CCPR/C/138/D/3214/2018

GE.23-23499 (E) 160124 250124

Human Rights Committee

Views adopted by the Committee under article 5 (4)

of the Optional Protocol, concerning communication

No. 3214/2018*, **

Communication submitted by:

Dieudonné Télesphore Ambassa Zang

(represented by counsel, Frédéric Fabre)

Alleged victim:

The author

State party:

Cameroon

Date of communication:

29 June 2017 (initial submission)

Document references:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State party on 30 July 2018 (not issued in

document form)

Date of adoption of Views:

14 July 2023

Subject matter:

Right to a fair trial

Procedural issues:

State party’s failure to cooperate

Substantive issues:

Right to an effective remedy; right to a fair trial

Articles of the Covenant:

2 (3) and 14 (1), (2), (3) and (5)

Articles of the Optional Protocol:

2, 3 and 5 (2)

1.

The author of the communication is Dieudonné Télesphore Ambassa Zang, a national

of Cameroon born on 27 November 1957 in Benebalot, Cameroon. He claims that the State

party has violated his rights under article 14 (1), (2), (3) and (5), read in conjunction with

article 2 (3) of the Covenant. The Optional Protocol entered into force for the State party on

27 September 1984. The author is represented by counsel.

Facts as submitted by the author

2.1

Between August 2002 and December 2004, the author was Minister of Public Works.

In 2007, he was elected to the Cameroonian National Assembly.

2.2

On 10 July 2009, as part of Opération Épervier (Operation Sparrowhawk), a

large-scale judicial anti-corruption operation aimed at combating the misappropriation of

public funds, the Public Prosecutor requested the lifting of the author’s parliamentary

* Adopted by the Committee at its 138th session (26 June–26 July 2023).

** The following members of the Committee participated in the examination of the communication:

Farid Ahmadov, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders, Mahjoub

El Haiba, Carlos Gómez Martínez, Laurence R. Helfer, Bacre Waly Ndiaye, Hernán Quezada

Cabrera, José Manuel Santos Pais, Soh Changrok, Tijana Šurlan, Kobauyah Tchamdja Kaptcha,

Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu.

United Nations

CCPR/C/138/D/3214/2018

International Covenant on

Civil and Political Rights

Distr.: General

6 December 2023

English

Original: French

CCPR/C/138/D/3214/2018

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GE.23-23499

immunity from the National Assembly in order to prosecute him in connection with an

investigation into the misappropriation of public funds when he was Minister of Public

Works, from 24 August 2002 to 8 December 2004. The charges were based on reports of

audits carried out between 2006 and 2007 by auditors from the Ministry Delegate of the

Office of the President.

2.3

On 14 July 2009, an initial debate took place within the Bureau of the National

Assembly to examine the request to lift the author’s parliamentary immunity, without

reaching a consensus insofar as some parliamentarians remained concerned about the speed

of the procedure. The decision was postponed to a later date so that the members of the

Bureau could better study the case file. The author states that he was unable to take part in

the debate, answer questions or defend himself against the accusations of misappropriation

of public funds, which were unclear. He also notes that the judicial authorities did not even

accuse him of personally profiting from the alleged acts. During the discussion,1 the deputies

noted that an automatic lifting of parliamentary immunity at the simple request of the judicial

authority, without a serious examination of the facts, was precisely a negation of the principle

of parliamentary immunity. If the waiver of immunity were to become a mere formality, it

would be useless and would no longer serve any purpose. Other deputies noted that the

author’s election against an opponent who was close to the presidency had created personal

animosity towards him. Some deputies were of the opinion that the author was the victim of

a political witch-hunt and recalled other cases in which deputies had had their immunity lifted

and had been unable to sit in the parliament because they had been detained without trial.

According to the author, in the weeks that followed, newspapers close to the Government

launched a campaign accusing him of misappropriating public funds.2

2.4

Despite the reluctance of some deputies to lift parliamentary immunity on the grounds

that the accusation was excessively unclear, and, according to the author, following a press

campaign against him, and fearing of reprisals, the Bureau of the National Assembly

unanimously decided on 7 August 2009 to lift the author’s parliamentary immunity. The same

day, the President of the National Assembly issued an order lifting parliamentary immunity.

The author, believing that he would not receive a fair trial and that he was at risk of arbitrary

detention and cruel, inhuman or degrading treatment, fled to France, where he obtained

refugee status.3 From 2010 to 2014, the author brought his case on his trial and the lifting of

his parliamentary immunity before the Committee on the Human Rights of Parliamentarians

and the Governing Council of the Inter-Parliamentary Union (IPU). The author points out

that these bodies are not dispute resolution bodies, but more akin to forums for negotiation

to prevent irreparable consequences, while the final decision rests with the authorities of the

State which is the subject of allegations.

2.5

On 13 June 2011, the author received an email in which a man claimed to have

gang-raped his common-law wife and mother of the author’s children and made threats in

connection with the visit of the delegation of the Committee on the Human Rights of

Parliamentarians from 24 to 27 May 2011 and future similar visits, as well as in connection

with the complaint the author had submitted to the Inter-Parliamentary Union. No legal action

has been taken against the email’s author.4

2.6

Between 7 August 2009 and 10 June 2013, no prosecution proceedings were initiated

against the author. This time frame demonstrates that the lifting of parliamentary immunity

was of no practical use in the criminal prosecution procedure, since the judicial authorities,

if they had been mindful of their duties, could have waited until the end of the author’s term

of office, in 2012. Had the author not fled to France, he would have been waiting in prison

the entire time for the investigation to begin.

1 See the “full minutes of the meeting” of 14 July 2009, attachment 12.

2 The author attaches to the case file the record of the discussion held by the Bureau of the National

Assembly on 7 August 2009, in which references are made to information reported in the media.

3 The author does not give the exact date but attaches to the case file a refugee travel document issued

by the French Government on 7 June 2017.

4 In the resolution adopted unanimously on 27 March 2013 by the IPU Governing Body, the State party

provided no response to a request for information on the investigation into the gang rape of the

author’s common-law wife.

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2.7

On 11 June 2013, the Public Prosecutor signed an indictment initiating proceedings

with the examining magistrate. On 30 October 2013, the examining magistrate of the Special

Criminal Court established by Act No. 2011/028 of 14 December 2011 issued an international

arrest warrant against the author, valid as an indictment and for questioning on the merits.

The investigation took place without the author being heard, as he had fled to France, and the

explanations he provided via his lawyer were not considered. According to the author, only

the explanations of his co-defendants and persons in custody were considered.

2.8

On 9 June 2014, the examining magistrate of the Special Criminal Court partially

dismissed the case in favour of the author, as some of the alleged acts had taken place when

he was no longer Minister of Public Works, and referred the case back to the Special Criminal

Court. There has been no accusation of profiting from the acts in question by him, his family,

his party or any third party.5 On 12 June 2015, as the Special Criminal Court refused to hear

his lawyer during the proceedings and hearings, the author sent a brief by bailiff to present

his claims and his defence. In it, he complained of the gang rape of his common-law wife

and explained that he had committed no administrative procedural error and had merely

followed the advice of the administrative commissions. He also pointed to the fact that the

special court had no competence to deal with the supposed allegations, which did not

constitute crimes of misappropriation of public funds.6 In his brief, the author recalled that

an independent court in a democratic society could not condemn him for the work carried out

on the Wouri bridge. Thanks to his diligence, on 13 July 2010 the State party had been able

to win an arbitration case before the International Chamber of Commerce in Paris.7

2.9

On 16 June 2015, without examining the arguments presented by the author or hearing

his counsel, the Special Criminal Court sentenced the author, in absentia, to life imprisonment

for misappropriation of public funds, deprived him for life of his civil and political rights and

ordered him to pay 5,126,180,438 CFA francs (approximately €7.6 million) in damages and

interest and, jointly and severally with another defendant, 694,405,000 CFA francs

(approximately €1 million).8

2.10

On 19 June 2015, the author’s lawyer filed an appeal in cassation with the specialized

section of the Supreme Court. On 3 September 2015, the author’s lawyer filed further

cassation pleadings.9 The author did not receive notification of his appeal to the Supreme

Court but received a brief from the representative of the State against his further pleadings;

the brief stated that the author’s appeal should be declared inadmissible because in

accordance with article 12 of Act No. 2012/011 of 16 July 2012 amending and supplementing

Act No. 2011/028 of 14 December 2011, which established the Special Criminal Court,

“Cassation appeals shall be lodged within 48 hours of: the pronouncement of the

contradictory decision; or of notification to the defaulting party of the default judgment”. As

far as the author was concerned, the judgment of the Special Criminal Court had not been

notified, so his appeal was premature and thus inadmissible.

2.11

On 20 December 2015, or six months after the author’s appeal, the Supreme Court

had not issued a decision. According to article 13 of Act No. 2011/028 of 14 December 2011,

it has a maximum of six months to do so. Consequently, the author considers that he has been

the victim of a denial of justice.

Complaint

3.1

The author claims a violation by the State party of article 2 (3) and article 14 (1), (2),

(3) and (5) of the Covenant.

3.2

The author recalls the Committee’s general comment No. 32 (2007) on article 14,

according to which equality before courts and tribunals also requires that similar cases are

dealt with in similar proceedings. If, for example, exceptional criminal procedures or

5 See the return and partial dismissal order of 9 June 2014, attachment No. 14 in the case file.

6 See the author’s memorandum of 12 June 2015 to the President of the Special Criminal Court,

attachment No. 15 in the case file.

7 See attachment No. 16 in the case file.

8 See attachment No. 4 in the case file.

9 See attachment No. 6 in the case file.

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specially constituted courts or tribunals apply in the determination of certain categories of

cases, objective and reasonable grounds must be provided to justify the distinction.10 The

Committee also noted that the trial of civilians in military or special courts may raise serious

problems as far as the equitable, impartial and independent administration of justice is

concerned. Therefore, it is important to take all necessary measures to ensure that such trials

take place under conditions which genuinely afford the full guarantees stipulated in article

14.11

3.3

In this case, the author considers that the court is a special court consisting of judges

selected specifically to avoid offending the authorities’ sensibilities and who are applying a

special procedure12 with an arbitrary assessment of the evidence. According to the author,

there was no objective reason to create a special court under Operation Sparrowhawk other

than to infringe upon the fundamental rights of the accused. The fact that the President of the

court worked for the President of the Republic for more than a decade demonstrates the

relationship of subordination to the President of the Republic. As a result, the court is

apparently not impartial, which constitutes a violation of article 14 (1) of the Covenant.

3.4

The author also considers that he is the victim of a violation of article 14 (1) of the

Covenant insofar as he considers that he is the victim of an arbitrary conviction, as the Special

Criminal Court adopted the prosecution’s charges without examining and discussing them

prior to his conviction. It is nonetheless for the judge not only to consider the prosecution’s

submissions, but even in the absence of the accused, to compare them also with the case file

and examine their relevance before handing down a sentence. In this case, three of the

defendants were acquitted after their lawyers pleaded their case; the author, deprived of his

right of defence, did not benefit from a fair and impartial examination by the special court.

3.5

The author considers that the information provided by the pro-Government media, to

which the deputies of the National Assembly’s Bureau referred at their meeting on 7 August

2009, together with the media pressure that continued during his trial, influenced the

Bureau’s decision to lift his parliamentary immunity and also his conviction by the special

court, which constitutes a violation of the presumption of innocence protected under

article 14 (2) of the Covenant.

3.6

Furthermore, according to the author, there were two undue delays in the criminal

proceedings: the first during the investigation, between 7 August 2009, the date on which the

lifting of the author’s parliamentary immunity took effect, and 11 June 2013, the date of the

opening statement for the prosecution. It took 3 years, 10 months and 3 days to investigate

the alleged facts against the author. This particularly long wait rendered the waiver of

immunity moot, as the author’s term of office had ended in 2012. The second delay was from

the author’s appeal in cassation to the date of submission of the present communication. The

author considers that these delays constitute a violation of article 14 (3) (c) of the Covenant.

3.7

The author also considers that the denial of his request to be represented by a lawyer

owing to the fact that he fled constitutes a violation of his right to have the assistance of

counsel of his own choosing, protected by article 14 (3) (d) of the Covenant. The author

recalls the Committee’s general comment No. 32 (2007), according to which in the case of

trials in absentia, article 14 (3) (a) of the Covenant requires that, notwithstanding the absence

of the accused, all due steps have been taken to inform accused persons of the charges and to

notify them of the proceedings.13 This obligation to notify accused persons who will be tried

in absentia is not a formal requirement of principle, but has the practical advantage of

enabling them to prepare their defence, which is to be presented by counsel at the hearing. In

this case, the judicial authorities invoked article 349 of the Criminal Procedure Code to

eclipse the obligations under the Covenant and thus refuse to listen to the defence put forward

10 Human Rights Committee, general comment No. 32 (2007), para. 14.

11 Ibid., para. 22.

12 For example, article 11 of Act No. 2011/028 of 14 December 2011 establishing the Special Criminal

Court stipulates as follows: “(1) The [Special Criminal] Court shall rule in the first and last instance.

Its decisions shall be exclusively subject to appeal on points of law or procedure. (2) Appeals by the

Public Prosecution Service shall relate to both facts and points of law. (3) Appeals by the other parties

shall relate only to points of law. [...]”.

13 Human Rights Committee, general comment No. 32 (2007), para. 31.

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by the absent defendant’s counsel. This approach runs counter to the Committee’s findings

that it cannot be left to the sole discretion of domestic law to determine the essential content

of Covenant guarantees.14

3.8

In this case, given the political circumstances, and the conditions of the lifting of

parliamentary immunity, which was only intended to put the author in arbitrary detention,

the author chose to seek refuge in France so as to obtain political refugee status. However,

he did not forfeit his right to defend himself before the examining magistrate and the Special

Criminal Court; he sent a Cameroonian lawyer, whom the examining magistrate and then the

court refused to hear. The author was thus unable, despite his wishes, to present his defence.

The President of the court also confirmed during the mission of the Committee on the Human

Rights of Parliamentarians that the author’s lawyer was not able to take part in the

proceedings in any respect and that the author was not allowed to be represented by a

lawyer.15

3.9

Faced with the refusal of the Special Criminal Court to hear his lawyer, the author

sent a brief, which was not considered by the special court. The sentences – handed down

without consideration of the arguments put forward by his lawyer – are extremely severe,

involving life imprisonment, forfeiture for life of his civil and political rights and a fine of

some 5 billion CFA francs. This same situation has also given rise to an inequality of arms

between the prosecution and the defence, in violation of article 14 (3) (e) of the Covenant.

3.10

The author considers that article 14 (3) (e) of the Covenant was also violated in that

the author, through his lawyer, was unable to question the witnesses summoned by the Public

Prosecutor or to question the co-defendants, either during the investigation proceedings or

before the Special Criminal Court.

3.11

The author further alleges that recourse to the Supreme Court is doomed to failure,

since the State could avail itself of Act No. 2012/011 of 16 July 2012, which opens the right

to refer a case to the Supreme Court only after the author has been notified of the judgment

of the Special Criminal Court. In this case, the author considers that the notification provided

for by the Act is impossible, since he was forced to take refuge in France due to inhuman and

degrading acts and the risk of arbitrary detention for life.

3.12

Consequently, even if the Supreme Court were to issue a ruling, it would dismiss the

author’s appeal as premature.16 Act No. 2012/011 severely limits the conditions under which

a case can be brought before the Supreme Court and imposes onerous and rigorous formalities

on the ability to do so, even if fundamental rights have been violated. In the author’s view,

the purpose of this law is not to allow for the proper administration of justice, but solely to

prevent convicted persons who have no right of appeal from appealing against a decision

handed down by a special court. Moreover, the possibility of cassation is effectively and

concretely impossible, since Act No. 2011/028 of 14 December 2011 establishing the Special

Criminal Court does not provide for the consequences of a possible case brought in

cassation.17 This so-called appeal therefore does not constitute a second instance and reveals

a violation of article 14 (5) of the Covenant. Moreover, the fact that there is no way to appeal

against the decision to waive parliamentary immunity also constitutes a violation of article 2

(3) and article 14 (5) of the Covenant.

State party’s failure to cooperate

4.

On 30 July 2018, 4 July 2019, 20 August 2020 and 18 July 2022, the Committee

requested the State party to submit its observations on the admissibility and merits of the

14 Ibid., para. 4.

15 See the report and decisions of the IPU Committee on the Human Rights of Parliamentarians.

16 At the time of the referral of the case to the Committee, the Supreme Court had still not ruled on the

author’s appeal.

17 Article 11 of Act No. 2011/028 of 14 December 2011 merely stipulates as follows: “(1) The [Special

Criminal] Court shall rule in the first and last instance. Its decisions shall be exclusively subject to

appeal on points of law or procedure. (2) Appeals by the Public Prosecution Service shall relate to

both facts and points of law. (3) Appeals by the other parties shall relate only to points of law. (4) In

cassation, the Supreme Court shall assume cognizance of the case and issue a decision.”

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communication. The Committee regrets the State party’s failure to provide any information

with regard to the admissibility or the substance of the author’s allegations. It recalls that

article 4 (2) of the Optional Protocol obliges States parties to examine in good faith all

allegations brought against them and to make available to the Committee all the information

at their disposal. In the absence of a reply from the State party, due weight must be given to

the author’s allegations, to the extent that they are substantiated.

Issues and proceedings before the Committee

Consideration of admissibility

5.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 97 of its rules of procedure, whether the communication is

admissible under the Optional Protocol.

5.2

The Committee has ascertained, as required under article 5 (2) (a) of the Optional

Protocol, that the same matter is not being examined under any other procedure of

international investigation or settlement.

5.3

In light of the author’s arguments concerning the ineffectiveness of domestic remedies

and the lack of cooperation from the State party, the Committee considers that the provisions

of article 5 (2) (b) of the Optional Protocol do not preclude the examination of the present

communication.

5.4

The Committee notes that the author claims a violation of article 2 (3) of the Covenant

without, however, providing any details, and it recalls that the provisions of this article lay

down general obligations for States parties which cannot give rise, when invoked separately,

to a claim in a communication.18 It finds that the claim is inadmissible under article 3 of the

Optional Protocol.

5.5

The Committee takes note of the author’s claims under article 14 (2) of the Covenant

regarding the violation of the right to the presumption of innocence. It also takes note of the

author’s claims concerning the media campaign against him at the time of the discussions on

the lifting of his parliamentary immunity. It considers, however, that in the facts presented

by the author, he has not sufficiently substantiated his claims of a violation of his right to the

presumption of innocence. The Committee thus concludes that the claims relating to

article 14 (2) of the Covenant should be found inadmissible under article 3 of the Optional

Protocol.

5.6

Regarding the author’s claim that the absence of a domestic remedy against a decision

to waive parliamentary immunity also constitutes a violation of article 14 (5) of the Covenant,

the Committee points out that this provision does not apply to proceedings concerning civil

rights and obligations19 or to any other proceedings which are not part of the criminal appeal

system, such as constitutional motions,20 and declares in the present case that this claim is

inadmissible.

5.7

The Committee considers that the author has sufficiently substantiated the remaining

claims under articles 14 (1), (3) and (5) of the Covenant for the purposes of admissibility. It

therefore declares the communication admissible and proceeds with its consideration of the

merits.

Consideration of the merits

6.1

In accordance with article 5 (1) of the Optional Protocol, the Committee has

considered the communication in the light of all the information made available to it by the

author, while regretting that the State party has not shared its observations with it.

18 Poliakov v. Belarus (CCPR/C/111/D/2030/2011), para. 7.4; Castañeda v. Mexico

(CCPR/C/108/D/2202/2012), para. 6.8; A.P. v. Ukraine (CCPR/C/105/D/1834/2008), para. 8.5; and

Peirano Basso v. Uruguay (CCPR/C/100/D/1887/2009), para. 9.4.

19 Human Rights Committee, I.P. v. Finland communication No. 450/1991, para. 6.2.

20 Human Rights Committee, Douglas et al. v. Jamaica, communication No. 352/1989, para. 11.2.

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6.2

Regarding the claim that the Special Criminal Court is an extraordinary court that does

not uphold the rights of the defence, the Committee takes note of the author’s allegations

about the violation of the principles of impartiality and of equality of arms, and about

breaches of the rights of the defence. It recalls that a trial before courts other than the ordinary

courts is not necessarily, per se, a violation of the entitlement to a fair hearing21 and that a

State party’s decision to try a person before a special court must be based on reasonable and

objective grounds.22 In this case, the Committee notes that (a) this court was established by

the legislative branch through Act No. 2011/028 of 14 December 2011, as supplemented by

Act No. 2012/011 of 16 July 2012; (b) the Acts establish the court’s competence rations

materiae, in other words to adjudicate offences related to the misappropriation of public

funds above a set amount, as defined in the Penal Code; and (c) for the most part, the relevant

rules of procedure are contained in the Criminal Procedure Code. The Committee observes

that Acts No. 2011/028 and No. 2012/011 do not themselves create any new offences or

penalties. However, it takes note of the author’s assertion that a general climate of suspicion

of lack of independence and impartiality hangs over the Special Criminal Court, particularly

with regard to its President, who worked for the President of the Republic for over a decade.

6.3

In line with its general comment No. 32 (2007), the Committee recalls that the

Covenant does not prohibit the trial of civilians in special courts, but it requires that such

trials are in full conformity with the requirements of article 14 and that its guarantees cannot

be limited or modified by virtue of the special character of the court concerned. It is important

to take all necessary measures to ensure that such trials take place under conditions which

genuinely afford the full guarantees stipulated in article 14.23 In this case, the author raises

numerous irregularities which the State party, in the absence of observations, does not contest.

On the basis of this information, the Committee considers that the State party has violated

the provisions of article 14 (1) of the Covenant.

6.4

Concerning the author’s claims that he is a victim of arbitrary conviction, as the

Special Criminal Court took up the charges filed by the prosecution and did not even consider

or discuss them before convicting him, the Committee recalls that it is generally for the courts

of States parties to the Covenant to review facts and evidence, or the application of domestic

legislation, in a particular case, unless it can be shown that such evaluation or application is

clearly arbitrary or amounts to a manifest error or denial of justice, or that the court otherwise

has violated its obligation of independence and impartiality. 24 In the absence of any

observations from the State party, the Committee considers, on the basis of the information

at its disposal, that the State party, by failing to take into consideration the documents and

arguments provided by the defence and by basing its conviction solely on the prosecution’s

submissions, has violated its obligations under article 14 (1) of the Covenant.

6.5

With regard to the claim of undue delay in the proceedings, the Committee takes note

of the author’s allegations that there were two undue delays in the criminal proceedings: (a)

the first during the investigation, between 7 August 2009, the date on which the lifting of the

author’s parliamentary immunity took effect, and 11 June 2013, the date of the opening

statement for the prosecution, which means that it took 3 years, 10 months and 3 days to

investigate the alleged facts against the author, a particularly long wait which rendered the

waiver of immunity moot, as the author’s term of office had ended in 2012; and (b) since the

filing by the author of an appeal in cassation on 19 June 2015, as the appeal has been pending.

The Committee recalls that, under article 14 (3) (c) of the Covenant, everyone has the right

to be tried without undue delay. 25 However, the State party has offered no explanation

justifying the fact that the procedure has still not ended, given its lack of cooperation with

the Committee. In the light of the information submitted to it and in the absence of an

21 Kavanagh v. Ireland (CCPR/C/71/D/819/1998), para. 10.1.

22 Ibid., para. 10.3.

23 Human Rights Committee, general comment No. 32 (2007), para. 22. See also Awono v. Cameroon

(CCPR/C/123/D/2660/2015), para. 9.10.

24 Riedl-Riedenstein et al. v. Germany (CCPR/C/82/D/1188/2003), para. 7.3; Arenz et al. v. Germany

(CCPR/C/80/D/1138/2002), para. 8.6; and Schedko v. Belarus (CCPR/C/77/D/886/1999), para. 9.3.

25 See, in particular, Kandem Foumbi v. Cameroon (CCPR/C/135/D/2825/2016), para. 7.3; and Taright

et al. v. Algeria (CCPR/C/86/D/1085/2002), para. 8.5.

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explanation by the State party, the Committee concludes that there has been a violation of

article 14 (3) (c) of the Covenant.

6.6

The Committee recalls that under article 14 (3) (d), everyone is entitled to be tried in

his or her presence and to defend himself or herself in person or through legal assistance.

This provision and other requirements of due process enshrined in article 14 cannot be

construed as invariably rendering proceedings in absentia impermissible, irrespective of the

reasons for the accused person’s absence.26 Trials in absentia are, in fact, authorized in certain

cases, in the interests of the proper administration of justice. Nevertheless, the exercise of the

rights provided for in article 14 of the Covenant presupposes that all necessary steps are taken

to inform the accused of the charges against them and to notify them of the proceedings

against them.27 In the case of a trial in absentia, notwithstanding the absence of the accused,

the necessary steps must be taken to notify the accused or the accused’s family of the date

and place of the trial and to ask the accused to attend. Otherwise, in the absence of the time

and facilities necessary for the preparation of their defence (art. 14 (3) (b)), the accused would

in particular be unable to arrange for their defence to be conducted by counsel of their own

choosing (art. 14 (3) (d)) or to question the witnesses against them or have them questioned

and to call and question witnesses for the defence (art. 14 (3) (e)).28 In this case, the author

was informed of the proceedings against him and of the date and place of the trial. However,

fearing arbitrary detention, he decided to take refuge in France. He did not, however, waive

his right to defend himself and to request the presence of his lawyer at the hearings. The

Committee considers, in the absence of any observations from the State party, that the

rejection of the author’s request to be represented by a lawyer before the examining

magistrate and at his trial before the Special Criminal Court, and the failure to take into

account the author’s brief sent to the court, constitute a violation by the State party of the

author’s right to the assistance of counsel of his own choosing in accordance with article 14

(3) (d) of the Covenant; they also constitute a violation of the principle of equality of arms

between the prosecution and the defence, in application of article 14 (3) (e) of the Covenant,

as the author was denied the means of defence and the opportunity to question witnesses at

his trial.

6.7

Concerning the allegation that the appeal to the Supreme Court would be doomed to

failure since the State could avail itself of Act No. 2012/011 of 16 July 2012, which opens

the right to refer the case to the Supreme Court only after the author has been notified of the

Special Criminal Court’s judgment, and taking into account the fact that, to date, the Supreme

Court has still not issued a ruling, the Committee considers, in the absence of any

observations from the State party, that the latter has violated the author’s rights under article

14 (5) of the Covenant, in that he has not had the right to have his conviction and sentence

reviewed by a higher tribunal. Furthermore, Act No. 2011/028 of 14 December 2011

establishing the Special Criminal Court, by stipulating that the court is to rule in first and last

instance and that its decisions may be subject to appeal by the Public Prosecution Service on

facts and points of law while appeals by the other parties may address only points of law, is

contrary to article 14 (5) of the Covenant.

7.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that

the facts before it disclose a violation by the State party of article 14 (1), (3) (c), (d) and (e)

and (5) of the Covenant.

8.

In accordance with article 2 (3) (a) of the Covenant, the State party is under an

obligation to provide the author with an effective remedy. This requires it to make full

reparation to individuals whose Covenant rights have been violated. The Committee

recognizes the important and legitimate objective of combating corruption in the State party,

but it also wishes to underline that such efforts must respect procedural rules and the right to

a fair trial. Accordingly, the State party is required to take the necessary steps to: (a) provide

the author with adequate compensation for its violation of his right to a fair trial; and (b)

review the conviction and sentence handed down against the author, in accordance with the

26 Human Rights Committee, Mbenge v. Zaire, communication No. 16/1977, para. 14.1.

27 Human Rights Committee, general comment No. 32 (2007), para. 31. See also Pichardo Salazar v.

Bolivarian Republic of Venezuela (CCPR/C/132/D/2833/2016), para. 7.3.

28 Mbenge v. Zaire, para. 14.1.

CCPR/C/138/D/3214/2018

GE.23-23499

9

procedural safeguards established by the Covenant. The State party is also under an

obligation to take steps to prevent similar violations in the future.

9.

Bearing in mind that, by becoming a party to the Optional Protocol, the State party

has recognized the competence of the Committee to determine whether there has been a

violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has

undertaken to ensure to all individuals within its territory and subject to its jurisdiction the

rights recognized in the Covenant and to provide an effective and enforceable remedy when

it has been determined that a violation has occurred, the Committee wishes to receive from

the State party, within 180 days, information about the measures taken to give effect to the

present Views. The State party is also requested to publish the present Views and disseminate

them widely in the official languages of the State party.