A/49/40

United Nations

Report of the

Human Rights Committee

Volume II

General Assembly

Official Records • Forty-ninth Session

Supplement No. 40 (A/49/40)

A/49/40

Report of the

Human Rights Committee

Volume II

General Assembly

Official Records • Forty-ninth Session

Supplement No. 40 (A/49/40)

United Nations • New York, 1994

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.

        The present document contains annexes IX and X of the report of the Human Rights Committee. Chapters I to VIII and annexes I to VIII, XI and XII are contained in volume I.

ISSN 0255-2353

[Original: English]

[21 September 1994]

CONTENTS

Chapter

    I.       ORGANIZATIONAL AND OTHER MATTERS

             A.     States parties to the Covenant

             B.     Sessions and agenda

             C.     Membership and attendance

             D.     Solemn declaration

             E.      Working groups

             F.      Other matters

             G.     Staff resources

             H.     Publicity for the work of the Committee

             I.       Adoption of the report

  II.        ACTION BY THE GENERAL ASSEMBLY AT ITS FORTY-EIGHTH SESSION AND BY THE COMMISSION ON HUMAN RIGHTS AT ITS FIFTIETH SESSION

III.         METHODS OF WORK OF THE COMMITTEE UNDER ARTICLE 40 OF THE COVENANT: OVERVIEW OF PRESENT WORKING METHODS

             A.     List of issues to be taken up in connection with the consideration of periodic reports of States parties

             B.     Comments of the Committee at the end of the consideration of reports of States parties

             C.     The Committee's procedures in dealing with emergency situations

             D.     Implementation of the Covenant in new States that constituted parts of former States parties to the Covenant

             E.      General comments

             F.      Overdue reports

             G.     Format of the annual report of the Committee under article 45 of the Covenant

  IV.      SUBMISSION OF REPORTS BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT

             A.     Reports submitted by States parties under article 40 of the Covenant during the period under review

CONTENTS (continued)

Chapter

             B.     Special decisions by the Human Rights Committee concerning reports of particular States

    V.     STATES THAT HAVE NOT COMPLIED WITH THEIR OBLIGATIONS UNDER ARTICLE 40

  VI.      CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT

             A.     Iceland

             B.     Norway

             C.     Japan

             D.     Malta

             E.      Romania

             F.      Costa Rica

             G.     Mexico

             H.     Cameroon

             I.       El Salvador

             J.      Libyan Arab Jamahiriya

             K.     Jordan

             L.      Togo

             M.    Italy

             N.     Azerbaijan

             O.     Cyprus

             P.      Slovenia

             Q.     Burundi

VII.       GENERAL COMMENTS OF THE COMMITTEE

VIII.      CONSIDERATION OF COMMUNICATIONS UNDER THE OPTIONAL PROTOCOL

             A.     Progress of work

             B.     Growth of the Committee's case-load under the Optional Protocol

             C.     New approaches to examining communications under the Optional Protocol

CONTENTS (continued)

Chapter

             D.     Individual opinions

             E.      Issues considered by the Committee

             F.      Remedies called for under the Committee's views

             G.     Follow-up activities

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 29 JULY 1994

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

             B.     States parties to the First Optional Protocol

             C.     States which have made the declaration under article 41 of the Covenant

             D.     Status of the Second Optional Protocol aiming at the abolition of the death penalty

  II.        MEMBERSHIP AND OFFICERS OF THE HUMAN RIGHTS COMMITTEE, 1993-1994

             A.     Membership

             B.     Officers

III.         SUBMISSION OF REPORTS AND ADDITIONAL INFORMATION BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT DURING THE PERIOD UNDER REVIEW

 IV.         STATUS OF REPORTS CONSIDERED DURING THE PERIOD UNDER REVIEW AND OF REPORTS STILL PENDING BEFORE THE COMMITTEE

    V.     GENERAL COMMENTS UNDER ARTICLE 40, PARAGRAPH 4, OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

             General comment No. 23 (50) (art. 27)

  VI.      AMENDED RULES OF PROCEDURE

VII.       LETTER FROM THE CHAIRMAN OF THE COMMITTEE CONCERNING AN OVERDUE REPORT

VIII.      LISTS OF STATES PARTIES' DELEGATIONS THAT PARTICIPATED IN THE CONSIDERATION OF THEIR RESPECTIVE REPORTS BY THE HUMAN RIGHTS COMMITTEE AT ITS FORTY-NINTH, FIFTIETH AND FIFTY-FIRST SESSIONS

CONTENTS (continued)

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 ...............................................                                                                                1

             A.     Communication No. 321/1988, Maurice Thomas v. Jamaica

                       (views adopted on 19 October 1993, forty-ninth session) ........                                                                1

             B.     Communication No. 322/1988, Hugo Rodríguez v. Uruguay

                       (views adopted on 19 July 1994, fifty-first session) ...........                                                                      5

             C.     Communication No. 328/1988, Roberto Zelaya Blanco v.

                       Nicaragua (views adopted on 20 July 1994, fifty-first session) .                                                            12

             D.     Communication No. 330/1988, Albert Berry v. Jamaica

                       (views adopted on 7 April 1994, fiftieth session) ..............                                                                     20

             E.      Communication No. 332/1988, Devon Allen v. Jamaica

                       (views adopted on 31 March 1994, fiftieth session) .............                                                                  31

             F.      Communication No. 333/1988, Lenford Hamilton v. Jamaica

                       (views adopted on 23 March 1994, fiftieth session) .............                                                                  37

             G.     Communication No. 352/1989, Dennis Douglas, Errol Gentles and

                       Lorenzo Kerr v. Jamaica (views adopted on 19 October 1993,

                       forty-ninth session) ...........................................                                                                                      42

             H.     Communication No. 353/1988, Lloyd Grant v. Jamaica

                       (views adopted on 31 March 1994, fiftieth session) .............                                                                  50

             I.       Communication No. 355/1989, George Winston Reid v. Jamaica

                       (views adopted on 8 July 1994, fifty-first session) ............                                                                     59

             J.      Communication No. 366/1989, Isidore Kanana v. Zaire

                       (views adopted on 2 November 1993, forty-ninth session) ........                                                            65

             K.     Communication No. 375/1989, Glenmore Compass v. Jamaica

                       (views adopted on 19 October 1993, forty-ninth session) ........                                                              68

             L.      Communication No. 377/1989, Anthony Currie v. Jamaica

                       (views adopted on 29 March 1994, fiftieth session) .............                                                                  73

             M.    Communication No. 407/1990, Dwayne Hylton v. Jamaica

                       (views adopted on 8 July 1994, fifty-first session) ............                                                                     79

             N.     Communication No. 412/1990, Auli Kivenmaa v. Finland

                       (views adopted on 31 March 1994, fiftieth session) .............                                                                  85

                       Appendix .......................................................                                                                                          92

             O.     Communication No. 414/1990, Primo J. Mika Miha v. Equatorial

                       Guinea (views adopted on 8 July 1994, fifty-first session) .....                                                               96

CONTENTS (continued)

Page

             P.      Communication No. 417/1990, Manuel Balaguer Santacana v. Spain

                       (views adopted on 15 July 1994, fifty-first session) ...........                                                               101

                       Appendix .......................................................                                                                                     113

             Q.     Communication No. 418/1990, C. H. J. Cavalcanti Araujo-Jongen

                       v. the Netherlands (views adopted on 22 October 1993, forty-

                       ninth session) .................................................                                                                                     114

             R.     Communication No. 425/1990, A. M. M. Doesburd Lannooij Neefs

                       v. the Netherlands (views adopted on 15 July 1994, fifty-first

                       session) .......................................................                                                                                        120

             S.      Communication No. 428/1990, François Bozize v. the Central

                       African Republic (views adopted on 7 April 1994, fiftieth

                       session) .......................................................                                                                                        124

             T.      Communication No. 440/1990, Youssef El-Megreisi v. the Libyan

                       Arab Jamahiriya (views adopted on 23 March 1994, fiftieth

                       session) .......................................................                                                                                        128

             U.     Communication No. 441/1990, Robert Casanovas v. France

                       (views adopted on 19 July 1994, fifty-first session) ...........                                                               131

             V.     Communication No. 445/1991, Lyden Champagnie, Delroy Palmer

                       and Oswald Chisholm v. Jamaica (views adopted on 18 July 1994,

                       fifty-first session) ...........................................                                                                                    136

             W.    Communication No. 449/1991, Barbarín Mojica v. the Dominican

                       Republic (views adopted on 15 July 1994, fifty-first session) ..                                                         142

             X.     Communication No. 451/1991, Barry Stephen Harward v. Norway

                       (views adopted on 15 July 1994, fifty-first session) ...........                                                               146

             Y.     Communication No. 455/1991, Allan Singer v. Canada

                       (views adopted on 26 July 1994, fifty-first session) ...........                                                               155

             Z.      Communication No. 456/1991, Ismet Celepli v. Sweden

                       (views adopted on 18 July 1994, fifty-first session) ...........                                                               165

            AA.     Communication No. 458/1991, Albert Womah Mukong v. Cameroon

                        (views adopted on 21 July 1994, fifty-first session) ...........                                                               171

            BB.     Communication No. 468/1991, Angel N. Oló Bahamonde v.

                        Equatorial Guinea (views adopted on 20 October 1993,

                        forty-ninth session) ...........................................                                                                                  183

            CC.     Communication No. 469/1991, Charles Chitat Ng v. Canada

                        (views adopted on 5 November 1993, forty-ninth session) ........                                                       189

                        Appendix .......................................................                                                                                     208

CONTENTS (continued)

Page

           DD.     Communication No. 484/1991, H. J. Pepels v. the Netherlands

                       (views adopted on 15 July 1994, fifty-first session) ...........                                                                 221

           EE.      Communication No. 488/1992, Nicholas Toonen v. Australia

                       (views adopted on 31 March 1994, fiftieth session) .............                                                               226

                       Appendix .......................................................                                                                                       236

           FF.      Communication No. 492/1992, Lauri Peltonen v. Finland

                       (views adopted on 21 July 1994, fifty-first session) ...........                                                                 238

                       Appendix .......................................................                                                                                       244

  X.         DECISIONS OF THE HUMAN RIGHTS COMMITTEE DECLARING COMMUNICATIONS

              INADMISSIBLE UNDER THE OPTIONAL PROTOCOL TO THE INTERNATIONAL

              COVENANT ON CIVIL AND POLITICAL RIGHTS .............................                                                   246

              A.     Communication No. 384/1989, R. M. v. Trinidad and Tobago

                        (decision adopted on 29 October 1993, forty-ninth session) .....                                                          246

              B.     Communication No. 421/1990, Thierry Trébutien v. France

                        (decision adopted on 18 July 1994, fifty-first session) ........                                                                250

              C.     Communication No. 431/1990, O. Sara et al v. Finland

                        (decision adopted on 23 March 1994, fiftieth session) ..........                                                              257

              D.     Communication No. 433/1990, A. P. A. v. Spain

                        (decision adopted on 25 March 1994, fiftieth session) ..........                                                              269

                        Appendix .......................................................                                                                                       273

              E.      Communication No. 436/1990, Manuel Solís Palma v. Panama

                        (decision adopted on 18 July 1994, fifty-first session) ........                                                                274

              F.      Communication No. 452/1991, Jean Glaziou v. France

                        (decision adopted on 18 July 1994, fifty-first session) ........                                                                277

              G.     Communication No. 471/1991, Theophilus Barry v. Trinidad and

                        Tobago (decision adopted on 18 July 1994, fifty-first session) .                                                          283

              H.     Communication No. 475/1991, S. B. v. New Zealand

                        (decision adopted on 31 March 1994, fiftieth session) ..........                                                              287

              I.       Communication No. 476/1991, R. M. v. Trinidad and Tobago

                        (decision adopted on 31 March 1994, fiftieth session) ..........                                                              291

              J.       Communication No. 477/1991, J. A. M. B.-R. v. the Netherlands

                        (decision adopted on 7 April 1994, fiftieth session) ...........                                                                 294

                        Appendix .......................................................                                                                                       299

CONTENTS (continued)

Page

             K.     Communication No. 487/1992, Walter Rodríguez Veiga v. Uruguay

                       (decision adopted on 18 July 1994, fifty-first session) ........                                                                     302

             L.      Communication No. 489/1992, Peter Bradshaw v. Barbados

                       (decision adopted on 19 July 1994, fifty-first session) ........ 305

              M.    Communication No. 497/1992, Odia Amisi v. Zaire

                       (decision adopted on 19 July 1994, fifty-first session) ........                                                                     310

             N.     Communication No. 498/1992, Zdenek Drbal v. the Czech Republic

                       (decision adopted on 22 July 1994, fifty-first session) ........                                                                     312

                       Appendix .......................................................                                                                                          316

             O.     Communication No. 502/1992, S. M. v. Barbados

                       (decision adopted on 31 March 1994, fiftieth session) ..........                                                                 318

             P.      Communication No. 504/1992, Denzil Roberts v. Barbados

                       (decision adopted on 19 July 1994, fifty-first session) ........                                                                     322

             Q.     Communication No. 509/1992, A. R. U. v. the Netherlands

                       (decision adopted on 19 October 1993, forty-ninth session) .....                                                               327

             R.     Communication No. 510/1992, P. J. N. v. the Netherlands

                       (decision adopted on 19 October 1993, forty-ninth session) .....                                                               330

             S.      Communication No. 517/1992, Curtis Lambert v. Jamaica

                       (decision adopted on 21 July 1994, fifty-first session) ........                                                                     333

             T.      Communication No. 520/1992, E. and A. K. v. Hungary

                       (decision adopted on 7 April 1994, fiftieth session) ...........                                                                      336

                       Appendix .......................................................                                                                                            341

             U.     Communication No. 522/1992, J. S. v. the Netherlands

                       (decision adopted on 3 November 1993, forty-ninth session) .....                                                             342

             V.     Communication No. 524/1992, E. C. W. v. the Netherlands

                       (decision adopted on 3 November 1993, forty-ninth session) .....                                                             346

             W.    Communication No. 534/1993, H. T. B. v. Canada

                       (decision adopted on 19 October 1993, forty-ninth session) .....                                                               348

             X.     Communication No. 544/1993, K. J. L. v. Finland

                       (decision adopted on 3 November 1993, forty-ninth session) .....                                                             351

             Y.     Communication No. 548/1993, R. E. d. B. v. the Netherlands

                       (decision adopted on 3 November 1993, forty-ninth session) .....                                                             354

             Z.      Communication No. 559/1993, J. M. v. Canada (decision adopted

                       on 8 April 1994, fiftieth session) .............................                                                                                 357

CONTENTS (continued)

Page

           AA.     Communication No. 565/1993, A. B. v. Italy (decision adopted

                       on 8 April 1994, fiftieth session) .............................                                                                                 360

           BB.     Communication No. 567/1993, Ponsamy Poongavanam v. Mauritius

                       (decision adopted on 26 July 1994, fifty-first session) ........                                                                     362

           CC.     Communication No. 568/1993, K. V. and C. V. v. Germany

                       (decision adopted on 8 April 1994, fiftieth session) ...........                                                                      365

           DD.     Communication No. 570/1993, M. A. B., W. A. T. and J.-A. Y. T.

                       v. Canada (decision adopted on 8 April 1994, fiftieth session) .                                                               368

 XI.         RECOMMENDATION SUBMITTED BY THE COMMITTEE TO THE SUBCOMMISSION

             ON PREVENTION OF DISCRIMINATION AND PROTECTION OF MINORITIES

             CONCERNING A DRAFT THIRD OPTIONAL PROTOCOL TO THE INTERNATIONAL

             COVENANT ON CIVIL AND POLITICAL RIGHTS

XII.       LIST OF DOCUMENTS ISSUED DURING THE REPORTING PERIOD  

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. 321/1988, Maurice Thomas v. Jamaica

                 (views adopted on 19 October 1993, forty-ninth session)

Submitted by: Maurice Thomas

Alleged victim: The author

State party: Jamaica

Date of communication: 10 July 1988

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

            Meeting on 19 October 1993,

            Having concluded its consideration of communication No. 321/1988, submitted to the Human Rights Committee by Mr. Maurice Thomas 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 its views under article 5, paragraph 4, of the Optional Protocol.

The facts as submitted by the author

1.         The author of the communication is Maurice Thomas, a Jamaican citizen currently awaiting execution at St. Catherine District Prison. He claims to be the victim of a violation of articles 7 and 10 of the International Covenant on Civil and Political Rights by Jamaica. a/

2.         The author states that on the evening of 9 July 1988, a contingent of soldiers conducted a search in a block of St. Catherine Prison. At the end of their search, some of the soldiers were directed to the death row section where the author and 16 other inmates were detained. The soldiers were accompanied by several prison warders, whom the author mentions by name. Both the soldiers and the warders are said to have maltreated the inmates, including the author. In particular, the author claims that he was severely beaten with rifle butts and that he sustained injuries in his chest, his back, his left hip and his lower abdomen. Moreover, one of the soldiers wounded him in the neck with a bayonet and tore his clothes. The author adds that following the beatings he was thrown back into his cell and left without any kind of medical attention.

The complaint and exhaustion of domestic remedies

3.1       The author claims that he is the victim of a violation of articles 7 and 10 of the Covenant.

3.2       With regard to the requirement of exhaustion of domestic remedies, the author states that he wrote to the Jamaican Minister of Justice and the Parliamentary Ombudsman. On 6 September 1988, he received a letter from the office of the former, informing him that his complaint was being investigated and that he would be contacted again at a later stage. Since then he has had no further information about the result of the investigation. The Parliamentary Ombudsman also replied to the author, that his complaint would receive "the most prompt attention possible". Notwithstanding further enquiries from the author, the Parliamentary Ombudsman has not contacted him again. The author submits that no Government official has ever visited him in prison in order to investigate the alleged incident.

3.3       The author further contends that, since he lacks the financial means to retain counsel for purposes of filing a constitutional motion to the Supreme (Constitutional) Court of Jamaica, a motion under Sections 17 and 25 of the Jamaican Constitution is not an effective remedy available to him within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.

The State party's observations

4.         The State party contends that the communication is inadmissible for non-exhaustion of domestic remedies, since the author has failed to pursue constitutional remedies available to him. The State party submits that section 17 of the Jamaican Constitution guarantees protection from cruel, inhuman and degrading treatment, and that pursuant to section 25, anyone who alleges that a right protected by the Constitution has been, is being or is likely to be contravened in relation to him may apply to the Supreme (Constitutional) Court for redress.

The Committee's decision on admissibility

5.1       At its forty-second session, the Committee considered the admissibility of the communication. It noted that the author had submitted his case to the Inter-American Commission on Human Rights, but that the examination thereof was discontinued on 27 March 1990. The Committee found, therefore, that it was not precluded from considering the author's communication under article 5, paragraph 2 (a), of the Optional Protocol.

5.2       The Committee noted the State party's contention that the communication was inadmissible because of the author's failure to pursue the constitutional remedies available to him. It also noted the author's contention that the remedy indicated by the State party was not a remedy available to him because of his lack of financial means and the unavailability of legal aid for purposes of filing a constitutional motion to the Supreme (Constitutional) Court of Jamaica. The Committee further considered that the author had demonstrated that he had made reasonable efforts through administrative demarches to seek redress in respect of ill-treatment allegedly suffered while in detention. The Committee therefore found that the requirements of article 5, paragraph 2 (b), of the Optional Protocol had been met.

5.3       On 4 July 1991, the Committee therefore declared the communication admissible in so far as it might raise issues under articles 7 and 10 of the Covenant.

Review of admissibility

6.         In its submission dated 16 February 1993, the State party maintains that the communication is inadmissible for non-exhaustion of domestic remedies. It submits that there exists no absolute obligation under the Covenant for a State party to provide legal aid. In this connection, the State party argues that the author's indigence cannot be attributed to the State party and cannot serve as a justification for not exhausting domestic remedies.

7.         The Committee has taken note of the arguments submitted to it by the State party and reiterates that domestic remedies within the meaning of the Optional Protocol must be both available and effective. The Committee considers, that, in the absence of legal aid, a constitutional motion does not, in the circumstances of the instant case, constitute an available remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. There is therefore no reason to revise the Committee's earlier decision on admissibility of 4 July 1991.

Examination of the merits

8.         The State party informs the Committee, by submission of 16 February 1993, that it has ordered investigations into the author's allegations and that it will forward the results to the Committee as soon as they are available. The Committee notes that the State party was informed about the author's allegations on 17 November 1988 and that it has not concluded its investigations some 60 months after the event complained of.

9.1       The Committee has considered the communication in the light of all information made available to it by the parties, as required under article 5, paragraph 1, of the Optional Protocol. The Committee notes that the State party has confined itself to issues of admissibility. Article 4, paragraph 2, of the Optional Protocol enjoins the State party to investigate in good faith all the allegations made against it, and to make available to the Committee all information at its disposal. In the circumstances due weight must be given to the author's allegations, to the extent that they have been substantiated.

9.2       It remains uncontested that, on 9 July 1988, the author was assaulted by soldiers and warders, who beat him with rifle butts, as a result of which he sustained injuries in his chest, his back, his left hip and his lower abdomen, for which he did not receive medical treatment. The Committee considers that these claims have been substantiated and that the facts before the Committee amount to degrading treatment within the meaning of article 7 of the International Covenant on Civil and Political Rights and also entail a violation of article 10, paragraph 1, 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 7 and 10, paragraph 1, of the International Covenant on Civil and Political Rights.

11.       The Committee is of the view that Mr. Maurice Thomas, a victim of a violation of articles 7 and 10 of the International Covenant on Civil and Political Rights, is entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective remedy, including appropriate compensation. The State party is under an obligation to investigate the allegations made by the author with a view to instituting, as appropriate, criminal or other procedures against those found responsible and to take such other measures as may be necessary to prevent similar violations from occurring in the future.

12.       The Committee would wish to receive information, within 90 days, on any relevant measures taken by the State party in respect of the Committee's views.

[Done in English, French and Spanish, the English text being the original version.]

Notes

            a/         The author's claims under articles 7 and 10 refer to the same factual background as in communication No. 320/1988 (Victor Francis v. Jamaica), views adopted on 24 March 1993 (see Official Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/40), annex XII.K).

             B. Communication No. 322/1988, Hugo Rodríguez v. Uruguay

                 (views adopted on 19 July 1994, fifty-first session)

Submitted by: Hugo Rodríguez

Victim:                                         The author

State party: Uruguay

Date of communication: 23 July 1988 (initial submission)

Date of decision on admissibility: 20 March 1992

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

            Meeting on 19 July 1994,

            Having concluded its consideration of communication No. 322/1988 submitted to the Human Rights Committee by Mr. Hugo Rodríguez 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 its views under article 5, paragraph 4, of the Optional Protocol.

1.         The author of the communication is Hugo Rodríguez, a Uruguayan citizen residing in Montevideo. Although he invokes violations by Uruguay of articles 7, 9, 10, 14, 15, 18 and 19 of the International Covenant on Civil and Political Rights, he requests the Human Rights Committee to focus on his allegations concerning article 7 of the Covenant and on the State party's alleged failure properly to investigate his case, to punish the guilty and to award him appropriate compensation. The author is the husband of Lucía Arzuaga Gilboa, whose communication No. 147/1983 was also considered by the Committee. a/

The facts as submitted by the author

2.1       In June 1983, the Uruguayan police arrested the author and his wife, together with several other individuals. The author was taken by plainclothes policemen to the headquarters of the secret police (Dirección Nacional de Información e Inteligencia), where he allegedly was kept handcuffed for several hours, tied to a chair and with his head hooded. He was allegedly forced to stand naked, still handcuffed, and buckets of cold water were poured over him. The next day, he allegedly was forced to lie naked on a metal bedframe; his arms and legs were tied to the frame and electric charges were applied (picana eléctrica) to his eyelids, nose and genitals. Another method of ill-treatment consisted in coiling wire around fingers and genitals and applying electric current to the wire (magneto); at the same time, buckets of dirty water were poured over him. Subsequently, he allegedly was suspended by his arms, and electric shocks were applied to his fingers. This treatment continued for a week, after which the author was relocated to another cell; there he remained incomunicado for another week. On 24 June, he was brought before a military judge and indicted on unspecified charges. He remained detained at the "Libertad Prison" until 27 December 1984.

2.2       The author states that during his detention and even thereafter, until the transition from military to civilian rule, no judicial investigation of his case could be initiated. After the re-introduction of constitutional guarantees in March 1985, a formal complaint was filed with the competent authorities. On 27 September 1985, a class action was brought before the Court of First Instance (Juzgado Letrado de Primera Instancia en lo Penal de 4 Turno) denouncing the torture, including that suffered by the author, perpetrated on the premises of the secret police. The judicial investigation was not, however, initiated because of a dispute over the court's jurisdiction, as the military insisted that only military courts could legitimately carry out the investigations. At the end of 1986, the Supreme Court of Uruguay held that the civilian courts were competent, but in the meantime, the Parliament had enacted, on 22 December 1986, Law No. 15,848, the Limitations Act or Law of Expiry (Ley de Caducidad) which effectively provided for the immediate end of judicial investigation into such matters and made impossible the pursuit of this category of crimes committed during the years of military rule.

The complaint

3.         The author denounces the acts of torture to which he was subjected as a violation of article 7 of the Covenant and contends that he and others have been denied appropriate redress in the form of investigation of the abuses allegedly committed by the military authorities, punishment of those held responsible and compensation to the victims. In this context, he notes that the State party has systematically instructed judges to apply Law No. 15,848 uniformly and close pending investigations; the President of the Republic himself allegedly advised that this procedure should be applied without exception. The author further contends that the State party cannot, by simple legislative act, violate its international commitments and thus deny justice to all the victims of human rights abuses committed under the previous military regime.

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

4.1       The State party argues that the communication be declared inadmissible on the ground of non-exhaustion of domestic remedies. It rejects the author's contention that his complaints and the judicial proceedings were frustrated by the enactment of Law No. 15,848. First, the enactment of the law did not necessarily result in the immediate suspension of the investigation of allegations of torture and other wrongdoings, and article 3 of the law provides for a procedure of consultation between the Executive and the Judiciary. Secondly, article 4 does not prohibit investigations into situations similar to those invoked by the author, since the provision "authorizes an investigation by the Executive Power to clarify cases in which the disappearance of persons in presumed military or police operations has been denounced". Thirdly, the author could have invoked the unconstitutionality of Law No. 15,848; if his application had been accepted, any judicial investigation into the facts alleged to have occurred would have been reopened.

4.2       The State party further explains that there are other remedies, judicial and non-judicial, which were not exhausted in the case: first, "the only thing which Law No. 15,848 does not permit ... is criminal prosecution of the offenders; it does not leave the victims of the alleged offences without a remedy". Thus, victims of torture may file claims for compensation through appropriate judicial or administrative channels; compensation from the State of Uruguay may, for instance, be claimed in the competent administrative court. The State party notes that many such claims for compensation have been granted, and similar actions are pending before the courts.

4.3       Subsidiarily, it is submitted that Law No. 15,848 is consistent with the State party's international legal obligations. The State party explains that the law "did establish an amnesty of a special kind and subject to certain conditions for military and police personnel alleged to have been engaged in violations of human rights during the period of the previous ... regime .... The object of these legal normative measures was, and still is, to consolidate the institution of democracy and to ensure the social peace necessary for the establishment of a solid foundation of respect of human rights." It is further contended that the legality of acts of clemency decreed by a sovereign State, such as an amnesty or an exemption, may be derived from article 6, paragraph 4, of the Covenant and article 4 of the American Convention on Human Rights. In short, an amnesty or abstention from criminal prosecution should be considered not only as a valid form of legal action but also the most appropriate means of ensuring that situations endangering the respect for human rights do not occur in the future. The State party invokes a judgement of the Inter-American Court of Human Rights in support of its contention. b/

5.1       Commenting on the State party's submission, the author maintains that Law No. 15,848 does not authorize investigations of instances of torture by the Executive: its article 4 only applies to the alleged disappearance of individuals.

5.2       With respect to a constitutional challenge of the law, the author points out that other complainants have already challenged Law No. 15,848 and that the Supreme Court has ruled that it is constitutional.

Consideration of and decision on admissibility

6.1       At its forty-fourth session, the Committee considered the admissibility of the communication. The Committee ascertained, as it is required to do under article 5, paragraph 2 (a), of the Optional Protocol, that the matter was not being examined by the Inter-American Commission on Human Rights.

6.2       The Committee further took note of the State party's contention that the author had failed to exhaust available domestic remedies and that civil and administrative, as well as constitutional, remedies remained open to him. It observed that article 5, paragraph 2 (b), of the Optional Protocol required exhaustion of local remedies only to the extent that these are both available and effective; authors are not required to resort to extraordinary remedies or remedies the availability of which is not reasonably evident.

6.3       In the Committee's opinion, a constitutional challenge of Law No. 15,848 fell into the latter category, especially given that the Supreme Court of Uruguay has deemed the law to be constitutional. Similarly, to the extent that the State party indicated the availability of administrative remedies possibly leading to the author's compensation, the author plausibly submitted that the strict application of Law No. 15,848 frustrates any attempt to obtain compensation, as the enforcement of the law bars an official investigation of his allegations. Moreover, the author stated that on 27 September 1985 he and others started an action with the Juzgado Letrado de Primera Instancia en lo Penal, in order to have the alleged abuses investigated. The State party did not explain why no investigations were carried out. In the light of the gravity of the allegations, it was the State party's responsibility to carry out investigations, even if as a result of Law No. 15,848 no penal sanctions could be imposed on persons responsible for torture and ill-treatment of prisoners. The absence of such investigation and of a final report constituted a considerable impediment to the pursuit of civil remedies, e.g. for compensation. In these circumstances, the Committee found that the State party itself had frustrated the exhaustion of domestic remedies and that the author's complaint to the Juzgado Letrado de Primera Instancia should be deemed a reasonable effort to comply with the requirements of article 5, paragraph 2 (b).

6.4       To the extent that the author claimed that the enforcement of Law No. 15,848 frustrated his right to see certain former government officials criminally prosecuted, the Committee recalled its prior jurisprudence that the Covenant does not provide a right for an individual to require that the State party criminally prosecute another person. c/ Accordingly, this part of the communication was found to be inadmissible ratione materiae as incompatible with the provisions of the Covenant.

7.         On 20 March 1992, the Human Rights Committee decided that the communication was admissible in so far as it appeared to raise issues under article 7 of the Covenant.

The State party's observations

8.1       On 3 November 1992 the State party submitted its observations on the Committee's admissibility decision, focusing on the legality of Law No. 15,848 in the light of international law. It considered the Committee's decision to be unfounded, since the State's power to declare amnesty or to bar criminal proceedings are "matters pertaining exclusively to its domestic legal system, which by definition have constitutional precedence".

8.2       The State party emphasizes that Law No. 15,848 on the lapsing of State prosecutions was endorsed in 1989 by referendum, "an exemplary expression of direct democracy on the part of the Uruguayan people". Moreover, by a decision of 2 May 1988, the Supreme Court declared the law to be constitutional. It maintains that the law constituted a sovereign act of clemency that is fully in accord and harmony with the international instruments on human rights.

8.3       It is argued that notions of democracy and reconciliation ought to be taken into account when considering laws on amnesty and on the lapsing of prosecutions. In this context, the State party indicated that other relevant laws were adopted, including Law No. 15,737, adopted on 15 March 1985, which decreed an amnesty for all ordinary political and related military offences committed since 1 January 1962, and which recognized the right of all Uruguayans wishing to return to the country to do so and the right of all public officials dismissed by the military Government to be reinstated in their respective positions. This law expressly excluded from amnesty offences involving inhuman or degrading treatment or the disappearance of persons under the responsibility of police officers or members of the armed forces. By Law No. 15,783 of 28 November 1985, persons who had been arbitrarily dismissed for political, ideological or trade-union reasons were entitled to reinstatement.

8.4       With regard to the right to judicial safeguards and the obligation to investigate, the State party asserts that Law No. 15,848 in no way restricts the system of judicial remedies established in article 2, paragraph 3, of the Covenant. Pursuant to this law, only the State's right to bring criminal charges lapsed. The law did not eliminate the legal effects of offences in areas outside the sphere of criminal law. Moreover, the State argues, its position is consistent with the judgement of the Inter-American Court of Human Rights in the case of Velasquez Rodríguez that the international protection of human rights should not be confused with criminal justice (para. 174).

8.5       In this connection, the State party contends that "to investigate past events ... is tantamount to reviving the confrontation between persons and groups. This certainly will not contribute to reconciliation, pacification and the strengthening of democratic institutions." Moreover, "the duty to investigate does not appear in the Covenant or any express provision, and there are consequently no rules governing the way this function is to be exercised. Nor is there any indication in the Convention text concerning its precedence or superiority over other duties - such as the duty to punish - nor, of course, concerning any sort of independent legal life detached from the legal and political context within which human rights as a whole come into play ... The State can, subject to the law and in certain circumstances, refrain from making available to the person concerned the means of establishing the truth formally and officially in a criminal court, which is governed by public, not private interest. This, of course, does not prevent or limit the free exercise by such a person of his individual rights, such as the right to information, which in many cases in themselves lead to the discovery of the truth, even if it is not the public authorities themselves that concern themselves with the matter."

8.6       With regard to the author's contention that Law No. 15,848 "frustrates any attempt to obtain compensation, as the enforcement of the law bars an official investigation of his allegations" the State party asserts that there have been many cases in which claims similar to that of the author have succeeded in civil actions and that payment has been obtained.

9.         The State party's submission was transmitted to the author for comments on 5 January 1993. In spite of a reminder dated 9 June 1993, no comments were received from the author.

The Committee's views on the merits

10.       The Committee has taken due note of the State party's contention that the Committee's decision on admissibility was not well founded.

11.       Even though the State party has not specifically invoked article 93, paragraph 4, of the Committee's rules of procedure, the Committee has ex officio reviewed its decision of 20 March 1992 in the light of the State party's arguments. The Committee reiterates its finding that the criteria of admissibility of the communication were satisfied and holds that there is no reason to set aside the decision.

12.1      With regard to the merits of the communication, the Committee notes that the State party has not disputed the author's allegations that he was subjected to torture by the authorities of the then military regime in Uruguay. Bearing in mind that the author's allegations are substantiated, the Committee finds that the facts as submitted sustain a finding that the military regime in Uruguay violated article 7 of the Covenant. In this context, the Committee notes that, although the Optional Protocol lays down a procedure for the examination of individual communications, the State party has not addressed the issues raised by the author as a victim of torture nor submitted any information concerning an investigation into the author's allegations of torture. Instead, the State party has limited itself to justifying, in general terms, the decision of the Government of Uruguay to adopt an amnesty law.

12.2      As to the appropriate remedy that the author may claim pursuant to article 2, paragraph 3, of the Covenant, the Committee finds that the adoption of Law No. 15,848 and subsequent practice in Uruguay have rendered the realization of the author's right to an adequate remedy extremely difficult.

12.3      The Committee cannot agree with the State party that it has no obligation to investigate violations of Covenant rights by a prior regime, especially when these include crimes as serious as torture. Article 2, paragraph 3 (a) of the Covenant clearly stipulates that each State party undertakes "to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity". In this context, the Committee refers to its general comment No. 20 (44) on article 7, d/ which provides that allegations of torture must be fully investigated by the State:

"Article 7 should be read in conjunction with article 2, paragraph 3 .... The right to lodge complaints against maltreatment prohibited by article 7 must be recognized in the domestic law. Complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective ....

"The Committee has noted that some States have granted amnesty in respect of acts of torture. Amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible."

The State party has suggested that the author may still conduct private investigations into his torture. The Committee finds that the responsibility for investigations falls under the State party's obligation to grant an effective remedy. Having examined the specific circumstances of this case, the Committee finds that the author has not had an effective remedy.

12.4      The Committee moreover reaffirms its position that amnesties for gross violations of human rights and legislation such as Law No. 15,848, Ley de Caducidad de la Pretensión Punitiva del Estado, are incompatible with the obligations of the State party under the Covenant. The Committee notes with deep concern that the adoption of this law effectively excludes in a number of cases the possibility of investigation into past human rights abuses and thereby prevents the State party from discharging its responsibility to provide effective remedies to the victims of those abuses. Moreover, the Committee is concerned that, in adopting this law, the State party has contributed to an atmosphere of impunity which may undermine the democratic order and give rise to further grave human rights violations. e/

13.       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 article 7, in connection with article 2, paragraph 3, of the Covenant.

14.       The Committee is of the view that Mr. Hugo Rodríguez is entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective remedy. It urges the State party to take effective measures (a) to carry out an official investigation into the author's allegations of torture, in order to identify the persons responsible for torture and ill-treatment and to enable the author to seek civil redress; (b) to grant appropriate compensation to Mr. Rodríguez; and (c) to ensure that similar violations do not occur in the future.

15.       The Committee would wish to receive information, within 90 days, on any relevant measures adopted by the State party in respect of the Committee's views.

[Adopted in English, French and Spanish, the English text being the original version.]

Notes

            a/         See Official Records of the General Assembly, Forty-first Session, Supplement No. 40 (A/41/40), annex VIII.B, views adopted during the twenty-sixth session, on 1 November 1985, in which the Committee held that the facts disclosed violations of articles 7 and 10, paragraph 1, of the Covenant.

            b/        Judgement of the Inter-American Court of Human Rights in the case of Velasquez Rodríguez, given on 29 July 1988. Compare, however, the Advisory Opinion OC-13/93 of 16 July 1993, affirming the competence of the Inter-American Commission on Human Rights to find any norm of the internal law of a State party to be in violation of the latter's obligations under the American Convention on Human Rights. See also resolution No. 22/88 in case No. 9850 concerning Argentina, given on 4 October 1990, and report No. 29/92 of 2 October 1992 concerning the Uruguayan cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, in which the Commission concluded that "Law 15,848 of December 22, 1986 is incompatible with article XVIII (right to a fair trial) of the American Declaration of the Rights and Duties of Man, and articles 1, 8 and 25 of the American Convention on Human Rights". The Commission further recommended to the Government of Uruguay that it give the applicant victims or their rightful claimants just compensation, and that "it adopt the measures necessary to clarify the facts and identify those responsible for the human rights violations that occurred during the de facto period". (Annual Report of the Inter-American Commission on Human Rights, 1992-1993, p. 165).

            c/         See Official Records of the General Assembly, Forty-fourth Session, Supplement No. 40 (A/44/40), annex XI.B, communication No. 213/1986 (H. C. M. A. v. the Netherlands), declared inadmissible on 30 March 1989, para. 11.6; and ibid., Forty-fifth Session, Supplement No. 40 (A/45/40), annex X.J, communication No. 275/1988 (S. E. v. Argentina), declared inadmissible on 26 March 1990, para. 5.5.

            d/        Adopted at the Committee's forty-fourth session, in 1992; see Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex VI.A.

            e/         See the comments of the Committee on Uruguay's third periodic report under article 40 of the Covenant, adopted on 8 April 1993, Official Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/48), chap. III.

       C. Communication No. 328/1988, Roberto Zelaya Blanco v. Nicaragua

           (views adopted on 20 July 1994, fifty-first session)

Submitted by:              Myriam Zelaya Dunaway and Juan Zelaya,

                                             later joined by their brother, the alleged victim

Victim: Roberto Zelaya Blanco

State party: Nicaragua

Date of communication:                        20 July 1988 (initial submission)

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

            Meeting on 20 July 1994,

            Having concluded its consideration of communication No. 328/1988, submitted to the Human Rights Committee by Ms. Myriam Zelaya Dunaway and Juan Zelaya 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 its views under article 5, paragraph 4, of the Optional Protocol.

1.         The authors of the initial communication are Myriam Zelaya Dunaway and Juan Zelaya, citizens of the United States of America of Nicaraguan origin, currently residing in the United States. They submit the communication on behalf and upon the request of their brother, Roberto Zelaya Blanco, a Nicaraguan citizen born in 1935, at the time of submission of the communication detained at the prison of Tipitapa, Nicaragua. The authors allege that their brother has been a victim of violations by Nicaragua of articles 7, 9, 10, 14 and 17 of the International Covenant on Civil and Political Rights. In March 1989, Roberto Zelaya was released from detention on the basis of a governmental pardon, and on 19 June 1992 he confirmed the contents of the communication and joined his sister and brother as co-author. He now resides in the United States together with his wife and son.

The facts as submitted by the authors

2.1       Roberto Zelaya Blanco, an engineer and university professor, was arrested without a warrant on 20 July 1979, the day after the assumption of power by the Sandinista Government. He was tried by a Peoples' Tribunal (Tribunal Especial Primero), on account of his outspoken criticism of the Marxist orientation of the Sandinistas. On 23 February 1980, he was sentenced to 30 years' imprisonment. The Tribunal Especial Primero de Apelación confirmed the sentence on 14 March 1980 without an appeal hearing.

2.2       With respect to the issue of exhaustion of domestic remedies, the authors state that because of the political situation in Nicaragua, they were for a long time unable to identify Nicaraguan lawyers willing to take up their brother's case. Only at the beginning of 1989 did Roberto Zelaya inform his family that a lawyer, J. E. P. B., had indicated his readiness to represent him.

2.3       It is submitted that several organizations, including the Inter-American Commission on Human Rights, Amnesty International, the International Commission of Jurists and the International Committee of the Red Cross (Nicaraguan Section), were apprised of Mr. Zelaya's fate and visited him in prison. The authors add that they addressed many written complaints about their brother's fate to various Nicaraguan authorities, including President Daniel Ortega and the prison management, but that they did not receive any reply.

2.4       Upon his release in March 1989, Mr. Zelaya was allegedly threatened by a prison guard, "Comandante Pedro", with the words "Be very careful. If you dare write or speak against the Sandinistas, you will regret it."

The complaint

3.1       The authors submit that there was no wrongdoing or criminal activity on the part of their brother, and that the accusations formulated against him by the Sandinistas (apología del delito; instigación para delinquir) were purely political. It is claimed that Roberto Zelaya was detained arbitrarily from July 1979 to March 1989, that he was denied a fair hearing before an independent and impartial tribunal, that he was tortured and was subjected to pseudo-medical and pharmacological experiments, to inhuman treatment and death threats while in prison, and that the correspondence between Roberto Zelaya and his family was systematically interfered with by the prison authorities.

3.2       The authors submit that their brother's health, already precarious, deteriorated as a result of his detention. They submit that asthma attacks were treated experimentally with cortisone and other drugs. Finally, other inmates and a prison warder A. V. C. are said to have made death threats against Mr. Zelaya on numerous occasions.

The State party's information and the authors' comments thereon

4.1       The State party indicates that Roberto Zelaya Blanco was released from detention pursuant to a presidential pardon of 17 March 1989 (Decreto de Indulto No. 044).

4.2       The authors submit that their brother is currently receiving specialized medical treatment for the ailments developed or aggravated during 10 years of detention, inter alia, asthma and chronic hepatitis. They add that the treatment requires frequent and prolonged hospitalization.

The Committee's decision on admissibility

5.1       The Committee ascertained, as it is required to do under article 5, paragraph 2 (a), of the Optional Protocol, that the case was not under examination by another instance of international investigation or settlement. The general investigation, by regional and intergovernmental human rights organizations, of situations affecting a number of individuals, including the author of a communication under the Optional Protocol, does not constitute the "same matter" within the meaning of article 5, paragraph 2 (a).

5.2       The Committee interpreted the State party's general submission that Mr. Zelaya Blanco had been released from detention as implying that he had been offered an appropriate remedy. However, the Committee reiterated its position that it is implicit in rule 91 of the rules of procedure and article 4, paragraph 2, of the Optional Protocol, that a State party to the Covenant should make available to the Committee all the information at its disposal; this includes, at the stage of the determination of the admissibility of a communication, the provision of sufficiently detailed information about remedies pursued by, as well as remedies still available, to victims of alleged violations of their rights. The State party did not forward such information. On the basis of the information before it, the Committee concluded that there are no further effective remedies available to Roberto Zelaya in the circumstances of his case.

5.3       The Committee observed that the authorities of any State party to the Covenant are under an obligation to investigate alleged human rights violations and to make available appropriate judicial remedies and compensation to victims of such violations, even if they are attributable to a previous administration.

5.4       The Committee considered that the authors' allegations had been sufficiently substantiated, for purposes of admissibility, and that they raised issues under articles 7, 9, 10, 14 and 17 of the Covenant.

5.5       On 20 March 1992, the Human Rights Committee decided that the communication was admissible inasmuch as it appeared to raise issues under articles 7, 9, 10, 14 and 17 of the Covenant.

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

6.1       On 27 July 1992, the State party submitted that the new Government had embarked on a process of national reconciliation, without revanchism. At the same time, Nicaragua's independent judiciary now exercises an eminent role in protecting human rights. Since Mr. Zelaya enjoys all civil and political rights in Nicaragua, he is at liberty to demand compensation or any other remedy he may consider appropriate.

6.2       On 5 October 1992, Roberto Zelaya Blanco responded that he could not expect to receive any compensation from ad hoc tribunals in Nicaragua, heirs of the Tribunales Especiales de Justicia, which had convicted him and others without due process. In particular, he disputes the State party's submission that the Nicaraguan judiciary is now independent, because many judges, including those sitting in the Supreme Court, are political appointees of the former Sandinista Government. Moreover, he contends that if the new government were committed to impartial justice, it would have prosecuted motu proprio those responsible for crimes, corruption and other abuses during the years of the Sandinista administration. He further questions the commitment to human rights of the Government of Violeta Barrios de Chamorro, since she herself, as member of the then Sandinista Government (miembro de la Junta de Gobierno de Reconstrucción Nacional), had signed Decree No. 185 of 29 November 1979, which established the Tribunales Especiales de Justicia, which depended directly on the executive (poder ejecutivo) and prosecuted many former civil servants for the so-called crime of conspiracy (delito de asociación para delinquir) merely because they had been civil servants during the Somoza administration.

6.3       With regard to the confiscation of his property, the author invokes article 17 of the Universal Declaration of Human Rights, which protects the right to property, and points out that the confiscation decrees of the Sandinista Government had been signed by many of the current members of the Government, including the new President, Mrs. Violeta Barrios de Chamorro, in particular Decree No. 38 of 8 August 1979, which provided for the expropriation of former civil servants of the Somoza administration, including the medical doctors and dentists in the service of the Somoza family. The author lists three pieces of real property which he had owned and which were confiscated by the Sandinista Government and subsequently sold to third parties. The author alleges that the new Government is applying dilatory tactics to frustrate the restitution of such property, and rendering the process so complicated that claimants eventually abandon their claims because of the expense involved in attempting to recuperate their property. The author concludes that what was confiscated by way of administrative measures ought to be returned to the rightful owners also by administrative decree. The author further alleges discrimination in that the confiscated property of persons who were United States citizens before 19 July 1979 has been returned, whereas the property formerly owned by Nicaraguan citizens can only be recovered through onerous litigation.

6.4       With regard to his detention, the author claims that it was unlawful and arbitrary and that he was denied due process by the revolutionary tribunals. He encloses excerpts from the Amnesty International report entitled Nicaragua:  Derechos Humanos 1986-1989, which specifically refers to its own investigation of the Zelaya case. The report concluded:

"After examining the judgment and interviewing the prisoner in November 1987, Amnesty International arrived at the conclusion that there was no evidence that could prove the criminal charges against him: no victim had been identified in relation to the accusation of murder, and as to the other charges, the victim had been only referred to as 'the people of Nicaragua'. It would seem that the conviction was predicated on Mr. Zelaya Blanco's open anti-Sandinista position in the pre-revolutionary period and on his various journalistic publications ..." a/

6.5       The author further describes the torture and ill-treatment to which he was allegedly subjected. On 11 October 1979, he and other detainees were taken out of their cells by mercenaries of Argentinian nationality, Che Walter and Che Manuel. At 9 a.m. they were taken to an office where they were beaten. In particular, he claims that he was handcuffed and hanged with a chain from the roof of the office. He was allegedly asked to sign a confession concerning the assassination of Pedro Joaquin Chamorro, the husband of the current President of Nicaragua. The text of the confession was read out to him by D. M. R., the legal counsel to the Police Commander. He categorically refused to sign any such statement, in spite of threats. At 1 p.m., the interrogators returned with one of the most notorious torturers of the Dirección General de Seguridad del Estado, but he continued to refuse to sign any confession, whereupon Che Manuel, J. M. S. and R. C. G. proceeded to administer beatings all over his body until 7 p.m. At 11 p.m., the chains were removed, and he fell to the floor, where he was kicked by the same interrogators. He was then driven out of town, where he and 15 other prisoners were to be executed. Someone read out the death sentences ordered by the Junta de Gobierno de Reconstrucción Nacional. Whereas the other 15 were killed, he was not. Although he does not remember clearly what happened, it appears that he passed out and only regained consciousness sometime after the shooting, when he was lying on the ground and still handcuffed. At 2 a.m. on 12 October 1979, he was taken to Managua to the offices of the Dirección General de Seguridad del Estado, where he was received by "Compañero Ernesto", who removed his handcuffs. At 6.30 a.m., he was taken to a house that had been used as a dormitory of the former Oficina de Seguridad Nacional and interrogated there by "Comandante Pedro", whose real name was R. B., who also took his Bulova wristwatch, his wedding ring and his wallet containing 400 cordobas. He names five witnesses who saw him arrive at the offices of the Dicrección General de Seguridad del Estado. At around noon Comandante Pedro, together with J. R. (Compañero Patricio) and H. I. (Capitán Santiago), came to pick him up, handcuffed and took him to a room where he was again chained, partially suspended from the ceiling. He was told that the academic and administrative cadres of the University of Nicaragua were full of agents of the CIA and that he should endorse a declaration prepared for his signature, denouncing, inter alia, some of his University colleagues, Professors E. A. C., F. C. G., J. C. V. R. and A. F. V. When he refused to sign the declaration, because he never had any contact or relationship with the CIA, he was beaten by Comandante Pedro, Compañero Patricio and Capitán Santiago. He was then left in peace for a few weeks, but on 7 November 1979 he was again handcuffed, blindfolded and taken by Comandante Pedro to a place where two truckloads of prisoners were being assembled. He was forced to board one of the trucks and was driven out of town, where the prisoners were made to climb down and walk to a spot where they were ordered to kneel; approximately 30 of them were shot with a bullet to the back of the head. The surviving 10 were taken elsewhere. He was told not to speak of what he had witnessed because his wife and son would be made to suffer for it.

6.6       On 26 November 1979, the author and 23 other prisoners were taken to a new prison establishment near the international airport of Managua, the Centro de Rehabilitación Social y Política, under Comandante V. J. G., who allegedly personally assassinated several guards of the former Somoza Government.

6.7       On 7 December, after two months of incomunicado detention, he was allowed to be visited by his wife. He learned from her that their home had been ransacked on 12 October by forces of the Dirección General de Seguridad del Estado, which beat up his then pregnant wife, causing a miscarriage, and stole jewels and other items of personal property.

6.8       On 26 March 1980 at 11 p.m., he was transferred, together with some 29 other political prisoners, to the Carcel Modelo, which was more like a concentration camp where the inmates had been so undernourished, he claims, that they looked like figures from Buchenwald. Because of the torture and the fear of being summarily executed, the prisoners appeared traumatized. Moreover, family visits were not allowed, nor was the sending of food packages. Responsible for the abuses were F. F. A., F. L. A., S. A. G. and J. I. G. C. Principal responsibility, however, lay on J. M. A., the Director of the Penitentiary system, under whose orders allegedly more than 100 political prisoners were shot.

6.9       The author claims that these crimes and abuses have not been investigated by the new Government of Nicaragua.

6.10      In a further submission of 29 March 1993, the author refers to a book by Dr. Carlos Humberto Canales Altamirano, Injusticia Sandinista. Carcel y Servicio, in which his case is frequently mentioned, in particular the subhuman prison conditions leading to his infection with hepatitis and the aggravation of his chronic asthma attacks and the responsibility of the prison doctor J.A.B. for these conditions.

7.         The author's submissions were transmitted to the State party on 5 January 1993 and 26 August 1993. In its observations of 16 July 1993, the State party does not enter the merits of the case but merely refers to article 5, paragraph 2 (b), of the Optional Protocol, indicating that the author has not availed himself of local remedies to solicit the return of his property and compensation for his imprisonment.

8.1       In a further submission dated 6 September 1993, the author comments on the State party's observations, referring to Decree No. 185 of 29 November 1979, pursuant to which the judgments of the Tribunales Especiales de Justicia were not subject to appeal or cassation. Thus, the exhaustion of local remedies was completed with the handing down of the 30-year sentence against him by the revolutionary tribunal. The author's release from imprisonment after 10 years of deprivation and abuse does not close the book on the violation of his rights under the International Covenant on Civil and Political Rights.

8.2       With regard to the issue of impunity, the author points out that the State party has not initiated any prosecution against named torturers of the prior regime and that these named persons are living in Nicaragua with perfect impunity, although their crimes have been denounced and documented. The author further alleges that the State party has failed to initiate investigation of these cases.

8.3       On 16 June 1994, the State party reiterated its position that the author has not exhausted domestic remedies as required by article 5, paragraph 2 (b), of the Optional Protocol. No submissions on the merits of the author's allegations were made.

8.4       With regard to the author's allegations that the ad hoc tribunals in Nicaragua are not impartial, the State party states that the Government has no power to intervene in their deliberations or decisions.

8.5       The State party affirms that human rights are today respected in Nicaragua and refers to the fact that the 1993 session of the Organization of American States and the ninth Interamerican Indigenous Congress were held in Nicaragua, thus manifesting that the international community recognizes Nicaragua's democratic legal order.

The Committee's views on the merits

9.1       The Committee has taken due note of the State party's submission that the author has failed to exhaust domestic remedies, since he can now address his complaints to the competent courts of the present Government of Nicaragua.

9.2       Even though the State party has not specifically invoked article 93, paragraph 4, of the Committee's rules of procedure, the Committee has ex officio reviewed its decision of 20 March 1992 in the light of the State party's arguments. The Committee welcomes the State party's readiness to examine the author's complaints and considers that such examination could be seen as a remedy under article 2, paragraph 3, of the Covenant. However, for purposes of article 5, paragraph 2 (b), of the Optional Protocol, the Committee considers that the author, who was arrested in 1979 and spent 10 years in detention, cannot, at this stage, be required to engage the Nicaraguan courts of the present administration before his case can be examined under the Optional Protocol. In this context, the Committee recalls that the communication was submitted to the Committee in 1988, at a time when domestic remedies were not available or not effective. Even if domestic remedies may now be available, the application of such remedies would entail an unreasonable prolongation of the author's quest to be vindicated for his detention and alleged ill-treatment; the Committee concludes that the Optional Protocol does not require the author, in the circumstances of his case, to further engage the Nicaraguan courts. Moreover, the Committee reiterates its finding that the criteria of admissibility under the Optional Protocol were satisfied at the time of submission of the communication and that there is no reason to set aside the Committee's decision of 20 March 1992.

9.3       The Committee has considered the communication in the light of all the information made available to it by the parties, as required under article 5, paragraph 1, of the Optional Protocol. The Committee regrets the absence of any submission by the State party concerning the substance of the matter under consideration. Pursuant to article 4, paragraph 2, of the Optional Protocol, a State party should investigate in good faith all the allegations of violations of the Covenant made against it and make available to the Committee all the information at its disposal. In the absence of any State party submission on the merits of the case, due weight must be given to the author's allegations, to the extent that they have been substantiated.

10.1      With regard to the author's allegation concerning the confiscation of his property, the Committee recalls that the Covenant does not protect the right of property, as such. However, an issue under the Covenant may arise if a confiscation or expropriation is based on discriminatory grounds prohibited in article 26 of the Covenant. Although the author has stated that his property was confiscated as a consequence of his belonging to a category of persons whose political views were contrary to those of the Sandinista Government, and in a fashion that could be termed discriminatory, the Committee does not have sufficient facts before it to enable it to make a finding on this point.

10.2      In its prior jurisprudence the Committee has found that interference within a prisoner's correspondence may constitute a violation of article 17 of the Covenant. However, in the instant case the Committee lacks sufficient information to make a finding concerning a violation of the author's right to privacy under this provision.

10.3      With regard to the author's allegations that he was subjected to arbitrary detention, the Committee notes that the State party has not disputed the author's description of the reasons for his detention, i.e. his political opinions contrary to those of the Sandinista Government. The Committee has also taken note of the many annexes to the author's submissions, including the relevant report from the Nicaraguan Departamento de Seguridad del Estado and the evaluation of the case by Amnesty International. In the light of all the information before it, the Committee finds that the author's arrest and detention violated article 9, paragraph 1, of the Covenant.

10.4      As to the author's allegations that he was denied a fair trial, the Committee finds that the proceedings before the Tribunales Especiales de Justicia did not offer the guarantees of a fair trial provided for in article 14 of the Covenant. In particular, the Committee observes that the author's allegation that he was repeatedly put under duress to sign a confession against himself, in contravention of article 14, paragraph 3 (g), has not been contested by the State party.

10.5      With regard to the author's allegations of having been subjected to torture and ill-treatment, the Committee observes that the author's submissions are very detailed and that he mentions the names of the officers who ordered, participated in or were ultimately responsible for the ill-treatment. Moreover, the author has named numerous witnesses of the alleged mistreatment. In the circumstances and bearing in mind that the State party has not disputed the author's allegations, the Committee finds that the information before it sustains a finding that the author was a victim of a violation of articles 7 and 10, paragraph 1, of the Covenant.

10.6      The Committee considers violations of articles 7 and 10, paragraph 1, of the Covenant to be extremely serious, and requiring prompt investigation by States parties to the Covenant. In this context, the Committee refers to its general comment             No. 20 (44) on article 7, b/ which reds in part:

                       "Article 7 should be read in conjunction with article 2, paragraph 3 ... The right to lodge complaints against maltreatment prohibited by article 7 must be recognized in the domestic law. Complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective ...

                       "... States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible."

In this respect, the State party has indicated that the author may institute actions before the Nicaraguan courts. Notwithstanding the possible viability of this avenue of redress, the Committee finds that the responsibility for investigations falls under the State party's obligation to grant an effective remedy.

11.       The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, is of the view that the facts before it disclose violations of articles 7, 9, paragraph 1, 10, paragraph 1, and 14, paragraph 3 (g), of the Covenant.

12.       The Committee is of the view that Mr. Roberto Zelaya Blanco is entitled, under article 2, paragraph 3 (a), of the Covenant to an effective remedy. It urges the State party to take effective measures (a) to grant appropriate compensation to Mr. Zelaya for the violations suffered, also pursuant to article 9, paragraph 5, of the Covenant; (b) to carry out an official investigation into the author's allegations of torture and ill-treatment during his detention; and (c) to ensure that similar violations do not occur in the future.

13.       The Committee would wish to receive information, within 90 days, on any relevant measures adopted by the State party in respect of the Committee's views.

[Adopted in English, French and Spanish, the English text being the original version.]

                                        Notes

            a/        Amnesty International, Nicaragua: Derechos Humanos 1986-1989 (London, November 1989), pp. 13-4.

            b/        Adopted at the Committee's forty-fourth session, in 1992; see Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex VI.A,, paras. 14 and 15.

             D. Communication No. 330/1988, Albert Berry v. Jamaica

                 (views adopted on 7 April 1994, fiftieth session)

Submitted by: Albert Berry (represented by counsel)

Victim: The author

State party: Jamaica

Date of communication:                                     6 May 1988

Date of decision on admissibility: 16 October 1992

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

            Meeting on 7 April 1994,

            Having concluded its consideration of communication No. 330/1988, submitted to the Human Rights Committee by Mr. Albert Berry under the Optional Protocol to the International Covenant on Civil and Political Rights,

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

            Adopts its views under article 5, paragraph 4, of the Optional Protocol.

1.         The author of the communication is Albert Berry, a Jamaican citizen, born in 1964, awaiting execution at St. Catherine District Prison, Jamaica. He claims to be the victim of violations by Jamaica of articles 6, paragraph 1, 7, 9, paragraphs 3 and 4, 10, paragraphs 1 and 2 (a), 14, paragraphs 1, 3 (b) to (e) and (g) and 5, and 17 of the International Covenant on Civil and Political Rights. He is represented by counsel.

The facts as submitted by the author

2.1       On 27 March 1984, the author was arrested on a murder charge. The preliminary hearing was held on 15 June 1984. On 30 January 1985, after a three-day trial, the author was convicted and sentenced to death in the St. Ann's Circuit Court. He appealed to the Jamaican Court of Appeal on 5 February 1985. The appeal was dismissed on 21 October 1987. The Court of Appeal produced its written judgement on 11 November 1987. The author subsequently petitioned the Judicial Committee of the Privy Council for special leave to appeal. On 17 May 1990, the Judicial Committee refused leave to appeal. With this, it is submitted, available domestic remedies have been exhausted.

2.2       The author was charged with the murder of one D. G. The case for the prosecution was that, on 23 March 1984 at about 8 p.m., a group of 11 men, including D. G., were walking along the unlit main road at Maider, Parish of St. Ann. One or two of the men carried flashlights, one of which was lit. They suddenly came upon the author and two or three other unidentified men, who blocked the road and opened fire. One shot hit D. G. in the back.

2.3       The prosecution relied solely on identification evidence given by four witnesses who allegedly belonged to a rival gang. The defence was based on alibi.

2.4       According to the prosecution witnesses, the flashlight carried by one member of the group illuminated the other group of men in front of them just prior to the shooting. Each of the witnesses purportedly recognized the author, whom they knew from childhood and who, according to their statements, apparently was not wearing a mask. The witnesses were unable to identify the other men, who were masked. It is stated that the witnesses gave contradictory evidence as to the number of men carrying flashlights; the number of assailants; whether the author carried a gun; the distance which separated the two groups; the lapse of time between the encounter with the assailants and the burst of gunfire; how long the gunfire lasted; the position of the author within the group of assailants; and the number of shots fired. Furthermore, it is stated that no evidence was produced that it was the author who fired the shot(s), and no motive for the shooting, or for the murder of D. G., was adduced.

2.5       The author states that during the preliminary inquiry, N. W., the police officer in charge of the investigation, who came to his cell nearly every day, and another unidentified police officer, forced him to sign a prepared statement, in which he reportedly admitted that he was in the company of the three men who shot the deceased. It appears, however, that the prosecution did not seek to produce as evidence said statement. It was not until N. W. (being the last witness for the prosecution) was called and re-examined that the issue of the alleged admission made by the author came up. Author's counsel did not raise any objection against N.W.'s evidence in this respect.

2.6       It further appears that counsel for the appeal argued that the trial judge had erred in admitting this evidence which, he submitted, was highly prejudicial to the author and which was of no probative value. The Court of Appeal, however, dismissed this ground of appeal, stating that:

"The admission in the instant case provided powerful corroboration of the evidence of visual identification, and its probative value could be of telling effect. There was never any suggestion that the statement made by the applicant after caution was other than voluntary, and it ill behoves the applicant to make no objection to the admission of the statement at the trial, and now to rely upon its allegedly prejudicial effect. We hold that the evidence of N.W. as to the admission made by the applicant was relevant and probative and was properly admitted."

2.7       The author was represented by legal aid attorneys during the preliminary hearing and on appeal. It appears from the AC Form 2 ("Particulars of Trial") that he was represented by a privately retained lawyer during the trial. A London law firm represented him pro bono before the Judicial Committee of the Privy Council.

The complaint

3.1       Counsel, in a submission of 22 June 1992, notes that there have been no executions in Jamaica since March 1988; the Government of Jamaica also considered abolishing the death penalty in Jamaica as confirmed by solicitors to the State party in 1990. Counsel further contends that under the provisions of "the Bill to amend The Offences Against The Person Act" (which at the time was being considered by the Jamaican Parliament), the author would regain his freedom under the relevant parole provisions since he has served more than seven years and he has not been convicted of a capital crime within the meaning of the Bill. a/ It is stated that, in the light of the above, the author should have a reasonable expectation not only that his sentence will be commuted, but that he will be released. Counsel submits that the author's execution would constitute an arbitrary deprivation of life contrary to article 6, paragraph 1, of the Covenant and that, in the circumstances, the renewed threat of execution could amount to a violation of article 7 of the Covenant.

3.2       Article 7 is further said to have been violated by N. W., who allegedly threatened to shoot the author if no confession statement was forthcoming. Finally, it is submitted that the constant stress and anxiety suffered as a result of prolonged detention on death row, as well as the conditions of the author's imprisonment at St. Catherine District Prison, constitute a separate violation of article 7.

3.3       The author alleges that he was not cautioned by the police before his interrogation. Counsel points out that the author was detained for two and a half months before he was brought before an examining magistrate. During that time, the author did not benefit from legal representation. This, coupled with the fact that it took another seven and a half months before the author was tried, is said to amount to a violation of article 9, paragraphs 3 and 4, of the Covenant.

3.4       The author alleges a violation of article 10, paragraphs 1 and 2 (a). He claims that during the 10 months of his pre-trial detention at Brown's Town Police Station, he was not segregated from convicted persons and was not subject to separate treatment appropriate to his status as an unconvicted person. He further claims that during that period, he was kept chained. Furthermore, he alleges that he was hit in the face by a policeman on one of the three days of his trial when he was brought back to his cell, and that he has been exposed to random brutality by the prison guards on death row.

3.5       It is stated that on the first day of the trial, the author's attorney was not present in court. On that occasion, the author was represented by the attorney's assistant, one Mr. S. It is submitted that the author complained to Mr. S. about the foreman of the jury, whom he believed to be prejudiced against him. Mr. S., however, raised no objections. Counsel submits the transcript of a letter, dated 22 January 1988, from the author's mother to the author, from which it would appear that the foreman was bribed to ensure that the author was convicted. Furthermore, it is submitted that the four prosecution witnesses had a grudge against Mr. Berry. They allegedly belonged to a gang who terrorized the community where the author lived, and had tried to kill him more than once.

3.6       Counsel, while conceding that it is not in principle for the Committee to evaluate facts and evidence in a particular case or to review specific instructions by the judge to the jury, contends that the Committee's reservations thereon have so far been confined to instructions by the judge to the jury. Counsel argues that, in the circumstances of the author's case, the presence in the jury of a biased person is a matter that warrants examination by the Committee.

3.7       The author claims that, during the preliminary hearing and on appeal, he was not represented by counsel of his choosing, and that he did not have adequate time and facilities for the preparation of his defence, in breach of article 14, paragraph 3 (b) of the Covenant. He indicates that only on the day the preliminary hearing began did the examining magistrate appoint a lawyer. As a result, he had only one hour and forty minutes to communicate with his lawyer. As to his appeal, the author states that he was again assigned a lawyer without his consent; he submits that he only met once with this lawyer, for fifteen minutes, between 21 and 25 February 1988, about four months after losing his appeal. Finally, the author claims that he did not have time and facilities for the preparation of his trial. He affirms that he met with his attorney only three times before the trial, each time for no more than thirty minutes. During the trial, the attorney met with him only a few times.

3.8       Counsel points out that the author filed his application for leave to appeal on 5 February 1985 and that his legal representative filed the supplementary grounds of appeal on 20 October 1987, only one day before the Court of Appeal hearing took place. It is submitted that the lapse of time between the filing of the original grounds and that of the supplementary grounds of appeal was the result of the fact that the author did not have the assistance of a lawyer, and that the delay in the hearing of the appeal (more than two and a half years) amounts to a violation of article 14, paragraph 3 (c), of the Covenant.

3.9       The author complains that he was excluded from the hearing of his appeal, in breach of article 14, paragraph 3 (d), despite the fact that he had expressed his wish to be present in court. Counsel notes that an appellant is not entitled to be present at the hearing of an application for leave to appeal, but that in the author's case the hearing of the application for leave to appeal was treated as the hearing of the appeal, and he would thus have been entitled to be present. Furthermore, counsel submits that as the author did not have the opportunity to instruct his representative for the appeal prior to the hearing, and as his attorney at the trial failed to raise the issues of the foreman of the jury and the author's ill-treatment by the police, the author was denied an effective appeal, in breach of article 14, paragraph 5. Counsel refers to the Committee's views on communication No. 248/1987 (Glenford Campbell v. Jamaica), b/ where it held that the combined effect of the lawyer's failure to bring the defendant's maltreatment before the court, the consequences that failure had on the conduct of the appeal and the lack of an opportunity to instruct counsel for the appeal or to defend himself in person, amounted to a denial of effective representation in the judicial proceedings and non-compliance with the requirements of article 14, paragraph 3 (d), of the Covenant.

3.10      As to article 14, paragraph 3 (e), it is submitted that during the trial the author was denied the right to have his mother and three of his sisters examined as witnesses for the defence. It is further submitted that counsel ignored the author's instructions to call witnesses other than his brother-in-law.

3.11      Concerning the allegation that Mr. Berry was forced to sign a confession, in breach of article 14, paragraph 3 (g), counsel submits numerous letters addressed to the relevant Jamaican authorities, requesting them to make available copies of the depositions used at, and the transcript of, the author's preliminary hearing. He explains that one of the reasons for doing so has been to identify to what extent statements made by the witnesses at the trial differed from their statements at the preliminary hearing. Counsel complains that all his endeavours to obtain said documents have been futile.

3.12      Finally, the author claims that the warders at St. Catherine District Prison have repeatedly interfered with his correspondence, in violation of article 17, paragraph 1. He contends that books sent to him have been withheld and that his letters sent through the prison office have never reached the addressees. In this context, it is submitted that, in May of 1991, inmates found a room packed with letters and documents from and to death row prisoners. The author reportedly complained to the Parliamentary Ombudsman about this finding but has not received any reply to date. This is said to amount to a violation of article 17, paragraph 2, of the Covenant.

3.13      With respect to the requirement of exhaustion of domestic remedies, it is submitted that an application to the Supreme (Constitutional) Court would not be an available and effective remedy in the author's case, as legal aid is not given for this purpose and the author himself does not have the means to secure legal representation in Jamaica to see a constitutional motion argued on his behalf.

The State party's observations

4.         In its submission, dated 18 April 1989, the State party contended that the communication was inadmissible because of non-exhaustion of domestic remedies, since at the time of the submission it was still open to the author to petition the Judicial Committee of the Privy Council. On 1 July 1992, a further submission from author's counsel with fresh allegations was transmitted to the State party, providing it with the opportunity to comment on the admissibility of these new claims. The State party's comments in this respect were only received after the Committee declared the communication admissible (see para. 6.1 below).

The Committee's decision on admissibility

5.1       During its forty-sixth session, the Committee considered the admissibility of the communication. It noted that the author's petition for special leave to appeal to the Judicial Committee of the Privy Council had been dismissed, and that the State party had not, at that time, raised any further objections in respect of the admissibility of the communication.

5.2       With regard to the author's claims under article 17, the Committee considered that they had not been substantiated, for purposes of admissibility, and that, in this respect, the author had no claim within the meaning of article 2 of the Optional Protocol.

5.3       On 16 October 1992, the Committee declared the communication admissible in so far as it appeared to raise issues under articles 6, 7, 9, paragraphs 3 and 4, 10 and 14 of the Covenant.

The State party's request for review of admissibility and information on the merits of the communication

6.1       In its submission dated 26 October 1992 (received only after the Committee declared the communication admissible), the State party argues that the communication is inadmissible because of non-exhaustion of domestic remedies. It states that the rights under the Covenant which allegedly are violated in the author's case are similar to those contained in the Jamaican Constitution. Under section 25 of the Constitution, it would be open to the author to seek redress for the alleged violations of his constitutional rights before the Supreme (Constitutional) Court of Jamaica.

6.2       Moreover, with regard to the alleged violations of article 9, paragraphs 3 and 4, of the Covenant, the State party argues that, at all times during his detention, the author could have applied to the courts for a writ of habeas corpus to have the reasonableness of his detention tested. It is submitted that the author's failure to avail himself of this remedy cannot be attributed to the State party.

6.3       The State party notes that "the author's complaints under article 14, paragraph 1, relate to the conduct of the trial including jury selection and bias of prosecution witnesses". It further contends that "the alleged breach of article 14, paragraph 3 (g), relates to the authenticity of a confession statement, which is a matter of evidence". With reference to the Committee's jurisprudence, the State party submits that these claims fall outside the scope of the Committee's competence.

7.1       In its submission of 1 July 1993, the State party reiterates that the communication should be considered inadmissible because of non-exhaustion of domestic remedies and requests the Committee to review its decision of 16 October 1992 accordingly. With regard to the substance of the matter under consideration, it provides the following comments: as to the author's claims under article 14, paragraph 3 (b) of the Covenant, the State party submits that the material presented to the Committee does not disclose that at any time during the proceedings either counsel or the author complained to the trial judge or the Court of Appeal that the time or facilities allowed for the preparation of the defence were inadequate.

7.2       With regard to the adequacy of the author's representation, the State party argues that the facts relied upon by the author are all attributable to his legal representative, who determined, according to his professional skills, what issues were important in the conduct of the defence.

7.3       In so far as the allegation of denial of the right to be present in court is concerned, the State party asserts that at no time did the author or his counsel indicate to the Court of Appeal that he wished to be present at the hearing of the appeal.

7.4       Finally, with regard to the author's allegation that he was denied the right to have his conviction and sentence reviewed by a higher tribunal, the State party contends that Mr. Berry is estopped from making this assertion, as he exercised this right by appealing to the Court of Appeal and to the Judicial Committee of the Privy Council.

Counsel's comments

8.1       In a submission of 16 September 1993, counsel states that Mr. Berry was notified in December 1992 that his case had been reviewed by a judge of the Court of Appeal pursuant to section 7 (2) of the Offences against the Person (Amendment) Act 1992, and that his case had been classified as a capital murder case pursuant to section 2 (1) (f) of the Act. Section 2 (1) (f) states as follows:  

"Any murder committed by a person in the cause or furtherance of an act of terrorism, that is to say, an act involving the use of violence by that person which, by reason of its nature and extent, is calculated to create a state of fear in the public or any section of the public ... shall be a capital murder".

Counsel points out that his client was indicted for murder only and subsequently convicted thereof, and that the issue of terrorism was never raised during the judicial proceedings; he argues that a subsequent addition of a charge of terrorism to his client's murder charge violates the principle of due process of law. Counsel adds that, on 8 January 1993, he applied to the Court of Appeal for review of the classification in Mr. Berry's case; the application is currently pending before the Court of Appeal. c/ Counsel submits that the above is further evidence in substantiation of the claims that the author is the victim of violations by the State party of articles 6 and 7.

8.2       With reference to the alleged breach of article 14, paragraph 3 (g) (see para. 3.11 above), counsel forwards a letter, dated 7 May 1993, from the Registrar of the Supreme Court, informing him that the authorities of the Magistrate's Court are unable to locate the depositions made at the preliminary hearing in the author's case. It is submitted that because of the State party's failure to produce the requested documents, it is impossible for the author further to substantiate his claims that the prosecution witnesses were biased and that he was forced by the police to sign a statement.

Review of admissibility

9.1       The Committee has taken note of the State party's arguments on admissibility, and of counsel's information regarding the classification review procedure in Mr. Berry's case, both submitted after the Committee's decision declaring the communication admissible.

9.2       With regard to the State party's contention that constitutional remedies are still open to the author, the Committee recalls that domestic remedies within the meaning of the Optional Protocol must be both available and effective. The Committee considers that in the absence of legal aid, a constitutional motion does not, in the specific circumstances of the instant case, constitute an available remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol, which the author must exhaust. d/

9.3       As to counsel's claim that the author's execution would constitute an arbitrary deprivation of life contrary to article 6, paragraph 1, and that the "renewed threat of execution" would be in violation of article 7, the Committee notes that these issues are related to the classification of the author's case under the Offences against the Person (Amendment) Act 1992. The Committee further notes that an application for review of the classification in the case remains pending before the Court of Appeal of Jamaica. On the basis of this new information, the Committee decides not to proceed with the consideration of this part of the communication.

9.4       The Committee, therefore, revises its decision on admissibility in part and considers this part of the communication (see para. 3.1 above) to be inadmissible under article 5, paragraph 2 (b), of the Optional Protocol.

Examination of the merits

10.       In the light of the above, the Committee decides to proceed with its examination of the merits of the communication in so far as it relates to the remaining allegations under article 7 and in so far as it raises issues under articles 9, paragraphs 3 and 4, 10 and 14 of the Covenant.

11.1      In respect of the allegations pertaining to article 9, paragraphs 3 and 4, the State party has not contested that the author was detained for two and a half months before he was brought before a judge or judicial officer authorized to decide on the lawfulness of his detention. Instead, the State party has confined itself to the contention that, during his detention, the author could have applied to the courts for a writ of habeas corpus. The Committee notes, however, the author's claim, which remains unchallenged, that throughout this period he had no access to legal representation. The Committee considers that a delay of over two months violates the requirement, in article 9, paragraph 3, that anyone arrested on a criminal charge shall be brought "promptly" before a judge or other officer authorized by law to exercise judicial power. In the circumstances, the Committee concludes that the author's right under article 9, paragraph 4, was also violated, since he was not, in due time, afforded the opportunity to obtain, on his own initiative, a decision by a court on the lawfulness of his detention.

11.2      The Committee notes that the author's claims under article 10 of the Covenant, in respect of his treatment in pre-trial detention and in respect of his treatment on death row (see para. 3.4 above) have not been contested by the State party. In the absence of a response from the State party, the Committee will give appropriate weight to the author's allegations that, during the 10 months of his pre-trial detention at Brown's Town Police Station, he was not segregated from convicted persons, was not subject to separate treatment appropriate to his status as an unconvicted person and was kept chained. Furthermore, he was hit in the face by a policeman on one of the days of his trial when he was brought back to his cell. In the opinion of the Committee, therefore, he was not treated in accordance with article 10, paragraphs 1 and 2 (a), of the Covenant. As to the author's claim that he has been exposed to random brutality on death row, the Committee notes that no further details have been offered on this claim. It therefore finds no violation of article 10 in this respect.

11.3      As to the author's claim that he did not receive a fair trial, under article 14 of the Covenant, because of the presence in the jury of an allegedly biased person and the use of evidence against him which was allegedly obtained under duress, the Committee observes that these issues were not raised during the trial. Furthermore, the written judgement of the Court of Appeal reveals that the issue of self-incrimination without prior cautioning by the police was raised during the trial, when N. W. testified that the author had made his statement after police cautioning. Neither counsel nor the author contended at the trial that he had not been cautioned. The Committee is of the opinion that the failure of the author's representative to bring these issues to the attention of the trial judge, which purportedly resulted in the negative outcome of the trial, cannot be attributed to the State party, since the lawyer was privately retained. The Committee, therefore, finds no violation of article 14, paragraph 1, of the Covenant in this respect.

11.4      The right of an accused person to have adequate time and facilities for the preparation of his defence at trial is an important element of the guarantee of a fair trial and an important aspect of the principle of equality of arms. In cases in which a capital sentence may be pronounced on the accused, it is axiomatic that sufficient time must be granted to the accused and his counsel to prepare the defence for the trial. The determination of what constitutes adequate time requires an assessment of the individual circumstances of each case. The author also contends that he was unable to obtain the attendance of witnesses other than his brother-in-law. The Committee notes, however, that the material before it does not reveal that either counsel or the author himself complained to the trial judge that the time or facilities for the preparation of the defence had been inadequate. If counsel or the author felt that they were not properly prepared, it was incumbent upon them to request an adjournment. Furthermore, there is no indication that counsel's decision not to call other witnesses was not based on the exercise of his professional judgement, or that, if a request to call the author's mother and sisters to testify had been made, the judge would have disallowed it. Accordingly, there is no basis for a finding of a violation of article 14, paragraphs 3 (b) and (e), in respect of the trial.

11.5      As to the author's claim in respect of the delay in the hearing of his appeal, the Committee notes that the author's application for leave to appeal to the Court of Appeal, dated 5 February 1985, indicates that he wished the Court to assign legal aid to him. However, it also appears from the application that the author answered the question whether he had any means to obtain a legal representative himself in the affirmative. On the basis of the information before it, the Committee is unable to ascertain whether or not the delay in the filing of the supplementary grounds of appeal was attributable to the author himself. In this context, the Committee notes that the author has not indicated when he informed the judicial authorities that he did not have the means to privately retain a lawyer and when he learned that legal aid counsel had been assigned to him.

11.6      As to the author's claims under article 14, paragraphs 3 (b), (d) and 5, concerning the conduct of his appeal, the Committee begins by noting that a lawyer was assigned to the author for purposes of his appeal, and that article 14, paragraph 3 (d), does not entitle an accused to choose counsel provided to him free of charge. The Committee further notes that the author's claim that he did not have the opportunity to instruct counsel for the appeal prior to the hearing has not been contested by the State party. In communication No. 248/1987 (Glenford Campbell v. Jamaica), b/ the Committee held that the combined effect of the lawyer's failure to raise objections at the trial in respect of the confessional evidence allegedly obtained through maltreatment, the consequences this failure had on the conduct of the appeal and the lack of an opportunity to instruct counsel for the appeal or to defend himself in person amounted to a denial of effective representation in the judicial proceedings and non-compliance with the requirements of article 14, paragraph 3 (d), of the Covenant. The Committee notes, however, that in the present case the author would not have been allowed, unless special circumstances could be shown, to raise issues on appeal that had not previously been raised by counsel in the course of the trial. In the circumstances, and taking into account that the author's appeal was in fact heard by the Court of Appeal, the Committee finds no violation of article 14, paragraphs 3 (b), (d) and 5, of the Covenant.

11.7      As to the claim under article 14, paragraph 3 (g), juncto article 7, the Committee recalls that the wording of article 14, paragraph 3 (g), that no one shall be "compelled to testify against himself or to confess guilt", must be understood in terms of the absence of any direct or indirect physical or psychological pressure from the investigating authorities on the accused with a view to obtaining a confession of guilt. A fortiori, it is unacceptable to treat an accused person in a manner contrary to article 7 of the Covenant in order to extract a confession. The Committee notes that, in the present case, the author claims that the investigating officer, N. W., threatened to shoot him and forced him to sign a prepared statement; this claim has not been contested by the State party. On the other hand, the Committee notes that N. W. testified during the trial that the author had made his statement after police cautioning. The Committee observes that, in order to reconcile these different versions, the written depositions made and used during the preliminary hearing were required. The Committee further observes that counsel has requested the State party, on several occasions, to make available to him the transcript of the author's preliminary hearing, including the depositions of witnesses, and that finally, after several reminders, he was informed by the judicial authorities that they were unable to locate them. These allegations have not been denied by the State party and therefore due weight must be given to the author's claims. In this respect, therefore, the Committee finds a violation of article 14, paragraph 3 (g), juncto article 7, of the Covenant.

11.8      With regard to the claim that Mr. Berry's prolonged stay and the conditions of detention on death row constitute cruel, inhuman or degrading treatment, the Committee notes that these issues have not been further substantiated. The Committee recalls its jurisprudence that authors must substantiate allegations of violations of their Covenant rights under the Optional Protocol; mere affirmations unbuttressed by substantiating evidence do not suffice. In this case, the author has failed to show that he is the victim of a violation by the State party of article 7 of the Covenant on account of his prolonged detention on death row.

12.       The Committee is of the opinion that the imposition of a sentence of death upon the conclusion of judicial proceedings in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is available, a violation of article 6 of the Covenant. In the instant case, while a constitutional motion to the Supreme (Constitutional) Court might in theory still be available, it would not be an available remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol, for the reasons set out in paragraph 9.2 above. As the Committee observed in its general comment 6 (16), the provision that a death sentence may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that "the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence and the right to review by a higher tribunal". e/ Accordingly, it may be concluded that the final sentence of death was passed without having met the requirements of article 14, and that as a result the right protected by article 6 of the Covenant has been violated.

13.       The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, finds that the facts before it disclose violations of articles 6, 9, paragraphs 3 and 4, 10, paragraphs 1 and 2 (a), and 14, paragraph 3 (g) juncto article 7, of the Covenant.

14.       The Committee is of the view that Mr. Albert Berry is entitled to an appropriate remedy entailing his release. It requests the State party to provide information, within 90 days, on any relevant measures taken by the State party in compliance with the Committee's views.

[Adopted in English, French and Spanish, the English text being the original version.]

Notes

            a/        On 25 September 1992, the Offences against the Person (Amendment) Act 1992 was passed in the Senate. The Act provides for the classification of the cases of persons under sentence of death for murder into "capital" or "non-capital" murder. Classification as "capital" makes the death penalty mandatory; classification as "non-capital" will commute the death sentence to life imprisonment. In the latter case, the court may decide to grant parole after a period not less than seven years. In December 1992, the classification (by a single judge of the Court of Appeal) procedure began; contrary to counsel's expectations, the offence for which Mr. Berry was convicted was classified as a capital offence.

            b/        See Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex IX.D; views adopted on 30 March 1992 at the forty-fourth session, para. 6.6. 

            c/        The review process under the Act is currently stayed pending the outcome of a constitutional motion in another case, which challenges the constitutionality of the classification procedure established by the Act.

            d/        See also the Committee's views in communications Nos. 230/1987 (Raphael Henry v. Jamaica) and 283/1988 (Aston Little v. Jamaica) adopted on 1 November 1991; Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annexes IX.B and J, paras 7.1 et seq.

            e/        Official Records of the General Assembly, Thirty-seventh Session, Supplement No. 40 (A/37/40), annex V, general comment 6 (16), para. 7.

             E. Communication No. 332/1988, Devon Allen v. Jamaica

                 (views adopted on 31 March 1994, fiftieth session)

Submitted by: Devon Allen (represented by counsel)

Victim: The author

State party: Jamaica

Date of communication: 20 October 1988 (initial submission)

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

           Meeting on 31 March 1994,

           Having concluded its consideration of communication No. 332/1988, submitted to the Human Rights Committee on behalf of Mr. Devon Allen under the Optional Protocol to the International Covenant on Civil and Political Rights,

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

           Adopts its views under article 5, paragraph 4, of the Optional Protocol.

1.        The author of the communication is Devon Allen, a Jamaican citizen born in 1962, currently awaiting execution at St. Catherine District Prison, Jamaica. He claims to be a victim of violations by Jamaica of articles 6, paragraph 5, 7, 9, paragraphs 2 and 3, 10, and 14, paragraphs 3 (b), (c), (d) and (e) of the International Covenant on Civil and Political Rights. He is represented by counsel. The crime of which the author was convicted has been classified as a capital offence under the Offences Against the Person (Amendment) Act 1992.

The facts as submitted by the author

2.1      Devon Allen was arrested on 18 August 1982, while he was in hospital recovering from injuries sustained in a shooting incident. He was charged with the murder, on 26 September 1980, i.e., nearly two years earlier, of one W. H. He was tried in the Home Circuit Court of Kingston between 10 and 17 May 1983, found guilty as charged and sentenced to death. On 10 November 1983, the Court of Appeal of Jamaica dismissed his appeal. The Court of Appeal did not issue a reasoned judgement but merely a "Note of Oral Judgement", also dated 10 November 1983. A further application for special leave to appeal to the Judicial Committee of the Privy Council has not been filed.

2.2      The evidence presented against Mr. Allen was that on 26 September 1980 at about 1.30 a.m., two men went to W. H.'s house in Kingston, climbed onto a roof, jumped into the yard and approached the room where W. H. was sleeping. The wife of W. H. testified that one of the men shot her husband through the half-open window; both men then broke into the house, took the television set and ran off. This was reported to the police the following morning.

2.3      During the trial, W. H.'s wife and her son, who was eight years old when the crime was committed, testified as the prosecution's principal witnesses. Both identified the author as the man who had shot W. H. Mrs. H. testified that she had known the author for several years, but under his nickname "Dap-si-Do" only. She further contended that eight days after the crime, the author had returned to her house and that, subsequently, she had occasionally seen him walking around the area.

2.4      The author denied responsibility for the shooting of W. H., claiming that he was not in the neighbourhood on the night in question and that his nickname was not "Dap-si-Do" but "Windward". He notes that the arresting officer at the hospital asked him whether he was "George Green, known as Dap-si-Do". Counsel further encloses an affidavit signed in May 1988 by the author's brother, Steve Allen, in which he indicates that in his presence and that of a person investigating the circumstances of W. H.'s death, one B. N. admitted having shot W. H. on the night in question. This was brought to the attention of the Attorney-General's Office, but the case was not reopened, as B. N. had gone into hiding and could no longer be located by the police.

2.5      In respect of the requirement of exhaustion of domestic remedies, counsel contends that delays encountered in the case justify the conclusion that domestic remedies have been "unreasonably prolonged" within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. He contends that a petition for special leave to appeal to the Judicial Committee of the Privy Council based on the issue of delay would inevitably fail, because of the similarities between the author's case and that of another Jamaican citizen, Howard Martin, whose petition was dismissed by the Privy Council on 11 July 1988. a/ Besides, leading counsel has advised that there are no proper grounds to argue a petition for special leave to appeal to the Judicial Committee.

2.6      Still in the context of domestic remedies, counsel refers to the Privy Council's jurisprudence (judgement in the case of Riley et al. v. Attorney-General of Jamaica), which holds that whatever the reasons for, or length of, delays in executing a sentence of death lawfully imposed, such delays can afford no ground for holding the execution to be in contravention of section 17 of the Jamaican Constitution. He observes that the Court of Appeal and the Supreme Constitutional Court of Jamaica would consider themselves to be bound by this jurisprudence, and that no decision in the case could be taken unless and until an appeal to the Judicial Committee of the Privy Council were allowed or made. According to counsel, the pursuit of remedies under the Jamaican Constitution and thereafter to the Judicial Committee would take many years.

The complaint

3.1      The author contends that he did not receive a fair and impartial trial. Thus, in relation to article 14, paragraph 3 (e), the trial transcript reveals that no witnesses were called on his behalf and no evidence was adduced against his claim that he was not known by the nickname "Dap-si-Do" but instead "Windward". Nor was there any evidence to rebut his statement that from 26 September 1980 until his arrest nearly two years later, he remained in the area working as a barman, without ever being questioned about W. H.'s death. Without further elaborating on his claim under article 14, paragraphs 3 (b) and (d), he submits that legal assistance available to individuals charged with criminal offences in Jamaica is such that witnesses are rarely traced and expert witnesses are hardly ever subpoenaed.

3.2      The author further alleges a violation of article 14, paragraph 3 (c) (and subsidiarily of article 9, paras. 2 and 3) because of the judicial and administrative delays in the case, and argues that a delay of five years b/ in the execution of the sentence constitutes "cruel and inhuman treatment" in violation of article 7 of the Covenant.

3.3      Finally, counsel argues that the State party may have violated article 6, paragraph 5, of the Covenant, since the author testified, during the trial in May 1983, that he was 20 years old. Accordingly, it may be that he was under the age of 18 when the offence was committed.

The State party's information and observations

4.        In its submissions under rule 91 of the rules of procedure, the State party contended that the communication was inadmissible because of non-exhaustion of domestic remedies, since the author had failed to petition the Judicial Committee of the Privy Council for special leave to appeal, pursuant to section 110 of the Jamaican Constitution.

The Committee's decision on admissibility

5.1      During its 44th session, the Committee considered the admissibility of the communication. With respect to the requirement of exhaustion of domestic remedies, it noted that the Court of Appeal of Jamaica had not issued a reasoned judgement in the case but confined itself to delivering a "Note of Oral Judgement". While taking note of the State party's contention that the Judicial Committee may hear petitions for leave to appeal even in the absence of a written judgement of the Court of Appeal, the Committee considered, basing itself on its jurisprudence, c/ that the Judicial Committee could not, in its practice, entertain petitions for leave to appeal which are not corroborated by a reasoned judgement of the Court of Appeal of Jamaica. In the circumstances, the Committee found that a petition to the Judicial Committee did not constitute a remedy that was both available and effective within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.

5.2      In respect of the author's claim under article 7, the Committee observed that the characterization of prolonged detention on death row as cruel, inhuman and degrading treatment had not been placed before the Jamaican courts and that, accordingly, domestic remedies had not been exhausted.

5.3      As to the author's allegations under articles 6, paragraph 5, and 14, paragraphs 3 (c) and (e), the Committee considered that they had been substantiated and that they deserved consideration on the merits. The author's remaining allegations were not considered substantiated, for purposes of admissibility.

5.4      On 20 March 1992, therefore, the Committee declared the communication admissible in so far as it appeared to raise issues under articles 6, paragraph 5, and 14, paragraphs 3 (c) and (e), of the Covenant; it reserved the right to review its decision in respect of the author's claim under article 6, paragraph 5, of the Covenant.

The State party's further observations and request for review of admissibility and counsel's comments

6.1      In a submission dated 2 September 1992, the State party observes that there was no violation of article 6, paragraph 5, in the author's case: the birth certificate shows that the author was born on 21 June 1962 and that, accordingly, he was no longer a juvenile at the time of the commission of the offence (26 September 1980).

6.2      The State party reiterates that the communication is inadmissible on the ground of failure of exhaustion of domestic remedies, and that the author may petition the Judicial Committee of the Privy Council even in the absence of a written judgement of the Court of Appeal, under rules 3 and 4 of the rules of procedure of the Judicial Committee.

6.3      As to the claims under article 14, paragraphs 3 (c) and (e), the State party adds that it would further be open to the author to seek redress for an alleged breach of his rights under section 20 of the Jamaican Constitution, pursuant to section 25 thereof. The State party observes that the author has "in no way substantiated allegations [that] witnesses in his favour were not called and that the issue of whether he was correctly identified was not properly explored". In the State party's opinion, the issue of correct identification is one of evidence, the review of which is the function of an appellate court and not, save in exceptional circumstances, within the competence of the Committee.

7.1      In his comments, counsel concedes that Mr. Allen was an adult when the crime was committed.

7.2      Counsel affirms that the author does not have the means to instruct a lawyer to file a constitutional motion on the issue of delay and/or any other irregularity under the Jamaican Constitution. The Poor Prisoners' Defence Act does not provide for legal aid for this purpose, and no lawyer in Jamaica has been willing to file a motion on the author's behalf on a pro bono basis. Counsel reiterates that even if the author were in the position to file such a motion, Jamaican courts would consider themselves bound by the Riley precedent (see para. 2.6 above).

7.3      As to the availability of a petition for special leave to appeal to the Privy Council, counsel recalls that the Privy Council does not act as a simple appellate court, and that it will only grant leave to appeal upon evidence that a substantial miscarriage of justice has occurred. Simple misdirections (to the jury) by a judge are not sufficient. It is therefore submitted that there are no grounds on which to petition the Judicial Committee (see para. 2.5 above).

7.4      Finally, counsel reiterates that the delays in the judicial proceedings did not arise as a consequence of the author exercising his rights of appeal, but solely as a result of "maladministration" by the State party.

Review of admissibility and consideration of the merits

8.1      The Committee has taken note of the State party's further arguments on admissibility and of counsel's further information regarding the availability of constitutional remedies in Mr. Allen's case.

8.2      With regard to the State party's contention that constitutional remedies are still open to Mr. Allen, the Committee recalls that domestic remedies within the meaning of the Optional Protocol must be both available and effective. The Committee considers that, in the absence of legal aid provided by the State party and given that the author has not been able to secure legal assistance for this purpose, a constitutional motion does not, in the circumstances of the instant case, constitute an available remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol, which the author must exhaust. The Committee, therefore, finds no reason to revise its decision on admissibility.

8.3      The Committee has considered the claims raised in the communication in the light of all the written information provided by the parties. In respect of the allegation of a violation of article 6, paragraph 5, the Committee observes that the State party has conclusively shown, and counsel conceded, that Mr. Allen was an adult when the crime of which he was convicted was committed. Accordingly, the Committee concludes that there has been no violation of article 6, paragraph 5.

8.4      The author contends that he did not have a fair trial within the meaning of article 14 of the Covenant, although he does not claim that the court was not impartial or the jury biased. Thus, he claims that no evidence was adduced by the prosecution to rebut his claim that he was not known by the nickname "Dap-si-Do" but as "Windward". He further observes that no evidence was put forth to rebut his testimony that from 26 September 1980 until his arrest in August 1982, he remained in the area working as a barman, without ever being questioned about W. H.'s death. The Committee observes that these claims essentially relate to the evaluation of the evidence by the domestic court. In this respect, it reiterates that it is generally for the appellate courts of States parties to the Covenant to evaluate the facts and evidence in a particular case, unless it is clear that the judge's instructions to the jury were arbitrary or amounted to a denial of justice, or that the judge violated his obligation of impartiality. After careful consideration of the material before it, the Committee concludes that the trial did not suffer from such defects. Accordingly, there is no violation of article 14, paragraph 1, in this respect.

8.5      The author alleges that the preparation and presentation of his defence were deficient, in that no witnesses were called on his behalf. More generally, he contends that legal assistance available to individuals charged with criminal offences in Jamaica is such that witnesses are rarely traced or subpoenaed (see para. 3.1 above). In respect of these claims, which were subsumed under article 14, paragraph 3 (e), in the admissibility decision of 20 March 1992, the Committee notes that the material before it does not disclose that either the author or his counsel complained to the judge that facilities for the preparation of the defence had been inadequate. Nor is there an indication that counsel decided not to call witnesses on Mr. Allen's behalf other than in the exercise of his professional judgement or that, if a request to call witnesses was made, the judge disallowed it or would have disallowed it. In the circumstances, the Committee finds no violation of article 14, paragraph 3 (e).

8.6      The analysis of the author's communication reveals that he has made two complaints in respect of the issue of delay. His initial complaint that a delay of five years in the execution of the sentence of death constitutes cruel, inhuman and degrading treatment within the meaning of article 7 of the Covenant was declared inadmissible in the Committee's admissibility decision of 20 March 1992. The author's subsequent claim, relating to administrative and judicial delays, was found admissible in respect of article 14, paragraph 3 (c). However, the substance of this claim has remained unclear, and no material in support of it has been placed before the Committee. In the circumstances, the Committee finds no violation of article 14, paragraph 3 (c).

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 disclose a violation of any of the provisions of the Covenant.

[Adopted in English, French and Spanish, the English text being the original version].

Notes

           a/        On 24 March 1993, the Human Rights Committee adopted its views in respect of Mr. Martin's communication, finding no violations of the Covenant (see Official Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/40), annex XII.J. Although the Judicial Committee of the Privy Council also dismissed Mr. Martin's petition, it expressed concern about the judicial delays encountered in the case.

           b/        That is, at the time of submission of the communication (October 1988).

           c/        Official Records of the General Assembly, Forty-sixth Session, Supplement No. 40 (A/46/10), annex XI.D, communication No. 253/1987 (Paul Kelly v. Jamaica), views adopted on 8 April 1991, paras. 4.1 and 5.3.

           F. Communication No. 333/1988, Lenford Hamilton v. Jamaica

               (views adopted on 23 March 1994, fiftieth session)

Submitted by: Lenford Hamilton (represented by counsel)

Alleged victim: The author

State party: Jamaica

Date of communication: 7 November 1988 (initial submission)

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

           Meeting on 23 March 1994,

           Having concluded its consideration of communication No. 333/1988, submitted to the Human Rights Committee on behalf of Mr. Lenford Hamilton 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 its views under article 5, paragraph 4, of the Optional Protocol.

1.        The author of the communication is Lenford Hamilton, a Jamaican citizen under sentence of death, detained at St. Catherine District Prison, Jamaica. He claims to be a victim of violations by Jamaica of articles 7 and 14 of the International Covenant on Civil and Political Rights. He is represented by counsel.

The facts as submitted by the author

2.1      The author was convicted for the shooting and killing of a policeman, Caswell Christian, on 27 February 1981 in the parish of St. Catherine. The deceased and other police officers were in the process of searching a number of houses in the ghetto area of Tawes Pen when he was shot from behind a curtain in the living room of an apartment that was being searched. It was submitted that at least two police officers had seen the author running away from the block of apartments where the shooting had taken place. The author indicates that he was not arrested until almost 17 months later, on 23 July 1982. He claims that he was not placed on an identification parade and that he was identified by confrontation only.

2.2      The author was tried in the Home Circuit Court, Kingston, from 15 to 17 November 1983. From the trial transcript, it transpires that the police officers who had arrested the author at the Central Police Station had not themselves identified the author at the scene of the crime but merely relied on the reports filed by two other police officers. One of these officers testified during the trial that he had not been able to see the face of the accused for more than a "split second".

2.3      Upon conclusion of the trial, the author was found guilty as charged and sentenced to death. He appealed to the Court of Appeal of Jamaica, which heard and dismissed the appeal on 14 January 1986. The author has since manifested his desire to file a petition for special leave to appeal with the Judicial Committee of the Privy Council, but has been unable to do so, as the Court of Appeal did not issue a reasoned judgement.

2.4      On 7 November 1988, a warrant for the execution of the author on 15 November 1988 was issued. On 14 November 1988, he was given a stay of execution, pending the outcome of representations to the Judicial Committee of the Privy Council on his behalf.

The complaint

3.        The author claims to be a victim of a violation of article 7 of the Covenant, on account of the length of time spent on death row, and of article 14, because of the Court of Appeal's failure to issue a reasoned judgement.

The State party's information and observations

4.1      In submissions dated 3 March and 7 July 1989 and 21 February 1990, the State party argues that the communication is inadmissible on the ground of non-exhaustion of domestic remedies, because the author had not yet applied to the Judicial Committee of the Privy Council for special leave to appeal.

4.2      As to the author's contention that he was prevented from filing a petition for special leave to appeal because of the absence of a reasoned judgement of the Court of Appeal, the State party argues that this statement has no basis in law or practice. It observes in this context that the Judicial Committee (General Appellate Jurisdiction) Rules Order 1982 does not stipulate that a written judgement of the Court of Appeal is a necessary prerequisite for a petition for special leave to appeal and that, in practice, the Judicial Committee has heard several petitions in the absence of a written judgement.

4.3      The State party further submits that the Court of Appeal did not issue a reasoned judgement in the author's case since it was not then the practice of the Court to do so in appeals considered to be unmeritorious.

The Committee's decision on admissibility

5.1      During its forty-fourth session in March 1992, the Committee considered the admissibility of the communication. It noted that the Court of Appeal of Jamaica had still not issued a written judgement in the author's case, although the appeal had been dismissed more than six years earlier. It concluded that in the circumstances, the application of domestic remedies had been unreasonably prolonged within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.

5.2      As to the author's allegation of a violation of article 7 of the Covenant, the Committee considered that the author had failed to substantiate this claim, for purposes of admissibility, and concluded that Mr. Hamilton had no claim within the meaning of article 2 of the Optional Protocol.

5.3      Inasmuch as the author's claims related to the evaluation of the evidence against him by the Home Circuit Court in Kingston, the Committee, by reference to its established jurisprudence, a/ considered that this part of the communication was inadmissible under article 3 of the Optional Protocol.

5.4      Finally, the Committee considered that the Court of Appeal's failure to issue a written judgement could raise issues under article 14, paragraphs 3 (c) and 5, which should be considered on the merits; accordingly, on 20 March 1992, it declared the communication admissible in respect of article 14, paragraphs 3 (c) and 5, of the Covenant.

The State party's request for a review of admissibility and counsel's comments

6.1      In a submission dated 11 February 1993, the State party reiterates that it considers the communication inadmissible on the ground of non-exhaustion of domestic remedies. It observes that Mr. Hamilton's counsel is presently in the process of pursuing two domestic remedies available to his client: firstly, a criminal appeal to the Judicial Committee of the Privy Council and, secondly, an application to the Governor-General under section 29 (1) of the Judicature (Appellate Jurisdiction) Act to have the author's case remitted to the Court of Appeal for a re-hearing. The State party submits that it is "clear that these are domestic remedies available to the author, which must be exhausted before the Committee is competent to examine the case".

6.2      The State party further argues that the author may still seek redress under section 25 of the Constitution for any alleged violation of his constitutional rights; in this context, it is noted that the right in article 14, paragraph 3 (c), of the Covenant is similar to the right protected under section 20, paragraph 1, of the Jamaican Constitution.

7.1      In his comments, counsel complains that the State party has failed to address the merits of the claims under article 14, paragraphs 3 (c) and 5. He observes that the Government of Jamaica has not made available legal aid to Mr. Hamilton to pursue his application to the Governor-General pursuant to section 29 (1) of the Judicature (Appellate Jurisdiction) Act; this remedy is not therefore available to him in practice. Similarly, no legal aid has been made available under section 25 of the Jamaican Constitution and, accordingly, this remedy is not available to Mr. Hamilton in practice either.

7.2      Counsel notes that the Court of Appeal of Jamaica heard Mr. Hamilton's application under section 29 (1) between 29 September and 1 October 1993, when judgement was reserved. To date, no judgement has been given. Counsel contends, however, that the issues that were considered by the Court of Appeal of Jamaica under section 29 (1) were entirely different from those submitted to the Human Rights Committee for consideration.

7.3      Finally, counsel observes that a Notice of Intention to apply for special leave to appeal (in forma pauperis) to the Judicial Committee could be filed without necessarily attaching a copy of the reasoned judgement of the Court of Appeal. He adds that in practice, however, the case could never be argued before the Judicial Committee without such reasons being made available to it. In this context, he recalls that an appeal to the Judicial Committee is against the "judgement" of the Court of Appeal.

Review of admissibility and considerations of merits

8.1      The Committee has taken note of the parties' arguments made in respect of admissibility. It takes the opportunity to expand on its admissibility findings.

8.2      Concerning a re-hearing of the author's case under section 29 (1) of the Judicature (Appellate Jurisdiction) Act, the Committee notes that although the author was not assigned legal aid for the purpose, he secured legal representation for it. This is evidenced by the State party's own submission of 11 February 1993 and conceded by counsel, who points to the fact that the Court of Appeal indeed did re-hear the case between 29 September and 1 October 1993. However, as counsel indicates, the issues before the Court of Appeal differ from those before the Committee, as the re-hearing concerned the re-evaluation of evidence in the case, an aspect in respect of which the communication before the Committee was declared inadmissible under article 3 of the Optional Protocol. An application pursuant to section 29 (1) of the Judicature (Appellate Jurisdiction) Act therefore is not a remedy the author is required to exhaust for purposes of the Optional Protocol, in this particular communication.

8.3      Similar considerations apply to the possibility of a petition for special leave to appeal to the Judicial Committee of the Privy Council. On the basis of the information before the Committee, it would appear that the author's case falls into the category of "fleeting glance identification", for which the Judicial Committee established precise rules and guidelines in a judgement of July 1989. b/  However, even if it could be argued that the directions of the Jamaican courts on the "fleeting glance" identification of Mr. Hamilton did not meet the guidelines established by the Judicial Committee, it is not this issue which is before the Human Rights Committee; furthermore, the absence of a reasoned judgement of the Court of Appeal is likely to prevent the author from successfully arguing his petition before the Judicial Committee although the availability of the judgement is not a precondition for lodging an application for special leave to appeal. The Committee is aware that the Judicial Committee has indicated that it can review an appeal even in the absence of a written judgement. But, as the Judicial Committee itself has noted in the recent judgement of Earl Pratt and Ivan Morgan v. Attorney-General, c/ it is in practice "necessary to have the reasons of the Court of Appeal at the hearing of the application for special leave to appeal, as without them it is not usually possible to identify the point of law or serious miscarriage of justice of which the appellant complains". Under the Committee's jurisprudence, a remedy must be effective, as well as formally available. An appeal on the merits would thus necessarily require a written judgement. Accordingly, the Committee finds that it is unnecessary, in order to exhaust local remedies, to petition the Judicial Committee for special leave to appeal in the absence of a reasoned written judgement.

8.4      As to the possibility of filing a constitutional motion pursuant to section 25 of the Jamaican Constitution, it is uncontested that no legal aid is available for the purpose. As the author would have to rely on the provision of legal aid, the Committee considers that in the absence of legal aid, a constitutional motion does not, in the circumstances of the case, constitute an available and effective remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.  Accordingly, the Committee has no reason to review its decision of admissibility of 20 March 1992.

9.1      It remains for the Committee to decide whether the failure of the Jamaican Court of Appeal to issue a reasoned written judgement violated the author's rights under article 14, paragraphs 3 (c) and 5. Article 14, paragraph 5, guarantees the right of convicted persons to have the conviction and sentence reviewed by a "higher tribunal according to law". The Committee, having noted that the failure to issue a reasoned written judgement has effectively prevented the availability of a further remedy, also finds that the author's right, under article 14, paragraphs 3 (c) and 5, to be tried without undue delay and to have his sentence reviewed by a higher tribunal according to law, has been violated.

9.2      The Committee is of the opinion that the imposition of a sentence of death upon conclusion of judicial proceedings in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is available, a violation of article 6 of the Covenant. As the Committee observed in its general comment 6(16), the provision that a sentence of death may only be imposed in accordance with the law and not contrary to the provisions of the Covenant implies that "the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence and the right to review by a higher tribunal". d/ In the instant case, since the final sentence of death was passed and an important requirement under article 14 was not met, it must be concluded that the right protected under article 6 of the Covenant was violated.

9.3      The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 14, paragraphs 3 (c) and 5, and consequently of article 6 of the Covenant.

10.      In capital punishment cases, the obligation of States parties to observe rigorously all the guarantees for a fair trial set out in article 14 of the Covenant admits of no exception. The Committee is of the view that Mr. Lenford Hamilton, victim of a violation of article 14, paragraphs 3 (c) and 5, and consequently of article 6, is entitled, pursuant to article 2, paragraph 3 (a), of the Covenant, to an effective remedy entailing his release; the State party is under an obligation to ensure that similar violations do not occur in the future.

11.      The Committee would wish to receive information, within 90 days, on any relevant measures taken by the State party in respect of the Committee's views.

[Adopted in English, French and Spanish, the English text being the original version.]

Notes

           a/        See, for example, Official Records of the General Assembly, Forty-sixth Session, Supplement No. 40 (A/46/40), annex XII.E, communication No. 304/1988, (D. S. v. Jamaica) declared inadmissible on 11 April 1991, paragraph 5.2.

           b/        Oliver Whylie et al. v. the Attorney-General of Jamaica.

           c/        Judicial Committee of the Privy Council, judgement of 2 November 1993, p. 8.

           d/        Official Records of the General Assembly, Thirty-seventh Session, Supplement No. 40 (A/37/40), annex V, general comment 6(16), para. 7).

           G. Communication No. 352/1989, Dennis Douglas, Errol Gentles

               and Lorenzo Kerr v. Jamaica (views adopted on

               19 October 1993, forty-ninth session)

Submitted by: Dennis Douglas, Errol Gentles and Lorenzo Kerr

                        (represented by counsel)

Alleged victims: The authors

State party: Jamaica

Date of communication: 9 March 1989 (initial submission)

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

           Meeting on 19 October 1993,

           Having concluded its consideration of communication No. 352/1989, submitted to the Human Rights Committee by Messrs. Dennis Douglas, Errol Gentles and Lorenzo Kerr 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, their counsel and the State party,

           Adopts its views under article 5, paragraph 4, of the Optional Protocol.

The facts as submitted by the authors

1.        The authors of the communication are Errol Gentles, Lorenzo Kerr and Dennis Douglas, three Jamaican citizens awaiting execution at St. Catherine District Prison, Jamaica. They claim to be victims of violations of their human rights by the Government of Jamaica. They are represented by counsel.

2.1      The authors were charged with the murder, on 30 August 1980 in the Parish of Clarendon, of one Howard Campbell. They were tried in the Clarendon District Court, found guilty as charged and sentenced to death on 10 April 1981. On 14 April 1983, the Jamaican Court of Appeal dismissed their appeal. A petition for special leave to appeal to the Judicial Committee of the Privy Council was dismissed on 6 October 1988.

2.2      According to the authors, Howard Campbell was sitting on a bench by the roadside in the village of Woodside, Clarendon, when a van with armed men passed through the village. These men, together with two motor-cyclists, began to molest and attack the villagers. The prosecution contended that the raiders had acted with intention to kill. In particular, they caught the deceased, beat and stabbed him to death. Furthermore, as the attack occurred during the campaign for a general election, it was suggested that it could have had political overtones.

2.3      The authors denied having taken part in the raid and testified that they had been elsewhere when the crime occurred. In particular, Mr. Gentles' uncle supported his alibi defence, testifying that he had been home with him at the time in question. The authors claim that no identification parade was held following their arrest. In this connection, Lorenzo Kerr and Errol Gentles claimed, in their petition for special leave to appeal to the Privy Council, that identification evidence was central to their case. They alleged that three police constables who testified during the trial were invited by the prosecution to identify them from the dock; this, however, happened seven months after the murder. Thus, the principal ground of appeal was that the judge, in his summing-up to the jury, misdirected the jurors on the issue of identification evidence and permissibility of dock identification, and that he erred in not pointing out the dangers inherent in such methods of identification. Moreover, they argued that the judge, in reviewing the identification evidence, did not remind the jury that, during the preliminary inquiry, one of the constables who testified against them had not stated that he had seen the authors stabbing the deceased.

2.4      The Court of Appeal, when dealing with the issue of identification evidence, rejected the authors' argument and observed: "In our view, the learned trial judge in directing the jury on the dangers inherent in visual identification had in mind R. v. Whylie. The language of the directions is the language of that case." The authors object to this reasoning and contend that the dangers inherent in dock identification are recognized by the courts in most Commonwealth countries.

2.5      For Mr. Dennis Douglas, it is claimed that the judge erred in not putting the issue of manslaughter to the jury. Without an alternative manslaughter verdict to consider, the jury was bound to convict him of murder after rejecting his alibi defence.

2.6      In a further submission from the authors, dated 11 August 1989, it is stated that the authors were victims of a miscarriage of justice, in that the police did not place them on an identification parade. It is further submitted that they did not have an opportunity to consult with their court-appointed lawyers.

The complaint

3.        Although the authors do not invoke any of the provisions of the International Covenant on Civil and Political Rights, it appears from their submissions that they claim to be victims of a violation by Jamaica of article 14 of the Covenant.

4.1      Counsel's submission of 10 February 1993 contains several fresh allegations which the Human Rights Committee is precluded from considering, since they were formulated after the Committee, on 15 March 1990, declared the communication admissible in so far as it appeared to raise issues under article 14, paragraphs 3 (b) and (d) and 5, of the Covenant.

4.2      With regard to a violation of article 14, paragraphs 3 (b) and (d), counsel submits that each author was denied adequate legal representation for their trial in that:

           (a)       All three were represented by the same junior counsel, Mr. J. H., and leading counsel, Mr. N. E. QC;

           (b)      Junior counsel was also representing the fourth co-defendant in the same trial;

           (c)       Until the first day of the trial, N. E. and J. H., together with another attorney, were also representing the fifth co-defendant. Only prior to the empanelling of the jury, this co-defendant requested to be solely represented by the other attorney.

4.3      Furthermore, the amount of time allocated to each of the authors for the preparation of the trial is said to have been insufficient for them and their representatives to prepare the defence in any meaningful way. Sufficient time was particularly important as the trial involved the preparation of complex cross-examination on the issue of identification. Moreover, the preparation of the authors' defence is said to have been prejudiced by the State party's failure to provide them or their legal representatives with the prosecution statements at a sufficiently early stage before the trial, or at all.

           Thus, with regard to Dennis Douglas' case, it is submitted that he only met with junior counsel on two occasions prior to the trial. During the first meeting in prison, the author was allegedly denied privacy and therefore could not adequately instruct counsel. Leading counsel attended only the second meeting, which took place immediately prior to the preliminary hearing on 16 October 1989, and which lasted 20 minutes. The only other opportunity to give instructions and discuss the case with his legal representatives took place at the court for five minutes each day during the trial, before the hearing started. It is further submitted that Mr. Douglas was first made aware of the prosecution case against him during the preliminary enquiry, some five months after his arrest, and that it is not clear whether he was ever shown or asked to comment on the prosecution statements prior to the trial.

           Lorenzo Kerr submits that although counsel promised to try to obtain the prosecution statements, he was never shown or asked to comment on them prior to the trial.

           As to Errol Gentles' case, it is submitted that he first met with counsel at the preliminary enquiry, for a brief interview, and that he then first learned of the prosecution case against him. He had no further meetings with either leading or junior counsel prior to the trial. It is further submitted that it is unclear whether he was ever shown or asked to comment on the prosecution statements prior to the trial.

4.4      Counsel concludes that the fact that one leading and one junior counsel (who initially represented five co-defendants) were assigned to represent all three authors prejudiced their case, since their instructions could not be adequately taken prior to and during the trial, nor could their cases be adequately presented.

4.5      As to the preparation of the appeal to the Jamaican Court of Appeal, it is submitted that the authors were not granted any privacy when consulting their legal representatives, and that the consultations were limited to 20 minutes.

4.6      Finally, counsel submits that the State party's failure to make legal aid available to the authors to pursue a constitutional motion under sections 20 and 25 of the Jamaican Constitution amounts to a violation of article 14, paragraph 5, of the Covenant. In this context, reference is made to paragraph 8.4 of the Committee's views in Communication No. 230/1987 (Raphael Henry v. Jamaica) a/, where the Committee found that the words "according to law" in article 14, paragraph 5, mean that if domestic law provides for further instances of appeal, the convicted person must have effective access to each of them.

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

5.1      In its submission of 20 July 1989, the State party contends that the communication is inadmissible on the ground of non-exhaustion of domestic remedies, as required by article 5, paragraph 2 (b), of the Optional Protocol. Although the authors' petitions for leave to appeal to the Judicial Committee of the Privy Council have been dismissed, the authors could still avail themselves of constitutional remedies.

5.2      In his comments, counsel denies that constitutional remedies remain open to his clients and submits that the authors cannot afford to retain a lawyer for the purposes of a constitutional motion. Furthermore, there is no provision in the Poor Prisoners' Defence Act for legal aid for that particular purpose; the Jamaica Council for Human Rights had made considerable but unsuccessful efforts to retain lawyers on a pro bono basis. Counsel contends that if a constitutional remedy is theoretically available to the authors, in practice this is not the case.

The Committee's decision on admissibility

6.1      During its thirty-eighth session, in March 1990, the Committee considered the admissibility of the communication. It took note of the State party's contention that the communication was inadmissible because of the authors' failure to pursue constitutional remedies. In the circumstances of the case, the Committee considered that recourse to the Constitutional Court under section 25 of the Jamaican Constitution was not a remedy available to the authors within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.

6.2      The Committee further considered that some of the authors' allegations pertained to the issue of the adequacy of the judge's instructions to the jury, in particular to the issue of the treatment of identification evidence and the possibility of a manslaughter verdict. The Committee reiterated that it is, in principle, beyond its competence to review specific instructions to the jury by the judge, unless it can be ascertained that the instructions to the jury were clearly arbitrary or amounted to a denial of justice, or that the judge clearly violated his obligation of impartiality. In the circumstances, the Committee found that the judge's instructions did not suffer from such defects.

6.3      On 15 March 1990, the Committee declared the communication admissible in respect of article 14, paragraphs 3 (b) and (d) and 5, of the Covenant.

The State party's objections to the admissibility decision and counsel's comments thereon

7.1      In a submission of 6 February 1991, the State party requests the Committee to review its decision on admissibility.

7.2      The State party submits that nothing in the Optional Protocol or in customary international law supports the contention that an individual is relieved of the obligation to exhaust domestic remedies on the mere ground that there is no provision for legal aid and that his indigence has prevented him from resorting to an available remedy. It is submitted that the Covenant only imposes a duty to provide legal aid in respect of criminal offences (art. 14, para. 3 (d)). Moreover, international conventions dealing with economic, social and cultural rights do not impose an unqualified obligation on States to implement such rights: article 2 of the International Covenant on Economic, Social and Cultural Rights provides for the progressive realization of economic rights and relates to the "capacity of implementation of States". In the circumstances, the State party argues that it is incorrect to infer from the authors' indigence and the absence of legal aid for constitutional motions that the remedy is necessarily non-existent or unavailable.

8.1      In his submission of 10 February 1993, counsel comments on the State party's request for review of the admissibility decision, pointing out that the authors were arrested in 1980, tried and convicted in 1981, and that the Jamaican Court of Appeal dismissed their appeal in 1983. It is submitted that a further appeal to the Supreme (Constitutional) Court would, in the circumstances of the case, entail an unreasonable prolongation of the application of domestic remedies.

8.2      Counsel further submits that a constitutional motion in the Supreme (Constitutional) Court of Jamaica would fail, in the light of the precedent set by the Judicial Committee's decisions in DPP v. Nasralla b/ and Riley et al. v. Attorney General of Jamaica c/, where it was held that the Jamaican Constitution was intended to prevent the enactment of unjust laws and not merely unjust treatment under the law.

8.3      As to the State party's contention that nothing in the Optional Protocol or in customary international law supports the contention that a person is relieved of the obligation to exhaust local remedies on the ground that there is no provision for legal aid and that his indigence has prevented him from utilizing an available remedy, it is submitted that such requirement must be deemed to exist particularly in countries where indigence and poverty are common, and where those who can afford legal representation are few and far between. To do otherwise would make the provisions relating to the exhaustion of domestic remedies empty and meaningless. It cannot have been the intention of those who drafted the Optional Protocol that a State party can claim non-exhaustion where such is mainly attributable to that State party's failure to provide the author with the financial means to do so. To decide otherwise would make article 2 of the Covenant meaningless. Pursuant to that article, State parties undertake to guarantee the rights in the Covenant "without distinction of any kind, such as ... property ... or another status". To effectively limit the constitutional remedies to those who can afford the legal fees would be incompatible with the wording of the provision and the rights which the Covenant seeks to secure "without distinction of any kind".

Reconsideration of admissibility issues and examination of the merits

9.1      The Committee has taken note of the State party's request to review its decision on admissibility, as well as its criticism of the reasoning leading to the decision of 15 March 1990. It takes the opportunity to explain its admissibility findings.

9.2      The Committee notes that the Supreme Court of Jamaica has, in recent cases, allowed applications for constitutional redress in respect of breaches of fundamental rights, after the criminal appeals in these cases had been dismissed. However, it also notes that, in the instant case as well as in other cases, d/ the State party indicates that legal aid is not provided for constitutional motions, and that it has no obligation under the Covenant to make legal aid available in respect of such motions, as they do not involve the determination of a criminal charge, as required under article 14, paragraph 3 (d), of the Covenant. In the view of the Committee, this supports the finding, made in its decision on admissibility, that a constitutional motion is not an available remedy for an author who has no means of his own to pursue it. In this context, the Committee observes that the authors do not claim that they are absolved from pursuing constitutional remedies because of their indigence; rather it is the State party's unwillingness or inability to provide legal aid for the purpose that renders the remedy one that need not be pursued for purposes of the Optional Protocol. As to the State party's argument that international conventions dealing with economic, social and cultural rights do not impose an unqualified obligation on States to implement such rights, the Committee observes that the question of whether remedies remain available to the author within the meaning of article 5, paragraph 2 (b), of the Optional Protocol is entirely distinct from and has no bearing on the issue of progressive realization of economic, social and cultural rights.

9.3      The Committee further observes that the authors were arrested in 1980, tried and convicted in 1981, and that their appeal was dismissed in 1983. The Committee deems that for purposes of article 5, paragraph 2 (b), of the Optional Protocol, the pursuit of constitutional remedies would, in the circumstances of the case, entail an unreasonable prolongation of the application of domestic remedies. Accordingly, there is no reason to revise the decision on admissibility of 15 March 1990.

10.1 The Committee notes with regret the absence of cooperation from the State party, which has not made any submission on the substance of the matters under consideration. It is implicit in article 4, paragraph 2, of the Optional Protocol, that a State party should make available to the Committee all the information at its disposal; this is so even where the State party objects to the admissibility of the communication and requests the Committee to review its admissibility decision, as requests for a review of admissibility are examined by the Committee in the context of the consideration of the merits of a case, pursuant to rule 93, paragraph 4, of the rules of procedure.

10.2 The Committee also takes the opportunity to express concern about the fact that counsel, in spite of two reminders, submitted his comments on the State party's submission two years after its receipt and only substantiated the claims almost three years after the adoption of the decision on admissibility. Paragraph 8 (d) of the Committee's decision on admissibility in the case provides that: "Any explanations or statements received from the State party shall be communicated ... to the authors and their counsel ... with the request that any comments that they may wish to submit thereon should reach the Human Rights Committee ... within six weeks of the date of the transmittal". While the submission of any comments is left to the discretion of the authors and their counsel, the Committee considers that any author or counsel who wishes to substantiate his/her claims or wishes to comment on a State party's submission, should do so in a timely manner so as to enable the Committee to conclude its examination in an appropriately expeditious way.

11.1 In respect of the authors' claims under article 14, paragraphs 3 (b) and (d), the Committee reiterates that the right of an accused person to have adequate time and facilities for the preparation of his defence is an important element of the guarantee of a fair trial and a corollary of the principle of equality of arms. The determination of what constitutes adequate time depends on an assessment of the particular circumstances of each case. The material before the Committee discloses that neither leading nor junior counsel nor the authors complained to the trial judge that the time or facilities for the preparation of the defence had been inadequate. The Committee notes that if the authors or counsel had felt that they were improperly prepared, it would have been incumbent upon them to request an adjournment of the trial. Moreover, the Committee cannot conclude, on the basis of the available material, that the authors' representatives were unable to represent them adequately, nor that they displayed lack of professional judgement in the conduct of the defence of their clients. The same is true for the appeal. The written judgement of the Court of Appeal reveals that each of the authors was represented before the Court by different counsel, and there is no evidence that their lawyers were unable to prepare the cases properly for the appeal. The Committee therefore finds no violation of article 14, paragraphs 3 (b) and (d).

11.2 It remains for the Committee to decide whether the failure of the State party to make legal aid available to the authors for purposes of a constitutional motion violated their rights under article 14, paragraph 5, of the Covenant. Article 14, paragraph 5, guarantees the right of convicted persons to have the conviction and sentence reviewed "by a higher tribunal according to law". In this context, the authors claim that because of the non-availability of legal aid, they are denied effective access to the Supreme (Constitutional) Court of Jamaica. In its previous jurisprudence, e/ the Committee had examined the question whether article 14, paragraph 5, guarantees the right to a single appeal to a higher tribunal or whether it guarantees the possibility of further appeals when these are provided for by the law of the State concerned. It observed that the Covenant does not require States parties to provide for several instances of appeal. It found, however, that the words "according to law" in article 14, paragraph 5, must be understood to mean that if domestic law provides for further instances of appeal, the convicted person should have effective access to each of them. The Committee observes that in the instant case, the State party provided the authors with the necessary legal prerequisites for an appeal of the criminal conviction and sentence to the Court of Appeal and to the Judicial Committee of the Privy Council. It further observes that Jamaican law also provides for the possibility of recourse to the Constitutional Court, which is not, as such, a part of the criminal appeal process. Thus, the Committee finds that the availability of legal aid for constitutional motions is not required under article 14, paragraph 5, of the Covenant. Accordingly, the Committee concludes that the authors' rights under this provision were not violated.

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

[Done in English, French and Spanish, the English text being the original version.]

Notes

           a/        See Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex IX.B.

           b/        [1967] 2 ALL ER 161.

           c/        [1982] 3 AL ER 469.

           d/        See, for example, Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex IX.J, communication No. 283/1988 (Aston Little v. Jamaica), views adopted on 1 November 1991 at the forty-third session.

           e/        Ibid., annex IX.B, communication No. 230/1987 (Raphael Henry v. Jamaica), para. 8.4.

             H. Communication No. 353/1988, Lloyd Grant v. Jamaica

                 (views adopted on 31 March 1994, fiftieth session)

Submitted by:                                  Lloyd Grant (represented by counsel)

Victim:                                            The author

State party:                                      Jamaica

Date of communication:                  24 November 1988 (initial submission)

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

            Meeting on 31 March 1994,

            Having concluded its consideration of communication No. 353/1988, submitted to the Human Rights Committee by Mr. Lloyd Grant under the Optional Protocol to the International Covenant on Civil and Political Rights,

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

            Adopts its views under article 5, paragraph 4, of the Optional Protocol.

The facts as submitted by the author

1.         The author of the communication is Lloyd Grant, a Jamaican citizen awaiting execution at St. Catherine District Prison, Jamaica. An earlier communication submitted by him to the Human Rights Committee was registered as communication No. 285/1988; on 26 July 1988, the Committee declared it inadmissible on the grounds of non-exhaustion of domestic remedies, since the author had not yet petitioned the Judicial Committee of the Privy Council for special leave to appeal. The decision provided for the possibility of review, pursuant to rule 92, paragraph 2, of the Committee's rules of procedure, after exhaustion of domestic remedies. On 21 November 1988, the Judicial Committee dismissed the author's petition for special leave to appeal. The author thereupon resubmitted his case. He claims to be a victim of violations by Jamaica of articles 6, 7, 10 and 14 of the International Covenant on Civil and Political Rights. He is represented by counsel.

2.1       The author and his brother, Vincent Grant, were tried in the Hanover Circuit Court between 4 and 7 November 1986 for the murder, on 2 October 1985, of one T. M. Both were convicted and sentenced to death. On 5 October 1987, the Court of Appeal of Jamaica dismissed             the author's appeal, but acquitted his brother. The author's petition for special leave to appeal to the Judicial Committee of the Privy Council was dismissed on 21 November 1988. With this, it is submitted, all available domestic remedies have been exhausted.

2.2       The author was interrogated by the police on 7 October 1985 in connection with the murder of T. M., who had been killed during a robbery at his home in the parish of Hanover, over 150 miles away from the author's home. The author explained that, while he knew the deceased from the time when he lived in Hanover, he had not visited that town since June 1985 and knew nothing about the crime. He was none the less arrested and placed in custody. On 25 October 1985, the author was placed on an identification parade, where he was identified by the deceased's wife, E. M., whom he also knew. He and Vincent Grant, who was then living in Hanover, were subsequently charged with the murder of T. M.

2.3       The prosecution's case was that the author acted in common design with his brother and a third, unidentified, man. It relied upon identification evidence of E. M. and of one D. S., and upon statements allegedly made by both defendants under caution.

2.4       E. M. testified that, in the afternoon of 1 October 1985, Vincent Grant, whom she had known all her life, entered the shop. Although she spoke to him he remained silent, staring at her house which was opposite the shop. He then left. Subsequently D. S. entered the shop and told her that he had seen Vincent Grant holding a sharp machete and leaning against the gate to her house, watching her banana field, and that two masked men, both carrying machetes, had been in the field. D. S. further told her that, despite the mask, he had recognized Lloyd Grant, who, when asked what they were doing on the M.'s premises, ran away. E. M. further testified that, after having locked the doors and windows of their house, she and her husband retired to bed; a kerosene lamp was left burning in the living room. At approximately 1 a.m., she was awakened by a noise and she went to the living room where she saw two men who immediately assaulted her. At their request, she gave them all the money kept in the house. She was then forced to lie face down on the floor, and one of the men, whom she identified as Lloyd Grant, bent over her, asking her whether she knew him. When she replied in the negative, he stood up and attacked her husband, who had entered the room. A scuffle ensued and her husband fell to the floor. Lloyd Grant, she stated, then proceeded to humiliate and assault her, during which time she had ample opportunity to see his face. E. M. finally testified that before both men left the premises, they exchanged words with a third man, who was apparently waiting for them outside in the yard.

2.5       The post-mortem examination revealed that T. M.'s death was due to haemorrhage and excessive bleeding as a result of his throat being cut, and that his neck had been broken.

2.6       In court, D. S. further testified that, on 2 October 1985, between 2 a.m. and 3 a.m., he was returning home when he saw Vincent and Lloyd Grant and an unidentified third man run away from the locus in quo.

2.7       Statements allegedly made by both defendants to the police on 7 and 11 October 1985 were admitted in evidence by the judge after a challenge on the voir dire. Vincent Grant allegedly told the police that he had been forced by his brother to accompany him and another man to T. M.'s house, but that after both men had entered the premises, he had run away. In his statement, the author identified Vincent Grant as the mastermind behind the robbery and gave details of the burglary and of his entry into T. M.'s house in the company of his brother and a third person. The author further allegedly stated that while he was outside, holding E. M., the third person came out of the house and told him that he had "chopped up" T. M.

2.8       The author put forward an alibi defence. He made an unsworn statement from the dock, claiming that he had been at his home in Kingston with his girlfriend when the crime occurred. He further claimed that he had been forced by the police to sign, on 11 October 1985, a drawn-up statement. Vincent Grant also made an unsworn statement from the dock, stating only that on 2 October 1985, he was at home with his girlfriend, that he went to bed at 5 o'clock and that he knew nothing about the murder.

2.9       With respect to the identification of Vincent Grant (who had not been identified by E. M.), the testimony of D. S. revealed that his sight had been impaired by the darkness. Before the Court of Appeal, Vincent Grant's counsel argued, inter alia, that the trial judge had failed to give the jury adequate warning about the dangers of identification evidence and, in addition, failed to relate such direction as he gave on identification to the evidence presented by D. S. The Court of Appeal agreed with counsel that the trial judge overlooked the fact that the identification evidence offered in respect of the two defendants was materially different and that each case required appropriate and specific treatment. The Court of Appeal subsequently acquitted Vincent Grant.

2.10 Author's counsel before the Court of Appeal admitted that "there was overwhelming evidence against his client, especially in the light of E. M.'s testimony", and that "although he was of the opinion that the trial judge's directions on identification in relation to the author could have been more helpful, he did not believe that any reasonable argument could be mounted in law as to what the trial judge actually said". He further admitted that "the trial judge gave proper directions on common design" and that "overall he could find no arguable ground to urge on behalf of his client". The Court of Appeal agreed with counsel, stating that, in the case of the author, it found no defects in the instructions to the jury by the judge, and that the evidence against him was "overwhelming".

2.11 Throughout his trial and appeal, the author was represented by legal aid lawyers. A London law firm represented him pro bono before the Judicial Committee of the Privy Council.

2.12 The offence for which the author has been convicted was classified, on 18 December 1992, as a capital offence under the Offences against the Person (Amendment) Act 1992. On 6 January 1993, the author applied to the Court of Appeal for review of the classification in his case. The review process under the Act is currently stayed pending the outcome of a constitutional motion in another case, which challenges the constitutionality of the classification procedure established by the Act.

The complaint

3.1       With regard to articles 7 and 10 of the Covenant, the author claims that on 8 October 1985, he was beaten by police, hit on the head with a gun and threatened with death and that another policeman fired his gun to frighten him. On 11 October 1985, he allegedly was again beaten by the police; he claims that he was whipped with an electric cable and administered electric shocks. The author further claims that on death row, visiting facilities are inadequate and that conditions in the prison are unsanitary and extremely overcrowded.

3.2       In respect of the allegation of unfair trial under article 14 of the Covenant, it is submitted that:

            (a)       The author did not receive legal advice during the preliminary hearing. It was not until one month prior to the trial that he was assigned a legal aid attorney, who did not consult with him, despite an earlier adjournment for that purpose, until the day before the start of the trial and then only for 40 minutes;

            (b)       The circumstances of the case were not investigated before the trial began. The attorney did not attempt to secure the testimony of the author's girlfriend, P. D., or of her mother. Although instructed by the author to do so, the attorney failed to contact P. D., whose evidence would have provided an alibi for the author;

            (c)       The attorney did not argue the issue of reliability of the identification by E. M. If E. M. had been asked when she had last seen the author, it would have been revealed that she had not seen him for about 10 years, when he was fourteen or fifteen years old;

            (d)       The attorney did not go through the prosecution statements with the author;

            (e)       Counsel for the appeal effectively abandoned the appeal or failed to pursue it properly. This is said to have prejudiced the author's case before the Judicial Committee of the Privy Council, which acknowledged that there might have been points of law for the Court of Appeal to look into;

            (f)        Counsel for the appeal also declined to call P. D. It is contended that the author's legal representation was inadequate and in violation of article 14, paragraph 3 (d), in respect of the proceedings before both the Circuit Court and the Court of Appeal.

The State party's information and observations

4.         By submissions of 8 May 1990 and 18 April 1991, the State party argued that the communication was inadmissible on the grounds of failure to exhaust all available domestic remedies as required by article 5, paragraph 2 (b), of the Optional Protocol, since the author had failed to avail himself of constitutional remedies in the Supreme (Constitutional) Court of Jamaica. The State party further submitted that the communication did not disclose a violation of any of the rights set forth in the Covenant.

The Committee's decision on admissibility

5.1       During its forty-fourth session, the Committee considered the admissibility of the communication. With regard to the author's claims concerning the conditions of detention on death row, the Committee noted that he had not indicated what steps, if any, he had taken to submit his grievances to the competent prison authorities, and what investigations, if any, had been carried out. Accordingly, the Committee found that in this respect domestic remedies had not been exhausted.

5.2       With regard to the allegation of ill-treatment by the police, the Committee noted that this issue was raised before the trial court, and that the State party had not provided specific information in respect of this allegation in spite of the Committee's request that it do so. The Committee observed, taking into account that the author is a poor person depending on assignment of legal aid and that legal aid is not made available for the purpose of constitutional motions, that there were no further remedies available to the author in respect of this claim.

5.3       With regard to the allegations of unfair trial, the Committee noted that the author's claims related primarily to the inadequacy of the preparation of his defence and of his representation before the Jamaican courts. It considered that these claims might raise issues under article 14, paragraphs 3 (b), (d) and (e) of the Covenant, which should be examined on the merits.

5.4       On 20 March 1992, the Committee declared the communication admissible in so far as it appeared to raise issues under articles 7, 10 and 14, paragraphs 3 (b), (d) and (e) of the Covenant.

The State party's request for review of admissibility and counsel's comments

6.1       The State party, in a submission dated 1 October 1992, maintains that the communication is inadmissible because of non-exhaustion of domestic remedies. It explains that the rights under the Covenant which allegedly were violated in the author's case are similar to the rights contained in sections 17 (1) and 20 (6) (c) and (d) of the Jamaican Constitution. Accordingly, having exhausted the criminal appellate process, it would be open to the author, under section 25 of the Constitution, to seek redress for the alleged violations of his constitutional rights before the Supreme (Constitutional) Court of Jamaica.

6.2       With regard to a violation of article 7, the State party submits that the author did not substantiate his claim; no medical evidence was produced in support of the alleged ill-treatment, nor is there any evidence that he made a complaint to the competent local authorities. It further submits that the appropriate remedy for the author for the alleged violations of his rights under articles 7 and 10 of the Covenant would be a civil action for damages for assault.

6.3       With regard to the alleged violations of article 14, paragraphs 3 (b), (d) and (e), the State party refers to an individual opinion appended to the Committee's views in communication No. 253/1987, a/ and submits that the State party's obligation to provide an accused with legal representation cannot extend beyond the duty to act in good faith in assigning counsel to the accused, and that errors of judgement made by court-appointed lawyers cannot be attributed to the State party any more than errors by privately retained lawyers can be. It concludes that the Committee would be applying a double standard if it were to hold court-appointed lawyers accountable to a higher degree of responsibility than their counterparts, and thus hold the State party responsible for their errors of judgement.

7.1       With regard to the State party's request for review of the admissibility decision, London counsel points out that the State party has failed to show that a constitutional motion would be an effective and available remedy for the author. In this context, it is submitted that a constitutional motion is not a remedy available to the author, as he does not have the means to pursue such a course of action and legal aid is not made available for this purpose. Furthermore, the author has been unable to secure legal representation in Jamaica to argue such a motion on a pro bono basis. It is submitted that, for these reasons, a constitutional motion is not an available remedy which the author is required to exhaust for purposes of article 5, paragraph 2 (b) of the Optional Protocol. In addition, the application of such remedy, and the subsequent appellate process, would entail an unreasonable prolongation of the pursuit of remedies.

7.2       As to the alleged ill-treatment in violation of articles 7 and 10 of the Covenant, counsel submits that on 8 October 1985, the author was taken from his cell (at the Central Police Station in Kingston) to an office, where four policemen proceeded to question him without caution or charge. In the course of the interrogation, the four policemen allegedly beat the author to force him to confess to the crime. The following evening, three policemen took him to the Montego Bay Police Station. On the way to Montego Bay, the policemen turned off the highway and took the author to a "lonely road", where they again questioned and beat the author, with his hands cuffed behind his back. One of the police officers hit the author on his left ear with his gun, causing it to bleed, while another police officer fired his gun close to the author's head. On 11 October 1985, two policemen took the author out of his cell to an upstairs room, where the Superintendent was waiting. In the presence of the Superintendent, the two policemen beat the author on his back with electric wire, until it began to bleed. One of the men plugged in pieces of the wire and gave the author two electric shocks to his side.

7.3       As to the inadequacy of the preparation of the author's defence and of his representation before the Jamaican courts, it is submitted that the author was not represented during police interrogation and during the preliminary hearing. In September 1986, he saw the attorney assigned to him for the trial for the first time. She reportedly requested the judge to adjourn the trial, as she needed more time to prepare the defence. The hearing was rescheduled for 3 November 1986. Although upon requesting the adjournment, the attorney promised the author that she would discuss the case with him that evening, she never came to see him. On 3 November 1986, she visited him in the court lock-up. During the interview, which lasted for only 40 minutes, she took the first statement from the author; the attorney did not investigate the circumstances of the case prior to the trial nor did she consider the author's alibi defence. The author affirms that during the course of the trial he again met with his attorney, but that she did not carry out his instructions.

7.4       With regard to the attorney's failure to pursue the evidence of the author's girlfriend, counsel forwards an affidavit, dated 4 December 1989, from P. D. and a questionnaire, dated 22 March 1990; P. D. contends that the author was with her during the whole night of 1 to 2 October 1985, and that her mother and one P. M. could have corroborated this evidence. It further appears from her affidavit that, on one of the days of the court hearing, she was informed by the police that her presence was needed, but that she failed to go because she had no money to travel and the police allegedly told her that it had no car available to transport her to the Circuit Court. According to London counsel, the main reason why witnesses were not traced and called was that the legal aid rates were so inadequate that the attorney was not able to make the necessary inquiries and initiate the necessary steps to prepare the author's defence properly.

7.5       As to the conduct of the trial defence itself, it is submitted that the attorney failed properly to challenge the testimony of E. M. and D. S., in particular with regard to their identification of the author, and that she did not make any interventions when counsel for the prosecution put leading questions to the prosecution witnesses.

7.6       With regard to the preparation of the author's defence on appeal, reference is made to the transcript of an annex to the "Privy Council questionnaire for inmate appealing" where the author claims that: "On one occasion D. C. [counsel assigned to him for the purpose of the appeal] came inside the prison and saw about 10 inmates (including myself) and I spoke with him for approximately 20 minutes. During those 20 minutes he asked me if I had any knowledge of the crime and if I have any witness. I also asked him to get my girlfriend in court and he don't". It is submitted that, since D. C. had not represented him at the trial, it was essential for the author to have adequate time to consult with D. C. prior to the hearing of the appeal, and that the amount of time granted for that purpose was wholly inadequate. The above is said to indicate that the author's rights under article 14, paragraph 3 (d) were not respected, since counsel was not of his own choosing.

7.7       With regard to the claim that D. C. abandoned or failed properly to pursue the appeal, reference is made to the written judgement of the Court of Appeal and to a letter, dated 8 February 1988, from D. C. to the Jamaica Council for Human Rights. In his letter, D. C. states: "I daresay, however, that the judge's instruction on identification was certainly not the best, but the usual safeguards were complied with and on any legal merit I cannot recommend the case for further consideration". According to London counsel, there were several grounds in the case which could have been argued on appeal, such as P. D.'s evidence (had she been called), and the reliability of the identification evidence of E. M. and D. S., especially in light of the fact that the weakness in the latter's identification concerned both defendants. b/

7.8       Further to the above comments, which relate to the claims which were before the Committee when the communication was declared admissible on 20 March 1992, counsel's comments, dated 12 March 1993, contain several new allegations relating to articles 6, 9, paragraphs 1, 2 and 3, 14, paragraphs 1, 2, 3 (c) and 5, and 15 of the Covenant. For the purpose of the present communication, these further claims have been made too late.

Examination of the merits

8.1       The Committee has taken note of the State party's request that it review its admissibility decision. It reiterates that domestic remedies within the meaning of the Optional Protocol must be both available and effective. The Committee considers that, in the absence of legal aid, a constitutional motion does not, in the circumstances of the instant case, constitute an available remedy, within the meaning of article 5, paragraph 2 (b), of the Optional Protocol, which the author should still exhaust. c/ There is therefore no reason to revise the Committee's earlier decision on admissibility.

8.2       The Committee has considered the communication in the light of all the information made available to it by the parties, as required under article 5, paragraph 1, of the Optional Protocol.

8.3       As to the author's allegation of ill-treatment by the police on 8 and 11 October 1985, the Committee notes from the trial transcript that the police officers allegedly responsible were extensively cross-examined on this issue by the author's attorney both during and after the voir dire proceedings. In the absence of supporting medical evidence, the Committee is unable to find violations of articles 7 and 10 of the Covenant in the case.

8.4       Concerning the author's claims relating to the preparation of his defence and his legal representation on trial, the Committee recalls that the right of an accused person to have adequate time and facilities for the preparation of his defence is an important element of the guarantee of a fair trial and an important aspect of the principle of equality of arms. The determination of what constitutes adequate time requires an assessment of the circumstances of each case. The Committee notes that the material before it does not disclose whether either the author or his attorney complained to the trial judge that the time or facilities for the preparation of the defence had been inadequate. Nor is there any indication that the author's attorney acted negligently in the conduct of the defence. In this context, the Committee notes that the trial transcript discloses that E. M. and D. S. were thoroughly cross-examined on the issue of identification by the defence. The Committee therefore finds no violations of article 14, paragraphs 3 (b) and (d), in respect of the author's trial.

8.5       The author also contends that he was unable to secure the attendance of witnesses on his behalf, in particular the attendance of his girlfriend, P. D. The Committee notes from the trial transcript that the author's attorney did contact the girlfriend, and, on the second day of the trial, made a request to the judge to have P. D. called to court. The judge then instructed the police to contact this witness, who, as indicated in paragraph 7.4 above, had no means to attend. The Committee is of the opinion that, in the circumstances, and bearing in mind that this is a case involving the death penalty, the judge should have adjourned the trial and issued a subpoena to secure the attendance of P. D. in court. Furthermore, the Committee considers that the police should have made transportation available to her. To the extent that P. D.'s failure to appear in court was attributable to the State party's authorities, the Committee finds that the criminal proceedings against the author were in violation of article 14, paragraphs 1 and 3 (e), of the Covenant.

8.6       The author also claims that the preparation of his defence and his representation before the Court of Appeal were inadequate, and that counsel assigned to him for this purpose was not of his own choosing. The Committee recalls that, while article 14, paragraph 3 (d), does not entitle the accused to choose counsel provided to him free of charge, measures must be taken to ensure that counsel, once assigned, provides effective representation in the interest of justice. This includes consulting with, and informing, the accused if he intends to withdraw an appeal or to argue before the appellate instance that the appeal has no merit. d/ While it is not for the Committee to question counsel's professional judgement that there was no merit in the appeal, it is of the opinion that he should have informed Mr. Grant of his intention not to raise any grounds of appeal, so that Mr. Grant could have considered any other remaining options open to him. In the circumstances, the Committee finds that the author's rights under article 14, paragraph 3 (b) and (d), were violated in respect of his appeal.

8.7       The Committee is of the opinion that the imposition of a sentence of death upon the conclusion of judicial proceedings in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is available, a violation of article 6 of the Covenant. In the instant case, while a constitutional motion to the Supreme (Constitutional) Court might in theory still be available, it would not be an available remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol, for the reasons indicated in paragraph 8.1 above. As the Committee observed in its general comment No. 6 (16), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that "the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal". e/ In the present case, it may be concluded that the final sentence of death was passed without the proceedings having met the requirements of article 14, and that, as a result, the right to life protected by article 6 of the Covenant has been violated.

9.         The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, finds that the facts before it disclose violations of articles 6 and 14, paragraphs 1, 3 (b), (d) and (e) of the Covenant.

10.       The Committee is of the view that Mr. Lloyd Grant is entitled to a remedy entailing his release. It requests the State party to provide information, within 90 days, on any relevant measures taken by the State party in compliance with the Committee's views.

[Adopted in English, French and Spanish, the English text being the original version.]

Notes

            a/         Official Records of the General Assembly, Forty-sixth Session, Supplement No. 40 (A/46/40), annex XI.D, communication No. 253/1987 (Paul Kelly v. Jamaica), views adopted on 8 April 1991.

            b/        It appears from the transcript of the Privy Council hearing that author's counsel before the Judicial Committee of the Privy Council argued, inter alia, that the trial judge's direction as to the evidence of E. M. was inadequate, as he had not mentioned to the jury whether any sense of fear on her part could have had an effect upon her ability to identify the assailant. Counsel further argued that the defects found by the Court of Appeal in the trial judge's direction as to the evidence of D. S. affected the author's case as much as it did his brother's, and that the jury might have come to a different conclusion in the author's case if they had been adequately directed on the evidence of D. S. Lord Keith of Kinkel replied that: "It may be so and maybe you have a Court of Appeal point on that, but that is not quite the way we approach the matter when considering whether to grant special leave. The jury might have come to a different conclusion if they had been directed about the evidence of D. S. rather more effectively than they were, that may well be, but the fact remains that you have got a very clear and positive identification by E. M.".

            c/         See also the Committee's views in communications Nos. 230/1987 (Raphael Henry v. Jamaica) and 283/1988 (Aston Little v. Jamaica), adopted on 1 November 1991; Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annexes IX.B and J, paras. 7.1 et seq.

            d/        See Official Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/40), annex XII.O, communication No. 356/1989 (Trevor Collins v. Jamaica), views adopted on 25 March 1993, para. 8.2.

            e/         Ibid., Thirty-seventh Session, Supplement No. 40 (A/37/40), annex V, general comment 6(16), para. 7.

           I. Communication No. 355/1989, George Winston Reid v. Jamaica

               (views adopted on 8 July 1994, firty-first session)

Submitted by:                                     George Winston Reid

Victim:                                               The author

State party:                                                      Jamaica

Date of communication:                                     23 February 1989 (initial submission)

Date of decision on admissibility:             25 March 1992

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

            Meeting on 8 July 1994,

            Having concluded its consideration of communication No. 355/1989 submitted to the Human Rights Committee by Mr. George Winston Reid 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 its views under article 5, paragraph 4, of the Optional Protocol.

The facts as submitted by the author

1.         The author of the communication is George Winston Reid, a Jamaican citizen currently detained at the General Penitentiary in Kingston, Jamaica. He claims to be a victim of a violation by Jamaica of his human rights.

2.1       The author was arrested for the murder of his girlfriend, who died of stab wounds in the Cornwall Regional Hospital on 9 January 1980. He claims to be innocent and maintains that his girlfriend was stabbed by an unidentified man in the course of a dispute in her house. The author was taken into custody and detained at Montego Bay for three and a half months. His legal aid attorney, Mr. E. Alcott, first met him about 10 minutes before the start of the trial on 22 April 1980. Without giving any details, the author claims that he was poorly defended. On 23 April 1980, he was sentenced to death. On 16 March 1981, he was notified by the Registrar of the Court of Appeal that his appeal had been dismissed on 27 February 1981. No reasoned judgement was issued, and the author's efforts to obtain copies of trial documents in his case failed.

2.2       Since 1981, the author has unsuccessfully sought legal assistance with a view to filing a petition for leave to appeal to the Judicial Committee of the Privy Council. His first representative, Mr. Alcott, emigrated. Mr. Alcott's daughter, also an attorney, declined to take the case because she did not think that there was merit in it. According to the author, the Notes of Evidence would clearly prove her wrong. He submits that he would be unable to pursue an appeal other than in forma pauperis, and that no legal aid has been made available to him.

2.3       On 19 September 1990, the author's death sentence was commuted to life imprisonment.

The complaint

3.         Although the author does not invoke any article of the International Covenant on Civil and Political Rights, it appears from his submission that he claims to be a victim of a violation by Jamaica of article 14 of the Covenant.

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

4.1       By submission of 7 July 1989, the State party argued that the communication was inadmissible on the grounds of failure to exhaust domestic remedies, since the author could still petition the Judicial Committee of the Privy Council for leave to appeal.

4.2       By further submission of 16 January 1992, the State party confirmed that the author's application for leave to appeal had been refused by the Court of Appeal on 27 February 1981, in an oral judgement, which has not been issued in writing.

4.3       The State party explained that "where an application for leave to appeal is heard and an oral judgement is delivered, it is not permissible in law for the presiding judge or any other judge on that panel to give a written judgement in the same case, unless he had promised to do so at the time of the application for leave to appeal. The reason for this is that once the case is heard and determined, the judges are functus officio and cannot afterwards write up a judgement and put it on the files".

5.         In his reply to the State party's submission, the author's counsel, who had agreed to represent him pro bono for purposes of a petition for special leave to appeal to the Judicial Committee of the Privy Council, stated that he had been advised by leading counsel that there were no grounds upon which to petition the Privy Council. He therefore argued that the author was without an effective domestic remedy.

The Committee's decision on admissibility

6.         At its forty-fourth session, the Committee considered the admissibility of the communication. It noted the State party's contention that the communication was inadmissible because of the author's failure to petition the Judicial Committee of the Privy Council for special leave to appeal. It also noted that it was uncontested that no reasoned judgement of the Court of Appeal had been issued. Considering that the Judicial Committee cannot sustain arguments that are not corroborated by a written judgement of the Court of Appeal and taking into account the advice given by leading counsel, the Committee concluded that a petition to the Judicial Committee did not, in the special circumstances of the case, constitute an available and effective remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.

7.         On 25 March 1992, the Committee therefore declared the communication admissible in so far as it might raise issues under article 14, paragraphs 3 and 5, of the Covenant.

Review of admissibility

8.         By submission of 26 October 1992, the State party again argued that the communication was inadmissible for failure to exhaust domestic remedies, since the author could still petition the Judicial Committee of the Privy Council.

9.         In his comments dated 17 January 1993 on the State party's submission, the author submitted that in the absence of a written judgement by the Court of Appeal, an appeal to the Privy Council only constituted a theoretical remedy and not one that is practically available.

10.       The Committee has taken note of the arguments submitted to it by the State party and the author and reiterates that domestic remedies within the meaning of the Optional Protocol must be both available and effective. The Committee notes that, in the absence of a written judgement by the Court of Appeal, the Judicial Committee of the Privy Council routinely dismisses petitions for special leave to appeal. a/ b/ It reiterates that, in the absence of a written judgement by the Court of Appeal, a petition for special leave to appeal to the Judicial Committee of the Privy Council does not, in the circumstances of the instant case, constitute an available remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. There is therefore no reason to revise the Committee's earlier decision on admissibility of 25 March 1992.

Examination of the merits

11.1      As to the merits of the communication, the State party, by submission of 26 October 1992, argues that there has been no violation of article 14, paragraph 5, in the author's case. In this connection, the State party notes that the Court of Appeal reviewed the author's conviction and sentence and that it was open to the author to seek leave to appeal from this judgement to the Privy Council.

11.2      With regard to the author's claim under article 14, paragraph 3, the State party, by further submission of 12 May 1993, argues that it is unable to submit its comments, since the author has not alleged specific violations of the particular provisions under article 14, paragraph 3, and since the Committee, in its admissibility decision, has not identified the specific subparagraphs either. The State party argues that, under the Optional Protocol, an individual is under an obligation to invoke specific provisions of the Covenant, in order to enable the State party to reply properly to the communication. It further argues that a State party cannot be expected to answer to allegations when it is unaware of their contents.

12.       At its forty-ninth session, the Committee considered the communication and decided, on 22 October 1993, to request the State party to comment on the author's claim that he only met his legal aid attorney 10 minutes before the start of the trial and to clarify how the right to adequate time and facilities for the preparation of the defence was guaranteed to the author, as provided in article 14, paragraph 3 (b), of the Covenant. In this context, the Committee also inquired when the legal aid attorney was appointed, whether he was present at the preliminary inquiry and whether the relevant depositions were made available to the attorney and, if so, when. The Committee further decided to request the State party to provide information in respect of Mr. Reid's appeal, in particular to clarify whether Mr. Reid was able to appeal his conviction and sentence unconditionally or whether his right to appeal was dependent on the prior granting of leave to appeal.

13.1      In two further letters, dated 21 November 1993 and 25 February 1994, the author explains that he was represented during the preliminary inquiry by a legal aid lawyer, who later did not represent him at the trial. He further submits that this legal aid lawyer was only present on the first day of the preliminary hearings and that he was not represented on the second day, when evidence was given by a medical doctor. He alleges that the doctor did not speak English, but Spanish, that there was no interpretation and that, when it became clear that the investigating magistrate and the witness could not understand each other, the doctor produced a written statement, which had been prepared in advance. By the time of the trial, the doctor had returned to his home country of Cuba, and the written statement was rendered as evidence. The author claims that he has difficulties further substantiating his allegations, since the State party has failed to provide him with a copy of the trial transcript.

13.2      No information or observations have been forwarded by the State party, despite a reminder sent on 3 May 1994. The Committee notes with regret the absence of cooperation from the State party with the Committee's request for further information, and recalls that it is implicit in article 4, paragraph 2, of the Optional Protocol, that a State party should make available to the Committee all the information at its disposal. In the circumstances, due weight must be given to the author's allegations, to the extent that they have been substantiated.

14.1      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.

14.2      As regards the author's claim that he did not have adequate time and facilities for the preparation of his defence, the Committee notes that it is uncontested that the legal aid lawyer who represented the author at the preliminary inquiry was not present at all the hearings and that the author met the legal aid lawyer who was going to represent him at the trial only 10 minutes before its start. In the absence of any evidence that might prove otherwise, the Committee considers that the time and facilities for the preparation of the author's defence were not adequate and that this must have been known to the investigating magistrate and the trial judge. The Committee therefore concludes that the facts of the case reveal a violation of article 14, paragraph 3 (b), of the Covenant.

14.3      Concerning the proceedings before the Court of Appeal, the Committee recalls that article 14, paragraph 5, states that everyone convicted of a crime shall have the right to have his conviction and sentence reviewed by a higher tribunal according to law. The Committee considers that, while the modalities of an appeal may differ among the domestic legal systems of States parties, under article 14, paragraph 5, a State party is under an obligation to review substantially the conviction and sentence. In the instant case, the Committee considers that the conditions of the dismissal of Mr. Reid's application for leave to appeal, without reasons given and in the absence of a written judgement, constitute a violation of the right guaranteed by article 14, paragraph 5, of the Covenant.

14.4      As regards the author's right to petition the Judicial Committee of the Privy Council for leave to appeal, the Committee notes that the Court of Appeal did not produce a written judgement. In these circumstances, the author was prevented from effectively petitioning the Judicial Committee of the Privy Council for special leave to appeal. The Committee recalls that the words "according to law" in article 14, paragraph 5, are to be interpreted to mean that if domestic law provides for further instances of appeal, the convicted person must have effective access to each of them. Moreover, in order to enjoy the effective use of this right, the convicted person is entitled to have, within reasonable time, access to written judgements, duly reasoned, for all instances of appeal. c/ In this connection, the Committee refers to its earlier jurisprudence and reaffirms that article 14, paragraph 3 (c), and article 14, paragraph 5, are to be read together, in the sense that the right to review of conviction and sentence must be made available without undue delay at all instances. d/ The Committee concludes that in the instant case there has been a violation of article 14, paragraphs 3 (c) and 5, of the Covenant in this respect.

15.       The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 14, paragraphs 3 (b), 3 (c) and 5, of the International Covenant on Civil and Political Rights.

16.       The Committee is of the view that Mr. Reid is entitled to an appropriate remedy under article 2, paragraph 3, of the Covenant. In this case, as the Committee finds that Mr. Reid did not receive a fair trial within the meaning of the Covenant, the Committee considers that the appropriate remedy entails his release. The State party is under an obligation to ensure that similar violations do not occur in the future.

17.       The Committee would wish to receive information, within 90 days, on any relevant measures taken by the State party in respect of the Committee's views.

[Adopted in English, French and Spanish, the English text being the original version.]

Notes

            a/        See inter alia Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex IX.B, communication No. 230/1987 (Raphael Henry v. Jamaica), views adopted on 1 November 1991; and ibid., Forty-sixth Session, Supplement No. 40 (A/46/40), annex XI.D, communication No. 253/1987 (Paul Kelly v. Jamaica), views adopted on 8 April 1991.

            b/        Rules 3 and 4 of the Judicial Committee (General Appellate Jurisdiction) Rules Order read:

                       "3(1). A petition for special leave to appeal shall:

"(a) State succinctly all such facts as it may be necessary to state in order to enable the Judicial Committee to advise Her Majesty whether such leave ought to be granted;

"(b) Deal with the merits of the case only so far as is necessary to explain the grounds upon which special leave to appeal is sought;

                                      "...

                       "4. A petitioner for special leave to appeal shall lodge:

"(a) Six copies of the petition and of the judgement from which special leave to appeal is sought;

                                      "..."

            c/        See Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex IX.B, communication No. 230/1987 (Raphael Henry v. Jamaica), views adopted on 1 November 1991, para. 8.4; and ibid., Forty-eighth Session, Supplement No. 40 (A/48/40), annex XII.K, communication No. 320/1988 (Victor Francis v. Jamaica), views adopted on 24 March 1993.

            d/        Ibid., Forty-fourth Session, Supplement No. 40 (A/44/40), annex X.F, communications Nos. 210/1986 and 225/1987 (Earl Pratt and Ivan Morgan v. Jamaica), views adopted on 6 April 1989, paras. 13.3-13.5.

            J. Communication No. 366/1989, Isidore Kanana v. Zaire

                (views adopted on 2 November 1993, forty-ninth session)

Submitted by:              Isidore Kanana Tshiongo a Minanga

Victim:                                               The author

State party:                                                      Zaire

Date of communication:                        2 May 1989 (initial submission)

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

            Meeting on 2 November 1993,

            Having concluded its consideration of communication No. 366/1989, submitted to the Human Rights Committee by Mr. Isidore Kanana Tshiongo a Minanga 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 its views under article 5, paragraph 4, of the Optional Protocol.

1.         The author of the communication is Isidore Kanana Tshiongo a Minanga, a Zairian citizen residing in Kinshasa, Zaire. The author claims to be a victim of violations of his human rights by Zaire.

The facts as submitted by the author

2.1       The author is a founding member of the Union for Democracy and Social Progress (Union pour la démocracie et le progrès social (UDPS)), a political party which was in opposition to the regime of President Mobutu. a/ At around 1 p.m. on 1 May 1989, members of the Zairian Defence Forces allegedly took him to the headquarters of the Agence Nationale de Documentation (AND), a special branch of the Zairian political police. The author contends that he had been told initially that he was to meet the agency's director but that upon his arrival, he was led to what he refers to as torture chambers. He was left there unattended until around 8 p.m., when several individuals entered the cell. He allegedly was undressed and strapped to the concrete floor of the cell; he was left in this state until around midnight, when five men entered the cell and began torturing him. A sixth man joined them at around 2 a.m. Torture allegedly involved applying electric shocks to the author's genitals as well as heavy beatings, using metal bars with barbed wire wrapped around the end. According to the author, this treatment continued until he lost consciousness, in the early morning hours of 2 May 1989.

2.2       The author was left for dead in bushes along the roadside, in the vicinity of the AND headquarters. He states that he regained consciousness at around 7 a.m. on 2 May and managed to alert some roadworkers, who transported him to the nearby office of the Red Cross, from which he was brought to the American Hospital to undergo emergency treatment; he remained hospitalized for several days.

2.3       The author asserts that as the executive partly controls the judiciary in Zaire, it would be naive to expect to obtain redress through domestic judicial procedures. Nevertheless, the author filed a complaint with the Supreme Court; it appears that to date, no follow-up has been given to it. He further addressed two letters of complaint to the State Commissioner for National Defence and Security, to no avail.

2.4       The author submits that his health remains precarious, and adds that he has suffered from paralysis in the right part of his body since the end of 1990.

The complaint

3.         While the author does not invoke any provision of the Covenant, it transpires from his submission that he claims to be a victim of arbitrary detention and of acts of torture. In particular, he notes that he was at no time notified of the reasons for which he had been apprehended.

The Committee's decision on admissibility

4.1       During its forty-fourth session, in March 1992, the Committee considered the admissibility of the communication. It noted with concern that in spite of four reminders addressed to the State party between April 1990 and November 1991, no information or observations on the admissibility of the communication had been received from the State party; nor did the State party provide information, as had been requested by the Special Rapporteur on New Communications, about the status of investigations into the allegations of Mr. Kanana. Given the complete absence of information from the State party about the availability of effective domestic remedies, the Committee concluded that there were no obstacles to the admissibility of the communication.

4.2       On 20 March 1992, therefore, the Committee declared the communication admissible.

Examination of the merits

5.1       The State party did not provide any information in respect of the substance of the author's allegations, in spite of a reminder addressed to it in May 1993. The Committee notes with great concern the total absence of cooperation on the part of the State party, in respect of both the admissibility and the substance of the author's allegations. It is implicit in article 4, paragraph 2, of the Optional Protocol and in rule 91 of the rules of procedure that a State party to the Covenant must investigate in good faith all the allegations of violations of the Covenant against it and its authorities and furnish the Committee with detailed information about the measures, if any, taken to remedy the situation. In the circumstances, due weight must be given to the author's allegations, to the extent that they have been substantiated.

5.2       The Committee notes that the author claims to have been detained at the headquarters of the Agence Nationale de Documentation between the early afternoon of 1 May 1989 and the early morning hours of the following day. He claims that he was not informed of the reasons for his apprehension and detention; this has not been contested. Furthermore, it is uncontested that no warrant was served on him and that he was brought to AND headquarters under false pretexts. These uncontested claims are considered by the Committee to have been substantiated by Mr. Kanana and justify the conclusion that his detention on 1 and 2 May 1989 was arbitrary and contrary to article 9, paragraph 1. The Committee also expresses grave concern about the circumstances of Mr. Kanana's apprehension and the apparent lack of judicial accountability of the Zairian Defence Forces.

5.3       As to the treatment to which the author was subjected between 8 p.m. on 1 May 1989 and the early morning hours of 2 May 1989, it has remained uncontested that Mr. Kanana remained strapped to the concrete floor of his cell for close to four hours, and that he was thereafter subjected to acts of torture for several more hours. The Committee observes in this context that Mr. Kanana has provided photographic evidence of the consequences of this treatment. In the circumstances, the Committee concludes that the author has substantiated his claim that he was subjected to torture and cruel and inhuman treatment, in violation of article 7 of the Covenant, and that he was not treated with respect for the inherent dignity of his person, in violation of article 10, paragraph 1.

6.         The Human Rights Committee, acting under article 5, paragraph 4, of the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose violations of articles 7, 9, paragraph 1, and 10, paragraph 1, of the Covenant.

7.         The Committee is of the view that Mr. Isidore Kanana is entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective remedy, including appropriate compensation for the treatment suffered. The State party should investigate the events complained of and bring to justice those held responsible for the author's treatment; it further is under an obligation to take effective measures to ensure that occurrences such as those complained of by the author cease and that similar violations do not occur in the future.

8.         The Committee would wish to receive information, within 90 days, on any relevant measures taken by the State party in respect of the Committee's views.

[Done in English, French and Spanish, the English text being the original version.]

Notes

            a/        In August 1992, the National Sovereign Conference of Zaire designated UDPS leader Etienne Tshisekedi Prime Minister of Zaire; he assumed his duties in late August 1992. His mandate has not been recognized by President Mobutu Sese Seko.

           K. Communication No. 375/1989, Glenmore Compass v. Jamaica

               (views adopted on 19 October 1993, forty-ninth session)

Submitted by:                                     Glenmore Compass (represented by counsel)

Alleged victim:                                     The author

State party: Jamaica

Date of communication:             22 August 1989 (initial submission)

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

            Meeting on 19 October 1993,

            Having concluded its consideration of communication No. 375/1989, submitted to the Human Rights Committee by Mr. Glenmore Compass under the Optional Protocol to the International Covenant on Civil and Political Rights,

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

            Adopts its views under article 5, paragraph 4, of the Optional Protocol.

The facts as submitted by the author

1.         The author of the communication is Glenmore Compass, a Jamaican citizen currently awaiting execution at St. Catherine District Prison, Jamaica. He claims to be the victim of a violation by Jamaica of article 14, paragraphs 1 and 3 (e), of the International Covenant on Civil and Political Rights. He is represented by counsel.

2.1       On 4 September 1984, the author was charged, together with one Vernon Pinnock, with the murder, on 25 July 1984, of one Sidney Steele. On 17 January 1986, he was tried in the Home Circuit Court of Kingston, convicted and sentenced to death; his co-defendant was found guilty of manslaughter and sentenced to 15 years of imprisonment.

2.2       The prosecution contended that Mr. Steele and his companion, Ms. Novelette Proverbs, were attacked by Mr. Compass and two other men, Vernon Pinnock and one Barrington Shaw, on their way home on the night of 25 July 1984; during the assault, Mr. Steele was shot. It is further stated that, later that same night, the three men were stopped by two police officers for a routine control; a fight ensued during which the officers arrested Mr. Shaw and recovered a gun which, according to forensic tests, proved to be the murder weapon.

2.3       The author was arrested one month later, after having been recognized by one of the police officers who had been present at the incident of 25 July 1984. He was placed on an identification parade; Ms. Proverbs, the prosecution's main witness, purportedly was unable to identify the author properly, owing to insufficient light in the room. During the trial, however, she made a dock identification of the author, whom she allegedly knew only by sight and by his nickname of "Brown Man"; she also identified the two other assailants and testified that she saw the author shoot the deceased. According to the evidence of a police inspector, the author was duly cautioned upon his arrest and made a statement in which he admitted to being present at the murder scene, but denied knowing that his friends intended to kill Mr. Steele. No written statement was taken from the author.

2.4       The author denies any involvement in the crime. During the trial, he made an unsworn statement from the dock, stating that he was at home with his wife and daughter, watching television, on the night of the murder. He contends that he did not know his co-defendant prior to the trial and that he never made any statement concerning the murder upon his arrest.

2.5       The author further states that the Court of Appeal of Jamaica dismissed his appeal on 10 February 1988. In this context, he indicates that he sought to adduce fresh evidence, which included depositions of two witnesses who had been called to testify at the trial, in order to show inconsistencies in the evidence concerning the identification parade. The Court of Appeal, however, did not admit the evidence. The author further notes that he appealed on the ground that the trial judge erred in his summing-up to the jury in relation to Ms. Proverbs' identification evidence, as well as with respect to the evidence of the arresting officers.

2.6       After the dismissal of his appeal, the author filed a petition for special leave to appeal to the Judicial Committee of the Privy Council on the following grounds: (a) that the Court of Appeal erred in failing to consider whether the dock identifications should have been allowed; (b) that it erred in assuming that the uncertainty of the author's identification by Ms. Proverbs was irrelevant; and (c) that it wrongly evaluated the evidence tendered by another prosecution witness as to why he did not attend the identification parade. On 19 December 1988, the Privy Council dismissed the petition.

2.7       With respect to the requirement of exhaustion of domestic remedies, the author submits that, since the Judicial Committee of the Privy Council dismissed his petition, he has exhausted available domestic remedies within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.

The complaint

3.1       The author claims that he was denied a fair trial and that several irregularities occurred in its course. In particular, he alleges that the trial judge failed to exercise his discretion to prohibit a dock identification by witnesses who had not previously identified the author; that the judge failed to direct the jury on the issue of whether the light at the identification parade was sufficient to allow Ms. Proverbs to identify him; and that the judge failed to warn the jury on the dangers of dock identifications, the significance of the failure by the police to hold another identification parade in better lighting conditions and the danger of relying upon evidence of an alleged confession which was not taken down in writing.

3.2       The author further contends that his rights under article 14, paragraph 3 (e), were violated, since he was not able to cross-examine a prosecution witness, Detective McNab, who at the time of the trial had left the police and emigrated, but whose statements were admitted pursuant to section 34 of the Justices of the Peace Act. The statements are said to have been highly prejudicial to the author's case, in that they purportedly contained identification evidence and evidence that conflicted with the ballistic evidence. In this context, counsel submits that the examination of witnesses in jury trials is fundamental to the notion of fair trial. He contends that the fact that an accused may have had an opportunity to examine a witness against him at a preliminary hearing should not detract from his right to examine that witness before a jury. In this connection, counsel submits that evidence which comes to light after the preliminary hearing, may bring up questions which an accused will wish to put to witnesses against him.

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

4.1       The State party contended that, in spite of the dismissal of the author's petition by the Judicial Committee of the Privy Council, the communication was inadmissible for failure to exhaust domestic remedies, since the author had not pursued the remedies available to him under the Jamaican Constitution. In this context, the State party submitted that article 14 of the Covenant invoked by the author is coterminous with the right protected by section 20 of the Jamaican Constitution, which guarantees to everyone the right to due process of law. Under article 25 of the Constitution, if anyone alleges that any of his fundamental rights has been, is being or is likely to be contravened, he may, without prejudice to any other action with respect to the same matter which is lawfully available, apply to the Supreme Court for redress.

4.2       The State party further challenged the Committee's competence to examine the communication, in that the issues raised in the case relate to the evaluation of facts and evidence. In this connection, it referred to the Committee's jurisprudence, which holds that "while article 14 of the Covenant guarantees a right to a fair trial, it is for the appellate courts of States parties to the Covenant to evaluate facts and evidence in a particular case", and that "the review by the Committee of specific instructions to the jury by the judge in a trial by jury is beyond the scope of application of article 14, unless it can be ascertained that the instructions to the jury were clearly arbitrary or amounted to a denial of justice". a/

5.         In his comments on the State party's submission, counsel challenged the State party's contention that the author might still pursue constitutional remedies and submitted that these remedies were not available to the author owing to lack of financial means and unavailability of legal aid for the purpose. In this context, reference was made to the Committee's constant jurisprudence under which exhaustion of domestic remedies can only be required to the extent that those remedies are both effective and available within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.

The Committee's consideration of and decision on admissibility

6.1       During its fortieth session, in October 1990, the Committee considered the admissibility of the communication. It observed that recourse to the Constitutional Court under section 25 of the Jamaican Constitution was not a remedy available to the author within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.

6.2       In respect of the author's allegations relating to the issue of the adequacy of the judge's instructions to the jury, the Committee considered that the review by the Committee of specific instructions to the jury in a trial is beyond the scope of application of article 14, unless it can be ascertained that the instructions were clearly arbitrary or amounted to a denial of justice. Since the Committee had no evidence that the judge's instructions suffered from such defects, it found that this part of the communication was inadmissible under article 3 of the Optional Protocol.

6.3       The Human Rights Committee, therefore, on 18 October 1990, declared the communication admissible in so far as it might raise issues under article 14, paragraph 3 (e), of the Covenant, in respect of the claim that the author was unable to cross-examine a prosecution witness whose evidence allegedly was highly prejudicial to his case.

Reconsideration of admissibility issues

7.         The State party, by submission of 12 June 1991, maintains that the communication is inadmissible because of the author's failure to seek constitutional redress. It contends that the Committee's reasoning in the admissibility decision reflects a misunderstanding of the relevant Jamaican law; it claims that constitutional redress is still available to the author, since the breach of the right to fair trial was not the subject of judicial determination by the Privy Council. The State party observes that there are judicial precedents which illustrate that recourse to criminal law appellate remedies does not preclude the Supreme (Constitutional) Court's jurisdiction to grant constitutional redress.

8.1       By submission of 9 August 1991, counsel contests that the constitutional motion is a remedy available to the author within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. He argues that the issue of fair trial was actually the subject-matter of the appeal to the Privy Council, and concludes that the Supreme (Constitutional) Court is therefore barred from exercising its powers under section 25 of the Constitution.

8.2       Counsel further argues that, even if the constitutional motion were deemed adequate and effective, it is not a remedy available to the author owing to his lack of financial means and the unavailability of legal aid for the purpose. Counsel emphasizes that the existence of constitutional redress is not denied, but that, in the circumstances of the present case, the provision of legal aid would be necessary to enable an effective pursuit of the constitutional remedy.

9.1       The Committee has taken note of the State party's argument that constitutional remedies are still available to the author. It recalls that the Supreme Court of Jamaica has, in recent cases, allowed applications for constitutional redress in respect of breaches of fundamental rights, after the criminal appeals in these cases had been dismissed.

9.2       However, the Committee also recalls that by submission of 10 October 1991, concerning another case, b/ the State party indicated that legal aid is not provided for constitutional motions, and that it has no obligation under article 14, paragraph 3 (d), of the Covenant to make legal aid available in respect of such motions, as they do not involve the determination of a criminal charge. In the view of the Committee, this supports the finding, made in the decision of admissibility, that a constitutional motion is not an available remedy for an author who has no means of his own to pursue it. In this context, the Committee observes that the author does not claim that he is absolved from pursuing constitutional remedies because of his indigence; rather it is the State party's unwillingness or inability to provide legal aid for the purpose that renders the remedy one that need not be pursued for purposes of the Optional Protocol.

9.3       Accordingly, the Committee considers that there is no reason to revise the decision on admissibility of 19 October 1990.

Examination of the merits

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

10.2      The Committee notes with concern that the State party in its submissions has confined itself to issues of admissibility. Article 4, paragraph 2, of the Optional Protocol enjoins a State party to investigate in good faith all the allegations made against it, and to make available to the Committee all the information at its disposal.

10.3      In respect of the author's claim that article 14, paragraph 3, was violated in his case, as he was not given the opportunity to cross-examine one of the main prosecution witnesses, Detective McNab, the Committee notes that it is undisputed that the witness was unable to give evidence during the trial, because he had left Jamaica. The Committee notes, however, that it appears from the trial transcript that the author was present during the preliminary hearing, when McNab gave his statement under oath, and that counsel to the author cross-examined the witness on that occasion. The statement made by the witness, as well as the answers in cross-examination, were put before the Court during the trial as evidence; no objection was taken by the author or his counsel, either at the trial or on appeal, to the introduction of this evidence. The Committee observes that article 14, paragraph 3 (e), protects the equality of arms between the prosecution and the defence in the examination of witnesses, but does not prevent the defence from waiving or not exercising its entitlement to cross-examine a prosecution witness during the trial hearing. In any event, the Committee notes that Detective McNab was examined by the defence under the same conditions as by the prosecution at the preliminary hearing. In the circumstances of the case, the Committee concludes that the facts before it do not disclose a violation of article 14, paragraph 3 (e).

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 do not disclose a violation of any of the provisions of the International Covenant on Civil and Political Rights.

[Done in English, French and Spanish, the English text being the original version.]

Notes

            a/        See Official Records of the General Assembly, Forty-fifth Session, Supplement No. 40 (A/45/40), annex X.Q, communication No. 329/1988 (D. F. v. Jamaica), decision of 26 March 1990, para. 5.2; and ibid., annex X.S, communication No. 369/1989 (G. S. v. Jamaica), decision of 8 November 1989, para. 3.2.

            b/        Ibid., Forty-seventh Session, Supplement No. 40 (A/47/40), annex IX.J, communication No. 283/1988 (Aston Little v. Jamaica), views adopted on 1 November 1991.

L. Communication No. 377/1989, Anthony Currie v. Jamaica

(views adopted on 29 March 1994, fiftieth session)

Submitted by: Anthony Currie (represented by counsel)

Alleged victim: The author

State party: Jamaica

Date of communication: 25 October 1989 (initial submission)

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

            Meeting on 29 March 1994,

            Having concluded its consideration of communication No. 377/1989, submitted to the Human Rights Committee by Mr. Anthony Currie under the Optional Protocol to the International Covenant on Civil and Political Rights,

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

            Adopts its views under article 5, paragraph 4, of the Optional Protocol.

The facts as submitted by the author

1.         The author of the communication is Anthony Currie, a Jamaican citizen awaiting execution at St. Catherine District Prison, Jamaica. He claims to be the victim of a violation by Jamaica of article 14, paragraphs 1, 3 (c) and 5, juncto article 2, paragraph 3, of the International Covenant on Civil and Political Rights. He is represented by counsel.

2.1       The author states that he was charged with the murder, on 18 April 1978, of Ezekiel Segree. Prior to the murder, the author and the deceased had been engaged in an argument. The author alleges that the deceased pulled a knife and injured him. During the trial medical evidence was not called for by the author's lawyer in order to determine whether the author's scar could have been the result of a wound inflicted at the time of the murder; the prosecution witnesses testified that the deceased had not been the aggressor.

2.2       On 8 December 1978, the author was sentenced to death. The author appealed the judgement on the ground that the judge had misdirected the jury on the issue of self-defence. The Jamaican Court of Appeal dismissed his appeal on 11 October 1980. The author subsequently filed a petition for special leave to appeal to the Judicial Committee of the Privy Council. On 20 February 1987, his petition was dismissed in the absence of a written judgement of the Jamaican Court of Appeal. Counsel had invited the Judicial Committee to allow the petition on the basis that the failure of the Court of Appeal to issue a written judgement in a capital case was such a serious violation of the principles of natural justice that leave to appeal should be granted, or to remit the case to Jamaica with a direction under section 10 of the Judicial Committee Act 1844 that the Court of Appeal be required to provide written reasons.

2.3       Section 10 of the 1844 Act (as revised on 31 March 1978) stipulates:

"It shall be lawful for the said Judicial Committee to make an order or orders on any court in any colony of foreign settlement, or foreign dominion of the crown, requiring the judge or judges of such court to transmit to the clerk of the Privy Council a copy of the notes of evidence in any case tried before such court, and of the reasons given by the judge or judges for the judgement pronounced in any case brought by appeal or by writ of error before the said Judicial Committee."

2.4       The Judicial Committee did not adopt either of the proposed courses and instead dismissed the application for leave to appeal.

The complaint

3.1       The author claims that he has been denied the right to have his conviction and sentence reviewed by a higher tribunal because of the Court of Appeal's failure to issue a written judgement and the subsequent failure of the Judicial Committee to exercise its powers under section 10 of the 1844 Act. He states that he failed to win special leave to appeal to the Judicial Committee because, in the absence of written judgement, he was unable to explain the grounds on which he was seeking leave to appeal and to include copies of the Appeal Court's judgement.

3.2       The author further contends that the failure of the Court of Appeal to issue a written judgement, despite repeated requests on his behalf, violates his right to be tried without undue delay, as in the absence of a written judgement he is unable to pursue effectively his right of appeal to the Judicial Committee of the Privy Council.

3.3       The author further submits that by failing to provide him with an accessible legal procedure for the enforcement of his constitutional rights, the State party denied him the right of access to court to seek redress for the violations of his fundamental rights. The author argues that this failure constitutes a violation of article 14, paragraph 1, juncto article 2, paragraph 3, of the Covenant.

3.4       In support of his allegations the author adduces relevant judicial precedents from the case law of Commonwealth countries, the United States of America, the European Court of Human Rights and the Human Rights Committee. a/

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

4.1       By submission of 11 January 1990, the State party argues that the communication is inadmissible on the ground of failure to exhaust all domestic remedies.

4.2       The State party submits that the author's right to a fair trial without undue delay and the right to access to court for the determination of criminal charges against him are guaranteed in section 20 (1) of the Jamaican Constitution. Under section 25, any person who alleges that a fundamental right guaranteed in the Constitution has been, is being or is likely to be contravened in relation to him may apply to the Supreme (Constitutional) Court for redress. The State party states that the Supreme Court may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the rights to which the person is entitled.

4.3       The State party argues that, since the author has taken no steps to secure his constitutional remedies, he has therefore not exhausted domestic remedies as required by article 5, paragraph 2 (b), of the Optional Protocol.

5.1       In his comments on the State party's observations, the author explains why, in his opinion, his communication meets the requirements of article 5, paragraph 2 (b), of the Optional Protocol. While conceding that he has not sought to exercise his right under section 25 (1) of the Jamaican Constitution to seek redress for the alleged breach of his constitutional rights before the Supreme Court, he argues that, in practical terms, because of lack of means, this right is not available to him and is therefore not an effective domestic remedy. He submits that he cannot be required to exhaust a remedy that is neither available nor effective.

5.2       The author argues that the State party has rendered his constitutional rights meaningless and nugatory by failing to provide legal aid for constitutional motions. He contends that without the assistance of a lawyer, he is unable to pursue the complex legal procedures that a constitutional motion entails. He states that he has been unsuccessful in finding an attorney willing to represent him on a pro bono basis. He contends that he is therefore being denied effective access to court for the determination of his constitutional rights.

The Committee's decision on admissibility

6.         At its forty-fourth session, the Committee considered the admissibility of the communication. It noted the State party's contention that the communication was inadmissible because of the author's failure to pursue the constitutional remedies said to be available to him. In this context, the Committee recalled its constant jurisprudence that domestic remedies within the meaning of the Optional Protocol must be both available and effective; it considered that, in the absence of legal aid for purposes of filing a constitutional motion, the recourse to the Supreme Court under section 25 of the Jamaica Constitution did not constitute a remedy which is both available and effective within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.

7.         On 20 March 1992, the Committee therefore declared the communication admissible in so far as it might raise issues under article 14, paragraphs 1, 3 (c) and 5, of the Covenant.

Review of admissibility

8.         By submission of 16 February 1993, the State party maintains that the communication is inadmissible for failure to exhaust domestic remedies. It challenges the Committee's finding that a constitutional motion does not provide an adequate and effective remedy in the absence of legal aid. In this context, the State party submits that the Covenant does not require States parties to provide legal aid in all cases, but only, under article 14, paragraph 3 (d), to persons charged with a criminal offence where the interests of justice so require.

9.         In his comments, dated 21 June 1993, on the State party's submission, the author refers to his earlier comments concerning the admissibility of the communication.

10.       The Committee has taken note of the arguments submitted to it by the State party and the author and reiterates that domestic remedies within the meaning of the Optional Protocol must be both available and effective. The Committee considers that, in the absence of legal aid, a constitutional motion does not, in the circumstances of the instant case, constitute an available remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. There is therefore no reason to revise the Committee's earlier decision on admissibility of 20 March 1992.

Examination of the merits

11.       As to the merits of the communication, the State party argues that the author's allegations do not reveal a violation of the Covenant. With regard to the author's allegation that article 14, paragraph 5, has been violated, the State party submits that the author has had his case reviewed by the Court of Appeal as well as by the Privy Council.

12.1       With regard to his claim under article 14, paragraphs 3 (c) and 5, of the Covenant, that he has been denied the right to have his conviction and sentence reviewed by a higher tribunal without undue delay, the author refers to the Committee's prior jurisprudence, b/ where the Committee found violations of article 14, paragraphs 3 (c) and 5, since the failure of the court to issue a written judgement denied the complainants the possibility of an effective appeal without undue delay. The author points out that it has been 15 years since he was originally charged with murder and nearly 13 years since the Court of Appeal orally dismissed his appeal and that no written judgement has been issued as yet. He challenges the State party's statement that his case had been examined by the Privy Council and states that the Privy Council merely denied him leave to appeal because he was unable to meet the requirements of the Council's rules of procedure, namely, to explain the grounds on which he was seeking special leave to appeal and to include copies of the Appeal Court's judgement with his petition.

12.2       With regard to his claim under article 14, paragraph 1, of the Covenant, that he has been denied the right of access to court to seek constitutional redress for the violation of his human rights, the author submits that the high legal costs involved in seeking constitutional redress are well beyond his means and that no legal aid is provided for constitutional motions. He moreover claims that the complicated nature of the system of constitutional redress makes it inaccessible to him without legal assistance. He argues that although the Covenant does not oblige States parties to provide legal aid in respect of civil actions, States parties are under an obligation to give effect to the rights and remedies set out in the Covenant. The author argues that the absence of legal aid for constitutional motions and the absence of a simple and accessible procedure for constitutional redress deny him effective access to the constitutional court, so that he cannot enjoy his right under article 14, paragraph 1, to a fair and public hearing for the determination of his rights and obligations.

13.1       The Committee has considered the communication in the light of all information made available to it by the parties, as required under article 5, paragraph 1, of the Optional Protocol.

13.2       The author has claimed that the absence of legal aid for the purpose of filing a constitutional motion itself constitutes a violation of the Covenant. The Committee notes that the Covenant does not contain an express obligation as such for a State to provide legal aid for individuals in all cases but only, in accordance with article 14, paragraph 3 (d), in the determination of a criminal charge where the interests of justice so require.

13.3       The Committee is aware that the role of the Constitutional Court is not to determine the criminal charge itself, but to ensure that applicants receive a fair trial in all cases, whether criminal or civil. The State party has an obligation, under article 2, paragraph 3, of the Covenant, to make the remedies in the Constitutional Court addressing violations of fundamental rights available and effective.

13.4       The determination of rights in proceedings in the Constitutional Court must conform with the requirements of a fair hearing in accordance with article 14, paragraph 1. In this particular case, the Constitutional Court would be called on to determine whether the author's conviction in a criminal trial has violated the guarantees of a fair trial. In such cases, the application of the requirement of a fair hearing in the Constitutional Court should be consistent with the principles in paragraph 3 (d) of article 14. It follows that where a convicted person seeking constitutional review of irregularities in a criminal trial has not sufficient means to meet the costs of legal assistance in order to pursue his constitutional remedy and where the interests of justice so require, legal assistance should be provided by the State. In the present case the absence of legal aid has denied to the author the opportunity to test the regularities of his criminal trial in the Constitutional Court in a fair hearing, and is thus a violation of article 14, paragraph 1, juncto article 2, paragraph 3.

13.5       The author also claims that the failure of the Court of Appeal to issue a written judgement violates his right under article 14, paragraph 3 (c), to be tried without undue delay, and his right under article 14, paragraph 5, to have his conviction and sentence reviewed. The State party had not provided any information to show that the Judicial Committee of the Privy Council dismissed the author's petition for special leave to appeal on any grounds other than the absence of a written judgement of the Court of Appeal. In the circumstances, the Committee finds that the author has been barred from making effective use of the remedy of petitioning the Judicial Committee of the Privy Council for special leave to appeal. The Committee recalls that article 14, paragraph 3 (c), and article 14, paragraph 5, are to be read together, so that the right to review of conviction and sentence must be made available without undue delay. c/ In this connection, the Committee refers to its earlier jurisprudence b/ and reaffirms that under article 14, paragraph 5, a convicted person is entitled to have, within reasonable time, access to written judgements, duly reasoned, for all instances of appeal in order to enjoy the effective exercise of the right to have conviction and sentence reviewed by a higher tribunal according to law. The Committee is of the opinion that the failure of the Court of Appeal to issue a written judgement, 13 years after the dismissal of the appeal, constitutes a violation of article 14, paragraphs 3 (c) and 5.

13.6       The Committee is of the opinion that the imposition of a sentence of death upon conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is possible, a violation of article 6 of the Covenant. As the Committee noted in its general comment 6 (16), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that "the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence and the right to review by a higher tribunal." d/ In the present case, since the final sentence of death was passed without due respect for the requirements for a fair trial set out in article 14, paragraphs 3 (c) and 5, there has accordingly also been a violation of article 6 of the Covenant.

14. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 14, paragraph 1, juncto article 2, paragraph 3, article 14, paragraphs 3 (c) and 5, and consequently article 6 of the International Covenant on Civil and Political Rights.

15. In capital punishment cases, the obligation of States parties to observe rigorously all the guarantees for a fair trial set out in article 14 of the Covenant admits of no exception. The failure to provide Mr. Currie an effective right to appeal without undue delay in accordance with article 14, paragraphs 3 (c) and 5, of the Covenant, means that he did not receive a fair trial within the meaning of the Covenant. Consequently, he is entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective remedy. The Committee is of the view that in the circumstances of the case, this entails his release. The State party is under an obligation to ensure that similar violations do not occur in the future.

16. The Committee would wish to receive information, within ninety days, on any relevant measures taken by the State party in respect of the Committee's views.

[Adopted in English, French and Spanish, the English text being the original version.]

Notes

            a/        The author refers, inter alia, to the Committee's views in Earl Pratt and Ivan Morgan v. Jamaica, communications Nos. 210/1986 and 225/1987, adopted on 6 April 1989 (see Official Records of the General Assembly, Forty-fourth Session, Supplement No. 40 (A/44/40), annex X.F).

            b/       Official Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/40), annex XII.K, communication No. 320/1988 (Victor Francis v. Jamaica), views adopted on 24 March 1993; ibid., Forty-seventh Session, Supplement No. 40 (A/47/40), annex IX.J, communication No. 283/1988 (Aston Little v. Jamaica), views adopted on 1 November 1991; and ibid., annex IX.B, communication No. 230/1987 (Raphael Henry v. Jamaica), views adopted on 1 November 1991.

            c/        Ibid., Forty-fourth Session, Supplement No. 40 (A/44/40), annex X.F, communications Nos. 210/1986 and 225/1987 (Earl Pratt and Ivan Morgan v. Jamaica), views adopted on 6 April 1989, paras. 13.3 to 13.5.

            d/       Ibid., Thirty-seventh Session, Supplement No. 40 (A/37/40), annex V, general comment 6 (16), para. 7.

              M. Communication No. 407/1990, Dwayne Hylton v. Jamaica

                  (views adopted on 8 July 1994, fifty-first session)

Submitted by: Dwayne Hylton (represented by counsel)

Victim: The author

State party: Jamaica

Date of communication: 24 June 1990

Date of decision on admissibility: 16 October 1992

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

            Meeting on 8 July 1994,

            Having concluded its consideration of communication No. 407/1990, submitted to the Human Rights Committee by Mr. Dwayne Hylton under the Optional Protocol to the International Covenant on Civil and Political Rights,

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

            Adopts its views under article 5, paragraph 4, of the Optional Protocol.

1.         The author of the communication is Dwayne Hylton, a Jamaican citizen awaiting execution at St. Catherine District Prison, Jamaica. He claims to be a victim of violations of his human rights by Jamaica. He is represented by counsel.

The facts as submitted by the author

2.1       On 26 August 1986, the author was taken into custody at the Mandeville police station, Parish of Manchester. On 10 September 1986, he was charged, together with four other men, for the murder, on 7 July 1986, of one C. P. He was tried together with one I. C. and one D. W. in the Manchester Circuit Court in Mandeville. On 26 May 1988, the three men were found guilty as charged, convicted and sentenced to death. The Court of Appeal of Jamaica dismissed the author's appeal on 15 March 1990. When the Committee considered the question of the admissibility of the communication, the author was in the process of petitioning the Judicial Committee of the Privy Council for special leave to appeal; his petition to that body was dismissed on 29 October 1992.

2.2       The author submits that he was unrepresented from the time of his arrest to the time of the preliminary hearing, which took place in October 1986. He indicates that when the hearing started, the examining magistrate asked him if he was represented. After replying in the negative, a lady sitting at the lawyers table told the judge that she had been assigned to represent the author. The author complains that even during the preliminary enquiry, she did not make any effort to communicate with him.

2.3       As to his representation prior to and during the trial, the author contends that it was not until two days before the trial started that he was assigned a lawyer. Counsel allegedly ignored his request to discuss the case prior to the trial; during the trial, the author spoke with him only once, for about 20 minutes. On one occasion, he told counsel that one of the jurors had been seen talking to the investigating officer. Counsel did not react; nor did he call the author's mother to testify, in spite of the author's request to do so.

2.4       On 10 October 1987, an application for a change of venue was filed by the lawyer of I.C., as it was feared that the accused would not obtain a fair trial in Mandeville, the home town of the deceased. The judge, however, refused to change the venue. The author submits that the judge's refusal to grant a change of venue amounted to a miscarriage of justice. According to the author, it was clear that he would not receive a fair trial in Mandeville, because of "widespread publicity and the actual prejudice and hostility generated by persons attending the court and awaiting outside". Moreover, the author claims that the mayor of Mandeville, the uncle of the deceased, used his political influence to have them sentenced. At the end of the trial, one juror allegedly told the author and his co-defendants that most of the jurors had been intimidated by the mayor.

2.5       As to the appeal, the author states that in early March 1990, only two weeks before the hearing, he was notified of the dates of the appeal, and that one Mr. J. H. had been assigned to represent him. He immediately wrote to J. H., explaining that he had never had the opportunity to discuss his case with previous counsel, and that he would like to meet him prior to the hearing; if not, he would assume that counsel could not, or would not, represent him on appeal. The author did not receive a reply to his enquiries and learned that his appeal was dismissed on 15 March 1990. He doubts whether J. H. represented him at all.

2.6       The author further states that on 9 September 1989, warders of St. Catherine District Prison beat one P. L. to death in his cell. Those responsible for his death were not prosecuted. Since the incident, the two co-defendants of P. L. allegedly received death threats from warders. a/ On 28 May 1990, after being subjected for two weeks to a special regime of detention (only one or two meals per day, some days without water or the possibility to empty slop pails, as well as incommunicado detention), the ordinary prisoners of the "New Hall" block of the prison forced open their cells and began to protest for food, water and better treatment. The inmates of death row joined the protest at around 10.30 to 11 a.m. The warders were then sent away from the death row section and the army was called in. At the soldiers' request, the death row inmates returned to their cells. The warders then returned and began to search all the cells. The author alleges that during this search, many inmates of the "Gibralta" death row section, including himself, were severely beaten by the warders.

2.7       As a result, three inmates died, among others the author's co-defendant, D. W.; other inmates were seriously injured (injuries reportedly included fractured jaws and skulls). Since the death of D. W., the author and his other co-defendant, I. C., have allegedly repeatedly been threatened with death by warders. The author adds that the warders allegedly told death row inmates that "since the State party was not prepared to hang them" they would devise "other ways of decreasing the death row population".

2.8       On 30 May 1990, the author complained to the Parliamentary Ombudsman about repeated violence in the prison and requested an investigation into the killing of the four inmates, as well as into the continued threats and ill-treatment by the prison warders. By letter of 27 June 1990, the Ombudsman acknowledged the receipt of the complaint, promising that it would receive prompt attention. The author has not received any subsequent reply on the substance of his complaint.

The complaint

3.         Although the author does not invoke any of the provisions of the International Covenant on Civil and Political Rights, it appears from his submissions that he claims to be a victim of violations by Jamaica of articles 7, 10 and 14 of the Covenant.

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

4.1       The State party argued that the communication was inadmissible because of non-exhaustion of domestic remedies. It noted that, with respect to his criminal case, the author could still petition the Judicial Committee of the Privy Council for special leave to appeal, and that legal aid would be available for this purpose under section 3 of the Poor Prisoners' Defence Act.

4.2       As to the author's allegations that he was subjected to ill-treatment, that he received threats to his life and that he was denied a fair hearing, the State party argued that the provisions of the Covenant protecting these rights are co-terminous with the rights protected by sections 17 and 20 of the Jamaican Constitution. Under section 25 of the Constitution, any person who alleges that his fundamental rights have been, are being or are likely to be infringed may apply to the Supreme Court for constitutional redress. A right of appeal lies from the Supreme Court to the Court of Appeal and thereafter to the Judicial Committee of the Privy Council. Since the author failed to take action to pursue his constitutional motion in the Supreme Court, the communication should be declared inadmissible.

5.1       In his comments, the author reiterated that he was still receiving threats from warders. In this context, he stated that he had written twice to the Jamaica Council for Human Rights, but that he had not received a reply.

5.2       In a further letter, the author submitted that since those responsible for the death of the three inmates were about to be tried, he had been subjected to "a massive amount of threats" by other warders, and that he feared for his life.

The Committee's decision on admissibility

6.1       During its forty-sixth session, the Committee considered the admissibility of the communication. With regard to the author's allegations under article 14 of the Covenant, the Committee noted that the author was in the process of petitioning the Judicial Committee of the Privy Council. Accordingly, the Committee found that domestic remedies had not been exhausted in this respect.

6.2       As to the author's claims under articles 7 and 10 of the Covenant, the Committee noted the State party's contention that the communication was inadmissible because of the author's failure to pursue constitutional remedies available to him. In this connection, the Committee considered that, in the absence of legal aid, a constitutional motion did not constitute an available remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol, which the author should still exhaust. The Committee further was satisfied that the author had exercised reasonable diligence in seeking redress for the alleged ill-treatment and threats to which he was, and allegedly remained, subjected. It also noted that the State party had failed to inform the Committee as to whether it did investigate the events complained of by the author. Accordingly, the Committee found that, in this respect, the requirements of article 5, paragraph 2 (b), of the Optional Protocol had been met.

6.3       On 16 October 1992, the Committee declared the communication admissible in so far as it might raise issues under articles 7 and 10 of the Covenant.

The State party's objections to the decision on admissibility and the author's further comments thereon

7.1       In a submission dated 15 April 1993, the State party contends that the communication remains inadmissible because the author has failed to seek constitutional redress of the alleged breaches of his rights.

7.2       Concerning the Committee's request to the State party (as set out in the decision on admissibility) to provide information about the result of such investigations as may have taken place into the author's allegations under articles 7 and 10 of the Covenant, the State party affirms that its Ministry of National Security and Justice had started an investigation into the prison disturbances which occurred on 9 September 1989 at St. Catherine District Prison; it further states that the author was interviewed by investigating officers, and that he gave a written statement on 12 February 1992. The State party concludes that it will inform the Committee as soon as a final report is available on the matter. As of May 1994, no further information on the matter had been received.

8.1       The author states, by submission of 10 February 1993, that on 27 January 1993, the offence for which he has been convicted was classified as a capital offence under the Offences against the Person (Amendment) Act 1992. He submits that: "From the moment that I received the notification, ... the warders ... are taunting me with death threats and some of them keep on telling me that they are the ones who will be taking me to the gallows and what size rope will fit my neck and how much weight it will take to take my head off my body". He states that as a result of this psychological torture, he has sustained ulcers.

8.2       The author reiterates that he has exhausted all available domestic remedies; he argues that while he retains a theoretical right to file a constitutional motion, in practice this right remains illusory, given the absence of legal aid for the purpose.

8.3       With regard to the State party's information about the investigation, it is submitted that an investigation into riots, in which several inmates lost their lives and in which many others were seriously wounded, cannot amount to redress for the ill-treatment suffered if it is initiated over two years after the material events and if no final report has been prepared almost five years later. Moreover, the State party has failed to investigate the numerous other occasions on which the author was subjected to ill-treatment and death threats from prison warders.

Examination of the merits

9.1       The Committee has taken note of the State party's argument on admissibility in respect of the availability of constitutional remedies which the author may still pursue. It reiterates that domestic remedies within the meaning of the Optional Protocol must be both available and effective, and that in the absence of effective legal aid made available by the State party for the purpose, a constitutional motion is not a remedy available to Mr. Hylton. There is, therefore, no reason to revise the Committee's decision on admissibility of 16 October 1992.

9.2       With regard to the author's claims under articles 7 and 10 of the Covenant, the Committee notes that the State party has confined itself to indicating that the riots which occurred at St. Catherine District Prison on 9 September 1989 are being investigated, that the author was interviewed by investigating officers and that he gave a statement on 12 February 1992. It has not addressed the author's claims in respect of the events at St. Catherine District Prison that occurred on 28 May 1990, nor has it addressed the author's claims concerning death threats received from prison warders. Article 4, paragraph 2, of the Optional Protocol, however, enjoins the State party to investigate thoroughly, in good faith and within the imparted deadlines, all the allegations of violations of the Covenant made against it, and to make available to the Committee all the information at its disposal.

9.3       The author alleges that he was severely beaten by prison warders during a search of the cells of the death row section at St. Catherine District Prison on 28 May 1990. He claims that since the death of one of his co-defendants, who died as a result of the violence, he has repeatedly been threatened with death by warders, and that the amount of threats increased after those responsible for the death of three inmates were indicted. He further claims that he continues to suffer from psychological torture by the warders, in particular after his case was classified as a capital case in January 1993. These claims have not been refuted by the State party. Furthermore, since the State party has confined itself to the general observation that an investigation was initiated by the Ministry of National Security and Justice into the prison disturbances which occurred at St. Catherine District Prison on 9 September 1989, the Committee remains uninformed whether the threats and ill-treatment to which the author himself allegedly was, and remains, subjected, are also under investigation. In the absence of further information on such investigations, and taking into account that such investigations as have been undertaken do not appear to have been concluded four and a half years after the events, due weight must be given to the author's allegations to the extent that they have been substantiated. Taking into account the detailed description of the events by the author and in view of the lack of information from the State party, the Committee considers that the threats and the ill-treatment to which Mr. Dwayne Hylton has been subjected by the prison warders amount to cruel and inhuman treatment within the meaning of article 7, and also entail a violation of article 10, paragraph 1, 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 7 and 10, paragraph 1, of the Covenant.

11.1      In accordance with the provisions of article 2 of the Covenant, the State party is under an obligation to take effective measures to remedy the violations suffered by Mr. Hylton, including the award of appropriate compensation, and to ensure that similar violations do not occur in the future. In particular, the State party is requested to complete the investigations into the threats and the ill-treatment to which Mr. Hylton has been subjected and to punish those held to be responsible for his treatment.

11.2      The Committee would wish to receive information, within 90 days, on any relevant measures adopted by the State party in respect of the Committee's views.

[Adopted in English, French and Spanish, the English text being the original version.]

Notes

            a/        One of P.L.'s co-defendants, N.P., submitted a communication to the Human Rights Committee; communication No. 404/1990, declared inadmissible on 5 April 1993, at the Committee's forty-seventh session (see Official Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/40), annex XIII.D).

             N. Communication No. 412/1990, Auli Kivenmaa v. Finland

                 (views adopted on 31 March 1994, fiftieth session)*

Submitted by: Auli Kivenmaa (represented by counsel)

Victim: The author

State party: Finland

Date of communication: 7 March 1990

Date of decision on admissibility: 20 March 1992

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

            Meeting on 31 March 1994,

            Having concluded its consideration of communication No. 412/1990, submitted to the Human Rights Committee by Ms. Auli Kivenmaa under the Optional Protocol to the International Covenant on Civil and Political Rights,

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

            Adopts its views under article 5, paragraph 4, of the Optional Protocol.

1.         The author of the communication is Ms. Auli Kivenmaa, a Finnish citizen and Secretary-General of the Social Democratic Youth Organization. She claims to be a victim of a violation by Finland of articles 15 and 19, alternatively, article 21, of the International Covenant on Civil and Political Rights. She is represented by counsel.

The facts

2.1       On 3 September 1987, on the occasion of a visit of a foreign head of State and his meeting with the President of Finland, the author and about 25 members of her organization, amid a larger crowd, gathered across from the Presidential Palace, where the leaders were meeting, distributed leaflets and raised a banner critical of the human rights record of the visiting head of State. The police immediately took the banner down and asked who was responsible. The author identified herself and was subsequently charged with violating the Act on Public Meetings by holding a "public meeting" without prior notification.

2.2       The above-mentioned Act on Public Meetings has not been amended since 1921, nor upon entry into force of the Covenant. Section 12 (1) of the Act makes it a punishable offence to call a public meeting without notification to the police at least six hours before the meeting. The requirement of prior notification applies only to public meetings in the open air (sect. 3). A meeting is not public if only those with personal invitations can attend (sect. 1 (2)).

________________________

            *         The text of an individual opinion submitted by Mr. Kurt Herndl is appended.

Section 1 (1) provides that the purpose of a "meeting" is to discuss public matters and to make decisions on them. Section 10 of the Act extends the requirement of prior notification to public ceremonial processions and marches.

2.3       Although the author argued that she did not organize a public meeting, but only demonstrated her criticism of the alleged human rights violations by the visiting head of State, the City Court, on 27 January 1988, found her guilty of the charge and fined her 438 markkaa. The Court was of the opinion that the group of 25 persons had, through their behaviour, been distinguishable from the crowd and could therefore be regarded as a public meeting. It did not address the author's defence that her conviction would be in violation of the Covenant.

2.4       The Court of Appeal, on 19 September 1989, upheld the City Court's decision, while arguing, inter alia, that the Act on Public Meetings, "in the absence of other legal provisions" was applicable also in the case of demonstrations; that the entry into force of the Covenant had not repealed or amended said Act; that the Covenant allowed restrictions of the freedom of expression and of assembly, provided by law; and that the requirement of prior notification was justified in the case because the "demonstration" was organized against a visiting head of State.

2.5       On 21 February 1990, the Supreme Court denied leave to appeal, without further motivation.

The complaint

3.         The author denies that what took place was a public meeting within the meaning of the Act on Public Meetings. Rather, she characterizes the incident as an exercise of her right to freedom of expression, which is regulated in Finland by the Freedom of the Press Act and does not require prior notification. She contends that her conviction was, therefore, in violation of article 19 of the Covenant. She alleges that the way in which the courts found her actions to come within the scope of the Act on Public Meetings constitutes ex analogia reasoning and is, therefore, insufficient to justify the restriction of her right to freedom of expression as being "provided by law" within the meaning of article 19, paragraph 3. Moreover, she contends that such an application of the Act to the circumstances of the events in question amounts to a violation of article 15 of the Covenant (nullum crimen sine lege, nulla poena sine lege), since there is no law making it a crime to hold a political demonstration. The author further argues that, even if the event could be interpreted as an exercise of the freedom of assembly, she still was not under obligation to notify the police, as the demonstration did not take the form of a public meeting, nor a public march, as defined by the said Act.

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

4.1       By submission of 21 December 1990, the State party concedes that, with regard to the author's complaint against her conviction, all available domestic remedies have been exhausted.

4.2       As to the issue of whether or not the relevant provision of the Act on Public Meetings was applicable in the author's case, the State party submits that it is a question of evidence. The State party points out that the author does not contend that said provision conflicts with the Covenant, only that its specific application in her case violated the Covenant.

5.         In her comments on the State party's submission, the author reiterates that not only convictions based on the retroactive application of criminal laws, but also those on analogous application of criminal law, violate article 15 of the Covenant.

The Committee's decision on admissibility

6.1       During its forty-fourth session, the Committee considered the admissibility of the communication. It observed that domestic remedies had been exhausted and that the same matter was not being examined under another procedure of international investigation or settlement.

6.2       On 20 March 1992, the Committee declared the communication admissible in so far as it might raise issues under articles 15, 19 and 21 of the Covenant. In its decision, the Committee requested the State party to clarify whether there was any discrimination between those who cheered and those who protested against the visiting head of State and, in particular, whether any other groups or subgroups in the larger crowd who were welcoming the visiting head of State also distributed leaflets or displayed banners, whether they gave prior notification to the police pursuant to the Act on Public Meetings, and, if not, whether they were similarly prosecuted.

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

7.1       The State party, by submission of 14 December 1992, refers to the questions put to it by the Committee and states that on 3 September 1987, there was only a small crowd of people assembled in front of the Presidential Palace; besides the author's group, there were journalists and some curious passers-by. Except for the author and her friends, no other group or subgroup which could be characterized as demonstrators, distributing leaflets or displaying banners, was present. No other groups had given prior notification to the police of their intent to hold a public meeting.

7.2       The State party recalls that article 19 of the Covenant gives everyone the right to hold opinions without interference and the right to freedom of expression, but that, under paragraph 3 of the provision, the exercise of these rights may be subject to certain restrictions as are provided by law and are necessary for respect of the rights and reputations of others, or for the protection of national security or of public order (ordre public), or of public health and morals. The State party also recalls that the Constitution of Finland protects every citizen's freedom of speech and freedom to publish, and that the exercise of these freedoms is regulated by law, in accordance with the Constitution. The State party submits that, although the wording of the Constitution concentrates on freedom of the press, it has been interpreted broadly so as to encompass freedom of expression as protected by article 19 of the Covenant. In this context, the State party emphasizes that the right to freedom of expression does not depend on the mode of expression or on the contents of the message thus expressed.

7.3       The State party submits that the right to freedom of expression may be restricted by the authorities, as long as these restrictions do not affect the heart of the right. With regard to the present case, the State party argues that the author's freedom of expression has not been restricted. She was allowed freely to express her opinions, for instance by circulating leaflets, and the police did not, after having received information about the organizer of the public meeting, hinder the author and her group from continuing their activities. The State party therefore denies that the Act on Public Meetings was applied ex analogia to restrict the right to freedom of expression.

7.4       In this context, the State party argues that a demonstration necessarily entails the expression of an opinion, but, by its specific character, is to be regarded as an exercise of the right of peaceful assembly. In this connection, the State party argues that article 21 of the Covenant must be seen as lex specialis in relation to article 19 and that therefore the expression of an opinion in the context of a demonstration must be considered under article 21, and not under article 19 of the Covenant.

7.5       The State party agrees with the author that in principle article 15 of the Covenant also prohibits ex analogia application of a law to the disadvantage of a person charged with an offence. It argues, however, that in the present case the author was not convicted of expressing her opinion, but merely of her failure to give prior notification of a demonstration, as is required by article 3 of the Act on Public Meetings.

7.6       With regard to the author's allegation that she is a victim of a violation of article 21 of the Covenant, the State party recalls that article 21 allows restrictions on the exercise of the right to peaceful assembly. In Finland, the Act on Public Meetings guarantees the right to assemble peacefully in public, while ensuring public order and safety and preventing abuse of the right of assembly. Under the Act, public assembly is understood to be the coming together of more than one person for a lawful purpose in a public place that others than those invited also have access to. The State party submits that, in the established interpretation of the Act, the Act also applies to demonstrations arranged as public meetings or street processions. Article 3 of the Act requires prior notification to the police, at least six hours before the beginning of any public meeting at a public place in the open air. The notification must include information on the time and place of the meeting as well as on its organizer. Article 12, paragraph 1, of the Act makes it a punishable offence to call a public meeting without prior notification to the police. The State party emphasizes that the Act does not apply to a peaceful demonstration by only one person.

7.7       The State party explains that the provisions of the Act have been generally interpreted as also applying to public meetings which take the form of demonstrations. In this connection, the State party refers to decisions of the Parliamentary Ombudsman, according to which a prior notification to the police should be made if the demonstration is arranged at a public place in the open air and if other persons than those who have personally been invited are able to participate. The State party submits that the prior notification requirement enables the police to take the necessary measures to make it possible for the meeting to take place, for instance by regulating the flow of traffic, and further to protect the group in their exercise of the right to freedom of assembly. In this context, the State party contends that, when a foreign head of State is involved, it is of utmost practical importance that the police be notified prior to the event.

7.8       The State party argues that the right of public assembly is not restricted by the requirement of a prior notification to the police. In this connection, it refers to jurisprudence of the European Court of Human Rights. The State party emphasizes that the prior notification is necessary to guarantee the peacefulness of the public meeting.

7.9       As regards the specific circumstances of the present case, the State party is of the opinion that the actual behaviour of the author and her friends amounted to a public meeting within the meaning of article 1 of the Act on Public Meetings. In this context, the State party submits that, although the word "demonstration" is not expressly named in the Act on Public Meetings, this does not signify that demonstrations are outside the scope of application of the Act. In this connection, the State party refers to general principles of legal interpretation. Furthermore, it notes that article 21 of the Covenant does not specifically refer to "demonstrations" as a mode of assembly either. Finally, the State party argues that the requirement of prior notification is in conformity with article 21, second sentence. In this context, the State party submits that the requirement is prescribed by law, and that it is necessary in a democratic society in the interests of legitimate purposes, especially in the interest of public order.

8.1       The author, by submission of 28 April 1993, challenges the State party's description of the facts and refers to the Court records in her case. According to these records, witnesses testified that approximately one hundred persons were present on the square, among whom were persons welcoming the foreign head of State and waving miniature flags; no action was taken by the police against them, but the police removed the banner displayed by the author and her friends. According to the author, this indicates that the police interfered with her and her friends' demonstration because of the contents of the opinion expressed, in violation of article 19 of the Covenant.

8.2       The author further challenges the State party's contention that the police did not hinder the author and her group in the expression of their opinion. She emphasizes that the entrance of the foreign head of State into the Presidential Palace was a momentary event, and that the measures by the police (taking away the banner immediately after it was erected and questioning the author) dramatically decreased the possibilities for the author to express her opinion effectively.

8.3       As regards the alleged violation of article 15 of the Covenant, the author refers to her earlier submissions and maintains that applying ex analogia the Act on Public Meetings to a demonstration such as the one organized by the author is in violation of article 15 of the Covenant. In this context, the author submits that the State party's argument that article 21 of the Covenant does not include a reference to demonstrations either is irrelevant, since article 15 only prohibits analogous interpretation to the disadvantage of an accused in criminal procedures.

8.4       The author challenges the State party's contention that it should have been evident to the author that she was under obligation to notify the police of the demonstration. The author argues that this was only firmly established by the Court's decision in her own case, and that the general interpretation to which the State party refers is insufficient as basis for her conviction. The author finally submits that the description of a public meeting, within the meaning of article 1 of the Act, used by the State party is unacceptably broad and would cover almost any outdoor discussion between at least three persons.

8.5       In conclusion, the author states that she does not contest that restrictions on the exercise of the right of peaceful assembly may be justified, and that prior notification of public meetings is a legitimate form of such restrictions. However, the author does challenge the concrete application of the Act on Public Meetings in her case. She contends that this outdated, vague and ambiguous statute was used as the legal basis for police interference with her expressing concern about the human rights situation in the country of the visiting head of State. She claims that this interference was not in conformity with the law nor necessary in a democratic society within the meaning of article 21 of the Covenant. In this connection, it is again stressed that by taking away the banner, the police interfered with the most effective method for the author to express her opinion.

Issues and proceedings before the Committee

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

9.2       The Committee finds that a requirement to notify the police of an intended demonstration in a public place six hours before its commencement may be compatible with the permitted limitations laid down in article 21 of the Covenant. In the circumstances of this specific case, it is evident from the information provided by the parties that the gathering of several individuals at the site of the welcoming ceremonies for a foreign head of State on an official visit, publicly announced in advance by the State party authorities, cannot be regarded as a demonstration. In so far as the State party contends that displaying a banner turns their presence into a demonstration, the Committee notes that any restrictions upon the right to assemble must fall within the limitation provisions of article 21. A requirement to pre-notify a demonstration would normally be for reasons of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. Consequently, the application of Finnish legislation on demonstrations to such a gathering cannot be considered as an application of a restriction permitted by article 21 of the Covenant.

9.3       The right for an individual to express his political opinions, including obviously his opinions on the question of human rights, forms part of the freedom of expression guaranteed by article 19 of the Covenant. In this particular case, the author of the communication exercised this right by raising a banner. It is true that article 19 authorizes the restriction by the law of freedom of expression in certain circumstances. However, in this specific case, the State party has neither referred to a law allowing this freedom to be restricted nor established how the restriction applied to Ms. Kivenmaa was necessary to safeguard the rights and national imperatives set forth in article 19, paragraphs 2 (a) and (b) of the Covenant.

9.4       The Committee notes that while claims under article 15 have been made, no issues under this provision arise in the present case.

10.       The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of articles 19 and 21 of the Covenant.

11.       Pursuant to article 2 of the Covenant, the State party is under an obligation to provide Ms. Auli Kivenmaa with an appropriate remedy and to adopt such measures as may be necessary to ensure that similar violations do not occur in the future.

12.       The Committee would wish to receive information, within 90 days, on any relevant measures taken by the State party in respect of the Committee's views.

[Adopted in English, French and Spanish, the original version being in English].

Appendix

           Individual opinion (dissenting) submitted by Mr. Kurt Herndl

           pursuant to rule 94, paragraph 3, of the rules of procedure

           of the Committee on Human Rights, concerning the Committee's

           views on communication No. 412/1990 (Auli Kivenmaa v. Finland)

1.         While I did (and do) agree with the Committee's decision of 20 March 1992 to declare the present communication admissible inasmuch as the facts reported might raise issues under articles 15, 19 and 21 of the Covenant, I am regrettably unable to go along with the Committee's substantive decision that in the present case Finland has violated articles 19 and 21. The reason for this is that I do not share at all the Committee's legal assessment of the facts.

A. The question of a possible violation of article 21

2.1       The Committee's finding that by applying the 1907 Act on Public Meetings (hereinafter called the 1907 Act) to the author - and ultimately imposing a fine on her in accordance with section 12 of the Act - Finland has breached article 21 of the Covenant, is based on an erroneous appreciation of the facts and, even more so, on an erroneous view of what constitutes a "peaceful assembly" in the sense of article 21.

2.2       In the first sentence of paragraph 9.2 of its views the Committee rightly observes that "a requirement to notify the police of an intended demonstration in a public place six hours before its commencement may be compatible with the permitted limitations laid down in article 21 of the Covenant". A mere requirement, as contained in the 1907 Act, to notify the authorities of a public meeting several hours before it starts, is obviously in line with article 21 of the Covenant which provides for the possibility of legitimate restrictions on the exercise of the right to peaceful assembly "in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others". The 1907 Act certainly falls in this category. This is, by the way, admitted by the author herself, who asserts that she does not contest that restrictions on the exercise of the right to peaceful assembly may be justified and that prior notification of public meetings is a legitimate form of such restrictions (see para. 8.5 of the views). In her last communication she explicitly states that she is not challenging the validity of the 1907 Act in abstracto either.

2.3       The legal issue therefore centres on the question of whether the author's actions - the fact that she "and about 25 members of her organization, amid a larger crowd, gathered ..., distributed leaflets and raised a banner" (see para. 2.1 of the views) - ought or ought not to be qualified as a "public meeting" in the sense of the 1907 Act or, for that matter, as a "peaceful assembly" in the sense of article 21 of the Covenant.

2.4       In that respect, the Committee observes in paragraph 9.2 (second sentence) of its views that "it is evident from the information provided by the parties that the gathering of several individuals at the site of the welcoming ceremonies for a foreign head of State on an official visit, publicly announced in advance by the State party authorities, cannot be regarded as a demonstration". I am, much to my regret, not able to follow this reasoning.

2.5       It is not contested by the author that she and a group of people of her organization summoned by her, went to the Presidential Palace explicitly for the purpose of distributing leaflets and raising a banner and thus to publicly denounce the presence, in Finland, of a foreign head of State whose human rights record they criticized. If this does not constitute a demonstration, indeed a public gathering within the scope of article 21 of the Covenant, what else would constitute a "peaceful assembly" in that sense, and, accordingly, a "public meeting" in the sense of the 1907 Act?

2.6       In his commentary on article 21 of the Covenant, Manfred Nowak states the following:

"The term 'assembly' (réunion) is not defined but rather presumed in the Covenant. Therefore, it must be interpreted in conformity with the customary, generally accepted meaning in national legal systems, taking into account the object and purpose of this traditional human right. It is beyond doubt that not every assembly of individuals requires special protection. Rather, only intentional, temporary gatherings of several persons for a specific purpose are afforded the protection of freedom of assembly." a/

2.7       This is exactly the case with the author's manifestation in front of the Presidential Palace. The decisive element for the determination of an "assembly" - as opposed to a more or less accidental gathering (e.g. people waiting for a bus, listening to a band, etc.) - obviously is the intention and the purpose of the individuals who come together. The author is estopped from arguing that she and her group were bystanders like the other crowd, which was apparently attracted by the appearance of a foreign head of State visiting the President of Finland. She and her group admittedly joined the event to make a political demonstration. This was the sole purpose of their appearing before the Presidential Palace. The State party, therefore, rightly stated, that this was "conceptually" a demonstration.

2.8       Nor can I follow the Committee's argument in paragraph 9.2 (fourth and fifth sentences) where an attempt is made to create a link between the purpose (and thus the legality) of the restrictive legislation as such and its application in a concrete case. To say that "a requirement to pre-notify a demonstration would normally be for reasons of national security", etc., and then to continue "consequently, the application of the Finnish legislation on demonstrations to such a gathering cannot be considered as an application of a restriction permitted by article 21 of the Covenant" is, to say at least, contradictory.

2.9       If the restricting legislation as such - in the present matter the 1907 Act on Public Meetings - is considered as being within the limits of article 21 (a fact not contested by the author and recognized by the Committee) the relevant law must obviously be applied in a uniform manner to all cases falling under its scope. In other words, if the 1907 Act and the obligation therein contained to notify any "public meeting" prior to its commencement, is a valid restriction on the exercise of the right to assembly, permitted under article 21 of the Covenant, then its formal application cannot be considered as a violation of the Covenant, whatever the actual reasons (in the mind of the authorities) for demanding the notification.

2.10      The Finnish authorities, therefore, did not violate article 21 of the Covenant by insisting that the author address an appropriate notification to the authorities prior to her demonstrating in front of the Presidential Palace and by fining her subsequently for not having made such a notification. In objective terms, it would have been easy for the author to comply with the requirement of a simple notification. No reason has ever been induced by her for not doing so, except for her arguing ex post facto that she was not required to notify because her action did not fall under the 1907 Act. She seems to have deliberately chosen to disregard the provisions of the Act, and accordingly had to bear the consequences, i.e. the imposition of a fine.

B. The question of a possible violation of article 19

3.1       In paragraph 9.3 of its views the Committee emphasizes that the author exercised her right to freedom of expression by waiving a banner. As the banner was removed by the police, the Committee concludes that this violated article 19.

3.2       Surely, one will have to place the removal of the banner in the context of the whole event. The author and her group "demonstrate", they distribute leaflets, they waive a banner. The police intervenes in order to establish the identity of the person leading the demonstration (i.e. the "convener" of a public meeting under the 1907 Act). The banner is "taken down" by the police (see para. 2.1 of the views). However, the demonstration is allowed to continue. The author herself and her group go on to distribute their leaflets and presumably give vent in public to their opinion concerning the visiting head of State. There is no further intervention by the police. Hence, the "taking down" of the banner is the only fact to be retained in view of a possible violation of article 19.

3.3       The Committee has opted for a very simple façon de voir: take away the banner and you necessarily violate the right to freedom of expression. This view does not take into account the intimate and somewhat complex relationship between articles 19 and 21 and, for that matter, also article 18 of the Covenant.

3.4       The right of peaceful assembly would seem to be just one facet of the more general right to freedom of expression. In that regard John P. Humphrey in his analysis of political and related rights states as follows: "There would hardly be freedom of assembly in any real sense without freedom of expression; assembly is indeed a form of expression". b/

3.5       If, therefore, there are in force in any given State party, legal norms on the right to assembly which are in conformity with article 21 of the Covenant, including restrictions of that right which are permitted under that article, such legislation will apply to a public meeting or peaceful assembly rather than legislation on the exercise of freedom of expression. In that sense, the observation by the Government of Finland that article 21 must be seen as lex specialis in relation to article 19 (see para. 7.4 of the views) is correct. In that regard, I should like to refer to the relevant portion of the Government's submission which reads as follows: "... this means that article 19 is to be regarded, in any case, as a lex generalis in relation to article 21 (lex specialis), thus excluding the need for separate consideration under the former article". It is regrettable that the Committee, in its views, did not address this legal problem, but contented itself with the somewhat oversimplified statement that just by removing the displayed banner, the Government violated the author's right to freedom of expression. Would the Committee still have found a violation of article 19 if it had found no violation of article 21? Hardly.

C. The question of a possible violation of article 15

4.1       Although the Committee, in its admissibility decision of 20 March 1992, clearly retained article 15 among the articles which might have been violated by the Government of Finland, it completely failed to address the issue of article 15 in its final views. This is all the more surprising as the author in all her submissions, including her last rejoinder, had again and again emphasized that her being fined by the Helsinki City Court (on the basis of section 12 of the 1907 Act) was tantamount to a retroactive application, by analogy, of criminal law. While this argument may be considered on the surface as rather subtle, it is contradicted by the facts of the case.

4.2       The author was convicted not for having expressed her political opinions in a specific way but merely for her undisputed omission "to give the prior notification required by section 3 of the Act on Public Meetings for arranging a certain kind of a public meeting, in her case a demonstration" (as submitted by the State party). Even on the assumption, that applying the 1907 Act with regard to the author's actions was erroneous, which, in turn, might have infringed on the author's rights under article 21 of the Covenant, her conviction on the basis of that same Act surely cannot be qualified as a "retroactive" application of criminal law, forbidden by article 15 (nullum crimen, nulla poena sine lege). Perhaps the Committee thought the argument too far-fetched and unreasonable. In any event, the Committee should have included in its final views a statement to the effect that in the present case Finland has not violated article 15.

[Done in English, French and Spanish, the original version being in English.]

Notes

            a/        Manfred Nowak, United Nations Covenant on Civil and Political Rights, CCPR Commentary (Kehl-Strasbourg-Arlington, Engel Publisher, 1993), p. 373.

            b/        John P. Humphrey, "Political and Related Rights", in Human Rights in International Law, Legal and Policy Issues, Theodor Meron ed. (Oxford, Clarendon Press, 1984), vol. I, p. 188.

      O. Communication No. 414/1990, Primo J. Mika Miha v. Equatorial Guinea

          (views adopted on 8 July 1994, fifty-first session)

Submitted by: Primo José Essono Mika Miha

Victim: The author

State party: Equatorial Guinea

Date of communication: 28 May 1990 (initial submission)

Date of decision on admissibility: 16 October 1992

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

            Meeting on 8 July 1994,

            Having concluded its consideration of communication No. 414/1990, submitted to the Human Rights Committee by Mr. Primo José Essono Mika Miha 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 its views under article 5, paragraph 4, of the Optional Protocol.

1.         The author of the communication is Primo José Essono Mika Miha, a citizen of Equatorial Guinea born in 1940. He also holds a Spanish passport and currently resides in Madrid. The author claims to be a victim of violations by Equatorial Guinea of articles 3; 6, paragraph 3; 7; 9, paragraphs 1, 2, 4 and 5; 10, paragraph 1; 12, paragraphs 1 and 2; 14, paragraphs 1, 3 (b) and 5; 16; 17, paragraphs 1 and 2; 19, paragraphs 1 and 2; 21; and 22, paragraphs 1 to 3, of the International Covenant on Civil and Political Rights. The Optional Protocol entered into force for Equatorial Guinea on 25 December 1987.

The facts as presented by the author

2.1       The author is a former official of past governments of the Republic of Equatorial Guinea. In 1968, he was elected Deputy of the First Assembly of the Republic; in 1971, he was appointed Permanent Representative of his country to the United Nations. In 1974, he was nominated Ambassador of Equatorial Guinea to Cameroon and the Central African Republic. After the election and the installation of President Macias, the author resigned from his post and left the country, together with his family, for Spain, where he requested political asylum.

2.2       After the death of President Macias, the author returned to his country and took up the post of Director of Administrative, Cultural and Consular Affairs in the new Government's Ministry of Foreign Affairs. In 1982, he once again left the country and sought refuge in Spain, as he feared persecution at the hands of the clan of Mongomo, to which President Obiang Nguema (who had replaced President Macias) belongs.

2.3       On an unspecified date in the summer of 1988, the author returned to Equatorial Guinea, so as actively to support the activities of the opposition party (Partido de Progreso) of which he is a member. At around 11:30 p.m. on 16 August 1988, he was abducted by members of the security forces in a street of Malabo, the country's capital. He claims that he was handcuffed and blind-folded, and that a handkerchief was pushed into his mouth in order to silence him. He was told that President Obiang had ordered his arrest, but no further explanations were given; the author contends that he was arrested solely because of his activities for the Partido de Progreso.

2.4       After his arrest, the author was detained on board a ship and allegedly deprived of food and drink for one week. He was then transferred to the prison of Bata on the mainland, where he allegedly was tortured for two days. The author provides detailed information about the ill-treatment he was subjected to and explains that torture is practised in an open field close to the beach at night, and that not only police officers but also members of the Government attend these sessions. It appears that several other individuals who had been arrested at approximately the same time as the author, and who also belonged to the Partido de Progreso, suffered the same fate as the author. a/

2.5       The author does not specify the nature of the injuries sustained during torture but claims that he was subsequently kept in detention for well over one month without any medical assistance. He adds that the conditions of detention at the prison of Bata are deplorable, that detainees hardly receive any food unless it is brought to them by relatives, and that they must sleep on the floor.

2.6       On 10 January 1990, while still in detention, the author underwent surgery on his right elbow, made necessary to prevent the development of a serious infection and a tumor, which according to him can be causally linked to the ill-treatment sustained during the summer of 1988. In support of his contention, he submits copies of medical reports, X-rays and the results of medical analyses carried out by a Spanish laboratory. On 1 March 1990, he was released, without any explanations being offered; the authorities did not return to him all the personal belongings (money, plane tickets, jewellery) taken from him after his arrest. He then returned to Spain, where he currently teaches in a public school.

2.7       As to the requirement of exhaustion of domestic remedies, the author submits that such judicial remedies as exist in Equatorial Guinea are totally ineffective. According to the author, the judiciary is directly controlled by President Obiang Nguema himself, who also has his say in the appointment of the judges. As a result, local courts and tribunals are neither independent nor impartial; in this context, the author dismisses the trial against him and a number of co-defendants as summary ("procedimiento sumarísimo"), which did not meet the criteria for a fair hearing. He does not, however, provide further information about the date, venue or circumstances of the trial.

2.8       According to the author, recourse to appellate instances is impossible, as they either do not exist or have fallen into disuse. The author adds that regardless of whether a criminal offence may be tried only after a formal indictment or summarily, trials are conducted summarily, as in his own case. He submits that frequently it is not the tribunal but the President himself who decides on the sentence to be imposed on the accused.

The complaint

3.         The author submits that the facts as described above constitute violations of articles 3; 6, paragraph 3; 7; 9, paragraphs 1, 2, 4 and 5; 10, paragraph 1; 12, paragraphs 1 and 2; 14, paragraphs 1, 3 (b) and 5; 16; 17, paragraphs 1 and 2; 19, paragraphs 1 and 2; 21; and 22, paragraphs 1 to 3, of the Covenant.

The State party's observations

4.1       In its submission under rule 91 of the rules of procedure, dated 12 October 1991, the State party challenges the admissibility of the communication, arguing that it violates elemental norms of international law and constitutes an interference into domestic affairs of Equatorial Guinea ("esta comunicación viola las normas elementales del derecho internacional y constituye una ingerencia en los asuntos del Estado ecuatoguineano").

4.2       In this context, the State party explains that the author voluntarily relinquished his Equatorial-Guinean citizenship in 1982 and instead opted for Spanish nationality. As there is neither an agreement nor a treaty between Spain that governs the acquisition of double nationality, and as the author is currently a Spanish civil servant, he is not, in the State party's opinion, subject to its own jurisdiction.

The Committee's decision on admissibility

5.1       During its forty-sixth session, the Committee considered the admissibility of the communication. It dismissed the State party's contention that the author was not subject to its jurisdiction, since the author had been detained in Equatorial Guinea from 16 August 1988 until 1 March 1990 and thus had clearly been subject to the State party's jurisdiction. The Committee recalled that article 1 of the Optional Protocol applies to individuals subject to the jurisdiction of the State concerned who claim to be victims of a violation by that State of their rights under the Covenant, regardless of their nationality. It further noted that the State party's acceptance of the Committee's competence under the Optional Protocol implied that considerations of domestic policy could not be advanced to prevent the Committee from considering claims from individuals subject to the State party's jurisdiction.

5.2       On the issue of exhaustion of domestic remedies, the Committee observed that the State party had not indicated which remedies were available and would be effective in the circumstances of the case. It concluded that the requirements of article 5, paragraph 2 (b), had been met.

5.3       In respect of the author's claims under articles 3; 6, paragraph 3; 16, 17, 21 and 22, the Committee concluded that they had not been substantiated, for purposes of admissibility, and accordingly concluded that the author had no claim within the meaning of article 2 of the Optional Protocol.

5.4       On 16 October 1992, the Committee declared the communication admissible in so far as it appeared to raise issues under articles 7, 9, 10, 12, 14, and 19 of the Covenant.

Examination of the merits

6.1       The State party's deadline for the submission of information and observations under article 4, paragraph 2, of the Optional Protocol expired in June 1993. No submission on the merits has been received from the State party, in spite of a reminder addressed to it on 2 May 1994.

6.2       The Committee notes with regret and concern that the State party has not cooperated with it as far as the provision of information on the substance of the author's claims is concerned. Article 4, paragraph 2, of the Optional Protocol enjoins a State party to investigate thoroughly, in good faith and within the imparted deadlines, all the allegations of violations of the Covenant made against it, and to make available to the Committee in written form all the information at its disposal. This the State party has failed to do. Accordingly, due weight must be given to the author's allegations, to the extent that they have been substantiated.

6.3       The Committee has noted the State party's contention that the communication constitutes an interference into its domestic affairs. The Committee strongly rejects the State party's argument and recalls that when ratifying the Optional Protocol, the State party accepted the Committee's competence to consider complaints from individuals subject to the State party's jurisdiction.

6.4       The author has claimed, and the State party has not refuted, that he was deprived of food and water for several days after his arrest on 16 August 1988, tortured during two days after his transfer to the prison of Bata and left without medical assistance for several weeks thereafter. The author has given a detailed account of the treatment he was subjected to and submitted copies of medical reports that support his conclusion. On the basis of this information, the Committee concludes that he was subjected to torture at the prison of Bata, in violation of article 7; it further observes that the deprivation of food and water after 16 August 1988, as well as the denial of medical attention after the ill-treatment in or outside of the prison of Bata, amounts to cruel and inhuman treatment within the meaning of article 7, as well as to a violation of article 10, paragraph 1.

6.5       As to the author's allegation that he was arbitrarily arrested and detained between 16 August 1988 and 1 March 1990, the Committee notes that the State party has not contested this claim. It further notes that the author was not given any explanation of the reasons for his arrest and detention, except that the President of the Republic had ordered both, that he was not brought promptly before a judge or other officer authorized by law to exercise judicial power, and that he was unable to seek the judicial determination, without delay, of the lawfulness of his detention. On the basis of the information before it, the Committee finds a violation of article 9, paragraphs 1, 2 and 4. On the same basis, the Committee concludes, however, that there has been no violation of article 9, paragraph 5, as it does not appear that the author has in fact claimed compensation for unlawful arrest or detention. Nor is the Committee able to make a finding in respect of article 9, paragraph 3, as it remains unclear whether the author was in fact detained on specific criminal charges within the meaning of this provision.

6.6       The author has claimed a violation of article 12, paragraphs 1 and 2. There is no indication, however, that he was either deprived of his passport or other documents, that the State party restricted his liberty of movement, or that he was denied the right to leave his country. On the basis of the material before the Committee, it appears, rather, that the author left Equatorial Guinea of his own free will, both in 1982 and 1990; nor is there an indication that restrictions were placed on his freedom of movement after his return to Equatorial Guinea in the summer of 1988 and prior to his arrest on 16 August 1988. The Committee thus concludes that there has been no violation of article 12.

6.7       The author has alleged that his trial was summary, and that the judicial system in Equatorial Guinea is neither impartial nor independent. In this context, the Committee has in particular noted the author's contention that the State party's President directly controls the judiciary in Equatorial Guinea. However, the information provided by the author has not been sufficient to substantiate his claim under article 14. The Committee therefore concludes that there has been no violation of article 14, paragraph 1.

6.8       In respect of issues under article 19, finally, the Committee notes that the State party has not refuted the author's claim that he was arrested and detained solely or primarily because of his membership in, and activities for, a political party in opposition to the regime of President Obiang Nguema. In the circumstances of the case, the Committee concludes that the State party has unlawfully interfered with the exercise of the author's rights under article 19, paragraphs 1 and 2.

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 material before it discloses violations of articles 7; 9, paragraphs 1, 2 and 4; 10, paragraph 1; and 19, paragraphs 1 and 2, of the Covenant.

8.         Under article 2 of the Covenant, the State party is under an obligation to provide Mr. Mika Miha with an appropriate remedy, including appropriate compensation for the treatment to which he has been subjected.

9.         The Committee would wish to receive information, within 90 days, on any measures taken by the State party in respect of the Committee's views.

[Adopted in English, French and Spanish, the English text being the original version]

Notes

            a/        The author provides a list with the names of these individuals.

        P. Communication No. 417/1990, Manuel Balaguer Santacana v. Spain

            (views adopted on 15 July 1994, fifty-first session)*

Submitted by:                                                               Manuel Balaguer Santacana

Alleged victims:                                                            The author and his daughter,

                                                                                      María del Carmen Balaguer Montalvo

State party:                                                                    Spain

Date of communication:                                               9 July 1990 (initial submission)

Date of decision on admissibility:                                25 March 1992

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

            Meeting on 15 July 1994,

            Having concluded its consideration of communication No. 417/1990, submitted to the Human Rights Committee by Mr. Manuel Balaguer Santacana on behalf of himself and his daughter, María del Carmen Balaguer Montalvo 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 its views under article 5, paragraph 4, of the Optional Protocol.

1.         The author of the communication is Manuel Balaguer Santacana, a Spanish citizen born in 1940 and residing in Barcelona, Spain. He submits the communication on his behalf and on behalf of his daughter, María del Carmen Balaguer Montalvo, born in 1985, claiming that they are victims of violations by Spain of articles 23, paragraphs 1 and 4, and 24, paragraph 1, of the International Covenant on Civil and Political Rights. The Optional Protocol entered into force for Spain on 25 April 1985.

The facts as submitted by the author

2.1       The author states that in November 1983 he and María del Carmen Montalvo

Quiñones decided to live together. On 15 October 1985, Ms. Montalvo gave birth to a girl, who was recognized by both parents and registered on the Registro Civil of Barcelona under the name of María del Carmen Balaguer Montalvo. The author further states that after the birth of the child, their relationship deteriorated irremediably; on 7 October 1986, Ms. Montalvo left the common household, taking the child with her. After several weeks, the author learned that she had moved to Badalona, a town near Barcelona.

________________________

            *         The text of an individual opinion submitted by Mrs. Elizabeth Evatt is appended.

2.2       On 10 November 1986, the author filed with the Third Chamber of the Badalona Court (Juzgado Tres de Instrucción y Primera Instancia de Badalona) case No. 18/86 under the regime of "voluntary jurisdiction" (jurisdicción voluntaria), with a view to obtaining the recognition of his paternal authority (patria potestad) and visiting rights to his child. On 28 January 1987, the judge decided that provisional measures should be taken until a final decision was issued in the matter. The author was authorized to spend every Saturday or Sunday from 11 a.m. to 8 p.m. with his daughter, who by then was one year old. In February 1987 he saw his daughter, believed her to be in ill-health and took her to a doctor, keeping her for four days. Subsequent to this visit, the mother refused to let him see the child for a period of 19 months until November 1988.

2.3       On 23 June 1988, the Badalona Court issued an enforcement order (auto de obligado cumplimiento) against Ms. Montalvo, which she appealed to the Superior Court of Barcelona (Tribunal Superior) while continuing to deny the author access to his daughter. One year later, on 23 June 1989, the Superior Court affirmed the order of 23 June 1988.

2.4       On 19 July 1989, the mother started a contentious action (demanda de menor cuantía) before the Badalona Court (case No. 406/89) aimed at modifying the provisional decisions of 28 January 1987 and 23 June 1988. On 16 March 1990, the Court decided to suspend the proceedings of voluntary jurisdiction pending decision on the contentious matter. The author appealed against this decision on 22 March 1990. Nearly two years later, on 31 January 1992, the Superior Court (Tribunal Superior) rejected the author's appeal.

2.5       The author also applied to the Dirección General de atención a la infancia de la Conselleria de Benestar Social de la Generalitat de Catalunya, requesting that his daughter's case be further investigated and protective measures adopted. The department seized of the matter carried out a summary investigation and accepted to consider it in more detail. In April 1990, however, the same department informed the author that it had received an explicit order from the court of first instance to refrain from further examining the case, since the court considered that it alone was competent.

2.6       The author emphasizes the urgency of the matter, since these are his daughter's formative years. He claims that irreparable harm is being done to her by depriving her of the opportunity of having contact with her father. In this connection, he refers to pertinent psychological and sociological studies that conclude that the separation of a child from any one parent may have serious psychological consequences. He finally invokes the Convention on the Rights of the Child, in particular article 9, paragraph 3, which provides:

"States parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests".

The complaint

3.         The author claims that he is a victim of a violation of article 23, paragraphs 1 and 4, of the Covenant, because he has been denied family rights and equality of treatment by the Spanish courts in the award of child custody and because of the failure of the courts to act promptly in enforcing a regime of reasonable parental visits. He also claims a violation of his daughter's rights under article 24, paragraph 1, of the Covenant, since a child should be afforded access to both parents, especially during her formative years, except in very specific circumstances. He further claims that Spanish legislation does not sufficiently guarantee the right of access and that the practice of Spanish courts, as illustrated by his own and many other cases, reveals a bias in favour of mothers and against fathers. Although he does not specifically invoke article 26 of the Covenant, the author's allegations also pertain to this provision.

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

4.1       The State party, in submissions dated 14 January, 15 February, 10 April and 10 September 1991 and 20 and 26 February 1992, objects to the admissibility of the communication as an abuse of the right of submission under article 3 of the Optional Protocol and further argues that the author has failed to exhaust domestic remedies, as required by article 5, paragraph 2 (b), of the Optional Protocol.

4.2       The State party summarizes recent developments in the pending proceedings as follows:

A. Proceedings under "non-contentious jurisdiction"

1.Order of 16 March 1990 of the Badalona Court which suspended the proceedings under non-contentious jurisdiction.

2.Mr. Balaguer, having been notified of this order, filed an application for reconsideration (recurso de reposición) of the order, which was dismissed on 30 April 1990.

3.On 25 June 1990, Mr. Balaguer submitted a further request for review, with a subsidiary appeal (recurso de reforma y subsidiario de apelación).

4.Procedural order of 25 June 1990, declaring the request for review inadmissible subsequent to the application for reconsideration having been lodged and a decision given, and ordering the application for leave to appeal (recurso de apelación) to be processed.

5.Procedural order by the judge, dated 18 December 1990, ordering the parties to be summoned to appear before the Superior Court.

6.Receipt of the orders made under non-contentious jurisdiction by Section Fifteen of the Superior Court of Barcelona, to which the appeal lodged by Mr. Balaguer was transmitted.

7.Procedural order, dated 31 January 1991, by Section Fifteen of the Superior Court, by which the Barcelona Bar was requested to appoint a court lawyer for Mr. Balaguer.

8.Procedural order, dated 23 May 1991, relating to the appointment of the representative for Mr. Balaguer.

9.Procedural order, dated 21 June 1991, authorizing the file to be made available to Mr. Balaguer's lawyer.

10.On 31 January 1992, Section Fifteen of the Superior Court of Barcelona dismissed Mr. Balaguer's appeal because the contentious action of Ms. Montalvo before the Badalona Court was deemed to take precedence.

B. Contentious proceedings of minor jurisdiction

1.On 10 January 1991, in the contentious proceedings instituted by Ms. Montalvo in respect of parental authority and custody of the child, Mr. Balaguer challenged the competence of the Badalona Court by entering a written plea to the jurisdiction on the grounds that he was domiciled in Barcelona.

2.Procedural order of 17 January 1991 acknowledging the plea and recording that the issue of competence had been raised.

3.Answer by the Government Attorney to the objection on the issue of competence, dated 4 March 1991, proposing that it should be dismissed as being untimely, since it should have been raised within a period of six days following the summons to answer the case.

4.Procedural order of 6 May 1991 calling for evidence on the contested issue.

5.Procedural order of 10 July 1991 stating that the issue is awaiting decision.

6.On 12 September 1991, Mr. Balaguer submits to the Court information about his journalistic activities in Barcelona.

7.On 16 September 1991, the Court requests clarification from the Barcelona City Hall.

8.On 19 September 1991, the Administrative Division of the High Court of Justice of Catalonia requests information from the Court concerning the complaint made by Mr. Balaguer seeking to establish judicial liability on the part of members of the Badalona Third Chamber.

9.On 24 September 1991, the Administrative Division of the High Court of Justice of Catalonia receives information from the Court concerning the accusation made by Mr. Balaguer.

10.On 1 October 1991, it is agreed to schedule hearings for the 16th of that month.

11.On 15 October 1991, the General Council of the Judiciary is informed of the steps being taken in the case, in view of its interest following the complaint by Mr. Balaguer.

12.On 16 October 1991, the parties' counsel and advocates do not appear for the hearings.

13.On 18 October 1991, the attorney for Ms. Carmen Montalvo Quiñones requests acceptance of his withdrawal from the case.

14.On 28 October 1991, the Association of Attorneys is requested to appoint a new attorney for Ms. Montalvo Quiñones.

15.On 31 January 1992, the new attorney is appointed.

16.On 21 February 1992, the court decides to make a further request to the Barcelona City Hall for clarification of Mr. Balaguer's residential status, such clarification being required in order to resolve the interlocutory matter regarding competence raised by Mr. Balaguer.

4.3       As to the duration of the proceedings, the State party affirms that the author himself is to blame, because he has engaged various procedures that have delayed final adjudication of his case. Moreover, if he claims that the proceedings are too slow, he should have filed and still could file a complaint under article 24 of the Spanish Constitution.

4.4       The State party concludes that since the issues raised by Mr. Balaguer are being dealt with by the Spanish courts in the exercise of Spanish sovereignty, domestic remedies have not been exhausted, and that the communication should be declared inadmissible.

4.5       With regard to the merits, the State party indicates that on two occasions the author misused his visiting rights by keeping his daughter longer than permitted. It denies any discrimination in the pertinent Spanish law and indicates, inter alia, that the competent judge acted pursuant to the law applicable in 1986 (article 159 of the Civil Code), which provided as follows: "if the parents are separated and do not decide by mutual agreement, male and female children less than seven years of age shall remain in the custody of the mother, unless the judge for special reasons rules otherwise". Article 160 provides that "the father and the mother, even if not exercising parental authority, shall have the right of access to their minor children". The State party contends that these provisions are fully compatible with the Covenant and refers in this connection to the Committee's views on communication No. 201/1985, Hendriks v. the Netherlands. a/

5.1       As to the delays in the proceedings, the author informed the Committee on 21 August 1991 that:

            (a)       From the date of his initial petition for visiting rights (relación paterno-filial) there has been an interval of 1,747 days (5 and one half years as of the time of the present decision by the Committee);

            (b)       The interval between the Badalona Court's order and the Superior Court's confirmatory order was 360 days;

            (c)       The interval between the Superior Court's order and the Badalona Court's order of suspension was 238 days.

5.2       He further adds that following the order by the court of first instance suspending an order from a superior court, proceedings have been delayed for no apparent reason:

            (a)       The interval between the submission of the appeal against the suspension order (22 March 1990) and the transfer of the case to the Superior Court was 300 days;

            (b)       The time elapsed from the submission of the appeal (22 March 1990) to date (August 1991) has been 517 days.

5.3       The author thus complains that as at August 1991 the court had not decided on his application for visiting arrangements and had not made a ruling, although 1,747 days had elapsed.

5.4       By a letter dated 24 February 1992 the author challenges the rationale of the decision of the Superior Court of Barcelona of 31 January 1992 suspending his previously recognized right to access, which he had been unable to exercise in view of "the mother's intransigence and opposition in attitude of revenge". He adds that this last decision under the regime of voluntary jurisdiction is not subject to appeal.

5.5       The author claims that the application of domestic remedies in his case has been unreasonably prolonged, within the meaning of article 5, paragraph 2, of the Optional Protocol. In this context he refers to the Committee's admissibility decision in communication No. 238/1987. b/

The Committee's decision on admissibility

6.1       During its forty-fourth session, in March 1992, the Committee considered the admissibility of the communication. The Committee first considered whether the author had standing to act on his daughter's behalf, as he was not the custodial parent. It noted that it was evident that the author's daughter could not herself submit a communication to the Committee, and further observed that the bond between a father and his daughter, as well as the nature of the allegations in the case, were sufficient to justify representation of the author's daughter by her father.

6.2       The Committee ascertained that the same matter was not being considered under another procedure of international investigation or settlement.

6.3       As to the requirement of exhaustion of domestic remedies, the Committee noted the State party's indication that proceedings in the case remained pending. It observed that Mr. Balaguer's attempts to vindicate a right of access to his daughter had begun in 1986 and that he had not seen his daughter for several years. Taking into account the proviso in article 5, paragraph 2 (b), about undue prolongation of remedies, coupled with the fact that the situation (in 1992) prevented both the author and his daughter from having contact with each other, the Committee deemed it unreasonable to expect the author to continue to await a final decision on custody and visiting rights and considered a delay of over five years in the determination, at first instance, of a right of access in custodial disputes to be excessive. It concluded that article 5, paragraph 2 (b), did not preclude it from considering the merits of the case.

6.4       On 25 March 1992, the Committee declared the communication admissible in so far as it appeared to raise issues under articles 23, paragraphs 1 and 4; 24, paragraph 1; and 26 of the Covenant.

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

7.1       In its submission under article 4, paragraph 2, of the Optional Protocol dated 16 November 1992, the State party challenges the Committee's conclusion that the author has standing to act on his daughter's behalf. In this context, it noted that it ascertained that:

            (a)       The author never complied with his obligations, agreed to in January 1987 with the child's mother, to contribute financially to the girl's upbringing;

            (b)       His allegations relating to the poor physical health of his daughter have proven false;

            (c)       His allegations relating to the presumed disorderly lifestyle of the mother have been proven wholly false;

            (d)       The author never purported to act as representative of his daughter in the domestic judicial proceedings.

7.2       As to whether the same matter is under examination by another instance of international investigation or settlement, the State party questions the veracity of the author's initial submissions to the Committee, given that:

            (a)       He has written twice to the office of examining magistrate of Badalona with indications that his case is pending before the "international court of justice" (tribunal internacional de justicia) so as to vindicate his rights;

            (b)       He has indicated to the same office that he has presented his case to the United Nations Educational, Scientific and Cultural Organization (UNESCO) in Paris, in his function as "secretary-general" of a non-governmental organization.

In the circumstances, the State party requests the Committee's confirmation that the requirements of article 5, paragraph 2 (a), of the Protocol have been met.

7.3       As to the issue of exhaustion of domestic remedies, the State party reiterates that both in respect of non-contentious jurisdiction and contentious proceedings of minor jurisdiction (see paragraph 4.2 above), available and effective domestic remedies have not been exhausted. With respect to the purported "undue prolongation" of domestic remedies, the State party emphasizes that this rule is inapplicable in the author's case, as all the delays in the proceedings (both non-contentious and contentious) are solely attributable to Mr. Balaguer. Thus, the author's own behaviour and his repeated refusal to comply with the terms of access initially agreed upon led to the decision of the Badalona Court of 16 March 1990 to suspend proceedings under non-contentious jurisdiction. As to the contentious jurisdiction, the State party recalls that the author himself is the defendant in these proceedings - as a result, he has seen fit to delay these proceedings as much as possible, either by challenging the jurisdiction of the Court of Badalona or by changing legal representatives. The State party notes that all legal representatives assigned to or chosen by the author have, after varying periods of time, refused to represent him any further.

7.4       The State party explains that the custody of children (patria potestad) is governed by articles 154, 156 and 159 of the Civil Code. Article 159 was amended in October 1990 by Law 11/1990, out of concern that the previous provision, which as a rule gave custody to the mother save under exceptional circumstances, discriminated on the basis of sex. Under the provision as amended, the judge must decide, in the best interest of the children, which of the parents will be awarded custody and, to the extent that this is possible and reasonable, hear the children; it is mandatory to hear children over the age of 12. The State party points out that at no point, before the change in legislation or afterwards, did the author seek custody of his daughter, either before the local courts or before the Committee. By contrast, it was the girl's mother who, since the end of 1989, has sought to obtain a ruling on the exclusive custody of the child.

7.5       The State party recalls that the right of access of parents to their children is governed by article 160 of the Civil Code. Under article 159, paragraph 3, the judge decides on the modalities of access and on the special conditions of access, with a view to avoiding harm to the children. The State party rejects as "totally unjustified" and unsubstantiated the author's claim that his right of access has been violated ("Es una ... denuncia radicalmente falsa").

7.6       The State party affirms that article 23, paragraph 1, does not apply in the author's case. It argues that the cohabitation, of limited duration, from April 1985 until shortly after the birth of Maria del Carmen, between the author, a 44-year old married man, and Carmen Montalvo, a 17-year old minor, does not qualify as a "family" within the meaning of article 23, paragraph 1. Furthermore, the relationship between the author and Ms. Montalvo, highly problematic while it lasted and never placed on firm legal grounds, cannot, in the State party's opinion, be deemed a "fundamental [element] of society" which is entitled to "protection by society and the State". Rather, the State party qualifies the author's behaviour as bigamy.

7.7       In the State party's opinion, article 23, paragraph 4, cannot apply in the author's case either, as the author never formalized his relationship with Ms. Montalvo, either through marriage or other legal arrangements. As a result, there cannot be any question of a "dissolution" of a marriage within the meaning of article 23, paragraph 4, first sentence, which would trigger the State party's obligation to guarantee the equality of rights and responsibilities of spouses. The State emphasizes that the author was married when a child was born out of his relationship with Ms. Montalvo.

7.8       As to the alleged violation of article 24, paragraph 1, the State party affirms that the author's daughter has not suffered discrimination of any type, and that, as a minor, she is given the requisite measures of protection, both by her mother and by the State.

7.9       The State party dismisses as absolutely unfounded ("radicalmente falsa") the author's allegations under article 26, namely that he is discriminated against in relation to his right of access to his daughter. It explains that under Spanish legislation, no distinction is made between legitimate and illegitimate children; for both, the parents have the same rights and responsibilities, which are guaranteed by law. In particular, any parent has the right of access to his or her child; in conflict situations, it is incumbent upon the (family) judge to take the necessary measures to avoid any harm to the children. The procedure, the State party submits, was strictly followed in the author's case.

7.10       In this context, the State party recalls that the author and Ms. Montalvo agreed, in January 1987 and with the approval of a judge, upon a visiting rights regime, under which the girl could spend several days during every second weekend ("unos dias") with the author. The first time the author made use of this right, he disappeared with the child for four days, and the mother had to travel to Paris, where she found the child, according to the State party, in disgraceful circumstances ("en lamentables condiciones"). The second time, the author once again took off with his daughter, this time for four months, during which he did not maintain a fixed domicile, taking refuge, at one point, in a religious institution. Those incidents, the State party affirms, did not deprive the author of his right of access.

7.11       After appropriate psychological tests, the parents, again with the judge's approval, agreed that the author could visit his daughter in an appropriate public institution or public place. This form of contact between father and daughter produced unsatisfactory results, as the child displayed signs of anguish and discomfort during the visits. Thereafter, the mother proposed, and the judge agreed, that contacts between the author and his daughter take place at her home; under the terms of this agreement, the author would be allowed to see his daughter alone, in the mother's absence but with the assistance of the police (Mossos d'esquadra).

7.12       According to the State party, the author rejected this form of contact with his daughter. Rather, he requested that the child be brought to an orphanage ("un establecimiento de acogida, es decir un orfanato"), where he would then visit her. Faced with this attitude of the author, and given that the mother had, in the meantime, initiated judicial proceedings, the judge suspended non-contentious proceedings by decision of 14 March 1990. The State party underlines that this decision did not deny the author his right of access to his daughter.

7.13       The author, rather than accepting the visiting rights regime negotiated earlier, proceeded to file recourse upon recourse, requesting that the initial visiting rights regime of January 1987 be reinstated. The State party notes that, significantly, the author has never filed similar requests in the context of the contentious proceedings. The State party concludes that no one, be it the mother, the authorities or the judge, has denied the author the right of access to his daughter; rather, the latter has simply refused to avail himself of the formula deemed by all to be the one that is in the child's best interest, namely contacts between child and father in the mother's home but in her absence.

7.14       In the light of all of the above, and given that the author has at times chosen to misrepresent his situation and deliberately to distort his claims both before the local courts and before the Human Rights Committee, the State party requests that the Committee dismiss Mr. Balaguer's complaint as an abuse of the right of submission.

8.1       In his comments, dated June and 6 September 1993, the author dismisses the State party's submission as untruthful, distorting the facts, devious and reflecting the outdated societal and family concepts of the Spanish authorities and/or the law. The Committee, after carefully examining the author's comments, however, feels obliged to note that they frequently amount to critical comments directed against the government official responsible for the State party's submission in the instant case. To the extent that this is the case, the Committee will not consider the author's comments.

8.2       Mr. Balaguer reaffirms that he is entitled to represent his daughter before the Committee, not however by refuting the State party's observations but by reference to paragraph 6.2 of the Committee's decision on admissibility. He confirms that his case has not been presented to another instance of international investigation or settlement and contends that the State party's doubts in this respect are designed to discredit him.

8.3       To the State party's reaffirmation that domestic remedies have not been exhausted and that delays in the adjudication of the matter must be attributed to the author himself, Mr. Balaguer replies that the judge of the Badalona Court has never seen fit to handle the requests to determine the issue of custody and visiting rights properly and in accordance with the applicable law. No indication is, however, given as to which laws and regulations have not been observed by the State party's judicial authorities. The author adds that he cannot exhaust available domestic remedies by way of appeal or amparo, since the court of first instance had not handed down a decision at first instance more than seven years after his initial petition.

8.4       The author reaffirms that he is a victim of violations of articles 23, paragraphs 1 and 4; 24, paragraph 1; and 26; he does so by reference to his earlier submissions, which in his opinion clearly demonstrate that his allegations are well-founded. In particular, he submits that the relationship with his daughter must be subsumed under the term "family" within the meaning of article 23, paragraph 1, and that the family unit has not benefitted from the requisite protection of the State.

8.5       Apart from violations of the Covenant, the author contends that the Spanish authorities have violated article 9 of the Convention on the Rights of the Child in his case, and in particular of paragraph 3 of this provision, which he claims guarantees the contact with both mother and father for children whose parents are separated. It is submitted that the attitude of the judicial authorities in the case constitutes a violation of article 9 of the Convention, notwithstanding the Government's assurance that the Convention would be incorporated into domestic law.

8.6       The author accuses the State party of not citing, or citing incorrectly, the applicable domestic laws and regulations, the relevant jurisprudence of domestic tribunals, or relevant international instruments. A careful analysis of his comments reveals, however, that he does not himself cite any provisions of the Spanish Civil Code, the Code of Civil Procedure, regulations governing family relations or the jurisprudence of the domestic courts, save for unidentified excerpts of Supreme Court or Constitutional Court decisions.

Review of admissibility issues and examination of the merits

9.1       The Committee has considered the present communication in the light of all the information provided by the parties. It takes note of the State party's reiterated request that the complaint be dismissed as an abuse of the right of submission, as well as the author's rebuttal.

9.2       The Committee has taken note of the State party's observations questioning the decision on admissibility of 25 March 1992. Having duly considered the arguments summarized in paragraphs 7.1 to 7.3 above, the Committee concludes that there is no reason to revise its decision on admissibility. c/ Firstly, in respect of the question of the author's standing to represent his daughter, it reiterates that standing under the Optional Protocol may be determined independently of national regulations and legislation governing an individual's standing before a court of law. This means that regardless of what Mr. Balaguer did to represent his daughter's interests before the Spanish courts, the considerations in paragraph 6.2 above apply. Secondly, the Committee has ascertained that the author's case is not pending before another instance of international investigation or settlement. Finally, while it is true that many delays in the proceedings must be attributed to the author himself, it none the less remains that after several years of contentious proceedings, there is no evidence of a judicial decision at first instance. In a dispute about custody rights and access to children, the Committee considers this delay to be unreasonable.

10.1       On the merits, the questions before the Committee concern the scope of articles 23, paragraphs 1 and 4; and 24, paragraph 1; i.e. whether or not these provisions guarantee an unqualified right of access for a divorced or separated parent, and a child's right to have contact with both parents. Another issue is whether decisions on custody and access rights in the case have been based on distinctions made between fathers and mothers and, if so, whether these distinctions are based on objective and reasonable criteria, as follows from the application of article 26 of the Covenant.

10.2       The State party has argued that article 23, paragraphs 1 and 4, do not apply to the case, as the author's unstable relationship with Ms. Montalvo cannot be subsumed under the term "family", and no marital ties between the author and Ms. Montalvo ever existed. The Committee begins by noting that the term "family" must be understood broadly; it reaffirms that the concept refers not solely to the family home during marriage or cohabitation, but also to the relations in general between parents and child. d/ Some minimal requirements for the existence of a family are, however, necessary, such as life together, economic ties, a regular and intense relationship, etc.

10.3       In the instant case, irrespective of the nature of the author's relationship with Ms. Montalvo, the Committee observes that the State party has always acknowledged that the relations between the author and his daughter were protected by the law and that the mother, between 1986 and 1990, never objected to the author's contacts with his daughter. It was only after Mr. Balaguer continuously failed to observe, and objected to, the modalities of his right of access, that she sought exclusive custody and non-contentious proceedings were suspended. The Committee concludes that there has been no violation of article 23, paragraph 1.

10.4       The Committee further notes that article 23, paragraph 4, does not apply in the instant case, as Mr. Balaguer was never married to Ms. Montalvo. If paragraph 4 is placed into the overall context of article 23, it becomes clear that the protection of the second sentence refers only to children of the marriage which is being dissolved. In any event, the material before the Committee justifies the conclusion that the State party's authorities, when determining custody or access issues in the case, always took the child's best interests into consideration. This is true also for the decisions of the Third Chamber of the Court of Badalona, which the author has singled out in particular.

10.5       The author has claimed a violation of article 24, paragraph 1, since his daughter, as a minor, has not benefited from the appropriate measures of protection, by law or otherwise, on the part of her family and the State. The Committee cannot share this conclusion. On the one hand, the girl's mother has, on the basis of the available documentation, fulfilled her obligations as custodian of the child; secondly, there is no indication that the applicable Spanish law, in particular sections 154, 156, 159 and 160 of the Civil Code, do not provide for appropriate protection of children upon dissolution of a marriage or the separation of unmarried parents.

10.6       Finally, having examined the material before it, the Committee concludes that no issues arise under article 26 in the circumstances of the case. There is no indication that the author was treated arbitrarily and on the basis of unreasonable criteria by the Spanish authorities, or that he was treated differently from others in a similar situation.

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 do not reveal a breach by the State party of any of the provisions of the Covenant.

[Adopted in English, French and Spanish, the English text being the original version.]

Notes

            a/        Official Records of the General Assembly, Forty-third Session, Supplement No. 40 (A/43/40), annex VII.H, views adopted on 27 July 1988.

            b/        Ibid., Forty-fourth Session, Supplement No. 40 (A/44/40), annex X.I, Floresmilo Bolaños v. Ecuador, views adopted on 26 July 1989.

            c/        The Committee regrets that subsequent to the decision on admissibility, the parties have become locked in disputes that are of little relevance to the content of the initial communication. It notes that the file reveals that the author used his demarches before the Human Rights Committee for purposes of the proceedings, to which he is party, before the Court of Badalona. Thus, it transpires that he used United Nations stationery in correspondence with the Court of Badalona, although he was not authorized to do so. While these occurrences do not have a direct bearing on the examination of communication No. 417/1990, they may discredit the procedure under the Optional Protocol.

            d/        See Official Records of the General Assembly, Forty-third Session, Supplement No. 40 (A/43/40), annex VII.H, communication No. 201/1985 (Hendriks v. the Netherlands), views adopted on 27 July 1988, para. 10.3.

                                      Appendix

         Individual opinion (concurring) submitted by Mrs. Elizabeth Evatt

         under rule 94, paragraph 3, of the rules of procedure of the

         Committee on Human Rights, concerning the Committee's views on

          communication No. 417/1990 (Manuel Balaguer Santacana v. Spain)

            I agree with the Committee's conclusion that there has been no violation of the author's rights under the Covenant. I agree also that, in the circumstances of the case, it is not necessary to apply article 23, paragraph 4, since the measures of protection required for a minor under article 24, paragraph 1, also require that decisions about custody and access (visiting rights) be decided on the basis of the child's best interests.

            I do not agree, however, with an interpretation of the concept of "marriage" in article 23, paragraph 4, which would automatically exclude its application to relationships which, while not "formal" marriages, are in the nature of marriage and share many of its attributes including joint responsibility for the care and upbringing of children. Legal regimes applying to such relationships should, in my view, be in conformity with article 23, paragraph 4.

[Done in English, French and Spanish, the English text being the original version.]

        Q. Communication No. 418/1990, C. H. J. Cavalcanti Araujo-Jongen

            v. the Netherlands (views adopted on 22 October 1993,

            forty-ninth session)

Submitted by:              C. H. J. Cavalcanti Araujo-Jongen

                                    (represented by counsel)

Alleged victim: The author

State party:                                         The Netherlands

Date of communication: 16 August 1990 (initial submission)

Date of decision on admissibility: 20 March 1992

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

            Meeting on 22 October 1993,

            Having concluded its consideration of communication No. 418/1990, submitted to the Human Rights Committee by Mrs. C. H. J. Cavalcanti Araujo-Jongen under the Optional Protocol to the International Covenant on Civil and Political Rights,

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

            Adopts its views under article 5, paragraph 4, of the Optional Protocol.

The facts as submitted by the author

1.         The author of the communication is Mrs. C. H. J. Cavalcanti Araujo-Jongen, a citizen of the Netherlands, residing at Diemen, the Netherlands. She claims to be a victim of a violation by the Netherlands of article 26 of the International Covenant on Civil and Political Rights. She is represented by counsel.

2.1       The author was born in 1939 and is married to Mr. Cavalcanti Araujo. From September 1979 to January 1983, she was employed as a part-time secretary for 20 hours a week. As of 1 February 1983, she was unemployed. In virtue of the Unemployment Act she was granted unemployment benefits. In conformity with the provisions of the Act, the benefits were granted for the maximum period of six months (until 1 August 1983). The author subsequently found new employment, as of 24 April 1984.

2.2       Having received benefits under the Unemployment Act for the maximum period, the author, as an unemployed person in 1983-1984, contends that she was entitled to benefits under the Unemployment Benefits Act, for a maximum period of two years. These benefits amounted to 75 per cent of the last salary, whereas benefits under the Unemployment Act amounted to 80 per cent of the last salary.

2.3       The author, on 11 December 1986, applied for benefits under the Unemployment Benefits Act to the Municipality of Leusden, her then place of residence. Her application was rejected on 8 April 1987 on the grounds that as a married woman who did not qualify as a breadwinner, she did not meet the requirements of the Act. The rejection was based on article 13, paragraph 1, subsection 1 of the Unemployment Benefits Act, which did not apply to married men.

2.4       On 2 July 1987, the Municipality confirmed its earlier decision. The author subsequently appealed to the Board of Appeal at Utrecht, which, by decision of 22 February 1988, declared her appeal to be well-founded; the decision of 8 April 1987 was set aside.

2.5       The Municipality then appealed to the Central Board of Appeal, which, by judgement of 10 May 1989, confirmed the Municipality's earlier decisions and set aside the Board of Appeal's decision. The author claims she has exhausted all available domestic remedies.

The complaint

3.1       In the author's opinion, the denial of benefits under the Unemployment Benefits Act amounts to discrimination within the meaning of article 26 of the Covenant. She refers to the views of the Human Rights Committee regarding communications No. 172/1984 (Broeks v. the Netherlands) and No. 182/1984 (Zwaan-de Vries v. the Netherlands).

3.2       In its judgement of 10 May 1989, the Central Board of Appeal concedes, as in earlier judgements, that article 26 in conjunction with article 2 of the International Covenant on Civil and Political Rights applies also to the granting of social security benefits and similar entitlements. The Central Board further observed that the explicit exclusion of married women, unless they meet specific requirements that are not applicable to married men, implies direct discrimination on the ground of sex in relation to (marital) status. However, the Central Board held that "as far as the elimination of discrimination in the sphere of national social security legislation is concerned, in some situations there is room for a gradual implementation with regard to the moment at which unequal treatment ... cannot be considered acceptable any longer, as well as in view of the question of when, in such a case, the moment has come at which article 26 of the Covenant in relation to national legislation cannot be denied direct applicability any longer". The Central Board concluded in relation to the provision in the Unemployment Benefits Act that article 26 of the Covenant could not be denied direct applicability after 23 December 1984, the time-limit established by the Third Directive of the European Economic Community (EEC) regarding the elimination of discrimination between men and women within the Community.

3.3       The author notes that the Covenant entered into force for the Netherlands on 11 March 1979, and that, accordingly, article 26 was directly applicable as of that date. She contends that the date of 23 December 1984 was chosen arbitrarily, as there is no formal link between the Covenant and the Third EEC Directive. The Central Board had not, in earlier judgements, taken a consistent view with regard to the direct applicability of article 26. In a case relating to the General Disablement Act, for instance, the Central Board decided that article 26 could not be denied direct applicability after 1 January 1980.

3.4       The author submits that the Netherlands had, when ratifying the Covenant, accepted the direct applicability of its provisions, in accordance with articles 93 and 94 of the Constitution. Furthermore, even if a gradual elimination of discrimination were permissible under the Covenant, the transitional period of almost 13 years between the adoption of the Covenant in 1966 and its entry into force for the Netherlands in 1979, was sufficient to enable it to adapt its legislation accordingly.

3.5       The author claims she suffered damage as a result of the application of the discriminatory provisions in the Unemployment Benefits Act, in that benefits were refused to her for the period of 1 August 1983 to 24 April 1984. She contends that these benefits should be granted to women equally as to men as of 11 March 1979 (the date the Covenant entered into force for the Netherlands), in her case as of 1 August 1983, notwithstanding measures adopted by the Government to grant married women WWV benefits equally after 23 December 1984.

The Committee's decision on admissibility

4.1       During its forty-fourth session, the Committee considered the admissibility of the communication. It noted that the State party, by submission of 11 December 1990, raised no objections against admissibility and conceded that the author had exhausted available domestic remedies.

4.2       On 20 March 1992, the Committee declared the communication admissible inasmuch as it might raise issues under article 26 of the Covenant.

State party's submission on the merits and author's comments

5.1       By submission of 8 December 1992, the State party argues that the author's communication is unsubstantiated, since the facts of the case do not reveal a violation of article 26 of the Covenant.

5.2       The State party submits that article 13, paragraph 1, subsection 1 of the Unemployment Benefits Act, on which the rejection of the unemployment benefit of the author was based, was abrogated by law of 24 April 1985. In this law, however, it was laid down that the law which was in force to that date - including the controversial article 13, paragraph 1, subsection 1 - remained applicable in respect of married women who had become unemployed before 23 December 1984. As these transitionary provisions were much criticized, they were abolished by Act of 6 June 1991. As a result, women who had been ineligible in the past to claim benefits under the Unemployment Benefits Act because of the breadwinner criterion, can claim these benefits retroactively, provided they satisfy the other requirements of the Act. One of the other requirements is that the applicant be unemployed on the date of application.

5.3       The State party therefore contends that if the author had been unemployed on the date of application for benefits under the Unemployment Benefits Act, she would be eligible for retroactive benefits on the basis of her unemployed status as from 1 February 1983. However, since the author had found other employment as of April 1984, she could not claim retroactive benefits under the Unemployment Benefits Act. The State party emphasizes that since the amendment of the law on 6 June 1991, the obstacle to the author's eligibility for a benefit is not the breadwinner criterion, but her failure to satisfy the other requirements under the law that apply to all, men and women alike.

5.4       The State party submits that by amending the law in this respect, it has complied with the principle of equality before the law as laid down in article 26 of the Covenant.

5.5       Moreover, the State party reiterates the observations it made in connection with communications Nos. 172/1984 a/ and 182/1984. b/ It emphasizes that the intent of the breadwinner criterion in the Unemployment Benefits Act was not to discriminate between married men and married women, but rather to reflect a fact of life, namely, that men generally were breadwinners, whereas women were not. The State party argues therefore that the law did not violate article 26 of the Covenant, since objective and reasonable grounds existed at the time to justify the differentiation in treatment between married men and married women.

5.6       Furthermore, the State party argues that the implementation of equal rights in national legislation depends on the nature of the subject-matter to which the principle of equality must be applied. The State party contends that in the field of social security, differentiation is necessary to bring about social justice. The incorporation of the breadwinner criterion in WWV should be seen in this light, as its object was to limit the eligibility of the benefit to those who were breadwinners. In this context, the State party refers to the individual opinion c/ appended to the Committee's views in communication No. 395/1990, d/ which states that "article 26 of the Covenant should not be interpreted as requiring absolute equality or non-discrimination in [the field of social security] at all times; instead it should be seen as a general undertaking on the part of States parties to the Covenant to review regularly their legislation in order to ensure that it corresponds to the changing needs of society".

5.7       In this connection, the State party submits that it regularly adjusts its social security legislation to accommodate shifts in the prevailing social climate and/or structure, as it has done in the Unemployment Benefits Act. The State party concludes that by amending the Act in 1991, it has complied with its obligations under article 26 and article 2, paragraphs 1 and 2, of the Covenant.

6.1       By submission of 8 March 1993, counsel stresses that the central issue in the communication is whether article 26 of the Covenant had acquired direct effect before 23 December 1984, more specifically on 1 August 1983. She argues that the explicit exclusion of married women from benefits under the Unemployment Benefits Act constituted discrimination on the grounds of sex in relation to marital status. Counsel argues that, even if objective and reasonable grounds existed to justify the differentiation in treatment between married men and married women at the time of the enactment of the provision, conditions in society no longer supported such differentiation in August 1983.

6.2       Counsel submits that, under the amended law, it is still not possible for the author, who has found new employment, to claim the benefits she was denied before. In this connection, she points out that the author failed to apply for a benefit during the period of her unemployment because the law at that time did not grant her any right to a benefit under the Unemployment Benefits Act. The author applied for a benefit after the breadwinner requirement for women was dropped as from 23 December 1984, but had by then found new employment. She therefore argues that the discriminatory effect of the said provision of the Act is not abolished for her, but still continues.

6.3       Counsel refers to the Committee's views in communications Nos. 172/1984 a/ and 182/1984 b/ and argues that even if a transitional period is acceptable to bring the law in compliance with the Covenant, the length of that period, from the entry into force of the Covenant (11 March 1979) to the amendment of the law (6 June 1991), is unreasonable. Counsel therefore maintains that article 26 of the Covenant has been violated in the author's case by the refusal of the State party to grant her a benefit under the Unemployment Benefits Act for the period of her unemployment, from 1 August 1983 to 24 April 1984.

Examination of the merits

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

7.2       The questions before the Committee are whether the author is a victim of a violation of article 26 of the Covenant (a) because the state and application of the law in August 1983 did not entitle her to benefits under the Unemployment Benefits Act, and (b) because the present application of the amended law still does not entitle her to benefits for the period of her unemployment from 1 August 1983 to 24 April 1984. In this connection, the author has also requested the Committee to find that the Covenant acquired direct effect in the Netherlands as from 11 March 1979, or in any event as from 1 August 1983.

7.3       The Committee recalls its earlier jurisprudence and observes that, although a State is not required under the Covenant to adopt social security legislation, if it does, such legislation must comply with article 26 of the Covenant.

7.4       The Committee observes that even if the law in force in 1983 was not consistent with the requirements of article 26 of the Covenant, that deficiency was corrected upon the retroactive amendment of the law on 6 June 1991. The Committee notes that the author argues that the amended law still indirectly discriminates against her because it requires applicants to be unemployed at the time of application, and that this requirement effectively bars her from retroactive access to benefits. The Committee finds that the requirement of being unemployed at the time of application for benefits is, as such, reasonable and objective, in view of the purposes of the legislation in question, namely to provide assistance to persons who are unemployed. The Committee therefore concludes that the facts before it do not reveal a violation of article 26 of the Covenant.

7.5       As regards the author's request that the Committee make a finding that article 26 of the Covenant acquired direct effect in the Netherlands as from 11 March 1979, the date on which the Covenant entered into force for the State party, or in any event as from 1 August 1983, the Committee observes that the method of incorporation of the Covenant in national legislation and practice varies among different legal systems. The determination of the question whether and when article 26 has acquired direct effect in the Netherlands is therefore a matter of domestic law and does not come within the competence of the Committee.

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 do not disclose a violation of any provision of the Covenant.

[Done in English, French and Spanish, the English text being the original version.]

Notes

            a/        Official Records of the General Assembly, Forty-second Session, Supplement No. 40 (A/42/40), annex VIII.B, Broeks v. the Netherlands, views adopted on 9 April 1987.

            b/        Ibid., annex VIII.D, Zwaan-de Vries v. the Netherlands, views adopted on 9 April 1987.

            c/        Appended by Messrs. Nisuke Ando, Kurt Herndl and Briame Ndiaye.

            d/        Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/70), annex IX.P, Sprenger v. the Netherlands, views adopted on 31 March 1992.

        R. Communication No. 425/1990, A. M. M. Doesburg Lannooij Neefs v.

            the Netherlands (views adopted on 15 July 1994, fifty-first

            session)

Submitted by: A. M. M. Doesburg Lannooij Neefs

Victim: The author

State party: The Netherlands

Date of communication: 15 August 1990 (initial submission)

Date of decision on admissibility: 26 July 1993

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

            Meeting on 15 July 1994,

            Having concluded its consideration of communication No. 425/1990 submitted to the Human Rights Committee by Mr. A. M. M. Doesburg Lannooij Neefs 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 its views under article 5, paragraph 4, of the Optional Protocol.

1.         The author of the communication, dated 15 August 1990, is Mr. A. M. M. Doesburg Lannooij Neefs, a Dutch citizen, born in 1958 and presently residing in Naarden, the Netherlands. He claims to be the victim of a violation of article 26 of the International Covenant on Civil and Political Rights by the Netherlands.

The facts as submitted by the author

2.1       In 1983, the author concluded a sublet contract with his mother, with whom he shared a house. On 29 September 1986, being unemployed, he applied for a benefit under the Social Security Act (Algemene Bijstandswet), since his allowance under the Unemployment Benefits Act (Wet Werkloosheidsvoorziening) would expire on 1 October 1986.

2.2       Under the Social Security Act, a person can receive a benefit if he does not have sufficient means to provide for his cost of living. The amount of the benefit depends on the specific circumstances of the applicant; differentiation is made, inter alia, between single persons and persons who share a household with others. Under article 1 (4) (a) of the Royal Decree of 13 March 1985 implementing the Act, a subtenant or boarder is considered to be a single person living alone and thus is entitled to a full benefit under the Act. However, the Decree limits the application of this article by declaring that a person who shares a household with a close relative cannot be considered a single subtenant or boarder unless the relative is a brother or a sister and the household is shared on a commercial basis.

2.3       On 28 October 1986, the Naarden municipality decided to grant the author a reduced benefit under the Social Security Act, based on the fact that he was sharing a household with his mother. The author sought review of this decision on 10 November 1986, and after receiving no reply within the established one-month time-limit, he appealed under article 41 of the Act to the North Holland provincial authorities, arguing, inter alia, that the distinction in the Decree between boarders and subtenants who share a house with a non-relative and those who share a house with a relative amounted to unlawful discrimination. On 24 April 1987, the Provincial Appeal Commission (Commissie Beroepszaken Administratieve Geschillen) rejected the author's appeal.

2.4       On 9 August 1990, the Council of State, Division for Administrative Litigation, (Raad van State, Afdeling Geschillen van Bestuur) rejected the author's subsequent appeal. It considered that the distinction was based on the presumption that close relatives sharing a household did so on a joint account. The Division was of the opinion that this presumption was not unreasonable and that it provided a sufficient justification for the distinction between subtenants or boarders and close relatives sharing a household.

The complaint

3.         The author contends that the differentiation in standards applied amounts to discrimination within the meaning of article 26 of the Covenant. He argues that the distinction between close relatives and others, while both are sharing a household on a commercial basis and live in the same circumstances, is unreasonable.

The Committee's decision on admissibility

4.         At its forty-eighth session, the Committee considered the admissibility of the communication. The Committee noted that the State party had confirmed that all domestic remedies had been exhausted and that it had raised no other objections to admissibility. On 26 July 1993, the Committee declared the communication admissible inasmuch as it might raise issues under article 26 of the Covenant.

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

5.1       By submissions of 30 March and 29 April 1994, the State party recalls that the author had been granted, as of 1 October 1986, benefits under the Social Security Act. The level of benefits was based on the fact that the author was a single person living with his mother. The State party explains that the purpose of the Social Security Act is to guarantee a minimum income to those who have no or insufficient income of their own. Since the main element in granting the benefits is the need of the applicant, the benefits are related to the specific circumstances of each applicant. To standardize its decision making, the State party has established different categories corresponding to different levels of benefits. According to these standards, a married couple without income will receive benefits amounting to a minimum wage income, a single parent will receive 90 per cent thereof, and a single person with no dependants 70 per cent.

5.2       The State party states that the benefits are intended to cover the necessary costs of living, including the costs of accommodation. It therefore argues that it is reasonable to reduce the level of benefits if the applicant has less expenditures because he or she is sharing a household. As a rule, single persons sharing a household on a non-commercial basis receive 60 per cent of the minimum wage income. Persons sharing a household are presumed to share equally in the costs, regardless of the factual cost distribution. Close family members living in one and the same house or apartment are presumed to share a household on a non-commercial basis. Evidence to the contrary is allowed if an applicant is living with a brother or sister, but not if he is living with a parent. In this connection, the State party argues that this distinction is related to the obligations imposed upon family members under civil law. The Dutch Civil Code imposes upon parents and children a mutual obligation to provide support in the costs of living, but does not contain a similar obligation for brothers and sisters. The State party argues that distinctions between persons who have different obligations towards each other are reasonable and do not constitute a violation of article 26 of the Covenant.

6.         In his comments, dated 17 May and 7 June 1994, the author argues that his specific situation calls for an exception to the standards applied to single persons living with a parent, since he is sharing a household with his mother on a commercial basis and therefore should be considered as a single person living alone. He contests the State party's statement that the relationship between a mother and a child is necessarily one of dependency. He argues that the legal obligation to mutual support does not only exist for those parents and children who live in the same house, but also for those who live apart from each other. He further states that his mother is not in a position to contribute to his costs of living. He argues that there is no easy solution to his case, because he has not been able to find a paid job and if he moves out of the household with his mother, he will face high housing costs, since cheap accommodations are difficult to find.

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

7.2       The Committee refers to its prior jurisprudence and reiterates that although a State is not required under article 26 of the Covenant to adopt social security legislation, if it does, such legislation must comply with article 26 of the Covenant. The right to equality before the law and to the equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26. a/

7.3       In the instant case, the Committee notes that the author's claim that he is a victim of a violation of article 26 is based on the fact that he is sharing a household with his mother and on that basis receives a lower level of benefit under the Social Security Act than he would have if he had shared it with a non-relative or with a relative in respect of whom the regulations under the Act allow evidence of a commercially shared household.

7.4       The Committee observes that benefits under the Social Security Act are granted to persons with low or no income in order to provide for their costs of living. The author himself has conceded that his costs of living are reduced since he is sharing a household with his mother, be this on a commercial basis or on a basis of mutual support. In the light of the explanations given by the State party, the Committee finds that the different treatment of parents and children and of other relatives respectively, contained in the regulations under the Social Security Act, is neither unreasonable nor arbitrary, and its application in the author's case does not amount to a violation of article 26 of the Covenant.

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 do not reveal a violation by the State party of any of the articles of the Covenant.

[Adopted in English, French and Spanish, the English text being the original version.]

Notes

            a/        See inter alia Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex IX.P, communication No. 395/1990 (M. T. Sprenger v. the Netherlands), views adopted on 31 March 1992, paragraph 7.2); and Ibid., annex IX.R, communication No. 415/1990 (Dietmar Pauger v. Austria), views adopted on 26 March 1992, paragraph 7.3.

              S. Communication No. 428/1990, François Bozize v. the

                  Central African Republic (views adopted on

                  7 April 1994, fiftieth session)

Submitted by: Yvonne M'Boissona

Victim: Her brother, François Bozize

State party: Central African Republic

Date of communication: 14 November 1990

Date of decision on admissibility: 8 July 1992

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

            Meeting on 7 April 1994,

            Having concluded its consideration of communication No. 428/1990, submitted to the Human Rights Committee by Mrs. M'Boissona, on behalf of her brother, Mr. F. Bozize, 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 its views under article 5, paragraph 4, of the Optional Protocol.

1.         The author of the communication is Yvonne M'Boissona, a citizen of the Central African Republic residing at Stains, France. She submits the communication on behalf of her brother, François Bozize, currently detained at a penitentiary at Bangui, Central African Republic. She claims that her brother is a victim of violations of his human rights by the authorities of the Central African Republic, but does not invoke any provisions of the International Covenant on Civil and Political Rights.

The facts as submitted by the author

2.1       The author states that her brother was a high-level military officer of the armed forces of the Central African Republic. On 3 March 1982, he instigated a coup d'état; after its failure, he went into exile in Benin. On 24 July 1989, the author's brother was arrested at a hotel in Cotonou, Benin, together with 11 other citizens of the Central African Republic; all were presumed members of the political opposition, the Central African Movement of National Liberation (Mouvement centrafricain de libération nationale). On 31 August 1989, Mr. Bozize and the other opposition activists were repatriated by force, allegedly with the help of a Central African Republic military commando allowed to operate within Benin; this "extradition" is said to have been negotiated between the Governments of Benin and the Central African Republic. The forced repatriation occurred without a formal extradition request having been issued by the Government of the Central African Republic.

2.2       Upon his return to Bangui, Mr. Bozize was imprisoned at Camp Roux, where he allegedly suffered serious maltreatment and beatings. The author claims that her brother was not allowed access to a lawyer of his own choosing, nor to a member of his family. Allegedly, not even a doctor was allowed to see him to provide basic medical care. Furthermore, the sanitary conditions of the prison are said to be deplorable and the food allegedly consists of rotten meat mixed with sand; as a result, the weight of Mr. Bozize dropped to 40 kilograms by the summer of 1990.

2.3       During the night of 10 to 11 July 1990, the prison authorities of Camp Roux reportedly stage-managed a power failure in the sector of town where the prison is located, purportedly to incite Mr. Bozize to attempt an escape. As this practice is said to be common and invariably results in the death of the would-be escapee, Mr. Bozize did not leave his cell. The author contends that in the course of the night, her brother was brutally beaten for several hours and severely injured. This version of the events was confirmed by Mr. Bozize's lawyer, Maître Thiangaye, who was able to visit his client on 26 October 1990 and who noticed numerous traces of beatings and ascertained that Mr. Bozize had two broken ribs. The lawyer also reported that Mr. Bozize was kept shackled, that his reading material had been confiscated and that the prison guards only allowed him out of his cell twice a week. Allegedly, this treatment is known to, and condoned by, President Kolingba and the Ministers of Defence and of the Interior.

2.4       The authorities of the Central African Republic consistently maintain that Mr. Bozize indeed attempted to escape from the prison and that he sustained injuries in the process. This is denied by the author, who points to her brother's weak physical condition in the summer of 1990 and argues that he could not possibly have climbed over the three-metre-high prison wall.

2.5       Mr. Bozize's wife, who currently resides in France, has requested the good offices of the French authorities. By a letter of 29 October 1990, the President of the National Assembly informed her that the French foreign service had ascertained that Mr. Bozize was alive and that he had been transferred to the Kassai prison at Bangui.

2.6       As to the issue of exhaustion of domestic remedies, it is submitted that criminal proceedings against Mr. Bozize were to have been opened on 28 February 1991, allegedly in order to profit from the momentary absence, owing to a trip abroad, of his lawyer. However, the trial was postponed for "technical reasons". Since then, the trial has apparently been postponed on other occasions. Mrs. Bozize complains that in the months following his arrest, her husband was denied access to counsel; later, the family retained the services of a lawyer to defend him. The lawyer, however, was denied authorization to visit his client; the lawyer allegedly also suffered restrictions of his freedom of movement on account of his client.

The complaint

3.         It is submitted that the events described above constitute violations of Mr. Bozize's rights under the Covenant. Although the author does not specifically invoke any provisions of the Covenant, it transpires from the context of her submissions that her claims relate primarily to articles 7, 9, 10, 14 and 19 of the Covenant.

The Committee's decision on admissibility

4.1       During its forty-fifth session, in July 1992, the Committee considered the admissibility of the communication. It noted with concern that in spite of two reminders addressed to the State party, in July and September 1991, no information or observations on the admissibility of the communication had been received from the State party. In the circumstances, the Committee found that it was not precluded from considering the communication under article 5, paragraph 2 (b), of the Optional Protocol.

4.2       On 8 July 1992, the Committee declared the communication admissible in so far as it appeared to raise issues under articles 7; 9; 10; 14, paragraphs 1 and 3; and 19 of the Covenant.

Examination of the merits

5.1       The State party did not provide any information in respect of the substance of the author's allegations, in spite of two reminders addressed to it in June 1993 and February 1994. The Committee notes with regret and great concern the absence of cooperation on the part of the State party in respect of both the admissibility and the substance of the author's allegations. It is implicit in article 4, paragraph 2, of the Optional Protocol and in rule 91 of the Committee's rules of procedure that a State party to the Covenant must investigate in good faith all the allegations of violations of the Covenant made against it and its authorities and furnish the Committee with the information available to it. In the circumstances, due weight must be given to the author's allegations, to the extent that they have been substantiated.

5.2       The Committee decides to base its views on the following facts, which have not been contested by the State party. Mr. François Bozize was arrested on 24 July 1989 and was taken to the military camp at Roux, Bangui, on 31 August 1989. There, he was subjected to maltreatment and was held incommunicado until 26 October 1990, when his lawyer was able to visit him. During the night of 10 to 11 July 1990, he was beaten and sustained serious injuries, which was confirmed by his lawyer. Moreover, while detained in the Camp at Roux, he was held under conditions which did not respect the inherent dignity of the human person. After his arrest, Mr. Bozize was not brought promptly before a judge or other officer authorized by law to exercise judicial power, was denied access to counsel and was not, in due time, afforded the opportunity to obtain a decision by a court on the lawfulness of his arrest and detention. The Committee finds that the above amount to violations by the State party of articles 7, 9, and 10 in the case.

5.3       The Committee notes that although Mr. Bozize has not yet been tried, his right to a fair trial has been violated; in particular, his right to be tried within a "reasonable time" under article 14, paragraph 3 (c), has not been respected, as he does not appear to have been tried at first instance after over four years of detention.

5.4       In respect of a possible violation of article 19 of the Covenant, the Committee notes that this claim has remained unsubstantiated. The Committee therefore makes no finding of a violation in this respect.

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

7.         The Committee is of the view that Mr. François Bozize is entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective remedy, including his release and appropriate compensation for the treatment suffered. The State party should investigate the events complained of and bring to justice those held responsible for the author's treatment; it further is under an obligation to take effective measures to ensure that similar violations do not occur in the future.

8.         The Committee would wish to receive prompt information on any relevant measures taken by the State party in respect of the Committee's views.

[Adopted in English, French and Spanish, the English text being the original version.]

            T. Communication No. 440/1990, Youssef El-Megreisi v. the

                Libyan Arab Jamahiriya (views adopted on 23 March 1994,

                fiftieth session)

Submitted by:                                              Youssef El-Megreisi

Victim:                                             The author's brother

                                                         Mohammed Bashir El-Megreisi

State party:                                       Libyan Arab Jamahiriya

Date of communication:                   27 December 1990

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

           Meeting on 23 March 1994,

           Having concluded its consideration of communication No. 440/1990, submitted to the Human Rights Committee by Mr. Youssef El-Megreisi on behalf of his brother, Mr. Mohammed Bashir El-Megreisi, 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,

           Adopts its views under article 5, paragraph 4, of the Optional Protocol.

1.        The author of the communication is Youssef El-Megreisi, a stateless individual of Libyan origin, born in Benghazi, Libya, in 1958, currently residing in the United Kingdom of Great Britain and Northern Ireland. He submits the communication on behalf of his brother, Mohammed Bashir El-Megreisi, a Libyan citizen, born in 1956, said to be unable himself to submit the communication. The author claims that his brother is the victim of violations of his human rights by Libya. The Optional Protocol entered into force for the Libyan Arab Jamahiriya on 16 August 1989.

The facts as submitted by the author

2.1      The author states that in January 1989, his family home at Benghazi, where the family, including his brother, his brother's wife and their two children, lived, was searched at dawn. The intruders allegedly were members of the Mukhabarat, the Libyan security police. Mohammed El-Megreisi was asked to dress and accompany them, purportedly to assist in some unspecified security matter. He never returned. The author adds that "no one could visit his brother and no one was given any information about him".

2.2      The author claims that the security police falsely suspected his brother of active involvement in politics. No specific charges were brought against Mohammed El-Megreisi, nor was a trial ever held. The family could not trace him for approximately three years and feared that he had been tortured or killed, which is said to be the usual fate of political detainees in Libya.

2.3      In April 1992, the El-Megreisi family learned that he was still alive, since he was allowed a visit by his wife. According to Mrs. El-Megreisi, the Libyan authorities have told her husband that no charges against him exist and that they have no reason to keep him in detention other than for routine procedures. It is submitted that during his wife's visit, Mohammed El-Megreisi could not comment on the conditions under which he is detained, nor on whether he has been subjected to torture or to other cruel, inhuman or degrading treatment, out of fear of punishment, as meeting places are allegedly bugged and conversations between visitors and prisoners recorded.

2.4      In a submission of September 1992, the author stated that at that time, his brother was detained in a military camp in Tripoli; the name and location of the camp were, however, unknown. The author reiterated that conditions under which prisoners in Libya are detained are cruel and inhuman, without giving further details.

2.5      As to the requirement of exhaustion of domestic remedies, the author has stated, in his initial submission, that the Libyan authorities simply denied that they ever arrested his brother, even though his arrest had been witnessed by the family. In 1990, two London-based non-governmental organizations requested the Libyan authorities to provide clarifications about Mr. El-Megreisi's fate, but received no reply. It appears from the author's submissions that local remedies are deemed to be both unavailable and ineffective.

The complaint

3.        Although the author does not invoke specific provisions of the International Covenant on Civil and Political Rights, it appears from his submissions that he considers his brother to be the victim of a violation by Libya of articles 7, 9 and 10.

The Committee's decision on admissibility

4.1      During its forty-sixth session, in October 1992, the Committee considered the admissibility of the communication. It noted with concern that in spite of two reminders addressed to the State party in January and July 1992, no information or observations on the admissibility of the communication had been received from the State party; nor did the State party provide information, as had been requested by the Committee's Special Rapporteur on New Communications on 2 August 1991, on the whereabouts of Mr. Mohammed El-Megreisi since January 1989 and on his state of health. In the circumstances, the Committee found that it was not precluded from considering the communication under article 5, paragraph 2 (b), of the Optional Protocol.

4.2      On 16 October 1992, the Committee declared the communication admissible in so far as it appeared to raise issues under articles 7, 9 and 10 of the Covenant.

Examination of the merits

5.1      The Committee begins by noting that the Optional Protocol entered into force for the Libyan Arab Jamahiriya on 16 August 1989. It observes that it is not precluded from considering the present communication, since the events complained of by the author have continued after 16 August 1989.

5.2      In spite of a reminder addressed to it in October 1993, the State party did not provide any information in respect of the substance of the author's allegations, nor in respect of Mr. M. El-Megreisi's current whereabouts, state of health and conditions of detention, as requested in paragraph 6 (c) of the Committee's decision on admissibility. The Committee notes with regret and great concern the absence of cooperation on the part of the State party, both in respect of the admissibility and of the substance of the author's allegations. It is implicit in article 4, paragraph 2, of the Optional Protocol and in rule 91 of the Committee's rules of procedure that a State party to the Covenant must investigate in good faith all the allegations of violations of the Covenant made against it and its authorities and furnish the Committee with the information available to it. The lack of cooperation from the State party prevents the Committee from fully discharging its functions under the Optional Protocol.

5.3      The Committee therefore bases its assessment on the undisputed facts that Mr. Mohammed El-Megreisi was arrested in January 1989, that no charges were or have been brought against him and that he has not been released to date. In the opinion of the Committee, therefore, he has been subjected to arbitrary arrest and detention, and continues to be arbitrarily detained, contrary to article 9 of the Covenant.

5.4      Moreover, the Committee notes, from the information before it, that Mohammed El-Megreisi was detained incommunicado for more than three years, until April 1992, when he was allowed a visit by his wife, and that after that date he has again been detained incommunicado and in a secret location. Having regard to these facts, the Committee finds that Mr. Mohammed Bashir El-Megreisi, by being subjected to prolonged incommunicado detention in an unknown location, is the victim of torture and cruel and inhuman treatment, in violation of articles 7 and 10, paragraph 1, of the Covenant.

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

7.        The Committee is of the view that Mr. Mohammed Bashir El-Megreisi is entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective remedy. It urges the State party to take effective measures (a) to secure his immediate release; (b) to compensate Mr. Mohammed El-Megreisi for the torture and cruel and inhuman treatment to which he has been subjected; and (c) to ensure that similar violations do not occur in the future.

8.        The Committee would wish to receive information, within 90 days, on any relevant measures taken by the State party in respect of the Committee's views.

[Adopted in English, French and Spanish, the English text being the original version.]

            U. Communication No. 441/1990, Robert Casanovas v. France

                (views adopted on 19 July 1994, fifty-first session)

Submitted by:                                                                                      Robert Casanovas

Victim:                                                                                                 The author

State party:                                                                                                        France

Date of communication:                                                                      27 December 1990 (initial submission)

Date of decision on admissibility:                                7 July 1993

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

            Meeting on 19 July 1994,

            Having concluded its consideration of communication No. 441/1990 submitted to the Human Rights Committee by Mr. Robert Casanovas 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 its views under article 5, paragraph 4, of the Optional Protocol.

1.         The author of the communication is Robert Casanovas, a French citizen residing in Nancy. He claims to be the victim of a violation by France of articles 2, paragraph 3 (a) and (b), and 14, paragraph 1, of the International Covenant on Civil and Political Rights.

The facts as submitted by the author

2.1       The author is a former employee of the fire brigade sapeurs-pompiers of Nancy. On 1 September 1987, he was appointed head of the Centre de Secours Principal of Nancy. On 20 July 1988, he was dismissed for alleged incompetence, by decision of the regional and departmental authorities. The author appealed to the Administrative Tribunal (Tribunal Administratif) of Nancy, which quashed the decision on 20 December 1988. Mr. Casanovas was reinstated in his post by decision of 25 January 1989.

2.2       The city administration, however, initiated new proceedings against the author which resulted, on 23 March 1989, in a second decision terminating his employment. The author challenged this decision before the Administrative Tribunal of Nancy on 30 March 1989. On 19 October 1989, the President of the Tribunal ordered the closure of the preliminary inquiry. By a letter of 20 November 1989, Mr. Casanovas requested the President of the Tribunal to put his case on the court agenda at as early a date as possible; this request was repeated on 28 December 1989. By a letter dated 11 January 1990, the President informed him that the matter was not considered urgent and that, since no special circumstances prevailed, it would be registered in chronological order, which implied that the case would not be heard either in 1990 or in 1991.

2.3       On 23 January and again on 2 February 1990, the author notified the Court that he considered such a delay to constitute a breach of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and, accordingly, requested the inscription of his case on the court calendar, pursuant to articles 506 and 507 of the French Code of Civil Procedure. Again, he received no reply and therefore asked the Tribunal, on 13 February 1990, to acknowledge receipt of his earlier submissions. On 15 March 1990, the Court informed him that he was not being discriminated against, but that the delays encountered were the result of a backlog in the handling of earlier cases dating back to 1986; in the circumstances, it was impossible to examine the case at an earlier date.

2.4       On 21 March 1990, the author once again requested the President of the Administrative Tribunal to hear the case. The request was reiterated on 5 June 1990, but refused by the President of the Court on 11 June 1990.

2.5       On 20 July 1990, Mr. Casanovas appealed to the European Commission of Human Rights, invoking article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. By decision of 3 October 1990, the Commission declared his communication inadmissible, considering that the Convention does not cover procedures governing the dismissal of civil servants from employment.

2.6       As to the requirement of exhaustion of domestic remedies, the author submits that he cannot appeal to any other French judicial instance, unless and until the Administrative Tribunal of Nancy has adjudicated his case. He therefore submits that he should be deemed to have complied with the requirements of article 5, paragraph 2 (b), of the Optional Protocol.

The complaint

3.1       The author submits that the State party has failed to provide him with an "effective remedy", since the delay in having his case adjudicated would be at least three years. The author claims that this delay is manifestly unreasonable and cannot be justified by the work backlog of the Administrative Tribunal. The author argues that it is incomprehensible that the Administrative Tribunal was able to adjudicate his first case (concerning the 1988 dismissal) within five months, whereas it apparently will take several years to adjudicate his second petition.

3.2       The author further claims that States parties to the Covenant have the duty to provide their tribunals with the necessary means to render justice effectively and expeditiously. According to the author, this is not the case if at least three years pass before a case can be heard at first instance. The author claims that in case of appeal to the Administrative Court of Appeal (Cour administrative d'appel), and subsequently to the Council of State (Conseil d'Etat), a delay of about 10 years could be expected.

3.3       The author further submits that a case which concerns the dismissal of a civil servant is by nature an urgent matter; in this context, he submits that he has not received any salary since 23 March 1989. He claims that a decision reached after three years, even if favourable, would be ineffective. The author moreover argues that, since the Chairman of the Administrative Tribunal has discretionary power to put cases on the roll, he could have granted the author's request, taking into account the particular nature of the case.

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

4.1       The State party argues that the communication is inadmissible, on account of the reservation made by the Government of France upon the deposit of the instrument of ratification of the Optional Protocol to the International Covenant on Civil and Political Rights, with respect to article 5, paragraph 2 (a), that the Human Rights Committee "shall not have the competence to consider a communication from an individual if the same matter is being examined or has already been examined under another procedure of international investigation or settlement".

4.2       The State party submits that this reservation is applicable to the present case because the author of the communication has already submitted a complaint to the European Commission of Human Rights, which declared it inadmissible. The State party argues that the fact that the European Commission has not decided on the merits does not preclude the application of the reservation, as the case concerns the same individual, the same facts and the same claim. In this context, the State party refers to the Committee's decision with regard to communication No. 168/1984, a/ where the Committee held that the phrase "'the same matter' refers, with regard to identical parties, to the complaints advanced and facts adduced in support of them".

4.3       The State party further submits that the communication is inadmissible as incompatible ratione materiae with the Covenant. The State party argues that article 14, paragraph 1, of the Covenant is not applicable, since the procedure before the Administrative Tribunal does not involve "rights and obligations in a suit at law". In this context, the State party refers to the decision of the European Commission of Human Rights, which held that the European Convention for the Protection of Human Rights and Fundamental Freedoms does not cover procedures governing the dismissal from employment of civil servants, and points out that the text on which the European Commission based its decision is identical to the text of article 14, paragraph 1, of the Covenant. Moreover, unlike article 6, paragraph 1, of the European Convention, article 14, paragraph 1, of the Covenant does not contain any provision on the right to a judicial decision within a reasonable time.

4.4       The State party further argues that article 2, paragraph 3, of the Covenant, which guarantees an effective remedy to any person whose rights or freedoms as recognized in the Covenant are violated, has not been breached, since the procedure before the Administrative Tribunal can be considered an effective remedy. According to the State party, this is shown by the decision of the Administrative Tribunal, which quashed the author's dismissal in December 1988.

The Committee's decision on admissibility

5.1       At its forty-eighth session, the Committee considered the admissibility of the communication. It noted the State party's contention that the communication was inadmissible because of the reservation made by the State party to article 5, paragraph 2, of the Optional Protocol. The Committee observed that the European Commission had declared the author's application inadmissible as incompatible ratione materiae with the European Convention. The Committee considered that, since the rights of the European Convention differed in substance and with regard to their implementation procedures from the rights set forth in the Covenant, a matter that had been declared inadmissible ratione materiae had not, in the meaning of the reservation, been "considered" in such a way that the Committee was precluded from examining it.

5.2       The Committee recalled that the concept of "suit at law" under article 14, paragraph 1, was based on the nature of the right in question rather than on the status of one of the parties. The Committee considered that a procedure concerning a dismissal from employment constituted the determination of rights and obligations in a suit at law, within the meaning of article 14, paragraph 1, of the Covenant. Accordingly, on 7 July 1993, the Committee declared the communication admissible.

Information received after the decision on admissibility

6.1       By a letter dated 17 June 1994, the author informs the Committee that the Administrative Tribunal of Nancy, on 20 December 1991, ruled in his favour and that he was reinstated in his post. He adds, however, that the city administration, on 17 December 1992, has again unilaterally terminated his employment and that this decision now is again before the administrative tribunals. He further submits that the continuing conflict with the administration and the long delays before the Tribunal have resulted in feelings of anguish and depression, as a result of which his health has seriously deteriorated.

6.2       No information or observations have been forwarded by the State party, despite a reminder sent on 3 May 1994. The Committee notes with regret the absence of cooperation from the State party, and recalls that it is implicit in article 4, paragraph 2, of the Optional Protocol, that a State party should make available to the Committee all the information at its disposal. In the circumstances, due weight must be given to the author's allegations, to the extent that they have been substantiated.

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

7.2       The Committee notes that the issue before it is whether the duration of the proceedings before the Administrative Tribunal of Nancy concerning the author's second dismissal of 23 March 1989 violated the author's right to a fair hearing within the meaning of article 14, paragraph 1, of the Covenant.