The communication was initially submitted to the Human RiQht8 Ca-mittee by two BelQian lawyers, Eric VerQauwen and Robert-Charlea Goffin (initial letter of ] March :98]) on behalf of their 1] :~airian clients, Messrs. NQalllla, Tahise, Makanda, Kapita, Kyunqu, Lumbu, Kananll, Kasala, Lusanqa, Oia, NQoy and Kiba8sa, former Zairian members of parliament, and Mr. Birindwa, a r.airian bU8ine.sman. At the time of the initial lIubmi88ion (] March 198]), alII] individuals ~.re detained in various prisons in Zaire and we .• alleqedlv unable to orollert thftir case. to the Commi ttlUt themselves. All l!tvil'lence of th,tti r llIuthori ty to act, the bwyer. furnished a cooy of a letter, daterl 2 September lQ82, Aion~ by the wive8 of the 12 former oarliamentarians, reque8tinQ them to submit the caRes of their hI Bbands to the Human Riqhts Committee. The lawyerll' submiBsions further Anow that they also representc~ the thirteenth alleqed victim, the hUlline8sman Mr. Birinriwa, in connection with the 8tePR taken to eXhaust remerlies before the domestic court", prior to the submi8sion of the communication to the Human R'~hts Committee under Ule Optional Protocol to the Internationllll Covenant on Civil and Political Riqht'1. -l~l-
DurinG Pebruary 1982, while the former parliamentarians were neqotiatina with representatives of the President of Zaire concerninQ the establishment of a new political party, the Union pour la democratie et le Droqres social (UDPS), seven of them were arrested and subseauently all 12 were brouqht to trial before the State Security COurt on charges of plottina to overthrow the teqime and plannina to establish a political party. The businessman, Mr. Birindwa, was also brought to trial before the State Security Court on charQes of havina secreted documents concerning the establishment of UDPS. .
The trial of the 13 accused took place on 28 June 1982. On 1 July 1982, they were sentenced to 15 years' imprisonment, with the exception of Mr. Birindwa, who was sentenced to 5 years' imprisonment. The two lawyers, who assisted their defence at the trial, alleqed that due process of law had not been observed by the maaistrates (three accused were not heard at the pte-trial staGe, no summonses were served on two otbers, the trial was not held in public, etc.).
On 7 July 1982, the lawyers filed appeals with the Supreme Court of Justice (Pgurvoi,en cassation) on behalf of their clients against the judqement of 1 July 1982. By a decision of 26 OCtober 1982 (ordonnance de classement sans suite), the Supreme Court declined to consider the appeals, ~ause the court fees had not been paid. In this connection, the lawyers point out that they had taken steps to ensure that the requirement of payaent of the court fees be complied with. They state that, since their clients were scattered amonq several detention centres and it was impossible to communicate with them, a Zairian lawyer, Maitre Mukendi, bltonnier of Kinshasa, was asked to carry out the necessarv formalities for depositinq the fees. Bya letter dated 15 September 1982, they urqed Maitre Nukendi to Contact Mrs. Birindwa (the wife of one of the alleqed victims), who was supposed to collect: the necessar, funds. At the same time, they wrote to the Chief Justice of the Supre•• Court to infora the Court of the steps taken to comply with the necessary forMalities. It later transpired that Mrs. Birindwa had not been in Kinshasa at the ti.e in auestion and that the intended collection and payment of the court fees had not been made. The lawyers contend, however, that the efforts made to comply with the formalities, althouah unsuccessful, should be considered as satisfactory, in particular as the decision not to take aetion on the appeals was taken relatively shortly after the Supreme COurt was informed of the efforts beinQ ..de to collect and deposit the court fees. They submit that, since the decision of the Supreme ·COUrt not to consider the appeals could not be challenqed under lairtan law, domestic remedies had been exhausted within the meanin~ of article 5, paraQraph 2 (b), of the Optional Protocol. They further point out in this context that under article 33 of the Code of Procedure for the Supreme Court of Justice, the President of thf! Court could have waived the deposit. Article 19. The parliamentarians were punished solely because of their opinions; Article 22. The criminal proceedings before the State Security Court resulted from the defendants' attempts to establish a political party (a right implicit in the right to freedom of association), The order, issued by the Central Committee of MPR, to strip the parliamentarians of their parliamentary mandate was based on internal regulations adopted only on 7 January 1981, i.e., after the date of the alleged offence - the sending of the ·open letter" - which occurred in 1980J Article 15. Articles 9 andt2. The measures of arrest, internal exile or house arrest to which the parliamentarians were subjected in December 1980 continued until 4 December 1981, although an amnesty had been decreed on 17 January 1981, and therefore constituted arbitrary arrests and detentions, these measures were also contrary to the provisions of article 12, paragraph IJ Articles 7 and 10. The alleged victims were subjected to ill-treatment in detention.
By a letter dated 23 June 1983, the lawyers informed the Human Rights Committee that the alleged victims had all benefited from a new amnesty decree, promUlgated on 21 May 1983. They therefore asked that consideration of the communication be suspended to allow them time to contact their clients for further instructions. Consideration of the communication was, accordingly, suspended temporarily.
By a letter dated 9 January 1984, the lawyers requested the Committee to resume consideration of the communication. As to the developments after the amnesty of May 1983, they stated that the President had adopted "an administrative banning measure" against their clients and that they had been deported along with their families to different parts of the country. They further conveyed the concern of their clients' family members living in Belgium, who had been unable to contact the alleged victims since the deportation.
By a letter dated 24 January 1984, the lawyers reiterated their request that consideration of the communication be resumed, alleging that the current situation of their clients constituted a violation by the State party of article 9 of the Covenant. In substantiation, they enclosed a copy of a letter of 25 December from -123-
In a further letter, dated 19 June 1984, the lawyers stated that the banning orde( against their clients, being of a purely ~dminist'ative nature, could not be SUbject to any jUdicial control and that the deprivation of liberty of their clients constituted violations by the State party of articles 9 and 12 of the Covenant. In substantiation, they enclosed a copy of a letter addressed to them on 18 June 1984 by Mrs. Marie-Claire Ngalula-Mbomba, the eldest daughter of the alleged victim Ngalula Mpandanjila, deecribing the situation as follows: nAs soon as he was arrested and banned to the village of Tshilunde, my father was joined by the rest of his family, who had also been arrested and forcibly brought to the same village. The banned family members include children still of elementary-school 8ge, adolescent boys and girls who are now prevented from continUing their studies, and married brothers who are heads of families and whose wives have been left at Kinshasa alone with small children and without any means of support. "All the news that has reached me gives evidence of: "Deprivation of the minimum needed to live. They are not allowed to obtain the money they need for their survival or for their housing, and no one, not even a member of the family, is allowed to help themJ "Total deprivation of medical attention. They are therefore at the mercy of all kinds of diseases and are the ideal targets of malnutrition. The closest town is 65 kilometres from the place to which they have been exiled. There is no road infrastructure for rapidly evacuating the sick in ease of needJ "Deprivation of liberty. Victims of an arbitrary banning measure, they are deprived of liberty even within the locality. A large security force has been installed all around the locality to prevent any eontact with the outside. The inhabitants of the village are prohibited, under pain of imprisonment, from speaking to the banned persons (who are to consider themselves as being in prison) even concerning problems connected with the very administration of the village. The customary chief of the village was arrested for having allowed villagers to communicate with the family during the first few days of their axile to the village. "My father, who was deported with 17 persons, is living under conditions that could not be more preearious. Most of the children sleep on the tables of the little local market's stalls, which they must leave at dawn to make room for the traders, while others must make do with secretly borrowed mats and cloths spread on the ground under the open sky. -As if all these violations and humiliations were not enough, our main house in Kinshasa has been robbed and the managers of businesses have been arrested, so as not to leave any resources, however small, that would enable them to live 'decently' in the place to which they have been exiled. "I consider it important to point out, -124- "That these measures are not based on any judicial decision, "That is the situation of my family at this time; ttAs to the other members of the Group of Thirteen, I can state that their situation Is similar to that of my family.-
Consideration of the communication was resumed at the Committee's twenty-second session and on 5 July 1984 the Workinq Group of the Human Riqhts committee decided that the communication ~ transmitted, under rule 91 of the provisional rules of procedure, to the State party concerned, req~estinQ information and observations relevant to the question of admissibility of the communication. The Workinq Group also requested the State party to trans~it to the Committee copies of any court orders Or decisions relevant to the case.
The ~ime-limit for the State party·s submission under rule 91 of the provisional rules of procedure expired on 14 OCtober 1984. At the time of adoption of the decision on admissibility on 9 July 1985, no submission had been received from the State party.
Before decidinq On the admissibility of the communication, the lawyers were asked to clarify for the Committee, which of the initial 13 alleQed victims still wished to pursue the matter before the Human Ri~hts Committee. By a teleqram dated 26 February 1985, the lawyers stated that they had received no instructions from Kaoita Shabangi, Nqoy Mukendi, nia Oken and Kasala Kalombs, and that, although they had not been able to contact the other petitioners directlY, they understood from their friends and families that it was their intention to pursue the matter.
In the light of the above clarification, the Human RiqhtB committee decided to continue consideration of the communication with respect to the cases of nine of the initial 13 alleQed victims and that Messrs. Kapita Shabanqi, NQoy Mukendi, Dia Oken and Kasala Kalomba were no longer deemed to be parties to the communication.
Before considerinQ ~ communication on the merits, the C~mittee must ascertain whether it fulfils all conditions relating to its admissibility under the Optional Protocol. With reqard to article 5, paragragh 2 (a), of the Optional Protocol, the Committee had not received any information that the SUbject-matter had ~een submitted to another Procedure of international investiqation or settlement. Acco~dinqly, the Committee found that the eommunication was not inadmissible under article 5, Daragraph 2 (a), of the Optional Protocol.
Reqardinq the requirement of eXhaustion of domestic remedies under article S, paragraph 2 (b), of the ODtional Protocol, the Committee observed with reqard to events prior to 26 October 1982 (the day on which the Supreme Court decidad not to take action on the alleged victims· appeals) that the SUD~eme Court·s dr.~ision rendered the remedy of appeal ineffective, at a time when the Supreme Court had been informed that steps were being taken on behalf of the alleged victims to collect and to deposit the reouired court fees. The Committee noted the particular difficulties facinq the autho:s, who were alleqedly scattered amonQ different
On 9 July 1985 the Human Rights Committee therefore decidedl
That the communication was admissible in so far as it related to Messrs. Ngalula Mpandanjila, Tshisekedi Wa Mulumba, Makanda Mpinga Shambuyi, Kyunqu Wa Ku Mwanga, Lumbu Maloba Ndoba, Kanana Tshion Go, Lusanga Ngiele, Kibassa-Maliba and Birindwa,
That~ in accordance with article 4, paragraph 2, of the Optional Protocol, the State party be requested to submit to the Committee, within six months of the date of the transmittal to it of the decision, written explanations or statements clarifying the matter and the remedy, if any, that might have been taken by it.
The time-limit for the State party's submission under article 4, paragraph 2, of the Optional Protocol expired on 1 February 1986. No submission was received from the State party.
No further submission has been received from the authors following the Committee's decision on admissibility.
The Human Rights Committee, having considered the present communication in the light of all the information made available to it by the authors as provided in ,1rticle 5, paragraph 1, of the Optional Protocol, hereby decides to base its views on the following facts, Which, in the absence of any submission from the State party, are uncontested.
The authors are eight former Zairian parliamentarians and one Zairian businessman. In December 1980, they were subjected to measures of arrest, banishment oc house arrest on account of the publication of an "open letter." to zairian President Mobutu. The eight parliamentarians were also stripped of their. membership of parliament and forbidden to hold public office for d period of five years. Although they were covered by an amnesty decree of 17 January 1981, they were not releas£d from detention or internal exile until 4 December 1981. They were subsequently brought to trial before the State SecurIty Court on 28 June 1982 on charg~s of plotting to overthrow the regime and planning the creation of a political party, and of secreting documents concerning the establishment of said party. The trial was not held in public; no summonses were served on two of the accused; and in three cases the accused were not heard at the pre-trial stage. The accused were sentenced to 15 years' imprisonment with the exception of the businessman, who was sentenced to 5 years' imprisonment. The authors were released pursuant to an amnesty decree promulgated on 21 May 1983, but they were then
In formulatinq its views, the Human Riqhts Committee also takes into account the failure of the state party to furnish any information and clarifications necessary for the Committee to facilitate its tasks. In the circumstances, due weiQht must be qiven to the authors' all~ation. It is implicit in article 4, paraqraph 2, of the Optional Protocol that the State party has the duty to investigate in good faith all alleqations of violation of the Covenant made aqainst it and its authorities, and bo furnish to the Committee the information available to it. The Committee notes with concern that, despite its repeated requests and reminders and despite the State party's obliqation under article 4, Daraqraph 2, of the Optional Protocol, no submission whatever has been receiVed from the state party in the present case.
The Human Rights Committee, acting under article S, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that these facts disclose violations of the Covenant, with respect to: Article 9, paraqraph 1, because the authors were SUbjected to arbitrary arrest and detention and were not released until 4 December 1981, desoite an amnesty decr,ed on 17 January 1981, Article la, Daraqraph 1, because they were subjected to ill-treatment durinq the Deried of banishment, Article 12, paraqraph 1, because they were deprived of their freedom of movement durina long perioda of administrative banishment, Article 14, paraqraph 1, because they were denied a fair and public hearing, Article 19, because they suffered persecutiun because of their opinions, Article 25, as to the eight former members of the Zairian parliament, because they were deprived of the riqht eoually to take part in the conduct of public affairs.
The Committee, accordinqly, is of the view that the State party 1s under an obliqation, in accordance with the provisions of article 2 of the COvenant, to take effective measures to remedy the violations that the authors have SUffered, to grant tnem compensation, to conduct an inquiry into the circumstances of their ill-treatment, to take action thereon as appropriate and to take steps to ensure that similar violations do not occur in the future.