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Pedro Pablo Camargo v. Colombia, Communication No.

45/1979 (31
March 1982), U.N. Doc. CCPR/C/OP/1 at 112 (1985).

FACTS:

the judge of the 77th Military Criminal Court of Investigation, himself a


member of the police, ordered a raid to be carried out in the "Contador"
district of Bogota. The raid was ordered in the belief that Miguel de German
Ribon, former Ambassador of Colombia to France, who had been kidnapped
some days earlier by a guerrilla organization, was being held prisoner in the
house in question. In spite of the fact that Miguel de German Ribon was not
found, the police patrol decided to hide in the house to await the arrival of
the "suspected kidnappers". They were killed as they arrived. Although the
police stated initially that the victims had died while resisting arrest,
brandishing and even firing various weapons, the report of the Institute of
Forensic Medicine (Report No. 8683, of 17 April 1978), together with the
ballistics reports and the results of the paraffin test, showed that none of the
victims had fired a shot and that they had all been killed at point-blank range,
some of them shot in the back or in the head. In the case of Mrs. Maria Fanny
Sudrez de Guerrero, the forensic report showed that she had been shot
several times after she had already died from a heart attack.

The author alleges that seven personsincluding Maria Fanny Sudrez de


Guerrero-were arbitrarily killed by the police, that the police action was
unjustified and that it has been inadequately investigated by the Colombian
authorities. He claims that, at the beginning, the case was shelved under
Legislative Decree loo. 00'70 of 20 3 January 1978 because the Colombian
authorities considered that the police had acted within the powers granted
by that Decree.
The author states that Legislative Decree No. 0070 of 1978 has established
a new ground of defence against a criminal charge so as to justify crimes
committed by members of the police force when they are taking part in
operations to repress certain types of offences.
The author claims that Decree No. 0070 of 1978 violates articles 6, 7, 9
and 14 and 17 of the International Covenant on Civil and Political Rights
because public authorities are allowed to violate the fundamental
guarantees of security of person, of privacy, home and correspondence,
individual liberty and integrity, and due process of law, in order to prevent
and punish certain types of offences.
ISSUE:
RULING:

In the present case it is evident from the fact that seven persons lost their
lives as a result of the deliberate action of the police that the deprivation of
life was intentional. Moreover, the police action was apparently taken without
warning to the victims and without giving them any opportunity to surrender
to the police patrol or to offer any explanation of their presence or intentions.
There is no evidence that the action of the police was necessary in their own
defence or that of others, or that it was necessary to effect the arrest or
prevent the escape of the persons concerned. Moreover, the victims were
no more than suspects of the kidnapping which had occurred some days
earlier and their killing by the police deprived them of all the protections of
due process of law laid down by the Covenant. In the case of Mrs. Maria
Fanny Suarez de Guerrero, the forensic report showed that she had been
shot several times after she had already died from a heart attack. There can
be no reasonable doubt that her death was caused by the police patrol.

13.3 For these reasons it is the Committee's view that the action of the police
resulting in the death of Mrs. Maria Fanny Suarez de Guerrero was
disproportionate to the requirements of law enforcement in the
circumstances of the case and that she was arbitrarily deprived of her life
contrary to article 6 (1) of the International Covenant on Civil and Political
Rights. Inasmuch as the police action was made justifiable as a matter of
Colombian law by Legislative Decree No. 0070 of 20 January 1978, the right
to life was not adequately protected by the law of Colombia as required by
article 6 (1).

The Committee is accordingly of the view that the State party should take
the necessary measures to compensate the husband of Mrs. Maria Fanny
Suarez de Guerrero for the death of his wife and to ensure that the right to
life is duly protected by amending the law.
Baboeram et al. v. Suriname
Communication No. 146/1983 and 148-154/1983 a/
4 April 1985
a number of persons in Paramaribo,
Suriname, were taken from their beds and arrested, including John Baboeram, whose corpse
along with the corpses of 14 other persons was identified as "heavily and brutally maltreated in
the face. He for
instance had a broken upper jaw. Almost all his teeth, except for one, on the upper right hand
side, were beaten inwards and his lips were pulped. He had a horizontal gash on his
forehead. In addition he had a bullet wound on the left side of his nose, which was later

covered by a plaster. Further he had wounds, cuts on the cheeks and internal haemorrhages."

2.2 With respect to the exhaustion of domestic remedies, the author states that no recourse
has been made to any court in Suriname because "it became obvious from different sources
that the highest military authority ... was involved in the killing", because the official judicial
investigation required in such a case of violent death had not taken place, and "because of
the atmosphere of fear one would find no lawyer prepared to [plead] such a case, considering
the fact that three lawyers have been killed, apparently because of their concern with human

rights and democratic principles".

The author claims that her husband was a victim of violations of articles 6, 7, 9, 10, 14

and 17 of the International Covenant on Civil and Political Rights.

4. In a submission dated 5 October 1983, the State party objected against the admissibility
of communication No. 146/1983 on the ground that the same matter had already been
submitted to and was "being examined under another procedure of international investigation
or settlement," referring in this connection to "investigations regarding the human rights
situation in Suriname by international organizations dealing with human rights such as the
Inter-American Commission on Human Rights and the International Committee of the Red

Cross".

* the alleged
victims were arrested at their respective homes in the early morning hours of 8 December
1982; in the evening of the same day it was declared by Surinamese authorities that a coup
attempt had been foiled and in the evening of 9 December 1982 it was declared that a
number of arrested persons had been killed during an attempt to escape; the bodies of the 15
persons lay from 10 to 13 December 1982 in the mortuary of the Academic Hospital and
were seen by family members and other persons; the bodies showed numerous wounds,
apparently inflicted from the front side. Neither autopsies nor official investigations of the

killings have taken place.


ISSUE:

RULING:

That the communications were admissible.

14.3 Article 6 (1) of the Covenant provides:


"Every human being has the inherent right to life. This right shall be protected by law. No
one shall be arbitrarily deprived of his life."
The right enshrined in this article is the supreme right of the human being. It follows that the
deprivation of life by the authorities of the State is a matter of the utmost gravity. This
follows from the article as a whole and in particular is the reason why paragraph 2 of the
article lays down that the death penalty may be imposed only for the most serious crimes.
The requirements that the right shall be protected by law and that no one shall be arbitrarily
deprived of his life mean that the law must strictly control and limit the circumstances in
which a person may be deprived of his life by the authorities of a State. In the present case
it is evident from the fact that 15 prominent persons lost their lives as a result of the
deliberate action of the military police that the deprivation of life was intentional. The State
party has failed to submit any evidence proving that these persons were shot while trying to
escape.
15. 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
victims were arbitrarily deprived of their lives contrary to article 6 (1) of the International
Covenant on Civil and Political Rights. In the circumstances, the Committee does not find

it necessary to consider assertions that other provisions of the Covenant were violated.
Mbenge v. Zaire
Communication No. 16/1977

25 March 1983

FACTS:

13. Daniel Monguya Mbenge, a Zairian citizen and former Governor of the province of
Shaba, who had left Zaire in 1974 and is at present living in Brussels, was twice sentenced
to capital punishment by Zairian tribunals. The first death sentence was pronounced against
him by judgement of 17 August 1977, in particular for his alleged involvement in the
invasion of the province of Shaba by the so-called Katangan gendarmes in March 1977. The
second judgement is dated 16 March 1978. It pronounces the death sentence for "treason' and
'conspiracy" without providing facts to establish these charges. Daniel Monguya Mbenge,
learned about the trials through the press. He had not been duly summoned at his residence
in Belgium to appear before the tribunals. An amnesty decree of 28 June 1978 (Act 78-023
of 29 December 1978) covering offences "against the external or -internal security of the
State or any other offence against the laws and regulations of the Republic of Zaire',
committed by Zairians having sought refuge abroad, was restricted to persons returning to

Zaire before 30 June 1979.

17. Daniel Monguya Mbenge also alleges a breach of article 6 of the Covenant. Paragraph
2 of that article provides that sentence of death may be imposed only "in accordance with
the law [of the State party] in force at the time of the commission of the crime and not

contrary to the provisions of the Covenant".

ISSUE:

RULING:

That, in addition to himself, the author was justified by reason of close family connection

the failure of the State party to respect the relevant requirements of article 14
(3) leads to the conclusion that the death sentences pronounced against the author of the
communication were imposed contrary to the provisions of the Covenant, and therefore in
violation of article 6 (2).

The Human Rights Committee, acting under article 5 (4) of the Optional Protocol to the
International Covenant on Civil and Political Rights, is of the view that the facts set out, in so far
as they have occurred on or after 1 February 1977, disclose violations of the International
Covenant on Civil and Political Rights, in particular:
(a) With respect to Daniel Monguya Mbenge:
of article 6 (2), because Daniel Monguya Mbenge was twice sentenced to death in
circumstances contrary to the provisions of the Covenants
of article 14 (3) (a), (b), (d) and (e), because he was charged, tried and convicted in
circumstances in which he could not effectively enjoy the safeguards of due process,
enshrined in these provisions;
(b) With respect to Abraham Oyabi:
of article 9, because he was subjected to arbitrary arrest and detention.
22. The Committee, accordingly, is of the view that the State party is under an obligation to
provide the victims with effective remedies, including compensation for the violations they

have suffered, and to take steps to ensure that similar violations do not occur in the future.
Lloydell Richards v. Jamaica, Communication No. 535/1993, U.N. Doc.
CCPR/C/59/D/535/1993 (31 March 1997).
FACTS:

On 15 March 1982, the author was charged with the murder, on 8 or


9 March 1982 in the Parish of Westmoreland, of one S.L. On 26 September
1983, he appeared before the Home Circuit Court of Kingston; on
arraignment, he pleaded guilty to manslaughter, a plea accepted by the
prosecution. Counsel for the defence then requested an adjournment in
order to call character witnesses in mitigation. The hearing was adjourned
to 3 October 1983. However, the Director of Public Prosecutions (DPP),
who has the authority, pursuant to Section 94, paragraph 3(c), of the
Jamaican Constitution, to discontinue any criminal proceedings at any
stage before judgement is delivered, considered that the plea of guilty to
manslaughter should not have been accepted and decided to discontinue
the proceedings in the case in order to charge the author with the murder
on a fresh indictment.

2.2 Accordingly, at the hearing of 3 October 1983, a nolle prosequi was


entered by the DPP; the new indictment was read out to the author, who
pleaded not guilty. On 6 December 1983, the author was tried in the Home
Circuit Court of Kingston, then presided over by another judge. On 13
December 1983, he was found guilty of murder and sentenced to death. On
appeal, counsel for the author argued that the trial had been unconstitutional,
in the light of the earlier acceptance by the prosecution of a plea of
manslaughter.

. Following the enactment of the Offences Against the Person


(Amendment) Act 1992, Jamaica created two categories of murder, capital
and non capital, consequently all persons previously convicted of murder
had their conviction reviewed and reclassified under the new system. In
December 1992, the author's offence was classified as A capital".

The case for the prosecution was that, on 8 March 1982 at about 8 p.m.,
the author, who worked as a driver of a minibus, picked up S.L., who was
living in Montego Bay. She was stranded in Savanna-la-mar, and although
Montego Bay was not on the scheduled route, the author said that he
would bring her home, as he had completed the last trip of the day. He first
dropped the conductor of the bus at his home. At 9 p.m., the author
stopped and had drinks in a bar. The bar owner saw S.L. coming out of the
bus and trying to obtain a lift from cars going in the direction of Montego
Bay. When she did not succeed, she re-entered the bus and left with the
author. At 1 a.m., a witness who knew the author saw him coming out of a
guest house, and pulling S.L. who was crying, into the minibus. Several
hours later, the author, covered in mud and blood, appeared at the bus
conductor's house. He said that the bus had been hijacked by three armed
men and that they had ordered him to drive into the countryside. When the
bus became stuck in the mud, he managed to escape; he further said that
he feared for S.L.'s life. The author and a few other people, followed by the
police, soon found the minibus and the body of S.L. was discovered in a
shallow grave nearby. She had died as a result of a head injury; a blood-
stained tool was found in the bus. The deceased's body also showed signs
of rape.

The author claims that his trial was unfair. He encloses two articles which
appeared in a well-known Jamaican newspaper, and submits that the
information given was prejudicial to his case. One of the articles, published
on 1 October 1983, informed Athat the author had pleaded guilty to
manslaughter in the case of the death of S.L., a 17-year-old school girl". It
further stated Athat some members of the judiciary felt that manslaughter
did not arise in a case of that nature", and summarized the prosecution's
case. The author points out that this article was published two days before
he appeared in court to be sentenced on the basis of his manslaughter
plea, and before the prosecution entered the nolle prosequi. The second
article, published on 4 October 1983, reported the proceedings of the
previous day, and, according to the author, in a way prejudicial to his
defence. The author that he had already pleaded guilty to manslaughter,
deprived him of the right to a fair trial before an independent and impartial
tribunal, contrary to article 14, paragraph 1, of the Covenant.

3.2 The author further claims that the publicity given to the proceedings
violated his right to be presumed innocent until proven guilty according to
law.

ISSUE:
article 6, paragraph 2, is said to have been violated, since the imposition of
a sentence of death upon conclusion of a trial in which the provisions of the
Covenant have not been respected constitutes, if no further appeal against
the sentence is available, a violation of this provision.

W/N THE COMMUNICATION IS ADMISSIBLE

RULING:

The Committee found that the entering of nolle prosequi by the prosecution
after the author had pleaded guilty to manslaughter and the publicity
connected thereto may have affected the presumption of innocence in the
author's case.

The Committee is of the opinion that the imposition of a sentence of death


upon conclusion of a trial in which the provisions of the Covenant have not
been respected constitutes, if no further appeal against the sentence is
possible, a violation of article 6 of the Covenant. As the Committee noted in
its General Comment 6[16], the provision that a sentence of death may be
imposed only in accordance with the law and not contrary to the provisions
of the Covenant implies that Athe procedural guarantees therein prescribed
must be observed, including the right to a fair hearing by an independent
tribunal, the presumption of innocence, the minimum guarantees for the
defence and the right to review of the conviction and sentence by a higher
tribunal". In the present case, since the final sentence of death was passed
without having observed the requirements of article 14, concerning fair trial
and presumption of innocence, it must be concluded that the right protected
by article 6 of the Covenant has been violated.
Hiber Conteris v. Uruguay, Communication No. 139/1983 (17 July
1985), U.N. Doc. Supp. No. 40 (A/40/40) at 196 (1985)

FACTS:

Mr. Conteris was arrested by the security police, allegedly without a warrant,
at Carrasco Airport, Montevideo, upon returning from a Christian Peace
Conference held in Brno, Czechoslovakia. He was taken to the intelligence
service headquarters in the city. Two weeks later when his family went to
these offices to bring him food, they were given his belongings and told that
he had been transferred to "an army establishment". This was the last they
heard of him for three months. On 4 March 1977, his daughter was allowed
to see him for 15 minutes under strict supervision. He was in a deplorable
physical condition and had lost 20 kilos in weight. His arms were scarred.
The family later learned that he had been moved between several military
establishments, including the most notorious centre known as "El Infierno" -
the 13th Armoured Infantry Battalion.

During this three-month period of detention, incommunicado, Mr. Conteris


was allegedly tortured. He was hanged by the wrists for 10 days and was
subjected to burnings and repeated "submarino" - immersing the head of
the victim in water fouled by blood, urine and vomit almost to the point of
drowning. Under these conditions of extreme ill-treatment Mr. Conteris was
forced to sign a confession that he had been an active guerrilla, taking part
in kidnapping and/or murder. Approximately four months after his arrest,
Mr. Conteris was taken to Libertad Prison.

The author also alleged that, since his arrest in 1976, Mr. Conteris was never
brought before a judge or granted a public hearing at which he could defend
himself. No judgement against him has ever been made public. It is also
alleged that Mr. Conteris had been detained for over two years before be
was informed of the charges against him. The date of Mr. Conteris' first trial
is unclear. He was convicted and sentenced in absentia by a military court
of the first instance, for "subverting the Constitution", "criminal and political
association", 'unlawful entry" and "kidnapping". Although a civilian, he was
tried by a military court under the Law of National Security enacted in 1972
because he was charged with subversive activities.
Mr. Conteris was assigned "legal counsel" (abogado de oficio), designated
by the military as Dr. Alcimar Perera. a/ Mr. Conteris never saw Dr. Perera
before the trial. It was only after the proceedings that Mr. Conteris had a brief
meeting with him. Mr. Conteris never heard from him again. Mr. Conteris
submitted his own statement to the military court of first instance but this
statement was ignored and not included in the record. He was sentenced to
15 years' imprisonment and in addition to one to five years precautionary
detention (medidas de seguridad eliminativas). Without the assistance of
legal counsel, he appealed against the decision of the court of first instance
to the Supreme Military Tribunal in August 1980.

A case concerning Mr. Conteris, which had been submitted to the Inter-
American Commission on Human Rights (IACHR) by an unrelated third
party, was withdrawn at the request of the Conteris family dated 12 May
1983.
ISSUE:

RULING:

When considering the admissibility of the communication, the Committee


found that it was not precluded by article 5, paragraph 2 (a), of the Optional
Protocol from considering the communication, because the case before
IACHR was submitted by an unrelated third party and in any event was
withdrawn at the request of the Conteris family.

The Committee observes in this connection that the author of the


communication has submitted detailed allegations of ill-treatment and that
the State party has adduced no evidence that these allegations have been
duly investigated.

The Committee also observes that the author has made detailed allegations
that Hiber Conteris was denied judicial guarantees set out in a number of
provisions of article 14 of the Covenant.

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 disclose violations
of the Covenant, in particular:
- of article 7, because of the severe ill-treatment which Hiber Conteris
suffered during the first three months of detention and the harsh and, at
times, degrading conditions of his detention since then;

- of article 9, paragraph 1, because the manner in which he was arrested


and detained, without a warrant, constitutes an arbitrary arrest and
detention, irrespective of the charges which were subsequently laid against
him;

- of article 9, paragraph 2, because he was not informed of the charges


against him for over two years;

- of article 9, paragraph 3, because he was not brought promptly before a


judge and because he was not tried within a reasonable time;

- of article 9, paragraph 4, because he had no opportunity to challenge his


detention;

- of article 10, paragraph 1, because he was held incommunicado for over


three months;

- of article 14, paragraph 1, because he had no fair and public hearing;

- of article 14, paragraph 3 (b), because he had no effective access to legal


counsel for the preparation of his defence;

- of article 14, paragraph 3 (c), because he was not tried without undue
delay;

- of article 14, paragraph 3 (d), because he was not tried in his presence
and could not defend himself in person or through legal counsel of his own
choosing;

- of article 14, paragraph 3 (g), because he was forced by means of torture


to confess guilt.

11.1 The Committee, accordingly, is of the view that the State party is
under an obligation to take effective measures to remedy the violations
which Mr. Hiber Conteris has suffered and to grant him compensation.
Chitat Ng v. Canada, Communication No. 469/1991, U.N. Doc.
CCPR/C/49/D/469/1991 (1994).

FACTS:

The author was arrested, charged and convicted, in 1985, in Calgary,


Alberta, following an attempted store theft and shooting of a security guard.
In February 1987, the United States formally requested the author's
extradition to stand trial in California on 19 criminal counts, including
kidnapping and 12 murders, committed in 1984 and 1985. If convicted, the
author could face the death penalty.

2.2 In November 1988, a judge of the Alberta Court of Queen's Bench


ordered the author's extradition.

Article 6 of the Extradition Treaty between Canada and the United States
provides:

"When the offence for which extradition is requested is punishable by death


under the laws of the requesting State and the laws of the requested State
do not permit such punishment for that offence, extradition may be refused
unless the requesting State provides such assurances as the requested
State considers sufficient that the death penalty shall not be imposed or, if
imposed, shall not be executed."

Canada abolished the death penalty in 1976, except for certain military
offences.

The power to seek assurances that the death penalty will not be imposed is
discretionary, and is conferred on the Minister of Justice pursuant to
section 25 of the Extradition Act.

The author subsequently filed an application for review of the Minister's


decision with the Federal Court. On 8 June 1990, the issues in the case
were referred to the Supreme Court of Canada, which rendered judgement
on 26 September 1991. It found that the author's extradition without
assurances as to the imposition of the death penalty did not contravene
Canada's constitutional protection for human rights nor the standards of the
international community. The author was extradited on the same day.
He submits that the execution of the death sentence by gas asphyxiation,
as provided for under California statutes, constitutes cruel and inhuman
treatment or punishment per se, and that the conditions on death row are
cruel, inhuman and degrading. He further alleges that the judicial
procedures in California, in as much as they relate specifically to capital
punishment, do not meet basic requirements of justice. In this context, the
author alleges that in the United States racial bias influences the imposition
of the death penalty.

The State party submits that the communication is inadmissible ratione


personae, loci and materiae.

ISSUE:

W/N the decision to extradite him violates articles 6, 7, 9, 10, 14 and 26 of


the Covenant.

RULING:

the Committee considered the admissibility of the communication.

The Committee noted that the author does not claim that extradition as
such violates the Covenant, but rather that the particular circumstances
related to the effects of his extradition would raise issues under specific
provisions of the Covenant. Accordingly, the Committee found that the
communication was thus not excluded ratione materiae.

The Committee considered the contention of the State party that the claim
is inadmissible ratione loci. Article 2 of the Covenant requires States
parties to guarantee the rights of persons within their jurisdiction. If a
person is lawfully expelled or extradited, the State party concerned will not
generally have responsibility under the Covenant for any violations of that
person's rights that may later occur in the other jurisdiction. In that sense a
State party clearly is not required to guarantee the rights of persons within
another jurisdiction. However, if a State party takes a decision relating to a
person within its jurisdiction, and the necessary and foreseeable
consequence is that this person's rights under the Covenant will be violated
in another jurisdiction, the State party itself may be in violation of the
Covenant.
the Committee concludes that execution by gas asphyxiation, should the
death penalty be imposed on the author, would not meet the test of "least
possible physical and mental suffering", and constitutes cruel and inhuman
treatment, in violation of article 7 of the Covenant. Accordingly, Canada,
which could reasonably foresee that Mr. Ng, if sentenced to death, would
be executed in a way that amounts to a violation of article 7, failed to
comply with its obligations under the Covenant, by extraditing Mr. Ng
without having sought and received assurances that he would not be
executed.

The Human Rights Committee, acting under article 5, paragraph 4, of the


International Covenant on Civil and Political Rights, is of the view that the
facts as found by the Committee reveal a violation by Canada of article 7 of
the Covenant.

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