International covenant on civil and political rights - UN

UNITED

NATIONS                                                                                                                                                                                             CCPR 

                                                                                                                                                                                                               Distr. 

                                                                                                                                                              RESTRICTED*

                                                                                                                                                      CCPR/C/83/D/1128/2002

                                                                                                                                                                                                

                                                                                                                                                           18 April 2005

                                                                                                                                                      Original: ENGLISH

HUMAN RIGHTS COMMITTEE

Eighty-third session

14 March – 1 April 2005

Communication No. 1128/2002

Subject matter:

 

Procedural issues:

 

ratione materiae

- Exhaustion of domestic remedies

Substantive issues:

 

Articles of the Covenant:

 

Articles of the Optional Protocol:

 

ANNEX

Views of the Human Rights Committee under article 5, paragraph 4, of

the Optional Protocol to the International Covenant on Civil and Political rights

Eighty-third session

concerning

Communication No. 1128/2002**

Submitted by: Rafael Marques de Morais (represented by the

Open Society Institute and Interights)

Alleged victim: The author

State party: Angola

Date of communication: 5 September 2002 (initial submission)

The Human Rights Committee, established under article 28 of the International

Covenant on Civil and Political Rights,

Meeting on 29 March 2005,

Having concluded its consideration of communication No. 1128/2002, submitted to

the Human Rights Committee on behalf of Rafael Marques de Morais under the Optional

Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of

the communication, and the State party,

Adopts the following:

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

1. The author of the communication is Rafael Marques de Morais, an Angolan citizen,

born on 31 August 1971. He claims to be a victim of violations by Angola

1

of articles 9, 12,

14 and 19 of the International Covenant on Civil and Political Rights (the Covenant). The

author is represented by counsel.

** The following members of the Committee participated in the examination of the present

communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal

Bhagwati, Ms. Christine Chanet, Mr. Maurice Glèlè Ahanhanzo, Mr. Edwin Johnson,

Mr. Walter Kälin, Mr. Ahmed Tawfik Khalil, Mr. Michael O’Flaherty, Ms. Elisabeth Palm,

Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Ivan Shearer, Mr. Hipólito Solari-Yrigoyen,

Ms. Ruth Wedgwood and Mr. Roman Wieruszewski.

1

The Covenant and the Optional Protocol to the Covenant entered into force for the State

party on 10 April 1992.

CCPR/C/83/D/1128/2002

Page 4

Factual background

2.1 On 3 July, 28 August and 13 October 1999, the author, a journalist and the

representative of the Open Society Institute in Angola, wrote several articles critical of

Angolan President

dos Santos in an independent Angolan newspaper, the Agora

. In these

articles, he stated, inter alia, that the President was responsible “for the destruction of the

country and the calamitous situation of State institutions” and was “accountable for the

promotion of incompetence, embezzlement and corruption as political and social values.”

2.2 On 13 October 1999, the author was summoned before an investigator at the National

Criminal Investigation Division (DNIC) and questioned for approximately three hours before

being released. In an interview later that day with the Catholic radio station,

Radio Ecclésia

,

the author reiterated his criticism of the President and described his treatment by the DNIC.

2.3 On 16 October 1999, the author was arrested at gunpoint by 20 armed members of the

Rapid Intervention Police and DNIC officers at his home in Luanda, without being informed

about the reasons for his arrest. He was brought to the Operational Police Unit, where he was

held for seven hours and questioned before being handed over to DNIC investigators, who

questioned him for five hours. He was then formally arrested, though not charged, by the

deputy public prosecutor of DNIC.

2.4 From 16 to 26 October 1999, the author was held incommunicado at the high security

Central Forensic Laboratory (CFL) in Luanda, where he was denied access to his lawyer and

family and was intimidated by prison officials, who asked him to sign documents disclaiming

responsibility of the CFL or the Angolan Government for eventual death or any injuries

sustained by him during detention, which he refused to do. He was not informed of the

reasons for his arrest. On arrival at the CFL, the chief investigator merely stated that he was

being held as a UNITA (National Union for the Total Independence of Angola) prisoner.

2.5 On or about 29 October 1999, the author was transferred to

Viana

prison in Luanda and

granted access to his lawyer. On the same day, his lawyer filed an application for habeas

corpus with the Supreme Court, challenging the lawfulness of the author’s arrest and

detention, which was neither acknowledged, nor assigned to a judge or heard by the Angolan

courts.

2.6 On 25 November 1999, the author was released from prison on bail and informed of the

charges against him for the first time. Together with the director, A. S., and the chief editor,

A. J. F., of

Agora

, he was charged with “materially and continuously committ[ing] the crimes

characteristic of defamation and slander against His Excellency the President of the Republic

and the Attorney General of the Republic…by arts. 44, 46 all of Law no 22/91 of June 15 (the

Press Law) with aggravating circumstances 1, 2, 10, 20, 21 and 25, all of articles 34 of the

Penal Code.” The terms of bail obliged the author “not to leave the country” and “not to

engage in certain activities that are punishable by the offence committed and that create the

risk that new violations may be perpetrated – Art 270 of the Penal Code”. Several requests by

the author for clarification of these terms were unsuccessful.

2.7 The author’s trial began on 21 March 2000. After thirty minutes, the judge ordered the

proceedings to continue in camera, since a journalist had tried to photograph the proceedings.

CCPR/C/83/D/1128/2002

Page 5

2.8 By reference to article 46

2

of Press Law No. 22/91 of June 15 1991, the Provincial

Court ruled that evidence presented by the author to support his defence of the ‘truth’ of the

allegations and the good faith basis upon which they were made, including the texts of

speeches of the President, Government resolutions and statements of foreign State officials,

was inadmissible. In protest, the author’s lawyer left the courtroom, stating that he could not

represent his client in such circumstances. When he returned to the courtroom on 25 March,

the trial judge prevented him from resuming his representation of the author and ordered that

he be disbarred from practising as a lawyer in Angola for a period of six months. The Court

then appointed as ex officio defence counsel an official of the General Attorney’s Office

working at the Provincial Court’s labour tribunal, who allegedly was not qualified to practise

as a lawyer.

2.9 On 28 March 2000, a witness testifying on behalf of the author was ordered to leave the

court and to stop his testimony after asserting that the law under which the author had been

charged had was unconstitutional. The Court also refused to allow the author to call two

other defence witnesses, without giving reasons.

2.10 On 31 March 2000, the Provincial Court convicted the author of abuse of the press

3

by

defamation,

4

finding that his newspaper article of 3 July 1999, as well as the radio interview,

contained “offensive words and expressions” against the Angolan President and, albeit not

raised by the accusation and therefore not punishable, against the Attorney-General in their

official and personal capacities. The Court found that the author had “acted with intention to

injure” and based the conviction on the combined effect of articles 43, 44, 45 and 46 of Press

Law No. 22/91, aggravated by item 1 of article 34 of the Penal Code (premeditation). It

sentenced the author to six months’ imprisonment and a fine of 1,000,000.00 Kwanzas (Nkz.)

to “discourage” similar behaviour, at the same time ordering the payment of NKz. 100,000.00

compensatory damages to “the offended” and of a court tax of NKz. 20,000.00.

2.11 On 4 April 2000, the author appealed to the Supreme Court of Angola. On 7 April

2000, the Supreme Court issued a public notice criticizing the Bar Association for having

qualified the trial judge’s suspension of the author’s lawyer as null and void for lack of

2

Article 46 of the Press Law reads: “If the person defamed is the President of the Republic of

Angola, or the head of a foreign State, or its representative in Angola, then proof of the

veracity of the facts shall not be admitted.”

3

The crime of abuse of the press is defined as follows in article 43 of the Press Law: “(1) For

purposes of this law, an abuse of the press shall be deemed to be any act or behavio[u]r that

injures the juridical values and interests protected by the criminal code, effected by

publication of texts or images through the press, radio broadcasts or television. (2) The

criminal code is applicable to the aforementioned crimes as follows: (a) The court shall apply

the punishment set forth in the incriminating legislation, which punishment may be

aggravated pursuant to general provisions. (b) If the agent of the crime has not previously

been found guilty of any abuse of the press, then the punishment of imprisonment may be

replaced by a fine of not less than NKz. 20,000.00.”

4

Article 407 of the Criminal Code describes the crime of defamation as follows: “If one

person defames another publicly, de viva voce, in writing, in a published drawing, or in any

public manner, imputing to him something offensive to his hono[u]r and dignity, or

reproduces this, then he shall be condemned to a prison term of up to four months and a fine

of up to one month.”

CCPR/C/83/D/1128/2002

Page 6

jurisdiction, in a decision of its National Council adopted on 27 March 2000.

5

2.12 On 26 October 2000, the Supreme Court quashed the trial court’s judgment on the

defamation count, but upheld the conviction for abuse of the press on the basis of injury

6

to

the President, punishable by item No. 3 of article 45

7

, of Press Law No. 22/91. The Court

considered that the author’s acts were not covered by his constitutional right to freedom of

speech, since the exercise of that right was limited by other constitutionally recognized rights,

such as one’s honour and reputation, or by “the respect that is due to the organs of

sovereignty and to the symbols of the state, in this case the President of the Republic.” It

affirmed the prison term of six-month, but suspended its application for a period of five

years, and ordered the author to pay a court tax of NKz. 20,000.00 and NKz. 30,000.00

damages to the victim. The judgment did not refer to the pre-existing bail conditions

imposed on the author.

2.13 On 11 November 2000, the author unsuccessfully sought to obtain a declaration

confirming that his bail restrictions were no longer applicable.

2.14 On 12 December 2000, the author was prevented from leaving Angola for South Africa

to participate in an Open Society Institute conference; his passport was confiscated. Despite

repeated requests, his passport was not returned to him until 8 February 2001, following a

court order of 2 February 2001 based on Amnesty Law 7/00 of 15 December 2000,

8

which

was declared applicable to the author’s case. Regardless of this amnesty, on 19 January 2002,

the author was summoned to the Provincial Court and ordered to pay compensation of Nkz.

30,000 to the President, which he refused to pay, and legal costs, for which he paid.

5

The translation of the Supreme Court’s public notice reads, in pertinent parts: “It does not

make sense, therefore, for a single courtroom incident, resulting from a decision handed

down by the Judge in question in open court, a decision which may be cured by a higher

court in the legal process, and which is subject to an inter-institutional decision, to have

caused such an inflammatory and unnecessary public notice from the Bar Association,

creating an unjustly suspicious climate and discrediting [the judiciary] both domestically and

abroad, and causing distorted proclamations by individuals, institutions, and even

governmental officials.”

6

The crime of injury is defined in article 410 of the Criminal Code: “The crime of injury,

without imputation of any determined fact, if committed against any person publicly, by

gestures, de viva voce, by published drawing or text, or by any other means of publication,

shall be punished with a prison term of up to two months and a fine […].

In an accusation for injury, no proof whatsoever of the veracity of the facts to which the

injury may refer shall be admissible.”

7

Article 45 No. 3 reads: “Providing the veracity of the facts of the offense, once admitted by

the author, shall render it exempt from punishment. Otherwise, the violator would be

punished as a slanderer and sentenced to a prison term of up to 2 years and the corresponding

finde, in addition to damages to be determined by a court, but in no case less than NKz.

50,000.00.”

8

Amnesty Law 7/00 applies to “crimes against security which were committed […] within

the sphere of the Angolan conflict, as long as its agents have presented themselves or may

come to present themselves to the Angolan authorities […].”

CCPR/C/83/D/1128/2002

Page 7

The complaint

3.1 The author claims that his arrest and detention were not based on sufficiently defined

provisions, in violation of article 9, paragraph 1, of the Covenant. In particular, article 43 of

the Press Law on ‘abuse of the press’ and article 410 of the Criminal Code on ‘injury’ lacked

specificity and were overly broad, making it impossible to ascertain what sort of political

speech remained permissible. Moreover, the authorities relied upon different legal bases for

the author’s arrest and throughout the course of his subsequent indictment, trial and appeal.

Even assuming that his arrest was lawful, his continued detention for a period of 40 days was

neither reasonable nor necessary in the circumstances of his case.

9

3.2 The author claims a violation of article 9, paragraph 2, as he was arrested without being

informed of the reasons for his arrest or the charges against him. His 10-day incommunicado

detention,

10 without access to his lawyer or family, the denial of his constitutional11

right to

be brought before a judge during the entire 40 days of his detention, and the authorities’

failure to release him promptly pending trial, despite the absence of a risk of flight (as

reflected by his cooperative attitude, e.g. when he reported to the DNIC on 13 October 1999),

violated his rights under article 9, paragraph 3. The fact that he was prevented from

challenging the lawfulness of his detention while detained incommunicado also violated

article 9, paragraph 4, as did the Angolan courts’ failure to address his habeas corpus

application. Under article 9, paragraph 5, the author claims compensation for his unlawful

arrest and detention.

3.3 The author contends that the exclusion of the press and the public from his trial was not

justified by any of the exceptional circumstances enumerated in article 14, paragraph 1, since

the disruptive photographer could have been deprived of his camera or excluded from the

courtroom

12

.

3.4 The fact that the author did not receive the formal charges against him until 40 days

after his arrest is said to violate his right under article 14, paragraph 3 (a), to be informed

promptly of the nature and cause of the charge against him. He argues that this delay was not

justified by the complexity of the case. Moreover, his conviction of more serious crimes

(articles 43 and 45 of the Press Law) than the ones for which he was originally charged

(articles 44 and 46 of the Press Law) breached his right to adequate facilities for the

preparation of his defence (article 14, paragraph 3 (b), of the Covenant). His conviction on

these additional charges should have been quashed by the Supreme Court, which instead held

that a Provincial Court “may sentence a defendant for an infraction different from the one

that he was accused of, even if it is more serious, provided that the grounds are facts included

in the indictment or similar ruling.”

9

The author refers to Communication No. 305/1988, van Alphen v. The Netherlands

, Views

adopted on 23 July 1990, at para. 5.8.

10

By reference to Communication No. 277/1988, Terán Jijón v. Ecuador

, Views adopted on

26 March 1992, at para. 3, the author submits that incommunicado detention as such gives

rise to a violation of article 9, paragraph 3, of the Covenant, since it negatively impacts on the

exercise of the right to be brought before a judge.

11

Article 38 of the Constitution of Angola provides: “Any citizen subjected to preventive

detention shall be taken before a competent judge to legalise the detention and be tried within

the period provided for by law or released.”

12

It appears that this issue was not however raised in the Supreme Court.

CCPR/C/83/D/1128/2002

Page 8

3.5 The author claims that his right under article 14, paragraph 3 (b), to communicate with

counsel was violated, as he could not consult his lawyer during incommunicado detention, at

a critical state of the proceedings, and because the trial judge did not adjourn the trial upon

disbarring the author’s lawyer and appointing an ex officio defence counsel on 23 March

2000, thereby denying him adequate time to communicate with his new counsel. His right to

defend himself through legal assistance of his own choosing (article 14, paragraph 3(d)) was

breached because his lawyer was unlawfully removed from the case, as confirmed by the

Supreme Court’s judgment of 26 October 2000. He claims that, despite his willingness to pay

for a counsel of his own choosing, a new counsel was appointed ex officio, who was neither

qualified nor competent to provide adequate defence, limiting his interventions during the

remainder of the trial to requesting the Court to “do justice” and to an expression of

satisfaction with the proceedings.

3.6 For the author, the judge’s decision to hear only one defence witness, a human rights

activist who was expelled from court after claiming that article 46 of the Press Law was

unconstitutional, and to reject documentary evidence of the truth of the author’s statements,

and the good faith basis on which they had been made, on the ground that article 46 of the

Press Law precluded the presentation of evidence against the President, violated his rights

under article 14, paragraph 3 (e), and denied him an opportunity to produce evidence on

whether or not all the elements of the offence had been met, in particular whether he had

acted with the intention of offending the President.

3.7 The author claims a violation of article 14, paragraph 5, because of the Supreme

Court’s lack of impartiality when it publicly criticized the Bar Association while his appeal

was still pending, as well as by the lack of clarity as to the exact legal basis of his conviction,

which prevented him from lodging a “meaningful” appeal.

3.8 The author contends that his critical statements about President

dos Santos

were

covered by his right to freedom of express

×