The author of the communication (initial submission postmarked 5 November 1987; further letters dated 20 June, 4 August, 5 and 28 September 1988 and 7 February 1989) is A. M., a Spanish citizen residing at Geneva, Switzerland. He submits the communication on behalf of his deceased brother, I. M., born on 18 August 1941 in Spain, who died in an Italian prison on 26 August 1987 following a hunger strike. He alleges that Italian authorities violated his brother's human rights.
The author states that his brother was arrested in Milan all 6 April 1987 on suspicion of involvement in the traffic of drugs. He was allegedly not visited by the investigating officer, Judge A. C., until 3 June 1987, that is, almost two months after the beginning of his detention. It appears that this interrogation proved inconclusive and that no formal charges were raised, so that I. M. requested a second interrogation in order to establish his innocence. However, no further interrogation was granted and I. M. protested against his continued detention by going on a hunger strike on 7 July 1987. During this period he was allegedly seen only once by the prison doctors, when he was transferred to the hospital, only to be returned to the prison because his condition was not considered sufficiently serious. The doctors recommended that he be fed intravenously, hut this recommendation was not implemented.
M. 's companion, M. R. R., was able to visit him every l!i dc1ys ilt the prison. When she saw him on 20 August, he allegedly complained I.hat It i~; he 1'1'.1 ha<l been injured and that he could not see well. In spite of her ills.isteucf'. he W<lS not taken to the hospital until 24 August, when he \oras all'eady ill n l.:'.lII1f.\. alld lie died two days later.
With regard to the exhaustion of domestic n'l1',erUes, the miLl"" '\lld M.
By decision of 15 March 1988, the Working Group of the Human Rights Committee transmitted the communication to the State party, requesting it, under rule 91 of the provisional rules of procedure, to provide information and ubservations relevant to the question of the admissibility of the communicatiun. The State party was further requested to provide a number of clarifications concerning the case of I. M. The author himself was requested to specify the nature of the complaint submitted to the Italian Attorney-General and the CUrl-ent stage of the investigations.
In a letter dated 20 June 1988, the author gives fuller information in reply to the questions raised by the Working Group. He states that in the complaint made to the Italian Attorney-General the charge is "involuntary homicide". As to the current stage of the investigation, the author indicates that they are still pending and forwards copies of his correspondence with the Italian authorities and his counsel at Milan.
In its submission under rule 91 of the provisional rules of procedure, dated 4 August 1988, the State party provides the clarifications requested by the Working Group and objects to the admissibility of the communication. Recapitulating the facts, it explains that the alleged victim: "was arrested on 6 April 1987 by the Anti-Drug Operations Unit o[ the Fraud Squad for the offences covered in articles 495 and 473 of tile Penol Code and taken into custody (fermo) by the judicial police on the strong suspicion of having committed the offences referred to in articles 71 and 75 of Act No. 685 of 22 December 1975 (traffic in significant quantities of drugs and unlawful association with persons engaged in drug traffic). The official notices of the arrest and preventive detention were formally drafted in the name of R. F. J. v. D., appearing in the identity papers produced by the accused; the Fraud Squad immediately established that the same individual had been identified on a previous occasion as I. M. and on another occasion as J. L."
The State party adds that t. M. was duly notified of the criminal activities: "ascribed to him at the first interrogation carried out by the Deputy Prosecutor of the Milan Prosecutor's Office, Dr. t. S., on 11 April 1987 at 9.20 a.m. At the end of the interrogation I. M. was served with arrest warrant No. 634/8,7 D, issv.ed on 10 April 1987 by the aforementioned magistrate, which contained the charges and the statement of grounds. I. M. received a further formal notice o[ the ch8rges against him by arrest warrant No. 508/87 F, issued on 26 Hay 198"1 by the examining magistrate Dr. A. C. ". I. M. was interrogated on b'lQ subsequenL vccasions by the examinIng magistrate, Dr. A. C., on 3 and 8 June 19A7.
I. M. 's request for a further interview with the exC\miniw] 11I;"CjisL)i'11 p. <'11 I:he time he began his hunger strike was rejected by the lattel' Oll 21 AlIgu:;!. 1987. She pointed out that the accused had already been heard on three OCCiI:;jOU:; i'lml [ .. I many hours about the activities that had led to his arrest, that COIl!'t prnceedincp; tolere suspended for the vacation pel-iod and that, in any pvent, the rh" Ip lI(lf.1l1 I "ou 1'1 have addressed to her, under article 35 of the prison requlations, allY l'equeGI: or statement which he might have considered useful [or his defence,
M.':; companion, M. R. R., had been authorized to visit the defendant ri I :d; by ti1l' llnputI' Prosecutor and subsequently by the examining magistrate, as can 11" ;ISr'PI \:;liIlPrl rrom -283-
The State party considers that the events described above "point to the fact that the responsibility for I. M.'s tragic end cannot be attributed to the examining magistrate, who showed herself to be responsive, in the context of her competence and in conformity with the requirements of the investigation, to the requests made by members of the prisoner's family".
The State party further adds that immediately after I. M.'s death the examining magistrate prepared and submitted a report detailing the facts of the case to the Attorney-General's office, which instituted criminal proceedings against the persons alleged to be responsible for the death of the victim. Pre-trial proceedings are currently under way, and it is submitted that they are progressing normally.
The State party recalls that the author's principal complaint relates to the fact that the victim's request for a further interview with the examining magistrate had been rejected, and emphasizes that there is no obligation on the part of the magistrate to grant such requests, and that the Code of Penal Procedure, which exhaustively regulates the circumstances and modalities of zuch requests (art. 190), does not provide for the possibility of an appeal. With the exception of the initial interrogation of the prisoner (arts. 245 and 365 of the Penal Code) for the purpose of enabling him to respond to the charge and authorize his defence, the magistrate has no obligation to hear the accused on several occasions. On the contrary, under article 299 of the Code of Penal Procedure, the examining magistrate "has the obligation to execute promptly all - and solely - those acts which appear necessary in order to establish the truth in the light of the evidence collected and having regard to the progress of the investigation". The authorities thus enjoy discretionary power in ascertaining whether a further interrogation of the defendant is necessary.
Finally, the State party points out that the author retains the right, under article 91 of the Code of Penal Procedure, to introduce a civil action agai~st the individuals held to be responsible for his brother's death.
Commenting on the State party's submission, the author, in a letter dated 28 September 1988, does not contest that his brother's companion, M. R. R., had been authorized by the magistrate to visit the deceased in prison, but contends that the difficulties M. R. R, encountered before she could see him either in the prison or in the hospital were solely attributable to the prison authorities. Thus, he explains that between 17 and 20 August 1987, M. R. R. was turned away under spurious pretexts at the prison gates on several occasions Inti1, at noon on 20 August 1987, she could finally see I. M. The victim, at that time, already was confined to a wheelchair and had visible co-ordination problems.
In spite of her repeated requests, M. R. R. was unable to speak with the prison director or assistant director. An intervention on the part of the Spanish Consul in Milan did not produce tangible results either. On 24 August 1987, M. R. R. again asked to see her companion. In the prison's visitors' room, she was told by an inmate that I. M. was still in the prison, although in a life-threatening condition. Subsequently, a guard told her that I, M. had just -284-
Before consid.ring any claims contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its provisional rules of procedur., decide wh.th.r or not it is admissible under the Optional Protocol to the Covenant.
The Committee has ascertained, as it is required to do under article 5, paragraph 2 (8), of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
Inasmuch as the exhaustion of domestic remedies is concerned, the Committee obs.tves that it would be open to the author, pursuant to article 91 of tho Italian Code of Criminal Procedur., to introduc. a civil action against those alleg.d to be responsible for his brother's dealh. The Committee has further noted the State party's uncont.sted claim that it did institute criminal proceedings against the inClividuals held to be responsible for the death of I. M., on 21i August 1987, al.d that the investigations are proceedinCJ normally. The Committee concludes that available domestic remedies have not been exhausted and that the requirements of article 5, paragraph 2 (b), of the Optional Protocol have not benn met.
With resp.ct to the autho~'s complaint that the alleged victim was denied the opportunity of a further interview with the examining magistrate, the Committee finds that this r3ises no issue under the Covenant.
The Human Rights Committee therefore decides: (a) The communication is inadmissiblel (h) This decision shall be communicated t.o th~ author And to t.he StAt.P. party.