Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, SOUTH AFRICA; [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.26-04577 (E) 050526 060526
Human Rights Committee
Views adopted by the Committee under the Optional
Protocol, concerning communications No. 3167/2018
and No. 3218/2018*, **
Communications submitted by:
Johan Lets Pretorius, Johan Pretorius and
Wilhelm Pretorius (represented by Hercules
Booysen)
Alleged victims:
The authors
State Party:
South Africa
Date of communications:
31 January 2018 (initial submission)
(communication No. 3167/2018) and 22 July
2018 (initial submission) (communication
No. 3218/2018)
Document references:
Decisions taken pursuant to rule 92 of the
Committee’s rules of procedure, transmitted to
the State Party on 27 March 2018
(communication No. 3167/2018) and
3 December 2018 (communication
No. 3218/2018) (not issued in document form)
Date of adoption of Views:
10 March 2026
Subject matter:
Fair trial; undue delay in proceedings; lack of
legal representation; right to review by a higher
tribunal
Procedural issues:
Exhaustion of domestic remedies; level of
substantiation of claims
Substantive issues:
Arbitrary arrest or detention; conditions of
detention; right to liberty of movement; right to a
fair trial; right to privacy; non-discrimination
Articles of the Covenant:
9 (1), 10 (3), 12 (1) and (2), 14 (1), (2), (3) (b)–(e)
and (5), 17 and 26
Articles of the Optional Protocol:
2 and 5 (2) (b)
* Adopted by the Committee at its 145th session (2–19 March 2026).
** 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,
Carlos Ramón Fernández Liesa, Laurence R. Helfer, Konstantin Korkelia, Dalia Leinarte, Bacre Waly
Ndiaye, Hernán Quezada Cabrera, Akmal Saidov, Ivan Šimonović, Soh Changrok, Tijana Šurlan,
Teraya Koji and Hélène Tigroudja.
United Nations
CCPR/C/145/D/3167/2018
CCPR/C/145/D/3218/2018
International Covenant on
Civil and Political Rights
Distr.: General
6 May 2026
Original: English
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1.1
The author of communication No. 3167/2018 is Johan Lets Pretorius, born in 1946,
and the authors of communication No. 3218/2018 are his sons, Johan Pretorius and Wilhelm
Pretorius, born in 1971 and 1977, respectively. They are all nationals of South Africa. They
claim that the State Party has violated their rights under articles 9 (1), 10 (3), 12 (1) and (2),
14 (1), (2), (3) (b)–(e) and (5), 17 and 26 of the Covenant. The Optional Protocol entered into
force for the State Party on 28 November 2002. The authors are represented by counsel.
1.2
On 2 July 2018 (communication No. 3167/2018) and 19 March 2020 (communication
No. 3218/2020), pursuant to rule 93 (1) of its rules of procedure, the Committee, acting
through its Special Rapporteurs on new communications and interim measures, denied the
State Party’s request to examine the admissibility of the communications separately from the
merits.
1.3
On 10 March 2026, pursuant to rule 97 (3) of its rules of procedure, the Committee
decided to examine communications No. 3167/2018 and No. 3218/2018 jointly, in view of
the substantial factual and legal similarity between them.
Facts as submitted by the authors
2.1
Johan Lets Pretorius worked as a doctor with a medical practice in Potgietersrus,
Limpopo Province. Johan Pretorius also worked as a doctor and Wilhelm Pretorius as a
preacher in the same town, until all three were arrested in 2002. They state that, in view of
the high criminality in the country, the white farming community in the countryside started
to organize among themselves for protection “in case there would be a general uprising of
blacks against whites”. Protection was originally envisaged through a so-called commando
system that consisted of civilian reserves in the countryside. The idea was self-protection,
requiring them to be armed, which is legal in South Africa.
2.2
The commando system (also referred to as the Boeremag or Boer force) was infiltrated
by the security police, who acted as provocateurs and “radicalized” members of the group.
The authors argue that “by and large”, the whole process was closely monitored and steered
by the security police until the first arrests were made in 2002.
2.3
The authors claim that the security police arbitrarily selected 23 persons out of the
hundreds who had attended the meetings of the so-called self-protection units and charged
them with high treason, and that other meeting attendants were arbitrarily chosen as State
witnesses. The defendants – among them the authors – were charged before the North
Gauteng High Court with 43 offences, including high treason, terrorism, sabotage, one charge
of murder, a charge of conspiracy to attempt to commit murder and various charges
concerning the possession of explosives, illegal firearms and excessive ammunition. Johan
Lets Pretorius was arrested on 15 September 2002 and released on bail 18 months later. The
main charge against him of high treason consisted of threats to overthrow the Government.
The authors claim that the threat to the State was “literally and figuratively a paper threat”.
They state that it consisted of what was discussed, planned and written down in a document
called “document 12”, in which a plan was outlined on how to take over the country by force.
The authors claim that the plan was “unrealistic, sensational and a farce” and influenced by
the security police.
2.4
After the initial arrests of members of the units in 2002, Johan and Wilhelm Pretorius
note that they “formed part of a group of men, after a war had been declared for the
self-determination of the Boer people, namely the South African Boer Republic, who
continued with the legitimate armed conflict”. They saw themselves “as legitimate soldiers
in a just armed conflict according to the Geneva Conventions (Protocol I), for the liberation
of the Boer people against a racist regime oppressing our people”. They planted several
bombs in various locations. One of the bombings resulted in one woman being killed and
damage being caused to State property. Johan and Wilhelm Pretorius were arrested in
December 2002 and detained until their sentencing in 2013.
2.5
The authors claim that their trial was politically motivated and that the head
investigator of the Crime Intelligence Division was trying to make up for his previous actions
against African National Congress members, for which he was granted amnesty in 2002,
while he was investigating the authors’ case. He had previously been charged with eight
counts of murder and seven counts of attempted murder of African National Congress
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members, as well as various other charges. The authors’ trial was the most expensive and
longest that has ever been held in the State Party.
2.6
On 29 October 2013, Johan Lets Pretorius was found guilty of high treason and
sentenced to 30 years of imprisonment, of which 10 years were suspended. On the same date,
Johan and Wilhelm Pretorius were found guilty of high treason and sentenced to 35 years of
imprisonment, of which 10 years were suspended, 5 years for culpable homicide and 8 years
for conspiracy to attempt murder. The sentences were to be served concurrently. The authors
note that their sentencing took place 11 years after their respective arrests in September and
December 2002.
Exhaustion of domestic remedies
2.7
The authors state that they argued in detail that their rights to a fair trial, without undue
delay, and the right to equality of arms had been violated in the proceedings before the court.
They emphasized before the court that it was the State Party’s duty to ensure that the trial
was completed without undue delay. The prosecuting authority ignored that obligation when
it joined more and more accused to the same trial, which had a negative impact on each of
the accused’s individual rights to a trial without undue delay. Even at the initial stages of the
trial, counsel for some of the accused objected to the joining of additional accused and
brought an application against the joinder, which was rejected by the court. It was pointed
out during the trial that every time one of the accused exercised his procedural rights to
cross-examine witnesses, it had a negative effect on the right of other accused to a trial
without unreasonable delay. The court and the prosecuting authority ignored those objections.
2.8
In December 2013, Johan Lets Pretorius applied for leave to appeal before the trial
court. The appeal was limited to the factual basis of his conviction and sentence. The trial
court refused that application on 30 January 2014. In July 2016, he submitted a petition to
the President of the Supreme Court of Appeal, claiming that his right to have his conviction
reviewed by a higher tribunal had been violated. He further claimed that his right to a fair
trial had been violated due to: (a) the length of the trial proceedings; (b) the effect the long
trial had on his right to appeal; (c) the fact that his conviction was based on the testimony of
accomplices, thus violating the principle of equality of arms; (d) the fact that he had been
unrepresented during the testimony of a key State witness; (e) the fact that his communication
with counsel had been monitored during the trial; and (f) the fact that the composition of the
trial court did not fulfil the requirements of an independent and impartial court established
by law. The Registrar of the Supreme Court of Appeal refused to accept the petition on the
ground that the trial court judgment on conviction and sentence, the leave to appeal judgment
and the trial record were not attached to the petition. The author claims that, at the time of
his petition before the Supreme Court, he had not been provided with the court order of the
trial court refusing his application for leave to appeal or its judgment or record.
2.9
After their conviction, Johan and Wilhelm Pretorius note that they attempted to obtain
legal aid for the appeal process from the Legal Aid Board. However, no counsel was
appointed for them. On 26 September 2016, the authors, unrepresented, submitted an
application for leave to appeal before the trial court, which it dismissed. After the dismissal
of their application for leave to appeal, the authors again applied for legal counsel to be
appointed by the Legal Aid Board in order to petition the President of the Supreme Court of
Appeal directly. After having failed once again to obtain assistance from the Legal Aid Board,
the authors, again unrepresented, submitted a petition before the President of the Supreme
Court in March 2017, raising the same grounds set out in points (a)–(f) in paragraph 2.8
above. The Registrar of the Supreme Court of Appeal refused to accept the petition because
it did not contain the judgment on conviction and sentence of the trial court. The authors note
that, at the time of their petition in 2017, they had not received said judgments, but that in
any case, as they were unrepresented, it was not a requirement under domestic law to submit
the judgments together with their petition.
2.10
The authors note that, at the time of the submission of their complaints before the
Committee, five years had elapsed since their conviction and sentence by the High Court.
They argue that it is therefore unreasonable to continue with attempts to file petitions for
leave to appeal. They further note that, even if they were to obtain leave to appeal, the appeal
process would last for a minimum of two years, bringing it to a conclusion 18 years after
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their arrest. They argue that to pursue any further domestic remedies would thus merely
prolong their incarceration unreasonably. They note that a complaint may also be filed with
the Constitutional Court. However, their request to be appointed a legal aid lawyer for filing
such a petition was denied on 28 March 2018. They argue that even if financial aid to
approach the Constitutional Court were to become available and even if they were to get any
legal relief from the Constitutional Court, the infringements of their rights have already
occurred in view of the excessively long trial.
Complaint
Articles 9 (1) and 14 (1) and (2) – transport in arm-and-foot chains
3.1
The authors claim that they were arbitrarily put in arm-and-foot chains when
transported to the court while in detention, in violation of their right under article 9 (1) of the
Covenant to security of person. They also claim that photos of them in chains were published
widely and broadcast on television. They further claim that they were presented to the public
as very dangerous criminals, or part of a group of dangerous criminals, amounting to a
violation of their rights under article 14 (1) and (2) of the Covenant, as this influenced the
court’s impression of them. They argue that the negative impression of them as dangerous
was exacerbated by the fact that they were brought to court in armoured vehicles with sirens
at full blast, accompanied by heavily armed special forces units, and heavily armed police
were present in the courtroom throughout the trial. They claim that there is no procedure
under South African law that prescribes transporting defendants in chains and that they could
not complain to the court about the treatment as the court regarded it as a matter for the police.
Articles 9 (1), 14 (1) and 26 – equality of arms
3.2
The authors note that, initially, the security police arrested other persons who had been
involved in the same activities as they had. Some of those persons were charged, others were
made State witnesses under section 204 of the Criminal Procedure Act, 1977, and the rest
were released without charge. They claim that they were not informed about the reasons why
they were chosen to be prosecuted or why they were not given the opportunity to become
State witnesses. They note that the persons who became State witnesses were granted
immunity in return for their testimonies. They state that the trial court specifically recognized
that there is no legal provision in domestic law that entitles accused to be given any reasons
why they were selected to be prosecuted or to be made State witnesses. The authors argue
that unfairness is inherent in section 204 of the Criminal Procedure Act as, firstly, the
prosecution has a bigger pool of witnesses available to it to prove its case because it can force
accomplices to testify by giving them immunity. Secondly, an accused’s right to call
witnesses is limited under that section as a person cannot be forced to testify in view of the
prohibition on self-incrimination. Thirdly, a State witness is rewarded for being a satisfactory
witness for the State by being granted immunity from prosecution. The authors claim that the
selection of defendants and State witnesses was thus made arbitrarily, in violation of their
rights under articles 9 (1), 14 (1) and 26.
Article 14 (1), (2), (3) (c) and (5) – undue delay in proceedings and right to review
3.3
The authors note that they were arrested in September and December 2002,
respectively. The trial started on 19 May 2003. They claim that the prosecution kept joining
accused to the trial, against the objections of the defence counsels that this would prolong the
trial. Ultimately, 23 accused were joined to the trial; they were each charged with 43 offences.
The prosecution called 158 witnesses and closed its case on 15 June 2007, over four years
after the authors’ arrests. The authors state that the reason the prosecution joined so many
accused in one trial was that it was allowed for under the Criminal Procedure Act and it was
necessary to prove the charge of conspiracy to commit an offence. Ultimately, however, the
prosecution abandoned the conspiracy charges and relied only on direct evidence linking
each individual to the alleged criminal acts of high treason. Johan Lets Pretorius also notes
that, with the exception of the charge of high treason, all the other charges against him were
subsequently withdrawn. However, the fact that only the charge of high treason was going to
be pursued became apparent only at the end of the trial, meaning that all the defendants were
obliged during the whole length of the trial to tailor their defences to all the charges. The
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authors further note that the prosecution called 158 witnesses according to the trial court’s
judgment, but their convictions were based on only 20 State witnesses, in the case of Johan
Lets Pretorius, and 21 witnesses in the cases of Johan and Wilhelm Pretorius. Nevertheless,
they had to attend the court hearings of all the other State witnesses who were irrelevant to
their cases.
3.4
The authors claim that the trial judge recognized that the Legal Aid Board, which is
an organ of the State responsible for providing legal aid, played a significant role in the delay
of the trial, especially in refusing to appoint legal representatives for some of the defendants.
By the time the authors were sentenced in October 2013, 11 years had passed since their
arrest. They note that, at the time of the submission of their complaints to the Committee in
2018, over 15 years had passed since their arrest and they had not yet managed to submit an
appeal against their conviction, resulting in a violation, under article 14 (3) (c) of the
Covenant, of their right to be tried without undue delay.
3.5
The further argue that the excessively long trial also violated the presumption of
innocence under article 14 (2) of the Covenant, especially with regard to Johan and Wilhelm
Pretorius, as they were detained for 11 years before they were sentenced. They argue that
they were, therefore, prejudged as being guilty and deserving sentences of more than 10 years
even before they were convicted, and that the other defendants also had to be sentenced to
long prison sentences in order to justify the length of the proceedings.
3.6
The authors claim that the long trial violated their right to a fair trial and the right to
review under article 14 (1) and (5) of the Covenant, taking into account that at the time of
submission of their complaint, over 15 years had passed since their arrest and detention
without them having been able to have their convictions and sentences reviewed by a higher
tribunal. Concerning the right to appeal, they note that under domestic law, a person who has
been convicted and sentenced by the High Court must apply to the trial judge for leave to
appeal and if it is refused, he or she can petition the President of the Supreme Court of Appeal
for leave to appeal, pursuant to section 316 of the Criminal Procedure Act of 1977. They note
that, pursuant to section 315 of that Act, there is no right to appeal. They also note that the
trial judge and the Supreme Court of Appeal judges considering the petition have very broad
discretion whether or not to grant the necessary permission to appeal, as the Act does not
specify the grounds on which discretion should be exercised, but indicates merely the
procedure to be followed to obtain the necessary permission for leave to appeal. The authors
argue that the inherent discretion given to both the trial judge and the Supreme Court of
Appeal to refuse leave to appeal is a clear violation of article 14 (5) of the Covenant.
Articles 9 (1) and 12 (1) and (2) – right to liberty of movement
3.7
The authors claim that the facts that Johan Lets Pretorius had to attend court sessions
regularly and that Johan and Wilhelm Pretorius were detained throughout the trial violated
their right to liberty and security of person under article 9 (1) of the Covenant. They also
claim a violation of article 12 (1) and (2), as they could not travel freely in South Africa or
choose their place of residence because of Johan Lets Pretorius’s bail conditions and Johan
and Wilhelm Pretorius’s detention.
Article 14 (1) and (3) (d) – presence at trial and lack of legal representation
3.8
Johan Lets Pretorius claims a violation of his rights under article 14 (3) (d) of the
Covenant, as he was not present during the testimony of a key witness for the prosecution.
He argues that the fact that his counsel was present on that occasion is irrelevant for the
consideration of his claim.
3.9
Johan Lets Pretorius claims that he was unrepresented for five months during the trial.
After he could no longer afford a privately paid counsel, the Legal Aid Board took five
months to appoint and pay his counsel. He also claims that during those five months, while
he was unrepresented, key witnesses testified against him, including one witness upon whose
testimony his conviction was based. In addition, as he suffers from hearing loss, he was
unable to hear what the witnesses and counsels for the other defendants were saying. He notes
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that the counsel the Legal Aid Board eventually appointed for him was also representing five
other defendants in the same case, without the Board having assessed whether there was a
conflict of interest between the defendants.
3.10
Johan and Wilhelm Pretorius claim that, because the Legal Aid Board did not provide
them with timely legal counsel, they were unrepresented for one year and seven months
during the trial. They were unrepresented during the cross-examination of key State witnesses,
including testimonies by witnesses upon which their convictions were based. During that
time, they were often not even present in court when the hearings took place. They note that
they never had counsel representing them individually, but had the same shared counsel or,
as at the beginning of the trial, were grouped together with other defendants all represented
by the same counsel. The authors claim that this amounts to a violation of their rights under
article 14 (1) and (3) (d) of the Covenant.
Articles 14 (3) (b) and 17 – right to legal privilege
3.11
The authors claim that their conversations with their legal representatives were
monitored with both audio and visual surveillance during the proceedings, in violation of
their rights under articles 14 (3) (b) and 17 of the Covenant. They state that an engineer who
installed the intercom system in the facilities where they were being held testified that the
authorities had the ability to listen in on consultations with counsel at any time. The authors
note that, in addition, an objection was made to the trial court about the fact that the
microphone system was recording consultations that took place in the courtroom, where the
authors were forced by the police to consult with their legal representatives. In response, the
court stated only that it would look into the matter, but nothing was ever done and the
consultations continued to be recorded. The authors also note that an ex-security police
officer later confirmed at trial that all the cells where consultations between legal
representatives and accused sometimes occurred, as well as the consultation rooms in the
court building, were monitored by the security police. The security police knew, and could
see, everything that occurred in court between accused and their legal representatives. They
then communicated the information immediately to the investigating officers present in the
court, who communicated it to the prosecution. However, the trial court did not believe the
ex-security police officer and referred him for prosecution on account of perjury.
Articles 9 (1) and 14 (1) – sentence by a court not established by law
3.12
The authors note that after their conviction, the trial judge declared the two assessors
who had participated at the hearing functus officio. Under domestic law, the assessors are
part of a court only until a conviction is rendered and the judge alone is responsible for the
sentencing process. The authors claim that despite this, the trial judge kept one assessor on
the bench while excusing the other one. They state that it was pointed out to the trial judge
that the presence of one of the assessors on the bench might be problematic and raised
questions as to undue influence. According to the trial judge, the assessor was kept there to
help him with the facts. The authors claim that their sentencing was, therefore, in violation
of articles 9 (1) and 14 (1) of the Covenant, as the trial court’s composition was not based on
law.
Article 14 (1) – trial by an independent tribunal
3.13
The authors claim that the trial judge and at least one of the assessors in the case were
former colleagues of the senior advocate of the prosecuting team, and that they had worked
together in the same office under his leadership before the trial judge became a practising
advocate and later a judge. They claim that the court was therefore not an independent and
impartial tribunal in accordance with article 14 (1) of the Covenant.
Article 10 (3) – sentence without regard to reformation and rehabilitation
3.14
The authors claim that the trial court applied only the principles of deterrence and
retribution in sentencing them, without considering the principles of reformation and
rehabilitation, in violation of their rights under article 10 (3) of the Covenant.
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State Party’s observations on admissibility
4.1
On 5 June 2018, the State Party submitted its observations on the admissibility of
communication No. 3167/2018, which it considers inadmissible for failure to exhaust
domestic remedies. It notes that, in his complaint, the author indicated that he had petitioned
the President of the Supreme Court. It considers that the author should have waited for a reply
before submitting his communication to the Committee. It submits that, if the author
disagrees with the Supreme Court’s reply, he can also file a claim before the Constitutional
Court.
4.2
On 16 May 2019, the State Party submitted its observations on the admissibility of
communication No. 3218/2018, noting the authors’ claims that their trial was unduly delayed.
It argues that some of the delays were attributable to the defendants’ requests for
postponements of hearings, including postponement requests made by the authors. The State
Party also notes that the authors proceeded with an application for leave to appeal the trial
court judgment only two years and eight months after the conclusion of the hearing, while
under the Criminal Procedure Act, that should have been done within 14 days of the judgment.
The State Party further notes that the Registrar of the Supreme Court “indicated that once all
the required documents are received, the petition will be considered” and that “it is to be
noted that the National Prosecuting Authority is in possession of an electronic version of the
record of proceedings and is in the process of obtaining the transcribed record, which is
believed to be in the possession of the High Court”. The State Party argues that the authors
would therefore be in position to proceed with an appeal process as soon as the required
documents have been submitted to the Registrar of the Supreme Court. The State Party notes
that the authors have lodged four motion proceedings with the High Court, the most recent
of which was, at the time of the submission of its observations, to be heard in June 2019.
Authors’ comments on the State Party’s observations on admissibility
5.1
On 5 August and 31 October 2019, the authors submitted their comments on the State
Party’s observations on admissibility. They note the State Party’s argument that it took the
authors of communication No. 3218/2018 over two years to submit an application for leave
to appeal. They reiterate their argument that they could not do so earlier as, despite numerous
requests to the Legal Aid Board, they were not appointed counsel for the appeals proceeding.
They also note the State Party’s argument that some of the trial delays were due to defendants’
requests for postponements. They argue that the State Party has not provided any example of
any alleged requests for postponement that it considered to be without merit and reiterate
their argument that the trial proceeded even during periods when they were unrepresented.
They note that the motion proceedings referred to by the State Party in its observations
concerned only petitions for enforcement of basic prisoner rights, while the most recent
proceeding was a habeas corpus application based on their complaint before the Committee.
5.2
The authors argue that they were unable to submit an effective appeal in their case
within the designated statutory time limit referred to by the State Party in its observations.
They note that the statutory time limit for an appeal of a High Court judgment in a criminal
case is as follows: (a) according to section 316 (1) of the Criminal Procedure Act of 1977, an
accused may apply for leave to appeal to the trial judge within 14 days after the passing of
the sentence, or within such extended period as the court may, on application and for good
cause shown, allow; (b) if such an application for leave to appeal is refused by the trial judge,
the accused may, according to section 316 (8) of the Criminal Procedure Act, petition the
President of the Supreme Court of Appeal for leave to appeal within 21 days after the trial
judge’s refusal of leave to appeal, or within such extended period as may, on application for
good cause shown, be allowed; and (c) according to section 315 (4) of the Criminal Procedure
Act, there is no right to an automatic appeal of a High Court judgment, an appeal can be
submitted only after an application or petition for leave to appeal has been granted, as
stipulated in section 316 of the Act.
5.3
The authors note that, at the time of their sentence, their counsel believed that it was
impossible to bring an effective appeal within the prescribed time or even thereafter due to
the extensive trial record. Legal aid was not provided for an appeal, and subsequent requests
for legal aid to be provided were denied by the Legal Aid Board. The authors argue that the
delay in bringing the first application for leave to appeal to the High Court was caused not
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only by the extensive trial record and lack of legal representation, but also by the fact that
they obtained access to computers and the provisional court record in order to be able to
compile an application for leave to appeal only a year after their sentencing. This delay was
exacerbated by the fact that their first application for leave to appeal was confiscated by
officials of the Correctional Services Department when it was given to representatives of the
Legal Aid Board for filing, which caused a further delay of nine months. Ultimately, counsel
advised the authors pro bono on the legal grounds to bring an application for leave to appeal.
These grounds were confined to legal grounds based primarily on the Criminal Procedure
Act, the Constitution and the provisions of the Covenant. The application was heard by the
trial judge on 26 September 2016. Condonation was given for the late application, but the
leave to appeal was refused.
5.4
The authors then had 21 days to petition the Supreme Court of Appeal for leave to
appeal after their application was refused by the trial judge. However, they did not receive
the record of the trial court’s refusal of their leave application until 11 November 2016, that
is, after the statutory time limit had already expired. Thereafter, they immediately began to
compile their petition and gave it to the Legal Aid Board for filing in early December 2016.
The Legal Aid Board did not file it with the Registrar of the Supreme Court of Appeal until
8 March 2017. It was the duty of the Registrar of the High Court to transmit the required
documentation to the Registrar of the Supreme Court of Appeal, however there is no record
of this having been done. Although the Registrar of the High Court wrote on 31 March 2017
to inform the Registrar of the Supreme Court of Appeal that he had sent the necessary
documents to the Supreme Court, the Registrar of the Supreme Court of Appeal wrote to the
authors on 22 June 2017 informing them that he had not received the judgment and sentence
record and therefore refused to accept the petition. The authors note that, at the time of the
filings, they had not received the official trial record of their case which is under the control
of the State Party authorities, either in hard copy or in electronic form, despite numerous
requests to the Legal Aid Board. They state that it was thus impossible for them to fulfil the
requirement to submit said documentation in their petitions. For the same reasons as set out
above, their co-defendants were also unable to obtain leave to appeal, and the trial case was
never reviewed by higher tribunal.
Authors’ additional submission
6.
On 21 October 2021, the authors provided additional information on domestic
proceedings. They note that in February 2019, they brought habeas corpus proceedings in the
High Court for their permanent or temporary release based on the complaint submitted before
the Committee. They state that the proceedings were based on two causes of action: (a) the
likely findings of the Committee of violations of the Covenant by the State Party in its
conduct towards them; and (b) the violations of their right to appeal, which occurred after the
trial court in their case was functus officio and they were sentenced. On 22 November 2019,
the High Court declined to exercise jurisdiction on the basis that it cannot review its own
decision. After the dismissal of the application, the authors applied to the Supreme Court of
Appeal for leave to appeal against the judgment of the High Court. On 4 March 2021, the
Supreme Court of Appeal dismissed the application without providing any reasons. The
authors subsequently sought leave to appeal the decision of the Supreme Court before the
Constitutional Court. On 22 September 2021, the Constitutional Court dismissed that
application, also without providing any reasons. The authors argue that they therefore tried
their utmost not only to appeal their original convictions and sentences, as indicated in their
complaints to the Committee, but also to have another court adjudicate the violations of their
rights as set out in the Constitution, to no avail.
Lack of cooperation by the State Party
7.
On 2 July 2018 (communication No. 3167/2018) and 19 March 2020 (communication
No. 3218/2018), the Committee informed the State Party that its request for the admissibility
of the communications to be examined separately from the merits had been denied and that
it was requested to submit its observations on the merits of the communications. Reminders
to do so were sent to the State Party concerning communication No. 3167/2018 on 28 August
2019 and concerning both communications on 24 November 2021 and 30 January 2025. The
Committee regrets the failure of the State Party to respond to these requests in a timely
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9
manner and to provide any information with regard to the merits of the authors’ claims. The
Committee recalls that article 4 (2) of the Optional Protocol implicitly 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.1 In the absence of a reply from the State Party,
due weight must be given to the authors’ allegations, to the extent that they are substantiated.
Issues and proceedings before the Committee
Consideration of admissibility
8.1
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.
8.2
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.
8.3
The Committee notes the State Party’s submission that the communications should be
found inadmissible under article 5 (2) (b) of the Optional Protocol for failure to exhaust
domestic remedies. It also notes the authors’ argument that after their convictions, they
submitted applications for leave to appeal before the trial court as stipulated under domestic
law, and that following the rejection of said applications, they submitted petitions before the
Supreme Court of Appeal. It further notes their argument that considering the lengthy trial,
the proceedings in their case have also been unduly prolonged.
8.4
The Committee recalls its jurisprudence that, although there is no obligation to
exhaust domestic remedies if they have no chance of being successful or if the application of
remedies is unreasonably prolonged, authors of communications must exercise due diligence
in the pursuit of available remedies, and that mere doubts or assumptions about their
effectiveness do not absolve the authors from exhausting them.2
8.5
In the present case, the Committee notes that following their conviction and
sentencing, all three authors made applications for leave to appeal to the trial court, which
rejected their applications on 30 January 2014 (communication No. 3167/2018) and
26 September 2016 (communication No. 3218/2018). The Committee notes the State Party’s
argument that the application for leave to appeal by Johan and Wilhelm Pretorius was filed
over two years after their sentencing, thus failing to meet the deadline for filing an application
for leave to appeal within 14 days of the judgment, as stipulated in the Criminal Procedure
Act. However, the Committee notes the authors’ undisputed argument that the trial court
excused the late filing of the application. The Committee further notes that, following the
rejection by the trial court of their applications for leave to appeal, all three authors submitted
petitions to the Supreme Court of Appeal containing their claims of fair trial violations (see
paras. 2.8 and 2.9 above). The Committee notes the authors’ information that the Registrar
of the Supreme Court of Appeal refused to accept the petition by Johan Lets Pretorius on the
ground that the trial judgment on conviction and sentence, the leave to appeal judgment and
the trial record were not attached to the petition and that the Registrar refused the petition by
Johan and Wilhelm Pretorius as it did not contain the judgment on conviction and sentence
of the trial court. The Committee further notes the authors’ unrefuted argument that it was
not possible to submit said documents together with their petitions, as at the time of the
submission of the petitions before the Supreme Court of Appeal, they had not received the
documentation from the trial court, and that in the case of Johan and Wilhelm Pretorius, who
were unrepresented, it was also not a requirement under domestic law to submit said
documents together with their petition.
8.6
The Committee notes the State Party’s submission that the authors could also have
filed claims before the Constitutional Court. It notes the authors’ arguments that their request
to be appointed a legal aid lawyer for filing such a petition was denied on 28 March 2018 and
that the infringements of their rights had already occurred in view of the excessively long
1 Sheriffdeen v. Sri Lanka (CCPR/C/133/D/2978/2017), para. 4.
2 For example, M.L. v. Croatia (CCPR/C/127/D/2505/2014), para. 6.6.
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10
GE.26-04577
trial. The Committee further notes that the State Party has not provided any further
information on the possibility in the authors’ case of obtaining a remedy from the
Constitutional Court to address their claims, following the rejection of their applications for
leave to appeal. Taking into account the authors’ information on the attempts made to exhaust
domestic remedies by submitting applications for leave to appeal before the trial court and
by filing petitions before the Supreme Court of Appeal, as well as taking into account the fact
that, by the time the authors’ petitions before the Supreme Court of Appeal were rejected in
2016 and 2017, 13 years had elapsed since their arrest, the Committee considers that it is not
precluded by article 5 (2) (b) of the Optional Protocol from considering the present
communication.
8.7
The Committee notes the authors’ claim that their rights under articles 9 (1) and 14 (1)
and (2) of the Covenant were violated as they were transported to the court hearings in
arm-and-foot chains, and as photos of them in chains were published in media, thus
presenting them as dangerous criminals. It also notes their claims that the excessively long
trial also violated their right to be presumed innocent under article 14 (2), as considering their
long periods of detention, they were prejudged as being guilty. The Committee further notes
the authors’ claims that the selection of defendants and State witnesses was made arbitrarily,
in violation of their rights under articles 9 (1), 14 (1) and 26. Furthermore, the Committee
notes the authors’ claims that, in sentencing them, the trial court failed to take into account
the principles of reformation and rehabilitation in violation of their rights under article 10 (3)
of the Covenant. Nevertheless, the Committee considers that the authors have not sufficiently
substantiated these claims, and it therefore finds the claims inadmissible under article 2 of
the Optional Protocol.
8.8
The Committee notes the authors’ claims that the fact that they had to attend court
sessions regularly or the fact that they were detained throughout the trial violated their right
to liberty and security of person under article 9 (1), as well as their claim that their rights
under article 12 (1) and (2) were violated as they could not travel freely or choose their place
of residence during the trial. In the absence of any further specific information or
argumentation as to said claims, the Committee finds the claims to be insufficiently
substantiated for the purposes of admissibility and therefore inadmissible under article 2 of
the Optional Protocol.
8.9
The Committee also notes the authors’ claims that their rights under articles 9 (1)
and 14 (1) were violated as the trial court’s composition was not based in law, as the trial
judge and one of the assessors in the hearing were former colleagues of the senior advocate
of the prosecuting team. However, the Committee further notes that, since the authors have
not provided any additional specific information or argumentation in support of these claims,
it finds the claims to be insufficiently substantiated for the purposes of admissibility and
therefore inadmissible under article 2 of the Optional Protocol.
8.10
The Committee considers that the authors have sufficiently substantiated the
remaining claims concerning their right to be present at trial, their lack of legal representation,
the undue delay in proceedings, the right to review and the right to confidential
communication with counsel, for the purposes of admissibility. Accordingly, the Committee
declares the authors’ claims under article 14 (3) (b)–(d) and (5) and article 17 of the Covenant
admissible and proceeds with its consideration of the merits.
Consideration of the merits
9.1
The Committee has considered the communication in the light of all the information
submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol. The
Committee notes that, in failing to respond to a communication, or responding incompletely,
a State that is the object of a communication puts itself at a disadvantage because the
Committee is then compelled to consider the communication in the absence of full
information relating to the communication. In the absence of any explanations from the State
Party in respect of the merits, due weight must be given to the authors’ allegations to the
extent that they have been sufficiently substantiated (see para. 7 above).3
3 Sheriffdeen v. Sri Lanka, para. 6.1.
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9.2
The Committee notes the authors’ claims that their rights under article 14 (3) (d) of
the Covenant were violated as they were not present during parts of the trial, were
unrepresented during periods of the trial, and were not appointed counsel representing them
individually. The Committee recalls that article 14 (3) (d) guarantees the right of accused
persons to be tried in their presence and to have legal assistance assigned to them whenever
the interests of justice so require, and without payment by them in any such case if they do
not have sufficient means to pay for it. The Committee further recalls that the gravity of the
offence is important in deciding whether counsel should be assigned in the interests of justice,
as is the existence of some objective chance of success at the appeals stage.4
9.3
In the present case, concerning the gravity of the offences in question, the Committee
notes that the authors were on trial for serious criminal charges, facing long periods of
imprisonment if convicted. The Committee also notes the authors’ claims that they were not
present at parts of the trial, including during testimonies of key witnesses. It further notes
their claims that they were unrepresented for periods of five months (communication
No. 3167/2018) and one year and seven months (communication No. 3218/2018), including
during testimonies of witnesses upon which their convictions were based. In addition, the
Committee notes the claim that the counsel eventually appointed for them through the Legal
Aid Board also represented other defendants in the case without the Board having assessed
whether there was a conflict of interest between the defendants (see paras. 3.9 and 3.10
above). The Committee notes that the State Party has not submitted any observations on the
merits of the present communication or refuted any of the authors’ claims. In the absence of
a response from the State Party in that regard, the Committee gives due weight to the authors’
claims that they were not present at parts of the trial, were unrepresented during crucial
periods of the trial, and that there was no assessment made as to whether there was a conflict
of interest between defendants represented by the same counsel appointed to them, thus
amounting to a violation of the authors’ rights under article 14 (3) (d) of the Covenant.
9.4
The Committee notes the authors’ claim that their right under article 14 (3) (c) to be
tried without undue delay was violated, as by the time they were sentenced at first instance
in October 2013, 11 years had passed since their arrests in September and December 2002,
respectively. The Committee recalls that the right of the accused to be tried without undue
delay is designed not only to avoid keeping persons too long in a state of uncertainty about
their fate and, if held in detention during the period of the trial, to ensure that such deprivation
of liberty does not last longer than necessary in the circumstances of the specific case, but
also to serve the interests of justice. What is reasonable has to be assessed in the
circumstances of each case, taking into account mainly the complexity of the case, the
conduct of the accused, and the manner in which the matter was dealt with by the
administrative and judicial authorities. In cases where the accused are denied bail by the court,
they must be tried as expeditiously as possible. This guarantee relates not only to the time
between the formal charging of the accused and the time by which a trial should commence,
but also the time until the final judgment on appeal. All stages, whether in first instance or
on appeal, must take place without undue delay.5
9.5
In the present case, the Committee notes the authors’ argument that their trial at first
instance lasted 11 years, with two of the authors detained during that period. It also notes the
State Party’s argument that some of the delays were attributable to the defendants’ requests
for postponements of hearings, including postponement requests made by the authors.
Nevertheless, the Committee further notes the authors’ argument that the State Party has not
provided any examples of any alleged requests for postponement made by them that were
considered to be without merit. It notes their arguments that the trial was delayed as accused
were joined to the same trial despite counsels’ objection that this would unduly prolong the
trial and their argument that the delays were partly caused by delays on the part of the Legal
Aid Board in appointing legal representatives for some of the defendants. In the absence of
any further explanation by the State Party regarding the excessive length of the trial, the
Committee gives due weight to the authors’ claims and finds that the facts described amount
to a violation of their rights under article 14 (3) (c) of the Covenant.
4 General comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial,
para. 38.
5 Ibid., para. 35.
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9.6
The Committee also notes the authors’ claim that their rights under article 14 (5) of
the Covenant were violated as they were unable to have their convictions and sentences
reviewed by a higher tribunal. The Committee recalls that the right to have one’s conviction
and sentence reviewed by a higher tribunal imposes on the State Party a duty to review
substantively, both on the basis of sufficiency of the evidence and of the law, the conviction
and sentence, such that the procedure allows for due consideration of the nature of the case.
A review that is limited to the formal or legal aspects of the conviction without any
consideration whatsoever of the facts is not sufficient under the Covenant.6 The Committee
further recalls that the right to have one’s conviction reviewed can only be exercised
effectively if the convicted person is entitled to have access to a duly reasoned, written
judgment of the trial court and, at least in the court of first appeal where domestic law
provides for several instances of appeal, also to other documents, such as trial transcripts,
necessary to enjoy the effective exercise of the right to appeal.7
9.7
In the present case, the Committee notes the authors’ argument that at the time of the
submission of their complaint before the Committee, over 15 years had passed since their
arrest and detention without them having been able to have their convictions and sentences
reviewed by a higher tribunal. It also notes their information that, after their applications for
leave to appeal before the trial court had been rejected, they submitted petitions to the
Supreme Court of Appeal which were refused on the ground that documentation such as the
trial judgment on conviction and sentence, the leave to appeal judgment and the trial record
were not attached to the petition. The Committee further notes the authors’ argument that it
was not possible for them to submit said documents, as at the time of the submission of the
petitions before the Supreme Court of Appeal they had not received the requested
documentation. The Committee thus notes the authors’ submission that, despite their attempts
to have their conviction and sentence reviewed by a higher tribunal, their appeals were
rejected without any consideration of the facts in their case or review of the claims raised by
them concerning fair trial violations. In the absence of any explanation by the State Party in
this regard, the Committee gives due weight to the authors’ claims and finds that the facts
described amount to a violation of their rights under article 14 (5) of the Covenant.
9.8
The Committee notes the authors’ claims that their conversations with their legal
representatives were monitored with both audio and visual surveillance during the court
proceedings. The Committee recalls that the right to communicate with counsel requires that
counsel should be able to meet their clients in private and to communicate with the accused
in conditions that fully respect the confidentiality of their communications.8 In the present
case, the Committee notes the authors’ claims that the court microphone system recorded
consultations between defendants and counsel which took place in court, that their cells,
where consultations between legal representatives and defendants sometimes occurred, were
monitored, as well as their claim that the consultation rooms in the court building were
monitored. In the absence of any submission by the State Party refuting the authors’ claims
in this regard, the Committee gives due weight to the authors’ claims and finds that the facts
described amount to a violation of their rights under article 14 (3) (b) of the Covenant. Having
thus concluded, the Committee will not separately consider the same claims raised by the
authors under article 17 of the Covenant.
10.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
the facts before it disclose a violation of the authors’ rights under article 14 (3) (b), (c) and
(d) and (5) of the Covenant.
11.
Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to
provide the authors with an effective remedy. This requires it to make full reparation to
individuals whose Covenant rights have been violated. The Committee considers that, in the
present case, its Views on the merits of the complaint constitute sufficient reparation for the
violations found. The State Party is also under an obligation to take steps to prevent similar
violations occurring in the future.
6 Ibid., para. 48.
7 Ibid., para. 49; and D.K. v. Greece (CCPR/C/141/D/3582/2019), para. 10.4.
8 General comment No. 32 (2007), para. 34.
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12.
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 languages of the State Party