CCPR/C/52/D/386/1989

UNITED CCPR

NATIONS

international Covenant bist

ae o.e . Istr.

on Civil and Political Rights RESTRICTED */

CCPR/C/52/D/386/1989

27 October 1994

Original : ENGLISH

ae te

HUMAN RIGHTS COMMITTEE

Fifty-second session

VIEWS

Communication No. 386/19&9

Submitted by: Famara Koné

Victim: The author

State party: Senegal

Date of communication: 5 December 1989 (initial submission)

Documentation references: Prior decisions - Special Rapporteur's rule 91

decision, transmitted to the

State party on

27 November 1990

(not issued in document form)

~ CCPR/C/43/D/386/1989

(Decision on admissibility,

dated 5 November 1991)

Date of adoption of Views: 21 October 1994

On 21 October 1994, the Human Rights Committee adopted its Views under

article 5, paragraph 4, of the Optional Protocol in respect of communication

No. 386/1989. The text of the Views is annexed to the present document.

[ANNEX]

* Made public by decision of the Human Rights Committee.

VWS386.52e cb

GE.94-70459

CCPR/C/52/D/366/1989

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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

- FIFTY-SECOND SESSION -

concerning

Communication No. 386/1989 */

Submitted by: Famara Koné

" Vietim: The author

State party: Senegal

Date of communication: 5 December 1989 (initial submission)

Date of decision on admissibility: 5 November 1931

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Rights,

Meeting on 21 October 1994,

Havina concluded its consideration of communication No. 38€/1989

submitted to the Human Rights Committee by Mr. Famara Koné under the Optional

Protocol to the International Covenant on Civil and Political Rights,

Having taken into account ail written information made available to it

by the author of the communication and the State party,

Adopts its Views under article 5, paragraph 4, of the Optional Protocol.

/ Pursuant to rule 85 of the Committee's rules of procedure,

Mr. Birame Ndiaye did not participate in the adoption of the Committee's

Views.

N

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1. The author of the communication is Famara Koné, a Senegalese citizen

born in 1952 and registered resident of Dakar, currently domiciled in

Ouagadougou, Burkina Faso. He claims to be a victim of violations of his human

‘rights by Senegal but does not specifically invoke his rights under the

International Covenant on Civil and Political Rights.

The facts as submitted by the author:

2.1 The author submits that in 1978, he joined the "Movement for Justice in

Africa" (Mouvement pour la Justice en Afrique), whose aim is to assist the

oppressed in Africa. On January 1 ’ e was arrested in Gambia by

Senegalese soldiers, allegedly for protesting against the intervention of

Senegalese troops in Gambia after an attempted coup on 30 July 1981. He was

transferred to Senegal, where he was detained for over four years, pending his

trial, until his provisional release on 9 May 1986.

2.2 Mr. Koné claims, without giving details, that he was subjected to

torture by investigating officers during one week of interrogation; he

indicates that, since his release, he has been in need of medical supervision

as a result. He further notes that despite his persistent requests to the

regional representative(s} of the U.N. High Commissioner for Refugees, he was

denied refugee status both in Gambia and Benin (1988), as well as in the Ivory

Coast (1989) and apparently now in Burkina Faso (1992).

2.3 The author states that, after presidential elections in Senegal on 28

February 1988, he was re-arrested and detained for several weeks, without

charges. He was released on 18 April 1988 by decision of the regional court

of Dakar (Tribunal régional). He contends that, after participating in a

political campaign in Guinea-Bissau directed against Senegal, he was once

again arrested when he sought to enter Senegal on 6 July 1990. He was detained

for six days, during which he claims to have been once again tortured by the

security police, which tried to force him to sign a statement admitting

attacks on State security and cooperating with the intelligence services of

another State.

2.4 According to the author, his family in Dakar is being persecuted by the

Senegalese authorities. On 6 June 1990, the regional court of Dakar confirmed

an eviction order served by the departmental court (Tribunal départemental)

of Dakar on 12 February 1990. As a result, the author and his family had to

leave the house in which they had resided for the past forty years. The

decision was taken at the request of the new owner, who had bought the

property from the heirs of the author's grandfather in 1986. The author and

his father challenged the validity of the act of sale and reaffirmed their

right to the property. The municipal authorities of Dakar, however, granted

a lease contract to the new owner on the basis of the act of sale, thereby

confirming - without valid grounds in the author's opinion - the latter's

right to the property. .

2.5 As to the requirement of exhaustion of domestic remedies, the author

affirms, without giving details, that as an opponent to the government, it is

not possible for him to lodge a complaint against the State party's

authorities. In this context, he claims that he has been threatened on several

occasions by the security police.

The complaint:

3. Although the author does not invoke any of the articles of the

International Covenant on Civil and Political Rights, it appears from the

context of his submissions that he claims violations of articles 7, 9 and 19.

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The State party's information and observations:

4.1 The State party contends that the author is not at all a victim of

political persecution and has not been prevented from expressing his opinions,

but that he is merely a person rebellious to any type of authority.

4.2 Concerning the author's allegation of torture and ill-treatment, the

State party indicates that torture constitutes a punishable offence under the

Senegalese Criminal Code, which provides for various penalties for acts of

torture and ill-treatment, increasing in severity to correspond with the

gravity of the physical consequences of the torture. Other provisions of the

Criminal Code provide for an increase of the punishment if the offence is

committed by an official or civil servant in the exercise of his functions.

Pursuant to article 76 of the Code of Criminal Procedure, the author could

have and should have submitted a complaint to the competent judicial

authorities against the police officers held responsible for his treatment.

The State party further points out that Mr. Koné had the possibility, forty-

eight hours after his apprehension, to be examined by a doctor, at his own

request or that of his family, under article 56, paragraph 2, of the Code of

Criminal Procedure.

4.3 Concerning the author's allegation of arbitrary detention in 1982, the

State party points out that Mr. Kone was remanded by order of an examining

magistrate. As this order was issued by an officer authorized by law to

exercise judicial power, his provisional detention cannot be characterized as

illegal: or arbitrary. Furthermore, articles 334 and 337 of the Penal Code

criminalize acts of arbitrary arrest and detention. After his provisional

release (élargissement) on 9 May 1986, Mr. Koné could have seizec the

competent judicial authorities under article 76 of the Code of Criminal

Procedure.

4.4 With regard to the allegations pertaining to the eviction order, the

State party observes that the judgment which confirmed the order (i.e. the

judgment of the Tribunal régional) could have been appealed further to the

Supreme Court, pursuant to article 3 of Decree No. 60-17 of 3 September 1960,

concerning the rules of procedure of the Supreme Court) and article 324 of the

Code of Civil Procedure. Furthermore, as the Senegalese courts have not yet

ruled on the substance of the matter, i.e. the title to the property, the

author could have requested the civil court to rule on the substance.

The Committee's admissibility decision:

5.1 During its 43rd session, the Committee considered the admissibility of

the communication. It noted that the author's claim concerning the eviction

from his family home releted primarily to alleged violations of his right to

property, which is not protected by the Covenant. Since the Committee is only

competent to consider allegations of violations of any of the rights protected

under the Covenant, the author's claim in respect of this issue was deemed

inadmissible under article 3 of the Optional Protocol.

§.2 Concerning the claim that the author had been tortured and ill-treated

by the security police, the Committee noted that the author had failed to take

steps to exhaust domestic remedies since he allegedly could not file

complaints against Senegalese authorities as a political opponent. It

considered, however, that domestic remedies against acts of torture could not

be deemed a priori ineffective and, accordingly, that the author was not

absolved from making a reasonable effort to exhaust them. This part of the

communication was therefore declared inadmissible under article 5, paragraph

2(b), of the Protocol.

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5.3 As to the allegations relating to articles 9 and 19, the Committee noted

that the State party had failed to provide information on the charges against

Mr. Koné, nor on the applicable law governing his detention from 1982 to 1986,

from February to April 1988 and in July 1990, nor sufficient information on

effective remedies available to him. It further observed that the State

party's explanation that the period of detention 1982-1986 could not be deemed

arbitrary simply because the detention order was issued by judicial authority

did not answer the question whether the detention was or was not contrary to

article 9. In the circumstances, the Committee could not conclude that there

were effective remedies available to the author and considered the

requirements of article 5, paragraph 2(b), of the Optional Protocol to have

been met in this respect.

5.4 On 5 November 1991, therefore, the Committee declared the communication

admissible in so far as it appeared to raise issues under articles 9 and 19

of the Covenant. The State party was requested, in particular, to explain the

circumstances under which the author was detained from 1982 to 1986, in 1988

and in 1990, indicating the charges against him and the applicable

legislation, and to forward to the Committee copies of the detention order(s)

issued by the examining magistrates and of the decision of the Tribunal

régional of Dakar of 18 April 1988.

The State party's information on the merits of the communication:

6.1 In -its submission on the merits, the State party provides the

information requested by the Committee. As to the period of detention 1982-

1986, it observes that the author was detained pursuant to a detention order

(mandat de dép6ét) issued by the Senior Examining Magistrate of Dakar, after

having been formally charged with acts threatening national security. This was

duly recorded under No. 406/€2 in the register of complaints of the

prosecutor's office of Dakar as well as under registry number 7/82 at the

office of the examining magistrate. The acts attributed to the author are an

offence under Section 80 (Chapter I) of the Senegalese Penal Code.

6.2 The procedure governing provisional custody is governed by article 139

of the Code of Criminal Procedure, which provides for the issuance of a

detention order upon request of the Department of Public Prosecutions.

Paragraph 2 of this article stipulates that a request for release on bail must

be rejected if the public prosecutor's office files a written objection to the

request. Notwithstanding, a request for release on bail may at any moment be

formulated by the accused or his representative. The magistrate is obliged to

rule, by reasoned decision (par ordonnance spécialement motivée) within five

days of the receipt of the request. If the magistrate does not decide within

the deadline, the accused may directly appeal to the competent chamber of the

Tribunal Correctionnel (artigle 129, paragraph 5); and if the request for

release on bail is rejected, the accused may appeal in accordance with the

provisions of article 180 of the Code of Criminal Procedure.

6.3 Upon concluding his investigations in the case, the examining magistrate

concluded that the charges against Mr. Koné were substantiated and

accordingly, ordered his case to be tried by the criminal court of Dakar.

However, in the light of the author's character and previous documented

behaviour, the magistrate considered it appropriate to request a mental status

examination and, pending its results, ordered the author's provisional release

on 9 May 1986, by judgment No. 1898. The judicial procedure never led a

judgment on the merits, as the author fell under the provisions of Amnesty Law

No. 88-01 of 4 June 1988.

6.4 In its additional comments on the merits, dated 25 February 1994, the

Senegalese Government recounts the circumstances under which the author was

held in detention between 1982 and 1986. It states that after his arrest, Mr.

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Koné was brought before an examining magistrate who, applying the provisions

of article 101 of the Code of Criminal Procedure, informed him, by way of an

indictment, of the charges entered against him, advised him of his right to

choose counsel from among the lawyers listed in the Roster, and placed him

under a detention order on 28 January 1982. At the conclusion of a legitimate

preliminary investigation, he was committed for trial by the examining

magistrate, pursuant to a committal order dated 10 September 1983. The State

party specifies that the author “never formulated a request for release

throughout the investigation of his case", as authorized by articles 129 and

130 of the Code of Criminal Procedure. The State party concludes that "no

expression of any intention to obstruct his provisional release can be deduced

from these proceedings".

6.5 The State party stresses that after he was committed to the competent

court, the author received a notice to appear before the court on 10 December

1983; the case was not, however, heard on that date; a series of postponements

followed. The State party adds that the author "did not file a request for

provisional release until mid-May 1986, a request which was granted pursuant

to an interlocutory judgment rendered on 9 May 1986".

6.6 With regard to the purpose of Amnesty Law No. 88-01 of 4 June 1988,

which was applied to the author, the State party points out that the law does

not apply only to the Casamance events, even though it was passed in the

context of efforts to contain them. It adds that "the detention period of the

person concerned coincided with a period of serious disturbances of national

public order caused by the Casamance events, and the State Security Court, the

only court of special jurisdiction in Senegal, had to deal with the cases of

286 detainees between December 1982 and 1986", when that Court consisted only

of a president, two judges, one government commissioner, and an examining

magistrate.

6.7 The State party notes furthermore that, although under the terms of

article 9, paragraph 3, of the Covenant, pre-trial detention should not be the

rule, it may nevertheless constitute an exception, especially during periods

-of serious unrest, and given that the accused, committed for trial and

summoned to appear on a fixed date, had never expressed a wish of any kind to

be granted provisional release. It concludes that the preliminary

investigation and inquiry were conducted in an entirely legitimate manner, in

accordance with the applicable legal provisions and with the provisions of

article 9 of the Covenant.

6.8 In further submissions dated’ 4 and 11 July 1994, the State party

justifies the length of the author's pre-trial detention between 1982 and May.

- 1986 with the complexity of the factual and legal situation. It notes that the

author was a member of several revolutionary groups of Marxist and Maoist

inspiration, which had conspired to overthrow several governments in Western

Africa, including in Guinea Bissau, Gambia and Senegal. To this effect, the

author had frequently travelled to the countries neighbouring Senegal, where

he visited other members of this revolutionary network or foreign government

representatives. It also observes that it suspected the author of having

participated in an unsuccessful coup attempt in Gambia in December 1981, and

that he had sought to destabilize the then Government of Sekou Touré in

Guinea. In the light of these international ramifications, the State party

claims, the judicial investigations in the case were particularly complex and

protracted, as they necessitated formal requests for judicial cooperation with

other sovereign states.

6.9 In a final submission dated 2 September 1994, the State party reiterates

that the detention of Mr. Koné was made necessary because of well-founded

suspicions that his activities were endangering the State party's internal

security. After his release on bail, the State party observes, no judicial

instance in Senegal has ever been seized by Mr. Koné with a request to

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determine the lawfulness of his detention between January 1982 and May 1986.

Given the author's "passivity" in pursuing remedies which were available to

him, the State party concludes that the author's claims are inadmissible on

the basis of non-exhaustion of domestic remedies.

6.10 Concerning the author's detention in 1988, the State party affirms that

Mr. Koné'’s detention did not last two months but only six days. He was

arrested and placed in custody on 12 April 1988, upon orders of the Public

Prosecutor of Dakar, and charged with offences against the Law on States of

Emergencies (Law 69-26 of 22 April 1969, Decree No. 69-667 of 10 June 1969 and

No. 88-229 of 29 February 1988, Ministerial Decree No. 33364/M.INT of 22 March

1988). He was tried, together with eight other individuals, by a Standing

Court (Tribunal des Flagrants Délits), which, by judgment No. 1891 of 18 April

1988, ordere is release.

6.11 The State party observes that the author has neither been re-arrested

nor been the target of judicial investigations or procedures since his release

in April 1988. If he had been arrested or detained, there would have been a

duty, under articles 55 and 69 of the Code of Criminal Procedure, to

immediately notify the Office of the Public Prosecution. No such notification

was ever received. Furthermore, had the author been detained arbitrarily in

1990, he could, upon release, have immediately filed a complaint against those

held responsible for his detention; no complaint was ever received in this

context. -

6.12 The State party concludes that there is no evidence of a violation of

any provisions of the Covenant by the Senegalese judicial authorities.

7.1 In his comments, the author seeks to refute the accuracy of the State

party's information and chronology. Thus, he claims that he was first

requested on 2 September 1983 to appear before the Tribunal Correctionnel on

1 December 1983. On this occasion, the president of the court requested

further information (complément d'information) and postponed the trial to an

unspecified subsequent date. On the same occasion and not in the spring of

1986, as indicated by the State party, a mental status examination was ordered

by the court. The author forwards a copy of a medical certificate signed by

a psychiatrist of a Dakar hospital, and which confirms that a mental status

examination was carried out on the author on 25 January 1985; it concluded

that Mr. Koné suffered from pathological disorder (pathologie psychiatrique)

and needed continued medical supervision ("pathologie ... a traiter

sérieusement").

7.2 The author reiterates that he was tried on 1 December 1983 by the

Tribunal Correctionnel, that the court adjourned to consider its findings

until 15 December 1983, and that his family was present in the courtroom.

According to him, that version can be corroborated by the prison log.

7.3 As for the State party's argument that he never filed a request for

provisional release, the author simply notes that he had protested his

arbitrary detention to several members of the judiciary visiting the prison

where he was held, and that not until 1986 did a member of the staff of the

Government Procurator's office and the prison's social services suggest that

he request provisional release.

7.4 The author affirms that his arrest in January 1982 was the result of

manoeuvres orchestrated by the Senegalese ambassador in Gambia, who had been

angered by the author's leading role, between 1978 and 1981, in several

demonstrations, which had inter alia caused damage to the building of the

Senegalese Embassy in Banjul’: —

, The author, in a letter dated 10 August 1992, admits to having

broken windows in the building of the Senegalese Embassy in Banjul.

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7.5 Concerning the period of detention in 1988, the author recalls that he

was arrested “around 2 March 1988" together with several other individuals and

questioned about the violent incidents that had accompanied the general

elections of February 1988. He was released "around 20 March 19688", after

having addressed a letter to President A. Diouf about his allegedly arbitrary

detention. On 6 April 1988, he was re-arrested, and after six days spent in

a police lock-up, indicted on 12 April 1988. On 18 April 1988, he was released

by decision of the Tribunal Régional of Dakar’.

7.6 The author reaffirms that he was placed once more in custody in 1990;

he claims that he was arrested at the border and transferred to Dakar, where

he was detained by agents of the Ministry of the Interior. He was booked and

made to sign a statement (procés-verbal) on 12 July 1990, which accused him

inter alia of offences against State security. He ignores why he was released

‘on the same day.

7.7 Finally, the author affirms that he was once more apprehended on 20 July

1992 and detained for several hours. He was allegedly questioned in relation

with a manifestation that had taken place in a popular quarter of Dakar. The

Government apparently suspects him of sympathizing with the separatist

Movement of Casamance's Democratic Forces (Mouvement des Forces Démocratiques

de la Casamance - MFDC) in the South of the country, where separatists have

clashed violently with government forces. The author denies any involvement

with the MFDC and claims that as a result of constant surveillance by the

State party's police and security services, he suffers from nervous disorders. -

7.8 The author concludes that the State party's submissions are misleading

and tendentious, and affirms that these submissions seek to cover serious and

persistent human rights violations in Senegal.

Examination of the merits:

8.1 The Human Rights Committee has examined the communication in the light

of all the information provided by the parties, as provided for in article 5,

paragraph 1, of the Optional Protocol.

8.2 The Committee notes that the author does not question the legal nature

of the charges against him, as described in the State party's submission under

article 4, paragraph 2, of the Optional Protocol - he does however reject in

general terms the factual accuracy of part of the State party's observations,

while some of his statements contain blanket accusations of bad faith on the

part of the State party. Conversely, the State party's submission does not

address issues under article 19 other than by affirming that the author is

adverse to any type of authority, and confines itself to the chronology of

administrative and judicial proceedings in the case. In the circumstances, the

Committee has examined whether such information as has been submitted is

corroborated by any of the parties' submissions.

8.3. As to the claims of violations of article 9, the Committee notes that,

in respect of the author's detention from 1982 to 1986 and in the spring of

1988, the State party has provided detailed information about the charges

against the author, their legal qualification, the procedural requirements

under the Senegalese Code of Criminal Procedure, and the legal remedies

available to the author to challenge his detention. The records reveal that

these charges were not based, as claimed by the author, on his political

activities or upon his expressing opinions hostile to the Senegalese

government. In the circumstances, it cannot be concluded that the author's

arrest and detention were arbitrary or not based "on such grounds and in

2 The decision simply orders the release of the author and eight

other co-accused, but is not motivated.

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accordance with such procedure as are established by law". However, there are

issues concerning the length of the author's detention, which are considered

below (paragraphs 8.6 to 8.8).

“8.4 As to the author's alleged detention in 1990, the Committee has taken

note of the State party's argument that its records do not reveal that Mr.

Koné was again arrested or detained after April 1988. As the author has not

corroborated his claim by further information, and given that the copies of

the medical reports he refers to in support of his claim of ill-treatment pre-

date the alleged date of his arrest (6 July 1990), the Committee concludes

that the claim of a violation of article 9 in relation to the events in July

1990 has not been sufficiently corroborated.

8.5 Similarly, the State party has denied that the author was arrested for

the expression of his political opinions or because of his political

affiliations, and the author has failed to adduce material to buttress his

claim to this effect. Nothing in the material before the Committee supports

the claim that the author was arrested or detained on account of his

participation in demonstrations against the regime of President Diouf, or

because of his presumed support for the Movement of Casamance's Democratic

Forces. On the basis of the material before it, the Committee is of the

opinion that there has been no violation of article 19.

8.6 The Committee notes that the author was first arrested on 15 January

1982 and released on 9 May 1986; the length of his detention, four years and

almost four months, is uncontested. It transpires from the State party's

submission that no trial date was set throughout this period, and that the

author was released provisionally, pending trial. The Committee recalls that

under article 9, paragrap; anyone arrested or detained on a criminal charge

shall be brought promptly before a judge ... and shall be entitled to trial

within a reasonable time or to release. What constitutes "reasonable time”

within the meaning of article 9, paragraph 3, must be assessed on a case-by-

case basis.

8.7 A delay of four years and four months during which the author was kept

in custody (considerably more taking into account that the author's guilt or

innocence had not yet been determined at the time of his provisional release

on 9 May 1986) cannot be deemed compatible with article 9, paragraph 3, in the

absence of special circumstances justifying such delay, such as that there

were, or had been, impediments to the investigations attributable to the

accused or to his representative. No such circumstances are discernible in the

present case. Accordingly, the author's detention was incompatible with

article 9, paragraph 3. This conclusion is supported by the fact that the

charges against the author in 1982 and in 1988 were identical, whereas the

duration of the judicial process on each occasion differed considerably.

9. The Human Rights Committée, 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 found by the Committee reveal a violation of

article 9, paragraph 3, of the Covenant.

10. The Committee is of the view that Mr. Famara Koné is entitled, under

article 2, paragraph 3(a), of the Covenant, to a remedy, including appropriate

compensation. The State party is under an obligation to ensure that similar

violations do not occur in the future.

11. Bearing in mind that, by becoming a State 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 or not 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 to provide an effective and enforceable

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remedy in case a violation has been established, the Committee wishes to

receive from the State party, within ninety days, information about the

measures taken to give effect to its Views.

[Adopted in English, French and Spanish, the English text being the original

version. Subsequently to be issued also in Arabic, Chinese and Russian as part

of the Committee's annual report to the General Assembly.]

woke