A/57/40 (Vol. II)

United Nations

 

Report

of the Human Rights Committee

Volume II

General Assembly

Official Records

Fifty‑seventh Session

Supplement No. 40 (A/57/40)

A/57/40 (Vol. II)

General  Assembly

Official Records

Fifty-seventh Session

Supplement No. 40 (A/57/40)

Report of the Human Rights Committee

Volume II

United Nations   New York, 2002

NOTE

            Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a United Nations document.

CONTENTS

                                                                                                                        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.    Attendance of sessions

                D.    Election of officers

                E.     Special rapporteurs

                F.     Working groups

                G.    Question of honoraria of Committee members

                H.    Related United Nations human rights activities

                I.      Meeting with States parties

                J.     Derogations pursuant to article 4 of the Covenant

                K.    General Comment under article 40, paragraph 4, of

                        the Covenant

                L.     Staff resources

                M.   Publicity for the work of the Committee

                N.    Documents and publications relating to the work of

                        the Committee

                O.    Future meetings of the Committee

                P.     Adoption of the report

GE.02-44849  (E)    051102    281102

CONTENTS (continued)

Chapter                                                                                                            Paragraphs       Page

      II.       METHODS OF WORK OF THE COMMITTEE UNDER

                ARTICLE 40 OF THE COVENANT:  NEW

                DEVELOPMENTS

                A.    Recent developments and 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 2001 to July 2002

                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

                1.     Ukraine

                2.     United Kingdom of Great Britain and Northern Ireland

                        and Overseas Territories

                3.     Switzerland

                4.     Azerbaijan

                5.     Georgia

                6.     Sweden

                7.     Hungary

                8.     New Zealand

CONTENTS (continued)

Chapter                                                                                                            Paragraphs       Page

     IV. (cont'd)

                9.     Viet Nam

                10.   Yemen

                11.   Moldova

      V.       CONSIDERATION OF COMMUNICATIONS UNDER

                THE OPTIONAL PROTOCOL

                A.    Progress of work

                B.    Growth of the Committee's caseload under the

                        Optional Protocol

                C.    Approaches to considering communications under the

                        Optional Protocol

                D.    Individual opinions

                E.     Issues considered by the Committee

                F.     Remedies called for under the Committee's Views

     VI.      FOLLOW-UP ACTIVITIES UNDER THE OPTIONAL

                PROTOCOL

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 26 JULY 2002

                A.    States parties to the International Covenant on Civil and Political

                        Rights

                B.    States parties to the Optional Protocol

CONTENTS (continued)

Annexes                                                                                                                                   Page

       I. (cont'd)

                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 OFFICES OF THE HUMAN RIGHTS

                COMMITTEE, 2001-2002

                A.    Membership of the Human Rights Committee

                B.    Officers

    III.       A.    FOLLOW-UP TO CONCLUDING OBSERVATIONS:  DECISIONS

                        ADOPTED BY THE HUMAN RIGHTS COMMITTEE ON

                        21 MARCH 2002

                B.    DECISIONS ON WORKING METHODS ADOPTED BY THE

                        HUMAN RIGHTS COMMITTEE ON 5 APRIL 2002

    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 UNDER ARTICLE 40, PARAGRAPH 4, OF

                THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL

                RIGHTS

                GENERAL COMMENT NO. 30 [75] ON REPORTING OBLIGATIONS

                OF STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT

   VII.       LIST OF STATES PARTIES' DELEGATIONS THAT PARTICIPATED

                IN THE CONSIDERATION OF THEIR RESPECTIVE REPORTS BY

                THE HUMAN RIGHTS COMMITTEE AT ITS SEVENTY-THIRD,

                SEVENTY-FOURTH AND SEVENTY-FIFTH SESSIONS

  VIII.       LIST OF DOCUMENTS ISSUED DURING THE REPORTING PERIOD                  

CONTENTS (continued)

Annexes                                                                                                                                   Page

    IX.       VIEWS OF THE HUMAN RIGHTS COMMITTEE UNDER

    ARTICLE 5, PARAGRAPH 4, OF THE OPTIONAL PROTOCOL

    TO THE INTERNATIONAL COVENANT ON CIVIL AND

    POLITICAL RIGHTS ..............................................................................................       12

                A.    Communication No. 580/1994, Ashby v. Trinidad and Tobago

            (Views adopted on 21 March 2002, seventy-fourth session) ...............................       12

                B.    Communication No. 641/1995,

                        Gedumbe v. Democratic Republic of the Congo

                        (Views adopted on 9 July 2002, seventy-fifth session) ........................................                24

        

                C.    Communication No. 667/1995, Ricketts v. Jamaica

            (Views adopted on 4 April 2002, seventy-fourth session)....................................       29

                        Appendix

                D.    Communication No. 677/1996, Teesdale v. Trinidad and Tobago

            (Views adopted on 1 April 2002, seventy-fourth session) ...................................       36

                        Appendix

                E.     Communication No. 678/1996, Gutierrez Vicanco v. Peru

            (Views adopted on 26 March 2002, seventy-fourth session) ...............................       46

                        Appendix

                F.     Communication No. 683/1996, Wanza v. Trinidad and Tobago

            (Views adopted on 26 March 2002, seventy-fourth session) ...............................       55

                G.    Communication No. 684/1996, Sahadath v. Trinidad and Tobago

            (Views adopted on 2 April 2002, seventy-fourth session)....................................       61

        

                H.    Communication No. 695/1996, Simpson v. Jamaica

            (Views adopted on 31 October 2001, seventy-third session) ..............................       67

                I.      Communication No. 721/1997, Boodoo v. Trinidad and Tobago

            (Views adopted on 2 August 2002, seventy-fourth session) ................................       76

                J.     Communication No. 728/1996, Sahadeo v. Guyana

            (Views adopted on 1 November 2001, seventy-third session) .............................       81

                        Appendix

CONTENTS (continued)

                                                                                                                                                Page

Annexes

                K.    Communication No. 747/1997, Des Fours v. The Czech Republic

            (Views adopted on 30 October 2001, seventy-third session) ..............................       88

        

                L.     Communication No. 763/1997, Lantsova v. Russia

            (Views adopted on 26 March 2002, seventy-fourth session) ...............................       96

                M.   Communication No. 765/1997, Fábryová v. The Czech Republic

            (Views adopted on 30 October 2001, seventy-third session) ............................     103

                        Appendix

                N.    Communication No. 774/1997, Brok v. The Czech Republic

            (Views adopted on 31 October 2001, seventy-third session) ............................     110

                O.    Communication No. 779/1997, Äärelä and Näkkäläjärvi v. Finland

            (Views adopted on 24 October 2001, seventy-third session) ............................     117

                       

                        Appendix

                P.     Communication No. 788/1997, Cagas v. The Philippines

            (Views adopted on 23 October 2001, seventy-third session) ............................     131

                        Appendix

                Q.    Communication No. 792/1998, Higginson v. Jamaica

            (Views adopted on 28 March 2002, seventy-fourth session) .............................     140

                R.    Communication No. 794/1998, Jalloh v. The Netherlands

            (Views adopted on 23 March 2002, seventy-fourth session) .............................     144

S.     Communication No. 802/1998, Rogerson v. Australia

            (Views adopted on 3 April 2002, seventy-fourth session) .................................     150

                T.     Communication No. 845/1998, Kennedy v. Trinidad and Tobago

            (Views adopted on 26 March 2002, seventy-fourth session) .............................     161

                        Appendix

CONTENTS (continued)

                                                                                                                                                Page

Annexes

     IX.  (cont'd)

                U.    Communication No. 848/1999, Rodríguez Orejuela v. Colombia

            (Views adopted on 23 July 2002, seventy-fifth session) ....................................     172

                V.    Communication No. 854/1999, Wackenheim v. France

            (Views adopted on 15 July 2002, seventy-fifth session).....................................     179

                W.   Communication No. 859/1999, Jiménez Vaca v. Colombia

            (Views adopted on 25 March 2002, seventy-fourth session)..............................     187

                X.    Communication No. 865/1999, Marín Gómez v. Spain

            (Views adopted on 22 October 2001, seventy-third session).............................     198

                        Appendix

                Y.    Communication No. 899/1999, Francis et al. v. Trinidad and Tobago

            (Views adopted on 25 July 2002, seventy-fifth session).....................................     206

                        Appendix

                Z.     Communication No. 902/1999, Joslin v. New Zealand

            (Views adopted on 17 July 2002, seventy-fifth session) ....................................     214

                        Appendix

                AA. Communication No. 906/2000, Chira Vargas v. Peru

            (Views adopted on 22 July 2002, seventy-fifth session) ....................................     228

                BB.  Communication No. 916/2000, Jayawardena v. Sri Lanka

            (Views adopted on 22 July 2002, seventy-fifth session) ....................................     234

                        Appendix

                CC. Communication No. 919/2000, Müller and Engelhard v. Namibia

            (Views adopted on 26 March 2002, seventy-fourth session) .............................     243

CONTENTS (continued)

                                                                                                                                                Page

Annexes

     IX.  (cont'd)

                DD. Communication No. 921/2000, Dergachev v. Belarus

            (Views adopted on 2 April 2002, seventy-fourth session) .................................     252

                EE.  Communication No. 923/2000, Mátyus v. Slovakia

            (Views adopted on 22 July 2002, seventy-fifth session) ....................................     257

                FF.  Communication No. 928/2000, Boodlal Sooklal v. Trinidad and Tobago

            (Views adopted on 25 October 2001, seventy-third session) ............................     264

                GG. Communication No. 932/2000, Gillot v. France

            (Views adopted on 15 July 2002, seventy-fifth session) ....................................     270

                HH. Communication No. 946/2000, Patera v. The Czech Republic

            (Views adopted on 25 July 2002, seventy-fifth session) ....................................     294

                        Appendix

                II.    Communication No. 965/2000, Karakurt v. Austria

            (Views adopted on 4 April 2002, seventy-fourth session) .................................     304

                        Appendix

     X.       DECISIONS OF THE HUMAN RIGHTS COMMITTEE DECLARING

                COMMUNICATIONS INADMISSIBLE UNDER THE OPTIONAL

                PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL

    AND POLITICAL RIGHTS ...................................................................................     312

   

            (Decision adopted on 21 March 2002, seventy-fourth session) .........................     312

       

        Appendix

        Communication No. 826/1999, Godwin v. Zambia

        Communication No. 827/1999, de Silva v. Zambia

        Communication No. 828/1999, Perera v. Zambia

            (Decision adopted on 25 July 2002, seventy-fifth session) .................................     319

CONTENTS (continued)

                                                                                                                                                Page

Annexes

    X.  (cont'd)

            (Decision adopted on 1 April 2002, seventy-fourth session) ..............................     324

        Appendix

            (Decision adopted on 22 October 2001, seventy-third session) .........................     333

        Appendix

            (Decision adopted on 9 July 2002, seventy-fifth session) ...................................     348

            (Decision adopted on 21 March 2002, seventy-fourth session) .........................     353

            (Decision adopted on 21 March 2002, seventy-fourth session) .........................     356

            (Decision adopted on 8 July 2002, seventy-fifth session) ...................................     359

            (Decision adopted on 1 April 2002, seventy-fourth session) ..............................     361

            (Decision adopted on 15 July 2002, seventy-fifth session) .................................     364

Annex IX

VIEWS OF THE HUMAN RIGHTS COMMITTEE UNDER ARTICLE 5,

               PARAGRAPH 4, OF THE OPTIONAL PROTOCOL TO THE

               INTERNATIONAL COVENANT ON CIVIL ANd POLITICAL RIGHTS

A.  Communication No. 580/1994, Ashby v. Trinidad and Tobago

                             (Views adopted on 21 March 2002, seventy-fourth session)*

Submitted by:                                       Interights (represented by Ms. Emma Playfair, Executive Director, and Ms. Natalia Schiffrin, Legal Officer, on behalf of and representing the author, acting as counsel)

           

Alleged victim:                          Mr. Glenn Ashby

           

State party:                                           Trinidad and Tobago

           

Date of communication:             6 July 1994 (initial submission)

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

            Meeting on 21 March 2002,

            Having concluded its consideration of Communication No. 580/1994, submitted to the Human Rights Committee by Interights, 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 communication was submitted on 6 July 1994 by Interights on behalf of Glenn Ashby, a Trinidadian citizen, at the time of submission awaiting execution at the State prison at Port-of-Spain, Trinidad and Tobago.  On 14 July 1994, after the complaint had been transmitted to the authorities of Trinidad and Tobago, Mr. Ashby was executed in the State prison.  Counsel claims that Mr. Ashby was the victim of violations of articles 6, 7, 10, paragraph 1, and 14, paragraphs 1, 3 (b), (c), (d) and (g) and 5 of the International Covenant on Civil and Political Rights.

The facts as submitted by counsel

2.1       Mr. Ashby was arrested on 17 June 1988.  He was convicted of murder and sentenced to death in the Port-of-Spain Assizes Court on 20 July 1989.  The Court of Appeal of Trinidad and Tobago dismissed his appeal on 20 January 1994.  On 6 July 1994, the Judicial Committee of the Privy Council dismissed Mr. Ashby's subsequent application for special leave to appeal.  With this, it was argued, all available domestic remedies within the meaning of the Optional Protocol had been exhausted.  While Mr. Ashby might have retained the right to file a constitutional motion in the Supreme (Constitutional) Court of Trinidad and Tobago, it is submitted that the State party's inability or unwillingness to provide legal aid for constitutional motions would have rendered this remedy illusory.

2.2       The prosecution's case rested mainly on the testimony of one S. Williams, who had driven Mr. Ashby and one R. Blackman to the house where the crime was committed.  This witness testified that before entering the victim's house with Blackman, Mr. Ashby had held a penknife in his hand.  Furthermore, he testified that Mr. Ashby, after having left the house with Blackman and having entered the car, had said he had "cut the man with the knife".  This testimony was corroborated by evidence of the pathologist, who concluded that the cause of death had been a stab wound to the neck.  In addition to that, Mr. Ashby himself allegedly made oral as well as written statements admitting that he had killed the victim.

2.3       The defence challenged the credibility of the testimony of S. Williams and maintained that Mr. Ashby was innocent.  It submitted that there was clear evidence that Mr. Williams was himself an accomplice to the crime; that Mr. Ashby had not carried a penknife; that it was Blackman who had sought to involve Mr. Ashby in the crime and that he had been beaten by a police officer after his arrest and had made a subsequent statement only after being promised that he could return home if he gave the statement.

The chronology of events surrounding Mr. Ashby's execution

3.1       Mr. Ashby's communication under the Optional Protocol was received by the secretariat of the Human Rights Committee on 7 July 1994.  On 13 July 1994, counsel submitted additional clarifications.  On the same day, the Committee's Special Rapporteur on New Communications issued a decision under rules 86 and 91 of the Committee's rules of procedure to the Trinidad and Tobago authorities, requesting a stay of execution, pending the determination of the case by the Committee, and seeking information and observations on the question of the admissibility of the complaint.

3.2       The combined rule 86/rule 91 request was handed to the Permanent Mission of Trinidad and Tobago at Geneva at 4.05 p.m. Geneva time (10.05 a.m. Trinidad and Tobago time) on 13 July 1994.  According to the Permanent Mission of Trinidad and Tobago, this request was transmitted by facsimile to the authorities in Port-of-Spain between 4.30 and 4.45 p.m. on the same day (10.30-10.45 a.m. Trinidad and Tobago time).

3.3       Efforts continued throughout the night of 13 to 14 July 1994 to obtain a stay of execution for Mr. Ashby, both before the Court of Appeal of Trinidad and Tobago and before the Judicial Committee of the Privy Council in London.  When the Judicial Committee issued a stay order shortly after 11.30 a.m.  London time (6.30 a.m. Trinidad and Tobago time) on 14 July, it transpired that Mr. Ashby had already been executed.  At the time of his execution, the Court of Appeal of Trinidad and Tobago was also in session, deliberating on the issue of a stay order.

3.4       On 26 July 1994, the Committee adopted a public decision expressing its indignation over the State party's failure to comply with the Committee's request under rule 86; it decided to continue consideration of Mr. Ashby's case under the Optional Protocol and strongly urged the State party to ensure, by all means at its disposal, that situations similar to that surrounding the execution of Mr. Ashby do not recur.  The Committee's public decision was transmitted to the State party on 27 July 1994.

The complaint

4.1       Counsel claims a violation of articles 7, 10 and 14, paragraph 3 (g), alleging that Mr. Ashby was beaten and ill-treated at the police station after his arrest and that he signed the confession statement under duress, after having been told that he would be released if he signed the statement.

4.2       It is submitted that the State party violated article 14, paragraph 3 (d), since Mr. Ashby received inadequate legal representation prior to and during his trial.  Counsel points out that Mr. Ashby's legal aid attorney spent hardly any time with his client to prepare the defence.  The same lawyer reportedly argued the appeal without conviction.

4.3       Counsel submits that the failure of the Court of Appeal to correct the trial judge's omission to direct the jury on the danger of acting on uncorroborated evidence given by an accomplice, as well as the Privy Council's failure to correct the misdirection and material irregularities of the trial, amounted to a denial of Mr. Ashby's right to a fair trial.

4.4       In her initial submission, counsel submitted that Mr. Ashby was the victim of a violation of article 7 and 10, paragraph 1, on the grounds of his prolonged detention on death row, namely, for a period of 4 years, 11 months and 16 days.  According to counsel, the length of the detention, during which Mr. Ashby lived in cramped conditions with no or very poor sanitary and recreational facilities, amounted to cruel, inhuman and degrading treatment within the meaning of article 7.  As support for her argument, counsel adduces recent judgements of the Judicial Committee of the Privy Council and the Supreme Court of Zimbabwe.

4.5       It is submitted that Mr. Ashby's execution violated his rights under the Covenant, because he was executed (1) after an assurance had been given to the Privy Council that he would not be executed before all his avenues of relief had been exhausted; (2) while his application for a stay of execution was still under consideration by the Court of Appeal in Trinidad and Tobago; and (3) just moments after the Privy Council heard and granted a stay.  Moreover, Mr. Ashby was executed in violation of the Committee's rule 86 request.

4.6       Counsel further submits that Mr. Ashby's execution deprived him of his rights under:

            (a)        Article 14, paragraph 1, because he was denied a fair hearing in that he was executed before his pending litigation was completed; and

            (b)        Article 14, paragraph 5, because he was executed before the Court of Appeal in Trinidad and Tobago, the Privy Council and the Human Rights Committee reviewed his conviction and the lawfulness of his sentence.  In this latter context, counsel recalls the Committee's jurisprudence that article 14, paragraph 5, applies to whatever levels of appeal are provided by law.

4.7       Counsel concedes that there may be an issue of whether Mr. Ashby had a right, under article 14, paragraph 5, to have his case reviewed by a higher tribunal, where that constitutional review was available to him, and where he was already in the process of pursuing it and relying upon it.  She submits that where an individual has been permitted to initiate a constitutional challenge, and where that individual is actually in court in the midst of seeking "review", that individual has a right under article 14, paragraph 5, to effective access to that review.  Moreover, it is submitted that this interference with the appellate process was so grave that it not only violated the right to an appeal under article 14, paragraph 5, but also the right to a fair trial and equality before the courts under article 14, paragraph 1.  It is clear that the constitutional process is governed by the guarantees of article 14, paragraph 1.  Counsel relies on the Committee's Views in case No. 377/1989 (Currie v. Jamaica) in this respect.

4.8       It is submitted that article 6 has been violated both because it is a violation of article 6, paragraph 1, to execute the penalty of death in a case where the Covenant's other guarantees have not been adhered to, and because the specific guarantees of article 6, paragraphs 2 and 4, have not been adhered to.  Finally, counsel argues that a "final judgement" within the meaning of article 6, paragraph 2, must be understood in this case to include the decision on the constitutional motion, because a final judgement on the constitutional motion, challenging the constitutionality of Mr. Ashby's execution, would in reality represent the "final" judgement of this case.  Furthermore, article 6, paragraph 4, was violated because Mr. Ashby was in the process of pursuing his right to seek commutation when he was executed.

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

5.1       In a submission dated 18 January 1995, the State party submits that its authorities "were not aware of the Special Rapporteur's request under rule 86 at the time of Mr. Ashby's execution.  The representation of Trinidad and Tobago at Geneva transmitted a covering memorandum by fax at 16.34 (Geneva time) (10.34 Trinidad time) on 13 July 1994.  This

memorandum made reference to a note from the Centre for Human Rights.  However, the note referred to was not attached to the memorandum.  The entire application filed on behalf of Mr. Ashby, together with the Special Rapporteur's request under rule 86, was received by the Ministry of Foreign Affairs on 18 July 1994, that is, four days after Mr. Ashby's execution."

5.2       The State party notes that "unless the urgency of the request and Mr. Ashby's imminent execution were drawn by the Committee to the attention of the Permanent Representative, he would not in any way have been aware of the extreme urgency with which the request was to be transmitted to the relevant authorities in Trinidad and Tobago.  It is not known whether the Committee in fact drew the urgency of the request to the attention of the Permanent Representative."  Mr. Ashby was executed at 6.40 (Trinidad and Tobago time) on 14 July 1994.

5.3       The State party gives the following chronology of the events preceding Mr. Ashby's execution:  "On 13 July 1994, a constitutional motion was filed on behalf of Mr. Ashby, challenging the constitutionality of the execution of the sentence of death upon him.  Mr. Ashby's attorneys sought an order staying the execution until the determination of the motion.  The High Court refused a stay of execution and held that Mr. Ashby had shown no arguable case to warrant the grant of a conservatory order.  An appeal was filed on behalf of Mr. Ashby and another application was made to stay the execution pending the determination of the appeal.  Attorneys for Mr. Ashby also sought to render ineffective the established procedure of the courts in Trinidad and Tobago by bypassing both the High Court and the Court of Appeal and approaching the Privy Council directly for a stay of execution, prior to the decisions of the local courts.  There was confusion as to whether the State party's lawyer had given an undertaking to the Privy Council and as to whether the Privy Council had jurisdiction to grant a stay or a conservatory order prior to the decision of the local Court of Appeal."

5.4       The State party goes on to note that, so as "to preserve the status quo, the Privy Council granted a conservatory order in the event that the Court of Appeal refused a stay at 11.45 a.m. (United Kingdom time) (6.45 a.m. Trinidad and Tobago time) on 14 July 1994, that is five minutes after Mr. Ashby's execution.  The trial attorney for Mr. Ashby indicated to the Court of Appeal at 6.52 (Trinidad and Tobago time) that he had received a document by fax from the Registrar of the Privy Council indicating that a conservatory order was granted in the event that the Court of Appeal refused a stay of execution.  This order appeared to be conditional upon the Court of Appeal refusing to grant the stay of execution."

5.5       According to the State party, "Mr. Ashby was executed pursuant to a warrant of execution signed by the President, at a time when there was no judicial or presidential order staying the execution.  The Advisory Committee on the Power of Pardon considered Mr. Ashby's case and did not recommend that he be pardoned."

5.6       The State party "questions the competence of the Committee to examine the communication, since the communication was submitted at a time when Mr. Ashby had not exhausted his domestic remedies, and the communication would therefore have been inadmissible under rule 90".  It further disputes the Committee's finding, in its public decision of 26 July 1994, that it had failed to comply with its obligations both under the Optional Protocol and under the Covenant:  "Apart from the fact that the relevant authorities were unaware of the

request, the State party is of the view that rule 86 does not permit the Committee to make the request which was made nor does it impose an obligation on the State party to comply with the request."

6.1       In a submission dated 13 January 1995, counsel elaborates on the circumstances of the death of her client and submits new allegations relating to article 6 of the Covenant, as well as supplementary information on the claims initially filed under articles 7 and 14.  She submits these observations at the express request of Desmond Ashby, the father of Glen Ashby, who has requested that the case of his son be further examined by the Committee.

6.2       Counsel provides the following chronology of events:  "On 7 July 1994, through his attorneys in Trinidad and Tobago, Glen Ashby wrote to the Mercy Committee.  Mr. Ashby requested the right to be heard before that body, stating that the Human Rights Committee was considering his communication and asking that the Mercy Committee await the outcome of the Human Rights Committee's recommendations.  On 12 July 1994, the Mercy Committee rejected Glen Ashby's petition for mercy."  On the same day, a warrant for execution at 6 a.m. on 14 July 1994 was read to Mr. Ashby.

6.3       On 13 July 1994, Mr. Ashby's lawyers in Trinidad filed a constitutional motion in the Trinidad and Tobago High Court, seeking a conservatory order staying the execution because of (1) delay in carrying out execution (pursuant to the Privy Council's judgement in Pratt and Morgan); (2) refusal of the Mercy Committee to consider the recommendations of the Human Rights Committee; (3) the unprecedented short interval between the reading of the warrant and the date of Mr. Ashby's execution.  The respondents to the motion were the Attorney-General, the Commissioner of Prisons and the Prison Marshal.  On 13 July, at approximately 3.30 p.m. London time, at a special sitting of the Privy Council, London counsel for Mr. Ashby sought a stay of execution on his behalf.  The representative of the Attorney-General of Trinidad and Tobago then informed the Privy Council that Mr. Ashby would not be executed until all possibilities of obtaining a stay of execution, including applications to the Court of Appeal in Trinidad and Tobago and the Privy Council, had been exhausted.  This was recorded in writing and signed by counsel for Mr. Ashby and counsel for the Attorney-General. 

6.4       Also on 13 July, following a hearing in the High Court of Justice, Trinidad and Tobago, a stay of execution was refused.  An appeal against the refusal was lodged immediately and its hearing started before the Court of Appeal in Trinidad and Tobago at 12.30 a.m. Trinidad and Tobago time, on the morning of 14 July.  In the Court of Appeal, counsel for the respondents said that, notwithstanding any assurances given in the Privy Council, Glen Ashby would be hanged at 7 a.m. Trinidad and Tobago time (noon London time) unless the Court of Appeal granted a conservatory order.  The Court of Appeal then proposed to adjourn until 11 a.m. Trinidad and Tobago time in order to seek clarification of what had taken place before the Privy Council.  Lawyers for Mr. Ashby asked for a conservatory order until 11 a.m., noting that the execution had been scheduled for 7 a.m. and that counsel for the respondents had made it clear that Mr. Ashby could not rely on the assurance given to the Privy Council.  The Court expressed the view that, in the interim, Mr. Ashby could rely on the assurance given to the Privy Council, and declined to make a conservatory order.  The Court instead decided to adjourn

until 6 a.m.  Lawyers for Mr. Ashby applied for an interim conservatory order until 6 a.m. but the Court denied this request.  At no time did the lawyers for the State party indicate that the execution was scheduled to take place earlier than 7 a.m.

6.5       On 14 July, at 10.30 a.m. London time, at a special sitting of the Judicial Committee of the Privy Council, a document was signed by counsel for the Attorney-General of Trinidad and Tobago in London and countersigned by counsel for Mr. Ashby, recording what had happened, and what had been said in the Privy Council on 13 July.  That document, consisting of three handwritten pages, was immediately sent by the Registrar of the Privy Council by facsimile to the Court of Appeal and to counsel for both sides in Trinidad and Tobago.  Mr. Ashby's lawyers in Trinidad and Tobago received the document before 6 a.m.  The Privy Council then asked for further clarification of the Attorney-General's position.  As no clarifications were forthcoming, the Privy Council ordered a stay of execution at approximately 11.30 a.m. London time, directing that the sentence of death should not be carried out.  At approximately the same time, 6.20 a.m. in Trinidad and Tobago, the Court of Appeal reconvened.  At this time, lawyers for Mr. Ashby informed the Court that, at that moment, the Privy Council was in session in London.  Counsel for Mr. Ashby also gave the Court the three-page document received by fax.

6.6       At around 6.40 a.m., the lawyers for Mr. Ashby again applied to the Court of Appeal in Trinidad and Tobago for a conservatory order.  The order was denied; the Court again emphasizing that Mr. Ashby could rely on the assurance given to the Privy Council.  At this point, one of Mr. Ashby's lawyers appeared in Court with a handwritten transcript of an order of the Privy Council staying the execution.  The order had been read to him over the telephone, having been granted at approximately 6.30 a.m. Trinidad and Tobago time (11.30 a.m. London time).  Shortly thereafter, it was announced that Mr. Ashby had been hanged at 6.40 a.m.

Decision on admissibility

7.1       At its fifty-fourth session in July 1995, the Committee considered the admissibility of the communication.

7.2       As to the claims under article 14, paragraph 1, relating to the trial judge's alleged failure to direct the jury properly on the danger inherent in relying on the testimony of a potential accomplice to the crime, the Committee recalled that it is primarily for the courts of States parties to the Covenant, and not for the Committee, to review facts and evidence in a particular case.  It is for the appellate courts of States parties to the Covenant to review the conduct of the trial and the judge's instructions to the jury, unless it can be ascertained that the evaluation of evidence was clearly arbitrary or amounted to a denial of justice, or that the judge manifestly violated his obligation of impartiality.  The trial transcript in Mr. Ashby's case did not reveal that his trial before the Assizes Court of Port-of-Spain suffered from such defects.  Accordingly, this part of the communication was inadmissible as incompatible with the provisions of the Covenant, pursuant to article 3 of the Optional Protocol.

7.3       As to the claims related to Mr. Ashby's ill-treatment after his arrest, the inadequate preparation of his defence, the inadequacy of his legal representation, the alleged involuntary nature of his confession, the undue delay in the adjudication of his appeal, and the conditions of

his detention, the Committee considered them to have been sufficiently substantiated, for purposes of admissibility.  These claims, which may raise issues under articles 7, 10, paragraph 1, and 14, paragraphs 3 (b), (c), (d) and (g) and 5, should accordingly be considered on their merits.

7.4       As to the claims under article 6, the Committee has noted the State party's contention that since the communication was submitted at a time when Mr. Ashby had not exhausted available domestic remedies, his complaint should be declared inadmissible under article 5, paragraph 2 (b), of the Optional Protocol.  Counsel has argued that, as Mr. Ashby was executed unlawfully while he was pursuing judicial remedies, the State party is estopped from claiming that further remedies remained to be exhausted.

7.5       The Committee observed that it was to prevent "irreparable harm" to Mr. Ashby that the Committee's Special Rapporteur issued, on 13 July 1994, a request for a stay of execution pursuant to rule 86 of the rules of procedure; this request was intended to allow Mr. Ashby to complete pending judicial remedies and to enable the Committee to determine the question of the admissibility of Mr. Ashby's communication.  In the circumstances of the case, the Committee concluded that it was not precluded, by article 5, paragraph 2 (b) of the Optional Protocol, from considering Mr. Ashby's complaint under article 6, and that it was not necessary for counsel first to exhaust available local remedies in respect of her claim that Mr. Ashby was arbitrarily deprived of his life before she could submit this claim to the Committee.

8.         On 14 July 1995, the Human Rights Committee therefore decided that the communication was admissible inasmuch as it appeared to raise issues under articles 6, 7, 10, paragraph 1, and 14, paragraphs 3 (b), (c), (d) and (g) and 5, of the Covenant.

State party's observations on the merits and counsel's comments thereon

9.1       By submission of 3 June 1996, the State party submits explanations and statements with regard to the merits of the case.

9.2       With regard to the alleged ill-treatment of Mr. Ashby after his arrest, the State party refers to the trial transcript.  The State party submits that these allegations were raised in relation to Mr. Ashby's confession and that Mr. Ashby had the opportunity to give evidence and was cross-examined on this issue.  The court therefore dealt with the complaint impartially and these findings of the court should prevail.

9.3       With regard to the inadequate preparation of Mr. Ashby's defence, the State party submits that the legal aid attorney, who appeared for him, is a well-known and competent counsel, who practises at the Criminal Bar in Trinidad and Tobago.  The State party attaches comments by the former trial attorney refuting Mr. Ashby's allegations to the submission.

9.4       The State party further reiterates that a fair hearing took place with regard to the involuntary confession.  Both the court of appeal and the State Court of Trinidad and Tobago were aware of the complaint in respect to the confession and reviewed the facts and evidence in an impartial manner.

9.5       On the question of undue delay in adjudication of Mr. Ashby's appeal, the State party points to the circumstances prevailing in Trinidad and Tobago at that time.  The State party argues that delays are caused by the practice in all murder trials of handwritten notes of evidence that would then need to be typed and verified by the respective trial judge on top of their busy court schedule.  Furthermore, it has proven difficult to recruit lawyers suitable for filling vacancies in the judiciary, so that even the Constitution had to be changed to allow the appointment of retired judges.  Still, there are not enough judges at the High Court to deal with the increasing number of appeals in criminal cases.  The State party explains that from January 1994 to April 1995, after the decision of the Judicial Committee of the Privy Council in the case of Pratt and Morgan, the High Court almost exclusively heard appeals in murder cases, largely ignoring civil appeals.

9.6       The State party submits that the conditions of Mr. Ashby's detention are similar to those of all prisoners on death row.  The State party points to an affidavit of the Commissioner of Prisons attached to the submission and describing the general conditions of prisoners on death row.  The State party contends that the facts in Pratt and Morgan and the Zimbabwe judgement are so different from the facts in Mr. Ashby's case that statements in these provide little, if any, assistance.

9.7       With regard to the alleged violation of article 6 of the Covenant, the State party submits that the Committee should not proceed with this claim as proceedings were filed at the High Court of Trinidad and Tobago in relation to the execution of Mr. Ashby.  Without prejudice to this submission, the State party argues that Mr. Ashby had no right to be heard by the Mercy Committee pointing to precedence decision of the Judicial Committee of the Privy Council.

9.8       The State party contests details of the facts as provided by counsel.  In particular, the State party states that it was not correct that the Court of Appeals expressed the view that counsel should rely on the assurances given to the Privy Council that Mr. Ashby would not be executed. Instead, the Court expressed that it was not prepared to do anything until the Judicial Committee of the Privy Council resolved the dispute.

9.9       On 26 July 1996, counsel requested the Committee to suspend examination of the merits of the communication, as an effective domestic remedy could be regarded as having become available. Counsel submits that the father of Mr. Ashby brought a constitutional and civil action against the State party in relation to the circumstances of the execution. On 16 July 2001, counsel requested the Committee to resume consideration of the case and submitted that the lawyers in Trinidad and Tobago had been unable to resolve difficulties in meeting certain procedural requirements with regard to the constitutional and civil action.

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

10.2     The Committee notes the State party's statement that Mr. Ashby's lawyers in Trinidad and Tobago were pursuing, on behalf of his estate and his father, certain court actions in relation to the circumstances surrounding Mr. Ashby's execution.  The Committee notes that the civil and constitutional procedures in question are not relevant for the consideration of the claims in the present case.  However, the Committee respected counsel's request to suspend examination of the merits (see paragraph 9.9).

10.3     With regard to the alleged beatings and the circumstances leading to the signing of the confession, the Committee notes that Mr. Ashby did not give precise details of the incidents, identifying those he holds responsible.  However, details of his allegations appear from the trial transcript submitted by the State party.  The Committee observes that the allegations of Mr. Ashby were dealt with by the domestic court and that he had the opportunity to give evidence and was cross-examined.  His allegations were also mentioned in the decision of the Court of Appeals.  The Committee recalls that it is in general for the courts of States parties, and not for the Committee, to evaluate the facts in a particular case.  The information before the Committee and the arguments advanced by the author do not show that the Courts' evaluation of the facts were manifestly arbitrary or amounted to a denial of justice.   The Committee finds that there is not sufficient evidence to sustain a finding that the State party violated its obligations under article 7 of the Covenant. 

10.4     With regard to the claim of inadequacy of legal representation during and in preparation of the trial and the appeals proceedings, the Committee refers to its jurisprudence that a State party cannot be held responsible for the conduct of a defence lawyer, unless it was or should have been manifest to the judge that the lawyer's behaviour was incompatible with the interests of justice.  In the instant case, there is no reason for the Committee to believe that the trial attorney was not using other than his best judgement.  It is apparent from the trial transcript that the lawyer cross‑examined all witnesses.  It is further apparent from the appeals decision that the grounds of appeal submitted by the lawyer were argued and fully taken into account by the High Court in its reasoning.  The material before the Committee does not reveal that either counsel or the author ever complained to the trial judge that the time for preparation of the defence was inadequate.  In the circumstances, the Committee finds that the facts before it do not reveal a violation of the Covenant in this respect.

10.5     Counsel also claims undue delay in the adjudication of Mr. Ashby's appeal.  The Committee notes that the Port-of-Spain Assize Court found Mr. Ashby guilty of murder and sentenced him to death on 20 July 1989 and that the Court of Appeals affirmed the sentence on 20 January 1994.  Mr. Ashby remained in detention during this time.  The Committee notes the State party's explanation concerning the delay in the appeals proceedings against Mr. Ashby.  The Committee finds that the State party did not submit that the delay in proceedings was dependent on any action by the accused nor was the non-fulfilment of this responsibility excused by the complexity of the case.   Inadequate staffing or general administrative backlog is not sufficient justification in this regard.  In the absence of any satisfactory explanation from the State party, the Committee considers that the delay of some four and a half years was not compatible with the requirements of article 14, paragraphs 3 (c) and 5, of the Covenant.

10.6     As to the conditions of Mr. Ashby's detention (see paragraph 4.4), the Committee reaffirms its constant jurisprudence that detention on death row for a specific period does not violate, as such, article 7 of the Covenant in the absence of further compelling circumstances.  The Committee concludes that article 7 has not been violated in the instant case.

10.7     As to the claim regarding Mr. Ashby's conditions of detention being in violation of article 10 of the Covenant, the Committee notes the absence of any further submission after the Committee's admissibility decision in substantiation of Mr. Ashby's claim.  Therefore, the Committee is unable to find a violation of article 10 of the Covenant. 

10.8     Counsel finally submits that Mr. Ashby was arbitrarily deprived of his life when the State party executed him in full knowledge of the fact that Mr. Ashby was still seeking remedies before the Courts of Appeal of the State party, the Judicial Committee of the Privy Council and the Human Rights Committee.  The Committee finds that, in these circumstances (detailed above at 6.3 to 6.6), the State party committed a breach of its obligations under the Covenant.  Moreover, having regard to the fact that the representative of the Attorney-General informed the Privy Council that Mr. Ashby would not be executed until all possibilities of obtaining a stay of execution had been exhausted, the carrying out of Mr. Ashby's sentence notwithstanding that assurance constituted a breach of the principle of good faith which governs all States in their discharge of obligations under international treaties, including the Covenant.  The carrying out of the execution of Mr. Ashby when the execution of the sentence was still under challenge constituted a violation of article 6, paragraphs 1 and 2, of the Covenant.

10.9     With regard to Mr. Ashby's execution, the Committee recalls its jurisprudence that apart from any violation of the rights under the Covenant, the State party commits a serious breach of its obligations under the Optional Protocol if it engages in any acts which have the effect of preventing or frustrating consideration by the Committee of a communication alleging any violation of the Covenant, or to render examination by the Committee moot and the expression of its Views nugatory and futile.  The behaviour of the State party represents a shocking failure to demonstrate even the most elementary good faith required of a State party to the Covenant and of the Optional Protocol.

10.10   The Committee finds that the State party breached its obligations under the Protocol, by proceeding to execute Mr. Ashby before the Committee could conclude its examination of the communication, and the formulation of its Views.  It was particularly inexcusable for the State to do so after the Committee had acted under its rule 86 requesting the State party to refrain from doing so.  Flouting of the Rule, especially by irreversible measures such as the execution of the alleged victim, undermines the protection of Covenant rights through the Optional Protocol. 

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 violations of articles 6, paragraphs 1 and 2 and 14, paragraphs 3 (c) and 5, of the Covenant.

12.       Under article 2, paragraph 3, of the Covenant, Mr. Ashby would have been entitled to an effective remedy including, first and foremost, the preservation of his life.  Adequate compensation must be granted to his surviving family.

13.       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.  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 to be issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

B.  Communication No. 641/1995, Gedumbe v. Democratic Republic of the Congo

              (Views adopted on 9 July 2002, seventy-fifth session)*

Submitted by:                                       Nyekuma Kopita Toro Gedumbe

           

Alleged victim:                          The author

           

State party:                                           Democratic Republic of the Congo

           

Date of decision on admissibility:           1 August 1997

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

            Meeting on 9 July 2002,

            Having concluded its consideration of Communication No. 641/1995 submitted by Mr. Nyekuma Kopita Toro Gedumbe under the Optional Protocol to the International Covenant on Civil and Political Rights,

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

            Adopts the following:

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

1.         The author of the communication is Mr. Nyekuma Kopita Toro Gedumbe, a citizen of the Democratic Republic of the Congo (ex-Zaire) residing in Bujumbura, Burundi.  He claims to be a victim of a violation by the Democratic Republic of the Congo (ex-Zaire) of articles 2, paragraphs 1 and 3; 7; 14; 17; 23, paragraph 1; 25 (a) and (c); and 26 of the International Covenant on Civil and Political Rights.  He is not represented by counsel.

The facts as presented by the author

2.1       In 1985 the author was appointed director of a Zairian consular school in Bujumbura, Burundi.  In 1988 he was suspended from his duties by Mboloko Ikolo, the then Zairian ambassador to Burundi.  This suspension allegedly was attributable to a complaint addressed by

the author and by other staff members of the school1 to several administrative authorities of Zaire, including the President and the Minister of Foreign Affairs, concerning the embezzlement by Mr. Ikolo of the salaries for the personnel of the consular school.  More particularly, the ambassador allegedly embezzled the author's salary in order to force him to yield his wife.

2.2       In March 1988 a fact-finding commission was sent from Zaire to Bujumbura, which, purportedly, made an overwhelming report against the ambassador and confirmed all the allegations made against him.  In August 1988 the Minister of Foreign Affairs of Zaire enjoined Mr. Ikolo to pay all the salary arrears to the author, who, in the meantime, had been transferred as director of the Zairian consular school to Kigali, Rwanda.  The ambassador, who allegedly refused to obey this order, was suspended from his duties and recalled to Zaire on 20 June 1989.

2.3       In September 1989 the Ministry of Primary and Secondary Education issued an order to reinstate the author in his post in Bujumbura.  Accordingly, the author moved back to Burundi in order to fill his post.  Subsequently, Mr. Ikolo, who despite his suspension remained in Bujumbura until 20 December 1989, informed the authorities in Zaire that the author was a member of a network of political opponents of the Zairian Government, and that he therefore had requested the authorities of Burundi to expel him.  For this reason, the author maintains, Mr. Ikolo and his successor at the embassy, Vizi Topi, refused to reinstate him in his post, even after confirmation by the Minister of Primary and Secondary Education, or to pay his salary arrears.

2.4       The author appealed to the Public Prosecutor of the County Court (Tribunal de Grande Instance) of Uvira, who passed on the file to the Public Prosecutor of the Court of Appeal (Cour d'Appel) of Bukavu on 25 July 1990.  Both offices described the facts as being an abuse of rights and called into question the former ambassador's conduct.  On 14 September 1990 the case was further transmitted for advice to the Office of the Public Prosecutor in Kinshasa, where the case was registered in February 1991.  Since then, despite numerous reminders sent by the author, no further action has been taken.  Consequently, the author appealed to the Minister of Justice and to the Chairman of the National Assembly.  The latter interceded with the Minister of Foreign Affairs and the Minister of Education, who, allegedly, intervened on the author's behalf with Mr. Vizi Topi, all to no avail.

2.5       On 7 October 1990 the author served a summons on Mr. Ikolo for adultery, slanderous denunciation and prejudicial charges, abuse of power and embezzlement of private monies.  By a letter dated 24 October 1990, the President of the Kinshasa Court of Appeal (Cour d'Appel) informed the author that Mr. Ikolo, as an ambassador, benefited from functional immunity and could only be brought to trial upon summons of the Public Prosecutor.  All the author's requests to the latter to start legal proceedings against Mr. Ikolo have to date remained unanswered.  According to the author, this is due to the fact that a special authorization of the President is required to start legal proceedings against members of the security police and that, therefore, the Public Prosecutor could not take the risk of serving a summons on Mr. Ikolo, who is also a senior official in the National Intelligence and Protection Service.  Accordingly, the author's case cannot be the subject of a judicial determination.  Therefore, it is submitted, all available and effective domestic remedies have been exhausted.

The complaint

3.1       The author argues that the arbitrary deprivation of his employment, the embezzlement of his salary and the destabilization of his family amounts to torture and to cruel and inhuman treatment.  The author further contends that the Government, represented by the Public Prosecutor, denies him the right to a fair and public hearing by a competent, independent and impartial tribunal established by law.

3.2       The author further argues that his family has been destabilized by the immoral behaviour of the ambassador, who allegedly had adulterous relations with the author's wife, in violation of article 17.  It is further alleged that, due to the difficult life the author and his family have led since he was suspended from his duties, the author's family does not enjoy the protection to which it is entitled, in breach of article 23, paragraph 1.

3.3       The author claims that, as a director of a public school being prevented from exercising his duties, his rights under article 25 (a) and (c) have been violated.  The author finally contends that he is the victim of a violation of article 26, since he was suspended from public service without disciplinary sanctions having been imposed on him, and thus in breach of the law.  In this connection, the author claims that the failure of the Government to compel the ambassador to allow him to exercise his duties, even after official reinstatement in his post, constitutes a violation of article 2, paragraphs 2 and 3.

3.4       The author indicates that the matter has not been submitted to any other procedure of international investigation or settlement.

Issues and proceedings before the Committee

4.1       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.

4.2       At its sixtieth session in July-August 1997, the Committee considered the admissibility of the communication.

4.3       The Committee considered that the author's claim that the facts as described by him constituted a violation of articles 7, 17, 23 and 25 (a) has been unsubstantiated for purposes of admissibility.  This part of the communication is therefore inadmissible under article 2 of the Optional Protocol.

4.4       The Committee also considered that, in the absence of any information provided by the State party, the author's claims that he has been denied access to public service, as well as equality before the law and the courts because the State party failed to enforce its decisions to pay back the author's salary and to reinstate him and because he is being prevented from bringing his complaint before the courts may raise issues under articles 14, paragraph 1, 25 (c) and 26 of the Covenant, which need to be examined on the merits.  On 1 August 1997 the Committee declared this part of the communication admissible.

On the merits

5.1       The Committee has examined the communication 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.  The Committee notes that, while it has received sufficient information from the author, the State party, despite reminders addressed to it, has not responded in respect of admissibility or the merits of the communication.  The Committee recalls that under article 4, paragraph 2, of the Optional Protocol, a State party is bound to cooperate by submitting to it written explanations in clarification and by indicating, where appropriate, the measures taken to remedy the situation.  In the light of the failure of the State party to cooperate with the Committee on the matter before it, due weight must be given to the author's allegations, to the extent that they have been substantiated.

5.2       With regard to the alleged violation of article 25 (c) of the Covenant, the Committee notes that the author has made specific allegations relating, on the one hand, to his suspension in complete disregard of legal procedure and, in particular, in violation of the Zairian regulations governing State employees, and, on the other hand, to the failure to reinstate him in his post, in contravention of decisions by the Ministry of Primary and Secondary Education.  In this connection the Committee notes also that the non-payment of the author's salary arrears, notwithstanding the instructions by the Minister for Foreign Affairs, is the direct consequence of the failure to implement the above-mentioned decisions by the authorities.  In the absence of a response by the State party, the Committee finds that the facts in the case show that the decisions by the authorities in the author's favour have not been acted upon and cannot be regarded as an effective remedy for violation of article 25 (c) read in conjunction with article 2 of the Covenant. 

5.3       To the extent that the Committee has found that there was no effective legal procedure allowing the author to invoke his rights before a tribunal (article 25 (c) in conjunction with article 2), no separate issue arises concerning the conformity of proceedings before such a tribunal with article 14 of the Covenant.  With regard to article 26, the Committee sustains the author's reasoning by finding a violation of article 25 (c).

6.1       The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose violations by the Democratic Republic of the Congo of articles 25 (c) in conjunction with article 2 of the Covenant.

6.2       Pursuant to article 2, paragraph 3 (a), of the Covenant, the Committee is of the view that the author is entitled to an appropriate remedy, namely:  (a) effective reinstatement to public service and to his post, with all the consequences that that implies, or, if necessary, to a similar post;2 (b) compensation comprising a sum equivalent to the payment of the arrears of salary and remuneration that he would have received from the time at which he was not reinstated to his post, beginning in September 1989.3 

6.3       The Committee recalls that, by becoming a party to the Optional Protocol, the Democratic Republic of the Congo 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 and enforceable remedy in case a violation has been established.  Thus, the Committee wishes to receive from the State party, within 90 days of the transmission of these Views, information about the measures taken to give effect hereto.  The State party is also requested to give publicity to the Committee's Views.

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

Notes

                                 C.    Communication No. 667/1995, Ricketts v. Jamaica

                                        (Views adopted on 4 April 2002, seventy-fourth session)*

Submitted by:                                       Mr. Hensley Ricketts (represented by

                                                            Simons Muirhead and Burton, a London law firm

Alleged victim:                          The author

State party:                                           Jamaica

Date of communication:             4 April 1995 (initial submission)

Decision on admissibility:                       30 April 1999

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

            Meeting on 4 April 2002,

            Having concluded its consideration of Communication No. 667/1995, submitted to the Human Rights Committee by Mr. Hensley Ricketts 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 Hensley Ricketts, a Jamaican citizen, at the time of submission detained at South Camp Rehabilitation Centre, in Kingston, Jamaica.  He claims to be a victim of violations by Jamaica of articles 6 (1) and (2) and 14 (1), (2) and (3) (b) and (d) of the International Covenant on Civil and Political Rights.  He is represented by counsel.

Facts as submitted by the author

2.1       The author was convicted for the murder, on 9 March 1983, of one Clinton Campbell and sentenced to death on 31 October 1983 by the Lucea Circuit Court, Hanover.  He applied for leave to appeal against conviction and sentence.  The Court of Appeal of Jamaica dismissed his application on 20 December 1984.  In spite of the preparation of a draft constitutional motion in June 1986, and several requests from London counsel to the Jamaican lawyer Mr. Daly until March 1994, the constitutional motion was never filed.  However, in 1994, the author filed a petition for special leave to appeal to the Judicial Committee of the Privy Council; his petition was dismissed on 15 January 1995.  With this, it is submitted, all domestic remedies have been exhausted.  In January 1993, the offence for which the author was convicted was classified as a non-capital offence under the Offences against the Person (Amendment) Act 1992, and his sentence was converted to life imprisonment.

2.2       At the trial, a Mr. McKenzie gave evidence to the effect that he saw the author, whom he knew, join a group of three people, Mr. Campbell and two other men, in the night of 9 March 1983.  A fight broke out between the author and Mr. Campbell, then Mr. Campbell ran to his house, followed by the other three men.  Mr. McKenzie then heard "bawling" and he went to Mr. Campbell's house and saw Mr. Campbell's mother call a car to take Mr. Campbell to the hospital.  Mr. McKenzie made a statement to DC Blake, a station officer, about what he had seen.  Mrs. Campbell gave evidence that her son came into the house wounded and collapsed onto the floor, and that she called a car.  Dr. Carlton Jones, who performed the post‑mortem examination on the body of Mr. Campbell, testified that the victim must have died within half an hour after he had been wounded by a sharp instrument.  The arresting officer, DC Blake, gave evidence to the effect that upon his arrest the author admitted to having assaulted Mr. Campbell.  The author made an unsworn statement, saying he and the deceased had an argument about drugs and that Mr. Campbell started beating him with a machete.  The author fled to the police station, where he was told to come back next day.  When he returned to the police station, he was charged with murder by DC Blake.  He denied having killed Mr. Campbell.

2.3       On 31 October 1983 the author was convicted of murder and sentenced to death by the Lucea Circuit Court.  Although the verdict of the jury had to be unanimous, the author claims that 4 of the 12 jurors disagreed with the foreman and that the foreman falsely told the Court that the jury was unanimous.  On 1 November 1983 four affidavits were presented, which state that they disagreed with the verdict.

The complaint

3.1       The author claims to be a victim of a violation of articles 14 (1) and (2) of the Covenant.  Pursuant to section 44 (1) of the Jamaican Jury Law "unanimous verdict of the jury shall be necessary for the conviction or acquittal of any person for murder".  The author maintains that contrary to this rule, the jury at the Lucea Circuit Court was not unanimous.  However, the foreman of the jury said that they had arrived at a unanimous verdict, and that the jury had found the author guilty.  The Jamaican trial lawyer, Mr. Eric Frater received on the day following conviction, 1 November 1983, affidavits, from four of the jurors stating that they had not found the author guilty, and that two of them had protested in Court against the foreman's declaration

by shaking their heads, and one by crying, while the foreman read out the verdict.  The author was therefore found guilty upon a verdict agreed by only 8 out of 12 jurors.  Counsel argues that the Court failed to direct the jury that their verdict had to be unanimous, and that its failure to acknowledge the visible dissent of the jury denied the author's right to be presumed innocent until proved guilty.  In the Court of Appeal, the author was represented by a new counsel, Ms. J. Nosworthy, appointed by Court, whereas before he had been represented by a privately retained lawyer.  The unanimity of the jury was not raised because Ms. J. Nosworthy was not aware of this issue.

3.2       Furthermore, the author claims to be a victim of a violation of articles 14 (3) (b) and (d) of the Covenant.  The author's right to a defence was not respected, in that the legal aid lawyer, who represented him before the Jamaican Court of Appeal never met him before the hearing, never contacted the former lawyer and therefore, did not provide the author with effective and adequate representation. 

3.3       The author also claims to be a victim of a violation of article 6 (1) and (2) of the Covenant.  In this context, he notes that the author spent more than nine years on death row, before his sentence was re-classified.  It is submitted that had the sentence been carried out, this would have led to arbitrary deprivation of life as a result of the circumstances surrounding the return of the jury's verdict at his trial for murder.  Moreover, the author's right to life was not protected by the law throughout this entire period.

3.4       London Counsel explains that, when he was seized of the author's case in January 1986, he tried to have a constitutional motion filed on the author's behalf through Jamaican counsel Mr. Daly.  However, despite repeated requests from counsel until March 1994, the constitutional motion was never filed.  It is therefore argued that the constitutional remedy, which exists in theory, is not available to the author in practice, because of his lack of funds and the unavailability of legal aid.  Reference is made to the Committee's jurisprudence in this matter.

3.5       It is stated that the same matter has not been submitted to another procedure of international investigation or settlement.

The State party's submission

4.1       By submission of 11 January 1996, the State party rejects the allegation that article 6 (1) and (2) was breached in the author's case because of the 9 years he spent on death row before the commutation of his sentence to life imprisonment with the recommendation that he serve 15 years before being eligible for parole. 

4.2       With regard to the alleged breach of article 14 (1) and (2) of the Covenant, because four jury members disagreed with the verdict, the State party noted that "the four jurors in question gave sworn affidavits stating that they objected to the decision to the author's defence counsel on the day the trial ended, 30 November 1983.  The Ministry considers these allegations to be of an extremely serious nature, warranting thorough investigation.  The matter will be investigated and the Committee informed on the result".

4.3       With regard to the alleged violation of article 14 (3) (b) and (d), because the author's legal counsel on appeal did not argue the lack of unanimity of the jury as a ground of appeal, the State party rejects responsibility.  It states that its duty is to provide competent counsel but that it is not responsible for the handling of the case by counsel.

The author's comments

5.1       In his comments dated 13 February 1996, the petitioner argues that the execution of the death sentence against the author would have constituted an arbitrary deprivation of life as a result of the circumstances surrounding the jury's verdict.  The author agrees with the State party that the lack of unanimity of the jury is a serious matter warranting thorough investigation.

5.2       With regard to the author's representation on appeal, counsel argues that effective representation should be provided in all capital cases.  Since the State party has a duty to provide competent counsel it must mean that the State party is responsible for the manner in which counsel conducts the case to ensure that it constitutes effective representation.

Decision on admissibility

6.         At its sixty‑fifth session in March 1999, the Committee declared the communication admissible insofar as it may raise issues under articles 6 and 14 of the Covenant.  The Committee also decided that the State party should be requested, under article 4 (2) of the Optional Protocol, to submit to the Committee, within six months of the date of transmittal to it of the decision, written explanations or statements clarifying the matter and the measures, if any, that it may have taken.  In particular, the State party was requested to provide the Committee with the outcome of its investigations and to furnish a copy of the original grounds of appeal filed on behalf of the author.

Issues and proceedings before the Committee

7.1       The Human Rights Committee has considered this communication in the light of all the written information submitted to it by the parties, in accordance with the provisions of article 5 (1) of the Optional Protocol.  The Committee regrets the absence of cooperation of the State party in failing to provide the results of the investigations referred to in its submission of January 1996 (para. 4.2).  In spite of two reminders sent to the State party, no further information has been received by the Committee. 

7.2       With regard to the author's claim that he is a victim of a violation of articles 14 (1) and (2) of the Covenant, because he was convicted and sentenced by a non-unanimous jury, the Committee notes that after the trial four members of the Lucea Circuit Court jury submitted affidavits stating that they had not agreed to the verdict, though they conceded that they had not given oral expression to their differing view when the jury foreman announced that the verdict was accepted by all jurors.  The Committee observes that the question presented by the jurors' affidavits was raised on appeal before the Judicial Committee of the Privy Council, which

dismissed the petition.  The Committee further notes that the alleged lack of unanimity was not raised before the trial judge nor before the Court of Appeal.  In these circumstances, the Committee cannot conclude that article 14, paragraphs 1 and 2 of the Covenant has been violated.

7.3       In respect of the author's claim that he was not adequately represented during the hearing of his appeal, the Committee notes that the legal aid lawyer who represented the author for his appeal, did not contact the author or the privately retained lawyer who represented him at the first instance court, before the hearing of the appeal.  Nevertheless, although it is incumbent on the State party to provide effective legal aid representation, it is not for the Committee to determine how this should have been ensured, unless it is apparent that there has been a miscarriage of justice.  In the circumstances, the Committee is not able to find a violation of article 14 (3) (b) and (d).

7.4       The Committee therefore considers that there is also no violation of article 6 of the Covenant.

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

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

Note

APPENDIX

Individual opinion of Committee members Ms. Cecilia Medina Quiroga

and Mr. Martin Scheinin  (dissenting)

            In our view the Committee should have found a violation of article 14, paragraph 1, and, consequently, of article 6 in the case.  In its only submission to the Committee the State party has described the author's allegation of the jury having been in fact and visibly divided (see paragraph 3.1) as "extremely serious" and promised a "thorough investigation".  No further information has been received from the State party.

            Due to the circumstances reflected in paragraph 3.2 and the fact that the Judicial Committee of the Privy Council did not give any reasons for its decision to dismiss the author's appeal, there is no material before the Committee that would show that the question whether there was "visible dissent" within the jury was ever addressed by a judicial body, nor any information on whether the problem could have been posed before another body.

            In the absence of any explanations from the State party, particularly after its promise to investigate the matter and inform the Committee, the Committee must give due weight to the allegations of the author.

                                                                        (Signed)  Cecilia Medina Quiroga

                                                                        (Signed)  Martin Scheinin

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

 

Individual opinion of Committee member Mr. Hipólito Solari Yrigoyen

(dissenting)

            I disagree with regard to the present communication on the grounds set forth below.

            With regard to the author's claim that he is a victim of a violation of article 14, paragraphs 1 and 2, of the Covenant, the Committee, given the absence of information from the State party, must give due weight to the author's statements, which are corroborated by other evidence.  The Committee notes with concern that the day after the foreman of the jury presented the verdict as a unanimous verdict, four members of the jury submitted affidavits stating that they had dissented, and two of them gave convincing evidence in public of their dissenting view at the time the verdict was announced.  In addition, the Committee has not received the results of the investigation that the State party indicated that it would conduct in view of the seriousness of the subject matter of the affidavits of the dissenting members, as application of the death penalty requires a unanimous decision.  Accordingly, the Committee finds that article 14, paragraphs 1 and 2, of the Covenant has been violated.

            In respect of the author's claim that he was not adequately represented during the hearing of his appeal, the Committee notes with concern that the legal aid lawyer that represented the author for his appeal did not contact the author; neither did the privately retained lawyer that represented him in the first instance court, before the hearing of the appeal.  This effectively prevented the author from giving his lawyer essential information and instructions for the appeal, in particular concerning the dissent among the jury.  Communication between counsel and defendant is one of the minimum guarantees under article 14, paragraphs 1 and 3, of the Covenant.

                                                                        (Signed)  Hipólito Solari Yrigoyen

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

                     D.   Communication No. 677/1996, Teesdale v. Trinidad and Tobago

                            (Views adopted on 1 April 2002, seventy-fourth session)*

Submitted by:                                       Mr. Kenneth Teesdale (represented by Nabarro Nathanson,

                                                            a law firm in London)

Alleged victim:                          The author

State party:                                           Trinidad and Tobago

Date of communication:             16 March 1995 (initial submission)

Decision on admissibility:                       23 October 1998

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

            Meeting on 1 April 2002,

            Having concluded its consideration of Communication No. 677/1996, submitted to the Human Rights Committee by Mr. Kenneth Teesdale under the Optional Protocol to the International Covenant on Civil and Political Rights,

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

            Adopts the following:

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

1.         The author of the communication is Mr. Kenneth Teesdale, a Trinidadian citizen currently detained at State Prison in Port-of-Spain, Trinidad and Tobago.  He claims to be the victim of violations by Trinidad and Tobago of articles 7, 9, 10 and 14 of the International Covenant on Civil and Political Rights.  He is represented by Nabarro Nathanson, a law firm in London.

Facts as presented by the author

2.1       On 28 May 1988, the author was detained by the police and taken to hospital.  On 31 May 1988 he was discharged from the hospital and on 2 June 1988 he was formally charged with the murder of his cousin "Lucky" Teesdale on 27 May 1988.  After a trial, which started on 6 October 1989, the author was convicted and sentenced to death on 2 November 1989 by the San Fernando Assizes Court.  He applied for leave to appeal against conviction and sentence.  The Court of Appeal of Trinidad and Tobago dismissed the author's appeal on 22 March 1994, with reasons given on 26 October 1994.  On 13 March 1995, the Judicial Committee of the Privy Council dismissed his petition for special leave to appeal.  On 8 March 1996, a warrant for execution on 13 March was read out to the author.  On 11 March, the author filed a constitutional motion to the High Court against the execution; the High Court granted a stay of execution.  The Attorney‑General withdrew the case from the High Court and presented it before the Advisory Committee on the Power of Pardon. 

On 26 June, the author was informed that the President had commuted his death sentence to 75 years' imprisonment with hard labour.  It is submitted that all domestic remedies have been exhausted. 

2.2       The case for the prosecution was that the author, in the presence of one Mr. E. Stewart and S. Floyd, assaulted his cousin, hitting him several times with a cutlass and causing his death by haemorrhage shock.  At the trial, two witnesses, Mr. Stewart and Mr. Floyd gave evidence for the prosecution that, on 27 May 1988, the author approached the deceased who was working at an illegal distillery of "bush rum".  The witnesses were sitting on a log next to the distillery drinking rum.  The author for no apparent reason pulled out a cutlass and proceeded to hack his cousin to death.  Stewart and Floyd both ran from the scene but did not raise alarm nor did either of them report to the police.  The deceased's body was found later the same day some 400 yards away from the distillery.

2.3       An investigating police officer gave evidence at the trial that in the evening of 27 May 1988, after having received a report concerning the incident, he saw the author in the street, who then ran away.  The officer added that he did not observe any wounds on the author at the time.  He said he saw him next the following morning in front of the police station, sitting in the tray of a truck with his hands tied together with a piece of rope and bleeding from a wound in the back of his head and also on his right arm.  Upon demand by the police officer, the author told him that he received the wounds earlier that morning and that villagers brought him to the police station.

2.4       The author made an unsworn statement from the dock, admitting that he had been with the deceased and the witnesses in the afternoon of 27 May 1988.  He stated that an argument arose between the deceased and Stewart, upon which Stewart threatened the deceased with a cutlass.  The author tried to intervene and received a blow at his right elbow, whereupon he fled the scene.  Then he fell and his next recollection was that he awoke in the bush the following morning.  He then stopped a van, which took him to the police station.  The driver treated the author's wounds with pieces of clothes.  Upon arrival, he was taken to the hospital. 

The complaint

3.1       The author claims that he is a victim of a violation of articles 7 and 10, paragraph 1, of the Covenant.  Between the date of the arrest and the date of his trial the author was remanded in custody for almost one and a half years.  During that time he was in a cell (12 x 8 ft.) in which conditions were totally unsanitary, as there was no sunlight, no air, the men had to urinate and defecate anywhere in the cell, no bedding, nowhere to wash.  After being sentenced to death, he has been detained in similar surroundings (10 x 8 ft.) with a light bulb directly overhead, which is kept on day and night.  The author claims that he does not get any visitors and lacks privacy.  He is handcuffed and placed in a box (3 x 3 ft.) when he consults his attorney.  During the interview at least two guards are standing directly behind the attorney.  Furthermore, the author was denied an eye test until September 1996, even though his glasses did not fit since 1990.  The author claims that he was prevented by the prison authorities to pick up his new glasses in person and that the glasses he received as prescribed do not sufficiently correct his sight. 

3.2       It is also submitted that the long period of detention on death row constitutes a violation of article 7.

3.3       Furthermore, the author claims that he is a victim of a violation of articles 9, paragraph 3, and 14, paragraph 3 (c), since he was held for almost one and a half years in custody before being brought to trial on 6 October 1989.

3.4       It is further submitted that the author was deprived of his rights under article 14 of the International Covenant on Civil and Political Rights.  In this context, the author submits that he should not have been prosecuted, since important facts had not been investigated and the evidence was not sufficient to convict him.  In particular, he submits that no trail of blood was found between the distillery and the place where the corpse was found.  Furthermore, at the time of arrest on 28 May 1988, the author was told that he was detained in order to assist the police in the investigation.

3.5       It is further alleged that the jury was misdirected by the judge on the evidence given by the witness Stewart, since the judge failed to give a corroboration warning although the witness had an obvious self-interest.  Also, the judge did not leave the issue of the impact of drunkenness upon the charge to the jury, although there was sufficient evidence that the deceased and the witnesses were drunk at the time of the incident.  It is further submitted that the judge's summing-up was highly prejudicial to the author.

3.6       It is submitted that the author never saw an attorney before the day of the trial.  During the trial, legal assistance by way of legal aid was ordered and the attorneys advised the author to give unsworn evidence from the dock, threatening to withdraw from the case if he did not.  This is said to constitute a violation of article 14, paragraph 3 (b) and (d). 

3.7       As regards the appeal, it is submitted that, in December 1993, the author was assigned a legal aid attorney whom he did not want to represent him, since that attorney was just out of law school and did not know the case at all.  Although, reportedly, the author informed the legal aid authorities of his objections, counsel continued to represent him, but never consulted with him. 

The author had no opportunity to give instructions to his attorney and was not present at the appeal hearing.  It is therefore submitted that the author has been deprived of an effective appeal in violation of article 14 (5).

3.8       It is stated that the same matter has not been submitted to another procedure of international investigation or settlement.

3.9       With regard to the commutation of his death sentence in June 1996, the author complains that the decision of the President to sentence him to 75 years of imprisonment with hard labour was unlawful and discriminatory.  The author refers to the decision of the Judicial Committee of the Privy Council in the cases of Earl Pratt and Ivan Morgan and of Lincoln Anthony Guerra, and claims that his sentence should have been commuted to life imprisonment.  The author submits that 53 other prisoners, who had been on death row for murder for more than five years, saw their sentence commuted to life imprisonment, which according to the author, means that they will be released after an average period of 12 to 15 years, whereas such parole is not available to him. 

Issues and proceedings before the Committee

4.         The communication was transmitted to the State party on 12 January 1996, and the State party was requested to make any submission relevant to the admissibility of the communication, not later than 12 March 1996.  On 4 October 1996, the State party informed the Committee that the death sentence in the case of the author and in four other cases pending before the Committee had been commuted to a term of imprisonment with hard labour for a period of 75 years.  No observations concerning the admissibility of the communication were received, despite a reminder sent to the State party on 20 November 1997.

Consideration of admissibility

5.1       At its sixty-fourth session in October 1998 the Committee considered the admissibility of the communication.

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

5.3       With regard to the requirement of exhaustion of domestic remedies, the Committee noted that the author appealed his conviction and that the Judicial Committee of the Privy Council rejected his application for special leave to appeal and that domestic remedies had been exhausted.

5.4       With regard to the author's claim that the judge's instructions to the jury were inadequate, the Committee referred to its prior jurisprudence and reiterated that it is generally not for the Committee, but for the appellate courts of States parties, to review specific instructions to the jury by the trial judge, unless it can be ascertained that the instructions to the jury were manifestly arbitrary or amounted to a denial of justice.  The material before the Committee and

the author's allegations did not show that the trial judge's instructions or the conduct of the trial suffered from such defects.  Accordingly, this part of the communication was inadmissible, as the author has failed to forward a claim within the meaning of article 2 of the Optional Protocol.

6.         On 23 October 1998 the Human Rights Committee declared the communication admissible, insofar as it may raise issues under articles 7 and 10, paragraph 1, of the Covenant, concerning the conditions of the author's detention, both before and after conviction; under article 7, concerning the warrant for the author's execution after he had spent over six years on death row and after the judgement of the Privy Council in Pratt and Morgan; under articles 9, paragraph 3, and 14, paragraph 3 (c), concerning the delays in bringing the author to trial and in hearing his appeal; article 14, paragraphs 3 (b) and (d) and 5, concerning his representation at trial and at appeal; and article 26, concerning the author's claim that he is a victim of discrimination because of the sentence imposed upon him after commutation.

7.         In several letters received after the case has been declared admissible, the author repeated his earlier claims.

Consideration of the merits

8.1       On 27 November 1998, 3 August 2000, 11 October 2001, the State party was requested to submit to the Committee information on the merits of the communication.  The Committee notes that this information has not been received.

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

8.3       The Committee regrets that the State party has not provided any information with regard to the substance of the author's claims.  The Committee recalls that it is implicit in the Optional Protocol that States parties make available to the Committee all information at their disposal.  In the absence of a reply from the State party, due weight must be given to the author's allegations, to the extent that they are substantiated.

9.1       With regard to the conditions of the author's detention at State Prison, Port-of-Spain, both before and after conviction, the Committee notes that in his different submissions the author made specific allegations, in respect of the deplorable conditions of detention (see 3.1 above).  The Committee recalls its earlier jurisprudence that certain minimum standards regarding the conditions of detention must be observed and that it appears from the author's submissions that these requirements were not met during the author's detention since 28 May 1988.  In the absence of any response from the State party, the Committee must give due weight to the allegations of the author.  Consequently, the Committee finds that the circumstances described by the author disclose a violation of articles 10, paragraph 1, of the Covenant.  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, is not necessary to consider separately the claims arising under article 7.

9.2       Concerning the warrant for the author's execution after he had spent over six years on death row, the Committee reaffirms its jurisprudence that prolonged delays in the execution of a sentence of death do not, per se, constitute cruel, inhuman or degrading treatment.  The Committee, therefore, finds that the facts before it, in the absence of further compelling circumstances, do not disclose a violation of article 7 of the Covenant. 

9.3       With regard to the delays in bringing the author to trial, the Committee notes that the author was detained on 28 May 1988 and formally charged with murder on 2 June 1988.  His trial began on 6 October 1989 and he was sentenced to death on 2 November 1989.  Under article 9, paragraph 3, of the Covenant anyone arrested or detained on a criminal charge shall be entitled to trial within a reasonable time.  It appears from the transcript of the trial before the San Fernando Assizes Court that all evidence for the case of the prosecution was gathered by 1 June 1988 and no further investigations were carried out.  The Committee is of the view that in the context of article 9, paragraph 3, in the specific circumstances of the present case and in the absence of any explanation for the delay by the State party, the length of time that the author was in pre-trial detention is unreasonable and, therefore, constitutes a violation of this provision. 

9.4       With regard to the delays in hearing the author's appeal, the Committee notes that he was convicted on 2 November 1989 and that his appeal was dismissed on 22 March 1994.  The Committee recalls that all stages of the procedure must take place "without undue delay" within the meaning of article 14, paragraph 3 (c).  Furthermore, the Committee recalls its previous jurisprudence that article 14, paragraph 3 (c), should be strictly observed in any criminal procedure.  In the absence of an explanation by the State party, the Committee, therefore, finds that a delay of four years and five months between the conviction and the dismissal of his appeal constitutes a violation of article 14, paragraph 3 (c), of the Covenant in this regard.

9.5       Concerning the author's representation at trial, the Committee notes that counsel was not assigned to him until the day of the trial itself.  The Committee recalls that article 14, paragraph 3 (b), provides that the accused must have time and adequate facilities for the preparation of his defence.  Therefore, the Committee finds that article 14, paragraph 3 (b), was violated. 

9.6       The author further claims that at the Appeals Court he was assigned a legal aid attorney, whom he rejected as his representative.  Article 14, paragraph 3 (d), stipulates the right to defend oneself in person or through legal assistance of his own choosing.  However, the Committee recalls its previous jurisprudence that an accused is not entitled to choice of counsel if he is being provided with a legal aid lawyer, and is otherwise unable to afford legal representation.  Therefore, the Committee finds that article 14, paragraph 3 (d), was not violated in the present case.

9.7       Furthermore, the author claims that he was deprived of an effective appeal because he was represented by an attorney who never consulted him and to whom the author could give no instructions.  In this connection the Committee considers that appeals are argued on the basis of the record and that it is for the lawyer to use his professional judgement in advancing the grounds for appeal, and in deciding whether to seek instructions from the defendant.  The State

party cannot be held responsible for the fact that the legal aid attorney did not consult with the author.  In the circumstances of the instant case, the Committee is not in a position to find a violation of article 14, paragraph 3 (d) and 5, with regard to the author's appeals hearing.

9.8       Concerning the author's claim that he is a victim of discrimination because of the commutation of his death sentence to 75 years of imprisonment with hard labour, the Committee notes that according to information provided by the author, the State party in 1996 commuted death sentences of prisoners who had been on death row for more then five years to life imprisonment in 53 cases, on the basis of constitutional provisions on commutation of death sentences.  The Committee recalls its established jurisprudence that article 26 of the Covenant prohibits discrimination in law and in fact in any field regulated and protected by public authorities.  The Committee considers that the decision to commute a death sentence and the determination of a term of imprisonment is within the discretion of the President and that he exercises this discretion on the basis of many factors.  Although the author has referred to 53 cases where the death penalty was commuted to life imprisonment, he has not provided information on the number or nature of cases where death sentences were commuted to imprisonment with hard labour for a fixed term.  The Committee is therefore unable to make a finding that the exercise of this discretion in the author's case was arbitrary and in violation of article 26 of the Covenant.

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 disclose violations of articles 7; 9, paragraph 3; 10, paragraph 1; and 14, paragraphs 3 (b) and (c) of the Covenant.

11.       Under article 2, paragraph 3, of the Covenant, Mr. Teesdale is entitled to an effective remedy, including compensation and consideration by the appropriate authorities of a reduction in sentence.  The State party is under an obligation to ensure that similar violations do not occur in the future.

12.       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.  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 to be issued also in Arabic, Chinese and Russian as part of the present report.]

 

APPENDIX

Individual opinion of Committee member Mr. Rajsoomer Lallah (concurring)

            I agree with the views of the Committee but would wish to add some observations on the length of the term of imprisonment of 75 years to which the sentence of the author was commuted.

            The author did not raise any issue on the possible impact of the commuted sentence, by reason of its length, on the author's rights and the State party's obligations under article 10 (1) and (3) of the Covenant.  The result is that the State party was not given an opportunity of responding to that issue and the Committee could not make a pronouncement on it.

            The issue is nevertheless important as article 10 (1) requires that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.  Would imprisonment for 75 years meet that standard?

            Further, article 10 (3) requires that the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.  Both reformation and social rehabilitation assume that a prisoner will be released during his expected lifetime.  Would the commuted sentence meet this requirement?

            The State party may still wish to take these observations into account in considering the reduction of the sentence of the author.

                                                                        (Signed)  Rajsoomer Lallah

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

Individual opinion of Committee members Mr. David Kretzmer and

Mr. Ivan Shearer (partly dissenting)

            In the present case the author claimed he was a victim of discrimination since his death sentence was commuted to 75 years' imprisonment with hard labour, while in the same year, the State party commuted the death sentences of 53 prisoners to life imprisonment.  The State party did not contest these facts, nor did it offer any explanation as to the alleged difference in treatment between the author and the other persons who had been sentenced to death.  While we accept that the power to grant a pardon or commutation of sentence is by its very nature subject to wide discretion and that its exercise will be based on various factors, this power, like any other governmental power, must be exercised in a non-discriminatory manner so as to ensure the right of all individuals to equality before the law.  Once the author had argued that he had been treated in a different way from people in a like situation, it was incumbent on the State party to show that the difference in treatment was based on reasonable and objective criteria.  In our mind, in the absence of such an explanation by the State party the Committee should have held that the right of the author to equality before the law under article 26 of the Covenant was violated. 

                                                                        (Signed)  David Kretzmer

                                                                        (Signed)  Ivan Shearer

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

 

Individual opinion of Committee member Mr. Hipólito Solari Yrigoyen

(partly dissenting)

            I disagree with the Committee's conclusions with regard to the present communication on the grounds set forth below.

            The author claims that he is a victim of discrimination because his death sentence was commuted to 75 years of imprisonment with hard labour, whereas that same year the President of the State party, on the basis of sections 87-89 of the Constitution of the Republic of Trinidad and Tobago, commuted death sentences to life imprisonment in the cases of 53 prisoners who, like him, had been on death row for murder for more than five years.  The difference between the commutation of the sentences lies in the fact that in the case of life imprisonment prisoners are eligible for parole, whereas such parole is not available in the case of commutation to 75 years of imprisonment.  The State party has not contested the merits, but only the claim that there were 53 cases of commutation to life imprisonment, maintaining that there were somewhat fewer.

            The Committee notes that the commutation or pardoning of a sentence in the State party is at the discretion of the President of the Republic.  Commutation or pardon to reduce or annul a sentence imposed for one or more offences is a well‑established legal tradition.  In the Middle Ages absolute monarchs exercised the right to grant clemency, which, in modern legal systems, has devolved upon constitutional monarchs, presidents or other authorities of the highest rank in the executive institutions of a State.  But this discretionary authority has undergone significant changes over time.  While it is a prerogative of and may also be at the discretion of the holder of this authority, in this case the President of the Republic, the discretional element relates to the appropriateness of the decision; discretion is not absolute and must be based on reasonable criteria, founded in ethics and equity, so as to exclude arbitrariness.

            The right in all cases to seek pardon or commutation of a sentence, recognized by the International Covenant on Civil and Political Rights in its article 6 (4), is an absolute right possessed by any person condemned to death, but such is not true for the person with the authority to grant commutation, since this must be based on the criteria indicated above in conformity with the provisions of the Covenant.  In the present case, as stated by the author, the President of the Republic has applied treatment to the author which differs from that accorded many other convicted prisoners in similar circumstances, without there being any explanation whatsoever by the State party that the distinction was based on reasonable and objective criteria.  Accordingly the Committee concludes that the author is a victim of a violation of article 26 of the Covenant.

                                                                        (Signed)  Hipólito Solari Yrigoyen

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

E.  Communication No. 678/1996, Gutierrez Vicanco v. Peru

        (Views adopted on 26 March 2002, seventy-fourth session)*

Submitted by:                                       Mr. José Luis Gutiérrez Vivanco (represented by

APRODEH, a non-governmental organization)

Alleged victim:                          The author

State party:                                           Peru

Date of the communication:                   20 March 1995 (initial submission)

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

            Meeting on 26 March 2002,

            Having concluded its consideration of Communication No. 678/1996, submitted by Mr. José Luis Gutiérrez Vivanco under the Optional Protocol to the International Covenant on Civil and Political Rights,

            Having taken into account all the information submitted to it in writing by the author of the communication and by the State party,

            Adopts the following:

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

1.         The author of the communication dated 20 March 1995 is Mr. José Luis Gutiérrez Vivanco, a Peruvian citizen who was sentenced to 20 years' imprisonment for a

terrorist offence and later pardoned on humanitarian grounds on 25 December 1998.  He states that he is a victim of violations by Peru of articles 7 and 14 (1), (2) and (3) (b), (c), (d) and (e) of the International Covenant on Civil and Political Rights.  He is represented by the Pro Human Rights Association (APRODEH), a non-governmental organization.

The facts as submitted by the author

2.1       The author was a student in the Faculty of Biology in San Marcos University, Lima, until the time of his arrest.  He lived with his parents and seven brothers and sisters.  He suffered from a chronic cardiac insufficiency, which prevented him from engaging in strenuous physical exercise.

2.2       On 27 August 1992, the author was arrested at the home of Luisa Mercedes Machaco Rojas, his fiancée.  While he was in her house, the police arrived with his fiancée, and both were arrested and taken in a police van to the offices of the National Directorate against Terrorism (DINCOTE).  In those offices the author was beaten and later taken back to the van, where the ill-treatment continued.  He was then taken back to the DINCOTE offices.  As a result of the ill‑treatment, he had to be taken to the police hospital, where, owing to his chronic cardiac insufficiency, he was transferred immediately to the Dos de Mayo public hospital.  He remained in custody in this hospital during the 15 days of police investigation, as stipulated for terrorism cases by the relevant legislation, namely, Decree-Law No. 25,475 of 6 May 1992.

2.3       During this period of police custody the author was not represented by a defence lawyer.  However, since he had been hospitalized, he was not asked to make any statement.  He was accused by the police, on the basis of statements by other persons charged with him, of having taken part in subversive attacks against the Bata shoe shop and a restaurant.

2.4       The judicial examination was carried out in the offices of the Lima Tenth Criminal Court, which at that time specialized in terrorism cases.  In his statements before that court, the author alleged that he had been subjected to physical ill-treatment.  During the examination stage, he was represented by a lawyer of his choice. 

2.5       The oral proceedings were held at private hearings in a room at Miguel Castro Castro Maximum Security Prison, Lima, between 7 April and 17 June 1994, without the presence of witnesses or experts.  The court was composed of secret judges who conducted the proceedings behind special windows which prevented them from being identified and with loudspeakers which distorted their voices.  In addition, the judges were not necessarily specialists in criminal matters, but could be chosen from among all High Court and Labour Court judges.  During this stage of the proceedings, the author was assisted by a lawyer, who was engaged by his mother on the day when the hearings began; this lawyer was in fact representing another defendant in the same proceedings.  At the hearings, the senior government prosecutor, when making his oral charges, stated that he did not find the author criminally liable, but even so he was bringing charges against him pursuant to the law.

2.6       On 17 June 1994, the Special Terrorism Division of the Lima High Court sentenced the author to 20 years' imprisonment; this sentence was subsequently confirmed by the Supreme Court of Justice on 28 February 1995.  The Special Terrorism Division's sentence stated that the author's criminal responsibility had been proved in the interview with Lázaro Gago, one of the co-defendants, who stated that he not only knew the author and his fiancée, but had also made

his home available for them to leave the goods taken during the subversive attacks on the Bata

shoe shop.  In addition, the sentence stated that the author's congenital illness could not serve as a legal basis for exempting him from all responsibility for the offence since several of the defendants had said that he was a member of Shining Path.

2.7       After the sentence, the author's mother was informed that he must change his lawyer, since the new legislation stipulated that in trials involving a terrorist offence, defence lawyers in Peru could not represent more than one accused person at the same time, with the exception of court-appointed lawyers.

2.8       The author's mother, representing her son, lodged an application for judicial review of the facts with the Supreme Court in 1996.  This court's proceedings were written and there were no public or private hearings.  The application was dismissed on 21 April 1999.

2.9       On 25 December 1998, Supreme Decision No. 403-98-JUS granted the author a pardon on humanitarian grounds, stating that as a consequence of his illness "the above-mentioned prisoner may suffer serious events and, in addition, he is suffering from serious organic disabilities; consequently, his release will not constitute a threat to social peace and collective security".

The complaint

3.1       The author alleges that he was subjected to ill-treatment at the time of his arrest, which constitutes a violation of article 7 of the Covenant.  He adds that no investigation was undertaken into this matter, even though he reported it during the judicial examination stage.

3.2       The author alleges that there has been no trial with due guarantees, which constitutes a violation of article 14 (1) since the trial was held in private in a court composed of faceless judges, because the senior government prosecutor had an obligation under law to charge the defendants even if he considered them innocent and also because a false confession of guilt was included as evidence.

3.3       The author alleges a violation of article 14 (2) since, during the trial, account was taken only of his presence in his fiancée's home and the statement by one of his fellow defendants; no consideration was given to other evidence such as the statement by the witnesses during the police phase, the records of the body search and house search which yielded no grounds for charging him, and the medical examinations, which demonstrate that he cannot even run 50 metres without endangering his life.

3.4       The author maintains that there was unwarranted delay in reaching a decision on the application for judicial review, in violation of the provisions of article 14 (3) (c) of the Covenant.

3.5       The author alleges that he was never able to conduct his defence during the police stage since he was not present and that during the trial the law did not allow him to be defended by a lawyer of his choice, contrary to article 14 (3) (b) and (d).

3.6       He further alleges that the people who arrested him were never interrogated since the law does not allow this and that no witnesses ever appeared during the oral proceedings to challenge the statements by the fellow defendants, which may raise questions in the light of article 14 (3) (e).

Observations by the State party

4.1       In its observations of 6 January 1998 on admissibility and merits, the State party argues that the communication should be declared inadmissible in conformity with article 5 (2) (b) of the Optional Protocol since the doubts expressed by the author regarding the validity of the evidence raise a question which should be taken up nationally before a Peruvian court.

4.2       The State party considers that in the complaint it is not clearly explained which actual events and legal reasoning lead the author to conclude that there has been a violation of article 14 (1) of the Covenant.  In addition, the State party declares that there is no need to demonstrate that the guarantees of due process have been complied with since respect for minimum guarantees was implicit in the normal development of the criminal proceedings against the author, in conformity with the pre-established procedures.  In addition, if there were any comment relating to the proper development of the trial, the submission of an appeal to this end would be recorded in the relevant file, but this has not been done.  For this reason, the State party maintains that there has been no violation of the provisions of article 14 (3) (b),

(d) or (e).

4.3       The State party maintains that the presumption of the author's innocence was undermined by the police statement made by his fellow defendant, Lázaro Gago, who recognized the author and his fiancée as the persons who were keeping goods taken in the subversive attacks on the Bata shoe shop.  In addition, Luisa Machaca Rojas, the author's fiancée, declared in her police statement that she was a member of the Peruvian Communist Party - Shining Path, together with her fiancé, giving details of all the actions in which they had participated together.  Lastly, account was taken of the police statements by Daniel Prada Rojas and Jayne Taype Suárez, two fellow defendants.

4.4       As regards article 14 (3) (c), the State party affirms that although there was a certain delay in reaching a decision on the application for review, "undue" or "unwarranted" delay should have been determined by the Peruvian court competent to consider a complaint about what is claimed to be unwarranted delay in reaching a decision on an appeal.  In other words, there exists within the Peruvian judicial system appropriate remedies for claiming "undue" delay in the administration of justice, and it is for a Peruvian court to consider a question of this type.  In the present case, the relevant procedures were not used.

4.5       On 21 January 1999, the State party declared, in a note verbale, that the author had been granted a pardon on 25 December 1998 and had been released immediately.

Comments by the author

5.1       In his comments of 17 October 2000, the author responds to the State party's arguments and points out that, during the police investigation, article 6 of Decree-Law No. 25,659 was still

in force and expressly prohibited applications for guarantees, habeas corpus and amparo.  Consequently, there was no effective remedy which he could exercise in order to protect his rights to freedom and physical safety.

5.2       The author maintains that the purpose of the communication submitted is not to assert his innocence; consequently, the State party's objections referring to supposed allegations about the validity or otherwise of the evidence in determining his involvement should be dismissed.

5.3       The author refers to the State party's observations to the effect that the determining factors considered in establishing his responsibility were the police statements by the defendants, and maintains that those statements were taken at a stage when guarantees of due process do not exist.  These guarantees include access to the evidence for the prosecution, the right to interrogate witnesses for the prosecution and the right to furnish evidence in one's defence.

5.4       The author says it should be borne in mind that as of the date of his arrest article 12 of Decree-Law No. 25,475 was in force; this provision allowed the police to hold detainees incommunicado without judicial authorization.  In the present case, all the detainees said that they had been ill-treated while in police custody, with the result that the validity of the statements is doubtful, especially since there has been no investigation into this torture.  The author accordingly maintains that the judicial proceedings against him were a mere formality whose only purpose was to validate the improper action of the police without paying the slightest heed to the judicial action taken.  It was on this basis that the conviction was handed down, and this constituted a violation of the principle of innocence.

5.5       In relation to the possibility of lodging an appeal on the grounds of unwarranted delay in reaching a decision on the application for judicial review, the author points out that the State party has referred to the existence of a "competent Peruvian court" without saying which court this is.  In his view, it is for the State party to say specifically which courts these are and to express its acceptance of internationally recognized rights.  Furthermore, requiring an appeal against delay in reaching a decision on an application for review would lead to a never-ending succession of appeals.

Issues and proceedings before the Committee

6.1       In conformity with rule 87 of its rules of procedure, before considering any claims made in a communication, the Human Rights Committee must decide whether or not the communication is admissible under the Optional Protocol to the Covenant.

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

6.3       As to the requirement of exhaustion of internal remedies, the Committee takes note of the State party's challenge of the communication, maintaining that these remedies have not been exhausted and declaring the existence of available remedies before the competent Peruvian courts.  However, the Committee considers that the State party has not specified what type of applications the author may submit and before which courts.  Consequently, the Committee considers that in this case it has not been demonstrated that the internal judicial remedies were available.

6.4       With regard to the arguments relating to the violation of article 7 of the Covenant, the Committee observes that the State party has not touched on this question.  However, the author has not provided any details of the ill-treatment received after his arrest, nor have the medical examinations carried out by the hospital given rise to any record of such ill-treatment.  Consequently, in the present case, the Committee considers that this part of the communication is inadmissible through lack of substantiation under article 2 of the Optional Protocol.

6.5       With regard to the arguments relating to the violation of the principle of the presumption of innocence set forth in article 14 (2), the Committee considers that the arguments have not been sufficiently substantiated for the purposes of admissibility, and therefore declares them inadmissible under article 2 of the Optional Protocol.

6.6       With regard to the author's arguments that he was never able to exercise his right to defence during the police investigation, the Committee considers that the author has been unable to substantiate for the purposes of admissibility that this constitutes a violation of article 14 (3) (b); it declares this part of the communication inadmissible under article 2 of the Optional Protocol.

6.7       The Committee accordingly declares the rest of the communication admissible and will consider it as to the merits in the light of the information furnished by the parties, in conformity with the provisions of article 5 (1) of the Optional Protocol.

Consideration as to the merits

7.1       The author maintains that there has been a violation of article 14 (1) because the trial at which he was convicted of a terrorist offence was not conducted with due guarantees:  the proceedings took the form of private hearings in a court composed of faceless judges; he could not summon as witnesses the police officers who arrested and interrogated him or question other witnesses during the oral stage of the proceedings, because the law does not allow this; his right to have a lawyer of his choice was restricted; and the government prosecutor was obliged by law to bring charges against the prisoner.  The Committee takes note of the State party's declaration that the trial was conducted with minimum guarantees, since these are contained in the pre‑established procedures and the author was tried in accordance with these procedures.  Nevertheless, the Committee recalls its decision in the Polay Campos v. Peru case regarding trials held by faceless courts, and trials in prisons to which the public are not admitted, at which the defendants do not know who are the judges trying them and where it is impossible for the defendants to prepare their defence and question witnesses.  In the system of trials with "faceless judges" neither the independence nor the impartiality of the judges is guaranteed, which contravenes the provisions of article 14 (1) of the Covenant.

7.2       With regard to the author's claim that there was a violation of article 14 (3) (c), the Committee considers that the State party has confined itself to maintaining that the said delay ought to have been complained of in the national courts and has not succeeded in demonstrating why, in the circumstances of the case, no decision was taken on the application for review until 1999; that application had been made in 1996.  The Committee accordingly considers that there has been a violation of article 14 (3) (c).

8.         The Human Rights Committee, acting under article 5 (4) of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts which have been set forth constitute violations of article 14 (1) and (3) (c), of the Covenant.

9.         Under article 2 (3) (a) of the Covenant, the State party has the obligation to provide an effective remedy, including compensation, to Mr. José Luis Gutiérrez Vivanco.  In addition, the State party has the obligation to ensure that similar violations do not occur in the future.

10.       Bearing in mind that, in acceding to the Optional Protocol, the State party has recognized the Committee's competence to determine whether there has been a violation of the Covenant and that, under 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 applicable remedy in the event that a violation has been found to have been committed, the Committee wishes to receive information from the State party within 90 days on the measures it has adopted to give effect to the Committee's decision.  It also requests the State party to publish the Committee's decision.

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

Notes

APPENDIX

Individual opinion of Committee member Mr. Ivan Shearer (partly concurring)

            I have joined the Views of the Committee in this case.  However, I think it desirable to make clear that the Committee has not condemned the practice of "faceless justice" in itself, and in all circumstances.  The practice of masking, or otherwise concealing, the identity of judges in special cases, practised in some countries by reason of serious threats to their security caused by terrorism or other forms of organized crime, may become a necessity for the protection of judges and of the administration of justice.  When States parties to the Covenant are faced with this extraordinary situation they should take the steps set out in article 4 of the Covenant to derogate from their obligations, in particular those arising from article 14, but only to the extent strictly required by the exigencies of the situation.  These statements of derogation should be communicated to the Secretary-General of the United Nations in the manner provided in that article.  In formulating any necessary statements the States parties should have regard to General Comment No. 29 (States of Emergency) adopted by the Committee on 24 July 2001.  In the present case the State party presented no observations on the claims of the author based on any situation of emergency.  Nor had the State party made any declarations of derogation under article 4 of the Covenant.  Hence those possible aspects of the case did not arise for determination.

                                                                        (Signed)  Ivan Shearer

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

F.  Communication No. 683/1996, Wanza v. Trinidad and Tobago

(Views adopted on 26 March 2002, seventy-fourth session)*

Submitted by:                                       Mr. Michael Wanza (represented by Stephen Chamberlain

                                                            of the London law firm of Nabarro Nathanson)

Alleged victim:                          The author

State party:                                           Trinidad and Tobago

Date of communication:             11 March 1996 (initial submission)

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

            Meeting on 26 March 2002,

            Having concluded its consideration of Communication No. 683/1996, submitted to the Human Rights Committee by Mr. Michael Wanza under the Optional Protocol to the International Covenant on Civil and Political Rights,

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

            Adopts the following:

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

1.         The author of the communication is Michael Wanza, a Trinidadian citizen and former mason, born in 1964, who at the time of the submission of the communication was awaiting execution at the Frederick Street State Prison in Port-of-Spain.  He claims to be a victim of violations by Trinidad and Tobago of articles 7, 10, paragraph 1, 14, paragraphs 3 (c) and 5, of the Covenant.  He is represented by counsel.  On 24 June 1996, the author's death sentence was commuted to 75 years' imprisonment with hard labour.

The facts as submitted by the author

2.1       Mr. Wanza was convicted of murder in the High Court of Port-of-Spain on 28 February 1989 and sentenced to death.  The Court of Appeal of Trinidad and Tobago dismissed his appeal on 20 January 1994.  A subsequent petition for special leave to appeal was dismissed by the Judicial Committee of the Privy Council on 11 December 1995.

2.2       On 8 March 1996, a warrant was read to Mr. Wanza for his execution to take place on 13 March 1996.  A constitutional motion was filed on his behalf after the issuance of the warrant, with a view to obtaining a stay of execution.  A stay was granted, pending the result of the hearing of the constitutional motion.  On 11 March 1996, the author's representative submitted the case under the Optional Protocol; a request for interim protection under rule 86 of the Committee's rules of procedure was issued on 14 March 1996.  In June 1996, the author's death sentence was commuted and he was removed from the death row section of the prison.

The complaint

3.1       Counsel contends that Mr. Wanza is a victim of a violation of articles 7 and 10, paragraph 1, since he was detained on death row for a period of seven years and four months between his conviction and the commutation of his death sentence in June 1996.  In his initial submission, counsel argues that the delay would make the execution of the death sentence unconstitutional.  Reference is made in this respect to the jurisprudence of the Judicial Committee of the Privy Council in Pratt and Morgan and in Guerra v. Baptiste, and of the Supreme Court of Zimbabwe.

3.2       Counsel contends that the anguish suffered by Mr. Wanza over a period exceeding seven years, during which he constantly faced the prospect of his own execution, combined with the conditions under which he was detained in the death row section of the State Prison, amount to cruel, inhuman and degrading treatment within the meaning of articles 7 and 10 (1) of the Covenant.  In this context, counsel submits that the author was confined alone in his cell for 22 hours a day, and that he spends much of his time in enforced darkness.

3.3       From the author's affidavit in support of his constitutional motion, it appears that he claims that he is confined in a small cell (nine by six feet), which contains a bed, table, chair and a slop pail.  There is no window, only a small ventilation hole of 18 by 8 inches.  The entire cell block is illuminated by means of fluorescent lights which are kept on all night and affects the author's ability to sleep.  Apart from the customary one hour exercise in the yard, he was only permitted to leave his cell to meet with visitors and to have a bath once a day.  On Sundays and holidays he could not leave the cell because of lack of prison staff.

3.4       Counsel alleges a violation of article 14, paragraph 3 (c), juncto paragraph 5, because of the Court of Appeal's failure to hear Mr. Wanza's appeal within a reasonable time:  it is submitted that a delay of almost five years for adjudicating an appeal against conviction and sentence in a capital case is wholly unacceptable.  Reference is made to General Comment 13 [21] of the Human Rights Committee.

State party's observations

4.         By submission received on 9 July 1996, the State party argues that because of the author's pending constitutional motion, the complaint should be held inadmissible on the ground of non-exhaustion of domestic remedies.  On 4 October 1996, the State party confirms the commutation of the author's death sentence to 75 years' imprisonment with hard labour.

The Committee's admissibility decision

5.1       At the sixty-first session, the Committee considered the admissibility of the communication.  It observed that the constitutional motion filed on the author's behalf has become moot with the commutation of his death sentence by the President of Trinidad and Tobago and that accordingly, there were no further available and effective remedies which the author would be required to exhaust.

5.2       The Committee considered that the author had sufficiently substantiated, for purposes of admissibility, his claims under articles 7 and 10 (1), insofar as they related to the conditions of his detention on death row, and under article 14, paragraph 3 (c), juncto paragraph 5, on account of the delay in the adjudication of his appeal.

6.         Accordingly, on 14 October 1997, the Committee declared the communication admissible insofar as it appeared to raise issues under articles 7, 10 (1) and 14, paragraph 3 (c), juncto paragraph 5, of the Covenant.

State party's submission on the merits

7.1       By note of 12 May 1999, the State party forwarded its observations on the merits of the communication.  With regard to the conditions of detention, the State party notes that the author has made only general allegations, such as that he was confined in a single cell for 22 hours per day and that much of his time was spent in enforced darkness.  The State party denies that the conditions of the author's detention, either on death row or since the commutation of his sentence, violate the Covenant.  In this connection, the State party refers to court judgements in cases where similar allegations were made and where the court, after having heard both prison officials and convicts found that the circumstances did not amount to cruel treatment.  The State party also refers to the Human Rights Committee's Views in the case of Dole Chadee et al., where the Committee found no breach of article 10 of the Covenant with regard to prison conditions in Trinidad and Tobago.  The State party concludes that at all times the author has been treated with respect for the inherent dignity of the human person and that he has produced no evidence to substantiate the allegation of torture, cruel, inhuman or degrading treatment or punishment.

7.2       With regard to the author's claim that he is a victim of a violation of articles 7 and 10 of the Covenant, because of the length of time spent on death row, the State party refers to the Human Rights Committee's jurisprudence that prolonged detention on death row does not per se constitute cruel, inhuman or degrading treatment in the absence of some further compelling circumstances.  In the present case, no such circumstances exist, according to the State party. 

The State party rejects the author's argument that conditions of detention may render the carrying out of the death sentence unlawful and refers in this context to Fisher v. Minister of Public Safety (No.1) [1998] A.C. 673 and Hilaire and Thomas v. A.G. of Trinidad and Tobago [1999].

7.3       With regard to the alleged delay in hearing the appeal, the State party argues that the period between the conviction and the hearing of the appeal was not unreasonable in the circumstances prevailing in the country at that time (following an attempted coup d'état).  There had been an increase in the crime rate putting great pressure on the courts and leading to a backlog of cases.  Difficulties were also experienced in the speedy preparation of a complete and accurate court record, causing delays.  Since then, procedural reforms have been carried out to avoid such delays.  Financial and other resources have been allocated to the judiciary and additional judges have been appointed both to the High Court and to the Court of Appeal.  A computer aided transcription unit has been put in place to ensure the availability of a complete and accurate court record with the minimum of delay.  As a result, appeals are now heard within one year of the conviction.

8.         Despite two reminders, no comments to the State party's submissions were received from the author's counsel.

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       With regard to the author's claim that his conditions of detention amounted to a violation of articles 7 and 10 (1) of the Covenant, the Committee notes that the information provided by counsel and the author contradicts itself in respect to the light in the cell.  However, the remaining specific allegations on the poor conditions of detention, in particular, that the cell is small and does not contain a window but a ventilation hole of 18 by 8 inches, that the author was kept in this cell for 22 to 23 hours a day, and that on weekends and holidays he was not allowed to leave the cell because of lack of prison staff, have not been contested by the State party, except in a very general way.  According to the Committee's prior jurisprudence, such conditions sustain the finding of a violation of article 10 (1) in the instant case.  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 consider separately the claims arising under article 7.

9.3       With regard to the author's claim that his prolonged detention on death row constitutes a violation of articles 7 and 10 (1), the Committee notes that the author was kept on death row from his conviction on 28 February 1989 until 24 June 1996, when his sentence was commuted.  The Committee refers to its previous jurisprudence that prolonged detention on death row per se does not constitute a violation of articles 7 and 10 (1) of the Covenant, in the absence of further

compelling circumstances.  In the Committee's opinion, the facts before it do not show the

existence of further compelling circumstances beyond the length of detention on death row.  The Committee concludes that in this respect the facts do not reveal a violation of articles 7 and 10, paragraph 1 of the Covenant.

9.4       With regard to the delay of almost five years between the author's conviction and the determination of his appeal, the Committee has noted the State party's explanations in particular its statement that it has taken steps to remedy the situation.  Nevertheless, the Committee wishes to emphasize that the rights set forth in the Covenant constitute minimum standards which all States parties have agreed to observe.  Article 14, paragraph 3 (c), states that all accused shall be entitled to be tried without delay, and this requirement applies equally to the right of review of conviction and sentence guaranteed by article 14, paragraph 5.  The Committee considers that the period of almost five years between the author's conviction in February 1989 and the judgement of the Court of Appeal, dismissing his appeal, in January 1994, is incompatible with the requirements of article 14, paragraph 3 (c) juncto article 14, paragraph 5 of the Covenant.

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 disclose a violation of articles 10, paragraph 1, and 14, paragraph 3 (c) juncto paragraph 5, of the Covenant.

11.       In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Mr. Wanza with an effective remedy, which includes consideration of early release.

12.       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 to be issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

G.  Communication No. 684/1996, Sahadath v. Trinidad and Tobago

                          (Views adopted on 2 April 2002, seventy-fourth session)*

Submitted by:                                       Mr. R. S. (represented by Saul Lehrfreund of the London

                                                            law firm of Simons Muirhead and Burton)

Alleged victim:                          The author

State party:                                           Trinidad and Tobago

Date of communication:                         13 March 1996 (initial submission)

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

            Meeting on 2 April 2002,

            Having concluded its consideration of Communication No. 684/1996, submitted to the Human Rights Committee by Mr. R.S. 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

1.1       The author of the communication, dated 13 March 1996, is Mr. R.S., a Trinidadian citizen who claims to be a victim of a violation by Trinidad and Tobago of articles 6 (1), 7 and 10 (1) of the International Covenant on Civil and Political Rights (the Covenant).  He is represented by counsel. 

1.2       In accordance with rule 86 of the Committee's rules of procedure, the Committee requested the State party not to carry out the death sentence against the author while this communication was being considered.  By letter of 4 October 1996, the State party informed the Committee that the death sentence of the author had been commuted to a term of imprisonment with hard labour for a period of 75 years.

The facts as submitted by the author

2.1       The author was convicted of murder and sentenced to death on either 14 January 1991 or 1992.  The Court of Appeal of Trinidad and Tobago dismissed his appeal on 12 April 1994.  The Judicial Committee of the Privy Council dismissed a subsequent petition for special leave to appeal on an unspecified date.

2.2       On 8 March 1996, the author was read a warrant for his execution on 13 March 1996. 

On Tuesday, 12 March 1996, a stay of execution was granted, with a view to obtaining a full psychiatric examination of the author.  The author is believed to be mentally deficient, and counsel argued, in his initial submission, that it would be in violation of his rights under the Covenant to execute him under these circumstances.

2.3       On 9 March 1996, the author was visited at the State Prison by his counsel, Douglas Mendes.  When counsel arrived at the prison gate and requested to see the author, the officer on duty made a circular motion with his index finger near his head, to indicate that the author was insane.  The officer asked counsel whether in the circumstances he would still like to see the author and, upon counsel's insistence, said that special security arrangements would have to be made for the interview.

2.4       During the interview, counsel asked the author whether he wanted a constitutional motion to be filed on his behalf or not.  At first, the author indicated that he wanted to be executed.  After further discussion, he agreed to the filing of a constitutional motion.  When counsel pointed to the contradictory behaviour of the author, the latter replied that he was confused and could not decide.  Counsel ended the interview by telling the author that he would return later in the day, to allow him to make up his mind.

2.5       The author's appearance and demeanour, coupled with the prison guard's comments on his insanity, made counsel believe that the author was of unsound mind.  He thus contacted a psychiatrist, Peter Lewis, who accompanied him to the prison in the afternoon of 9 March 1996.  Mr. Mendes asked the author whether he wanted a constitutional motion to stop his execution to be filed, and the author replied in the affirmative.  For the rest, counsel could not obtain further information from the author:  he gave different dates for his conviction, was unaware that an appeal had been heard or that a petition to the Judicial Committee of the Privy Council had been filed.  He could not remember the name of the lawyer who had represented him on trial and said that no lawyer had ever visited him for the preparation of the appeal.  He further could not remember the name of the person of whose murder he had been convicted.

2.6       After interviewing the author, Mr. Lewis concluded in an affidavit that the author "is experiencing auditory hallucinations and is probably suffering from severe mental illness that may be significantly affecting his ability to think and behave normally.  I recommend that a detailed examination of his mental status be conducted in order to determine the extent and nature of Mr. R.S.'s disorder".

2.7       With regard to the conditions of detention of the author, counsel submits that he visited the prison where the author was detained, on 16 July 1996, in order to meet with clients and to receive some information on this issue.  Counsel then states the following:

            "The information gained from 3 prisoners who had their sentences commuted from death to life imprisonment in 1984 reveal conditions which appear to be quite appalling, with far too many people sharing a single cell, no space to lie down let alone sleep, and degrading sanitary arrangements, to say nothing on the absence of useful employment, education and recreational facilities.

            "Prisoners who have had their sentence commuted to life imprisonment share cells measuring approximately 9'x 6' with between 9 and 12 other prisoners.  Each cell consists of 2 bunks, therefore only 4 men can sleep at any one time.  All the occupants of the cell share a single plastic bucket for all toilet functions.  They are permitted to empty the contents of the bucket once a day.  Ventilation consists of a single barred window measuring approximately 2 foot square.  Each prisoner spends an average of 23 hours each day locked inside his cell, although exceptionally and unpredictably he and his cell mates are allowed out for as long as 6 hours."

2.8       As to detention on death row, counsel refers to the affidavits made by four other prisoners on death row, who were due to be executed at the same time as the author, and concludes that similar conditions applied to the author.  Counsel submits the following:

            "The prisoners are kept confined in a very small cell measuring approximately 9 feet by 6.  The cell contains a bed, table, chair and 'Slop Pail', that is, a bucket provided to each prisoner to use as a toilet.  There is no window, only a small ventilation hole, measuring 18 inches by 8 inches approximately.  The entire cell block is illuminated by means of fluorescent lights which are kept on all night and affects my [sic] ability to sleep.  They are kept in this cell 23 hours every day except on weekends, public holidays, and days of staff shortage, when they are shut in for the entire 24 hours.  Apart from the customary one hour exercise in the exercise yard, they are only permitted to leave their cells to meet with visitors and to have a bath once a day during which time they clean out their slop pail.

            "The hour's exercise is conducted with handcuffs on in an extremely small enclosure thus making meaningful exercise extremely difficult if not impossible.  Visiting and other privileges are severely restricted.  They are allowed two visits per week each of only 20 minutes duration.  Writing materials are provided only upon a request being entered in the request book.  Often there is no paper or pens available.  Writing is permitted only between 4.30 p.m. and 7.15 p.m. on weekends and public holidays.

            "The persons on death row are subjected to three searches of cell and body every day.  The final such search is conducted at 9.30 at night at which time they are often asleep.  They will be awakened and searched accordingly.  Shortly after this search, the three electronic alarm bells in death row are tested.  The resulting effect of the noise

makes it difficult to return to sleep, concluding that the author notes that cells measure approximately 9 by 6 feet, with an 18 inch hole for ventilation.  The death row section is entirely illuminated by fluorescent lights, including at night, thereby impeding sleep.  Prisoners are only allowed out of their cells one hour per day, except on weekends, when they are kept in 24 hours because of shortage of staff.  Meaningful exercise is impossible, as prisoners remain handcuffed during the exercise period.  They are permitted two 20‑minute visits per week, and writing pads and books are severely restricted."

The complaint

3.1       The author submits that to issue a warrant for the execution of a mentally incompetent prisoner is in violation of customary international law and claims that he is a victim of violations of articles 6, 7 and 10 (1) of the Covenant, juncto ECOSOC resolutions 1984/50 and 1989/64, as he was kept on death row facing execution until July 1996, in his state of mental disturbance.  The lack of psychiatric care at the State Prison in Port-of-Spain is also said to constitute a violation of articles 22(1), 24 and 25 of the United Nations Standard Minimum Rules for the Treatment of Prisoners.

3.2       The author argues that the psychological stress to which he was submitted before and after the issue of the warrant for his execution amounts to a violation of articles 7 and 10 (1).  In this context, he points out that the practice in Trinidad was to read no more than two warrants of execution on the same day and at the same hour because the State Prison is not equipped to handle more executions simultaneously.  In the author's case, five warrants were read on the same day and hour.  In such circumstances, it is argued, the author would be forced to await his turn at the gallows, having to endure the sounds of and thoughts about the execution of the other prisoners taking place, possibly over hours.

3.3       Apart from the psychological stress, the author contends, the conditions of his detention both on death row and after commutation of his sentence at the end of June 1996 constitute violations of articles 7 and 10 (1). 

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

4.1       In a submission dated 21 June 1996, the State party made its observations on the admissibility of the communication.

4.2       The State party argued that because of the author's pending constitutional motion, the complaint should be held inadmissible on the basis of non-exhaustion of domestic remedies. 

Decision on admissibility

5.1       At its sixty-first session, the Committee considered the admissibility of the communication.  It observed that the constitutional motion filed on behalf of the author had become moot with the commutation of his death sentence by the President of Trinidad and Tobago.  Accordingly, there were no further available and effective remedies, which the author was required to exhaust.

5.2       The Committee noted that the author had sufficiently substantiated, for purposes of admissibility, his claims under articles 6, 7 and 10 (1), insofar as they relate to the question of the circumstances of the issue of the warrant for his execution, lack of psychiatric treatment while on death row, and the conditions of detention both during his detention on death row and after commutation of his sentence.  Accordingly, on 14 October 1997, the Committee declared the communication admissible as far as it raised issues under articles 6, 7 and 10 (1), of the Covenant.  It also requested the State party to transmit to the Committee a copy of the trial transcript and of the judgement of the Court of Appeal in the case.

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

6.         Despite having been invited to do so by the decision of the Committee of 14 October 1997 and by two reminders of 22 September 2000 and 11 October 2001, the State party has not submitted any observations or comments on the merits of the case.

Issues and proceedings before the Committee

7.1       Having found the case admissible, the Committee proceeds to an examination of the substance of the author's 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 author's claim that issuing of a warrant for the execution of a mentally incompetent person constitutes a violation of articles 6 and 7 of the Covenant, the Committee notes that the author's counsel does not claim that his client was mentally incompetent at the time of imposition of the death penalty and his claim focuses on the time when the warrant for execution was issued.  Counsel has provided information that shows that the author's mental state at the time of the reading of the death warrant was obvious to those around him and should have been apparent to the prison authorities.  This information has not been contested by the State party.  The Committee is of the opinion that in these circumstances issuing a warrant for the execution of the author constituted a violation of article 7 of the Covenant.  As the Committee has no further information regarding the author's state of mental health at earlier stages of the proceedings, it is not in a position to decide whether the author's rights under article 6 were also violated. 

7.3       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, in the absence of a response by the State party to the conditions of detention as described by the author, the Committee notes that author's counsel has provided a detailed description of the conditions in the prison in which the author was detained and has also claimed that no psychiatric treatment was available in the prison.  As the State party has made no attempt to challenge the detailed allegations made by author's counsel, nor to contest that these conditions applied to the author himself, the Committee must give due credence to the counsel's allegations.  As to whether the conditions as described violate the Covenant, 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 consider separately the claims arising under article 7.

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

9.         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, including appropriate medical and psychiatric care.  The State party is also under an obligation to improve the present conditions of detention so as to ensure that the author is detained in conditions that are compatible with article 10 of the Covenant, or to release him, and to prevent similar violations in the future.

10.       On becoming a party to the Optional Protocol, the State party 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 the State party'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.  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 to be issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

H.  Communication No. 695/1996, Simpson v. Jamaica

                                      (Views adopted on 31 October 2001, seventy-third session)*

Submitted by:                                       Mr. Devon Simpson (represented by counsel,

                                                            Mr. J. E. Jamison and Mr. Jeremy Kosky of

                                                            Clifford Chance, a law firm in London)

Alleged victim:                          The author

State party:                                           Jamaica

Date of communication:             19 March 1996 (initial submission)

Decision on admissibility:                       29 October 1998

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

            Meeting on 31 October 2001,

            Having concluded its consideration of Communication No. 695/1996, submitted to the Human Rights Committee by Mr. Devon Simpson 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 (initial submission dated 19 March 1996) is Devon Simpson, a Jamaican citizen, born on 17 August 1952, at the time of submission awaiting execution in St. Catherine's District Prison, Jamaica.  His death sentence was commuted to life imprisonment on 24 February 1998.  The author claims to be a victim of violations of articles 7 and 10, paragraph 1, and 14, of the International Covenant on Civil and Political Rights.  He is represented by counsel.

Facts as presented by the author

2.1       On 15 August 1991, the author was arrested on suspicion of murder.  He was assaulted by the police and was refused medical treatment.  He did not bring this matter to the attention of the authorities, as he was not aware that the beatings violated his rights.  He was kept in a cell with 17 other inmates at the Half-Way-Tree Police Lock Up, where some of the inmates had already been convicted.  Shortly afterwards, he was moved to the General Prison, where he shared a cell of 8 by 4 feet with five other inmates.  There was no artificial light in the cell, no slop bucket, and he was only allowed to use the toilet once a day.

2.2       The author was provided with a lawyer by the Court Registrar as he did not have the means to hire one privately.  He did not meet his lawyer before the preliminary hearing and his representation at the preliminary hearing was poor.  The author's lawyer was not present for the hearing of two of the four prosecution witnesses as he claimed that he had to leave to be present in another court.

2.3       At trial the author was represented by three lawyers.  The author only met one of the lawyers on one occasion for 15 minutes before the beginning of the trial.  The lawyers did not sufficiently challenge the evidence against the author.  In particular, the description given by one of the prosecution witnesses of the attacker, did not correspond with his physical characteristics, and this was not sufficiently pointed out by the author's lawyer.  Consultations between the author and his lawyers during the trial were irregular.

2.4       At the beginning of the trial, the author was charged with two counts of non-capital murder.  However, on the fifth day of the trial, the Judge allowed the amendment of the charges to capital murder.  The author was re-arraigned, although, apparently by error, the charges put to the author were again charges of non-capital murder.  Despite this, the judge appears to have assumed that he was hearing a capital murder trial.  The author states that as a result of the amendment, he became nervous and consequently did not give a clear statement from the dock.

2.5       On 6 November 1992, the author was convicted of two offences of capital murder and sentenced to death by the Home Circuit Court in Kingston.

2.6       Since his conviction, the author has been confined in a cell alone for periods of up to 22 hours each day, most of his waking time is spent in darkness making it impossible for him to keep occupied.  Slop buckets are used, filled with human waste and stagnant water, and only emptied once per day.  There is also no running water provided in the author's cell.  Consequently, the author has to wait until he is released to get running water which he then stores in a bottle.  It is also stated that the author slept on cardboard and newspapers on concrete until October 1994 when he was provided with an old mattress.

2.7       For several years the author has been experiencing an undiagnosed and untreated medical condition giving rise to symptoms of great pain and swelling in his testicle.  He complains of a back problem, from which he has suffered since childhood, and which makes it difficult for him to sit upright for a long period of time.  He has also developed eye problems because of the darkness in his cell.  Although he was visited by a doctor in prison, the tablets the author has been given do not provide any relief and he has been refused specialist treatment.

2.8       Leave to appeal against convictions was granted by the Court of Appeal and the appeal was heard from 13 to 15 April and on 9 May 1994.  The Court of Appeal allowed the author's appeal against both convictions of capital murder.  It substituted convictions of non-capital murder, and passed a sentence of death upon the author, pursuant to section 3 (1A) of the Offences Against the Person (Amendment) Act 1992, which provides that multiple convictions of non-capital murder carry the death sentence.  The author then appealed to the Judicial Committee of the Privy Council; the author's counsel considered that there were no grounds in law to appeal against conviction and petitioned solely against sentence.  Special leave to appeal as a poor person was granted and the appeal was heard on 12 February 1996; on 7 March 1996, the Privy Council refused the appeal and upheld the imposition of the death sentence.

2.9       On 19 March 1996 the author, through his lawyers, petitioned the Human Rights Committee that a stay of execution be requested under rule 86 of its rules of procedure.  On 4 April 1996, the author was placed in the "condemned cell" where a warrant for his execution on 18 April 1996 was read to him.  On 11 April 1996, the Human Rights Committee, through its Special Rapporteur for New Communications, requested the State party not to carry out the death sentence against Simpson while his communication was under examination by the Committee.  On 12 April 1996, the State party granted the author a stay of execution.

The complaint

3.1       Counsel claims that the author is a victim of violations of articles 7 and 10, paragraph 1, of the Covenant.  The author was held in St. Catherine's District Prison on death row for over five years, which is said to constitute inhuman and degrading treatment.  Counsel submits that, according to the Privy Council's judgement in Earl Pratt and Ivan Morgan v. the Attorney‑General of Jamaica [1994] 2 AC 1, "... in any case in which an execution is to take place more than 5 years after sentence there will be strong grounds for believing the delay is such as to constitute inhuman or degrading punishment or other treatment".

3.2       Additionally, counsel claims that:  (a) the conditions, described above in paragraphs 2.1 and 2.6, in which the author has been detained since his arrest, as well as his lack of medical treatment described above in paragraphs 2.1 and 2.7, amount themselves to cruel, inhuman and degrading treatment and punishment, in breach of articles 7 and 10, paragraph 1, of the Covenant; and (b) the period of delay, when addressed in the context of the conditions of detention and lack of medical treatment, constitutes a breach of articles 7 and 10, paragraph 1, of the Covenant.  In this respect, counsel submits that numerous non-governmental organizations have reported on the appalling conditions of the prison regime at St. Catherine's District Prison, observing that the facilities are poor:  no mattresses, bedding or furniture in the cells; no sanitation in the cells; broken plumbing, piles of refuse and open sewers; until 1994 there was no artificial lighting in the cells; there are only small air vents through which natural light can enter; no employment opportunities available to inmates; no proper facilities to wash and infrequent permission to wash; no doctor attached  to the prison, so that medical problems are generally treated by warders who receive very limited training; and inmates on death row occupy single cells where they are generally confined more than 18 hours per day. 

3.3       Counsel cites the Committee's Views on Communication No. 458/1991 (A. Mukong v. Cameroon), in which the Committee stated that "certain minimum standards regarding the conditions of detention must be observed regardless of the State party's level of development.  (...)  It should be noted that these are minimum requirements which the Committee considers should always be observed, even if economic or budgetary considerations may make compliance with these obligations difficult".

3.4       Counsel also claims that the author is a victim of article 14, paragraph 3 (g), because he was assaulted in the police station after his arrest.

3.5       In addition, counsel complains about the mental anguish, caused to the author by his placement in the "condemned cell".  It is argued that the author's state of mind at the time rested so much on the belief that a stay of execution would be put in place, that the failure of the Human Rights Committee to issue a rule 86 request, seeking a stay of execution on behalf of the author, within a reasonable time was inhuman and degrading.

3.6       Counsel refers to the irregularity in amending the charges against the author during the trial, and claims that the irregularity was such that the Court of Appeal should have ordered a retrial, rather than correcting it on paper by substituting convictions of non-capital murder.  It is alleged that the Court of Appeal's failure to do so amounts to a violation of article 14, paragraph 1, in that the author was denied a fair trial.

3.7       It is also argued that, because of the amendment to the charges on the fifth day of the trial, article 14, paragraph 3 (a) and (b), were violated, since the author did not have time to communicate with his attorney about the true nature of the charge against him, and did not appreciate the consequence of the charges being upheld.  It is argued that the defence may well have been conducted differently, if the author had been informed at the outset that he would be charged with capital murder.  In this context, it is pointed out that the author's case was one of the first to be tried under the Offences against the Person (Amendment) Act 1992, and that Jamaican practitioners at the time were still grappling with the meaning and implications of the amended Act.

3.8       It is further claimed that, prior to the preliminary hearing, the author had inadequate time and facilities to prepare his defence and communicate with his attorney, in violation of article 14, paragraph 3 (b), and an inadequate opportunity to examine or procure witnesses, in violation of article 14, paragraph 3 (e).  In this context, counsel claims that the fact that the author did not meet with his lawyer prior to the preliminary hearing violates paragraph 3 (b), and his lawyer's failure to be present for the examination of two of the witnesses violates paragraph 3 (e). Counsel claims that as there was insufficient preparation for his preliminary hearing, this culminated in poor quality representation at the trial hearing.  Counsel also claims a violation of article 14, paragraph 3 (b) because of the lack of consultation he had with his lawyer prior to the hearing itself.  He claims that the author was only allowed 15 minutes with his lawyer when the prison warden asked her to leave.  In addition, counsel claims a violation of article 14, paragraph 3 (e) because of counsel's behaviour during the trial as described in paragraph 2.3 above.

3.9       Counsel notes that with the Privy Council's decision, all available domestic remedies have been exhausted.  He adds that a constitutional motion to the Supreme (Constitutional) Court of Jamaica is not a remedy available to the author.  Counsel further claims that constitutional remedies are in practice not available to indigents such as his client, since the State party does not provide legal aid for constitutional motions.  He also claims that administrative remedies available to the author do not give a reasonable prospect of success.  

State party's submission on admissibility and counsel's comments thereon

4.1       In its submission of 10 October 1996, the State party denies that the length of the author's stay on death row constitutes a breach of the Covenant and refers to the Committee's jurisprudence.  The State party also denies that the conditions of the author's detention on death row constitute a violation of article 10 of the Covenant.

4.2       In a further submission, dated 12 March 1997, the State party addresses the author's complaint concerning the amendment of the charges against him.  The State party notes that this complaint was addressed by the Court of Appeal which chose to substitute convictions of non‑capital murder.  However, this decision did not affect the death sentence, because the Court of Appeal held that under the applicable statute the sentence for capital murder and for the instant case of multiple non-capital murder was the same.  Thus, the State party is of the opinion that the matter was adequately dealt with by the Court of Appeal.

4.3       As to the manner in which counsel conducted the defence at trial, the State party does not accept that there was a breach of the Covenant for which the State can be held responsible.  The State party explains that a thorough reading of the Act would show that where a person is convicted of more than one offence of non-capital murder, the outcome will be a death sentence.

4.4       With regard to the author's claim that he was assaulted by the police upon arrest, the State party notes that he did not bring this matter to the attention of the authorities, allegedly because he did not know that the beatings violated his rights.  The State party finds this very difficult to believe and states that in the absence of any evidence to support the author's allegation, it does not accept that the alleged beating occurred.

4.5       With regard to the author's representation at the preliminary hearing, the State party submits that it is its responsibility to appoint competent counsel, but denies any responsibility for the way counsel conducts the defence.

4.6       The State party indicates that, with respect to the alleged violations of articles 7 and 10 (1), it will investigate the allegations concerning the alleged lack of medical treatment as well as the circumstances under which the author was placed in the condemned cell.

5.1       In a letter, the author states that on 5 March 1997, during a search, the warders destroyed his bed, some of his clothes, and some documents he had in his cell.  They also removed his light bulb.

5.2       In his comments on the State party's submission on 12 March 1997, counsel argues that it is not enough for the State party to say that the result of the trial was fair, even though the conduct of the trial was irregular.  Counsel underlines that the effect of the last minute amendment to the charges was not confined to the sentence, but had an impact on the author's mental state, which in turn affected the way and the extent to which he was able to participate in the conduct of his own defence.  According to counsel, this may have affected the nature of the evidence adduced in Court.  The Court of Appeal should thus have ordered a retrial and not simply substituted the sentence.

5.3       With regard to the representation at the preliminary hearing, counsel argues that any lawyer who fails to listen to the evidence of two out of four of the prosecution witnesses and who fails to discuss the case with his client before the hearing cannot be described as "competent".

Admissibility considerations

6.1       During its sixty-fourth session, the Committee considered the admissibility of the communication.

6.2       With regard to counsel's claim that there was insufficient time to prepare the author's defence, since his lawyers came to see him only once before the trial, the Committee noted that it would have been for the author's representatives or the author himself to request an adjournment at the beginning of the trial, if they felt that they did not have enough time to prepare the defence.  It appears from the trial transcript that no adjournment was sought at the beginning of the trial, and that on a further occasion, an adjournment was granted by the judge to the defence counsel to study new evidence.  The Committee considered therefore that this claim was inadmissible under article 2 of the Optional Protocol, as being unsubstantiated (para. 3.8).

6.3       With respect to the complaint that the author's representative did not properly cross examine the witnesses against him, the Committee recalled its jurisprudence that a State party cannot be held responsible for the conduct of a defence lawyer, unless it was or should have been manifest to the judge that the lawyer's behaviour was incompatible with the interests of justice.   The Committee were of the view that, in this instant case, there was no reason to believe that counsel at trial was not using her professional judgement in the interests of her client, and this part of the communication was thus considered inadmissible under article 2 of the Optional Protocol (para. 3.8).

6.4       With regard to the claim under article 14, paragraph 3 (a) and (b), in respect of the amended charges against the author, the Committee noted that any irregularity caused by the amendment of the charges in this respect was redressed by the Court of Appeal's decision to quash the convictions of capital murder.  This part of the communication was thus considered inadmissible under article 2 of the Optional Protocol (para. 3.7).

6.5       With regard to the claim that the Court of Appeal's decision to change the author's convictions of capital murder to convictions of non-capital murder amounted to a denial of justice, and that the Court should have ordered a retrial instead, the Committee noted that this matter was not raised at the hearing of the author's appeal to the Judicial Committee of the Privy Council, where the only issue argued was the sentence, not the convictions.  This part of the communication was thus considered inadmissible for non-exhaustion of domestic remedies (para. 3.6).

6.6       With regard to the claim that the author was beaten upon arrest and that he was not given any medical treatment in August 1991, the Committee noted that this claim was not brought to the attention of the authorities on any occasion before the author's complaint to the Committee.  This part of the communication was thus considered inadmissible for non-exhaustion of domestic remedies (para. 2.1).

6.7       On the issue of a violation of articles 7 and 10, paragraph 1, of the Covenant because of the time the author spent on death row, the Committee referred to its jurisprudence that detention on death row for a specific period of time does not violate the Covenant, in the absence of further compelling circumstances.  In the instant case, the Committee considered that, as the author had not invoked any ground, other than the period of time, in substantiation of his claim, this part of the communication was inadmissible under article 2 of the Optional Protocol (para. 3.1).

6.8       With regard to the claim that the author suffered mental anguish because he was read a warrant of execution although his lawyer had presented a communication to the Human Rights Committee, the Committee considered that the fact that it had not requested a stay of execution before the warrant of execution was read to the author, cannot amount to a violation of the Covenant attributable to the State party.  This part of the communication was thus considered inadmissible under article 1 of the Optional Protocol (para. 3.5).

6.9       The Committee noted that the State party had indicated that it would investigate the author's complaints concerning the conditions of the author's detention and the lack of medical treatment.  The Committee considered that these claims, as well as the author's claims concerning the conditions of his pre-trial detention, are admissible and should be examined on the merits.

6.10     The Committee also considered that the claim that the author's representative at the preliminary hearing was absent for the hearing of two out of four prosecution witnesses may raise issues under article 14, paragraphs 1 and 3 (d), which should be examined on the merits.

Issues and proceedings before the Committee

7.1       The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided for in article 5, paragraph 1, of the Optional Protocol.  The Committee notes with concern that the State party has not provided any further information clarifying the matters raised by this communication since the decision on the admissibility of the communication.  The Committee recalls that it is implicit in article 4, paragraph 2, of the Optional Protocol, that a State party examine in good faith all the allegations brought against it, and that it provide the Committee with all the information at its disposal.  In the light of the failure of the State party to cooperate with the Committee on the matter before it, due weight must be given to the authors' allegations, to the extent that they have been substantiated.

7.2       As to the allegation of a violation of articles 7 and 10 of the Covenant, the Committee notes that counsel has provided specific and detailed allegations concerning inappropriate conditions of detention prior to his trial and since his conviction, and lack of medical treatment.  The State party has not responded to these allegations with specific responses but in its initial submission merely denies that the conditions constitute a violation of the Covenant and then goes on to say that it would investigate these allegations, including the allegation of the failure to provide medical treatment (para. 4.6).  The Committee notes that the State party has not informed the Committee of the outcome of its investigations.  In the absence of any explanation from the State party, the Committee considers that the author's conditions of detention and his lack of medical treatment 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 light of this finding in respect of article 10, a provision which deals with the situation of persons deprived of their liberty and encompasses the elements set out generally in article 7, it is not necessary to consider separately the claims arising under that article (para. 3.2).

7.3       With respect to counsel's allegation that the author's lawyer was absent for the hearing of two of the four witnesses during the preliminary hearing, the Committee decided in its admissibility decision that this allegation may raise issues under article 14, paragraph 1 and paragraph 3 (d).  The Committee recalls its prior jurisprudence that it is axiomatic that legal assistance be available at all stages of criminal proceedings, particularly in capital cases.  

It also recalls its decision in Communication No. 775/1997 (Brown v. Jamaica), adopted

on 23 March 1999, in which it decided that a magistrate should not proceed with the deposition of witnesses during a preliminary hearing without allowing the author an opportunity to ensure the presence of his lawyer.  In the present case, the Committee notes that it is not disputed that the author's lawyer was absent during the hearing of two of the witnesses nor does it appear that the magistrate adjourned the proceedings until her return.  Accordingly, the Committee finds that the facts before it disclose a violation of article 14, paragraph 3 (d), of the Covenant (para. 3.8).

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 as found by the Committee reveal a violation by Jamaica of articles 10, and 14, paragraph 3 (d) of the Covenant.

9.         Pursuant to article 2, paragraph 3 (a), of the Covenant, the Committee considers that the author is entitled to an appropriate remedy, including adequate compensation, an improvement in the present conditions of detention and due consideration of early release.

10.       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 to be issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

I.  Communication No. 721/1997, Boodoo v. Trinidad and Tobago

                           (Views adopted on 2 August 2002, seventy-fourth session)*

Submitted by:                                       Mr. Clement Boodoo

Alleged victim:                          The author

State party:                                           Trinidad and Tobago

Date of communication:             13 June 1994 (initial submission)

Decision on admissibility:                       5 July 1999

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

            Meeting on 2 April 2002,

            Having concluded its consideration of Communication No. 721/1996, submitted to the Human Rights Committee by Mr. Clement Boodoo 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, initial submission dated 13 June 1994, is Clement Boodoo, a citizen of Trinidad and Tobago, serving a 10-year prison sentence at the time of submission, at Carrera Convict Prison in Trinidad and Tobago.  Although the author does not invoke any specific provisions of the Covenant on Civil and Political Rights, the communication appears to raise issues under articles 7, 9, paragraph 3, 10, paragraph 1, 14, paragraph 3 (c), and 18, paragraph 1, of the Covenant.  The author is not represented by counsel.

The facts as submitted by the author

2.1       The author states that he has been detained since 21 April 1989.  On 24 January 1992, he was convicted and sentenced to 10 years' imprisonment for larceny.  He states that his earliest release date is 31 December 1998.

2.2       On 3 December 1990, while still in pre-trial detention, a map of the prison and a handmade weapon were found in the author's cell.  As punishment, the author was placed in "cellular confinement" in a special high security cellblock for "escapees" in Carrera Prison.  The author has remained in cellular confinement since.  Such confinement consists of being locked in his cell for 23 hours a day, where he sleeps on a 1-inch thick carpet.  He is allowed out only once a day for his airing and to bathe.  His airing takes place in an area where inmate urinal and faecal wastes are disposed of, while other inmates are allowed their airings in a much larger, cleaner facility where they are allowed to exercise, play tennis and football, and engage in other recreational activities.  His airing facility is damp, slippery, infested with worms and flies and faecal waste is often scattered on the ground.  If the author complains about the conditions of his airing facility, he is left in his cell.  In March 1991 his diet was restricted for 21 days.

2.3       As a result of his conditions of detention, the author is going blind.  The prison doctor recommended at least three hours of sunlight a day for him, but this recommendation is not being implemented.  While other inmates in the maximum security cell-block are allowed to take part in entertainment programmes and to worship at Christian or Muslim prayer services, the author has been denied these privileges. 

2.4       After his conviction, and on having his photograph taken, the photographer forced him to have his beard shaved off, despite the author's claim that his Muslim faith forbids him to do so.  Later that day, the author complained to the Inspector of Prisons, who gave the author permission to grow a beard again.

2.5       On 1 December 1992, the author was threatened by the warders, assaulted, and then returned to his cell.  On 8 December 1992, he learnt from the prison authorities that an inmate had told them that he was masterminding an escape from prison.

2.6       On 18 January 1993, the author was searched, his prayer clothes were taken from him and his beard was forcibly shaven off.  He was then assaulted by prison warders.  He received blows to the head, chest, groin and legs and his request for immediate medical attention was ignored.  Some weeks later, on complaining of continual pain, the medical officer gave him painkillers.  On 27 May 1993, the author complained in writing to the Inspector of Prisons, but no action was taken.

2.7       From time to time, the author is transferred to Port-of-Spain prison for brief periods of incarceration.  When at Port-of-Spain Prison, the author is left in a dimly-lit cell 24 hours a day and is not let out for recreation or airing.  He does not know the reason why he is shuttled between prisons.  Upon returning to Carrera Prison, the author is forced to strip naked, and pull back the foreskin on his penis.  He is forced to pull his buttocks apart and squat 3 to 4 times in front of the prison guards.  According to the author, no other prisoners are subjected to such humiliation.

2.8       The author has been assaulted by the warders on several occasions.  In addition, he has received threats from the warders in connection with his complaint to the United Nations, and correspondence has not always been delivered to him.  He further states that he has to request permission before writing to someone, and that on occasion he has been refused permission to write to the United Nations, the President, and his lawyer.

The complaint

3.1       The author claims that his rights have been violated by various aspects of his detention.  He claims that the conditions under which he is kept are inhuman and that his eyesight is getting worse as a result.

3.2       He claims that he is being denied his right to exercise his religion as he is forbidden from worshipping at Muslim prayer services, his prayer books were taken from him, and on two occasions his beard was shaven off.

3.3       The author claims that the method employed by the prison warders to search him, as described in paragraph 2.6 and 2.7 is humiliating and no other prisoners are subjected to the same treatment and that the assaults upon his person are unprovoked and inhuman.

3.4       Finally, he claims that he has found it very difficult to receive information from or to forward information to the United Nations and individuals outside the prison service, due to the threats received by the warders and the interference with his mail.

Decision on admissibility

4.1       At its sixty-sixth session, the Committee considered the admissibility of the communication.  It noted with concern the lack of cooperation from the State party, which had not submitted any observations on admissibility.

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

4.3       With respect to the exhaustion of domestic remedies, the Committee noted that the State party had not claimed that there are any domestic remedies yet to be exhausted by the author.

4.4       The Committee decided the following, "In the absence of observations from the State party, the Committee is not aware of any obstacles to the admissibility of the communication and considers that the communication may raise issues, in particular under articles 7, 10 and 18 of the Covenant, which should be examined on their merits."  Consequently, on 5 July 1999, the Committee declared the communication admissible.

Issues and proceedings before the Committee

5.1       Notwithstanding reminders dated 25 September 2000, and 11 October 2001, the State party has not submitted any observations or comments on the merits of the case.  The Committee regrets the absence of cooperation on the part of the State party and recalls that it is implicit in article 4, paragraph 2, of the Optional Protocol that a State party must furnish the Committee, in good faith and within the imparted deadlines, with all the information at its disposal.  In the absence of information from the State party, due weight must be given to the author's allegations, to the extent that they have been substantiated.

5.2       The Committee notes that at the time of submission, Trinidad and Tobago was a party to the Optional Protocol.  The withdrawal by the State party from the Optional Protocol on 27 March 2000, with effect as of 27 June 2000, does not affect the competence of the Committee to consider the merits of this communication.

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

6.2       The Committee notes that the author was held in detention for a period of two years and nine months prior to his trial and reaffirms its constant jurisprudence that all stages of judicial proceedings should take place without undue delay.  The Committee concludes that a period of 33 months between arrest and trial constituted undue delay, and cannot be deemed compatible with the provisions of article 9, paragraph 3, of the Covenant, in the absence of any explanation from the State party justifying the delay or explaining why the pre-trial investigations could not have been concluded earlier and why the author was detained throughout this period without trial.  The Committee therefore finds that there has been a violation of article 9, paragraph 3, of the Covenant.

6.3       The Committee finds that the delay in bringing the author to trial, in the absence of any explanation from the State party, entailed a violation of article 14, paragraph 3 (c) of the Covenant.

6.4       The Committee notes the author's complaint in paragraphs 2.2 and 2.6 above that he has been held in appalling and insalubrious conditions as a result of which his eyesight has deteriorated.  In the Committee's opinion, the conditions described therein are such as to 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, of the Covenant.

6.5       With respect to the physical assaults on the author's integrity, in particular the incident described in paragraph 2.6 above, the threats of violence against him, and the treatment he received on being searched by the warders (para. 2.7), the Committee decides that, in the absence of an explanation from the State party, such treatment amounts to a violation of article 7 of the Covenant.

 

6.6       As to the author's claim that he has been forbidden from wearing a beard and from worshipping at religious services, and that his prayer books were taken from him, the Committee reaffirms that the freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts and that the concept of worship extends to ritual and ceremonial acts giving expression to belief, as well as various practices integral to such acts.  In the absence of any explanation from the State party concerning the author's allegations in paragraphs 2.3-2.6, the Committee concludes that there has been a violation of article 18 of the Covenant.

6.7       As to the author's claims concerning attacks on his privacy and dignity, in the absence of any explanation from the State party, the Committee concludes that his rights under article 17 were violated.

7.         The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of articles 7, 9, paragraph 3, 10, paragraph 1, 14 (3) (c), 17 and 18, of the International Covenant on Civil and Political Rights.

8.         Pursuant to article 2, paragraph 3 (a), of the Covenant, the Committee considers that the author is entitled to an appropriate remedy including compensation for the treatment to which he has been subjected.  The State party is under an obligation to ensure that similar violations do not occur in the future.

9.         Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant 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.  The State party is requested to publish the Committee's Views.

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

Note

J.  Communication No. 728/1996, Sahadeo v. Guyana

                                     (Views adopted on 1 November 2001, seventy-third session)*

Submitted by:                                       Mrs. Margaret Paul  (Mr. Sahadeo's sister)

Alleged victim:                          Mr. Terrence Sahadeo

State party:                                           Republic of Guyana

Date of communication:             10 November 1996 (initial submission)

Decision on admissibility:                       29 October 1998

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

            Meeting on 1 November 2001,

            Having concluded its consideration of Communication No. 728/1996, submitted to the Human Rights Committee by Mrs. Margaret Paul (Mr. Sahadeo's sister), 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. Margaret Paul.  She submits the communication on behalf of her brother Terrence Sahadeo, a Guyanese citizen, awaiting execution in Georgetown prison in Guyana.  She claims that her brother is an alleged victim of human rights violations by Guyana.  Although she does not invoke any specific articles of the Covenant, the communication appears to raise issues under articles 7, 9, 10 and 14 of the Covenant.

The facts as submitted by the author

2.1       On 18 September 1985, Mr. Terrence Sahadeo, a friend called Mutez Ali, and the

latter's girlfriend, Shireen Khan, were arrested in Berbice, Guyana, for the murder of one

Roshanene Kassim committed earlier the same day.

2.2       The author states that Mr. Sahadeo and his co-accused were convicted and sentenced to death on 8 November 1989, four years and two months after their arrest.  Apparently, two prior trials, in June 1988 and February 1989, had been aborted.  On appeal, heard in 1992, a retrial was ordered.  On 26 May 1994, Mr. Sahadeo and his co-accused were again convicted and sentenced to death.  In 1996, their appeal was dismissed and the sentence confirmed.

2.3       From the incomplete notes of evidence of the retrial in 1994 submitted by the alleged victim, it appears that the case for the prosecution was that Terrence Sahadeo and Mutez Ali, according to a common plan including also Ms. Kahn, went to the house of the deceased in order to rob her.  The alleged victim and Mr. Ali tied her up and put a knife through her throat.  One witness for the prosecution testified at the trial that, in the morning of the incident, she had overheard that Ms. Kahn, in the presence of the accused, had enquired a little girl about who would be in the house of the deceased.  They were told that Roshanene Kassim would be in the house by herself.  Ms. Kahn then told the two other accused to go and see what they could get.  The witness testified that, through a window two houses away, she saw Ms. Kassim in the house and the two men enter and return about 15 minutes later.  She stated further that Mr. Sahadeo had blood on his hands that he washed away and that he handed over jewellery to Ms. Kahn.  During her cross-examination the witness stated that she was held for two days by the police and tried to contact a lawyer, since she felt she was held against her will, before she made her statement.

2.4       The only other evidence against Mr. Sahadeo was his confession and other statements given by the investigating police officers.  At the retrial in 1994, the voluntariness of the statement was challenged by the defence and examined in a voir dire.  Mr. Sahadeo claimed that during police investigation in 1985 he was beaten by three policemen and that one policeman hit him on the toe with a small hammer.  He then signed the statement.  The prison doctor testified that when Mr. Sahadeo was admitted, he complained that he had been beaten on the back.  When the doctor examined him, he found no injuries on his back, but discovered a toe injury, for which he gave him antibiotics.  After the voir dire, the judge ruled the statement admissible.

2.5       The investigating police officers stated in the retrial in 1994 that the alleged victim was arrested, since he was found outside the house next to Kassim's with scratches on the upper part of his body.  The officers denied having used force or threats when questioning the alleged victim and asserted that Mr. Sahadeo has received regular meals during his detention. 

2.6       In a statement from the dock, Mr. Sahadeo denied having anything to do with the murder and stated that he had been beaten in order to force him to sign the confession on the third day after his arrest.  It is submitted that after Mr. Sahadeo was arrested, he was taken to a doctor, who, after an examination of the alleged victim, issued a medical certificate to the police that he did not find any injuries on his body.  The author further submits that the alleged victim was deprived of any food until the day after he made the confession. 

The complaint

3.1       The author claims that her brother is innocent and that her brother and his friends were arrested only because they were strangers in the village, where they were spending a holiday.  At the police station, Mr. Sahadeo was allegedly beaten and hit on his toenails with a small hammer so that he signed a prepared statement out of fear of further ill-treatment. 

3.2       According to the author, there was no evidence to convict her brother.  The medical certificate and the police file were all missing when the trial against her brother started, and the only evidence was the confession and the testimony given by one witness.  The author claims that the witness first gave a statement to the police in which she did not inculpate her brother, but that she gave a second statement after having been in custody for two days without access to a lawyer.  The author further alleges that the judge was biased, because she asked questions of the witnesses to assist the Prosecution and made contemptuous remarks.  This is said to constitute miscarriage of justice.

3.3       Finally, it is claimed that the length of the procedure in the case has caused mental anguish.

Committee's decision on admissibility

4.         On 21 November 1996, the Committee requested the State party to provide information about the admissibility of the communication.  Under rule 86 of the Committee's rules of procedure, the State party was also requested not to carry out the death sentence against Mr. Sahadeo.

5.         By note of 30 June 1998, the State party informed the Committee that it had no objection to admissibility, as Mr. Sahadeo had exhausted all available domestic remedies.

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

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

6.3       With regard to the claim that there was not sufficient evidence against Mr. Sahadeo to convict him, the Committee referred to its prior jurisprudence and reiterated that it is generally not for the Committee, but for the courts of States parties, to review the evidence against an accused, unless it can be ascertained that the evaluation of the evidence was manifestly arbitrary or amounted to a denial of justice.  The material before the Committee and the author's allegations did not show that this was the case in Mr. Sahadeo's trial.  Accordingly, this part of the communication was inadmissible as the author has failed to forward a claim within the meaning of article 2 of the Optional Protocol.

6.4       With respect to the author's claim that the judge was biased, the Committee noted that the author has failed to provide any specific information in substantiation of this claim.  This part of the communication was, therefore, declared inadmissible under article 2 of the Optional Protocol, for not having been substantiated for purposes of admissibility.

6.5       The Committee considered that the author's remaining claims were admissible and should be considered on the merits as they may raise issues under articles 9, paragraph 3, and 14, paragraph 3 (c), in relation to the length of the proceedings, and under articles 7 and 14, in relation to the circumstances in which the confession was signed. 

7.         On 23 October 1998, the Human Rights Committee, therefore, decided that the communication is admissible insofar as it may raise issues under articles 7, 9, paragraph 3, and 14 of the Covenant.

Issues and proceedings before the Committee

8.1       On 27 November 1998, 22 September 2000 and 24 July 2001, the State party was requested to submit to the Committee information on the merits of the communication.  The Committee notes that this information has still not been received.

8.2       The Committee regrets that the State party has not provided any information with regard to the substance of the author's claims.  The Committee recalls that it is implicit in the Optional Protocol that States parties make available to the Committee all information at their disposal.  In the absence of a reply from the State party, due weight must be given to the author's allegations, to the extent that they are substantiated.

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       With regard to the length of the proceedings, the Committee notes that the alleged victim was arrested on 18 September 1985 and remained in detention until he was first convicted and sentenced to death on 8 November 1989, four years and two months after his arrest.  The Committee recalls that article 9, paragraph 3, of the Covenant entitles an arrested person to trial within a reasonable time or to release.  Paragraph 3 (c) of article 14 provides that the accused shall be tried without undue delay.  The Committee recalls that, if criminal charges are brought in cases of custody and pre-trial detention, the full protection of article 9, paragraph 3, as well as article 14, must be granted.  With respect to the alleged other delays in the criminal process, the Committee notes that Mr. Sahadeo's appeal was heard from the end of April to the beginning of May 1992 and, upon retrial, the alleged victim was again convicted and sentenced to death on 26 May 1994, two years and one month after the judgement of the Court of Appeal.  In 1996, the appeal against that decision was dismissed and the sentence confirmed.  The Committee finds that, in the absence of a satisfactory explanation by the State party or other justification discernible from the file, the detention of the author awaiting trial constitutes a violation of article 9, paragraph 3, of the Covenant and a further separate violation of article 14, paragraph 3 (c). 

 

9.3       With regard to the circumstances in which the confession was signed, the Committee notes that Mr. Sahadeo identified those he holds responsible; further details of his allegations appear from the notes of evidence.  The Committee recalls the duty of the State party to ensure the protection against torture and cruel, inhuman or degrading treatment as provided for in article 7 of the Covenant.  The Committee considers that it is important for the prevention of violations under article 7 that the law must exclude the admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.  The Committee observes that Mr. Sahadeo's allegations of torture had been dealt with during the first trial in 1989 and again in the retrial in 1994.  It appears from the notes of evidence of the retrial that Mr. Sahadeo had the opportunity to give evidence and that witnesses of his treatment during his detention by the police were cross-examined.  The Committee recalls that it is in general for the courts of States parties, and not for the Committee, to evaluate the facts in a particular case.  The information before the Committee and the arguments advanced by the author do not show that the Courts' evaluation of the facts were manifestly arbitrary or amounted to a denial of justice.  In the circumstances, the Committee finds that the facts before it do not sustain a finding of a violation of article 7 and article 14, paragraph 3 (g), of the Covenant in relation to the circumstances in which the confession was signed.

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 disclose a violation of articles 9, paragraph 3; and 14, paragraph 3 (c), of the Covenant.

11.       The Committee is of the view that Mr. Sahadeo is entitled, under article 2, paragraph 3 (a), to an effective remedy, in view of the prolonged pre-trial detention in violation of article 9, paragraph 3, and the delay in the subsequent trial, in violation of article 14, paragraph 3 (c), entailing a commutation of the sentence of death and compensation under article 9, paragraph 5, of the Covenant.  The State party is under an obligation to take appropriate measures to ensure that similar violations do not occur in the future.

12.       On becoming a State party to the Optional Protocol, Guyana recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not.  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 enforceable effective 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.  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 to be issued also in Arabic, Chinese and Russian as part of the present report.]

Note

APPENDIX

Individual opinion of Committee member Mr. Martin Scheinin

(partly dissenting)

            I share the view of the majority on two important points: (a) that the Covenant was violated in the course of the criminal case against Mr. Sahadeo, resulting in the imposition of capital punishment and (b) that, as a result, the obligation of the State party under article 2 (3) of the Covenant to afford an effective remedy must entail that the victim is allowed to preserve his life.  As prescribed in article 6 (2) of the Covenant, capital punishment may never be imposed through a procedure that entails a violation of the Covenant.

            Where I dissent is the majority's approach to what conclusions should be drawn from how the confession statement was handled in the course of the judicial proceedings.  Before the Committee Mr. Sahadeo, who is on death row in Georgetown prison, was represented by his sister, a lay person.  As the State party has not provided the Committee with any information whatsoever, except its blanket consent to the admissibility of all aspects of the communication,

I take the approach that the incomplete nature of the file cannot be held against Mr. Sahadeo.

            It is generally for the courts of States parties and not for the Committee to review the evidence against an accused.  However, in the present case it appears from the incomplete materials submitted to the Committee that when presenting the evidence related to the credibility of Mr. Sahadeo's testimony that he signed the confession statement under ill-treatment, the presiding judge used language that was prejudicial to the defendant.  For instance, he referred to Mr. Sahadeo's colour of skin as basis for an inference that ill-treatment would have left marks that would have been visible in the medical inspection that took place afterwards, in addition to the bruise on the toe that was recorded.  As the court, consequently, did not address the issue of possible coercion and ill-treatment in a proper way in a case that led to the imposition of capital punishment, I find that there has been a violation of articles 7 and 14 of the Covenant. 

                                                                        (Signed)  Martin Scheinin

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

Individual opinion of Committee member Mr. Hipólito Solari Yrigoyen

(dissenting)

            I disagree with the Committee's opinion on the following grounds:

            The author alleges that the police extracted his confession by means of beatings and ill‑treatment, including a hammer blow to one toe.  The prison doctor confirms that Mr. Sahadeo complained of being beaten on the back and that he had an injury to the foot.  He also states that he therefore prescribed antibiotics.  Later, in the dock, the author repeated his allegations that he had been beaten in order to make him sign a confession.  This confession was the principal piece of evidence produced by the Public Prosecutor, and was used to justify the death sentence.

            In its General Comment No. 20, the Committee finds that, for the discouragement of violations under article 7, it is important for the law to prohibit the admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.  The State party does not contest the alleged victim's claim to have been beaten, and the court did not consider his allegations of torture until four years had passed.  As the Committee has stated on other occasions, an absence of comment by the State party is tantamount to a lack of cooperation insofar as the State party has failed to comply with its obligation under article 4, paragraph 2, of the Optional Protocol, to submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by the State.

            The Committee is of the view that the facts before it disclose a violation by the State party of article 7 of the Covenant, and that the use of the contested confession in court as grounds for a conviction for murder also constitutes a violation of articles 14, paragraph 3 (g), and 6, paragraph 2, of the Covenant.  In accordance with article 2, paragraph 3 (a), of the Covenant, the author has the right to an effective remedy, which entails commutation of the death sentence.  The State party is also under an obligation to take steps to prevent similar violations from occurring in the future.

                                                                        (Signed)  Hipólito Solari Yrigoyen

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

K.  Communication No. 747/1997, Des Fours v. The Czech Republic

                          (Views adopted on 30 October 2001, seventy-third session)*

Submitted by:                                       Dr. Karel Des Fours Walderode (deceased in

                                                            February 2000) and his surviving spouse

                                                            Dr. Johanna Kammerlander (counsel)

Alleged victims:                         The author and his surviving spouse

State party:                                           The Czech Republic

Date of communication:             21 November 1996

Decision on admissibility:                       19 March 1999

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

            Meeting on 30 October 2001,

            Having concluded its consideration of Communication No. 747/1997, submitted to the Human Rights Committee by the late Dr. Karel Des Fours Walderode and Dr. Johanna Kammerlander 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 by the State party,

            Adopts the following:

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

1.         The original author of the communication was Dr. Karel Des Fours Walderode, a citizen of the Czech Republic and Austria, residing in Prague, Czech Republic.  He was represented by his spouse, Dr. Johanna Kammerlander, as counsel.  He claimed to be a victim of violations of article 14, paragraph 1, and article 26 of the International Covenant on Civil and Political Rights

by the Czech Republic.  The Covenant was ratified by Czechoslovakia in December 1975, the Optional Protocol in March 1991.  The author passed away on 6 February 2000, and his surviving spouse maintains the communication before the Committee.

The facts as submitted

2.1       Dr. Des Fours Walderode was born a citizen of the Austrian-Hungarian empire on 4 May 1904 in Vienna, of French and German descent.  His family had been established in Bohemia since the seventeenth century.  At the end of the First World War in 1918, he was a resident of Bohemia, a kingdom in the former empire, and became a citizen of the newly created Czechoslovak State.  In 1939, because of his German mother tongue, he automatically became a German citizen by virtue of Hitler's decree of 16 March 1939, establishing the Protectorate of Bohemia and Moravia.  On 5 March 1941, the author's father died and he inherited the

Hruby Rohozec estate.

2.2       At the end of the Second World War, on 6 August 1945, his estate was confiscated under Benes Decree 12/1945, pursuant to which the landed properties of German and Magyar private persons were confiscated without any compensation.  However, on account of his proven loyalty to Czechoslovakia during the period of Nazi occupation, he retained his Czechoslovak citizenship, pursuant to paragraph 2 of Constitutional Decree 33/1945.  Subsequently, after a Communist government came to power in 1948, he was forced to leave Czechoslovakia in 1949 for political and economic reasons.  In 1991, after the "velvet revolution" of 1989, he again took up permanent residence in Prague.  On 16 April 1991 the Czech Ministry of Interior informed him that he was still a Czech citizen.  Nevertheless, Czech citizenship was again conferred on him by the Ministry on 20 August 1992, apparently after a document was found showing that he had lost his citizenship in 1949, when he left the country.

2.3       On 15 April 1992, Law 243/1992 came into force.  The law provides for restitution of agricultural and forest property confiscated under Decree 12/1945.  To be eligible for restitution, a claimant had to have Czech citizenship under Decree 33/1945 (or under Law 245/1948, 194/1949 or 34/1953), permanent residence in the Czech Republic, having been loyal to the Czechoslovak Republic during the period of German occupation, and to have Czech citizenship at the time of submitting a claim for restitution.  The author filed a claim for restitution of the Hruby Rohozec estate within the prescribed time limit and on 24 November 1992 concluded a restitution contract with the then owners, which was approved by the Land Office on 10 March 1993 (PU-R 806/93).  The appeal by the town of Turnov was rejected by the Central Land Office by decision 1391/93‑50 of 30 July 1993.  Consequently, on 29 September 1993 the author took possession of his lands.

2.4       The author alleges State interference with the judiciary and consistent pressure on administrative authorities and cites in substantiation from a letter dated 29 April 1993 by the then Czech Prime Minister Vaclav Klaus, addressed to party authorities in Semily and to the relevant Ministries, enclosing a legal opinion according to which the restitution of property confiscated before 25 February 1948 was "legal", but nevertheless "unacceptable".  The author states that this political statement was subsequently used in court proceedings.  The author further states

that, because of increasing political pressure at the end of 1993 the Ministry of Interior reopened the issue of his citizenship.  Furthermore, the former owners of the land were persuaded to withdraw their consent to the restitution to which they had previously agreed.

2.5       On 22 December 1994 the Public Prosecutor's Office in the Semily District filed an application with the District Court under paragraph 42 of Law 283/1993 to declare the Land Office's decision of 10 March 1993 null and void.  On 29 December 1994, the District Court rejected this application.  On appeal, the matter was referred back to the first instance.

2.6       On 7 August 1995, a "citizens' initiative" petitioned revision of the Semily Land Office's decision of 10 March 1993.  On 17 October 1995, the Central Land Office examined the legality of the decision and rejected the request for revision.  Nevertheless, on 2 November 1995 the author was informed by the Central Land Office that it would, after all, begin to revise the decision.  On 23 November 1995, the Minister of Agriculture annulled the Semily Land Office decision of 10 March 1993, purportedly because of doubts as to whether the author fulfilled the requirement of permanent residence, and referred the matter back.  On 22 January 1996, the author applied to the High Court in Prague against the Minister's decision.

2.7       On 9 February 1996, Law 243/1992 was amended.  The condition of permanent residence was removed (following the judgement of the Constitutional Court of 12 December 1995, holding the residence requirement to be unconstitutional), but a new condition was added, of uninterrupted Czechoslovak/Czech citizenship from the end of the war until 1 January 1990.  The author claims that this law specifically targeted him and submits evidence of the use of the term "Lex Walderode" by the Czech media and public authorities.  On 3 March 1996 the Semily Land Office applied the amended Law to his case to invalidate the restitution agreement of 24 November 1992, since Dr. Des Fours did not fulfil the new eligibility requirement of continuous citizenship.  On 4 April 1996, the author lodged an appeal with the Prague City Court against the Land Office's decision.

2.8       As regards the exhaustion of domestic remedies, the late author contended that the proceedings were being deliberately drawn out because of his age and, moreover, that the negative outcome was predictable.  He therefore requested the Committee to consider his communication admissible, because of the delay in the proceedings and the unlikelihood of the effectiveness of domestic remedies.

The complaint

3.1       The late author and his surviving spouse claim that the restitution of the property in question was annulled for political and economic reasons and the legislation was amended to exclude him from the possibility of obtaining redress for the confiscation of his property.  It is claimed that this constitutes a violation of article 26 of the Covenant, as well as of article 14, paragraph 1, because of political interference with the legal process (such as the Minister's decision of 23 November 1995).  In this context, the author also refers to the long delays in the hearing of his case.

3.2       Further, he claims that the requirement of continuous citizenship for the restitution of property is in violation of article 26 of the Covenant and refers to the Committee's jurisprudence on this point.  The author also claims that the restitution conditions applying to him are discriminatory in comparison with those applying to post-1948 confiscations.

The State party's observations

4.1       By submission of 13 June 1997, the State party noted that the author appealed to the Prague City Court from the decision of the District Land Office in Semily of 8 March 1996.  As of June 1997, the proceedings were not completed, since the Land Office could not send the files concerning the case to the City Court, since these were still with the High Court.

4.2       Considering that the author commenced proceedings in the High Court in January 1996 against the decision of the Minister of Agriculture to annul the restitution, and that by December 1996, the preparatory stage of obtaining all necessary documentary evidence was completed, the State party argued that no undue prolongation had occurred.

4.3       The State party indicated that remedies exist when the author feels that the proceedings are being intentionally delayed.  The author could have complained to the Chairman of the court, from where a possibility of review with the Ministry of Justice exists.  Another remedy available to the author is a constitutional complaint, which may be accepted even if he has not exhausted domestic remedies if the application of remedies is unduly delayed and he has suffered serious harm as a result.

4.4       According to the State party, the rights invoked by the author are rights that can be asserted through a constitutional complaint, since international treaties regarding human rights are directly applicable and superior to law.

4.5       The State party rejects the author's suggestion that any attempts to assert his rights through the courts is useless because of the political interference with the judicial process.  As regards the Prime Minister's letter concerning the interpretation of Law No. 243/1992, the State party denies that this letter was a political instruction for the courts.  It notes that the letter was not addressed to a court and that it was merely a reply to an information request from the chairman of the local branch of his party and the contents were general in nature.  If the author nevertheless fears that the letter may affect the impartiality of the court, he may ask the Constitutional Court to order that the letter should be removed from the court file on the ground of interference by a public authority with the exercise of his right to a fair hearing.

4.6       The State party submits that difference in treatment between the Restitution Law No. 243/1992 and the laws applying to the post-1948 confiscations does not constitute discrimination, as the two sets of laws serve different purposes and cannot be compared.

4.7       The State party concluded that the author has failed to exhaust domestic remedies and that the communication is thus inadmissible under article 5, paragraph 2 (b), of the Optional Protocol.  The State party also submits that since the author's allegations are not substantiated and/or do not disclose an appearance of a violation of any of the rights set forth in the Covenant, the communication is inadmissible ratione materiae.

The author's comments

5.1       In his comments, the author refers to his original communication and submits that the State party has basically failed to contradict any of his claims.

5.2       He emphasizes that he retained his Czech citizenship under Benes Decree No. 33/1945, and that thus all the requirements of the original Law 243/1992 had been fulfilled when the Land Office approved the return of his property.  The author notes that the State party remains silent about amendment 30/1996, introducing a further condition of continuous Czech citizenship, which did not apply when his restitution contract was approved in 1993.  According to the author, this amendment made it possible to expropriate him again. 

5.3       According to the author, the application of further domestic remedies would be futile because of the political interests in his case.  He moreover points to the delays in the handling of the case, whether intentional or not.

5.4       The author dismisses the State party's attempt to explain away the Minister's letter as a simple expression of opinion and maintains that the opinion of the Prime Minister was equated with an interpretation of the law, and submits that the political dimension of his restitution procedure is evident from the interaction of several components.

5.5       With regard to the petition received by the Ministry of Agriculture from local residents, the author points out that the decision of the Semily Land Office was handed down on 10 March 1993 and the petition against it was submitted on 7 August 1995, two years and five months later. The Minister of Agriculture's order quashing the Semily Land Office's earlier decision followed on 23 November 1995, three and half months after the petition.  It becomes evident that the 30-day time limit stipulated in Law 85/1990 concerning the right of petition was not observed.

5.6       In a further submission, the author states that his complaint against the Minister's decision of 23 November 1995 was rejected by the High Court on 25 August 1997.  The author claims that the reasons given by the court again illustrate the political nature of the process.

5.7       On 25 March 1998, the Prague City Court rejected the author's appeal against the refusal of the restitution of his property by the Land Office in 1996, since he no longer fulfilled the requirements added to the law in amendment 30/1996.  On 24 July 1998, the author filed a complaint against this decision with the Czech Constitutional Court.

5.8       The author further submits that even if the Constitutional Court would find in his favour, the decision would again be referred to the first instance (the Land Office), thus entailing considerable further delay and opening the door for more political intervention.  According to the author, the whole procedure could easily take another five years.  He considers this to be unjustifiably long, also in view of his age.

5.9       In this context, the author recalls the salient aspects of his case.  The restitution contract which he concluded was approved by the Land Office on 10 March 1993, and the appeal against the approval was rejected by the Central Land Office on 30 July 1993, after which the restitution was effected in accordance with Law 243/1992.  Only on 25 November 1995, that is more than two years after he had taken possession of his lands, did the Minister of Agriculture quash the Land Office's decision, on the ground that the Office had not sufficiently verified whether the author complied with the requirement of permanent residence.  It appears from the Court judgements in the case, that at the time of the Minister's decision, it was expected that the Constitutional Court would declare this residence requirement unconstitutional (it subsequently did so, on 12 December 1995, less than a month after the Minister's decision).  After a requirement of continued citizenship was added to Law 243/1992 by law 30/1996 of 9 February 1996, the Land Office then reviewed the legality of the restitution agreement in the author's case, and applying the new law declared the agreement invalid on 3 March 1996.  The two court proceedings which the author then initiated, were delayed, as acknowledged by the State party, in one case because the Ministry was not in a position to furnish the papers needed by the Court, and in the other because of a backlog at the court in handling cases.

Admissibility considerations

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

6.2       During its sixty-fifth session in March 1999, the Committee considered the admissibility of the communication.  It noted the State party's objection to the admissibility of the communication on the ground that the author had failed to exhaust all domestic remedies available to him.  The Committee noted, however, that in August 1997, the High Court rejected the author's complaint against the Minister's decision, and on 25 March 1998, the City Court in Prague rejected his appeal against the Land Office's decision of 1996.  The text of these decisions shows that no further appeal is possible.  The effect is to preclude any further attempt by the author to validate and seek approval of the restitution agreement of 1992.

6.3       The author has since filed a constitutional complaint against the Prague City Court decision that the requirement of continued citizenship is legitimate.  The Committee noted that in the instant case, the Constitutional Court had already examined the constitutionality of Law 243/1992.  In the opinion of the Committee and having regard to the history of this case, a constitutional motion in the author's case would not offer him a reasonable chance of obtaining effective redress and therefore would not constitute an effective remedy which the author would have to exhaust for purposes of article 5, paragraph 2 (b), of the Optional Protocol.

6.4       In this context, the Committee also took note of the author's arguments that even if he were to win a constitutional appeal, the case would then be referred back, and the proceedings could take another five years to become finalized.  In the circumstances, taking into account the delays which had already been incurred in the proceedings and which were attributable to the State party, the delays which would likely occur in future and the author's advanced age, the Committee also found that the application of domestic remedies had been unreasonably prolonged.

7.         On 19 March 1999, the Committee held that the communication was admissible insofar as it might raise issues under articles 14, paragraph 1, and 26 of the Covenant.

Consideration of the merits

8.1       Pursuant to article 5, paragraph 1, of the Optional Protocol, the Committee proceeds to an examination of the merits, in the light of the information submitted by the parties.  It notes that it has received sufficient information from the late author and his surviving spouse, and that no further information on the merits has been received from the State party subsequent to the transmittal of the Committee's admissibility decision, notwithstanding two reminders.  The Committee recalls that a State party has an obligation under article 4, paragraph 2, of the Optional Protocol to cooperate with the Committee and to submit written explanations or statements clarifying the matter and the remedy, if any, that may have been granted.

8.2       The Committee has noted the author's claims that the State party has violated article 14, paragraph 1, of the Covenant because of alleged interference by the executive and legislative branches of government in the judicial process, in particular through the letter of the Prime Minister dated 29 April 1993, and because of the adoption of retroactive legislation aimed at depriving the author of rights already acquired by virtue of prior Czech legislation and decisions of the Semily Land Office.  With regard to the adoption of retroactive legislation, the Committee observes that, whereas an allegation of arbitrariness and a consequent violation of article 26 is made in this respect, it is not clear how the enactment of law 30/1996 raises an issue under article 14, paragraph 1.  As to the Prime Minister's letter, the Committee notes that it was part of the administrative file in respect of the author's property which was produced in Court, and that there is no indication whether and how this letter was actually used in the court proceedings.  In the absence of any further information, the Committee takes the view that the mere existence of the letter in the case file is not sufficient to sustain a finding of a violation of article 14, paragraph 1, of the Covenant.

8.3       With regard to the author's allegation of a violation of article 26 of the Covenant, the Committee begins by noting that Law No. 243/1992 already contained a requirement of citizenship as one of the conditions for restitution of property and that the amending Law No. 30/1996 retroactively added a more stringent requirement of continued citizenship.  The Committee notes further that the amending Law disqualified the author and any others in this situation, who might otherwise have qualified for restitution.  This raises an issue of arbitrariness and, consequently, of a breach of the right to equality before the law, equal protection of the law and non-discrimination under article 26 of the Covenant.

8.4       The Committee recalls its Views in cases No. 516/1993 (Simunek et al.), 586/1994 (Joseph Adam) and 857/1999 (Blazek et al.) that a requirement in the law for citizenship as a necessary condition for restitution of property previously confiscated by the authorities makes an arbitrary, and, consequently a discriminatory distinction between individuals who are equally victims of prior State confiscations, and constitutes a violation of article 26 of the Covenant.  This violation is further exacerbated by the retroactive operation of the impugned Law.

9.1       The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, is of the view that article 26, in conjunction with article 2 of the Covenant, has been violated by the State party.

9.2       In accordance with article 2, paragraph 3 (a) of the Covenant, the State party is under an obligation to provide the late author's surviving spouse, Dr. Johanna Kammerlander, with an effective remedy, entailing in this case prompt restitution of the property in question or compensation therefore, and, in addition, appropriate compensation in respect of the fact that the author and his surviving spouse have been deprived of the enjoyment of their property since its restitution was revoked in 1995.  The State party should review its legislation and administrative practices to ensure that all persons enjoy both equality before the law as well as the equal protection of the law.

9.3       The Committee recalls that the Czech Republic, by becoming a State party to the Optional Protocol, 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 and enforceable remedy in case a violation has been established.  Furthermore, the Committee urges the State party to put in place procedures to deal with Views under the Optional Protocol.

9.4       In this connection, the Committee wishes to receive from the State party, within 90 days following the transmittal of these Views to the State party, information about the measures taken to give effect to these 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 to be issued also in Arabic, Chinese and Russian as part of the present report.]

Note

L.  Communication No. 763/1997, Lantsova v. Russia

                                      (Views adopted on 26 March 2002, seventy-fourth session)*

Submitted by:                           Ms. Yekaterina Pavlovna Lantsova (represented by

                                                Ms. Karina Moskalenko, International Protection Center)

Alleged victim:              The author's son Mr. Vladimir Albertovich Lantsov,

                                                deceased

State party:                               The Russian Federation

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

            Meeting on 26 March 2002,

            Having concluded its consideration of Communication No. 763/1997, submitted to the Human Rights Committee by Ms. Yekaterina Pavlovna Lantsova, mother of Mr. Vladimir Albertovich Lantsov, deceased, under the Optional Protocol to the International Covenant on Civil and Political Rights,

            Adopts the following:

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

1.         The author of the communication is Yekaterina Pavlovna Lantsova, mother of Vladimir Albertovich Lantsov, deceased.  Mrs. Lantsova claims that her son, who was born on 27 June 1969, was a victim of violations by Russia of article 6, paragraph 1, article 7 and article 10, paragraph 1 of the International Covenant on Civil and Political Rights.  She is represented by counsel.

The facts as presented by the author

2.1       In August 1994, Mr. Lantsov, during an argument, inflicted injuries on another

person, as a consequence of which both criminal and civil charges were pressed against him.  On 1 March 1995, he made full reparation to the plaintiff for damages determined in the civil case.  Awaiting his criminal trial, set for 13 April 1995, Mr. Lantsov was initially released. 

However, on 5 March 1995, after failing to appear for a meeting with the investigator, he was placed in pre‑trial detention at Moscow's pre-trial detention centre, "Matrosskaya Tishina", where he died on 6 April 1995, at the age of 25.

2.2       Mrs. Lantsova submits that her son was healthy when he first entered Matrosskaya Tishina,  but that he fell ill due to the very poor conditions at the prison.  She complains that her son was given no medical treatment despite repeated requests.  Finally, she complains that the Russian Federation has failed to bring those responsible to justice.

2.3       The author submits that the conditions at Moscow's pre-trial detention centres are inhuman, in particular because of extreme overcrowding, poor ventilation, inadequate food and appalling hygiene.  She refers to the 1994 report of the Special Rapporteur against torture to the Commission on Human Rights.  Regarding access to health care, the report states that overcrowding exacerbates the inability of the staff to provide food and health care, and notes the high incidence of disease in the centres.  Matrosskaya Tishina is held out for particular criticism in the report:  "The conditions are cruel, inhuman and degrading; they are torturous."

2.4       According to Mrs. Lantsova, based on statements from other detainees in the cell with her son, shortly after he was brought to Matrosskaya Tishina his physical and mental state began to deteriorate.  He began to lose weight and developed a temperature.  He was coughing and gasping for breath.  Several days before his death he stopped eating and drank only cold water.  He became delirious at some point and eventually lost consciousness.

2.5       It appears that other detainees requested medical assistance for Mr. Lantsov some time after the first week of his detention, that a medical doctor attended to him once or twice in the cell and that he was given aspirin for his temperature.  However, between 3 and 6 April, during what was a rapid and obvious deterioration in his condition, he received no medical attention, despite repeated requests for assistance by the other detainees.  On 6 April, after the other detainees cried out for assistance, medical personnel arrived with a stretcher.  Mr. Lantsov died later that day in the prison clinic.  His death certificate identifies the cause of death as "acute cardiac/circulatory insufficiency, intoxication, cachexia of unknown etiology."

2.6       With regard to the exhaustion of domestic remedies the author states that decision to open a criminal investigation into Mr. Lantsov's death is within the competence of the chief of the pre-trial detention centre.  A final decision on the matter lies with the procurator's office.  Mrs. Lantsov has made timely and repeated applications for a criminal investigation to be opened, but these were consistently denied.  She therefore concludes that she has exhausted domestic remedies.

2.7       The procurator's decisions refusing to open a criminal investigation are based on the conclusion that the death in this case resulted from a combination of pneumonia and the stressful conditions of confinement, and that under these circumstances it would be impossible to find the detention centre personnel liable.

The complaint

3.         Mrs. Lantsova claims that the Russian Federation violated her son's fundamental human rights by causing his death as a result of confinement under conditions unfit for human survival, and that it also failed in its obligation to provide any meaningful legal protection against such violations.  In her opinion, this constitutes violations of articles 6, paragraph 1, article 7 and article 10, paragraph 1 of the Covenant.

Decision on admissibility

4.         By a note dated 23 March 1998, the State party informed the Committee that it did not object to the admissibility of the communication.

5.1       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 it is admissible under the Optional Protocol to the Covenant.

5.2       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.

5.3       The Committee therefore decided, on 7 July 1998 at its sixty‑third session, that the communication was admissible insofar as it may raise issues under article 6, paragraph 1, article 7 and article 10, paragraph 1 of the Covenant.

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

6.1       In its observations on the merits of the communication, dated 28 December 1998, the State party states that Mr. Lantsov was arrested on 5 March 1995 and that on 7 March 1995 he was moved to a pre-trial detention centre and placed in a communal cell.  On being admitted to the detention centre he underwent medical examinations, in accordance with the established procedure.  At that time he expressed no complaints about his health, no physical anomaly

was noted and a fluoroscopic examination of the chest showed no pathological condition.  On 6 April 1995, at about 9 a.m., Mr. Lantsov's fellow detainees informed the guards that he was not feeling well.  After an examination by the duty doctor, Mr. Lantsov was urgently admitted to the hospital attached to the detention centre, but despite these measures he died at 9.15 a.m.  A commission composed of doctors from the preventive medicine institutions attached to the Ministry of the Interior and the Moscow Department of Health carried out an investigation into Mr. Lantsov's death.  Its conclusions were that the cause of death had been bilateral ulcerative pneumococcic pneumonia, bilateral pleurisy and focal atelectasis leading to respiratory‑cardiovascular failure.  The general inflammation of the lungs and the pleural cavity, the patient's failure to seek medical assistance and conditions in the prison had, in the State party's opinion, contributed to the rapid fatal outcome.

6.2       The State party admits that at the time when Mr. Lantsov was detained, the detention centres (sledstvenii izoliator) held more than twice as many detainees as their design capacity, with the result that conditions of detention were not consistent with the regulations in force.  The commission of inquiry concluded that there had been no medical error.  The diagnosis of the causes of death had been confirmed in the post‑mortem report prepared on 13 May 1995.

6.3       In the absence of an offence, the Office of the Interregional Procurator for Moscow‑Preobrajenskaya, the public prosecution department, did not initiate criminal proceedings. This decision was subsequently confirmed by the Moscow Procurator's Office.  During the review of the case it was established that the family had not been notified of the death promptly and that the officer concerned had been held accountable.

6.4       The State party admits that, generally speaking, conditions in detention centres constitute a serious problem for Russia and that there is no prospect of an immediate solution.  A set of measures to reform the prison system has been established, with a view to improving conditions in the detention centres and bringing them into line with international standards for the treatment of prisoners.  The State party cites two presidential edicts and a government decree as examples of recent steps towards the transfer of responsibility for prison establishments from the Ministry of the Interior to the Ministry of Justice.  An increase in the number of places in detention centres and prisons was under way, but was being impeded by financial difficulties.

Author's comments on the State party's observations concerning the merits of the case

7.1       In her comments dated 21 December 2000, the author notes that the State party admits the most important facts of the case.  Mr. Lantsov had entered the detention centre in perfect health, but conditions there caused his death.

7.2       She draws attention to the fact that he had only been given 15 minutes' medical attention before his death. Although the doctors had been informed some days before his death of his deteriorating state of health and the risk of death, they took no action.  According to the author, such is common practice in that prison.  With regard to the State party's failure to properly investigate, the author recalls the testimony of various prisoners on this point and states that the prosecution department could have collected incriminatory statements if it had conducted a genuine inquiry by hearing testimony from Mr. Lantsov's fellow prisoners.  For some reason, the prosecution department did not make a proper inquiry.

7.3       The author also rejects the State party's observation that the detention centres contained only twice as many prisoners as they were designed for.  The testimony showed that overcrowding in the centres was five times the indicated level and that detainees had to sleep in turn because of lack of beds. 

7.4       As regards the late notification of death to the family, the author states that in fact the authorities had never tried to notify anyone.  Without Mr. Lantsov's lawyer, who had tried to visit him, no one could be certain whether or when his mother would have learnt the truth about his death.

7.5       Lastly, the author considers that the State party is trying to evade its responsibility by listing various future decrees which are intended to improve the situation in prisons.  This, in her view, constitutes nothing less than acceptance by the State party of the inhuman standards in prisons.  In any event, these decrees were adopted two years after her son's death; current or future acts can change nothing, or cannot in any way change the fact that the Russian Federation violated the human rights of a 25-year-old man in good health and that those violations cost him his life.

Issues and proceedings before the Committee

8.1       The Human Rights Committee has considered this communication, taking account of all the written information submitted to it by the parties, in accordance with the provisions of article 5, paragraph 1, of the Optional Protocol.

8.2       The Committee must determine whether the State party violated articles 6, paragraph 1, article 7 and 10, paragraph 1 of the Covenant in connection with the death of the author's son.

9.1       Regarding the conditions of detention, the Committee notes that the State party concedes that prison conditions were bad and that detention centres at the time of the events held twice the intended number of inmates.  The Committee also notes the specific information received from the author, in particular that the prison population was, in fact, five times the allowed capacity and that the conditions in Matrosskaya Tishina prison were inhuman, because of poor ventilation, inadequate food and hygiene.  The Committee finds that holding the author's son in the conditions prevailing at this prison during that time entailed a violation of his rights under article 10, paragraph 1 of the Covenant.

9.2       Concerning the death of Mr. Lantsov, the Committee notes the author's allegations, on the strength of testimony by several fellow detainees, that after the deterioration of the health of the author's son, he received medical care only during the last few minutes of his life, that the prison authorities had refused such care during the preceding days and that this situation caused his death.  It also takes note of the information provided by the State party, namely that several inquiries were carried out into the causes of the death, i.e. acute pneumonia leading to cardiac insufficiency, and that Mr. Lantsov had not requested medical assistance.  The Committee affirms that it is incumbent on States to ensure the right of life of detainees, and not incumbent on the latter to request protection.  The stated intention of the State party to improve conditions has no impact in the assessment of this case.  The Committee notes that the State party has not refuted the causal link between the conditions of the detention of Mr. Lantsov and the fatal deterioration of his state of health.  Further, even if the Committee starts from the assertion of the State party that neither Mr. Lantsov himself nor his co-detainees had requested medical help in time, the essential fact remains that the State party by arresting and detaining individuals takes the responsibility to care for their life.  It is up to the State party by organizing its detention facilities to know about the state of health of the detainees as far as may be reasonably expected. Lack of financial means cannot reduce this responsibility.  The Committee considers that a properly functioning medical service within the detention centre could and should have known

about the dangerous change in the state of health of Mr. Lantsov.  It considers that the State party failed to take appropriate measures to protect Mr. Lantsov's life during the period he spent in the detention centre.  Consequently, the Human Rights Committee concludes that, in this case, there has been a violation of paragraph 1 of article 6 of the Covenant.

9.3       In the light of the above findings of violations of article 6 and article 10 of the Covenant, the Committee does not consider it necessary to pronounce itself on a violation of article 7.

10.       The Human Rights Committee, acting under article 5 (4) of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the State party failed in its obligation to ensure the protection of Mr. Lantsov, who lost his life as a direct result of the existing prison conditions.  The Committee finds that articles 6, paragraph 1, and article 10, paragraph 1 of the Covenant were violated. 

11.       The Committee is of the view that Mrs. Lantsova is entitled, under article 2, paragraph 3 (a) of the Covenant, to an effective remedy.  The State party should take effective measures:  (a) to grant appropriate compensation (b) to order an official inquiry into the death of Mr. Lantsov; and (c) to ensure that similar violations do not recur in the future, especially by taking immediate steps to ensure that conditions of detention are compatible with the State party's obligation under articles 6 and 10 of the Covenant.

12.       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 English text being the original version.  Subsequently to be issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

M.  Communication No. 765/1997, Fábryová v. The Czech Republic

(Views adopted on 30 October 2001, seventy-third session)*

Submitted by:                                       Ms. Eliska Fábryová

Alleged victim:                          The author

           

State party:                                           The Czech Republic

           

Date of communication:             28 May 1997 (initial submission)

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

            Meeting on 30 October 2001,

            Having concluded its consideration of Communication No. 765/1997, submitted to the Human Rights Committee by Eliska Fábryová 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 Eliska Fábryová, née Fischmann, a Czech citizen, born on 6 May 1916.  The author claims to be a victim of discrimination by the Czech Republic.  The Optional Protocol entered into force for the Czech Republic on 12 June 1991.

The facts as submitted by the author

2.1       The author's father Richard Fischmann owned an estate in Puklice in the district of Jihlava, Czechoslovakia.  In 1930, at a national census, he and his family registered as Jews.  In 1939, after the occupation by the Nazis, the estate was "aryanised"1 and a German sequestrator was appointed.  Richard Fischmann died in 1942 in Auschwitz.  The author is not represented by counsel.

2.2       The rest of the family was interned in concentration camps and only the author and her brother Viteslav returned.  In 1945, the estate of Richard Fischmann was confiscated under Benes decree 12/1945 because the district committee decided that he was German as well as a traitor to the Czech Republic,2 the assumption that he was German being based on the assertion that he had lived "in a German way". 

2.3       The author's appeal against the confiscation was dismissed.  The decision of the district committee was upheld by a judgement of the highest administrative court in Bratislava on 3 December 1951.

2.4       After the end of communist rule in Czechoslovakia, the author lodged a complaint to the General Procurator, on 18 December 1990, for denial of justice with regard to her claim for restitution.  Her complaint was dismissed on 21 August 1991 for being out of time, having been lodged more than five years after the confiscation.  The author states that under Communist rule it was not possible to lodge a complaint within the time limit of five years as prescribed by law.

2.5       The author states that on 17 June 1992 she applied for restitution according to the law No. 243/1992.3  Her application was dismissed on 14 October 1994 by the Land Office of Jihlava.

The complaint

3.         The author claims to be a victim of discrimination as under the law No. 243/1992 she is not entitled to restitution of her father's property. 

State party's observations

4.1       By submission of 20 October 1997, the State party stated that the author's

application for restitution of her father's property was dismissed by the Jihlava Land Office

on 14 October 1994, on grounds of non-compliance with the legal requirements.  It explained that the confiscated property of persons who were deprived of Czechoslovak citizenship under the Benes decrees in 1945, may be restituted in cases where the claimant has his citizenship renewed through the procedures set by law.  However, the law did not expressly address the situation of persons who never lost their citizenship and whose property was confiscated in violation of the laws operative at that time.  Since the author's father never lost his Czechoslovak citizenship, he could not be considered to be an entitled person and the property could not be restored.

4.2       The State party further explained that the author's appeal was dismissed for being filed out of time.  The author's lawyer then raised the objection that the Land Office's decision had not been served properly, since it had not been served to the lawyer directly, but to a member of his staff, who was not authorized to receive it.  The Land Office accepted the objection, and served the decision again.  The author subsequently appealed against the decision.  The City Court dismissed the appeal by a ruling dated 6 August 1996, on the ground that the

decision had been properly served the first time and should not have been served a second time.  On 11 October 1996, the author filed a constitutional complaint, which was dismissed by the Constitutional Court as inadmissible ratione temporis.

4.3       On the basis of all the reasons given, the State party argued that the author's communication was inadmissible for non-exhaustion of domestic remedies since she missed the deadlines for the appeals. 

4.4       The State party further submitted that, since the present communication had been submitted to the Committee, the Constitutional Court had decided, in cases similar to that of the author's father, that applicants who never lost their citizenship were also entitled to restitution under law No. 243/1992.  As a consequence, the Central Land Office, which examined the author's file, decided that the Land Office's decision in the author's case should be reviewed, since it was inconsistent with the Constitutional Court's ruling.  On 27 August 1997, the Central Land Office initiated administrative proceedings and on 9 October 1997, it quashed the Land Office's decision of 14 October 1994, and decided that the author should restart her application for restitution ab initio.  Normal appeal possibilities would be open to the author if she was not satisfied with the outcome of the proceedings.  Also for this reason, the State party argued that the communication was inadmissible under article 5, paragraph 2 (b), of the Optional Protocol.

The author's comments

5.1       By a letter of 21 January 1998, the author rejected the State party's argument that her communication was inadmissible, since she had already appealed up to the Constitutional Court and no further appeal was available.  However, the author confirmed that after her communication was registered for consideration by the Human Rights Committee, new proceedings were ordered. 

5.2       In a further submission, the author forwarded a copy of a letter by the Ministry for Agriculture, dated 25 May 1998, in which she was informed that the decision of the Central Land Office of 9 October 1997 to quash the decision of the Land Office of 14 October 1994 had been served to other interested parties after the expiration term of three years of the latter decision, and that it therefore did not attain legal force.

5.3       The author claimed that the pattern of arbitrariness in her case constitutes a flagrant violation of human rights in denying her a remedy for the abuses committed against her and her family in the past. 

Additional comments by the State party on the admissibility

6.         No further observations were received from the State party, although the author's comments had been transmitted to it. 

Decision on admissibility

7.         At its sixty-sixth session, on 9 July 1999, the Committee considered the admissibility of the communication.  Having ascertained, pursuant to article 5, paragraph 2 of the Optional Protocol, that the author had exhausted all available domestic remedies and that the same matter was not being examined under another procedure of international investigation or settlement, the Committee also noted that the State party reopened the author's case by a decision of the Central Land Office of 9 October 1997 and that, as a result of errors apparently committed by the State party's authorities, the decision to quash the original decision of the Land Office had never come into effect.  In the circumstances, the Committee declared the communication admissible. 

Observations by the parties on the merits

8.1       Despite having been invited to do so by the decision of the Committee of 9 July 1999 and by a reminder of 19 September 2000, the State party has not submitted any observations or comments on the merits of the case. 

8.2       By letters of 25 January 2000, 29 August 2000 and 25 June 2001, the author brought to the attention of the Committee that despite the adoption by the State party's Parliament of new legislative measures governing the restitution of property confiscated as a result of the Holocaust (Act No. 212/2000), the authorities had not been willing to apply such a legislation and have never compensated her. 

8.3       Despite having been transmitted the above information by a letter of 24 July 2001, the State party has not made any additional comments. 

Issues and proceeding 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.  Moreover, in the absence of any submission from the State party following the Committee's decision on admissibility, the Committee relies on the detailed submissions made by the author so far as they raise issues concerning Law No. 243/1992 as amended.  The Committee recalls in this respect that a State party has an obligation under article 4, paragraph 2, of the Optional Protocol to cooperate with the Committee and to submit written explanations or statements clarifying the matter and the remedy, if any, that may have been granted.  The complaint of the author raises issues under article 26 of the Covenant. 

9.2       The Committee notes that the State party concedes that under Law No. 243/1992 individuals in a similar situation as that of the author qualify for restitution as a result of the subsequent interpretation given by the Constitutional Court (para. 4.4).  The State party further

concedes that the decision of the Jihlava Land Office of 14 October 1994 was wrong and that the author should have had the opportunity to enter a fresh application before the Jihlava Land Office.  The author's renewed attempt to obtain redress has, however, been frustrated by the State party itself which, through a letter of the Ministry of Agriculture of 25 May 1998, informed  the author that the decision of the Jihlava Land Office of 14 October 1994 had become final on the ground that the decision of the Central Land Office reversing the decision of the Jihlava Land Office had been served out of time.

9.3       Given the above facts, the Committee concludes that, if the service of the decision of the Central Land Office reversing the decision of the Jihlava Land Office was made out of time, this was attributable to the administrative fault of the authorities.  The result is that the author was deprived of treatment equal to that of persons having similar entitlement to the restitution of their previously confiscated property, in violation of her rights under article 26 of the Covenant. 

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 therefore of the view that the facts before it disclose a violation of article 26 of the Covenant. 

11.       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, including an opportunity to file a new claim for restitution or compensation.  The State party should review its legislation and administrative practices to ensure that all persons enjoy both equality before the law as well as the equal protection of the law. 

12.       The Committee recalls that the Czech Republic, by becoming a State party to the Optional Protocol, 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 and enforceable remedy in case a violation has been established. 

13.       The Committee wishes to receive from the State party, within 90 days following the transmittal of these Views to the State party, information about the measures taken to give effect to the Views. 

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

Notes

APPENDIX

Individual opinion of Committee member Ms. Christine Chanet (dissenting)

            The State party did not consider it necessary to provide any explanation as to the substance of the case since, in its view, domestic remedies had not been exhausted. 

            In paragraphs 10.2 and 10.3 of its decision, the Committee finds a violation of the Covenant in administrative decisions, but fails to take into account the State party's observations, in which the State party maintained that those decisions could be contested through the remedy of the courts and that the author of the communication had sought to avail herself of that remedy but had done so out of time. 

            Accordingly, this communication ought, in my opinion, to have been considered inadmissible. 

                                                                        (Signed)  Christine Chanet

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

N.  Communication No. 774/1997, Brok v. The Czech Republic

     (Views adopted on 31 October 2001, seventy-third session)*

Submitted by:                                       Mr. Robert Brok (deceased) and his surviving spouse

                                                            Dagmar Brokova

           

Alleged victims:                         The author and his surviving spouse Dagmar Brokova

           

State party:                                           The Czech Republic

           

Date of communication:             23 December 1996 (initial submission)

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

            Meeting on 31 October 2001,

            Having concluded its consideration of Communication No. 774/1997, submitted to the Human Rights Committee by Mr. Robert Brok (deceased) and by his surviving spouse Dagmar Brokova under the Optional Protocol to the International Covenant on Civil and Political Rights,

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

            Adopts the following: 

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

1.         The original author of the communication dated 23 December 1996, Robert Brok, was a Czech citizen, born in September 1916.  When he passed away on 17 September 1997, his wife Dagmar Brokova maintained his communication.  It is claimed that the Czech Republic has violated articles 6, 9, 14 (1), 26 and 27 of the Covenant.  The Optional Protocol entered into force for the Czech Republic on 12 June 1991.  The author is not represented by counsel. 

The facts as submitted

2.1       Robert Brok's parents owned a house in the centre of Prague since 1927 (hereinafter called the property).  During 1940 and 1941, the German authorities confiscated their property with retroactive effect to 16 March 1939, because the owners were Jewish.  The property was then sold to the company Matador on 7 January 1942.  The author himself, was deported by the Nazis, and returned to Prague on 16 May 1945, after having been released from a concentration camp.  He was subsequently hospitalized until October 1945.

2.2       After the end of the war, on 19 May 1945, President Benes' Decree No. 5/1945, followed up later by Act 128/1946, declared null and void all property transactions effected under pressure of the occupation regime on the basis of racial or political persecution.  National administration was imposed on all enemy assets.  This included the author's parents' property pursuant to a decision taken by the Ministry of Industry on 2 August 1945.  However, in February 1946, the Ministry of Industry annulled that decision.  It also annulled the prior property confiscation and transfers, and the author's parents were reinstated as the rightful owners, in accordance with Benes Decree No. 5/1945.

2.3       However, the company Matador, which had been nationalized on 27 October 1945, appealed against this decision.  On 7 August 1946, the Land Court in Prague annulled the return of the property to the author's parents and declared Matador to be the rightful owner.  On 31 January 1947, the Supreme Court confirmed this decision.  The Court found that since the company with all its possessions had been nationalized in accordance with Benes Decree No. 100/1945 of 24 October 1945, and since national property was excluded from the application of Benes Decree No. 5/1945, the Ministry had wrongfully restored the author's parents as the rightful owners.  The property thereby stayed in possession of Matador, and was later, in 1954, transferred to the State company Technomat.

2.4       Following the change to a democratic government at the adoption of restitution legislation, the author applied for restitution under Act No. 87/1991 as amended by Act No. 116/1994.  The said law provides restitution or compensation to victims of illegal confiscation carried out for political reasons during the Communist regime

(25 February 1948‑1 January 1990).  The law also made provisions for restitution or compensation to victims of racial persecution during the Second World War, who have an entitlement by virtue of Decree No. 5/1945.  The courts (District Court decision 26 C 49/95

of 20 November 1995 and Prague City Court decision 13 Co 34/94-29 of 28 February 1996), however, rejected the author's claim.  The District Court states in its decision that the amended Act extends the right to restitution to persons who lost their property during the German occupation and who could not have their property restituted because of political persecution,

or who went through legal procedures that violated their human rights subsequent

to 25 February 1948, on condition that they comply with the terms set forth in Act No. 87/1991.  However, the court was of the opinion that the author was not eligible for restitution, because

the property was nationalized before 25 February 1948, the retroactive cut-off date for claims under Act No. 87/1991 section 1, paragraph 1, and section 6.  This decision was confirmed by the Prague City Court.

2.5       Pursuant to section 72 of Act No. 182/1993, the author filed a complaint before the Constitutional Court that his right to property had been violated.  This provision allows an individual to file a complaint to the Constitutional Court if the public authority has violated the claimant's fundamental rights guaranteed by a constitutional law or by an international treaty in particular the right to property.

2.6       The Constitutional Court concluded that since the first and second instances had decided that the author was not the owner of the property, there were no property rights that could have been violated.  In its decision, the Constitutional Court invoked the question of fair trial on its own motion and concluded that "the legal proceedings were conducted correctly and all the legal regulations have been safeguarded".  Accordingly, the Constitutional Court rejected the author's constitutional complaint on 12 September 1996.

The complaint

3.1       The author alleges that the court decisions in this case are vitiated by discrimination and that the courts' negative interpretation of the facts is manifestly arbitrary and contrary to the law.

3.2       The author's widow contends that the Act No. 87/1991, amended by Act No. 116/1994, is not applied to all Czech citizens equally.  She deems it obvious that Robert Brok met all the conditions for restitution set forth in the law, but contends that the Czech courts were not willing to apply these same criteria to his case, in violation of articles 14, paragraph 1 and 26 of the Covenant.

3.3       The author's widow contends that the decision by the Supreme Court in 1947 was

contrary to the law, in particular Benes Decree No. 5/1945 and Act No. 128/1946, which annul all property transfers after 29 September 1938 taken for reasons of national, racial or political persecution.  She points out that at the time that Benes Decree No. 5/1945 was issued (10 May 1945), the company Matador had not yet been nationalized and that the exclusion of restitution therefore did not apply.

3.4       The author's widow states that the Act No. 87/1991 amended by Act No. 116/1994 section 3, paragraph 2 contains an exception to the time limitations and enables the author as entitled through Benes Decree No. 5/1945 to claim restitution.  According to the author's widow, the intention of this exception is to allow restitution of property that was confiscated before 25 February 1948 owing to racial persecution, and especially to allow restitution of Jewish property. 

3.5       The author's widow further claims that since the initial expropriations happened as part of genocide, the property should be restored regardless of the positive law in the Czech Republic.  The author points to other European countries where confiscated Jewish properties are restituted to the rightful owners or to Jewish organizations if the owners could not be identified.  Article 6 of the Covenant refers to obligations that arise from genocide.  In the authors' opinion, the provision should not be limited to obligations arising from complainants killed in genocide, but also to those, like Robert Brok, who survived genocide.  The refusal to restitute property thereby constitutes violation of article 6, paragraph 3, of the Covenant.

3.6       The Czech Republic has, according to the author's widow, systematically refused to return Jewish properties.  She claims that since the Nazi expropriation targeted the Jewish community as a whole, the Czech Republic's policy of non-restitution also affects the whole group.  As a result and for the reason of lacking economical basis, the Jewish community has not had the same opportunity to maintain its cultural life as others, and the Czech Republic has thereby violated their right under article 27 of the Covenant. 

Observations by the State party

4.1       By note verbale of 16 October 2000, the State party objects to the admissibility of the communication.  The grounds for the State party's objections are the following:

            (a)        It argues that the author invoked only the right to own property in the domestic procedure, and not the rights covered by the Covenant.  Thus, the vindication of domestic remedies for Covenant rights are not engaged;

            (b)        The State party points out that the events complained of occurred prior to the entry into force of the Optional Protocol for the Czech Republic, when the property was subject to confiscation in the 1940s, and the communication is therefore inadmissible ratione temporis; and

            (c)        The State party notes that the communication concerns the right to own property, which is not covered by the Covenant, and the communication is therefore inadmissible ratione materiae.

4.2       The State party contends that the author on 19 February 1946 obtained restitution of his property on the basis of the Industry Ministry Decision No. II/2-7540/46 and not on the basis of the National Committee decision as empowered by Decree No. 5/1945.  It further states that the procedure chosen by the author was inconsistent with the special legislation governing exemptions from national administration.  In addition, the author's father did not avail himself of Decree No. 108/1945 that regulated the confiscation of enemy assets and the establishment of National Restoration Funds.  He thereby waived enlarged avenues for appeals against dismissal of claims for exemptions from national administration, to the Ministry of Interior.

4.3       Furthermore, the State party contends that the author in his claim to the courts in 1995/1996 did not complain about discrimination nor challenge the handling of the case by the courts in 1946 and 1947.

4.4       The State party points out that in Communication No. 670/1995 Schlosser v. The Czech Republic and in Communication No. 669/1995 Malik v. The Czech Republic, the Committee concluded that the said legislation applied in these cases was not prima facie discriminatory within the meaning of article 26 of the Covenant merely because it did not compensate victims of injustices committed in the period before the Communist regime.

4.5       The State party contends that all formal restoration of title according to Decree No. 5/1945 was completed before 25 February 1948, whereas the Act No. 87/1991 as amended only covers restitution of property that was confiscated between 25 February 1948 and 1 January 1990. 

Author's comments to State party's submission

5.1       By letter of 29 January 2001, the author's widow contends that the State party has not addressed her arguments concerning the amendment to Act No. 87/1991 by Act No. 116/1994, which she considers crucial for the evaluation of the case.

5.2       She further states that the property would never have become subject to nationalization if it were not for the prior transfer of the assets to the German Reich which was on racial basis, and therefore the decisions allowing nationalization were discriminatory.  The author's widow concedes that the communication concerns a property right, but explains that the core of the violation is the element of discrimination and the denial of equality in contravention of articles 6, 14, 26 and 27 of the Covenant.

5.3       The author's widow further contends that the claim complies with the ratione temporis condition, since the claim relates to the decisions made by the Czech courts in 1995 and 1996.

5.4       With regard to the State party's claim that the author's father could have claimed the property pursuant to Act No. 128/1946 until 31 December 1949, the author's widow contends that the author's father had good reason to fear political persecution from the Communist regime after 25 February 1948.  Moreover, the violations of the Communist regime are not before the Committee, but rather the ratification and continuation of those violations by the arbitrary denial of redress following the adoption of restitution legislation in the 1990s. The author's submission was transmitted to the State party on 7 February 2001. The State party, however, has not responded to the author's comments.

Examination of admissibility

6.1       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.

6.2       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.

6.3       The Committee has noted the State party's objections to the admissibility and the author's comments thereon.  It considers that the State party's allegations that the author has not met the ratione temporis condition for admissibility, is not relevant to the case, viewing that the author specifically noted that his claim relates to the decisions of the Czech courts in 1995 and 1996.

6.4       With regard to the State party's objections ratione materiae, the Committee notes that the author's communication does not invoke a violation of the right to property as such, but claims that he is denied a remedy in a discriminatory manner.

6.5       Furthermore, to the State party's objections that the communication is inadmissible for non-exhaustion of domestic remedies, the Committee notes that the facts raised in the present communication have been brought before the domestic courts of the State party in the several applications filed by the author, and have been considered by the State party's highest judicial authority.  However, the issues relating to articles 6, 9 and 27 appear not to have been raised before the domestic courts.  The Committee considers that it is not precluded from considering the remaining claims in the communication by the requirement contained in article 5, paragraph 2 (b), of the Optional Protocol.

6.6       In its inadmissibility decisions on communications No. 669/1995 Malik v. The Czech Republic and 670/1995 Schlosser v. The Czech Republic, the Committee held that the author there had failed to substantiate, for purposes of admissibility, that Act No. 87/1991 was prima facie discriminatory within the meaning of article 26.  The Committee observes that in this case the late author and his widow have made extensive submissions and arguments which are more fully substantiated, thus bringing the case over the threshold of admissibility so that the issues must be examined on the merits.  Moreover, the instant case is distinguishable from the above cases in that the amendment of Act No. 87/1991 by Act No. 116/1994 provides for an extension for a claim of restitution for those entitled under Benes Decree No. 5/1945.  The non‑application of this extension to the author's case raises issues under article 26, which should be examined on the merits. 

6.7       The Committee finds that the author has failed to substantiate for purposes of admissibility his claims under article 14, paragraph 1 of the Covenant.  Thus, this part of the claim is inadmissible under article 2 of the Optional Protocol. 

Examination of merits

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

7.2       The question before the Committee is whether the application of Act No. 87/1991, as amended by Act No. 116/1994, to the author's case entails a violation of his right to equality before the law and to the equal protection of the law.

7.3       These laws provide restitution or compensation to victims of illegal confiscation carried out for political reasons during the Communist regime.  The law also provides for restitution or compensation to victims of racial persecution during the Second World War who had an entitlement under Benes Decree No. 5/1945.  The Committee observes that legislation must not discriminate among the victims of the prior confiscation to which it applies, since all victims are entitled to redress without arbitrary distinctions.

7.4       The Committee notes that Act No. 87/1991 as amended by Act No. 116/1994 gave rise to a restitution claim of the author which was denied on the ground that the nationalization that took place in 1946/47 on the basis of Benes Decree No. 100/1945 falls outside the scope of laws of 1991 and 1994.  Thus, the author was excluded from the benefit of the restitution law although the Czech nationalization in 1946/47 could only be carried out because the author's property was confiscated by the Nazi authorities during the time of German occupation.  In the Committee's view this discloses a discriminatory treatment of the author, compared to those individuals whose property was confiscated by Nazi authorities without being subjected, immediately after the war, to Czech nationalization and who, therefore, could benefit from the laws of 1991 and 1994.  Irrespective of whether the arbitrariness in question was inherent in the law itself or whether it resulted from the application of the law by the courts of the State party, the Committee finds that the author was denied his right to equal protection of the law in violation of article 26 of the Covenant.

8.         The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, is of the view that the facts before it substantiate a violation of article 26 in conjunction with article 2 of the Covenant.

9.         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.  Such remedy should include restitution of the property or compensation, and appropriate compensation for the period during which the author and his widow were deprived of the property, starting on the date of the court decision of 20 November 1995 and ending on the date when the restitution has been completed.  The State party should review its relevant legislation and administrative practices to ensure that neither the law nor its application entails discrimination in contravention of article 26 of the Covenant. 

10.       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 and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective 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 to be issued also in Arabic, Chinese and Russian as part of the present report.

Note

O.  Communication No. 779/1997, Äärelä and Näkkäläjärvi v. Finland

                        (Views adopted on 24 October 2001, seventy-third session)*

Submitted by:                                       Mrs. Anni Äärelä and Mr. Jouni Näkkäläjärvi

                                                            (represented by counsel, Ms. Johanna Ojala)

Alleged victims:                         The authors

State party:                                           Finland

Date of communication:             4 November 1997

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

            Meeting on 24 October 2001,

            Having concluded its consideration of Communication No. 779/1997, submitted to the Human Rights Committee by Mrs. Anni Äärelä and Mr. Jouni Näkkäläjärvi under the Optional Protocol to the International Covenant on Civil and Political Rights,

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

            Adopts the following:

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

1.         The authors of the communication, dated 4 November 1997, are Anni Äärelä and Jouni Näkkäläjärvi, both Finnish nationals.  They claim to be victims of a violation by Finland of articles 2, paragraph 3, 14, paragraphs 1 and 2, and 27 of the Covenant.  They are represented by counsel.

The facts as submitted

2.1       The authors are reindeer breeders of Sami ethnic origin and members of the Sallivaara Reindeer Herding Co-operative.  The Co-operative has 286,000 hectares of State-owned land available for reindeer husbandry.  On 23 March 1994, the Committee declared a previous communication, brought by the authors among others and which alleged that logging and road construction activities in certain reindeer husbandry areas violated article 27 of the Covenant, inadmissible for non-exhaustion of domestic remedies.  In particular, the Committee considered that the State party had shown that article 27 could be invoked in the relevant domestic proceedings, which the authors should have engaged before coming to the Committee.  Thereafter, following unsuccessful negotiations, the authors brought a suit in the Lappi District Court of first instance against the National Forestry and Park Service (Forestry Service).  The suit sought the enjoinder, on the basis inter alia of article 27 of the Covenant, of any logging or road‑construction in the Mirhaminmaa-Kariselkä area.  This area is said to be amongst the best winter herding lands of the Sallivara Co-operative.

2.2       On 30 August 1996, the District Court decided, following an on-site forest inspection at the authors' request, to prohibit logging or road construction in the 92 hectare Kariselkä area, but to allow it in the Mirhaminmaa area.  The Court applied a test of "whether the harmful effects of felling are so great that they can be deemed to deny to the Sami a possibility of reindeer herding that is part of their culture, is adapted to modern developments, and is profitable and rational".  The Court considered that logging in the Mirhaminmaa area would be of long-term benefit to reindeer herding in the area and would be convergent with those interests.  In the Kariselkä area, differing environmental conditions meant that there would be a considerable long-term decrease in lichen reserves.  Relying inter alia on the decisions of the Committee, the Court found that these effects of logging, combined with the fact that the area was an emergency feeding ground, would prevent reindeer herding in that area.  A factor in the decision was the disclosure that an expert testifying for the Forestry Service disclosed he had not visited the forest in question.  After the decision, logging duly proceeded in the Mirhaminmaa area.

2.3       On appeal by the Forestry Service to the Rovaniemi Court of Appeal, the Forestry Board sought the then exceptional measure of oral hearings.  The Court granted this motion, while rejecting the author's motion that the appellate court itself conduct an on-site inspection.  The expert witness, having in the meanwhile examined the forest, repeated his first instance testimony for the Forestry Service.  Another expert witness for the Forestry Service testified that the authors' herding cooperative would not suffer greatly in the reduction of herding land through the logging in question, however the Court was not informed that the witness already had proposed to the authorities that the authors' herd should be reduced by 500 owing to serious overgrazing.

2.4       On 11 July 1997, the Appeal Court, reversing the first instance decision, allowed logging also in the Kariselkä area, and awarded costs of 75,000 Finnish marks against the authors.  The Court took a different view of the expert evidence.  It found that the small area of logging proposed (which would not involve further roadworks) would have minimal effects on the quantities of arboreal lichen and, over time, increase the amounts of ground lichen.  In light of the finding that the area was not the main winter pasture and in recent years had not been used as a back-up area, the Court concluded it had not been shown that there would be adverse effects on reindeer in the long run and even the immediate effects would be small.  The authors were not made aware by the Appeal Court or the Forestry Service that the latter had presented allegedly distorted arguments to the Court based on the Committee's finding of no violation of article 27 of the Covenant in the separate case of Jouni Länsman et al. v. Finland.  The authors learned of this brief only upon receiving the Appeal Court's judgement, in which it stated that the material had been taken into account, but that an opportunity for the authors to comment was "manifestly unnecessary".  On 29 October 1997, the Supreme Court decided, in its discretion and without giving reasons, not to grant leave to appeal.  Thereafter, logging took place in the Kariselkä area, but no roads were constructed.

2.5       On 15 December 1997, the Ombudsman decided that the municipality of Inari and its mayor had exerted inappropriate pressure on the authors by formally asking them to withdraw from their legal proceedings, but did not find that the Forestry Service had acted unlawfully or otherwise wrongly.  The Ombudsman limited his remedy to bringing this conclusion to the attention of the parties.  On 1 June 1998, a decision of the Ministry of Agriculture and Forestry (of 13 November 1997) entered into effect reducing the permissible size of the Sallivaara herd by 500 head from 9,000 to 8,500 animals.  On 3 and 11 November 1998, the Forestry Service required a total sum of over 20,000 Finnish marks from the authors towards meeting the costs judgement.  This sum distrained by the Forestry Service corresponds to a major share of the authors' taxable income.

The complaint

3.1       The authors claim a violation of article 27 of the Covenant in that the Appeal Court allowed logging and road construction in the Kariselkä area, comprising the best winter lands of the authors' herding cooperative.  The authors contend that this logging in the herding lands, coupled with a reduction at the same time of the permissible number of reindeer, amounts to a denial of their right to enjoy their culture, in community with other Sami, for which the survival of reindeer herding is essential.

3.2       The authors claim a violation of article 14, paragraphs 1 and 2, of the Covenant, contending that the Appeal Court was not impartial, having prejudged the outcome of the case and violated the principle of equality of arms in (i) allowing oral hearings while denying an on‑site inspection and (ii) taking into account material information without providing an opportunity to the other party to comment.  The authors also contend that the award of costs against the authors at the appellate level, having succeeded at first instance, represents bias and effectively prevents other Sami from invoking Covenant rights to defend their culture and livelihood.  There is no State assistance available to impecunious litigants to satisfy the imposition of costs.

3.3       The authors also claim improper influence was exerted by the Forestry Service while the case was before the courts.  They claim to have been harassed, to have had public meetings arranged to criticize them, to have had the municipality formally request withdrawal of the suit or risk endangering the herding cooperative's economic development, and to have had the Forestry Service make unfounded allegations of criminal conduct against one of the authors.

3.4       The authors claim that the Supreme Court's unreasoned decision denying leave to appeal violated the right to an effective remedy within the meaning of article 2, paragraph 3, of the Covenant.  They contend that the denial of leave to appeal to the Supreme Court, where a miscarriage of justice, in violation of article 14, had been demonstrated, means no effective remedy existed for that violation.

The State party's submissions with respect to the admissibility and merits of the communication

4.1       The State party responded to the communication by submission dated 10 April 1999.  The State party contests the admissibility of the case.  It argues that, in respect of some claims, domestic remedies have not been exhausted.  As the authors did not appeal against the part of the first instance judgement that allowed logging and road construction in the Mirhaminmaa area, they have not exhausted available domestic remedies and that part of the claim is not admissible under article 5, paragraph 2 (b), of the Optional Protocol. 

4.2       The State party argues that no violation of any provision of the Covenant has been shown.  As to the claims under article 27, the State party accepts that the Sami community is an ethnic minority protected under that provision, and that individuals are entitled to its protection.  It accepts further that reindeer husbandry is an accepted part of Sami culture and is accordingly protected under article 27 insofar as is essential to the Sami culture and necessary for its survival.

4.3       The State party argues however, referring to Lovelace v. Canada and Ilmari Länsman et al. v. Finland, that not every interference which in some limited way alters previous conditions can be regarded as a denial of article 27 rights.  In the Länsman case, the Committee articulated a test of whether the impact is "so substantial that it does effectively deny [article 27 rights]".  The State party also refers to jurisprudence of the Norwegian Supreme Court and the European Commission on Human Rights requiring serious and significant interference with indigenous interests before justiciable issues arise.

4.4       In the present case, the State party emphasizes the limited extent of the Kariselkä logging, amounting to 92 hectares of a total of 286,000 hectares of the Co-operative's total lands.  The State party refers to the facts in the Jouni Länsman et al. v. Finland case, where the Committee considered logging covering 3,000 of 255,000 hectares not to disclose a violation of article 27.

4.5       The State party points out that the author's claims were thoroughly examined in two courts, which considered the case explicitly in the light of article 27 of the Covenant.  The courts heard expert witnesses, examined extensive documentary material and conducted an on‑site inspection before coming to an evaluation of the facts.  The Court of Appeal determined that the lichen pastures were poor, and that logging would assist the recovery of such lichen.  The intermediate cutting envisaged was also a lower impact form of logging that would have less significant effects, and was less than the logging envisaged in the Jouni Länsman case where the Committee found no breach.  The State party also contests whether the Kariselkä area could be described as "best (winter) herding lands", noting that the Court found that the area was not the main pasture area in winter, and in recent years had not even been used as a back-up area.

4.6       The State party also emphasizes that, as required by the Committee in Jouni Länsman, the affected persons effectively participated in the decisions affecting them.  The Forestry Service plans were developed in consultation with reindeer owners as key stakeholder groups.  The Sallivaara Committee's opinion resulted in a course being adopted different to that originally recommended by the Wilderness Committee to reconcile forestry and herding, including a reduced area available to forestry.  In this connection the State party refers extensively to the legal obligations on the Forestry Service to sustainably manage and protect natural resources, including the requirements of Sami reindeer herding culture.  Accordingly, the State party argues that the different interests of forestry and reindeer husbandry have been properly weighed in coming to the most appropriate forestry management measures.

4.7       The State party points to the Committee's approval of this kind of reconciliation in Ilmari Länsman, where it considered that for planned economic activities to be consistent with article 27 the authors had to be able to continue to benefit from husbandry.  The measures contemplated here also assist reindeer husbandry by stabilizing lichen supplies and are compatible with it.  Moreover, many herdsmen, including the authors, practise forestry on their lands in addition to pursuing husbandry.

4.8       Finally, the State party contends that, contrary to the authors' assertion, no decision to reduce reindeer numbers has been made, although the Herdsmen's Committees and the Sami Parliament have provided opinions.

4.9       In sum, the State party argues with respect to this claim that the authors' right to enjoy Sami culture, including reindeer husbandry, has been appropriately taken into consideration in the case.  While the logging and consequential waste will temporarily have certain adverse effects on the pasture, it has not been shown that the consequences would create considerable and long-term effects which would prevent the authors from continuing reindeer herding in the area to its present extent.  On the contrary, it has been indicated that due to heavy grazing the pastures were in bad condition and needed to recover.  Furthermore, the area in question is a very small proportion of the Co-operative's area, and during winter the area has been used mostly at times of crisis in the 1970s and 1980s.

4.10     As to the authors' claims under article 14, the State party rejects that either the imposition of legal costs or the procedures pursued by the courts reveal violations of article 14.

4.11     As to the imposition of costs, the State party points out that under its law there is an obligation for the losing party to pay, when sought, the reasonable legal costs of the successful party.  The law does not alter this situation when the parties are a private individual and public authority, or when the case involves human rights issues.  These principles are the same in many other States, including Austria, Germany, Norway and Sweden, and are justified as a means of avoiding unnecessary legal proceedings and delays.  The State party argues this mechanism, along with free legal aid for lawyers' expenses, ensures equality in the courts between plaintiffs and defendants.  The State party notes however that, from 1 June 1999, an amendment to the law will permit a court ex officio to reduce a costs order that would otherwise be manifestly unreasonable or inequitable with regard to the facts resulting in the proceedings, the position of the parties and the significance of the matter.

4.12     In the present case, the award of costs against the authors was 10,000 Finnish marks lower than the sum of 83,765.59 Finnish marks actually sought by the Forestry Service.

4.13     As to the procedure adopted by the Court of Appeal, the State party argues that under its law (as it then was), it is not for the parties to decide on an oral hearing, but for the court to arrange one where it was necessary to assess the reliability and weight of oral witness statements taken in the district court.  As to the refusal to make an on-site inspection, the Court considered, after the full oral hearing and evidence, that such an inspection would not provide any further relevant evidence.  The District Court records of inspection were not in dispute, and accordingly an inspection was not necessary.  The State party notes that a witness could go and see the relevant area, and such a visit cannot have jeopardized the interests of justice.  However, the Court's judgement does not show whether the witness had in fact gone to the forest, or how decisive that evidence was.  The authors also had a witness familiar with the forest in question.

4.14     As to the observations on the Jouni Länsman case submitted by the Forestry Service after the expiry of the appeal time limit, the State party notes that this occurred simply because the Committee's Views were delivered after that point.  The Forestry Service letter contained only factual description of the decision and no detailed comment, and the State party therefore considered it manifestly unnecessary to request comments from the other party.  The State party notes that the court could in any event have taken the Committee's Views into account ex officio as a source of law, and that both parties could have commented on the Views in the oral hearing.

4.15     The State party rejects the authors' contentions that there is no right to an effective remedy, in breach of article 2.  The Covenant is directly incorporated into Finnish law and can be (and was) directly pleaded before all levels of the courts.  Any first instance decision may be appealed, while appellate judgements may only be appealed with leave.  This is granted only when necessary to ensure consistent court practice, when there is a procedural or other fault requiring annulment of the lower decision, or where other weighty reasons exist.  Here, two full instances gave comprehensive consideration to the authors' claims and arguments.

4.16     As to the general claims of harassment and interference, the State party observes that the Forestry Service reported to the police a suspected offence of unauthorized felling of timber on State land by one author's husband.  While the matter is still under police investigation, the author in question has paid the Forestry Service compensation for the damage and costs of investigation.  However, these matters have not affected the Forestry Service's conduct in the issues raised by the communication.

The authors' response to the State party's submissions

5.1       The authors responded to the State party's submissions on 10 October 1999.

5.2       As to the admissibility of the communication, the authors state that they did not seek remedies for the logging in the Mirhaminmaa area, concentrating in the Court of Appeal on defending the District Court's decision on the Kariselkä area.

5.3       As to the merits, the authors argue, however, that the logging of the Mirhaminmaa area immediately and necessarily affect the authors' article 27 rights.  This logging in the best winterlands of the Co-operative increasingly encroaches on the authors' husbandry and increases the strategic significance of the Kariselkä area for herding, and should therefore be taken into account.  The Kariselkä area becomes especially crucial during crisis situations in winter and spring, when the reindeer are suffering from lack of nourishment due to the paucity of such areas.  The authors argue that the Kariselkä area's significance has also increased since other activities in the area limit the possibilities for herding, including large-scale gold mining, other mineral mining, large-scale tourism, and the operation of a radar station.  They point out that the reduced amount of land available for herding after such encroachments has contributed to overgrazing of the remaining pastures.  The authors point out that in any event the logging in the Kariselkä area has been undertaken.

5.4       The authors dispute the State party's observation that no decision aimed at reducing reindeer numbers has been made, and in substantiation submit the text of a decision of the Ministry of Agriculture and Forestry, dated 13 November 1997 which entered into effect on 1 June 1998, reducing the Sallivaara herd by 500 head from 9,000 to 8,500 animals.  This reduction was a consequence of poor pasture conditions (itself acknowledged by the State party), while the Court of Appeal allegedly concluded that the pastures were sufficient and in good condition.  The authors also object to the State party's reference to the authors' own logging activities, stating these were necessary to secure their subsistence in poor economic conditions and were in any event not comparable in scale to the logging undertaken by the State party.

5.5       As to the State party's arguments on the issues raised under article 14 in the communication, the authors clarify, on the issue of the award of legal costs, that the now amended and more flexible regime regarding costs did not apply to them.  That amendment was made partly as a result of the filing of this communication.  The authors point out that the Forestry Authority, in enforcing the award of costs, publicly announced that it sought to "prevent unnecessary trials".  However, the fact that the authors prevailed at first instance demonstrates that this trial at least could not be considered unnecessary.

5.6       On the issue of the oral hearing and failure to undertake an on-site inspection by the Court of Appeal, the authors note that, while an oral hearing was at the time exceptional, they do no object to the oral hearing as such but to the proceedings as a whole.  The overall proceedings were unfair, because whereas an oral hearing was granted, an on-site inspection was denied.  The authors contend that the request for an on-site inspection was denied by the Court before all witnesses at the hearing had been heard.  In any case, according to Finnish procedure an on-site inspection should have been carried out before the main hearing.  The authors also contend that the records of inspection (comprising one page of minutes and some photographs) do not and cannot replace an on-site inspection lasting a day.

5.7       As to the submissions by the Forestry Service to the Court of Appeal after the expiry of time, the authors state that the submissions included the Committee's Jouni Länsman Views and a brief.  At the commencement of the oral hearing, the authors sought to provide the decision to the Court and were informed that the Forestry Service had already provided it.  The Court did not mention the brief, which did not come to the notice of the authors during the hearings.  According to the authors, the brief included an incorrect interpretation of the Committee's Views, as shown by the translation supplied by the State party.  It could not mean, as the Forestry Service claimed, that no violation of the Covenant had occurred in the present case.  The two cases were clearly different, as the Jouni Länsman Views rested on the treatment afforded in that case by the national courts, which in the present case was still continuing.  The authors consider the brief had a relevant impact on the Court's decision, and the authors were unable to respond to it, in violation of their rights under article 14.  That violation was not cured by the Supreme Court, which denied leave to appeal.  Article 27 was also violated as the logging proceeded as a consequence of proceedings conducted in breach of article 14.

5.8       On 7 August 2001, the authors supplied a further decision of the Ministry of Agriculture of 17 January 2000 to reduce the Sallivaara Co-operative's herd by a further 1,000 head (from 8,500 to 7,500 animals) on account of poor pasture condition.  This constitutes a 17 per cent reduction in the total size of the herd in two and a half years.

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 the authors' complaints do not relate to the Mirhaminmaa area per se, it is not necessary for the Committee to pronounce on the arguments on admissibility adduced by the State party related to this area.  

6.3       As to the authors' claim of inappropriate interference by the municipality of Inari, the Committee considers that, in circumstances where the legal proceedings subject to attempted interference were in fact pursued, the authors have failed to substantiate their arguments that these facts give rise to a violation of a right contained in the Covenant.

6.4       As to the authors' claims that they suffered harassment and intimidation in the course of the proceedings in that the Forestry Authority convened a public meeting to criticize the authors and made an unfounded allegation of theft, the authors have failed to detail their allegations in this regard.  The lack of any materials in substantiation beyond those allegations themselves leaves the Committee unable to properly consider the substance of the allegations and their effects on the proceedings.  Accordingly, this part of the communication has not been substantiated sufficiently, for purposes of admissibility, and is inadmissible under article 2 of the Optional Protocol.

7.1       The Committee finds the remaining portions of the communication admissible and proceeds to a consideration of the merits.  The Committee has considered the communication 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 authors' argument that the imposition of a substantial award of costs against them at the appellate level violated their rights under article 14, paragraph 1, to equal access to the courts, the Committee considers that a rigid duty under law to award costs to a winning party may have a deterrent effect on the ability of persons who allege their rights under the Covenant have been violated to pursue a remedy before the courts.  In the particular case, the Committee notes that the authors were private individuals bringing a case alleging breaches of their rights under article 27 of the Covenant.  In the circumstances, the Committee considers that the imposition by the Court of Appeal of substantial costs award, without the discretion to consider its implications for the particular authors, or its effect on access to court of other similarly situated claimants, constitutes a violation of the authors' rights under article 14, paragraph 1, in conjunction with article 2 of the Covenant.  The Committee notes that, in the light of the relevant amendments to the law governing judicial procedure in 1999, the State party's courts now possess the discretion to consider these elements on a case‑by‑case basis.

7.3       As to the authors' claims under article 14 that the procedure applied by the Court of Appeal was unfair in that an oral hearing was granted and an on-site inspection was denied, the Committee considers that, as a general rule, the procedural practice applied by domestic courts is a matter for the courts to determine in the interests of justice.  The onus is on the authors to show that a particular practice has given rise to unfairness in the particular proceedings.  In the present case, an oral hearing was granted as the Court found it necessary to determine the reliability and weight to be accorded to oral testimony.  The authors have not shown that this decision was manifestly arbitrary or otherwise amounted to a denial of justice.  As to the decision not to pursue an on-site inspection, the Committee considers that the authors have failed to show that the Court of Appeal's decision to rely on the District Court's inspection of the area and the records of those proceedings injected unfairness into the hearing or demonstrably altered the outcome of the case.  Accordingly, the Committee is unable to find a violation of article 14 in the procedure applied by the Court of Appeal in these respects.

7.4       As to the authors' contention that the Court of Appeal violated the authors' right to a fair trial contained in article 14, paragraph 1, by failing to afford the authors an opportunity to comment on the brief containing legal argument submitted by the Forestry Authority after expiry of filing limits, the Committee notes that it is a fundamental duty of the courts to ensure equality between the parties, including the ability to contest all the argument and evidence adduced by the other party.  The Court of Appeal states that it had "special reason" to take account of these particular submissions made by the one party, while finding it "manifestly unnecessary" to invite a response from the other party.  In so doing, the authors were precluded from responding to a brief submitted by the other party that the Court took account of in reaching a decision favourable to the party submitting those observations.  The Committee considers that these circumstances disclose a failure of the Court of Appeal to provide full opportunity to each party to challenge the submissions of the other, thereby violating the principles of equality before the courts and of fair trial contained in article 14, paragraph 1, of the Covenant. 

7.5       Turning to the claim of a violation of article 27 in that logging was permitted in the Kariselkä area, the Committee notes that it is undisputed that the authors are members of a minority culture and that reindeer husbandry is an essential element of their culture.  The Committee's approach in the past has been to enquire whether interference by the State party in that husbandry is so substantial that it has failed to properly protect the authors' right to enjoy their culture.  The question therefore before the Committee is whether the logging of the 92 hectares of the Kariselkä area rises to such a threshold. 

7.6       The Committee notes that the authors, and other key stakeholder groups, were consulted in the evolution of the logging plans drawn up by the Forestry Service, and that the plans were partially altered in response to criticisms from those quarters.  The District Court's evaluation of the partly conflicting expert evidence, coupled with an on-site inspection, determined that the Kariselkä area was necessary for the authors to enjoy their cultural rights under article 27 of the Covenant.  The appellate court finding took a different view of the evidence, finding also from the point of view of article 27, that the proposed logging would partially contribute to the long‑term sustainability of reindeer husbandry by allowing regeneration of ground lichen in particular, and moreover that the area in question was of secondary importance to husbandry in the overall context of the Collective's lands.  The Committee, basing itself on the submissions before it from both the authors and the State party, considers that it does not have sufficient information before it in order to be able to draw independent conclusions on the factual importance of the area to husbandry and the long‑term impacts on the sustainability of husbandry, and the consequences under article 27 of the Covenant.  Therefore, the Committee is unable to conclude that the logging of 92 hectares, in these circumstances, amounts to a failure on the part of the State party to properly protect the authors' right to enjoy Sami culture, in violation of article 27 of the Covenant.

7.7       In the light of the Committee's findings above, it is not necessary to consider the authors' additional claims brought under article 2 of the Covenant.

8.1       The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it reveal a violation by Finland of article 14, paragraph 1, taken in conjunction with article 2 of the Covenant, and additionally a violation of article 14, paragraph 1, of the Covenant taken alone. 

8.2       Pursuant to article 2, paragraph 3 (a), of the Covenant, the Committee considers that the authors are entitled to an effective remedy.  In terms of the award of costs against the authors, the Committee considers that as the costs award violated article 14, paragraph 1, of the Covenant and, moreover, followed proceedings themselves in violation of article 14, paragraph 1, the State party is under an obligation to restitute to the authors that proportion of the costs award already recovered, and to refrain from seeking execution of any further portion of the award.  As to the violation of article 14, paragraph 1, arising from the process applied by the Court of Appeal in handling the brief submitted late by the Forestry Service (para. 7.4), the Committee considers that, as the decision of the Court of Appeal was tainted by a substantive violation of fair trial provisions, the State party is under an obligation to reconsider the authors' claims.  The State party is also under an obligation to ensure that similar violations do not occur in the future.

9.         Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant 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.  The State party is requested also to give publicity to the Committee's Views.

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

Notes

APPENDIX

Individual opinion of Committee member Mr. Prafullachandra N. Bhagwati

(concurring)

            I have gone through the text of the views expressed by the majority members of the Committee.  I agree with those views save in respect of paragraph 7.2 and, partly, in respect of paragraph 8.2.  Since I am in substantial agreement with the majority on most of the issues, I do not think it necessary to set out the facts again in my opinion and I will therefore straightaway proceed to discuss my dissenting opinion in regard to paragraphs 7.2 and 8.2.

            So far as the alleged violation of article 14, paragraph 1, in conjunction with article 2, by the imposition of substantial costs is concerned, the majority members have taken the view that such imposition, on the facts and circumstances of the case, constitutes a violation of those articles.  While some of the members have expressed a dissenting view, I agree with the majority view but I would reason in a slightly different way.

            It is clear that under the law as it then stood, the Court had no discretion in the matter of award of costs.  The Court was under a statutory obligation to award costs to the winning party.  The Court could not tailor the award of costs - even refuse to award costs - against the losing party taking into account the nature of the litigation, the public interest involved, and the financial condition of the party.  Such a legal provision had a chilling effect on the exercise of the right of access to justice by none too wealthy litigants, and particularly those pursuing an actio popularis.  The imposition of substantial costs under such a rigid and blindfolded legal provision in the circumstances of the present case, where two members of the Sami tribe were pursuing public interest litigation to safeguard their cultural rights against what they felt to be a serious violation, would, in my opinion, be a clear violation of article 14, paragraph 1, in conjunction with article 2.  It is a matter of satisfaction that such a situation would not arise in the future, because we are told that the law in regard to the imposition of costs has since been amended.  Now the Court has a discretion whether to award costs at all to the winning party, and, if so, what the amount of such costs should be depending upon various circumstances such as those I have mentioned above.

            So far as paragraph 8.2 is concerned, I would hold that the authors are entitled to the relief set out in paragraph 8.2 in regard to the costs, not only because the award of costs followed upon the proceedings in the appellate Court which were themselves in violation of article 14, paragraph 1, for the reasons set out in paragraph 7.4, but also because the award of costs was itself in violation of article 14, paragraph 1, read in conjunction with article 2, for the reasons set out in paragraph 7.2.  I entirely agree with the rest of paragraph 8.2

                                                                        (Signed)  Prafullachandra N. Bhagwati

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

Individual opinion of Committee members Mr. Abdelfattah Amor,

                     Mr. Nisuke Ando, Ms. Christine Chanet, Mr. Eckart Klein,

Mr. Ivan Shearer and  Mr. Max Yalden (partly dissenting)

            While we share the Committee's general approach with regard to the award of costs (see also Lindon v Australia (Communication No. 646/1995)), we cannot agree that in the present case it has convincingly been argued and proven that the authors were in fact so seriously affected by the relevant decision taken at the appellate level that access to the court was or would in future be closed to them.  In our view, they have failed to substantiate a claim of financial hardship.

            Concerning possible deterrent effects in future on the authors or other potential authors, due note must be given to the amendment of the code of judicial procedure according to which a court has the power to reduce a costs order that would be manifestly unreasonable or inequitable, having regard to the concrete circumstances of a given case (see paragraph 4.11 above).

            However, given that we share the view that the Court of Appeal's judgement is vitiated by a violation of article 14, paragraph 1, of the Covenant (see paragraph 7.4 above), its decision relating to the costs is necessarily affected as well.  We therefore join the Committee's finding that the State party is under an obligation to refund to the authors that proportion of the costs award already recovered, and to refrain from executing any further portion of the award (see paragraph 8.2 of the Committee's views).

(Signed)  Abdelfattah Amor

(Signed)  Nisuke Ando

(Signed)  Christine Chanet

(Signed)  Eckart Klein

(Signed)  Ivan Shearer

(Signed)  Max Yalden

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

P.  Communication No. 788/1997, Cagas v. The Philippines

                                 (Views adopted on 23 October 2001, seventy-third session)*

Submitted by:                                       Messrs. Geniuval M. Cagas, Wilson Butin and

                                                            Julio Astillero    (represented by Crusade against

                                                            Miscarriage of Justice, Inc.)

Alleged victims:                         The authors

State party:                                           The Philippines

Date of communication:             17 September 1996 (initial submission)

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

            Meeting on 23 October 2001,

            Having concluded its consideration of Communication No. 788/1997, submitted to the Human Rights Committee by Messrs. Geniuval M. Cagas, Wilson Butin and Julio Astillero under the Optional Protocol to the International Covenant on Civil and Political Rights,

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

            Adopts the following:

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

1.         The authors of the communication, dated 17 September 1996, are Mr. Geniuval M. Cagas, Mr. Wilson Butin and Mr. Julio Astillero, all citizens of the

Philippines and currently detained in Tinangis Jail and Penal Farm, Philippines.  They claim to be victims of a violation by the Philippines of article 14 (2) of the Covenant.  They are represented by Crusade against Miscarriage of Justice, Inc., a non-governmental organization.

The facts as presented by the authors

2.1       On 23 June 1992, the police of Libmanan, Camarines Sur, Philippines, found the bodies of six women in the house of Dr. Dolores Arevalo, one of the victims.  Their hands had been bound and their heads smashed.

2.2       Although there was no eyewitness to the actual killings, a neighbour, Mr. Publio Rili, claims to have seen four men entering the house of Dr. Arevalo during the evening of 22 June 1992.  Mr. Rili later identified the three authors as being among the individuals he saw on the evening in question.  Soon after the four men entered the house, the same witness heard "thudding sounds" emanating from the house of Dr. Arevalo.  He then saw a car driving away from the premises.

2.3       During the same night, a policeman saw the car in question and wrote down its number plate.  The investigation later revealed that the number plate was that of a car owned by Mr. Cagas.  The two other co-accused and authors are Mr. Cagas' employees.

2.4       According to the investigation, Mr. Cagas was a supplier of medicines in a hospital where Dr. Arevalo was appointed Chief of Hospital sometime before the incident.  It was also reported that Dr. Arevalo refused to purchase medical supplies from Mr. Cagas.

2.5       The prosecution submitted to the Court a certified copy of a telegram that had allegedly been sent by Mr. Cagas to Dr. Arevalo's husband, asking him to tell his wife, Dr. Arevalo, not to ask for rebates in medical supplies any longer.

2.6       The authors were arrested on 26, 29 and 30 June 1992, on suspicion of murder (the so‑called Libmanan massacre).  They claim that they are innocent.

2.7       On 14 August 1992, the authors appeared in Court and were ordered detained until the trial.  On 11 November 1992, the authors filed a petition for bail and on 1 December 1992, they filed a motion to quash the arrest warrants.  On 22 October 1993, the regional Trial Court refused to grant bail.  On 12 October 1994, the Court of Appeals in Manila confirmed the Trial Court Order of 22 October 1993.  A motion for reconsideration of the Court of Appeals' decision was dismissed on 20 February 1995.  On 21 August 1995, the Supreme Court dismissed the authors' appeal against the Court of Appeals' decision.

2.8       On 5 June 1996, Mr. Cagas sent a letter on behalf of the authors to the Court Administrator of the Supreme Court, submitting additional facts in support of their claim that their right to bail had been wrongly denied.

2.9       On 26 July 1996, the Court Administrator replied to the authors that they were no longer entitled to raise issues that were not raised before the Supreme Court.

2.10     In a further submission of 29 May 1998, the authors allege that on 24 and 25 March 1997, one of them, Mr. Julio Astillero had been subjected to "alcohol torture or treatment"1 by prison guards with the purpose to force him to become a "State witness".  The alleged ill-treatment had been reported to Judge Martin Badong, the then presiding judge of the regional trial court, but the latter took no action in this respect.

The complaint

3.1       The authors alleged a violation of article 14 (2) of the Covenant.  They claim that the order for pre-trial detention is based solely on circumstantial evidence, which is not sufficient to justify a denial of bail and that this order has not been properly reviewed by higher courts, which have refused to reconsider the facts as they were assessed by the trial judge.

3.2       The authors claim that, by rejecting their claim on 26 July 1996, the Court Administrator relied on a technicality rather than on the substance of the law, while the issue was related to fundamental constitutional rights.

3.3       The authors note that while the presumption of innocence is a principle embodied in the Philippine Constitution, accused who are denied bail are denied their right to presumption of innocence.  They further contend that a denial of bail deprives them of adequate time and facilities to prepare their defence properly, which constitutes a breach of the principle of due process.

3.4       Although not expressly invoked by the authors, the facts as submitted raise issues under articles 9 (3) and 14 (3) of the Covenant in relation to the time that the authors have spent in pre‑trial detention, and under articles 7 and 10 of the Covenant in relation to the alleged ill‑treatment to which Mr. Julio Astillero was allegedly subjected on 24 and 25 March 1997.

Observations by the State party

4.1       In a submission dated 16 March 1998, the State party transmitted its observations on the merits of the case.

4.2       Emphasizing that the right to due process of law is the cornerstone of criminal prosecution in its jurisdiction, the State party considers that this principle is complied with as long as an accused has been heard by a competent court, prosecuted under the orderly process of law, and punished only after a judgement has been handed down in conformity with constitutional law.

4.3       The State party also points out that the right to bail can be denied whenever the charges are related to an offence punishable by "perpetual reclusion" and when the evidence is strong, an assessment that is left to the judge's discretion.

4.4       In the present case, the State party is of the opinion that the authors, although they were denied bail, have not been denied the right to be presumed innocent, because only a full trial on the merits would allow to declare them guilty beyond reasonable doubt.

4.5       Moreover, the State party considers that, although pre-trial detention is a situation in which the authors might lack adequate time and facilities to prepare their defence, the principle of such a detention does not detract from the essence of due process of law as long as the elements of due process referred to in paragraph 4.2 are present.

4.6       The State party emphasizes that Mr. Cagas had admitted in his letter of 5 June 1996 to the Court Administrator that "the defect noted in the Order of [22 October 1993] was never raised in the certiorari that reached the Court of Appeals and the Supreme Court" and that Mr. Cagas admitted to have directly addressed his grievance to the Court Administrator.  The State party notes in this respect that the Office of the Court Administrator is under the authority of the Supreme Court and is not in any manner involved in the adjudication of cases; it therefore lacks the competence to review decisions taken by the Supreme Court.  The State party further indicates that the authors were duly represented by a prominent human rights attorney.

Comments by the authors

5.1       In a letter dated 29 May 1998, the authors submitted their comments on the observations of the State party.

5.2       The authors reiterate their claim that when bail is denied, the constitutional right of an accused to be presumed innocent is substantially impaired.  Moreover, when an accused is detained before the trial, he lacks adequate time and facilities for the preparation of his defence, which eventually leads to the loss of substantive due process.

5.3       As a general rule, bail may be granted in all criminal proceedings.  The only exception to this rule is when an accused is charged with a capital offence carrying a severe penalty and, most importantly, when the evidence against the accused is strong.  This also requires that any exception to the right to bail must be adequately justified in the decision.

5.4       In the present case, the authors are of the opinion that the justification for the denial of bail is absent from the Order of the Trial Court of 22 October 1993.  Moreover, they suggest that the requirement of strong evidence was not satisfied.  In this regard, the authors note that the prosecution merely showed that they were suspects who might have committed the crime, basing their findings on circumstantial evidence.  The authors consider that, in the absence of an eyewitness who saw the actual murders, circumstantial evidence presented in the case is not sufficient to prove that the authors were the perpetrators of the crime.

5.5       The authors also note that both the Court of Appeals and the Supreme Court have limited their consideration on a procedural aspect of the case, considering that the assessment of facts was at the trial judge's discretion, and have not addressed the issue of the right to bail by assessing the constitutional requirement of strong evidence to deny bail.  The authors have thereafter raised this issue with the Court Administrator, claiming that the latter has the power and duty to call the attention of trial judges when a travesty of justice is manifestly occurring within his jurisdiction.

5.6       In order to enable the Committee to take its decision in the light of all appropriate information, the authors also draw the attention of the Committee to the following latest developments:

Further observations by the State party

6.         The preceding comments were submitted to the State party on 30 October 1998.  On 20 September 2000, another letter was sent to the State party inviting it to submit its observations on the merits of the case.  By a note verbale of 2 October 2000, the State party informed the Committee that it did not wish to make any further comments on the case and referred to its previous submission of 16 March 1998.

Issues and proceedings before the Committee

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 the complaint is admissible under the Optional Protocol to the Covenant.

7.2       Noting that the State party has not raised any objections to the admissibility of the communication, that the authors have exhausted all available domestic remedies and that the same matter is not being examined under another procedure of international investigation or settlement, the Committee declares the communication admissible.

7.3       With regard to the allegation of violation of article 14 (2), on account of the denial of bail, the Committee finds that this denial did not a priori affect the right of the authors to be presumed innocent.  Nevertheless, the Committee is of the opinion that the excessive period of preventive detention, exceeding nine years, does affect the right to be presumed innocent and therefore reveals a violation of article 14 (2).

7.4       With regard to the issues raised under articles 9 (3) and 14 (3) of the Covenant, the Committee notes that, at the time of the submission of the communication, the authors had been detained for a period of more than four years, and had not yet been tried.  The Committee further notes that, at the time of the adoption of the Committee's Views, the authors appear to have been detained without trial for a period in excess of nine years, which would seriously affect the fairness of the trial.  Recalling its General Comment 8 according to which "pre-trial detention should be an exception and as short as possible, and noting that the State party has not provided any explanation justifying such a long delay, the Committee considers that the period of pre-trial detention constitutes in the present case an unreasonable delay.  The Committee therefore

concludes that the facts before it reveal a violation of article 9 (3) of the Covenant.  Furthermore, recalling the State party's obligation to ensure that an accused person be tried without undue delay, the Committee finds that the facts before it also reveal a violation of article 14 (3) (c) of the Covenant.

7.5       With regard to the allegations of ill-treatment suffered by Mr. Julio Astillero, the Committee notes that the allegations are very general in nature, and fail to describe the nature of the acts which were allegedly carried out.  Thus, while the State party did not respond to the Committee's invitation to comment on the authors' submission of 29 May 1998, the Committee is of the opinion that the authors have not sufficiently substantiated that the rights of Mr. Astillero under articles 7 and 10 of the Covenant were violated.

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 (3), 14 (2) and 14 (3) (c) of the Covenant.

9.         In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the authors with an effective remedy, which shall entail adequate compensation for the time they have spent unlawfully in detention.  The State party is also under an obligation to ensure that the authors be tried promptly with all the guarantees set forth in article 14 or, if this is not possible, released.

10.       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 to be issued also in Arabic, Chinese and Russian as part of the present report.]

Note

APPENDIX

Individual opinion of Committee members Ms. Cecilia Medina Quiroga

and Mr. Rafael Rivas Posada (dissenting)

            In this case, the Committee has decided that the Philippines violated, to the detriment of Mr. Cagas, Mr. Butin and Mr. Astillero, articles 9 (3), 14 (2) and 14 (3) of the International Covenant on Civil and Political Rights.  In this respect I concur with the majority vote, but I dissent from that vote in that I believe that the Committee should also have found that the State had violated article 14 (1) of the Covenant.  I explain my reasons below:

            (a)        In the file before the Committee there is no indication that the three authors of the communication have been tried and have been convicted and sentenced to a custodial penalty.  It may therefore be presumed that they have been deprived of their liberty for a period of nine years without a trial and without a conviction, since it was the responsibility of the State to inform the Committee about this matter, and this has not so far been done.  This is a clear violation of articles 9 (3) and 14 (3) of the Covenant.  It should be noted that such a lengthy deprivation of liberty can only be considered as equivalent to the serving of a sentence, in this case without a conviction to back it up.  This, in my opinion, calls into question the State party's compliance with the provisions of article 9 (1) of the Covenant, which prohibits arbitrary detention.

            (b)        The fact that for so many years no trial has been held, apart from constituting a violation of article 14 (3), inevitably jeopardizes the production of evidence.  This vitiates any trial of the authors that may possibly be held.  Thus, for example, the possibility that the judgement may be based on statements by witnesses, made many years after the events occurred, places the accused in a situation of defencelessness, contrary to the guarantees granted by the Covenant.  It is not possible for a trial for homicide or murder, whichever the case may be, held nine or more years after the events to be a "fair trial" in the terms established by article 14 (1).

            (c)        Lastly, through having allowed time to pass without providing the accused with due process as laid down by the Covenant, the State has not only violated article 14 (1) by omission, but has placed itself in a position where it will be impossible for it to comply with the Covenant in the future.  Consequently, and in addition, I cannot agree with paragraph 9 of the Views of the majority.  I consider that, in the present case, it is incumbent on the State to release the detainees immediately.  Obviously, there is a State interest in criminal prosecution, but this prosecution can be carried out only within the limits permitted by international law.  If the organs of criminal justice in a State are ineffective, the State must solve the problem in a manner other than that of infringing the guarantees of the accused.

                                                                        (Signed)  Cecilia Medina Quiroga

                                                                        (Signed)  Rafael Rivas Posada

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

Individual opinion of Committee member Mr. Hipólito Solari Yrigoyen

(dissenting)

            I base my dissenting vote, rejecting the majority vote concerning the violation of Covenant articles 7 and 10 suffered by the author Mr. Julio Astillero, on the following considerations:

            In a communication of 29 May 1998, the authors stated that one of their number, Julio Astillero, had been subjected to torture on two occasions, on 24 and 25 March 1997.  They called the kind of torture which he suffered "alcohol treatment" and named the principal perpetrator of this treatment as Marlon Argarin, who at that time was working as a prison guard at Tinangis Jail - Penal Farm in Pili, Camarines Sur region (Philippines), where they were being held.  They further stated that the guard Argarin later became Chief of Security of the Operations Service and that in the practice of torture he enjoyed the complicity of other guards in the same prison where the events in question occurred.  They also complained that the purpose of the torture inflicted on prisoner Astillero was to force him to become a "State witness".

            In addition, the authors stated that a complaint concerning all these events was made before Judge Martín Badong, the President of the Court of First Instance, Branch 33, Pili, Camarines Sur region, who, according to them, took no action to investigate the complaint.

            Although the authors did not explain what the so-called "alcohol treatment" consisted of, there is no doubt, in view of the complaint's terminology, which is consistent with the text of article 7 of the Covenant, that what was involved was torture or cruel, inhuman or degrading treatment or punishment, to which no one may be subjected.  Since prisoner Astillero was deprived of his liberty and subjected to torture, he was not treated humanely or with the respect inherently due to the human individual.

            The complaint about violation of articles 7 and 10 of the Covenant was fully substantiated by the following details:

            (a)        Dates on which the torture occurred;

            (b)        Place in which torture was perpetrated;

            (c)        Name of the alleged torturer;

            (d)        His job at the time of the torture;

            (e)        The post he later occupied;

            (f)         Existence of other accomplices;

            (g)        Jobs of the alleged accomplices;

            (h)        Specific reference to the complaint lodged about the torture;

            (i)         Name of the judge who received the complaint;

            (j)         Title of the judge; and

            (k)        Precise identification of the court with which the complaint was lodged.

            All these comments by the authors, linked to the complaint of torture, together with other types of comments, were brought to the attention of the State party on 30 October 1998.  The State party remained silent in the face of these comments, a fact which, as the Committee has declared on other occasions, constitutes a lack of cooperation through non-compliance with its obligation under article 4 (2) of the Optional Protocol to submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

            The State party's lack of cooperation was, moreover, repeated when, in reply to a further request by the Committee of 20 September 2000, in a note verbale it again stated that it wished to make no further comment on the question, referring to its initial communication of 16 March 1998.  The observations made by the State party in that communication in no way clarify the acts of torture complained of, since these acts were notified to the Committee after the submission of the State's observations.

            Consequently, the Committee should take the authors' complaints into account and, on the basis of all the elements before it, consider that there has been a violation of articles 7 and 10 of the Covenant to the detriment of the prisoner Julio Astillero.

                                                                        (Signed)  Hipólito Solari Yrigoyen

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

Q.  Communication No. 792/1998, Higginson v. Jamaica

                                     (Views adopted on 28 March 2002, seventy-fourth session)*

Submitted by:                                       Mr. Malcolm Higginson

Alleged victim:                          The author

State party:                                           Jamaica

Date of communication:             20 January 1997 (initial submission)

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

            Meeting on 28 March 2002,

            Having concluded its consideration of Communication No. 792/1998, submitted to the Human Rights Committee by Mr. Malcolm Higginson 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, initial letter dated 20 January 1997, and subsequent letters dated May 1997 and 3 July 1997, is Malcolm Higginson, a Jamaican citizen, born on 20 March 1974, at the time of submission an inmate at the General Penitentiary Kingston, Jamaica.  At present he is under detention at St. Catherine Adult Correction Centre.  He claims that he is a victim of violations by Jamaica1 of articles 2, 7 and 14 of the International Covenant on Civil and Political Rights.  He is not represented by counsel.

The facts as submitted by the author

2.1       On 19 May 1995, the author was convicted of illegal possession of a firearm, rape and robbery with aggravation by the High Court Division Gun Court, Kingston, Jamaica, and sentenced to respectively 5, 10 and 7 years' imprisonment with hard labour, to run concurrently, and in addition to receive 6 strokes of the tamarind switch.

2.2       As it appears from the author's quotations from the Court hearing, on 19 May 1995, the trial against the author lasted for five days.  During the trial the victim of the crime for which the author was charged testified that on 25 July 1993 at about 2.30 p.m. she went to see her boyfriend who worked at a funeral parlour in St. Andrew.  On her way to the funeral parlour, she did not find her boyfriend but the author who was working for the same company.  They talked for a few minutes, before the author's girlfriend came and the author and his girlfriend left together.  After the author had left, a group of men, who were complete strangers to the victim and armed with a gun, surrounded her and took her to a room behind the funeral parlour where all of them raped her.  According to the victim, the author entered the room some time later. 

He was also carrying a gun.  The victim asked the author to rescue her.  According to the victim, the author joined the group and raped her.  The group of men also stole her watch and $200.  Several hours after being brought to the funeral parlour, the victim was released and went home.  After nine days she complained to the police and provided them with the author's name. 

On 29 October 1993, the author was arrested and charged with the crime.  No other persons appear to have been charged in connection to the crime.

2.3       The author denied the allegation of gang rape and possession of a gun, whereas he admitted sexual intercourse with the woman on the same day, with her consent.  The author stated that on the very same day, he had met the complainant and had talked with her.  She came to his house, because she had trouble with her boyfriend, and it was she who took the initiative for intercourse.

 

2.4       During the trial, the case rested on the identification evidence of the victim.  The victim stated that she heard somebody calling the author "Malcolm" during the rape, and thus she gave his name and description to the police.  All the other men were strangers to her.  The author however, submitted that when they were talking, they introduced themselves, and that's why she knew his name.

2.5       The author filed an application for leave to appeal on the grounds of unfair trial.2  One of the grounds for appeal was that during the cross-examination of the victim with respect to the identification of the author, the judge stopped the counsel from continuing the cross-examination of the victim.  The Court of Appeal rejected the application for leave to appeal.

The complaint

3.1       The author raises issues under article 14.  He claims that the trial against him was unfair, since the judge stopped his counsel from continuing the cross-examination of the complainant and the conviction was based on the complainant's statements only.  He further contends that the sentence of whipping entailed a violation of article 7 of the Covenant, because whipping

constitutes cruel, inhuman and degrading punishment.  According to the author, the Jamaican Constitution section 26 (8) by allowing the constitutionality of laws in force prior to the Constitution allows the imposition of corporal punishment.  He claims that relying on statutes that prescribe such punishment violates article 2 of the Covenant.  The State party should, according to the author, repeal such laws to bring domestic legislation into conformity with the Covenant to ensure the protection of the rights guaranteed in the Covenant.

3.2       The author also states that with the rejection of the application for leave to appeal, all domestic remedies have been exhausted.

Examination of admissibility and merits

4.1       The communication with its accompanying documents was transmitted to the State party on 14 January 1998.  The State party has not responded to the Committee's request, under rule 91 of the rules of procedure, to submit information and observations in respect of the admissibility and the merits of the communication, nor to its request to the State party not to carry out the sentence of whipping against the author, pursuant to rule 86.  Reminders of the above requests were addressed to the State party on 4 October 2000 and on 24 July 2001.  Only on 24 May 2001, the State party notified the Committee that investigation of the allegations was being undertaken.  The Committee recalls that it is implicit in the Optional Protocol that the State party make available to the Committee all information at its disposal in due course, and regrets the lack of cooperation by the State party in the present case.  In the absence of information 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 any claims contained in a communication, the Human Rights Committee must, in accordance with article 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

4.3       The Committee has ascertained that the same matter is not being examined under another procedure of international investigation settlement.

4.4       With respect to exhaustion of domestic remedies, the Committee notes that the author has argued that he unsuccessfully sought leave to appeal, and that no further domestic remedy is available to him.  The State party has not claimed that other domestic remedies are still available.  The Committee considers therefore that it is not precluded by article 5, paragraph 2 (b) of the Optional Protocol from examining the communication.

4.5       Although the author's submission raises issues about the fairness of the trial under article 14, and even in the absence of any response by the State party, despite its promise to investigate the matter, the Committee considers that the author has not sufficiently substantiated for purposes of admissibility his allegations of a violation of article 14 of the Covenant.  Consequently, this part of the communication is inadmissible under article 2 of the Optional Protocol.

4.6       The remaining part of the communication, i.e., the author's claim under article 7 of the Covenant, is admissible.  The author has claimed that the use of the tamarind switch constitutes cruel, inhuman and degrading punishment, and that the imposition of the sentence violated his rights under article 7 of the Covenant.  The State party has not contested the claim.  Irrespective of the nature of the crime that is to be punished or the permissibility of corporal punishment under domestic law, it is the consistent opinion of the Committee that corporal punishment constitutes cruel, inhuman and degrading treatment or punishment contrary to article 7 of the Covenant.  The Committee finds that the imposition or the execution of a sentence of whipping with the tamarind switch constitutes a violation of the author's rights under article 7.

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

6.         Under article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy, including refraining from carrying out the sentence of whipping upon the author or providing appropriate compensation if the sentence has been carried out.  The State party should ensure that similar violations do not occur in the future by repealing the legislative provisions that allow for corporal punishment.

7.         On becoming a State party to the Optional Protocol, Jamaica recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not.  This case was submitted for consideration before Jamaica's denunciation of the Optional Protocol became effective on 23 January 1998; in accordance with article 12 (2) of the Optional Protocol the communication is subject to the continued application of the Optional Protocol.  Pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant.  The Committee wishes to receive from the State party, within 90 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 to be issued also in Arabic, Chinese and Russian as part of the present report.]

Notes

                            R.   Communication No. 794/1998, Jalloh v. The Netherlands

                                    (Views adopted on 23 March 2002, seventy-fourth session)*

Submitted by:                                       Mr. Samba Jalloh (represented by counsel,

                                                            Mr. Pieter Bouman)

Alleged victim:                          The author

State party:                                           The Netherlands

Decision on admissibility:                       6 July 1999

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

            Meeting on 26 March 2002,

            Having concluded its consideration of Communication No. 794/1998, submitted to the Human Rights Committee by Mr. Samba Jalloh under the Optional Protocol to the International Covenant on Civil and Political Rights,

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

            Adopts the following:

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

1.         The author of the communication is Mr. Samba Jalloh.  He claims to be a victim of a violation by the Netherlands of articles 9 and 24 of the Covenant.  The author is represented by counsel.

The facts as presented

2.1       The author states that he is a national of the Ivory Coast and was born in 1979.  He arrived in the Netherlands on or around 3 September 1995.  The author had no identification documents in his possession on arrival, but on 15 October 1995 the immigration authorities recorded that he was 15 years of age.  Earlier on 4 September 1995, he applied for asylum to the State Secretary for Justice.  From this date until June 1996, the author was under the responsibility of the guardianship agency, which is appointed as the legal guardian of all unaccompanied minor asylum-seekers and aliens.  The author was received and accommodated at an open facility.  On 12 December 1995, the author's application was refused. 

On 29 January 1996, he appealed this decision.  On 12 June 1996, his appeal was dismissed. 

2.2       In August 1996, the author absconded from his reception facility and went into hiding out of fear of an immediate deportation.  His lawyer advised him to apply again for refugee status, in order to bring an end to his illegal status and to regain access to refugee accommodation. 

On 4 September 1996, the author made a second application for refugee status with the State Secretary for Justice.  On 12 September 1996, following an interview with the Aliens Department, his detention was ordered for the following reasons: because he did not have a valid permit, because he did not possess a document proving his identity, because he did not have any financial means to live nor to return to his home country, and because of a serious suspicion that he would fail to cooperate with his removal.  On 17 September 1996, the author's second application for refugee status was dismissed. 

2.3       On 24 September 1996, the author's request for a ruling that he was being unlawfully detained was rejected by the District Court of 's-Hertogenbosch, though the issue of his

status as a minor was allegedly raised by counsel.  From the judgement of the Court it appears that the author was brought before the representative of the Ivory Coast in Brussels to ascertain his identity, but with negative result.  It also appears from the judgement that he was then

presented to the Consulates of Sierra Leone and Mali, with equally negative results. 

On 8 November 1996, counsel filed a request to have the author's detention reviewed once more.  On 2 December 1996, the same Court rejected the author's second request partly because a further identity investigation was being prepared to determine his nationality.  However,

on 9 January 1997, the State Secretary for Justice terminated the author's detention, as at that point there was no realistic prospect of expelling him.  Notice was then served on the author that he must leave the Netherlands immediately.

2.4       On 5 February 1997, the author appealed against the refusal to grant him refugee status on the basis of his second application.  The same Court, on 23 April 1997, decided to reopen proceedings to allow the author to undergo a medical examination.  This examination took place in May 1997.  On 4 June 1997, the report of a psychological examination and the results of X‑ray tests to determine the author's age were made available to the Court.  As a result, the Court declared the author's appeal well-founded and the State Secretary for Justice granted him a residence permit "admitted as an unaccompanied minor asylum-seeker" with effect from the date of his second asylum application.

The complaint

3.1       In his initial submission, counsel claimed that the author's detention under the Aliens Act was in violation of articles 9 and 24 of the Covenant.  Counsel argued that the detention was arbitrary, because it is unreasonable to expect that the author would try to escape deportation, having voluntarily reported to the police on 4 September 1996 and because he was a minor.  He further claimed that according to the State party's policy, minors who claim refugee status should be given a residence permit if they cannot be returned to their home country within six months.

3.2       In a letter, dated 16 December 1997, counsel informed the Committee that his client had obtained a residence permit, but that he still wishes to maintain the communication before the Committee in light of the author's unlawful three and half month detention.

The State party's observations

4.1       On the merits and with respect to the law, the State party explains that the detention of illegal immigrants is covered by section 26 of the Aliens Act.  The State party underlines that detention of aliens is not a punishment but a measure aimed at facilitating expulsion and is limited to cases where the detention is necessary and effective.  The courts can review the detention in the interests of the alien.  The State party explains that unaccompanied minor aliens may also be detained in custody under the same section of the Aliens Act.  However, the detention of minors is applied with great restraint.

4.2       In respect of the author's claim under article 9, the State party explains that the author was detained for three and half months under section 26 of the Aliens Act, because he had no valid residence permit, no identification documents, nor sufficient means of support, because there were serious grounds for suspicion that he would evade expulsion, and because the authorities had the impression that he was abusing the asylum procedures.  Upon review by the Court, the Court held, on 24 September 1996, that the detention was lawful, that the author had evaded expulsion before, that he had not told the truth about his identity, and that there was sufficient prospect of expulsion in view of the preparation made by the State for an identity investigation by an expert.

4.3       The State party is of the opinion that its authorities acted with due care and not arbitrarily in relation to the author's detention.  The purpose of the detention was under constant review by the implementing authorities and examined by an independent tribunal.  The State party adds that at the time it was not possible to determine whether the author was under age. 

4.4       With regard to the author's claim under article 24, the State party acknowledges that it has particular responsibilities in relation to minors.  It explains that it has devised a special policy on unaccompanied minor asylum-seekers.  Unaccompanied minor asylum-seekers are eligible for a residence permit subject to the restriction "admitted as an unaccompanied minor asylum‑seeker".  Such a permit is granted if the minor has applied for asylum but does not qualify for admission as such.  In those cases, a residence permit is issued if it is established within six months of the submission of the asylum application that there is no suitable care provision in the country of origin.  In assessing the first asylum application, the State Secretary for Justice considered whether the author qualified for residence status as an unaccompanied minor and concluded that he did not, as it could not be established that he was telling the truth, given the many conflicting statements the author had made and the doubt about his identity.  The Court, in reviewing the denial of the author's first asylum request, considered that there were insufficient elements to conclude that the author was under age.  In the second proceedings, however, the Court decided that the author should undergo a medical examination, in the light of a new issue of mental underdevelopment raised by him.  On the basis of the medical and psychological information then received, the author was granted a residence permit.

Counsel's comments

5.1       In his comments, counsel notes that the author suffers from "serious mental underdevelopment", and that although the issue of mental underdevelopment was raised by counsel, it was not taken into account by the authorities when the author was detained.  Only after intervention by the court in April 1997, were the author's problems finally recognized and he was granted a residence permit.  Counsel explains that the complaint focuses on the fact that the authorities failed to recognize the author's lack of mental development and that he functions on the level of a five year old.  In the specific circumstances of the author's case, his detention was not justified and constituted intimidation.  According to counsel, the fact that the court reviewed the detention does not diminish the State party's responsibility. 

5.2       On refusing to grant the author asylum, the court on two occasions failed to recognize that the author was mentally undeveloped and that it was for this reason that he could not explain his reasons for seeking asylum.  The courts had interpreted his inability to express himself properly as an issue of credibility rather than incapacity.

State party's further submission

6.         As to the inadequate development of the author's mental faculties, the State party submits that, on the two occasions when the Court was requested to determine the lawfulness of the author's detention in September and November of 1996 respectively, it was clear that he had never received any schooling and that his vocabulary and frame of reference were limited.  However, the Court then did not consider those facts as sufficient ground for terminating his detention.  Subsequently, in April 1997, the same Court decided to reopen proceedings to consider the author's appeal against the refusal to grant him refugee status and allowed the author to undergo a medical examination.  It was only after the report of the psychological examination showed the author's mental age as that of a child between four and seven years that the Court was able to detect "mental underdevelopment" of the author.  In consequence, the Court declared the author's appeal well-founded.

Issues and proceedings before the Committee

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       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 international procedure of international investigation or settlement.

7.3       As to the requirement under article 5, paragraph 2 (b) of the Optional Protocol, the Committee notes that the State party has not submitted that the author failed to exhaust domestic remedies.  As the State party does not raise any objections to the admissibility of the author's claims, the Committee declares the communication admissible and proceeds to the examination of the merits of the case.

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       With regard to the author's claim that his rights under article 9 have been violated, the Committee notes that his detention was lawful under Dutch law, section 26 of the Aliens Act.  The Committee further notes that the author had his detention reviewed by the courts on two occasions, once 12 days after the beginning of his detention, and again 2 months later.  On both occasions, the Court found that the author's continued detention was lawful, because he had evaded expulsion before, because there were doubts as to his identity, and because there were reasonable prospects for expulsion, as an identity investigation was still ongoing.  The question remains therefore as to whether his detention was arbitrary.  Recalling its previous jurisprudence the Committee notes that "arbitrariness" must be interpreted more broadly than "against the law" to include elements of unreasonableness.  Considering the author's flight

from the open facility at which he was accommodated from the time of his arrival for

around 11 months, the Committee considers that it was not unreasonable to have detained the author for a limited time until the administrative procedure relating to his case was completed.  Once a reasonable prospect of expelling him no longer existed his detention was terminated. 

In the circumstances, the Committee finds that the author's detention was not arbitrary and thus not in violation of article 9 of the Covenant. 

8.3       The author has raised a further claim against his detention insofar as it violated the State party's obligation under article 24 of the Covenant to provide special measures of protection to him as a minor.  In this connection, while the author's counsel alleges that the issue of "mental underdevelopment" was raised before the State party's authorities, he does not specify the authorities before which the issue was raised.  Moreover, the judgement of the Court concerning the lawfulness of the author's detention does not reveal that the issue was actually raised in Court during the proceedings.  The State party has argued that there were doubts about the author's age, that it was not certain that he was a minor until the Court's judgement following the medical examination of 4 June 1997, and that in any event article 26 of the Aliens Act does not preclude the detention of minors.  The Committee notes that apart from a statement that the author was detained, he does not provide any information on the type of detention facility in which he was accommodated, or his particular conditions of detention.  In this respect, the Committee notes the State party's explanation that the detention of minors is applied with great restraint.  The Committee further notes that the detention of a minor is not per se a violation of article 24 of the Covenant.  In the circumstances of this case, where there were doubts as to the author's identity, where he had attempted to evade expulsion before, where there were reasonable prospects for expulsion, and where an identity investigation was still ongoing, the Committee concludes that the author has failed to substantiate his claim that his detention for three and a half months entailed a failure by the State party to grant him such measures of protection as are required by his status as a minor.  The Committee therefore finds that the facts before it do not disclose a violation of article 24 (1) of the Covenant.

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

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

Notes

                               S.    Communication No. 802/1998, Rogerson v. Australia

                                      (Views adopted on 3 April 2002, seventy-fourth session)*

Submitted by:                                       Mr. Andrew Rogerson (represented by

                                                            Mr. John McCormack, barrister and solicitor in

                                                            Darwin, Australia)

Alleged victim:                                      The author

State party:                                           Australia

Date of communication:                         20 April 1996 (initial submission)

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

            Meeting on 3 April 2002,

            Having concluded its consideration of Communication No. 802/1998, submitted to the Human Rights Committee by Mr. Andrew Rogerson 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

1.1       The author of the communication is Mr. Andrew Rogerson, an Australian citizen, currently residing in Willerby, United Kingdom.  He claims to be the victim of violations by Australia of articles 2, paragraph 3 (a), (b); 14, paragraphs 1, 3 (a), (b), (c), (g) and 5; 15, paragraph 1; 17, paragraph 1; and 26 of the International Covenant on Civil and Political Rights.  He is represented by counsel.

1.2       The Covenant entered into force for the State party on 13 November 1980 and the Optional Protocol on 25 December 1991.  The reservation entered by the State party upon its ratification of the Covenant has no relevance for the present case.

Facts as submitted by the author

2.1       The author was a barrister and solicitor of the Northern Territory Supreme Court and director of Lofta Pty. Ltd., a law firm, operating under the name of Loftus and Cameron.  In July 1991, one Mr. Tchia, director of Tchia Nominees Pty. Ltd. and Kykym Pty. Ltd., instructed the author to assist him with certain aspects of development of land in Darwin.  On 19 August 1992, Mr. Tchia cancelled the retainer and engaged other solicitors to do the same work.  The author tried to resurrect the Loftus and Cameron retainer.  On 24 August 1992, the author lodged a caveat on the land and threatened legal action for breach of contract.  Over some weeks, the author had been attempting to meet with Mr. Tchia to discuss their relationship.  The author, finally, succeeded to set up a meeting for 1 September 1992 at 5.00 p.m.  On the same day at 11.34 a.m., the Northern Territory Supreme Court had heard an ex parte application by Mr. Tchia and, finally, granted an injunction to restrain the author from contacting or seeking to contact Mr. Tchia or any of the two companies, except through particular solicitors named in

the order. 

2.2       On 1 September at 4.50 p.m., Mr. Tchia's solicitors tried to serve the author, inter alia, the injunction and other documents relating to the originating motion.  The author did not read the documents and immediately sent them back to the solicitors.  The author knew that the documents pertained to a dispute between himself and Mr. Tchia, whom he was due to meet.  The author decided not to read the documents but await Mr. Tchia's arrival; Mr. Tchia did not keep the appointment.  Later the same day, the author met with one Mr. Riley, a business associate of Loftus and Cameron, and set out a settlement proposal to convey to Mr. Tchia. 

On 2 September at 10.30 a.m., Mr. Tchia's solicitors attempted again to serve the author the injunction at his office.  However, the main door into the reception area was locked upon order of the author to prevent service by Mr. Tchia's solicitors.  A woman at the front door stated that the author was not available and that she could not allow entry into the office.  At about the same time, Mr. Riley met with Mr. Tchia; the latter rejected the author's settlement proposal and mentioned the injunction.  On 2 September at 11.13 a.m., Mr. Tchia's solicitors tried to send the documents to the author by facsimile transmission.  During the transmission the facsimile stopped transmitting and connection was lost. 

2.3       From 2 to 4 and on 9 September 1992, the Northern Territory Supreme Court heard an action for contempt of court against the author.  Since 3 September, the author was represented by counsel.  On 9 October 1992, the Court delivered its decision finding the author guilty of contempt of court.  The Court fined the author a sum of $5,000 and ordered him to pay the plaintiffs' costs on a solicitor and own client basis.  Upon appeal of the author, heard from 22 to 24 March 1993, the Northern Territory Court of Appeals, on 17 March 1995, upheld the Supreme Court decision but quashed the fine and remitted this matter to the Supreme Court for reconsideration.  On 22 June 1995, the High Court of Australia refused Special Leave to Appeal. 

2.4       On 12 October 1992, the Law Society of the Northern Territory cancelled the author's practising certificate for an indefinite period.  

2.5       On 6 May 1997, while the communication was already pending with the Committee,

the Law Society of the Northern Territory commenced procedures to remove the author's name from the Roll of Legal Practitioners.  The Supreme Court held hearings in the case on 4 December 1998 and 16 August 1999, and decided to strike the author off the Roll of Legal Practitioners.  On 24 November 2000, the High Court of Australia refused the author's application for Special Leave to Appeal.

The complaint

3.1       The author claims that even though some of the violations of his rights had been ameliorated upon appeal, there still remains for him a destroyed career, broken health and de facto bankruptcy caused by an abuse of power by the judge of the Northern Territory Supreme Court in the action for contempt of court and the actions by the Law Society.  The author submits that at the time of the trial he suffered from manic-depressive disorder and was unable to properly understand what was going on.  The author submits that he was treated for this disease since November 1989.

3.2       With regard to the procedure at the Northern Territory Supreme Court hearing on contempt of court, the author contends that he was brought before the judge with less than one‑hour notice, unrepresented.  The author claims that the judge adopted an inquisitorial approach and assumed the role of prosecutor.  The author claims that the judge violated articles 2, paragraph 2; 14, paragraphs 1 and 3 (a), (b), (g); 15, paragraph 1; 17; and 26 of the Covenant by his different actions during the trial.  The author argues that the judge allowed the proceedings to continue, notwithstanding that they were in respect of an ex parte injunction, the sealed copy of which did not contain the required warning of imprisonment for failing to comply; that the author did not have proper notice of the terms of the order; that the author had not been served with a copy of the order; that in respect of the alleged contempt, it had never been particularized in a summons; that the author's attendance at court had been effected by means of a misleading fax.  The author submits further that, during the trial, the judge waived the requirement for affidavit evidence so that the author had no advance warning of what his accusers were to say against him; the judge refused to allow adjournments, to enable the author's case to be properly prepared and, later in the proceedings, allow his counsel to take notice of what evidence had been given the previous day; the judge proceeded at an unseemly speed to hear the matter and produce a rapid decision convicting the author without hearing argument on the penalty and costs, which is an impossibility in law, as the proceedings should have been regarded as merely a form of execution in a civil action; and the judge made gratuitous and unfounded remarks on his fitness to practise law.  Finally, the author claims that the Supreme Court failed to give effect to the decision of the Court of Appeals to reconsider the fine.

3.3       As to the procedure at the Northern Territory Court of Appeals, the author claims violations of articles 2, paragraph 1; 14, paragraph 1, 3 (c) and 5; and 26 of the Covenant.  The author submits that it took the Court almost two years to hand down a decision.  The author

further points out that the decision was delivered by a two to one majority and that one of the majority judges refused a request to recuse himself on the grounds of bias against the author.  The author submits that this judge knew him well and had, in the past, indicated opinions adverse to the author's interests. 

3.4       As to the procedure at the High Court of Australia, the author claims violations of articles 2, paragraph 2 and 3; 14, paragraph 1 and 5; and 26 of the Covenant.  The author argues that the restrictive approach of the Court to the granting of Special Leave does not appear to provide him with an effective remedy against injustice, as required by Australia's obligations under the Covenant.  The author submits that the Solicitor General of the Northern Territory initially intended to support the application of the author; he later decided not to appear at the hearing after he had spoken privately to the Chief Justice of the High Court.  The author claims that he had been prejudiced by the possible connivance between the most senior judge in Australia and the most senior law officer in the Northern Territory.  The author is concerned by a comment by the Court that he, as a lawyer aware of the proceedings, did not suffer the injustice that a layperson may have done.  The author claims that he is entitled to expect a fair trial regardless of his profession. 

3.5       As to the procedure at the Law Society, the author claims violations of articles 14, paragraph 1; and 17 of the Covenant.  The author argues that the Law Society is exercising quasi-governmental and judicial functions and is, therefore, bound to operate with due regard to human rights.  The author submits that the Society proceeded without giving him a proper opportunity to be heard and without making any independent investigation that would have revealed the author's serious illness, but accepting the findings of the Supreme Court.  The author argues that it is significant that the members of the Committee of the Law Society sitting in the small town of Darwin are, in large part, business competitors of the author and government lawyers with whom he clashed in the past.  Furthermore, the author submits that the Society was bound to stipulate a period of time for which the Practicing Certificate would be withdrawn.  The author claims that the procedures to strike him off the Roll of Practitioners are tantamount to a further, separate violation.

State party's observations on admissibility and merits

4.1       In a submission dated May 2000, the State party made its observations on the admissibility and merits of the communication.  The State party submits that the author's claims are unsubstantiated for a variety of reasons summarized below. 

4.2       With regard to the procedure before the Northern Territory Supreme Court, the State party argues that the author has not submitted evidence of partiality of the judge and has merely made generalized allegations concerning the conduct and result of the proceeding.  The State party argues further that the fact that the author or his counsel did not raise the question of bias in the course of the proceedings is prima facie evidence that the conduct was acceptable in the circumstances.  The State party contends that the author has failed to indicate the grounds on which the court could make an alternative finding on the question of his alleged contempt. 

The State party submits that the exercise of judicial function by the judge in the hearing on the

ex parte order did not go to the matters at issue in the later proceedings regarding the contempt of court.  Finally, since the author has not applied for a rehearing after the decision of the Court of Appeals, the penalty remains set aside. 

4.3       The State party accepts that the court proceedings subject to this communication relate to criminal contempt and fall within the purview of article 14, paragraph 3, of the Covenant.  The State party submits that, in fact, the author was aware of the factual and legal basis of the charge against him and had sufficient information to be able to defend himself properly.  At no time did the author appear to question the speed of the proceedings on the basis that he was unprepared and needed further time and facilities to prepare for the proceedings.  The State party refers to the Committee's decision in Karttunen v. Finland and submits that any deficiency of the first instance procedure was cured by the proceedings before the Appeals Court.  With regard to the alleged violation of article 14, paragraph 3 (g), of the Covenant, the State party submits that the judge encouraged the author to provide an explanation for the events after the issuance of the ex parte order, rather than to testify against himself.  At all times, the author had the option to remain silent.  With regard to article 15, paragraph 1, the State party submits that on the factual basis established by the Supreme Court, i.e. wilful disobedience of the court order, a conviction of criminal contempt was justified.  At all relevant times, the offence of criminal contempt existed in the Northern Territory.  With regard to article 17, paragraph 1