Auguot 1983 (date of initial letter) Date of docision on admioeibllity, 28 March 19ns The Human Righto Conunittee established under article 2d ot' tho Intomatior.ul Cov~nant on Civil und l,>OUtiC. L Righto, Moeting on 3 April 1987, Having concludod ita conuie.eration of communication No. 155/1983 BUhm! ttod to the Committee by Maitre Eric Hammel ulldor the Optiondl Prlltocol to the Intornational Covonant on Civil and Political Rights, Having taken into account all. wri t,ton information mado llvlJi lablo to ~ ... by the author of tho communicotion and by the State purty concerned, adoptll the followi ng, vn:ws UNOEH AIt'l'lCLl': C;, PARAGRAPH 4, Oil 'l'II~ OP'l'IONAL PRO'l'OCOL
The author of tho communication (initial lettor dated 1 Auqunt: 1993 and furthor letters of 12 Docember 1CUt~, 18 Septomber and t 7 octouor 1905, 10 May and 18 August 1986 and 25 I!'ouruory 1987) io M~'ltr:e Er. ie lIummel, a I!'t'ollch national and rouidont or France, formerly a practising attorney in Madaga~Mar until hiu expu1oion in FebrUlli. y 1982. 110 cl"ims to be a victim or vic",la!:iono by the l.H.ato par~y of arti~loD 9, 11 or-.d 1" of the Int'.ornlltional Covenant on Civil and Pollt.ic.u Rights. 110 aloo allegoo a broach of o1rticlo 2, parl1graph 3 (h), of tho Covonant.
Maitro "ammal atatus that hn was called to the M~daqaGcar bur in MAy 1963 and practised law at AntanlU\advo. fie claims to have built up over a poriod at' 19 years one of the best law practices in Ml:\daqaocar and that he dot'ondlld the principal leaders at' the Malogaoy political opposition ao well uo other political pr isonerl..l. He alleqo<.l that on two oceuRiona, in 1980 and 19tH, ho wall dotained by 0010 (Malagasy p.)Uticlll police) und reloaaed after one day of questioninq. On 8 It'obl'uary 1982, thp political police arrested him again at hiA law office, Icl~pt him in incommunicado detention in a ba90m'?nt cell of tho l.>"'i80n of t:hn political police and subsoquently doportecl him from Modaqaocar on 11. l"ebruary 1982, qiving him only two hourB to pack hiB belonqinqu.
The author alleges certain interferonce with his correal~ndence by the Malagasy postal services and governmental interference in various court proceedings in which he was engaged.
It io claimed that the proceedings started by the author were deliberately paralyaod by the ~alaqasy Government in violation of domestic laws and of the Intornational Covonant on Civil and Political Rights. In this connection the author aubatantlatoa hie alleqatlona aD follower "Article 13, After 19 years aa a me~ber of the Madaqaocar bar, I was expelled from Madagascar £10 a French national by order of 11 February 1982, with 24 hours' notice. I was notified of the order on 11 February 1982 and there waG a plane leavinq at 8 p.m. I had two hours to pack my baggage at my home under survoillance by political police offlcero. I thUD had nCl opportunity to avail myoelf of any of the remedieD of appeal againot the expulsion order that are provided for by law. When J lat~r appliqd to the Administrative Chamber of tho Suprome Court to have the expulsion order repealed, the procoedings ••• were thwarted by the Gov.trnment." "Article It, paragraph lr The Government hnB prevent.ed the courts and tribunals from roviowing and ruling on the appeals and charqon I have filed •.• , although t.he Covenant provides that everyone shall be entithld in Q ouit at law to a hearing by the compotent: tt'ibunal." ~i. oy ito decinion of 6 April 1984, tho Human Riqhto Committoo tranOl1l1tted th" conununication under rule 91 of thf! provigi.>nal ruleH of prc)(:odure to the State party concerned, rpqueutinq information IIUcJ obuervutionn rolt'vant to tho quefltion of admi90ihility of the conunullication. The Committee aloo roquofltod the State party to forward cupios of any court ordors or dociaiono fnlevant to tho cuso.
1'tw doadline for the State party's nubmiooion undol' rulo 91 of t:.ho Committeo'r; provisional rulen of '~rt)cedllre expired on 14 July lqa4. No ouhmiBuion wan rocoivod fu)m ttw ~tat.e pal'ty prior to adoption of t.hf. Comlllitt:t'c~'fl dc'cinion on mlmiAAihility on 28 Mawh 1l.}8'L 'l.l With reqard to art1cll" Il, plJrllqraph 2 (al, of tho Optional Protocol, thn Committoe I\ot.nc) that it had not. rt'c~oivod any informat iOIl lllat the allbject-mattcH' had heon fJubmitted to another procedure of internntionol invootiqntion or settlement. 1). With roqllrd to artich.. 'It paraqraph 'J. (bl, ot the Optional Protocol, t:he C()mmitt'"~" W.Hl unahle.. to conclude, on th., hLHliA of th" informAtion befonl it, tha' there were effective romediea which the alleqed victim nhollld have pUl"BUed. that might have been taken by it.
Dy letter dated 18 September 1905, the author submitted further cl~u1fi<.:at1un of the facta outlined in his original communioation, J partioular with respoot to his arrest on 8 February and expulsion on 11 February 1982. He desoribes thu search of his law offices oan lad O\lt by tho Malagasy political police on
February 1982 and continues, "On the conolusion of the searoh, I was taken away by officers of taw Malagasy political police and held in a basement cell in the Malaquay political police priaon ••• I was then informed that, in fact, 1 waa suspeoted of beinq an international spy in view of my contacts and oommunications with Amnesty International and the Human Rights Comn'ittoo sinoe, aocordinq to the Malagasy politioal polioe, those contacts cllnotitutf;.'(] the orime of international espionage. Consequently, from 8 to 11 February 1982, I was questioned uololy about that alleged crimo of international espionA~e and my contacta with the above-mentionod orqanizations. Duri that period, I was dotained in tho Malagasy ~)litical police prison (in an unU t, underground coll meuaurlnq 1. SO by 2.50 lIlotr'-lU with no sanitary facllitiea and oontainirq only a wooden platfotm on which tu sleep) in tho striotest solitary confinement, prohibited from contacting a fellow lawyer, the {~atholic ohaplain or my family and horn receiving, wdtinq or Bonding letters ••• In the early afternoon of 11 l-'ebrllllry 1982, ••• I •.• waD notified of tho expulsion order, No. 737/82 of 11 February 1982, iuou~j against me. ••• In the early evening of Thur~day, 11 Fobruary 1982, 1 wao eacortod back to my homo Gnd offioe whore I was permitted to pack my belongings undor the surveillance of two officers of the Malagasy political polico. HOWOV01', I was forbiddon to contact anyone. I was then drivon t.o tho airport at Afltananarivo in a Malagasy political I>OUOO (DGIU) vohicle qUQrdod by the tw\) polioe officers (rolnforcod by foul.' soldiers armed with Bub-machille-guno) and was ilRmodiately taken on board tho ahct:uft louvifltJ t:or Paria in the late evening of 11 rebruary 1982. Even tho repreoentative of the I!'ronch f:",bassy was not allowod to contact me at t.ho III rport. ••• Althouqh X waR arrostcd f01' so-called conspiracy, I VlaB immoclhtol y illformud that 1 wall actually suapected of boing an intornational apy. However, I waD nOVer indicted or brought ooforo Q maqintrate on that. charqe. 1I
'l'heae t:"cts, tho lluthot: altoqmJ, a190 constitute Cl violation of article 9 ot: the Int..rnation/:ll Covenant on Civil and Political JUghtl:l.
In ito Bubmi90ion undur l.utiole 4, pUl'<ltfraph 2, ,Jt' t.he Opti.onal Protocol, dat.ed 27 Septomber 1985, tho Stato party objectod to the lldmiooibili.ty of tho communi(~ation, arguinq that domeotic romedieo had not yot been dxhuuntod. In particular, the State part.y ro1octed the author'o allequtlons t.hat. the Govornmont of Madagaocar had IIdelioorate1y parulynud" (d6UbCrement par~lY8QeD), the author t B 1eqa1 proceud1nqa, otatlnq that& IIAa reqardu the two appl1cut1onu lodqoo wi th the Adminlatrat i ve ChumbcH, the applicat lon concerning tho POlltal Administt'at ion wi 11 be plao~t on ttw indicated 9202'. 'l'he Court req8l'da Mattre Er ic lIammel's reply to t.houe memoranda ~a e88entia\ for the Hettlement of the dispute "Theb~ facta make it quite clear that the inquiries into the caeca involving Mal~re Eric Hammel have always taken a normal course without any move on the par~ of the Malagaoy Government to interfere with thom. ~Furthermore, Mattre Eric Hammel never took the trouble to find out from the court concerned what stage had been reached 1n the proceedinga inotitutod by him. If he felt that the court or judge wae guilty of grooo profeooional negHgence by failing to doal with hie application or suit, or that there wao a denial of juatice, he waa free to make uae of the procedure fOl' claiminq damageo fOl' miscurlage of juotice aa provided for under articles 53 to 61 of the Malagasy Code of Civil Procedure."
Aa to the merita, the State party denied the allegod violation of article 13 of the Covenant, arguing that Maitre Hammel had been axpelled in pursuance of a decision reAched 1n accordance with Malagasy law, Le., on the basifJ of an ordor from the Miniator of the Interior acting pursuant to ar~lcle 14 of Act No. 6~-006 of 6 June 1962, which Btipullttes that "expulsion may be orderQd hy decinion of tho Minister of the Interior if the roaidence of the alien in Madagascar may qivo riRe to a broach of the peaco or threatens public security".
with respect to the requirement of article 13 that an alien subject to Qxpulaion be allowed to Bubmit tho reaoons againot his oxpulait)n and to havo his caoo reviewod by, and be repreoenl:od for the purpose before, the COR'.potent authority, the State party maken reference to articlos 15 and 16 of Act No. 62-006, pursuant to which Maitro lIammo1 could have requeatod a roviow of his easel "At no point, howover, did Maitre l!:r ie IIammo1 make any such roquoot. Ho preferred to mako uoo or ttw ullminiotrut lYe romedy and to apply to tho MiniotOl of thn Inter ior. In the llhoonco of any rOAf)onoo on ttw part of tho latter, ho took hill caGO directly to tho Administrative Chamber of: tho Supromt' Court: whot'Po ha WlHJ .....'10 tu make hiA BubmiBelono for the defence without [(·~ltr1('tion. Under Malaqusy administrlttivo caGe law, the Administrative Chamber of the Supremo Court i9 compotent tu queation tho lawfulno91l of un expUlsion IIIOaO\lrO not. only from thH loqal standpoint hut atoo from tho Atamlpoint of the matorial t'actn on tho groundB of whh:h tho Adminiot.ration took the muaoure."
Concerninq tlln alleqod violation of tho proviA1ona of article 2, paragraph 1 (b), and of article 14, paraqraptl 1, of th~ Covonunt, tho Statp party noteo: -This accuoation in unfounded and 10 not aubotantiatod by any evidonco. It 1n not part (lithur of the pr1nciplofl or of the practico of the MalaqaAY Governmt~nt. to obnt.rllct. t.he cour90 of 1uatice in any way. Not for the firut time, or for the laat, has an adminiatrativo act beon the AUbjuct of appeul and the:> I\dminiAtratlve Chamber of the Supreme Court had beforp it an application for thl~ abroqation of an lldminiAtrative (1'.c\Blon. Since att:ainll\';
In hia commente, dated 11 Ootober 198!i, the author den:a.oa the State party's aeaertiol\ that he had the possibility of challenging hiD expu1oion before a 8llooial cO,"1I\i8aion providod for by Act No. 62-006. Aftor roiterating tho clrcumatancoa of hio aneat and llotention, the authOl" indicates that early 1n tho afternoon of 11 Fobruary 1982 ho was taken fron, his oel1 to tho offices of the political polico, whoro he waD served a notification of hia expulsion. Ho continuesl "I waa thon taken back to the coll, from \':hich I waa a:el\\o'. od agaL, at abl)ut 6 p.m. and takon homo under the aupol.'vision of two inapoctol'U of the political l>oHce to pack my bags and than takon by the samo inapoctoru, asuiated by foul' aalcHers armed with oub-machine-guna, to the airpol't and placed directly aboard the aircraft a~)ut to tako off for Pario. In addition, the expulsion ordor notifiod to me on Thursday, 11 Fp,)ruary 1982, at 2 1'.111. provided for a deadline of 24 hours, which WQB thus \0 expire on Friday, 12 February at 2 p.m. 'I'hol'e io II i:light to l"ranco on Thursdayo at 0 p.m. and another on Saturdays al 0 p.m. I waa taken manu mUUtari to tho aircraft on Thuroday, 11 February, but it would obviously have been impossiblo for me to tako the Saturday flight uince the expulsion deadlino was 2 p.m. on Friday. It wuo thua mater ially impossible for me, all a rooult of! tho arranqomontu nlado by the poUtical police, to UBO tho romedies providec'l for b~ Act No. 62-006, since tho period of eight dayo provided for by that Act would havo ended ('>n 19 Pebruary 1982 at 2 p.m., whoroas the deadline for oxpulsion waa 2 p.m. 011 12 Fohruary 1982, ~na I wao officially placed aboard the aircraft by the l}()Ut1ca~. poUce on the evening of 11 February 1982 and prevented ft'om communicating with anybody whatsouver 1:rom the notification of the expulEJioll until my departuro. '1'ho arrangomQnts mado by the Malagaoy political polico had prociooly tho pUI'POOO ~t: prevont1nq me from making UGe of tho remediclH againot expulsion."
l"inally, whh roopoct to thn State partY'lJ IlIlGertion that tho pnx.:eodinq!1 worQ delayod by the author's change of addr09lJ in Franco, Maitre "ammol onclODOO aB nviuonco coples of sovon l'ogiotorod lottero with l,io letterhoad and exact uddroas (irullutlinq 0 flpec.:iOc indication UB to his chun~10 of uddre90), four ot: which ar<; addressod to tho l'rolJidont of tlw AdminiAtrative Chamoor of tho Supreme Court (dated 11 January 1983, ./ Apd1 19tH, 2 April U85 and 10 AprU 1995) ~lnd throe:! addl'euo(,tl to the Ooon of the Examinlng MuqlatrlltQs of tho Antanunarivo Court (dated 12 Oocembor 1982, 7 Apt:ll 1993 and 2 Ap1'11 1901). Mult:ro lIammol ulleqoEl that all of thoso lettorB havo rOlnainod unUn8W01"OU, lo ,Jomo CUlJOS fOt" mOl"O than three yoaro, and ho concludeu that I "From the end (.;[ 1982 or tho boqioninq of 1983, tho t'olevant hnUlchos 0f the Malagasy 1udiciat·y had my exact adtlrcGu alld could have sent mo or int:orlllutl me of /lny documonts, but have done nothinq ••• Theoo letters are, moreovor, roquu8tfl for information conl~orninlJ the procoedinqB in progl.'ouo and thu arqumont of the Malagasy part.y that I hold nevor taken the troublo to find out what. stago had been reuchod in the procee<1lnqn 10 thUG negatod by th 19 evh)onc(~ which ahowll, on tho contrary, that the Malllqaoy judic6ary WUB not prl-lpar:od to inform nit! of the utaqe reacht....>c) in thn pr()cc~o(Hnqll I hall inlltltute«1. n the author i8 outaid@ Mac!agaocar.
In an iIH~Ul'inl doe: iaion dated 2 Apdl ~986 the Human Rights Commi ttoe, floting the Htato party'a obuervation that. Maitre lIal1\me1 could have aouqht L'ov~ew of the expulsion order puruuant to Act No. 62-006, -Qqueoted the author to clarify further why he did not, purau~ this remedy f~l'om It'ranee cludnq the woek from 12 to 19 ~eb,uary 1982, i.o. within the time-limit providud for in the law.
In a reply datod 30 May 1986 ~attre lIaoonel explaino that articlo l~ of Act No. 62-006 provides for an administrative or voluntary remedy in roapect of a contootoc1 deci9ion. ThiS, ha atatoD, involvea the lodqing of an appoal with the authorities calling for an adminiatrative reviow of the docisiun 1n quoation and, undor MalagaDY law, haD the effect of otayinq @xocution of the doe iD ion, uince tho aim io to bring about a reviow of tho docision, with a view to ita repeal beforo it ia put into effect. Tho administrativo appo41 th"~ providos that tho individual concerned io brought bt,foro and io hoard by a opocial c:omminoion, which qivoo an opinion, wH.h tho filial ruling being made by the Ministor of tho Intorior. Once the expulsion haB been carried out, the poDoibility of boinq hoard lly th<l' Gommionion no lonqor oxiato. 8eCllUOO of the circumotancoo of~ hLa dotontion and tho rapidity of hia expulsion, the author utatoB, h<> wan unable to 100'40 an appoal under Act No. 62-006 before he waD oxpellod on 11 Fobl'uary 1982. Upon hiG arrival in F'rancQ on 12 l"obruary 1902, he adds, UII a"poll1 undor Act No. 62-006 had hecome pointlooo, aD ho could no longer be llrouqht hefore and hean) by the commlaoion. Conoeauontly, t,o optod for content,iouo appeal hoforo tho Adminintrative Chamber of: tho Supromo Court to obtain the cancollation of tho oxpuloion ordor.
In it.Y interim docioion tho CommitteD also roquoot.od tho Stato party "to indicatn wholl tho proceedinqn lodqod by Maltl'o Er ie lIal1lffiol. 1.)0('01'0 thu Adminiotrative ChamlxH' of the Supromo Court' aro uxpocted to be cOllclurled, if PU1'UUt..>d in a timely I:I\0hion by tho partiou" alld "further to inform tho Committao all to the roaoono for Maltro ~r~c Hammal'o oxpu1a!on at ouch short: notico, without his heing ablo to oook roviow 0(' tho docioion to expo1 him )l'iOl' to hin oxpulsion." U. By noto of '; July 1986 tho state p/uty illfol'llwtl t,ho Committoe that II l'ulinq on Maltro lIammol'u applicatioll fequtmt,inq tho cancolllltioll ot' the uxpulaion ordol' Bhouhl 1>0 mado in .luly 1986. With Hlqard to tho urqency of th" cnfol:cOlllontlf the Hxpuhtion ord.1f, tho State pal'ty oubmHH that, undol' Ma1dqlluy loqiolation, an ordor t'or the expulaion of an /Alien may bo oll[orcml al: Hhort notico, that the MinlRter of t.ho Intoriol' la alono rosponoiblo for neeidlnq how 900n an expUlsion order will he ~nforcod, that Il unilateral docinion by t.ho Adminintration iD onfof.'cOl1hle 09 UOOIl ao it haB boon niqnod, and that Mllltro IImnmol'n oxpult.:lion wao linkod tu a GlHJO of cOllopiracy aqainul tho socurity of ttw State tried in JllnulHY 1982.
In il letter dated 20 AuquBt 11186 tht! author COIlIIIl(Hlted on the State purty'n rHply to thc) intorim c)ul:inion all followu% "The Ma1aqaoy State acknow1odqeo havinq expo119d me wittl Quch h~Rte that I wao prevont.nd from purauinq tho rQmodien providod for hy law... Th(~ Mal.'1qaAY St.at.u maintainu that I wan m(pt~llHll for hnvinq lawn involv..d in a plot. in ,-Innuary 19B~ ••• I wan in fact. lHr"Ht.f~d "lllf'qt~l1y hocilllne of thin 'lho author fua:thor olaims that olt'eady in February 19QU U.a ohief of the politioal polioe, in the pL'uaence of witnu8sQs, threatened hlm with expUlsion for "having defonded porsona acoused of lM.>Utlcal off.maee and havinq obtained their diaC'harqo ••• I WO'1 summor.oc't on 1 Maroh 1980 ••• by the poUtioal poliae and quoationed the whole day, befoc.t being reloa"ed in the evening. I was aC)ain aUliunoned by the ~llitieal poUco on 4 November 1980 and queaUonod the wholo day before boin~ reloasod."
In a further submission datod 1:4 January 1987 the State party, commenting on th~ author's allegations, obuc~voy that WMaitre "DIurnal continuos to make deceitful and tondentiou9 aosertions with tho intention of discrediting the Malagasy Govermnont und judioial authodt ioa.· The State party also enolosed G copy of tho text of the deoiDiun of tho AdministrativG Chamber ot the Supremo C~urt of Madaqaaoar, dated 13 August 1986. Aa to tho grounda for Maitre trammel'a expulsion, t~e Court obaervoa intor alia ea follows, "WhoL'oao it la apparent fL'om the invoatiqation that Mr. El'ic Hammal, making uue both of his atatus as a oorresponding member of Amnesty International and of the Human Rights Committoe [oio] at GcmitYa, and a9 a ban ioter, of his own fro" wi lJ. took tho Uberty ~f diaoroditing Madagasoar by making lIaoertiono of suoh qr"vlty that they ohould have been upheld by irrefutable evi~onco, wherO~D this hos not &lwaye boen tho case, whereas this is also true of the oSDertion in his most reoent ~emo(andum that the oamp of Tulofaha, oituated approximately 20 km south of Antol\onarlvo on the Antsirabo road is obvlously a camp for political priaonera, although the person In quest ion has not boen able to supply tho sUqhtoot proof for his alleqations that allY internmont haD actually taken place, whoH,an, in addition, it 19 apparent from the ~ooumontl.1 in the caae HIe that t:ho applicant did not fail to inforlll hia acquaintallcofJ abroad of the aituation in Modaqaocar:, blackening it to hia convonionco, without any COnCOL'1\ for tho tUt:t:icult onvirol\mont pl'oval Ung in tho country, regcH'dloflo of allY Ilooooomont of the nature ot! th"J r~qill\o itoolt:. ·WherelllJ conuuet of thio type wos ~.!.-1!!. incompatiblo with tho ntotuo of an Q\ien lll\~ qavo doo to tho qroateot Buupiclo111J ao to the apt>licunt'a real intentiona, WhOI.'OIlO tho Mlnlotm: of tho Interiol was therofore riqht tn have cOllllideL'od it hio duty to procm.1d to the expUlsion of Mr. l~ric "ammol, in 00 fur aa hia continuod lJl'OBOI\CO in MadaqaocQr would have disturbed public order llnd oecudty.· The cour.t thereforo l:ojocted Maitre HallUllel's application to qlllloh tha expUlsion order of! February 1982 lJnd ordort-'u him to pay costa.
In a further letter or 25 February 1987~ the author oboerveu that the State paL'ty has fa! lad to givo allY vali~ reasons for hiD expulsion and none whatevfH for such ulgsnoy on the qroundo of naHonal security aa could have juatlfiod immediate execution of the exuu1aion order. He emphaei~0B the r~levance of his prior
'l'he lIumon P.lght'. Commltteo haa oonol<1orod the present oommunioatlon ln the light of all informatlon mado availablo to it by the part.les, ao provlded ln lutlcle I), paragraph 1, of the Optional Protocol. Before adopting its "iewa, the Conunltteo took into COlltlideratlon the State PlUt.ylS late ob'tectlon to the admiooluUity of t.ho communlcatlor, but the Committee can o\Je no juutUlcation fOl' reviewing it(J decifl10n on admiesibllity Oil the baalo of th~ State party'a content lon that t,ho author had not Qxhauutod domostic l'omedloB. It 18 olear that the author waR oX(>O11 0<) in circulnl1tanceo which excluded an effoctive remedy undor Act No. 62-006. 'l'ho prt)Co6s1 nq ot! the author's 9ubaequent applications froo l"flince by roqist.ol'ed communlcatlons to obtain the ropoal of the oxpuloion ordol' wae dolayod for ovor t!our yoaru und, thuH, wou unreasonably prolongod 11\ the Donae of orticle l), puragraph 2 (b), of' tho Opt.ional Prot.ocol.
Tho Commlttoe ther'ofol'e docidoo to baae ita vlowfl on tho followlng (acto whlch aro unclloput.oc1 or ha'm not hnen rot'ut',(,(t hy tho Ht-.nto part.y.
Maltre flonulIol la a [o'ronch national and rlloidont of (o'ranee, former Iy a fH'actlalnq attorney ln Madaqaflcor for 19 yoaro until hlo OXpllllllon on 11 Fobruary HO:.!. In Io'obeuary 1980 hI) was threatened with expulslon and waD dotainod and intorroqatQd on 1 March and' aqllln on 4 Novembor 1980 in this connoctlon. On 11 J:o'ehruary 19HZ, he waf) aUllot"d at hio law ofHcQ in Arltananarivo hy the Mallltllllly poUt lcal poUce, who took hlm to a hauemcnt coll ln tho Malaqaoy political pr hum and kApt hill' ill incommunicado (1otont1on until 11 l"ubruary 1982 whon ho wan not if' 10<1 of an oxpulolon ordor agulllot hlm lfluued on thlll 8ame date by the Minllltol' of' tho IntfH·lor. At that. timo he \lIRO tll~on un<101' qUlJrd to hla homo whore ho hud two hOU1'O to puc.:k hia ho1onqlllqn. no wao do\>()('tod on the BaRIC oyonlnq to l"ral\Cf', WhtHO lw arrivod on l:.! l"obl'UIHY 1982. no waD not indlctod nor bl'ouqht boforo Cl mft(Jiutrtlte Oil any charqoJ hn wan not al'(:'Ol"docj an opportunity t.o challonqe tho expulolon ol'dor pr lor to hln oxpuloi, 'n. 'l'ho procoodinqa concQrnlnq hio flubooquont applicntioll to have thn Oxpulllhm ordor rovokod endod wlth tho dociolol1 of the AdmlnlHtl'atlvp. Chamoor 0(' tho SUl'rome Court of Matlaqaocar, <tnted l'J Auqunt. 1906, In wh kh t:ho Court ro1octod Mnitrfl Hammol In appllcllt10n ancl found the oxpulfllon 01'(101' Vl.aU<t on the ql'oundo thltt Malt.r:Cf lIamm01 alloqe<Hy mado "UDO hoth of hln ntatlltl all n COl'Hw.xHltHnq mumbol' o( Amnosty Int:ul'l\at1onal and of the Humall IHqhtn ~omm1ttnn In_~~.l at Goneva, and no n harl'1slel'" to t1iOC1'odit Mlltl"qanC8l'.
In thlB conluxt, t'.lw Commlt.toa oUB01'VCHl that al't',lcl~, 1.1 ut' the Covonant providon, at imy tat.. , thHt lln alien lljwt'ully in the ltH'l'ltory o( 0 Statu party "may bo l~xp(lllnd thl'flltrum onlv ln PIHllWlllCt' 011 u doclllhm roachod in acco1'<1anCtl wit.h law alld lIhllll, C'XCf>pt- wilUt"n cOlllpnlUnq HH1UOIHI 01 nut:ionul socurlty othorwlao UJtJllil'.t, Ut' Illlow(lt! to fl\lhlldt t.hC! nt<lnonu IJqaillllt hiu expuLaion and tu hawl hlt) clJnu rnVl(IWml by, •.Hld llt' lHpr t'lIPllb-t1 rOl' t'tH> puq>ouo bt'fon-, thp compotont l.aut htH' it Y 01 ,I pp I 'lOll 0 I PI! t' 1l0n~1 I'IJPC'C i III ) Y dc'nl CJtl/l tt~d bV t ht' compptcnt au thor 1t y" , faoUlt1eu for llursuing hie remedy against OX1)ulsion so that this l'ight wi 11 in all the oiroumutanoOB of his case be an effeotive ono".
The Committee further notee with ooncurn that, based on tho information p1"ovidod by the state party (llara. 15 abovQ), tho decision to expol Edc Ilanunol would apllOar to have been linked to the fact that he had represented poraons bofore the lIuman Ri9hts Commltt~e. Were thAt to be the oaoe, the Committee observes that it would be both untonable and incompatible with the spirit of the International Covenant on Civil and PoUtical Rtghts and the Optional Protocol the~eto, if statee parties to theso instrumonts were to take exm~ption to anyone aotinq as logal counEl~l for pel:aonu placing their: communications before the Committee for consideration under the Optional Protocol.
The insuoa raised in thia case also folate to article 9, puraqraph 4, of tho f'ovenant, in the senso that, during hi8 detention proceding oxpulslon, Eric lIummol was unable to challengo his arrest. U.'l 'l'he Committee makes no finding!) with regard to the other claimo made by the author.
'i'ho Human lUghts Committee, acting under articlo I), pu[aqrllph 4, of tho Optional Protocol to the International Covonant on Civil and Political Riqhta, iD of tho view that the faota aa found by tho Commit.tQQ diuclooo violations of tho Intornatiollal Covenant on Civil and Political IHghto with rOOlloct tOI Article 9, paragraph 4, becauae Eric lIammel WQG unable to take pl'oceodiuqH borare a court to dotormine the lawfulneslJ 01' hiD arrest, At'Holo 13, bocause, f01' groundn that woro not those of compli!lLinq l'onouno 01' natiunal socurity, ha waD not allowed to 9ubmi" tho reasons against hia expulllion and to have hiD caee l"oviawod by a competent authority within a reasonable timo.
Tho Committoe, Ilcooa;"dinqly, is of the view that tho State party i8 under un obliqlltioll, in accordanCfl with tho proviaiono of article 4: of tho Covonant, to tako offoc:t1ve meaUU1'OB to remedy the violat1c;mo Which MlIitro lIammol h"!J BuHerou anJ to take otepR to enouro that aimilal' violationo do not occur in the future. NotOD y Official "eoordo of the General ABDembly, Forty-firet H~DUi()n, Bupplemont No. 40 (A/41/40), annex VI.