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45/1979 (31
March 1982), U.N. Doc. CCPR/C/OP/1 at 112 (1985).
FACTS:
In the present case it is evident from the fact that seven persons lost their
lives as a result of the deliberate action of the police that the deprivation of
life was intentional. Moreover, the police action was apparently taken without
warning to the victims and without giving them any opportunity to surrender
to the police patrol or to offer any explanation of their presence or intentions.
There is no evidence that the action of the police was necessary in their own
defence or that of others, or that it was necessary to effect the arrest or
prevent the escape of the persons concerned. Moreover, the victims were
no more than suspects of the kidnapping which had occurred some days
earlier and their killing by the police deprived them of all the protections of
due process of law laid down by the Covenant. In the case of Mrs. Maria
Fanny Suarez de Guerrero, the forensic report showed that she had been
shot several times after she had already died from a heart attack. There can
be no reasonable doubt that her death was caused by the police patrol.
13.3 For these reasons it is the Committee's view that the action of the police
resulting in the death of Mrs. Maria Fanny Suarez de Guerrero was
disproportionate to the requirements of law enforcement in the
circumstances of the case and that she was arbitrarily deprived of her life
contrary to article 6 (1) of the International Covenant on Civil and Political
Rights. Inasmuch as the police action was made justifiable as a matter of
Colombian law by Legislative Decree No. 0070 of 20 January 1978, the right
to life was not adequately protected by the law of Colombia as required by
article 6 (1).
The Committee is accordingly of the view that the State party should take
the necessary measures to compensate the husband of Mrs. Maria Fanny
Suarez de Guerrero for the death of his wife and to ensure that the right to
life is duly protected by amending the law.
Baboeram et al. v. Suriname
Communication No. 146/1983 and 148-154/1983 a/
4 April 1985
a number of persons in Paramaribo,
Suriname, were taken from their beds and arrested, including John Baboeram, whose corpse
along with the corpses of 14 other persons was identified as "heavily and brutally maltreated in
the face. He for
instance had a broken upper jaw. Almost all his teeth, except for one, on the upper right hand
side, were beaten inwards and his lips were pulped. He had a horizontal gash on his
forehead. In addition he had a bullet wound on the left side of his nose, which was later
covered by a plaster. Further he had wounds, cuts on the cheeks and internal haemorrhages."
2.2 With respect to the exhaustion of domestic remedies, the author states that no recourse
has been made to any court in Suriname because "it became obvious from different sources
that the highest military authority ... was involved in the killing", because the official judicial
investigation required in such a case of violent death had not taken place, and "because of
the atmosphere of fear one would find no lawyer prepared to [plead] such a case, considering
the fact that three lawyers have been killed, apparently because of their concern with human
The author claims that her husband was a victim of violations of articles 6, 7, 9, 10, 14
4. In a submission dated 5 October 1983, the State party objected against the admissibility
of communication No. 146/1983 on the ground that the same matter had already been
submitted to and was "being examined under another procedure of international investigation
or settlement," referring in this connection to "investigations regarding the human rights
situation in Suriname by international organizations dealing with human rights such as the
Inter-American Commission on Human Rights and the International Committee of the Red
Cross".
* the alleged
victims were arrested at their respective homes in the early morning hours of 8 December
1982; in the evening of the same day it was declared by Surinamese authorities that a coup
attempt had been foiled and in the evening of 9 December 1982 it was declared that a
number of arrested persons had been killed during an attempt to escape; the bodies of the 15
persons lay from 10 to 13 December 1982 in the mortuary of the Academic Hospital and
were seen by family members and other persons; the bodies showed numerous wounds,
apparently inflicted from the front side. Neither autopsies nor official investigations of the
RULING:
it necessary to consider assertions that other provisions of the Covenant were violated.
Mbenge v. Zaire
Communication No. 16/1977
25 March 1983
FACTS:
13. Daniel Monguya Mbenge, a Zairian citizen and former Governor of the province of
Shaba, who had left Zaire in 1974 and is at present living in Brussels, was twice sentenced
to capital punishment by Zairian tribunals. The first death sentence was pronounced against
him by judgement of 17 August 1977, in particular for his alleged involvement in the
invasion of the province of Shaba by the so-called Katangan gendarmes in March 1977. The
second judgement is dated 16 March 1978. It pronounces the death sentence for "treason' and
'conspiracy" without providing facts to establish these charges. Daniel Monguya Mbenge,
learned about the trials through the press. He had not been duly summoned at his residence
in Belgium to appear before the tribunals. An amnesty decree of 28 June 1978 (Act 78-023
of 29 December 1978) covering offences "against the external or -internal security of the
State or any other offence against the laws and regulations of the Republic of Zaire',
committed by Zairians having sought refuge abroad, was restricted to persons returning to
17. Daniel Monguya Mbenge also alleges a breach of article 6 of the Covenant. Paragraph
2 of that article provides that sentence of death may be imposed only "in accordance with
the law [of the State party] in force at the time of the commission of the crime and not
ISSUE:
RULING:
That, in addition to himself, the author was justified by reason of close family connection
the failure of the State party to respect the relevant requirements of article 14
(3) leads to the conclusion that the death sentences pronounced against the author of the
communication were imposed contrary to the provisions of the Covenant, and therefore in
violation of article 6 (2).
The Human Rights Committee, acting under article 5 (4) of the Optional Protocol to the
International Covenant on Civil and Political Rights, is of the view that the facts set out, in so far
as they have occurred on or after 1 February 1977, disclose violations of the International
Covenant on Civil and Political Rights, in particular:
(a) With respect to Daniel Monguya Mbenge:
of article 6 (2), because Daniel Monguya Mbenge was twice sentenced to death in
circumstances contrary to the provisions of the Covenants
of article 14 (3) (a), (b), (d) and (e), because he was charged, tried and convicted in
circumstances in which he could not effectively enjoy the safeguards of due process,
enshrined in these provisions;
(b) With respect to Abraham Oyabi:
of article 9, because he was subjected to arbitrary arrest and detention.
22. The Committee, accordingly, is of the view that the State party is under an obligation to
provide the victims with effective remedies, including compensation for the violations they
have suffered, and to take steps to ensure that similar violations do not occur in the future.
Lloydell Richards v. Jamaica, Communication No. 535/1993, U.N. Doc.
CCPR/C/59/D/535/1993 (31 March 1997).
FACTS:
The case for the prosecution was that, on 8 March 1982 at about 8 p.m.,
the author, who worked as a driver of a minibus, picked up S.L., who was
living in Montego Bay. She was stranded in Savanna-la-mar, and although
Montego Bay was not on the scheduled route, the author said that he
would bring her home, as he had completed the last trip of the day. He first
dropped the conductor of the bus at his home. At 9 p.m., the author
stopped and had drinks in a bar. The bar owner saw S.L. coming out of the
bus and trying to obtain a lift from cars going in the direction of Montego
Bay. When she did not succeed, she re-entered the bus and left with the
author. At 1 a.m., a witness who knew the author saw him coming out of a
guest house, and pulling S.L. who was crying, into the minibus. Several
hours later, the author, covered in mud and blood, appeared at the bus
conductor's house. He said that the bus had been hijacked by three armed
men and that they had ordered him to drive into the countryside. When the
bus became stuck in the mud, he managed to escape; he further said that
he feared for S.L.'s life. The author and a few other people, followed by the
police, soon found the minibus and the body of S.L. was discovered in a
shallow grave nearby. She had died as a result of a head injury; a blood-
stained tool was found in the bus. The deceased's body also showed signs
of rape.
The author claims that his trial was unfair. He encloses two articles which
appeared in a well-known Jamaican newspaper, and submits that the
information given was prejudicial to his case. One of the articles, published
on 1 October 1983, informed Athat the author had pleaded guilty to
manslaughter in the case of the death of S.L., a 17-year-old school girl". It
further stated Athat some members of the judiciary felt that manslaughter
did not arise in a case of that nature", and summarized the prosecution's
case. The author points out that this article was published two days before
he appeared in court to be sentenced on the basis of his manslaughter
plea, and before the prosecution entered the nolle prosequi. The second
article, published on 4 October 1983, reported the proceedings of the
previous day, and, according to the author, in a way prejudicial to his
defence. The author that he had already pleaded guilty to manslaughter,
deprived him of the right to a fair trial before an independent and impartial
tribunal, contrary to article 14, paragraph 1, of the Covenant.
3.2 The author further claims that the publicity given to the proceedings
violated his right to be presumed innocent until proven guilty according to
law.
ISSUE:
article 6, paragraph 2, is said to have been violated, since 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 available, a violation of this provision.
RULING:
The Committee found that the entering of nolle prosequi by the prosecution
after the author had pleaded guilty to manslaughter and the publicity
connected thereto may have affected the presumption of innocence in the
author's case.
FACTS:
Mr. Conteris was arrested by the security police, allegedly without a warrant,
at Carrasco Airport, Montevideo, upon returning from a Christian Peace
Conference held in Brno, Czechoslovakia. He was taken to the intelligence
service headquarters in the city. Two weeks later when his family went to
these offices to bring him food, they were given his belongings and told that
he had been transferred to "an army establishment". This was the last they
heard of him for three months. On 4 March 1977, his daughter was allowed
to see him for 15 minutes under strict supervision. He was in a deplorable
physical condition and had lost 20 kilos in weight. His arms were scarred.
The family later learned that he had been moved between several military
establishments, including the most notorious centre known as "El Infierno" -
the 13th Armoured Infantry Battalion.
The author also alleged that, since his arrest in 1976, Mr. Conteris was never
brought before a judge or granted a public hearing at which he could defend
himself. No judgement against him has ever been made public. It is also
alleged that Mr. Conteris had been detained for over two years before be
was informed of the charges against him. The date of Mr. Conteris' first trial
is unclear. He was convicted and sentenced in absentia by a military court
of the first instance, for "subverting the Constitution", "criminal and political
association", 'unlawful entry" and "kidnapping". Although a civilian, he was
tried by a military court under the Law of National Security enacted in 1972
because he was charged with subversive activities.
Mr. Conteris was assigned "legal counsel" (abogado de oficio), designated
by the military as Dr. Alcimar Perera. a/ Mr. Conteris never saw Dr. Perera
before the trial. It was only after the proceedings that Mr. Conteris had a brief
meeting with him. Mr. Conteris never heard from him again. Mr. Conteris
submitted his own statement to the military court of first instance but this
statement was ignored and not included in the record. He was sentenced to
15 years' imprisonment and in addition to one to five years precautionary
detention (medidas de seguridad eliminativas). Without the assistance of
legal counsel, he appealed against the decision of the court of first instance
to the Supreme Military Tribunal in August 1980.
A case concerning Mr. Conteris, which had been submitted to the Inter-
American Commission on Human Rights (IACHR) by an unrelated third
party, was withdrawn at the request of the Conteris family dated 12 May
1983.
ISSUE:
RULING:
The Committee also observes that the author has made detailed allegations
that Hiber Conteris was denied judicial guarantees set out in a number of
provisions of article 14 of the Covenant.
- of article 14, paragraph 3 (c), because he was not tried without undue
delay;
- of article 14, paragraph 3 (d), because he was not tried in his presence
and could not defend himself in person or through legal counsel of his own
choosing;
11.1 The Committee, accordingly, is of the view that the State party is
under an obligation to take effective measures to remedy the violations
which Mr. Hiber Conteris has suffered and to grant him compensation.
Chitat Ng v. Canada, Communication No. 469/1991, U.N. Doc.
CCPR/C/49/D/469/1991 (1994).
FACTS:
Article 6 of the Extradition Treaty between Canada and the United States
provides:
Canada abolished the death penalty in 1976, except for certain military
offences.
The power to seek assurances that the death penalty will not be imposed is
discretionary, and is conferred on the Minister of Justice pursuant to
section 25 of the Extradition Act.
ISSUE:
RULING:
The Committee noted that the author does not claim that extradition as
such violates the Covenant, but rather that the particular circumstances
related to the effects of his extradition would raise issues under specific
provisions of the Covenant. Accordingly, the Committee found that the
communication was thus not excluded ratione materiae.
The Committee considered the contention of the State party that the claim
is inadmissible ratione loci. Article 2 of the Covenant requires States
parties to guarantee the rights of persons within their jurisdiction. If a
person is lawfully expelled or extradited, the State party concerned will not
generally have responsibility under the Covenant for any violations of that
person's rights that may later occur in the other jurisdiction. In that sense a
State party clearly is not required to guarantee the rights of persons within
another jurisdiction. However, if a State party takes a decision relating to a
person within its jurisdiction, and the necessary and foreseeable
consequence is that this person's rights under the Covenant will be violated
in another jurisdiction, the State party itself may be in violation of the
Covenant.
the Committee concludes that execution by gas asphyxiation, should the
death penalty be imposed on the author, would not meet the test of "least
possible physical and mental suffering", and constitutes cruel and inhuman
treatment, in violation of article 7 of the Covenant. Accordingly, Canada,
which could reasonably foresee that Mr. Ng, if sentenced to death, would
be executed in a way that amounts to a violation of article 7, failed to
comply with its obligations under the Covenant, by extraditing Mr. Ng
without having sought and received assurances that he would not be
executed.