A/56/40 (Vol. II)

United Nations

Report of the Human Rights Committee

Volume II

General Assembly

Paragraphs Page

Executive summary

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 at sessions

D. Solemn declaration

E. Election of officers

F. Special rapporteurs

G. Amended consolidated guidelines for States parties'

reports and amended rules of procedure

H. Working groups

I. Commemorative event to mark the twenty-fifth

anniversary of the Covenant

J. Related United Nations human rights activities

K. Meeting with States parties

L. Derogations pursuant to article 4 of the Covenant

M. General Comment under article 40, paragraph 4

of the Covenant

N. Staff resources

O. Publicity for the work of the Committee

GE.01-44677 (E)

CONTENTS (continued)

Paragraphs Page

Chapter

I. (cont'd)

P. Documents and publications relating to the work of

the Committee

Q. Future meetings of the Committee

R. Adoption of the report

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 2000 to July 2001

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

Trinidad and Tobago

Denmark

Argentina

Gabon

Peru

CONTENTS (continued)

Paragraphs Page

Chapter

IV. (cont'd)

Venezuela

Dominican Republic

Uzbekistan

Croatia

Syrian Arab Republic

Netherlands

Czech Republic

Monaco

Guatemala

Democratic People's Republic of Korea

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. Review of decisions declaring communications admissible .......

F. Issues considered by the Committee

G. Remedies called for under the Committee's Views

VI. FOLLOW-UP ACTIVITIES UNDER THE OPTIONAL

PROTOCOL

CONTENTS (continued)

Page

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 27 JULY 2001

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, 2000-2001

A. Membership of the Human Rights Committee

B. Officers

III. A. CONSOLIDATED GUIDELINES FOR STATE REPORTS UNDER

THE INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS (as amended at the seventieth session)

B. REVISED RULES OF PROCEDURE OF THE COMMITTEE

(as formally amended at the seventy-first session)

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

VI. GENERAL COMMENT ADOPTED BY THE HUMAN RIGHTS

COMMITTEE UNDER ARTICLE 40, PARAGRAPH 4, OF THE

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

General Comment No. 29 on article 4

CONTENTS (continued)

Page

Annexes

VII. LIST OF STATES PARTIES' DELEGATIONS THAT PARTICIPATED

IN THE CONSIDERATION OF THEIR RESPECTIVE REPORTS BY

THE HUMAN RIGHTS COMMITTEE AT ITS SEVENTIETH,

SEVENTY-FIRST AND SEVENTY-SECOND SESSIONS

VIII. LIST OF DOCUMENTS ISSUED DURING THE REPORTING PERIOD

IX. EXCERPTS FROM THE COMMITTEE'S CONTRIBUTION TO THE

WORLD CONFERENCE AGAINST RACISM

X. 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. 547/1993, Mahuika et al. v. New Zealand

(Views adopted on 27 October 2000, seventieth session) ...................................... 11

Appendix

B. Communication No. 630/1995, Mazou v. Cameroon

(Views adopted on 26 July 2001, seventy-second session) .................................... 30

C. Communication No. 675/1995, Toala et al. v. New Zealand

(Views adopted on 2 November 2000, seventieth session) .................................... 35

Appendix

D. Communication No. 687/1996, Rojas García v. Colombia

(Views adopted on 3 April 2001, seventy-first session) .......................................... 48

Appendix

E. Communication No. 727/1996, Paraga v. Croatia

(Views adopted on 4 April 2001, seventy-first session) .......................................... 58

F. Communication No. 736/1997, Ross v. Canada

(Views adopted on 18 October 2000, seventieth session) ...................................... 69

Appendix

G. Communication No. 790/1997, Cheban v. The Russian Federation

(Views adopted on 24 July 2001, seventy-second session) .................................... 88

CONTENTS (continued)

Page

Annexes

X. (cont'd)

H. Communication No. 806/1998, Thompson v. St. Vincent and the

Grenadines (Views adopted on 18 October 2000, seventieth session) .................... 93

Appendix

I. Communication No. 818/1998, Sextus v. Trinidad and Tobago

(Views adopted on 16 July 2001, seventy-second session) .................................. 111

Appendix

J. Communication No. 819/1998, Kavanagh v. Ireland

(Views adopted on 4 April 2001, seventy-first session) ........................................ 122

Appendix

K. Communication No. 821/1998, Chongwe v. Zambia

(Views adopted on 25 October 2000, seventieth session) .................................... 137

L. Communication No. 833/1998, Karker v. France

(Views adopted on 26 October 2000, seventieth session) .................................... 144

M. Communication Nos. 839/1998, 840/1998 and 841/1998

Mansaraj et al. v. Sierra Leone, Gborie et al. v. Sierra Leone and

Sesay et al. v. Sierra Leone

(Views adopted on 16 July 2001, seventy-second session) .................................. 153

N. Communication No. 846/1999, Jansen-Gielen v. The Netherlands

(Views adopted on 3 April 2001, seventy-first session) ........................................ 158

Appendix

O. Communication No. 855/1999, Schmitz-de-Jong v. The Netherlands

(Views adopted on 16 July 2001, seventy-second session) .................................. 165

P. Communication No. 857/1999, Blazek et al. v. The Czech Republic

(Views adopted on 12 July 2001, seventy-second session) .................................. 168

Appendix

CONTENTS (continued)

Page

Annexes

X. (cont'd)

Q. Communication No. 858/1999, Buckle v. New Zealand

(Views adopted on 25 October 2000, seventieth session) .................................... 175

R. Communication No. 869/1999, Piandiong et al. v. The Philippines

(Views adopted on 19 October 2000, seventieth session) .................................... 181

Appendix

S. Communication No. 884/1999, Ignatane v. Latvia

(Views adopted on 25 July 2001, seventy-second session) .................................. 191

T. Communication No. 930/2000, Winata v. Australia

(Views adopted on 26 July 2001, seventy-second session) .................................. 199

Appendix

XI. DECISIONS OF THE HUMAN RIGHTS COMMITTEE DECLARING

COMMUNICATIONS INADMISSIBLE UNDER THE OPTIONAL

PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL

AND POLITICAL RIGHTS ....................................................................................... 213

A. Communication No. 762/1997, Jensen v. Australia

(Decision adopted on 22 March 2001, seventy-first session) ................................ 213

B. Communication No. 787/1997, Gobin v. Mauritius

(Decision adopted on 16 July 2001, seventy-second session) ............................... 222

Appendix

C. Communication No. 791/1997, Singh v. New Zealand

(Decision adopted on 12 July 2001, seventy-second session) ............................... 228

D. Communication No. 808/1998, Rogl v. Germany

(Decision adopted on 25 October 2000, seventieth session) ................................ 241

E. Communication No. 822/1998, Vakoumé v. France

(Decision adopted on 31 October 2000, seventieth session) ................................ 249

F. Communication No. 831/1998, Meiers v. France

(Decision adopted on 16 July 2001, seventy-second session) ............................... 255

CONTENTS (continued)

Page

Annexes

XI. (cont'd)

G. Communication No. 832/1998, Walravens v. Australia

(Decision adopted on 25 July 2001, seventy-second session) ............................... 260

Appendix

H. Communication No. 834/1998, Kehler v. Germany

(Decision adopted on 22 March 2001, seventy-first session) ................................ 266

I. Communication No. 866/1999, Torregrosa Lafuente et al. v. Spain

(Decision adopted on 16 July 2001, seventy-second session) ............................... 270

Appendix

J. Communication No. 905/2000, Asensio López v. Spain

(Decision adopted on 23 July 2001, seventy-second session) ............................... 277

K. Communication No. 935/2000, Mahmoud v. Slovakia

(Decision adopted on 23 July 2001, seventy-second session) ............................... 281

L. Communication No. 947/2000, Hart v. Australia

(Decision adopted on 25 October 2000, seventieth session) ................................ 287

M. Communication No. 948/2000, Devgan v. Canada

(Decision adopted on 30 October 2000, seventieth session) ................................ 291

N. Communication No. 949/2000, Keshavjee v. Canada

(Decision adopted on 2 November 2000, seventieth session) ............................... 294

O. Communication No. 952/2000, Parun and Bulmer v. New Zealand

(Decision adopted on 22 March 2001, seventy-first session) ................................ 297

P. Communication No. 963/2001, Uebergang v. Australia

(Decision adopted on 22 March 2001, seventy-first session) ................................ 300

Q. Communication No. 991/2001, Neremberg v. Germany

(Decision adopted on 27 July 2001, seventy-second session) ............................... 303

Annex X

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. 547/1993, Mahuika et al. v. New Zealand

(Views adopted on 27 October 2000, seventieth session)*

Submitted by: Apirana Mahuika et al. (represented by Maori Legal Service)

Alleged victims: The authors

State party: New Zealand

Date of communication: 10 December 1992 (initial submission)

Prior decisions: - Special Rapporteur's rule 91 decision, transmitted to the State party on 14 June 1993 (not issued in document form)

- CCPR/C/55/D/547/1993, decision on

admissibility, 13 October 1995

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

Meeting on 27 October 2000,

Having concluded its consideration of communication No. 574/1993 submitted to the Human Rights Committee by Apirana Mahuika 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 author 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 Apirana Mahuika and 18 other individuals, belonging to the Maori people of New Zealand. They claim to be victims of violations by New Zealand of articles 1, 2, 16, 18, 26 and 27 of the International Covenant on Civil and Political Rights. They are represented by counsel. The Covenant entered into force for New Zealand on 28 March 1979, and the Optional Protocol on 26 August 1989.

2. At its fifty-fifth session, the Human Rights Committee considered the admissibility of the communication and found that the requirements under article 5, paragraph 2, of the Optional Protocol did not preclude it from considering the communication. However, the Committee declared inadmissible the authors' claims under articles 16, 18 and 26 for failure to substantiate, for purposes of admissibility, that their rights under these articles were violated.

3. When declaring the authors' remaining claims admissible insofar as they might raise issues under articles 14 (1) and 27 in conjunction with article 1, the Committee noted that only the consideration of the merits of the case would enable the Committee to determine the relevance of article 1 to the authors' claims under article 27.

4. In their submission on admissibility, both parties commented extensively on the merits of the claims before the Committee. After the communication was declared admissible, the State party presented additional observations, to which the authors did not comment.

The factual background

5.1 The Maori people of New Zealand number approximately 500,000, 70 per cent of whom are affiliated to one or more of 81 iwi. The authors belong to seven distinct iwi (including two of the largest and in total comprising more than 140,000 Maori) and claim to represent these. In 1840, Maori and the predecessor of the New Zealand Government, the British Crown, signed the Treaty of Waitangi, which affirmed the rights of Maori, including their right to self‑determination and the right to control tribal fisheries. In the second article of the Treaty, the Crown guarantees to Maori:

"The full exclusive and undisturbed possession of their lands, forests, fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession..."

The Treaty of Waitangi is not enforceable in New Zealand law except insofar as it is given force of law in whole or in part by Parliament in legislation. However, it imposes obligations on the Crown and claims under the Treaty can be investigated by the Waitangi Tribunal.

5.2 No attempt was made to determine the extent of the fisheries until the introduction of the Quota Management System in the 1980s. That system, which constitutes the primary mechanism for the conservation of New Zealand's fisheries resources and for the regulation of commercial fishing in New Zealand, allocates permanent, transferable, property rights in quota for each commercial species within the system.

5.3 The New Zealand fishing industry had seen a dramatic growth in the early 1960s with the expansion of an exclusive fisheries zone of nine, and later twelve miles. At that time, all New Zealanders, including Maori, could apply for and be granted a commercial fishing permit; the majority of commercial fishers were not Maori, and of those who were, the majority were part-time fishers. By the early 1980s, inshore fisheries were over-exploited and the Government placed a moratorium on the issue of new permits and removed part-time fishers from the industry. This measure had the unintended effect of removing many of the Maori fishers from the commercial industry. Since the efforts to manage the commercial fishery fell short of what was needed, in 1986 the Government amended the existing Fisheries Act and introduced a quota management system for the commercial use and exploitation of the country's fisheries. Section 88 (2) of the Fisheries Act provides "that nothing in this Act shall affect any Maori fishing rights". In 1987, the Maori tribes filed an application with the High Court of New Zealand, claiming that the implementation of the quota system would affect their tribal Treaty rights contrary to section 88 (2) of the Fisheries Act, and obtained interim injunctions against the Government.

5.4 In 1988, the Government started negotiations with Maori, who were represented by four representatives. The Maori representatives were given a mandate to negotiate to obtain 50 per cent of all New Zealand commercial fisheries. In 1989, after negotiation and as an interim measure, Maori agreed to the introduction of the Maori Fisheries Act 1989, which provided for the immediate transfer of 10 per cent of all quota to a Maori Fisheries Commission which would administer the resource on behalf of the tribes. This allowed the introduction of the quota system to go ahead as scheduled. Under the Act, Maori can also apply to manage the fishery in areas which had customarily been of special significance to a tribe or sub-tribe, either as a source of food or for spiritual reasons.

5.5 Although the Maori Fisheries Act 1989 was understood as an interim measure only, there were limited opportunities to purchase any more significant quantities of quota on the market. In February 1992, Maori became aware that Sealords, the largest fishing company in Australia and New Zealand was likely to be publicly floated at some time during that year. The Maori Fisheries Negotiators and the Maori Fisheries Commission approached the Government with a proposition that the Government provide funding for the purchase of Sealords as part of a settlement of Treaty claims to Fisheries. Initially the Government refused, but following the Waitangi Tribunal report of August 1992 on the Ngai Tahu Sea Fishing, in which the Tribunal found that Ngai Tahu, the largest tribe from the South Island of New Zealand, had a development right to a reasonable share of deep water fisheries, the Government decided to enter into negotiations. These negotiations led on 27 August 1992 to the signing of a Memorandum of Understanding between the Government and the Maori negotiators.

5.6 Pursuant to this Memorandum, the Government would provide Maori with funds required to purchase 50 per cent of the major New Zealand fishing company, Sealords, which owned 26 per cent of the then available quota. In return, Maori would withdraw all pending litigation and support the repeal of section 88 (2) of the Fisheries Act as well as an amendment to the Treaty of Waitangi Act 1975, to exclude from the Waitangi Tribunal's jurisdiction claims relating to commercial fishing. The Crown also agreed to allocate 20 per cent of quota issued for new species brought within the Quota Management System to the Maori Fisheries Commission, and to ensure that Maori would be able to participate in "any relevant statutory fishing management and enhancement policy bodies." In addition, in relation to non-commercial fisheries, the Crown agreed to empower the making of regulations, after consultation with Maori, recognizing and providing for customary food gathering and the special relationship between Maori and places of customary food gathering importance.

5.7 The Maori negotiators sought a mandate from Maori for the deal outlined in the memorandum of understanding. The memorandum and its implications were debated at a national hui and at hui at 23 marae throughout the country. The Maori negotiators' report showed that 50 iwi comprising 208,681 Maori, supported the settlement. On the basis of this report, the Government was satisfied that a mandate for a settlement had been given and on 23 September 1992, a Deed of Settlement was executed by the New Zealand Government and Maori representatives. The Deed implements the Memorandum of Understanding and concerns not only sea fisheries but all freshwater and inland fisheries as well. Pursuant to the Deed, the Government pays the Maori tribes a total of NZ$ 150,000,000 to develop their fishing industry and gives the Maori 20 per cent of new quota for species. The Maori fishing rights will no longer be enforceable in court and will be replaced by regulations. Paragraph 5.1 of the Deed reads:

"Maori agree that this Settlement Deed, and the settlement it evidences, shall satisfy all claims, current and future, in respect of, and shall discharge and extinguish, all commercial fishing rights and interests of Maori whether in respect of sea, coastal or inland fisheries (including any commercial aspect of traditional fishing rights and interests), whether arising by statute, common law (including customary law and aboriginal title), the Treaty of Waitangi, or otherwise, and whether or not such rights or interests have been the subject of recommendation or adjudication by the Courts or the Waitangi Tribunal."

Paragraph 5.2 reads:

"The Crown and Maori agree that in respect of all fishing rights and interests of Maori other than commercial fishing rights and interests their status changes so that they no longer give rise to rights in Maori or obligations on the Crown having legal effect (as would make them enforceable in civil proceedings or afford defences in criminal, regulatory or other proceedings). Nor will they have legislative recognition. Such rights and interests are not extinguished by this Settlement Deed and the settlement it evidences. They continue to be subject to the principles of the Treaty of Waitangi and where appropriate give rise to Treaty obligations on the Crown. Such matters may also be the subject of requests by Maori to the Government or initiatives by Government in consultation with Maori to develop policies to help recognize use and management practices of Maori in the exercise of their traditional rights."

The Deed recorded that the name of the Maori Fisheries Commission would be changed to the "Treaty of Waitangi Fisheries Commission", and that the Commission would be accountable to Maori as well as to the Crown in order to give Maori better control of their fisheries guaranteed by the Treaty of Waitangi.

5.8 According to the authors the contents of the Memorandum of Understanding were not always adequately disclosed or explained to tribes and sub-tribes. In some cases, therefore, informed decision-making on the proposals contained in the Memorandum of understanding was seriously inhibited. The authors emphasize that while some of the Hui were supportive of the proposed Sealords deal, a significant number of tribes and sub-tribes either opposed the deal completely or were prepared to give it conditional support only. The authors further note that the Maori negotiators have been at pains to make clear that they had no authority and did not purport to represent individual tribes and sub-tribes in relation to any aspect of the Sealords deal, including the conclusion and signing of the Deed of Settlement.

5.9 The Deed was signed by 110 signatories. Among the signatories were the 8 Maori Fisheries Negotiators (the four representatives and their alternates), two of whom represented pan-Maori organizations; 31 plaintiffs in proceedings against the Crown relating to fishing rights, including representatives of 11 iwi; 43 signatories representing 17 iwi; and 28 signatories who signed the Deed later and who represent 9 iwi. The authors observe that one of the difficulties of ascertaining the precise number of tribes who signed the Deed of Settlement relates to verification of authority to sign on behalf of the tribes, and claim that it is apparent that a number of signatories did not possess such authority or that there was doubt as to whether they possessed such authority. The authors note that tribes claiming major commercial fisheries resources, were not among the signatories.

5.10 Following the signing of the Deed of Settlement, the authors and others initiated legal proceedings in the High Court of New Zealand, seeking an interim order to prevent the Government from implementing the Deed by legislation. They argued inter alia that the Government's actions amounted to a breach of the New Zealand Bill of Rights Act 1990. The application was denied on 12 October 1992 and the authors appealed by way of interlocutory application to the Court of Appeal. On 3 November 1992, the Court of Appeal held that it was unable to grant the relief sought on the grounds that the Courts could not interfere in Parliamentary proceedings and that no issue under the Bill of Rights had arisen at that time.

5.11 Claims were then brought to the Waitangi Tribunal, which issued its report on 6 November 1992. The report concluded that the settlement was not contrary to the Treaty except for some aspects which could be rectified in the anticipated legislation. In this respect, the Waitangi Tribunal considered that the proposed extinguishment and/or abrogation of Treaty interests in commercial and non-commercial fisheries was not consistent with the Treaty of Waitangi or with the Government's fiduciary responsibilities. The Tribunal recommended to the Government that the legislation make no provision for the extinguishment of interests in commercial fisheries and that the legislation in fact affirm those interests and acknowledge that they have been satisfied, that fishery regulations and policies be reviewable in the courts against the Treaty's principles, and that the courts be empowered to have regard to the settlement in the event of future claims affecting commercial fish management laws.

5.12 On 3 December 1992, the Treaty of Waitangi (Fisheries Claims) Settlement Bill 1992 was introduced. Because of the time constraints involved in securing the Sealords bid, the Bill was not referred to the competent Select Committee for hearing, but immediately presented and discussed in Parliament. The Bill became law on 14 December 1992. It is recorded in the preamble to the Act that:

"The implementation of the Deed through legislation and the continuing relationship between the Crown and Maori would constitute a full and final settlement of all Maori claims to commercial fishing rights and would change the status of non-commercial fishing rights so that they no longer give rise to rights in Maori or obligations on the Crown having legal effect but would continue to be subject to the principles of the Treaty of Waitangi and give rise to Treaty obligations on the Crown."

The Act provides inter alia for the payment of NZ$ 150,000,000 to Maori. The Act also states in section 9, that "all claims (current and future) by Maori in respect of commercial fishing ... are hereby finally settled" and accordingly:

"The obligations of the Crown to Maori in respect of commercial fishing are hereby fulfilled, satisfied, and discharged; and no court or tribunal shall have jurisdiction to inquire into the validity of such claims, the existence of rights and interests of Maori in commercial fishing, or the quantification thereof, ..." "All claims (current and future) in respect of, or directly or indirectly based on, rights and interests of Maori in commercial fishing are hereby fully and finally settled, satisfied and discharged."

With respect to the effect of the settlement on non-commercial Maori fishing rights and interests, it is declared that these shall continue to give rise to Treaty obligations on the Crown and that regulations shall be made to recognize and provide for customary food gathering by Maori. The rights or interests of Maori in non-commercial fishing giving rise to such claims shall no longer have legal effect and accordingly are not enforceable in civil proceedings and shall not provide a defence to any criminal, regulatory or other proceeding, except to the extent that such rights or interests are provided for in regulations. According to the Act, the Maori Fisheries Commission was renamed to Treaty of Waitangi Fisheries Commission, and its membership expanded from seven to thirteen members. Its functions were also expanded. In particular, the Commission now has the primary role in safeguarding Maori interests in commercial fisheries.

5.13 The joint venture bid for Sealords was successful. After consultation with Maori, new Commissioners were appointed to the Treaty of Waitangi Fisheries Commission. Since then, the value of the Maori stake in commercial fishing has grown rapidly. In 1996, its net assets had increased to a book value of 374 million dollars. In addition to its 50 per cent stake in Sealords, the Commission now controls also Moana Pacific Fisheries Limited (the biggest in-shore fishing company in New Zealand), Te Waka Huia Limited, Pacific Marine Farms Limited and Chatham Processing Limited. The Commission has disbursed substantial assistance in the form of discounted annual leases of quota, educational scholarships and assistance to Maori input into the development of a customary fishing regime. Customary fishing regulations have been elaborated by the Crown in consultation with Maori.

The complaint

6.1 The authors claim that the Treaty of Waitangi (Fisheries Claims) Settlement Act confiscates their fishing resources, denies them their right to freely determine their political status and interferes with their right to freely pursue their economic, social and cultural development. It is submitted that the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 is in breach of the State party's obligations under the Treaty of Waitangi. In this context, the authors claim that the right to self-determination under article 1 of the Covenant is only effective when people have access to and control over their resources.

6.2 The authors claim that the Government's actions are threatening their way of life and the culture of their tribes, in violation of article 27 of the Covenant. They submit that fishing is one of the main elements of their traditional culture, that they have present-day fishing interests and the strong desire to manifest their culture through fishing to the fullest extent of their traditional territories. They further submit that their traditional culture comprises commercial elements and does not distinguish clearly between commercial and other fishing. They claim that the new legislation removes their right to pursue traditional fishing other than in the limited sense preserved by the law and that the commercial aspect of fishing is being denied to them in exchange for a share in fishing quota. In this connection, the authors refer to the Committee's Views in communication No. 167/1984 (Ominayak v. Canada), where it was recognized that "the rights protected by article 27 include the right of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong."

6.3 The authors recall that the Quota Management System was found by the Waitangi Tribunal to be in conflict with the Treaty of Waitangi since it gave exclusive possession of property rights in fishing to non-Maori, and that the New Zealand High Court and Court of Appeal had in several decisions between 1987 and 1990 restrained the further implementation of the QMS on the basis that it was "clearly arguable" that the QMS unlawfully breached Maori fishing rights, protected by section 88 (2) of the Fisheries Act 1983. With the enactment of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, QMS has been validated for all purposes. They state that by repealing section 88 (2) of the Fisheries Act 1983, Maori fishing rights are no longer protected.

6.4 Some of the authors claim that no Notices of Discontinuance were signed on behalf of their tribes or sub-tribes in respect of fisheries claims that were pending before the courts and that these proceedings were statutorily discontinued without their tribes' or sub-tribes' consent by section 11(2) (g) and (i) of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. This is said to constitute a violation of their right under article 14 (1) of the Covenant, to have access to court for the determination of their rights and obligations in a suit at law. In this context, the authors submit that Maori fishing rights are clearly "rights and obligations in a suit at law" within the meaning of article 14 (1) of the Covenant because they are proprietary in nature. Prior to the enactment of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, Maori filed numerous fishing claims in the courts. The authors submit that article 14 (1) of the Covenant guarantees the authors, and their tribes or sub-tribes, the right to have these disputes

determined by a tribunal which complies with all of the requirements of article 14. In this context, it is submitted that although customary and aboriginal rights or interests can still be considered by the Waitangi Tribunal in the light of the principles of the Treaty of Waitangi, the Waitangi Tribunal's powers remain recommendatory only.

6.5 The authors submit that prior to the enactment of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, they had a right of access to a court or tribunal based on section 88 of the Fisheries Act to protect, determine the nature and extent, and to enforce their common law and Treaty of Waitangi fishing rights or interests. The repeal of this section by the 1992 Act interferes with and curtails their right to a fair and public hearing of their rights and obligations in a suit at law as guaranteed by article 14 (1) of the Covenant, because there is no longer any statutory framework within which these rights or interests can be litigated.

The State party's observations

7.1 With regard to the authors' claim under article 27, the State party accepts that the enjoyment of Maori culture encompasses the right to engage in fishing activities and it accepts that it has positive obligations to ensure that these rights are recognized. The Fisheries Settlement, it submits, has achieved this. According to the State party, the right to revenue through quota, together with Maori participation in the Sealords deal, is the modern day embodiment of Maori claims to the commercial fishery. The outcome of the Fisheries Settlement is that Maori, who constitute approximately 15 per cent of the population of New Zealand, now have effective control of New Zealand's largest deep water fishing fleet and over 40 per cent of New Zealand's fishing quota. The Settlement is the vehicle that has ensured Maori participation in the commercial fishing industry - on terms set by Maori in a company in which Maori exercise effective control through their shareholding and their representatives on the Board of Directors. According to the State party, the Fisheries Settlement has placed Maori in an unprecedented position to expand their presence in the market through the acquisition of further quota and fishing assets, as well as through diversification in international catching, processing and marketing. This is a route that the Treaty of Waitangi Fisheries Commission and its companies, as well as individual tribes, are increasingly following. The Fisheries Settlement also specifically protects Maori non-commercial fishing rights and statutory regulations have been developed to ensure that provision is made for customary food gathering and that the special relationship between Maori and places of importance for customary food gathering is recognized.

7.2 Further, the State party notes that rights of minorities contained in article 27 are not unlimited. They may be subject to reasonable regulation and other controls or limitations, provided that these measures have a reasonable and objective justification, are consistent with the other provisions of the Covenant and do not amount to a denial of the right. In the case of the Fisheries Settlement the State party had a number of important obligations to reconcile. It was necessary to balance the concerns of individual dissentients against its obligations to Maori as a whole to secure a resolution to fisheries claims and the need to introduce measures to ensure the sustainability of the resource.

7.3 Moreover, the State party emphasizes that it is evident from the Memorandum of Understanding that it was the common understanding of the Government and the Maori Fisheries Negotiators that the settlement was conditional on confirmation of the Negotiators' mandate to act on behalf of all Maori. Subject to this confirmation, the proposal stipulated that the Sealords purchase would result in the settlement of all Maori rights and interests in New Zealand's commercial fisheries, that the settlement would include the introduction of legislation to repeal section 88 (2) of the Fisheries Act 1983 and all other legislation conferring legal entitlements to all Maori fisheries rights and interests, the discontinuance of all litigation in pursuit of Maori rights or interests in commercial fishing and Maori endorsement of the Quota Management System. The State party refers to the Court of Appeal's decision in Te Runanga o Wharekauri Rekohu v. Attorney-General, in which it was found that the proposal negotiated between the Government and the Maori Fisheries Negotiators was consistent with the Government's duty under the Treaty of Waitangi and that a failure to take the opportunity presented by the availability of Sealords for purchase would have been inconsistent with that duty. The State party further refers to similar sentiments expressed by the Waitangi Tribunal.

7.4 As regards the authors' statement that the settlement received only limited support from Maori, the State party recalls the process of consultation pursued by the Maori negotiators following the initialling of the memorandum of understanding, on the basis of which the Maori negotiators and subsequently the Crown concluded that there was a sufficient mandate for the negotiation and execution of the Deed of Settlement. The State party refers to the opinion of the Waitangi Tribunal that the report of the Maori negotiators conveyed the impression that there was indeed a mandate for the settlement, provided that the Treaty itself was not compromised, and that in the light of the report it was reasonable for the Crown to believe it was justified in proceeding. The State party also refers to the opinion of the Waitangi Tribunal, "that the settlement should proceed despite the inevitable compromise to the independent rangatiratanga of the dissentients ... On the basis then that the settlement is to introduce new national policy for the benefit of tribes, to perfect rights rather than abrogate them and with protection for the customary position, we consider this settlement can be dealt with not just at an iwi level, but a pan iwi level, where the actual consent of each iwi is not a pre-requisite, and a general consensus can be relied upon". The State party emphasizes that responsibility for satisfying the Government that the proposal had the support of Maori lay with the Negotiators, and that the process of internal decision making within Maori was not a matter of direct concern to the Government which was entitled to rely on the report of the Negotiators. The State party further refers to the Committee's decision in Grand Chief Donald Marshall et al. v. Canada where the Human Rights Committee rejected a claim that all tribal groups should have a right to participate in consultations on aboriginal matters.

7.5 As to the authors' criticism of the Quota Management System, the State party states that the system was introduced out of the need for effective measures to conserve the depleted inshore fishery. In this context, the State party submits that it had a duty to all New Zealanders to conserve and manage the resource for future generations. The State party recalls that the decisions by the Waitangi Tribunal and the Court of Appeal, while criticising the initial implementation, recognized that the purpose and intention of the Quota Management System

was not necessarily in conflict with the principles and terms of the Treaty of Waitangi. The State party emphasizes that while the Quota Management System imposed a new regime which changed the nature of the Maori commercial fishing interest, this was based on the reasonable and objective needs of overall sustainable management.

7.6 With regard to the Committee's statement when declaring the communication admissible that only at the determination of the merits of the case will the Committee be able to determine the relevance of article 1 to the authors' claims under article 27, the State party submits that it would be most concerned if the Committee were to depart from the position which has been accepted by States parties to the Covenant and by the Committee itself that the Committee has no jurisdiction to consider claims regarding the rights contained in article 1. Those rights have long been recognized as collective rights. Therefore, they fall outside the Committee's mandate to consider complaints by individuals, and it is not within the ambit of the Optional Protocol procedures for individuals purporting to represent Maori to raise alleged violations of the collective rights contained in article 1. The State party further argues that the rights in article 1 attach to "peoples" of a state in their entirety, not to minorities, whether indigenous or not, within the borders of an independent and democratic state. Moreover, the State party challenges the authors' authority to speak on behalf of the majority of the members of their tribes.

7.7 With respect to the authors' claim that they are victims of a violation of article 14 (1) of the Covenant, the State party submits that the authors' complaint is fundamentally misconceived and amounts to an attempt to import into the article a content which is not consistent with the language of the article and which was not intended at the time the Covenant was drafted. According to the State party, article 14 does not provide a general right of access to courts in the absence of rights and jurisdiction recognized by law. Rather article 14 sets out procedural standards which must be upheld to ensure the proper administration of justice. The requirements of article 14 do not arise in a vacuum. The State party submits that the introductory words of the article make it clear that the guarantee of those procedural standards arises only when criminal or civil proceedings are in prospect; that is, when there is a legal cause of action to be tried in a court of competent jurisdiction. The consequence of the position put forward by the authors would be that a State's legislature could not determine the jurisdiction of its Courts and the Committee would be involved in making substantive decisions on the justifiability of rights in domestic legal systems which extend far beyond the guarantees in the Covenant.

7.8 The State party adds that the authors' complaint seeks to obscure the central element of the 1992 Settlement. In the State party's opinion, the authors' argument that the Settlement extinguished a right to go to court in respect of pre-existing claims ignores the fact that the Settlement in fact settled those claims by transforming them into a guaranteed entitlement to participate in the commercial fisheries. Since those claims had been settled, by definition there could no longer be a right to go to court to seek a further expansion of those rights. The State party explains, however, that while any pre-existing claims can no longer found a cause of action, Maori fisheries issues do remain within the jurisdiction of the courts. Decisions of the Treaty of Waitangi Fisheries Commission regarding the allocation of the benefits of the Settlement are subject to review by the courts in the same manner as decisions of any other statutory body. Likewise the regulations regarding customary fishing rights and decisions taken

pursuant to these regulations are reviewable by the courts and the Waitangi Tribunal. Recent

litigation before the New Zealand courts, including that before the Court of Appeal regarding the extent to which urban Maori who are unaffiliated with iwi structures have the right to benefit from the Settlement and regarding a proposed allocation of benefit of the Settlement, demonstrate conclusively that access to the courts remains. In addition, Maori who are engaged in fishing activities have exactly the same rights as any other New Zealander to go to court to challenge decisions of the Government which affect those rights or to seek protection of those rights from encroachment by others.

7.9 In conclusion, the State party asserts that the Fisheries Settlement has not breached the rights of the authors, or of any other Maori, under the Covenant. On the contrary, the State party submits that the Settlement should be regarded as one of the most positive achievements in recent years in securing the recognition of Maori rights in conformity with the principles of the Treaty of Waitangi. The State party states that it is committed to resolve and settle Maori grievances in an honourable and equitable manner. It acknowledges that any such settlements, which require a degree of compromise and accommodation on both sides, are unlikely to attract unanimous support from Maori. In this context, it states that the Settlement did not have unanimous support from non-Maori New Zealanders either. Indeed, it was evident from public reaction at the time that a significant proportion of non-Maori New Zealanders were opposed to the Settlement and did not accept that Maori should be accorded distinctive rights to the New Zealand fisheries. However, the State party observes that it cannot allow itself to be paralysed by a lack of unanimity, and it will not use the withholding of agreement by some dissentients, Maori or non-Maori, as an excuse for failing to take positive action to redress Maori grievances in circumstances where such action has the clear support of the majority of interested Maori. The State party therefore submits that the Committee should dismiss the authors' complaints.

Authors' comments on the State party's submission

8.1 The authors argue that article 27 of the Covenant requires the Government of New Zealand to adduce convincing and cogent evidence which establishes the necessity and proportionality of its interferences with the rights and freedoms of the authors, and their tribes or sub-tribes, as guaranteed by article 27. The authors submit that the State party has not advanced any reasons why, nor provided any empirical evidence to substantiate that sis 9, 10, 11, 33, 34, 37 and 40 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 are "reasonable or necessary" to achieve the objectives of ensuring proper management of fisheries, including meeting international obligations for the conservation and management of marine living resources. The authors further submit that "if the Government of New Zealand wishes to arrogate to itself the power to regulate Maori fisheries without the consent of the authors, and their tribes or sub tribes who are recognized as having rangatiratanga and dominion over, and property interests in, those fisheries pursuant to the Treaty of Waitangi, article 27 of the Covenant requires the Government of New Zealand to adduce convincing and cogent evidence which established the necessity and proportionality of its interferences with the rights and freedoms of the authors, and their tribes or sub-tribes, as guaranteed by article 27." The authors submit that the State party has not adduced any such evidence.

8.2 Furthermore, the authors submit that article 27 of the Covenant requires the State party to take positive steps to assist Maori to enjoy their own culture. They argue that, far from fulfilling this aspect of its obligations under article 27 of the Covenant, the State party has, by its enactment of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, seriously interfered with the enjoyment by the authors, and their tribes or sub-tribes, of their rights or freedoms under article 27. The authors also submit that article 27 of the Covenant requires the Government of New Zealand to implement the Treaty of Waitangi. The authors emphasize that fishing is a fundamental aspect of Maori culture and religion. As an articulation of this close relationship they refer to the following passage in the Muriwhenua Fishing Report by the Waitangi Tribunal.

"To understand the significance of such key Treaty words as 'taonga' and 'tino rangatiratanga' each must be seen within the context of Maori cultural values. In the Maori idiom 'taonga' in relation to fisheries equates to a resource, to a source of food, an occupation, a source of goods for gift-exchange, and is a part of the complex relationship between Maori and their ancestral lands and water. The fisheries taonga contains a vision stretching back into the past, and encompasses 1,000 years of history and legend, incorporates the mythological significance of the gods and taniwha, and of the tipuna and kaitiaki. The taonga endures through fluctuations in the occupation of tribal areas and the possession of resources over periods of time, blending into one, the whole of the land, waters, sky, animals, plants and the cosmos itself, a holistic body encompassing living and non-living elements.

This taonga requires particular resource, health and fishing practices and a sense of inherited guardianship of resources. When areas of ancestral land and adjacent fisheries are abused through over-exploitation or pollution, the tangata whenua and their values are offended. The affront is felt by present-day kaitiaki (guardians) not just for themselves but for their tipuna in the past.

The Maori 'taonga' in terms of fisheries has a depth and a breadth which goes beyond quantitative and material questions of catch volumes and cash incomes. It encompasses a deep sense of conservation and responsibility to the future, which colours their thinking, attitude and behaviour towards their fisheries.

The fisheries taonga includes connections between the individual and tribe, and fish and fishing grounds in the sense not just of tenure, or 'belonging', but also of personal or tribal identity, blood and genealogy, and of spirit. This means that a 'hurt' to the environment or to the fisheries may be felt personally by a Maori person or tribe, and may hurt not only the physical being, but also the prestige, the emotions and the mana.

The fisheries taonga, like other taonga, is a manifestation of a complex Maori physico‑spiritual conception of life and life's forces. It contains economic benefits, but it is also a giver of personal identity, a symbol of social stability, and a source of emotional and spiritual strength.

This vision provided the mauri (life-force) which ensured the continued survival of the iwi Maori. Maori fisheries include, but are not limited to a narrow physical view of fisheries, fish, fishing ground, fishing methods and the sale of those resources, for monetary gain; but they also embrace much deeper dimensions in the Maori mind."

8.3 In this context, the authors refer to the Committee's General Comment on article 27 and submit that article 27 of the Covenant clearly protects Maori enjoyment of their fishing rights. They contest the State party's position that the right of Maori to engage in fisheries activities has been "secured" by the provisions of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and the Maori Fisheries Act 1989. Indeed, they claim that these rights have been effectively extinguished and/or abrogated and that the benefits provided to Maori under the legislation do not constitute lawful satisfaction. It is submitted that the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 imposes an artificial division upon their fishing rights or interests in their fisheries without regard to the sacred nature of the relationship which exists between the authors (both personal and tribal) and their fisheries; it effectively curtails the ability of the authors, and their tribes or sub-tribes, to protect their fisheries for future generations; it extinguishes and/or effectively abrogates their common law and Treaty of Waitangi rights or interests; it affects their ability to harvest and manage their fisheries in accordance with their cultural and religious customs and traditions; and it imposes a regime which relocates regulatory power over Maori fisheries in the hands of the Director-General of Fisheries.

8.4 They also argue that the Waitangi Tribunal clearly expressed the view that the acceptability of any "inevitable compromise to the independent rangatiratanga of the dissentients" was predicated upon the modification of the implementing legislation by the Government of New Zealand in accordance with the Waitangi Tribunal's recommendations. The authors further argue that their case is distinguishable from the case of Grand Chief Donald Marshall et al. v. Canada, since that case did not concern the necessity of obtaining a minority group's consent to the extinguishment and/or effective abrogation of its property rights and denial of access to the courts to enforce those rights.

8.5 With respect to the discontinuance of the legal proceedings in the Court, five authors argue that the notices of discontinuance signed on behalf of their tribe were not signed by those who had the authority to do so. Another five authors state that no notice of discontinuance was signed on behalf of their tribes.

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 observes that the Optional Protocol provides a procedure under which individuals can claim that their individual rights have been violated. These rights are set out in part III of the Covenant, articles 6 to 27, inclusive. As shown by the Committee's

jurisprudence, there is no objection to a group of individuals, who claim to be commonly

affected, to submit a communication about alleged breaches of these rights. Furthermore, the provisions of article 1 may be relevant in the interpretation of other rights protected by the Covenant, in particular article 27.

9.3 The first issue before the Committee therefore is whether the authors' rights under article 27 of the Covenant have been violated by the Fisheries Settlement, as reflected in the Deed of Settlement and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. It is undisputed that the authors are members of a minority within the meaning of article 27 of the Covenant; it is further undisputed that the use and control of fisheries is an essential element of their culture. In this context, the Committee recalls that economic activities may come within the ambit of article 27, if they are an essential element of the culture of a community. The recognition of Maori rights in respect of fisheries by the Treaty of Waitangi confirms that the exercise of these rights is a significant part of Maori culture. However, the compatibility of the 1992 Act with the treaty of Waitangi is not a matter for the Committee to determine.

9.4 The right to enjoy one's culture cannot be determined in abstracto but has to be placed in context. In particular, article 27 does not only protect traditional means of livelihood of minorities, but allows also for adaptation of those means to the modern way of life and ensuing technology. In this case the legislation introduced by the State affects, in various ways, the possibilities for Maori to engage in commercial and non-commercial fishing. The question is whether this constitutes a denial of rights. On an earlier occasion, the Committee has considered that:

"A State may understandably wish to encourage development or allow economic activity by enterprises. The scope of its freedom to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27. Article 27 requires that a member of a minority shall not be denied his right to enjoy his own culture. Thus, measures whose impact amount to a denial of the right will not be compatible with the obligations under article 27. However, measures that have a certain limited impact on the way of life of persons belonging to a minority will not necessarily amount to a denial of the right under article 27."

9.5 The Committee recalls its general comment on article 27, according to which, especially in the case of indigenous peoples, the enjoyment of the right to one's own culture may require positive legal measures of protection by a State party and measures to ensure the effective participation of members of minority communities in decisions which affect them. In its case law under the Optional Protocol, the Committee has emphasized that the acceptability of measures that affect or interfere with the culturally significant economic activities of a minority depends on whether the members of the minority in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy. The Committee acknowledges that the Treaty of Waitangi (Fisheries Settlement) Act 1992 and its mechanisms limit the rights of the authors to enjoy their own culture.

9.6 The Committee notes that the State party undertook a complicated process of consultation in order to secure broad Maori support to a nation-wide settlement and regulation of fishing activities. Maori communities and national Maori organizations were consulted and their proposals did affect the design of the arrangement. The Settlement was enacted only following the Maori representatives' report that substantial Maori support for the Settlement existed. For many Maori, the Act was an acceptable settlement of their claims. The Committee has noted the authors' claims that they and the majority of members of their tribes did not agree with the Settlement and that they claim that their rights as members of the Maori minority have been overridden. In such circumstances, where the right of individuals to enjoy their own culture is in conflict with the exercise of parallel rights by other members of the minority group, or of the minority as a whole, the Committee may consider whether the limitation in issue is in the interests of all members of the minority and whether there is reasonable and objective justification for its application to the individuals who claim to be adversely affected.

9.7 As to the effects of the agreement, the Committee notes that before the negotiations which led to the Settlement the Courts had ruled earlier that the Quota Management System was in possible infringement of Maori rights because in practice Maori had no part in it and were thus deprived of their fisheries. With the Settlement, Maori were given access to a great percentage of quota, and thus effective possession of fisheries was returned to them. In regard to commercial fisheries, the effect of the Settlement was that Maori authority and traditional methods of control as recognized in the Treaty were replaced by a new control structure, in an entity in which Maori share not only the role of safeguarding their interests in fisheries but also the effective control. In regard to non-commercial fisheries, the Crown obligations under the Treaty of Waitangi continue, and regulations are made recognising and providing for customary food gathering.

9.8 In the consultation process, special attention was paid to the cultural and religious significance of fishing for the Maori, inter alia to securing the possibility of Maori individuals and communities to engage themselves in non-commercial fishing activities. While it is a matter of concern that the settlement and its process have contributed to divisions amongst Maori, nevertheless, the Committee concludes that the State party has, by engaging itself in the process of broad consultation before proceeding to legislate, and by paying specific attention to the sustainability of Maori fishing activities, taken the necessary steps to ensure that the Fisheries Settlement and its enactment through legislation, including the Quota Management System, are compatible with article 27.

9.9 The Committee emphasizes that the State party continues to be bound by article 27 which requires that the cultural and religious significance of fishing for Maori must deserve due attention in the implementation of the Treaty of Waitangi (Fisheries Claims) Settlement Act. With reference to its earlier case law, the Committee emphasizes that in order to comply with article 27, measures affecting the economic activities of Maori must be carried out in a way that the authors continue to enjoy their culture, and profess and practice their religion in community with other members of their group. The State party is under a duty to bear this in mind in the further implementation of the Treaty of Waitangi (Fisheries Claims) Settlement Act.

9.10 The authors' complaints about the discontinuance of the proceedings in the courts concerning their claim to fisheries must be seen in the light of the above. While in the abstract it would be objectionable and in violation of the right to access to court if a State party would by law discontinue cases that are pending before the courts, in the specific circumstances of the instant case, the discontinuance occurred within the framework of a nation wide settlement of exactly those claims that were pending before the courts and that had been adjourned awaiting the outcome of negotiations. In the circumstances, the Committee finds that the discontinuance of the authors' court cases does not amount to a violation of article 14 (1) of the Covenant.

9.11 With regard to the authors' claim that the Act prevents them from bringing claims concerning the extent of their fisheries before the courts, the Committee notes that article 14 (1) encompasses the right to access to court for the determination of rights and obligations in a suit at law. In certain circumstances the failure of a State party to establish a competent court to determine rights and obligations may amount to a violation of article 14 (1). In the present case, the Act excludes the courts' jurisdiction to inquire into the validity of claims by Maori in respect to commercial fishing, because the Act is intended to settle these claims. In any event, Maori recourse to the Courts to enforce claims regarding fisheries was limited even before the 1992 Act; Maori rights in commercial fisheries were enforceable in the Courts only to the extent that section 88 (2) of the Fisheries Act expressly provided that nothing in the Act was to affect Maori fishing rights. The Committee considers that whether or not claims in respect of fishery interests could be considered to fall within the definition of a suit at law, the 1992 Act has displaced the determination of Treaty claims in respect of fisheries by its specific provisions. Other aspects of the right to fisheries, though, still give the right to access to court, for instance in respect of the allocation of quota and of the regulations governing customary fishing rights. The authors have not substantiated the claim that the enactment of the new legislative framework has barred their access to court in any matter falling within the scope of article 14, paragraph 1. Consequently, the Committee finds that the facts before it do not disclose a violation of article 14, paragraph 1.

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 reveal a breach of any of the articles of the Covenant.

[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. 675/1995, Toala et al. v. New Zealand

(Views adopted on 2 November 2000, seventieth session)*

Submitted by: Mr. Simalae Toala et al.

(represented by Ms. Olinda Woodroffe)

Alleged victim: The authors

State party: New Zealand

Date of communication: 19 October 1995 (initial submission)

Prior decisions: - Special Rapporteur's rule 91 decision

transmitted to the State party on 21 December 1995

(not issued in document form)

- CCPR/C/63/D/675/1995 ‑ decision on admissibility,

dated 10 July 1998

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

Meeting on 2 November 2000,

Having concluded its consideration of communication No. 675/1995 submitted to the Human Rights Committee by Mr. Simalae Toala et al. under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into consideration 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 Mr. Simalae Toala, Mrs. Fa'ai'u Toala, and their adopted child, Eka Toala, born in 1984, Mr. Pita Fata Misa Pitoau Tofaeono and Mrs. Anovale Tofaeono, all residing in New Zealand at the time of the communication. The authors claim to be victims of violations by New Zealand of articles 2 (1), 2 (3), 12 (4), 14 (3), 17 and 26 of the International Covenant on Civil and Political Rights. They are represented by Mrs. Olinda Woodroffe, of the New Zealand law firm, Woodroffe & Keil.

The facts submitted by the authors

2.1 The authors were all born in Western Samoa: Mr. Toala was born in 1932, Mrs. Toala in 1934, and their adopted child, Eka Toala, in 1984, Mr. Tofaeono in 1934 and Mrs. Tofaeono in 1933. At the time of the communication, the families were residing in New Zealand, where deportation orders were recently issued against them. The families went into hiding in New Zealand, so as to avoid deportation. The authors claim that they are New Zealand citizens, and that the acts of the New Zealand Government which seek to remove them from New Zealand violate the Covenant.

2.2 Mr. Toala arrived in New Zealand in January 1979, and was granted a visitor's permit. He returned to Western Samoa in July 1979. In March 1980, he was convicted of the offence of "carnal knowledge" in Western Samoa, and sentenced to two years' imprisonment. He served nine months and was then released. He again entered New Zealand in December 1986, and applied on several occasions for a permanent residence permit; his applications were denied. In March 1992, a deportation order was issued against him in New Zealand, pursuant to the provisions of the New Zealand Immigration Act of 1987 (as amended). He appealed this order in April 1992, invoking humanitarian reasons. In August 1993, his appeal was dismissed by the Removal Review Authority, and he went into hiding so as to avoid deportation.

2.3 Mrs. Toala and Eka arrived in New Zealand in June 1986 and was granted a visitor's permit which expired in September 1989. She applied several times for permanent residence status. Of her eight children seven have permanent residence status in New Zealand and some are citizens. Deportation orders were issued against her and her adopted son in April 1992. She appealed the orders in May 1992, on her own and her son's behalf, invoking humanitarian reasons. In August 1993, the appeal was dismissed by the Removal Review Authority. It is stated that Mrs. Toala has been informed that she cannot stay in New Zealand because of her husband's conviction in Western Samoa. Mrs. Toala and her son have also gone into hiding to avoid deportation.

2.4 Mr. and Mrs. Tofaeono arrived in New Zealand in May 1993, and were granted residence permits valid until June 1995. They have 10 children, five of whom are residing lawfully in New Zealand. It is stated that Mr. and Mrs. Tofaeono qualify for "family reunion" status in New Zealand but that they have been denied this status for alleged health problems. The couple has appealed the deportation order issued against them to the Removal Review Authority. Their application was declined on 28 June 1996. They returned to Western Samoa, and Mr. Tofeano died there. Mrs. Tofeano remains in Western Samoa.

2.5 The authors claim that they are New Zealand citizens pursuant to the decision of the Judicial Committee of the Privy Council in Lesa v. The Attorney-General of New Zealand [1983] 2 A.C.20. In this case, the Privy Council held that by virtue of the British Nationality and Status of Aliens (in New Zealand) Act 1928, persons born in Western Samoa between 13 May 1924 and 1 January 1949 (and their descendants) are New Zealand citizens.

2.6 It is stated that there was considerable adverse reaction in New Zealand to the Lesa judgement, which was delivered by the Privy Council in July 1982. It was estimated that some 100,000 Samoans out of a total population of 160,000 would be affected by the decision.

2.7 The response of the New Zealand Government was to negotiate a Protocol to the Treaty of Friendship between New Zealand and Western Samoa. The Protocol was ratified on 13 September 1982 by the two parties. Within one month, the New Zealand Government passed into law the Citizenship (Western Samoa) Act of 1982, which gave effect to the Protocol in New Zealand, and nullified the effect of the "Lesa" decision, except for Ms. Lesa herself and a very limited number of persons.

The complaint

3.1 The authors claim that the Citizenship (Western Samoa) Act 1982 has created a situation of mass denationalization of about 100,000 Samoans, in violation of articles 12, paragraph 4, and 26 of the Covenant, and denies them their lawful New Zealand citizenship.

3.2 The authors claim that the 1982 Protocol is void under article 53 of the Vienna Convention on the Law of Treaties, to the extent that it authorizes the enactment of the 1982 Act, because it violates a norm of jus cogens, insofar as it allows New Zealand to practice racial discrimination against Samoans.

3.3 In this context, the authors refer to statements made by the New Zealand Human Rights Commission in 1982, to the effect that "the Human Rights Commission considers that the Citizenship (Western Samoa) Bill involves the denial of basic human rights in that it seeks to deprive a particular group of New Zealanders of their citizenship on the basis that they are Polynesians of Samoan descent. ... The Bill as it stands has an unfortunate racist implication. ... There appears to be a confusion between the principle of citizenship rights, and the practical consequences of large-scale entry of people from Western Samoa ...".

3.4 The authors furthermore invoke the parliamentary debates which preceded the adoption of the 1982 Act in support of their claim that the Act has racist implications. They quote from the debates: "... We have many other citizens with dual citizenship, I would say, the greatest number being from the U.K. ... almost all the people to whom the Bill relates are nonwhites." and: "The Human Rights Commission drew attention to article 12 of the International Covenant on Civil and Political Rights. That Covenant provides that no person shall be arbitrarily deprived of the right to enter his own country. I should be surprised if New Zealand were not in breach of that right in refusing to allow free entry to New Zealand of Western Samoans deemed to be, and always to have been, New Zealand citizens."

3.5 The authors also refer to a statement of the Chief Justice of New Zealand, Justice Ryan "[The legislation] clearly discriminates against persons who were declared by the highest New Zealand Court to be citizens of New Zealand." The authors further invoke the discussion concerning New Zealand's Initial Report to the Human Rights Committee dated 11 January 1982, where the representatives of the state, in connection with the Lesa case referred, inter alia, to the Mandate created by the League of Nations. They note that it was declared that the inhabitants of mandated territories could not become citizens of the State which administered the Mandate.

3.6 The authors have close ties to New Zealand in that both families have several of their children living in New Zealand. Mr. and Mrs. Toala have eight children, seven have permanent residence status in New Zealand and some are citizens. Mr. and Mrs. Tofaeono have ten children of which five are living in New Zealand. Both are close-knit families. Counsel claims that the denial of citizenship to the authors constitutes a violation of their right to family reunification under article 17 of the Covenant.

3.7 Concerning the requirement of exhaustion of domestic remedies the authors claim that there is no remedy available in New Zealand to someone whose rights have been infringed by Statutes which violate or are said to violate the Covenant. A Statute duly enacted by Parliament cannot be declared invalid by any New Zealand Court or other tribunal. The authors refer to the New Zealand Bill of Rights Act 1990, where it is stated that "[N] o court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights), (a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or effective; or (b) Decline to apply any provisions of the enactment - by reasons only that the provisions are inconsistent with any provisions of this Bill of Rights." The authors contend that this section has been interpreted as meaning that any statute, whether enacted before or after the passage of the Bill of Rights Act 1990, shall be superior to that Act. Since there are references, in the title of the Bill of Rights Act, to "New Zealand's commitment to the International Covenant on Civil and Political Rights", any statute (whether enacted before or after the Bill of Rights Act 1990) has precedence over any Covenant protection as reflected in the Bill of Rights Act 1990.

3.8 The authors claim that since there are no domestic remedies to exhaust where an author is aggrieved by a Statute which violates the Covenant, the State party has violated article 2 (3) of the Covenant.

3.9 Furthermore, the authors claim that the fact that there is no provision for legal aid for the preparation of communications to the Human Rights Committee, under the New Zealand Legal Services Act of 1991, amounts to a violation of article 14, paragraph 3 (d), of the Covenant.

3.10 Finally, the authors request the Committee to adopt interim measures of protection so as to prevent irreparable damage, and, in particular, to request the New Zealand Government not to take any steps to deport the authors, pending the Committee's determination of the merits of the communication.

State party's comments and counsel's observations thereon

4.1 In a submission dated 6 June 1996, the State party contends that the communication should be declared inadmissible for non-exhaustion of domestic remedies. It contends that Mr. Toala, his wife and son have indicated their intention to apply to the Courts to seek judicial review of the removal orders, while the other two authors Mr. and Mrs. Tofaeono are engaged in domestic proceedings. With respect to the allegation made by the authors that there are no domestic remedies available to them in violation of the Covenant the State party contends that the reason the authors can find no remedies available for their claims is because these do not fall within the scope of the Covenant, rather than because New Zealand does not provide remedies for possible violations of the Covenant.

4.2 The State party contends that the communication should be declared inadmissible ratione temporis since the Optional Protocol came into force for New Zealand on 26 August 1989 and the events complained of by the authors occurred in 1982. It further contends that the only circumstances under which the Committee would be competent to consider this case would be if there were continuing effects, which in themselves constituted a violation of the Covenant, and the State party categorically denies that continuing effects exist.

4.3 The State party further contends that the communication should be declared inadmissible ratione materiae as incompatible with the provisions of the Covenant. With respect to the allegations under article 12, paragraph 4, of the Covenant, the State party contends that the authors' complaint is in fact a challenge to the non concession of a residence permit for the authors to stay in New Zealand and the deportation order, but instead of this what the authors have done is to challenge the 1982 Act. The State party contests that the authors have in any way been deprived of the possibility to enter their own country since they have always been Western Samoans and they have no restriction to enter Western Samoa.

4.4 With respect to the allegation of a violation of article 17 and the right to family life in the cases of Mr. and Mrs. Toala and their son, the State party notes that indeed it did take into consideration family issues, when deciding on the authors' application for residency. However, as the principal applicant was a prohibited migrant, residency was denied to the family.

4.5 With respect to the allegation of violation of article 14, paragraph 3, of the Covenant in respect of the failure of the State party to provide legal aid to pursue their claim before the Human Rights Committee, the State party notes that article 14, paragraph 3, refers to criminal charges only. Furthermore, there is no requirement under the Optional Protocol or its rules of procedure for the provision of legal aid to a communicant.

4.6 With respect to the discrimination claim on the basis of race in violation of articles 26 juncto article 2, paragraph 1, of the Covenant because the 1982 Act only applied to Western Samoans, the State party points out that the Act was enacted to resolve the anomaly in New Zealand legislation revealed by the Privy Council in the Lesa decision, related solely to individuals born in Western Samoa between 1924 and 1949. The State party argues that, had the Privy Council found that some other group of people with no genuine and effective link with New Zealand, also inadvertently been given the status of New Zealand citizens, they too would have been treated in the same manner.

5. Counsel reiterates the claims submitted in the original communication regarding denial of access to their own country, deprivation of citizenship, discrimination with regard to obtaining a possible residence permit and the denial of the right to family reunion.

The Committee's admissibility decision

6.1 At its sixty-third session, the Committee considered the admissibility of the communication.

6.2 With regard to the allegation that the authors' right under article 14, paragraph 3, had been violated since New Zealand did not make legal aid available in order to submit a communication to the Human Rights Committee, the Committee noted that article 14 refers to domestic procedures only and there is no separate provision in the Covenant or the Optional Protocol dealing with the obligation to provide legal aid to complainants under the Optional Protocol. In the instant case, the Committee considered that the authors had no claim under article 3 of the Optional Protocol, and accordingly this part of the communication was inadmissible.

6.3 The authors claimed that they were, pursuant to the Lesa ruling, New Zealand citizens and consequently, had the right to freely enter and reside in New Zealand territory, despite the 1982 Act which stripped them of their New Zealand citizenship. The legislation in question was enacted in 1982 after New Zealand had ratified the International Covenant on Civil and Political Rights, but before it ratified the Optional Protocol in 1989. The Committee considered, however, that the legislation in question may have continuing effects which in themselves could constitute a violation under article 12, paragraph 4, of the Covenant. The issue of whether these continuing effects were in violation of the Covenant was one which should be examined on the merits. The Committee considered therefore that it was not precluded ratione temporis from declaring the communication admissible.

6.4 With respect to the authors' claims under articles 17 and 26 of the Covenant, that they had a right to remain in New Zealand despite the deportation orders and a right to family reunification without discrimination, the Committee noted the State party's contention that the communication should be declared inadmissible for non exhaustion of domestic remedies. It was not apparent to the Committee that any remedies that might still be available to the authors would be effective to prevent their deportation. These claims therefore could raise issues under articles 17 and 26 of the Covenant as well as under article 23, which should be considered on the merits. They could also raise issues under article 16 of the Covenant in respect of Mrs. Toala and her son, Eka Toala since they were not treated as persons in their own right but rather as addenda to Mr. Toala who was considered a prohibited migrant, for a criminal offence in Western Samoa; these issues should be considered on the merits. The Committee did not find itself precluded from considering the communication under article 5, paragraph 2 (b), of the Optional Protocol.

6.5 The State party and the authors' counsel were requested to inform the Committee of whether any remedies that might be or have been available to the authors would have suspensive effects in respect of their deportation.

7. On 10 July 1998, the Human Rights Committee decided that the communication was admissible insofar as it appeared to raise issues under articles 12, paragraph 4, 17, 23 and 26 in respect of all the complainants and under article 16 of the Covenant in respect of Mrs. Toala and her son, Eka Toala.

State party's submission on the merits and the authors' comments thereon

8.1 By submission dated 12 February 1999 the State party submits that the authors' complaints centre on their assertion that the New Zealand Government acted arbitrarily, and improperly, contrary to the Covenant, in enacting the Citizenship (Western Samoa) Act 1982.

8.2 The State party adduces information in detail demonstrating that Western Samoa was not generally considered part of Her Majesty's dominions, and that the inhabitants of Western Samoa were in the periods in question considered not as British subjects/New Zealand citizens respectively but as possessing a special other status in conformity with the special nature of the Mandate and Trusteeship. The State party further submits that the expectation was that on and from its independence in 1962, Western Samoans possessed and should possess only the citizenship of Western Samoa, and that the legislative action taken by the New Zealand Government in 1982 (after consultation with and with the concurrence of the Government of Western Samoa) to correct the outcome of Lesa's case was directed to deal with the large and completely unexpected problem of dual nationality arising therefrom. It further maintains that its actions in that respect were based on reasonable and objective criteria, were in conformity with general international law and for a general purpose legitimate under the Covenant (including article 1 on self-determination), and thus did not constitute, as to persons affected thereby, a discrimination prohibited by the Covenant. The State party accordingly, maintains that it is not in breach of articles 26 and 2.1 of the Covenant.

8.3 As to article 12, paragraph 4, of the Covenant, the State party submits that the authors of the communication, not being New Zealand citizens, were validly subject to the provisions of New Zealand's Immigration Act 1987 under which their removal from New Zealand has been ordered, that the authors possess an entitlement to enter Western Samoa, and that they have accordingly not been arbitrarily deprived of the right to enter their own country in violation of article 12, paragraph 4.

8.4 In respect of the authors' and the Human Rights Committee's comments that the 1982 citizenship legislation of New Zealand may have "continuing effects" that could in themselves constitute a violation of article 12, paragraph 4, of the Covenant, the State party maintains its position that no such continuing effects exist and consequently this part of the communication should be declared inadmissible ratione temporis.

8.5 As to article 17 (1) of the Covenant, the State party submits that Mr. and Mrs. Toala and Eka Toala, not being New Zealand citizens, were validly subject to the provisions of the Immigration Act 1987, that their family situation was carefully and reasonably assessed by the New Zealand authorities including a competent appeal tribunal (the Removal Review Authority) which concluded that there are no sufficient grounds to countermand their removal. It submits that the removal orders in regard to the authors did not constitute either an arbitrary or an unlawful interference with the family of the Toalas contrary to article 17 (1) of the Covenant.

8.6 As to article 2 (3) of the Covenant, the State party submits that the authors of the communication have not proven their general assertion that there are no local remedies in New Zealand which can be exhausted where an author is aggrieved by a statute which violates or is alleged to violate the Covenant. In this respect, the State party refers to a series of decisions of the New Zealand Courts in which the Covenant has been invoked. It contends that the authors of the submission err in asserting in general terms that "there is no remedy available in New Zealand to someone who is aggrieved by a Statute which violates or is alleged to violate the Covenant".

8.7 The State party further notes in any event that it is not open to complainants under the Optional Protocol to assert such a proposition in the abstract, as the Optional Protocol requires complainants to show that they have been particularly and concretely affected ‑ in this instance by the absence of an effective remedy ‑ in violation of an article of the Covenant. To the extent that the authors appear to argue that they have no effective remedy against section 6 of the Citizenship (Western Samoa) Act 1982 which withheld New Zealand citizenship from the class of Western Samoans affected by it, the State party maintains that, as this measure as such did not breach any article of the Covenant, the question of the absence of an effective remedy against the operation of the section does not fall for consideration.

8.8 As to the Human Rights Committee's request that the New Zealand Government and the authors' counsel inform the Committee whether any remedies that might be or have been available to the authors would have suspensive effects in respect of their removal, the State party explains the following procedures which apply under the Immigration Act 1987 to persons who have been made the subject of a removal order. These include:

Appeal to the Removal Review Authority within 42 days of the date on which the removal order was served. An appeal to the Removal Review Authority can be lodged either on the ground that the person is not unlawfully in New Zealand, or on the basis of exceptional humanitarian circumstances. A removal order cannot be executed while an appeal to the Removal Review Authority is pending.

An appeal against the determination of the Removal Review Authority may be lodged in the High Court, only in relation to questions of law, and within 28 days after the party has been notified of the Removal Review Authority's decision. A removal order cannot be executed while such an appeal is pending.

Upon leave, a party may appeal the High Court's decision in the Court of Appeal, in respect of a point of law. The execution of a removal order is suspended while such an appeal is pending.

A party may also apply to the High Court for judicial review of the Removal Review Authority's decision. An application can be made for interim relief to suspend the execution of the removal order. There is no formal time restriction for such an application. The decision of the High Court may also be appealed in the Court of Appeal as being erroneous in point of law.

A party may also request a special direction from the Minister of Immigration. This avenue is open to complainants even when all other legal avenues have been exhausted.

8.9 As to the extent to which the authors of the communication have availed themselves of the above procedures, the State party notes that both Mr. and Mrs. Toala and their son Eka Toala appealed against removal to the Removal Review Authority. Their appeals were declined by the Removal Review Authority on 13 August 1993. Mr. and Mrs. Tofeaono both appealed against removal to the Removal Review Authority. Their appeals were declined by the Authority on 28 June 1996. Neither of the authors lodged an appeal against the Removal Review Authority decision to the High Court, nor have they lodged judicial review proceedings. In April 1995 the Tofaeono representative informed the New Zealand Immigration Service (NZIS) that a case for judicial review was being prepared. No such case was filed. Similarly, in 1993 the NZIS was notified by Mr. Toala's representative that the Toalas would be seeking judicial review of the Removal Review Authority decision. No such proceedings were lodged, and the removal orders against the Toala family were reactivated in 1994. Since the decisions of' the Removal Review Authority in 1993 and 1996 respectively, only the Toalas have made an application to the Minister of Immigration for a special direction under section 130 of the Immigration Act 1987. This application, dated 13 January 1999, seeks the cancellation of the removal orders affecting the Toalas, and the grant of permits to them, so that they may lawfully remain in New Zealand pending the outcome of their existing communication before the Human Rights Committee.

8.10 As to the comment of the Human Rights Committee that the communication may raise issues under article 16 of the Covenant in respect of Mrs. Toala and her son Eka Toala, the State party contends that a complaint as to article 16 of the Covenant has not been advanced by the authors themselves or their representatives. The State party also observes that the members of the Toala family certainly had and have a right to recognition as individuals before the law when invoking the Immigration Act, but that they chose in 1987 and again in 1989 to apply for permanent residence in New Zealand while seeking to avail themselves of the Government's Family Category residence policy as a family unit, not as individuals, thereby effectively waiving that right as a matter of choice.

8.11 The State party contends that there is no compulsion, in processes under the Immigration Act and Regulations, for applicant family members to be combined; the position is that a spouse and children can be included in an applicant's application, in which case the latter becomes the principal applicant. Mrs. Toala and Eka Toala could thus have been considered in their own right as principal applicants had they chosen to lodge separate applications. The State party explains that when a generalized application is made, the principal applicant is the person to whom the normal criteria of residence policy are applied, although all persons included in the application must meet the character and health requirements. Mr. Toala was the principal applicant in the residence application that included Mrs. Toala and Eka Toala, but did not meet character requirements. The State party submits that choices voluntarily made by the Toalas in order to gain consideration of family circumstances under the immigration legislation governed any treatment of them as a group by the New Zealand immigration authorities, and that no breach of article 16 of the Covenant in relation to them was created by action of the

New Zealand authorities. The State party further notes that removal orders were served separately on Mr. Toala, and on Mrs. Toala and son Eka, respectively. These orders were appealed separately by Mr. Toala, and by Mrs. Toala and Eka, to the Removal Review Authority. In its decision of 13 August 1993, the Authority specifically refers to Mr. Toala's case, as well as "the cases of his wife and son" having had "the fullest consideration".

9.1 In her comments counsel states that the conflict between New Zealand and the authors still stands. She contends that the bulk of the State party's submission is devoted to challenging the Privy Council's decision in Lesa v. Attorney-General of New Zealand.

9.2 Counsel reiterates the original claim that the authors are Samoan and that the Judicial Committee of the Privy Council made it clear that New Zealand is the authors' own country. She contends that when New Zealand passed a law depriving the authors of New Zealand Citizenship, it placed the authors into a category of aliens which the New Zealand Government could legitimately exclude from New Zealand. In that sense, she submits that the authors are deprived of their rights under article 12, paragraph 4, of the Covenant. Counsel states that what article 12, paragraph 4, says is that once citizenship is granted to people, they cannot be deprived of it, if depriving them of it means limiting their rights to enter their country of citizenship. That is what the New Zealand Parliament has done to many Samoan people including the authors.

9.3 With respect to the claims under articles 17, 23 and 26 counsel reiterates the allegations made in the original submission, that is to say that the authors were discriminated against because of their Polynesian origins and that the Removal Review Authority did not give due consideration to the family and humanitarian circumstances of the authors' case.

9.4 With regard to the exhaustion of domestic remedies, counsel reiterates that, since the authors' arguments against their removal are based on the invalidity of the Citizenship (Western Samoa) Act 1982, and since no judicial review of a statute is possible under New Zealand law, the remedy of judicial review is not open to the authors.

Review of admissibility

10. The Committee notes that the State party has provided information about the procedures open to the authors to seek judicial review of the decision of the Removal Review Authority. It appears that although the authors had indicated that they intended to make use of this procedure, they did not do so. The authors have not advanced reasons for their failure to pursue these remedies in respect to their claim that their removal from New Zealand would violate their rights under articles 17 and 23, and with respect to Mrs. Toala and son Eka Toala, article 16 of the Covenant. In the circumstances, the Committee considers that the authors have failed to exhaust available domestic remedies in this respect. Consequently, the Committee, in accordance with rule 93 (4) of its rules of procedure, reviews its decision on admissibility and declares this part of the communication inadmissible under article 5, paragraph 2 (b), of the Optional Protocol.

Examination of the merits

11.1 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.

11.2 With regard to the authors' claim to enter and remain in New Zealand the Committee notes that this claim depends on whether under article 12, paragraph 4, of the Covenant New Zealand is or has been at any time their own country and if so, whether they have been deprived arbitrarily of the right to enter New Zealand. In this regard, the Committee notes that none of the authors holds New Zealand nationality at present, nor do they have entitlement to that nationality under New Zealand law. It also notes that all the authors are Western Samoan citizens under the nationality law of that country, which has applied since 1959.

11.3 The Committee notes that the effect of the 1982 Lesa decision was to make four of the authors New Zealand citizens, as from the date of their birth. The fifth author Eka Toala was born in 1984, and appears not to have been affected by Lesa. The four authors who had New Zealand nationality under the Lesa decision, were by virtue of that fact entitled to enter New Zealand. When the 1982 Act took away New Zealand citizenship it removed their right to enter New Zealand as citizens. Their ability to enter New Zealand thereafter was governed by New Zealand immigration laws.

11.4 The Committee's general comment on article 12 observes that "A State party must not by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent that person from returning to his or her own country." In this case, the Committee considers that the circumstances in which the authors gained and then lost New Zealand citizenship need to be examined in the context of the issues which arise under article 12 (4).

11.5 The Committee notes that in 1982 the authors had no connection with New Zealand by reason of birth, descent from any New Zealander, ties with New Zealand or residence in New Zealand. They were unaware of any claim to New Zealand citizenship at the time of the Lesa decision and had acquired New Zealand citizenship involuntarily. It also appears that, with the exception of Mr. Toala, none of the authors had ever been in New Zealand. All these circumstances make it arguable that New Zealand did not become their "own country" by virtue of the Lesa decision. But in any event, the Committee does not consider that the removal of their New Zealand citizenship was arbitrary. In addition to the circumstances already mentioned, none of the authors had been in New Zealand between the date of the Lesa decision and the passage of the 1982 Act. They had never applied for a New Zealand passport or claimed to exercise any rights as New Zealand citizens. The Committee is therefore of the view that article 12 (4) was not violated in the authors' case.

11.6 As to the claim that the 1982 Act was discriminatory, the Committee observes that the Act applied only to those Western Samoans were not resident in New Zealand and that the authors at that time were not resident in New Zealand and had no ties with that country. There is no basis for concluding that the application of the Act to the authors was discriminatory contrary to 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 do not reveal a breach of any of the articles of the Covenant.

[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

APPENDIX

Individual opinion by Abdelfattah Amor, Prafullachandra Natwarlal Bhagwati,

Pilar Gaitan de Pombo and Hipólito Solari Yrigoyen

The majority members have reviewed the admissibility of the communication and taken the view that on account of non-exhaustion of domestic remedies, the communication must be held to be inadmissible. We find it difficult to take this apparently easy route in order to by-pass a decision on merits which might possibly lead to a rather inconvenient result. The Committee considered the question of admissibility at the stage of admission and held it admissible inter alia under articles 17 and 23. We do not see any reason to change this view. We have gone through the case of Tavita v. the Minister of Immigration [1994] as also the case of Puli'uvea v. Removal Authority [1996]. We find that in those cases the decision of the Minister of Immigration in one case and the decision of the Removal Review Authority in the other were challenged in the Court of Appeal on merits on the ground that they were in violation of the international obligations undertaken by New Zealand. But here in the present case, it was a Parliamentary legislation of New Zealand which stood in the way of the authors so far as the claim under article 12 (4) of the Covenant was concerned and it is extremely doubtful whether the Court of Appeal would have jurisdiction to ignore a Parliamentary Statute and give relief to the authors. Moreover, the decision of the Removal Review Authority was given in August 1992 and at that date, it was extremely doubtful whether international obligations would be enforceable by the Courts in New Zealand in the absence of domestic legislation. It was only in 1994 when Tavita's case was decided that the position became clear but by that time, the period of limitation for filing an appeal before the Court of Appeal under section 115A had expired. We are therefore of the view that the communication cannot be regarded as inadmissible on the ground of non‑exhaustion of domestic remedies.

We note that Mr. and Mrs. Toala have no children in Western Samoa who can take care of them and that the children in New Zealand are the only care providers. The authors have lived in New Zealand since 1986 and have developed effective family ties there. The refusal by the State party to regularize the stay of all three authors is mainly based on Mr. Toala's criminal conviction in 1980. The material before the Committee does not show that adequate weight was given to the family life of the authors. We are of the view that in the particular circumstances of the case, to refuse to allow the authors to reside in New Zealand with the adult/children of Mr. and Mrs. Toala who are their only care providers is disproportionate and would, hence constitute arbitrary interference with their family. Consequently we find a violation of articles 17 and 23 in regard to Mr. and Mrs. Toala and their son Eka.

(Signed) Abdelfattah Amor

(Signed) Prafullachandra Natwarlal Bhagwati

(Signed) Pilar Gaitan de Pombo

(Signed) Hipólito Solari Yrigoyen

[Done 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.]

D. Communication No. 687/1996, Rojas García v. Colombia

(Views adopted on 3 April 2001, seventy-first session)*

Submitted by: Mr. Rafael Armando Rojas García

Alleged victim: The author

State party: Colombia

Date of communication: 30 August 1995 (initial submission)

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

Meeting on 3 April 2001,

Having concluded its consideration of communication No. 687/1996 submitted to the Human Rights Committee by Mr. Rafael Armando Rojas García, 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 Rafael Armando Rojas García, a Colombian citizen, writing on his own behalf and on behalf of his elderly mother, his two children, his brother and two sisters, three nieces and a domestic helper. He claims that they are the victims of violations by Colombia of article 7, article 14, paragraph 3 (a), article 17, paragraphs 1 and 2, article 19, paragraph 3 (a), article 23 and article 24 of the International Covenant on Civil and Political Rights. The facts as submitted seem to raise an issue also under article 9, paragraph 1, of the Covenant.

The facts as submitted by the author

2.1 On 5 January 1993, at 2 a.m., a group of armed men wearing civilian clothes, from the Public Prosecutor's Office (Cuerpo Técnico de Investigación de la Fiscalía), forcibly entered the author's house through the roof. The group carried out a room-by-room search of the premises, terrifying and verbally abusing the members of the author's family, including small children. In the course of the search, one of the officials fired a gunshot. Two more persons then entered the house through the front door; one typed up a statement and forced the only adult male (Alvaro Rojas) in the family to sign it; he did not allow him to read it, or to keep a copy. When Alvaro Rojas asked whether it was necessary to act with such brutality, he was told to talk to the Public Prosecutor, Carlos Fernando Mendoza. It was at this juncture that the family was informed that the house was being searched as part of an investigation into the murder of the mayor of Bochalema, Ciro Alonso Colmenares.

2.2 On the same day, Alvaro Rojas filed a complaint for unlawful entry into the family house with the Provincial Attorney-General's Office in Cúcuta (Procuraduría Provincial de Cúcuta). An inquiry was initiated by the provincial authorities, which was not only not duly completed but was simply shelved on 3 November 1993. The author was not informed about the discontinuation of his complaint. He filed a new complaint with the Administrative Police in Bogotá (Procuraduría General de la Nación, Procuraduría Delegada de la Policía Judicial y Administrativa). The new complaint was also shelved on 24 June 1994, purportedly on the principle of double jeopardy. The author then submitted the case to the Administrative Tribunal in Cúcuta in order to obtain some form of reparation for the raid on his house and the use of a firearm.

The complaint

3.1 The author claims that the violent assaults on the family home resulted in a severe nervous trauma, psychologically affecting the author's sister, Fanny Elena Rojas García, who was an invalid. She subsequently died, on 8 August 1993, the violent search being considered the indirect cause of her death. Similarly, the author's mother, aged 75, never quite recovered from the shock of the search.

3.2 The author states that the authorities, far from conducting a diligent investigation into the matter, have done everything possible to cover up the incident. No attempt was ever made to establish the responsibility either of the authorities that authorized the raid or of those who carried it out, including the officer who fired a gun in a room where there were young children.

3.3 The author contends that the events described constitute violations of article 7, article 14, paragraph 3 (a), article 17, paragraphs 1 and 2, article 19, paragraph 3 (a), article 23 and article 24 of the Covenant.

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

4.1 By submission of 12 November 1996, the State party argues that the author failed to exhaust domestic remedies, as an inquiry that may lead to disciplinary action is still under way in respect of the officers who raided the author's house.

4.2 The State party further argues that the entry into the author's house fulfilled all the legal requirements of article 343 of the Code of Criminal Procedure and was therefore within the scope of the law. The search was ordered by an officer of the court, Miguel Angel Villamizar Becerra, and was carried out in the presence of a prosecutor. In this respect, it is stated that all the pertinent documentation regarding the possible responsibility of the officials taking part in the raid was requested by the National Prosecutor (Fiscalía General) from its internal investigation section (Veeduría) in order to establish whether any disciplinary action was necessary. Reference is also made to a disciplinary inquiry carried out by the Investigating Office (Dirección Seccional del Cuerpo Técnico de Investigación) as well as by the Prosecutor for internal affairs in the police (Procuraduría Delegada para la Policía Judicial), both of which were filed.

5. On 22 January 1997, the author reiterates that the search was illegal since article 343 of the Code of Criminal Procedure does not provide for night-time "commando-like" actions, rooftop entries, firing into the air, etc. He states that the military prosecutor (Fiscal Delegado ante las Fuerzas Armadas) was not present, and that the prosecutor appeared only at the very end of the events and then only to draw up a record, of which no copy was given to the author's brother. The author reiterates the far-reaching repercussions that the house search had on his family, that his family was branded as the murderers of the ex-mayor, that his sister died after the raid, and that his mother and children continue to suffer from trauma. The author notes that the administrative procedures initiated in 1993 have not produced any results to date.

6. On 14 October 1997, the State party informed the Committee of its inquiries into the status of the administrative proceedings in the case. The National Public Prosecutor's Office (Fiscalia General de la Nación) requested information from the investigating office in Cúcuta (Dirección Seccional del Cuerpo Técnico de Investigación) as to whether proceedings had been initiated in respect of officer Gabriel Ruiz Jiménez. By 30 April 1997, no proceedings had been initiated. The request was reiterated in June, July and August 1997, again with negative results. The State party affirms that investigations continue and that, consequently domestic remedies have not been exhausted.

The Committee's decision on admissibility

7.1 At its sixty-second session, the Committee considered the admissibility of the communication and took note of the State party's request that the communication should be declared inadmissible for failure to exhaust domestic remedies. The Committee considered that in the circumstances of the case, it must be concluded that the author had diligently but unsuccessfully pursued remedies aimed at establishing responsibility for the raid on his house. More than five years after the events (at the time the decision on admissibility was taken), those responsible for the incident had not been identified or indicted, let alone tried. The Committee concluded that in the circumstances, domestic remedies had been "unreasonably prolonged" within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.

7.2 As to the author's allegations under article 14, paragraph 3 (a), article 19, paragraph 3 (a), article 23 and article 24 of the Covenant, the Committee observed that these remained of a general nature and had not been further substantiated. There was nothing to indicate, for example that criminal charges had been brought against the author of which he had not been promptly informed (art. 14, para. 3 (a)) or that he had been denied freedom of expression (art. 19), and no description was given of how the State had interfered in his family life or violated the rights of his children (arts. 23 and 24).

7.3 With respect to the remaining allegations, under article 7 and article 17, paragraphs 1 and 2 of the Covenant, the Committee considered that they had been sufficiently substantiated for purposes of admissibility and that they should accordingly be considered on their merits.

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

8.1 By submission of 28 December 1999, the State party reiterates its position on the inadmissibility of the complaint and states that, in its view, no violation of any of the articles of the International Covenant on Civil and Political Rights has taken place.

8.2 The State party notes, as did the author, that the investigating office in Cúcuta (Cuerpo Técnico de Investigación de la Fiscalia, Seccional Cúcuta) carried out an administrative inquiry into the incident that occurred on 5 January 1993 during the raid on the Rojas García family house and on 3 November 1993 ordered it to be discontinued as groundless. In addition, following the inquiry into the events, a preliminary investigation was ordered against Gabriel Ruiz Jiménez, the person who fired the shot during the raid. According to the Prosecutor for internal affairs in the police (Procuraduría Delegada), there are no grounds whatsoever for pursuing the preliminary inquiry, since it has been shown that a disciplinary inquiry into the same events was initiated and completed by the Attorney-General's Office, through the Director of the investigating office in Cúcuta (Seccional del Cuerpo Técnico de Investigación de Cúcuta), and was subsequently shelved (See paragraph 2.2).

8.3 In an official letter dated 10 May 1999, the Attorney-General's Office reiterated that the Director of the investigating office in Cúcuta, who opened the preliminary disciplinary inquiry against Gabriel Ruiz Jiménez, had shelved the case because he considered that the shot fired by Jiménez had been accidental and not the result of negligence or misconduct by the accused, and that there were therefore no grounds for initiating a formal investigation.

8.4 With regard to the psychological traumas caused to the house occupants by the ensuing panic, the State party maintains that it is up to an expert medical witness to determine their existence during the administrative hearing now under way.

8.5 The State party reports that the author has filed suit for reparation for the damages allegedly incurred in connection with these events, with the Administrative Tribunal of Norte de Santander.

8.6 The State party does not share the Committee's view that, more than five years after the events, those responsible for the incident have not been identified or indicted. For the State party, it is clear that a search was carried out by members of the investigating office in Cúcuta (Cuerpo Técnico de Investigación de la Fiscalia, Seccional Cúcuta) in accordance with article 343 of the Code of Criminal Procedure, which stipulates:

"Searches, procedure and requirements. Where there are serious grounds for believing that a person who is the subject of an arrest warrant, or weapons, instruments or items used in committing an offence or produced by an offence, are to be found in a building, vessel or aircraft, a court official may issue a court order for search and seizure duly stating the reasons.

"The court order referred to in the preceding paragraph does not require notification."

8.7 The State party therefore considers that responsibility for any irregularities in the performance of its duties must be determined by inquiries carried out by the competent State bodies. With regard to the alleged responsibility of Mr. Gabriel Ruiz Jiménez, the Attorney‑General's Office has established that it was the result of an accident.

8.8 In respect of the Committee's reference to unreasonably prolonged domestic remedies, within the meaning of article 5, paragraph 2 (b), of the Optional Protocol the State party wishes to make the following comments:

(1) Since the date of the incident, the brother of the author of the complaint has availed himself of the remedies provided in domestic law before the Attorney-General's Office, which, acting through the Administrative Police in Bogotá, issued an order on 24 June 1994 to shelve the investigation on the grounds that the National Public Prosecutor's Office, through the investigating officer in Cúcuta (Cuerpo Técnico de Investigación de Cúcuta), had initiated and completed a disciplinary inquiry into the same events. The State party points out that the mere fact that a domestic remedy does not find in favour of the complainant does not in itself mean that effective domestic remedies do not exist or have been exhausted. Clearly, in a case such as this, if a remedy is not appropriate, then it should not be exhausted but another, more appropriate procedure should be used.

(2) Mr. Rojas García brought a further complaint against the State before the Administrative Tribunal of Norte de Santander, thereby availing himself of another remedy; at the time of writing a decision by the Tribunal is imminent. These remedies have not therefore been unreasonably prolonged, as the Committee maintains, since, in the circumstances of the case, they have been used in the most appropriate and effective way. The appropriateness of a remedy means its suitability within the domestic legal system to protect the legal situation that has been violated. The remedy is designed to produce a result and cannot be interpreted as not having produced a result or as having produced a result that is clearly absurd or irrational. There was no intention on the part of the competent authorities to prolong the inquiries, but any lack of thoroughness would certainly have led to absurd and illogical decisions.

8.9 The State party reiterates that Mr. Rojas García had not exhausted internal remedies at the time he submitted has case for the Committee's consideration and the communication should thus be inadmissible under article 5, paragraph 2 (b), of the Optional Protocol.

9.1 The observations of the State party on the merits of the case were transmitted to the author, who, by submission of 14 March 2000, refutes a number of the State's arguments. He repeats, for example, that a family with no previous dealings whatsoever with the justice system was the victim of a raid and its members ill-treated. He states that the raid was carried out on the assumption that criminals were to be found on the premises and, when children and old people were found, instead of correcting the mistake, all that has been done to date is compound it.

9.2 According to the author, article 343 of the Code of Criminal Procedure could not be applied in a case involving the home of an innocent family, without first complying with the most basic legal provisions covering such cases. Forcible entry through the roof at 2 a.m. and the firing of a gunshot constituted violations of the right to life, family life and other rights and freedoms guaranteed by the Constitution of Colombia.

9.3 The author rejects the Government's argument to the effect that the longer an inquiry takes, the less absurd and illogical the decisions will be. The author reiterates that more than seven years have passed since the events occurred and the case has still not been resolved.

9.4 The author adds that arbitrary cases arising out of the excessive use of force should automatically be given special treatment and examined and adjudicated by international bodies of inquiry in order to reserve impartiality and due process.

9.5 By submission of 10 July 2000, the author reports that, in respect of his suit against the State for reparation for the raid on his house, in the Administrative Tribunal of Norte de Santander, the Tribunal denied his petition, on the grounds of lack of evidence and on a strict interpretation of article 343 of the Code of Criminal Procedure. He reports that an appeal has been lodged with the Council of State in Bogotá.

9.6 He also reiterates that, according to eyewitnesses, the search party was making for house No. 2-36 and not 2-44 (the Rojas García house). He also points out that the widow of Ciro Alonso Colmenares (Mayor of Bochalema, whose murder gave rise to the investigation and the subsequent raid on the Rojas family's house), assured him that she never made any allegations against them. As for the gunshot fired by Gabriel Ruiz Jiménez, he alleges that it was not accidental but occurred inside the house in order to compel the occupants to find the keys to the door to the street. He also states that, when they realized that an official of the Pamplona public prosecutor's office, Cecilia Rojas García, lived in the house, the assailants' attitude changed and some of them apologized and said there had been a mistake.

9.7 With regard to his sister's death some months after the raid, the author claims that the authorities did not make the necessary effort to show a causal link between the raid and her death.

Examination of the merits

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 for in article 5, paragraph 1, of the Optional Protocol.

10.2 The Committee has noted the State party's claim that the author had not exhausted domestic remedies at the time the communication was submitted to the Committee and that the communication should therefore not have been admitted. It also notes that, according to the State party, it was not the intention of the competent authorities to prolong the investigations, but any lack of thoroughness would have led to absurd and illogical decisions. The Committee refers to what was stated in its decision on admissibility in this connection.

10.3 The Committee must first determine whether the specific circumstances of the raid on the Rojas García family's house (hooded men entering through the roof at 2 a.m.) constitute a violation of article 17 of the Covenant. By submission of 28 December 1999, the State party reiterates that the raid on the Rojas García family's house was carried out according to the letter of the law, in accordance with article 343 of the Code of Criminal Procedure. The Committee does not enter into the question of the legality of the raid; however, it considers that, under article 17 of the Covenant, it is necessary for any interference in the home not only to be lawful, but also not to be arbitrary. The Committee considers, in accordance with its General Comment No. 16 (HRI/GEN/1/Rev.4 of 7 February 2000) that the concept of arbitrariness in article 17 is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. It further considers that the State party's arguments fail to justify the conduct described. Consequently, the Committee concludes that there has been a violation of article 17, paragraph 1, insofar as there was arbitrary interference in the home of the Rojas García family.

10.4 In view of the fact that the Committee has found a violation of article 17 in respect of the arbitrariness of the raid on the author's house, it does not consider it necessary to decide whether the raid constituted an attack on the family's honour and reputation.

10.5 With regard to the alleged violation of article 7 of the Covenant, the Committee notes that the treatment received by the Rojas García family at the hands of the police, as described in paragraph 2.1 above, has not been refuted by the State party. The Committee therefore decides that there has been a violation of article 7 of the Covenant in this case.

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 by the State party of article 7 and article 17, paragraph 1, of the International Covenant on Civil and Political Rights in respect of the Rojas García family.

12. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Rafael A. Rojas García and his family with an effective remedy, which must include reparation. The State party is also under an obligation to take steps to prevent similar violations occurring 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 or not 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 remedy when it has been determined that

a violation has occurred, 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. In addition, it requests the State party to publish the Committee's Views.

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

APPENDIX

Individual opinion of Committee members

Nisuke Ando and Ivan A. Shearer

We share the Committee's conclusion that there has been a violation of article 17, paragraph 1, insofar as there was arbitrary interference in the home of the Rojas García family. However, we are unable to share its conclusion that there has been a violation of article 7 in the present case (paras. 10.3 and 10.5).

According to the Committee (majority views), the treatment received by the Rojas García family at the hands of the police as described in paragraph 2.1, which has not been refuted by the State party, constitutes a violation of article 7. Paragraph 2.1 states that on 5 January 1993 at 2 a.m. a group of armed men, wearing civilian clothes, from the Public Prosecutor's office, forcibly entered the author's house through the roof; that the group carried out a room-by-room search of the premises, terrifying and verbally abusing the members of the author's family, including small children; and that one of the officials fired a gunshot in the course of the search.

As the author himself states, the search party apparently hit the wrong house (No. 2-44 instead of No. 2-36) and when they realized that an official of the local prosecutor's office lived in the house, some of the party's members apologized and said that there had been a mistake (para. 9.6). The author also states that the raid was carried out on the assumption that criminals were to be found on the premises but that, after the incident, the prosecutor's office failed to correct the mistake, thus compounding the case (para. 9.1).

To our mind, the search party must have expected strong resistance, even by firearms, from the house because they had assumed that the murderer or murderers of the mayor were hiding in it. This would explain what is described in paragraph 2.1: the forcible entry into the house through the roof in the middle of the night; the subsequent room-by-room search of the premises with probably harsh words by the searchers; and an accidental gunshot by one of them. Certainly, there was a mistake on the part of the prosecutor's office, but it is doubtful if the search party's conduct based on that mistake could be characterized as a violation of article 7.

In our view, the search party had been acting in good faith until they realized that they had hit a wrong target. The State party maintains that the raid of the author's house was in compliance with the law. The State party also asserts that the director of the local investigating office opened a preliminary inquiry into the gunshot and considered it not as misconduct but as an accident (para. 8.3). Under the circumstances we conclude that the search party had not intent to terrify the author's family.

Ordinarily article 7 requires an intent on the part of an actor as to possible effects of his/her act, and the lack of such intent works to eliminate or extenuate unlawfulness of the act. This holds true for police investigations such as the one in the present case. Therefore, in our view, there has been no violation of article 7 in this case.

(Signed) Nisuke Ando

(Signed) Ivan A. Shearer

[Done 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.]

E. Communication No. 727/1996, Paraga v. Croatia

(Views adopted on 4 April 2001, seventy-first session)*

Submitted by: Mr. Dobroslav Paraga

Alleged victim: The author

State party: Croatia

Date of communication: 16 April 1996 (initial submission)

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

Meeting on 4 April 2001,

Having concluded its consideration of communication No. 727/1996 submitted to the Human Rights Committee by Mr. Dobroslav Paraga, 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, dated 16 April 1996, is Dobroslav Paraga, a Croatian citizen residing in Zagreb. He claims to be a victim of violations by Croatia of articles 2, paragraph 3, 9, paragraphs 1 and 5, 7, 12, paragraph 2, 14, paragraphs 2 and 7, 19, paragraphs 1 and 2, 25 and 26 of the International Covenant on Civil and Political Rights. The Covenant entered into force for Croatia on 8 October 1991; the Optional Protocol entered into force for Croatia on 12 January 1996. He is not represented by Counsel.

The facts and claims as submitted by the author

2.1 The author notes that he has been a human rights activist throughout his life, and that he was imprisoned, tortured and was the subject of political trials in the former Yugoslavia. In 1990, he reorganized the Croatian Party of Rights ("HSP"), which had been banned since 1929. He then became the president of the HSP.

2.2 According to the author, following the disintegration of the former Yugoslavia, the new Croatian State has similarly subjected him to persecution and to numerous repressive measures, such as unlawful arrests, false declarations, political trials, unjustified arrest warrants, etc.

2.3 On 21 September 1991, the vice-president of the HSP, Ante Paradzik, was murdered after attending a political rally. The author contends that the attack had also targeted him, and that it was by pure chance that he had not been in the car with his colleague. In 1993, four officials of the Ministry of Internal Affairs were convicted of the murder; they were reportedly released in 1995.

2.4 On 22 November 1991, Mr. Paraga was arrested after a police ambush, on charges of planning to overthrow the Government. He was kept in detention until 18 December 1991, when his release was ordered after the High Court found that there was insufficient evidence in support of the charge. The author alleges a violation of article 9, paragraph 1 and 5, in this connection. He also claims that the president of the High Court was dismissed from his functions after having ruled in his favour.

2.5 On 1 March 1992, an explosion occurred in the offices of the HSP in Vinkovci, where the author had expected to be. Several people died in the blast, but according to the author, no formal investigation has ever taken place. On 21 April 1992, the author was summoned for having called the President of the Republic a dictator. Mr. Paraga claims that these events constitute a violation of article 19 of the Covenant, since the measures against him were aimed at restricting his freedom of expression.

2.6 On 2 June 1992, Mr. Paraga states that he was charged with "illegal mobilization of persons into an army". He claims that this charge was designed to prevent him from participating in an election campaign for Parliament and to run for election for the Presidency of the Republic. To the author, this was in violation of article 25 of the Covenant, since he was effectively prevented from being a candidate in the elections. Moreover, he argues that the elections were rigged.

2.7 On 30 September 1992, the public prosecutor filed an action in the Constitutional Court, with a view to obtaining a declaration banning the HSP. On 8 November 1992, a military court in Zagreb initiated an investigation against the HSP for conspiracy to overthrow the Government. For the author, this action constituted a violation of article 14, paragraph 7, since he had already been acquitted on this charge in 1991. His parliamentary immunity was withdrawn for 13 months. On 4 November 1993, the military court dismissed the charges against the author.

2.8 After a trip to the United States during which the author had called the President of the Republic an oppressor, he was charged with slander on 3 June 1993. Parliament stripped the author of his function as vice-chairman of the parliamentary committee on human and ethnic rights. The author claims that a member of the secret police admitted in a statement printed by a weekly newspaper in July 1993 that he had received an order to assassinate the author.

2.9 On 28 September 1993, the ministry of registrations cancelled the author's right to represent the HSP and, according to the author, granted it to an agent who represented the Government, thereby making the HSP a simple extension of the ruling party. The author's complaints to the Court of Registrars and to the Constitutional Court were rejected.

2.10 In the parliamentary elections of October 1995, the author participated with a new party, the "Croatian Party of Rights - 1861", but failed to secure re-election. He argues that because of the sanctions against him, he could not compete fairly in the election, in violation of article 25 of the Covenant. According to the author, the Polling Committee violated the Election Law which allowed the HSP (then led by a Government agent) to enter Parliament although it had not obtained the required 5 per cent of the total vote. The author and leaders of 10 other political parties filed an objection, which the Constitutional Court dismissed on 20 November 1995.

2.11 The author notes that attacks on his person continue. He refers to a court order dated 31 January 1995, which was confirmed on 25 March 1996, that he must vacate the office premises he occupies. To him, this was done to obstruct him in his political activities. He further notes that his political party was elected as part of the coalition Government in the County Government of Zagreb, but that the President of the Republic did not accept the results of the election and blocked the appointment of a mayor.

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

3.1 In comments dated 31 October 1997, the State party recalls that when acceding to the Optional Protocol, it made the following declaration which limits the competence ratione temporis of the Committee to examine communications: "The Republic of Croatia interprets article 1 of this Protocol as giving the Committee the competence to receive and consider communications from individuals subject to the jurisdiction of the Republic of Croatia who claim to be victims of a violation by the Republic of any rights set forth in the Covenant which results either from acts, omissions or events occurring after the date on which the Protocol entered into force for the Republic of Croatia." For the State party, the author's allegations relate almost exclusively to events and acts which occurred well before the Protocol entered into force for Croatia on 12 January 1996.

3.2 For the State party, the alleged violations cannot be taken as a continuing process which, together, constitute a separate and continuing violation of the author's Covenant rights. Moreover, some of the judicial procedures referred to by the applicant were resolved in his favour, such as the proceedings related to the ban of the HSP, which the public prosecutor decided to discontinue. That the author was involved in a number of judicial procedures over the years does not prove that these procedures were mutually inter-related, nor does it generate the continuing effect the procedures may have had on the enjoyment of the author's rights.

3.3 It is conceded that an exception to the above observations is the court order issued against Mr. Paraga to vacate the premises he and his party occupy, which was confirmed on 25 March 1996, i.e. after the entry into force of the Optional Protocol for Croatia. However, the State party argues that as Mr. Paraga does not claim a violation of article 26 in this regard but a violation of his right to property, which is not protected by the Covenant, this part of the

communication is inadmissible ratione materiae. Besides, the State party notes, the Constitutional Court of Croatia can address both the prohibition of discrimination on the basis of political opinion and the protection of property, in the context of the protection of fundamental rights and freedoms guaranteed by the Constitution. As this avenue was not used by the author in respect of this allegation, available domestic remedies have not been exhausted.

3.4 Thus, the State party considers the communication to be inadmissible partly on account of its declaration ratione temporis and, partly because of non-exhaustion of domestic remedies.

4.1 In his comments, the author contends that all the consequences, legal or otherwise, of actions taken against him by the Croatian authorities have had continuing effects. He reiterates that:

(a) The murder of his former deputy and vice-president of the HSP, Ante Paradzik, was never completely solved. After the second trial of four members of the Interior Ministry, the perpetrators of the crime were pardoned, and the judge who had sentenced them for conspiracy lost his job;

(b) The legal action initiated against the author which led to his arrest on 22 November 1991 and which resulted in his release for lack of evidence was never formally finalized, so that the author cannot initiate an action for compensation for unlawful arrest and unlawful detention;

(d) No fair and impartial investigation into the bombing of the headquarters of his party on 1 March 1992 in Vinkovci was ever conducted;

(e) No impartial investigation into the alleged rigging of the elections of 2 August 1992 was carried out;

(f) No investigation into the alleged assassination scheme against the author in March 1993, claimed to have been plotted by members of the Government, was ever carried out;

(g) and finally, after the author was stripped of the leadership of the HSP, his (former) party was turned into a "satellite" of the ruling party.

4.2 The author affirms that he is a victim of a violation of article 26, on the grounds that he has been discriminated against because of his political opinions. On 7 October 1997, the County Court of Zagreb initiated proceedings against the author on the basis of article 191 of the Criminal Code of Croatia, for spreading false information; the author notes that he may be sentenced to six months' imprisonment if found guilty. On 4 December 1997, the author was arrested at the Austrian border, allegedly after misinformation about the purpose of the author's

visit had wilfully been given to the Austrian authorities by the Croatian Ministry of Foreign

Affairs - the author was kept 16 hours in Austrian detention. A similar event had already occurred on the occasion of a visit by the author to Canada, when he was kept detained for six days in Toronto in June 1996, allegedly because the Croatian Government had accused him of subversive activities.

4.3 The author rejects as incorrect the Government's argument that the legal procedures related to the evacuation and dispossession of the flat used as an office of the author's political party had nothing to do with discrimination on the basis of political opinion. Rather, he asserts, it was only because of international public pressure and due to the intervention of the flat's owner, who has dual (Croatian/Canadian) citizenship, that the court decision of 25 March 1996 was not enforced.

4.4 As to the possibility of having the Constitutional Court rule on claims of unlawful discrimination and illegal expropriation and violations of other fundamental rights, the author contends that the Court "is an instrument of the governing oligarchy and that [on] essential matters, the decisions of ... President Tudjman" are not questioned. Therefore, such constitutional remedies are said to be ineffective, and the author argues that in respect of all the above issues and claims, he has exhausted domestic remedies.

Admissibility considerations

5.1 During its sixty-third session, the Committee considered the admissibility of the communication.

5.2 The Committee recalled that upon acceding to the Optional Protocol, the State party entered a declaration restricting the Committee's competence to events following the entry into force of the Optional Protocol for Croatia on 12 January 1996. The Committee noted that most of the alleged violations of Mr. Paraga's rights under the Covenant result from a series of acts and events which occurred between 1991 and 1995 and thus precede the date of entry into force of the Optional Protocol for Croatia.

5.3 The Committee considered, however, that the author's claims that he cannot initiate an action for compensation for his allegedly unlawful arrest and detention of 22 November 1991, since the proceedings have never been formally finalized, as well as his claim that the procedure initiated against him on 21 April 1992 for slander has never been terminated, relate to incidents that have continuing effects which in themselves may constitute a violation of the Covenant. The Committee considered therefore that these claims were admissible and should be examined on the merits.

5.4 The Committee considered that it was precluded ratione temporis, in light of the declaration made by the State party upon accession to the Optional Protocol, from considering the remainder of the communication insofar as it related to events which occurred before 12 January 1996, since the continuing effects claimed by Mr. Paraga did not appear to constitute in themselves a violation of the Covenant, nor could they be interpreted as an affirmation, by act or clear implication, of the alleged previous violations of the State party.

5.5 In relation to the court order ordering the author to vacate the apartment he uses as an office of his political party, the Committee noted the State party's argument that complaints about unlawful and arbitrary dispossession of property and unlawful discrimination may be adjudicated by the Constitutional Court. The author merely contended that this remedy is not effective, as the Constitutional Court is "an instrument of the governing oligarchy". The Committee recalled that mere doubts about the effectiveness of domestic remedies do not absolve a complainant from resorting to them; the Committee noted in this context that in respect of other alleged violations of his rights, Croatian tribunals had ruled in the author's favour in the past. In the circumstances, the Committee concluded that recourse to the Constitutional Court in relation to the order to vacate the apartment used as office premises by the author would not be a priori futile. Accordingly, the requirements of article 5, paragraph 2 (b), of the Optional Protocol have not been met in this respect.

5.6 With regard to the author's claim that he is a victim of a violation of article 26, referred to in paragraph 4.2 above, the Committee considered that this claim was admissible and should be examined on its merits.

6. Accordingly, on 24 July 1998, the Human Rights Committee decided that the communication was admissible insofar as it related to the author's arrest and detention on 22 November 1991, the slander proceedings initiated against him on 21 April 1992, and his claim that he was a victim of discrimination.

The State party's information and the author's reply on the merits of the communication

7.1 In its submission on the merits, the State party provides further information on the proceedings involving the author's arrest and detention in November 1991, and on the charges of "dissemination of false information" of April 1992, and confirms that proceedings with respect to all related charges have now been terminated.

7.2 The State party confirms that Mr. Paraga was arrested on 22 November 1991, that his detention was ordered by the investigating judge with reference to articles 191, paragraph 2, points 2 and 3 of the Criminal Procedures Act, and that he was released on 18 December 1991, by the Zagreb County Court.

7.3 The State party states that on 25 November 1991 the Zagreb County Public Attorney's Office filed a request under No. KT - 566/91 to initiate an investigation against Mr. Paraga on charges of "armed rebellion" and charges of "illegal possession of weapons and explosives", pursuant to article 236 (f), paragraphs 1 and 2, and article 209, paragraphs 2 and 3, respectively, of the Croatian Penal Code, which was in force at the time. A request for custody was also made under article 191, paragraph 2, points 2 and 3 of the Criminal Procedures Act.

7.4 The investigating judge rejected the request to conduct an investigation and delivered the case to a panel of judges who decided to conduct an investigation with respect to article 209, paragraphs 2 and 3 only. However, the County Public Attorney's Office failed to issue an indictment, and did not ask the investigating judge to proceed with the investigation. Therefore, the investigating judge forwarded the file to the panel of three judges again, who decided to

discontinue further proceedings against Mr. Paraga, pursuant to article 162, paragraph 1, point 3, of the Criminal Procedures Act, in a decision dated No. Kv-48/98 of 10 June 1998. According to the State party, the decision was sent to Mr. Paraga on 17 June 1998 and received by him on 19 June 1998.

7.5 The State party claims that Mr. Paraga's arrest was conducted legally, in accordance with the Criminal Procedures Act in force at the time and that, therefore, the Republic of Croatia did not violate article 9, paragraph 1, of the Covenant. Moreover, the State party notes that since the procedure has been terminated the author may take an action for compensation before the Croatian courts, in accordance with article 9, paragraph 5, of the Covenant.

7.6 The State party confirms that proceedings were instituted by the Municipal Public Attorney's Office, in April 1992, for "dissemination of false information", under article 191 of the Penal Code (article 197, paragraph 1, of the earlier Code), pursuant to article 425, paragraph 1, with reference to article 260, paragraph 1, point 1 of the Criminal Proceedings Act. (See further below). The State party states that due to amendments made to the respective provisions of the Penal Code, and the passage of time, the Split Municipal Court, who had received the indictment from the Public Attorney's office, dismissed the charges against Mr. Paragon in a decision, No. IK-504/92, issued on 26 January 1999.

7.7 As for the alleged discrimination due to the author's political views, especially after his interviews with Novi list daily, the State party confirms that the Zagreb Municipal Public Attorney's Office instituted proceedings against Mr. Paraga on 7 October 1997, for "dissemination of false information", pursuant to article 191 of the Penal Code in force at that time. However, upon completion of the ensuing inquiry, the criminal proceedings were dismissed on 26 January 1998.

7.8 The State party explains, that the dissemination of false information, pursuant to the then applicable article 191 of the Penal Code, could have been "committed by a person who transmits or spreads news or information known by the person to be false, and likely to disturb a greater number of citizens, and also intended to cause such disturbance." Under the new Penal Code, in force since 1 January 1998, the same criminal offence is now referred to as "dissemination of false and disturbing rumours" (article 322 of the Penal Code) and to be convicted thereon "the perpetrator must know that the rumours he/she spreads are false, his/her purpose is to disturb a greater number of citizens, and a greater number of citizens are disturbed." What is required, therefore, is that the effect corresponds with the intent. According to the State party, as this was not the case in this instance, the criminal charges were dropped and proceedings against Mr. Paraga were terminated on 26 January 1998.

7.9 Regarding the author's allegation that he was arrested and detained on the Austrian border on 4 December 1997 and on the Canadian border in June 1996, on the basis of false information given earlier by the Croatian Ministry of Foreign Affairs about the purpose of his travel, the Croatian Ministry of Foreign Affairs strongly reject such allegations as malicious and entirely unfounded. According to the State party, the Croatian Embassy in Vienna requested and received an official explanation from the Austrian authorities about Mr. Paraga's detention which, it claims, was only brought to its attention by the Austrian press. The State party was informed that Mr. Paraga had entered Austria as a Slovenian citizen, and was detained until certain facts were established on why Mr. Paraga had been denied entry to Austria back in 1995. It was also informed that a complaint filed by Mr. Paraga himself against his detention was still being processed. The State party claims that as Mr. Paraga had not notified the Croatian diplomatic mission of the incident, it was not possible to protect him under the international conventions.

7.10 Similarly, the State party claims that it was only informed by the press of Mr. Paraga's detention by the Canadian Immigration Office in Toronto and that on becoming aware of his detention, the Consul General of the Republic of Croatia in Mississauga contacted Mr. Paraga's attorney who refused to give him any information. The Consul General then attempted to contact Mr. Henry Ciszek, supervisor of the Canadian Immigration Office at Toronto Airport, who informed him that Mr. Paraga travelled with a Slovenian passport (his Croatian passport did not have a valid Canadian visa), and that he refused consular protection by refusing to speak to the Consul General.

8.1 The author rejects the State party's submissions on the merits as "completely untrue". With respect to his arrest and detention in November 1991, the author claims that he was arrested "without charge" and arrested and detained "arbitrarily and absolutely without basis" for political reasons only. The author alleges that the President of the Republic of Croatia exerted pressure on the then president of the Supreme Court to sentence him "illegally" and that when he refused to do so, he was dismissed from his position as the President of the Supreme Court on 24 December 1991.

8.2 The author confirms that the court decision terminating these proceedings against him was issued on 10 June 1998. However, he states that this was only issued after he had filed a communication with the Human Rights Committee, and after filing a fourth "rush note" for

termination of the procedure, with the County Court of Zagreb. In addition, the author states that at least from 1991 to 1998 he was under criminal investigation and that this deprived him of his civil and political rights as "person under investigation cannot have any permanent job, he is not allowed to use social and health care or to be employed".

8.3 With regard to the charges initiated against Mr. Paragon in April 1992 for slander, the author concedes that these charges were terminated but contends that this took seven years from the date he was charged.

8.4 In relation to the charges made on 7 October 1997 for the dissemination of false information the author contends that, despite the State party's claim to the contrary, these proceedings have not yet been finalized. The author states that he has not received any decision on the termination of these proceedings. The author reiterates his belief that his arrest by border guards in Canada in 1996 and in Austria in 1997 resulted from the Croatian authorities information to the border controls of both countries that the author was involved in subversive activities. In fact, the author claims that he was informed of such by both the Canadian and Austrian immigration authorities. He refutes the State party's contention that they were prepared to offer him help during his detention in Canada and Austria and claims that on neither occasion did the Croatian authorities assist to have him released. The author claims that he lodged a complaint against the Government of Croatia for compensation for damages after his detention in Canada and Austria for what he refers to as "misuse of power".

Reconsideration of the admissibility decision and examination of the merits

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

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

9.3 With respect to the author's alleged unlawful arrest and detention of 22 November 1991 the Committee decided, in its admissibility decision of 24 July 1998, that the communication was admissible insofar as it related to the continuing effects of the criminal proceedings, which were instituted against the author at this time and were still pending at the time of the submission of the communication. The Committee recalls that its decision on admissibility was predicated on the alleged continuing effects of violations that are said to have occurred prior to the entry into force of the Optional Protocol for Croatia.

9.4 The Committee notes the State party's contention that these proceedings were terminated on 17 June 1998, and its contention that the author can now file a claim for compensation in the domestic courts. Given this new information provided since the decision on admissibility, the Committee reviews its previous decision on admissibility, in accordance with rule 93 (4) of its rules of procedure, and declares that the claims relating to an alleged violation of article 9, paragraph 5, is inadmissible because of the authors failure to exhaust domestic remedies in this respect under article 5, paragraph 2 (b) of the Optional Protocol. The author should avail himself of domestic remedies in this regard.

9.5 The Committee proceeds without delay to the consideration of the merits of the claim with respect to the slander proceedings and the alleged discrimination.

9.6 In relation to the slander proceedings, the Committee has noted the author's contention that proceedings were instituted against him because he referred to the President of the Republic as a dictator. While the State party has not refuted that the author was indeed charged for this reason, it has informed the Committee that the charges against the author were finally dismissed by the court in January 1999. The Committee observes that a provision in the Penal Code under which such proceedings could be instituted may, in certain circumstances, lead to restrictions that go beyond those permissible under article 19, paragraph 3 of the Government. However, given the absence of specific information provided by the author and the further fact of the dismissal of the charges against the author, the Committee is unable to conclude that the institution of proceedings against the author, by itself, amounted to a violation of article 19 of the Covenant.

9.7 The Committee observes, that the charges brought against Mr. Paraga in November 1991 and the slander charges brought against him in April 1992 raise the issue of undue delay (article 14, paragraph 3 (c) of the Covenant). The Committee is of the view that this issue is

admissible as the proceedings were not terminated until two and a half years and three years,

respectively, after the entry into force of the Optional Protocol in respect of the State party. The Committee notes that both procedures took seven years altogether to be finalized, and observes that the State party, although it has provided information on the course of the proceedings, has not given any explanation on why the procedures in relation to these charges took so long and has provided no special reasons that could justify the delay. The Committee considers, therefore, that the author was not given a trial "without undue delay", within the meaning of article 14, paragraph 3 (c) of the Covenant.

9.8 As to the author's claim that he is a victim of discrimination because of his political opposition to the then Government of Croatia, the Committee notes that the proceedings which were instituted against the author on 7 October 1997 were dismissed, a few months later, on 26 January 1998. In view of this fact, and lacking any further information that would substantiate this claim, the Committee cannot find a violation of any of the articles of the Covenant in this regard.

9.9 With regard to the author's allegation that he was subjected to defamation by the Croatian authorities in Austria and Canada, the Committee notes that the State party has stated that in neither case did the author inform the Croatian authorities of his detention and that with respect to his entry into Canada he was travelling on a Slovenian passport. The Committee notes that the author has not further commented on these points. Therefore, the Committee concludes that the author has not substantiated his claim and considers that there has been no violation in this respect.

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 as found by the Committee reveal a violation by Croatia of article 14, paragraph 3 (c).

11. Pursuant to article 2, paragraph 3 (a), of the Covenant, the Committee considers that the author is entitled to an effective remedy, including appropriate compensation.

12. 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 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 its 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. 736/1997, Ross v. Canada

(Views adopted on 18 October 2000, seventieth session)*

Submitted by: Malcolm Ross (represented by Douglas H. Christie, legal counsel)

Alleged victim: The author

State party: Canada

Date of communication: 1 May 1996

Prior decisions: Special Rapporteur's rule 91 decision, transmitted to the State party on 20 January 1997 (not issued in document form)

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

Meeting on 18 October 2000,

Having concluded its consideration of communication No. 736/1997 submitted to the Human Rights Committee by Malcolm Ross 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 Malcolm Ross, a Canadian citizen. He claims to be a victim of a violation by Canada of articles 18 and 19 of the Covenant. He is represented by counsel, Mr. Douglas H. Christie.

The facts as submitted by the author

2.1 The author worked as a modified resource teacher for remedial reading in a school district of New Brunswick from September 1976 to September 1991. Throughout this period, he published several books and pamphlets and made other public statements, including a television interview, reflecting controversial, allegedly religious opinions. His books concerned abortion, conflicts between Judaism and Christianity, and the defence of the Christian religion. Local media coverage of his writings contributed to his ideas gaining notoriety in the community. The author emphasizes that his publications were not contrary to Canadian law and that he was never prosecuted for the expression of his opinions. Furthermore, all writings were produced in his own time, and his opinions never formed part of his teaching.

2.2 Following expressed concern, the author's in-class teaching was monitored from 1979 onwards. Controversy around the author grew and, as a result of publicly expressed concern, the School Board on 16 March 1988, reprimanded the author and warned him that continued public discussion of his views could lead to further disciplinary action, including dismissal. He was, however, allowed to continue to teach, and this disciplinary action was removed from his file in September 1989. On 21 November 1989, the author made a television appearance and was again reprimanded by the School Board on 30 November 1989.

2.3 On 21 April 1988, a Mr. David Attis, a Jewish parent, whose children attended another school within the same School District, filed a complaint with the Human Rights Commission of New Brunswick, alleging that the School Board, by failing to take action against the author, condoned his anti-Jewish views and breached section 5 of the Human Rights Act by discriminating against Jewish and other minority students. This complaint ultimately led to the sanctions set out in paragraph 4.3 below.

Relevant domestic procedures and legislation

3.1 As a result of its federal structure, Canada's human rights law is bifurcated between the federal and the provincial jurisdictions. Each province, as well as the federal and territorial jurisdictions, has enacted human rights legislation. The details of the different legislative regimes may differ, but their overall structure and contour are similar.

3.2 According to the State party, the human rights codes protect Canadian citizens and residents from discrimination in numerous areas, including employment, accommodation and services provided to the public. Any individual claiming to be a victim of discrimination may file a complaint with the relevant human rights commission, which will in turn inquire into the complaint. The burden of proof to be met by the complainant is the civil standard based on a balance of probabilities, and the complainant need not show that the individual intended to discriminate. A tribunal appointed to inquire into a complaint has the authority to impose a wide range of remedial orders, but has no authority to impose penal sanctions. Individuals concerned about speech that denigrates particular minorities may choose to file a complaint with a human rights commission rather than or in addition to filing a complaint with the police.

3.3 The complaint against the School Board was lodged under section 5 (1) of the New Brunswick Human Rights Code. This section reads:

"No person, directly or indirectly, alone or with another, by himself or by the interpretation of another, shall

(a) deny to any person or class of persons with respect to any accommodation, services or facilities available to the public, or

(b) discriminate against any person or class of persons with respect to any accommodation, services or facilities available to the public,

because of race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation or sex."

3.4 In his complaint, Mr. Attis submitted that the School Board had violated section 5 by providing educational services to the public which discriminated on the basis of religion and ancestry in that they failed to take adequate measures to deal with the author. Under section 20 (1) of the same Act, if unable to effect a settlement of the matter, the Human Rights Commission may appoint a board of inquiry composed of one or more persons to hold an inquiry. The board appointed to examine the complaint against the School Board made its orders pursuant to section 20 (6.2) of the same Act, which reads:

"Where, at the conclusion of an inquiry, the Board finds, on a balance of probabilities, that a violation of this Act has occurred, it may order any party found to have violated the Act:

(a) to do, or refrain from doing, any act or acts so as to effect compliance with the Act,

(b) to rectify any harm caused by the violation,

(c) to restore any party adversely affected by the violation to the position he would have been in but for the violation,

(d) to reinstate any party who has been removed from a position of employment in violation of the Act,

(e) to compensate any party adversely affected by the violation for any consequent expenditure, financial loss or deprivation of benefit, in such amount as the Board considers just and appropriate, and

(f) to compensate any party adversely affected by the violation for any consequent emotional suffering, including that resulting from injury to dignity, feeling or self-respect, in such amount as the Board considers just and appropriate."

3.5 Since 1982, the Canadian Charter of Rights and Freedoms ("the Charter") has been part of the Canadian Constitution, and consequently any law that is inconsistent with its provisions is, to the extent of that inconsistency, of no force or effect. The Charter applies to the federal, provincial and territorial governments in Canada, with respect to all actions of those governments, whether they be legislative, executive or administrative. Provincial human rights codes and any orders made pursuant to such codes are subject to review under the Charter. The limitation of a Charter right may be justified under section 1 of the Charter, if the Government can demonstrate that the limitation is prescribed by law and is justified in a free and democratic society. Sections 1, 2 (a) and 2 (b) of the Charter provide:

"1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; …"

3.6 There are also several other legislative mechanisms both at the federal and provincial level to deal with expressions that denigrate particular groups in Canadian society. For example, the Criminal Code prohibits advocating genocide, the public incitement of hatred and the wilful promotion of hatred. The consent of the Attorney-General is required to commence a prosecution with respect to these offences. The burden of proof on the Crown is to demonstrate that the accused is guilty beyond a reasonable doubt and the Crown must prove all the requisite elements of the offence, including that the accused possessed the requisite mens rea.

The procedure before the domestic tribunals

4.1 On 1 September 1988, a Human Rights Board of Inquiry was established to investigate the complaint. In December 1990 and continuing until the spring of 1991, the first hearing was held before the Board. All parties were represented at the hearing and, according to the State party, were given full opportunity to present evidence and make representations. There were in total 22 days of hearing, and testimony was given by 11 witnesses. The Board found that there was no evidence of any classroom activity by the author on which to base a complaint of discrimination. However, the Board of Inquiry also noted that

"… a teacher's off-duty conduct can impact on his or her assigned duties and thus is a relevant consideration ... An important factor to consider, in determining if the Complainant has been discriminated against by Mr. Malcolm Ross and the School Board, is the fact that teachers are role models for students whether a student is in a particular teacher's class or not. In addition to merely conveying curriculum information to children in the classroom, teachers play a much broader role in influencing children through their general demeanour in the classroom and through their off-duty lifestyle. This role model influence on students means that a teacher's off-duty conduct can fall within the scope of the employment relationship. While there is a reluctance to impose restrictions on the freedom of employees to live their independent lives when on their

own time, the right to discipline employees for conduct while off-duty, when that conduct can be shown to have a negative influence on the employer's operation has been well established in legal precedent."

4.2 In its assessment of the author's off-duty activities and their impact, the Board of Inquiry made reference to four published books or pamphlets entitled respectively Web of Deceit, The Real Holocaust, Spectre of Power and Christianity v. Judeo-Christianity, as well as to a letter to the editor of The Miramichi Leader dated 22 October 1986 and a local television interview given in 1989. The Board of Inquiry stated, inter alia, that it had

"… no hesitation in concluding that there are many references in these published writings and comments by Malcolm Ross which are prima facie discriminatory against persons of the Jewish faith and ancestry. It would be an impossible task to list every prejudicial view or discriminatory comment contained in his writings as they are innumerable and permeate his writings. These comments denigrate the faith and beliefs of Jews and call upon true Christians to not merely question the validity of Jewish beliefs and teachings but to hold those of the Jewish faith and ancestry in contempt as undermining freedom, democracy and Christian beliefs and values. Malcolm Ross identifies Judaism as the enemy and calls on all Christians to join the battle.

Malcolm Ross has used the technique in his writings of quoting other authors who have made derogatory comments about Jews and Judaism. He intertwines these derogatory quotes with his own comments in a way such that he must reasonably be seen as adopting the views expressed in them as his own. Throughout his books, Malcolm Ross continuously alleges that the Christian faith and way of life are under attack by an international conspiracy in which the leaders of Jewry are prominent.

… The writings and comments of Malcolm Ross cannot be categorized as falling within the scope of scholarly discussion which might remove them from the scope of section 5 [of the Human Rights Act]. The materials are not expressed in a fashion that objectively summarizes findings and conclusions or propositions. While the writings may have involved some substantial research, Malcolm Ross' primary purpose is clearly to attack the truthfulness, integrity, dignity and motives of Jewish persons rather than the presentation of scholarly research."

4.3 The Board of Inquiry heard evidence from two students from the school district who described the educational community in detail. Inter alia, they gave evidence of repeated and continual harassment in the form of derogatory name calling of Jewish students, carving of swastikas into desks of Jewish children, drawing of swastikas on blackboards and general intimidation of Jewish students. The Board of Inquiry found no direct evidence that the author's off-duty conduct had impacted on the school district, but found that it would be reasonable to anticipate that his writings were a factor influencing some discriminatory conduct by the students. In conclusion, the Board of Inquiry held that the public statements and writings of Malcolm Ross had continually over many years contributed to the creation of a "poisoned environment within School District 15 which has greatly interfered with the educational services provided to the Complainant and his children". Thus, the Board of Inquiry held that the School Board was vicariously liable for the discriminatory actions of its employee and that it was directly in violation of the Act due to its failure to discipline the author in a timely and appropriate manner, so endorsing his out-of-school activities and writings. Therefore, on 28 August 1991, the Board of Inquiry ordered

"… (2) That the School Board

(a) immediately place Malcolm Ross on a leave of absence without pay for a period of 18 months;

(b) appoint Malcolm Ross a non-teaching position if, …, a non-teaching position becomes available in School District 15 for which Malcolm Ross is qualified; …

(c) terminate his employment at the end of the 18 months' leave of absence without pay if, in the interim, he has not been offered and accepted a non-teaching position;

(d) terminate Malcolm Ross' employment with the School Board immediately if, at any time during the eighteen month leave of absence or of at any time during his employment in a non-teaching position, he (i) publishes or writes for the purpose of publication, anything that mentions a Jewish or Zionist conspiracy, or attacks followers of the Jewish religion, or (ii) publishes, sells or distributes any of the following publications, directly or indirectly: Web of Deceit, The Real Holocaust (The attack on unborn children and life itself), Spectre of Power, Christianity vs Judeo-Christianity (The battle for truth)."

4.4 Pursuant to the Order, the School Board transferred the author to a non-classroom teaching position in the School District. The author applied for judicial review requesting that the order be removed and quashed. On 31 December 1991, Creaghan J. of the Court of Queen's Bench allowed the application in part, quashing clause 2 (d) of the order, on the ground that it was in excess of jurisdiction and violated section 2 of the Charter. As regards clauses (a), (b), and (c) of the order, the court found that they limited the author's Charter rights to freedom of religion and expression, but that they were saved under section 1 of the Charter.

4.5 The author appealed the decision of the Court of Queen's Bench to the Court of Appeal of New Brunswick. At the same time, Mr. Attis cross-appealed the Court's decision regarding section 2 (d) of the Order. The Court of Appeal allowed the author's appeal, quashing the order given by the Board of Inquiry, and accordingly rejected the cross-appeal. By judgement of 20 December 1993, the Court held that the order violated the author's rights under section 2 (a) and (b) of the Charter in that they penalized him for publicly expressing his sincerely held views by preventing him from continuing to teach. The Court considered that, since it was the author's activities outside the school that had attracted the complaint, and since it had never been suggested that he used his teaching position to further his religious views, the ordered remedy did not meet the test under section 1 of the Charter, i.e. it could not be deemed a specific purpose so pressing and substantial as to override the author's constitutional guarantee of freedom of expression. To find otherwise would, in the Court's view, have the effect of condoning the suppression of views that are not politically popular any given time. One judge, Ryan J.A., dissented and held that the author's appeal should have been dismissed and that the cross-appeal should have been allowed, with the result that section 2 (d) of the Order should have been reinstated.

4.6 Mr. Attis, the Human Rights Commission and the Canadian Jewish Congress then sought leave to appeal to the Supreme Court of Canada, which allowed the appeal and, by decision of 3 April 1996, reversed the judgement of the Court of Appeal, and restored clauses 2 (a), (b) and (c) of the order. In reaching its decision, the Supreme Court first found that the Board of Inquiry's finding of discrimination contrary to section 5 of the Human Rights Act on the part of the School Board was supported by the evidence and contained no error. With regard to the evidence of discrimination on the part of the School Board generally, and in particular as to the creation of a poisoned environment in the School District attributable to the conduct of the author, the Supreme Court held

"… that a reasonable inference is sufficient in this case to support a finding that the continued employment of [the author] impaired the educational environment generally in creating a 'poisoned' environment characterized by a lack of equality and tolerance. [The author's] off-duty conduct impaired his ability to be impartial and impacted upon the educational environment in which he taught. (para. 49)

… The reason that it is possible to 'reasonably anticipate' the causal relationship in this appeal is because of the significant influence teachers exert on their students and the stature associated with the role of a teacher. It is thus necessary to remove [the author] from his teaching position to ensure that no influence of this kind is exerted by him upon his students and to ensure that educational services are discrimination free." (para. 101)

4.7 On the particular position and responsibilities of teachers and on the relevance of a teacher's off duty conduct, the Supreme Court further commented:

"… Teachers are inextricably linked to the integrity of the school system. Teachers occupy positions of trust and confidence, and exert considerable influence over their students as a result of their positions. The conduct of a teacher bears directly upon the community's perception of the ability of the teacher to fulfil such a position of trust and influence, and upon the community's confidence in the public school system as a whole.

… By their conduct, teachers as 'medium' must be perceived to uphold the values, beliefs and knowledge sought to be transmitted by the school system. The conduct of a teacher is evaluated on the basis of his or her position, rather than whether the conduct occurs within the classroom or beyond. Teachers are seen by the community to be the medium for the educational message and because of the community position they occupy, they are not able to 'choose which hat they will wear on what occasion'.

… It is on the basis of the position of trust and influence that we can hold the teacher to high standards both on and off duty, and it is an erosion of these standards that may lead to a loss in the community of confidence in the public school system. I do not wish to be understood as advocating an approach that subjects the entire lives of teachers to inordinate scrutiny on the basis of more onerous moral standards of behaviour. This could lead to a substantial invasion of the privacy rights and fundamental freedoms of teachers. However, where a 'poisoned' environment within the school system is traceable to the off-duty conduct of a teacher that is likely to produce a corresponding loss of confidence in the teacher and the system as a whole, then the off-duty conduct of the teacher is relevant." (paras. 43-45)

4.8 Secondly, the Court examined the validity of the impugned Order under the Canadian Constitution. In this regard, the Court first considered that the Order infringed sections 2 (a) and 2 (b) of the Charter as it in effect restricted respectively the author's freedom of religion and his freedom of expression. The Court went on to consider whether these infringements were justifiable under section 1 of the Charter, and found that the infringements had occurred with the aim of eradicating discrimination in the provision of educational services to the public, a "pressing and substantial" objective. The Court further found that the measures (a) (b) and (c) imposed by the order could withstand the proportionality test, that is there existed a rational connection between the measures and the objective, the impairment of the author's right was minimal, and there was proportionality between the effects of the measures and their objective. Clause (d) was found not to be justified since it did not minimally impair the author's constitutional freedoms, but imposed a permanent ban on his expressions.

The complaint

5.1 The author claims that his rights under articles 18 and 19 of the Covenant have been violated in that he is refused the right to express freely his religious opinions. In this context, his counsel emphasizes, which was recognized by the Courts, that the author never expressed his opinions in class and that he had a good record as a teacher. Counsel further states that there is no evidence that any of the students at the school had been adversely affected by the author's writings or were influenced by them, nor that the author ever committed any act of discrimination. In this context, it is pointed out that there were no Jewish students in the author's class.

5.2 Counsel argues that there is no rational connection between expressing a discriminatory religious opinion (i.e. this religion is true and that is false) and an act of discrimination (i.e. treating someone differently because of religion). In this regard, it is submitted that the author's opinions are sincere and of a religious character, opposing the philosophy of Judaism, since he feels that Christianity is under attack from Zionist interests. Counsel asserts that the requirement that an employee's conscience and religious expression be subject to State scrutiny or employer regulation in their off-duty time would make religious freedom meaningless.

5.3 Counsel further claims that the author's opinions and expressions are not contrary to Canadian law, which prohibits hate propaganda, and that he had never been prosecuted for expressing his ideas. Counsel submits that the author's case is not comparable to J.R.T. and W.G. v. Canada, but rather draws comparison to the case of Vogt v. Germany, decided by the European Court of Human Rights. Counsel submits that the order destroyed the author's right to teach which was his professional livelihood.

5.4 Counsel further argues that, if the Board of Inquiry was of the opinion that there was an anti-Semitic atmosphere among the students in the school district, it should have recommended measures to discipline the students committing such acts of discrimination. The author denies that his views are racist, any more than atheism is racist or Judaism itself. It is further stated that criticism of Judaism or Zionism for religious reasons cannot be equated to anti-Semitism. The author feels discriminated against, because he is convinced that a teacher publicly attacking Christianity would not be disciplined in a similar way.

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

6.1 In its submission of 7 September 1998, the State party offers its observations both on the admissibility and the merits of the communication. The State party submits that the communication should be deemed inadmissible both for lack of substantiation and because it is incompatible with the relevant provisions of the Covenant. Alternatively, in the event that the Committee decides that the author's communication is admissible, the State party submits that it has not violated articles 18 and 19 of the Covenant.

6.2 The State party submits that the communication should be deemed inadmissible as incompatible with the provisions of the Covenant because the publications of the author fall within the scope of article 20, paragraph 2, of the Covenant, i.e. they must be considered "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence". In this regard, the State party points out that the Supreme Court of Canada found that the publications denigrated the faith and beliefs of Jewish people and called upon "true Christians" to not merely question the validity of those beliefs but to hold those of the Jewish faith in contempt. Furthermore, it is stated that the author identified Judaism as the enemy and called upon "Christians" to join in the battle.

6.3 The State party argues that articles 18, 19 and 20 of the Covenant must be interpreted in a consistent manner, and that the State party therefore cannot be in violation of articles 18 or 19 by taking measures to comply with article 20. It is submitted that freedom of religion and expression under the Covenant must be interpreted as not including the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. In this regard, the State party also invokes article 5, paragraph 1, of the Covenant, and submits that to interpret articles 18 and 19 as protecting the dissemination of anti-Semitic speech cloaked as Christianity denies Jews the freedom to exercise their religion, instils fear in Jews and other religious minorities and degrades the Christian faith.

6.4 With regard to the interpretation and application of article 20, the State party makes reference to the jurisprudence of the Committee, in particular the case of J.R.T. and W.G. v. Canada. The State party notes that the author's counsel contends that the present case is distinguishable from J.R.T. and W.G. v. Canada in that Mr. Ross did not introduce his opinions into the workplace; his opinions were of a religious nature; and none of his publications were contrary to Canadian law. While acknowledging that there are some factual differences between the two cases, the State party submits that there are also important similarities between them and that the rule concerning the inadmissibility of communications incompatible with the Covenant is equally applicable. First, it is pointed out that both communications concerned anti-Semitic

speech. The State party denies counsel's contention that the author's views are of a religious nature, and argues that they promote anti-Semitism and cannot be said to be religious beliefs or part of the Christian faith. Second, it is pointed out that both communications involved orders made pursuant to human rights legislation and not charges under the hate propaganda provisions of the Criminal Code. In this regard, it is submitted that counsel is wrong when he argues that the author's writings and public statements were not contrary to Canadian law. The writings and statements did, according to the State party, contravene the New Brunswick Human Rights Act as they were found to be discriminatory and to have created a poisoned environment in the school district.

6.5 The State party further submits that the author's claim under article 18 should be held inadmissible as being incompatible with the Covenant also because his opinions "do not express religious beliefs and certainly do not fall within the tenets of Christian faith". The State party argues that the author has "cloaked his views under the guise of the Christian faith but in fact his views express hatred and suspicion of the Jewish people and their religion". It is further submitted that the author has not provided any evidence showing how anti-Semitic views are part of the Christian faith, and that no such evidence would be forthcoming. Similarly, it is asserted that the author's expressions are not manifestations of a religion, as he did not publish them for the purpose of worship, observance, practice or teaching of a religion.

6.6 Lastly on the compatibility of the communication with the provisions of the Covenant, the State party invokes article 18, paragraphs 2 and 4, and claims that States parties under these provisions have an obligation to ensure that teachers within their public education systems promote respect for all religions and beliefs and actively denounce any forms of bias, prejudice or intolerance. The State party argues that if it were to permit the author to continue teaching, it could be in violation of these provisions for impeding the rights of Jewish students to express their faith and to feel comfortable and self-confident in the public school system. Thus, it is submitted that the author's claim under article 18 should be held inadmissible as being incompatible also with article 18, paragraphs 2 and 4, of the Covenant.

6.7 Furthermore, the State party submits that both the claim under article 18 and the claim under article 19 should be held inadmissible on the ground that the author has not submitted sufficient evidence to substantiate a prima facie claim. Noting that the author only provided the Committee with copies of his own submissions to the Supreme Court and the decisions of the courts, the State party argues that beyond making the bald assertion that the decision of the Supreme court infringes the author's rights under articles 18 and 19, the communication provides no specificity of terms sufficient to support its admissibility. In particular, it is submitted that nowhere is the expansive and carefully reasoned decision of a unanimous nine-person Bench of the Supreme Court subjected to a sustained critique which would support the allegations made by the author.

6.8 As to the merits of the communication, the State party first submits that the author has not established how his rights to freedom of religion and expression have been limited or restricted by the Order of the Board of Inquiry as upheld by the Supreme Court. It is argued that the author is free to express his views while employed by the school board in a non-teaching position or while employed elsewhere.

6.9 Should the Committee find that the author's rights to freedom of religion and/or expression have been limited, the State party submits that these limitations are justified pursuant to article 18, paragraph 3, and 19, paragraph 3, respectively, as they were (i) provided by law, (ii) imposed for one of the recognized purposes, and (iii) were necessary to achieve its stated purpose. The State party submits that the analysis that must be undertaken by the Committee in this respect is very similar to that which was employed by the Supreme Court of Canada under section 1 of the Charter, and that the Committee should give considerable weight to the Court's decision.

6.10 With regard to the requirement that any limitations must be provided by law, the State party points out that the author's writings and public statements were found to be discriminatory and to have created a poisoned environment in violation of subsection 5 (1) of the New Brunswick Human Rights Act. It is further stated that the Order rendered by the Board of Inquiry was the remedy granted for the violation of subsection 5 (1) and was made pursuant to the Act.

6.11 With regard to the requirement that the limitation must be imposed for one of the purposes set out in articles 18, paragraph 3, and 19, paragraph 3, respective, the State party submits that the Order was imposed both for the protection of the fundamental rights of others and for the protection of public morals. As regards the first of these purposes, the State party makes reference to the case of Faurisson v. France, and submits that the Order was imposed on the author for the purposes of protecting the freedom of religion and expression and the right to equality of the Jewish community. The State party points out that the Supreme Court found that the Order protected the fundamental rights and freedoms of Jewish parents to have their children educated and for Jewish children to receive an education in the public school system free from bias, prejudice and intolerance. As regards the protection of public morals, the State party submits that Canadian society is multicultural and that it is fundamental to the moral fabric that all Canadians are entitled to equality without discrimination on the basis of race, religion or nationality.

6.12 Furthermore, the State party submits that any restrictions contained in the Order were clearly necessary to protect both the fundamental rights and freedoms of the Jewish people and Canadian values of respect for equality and diversity (public morals). The State party argues that the Order was necessary to ensure that children in the school district could be educated in a school system free from bias, prejudice and intolerance and in which Canadian values of equality and respect for diversity could be fostered. Furthermore, it is argued that it was necessary to remove the author from teaching in order to remedy the poisoned environment that his writings and public statements had created. In this last regard, the State party submits, as the Supreme Court found, that teachers occupy positions of trust and confidence and exert considerable influence over their students. As a result, it is submitted that teachers should be held to a higher standard with respect to their conduct while teaching, as well as during their off-duty activities. According to the State party, the author, as a public school teacher, was in a position to exert influence on young persons who did not yet possess the knowledge or judgement to place views and beliefs into a proper context. Moreover, the Board of Inquiry heard witnesses who testified that Jewish students experienced fear, injury to self-confidence and a reluctance to participate in the school system because of the author's statements. It is submitted that to remedy this situation, it was necessary to pass the Order.

6.13 Finally, the State party notes that the author draws comparison to the European Court of Human Rights' decision in Vogt v. Germany, but argues that that decision is distinguishable from the instant case in several important respects: First, the applicant in Vogt was an active member of a lawful political party for the stated purpose of promoting peace and combating neo‑fascism. Secondly, the nature of speech involved in the two cases is profoundly different, as the political expression in Vogt was not of a discriminatory character as in this case.

7.1 In his comments of 27 April 1999, the author reiterates that there exists no evidence that he ever expressed any of his opinions in class. Furthermore, there exists no evidence that his privately established beliefs had any effect on his workplace, i.e. that they created a poisoned environment. The Board of Inquiry only found that it was reasonable to anticipate such effects.

7.2 The author denies that his writings and statements undermine democratic values and that they are anti-Semitic. He also denies that they amount to advocacy of religious hatred that constitutes incitement to discrimination, hostility and violence. With regard to the State party's claim in relation to article 20 of the Covenant, the author submits that nowhere in his writings does he attempt to incite hatred, but rather to "defend his religion from the hatred of others". As regards article 5 of the Covenant, the author argues that he has never stated anything to the effect that Jews cannot practice their religion without restriction. On the contrary, it is submitted that the State party denied him the rights and freedoms recognized in the Covenant, when the Supreme Court ruled that the author cannot exercise his religious freedom and still be a teacher.

7.3 Furthermore, it is submitted that, as opposed to what is held by the State party, his statements express religious beliefs within the meaning of the Covenant. The author argues that his books were written "to defend the Christian Faith and Heritage against those who would denigrate them, and to encourage people to worship God, the Holy Trinity, as revealed in the Christian Faith". According to the author, "a perusal of his books point to his desire to work with other Christians to fulfil the ancient Christian mandate to establish the Kingship of Christ in Society". In this connection, the author also points out that the Supreme Court of Canada in its judgement held that the case involved religious expression, and that it found that the Order of the Board of Inquiry infringed the author's freedom of religion.

7.4 With regard to the State party's contention that the author has not submitted evidence as to how the Order, removing him from his teaching position but allowing him to express himself while in a non-teaching position, has impinged upon the freedoms to profess his religious beliefs or his freedom to express his opinions, the author claims that in June 1996 he was handed a lay off notice by his employer. The author claims that this is "severe punishment for exercising his constitutionally guaranteed rights to freedom of religion and freedom of expression", and implies that the notice was a result of, or at least linked to, the previous Order and Supreme Court judgement against him. It is further claimed that he received no compensation or severance pay, and that the only reason given was that the job had been terminated. The author states that he has never been interviewed for, nor offered another position even though he at the time had worked the school district for almost 25 years.

Further submission by the State party and the author's comments thereon

8.1 In its further submission of 28 September 1999, the State party notes the author's assertion that there was no evidence to support the finding of a "poisoned environment" within the School District attributable to the author's writings and public statements. To contest this assertion, the State party refers to the unanimous decision of the Supreme Court and, in particular, its findings quoted in paragraph 4.7 supra. The State party argues that the Supreme Court extensively reviewed the findings of fact as to discrimination and held that there was sufficient evidence. Thus, it is submitted, the author's assertions on this question must be rejected.

8.2 With regard to the issue of whether or not the author's opinions can be deemed religious beliefs within the meaning of the Covenant, the State party recognizes that the Supreme Court of Canada considered the opinions to be "religious beliefs" within the meaning of the Canadian Charter. However, the State party points out that even if Canadian law places virtually no limits on what it considers to be religious beliefs under section 2 of the Charter, it nevertheless protects against abuses of the right to religious freedom by the limitation clause in section 1. The State party argues that while this is the approach taken under Canadian law, the jurisprudence of the Human Rights Committee suggests that it has applied a narrower interpretation with regard to article 18. In particular, the State party refers to the case of M.A.B, W.A.T. and J.-A.Y.T. v. Canada. It is due to this difference in approach that the State party submits that the claim under article 18 should be held inadmissible under article 3 of the Optional Protocol, even if the similar, Canadian provisions are interpreted differently in domestic law.

8.3 With regard to the author's employment status, the State party notes that the author "has been laid off his job since 1996", but contests that this was "severe punishment for exercising his constitutionally guaranteed rights to freedom of religion and freedom of expression" or that it in any manner was connected to the previous actions against the author. It is submitted that the author's security of employment was only minimally affected by the Order of the Board of Inquiry, as upheld by the Supreme Court. It is stated that, after the Order was issued on 28 August 1991, the author was placed on leave without pay for one week only, from 4-10 September 1991. As of 11 September 1991, he was assigned to a full time position in the District office, providing assistance in the delivery of programmes to students "at risk". According to the State party, that position, originally in place for the duration of the 1991/92 school year was specifically based on the availability of funding, but in fact continued to be funded through to June 1996. The funding was lost as part of a general reorganization of the New Brunswick School System, effective 1 March 1996. This entailed the abolition of School Boards and the vesting of authority for the administration of the educational system in the Minister of Education, with a consequent reduction of both teaching and administrative positions throughout the Province.

8.4 In any event, it is submitted, the author's non-teaching position was specifically noted to fall under the terms and conditions of the collective agreement between the Board of Management and the New Brunswick Teachers' Federation, which allows for any employee to

complain of an improper lay off or dismissal and, if the complaint is upheld, to obtain relief. As the author has failed to seek such relief, it is submitted that he cannot now bring unsubstantiated allegations to the Committee that his loss of employment is a result of the Order or the judgement of the Supreme Court.

9. In his submission of 5 January 2000, the author reiterates his arguments with regard to the lack of direct evidence and again points out that his controversial views never formed part of his teaching. As regards his employment status, the author notes that the Supreme Court on 3 April 1996 upheld the Order against the School Board, following which he was to be offered a non-teaching post. It is submitted that he was never offered such a post, but that in fact he was laid off as of 1 July 1996. According to counsel, the fact that the author has not been offered further employment since his lay off in 1996 "is further evidence of the contempt with which the government" treats him.

Consideration of the admissibility of the communication

10.1 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.

10.2 The Committee notes that both parties have addressed the merits of the communication. This enables the Committee to consider both the admissibility and the 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 the grounds of admissibility referred to in the Optional Protocol.

10.3 With regard to the author's claim that his dismissal in 1996 was connected to the order of the Supreme Court and thus a result of the restrictions imposed upon his freedom of speech and freedom to manifest his religion, the Committee notes that the author has failed to make use of the domestic remedies that were in place. This part of the author's claim is thus inadmissible under article 5, paragraph 2 (b) of the Optional Protocol.

10.4 Insofar as the author claims that he is a victim of discrimination, the Committee considers that his claim is unsubstantiated, for purposes of admissibility, and thus inadmissible under article 2 of the Optional Protocol.

10.5 The Committee notes that the State party has contested the admissibility of the remainder of the communication on several grounds. First, the State party invokes article 20, paragraph 2, of the Covenant, claiming that the author's publications must be considered "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence". Citing the decision of the Committee in J.R.T. and W.G. v. Canada, the State party submits that, as a matter of consequence, the communication must be deemed inadmissible under article 3 of the Optional Protocol as being incompatible with the provisions of the Covenant.

10.6 While noting that such an approach indeed was employed in the decision in J.R.T. and W.G. v. Canada, the Committee considers that restrictions on expression which may fall within the scope of article 20 must also be permissible under article 19, paragraph 3, which lays down requirements for determining whether restrictions on expression are permissible. In applying those provisions, the fact that a restriction is claimed to be required under article 20 is of course relevant. In the present case, the permissibility of the restrictions is an issue for consideration on the merits.

10.7 Similarly, the Committee finds that the questions whether there were restrictions on the author's right to manifest religious belief and whether any such restrictions were permissible under article 18, paragraph 3, are admissible.

10.8 The State party has also submitted that the communication should be held inadmissible as the author has not submitted sufficient evidence to support a prima facie case. The State party argues that the author, instead of filing a detailed submission to the Committee, merely relied on the decisions of the domestic courts and his own submissions to the Supreme Court. Thus, it is held, the communication "provides no specificity of terms sufficient to support its admissibility". The Committee finds, however, that the author has stated his claims of violation clearly and that the adduced material sufficiently substantiates those claims, for purposes of admissibility. Thus, the Committee proceeds with the examination of the merits of the author's 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.

Consideration of the merits

11.1 With regard to the author's claim under article 19 of the Covenant, the Committee observes that, in accordance with article 19 of the Covenant, any restriction on the right to freedom of expression must cumulatively meet several conditions set out in paragraph 3. The first issue before the Committee is therefore whether or not the author's freedom of expression was restricted through the Board of Inquiry's Order of 28 August 1991, as upheld by the Supreme Court of Canada. As a result of this Order, the author was placed on leave without pay for a week and was subsequently transferred to a non-teaching position. While noting the State party's argument (see para. 6.8 supra) that the author's freedom of expression was not restricted as he remained free to express his views while holding a non-teaching position or while employed elsewhere, the Committee is unable to agree that the removal of the author from his teaching position was not, in effect, a restriction on his freedom of expression. The loss of a teaching position was a significant detriment, even if no or only insignificant pecuniary damage is suffered. This detriment was imposed on the author because of the expression of his views, and in the view of the Committee this is a restriction which has to be justified under article 19, paragraph 3, in order to be in compliance with the Covenant.

11.2 The next issue before the Committee is whether the restriction on the author's right to freedom of expression met the conditions set out in article 19, paragraph 3, i.e. that it must be provided by law, it must address one of the aims set out in paragraph 3 (a) and (b) (respect of the rights and reputation of others; protection of national security or of public order, or of public health or morals), and it must be necessary to achieve a legitimate purpose.

11.3 As regards the requirement that the restriction be provided by law, the Committee notes that there was a legal framework for the proceedings which led to the author's removal from a teaching position. The Board of Inquiry found that the author's off-duty comments denigrated the Jewish faith and that this had adversely affected the school environment. The Board of Inquiry held that the School Board was vicariously liable for the discriminatory actions of its employee and that it had discriminated against the Jewish students in the school district directly, in violation of section 5 of the New Brunswick Human Rights Act, due to its failure to discipline the author in a timely and appropriate manner. Pursuant to section 20 (6.2) of the same Act, the Board of Inquiry ordered the School Board to remedy the discrimination by taking the measures set out in paragraph 4.3 supra. In effect, and as stated above, the discrimination was remedied by placing the author on leave without pay for one week and transferring him to a non-teaching position.

11.4 While noting the vague criteria of the provisions that were applied in the case against the School Board and which were used to remove the author from his teaching position, the Committee must also take into consideration that the Supreme Court considered all aspects of the case and found that there was sufficient basis in domestic law for the parts of the Order which it reinstated. The Committee also notes that the author was heard in all proceedings and that he had, and availed himself of, the opportunity to appeal the decisions against him. In the circumstances, it is not for the Committee to re-evaluate the findings of the Supreme Court on this point, and accordingly it finds that the restriction was provided for by law.

11.5 When assessing whether the restrictions placed on the author's freedom of expression were applied for the purposes recognized by the Covenant, the Committee begins by noting that the rights or reputations of others for the protection of which restrictions may be permitted under article 19, may relate to other persons or to a community as a whole. For instance, and as held in Faurisson v. France, restrictions may be permitted on statements which are of a nature as to raise or strengthen anti-Semitic feeling, in order to uphold the Jewish communities' right to be protected from religious hatred. Such restrictions also derive support from the principles reflected in article 20 (2) of the Covenant. The Committee notes that both the Board of Inquiry and the Supreme Court found that the author's statements were discriminatory against persons of the Jewish faith and ancestry and that they denigrated the faith and beliefs of Jews and called upon true Christians to not merely question the validity of Jewish beliefs and teachings but to hold those of the Jewish faith and ancestry in contempt as undermining freedom, democracy and Christian beliefs and values. In view of the findings as to the nature and effect of the author's public statements, the Committee concludes that the restrictions imposed on him were for the purpose of protecting the "rights or reputations" of persons of Jewish faith, including the right to have an education in the public school system free from bias, prejudice and intolerance.

11.6 The final issue before the Committee is whether the restriction on the author's freedom of expression was necessary to protect the right or reputations of persons of the Jewish faith. In the circumstances, the Committee recalls that the exercise of the right to freedom of expression carries with it special duties and responsibilities. These special duties and responsibilities are of particular relevance within the school system, especially with regard to the teaching of young students. In the view of the Committee, the influence exerted by school teachers may justify restraints in order to ensure that legitimacy is not given by the school system to the expression of views which are discriminatory. In this particular case, the Committee takes note of the fact that the Supreme Court found that it was reasonable to anticipate that there was a causal link between the expressions of the author and the "poisoned school environment" experienced by Jewish children in the School district. In that context, the removal of the author from a teaching position can be considered a restriction necessary to protect the right and freedom of Jewish children to have a school system free from bias, prejudice and intolerance. Furthermore, the Committee notes that the author was appointed to a non-teaching position after only a minimal period on leave without pay and that the restriction thus did not go any further than that which was necessary to achieve its protective functions. The Human Rights Committee accordingly concludes that the facts do not disclose a violation of article 19.

11.7 As regards the author's claims under article 18, the Committee notes that the actions taken against the author through the Human Rights Board of Inquiry's Order of August 1991 were not aimed at his thoughts or beliefs as such, but rather at the manifestation of those beliefs within a particular context. The freedom to manifest religious beliefs may be subject to limitations which are prescribed by law and are necessary to protect the fundamental rights and freedoms of others, and in the present case the issues under paragraph 3 of article 18 are therefore substantially the same as under article 19. Consequently, the Committee holds that article 18 has not been violated.

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 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

H. Communication No. 806/1998, Thompson v. St. Vincent and the Grenadines (Views adopted on 18 October 2000, seventieth session)*

Submitted by: Mr. Eversley Thompson (represented by Mr. Saul Lehrfreund of Simons, Muirhead & Burton, London)

Alleged victim: The author

State party: St. Vincent and the Grenadines

Date of communication: 17 February 1998

Prior decisions: Special Rapporteur's combined rule 86/91 decision, transmitted to the State party on 19 February 1998 (not issued in document form)

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

Meeting on 18 October 2000,

Having concluded its consideration of communication No. 806/1998 submitted to the Human Rights Committee by Mr. Eversley Thompson 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 Eversley Thompson, a Vincentian national born on 7 July 1962. He is represented by Saul Lehrfreund of Simons, Muirhead and Burton, London. Counsel claims that the author is a victim of violations of articles 6 (1) and (4), 7, 10 (1), 14 (1) and 26 of the Covenant.

The facts as submitted by counsel

2.1 The author was arrested on 19 December 1993 and charged with the murder of D'Andre Olliviere, a four‑year old girl who had disappeared the day before. The High Court (Criminal Division) convicted him as charged and sentenced him to death on 21 June 1995. His appeal was dismissed on 15 January 1996. In his petition for special leave to appeal to the Judicial Committee of the Privy Council, counsel raised five grounds of appeal, relating to the admissibility of the author's confession statements and to the directions of the judge to the jury. On 6 February 1997, the Judicial Committee of the Privy Council granted leave to appeal, and after having remitted the case to the local Court of Appeal on one issue, it rejected the appeal on 16 February 1998. With this, all domestic remedies are said to have been exhausted.

2.2 At trial, the evidence for the prosecution was that the little girl disappeared on 18 December 1993 and that the author had been seen hiding under a tree near her home. Blood, faecal material and the girl's panty were found on the beach near the family's home. The girl's body was never found.

2.3 According to the prosecution, police officers apprehended the author at his home early in the morning of 19 December 1993. They showed him a red slipper found the evening before and he said that it was his. After having been brought to the police station, the author confessed that he had sexually abused the girl and then thrown the girl into the sea from the beach. He went with the policemen to point out the place where it happened. Upon return, he made a confession statement.

2.4 The above evidence by the police was subject to a voir dire during trial. The author contested ever having made a statement. He testified that the police officers had beaten him at home and at the police station, and that he had been given electric shocks and had been struck with a gun and a shovel. His parents gave evidence that they had seen him on 20 December 1993 with his face and hands badly swollen. After the voir dire, the judge ruled that the statement was voluntary and admitted it into evidence. Before the jury, the author gave sworn evidence and again challenged the statement.

The complaint

3.1 Counsel claims that the imposition of the sentence of death in the author's case constitutes cruel and unusual punishment, because under the law of St. Vincent the death sentence is the mandatory sentence for murder. He also points out that no criteria exist for the exercise of the power of pardon, nor has the convicted person the opportunity to make any comments on any information which the Governor‑General may have received in this respect. In this context, counsel argues that the death sentence should be reserved for the most serious of crimes and that a sentence which is indifferently imposed in every category of capital murder fails to retain a proportionate relationship between the circumstances of the actual crime and the offender and the punishment. It therefore becomes cruel and unusual punishment. He argues therefore that it constitutes a violation of article 7 of the Covenant.

3.2 The above is also said to constitute a violation of article 26 of the Covenant, since the mandatory nature of the death sentence does not allow the judge to impose a lesser sentence taking into account any mitigating circumstances. Furthermore, considering that the sentence is mandatory, the discretion at the stage of the exercise of the prerogative of mercy violates the principle of equality before the law.

3.3 Counsel further claims that the mandatory nature of the death sentence violates the author's rights under article 6 (1) and (4).

3.4 Counsel also claims that article 14 (1) has been violated because the Constitution of St. Vincent does not permit the Applicant to allege that his execution is unconstitutional as inhuman or degrading or cruel or unusual. Further, it does not afford a right to a hearing or a trial on the question whether the penalty should be either imposed or carried out.

3.5 Counsel submits that the following conditions in Kingstown prison amount to violations of articles 7 and 10 (1) in relation to the author. He is detained in a cell measuring 8 feet by 6 feet; there is a light in his cell that remains constantly lit 24 hours a day; there is no furniture or bedding in his cell; his only possessions in his cell are a blanket and a slop pail and a cup; there is no adequate ventilation as there is no window in his cell; sanitation is extremely poor and inadequate; food is of bad quality and unpalatable and his diet consists of rice every day; he is allowed to exercise three times a week for half an hour in the dormitory. Counsel also alleges that the conditions in prison are in breach of the domestic prison rules of St. Vincent and the Grenadines. Counsel also alleges that the author's punishment is being aggravated by these conditions.

3.6 Counsel further argues that the author's detention in these conditions renders unlawful the carrying out of his sentence of death.

3.7 Counsel also claims a violation of article 14 (1) because no legal aid is available for constitutional motions and the author, who is indigent, is therefore denied the right of access to court guaranteed by section 16 (1) of the Constitution.

The Committee's request for interim measures of protection

4.1 On 19 February 1998, the communication was submitted to the State party, with the request to provide information and observations in respect of both admissibility and merits of the claims, in accordance with rule 91, paragraph 2, of the Committee's rules of procedure. The State party was also requested, under rule 86 of the Committee's rules of procedure, not to carry out the death sentence against the author, while his case was under consideration by the Committee.

4.2 On 16 September 1999, the Committee received information to the effect that a warrant for the author's execution had been issued. After having sent an immediate message to the State party, reminding it of the rule 86 request in the case, the State party informed the Committee that it was not aware of having received the request nor the communication concerned. Following an

exchange of correspondence between the Special Rapporteur for New Communications and the

State party's representatives, and after a constitutional motion had been presented to the High Court of St. Vincent and the Grenadines, the State party agreed to grant the author a stay of execution in order to allow the Committee to examine his communication.

The State party's submission

5.1 By submission of 16 November 1999, the State party notes that the author has sought redress for his grievances by way of constitutional motion, which was dismissed by the High Court on 24 September 1999. The Court rejected declarations sought by counsel for the author that he was tried without due process and the protection of the law, that the carrying out of the death sentence was unconstitutional because it constituted inhuman or degrading punishment, that the prison conditions amounted to inhuman and degrading treatment, and that the author had a legal right to have his petition considered by the United Nations Human Rights Committee. The State party submits that, in order to expedite the examination by the Committee, it will raise no objection to the admissibility of the communication for reasons of non‑exhaustion of domestic remedies.

5.2 The State party submits that the mandatory nature of the death penalty is allowed under international law. It explains that a distinction is made in the criminal law in St. Vincent and the Grenadines between different types of unlawful killing. Killings which amount to manslaughter are not subject to the mandatory death penalty. It is only for the offence of murder that the death sentence is mandatory. Murder is the most serious crime known to law. For these reasons the State party submits that the death penalty in the present case was imposed in accordance with article 6 (2) of the Covenant. The State party also denies that a violation of article 7 occurred in this respect, since the reservation of the death penalty to the most serious crime known to law retains the proportionate relationship between the circumstances of the crime and the penalty. The State party likewise rejects counsel's claim that there has been discrimination within the meaning of article 26 of the Covenant.

5.3 The State party also notes that the author had a fair trial, and that his conviction was reviewed and upheld by the Court of Appeal and the Privy Council. Accordingly, the death penalty imposed upon the author does not constitute arbitrary deprivation of his life within the meaning of article 6 (1) of the Covenant.

5.4 As to the alleged violation of article 6 (4) of the Covenant, the State party notes that the author has the right to seek pardon or commutation and that the Governor General may exercise the prerogative of mercy pursuant to sections 65 and 66 of the Constitution in the light of advice received from the Advisory Committee.

5.5 With regard to prison conditions and treatment in prison, the State party notes that the author has not shown any evidence that his conditions of detention amount to torture or cruel, inhuman or degrading treatment or punishment. Nor is there any evidence that he was treated in violation of article 10 (1) of the Covenant. According to the State party, the general statements made in the communication do not evidence any specific breach of the relevant articles.

Moreover, the State party notes that this matter was considered by the High Court when hearing the constitutional motion, and that the Court rejected it. The State party refers to the Committee's constant jurisprudence that the Committee is not competent to re‑evaluate the facts and evidence considered by the Court, and concludes that the author's claim should be rejected. The State party further refers to the Committee's jurisprudence that prolonged periods of detention cannot be considered to constitute cruel, inhuman or degrading treatment if the convicted person is merely availing himself of appellate remedies.

5.6 The State party also argues that even if there had been a violation of the author's rights in relation to prison conditions, this would not render the carrying out of the death sentence unlawful and a violation of articles 6 and 7 of the Covenant. In this context, the State party makes reference to the Privy Council's decision in Thomas and Hilaire v. Attorney-General of Trinidad and Tobago, where the Privy Council considered that even if the prison conditions constituted a breach of the appellants constitutional rights, commutation of the sentence would not be the appropriate remedy and the fact that the conditions in which the condemned man had been kept prior to execution infringed his constitutional rights did not make a lawful sentence unconstitutional.

5.7 As to counsel's claim that the author's right to access to the constitutional court was violated, the State party notes that the author has indeed presented and pursued a constitutional motion in the High Court, during which he was represented by experienced local counsel. After his motion was dismissed, the author gave notice of appeal. On 13 October 1999, he withdrew his appeal. During these proceedings he was again represented by the same counsel. The State party submits that this is evidence that there has been no conduct on the part of the State which has had the practical effect of denying the author access to court.

Counsel's comments

6.1 In his comments, counsel maintains that the author's death sentence violates various provisions of the Covenant because he was sentenced to death without the sentencing judge considering and giving effect to his character, his personal circumstances or those of the crime. In this connection, counsel refers to the report by the Inter‑American Commission on Human Rights in the case of Hilaire v. Trinidad and Tobago.

6.2 With respect to the prerogative of mercy, counsel argues that the State party has not appreciated that the right to apply for pardon must be an effective right. In the author's case, he cannot effectively present his case for mercy and thus the right to apply for mercy is theoretical and illusory. The author cannot participate in the process, and is merely informed of the outcome. According to counsel, this means that the decisions on mercy are taken on an arbitrary basis. In this connection, counsel notes that the Advisory Committee does not interview the prisoner or his family. Moreover, no opportunity is given to the condemned person to respond to possible aggravating information which the Advisory Committee may have in its possession.

6.3 With regard to the prison conditions, counsel produces an affidavit sworn by the author, dated 30 December 1999. He states that his cell in Kingstown prison, where he was detained from 21 June 1995 to 10 September 1999, was 8 feet by 6 feet in size, and that the only articles

with which he was supplied in his cell were a blanket, a slop pail, a small water container and a bible. He slept on the floor. In the cell there was no electric lighting, but there was an electric light bulb in the corridor adjacent to the cell, which was kept on night and day. He states that he was unable to read because of the poor lighting. He was allowed exercise for at least three times a week in the corridor adjacent to his cell. He did not exercise in the open air and did not get any sunlight. Guards were always present. The food was unpalatable and there was little variety (mainly rice). During a fire on 29 July 1999 caused by a prison riot, he was locked in his cell and only managed to save himself when other prisoners broke in through the roof. He is only allowed to wear prison clothes, which are rough on the skin. On 10 September 1999, he was placed in a cell in Fort Charlotte, an 18th century prison. The cell in which he is now held is moist and the floor is damp. He is supplied with a small mattress. The cell is dark night and day, as the light of the electric bulb in the corridor does not penetrate into the cell. He is given exercise daily but inside the building and he does not get any sunlight. Because of the damp conditions, his legs started swelling and he reported this to the authorities, who took him to hospital for examination on 29 December 1999. He adds that he was scheduled to be hanged on 13 September 1999 and that he was taken from his cell to the gallows and that his lawyer was able to obtain a stay of execution only fifteen minutes before the scheduled execution. He states that he has been traumatized and disoriented.

6.4 Concerning the author's right of access to court, counsel submits that the fact that the author was fortunate enough to persuade counsel to take his recent constitutional case pro bono does not relieve the State party of its obligation to provide legal aid for constitutional motions.

Consideration of admissibility

7.1 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.

7.2 The Committee notes that it appears from the facts before it that the author filed a constitutional motion before the High Court of St. Vincent and the Grenadines. The Committee considers therefore that the author has failed to substantiate, for purposes of admissibility, his claim under article 14 (1) of the Covenant, that the State party denied the author the right of access to court in this respect.

7.3 The Committee considers that the author has sufficiently substantiated, for purposes of admissibility, that the remaining claims may raise issues under articles 6, 7, 10 and 26 of the Covenant. The Committee proceeds therefore without further delay to the consideration of the merits of these claims.

Consideration of the merits

8.1 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.

8.2 Counsel has claimed that the mandatory nature of the death sentence and its application in the author's case, constitutes a violation of articles 6 (1), 7 and 26 of the Covenant. The State party has replied that the death sentence is only mandatory for murder, which is the most serious crime under the law, and that this in itself means that it is a proportionate sentence. The Committee notes that the mandatory imposition of the death penalty under the laws of the State party is based solely upon the category of crime for which the offender is found guilty, without regard to the defendant's personal circumstances or the circumstances of the particular offence. The death penalty is mandatory in all cases of "murder" (intentional acts of violence resulting in the death of a person). The Committee considers that such a system of mandatory capital punishment would deprive the author of the most fundamental of rights, the right to life, without considering whether this exceptional form of punishment is appropriate in the circumstances of his or her case. The existence of a right to seek pardon or commutation, as required by article 6, paragraph 4, of the Covenant, does not secure adequate protection to the right to life, as these discretionary measures by the executive are subject to a wide range of other considerations compared to appropriate judicial review of all aspects of a criminal case. The Committee finds that the carrying out of the death penalty in the author's case would constitute an arbitrary deprivation of his life in violation or article 6, paragraph 1, of the Covenant.

8.3 The Committee is of the opinion that counsel's arguments related to the mandatory nature of the death penalty, based on articles 6 (2), 7, 14 (5) and 26 of the Covenant do not raise issues that would be separate from the above finding of a violation of article 6 (1).

8.4 The author has claimed that his conditions of detention are in violation of articles 7 and 10 (1) of the Covenant, and the State party has denied this claim in general terms and has referred to the judgement by the High Court, which rejected the author's claim. The Committee considers that, although it is in principle for the domestic courts of the State party to evaluate facts and evidence in a particular case, it is for the Committee to examine whether or not the facts as established by the Court constitute a violation of the Covenant. In this respect, the Committee notes that the author had claimed before the High Court that he was confined in a small cell, that he had been provided only with a blanket and a slop pail, that he slept on the floor, that an electric light was on day and night, and that he was allowed out of the cell into the yard one hour a day. The author has further alleged that he does not get any sunlight, and that he is at present detained in a moist and dark cell. The State party has not contested these claims. The Committee finds that the author's conditions of detention constitute a violation of article 10 (1) of the Covenant. Insofar as the author means to claim that the fact that he was taken to the gallows after a warrant for his execution had been issued and that he was removed only fifteen minutes before the scheduled execution constituted cruel, inhuman or degrading treatment, the Committee notes that nothing before the Committee indicates that the author was not removed from the gallows immediately after the stay of execution had been granted. The Committee therefore finds that the facts before it do not disclose a violation of article 7 of the Covenant in this respect.

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 a violation of articles 6 (1) and 10 (1) of the Covenant.

10. Under article 2, paragraph 3 (a), of the Covenant, the State party is under the obligation to provide Mr. Thompson with an effective and appropriate remedy, including commutation. 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

APPENDIX

Individual opinion by Mr. David Kretzmer, co‑signed by Mr. Abdelfattah Amor,

Mr. Maxwell Yalden and Mr. Abdallah Zakhia (dissenting)

A. Past jurisprudence

1. Like many of my colleagues, I find it unfortunate that the Covenant does not prohibit the death penalty. However, I do not find this a reason to depart from accepted rules of interpretation when dealing with the provisions of the Covenant on the death penalty. I am therefore unable to agree with the Committee's view that by virtue of the fact that the death sentence imposed on the author was mandatory, the State party would violate the author's right, protected under article 6, paragraph 1, not to be arbitrarily deprived of his life, were it to carry out the sentence.

2. Mandatory death sentences for murder are not a novel question for the Committee. For many years the Committee has dealt with communications from persons sentenced to death under legislation that makes a death sentence for murder mandatory. (See, e.g., Communication No. 719/1996, Conroy Levy v. Jamaica; Communication No. 750/1996, Silbert Daley v. Jamaica; Communication No. 775/1997, Christopher Brown v. Jamaica.) In none of these cases has the Committee intimated that the mandatory nature of the sentence involves a violation of article 6 (or any other article) of the Covenant. Furthermore, in fulfilling its function under article 40 of the Covenant, the Committee has studied and commented on numerous reports of States parties in which legislation makes a death sentence for murder mandatory. While in dealing with individual communications the Committee usually confines itself to arguments raised by the authors, in studying State party reports the initiative in raising arguments regarding the compatibility of domestic legislation with the Covenant lies in the hands of the Committee itself. Nevertheless, the Committee has never expressed the opinion in Concluding Observations that a mandatory death sentence for murder is incompatible with the Covenant. (See, e.g., the Concluding Observations of the Committee of 19.1.97 on Jamaica's second periodic report, in which no mention is made of the mandatory death sentence).

It should also be recalled that in its General Comment No.6 that concerns article 6 of the Covenant, the Committee discussed the death penalty. It gave no indication that mandatory death sentences are incompatible with article 6.

The Committee is not bound by its previous jurisprudence. It is free to depart from such jurisprudence and should do so if it is convinced that its approach in the past was mistaken. It seems to me, however, that if the Committee wishes States parties to take its jurisprudence seriously and to be guided by it in implementing the Covenant, when it changes course it owes the States parties and all other interested persons an explanation of why it chose to do so. I regret that in its Views in the present case the Committee has failed to explain why it has decided to depart from its previous position on the mandatory death sentence.

B. Article 6 and mandatory death sentences

3. In discussing article 6 of the Covenant, it is important to distinguish quite clearly between a mandatory death sentence and mandatory capital punishment. The Covenant itself makes a clear distinction between imposition of a death sentence and carrying out the sentence. Imposition of the death sentence by a court of law after a trial that meets all the requirements of article 14 of the Covenant is a necessary, but insufficient, condition for carrying out the death penalty. Article 6, paragraph 4, gives every person sentenced to death the right to seek pardon or commutation of the sentence. It is therefore obvious that the Covenant expressly prohibits a mandatory death penalty. However, the question that arises in this case does not relate to mandatory capital punishment or a mandatory death penalty, but to a mandatory death sentence. The difference is not a matter of semantics. Unfortunately, in speaking of the mandatory death penalty the Committee has unwittingly conveyed the wrong impression. In my mind this has also led it to misstate the issue that arises. That issue is not whether a State party may carry out the death penalty without regard to the personal circumstances of the crime and the defendant, but whether the Covenant requires that courts be given discretion in determining whether to impose the death sentence for murder.

4. Article 6, paragraph 1, protects the inherent right to life of every human being. It states that no one shall be arbitrarily deprived of his life. Had this paragraph stood alone, a very strong case could have been made out that capital punishment itself is a violation of the right to life. This is indeed the approach which has been taken by the constitutional courts of two States when interpreting their constitutions (see the decision of the South African Constitutional Court in State v. Makwanyane [1995] 1 LRC 269; Decision No. 23/1990 (X.31) AB of the Hungarian Constitutional Court). Unfortunately, the Covenant precludes this approach, since article 6 permits the death penalty in countries which have not abolished it, provided the stringent conditions laid down in paragraphs 2, 4 and 5 and in other provisions of the Covenant are met. When article 6 of the Covenant is read in its entirety, the ineluctable conclusion must be that carrying out a death penalty cannot be regarded as a violation of article 6, paragraph 1, provided all these stringent conditions have been met. The ultimate question in gauging whether carrying out a death sentence constitutes violation of article 6 therefore hinges on whether the State party has indeed complied with these conditions.

5. The first condition that must be met is that sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the offence. In the present case the Committee does not expressly base its finding of a violation on breach of this condition. However, the Committee mentions that "mandatory imposition of the death penalty under the laws of the State party is based solely upon the category of crime for which the offender is found guilty" and that the "death penalty is mandatory in all cases of murder". While the Committee does not mention article 6, paragraph 2, in the absence of any other explanation it would seem that the Committee has doubts about the compatibility with the Covenant of imposition of the death sentence for murder (the category of crime for which the death sentence is mandatory in the law of the State party). One can only assume that these doubts are based on the fear that the category of murder may include crimes that are not the most serious. I find it quite disturbing that the Committee is prepared to intimate that cases of murder may not be a most serious crime. The Committee itself has stated that the right to life is the

supreme right (see General Comment No. 6). Intentional taking of another person's life in circumstances which give rise to criminal liability must therefore, by its very nature, be regarded as a most serious crime. From the materials presented to the Committee in this communication it appears that a person is guilty of the crime of murder under the law of the State party if, with malice aforethought, he or she causes the death of another. The State party has explained (and this has not been contested) that the crime of murder does not include "killings which amount to manslaughter (for example by reason of provocation or diminished responsibility)". In these circumstances every case of murder, for which a person is criminally liable, must be regarded as a most serious crime. This does not mean, of course, that the death penalty should be imposed, nor that a death sentence should be carried out, if imposed. It does mean, however, that imposition of the death sentence cannot, per se, be regarded as incompatible with the Covenant.

6. In determining whether a defendant on a charge of murder is criminally liable the court must consider various personal circumstances of the defendant, as well as the circumstances of the particular act which forms the basis of the crime. As has been demonstrated in the opinion of my colleague, Lord Colville, these circumstances will be relevant in determining both the mens rea and actus reus required for criminal liability, as well as the availability of potential defences to criminal liability, such as self‑defence. These circumstances will also be relevant in determining whether there was provocation or diminished responsibility, which, under the law of the State party, remove an act of intentional killing from the category of murder. As all these matters are part of the determination of the criminal charge against the defendant, under article 14, paragraph 1, of the Covenant they must be decided by a competent, independent and impartial tribunal. Were courts to be denied the power to decide on any of these matters, the requirements of article 14 would not be met. According to the jurisprudence of the Committee, in a case involving the death penalty this would mean that carrying out the death sentence would constitute a violation of article 6. It has not been argued that the above conditions were not complied with in the present case. Nevertheless, the Committee states that it would be a violation of the author's right not to be arbitrarily deprived of his life, if the State party were to carry out the death penalty "without regard to the defendant's personal circumstances or the circumstances of the particular offence". (See paragraph 8.2 of the Committee's Views.) As it has not been claimed that personal circumstances of the particular offence relevant to the criminal liability for murder of the author were not taken into account by the courts, it is obvious that the Committee is referring to other circumstances, which have no bearing on the author's liability for murder. Article 6, paragraph 4, of the Covenant does indeed demand that the State party have regard to such circumstances before carrying out sentence of death. There is absolutely nothing in the Covenant, however, that demands that the courts of the State party must be the domestic organ that has regard to these circumstances, which, as stated, are not relevant in determination of the criminal charge.

7. In many societies, the law lays down a maximum punishment for a given crime and courts are given discretion in determining the appropriate sentence in a given case. This may very well be the best system of sentencing (although many critics argue that it inevitably results in uneven or discriminatory sentencing). However, in dealing with the issue of sentencing, as with all other issues relating to interpretation of the Covenant, the question that the Committee must ask is not whether a specific system seems the best, but whether such a system is demanded under the Covenant. It is all too easy to assume that the system with which Committee members

are most familiar is demanded under the Covenant. But this is an unacceptable approach in interpreting the Covenant, which applies at the present time to 144 State parties, with different legal regimes, cultures and traditions.

8. The essential question in this case is whether the Covenant demands that courts be given discretion in deciding the appropriate sentence in each case. There is no provision in the Covenant that would suggest that the answer to this question is affirmative. Furthermore, an affirmative answer would seem to imply that minimum sentences for certain crimes, such as rape and drug‑dealing (accepted in many jurisdictions) are incompatible with the Covenant. I find it difficult to accept this conclusion.

Mandatory sentences (or minimum sentences, which are in essence mandatory) may indeed raise serious issues under the Covenant. If such sentences are disproportionate to the crimes for which they are imposed, their imposition may involve a violation of article 7 of the Covenant. If a mandatory death sentence is imposed for crimes that are not the most serious crimes, article 6, paragraph 2 of the Covenant is violated. However, whether such sentences are advisable or not, if all provisions of the Covenant regarding punishment are respected, the fact that the minimum or exact punishment for the crime is set by the legislature, rather than the court, does not of itself involve a violation of the Covenant. Carrying out such a sentence that has been imposed by a competent, independent and impartial tribunal established under law after a trial that meets all the requirements of article 14 cannot be regarded as an arbitrary act.

I am well aware that in the present case the mandatory sentence is the death sentence. Special rules do indeed apply to the death sentence. It may only be imposed for the most serious crimes. Furthermore, the Covenant expressly demands that persons sentenced to death be given the right to request pardon or commutation before the sentence is carried out. No parallel right is given to persons sentenced to any other punishment. There is, however, no provision in the Covenant that demands that courts be given sentencing discretion in death penalty cases that they do not have to be given in other cases.

In summary: there is no provision in the Covenant that requires that courts be given discretion to determine the exact sentence in a criminal case. If the sentence itself does not violate the Covenant, the fact that it was made mandatory under legislation, rather than determined by the court, does not change its nature. In death penalty cases, if the sentence is imposed for a most serious crime (and any instance of murder is, by definition, a most serious crime), it cannot be regarded as incompatible with the Covenant. I cannot accept that carrying out a death sentence that has been imposed by a court in accordance with article 6 of the Covenant after a trial that meets all the requirements of article 14 can be regarded as an arbitrary deprivation of life.

9. As stated above, there is nothing in the Covenant that demands that courts be given sentencing discretion in criminal cases. Neither is there any provision that makes sentencing in cases of capital offences any different. This does not mean, however, that a duty is not imposed on States parties to consider personal circumstances of the defendant or circumstances of the particular offence before carrying out a death sentence. On the contrary, a death sentence is different from other sentences in that article 6, paragraph 4, expressly demands that anyone

under sentence of death shall have the right to seek pardon or commutation and that amnesty, pardon or commutation may be granted in all cases. It must be noted that article 6, paragraph 4, recognizes a right. Like all other rights, recognition of this right by the Covenant imposes a legal obligation on States parties to respect and ensure it. States parties are therefore legally bound to consider in good faith all requests for pardon or commutation by persons sentenced to death. A State party that fails to do so violates the right of a condemned person under article 6, paragraph 4, with all the consequences that flow from violation of a Covenant right, including the victim's right to an effective remedy.

The Committee states that "existence of a right to seek a pardon or commutation does not secure adequate protection to the right to life, as these discretionary measures by the executive are subject to a wide range of other considerations compared to the appropriate judicial review of all aspects of a criminal case". This statement does not help to make the Committee's approach coherent. In order to comply with the requirements of article 6, paragraph 4, a State party is bound to consider in good faith all personal circumstances and circumstances of the particular crime which the condemned person wishes to present. It is indeed true that the decision‑making body in the State party may also take into account other factors, which may be considered relevant in granting the pardon or commutation. However, a court which has discretion in sentencing may also take into account a host of factors other than the defendant's personal circumstances or circumstances of the crime.

10. I may now summarize my understanding of the legal situation regarding mandatory death sentences for murder:

(a) The question of whether a death sentence is compatible with the Covenant depends on whether the conditions laid down in article 6 and other articles of the Covenant, especially article 14, are complied with;

(b) Carrying out a death sentence imposed in accordance with the requirements of article 6 and other articles of the Covenant cannot be regarded as arbitrary deprivation of life;

(c) There is nothing in the Covenant that demands that courts be given discretion in sentencing. Neither is there a special provision that makes sentencing in death penalty cases different from other cases;

(d) The Covenant expressly demands that States parties must have regard to particular circumstances of the defendant or the particular offence before carrying out a death sentence. A State party has a legal obligation to take such circumstances into account in considering applications for pardon or commutation. The consideration must be carried out in good faith and according to a fair procedure.

C. Violation of the author's rights in the present case

11. Even if I had agreed with the Committee on the legal issue I would have found it difficult to agree that the author's rights were violated in this case.

In the context of an individual communication under the Optional Protocol the issue is not the compatibility of legislation with the Covenant, but whether the author's rights were violated. (See, e.g., Faurisson v. France, in which the Committee stressed that it was not examining whether the legislation on the basis of which the author had been convicted was compatible with article 19 of the Covenant, but whether in convicting the author on the specific facts of his case the author's right to freedom of expression had been violated). In the present case the author was convicted of a specific crime: murder of a little girl. Even if the category of murder under the law of the State party may include some crimes which are not the most serious, it is clear that the crime of which the author was convicted is not among these. Neither has the author pointed to any personal circumstances or circumstances of the crime that should have been regarded as mitigating circumstances but could not be considered by the courts.

12. Finally I wish to emphasize that the Covenant imposes strict limitations on use of the death penalty, including the limitation in article 6, paragraph 4. In the present case, it has not been contested that the author has the right to apply for pardon or commutation of his sentence. An advisory committee must look into the application and make recommendations to the Governor‑General on any such application. Under the rules laid down by the Privy Council in the recent case of Neville Lewis et al v. Jamaica, the State party must allow the applicant to submit a detailed petition setting out the circumstances on which he bases his application, he must be allowed access to the information before the committee and the decision on the pardon or commutation must be subject to judicial review.

While the author has made certain general observations relating to the pardon or commutation procedures in the State party, he has not argued that he has submitted an application for pardon or commutation that has been rejected. He therefore cannot claim to be a victim of violation of his rights under article 6, paragraph 4, of the Covenant. Clearly, were the author to submit an application for pardon or commutation that was not given due consideration as required by the Covenant and the domestic legal system he would be entitled to an effective remedy. Were that remedy denied him the doors of the Committee would remain open to consider a further communication.

(Signed) David Kretzmer

(Signed) Abdelfattah Amor

(Signed) Maxwell Yalden

(Signed) Abdallah Zakhia

[Done 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.]

I. Communication No. 818/1998, Sextus v. Trinidad and Tobago

(Views adopted on 16 July 2001, seventy‑second session)*

Submitted by: Mr. Sandy Sextus (represented by counsel,

Mr. Saul Lehrfreund)

Alleged victim: The author

State party: Trinidad and Tobago

Date of communication: 23 April 1997 (initial submission)

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

Meeting on 16 July 2001,

Having concluded its consideration of communication No. 818/1998 submitted to the Human Rights Committee by Mr. Sandy Sextus 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, dated 23 April 1997, is Mr Sandy Sextus, a national of Trinidad and Tobago, presently an inmate of State Prison, Trinidad. He claims to be a victim of violations of Trinidad and Tobago of articles 2, paragraph 3, 7, 9, paragraph 3, 10, paragraph 1, 14, paragraphs 1, 3 (c) and 5, of the International Covenant on Civil and Political Rights. He is represented by counsel.

The facts as presented by the author

2.1 On 21 September 1988, the author was arrested on suspicion of murdering his mother‑in‑law on the same day. Until his trial in July 1990, the author was detained on pre‑trial remand at Golden Grove Prison, Arouca, in a cell measuring 9 feet by 6 feet which he shared with 7 to 11 other inmates. He was not provided with a bed, and forced to sleep on a concrete floor or on old cardboard and newspapers.

2.2 After a period of over 22 months, the author was brought to trial on 23 July 1990 in the High Court of Justice. On 25 July 1990, the author was convicted by unanimous jury verdict and sentenced to death for the murder charged. From this point (until commutation of his sentence), the author was confined in Port‑of‑Spain State Prison (Frederick Street) in a solitary cell measuring 9 feet by 6 feet, containing an iron bed, mattress, bench and table. In the absence of integral sanitation, a plastic pail was provided as toilet. A small ventilation hole measuring 8 inches by 8 inches, providing inadequate ventilation, was the only opening. In the absence of any natural light, the only light was provided by a fluorescent strip light illuminated 24 hours a day (located above the door outside the cell). Due to his arthritis, the author never left his cell save to collect food and empty the toilet pail. Due to stomach problems, the author was placed on a vegetable diet, and when these were not provided the author went without food. The author did not receive a response from the Ombudsman on a written complaint on this latter matter.

2.3 After a period of over 4 years and 7 months, on 14 March 1995, the Court of Appeal refused the author's application for leave to appeal. On 10 October 1996, the Judicial Committee of the Privy Council in London rejected the author's application for special leave to appeal against conviction and sentence. In January 1997, the author's death sentence was commuted to 75 years' imprisonment.

2.4 From that point, the author has been detained in Port‑of‑Spain Prison in conditions involving confinement to a cell measuring 9 feet by 6 feet together with 9 to 12 other prisoners, which overcrowding causes violent confrontations between prisoners. One single bed is provided for the cell and therefore the author sleeps on the floor. One plastic bucket is provided as slop pail and is emptied once a day, such that it sometimes overflows. Inadequate ventilation consists of a 2 foot by 2 foot barred window. The prisoner is locked in his cell, on average 23 hours a day, with no educational opportunities, work or reading materials. The location of the prison food‑preparation area, around 2 metres from where the prisoners empty their slop pails, creates an obvious health hazard. The contention is repeated that the provision of food does not meet the author's nutritional needs.

The complaint

3.1 The author's complaint centres on alleged excessive delays in the judicial process in his case, and the conditions of detention suffered by him at various stages in that process.

3.2 As to the allegation of delay, the author contends that his rights under articles 9, paragraph 3, and 14, paragraph 3 (c), were violated in that there was a 22‑month delay in bringing his case to trial. That was the period from his arrest on 21 September 1988, being the

day the offence for which he was convicted occurred, until the commencement of his trial on 23 July 1990. The author contends little investigation was performed by the police in his case.

3.3 The author cites the Committee's Views in Celiberti de Casariego v. Uruguay, Millan Sequeira v. Uruguay and Pinkney v. Canada, where comparable periods of delay were found to be in violation of the Covenant. Relying on Pratt Morgan v. Attorney‑General of Jamaica, the author argues that the State party is responsible for avoiding such periods of delay in its criminal justice system, and it is therefore culpable in this case. The author contends that the delay was aggravated by the fact that there was little investigation that had to be performed by the police, with one eyewitness providing direct testimony and three others providing circumstantial evidence. The only forensic evidence adduced at trial was a post‑mortem examination report and certificate of blood sample analysis.

3.4 The author also alleges violations of articles 14, paragraphs 1, 3 (c) and 5, in the unreasonably protracted delay of over 4 years and 7 months which elapsed before the Court of Appeal heard and dismissed the author's appeal against conviction. The author cites a variety of cases in which the Committee found comparable delays (as well as shorter ones) to breach the Covenant. The author states that a variety of approaches were made to the Registrar of the Court of Appeal, the Attorney‑General and the Ministry of National Security and the Ombudsman. He states that by the time the appeal was heard, he had still not received the copies of depositions, notes of evidence and the trial judge's summing up he had requested. The author submits that in assessing the reasonableness of the delay it is relevant that he was under sentence of death, and detained throughout in unacceptable conditions.

3.5 The second portion of the complaint relates to the various conditions of detention described above which the author experienced pre‑trial, post‑conviction and, currently, post‑commutation. These conditions are said to have been repeatedly condemned by international human rights organizations as breaching internationally accepted standards of minimum protection. The author claims that after his commutation, he remains in conditions of detention in manifest violation of, inter alia, a variety of both domestic Prison Rules standards and United Nations Standard Minimum Rules for the Treatment of Prisoners.

3.6 Relying on the Committee's General Comments 7 and 9 on articles 7 and 10, respectively, and on a series of communications where conditions of detention were found to violate the Covenant, the author argues that the conditions suffered by the author at each phase of the proceedings breached a minimum inviolable standard of detention conditions (to be observed regardless of a State party's level of development) and accordingly violated articles 7 and 10, paragraph 1. In particular, the author refers to the case of Estrella v. Uruguay, where the Committee relied, in determining the existence of inhuman treatment at Libertad Prison, in part on "its consideration of other communications … which confirms the existence of a practice of inhuman treatment at Libertad". In Neptune v. Trinidad and Tobago, the Committee found circumstances very similar to the present case incompatible with article 10, paragraph 1, and called on the State party to improve the general conditions of detention in order to avoid similar violations in the future. The author underscores his claim of violation of articles 7 and 10, paragraph 1, by reference to a variety of international jurisprudence finding inappropriately severe conditions of detention to constitute inhuman treatment.

3.7 Finally, the author alleges a violation of article 14, paragraph 1, in conjunction with article 2, paragraph 3, in that he is being denied the right of access to court. The author submits that the right to present a constitutional motion is not effective in the circumstances of the present case, owing to the prohibitive cost of instituting proceedings in the High Court to obtain constitutional redress, the absence of legal aid for constitutional motions and the well‑known dearth of local lawyers willing to represent applicants free of charge. The author cites the case of Champagnie et al. v. Jamaica to the effect that in the absence of legal aid, a constitutional motion did not constitute an effective remedy for the indigent author in that case. The author cites jurisprudence of the European Court of Human Rights for the proposition that effective right of access to a court may require the provision of legal aid for indigent applicants. The author submits this is particularly pertinent in a capital case, and thus argues the lack of legal aid for constitutional motions per se violates the Covenant.

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

4.1 By submission dated 6 September 1999, the State party responded contesting the admissibility and merits of the communication. As to the allegations of pre‑trial delay and delay in hearing appeal, contrary to articles 9, paragraph 3, and 14, paragraphs 3 (c) and 5, the State party argues that prior to the communication the author did not seek to challenge the time periods elapsing in bringing the case to trial. The nature of the breach is such that the author was aware of a possible breach at the latest at the date of trial, but the issue was not raised at that point or on appeal. The State party argues that authors should not be allowed to sleep on their rights for an extended period, only years later to present allegations of breach to the Committee. Accordingly, it is not unreasonable to expect authors to seek redress by way of constitutional motion or application to the Committee at the time alleged breach occurs rather than years later, and this part of the communication should be declared inadmissible.

4.2 As to the merits of the claims of delay, the State party contends that neither of the relevant periods were unreasonable in the circumstances then prevailing in the State party in the years immediately following an attempted coup. The increase in crime placed great pressures on the courts in that period, with backlogs resulting. Difficulties experienced in the timely preparation of complete and accurate court records caused delays in bringing cases to trial and in hearing appeals. The State party states that it has implemented procedural reforms to avoid such delays, including the appointment of new judges at trial and appellate level. Increases in financial and other resources, including computer‑aided transcription, have meant appeals are now being heard within a year of conviction. Regard should be paid to these improvements which have occurred.

4.3 As to the claims of inappropriate conditions of detention, in violation of articles 7 and 10, paragraph 1, the State party denies that the conditions under which the applicant was held when under sentence of death, and is now being held, violate the Covenant. The State party refers to similar allegations made by others in respect of conditions at the same prison, which were held to be acceptable by the courts of the State party and which, on the information available, the Committee found itself not in a position to make a finding of violation on when the matter came before it. The Privy Council, in the case of Thomas v. Baptiste, found that unacceptable prison conditions in that case, which breached Prison Rules, did not necessarily sink to the level

of inhuman treatment, and accepted the Court of Appeal's decision to that effect. The State party submits that these various findings in the courts of the State party, the Privy Council and the Committee should be preferred over the unsubstantiated and general submissions of the author.

4.4 As to the claim of a breach of the right in article 14, paragraph 1, to access to the courts, the State party denies any denial of access to the courts by way of constitutional motions to seek redress for breaches of fundamental rights. Nineteen condemned prisoners currently have constitutional motions before the courts, and so it is incorrect and misleading to suggest any breach of article 14, paragraph 1.

The author's comments on the State party's submissions

5.1 By submission dated 19 November 1999, the author responded to the State party's submissions. On the arguments regarding delay, the author points to a contradiction in the State party denying that unreasonable delay had occurred but pointing to commonplace problems in the administration of criminal justice during the relevant period. The author considers the State party to have conceded the various delays were unreasonable, as otherwise there would have been no need to make improvements to avoid such delays. The author also points to the Committee's decision in Smart v. Trinidad and Tobago holding that a period of over two years from arrest until trial violated articles 9, paragraph 3, and 14, paragraph 3 (c).

5.2 The author contends that the issues of delay could not have been brought to the Committee at an earlier stage, because only with the Privy Council's denial of leave to appeal on 10 October 1996 were all available domestic remedies exhausted. The author also claims that, in any event, no constitutional remedy for the delays was available, as the Privy Council had determined in DPP v. Tokai that the Constitution of Trinidad and Tobago, while providing a right to a fair trial, did not provide a right to a speedy trial or a trial within a reasonable time.

5.3 As to the claims of inappropriate conditions of detention, contrary to articles 7 and 10, paragraph 1, the author points out that the Privy Council's Thomas v. Baptiste decision relied on by the State party accepted that the appellants in that case were detained in cramped and foul‑smelling cells and were deprived of exercise or access to open air for long periods. When exercising in fresh air they were handcuffed. The Privy Council, by a majority, held that these conditions were in breach of Prison Rules and unlawful, but not necessarily cruel and inhuman treatment, stating that value judgement depended on local conditions both in and outside the prison. It considered that, although the conditions were "completely unacceptable in a civilized society", the cause of human rights would not be served to set such demanding standards that breaches were common.

5.4 The author points out that, while the Privy Council majority accepted lesser standards on the basis that third world countries "often fall lamentably short of the minimum which would be acceptable in more affluent countries", the Committee has insisted on certain minimum standards of imprisonment that must always be observed irrespective of the country's level of development. The author insists accordingly that a fundamental breach of irreducible minimum standards of treatment recognized among civilized nations does amount to cruel and inhuman treatment.

5.5 As to the claim of a right of access to the courts, the author relies on the Committee's admissibility decision in Smart v. Trinidad and Tobago that, in the absence of legal aid being available to enable pursuit of a constitutional remedy, it could not be considered an effective remedy in the circumstances. The author questions how many of the 19 constitutional cases the State party refers to were granted legal aid, stating that he understands most were represented pro bono (cases not generally taken by local lawyers).

Issues and proceedings before the Committee

6.1 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.

6.2 As to the author's allegations of delay, the Committee notes the State party's argument that domestic remedies have not been exhausted as (i) no issues of delay were raised at trial, or on appeal, and (ii) the author has not pursued a constitutional motion. The State party has not shown that raising issues of delay before the trial court or upon appeal could have provided an effective remedy. As to the State party's argument that a constitutional motion was and is available to the author, the Committee recalls its jurisprudence that for that remedy to be considered available to an indigent applicant, legal aid must be available. While the State party has supplied figures that this remedy is being exercised by other prisoners, the State party has failed to demonstrate that the remedy would be available to this particular author in the circumstances of indigency he raises. In any event, with respect to the claims of undue delay, the Committee notes that, according to the Privy Council's interpretation of the relevant constitutional provisions, there is no constitutional remedy available through which these allegations can be raised. The Committee finds therefore that it is not precluded under article 5, paragraph 2 (b), of the Optional Protocol from considering the communication.

6.3 As to the allegations concerning inappropriate conditions of detention in violation of articles 7 and 10, the Committee notes that the author has provided specific and detailed allegations on the conditions suffered by him in detention. Rather than responding to the individual allegations, the State party states simply that the author has not substantiated his allegations. In the circumstances, the Committee considers that the author has substantiated these claims sufficiently, for the purposes of admissibility.

7.1 Accordingly, the Committee finds the communication admissible and proceeds to an examination of the substance of those claims in the light of all the information made available to it by the parties, as required by article 5, paragraph 1, of the Optional Protocol.

7.2 As to the claim of unreasonable pre‑trial delay, the Committee recalls its jurisprudence that "[i]n cases involving serious charges such as homicide or murder, and where the accused is denied bail by the court, the accused must be tried in as expeditious a manner as possible". In the present case, where the author was arrested on the day of the offence, charged with murder and held until trial, and where the factual evidence was straightforward and apparently required little police investigation, the Committee considers that substantial reasons must be shown to justify a 22‑month delay until trial. The State party points only to general problems and

instabilities following a coup attempt, and acknowledges delays that ensued. In the circumstances, the Committee concludes that the author's rights under article 9, paragraph 3 and article 14, paragraph 3 (c), have been violated.

7.3 As to the claim of a delay of over four years and seven months between conviction and the judgement on appeal, the Committee also recalls its jurisprudence that the rights contained in article 14, paragraphs 3 (c) and 5, read together, confer a right to a review of a decision at trial without delay. In Johnson v. Jamaica, the Committee established that, barring exceptional circumstances, a delay of four years and three months was unreasonably prolonged. In the present case, the State party has pointed again simply to the general situation, and implicitly accepted the excessiveness of the delay by explaining remedial measures taken to ensure appeals are now disposed of within a year. Accordingly, the Committee finds a violation of article 14, paragraphs 3 (c) and 5.

7.4 As to the author's claims that the conditions of detention in the various phases of his imprisonment violated articles 7 and 10, paragraph 1, the Committee notes the State party's general argument that the conditions in its prisons are consistent with the Covenant. In the absence of specific responses by the State party to the conditions of detention as described by the author, however, the Committee must give due credence to the author's allegations as not having been properly refuted. As to whether the conditions as described violate the Covenant, the Committee notes the State party's arguments that its courts have, in other cases, found prison conditions in other cases satisfactory. The Committee cannot regard the courts' findings on other occasions as answering the specific complaints made by the author in this instance. The Committee considers, as it has repeatedly found in respect of similar substantiated allegations, that the author's conditions of detention as described violate his right to be treated with humanity and with respect for the inherent dignity of the human person, and are therefore contrary to article 10, paragraph 1. In the light of this finding in respect of article 10, a provision of the Covenant dealing specifically with the situation of persons deprived of their liberty and encompassing for such persons the elements set out generally in article 7, it is not necessary to separately consider the claims arising under article 7.

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 articles 9, paragraph 3, 10, paragraph 1, and 14, paragraphs 3 (c) and 5, 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. Sextus with an effective remedy, including adequate compensation. The State party is also under an obligation to improve the present conditions of detention of the author, or to release him.

10. On becoming a State party to the Optional Protocol, Trinidad and Tobago 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 Trinidad and Tobago's denunciation of the Optional Protocol became effective on 27 June 2000; 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 within 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 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

APPENDIX

Individual opinion of Committee member Mr. Hipólito Solari Yrigoyen, in accordance with rule 98 of the rules of procedure:

I should like to express an individual opinion with regard to paragraph 9, which I believe should read:

"In accordance with article 2, paragraph 3 (a), of the International Covenant on Civil and Political Rights, the State party is under an obligation to provide Mr. Sextus with an effective remedy, including adequate compensation. The State party is also under an obligation to release the author."

(Signed) Hipólito Solari Yrigoyen

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

J. Communication No. 819/1998, Kavanagh v. Ireland

(Views adopted on 4 April 2001, seventy‑first session)*

Submitted by: Mr. Joseph Kavanagh (represented by Mr. Michael Farrell)

Alleged victim: The author

State party: Ireland

Date of communication: 27 August 1998 (initial submission)

Date of decision on

admissibility and adoption

of Views: 4 April 2001

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

Meeting on 4 April 2001,

Having concluded its consideration of communication No. 819/1998 submitted to the Human Rights Committee by Joseph Kavanagh, 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, dated 27 August 1998, is Mr. Joseph Kavanagh, an Irish national, born 27 November 1957. The author alleges breaches by the Republic of Ireland of article 2, paragraphs 1 and 3 (a), article 4, paragraphs 1 and 3, article 14, paragraphs 1, 2 and 3, and article 26 of the Covenant. The Covenant and Optional Protocol entered into force for Ireland on 8 March 1990. The author is represented by counsel.

Background

2.1 Article 38 (3) of the Irish Constitution provides for the establishment by law of Special Courts for the trial of offences in cases where it may be determined, according to law, that the ordinary courts are "inadequate to secure the effective administration of justice and the preservation of public peace and order". On 26 May 1972, the Government exercised its power to make a proclamation pursuant to Section 35 (2) of the Offences Against the State Act 1939 (the Act) which led to the establishment of the Special Criminal Court for the trial of certain offences. Section 35 (4) and 5) of the Act provide that if at any time the Government or the Parliament is satisfied that the ordinary courts are again adequate to secure the effective administration of justice and the preservation of public peace and order, a rescinding proclamation or resolution, respectively, shall be made terminating the Special Criminal Court regime. To date, no such rescinding proclamation or resolution has been promulgated.

2.2 By virtue of section 47 (1) of the Act, a Special Criminal Court has jurisdiction over a "scheduled offence" (i.e. an offence specified in a list) where the Attorney‑General "thinks proper" that a person so charged should be tried before the Special Criminal Court rather than the ordinary courts. The scope of "scheduled offence" is set out in the Offences Against the State (Scheduled Offences) Order 1972 as encompassing offences under the Malicious Damage Act, 1861, the Explosive Substances Act, 1883, the Firearms Acts, 1925‑1971 and the Offences against the State Act, 1939. A further class of offences was added by Statutory Instrument later the same year, namely offences under section 7 of the Conspiracy and Protection of Property Act 1875. The Special Criminal Court also has jurisdiction over non‑scheduled offences where the Attorney‑General certifies, under section 47 (2) of the Act, that in his or her opinion the ordinary courts are "inadequate to secure the effective administration of justice in relation to the trial of such person on such charge". The Director of Public Prosecutions (DPP) exercises these powers of the Attorney‑General by delegated authority.

2.3 In contrast to the ordinary courts of criminal jurisdiction, which employ juries, Special Criminal Courts consist of three judges who reach a decision by majority vote. The Special Criminal Court also utilizes a procedure different from that of the ordinary criminal courts, including that an accused cannot avail himself or herself of preliminary examination procedures concerning the evidence of certain witnesses.

The facts as presented

3.1 On 2 November 1993, a serious and apparently highly‑organized incident took place in which the chief executive of an Irish banking company, his wife, three children and a baby‑sitter were detained and assaulted in the family home by a gang of seven members. The chief executive was thereafter induced, by threat of violence, to steal a very large amount of money from the bank concerned. The author admits having been involved in this incident, but contends that he himself had also been kidnapped by the gang prior to the incident and acted under duress and threat of violence to himself and his family.

3.2 On 19 July 1994, the author was arrested on seven charges related to the incident; namely false imprisonment, robbery, demanding money with menaces, conspiracy to demand money with

menaces, and possession of a firearm with intent to commit the offence of false imprisonment. Six of those charges were non‑scheduled offences, and the seventh charge (possession of a firearm with intent to commit the offence of false imprisonment) was a "scheduled offence".

3.3 On 20 July 1994 the author was charged directly before the Special Criminal Court with all seven offences by order of the Director of Public Prosecution (DPP), dated 15 July 1994, pursuant to section 47 (1) and (2) of the Act, for the scheduled offences and the non‑scheduled offences respectively.

3.4 On 14 November 1994, the author sought leave from the High Court to apply for judicial review of the DPP's order. The High Court granted leave that same day and the author had his application heard in June 1995. The author contended that the offences with which he was charged had no subversive or paramilitary connection and that the ordinary courts were adequate to try him. The author challenged the 1972 proclamation on the basis that there was no longer a reasonably plausible factual basis for the opinion on which it was grounded, and sought a declaration to that effect. He also sought to quash the DPP's certification in respect of the non‑scheduled offences, on the grounds that the DPP was not entitled to certify non‑scheduled offences for trial in the Special Criminal Court if they did not have a subversive connection. In this connection, he contended that the Attorney‑General's representation to the Human Rights Committee at its forty‑eighth session that the Special Criminal Court was necessitated by the ongoing campaign in relation to Northern Ireland gave rise to a legitimate expectation that only offences connected with Northern Ireland would be put before the Court. He further contended that the decision to try him before the Special Criminal Court constituted unfair discrimination against him.

3.5 On 6 October 1995, the High Court rejected all of the author's arguments. The Court held, following earlier authority, that the decisions of the DPP were not reviewable in the absence of evidence of mala fides, or that the DPP had been influenced by improper motive or policy. In the Court's view, certifying non‑scheduled offences of a non‑subversive or non‑paramilitary nature would not be improper. The Court concluded that a proper and valid decision was reasonably possible, and the certification was upheld. As regards the underlying attack upon the 1972 proclamation itself, the High Court considered that it was limited to examining the constitutionality of the Government's action in 1972 and the Court could not express a view on the Government's ongoing obligation under section 35 (4) to end the special regime. The High Court considered that for it to presume to quash the proclamation would be to usurp the legislative role in an area in which the courts had no role.

3.6 Concerning the contention that the author was subject to a mode of trial different from those charged with similar offences but who were not certified for trial before the Special Criminal Court, the High Court found that the author had not established that such a difference in treatment was invidious. Finally the High Court held that no utterance by a representative of the State before an international committee could alter the effect of a valid law or tie the discretion of the DPP exercised pursuant to that law.

3.7 On 24 October 1995, the author appealed to the Supreme Court. In particular, the author contended that the 1972 proclamation was intended to deal with subversive offences and the remit of the Special Criminal Court was never intended to encompass "ordinary crime". It was

further argued that the Government was under a duty to review and revoke the proclamation as soon as it was satisfied that the ordinary courts were effective to secure the effective administration of justice and the preservation of public peace and order.

3.8 On 18 December 1996, the Supreme Court dismissed the author's appeal from the decision of the High Court. The Supreme Court held that the Government's decision in 1972 to issue the proclamation was essentially a political decision, and was entitled to a presumption of constitutionality which had not been rebutted. The Supreme Court held that both Government and Parliament were under a duty under section 35 of the Act to repeal the regime as soon as they were satisfied that the ordinary courts were again adequate for their tasks. Although the existence of the Special Criminal Court could in principle be judicially reviewed, the Supreme Court considered that it had not been shown that maintenance of the regime amounted to an invasion of constitutional rights in the light of evidence that the situation was being kept under review and the Government remained satisfied as to its need.

3.9 Following its earlier jurisprudence in The People (Director of Public Prosecutions) v. Quilligan, the Supreme Court considered that the Act also allowed for the trial of "non‑subversive" offences by the Special Criminal Court, if the DPP was of the view that the ordinary courts were inadequate. With the dismissal of the appeal, the author claims therewith to have exhausted all possible domestic remedies within the Irish justice system in respect of these issues.

3.10 After denial of a series of bail applications, the author's trial before the Special Criminal Court commenced on 14 October 1997. On 29 October 1997, he was convicted of robbery, possession of a firearm, to wit a handgun, with intent to commit an indictable offence, namely false imprisonment, and demanding cash with menaces with intent to steal. The author was sentenced to terms of imprisonment of 12, 12 and 5 years respectively, backdated to run concurrently from 20 July 1994 (the date from which the author was in custody). On 18 May 1999, the Court of Criminal Appeal dismissed the author's application for leave to appeal against his conviction.

The complaint

4.1 The author claims that the DPP's order to try him before the Special Criminal Court violated the principles of fairness and full equality of arms protected by article 14, paragraphs 1 and 3. The author complains that he has been seriously disadvantaged compared to other persons accused of similar or equal criminal offences, who unlike him were tried by ordinary courts and therefore could avail themselves of a wider range of possible safeguards. The author emphasizes that in his case the trial by jury, as well as the possibility of preliminary examinations of witnesses, would be particularly important. The assessment of the credibility of several key witnesses would be the main issue of his case. Thus the author alleges to have been arbitrarily restrained and unequally treated in his procedural rights, since the DPP has not given any reasons or justification for his decision.

4.2 The author accepts that the right to be tried by jury and preliminarily to examine witnesses are not explicitly listed in article 14, paragraph 3, but states that the requirements of article 14, paragraph 3, only set out some but not always all requirements of fairness. He argues that the clear

intention of the article as a whole is to provide significant safeguards that are equally available to all. The author argues accordingly that these rights, which he states are key safeguards in the State party's jurisdiction, equally are protected by article 14.

4.3 The author further complains that the decision of the DPP pursuant to secion 47 of the Act was issued without any reason or justification and thereby violated the guarantee of article 14, paragraph 1, to a public hearing. The State party's highest court, the Supreme Court, had held in H v. Director of Public Prosecutions that the DPP cannot be compelled to give reasons for the decision, short of exceptional circumstances such as mala fides being shown. The author claims that a crucial decision in relation to his trial, namely the choice of procedure and forum, was made in secret and on the basis of considerations which were not revealed to him or to the public and which therefore were not open to any rebuttal.

4.4 Furthermore, the author alleges that the decision of the DPP violated the presumption of innocence protected by article 14, paragraph 2. He considers that the re‑installation of the Special Criminal Court by the Irish Government in 1972 was due to growing violence in Northern Ireland, with the intention to better insulate juries from improper influence and external interference. The author argues that the decision of the DPP involves a determination either that the author is a member of, or is associated with, a paramilitary or subversive group involved in the Northern Ireland conflict, or that he, or persons associated with him, are likely to attempt to interfere with or otherwise influence a jury if tried before an ordinary court. He also states that being detained until trial in these circumstances also involves a determination of some measure of guilt.

4.5 The author denies that he is, or ever was, associated with any paramilitary or subversive group. He argues that the decision of the DPP in his case therefore implies that he would have to be associated with the criminal gang responsible for the abduction on 2 November 1993, which would be likely to interfere with, or otherwise influence, the decision of a jury. The author denies his involvement in the criminal gang, which he sees as the main issue to be solved in the trial and which therefore could not be decided upon by the DPP in advance.

4.6 The author argues that the State party has failed to provide an effective remedy, as required by article 2. In the circumstances of his case, a decision raising clear issues under the Covenant has been made and is not subject to effective judicial remedy. With the Courts tying their own hands and restricting their scrutiny to exceptional, and almost impossible to demonstrate, reasons of mala fides, improper motives or considerations on the part of the DPP, it could not be said that an effective remedy existed. As the author does not contend any such exceptional circumstances exist, no remedy is available to him.

4.7 The author also alleges a violation of the principle of non‑discrimination under article 26, since he has been deprived, without objective reason, of important legal safeguards available to other accused persons charged with similar offences. In this regard, the author argues that the 1972

proclamation of the Irish Government re‑establishing the Special Criminal Court is a derogation

pursuant to article 4, paragraph 1, of certain rights protected by article 14 of the Covenant. He states that the situation of growing violence in Northern Ireland leading to the Government's decision has ceased and can no longer be characterized as a public emergency which threatens the life of the nation. The author argues that the continuing derogation from parts of the Covenant would therefore no longer be required. By maintaining the Special Criminal Court in existence, Ireland would be in violation of its obligations under article 4, paragraph 1.

4.8 Finally, the author alleges that Ireland has also breached its obligation under article 4, paragraph 3. He claims that by not renouncing its proclamation of 1972, Ireland has, at least by now, de facto or informally derogated from article 14 of the Covenant without notifying the other State parties to the Covenant as required.

The State party's observations with regard to the admissibility of the communication

5.1 The State party argues that the communication should be considered inadmissible under article 5, paragraph 2 (b), of the Optional Protocol for failure to exhaust domestic remedies. At the time of submission, the author had not prosecuted his appeal against conviction to the Court of Criminal Appeal. The State party also argues that aspects of the present complaint had not been brought before the local courts at all. The State party contends that the author never argued in the domestic courts that he did not receive a public hearing, or that his constitutional right to be presumed innocent had been violated. The State therefore argues that those aspects are inadmissible. Annexed to its submissions, the State party does provide a 1995 decision of its highest court, the Supreme Court, which held that the DPP decision did not violate the presumption of innocence. (In subsequent submissions, the State party admits that the issue of presumption of innocence was raised at both levels in the judicial review proceedings.)

5.2 The State party also argues at length that the author has enjoyed the full protection of the Covenant in relation to his arrest, detention, the charges against him and his trial. It further argues that various portions of the Covenant are inapplicable to the complaints, that the complaints are incompatible with the provisions of the Covenant, and that the complaints are insufficiently substantiated.

Author's comments on the State party's submissions on admissibility

6. In addition to responding to the State party's arguments on substantiation and applicability of the Covenant, the author comments on the exhaustion of domestic remedies. He indicates that he was pursuing an appeal against conviction and that such an appeal deals only with the evidence given at trial and the inferences to be drawn therefrom. He argues that the issues raised concerning the DPP certification and his unequal and unfair treatment were fully litigated, prior to his trial, all the way to the Supreme Court. In response to the State party's contentions that failure to receive a "public" hearing and breach of the presumption of innocence were not raised before the domestic courts, the author declares that the substance of these claims was fully argued throughout the judicial review proceedings.

The State party's observations with regard to the merits of the communication

7.1 The State party declares that its Constitution specifically permits the creation of special courts as prescribed by law. The State party notes that, following the introduction of a regular government review and assessment procedure on 14 January 1997, reviews taking into account the views of the relevant State agencies were carried out on 11 February 1997, 24 March 1998, and 14 April 1999, have concluded that the continuance of the Court was necessary, not only in view of the continuing threat to State security posed by instances of violence, but also of the particular threat to the administration of justice, including jury intimidation, from the rise of organized and ruthless criminal gangs, principally involved in drug‑related and violent crime.

7.2 The State party submits that the Special Criminal Court regime satisfies all the criteria set out in article 14 of the Covenant. The State party notes that neither article 14, nor the Committee's General Comment on article 14, nor other international standards require trial by jury or a preliminary hearing where witnesses could be examined under oath. The requirement, rather, is simply that the trial be fair. The absence of either or both of those elements does not, of itself, make a hearing unfair. Within many States, different trial systems may exist, and the mere availability of different mechanisms cannot of itself be regarded as a breach.

7.3 As to the author's allegation that his inability to examine witnesses preliminarily under oath violates article 14 guarantees of fair trial, the State party emphasizes that the parties were placed in the identical position, and therefore on an equal and level footing at the hearing. In any event, such a preliminary hearing serves simply to raise likely issues for cross‑examination at trial and has no impact on the trial itself.

7.4 Concerning the author's argument that his rights were breached in that he was tried by a Special Criminal Court on "ordinary" criminal charges, the State party argues that the proper administration of justice must be protected from threats which undermine it, including threats arising from subversive groups within society, from organized crime and the dangers of intimidation of jurors. In a case where such a threat to the integrity of the normal jury process exists, as the DPP had certified here, the accused's rights are in fact better protected by a bench of three impartial judges who are less vulnerable to improper external influence than a jury would be. The State party points out that an inadequacy of the ordinary courts, as to which the DPP must be satisfied before the Special Criminal Court can be invoked, may arise not merely from "political", "subversive" or paramilitary offences but also from "ordinary gangsterism or well financed and well organized drug dealing, or other situations where it might be believed that juries were for some corrupt reason, or by virtue of threats, or of illegal interference, being prevented from doing justice". The author's contention that his offence was not "political" as such is therefore not a bar to the Special Criminal Court being invoked.

7.5 The State party argues that the author was also afforded all the rights contained in article 14, paragraph 3, of the Covenant. These rights are enjoyed by all persons before an ordinary criminal court in Ireland, but also by all before the Special Criminal Court pursuant to section 47 of the 1939 Act.

7.6 Concerning the author's allegation that he did not have a "public" hearing as guaranteed by article 14, paragraph 1, because the DPP was not required to, and did not, give reasons for the decision certifying the ordinary courts as inadequate, the State party argues that the entitlement to a public hearing applies to the court proceedings, which in the Special Criminal Court too at all stages and at all levels were conducted openly and publicly. The right to a public hearing does not extend to the DPP's pre‑trial decisions. Nor would it be desirable to require the DPP's decision to be justified or explained, for that would open up enquiries into information of a confidential nature with security implications, would nullify the very purpose for which the Special Criminal Court was established and would not be in the overall public interest.

7.7 Regarding the author's allegation that his right to be presumed innocent in accordance with article 14, paragraph 2, was violated, the State party asserts that this presumption is a fundamental principle enshrined in Irish law, to which the Special Criminal Court must and does adhere. The

same burden of proof must be discharged in the Special Criminal Courts as in the ordinary criminal courts, that is, proof of guilt beyond all reasonable doubt. If this burden was not met, the author would therefore be entitled to an acquittal.

7.8 The State party notes that the accused successfully challenged one offence at the commencement of trial, was acquitted in respect of three offences, and was convicted with respect to a further three. More generally, the State party observes that of 152 persons indicted before the Special Criminal Court between 1992 and 1998, 48 pleaded guilty, 72 were convicted, 15 were acquitted and 17 had nolle prosequi entered. With respect to the author's trial, the issue was raised before the Court of Criminal Appeal, which held that, on the totality of evidence, the presumption of innocence had not been violated.

7.9 The State party argues that, given that these elements as a whole demonstrate that the process applied by the Special Criminal Court process is fair and consistent with article 14 of the Covenant, the DPP's decision to try the author before that Court cannot be a violation of article 14.

7.10 As to the author's allegations concerning unequal and arbitrary treatment contrary to article 26, the State party contends that all persons are treated alike under the statutory regime set up in the Act. All persons are equally subject to the DPP's assessment that the ordinary courts may not be adequate to secure the effective administration of justice and the preservation of public peace and order. Further, the author was treated identically to anyone else whose case had been certified by the DPP. Even if the Committee regards a distinction to have been made between the author and other persons accused of similar or equally serious offences, reasonable and objective criteria are applied in all cases, namely that the ordinary courts had been assessed as being inadequate in the particular case.

7.11 The State party claims, contrary to the author's assertion, that its police authorities believe that the author was a member of an organized criminal group, and points to the gravity of the crimes, the highly planned nature of the criminal operation, and the brutality of the offences. Even though the author was in custody before trial, a risk of jury intimidation from other members of the gang could not be excluded. Nothing has been supplied to suggest that this assessment by the DPP was taken in bad faith, directed by improper motive or policy, or was otherwise arbitrary.

7.12 Finally, as to the author's allegations that the State party has not provided an effective remedy for violations of rights as required by article 2, the State party observes that its Constitution guarantees extensive rights to individuals and that a number of violations were alleged by the author and pursued in the courts, through to the highest court in the land. The courts fully addressed the issues placed before them by the author, accepting some of the author's contentions and rejecting others.

7.13 The State party also rejects as misplaced the author's argument that it is derogating, de facto or informally, from the Covenant, pursuant to article 4. The State party argues that article 4 permits derogation in certain circumstances, but the State is not invoking that right here and it is not applicable.

The author's comments upon the State party's observations with regard to the merits of the communication

8.1 In response to the State party's argument that there could have been a risk of jury or witness intimidation from other members of the gang, supporting the DPP's decision to try the author before the Special Criminal Court, the author states that at no time has the State party disclosed the DPP's reasons for that decision. Moreover, the DPP never argued at any bail application that there existed a risk of intimidation by the author. In any event, for the DPP to decide that the author or others in the gang would engage in such conduct ‑ if indeed that was the reason for the decision ‑ would be for the DPP to prejudge the outcome of the trial. Nor was the author given any opportunity to rebut the DPP's assumption.

8.2 Concerning the State party's assertion that the author was indeed a member of an organized criminal group, the author takes strong exception, observing that this is the first occasion the State party has ever made such an assertion. Indeed, at a bail application to the court the police specifically disclaimed any such link, and, during trial, no evidence to that effect was adduced beyond the evidence of participation in the offences themselves. In any event, the State party does not state whether this was the reason for the DPP's decision; if it was, that decision prejudged what was a trial issue.

8.3 Regarding the State party's specific submissions on article 14, the author points out the Committee's observation in its General Comment No. 13 that the requirements of paragraph 3 of article 14 are minimum guarantees, the observance of which is not always sufficient to ensure the fairness of hearing guaranteed by paragraph 1.

8.4 With regard to the Government reviews of the Special Criminal Court carried out in February 1997, March 1998 and April 1999, the author observes that these reviews were unannounced, that no input was invited from the public, NGOs or professional bodies, and that no information was given about who carried out the reviews or the detailed reasons why the Government decided that the Court remained necessary. Accordingly, the author argues that the reviews appear to be purely internal, with no independent content, and thus of no real value as a safeguard.

8.5 Regarding the State party's contention that the Court remains necessary due, inter alia, to the rise of highly organized criminal gangs, often involved in drug and violent crime, the author points out that the 1972 proclamation was clearly issued in the context of "politically‑inspired violence" and that successive Government statements, including some made to the European Court of Human Rights in 1980 and the Human Rights Committee in 1993, confirm this. No other reason for the Court's establishment could have existed. Any threat from modern criminal gangs is outside the scope of the 1972 proclamation, and a new proclamation would be needed to deal with that threat. In any event, many cases involving drug dealing and violence by gangs are dealt with in ordinary courts, and there is no apparent reason why the author's case was treated differently from those others.

8.6 The author rejects the State party's contention that he was not disadvantaged by being denied a preliminary examination, as the prosecution was in the same position. The author states that the prosecution was able to deprive the author of that right, and did so after having already seen and interviewed the relevant witnesses, but the author was not able to deprive the prosecution of that right to a preliminary examination. Therefore, the author contends, there was no equality of arms.

8.7 Concerning the State party's assertion that there had been a "fair and public hearing", the author states that he does not argue that the trial proceedings themselves were not public, but that the DPP's decision, which was an integral and essential part of the determination of the charges, was not public. Nor was that hearing fair, for neither notice nor reasons were given, and there was no opportunity for rebuttal. Citing various decisions of the European Court of Human Rights which suggest that effective judicial review of decisions cannot be entirely negated by the invocation of security concerns, the author argues that in this case there was no real avenue for effective independent review. The courts had strictly limited their jurisdiction to examine the DPP's decisions.

8.8 As to the right to a be presumed innocent, the author argues that the DPP's decision to send him for trial before the Special Criminal Court was a part of the determination of the charges and that the DPP also is bound by this presumption. The DPP's decision, according to the author, effectively determined that the author was involved in a subversive organization or was a member of the gang carrying out the kidnapping. The author argues that being sent for trial in the Special Criminal Court sent a signal to the Court that he was part of a dangerous criminal gang, and it is difficult to believe this factor had no influence on the outcome.

8.9 In response to the State party's arguments on equal treatment before the law, the author argues that the State party's contention that he was treated the same way as are others charged before the Special Criminal Courts, only means that he was treated in the same way as the small number of others who were tried before the Special Criminal Court but not like the majority of persons charged with similar offences, who were tried before the ordinary courts. In any event, most of the other 18 persons tried by special courts were charged with subversive‑type offences. He was singled out to join this small group with no reasons given and with no effective means of challenging the decision to do so.

8.10 As to whether such differentiation is objective, reasonable and in pursuit of a legitimate aim under the Covenant, the author questions whether the continued use of the Court was appropriate in view of the sharp drop of paramilitary violence. Even if these procedures are a proportionate response to subversive activity, which the author does not concede, the question arises whether it is a legitimate response to non‑subversive activity. The author argues that is impossible to determine whether the differentiation is reasonable and since the DPP's criteria are unknown and the DPP was responsible for the prosecution.

8.11 As to the State party's argument that it was not relying on its right to derogate from the provisions of the Covenant under article 4, the author submits that, while the State party had not declared any state of emergency, the 1972 proclamation establishing the Special Criminal Court in effect introduced a measure appropriate only in an emergency. The author states that the condition for permissibility of such a measure ‑ that is, a threat to the life of the nation ‑ did not exist then and does not now. In any case, if the State party disclaims reliance on article 4, it cannot seek to justify its conduct under the exceptions there provided for.

Issues and proceedings before the Committee

9.1 Before considering any claim contained in a communication, the Human Rights Committee must decide, in accordance with rule 87 of its rules of procedure, whether the claim is admissible under the Optional Protocol to the Covenant.

9.2 As required under article 5, paragraph 2 (a), of the Optional Protocol, the Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement.

9.3 As to the State party's contention that available domestic remedies have not been exhausted, the Committee notes that the pre‑trial litigation on the DPP's decision was pursued through to the Supreme Court. Moreover, the author's appeal against conviction, raising trial issues affected by the DPP's decision, was rejected by the Court of Criminal Appeal. A complainant bringing the issues in question before the domestic courts need not use the precise language of the Covenant, for legal remedies differ in their form from State to State. The question is rather whether the proceedings in their totality raised facts and issues presently before the Committee. In the light of these proceedings, other controlling authority from the State party's courts and the absence of any suggestion that there are additional remedies available, the Committee accordingly finds that it is not precluded under article 5, paragraph 2 (b), of the Optional Protocol from considering the communication.

9.4 With respect to the author's claims under article 2, the Committee considers that the author's contentions in this regard do not raise issues additional to those considered under other articles invoked, which are considered below. With respect to the alleged violation of article 4, the Committee notes that the State party has not sought to invoke that article.

9.5 As to the State party's remaining arguments on admissibility, the Committee is of the view that these arguments are intimately linked with issues on the merits and cannot meaningfully be severed from a full examination of the facts and arguments presented. The Committee finds the communication admissible as far as it raises issues under articles 14 and 26 of the Covenant.

Consideration of the merits

10.1 The author claims a violation of article 14, paragraph 1, of the Covenant, in that, by subjecting him to a Special Criminal Court which did not afford him a jury trial and the right to examine witnesses at a preliminary stage, he was not afforded a fair trial. The author accepts that neither jury trial nor preliminary examination is in itself required by the Covenant, and that the absence of either or both of these elements does not necessarily render a trial unfair, but he claims that all of the circumstances of his trial before a Special Criminal Court rendered his trial unfair. In the Committee's view, trial before courts other than the ordinary courts is not necessarily, per se, a violation of the entitlement to a fair hearing and the facts of the present case do not show that there has been such a violation.

10.2 The author's claim that there has been a violation of the requirement of equality before the courts and tribunals, contained in article 14, paragraph 1, parallels his claim of violation of his right under article 26 to equality before the law and to the equal protection of the law. The DPP's decision to charge the author before the Special Criminal Court resulted in the author facing an extra‑ordinary trial procedure before an extra‑ordinarily constituted court. This distinction deprived the author of certain procedures under domestic law, distinguishing the author from others charged with similar offences in the ordinary courts. Within the jurisdiction of the State party, trial by jury in particular is considered an important protection, generally available to accused persons. Under article 26, the State party is therefore required to demonstrate that such a decision to try a person by another procedure was based upon reasonable and objective grounds. In this regard, the Committee notes that the State party's law, in the Offences Against the State Act, sets out a number of specific offences which can be tried before a Special Criminal Court at the DPP's option. It provides also that any other offence may be tried before a Special Criminal Court if the DPP is of the view that the ordinary courts are "inadequate to secure the effective administration of justice". The Committee regards it as problematic that, even assuming that a truncated criminal system for certain serious offences is acceptable so long as it is fair, Parliament through legislation set out specific serious offences that were to come within the Special Criminal Court's jurisdiction in the DPP's unfettered discretion ("thinks proper"), and goes on to allow, as in the author's case, any other offences also to be so tried if the DPP considers the ordinary courts inadequate. No reasons are required to be given for the decisions that the Special Criminal Court would be "proper", or that the ordinary courts are "inadequate", and no reasons for the decision in the particular case have been provided to the Committee. Moreover, judicial review of the DPP's decisions is effectively restricted to the most exceptional and virtually undemonstrable circumstances.

10.3 The Committee considers that the State party has failed to demonstrate that the decision to try the author before the Special Criminal Court was based upon reasonable and objective grounds. Accordingly, the Committee concludes that the author's right under article 26 to equality before the law and to the equal protection of the law has been violated. In view of this finding with regard to article 26, it is unnecessary in this case to examine the issue of violation of equality "before the courts and tribunals" contained in article 14, paragraph 1, of the Covenant.

10.4 The author contends that his right to a public hearing under article 14, paragraph 1, was violated in that he was not heard by the DPP on the decision to convene a Special Criminal Court. The Committee considers that the right to public hearing applies to the trial. It does not apply to pre‑trial decisions made by prosecutors and public authorities. It is not disputed that the author's trial and appeal were openly and publicly conducted. The Committee therefore is of the view that there was no violation of the right to a public hearing. The Committee considers also that the decision to try the author before the Special Criminal Court did not, of itself, violate the presumption of innocence contained in article 14, paragraph 2.

12. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy. The State party is also under an obligation to ensure that similar violations do not occur in the future: it should ensure that persons are not tried before the Special Criminal Court unless reasonable and objective criteria for the decision are provided.

13. Bearing in mind that, by becoming a party to the Optional Protocol, Ireland 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 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, within ninety days, information from the Government of Ireland about the measures taken to give effect to the Committee's Views. The State party is requested also to give wide publicity 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

APPENDIX

Individual opinion of Committee members Louis Henkin, Rajsoomer Lallah,

Cecilia Medina Quiroga, Ahmed Tawfik Khalil and Patrick Vella

1. While the complaint of the author can be viewed in the perspective of article 26 under which States are bound, in their legislative, judicial and executive behaviour, to ensure that everyone is treated equally and in a non‑discriminatory manner, unless otherwise justified on reasonable and objective criteria, we are of the view that there has also been a violation of the principle of equality enshrined in article 14, paragraph 1, of the Covenant.

2. Article 14, paragraph 1, of the Covenant, in its very first sentence, entrenches the principle of equality in the judicial system itself. That principle goes beyond and is additional to the principles consecrated in the other paragraphs of article 14 governing the fairness of trials, proof of guilt, procedural and evidential safeguards, rights of appeal and review and, finally, the prohibition against double jeopardy. That principle of equality is violated where all persons accused of committing the very same offence are not tried by the normal courts having jurisdiction in the matter, but are tried by a special court at the discretion of the Executive. This remains so whether the exercise of discretion by the Executive is or is not reviewable by the courts.

(Signed) Louis Henkin

(Signed) Rajsoomer Lallah

(Signed) Cecilia Medina Quiroga

(Signed) Ahmed Tawfik Khalil

(Signed) Patrick Vella

[Done 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.]

K. Communication No. 821/1998, Chongwe v. Zambia

(Views adopted on 25 October 2000, seventieth session)*

Submitted by: Mr. Rodger Chongwe

Alleged victim: The author

State party: Zambia

Date of communication: 7 November 1997 (initial submission)

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

Meeting on 25 October 2000,

Having concluded its consideration of communication No. 821/1998 submitted to the Human Rights Committee by Mr. Rodger Chongwe under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into consideration 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 Rodger Chongwe, born on 2 October 1938, a citizen of Zambia. He claims to be victim of the violation of his rights under articles 6 and 14 of the International Covenant for Civil and Political Rights by Zambia, and raises the issue of security of person, which may be considered in relation to article 9.

Facts as submitted by the author

2.1 The author, a Zambian advocate and chairman of a 13‑party opposition alliance, states that in the afternoon of 23 August 1997, he and Dr. Kenneth Kaunda, for 27 years the President of Zambia, were shot and wounded by the police. The author states that the incident occurred in

Kabwe, a town some 170 kilometres north of Lusaka, while the author and Dr. Kaunda were to attend a major political rally to launch a civil disobedience campaign. He annexes reports by Human Rights Watch and Inter‑African Network for Human Rights and Development as part of his communication.

2.2 The author states that the police fired on the vehicle on which he was travelling, slightly wounding former President Kaunda and inflicting a life threatening wound on the author. The police force subsequently promised to undertake its own investigation. The Zambian Human Rights Commission was also said to be investigating the incident; but no results of any investigations have been produced.

2.3 He further refers to the Human Rights Watch Report for May 1998, Vol. 10, No. 2 (A), titled "Zambia, no model for democracy" which includes 10 pages on the so‑called "Kabwe shooting", confirming the shooting incident that took place by quoting witness statements and medical reports.

2.4 The report refers to the incident as follows:

"… When Kaunda and the Alliance leader Rodger Chongwe decided to leave by car, police attacked the car with tear gas and later live ammunition, possibly to try to stop their exit. According to eyewitnesses no warning was given before shots were heard. A small number of police that day were carrying AK‑47s, and senior officers had revolvers and a few G‑3s were held by mobile unit members. Most of the police were issued only batons and tear gas …"

2.5 In a referred interview with the Human Rights Watch, Kaunda's driver, Nelson Chimanga stated:

"… They (the police) fired tear gas at the car, one came into the car because I had opened a window to let out the smoke. When we got out of the smoke, I had to swerve past a police vehicle that tried to block our escape; just before the roundabout, I had to swerve to avoid a second vehicle blocking the road and then a third that was across the road. It was after this vehicle that we heard the bullet. Suddenly Rodger Chongwe was bleeding next to me. We gave him first aid in the vehicle, but because he was bleeding so much, did a U‑turn and returned to Kabwe General Hospital. Because of heavy paramilitary police presence I moved the vehicle around the back and we left for Lusaka at around 0300 hrs."

2.6 Former President Kenneth Kaunda described the incident as follows:

"A bullet fired by the Zambian police grazed the top of my head. The same bullet much more seriously injured Dr Chongwe …

It was then the police opened up with live ammunition. A bullet grazed my head and struck Dr Chongwe who was sitting in the front seat, below the right ear. My aide Anthony Mumbi was also slightly injured by shrapnel. I probably would have died except my bodyguard Duncan Mtonga, pushed me to the side when he heard the gun shots. I did not hear them."

2.7 One of the passengers in the vehicle, was the United Independence Party (UNIP)'s legal officer, Mwangala Zaloumis, who provided Human Rights Watch with a written statement dated 4 September 1997:

"… The vehicle was blocked three times in three different places by police vehicles. At about 200 meters from the Party Offices the presidential (Secretary's note: the former president's car) vehicle was fired at and at the same time tear gas was fired into the vehicle because the windows were open due to earlier firing of tear gas around at the bottom of the vehicle. There was a lot of confusion in the vehicle as a result of tear gas smoke. The next thing we saw was blood all over. Dr Chongwe had been hit on the cheek and was bleeding profusely. One of the security personnel who sat next to me was also bleeding. He had been hit by the shrapnel in three different places ..."

2.8 According to the Human Rights Watch report, President Chiluba on 26 August 1997, denied that the Kabwe shooting was a State‑sponsored assassination plot. He said that the Zambian police had instigated an investigation and that Nungu Sassasali, the commanding officer at Kabwe, was suspended. However, he rejected calls for an independent inquiry into the incident. The report refers to the ZNBC radio, stating that on 28 August, President Chiluba said the Government would not apologize over the Kabwe shooting as it could not be held responsible for it.

2.9 According to the said report quoting the Zambia Daily Mail, Home Affairs Minister Chitalu Sampa on 31 August stated:

" We have been told that the bullet hit Dr Kaunda on the head, the same bullet went through Dr. Chongwe's cheek, the same bullet again hit the other person in the neck. Honestly, how can that be possible, so we can not conclusively say they were shot by the police."

Further, President Chiluba on 13 November, stated that:

"These two people were not shot. An AK 47 cannot leave a simple wound. Let them prove that they were (shot)."

The President then admitted that police fired in the air as they tried to break up the opposition rally.

2.10 The author states that he was admitted to the Kabwe hospital immediately after the shooting incident. The Human Rights Watch report, cites a medical report by the Kabwe Hospital to the Permanent Secretary, Ministry of Health, Lusaka, stating:

"Local examination revealed puncture wound on the right cheek communicating with a bleeding, open wound on the upper aspect of the neck."

Furthermore, a medical report from St John of God Hospital in Australia, where the author took refuge, dated 3 October 1997, states that:

"A small metallic foreign body can be seen in the soft tissue beneath the skull base close to the skin surface consistent with the history of a gunshot wound … A small metallic fragment is noted in the soft tissues in the posterior aspect of the upper cervical region close to the skin surface …"

2.11 Human Rights Watch report that they showed the medical reports, photographs, and the Human Rights Commission video to Dr Richard Shepard of the Forensic Medicine Unit, St George's Hospital Medical School, London, for an expert assessment. Dr Shepard concluded as follows:

"From evidence that I've seen one can say for sure that a bullet hit the vehicle and then as it entered sprayed fragments throughout the vehicle, a bit like an angry swarm of bees. The injuries sustained by Kaunda, Chongwe and Kaunda's aide all are consistent with this. Rodger Chongwe is lucky to be alive. If the shrapnel had hit him a couple of inches to the left he would have been dead. The trajectory of the bullet hole is slightly downwards suggesting that who ever fired the shot was slightly elevated, from the back of a lorry, that sort of height. The angle does not suggest a shot from a tree or roof top."

2.12 Human Rights Watch also sought the expert opinion of a firearms and ballistics specialist, Dr Graham Renshew, who examined the photographs of the bullet hole in Kaunda's car, the photographs of a bullet cartridge found near the scene of the incident the day after the rally, and a photograph of a bullet that UNIP claimed was extracted from the vehicle after the incident. He explained the following, according to the Human Rights Watch:

"One bullet clearly penetrated the vehicle through the back … The bullet is consistent with the cartridge … The bullet, with its folds bent backwards, suggests it had pierced three layers of metal, consistent with penetrating the vehicle. It could be a non‑Russian AK 47 but is more likely to be a G‑3 or Belgian FAR …

The bullet hole in Kaunda's vehicle is consistent with the bullet and cartridge. With this information it might be possible to match the bullet with the firearm that fired it. While one cannot say this was an assassination attempt, one can say for sure that all the passengers in the car are lucky to be alive. If the bullet had hit a window it would have been able to kill somebody straight. It was slowed down and displaced by going through metal."

2.13 Secondly, in its report, submitted by the author, on the investigation of the Kabwe‑shooting, the Inter‑African Network for Human Rights and Development concluded that the shooting incident took place, and that an international tribunal should investigate the assassination attempt on the former President Kenneth Kaunda. This report, which is based on evidence taken from persons directly concerned in the incident, shows that the car in which the author was travelling, had left the centre of Kabwe. Before it did so, there is evidence that the local police commander had given orders to his men to fire on the car without giving any details as to the objective of such shooting; this information was relayed on the police radio network. At a roundabout at the outskirts of Kabwe, a police vehicle whose registration number and driver have been identified attempted to block the path of the car. The car's driver evaded this attempt, and there is evidence that two policemen standing on the back of the police vehicle opened fire on the car.

2.14 The author claims that on 28 November 1997, while on board a British Airways plane in Harare, he was told by airport and airline personnel that there was a VIP plane on the runway sent by the Zambian Government to collect him. He decided not to go back to Zambia, and has since this incident been residing in Australia. He will not return to Zambia, as he fears for his life.

2.15 From the information supplied by the author, he does not appear to have taken steps to exhaust domestic remedies, except for filing a claim for compensation to the Attorney‑General of the Republic of Zambia, Ministry of Legal Affairs. The claim was filed approximately one and a half month after the Kabwe shooting, that is on 15 October 1997. The author states that he has no access to effective domestic remedies.

The complaint

3. The author alleges that the incident on 23 August 1997 was an assassination attempt by the Zambian Government, and that it constitutes a violation of article 6 of the Covenant. The author further claims that the Zambian judges are not free from pressure in the performance of their duties, and that this implies a violation of article 14. He also raises the issue of security of person. He submits that an amount of US$ 2.5 million in damages would be reasonable compensation.

The Committee's admissibility consideration

4.1 The communication with its accompanying documents was transmitted to the State party on 3 July 1998. The State party has not responded to the Committee's request, under rule 91 of the rules of procedures, to submit information and observations in respect of the admissibility and the merits of the communication, despite several reminders addressed to it, the latest on 5 August 1999. The Committee recalls that it is implicit in the Optional Protocol that the State party makes available to the Committee all information at its disposal and regrets the lack of cooperation by the State party in the present case. 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.

4.2 Before considering the claims contained in the 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.

4.3 With respect to exhaustion of domestic remedies, the Committee notes that the author has argued that he has no access to domestic tribunals and that no effective domestic remedies are available to him. The State party has failed to contest before the Committee these allegations and thus due weight must thus be given to the author's claim. The Committee considers therefore that it is not precluded by article 5, paragraph 2 (b) of the Optional Protocol from examining the communication.

4.4 With respect to the author's claim of a violation of article 14 of the Covenant, the Committee notes that the information provided by the author does not substantiate for purposes of admissibility, the author's claim that he is a victim of a violation of article 14 of the Covenant. This part of the communication is therefore inadmissible under article 2 of the Optional Protocol.

4.5 The Committee considers that the author's remaining claims should be examined on the merits. Accordingly, the Committee finds the communication admissible and proceeds without delay to consider the merits of the author's claims under articles 6 (1) and 9 (1).

The Committee's consideration of the merits

5.1 The Human Rights Committee has examined the present case on the basis of the material placed before it by the parties, as required under article 5, paragraph 1, of the Optional Protocol.

5.2 The Committee observes that article 6, paragraph 1, entails an obligation of a State party to protect the right to life of all persons within its territory and subject to its jurisdiction. In the present case, the author has claimed, and the State party has failed to contest before the Committee that the State party authorized the use of lethal force without lawful reasons, which could have led to the killing of the author. In the circumstances, the Committee finds that the State party has not acted in accordance with its obligation to protect the author's right to life under article 6, paragraph 1, of the Covenant.

5.3 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. The interpretation of article 9 does not allow a State party to ignore threats to the personal security of non‑detained persons subject to its jurisdiction. In the present case, it appears that persons acting in an official capacity within the Zambian police forces shot at the author, wounded him, and barely missed killing him. The State party has refused to carry out independent investigations, and the investigations initiated by the Zambian police have still not been concluded and made public, more than three years after the incident. No criminal proceedings have been initiated and the author's claim for compensation appears to have been rejected. In the circumstances, the Committee concludes that the author's right to security of person, under article 9, paragraph 1 of the Covenant, has been violated.

6. 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 articles 6, paragraph 1, and 9, paragraph 1, of the Covenant.

7. Under article 2, paragraph 3 (a), of the Covenant, the State party is under the obligation to provide Mr Chongwe with an effective remedy and to take adequate measures to protect his personal security and life from threats of any kind. The Committee urges the State party to carry out independent investigations of the shooting incident, and to expedite criminal proceedings against the persons responsible for the shooting. If the outcome of the criminal proceedings reveals that persons acting in an official capacity were responsible for the shooting and hurting of the author, the remedy should include damages to Mr Chongwe. The State party is under an obligation to ensure that similar violations do not occur in the future.

8. 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

L. Communication No. 833/1998, Karker v. France

(Views adopted on 26 October 2000, seventieth session)*

Submitted by: Mrs. Samira Karker, on behalf of

her husband, Mr. Salah Karker

(represented by Mr. Jean‑Daniel Dechezelles)

Alleged victim: Mr. Salah Karker

State party: France

Date of communication: 27 March 1998 (initial submission)

Documentation references: Special Rapporteur's rule 86/91decision, transmitted to the State party on 18 September 1998 (not issued in document form)

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

Meeting on 26 October 2000,

Having concluded its consideration of communication No. 833/1998 submitted to the Human Rights Committee by Mrs. Samira Karker 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 Mrs. Samira Karker. She presents the communication on behalf of her husband, Salah Karker, a Tunisian citizen born on 22 October 1948, residing in France since 1987. She claims that her husband is a victim of violations by France of his Covenant rights. After the initial communication, the author was represented by Jean‑Daniel Dechezelles, barrister in Paris.

The facts

2.1 In 1987, Mr. Karker, who is co‑founder of the political movement Ennahdha, fled Tunisia, where he had been sentenced to death by trial in absentia. In 1988, the French authorities recognized him as a political refugee. On 11 October 1993, under suspicion that he actively supported a terrorist movement, the Minister of the Interior ordered him expelled from French territory as a matter of urgency. The expulsion order was not, however, enforced, and instead Mr. Karker was ordered to compulsory residence in the department of Finistère. On 6 November 1993, Mr. Karker appealed the orders to the Administrative Tribunal of Paris. The Tribunal rejected his appeals on 16 December 1994, considering that the orders were lawful. The Tribunal considered that from the information before it, it appeared that the Ministry of the Interior was in possession of information showing that Mr. Karker maintained close links with Islamic organizations which use violent methods, and that in the light of the situation in France the Minister could have concluded legally that Mr. Karker's expulsion was imperative for reasons of public security. It also considered that the resulting interference with Mr. Karker's family life was justifiable for reasons of ordre public. The Tribunal considered that the compulsory residence order, issued by the Minister in order to allow Mr. Karker to find a third country willing to receive him, was lawful, in accordance with article 28 of the decree of 2 November 1945, in view of the fact that Mr. Karker was a recognized political refugee and could not be returned to Tunisia. On 29 December 1997, the Council of State rejected Mr. Karker's further appeal.

2.2 Following the orders, Mr. Karker was placed in a hotel in the department of Finistère, then he was transferred to Brest. Allegedly because of media pressure, he was then transferred to St. Julien in the Loire area, and from there to Cayres, and subsequently to the South East of France. Lastly, in October 1995, he was assigned to Digne‑les‑Bains (Alpes de Haute Provence), where he has resided since. According to the order fixing the conditions of his residence in Digne‑les‑Bains, Mr. Karker is required to report to the police once a day. The author emphasizes that her husband has not been brought before the courts in connection with the suspicions against him.

2.3 The author states that she lives in Paris with her six children, a thousand kilometres away from her husband. She states that it is difficult to maintain personal contact with her husband. On 3 April 1998, Mr. Karker was sentenced to a suspended sentence of six months' imprisonment for having breached the compulsory residence order by staying with his family during three weeks.

The complaint

3. The author does not invoke any article of the Covenant, but it would appear that the facts may raise issues under articles 12 and 17, and possibly 9 and 13 of the Covenant.

State party's observations

4.1 By submission of 23 November 1998, the State party addresses both the admissibility and the merits of the communication.

4.2 As to the admissibility, the State party argues that the author of the communication has not justified that she is qualified to represent her husband. The State party refers to rule 90 (b) of the Committee's rules of procedure that a communication should be submitted by the victim personally or by his representative, and that a communication on behalf of a victim can be accepted when it appears that the individual in question is unable to submit the communication personally. In the present case, the author has advanced no circumstances to justify why her husband is not in a position to present personally a communication to the Committee, nor has she shown that she has received a mandate to represent him. The State party therefore requests the Committee to reject the communication as inadmissible.

4.3 Secondly, the State party argues that the communication is inadmissible for failure to exhaust domestic remedies, as far as the alleged violations of articles 9, 12 and 17 of the Covenant are concerned. In this context, the State party notes that whereas the expulsion order and the first compulsory residence order were appealed by Mr. Karker, the further compulsory residence orders, in particular the order of October 1995 to assign him to residence in Digne‑les‑Bains has not been subject of appeal. The State party adds that an appeal to the Administrative Tribunal is an available and effective remedy, which allows the judge to verify whether the compulsory residence order does not interfere more than necessary with the rights of the person, in particular with his right to family life.

4.4 Subsidiarily the State party addresses the merits of the communication and argues that no violation of the Covenant has occurred. First, the State party argues that article 9 of the Covenant is not applicable in Mr. Karker's case, because he is not subject to any arrest or detention. In this respect, the State party explains that under its domestic law a clear difference is made by the courts between measures to retain a person in a closed space, such as measures of detention, and measures to assign a person to residence, which give freedom of movement within determined boundaries. In Mr. Karker's case, first he was free to move within the department of Finistère, and at the moment, having been assigned to Digne‑les‑Bains, he is free to move within that community. According to the State party, Mr. Karker is thus not subject to any restriction of his liberty within the meaning of article 9 of the Covenant.

4.5 The State party acknowledges that the compulsory residence order limits Mr. Karker's freedom of movement within the meaning of article 12 of the Covenant. However, the State party argues that these restrictions are permissible under paragraph 3 of article 12, since they are provided by law (article 28 of the decree of 2 November 1945 as amended) and necessary for protection of public order, as was confirmed by the courts. The State party refers to the decision by the Administrative Tribunal of Paris that the Minister of the Interior could have concluded lawfully that Mr. Karker's expulsion was imperative for reasons of public security. Since the expulsion order could not be carried out because of Mr. Karker's refugee status, a certain measure of monitoring his activities had to be imposed. The State party concludes that the measures restricting Mr. Karker's freedom of movement have thus been imposed in his own interest, in order to safeguard his rights as political refugee.

4.6 The State party submits that its decision to expel Mr. Karker was in compliance with the requirements of article 13 of the Covenant. In this context, it notes that the order of 11 October 1993 was taken in accordance with the law (article 26 of the decree of 2 November 1945 as amended). The law provides that in case of necessity for reasons of State security or public security, an expulsion order can be pronounced without obtaining the recommendation of a commission of three magistrates. The State party invokes article 13, and argues that compelling reasons of national security would have allowed it not to provide Mr. Karker with any possibility of review. However, in fact, Mr. Karker did have access to the administrative tribunal and subsequently to the Council of State to contest the expulsion order taken against him. The courts confirmed that the order was lawful. According to the State party, the requirements of article 13 have thus been fully met.

4.7 With respect to article 17 of the Covenant, the State party argues that the compulsory residence order does not prevent Mr. Karker's family members from being with him. The members of his family are not subject to any restriction, and are free to join Mr. Karker in Digne‑les‑Bains. The separation of Mr. Karker from his family is due to the fact that his family have chosen their residence in Eaubonne, a suburb of Paris, instead of in Digne‑les‑Bains. The State party moreover states that Mr. Karker benefits from regular administrative authorizations to visit his family in the Parisian region. Further, the State party argues that in general the separation of family members within the context of compulsory residence orders does not violate article 17 of the Covenant. As to the alleged insecurity concerning Mr. Karker's situation, the State party submits that as long as he benefits from refugee status, the expulsion order against him cannot be executed.

Counsel's comments on the State party's submission

5.1 In his comments on the State party's submission, counsel contests the State party's argument that the communication should be declared inadmissible. As to the standing of the author to present the communication, counsel argues that there is no doubt that Mr. Karker is not in a position to present his communication personally. He further argues that the Committee's rules of procedure do not require an explicit mandate of representation as is the case in certain procedures of domestic law. Counsel explains that, in view of the insecurity of his place of residence, Mr. Karker has preferred to leave the documents pertaining to his case with his wife. Further, he is far away from his legal counsel which creates difficulties in communication. For these reasons, Mr. Karker consented to have his wife represent him before the Committee. In any event, counsel joins a letter from Mr. Karker giving his express approval of his representation by his wife.

5.2 With regard to the State party's argument that not all available domestic remedies have been exhausted, counsel submits that the legality of the compulsory residence order to Digne‑les‑Bains has been contested by Mr. Karker during the criminal proceedings against him before the first instance court in Pontoise, in April 1998. During these proceedings, where Mr. Karker was being charged for breach of the compulsory residence order, he based his defence on the unlawful nature of the order. Moreover, in May 1996, Mr. Karker applied to the first instance court in Digne‑les‑Bains to challenge the modalities of the compulsory residence order, since he was subject to additional around the clock surveillance by the police. His application was rejected by the court, and the Court of Appeal in Aix‑en‑Provence dismissed his appeal. Counsel further argues that since the compulsory residence order is dependent on the expulsion order, and since no more remedies exist to challenge the expulsion order, it would be useless to continue appealing each separate compulsory residence order. In this context, counsel recalls that under article 5 (2) (b) of the Optional Protocol only those remedies that provide a chance of success need to be exhausted. The appeal against the legality of the first compulsory residence order having been rejected, it is clear that no effective recourse was available against the following orders which were based on the same expulsion order.

5.3 On the merits, counsel contests the State party's argument that Mr. Karker has not been deprived of his liberty within the meaning of article 9 of the Covenant. Counsel argues that, like detention, compulsory residence equally limits freedom of movement. He recalls that the first order limited Mr. Karker's freedom of movement to 15.6 square kilometres, and in his opinion this constitutes a closed space seriously restricting the liberty of the person. In Digne‑les‑Bains Mr. Karker's liberty is restricted to 117.07 square kilometres, that is 0.02 per cent of French territory. Moreover, counsel points out that Mr. Karker is being followed by the police, which in itself constitutes an attack on his liberty.

5.4 With regard to article 12 of the Covenant, counsel acknowledges that the restriction of Mr. Karker's freedom of movement is provided by law, but challenges the State party's assertion that it is necessary for reasons of public order. He notes that the State party bases itself on the judgement by the Administrative Tribunal of Paris, concerning the lawfulness of the expulsion order of October 1993, as well as the first compulsory residence order of the same date, and argues that this conclusion by the tribunal at the time cannot be used to show justification for the present restriction of the author's freedom of movement. According to counsel, the State party has failed to show that at this moment the restriction is necessary for protection of public order. He emphasizes that a compulsory residence order imposed because of the impossibility to execute an expulsion order, is by its nature only an emergency measure and cannot be prolonged indefinitely. In this context, counsel observes that in 1994, the court in Paris convicted a newspaper, Minute, for having called Mr. Karker an active terrorist, since the newspaper could not substantiate its accusations that he was involved in attacks in Monastir and in an attempt to assassinate the prime minister of Tunisia. According to counsel, this shows that accusations of terrorism against Mr. Karker have been rejected by the courts. Nevertheless, the State party bases itself on these accusations to justify the restrictions on Mr. Karker's freedom of movement. In counsel's opinion, if the State party does not show evidence of links between Mr. Karker and terrorist organizations, the expulsion order and consequently the compulsory residence order are unlawful. Counsel further points out that paragraph 3 of article 12 lays down a further condition for restrictions of freedom of movement, namely that they be consistent with the other rights recognized in the Covenant. In this context, he argues that to assign a person to a residence hundreds of kilometres removed from his family, in rural areas, limiting his freedom of movement continuously since 1993, evidently constitutes violations of numerous rights recognized in the Covenant, such as the right to freedom of movement (arts. 9 and 12), the right to dignity of the human person (art. 10), the right to review (art. 13) and the right to family life (arts. 17 and 23).

5.5 Concerning article 13 of the Covenant, counsel notes that said provision only allows the elimination of review of an expulsion where compelling reasons of national security exist. He argues that the State party has not shown that these reasons existed, since in substantiation it only refers to the decisions of the Administrative Tribunal of Paris and the Council of State, which are being challenged by Mr. Karker. Counsel reiterates that the State party should show the

Committee that Mr. Karker's expulsion is necessary for protection of public order at present. He

further argues that, whatever urgency may have existed in 1993, is not likely still to exist at present. He recalls in this context that Mr. Karker has never been convicted by the French courts for acts of terrorism.

5.6 With regard to article 17 of the Covenant, counsel contests the State party's argument that the separation of Mr. Karker from his family is caused by his family's choice to reside in Eaubonne. Counsel notes that Mr. Karker and his family resided in Eaubonne at the time of the issuance of the expulsion, and consequently compulsory residence, order against him. Counsel recalls that Mr. Karker was assigned to five different localities within the first two years following the expulsion order. Because the authorities can issue a new compulsory residence order at any time, changing the place of residence, and consequently Mr. Karker never knows how long he is going to stay at a particular place, it is unreasonable to require his family to change residence and interrupt the social life and schooling of the children, every time when the authorities change the conditions of Mr. Karker's order. According to counsel, Mr. Karker has obtained permission only twice to join his family in Paris. Counsel concludes that there is no justification for the interference with Mr. Karker's family life.

5.7 As to Mr. Karker's sense of insecurity, counsel notes that Mr. Karker's refugee status is not permanent. But more seriously, in counsel's opinion, is the insecurity caused by the compulsory residence order, which can be changed without advance notice. According to counsel, the resulting insecure situation constitutes arbitrary interference with his family life. Counsel recalls that Mr. Karker has petitioned the Minister of the Interior on numerous occasions, most recently in April 1998, without ever having received a reply.

5.8 Counsel joins a letter from Mr. Karker, in which he challenges the expulsion order and consequent compulsory residence order against him, and states that they were issued for political reasons. He complains that the charges against him have never been specified, and that he has never been brought before a court to have these charges determined. According to him, Ennahdha, the movement of which he is a leader, has never practised or supported terrorism, and is one of the most moderate Islamic movements in the world. He argues therefore that the orders against him are arbitrary. Concerning the conditions of the compulsory residence order, Mr. Karker states that he was followed by police officers around the clock, from 30 October 1993 to 25 May 1996. This surveillance was renewed on 8 October 1997, some weeks before a visit of the President of Tunisia to France and again terminated after the return of the President to Tunisia. According to Mr. Karker, this shows that the decisions taken by the French administration in this regard are purely political.

5.9 Mr. Karker further contests the impartiality of the decisions taken by the courts concerning the lawfulness of the expulsion order and consequent compulsory residence order against him. He states that the French Government provided the courts with police documents, which were made up for the occasion, copied from the Tunisian police and not credible, but which the courts considered trustworthy. According to Mr. Karker, the courts' judgements are unjust and taken under political pressure. If the State party had evidence against him, it should have charged him accordingly and brought him before a judge.

5.10 Mr. Karker confirms that his wife acted with his consent when presenting his case to the Committee. He argues that it is clear that the compulsory residence order violates his right to family life, since he is forced to live in a hotel room, and he does not have the means to rent a lodging for his family. He also states that the State authorities refuse to pay the costs of his family's visits during the holidays. He further states that he does not want to impose on his family the same insecure life he is forced to lead by taking them with him to each new place of residence. He states that in the summer of 1995, while he was residing in St. Julien Chapteuil, his family rented a holiday bungalow for a week, close to the hotel where he was staying. However, he was not allowed to spend the nights with his family, but had to be in his hotel from 10 o'clock at night until 8 o'clock in the morning. He further states that at the time, he was followed everywhere by plain clothes armed policemen.

5.11 Mr. Karker complains that he is for all practical purposes kept in detention, since he cannot freely travel, work, lead a family life. Moreover, he complains that the length of his detention is unlimited, and that it has been imposed upon him without him ever having been convicted by the French courts.

Further submissions

6.1 Upon request from the Committee's Working Group, meeting prior to the Committee's sixty‑ninth session in July 2000, that the State party provides information with regard to the Minister's answer to Mr. Karker's request for modification of the expulsion order and the compulsory residence order of 28 April 1998, the State party notes that the Minister did not reply to the request. According to its administrative law, a silence of four months after a request to a competent authority is to be interpreted as a denial of the request. Such implicit denial can be appealed to the administrative tribunals.

6.2 With regard to the Working Group's question which measures the State party has taken to review regularly the situation of Mr. Karker and the necessity of the continuation of the order against him, the State party recalls that anyone subject to an expulsion order or a compulsory residence order can at any time request the administrative authorities for a modification of such order. On the occasion of such requests from Mr. Karker, the authorities may re‑examine his situation and review the necessity of the continuation of the measures against him.

6.3 As to the reasons for the continued compulsory residence order against Mr. Karker, the State party explains that the order was issued because of the impossibility to implement the expulsion order against him. According to the State party the compulsory residence is necessary for reasons of public order to prevent that Mr. Karker would engage in dangerous activities. For the State party, it is not possible to lift the order because of the persistence of the risks created by the movements of which Mr. Karker is considered to be an active supporter. The State party recalls that Mr. Karker may at any time apply to have the order against him lifted, and in case of refusal of his application, he may appeal to the administrative tribunals, which he has failed to do so far. The State party also submits that if necessary Mr. Karker is given permission to leave temporarily his place of residence. The State party also states that Mr. Karker is free to leave France for any other country of his choice where he will be admitted.

7. In his comments, counsel states that the State party's submission contains no new information. He forwards to the Committee copies of requests made on Mr. Karker's behalf by third parties and the negative replies of the Minster of the Interior thereto. He also adds a copy of refusals, dated 24 March 1999 and 22 February 2000, by the Prefect of the Alpes de Haute Provence to grant Mr. Karker permission to go to Eaubonne. He also adds newspaper articles showing public support for Mr. Karker's cause.

Issues and proceedings before the Committee

8.1 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.

8.2 The Committee has noted the State party's objections to admissibility ratione personae. The Committee considers that there is no reason to doubt the standing of the author, who is the alleged victim's wife and who has acted with his full consent, as has since been confirmed by him.

8.3 With respect to the domestic remedies, the Committee notes that Mr. Karker has exhausted all available remedies with respect to the expulsion order against him. Since the subsequent compulsory residence orders are all based on the expulsion order and on the impossibility to carry out the expulsion, and seeing that Mr. Karker's appeal against the first compulsory residence order was rejected by the courts, the Committee considers that Mr. Karker is not required to challenge each new compulsory residence order before the courts, in order to comply with the requirement of article 5 (2) (b) of the Optional Protocol.

8.4 In respect of the claim that Mr. Karker's right to privacy and family under article 17 of the Covenant has been violated, the Committee notes that this claim is based on the conditions of the compulsory residence order against him. The Committee notes that Mr. Karker has requested modification of these conditions on several occasions, and that, not having received any reply to his requests, according to French law after four months his requests were considered to be denied. The State party has explained and the author has not contested that Mr. Karker could have appealed the denial to the competent administrative tribunal, which however he has failed to do. The author's claim under article 17 of the Covenant is therefore inadmissible under article 5 (2) (b) of the Optional Protocol.

8.5 The Committee considers that the claim under article 9 of the Covenant is inadmissible ratione materiae, since the measures to which Mr. Karker is being subjected do not amount to deprivation of liberty such as contemplated by article 9 of the Covenant.

8.6 The Committee finds the communication admissible as far as it may raise issues under articles 12 and 13 of the Covenant and proceeds without delay to a consideration of its merits.

9.1 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.

9.2. The Committee notes that Mr. Karker's expulsion was ordered in October 1993, but that his expulsion could not be enforced, following which his residence in France was subjected to restrictions of his freedom of movement. The State party has argued that the restrictions to which the author is subjected are necessary for reasons of national security. In this respect, the State party produced evidence to the domestic courts that Mr. Karker was an active supporter of a movement which advocates violent action. It should also be noted that the restrictions of movement on Mr. Karker allowed him to reside in a comparatively wide area. Moreover, the restrictions on Mr. Karker's freedom of movement were examined by the domestic courts which, after reviewing all the evidence, held them to be necessary for reasons of national security. Mr. Karker has only challenged the courts' original decision on this question and chose not to challenge the necessity of subsequent restriction orders before the domestic courts. In these circumstances, the Committee is of the view that the materials before it do not allow it to conclude that the State party has misapplied the restrictions in article 12, paragraph 3.

9.3 The Committee observes that article 13 of the Covenant provides procedural guarantees in case of expulsion. The Committee notes that Mr. Karker's expulsion was decided by the Minister of the Interior for urgent reasons of public security, and that Mr. Karker was therefore not allowed to submit reasons against his expulsion before the order was issued. He did, however, have the opportunity to have his case reviewed by the Administrative Tribunal and the Council of State, and at both procedures he was represented by counsel. The Committee concludes that the facts before it do not show that article 13 has been violated in the present case.

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.]

Note

CONTENTS

Annex X

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. 547/1993, Mahuika et al. v. New Zealand

(Views adopted on 27 October 2000, seventieth session)*

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

The factual background

The complaint

The State party's observations

Authors' comments on the State party's submission

Issues and proceedings before the Committee

APPENDIX

Individual opinion by Mr. Martin Scheinin (partly dissenting)

B. Communication No. 630/1995, Mazou v. Cameroon

(Views adopted on 26 July 2001, seventy-second session)*

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

The facts as submitted by the author

The complaint

The State party's observations

The Committee's decision regarding admissibility

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

The author's observations on the merits of the communication

The Committee's deliberations on the merits

C. Communication No. 675/1995, Toala et al. v. New Zealand

(Views adopted on 2 November 2000, seventieth session)*

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

The facts submitted by the authors

The complaint

State party's comments and counsel's observations thereon

The Committee's admissibility decision

State party's submission on the merits and the authors' comments thereon

Review of admissibility

Examination of the merits

APPENDIX

Individual opinion by Abdelfattah Amor, Prafullachandra Natwarlal Bhagwati,

Pilar Gaitan de Pombo and Hipólito Solari Yrigoyen

D. Communication No. 687/1996, Rojas García v. Colombia

(Views adopted on 3 April 2001, seventy-first session)*

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

The facts as submitted by the author

The complaint

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

The Committee's decision on admissibility

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

Examination of the merits

APPENDIX

Individual opinion of Committee members

Nisuke Ando and Ivan A. Shearer

E. Communication No. 727/1996, Paraga v. Croatia

(Views adopted on 4 April 2001, seventy-first session)*

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

The facts and claims as submitted by the author

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

Admissibility considerations

The State party's information and the author's reply on the merits of the communication

Reconsideration of the admissibility decision and examination of the merits

F. Communication No. 736/1997, Ross v. Canada

(Views adopted on 18 October 2000, seventieth session)*

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

The facts as submitted by the author

Relevant domestic procedures and legislation

The procedure before the domestic tribunals

The complaint

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

Further submission by the State party and the author's comments thereon

Consideration of the admissibility of the communication

Consideration of the merits

APPENDIX

Individual opinion of Hipólito Solari Yrigoyen (dissenting)

G. Communication No. 790/1997, Cheban v. The Russian Federation

(Views adopted on 24 July 2001, seventy‑second session)*

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

Factual background

The complaint

The State party's response

Comments by the authors on the State party's response

Issues and proceedings before the Committee

Consideration on the merits