Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, LIBYA; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.25-06659 (E) 270825 270825
Human Rights Committee
Views adopted by the Committee under article 5 (4) of the
Optional Protocol, concerning communication
No. 3324/2019*, **, ***
Communication submitted by:
Urszula Saad (represented by counsel, Mateusz
Romowicz)
Alleged victim:
The author’s deceased husband
State Party:
Libya
Date of communication:
26 June 2018 (initial submission)
Document references:
Decision taken pursuant to rule 92 of the
Committee’s rules of procedure, transmitted to
the State Party on 19 March 2019 (not issued in
document form)
Date of adoption of Views:
24 March 2025
Subject matter:
Arbitrary deprivation of life
Procedural issues:
Admissibility – exhaustion of domestic
remedies; lack of substantiation
Substantive issues:
Right to life; freedom from torture or cruel,
inhuman or degrading treatment or punishment;
arbitrary arrest and detention; conditions of
detention; interference with family life; right to
an effective remedy
Articles of the Covenant:
2 (3), 6 (1), 7, 9 (1)–(5), 10 (1) and 17
Articles of the Optional Protocol:
2 and 5 (2)
1.
The author of the communication is Urszula Saad, a national of Libya, born in Poland
on 7 August 1964. She submits the communication on behalf of her deceased husband Al
Malbrouk Khalifa Saad Bilkhair,1 a national of Libya born in Tunisia on 1 January 1958, and
on her own behalf. She claims a violation of her husband’s rights under articles 2 (3), 6 (1),
* Adopted by the Committee at its 143rd session (3–28 March 2025).
** The following members of the Committee participated in the examination of the communication:
Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders,
Mahjoub El Haiba, Laurence R. Helfer, Konstantin Korkelia, Dalia Leinarte, Bacre Waly Ndiaye,
Hernán Quezada Cabrera, Akmal Saidov, Ivan Šimonović, Soh Changrok, Teraya Koji, Hélène
Tigroudja, and Imeru Tamerat Yigezu.
*** An individual opinion by Committee member Rodrigo A. Carazo (partially dissenting) is annexed to
the present Views.
1 Some transcripts also use the last name “Belkheir” or “Bakhir”.
United Nations
CCPR/C/143/D/3324/2019
International Covenant on
Civil and Political Rights
Distr.: General
11 August 2025
Original: English
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7, 9 (1)–(5), 10 (1) and 17 of the Covenant. The Optional Protocol entered into force for the
State Party on 16 August 1989. The author is represented by counsel.
Facts as submitted by the author
2.1
The author and her husband have eight children. After graduating from a Polish naval
academy, her husband was employed as a pilot engineer with the rank of lieutenant in the
Navy, with the Libyan Armed Forces, under the Ministry of Defence. He was killed in March
2013 in Tripoli.
2.2
A few months before his death, the author’s husband had received a phone call from
the Information and Documentation Office, which was run by the 17th February Brigade.2
He was asked to come to testify as an eyewitness on a matter related to his work and position
as a member of the Navy.3 As soon as he arrived at the Information and Documentation
Office, he was arrested. He was detained for a period of 17 days; initially for 3 days at the
Information and Documentation Office and then for 14 days on the Security Reinforcement
(Battalion 11) premises. He was freed after handing over his telephone, his passport, his son’s
passport 4 and a copy of his personal identification card but was required to call the
Information and Documentation Office twice a week. This went on for three months.
2.3
On 23 February 2013, the author’s husband was again asked to report to the
Information and Documentation Office. When he arrived, he was informed that a letter had
been received from the Mitiga Airbase stating that he was wanted by the Public Prosecutor.
The author’s husband was handed over to a battalion stationed at the Mitiga Airbase,5 where
he was detained for 10 days. He did not have access to a lawyer and was not allowed any
visitors.
2.4
On 9 March 2013, a body was found on a road next to the airbase with his hands
shackled behind his back. Death was estimated to have occurred the previous night, on
8 March 2013. On 11 March 2013, relatives identified the body as that of the author’s
husband. He had been shot six times in the chest. A member of the battalion6 – later identified
as Suleiman Mohammed Ahmed Turki – told the relatives that he had committed the crime
on his own initiative, without the knowledge or on the instructions of the battalion.7
2.5
An investigation into the murder was initiated by the Public Prosecutor. The case was
submitted to the Criminal Chamber of the District Court of the East of Tripoli for criminal
prosecution of the accused, Suleiman Mohammed Ahmed Turki. In the absence of the
accused, on 11 June 2013, the District Court of the East of Tripoli referred the case to the
Court of Appeal in Tripoli for trial, in accordance with the referral and indictment decision,
and a hearing was scheduled for 7 October 2013. The hearing had to be postponed as the
accused was not present. Owing to the failure to appear of the accused, on 11 April 2016, the
Fifth Court (Criminal Chamber) of the Court of Appeal referred the case to the Public
Prosecutor, who issued an arrest warrant against the accused.8 The accused did not appear
and was not brought before any authority. The author’s daughter urged the Public Prosecutor
to take further procedural steps, including arresting the accused and transferring the file to
2 As confirmed by Mr. Ahmed Arifi (Abu Hammam), located in Hai Damascus, Tripoli. The author
stated that the Naval Department had no information on this call.
3 The victim was called by Lieutenant Colonel Ahmed Sufrani of the security office at Abusetta Naval
Base.
4 No further information is available.
5 The author has submitted that the battalion commander’s name was Yusuf Albooni. The background
report by the United Nations Support Mission in Libya, (“Torture and deaths in detention in Libya”,
2013, p. 4) indicates that the Mitiga Air base was, at the time of events, under the authority of the
Supreme Security Committee, under the aegis of the State security organs, including the Ministry of
Defence.
6 The author submitted that the person who confessed to the murder was a member of the Supreme
Security Committee.
7 The perpetrator was identified in the documents of criminal case No. 137/2013 brought before the
District Court of the East of Tripoli and case No. 1955/2013 brought before the Court of Appeal of
Tripoli, as attached to the case file.
8 No further information has been provided on the developments in the criminal proceedings between
11 June 2013 and 11 April 2016.
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the Fifth Court of the Court of Appeal for trial proceedings. However, after further inquiries
by the Public Prosecutor on 12 June and 2 October 2017, and by the Court on 3 October 2017
(including the author’s daughter’s applications), the Court of Appeal was informed by the
Civil Registry Office in Tripoli, on 9 October 2017, that the accused had been killed on
20 January 2017. 9 On 20 November 2017, the Court of Appeal, following the hearing,
confirmed the death of the accused and discontinued the case, pursuant to article 105 of the
Penal Code. The decision on remission of the offence owing to the death of the accused was
adopted by the Court on 4 December 2017.
2.6
The author submits that all available remedies in the context of the criminal
proceedings have been exhausted. She submits that initiating civil proceedings will not
effectively address the claims in the communication and that, in any event, the proceedings
have already been unduly prolonged.
Complaint
3.1
The author claims that the State Party’s authorities violated her husband’s rights under
article 2 (3) of the Covenant by failing to hold anyone of a higher rank accountable for his
death and by failing to ensure that the proceedings were not unduly prolonged.
3.2
The author also claims that her husband was arbitrarily deprived of his life, in
violation of his rights under article 6 of the Covenant. She claims that his death is attributable
to the State Party since he was killed by a person acting in an official capacity. The author
notes that the main subject of the complaint is the lack of efficiency of the Libyan justice
system in providing the family with an effective remedy following the death of the author’s
husband. The author alleges that she suffered both material and moral harm because her
husband was the sole breadwinner and an emotional support to the family.
3.3
The author claims that her husband was detained in cruel, degrading and unsanitary
conditions10 and was subjected to torture, in violation of his rights under article 7 of the
Covenant. She asserts that photographs, corroborated by a medical report, indicate that the
bruises on her husband’s body are the result of beatings and that the signs of injury on his
left hand were made by being burnt by hot metal. In addition, the medical report indicates
that he was also shot through the palm of his hand.11
3.4
The author claims a violation of her husband’s rights under article 9 (1)–(5), as her
husband was not informed of the reasons for his arrest or the charges against him. It is
unknown whether he was detained on a criminal charge. Furthermore, he was not informed
of his rights, did not have access to a lawyer and could not challenge the lawfulness of his
deprivation of liberty before a court.
3.5
In addition, the author claims that the treatment to which her husband was subjected
amounted to a violation of his rights under article 10 of the Covenant. In this connection, she
notes that, when his body was found, his hands were shackled behind his back.12
3.6
Lastly, the author claims a violation of her husband’s rights under article 17 of the
Covenant, as he was required to hand over his telephone, his passport, his son’s passport and
a copy of his personal identification card as a condition for his release the first time that he
was detained. In addition, she notes that, following her husband’s death, she and her family
were repeatedly threatened by telephone and ultimately had to leave the country.
Author’s further comments
4.1
On 27 August 2020 and 30 May 2022, the author submitted additional comments,
recalling the initial claims of a violation of article 2 (3), read in conjunction with articles 6,
7, 9, 10 and 17 of the Covenant. In the correspondence subsequent to the initial claims from
August and November 2018, she also made claims of a violation in conjunction with article 8.
9 Further details on the criminal proceedings are contained in paras. 6.5–6.12 below.
10 No further information provided.
11 The evidence referred to here is on file with the Secretariat.
12 No further information provided.
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4.2
The author indicates that she is submitting her claims not only on behalf of her
deceased husband and herself, but also on behalf of their children, who have the right to
appropriate compensation for the violent death and inhuman treatment of their father. The
author recalls that, given the seriousness of the case, resulting from the brutal murder of her
husband and the subsequent harassment involving threats to the lives and safety of his family,
the family was advised to leave the country.
4.3
The fact that the State is responsible for the death of the author’s husband was
confirmed by a judgment issued on 23 May 2021 by the Civil Court of First Instance of
Tripoli, a copy of which was attached to the author’s submission. The judgment summarizes
the facts preceding the murder of the author’s husband, including the perpetrator’s role as
agent of the State, since he served as a member of the Supreme Security Committee under
the authority of the Ministry of the Interior, established pursuant to its decision No. 388/2011.
The judgment determined that the defendant Suleiman Mohammed Ahmed Turki had
murdered the author’s husband.
State Party’s observations on admissibility and the merits
5.1
On 27 December 2022, the State Party submitted its observations on admissibility and
the merits of the case.
5.2
Regarding admissibility, the State Party argued, in relation to article 5 (2) (b) of the
Optional Protocol, that the author has not exhausted all available domestic remedies. With
regard to the civil claims for compensation, after the issuance of a ruling by the court of first
instance to compensate the author, the State Lawsuits Authority, as legal representative of
the Government and its agencies before the judiciary, submitted an appeal to the Tripoli Court
of Appeal against the ruling of the court of first instance.13 The Court of Appeal began hearing
the appeal in case No. 319/2019 on 19 September 2021, and the appeal proceedings were
pending at that time.
5.3
The State Party added that the author would also be entitled, following the ruling of
the Court of Appeal, to submit an appeal in cassation to the Supreme Court. Therefore, the
State Party argues that the author’s communication should be considered inadmissible due to
non-exhaustion of all available domestic remedies.
5.4
As to the merits, the State Party submitted information on the legislative framework
regarding the enjoyment of the right to life. In the criminal law context, the State, through its
public officials, is obliged to refrain from taking actions that lead to extrajudicial killing. In
addition, the State should take positive legal and procedural steps aimed at criminalizing acts
of killing outside the framework of the law. The State is also obliged to develop the legislation
necessary to punish those who commit any acts affecting the life and safety of individuals
and to provide the tools and capacity necessary to prosecute and punish the perpetrators of
such acts.
5.5
The Penal Code of Libya and other complementary laws criminalize the act of murder
and set deterrent penalties for such an offence. The Government has also established a
judicial and regulatory system that guarantees the prosecution of the perpetrators of such acts
and obliges the police and judicial authorities to investigate any incident suspected of
constituting a murder.
5.6
It appears from the author’s communication that the Libyan authorities have taken
several measures in response to the alleged murder. This was confirmed by the author, who
submitted to the Committee the ruling of the Tripoli Criminal Court in case No. 137/2013
against the accused, Suleiman Muhammad Ahmed Turki, who was charged with killing the
author’s husband. The Office of the Public Prosecutor investigated the case and concluded
that there was sufficient evidence to prosecute the accused for unlawful killing and referred
him to the Tripoli Criminal Court for trial, in accordance with the law, and requested that the
death penalty be imposed on him.
13 The State party noted that, upon the decision of the Court of Appeal, the ruling of the court of first
instance would become final and enforceable.
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5.7
Since the accused died before the criminal judgment was issued against him, the court
was obliged to rule that the criminal case had become moot. That procedure under Libyan
law is comparable with the law of other countries.
5.8
The author submitted evidence that the court had considered the claim for
compensation under case No. 429/2019, filed by the heirs of the victim, Mr. Malbrouk
Khalifa Saad’s wife Ms. Orchilla (Urszula) Khalifa Saad. The compensation claim was
submitted against the State, given that the individual who committed the act of murder was
a public official. The court accepted the author’s claim and awarded her, as the victim’s wife,
both material and moral compensation.14 The Government of Libya was obliged to pay
compensation amounting to 200,000 Libyan dinars.15
5.9
The State Party reiterated that it had taken measures both in the context of criminal
and civil laws. It prosecuted the individual who had committed the act of unlawful killing
and a court issued a civil judgment requiring the Government of Libya to pay compensation.
The Government has respected its obligations under the international human rights
conventions, including the Covenant. It did so notwithstanding the exceptional circumstances
that Libya is going through during the transitional phase, as demonstrated by the security
risks, proliferation of weapons and the weakness of the central Government and its inability
to exert full control over its territory.
Author’s comments on the State Party’s observations
6.1
On 2 June 2023, the author submitted her comments on the State Party’s observations
on admissibility and the merits. She argued that the State Party’s observations were submitted
with a delay of over three years.
6.2
As regards the State Party’s claim of her failure to exhaust domestic remedies, the
author submits that an individual should be able to assert his or her rights under the Covenant
within the national system first. The requirement to exhaust domestic remedies, however,
applies only to those remedies that are effective and available. It is left to the discretion of
the Committee to determine that resorting to domestic remedies is not necessary if
proceedings are excessive and unreasonably prolonged. Nonetheless, the Committee has not
developed a rule that would allow it to consider in abstracto what represents excessively
prolonged proceedings. Given that the domestic remedies in the present case have been
unreasonably prolonged, the author invites the Committee to disregard the State Party’s
objection on failure to exhaust domestic remedies.
6.3
The author provided details on her exhaustion of the available domestic remedies. On
9 March 2013, in the National Security Office of Souq al-Juma’a, documents presented by
the investigation authorities, including the forensic report, indicated that her husband had
been murdered by six gunshots to the chest. Additional documents presented indicated that
weapons and ammunition had been used without the permission of the relevant authorities
and that a public official of the Supreme Security Committee had abused his rank and position
in order to cause the death of the victim.
6.4
On the basis of these documents, the Public Prosecutor submitted the case to the
Criminal Chamber of the District Court of the East of Tripoli for criminal prosecution of the
accused, identified as Suleiman Mohammed Ahmed Turki, born in 1986, domiciled in Souq
al-Juma’a, and a member of the Supreme Security Committee.
14 Judgment of the court of first instance in Tripoli, dated 23 May 2021.
15 The judgment of the court of first instance in Tripoli, dated 23 May 2021, was provided as an
attachment to the communication, along with the following rulings: (a) first, a ruling that the case
against the second defendant (the Minister of Defence in his official capacity) and the fourth
defendant (the Minister of Justice in his official capacity) shall not be accepted owing to the lack of
standing; (b) second, a ruling ordering the first defendant (the Prime Minister in his official capacity),
the third defendant (the Minister of the Interior in his official capacity) and the fifth defendant (the
Minister of Finance in his official capacity) to pay the plaintiff, Salama Saad Al Malbrouk,
200,000 Libyan dinars, as compensation for material and moral harm, requiring them to pay legal
costs and rejecting all other claims.
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6.5
After consideration of the documents referred to it, on 11 June 2013, the District Court
of the East of Tripoli decided, in the absence of the accused, to refer the case to the Court of
Appeal in Tripoli in order to set a date for the hearing, which was scheduled for 7 October
2013. However, the hearing had to be postponed as the accused did not appear for the hearing.
Owing to the absence of the accused, on 11 April 2016, the Fifth Court (Criminal Chamber)
referred the necessary documentation to the Public Prosecutor, who ordered the arrest of the
accused.
6.6
Furthermore, the author indicated that her daughter had submitted an application to
the Public Prosecutor, who had been responsible for the criminal proceedings against the
individual accused of murdering her father. In that application, she requested confirmation
that an arrest warrant had been issued against the accused, that the case file had been
transmitted to the Executive Office of the Public Prosecutor, and that the complete case file
had been subsequently transferred to the Criminal Chamber of the competent court.
6.7
Upon the request of the family of the victim, the Fifth Court asked the Civil Registry
Office in Tripoli to confirm whether the accused had died and, if that was the case, to attach
a death certificate to the case file to conclude the criminal proceedings.
6.8
On 12 June 2017, the Office of the Public Prosecutor undertook a procedural enquiry
into the eventual consequences of the absence of the accused at the criminal proceedings
against him. The case documents were sent to the President of the Court of Appeal in Tripoli,
to be transferred to the Fifth Court (Criminal Chamber) to continue the proceedings together
with the Office of the Public Prosecutor.
6.9
During the hearing in the absence of the accused, held on 2 October 2017, the Office
of the Public Prosecutor, in coordination with the Fifth Court, based on the author daughter’s
application, investigated the possible death of the accused. They requested the Civil Registry
Office and the Forensic Department to indicate whether the death of the accused had been
recorded by them. 16 In the meantime, the next hearing in the case was scheduled for
20 November 2017.
6.10
On 9 October 2017, the Fifth Court (Criminal Chamber) of the Court of Appeal in
Tripoli received the death certificate of the accused from the head of the Civil Registry Office
in Tripoli. The death certificate confirmed that the accused had been shot to death on
20 January 2017.
6.11
During the hearing on 20 November 2017, the victim’s daughter requested the Fifth
Court to attach the civil registry documents to the case file as evidence for its judgment. The
Public Prosecutor added the death certificate of the accused and the letter of the head of the
Civil Registry Office in Tripoli to the case file. Based on the documentation gathered, the
Fifth Court confirmed the death of the accused beyond doubt. According to article 105 of the
Penal Code, no judgment can be rendered where the accused is dead. The criminal case
therefore became moot and was discontinued. The author therefore submits that all domestic
remedies that are available and effective have been exhausted.
6.12
In addition, the author reiterated her statement that the civil proceedings for
compensation in this case had been unduly prolonged and ineffective.17 However, the author
has taken all reasonable steps to exhaust all available domestic remedies. Moreover, threats
were issued on many occasions in an effort to stop the victim’s family from pursuing the
proceedings. The author requests that her complaint be considered admissible, since the
effectiveness of the legal system of the State Party is questionable.
16 On 3 October 2017, at the request of the Criminal Chamber, an inquiry into whether the accused had
died was sent to the Civil Registry Office.
17 The State party’s appeal has been pending since 19 September 2021 (see paras. 5.2 and 5.8 above).
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Issues and proceedings before the Committee
Consideration of admissibility
7.1
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.
7.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of international
investigation or settlement. The Committee therefore finds that it is not precluded from
considering the author’s claims by the requirements of article 5 (2) (a) of the Optional
Protocol.
7.3
The Committee notes that the State Party has objected to the claim that the author has
exhausted all available domestic remedies, as the State Party submitted an appeal against the
judgment of the court of first instance granting the author’s claim for compensation, which
was pending at the time, after which the author could submit a cassation appeal to the
Supreme Court. The Committee also notes the author’s argument that all available criminal
remedies have been exhausted because: (a) the criminal trial was discontinued when the only
person accused died before a judgment could be rendered; (b) no superior official of the
defendant was investigated or sentenced; and (c) the domestic proceedings, which started in
2013, led to the award of compensation only on 23 May 2021. The Committee further notes
that the author’s principal claim relates to identifying, investigating and criminally
sanctioning the persons responsible for the killing of her husband, which would not be
adequately addressed by the civil proceedings, and that, although she demonstrated due
diligence by also pursuing civil remedies, the civil proceedings for compensation have been
unduly prolonged, from 2013 to 2021, for an initial judgment on compensation, and were
pending upon appeal by the State Party until 2022.
7.4
The Committee recalls its jurisprudence that authors are obliged to exhaust all
domestic remedies insofar as such remedies appear to be effective in the given case and are
de facto available to the author,18 and that domestic remedies are not considered effective
where their application is unreasonably prolonged. 19 Moreover, in the case of alleged
arbitrary deprivation of life, the domestic remedies leading only to compensation cannot be
considered adequate and effective. 20 In the present case, the criminal investigations and
proceedings relating to the death of the author’s husband have not been satisfactorily resolved
for over 12 years, and the civil proceedings for compensation have been pending for more
than 5 years. The Committee concludes that this amounts to an unreasonable delay and that
it is therefore not precluded from considering the author’s claims by the requirements of
article 5 (2) (b) of the Optional Protocol.
7.5
The Committee notes that the author has not made any specific allegations under
article 8 of the Covenant in the additional comments made in 2018, nor has she presented
any facts or evidence thereunder. Accordingly, the Committee considers that this part of the
author’s claims has not been sufficiently substantiated and finds it inadmissible, pursuant to
article 2 of the Optional Protocol.
7.6
As regards article 10 (1) of the Covenant, the Committee considers that the author’s
claims have not been sufficiently substantiated as concerns the conditions of confinement of
18 See, e.g., Colamarco Patiño v. Panama (CCPR/C/52/D/437/1990), para. 5.2; P.L. v. Germany
(CCPR/C/79/D/1003/2001), para. 6.5; Riedl-Riedenstein et al. v. Germany
(CCPR/C/82/D/1188/2003), para. 7.2; Gilberg v. Germany (CCPR/C/87/D/1403/2005), para. 6.5;
Warsame v. Canada (CCPR/C/102/D/1959/2010), para. 7.4; and H.S. et al. v. Canada
(CCPR/C/125/D/2948/2017), para. 6.4. See also B.P. and P.B. v. Netherlands
(CCPR/C/128/D/2974/2017), para. 9.3.
19 The principle that unreasonably prolonged remedies need not be exhausted is reflected in the
jurisprudence that domestic remedies need not be exhausted when they are unlikely to bring effective
relief to the victim. See, e.g., Rajapakse v. Sri Lanka, communication No. 1250/2004, para. 9.4;
Sendic v. Uruguay, communication No. 63/1979, para. 17; and Del Cid Gómez v. Panama,
communication No. 473/1991, para. 5.1.
20 See Lazarov and Lazarov v. Bulgaria (CCPR/C/137/D/3171/2018), para. 7.3.
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the author’s husband, apart from being shackled, and finds this part of the claims inadmissible,
pursuant to article 2 of the Optional Protocol.
7.7
The Committee considers that the author’s claims under article 6 (1) and under
article 2 (3), read in conjunction with article 6 (1), as well as the claims under articles 7,
9 (1)–(5) and 17 of the Covenant, have been sufficiently substantiated for the purposes of
admissibility. It therefore declares those claims admissible and proceeds to their
consideration on the merits.
Consideration of the merits
8.1
The Committee has considered the communication in the light of all the information
made available to it by the parties, as provided for under article 5 (1) of the Optional Protocol.
8.2
As regards article 6 (1) of the Covenant, and article 2 (3), read in conjunction with
article 6 (1), the Committee notes that the author raises two claims: (a) that her husband was
arbitrarily deprived of his life in March 2013; and (b) that there was a lack of investigation
into the circumstances of his death. The author argued that her husband had been arrested
and detained in the Mitiga Airbase in February 2013 by troops belonging to the internal
security forces and that his death was attributable to the State Party, since he was killed by a
member of the Supreme Security Committee, acting in an official capacity.
8.3
The Committee recalls that the respect for the right to life “entails the duty to refrain
from engaging in conduct resulting in arbitrary deprivation of life”. 21 In addition, the
Committee recalls the presumption of State responsibility when the facts suggest that the
arbitrary deprivation of life occurred in unnatural circumstances.22 In the present case, it is
clear from documents presented by the investigation authorities, including the forensic report,
that: (a) the author’s husband was the victim of murder by six gunshots in the chest;
(b) weapons and ammunition were used without the permission of the relevant authorities;
and (c) a public official of the Supreme Security Committee abused his rank and position in
causing the victim’s death (para. 6.3 above). The Committee notes that the State Party does
not contest these facts; on the contrary, it reports that the Office of the Public Prosecutor
concluded that there was sufficient evidence to prosecute the accused for the capital crime of
“unlawful killing” (para. 5.6 above). The Committee also notes that the body of the author’s
husband was found on a road next to the airbase with his hands shackled behind his back
(para. 2.4 above), suggesting that he was killed while in the custody of the State Party. In
these circumstances, the Committee concludes that the State Party has violated the
substantive obligations with respect to the right to life, under article 6 (1) of the Covenant.
8.4
Regarding the lack of investigation into the death of the author’s husband, the
Committee recalls that the right to life encompasses, in addition to substantive negative and
positive obligations, positive procedural obligations. States Parties’ duty to protect the right
to life also requires them to investigate and, as appropriate, prosecute possible cases of
unlawful deprivation of life, punish those responsible and provide full reparation.23 Such
“investigations should explore, inter alia, the legal responsibility of superior officials with
regard to violations of the right to life committed by their subordinates”.24
8.5
The Committee also recalls that, under article 2 (3) of the Covenant, States Parties
should ensure that all persons have accessible, effective and enforceable remedies. It refers
to its general comment No. 31 (2004), according to which the failure by a State Party to
investigate allegations of violations could in and of itself give rise to a separate breach of the
Covenant (para. 18). In cases involving deprivations of life, a violation of article 2 (3), taken
21 Human Rights Committee, general comment No. 36 (2018), para. 7.
22 Ibid., para. 29.
23 Ibid., paras. 7, 19, 21 and 27; and Carrero and Carrero v. Bolivarian Republic of Venezuela
(CCPR/C/128/D/3018/2017), para. 9.5. See also Minnesota Protocol on the Investigation of
Potentially Unlawful Death and the report of the Special Rapporteur on extrajudicial, summary or
arbitrary executions (A/HRC/26/36), para. 46.
24 General comment No. 36 (2018), para. 27.
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in conjunction with article 6 (1), may therefore arise “as a result of a State Party’s failure to
take appropriate measures to investigate and punish or redress such a violation”.25
8.6
In the present case, the Committee observes that the author and her daughter contacted
the Public Prosecutor with a view to initiating legal proceedings concerning the death of the
author’s husband. A criminal investigation was started and a person who was identified as
the alleged perpetrator was charged and prosecuted. The State Party kept the author informed
of the investigation, including the fact that the criminal proceedings were discontinued in
November 2017 after the death of the suspect. However, the proceedings were protracted,
the State Party delayed several procedural steps of the investigation, which were taken only
upon the initiative of the author’s daughter, and the prosecution was discontinued after the
accused died prior to a judgment by the Fifth Court (Criminal Chamber) of the Court of
Appeal. In addition, the State Party has not taken any steps to investigate the criminal
responsibility of other individuals, including those in the chain of command in relation to the
accused. As a result, no person has been held to account for the murder of the author’s
husband. In these circumstances, the Committee finds that the State Party has violated
article 6 (1) of the Covenant, and article 2 (3), read in conjunction with article 6 (1).26
8.7
As regards the claim under article 7, the Committee notes the author’s argument that
her husband was subjected to torture when in detention, referring to a medical report and
photographs that document bruises on his body from beatings and signs of his left hand
having been burned by hot metal. The author also alleged, as noted in the medical report, that
her husband was shot through the palm of his hand, that he was detained in cruel and
unsanitary conditions before being executed and that he was ultimately shot with his hands
shackled behind his back. The Committee recalls its general comment No. 20 (1992), in
which it recommended that States Parties should facilitate access of detainees to their family,
a lawyer and a medical doctor (para. 11). 27 It notes in this case that the author’s husband was
arrested in February 2013 and detained in an undisclosed location by State security officers;
that he was denied any communication with his family and a lawyer; that his family was
unable to obtain any information as to his whereabouts; that his family was informed of his
death on 13 March 2013 when they were asked to identify the body; and that the family was
not informed of the circumstances of his death, apart from the fact that he was shot after
having been tortured. The Committee therefore finds a violation of article 7 of the Covenant
in respect of the author’s husband.
8.8
With regard to the alleged violation of article 9, the Committee recalls the standards
of protection against arbitrary detention, as elaborated in its general comment No. 35 (2014)
(para. 12). It also notes the author’s statements that: her husband was not informed of the
reasons for his arrest by members of the internal security forces or the charges against him;
he was detained in an undisclosed location by State security officers; he was not informed of
his rights and did not have access to a lawyer or his family; his family was unable to obtain
any information as to his whereabouts; he was tortured in the context of incommunicado
detention;28 and he could not challenge the lawfulness of his deprivation of liberty before a
court. The Committee observes that no official information was given to his family regarding
his place of detention or his fate, and that his family was informed of his death only when
they were asked to identify his body on 13 March 2013. In the light of the foregoing and in
the absence of any observations or explanation from the State Party, the Committee finds that
there has been a violation of article 9 of the Covenant with regard to the author’s husband.29
8.9
As to the claims under article 17, the Committee notes the author’s arguments that her
husband was required to hand over his phone, his passport and his son’s passport as a
condition for his release the first time he was detained and that, following her husband’s
death, she and her family were repeatedly threatened over the phone, forcing them to leave
25 Olmedo v. Paraguay (CCPR/C/104/D/1828/2008), para. 7.3.
26 Al Daquel et al. v. Libya (CCPR/C/111/D/1882/2009), para. 6.4; García Mendoza and Gutiérrez
Julca v. Peru (CCPR/C/134/D/3664/2019), para. 8.9; and Olmedo v. Paraguay, para. 7.5.
27 See, inter alia, Boudjemai v. Algeria (CCPR/C/107/D/1791/2008), para. 8.5.
28 General comment No. 35 (2014), para. 35.
29 See, for example, Abushaala v. Libya, communication No. 1913/2009, para. 6.5; and Aouali et al. v.
Algeria, communication No. 1884/2009, para. 7.9.
CCPR/C/143/D/3324/2019
10
GE.25-06659
the country. The Committee also notes that the State Party has not submitted any observations
on the author’s claims in this regard and that due weight must therefore be given to the
author’s allegations, provided that they have been sufficiently substantiated.30 In the light of
the above and in the absence of any explanation from the State Party, the Committee
concludes that the material before it reveals multiple arbitrary or unlawful interferences with
the privacy, family and home of the author and her husband, which amount to a violation of
article 17 of the Covenant.31
9.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
the information before it discloses violations by the State Party of articles 6 (1) and 2 (3),
read in conjunction with article 6 (1), and of articles 7, 9 and 17 of the Covenant.
10.
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. Accordingly, the State
Party is obligated: (a) to provide appropriate compensation for the material and moral harm
suffered by the author, including for the delays in the investigation; (b) to undertake a prompt,
independent, impartial and effective investigation into the death of the author’s husband and
the identification, investigation and prosecution of other persons who may be responsible for
his death, including officials in the chain of command; and (c) to provide the author with
detailed information on the results of its investigation, including the actual circumstances of
her husband’s death. The State Party is also under an obligation to take steps to prevent
similar violations of the Covenant in the future.
11.
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 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
Committee’s Views. The State Party is also requested to publish the present Views and to
have them widely disseminated in the language of the State Party.
30 Khirani v. Algeria, communication No. 1905/2009, para. 7.3.
31 A.M.H. El Hojouj Jum’a et al. v. Libya (CCPR/C/111/D/1958/2010), para. 6.7; and Hadhoum Hmeed
Mohamed (CCPR/C/112/D/2046/2011), para. 6.6.
CCPR/C/143/D/3324/2019
GE.25-06659
11
Annex
[Original: Spanish]
Individual opinion of Committee member Rodrigo A. Carazo
(partially dissenting)
1.
I disagree with the Committee’s decision to find inadmissible the author’s claim of a
violation of article 10 (1) of the Covenant. It has been fully proved that the victim was
subjected to inhuman treatment by being imprisoned in a military base, left in the care of
military personnel, denied any communication with his family and a lawyer so as to prepare
a defence, and not allowed to receive visitors in general. The State Party does not at all refute
the author’s allegations in this regard.
2.
As a result of its finding, the Committee was unable to consider the claim on the merits.
The reasoning set forth in paragraph 11 of the Committee’s general comment No. 20 (1992)
is also valid for determining that the victim’s fundamental rights protected by article 10 (1)
of the Covenant were violated by the State party’s actions. Before being deprived of his life,
the victim was not treated with respect for the inherent dignity of the human person.