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 ba

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