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U.N. Doc. CCPR/C/79/D/910/2000
Communication No. 910/2000
27 October 2003
human rights committee
|20 October – 7 November 2003|
Ati Antoine Randolph
1.1 The author of the communication, Mr. Ati
Antoine Randolph, born 9 May 1942, has Togolese and French nationality. He
is in exile in France and alleges that the Togolese Republic has violated
his rights and those of his brother, Emile Randolph, under article 2,
paragraph 3 (a); articles 7, 9 and 10; article 12, paragraph 2; and article
14 of the International Covenant on Civil and Political Rights. The author
is represented by counsel.
1.2 The Togolese Republic became a party to the Covenant on 24 August 1984 and to the Optional Protocol on 30 June 1988.
FACTS AS SUBMITTED BY THE AUTHOR
2.1 Mr. Randolph first relates the circumstances surrounding the death of his brother, Counsellor to the Prime Minister of Togo, which occurred on 22 July 1998. He claims that the death resulted from the fact that the gendarmerie did not renew his brother's passport quickly enough so that he could be operated on in France, where he had already undergone two operations in 1997. His diplomatic passport having expired in 1997, the author's brother had requested its renewal; the author claims, however, that the gendarmerie confiscated the document. His brother later submitted another application, supported by his medical file. According to the author, no doctor in Togo had the necessary means to undertake such an operation. The gendarmerie issued a passport on 21 April 1998, but the applicant did not receive it until June 1998.
2.2 The author believes that the authorities violated his brother's freedom of movement, which was guaranteed under article 12, paragraph 2, of the International Covenant on Civil and Political Rights, by refusing to renew his passport quickly and by requiring the applicant's physical presence and his signature in a register in order to deliver the passport to him, thereby exacerbating his illness. The author believes that it was as a result of these events that his brother, in a very weakened condition and unable to fly on a regularly scheduled airline, died on 22 July 1998.
2.3 The author of the communication submits, secondly, facts relating to his arrest on 14 September 1985, together with about 15 others including his sister, and their 1986 trial for possession of subversive literature and insulting the head of State. During the period between his arrest and conviction, the author claims, he was tortured by electric current and other means and suffered degrading, humiliating and inhuman treatment. About 10 days after the arrest, the author was reportedly transferred to the detention centre in Lomé, and it was only then, according to the author, that he discovered he had been accused of insulting a public official, a charge that was later changed to insulting the head of State. The author notes in this respect that the head of State had not brought charges against anyone.
2.4 By a judgement on 30 July 1986, the text of which has not been submitted to the Committee, Mr. Randolph was sentenced to five years' imprisonment. The trial, he claims, was unfair because it violated the presumption of innocence and other provisions of the International Covenant on Civil and Political Rights. He has attached extracts from the 1986 report of Amnesty International in support of his claims.
2.5 The author claims that he did not have any effective remedy available to him in Togo. Later, he adds that he did not exhaust all domestic remedies because the Togolese justice system would not allow him to obtain, within a reasonable amount of time, fair compensation for injuries sustained. He claims that, even if he or his family had filed a complaint, it would have been in vain, for the State would not have conducted an investigation. He adds that filing a criminal suit against the gendarmerie would have exposed him and his whole family to danger. Moreover, when he was arrested and tortured, before being sentenced, he had no possibility of filing a complaint with the authorities, who were the very ones who were violating human rights, nor could he file suit against the court that had unfairly convicted him. Mr. Randolph believes that, in these conditions, no compensation for injury suffered would be obtainable through the Togolese justice system.
2.6 After the death of the author's brother in the conditions described above, no one lodged a complaint, according to the author, for the same reasons as he had given before.
2.7 Mr. Randolph believes that, since his release, the injuries caused by the violations of his fundamental rights persist because he has been forced into exile and to live far from his family and loved ones, and also because of his brother's death, which was due to the failure on the part of the Togolese Republic to respect his brother's freedom of movement.
3. The author invokes the violation of article 2, paragraph 3; articles 7, 9 and 10; article 12, paragraph 2; and article 14 of the Covenant. He requests fair compensation for the injuries suffered by him and his family as a result of the State's action, and an internationally monitored review of his trial.
THE STATE PARTY'S OBSERVATIONS
4.1 In its observations of 2 March 2000, the State party considers the substance of the communication without addressing the question of its admissibility. The State party rejects all the author's accusations, in particular those relating to torture, contending that during the trial the accused did not lodge any complaint of torture or ill-treatment. The State party cited the statements made following the trial by the author's counsel, Mr. Domenach, to the effect that the hearing had been a good one and that all parties, including Mr. Randolph, had been able to express their views on what had happened.
4.2 As for calling the trial unfair and alleging a violation of the presumption of innocence, the State party again cites an extract from a statement by Mr. Randolph's counsel, in which he declares that over the 10 months that he has been defending his clients in Togo, he has been able to do so in a satisfactory manner, with the assistance and encouragement of the authorities. He adds that the hearing was held in accordance with the rules of form and substance and in the framework of a free debate in conformity with international law.
4.3 With regard to the violation of freedom of movement, the State party contends that it cannot be reproached for having prevented the author's brother from leaving the country by holding up his diplomatic passport, since the authorities had issued him a new passport. As to the formalities for picking up his passport, it is considered normal to require the physical presence of the interested party, as well as his or her signature on the passport and in the register of receipts; this procedure is in the interest of passport-holders because it is intended to prevent documents from being delivered to a person other than the passport-holder.
4.4 The State party contends that no legal or administrative body has received a claim for compensation for injury suffered by Mr. Ati Randolph.
THE AUTHOR'S COMMENTS ON THE OBSERVATIONS OF THE STATE PARTY
5.1 In his comments of 22 August 2000, the author accuses Togo of having presented "a tissue of lies". He reaffirms the facts as already submitted and insists that he was detained in police custody from 14 to 25 September 1985, while the legally permissible length of such confinement is a maximum of 48 hours. During that period, the author was subjected to cruel, degrading and inhuman treatment, torture and death threats. In his view, the presumption of his innocence was not respected - he was removed from the civil service list, and he was called to appear before the head of State and of the Central Committee of the only political party, the one in power. His eyeglasses had been confiscated for three months and had been returned to him only after the intervention of Amnesty International. The author's vehicles had also been confiscated. He claims, in that regard, that one of the vehicles, which was returned to him upon his release, had been tampered with so that he could have died when trying to drive it. Lastly, he comments on various government officials in order to illustrate the undemocratic nature of the current regime, although this is not directly related to his communication.
5.2 From 25 September 1985 to 12 January 1987, the author was detained in the Lomé detention centre, where he was subjected to cruel, inhuman and degrading treatment and death threats. In a statement addressed to the Committee, the author's sister testifies that, in that connection, and under pressure from international humanitarian organizations, the regime was forced to have the prisoner examined by a doctor. Ms. Randolph claims that the lawyers and doctors chosen were loyal to the regime and did not acknowledge that the results - indicating there had been no torture - had been falsified.
5.3 The author's trial began only in July 1986. On 30 July 1986, the author was sentenced to five years in prison for insulting the head of State. On 12 January 1987, he was pardoned by the latter.
5.4 Mr. Randolph insists that he was tortured by electric shock on 15 September 1985 in the evening and on the following morning. He claims that he was then threatened with death on several occasions. He states that he told his lawyers about this, and that he lodged complaints of torture with the court on two occasions: once in October 1985, but his complaint had been diluted by replacing "torture" by "ill-treatment". The second time, in January 1986, he lodged his complaint in writing. In response to this action, the author claims, his right to a weekly family visit was suspended. The author also states that during the trial he had reported the torture and ill-treatment. This had been the reason, according to him, for the postponement of his trial from 16 to 30 July, supposedly for further information; he does not, however, offer any proof of these allegations.
5.5 The author also describes the conditions of his detention, for example, being forced to stay virtually naked in a mosquito-filled room, lying directly on the concrete, with the possibility of showering every two weeks at the start and spending only three minutes a day outside his cell, and having to shower in the prison courtyard under armed guard.
5.6 As for the trial, the author states that the President of the court - Ms. Nana - had close ties to the head of State. She had even participated in a demonstration demanding the execution of the author and the others charged in the case, and the confiscation of their property. Only the Association of African Jurists, represented by a friend of the head of State, had been authorized to attend the trial, while a representative of Amnesty International had been turned away at the airport.
5.7 The author maintains that no incriminating evidence or witnesses had been produced during the course of the trial. The case involved the distribution of leaflets to defame the head of State. Yet, according to the author, no leaflet was submitted in evidence and the head of State had not entered a defamation complaint.
5.8 The author claims that during the trial his attorneys had demonstrated that his rights had been violated. He states that he himself had shown the court the still-visible scars from having been burnt with electricity. But in his view the attorneys were under pressure and had therefore not pursued that argument.
5.9 Regarding his brother, the author contests the State party's observations, stating that his diplomatic passport had not been extended but that it had taken nine months to issue a new ordinary passport.
THE STATE PARTY'S FURTHER OBSERVATIONS ON THE AUTHOR'S COMMENTS
6.1 In its note of 27 November 2000, the State party contests the admissibility of the communication. It requests the Committee to declare the communication inadmissible for three reasons: failure to exhaust domestic remedies, use of insulting and defamatory terms and examination of the case by an international instance.
6.2 The State party contends that in Togo any person considering himself or herself to be the victim of human rights violations can have recourse to the courts, to the National Human Rights Commission and to the non-governmental institutions for the defence of human rights. In that connection, the State party states that the author did not submit an appeal to the courts, did not ask for a review of his trial and did not claim compensation for damage of any kind. As for the possible recourse to the National Human Rights Commission, the State party states that the author had not applied to it even though he acknowledged the Commission's importance in his communication.
6.3 The State party insists, without further elaboration, that the author used insulting and defamatory terms in framing his allegations.
6.4 Concerning examination of the case under another international procedure, the State party submits that the United Nations Commission on Human Rights, in its resolution 1993/75 of 10 March 1993, had decided to monitor the situation of human rights in Togo, which it did until 1996. The State party points out that the author's case was among those considered by the Commission on Human Rights during the period of monitoring.
THE AUTHOR'S FURTHER COMMENTS ON THE STATE PARTY'S OBSERVATIONS
7.1 The author submitted his comments on 13 January 2001. Once again criticizing and giving his opinion of various Togolese authorities, he contests the legality and legitimacy of the political regime in power. By way of evidence and in support of his communication, the author submits excerpts from various articles and books, without actually adding any new considerations in support of his previous allegations regarding human rights violations against himself personally or against members of his family.
7.2 He reiterates his comments of 22 August 2000 and makes further accusations against the political regime in office: corruption and denial of justice. He describes the current conditions for the issuance of passports by Togo, although this has no bearing on this communication.
7.3 Concerning the Government's argument of inadmissibility because of the use of insulting and defamatory terms, the author believes that the terms he used were often insufficient to describe "the whole horror in which the Togolese people has been trapped for almost 35 years". He adds that, if the Government still believes that the terms he used were insulting and defamatory, he stood "ready to defend them before any judicial authority, any court of law, and to furnish irrefutable proof and incriminating evidence, producing as supporting witness the Togolese people".
7.4 The author also cites "the denial of justice" as justification for his failure to exhaust domestic remedies. In that connection, the author expounds on the idea that General Eyadema's conception of justice was entirely and exclusively self-serving. The author refers to the "fireworks affair" and asks the head of State "to respond immediately" to questions regarding the discovery and ordering of the explosives and also to explain the failure to produce any incriminating evidence in that case.
7.5 The author gives his opinion of the presiding judge of the court that convicted him, Ms. Nana, as someone close to the Government, and of the first deputy prosecutor, who did not investigate allegations of torture, as well as of others in high positions.
7.6 Regarding the non-exhaustion of available remedies, the author contends that "any attempt to secure a remedy that presupposes an impartial judicial system is impossible so long as the State party has a dictatorship at the helm". Regarding the National Human Rights Commission, his view is that none of the applicants who had submitted complaints to it in 1985 had obtained satisfaction.
7.7 The author submits that the fact that the Commission on Human Rights had concluded its consideration of the situation of human rights in Togo did not preclude the Committee from considering his communication.
DECISION OF THE COMMITTEE ON ADMISSIBILITY
8.1 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.
8.2 At its seventy-first session in April 2001, the Committee considered the admissibility of the communication.
8.3 The Committee noted that the part of the communication concerning the author's arrest, torture and conviction refers to a period in which the State party had not yet acceded to the Optional Protocol to the International Covenant on Civil and Political Rights, i.e. prior to 30 June 1988. However, the Committee observed that the grievances arising from that part of the communication, although they referred to events that pre-dated the entry into force of the Optional Protocol for Togo, continued to have effects which could in themselves constitute violations of the Covenant after that date.
8.4 The Committee noted that the examination of the situation in Togo by the Commission on Human Rights could not be thought of as being analogous to the consideration of communications from individuals within the meaning of article 5, paragraph 2 (a), of the Optional Protocol. The Committee referred to its previous decisions, according to which the Commission on Human Rights was not a body of international investigation or settlement within the meaning of article 5, paragraph 2 (a), of the Optional Protocol to the International Covenant on Civil and Political Rights.
8.5 The Committee further noted that the State party contested the admissibility of the communication on the ground of non-exhaustion of domestic remedies, given that no remedy had been sought by the author in respect of alleged violations of rights under the Covenant. The Committee found that the author had not put forward any argument to justify the non-exhaustion of available domestic remedies in respect of his late brother. Consequently, the Committee decided that this part of the communication was inadmissible.
8.6 However, regarding the allegations about the author's own case (paragraphs 2.5, 5.6 and 5.8 above), the Committee considered that the State party had not responded satisfactorily to the author's contention that there was no effective remedy in domestic law with respect to the alleged violations of his rights as enshrined in the Covenant, and consequently it found the communication to be admissible on 5 April 2001.
OBSERVATIONS BY THE STATE PARTY
9.1 In its observations of 1 October 2001 and 2002, the State party endorses the Committee's decision on the inadmissibility of the part of the communication concerning the author's brother, but contests the admissibility of the remainder of the communication in respect of the author himself.
9.2 Referring to paragraph 2.5 of the decision on admissibility, the State party reiterates its submission that the author has failed to exhaust domestic remedies, stressing in particular the opportunities to seek a remedy through the Court of Appeal and, if need be, the Supreme Court. The State party notes that it fully shares the individual opinion of one member of the Committee [FN1] and requests the Committee to take this opinion into account when re-examining the communication.
FN1 See appendix.
9.3 With reference to paragraph 5.6 of the decision on admissibility, the State party says that the regime has always respected the principle of the independence of the judiciary and that the author's doubts about the President of the court are gratuitous and unfounded claims made with the sole purpose of defaming her. The State party reiterates that the author's case was tried fairly and openly, in complete independence and impartiality, as the author's own counsel has noted (so the State party claims).
9.4 In connection with paragraph 5.8 of the decision on admissibility, the State party again refers to its observations of 2 March 2000.
AUTHOR'S COMMENTS ON OBSERVATIONS BY THE STATE PARTY
10.1 In his comments of 3 April, 7 June and 14 July 2002, the author restates his arguments, especially that of the failure by the State party to respect human rights, institutions and legal instruments, and the de facto lack of independence of the judiciary in Togo.
RE-EXAMINATION OF THE DECISION ON ADMISSIBILITY AND CONSIDERATION OF THE MERITS
11.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, in accordance with the provisions of article 5, paragraph 1, of the Optional Protocol.
11.2 The Committee has taken note of the observations of the State party of 1 October 2001 and 2002 regarding the inadmissibility of the communication on the ground of failure to exhaust domestic remedies. It notes that the State party has adduced no new or additional elements concerning inadmissibility, other than the observations which it made earlier at the admissibility stage, which would prompt the Committee to re-examine its decision. The Committee therefore considers that it should not review its finding of admissibility of 5 April 2001.
11.3 The Committee passes immediately to consideration of the merits.
12. Noting the fact that the Optional Protocol entered into force for the State party on 30 June 1988, that is, subsequent to the release and exile of the author, the Committee recalls its admissibility decision according to which it would need to be decided on the merits whether the alleged violations of articles 7, 9, 10 and 14 continued, after the entry into force of the Optional Protocol, to have effects that of themselves constitute a violation of the Covenant. Although the author claims that he has been forced into exile and to live apart from his family and relatives, and although he has after the Committee's admissibility decision provided some additional arguments why he believes that he cannot return to Togo, the Committee is of the view that insofar as the author's submission could be understood to relate to such continuing effects of the original grievances that in themselves would amount to a violation of article 12 or other provisions of the Covenant, the author's claims have not been substantiated to such a level of specificity that would enable the Committee to establish a violation of the Covenant.
13. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee do not reveal any violation of the Covenant.
[Adopted in English, French and Spanish, the French 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.]
The texts of two individual opinions signed by Committee members Mr. Abdelfattah Amor amd Mr. Hipólito Solari-Yrigoyen are appended to the present document.
INDIVIDUAL OPINION OF MR. ABDELFATTAH AMOR WITH REGARD TO THE DECISION ON ADMISSIBILITY OF 5 APRIL 2001
While sharing the conclusion of the Committee regarding the inadmissibility of the part of the communication relating to the author's brother, I continue to have reservations about the admissibility of the rest of the communication. There are a number of legal reasons for this:
1. Article 5, paragraph 2 (b), of the Optional Protocol to the International Covenant on Civil and Political Rights states that: "The Committee shall not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged."
Point number one: the onus is on the Committee to satisfy itself that the individual has exhausted all domestic remedies. The Committee's role in the case is to ascertain rather than to assess. The author's allegations, unless they focus on an unreasonable delay in proceedings, insufficient explanations offered by the State party, or manifest inaccuracies or errors, are not such as to necessitate a change in the Committee's role.
Point number two: article 5, paragraph 2 (b), of the Optional Protocol is quite unambiguous and requires no interpretation. It is perfectly clear and restrictive. It is not necessary to go beyond the text to make sense of it, which would mean twisting it and changing its meaning and scope.
Point number three: the sole exception to the rule of exhaustion of domestic remedies concerns unreasonable delay in proceedings, which is clearly not applicable in the present instance.
2. It is undeniable that the sentencing of the author to five years' imprisonment in 1986 was never appealed, either before the author's pardon in January 1987 or at any time afterwards. In other words, from the standpoint of the criminal law, no remedy was ever explored, let alone applied.
3. From the standpoint of the civil law and an action to seek compensation, the author has never, either as a principal party or in any other capacity, gone to court to claim damages, with the result that his case has been referred to the Committee for the first time as an initial action.
4. The author could have referred the case to the Committee with effect from August 1988, the date on which the Optional Protocol came into force with respect to the State party. The fact that he has waited more than 11 years to take advantage of the new procedure available to him cannot fail to raise questions, including that of a possible abuse of the right of submission referred to in article 3 of the Optional Protocol.
5. The Committee lacks accurate, consistent and systematic evidence that would enable it to corroborate the author's allegations about the State party's judicial system as a whole, either as regards its criminal or its civil side. By basing its position on the general absence of effective remedies, as claimed by the author, the Committee has made a decision which, legally speaking, is questionable and could even be contested.
6. It is to be feared that this decision will constitute a vexatious precedent, in the sense that it could be taken to condone a practice that lies outside the scope of article 5, paragraph 2 (b), of the Optional Protocol.
To sum up, I am of the view that, considering the circumstances described in the communication, the author's doubts about the effectiveness of the domestic remedies do not absolve him from exhausting them. The Committee should have concluded that the provision contained in article 5, paragraph 2 (a), of the Optional Protocol had not been satisfied and that the communication was inadmissible.
(Signed): Abdelfattah Amor
[Done in English, French and Spanish, the French text being the original version.]
INDIVIDUAL OPINION BY COMMITTEE MEMBER HIPOLITO SOLARI-YRIGOYEN (DISSENTING)
I disagree with the present communication on the grounds set forth below.
12. The Committee notes the fact that the Optional Protocol entered into force for the State party on 30 June 1988, that is, subsequent to the release and exile of the author. At the same time the Committee recalls its admissibility decision according to which it would need to be decided on the merits whether the alleged violations of articles 7, 9, 10 and 14 continued, after the entry into force of the Optional Protocol, to have effects that of themselves constitute a violation of the Covenant. In this regard, the author says that he has been forced into exile and to live apart from his family and relatives. In the view of the Committee, this claim should be understood as referring to the alleged violations of the author's rights in 1985-1987, which relate to such continuing effects of the original grievances that in themselves would amount to a violation of article 12 and other related provisions of the Covenant which permanently prevent his safe return to Togo.
12. The Committee observes that in its first presentation, on 2 March 2000, the State party denied that the author had been forced into exile, but that subsequently, after his detailed and specific comments made on 22 August 2000, it has not provided any explanation or made any statement which would clarify the matter, in accordance with its obligations under article 4.2 of the Optional Protocol. By means of a simple statement it could have rebutted the author's claim that he is unable to return safely to Togo and offered assurances regarding his return, but it did not do so. It should be borne in mind that only the State party could offer such guarantees to put an end to the ongoing effects which underlie the author's exile by arbitrarily depriving him of his right to return to his own country. In its presentations made on 27 November 2000 and 1 October 2001 and 2002, the State party confined itself to rejecting the admissibility of the complaint as far as the author is concerned. It should be borne in mind that the State has supplied no new elements which would indicate that the continuing effects of the events which occurred before 30 June 1988 have ceased.
12.2 It is necessary to ask whether the time which elapsed between the date when the Optional Protocol entered into force for the State party and the date when the complaint was submitted might undermine or nullify the argument relating to continuing effects which mean that the author's exile is involuntary. The answer is no, since exiles have no time limits as long as the circumstances which provoked them persist, which is the case with the State party. In many cases these circumstances have persisted longer than the normal human life span. Moreover, it cannot be forgotten that forced exile imposes a punishment on the victim with the aggravating factor that no judge has provided the accused with all the guarantees of due process before imposing the punishment. The punishment of exile, in short, is an administrative punishment. It is in addition a manifestly cruel one, as society has considered since the remotest times because of the effects on the victim, his family and his emotional and other ties when he is forcibly uprooted.
12.3 Article 12 of the Covenant prohibits forced exile, stating that no one shall be arbitrarily deprived of the right to enter his own country. In General Comment No. 27, the Committee stated that the reference to the concept of arbitrariness covers all State action, legislative, administrative and judicial. Moreover, the possibility that the author may have dual nationality is of no importance, since, as also mentioned in the General Comment, "the scope of 'his own country' is broader than that of 'his own nationality'. Thus the persons entitled to exercise this right can be identified only by interpreting the meaning of the phrase 'his own country'", which gives recognition to a person's special links with that country.
13. The Human Rights Committee is of the view that the original grievances suffered by the author in Togo in 1985-1987 have a continuing effect in that they prevent him from returning in safety to his own country. Consequently, there has been a violation of article 12, paragraph 4, of the Covenant, read in conjunction with articles 7, 9, 10 and 14.
14. In accordance with article 2, paragraph 3 (a), of the Covenant, the Committee considers that the author is entitled to an effective remedy.
15. Bearing in mind that, by becoming a party to the Optional Protocol, the State 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 or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.
(Signed): Hipólito Solari-Yrigoyen
4 December 2003
[Adopted in English, French and Spanish, the Spanish 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.]