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The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,
Meeting on 23 July 2008,
Adopts the following:
DECISION ON ADMISSIBILITY
1. The author of the communication is Mr. Gordon Brown, a British citizen.
He claims to be a victim of violations by Namibia of his rights under
article 2, paragraphs 1 and 3; article 14, paragraphs 1, 2, and 3 (a), (b),
(d), and (e); and article 17, paragraph 1, of the Covenant.
1.2 On 27 March 2008, the Special Rapporteur on New Communications, acting
on behalf of the Committee decided to examine first the admissibility of the
communication.
THE FACTS AS PRESENTED BY THE AUTHOR
2.1 The author provides details of his work in the field of diamond mining
from 1968; his experiences in Namibia, which included testimony he gave in
1982 before a Government judicial commission on corruption and malpractices,
for which he claims to have lost his job with the diamond company Anglo-De
Beers; his subsequent move to South Africa where he was charged with but
acquitted of illicit diamond mining in 1991, and his return to Namibia in
1993. Throughout this period he claims to have been persecuted by both the
Namibian and South African State authorities, in particular, due to his
testimony before the judicial commission as well as his attempts to
introduce more productive and fairer employment conditions in the diamond
mining industry.
2.2 On 10 March 1994, the High Court of Namibia found the author and a
co-accused guilty of illicit purchase of unpolished diamonds (IBD), and of
unlawful possession of unpolished diamonds, and sentenced them to 5 years'
of imprisonment (two and a half of which were suspended) . The author claims
that his arrest and prosecution on wrongful and unlawful charges, including
attempted extortion and attempting to defeat or obstruct the course of
justice, were brought against him by the Namibian authorities with malicious
intent. He alleges having been charged pursuant to an entrapment operation,
and claims that the individuals who participated in the operation committed
perjury. Although, the author alleges, it is standard practice to
record/video tape arrests during entrapment operations, the police stated in
court that it was unclear whether such recordings were made. The police
informer, who owned the house where the author was arrested, initially
testified that recordings had been made, but when he arrived in court to
testify to this effect, he was "chased away" by a senior police official.
2.3 The author submits that he was unable to choose counsel, his initial
(court-appointed) lawyer withdrew at the last moment without any plausible
explanation, and a new lawyer was appointed at "the last minute", as a
result of which the author was denied adequate time and facilities to brief
him and to prepare his defence properly. In addition, he submits that he was
denied access to basic information. Key witness statements were withheld
from him, he was refused access to the contents of the police "docket file",
which would have allowed him to understand the evidence upon which he was
arrested.
2.4 During the trial, he claims that his lawyer was constantly challenged by
the judge and was treated differently by him than the prosecution. The
author claims that the failure, in his case, to respect the principle of
equality of arms, fair representation, and access to evidence and witness
statements is particularly serious, given that the Namibian judicial system
does not provide for a jury trial. In this regard, the author claims that a
witness for the defence was chased away by a police officer shortly before
his scheduled appearance. According to the author, the prosecution had only
one witness who provided an uncorroborated testimony but was believed by the
judge. Since then the author claims that this key witness has withdrawn his
testimony and confirmed under oath that he and other prosecution witnesses
were under instructions to lie in court. The author claims that the trial
judge applied the principle of "police docket privilege" or State privilege"
and left it to the prosecution to decide what, if any, further particulars
should be made available to the defence, thus shifting the burden of proof
on the accused in violation of his presumption of innocence. In addition,
such privilege unfairly advantaged the State party by allowing it to
monopolise all the important information, witness statements and identities
contained in the police docket.
2.5 According to the author, the presiding trial judge was not impartial. He
failed to consider a possible conflict of interest on the part of the
prosecuting attorney, whose wife, during the author's trial, had been
arrested and charged with illicit diamond buying. He failed to identify
material inconsistencies or contradictions in the author's own evidence, and
ignored the fact that the author's testimony was in fact corroborated and
that State witnesses contradicted themselves.
2.6 The author was detained at Windhoek Central Prison for an unspecified
period of time. According to him, the prison's capacity was for 25
prisoners, but in fact it housed 50. The prisoners slept on the floor with
only a thin blanket for cover in winter. The prison disposed of only one
shower, the food was poor and consisted mainly of porridge. There was little
exercise, education, or entertainment. On 26 April 1994, the author was
released on bail, pending the examination of his appeal against sentence and
decided to investigate "what was really going on" in the Diamond and Gold
Police Department Branch. He claims to have discovered that certain
officers, as well as the prosecutor's wife were involved inter alia in the
illicit purchase of diamonds. He further suggests that he has information
compromising the Namibian prosecutorgeneral and that the chief of the
Diamond and Gold Branch of the Police was also a "problematic person". He
claims to have reported his findings to the Namibian Prime Minister, to the
chief of the police, Minister of Justice, and to the President, and received
promises that his case would be investigated.
2.7 In September 1994, realising that he would find no justice in his appeal
against his conviction, as he believes the Namibian judicial system to be
lacking impartiality and "fearing for his life", he left for South Africa.
In this regard, he alleges that he was advised by two wellinformed sources
to leave the country. Since his arrival in South Africa, he has been trying
to clear his name. He requested the police to inquire into the involvement
of the police and De Beers' company officials in perverting the course of
justice in his case, but received no reply.
THE COMPLAINT
3.1 The author claims that he is a victim of violations by Namibia of his
rights under article 2, paragraphs 1 and 3; article 14, paragraphs 1, 2, and
3 (a), (b), (d), and (e); and article 17, paragraph 1, of the Covenant.
3.2 On exhaustion of domestic remedies, the author submits that he had
complained to the chief of the Namibian police, asking for a proper
investigation, and to the prosecutor's office, for further particulars about
the charges against him. At the beginning of his trial, he vainly notified
the judge that he and his new lawyer had not had the necessary time to
prepare their defence; he requested the Deputy Commissioner of the Namibian
police criminal investigation department to investigate his claims; he had
addressed written and oral requests to the Namibian President, Prime
Minister, and Minister of Justice; he complained to several individuals,
NGOs, lawyers, and other institutions, as well as to politicians and
religious leaders in various countries, and to the South African Truth and
Reconciliation Commission. According to the author, the very fact that the
State party was perverting and, he claims, continues to prevent him from
having access to vital evidence and other documents in his criminal case
file, demonstrates that he could not obtain an effective remedy through the
State party and thus there are no "effective" remedies available. He also
refers to the conduct of his trial itself, the failure of government
officials to investigate evidence of criminal behaviour and serious
irregularities in the Namibian justice system and outcome of the inquest
into the death of a lawyer and political activist with whom the author is
alleged to have had some contact.
3.3 Regarding the question of delay, ratione temporis, the author
acknowledges that both the Covenant and the Optional Protocol entered into
force for Namibia on 28 February 1995, and that the events he is complaining
about occurred prior to the entry into force of both of these treaties. He
argues that an exception to the ratione temporis rule applies if the events
complained of have continuing effects that violate the Covenant. In his
case, the continuing effects arise from the fact that he was wrongly
sentenced following an unfair trial, which amounted to a miscarriage of
justice. His criminal record has affected his personal and business life, as
his business ventures have ended, he has had many job applications rejected
and has had and continues to suffer from financial difficulties. He also
argues that new evidence on his innocence, namely a declaration under oath
by the principal witness against him to the effect that his testimony was a
perjury, was obtained after the entry into force of the Optional Protocol.
He claims that he sent this affidavit to the executive, legislature and
judiciary but never received a response.
THE STATE PARTY'S SUBMISSION ON ADMISSIBILITY AND THE AUTHORS COMMENTS
THEREON
4.1 On 25 March 2008, the State party contested the admissibility of the
communication. As to the facts, it submits that the author was arrested and
prosecuted in full compliance with due process of law. He was granted bail
pending his appeal. Following his release, he absconded from the
jurisdiction of the State party and since then has failed to appear in court
and failed to complete his sentence. Because he absconded, the author's bail
was cancelled and his bail money was forfeited to the State. He has since
become a fugitive in Namibia and an arrest warrant was issued against him.
4.2 The State party submits that the communication is inadmissible for
failure to exhaust domestic remedies, as the author's appeal remains pending
in the State party. In addition, the author could have instituted legal
proceedings through the State party's courts to enforce any alleged
violation of his rights, as provided for under articles 5, 7, 8, 12 and 18
of the Constitution. He could also have filed a complaint to the Ombudsman
who is mandated to investigate complaints concerning, inter alia, alleged or
apparent instances of violations of fundamental human rights and freedoms,
as well as abuse of power or corruption by State officials. The State party
also submits that the author presented voluminous documents, but that his
claims are vague and there is no causal link between the documents and the
claims made.
5. On 26 May 2008, the author responded to the State party's comments and
reiterated his claims and arguments previously made. He complains generally
about the lack of a separation of powers in the State party, the justice
system, and the relationship between the government and De Beers diamond
mining company. He claims that the false conviction against him removed him
as a threat to what he refers to the "monopolistic mismanagement" of the
State party's diamond industry by De Beers. He argues that all of the
documents provided by him have a direct bearing on his case and demonstrate
evidence of "repeated human rights violations" against him. As to the State
party's arguments on non-exhaustion, the author submits that without access
to witness statements and other material evidence held by the State party
these remedies were not available to him. He also reiterates that they would
not have been effective given the "dysfunctional" judicial system in the
State party. In his view, the abuse of due process has been such that his
case must be heard by an independent party.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its Rules of Procedure,
decide whether or not it is admissible under the Optional Protocol.
6.2 The Committee notes that the author left the State party in September
1994, and that he did not submit his communication to the Committee until 12
September 2007, that is 13 years later. While acknowledging that there are
no fixed time limits for submission of communications under the Optional
Protocol, the Committee recalls its jurisprudence [FN1] that it is entitled
to expect a reasonable explanation justifying such a delay. In the present
case, no convincing explanation has been provided. In the absence of an
explanation, the Committee considers that submitting the communication after
such a long delay amounts to an abuse of the right of submission, and finds
the communication inadmissible under article 3 of the Optional Protocol.
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[FN1] Communication No. 1434/2005, Claude Fillacier v. France, Decision of
27 March 2006.
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7. The Committee therefore decides:
(a) that the communication is inadmissible under article 3 of the Optional
Protocol;
(b) that this decision shall be communicated to the author and to the State
party.
[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.]
APPENDIX
INDIVIDUAL OPINION SIGNED BY COMMITTEE MEMBERS MR. MICHAEL O'FLAHERTY AND
MR. PRAFULLACHANDRA NATWARLAL BHAGWATI (DISSENTING)
1. We consider that this communication does not constitute an abuse of the
right of petition, that the author has taken all reasonable steps to exhaust
local remedies and that it should be declared admissible.
2. We observe that the author left the State party in September 1994, and
that he did not submit his communication to the Committee until 12 September
2007, that is 13 years later. While acknowledging the lengthy delay prior to
submission, we recall that there are no fixed time limits for submission of
communications under the Optional Protocol and notes that the State party
has raised no arguments on abuse of the right of petition subsequent to
which the author could have provided an explanation justifying the delay.
3. We note the author's claim that the available domestic remedies in the
State party were ineffective and sets out numerous ways by which he
attempted to seek redress for the alleged violation of his rights, including
making complaints to the police and the public prosecutor. We observe that
the State party does not dispute the efforts made by the author but argues,
inter alia, that he could have made a complaint to the Ombudsman. We recall
the jurisprudence of the Committee that complaints to the Ombudsman, which
have only recommendatory rather than binding effect, and thus may be
disregarded by the Executive would not amount to an effective remedy within
the meaning of the Optional Protocol. FN2 We note that although the author
absconded, thereby failing to pursue an appeal to the Supreme Court, he had
been advised by two well-informed sources that his life was in danger and
was of the belief that the State party's authorities would not ensure his
security of person. The State party has put forward no arguments to the
effect that his fear was either unreasonable or irrational. We consider
furthermore that given that the effectiveness of the domestic remedies are
intimately connected with the author's claims, in particular those relating
to article 14, these issues should be considered together in the context of
a consideration on the merits.
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[FN2] Communication no. 900/1999, C. v Australia, Views adopted on 28
October 2002.
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[signed] Mr. Michael O'Flaherty
[signed] Mr. Prafullachandra Natwarlal Bhagwati
[Done 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.]
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