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1.1 The author of the
communication is Mr. Anthony Michael Emmanuel Fernando, a Sri Lankan
national currently seeking asylum in Hong Kong. He claims to be a victim of
violations by Sri Lanka of his rights under articles 7, 9, 10, paragraph 1,
14, paragraphs 1, 2, 3, (a), (b), (c), (d), (e), 5, and articles 19, and 2,
paragraph 3, of the Covenant on Civil on Civil and Political Rights. He is
represented by counsel, Kishali Pinto-Jayawardena and Suranjith Hewamanne.
1.2 A request for interim measures to release the author from prison in Sri
Lanka, submitted at the same time as the communication, was denied by the
Special Rapporteur on New Communications.
FACTUAL BACKGROUND
2.1 The author filed a workers compensation claim with the Deputy
Commissioner of Worker's Compensation, for redress in respect of injuries he
had suffered. According to the Court proceedings, the author was an employee
of the Young Men's' Christian Association (Y.M.C.A). While engaged in that
employment he suffered injuries as a result of a fall. The Deputy
Commissioner of Workmen's Compensation held an inquiry into the incident.
The author and the Y.M.C.A were represented by lawyers. A settlement was
arrived at but when the matter was called before the Deputy Commissioner on
9 January 1998, the author refused to accept the settlement. The author's
claim was thereafter dismissed and following the rejection of his claim, the
author filed four successive motions in the Supreme Court. The first two
motions concerned alleged violations of his constitutional rights by the
Deputy Commissioner of Worker's Compensation. On 27 November 2002, the
Supreme Court considered these two motions jointly and dismissed them.
Thereafter, on 30 January 2003, the author filed a third motion, claiming
that the first two motions should not have been heard jointly, and that
their consolidation violated his constitutional right to a "fair trial". On
14 January 2003, this motion was similarly dismissed.
2.2 On 5 February 2003, the author filed a fourth motion, claiming that the
Chief Justice of Sri Lanka and the two other judges who had considered his
third motion should not have done so, as they were the same judges who had
consolidated and considered the first two motions. During the hearing of
this motion on 6 February 2003, the author was summarily convicted of
contempt of court and sentenced to one year's "rigorous imprisonment"
(meaning that he would be compelled to perform hard labour). He was
imprisoned on the same day. According to the author, approximately two weeks
later, a "second" contempt order was issued by the Chief Justice, clarifying
that, despite earlier warnings, the author had persisted in disturbing court
proceedings. The operative part of the Order stated as follows: "The
petitioner was informed that he cannot abuse the process of Court and keep
filing applications without any basis. At this stage he raised his voice and
insisted on his right to pursue the application. He was then warned that he
would be dealt with for contempt of Court if he persists in disturbing the
proceedings of Court. In spite of the warning, he persists in disturbing the
proceedings of Court. In the circumstances, we find him guilty of the
offence of contempt of Court and sentence him to one year rigorous
imprisonment. The Registrar is directed to remove the Petitioner from Court
and commit him to prison on the sentence that is imposed". The Order was
based on article 105 (3) of the Sri Lankan Constitution, which confers on
the Supreme Court "the power to punish for contempt of itself, whether
committed in the court itself or elsewhere, with imprisonment or fine or
both as the court may deem fit.....". [FN1] According to the author, neither
the Constitution nor any other statutory provisions regulate the procedure
for informing the person in contempt of the charges against him, so as to
enable him to consult a lawyer or appeal against the order of the Supreme
Court, nor does it specify the sentence that may be imposed in cases of
contempt.
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[FN1] "Article 105 (3), provides that "The Supreme Court of the Republic of
Sri Lanka and the Court of Appeal of the Republic of Sri Lanka shall each be
a superior court of record and shall have all the powers of such court
including the power to punish for contempt of itself, whether committed in
the court itself or elsewhere, with imprisonment or fine or both as the
court may deem fit. The power of the Court of Appeal shall include the power
to punish for contempt of any other court, tribunal or institution referred
to in paragraph (1) (c) of this article, whether committed in the presence
of such court or elsewhere:
Provided that the preceding provisions of this Article shall not prejudice
or affect the rights now or hereafter vested by any law in such other court,
tribunal or institution or punishment for contempt of itself."
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2.3 Following his imprisonment, the author developed a serious asthmatic
condition which required his hospitalization in an intensive care unit. On 8
February 2003, he was transferred to a prison ward of the General Hospital,
where he was made to sleep on the floor with his leg chained, and only
permitted to move to go to the toilet. He developed a chill from lying on
the floor, which worsened his asthmatic condition. Neither the author's wife
nor his father was informed that he had been transferred to hospital; they
had to make their own enquiries.
2.4 On 10 February 2003, the author experienced severe pain all over his
body but was not given medical attention. On the same day, he was returned
to prison and was assaulted several times by prison guards during his
transfer. In the police van, he was repeatedly kicked on the back, causing
damage to his spinal cord. On arrival at the prison, he was stripped naked
and left lying near the toilet for more than 24 hours. When blood was
noticed in his urine, he was returned to the hospital, where he was
subsequently visited by the United Nations Special Rapporteur on
Independence of the Judges and Lawyers, who expressed concern about the
case. After 11 February 2003, the author was allegedly unable to rise from
his bed. On 17 October 2003, he was released from prison, after completing
ten months of his sentence. The Sri Lankan authorities brought criminal
charges against the prison guards accusing them of having been involved in
the assault of the author. They have since been released on bail, pending
trial.
2.5 On 14 March 2003, the author filed a fundamental rights petition under
article 126 of the Constitution with respect to his alleged torture, which
is currently pending in the Supreme Court. He also submitted an appeal
against his conviction for contempt, on the grounds that no charge was read
out to him before conviction and that the sentence was disproportionate. He
also submitted that the matter should not be heard by the same judges, since
they were biased. The appeal was heard by the same three judges who had
convicted him and was dismissed on 17 July 2003.
THE COMPLAINT
3.1 The author claims violations of his rights under article 14, paragraphs
1, 2, and 3 (a), (b), (c) and (e), and 5, in that: he was denied a hearing
on the question of contempt, having been convicted summarily; conviction and
sentence were handed down by the same judges who had considered his previous
three motions; [FN2] he had not been informed of the charges against him,
nor given adequate time for the preparation of his defence; [FN3] the appeal
was heard by the same Supreme Court judges who had previously considered the
matter; there was no proof that he had committed contempt of court or that
"a deliberate intention" to commit contempt, required under domestic law,
had been established; the term of one years imprisonment was grossly
disproportionate to the offence which he was found to have committed.
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[FN2] The author refers to Karttunen v. Finland, Case No. 387/1989 and
Gonzalez del Rio v. Peru, Case No. 263/1987. He also distinguishes the
current case from that of Rogerson v. Australia, Case No. 802/1998 and
Collins v. Jamaica, Case No. 240/1987.
[FN3] He refers to a press release of 17 February 2003, in which it is
stated that the UN Special Rapporteur on the Independence of the Judges and
Lawyers and the Sri Lankan Legal Profession, are of the view that contempt
of court cases are not an exception to the right of an accused to present a
defence.
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3.2 The author claims that the fact that the same judges heard all his
motions was contrary to domestic law. According to the author, Section 49
(1) of the Judicature Act No. 2 of 1978 (as amended) stipulates that no
judge shall be competent, and in no case shall any judge be compelled to
exercise jurisdiction in any action, prosecution, proceedings or matter in
which he is a party or is personally interested. Sub-section (2) of the
section provides that no judge shall hear an appeal from, or review, any
judgment, sentence or order passed by himself. Sub-section (3) provides that
where any judge who is a party or personally interested, is a judge of the
Supreme Court or the Court of Appeal, the action, prosecution or matter to
or in which he is a party or is interested, or in which an appeal from his
judgment shall be preferred, shall be heard or determined by another judge
or judges of the court. In support of the author's view that the trial was
unfair he refers to international and national concern regarding the conduct
of the Chief Justice. [FN4]
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[FN4] Report of the United Nations Special Rapporteur on Independence of
Judges and Lawyers to the United Nations Commission in April 2003, in which
it states that "the Special Rapporteur continues to be concerned over the
allegations of misconduct on the part of the Chief Justice Sarath Silva, the
latest being the proceedings filed against him and the Judicial Service
Commission in the Supreme Court by two district judges...." He also refers
to the Report of the International Bar Association, 2001, Sri Lanka on
failing to protect the rule of law and the independence of the judiciary.
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3.3 The author argues that his imprisonment without a fair trial amounts to
arbitrary detention, in violation of article 9 of the Covenant. He refers to
the criteria under which the Working Group on Arbitrary Detention determines
whether a deprivation of liberty is arbitrary.
3.4 The author claims that his freedom of expression under article 19 was
infringed by the imposition of a disproportionate prison sentence, given
that the exercise of contempt powers was neither "prescribed by law", (given
the insufficient precision of the relevant provisions), nor "necessary to
protect the administration of justice" or "public order" (article 19 (3)
(b)), in the absence of an abusive behaviour on his part that could be
considered as "scandalizing the court". He argues that his treatment and the
consequent restrictions of his freedom of expression did not meet the three
pre-conditions for a limitation: [FN5] it must be provided by law; it must
address one of the aims set out in paragraphs 3(a) and (b) of article 19;
and it must be necessary to achieve a legitimate purpose.
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[FN5] Faurisson v. France, Case No. 550/93.
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3.5 On the first condition, the author argues that the restriction is not
provided by law, as the measures in question are not clearly delineated and
so wide in their ambit that they do not meet the test of certainty required
for any law. He invokes the case law of the European Court on Human Rights
for the proposition that the legal norm in question must be accessible to
individuals, in that they must be able to identify it and must have a
reasonable prospect of anticipating the consequences of a particular action.
[FN6] The State party's laws on contempt are opaque, inaccessible and the
discretion for the Supreme Court to exercise its own powers of contempt is
so wide and unfettered that it fails the test of accessibility and
predictability.
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[FN6] Grigoriades v. Greece (24348/94) and Sunday Times v. the United
Kingdom (6538/74) 1979.
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3.6 On the second condition, it is argued that the latitude afforded to the
judiciary regarding its powers of contempt under Sri Lankan law, and the
extent to which they operate as a restriction on the right to freedom of
expression, are not sufficiently closely related to the aims specified in
article 19, namely the protection of "public order" and "the rights and
reputation of others". On the third condition, while the right to freedom of
expression may be restricted, "to protect the rights and reputations of
others", and in this instance, to safeguard the administration of justice,
the powers of the Supreme Court provided for under Sri Lankan law for
contempt of court, including the power to impose prison sentences, are
wholly disproportionate and cannot be justified as being "necessary" for
this end. Even if the Committee were to find that there is a pressing social
need in this case (to secure the administration of justice) and that the
author was in fact in contempt, one year of imprisonment � with hard labour
- is in no way a proportionate or necessary response. [FN7]
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[FN7] The author refers to the European Court of Human Right's case of De
Haes & Gijsels v. Belgium.
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3.7 The author claims that article 105 (3) of the Sri Lankan Constitution is
in itself incompatible with articles 14 and 19 of the Covenant. He claims
violations of articles 7 and 10, paragraph 1, in relation to his assault and
his conditions of his detention (paras. 2.3 and 2.4 above). He also claims
that in having submitted his appeal against his conviction for contempt, he
has exhausted all available domestic remedies.
THE STATE PARTY'S ADMISSIBILITY SUBMISSION
4.1 On 27 August 2003, the State party provided its comments on the
admissibility of the communication. It submits that the appeal judgment, of
17 July 2003, of the Supreme Court on the author's conviction for contempt,
deals with the entirety of the case; it is significant that the author
failed to express regret for this "contemptuous behaviour", though given an
opportunity to do so by Court, and thereby exhibiting his contempt of
justice and the judiciary.
4.2 With regard to the alleged torture by the Prison Authorities, the State
party confirms that it had taken measures to charge the persons held
responsible, that the case is still pending and that the accused are
currently on bail, pending trial. There are two cases pending before the
courts. If the accused are convicted they will be sentenced. Further, it is
confirmed that the author has filed a fundamental rights petition in the
Supreme Court against the alleged torture, which remains pending. In the
event that the Supreme Court decides the fundamental rights application in
the author's favour he will be entitled to compensation. As such, the
allegation of torture is inadmissible for failure to exhaust domestic
remedies. Further, since the State took all possible steps to prosecute the
alleged offenders there can be no cause for further complaint against the
State in this regard.
4.3 The State party adds that the Sri Lankan Constitution provides for an
independent judiciary. The judiciary is not under the State's control and as
such the State cannot influence nor give any undertaking or assurances on
behalf of the judiciary on the conduct of any judicial officer. If the State
attempts to influence or interfere with the judicial proceedings, this would
be tantamount to an interference with the judiciary and would lead to any
officer responsible facing charges of contempt himself.
4.4 Although the State party requested the Committee to consider the
admissibility separately from the merits of the communication, the Committee
advised, through its Special Rapporteur on New Communications, that it would
consider the admissibility and merits of the communication together, on the
basis that the State party's future submissions on the merits would provide
greater clarity on the issues of admissibility and that the information
provided was too scarce for any final determination on these issues at that
point.
INTERIM MEASURES REQUEST
5.1 On 15 December 2003, following the receipt of death threats, the author
requested interim measures of protection, requesting the State party to
adopt all necessary measures to ensure his protection and that of his
family, and to ensure that an investigation into the threats and other
measures of intimidation be initiated without delay. He submits that on 24
November 2003, at about 9.35 a.m., an unknown person called his mother and
asked her whether he was at home. When she answered in the negative, this
person made death threats against the author and demanded that he withdraw
his three complaints: The communication to the Human Rights Committee; the
fundamental rights case in the Supreme Court regarding alleged torture; and
the complaint filed in the Colombo Magistrate's Court against the two
Welikade prison guards. The caller did not reveal his identity.
5.2 On 28 November 2003, the author's complaint against the two prison
guards was taken up in the Colombo Chief Magistrate's court, and the author
was present. The magistrate directed the police to charge the accused on 6
February 2004, as they had failed on three occasions to present themselves
before the Maligakanda Mediation Board, as directed by the court. Later that
day on 28 November 2003, his mother told him that an unidentified person had
come to the house at about 11.30 a.m. and, while standing outside the locked
gate, had called out for the author. When the author's mother told him that
he was not in, he went away threatening to kill him. Once again, on 30
November 2003, at about 3.30 p.m., the same person returned, behaved in the
same threatening manner and demanded that the author's mother and father
send their son out of the house. The author's parents did not respond and
called the police. Before the police arrived, the person uttered threats
against the author's parents and after once again threatening to kill the
author left the premises. The author's mother filed a complaint at the
police station on the same day.
5.3 On 24 November 2003, at 10.27 a.m., an unidentified person called at the
office of a Sri Lankan newspaper, Ravaya, which had supported the author
throughout his ordeal. The caller spoke to a reporter and leveled death
threats against him and the editor of Ravaya, demanding that they cease
publishing further news concerning the author. This newspaper had published
interviews of the author on 16 and 23 February and 2 November 2003 regarding
the alleged miscarriage of justice suffered by him. The threats were
reported in the weekend edition of the Ravaya newspaper.
5.4 The author adds that, on 4 December 2003, he received information to the
effect that the two prison guards who had been cited in the fundamental
rights petition filed by the author as well as in the case filed in the
Colombo Magistrate's court, had been reinstated: one of them was transferred
to the New Magazine prison and the other remains at the Welikade prison. As
a result, the author lives in daily fear for his life as well as for the
life and safety of his wife, his son and his parents. In spite of his
complaint to the authorities, he has not, to date, received any protection
from the police and is unaware of what action has been taken to investigate
the threats against himself and his family. He recalls that he had received
death threats in prison as well; he invokes the Committee's Concluding
Observations, of November 2003, which stated that, "The authorities should
diligently enquire into all cases of suspected intimidation of witnesses and
establish a witness protection program in order to put an end to the climate
of fear that plagues the investigation and prosecution of such cases." He
also refers to the Committee's Views in Delgado Paez v Colombia on the State
party's obligation to investigate and protect subjects of death threats.
[FN8]
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[FN8] Delgado Paez v. Colombia, Case no. 195/1985 - "States parties have
undertaken to guarantee the rights enshrined in the Covenant. It cannot be
the case that, as a matter of law, States can ignore known threats to the
life of persons under their jurisdiction, just because he or she is not
arrested or otherwise detained. States parties are under an obligation to
take reasonable and appropriate measures to protect them......."
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5.5 On 9 January 2004, pursuant to rule Rule 86 of the rules of procedure
and, on the behalf of the Committee, the Special Rapporteur on New
Communications requested the State party to adopt all necessary measures to
protect the life, safety and personal integrity of the author and his
family, so as to avoid irreparable damage to them, and to inform the
Committee on the measures taken by the State party in compliance with this
decision within 30 days from the date of the Note Verbale, i.e. not later
than by 9 February 2004.
5.6 On 3 February 2004, the author submitted that on the morning of 2
February 2004, he had been subjected to an attack by an unknown assailant
who sprayed chloroform in his face. A van pulled up close by during the
attack, and the author believes that it was going to be used to kidnap him.
He managed to escape and was taken to hospital. Had he not escaped, he would
have been the victim of an assassination or disappearance. On 13 February
2004, the Committee, through its Special Rapporteur on New Communications,
reiterated his previous request to the State party under Rule 86 of the
Committee's rules of procedure in his note of 9 January 2004.
5.7 On 19 March 2004, the State party commented on the attack against the
author of 2 February 2004. It submits that the Attorney General's Department
directed the police to investigate the alleged attack and to take measures
necessary to ensure his safety. The police recorded his statement in which
he was unable to either name the suspects or to provide the police with the
number of the vehicle that the alleged assailants had traveled in. The
investigations remain in progress and steps will be taken to inform the
author of the outcome. If the investigations reveal credible evidence that
the threats were caused by any person with a view to subverting the course
of justice, the State party will take appropriate action.
5.8 With regard to the author's security, a police patrol book has been
placed at his residence and police patrol have been directed to visit his
residence day and night and to record their visits in the police patrol
book. In addition to this, his residence is kept under surveillance by
plain-cloth policemen. There is no evidence to conclude that the author
received threats to his life because of his communication to the Human
Rights Committee.
THE STATE PARTY'S MERITS SUBMISSION
6.1 On 16 March 2004, the State party provided its submissions on the
merits. On the alleged violations of articles 9, 14 and 19 of the Covenant,
it concedes that the author has exhausted domestic remedies. It refers to
the judgment of the Supreme Court of 17 July 2003, on appeal against the
contempt order, and submits that it cannot comment on the merits of any
judgment given by a competent Sri Lankan Court. The State party relies on
the arguments set out in the judgment for its proposition that the author's
rights were not violated. It submits that the manner in which the author
behaved from the time he walked out on a settlement reached between himself
and the Y.M.C.A, where both parties were legally represented, before the
Deputy Commissioner General of Workman's Compensation, to the point of his
refusal to express any regret for his behaviour, when his case for contempt
was reviewed by the Supreme Court, demonstrates the author's lack of respect
for upholding the dignity and decorum of a judicial tribunal. It refers to
the judges' consideration of the powers vested in such Courts to deal with
cases of contempt, noting that in such cases committed in the face of the
Court punishment may be imposed summarily. While the author was given an
opportunity to mitigate the sentence by way of apology, he failed to do so.
6.2 Freedom of speech and expression, including publication, are guaranteed
under article 14, paragraph 1 (a), of the Sri Lankan Constitution. Under
article 15, paragraph 2, it is permissible to place restrictions on rights
under article 14; these may be prescribed by law in relation to contempt of
court. The State party denies that the power of the Supreme Court under
article 105, paragraph 3 of the Constitution is inconsistent with either the
fundamental right guaranteed by Article 14, paragraph l (a) of the Sri
Lankan Constitution or with articles 19 or 14 of the Covenant.
6.3 The State party reiterates that the author did not exhaust domestic
remedies with respect to the claim relating to torture and ill-treatment as
the case is still pending. Since the State cannot make submissions on behalf
of the accused, it would be tantamount to a breach of rules of natural
justice for the Committee to express its views on the alleged violation, as
there is no opportunity for the persons accused of the assault to give their
version of the incident. A determination of the case by the Committee at
this stage would be prejudicial to the accused and/or the prosecution. It
observes that the author has not submitted that such remedies are
ineffective or that such remedies would be unreasonably prolonged.
6.4 The State party notes that the fundamental rights case filed by the
author in the Supreme Court remains pending, and that a violation of the
same rights as those protected under articles 7 and 10, paragraph 1, of the
Covenant will be considered in these proceedings. It further submits that it
has declined to appear for the individuals against whom allegations of
torture are made. The Attorney General who represents the State refrains, as
a matter of policy, from appearing for public officers against whom
allegations of torture are pending, since the Attorney General could
consider filing criminal charges against the perpetrators even after such a
case is concluded. In the present case such action (criminal prosecution) is
pending.
THE AUTHOR'S COMMENTS ON ADMISSIBILITY AND THE MERITS
7.1 On 6 August 2004, the author commented on the State party's submission
and reiterated his earlier claims. Following the attack on him of 2 February
2004, he lived in hiding. Despite having made complaints to the police, no
investigations were made, and no one was prosecuted or arrested. Although
the author concedes that police patrols did pass by his house he argues that
this is insufficient protection from an attempted kidnapping and possibly
attempted murder. He was diagnosed with post-traumatic stress disorder and
his mental health deteriorated. Because of these events, he left Sri Lanka
on 16 July 2004 and applied for asylum in Hong Kong, where he continues to
receive treatment for his mental difficulties. His application has not yet
been considered. He contests the State party's view that it has no role to
play with regard to a judgment pronounced by a local court of law.
7.2 Contrary to his initial submission, the author now contends that no
charges have been filed against the suspects of the alleged assault to date.
According to him, preliminary reports called "B reports" have been before
the Magistrate's Court in Colombo, but these are merely reports relating to
the progress of the inquiries. The last time this report was heard by the
Court was on 23 July 2004. Thus, even after one and a half years after the
incident, the inquiry is supposed to be continuing. In the author's view,
this failure by the State party promptly to investigate complaints of
torture violates article 2, and the lack of witness protection makes it
impossible to participate in any trial that may eventually take place.
7.3 The author also claims that the State party has failed to contribute to
his rehabilitation. He states that four doctors have diagnosed him with
psychological trauma caused by the above events, but that his fundamental
rights and request for compensation application filed on 13 March 2003 has
been postponed constantly. According to article 126 (5) of the Constitution,
"[t]he Supreme Court shall hear and finally dispose of any petition or
reference under this article within two months of the filing of such
petition or the making of such reference". The author's petition remains
pending. The State party's failure to consider these applications are also
said to demonstrate that exhaustion of domestic remedies with respect to the
alleged violations of articles 7 and 10, paragraph 1 has been unduly
prolonged, and that the remedies are ineffective.
7.4 The author adds a new claim relating to his conviction for contempt,
that he was not given an opportunity to be tried and defend himself in
person, or through legal assistance of his own choosing and he was not
informed of the right to have legal assistance, nor was legal assistance
assigned to him. In this regard he claims a violation of article 14,
paragraph 3 (d).
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
8.1 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.
8.2 As to the alleged violation of articles 7 and 10, paragraph 1, with
respect to the author's alleged torture and his conditions of detention, the
Committee notes that these issues are currently pending before both the
Magistrate Court and the Supreme Court. Although it is unclear whether the
individuals allegedly responsible for the assault have been formally
charged, it is uncontested that this matter is under review by the
Magistrates Court. The Committee is of the view that a delay of 18 months
from the date of the incident in question does not amount to an unreasonably
prolonged delay within the meaning of article 5, paragraph 2 (b), of the
Optional Protocol. The Committee therefore finds these claims inadmissible
for non-exhaustion of domestic remedies in accordance with article 5,
paragraph 2 (b) of the Optional Protocol.
8.3 As to the claim that the author's detention was arbitrary under article
9, since it was ordered after an allegedly unfair trial, the Committee finds
that this claim is more appropriately dealt together with article 14 of the
Covenant as it relates to post-conviction detention.
8.4 As to the alleged violation of article 14, paragraph 3 (c), the
Committee finds that this claim has not been substantiated for the purpose
of admissibility and is therefore inadmissible under article 2 of the
Optional Protocol.
8.5 As to the remaining claims of violations of articles 9, paragraph 1, and
14, paragraphs 1, 2, 3 (a), (b), (d), (e), and 5, and article 19, the
Committee considers these claims are sufficiently substantiated and finds no
other bar to their admissibility.
CONSIDERATION OF THE MERITS
9.1 The Human Rights Committee has considered the present communication in
light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol.
9.2 The Committee notes that courts notably in Common Law jurisdictions have
traditionally enjoyed authority to maintain order and dignity in court
debates by the exercise of a summary power to impose penalties for "contempt
of court." But here, the only disruption indicated by the State party is the
repetitious filing of motions by the author, for which an imposition of
financial penalties would have evidently been sufficient, and one instance
of "rais[ing] his voice" in the presence of the court and refusing
thereafter to apologize. The penalty imposed was a one year term of
"Rigorous Imprisonment". No reasoned explanation has been provided by the
court or the State party as to why such a severe and summary penalty was
warranted, in the exercise of a court's power to maintain orderly
proceedings. Article 9, paragraph 1, of the Covenant forbids any "arbitrary"
deprivation of liberty. The imposition of a draconian penalty without
adequate explanation and without independent procedural safeguards falls
within that prohibition. The fact that an act constituting a violation of
article 9, paragraph 1 is committed by the judicial branch of government
cannot prevent the engagement of the responsibility of the State party as a
whole. The Committee concludes that the author's detention was arbitrary, in
violation of article 9, paragraph 1. In the light of this finding in the
present case, the Committee does not need to consider the question whether
provisions of article 14 may have any application to the exercise of the
power of criminal contempt. Similarly, the Committee does not need to
consider whether or not there was a violation of article 19.
10. 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 State party has violated articles 9,
paragraph 1, of the International Covenant on Civil and Political Rights.
11. In accordance with article 2, paragraph 3 (a), of the Covenant, the
State party is under an obligation to provide the author with an adequate
remedy, including compensation, and to make such legislative changes as are
necessary to avoid similar violations in the future. The State party is
under an obligation to avoid similar violations in the future.
12. Bearing in mind that, by becoming a State party to the Optional
Protocol, the State party 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 and subject to its
jurisdiction the rights recognized in the Covenant, the Committee wishes to
receive from the State party, within 90 days, information about the measures
taken to give effect to its Views. The State party is also requested to
publish the Committee's Views.
________________________
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. |
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