CCPR/C/39/D/193/1985

on

(views adopted on 20 July 1990, at the thirty-n'nth session)

Submitted by: Pierre Giry

Alleged victim: The author |

State party concerned: Dominican Republic |

Date of communication: 23 August 1985 |

Rate of Gegcision on admissibility: 11 July 1988

The Human Rights Committees, established under article 28 of the International

Covenart on Civil and Political Rights,

Meeting on 20 July 1990,

its consideration of communication No. 193/1985, submitted to

the Committee by Pierre Giry under the Optional Protocol to the International

Covenant on Civil and Political Rights,

-Acgount all written information made available to it by the

author of the » communication and by the State party,

Adopts the following:

Views under article 5. paragraph 4. of the Optional Protocol”

1. The author of the communication is Pierre Giry, a French citizen, formerly a

resident of Saint-Barthélemy (Antilles), at present detained at a Federal

penitentiary in the United States. He is represented dy counsel.

The complaint

2. The author claimp to be the victim of violations by the Government of the

Dominican Republic of article 9, paragraphs 1 and 2, articles 12 and 13 in

conjunction with articles 2 anc 3 of the International Covenant on Civil and

Political Rights. In particular, he contends that his detention of nearly three

hours by the Dominican authorities violated article 9, because he was prevented

from taking his intended flight to Saint-Barthélemy, thereby depriving him of his

right to liberty of movement under article 12, and that he was subjected to an

illegal expulsion contrary to article 13 of the Covenant, since he was deported by

force without the benefit of any administrative or judicial procedures.

Background

3.1 According to the author, he arrived in the Dominican Republic on

2 February 1985, stayed there for two days and then, on 4 February, wen’ to the

* The text of an individual opinion submitted by Miss Christine Chanet and

Messrs. Francisco Aguilar Urbina, Nisuke Ando and Bertil Wennergren is appended.

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airport to buy a ticket in order to leave the country on a flight to

Saint-Barthélemy. Two agents in uniform, either belonging to the Dominican police

or to the customs service, took him to the police office at the airport, where he

was subjected to a thorough search. After two hours and forty minutes he was taken

out by a back door leading directly to the runway and made to board an Eastern

Airlines plane bound for Puerto Rico. Upon his arrival in Puerto Rico he was

arrested and charged with conapiracy and attempt to smuggle drugs into the United

States.

3.2 The author was tried before the United States District Court in San Juan,

Puerto Rico and convicted of the offences of conspiracy to import cocaine inco the

United States, and of the use of a communication facility, the telephone, to commit

the crime of conspiracy.

3.3 On 30 April 1986 he was sentenced to 28 years of imprisonment and fined

$250,000. He is serving his term of imprisonment at the Federal Correctional

Institution at Ray Brook, New York.

3.4 With respect to the requirement of exhaustion of domestic remedies in the

Dominican Republic, the author states that remedies vould not be effectively used

since he was expelled within three hours of his arrest.

The State party's observations

4.1 By note of 24 June 1988 the State party informed the Committee "that

Mr. Pierre Giry was deported from the Dominican Republic to the United States of

America on the basis of the extradition treaty existing between the two nations and

by virtue of the internal law on extradition No. 489 of 22 October 1969". ‘The

State party further observed that “in response to this procedure Mr. Giry should

have exhausted the remedies provided for under Nominican legislation before seising

the Committee with the case".

4.2 In a further submission dated 8 June 1990, the State Party contends that in

respect of the alleged violation of article 9 of the Covenant, the provision is

inapplicable to the particular circumstances of the case, since the Dominican

authorities had no intention to arrest Mr. Giry and to detain him in Dominican

territory; their intention was merely to expel him from Dominican territory. The

brief period that he spent at the airport prior to the departure of the flight for

Puerto Rico could not be deemed to be a "detention" within the meaning of _

article 9. If it were to be considered as such, then the State party argues that

it was neither arbitrary nor illegal, aince Mr. Giry was internationally sought on

charges of drug trafficking. His name had appeared on a list of the United States

Drug Enforcement Agency, with which Domiaican authorities co-operate in the spirit

of international co-operation in the struggle against drug trafficking.

4.3 With respect to the alleged violation of article 13 of the Covenant, the State

party contends that there is no violation and invokes that part of the provision

that permits summary expulsicns where compelling reasons of national security

require. It is stated that Mr. Giry constituted a national security danger for the

Dominican Republic, which, as any sovereign State, is entitled to take the

necessary steps to protect national security, public order, and public health and

morals,

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4.4 The State party further argues that its actions must be understood in the

context of the international efforts to apprehend persons involved in the illegal

traffic of drugs, which must be seen as an international crime subject Lv universal

jJuciadiction.

Zasues and proceedings before the Committee

5.1 When considering the communication at its thirty-third session, the Committee

concluded, on the basis of the information before it, that the conditions for

declaring the communication admissible had been met and that it raised issues under

the Covenant that should be examined on the merits. The author had not submitted

the matter for examination elsewhere and there were no effective remedies available

in the Dominican Republic which the author could or should have pursued.

5.2 On 11 July 1988 the Committee declared the communication admissible and

invited the State party to make its written submission on the merits of the case,

in accordance with article 4, paragraph 2, of t:ho Optional Protocol, not later than

by 26 February 1989. The State party was further requested to forward to the

Committee the text of Law No. 489 on extradition, a copy of the decision to

extradite Mr. Giry as well as the text of the relevant laws and regulations

governing the expulsion of aliens. Under cover of a note dated 5 October 1989, thu

State party forwarded a copy of law No. 489. By telefax dated 10 July 1990, the

State party asked for an extension of tima to furnish other documentation. The

Committee understands this request as pertaining to the State party's stated

intention of furnishing the records of the United States District Court in Puerto

Rico in the court case against the author. It deems it unnecessary, however, to

have access to such court records for the consideration of the issues before it.

5.3 The Committee has considered the present communication in tha light of all the

information provided by the parties. It observes that although the communication

concerns an individual suspected of involvement in serious crimes, and later

convicted of having perpetrated the very same offences, his rights under the

Covenant must be respected.

5.4 The Committee has noted that the author has invoked a number of provisions of

the Covenant, which he alleges to have been violated in his case. The Committee

observes, however, that the facts as placed before it, basically raise issues under

article 13 of the Covenant. It will limit itself to those issues.

5.5 The State party initially submitted hat the author was deported from

Dominican territory on the basis of an extradition treaty between the Dominican

Republic and the United States of America. The State party has also referred to

the action as expulsion. Regardless of whether the action against the author is

termed extradition or expulsion, the Committee confirms, as it has done in its

general comments on the provision in question, a/ that “expulsion” in the context

of article 13 must be understood broadly and observes that extradition comes within

the scope of the article, which provides:

"An alien lawfully in the territory of a State party to the present “Covenant

may be expelled therefrom only in pursuance of a decision reached in

accordance with law and shall, except where compelling reasons of national

security otherwise require, be allowed to submit the reasons agiinst his

expulsion and to have his case reviewed by, and be represented for the purpose

before, the competent authority or a person or persons especially designated

by the competent authority."

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The Committee notes that, while the State party has specifically invoked the

exception based on reasons of national security for the decision to force him to

board a plane destined for the jurisdiction of the United States of America, it was

the author's very intention to leave the Dominican Republic at his own volition for

another destination. In spite of several invitations to do so, the State party has

not furnished the text of the decision to remove the author from Dominican

territory or shown that the deciaion to do so was reached “in accordance with law"

as required under article 13 of the Covenant. Furthermore, it is evident that the

author was not afforded an opportunity, in the circumstances of the extradition, to

submit the reasons against his expulsion or to have his case reviewed by the

competent authority. While finding a violation of the provisions of article 13 in

the specific circumstances of Mr. Giry's case, the Committee stresses that States

are fully entitled vigorously to protect their territory against the menace of drug

dealing by entering into extradition treaties with other States. But practice

under such treaties must comply with article 13 of the Covenant, as indeed would

have been the case, had the relevant Dominican law been applied in the present. case.

6. The Human Rights Committee, acting under article 5, paragraph 4, of the

Optional Protocol to the International Covenant on Civil and Political Rights, is

of the view that the facts as presented disclose violations of article 13 of the

International Covenant on Civil and Political Rights and that the State party has

an obligation to ensure that similar violations do not occur in the future.

{Done in English, French, Russian and Spanish, the English text being the original

version. }

Notes

B/ “(Article 13) is applicable to all procedures aimed at the obligatory

departure of an alien, whether described in national law as expuision or

otherwise". (Official Records of the General Assembly. Forty-first Session,

Supplement No. 40 (A/41/40), annex VI, para. 9.)

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APPENDIX

(Original: french)

In the view of the four signatories of this separate opinion, the

communication should be considered in relation to articles 9 and 12 of the Covenant

and not to article 13.

It, appears from the information available to the Committee at the time when it

took ite decision that the arreat of Mr. Giry after he had been in the territory of

the Dominican Republic for two days, his detention at the airport and his forcible

transfer to the aeroplane of a foreign State to which he was handed over forthwith

and against his will should be regarded us an act of violence.

This concept of administrative law is defined as a decision not capable of

being related to an act falling within the competence of the administration.

In the present case, the Dominican Republic was not able to produce or refer

to any administrative act ordering the expulsion or extradition of Mr. Giry before

or after his arrest at the airport.

Had there been an administrative act, even an irregular one, this might have

been a case of expulsion falling within the scope of article 13.

In the absence of such an act, identifiable, inter alia, by its date, by the

authority taking the decision and by ite nature, it appears to the signatories that

the arrest of Mr. Giry and his enforced boarding of an Eastern Airlines flight when

ho wished to travel to Saint-Barthélemy constitute unlawful and arbitrary arrest

within the meaning of article 9, paragraph 1, of the Covenant.

Furthermore, since the arbitrary arrest involve4 not only dep:iving the author

of his liberty but also, and more particularly, preventing him from travelling to

another country of his choice and since he was obliged, against his will, to take a

flight other than the one which he would have taken, the arrest. in question also

constitutes, in our opinion, a violetion of article 12 of the Covenant.

Christine CHANET

Francisco AGUILAR URBINA

Nisuke ANDO

Bertil WRNNERGREN

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