CCPR/C/43/D/336/1988

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CCPR/C/43/D/336/1988

6 November 1991

Original: ENGLISH

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HUMAN RIGHTS COMMITTEE

Forty-third session

DECISIONS

Communication No. 336/1988

Submitted by :

Nicole Fillastre (victim's wife)

Alleged victims :

André Fillastre and Pierre Bizouarn

State party :

Bolivia

Date of communication :

27 September 1988

(date of initial submission)

Documentation references

: Prior decisions - CCPR/C/WG/35/D/336/1988

(Working Group rule 91

decision, dated

14 March 1989)

- CCPR/C/WG/36/D/336/1988

(further Working Group

rule 91 decision, dated

5 July 1989)

- CCPR/C/40/D/336/1988

(decision on

admissibility, dated

6 November 1990)

Date of present decision

: 5 November 1991

On 5 November 1991, the Human Rights Committee adopted its

views under article 5, paragraph 4, of the Optional Protocol,

concerning communication No. 336/1988. The text of the views is

annexed to the present document.

[Annex]

__________

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Made public by decision of the Human Rights Committee

DEC336.43 MS/cm

ANNEX

Views of the Human Rights Committee under article 5, paragraph 4,

of the Optional Protocol to the International Covenant

on Civil and Political Rights

- Forty-third session -

concerning

Communication No. 336/1988

Submitted by :

Nicole Fillastre (victim's wife)

Alleged victims :

André Fillastre and Pierre Bizouarn

State party :

Bolivia

Date of communication :

27 September 1988 (date of initial

submission)

The Human Rights Committee

, established under article 28 of the

International Covenant on Civil and Political Rights,

Having considered communication No. 336/1988, submitted to the

Committee for consideration under the Optional Protocol to the

Covenant by Mrs. Nicole Fillastre on behalf of her husband, Mr.

André Fillastre, and on behalf of Mr. Pierre Bizouarn,

Meeting on 5 November 1991,

Adopts the following Views under article 5, paragraph 4, of the

Optional Protocol.

The facts as presented by the author

:

l.

The author of the communication (initial submission dated 27

September 1988 and subsequent correspondence) is Nicole Fillastre, a

French citizen residing in Le Havre, France. She submits the

communication on behalf of her husband, André Fillastre, a French

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citizen and private detective by profession, currently detained at

the prison of San Pedro in La Paz, Bolivia, together with another

private detective, Pierre Bizouarn. By letter dated 25 May 1989,

Mr. Bizouarn authorized Mrs. Fillastre to act on his behalf.

2.1

The author states that on 26 August 1987, André Fillastre and

Pierre Bizouarn travelled to La Paz accompanied by Ms. Silke

Zimmerman, a German citizen then residing in France. André Fillastre

was travelling in his capacity as a private detective on behalf of

Ms. Zimmerman, who had requested his services in order to find and

repatriate her four-year old son, Raphael Cuiza Zimmerman, living in

Bolivia. Her son had allegedly been taken away from his mother by

his Bolivian father, Jorge Cuiza, and flown to Bolivia.

2.2

On 3 September l987, André Fillastre, Mr. Bizouarn and Ms.

Zimmerman were arrested by the Bolivian police, after a complaint

had been filed by the child's father, who claimed that they had

manipulated their way into his home and started a brawl in which he

was injured. The two detectives allegedly had abducted the child

and left the home, together with the mother. Criminal proceedings

were instituted against them. On l2 September l987, the examining

magistrate indicted the accused on three grounds: (a) kidnapping of

a minor (secuestro y rapto propio), punishable under article 313 of

the Bolivian Penal Code; (b) unauthorized entry into a home

(allanamiento de domicilio o sus dependencias; article 298 of the

Bolivian Penal Code), and (c) causing grievous bodily harm (lesiones

graves y leves; article 271 of the Bolivian Penal Code). Allegedly,

he did so without having interrogated the accused. Nevertheless,

Ms. Zimmerman was released a few days later, apparently without

plausible explanations. Messrs. Fillastre and Bizouarn, however,

were placed under detention and imprisoned at the prison of San

Pedro in La Paz, where they continue to be held.

2.3

With regard to the requirement of exhaustion of domestic

remedies, the author states that the judicial proceedings against

her husband and Mr. Bizouarn have been pending before the court of

first instance since 12 September 1987. In this context, she

indicates that, on 12 June 1990, the judge was expected to render

his decision in the case but that, since the legal aid attorney

assigned to her husband did not appear in court, he decided to

further postpone the hearing.

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The complaint :

3.1

It is submitted that Messrs. Fillastre and Bizouarn were not

able to adequately communicate either with their lawyer or with the

examining magistrate, before whom they were brought on 3 September

1988, one year after their arrest. In particular, it is alleged

that the interpreter who had been designated to assist them could

only speak English, a language they did not master. Further, they

allege that their statements before the examining magistrate were

not only recorded incorrectly but deliberately altered.

3.2

It is submitted that Messrs. Fillastre and Bizouarn were held

in custody for ten days without being informed of the charges

against them; this was reportedly confirmed by the arresting

officer, upon interrogation by the examining magistrate. As to the

circumstances of the investigatory phase of the judicial

proceedings, the author claims that several irregularities occurred

in their course. Furthermore, the court hearings allegedly were

postponed repeatedly because either the legal aid attorney or the

prosecutor failed to appear in court. More generally, the author

claims bias on the part of the judge and of the judicial

authorities. This is said to be evidenced by the fact that the

Bolivian authorities allowed Ms. Zimmerman to leave Bolivia without

any plausible justification and never sought her testimony before

the examining magistrate, although she had been indicted together

with Messrs. Fillastre and Bizouarn.

3.3

As to the conditions of detention at the prison of San Pedro,

they are said to be inhuman and degrading. In this context, the

author submits that, on account of the psychological stress as well

as the poor conditions of detention, her husband has become addicted

to alcohol and drugs and lost his will to live.

3.4

Finally, the author claims that her countless efforts, since

mid-September 1987, to obtain her husband's release have not met

with any response. She maintains that, notwithstanding the various

promises made to her by the French authorities, no official attempt

was made to obtain her husband's release, nor to improve the

conditions of his detention.

The State party's information and observations

:

4.1

The State party provides a chronology of the judicial

proceedings in the case and indicates that a judgment at first

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instance may be expected by mid-August 1991. It notes that the

preliminary investigations were initiated on 14 September 1987, with

the consent of the examining magistrate (Juez Instructor en lo

Penal); they were concluded by decision of 29 December 1988 (auto

final), which committed Messrs. Fillastre and Bizouarn to stand

trial for the offences referred to in paragraph 2.2 above. This

decision was challenged by the alleged victims on 16 and 22 February

1989, respectively.

4.2 The proceedings were then transferred to the Magistrates Court

(Juez Quinto de Partido en lo Penal). The State party indicates

that the process of evidence gathering, reconstruction of the facts

and hearing of witnesses has been protracted, but that it is

approaching its final stage. Such delays as occurred are said to be

partly attributable to the judge's desire to gather further

evidence, which would enable him to render his judgment.

4.3 The State party points out that Messrs. Fillastre and Bizouarn

are likely to be found guilty of the offences for which they were

indicted, in particular the kidnapping of a minor (article 313 of

the Penal Code); this offence is punishable by imprisonment of one

to five years. In the event of their conviction, they would retain

the right to appeal conviction and sentence (recurso de apelación),

pursuant to articles 284 and 288 of the Bolivian Code of Criminal

Procedure. In the event of an unsuccessful appeal, they would be

able to subsequently request the cassation of the judgment of the

Court of Appeal (recurso de nulidad), pursuant to article 296 of the

Code of Criminal Procedure.

4.4

In respect of the author's claim of a violation of articles 14,

paragraph 3(b) and (d), the State party contends that both Mr.

Fillastre and Mr. Bizouarn have received legal assistance throughout

the proceedings, not only from the French consulate in La Paz, but

also from one privately and one court-appointed lawyer. The alleged

victims have consistently assisted the court sessions, together with

their representatives.

4.5 The State party further contends that since the authors were

properly indicted and the judicial proceedings continue to take

their normal course, the accused remain lawfully detained at the

Prison of San Pedro in La Paz. The State party does not, however,

indicate whether the accused were promptly informed of the charges

against them, and whether they were brought promptly before a judge

or other officer authorized by law to exercise judicial power.

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4.6 As to the author's complaint about undue delays in the judicial

proceedings, the State party points out that criminal investigations

under Bolivian law are carried out in written form, which implies

that administrative and other delays may occur. Furthermore, the

absence of an adequate budget for a proper administration of justice

means that a number of criminal cases and certain specific

procedural phases of criminal proceedings have experienced delays.

4.7 The State party indicates that it has established a special

commission of investigation to enquire into the author's allegation

of ill-treatment and inhuman and degrading prison conditions. The

report of this commission, whose findings are said to be confirmed

by Messrs. Bizouarn and Fillastre, concludes that both prisoners are

in good health and receive basic but adequate medical attention;

that they are detained in the most comfortable sector of the San

Pedro prison; that their diet is satisfactory; that they benefit

from recreational facilities; and that they may communicate freely

with friends, their relatives and their legal representatives.

Issues and proceedings before the Committee

:

5.1

Before considering any claims contained in a communication, the

Human Rights Committee must, in accordance with rule 87 of its rules

of procedure, decide whether or not it is admissible under the

Optional Protocol to the Covenant.

5.2

During its 40th session, the Committee considered the

admissibility of the communication. It took note of the State

party's observations and clarifications concerning the current

status of the case before the Bolivian courts, observing that the

victims were still awaiting the outcome of the proceedings

instituted against them in September 1987, that is, more than three

years after their arrest. In the circumstances, the Committee

considered that a delay of over three years for the adjudication of

the case at first instance, discounting the availability of

subsequent appeals, was "unreasonably prolonged" within the meaning

of article 5, paragraph 2(b), of the Optional Protocol. From the

available information, the Committee deduced that such delays as had

been encountered were neither attributable to the alleged victims

nor explained by the complexity of the case. It therefore concluded

that the requirements of article 5, paragraph 2(b), had been met.

5.3

The Committee considered that the communication should be

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examined on the merits as it appeared to raise issues under the

Covenant in respect of the author's claims (a) that Messrs.

Fillastre and Bizouarn were not promptly informed of the charges

against them; (b) that they were not promptly brought before a

judge and interrogated; (c) that they were not afforded adequate

facilities for the preparation of their defence and were unable to

properly communicate with counsel assigned to them; (d) that they

were inadequately represented during the preliminary investigation;

and (e) that they were being subjected to inhuman and degrading

treatment.

5.4 On 6 November 1990, therefore, the Committee declared the

communication admissible in so far as it appeared to raise issues

under articles 9, paragraphs 2 and 3; 10, paragraph 1; and 14,

paragraph 3(b), (c) and (d), of the Covenant.

6.1 The Committee has considered the present communication in the

light of all the information provided by the parties, as provided

for in article 5, paragraph 1, of the Optional Protocol.

6.2 With respect to the allegation of a violation of article 10 of

the Covenant, the Committee observes that the author has not

corroborated, in a manner sufficiently substantiated, her claim that

the prison conditions at the penitentiary of San Pedro are inhuman

and do not

respect the inherent dignity of the human person. The State party

has endeavoured to investigate this claim, and the findings of its

commission of inquiry, which have not been refuted either by the

authors or by the alleged victims, conclude that Messrs. Fillastre

and Bizouarn benefit from basic amenities during detention,

including medical treatment, adequate diet, recreational facilities

as well as contacts with their relatives and representatives. In

the circumstances, the Committee concludes that there has been no

violation of article 10.

6.3 As to the alleged violation of article 14, paragraph 3(b) and

(d), the Committee reaffirms that it is imperative that accused

individuals be afforded adequate time for the preparation of their

defence, and that they be provided with free legal assistance if

they cannot themselves afford the services of a legal

representative. In the present case, it is uncontested that legal

assistance was provided to both Mr. Fillastre and Mr. Bizouarn. Nor

has the State party's claim that the alleged victims have benefitted

from such assistance throughout the proceedings, and that they have

been able to attend hearings before the court together with their

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representatives, been refuted. In these circumstances, the

Committee does not find that either article 14, paragraph 3(b), or

article 14, paragraph 3(d), has been violated.

6.4

As to the alleged violation of article 9, paragraphs 2 and 3,

the Committee observes that the author has stated in general terms

that her husband and Mr. Bizouarn were held in custody for ten days

before being informed of the charges against them, and that they

were not brought promptly before a judge or other officer authorized

by law to exercise judicial power. It remains unclear from the

State party's submission whether the accused were indeed brought

before a judge or judicial officer between their arrest, on 3

September 1987, and 12 September 1987, the date of their indictment

and placement under detention, pursuant to article 194 of the

Bolivian Code of Criminal Procedure. The Committee cannot but note

that there has been no specific reply to its request for information

in this particular respect, and reiterates the principle that, if a

State party contends that facts alleged by the author are incorrect

or would not amount to a violation of the Covenant, it must so

inform the Committee. The pertinent factor in this case is that

both Mr. Fillastre and Mr. Bizouarn allegedly were held in custody

for ten days before being brought before any judicial instance and

without being informed of the charges against them. Accordingly,

while not unsympathetic to the State party's claim that budgetary

constraints may cause impediments to the proper administration of

justice in Bolivia, the Committee concludes that the right of

Messrs. Fillastre and Bizouarn under article 9, paragraphs 2 and 3,

have not been observed.

6.5

Under article 9, paragraph 3, anyone arrested or detained on a

criminal charge "shall be entitled to trial within a reasonable

time...". What constitutes "reasonable time" is a matter of

assessment for each particular case. The lack of adequate budgetary

appropriations for the administration of criminal justice alluded to

by the State party does not justify unreasonable delays in the

adjudication of criminal cases. Nor does the fact that

investigations into a criminal case are, in their essence, carried

out by way of written proceedings, justify such delays. In the

present case, the Committee has not been informed that a decision at

first instance had been reached some four years after the victims'

arrest. Considerations of evidence-gathering do not justify such

prolonged detention. The Committee concludes that there has been,

in this respect, a violation of article 9, paragraph 3.

6.6

The author has further alleged that her husband and Mr.

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Bizouarn have not been tried, at first instance, for a period of

time that she considers unreasonably prolonged. Under article 14,

paragraph 3(c), the victims have the right to "be tried without

undue delay". The arguments advanced by the State party in respect

of article 9, paragraph 3, cannot serve to justify undue delays in

the judicial proceedings. While the accused were indicted on

several criminal charges under the Bolivian Criminal Code on 12

September 1987, the determination of these charges had not resulted

in a judgment, at first instance, nearly four years later; the

State party has not shown that the complexity of the case was such

as to justify this delay. The Committee concludes that this delay

violated the victims' right under article 14, paragraph 3(c).

7.

The Human Rights Committee, acting under article 5, paragraph

4, of the Optional Protocol to the International Covenant on Civil

and Political Rights, finds that the facts before it reveal a

violation of articles 9, paragraphs 2 and 3, and 14, paragraph 3(c),

of the Covenant.

8.

In accordance with the provisions of article 2 of the Covenant,

the State party is under an obligation to take effective measures to

remedy the violations suffered by Messrs. André Fillastre and Pierre

Bizouarn. The Committee has taken note of the State party's

information that the offence for which the authors have been

indicted under article 313 of the Bolivian Criminal Code is

punishable by imprisonment of one to five years, and observes that

the authors have already been detained for a period of four years

and two months. In the circumstances, the State party should grant

the authors a remedy in the form of their immediate release, and

ensure that similar violations do not occur in the future.

9.

The Committee would wish to receive information, within 30

days, on any relevant measures adopted by the State party in respect

of the Committee's Views.

[Done in English, French, Russian and Spanish, the English text

being the original version.]

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