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The Committee
against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 9 May 1997,
Adopts the following decision:
Decision on Admissibility
1. The communication is presented by counsel on behalf of Mr. Cyril Le Gayic
and 12 other individuals, French citizens, residing in Papeete, Tahiti. They
claim to be victims of violations by France of articles 16, 10, 11, 12 and
13 of the Convention against Torture.
The Facts as Presented by the Authors
2.1 Following the resumption of nuclear tests in the Pacific by France,
riots took place in Tahiti on 6 September 1995. The union A TI'A I MUA,
which had called for a strike that day, was held responsible for the riots
by the authorities. On 9 September 1995, the members of the Executive of the
union were meeting at the organization's office in Papeete. Around 1 p.m.,
when the participants were preparing for a press conference to be held at 3
p.m., mobile guards in battledress invaded the premises. They ordered the
unionists to line up against the wall, legs apart and hands behind their
heads. The unionists complied without resistance, but were bludgeoned by the
police nevertheless. Then they were handcuffed two by two, led out of the
building, thrown in a van and transported to the police station in the
Avenue Bruat.
2.2 Once there, they were handcuffed individually and ordered to kneel in
the parking lot, with the sun full in their faces. Those who had difficulty
in kneeling were beaten with bludgeons or kicked. About 45 minutes later
they were brought to the barracks and detained. They were not given any food
or drink and were prevented from sleeping. They remained handcuffed and
supervised, even when going to the toilet. No medical assistance was given.
Some of them were released in the night of 9 September, without being
charged. Others were charged and some of them were placed in preventive
detention.
2.3 Mr. Cyril Le Gayic, born on 27 September 1953, General Secretary of the
Conf�d�ration des syndicats ind�pendants de Polyn�sie, joined the meeting of
unionists at 12.55 p.m. The author attaches a medical certificate from a
doctor whom he went to see after his release.
2.4 Mr. Jean-Michel Garrigues, born on 29 September 1961, states that he was
threatened by one of the mobile guards with a firearm and hit with a
bludgeon against the left temple and that his shirt was torn and his head
smacked against the wall with such force that one of his teeth fell out. He
was constantly beaten although he was following orders given by the
policemen. He was also given electric shocks with a sort of electric prod,
and the marks of the handcuffs, put on tightly, took 10 days to heal. He
submits that, after being on the parking lot for about 15 minutes, he
started to vomit. Brought to the barracks, he was interrogated by a police
officer in the afternoon. He spent the night in the barracks, where the
guards prevented him from sleeping. He was not given anything to eat or
drink. The next morning, a guard came to spray the detainees with
insecticide. Asking to go to the toilet, Garrigues was shown one full of
excrement, the door was left open and the guard stayed with him. He was not
allowed to wash his hands afterwards. In the beginning of the afternoon he
was brought to the Palais de Justice, where the ill-treatment ended.
2.5 Mr. Tu Yan, born on 1 December 1955, states that when, following orders,
he lined up facing the wall, he was beaten with a bludgeon on his back and
right leg and later also on the right arm. During the ride in the van, he
was smothered by the weight of nine bodies on top of him. When brought to
the barracks, he says that he did not suffer further ill-treatment, but he
was refused anything to drink. He was released at 8 p.m. that same evening.
2.6 Mr. Bruno Sandras, born on 4 August 1961, states that he was threatened
with a pistol against his temple and that he was flat on the floor of the
van with others on top of him.
2.7 Mr. Eug�ne Sommers, born on 25 August 1958, states that he was thrown
into the van head first and others were thrown on top of him. When he tried
to lift his head because he could not breathe, a guard stepped on his head,
telling him to keep his head down.
2.8 Mr. Jacques Yeun, born on 12 July 1949, states that, after the mobile
guards entered the premises, he was bludgeoned and thrown on the ground like
an animal. He states that, while in the barracks during the night, he was
harassed by the guards, who continued to beat the detainees.
2.9 Mr. Albert Tematahotoa, born on 16 May 1961, affirms that he was beaten
and ill-treated and states that he was released at 9.30 p.m., without having
had anything to drink or eat.
2.10 Mr. Ralph Taaviri, born on 14 October 1954, states that he was
threatened with a gun and was hit in the back with the butt of a rifle,
which caused him to fall. His hands were bound with electric cable so
tightly that he lost the feeling in his fingers. In the barracks, the
detainees did not get anything to drink, nor were they allowed to go to the
bathroom until a Polynesian guard came on duty, who gave them one bottle of
water for all of them and allowed them to relieve themselves. He states that
late in the evening he was taken for interrogation. He was chained by the
arm to a guard and by one leg to another guard because it was dark and it
was allegedly necessary for security. During the night, guards continued to
harass him, so that he could not sleep. In the morning, when he had
difficulty sitting down as ordered because of cramp, he was kicked over onto
his back on the floor.
2.11 Mr. Lionel Lagarde, born on 5 October 1934, confirms the story as told
in general terms above, and states that he was brought before the judge on
Sunday at 4 p.m.
2.12 Mr. Irvine Paro, born on 24 March 1945, states that he was at the
police station on Saturday morning, 9 September, in connection with the
riots on the preceding Wednesday, thereby escaping the maltreatment to which
his colleagues were subjected. Later, he was detained with his colleagues in
the barracks and suffered the same ill-treatment and humiliations.
2.13 Mr. Ronald Terorotua, born on 27 March 1955, states that he was in the
hall of the building when the mobile guards entered. He was threatened with
a gun, told to lie down and hit with a bludgeon. Later, he was hit in the
back with an electric prod while walking towards the van. He was pushed on
top of his colleagues in the van. Later, he was interrogated from 1.30 to 6
p.m., with a two-hour pause; all this time he was not given anything to
drink. A doctor came only to take his blood pressure and to see whether or
not he was a heart patient.
2.14 Mr. Bruno Tetaria, born on 3 February 1960, states that, when the
mobile guards arrived he was told to lie down with his hands behind his
head, face down. Having done this, he was hit with a bludgeon and told to
get up. Thrown in the van, he was again hit in the back, and when he lifted
his head, a guard stepped on his neck. At the police station he was told to
kneel and was hit in the back because he had difficulty getting into that
position. In the barracks it was very cold and he was shivering;
nevertheless he was not given a blanket.
2.15 Mr. Hirohiti Tefaarere, the General Secretary of A TI'A I MUA, born on
19 June 1954, states that, when the police arrived at the union premises, he
told his colleagues to remain calm and not to resist. When he was standing
with his hands up, two guards threw him to the floor, after which he was
handcuffed and insulted. Another guard came and walked over his back. He was
then taken home to be searched and was again maltreated in front of his
family.
The Complaint
3.1 The authors state that they were subjected to ill-treatment in terms of
article 16 of the Convention against Torture. Further, they claim that
France has not satisfied its obligations under articles 10, 11, 12 and 13 of
the Convention.
3.2 As regards the exhaustion of domestic remedies, the authors state that
their counsel filed a complaint with the Dean of Magistrates in Papeete for
cruel and inhuman treatment, for Ralph Taaviri on 20 October, for Cyril Le
Gayic, Jean-Michel Garrigues, Tu Yan, Irvine Paro, Bruno Sandras, Eug�ne
Sommers, Jacques Yeun, Albert Tematahotoa, Ronald Terorotua, Bruno Tetaria,
Hiro Tefaarere on 23 October, and for Lionel Lagarde on 24 November 1995
respectively, without result.
3.3 It is stated that the same matter has not been submitted to any other
procedure of international investigation or settlement.
State Party's Observations on the Admissibility of the Communication
4.1 By its submission of 17 September 1996, the State party argues that the
communication is inadmissible because of non-exhaustion of domestic
remedies.
4.2 The State party submits that acts of violence against persons are
criminal offences under article 309 of the Penal Code, and under article 186
if the violence is committed by a public officer.
4.3 The State party explains that according to article 85 of the Code of
Criminal Procedure, anyone who considers himself injured by a crime may file
a complaint as a civil party before the competent magistrate. Articles 86,
87, 177, 178 and 179 lay down the procedure to follow. When a complaint is
received, the magistrate informs the public prosecutor. The prosecutor can
request the magistrate to hear the complaining party, if the complaint does
not contain enough information to base the indictments on. If the magistrate
considers that the facts disclose no criminal offence or cannot lead to a
prosecution, or that the complaint is inadmissible, he produces a reasoned
decision, which can be appealed by the interested parties, to the Court (Chambre
d'accusation). A decision by the magistrate to dismiss a complaint is also
appealable. The State party submits that the procedure is effective and must
be exhausted before a complaint can be submitted to the Committee against
Torture.
4.4 In fact, the authors made use of the procedure and lodged complaints
with the Dean of Magistrates in Papeete. Subsequently, the public
prosecutor, on 10 October, 29 November and 15 December 1995 and 28 March
1996, requested the opening of legal proceedings on an unspecified number of
counts of violence committed by public agents, invoking articles 309, 186
and 198 of the former Criminal Code. The four requests were given to the
Dean of Magistrates under one file number, 5070.
4.5 The investigating magistrate ordered medical examinations of the
claimants. The medical examiner filed his reports on 3 January and 22 May
1996. According to the reports, three unionists, Messrs. Taaviri, Tetaria
and Tematahotoa, showed after-effects of injuries. Upon request of the
authors' counsel, a psychiatric examination of 10 of the claimants was
ordered on 10 June 1996, to evaluate the psychological consequences of the
treatment they claim to have been subjected to.
4.6 On 19 October 1995, the investigating magistrate ordered a commission of
inquiry to interview the officers in charge of apprehending the A TI'A I MUA
members on 9 September. It appears from the commission's report that the
police officers interviewed contest the violent acts alleged by the
complainants, although they recognize that their intervention was firm
because of the tense situation.
4.7 On 7 March 1996, pictures of the police officers who had participated in
the intervention were given to the complainants for identification purposes.
According to the State party, the complainants had difficulty in formally
identifying the perpetrators of the violence of which they complain.
4.8 The State party submits that several of the complainants were summoned
to a further hearing on 9 September 1996 and that the investigations are
continuing without delay. The State party thus argues that the authors
cannot invoke the exceptions to the rule of exhaustion of domestic remedies
laid down in article 22, paragraph 5 (b), of the Convention, since their
application is not unduly prolonged nor can it be said that it is unlikely
to bring effective relief.
Counsel's Comments on the State Party's Submission
5.1 In his reply to the State party's submission, counsel argues that the
requirement of exhaustion of domestic remedies applies at the moment when
the Committee actually examines the admissibility of the communication, not
at the time of submission. According to counsel, it is thus not certain that
domestic remedies will not be exhausted when the Committee considers the
communication.
5.2 Counsel further points out that cruel, inhuman or degrading treatment is
not a criminal offence under French law, for which reason the authors had to
base themselves on articles 309 and 63 of the (former) Penal Code.
5.3 Moreover, counsel recalls that the rule of exhaustion of domestic
remedies does not apply when the remedies are not likely to be effective. In
this context, counsel submits that, on 2 October 1996, the complainants
requested the investigating magistrate, under article 81 of the Code of
Criminal Procedure, to proceed to a reconstruction of the events, including
the conditions in which they were arrested, transported in a van and
detained. On 18 October 1996, the magistrate rejected their request. The
complainants have appealed this decision to the Court of Appeal of Papeete.
5.4 According to counsel, the refusal deprives the complainants of an
effective and useful remedy. Counsel argues that the reasons on which the
magistrate based his decision (the harmful media effects) ("le
retentissement m�diatique n�faste"), are totally unacceptable and show that
he recognizes that the reconstruction would reveal a disturbing reality. It
is stated that the magistrate also objected to the costs such a
reconstruction would entail.
5.5 Counsel argues that with this decision, the magistrate has violated his
international obligations under articles 10, 11, 12 and 13 of the Convention
against Torture. Counsel therefore contends that the procedure can no longer
be seen as likely to bring effective relief and that the communication
should thus be declared admissible.
6.1 In a further submission, counsel states that the Court of Appeal of
Papeete has confirmed the decision by the investigating magistrate of 18
October 1996 rejecting the complainants' request for a reconstruction.
Counsel states that the complainants have requested a judicial review
(cassation) of this decision and submits that all domestic remedies will
thus have been exhausted when the Committee takes up the communication.
Counsel adds that it is clear that the procedure initiated under article 85
of the Code of Criminal Procedure will not give effective relief. According
to counsel, this is also shown by the fact that there has been as yet no
arraignment (mise en examen) of the accused although the complainants have
recognized their aggressors from the pictures furnished by the investigating
magistrate.
6.2 Counsel alleges that the reconstruction in situ was refused because it
would reveal a violation of article 16 of the Convention.
Issues and Proceedings Before the Committee
7.1 Before considering any claim in a communication, the Committee must
decide whether or not it is admissible under article 22 of the Convention.
7.2 Article 22, paragraph 5 (b), of the Convention precludes the Committee
from considering any communication unless it has ascertained that all
available domestic remedies have been exhausted. The Committee notes that
the ill-treatment inflicted on the complainants is currently the subject of
a judicial review in Papeete. The Committee finds that the information
before it does not suggest that the recourse procedure is being unreasonably
delayed or that it is unlikely to bring the complainants effective relief.
It observes, therefore, that the conditions laid down in article 22,
paragraph 5 (b), of the Convention have not been met.
8. The Committee therefore decides:
(a) That the communication is inadmissible;
(b) That this decision may be reconsidered under rule 109 of the rules of
procedure if the Committee receives a written request by or on behalf of the
individuals concerned containing documentary evidence to the effect that the
reasons for inadmissibility no longer apply;
(c) That this decision shall be communicated to counsel for the complainants
and to the State party.
[Done in English, French, Russian and Spanish, the French text being the
original version.]
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