Inadmissibility decision; Subjects: CIVIL AND POLITICAL RIGHTS, PORTUGAL, RIGHT TO A FAIR TRIAL; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
UNITED
NATIONS
CCPR
International covenant
on civil and
political rights
Distr.
RESTRICTED*
CCPR/C/73/D/925/2000/Rev.1
18 September 2002
Original: ENGLISH
HUMAN RIGHTS COMMITTEE
Seventy-third session
15 October-2 November 2001
DECISION
Communication No. 925/2000
Submitted by:
Mr. Wan Kuok Koi (represented by counsel,
Mr. Pedro Redinha)
Alleged victim:
The author
State party:
Portugal
Date of communication:
15 December 1999 (initial submission)
Prior decisions:
Special Rapporteur’s rule 91 decision, transmitted to the State
party on 4 May 2000 (not issued in document form)
Date present decision:
22 October 2001
[ANNEX]
* Made public by decision of the Human Rights Committee.
GE.02-44479 (E) 250902
CCPR/C/73/D/925/2000/Rev.1
page 2
ANNEX
DECISION OF THE HUMAN RIGHTS COMMITTEE UNDER THE
OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT
ON CIVIL AND POLITICAL RIGHTS
Seventy-third session
concerning
Communication No. 925/2000*
Submitted by:
Mr. Wan Kuok Koi (represented by counsel,
Mr. Pedro Redinha)
Alleged victim:
The author
State party:
Portugal
Date of communication:
15 December 1999 (initial submission)
The Human Rights Committee, established under article 28 of the International Covenant
on Civil and Political Rights,
Meeting on:
22 October 2001
Adopts the following:
Decision on admissibility
1.1
The author of the communication, dated 15 December 1999, is Mr. Wan Kuok Koi, a
citizen of Portugal and resident of Macao, at present serving a sentence of imprisonment at
Coloane Prison in Macao. At the time of submission of the communication, Macao was a
* The following members of the Committee participated in the examination of the present
communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal
Bhagwati, Ms. Christine Chanet, Mr. Maurice Glèlè Ahanhanzo, Mr. Louis Henkin,
Mr. Ahmed Tawfik Khalil, Mr. Eckart Klein, Mr. David Kretzmer, Ms. Cecilia Medina Quiroga,
Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Martin Scheinin, Mr. Ivan Shearer,
Mr. Hipólito Solari Yrigoyen and Mr. Maxwell Yalden.
The text of five individual opinions signed by members: Mr. Abdelfattah Amor,
Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal Bhagwati, Mr. Eckart Klein,
Mr. David Kretzmer, Mr. Rafael Rivas Posada, Mr. Martin Scheinin and Mr. Maxwell Yalden,
are appended to the present document.
CCPR/C/73/D/925/2000/Rev.1
page 3
territory under Chinese sovereignty and Portuguese administration (article 292 of the Portuguese
Constitution). The author claims to be a victim of a violation of article 14 of the International
Covenant on Civil and Political Rights. He is represented by counsel.
1.2
Portugal is a party to the International Covenant on Civil and Political Rights
since 15 September 1978 and a party to the Optional Protocol since 3 August 1983. On
27 April 1993, Portugal made a notification concerning the application of the Covenant to
Macao. There is no record of a notification of territorial application of the Optional Protocol to
Macao. However, there is no reservation or declaration by Portugal excluding the application of
the Optional Protocol to Macao.
1.3
At the time of submission of the communication, Macao was still under Portuguese
administration. It reverted to Chinese administration on 20 December 1999, four days after
submission of the communication against Portugal.
1.4
Until 19 December 1999, the status of Macao was governed by the Basic Statute of
Macao of 15 February 1976 (Lei No. 1/76). Article 2 of the Statute stipulated that the territory
of Macao constituted a legal personality under internal public law, with administrative,
economic, financial and legislative autonomy within the framework of the Portuguese
Constitution. The judiciary remained part of the Portuguese administration of justice. Macao’s
status under public international law was also defined in the Sino-Portuguese Joint Declaration
of Beijing of 13 April 1987 (in force 15 January 1988), pursuant to which Macao’s status was
determined to be Chinese territory under Portuguese administration, as already provided for by
secret arrangements of 1976. Indeed, in the Portuguese Constitution of 2 April 1976, Macao is
not included among the territories under Portuguese sovereignty, but is referred to as a territory
under Portuguese administration.
The facts as submitted
2.1
The author was arrested on 1 May 1998 at the Coloane Prison in Macao, under suspicion
of being the moral author of an alleged attempt against the Director of the Macao Judiciary
Police. He was brought before the Judge of Criminal Prosecutions 48 hours later, who
considered that there was no evidence linking the author to the alleged attempt, but that he was
suspected of the crime of secret association. He was accordingly placed in preventive detention.
2.2
In May 1998 the author unsuccessfully challenged his detention before the High Court of
Macao (Tribunal Superior de Justiça de Macao, the Supreme Court of the Territory), judgement
being rendered on 21 July 1998 on the grounds that “the defendant is a member of 14-K (carats)
secret association”.
2.3
The trial at the Court of Generic Competence of Macao (Tribunal de Competência
Genérica) against the author and nine other defendants on the charge of involvement in the crime
of secret association was opened on 27 April 1999 but immediately adjourned to 17 June 1999.
The Chief Judge, however, tendered his resignation and left the Territory of Macao. It is alleged
that pursuant to the applicable procedure, the lawsuit should immediately have been referred to
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the legal substitute of the Chief Judge. Instead of following this procedure, a new judge was
recruited from Portugal, who came to Macao expressly to preside over this trial, and who
returned to Portugal immediately after its conclusion. It is alleged that such procedure was
illegal and in breach of article 31.2 of Decree-Law No. 55/92/M of 18 August 1992.
2.4
The trial was successively postponed to 29 September and 11 October 1999. It is alleged
that the rights of defence were violated, in particular the right to be presumed innocent, which
the Chief Judge is said to have breached by expressing on different occasions, as early as the
initial hearing, a pre-judgement about the author’s guilt. Moreover, it is stated that the defence
attorneys were initially prohibited from having any contact with their clients until the end of the
production of testimonial evidence in court (a measure lifted after protests in the press). The
Macao Bar Association is said to have addressed an urgent communication to the Judiciary
Council of the territory complaining about the judge’s orders dictated into the minutes referring
to the defendants as “naturally dangerous” and suggesting that the attorneys would intimidate the
witnesses.
2.5
Eight of the 10 defendants, amongst them the author, filed a petition requesting the
rejection of the new Chief Judge in view of doubts as to his impartiality on the basis of certain
remarks of the judge allegedly by showing bias, but the High Court (Tribunal Superior de
Justicia de Macao), by judgement of 15 October 1999 dismissed the petition and refused to
decree a suspension of the judge in question, allowing the trial to proceed. A second challenge
against the judge’s impartiality was filed on 25 October 1999 and rejected on 29 October 1999.
On this date author’s counsel withdrew, arguing in a statement presented to the Secretariat of the
Court that he could not continue to assure in a valid and efficient manner his client’s defence.
Following the withdrawal of author’s counsel, the Chief Judge appointed as official defender a
young lawyer who was among the public to attend the hearing, but rejected the new lawyer’s
request for a suspension of the hearing to allow for consultation of the files. Said newly
appointed lawyer also withdrew, whereupon the Chief Judge appointed first one clerk of the
court and then another, neither one of whom had the minimum conditions to assure the defence.
The author was thus tried without the assistance of an attorney of record and without being
offered the opportunity of appointing a new attorney.
2.6
On 29 October 1999 a third petition for the rejection of the Chief Judge was lodged,
which was dismissed on 8 November 1999.
2.7
Judgement was rendered on 23 November 1999, and the author was convicted and
sentenced to 15 years of imprisonment. An appeal was filed with the Court of Second Instance
(Tribunal de Segunda Instância, Case No. 46/2000), which was heard in March 2000, judgement
being rendered on 28 July 2000. The Tribunal of Last Instance (Tribunal de Ultima Instância),
by judgement of 16 March 2001, affirmed the second instance court’s findings).
2.8
Counsel states that the same matter has not been submitted to any other international
procedure of investigation and settlement.
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The complaint
3.
Counsel claims multiple violations of article 14 concerning the alleged denial of a fair
hearing before a competent and impartial tribunal, the alleged violation of the presumption of
innocence, and the alleged violation of fundamental guarantees of the defence, including access
of counsel to the accused and proper representation of the accused during the trial.1
The State party’s observations and author’s comments thereon
4.1
In its submission of 29 June 2000, the State party refers to article 2 of Macao’s Statute,
pursuant to which Macao enjoyed autonomy and did not fall under the sovereignty of Portugal.
It argues that whereas the application of the Covenant was extended to Macao by the Portuguese
Parliament by virtue of resolution 41/92 of 17 December 1992, no such resolution was adopted
with respect to the Optional Protocol.
4.2
The State party also indicates that the Optional Protocol is not among the treaties listed in
the note addressed by the Portuguese Government in November 1999 to the United Nations
Secretary-General concerning those treaties for which the People’s Republic of China had agreed
to assume the responsibilities of succession.
4.3
The State party quotes the text of article 1 of the Optional Protocol, indicating that Macao
was not a State party to the Protocol. Accordingly, it requests the Committee to declare the
communication inadmissible.
4.4
In the alternative, the State party requests that the case be declared inadmissible because,
since Portugal is no longer responsible for Macao, there is no legitimate international procedure.
4.5
Moreover, the State party contends that domestic remedies have not been exhausted,
since the decision on the author’s appeal is still pending. It is not relevant that the decisions
concerning the petitions against the Chief Judge are final, since the exhaustion of domestic
remedies should be understood as applying to the entire procedure. Moreover, the decision on
appeal will no longer be the responsibility of Portugal, since it will be taken by a Court of the
Macao Special Administrative Region, which is under the jurisdiction of the People’s Republic
of China.
5.1
In his comments, dated 29 September 2000, the author argues that the Optional Protocol
is complementary to the Covenant and therefore its application in Macao should be deemed to
have been effected by resolution 41/92 of 17 December 1992.
5.2
Notwithstanding the transfer of administration to the People’s Republic of China
on 19/20 December 1999, it is clear that the events complained of occurred in the period when
Portugal was responsible for Macao and bound by the Optional Protocol.
5.3
With regard to the alleged non-exhaustion of domestic remedies, the author contends that
it is legitimate to sever the decisions concerning the impartiality of the judge from the decision
on the author’s guilt or innocence. It is stressed that the violations alleged were perpetrated by a
CCPR/C/73/D/925/2000/Rev.1
page 6
court under Portuguese jurisdiction and not by the courts under the jurisdiction of the People’s
Republic of China. Moreover, the pending appeal before the Second Instance Court was finally
decided on 28 July 2000.
5.4
The Second Instance Court examined the author’s allegations, inter alia, that the tribunal
was neither competent nor impartial, that the Chief Judge was biased against the defendants, that
the adversary principle and the principle of equality of arms were systematically violated
(judgement, section 1.5.A.) The judgement reaffirmed the competence of the Tribunal of First
Instance and found no merit in the author’s other allegations of procedural irregularities. The
author’s conviction on charges of membership in a secret association and usury was affirmed.
The sentence, however, was reduced to 13 years and 10 months. The Tribunal of the Last
Instance, by judgement of 16 March 2001, fully affirmed the judgement of the Tribunal of
Second Instance.
Issues and proceedings before the Committee
6.1
Before considering any claim 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.
6.2
With regard to the application of the Optional Protocol to Macao during the period under
Portuguese administration, until 19 December 1999, the Committee notes that the State party
adhered to the Optional Protocol with effect from 3 August 1983. It further notes that the
application of the Protocol cannot be based on article 10 of the Optional Protocol, since Macao
was not a constituent part of Portugal after adoption of the new Constitution in 1976. It is also
not possible to draw a positive conclusion from the Portuguese Parliament’s resolution 41/92
which formally extended the application of the Covenant to Macao, since the Covenant and the
Optional Protocol are distinct treaties.
6.3
The Committee, on the other hand, does not share the view that the fact that an analogous
declaration has not been made with regard to the Optional Protocol precludes the application of
the Protocol to this case. The Committee recalls the language of article 1 of the Optional
Protocol which stipulates in its first clause:
“A State party to the Covenant that becomes a party to the present Protocol recognizes
the competence of the Committee to receive and consider communications from
individuals subject to its jurisdiction who claim to be victims of a violation by that State
party of any of the rights set forth in the Covenant.”
All these elements are present in the case at hand. Portugal is a party to the Covenant, as well as
to the Optional Protocol, and as such it has recognized the Committee’s competence to receive
and consider communications from individuals “subject to its jurisdiction”. Individuals in
Macao were subject to Portugal’s jurisdiction until 19 December 1999. In the present case, the
State party exercised its jurisdiction by the courts over the author. As the intention of the
Optional Protocol is further implementation of Covenant rights, its non-applicability in any area
within the jurisdiction of a State party cannot be assumed without any express indication
CCPR/C/73/D/925/2000/Rev.1
page 7
(reservation/declaration) to that effect. No act of this nature exists. Therefore, the Committee
comes to the conclusion that it has the competence to receive and consider the author’s
communication insofar as it concerns alleged violations by Portugal of any of the rights set forth
in the Covenant.2
6.4
With regard to exhaustion of domestic remedies, article 2 of the Optional Protocol states:
“Subject to the provisions of article 1, individuals who claim that any of their rights
enumerated in the Covenant have been violated and who have exhausted all available
domestic remedies may submit a written communication to the Committee for
consideration.” (emphasis added)
The implications of this provision are clear: until such time as remedies available under the
domestic legal system have been exhausted an individual who claims that his or her rights under
the Covenant have been violated is not entitled to submit a communication to the Committee. It
is therefore incumbent on the Committee to reject as inadmissible a communication submitted
before this condition has been met. And indeed it has been the practice of the Committee not to
receive communications when it is abundantly clear that available domestic remedies have not
been exhausted. Thus, for example, in communications involving allegations of violations of
fair trial in criminal cases, the Committee does not receive and register communications when it
is clear that an appeal is still pending. The problem is that in many cases it is not self-evident
from the communication itself whether domestic remedies were available and if so, whether they
were exhausted by the author. In such cases the Committee has no choice but to register the
communication and to decide on admissibility after considering the submissions of both the
author and the State party on the issue of domestic remedies. When deciding whether to reject
such communications as inadmissible under article 5, paragraph 2 (b) of the Optional Protocol,
the Committee generally follows the practice of other international decision-making bodies and
examines whether domestic remedies have been exhausted at the time of considering the matter
(rather than at the time the communication was submitted). The rationale of this practice is that
rejecting a communication as inadmissible when domestic remedies have been exhausted at the
time of consideration would be pointless, as the author could merely submit a new
communication relating to the same alleged violation. It should be noted, however, that the
assumption underlying this practice is that the legal standing of the State party has not changed
between the date of submission and the date of consideration of the communication, and that
there would therefore be no legal impediments to submission of a new communication by the
author relating to the alleged violation. When this assumption is invalid, the practice becomes
incompatible with the requirements of the Optional Protocol.
6.5
In the present case both the author’s claims concerning the lack of competence of the
special Portuguese judge, as well as the other claims regarding alleged violations of article 14 of
the Covenant in the course of the author’s trial, were raised in the appeal to the Tribunal de
Segunda Instância in Macao. This appeal had not yet been heard at the time of the submission of
the communication. The judgements in this appeal and in a further appeal lodged with the
Tribunal of Last Instance, were rendered on 28 July 2000 and 16 March 2001 respectively, when
Macao was no longer administered by Portugal. It follows that domestic remedies had not been
exhausted when the communication was submitted and that the author was therefore not entitled,
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under article 2 of the Optional Protocol, to submit a communication. By the time the remedies
had been exhausted the author was no longer subject to the jurisdiction of Portugal and his
communication was inadmissible under article 1 of the Optional Protocol.
6.6
It should further be noted that the fact that the author’s appeals were heard after Portugal
no longer had jurisdiction over Macao in no way implies that these remedies ceased to be
domestic remedies which had to be exhausted before a communication could be submitted
against Portugal. While Macao became a special administrative region in the People’s Republic
of China after submission of the communication, its legal system remained intact, and the system
of criminal appeals remained unchanged. Thus there remained remedies that had to be pursued
under the domestic legal system, irrespective of the State which exercised control over the
territory.
6.7
In conclusion, while the Committee is of the opinion that in the period during which
Portugal exercised jurisdiction over Macao after it had acceded to the Optional Protocol,
individuals subject to its jurisdiction who claimed their rights under the Covenant had been
violated were entitled to submit communications against Portugal, it finds that the present
communication is inadmissible, under articles 2 and 5, paragraph 2 (b) of the Optional Protocol.
7.
The Human Rights Committee decides:
(a)
That the communication is inadmissible;
(b)
That this decision shall be communicated to the State party and to the author of
the communication.
[Adopted in English, French and Spanish, the English text being the original version.
Subsequently to be issued in Arabic, Chinese and Russian as part of the Committee’s annual
report to the General Assembly.]
Notes
1 These issues, including the question of the alleged breach of article 31.2 of the Decree-Law
No. 55/92/M (see above paragraph 2.3), were addressed in the Judgment of the Tribunal de
Segunda Instância of 28 July 2000 as well as in the judgement of the Tribunal of Last Instance of
16 March 2001.
2 Cf. also the general rule embodied in article 29 of the Vienna Convention on the Law of
Treaties.
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Individual opinion by Committee members, Messrs. Abdelfattah Amor and
Prafullachandra Natwarlal Bhagwati (partly dissenting)
Before considering any claim 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.
With regard to the application of the Optional Protocol to Macao during the period under
Portuguese administration, until 19 December 1999, the Committee notes that the State party
ratified the Covenant and became a party to it from 15 September 1978, but so far as the
Optional Protocol is concerned, it was not ratified until about five years later and it entered into
force on 3 August 1983. Obviously, the Covenant and the Optional Protocol are two distinct
treaties and the ratification of the former does not carry with it the ratification of the latter and
that is why the Optional Protocol had to be separately ratified as a distinct treaty by the State
party.
The first question that requires to be considered for determining the applicability of the
Optional Protocol to Macao up to 19 December 1999 is whether there is anything in the language
of the Optional Protocol to suggest that when the State party ratified the Optional Protocol, it
became applicable to Macao as a territory under the administration of the State party. Article 10
of the Optional Protocol obviously cannot be invoked since Macao was not a constituent part of
Portugal. Some reliance may be placed on article 29 of the Vienna Convention on the Law of
Treaties which stipulates that “Unless different intention appears from the Treaty, or is otherwise
established, a treaty is binding upon each party in respect of its entire territory.”
Now there are divergent views on whether the application of a treaty automatically
extends to dependent territories or whether the extension needs a specific legal act. We do not
think it would be a fruitful exercise to enter upon a discussion of these divergent views, since
jurists are divided sharply on this issue. In any event, it is, in our view, clear that since Macao
was at no material time a constituent part of Portugal, it could not be said to be a part of the
territory of Portugal and hence the Optional Protocol could not be said to be binding on Macao
by virtue of article 29 of the Vienna Convention on the Law of Treaties. The ratification of the
Optional Protocol by Portugal did not therefore have the effect of making it automatically
applicable to Macao.
It may also be pointed out that if, contrary to what I have held, article 29 of the Vienna
Convention on the Law of Treaties were applicable, it would equally be applicable in relation to
the Covenant and in that event the Covenant would have to be regarded as applicable right from
the time it was ratified by Portugal. But it is indisputable that the Covenant did not become
applicable to Macao from the moment of its ratification by Portugal. The Covenant was in fact
extended to Macao for the first time by a resolution passed by the Portuguese Parliament
on 17 December 1992. Till that time the Covenant was not applicable to Macao. It was by
virtue of the Parliamentary resolution dated 17 December 1992 that it became applicable to
Macao. The Parliamentary extension of the Covenant to Macao on 17 December 1992 also
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demonstrates that in any event, it was not the intention of Portugal, when it ratified the Covenant,
to make it applicable to Macao. The conclusion is therefore inevitable that the Covenant became
applicable to Macao for the first time on 17 December 1992.
Turning once again to the question of applicability of the Optional Protocol to Macao, I
have already pointed out that the Optional Protocol did not become applicable to Macao by
virtue of its ratification by Portugal. There is also an additional reason why the Optional
Protocol could not be said to have become applicable on its ratification by Portugal. If the
Covenant did not become applicable to Macao until 17 December 1992, how could the Optional
Protocol which merely provides the machinery for redressing violations of the Covenant rights,
become applicable to Macao at any earlier point of time? Since the Optional Protocol did not
become applicable to Macao as a consequence of its ratification by Portugal, it becomes
necessary to consider whether at any subsequent point of time, it was extended to Macao.
Now it is obvious that there was no explicit legal act by which the applicability of the
Optional Protocol was extended to Macao. The only argument which the State party could
advance in support of the applicability of the Optional Protocol to Macao was that the extension
of the Covenant to Macao on 17 December 1992 carried with it also the extension of the
Optional Protocol to Macao. But this argument is clearly unsustainable. In the first place, the
Covenant and the Optional Protocol are two distinct treaties. The former can be ratified without
ratification of the latter. The ratification of the Covenant does not therefore involve ratification
of the Optional Protocol. If the contrary argument of Portugal were valid, there would be no
necessity for a State party to the Covenant, separately to ratify the Optional Protocol, because the
ratification of the Covenant would carry with it ratification of the Optional Protocol. But it is
incontrovertible that the Optional Protocol does not become binding until it is ratified by the
State party. Here, in the present case, it is significant to note that though the Covenant was
extended to Macao on 17 December 1992 by a specific resolution passed by the Portuguese
Parliament, the extension did not include the Optional Protocol. Portugal specifically made one
treaty applicable to Macao but not the other. This clearly shows the intention of Portugal that,
while the Covenant should be applicable to Macao, the Optional Protocol should not be. This
also becomes abundantly clear from the fact that it was only the Covenant and not the Optional
Protocol which was mentioned in the note sent by Portugal to the Secretary-General setting out
the treaties for which China was going to be responsible. I have therefore no doubt that the
Optional Protocol was not applicable to Macao at any time and hence the communication must
be held to be inadmissible under article 2 of the Optional Protocol.
There was some argument debated in the Committee that in any event, the case would
fall within article 1 of the Optional Protocol and since the author was within the jurisdiction of
Portugal at the time of submission of the communication, the Committee would have jurisdiction
to deal with the communication. But this argument suffers from a twofold fallacy. In the first
place, it postulates the applicability of the Optional Protocol to Macao so as to enable the author
to invoke its article 1 for supporting the sustainability of the communication. But, as I have
pointed out above, the Optional Protocol was not applicable to Macao at any time and hence this
argument based on article 1 must fail. Secondly, in order to attract the applicability of article 1,
what is necessary is that the author who complains of violation of his Covenant rights must be
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subject to the jurisdiction of the State party not only when the Committee receives the
communication but also when the Committee considers the communication. The language of
article 1 speaks of “the competence of the Committee to receive and consider the
communication”. Here, in the present case, when the Committee is considering a
communication the author is no longer subject to the jurisdiction of Portugal, because China took
over the administration of Macao on 20 December 1999. Article 1 has therefore, in any event,
no application in the present case.
So far as the question of exhaustion of domestic remedies is concerned, article 5 (2) (b)
requires that the author of a communication must have exhausted all domestic remedies by the
time the Committee considers the communication. The Committee is precluded from
considering any communication unless the author has exhausted all domestic remedies.
Therefore, the point of time at which the question of exhaustion of domestic remedies is required
to be considered is when the Committee is considering the communication. It is common ground
that at the present time when the Committee is considering the author’s communication, the
author has exhausted all domestic remedies. The communication cannot therefore be held to be
inadmissible on the ground of non-exhaustion of domestic remedies under article 5 (2) (b) of the
Optional Protocol.
In the result, we hold that the communication is inadmissible.
(Signed) Abdelfattah Amor
(Signed) Prafullachandra Natwarlal Bhagwati
[Done in English, French and Spanish, the English text being the original version. Subsequently
to be translated into Arabic, Chinese and Russian as part of the Committee’s annual report to the
General Assembly.]
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Individual opinion by Committee member, Mr. Nisuke Ando
(partly dissenting)
In the present case I agree with the Committee’s conclusion that the communication is
inadmissible because the author was no longer subject to the jurisdiction of Portugal both when
his appeals were heard by the Court of Second Instance in May 2000 and when the Tribunal of
Last Instance rendered its judgement in March 2001. (See paragraphs 6.4, 6.5 and 2.7.)
However, I am unable to share the Committee’s view that non-applicability of the Optional
Protocol in any area within its jurisdiction of a State party cannot be assumed without an express
indication to that effect (para. 6.3). In my view this assumption of the Committee is not fully
convincing for the following reasons:
First of all, the State party clearly indicated that, whereas the application of the Covenant
was extended to Macao by a resolution of the Portuguese Parliament, no such resolution was
adopted with respect to the Optional Protocol (para. 4.2). Secondly, the Committee accepts the
State party’s statement that the Optional Protocol is not, whereas the Covenant is, among the
treaties listed in its note to the United Nations Secretary-General with respect to which the
Chinese Government has agreed to assume responsibilities of succession (para. 4.1). Thus,
thirdly, while the Committee accepts that the continued application of the Covenant requires
“express” indication of a State concerned (China in the present case), it seems to assume that no
such indication is required with respect to the extension of application of the Optional Protocol.
(Portugal in the present case.)
In regard to the third point, it must be admitted that, while the continued application of
the Covenant is an issue between two different States (China and Portugal), the extension of
application of the Optional Protocol to Macao is an issue within one and the same State (Portugal
alone). Nevertheless, the fact remains that, while the Covenant has become applicable to the
Macao Special Administrative Region by the “express” indication of China, the Optional
Protocol has not become applicable to the same region in the absence of “express” indication of
the same State. In this connection, it must be remembered that, according to the Committee’s
General Comment No. 26 entitled “Continuity of Obligations”, “The Human Rights Committee
has consistently taken the view … that once the people are accorded the protection of the rights
under the Covenant, such protection devolves with territory and continues to belong to them,
notwithstanding change in government of the State party, including dismemberment in more than
one State or State succession or any subsequent action of the State party designed to divest them
of the rights guaranteed by the Covenant”.1
Personally, I agree with the Committee’s view as a matter of policy statement, but I
cannot agree with it as a statement of a rule of customary international law. As far as State
practice with respect to the Covenant is concerned, only in the cases of the dismemberment of
the former Yugoslavia and that of Czechoslovakia, each of the newly born States in Central and
Eastern Europe except Kazakhstan (Kazakhstan has made no indication) indicated that it
“succeeds to” the Covenant. All the other seceding or separating States indicated that they
“accede to” the Covenant, which implies that they are not succeeding to the former States’
1 United Nations document No. A/53/40, annex VII, para. 40.
CCPR/C/73/D/925/2000/Rev.1
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Covenant obligations but are newly acceding to the Covenant obligations on their own. The
corresponding State practice with respect to the Optional Protocol makes it clear that only the
Czech Republic and Slovakia “expressly” succeeded to the Optional Protocol obligations.
Certainly the State practice shows that there is no “automatic” devolution of the Covenant
obligations, to say nothing of the Optional Protocol obligations, to any State. A State needs to
make an “express” indication as to whether or not it accepts obligations under the Covenant
and/or the Optional Protocol. Absent such an indication, it should not be assumed that the State
has accepted the obligations.
It may be recalled that during the consideration of the fourth periodic report of Portugal
on Macao, the Committee specifically posed the question: “What arrangements exist for the
application of the Optional Protocol in the Macao Special Administration Region?” The
delegation replied that the question of the Optional Protocol had not been addressed in its
negotiation with China (CCPR/C/SR.1794, para. 9). From this reply it is difficult to determine
whether or not the Optional Protocol, as distinguished from the Covenant, was considered as
applicable in Macao. However, in response to the author’s claims in the present case, Portugal
expressly indicates that no resolution was adopted by its Parliament to extend the application of
the Optional Protocol to Macao during its administration of the territory, suggesting that it has
never intended to apply the Optional Protocol there.
(Signed) Nisuke Ando
[Done in English, French and Spanish, the English text being the original version. Subsequently
to be translated into Arabic, Chinese and Russian as part of the Committee’s annual report to the
General Assembly.]
CCPR/C/73/D/925/2000/Rev.1
page 14
Individual opinion by Committee members, Messrs. Eckart Klein,
Rafael Rivas Posada and Maxwell Yalden (partly dissenting)
In our view the Committee should have decided that the communication was admissible.
We agree with the Committee’s finding that in the present case the Optional Protocol
establishing the competence of the Committee to receive and consider communications is
applicable to Macao.
However, we disagree with the finding that the author had not exhausted domestic
remedies. We base our dissent on two interrelated grounds.
First, we do not think that further “domestic” remedies were, in fact, available to the
author after the jurisdiction of Portugal over Macao had come to an end. It is true that by
agreement between the State party and the People’s Republic of China the system of criminal
appeals was to remain unchanged. But it is likewise true that after 19 December 1999, the courts
to which the author could have applied (and has done in fact) no longer came within the
jurisdiction of the State party against which this communication had been directed. The author
submitted his communication on 15 December 1999, only four days before Macao reverted to
Chinese administration. To take the view that the author should have exhausted further domestic
(i.e. Portuguese) remedies within this short period of time would be clearly unreasonable.
Therefore, even if the essential moment for deciding the question when domestic remedies are
exhausted were to be the time of submission of the communication and not that of its
consideration by the Committee (an issue on which we need not comment here), this requirement
would have been met due to the special circumstances of the present case.
Second, we believe that the Committee’s view suffers from a further defect. Requesting
the author X at the time of submission of his communication X to exhaust domestic remedies,
since otherwise the communication would be inadmissible, on the one hand, and taking the line
when he has done so that his communication is inadmissible because he is no longer subject to
the jurisdiction of Portugal, on the other, creates an unacceptable situation in which the author is
deprived of any effective protection which the Covenant and the Optional Protocol purport to
ensure.
For these reasons we are of the view that the Committee should have declared the
communication admissible.
(Signed) Eckart Klein
(Signed) Rafael Rivas Posada
(Signed) Maxwell Yalden
[Done in English, French and Spanish, the English text being the original version. Subsequently
to be translated into Arabic, Chinese and Russian as part of the Committee’s annual report to the
General Assembly.]
CCPR/C/73/D/925/2000/Rev.1
page 15
Individual opinion by Committee member, Mr. David Kretzmer
(partly concurring and possibly reserving his position)
Domestic remedies in this case had not been exhausted when the communication was
submitted. For the reasons set out in the Committee’s Views the communication is therefore
inadmissible even on the assumption that the Optional Protocol to alleged violations of the
Covenant carried out by the authorities in Macao before the transfer of jurisdiction to the
People’s Republic of China. I believe that in these circumstances it was unnecessary for the
Committee to decide whether the Optional Protocol did indeed apply to such alleged violations.
I reserve my opinion on this question.
(Signed) David Kretzmer
[Done in English, French and Spanish, the English text being the original version. Subsequently
to be translated into Arabic, Chinese and Russian as part of the Committee’s annual report to the
General Assembly.]
CCPR/C/73/D/925/2000/Rev.1
page 16
Individual opinion by Committee member, Mr. Martin Scheinin (dissenting)
It needs to be pointed out at the outset that although the majority of the Committee came
to the conclusion that the communication is inadmissible, there was no majority for any specific
reason for inadmissibility. The reasons given in the decision itself were formulated by a
minority of Committee members, representing the majority position among those who came to
inadmissibility as conclusion.
In my opinion the decision is to be seen as an anomaly in the Committee’s jurisprudence.
It is the established position of the Committee that article 5, paragraph 2 (b) is the clause in the
Optional Protocol that prescribes the requirement of exhaustion of domestic remedies as a
condition for admissibility. The reference to exhaustion of domestic remedies in article 2 as a
condition for the submission of an individual communication is to be understood as a general
reflection of this rule, not as a separate admissibility requirement. The requirement of
exhaustion of domestic remedies is subject to the discretion of the Committee (art. 5, para. 2
in fine). Also, it is a recoverable ground for inadmissibility (rule 92.2 of the Committee’s rules
of procedure). Consequently, it would be absurd to read into article 2 an additional requirement
that domestic remedies must be exhausted prior to the submission of a communication and to
declare a communication inadmissible in a case where domestic remedies were not yet exhausted
at the time of submission but have been exhausted by the time when the Committee has the
opportunity to make its decision on admissibility.
The specific circumstances of transfer of sovereignty over Macao do not change the
situation. If that change has any effect on the requirement of exhausting domestic remedies, it is
because the available remedies after the transfer might not be regarded as effective ones in
respect of Portugal. Consequently, domestic remedies would be exhausted in respect of Portugal
on the date of transfer of sovereignty, irrespective of the stage where the proceedings were on
that date.
(Signed) Martin Scheinin
[Done in English, French and Spanish, the English text being the original version. Subsequently
to be translated into Arabic, Chinese and Russian as part of the Committee’s annual report to the
General Assembly.]
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