Decision on merits; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
ANNEX XIX
Views of the Human Rights Committee under article 5 (4)
of the Optional Protocol to the International Covenant
on Civil and Political Rights*
concerning
Communication No. 90/1981
Submitted by:
Luyeye Magana ex-Philibert (represented by Michael P. D. Ellman)
Alleged victim:
The author of the communication
state party concerned:
Zaire
Date of communication:
30 March 1981 (date of first letter)
Date of decision on admissibility:
21 October 1982
The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 21 July 1983,
Having concluded its consideration of communication No.
90/1981 submitted to
the Committee by Luyeye Magana ex-Philibert, through his legal representative,
Michael P. D. Ellman, under the Optional Protocol to the International Covenant on
Civil and Political Rights,
Having taken into account all the written information made available to it by
the author of the communication and by the State party concerned,
adopts the following:
VIEWS UNDER ARTICLE 5 (4) OF THE OPTIONAL PROTOCOL
1.
The communication, initial letter dated 30 March 1981 and further letter dated
15 February 1982, is submitted by Luyeye Magana ex-Philibert through his legal
~epresentative, Michael P. D. Ellman.
The alleged victim, a civil servant born on
22 February 1929, is a citizen of Zaire domiciled in that country.
It is claimed
that Mr. Luyeye is a victim of breaches by Zaire of articles 2 (3), 9, 10 and 17 of
the International Covenant on Civil and Political Rights.
2.1
It is alleged that, on 3 June 1967, Mr. Luyeye was arrested by the Surete
Nationale, deported to the island of Mbula-Mbemba in Lower Zaire and then
transferred to the prison Osio in Upper Zaire where he was detained until
30 August 1968 without ever being charged or informed of the reason for his
*
Mr. WaIter Suma Tarnopolsky did not participate in the adoption of the
views of the Committee under article 5 (4) of the Optional Protocol in this matter.
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detention.
He was rearrested on 24 March 1977 when, at 4.30 a.m., three agents of
the Centre Nationale de Documentation, furnished with a search warrant, came to his
house to carry out a search for no apparent reason.
They seized documents written
by the alleged victim, cinematographic films and magnetic tapes.
Following the
search, though without any warrant of arrest or summonsv they requested him to
accompany them to the Centre Nationale de Documentation to provide further
information.
Once there, he was introduced to Citizen Kisangani, one of the
directors who,
~ithout any further proceedings, simply ordered him to be kept in
detention.
While in detention, he was kept in a cell, locked in from morning to
night, sleeping on the ground, he was deprived of all contact with his family and
provided with only 200 g of rice and/or 100 g of chikwangue and a ladle of beans
from midday to midday, he was refused all medical attention.
On 6 April 1977,
without his knowledge or that of his family, the Centre National de Documentation
sent three agents to the village of his birth, Kintambu in Lower Zaire, to search
his country house where they removed his Scout's Certificate.
His detention
continued until 9 January 1978 when he was released following an amnesty pronounced
by the President of the Republic, without ever having been interrogated or given
any document relating to the detention, though a decree of 22 April 1961 (l'arrete
ministeriel No.
OS/22) provided that the agents of the Surete Nationale
~an detain
people for inquiry for five days only, after which they must be served with an
internment order.
It is further alleged that during his detention, five members of
his immediate family died and were buried without his having been able to be
present at the funeral.
His children were expelled from school because of the lack
of finance while he was detained.
2.2
It is maintained that by the aforesaid, the alleged victim's rights to liberty
and security of person, to freedom from arbitrary arrest or detention, to be
informed at the time of arrest of the reasons for his arrest and of any charges
against him and to be brought promptly before a judge
O~ other officer authorized
by law to exercise jUdicial power and to compensation for unlawful arrest or
detention (art. 9 of the Covenant) have been infringed, that his rights not to be
subjected to arbitrary or unlawful interference with his privacy, home or
correspondence nor to unlawful attacks on his honour and reputation but to have the
right of protection of the law against such interference or attacks (art. 17 of the
Covenant) have been infringed and that he was not treated with humanity while in
detention (art. 10).
2.3
As to the exhaustion of domestic remedies, it is claimed that Mr. Luyeye has
brought an appeal against his detention by writing to the Administrateur general
'who interviewed him on 20 September 1979, i.e., after his release.
His appeal
during detention had been without result.
It is alleged that there is no other
provision of any appeal in the law of Zaire, though Mr. Luyeye did in fact write to
the Head of State by letter of 9 January 1978 (to which he did not receive a
reply), as the only extrajudicial remedY,open to him.
He has therefore attempted
to bring his complaint before the' domestic tribunals of Zaire without success and
claims that, accordingly, the Republic of Zaire is in breach of its obligations
under article 2 (3) of the Covenant, namely to ensure that if any person's. rights
or freedom as .therein recognized are violated, he shall have an effective remedy
notwithstanding that the violation has been committed by persons acting in an
official capacity.
2.4
It is further stated that the same matter has not been submitted for
examination under another procedure of international investigation or settlement.
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3.
By its decision of 7 April 1982, the Human Rights Committee transmitted the
communication under rule 91 of the provisional rules of procedure to the State
party concerned, requesting information and observations relevant to the question
of admissibility of the communication.
The State party was in particular
requested, if it contended that domestic remedies had not been exhausted, to give
details of the effective remedies available to the alleged victim in the particular
circumstances of his case and, if it objected that the same matter is being
examined under another procedure of international investigation or settlement, to
give details including information on the stage reached in such proceedings.
The
State party was also requested to provide the Committee with copies of any court
orders or decisions relevant to the case.
The State party was informed that its
reply should be furnished to the Committee not later than 18 July 1982.
No reply
was received from the State party.
4"
The Human Rights Committee took note that no submission had been received from
the State party concerning the question of the admissibility of the communication.
On the basis of the information before it, the Committee found that it was not
pKecluded by article 5 (2)
(a) of the Optional Protocol from considering the
communication.
The Committee was also unable to conclude that, in the circumstances
of this case, there were effective remedies available to the alleged victim which
he had failed to exhaust.
Accordingly, the Committee found that the communication
was not inadmissible under article 5
(2)
(b) of the Optional Protocol.
5.
On 21 October 1982, the Human Rights Committee therefore decided:
(a)
That the communication was admissible in so far as it
rela~ed to events
said to have occurred on or after 1 February 1977, the date on which the Covenant
and the Optional Protocol entered into force for Zaire,
(b)
That, in accordance with article 4 (2) of the Optional Protocol, the
State party should be requested to submit to the Committee, within six months of
the date of the transmittal to it of this decision, written explanations or
statements clarifying the matter and to enclose copies of any court orders or
decisions relevant to the case.
6.
On 22
~~y 1983, the time-limit for the observations requested under
article 4 (2) of the Optional Protocol expired.
No submission has been received
from the State party.
The Committee observes that, in accordance with
article 4 (2), the State party has the duty to investigate in good faith all
allegations of violation of the Covenant made against it and its authorities and
then to submit its explanations and statements to the Committee.
In operative
paragraph 2 of the Committee's decision on admissibility of 21 October 1982, the
State party was also requested to furnish to the Committee copies of any court
orders or decisions relevant to the case.
The Committee notes with regret that it
has not received the information requested.
In the absence of any submission from
the State party, the Committee cannot but draw its conclusions on the basis of
information before it from other sources.
7.1
The Human Rights Committee, having examined the present communication in
the light of all the information made available to it as provided in article 5,
paragraph 1, of the Optional Protocol, hereby decides to base its views on the
following facts, which, in the absence of any observations by the State party,
are uncontradicted by it.
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7.2
Luyeye Magana ex-Philibert was arrested on 24 March 1977 when three agents of
the Centre Nationale de Documentation furnished with a search warrant, came to his
house to carry out a search for no apparent reason.
They seized documents written
by the alleged victim, cinematographic films and magnetic tapes.
Following the
search, though without any warrant of arrest or summons, they requested him to
accompany them to the Centre Nationale de Documentation to provide further
information.
Once there, he was introduced to Citizen Kisangani, one of the
directors who, without any further proceedings, simply ordered him to be kept in
detention.
While in detention, he was kept in a cell, lccked in from morning to
night, sleeping on the ground, he was deprived of all contact with his family and
he was refused all medical attention.
On 6 April 1977, without his knowledge or
that of his family, the Centre Nationale de Documentation sent three agents to the
village of his birth, Kintambu in Lower Zaire, to search his country house where
they removed his Scout's Certificate.
His detention continued until 9 January 1978
when he was released following an amnesty pronounced by the President of the
Republic, without ever having been interrogated or given any document relating to
the detention, though a decree of 22 April 1961 (l'arrete ministeriel No. OS/22)
provided that the agents of the Surete Nationale can detain people for inquiry for
five days only, after which they must be served with an internment order.
During
his detention he appealed without result to the Administrateur general and, by
letter, to the Head of State.
No other remedy was available to him.
It is further
alleged that during his detention, five members of his immediate family died and
were buried without his having been able to be present at the funeral.
His
children were expelled from school because of the lack of finance while he was
detained.
8.
The Human Rights Committee, acting under article 5 (4) of the Optional
Protocol to the International Covenant on Civil and Political Rights, is of the
view that the facts as found by the Committee, in so far as they continued or
occurred after 1 February 1977 (the date on which the Covenant and the Optional
Protocol entered into force for Zaire), disclose violations of the International
Covenant on Civil and Political Rights, particularly:
of article 9 (1), because Luyeye Magana ex-Philibert has been SUbjected to
arbitrary arrest and detention,
of article 9 (2), because he was not informed, at the time of his arrest, of
the reasons for his arrest and of any charges against him,
of article 9 (3) and (4), because he was not brought promptly before a judge
and no court decided within a reasonable time on the lawfulness of his
detention,
of article 10 (1), because, while in detention, he was not treated with
humanity,
of article 2 (3), because there was no effective remedy under the domestic law
of Zaire against the violations of the Covenant complained of.
9.
The Committee, accordingly, is of the opinion that the State party is
under an obligation (a) to investigate the complaints made and to provide
Luyeye Magana ex-Philibert with effective remedies for the violations he has
suffered, including compensation and the return of his pLoperty to him, and (b)
to take steps to ensure that similar violations do not occur in the future.
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