 in which, on the basis of article 9 of the European Convention on Human Rights, it has been suggested that the duration of alternative service should not exceed that of military service. Moreover, the Committee of Ministers of the Council of Europe has declared that alternative service must not be of a punitive nature and that its duration, in relation to military service, must remain within reasonable limits (Recommendation No. R(87)8 of 9 April 1987). Finally, the author notes that the United Nations Commission on Human Rights has declared, in a resolution adopted on 5 March 1987, that conscientious objection to military service constituted a legitimate exercise of the right to freedom of thought, conscience and religion, as recognized by the Covenant.

3.5 In any event, according to the author, the requirement to perform civilian service that is twice as long as military service constitutes prohibited discrimination on the basis of opinion, and the possibility of imprisonment for refusal to perform civilian service beyond the length of time of military service violates articles 18, paragraph 2, 19, paragraph 1, and 26 of the Covenant.

The State party's observations on admissibility and the author's comments thereon

4.1 The State party contends firstly that the communication is incompatible ratione materiae with the provisions of the Covenant since, on the one hand, the Committee has acknowledged in its decision on communication No. 185/1984 (L.T.K. v. Finland) that "the Covenant does not provide for the right to conscientious objection; neither article 18 nor article 19 of the Covenant, especially taking into account paragraph 3 (c) (ii) of article 8, can be construed as to imply that right" and since, on the other hand, by virtue of article 8, paragraph 3 (c) (ii) of the Covenant, the internal regulation of national service, and therefore of conscientious objector status for those States which recognize it, does not fall within the scope of the Covenant and remains a matter for domestic legislation.

4.2 Subsidiarily, the State party contends that the author does not qualify as a victim. With regard to articles 18 and 19 of the Covenant, the State party claims that by recognizing conscientious objector status and offering conscripts a choice as to the form of their national service, it allows them to opt freely for the national service appropriate to their beliefs, thus enabling them to exercise their rights under articles 18 and 19 of the Covenant. In this connection, the State party concludes, referring to the decision on communication No. 185/1984

cited above, that as the author was not prosecuted and sentenced because of his beliefs or opinions as such, but because he deserted his assigned service, he cannot therefore claim to be a victim of a violation of articles 18 and 19 of the Covenant.

4.3 With regard to the alleged violation of article 26 of the Covenant, the State party, noting that the author complains of a violation of this article because the length of alternative civilian service is double that of military service, submits first of all that "the Covenant, while prohibiting discrimination and guaranteeing equal protection of the law to everyone, does not prohibit all differences of treatment", which must be "based on reasonable and objective criteria". The State party stresses that the situation of conscripts performing alternative civilian service differs from that of those performing military service, notably in respect of the heavier constraints of service in the army. The State party quotes the Committee's views on communication No. 295/1988 (Järvinen v. Finland), where the Committee held that the 16 month period of alternative service imposed for conscientious objectors ‑ double the 8‑month period of military service ‑ was "neither unreasonable nor punitive". The State party therefore concludes that the difference of treatment complained of by the author is based on the principle of equality, which requires different treatment of different situations.

4.4 For all of these reasons, the State party requests the Committee to declare the communication inadmissible.

5.1 Concerning the State party's first argument as to the Committee's competence ratione materiae, the author cites the Committee's General Comment on article 18, where it is stated that the right to conscientious objection "can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief. When this right is recognized by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs; likewise, there shall be no discrimination against conscientious objectors because they have failed to perform military service". According to the author, it is clear from these comments that the Committee is competent to determine whether or not there has been a violation of the right to conscientious objection under article 18 of the Covenant.

5.2 Concerning the alleged violation of article 26, the author claims that requiring a period of alternative civilian service twice the length of military service constitutes a difference of treatment which is not based on "reasonable and objective criteria" and therefore constitutes discrimination prohibited by the Covenant (communication No. 196/1985 cited above). In support of this conclusion, the author argues that there is no justification for making alternative civilian service twice the length of military service; in fact, unlike in the Järvinen case (communication No. 295/1988 cited above), the longer duration is not justified by any relaxation of the administrative procedures for obtaining conscientious objector status since, under articles L.116 (2) and L.116 (4) of the National Service Code, applications for conscientious objector status are subject to approval by the Minister for the Armed Forces. Nor is it justified in the general interest. Furthermore, conscientious objectors derive no benefit or privilege from their status ‑ unlike, for example, persons assigned to perform international cooperation services instead of military service, who have the opportunity to work abroad in a professional field

corresponding to their university qualifications for 16 months (i.e. four months less than the civilian service for conscientious objectors) ‑ and a difference of treatment is not, therefore, justified on that ground.

The Committee's admissibility decision

6.1 At its sixtieth session, the Committee considered the admissibility of the communication.

6.2 The Committee took note of the State party's arguments concerning the incompatibility of the communication ratione materiae with the provisions of the Covenant. In this regard, the Committee considered that the matter raised in the communication did not concern a violation of the right to conscientious objection as such. The Committee considered that the author had sufficiently demonstrated, for the purposes of admissibility, that the communication might raise issues under provisions of the Covenant.

7. Accordingly, on 11 July 1997 the Committee decided that the communication was admissible.

State party's observations on the merits of the communication

8.1 By submission of 8 June 1998, the State party argues that the communication should be rejected because the author has failed to show that he is a victim, and because his complaints are ill‑founded.

8.2 According to the State party, article L.116 of the National Service Code in its version of July 1983 instituted a genuine right to conscientious objection, in the sense that the sincerity of the objections is said to be shown by the request alone, if presented in accordance with the legal requirements (that is, motivated by an affirmation of the applicant that he has personal objections to using weapons). No verification of the objections took place. To be admissible, requests had to be presented on the 15th of the month preceding the incorporation into the military service. Thus a request could only be rejected if it was not motivated or if it was not presented in time. A right to appeal existed to the administrative tribunal.

8.3 Although the normal length of military service since January 1992 in France was 10 months, some forms of national service lasted 12 months (military service of scientists) and 16 months (civil service of technical assistance). The length of the service for conscientious objectors was 20 months. The State party denies that the length has a punitive or discriminatory character. It is said to be the only way to verify the seriousness of the objections, since the objections were no longer tested by the administration. After having fulfilled their service, conscientious objectors have the same rights as those who have finished civil national service.

8.4 The State party informs the Committee that on 28 October 1997 a law was adopted to reform the national service. Under this law, all young men and women will have to participate between their 16th and 18th birthday in a one day call‑up to prepare for defence. Optional voluntary service can be done for a duration of 12 months, renewable up to 60 months. The new law is applicable to men born after 31 December 1978 and women born after 31 December 1982.

8.5 According to the State party, its system of conscientious objection as applied to the author, was in accordance with the requirements of articles 18, 19 and 26 of the Covenant, and with the Committee's general comment No. 22. The State party submits that its regime for conscientious objection did not make any difference on the basis of belief, and no process of verification of the motivation of applicants occurred, such as takes place in many neighbouring countries. No discrimination existed against conscientious objectors, as their service was a recognised form of the national service, on equal footing with military service or other forms of civil service. In 1997, just under 50 per cent of those performing civil service were doing this on the basis of conscientious objections to military service.

8.6 The State party submits that the author of the present communication has not at all been discriminated on the basis of his choice to perform national service as a conscientious objector. It notes that the author was convicted for not complying with his obligations under the civil service freely chosen by him and that he never before objected to the duration of the service. His conviction was thus not because of his personal beliefs, nor on the basis of his choice for alternative civil service, but on the basis of his refusal to respect the conditions of that type of service. In this context, the State party notes that it would have been open to the author to choose another form of unarmed national service, such as one of technical assistance. On this basis, the State party argues that the author has not established that he is a victim of a violation by the State party.

8.7 Subsidiarily, the State party argues that the author's claim is ill‑founded. In this context, the State party recalls that according to the Committee's own jurisprudence, not all differences in treatment constitute discrimination, as long as they are based on reasonable and objective criteria. In this context, the State party refers to the Committee's Views in case No. 295/1988 (Järvinen v. Finland), where the service for conscientious objectors was 16 months and that for other conscripts 8 months, but the Committee found that no violation of the Covenant had occurred because the length of the service ensured that those applying for conscientious objector status would be serious, since no further verification of the objections took place. The State party submits that the same reasoning should apply to the present case.

8.8 In this context, the State party also notes that the conditions of the alternative civil service were less onerous than that of military service. The conscientious objectors had a wide choice of posts. They could also propose their own employer and could do their service within their professional interest. They also received a higher payment than those serving in the armed forces. In this context, the State party rejects counsel's claim that the persons performing international cooperation service received privileged treatment vis à vis conscientious objectors, and submits that those performing international cooperation service did so in often very difficult situations in a foreign country, whereas the conscientious objectors performed their service in France.

8.9 The State party concludes that the length of service for the author of the present communication had no discriminatory character compared with other forms of civil service or military service. The differences that existed in the length of the service were reasonable and reflected objective differences between the types of service. Moreover, the State party submits that in most European countries the time of service for conscientious objectors is longer than military service.

Counsel's comments

9.1 In his comments, counsel submits that at issue are the modalities of civil service for conscientious objectors. He submits that the double length of this service was not justified by any reason of public order and refers in this context to paragraph 3 of article 18 of the Covenant which provides that the right to manifest one's religion or beliefs may be subject only to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. He also refers to the Committee's general comment No. 22 where the Committee stated that restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner. He argues that the imposition upon conscientious objectors of civil service of double length as that of the military service constitutes a discriminatory restriction, because the manifestation of a conviction such as the refusal to carry arms, does not in itself affect the public safety, order, health, or morals or the fundamental rights and freedoms of others since the law expressly recognizes the right to conscientious objection.

9.2 Counsel states that, contrary to what the State party has submitted, persons who requested status as a conscientious objector were subject to administrative verification and did not have a choice as to the conditions of service. In this context, counsel refers to the legal requirements that a request had to be submitted before the 15th of the month of incorporation into the military service, and that it had to be motivated. Thus, the Minister for the Armed Forces might refuse a request and no automatic right to conscientious objector status existed. According to counsel, it is therefore clear that the motivation of the conscientious objector was being tested.

9.3 Counsel rejects the State party's argument that the author himself had made an informed choice as to the kind of service he was going to perform. Counsel emphasizes that the author made his choice on the basis of his conviction, not on the basis of the length of service. He had no choice in the modalities of the service. Counsel argues that no reasons of public order exist to justify that the length of civil service for conscientious objectors be twice the length of military service.

9.4 Counsel maintains that the length of service constitutes discrimination on the basis of opinion. Referring to the Committee's Views in communication No. 295/1988 (Järvinen v. Finland), counsel submits that the present case is to be distinguished, since in the earlier case the extra length of service was justified, in the opinion of the majority in the Committee, by the absence of administrative formalities in having the status of conscientious objector recognized.

9.5 As far as other forms of civil service are concerned, especially those doing international cooperation service, counsel rejects the State party's argument that these were often performed in difficult conditions and on the contrary, asserts that this service was often fulfilled in another European country and under pleasant conditions. Those performing the service moreover built up a professional experience. According to counsel, the conscientious objector did not draw any benefit from his service. As regards the State party's argument that the extra length of service is a test for the seriousness of a person's objections, counsel argues that to test the seriousness of conscientious objectors constitutes in itself a flagrant discrimination, since those who applied for another form of civil service were not being subjected to a test of their sincerity. With regard to the advantages mentioned by the State party (such as no obligation to wear a uniform, not being under military discipline), counsel notes that the same advantages were being enjoyed by those performing other kinds of civil service and that these did not exceed 16 months. With regard to the State party's argument that the conscientious objectors received a higher pay than those performing military service, counsel notes that they worked in structures where they were treated as employees and that it was thus normal that they would receive a certain remuneration. He states that the pay was little in comparison with the work done and much less than that received by normal employees. According to counsel, those performing cooperation service were better paid.

Issues and proceedings before the Committee

10.1 he Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1 of the Optional Protocol.

10.2 The Committee has noted the State party's argument that the author is not a victim of any violation, because he was not convicted for his personal beliefs, but for deserting the service freely chosen by him. The Committee notes, however, that during the proceedings before the courts, the author raised the right to equality of treatment between conscientious objectors and military conscripts as a defence justifying his desertion and that the courts' decisions refer to such claim. It also notes that the author contends that, as a conscientious objector to military service, he had no free choice in the service that he had to perform. The Committee therefore considers that the author qualifies as a victim for purposes of the Optional Protocol.

10.3 The issue before the Committee is whether the specific conditions under which alternative service had to be performed by the author constitute a violation of the Covenant. The Committee observes that under article 8 of the Covenant, States parties may require service of a military character and, in case of conscientious objection, alternative national service, provided that such service is not discriminatory. The author has claimed that the requirement, under French law, of a length of 24 months for national alternative service, rather than 12 months for military service, is discriminatory and violates the principle of equality before the law and equal protection of the law set forth in article 26 of the Covenant. The Committee reiterates its position that article 26 does not prohibit all differences of treatment. Any differentiation, as the Committee has had the opportunity to state repeatedly, must however be based on reasonable and objective criteria. In this context, the Committee recognizes that the law and practice may establish differences between military and national alternative service and that such differences may, in a particular case, justify a longer period of service, provided that the differentiation is based on reasonable and objective criteria, such as the nature of the specific service concerned or the need for a special training in order to accomplish that service. In the present case, however, the reasons forwarded by the State party do not refer to such criteria or refer to criteria in general terms without specific reference to the author's case, and are rather based on the argument that doubling the length of service was the only way to test the sincerity of an individual's convictions. In the Committee's view, such argument does not satisfy the requirement that the difference in treatment involved in the present case was based on reasonable and objective criteria. In the circumstances, the Committee finds that a violation of article 26 occurred, since the author was discriminated against on the basis of his conviction of conscience.

11. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political rights, is of the view that the facts before it disclose a violation of article 26 of the Covenant.

12. The Human Rights Committee notes with satisfaction that the State party has changed the law so that similar violations will no longer occur in the future. In the circumstances of the present case, the Committee considers that the finding of a violation constitutes sufficient remedy for the author.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

D. Communication No. 682/1996, Westerman v. The Netherlands

(Views adopted on 3 November 1999, sixty‑seventh session)*

Submitted by:	Paul Westerman (represented by E. Th. Hummels, legal counsel)
Alleged victim:	The author
State party:	The Netherlands
Date of communication:	22 November 1995
Date of admissibility decision:	16 October 1997

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 3 November 1999,

Having concluded its consideration of communication No.682/1996 submitted to the Human Rights Committee on behalf of Paul Westerman, under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication, his counsel and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The author of the communication is Paul Westerman, a Dutch citizen, born on 25 January 1961. He claims to be a victim of a violation by the Netherlands of articles 15 and 18 of the Covenant. He is represented by Mr. E. Th. Hummels, legal counsel.

Facts as submitted

2.1 The author states that he has conscientious objections to military service, but that his application to be recognized as a conscientious objector under the Wet Gewetensbezwaarden

* Thefollowing members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra N. Bhagwati, Ms. Elizabeth Evatt, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Ms. Cecilia Medina Quiroga, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski, Mr. Maxwell Yalden and Mr. Abdallah Zakhia. The text of two dissenting individual opinions, signed by six Committee members is appended to the present document.

Militaire Dienst (Military Service (Conscientious Objections) Act) was refused by the Dutch

authorities. The author's appeals against the refusal were dismissed by the Minister of Defence, and subsequently the Raad van State (Council of State). As a result, the author became eligible for military service.

2.2 In the beginning of his military service, on 29 October 1990, the author was told by a military officer to put on a uniform, which he refused. The author stated that he refused any sort of military service because of his conscientious objections. Although the officer reminded him that insubordination is a criminal offence, the author persisted in refusing any military orders.

2.3 On 22 November 1990 the case was considered by the Arrondissementskrijgsraad (military tribunal) of Arnhem on the basis of article 114 of the Wetboek van Militaire Strafrecht (Military Penal Code) which stated that

"The military who refuses or intentionally fails to obey any official order, or who on his own initiative oversteps such an order, will be punished with a sentence of imprisonment of maximum one year and nine months, for being guilty of intentional disobedience.

"... the maximum of the punishment will be doubled if:

1. the perpetrator intentionally persists in his disobedience, after a superior has pointed out that his behaviour is punishable.

2. …."

2.4 On 1 January 1991, new legislation concerning military administration of justice entered into force. The new article 139 of the Military Penal Code states that

"1. The military who refuses or intentionally fails to perform any duty, of whatever nature, will be punished with a prison sentence of maximum two years or a fine in the fourth category.

"2. ..."

2.5 Upon summons by the Prosecutor and in accordance with the new legislation, the author was then tried for having refused military service in breach of article 139 of the Military Penal Code by the District Court of Arnhem. On 19 March 1991 the District Court of Arnhem declared the case against the author inadmissible, on the grounds that article 139 entered into force only after the refusal to serve by the author, and that there was no equivalent legal provision before that date criminalizing the refusal of all military service.

2.6 On appeal filed by the prosecutor, the Court of Appeal (Gerechtshof) of Arnhem, by judgment of 14 August 1991, found that, at the time of the incident in October 1990, the total refusal of any military service was made a criminal offence by the former article 114 of the Military Penal Code. The Court of Appeal pointed out that the different formulation of the new article 139 of the Military Penal Code was not based on a changed view of the criminality of the conduct in question. The Court of Appeal further stated that the conscientious objections of the author were no reason for acquittal, noting that his objections had already been considered in the procedures concerning his application for recognition as a conscientious objector and rejected. The Court sentenced the author to nine months of imprisonment.

2.7 The author filed an appeal in cassation to the Hoge Raad (Supreme Court). On 24 November 1992, the Supreme Court confirmed the judgment of the Court of Appeal and rejected the author's appeal in cassation. With this, it is submitted, all domestic remedies have been exhausted.

The complaint

3.1 The author's conviction is said to constitute a violation of articles 15 and 18 of the Covenant. In this context, counsel argues that the Government's note of explanation, when introducing the new article 139 in Parliament, shows that the main purpose of the new article was to criminalize the attitude of the "total objector", not the mere fact of not following an order. Counsel explains that prior to the introduction of the (new) article 139, the fact that someone refused all military service could only be considered in the severity of the sentence, but that with the (new) article 139 the total refusal of military service has become a material element of the offence.

3.2 The author further states that he is of the opinion that the nature of the military is in conflict with the moral destination of man. The failure of the courts to treat the author's conscientious objections against military service as a justification for his refusal to perform military service, and to acquit the author, is said to constitute a violation of article 18 of the Covenant.

The Committee's admissibility decision

4. On 9 May 1996, the State party informed the Committee that it had no objection to the admissibility of the communication.

5. On 16 October 1997, the Committee noted that no obstacles to admissibility existed and considered that the issues raised by the communication should be considered on its merits.

State party's observations

6.1 By submission of 12 May 1998, the State party recalls the facts of the case and cites the conclusions by the Supreme Court when dismissing the author's appeal in cassation:

"The Appeal Court expressed its opinion that the act at issue ‑the refusal to wear military uniform as an expression of a general refusal to do military service ‑was an offence, at the time it was committed, under article 114 of the old Military Criminal Code, just as it is an offence under current law as defined in article 139 of the new Military Criminal Code. It cannot be said that in so doing the Appeal court took an incorrect view of article 1 of the Criminal Code or that its judgement was not furnished with sufficient reasons."

... "The statement of grounds for appeal overlooks the obstacle to a defence claiming immunity from criminal liability on grounds of conscientious objections against any form of military service, namely that the procedure for recognition of such objections is fully regulated in the Military Service (Conscientious Objectors) Act."

6.2 The State party argues that there has been no violation of article 15 in the author's case. It observes that the nulla poena principle implies that a person knows in advance that the act he is about to commit is an offence under statute law. The author knew or could have known that refusal to put on a military uniform as expression of a refusal to perform military service was an offence under the Military Criminal Code.

6.3 Secondly, the State party points out that the legislative amendment at issue in this case was not inspired by a changed view as to whether the act in question merited punishment. It recalls that article 114 of the old Military Criminal Code criminalized failure to obey military orders, and that article 139 of the new code criminalizes refusal or deliberate failure to perform any military duty whatsoever. It explains that this amendment formed part of a series of legislative amendments aimed at drawing a sharp distinction between criminal and disciplinary military law. Under the new legislation, the only acts defined as criminal offences are those representing contraventions of the primary purpose of the armed forces. All other contraventions have been brought within the compass of disciplinary law. Accordingly, criminal law is no longer applicable to the simple failure to perform a duty. Total refusal to perform military service, however, continued to be a criminal offence and is now covered by article 139. According to the State party, the new article was thus designed for technical legislative reasons, since the previous catch‑all provision had lapsed, and did not create a new offence. Transitional law allowed for the changing of charges drawn up under the old law in order to conform with the new law. The State party observes that the maximum sentence under the new provision is lighter than the one under the old provision.

6.4 With regard to the author's claim under article 18, the State party refers to the Committee's jurisprudence, that the Covenant does not preclude the institution of compulsory military service. Under the Covenant, the question of whether States parties recognise conscientious objections to military service is expressly left to the States themselves. Thus, according to the State party, the requirement to do military service cannot render the author a victim of a violation of article 18.

6.5 With regard to the author's claim that his conscientious objections were not taken into account by the Courts, the State party notes that under Dutch law, those who have conscientious objections to performing military service, may request recognition of these objections under the Military Service (Conscientious Objections) Act. Under the Act, conscientious objections are defined as: "insurmountable objections of conscience to performing military service in person, because of the use of violent means in which one might become involved while serving in the Dutch armed forces". The author's request was denied by the Minister of Defence by decision of 25 January 1989, on the ground that the objection advanced by the author ‑ that he would not be able to take decisions for himself in the armed forces ‑ did not constitute sufficient grounds for recognition under the Act, since it was mainly concerned with the hierarchical structure of the army and not necessarily related to the use of violence. The highest administrative court rejected the author's appeal against the Minister's decision. Since the author's objections against military service were assessed by the highest administrative court, which found that they did not constitute conscientious objections under the Military Service (Conscientious Objections) Act, they could not be assessed again by the Criminal Courts. The State party argues that no violation of article 18 occurred in the author's case.

Counsel's comments

7.1 On 30 August 1998, counsel informs the Committee that the author has been imprisoned on 8 August 1998, in order to serve the prison sentence which was imposed on him by the judgement of 14 August 1991.

7.2 With regard to the State party's observations, counsel states that on 29 October 1990, the author knew that it was an offence under article 114 of the MCC to refuse to put on a military uniform. However, this article was abolished on 1 January 1991, and the author was tried after 1 January 1991. Counsel reiterates that the aim of introducing the new article 139 was to criminalize the attitude of the total objector, something that had not been punishable before. He therefore maintains that the offence created by article 139 was a new offence and not the same as the offence previously punishable by article 114.

7.3 Counsel further argues that in a country where a regulation for conscientious objections exists, the articles of the Covenant are still applicable. Counsel points out that the fact that the author's objections were not recognised as conscientious objections within the meaning of the Act, does not signify that his objections were not objections of conscience. The failure of the Criminal Courts to take his objections into account and dismiss the case against him, therefore constitutes a violation of article 18 of the Covenant, since the author has been prosecuted for reasons of conscience.

Further State party's submission

8. On 9 September 1998, the State party forwards a copy of a letter by the Minister of Justice to the author, dated 7 September 1998. From the letter, it appears that the author had failed to report after having been called to begin serving his sentence on 16 May 1994, and that he was arrested and detained on 8 August 1998. After his arrest, the author filed an application for clemency and requested his release pending the decision. In the letter, the Minister rejects his immediate release, but states that he will be provisionally released from detention after three months if the decision on clemency has not yet been taken.

Issues and proceedings before the Committee

9.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol.

9.2 The Committee notes that at the time when the author refused to obey an order and persisted in his refusal to carry out military orders, these acts constituted an offence under the Military Criminal Code, for which he was charged. Subsequently, and before the author was convicted, the Code was amended and the amended Code was applied to the author. Under the new Code, the author's refusal to obey military orders still constituted a criminal offence. The Committee has noted the author's argument that the nature of the offence in the new Code is different from the one in the old Code, in that it is constituted by total refusal, an attitude, rather than a single refusal of orders. The Committee notes that the acts which constituted the offence under the new Code were that the author refused to perform any military duty. Those acts were an offence at the time they were committed, under the old Code, and were then punishable by 21 months' imprisonment (for a single act) or by 42 months' imprisonment (for repeated acts). The sentence of 9 months imposed on the author was not heavier than that applicable at the time of the offence. Consequently, the Committee finds that the facts of the case do not reveal a violation of article 15 of the Covenant.

9.3 With regard to the author's claim that his conviction was in violation of article 18 of the Covenant, the Committee observes that the right to freedom of conscience does not as such imply the right to refuse all obligations imposed by law, nor does it provide immunity from criminal liability in respect of every such refusal. Nevertheless, the Committee in its General Comment has expressed the view that the right to conscientious objection to military service can be derived from article 18 [General Comment 22, article 18, forty‑eighth session, 1993]. In its General Comment on article 18 the Committee considered that "the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief." The Committee notes that under Dutch law, there is a procedure for the recognition of conscientious objections against military service on the ground of insurmountable objection of conscience to military service because of the use of violent means (para. 6.5 above).

9.4 The author sought recognition as a conscientious objector. The Minister of Defence held that his objection that he would not be able to take decisions for himself did not constitute grounds for recognition under Dutch law. In his appeal to the Council of State (dated 13 February 1989) against the failure to recognize him as a conscientious objector, the author stated:

"Under no condition appellant will obey the legal duty to do military service in the Dutch armed forces, because the nature of the armed forces is contrary to the destination of (wo)man. The armed forces ask namely of their participants to give away the most fundamental and inalienable right that they have as a human being, namely the right to act according to their moral destination or essential being. The `participator´ is forced to give away the right of say and to become an instrument in the hands of other people, an instrument that ultimately is directed to kill a fellow human being when these other people consider such necessary.

"This instrument (or armed forces) can only function well, when the moral capacities or moral intuition of the participators are destructed. Every human being who knows to open himself, to listen to his moral destination will agree that elimination of the armed forces out of our society is of the utmost importance. An importance that transcends the possible consequences of a protest according to the Penal law."

The Administrative Disputes Division of the Council of State declared his appeal unfounded on 12 February 1990.

As a consequence of the rejection of his claim for recognition as a conscientious objector the author's refusal to perform military duty made him liable to be charged with a criminal offence.

9.5 The question for the Committee is whether the imposition of sanctions to enforce the performance of military duty was, in the case of the author, an infringement of his right to freedom of conscience. The Committee observes that the authorities of the State party evaluated the facts and arguments advanced by the author in support of his claim for exemption as a conscientious objector in the light of its legal provisions in regard to conscientious objection and that these legal provisions are compatible with the provisions of article 18. The Committee observes that the author failed to satisfy the authorities of the State party that he had an "insurmountable objection of conscience to military service… because of the use of violent means" (para. 5). There is nothing in the circumstances of the case which requires the Committee to substitute its own evaluation of this issue for that of the national authorities.

10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it do not disclose a violation of any of the articles of the International Covenant on Civil and Political Rights.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

E. Communication No. 688/1996, Carolina Teillier Arredondo v. Peru

(Views adopted on 27 July 2000, sixty‑ninth session)*

Submitted by:	Ms. Carolina Teillier Arredondo
Alleged victim:	María Sybila Arredondo
State party:	Peru
Date of communication:	17 November 1995 (initial submission)
Prior decisions:	Special Rapporteur's rule 91 decision, transmitted to the State party on 16 April 1996 (not issued in document form) CCPR/C/64/D/688/1996 ‑ Decision on admissibility adopted on 23 October 1998
Date of present decision:	27 July 2000

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 23 October 1998,

Having concluded its consideration of communication No. 688/1996 submitted to the Human Rights Committee by Ms. Carolina Teillier Arredondo, under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication, her counsel and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The author of the communication is Ms. Carolina Teillier Arredondo, daughter of Ms. María Sybila Arredondo, who is a Chilean national and Peruvian citizen by marriage, a widow, and currently imprisoned at the High‑Security Prison for Women in Chorrillos, Lima

(Peru), where she is serving several sentences for terrorist activities. The author is submitting the communication on behalf of her mother, who for technical reasons is unable to do so herself.

* The following members of the Committee participated in the examination of the case: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. P.N. Bhagwati, Ms. Christine Chanet, Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar Gaitan de Pombo, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski and Mr. Abdallah Zakhia.

She claims that her mother is the victim of violations by Peru of the International Covenant on Civil and Political Rights, more specifically of articles 7; 9, paragraphs 3 and 4; 10, paragraphs 1 and 3; and 14, paragraphs 1, 2, 3 (b), (c), (d) and (e), 6 and 7, of the Covenant.

The facts as submitted by the author

2.1 Ms. Arredondo had been arrested for the first time on 29 March 1985 (Case No. 1), in Lima. At that time she had been accused of terrorist activities, including possession and transport of explosives. She had been acquitted of the charges and released after two trials, for which judgements were passed in August 1986 and November 1987.

2.2 At the time of her re‑arrest on 1 June 1990 (Case No. 2), Ms. Sybila Arredondo was working as a human rights advocate in Lima, specializing in aid to indigenous groups. She was arrested in the building where she worked, together with several people connected with the terrorist organization Shining Path (Sendero Luminoso).

2.3 Ms. Arredondo on arrest was accused of being a member of Socorro Popular, an organization which is allegedly a support unit of Sendero Luminoso, and sentenced to 12 years' imprisonment by a "faceless court" (tribunal sin rostro) (File No. 05‑93). In a legal opinion prepared by counsel for Ms. Arredondo's defence, it is stated that she was convicted on the basis of her mere physical presence in the building at the same time as several members of Sendero Luminoso were arrested by the police. None of the other co‑defendants accused her, nor were there any witnesses against her, nor any expert evidence which incriminated her. Counsel accepts that at the time of her arrest Sybila Arredondo was carrying a false electoral card (libreta electoral). In her submission the author provides a legal opinion by a Lima counsel where he states: "with regard to the allegations against Mrs. Sybila, it is regrettable that nothing whatsoever has been done to clear her nor to refute the allegations against her. No evidence in her favour was put forward and what is more she did not respond to any questioning by the police or before the Judge, and this was the way other people involved had acted, which gave the impression that they all acted in a concerted manner since they allegedly belonged to the same organization".

2.4 In May 1992, while she was in detention, proceedings (Case No. 3) were initiated against Ms. Arredondo for her participation in events which had occurred in the first week of May 1992, when the police had intervened at Miguel Castro Castro prison. The prosecution asked for a life sentence, in accordance with the new Peruvian anti‑terrorist legislation. She was acquitted in October 1995, also by a "faceless court" (File No. 237‑93).

2.5 Case No. 1, for which she had been tried in 1985, was reopened in November 1995 before a "faceless court" and she was sentenced to 15 years' imprisonment on 21 July 1997 (File No. 98‑93).

2.6 Appeals were lodged in all three proceedings, twice by Ms. Arredondo on being convicted and once by the prosecution. The author acknowledges that domestic remedies have not been exhausted with respect to the criminal proceedings against her mother. She considers, however, that the proceedings have been unduly prolonged.

The complaint

3.1 The author claims that prison conditions are appalling, and that the inmates are allowed out of their 3 x 3 metre cells only for half an hour each day. They are allowed no writing materials, unless expressly authorized. Ms. Arredondo has been given permission to write three letters in the last three years. Any books brought to the prisoners are strictly censored and there is no guarantee that the prisoners will receive them. They have no access whatsoever to magazines, newspapers, radio or television. Only inmates on the first floor of B wing are allowed to work in workshops; as Ms. Arredondo is on the second floor, she is only permitted to do very rudimentary jobs. The quality of the food is poor. Any food supplies or toiletries have to be handed to the authorities in transparent bags, and no tinned or bottled products are allowed into the prison. Any medication, including vitamins and food supplements, has to be prescribed by the prison doctor. Many inmates suffer from psychiatric problems or contagious diseases. All inmates are housed together and there are no facilities for the sick. When inmates are taken to hospital, they are handcuffed and fettered. Inmates are allowed only one visit a month from their closest relatives. Visits are limited to 20 to 30 minutes. It is claimed that, according to Peruvian legislation, inmates are entitled to one visit a week. There is also a provision for direct contact between the prisoners and their children or grandchildren once every three months. Children have to enter the prison on their own, and the persons accompanying them must leave them at the prison entrance. Ms. Arredondo is visited once a month by her daughter and once every three months by her 5‑year‑old grandson; however, due to police controls applied to adult visitors, the two elder grandchildren (17 and 18 years old) do not visit her since by so doing they would acquire a police record.

3.2 The author claims that the judicial proceedings (in courts of "faceless judges") brought against her mother are not in conformity with article 14 of the Covenant. She also complains of the dilatory nature of the proceedings.

3.3 It is stated that the same matter is not being examined under another procedure of international investigation or settlement.

State party's observations and comments on admissibility

4. In its submission of 12 August 1997, the State party challenges the admissibility of the case on the grounds that domestic remedies have not been exhausted and that the victim's daughter is not legally entitled to submit the case on behalf of her mother. On the basis of the copies of two newspaper articles published in Chile, following the visit by several Chilean parliamentarians to Ms. Arredondo, the State party further claims that the latter does not desire favourable treatment and that she is prepared to wait for her case to be resolved.

5.1 In her comments on the State party's submissions, the author of the communication informs the Committee that she is in fact acting on behalf of and with the knowledge of her mother, because the latter is prevented from doing so herself. She again refers to the restrictions imposed on her mother in prison regarding visits, contact with the outside world, writing materials, etc.

5.2 With respect to the State party's claim that domestic remedies have not been exhausted, the author reiterates that her mother was arrested in 1985, accused of terrorism, tried and twice acquitted. After being re‑arrested in 1990, the 1985 trial was reopened in 1995. In 1997, she was sentenced to 15 years. An appeal before the Supreme Court is still pending. The author therefore requests the Committee to consider the communication admissible on the ground of undue delay in domestic remedies caused by the State party. Ms. Arredondo was also sentenced to 12 years' imprisonment for belonging to Socorro Popular, a sentence which she is currently serving. She was acquitted of the accusation of taking part in the events at Miguel Castro Castro prison in May 1992, but an appeal was lodged against her acquittal by the Public Prosecutor and the matter is still pending.

5.3 The author reiterates that the treatment received by her mother in prison constitutes violations of articles 7 and 10 of the Covenant. By a letter of 28 September 1998, which was transmitted to the State party on 1 October 1998, Ms. Teillier also reiterates and gives more information about the circumstances surrounding the arrest of her mother, who was detained without a judicial warrant in violation of article 9 of the Covenant, and states that the trials which she has undergone have not complied with the requirements and guarantees laid down in article 14 of the Covenant.

The Committee's decision on admissibility

6.1 At its sixty‑fourth session in October 1998, the Committee examined the admissibility of the communication and ascertained, as required under article 5, paragraph 2 (a), of the Optional Protocol, that the same matter was not being examined under another procedure of international investigation or settlement.

6.2 On the question of the requirement concerning the exhaustion of domestic remedies, the Committee noted the State party's challenge of the admissibility of the communication on the ground of failure to exhaust domestic remedies. The Committee referred to its case law, in which it had repeatedly found that, for the purposes of article 5, paragraph 2 (b), of the Optional Protocol, domestic remedies must be effective and available, and must not be unduly prolonged. The Committee considered that, in the circumstances of the case, the remedies had been unduly prolonged. Ms. Arredondo was arrested in 1990 and tried for several offences, one of which dated back to 1985, and for which she had already twice been acquitted. By 28 September 1998, the case had still not been resolved. The Committee accordingly found that article 5, paragraph 2 (b), did not preclude consideration of the complaint.

6.3 With regard to the author's claims that the conditions in which her mother is detained constitute inhuman and degrading treatment in violation of articles 7 and 10 of the Covenant, the Committee found that these claims had been sufficiently substantiated for the purposes of admissibility and should be considered on their merits.

6.4 The author stated that her mother's arrests had not been effected in accordance with domestic legislation and were therefore in violation of article 9 of the Covenant. The Committee considered that this claim should be examined on its merits as it might raise issues under article 9 of the Covenant.

6.5 With regard to the claims that the author's mother had undergone trials which did not comply with the guarantees laid down in article 14 of the Covenant, the Committee noted that she had been tried by a special military court. It further noted the State party's position to the effect that the criminal proceedings against her had been conducted, and were continuing to be conducted, in accordance with the procedures established by the anti‑terrorist legislation in force in Peru. However, the question is whether these proceedings were in conformity with article 14 of the Covenant. This point should be considered on its merits.

The State party's observations and the author's comments

7.1 In its submission dated 4 August 1999, the State party requested a review of admissibility since it considers that the victim's daughter lacks competence to submit the case on her mother's behalf; it takes the view that the victim could herself have communicated with the Committee without difficulties of any kind. Alternatively she could, in its opinion, have given her daughter express authorization or have sent such authorization through her lawyer or her son, who is resident in Chile and has visited his mother in prison. In its submission, the State party says that Ms. Arredondo's son has never indicated that his mother wished to submit a case to any international body.

7.2 The State party maintains that the author's submissions are the same as those presented to the Working Group on Arbitrary Detention on 29 February 1996 and the fact that the Working Group has not issued an opinion means that it did not find the detention to have been arbitrary. The State party accordingly concludes that there has been no arbitrary action. It requests the Committee, in conformity with the non bis in idem principle, to declare the communication inadmissible.

7.3 The State party further submits that, if the Committee, despite the submissions presented with the aim of declaring the case inadmissible, considers that it should continue with the case, it could only do so in respect of the proceedings still under way against Ms. Arredondo. In these proceedings a decision has still to be reached on an appeal for annulment and a delay in the administration of justice would have to be admitted; the question arising would be whether or not the delay has been justified. In the State party's view, the causes relate to the redress sought by communication No. 688/1996 and to the principal objective of obtaining a decision by the Committee recommending the Peruvian State to release Ms. Arredondo on the ground that in the proceedings against her in the internal courts the guarantees of due process have not been observed. In this respect, the State party recalls that three judicial proceedings were initiated against Ms. Arredondo: in one she was acquitted at final instance, in the second a decision on an appeal for annulment (of the 15‑year prison sentence) is pending, and in the third she was sentenced to 12 years' imprisonment. She is currently serving this sentence in the special high‑security prison for women in Chorrillos. In the State party's view, the aim of the present communication is to obtain a decision annulling the pending proceedings against her on the ground of "unjustified" delay in the administration of justice and to secure her subsequent release; the Peruvian State would thus have to annul the pending proceedings and initiate other proceedings, or declare her case closed. The State party points out that, if this course were followed, there would be no change in Ms. Arredondo's situation since, as has been stated, she is

serving a 12‑year sentence. If the third judgement were confirmed, this would be combined with the current sentence and Ms. Arredondo would remain in prison until she completed the 15‑year sentence requested in the second of the proceedings against her.

7.4 The State party submits that the trial in which Ms. Arredondo was sentenced conformed to the guarantees of due process and, at the national level, there have been no complaints, denunciations or appeals on the ground of alleged irregularities in the conduct of the trial. In addition, it has not been proved in this international body that there have been violations of guarantees in the administration of justice.

7.5 As regards the claims concerning Ms. Arredondo's conditions of detention, the State party maintains that, according to the information provided by the National Prison Institute (INPE), the conditions complained of are those which were established when the problem of terrorism was at its height in Peru. Now that the situation has changed, it has been considered advisable to ease the prison regime for persons convicted of terrorist offences, and so Supreme Decree No. 005‑97‑JUS, of which Ms. Arredondo is a beneficiary, has entered into force. Since entering the Chorrillos high‑security prison for women and in accordance with the assessments of the prison board, Ms. Arredondo has been held in maximum‑security conditions. She is at present sharing a cell for two persons in B wing.

7.6 As to the number of family visits Ms. Arredondo has received, the State party points out that, during 1998 and up to the present time, she has been visited by her daughter and her grandson. She has also been visited by her mother and by her son by special arrangement, and has received a Christmas visit from her grandchildren living in Chile.

7.7 The special maximum‑security regime (first stage) in force in B wing comprises the benefits provided for in the above‑mentioned law and consists of "two hours' exercise, a one‑hour visit in a visiting room on Saturdays for women and on Sundays for men, manual or craft work in their cells". The State party also asserts that, under this regime, those prisoners who show signs of progress in their rehabilitation treatment have access to the workshops supervised by INPE personnel.

7.8 The State party maintains that Ms. Arredondo is currently writing a book about her husband, and this invalidates the claim that she is being deprived of access to writing materials. Every day the personnel responsible for the security of women prisoners hand her pen and paper. In addition, the State party maintains that women prisoners are not prevented from watching television; they are even permitted to see videotaped films once a fortnight, and are allowed to read books and periodicals, which are checked for reasons of national security to ensure that they do not contain material relating to subversive topics. As to leisure activities, they attend sports events and dances and listen to music.

7.9 As to the claims relating to the quality of the food given to women prisoners, the food contains the necessary calories and proteins and is prepared by the prisoners themselves, who take it in turns to do this in groups. Their work is assessed and a prize is awarded as an incentive to the best group.

7.10 Concerning the claim that prisoners are not allowed to receive medicines without the authorization of the prison doctor, the State party maintains that this requirement is prompted by security considerations and is aimed at preventing poisoning by out‑of‑date or inappropriate medicines, medicines taken without medical prescription or consumed in excessive quantities, or medicines which might in any other way endanger prisoners' health.

7.11 As to the claims relating to the treatment received by persons suffering from psychiatric problems, the State party says that it has a specialist who permanently evaluates the condition of women prisoners in this category and that they live in separate sectors in the various prison wings. They also receive work‑therapy care in the open air in the countryside. Concerning the claims relating to contagious diseases, the State party says that there are few such cases and when they do occur, the necessary precautions are taken. On the question of the way in which prisoners are taken to and from hospital, transfers are effected in accordance with the directives of the Peruvian National Police (PNP). These directives are suited to the type of offence committed and are aimed at preventing escapes from treatment areas that might endanger other patients, since medical care is provided in public‑sector hospitals.

7.12 Lastly, on the question of visits by children, according to the State party children are able to have direct contact with their relatives every Friday. On entering the prison, the children are taken by female PNP personnel to the place where they are to meet their relatives, who will be waiting for them, so as to prevent them from being frightened or mistakenly directed to other sectors. Adult relatives have an identification card in order to enter the prison; this establishes their relationship with the prisoner.

8.1 In her communication of 4 November 1999, Ms. Arredondo's daughter sent the Committee a certified photocopy of a general power of attorney and a handwritten letter signed by Ms. Arredondo supporting the proceedings initiated and pursued by her daughter on her behalf.

8.2 In her communication Ms. Teillier states that, although her mother does receive family visits, these take place in a visiting room with a double metal mesh between the prisoner and her relatives. There is no personal contact of any kind or any possibility of handing over any object. The relatives can only receive from the prisoners ‑ after a mandatory examination by the guards ‑ returned food receptacles and craft products. In addition, the relatives have to undergo a search before they are allowed to leave the prison. Visits by lawyers take place in the same conditions as visits by relatives.

8.3 As to the possibility of sending correspondence outside the prison, Ms. Teillier explains the procedure followed for this purpose. Once a week the women prisoners have to deposit any letter leaving the prison in a mail box in their wing. The letters are removed and checked by prison personnel. All the letters are read and not all of them survive this level of censorship. By way of example she states that, some weeks before, her mother had told her that she had deposited an envelope addressed to Ms. Teillier with the copy of the request concerning a health problem which her mother had sent to the prison governor. This letter never reached Ms. Teillier. Once the letters have been checked, on visiting days they are deposited in a box near the prison exit. The visitors collect the letters addressed to them and indeed any others, since nothing is done to ensure that they reach the correct addressee.

8.4 The author of the communication states that the complaint submitted on her mother's behalf relates specifically to the harsh prison conditions. She raises the question whether the representatives of the State party really believe that Ms. Arredondo can write and confidently send off her communications on this subject. She also says, as the State party itself has done, that all persons found guilty of terrorist offences, including Ms. Arredondo, are subject to continuing assessment by the prison board set up by the prison authorities. This board can easily consider complaints to be tantamount to "bad behaviour".

8.5 As to the second question regarding consideration of the case by more than one international body, Ms. Teillier says that, although the Working Group on Arbitrary Detention established by the United Nations Commission on Human Rights may indeed have transmitted to the Peruvian State a number of complaints including one concerning Ms. Arredondo (widow), she is unaware of such a communication. Concerning the logical assumption mentioned in section 12 of the State party's communication to the effect that the Working Group "did not consider the detention of Ms. Arredondo to be arbitrary", she believes this interpretation to be far‑fetched. The author suggests that it could be more accurately assumed that note was taken of the "dual consideration" and consequently any further action was suspended.

8.6 As to the "ultimate aim", the author states that this is not necessarily to "reach a decision annulling the pending proceedings", i.e. the proceedings which began 14 years ago in 1985, but rather to ensure that the Supreme Court takes a decision. She reiterates that if the Supreme Court confirmed the 15‑year sentence handed down in July 1997 (two years and three months before), her mother would be eligible for the prison benefits corresponding to the legislation of that time. These benefits would allow her to leave prison since the 12‑year sentence would be subsumed under the longer sentence. And if this decision was not reached in the short term, it might happen that, having completed the 12‑year sentence, she would be forbidden to leave prison or be arrested immediately and again subjected to the interminable trial proceedings.

8.7 On the question of the trial that led to a 12‑year prison sentence, the author maintains that it is not true that no complaints, denunciations or appeals have been lodged at the national level, as the State party claims. The annulment appeal was lodged with the competent organs but was rejected. The fact of the matter is that there are no more organs to be appealed to. In this connection, the author recalls that this trial also took place in accordance with the 1992 legislation, under the faceless judges system.

8.8 As to conditions of detention, it is true that in Chorrillos they are not so harsh as they had been at the Callao Naval Base, Yanamayo and Challapalca, but they still constitute a punishment regime. In this connection she repeats that although she is able to visit her mother for one hour once a week on Saturdays, the visit takes place in a room where no direct contact is possible and they are unable to speak freely. When she visits her mother, she takes along some food to make up for the deficiencies in the prisoners' daily diet, due to the low budget allocation by the State. Since the appointment of the new prison governor, who is a National Police colonel, the introduction of food has again been restricted and a list of permitted products has been published.

8.9 On the question of the State party's statement that there are few cases of contagious diseases, the author says that in B wing alone there have been 15 cases of tuberculosis among approximately 100 prisoners. Three of these cases occurred during the second half of 1999. As an example of the difficulties existing with regard to health matters, the author explains that for several months her mother has been awaiting authorization from the prison governor to go to the hospital for x‑rays on her knee. These x‑rays have been requested by the prison orthopaedic physician and by the INPE specialist (18 July 1999). Subsequently two medical committees have held meetings to authorize her mother's hospital visit, but by 4 November 1999 the visit had still not taken place.

8.10 The author states that, although the matter does not directly affect her mother, she cannot but dispute the information provided by the State party concerning the conditions in which women prisoners with psychiatric problems are held, since they are not separated from the rest of the prison population. Moreover, they receive no work‑therapy care in the countryside. She regrets that the Committee has been misinformed on this point.

8.11 As to the claim that prisoners are not prevented from watching television and that they are allowed to watch films every two weeks, this is simply not true. They are allowed to watch films only when these are scheduled by the prison authorities. They are not allowed to watch the news or any other programme broadcast by local channels. Furthermore, they are still not allowed to listen to the radio or to read current periodicals or magazines. The introduction of books into the prison also continues to be restricted. As for the statement that there is a continuing policy, based on security considerations, of preventing prisoners from reading material that might contain subversive topics, the author wonders what is subversive about the official gazette El Peruano, which her mother was recently not allowed to receive.

8.12 Lastly, concerning visits by children to B wing, these take place on Sunday mornings but only occasionally are the children escorted by women warders. In any event, they enter the prison alone and are searched alone. In the author's opinion, this certainly has incalculable consequences for the children.

Consideration on the merits

9. The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided for in article 5, paragraph 1, of the Optional Protocol.

10.1 As regards the State party's claim concerning the lack of competence of Ms. Arredondo's daughter to take action before the Human Rights Committee, the Committee notes that it is in possession of adequate written authorization provided by Ms. Arredondo to her daughter (see para. 8.1 above) and considers that this is sufficient to enable her to act on her mother's behalf. It also considers that Ms. Teillier is acting after full discussion with her mother.

10.2 The Committee takes note of the claim of inadmissibility made by the State party on the grounds that the present communication is before another international procedure of investigation or settlement body, since the Working Group on Arbitrary Detention of the United Nations Commission on Human Rights has, at Ms. Arredondo's request, taken up the question. The Committee decides to reach no decision on whether this matter falls within the scope of article 2 paragraph 5 a of the Optional Protocol, since it has received information from the Working Group that it realized the existence of the present communication and has referred the case to the Committee without any expression of its views.

10.3 On the question of whether Ms. Arredondo's arrest was carried out in conformity with the requirements of article 9, paragraphs 1 and 3, of the Covenant, in other words, whether she was arrested on the basis of an arrest warrant, and whether or not, after being taken to police premises, she was promptly brought before a judge, the Committee regrets that the State party has not replied specifically to the allegation made, but has, in a general fashion, said that the detention and trial of Ms. Arredondo were conducted in conformity with Peruvian laws. The Committee considers that, since the State party has not replied to these allegations, due weight must be given to them and it must be assumed that the events occurred as described by the author. Consequently, the Committee finds a violation of article 9, paragraphs 1 and 3, of the Covenant.

10.4 As to the author's submissions concerning her mother's conditions of detention, contained in paragraph 3.1 and reiterated in paragraphs 8.3, 8.4 and 8.8‑8.12 above, the Committee takes note of the State party's acceptance of the description of these conditions is accurate, and that they are justified by the seriousness of the offences committed by the prisoners and by the serious problem of terrorism which the State party experienced. The Committee furthermore notes Supreme Decree No. 005‑97‑JUS, as referred to above. It considers that the conditions of Ms. Arredondo's detention, especially in the earlier years and to a lesser extent since the Supreme Decree's entry into force, are excessively restrictive. Even though it recognizes the need for security restrictions, these always have to be justified. In the present case, the State party has failed to provide any justification for the conditions described in Ms. Teillier's submission. The Committee subsequently finds that the conditions of detention infringe article 10, paragraph 1, of the Covenant.

10.5 As to the author's complaint that her mother did not have a trial affording the guarantees of article 14 of the Covenant because she was tried by a court consisting of faceless judges, it has taken note of the book "Terrorismo: Tratamiento juridico, Insituto de Defensa legal, Lima, 1995, pp. 288‑290)" on which the author has relied to describe the process of trial before faceless judge courts: it takes note of the State party's statement that Ms. Arredondo's three trials were conducted in accordance with the national legislation in force at that time. It reiterates its jurisprudence to the effect that the trials conducted by the faceless courts in Peru were contrary to article 14.1 of the Covenant since the accused did not enjoy the guarantees provided by that article.

10.6 As for the delays in the legal process, in violation of article 14, paragraph 3 (c), the Committee notes that the State party acknowledges a delay and that, despite instructions said to have been given to decide the case, the appeal on the reopened case remains unresolved. Given that the reopening, by the prosecution in 1995 of Ms. Arredondo's second acquittal of 1987, involves such unacceptable delays, the Committee finds that this constitutes a violation of article 14, paragraph 3 (c), of the Covenant.

11. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee constitute violations of article 10, paragraph 1, of the Covenant as regards Ms. Arredondo's conditions of detention; of article 9 as regards the manner of her arrest; of article 14, paragraph 1, as regards her trial by a court made up of "faceless judges"; of article 14, paragraph 3 (c), with respect to the delay in the completion of the proceedings initiated in 1985.

12. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Ms. Arredondo with an effective remedy. The Committee considers that Ms. Arredondo should be released and adequately compensated. The State party is under an obligation to ensure that similar violations do not occur in the future.

13. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

F. Communication No. 689/1996, Maille v. France

(Views adopted on 10 July 2000, sixty‑ninth session)*

Submitted by:	Mr. Richard Maille (represented by François Roux, legal counsel)
Alleged victim:	The author
State party:	France
Date of the communication:	17 November 1995
Date of admissibility decision:	11 July 1997

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 10 July 2000,

Having concluded its consideration of communication No. 689/1996 submitted to the Human Rights Committee by Mr. Richard Maille under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication, and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The author of the communication is Richard Maille, a French citizen born in December 1966 and currently residing in Millau, France. He claims to be a victim of violations by France of articles 18, 19 and 26, juncto article 8, of the International Covenant on Civil and Political Rights. He is represented by counsel, François Roux.

* The following members of the Committee participated in the examination of the present communication: Mr. Nisuke Ando, Lord Colville, Ms. Elizabeth Evatt, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski, Mr. Maxwell Yalden, and Mr. Abdallah Zakhia. Pursuant to rule 85 of the Committee's rules of procedure, Ms. Christine Chanet did not participate in the examination of the case. The text of an individual opinion by Committee members Nisuke Ando, Eckart Klein, David Kretzmer and Abdallah Zakhia is appended to this document.

The facts as submitted by the author

2.1 From June 1986 to July 1987 the author, a recognized conscientious objector, performed civilian national service duties. On 15 July 1987, after approximately one year of carrying out those duties, he left his duty station, invoking the allegedly discriminatory character of article 116, paragraph 6, of the National Service Code (Code du service national), pursuant to which conscientious objectors had been required to carry out civilian national service duties for a period of two years, whereas military service for conscripts had lasted one year.

2.2. As a result of his action, Mr. Maille was charged with insubordination in peacetime, pursuant to article 397, paragraph 1, of the Code of Military Justice. By a judgement of 27 January 1992, the Criminal Court (Tribunal Correctionnel) of Montpellier found him guilty as charged and sentenced him to 15 days' imprisonment (suspended). As the author had not completed his civilian service duties, he received an order dated 30 July 1992 to resume those duties; Mr. Maille decided to ignore the order. Accordingly, the Criminal Court of Montpellier resumed proceedings against him and, on 21 April 1994, found him guilty as charged and decided to rescind the decision recognizing him as a conscientious objector. On 23 January 1995, the Court of Appeal of Montpellier confirmed the judgement.

2.3. The author indicates that he did not further appeal to the Court of Cassation because, in the circumstances of his case and given the Court of Cassation's established jurisprudence unfavourable to him such an appeal would be futile. In this connection, he refers to several judgements handed down on 14 December 1994 by the Court of Cassation, which concluded that article 116 (6) was not discriminatory and did not violate articles 9,10 and 14 of the European Convention on Human Rights. The author concludes that as no further effective remedy is available to him, he should be deemed to have complied with the requirements of article 5, paragraph 2(b), of the Optional Protocol.

The complaint

3.1. According to the author, both article 116 (6) of the National Service Code (in its version of July 1983 prescribing a period of 24 months of civilian service for conscientious objectors) and article L.2 of the National Service Code in its version of January 1992 (as amended by Act No. 92‑9 of 4 January 1999), which sets the duration of civilian service for conscientious objectors at 20 months, violate articles 18, 19 and 26, juncto article 8, of the Covenant in that they double the duration of service for conscientious objectors in comparison with that for persons performing military service.

3.2. The author acknowledges that in case No. 295/1988, the Committee had held that an extended length of alternative service was neither unreasonable nor punitive, and has found no violation of the Covenant. However, he invokes the individual opinions appended to those views by three members of the Committee, who had concluded that the challenged legislation was not based on reasonable or objective criteria, such as a more severe type of service or the need for special training in order to perform the longer service. The author fully endorses the conclusions of those three members of the Committee.

3.3 The author observes that articles L.116(2) to L.116(4) of the National Service Code provide for a rigorous test of the sincerity of the convictions of a conscientious objector. Each application for recognition as a conscientious objector has to be approved by the Minister for the Armed Forces. If he refuses, an appeal to the Administrative Tribunal is possible under article L.116 (3). In such circumstances, the author argues, it cannot be assumed that the length of civilian service was fixed purely for reasons of administrative convenience, since anyone agreeing to perform civilian service twice (or almost) as long as military service should be deemed to have genuine convictions. Rather, the length of civilian service must be deemed to have a punitive character, which is not based on reasonable or objective criteria.

3.4 In support of his contention, the author invokes a judgement of the Italian Constitutional Court of July 1989, which held that the provision for non‑military service lasting eight months longer than military service was incompatible with the Italian Constitution. He further points to a decision adopted by the European Parliament in 1967 which, on the basis of article 9 of the European Convention on Human Rights, suggested that the duration of alternative service should be the same as that for military service. Moreover, the Committee of Ministers of the Council of Europe has declared that alternative service must not have a punitive character and that its duration, in relation to military service, must remain within reasonable limits (Recommendation No. R(87)8 of 9 April 1987). Finally, the author notes that the United Nations Commission on Human Rights declared, in a resolution adopted on 5 March 1987, that conscientious objection to military service should be regarded as a legitimate exercise of the right to freedom of thought, conscience and religion, as recognized by the Covenant.

3.5. In these circumstances, the author submits that requiring him to perform civilian service for a period that is twice as long as that set for military service constitutes unlawful and prohibited discrimination on the basis of opinion, and that the possibility of imprisonment for refusal to perform civilian service beyond the length of time of military service constitutes a violation of articles 18, paragraph 2, 19, paragraph 1, and 26 of the Covenant.

The State party's observations on admissibility and the author's comments thereon

4.1. The State party contends that the communication is incompatible ratione materiae with the provisions of the Covenant since, on the one hand, the Committee has acknowledged in its decision on communication No. 185/1984 (L.T.K. v. Finland) that "the Covenant does not provide for the right to conscientious objection; neither article 18 nor article 19 of the Covenant, especially taking into account paragraph 3 (c) (ii) of article 8, can be construed as to imply that right" and since, on the other hand, by virtue of article 8, paragraph 3 (c) (ii) of the Covenant, the internal regulation of national service, and therefore of conscientious objector status for those States which recognize it, does not fall within the scope of the Covenant and remains a matter for domestic legislation.

4.2. Subsidiarily, the State party contends that domestic remedies have not been exhausted by the author. In this connection, it submits that the author of the communication has not exhausted the available judicial remedies since he has not appealed the Montpellier Court of Appeal's judgement of 23 January 1995 to the Court of Cassation. The State party further submits that the author has not exhausted all administrative remedies. The argument put forward in this connection is that, by leaving his duty station before having received a reply from the military authorities concerning his request for a reduction in the length of his service, the author violated the provisions of the National Service Code, thus becoming liable to criminal prosecution, and did not wait for the military authorities to refuse his request and then bring the matter before the Administrative Tribunal.

4.3. Lastly, the State party contends that the author does not qualify as a victim. With regard to articles 18 and 19 of the Covenant, the State party claims that by recognizing conscientious objector status and offering conscripts a choice as to the form of their national service, it allows them to opt freely for the national service appropriate to their beliefs, thus enabling them to exercise their rights under articles 18 and 19 of the Covenant. In this connection, the State party concludes, quoting the decision on communication No. 185/1984 cited above, that as the author was "not prosecuted and sentenced because of his beliefs or opinions as such, but because he refused to perform military service", he cannot therefore claim to be a victim of a violation of articles 18 and 19 of the Covenant.

4.4. With regard to the alleged violation of article 26 of the Covenant, the State party, noting that the author complains of a violation of this article because the length of alternative civilian service is double that of military service,, submits first of all that "the Covenant, while prohibiting discrimination and guaranteeing equal protection of the law to everyone, does not prohibit all differences of treatment", which must be "based on reasonable and objective criteria" (see the Committee's views on communication No. 196/1985, Gueye v. France). The State party argues in this connection that the situation of conscripts performing alternative civilian service differs from that of those performing military service, notably in respect of the heavier constraints of service in the army, and that a longer period of alternative civilian service constitutes a test of the sincerity of conscientious objectors designed to prevent conscripts from claiming conscientious objector status for reasons of comfort, ease and security. The State party quotes the Committee's views on communication No. 295/1988 (Järvinen v. Finland), where the Committee held that the 16‑month period of alternative service imposed for conscientious objectors ‑ double the eight‑month period of military service ‑ was "neither unreasonable nor punitive". The State party therefore concludes that the difference of treatment complained of by the author is based on the principle of equality, which requires different treatment of different situations.

4.5. For all of these reasons, the State party requests the Committee to declare the communication inadmissible.

5.1. Concerning the State party's argument as to the Committee's competence ratione materiae, the author cites the Committee's General Comment No. 22 (48), where it is stated that the right to conscientious objection "can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief. When this right is recognized by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs; likewise, there shall be no discrimination against conscientious objectors because they have failed to perform military service". According to the author, it is clear from these comments that the Committee is competent to determine whether or not there has been a violation of the right to conscientious objection under article 18 of the Covenant.

5.2. The author claims that the problem posed in his case lies not in a possible infringement of conscientious objectors' freedom of belief by French legislation, but in the conditions for the exercise of that freedom, since alternative civilian service is twice the length of military service, without this being justified by any provision to protect public order, in violation of article 18, paragraph 3, of the Covenant. The author invokes in this context the Committee's General Comment No. 22 (48), which states that "limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18. (...) Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner" and concludes that requiring conscientious objectors to perform alternative civilian service which is twice the length of military service constitutes a discriminatory restriction on the enjoyment of the rights set forth in article 18 of the Covenant.

5.3. As to the question of the exhaustion of domestic remedies, the author states that an appeal to the Court of Cassation against the Court of Appeal's decision of 23 January 1995 would have been futile as it would have had no reasonable chance of success in view of the Court of Cassation's established jurisprudence on the matter. In this connection, the author cites three judgements of the Court of Cassation (judgement of 14 December 1994 in the Paul Nicolas, Marc Venier and Frédéric Foin cases), where the Court held that article 116 (6) of the National Service Code fixing the length of military service and alternative forms of service was not discriminatory. The author therefore concludes that he has exhausted all effective domestic remedies in respect of the proceedings brought against him. With regard to the non‑exhaustion of administrative remedies, the author maintains that such remedies were not open to him inasmuch as, not having been notified of any administrative decision, he could not bring the matter before the Administrative Tribunal.

5.4. Concerning the alleged violation of article 26, the author claims that requiring a period of civilian service twice the length of military service constitutes a difference of treatment which is not based on "reasonable and objective criteria" and therefore constitutes discrimination prohibited by the Covenant (communication No. 196/1985 cited above). In support of this conclusion, the author argues that there is no justification for making civilian service twice the length of military service; in fact, unlike in the Järvinen case (communication No. 295/1988 cited above), the longer duration is not justified by any relaxation of the administrative procedures for obtaining conscientious objector status since, under articles L.116(2) and L.116 (4) of the National Service Code, applications for conscientious objector status are subject to approval by the Minister for the Armed Forces following an examination which may result in refusal. Nor is it justified in the general interest or as a test of the seriousness and sincerity of the beliefs of the conscientious objector. Indeed, the mere fact of taking special steps to test the sincerity and seriousness of the beliefs of conscientious objectors in itself constitutes discrimination based on the recognition of a difference of treatment between conscripts. Furthermore, conscientious objectors derive no benefit or privilege from their status ‑ unlike, for example, persons assigned to perform international cooperation services instead of military service, who have the opportunity to work abroad in a professional field corresponding to their university qualifications for 16 months (i.e. four months less than the civilian service for conscientious objectors) and a difference of treatment is not, therefore, justified on that ground.

Issues and proceedings before the Committee

6.1. At its sixtieth session, the Human Rights Committee considered the admissibility of the communication.

6.2. Concerning the requirement of exhaustion of available domestic remedies, the Committee took note of the fact that the author had not exhausted all the judicial remedies that were open to him. However, the Committee observed that an appeal by the author to the Court of Cassation against the Court of Appeal's judgement of 23 January 1995 would undoubtedly have been rejected by the Court of Cassation, inasmuch as it had dismissed earlier similar appeals based on the allegedly discriminatory nature of article 116 (6) of the National Service Code. From these legal precedents it might be concluded that an appeal by the author to the Court of Cassation would have had no chance of success. The Committee therefore considered that effective judicial remedies had been exhausted by the author.

6.3. As to the argument of the State party that the author had not exhausted all administrative remedies, the Committee noted that it did not appear from the State party's observations that any administrative decision was taken against the author, and that consequently no administrative appeal was immediately available to him at the time of the interruption of his civilian service. Nevertheless, the Committee noted also that by not waiting for the military authorities to respond to his decision to interrupt his civilian service after one year, and by choosing to leave his post after merely notifying those authorities, the author voluntarily did not avail himself of administrative remedies although, as indicated by the State party, it was open to him to lodge an administrative appeal challenging the applicability of a law as being contrary to the State party's international commitments to protect human rights. Notwithstanding this argument, however, the Committee noted that administrative remedies were no longer available to the author of the communication at this stage of the proceedings. The Committee therefore concluded that it was not prevented by article 5, paragraph 2 (b), of the Optional Protocol from dealing with the communication.

6.4. The Committee took note of the State party's arguments concerning the incompatibility of the communication ratione materiae with the provisions of the Covenant. In this regard, the Committee considered that the matter raised in the communication did not concern a violation of the right to conscientious objection as such. The Committee considered that the author had sufficiently demonstrated, for the purposes of admissibility, that the communication might raise issues under provisions of the Covenant.

7. Accordingly, on 11 July 1997, the Committee decided that the communication was admissible.

The State party's observations on the merits of the communication

8.1. By submission of 29 June 1998, the State party addresses the merits of the communication and at the same time requests the Committee to review its decision declaring the communication admissible.

8.2. The State party recalls that the author left his post the day after he had informed the authorities by letter that he was seeking a reduction in the time of service. He did not await the outcome of his request. The State party argues that he should have and that in case of a negative answer, or the absence of an answer after four months, he could have appealed to the administrative tribunal. In this context, the State party recalls that following the judgement by the Conseil d'Etat in the Nicolo case (20 October 1989) individuals may contest the applicability of the law for reasons of incompatibility with international human rights obligations. The State party notes that, in its decision on admissibility, the Committee has recognized the existence of this remedy, but concluded that domestic remedies had nevertheless been exhausted because the remedy was no longer available to the author at this stage of the proceedings.

8.3. The State party challenges the Committee's decision in this respect and argues that the availability and effectiveness of a remedy have to be considered at the moment of the occurrence of the alleged violation, and not a posteriori, at the moment the author presents his communication. If not, it would suffice to abstain voluntarily from exhausting domestic remedies in the time and form prescribed by law in order to comply with the requirement of article 5(2)(b), which would make the requirement obsolete.

8.4. With regard to the exhaustion of domestic remedies in the criminal matter against the author, the State party recalls that there would have been no need for criminal proceedings in the author's case, if he had awaited the outcome of his request to the Minister. In this context, the State party emphasizes that the rule of exhaustion of domestic remedies implies that one exhausts all effective remedies, that is those remedies that can effectively redress the alleged violation. In the present case, the author complained about the length of the service for conscientious objectors. The available remedy was to present his claim to the military authorities, and then, if necessary, to appeal to the administrative tribunals. In its decision on admissibility, the Committee recognized that this possibility existed. It has not been shown that this procedure would have been ineffective or would have been unreasonably delayed. Consequently, the State party requests the Committee to review its decision on admissibility and to declare the communication inadmissible for failure to exhaust domestic remedies.

8.5. As to the merits, the State party argues that the author is not a victim of a violation of the Covenant.

8.6. According to the State party, article L.116 of the National Service Code in its version of July 1983 instituted a genuine right to conscientious objection, in the sense that the sincerity of the objections is said to be shown by the request alone, if presented in accordance with the legal requirements (that is, justified by an affirmation of the applicant that he has personal objections to using weapons). No verification of the objections took place. To be admissible, requests had to be presented on the 15th of the month preceding the incorporation into the military service. Thus a request could only be rejected if it was not justified or if it was not presented in time. A right to appeal existed to the administrative tribunal.

8.7. Although the normal length of military service since January 1992 in France was 10 months, some forms of national service lasted 12 months (military service of scientists) and 16 months (civil service of technical assistance). The length of the service for conscientious objectors was 20 months. The State party denies that the length has a punitive or discriminatory character. It is said to be the only way to verify the seriousness of the objections, since the objections are no longer tested by the administration. After having fulfilled their service, conscientious objectors have the same rights as those who have finished civil national service.

8.8. The State party informs the Committee that on 28 October 1997 a law was adopted to reform the national service. Under this law, all young men and women will have to participate between their 16th and 18th birthday in a one day call‑up to prepare for defence. Optional voluntary service can be done for a duration of 12 months, renewable up to 60 months. The new law is applicable to men born after 31 December 1978 and women born after 31 December 1982.

8.9. According to the State party, its system of conscientious objection was in accordance with the requirements of articles 18, 19 and 26 of the Covenant, and with the Committee's general comment No. 22. The State party notes that its regime for conscientious objection did not make any difference on the basis of belief, and no process of verification of the reasons forwarded by the applicants occurred, other than in many neighbouring countries. No discrimination existed against conscientious objectors, as their service was a recognized form of the national service, on equal footing with military service or other forms of civil service. In 1997, just under 50 per cent of those performing civil service were doing this on the basis of conscientious objections to military service.

8.10. The State party submits that the author of the present communication has not at all been discriminated on the basis of his choice to perform national service as a conscientious objector. It notes that the author was convicted for not complying with his obligations under the civil service, which he had freely chosen. After leaving his duty station without authorisation, the author was summoned several times to report at work but failed to do so. His conviction was thus not because of his personal beliefs, nor on the basis of his choice for alternative civil service, but on the basis of his refusal to respect the conditions of that type of service. The State party notes that at the time when the author requested to perform alternative military service, he had not indicated any objection to the length of service. In this context, the State party notes that it would have been open to the author to choose another form of unarmed national service, such as one of technical assistance. On this basis, the State party argues that the author has not established that he is a victim of a violation by the State party.

8.11. Subsidiarily, the State party argues that the author's claim is ill‑founded. In this context, the State party recalls that according to the Committee's own jurisprudence, not all differences in treatment constitute discrimination, as long as they are based on reasonable and objective criteria. In this context, the State party refers to the Committee's Views in case No. 295/1988 (Järvinen v. Finland), where the service for conscientious objectors was 16 months and that for other conscripts 8 months, but the Committee found that no violation of the Covenant had occurred because the length of the service ensured that those applying for conscientious objector status would be serious, since no further verification of the objections occurred. The State party submits that the same reasoning should apply to the present case.

8.12. In this context, the State party also notes that the conditions of the alternative civil service were less onerous than that of military service. The conscientious objectors had a wide choice of posts. They could also propose their own employer and could do their service within their professional interest. They also received a higher indemnity than those serving in the armed forces. In this context, the State party rejects counsel's claim that the persons performing international cooperation service received privileged treatment vis à vis conscientious objectors, and submits that those performing international cooperation service did so in often very difficult situations in a foreign country, whereas the conscientious objectors performed their service in France. In the author's case, he performed his civil service in the Vaucluse, where he was responsible for the maintenance of forest roads, which corresponds with his professional background as an agricultural technician.

8.13. The State party concludes that the length of service for the author of the present communication had no discriminatory character compared with other forms of civil service or military service. The differences that existed in the length of the service were reasonable and reflected objective differences between the types of service. Moreover, the State party submits that in most European countries the time of service for conscientious objectors is longer than military service.

Counsel's comments on the State party's submission

9.1. In his comments of 21 December 1998, counsel argues that article 5(2)(b) of the Covenant does not require that an individual exhaust all imaginable remedies that are not effective or available. In the instant case, the author has been subjected to criminal proceedings for subordination in peace time. Counsel recalls that the requirement of exhaustion of domestic remedies does not apply when the domestic remedy is ineffective and provides no chance of success, or when due to circumstances an existing remedy has become impossible or ineffective. The author awaited the outcome of the effective domestic remedies concerning the criminal proceedings before coming to the Committee. As far as administrative remedies are concerned, the author has never been notified of an administrative decision against which he could have appealed. In the absence of such a decision, exhaustion of administrative remedies is illusory. In this context, counsel recalls that the letter sent by the author to the military authorities was a simple notification, and did not contain any request requiring an answer from the military authorities. Counsel concludes that administrative remedies were not available to the author at the time.

9.2. As to the merits, counsel submits that at issue are the modalities of civil service for conscientious objectors. He submits that the double length of this service was not justified by any reason of public order and refers in this context to paragraph 3 of article 18 of the Covenant which provides that the right to manifest one's religion or beliefs may be subject only to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedom of others. He also refers to the Committee's general comment No. 22 where the Committee stated that restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner. He argues that the imposition upon conscientious objectors of civil service of double length as that of the military service constitutes a discriminatory restriction, because the manifestation of a conviction such as the refusal to carry arms, does not in itself affect the public safety, order, health, or morals or the fundamental rights and freedoms of others since the law expressly recognizes the right to conscientious objection.

9.3. Counsel states that, contrary to what the State party has submitted, persons who requested status as a conscientious objector were subject to administrative verification and did not have a choice as to the conditions of service. In this context, counsel refers to the legal requirements that a request had to be submitted before the 15th of the month of incorporation into the military service, and that it had to be justified. Thus, the Minister for the Armed Forces might refuse a request and no automatic right to conscientious objector status existed. According to counsel, it is therefore clear that the reasons given by the conscientious objector were being tested.

9.4. Counsel rejects the State party's argument that the author himself had made an informed choice as to the kind of service he was going to perform. Counsel emphasizes that the author made his choice on the basis of his conviction, not on the basis of the length of service. He had no choice in the modalities of the service. Counsel argues that no reasons of public order exist to justify that the length of civil service for conscientious objectors be twice the length of military service.

9.5. Counsel maintains that the length of service constitutes discrimination on the basis of opinion. Referring to the Committee's Views in communication No. 295/1988 (Järvinen v. Finland), counsel submits that the present case is to be distinguished, since in the earlier case the extra length of service was justified, in the opinion of the majority in the Committee, by the absence of administrative formalities in having the status of conscientious objector recognized.

9.6. As far as other forms of civil service are concerned, especially those doing international cooperation service, counsel rejects the State party's argument that these were often performed in difficult conditions and on the contrary, asserts that this service was often fulfilled in another European country and under pleasant conditions. Those performing the service moreover built up a professional experience. According to counsel, the conscientious objector did not draw any benefit from his service. As regards the State party's argument that the extra length of service is a test for the seriousness of a person's objections, counsel argues that to test the seriousness of conscientious objectors constitutes in itself a flagrant discrimination, since those who applied for another form of civil service were not being subjected to a test of their sincerity. With regard to the advantages mentioned by the State party (such as no obligation to carry a uniform, not being under military discipline), counsel notes that the same advantages were being enjoyed by those performing other kinds of civil service and that these did not exceed 16 months. With regard to the State party's argument that the conscientious objectors received a higher pay than those performing military service, counsel notes that they worked in structures where they were treated as employees and that it was thus normal that they would receive a certain remuneration. He states that the pay was little in comparison with the work done and much less than that received by normal employees. According to counsel, those performing cooperation service were better paid.

Issues and proceedings before the Committee

10.1. The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1 of the Optional Protocol.

10.2. The Committee has noted the State party's request for a review of the Committee's admissibility decision in the present case. The Committee takes this opportunity to clarify its decision on admissibility and in particular to respond to the State party's concerns. The Committee emphasizes that under article 5(2)(b) of the Optional Protocol an individual, at the material time, has to exhaust available domestic remedies within the time and form as required by domestic legislation. In the instant case, the author was charged with and found guilty of insubordination. The Court of Appeal of Montpellier dismissed his appeal, and a further appeal to the Court of Cassation would not have succeeded, since that Court had recently rejected three cases similar to the author's. In this context, the Committee notes that the State party has not shown how an administrative tribunal could have taken a different position than that of the highest court of the country on the author's argument that the length of service for conscientious objectors was in breach of the State's international obligations. There is thus no reason to revise the decision on admissibility and the Committee continues with the examination of the communication on its merits.

10.3. The Committee has noted the State party's argument that the author is not a victim of any violation, because he was not convicted for his personal beliefs, but for deserting the service freely chosen by him. The Committee notes, however, that during the proceedings before the courts, the author raised the right to equality of treatment between conscientious objectors and military conscripts as a defence justifying his desertion and that the courts' decisions refer to such claim. It also notes that the author contends that, as a conscientious objector to military service, he had no free choice in the service that he had to perform. The Committee therefore considers that the author qualifies as a victim for purposes of the Optional Protocol.

10.4. The issue before the Committee is whether the specific conditions under which alternative service had to be performed by the author constitute a violation of the Covenant. The Committee observes that under article 8 of the Covenant, States parties may require service of a military character and, in case of conscientious objection, alternative national service, provided that such service is not discriminatory. The author has claimed that the requirement, under French law, of a length of 24 months for national alternative service, rather than 12 months for military service, is discriminatory and violates the principle of equality before the law and equal protection of the law set forth in article 26 of the Covenant. The Committee reiterates its position that article 26 does not prohibit all differences of treatment. Any differentiation, as the Committee has had the opportunity to state repeatedly, must however be based on reasonable and objective criteria. In this context, the Committee recognizes that the law and practice may establish differences between military and national alternative service and that such differences may, in a particular case, justify a longer period of service, provided that the differentiation is based on reasonable and objective criteria, such as the nature of the specific service concerned or the need for a special training in order to accomplish that service. In the present case, however, the reasons forwarded by the State party do not refer to such criteria or refer to criteria in general terms without specific reference to the author's case, and are rather based on the argument that doubling the length of service was the only way to test the sincerity of an individual's convictions. In the Committee's view, such argument does not satisfy the requirement that the difference in treatment involved in the present case was based on reasonable and objective criteria. In the circumstances, the Committee finds that a violation of article 26 occurred, since the author was discriminated against on the basis of his conviction of conscience.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

G. Communication Nos. 690/1996 and 691/1996, Venier & Nicolas v. France

(Views adopted on 10 July 2000, sixty‑ninth session)*

Submitted by:	Marc Venier and Paul Nicolas (represented by François Roux, legal counsel)
Alleged victim:	The authors
State party:	France
Date of communications:	14 and 17 November 1995
Date of admissibility decision:	11 July 1997

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 10 July 2000,

Having concluded its consideration of communications No. 690/1996 & 691/1996 submitted to the Human Rights Committee by Marc Venier and Paul Nicolas under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the authors of the communication, and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The authors of the communications, dated 14 and 17 November 1995, are Marc Venier and Paul Nicolas, French citizens born in 1967 and 1968, respectively, and currently domiciled at Audincourt, France and Gabarret, France, respectively. They claim to be victims of violations by France of articles 18, 19 and 26, juncto article 8, of the International Covenant on Civil and Political Rights. The authors are represented by counsel, François Roux.

* The following members of the Committee participated in the examination of the present communication: Mr. Nisuke Ando, Mr. P.N. Bhagwati, Lord Colville, Ms. Elizabeth Evatt, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski, Mr. Maxwell Yalden, Mr. Abdallah Zakhia. Under rule 85 of the Committee's rules of procedure, Ms. Christine Chanet did not participate in the examination of the case. The text of an individual opinion by Committee members Nisuke Ando, Eckart Klein, David Kretzmer and Abdallah Zakhia is appended to this document.

The facts as submitted by the authors

2.1 The authors, recognized conscientious objectors, began their civilian service duties on 23 June 1988 (Mr. Nicolas) and 16 November 1989 (Mr. Venier). After approximately one year of service, the authors notified the authorities that they intended to cease performing their civilian service duties, and did so on 1 July 1989 and 1 February 1991, respectively. The authors invoked the allegedly discriminatory character of article 116 (6) of the National Service Code (Code du service national), pursuant to which conscientious objectors were required to perform civilian national service duties for a period of 24 months, whereas military service did not exceed 12 months.

2.2 The authors were charged before the Criminal Court (Tribunal Correctionnel) of Paris and the Criminal Court of Orléans, respectively, with desertion in peacetime, pursuant to articles 398 and 399 of the Code of Military Justice. On 4 July 1991, the Criminal Court of Paris found Mr. Nicolas guilty as charged and sentenced him to one year's imprisonment; on 17 June 1992 the Criminal Court of Orléans found Mr. Venier also guilty and sentenced him to 10 months' imprisonment, rejecting the arguments of the defence, which had invoked articles 9, 10 and 14 of the European Convention on Human Rights and articles 18 and 19 of the Covenant.

2.3 On appeal by Mr. Nicolas, the Paris Court of Appeal confirmed the guilty verdict but modified the sentence into a two months' suspended prison sentence. On 8 February 1993, the Court of Appeal of Orléans confirmed the Criminal Court's decision concerning Mr. Venier but reduced the sentence to eight months' imprisonment (of which six months were suspended). On 14 December 1994, the Court of Cassation rejected the authors' further appeals, holding that article 116 (6) of the National Service Code was not discriminatory and did not violate articles 9, 10 and 14 of the European Convention on Human Rights. With that latter decision, all available remedies are said to have been exhausted.

The complaints

3.1 According to the authors, both article 116 (6) of the National Service Code (in its version of July 1983 prescribing a period of 24 months of civilian service for conscientious objectors) and article L.2 of the National Service Code in its version of January 1992 (as amended by Act No. 92n9 of 4 January 1992), which sets the duration of civilian service for conscientious objectors at 20 months, violates articles 18, 19 and 26, juncto article 8 of the Covenant in that they double the duration of service for conscientious objectors in comparison with that for persons performing military service.

3.2 The authors acknowledge that in case No. 295/1988 the Committee has held that an extended period of alternative service was neither unreasonable nor punitive, and has found no violation of the Covenant. However, they invoke and quote at length from the individual opinions appended to the Committee's Views by three of its members, who had concluded that the challenged legislation was not based on either reasonable or objective criteria, such as a more severe type of service or the need for special training to perform the longer service. The authors fully endorse the conclusions of those three members of the Committee.

3.3 The authors observe that under articles L.116 (2) to L.116 (4) of the National Service Code, each application for recognition as a conscientious objector has to be approved by the Minister for the Armed Forces. If he refuses, an appeal to the Administrative Tribunal is possible under article L.116 (3). In such circumstances, the authors argue, it cannot be assumed that the length of civilian service was fixed purely for reasons of administrative convenience, since anyone agreeing to perform civilian service twice as long as military service should be deemed to have genuine convictions. Rather, the length of civilian service must be deemed to have a punitive character, which is not based on reasonable or objective criteria.

3.4 In support of their contention, the authors invoke a judgement of the Italian Constitutional Court of July 1989, which held that the provision for non‑military service lasting eight months longer than military service was incompatible with the Italian Constitution. They further point to a decision adopted by the European Parliament in 1967 which, on the basis of article 9 of the European Convention on Human Rights, suggested that the duration of alternative service should be the same as that of military service. Moreover, the Committee of Ministers of the Council of Europe has declared that alternative service must not have a punitive character and that its duration, in relation to military service, must remain within reasonable limits (Recommendation No. R(87)8 of 9 April 1987). Finally, the authors note that the United Nations Commission on Human Rights declared, in a resolution adopted on 5 March 1987, that conscientious objection to military service should be regarded as a legitimate exercise of the right to freedom of thought, conscience and religion, as recognized by the Covenant.

3.5 In these circumstances, the authors submit that requiring them to perform civilian service that is twice as long as military service constitutes unlawful and prohibited discrimination on the basis of opinion, and that the possibility of imprisonment for refusal to perform civilian service beyond the length of time of military service constitutes a violation of articles 18, paragraph 2, 19, paragraph 1, and 26 of the Covenant.

The State party's observations on admissibility and the authors' comments thereon

4.1 The State party contends firstly that the communications are incompatible ratione materiae with the provisions of the Covenant since, on the one hand, the Committee has acknowledged in its decision on communication No. 185/1984 (L.T.K. v. Finland) that "the Covenant does not provide for the right to conscientious objection; neither article 18 nor article 19 of the Covenant, especially taking into account paragraph 3 (c) (ii) of article 8, can be construed as to imply that right" and since, on the other hand, by virtue of article 8, paragraph 3 (c) (ii) of the Covenant, the internal regulation of national service, and therefore of conscientious objector status for those States which recognize it, does not fall within the scope of the Covenant and remains a matter for domestic legislation.

4.2 Subsidiarily, the State party contends that domestic remedies have not been exhausted by the authors. In this connection, it submits that the authors of the communications have exhausted the judicial remedies open to them, but have not exhausted all administrative remedies. The argument put forward in this connection is that, by leaving their duty stations before having received replies from the military authorities concerning their requests for a reduction in the

length of their service, the authors violated the provisions of the National Service Code, thus becoming liable to criminal prosecution, and did not wait for the military authorities to refuse their requests and then bring the matter before the Administrative Tribunal.

4.3 Third and last, the State party contends that the authors do not qualify as victims of a violation of articles 18, paragraph 2, 19, paragraph 1, and 26 of the Covenant. With regard to articles 18 and 19 of the Covenant, the State party claims that by recognizing conscientious objector status and offering conscripts a choice as to the form of their national service, it allows them to opt freely for the national service appropriate to their beliefs, thus enabling them to exercise their rights under articles 18 and 19 of the Covenant. In this connection, the State party concludes, quoting the decision on communication No. 185/1984 cited above, that as the authors were "not prosecuted and sentenced because of [their] beliefs or opinions as such, but because [they] refused to perform military service", they cannot therefore claim to be victims of a violation of articles 18 and 19 of the Covenant.

4.4 With regard to the alleged violation of article 26 of the Covenant, the State party, noting that the authors complain of a violation of this article because the length of alternative civilian service is double that of military service, submits first of all that "the Covenant, while prohibiting discrimination and guaranteeing equal protection of the law to everyone, does not prohibit all differences of treatment", which must be "based on reasonable and objective criteria" (communication No. 196/1985, Gueye v. France). The State party argues in this connection that the situation of conscripts performing alternative civilian service differs from that of those performing military service, notably in respect of the heavier constraints of service in the army, and that a longer period of alternative civilian service constitutes a test of the sincerity of conscientious objectors, designed to prevent conscripts from claiming conscientious objector status for reasons of comfort, ease and security. The State party also quotes the Committee's Views on communication No. 295/1988 (Järvinen v. Finland), where the Committee held that the 16‑month period of alternative service imposed for conscientious objectors ‑ double the eight‑month period of military service ‑ was "neither unreasonable nor punitive". The State party therefore concludes that the difference of treatment complained of by the authors is based on the principle of equality, which requires different treatment of different situations.

4.5 For all of these reasons, the State party requests the Committee to declare the communications inadmissible.

5.1 Concerning the State party's first argument as to the Committee's competence ratione materiae, the authors cite the Committee's General Comment No. 22 (48), where it is stated that the right to conscientious objection "can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief. When this right is recognized by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs; likewise, there shall be no discrimination against conscientious objectors because they have failed to perform military service". According to the authors, it is clear from these comments that the Committee is competent to determine whether or not there has been a violation of the right to conscientious objection under article 18 of the Covenant.

5.2 The authors claim that the problem posed in their case lies not in a possible infringement of conscientious objectors' freedom of belief by French legislation, but in the conditions for the exercise of that freedom, since alternative civilian service is twice the length of military service, without this being justified by any provision to protect public order, in violation of article 18, paragraph 3, of the Covenant. The authors invoke in this context the Committee's General Comment No. 22 (48), which states that "limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18. (...) Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner", and conclude that requiring conscientious objectors to perform alternative civilian service which is twice the length of military service constitutes a discriminatory restriction on the enjoyment of the rights set forth in article 18 of the Covenant.

5.3 As to the question of the exhaustion of domestic remedies, the authors state that domestic remedies in respect of the criminal proceedings brought against them have, in fact, been exhausted since the Court of Cassation dismissed their appeals against the Court of Appeal judgements on 14 December 1994. With regard to the non‑exhaustion of administrative remedies, the authors maintain that such remedies were not open to them inasmuch as, not having been notified of any administrative decision, they could not bring the matter before the Administrative Tribunal.

5.4 Concerning the alleged violation of article 26, the authors claim that requiring a period of civilian service twice the length of military service constitutes a difference of treatment which is not based on "reasonable and objective criteria" and therefore constitutes discrimination prohibited by the Covenant (communication No. 196/1985 cited above). In support of this conclusion, the authors argue that there is no justification for making civilian service twice the length of military service; in fact, unlike in the Järvinen case (communication No. 295/1988 cited above), the longer duration is not justified by any relaxation of the administrative procedures for obtaining conscientious objector status since, under articles L.116 (2) and L.116 (4) of the National Service Code, applications for conscientious objector status are subject to approval by the Minister for the Armed Forces following an examination which may result in refusal. Nor is it justified in the general interest or as a test of the seriousness and sincerity of the beliefs of the conscientious objector. Indeed, the mere fact of taking special steps to test the sincerity and seriousness of the beliefs of conscientious objectors in itself constitutes discrimination based on the recognition of a difference of treatment between conscripts. Furthermore, conscientious objectors derive no benefit or privilege from their status ‑ unlike, for example, persons assigned to perform international cooperation services instead of military service, who have the opportunity to work abroad in a professional field corresponding to their university qualifications for 16 months (i.e. four months less than the civilian service for conscientious objectors) ‑ and a difference of treatment is not, therefore, justified on that ground.

The Committee's decision on admissibility

6.1 At its sixtieth session, the Committee decided to join the consideration of communications Nos. 690/1996 and 691/1996. It then proceeded to consider the admissibility of the communications.

6.2 Concerning the requirement of exhaustion of available domestic remedies, the Committee took note of the fact that the authors had exhausted all the judicial remedies that were open to them. The Committee also considered that administrative remedies were not available to the authors of the communications. The Committee therefore concluded that it was not prevented by article 5, paragraph 2 (b), of the Optional Protocol from dealing with the communications.

6.3 The Committee took note of the State party's arguments concerning the incompatibility of the communications ratione materiae with the provisions of the Covenant. In this regard, the Committee considered that the matter raised in the communications did not concern a violation of the right to conscientious objection as such. The Committee considered that the authors had sufficiently substantiated their claim, for the purposes of admissibility, that the communications might raise issues under provisions of the Covenant.

7. Accordingly, on 11 July 1997, the Committee decided that the communications were admissible.

The State party's observations on the merits of the communication

8.1 By submission of 18 June 1998, the State party argues that the communication should be rejected because the authors are not victims of a violation of the Covenant, and because their complaints are ill‑founded.

8.2 According to the State party, article L.116 of the National Service Code in its version of July 1983 instituted a genuine right to conscientious objection, in the sense that the sincerity of the objections is said to be shown by the request alone, if presented in accordance with the legal requirements (that is, justified by an affirmation of the applicant that he has personal objections to using weapons). No verification of the objections took place. To be admissible, requests had to be presented on the 15th of the month preceding the incorporation into the military service. Thus a request could only be rejected if it was not justified or if it was not presented in time. A right to appeal existed to the administrative tribunal.

8.3 Although the normal length of military service since January 1992 in France was 10 months, some forms of national service lasted 12 months (military service of scientists) and 16 months (civil service of technical assistance). The length of the service for conscientious objectors was 20 months. The State party denies that the length has a punitive or discriminatory character. It is said to be the only way to verify the seriousness of the objections, since the objections are no longer tested by the administration. After having fulfilled their service, conscientious objectors have the same rights as those who have finished civil national service.

8.5 According to the State party, its system of conscientious objection was in accordance with the requirements of articles 18, 19 and 26 of the Covenant, and with the Committee's general comment No. 22. The State party notes that its regime for conscientious objection did not make any difference on the basis of belief, and no process of verification of the justification forwarded by the applicants occurred, other than in many neighbouring countries. No discrimination existed against conscientious objectors, as their service was a recognised form of the national service, on equal footing with military service or other forms of civil service. In 1997, just under 50 per cent of those performing civil service were doing this on the basis of conscientious objections to military service.

8.6 The State party submits that the authors of the present communications have not been victims of discrimination on the basis of their choice to perform national service as a conscientious objector. It notes that they were convicted for not complying with their obligations under the civil service, which they had freely chosen. Their convictions were thus not because of their personal beliefs, nor on the basis of their choice for alternative civil service, but on the basis of their refusal to respect the conditions of that type of service. The State party notes that at the time when the authors requested to perform alternative military service, they had not indicated any objection to the length of service. Moreover, in the case of Mr. Venier, the State party notes that the reason which he gave for abandoning his civil service, was "the attitude of his country towards the Third World", and thus unrelated to the alleged discriminatory character of the length of service for conscientious objectors. In this context, the State party notes that it would have been open to the authors to choose another form of unarmed national service, such as one of technical assistance. On this basis, the State party argues that the authors have not established that they are victims of a violation by the State party.

8.7 Subsidiarily, the State party argues that the authors' claims are ill‑founded. In this context, the State party recalls that according to the Committee's own jurisprudence, not all differences in treatment constitute discrimination, as long as they are based on reasonable and objective criteria. In this context, the State party refers to the Committee's Views in case No. 295/1988 (Järvinen v. Finland), where the service for conscientious objectors was 16 months and that for other conscripts 8 months, but the Committee found that no violation of the Covenant had occurred because the length of the service ensured that those applying for conscientious objector status would be serious, since no further verification of the objections occurred. The State party submits that the same reasoning should apply to the present cases.

8.8 In this context, the State party also notes that the conditions of the alternative civil service were less onerous than that of military service. The conscientious objectors had a wide choice of posts. They could also propose their own employer and could do their service within their professional interest. They also received a higher indemnity than those serving in the armed forces. In this context, the State party rejects counsel's claim that the persons performing international cooperation service received privileged treatment vis à vis conscientious objectors, and submits that those performing international cooperation service did so in often very difficult situations in a foreign country, whereas the conscientious objectors performed their service in France. In the case of Mr. Venier, he performed his civil service with the secretariat of the "Movement for a non‑violent alternative", whereas Mr. Nicolas was posted with the international civil service in Ile de France.

8.9 The State party concludes that the length of service for the authors of the present communications had no discriminatory character compared with other forms of civil service or military service. The differences that existed in the length of the service were reasonable and reflected objective differences between the types of service. Moreover, the State party submits that in most European countries the time of service for conscientious objectors is longer than military service.

Counsel's comments on the State party's submission

9.1 In his comments, dated 21 December 1998, counsel submits that at issue are the modalities of civil service for conscientious objectors. He submits that the double length of this service was not justified by any reason of public order and refers in this context to paragraph 3 of article 18 of the Covenant which provides that the right to manifest one's religion or beliefs may be subject only to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. He also refers to the Committee's general comment No. 22 where the Committee stated that restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner. He argues that the imposition upon conscientious objectors of civil service of double length as that of the military service constitutes a discriminatory restriction, because the manifestation of a conviction such as the refusal to carry arms, does not in itself affect the public safety, order, health, or morals or the fundamental rights and freedoms of others since the law expressly recognizes the right to conscientious objection.

9.2 Counsel states that, contrary to what the State party has submitted, persons who requested status as a conscientious objector were subject to administrative verification and did not have a choice as to the conditions of service. In this context, counsel refers to the legal requirements that a request had to be submitted before the 15th of the month of incorporation into the military service, and that it had to be reasoned. Thus, the Minister for the Armed Forces might refuse a request and no automatic right to conscientious objector status existed. According to counsel, it is therefore clear that the reasons given by the conscientious objector were being tested.

9.3 Counsel rejects the State party's argument that the authors had made an informed choice as to the kind of service they were going to perform. Counsel emphasizes that they made their choice on the basis of their convictions, not on the basis of the length of service. They had no choice in the modalities of the service. Counsel argues that no reasons of public order exist to justify that the length of civil service for conscientious objectors be twice the length of military service.

9.5 As far as other forms of civil service are concerned, especially those doing international cooperation service, counsel rejects the State party's argument that these were often performed in difficult conditions and on the contrary, asserts that this service was often fulfilled in another European country and under pleasant conditions. Those performing the service moreover built up a professional experience. According to counsel, the conscientious objector did not draw any benefit from his service. As regards the State party's argument that the extra length of service is a test for the seriousness of a person's objections, counsel argues that to test the seriousness of conscientious objectors constitutes in itself a flagrant discrimination, since those who applied for another form of civil service were not being subjected to a test of their sincerity. With regard to the advantages mentioned by the State party (such as no obligation to carry a uniform, not being under military discipline), counsel notes that the same advantages were being enjoyed by those performing other kinds of civil service and that these did not exceed 16 months. With regard to the State party's argument that the conscientious objectors received a higher pay than those performing military service, counsel notes that they worked in structures where they were treated as employees and that it was thus normal that they would receive a certain remuneration. He states that the pay was little in comparison with the work done and much less than that received by normal employees. According to counsel, those performing cooperation service were better paid.

Issues and proceedings before the Committee

10.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1 of the Optional Protocol.

10.2 The Committee has noted the State party's argument that the authors are not victims of any violation, because they were not convicted for their personal beliefs, but for deserting the service freely chosen by them. The Committee notes, however, that during the proceedings before the courts, the authors raised the right to equality of treatment between conscientious objectors and military conscripts as a defence justifying their desertion and that the courts' decisions refer to such claim. It also notes that the authors contend that, as conscientious objectors to military service, they had no free choice in the service that they had to perform. The Committee therefore considers that the authors qualify as victims for purposes of the Optional Protocol.

10.4 The issue before the Committee is whether the specific conditions under which alternative service had to be performed by the authors constitute a violation of the Covenant. The Committee observes that under article 8 of the Covenant, States parties may require service of a military character and, in case of conscientious objection, alternative national service, provided that such service is not discriminatory. The authors have claimed that the requirement, under French law, of a length of 24 months for national alternative service, rather than 12 months for military service, is discriminatory and violates the principle of equality before the law and equal protection of the law set forth in article 26 of the Covenant. The Committee reiterates its position that article 26 does not prohibit all differences of treatment. Any differentiation, as the Committee has had the opportunity to state repeatedly, must however be based on reasonable and objective criteria. In this context, the Committee recognizes that the law and practice may establish differences between military and national alternative service and that such differences may, in a particular case, justify a longer period of service, provided that the differentiation is based on reasonable and objective criteria, such as the nature of the specific service concerned or the need for a special training in order to accomplish that service. In the present case, however, the reasons forwarded by the State party do not refer to such criteria or refer to criteria in general terms without specific reference to the authors' cases, and are rather based on the argument that doubling the length of service was the only way to test the sincerity of an individual's convictions. In the Committee's view, such argument does not satisfy the requirement that the difference in treatment involved in the present cases was based on reasonable and objective criteria. In the circumstances, the Committee finds that a violation of article 26 occurred, since the authors were discriminated against on the basis of their conviction of conscience.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

H. Communication No. 694/1996, Waldman v. Canada

(Views adopted on 3 November 1999, sixty‑seventh session)*

Submitted by:	Arieh Hollis Waldman (Initially represented by Mr. Raj Anand)
Alleged victim:	The author
State party:	Canada
Date of communication:	29 February 1996

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 3 November 1999,

Having concluded its consideration of communication No. 694/1996 submitted to the Human Rights Committee on behalf of Arieh Hollis Waldman, under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication, his counsel and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.1 The author of the communication is Mr. Arieh Hollis Waldman, a Canadian citizen residing in the province of Ontario. He claims to be a victim of a violation of articles 26, and articles 18(1), 18(4) and 27 taken in conjunction with article 2(1).**

_______________

* The following members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra N. Bhagwati, Ms. Christine Chanet, Lord Colville, Ms. Elizabeth Evatt, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Fausto Pocar, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski and Mr. Abdallah Zakhia. Pursuant to rule 85 of the Committee's rules of procedure Mr. Maxwell Yalden did not participate in the examination of the case. The text of an individual opinion by member Martin Scheinin is appended to this document.

** The author was represented by Mr. Raj Anand from Scott and Aylen, a law firm in Toronto, Ontario, until 1998.

1.2 The author is a father of two school‑age children and a member of the Jewish faith who enrols his children in a private Jewish day school. In the province of Ontario Roman Catholic schools are the only non‑secular schools receiving full and direct public funding. Other religious schools must fund through private sources, including the charging of tuition fees.

1.3 In 1994 Mr. Waldman paid $14,050 in tuition fees for his children to attend Bialik Hebrew Day School in Toronto, Ontario. This amount was reduced by a federal tax credit system to $10,810.89. These tuition fees were paid out of a net household income of $73,367.26. In addition, the author is required to pay local property taxes to fund a public school system he does not use.

The facts

2.1 The Ontario public school system offers free education to all Ontario residents without discrimination on the basis of religion or on any other ground. Public schools may not engage in any religious indoctrination. Individuals enjoy the freedom to establish private schools and to send their children to these schools instead of the public schools. The only statutory requirement for opening a private school in Ontario is the submission of a "notice of intention to operate a private school". Ontario private schools are neither licensed nor do they require any prior Government approval. As of 30 September 1989, there were 64,699 students attending 494 private schools in Ontario. Enrolment in private schools represents 3.3 percent of the total day school enrolment in Ontario.

2.2 The province of Ontario's system of separate school funding originates with provisions in Canada's 1867 constitution. In 1867 Catholics represented 17 per cent of the population of Ontario, while Protestants represented 82 per cent. All other religions combined represented .2 per cent of the population. At the time of Confederation it was a matter of concern that the new province of Ontario would be controlled by a Protestant majority that might exercise its power over education to take away the rights of its Roman Catholic minority. The solution was to guarantee their rights to denominational education, and to define those rights by referring to the state of the law at the time of Confederation.

2.3 As a consequence, the 1867 Canadian constitution contains explicit guarantees of denominational school rights in section 93. Section 93 of the Constitution Act, 1867 grants each province in Canada exclusive jurisdiction to enact laws regarding education, limited only by the denominational school rights granted in 1867. In Ontario, the section 93 power is exercised through the Education Act. Under the Education Act every separate school is entitled to full public funding. Separate schools are defined as Roman Catholic schools. The Education Act states: "1. (1) 'separate school board' means a board that operates a school board for Roman Catholics; ... 122. (1) Every separate school shall share in the legislative grants in like manner as a public school". As a result, Roman Catholic schools are the only religious schools entitled to the same public funding as the public secular schools.

2.4 The Roman Catholic separate school system is not a private school system. Like the public school system it is funded through a publicly accountable, democratically elected board of education. Separate School Boards are elected by Roman Catholic ratepayers, and these school boards have the right to manage the denominational aspects of the separate schools. Unlike private schools, Roman Catholic separate schools are subject to all Ministry guidelines and regulations. Neither s.93 of the Constitution Act 1867 nor the Education Act provide for public funding to Roman Catholic private/independent schools. Ten private/independent Roman Catholic schools operate in Ontario and these schools receive no direct public financial support.

2.5 Private religious schools in Ontario receive financial aid in the form of (1) exemption from property taxes on non‑profit private schools; (2) income tax deductions for tuition attributable to religious instruction; and (3) income tax deductions for charitable purposes. A 1985 report concluded that the level of public aid to Ontario private schools amounted to about one‑sixth of the average total in cost per pupil enrolled in a private school. There is no province in Canada in which private schools receive funding on an equal basis to public schools. Direct funding of private schools ranges from 0 per cent (Newfoundland, New Brunswick, Ontario) to 75 per cent (Alberta).

2.6 The issue of public funding for non‑Catholic religious schools in Ontario has been the subject of domestic litigation since 1978. The first case, brought 8 February 1978, sought to make religious instruction mandatory in specific schools, thereby integrating existing Hebrew schools into public schools. On 3 April 1978, affirmed 9 April 1979, Ontario courts found that mandatory religious instruction in public schools was not permitted.

2.7 In 1982 Canada's constitution was amended to include a Charter of Rights and Freedoms which contained an equality rights provision. In 1985 the Ontario government decided to amend the Education Act to extend public funding of Roman Catholic schools to include grades 11 to 13. Roman Catholic schools had been fully funded from kindergarten to grade 10 since the mid‑1800s. The issue of the constitutionality of this law (Bill 30) in view of the Canadian Charter of Rights and Freedoms, was referred by the Ontario government to the Ontario Court of Appeal in 1985.

2.8 On 25 June 1987 in the Bill 30 case the Supreme Court of Canada upheld the constitutionality of the legislation which extended full funding to Roman Catholic schools. The majority opinion reasoned that section 93 of the Constitution Act 1867 and all the rights and privileges it afforded were immune from Charter scrutiny. Madam Justice Wilson, writing the majority opinion stated: "It was never intended ... that the Charter could be used to invalidate other provisions of the constitution, particularly a provision such as s.93 which represented a fundamental part of the Confederation compromise."

2.9 At the same time the Supreme Court of Canada, in the majority opinion of Wilson, J. affirmed: "These educational rights, granted specifically to ... Roman Catholics in Ontario, make it impossible to treat all Canadians equally. The country was founded upon the recognition of special or unequal educational rights for specific religious groups in Ontario ...". In a concurring opinion in the Supreme Court, Estey J. conceded: "It is axiomatic (and many counsel before this court conceded the point) that if the Charter has any application to Bill 30, this Bill would be found discriminatory and in violation of ss. 2(a) and 15 of the Charter of Rights."

2.10 In a further case, Adler v. Ontario, individuals from the Calvinistic or Reformed Christian tradition, and members of the Sikh, Hindu, Muslim, and Jewish faiths challenged the constitutionality of Ontario's Education Act, claiming a violation of the Charter's provisions on freedom of religion and equality. They argued that the Education Act, by requiring attendance at school, discriminated against those whose conscience or beliefs prevented them from sending their children to either the publicly funded secular or publicly funded Roman Catholic schools, because of the high costs associated with their children's religious education. A declaration was also sought stating that the applicants were entitled to funding equivalent to that of public and Roman Catholic schools. The Ontario Court of Appeal determined that the crux of Adler was an attempt to revisit the issue which the Supreme Court of Canada had already disposed of in the Bill 30 case. Chief Justice Dubin stated that the Bill 30 case was "really quite decisive of the discrimination issue in these appeals". They also rejected the argument based on freedom of religion.

2.11 On appeal, the Supreme Court of Canada by judgement of 21 November 1996, confirmed that its decision in the Bill 30 case was determinative in the Adler litigation, and found that the funding of Roman Catholic separate schools could not give rise to an infringement of the Charter because the province of Ontario was constitutionally obligated to provide such funding.

The complaint

3.1 The author contends that the legislative grant of power to fund Roman Catholic schools authorized by section 93 of the Constitution Act of Canada 1867, and carried out under sections 122 and 128 of the Education Act (Ontario) violates Article 26 of the Covenant. The author states that these provisions create a distinction or preference which is based on religion and which has the effect of impairing the enjoyment or exercise by all persons, on an equal footing, of their religious rights and freedoms. He argues that the conferral of a benefit on a single religious group cannot be sustained. When a right to publicly financed religious education is recognized by a State party, no differentiation should be made among individuals on the basis of the nature of their particular beliefs. The author maintains that the provision of full funding exclusively to Roman Catholic schools cannot be considered reasonable. The historical rationale for the Ontario government's discriminatory funding practice, that of protection of Roman Catholic minority rights from the Protestant majority, has now disappeared, and if anything has been transferred to other minority religious communities in Ontario. It is also unreasonable in view of the fact that other Canadian provinces and territories do not discriminate on the basis of religion in allocating education funding.

3.2 The author also claims that Ontario's school funding practices violate Article 18(1) taken in conjunction with Article 2. The author states that he experiences financial hardship in order to provide his children with a Jewish education, a hardship which is not experienced by a Roman Catholic parent seeking to provide his children with a Roman Catholic education. The author claims that such hardship significantly impairs, in a discriminatory fashion, the enjoyment of the right to manifest one's religion, including the freedom to provide a religious education for one's children, or to establish religious schools.

3.3 The author further points out that this violation is not sustainable under the limitation provisions of article 18(3), which only permits those limitations which are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedom of others. According to the author, a limitation established to protect morals may not be based on a single tradition.

3.4 The author further asserts that when a right to publicly financed religious education is recognized by a State party, no differentiation should be made on the basis of religion. The full and direct public funding of Roman Catholic schools in Ontario does not equally respect the liberty of non‑Roman Catholics to choose an education in conformity with a parent's religious convictions, contrary to Article 18(4) taken together with Article 2.

3.5 The author states that Article 27 recognizes that separate school systems are crucial to the practice of religion, that these schools form an essential link in preserving community identity and the survival of minority religious groups and that positive action may be required to ensure that the rights of religious minorities are protected. Since Roman Catholics are the only religious minority to receive full and direct funding for religious education from the government of Ontario, Article 27 has not been applied, as required by Article 2, without distinction on the basis of religion.

State party's observations

4.1 By note of 29 April 1997, the State party agrees to the combined consideration of admissibility and merits of the communication by the Committee.

4.2 In its submission of February 1998, the State party denies that the facts of the case disclose violations of articles 2, 18, 26 and 17 of the Covenant.

4.3.1 With regard to the alleged violation of article 26, the State party contends the communication is inadmissible ratione materiae, or, in the alternative, does not constitute a violation. The State party recalls that a differentiation in treatment based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26. It refers to the Committee's jurisprudence in communication No. 191/1985, where the Committee found that the State party was not violating article 26 by not providing the same level of subsidy for private and public education, when the private system was not subject to State supervision. It also refers to the Committee's Views in communications Nos. 298/1988 and 299/1988, where the Committee decided that the State party could not be deemed to be under an obligation to provide the same benefits to private schools as to public schools, and that the preferential treatment given to public sector schooling was reasonable and based on objective criteria. The Committee also considered that the State party could not be deemed to discriminate against parents who freely choose not to avail themselves of benefits which are generally open to all.

4.3.2 The State party argues that its funding of public schools but not private schools is not discriminatory. All children of every or no religious denomination have the same right to attend free secular public schools maintained with tax funds. According to the State party, it is not a deprivation by the Government that a child or a parent voluntarily chooses to forego the exercise of the right to educational benefits provided in the public school system. The State party emphasizes that the province of Ontario does not fund any private schools, whether they are religious or not. The distinction made in the funding of schools is based not on religion, but on whether or not the school is a public or a private/independent institution.

4.3.3 According to the State party, the establishment of secular public institutions is consistent with the values of article 26 of the Covenant. Secular institutions do not discriminate against religion, they are a legitimate form of Government neutrality. According to the State party, a secular system is a tool which assists in preventing discrimination among citizens on the basis of their religious faiths. The State party makes no distinctions among different religious groups in its public education and does not limit any religious group's ability to establish private schools.

4.3.4 Apart from its obligations under the Constitution Act 1867, the State party provides no direct funding to religious schools. In such circumstances, the State party argues that it is not discriminatory to refuse funding for religious schools. In making its decision, the State party seeks to achieve the very values advanced by article 26, the creation of a tolerant society where there is respect and equality for all religious beliefs. The State party argues that it would defeat the purposes of article 26 itself if the Committee was to hold that because of the provisions in the Constitution Act 1867 requiring the funding of Roman Catholic schools, the State party now must fund all private religious schools, thus undermining its very ability to create and promote a tolerant society that truly protects religious freedom, when in the absence if the 1867 constitutional provision, it would have no obligation under the Covenant to fund any religious schools at all.

4.4.1. In relation to article 18, the State party refers to the travaux préparatoires which make it clear that article 18 does not include the right to require the State to fund private religious schools. During the drafting the question was expressly raised and answered in the negative. As a consequence, the State party argues that the author's claim under article 18 is inadmissible ratione materiae. In the alternative, the State party argues that its policy meets the guarantee of freedom of religion contained in article 18, because it provides a public school system which is open to persons of all religious beliefs and which does not provide instruction in a particular religion or belief, and because there is freedom to establish private religious schools and parents are free to send their children to such religious schools. The State party denies that paragraph 4 of article 18 obligates States to subsidize private religious schools or religious education. According to the State party, the purpose of article 18 is to ensure that religious observance, beliefs and practices remain a private matter, free from State coercion or restraint. It is the State's obligation to provide an education open and accessible to all children regardless of religion. There is no obligation to either offer or finance religious instruction or indoctrination. While the province must ensure that religious freedom and religious differences are accommodated within the public school system, it has no obligation to fund individuals who, for religious reasons, exercise their freedom to opt out of the public school system.

4.4.2 The State party argues that failure to act in order to facilitate the practice of religion cannot be considered State interference with freedom of religion. It points out that there are many spheres of government action which hold religious significance for religious believers and the State party rejects the suggestion that it must pay for religious dimensions in spheres in which it takes a role, such as religious marriages and religious community institutions such as churches and hospitals.

4.4.3 In the alternative, if the Committee were to interpret article 18 as requiring States to fund religious schools, the State party argues that its limitation meets the requirements of paragraph 3 of article 18 as it is prescribed by law and is necessary to protect public order and the fundamental rights and freedoms of others. The objectives of the State party's education system are the provision of a tuition‑free, secular public education, universally accessible to all residents without discrimination and the establishment of a public education system which fosters and promotes the values of a pluralist, democratic society, including social cohesion, religious tolerance and understanding. The State party argues that if it were required to fund private religious schools, this would have a detrimental impact on the public schools and hence the fostering of a tolerant, multicultural, non‑discriminatory society in the province.

4.4.4 Public schools, in the State party's opinion, are a rational means of fostering social cohesion and respect for religious and other differences. Schools are better able to teach common understanding and shared values if they are less homogeneous. The State party submits that one of the strengths of a public system of education is that it provides a venue where people of all colours, races, national and ethnic origins, and religions interact and try to come to terms with one another's differences. In this way, the public schools build social cohesion, tolerance and understanding. Extending public school funding rights to private religious schools will undermine this ability and may result in a significant increase in the number and kind of private schools. This would have an adverse effect on the viability of the public school system which would become the system serving students not found admissible by any other system. Such potential fragmentation of the school system is an expensive and debilitating structure for society. Moreover, extending public school funding rights to private religious schools could compound the problems of religious coercion and ostracism sometimes faced by minority religious groups in homogeneous rural areas of the province. The majority religious group could reintroduce and even make compulsory the practice of school prayer and religious indoctrination and minority religious groups would have to conform or attend their own, virtually segregated schools. To the extent that full funding of private schools enables such schools to supplant public schools, the government objective of universal access to education will be impaired. Full public funding of private religious schools is likely to lead to increased public school closings and to the reduction of the range of programs and services a public system can afford to offer.

4.4.5 The State party concludes that if the province of Ontario were required to fund private religious schools, this would have a detrimental impact on the public schools, and hence the fostering of a tolerant, multicultural, non‑discriminatory society in the province, thus undermining the fundamental rights and freedoms of others. According to the State party it has struck the appropriate balance by funding a public school system where members of all groups can learn together while retaining the freedom of parents to send children to private religious schools, at their own expense, if they do desire.

4.5.1 As to the author's allegation that he is a victim of a violation of article 18 in conjunction with article 2 of the Covenant, the State party recalls that article 2 does not establish an independent right but is a general undertaking by States and cannot be invoked by individuals under the Optional Protocol without reference to other specific articles of the Covenant. It cannot be argued that article 2 in combination with article 18 has been violated if there is no such right in article 18 itself.

4.5.2 Alternatively, the State party rejects a violation of article 2 because a differentiation based on reasonable and objective criteria does not amount to a distinction or discrimination within the meaning of article 2 of the Covenant. For substantive arguments concerning the issue of discrimination, it refers to its arguments relating to the alleged violation of article 26.

4.6.1 In respect to the alleged violation of article 27, the State party contends that the communication is inadmissible ratione materiae or in the alternative does not demonstrate a violation. According to the State party, the travaux préparatoires make it clear that article 27 does not include a right to require the State to fund private religious schools. The article only protects against State actions of a negative character: individuals "shall not be denied the right". A proposal to include an obligation to take positive measures was defeated. Although under article 27 a State party may be required to take certain positive actions, in the light of the intention of the drafters positive actions should be required only in rare circumstances. According to the State party, the province of Ontario has taken positive measures which protect the right of members of religious minorities to establish religious schools and to send their children to those schools. It is not further required to fund those schools.

4.6.2 In the alternative, restrictions on the rights contained in article 27 may occur where they have a reasonable and objective justification and are consistent with the provisions of the Covenant read as a whole. For the reasons given in relation to the creation of a tolerant society, Ontario's decision not to extend funding to all private religious schools meets this test for justification.

4.6.3 The State party refers to its arguments in relation to article 18 and reiterates that there can be no argument that article 27 in combination with article 2 has been violated if there is no such right in article 27 itself. In the alternative, there is no violation of article 2 because a differentiation based on reasonable and objective criteria does not amount to an invidious distinction or discrimination within the meaning of article 2. The State party refers to its arguments concerning article 26 above.

Author's comments

5.1 Counsel submits that the State party has admitted the discriminatory nature of the educational funding, and based this on a constitutional obligation. Counsel argues that article 26 of the Covenant does not allow exceptions for discriminatory constitutional laws and that historical anomalies cannot thwart the application of the equality provisions of the Covenant. Counsel rejects as circular the State party's argument that the difference between the funding of Roman Catholic schools and other religious schools is one between public and private schools. Counsel notes that the public quality of Roman Catholic schools is a bureaucratic construct assigned to one group of ratepayers based on their religious affiliation to the discriminatory exclusion of all other ratepayers.

5.2 Counsel rejects the State party's argument that the extension of non‑discriminatory public funding to other religious schools would harm the goals of a tolerant, multi‑cultural, non‑discriminatory society, and argues that on the contrary, the current circumstance of discriminatory and selective funding of only one religious denomination in the establishment and

operation of religious schools is highly detrimental to fostering a tolerant, non‑discriminatory society in the province and encourages the divided society among religious lines that it claims to defeat.

5.3 According to counsel, the State party's argument that the claim under article 18 is inadmissible ratione materiae because article 18 does not include a right to require the State to fund public schools, is a misrepresentation of the author's submissions. Counsel argues that article 18(1) includes the right to teach religion and the right to educate one's children in a religious school. If this is possible for some and not for others on discriminatory grounds, then article 18 is violated in conjunction with article 2. According to counsel, in order to give article 2 its full and proper meaning, it must have the effect of requiring non‑discrimination on the listed grounds with respect to the rights and freedoms in the Covenant, even if in the absence of discrimination, no violation of the Covenant existed. If a violation of the Covenant was always required without the application or consideration of article 2, article 2 would be superfluous, in counsel's opinion. Counsel clarifies that he does not claim a violation of article 18 on its own, but only in conjunction with article 2, because the funding of only Roman Catholic schools results in discriminatory support for Roman Catholic education.

5.4 According to counsel, the State party makes the same error in replying to his claims under article 27 in conjunction with article 2. He argues that, since Roman Catholic schools are the only religious minority to receive full and direct funding for religious education from the Government of Ontario, article 27 has not been applied, as required by article 2, without distinction on the basis of religion.

5.5 Counsel agrees with the State party that the fact alone that it does not provide the same level of funding for private as for public schools cannot be deemed to be discriminatory. He acknowledges that the public school system in Ontario would have greater resources if the Government would cease funding any religious schools. In the absence of discrimination, the withdrawal of such funding is a policy decision which is for the Government to take. Counsel notes that the amendment of the provision of the Canadian Constitution Act 1867 requires only the agreement of the Government of the province affected and the federal Government. Such amendments have been recently passed in Quebec and Newfoundland to reduce historical commitments to publicly‑funded education for selective religious denominations.

5.6 Counsel maintains that when a right to publicly financed religious education is recognized by States parties, no differentiation shall be made among individuals on the basis of the nature of their particular beliefs. The practice of exclusively funding Roman Catholic religious education in Ontario therefore violates the Covenant. Counsel therefore seeks funding for all religious schools which meet provincial standards in Ontario at a level equivalent to the funding, if any, received by Roman Catholic schools in Ontario.

State party's further observations

6.1 In a further reply, the State party emphasizes that the recent constitutional amendments affecting education in Quebec and Newfoundland do not bring about the remedy sought by the author of equivalent funding for all religious schools. The changes in Quebec preserve the denominational status of Catholic and Protestant schools in that province, and protect that status through an alternate constitutional means, by way of the notwithstanding clause in the Charter. The changes in Newfoundland demonstrate a clear rejection of the very remedy sought by the author, since it has replaced its religious based school system, where 8 different religions representing 90 per cent of the population each had the right to set up their own publicly funded schools, with a singular public system where religious observance will be permitted at the request of parents.

6.2 In respect of counsel's argument concerning article 2 of the Covenant, the State party rejects his suggestion that article 2 can convert laws or Government actions otherwise consistent with the rights and freedoms of the Covenant, into contraventions. In the State party's opinion, the author seeks to raise equality arguments by combining article 2 with articles 18 and 27 respectively. It is the equality guarantee in article 26 of the Covenant that is the proper context for raising such issues. The State party notes that article 26 has no equivalent in the European Convention for the Protection of Fundamental Human Rights and Fundamental Freedoms. The State party argues that a complainant who is unsuccessful under article 26 should not be entitled to an identical reexamination of the issue simply by combining article 2 with various substantive Covenant provisions.

6.3 The State party further observes that article 2 of the Covenant requires the State to respect and ensure to all individuals within its territory the rights recognized in the present Covenant. The funding of denominational separate schools in Ontario is not required to ensure the rights contained in articles 18 and 27 of the Covenant, neither is it related to, or in addition to, the obligations created by those articles. The funding arises solely out of the constitutional obligation under section 93(1) of the Constitution Act 1867, not out of any obligation under, in conformity with, nor the augmenting of any right in any of the articles of the Covenant.

Author's further comments

7. By submission of 15 March 1999, the author notes that the State party's rationale for the discriminatory treatment of religious schools, the desire to foster multiracial and multicultural harmony through maximizing public funding for the secular school system, would actually require the withdrawal of special funding for Roman Catholic separate schools. He further points out that the fact that Quebec had to resort to the notwithstanding clause in the Charter in order to preserve its funding for separate schools indicates that this system is in violation of the equality rights contained in the Charter, and by consequence of article 26 of the Covenant. The author refers to the constitutional changes in respect of the education system in Newfoundland and states that it is indicative of the fact that constitutional change in relation to denominational schools is possible even over the objections of those with vested interests.

State party's further observations

8.1 In a further reply to the author's comments, the State party contests the author's interpretation of the use of the notwithstanding clause in Quebec. According to the State party, the amendment to section 93 of the Constitution Act, 1867, took away the constitutional protection for Protestant and Catholic denominational schools in Quebec in order to replace them with linguistic school boards. Continued constitutional protection for the denominational

schools, however, is provided through the alternate method of the notwithstanding clause. According to the State party, this shows that the issue of denominational school funding continues to involve the present day complex balancing of diverse needs and interests.

8.2 The State party notes that in his comments, the author for the first time indicates that a possible remedy for the alleged discrimination would be the elimination of funding for the Roman Catholic separate schools. So far, the State party's reply to the author's communication has focussed on his claim that the failure to extend funding constituted a violation of the Covenant, not on a claim that the failure to eliminate funding from the Roman Catholic separate school system is violative of the Covenant. The State party notes that in another communication (No. 816/1998, Tadman et al. v. Canada) presented to the Committee under the Optional Protocol this question has been addressed and therefore it requests the Committee to consider jointly the two communications.

8.3 In case the Committee does not join the consideration of the two communications, the State party provides further arguments concerning this matter. In this context, the State party explains that without the protection of the rights of the Roman Catholic minority, the founding of Canada would not have been possible and that the separate school system remained a controversial issue, at times endangering the national unity in Canada. The State party explains that the funding is seen by the Roman Catholic community as correction of a historical wrong.

8.4 The State party submits that there are reasonable and objective grounds for not eliminating funding to Roman Catholic separate schools in Ontario. The elimination would be perceived as undoing the bargain made at Confederation to protect the interests of a vulnerable minority in the province and would be met with outrage and resistance by the Roman Catholic community. It would also result in a certain degree of economic turmoil, including claims for compensation of facilities or lands provided for Roman Catholic schools. Further, the protection of minority rights, including minority religion and education rights, is a principle underlying the Canadian constitutional order and militates against elimination of funding for the Roman Catholic separate schools. Elimination of funding for separate schools in Ontario would further lead to pressure on other Canadian provinces to eliminate their protections for minorities within their border.

Issues and proceedings before the Committee

9.1 Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not it is

admissible under the Optional Protocol to the Covenant.

9.2 The Committee notes that the State party has challenged the admissibility of the communication ratione materiae. The Committee, however, considers that the author's claim of discrimination, in itself and in conjunction with articles 18 and 27, is not incompatible with the provisions of the Covenant. The State party has not raised any other objections and accordingly the Committee finds the communication admissible. The Committee does not consider that there would be any difficulty or disadvantage to the parties in proceeding to consider this case on its

own without joinder as requested by the State party.

10.2 The issue before the Committee is whether public funding for Roman Catholic schools, but not for schools of the author's religion, which results in him having to meet the full cost of education in a religious school, constitutes a violation of the author's rights under the Covenant.

10.3 The State party has argued that no discrimination has occurred, since the distinction is based on objective and reasonable criteria: the privileged treatment of Roman Catholic schools is enshrined in the Constitution; as Roman Catholic schools are incorporated as a distinct part of the public school system, the differentiation is between private and public schools, not between private Roman Catholic schools and private schools of other denominations; and the aims of the public secular education system are compatible with the Covenant.

10.4 The Committee begins by noting that the fact that a distinction is enshrined in the Constitution does not render it reasonable and objective. In the instant case, the distinction was made in 1867 to protect the Roman Catholics in Ontario. The material before the Committee does not show that members of the Roman Catholic community or any identifiable section of that community are now in a disadvantaged position compared to those members of the Jewish community that wish to secure the education of their children in religious schools. Accordingly, the Committee rejects the State party's argument that the preferential treatment of Roman

Catholic schools is non‑discriminatory because of its Constitutional obligation.

10.5 With regard to the State party's argument that it is reasonable to differentiate in the allocation of public funds between private and public schools, the Committee notes that it is not possible for members of religious denominations other than Roman Catholic to have their religious schools incorporated within the public school system. In the instant case, the author has sent his children to a private religious school, not because he wishes a private non‑Government dependent education for his children, but because the publicly funded school system makes no provision for his religious denomination, whereas publicly funded religious schools are available to members of the Roman Catholic faith. On the basis of the facts before it, the Committee considers that the differences in treatment between Roman Catholic religious schools, which are publicly funded as a distinct part of the public education system, and schools of the author's religion, which are private by necessity, cannot be considered reasonable and objective.

10.6 The Committee has noted the State party's argument that the aims of the State party's secular public education system are compatible with the principle of non‑discrimination laid down in the Covenant. The Committee does not take issue with this argument but notes, however, that the proclaimed aims of the system do not justify the exclusive funding of Roman Catholic religious schools. It has also noted the author's submission that the public school system in Ontario would have greater resources if the Government would cease funding any religious schools. In this context, the Committee observes that the Covenant does not oblige States parties to fund schools which are established on a religious basis. However, if a State party chooses to provide public funding to religious schools, it should make this funding available without discrimination. This means that providing funding for the schools of one

religious group and not for another must be based on reasonable and objective criteria. In the instant case, the Committee concludes that the material before it does not show that the differential treatment between the Roman Catholic faith and the author's religious denomination is based on such criteria. Consequently, there has been a violation of the author's rights under article 26 of the Covenant to equal and effective protection against discrimination.

10.7 The Committee has noted the author's arguments that the same facts also constitute a violation of articles 18 and 27, read in conjunction with article 2(1) of the Covenant. The Committee is of the opinion that in view of its conclusions in regard to article 26, no additional issue arises for its consideration under articles 18, 27 and 2(1) of the Covenant.

12. Under article 2, paragraph 3(a), of the Covenant, the State party is under the obligation to provide an effective remedy, that will eliminate this discrimination.

13. Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within ninety days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

I. Communication No. 701/1996, Gomez v. Spain

(Views adopted on 20 July 2000, sixty‑ninth session)*

Submitted by:	Cesario Gómez Vázquez (Represented by José Luis Mazón Costa)
Alleged victim:	Author
State party:	Spain
Date of communication:	29 May 1995
Date of admissibility decision:	23 October 1998

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 20 July 2000,

Having concluded its consideration of communication No. 701/1996 submitted to the Human Rights Committee by Mr. Cesario Gómez Vázquez under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The author of the communication is Cesario Gómez Vázquez, a Spanish citizen born in 1966 in Murcia, formerly employed as a physical education teacher. He is currently living in hiding somewhere in Spain. He claims to be the victim of violations by Spain of articles 14, paragraph 5, and 26 of the International Covenant on Civil and Political Rights. The author is represented by counsel, Mr. José Luis Mazón Costa.

* The following members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. P.N. Bhagwati, Ms. Christine Chanet, Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar Gaitan de Pombo, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Martin Scheinin, Mr. Roman Wieruszewski, Mr. Maxwell Yalden, Mr. Hipólito Solari Yrigoyen and Mr. Abdallah Zakhia.

Facts as submitted by the author

2.1 On 22 February 1992, the author was sentenced to 12 years and one day by the Provincial Court (Audiencia Provincial) of Toledo for the attempted murder (asesinato en grado de frustración) of one Antonio Rodríguez Cottin. The Supreme Court (Tribunal Supremo) rejected his appeal on 9 November 1993.

2.2 At around 4 a.m. on 10 January 1988, Antonio Rodríguez Cottin was stabbed five times in a car lot outside a discotheque in Mocejón, Toledo. The wounds required 336 days' hospitalization and a total of 635 days for complete recovery.

2.3 The case for the prosecution was that the author, who had been working as doorman at the discotheque, saw the victim drive into the car lot and went out to talk to him, asking him to get out of the car. While they argued, an unidentified car came up to them, a person got out asking for a light and, when Mr. Rodríguez turned around, the author allegedly stabbed him in the back and neck.

2.4 The author has consistently denied this description of the events and maintains that, on 10 January 1988, he left the discotheque between 2 and 2.30 a.m., going home to Mostoles, Madrid, as he was feeling ill. He was taken home by Benjamin Sanz Carranza, Manuela Vidal Ramírez and another woman. When he arrived at his home at 3.15 a.m., he asked his flatmate for an aspirin and remained in bed all the following day. The author knew the victim, who was a frequent visitor to the discotheque, and considered him to be a violent person. The author states that, on 5 December 1987, Mr. Rodríguez had had an argument with Julio Pérez, the owner of the discotheque, and drawn a knife on him. During the trial, the author claimed that the assault on Mr. Rodríguez on 10 January 1988 was a settling of accounts between the victim and someone in the underworld of which he is a part.

2.5 During the trial, both the author and the prosecutor called witnesses to corroborate their respective versions.

2.6 Counsel states that the author did not file an appeal (recurso de amparo) because, as the right to an appeal is not covered by articles 14‑38 and, in particular, article 24, paragraph 2, of the Spanish Constitution, the appeal would simply have been rejected. He later submitted an additional allegation to the effect that the Constitutional Court's repeated rejection of amparo applications made them an ineffective remedy. Consequently, he considers the requirement of exhaustion of domestic remedies to have been duly met.

The complaint

3.1 The author's complaint concerns primarily the right to an effective appeal against conviction and sentence. He argues that the Spanish Criminal Procedure Act (Ley de Enjuiciamiento Criminal) violates articles 14, paragraph 5, and 26 of the Covenant because those charged with the most serious crimes have their cases heard by a single judge (Juzgado de Instrucción), who conducts all the pertinent investigations and, once he considers the case ready for the hearing, refers it to the Provincial Court (Audiencia Provincial), where a panel of three judges is in charge of proceedings and hands down the sentence. Their decision is subject to judicial review proceedings only on very limited legal grounds. There is no possibility of a re‑evaluation of the evidence by the Court of Cassation, as all factual determinations by the lower court are final. By contrast, those convicted of less serious crimes for which sentences of less than six years' imprisonment have been imposed have their cases investigated by a single judge (Juzgado de Instrucción) who, when the case is ready for the hearing, refers it to a single judge ad quo (Juzgado de lo Penal), whose decision may be appealed before the Provincial Court (Audiencia Provincial), thus ensuring an effective review not only of the application of the law, but also of the facts.

3.2 Counsel claims that, as the Supreme Court does not re‑evaluate evidence, the above constitutes a violation of the right to have one's conviction and sentence reviewed by a higher court according to law. In this context, the author's lawyer cites the decision of 9 November 1993 rejecting the application for judicial review filed on behalf of Mr. Cesario Gómez Vázquez, the first ground of which states:

"… since it must also be pointed out that such evidence has to be evaluated exclusively by the court ad quo in accordance with the provisions of article 741 of the Criminal Procedure Act.

"… The appellant therefore recognizes that there is a great deal of evidence for the prosecution and his arguments consist only in interpreting this evidence according to his own way of thinking ‑ and this approach is inadmissible when the principle of the presumption of innocence is invoked because, if it were allowed, it would change the nature of the judicial review and turn it into an appeal …".

The second ground states:

"[in this case] … of the principle in 'dubio pro reo', the result is also rejection because the complainant forgets that this principle cannot be the subject of a review for the obvious reason that that would mean re‑evaluating the evidence and such an evaluation is, as we have stated and repeated, not admissible."

3.3 Counsel further claims that the existence of different recourse procedures, depending on the gravity of the offence, implies a discriminatory treatment of persons convicted of serious offences, constituting a violation of article 26 of the Covenant.

3.4 The author states that the communication has not been submitted to another procedure of international investigation or settlement.

State party's observations and comments on admissibility and author's comments

4.1 In its submission under rule 91 of the Committee's rules of procedure, the State party requested the Committee to declare the communication inadmissible for failure to meet the requirement contained in article 5, paragraph 2, of the Optional Protocol, namely, exhaustion of domestic remedies, as the author had not lodged an appeal with the Constitutional Court, and

referred in this connection to the position of the European Commission of Human Rights, which has systematically denied admissibility in cases involving Spain when an amparo application has not been filed. The State party claimed that the author's defence was inconsistent, as counsel had stated in a first submission that he had not filed an application for amparo because the right to an appeal is not protected by the Spanish Constitution and had subsequently corrected that allegation in a second submission in which he had stated that his failure to file an application for amparo had been due to the Constitutional Court's repeated rejection of such appeals. The State party also maintained that the communication was inadmissible for failure to exhaust domestic remedies, since this question had never been brought before the Spanish courts.

4.2 The State party further claimed that the case was inadmissible because the author had abused his right to submit a communication, as his whereabouts were unknown and he had placed himself beyond the reach of the law. Lastly, the State party expressed doubts regarding counsel's right to represent the author, as counsel did not have sufficient authority and had not sought the permission of the previous defence counsel.

5.1 Counsel admitted that he had claimed in his initial submission that no effective remedy was available before the Constitutional Court. When he realized his error, he had made an additional submission, however, claiming that the said remedy was ineffective because the Constitutional Court had repeatedly rejected it (Constitutional Court judgement attached), and he referred to the Committee's case law on this point.

5.2 Counsel admitted that the author's whereabouts were unknown, but claimed that this had not been an obstacle in other cases which the Committee had accepted. With regard to the doubts about his right to represent the author, counsel regretted that the State party did not clearly explain the real reasons, if any, for such doubts.

Decision of the Committee on admissibility

6.1 At its sixty‑first session, of October 1997, the Committee considered the admissibility of the communication. It ascertained, as required under article 5, paragraph 2 (a), of the Optional Protocol, that the same matter had not been examined under another procedure of international investigation or settlement.

6.2 The Committee noted that the State party had challenged the communication on the ground of failure to exhaust domestic remedies. The Committee referred to its case law, in which it had repeatedly found that, for the purposes of article 5, paragraph 2 (b), of the Optional Protocol, domestic remedies must be both effective and available. With regard to the State party's argument that the author should have filed an appeal for amparo before the Constitutional Court, the Committee noted that the Constitutional Court had repeatedly rejected similar applications for amparo. The Committee considered that, in the circumstances of the case, a remedy which had no chance of being successful could not count as such and did not need to be exhausted for the purposes of the Optional Protocol. The Committee accordingly finds that article 5, paragraph 2 (a), of the Optional Protocol is not an obstacle to consideration of the complaint, which might raise issues under article 14, paragraph 5, and article 26 of the Covenant.

Comments of the State party on the merits and author's response

7.1 In its submission dated 31 May 1999, the State party reiterates its view with regard to the inadmissibility of the complaint because the issues which are now being brought before the Committee were not raised at the domestic level. It also believes that the domestic appeals in respect of the allegations of violation of article 14, paragraph 5, and article 26, of the Covenant were not lodged on time and in the correct form, resulting in their dismissal.

7.2 Counsel for the State maintains that the allegations made to the Committee are abstract and aim to amend the law in general; they do not relate specifically to Mr. Gómez Vásquez, and therefore he does not have the status of a victim. Consequently, since there is no victim in the sense of article 1 of the Optional Protocol, the State party considers that the case should be declared inadmissible.

7.3 Counsel for the State also maintains that, since Mr. Gómez Vásquez has placed himself beyond the reach of the law and is a fugitive from justice, the case should be dismissed, since the "clean hands" principle has been violated. Counsel for the State considers that, since the complaint was not brought before the national judicial bodies, the author does not have the capacity to be the victim of a violation of a human right, particularly since not only was no violation invoked at the domestic level, but also the facts established by the judiciary were explicitly accepted.

7.4 Counsel for the State affirms that it was only after the appointment of a new lawyer that the author requested a review of all the judicial proceedings. He also contends that the appointment of the lawyer to appear at the international level was defective in terms of form. According to counsel for the State, when appointing a lawyer at the domestic level, the author made the appointment through a public document, while at the international level he did so by means of a mere paper.

7.5 As to the allegation of violation of article 26, the State party maintains its view already expressed at the stage of admissibility that two separate types of crimes are being compared, on the one hand the most serious crimes and, on the other hand, less serious crimes. In this respect the State party believes that a differentiation in the treatment of the two different types of crimes cannot possibly constitute discrimination.

7.6 As to the question of violation of article 14, paragraph 5, in the author's case, the State party explains that not only did the author's lawyer not raise the question of the lack of a full appeal or of a complete review of the proceedings when applying for a review, but he also explicitly recognized in his submission to the Supreme Court that: "In claiming a constitutional presumption of innocence, we do not aim to subvert or distort the purposes of an appeal, and convert it into a second judicial instance". Moreover, not only did the author not file an appeal for amparo with the Constitutional Court after the rejection of the appeal on 9 December 1993, but also, and instead, on 30 December he applied to the Ministry of Justice for a pardon, and as a first plea affirmed: "The conduct of the undersigned has always been irreproachable, with the exception of the crime committed, which was an isolated incident in his life and for which he has given ample demonstrations of remorse". Also, in a submission to the court of Toledo, of 14 January 1994, the author affirms: "The crime for which he is being sentenced is an isolated incident in his life, and at all times he has shown a fervent and sincere desire to be reintegrated into society". The State party therefore considers that it cannot be argued that there was a violation of the Covenant, since the author has accepted the facts as established by the Spanish courts.

8.1 The author's lawyer, in his response to the State party's allegations dated 8 November 1998, rejects the State party's contentions that the communication is abstract and the author does not have the status of a victim, since the author was sentenced on the basis of contradictory evidence and did not have an opportunity to request a review, or a re‑evaluation of the evidence in a higher court, which took up only the legal aspects of the sentence.

8.2 The author's lawyer rejects the State party's claim that he is not authorized to represent the author since he sought the permission of the previous representative of Mr. Gómez Vázquez before beginning to act in his defence at the international level; he also contends that neither the Covenant, nor its Optional Protocol, nor the Committee's case law requires that representation by counsel should be effected by means of a document granted by a public authenticating officer, so that he believes that the State party's allegation is completely groundless.

8.3 As to the allegation by counsel for the State that article 26 has not been at issue because there are two different categories of crimes and therefore they do not have to be treated in the same way under the law, the author's counsel reiterates that the claim is not based on differential treatment of two different types of crimes, but on the fact that in the Spanish legal system, persons convicted of the most serious crimes do not have the possibility of a complete review of their convictions and sentences, in violation of article 14, paragraph 5, of the Covenant.

8.4 With regard to the alleged renunciation of his rights under article 14, paragraph 5, by drafting the appeal document subject to the limitations laid down under the Criminal Procedure Act, counsel explains that in the Spanish system of judicial appeals, acceptance of the legal limits of appeals made before a court is a condition sine qua non for the appeal to be accepted for processing and subsequently considered. This cannot possibly be interpreted as a renunciation of the right to a sentence being reviewed in its entirety. The author's counsel maintains that the author's lawyer in the domestic court applied only for the partial review allowed under Spanish law, and it is precisely for this reason that there is a violation of article 14, paragraph 5; in this respect, he cites the Committee's case law.

8.5 Counsel explains that the Committee is not being asked to evaluate the facts and evidence established in the case, a matter which in any case is beyond its jurisdiction, as the State affirms, but merely to ascertain whether the review of the sentence which convicted the author met the requirements of article 14, paragraph 5 of the Covenant. Counsel maintains that the case law submitted by the State party, 29 verdicts of the Supreme Court, have no connection with the denial of the author's right of appeal. Moreover, a careful examination of the texts of the verdicts shows that they lead to conclusions which are the opposite of those claimed by the State, since most of them recognize that criminal appeals are subject to severe limitations as to the possibility of reviewing the evidence brought before the court of the first instance. The criminal section of the Supreme Court did not review the evaluation of the evidence carried out by the court of the first instance in any of these cases unless there was some violation of the law or

there was a gap in the evidence which would support a violation of the right to presumption of innocence or if the factual observations made in the sentence were in contradiction with documents which demonstrated the error.

8.6 The State party alleges that article 14, paragraph 5, of the Covenant does not require that a remedy of review should be specifically termed a remedy of appeal and that the Spanish criminal appeal fully satisfies the requirements in the second instance although it does not allow review of the evidence except in extreme cases which are specified in the law. In view of the foregoing, counsel believes that the criminal proceedings against his client and specifically the sentence convicting him were vitiated by the lack of a full review of the legal and factual aspects, so that the author was denied the right guaranteed under article 26 of the Covenant.

Consideration on the merits

9. The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, in accordance with the provisions of article 5, paragraph 1, of the Optional Protocol.

Review of admissibility

10.1 With respect to the State party's claim of inadmissibility on the ground of failure to exhaust domestic remedies, the Committee has consistently taken the view that a remedy does not have to be exhausted if it has no chance of being successful. In the case under consideration, the case law of the Spanish Constitutional Court shows repeated and recent rejections of applications for amparo against conviction and sentence. The Committee therefore considers, as it did upon determining the admissibility of this case on 23 October 1998, that there is no obstacle to its consideration of the merits.

10.2 With respect to the State party's claim that the author is not a victim because his counsel's objective is to amend Spanish legislation, and that the case is therefore inadmissible, the Committee points out that the author was convicted by a Spanish court and that the issue before the Committee is not the amendment, in the abstract, of Spanish legislation, but whether or not the appeals procedure followed in the author's case provided the guarantees required under the Covenant. The Committee therefore considers that the author can be considered a victim in accordance with the requirements of article 1 of the Optional Protocol.

10.3 With respect to the State party's allegation that the communication should be declared inadmissible because the author abused his right to lodge a complaint, since he did not serve his sentence and is currently a fugitive from justice, in violation of Spanish law, the Committee reiterates its position that an author does not lose his or her right to lodge a complaint under the Optional Protocol simply because he or she has not complied fully with an order imposed by a judicial authority of the State party against which the complaint was lodged.

10.4 Lastly, with respect to the final ground of inadmissibility claimed by the State party, to the effect that the author's counsel does not have the right to represent him before the Human Rights Committee, the Committee takes note of the State party's claim, but reiterates that there are no specific requirements for representation before it and that the State party does not question whether or not Mr. Gómez Vázquez's counsel represents him, but only whether certain formalities that are not required by the Covenant have been fulfilled. The Committee therefore considers that the author's counsel is acting in accordance with the instructions of the principal and, therefore, legitimately represents him.

Substantive issues

11.1 As to whether the author has been the victim of a violation of article 14, paragraph 5, of the Covenant because his conviction and sentence were reviewed only by the Supreme Court on the basis of a procedure which his counsel, following the criteria laid down in article 876 et seq, of the Criminal Procedure Act, characterizes as an incomplete judicial review, the Committee takes note of the State party's claim that the Covenant does not require a judicial review to be called an appeal. The Committee nevertheless points out that, regardless of the name of the remedy in question, it must meet the requirements for which the Covenant provides. The information and documents submitted by the State party do not refute the author's complaint that his conviction and sentence were not fully reviewed. The Committee concludes that the lack of any possibility of fully reviewing the author's conviction and sentence, as shown by the decision referred to in paragraph 3.2, the review having been limited to the formal or legal aspects of the conviction, means that the guarantees provided for in article 14, paragraph 5, of the Covenant have not been met. The author was therefore denied the right to a review of his conviction and sentence, contrary to article 14, paragraph 5, of the Covenant.

11.2 With regard to the allegation that article 26 of the Covenant was violated because the Spanish system provides for various types of remedy depending on the seriousness of the offence, the Committee considers that different treatment for different offences does not necessarily constitute discrimination. The Committee is of the opinion that the author has not substantiated the allegation of a violation of article 26 of the Covenant.

12. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 14, paragraph 5, in respect of Mr. Cesario Gómez Vázquez.

13. Under article 2, paragraph 3 (a), of the Covenant, the author is entitled to an effective remedy. The author's conviction must be set aside unless it is subjected to review in accordance with article 14, paragraph 5, of the Covenant. The State party is under an obligation to take the necessary measures to ensure that similar violations do not occur in future.

14. Considering that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's Views.

[Adopted in English, French and Spanish, the Spanish being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

J. Communication No. 711/1996, Dias v. Angola

(Views adopted on 20 March 2000, sixty‑eighth session)*

Submitted by:	Carlos Dias

Alleged victims:	The author and Carolina de Fatima da Silva Francisco

State party:	Angola

Date of communication:	28 March 1996 (initial submission)

Date of admissibility decision:	20 March 1998

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 20 March 2000,

Having concluded its consideration of communication No. 711/1996 submitted to the Human Rights Committee by Mr. Carlos Dias under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication, and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The author of the communication is Mr. Carlos Dias, a Portuguese national. He submits the communication on his own behalf and of that of Carolina de Fátima da Silva Francisco, an Angolan national, killed on 28 February 1991. He does not invoke any articles of the Covenant. The Covenant and the Optional Protocol thereto entered into force for Angola on 9 February 1992.

* The following members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal Bhagwati, Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar Gaitan de Pombo, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski and Mr. Maxwell Yalden.

Facts as submitted by the author

2.1 The author has a business in Angola, with a head office in Luanda. In February 1991, he was away on business and his business partner and companion Carolina da Silva stayed at the premises in Luanda. She was killed in the night of 28 February 1991. The author arrived back from his trip the following morning. The guard on duty was found severely wounded and later died of his injuries. The safe was found open and a large sum of money removed.

2.2 The author states that the murder was never seriously investigated by the Angolan police, despite several urgent requests made by him. The author then decided to start his own investigations and, in the beginning of 1993, published a series of advertisements in newspapers in Angola and in other countries, despite the fact that the Angolan authorities refused to give permission for these publications and actually threatened him if he would do so. Following the advertisements, the author came in contact with an eye witness to the crime.

2.3 This eye witness, an Angolan national born on 16 June 1972, in a statement made on 23 November 1993 in Rio de Janeiro, stated that at the time she was the girlfriend of one Victor Lima, adviser to the President of Angola in charge of international affairs. In the evening of 27 February 1991, Mr. Lima came to pick her up to go for a drive in his car. Later that night they picked up four friends of his. According to the witness the five men started to complain about Angolans who worked for white men, and said that they would eliminate 'this black girl who is working with the whites'. After a while they stopped at a house, and a black woman, whom the witness did not know, but who apparently knew Mr. Lima and his friends, opened the door. They went inside, took drinks, and then the men said that they wanted to speak to the woman alone, upon which they retired to a side room. The witness remained behind. After a while she heard loud voices, and then the woman started to scream. The witness became afraid and wanted to flee, but was prevented from leaving by the security guard. She then took up a position in the room from where she could see what was happening, and saw the woman being raped by the men. Mr. Lima, the last one to rape her, then took her neck and twisted it. Upon leaving the premises, the witness was threatened by the men and told never to reveal what she had seen. Soon thereafter the witness left Angola out of fear.

2.4 The witness' sister was married to an inspector for secret services of the Angolan Ministry of the Interior. In a statement, made on 15 September 1993 in Rio de Janeiro, he confirms that Carolina da Silva was being kept under surveillance by the secret police, officially for being suspected of furnishing political‑military information to the South African Government, through her contacts with whites, but according to the statement, in reality because she had rejected the amorous proposals of the Chief of the Security Services of the Cabinet of the President and National Director of the Secret Service, Mr. Jose Maria.

2.5 The author states that the eye witness' brother‑in‑law, the inspector who gave the statement referred to above, disappeared on 21 February 1994, while in Rio de Janeiro.

2.6 The author informed the President of Angola about his discoveries in a letter sent by his lawyer, pointing out that the perpetrators of the crime belonged to his inner circle. On 8 March 1994, a meeting was held with the Angolan consul in Rio de Janeiro, who informed the author that the Government might send a mission to Rio de Janeiro. However, nothing happened. On 19 April 1994, the judicial adviser of the President, in a letter to the author's lawyer, stated that he was aware of the urgency of solving the case, and on 26 June 1994, a meeting took place in Lisbon between the judicial adviser and the Secretary of the Council of Ministers on the one side and the author and his lawyer on the other. However, no further progress seems to have been achieved, and on 8 September 1994 an official communique was issued by the Angolan Minister of the Interior, stating that the police contested declarations on the death of Carolina da Silva and accusing the author of trying to bribe the Government.

2.7 Since then, the author has continued to try in vain to have the perpetrators of the murder brought to justice. In March 1995, he began a civil action against Angola in the civil court of Lisbon, to recover unsettled debts. In July 1995, he applied to the Criminal Court in Lisbon against the perpetrators of the murder, apparently under article 6 of the Convention against Torture.

2.8 According to the author, the murder of his companion was planned by the Head of the Military House of the President, the vice‑Minister of the Interior, the Minister of State Security and the Minister of Foreign Affairs. In this connection, he states that Carolina da Silva had been arrested on 6 October 1990 and kept in detention for 36 hours, because she had refused to open the safe of the enterprise owned by the author.

2.9 The author states that since the murder, he has not been able to live and do his business in Angola, because of threats. He has left Angola, leaving his properties (real estate, furniture, vehicles) behind. He has not been able to bring a case in the Angolan courts, since no lawyer wants to take the case, as it involves Governmental officials. In this context, he states that the lawyer who was representing Carolina's mother, withdrew from the case on 15 March 1994.

The complaint

3. The author claims that Angola has violated the Covenant, since it failed to investigate the crimes committed, keeps those responsible for the crimes in high positions, and harasses the author and the witnesses so that they can't return to Angola, with as a consequence for the author that he has lost his property. The author argues that, although the murder occurred before the entry into force for Angola of the Covenant and the Optional Protocol thereto, the above mentioned violations continue to affect the author and the witnesses.

The Committee's admissibility decision

4. By decision of 6 August 1996, the Special Rapporteur on New Communications of the Human Rights Committee transmitted the communication to the State party, requesting it, under rule 91 of the rules of procedure, to submit information and observations in respect of the admissibility of the communication. The State party did not forward such information, despite of several reminders addressed to it, the latest on 17 September 1997.

5.1 At its 62nd session, the Committee considered the admissibility of the communication. It ascertained, as required under article 5, paragraph 2(a), of the Optional Protocol, that the same matter was not being examined under another procedure of international investigation or settlement.

5.2 The Committee noted that it was precluded from considering the claim submitted on behalf of Ms. Carolina Da Silva, ratione temporis. In the absence of observations from the State party, the Committee was not aware of any other obstacles to the admissibility of the communication and considered that the communication submitted on behalf of Mr. Dias might raise issues under the Covenant which should be examined on their merits.

6. Accordingly, on 20 March 1998, the Human Rights Committee decided that the communication was admissible.

Issues and proceedings before the Committee

7. The Committee's decision declaring the communication admissible was transmitted to the State party on 1 May 1998, with the request that explanations or statements clarifying the matter under consideration should reach the Committee at the latest by 1 November 1998. No clarifications were received despite several reminders sent to the State party, the last one on 24 June 1999. The Committee recalls that it is implicit in the Optional Protocol that the State party make available to the Committee all information at its disposal and regrets the lack of cooperation of the State party. In the absence of any reply from the State party, due weight must be given to the author's allegations to the extent that they have been substantiated.

8.1 The Committee has considered the present communication in the light of all the written information before it, in accordance with article 5 (1) of the Optional Protocol.

8.2 The author has provided information to the effect that he has been harassed and threatened by the State party's authorities, when, in the absence of a serious investigation by the police, he started investigating the murder of his companion and found evidence that high ranking Government officials had been involved in the murder. The author's allegations in this respect have never been contradicted by the State party. The Committee notes that it has also not been disputed that one of the witnesses, who gave a statement to the author about the murder of his companion, disappeared shortly afterwards.

8.3 The Committee recalls its jurisprudence that article 9(1) of the Covenant protects the right to security of person also outside the context of formal deprivation of liberty. An interpretation of article 9 which would allow a State party to ignore threats to the personal security of non‑detained persons subject to its jurisdiction would render totally ineffective the guarantees of the Covenant. In the present case, the author has claimed that the authorities themselves have been the source of the threats. As a consequence of the threats against him, the author has been unable to enter Angola, and he has therefore been prevented from exercising his rights. If the State party neither denies the threats nor cooperates with the Committee to explain the matter, the Committee must give due weight to the author's allegations in this respect. Accordingly, the Committee concludes that the facts before it disclose a violation of the author's right of security of person under article 9, paragraph 1, of the Covenant.

9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose violations of article 9, paragraph 1, of the Covenant.

10. Under article 2, paragraph 3(a), of the Covenant, the State party is under the obligation to provide Mr. Dias with an effective remedy and to take adequate measures to protect his personal security from threats of any kind. The State party is under an obligation to take measures to prevent similar violations in the future.

11. Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within ninety days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

K. Communication No. 731/1996, Michael Robinson v. Jamaica

(Views adopted on 29 March 2000, sixty‑eighth session)*

Submitted by:	Michael Robinson (represented by Mr. Graham Huntley of the London law firm of Lovell White Durrant)
Alleged victim:	The author
State party:	Jamaica
Date of communication:	9 December 1996 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 29 March 2000,

Having concluded its consideration of communication No. 731/1996 submitted to the Human Rights Committee by Mr. Michael Robinson under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication, and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The author of the communication is Michael Robinson, a citizen of Jamaica, at the time of submission detained on death row in St Catherine's District Prison. His death sentence has since been commuted to life imprisonment. He claims to be a victim of violations by Jamaica of articles 7, 10, and 14, paragraphs 1, 2, 3(b), 3(d), 3(e) and 5, of the International Covenant on Civil and Political Rights. He is represented by Mr. Graham Huntley of the London law firm of Lovell White Durrant.

* The following members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar Gaitan de Pombo, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski, Mr. Maxwell Yalden and Mr. Abdallah Zakhia. An individual opinion by Member Louis Henkin is attached to the present document.

The facts as submitted by the author

2.1 The author was convicted for the murder of Chi Pang Chan and sentenced to death in the Home Circuit Court, Kingston, Jamaica on 21 November 1991. His application for leave to appeal against his conviction and sentence to the Court of Appeal in Jamaica was dismissed on 16 May 1994. In its judgment, the Court of Appeal classified his offence as capital murder under section 2(1)(d)(1) of the Offences Against the Person Act of 1992, on the ground that it was a murder committed in the course of a robbery. Thus, the Court of Appeal affirmed the sentence of death. The author's subsequent petition for special leave to appeal to the Judicial Committee of the Privy Council was dismissed on 19 November 1996. On the same day, the Court of Appeal reviewed and reconfirmed the classification of the author's conviction as capital murder. Also on the same day, the author's counsel wrote to the Governor General of Jamaica and requested a commutation of the death sentence, submitting that since the author had spent five years on death row, he had been subject to inhuman and degrading treatment contrary to his rights under section 20 of the Jamaican Constitution. On 5 December 1996, the author was informed that the Governor General would not commute his death sentence. Instead, on the same day, a warrant was issued for the execution to be carried out on 19 December 1996. However, the author's death sentence was subsequently commuted to life imprisonment. A warrant to this effect was read to the author on 4 July 1997.

2.2 Chi Pang Chan was stabbed to death during the course of a robbery on the afternoon of Wednesday 27 June 1990 at Sheila Place, Queensborough, in Kingston, Jamaica. The prosecution's case against the author was based on circumstantial and confession evidence.

2.3 The author's aunt, Ruby Campbell, resided in Diana Place, an avenue some four blocks away from Sheila Place, where Mr. Chan was killed. She testified that Mr. Chan, whom she had known and done business with for several years, came to her house on most Wednesday afternoons in connection with her travelling to Miami on business. On these occasions, he would often give her US dollars, either cash in the hand to make purchases in Miami, or in an envelope to give to his uncle there. To questions as to whether Mr. Chan was expected on the Wednesday of the crime, she explained that he came most Wednesdays, but that he was not specifically expected this Wednesday. She further testified that Mr. Robinson had lived in her house for a period of five years until the year before the incident, and that he was well aware of the custom of Mr. Chan stopping by her house on Wednesday afternoons.

2.4 An eye witness to the crime, Victoria Lee, testified that she saw the deceased and a black man struggling together outside her house in Sheila Place, that the black man appeared to be trying to take an envelope from the other man, and that he stabbed him before fleeing into a gully.

2.5 Detective Acting Corporal McPherson testified that on 28 June 1990, the day after Mr. Chan had been killed, he went to the author's home twice, once alone and once along with Senior Superintendent Hibbert, and found a shirt, a pair of jeans and footwear which appeared to be bloodstained. Underneath the wardrobe in the author's bedroom, they found a plastic bag containing US dollars and Pounds Sterling. One of the US dollar bills appeared to be bloodstained. McPherson testified that the author, when confronted by Senior Superintendent Hibbert with these items, admitted that the clothes and the shoes were his, but that he had no knowledge of the bills. The same testimony was given by Senior Superintendent Hibbert. A Government analyst at the Forensic Laboratory, Ms. Yvonne Cruickshank, testified that on examination, the items were found to be stained with blood of Group B, the same as that of Mr. Chan and about 18 per cent of the Jamaican population.

2.6 The author's sister, Ms. Charmaine Jones, who at the time of the crime was living in the same house as the author, testified that she saw the author on the morning of 27 June 1990 wearing the same clothes that were later seized by the police, and that they were not bloodstained at the time. Furthermore, she testified that the author usually carried a ratchet knife on a key ring, and that he had done so on the morning of 27 June 1990. When the author was taken to Waterford Police Station on 28 June 1990, the ratchet knife was missing from the key ring. Detective Acting Corporal McPherson testified that the author had explained that he usually kept a ratchet knife on his key ring, but that it had been broken three days earlier while he was digging out a coconut.

2.7 Senior Superintendent Hibbert and Sergeant Forrest testified that the author on 29 June 1990, at Bridgeport Police Station, in their and Assistant Superintendent Lawrence's presence, after being duly cautioned, confessed to stabbing Mr. Chan and taking his money. The detailed confession was taken down by Sergeant Forrest in a written statement, and signed by the author. The statement was admitted as evidence and was read to the jury.

2.8 The author gave evidence on oath that he did not know the deceased, nor had he ever met him at his aunt's house. He stated that he had only lived with his aunt for 6 months. On 27 June 1990, he was at Caymanas Park Race Course from noon until 5:30 p.m. He denied owning any of the items produced by the prosecution (clothes, shoes, bank notes) and stated that he had never had a ratchet knife on his key ring. He denied making any of the confessions, oral or written, and denied signing the statement purportedly made by him. He said that on first arriving at Waterford Police Station he was put in a cage and told "it better you stay in there more than get a gun shot". He stated that he was violently assaulted by police officers on 29 June 1990 at the time when Officer Hibbert claimed he made and signed the written confessions.

2.9 Counsel argues that all available domestic remedies have been exhausted for the purposes of article 5, paragraph 2(b), of the Optional Protocol. While a constitutional motion might be open to the author in theory, it is not available in practise due to the State party's unwillingness or inability to provide legal aid for such motions and to the extreme difficulty of finding a Jamaican lawyer who would represent an applicant pro bono on a constitutional motion.

The complaint

3.1 Counsel alleges a violation of articles 7 and 10 on the ground that the author has been on death row for a period of over five years. It is submitted that the "agony of suspense resulting from such long awaited and expected death" amounts to cruel, inhuman and degrading treatment. Reference is made to the jurisprudence of the Privy Council.

3.2 Counsel also alleges a violation of articles 7 and 10 on the ground of the conditions of his incarceration at St. Catherine's District Prison. As to the general conditions, reference is made to reports by Americas Watch, Amnesty International and the Jamaican Council for Human Rights. The reports highlight that the prison is holding more than twice the capacity for which it was constructed in the 19th century, that there are no mattresses, other bedding or furniture in the cells, that there is a desperate shortage of soap, toothpaste and toilet paper, that the quality of food and drink is very poor, that there is no integral sanitation in the cells and there are open sewers and piles of refuse, that there is no artificial lighting in the cells and only small air vents through which natural light can enter, that there are almost no employment or recreational opportunities available to inmates, and that there is no doctor attached to the prison, leaving warders with very limited training to treat medical problems. In addition to the NGO reports, counsel makes reference to reports from prisoners, stating that the prison is infested by vermin, in particular rats, cockroaches, mosquitoes and, in rainy periods, maggots. Furthermore, the prisoners have stated that food is being prepared in the kitchen and the bakery despite these having been condemned for many years, that the prison often runs out of medication, that insufficient clothing is given to inmates, that there is no procedure for handling the complaints of inmates and that the organisation of the prison at times breaks down, with the result that the inmates are locked up in their cells for long periods of time, without access to washing facilities and having to ask for food and water to be brought to them. These alleged reports from prisoners are not enclosed.

3.3 Counsel submits that the particular impact of these general conditions upon the author is that he is confined to his cell for 22 hours every day in enforced darkness, isolated from other men and with nothing to keep him occupied. Reference is made to the UN Standard Minimum Rules for the Treatment of Prisoners.

3.4 Counsel alleges that the trial judge's instructions to the jury and his failure to exclude certain evidence amount to a denial of justice, which, according to the Committee's jurisprudence, constitutes a violation of article 14, paragraphs 1 and 2. As to the trial judge's instructions to the jury, counsel submits that the trial judge prejudiced the author's case in the following respects:

the judge failed to remind the jury that the fact that no objection was made to the confession statement being admitted into evidence was irrelevant to the issue the jury had to decide, namely whether the statement was forged or not

the judge failed to direct the jury upon the law regarding self‑defence as to the facts allegedly admitted by the author, notwithstanding that the author relied upon a defence of alibi in the trial

the judge failed to remind the jury of the description of the assailant given by Victoria Lee and Audley Wilson (Victoria Lee testified that the black man who she saw stabbing the deceased was wearing a blue shirt, or at least a shirt with blue in it, whilst the shirt that was seized by the police was white and black. Audley Wilson, another eye witness to the struggle, testified that the assailant was 5'8"‑5'9", which is the author's height, but in the cross‑examination it was made clear that he at the preliminary hearing had claimed that the assailant was "about 5' and a little".)

3.5 As to the oral and written confession evidence allegedly given by the author in answer to questions from Senior Superintendent Hibbert, counsel submits that this evidence should have been excluded on the ground that the author should have been charged with murder before the questions were put. Further, it is submitted that the judge should have reconsidered the admissibility of the confession evidence having heard the cross‑examination of the police officers concerned and the sworn evidence of the author, notwithstanding his earlier ruling on the issue and the fact that defence counsel did not challenge the admissibility of the evidence.

3.6 Counsel alleges a violation of article 14, paragraph 3(e), on the ground that Miss Charmaine Jones and Miss Herma Ritchie, respectively the author's sister and her room‑mate, were willing to give evidence as witnesses on the author's behalf before the Court of Appeal, but did not attend the appeal because they were intimidated by the police and told that they would be arrested if they appeared.

3.7 Counsel alleges a violation of article 14, paragraphs 1, 2, 3(b), 3(d) and 5, on the ground that defence counsel on appeal, Lord Gifford, made an erroneous submission that there was no arguable point in the author's case, and, contrary to the author's instructions, stated that the author had accepted this advice. Counsel argues that Lord Gifford thereby failed to make a case as to whether the cautioned statement was forged or not. It is submitted that Lord Gifford failed to inform the Court both that he had advised the author to obtain a handwriting expert to review the signatures on the disputed statement, and that the author wanted to obtain such an expert, but did not have the necessary funds. Furthermore, counsel argues that Lord Gifford failed to ask for an adjournment to enable funds to be raised.

3.8 Counsel also alleges a violation of article 14, paragraph 5, on the ground that the original of the written confession was not available to the author or his counsel before the petition for special leave to the Privy Council, and therefore it could not be properly reviewed by a handwriting expert assigned by counsel. It is submitted that the State party has an obligation to preserve evidence relied upon in a trial at least until appeals have been exhausted, and that this obligation has been breached in this case with the effect that the author was deprived of an opportunity to place new material before the court.

The State party's submission and the author's comments thereon

4.1 In its submission of 14 February 1997, the State party raises no objections as to the admissibility of the communication, and offers its observations on the merits. The State party denies that any violation of the Covenant has occurred in the author's case.

4.2 With respect to the alleged violation of articles 7 and 10, paragraph 1, of the Covenant on the ground of "agony of suspense" suffered by the author due to the five years spent on death row, the State party submits that a prolonged stay on death row does not per se constitute cruel and inhuman treatment. Reference is made to the jurisprudence of the Committee.

4.3 As regards the alleged violation of article 14, paragraphs 1 and 2, on the ground of the trial judge's summing up, the State party submits that this is not a matter to be considered by the Committee. The State party makes reference to the jurisprudence of the Committee where it

holds that it can only examine whether such instructions were manifestly arbitrary or amounted to a denial of justice. It is submitted that neither of these exceptions are applicable to the author's case.

4.4 The second alleged violation of article 14 concerns the conduct of the trial judge in regard to allowing the author's oral and written confession into evidence. The State party submits that these matters relate to facts and evidence which according to the Committee's jurisprudence are best left to Appellate courts. It is stated that these issues were in fact examined by the Court of Appeal.

4.5 As regards the alleged violation of article 14, paragraphs 1,2, 3(b), 3(d) and 5, on the ground that the attorney who represented the author on appeal allegedly did not seek an adjournment in order to enable funds to be raised to retain a handwriting expert and that he instead advised the Court of Appeal that he had nothing to argue and that this had been accepted by the author, the State party submits that this allegation is based on assertions of what instructions that were given and how these were carried out. It is submitted that this is not a matter of State responsibility: the State party's obligation is to appoint competent counsel to the accused, but it cannot be held responsible for how he has carried out his instructions when there is no indication that agents of the State party, by act or omission, prevented him from conducting the case as he saw fit.

4.6 With regard to the alleged violation of article 14, paragraph 3(e), because two potential defence witnesses failed to give evidence before the Court of Appeal as they were threatened by the police, the State party notes that "these are very serious allegations which go to the core of the administration of justice and cast serious aspersions on the integrity of members of the police force." The State party is of the view that "these allegations must be supported by the clearest and most unambiguous evidence or be promptly withdrawn."

5.1 In his comments of 9 October 1998, counsel explains that the author was moved off death row on 4 July 1997 and into the main section of the prison. It is stated that the author received no "official confirmation of the reason for his move". Furthermore, counsel states that "the author understands that the State party has generally indicated that prisoners who have had their sentences commuted according to the Pratt & Morgan decision must serve a minimum non‑parole period of 7 years. It is not clear when the 7 years begin to run although in a recent decision in Jamaica, R v. Anthony, the judge ruled that the non‑parole period for a prisoner convicted of non‑capital murder should run from a date three months after the date of conviction." Counsel says that the author hopes that the same practice will be followed in all cases, but submits that the lack of clarity in this regard constitutes a "continuing uncertainty" in breach of articles 7 and 10. With regard to the conditions of detention, the author also submits that in the section of the prison to which he was moved on 4 July 1997, AIDS and HIV. infections are common among the prisoners.

5.2 In his submission of 9 October 1998, the author also forwards a new claim under articles 7 and 10. It is submitted that on 5 March 1997, the author was beaten and hit in the head by some unnamed warders, sustaining a cut for which he received ten stitches. Furthermore, the author states that upon the instruction of the Prison Director, the warders destroyed all his belongings save for two suits. Allegedly, this occurred with the full knowledge and the authorisation of two named superintendents. The author also claims that his visiting rights were suspended for three months and that the warder working on his section began harassing him. To substantiate this claim, counsel has forwarded a statement from the author dated 16 April 1997, an affidavit dated 14 July 1997 and an article in The Pen of May 1997.

5.3 As regards the alleged violations of article 14, paragraphs 1 and 2, on the grounds of the trial judge's directions to the jury on the confession statement and the admission of this evidence, counsel submits that the judge's errors on these points amounted to a denial of justice. Counsel further submits that the judgment of the Court of Appeal does not indicate that these issues were examined by it.

5.4 With regard to the alleged violation of article 14, paragraphs 1,2, 3(b), 3(d) and 5, on the ground of the previously described acts and omissions of the legal aid attorney who represented the author on appeal, counsel makes reference to the jurisprudence of the Committee and submits that a violation did occur as the legal aid attorney told the Court of Appeal that there was no merit in the application without the knowledge or consent of the author.

5.5 Counsel notes that the State party did not respond to the alleged violation of article 14(5) on the ground that the State party failed to preserve the original confession statement. Counsel reiterates the claim and makes reference to Walker and Richards v. Jamaica, in which the authors "had made diligent efforts to obtain documents necessary to the determination of the case by the Privy Council and the lack of availability and delay in locating them was attributed to the State party." Counsel submits that there have been made comparable diligent efforts to obtain the original alleged confession statement. In this regard, counsel points out that on 24 January 1996 he wrote to the Private Secretary to the Governor‑General of Jamaica, the solicitors for the Director of Public Prosecutions and the Privy Council clerk in Jamaica seeking the document. On 9 April 1996 he was provided with a copy. On 23 May 1996 and 3 June 1996, counsel again wrote to the Director for Public Prosecutions seeking the original. On 5 November 1996, the State party's counsel before the Privy Council stated that "it was accepted that the original document was lost and that this should not have happened ... normal procedure was for the return of original documents to the police station of arrest". Still according to counsel, the Privy Council clerk in Jamaica enquired at the police station on 21 November 1996, but obtained no information.

5.6 With regard to the two witnesses who allegedly failed to give evidence before the Court of Appeal because of police threats, counsel states that his agents in Jamaica, without success, have sought to obtain further evidence from these witnesses. According to counsel, contact was made with one of the witnesses but she repeated her unwillingness to give further evidence, suggesting that this was "because of intimidation by/fear of the authorities".

5.7 Counsel also alleges that because of the violations of article 14, also article 6, paragraph 2, was violated, since a death sentence was imposed contrary to the Covenant.

The State party's response and the author's further comments

6.1 In its response of 29 January 1999, the State party firstly contests that the author was not informed of the reason why he was removed from death row and placed in the main section of the prison. The State party claims that on 4 July 1997, the Superintendent of the Saint Catherine Adult Correctional Centre read a copy of the warrant for commutation of the author's death sentence to the author. Therefore, it is submitted, the author was aware that his sentence was commuted as of 4 July 1997.

6.2 The State party further denies that there is any uncertainty as to when death row prisoners, whose sentences have been commuted, become eligible for parole. The State party submits that the Offences Against the Person (Amendment) Act is abundantly clear as to when commuted prisoners become eligible for parole. Reference is made to sections 5A and 6(4) which read:

"Section 5A

Where pursuant to section 90 of the Constitution, a sentence of death has been commuted to life imprisonment, the case of the person in respect of whom the sentence was so committed shall be examined by a Judge of the Court of Appeal who shall determine whether the person should serve a period of more than seven years before becoming eligible for parole and if so, shall specify the period so determined.

Section 6(4)

Subject to subsection (5), an inmate ‑

(a) who has been sentenced to imprisonment for life; or

(b) in respect of whom ‑

(i) a sentence of death has been commuted to life imprisonment; and

(ii) no period has been specified pursuant to section 5A shall be

eligible for parole after having served a period of not less

that seven years."

6.3 The State party points out that under these sections "a death row prisoner who has his sentence commuted, would pursuant to section 5A have to serve the period determined by the Judge, or serve a minimum of seven years pursuant to section 6(4), before he becomes eligible for parole." The State party denies that the judgment referred to by the author, R v. Anthony Lewis, makes it unclear when the parole period starts to run for a commuted prisoner. In that particular case, the crime committed by the applicant was re‑classified as non‑capital murder and he was sentenced to life imprisonment and to serve 20 years before becoming eligible for parole, starting from a date 3 months after the date of his conviction. In deciding so, the Judge relied on the discretion conferred on him by section 7(2)c of the same act which states that the judge may decide

"whether, and if so to what extent, a specified period should elapse before the grant of parole in a case where murder is classified as non‑capital murder."

6.4 With regard to the alleged beatings on 5 March 1997, the State party comments that the author tried to escape on that day and that it will undertake a further investigation of the episode, the results of which will be forwarded to the Committee. As to the conditions of detention in general, the State party states that notwithstanding the contents of the NGO reports referred to by the author, a generalized position cannot be adopted. Rather, the approach to be taken is to deal with the complaints individually and consider each case on its individual merits. In light of this, the State party undertakes to investigate the conditions of the author's detention, and states that the results of the inquiry will be submitted to the Committee.

6.5 With regard to the alleged violations of article 14, paragraphs 1 and 2, on the ground of the trial judge's directions on and admission of the confession statement, the State party reiterated its position that no violation occurred. The State party cites the jurisprudence of the Committee and argues that there has been no denial of justice in the present case. The State party also reiterates its position with regard to the claim that article 14, paragraph 3(e), was violated as two potential defence witnesses allegedly had been threatened, and notes that the author has failed to produce any evidence to substantiate this claim. Furthermore, the State party submits that article 6, paragraph 2, has not been violated since the trial was lawful and in accordance with the Covenant.

6.6 With regard to the alleged violation of article 14, paragraph 5, on the ground of failure to preserve the author's alleged confession statement, the State party argues that the Walker and Richards case, to which the author refers, does not support his claim. The State party points to differences between the two cases as there in Walker and Richards, in spite of eight separate requests, was a delay of about 5 years before the author's representatives were informed by the Supreme Court of the availability of the authors' trial transcript and Court of Appeal judgment, documents that were necessary in the determination of the possibility for appeal to the Privy Council. In the present case, the author was provided with a copy three months after his first request. The State party submits that the failure in providing the original of the author's confession did not deprive him of his right to have his conviction and sentence reviewed in violation of article 14, paragraph 5. The State party points out that the Privy Council decided to dismiss the author's appeal even though one of the grounds of appeal was the State party's failure to preserve the original alleged confession statement.

6.7 With regard to the alleged violation of article 14, paragraphs 1,2, 3(b), 3(d) and 5, on the ground of the conduct of the author's appeal by his attorney, the State party makes reference to E. Morrison v. Jamaica and Smart v. Jamaica, and submits that the State party can not be held accountable for alleged errors made by a defence lawyer, unless it was or should have been manifest to the court that the lawyer's behaviour was incompatible with the interests of justice. It is submitted that in the present case, counsel's conduct did not deny the author of his right to justice, nor did it amount to a breach of article 14.

7.1 In his comments of 12 April 1999, counsel explains that the author acknowledges that the commutation warrant was read to him on 4 July 1997 and that he did not wish to suggest that he was not aware of the reasons for the move to the main section of the prison. However, he does submit that he has received no official confirmation of the reason for the move.

7.2 As regards the alleged violation of articles 7 and 10, paragraph 1, on the ground of uncertainty as to when the non‑parole period begins to run, counsel submits that the position remains unclear also after the State party's submission. From the State party's comment that the ruling in R v. Anthony Lewis only applies to that particular case, the author infers that the same solution (i.e. that the period commences three months after the date of conviction) will not be applied to other comparable cases, such as the author's own. It is submitted that although the minimum non‑parole period is set by the Offences Against the Person (Amendment) Act 1992, "the date on which this period commences has not been set down or clarified in any case."

7.3 With regard to the alleged beatings on 5 March 1997 and the State party's claim that the author tried to escape on that day, the author submits, as held in his affidavit of 14 July 1997, that "although he cut the lock on his cell he did not leave his cell as he had changed his mind and decided not to try to escape."

7.4 As regards the alleged violations of article 14, paragraphs 1 and 2, on the grounds of the trial judge's directions to the jury on the confession statement and the admission of this evidence, the author reiterates his claims that the judge's instructions and summing up amounted to a denial of justice. It is further argued that the State party has made no effort to explain why this exception from the principle that the Committee shall not re‑evaluate facts and evidence and the trial judge's instructions is not applicable in the present case.

7.5 On the issue of the author's appeal, and what instructions that were given and how these were carried out, counsel submits that the cases referred to by the State party are without relevance as they "can be distinguished on their facts." Counsel asserts that in the case of E. Morrison v. Jamaica, the allegations concerned the handling of the applicant's defence at the trial particularly with regard to failure to challenge the credibility of certain witnesses. In the case of Smart v. Jamaica, the applicant's counsel on appeal dropped two of the grounds of appeal, but not all, as in the present case. As opposed to these cases, it is submitted that the cases previously referred to by the author, i.e. Kelly v. Jamaica and Collins v. Jamaica, were "cases based on the same relevant facts" as in the author's case, because counsel in those cases "informed the Court of Appeal that there was no merit in the prisoners' appeals without the prisoners knowing they were going to do so and without their consent." Accordingly, it is submitted that the Committee should find a violation of article 14 also in this case.

Further submission from the State party, including the results of its investigation

8.1 In its submission of 2 November 1999, the State party again addresses the author's claims under articles 7 and 10, paragraph 1, and forwards the results of its investigations. As regards the claim that articles 7 and 10 were violated on account of the alleged uncertainty concerning the commencement of the non‑parole period to be served by the author, the State party offers a further explanation to its position. Under the Offences Against the Person (Amendment) Act 1992, the judge performing the review (the reclassification) shall determine whether, and if so, to what extent, a specified period should elapse before the grant of parole in a case where murder is classifiable as non‑capital (i.e. the "non‑parole period"). A judge, therefore, has the discretion to decide how long a prisoner, who has had his sentence commuted, must serve before he becomes eligible for parole. It is submitted that this is exactly what happened in the author's case, as it

did in R. v. Anthony Lewis and all other cases where such reclassifications have been made. Consequently, the State party repeats its submission that the Act does not create uncertainty and that there has been no breach of the Covenant in this regard in this case.

8.2 With regard to the alleged beatings, the State party states that on 5 March 1997, the author, along with three other inmates, attempted to escape from the prison. Allegedly, they escaped from their cells by cutting the iron bars and locks on their cell doors, but the plot was foiled when they were caught attempting to leave through the gate to a workshop. Subsequently all the four inmates were placed in cell No. 19. When asked to leave this cell so that it could be searched, the inmates allegedly refused to comply and began acting boisterously, threatening the officers and using foul language. The State party claims that the officers repeated the orders several times during the subsequent 15 minutes, but the inmates still refused to obey and therefore had to be removed with force. After their removal, it was discovered that they had in their possession a piece of cutlass, a piece of iron pipe and two hacksaw blades.

8.3 The State party states that it was during the forced removal of the inmates that they were injured. As a result of the injuries, the inmates received medical attention from the medical doctor at the prison. He referred them to the Spanish Town Hospital where they were examined by a Dr. Donald Neil. In his report, Dr. Neil stated that the author was admitted to the hospital "complaining of sustaining blows all over his body from prison warders at the prison. ... [the] examinations revealed a conscious and alert young man with vital signs. There were multiple contusions to the lower back plus swelling and tenderness to the left posterior chest. There was a 4cm laceration to the right parietal scalp. There were multiple linear abrasions to the right thigh, the anterior surface of the left leg plus swelling and tenderness to the middle one‑third of the right leg. X‑ray of the skull revealed no fractures. Treatment consisted of tetanus toxoid, antibiotic injection and suturing of the scalp laceration. He was discharged on antibiotics and painkillers."

8.4 In conclusion, the State party acknowledges that the author was beaten on 5 March 1997 after attempting to escape from the prison. However, it is submitted that the beating could not have been avoided as the author, along with the other inmates, failed to follow instructions issued by prison officers. Consequently, the State party "denies that the occurrence on 5 March constituted a breach of articles 7 and 10, paragraph 1".

8.5 The State party further states that their investigations have shown that the allegations made against the Director of the prison are false: "No instructions were given to clean out and burn the [author's] belongings. The [author's] fellow inmates ... substantiate this finding, as they both stated that they did not hear [the] Director give orders to the warders to destroy or burn things." As regards the suspension of the author's privileges, the State party submits that this was ordered pursuant to section 35(1) of the Corrections Act, which lays down clear instructions with regard to punishment for major and minor correctional offences.

8.6 As regards the author's claim that after being taken off death row on 4 July 1997 he was moved to a section of the prison where AIDS and HIV are common among the prisoners, the State party notes that when interviewed, the author stated that at no time during his prison sentence was he placed in a section where AIDS and HIV were common. Furthermore, the State

party claims that according to the author's prison record, he was moved from St. Catherine's District Prison to Tower Street Adult Correctional Centre shortly after the commutation of his death sentence.

8.7 In relation to the allegation that the author's conditions of detention at St. Catherine's District Prison violated articles 7 and 10, paragraph 1, of the Covenant, and in particular the allegation that the prison has inadequate medical service, the State party claims that the Prison "houses a Medical Centre that is staffed by two registered medical practitioners, a general practitioner and a psychiatrist. There is also a registered dentist. A matron who is a registered nurse, a qualified social worker and several medical orderlies assists these doctors. The general practitioner attends at the Medical Centre daily and when he is not on duty, he is on call; whilst the dentist attends at the Medical Centre three days every week. Additionally, when a prisoner makes a complaint of a medical nature, arrangements are made with a medical orderly for that prisoner to be taken to see the doctor at the very earliest opportunity. If the complaint is of a serious nature and a doctor is not on duty at the time or cannot be located, the prisoner is immediately dispatched to the Spanish Town General Hospital." The State party therefore denies that the prison has no or inadequate medical services in breach of articles 7 and 10. Furthermore, the State party denies that the prison, as alleged by the author, has no integral sanitation in the cells and that it is infested with vermin and that the kitchen and bakery have been condemned.

Issues and proceedings before the Committee

9.1 Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

9.2 The Committee notes that the State party in its submissions has addressed the merits of the communication. This enables the Committee to consider both the admissibility and merits of the case at this stage, pursuant to rule 94, paragraph 1, of the rules of procedure. However, pursuant to rule 94, paragraph 2, of the rules of procedure, the Committee shall not decide on the merits of a communication without having considered the applicability of any of the grounds of admissibility referred to in the Optional Protocol.

9.3 As to the claim that the author's detention on death row from 1992 to 1997 constitutes cruel, inhuman or degrading treatment, the Committee reiterates its constant jurisprudence that detention on death row for any specific period of time does not per se constitute a violation of articles 7 and 10, paragraph 1, of the Covenant, in absence of further compelling circumstances. As neither the author nor his counsel have adduced any such circumstances, the Committee finds this part of the communication inadmissible under article 2 of the Optional Protocol. On the other hand, the author's claims of violations of the same provisions both on the ground of the alleged beatings on 5 March 1997 and on the ground of deplorable conditions of the author's detention in general are, in the view of the Committee, sufficiently substantiated to be considered on the merits, and are therefore deemed admissible.

9.4 With regard to the author's allegation of violations of article 14, paragraphs 1 and 2, on the ground of improper instructions from the trial judge to the jury on the issues set out in para. 3.4 supra, and the admission of the confession statement and the police officers' testimony into evidence, the Committee reiterates that while article 14 guarantees the right to a fair trial, it is generally for the domestic courts to review the facts and evidence in a particular case. Similarly, it is for the appellate courts of States parties to review whether the judge's instructions to the jury and the conduct of the trial were in compliance with domestic law. As both parties also have pointed out, the Committee can, when considering alleged breaches of article 14 in this regard, solely examine whether the judge's instructions to the jury were arbitrary or amounted to a denial of justice, or if the judge manifestly violated his obligation of impartiality. The material before the Committee and the author's allegations do not show that the trial judge's instructions or the conduct of the trial suffered from any such defects. Accordingly, this part of the communication is inadmissible as the author has failed to forward a claim within the meaning of article 2 of the Optional Protocol.

9.5 With regard to the alleged violation of article 14, paragraph 3(e), on the ground that two named witnesses were willing to give evidence before the Court of Appeal but declined because of police intimidation, the Committee notes that the State party has disputed the author's allegations and that the author has not adduced any evidence in support of them, nor has he made any claims as to what new evidence these witnesses would provide. Furthermore, the material before the Committee shows that the author's counsel before the Court of Appeal, Lord Gifford, was granted an adjournment of 10 months in order to interview one of the potential witnesses and to obtain any other new evidence. However, at the hearing, Lord Gifford did not mention any police intimidation of defence witnesses. In the circumstances, the Committee finds that the claim is inadmissible under article 2 of the Optional Protocol for lack of substantiation.

9.6 The Committee declares the remaining claims under article 14 admissible, and proceeds with the examination of the merits of all admissible claims, in the light of the information made available to it by the parties, as required by article 5, paragraph 1, of the Optional Protocol.

10.1 The author has claimed a violation of articles 7 and 10, paragraph 1, on the ground of the conditions of detention to which he was subjected while detained at St. Catherine's District Prison. To substantiate his claim, the author has invoked three NGO reports specified in para. 3.2 supra. The Committee notes that the author refers to the inhuman and degrading prison conditions in general, such as the complete lack of mattresses, other bedding and furniture in the cells; that there is a desperate shortage of soap, toothpaste and toilet paper; that the quality of food and drink is very poor; that there is no integral sanitation in the cells and open sewers and piles of refuse; that there is no doctor, leaving warders with very limited training to treat medical problems. In addition to the NGO reports, counsel makes reference to reports from prisoners, stating that the prison is infested by vermin, and that the kitchen and the bakery despite having been condemned for many years are still in regular use. In addition to these claims, the author has also made specific allegations that he is confined to his cell for 22 hours every day in enforced darkness, isolated from other men, without anything to keep him occupied.

10.2 The Committee notes that with regard to these allegations, the State party has disputed only that there is inadequate medical facilities, that the prison is infested with vermin and that the kitchen and bakery have been condemned. The rest of the allegations put forward by the author stand undisputed and, in the circumstances, the Committee finds that article 10, paragraph 1, has been violated.

10.3 With regard to the author's claim that, on 5 March 1997, he was beaten by several warders at St. Catherine's District Prison, the Committee notes that the State party in its investigations of the allegations found that the beating was unavoidable as the author and three inmates had failed to follow repeated instructions to leave a particular cell. However, the Committee also notes the medical report provided by the State party which reveals that the author sustained injuries to his head, back, chest and legs which appear to go beyond that which is necessary to forcefully remove someone from a cell. The Committee therefore concludes that excessive force was used, in violation of articles 7 and 10, paragraph 1, of the Covenant.

10.4 The author has alleged that articles 7 and 10, paragraph 1, were violated also because of "continuing uncertainty" with regard to the non‑parole period to be served by the author. The Committee notes that there appears to be agreement between the parties that upon the commutation of the author's sentence, he is subject to a non‑parole period of seven years. Neither of the parties have, however, provided the Committee with a copy of a decision to this effect. The Committee notes that the State party claims that there is no uncertainty as to when this period begins to run, but that it does not in fact explicitly state on which date the period began to run in the author's case. However, based on the cited legislation and the State party's explanation, it does seem clear that when it is not otherwise decided, the non‑parole period does not start to run any later than on the date of his commutation. The Committee cannot see that any uncertainty the author may experience as to whether the period started to run on that date or at any time prior to that, can constitute cruel, inhuman or degrading treatment or punishment in violation of the Covenant.

10.5 With regard to the alleged violation of article 14, paragraphs 1, 2, 3(b), 3(d) and 5, on the ground that the author was not effectively represented on appeal, the Committee notes that it is correct as stated by counsel that the Committee in its prior jurisprudence has found violations of article 14, paragraphs 3(d) and 5, in situations where counsel has abandoned all grounds of appeal and the court has not ascertained that this was in compliance with the wishes of the client. This jurisprudence does not, however, apply to this case, in which the Court of Appeal, according to the material before the Committee, did ascertain that the applicant had been informed and accepted that there were no arguments to be made on his behalf. In this regard, the Court of Appeal states:

"Lord Gifford, QC informed the court that notwithstanding his best efforts he was still firmly of the view that there was nothing he could urge on behalf of the applicant and that he had further informed the applicant accordingly and that he had accepted the advice of counsel."

10.6 The Committee also notes that a letter of 27 December 1995 from Lord Gifford to the author's present counsel, which is appended to the author's original submission, implies that the Court of Appeal's judgment gave a correct account of the events, as he states that he, over a period of about a year, on several occasions discussed the case with the author and informed him that he could see no merit in the appeal unless they came up with new evidence. He also invited the author to get a second opinion. However, even if the situation, as alleged by the author, was that he had not accepted his counsel's advice, this cannot be attributed to the State party. Nor can the Committee find anything else in the material before it to suggest that the lawyer's conduct was incompatible with the interests of justice. In this regard, the Committee notes, as opposed to what has been claimed by the author, that a 10 month adjournment was given in order to obtain new evidence, but that the counsel failed to secure any new evidence in that period. In the view of the Committee, this again cannot be attributed to the State party, and it concludes that there has been no violation of article 14, paragraphs 3(d) and 5, on this ground.

10.7 While recognizing that in order for the right to review of one's conviction to be effective, the State party must be under an obligation to preserve sufficient evidential material to allow for such a review, the Committee cannot see, as implied by counsel, that any failure to preserve evidential material until the completion of the appeals procedure constitutes a violation of article 14, paragraph 5. Article 14, paragraph 5, will, in the view of the Committee, only be violated where such failure prejudices the convict's right to a review, i.e. in situations where the evidence in question is indispensable to perform such a review. It follows that this is an issue which it is primarily for the appellate courts to consider.

10.8 In the present case, the State party's failure to preserve the original confession statement was made one of the grounds of appeal before the Judicial Committee of the Privy Council which, nevertheless, found that there was no merit in the appeal and dismissed it without giving further reasons. The Human Rights Committee is not in a position to re‑evaluate the Judicial Committee's finding on this point, and finds that there was no violation of article 14, paragraph 5, in this respect.

12. In accordance with article 2, paragraph 3(a), of the Covenant, the State party is under an obligation to provide Mr. Robinson with an effective remedy, including compensation. The State party is under an obligation to ensure that similar violations do not occur in the future.

13. On becoming a State party to the Optional Protocol, Jamaica recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not. This case was submitted for consideration before Jamaica's denunciation of the Optional Protocol became effective on 23 January 1998; in accordance with article 12(2) of the Optional Protocol the communication is subject to the continued application of the Optional Protocol. Pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established. The Committee wishes to receive from the State Party, within ninety days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

L. Communication No. 759/1997, Osbourne v. Jamaica

(Views adopted on 15 March 2000, sixty‑eighth session)*

Submitted by:	George Osbourne (represented by S. Lehrfreund of the London law firm Simons Muirhead and Burton)
Alleged victim:	The author
State party:	Jamaica
Date of communication:	12 June 1997 (initial submission)
Prior decision:	Special Rapporteur's rule 86/91 Request transmitted to the State party on 23 June 1997

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 15 March 2000,

Having concluded its consideration of communication No. 759/1997 submitted to the Human Rights Committee by Mr. George Osbourne under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The author of the communication is George Osbourne, a Jamaican national currently detained at the General Penitentiary, Kingston, Jamaica. He claims to be a victim of a violation by Jamaica of articles 7 and 10, paragraph 1, of the International Covenant of Civil and Political Rights. He is represented by Mr. Saul Lehrfreund of the London law firm Simons Muirhead and Burton.

* The following members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar Gaitan de Pombo, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski, Mr. Maxwell Yalden and Mr. Abdallah Zakhia.

The facts as submitted by the author

2.1 In October 1994, the author was convicted by the Westmoreland Circuit court, Savannah‑la‑Mar, along with a co‑accused for illegal possession of firearm, robbery with aggravation and wounding with intent. He is serving a sentence of 15 years' imprisonment with hard labour and is subject to receive 10 strokes of the tamarind switch.

2.2 The author's appeal against the conviction and the sentence was heard and dismissed on 5 September 1995. Counsel claims that there is no known record of proceedings before the Court of Appeal, and that no reasons for dismissal were given in writing.

2.3 Counsel contends that the applicant is unable to pursue a constitutional motion before the Supreme (Constitutional) Court of Jamaica because he has no private means and is not entitled to any form of legal aid for such a motion. Counsel cites decisions by the Human Rights Committee which have consistently rejected the Jamaican Government's contention that an applicant under the Optional Protocol must pursue a Constitutional motion before the Supreme (Constitutional) Court of Jamaica in order to exhaust domestic remedies.

The complaint

3.1 The author submits that the use of the tamarind switch as a form of punishment is inherently cruel, inhuman and degrading and therefore in violation of article 7 of the Covenant.

3.2 Counsel states that the basic provision for flogging and whipping in Jamaica is preserved by the Constitution of Jamaica 1962. The relevant statutory provisions governing flogging and whipping are the Flogging Regulation Act 1903, the (Prevention of) Crime Act, 1942 and the Approval and Directions under section 4 thereof, dated 26 January 1965. It is claimed that in the absence of regulations more extensive than those set out in the Approval and Directions, the actual procedure used appears to be largely at the discretion of the implementing prison authorities. In this context, counsel refers to the affidavit of E.P., formerly incarcerated in the General Penitentiary, Kingston, Jamaica.

3.3 In his affidavit, Mr. E.P. states that on 8 August 1994 after pleading guilty to wounding with intent, he was sentenced to four years hard labour and six strokes of the tamarind switch. He was scheduled for release on 1 March 1997 after being granted one‑third remission of his sentence for good behaviour. The day before his release, a batch of more than 12 correctional officers came and took him from his cell to another section of the prison. When he realized that the sentence of flogging was about to be carried out, he protested, with the result that he was hit in the stomach by one of the officers. He was then seized, blindfolded and ordered to remove clothing from the lower part of his body. When this was done, he was forced to lean forward across a barrel and one of the warders placed his penis into a slot in the barrel. He was then strapped into that position and struck across the buttocks with an instrument that he was unable to see. E.P. states that an unnecessary number of prison warders (25) were present at the time of the whipping and that this added to his humiliation. He further states that the doctor was the only outsider present and that he was not examined by the doctor after the whipping.

3.4 It is further submitted that the specific features of the regulation of whipping in Jamaica as shown in the case of E.P., including delay between sentence and execution causing additional anguish, the humiliating number and identity of witnesses to the punishment, no provision for the attendance by witnesses on behalf of the prisoner and the humiliation of being strapped naked to a barrel, aggravate the humiliation inherent in the punishment.

3.5 Counsel states that corporal punishment has not been practised in Jamaica in 25 years up to 1994, and contends that if a rising incidence of serious crime in Jamaica is advanced as justification for the reintroduction of corporal punishment, the empirically established lack of deterrence destroys this justification. Counsel further notes that by regulation 9 of the Flogging Regulation Act 1903 "in no case shall a sentence of flogging be passed upon a female." He contends that if deterrence of crime were the purpose of the provision, such an exception would not arise.

The State party's submission and counsel's comments thereon

4.1 In its submission of 28 August 1997, the State party challenges the admissibility of the communication under article 5, paragraph 2, of the Optional Protocol, claiming that domestic remedies have not been exhausted as the author has not petitioned the Judicial Committee of the Privy Council.

4.2 Without prejudice to its response on admissibility, the State party also responds to the merits by simply stating that it denies that articles 7 and 10 were breached by the imposition of a sentence of flogging on the author, as the relevant legislation, e.g. the Flogging Regulation Act and the Crime (Prevention) Act, are protected from unconstitutionality by Section 26 of the Constitution.

5.1 In his submission dated 13 November 1997, the author contends that the State party's observations are wrong and that the communication is admissible. In this regard, counsel states that there is no known record of the proceedings before the Court of Appeal on 25 September 1995, and that no reason for the dismissal of the appeal was given in writing. Furthermore, counsel points out that the author did not petition the Privy Council on the advice of Counsel, Mr. Hugh Davies. It is stated that Mr. Davies was requested to advise on the merits of an application for Special Leave to Appeal to the Judicial Committee of the Privy Council. In his advice, a copy of which has been made available to the Committee, he explains that the constitutionality of the sentence could only be contested through a constitutional motion before the relevant Jamaican courts, a motion which London counsel were not in a position to forward. With this background, the author was advised by Mr. Davies that there was no reasonable prospect of leave to appeal being granted.

5.2 The author also submits that a constitutional motion to the Supreme Court of Jamaica was not an available remedy in this case. Counsel argues that the lack of private funding and the unavailability of legal aid or lawyers willing to undertake such representation without payment inhibited the pursuit of such a motion which, given the complexity of the Constitution as a legal document, clearly required expert legal representation to establish a reasonable prospect of

success. In conclusion, it is submitted that on account of lack of legal aid the remedy before the Constitutional Court of Jamaica was not available to the author and that the domestic remedies must therefore be taken to be exhausted.

5.3 With regard to the merits of the case, counsel submits that the State party's reference to its constitution cannot in itself protect the sentence from challenge of a violation of articles 7 and 10, paragraph 1, of the Covenant.

New claim submitted by the author

6.1 In his letter of 6 January 1998, the author forwards a new claim that, on 13 December 1997, he was beaten severely by three warders at the General Penitentiary in Kingston.

6.2 The author states that on 13 December 1997, he was stabbed in the back with a knife by an inmate after having been attacked by him and three other inmates. Upon notifying a warder of the stabbing, the author was sent to see a named corporal, who allegedly asked the author to identify the assailants. The author states that he pointed out three of the assailants, and that the corporal recovered two knives and one icepick from them and then started beating the inmate who had admitted to stabbing the author. However, after having been beaten for a while, the inmate allegedly claimed that the author had provoked the stabbing by first attacking him with a knife. The author states that this was not true, but the corporal nonetheless started beating him. Two other warders allegedly joined him, and the author was beaten until he fell unconscious. He claims that he remembers blood running through his nose and mouth, and that he remained unconscious until he woke up in a vehicle on its way to the Kingston Public Hospital.

6.3 The author states that as a result of the beating, he suffered internal bleeding and that he was treated for this at the hospital until 16 December 1997. He claims that on 15 December 1997, he was visited by some policemen from Elliston Road Police Station who took a statement from him. He also claims that after his discharge from hospital, he gave a statement to an assistant of the Superintendent of the prison, but that all subsequent requests to see the Superintendent have been denied.

6.4 The author's letter was sent to the State party, with a request for comments, in order to enable the Committee to deal with all claims in the same procedure.

The State party's submission concerning the new claim

7.1 In its Note of 2 November 1998, the State party states that the Department of Correctional Services had been requested to investigate the new claims, and that the results of its investigation would be communicated to the Committee upon receipt.

7.2 In its submission of 17 May 1999, the State party forwards the results of its investigations and denies that any breaches of the Covenant had occurred. The State party submits that an injury report from the Tower Street Adult Correctional Centre, dated 13 December 1997, indicates that the author was stabbed by another inmate, and that he was taken to the institution's hospital for initial treatment, before he was referred to the Kingston Public Hospital where he remained hospitalized until 15 December 1997. A medical report from Dr. N. Graham, General Surgeon at the Kingston Public Hospital, a copy of which is attached to the State party's submission, states that the author "had no loss of consciousness, no dyspnea nor did he vomit or spat blood." Furthermore, the report states that his injuries consisted of a stab wound to the chest. There is no mention of injuries received as results of beatings.

7.3 The State party further states that the Staff Officer in question ("the corporal") denies having used any force against the author on the date in question. He only admits to having questioned him on whether he had a knife in his possession. Another warder who was present during the alleged incident also admits to having questioned the author whether he had a knife. Allegedly, this warder states that the author was questioned because the prison authorities suspected that he had a knife in his possession, and admits that some force was used in attempting to retrieve the knife. However, he states that the use of force did not last very long, on account of the author's injuries. This warder cannot recall whether the previously mentioned Staff Officer was in the vicinity at the time.

7.4 In conclusion, based on its investigation, the State party submits that the Staff Officer ("the corporal") did not beat the author on 13 December 1997. The State party admits that, while attempting to ascertain whether the author had a knife in his possession, some force was used against him, but it states that the force used was not excessive and not to the extent alleged by the author. It is further submitted that the medical report provides evidence that excessive force was not used, because of the absence of injuries other than those caused by the stabbing incident.

Admissibility consideration and examination of the merits

8.1 Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with article 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

8.2 The Committee notes that the State party has contested the admissibility of the original claim, contending that domestic remedies have not been exhausted since the author has not petitioned the Judicial Committee of the Privy Council. The Committee recalls its constant jurisprudence that for purposes of article 5, paragraph 2(b), of the Optional Protocol, domestic remedies must be both effective and available. With respect to the author's possibility of challenging the legitimacy of the sentence imposed on him, the Committee notes counsel's assertion that such a challenge could only be lodged as a constitutional motion before the Jamaican courts, and that a petition to the Judicial Committee of the Privy Council on this point thus would have no prospect of success. The Committee also notes that in its observations on admissibility, the State party merely in a single sentence claims that the Privy Council could have been petitioned, without elaborating on whether this would be an effective and available remedy, and without commenting on counsel's assertions in this regard. In the circumstances, the Committee holds that petitioning the Judicial Committee of the Privy Council would not have constituted an available and effective remedy for purposes of article 5, paragraph 2(b), of the Optional Protocol.

8.3 With regard to the author's possibility of filing a constitutional motion, the Committee notes that this issue has not been commented by the State party and considers, in view of its constant jurisprudence, that in the absence of legal aid, a constitutional motion was not an available and effective remedy in the present case. In conclusion, the Committee finds that it is not precluded by article 5, paragraph 2(b), of the Optional Protocol from considering the original claim.

8.4 Noting that the State party has not contested the admissibility of the new claim, the Committee also declares this claim admissible, and proceeds with the examination of the merits of the admissible claims, in the light of the information made available to it by the parties, as required by article 5, paragraph 1, of the Optional Protocol.

9.1 The author has claimed that the use of the tamarind switch constitutes cruel, inhuman and degrading punishment, and that the imposition of the sentence violated his rights under article 7 of the Covenant. The State party has contested the claim by stating that the domestic legislation governing such corporal punishment is protected from unconstitutionality by section 26 of the Constitution of Jamaica. The Committee points out, however, that the constitutionality of the sentence is not sufficient to secure compliance also with the Covenant. The permissibility of the sentence under domestic law cannot be invoked as justification under the Covenant. Irrespective of the nature of the crime that is to be punished, however brutal it may be, it is the firm opinion of the Committee that corporal punishment constitutes cruel, inhuman and degrading treatment or punishment contrary to article 7 of the Covenant. The Committee finds that by imposing a sentence of whipping with the tamarind switch, the State party has violated the author's rights under article 7.

9.2 With regard to the author's claim that, on 13 December 1997, he was beaten severely by three warders of the General Penitentiary in Kingston, the Committee notes that the State party in its investigations of the allegations found that the warders had not exercised more force than that which was necessary to ascertain whether the author was in possession of a knife. Furthermore, the State party has provided the Committee with copies of medical reports which contain no mention of the injuries which the author claims to have sustained as a result of the alleged beatings. Based on the material before it, the Committee therefore cannot find a violation of the Covenant on this ground.

10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it reveal a violation of article 7 of the International Covenant on Civil and Political Rights.

11. Under article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Mr. Osbourne with an effective remedy, and should compensate him for the violation. The State party is also under an obligation to refrain from carrying out the sentence of whipping upon Mr. Osbourne. The State party should ensure that similar violations do not occur in the future by repealing the legislative provisions that allow for corporal punishment.

12. On becoming a State party to the Optional Protocol, Jamaica recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not. This case was submitted for consideration before Jamaica's denunciation of the Optional Protocol became effective on 23 January 1998; in accordance with article 12(2) of the Optional Protocol the communication is subject to the continued application of the Optional Protocol. Pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant. The Committee wishes to receive from the State Party, within ninety days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

M. Communication No. 760/1997, J.G.A. Diergaardt et al. v. Namibia

(Views adopted on 25 July 2000, sixty‑ninth session)*

Submitted by:	Rehoboth Baster Community et al. (represented by Dr. Y. J. D. Peeters, their international legal counsel)

Alleged victim:	The authors

State party:	Namibia

Date of communication:	17 November 1996 (initial submission)

Date of admissibility decision:	7 July 1998

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 25 July 2000,

Having concluded its consideration of communication No. 760/1997 submitted to the Human Rights Committee by J.G.A. Diergaardt et al. under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the authors of the communication, and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The authors of the communication are J.G.A. Diergaardt, Captain of the Rehoboth Baster Community, D.J. Izaaks, Captain a.i. of the Rehoboth Baster Community, Willem van Wijk and Jan Edward Stumpfe, members of the Legislative Council of the Rehoboth Baster Community, Andreas Jacobus Brendell, Speaker of the Rehoboth Baster Community, and J. Mouton and John Charles Alexander McNab, members of the Rehoboth Baster Community.

* The following members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. P.N. Bhagwati, Ms. Christine Chanet, Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar Gaitan de Pombo, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski, Mr. Maxwell Yalden, and Mr. Abdallah Zakhia. The text of seven individual opinions signed by eleven Committee members is appended to this document.

They present the communication on their own behalf and on behalf of the Rehoboth Baster Community and claim to be a victim of a violation by Namibia of articles 1, 14, 17, 25(a) & (c), 26 and 27 of the Covenant. They are represented by Dr. Y.J.D. Peeters, their international legal counsel.

The facts as submitted by the authors

2.1 The members of the Rehoboth Baster Community are descendants of indigenous Khoi and Afrikaans settlers who originally lived in the Cape, but moved to their present territory in 1872. They were governed by their 'paternal laws', which provided for the election of a Captain, and for rights and duties of citizens. At present, the community numbers some 35,000 people and the area they occupy (south of Windhoek) has a surface of 14,216 square kilometres. In this area the Basters developed their own society, culture, language and economy, with which they largely sustained their own institutions, such as schools and community centres.

2.2 Their independence continued throughout the German colonial reign of Namibia, and was recognized by South Africa when it became the mandatory for South West Africa. However, in 1924, because of disagreement among the Basters about an agreement concluded with South Africa concerning the administration of the district of Rehoboth, the South African government enacted proclamation No. 31 whereby all powers of the Captain, the courts and officials appointed by the Council, were transferred to the Magistrate and his Court, thereby suspending the agreement on self‑government. In 1933, a gradual process of restoring some form of local government was introduced by the establishment of an Advisory Council, members of which were elected by the community.

2.3 By Act No. 56 of 1976, passed by the South African parliament, the Rehoboth people were granted "self‑government in accordance with the Paternal Law of 1872". The law provided for the election of a Captain every five years, who appointed the Cabinet. Laws promulgated by the Cabinet had to be approved by a 'Volksraad' (Council of the people), consisting of nine members.

2.4 According to counsel, in 1989, the Rehoboth Basters accepted under extreme political pressure, the temporary transfer of their legislative and executive powers into the person of the Administrator‑General of South West Africa, so as to comply with UN Security Council resolution nr.435 (1978). In the motion, adopted by the Council of Rehoboth on 30 June 1989, the Administrator General was requested to administer the territory as an agent of the Captain and not to make any law or regulation applicable to Rehoboth without consent of the Captain, the Cabinet and the Council; at the end of the mandate the Government of Rehoboth would resume authority. The proclamation by the Administrator‑General on the transfer of powers of legislative authority and government of Rehoboth, of 30 August 1989, suspends the powers of the Legislative Council and the Captain's Council of Rehoboth "until the date immediately before the date upon which the territory becomes independent". It is therefore submitted that the effect of this transfer expired on the day before independence of Namibia, and that thus on 20 March 1990, the traditional legal order and Law 56 of 1976 were in force on the territory of Rehoboth. A resolution restoring the power of the Captain, his Council and the legislative Council was adopted by the Rehoboth People's Assembly on 20 March 1990. On 21 March 1990, Namibia became independent, and the Constitution came into force.

2.5 The authors submit that the Government of Namibia did not recognize their independence and the return to the status quo ante, but expropriated all communal land of the community through application of schedule 5 of the Constitution, which reads:

(1) All property of which the ownership or control immediately prior to the date of independence vested in the Government of the Territory of South West Africa, or in any Representative Authority constituted in terms of the Representative Authorities Proclamation, 1980 (Proclamation AG 8 of 1990) or in the Government of Rehoboth, or in any other body, statutory or otherwise, constituted by or for the benefit of any such Government or Authority immediately prior to the date of independence, or which was held in trust for or on behalf of the Government of an independent Namibia, shall vest in or be under the control of the Government of Namibia.

..."

According to the counsel, this has had the effect of annihilating the means of subsistence of the community, since communal land and property was denied.

2.6 On 22 June 1991, the Rehoboth people organized general elections for a Captain, Council and Assembly according to the Paternal Laws. The new bodies were entrusted with protecting the communal properties of the people at all cost. Subsequently, the Rehoboth Baster Community and its Captain initiated a case against the Government of Namibia before the High Court. On 22 October 1993 the Court recognized the community's locus standi. Counsel argues that this implies the recognition by the Court of the Rehoboth Basters as a people in its own right. On 26 May 1995, the High Court however rejected the community's claim to the communal property. On 14 May 1996, the Supreme Court rejected the Basters' appeal. With this, it is submitted that all domestic remedies have been exhausted.

2.7 On 28 February 1995, the International Covenant on Civil and Political Rights and the Optional Protocol thereto entered into force for Namibia.

The complaint

3.1 Counsel submits that the Government continues to confiscate the assets of the Rehoboth Basters, and that the Captain and other leaders and organizations were evicted from and deprived of the Captain's residence, the administrative offices, the community hall, the communal land and of the assets of the Rehoboth Development Corporation. Counsel submits that this policy endangers the traditional existence of the community as a collective of mainly cattle raising farmers. He explains that in times of drought (as at the time when the communication was submitted) the community needs communal land, on which pasture rights are given to members of the community on a rotating basis. The expropriation of the communal land and the consequential privatization of it, as well as the overuse of the land by inexperienced newcomers to the area, has led to bankruptcy for many community farmers, who have had to slaughter their animals. As a consequence, they cannot pay their interests on loans granted to them by the Development Corporation (which used to be communal property but has now been seized by the Government), their houses are then sold to the banks and they find themselves homeless.

Counsel emphasizes that the confiscation of all property collectively owned by the community robbed the community of the basis of its economic livelihood, which in turn was the basis of its cultural, social and ethnic identity. This is said to constitute a violation of article 27.

3.2 In this context, the authors claim to be victims of a violation by the Government of Namibia of article 1 of the Covenant. They point out that the Namibian High Court has recognised them as a distinct community with a legal basis. They claim that their right to self‑determination inside the republic of Namibia (so‑called internal self‑determination) has been violated, since they are not allowed to pursue their economic social and cultural development, nor are they allowed to freely dispose of their community's national wealth and resources. By enactment of the law on regional government 1996, the 124 year long existence of Rehoboth as a continuously organised territory was brought to an end. The territory is now divided over two regions, thus preventing the Basters from effectively participating in public life on a regional basis, since they are a minority in both new districts. Counsel claims that this constitutes a violation of article 25 of the Covenant.

3.3 The authors further claim a violation of article 14 of the Covenant, since they were forced to use English throughout the court proceedings, a language they do not normally use and in which they are not fluent. Moreover, they had to provide sworn translations of all documents supporting their claims (which were in Afrikaans)at very high cost. They claim therefore that their right to equality before the Courts was violated, since the Court rules favour English speaking citizens.

3.4 In this context, counsel points out that article 3 of the Constitution declares English to be the only official language in Namibia. Paragraph 3 of this article allows for the use of other languages on the basis of legislation by Parliament. Counsel states that seven years after independence such a law has still not been passed, and claims that this constitutes discrimination against non‑English speakers. According to counsel, attempts by the opposition to have such legislation enacted have been thwarted by the Government which has declared to have no intention to take any legislative action in this matter. In this connection, counsel refers to the 1991 census, according to which only 0.8 percent of the Namibian population uses English as mother tongue.

3.5 As a consequence the authors have been denied the use of their mother tongue in administration, justice, education and public life. This is said to be a violation of their rights under articles 26 and 27 of the Covenant.

3.6 The authors further claim a violation of article 17 of the Covenant, since they and their cattle have been expelled from the lands which they held in collective property.

3.7 Counsel requests the Committee for interim measures of protection under rule 86 of the rules of procedure. He requests that the Committee de

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