v. Portugal

October – 2 November 2001

The author of the communication, dated 15 December 1999, is Mr. Wan Kuok Koi, a citizen of Portugal and resident of Macao, at present serving a sentence of imprisonment at Coloane Prison in Macao. At the time of submission of the communication, Macao was a territory under Chinese sovereignty and Portuguese administration (Art. 292 of the Portuguese Constitution). The author claims to be a victim of a violation of article 14 of the International Covenant on Civil and Political Rights. He is represented by counsel.

Portugal is a party to the International Covenant on Civil and Political Rights since 15 September 1978 and a party to the Optional Protocol since 3 August 1983. On 27 April 1993, Portugal made a notification concerning the application of the Covenant to Macao. There is no record of a notification of territorial application of the Optional Protocol to Macao. However, there is no reservation or declaration by Portugal excluding the application of the Optional Protocol to Macao.

At the time of submission of the communication, Macao was still under Portuguese administration. It reverted to Chinese administration on 20 December 1999, four days after submission of the communication against Portugal.

Until 19 December 1999, the status of Macao was governed by the Basic Statute of Macao of 15 February 1976 (Lei No. 1/76). Article 2 of the Statute stipulated that the territory of Macao constituted a legal personality under internal public law, with administrative, economic, financial and legislative autonomy within the framework of the Portuguese Constitution. The judiciary remained part of the Portuguese administration of justice. Macaos status under public international law was also defined in the Sino-Portuguese Joint Declaration of Beijing of 13 April 1987 (in force 15 January 1988), pursuant to which Macaos status was determined to be Chinese territory under Portuguese administration, as already provided for by secret arrangements of 1976. Indeed, in the Portuguese Constitution of 2 April 1976, Macao is not included among the territories under Portuguese sovereignty, but is referred to as a territory under Portuguese administration.

The author was on 1 May 1998 at the Coloane Prison in Macao, under suspicion of being the moral author of an alleged attempt against the Director of the Macao Judiciary Police. He was brought before the Judge of Criminal Prosecutions forty-eight hours later, who considered that there was no evidence linking the author to the alleged attempt, but that he was suspected of the crime of secret association. He was accordingly placed in preventive detention.

In May 1998 the author unsuccessfully challenged his detention before the High Court of Macao (Tribunal Superior de Justiça de Macao, the Supreme Court of the Territory), judgment being rendered on 21 July 1998 on the grounds that the defendant is a member of 14-K (carats) secret association.”

The trial at the Court of Generic Competence of Macao (Tribunal de Competência Genérica) against the author and nine other defendants on the charge of involvement in the crime of secret association was opened on 27 April 1999 but immediately adjourned to 17 June 1999. The Chief Judge, however, tendered his resignation and left the Territory of Macao. It is alleged that pursuant to the applicable procedure, the lawsuit should immediately have been referred to the legal substitute of the Chief Judge. Instead of following this procedure, a new judge was recruited from Portugal, who came to Macao expressly to preside over this trial, and who returned to Portugal immediately after its conclusion. It is alleged that such procedure was illegal and in breach of Art. 31.2 of Decree-Law No. 55/92/M of 18 August 1992.

The trial was successively postponed to 29 September and 11 October 1999. It is alleged that the rights of defence were violated, in particular the right to be presumed innocent, which the Chief Judge is said to have breached by expressing on different occasions, as early as the initial hearing, a pre-judgment about the authors guilt. Moreover, it is stated that the defence attorneys were initially prohibited from having any contact with their clients until the end of the production of testimonial evidence in court (a measure lifted after protests in the press). The Macao Bar Association is said to have addressed an urgent communication to the Judiciary Council of the territory complaining about the judges orders dictated into the minutes referring to the defendants as naturally dangerous and suggesting that the attorneys would intimidate the witnesses.

Eight of the ten defendants filed a petition requesting the rejection of the new Chief Judge in view of doubts as to his impartialityly, but the High Court (Tribunal Superior de Justicia de Macao), by judgement of 15 October 1999 dismissed the petition and refused to decree a suspension of the judge in question, allowing the trial to proceed. A second challenge against the judges impartiality was filed on 25 October 1999 and rejected on 29 October 1999. On this date authors counsel withdrew, arguing in a statement presented to the Secretariat of the Court that he could not continue to assure in a valid and efficient manner his clientss defence. Following the withdrawal of authors counsel, the Chief Judge appointed as official defender a young lawyer who was among the public to attend the hearing, but rejected the new lawyers request for a suspension of the hearing to allow for consultation of the files. Said newly appointed lawyer also withdrew, whereupon the Chief Judge appointed first one clerk of the court and then another, neither one of whom had the minimum conditions to assure the defence. The author was thus tried without the assistance of an attorney of record and without being offered the opportunity of appointing a new attorney.

On 29 October 1999 a third petition for the rejection of the Chief Judge was lodged, which was dismissed on 8 November 1999.

Judgment was rendered on 23 November 1999, and the author was convicted and sentenced to fifteen years of imprisonment. An appeal was filed with the Court of Second Instance (Tribunal de Segunda Instância, Case No. 46/2000), which was heard in March 2000, judgement being rendered on 28 July 2000.

Counsel states that the same matter has not been submitted to any other international procedure of investigation and settlement.

Counsel claims multiple violations of article 14 concerning the alleged denial of a fair hearing before a competent and impartial tribunal, the alleged violation of the presumption of innocence, and the alleged violation of fundamental guarantees of the defence, including access of counsel to the accused and proper representation of the accused during the trial.

In its submission of 29 June 2000, the State party refers to article 2 of Macaos Statute, pursuant to which Macao enjoyed autonomy and did not fall under the sovereignty of Portugal. It argues that whereas the application of the Covenant was extended to Macao by the Portuguese Parliament by virtue of Resolution 41/92 of 17 December 1992, no such resolution was adopted with respect to the Optional Protocol.

The State party also indicates that the Optional Protocol is not among the treaties listed in the note addressed by the Portuguese Government in November 1999 to the United Nations Secretary General concerning those treaties for which the Peoples Republic of China had agreed to assume the responsibilities of succession.

The State party quotes the text of article 1 of the Optional Protocol, indicating that Macao was not a State party to the Protocol. Accordingly, it requests the Committee to declare the communication inadmissible.

In the alternative, the State party requests that the case be declared inadmissible because, since Portugal is no longer responsible for Macao, there is no legitimate international procedure.

Moreover, the State party contends that domestic remedies have not been exhausted, since the decision on appeal is still pending. It is not relevant that the decisions concerning the petitions against the Chief Judge are final, since the exhaustion of domestic remedies should be understood as applying to the entire procedure. Moreover, the decision on appeal will no longer be the responsibility of Portugal, since it will be taken by a Court of the Macao Special Administrative Region, which is under the jurisdiction of the Peoples Republic of China.

In his comments, dated 29 September 2000, the author argues that the Optional Protocol is complementary to the Covenant and therefore its application in Macao should be deemed to have been effected by Resolution 41/92 of 17 December 1992.

Notwithstanding the transfer of administration to the Peoples Republic of China on 19/20 December 1999, it is clear that the events complained of occurred in the period when Portugal was responsible for Macao and bound by the Optional Protocol.

With regard to the alleged non-exhaustion of domestic remedies, the author contends that it is legitimate to sever the decisions concerning the impartiality of the judge from the decision on the authors guilt or innocence. It is stressed that the violations alleged were perpetrated by a court under Portuguese jurisdiction and not by the courts under the jurisdiction of the Peoples Republic of China. Moreover, the pending appeal before the Second Instance Court was finally decided on 28 July 2000.

The Second Instance Court examined the author’s allegations, inter alia, that the tribunal was neither competent nor impartial, that the Chief Judge was biased against the defendants, that the adversary principle and the principle of equality of arms were systematically violated (judgement, section. 1.5.A.) The judgement reaffirmed the competence of the tribunal of first instance and found no merit in the author’s other allegations of procedural irregularities. The author’s conviction on charges of membership in a secret association and usury was affirmed. The sentence, however, was reduced to thirteen years and ten months. T

Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

With regard to the application of the Optional Protocol to Macao during the period under Portuguese administration, until 19 December 1999, the Committee notes that the State party adhered to the Optional Protocol with effect from 3 August 1983. It further notes that the application of the Protocol cannot be based on article 10 of the Optional Protocol, since Macao was not a constituent part of Portugal after adoption of the new Constitution in 1976. It is also not to draw a positive conclusion from the Portuguese Parliament’s resolution 41/92 which formally extended the application of the Covenant to Macao, since the Covenant and the Optional Protocol are distinct treaties. in its first clause p s insofar it concerns alleged violations by Portugal of any of the rights set forth in the Covenant2

With regard to exhaustion of domestic remedies, Article 2 of the Optional Protocol states: “Subject to the provisions of article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.” (emphasis added) The implications of this provision are clear: until such time as remedies available under the domestic legal system have been exhausted an individual who claims that his or her rights under the Covenant have been violated is not entitled to submit a communication to the Committee. It is therefore incumbent on the Committee to reject as inadmissible a communication submitted before this condition has been met. And indeed it has been the practice of the Committee not to receive communications when it is abundantly clear that available domestic remedies have not been exhausted. Thus, for example, in communications involving allegations of violations of fair trial in criminal cases, the Committee does not receive and register communications when it is clear that an appeal is still pending. The problem is that in many cases it is not self-evident from the communication itself whether domestic remedies were available and if so, whether they were exhausted by the author. In such cases the Committee has no choice but to register the communication and to decide on admissibility after considering the submissions of both the author and the State party on the issue of domestic remedies. When deciding whether to reject such communications as inadmissible under article 5, para. 2 (b) of the Optional Protocol, the Committee generally follows the practice of other international decision-making bodies and examines whether domestic remedies have been exhausted at the time of considering the matter (rather than at the time the communication was submitted). The rationale of this practice is that rejecting a communication as inadmissible when domestic remedies have been exhausted at the time of consideration would be pointless, as the author could merely submit a new communication relating to the same alleged violation. It should be noted, however, that the assumption underlying this practice is that the legal standing of the State party has not changed between the date of submission and the date of consideration of the communication, and that there would therefore be no legal impediments to submission of a new communication by the author relating to the alleged violation. When this assumption is invalid, the practice becomes incompatible with the requirements of the Optional Protocol.

In the present case both the author’s claims concerning the lack of competence of the special Portuguese judge, as well as the other claims regarding alleged violations of article 14 of the Covenant in the course of the author’s trial, were raised in the appeal to the Tribunal de Segunda Instancia in Macao. This appeal had not yet been heard at the time of the submission of the communication. The judgments in this appeal and in a further appeal lodged with the Tribunal of Last Instance, were rendered on 28 July 2000 and 16 March 2001 respectively, when Macao was no longer administered by Portugal. It follows that domestic remedies had not been exhausted when the communication was submitted and that the author was therefore not entitled, under article 2 of the Optional Protocol, to submit a communication. By the time the remedies had been exhausted the author was no longer subject to the jurisdiction of Portugal and his communication was inadmissible under article 1 of the Optional Protocol.

It should further be noted that the fact that the author’s appeals were heard after Portugal no longer had jurisdiction over Macao in no way implies that these remedies ceased to be domestic remedies which had to be exhausted before a communication could be submitted against Portugal. While Macao became a special administrative region in the People’s Republic of China after submission of the communication, its legal system remained intact, and the system of criminal appeals remained unchanged. Thus there remained remedies that had to be pursued under the domestic legal system, irrespective of the State which exercised control over the territory.

In conclusion, while the Committee is of the opinion that in the period during which Portugal exercised jurisdiction over Macao after it had acceded to the Optional Protcol, individuals subject to its jurisdiction who claimed their rights under the Covenant had been violated were entitled to submit communications against Portugal, it finds that the present communication is inadmissible, under articles 2 and 5, para.2 (b) of the Optional Protocol.