International covenant on civil and political rights - UN

UNITED

                                                                                                                                                                                                

 

                                                                                                                                                      Original: ENGLISH

                                                                                                                                                           18 April 2005

 

 

 

author - Admissibility

  

NATIONS                                                                                                                                                                                             CCPR 

                                                                                                                                                                                                               Distr. 

                                                                                                                                                              RESTRICTED*

 

HUMAN RIGHTS COMMITTEE

Eighty-third session

14 March – 1 April 2005

 

 

 

 

 

 

Subject matter:

 

Procedural issues:

 

ratione materiae

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

1

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

Radio Ecclésia

Viana

Agora

2

3

4

2

3

4

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

7

8

5

6

7

8

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.

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

12

9

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

10

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

11

12

dos Santos

State party’s failure to cooperate

4. On 15 November 2002, 15 December 2003, 26 January 2004 and 23 July 2004, the

State party was requested to submit to the Committee information on the admissibility and

merits of the communication. The Committee notes that this information has still not been

received. The Committee regrets the State party’s failure to provide any information with

regard to the admissibility or the substance of the author’s claims. It recalls that it is implicit

in article 4, paragraph 2, of the Optional Protocol that States parties examine in good faith all

the allegations brought against them, and that they make available to the Committee all

information at their disposal. In the absence of a reply from the State party, due weight must

be given to the author’s allegations, to the extent that they are substantiated.

Issues and proceedings before the Committee

Consideration of admissibility

5.1 Before considering any claim contained in a communication, the Human Rights

Committee must, in accordance with article 93 of its rules of procedure, decide whether or

not it is admissible under the Optional Protocol to the Covenant.

CCPR/C/83/D/1128/2002

Page 10

5.2 The Committee has ascertained that the same matter is not being examined under

another procedure of international investigation or settlement for the purposes of article 5,

paragraph 2 (a), of the Optional Protocol.

5.3 With regard to the author’s allegation that the press and the public were excluded

from his trial, in violation of article 14, paragraph 1, the Committee notes that the author did

not raise this issue before the Supreme Court. It follows that this part of the communication is

inadmissible under articles 2 and 5, paragraph 2 (b), of the Optional Protocol.

5.4 Insofar as the author claims that he was not apprised of the formal charges against

him until 40 days after his arrest, the Committee recalls that article 14, paragraph 3 (a), of the

Covenant does not apply to the period of remand in custody pending the result of police

investigations,

13

14

13

See Communication No. 253/1987, Kelly v. Jamaica

14

See Communication No. 349/1989, Wright v. Jamaica

15

15

See Communications No. 980/2001, Hussain v. Mauritius

Campbell v. Jamaica

Consideration of the merits

6.1 The first issue before the Committee is whether the author’s arrest on 16 October 1999

and his subsequent detention until 25 November 1999 were arbitrary or otherwise in violation

of article 9 of the Covenant. In accordance with the Committee’s constant jurisprudence,

the notion of “arbitrariness” is not to be equated with “against the law”, but must be

interpreted more broadly to include elements of inappropriateness, injustice, lack of

predictability and due process of law. This means that remand in custody must not only be

lawful but reasonable and necessary in all the circumstances, for example to prevent flight,

interference with evidence or the recurrence of crime. No such element has been invoked in

the instant case. Irrespective of the applicable rules of criminal procedure, the Committee

observes that the author was arrested on, albeit undisclosed, charges of defamation which,

although qualifying as a crime under Angolan law, does not justify his arrest at gunpoint by

20 armed policemen, nor the length of his detention of 40 days, including 10 days of

16

See Communication No. 305/1988, Van Alphen v. The Netherlands

Mukong v. Cameroon

A. v. Australia

UNITA

17

18

17

Communication No. 277/1988, Terán Jijón v. Ecuador

18

See Communication No. 560/1993, A. v. Australia

6.8 The Committee refers to its jurisprudence that any restriction on the right to freedom of

expression must cumulatively meet the following conditions set out in paragraph 3 of article

19: it must be provided for by law, it must serve one of the aims enumerated in article 19,

paragraph 3 (a) and (b), and it must be necessary to achieve one of these purposes. The

Committee notes that the author’s final conviction was based on Article 43 of the Press Law,

in conjunction with Section 410 of the Criminal Code. Even if it were assumed that his arrest

and detention, or the restrictions on his travel, had a basis in Angolan law, and that these

measures, as well as his conviction, pursued a legitimate aim, such as protecting the

President’s rights and reputation or public order, it cannot be said that the restrictions were

necessary to achieve one of these aims. The Committee observes that the requirement of

necessity implies an element of proportionality, in the sense that the scope of the restriction

imposed on freedom of expression must be proportional to the value which the restriction

serves to protect. Given the paramount importance, in a democratic society, of the right to

freedom of expression and of a free and uncensored press or other media,

20

19

See Communications Nos. 422/1990, 423/1990 and 424/1990, Aduayom et al. v. Togo ,

20

See Human Rights Committee, General Comment 25 [57], 12 July 1996, at para. 25.

CCPR/C/83/D/1128/2002

Page 15

an obligation to take measures to prevent similar violations in the future.

9. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has

recognized the competence of the Committee to determine whether there has been a violation

of the Covenant or not and that, pursuant to article 2 of the Covenant, that State party has

undertaken to ensure all individuals within its territory or subject to its jurisdiction the rights

recognized in the Covenant and to provide an effective and enforceable remedy in case a

violation has been established, the Committee wishes to receive from the State party, within

90 days, information about the measures taken to give effect to the Committee’s Views. The

State party is also requested to publish the Committee’s Views.

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

Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s

annual report to the General Assembly.]

-----

Views adopted on 12 July 1996, at para. 7.4.

the severity of the

sanctions imposed on the author cannot be considered as a proportionate measure to protect

public order or the honour and the reputation of the President, a public figure who, as such, is

subject to criticism and opposition. In addition, the Committee considers it an aggravating

factor that the author’s proposed truth defence against the libel charge was ruled out by the

courts. In the circumstances, the Committee concludes that there has been a violation of

article 19.

6.9 The last issue before the Committee is whether the author’s prevention from leaving

Angola on 12 December 2000 and the subsequent confiscation of his passport were in

violation of article 12 of the Covenant. It notes the author’s contention that his passport was

confiscated without justification or legal basis, as his bail restrictions no longer applied, and

that he was denied access to information about his entitlement to travel. In the absence of any

justification advanced by the State party, the Committee finds that the author’s rights under

article 12, paragraph 1, have been violated.

7. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional

Protocol to the International Covenant on Civil and Political Rights, is of the view that the

facts before it reveal violations of article 9, paragraphs 1, 2, 3 and 4, and of articles 12 and 19

of the Covenant.

8. In accordance with article 2, paragraph 3, of the Covenant, the author is entitled to an

effective remedy, including compensation for his arbitrary arrest and detention, as well as for

the violations of his rights under articles 12 and 19 of the Covenant. The State party is under

19

, Views adopted on 3 April 1997, at para.

9.5.

CCPR/C/83/D/1128/2002

Page 14

article 38 of the Angolan Constitution. Against this background, the Committee deems it

appropriate to deal with the issue of compensation in the remedial paragraph.

6.7 The next issue before the Committee is whether the author’s arrest, detention and

conviction, or his travel constraints, unlawfully restricted his right to freedom of expression,

in violation of article 19 of the Covenant. The Committee reiterates that the right to freedom

of expression in article 19, paragraph 2, includes the right of individuals to criticize or openly

and publicly evaluate their Governments without fear of interference or punishment.

, Views adopted on 26 March 1992,

at para. 5.3.

It recalls that

the circumstances of the author’s arrest and detention gave rise to violations of article 9,

paragraphs 1 to 4, of the Covenant, and notes the author’s uncontested argument that the

State party’s failure to bring him before a judge during his 40-day detention also violated

It takes note of the author’s argument that his 10-

day incommunicado detention, without access to a lawyer, adversely affected his right to be

brought before a judge, and concludes that the facts before it disclose a violation of article 9,

paragraph 3. In view of this finding, the Committee need not pronounce itself on the alleged

violation of article 14, paragraph 3(b).

6.4 As to the author’s claim that, rather than being detained in custody for 40 days, he

should have been released pending trial, in the absence of a risk of flight, the Committee

notes that the author was not charged until 25 November 1999, when he was also released

from custody. He was therefore not “awaiting” trial within the meaning of article 9,

paragraph 3, before that date. Moreover, he was not brought before a judicial authority before

that date, which could have determined whether there was a lawful reason to extend his

detention. The Committee therefore considers that the illegality of the author’s 40-day

detention, without access to a judge, is subsumed by the violations of article 9, paragraphs 1

and 3, first sentence, and that no issue of prolonged pre-trial detention arises under article 9,

paragraph 3, second sentence.

6.5 As regards the alleged violation of article 9, paragraph 4, the Committee recalls that the

author had no access to counsel during his incommunicado detention, which prevented him

from challenging the lawfulness of his detention during that period. Even though his lawyer

subsequently, on 29 October 1999, applied for habeas corpus to the Supreme Court, this

application was never adjudicated. In the absence of any information from the State party, the

Committee finds that the author’s right to judicial review of the lawfulness of his detention

(article 9, paragraph 4) has been violated.

6.6 With respect to the author’s claim under article 9, paragraph 5, the Committee recalls

that this provision governs the granting of compensation for arrest or detention that is

“unlawful” either under domestic law or within the meaning of the Covenant.

prisoner, did not meet the requirements of article

9, paragraph 2. In the circumstances, the Committee concludes that there has been a violation

of article 9, paragraph 2.

6.3 As regards the author’s claim that he was not brought before a judge during the 40 days

of detention, the Committee recalls that the right to be brought “promptly” before a judicial

authority implies that delays must not exceed a few days, and that incommunicado detention

as such may violate article 9, paragraph 3.

, Views adopted

on 3 April 1997, at para. 9.2.

CCPR/C/83/D/1128/2002

Page 13

incommunicado detention. The Committee concludes that in the circumstances, the author’s

arrest and detention were neither reasonable nor necessary but, at least in part, of a punitive

character and thus arbitrary, in violation of article 9, paragraph 1.

6.2 The Committee notes the author’s uncontested claim that he was not informed of the

reasons for his arrest and that he was charged only on 25 November 1999, 40 days after his

arrest on 16 October 1999. It considers that the chief investigator’s statement, on 16 October

1999, that the author was held as a

, Views adopted

on 21 July 1994, at para. 9.8; Communication No. 560/1993,

, Views adopted on 23

July 1990, at para. 5.8; Communication No. 458/1991,

16

, Views

adopted on 20 October 1998, at para. 7.3.

CCPR/C/83/D/1128/2002

Page 12

Protocol.

5.10 As regards the author’s claim that his right under article 14, paragraph 5, was violated

because of the lack of clarity about the legal basis for his conviction by the Provincial Court,

and because the Supreme Court’s impartiality was undermined by its public notice of 7 April

2000, the Committee observes that the crime of which the author was convicted (abuse of the

press by defamation) is described with sufficient clarity in the Provincial Court’s judgment.

The Committee therefore concludes that the author has not sufficiently substantiated his

claim, for purposes of admissibility, and that this part of the communication is inadmissible

under article 2 of the Optional Protocol.

5.11 As to the remainder of the communication, the Committee considers that the author has

sufficiently substantiated his claims for purposes of admissibility.

5.12 On the issue of exhaustion of domestic remedies, the Committee notes that the author

raised the substance of his claims under article 9 in his application for habeas corpus, which,

according to him, was never adjudicated by the Angolan courts. As regards the author’s claim

under article 19 of the Covenant, the Committee notes that he invoked “the right of political

and social criticism and of the freedom of the press” on appeal. It furthermore notes the

author’s claim (in relation to article 12 of the Covenant) that he “took repeated legal

measures to recover his passport and [to] clarify, legally, his entitlement to travel but was

hampered by complete lack of access to information regarding his travel documents,” and

observes that, in the circumstances, no domestic remedies were available to the author.

5.13 In the absence of any information from the State party to the contrary, the Committee

concludes that the author has met the requirements of article 5, paragraph 2 (b), of the

Optional Protocol, and that the communication is admissible, insofar as it appears to raise

issues under articles 9, paragraphs 1 to 5, 12, 14, paragraph 3(b) (inasmuch as author’s

inability to have access to counsel during his incommunicado detention is concerned), and 19

of the Covenant.

, decision on admissibility

adopted on 18 March 2002, at para. 6.3, and No. 618/1995,

It considers that the author has not

substantiated, for purposes of admissibility, that failure to adjourn the trial was manifestly

incompatible with the interests of justice. Accordingly, this part of the communication is

inadmissible under article 2 of the Optional Protocol.

5.7 As to the author’s claim that his right to defend himself through legal assistance of his

own choosing (article 14, paragraph 3 (d)) was breached, the Committee notes that the

Supreme Court, while annulling the temporary suspension of the author’s lawyer, did not

pronounce itself on the legality of the lawyer’s removal from the trial. On the contrary, it held

that the abandonment of a client by a lawyer, outside situations specifically allowed by law,

was subject to disciplinary sanctions under applicable regulations. In its public notice, the

Supreme Court, instead of defending the judge’s decision to debar the author’s lawyer,

expressed its concern about the effects of the Bar Associations criticism (causing “an unjustly

suspicious climate […] discrediting [the judiciary] both domestically and abroad”), while

emphasizing that the trial judge’s decision “may be cured by a higher court in the legal

process.” The Supreme Court subsequently declared the author’s lawyer’s six-month

suspension null and void. Similarly, it does not transpire from the trial transcript that counsel

was appointed against the author’s will or that he limited his interventions during the

remainder of the trial to redundant pleadings. According to the transcript, the author, when

asked whether he intended to designate a new legal representative, declared that he would

leave such decision to the Court. The Committee concludes that the author has not

substantiated, for purposes of admissibility, that the removal of his lawyer from the trial was

unlawful or arbitrary, that counsel was appointed against the author’s will, or that he was

unqualified to provide effective legal representation. Accordingly, this part of the

communication is inadmissible under article 2 of the Optional Protocol.

5.8 With respect to the alleged violation of article 14, paragraph 3 (e), by the trial judge’s

decision to admit only one defence witness, who was expelled from the court after criticizing

Article 46 of the Press Law as unconstitutional, the Committee notes that it does not transpire

from the Supreme Court’s judgment of 26 October 2000, or from any other document at its

disposal, that the author raised this claim on appeal. Consequently, this part of the

communication is inadmissible under article 5, paragraph 2 (b), of the Optional Protocol for

failure to exhaust domestic remedies.

5.9 While noting that the author based his appeal, inter alia, on the fact that the trial judge

had rejected the documentary evidence presented by him in defence of the truth of his

statements, the Committee notes that it is in principle beyond its competence to determine

whether national courts properly evaluate the admissibility of evidence, unless it is apparent

that their decision is manifestly arbitrary or amounts to a denial of justice. In the instant case,

the Committee notes that the Provincial Court and, in particular, the Supreme Court

examined whether the Press Law lawfully precludes the defence of the truth in relation to

statements concerning the Angolan President, and it finds no evidence that their findings

suffered from the above defects. It therefore considers that the author has not substantiated

this part of his claim under article 14, paragraph 3 (e), for purposes of admissibility, and

concludes that this part of the communication is inadmissible under article 2 of the Optional

, Views adopted on 27 July 1992, at

para. 8.4.

CCPR/C/83/D/1128/2002

Page 11

was incompatible with the interests of justice.

, Views adopted on 8 April 1991, para.

5.8.

In this respect, the Committee refers to its

jurisprudence that a State party cannot be held responsible for the conduct of a defence

lawyer, unless it was, or should have been, manifest to the judge that the lawyer's behaviour

but requires that an individual be informed promptly and in detail of the

charge against him, as soon as the charge is first made by a competent authority. Although

the author was formally charged on 25 November 1999, that is, one week after the indictment

had been “approved” by the prosecution, he did not raise this delay on appeal. The

Committee therefore concludes that this part of the communication is inadmissible under

article 5, paragraph 2 (b), of the Optional Protocol.

5.5 As to the claim that the conviction of more serious crimes than the ones charged by

the prosecution violated the author’s right under article 14, paragraph 3 (b), the Committee

has noted the argument, in the Supreme Court’s judgement of 26 October 2000, that a judge

may convict a defendant of a more serious offence than the one that he was accused of, as

long as the conviction is based on the facts described in the indictment. It recalls that it is

generally for the national courts, an