26 January 1978

 

Communication No. 1/1976

 
     

human rights committee

  Third Session  
  16 January 3 February 1978  
     
     

a.

 

v.

s.

     
     
 

DECISION

 
     
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BEFORE: CHAIRMAN: Mr. Andreas v. Mavrommatis (Cyprus)
VICE-CHAIRMEN: Mr. Luben G. Koulishev (Bulgaria), Mr. Rajsoomer Lallah (Mauritius), Mr. Torkel Opsahl (Norway)
ACTING RAPPORTEUR: Mr. Julio Prado Vallejo (Ecuador)
MEMBERS: Mr. Mohamed Ben-Fadhel (Tunisia), Mr. Ole Mogens Espersen (Denmark), Sir Vincent Evans (United Kingdom), Mr. Manouchehr Ganji (Iran), Mr. Bernhard Graefrath (German Democratic Republic), Mr. Vladimir Hanga (Romania), Mr. Haissam Kelani (Syrian Arab Republic), Mr. Fernando Mora Rojas (Costa Rica), Mr. Anatoly Petrovich Movchan (Soviet Union), Mr. Fulgence Seminega (Rwanda), Mr. Walter Surma Tarnopolsky (Canada), Mr. Christian Tomuschat (Federal Republic of Germany).

Mr. Diego Uribe Vargas (Colombia) was unable to attend the third session.
   
PermaLink: http://www.worldcourts.com/hrc/eng/decisions/1978.01.26_A_v_S.htm
   
Citation: A. v. S. Comm. 1/1976, U.N. Doc. CCPR/C/OP/1, at 17 (HRC 1978)
Publications: Office of the U.N. High Comm'r for Human Rights, Human Rights Committee: Selected Decisions under the Optional Protocol, Vol. I, at 17, U.N. Doc. CCPR/C/OP/1, U.N. Sales No. E.84.XIV.2 (1985)
 
     
 
 
     
 

Articles of Optional Protocol: 1, 2 and 5 (2) (a) and (b)

 

This is a communication submitted by 18 signatories on behalf of 1,194 alleged victims, including 14 of the signatories, containing a general description of alleged violations of the International Covenant on Civil and Political Rights in S during the past few years, together with a brief description of the violations in respect of each of the alleged victims.

 

The Committee has studied this communication in order to determine the extent of its admissibility under the Optional Protocol. In general the Committee observes that the communication is primarily a complaint about the situation in S during the past few years. The Protocol was not intended to deal with situations as such, but with individual complaints.

 

The first question which arises is the standing of the authors of the communication to act on behalf of those alleged victims who are not signatories. The authors have explained that these persons are in S or elsewhere where they are not "at liberty" to act for themselves. The Committee notes however that its competence under the Protocol is to receive communications "from individuals ... who claim to be victims of a violation". There are of course circumstances in which one individual must be regarded as having the necessary standing to act on behalf of another. But with regard to the present communication the Committee cannot accept on the information before it that there is a sufficient link to enable the signatories of the communication to act on behalf of the alleged victims who are not signatories to the communication. The Protocol grants to all the individuals concerned the right to submit communications, but does not, on the other hand, allow for an actio popularis.

 

Another factor which the Committee must take into account in considering the admissibility of a communication is that, as a rule, the Committee can only consider an alleged violation of human rights occurring after the date of the entry into force of the Covenant and the Protocol for the State party concerned, unless the alleged violation is one which, although occurring before that date, continues or has effects which themselves constitute violations after that date. The relevant date for S is 23 March 1976. The Committee finds that on the basis of the facts before it the communication is inadmissible on this ground in regard to the violations alleged in respect of the following 11 of the authors of the communication: A.

 

With regard to the alleged violations in respect of B, C and D, the State party submits that the Human Rights Committee cannot consider the communication as these cases have already been submitted to the Inter-American Commission on Human Rights. The Human Rights Committee has ascertained that with regard to B and C [a] case ... was submitted to the Inter-American Commission on 8 February 1976, and with regard to D [two] cases ...were submitted to the inter-American Commission on 8 February 1976 and in October 1976 respectively. These cases have been declared admissible by the Inter-American Commission under the special procedure governed by articles 53 to 57 of its Regulations and the Human Rights Committee understands that they are still being examined under that procedure. Since the cases concerning B and C were submitted to the Inter-American Commission on Human Rights before 23 March 1976, the date on which the Covenant and the Optional Protocol entered into force for S, the Committee concludes that they do not concern the same matter which the Committee is competent to consider. It remains for the Human Rights Committee to ascertain in regard to the cases of D whether they concern the same matter as that submitted to the Human Rights Committee.

 

With regard to the alleged violations in respect of B and C the State party submits that the Human Rights Committee cannot consider the communication as these cases have already been submitted to the United Nations. The Committee finds however that the United Nations has no procedure of international investigation or settlement, as referred to in article 5 (2) (a) of the Protocol, relevant to these cases. In particular, the procedure under resolution 1503 (XLVIII) of 27 May 1970, adopted by the Economic and Social Council of the United Nations, is concerned with the examination of situations which reveal "a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms". In the view of the Committee, this procedure is not concerned with the examination of the same matter, within the meaning of article 5 (2) (a) of the Protocol, as a claim by an individual under the Protocol.

 

With regard to the alleged violation in respect of D, the State party submits that the Human Rights Committee cannot consider the communication, as this case has already been submitted to the United Nations Educational, Scientific and Cultural Organization (UNESCO). The Committee finds however that UNESCO has at present no procedure of international investigation or settlement, as referred to in article 5 (2) (a) of the Protocol, relevant to this case.

 

The State party further submits that in none of the accusations is there any mention of the fact that the individuals in question have ever had recourse to, let alone exhausted, domestic legal remedies or, if such a mention is made, it is made in a manner designed to mislead the members of the Committee. The State party has not however specified the remedies which it claims are or were available to the alleged victims and which they should have exhausted. The authors of the communication on their part deny the existence of effective remedies to which recourse should have been made. In the absence of more specific information concerning the domestic remedies said to be available to the alleged victims, B, C and D, and the effectiveness of those remedies as enforced by the competent authorities in S, the Committee is unable to accept that there are effective domestic remedies which the alleged victims have failed to exhaust.

The Human Rights Committee therefore decides:

 

1.         That the authors of the communication have not established that they have the necessary standing to act on behalf of the alleged victims who are not signatories of the communication and consequently the communication is inadmissible in so far as these alleged victims are concerned;

 

2.         That the claims presented in the communication in respect of ... eleven [of the] authors of the communication relate to events prior to 23 March 1976, the date of the entry into force of the Covenant and the Optional Protocol for S and consequently the communication is inadmissible in so far as these alleged victims are concerned;

 

3.         That before deciding finally on the admissibility of the communication in respect of B, C and D,

 

(a)        The authors be requested:

 

(i)        To furnish further detailed information with regard to the claim in respect of B, including information as to when he ceased to be detained in prison in S,

 

(ii)       To furnish further detailed information with regard to the claims in respect of C and D;

 

(b)       The authors be informed:

 

(i)        That the Committee understands that [two] cases concerning D... ( .... 8 February 1976, and .... October 1976) have been submitted to and declared admissible by the Inter-American Commission on Human Rights under the special procedure governed by articles 53 to 57 of its Regulations,

(ii)       That the Committee is precluded by article 5 (2) (a) of the Optional Protocol from considering a communication if the same matter is being examined under another procedure of international investigation or settlement. If the authors maintain that the matter which they have submitted to the Human Rights Committee in all or any of these cases is not the same matter which is under consideration by the Inter-American Commission on Human Rights, they should inform the Committee of their grounds for so maintaining and furnish the Committee with any other information in their possession relating to the submission of the cases to and their examination by the Inter-American Commission on Human Rights. In the absence of any such further information pertinent to this question, the Committee may have to conclude that they concern the same matter;

 

(c)        The authors be informed that their reply should reach the Human Rights Committee in care of the Division of Human Rights, United Nations Office at Geneva, within six weeks of the date of the letter addressed to them;

 

4.         That the Secretary-General transmit any reply received from the authors to the State party as soon as possible to enable the State party to comment thereon if it so wishes;

 

5.         That at the same time the State party be informed that, in the absence of more specific information concerning the domestic remedies said to be available to the alleged victims, B, C and D, and the effectiveness of those remedies as enforced by the competent authorities in S, the Committee is unable to accept that these alleged victims have failed to exhaust such remedies. The communication will therefore not be considered inadmissible in so far as exhaustion of domestic remedies is concerned, unless the State party gives details of the remedies which it submits have been available to each of the alleged victims in the circumstances of his case, together with evidence that there would be a reasonable prospect that such remedies would be effective;

 

6.         That the State party be informed that any such comments and information should reach the Human Rights Committee in care of the Division of Human Rights, United Nations Office at Geneva, within six weeks of the date of the request;

 

7.         That the text of this decision be communicated to the State party and the authors.

 
     

 

 

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