Hamidou Yaya Marafa v. Cameroon

As part of an effort to combat corruption a series of investigations referred to as ‘Operation Epervier’ were initiated in the State Party in 2004. This was followed in 2006 with the creation of a National Anti-Corruption Agency and the establishment in 2012 of a Special Criminal Court. It resulted in the detention and conviction of dozens of former government officials including a former prime minister, two former secretaries-general in the Office of the President, and several directors and officers of major state corporations. The author notes that observers questioned whether the investigations were launched to fight corruption or whether they were a means to neutralize political rivals.

At the time of the anti-corruption investigations the author was a member of the political bureau of the ruling Cameroon Peoples Democratic Movement party (CPDM) and he had held several senior positions in the party for close to 20 years, including at a ministerial level. He left government in December 2011 during a cabinet reshuffle but still retained his membership in the political bureau of the CPDM.

The author notes that he received a summons to appear in the chambers of an Examining Magistrate on 16 April 2012 for a deposition in a matter concerning other persons who had been indicted on charges of misappropriation of public funds. The investigation was in relation to the purchase of an aircraft in 2001, which was to be used for the President’s travels (referred to as the so-called BBJ-2 affair). At the time of the alleged offence, the author was the Secretary-General of the Office of the President. The author presented himself in the Examining Magistrate’s chambers on the appointed date but declined to be deposed by the Examining Magistrate, whom he had requested should be recused from the investigation on grounds that the Magistrate was biased. He notes that having refused to be deposed by the Magistrate, the preliminary investigation should have been suspended until the recusal issue was resolved, in accordance with article 598 of the Criminal Procedure Code. Instead, the author was arrested on the spot and remanded into custody. He was given no reasons for his arrest.

On 21-22 September 2012, the author was convicted by the High Court of Mfoundi for misappropriation of 29 million USD in public funds and sentenced to 25 years imprisonment. He was also ordered to, jointly with other co-defendants, repay the 29 million USD it was alleged had been misappropriated. The author notes that the purchase of the aircraft had been made through a company based in the United States, which subsequently, before the delivery of the aircraft, declared bankruptcy. He notes that the government was however indemnified for the funds paid for the aircraft during the bankruptcy proceedings. Additionally, no alleged misappropriation of funds was found by a forensic, certified public accountant appointed by a U.S. bankruptcy trustee to track such activity, nor was any payment traced to the author’s bank accounts or linked to any other asset.

The author appealed the High Court judgment to the Supreme Court to challenge the lawfulness of his arrest, detention and sentence. He also petitioned the Court for provisional release pending the resolution of his appeal, something he states he was unable to do at the trial stage. The request was however rejected by the Court on 26 November 2013. The Supreme Court upheld the guilty verdict on 18 May 2016 but reduced the sentence to 20 years imprisonment. The author notes that it took four years for the Supreme Court to consider his appeal. Oral hearings were held on 17 and 18 May 2016. However, the author discovered later that the Court had already, on 3 May 2016, reached a decision on his appeal, two weeks before hearing the arguments on the grounds of appeal. The author states that the judgment was based on distortions of the trial record, flawed legal reasoning and discredited jurisprudence, underscoring that his detention and conviction were political in nature.

In the meantime, in June 2015, the author submitted a complaint before the Working Group on Arbitrary Detention, alleging that his arrest, detention and conviction were politically motivated and in violation of his right to a fair trial. On 27 April 2016, the Working Group found that his detention was arbitrary. The WGAD called on the State Party to terminate his detention and provide him with an appropriate remedy. The author notes that the State Party has not complied with the recommendation and he remains in prison.

The author submits that he has exhausted all available domestic remedies. He argues that the State Party does not have a forum in which victims of unlawful detention can exercise their right to an effective remedy. He notes that in theory, there exists a mechanism for compensation under articles 236 and 237 of the Criminal Procedure Code under which a claim for compensation may be submitted to a compensation and reparations commission, or by filing an appeal to the administrative court. The author however states that this avenue only exists in theory as the commission was not operational at the time of his sentencing and submission of complaint, and as according to the consistent jurisprudence of the Supreme Court administrative courts are not competent to hear cases involving decisions handed down during judicial proceedings or claims for compensation for injury attributable to the functioning of the judicial system. In this connection the author notes that although the compensation and reparations commission was created in 2005, its members were only formally installed in August 2018 and had yet, at the time of the submission of his complaint, to meet in session. He argues that he therefore did not have recourse to any available effective domestic remedy for the violations of his rights under the Covenant.

On 8 February 2022, following the submission of his initial complaint, the author submitted a request for interim measures concerning his state of health and especially his deteriorating sight. He notes that he suffers from cardiac and respiratory problems, declining vision, and a general deterioration in his health because of the deplorable conditions of detention. The author further notes that following the decision by the Working Group of Arbitrary Detention in April 2016 in which it had urged the State Party to take diligent steps to address his failing eyesight, the State Party had complied and had flown in an ophthalmologist from the Centre Hospitalier National d’Ophtamologie des Quinze-Vingts in Paris, France to operate on his left eye in 2016. The right eye was operated on in 2017 and both eyes in 2021. He however states that as a result of the harsh detention conditions he has, since September 2021, lost sight in his right eye and is at risk of losing the 20% sight capacity remaining in his left eye.

The author claims that he was deprived of his liberty in a manner not in accordance with the law. He notes that the Criminal Procedure Code sets out the requirements for the issuance of a remand warrant for purposes of arrest and detention consistent with article 9 (1) of the Covenant. He argues that the summons issued by the Examining Magistrate in his case was the wrong instrument for arresting and detaining an accused under domestic legislation. In this connection he notes that Section 218 (2) of the Criminal Procedure Code stipulates that before the issuance of a remand warrant, the Examining Magistrate must charge the defendant. The author claims that this stipulation was not adhered to in his case as the 16 April 2012 remand warrant did not charge him with the commission of any crime as required under section 218 (2) of the Criminal Procedure Code. The author further notes that the very same section prescribes the issuance of a remand warrant only when the offense the defendant is charged with is punishable with a loss of liberty. He argues that without any specific charges levelled against him, it would have been difficult to ascertain whether he was facing an offense that was punishable with a loss of liberty. The author finally notes that Section 218 (1) of the Criminal Procedure Code recognizes remand in custody as an exceptional measure which can only be undertaken to preserve evidence, maintain public order, protect life and property, or ensure the appearance of an accused.

The author claims that he was not informed of the reason for his arrest at the time of his arrest or of the charges against him, nor was he apprised of his due process rights such as the right to silence and privilege against self-incrimination. He was provided with no reasons for his arrest until three months after the arrest, that is on 16 July 2012, during his arraignment before the High Court.

The author claims that he was unable to challenge his arrest and detention at the trial stage. He notes that under the Criminal Procedure Code, appeals in cases of corruption charges must be filed directly to the Judicial Chamber of the Supreme Court. After his conviction the author filed an appeal to this chamber to challenge the lawfulness of his arrest, detention and sentence. Under domestic law the appellate court was under an obligation to rule on his appeal within six months, however it took it four years to rule on the appeal, whilst his petition for release from detention pending the appeal was rejected by the Court.

The author claims that the State Party’s failure to establish a legal framework for compensating victims of unlawful detention, amounted to a violation of his rights under article 9 (5), read alone and in conjunction with article 2 (2). He notes that articles 236 and 237 of the Criminal Procedure Code in theory provides for a compensation scheme. He however claims that the compensation scheme does not exist in practice. He further argues that as per the wording of articles 236 and 237 of the Criminal Procedure Code, the compensation framework applies only to victims of wrongful police detention or those in pre-trial detention but does not address post-trial detention.

The author claims that the courts examining his case lacked independence and impartiality. He claims that the trial court presiding judge was predisposed to decide the case on factors “extraneous to the law and his conscience” and that the presiding judge played an active role in drafting the indictment against him. He further claims that two prosecutors who had processed his case at the indictment stage, were subsequently promoted as judges to the Supreme Court Judicial Chamber and did not recuse themselves from examining his appeal, thereby failing to respect the principle of impartiality. He claims that one of these judges, in his capacity as the official in charge of prosecution at the time of the first instance hearings in his case, took part in pre-trial sessions in June 2012, during which instructions were given to the Examining Magistrate on how to draft the order referring the author to trial in the High Court. The second promoted judge had in his role as Attorney-General at the Court of Appeals for the Center Region supervised the indictment against the author.

The author further claims that his right to a fair public hearing was violated as he was tried in a courtroom that looked and sounded like a military barracks with an audience composed, in the main, of soldiers and local and national police, the majority of whom wore masks and were armed with assault rifles. The public was subjected to an arbitrary system of selecting who should be allowed to enter the courtroom.

The author claims a violation of his rights under article 14 (3) (b) stating that he was denied access to documents in the possession of the prosecution and material to his defence. He claims that State Party authorities failed to provide him access to the case file containing depositions of witnesses and evidence gathered during the preliminary investigation, despite repeated oral and written requests by his counsel. Additionally, the author claims that he was denied access to exculpatory evidence gathered during the preliminary investigation. He notes that a judicial police report as well as a report prepared by a magistrate of the Legal Department both concluded that no evidence had been found incriminating him in the allegedly missing aircraft funds for which he was convicted. These documents were however withheld from the author during the trial.

The author further claims that he was not given adequate time to prepare his defence. It was only on 16 July 2012, in the course of his arraignment to enter a plea, that he was informed that his trial would begin the following week, on 24 July 2012. The presiding judge also informed him that the record of the preliminary investigation was ready, and copies would immediately be made available to his defence team. However, it was not until the late afternoon on 19 July 2012 that an incomplete case file was delivered to him.

The author notes that Law No. 2012/011 on the creation of a special judicial chamber of the Supreme Court to examine corruption cases, directs the Supreme Court to review an appeal and render its judgment within six months of the appeal. He notes that, in his case however, it took the Court over four years to render a judgment in his case, which he claims amounts to a violation of his rights under article 14 (3) (c) of the Covenant.

The author claims that a material witness, a lawyer retained by the State Party in the bankruptcy proceedings related to the purchase of the aircraft and who had signed a settlement agreement on behalf of the government, refused to appear as a witness in the case on the grounds that it would be in breach of attorney code of ethics. The author notes that the provisions of the Criminal Procedure Code would have allowed the trial court to subpoena the witness, it however chose not to do so. He argues that bearing in mind the severity of the charges against him, the court’s failure to hear this witness was in violation of his rights under article 14 (3) (e). The author further states that one year after his conviction this lawyer would publicly admit in a press conference that the settlement agreement had put paid to the allegedly missing aircraft funds and that he had confirmed that the State Party had been fully indemnified in the bankruptcy proceedings.

The author argues that article 11 (2) and (3) of Law No. 2012/011 of 16 July 2012, established a procedure for appeals which tilts heavily in favour of the prosecution as the rules limit the defendant to raising only errors of law in an appeal while the prosecution is allowed to raise points of law and newly discovered facts. The author thus argues that his right to have his conviction and sentence reviewed by a higher tribunal was violated.

The author claims that on 3 May 2016 the Supreme Court had already reached and drafted a decision on his appeal, two weeks before the appeal oral hearings in his case were held on 17 and 18 May 2016, in violation of his rights under article 14 (5) of the Covenant.

In addition to his claims under articles 9 and 14, the author further claims that the State Party violated its general obligation under article 2 (1) of the Covenant, by failing to ensure his right to be free from arbitrary arrest or detention and his right to a fair trial. He further claims that the failure by the State Party to implement the recommendations of the WGAD in its opinion, i.e. to terminate his detention and compensate him for the harm suffered, amounted to a violation of his rights under article 2 (3) of the Covenant.

On 10 June 2025, the author made a further submission in the communication. He submits that in addition to the claims invoked in his initial complaint, his conditions of his detention also amount to a violation of his rights under article 7 of the Covenant. He notes that following the submission of his initial complaint, gradually, due to a lack of access to adequate treatment, his glaucoma became resistant to all available therapies. He notes that the medical practice responsible for his care stated that the therapeutic resources needed to halt the progression of the glaucoma were not available in the State Party and recommended his referral to a hospital in France. The author repeatedly requested medical evacuations from the Office of the President, his requests however remained unanswered. The author argues that by depriving him of adequate medical care the State Party has subjected him to torture or inhuman and degrading treatment with imminent and irreparable consequences, namely the imminent risk of total blindness and the risk of enucleation of the eyeballs.

The author notes that following his arrest he was placed in pre-trial detention at the Kondengui Maximum Central Prison in Yaoundé, then, as of 25 May 2012, transferred to a military prison nominally attached to Kondengui but located on the premises of the Secretariat of State for Defence (SED), under the authority of the Minister of Defence. He remains detained there to this day. In April 2022, his glaucoma continued to deteriorate, and doctors responsible for his ophthalmological care issued a medical certificate noting, “the almost certain risk of blindness if nothing is done as soon as possible”. In May, and again in July 2023, he unsuccessfully requested the Office of the President to grant him medical evacuation and, upon his return, the possibility of serving his sentence under house arrest

Concerning the admissibility of claims submitted under article 7 of the Covenant, the author notes the Committee’s jurisprudence that claims must be raised in the initial complaint, unless new circumstances arise. The author argues that in his case the deterioration of his medical condition occurred after the submission of his initial complaint and has continued to worsen with time, due to the State Party’s failure to provide him with adequate medical care. The author further argues that there are no effective remedies available to him in the State Party due to the lack of an independent and impartial judiciary. He argues that the impossibility to have any complaint of ill-treatment investigated renders the protection that domestic remedies could offer illusory.

Concerning the merits of his claims under article 7 the author states that the conditions of detention at the SED facility where he is held are notoriously inhumane. He notes that it is a facility, under the authority of the military, whose function as a prison was only officially recognised in May 2012, in order to retroactively legalise the transfer there in 1997 of a former Secretary-General of the Office of the President, and to allow the allegedly legal transfer of the author, amongst others. Only a small number of people considered sensitive by the authorities are detained at the SED facility and kept under constant military surveillance.

The author argues that his past and present conditions of detention amount to torture and cruel, inhuman and degrading treatment. Upon his incarceration in 2012 and for months thereafter, he was subjected to a series of deprivations, resulting in the deterioration of his health, including: (i) deliberate deprivation of a healthy environment, as his cell, measuring only 10 m2, had no windows or electricity and was extremely damp. These unsanitary conditions, particularly the humidity, caused the author to suffer from a series of chronic respiratory infections; (ii) the deliberate deprivation of both natural and artificial light. He notes that as his cell lacked windows or electricity, this resulted in a drastic decline in his eyesight, which was already failing at the time. He emphasizes that it is medically established that darkness is harmful to people suffering from glaucoma, who find it difficult to adapt to it and worsens the condition as it can trigger acute angle-closure glaucoma, with extremely painful attacks due to increased intraocular pressure. Although the harsh detention conditions did not change, he nevertheless was able to install an electrical socket at his own expense. He is only allowed to go out into a small courtyard, which is also accessed by four other inmates.

The author claims that in addition to the inadequate conditions of detention he has also been denied access to adequate medical care and treatment in violation of his rights under article 7. Specifically, the author argues that he has regularly been denied access to his medical file, which was confiscated by the SED in 2019 and that he has been denied access to adequate ophthalmological care, even though State Party authorities were aware of his ophthalmological conditions as early as 2011. Although he was able to undergo cataract surgery, the essential post-operative check-ups were gradually spaced out and then simply postponed indefinitely. In the absence of regular follow-up, treatments that proved harmful to the author and to which he developed allergies therefore continued. This lack of access to care resulted in the author’s glaucoma becoming resistant to drug treatment, and no concrete measures were taken to adapt the care, even though a team of foreign doctors offered to organise it. In this connection he further states that other detainees in the State Party have been granted medical evacuation organised by the state authorities.

The author further claims that he has been denied access to adequate general medical care. In addition, the prison administration has repeatedly found excuses to delay his transfer when he needed to undergo specific medical examinations. He argues that even when treatment is provided, it is thus systematically delayed and therefore inadequate. Similarly, he notes that he has been prevented from attending his dental follow-up appointments and must therefore make do with palliative measures to relieve the pain. The author also claims that he was not provided with appropriate treatment during the Covid-19 epidemic. During the epidemic he submitted a request to the Office of the President for medical evacuation or, failing that, for his conditions of detention to be adjusted, as he was 67 years old at the time and particularly vulnerable due to chronic lung problems accompanied by respiratory failure. When he contracted the virus in April 2021, a few days after his cellmate, who had not been placed in clinical isolation despite testing positive, the author was unable, unlike his cellmate, to receive hospital treatment. It was only after intense media coverage that he was finally admitted to Yaoundé Central Hospital. The author finally claims that his medical confidentiality has been breached. When he is able to consult with doctors, this is done under military escort which he argues contravenes the requirements of confidentiality and dignity.

The author further claims that he has been deprived of social contact in detention in violation of his rights under article 7 of the Covenant. He notes that the SED facility is referred to as the “secret prison”, expressly designed to keep detainees in complete isolation and under constant surveillance, subjecting them to a dehumanising routine and limiting visits to very strict time slots. To date, he is still subject to special restrictions on visits. Every two months, he must submit a list of potential visitors (including his lawyers) to the administration for approval, with the provision that this list must be renewed each time. Finally, he is deprived of any means of incoming or outgoing correspondence with the outside world, as he is not allowed to keep any paper, pens or any other communication materials in his cell.

On 10 October 2025, the author submitted a further claim under article 14 of the Covenant which he notes is based on new circumstances. He states that he has regularly been summoned by the SED military command to be notified of writs relating to ongoing domestic proceedings, while at the same time being prevented from communicating freely with his counsel. He notes that his counsel, who has been representing him since 2012, has recently been denied entry to the SED on several occasions without valid reason.

On 15 February 2022 the State Party was requested to submit its observations on the admissibility and merits of the communication. Reminders to the State Party to submit the observations were sent on 14 March and 10 July 2023, 10 July and 4 November 2025. The Committee regrets the failure of the State Party to respond to these requests in a timely manner and to provide any information with regard to the admissibility and merits of the author’s claims within said deadlines. The Committee recalls that article 4 (2) of the Optional Protocol implicitly obliges States Parties to examine in good faith all allegations brought against them and to make available to the Committee all the information at their disposal. In the absence of a reply from the State Party, due weight must be given to the author’s allegations, to the extent that they are substantiated.

In a note verbale dated 15 February 2022, pursuant to rule 94 of its rules of procedure, the Committee, requested the State Party to provide the author with immediate access to adequate and specialized medical care that may be required to preserve his sight. This request was reiterated to the State Party on 15 March and 22 June 2022, 10 July 2023 and 10 July 2025.

The Committee notes that the adoption of interim measures pursuant to rule 94 of its rules of procedure, in accordance with article 1 of the Optional Protocol, is vital to the role entrusted to the Committee under that article. Failure to respect the interim measure requested by the Committee with a view to preventing irreparable harm undermines the protection of the rights enshrined in the Covenant.

As indicated in paragraph 19 of the Committee’s general comment No. 33 (2008) on the obligations of States Parties under the Optional Protocol, failure to implement interim measures is incompatible with the obligation to respect in good faith the procedure of individual communications established under the Optional Protocol. The Committee is therefore of the view that, by failing to respect the request for interim measures – to provide the author with immediate access to adequate and specialized medical care while his case was pending before the Committee – the State Party failed in its obligations under article 1 of the Optional Protocol.

Before considering any claims 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.

As required, under article 5 (2) (a), of the Optional Protocol, the Committee must ascertain that the same matter is not being examined under another procedure of international investigation or settlement. The Committee notes that in its Opinion No. 22/2016, adopted on 27 April 2016, the Working Group on Arbitrary Detention found the author’s detention to be arbitrary. The Committee recalls that article 5 (2) (a) does not precludes it from considering communications on cases previously dealt with by another international investigation or settlement body, even when the body has adopted a decision on the merits, unless the State Party has made a reservation explicitly prohibiting successive appeals, which is not the case here. As the Working Group had completed its examination of the case before the present communication was considered by the Committee, there is no obstacle to the admissibility of the present communication under that provision.

The Committee notes the author’s submission that he has exhausted all available domestic remedies. It notes the author’s information that following his conviction by the High Court he challenged the lawfulness of his arrest, detention and sentence before the Supreme Court. The Committee further notes his argument that the mechanism for compensation for victims of unlawful arrest and detention, as provided for under articles 236 and 237 of the Criminal Procedure Code, was not operational at the time of the submission of his complaint. The Committee finally notes the author’s submission that as concerns his claims under article 7 of the Covenant there are no effective remedies available to him in the State Party due to the lack of an independent and impartial judiciary. The Committee notes that the State Party has not responded to the author’s claims nor provided any information on any domestic remedy that would have been available to the author in the present case. Taking the above considerations into account the Committee thus finds that it is not precluded by article 5 (2) (b) of the Optional Protocol from considering the present communication.

The Committee notes the author’s claims that the State Party violated its general obligation under article 2 (1) and 2 (3) of the Covenant, by failing to ensure his right to be free from arbitrary arrest or detention and his right to a fair trial as well as by failing to implement the recommendations of the WGAD in opinion No. 22/2016. The Committee recalls its jurisprudence according to which the provisions of article 2 of the Covenant set out general obligations for States Parties and do not give rise, when invoked separately, to claims in a communication under the Optional Protocol. The Committee therefore declares the claims under article 2 (1) and 2 (3) of the Covenant to be inadmissible ratione materiae under article 3 of the Optional Protocol.

The Committee further notes the author’s claims that the State Party’s failure to establish a legal framework for compensating victims of unlawful detention, amounted to a violation of his rights under article 9 (5), read alone and in conjunction with article 2 (2) of the Covenant. The Committee reiterates that article 2 (2) cannot be invoked as a claim in a communication under the Optional Protocol in conjunction with other provisions of the Covenant, except when the failure by the State Party to observe its obligations under article 2 is the proximate cause of a distinct violation of the Covenant directly affecting the individual claiming to be a victim. The Committee notes, however, that the author has already alleged a violation of his rights under article 9 (5), resulting from the interpretation and application of the existing laws of the State Party, and the Committee does not consider that an examination of whether the State Party also violated its general obligations under article 2 (2) of the Covenant, read in conjunction with article 9 (5), is distinct from the examination of the violation of the author’s rights under article 9 (5). The Committee therefore considers that the author’s claims in this regard are incompatible with article 2 (2) of the Covenant, and inadmissible under article 3 of the Optional Protocol.

The Committee notes that in a further submission dated 10 June 2025, the author raised claims under article 7 of the Covenant that he did not explicitly invoke in his initial communication. The Committee recalls its jurisprudence in which it stated that authors must raise all of their claims in their initial submission, before the State Party is asked to provide its observations on admissibility and the merits of the communication, unless the authors can demonstrate why they were unable to raise all of their claims simultaneously. In the present case, the Committee notes the author’s argument that the deterioration of his medical condition occurred after the submission of his initial complaint in 2020 and has continued to worsen with time due to the State Party’s failure to provide him with adequate medical care. The Committee additionally notes that the author’s request for interim measures, which was submitted prior to the State Party being asked to provide its observations on admissibility and the merits of the communication, raised claims regarding his deteriorating health and lack of access to adequate medical care. The Committee thus finds that the author has demonstrated why the more detailed information on his deteriorating health could not have been submitted in the initial submission and finds that it is thus not precluded by article 3 of the Optional Protocol from considering said claims.

The Committee however notes that in addition to the claims raised under article 7 concerning his deteriorating health condition, the author has also raised claims of having been deprived of social contact and means of correspondence, strict limits on visitation and constant surveillance, while in detention. The Committee observes that these claims date back as far as to the author’s initial detention in 2012 and were not raised in his complaint before the Committee in 2020. It notes that the author has not indicated why he could not have raised said claims in his initial submission and considers that said claims constitute an abuse of the right of submission and are therefore inadmissible under article 3 of the Optional Protocol.

The Committee notes that on 10 October 2025, the author submitted a further claim under article 14 (3) (b) arguing that he was being prevented from communicating freely with his counsel concerning ongoing domestic investigations. The Committee however notes that the author has not provided any further specific information or argumentation in support of said claims, and it therefore finds the claim to be insufficiently substantiated for the purposes of admissibility and inadmissible under article 2 of the Optional Protocol.

The Committee however considers that the author has sufficiently substantiated the remainder of his claims. Accordingly, the Committee declares the author’s claims under articles 7, 9 (1-2), 9 (4-5), 14 (1), 14 (3) (b-c), 14 (e) and 14 (5) of the Covenant admissible and proceeds with its 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. Protocol. The Committee notes that, in failing to respond to a communication, or responding incompletely, a State that is the object of a communication puts itself at a disadvantage because the Committee is then compelled to consider the communication in the absence of full information relating to the communication. In the absence of any explanations from the State Party in respect of the merits, due weight must be given to the author’s allegations to the extent that they have been sufficiently substantiated (see para. 5.1 above).

The Committee notes the author’s claims that he was deprived of his liberty in a manner not in accordance with domestic law (see para. 3.1). It also notes the author’s claim that no grounds were provided for his remand in custody. The Committee recalls that deprivation of liberty is permissible only when it takes place on such grounds and in accordance with such procedure as are established by domestic law and when this is not arbitrary. In addition, the Committee recalls that remand in custody on criminal charges must be reasonable and necessary in all circumstances. In the absence of a response from the State Party, the Committee considers that due weight must be given to the author’s allegations. Taking the above into account, the Committee finds that the facts described, amount to a violation of the author’s rights under article 9 (1) of the Covenant.

The Committee notes the author’s claims that he was not informed of the reason for his arrest at the time of his arrest or of the charges against him (see paras. 3.2-3). In this connection the Committee recalls that one major purpose of requiring that all arrested persons be informed of the reasons for the arrest is to enable them to seek release if they believe that the reasons given are invalid or unfounded. The reasons must include not only the general legal basis of the arrest, but also enough factual specifics to indicate the substance of the complaint, such as the wrongful act and the identity of an alleged victim. The Committee further recalls that the right to judicial review under article 9 (4) applies in principle from the moment of arrest and that any substantial waiting period before a detainee can bring a first challenge to detention is impermissible. In the absence of a response from the State Party, the Committee gives due weight to the author’s claims and finds that the author’s rights under article 9 (2) and (4) were violated.

The Committee notes the author’s claims that his rights under article 9 (5) were violated as the State Party has failed to establish a legal framework for compensation for unlawful arrest or detention (see para. 3.4). The Committee recalls that article 9 (5) obliges States Parties to establish the legal framework within which compensation can be afforded to victims, as a matter of enforceable right and not as a matter of grace or discretion. The remedy must not exist merely in theory but must operate effectively and payment must be made within a reasonable period of time. In the absence of a response by the State Party as to the author’s claims, the Committee considers that due weight must be given to the author’s allegations. Accordingly, the Committee concludes that, in the circumstances of the present case, the author’s rights under article 9 (5) of the Covenant were violated.

The Committee notes the author’s claims that the courts examining his case lacked independence and impartiality (see para. 3.5). The Committee recalls that the requirement of impartiality under article 14 (1) has two aspects. First, judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a reasonable observer to be impartial. In the present case, and in the absence of a response from the State Party as to the author’s claims, the Committee gives dues weight to the author’s allegation and thus considers that the failure by the two judges in question to recuse themselves from examining the author’s appeal, amounted to a violation of his rights under article 14 (1) of the Covenant.

The Committee further notes the author’s claims that his right to a fair public hearing was violated (see para. 3.6). The Committee recalls that the notion of fair trial includes the guarantee of a fair and public hearing. Fairness of proceedings entails the absence of any direct or indirect influence, pressure or intimidation or intrusion from whatever side and for whatever motive. A hearing is not fair if, for instance, the defendant in criminal proceedings is faced with the expression of a hostile attitude from the public or support for one party in the courtroom that is tolerated by the court, thereby impinging on the right to defence, or is exposed to other manifestations of hostility with similar effects. Courts must make information regarding the time and venue of the oral hearings available to the public and provide for adequate facilities for the attendance of interested members of the public, within reasonable limits, taking into account, inter alia, the potential interest in the case and the duration of the oral hearing. In the absence of a response by the State Party as to the author’s claims, the Committee gives due weight to the author’s allegations and concludes that the circumstances described amount to a violation of the author’s rights to fair and public hearing under article 14 (1) of the Covenant.

The Committee notes the author’s claims that he was denied access to documents in the possession of the prosecution and material to his defence, including the statements of witnesses, as well as a police report and a report prepared by a magistrate of the Legal Department which both concluded that no evidence had been found incriminating him in the alleged misappropriation of public funds. The Committee recalls that the requirement under article 14 (3) (b) that an accused must have adequate facilities for the preparation of his or her defence must include access to documents and other evidence and that this access must include all materials that the prosecution plans to offer in court against the accused or that are exculpatory. The Committee further notes the author’s claim that he was not given adequate time to prepare his defence (see para. 3.8). In the absence of any response by the State Party, the Committee gives due weight to the author’s claims and finds that the facts described, amount to a violation of his rights under article 14 (3) (b) of the Covenant

The Committee notes the author’s claim that his right to be tried without undue delay was violated as it took the Supreme Court four years to review his appeal and render its judgment. It further notes the author’s information that he was detained during the appeals stage and his information that under domestic law the Court was under an obligation to review his appeal within six months of its filing. The Committee recalls that the right of the accused to be tried without undue delay is not only designed to avoid keeping persons too long in a state of uncertainty about their fate and, if held in detention during the period of the trial, to ensure that such deprivation of liberty does not last longer than necessary in the circumstances of the specific case, but also to serve the interests of justice. What is reasonable has to be assessed in the circumstances of each case, taking into account mainly the complexity of the case, the conduct of the accused, and the manner in which the matter was dealt with by the administrative and judicial authorities. In cases where the accused are denied bail by the court, they must be tried as expeditiously as possible. The Committee further recalls that this guarantee relates not only to the time between the formal charging of the accused and the time by which a trial should commence, but also the time until the final judgement on appeal. All stages, whether in first instance or on appeal must take place without undue delay. In the absence of any further explanation by the State Party in the present case regarding the length of the appeals proceedings considering the author’s information on the stipulated timeframes under domestic legislation, the Committee gives due weight to the author’s claims and finds that the facts described, amount to a violation of the author’s rights under article 14 (3) (c) of the Covenant.

The Committee notes the author’s claim that the failure by the trial court to subpoena a material witness amounted to a violation of his rights under article 14 (3) (e). 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. It recalls, however, that the right of the accused to examine witnesses on his or her own behalf is not absolute. The accused only has the right to have those witnesses admitted who are relevant for the defence and the right to be given a proper opportunity to question and challenge the witnesses testifying against him or her at some stage of the proceedings. In the absence of any further explanation by the State Party as to the author’s claim in this regard, the Committee gives due weight to the author’s claims and finds that in the circumstances of the case, the facts described amount to a violation of the author’s rights under article 14 (3) (e) of the Covenant.

The Committee notes the author’s claim that his right to have his conviction and sentence reviewed by a higher tribunal was violated (see paras. 3.11-12). The Committee recalls that although a factual retrial is not required under the Covenant, a procedure enabling a substantial and effective review of the conviction is, and the review should make possible an assessment of the evidence and facts, not simply a reconsideration of points of law. 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. The Committee further notes that the State Party has not provided any response to the author’s claim that the decision on his appeal was reached by the appellant court, before the oral hearing on the grounds of appeal. In the absence of a response by the State Party the Committee thus gives due weight to the author’s claims and finds that the circumstances described amount to a violation of his rights under article 14 (5) of the Covenant.

The Committee notes the author’s claims that he has been denied adequate medical care in detention that has irreparably damaged his physical and mental health with imminent and irreparable consequences, namely the imminent risk of total blindness and the risk of enucleation. Specifically, the Committee notes his claims that the deliberate deprivation of both natural and artificial light in his cell resulted in a drastic decline in his eyesight, due to his glaucoma. The Committee further notes the author’s claims that in addition he has also systematically been denied access to adequate generalised and specialised medical care and treatment. Specifically, it notes his claims that he has regularly been denied access to his medical file, that his medical confidentiality has been breached, that he has been denied access to adequate ophthalmological care and regular follow-up treatment which resulted in his glaucoma becoming resistant to drug treatment. The Committee notes the author’s information that he is now practically blind due to not having received the appropriate care, and that he continues to suffer acute pain due to intraocular pressure and is at real and imminent risk of enucleation.

The Committee notes that a State Party is under an obligation to observe certain minimum standards of detention, which include the provision of medical care and treatment for sick prisoners, in accordance with rule 24 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). In the present case the Committee notes the author’s claims, as supported by medical records, that he was not able to receive medical treatment adequate to his condition, and that as a result he is in acute pain and with risk of total blindness and enucleation. It further notes that despite having knowledge of the lack of specialised care in the State Party adequate to the author’s needs the State Paty authorities denied the author’s request to organise such treatment abroad, despite this having been authorized and arranged for other detainees in the State Party in similar position to the author. In the absence of any observations by the State Party on the author’s claims regarding his lack of access to adequate medical care in detention the Committee considers that due weight must be given to the author’s claims. Accordingly, the Committee concludes that in the circumstances of the present case, the facts as submitted disclose a violation of the author’s rights under article 7 of the Covenant.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation of the author’s rights under articles 7, 9 (1-2) and (4-5), 14 (1), 14 (3) (b-c), 14 (e) and 14 (5) of the Covenant and of article 1 of the Optional Protocol.

In accordance with 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: (a) ensure that the author is immediately released from detention; and (b) to provide the author with adequate compensation, including with regard to the impact of the detention on his physical and mental health. The State Party is also under an obligation to take steps 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 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 Committee’s Views. The State Party is also requested to publish the present Views and to have them widely disseminated in the languages of the State Party.