The author Qf the communication (initial letter dated 25 March 1988, and further letter dated 27 December 1988) is J. R. C., of undetermined nationality, at present detained at the Centro de Detenciones de San Sebastian in San Jose, Costa Rica, awaiting expulsion from that country. He states that according to his adoptive parents he was born in Mexico, but that there is no evidence of this fact ani that he has no document to establish his identity. He claims to be a victim of violation of articles 9 and 14 of the International Covenant on Civil and Political Rights by Costa Rica. He is represftnted by counsel.
He states that on 4 July 1982 he clandestinely entered Costa Rica from Nicaragua, where he had participated i~ the Sandinista movement. The Costa Rican immigration police, however, arrested him and a tribunal sentenced him to two years' imprisorunent on charges of "ideological falsehood" and use of a false document. In 1985, upon completion of his term of imprisonment, he was expelled to Honduras, where police authorities immediately detained him under charges of having participated in a kidnapping said to have occurred in 1981. After escaping from prison in 1987, he re-entered Costa Rica in order to marry a Costa Rican woman by whom he had a son out of wedlock. On 24 November 1987, however, he was again detained by Costa Rican police.
With regard to the exhaustion of domestic remedies, the author states that on 11 December 1987 he invoked article 48 of the Costa Rican Constitution before the Costa Rican Supreme Court, requesting to be released from detention or, in the alternative, to be brought before a judge if there wero any charges against him. The Supreme Court, however, denied the author's requests on the grounctr:; that on 25 November 198? the Ministry of Immigration had adopted Cl resolution to deport him as a danger to national security. The author claims that he has exhausted all domestic remedies available.
By decision of 8 July 1988, the Working Group of the Hwnan Rights Committee transmitted the communication under rule 91 oC the provisional lOllIes of !:'l"OCeUUloe to the State party, requesting information and observations relevant to the qUflst!on of tho admissibility of the communication.
With regard to the facts, the State party points out that the author I " ••• possesses no documents accrediting him as a citizen of any country, and therefore considers himself to be ~tateless. There are indications that he may have been born in Mexico, but there is no evidence to confirm this. He took an active part in the revolutionary struggle in Nicaragua, which cUlmi~8ted in the overthrow of the reg~,me by the Sandinistas and the establishment of the GoverMlent of the Sandinista National Liberation Front. He was a180 involved in guerrilla activities, alternately in El Salvador and Honduras, and also in Nicaragua, between 1978 and 1981. He has been linked with the Sand~nista NRtional Liberation Front and is known among Central American guerrillas by the alias of 'Commander Sarak'."
In July 1982, he entered Costa Rican territory clandest~nely and without documents. He never took any steps to obtain migrant status in Costa Rica. However, he did try to obtain papers identifying him as a refugee through the Regional Office of the United Nations High Commissioner for Refugees (UNHCR) in Costa Rica, by using false documents. He was arrested in Costa Rican territory together with other aliens in 1982, in the city of Liberia, armed with an M-23 sub-machIne-gun and ammunition. The papers confiscated from him on this occasion included documents implicating him in a terrorist plan to attack the Guatemalan Embassy at San Jose, in order to take diplomats hostagG and subsequently to demand a cash ransom as well as the release and granting of amnesty to Guatemalan political prisoners and their transfer to Mexico.
He was tried and sentenced by the Costa Rican court in 1982 on two charges of "ideol~gical falsehood" and one charge of the use of false documents, and sentenced to twu years' im~risonment. On completion of his sentence, the Costa Rican authorlties ordered his deportation, and this subsequently took place after considerable efforts to find a country th4t would agree to take him. It was finally possible to deport him to Honduras or- 1 October 1985, and he was then banned from entering the national territory.
6ubsequently, although it is not known exactly when, he re-entered Costa Rican territory clandestinely and illegally. He was again arrested by the Costa Rican authorities on 24 November 1987 and immediately, in a decision taken 011 25 November 1987, the Directorate-General for Migration and Alions' ACfoirs again ordered his deportation, since he was illegally in the country, had previously been deported and ha1 a criminal record that marked him out as a dangerous person and a threat to national security and pUblic order. He was detained Ullt i 1 H <.'lIunt.ly could be found that would agree to take him. The State party point." out thAt. it hAS apprOl.,ched the consulates and embassies of nwnerous f r ienctl y countr i CB, t.hus f~r without success, and that it is continuing its endeavours tn rjnd /1 receiving country.
The State party further observes that the auth()J~ committed Lit£' r.er luus offence of unlawful association prejudicial to the public pp-ace. For Uti· lIrrflIlCP., Lllp. Second Higher Criminal Court, First Section, of San ,Jose, in njlldqm"l!llt handf!(l down on 7 December 1982, sentenced him to two years' impr isorunent "(b) At the time when he was arrested, an M-23 sub-machine-fjun was confiscated from bim witb four maga.ine. aftd 170 9 mm-calibre projectiles for tbat weapon, and triangular black-cloth masks, one of which carried a badge reading 'Cbe Guevara Commando'. A number of documents were also confiscated, including one confirming bis membersbip of the guerrilla movement and the draft of a 'war report' of tbe so-called 'Cbe Guevara Commando', "(c) Tbe Commando was proposing to carry out in Costa Rican territory a terrorist operational known as 'Death to tbe Fascist Government of Guatemala'. Tbe details of tbis terrorist attack against the Guatemalan Embassy at San JOS8 and its aims are specified in the judgement of the court, "(d) Tbe autbor of this communication, the accused in the trial in question, admitted to tbe courts that he was part of the 'Che Guevara' guerrilla commando and gave details at plan~ which were going to be put into effect in Costa Rica, coinciding with tbe details of the 'war report' confiscated from him when he was arrested. Mt. J. R. C. added that the cummando of which he was chief was made up of two other men who were not arrested, and that one of them was also carrying a sub-machine-gunl "(e) Documentary evidence was adduced at the trial proving that the author was in the vanguard of the army of the Sandinista National Liberation Front, as a member of the 'Filemon Rivera' and 'Facundo Picado' columns."
With regard to an alleged violation of article 9, paragraph 1, of the Covenant, the State party submits that this provision does not apply to the author because he entered illegally into the national territory and is breaking the country's laws (since he was prohibited from entering Costa Rica by a final decision of 1 October 1985 of the Directorate-General for Migration and Allens' Affairs). The State party further submits that there are other provisions of the Covenant relating to liberty of person and freedom of movement which show that persons who are unlaWfully in the territory of a State do not hAve the right to reside in the country or to move freely within it. These restrictions ere set out in article 12, paragraph 1, of the Covenant. Pursuing the analysis of the provisions of article 9, paragraph 1, of the Covenant, the State party argues: " ••• that the author is not SUbject to arbitrary detention or imprisonment, since he has been detained under a decision by the competent. Author: t / alld if he is deprived of his freedom this is because in accordancp. with the MigIdnts and Aliens Act and its regulations anyone who Ilas unlaWfully entered the country and who is under an order of expulsion shall be kept in detentiun during the deportation procedure, particularly if allowing Ilim to remain at liberty would endanger national secur i ty and publ ie order. 'l'he Aut hor' R background shows him to be a highly d~ngerous person owing to his pact guerrilla and terror ist octivities, as wel :', as his cI'iminul I f!{'unl ill CUHtn Rica, where he was sentenced Cor a number of offences. Thp Nf!~urity monAures The length of the author'. detention pending deportation iA attributable to the fact that in spite of concerted efforts by the State party, no other country has hitherto agreed to ~ccept Mr. J. R. C. into its territory.
With regard to an alleged violation of article 9, paragrap~ 4, of the Covenant, the State party submits that the evidence pr(,.ented by the author himself demonltrate. that his claim is unfounded, since on 11 D~cember 1987 he applied for hAb'" corpul before the Supreme Court of Justice, which on 5 January 1988 declared the application unfounded, thus confirming the lawfuln~8s of his detention. In its deci,ion, the Court .tated that "in the ca.e of aliena unlawfully presftnt in the territory of the Republic, detention constitutes the physical means of ensuring their e.pulsion, a measure already decr.eed by the Directorate-General for Migration and Aliens' Affairs".
With regard to an alleged violation of article 14 of the Covenant, the State party lubmitl that at the time when the author lubmitted h~R communication, no crimin~l charge had been brought against him for his second illegal entry into COlta Rican territory. The State, acting through the Directorate-General for Migration and Alieni' Affairs, ~erely ordered the deportation of Mr. J. R. C. f~[ entering the country illegally once the Costa Rican authorities had decided to deport the author, and their sole responsibility was to expedite the process, and to find a country which would agree to accept tim.
With regard to the exhaustion of dome.tic remedies, the Stat6 party submit. thata "If, on entering the national territory, the author had intended to seek a mean, of remaining in the country with some kind of status as a migrant, the correct procedure would have been to apply to the courts to invalidate the e.pul.ion order, ~rovin9 that this decision on the part of the Directorate-General for M!grati~h and Aliens' Affeirs was not legally correct. ror this purpole the author had normal remedies available, and could have filed an administrative petition in accordance with article .9 ot the Political Constitution end article 20 of th& Act Regulating AdmAnistrative Jurisdiction, No. 3&67 of 12 March 1966 ••• "This was not the procedure chosen by the author •.• With his communication to the H\:.nan Rights"Committe., Mr. [R. C.) is endeavour.lng to cancel hi' detention, ~hich il a precautionary measure Gud the consequence and result of the deportation order issued by the competent Buthoritias, instead of endeavouring to have the order reversed by means of th~ remediew provided by law, which he has not used."
On 27 December 1988, the author commented on the State part.y's submiBsioll, pointing out that the exhaustion of domestic remedies in his CBse would ba "highly technical, slow and expensive", whereas international human rights law only require. the ~.haustion of remedies that are adequate and effective. According to him, the only effective remedy in his ca.e would have been a successful actiou of hlb'" corpus, w1fich the Supreme Court of Costa Rica had denied. The author therefore contends that effective remedies have been exhausted.
Before con&1ded.nq any claims in a communication, the Human RiqhtB COlMlitte. must, in accordanc. with rule 87 of its provisional rul•• of procedur., d.cid. whether or not it is admissible under the Optional Protocol to the Covenant.
Article 5, para9raph 2 (a), of the Optional Protocol precludes the Committee trom con&1der1nq a communication if the same matter is bein9 examined under an::»ther procedure of international investigation or settlement. In this connection the Committee has ascertained that the same matter is not b.ing examined under another rrocodure of international investigation or settl~ment.
Article 5, paragraph 2 (b), of the Optional Protocol precludes the Committee from considering a communication unless domestic remedies have been exhausted. In this connection the Committee notes that the State party ha. indicated that administrative and judicial remedies arft still available to the author. that he could still file an administrative petition to invalidate the expulsion order. and, if unsuccessful, could apply to the courts for review. The author's belief that the.1 remedies would be highly technical, slow and expensive does not absolve him from thB requirement of at least engaging the relevant procedures.
The Committee ha. also examined whether the conditions of articles 2 and 3 of the Optional Protocol have been met. With regard to a possible breach of artiCle 9 of the Covenant, the Committee note. that this article prohibits arbitrary arrest and detention. The author was lawfully arrested and detained in connection with his unauthorized entry into Costa Rica. The Committee observes Lhat the authur 1& being detained pending deportation and that the State party is endeavouring to find e host country willing to accept him. In this conntiction, the Committee noteR that the State party has pleaded reasons of national security in connection with the proceedings to deport him. It is not for the Committee to test a sovereign State'u evaluation of an alien's security rating. With respect to a ~osaible violation of article 14 of the Covenant, 8 thorough examination of the communication hal not rlvealed any facts in subltantiation of the author's claim to be 8 vi~tim of a violation of this article.
The Human Rights Committee therefore decides, (a) The communication is inadmissible under erticles 2, 3 and 5. paragraph 2 (b), of the Optional ProtoCjlol beoause the author 's dRims ara eit.her unsubstantiated or incompatible with the provisions of the Covennnt, and because donlestic romedies have not been exhausted I (b) This decision shall be communicated to the author and I n the StRte party.