THE UNITED NATIONS AND THE GUARANTEES OF A FAIR TRIAL IN THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND THE
CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT
By Alfred de Zayas(1)
There is merit in the view that standard-setting in the field of human rights has been largely completed and that today's priorities have shifted to the field of implementation, for which both monitoring and publicity are necessary. In this context The United Nations Commission on Human Rights and Sub-Commission on the Prevention of Discrimination and Protection of Minorities have appointed Special Rapporteurs with competence to conduct fact-finding and make recommendations to their respective organs. Expert committees such as the United Nations Human Rights Committee and the Committee Against Torture routinely examine the reports of States parties to the respective conventions and concretise the meaning and scope of the existing norms by applying them in individual cases pursuant to the petitioning procedures under the Optional Protocol(2) to the International Covenant on Civil and Political Rights (hereafter "ICCPR" and "Covenant") and article 22(3) of the Convention against Torture.
On the other hand there remain certain important fields of human rights where new norms are still being developed or fine-tuned. Among those fields where fine-tuning is taking place is that of fair trial standards, already codified into hard law in the form of the relevant provisions of the ICCPR and of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Further elaboration in the form of soft law has emerged in the "General Comments" of the United Nations Human Rights Committee, and in the numerous standards drafted under the auspices of the United Nations Crime Prevention and Criminal Justice Branch in Vienna and subsequently adopted at the United Nations Congresses on the Prevention of Crime and the Treatment of Offenders. The studies and resolutions of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities and of the Commission on Human Rights have been of considerable value in better understanding the norms and the implementation problems in the various legal systems throughout the world.
Since fair trial standards are frequently violated during states of emergency, the question is being discussed whether certain "core" provisions of articles 9 and 14 of the ICCPR should not be deemed to be non-derogable.
I. Derogability under the Covenant
Article 4 of the ICCPR provides for the possibility of derogating from certain Covenant obligations "[i]n time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed."
As Professor Manfred Nowak correctly notes in his Commentary to the ICCPR, derogation is an extraordinary measure, which is allowed only in times of an emergency threatening the life of the nation, a danger that must not be imagined or simply feared. Rather, the life of the nation, and not that of a given ruler, must be directly threatened to an exceptional extent, e.g. in a situation of war. The threat must be direct and its effects concern the entire nation and make uncertain the continuation of the community's organized life.(4) This high standard is similar to that in article 15, paragraph 1, of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which also requires the existence of an emergency that threatens the life of the nation.
Twenty-three States parties to the ICCPR, in all regions of the world, have made use of this right of derogation. These States are: Algeria, Argentina, Azerbaijan, Bolivia, Chile, Colombia, Ecuador, El Salvador, Israel, Nicaragua, Panama, Peru, Poland, the Russian Federation, Sri Lanka, Sudan, Suriname, Trinidad and Tobago, Tunesia, the United Kingdom of Great Britain and Northern Ireland, Uruguay, Venezuela and Yugoslavia.(5)
The Human Rights Committee, established under article 28 of the ICCPR, has not failed to remind these States of the limitations provided for in article 4, namely that derogation can be only "to the extent strictly required by the exigencies of the situation" and that measures adopted in derogation of the Covenant must not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. This means that, while a derogation from certain articles is possible, such derogation cannot be discriminatory. Moreover, States parties that make use of their right of derogation must give reasons and specify the date of termination thereof.
Pursuant to article 4, paragraph 2, no derogation is allowed from articles 6 (right to life), 7 (prohibition of torture), 8 paragraphs 1 and 2 (prohibition of slavery), 11 (prohibition of imprisonment for debt), 15 (nullum crimen sine lege), 16 (right to recognition as a person before the law), and 18 (freedom of religion).
Since articles 9 and 14 are not among those non-derogable articles mentioned above, they have been subject to derogation, e.g. by the United Kingdom in the context of its anti-terrorism campaigns related to Northern Irish affairs. The British notification was made on 17 May 1976 and withdrawn on 22 August 1984, renotified for article 9 on 23 December 1988, on 31 March and 18 December 1989.
For States parties to the Covenant the continued practice of derogations during states of emergency has been the subject of dialogue with the Committee in the context of the examination of States reports under article 40 of the Covenant. In this dialogue the Committee, while not questioning the right of States parties to derogate from certain obligations in states of emergency, always urge States parties to withdraw the derogations as soon as possible.
For States that have ratified the Optional Protocol, the Committee also considers derogations in the context of the examination of individual complaints. The Committee has consistently given a very narrow interpretation to the derogations, e.g. in the context of the Uruguayan general derogation of 30 July 1979. This derogation did not prevent the Committee from finding a violation of Covenant provisions in a number of cases.(6)
Thus, in discussing the modalities of derogation in connection with its examination of communication No. 34/1978 (Jorge Landinelli Silva et al v. Uruguay), which concerned the denial of political rights under article 25, the Committee explained Uruguay's Covenant obligations as follows:
Although the Government of Uruguay, in its submission of 10 July 1980, has invoked
Article 4 of the Covenant in order to justify the ban imposed on the authors of the
communication, the Human Rights Committee feels unable to accept that the
requirements set forth in Article 4(1) of the Covenant have been met . . . . In its note of
28 June 1979 to the Secretary-General of the United Nations . . . which was designed to
comply with the formal requirements laid down in Article 4(3) of the Covenant, the
Government of Uruguay has made reference to an emergency situation in the country
which was legally acknowledged in a number of "institutional Acts". However, no
factual details were given at that time. The note confined itself to stating that the
existence of the emergency situation was "a matter of universal knowledge"; no attempt
was made to indicate the nature and the scope of the derogations actually reported with
regard to the rights guaranteed by the Covenant, or to show that such derogations were
strictly necessary.
Although the sovereign right of a State party to declare a state of emergency is not questioned, in the specific context of the present Communication, the Human Rights Committee is of the opinion that a State, by merely invoking the existence of exceptional circumstances, cannot evade the obligations which it has undertaken by ratifying the Covenant. Although the substantive right to take derogatory measures may not depend on a formal notification being made pursuant to Article 4(3) of the Covenant, the State party concerned is duty-bound to give a sufficiently detailed account of the relevant facts when it invokes Article 4(1) of the Covenant in proceedings under the Optional Protocol. It is the function of the Human Rights Committee, acting under the Optional Protocol, to see to it that States parties live up to their commitments under the Covenant. In order to discharge this function and to assess whether a situation of the kind described in article 4(1) of the Covenant exists in the country concerned, it needs full and comprehensive information. If the respondent Government does not furnish the required justification itself, as it is required to do under Article 4(2) of the Optional Protocol and Article 4(3) of the Covenant, the Human Rights Committee cannot conclude that valid reasons exist to legitimate a departure from the normal legal regime precribed by the Covenant.(7)
In its Views on communication Nr. 52/1979 (Lopez Burgos v. Uruguay), the Committee disregarded the Uruguayan reservation holding that:
The Government of Uruguay has referred to provisions, in Uruguayan law, of "prompt security measures". However, the Covenant (art. 4) does not allow national measures derogating from any of its provisions except in strictly defined circumstances, and the Government has not made any submissions of fact or law in relation thereto. Moreover, some of the facts referred to above raise issues under provisions from which the Covenant does not allow any derogation under any circumstances.(8)
The Committee went on to find violations of articles 7, 9, 14 and 22 of the Covenant The Committee followed the precedent in case No. 64/1979 (C. Salgar de Montejo v. Colombia), using nearly identical language with respect to the State party's obligation to give a sufficiently detailed account of the relevant facts to show that a situation of the kind described in article 4(1) existed.(9)
In case No. 46/1979 (O. Falls Borda v. Colombia) the Committee noted "that the Government of Colombia in its submission of 30 April 1980 made reference to a situation of disturbed public order in Colombia within the meaning of Article 4, paragraph 1, of the Covenant. In its note of 18 July 1980 to the Secretary-General . . . the Government of Colombia has made reference to the existence of a state of siege in all the national territory since 1976 and to the necessity to adopt extraordinary measures within the framework of the legal régime provided for in the National Constitution for such situations. With regard to the rights guaranteed by the Covenant, the Government of Colombia declared that "temporary measures have been adopted that have the effect of limiting the application of Article 19, paragraph 2, and Article 21 of the Covenant."(10) Since the Falls Borda case did not involve these articles, the Committee proceeded to make a finding of a violation of article 9, paragraphs 3 and 4 of the Covenant.(11)
In a recent case under the Optional Protocol brought against Nicaragua, in which the author claimed to be a victim of a violation of various articles of the Covenant, including articles 9 and 14, the Government of Nicaragua did not make reference to its derogations, notified to the Committee on 4 June 1980, 14 April, 8 June, 26 August, 14 December 1982, 8 June, 1 August, 22 August 1984, and 13 November 1985. In the Committee's Views on Communication No. 328/1988 Zelaya v. Nicaragua, adopted on 20 July 1994, the Committee found that Nicaragua had violated articles 7, 9, 10 and 14 of the Covenant. While article 7 is non-derogable, articles 9, 10 and 14 fell under Nicaragua's various derogations,(12) which, however, were not taken into account in the Committee's Views, perhaps because the State party did not expressly invoke them.(13)
Although derogation from articles 9 and 14 remains possible, the Committee is reluctant to allow States to opt out of "core rights" such as habeas corpus and the right to a fair trial. As can be confirmed in the confidential summary records of discussions of communications under the Optional Protocol, the general feeling in the Committee is that a State should not be able to derogate from basic judicial guarantees necessary to vindicate non-derogable rights, such as the right to life and the right not to be subjected to torture. This position is similar to that expressed in the 1984 "Siracusa Principles"(14) that respect for the fundamental rights enshrined in articles 9 and 14 of the Covenant "is essential in order to ensure enjoyment of non-derogable rights and to provide an effecive remedy against their violation. In particular (e) any person charged with an offence shall be entitled to a fair trial by a competent, independent and impartial court established by law . . . (g) any person charged with a criminal offence shall be entitled to the presumption of innocence." In this connection we should also refer to the "Minimum Standards of Human Rights Norms in a State of Emergency",(15) issued by the International Law Association at its Paris meeting in 1984 and to the "Turku Declaration" of Minimum Humanitarian Standards, adopted by a meeting of experts in Abo/Turku, Finland in 1990.(16)
Moreover, a complete derogation from articles 9 and 14 would appear to be incompatible with a State party's general undertaking under article 2, paragraph 3(a), to ensure that any person whose rights or freedoms are violated shall have "an effective remedy, notwithstanding the fact that the violation has been committed by persons acting in an official capacity," and under article paragraph 3(b), to ensure that "any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy."
In its general comment on article 4, adopted at its thirteenth session in 1981, the Committee stressed "that measures taken under article 4 are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened."(17) In the light of the Committee's enhanced experience under article 40 and its growing jurisprudence, several members of the Committee have urged the adoption of an up-dated general comment on the issue of derogation.
In this context reference should be made to the Committee's general comment on article 9, which emphasizes the obligation of States parties under article 2, paragraph 3, to ensure that an effective remedy is provided in cases where an individual claims to be deprived of his liberty in violation of the Covenant.(18) While the general comment does not address the issue of derogation, it stresses, with regard to preventive detention that "it must not be arbitrary, and must be based on grounds and procedures established by law (para. 1), information of the reasons must be given (para.2) and court control of the detention must be available (para.4) as well as compensation in the case of a breach (para.5)."(19)
Related to the issue of derogation is that of limitation of rights for reasons of e.g. health, morals and ordre public. Limitation clauses are contained in articles 12, 18, 19, 21 and 22 of the Covenant. In its examination of States reports under article 40 of the Covenant and of communications under the Optional Protocol, the Committee has applied a restrictive standard with regard to the compatibility of such limitations with the object and purpose of the pertinent Covenant provisions. Of course, there are cases in which the Committee has found that the limitation was valid, e.g. in the Bhinder v. Canada case, where the Committee held that the requirement of wearing a hard hat in the work place for safety reasons did not violate the author's article 18 rights, and that the author's right to wear a turban was subject to the limitation clause of Article 18, paragraph 3, as long as he was employed in a "hard hat area" at the Toronto coach yard.(20)
Also related to the issue of derogation is that of reservations submitted at the time of ratification of or accession to the Covenant, although, admittedly, the issue of a state of emergency does not at all come into play. In other words, a State need not justify a reservation by reference to any "public emergency which threatens the life of the nation".
II. Elevating Articles 9 and 14 to the Rank of Non-derogable Rights: Covenant Amendment
or Draft Third Optional Protocol
In order to give articles 9 and 14 the same rank of non-derogablily as those rights listed in article
4 of the Covenant, an amendment pursuant to article 51 of the Covenant could be proposed by
any State party to the Covenant.
The questionnaire on the right to fair trial distributed by the organizers of this symposium seeks inter alia to explore the question of derogation and the pros and cons of the drafting and adoption of a third optional protocol to the UN Covenant on Civil and Political Rights making articles 2(3), 9(3), 9(4), and 14 non-derogable.
In 1993 the Sub-Commission on Prevention of Discrimination and Protection of Minorities proposed to States parties to the Covenant the adoption of a Third Optional Protocol which would have elevated articles 9 and 14 to the level of non-derogability.
The proposal was duly considered by the Human Rights Committee during its fiftieth session in April 1994. However, no member of the Committee welcomed the proposal.(21) In their recommendation to the Sub-Commission they expressed their concerns as follows:
Based on its experience derived from the consideration of States parties' reports
submitted under article 40 of the Covenant, the Committee wishes to point out that, with
respect to article 9, paragraphs 3 and 4, the issue of remedies available to individuals
during states of emergency has often been discussed. The Committee is satisfied that
States parties generally understand that the right to habeas corpus and amparo should not
be limited in situations of emergency. Furthermore, the Committee is of the view that
the remedies provided in article 9, paragraphs 3 and 4, read in conjunction with article 2
are inherent to the Covenant as a whole. Having this in mind, the Committee believes
that there is a considerable risk that the proposed draft third optional protocol might
implicitly invite States parties to feel free to derogate from the provisions of article 9 of
the Covenant during states of emergency if they do not ratify the proposed optional
protocol. Thus, the protocol might have the undesirable effect of diminishing the
protection of detained persons during states of emergency.
The Committee is also of the view that it would simply not be feasible to expect that all
provisions of article 14 can remain fully in force in any kind of emergency. Thus, the
inclusion of article 14 as such into the list of non-derogable provisions would not be
appropriate.
In the light of the foregoing, the Committee considers it inadvisable to pursue the elaboration of a draft optional protocol to the Covenant with the aim of adding article 9, paragraphs 3 and 4, as well as article 14 to the list of non-derogable rights enumerated in article 4, paragraph 2, of the Covenant.(22)
Similarly, the International Committee of the Red Cross formulated its doubts as follows:
We would like to point out that there may be a certain danger in doing this by way of an
optional protocol because this may give the impression that the non-derogability of
fundamental judicial guarantees is optional. States which do not ratify may well then
derogate from these standards arguing that the protocol does not bind them. It may be
useful, therefore, to study whether there may be some other way to make it clear that
certain essential guarantees are already non-derogable in order to respect in fact the non-derogable character of the right to life and the prohibition of torture and inhuman
treatment.(23)
In the light of these comments, it does not appear probable that the draft optional protocol will find the necessary support in the UN Commission on Human Rights or in the General Assembly to be adopted. It is more realistic to expect that the jurisprudence of the Human Rights Committee will continue treating several aspects of articles 9 and 14, for all practical purposes, as non-derogable, especially because of the links between those rights and other non-derogable rights. Moreover, new general comments on articles 4, 9 and 14 will probably separate those "core" elements, which should not be subject to derogation, from less crucial aspects of articles 9 and 14. This has been suggested by members of the Committee, and it is to be hoped that the Committee will soon provide States and the human rights community with new general comments that will reflect these concerns.
Leandro Despouy, Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, responsible for states of emergencies, called a conference of experts to Geneva in May 1995. The results of the Conference will be published this spring. While the participants agreed that articles 9 and 14 of the Covenant are very important, and that states of emergency should not lead to derogation, there was little enthusiasm for the proposal to endorse a new optional protocol.
III. Review of the Jurisprudence and General Comments of the Human Rights Committee Concerning Fair Trial
1. General Comments
The Committee has not yet adopted general comments on all articles. For instance, it has not yet adopted a general comment on article 15 (nulla poena sine lege), but it has adopted them with respect to
article 4: derogation in time of public emergency (adopted in 1981);
article 7: prohibition of torture and ill-treatment (the first general comment was adopted in 1982, which was replaced by a second in 1992);
article 9: security of person, prohibition of arbitrary arrest, habeas corpus (adopted in 1982);
article 10: humane treatment during detention (adopted in 1982 and replaced in 1992);
article 14: fair trial guarantees (adopted in 1984).
The Committee is considering to issue new general comments on articles 4 and 14 in the near future.
2. Case Law
Since its establishment in 1977 the Human Rights Committee has registered 675 cases and adopted its "Views" (final decisions on the merits) concerning 216 of them. Many of these Views concern issues of the administration of criminal justice and concretise the Committee's understanding of numerous provisions of the Covenant, notably articles 7, 9, 10, 14 and 15. Undoubtedly the most dynamic, creative work of the Committee is found in its growing jurisprudence, which parallels that on regional bodies such as the European Commission and the European Court of Human Rights.
The paper presented in 1994 to the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities by Mr. Stanislav Chernichenko and Mr. William Treat on "The Administration of Justice and the Human Rights of Detainees. The Right to a fair trial: Current recognition and measure necessary or its strengthening"(24) contains a valuable summary of international case-law, including the Committee's jurisprudence as it relates to fair trial issues.
Rather than recapitulating what is already contained in their report, I shall endeavor to provide information on subsequent jurisprudence.
a) Article 9 (prohibition of arbitrary arrest or detention; habeas corpus)
Article 9 of the Covenant guarantees to everyone the right to liberty and security of person. Under paragraph 1, no one shall be subjected to arbitrary arrest or detention. Paragraph 2 prescribes that anyone who is arrested shall be informed, at the time of his arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. Paragraph 3 gives anyone arrested or detained on a criminal charge the right to be brought promptly before a judge and states that it shall not be the general rule that persons awaiting trial shall be detained in custody. Paragraph 4 entitles anyone deprived of his liberty to take proceedings before a court, in order to have the court decide on the lawfulness of his detention. Paragraph 5 gives anyone who has been the victim of unlawful arrest or detention a right to compensation.
Article 9(1)
As to the concept of "arbitrariness" of a detention, neither the Covenant itself nor the travaux
preparatoires provide much guidance.
In case No. 458/1991 (Albert Mukong v. Cameroon), the author claimed that he had been arbitrarily arrested and detained over a period of several months. The State party rejected the author's claim by indicating that the author was arrested and detained in accordance with the applicable rules of criminal procedure and that the police detention and preliminary inquiries by the examining magistrate were compatible with article 9. In its Views the Committee considered:
It remains . . . to be determined whether other factors may render an otherwise lawful arrest and detention 'arbitrary' within the meaning of article 9. The drafting history of article 9, paragraph 1, confirms that 'arbitrariness' is not to be equated with 'against the law', but must be interpreted more broadly to include elements of inappropriateness, injustice, and lack of predictability and due process of law . . . this means that . . . remand in custody must further be necessary in all the circumstances, for example to prevent flight, interference with evidence or the recurrence of crime.(25)
The Committee concluded that the author's detention was neither reasonable nor necessary in the circumstances of the case and was thus in violation of article 9, paragraph 1, of the Covenant.
Article 9 (2)
One of the recurrent issues before the Committee is whether and at what moment an interpreter should be made available to a suspect or to an accused. In case No. 493/1992 (Griffin v. Spain), the author, a Canadian citizen who did not speak Spanish, claimed a violation of article 9, paragraph 2, because there was no interpreter present when he was arrested and he was therefore not informed of the reasons for his arrest. In its Views, the Committee observed:
That the author was arrested and taken into custody at 11:30 p.m. on 17 April 1991, after the police, in the presence of the author, had searched the camper and discovered the drugs. The police reports further reveal that the police refrained from taking his statement in the absence of an interpreter, and that the following morning the drugs were weighed in the presence of the author. He was then brought before the examining magistrate and, with the use of an interpreter, he was informed of the charges against him. The Committee observes that, although no interpreter was present during the arrest, it is wholly unreasonable to argue that the author was unaware of the reasons for his arrest. In any event, he was promptly informed, in his own language, of the charges held against him.(26)
Article 9(3)
One of the important rights guaranteed in article 9 of the Covenant is the right of every arrested
person to be brought "promptly" before a judge.(27)
While the meaning of the term "promptly" in
article 9(3) must be determined on a case by case basis, the Committee has stated in its general
comment on article 9 and its jurisprudence that delays should not exceed a few days.
The celerity of criminal procedures continues to occupy the Committee, both with respect to
delays between arrest and indictment and between the indictment, the trial at first instance and
the appeal.
In case No. 386/1986 (Koné v. Senegal), the author had been arrested on 15 January 1982 and
released on 9 May 1986; during this time no trial date was set. The Committee concluded that
the author's detention of four years and four months was incompatible with the provisions of
article 9, paragraph 3, that anyone arrested on a criminal charge shall be entitled to trial within a
reasonable time or release.(28)
In case No. 373/1989 (Stephens v. Jamaica), it was not clear on which exact day the author was
broght before a judge or other officer authorized to exercise judicial power. In any event, this
occurred not earlier than eight days after he had been taken into custody. A delay exceeding
eight days was deemed to be incompatible with article 9, paragraph 3.(29)
Paragraph 3 of article 9 also stresses that it shall not be the general rule that persons awaiting
trial shall be detained in custody. In recent jurisprudence this provision has been found to bar
many instances of pretrial detention.
In case No. 447/1991 (Shalto v. Trinidad and Tobago) the author had been found guilty of
murdering his wife. However, the Court of Appeal, on 23 March 1983, quashed his conviction
and ordered a retrial. The author remained in detention until the retrial, which started on 20
January 1987. The Committee found that the author's detention for a period of almost four years
between the judgment of the Court of Appeal and the beginning of the retrial could not be
deemed compatible with the provisions of article 9, paragraph 3.(30)
Article 9(4) habeas corpus
In case No. 330/1988 (Albert Berry v. Jamaica), the complainant was detained for two and one
half months before he was brought before a judge; throughout this period, he had no access to
legal representation. The Committee found that this amounted to a violation of paragraphs 3 and
4 of article 9, since Mr. Berry 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.
b) Article 14 (fair trial)
Article 14(1) independence of the judiciary
Article 14, paragraph 1, provides that all persons shall be equal before the courts and gives
everyone the right to a fair trial in both civil and criminal proceedings. This article also
addresses the crucial issue of the independence of the judiciary and adds to the concept of a "fair
and public hearing" the requirement that claims be adjudicated expeditiounsly.
In case No. 468/1991 (Angel Oló Bahamonde v. Equatorial Guinea), the author's attempts to
obtain judicial redress before the courts had remained unsuccessful. The Committee observed
that:
[T]he notion of equality before the courts and tribunals encompasses the very access to
the courts and that a situation in which an individual's attempts to seize the competent
jurisdictions of his/her grievances are systematically frustrated runs counter to the
guarantees of article 14, paragraph 1. In this context, the Committee has also noted the
author's contention that the State party's President controls the judiciary in Equatorial
Guinea. The Committee considers that a situation where the functions and competences
of the judiciary and the executive are not clearly distinguishable or where the latter is
able to control or direct the former is incompatible with the notion of an independent and
impartial tribunal within the meaning of article 14, paragraph 1, of the Covenant.(31)
In case No. 514/1992 (Fei v. Colombia), the author, who had separated from her husband and
subsequently left Colombia and taken up residence in Italy, was engaged in procedures before
the Colombian courts concerning visiting rights and custody of her two children. She claimed
that the proceedings had been deliberately delayed by the Colombian judicial authorities. The
Committee observed that the concept of "fair trial" includes also other elements than those of
impartiality and independence of the judicial authorities:
Among those . . . are the respect for the principles of equality of arms, of adversary
proceedings and of expeditious proceedings. In the present case, the Committee is not
satisfied that the requirement of equality of arms and of expeditius procedure have been
met. It is noteworthy that every court action instituted by the author took several years to
adjudicate -- and difficulties in communication with the author, who does not reside in
the State party's territory, cannot account for such delays, as she had secured legal
representation in Colombia. The State party has failed to explain these delays. On the
other hand, actions instituted by the author's ex-husband and by or on behalf of her
children were heard and determined considerably more expeditiously. As the Committee
has noted in its admissibility decision, the very nature of custody proceedings or
proceedings concerning access of a divorced parent to his children requires that the
issues complained of be adjudicated expeditiously.(32)
Article 14(2) adequate time and facilities
Some authors have complained to the Committee that States parties have failed to provide
translations of documents which they claim they needed for their defence. In its Views on case
No. 451/1991 (Harward v. Norway), the Committee did not find a violation of the Covenant and
argued:
[I]t is important for the guarantee of a fair trial that the defence has the opportunity to
familiarize itself with the documentary evidence against an accused. However, this does
not entail that an accused who does not understand the language used in court, has the
right to be furnished with translations of all relevant documents in a criminal
investigation, provided that the relevant documents are made available to his counsel.
The Committee notes that Mr. Harward was represented by a Norwegian lawyer of his
choice, who had access to the entire file, and that the lawyer had the assistance of an
interpreter in his meetings with Mr. Harward. Defence counsel therefore had opportunity
to familiarize himself with the file and, if he thought it necessary, to read out Norwegian
documents to Mr. Harward during their meeting, so that Mr. Harward could take note of
its contents through interpretation. If counsel would have deemed the time available to
prepare the defence . . . inadequate . . ., he could have requested a postponement of the
trial, which he did not do.(33)
Article 14 (3)(c) trial without undue delay
One of the important guarantees of article 14 is the right to be tried without undue delay. The
Committee's General Comment on article 14 explains that "this guarantee relates not only to the
time by which a trial should commence, but also the time by which it should end and judgment
be rendered; all states must take place 'without undue delay'. To make this right effective, a
procedure must be available in order to ensure that the trial will proceed 'without undue delay',
both in first instance and on appeal."
In case no 428/1990 (François Bozize v. the Central African Republic), the Committee found a
violation of this provision, as Mr. Bozize, a political opponent of the Government, still had not
been tried at the first instance after four years of detention.(34)
In case No. 473/1991 (Barroso v. Panama), the Committee found a violation of article 14,
paragraph 3 (c), because of a delay of over three and a half years between indictment and trial.
Similarly in case No. 336/1988 (Nicole Fillastre v. Bolivia), the Committee found a violation of
article 14 (3)(c) where the accused had been indicted in 1987 and the determination of these
charges had not resulted in a judgment at first instace nearly four years later. The State party
had not shown that the complexity of the case was such as to justify the delay. The Committee
specifically rejected the State party's explanation that financial constraints affected the
administration of justice and therefore justified the delay.(35)
Article 14 (3)(d) legal aid representation
One of the interesting new issues before the Committee in a number of Jamaican cases is the
extent of representation which a legal aid lawyer is required to provide pursuant to article 14,
paragraph 3(d), of the Covenant. Many convicts have argued before the Committee that the
legal aid lawyer did not argue on appeal those points that he wanted to see argued.
In its Views in case No. 459/1991, adopted at the Committee's 55th session, in October 1995, the
Committee argued:
As regards Mr. Harvey's claim that he was not effectively represented on appeal, the
Committee notes that the Court of Appeal judgment shows that Mr. Harvey's legal aid
counsel for the appeal conceded at the hearing that there was no merit in the appeal. The
Committee recalls that while article 14, paragrph 3(d), does not entitle the accused to
choose counsel provided to him free of charge, the Court should ensure that the conduct
of the case by the lawyer is not incompatible with the interests of justice. While it is not
for the Committee to question counsel's professional judgment, the Committee considers
that in a capital case, when counsel for the accused concedes that there is no merit in the
appeal, the Court should ascertain whether counsel has consulted with the accused and
informed him accordingly. If not, the Court must ensure that the accused is so informed
and given an opportunity to engage another counsel. The Committee is of the opinion
that in the instant case, Mr. Harvey should have been informed that his counsel was not
going to argue any grounds in support of the appeal so that he could have considered any
remaining options open to him. In the circumstances, the Committee finds that Mr.
Harvey was not effectively represented on appeal, in violation of article 14, paragraphs
3(b) and (d).
Also during its 55th session, the Committee adopted Views in case No. 596/1994. On the same
issue of effective representation, it found:
As to the author's representation on appeal, in particular the fact 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 chounsel provided to
him free of charge, the Court must ensure that counsel, once assigned, provides effective
representation in the interests of justice. The written judgment of the Court of Appeal
shows that author's counsel argued the appeal, even if he did not advance all the grounds
that the author would have wanted argued. In the circumstances, the Committee finds
that the author's right under article 14, paragraph 3(d) was not violated.
It is not unusual for convicts to be dissatisfied with legal aid counsel, and frequently they
complain to the Committee that counsel did not argue the appeal properly. Of course, this
dissatisfaction would be the same if counsel were privately retained, but because counsel is State
appointed, the responsibility of the State is engaged. The Committee requires that counsel be
competent and that he consult with his client, especially if he intends to withdraw the appeal or
to argue that there is no merit in the appeal. If counsel so consults his client and his client
requests that other legal aid counsel be appointed, the State should accommodate this wish
within reasonable limits. Of course, the client cannot dictate to counsel how to argue an appeal,
and the situation may arise that no counsel could be found who would advance the arguments on
appeal that his client would like to see argued. Moreover, legal aid counsel cannot be expected
to make frivolous appeals when there is no merit in a case. It would seem that article 14,
paragraph 3(d), must be interpreted to ensure at a minimum that counsel explain to the author
what he can argue and what he cannot argue on appeal.
Article 14 (3)(e) witnesses
Pursuant to article 14, paragraph 3(e), an accused person shall have the right to examine, or have
examined, the witnesses against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses brought against him.
In case No. 353/1988 (Lloyd Grant v. Jamaica), the Committee found a violation of this
provision. The witness called on behalf of the defence was said to have been uable to attend the
hearing because she lacked the means to travel to court. The Committee, bearing in mind that
this was a case involving the death penalty, found that, in the circumstances, the judge should
have adjourned the trial and issued a subpoena to secure the attendance of the witness, and the
police should have made transportation available to her.
In case No. 536/1993 (Perera v. Australia), which was declared inadmissible by the Committee,
the author complained that his defence lawyer had not called a certain witness for his defence.
The Committee considered: "that the State party cannot be held accountable for alleged errors
made by a defence lawyer, unless it was or should have been manifest to the judge that the
lawyer's behaviour was incompatible with the interests of justice."(36)
In cases Nos. 464/1991 and 482/1991 (Garfield and Andrew Peart v. Jamaica), a statement
made to the police by the main prosecution witness in the evening after the murder for which the
complainants were charged was not made available to the defence. It was shown that the
statement materially differed from the statement at the preliminary hearing and at the trial. In
the specific circumstances of the case, the Committee considered that the failure to make the
statement available to the defence had seriously obstructed the defence in its cross-examination
of the witness, thereby precluding a fair trial.
Article 14 (3)(f) Right to the free assistance of an interpreter
If an accused person cannot understand the language used in court, he is entitled to an
interpreter. The requirement is that the accused person not be able to understand the language in
a way to be able to defend himself adequately. The Committee had made a finding of non-violation when members of the Breton minority, who are completely fluent in French, have
insisted in having Breton interpreters in court, since they claim to understand Breton better than
French.(37)
Article 14 (3)(g) Right not to give testimony against oneself
Article 14, paragraph 3(g), gives every accused a right not to be compelled to testify against
himself or to confess guilt. In case No. 330/1988 (Albert Berry v. Jamaica). the complainant,
who had been sentenced to death, claimed that the investigating officer had threatened to shoot
him and forced him to sign a prepared statement. The State party had not contested this claim.
In the circumstaces, the Committee found a violation of article 14, paragraph 3(g), in
conjunction with article 7 of the Covenant.
Article 14(5) Right to appeal
Article 14, paragraph 5, gives anyone convicted of a crime the right to have his conviction and
sentence reviewed by a higher tribunal according to law.
The right to appeal can be effectively exercised only if there is a written judgement of a lower
tribunal. On several occasions the Committee has observed that article 14, paragaph 5, has to be
read together with article 14, paragraph 3(c), so that the right to review of conviction and
sentence must be made available without undue dealy. In case No. 377/1989 (Anthony Currie v.
Jamaica), the Committee referred to its prior jurisprudence and reaffirmed that:"under article
14, paragraph 5, a convicted person is entitled to have, within reasonable time, access to written
judgments, 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 found that the failure of the Court of Appeal to issue a written judgment, 13
years after the dismissal of the appeal, effectively barred the complainant from petitioning the
Judicial Committee of the Privy Council and constituted a violation of article 14, paragraphs
3(c) and 5.
In case No. 536/1993 (Perera v. Australia), the Committee had occasion to observe that article
14, paragraph 5, does not require that a Court of Appeal proceed to a factual retrial, but that a
Court conduct an evaluation of the evidence presented at the trial and of the conduct of the trial.
At present the Committee is seised of several cases testing the issue whether a State party is
obliged to provide legal aid to indigent convicts, even in cases where the appeal has no merit.
c) Death Penalty
The Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty, has
been ratified only by 30 States.
While capital punishment, as such, is not prohibited under article 6, paragraph 2, of the
Covenant, the Committee has found a violation of article 6 in cases where it has been
determined that the trial leading to a conviction and sentence of death was marred by violations
of basic fair trial guarantees under article 14 of the Covenant. Whereas a simple violation of a
procedural provision not affecting the result of the trial will not entail a violation of article 6, a
crucial violation of article 14, e.g. the denial of the right to cross examine witnesses, lack of
interpretation, would also mean a violation of 6 if no further possibility of appeal is available.
In its Views in case No. 253/1987 (Paul Kelly v. Jamaica) the Committee observed:
The Committee is of the opinion that the imposition of a sentence of death upon the
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 article 6
of the Covenant. As the Committee has 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 mininum guarantees for the
defence, and the right to review by a higher tribunal.(38)
Having concluded that the final sentence of death had been imposed without the requirements of
article 14 having been fully met, the Committee found that the right protected by article 6 had
been violated.
The Death Row Phenomenon
An issue related to capital punishment is that of the so-called "death row phenomenon".
Hitherto the Committee has not followed the reasoning of the European Court of Human Rights
in its 1989 judgment in Soering v. U.K., and stated that prolongued judicial proceedings do not
per se constitute cruel, inhuman and degrading treatment, if the accused is merely availing
himself of appeal possibilities, even if such delay may be a source of mental strain and tension
for detained prisoners.
In case No. 541/1993 (Simms v. Jamaica) the Committee observed:
Although some national courts of last resort have held that prolonged detention on death
row for a period of five years or more violates their constitutions or laws, the
jurisprudence of this Committee remains that detention for any specific period would not
be a violation of article 7 of the Covenant in the absence of some further compelling
circumstances.(39)
In case No. 606/1994 (Francis v. Jamaica), the Committee had to determine whether the author's
treatment during his nearly 12 years' detention on death row entailed violations of articles 7 and
10 of the Covenant. After having reaffirmed its established jurisprudence, the Committee found
that the delays in this case were attributable to the State party and considered:
Whereas the psychological tension created by prolonged detention on death row may
affect persons in different degrees, the evidence before the Committee in this case,
including the author's confused and incoherent correspondence with the Committee,
indicates that his mental health seriously deteriorated during incarceration on death row.
Taking into consideration the author's description of the prison conditions, including his
allegations about regular beatings inflicted upon him by warders, as well as the ridicule
and strain to which he was subjected during the five days he spent in the death cell
awaiting execution in February 1988, which the state party has not effectively contested,
the Committee concludes that these circumstaces reveal a violation of Jamaica's
obligations under articles 7 and 10, paragrph 1, of the Covenant.(40)
As of today the Committee's position on the death row phenomenon turns on the State
imputability of delays and/or compelling circumstances linked to the individual concerned, such
as in the case of Clement Francis, who became insane during detention.
There are two cases before the Committee involving detention on death row of 15 and 18 years
respectively. Even in the absence of any other compelling circumstance, it is not unlikely that
the Committee will distinguish these cases from the established jurisprudence and find a
violation of article 7 in cases of such inordinate detention on death row.
Emergency Action
Emergency situations call for emergency measures. That is why the Committee's rules of
procedure provide for interim measures of protection pursuant to rule 86. This rule has been
used to obtain stays of execution and deferrals of expulsion of extradition.
In almost all cases State prties have complied with the Committee's requests under rule 86. But
in one Trinidadian case, the person was executed in spite of the Committee's request. In two
Canadian cases the petitioners were extradiated from Canada into the United States. In all three
cases, however, the Committee's requests were received but hours before the scheduled
execution or extradition.
d) Remedies
Article 9(5) compensation
A person who has been subjected to unlawful detention or to a miscarriage of justice in a
criminal conviction is entitled to a remedy, which the Committee usually translates into an
obligation on the part of the State party to pay compensation.
In numerous cases the Committee has urged States to pay compensation for unlawful arrest or
detention. In some cases the Committee has received information that such compensation has
been paid.
Article 14(6) compensation
The provision on the right to compensation for miscarriage of justice was the most controversial
sentence of article 14 at the time of drafting. In Europe this right is recognized in article 3 of the
7th Protocol to the European Convention. The Human Rights Committee has yet to establish
jurisprudence on this point. In one case compensation was denied because pardon had been
granted because of considerations of equity and not because of proof of a miscarriage of justice.
Investigation and punishment
In cases of disappearance, torture, ill-treatment or other grave violations of human rights, the
authors of communications before the Committee have requested that the persons responsible be
punished.
As the Committee has repeatedly held, the Covenant does not establish a right for individuals to
require that the State criminally prosecute another person.(41) On the other hand, the Committee
does consider that the State party is under a duty to investigate thoroughly alleged violations of
human rights, and in particular forced disappearances of persons and violations of the right to
life, and to prosecute criminally, try and punish those held responsible for such violations. This
duty applies a fortiori in cases in which the perpetrators of such violations have been
identified.(42)
In the Committee's Views on case No. 322/1988 (Rodriguez v. Uruguay), the Commitee
concluded that "Mr. Hugo Rodriguez 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 allegatios 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. Rodriguez."(43)
Similarly, in the Committee's Views on case No. 328/1988 (Zelaya v. Nicaragua), the
Committee concluded 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."(44)
Commutation or release
In many cases concerning capital punishment, the Committee has determined that commutation
of sentence is an appropriate remedy where there have been human rights violations that do not
vitiate the conviction. However, where a conviction is arrived at through a proceeding in which
the guarantees of a fair hearing, such as access to counsel, equal opportunity to call witnesses
and to cross-examine witnesses, have been violated, the Committee recommends release.
Typical language is as follows:
The Committee is of the view that Mr. Lubuto is entitled, under article 2, paragraph 3(a)
of the Covenant to an appropriate and effective remedy, entailing a commutation of
sentence. Bearing in mind that, by becoming a State party to the Optional Protocol, the
State party has recognized the competence of the Committee to determine whether there
has been a violation of the Covenant or not and that, pursuant to article 2 of the
Covenant, the State party has undertaken to ensure to all individuals within its territory
and subject to its jurisdiction the rights recognized in the Covenant 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.(45)The Committee is of the view that Mr.
Stephens is entitled, under article 2, paragraph 3(a) of the Covenant, to an appropriate
remedy, including compensation and further consideration of his case by the State party's
Parole Board.
IV. Follow-up Procedure(46)
Although the decisions of the Committee are not binding and cannot be immediately
implemented in the State concerned, most States parties try to cooperate with the Committee and
take measures to implement them, at least in part.
In order to monitor compliance with the Committee's Views and to help States in this task, the
function of the Special Rapportuer for Follow-Up was created in 1990. The first mission of
Special Rapporteur Andreas Mavrommatis (Cyprus) to a State party took place in June 1995. It
should be noted that Jamaica fully cooperated with the mission, produced statistical proof of the
considerable acceleration in the dealing of criminal cases, especially capital cases, documented
the practice of issuing written judgments within relatively short periods after conviction, granted
compensation to certain victims of physical abuse while under detention, and commuted the
death sentences in all cases concerned. Thus far the Jamaica Privy Council has been unable to
agree with the Committee that certain prisoners should be released, notwithstanding the
Committee's recommendation.
V. Committee Against Torture
According to Amnesty International, the UN Special Rapporteur on Torture and other reliable
sources, torture is practiced systematically in many countries. It continues to be an aberration in
the administration of justice, especially during the first few days of detention, when
interrogations are conducted in police stations and the victim is frequently held incommunicado.
Although article 7 of the ICPPR prohibits torture and the Human Rights Committee monitors
compliance with this provision through the State reporting procedure and the examination of
cases under the Optional Protocol, another expert body, the Committee Against Torture, was
established in 1988 to examine specific questions related to torture.
As of today 88 States are parties to the Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment. Thirty-six states have recognized the competence of the
Committee to examine individual complaints.
Since its establishment in 1988, the Committee Against Torture has registered 38 cases and
concluded four by the adoption of "Views". At its forthcoming 16th session in April of this year
four of the pending cases will be ripe for the adoption of Views.
A problem that still plagues the administration of justice in many countries is the use of force by
the police during interrogation with the purpose of obtaining confessions.
Parallel to Article 14 |(3)| (g) of the Covenant, article 15 of the Convention provides: "Each
State Party shall ensure that any statement which is established to have been made as a result of
torture shall not be invoked as evidence in any proceedings."
The Committee against Torture was seised of this issue in the case of Qani Halini Nedzibi v.
Austria. While the facts of that particular case did not allow a finding of a violation of article
15, the Committee did make a finding of a violation of the State party's obligation to promptly
investigate allegations of torture. The Committee noted "that the author made his allegations
before the investigating judge on 5 December 1988. Although the investigating judge
questioned the police officers about the allegations on 16 February 1989, no investigation took
place until 5 March 1990, when criminal proceedings against the police officers were instituted.
The Committee considers that a delay of 15 months before an investigation of allegations of
torture is initiated, is unreasonably long and not in compliance with the requirement of article 12
of the Convention."(47)
In another case, No. 6/1990 (Parot v. Spain), the Committee had to decide whether the author
had been subjected to torture during his interrogation on the days immediately following his
arrest. It focused on a possible violation of article 13 of the Convention, which provides as
follows: "Each State party shall ensure that any individual who alleges he has been subjected to
torture in any territory under its jurisdiction has the right to complain to, and to have his case
promptly and impartially examined by, its competent authorities."
The Committee noted that "in principle, article 13 of the Convention does not require the formal
submission of a complaint of torture. It is sufficient for torture only to have been alleged by the
victim for the State to be under an obligation promptly and impartially to examine the
allegation."
The Committee held, however, that in the particular case there had been no violation, because
the facts showed that the judge had expressly dealt with the complaint and rejected it on the
basis of the five medical examinations that had been carried out at the time of the alleged torture
and the statements made by Parot himself to the Seville medical examiner.(48)
As with the Human Rights Committee, the Committee Against Torture also makes use of its
power to request interim measures of protection.
Article 3 of the Convention provides that "No State party shall expel, return ('refouler') or
extradite a person to another State where there are substantial grounds for believing that he
would be in danger of being subjected to torture."
In a number of cases, petitioners before the Committee Against Torture have requested interim
measures of protection. After due consideration whether the petitioners had made a prima facie
case, the Committee has invoked rule 108, paragraph 9, of its rules of procedure and asked
States parties not to expel the person to any country where he or she might run the risk of being
subjected to torture or of being expelled to a country where he or she might run this risk. The
Committee, however, does not routinely and systematically issue such requests, because
otherwise every immigrant or asylum seeker who has had an application denied will simply
address himself to the Committee with a request for deferral of an expulsion order. In making
its decision the Committee carefully considers whether the country concerned has
conscientiously examined the applicant's case.
VI. Closing Remarks
The rights of detained persons, in particular the guarantees of a fair trial are being vindicted by
the UN Human Rights Committee and by the Committee against Torture. They have a crucial
role in the further elaboration and stengthening of these rightsCross fertilization occurs not only
between the Human Rights Committe and the Committee against Torture, but also between
these bodies and regional institutions such as the Inter-American Commission and Court of
Human Rights and the European Commission and Court of Human Rights.
Much remains to be done by way of publicity, so that victims know their rights and lawyers learn
how to invoke these rights domestically and internationally.
The procedures of the Human Rights Committee and the Committee against Torture also need
simplification and rationalization. The principle of "justice delayed is justice denied" applies
not only to domestic courts and tribunals, but equally to international expert committees.
Indeed, it is an anomaly that sometimes the Human Rights Committee takes five years to
determine that a State party had violated article 9, paragraph 3, and article 14, paragraph 3(c) of
the Covenant by not ensuring a trial within a reasonable time. I believe that this problem can be
solved by simplifying the procedure -- for instance, by joining the consideration of admissibility
and merits in appropriate cases, and by allowing working groups to declare cases inadmissible
rather than tying up the Committee plenary to declare cases inadmissible. Such improvements
in the procedure would not require an amendment to the Optional Protocol but merely to the
Committee's rules of procedure.
And to ensure the credibility of the procedures of both expert Committees, it will be necessary to
strengthen their follow-up competence. Even if the "Views" of these two bodies are not strictu
sensu binding, States parties to individual communications procedures have an interest in
proving that their commitment to human rights is real. This commitment is proven not only by
implementing the decisions of the expert bodies, but, most importantly, by ensuring that
violations do not occur in the future.
1. Senior human rights officer, United Nations Centre for Human Rights. The views expressed in
this paper are those of the author and do not necessarily reflect the position of the United
Nations Human Rights Committee or that of the Centre for Human Rights.
2. There are 88 States parties to the Optional Protocol.
3. Thirty-six States have given the required declaration under article 22.
4. Manfred Nowak, CCPR Commentary, 1993, p. 78-9.
5. UN Doc. CCPR/C/2/Rev.4.
6. Cases Nos. 4/1977, 6/1977, 8/1977, 11/1977, 32/1978, 32/1978, 33/1978, 34/1978, 37/1978,
44/1979, 45/1979, 46/1979, 49/1979, 52/1979, 64/1979, 66/1980, 104/1981, 108/1981, 115/1982,
117/1981, concerning Colombia, Madagascar, Uruguay.
7. Human Rights Committee (HRC), 1981 Annual Report to the General Assembly, Annex XII,
para 8.1-8.3.
8. Selected Decisions under the Optional Protocol, Vol. I, para., 11.6, p. 91.
9. HRC 1982 report, Annex XV, para. 10.3.
10. HRC 1982 report, Annex XIX, para. 13.2.
11. Id., para. 14. Also, Selected Decisions of the Human Rights Committee under the Optional
Protocol, Vol. I, pp. 144-45.
12. For instance, in its notification of 11 November 1985, Nicaragua justified the extension of the
state of emergency by citing military aggression by the United States. UN Doc. CCPR/C/2/Rev.
3.
13. HRC 1994 Report to the General Assembly, Vol. II (not yet issued).
14. The Siracusa Principles on the Limitation and Derogation Provisions in the International
Covenant on Civil and Political Rights, Human Rights Quarterly, vol. 7, 1985, p.237.
15. The Paris Minimum Standards of Human Rights Norms in a State of Emergency, reprinted in
Richard Lillich, "Current Developments: The Paris Minimum Standards of Human Rights
Norms in a State of Emergency", American Journal of International Law, vol. 79, 1985, p.1072.
16. UN Doc. E/CN.4/Sub.2/1991/55.
17. HRI/GEN/1/Rev. 1, pp. 5-6.
18. Id., p. 9.
19. Id.
20. Karnel Singh Bhinder v. Canada, Communication No. 208/1986, Views adopted on 9
November 1989, para. 6.2. Human Rights Committee 1990 Report to the General Assembly,
Supplement No. 40(A/45/40), Volume II, Annex IX.E.
21. In this context it may be added that as revealed by the Summary Records 1314 of 6 April 1994,
no member of the Committee spoke in favour of the third optional protocol proposed by the Sub-Commission. UN Doc. CCPR/C/SR.1314, paras. 50-69.
22. HRC 1994 Report to the General Assembly, Volume I, p. 120, Official Records,Forty-ninth
Session, Supplement No. 40 (A/49/40). See also UN Doc. E/CN.4/Sub.2/1994/26, p. 13.
23. UN Doc. E/CN.4/Sub.2/1994/26, p. 14.
24. UN Doc. E/CN.4/Sub.2/1994/24.
25. 1994 Report of the Human Rights Committee to the General Assembly, Official Records of the
General Assembly, Supplement 40 (A/49/40), Vol. II, Annex IX, sect.AA, para. 9.8.
26. Human Rights Committee, 1995 Report to the General Assembly, Official Records of the
General Assembly, Supplement 40, (A/50/40), Annex X, sect. G., para. 9.2.
27. In September 1995 the Institute of Higher Studies on Criminal Sciences at Syracusa, Italy, held
a conference on the general issue of delay in criminal procedures at which a number of papers
were presented. The papers are being published this spring in the Revue de droit pénal.
28. 1995 Report of the Human Rights Committee to the General Assembly, Vol. II, Annex X, sect. , para. .
29. UN Doc. CCPR/C/55/D/373/1989, para. 9.6 Views adopted on 18 October 1995.
30. 1995 Human Rights Committee Report to the General Assembly, Annex X, sect. , para. ).
31. 1994 Report of the Human Rights Committee to the General Assembly, Annex IX, sect. BB, para. 9.4.
32. Ebenda., Annex X, sect J. para 8.4.
33. 1994 Report of the Human Rights Committee to the General Assembly. Annex IX, sect. X, para. 9.5. Views adopted on 15 July 1994.
34. 1994 Report of the Human Rights Committee to the General Assembly, Annex IX, sect.
35. Human Rights Committee 1992 Report to the General Assembly, Official Records of the General Assembly, Supplement 40 (A/47/40), annex IX, sect. N.
36. Ebenda, Annex XI, sect. G., para. 6.3.
37. Human Rights Committee 1991 Report to the General Assembly, Official Records of the General Assembly, Supplement 40 (A/46/40), cases Nos. 221/1987 and 323/1988 (Yves Cadoret and Hervé Le Behan v. France) annex XI, sec. A, paras 5.6 and 5.7; No. 327/1988, annex XI, sect. F, para. 5.6.
38. Human Rights Committee 1991 Report to the General Assembly, Official Records of the General Assembly, Supplement 40 (A/46/40) annex XI, sect. D., para 5.14.
39. 1995 Report of the Human Rights Committee to the General Assembly, Annex XI, Sect. H, para. 6.5.
40. Id., Annex X, Sect. N, para. 9.2.
41. See the decisions on cases No. 213/1986 (H.C.M.A. v. the Netherlands), adopted 30 March 1989, para. 11.6; No. 275/1988 (S.E. v. Argentina), adopted 26 March 1990, para. 5.5; Nos 343-345/1988 (R.A., V.N. et al. v. Argentina), adopted 26 March 1990, para. 5.5.
42. Views in communication No. 563/1993, Federico Andreu v. Colombia, adopted on 27 October 1995, para. 8.6.
43. Views in Communication No. 322/1988, Rodriguez v. Uruguay, adopted on 19 July 1994, para. 14.
44. Views on communication No. 328/1988, Zelaya v. Nicaragua, adopted on 20 July 1994, para. 12.
45. Views in communication No. 390/1990, Lubuto v. Zambia, adopted on 31 October 1995, paras.9 and 10.
46. Alfred de Zayas, "The Follow-Up Procedure of the UN Human Rights Committee", in International Commission of Jurists, The Review, No. 47/1991, pp. 28-35.
47. Views in communication Nr. 8/1991, Qani Halimi-Nedzibi v. Austria, adopted on 18 November 1993, para. 13.5.
48. Views on communication No. 6/1990, Parot v. Spain, adopted on 2 May 1995, paras. 10.4 and 10.5.