The author of the communication is Achille Benoit Zogo Andela, a national of Cameroon born in 1956. He claims that the State party has violated his rights under articles 2 and 14 (1), (3) (b), (c) and (e) and (5) of the Covenant. The Optional Protocol entered into force for the State party on 27 September 1984. The author is represented by counsel.
Facts as submitted by the author
On 30 March 2011, the author was brought before the government procurator at the Mfoundi high court in Yaoundé. The same day, he was charged by the examining magistrate with the offences of misappropriation of public funds and unlawful withholding of property and was remanded in custody. On 31 March 2011, the examining magistrate ordered that all the author’s bank accounts and those of all his companies should be frozen. On 14 November 2011, pursuant to a rogatory commission, his house was searched and his property seized. The author’s remand in custody, initially set for a period of six months, was twice extended under article 221 of the Criminal Procedure Code, for a total period of 18 months. The author filed an application for provisional release on 14 September 2011, but it was rejected by the examining magistrate on 10 October 2011. The author’s appeal against that decision was ruled inadmissible by the Centre Region court of appeal in Yaoundé on 24 July 2012.
On 12 September 2012, the Special Criminal Court, newly created by Act No. 2011/028 of 14 December 2011, issued a committal order under which the author was kept in custody. On 20 September 2012, the author lodged an appeal to have the judgment of the Centre Region court of appeal set aside. According to the author, the Supreme Court never heard the appeal.3 The author pursued several remedies in unsuccessful attempts to obtain his release, petitioning the President of the Supreme Court on 22 November 2012, applying to the President of the Mfoundi high court for a writ of habeas corpus4 and approaching the President of the Centre Region court of appeal on 24 October 2012 and, lastly, the President of the Mfoundi court on 13 April 2015.5
- The Supreme Court issued its judgment on 1 July 2015, after the initial submission to the Committee in connection with communication No. 2764/2016. See Zogo Andela v. Cameroon (CCPR/C/121/D/2764/2016). ↩
- The application was filed under articles 584 ff. of the Criminal Procedure Code. The date of the application is not indicated. ↩
- The application was filed under article 584 (1) of the Criminal Procedure Code. ↩
In the Views adopted by the Committee on 8 November 2017 concerning an earlier communication submitted on the author’s behalf, the Committee considered that the author’s detention had been arbitrary and requested that the State party, inter alia, immediately release the author “pending his trial” and provide him with compensation.6 The State party has, however, failed to comply with the Committee’s Views.
- Zogo Andela v. Cameroon (CCPR/C/121/D/2764/2016), paras. 7.2 and 9. ↩
With respect to the author’s trial, the hearing before the Special Criminal Court was set for 12 October 2016. Because of the many procedural defects undermining the author’s right to a fair trial, the three lawyers whom he had retained had to discontinue their representation of him in 2016 and 2017. On 25 July 2017, without waiting for the Supreme Court’s decisions on several appeals lodged by the author, the Special Criminal Court decided to begin considering the case. Given this apparently irregular conduct, the author’s new lawyer was, on 17 August 2017, also obliged to withdraw from the case. At a hearing on 23 August 2017, the Special Criminal Court assigned an ex officio defence counsel to the author for the remainder of the hearing. The defence counsel had extremely limited professional experience and was facing criminal proceedings for false representations regarding his title or degree when he was appointed to the case. Furthermore, he was unable to speak with the author or consult the criminal case file and was not given time to prepare the author’s defence. Consequently, the author decided to decline the defence counsel’s assistance.
On 18 September 2017, two new lawyers informed the Special Criminal Court that they had been appointed by the author. They asked for the case to be considered at a later hearing and for the documents in the case file to be sent to them. They received no response from the Court. At the hearing on 18 October 2017, one of the author’s lawyers was instructed to ask for the consideration of the case to be postponed. At the same hearing, the civil party refused to provide the author’s lawyer with a copy of the case file.
On 5 December 2017, on the basis of the Committee’s Views concerning communication No. 2764/2016, the author’s attorneys submitted an application for his release. No action was taken in response to the application. At the hearings on 6 December 2017 and 16 January 2018, the attorneys repeated the request, citing article 45 of the Constitution and article 2 of the Criminal Code, which require the State party to abide by its international commitments.
On 16 January 2018, the Public Prosecution Service refused the author’s application for immediate release, arguing that what had been submitted to it was only a photocopy of the Committee’s decision. The Special Criminal Court then decided to join the author’s application for release on the basis of the Committee’s decision to the merits of the case. It continued hearing the case while the author remained in custody, contrary to the Committee’s Views concerning communication No. 2764/2016. The author lodged a new appeal with the Supreme Court.7
- The appeal was lodged under articles 503, 504 and 600 ff. of the Criminal Procedure Code. ↩
When the hearing resumed on 17 January 2018, the author stated that the decision of the Special Criminal Court to join the issue regarding the implementation of the Committee’s Views to the merits of the case was itself in violation of the State party’s commitment to comply with the Committee’s decisions. He also stated that the Court’s decision was inconsistent with the Committee’s and that it fell to the Supreme Court to rule on the conflict. The author requested, without success, that the case be referred to the Supreme Court, in accordance with article 504 of the Criminal Procedure Code.
On 15 February 2018, the Special Criminal Court refused to allow two civil claims from the author – one made in his name and the other in the name of the company of which he is still the legal representative – at the hearing. The Court refused to consider the issue of forgery of public documents that had arisen in the proceedings. This refusal constitutes a violation of article 385 (1) of the Criminal Procedure Code, under which any person claiming to have been harmed as the result of an offence is entitled to lodge a civil claim at a hearing by means of written submissions or oral statements.
On 7 March 2018, the author made a motion for the disqualification of the judges sitting on the Special Criminal Court. As a result of that motion, no further hearings could be held before the First President of the Court ruled on the disqualification. A few days before his trial was due to resume, the author’s health took a sudden turn for the worse. At 6.11 p.m. on 12 March 2018, while the author was recovering in his cell, he was served with the order dismissing the motion for disqualification. However, the bailiff appointed by the Court to serve the document realized that the service was null and void under Cameroonian law because it had taken place after 6 p.m.8 He therefore had to return the next morning, on 13 March 2018, to once again serve the author with the dismissal order, even though the hearing was scheduled to resume at 9.30 a.m. the same day. That day, the Court heard the witnesses for the prosecution without the author being present, as he was unable to travel to the court because of his poor health, the state of which was confirmed by a medical certificate issued by the doctor at the central prison.
- Cameroon, Decree No. 79/488 of 5 November 1979 on the responsibilities and status of bailiffs and enforcement agents, as amended and supplemented by Decrees No. 85/238 of 22 February 1985 and No. 98/170 of 27 August 1998, art. 20 (4), which states that “[u]nless ordered by the competent judicial official, bailiffs may not act on Sundays or public holidays or on business days before 6 a.m. or after 6 p.m.” ↩
There were numerous other procedural defects, particularly during the hearings. On 2 and 3 May 2018, the Special Criminal Court rejected the author’s request to testify under oath, in violation of article 366 of the Criminal Procedure Code. At the hearing on 13 July 2018, a racial slur was directed at the author’s attorney by the lawyer for the civil party. The author’s attorney lodged a complaint with the President of the Court, who did nothing in response. At the hearing on 29 October 2018, the Court did not allow the author to be heard as a witness, in violation of article 323 (1) of the Criminal Procedure Code, which guarantees to all defendants who so wish the right to be witnesses in cases concerning them at all stages of the proceedings. On the same day, the Court refused to allow the author’s two new attorneys access to the civil party’s complaint, in violation of article 376 of the Criminal Procedure Code.
At the hearing on 29 October 2018, to protest the partiality of the Special Criminal Court, the author’s attorney refused to make his arguments. In a judgment handed down on 28 November 2018 – that is, eight years after the author had been remanded in custody and almost 17 years after the acts that he was accused of had taken place – the Court found the author guilty of misappropriation of public funds and sentenced him to 42 years’ imprisonment. The same day, the author lodged an appeal to have the judgment set aside.
The author points out that he has submitted two communications under international procedures: one was submitted to the African Commission on Human and Peoples’ Rights, seeking a remedy, as a prisoner, for the infringement of his right to health, and the other to the Working Group on Arbitrary Detention for a determination as to the illegality of his detention. As these two other communications relate to violations of rights that the author does not raise before the Committee, the present communication cannot be considered to have been submitted under another international procedure.
The complainant argues that domestic remedies are not available in the case at hand. Firstly, he states that, on 28 November 2018, he lodged an appeal to have the decision of the Special Criminal Court set aside following a trial that had been tainted by violations of his fundamental rights.9 In this regard, the author recalls that article 11 (2) and (3) of Act No. 2011/028 of 14 December 2011 on the establishment of the Special Criminal Court allows the Public Prosecution Service to appeal against decisions of that court on points of law or fact but allows convicted persons to lodge appeals only on points of law. The author is therefore of the view that the remedy provided for under Act No. 2011/028 of 14 December 2011 cannot be considered effective.
- The appeal was lodged under article 12 of Act No. 2011/028 of 14 December 2011 on the establishment of the Special Criminal Court. ↩
The author is of the view that the effectiveness of domestic remedies falls short in terms of the standards of international law, as the State party has failed to meet its obligation to implement the Views that the Committee has already adopted in his favour.
The author claims that it is a matter of common knowledge that the Supreme Court almost systematically hands down rulings several years after the relevant appeals have been lodged, sometimes rendering the appeals entirely moot.10 In the case at hand, the author claims that, as a result of various actions taken by the judicial officials assigned to the Special Criminal Court, both during the investigation and at the hearings, he lodged several criminal and ethics complaints with the Supreme Court and the competent judicial authorities, in accordance with the applicable rules. The author states that, more than two years after the complaints were lodged, no action has been taken on them. He claims that this inaction cannot be explained by his behaviour, the complexity of the case or any other objective reason. The author considers the inaction to be selective, given that, in response to a motion for the disqualification of the First President of the Special Criminal Court made on 15 May 2018 and a motion for the disqualification of the First President and the three judges of the Court made on 29 June 2018, the First President of the Supreme Court issued dismissal orders No. 554 and No. 555 on 20 August 2018, only 89 and 44 days after the motions had been made.
- This is true for Mr. Ndoumou Andre, in whose case the Supreme Court has still not handed down a ruling, even though he has served the full 10-year prison sentence that he had been given. The same can also be said for the six co-defendants in Gilles-Roger Belinga v. Public Prosecution Service and Société immobilière du Cameroun (appeal No. 08/GCAY of 21 March 2011), who lodged an appeal with the Supreme Court on 21 March 2011 and are still waiting for it to issue a ruling. ↩
Lastly, the author states that, under article 13 (2) and (3) of Act No. 2011/028, the special division of the Supreme Court has a period of six months in which to rule on all the issues that have been put before it and regarding which it is required to provide a response. He had lodged his appeal with the Supreme Court on 3 May 2019. Despite the six-month time frame set under the Act, the Supreme Court had still not ruled on the author’s appeal when he submitted his communication to the Committee.11 Consequently, given the years-long unresponsiveness of the highest Cameroonian court in its handling of his case, the author argues that an appeal before it cannot be considered an available remedy.
- The author points out that the six-month period for the Supreme Court to clear an appeal begins to run on the date of the notice of appeal, and not on the date of filing of further pleadings, which can be submitted to the Court only after notification from the clerk’s office and must be filed within a strict deadline of 30 days in order to be valid, in accordance with article 488 of the Criminal Procedure Code. ↩
Complaint
The author argues that, under article 2 of the Covenant, the State party has a duty to ensure the implementation of the Committee’s decisions. He claims that in the present case, the authorities of the State party continued to detain him arbitrarily while taking steps to move forward with his trial, in violation of the Committee’s Views. The author also claims that, because of his continued arbitrary detention, the trial against him in itself constitutes abuse of process, in violation of articles 2 and 14 of the Covenant.
With regard to article 14 (1) of the Covenant, the author claims that the Special Criminal Court was biased throughout the proceedings against him. He recalls, in this regard, that there can be no fair trial where, for example, a court fails to quell expressions of hostility directed towards the defendant by members of the public in the courtroom or expressions of support for one of the parties, thus infringing the rights of the defence.12 The author also recalls that expressions of racist attitudes by a jury that are tolerated by a court13 and racially biased jury selection undermine the fairness of a trial. In the present case, the author claims that lawyers for the civil party directed racial slurs at his attorney in open court on 13 July 2018, and that the President, who is responsible for keeping order in the courtroom, did nothing in response. The author also claims that nothing came of the complaint lodged by his attorney regarding the matter. He recalls, furthermore, that the Court took no account of either his motion for the disqualification of the judges at the hearing on 7 March 2018 or the motion made with respect to the President of the Court at the hearing on 13 July 2018, in violation of article 598 of the Criminal Procedure Code, which requires that proceedings be stayed until there is a ruling on such motions.
The author claims that, when he was asked by the President of the Special Criminal Court which option under article 366 of the Criminal Procedure Code he intended to choose for his defence, he clearly stated that he would make his preference known through his written submissions, which would be read out at the hearing and then appended to the case file. The author states that the President of the Court decided to disregard the choice that the author had indicated and unfairly presumed that he had made an unsworn statement.14 The author argues that article 366 of the Criminal Procedure Code requires that his choice regarding his defence be taken into account and that, under article 367 of the Code, a failure to do so would nullify the proceedings and the resulting ruling. He therefore asks the Committee to order the State party to, in accordance with its national legislation, declare the proceedings and the judgment against him null and void.
- The author indicates that there is a note of this in the record of the hearing. ↩
The author claims that the documents in the case file were sent neither to him nor to his attorneys, which compromised the preparation of his defence. He also states that he was denied access to the civil party’s initial complaint by the Special Criminal Court, in violation of article 376 of the Criminal Procedure Code. The author is therefore of the view that the conduct of the authorities of the State party undermined his right to have adequate time and facilities for the preparation of his defence, in violation of article 14 (3) (b) of the Covenant.
The author claims that the State party violated his right to be tried without undue delay, which is guaranteed under article 14 (3) (c) of the Covenant. The author notes that, while Act No. 2012/011 of 16 July 2012 sets the period for the judicial inquiry at 6 months from the time that the prosecutor requests in writing that an examining magistrate open an investigation,15 the judicial inquiry in his case lasted almost 18 months, 12 more than the period provided for under the Act.16 The author also claims that, in violation of article 10 (1) of Act No. 2012/011, which states that the hearing must take place within 30 days of the notification of the committal order, more than five years elapsed between the end of the investigation and the holding of the hearing. The author points out that this unusually long period should also be considered in the light of the length of time that had elapsed since the alleged offences – which dated back to between 1996 and 2002 – had occurred. In his view, the State party’s delays in acting, both in instituting criminal proceedings and in holding a hearing, made it difficult for him to mount an effective defence. The author asserts that, more than 15 years after the events, key persons involved, including his co-defendant and witnesses who could have made statements on his behalf, have disappeared and the administrative and accounting records of his company – which ceased operating more than 10 years ago – cannot be found.
- Cameroon, Act No. 2012/011 of 16 July 2012 amending and supplementing certain provisions of Act No. 2011/028 of 14 December 2011 on the establishment of the Special Criminal Court, art. 9. ↩
- The judicial inquiry was opened following the written request from the prosecutor dated 30 March 2011. It was then closed by the committal order of 12 September 2012 transferring the case to the Special Criminal Court. ↩
The author points out that three witnesses were questioned by the examining magistrate assigned to the case, and that he never had the opportunity to confront them. He adds that, at the hearing on 13 March 2018, the Special Criminal Court questioned the witnesses without him or his attorneys being present. He claims, furthermore, that the Court never allowed him to call witnesses in his defence, contrary to the terms of article 10 (3) of Act No. 2011/028, which established the Court. The author adds that the witnesses for the prosecution attended all the hearings and that nothing was done to stop them from communicating with each other, in violation of article 327 of the Criminal Procedure Code. In the author’s view, the evidence given at the hearing, on which the prosecution’s case was based, allowed the witnesses not only to find out about the substance of the proceedings but also to confer and adapt their testimony to the circumstances. The author therefore asks the Committee to find a violation of article 14 (3) (e) of the Covenant.
The author recalls that States have a duty substantially to review a defendant’s conviction and sentence, both as to sufficiency of the evidence and of the law.17 In the author’s view, in the present case, article 11 of Act No. 2012/011, regarding appeals, is discriminatory against him, as it is only the Public Prosecution Service that can lodge appeals raising points of law or fact, which hinders his ability to fully exercise his right to have his conviction reviewed by a higher tribunal. The author recalls, furthermore, that his conviction is essentially based on the statements of witnesses who were never questioned by him during the investigation or cross-examined during the proceedings before the Special Criminal Court, and that this failing cannot be remedied by means of an appeal on points of law. Consequently, the author is of the view that the State party has violated his rights under article 14 (5) of the Covenant, with regard to his right to have his conviction reviewed by a higher tribunal.
- Bandajevsky v. Belarus (CCPR/C/86/D/1100/2002), para. 10.13. ↩
Lack of cooperation by the State party
On 28 October 2020, 1 July 2021 and 19 July 2022, the State party was asked to submit information on the admissibility and merits of the communication. The Committee notes that it has not received any specific response to the author’s allegations and regrets the State party’s failure to cooperate by sharing its observations on the present communication. It recalls that, in conformity with article 4 (2) of the Optional Protocol, the State party has the duty to investigate in good faith all allegations of violations of the Covenant made against it and its representatives and to transmit to the Committee the information in its possession.18 In the absence of a reply from the State party, the Committee must give due weight to the author’s allegations, to the extent that they are sufficiently substantiated.19
- See, inter alia, Rsiwi v. Algeria (CCPR/C/130/D/2843/2016), para. 6; Dafar v. Algeria (CCPR/C/130/D/2580/2015), para. 4; Mezine v. Algeria (CCPR/C/106/D/1779/2008/Rev.1), para. 8.3; and Medjnoune v. Algeria (CCPR/C/87/D/1297/2004), para. 8.3. ↩
- El Hassy v. Libyan Arab Jamahiriya (CCPR/C/91/D/1422/2005), para. 4; El Alwani v. Libyan Arab Jamahiriya (CCPR/C/90/D/1295/2004), para. 4; Kurbonov v. Tajikistan (CCPR/C/86/D/1208/2003), para. 4; and Diergaardt et al. v. Namibia (CCPR/C/69/D/760/1997), para. 10.2. ↩
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
The Committee takes note of the information provided by the author that he has submitted a communication to the Working Group on Arbitrary Detention to seek a determination as to the illegality of his detention. The Committee also takes note of the information provided by the author that he has made a submission to the African Commission on Human and Peoples’ Rights regarding the infringement of his right to health as a detainee and the illegality of his detention. The Committee notes that, according to the author, the subject matter of these two submissions differs from that of the present communication. Consequently, in the absence of information from the State party, the Committee considers that the same matter is not being examined under another procedure of international investigation or settlement within the meaning of article 5 (2) (a) of the Optional Protocol.
The Committee takes note of the author’s argument that domestic remedies are not available in the present case, owing in particular to: (a) his inability to appeal against decisions of the Special Criminal Court on points of fact; (b) the State party’s refusal to implement the Committee’s previous decision on the illegal nature of his detention; (c) the lack of action taken on several complaints that he had lodged with the judicial authorities over two years earlier; and (d) the lack of response from the Supreme Court with respect to the appeal that he had lodged on 3 May 2019 against the judgment of the Special Criminal Court, even though the Supreme Court must hear such appeals within six months. In the light of the information provided by the author, and in the absence of a reply from the State party, the Committee considers that, in the present case, domestic remedies are not available within the meaning of article 5 (2) (b) of the Optional Protocol and that there are no obstacles to its consideration of the merits of the present communication.
To the extent that the author claims a violation of his rights under article 2 (1) of the Covenant, the Committee recalls its jurisprudence, according to which the provisions of article 2 of the Covenant lay down general obligations for States parties and they cannot give rise, when invoked separately, to a claim in a communication under the Optional Protocol.20 The Committee thus considers that the author’s claims under article 2 of the Covenant are inadmissible under article 3 of the Optional Protocol.
- Ch.H.O. v. Canada (CCPR/C/118/D/2195/2012), para. 9.4; H.E.A.K. v. Denmark (CCPR/C/114/D/2343/2014), para. 7.4; Castañeda v. Mexico (CCPR/C/108/D/2202/2012), para. 6.8; A.P. v. Ukraine (CCPR/C/105/D/1834/2008), para. 8.5; and Peirano Basso v. Uruguay (CCPR/C/100/D/1887/2009), para. 9.4. ↩
The Committee considers that the author has sufficiently substantiated the claims under article 14 (1), (3) (b), (c) and (e) and (5) of the Covenant for the purposes of admissibility. It therefore declares the communication admissible and proceeds with its consideration of the merits.
Consideration of the merits
The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
The Committee notes that the State party has not replied to the author’s claims concerning the merits of the case and recalls its jurisprudence, according to which the burden of proof should not rest solely on the author of a communication, especially given that the author and the State party do not always have the same degree of access to evidence and that often only the State party is in possession of the necessary information.21
- See, inter alia, Ammari v. Algeria (CCPR/C/112/D/2098/2011), para. 8.3; Mezine v. Algeria, para. 8.3; Berzig v. Algeria (CCPR/C/103/D/1781/2008), para. 8.3; and El Abani v. Libyan Arab Jamahiriya (CCPR/C/99/D/1640/2007), para. 7.4. ↩
The Committee takes note of the author’s claim that the proceedings before the Special Criminal Court were, in their entirety, tainted by defects likely to compromise the Court’s impartiality. The Committee also takes note of the author’s claim that the Court, in violation of article 598 of the Criminal Procedure Code, ignored his motions for the disqualification of the judges at the hearing on 7 March 2018 and of the President of the Court at the hearing on 13 March 2018, during which witnesses were questioned without the author’s or his attorneys’ being present. The Committee notes that, according to the author, the Court did not take steps to quell either the expressions of hostility directed against him by members of the public in the courtroom or the racist reactions of the jury, which was selected in a racially biased manner. At the hearing on 13 July 2018, lawyers for the civil party directed racial slurs at his attorney, but no action was taken in response by the President, who was responsible for keeping order in the courtroom and had the authority to act on the complaint made by the author’s attorney in connection with the incident. The Committee further notes the author’s claim that the Court rejected his request to testify under oath, in violation of article 366 of the Criminal Procedure Code, and that the President of the Court decided to disregard the author’s defence strategy by unfairly presuming that he had made an unsworn statement, even though he had clearly indicated at the hearing, in accordance with article 366 of the Criminal Procedure Code, that he would make his choice known through his written submissions, which would be read out at the hearing and then appended to the case file. Recalling that a court must appear to a reasonable observer to be impartial,22 the Committee considers that, in the present case, the acts of hostility directed towards the accused and the racist remarks made at the hearing, which went unpunished by the President of the Court, who was responsible for keeping order in the courtroom; the refusal to rule on the motions for the disqualification of the President and the judges of the Court; and the groundless rejection of the author’s defence strategy at the hearing are of a nature to cast doubt on the Court’s impartiality and that, consequently, such acts violate the author’s rights under article 14 (1) of the Covenant.
- Human Rights Committee, general comment No. 32 (2007), para. 21. ↩
The Committee notes the author’s claim that the refusal by the Special Criminal Court to send either him or his attorneys the documents in the case file, including the civil party’s initial complaint, prevented him from being able to properly prepare his defence. The Committee emphasizes that this procedural step is also an important element of the principle of equality of arms23 and recalls that the accused must be guaranteed access to documents and other evidence, including all materials that the prosecution plans to offer in court against the accused24 or that are exculpatory. In the present case, the Committee considers that the State party violated the author’s rights under article 14 (3) (b) of the Covenant.
The Committee notes the author’s claim that the investigation relating to his case lasted more than 18 months, although, according to Act No. 2012/011, an investigation should last no more than six months from the prosecutor’s submission of a written request for an examining magistrate to open an investigation. The Committee also notes the claim that, while the Act provides for a 30-day period between the notification of a committal order and the hearing of a case, the author waited more than five years for his case to be considered by the Special Criminal Court. The Committee notes the author’s argument that these excessive delays, which resulted in his being kept in custody for eight years, should also be considered in the light of the length of time that had elapsed since the alleged offences had occurred, the disappearance of his co-defendant and certain witnesses who could have made statements on his behalf, and the disappearance of some of the accounting records from his company, which ceased operating more than 10 years ago. The Committee recalls that, under article 14 (3) (c) of the Covenant, everyone has the right to be tried without undue delay.25 It also recalls that the reasonableness of a delay in the context of criminal proceedings must be analysed on a case-by-case basis.26 In the present case, the Committee considers the delay between the beginning of the investigation on 30 March 2011 and the trial date set – 12 October 2016, later postponed to 25 July 2017 – during which time the author remained in custody, without the possibility of release on bail and without a conviction being handed down until 28 November 2018, almost eight years after the proceedings had begun, to be unreasonable.27 In the light of the information submitted to it and in the absence of an explanation by the State party, the Committee concludes that there has been a violation of article 14 (3) (c) of the Covenant.
- See, in particular, Taright et al. v. Algeria (CCPR/C/86/D/1085/2002), para. 8.5. See also Kandem Foumbi v. Cameroon (CCPR/C/135/D/2825/2016), para. 7.3. ↩
- See, e.g., Siewpersaud et al. v. Trinidad and Tobago (CCPR/C/81/D/938/2000), para. 6.2; Sextus v. Trinidad and Tobago (CCPR/C/72/D/818/1998), para. 7.2; Yasseen and Thomas v. Guyana (CCPR/C/62/D/676/1996), para. 7.11; and Kelly v. Jamaica, communication No. 253/1987, para. 5.11. ↩
- Sextus v. Trinidad and Tobago, para. 7.2. ↩
The Committee notes the author’s claim that the examining magistrate assigned to the case did not allow him to question the three witnesses who were interviewed during the judicial inquiry, that at the hearing on 13 March 2018 the Special Criminal Court questioned witnesses without him or his attorneys being present and, furthermore, that the Court did not allow him to call witnesses in his defence during the trial. Moreover, the witnesses for the prosecution attended all the hearings and nothing was done to stop them from communicating with each other, which meant that they could find out about the substance of the proceedings, confer and adapt their testimony to the circumstances. The Committee recalls that article 14 (3) (e) guarantees the right of accused persons to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them and that the ability to do so is an essential element of the principle of equality of arms.28 In the absence of any explanation by the State party, the Committee concludes that there has been a violation of article 14 (3) (e) of the Covenant.
- Human Rights Committee, general comment No. 32 (2007), para. 39. ↩
The Committee takes note of the author’s claims that, to have a judgment set aside, the Public Prosecution Service may lodge an appeal on a point of law or fact, but an appellate judge cannot examine points of fact in reviewing the finding of the author’s guilt, even though the facts on which his conviction at first instance was based were established using improperly gathered evidence, and that he is therefore unable to exercise his right to have his conviction reviewed by a higher tribunal, in violation of article 14 (5) of the Covenant. The Committee recalls in this regard that a review that is limited to the formal or legal aspects of the conviction without any consideration whatsoever of the facts is not sufficient under the Covenant.29 In the present case, the Committee considers that the author’s inability to have his conviction reviewed by the Supreme Court on points of fact violates article 14 (5) of the Covenant.
- Ibid., para. 48. See also Jaddoe v. Netherlands (CCPR/C/135/D/3256/2018), para. 11.3; Alba Cabriada v. Spain (CCPR/C/82/D/1101/2002), para. 7.3; Sineiro Fernández v. Spain (CCPR/C/78/D/1007/2001), para. 7; Gelazauskas v. Lithuania (CCPR/C/77/D/836/1998), para. 7.2; and Gómez Vázquez v. Spain (CCPR/C/69/D/701/1996), para. 11.1. ↩
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State party of the author’s rights under article 14 (1), (3) (b), (c) and (e) and (5) of the Covenant.
Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, to take appropriate steps to: (a) provide the author with adequate reparation for the harm caused; (b) allow a higher tribunal to review the proceedings brought against the author in their entirety, providing for all the procedural guarantees set out in article 14 of the Covenant; and (c) ensure that the author is released immediately, pending a ruling on his case by a higher tribunal. The State party is also under an obligation to prevent similar violations from occurring in the future.
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 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 when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the present Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party.