Aadel Collection
Decisions adopted by the Working Group on Arbitrary Detention
UNITED
NATIONS
E
Economic and Social Distr.
GENERAL
Council
E/CN. 4/1995/31/Add.2
18 November 1994
ENGLISH
Original: ENGLISH/FRENCH/SPANISH
COMMISSION ON HUMAN RIGHTS
Fifty-first session
Item 10 of the provisional agenda
QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED
TO ANY FORM OF DETENTION OR IMPRISONMENT
Decisions adopted by the Working Group on Arbitrary Detention
The present document contains several decisions adopted by the Working
Group on Arbitrary Detention at its tenth session, held in September 1994.
All statistical data concerning these decisions are included in the Working
Group's report to the Commission on Human Rights at its fifty-first session
(E/cN.4/1995/31, Annex III).
GE.94-14843 (E)
E/CN. 4/1995/31/Add.2
page 2
CONTENTS
Page
Decision No. 10/1994
Decision No. 11/1994
Decision No. 12/1994
Decision No. 13/1994
Decision No. 14/1994
Decision No. 15/1994
Decision No. 16/1994
Decision No. 17/1994
Decision No. 18/1994
Decision No. 19/1994
Decision No. 20/1994
Decision No. 21/1994
Decision No. 22/1994
Decision No. 23/1994
Decision No. 24/1994
Decision No. 25/1994
Decision No. 26/1994
Decision No. 27/1994
Decision No. 28/1994
Decision No. 29/1994
Decision No. 30/1994
Decision No. 31/1994
Decision No. 32/1994
Decision No
(Tunisia) 3
(Tunisia) S
(Tunisia) 7
(Myanmar) 9
(Mali) 12
(South Africa) 14
(Israel) 16
(Peru) 20
(Peru) 21
(Brazil) 22
(Mexico) 24
(Peru) 26
(Peru) 29
(Peru) 32
(Peru) 35
(Peru) 37
(Colombia) 39
(Tajikistan) 42
(Islamic Republic of Iran) 44
(Republic of Korea) 46
(Republic of Korea) 48
(Indonesia) 51
(Indonesia) 53
33/1994 (Tunisia) S E
Interim Decision No
34/1994 (Indonesia)
57
E/CN.4/1995/31/Add. 2
page 3
Decision No. 10/1994 (Tunisia)
Communication addressed to the Government of Tunisia on
22 April 1994.
Concerning : Abderrahmane El Hani, on the one hand, and the
Republic of Tunisia, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it, and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with appreciation the information forwarded by
the Government concerned in respect of the case in question within 90 days of
the transmittal of the letter by the Working Group.
3. With a view to taking a decision the Working Group considers if the cases
in question fall into one or more of the following three categories:
I. Cases in which the deprivation of freedom is arbitrary, as it
manifestly cannot be linked to any legal basis (such as continued
detention beyond the execution of the sentence or despite an
amnesty act, etc.) ; or
II. Cases of deprivation of freedom when the facts giving rise to the
prosecution or conviction concern the exercise of the rights and
freedoms protected by articles 7, 13, 14, 18, 19, 20 and 21 of the
Universal Declaration of Human Rights and articles 12, 18, 19, 21,
22, 25, 26 and 27 of the International Covenant on Civil and
Political Rights; or
III. Cases in which non-observance of all or part of the international
provisions relating to the right to a fair trial is such that it
confers on the deprivation of freedom, of whatever kind, an
arbitrary character.
4. In the light of the allegations made, the Working Group welcomes the
cooperation of the Government of Tunisia. The Working Group believes that it
is in a position to take a decision on the facts and circumstances of the
case, in the context of the allegations made, the Government's reply and the
comments made by the source.
5. According to the source, Abderrahmane El Hani, a lawyer, was arrested on
15 February 1994, although he had declared himself a candidate for the
presidency of the Republic, and charged with maintaining an illicit
association and disseminating false news, and then kept in custody pending
trial.
6. In its reply, the Government confirms the nature of the proceedings,
explaining that the first offence relates to the maintenance of a
non-recognized party (Act of 3 May 1982, arts. 8 and 26) and that the second
E/CN. 4/1995/31/Add.2
page 4
involves violation of articles 50 and 51 of the Press Code, which forbid the
“dissemination of false news liable to disturb public order”. It adds that
the charges against Abderrahmane El Hani have nothing to do with “the
allegations that he had declared himself a candidate for the presidency of the
Republic”. Finally, it states, which the source does not deny, that he was
released on 23 April 1994 pending trial (after being in custody for 72 days)
7. The Working Group, having considered the available information, is of the
opinion that in the case in question no special circumstances would warrant
its considering the nature of the detention of the person released.
8. The Working Group, without prejudging the nature of the detention,
decides to file the case of Mr. Abderrahmane El Hani under the terms of
paragraph 14 (a) of its methods of work.
Adopted on 27 September 1994.
E/CN.4/1995/31/Add. 2
page 5
Decision No. 11/1994 (Tunisia)
Communication addressed to the Government of Tunisia on
22 April 1994.
Concerning : Moncef Marzouk, on the one hand, and the Republic of
Tunisia, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it, and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with appreciation the information forwarded by
the Government concerned in respect of the case in question within 90 days of
the transmittal of the letter by the Working Group.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made, the Working Group welcomes the
cooperation of the Government of Tunisia. The Working Group forwarded the
Tunisian Government's reply to the source of the information, which submitted
its comments on 4 August 1994. The Working Group believes that it is in a
position to take a decision on the facts and circumstances of the case, in the
context of the allegations made, the Government's reply and the comments made
by the source.
5. According to the source, Moncef Marzouk, former President of the Tunisian
Human Rights League, was arrested on 24 March 1994 and charged with
“dissemination of false news liable to disturb public order and defamation of
the judicial order” under articles 50 and 51 of the Press Code. In support of
these charges, the Prosecutor produced an interview published in a Spanish
newspaper. The accused contested the facts.
6. In its reply, the Government points out that, the facts having been
established through the judicial procedure, Moncef Marzouk was released on
30 July 1994, i.e. after 110 days in custody, and discharged in the following
circumstances:
(a) Contesting the source's allegations, the Government considers that
it is inaccurate to suggest that Moncef Marzouk had denied the facts, inasmuch
as it was established that he had in fact made statements to foreign
journalists, but that one of them, from the newspaper Diario 16 , might have
distorted what he had said;
(b) This hypothesis proved in the end to be true, the newspaper having
published on 13 May 1994 an article stating that “an unfortunate error crept
into the interview with Moncef Marzouk, owing to the need to translate from
English into French, and then from French into Spanish”;
E/CN. 4/1995/31/Add.2
page 6
(c) Against this background, the lawyer, after sending a complaint to
the newspaper on behalf of his client, handed the judge a copy of the
correction published in return by the newspaper. The judge accordingly
dismissed the case.
7. In the light of the above, the Working Group decides as follows:
The Working Group notes the release of Moncef Marzouk with
satisfaction. Nevertheless, in accordance with its methods of work, the
Group decides that the detention of Moncef Marzouk for 110 days was
arbitrary, being in contravention of article 19 of the Universal
Declaration of Human Rights and article 19 of the International Covenant
on Civil and Political Rights and falling within category II of the
principles applicable in the consideration of the cases submitted to the
Working Group.
8. In consequence of the decision of the Working Group declaring the
detention of Moncef Marzouk to be arbitrary, and taking into account the fact
that he has been released, the Working Group requests the Government of
Tunisia to take the necessary steps to remedy the situation in order to bring
it into conformity with the provisions and principles contained in the
Universal Declaration of Human Rights and in the International Covenant on
Civil and Political Rights.
Adopted on 28 September 1994.
E/CN.4/1995/31/Add. 2
page 7
Decision No. 12/1994 (Tunisia)
Communication addressed to the Government of Tunisia on
22 April 1994.
Concerning : Ahmed Khalaoui, on the one hand, and the Republic of
Tunisia, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it, and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with appreciation the information forwarded by
the Government concerned in respect of the case in question within 90 days of
the transmittal of the letter by the Working Group.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made, the Working Group welcomes the
cooperation of the Government of Tunisia. The Working Group forwarded the
Tunisian Government's reply to the source of the information, which sent its
comments on 4 August 1994. The Working Group believes that it is in a
position to take a decision on the facts and circumstances of the case, in the
context of the allegations made, the Government's reply and the comments made
by the source.
S. According to the source, Ahmed Khalaoui, aged SO, teacher and trade
unionist, was arrested on 4 March 1994 and accused of illicit distribution of
leaflets (condemning the Hebron massacre) , whereas he was peacefully
exercising his right to freedom of opinion and expression. His application
for release was rejected, and he is said to have been held in Tunis prison
since 8 April 1994.
6. The Government, which confirms the date and circumstances of the arrest,
gives the following explanations:
The leaflets, which the author produced at home, called for confrontation
with all Jews, both in Tunisia and in other Arab countries, and a boycott of
all conferences and scientific meetings attended by them.
He also advocated that there should be no economic or political dealings
with Jews, stressing particularly the need for the Tunisian people to harass
the Jewish community in Djerba.
It was in these circumstances that he appeared before the Tunis
Correctional Court on 8 March 1994 for incitement of hatred between races,
religions and peoples and for publication of leaflets liable to disturb public
order.
E/CN. 4/1995/31/Add.2
page 8
After a series of postponements to 24 March, 31 March and 14 April, he
was finally tried on 27 June 1994 and sentenced to two years' imprisonment and
a fine of 1,000 dinars for incitement to racial hatred (Criminal Code,
art. 52 bis) and to eight months' imprisonment for publication of leaflets and
a fine of 100 dinars for violation of the provisions concerning statutory
deposit (Press Code, arts. 12, 44 and 62)
7. In its comments on the Government's reply, received by the Working Group
on 4 August 1994, the source expresses the view that “Ahmed Khalaoui is a
political prisoner” and requests that he should be given a quick and fair
trial “in accordance with the rules of international law”
8. In view of the foregoing, the Working Group considers, on the basis of
the position adopted by the Human Rights Committee on 6 April 1983
(request 10/1981, JRT and WG. Party C. Canada), that the restrictions placed
by Tunisian law on freedom of opinion in order to combat the dissemination of
racist ideas or remarks - violently anti-semitic in the case in question - are
compatible with the rules of international law, and in particular with
articles 19 and 20 of the International Covenant on Civil and Political
Rights, according to which:
Article 19, paragraph 3: “The exercise of the rights provided for in
paragraph 2 of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions,
but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order
( ordre public) , or of public health or morals.”
“Article 20, paragraph 2: “Any advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility or
violence shall be prohibited by law.”
9. In the light of the above, the Working Group decides as follows:
The detention of Ahmed Khalaoui does not fall into any of the three
categories of the principles applicable in the consideration of the cases
submitted to the Working Group, and in particular category II, inasmuch
as incitement to racial hatred is an offence and not the expression of an
opinion. The detention of Ahmed Khalaoui is accordingly declared not to
be arbitrary.
Adopted on 28 September 1994.
E/CN.4/1995/31/Add. 2
page 9
Decision No. 13/1994 (Myanmar)
Communication addressed to the Government of Myanmar
on 22 April 1994.
Concerning : Dr. Ma Thida, Dr. Aung Khint Sint, Moe Tin and
Kyaing Ohn, on the one hand, and the Union of Myanmar, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with appreciation the information forwarded by
the Government concerned in respect of the cases in question within 90 days of
the transmittal of the letter by the Working Group.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made the Working Group welcomes the
cooperation of the Government of Myanmar. The Working Group transmitted the
reply provided by the Government to the source and the latter has provided the
Working Group with its comments. The Working Group believes that it is in a
position to take a decision on the facts and circumstances of the cases, in
the context of the allegations made and the response of the Government
thereto, as well as the comments by the source.
S. In rendering its decision, the Working Group, in a spirit of cooperation
and coordination, has also taken into account the report of the Special
Rapporteur of the Commission on Human Rights, Mr. Yokota, pursuant to
Commission resolution 1992/58.
6. According to the communication, a summary of which has been transmitted
to the Government:
(a) Dr. Ma Thida, aged 27, a female short-story writer and member of
the opposition National League for Democracy and Dr. Aung Khint Sint, a doctor
who has written on medical issues and an NLD MP were allegedly arrested on
7 and 3 August 1993, respectively, on charges under the Emergency Powers Act,
and are being detained in Insein Prison in Rangoon. According to the source
Dr. Ma Thida was convicted of endangering public tranquillity, of having
contact with unlawful associations, and distributing unlawful literature. It
was reported that Dr. Ma Thida and Dr. Aung Khint Sint were both sentenced on
15 October 1993 to 20 years in prison each. According to the source, precise
details of the evidence used to convict them were not available. It was also
reported that in the Insein Prison conditions are poor and a number of
political prisoners have died from lack of medical attention.
(b) Moe Tin, journalist and poet as well as the literary advisor of
Aung San Suu Kyi with the National League for Democracy, was allegedly
E/CN. 4/1995/31/Add.2
page 10
arrested in December 1991 and was believed to be detained in prison.
According to the source he was detained solely because of his opinions. He
was sentenced to four years in prison in July 1992.
(c) Kyaing Ohn, a former collaborator of “Bot athung” and member of the
National League for Democracy and an elected member of parliament, was
allegedly arrested in 1990 and was believed to be detained in prison.
According to the source, the detainee was accused of being linked with the
National League for Democracy. It was reported that he was sentenced
to seven years hard labour on 17 October 1990.
7. In its reply, the Government of Myanmar, while citing a different
sentence for Ohn Kyaing from that provided by the source, holds that none of
the persons in question has been arbitrarily detained. They were all
convicted, following perfectly legal actions and a proper trial, under
section 5 (j) of the Emergency Provisions Act for having broken the law, in
particular, either by reproducing or distributing seditious books and
pamphlets published by terrorist groups with the aim of creating unease and
bringing the Government and the armed forces into discredit (in the case of
Ma Thida and Ohn Kyaing) , or (in the case of Tin Moe) by printing literature
directed against the Government and the army in the magazine Pay Hpoo Hlwar ,
of which he was the editor. However, it will be noted that according to the
Government of Myanmar, in addition to the term of 7 years' imprisonment,
Ohn Kyaing was also sentenced to 10 years' imprisonment at a later trial for
involvement in the drafting, by the National League for Democracy (the
opposition) , of a leaflet entitled “The three paths to power”. In the case of
Dr. Aung Khint Sint, the Government merely states that he was prosecuted and
tried by a civil court, which found him guilty without giving further details,
and that it consequently considers that a judgement made by a court legally
constituted in a State Member of the United Nations should not be called into
question on the pretext of investigating arbitrary detention.
8. As can be seen, and as regards the substance of the matter, the
Government of Myanmar does not deny that the detention of the above-mentioned
persons is connected solely with their activities in opposing the current
regime in that country, and there is nothing to indicate that in taking those
actions they resorted to or incited violence. What they are ultimately
accused of is having freely and peacefully exercised their right to freedom of
opinion and expression guaranteed under article 19 of the Universal
Declaration of Human Rights and article 19 of the International Covenant on
Civil and Political Rights. It is no accident that the Working Group has
already had occasion to note in its earlier decisions (59/1992 Nay Mm,
38/1993 Win Tin and seven others) that it was emergency legislative
provisions, and particularly section 5 (j), which were cited against them, as
occurs each time that proceedings are instituted against members of
Parliament, political leaders, writers, journalists and so on.
9. In the light of the above the Working Group decides:
The detention of the above-mentioned persons, is declared to be
arbitrary being in contravention of article 19 of the Universal
Declaration of Human Rights, and article 19 of the International Covenant
E/CN.4/1995/31/Add. 2
page 11
on Civil and Political Rights and falling within category II of the
principles applicable in the consideration of the cases submitted to the
Working Group.
10. Consequent upon the decision of the Working Group declaring the detention
of Dr. Ma Thida, Dr. Aung Khint Sint, Moe Tin et Kyaing Ohn to be arbitrary,
the Working Group requests the Government of Myanmar to take the necessary
steps to remedy the situation in order to bring it into conformity with the
provisions and principles incorporated in the Universal Declaration of Human
Rights and in the International Covenant on Civil and Political Rights.
Adopted on 28 September 1994.
E/CN. 4/1995/31/Add.2
page 12
Decision No. 14/1994 (Mali)
Communication addressed to the Government of Mali on
22 April 1994.
Concerning : Major Lamine Diabira, Lieutenant Fadio Sinayogo,
Warrant Officer Class 1 Kaka Koureissy, Sergeant Bo Dabo,
Lieutenant Amadou Diallo, Lieutenant Mamadou Zoumana Konaté,
Staff Sergeant Baba Traoré and Sergeant N'Golo Diarra, on the one hand,
and the Republic of Mali, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it, and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with concern that to date no information has been
forwarded by the Government concerned in respect of the cases in question.
With the expiration of more than 90 days since the transmittal of the letter
by the Working Group, it is left with no option but to proceed to render its
decision in respect of the cases of alleged arbitrary detention brought to its
knowledge.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made, the Working Group would have
welcomed the cooperation of the Government of Mali. In the absence of any
information from the Government, the Working Group believes that it is in a
position to take a decision on the facts and circumstances of the case,
especially since the facts and allegations contained in the communication have
not been challenged by the Government.
5. According to the communication from the source, a summary of which was
transmitted to the Government, Major Lamine Diabira, a former Minister of
Territorial Administration in the Transitional Government of
Lieutenant Colonel Amadou Toumani Touré, was arrested on the night
of 14-15 July 1991 and accused of plotting a coup d'etat . The other soldiers
mentioned above were arrested at the same time, or shortly afterwards, on the
grounds that they were implicated in the same failed coup. After being
arrested, some of them were taken to Djikoroni paratroop base near Bamako,
while others were taken to Ségon military base, where they were kept
incommunicado and without being charged for nearly six months (although under
Malian law they ought to have been brought before the judicial authorities
within 48 hours of their arrest) . In June 1993, Major Lamine Diabira and the
other soldiers were charged under articles 41 and 42 of the Malian Criminal
Code, with conspiracy and attempting to overthrow the Government.
6. From the facts reported above, it can be said that the persons in
question were held without charge, and for six months incommunicado, from
their arrest in July 1991 until June 1993, when they were officially notified
of a charge of conspiracy and attempt to overthrow the Government. Their
detention is thus evidently arbitrary, since it violated article 9 of the
E/CN.4/1995/31/Add. 2
page 13
Universal Declaration of Human Rights, article 14.3 (a), (b) and (c) of the
International Covenant on Civil and Political Rights, to which the Republic
of Mali is a party, and Principles 11 and 18 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment.
7. In the light of the above, the Working Group decides as follows:
The detention of the above-mentioned persons from their arrest to
the date on which they were charged in June 1993 is declared to be
arbitrary, being in contravention of article 9 of the Universal
Declaration of Human Rights, article 14.3 (a), (b) and (c) of the
International Covenant on Civil and Political Rights, to which the
Republic of Mali is a party, and accordingly falling within category III
of the principles applicable in the consideration of the cases submitted
to the Working Group. With regard to their detention beyond that period,
the Working Group has not had enough information from the Government or
the source to be able to take a decision as to whether it is arbitrary or
not.
8. Having declared the detention of the persons in question to be arbitrary,
the Working Group requests the Government of Mali to take the necessary steps
to remedy the situation in order to bring it into conformity with the rules
and principles contained in the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights.
Adopted on 28 September 1994.
E/CN. 4/1995/31/Add.2
page 14
Decision No. 15/1994 (South Africa)
Communication addressed to the Government of South Africa
on 22 April 1994.
Concerning : Nathaniel Ngakantsi and Johannes Setlae, on the one
hand, and the Republic of South Africa, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with concern that to date no information has been
forwarded by the Government concerned in respect of the cases in question.
With the expiration of more than ninety (90) days from the transmittal of the
letter by the Working Group, it is left with no option but to proceed to
render its decision in respect of the cases of alleged arbitrary detention
brought to its knowledge.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made, the Working Group would have
welcomed the cooperation of the Government of South Africa. In the absence of
any information from the Government, the Working Group believes that it is in
a position to take a decision on the facts and circumstances of the cases,
especially since the facts and allegations contained in the communication have
not been challenged by the Government.
5. According to the communication, a summary of which has been transmitted
to the Government:
(a) Nathaniel Ngakantsi, executive member of the African National
Congress, was allegedly arrested without charge in Bophuthatswana and had been
held in incommunicado detention following his arrest on 31 December 1993.
According to the source, the detention is part of a pattern of harassment of
non-violent political activists involved in voter education work prior to
South Africa's first non-racial elections in April 1994. It was reported that
the lawyers for the detainee were informed by the police that the detainee
would appear at the magistrates' court on the morning of 5 January 1994, but
his lawyers failed to find him that morning. However, they were informed that
the detainee had made a confession to the magistrate the previous day. The
police apparently left the court shortly thereafter with the detainee, who in
fact had not made a statement to the magistrate. It was reported that
Nathaniel Ngakantsi was being held under the terms of Section 25 of
Bophuthatswana's Internal Security Act which allows police to hold a detainee
for at least 14 days or for a further period of up to 90 days with higher
authorization. The police have the right to deny lawyers or anyone else
access to the detainee.
(b) Johannes Setlae, aged 26, member of the African National Congress,
was reportedly arrested by the Bophuthatswana police on 12 January 1994. He
E/CN.4/1995/31/Add. 2
page 15
was believed to be detained incommunicado at Mmabatho police station under
Section 25 of Boputhatswana's Internal Security Act. According to the source
Johannes Setlae was detained after the police broke up a voter education
meeting arranged by the members of the local ANC youth league. One policeman
reportedly hit the mother of Ofentse Kogotsitse, the local president of the
south league and she fell down. This apparently prompted Johannes Setlae to
throw an empty bottle at the police. Then Johannes was reportedly assaulted
and arrested by the police. According to the source his lawyer had been
denied so far the right to visit him and no information was available about
his state of health following his alleged beatings. The source expressed
fears the he may be denied proper medical care and may be further assaulted
while he remained in incommunicado detention. The concerns were increased by
a report that, earlier on 12 January, the Bophuthatswana security police
threatened to “eliminate” one of the meeting organizers and others involved in
political activities.
6. The facts set out above show that the detention of Nathaniel Ngakantsi
and Johannes Setlae is based solely on that fact that as non-violent political
activists and members of ANC, they had become involved in voter education work
leading up to the first non-racial elections in South Africa in April 1994,
whereas these actions constituted no more than the free and peaceful exercise
of their right to freedom of opinion, expression and assembly. To this is
added the fact that no charges have been brought against them since their
arrest, apparently under section 25 of the Bophuthatswana Internal Security
Act, authorizing the police to deny lawyers and all other persons access to
those under arrest. Lastly, it will be noted that, according to the source,
pressure has been brought to bear on Nathaniel Ngakantsi to prompt him to
confess, and that the state of health of Johannes Setlae, who was ill-treated
by the police at the time of his arrest, offers grounds for serious concern,
the more so since, having been held incommunicado, he has never been able to
receive appropriate care.
7. In the light of the above the Working Group decides:
The detention of Nathaniel Ngakantsi and Johannes Setlae is
declared to be arbitrary being in contravention of articles 19 and 20 of
the Universal Declaration of Human Rights, and articles 14-3 (a) , (b)
and (c) , 19 and 21 of the International Covenant on Civil and Political
Rights and falling within categories II and III of the principles
applicable in the consideration of the cases submitted to the Working
Group.
8. Consequent upon the decision of the Working Group declaring the detention
of Nathaniel Ngakantsi and Johannes Setlae to be arbitrary, the Working Group
requests the popular Government now in place since April 1994, to take note of
this decision, in the light of the fact that the detentions occurred prior to
the formation of the popular Government, and take such appropriate steps as it
considers necessary to remedy the situation in order to bring it into
conformity with the provisions and principles incorporated in the Universal
Declaration of Human Rights and in the International Covenant on Civil and
Political Rights.
Adopted on 28 September 1994.
E/CN. 4/1995/31/Add.2
page 16
Decision No. 16/1994 (Israel)
Communication addressed to the Government of Israel on
18 July 1994.
Concerning : Sha'ban Rateb Jabarin, on the one hand, and the State
of Israel, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with appreciation the information forwarded by
the Government concerned in respect of the case in question within 90 days of
the transmittal of the letter by the Working Group.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. The Working Group welcomes the cooperation of the Government of Israel
which forwarded its response to the allegations made concerning
Sha'ban Rateb Jabarin. The Working Group transmitted the response of the
Government to the source. The latter provided the Working Group with its
comments. The Working Group believes that it is in a position to take a
decision in the facts and circumstances of the case, in the context of the
allegations made and the response of the Government thereto.
S. Certain pertinent facts may be stated. As far back as 7 July 1992 the
Chairman of the Working Group had sent an urgent appeal to the Minister for
Foreign Affairs of Israel following which Mr. Jabarin was released
on 10 July 1992. Later, he was again arrested and detained without charge.
On 4 May 1994 a letter was addressed by the Chairman of the Working Group to
the Permanent Representative of Israel to the United Nations office at Geneva.
The office of the Permanent Representative later informed the Working Group
that Mr. Jabarin was released from administrative detention on S May 1994.
Since he was again allegedly detained on 21 June 1994 yet another
communication was addressed by the Chairman of the Working Group to the
Minister for Foreign Affairs for information concerning his situation and the
legal basis of his detention. In the said communication an appeal was also
made to the Government of Israel, in a purely humanitarian spirit, to consider
Mr. Jabarin's release from prison and for the Government to do its utmost to
guarantee Jabarin's right to liberty and security.
6. The source describes Sha'ban Rateb Jabarin as a Palestinian para-legal
and human rights activist. He was allegedly arrested without a warrant
on 10 March 1994 by the IDF or the GSS. The arresting authorities allegedly
searched the detainees' house for 40 minutes prior to his arrest, without
informing him of the reasons for his arrest. Apparently pursuant to Military
Order 378, six months' administrative detention was imposed on Mr. Jabarin.
Date of the issuance of the order remains undisclosed. Without being charged
with any offence Mr. Jabarin was initially, allegedly, detained at the Hebron
Central Prison whereafter he was transferred to the Juneid Central prison in
E/CN.4/1995/31/Add. 2
page 17
Nablus. The source alleges that the reason for his detention was his alleged
involvement in the writing of a publication dated December 1993 on violence by
Jewish settlers in the Hebron area. The source also alleged that no judicial
or other procedures exist to challenge the legality of the arrest or detention
as military courts refuse to hear judicial proceedings in the nature of
habeas corpus or amparo. Regarding a detainee making an appeal against the
order to an Appeal's Committee, it was alleged that relevant rules of evidence
and Procedure, and the restrictions on the powers of the Appeal's Committee it
was difficult to effectively challenge the order. It was alleged that such
orders were rarely set aside in appeal. The source maintained that
Mr. Jabarin was detained for his non-violent activities in the exercise of
his right to freedom of expression and opinion.
7. In response to the communication of the Working Group dated 4 May 1994,
the Government on 26 May 1994 informed the Working Group that Mr. Jabarin
stood already released. Apparently he had been released on 8 May 1994. As he
was again detained on 21 June 1994, the Working Group sent its communication
of 18 July 1994 to which the Government sent its response on 3 August 1994.
In this response the Working Group was informed that Mr. Jabarin was held in
administrative detention from 10 March 1994 until 8 May 1994. The Government
strongly denied that Mr. Jabarin was an innocent man, devoting his efforts to
al-Haq, an organization which is engaged in the field of human rights. The
Government stated that Mr. Jabarin had never been detained for his work with
al-Haq. According to the Government Mr. Jabarin has been for many years a
senior member of the Popular Front for the Liberation of Palestine (PFLP), a
terrorist organisation committed to using violence in order to bring about the
destruction of the State of Israel. The Government also maintained that since
the Israeli-Palestinian Declaration of Principles was signed in
September 1993, PFLP's declared objective has been to derail the peace process
by acts of terror. The Government is allegedly in possession of substantial
evidence to the effect that, in his capacity as a senior operative of the PFLP
Mr. Jabarin has been and continues to be connected with the violent activities
of the PFLP.
8. Yet Mr. Jabarin has never been brought to trial. It is alleged that
since 1979. Mr. Jabarin has been detained seven times for his alleged
terrorist activities. Failure to bring him to trial on six of the seven
occasions, the Government explains, is its concern for the lives and welfare
of several of the material witnesses. For this reason Mr. Jabarin has been
periodically and for a limited period of time been under administrative
detention. In doing so, the Government seeks to exercise its legal rights
under article 78 of the Fourth Geneva Convention and article 87 of the
Security Provisions Order 1970. Once, however, in 1985, Mr. Jabarin was
brought to trial without endangering witnesses. He was apparently convicted
for recruiting new members for the PFLP and for arranging guerilla training
outside of Israel. He was apparently sentenced to 24 months' imprisonment,
9 months of which were served and 15 months suspended.
9. The Government contended that Mr. Jabarin has not discontinued his
terrorist involvement and maintains his position in the leadership of the
PFLP. The Government admits that he was arrested on 21 June 1994 and was
E/CN. 4/1995/31/Add.2
page 18
placed in administrative detention for six months. He cannot be brought to
trial as that would, the Government maintains, endanger the safety of material
witnesses were they to give evidence.
10. The source was given an opportunity to respond to the Government's
letter, which it did on 11 August 1994. The source took the position that
Israel had chosen to criminalize membership of the PFLP, a Palestinian
political party; that for charging Mr. Jabarin for criminal activities the
Government is obliged to bring him to trial. The source also questions the
applicability of Article 78 of the Fourth Geneva Convention as a means to
justify Mr. Jabarin's administrative detention. Article 87 of the Security
Provisions Order is also inapplicable according to the source, as it can be
used only as a preventive measure and not for acts which constitute breaches
of law.
11. From the above it clearly emerges that the Israeli Government has chosen
to detain Mr. Jabarin only because it considers it inadvisable to bring him to
trial for fear that the lives of material witnesses will in the process of
giving evidence, be endangered. Individual liberty cannot be sacrificed for
the Government's inability either to collect evidence or to present it in an
appropriate form. On its own showing the Government had in the past as also
on 21 June 1994, in placing Mr. Jabarin under administrative detention, did
not do it as a preventive measure. Such exercise of power is colourable: not
for the purpose intended.
12. The issue becomes all the more significant as the source has not
traversed the allegation of the Government that the PFLP is a terrorist
organisation, committed to using violence in order to bring about the
destruction of the State of Israel. If that be so and if the Government is in
possession of substantial evidence of Mr. Jabarin's involvement in terrorist
activities, the Government is obliged to charge and bring Mr. Jabarin to trial
in the event it chooses to arrest him. The Government cannot be allowed to
use the power of administrative detention to achieve the purposes that it
wishes to achieve, without a formal trial. In this fashion the exercise of
the power of administrative detention is not preventive but punitive.
Reliance by the Government on article 78 of the Fourth Geneva Convention and
article 87 of the Security Provisions Order is also unjustified. The latter
can only be used as a preventive measure, not for committing an offence for
which a person can be charged and tried. As far as the provisions of the
Fourth Geneva Convention are concerned, article 6 provides that in case of
Occupied Territories, the applicability of many provisions of the Convention,
including article 78, ceases one year after the general close of military
operations. Thus article 78 cannot provide a justification for Mr. Jabarin's
administrative detention.
13. In the light of the above the Working Group decides:
The detention of Mr. Sha'ban Rateb Jabarin on all previous
occasions when he was not brought to trial and since 21 June 1994 is
declared to be arbitrary being in contravention of articles 9 and 10 of
the Universal Declaration of Human Rights, and articles 9 and 14 of the
E/CN.4/1995/31/Add. 2
page 19
International Covenant on Civil and Political Rights and falling within
category III of the principles applicable in the consideration of the
cases submitted to the Working Group.
14. Consequent upon the decision of the Working Group declaring the detention
of Mr. Jabarin to be arbitrary, the Working Group requests the Government of
Israel take the necessary steps to remedy the situation in order to bring it
into conformity with the provisions and principles incorporated in the
Universal Declaration of Human Rights and in the International Covenant on
Civil and Political Rights.
Adopted on 28 September 1994.
E/CN. 4/1995/31/Add.2
page 20
Decision No. 17/1994 (Peru)
Communication addressed to the Government of Peru on
20 September 1993.
Concerning : Ricardo Domingo Briceflo Arias, on the one hand,
and the Republic of Peru, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible,
in respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with appreciation the information forwarded by
the Government concerned in respect of the case in question within 90 days of
the transmittal of the letter by the Working Group.
3. The Working Group also notes that the Government concerned has informed
the Group that the above-mentioned person is no longer in detention.
4. The source was requested for further information or confirmation of what
was stated by the Government, but no reply has been received.
S. In the context of the information received, the Working Group, having
considered the available information, is of the opinion that no special
circumstances warrant consideration by the Group of the nature of the
detention of the person released.
6. The Working Group, without prejudging the nature of the detention,
decides to file the case of Ricardo Domingo Briceflo Arias in accordance
with the terms of paragraph 14 (a) of its methods of work.
Adopted on 28 September 1994.
E/CN.4/1995/31/Add. 2
page 21
Decision No. 18/1994 (Peru)
Communication addressed to the Government of Peru on
20 September 1993.
Concerning : Enriqueta Laguna Villafranco, on the one hand,
and the Republic of Peru, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible,
in respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with appreciation the information forwarded by
the Government concerned in respect of the case in question within 90 days of
the transmittal of the letter by the Working Group.
3. The Working Group also notes that the Government concerned has informed
the Group that the above-mentioned person is no longer in detention.
4. In the context of the information received, the Working Group, having
considered the available information and taking into account the fact that the
charge of arbitrariness made in connection with the deprivation of liberty
refers to the absence of proof and not to some of the forms of arbitrary
detention covered by its methods of work, is of the opinion that no special
circumstances warrant consideration by the Group of the nature of the
detention of the person released.
6. The Working Group, without prejudging the nature of the detention,
decides to file the case of Enriqueta Laguna Villafranco in accordance
with the terms of paragraph 14 (a) of its methods of work.
Adopted on 28 September 1994.
E/CN. 4/1995/31/Add.2
page 22
Decision No. 19/1994 (Brazil)
Communication addressed to the Government of Brazil on
22 April 1994.
Concerning : Francisco de Asis Pinto de Nascimento,
Salvador Murao de Souza, Estevao Alberto Rocha da Silva, Manoel Privado,
Francisco Souza Lacerdo, Alciro José Ferreira, Raimundo Francisco
do Nascimento, Raimundo Pereira da Silva, Lindomar Gomez, Fransisco Dos
Reis Dos Santos Chaves, and three unidentified minors, on the one hand,
and The Federative Republic of Brazil, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible,
in respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with concern that to date no information has been
forwarded by the Government concerned in respect of the cases in question.
With the expiration of more than 90 days of the transmittal of the letter by
the Working Group, it is left with no option but to proceed to render its
decision in respect of the cases of alleged arbitrary detention brought to
its knowledge.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made, the Working Group would have
welcomed the cooperation of the Government of Brazil. In the absence of any
information from the Government, the Working Group believes that it is in a
position to take a decision on the facts and circumstances of the cases,
especially since the facts and allegations contained in the communication
have not been challenged by the Government.
S. The Working Group considers that:
(a) According to the allegation, Francisco de Asis Pinto do Nascimento,
Salvador Murao de Souza, Estevao Alberto Rocha da Silva, Manoel Privado,
Francisco Souza Lacerdo, Alciro José Ferreira, Raimundo Francisco
do Nascimento, Raimundo Pereira da Silva, Lindomar Gomez, Fransisco Dos Reis
Dos Santos Chaves, and three unidentified minors, all workers from the camp,
were detained on 21 March 1994 by the military police in the municipality of
Eldorado do CarajIs. The 10 adults are reportedly being held at regional
police headquarters in MarabI, where the first three were allegedly beaten,
while the three minors are said to be in the custody of the court in the
township of Curionôpolis. The reason for the adults' arrest was given as the
fact that they trespassed on the Jthaeté plantation, which borders the camp;
however, according to the allegation, the detentions are actually part of
harassment measures against peasants and trade-union leaders. It also states
that Francisco de Asis Pinto do Nascimento is the director of the Union of
Rural Workers of Eldorado do CarajIs and that Alziro Jose Ferreira is the son
of Amaldo Delcidio Ferreira, who, while President of the same trade union, was
shot to death by a gunman on 2 May 1993.
E/CN.4/1995/31/Add. 2
page 23
(b) The Government has provided no information whatsoever regarding the
facts.
(c) The allegation does not provide precise information as to the
reasons for the detention, but an interpretation of the motives behind it,
and simply states that the detainees deny having trespassed on the land.
(d) Under these circumstances, it is not possible for the Working Group
to adopt a decision until it receives further information.
6. In the light of the above the Working Group decides:
The case remains pending for further information.
Adopted on 28 September 1994.
E/CN. 4/1995/31/Add.2
page 24
Decision No. 20/1994 (Mexico)
Communication addressed to the Government of Mexico on
22 April 1994.
Concerning : José Francisco Gallardo Rodriguez, on the one hand,
and Mexico, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred in the
country in question.
2. The Working Group notes with concern that to date no information has
been forwarded by the Government concerned in respect of the case in question.
With the expiration of more than 90 days of the transmittal of the letter by
the Working Group, it is left with no option but to proceed to render its
decision in respect of the case of alleged arbitrary detention brought to its
knowledge.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made, the Working Group would have
welcomed the cooperation of the Government of Mexico. In the absence of any
cooperation of that Government, the Working Group believes that it is in a
position to take a decision on the facts and circumstances of the case,
especially since the facts and allegations contained in the communication
have not been challenged by the Government.
S. The Working Group considers that:
(a) According to the complaint, José Francisco Gallardo Rodriguez,
Brigadier-General in the Mexican Army, was arrested on 9 November 1993 and
accused of having misappropriated and caused damage to Army property in 1989;
he was absolved of these charges by an internal order but was nevertheless
kept in detention; he was also accused of defamation and other offences
against military honour. The facts, according to the complaint, have their
origin in a letter that General Gallardo sent to the Secretary for National
Defence and other authorities and the publication of an article in which he
called for the appointment of an Ombudsman in the army. In the army
General Gallardo rose rapidly in rank as a result of his professional and
academic training, and he brought various actions against the State, all of
which he won. He is being detained in the military prison of Camp No. 1
(Federal District)
(b) The Government of Mexico has failed to provide any information to
the Group, which could therefore adopt a decision immediately. However it
will refrain from doing so owing to the absence of any items of evidence
submitted by the defence. Specifically, it is unclear which court is trying
the case, why he is allegedly being kept in detention despite the fact that
E/CN.4/1995/31/Add. 2
page 25
the charges of misappropriation and damage of Army property have been dropped,
whether the proceedings instituted in respect of these offences also covered
the charge of defamation and offences against military honour, how far these
proceedings progressed, whether they were instituted in a civil or military
court, whether the defendant was able freely to choose his counsel, etc.
6. In view of the above, the Working Group decides:
The case remains pending for further information.
Adopted on 28 September 1994.
E/CN. 4/1995/31/Add.2
page 26
Decision No. 21/1994 (Peru)
Communication addressed to the Government of Peru on
20 September 1993.
Concerning : Julio Rondinel Cano, on the one hand, and the
Republic of Peru, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible,
in respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with concern that to date no information has been
forwarded by the Government of Peru in respect of the case in question. With
the expiration of more than 90 days of the transmittal of the letter by the
Working Group, it is left with no option but to proceed to render its decision
in respect of the case of alleged arbitrary detention brought to its
knowledge.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made, the Working Group would have
welcomed the cooperation of the Government of Peru. In the absence of any
information from the Government, the Working Group believes that it is in a
position to take a decision on the facts and circumstances of the case,
especially since the facts and allegations contained in the communication
have not been challenged by the Government.
S. Before taking a decision, the Working Group decided to request
supplementary information from the Government concerning certain important
legal aspects. Although more than four months have elapsed since its request,
the Government has not provided such information.
6. Additional information was also requested of the source, which
informed it that Mr. Rondinel, after being unjustly deprived of his
liberty for 34 months, was released on 7 April 1994.
7. The Working Group considers that:
(a) According to the complaint, Julio Rondinel Cano was arrested
on 19 June 1991 by the National Police of Peru in the street. He was charged
with having participated in a demonstration by the Shining Path terrorist
group with which, according to the police, he has links - a fact that the
detainee has denied ever since the day of his arrest.
(b) Initially he was charged by the Third Criminal Division of Lima
with disturbing the peace, an offence covered by article 319 of Peru's
Penal Code. The proceedings, which had already begun were suspended by
Decree-Law No. 25.475, and had to be re-initiated or resumed on the basis
of its provisions.
E/CN.4/1995/31/Add. 2
page 27
(c) In the absence of any information from the Government following
two requests, the Working Group will have to take a decision based solely on
the information and documents furnished by the source.
(d) Although the person concerned has been released, the Group can, in
accordance with its methods of work, pronounce itself on the arbitrariness of
a detention, on a case-by-case basis.
(e) The Working Group, in accordance with its mandate and methods of
work, can only decide whether a detention is arbitrary or not in the cases
indicated in paragraph 3 of this decision, namely, 1. where there is no legal
basis for the detention; 2. where the arrest took place as a result of the
legitimate exercise of some of the rights mentioned therein; and 3. where
the rules of due process have been so seriously violated as to render the
detention arbitrary.
(f) The first ground for finding the detention arbitrary must be
rejected because the detention was validated, according to the source itself,
by a judicial order issued by the fourteenth Lima Court of Investigation,
proceedings having been instituted before the Third Division of the Lima
Criminal Court.
(g) The second ground must also be discarded since the detention
has not been associated with the legitimate exercise of any of the rights
mentioned in paragraph 3, subparagraph II.
(h) Specifically, the complaint alleges that: (1) the proceedings have
now been suspended for over 18 months on the basis of the fifth transitional
provision of the Decree-Law referred to above; (2) the detainee has not been
released on bail; (3) the court which is to hear the case has not yet been
designated; (4) the person concerned is innocent of the charges brought
against him; and (5) proof of participation is not genuine, so that the Group
is requested “to review the evidence on which the charges are based”.
(i) Suspension of the proceedings for such a long period, failure to
designate the court that is to hear the case and the legal impossibility of
arranging release on bail constitute violations of the rights contained in
articles 9, 10 and 11 of the Universal Declaration of Human Rights,
articles 9.1, 9.2, 9.3, 9.4, 14.1, 14.2, 14.3 (a) and (c) of the International
Covenant on Civil and Political Rights, and Principles 11, 36, 37 and 38 of
the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, inasmuch as these provisions proclaim the right to
personal freedom, presumption of innocence, trial without undue delay, and
release on bail, since pre-trial detention should not be the general rule.
(j) This failure to ensure the impartiality of the proceedings is so
serious that it makes Mr. Rondinel's detention arbitrary.
(k) However, the request that the Working Group should declare the
detainee innocent and review the evidence on which the charge is based is
well outside the terms of its mandate.
E/CN. 4/1995/31/Add.2
page 28
8. In the light of the above, the Working Group notes with satisfaction that
Mr. Rondinel Cano has been released. However, and in accordance with its
methods of work, the Working Group decides:
The detention of Julio Rondinel Cano between 19 June 1991
and 7 April 1994 is declared to be arbitrary, being in contravention of
articles 9, 10 and 11 of the Universal Declaration of Human Rights and
articles 9 and 14 of the International Covenant on Civil and Political
Rights, to which Peru is a party, and falling within category III of the
principles applicable in the consideration of the cases submitted to the
Working Group.
9. Consequent upon the decision of the Working Group declaring the detention
of the person concerned to be arbitrary, and bearing in mind that he has been
released, the Working Group requests the Government of Peru to take the
necessary steps to remedy the situation in order to bring it into conformity
with the norms and principles incorporated in the Universal Declaration of
Human Rights and in the International Covenant on Civil and Political Rights.
Adopted on 29 September 1994.
E/CN.4/1995/31/Add. 2
page 29
Decision No. 22/1994 (Peru)
Communication addressed to the Government of Peru on
20 September 1993.
Concerning : Luis Alberto Cantoral Benavides, on the one hand, and
the Republic of Peru, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with concern that to date no information has been
forwarded by the Government of Peru in respect of the case in question. With
the expiration of more than 90 days of the transmittal of the letter by the
Working Group, it is left with no option but to proceed to render its decision
in respect of the case of alleged arbitrary detention brought to its
knowledge.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made, the Working Group would have
welcomed the cooperation of the Government of Peru. In the absence of any
information from the Government, the Working Group believes that it is in a
position to take a decision on the facts and circumstances of the case,
especially since the facts and allegations contained in the communication have
not been challenged by the Government.
S. The Working Group considers that:
(a) According to the complaint and accompanying documents, Luis Alberto
Cantoral Benavides was arrested at his home in Lima on 6 February 1993 by the
National Anti-Terrorist Directorate (DINCOTE) and charged with treason before
the military court. The reason for his arrest, according to the source, was
his close acquaintanceship with José Antonio Cantonal Benavides, against whom
a detention order had been issued for alleged terrorist activities. It is
said that he was tortured on DINCOTE premises.
(b) He was acquitted of the charge of treason by the military court
which nevertheless referred him for trial to the ordinary courts “because the
records contained proof and reasonable circumstantial evidence suggesting that
he could be held responsible for the offence of terrorism. This judgement of
the military court, a court martial, was handed down on 2 April 1993, but so
far no proceedings have been initiated before the ordinary courts.
(c) The Working Group, in a desire to obtain further details about the
situation, requested the Government, by letter dated 19 May 1994, to clarify
certain legal aspects. Over four months have elapsed and the Government has
failed to comply with this request.
E/CN. 4/1995/31/Add.2
page 30
(d) Since proceedings against Luis Alberto Cantoral Benavides were to
have been initiated before an ordinary court we requested the Government for
information on this point. The Government would undoubtedly have informed the
Working Group whether proceedings had commenced. In the absence of such
information the Working Group assumes that they have not begun and will
accordingly take a decision on this basis.
(e) The Working Group, in accordance with its mandate and methods of
work, can decide whether a detention is arbitrary or not only in the cases
indicated in paragraph 3 of this decision, namely, (1) where there is no legal
basis for the detention; (2) where the arrest took place as a result of the
legitimate exercise of some of the rights mentioned therein; and (3) where the
rules of due process have been so seriously violated as to render the
detention arbitrary.
(f) The first ground for finding the detention arbitrary must be
rejected because the detention was validated, according to the source itself,
by a judicial order, proceedings have been initiated before the Lima Military
Court, at which time the detainee had been at the disposal of a judge of an
ordinary court.
(g) The second ground must also be discarded since the detention has
not been associated with the legitimate exercise of any of the rights
mentioned in paragraph 3, subparagraph II.
(h) Specifically, the complaint alleges the following: (1) Undue delay
in bringing proceedings for the offence of terrorism before the ordinary
court, since the records required to carry out a review of the court martial's
acquittal decision were in the possession of the Supreme Council of the
military courts system; and (2) the innocence of the detainee for want of
proof of his participation in terrorist acts - what evidence there is being
unacceptable since it was obtained by torture.
(i) The excessive delay in the initiation of proceedings for the
offence of terrorism constitutes a violation of the rights set out in
articles 9, 10 and 11 of the Universal Declaration of Human Rights,
articles 9.1, 9.2, 9.3, 9.4, 14.1, 14.2, 14.3 (a) and (c) of the International
Covenant on Civil and Political Rights, and Principles 11, 36, 37 and 38 of
the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment inasmuch as these provisions proclaim the right to
personal freedom, presumption of innocence, trial without undue delay, and
release on bail since pre-trial detention should not be the general rule.
(j) This failure to ensure the impartiality of the proceedings is so
serious as to make the detention arbitrary.
(k) However, the request that the Working Group should declare the
detainee innocent and review the evidence on which the charge is based is well
outside the terms of its mandate.
E/CN.4/1995/31/Add. 2
page 31
6. In the light of the above, the Working Group decides:
(a) The detention of Luis Alberto Cantoral Benavides is declared to be
arbitrary, being in contravention of articles 9, 10 and 11 of the Universal
Declaration of Human Rights and articles 9 and 14 of the International
Covenant on Civil and Political Rights to which Peru is a party and falling
within category III of the principles applicable in the consideration of the
cases submitted to the Working Group.
(b) The Group further decides to bring the allegations made by the
source to the attention of the Special Rapporteur on the Question of Torture.
7. Consequent upon the decision declaring the detention of the person
concerned to be arbitrary, the Working Group requests the Government of Peru
to take the necessary steps to remedy the situation in order to bring it into
conformity with the norms and principles incorporated in the Universal
Declaration of Human Rights and in the International Covenant on Civil and
Political Rights.
Adopted on 29 September 1994.
E/CN. 4/1995/31/Add.2
page 32
Decision No. 23/1994 (Peru)
Communication addressed to the Government of Peru on
20 September 1993.
Concerning Ciriaco Gutiérrez Quispe, Justino Curro Gutiérrez, Justo
Chipana Maldonado and Rafael Curro Gutiérrez, on the one hand, and the
Republic of Peru, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it, and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with concern that to date no information has been
forwarded by the Government concerned in respect of the cases in question.
With the expiration of more than 90 days of the transmittal of the letter by
the Working Group, it is left with no option but to proceed to render its
decision in respect of each of the cases of alleged arbitrary detention
brought to its knowledge.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made, the Working Group would have
welcomed the cooperation of the Government. In the absence of any information
from the Government, the Working Group believes that it is in a position to
take a decision on the facts and circumstances of the cases, especially since
the facts and allegations contained in the communication have not been
challenged by the Government.
S. The Working Group considers that:
(a) According to the complaint, Ciriaco Gutiérrez Quispe,
Justino Curro Gutiérrez, Justo Chipana Maldonado and Rafael Curro Gutiérrez
were arrested by members of the Huantane Infantry Battalion No. 21 of the E lM
on 8 April 1992 because of their alleged connection with the Shining Path
faction of the Peruvian Communist Party and their alleged responsibility for
the murder of Daniel Curro Chambi, Mayor of Ayrampuni, on 21 May 1989. No
further information is provided.
(b) In the absence of any information from the Government, the Working
Group will have to take a decision based solely on the information and
documentation provided by the source.
(c) In view of the paucity of information, the Working Group asked the
source for further particulars. More than four months later, the source has
not replied.
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page 33
(d) The Group also requested information from the Government concerning
legal aspects with a bearing on the cases, but this has not been forthcoming
either.
(e) In accordance with its mandate and methods of work, the Working
Group can only pronounce on the arbitrariness or otherwise of detention in the
cases indicated in paragraph 3 of this decision, in other words: (i) where
there is no legal basis for the detention; (ii) where the detention has
occurred as a result of the legitimate exercise of some of the rights
mentioned therein; and (3) where the rules of due process have been so
seriously violated as to render the detention arbitrary.
(f) The first ground for finding the detention arbitrary must be
discarded, since according to the source itself the detention has been
validated by a judicial order and criminal proceedings have been instituted in
Puno, although the communication does not specify which is the investigating
or trial court.
(g) The second ground must also be set aside, since the detention has
not been associated with the legitimate exercise of any of the rights
mentioned in paragraph 3, subparagraph II.
(h) In this case it is alleged that: (1) there has been an undue delay
in the proceedings, which have already been in progress for more than two
years, and there is a complaint over their continuation pending before the
Supreme Court; (2) the prisoners are innocent of the charges against them; and
(3) there is inadequate proof of their involvement.
(i) The very protracted nature of the proceedings is a violation of the
rights provided for by articles 9, 10 and 11 of the Universal Declaration of
Human Rights, articles 9 (1), (2), (3) and (4) and 14 (1), (2), (3) (a) and
3 (c) of the International Covenant on Civil and Political Rights, and
Principles 11, 36, 37 and 38 of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment, inasmuch as these
provisions proclaim, inter alia , the right to personal freedom, presumption of
innocence, trial without undue delay and release on bail, as well as declaring
that pre-trial detention must not be the general rule.
(j) The above-mentioned breaches of the rules relating to a fair trial
are so serious as to render the detention arbitrary.
(k) On the other hand, the request that the Working Group should
declare the prisoners innocent, pronounce on the evidence of the indictment
and resolve the alleged contradictions between police affidavits and
statements by judges and prosecutors falls completely outside its mandate.
6. In the light of the above the Working Group decides:
The detention of Ciriaco Gutiérrez Quispe, Justino Curro Gutiérrez,
Justo Chipana Maldonado and Rafael Curro Gutiérrez is declared to be
arbitrary being in contravention of articles 9, 10 and 11 of the
Universal Declaration of Human Rights and articles 9 and 14 of the
E/CN. 4/1995/31/Add.2
page 34
International Covenant on Civil and Political Rights, to which Peru is a
party, and falling within category III of the principles applicable in
the consideration of the cases submitted to the Working Group.
7. Consequent upon the decision of the Working Group declaring the detention
of the above-mentioned persons to be arbitrary, the Working Group requests the
Government of Peru to take the necessary steps to remedy the situation in
order to bring it into conformity with the norms and principles incorporated
in the Universal Declaration of Human Rights and in the International Covenant
on Civil and Political Rights.
Adopted on 29 September 1994.
E/CN.4/1995/31/Add. 2
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Decision No. 24/1994 (Peru)
Communication addressed to the Government of Peru on
20 September 1993.
Concerning Carlos Florentino Molero Coca, on the one hand, and the
Republic of Peru, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it, and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with concern that to date no information has been
forwarded by the Government concerned in respect of the case in question.
With the expiration of more than 90 days of the transmittal of the letter by
the Working Group, it is left with no option but to proceed to render its
decision in respect of the case of alleged arbitrary detention brought to its
knowledge.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made, the Working Group would have
welcomed the cooperation of the Government of Peru. In the absence of any
information from the Government, the Working Group believes that it is in a
position to take a decision on the facts and circumstances of the case,
especially since the facts and allegations contained in the communication have
not been challenged by the Government.
5. The Working Group considers that:
(a) According to the complaint and the copious accompanying
documentation, Carlos Florentino Molero Coca, a social sciences student at
San Marcos University, was arrested on 30 April 1992 because of his alleged
membership of the Shining Path organization of the Peruvian Communist Party.
He was tried by a “faceless” court and sentenced to 12 years' imprisonment.
(b) The complaint alleges that: (a) the prisoner is innocent, on the
basis of the fact that the 43rd Government Procurator's Office in Lima holds
the evidence for the prosecution to be insufficient; (b) the offence for which
he was convicted is not the same as the one with which he was charged; in
connection with this defect, the Working Group, in the absence of any
reference in the complaint, infers that the rules held to have been infringed
are those laid down in articles 9 (2) and 14 (3) (a) of the International
Covenant on Civil and Political Rights; (c) an appeal for the judgement to be
set aside, lodged with the Supreme Court of the Republic on 18 December 1992,
has not yet been settled; and (d) the trial was conducted by a “faceless”
court, although no claim is made in this connection.
E/CN. 4/1995/31/Add.2
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(c) The Group requested the source to update the information and asked
the Government to clarify some legal aspects with a bearing on a decision on
the matter. Four months later, neither the source nor the Government has
answered the Group.
6. In the light of the above, the Working Group decides to keep the case
pending while awaiting further information under paragraph 14 (c) of its
methods of work.
Adopted on 29 September 1994.
E/CN.4/1995/31/Add. 2
page 37
Decision No. 25/1994 (Peru)
Communication addressed to the Government of Peru on
20 September 1993.
Concerning : Luis Enrique Quinto Facho, on the one hand, and the
Republic of Peru, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it, and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with concern that to date no information has been
forwarded by the Government concerned in respect of the case in question.
With the expiration of more than 90 days of the transmittal of the letter by
the Working Group, it is left with no option but to proceed to render its
decision in respect of the case of alleged arbitrary detention brought to its
knowledge.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made, the Working Group would have
welcomed the cooperation of the Government of Peru. In the absence of any
information from the Government, the Working Group believes that it is in a
position to take a decision on the facts and circumstances of the case,
especially since the facts and allegations contained in the communication have
not been challenged by the Government.
5. The Working Group considers that:
(a) According to the complaint and the copious accompanying
documentation, Luis Enrique Quinto Facho, together with his pregnant live-in
companion, a brother of hers, a nephew and two other persons, were arrested at
the former's house by Technical Police officers on 6 November 1992. A few
days beforehand, the police had searched the house without finding anything
suspicious, yet on the day of the arrest, they claimed to have found three
explosive devices, two segments of fuse and subversive pamphlets. The accused
were charged with belonging to the Shining Path organization of the Communist
Party. They are currently being prosecuted for offences against public
tranquillity (terrorism) under case No. 183-93. Although a copy of the
prosecutor's report of 17 February 1993 is attached, there is no indication
how far the case has progressed. It is contended that Quinto Facho is
innocent of the charges.
(b) It is alleged that Quinto Facho was physically and psychologically
tortured on DINCOTE (anti-terrorist police) premises.
(c) In the absence of any information from the Government, the Working
Group will have to take a decision based solely on the information and
documentation available.
E/CN. 4/1995/31/Add.2
page 38
(d) In accordance with its mandate and methods of work, the Working
Group can only pronounce on the arbitrariness or otherwise of detention in the
cases indicated in paragraph 3 of this decision, in other words: (1) where
there is no legal basis for the detention; (2) where the detention has
occurred as a result of the legitimate exercise of some of the rights
mentioned therein; and (3) where the rules of due process have been so
seriously violated as to render the detention arbitrary.
(e) The first ground for finding the detention arbitrary must be
discarded, since according to the source itself the detention has been
validated by a judicial order issued by the Lima Court of Investigation, and
the relevant proceedings have been initiated. Indeed, at the current stage of
the proceedings, the Government Prosecutor has already been heard.
(f) The second ground must also be set aside, since the detention has
not been associated with the legitimate exercise of any of the rights
mentioned in paragraph 3, subparagraph II.
(g) It is not for the Working Group to assess the adequacy of the
evidence adduced during the proceedings, except in so far as there may have
been a refusal to admit evidence (for instance, if the accused has not been
allowed to present his own witnesses or to examine witnesses for the
prosecution, in accordance with article 14 (3) (e) of the International
Covenant on Civil and Political Rights) , a refusal which has not been alleged.
The Group cannot declare a convicted person innocent.
(h) There has been no allegation of any procedural defect deriving from
a possible infringement of the international rules governing due process.
(i) On the basis of the information provided, it is not possible to
decide whether the detention was arbitrary or not.
6. In the light of the above the Working Group decides:
(a) To keep the case pending while awaiting further information under
paragraph 14 (c) of its methods of work.
(b) To transmit this case to the Special Rapporteur on the Question of
Torture in the light of the allegations made in the communication.
Adopted on 29 September 1994.
E/CN.4/1995/31/Add. 2
page 39
Decision No. 26/1994 (Colombia)
Communication addressed to the Government of Colombia on
12 November 1993.
Concerning : Fidel Ernesto Santana Mejia, Guillermo Antonio Brea
Zapata, Francisco Elias Ramos Ramos and Manuel Terrero Perez, on the one
hand, and the Republic of Colombia, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it, and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with appreciation the information forwarded by
the Government concerned in respect of the cases in question within 90 days of
the transmittal of the letter by the Working Group.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made the Working Group welcomes the
cooperation of the Government of Colombia. The Working Group believes that it
is in a position to take a decision on the facts and circumstances of the
cases, in the context of the allegations made and the response of the
Government thereto.
S. The Working Group considers that:
(a) According to the complaint, the Dominican citizens
Fidel Santana M. , Guillermo A. Brea Zapata and Francisco E. Ramos R. were
arrested at Ibagué, Colombia, on 2 October 1992 and Manuel Terrero was
arrested on 13 October 1992. The communication states that the four Dominican
citizens had been invited to Colombia to attend a scientific seminar on “The
Americas: past, present and future” and that, following this meeting, they
made contact with a number of persons in political, trade union and social
circles. They also expressed interest in contacting guerrilla organizations
and indigenous organizations. On 2 October 1992 the three first-mentioned
persons were arrested by the Colombian Army and subjected to various
(unspecified) forms of torture, and on 6 October 1992 they were taken to
BogotI, where an order was issued for their release. This decision was not
carried out. On 22 October 1992 they were transferred to the Model Prison
together with Terrero, who had been arrested on 13 October 1992.
(b) Since that time, they have been under trial by the “Public Order
Court” which, according to the complaint and the accompanying information,
“does not recognize the right to a defence and the principle of holding
proceedings in public and creates secret judges, secret prosecutors, secret
witnesses, secret evidence and secret experts; there is no adversary
procedure, neither counsel for the defence nor the accused is allowed to
address the court personally, evidence may be concealed, no time-limit is set
for completion of the examination proceedings, it is forbidden to photocopy
the file and the lawyer has to confine himself to reading it and then
E/CN. 4/1995/31/Add.2
page 40
presenting the case for the defence in writing rather than orally” . The
charges against the prisoners are rebellion and conspiring to commit an
offence. According to the source, release cannot be granted unless it is
confirmed by a court of appeal.
(c) In its report, the Government states that the above-mentioned
persons are being tried for the alleged offences of rebellion and impairment
of national integrity by the Regional Judge of Santa Fe, BogotI. On
10 February 1994 an order was issued for the opening of the proceedings under
the charge formulated by the Regional Prosecutor's Office on 9 December 1993.
In drawing up the indictment, the Prosecutor's Office considered, in
accordance with article 441 of the Code of Criminal Procedure, that the
existence of the act was demonstrated and that the responsibility of the
accused was involved. From this it is deduced that “at no time have these
Dominican gentlemen been unlawfully deprived of their freedom; on the
contrary, they have been tried in accordance with the procedures applicable to
all trials and with due respect for their rights and safeguards, both
constitutional and legal”.
(d) It should be pointed out that, in its reply, the Government does
not specify the acts which serve as the basis for the indictment, nor does it
deny or dispute that the indictment is based on the attempt to establish
contact with indigenous or guerrilla organizations, as claimed in the
communication.
(e) In this connection, it is the Group's understanding that the acts
on which the indictment of rebellion and impairment of national integrity are
based are those indicated in the communication.
(f) It has been argued that the rules of due process have been violated
through the existence of proceedings in which much of the evidence presented
was secret, as also were the judge and the prosecutor.
(g) In the Working Group's view, it is reasonable for legislation to
establish adequate arrangements to ensure due protection for magistrates
administering justice. These measures necessarily include those laid down by
certain bodies of legislation in order to keep the judge's identity
confidential.
(h) If these exceptional measures are accepted, however, an effort has
to be made to ensure their compatibility with the international rules
concerning due process of law. In this connection, an accused person - and,
indeed, any judiciable person - is entitled to be tried by an independent and
impartial tribunal. If the State grants the judge the privilege of keeping
his identity confidential, it should take some additional action to avoid a
situation in which the judge is not independent and impartial, not only in the
abstract but also for the specific case dealt with. In the present instance,
there is no evidence of such action having been taken.
(i) However, it is not enough for the judge to be impartial and
independent. The proceedings themselves must be conducted with due
safeguards, inter alia , that the accused should be given a public hearing with
due guarantees. In addition, he is entitled to have “adequate time and
E/CN.4/1995/31/Add. 2
page 41
facilities for the preparation of his defence” and to “examine, or have
examined, the witnesses against him” . None of these rules can be observed if
the identity of the witnesses is also kept secret and if their testimony is
not public.
(j) The claims regarding the fact that the trial is being conducted by
writing without the lawyer or the accused being entitled personally to address
the court cannot be entertained. Neither the Universal Declaration nor the
International Covenant on Civil and Political Rights makes oral proceedings an
attribute of due process of law, and written proceedings can very well provide
the accused with sufficient guarantees.
(k) The considerations set out in paragraphs (h) and (i) above indicate
infringements of the rules of due process of law which, in the Group's view,
are such as to render the detention arbitrary, in accordance with the
provisions of category III of the Group's methods of work.
6. In the light of the above the Working Group decides:
The detention of Fidel Ernesto Santana Mejia, Guillermo Antonio
Brea Zapata, Francisco Elias Ramos Ramos and Manuel Terrero Perez is
declared to be arbitrary being in contravention of articles 9 and 11 of
the Universal Declaration of Human Rights and article 14 of the
International Covenant on Civil and Political Rights, to which the
Republic of Colombia is a party, and falling within category III of the
principles applicable in the consideration of the cases submitted to the
Working Group.
7. Consequent upon the decision of the Working Group declaring the detention
of the above-mentioned persons to be arbitrary, the Working Group requests the
Government of Colombia to take the necessary steps to remedy the situation in
order to bring it into conformity with the norms and principles incorporated
in the Universal Declaration of Human Rights and in the International Covenant
on Civil and Political Rights.
Adopted on 29 September 1994.
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Decision No. 27/1994 (Tajikistan)
Communication addressed to the Government of Tajikistan on
22 April 1994.
Concerning : Mir Baba Mir Rahim, Ahmad Shah Kamil and
Khayriddin Kasymov, on the one hand, and the Republic of Tajikistan, on
the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with concern that to date no information has been
forwarded by the Government concerned in respect of the cases in question.
With the expiration of more than 90 days of the transmittal of the letter by
the Working Group, it is left with no option but to proceed to render its
decision in respect of the cases of alleged arbitrary detention brought to its
knowledge.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made, the Working Group would have
welcomed the cooperation of the Government of Tajikistan. In the absence of
any information from the Government, the Working Group believes that it is in
a position to take a decision on the facts and circumstances of the cases,
especially since the facts and allegations contained in the communication have
not been challenged by the Government.
S. The communication, a summary of which has been transmitted to the
Government, concerned Mir Baba Mir Rahim (or Mirrakhimov) former
Director-General of the Tajik Radio-Television, Ahmad Shah Kamil (or Kamilov)
former Director of the Tajik national Television and Khayriddin Kasymov, a
television journalist. Mir Rahim was arrested in Ashkhabad, in Turkmenistan;
Kamil and Kasymov were arrested in Osh in the south of Kyrgyzstan. All three,
as well as other television journalists, were reportedly arrested on
10 December 1992, date of the entry of government troops into Dushanbe, by
local authorities and then handed over to the Tajik authorities. They were
said to be held, without trial, in Prison No. 1 in Dushanbe (known as
Sledizator SIZO) . It was not known whether the three journalists had been
officially charged, but according to the source they were accused of
“conspiring against the Government in view of overthrowing it with the help of
the media”. Kasymov and Kamil were also accused of intending to pass “stolen”
information to the West. The source reported that, when they were arrested,
these journalists had in their possession video cassettes of incidents
indicating the implication of the new Tajik authorities in cases of killings
and torture. According to the source, their detention without trial for over
one year may be related to that fact. It was further alleged that the
detained journalists have been denied access to a lawyer. According to the
source, a variety of reports state that Khayriddin Kasymov was beaten while
being interrogated. His nose and many teeth were broken. He was given no
E/CN.4/1995/31/Add. 2
page 43
legal or medical assistance. The source states that a variety of information
concurs in indicating that the three journalists were beaten during
interrogation.
6. It is apparent from the above that Mir Baba Mir Rahim, Ahmad Shah Kamil
and Khayriddin Kasymov have been kept in detention since 10 December 1992
solely for having peacefully exercised their right to freedom of opinion and
expression, a right guaranteed by article 19 of the Universal Declaration of
Human Rights and article 19 of the International Covenant on Civil and
Political Rights, and specifically their right to enjoy the freedom to seek,
receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in print, in the form of art, or through any other
media of their choice. There is nothing to prove that their activities fall
within the framework of the permissible restrictions which must be provided by
law and must be necessary for respect of the rights or reputations of others
or the protection of national security or of public order or of public health
or morals.
7. In the light of the above the Working Group decides:
The detention of Mir Baba Mir Rahim, Ahmad Shah Kamil and
Khayriddin Kasymov, is declared to be arbitrary being in contravention of
article 19 of the Universal Declaration of Human Rights, and article 19
of the International Covenant on Civil and Political Rights, to which the
Republic of Tajikistan is a Party as a former Republic of the USSR, and
falling within category II of the principles applicable in the
consideration of the cases submitted to the Working Group.
8. Consequent upon the decision of the Working Group declaring the detention
of the above-mentioned persons to be arbitrary, the Working Group requests the
Government of Tajikistan to take the necessary steps to remedy the situation
in order to bring it into conformity with the provisions and principles
incorporated in the Universal Declaration of Human Rights and in the
International Covenant on Civil and Political Rights.
Adopted on 29 September 1994.
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page 44
Decision No. 28/1994 (Islamic Republic of Iran)
Communication addressed to the Government of the Islamic Republic
of Iran on 22 April 1994.
Concerning : Manouchehr Karimzadeh, on the one hand, and the
Islamic Republic of Iran, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with concern that to date no information has been
forwarded by the Government concerned in respect of the case in question.
With the expiration of more than 90 days of the transmittal of the letter by
the Working Group, it is left with no option but to proceed to render its
decision in respect of the case of alleged arbitrary detention brought to its
knowledge.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made, the Working Group would have
welcomed the cooperation of the Government of the Islamic Republic of Iran.
In the absence of any information from the Government, the Working Group
believes that it is in a position to take a decision on the facts and
circumstances of the case, especially since the facts and allegations
contained in the communication have not been challenged by the Government.
5. According to the communication, a summary of which has been transmitted
to the Government, Manouchehr Karimzadeh, a cartoonist for the scientific
revue “Farad”, was allegedly arrested on 11 April 1992 for having illustrated
an article criticizing the state of sport in Iran. He was being detained in
Evin Prison. According to the source, Manouchehr Karimzadeh was accused of
“blasphemy” and insulting the memory of the founder of the Islamic Republic,
Imam Khomeini. It was reported that he was sentenced to one year in prison
and fined 500,000 Rials (US$ 350) on 16 September 1992, a judgement which was
repealed on 14 May 1993 by the Supreme Court. However, in mid-October 1993 he
was sentenced to 10 years in prison.
6. It appears from the facts as described above that Manouchehr Karimzadeh
is being kept in detention since 11 April 1992 solely for having exercised
pacifically his right to freedom of opinion and expression, a right guaranteed
by article 19 of the Universal Declaration of Human Rights and article 19 of
the International Covenant on Civil and Political Rights.
7. In the light of the above the Working Group decides:
The detention of Manouchehr Karimzadeh is declared to be arbitrary
being in contravention of article 19 of the Universal Declaration of
Human Rights, and article 19 of the International Covenant on Civil and
E/CN.4/1995/31/Add. 2
page 45
Political Rights, to which the Islamic Republic of Iran is a Party and
falling within category II of the principles applicable in the
consideration of the cases submitted to the Working Group.
8. Consequent upon the decision of the Working Group declaring the detention
of the above-mentioned person to be arbitrary, the Working Group requests the
Government of the Islamic Republic of Iran to take the necessary steps to
remedy the situation in order to bring it into conformity with the provisions
and principles incorporated in the Universal Declaration of Human Rights and
in the International Covenant on Civil and Political Rights.
Adopted on 29 September 1994.
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Decision No. 29/1994 (Republic of Korea)
Communication addressed to the Government of the Republic of Korea
on 22 April 1994.
Concerning : Lee Kun-hee and Choi Chin-sup, on the one hand, and
the Republic of Korea, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with concern that to date no information has been
forwarded by the Government concerned in respect of the cases in question.
With the expiration of more than 90 days of the transmittal of the letter by
the Working Group, it is left with no option but to proceed to render its
decision in respect of the cases of alleged arbitrary detention brought to its
knowledge.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made, the Working Group would have
welcomed the cooperation of the Government of the Republic of Korea. In the
absence of any information from the Government, the Working Group believes
that it is in a position to take a decision on the facts and circumstances of
the case, especially since the facts and allegations contained in the
communication have not been challenged by the Government.
5. The communication, a summary of which has been transmitted to the
Government, concerned the following persons:
(a) Lee Kun-hee, a 27-year old Democratic Party worker (main opposition
party) was allegedly arrested without warrant by 7 or 8 officials of the
Agency for National Security Planning (ANSP) on 26 September 1992. He was
accused of passing information about the 1992 national defence budget to
Hwang In-uk, knowing that he was a North Korean agent and that the information
would be passed on to North Korea. This information, however, had previously
been published and was available to the general public. Lee Kun-hee was
reportedly also accused of possessing pro-North Korean literature and a video
which praises the North Korean leader, President Kim Il Sung. On
15 January 1993, Lee Kun-hee was sentenced to three years' imprisonment under
the National Security Law and the Military Secret Protection Law for giving
State secrets to North Korea.
(b) Choi Chin-sup, aged 33, a journalist working for the “Mal” monthly
journal, who was allegedly arrested by four officials of the ANSP on
14 September 1992. It was reported that Choi Chin-sup was charged with
belonging to an “anti-State” organization, a pro-reunification group called
the “1995 Committee”. In 1991, it was renamed the Patriotic League, but
Choi Chin-sup was apparently no longer a member at the time of his arrest.
Choi Chin-sup was also charged with publishing information praising
E/CN.4/1995/31/Add. 2
page 47
North Korea. On 24 February 1993, Choi Chin-sup was reportedly sentenced to
three years' imprisonment under the National Security Law, for belonging to an
“anti-State” organization and for producing and disseminating material in
support of North Korea. It was alleged that in both cases the following
elements relating to the rights of detained persons to a fair trial had not
been respected:
On 6 October 1992, the ANSP reported that it had uncovered the
largest spying organization in South Korea since the 1950s. A large
exhibition was set up by the ANSP at the Seoul Railway Station, with
posters of some defendants, including Lee Kun-hee and Choi Chin-sup, who
were labelled as “spies”. However, the defendants had neither been
charged nor tried at this time.
Both men were allegedly severely ill-treated: Lee Kun-hee was
allegedly deprived of sleep and beaten during his interrogation.
Choi Chin-sup was allegedly beaten, stripped naked and forced to stand in
the same position for long periods of time during his interrogation.
Both were also denied access to their families and lawyers.
6. Article 19 of the Universal Declaration of Human Rights and article 19 of
the International Covenant on Civil and Political Rights guarantee the right
to freedom of opinion and expression. The question remains whether the
restrictions placed on this freedom by national legislation correspond to
article 19, paragraph 3 (b) of the Covenant. In the absence of information
supplied by the Government, the Working Group considers that Mr. Lee and
Mr. Choi did not employ, propagate or prepare for violence; nor, according to
the same source, did they transmit to others secret information or information
that could represent a threat to national security, since the Government has
not specified the secret material in question or the reason for which it was
considered to constitute a State secret.
7. In the light of the above the Working Group decides:
The detention of Lee Kun-hee and Choi Chin-sup is declared to be
arbitrary being in contravention of article 19 of the Universal
Declaration of Human Rights and article 19 of the International Covenant
on Civil and Political Rights, to which the Republic of Korea is a Party
and falling within category II of the principles applicable in the
consideration of the cases submitted to the Working Group.
8. Consequent upon the decision of the Working Group declaring the detention
of the above-mentioned persons to be arbitrary, the Working Group requests the
Government of the Republic of Korea to take the necessary steps to remedy the
situation in order to bring it into conformity with the provisions and
principles incorporated in the Universal Declaration of Human Rights and in
the International Covenant on Civil and Political Rights.
Adopted on 29 September 1994.
E/CN. 4/1995/31/Add.2
page 48
Decision No. 30/1994 (Republic of Korea)
Communication addressed to the Government of the Republic of Korea
on 3 August 1993.
Concerning : Hwang Suk-Yong, on the one hand, and the Republic of
Korea, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with appreciation the information forwarded by
the Government concerned in respect of the case in question within 90 days of
the transmittal of the letter by the Working Group.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made the Working Group welcomes the
cooperation of the Government of the Republic of Korea. The Working Group
transmitted the reply provided by the Government to the source that had
submitted the information and the latter has provided the Working Group with
its comments. In order to obtain additional information, on 25 May 1994 the
Working Group requested the Government of the Republic of Korea to communicate
to it the text of the court judgement concerning Hwang Suk-Yong. The Working
Group noted with concern that to date the Government has not supplied this
document. It notes with regret that the spirit of cooperation displayed in
the Government's first reply (20 October 1993) has been called into question
by the lack of subsequent reactions.
5. The Working Group believes that it is in a position to take a decision on
the facts and circumstances of the case, in the context of the allegations
made and the response of the Government thereto, as well as the comments
provided by the source.
6. According to the communication, a summary of which has been transmitted
to the Government, 1 -Iwang Suk-Yong, aged 50, a writer, was reportedly arrested
on 27 April 1993 at Seoul Airport by officials of the Agency for National
Security Planning (ANSP) and remained in detention ever since. It was
reported that Hwang Suk-Yong travelled to North Korea in 1989 and subsequently
went into self-imposed exile to avoid arrest in the Republic of Korea, and
that he was arrested upon his return to Seoul from the United States of
America. According to the source, 1-Iwang Suk-Yong has been detained solely due
to his non-violent exercise of his rights to freedom of expression and
association.
7. In its reply of 20 October 1993, five days before Hwang Suk-Yong was
convicted, the Government of the Republic of Korea confirmed that he had been
arrested on 11 June 1993 under the National Security Act, on the following
charges:
E/CN.4/1995/31/Add. 2
page 49
(a) Five unlawful visits to North Korea, during which he met members of
the North Korean intelligence agency, to which he transmitted information
regarding the domestic situation in the Republic of Korea.
(b) The handing over of $250,000 by a high-ranking North Korean
official to assist anti-South Korean organizations based in the United States.
(c) Illegal dissemination of North Korean propaganda hostile to the
South.
The Government maintains that State terrorism is an instrument of North Korean
foreign policy; but it does not indicate in what respect Hwang Suk-Yong's
activities can be described as terrorism. Nothing in the text of the
Government's reply testifies to violence perpetrated, premeditated, advocated
or upheld by Hwang Suk-Yong. The Government's explanations concerning the
scope of the National Security Law, protecting society against “illegal acts
such as a violent attempt to overthrow the Government”, do not as they stand
appear to apply to the case of Hwang Suk-Yong, since the Government does not
accuse him of such a violent attempt. The Government also considers that the
proceedings against the accused are moving forward properly, without any
violation of national legislation guaranteeing the right to a fair trial. The
Government concludes by emphasizing that other institutions should not
interfere in this matter.
8. The source states in its comments of 17 January 1994 that
on 25 October 1993 Hwang Suk-Yong was sentenced to eight years' imprisonment
by the court of first instance. It indicates (without specifying the figure
of $250,000) that the money represented copyright fees for the film which was
made of his book Jankilsan . The source adds that Hwang Suk-Yong, who was
interrogated for the first 17 days of his detention by ANSP, complained of
having been deprived of sleep, interrogated for long periods and threatened.
9. The Working Group considers that the grounds for the detention and
conviction of Hwang Suk-Yong lie in the personal contacts he has had with
individuals originating from North Korea with the aim of publicly advocating
dialogue with North Koreans.
10. The Working Group recalls that article 19 of the Universal Declaration of
Human Rights and article 19 of the International Covenant on Civil and
Political Rights guarantee the right to freedom of opinion and expression,
with the proviso that restrictions of this freedom set out in national
legislation must correspond to article 19, paragraph 3 (b) of the Covenant.
The Government of the Republic of Korea has not proved that Hwang Suk-Yong
used, advocated or premeditated violence; it does not even accuse him of
having transmitted secret information or information likely to threaten
national security. The Working Group does not regard the mere affirmation
that Hwang Suk-Yong had contacts with the North Korean intelligence services
as sufficient in itself to establish that Hwang Suk-Yong violated the law
setting out restrictions necessary for the protection of national security.
11. In keeping with international standards relating to human rights, the
international community has a duty to ensure the application of human rights
in national legislation in conformity with international standards, their
E/CN. 4/1995/31/Add.2
page 50
practical application and their evolution on the national and international
levels. The Working Group on Arbitrary Detention is but one of many examples
of machinery working in the cause of human rights.
12. It is apparent from the above that Hwang Suk-Yong was sentenced solely
for having exercised his right to freedom of opinion and expression, which is
guaranteed by article 19 of the Universal Declaration of Human Rights and
article 19 of the International Covenant on Civil and Political Rights. It is
also apparent that there is nothing to indicate that in doing so he had
recourse to violence, incited violence or caused any threat to national
security, public order or public health or morals and thereby violated a
national law stipulating permissible restrictions aimed at the protection of
those values.
13. In the light of the above the Working Group decides:
The detention of Hwang Suk-Yong is declared to be arbitrary being
in contravention of article 19 of the Universal Declaration of Human
Rights and article 19 of the International Covenant on Civil and
Political Rights, to which the Republic of Korea is a Party, and falling
within category II of the principles applicable in the consideration of
the cases submitted to the Working Group.
14. Consequent upon the decision of the Working Group declaring the detention
of the above-mentioned person to be arbitrary, the Working Group requests the
Government of the Republic of Korea to take the necessary steps to remedy the
situation in order to bring it into conformity with the provisions and
principles incorporated in the Universal Declaration of Human Rights and in
the International Covenant on Civil and Political Rights.
Adopted on 29 September 1994.
E/CN.4/1995/31/Add. 2
page 51
Decision No. 31/1994 (Indonesia)
Communication addressed to the Government of Indonesia on
22 April 1994.
Concerning : Nuka Soleiman, on the one hand, and the Republic of
Indonesia, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with concern that till date no information has
been forwarded by the Government concerned in respect of the case in question.
With the expiration of more than 90 days of the transmittal of the letter by
the Working Group, it is left with no option but to proceed to render its
decision in respect of alleged arbitrary detention brought to its knowledge.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made, the Working Group would have
welcomed the cooperation of the Government of Indonesia. In the absence of
any information from the Government, the Working Group believes that it is in
a position to take a decision on the facts and circumstances of the case,
especially since the facts and allegations contained in the communication have
not been challenged by the Government.
5. Nuka Soleiman is a university student and Chairman of the human rights
organisation Yayasan Pijar. He was sentenced to four years in prison by the
District Court of Central Jakarta on 24 February 1994 for criticizing
President Soeharto and for calling on him to accept responsibility for human
rights violations committed under his rule. He was charged under article 134
of the Indonesian Criminal Code, under which insulting the head of State is an
offence punishable by up to six years in prison. According to the source, the
trial failed to meet international standards of fairness. In particular, the
source alleges that the trial was marked by an atmosphere of intimidation due
to the presence of military and political security and to the fact that access
was strictly controlled. The source also questions the independence of the
Court given the fact that the Court agreed to hear testimony of only 1 of
17 witnesses requested for by the defence.
6. Nuka Soleiman in criticizing the Head of State was merely exercising his
right to freedom of expression and opinion guaranteed under article 19 of the
Universal Declaration and article 19 of the International Covenant on Civil
and Political Rights. The charge and prosecution under article 134 of the
Indonesian Criminal Code and the consequent imposition of the sentence was
therefore unwarranted. The trial of Nuka Soleiman also seems to have been
conducted in an atmosphere not conducive to a fair trial. The presence of
E/CN. 4/1995/31/Add.2
page 52
military and political security coupled with the fact that access to the Court
was strictly controlled makes the entire proceedings suspect. The decision of
the Court to allow only 1 of the 17 witnesses requested for by the defence
suggests the pre-determined nature of the proceedings.
7. In the light of the above the Working Group decides:
The detention of Nuka Soleiman, is declared to be arbitrary being
in contravention of articles 9, 19 and 20 of the Universal Declaration of
Human Rights, and articles 9, 14 and 19 of the International Covenant on
Civil and Political Rights and falling within categories II and III of
the principles applicable in the consideration of the cases submitted to
the Working Group.
8. Consequent upon the decision of the Working Group declaring the detention
of Nuka Soleiman to be arbitrary, the Working Group requests the Government of
Indonesia to take the necessary steps to remedy the situation in order to
bring it into conformity with the provisions and principles incorporated in
the Universal Declaration of Human Rights and in the International Covenant on
Civil and Political Rights.
Adopted on 29 September 1994.
E/CN.4/1995/31/Add. 2
page 53
Decision No. 32/1994 (Indonesia)
Communication addressed to the Government of Indonesia on
22 April 1994.
Concerning : Cheppy Sudrajat, on the one hand, and the Republic of
Indonesia, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with concern that till date no information has
been forwarded by the Government concerned in respect of the case in question.
With the expiration of more than 90 days of the transmittal of the letter by
the Working Group, it is left with no option but to proceed to render its
decision in respect of alleged arbitrary detention brought to its knowledge.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made, the Working Group would have
welcomed the cooperation of the Government of Indonesia. In the absence of
any information from the Government, the Working Group believes that it is in
a position to take a decision on the facts and circumstances of the case,
especially since the facts and allegations contained in the communication have
not been challenged by the Government.
5. Cheppy Sudrajat, a farmer from Rancamaya village in the Bogor of
West Java, organized a peaceful protest against a real estate and golf course
development in the Ciawi district of Bogor regency. For this, on
11 October 1993, he was sentenced to 10 months' imprisonment.
6. In organizing a peaceful protest Cheppy Sudrajat was doing no more than
exercising his right to freedom of expression and opinion guaranteed under
article 19 of the Universal Declaration of Human Rights and article 19 of the
International Covenant on Civil and Political Rights. He could neither have
been prosecuted nor punished for this. Any punishment to the exercise of a
guaranteed right, in such circumstances, would be arbitrary.
7. In the light of the above the Working Group decides:
The detention of Cheppy Sudrajat, is declared to be arbitrary being
in contravention of article 19 of the Universal Declaration of Human
Rights, and article 19 of the International Covenant on Civil and
E/CN. 4/1995/31/Add.2
page 54
Political Rights and falling within category II of the principles
applicable in the consideration of the cases submitted to the Working
Group.
8. Consequent upon the decision of the Working Group declaring the detention
of Cheppy Sudrajat to be arbitrary, the Working Group requests the Government
of Indonesia to take the necessary steps to remedy the situation in order to
bring it into conformity with the provisions and principles incorporated in
the Universal Declaration of Human Rights and in the International Covenant on
Civil and Political Rights.
Adopted on 29 September 1994.
E/CN.4/1995/31/Add. 2
page 55
Decision No. 33/1994 (Tunisia)
Communication addressed to the Government of Tunisia on
12 November 1993.
Concerning : Tawfik Rajhi, on the one hand, and the Republic of
Tunisia, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it, and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with appreciation the information forwarded by
the Government concerned in respect of the case in question within 90 days of
the transmittal of the letter by the Working Group.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made the Working Group welcomes the
cooperation of the Government of Tunisia. The Working Group has forwarded the
reply of the Government of Tunisia to the source of the information, which has
so far not responded. The Working Group believes that it is in a position to
take a decision on the facts and circumstances of the case, in the context of
the allegations made and the response of the Government thereto.
5. According to the source, Tawfik Rajhi, a 32 year-old academic, was
arrested on 26 July 1993 and held incommunicado for 23 days, during which time
his family received no information concerning his place of detention (the
maximum legal duration of custody is 10 days)
6. Tawfik Rajhi was allegedly sentenced on 31 August 1993 to two years'
non-suspended imprisonment and two years' administrative supervision for
belonging to an unauthorized organization (the Islamist Al-Nahda movement)
7. According to the source, no evidence was produced in court concerning
Mr. Rajhi's membership of that movement and he was not charged with violence
or incitement to violence. Rajhi is said to have told the court that, during
his incommunicado detention, he had been ill-treated and compelled to sign a
statement while ignorant of its content. It is reported that no investigation
into his allegations was ordered by the court.
8. In its reply, the Government confirmed Mr. Rajhi's arrest, which it says
took place on 11 August 1993 (and not, as the source claims, on 26 July 1993)
Mr. Rajhi was brought before the Government Procurator's office in Tunis
on 18 August, charged and committed the same day under article 30 of the
Associations Act, which provides that “anyone participating in the direct or
indirect maintenance or re-establishment of associations recognized as not
existing or dissolved shall be punished by a term of one to five years'
imprisonment and/or a fine of 100 to 1,000 dinars”.
E/CN. 4/1995/31/Add.2
page 56
9. According to the Government, Tawfik Rajhi joined the unrecognized
Al-Nahda movement in 1982, participated in the Congress of that movement
in 1986 and in 1990 was the instigator of the policy of nationwide violence
practised by that movement.
10. For these acts, he was finally sentenced on 31 August 1993 to two years'
non-suspended imprisonment and two years' administrative supervision. On
8 October 1993 this sentence was upheld by a decision of the Tunis Court of
Appeal, which did, however, reduce the two-year prison term to one of
eight months.
11. The Government emphasizes that Mr. Tawfik Rajhi was assisted by lawyers
of his choosing, both at the first instance and the appeal stages, that the
hearings, including those before the court of appeal, were always held in
public and that foreign lawyers were admitted to the hearings as observers.
12. By letters of 1 June and 20 July 1994, the Government indicated that
Tawfik Rajhi had been released on 11 April 1994, the date of completion of the
sentence, and that he had left Tunisia for France, where he is now living.
13. After examining all the information available to it, the Working Group is
of the opinion that there are no special circumstances in the case which
warrant consideration by the Group of the nature of the detention of the
person released.
14. The Working Group, without prejudging the arbitrariness or otherwise of
the detention, decides to file the case of Mr. Tawfik Rajhi under
paragraph 14 (a) of its methods of work.
Adopted on 30 September 1994.
E/CN.4/1995/31/Add. 2
page 57
Interim decision No. 34/1994 (Indonesia)
Communication addressed to the Government of Indonesia on
6 December 1993.
Concerning : Xanana Gusmao, on the one hand, and the Republic of
Indonesia, on the other.
1. The Working Group on Arbitrary Detention, in accordance with the methods
of work adopted by it and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned the
above-mentioned communication received by it and found to be admissible, in
respect of allegations of arbitrary detention reported to have occurred.
2. The Working Group notes with appreciation the information forwarded by
the Government concerned in respect of the case in question within 90 days of
the transmittal of the letter by the Working Group.
3. (Same text as para. 3 of Decision No. 10/1994.)
4. In the light of the allegations made the Working Group welcomes the
cooperation of the Government of Indonesia. The Working Group transmitted the
reply provided by the Government to the source, which has forwarded its
comments in response. The Working Group believes that though it is not in a
position to take a decision on the facts and circumstances of the case, in the
context of the allegations made and the response of the Government thereto the
special features of this case require the Working Group to take an interim
decision as indicated hereinafter.
5. Certain relevant facts may be stated. Xanana Gusmao was allegedly
arrested on 20 November 1992. He was charged with leading an armed rebellion
against the Indonesian Government, disrupting national stability and with
illegal possession of fire arms in alleged violation of article 1 (1) of
Law No. 12 of 1951. After being tried in Dili, East Timor from 1 February to
21 May 1993 Xanana Gusmao was sentenced by the Dili District Court to
imprisonment for life. He was found guilty of attempted putsch (art. 106 of
the Indonesian Penal Code (IPC)), of armed rebellion (art. 108 IPC) and
conspiracy to commit a crime as stated in articles 104, 107 and 108 of the
IPC.
6. It is alleged that Xanana Gusmao was held in secret military custody for
17 days before the International Committee of the Red Cross (ICRC)
representatives were permitted to see him. During Gusmao's interrogation no
lawyer was allegedly allowed access to him. This is apparently in violation
of article 54 of the Indonesian Code of Criminal Procedure. It is further
alleged that through the Indonesian Legal Aid Foundation (LBH) obtained on
22 December 1992, a power of attorney from Gusmao's family sources, the
authorities prohibited the LBH access to him. In his defence statement,
Xanana Gusmao reportedly stated that his defence advocate, Mr. Sudjono, had
been appointed by the Strategic Military Intelligence Agency (BAIS) ; that he
E/CN. 4/1995/31/Add.2
page 58
himself wished to be represented by the LBH; that his letter appointing the
LBH was intercepted by the military authorities and that he was forced to
withdraw it and to give a letter appointing Mr. Sudjono as his defence
advocate.
7. As regards the trial itself it was alleged that at the concluding stages
of the trial, the Court interrupted Gusmao soon after he started reading out
his defence statement in Portuguese, despite the presence of interpreters in
the Court. He was allegedly prevented from speaking in his own defence. It
is further alleged that several witnesses for the prosecution were persons
under detention, either awaiting trial or convicted for their role in the
November 1991 demonstrations in Dili which led to suspicions that they may
have been testifying under pressure, intimidation in fear of reprisal against
their relatives or themselves, making their testimonies less reliable. Those
awaiting trial were said to be in a particularly delicate position, since
their statements in Gusmao's trial could be used against them in their own
trial.
8. The Government in its response of 26 January 1994 maintained that the
allegations submitted to the Working Group were untenable. According to the
Government, while awaiting trial, Xanana Gusmao was treated with consideration
in a manner consistent with international standards. The Government's
position is that when two legal aid organizations offered their services to
Mr. Gusmao he turned them down, accepting instead the services of Mr. Sudjono
of the Indonesian Advocates Association. Mr. Sudjono who acted as
Mr. Gusmao's defence counsel was apparently assisted by two other lawyers and
a legal adviser who is a specialist in criminal law. It is also stated that
during the trial Mr. Sudjono had been given full access to meet Mr. Gusmao.
9. The Government maintains that at the trial Mr. Gusmao was allowed to read
his own defence before the Court. The interruption in the reading of the
statement was because the Court viewed it as not being relevant to the legal
argument. The position of the Government is that what may be stated before
the court as part of the defence of the accused is what is termed as a “legal
defence” and not any statement which may be called a defence statement. Such
a statement must satisfy all the elements of a defence statement before being
allowed to be read as a defence statement. The Court, however, is said to
have considered Mr. Gusmao's defence statement before giving its verdict. The
allegation that several witnesses for the prosecution had testified under
pressure was also denied by the Government. During cross-examination of these
witnesses Mr. Gusmao is alleged to have admitted responsibility for various
crimes, including murder and robbery committed by him and his men, as well as
for illegal possession of arms.
10. The Government concludes that Xanana Gusmao's trial was carried out in
full conformity under the Indonesian applicable laws. That it was fair and in
accordance with the existing criminal procedure. There is, according to the
Government, no legal basis for questioning the verdict of the Indonesian
tribunal. Though Mr. Gusmao had a right of appeal to a high court, he chose
not to avail of the right and instead appealed to the President for clemency
which the Government informs was granted by reducing his prison sentence from
life imprisonment to 20 years in accordance with article 14 of the Indonesian
Constitution of 1945 and Law No. 3/1950.
E/CN.4/1995/31/Add. 2
page 59
11. The source whose comments were sought in the Government's response
reiterated its earlier position. In support thereof it is alleged that
Xanana Gusmao was not permitted to be represented by a lawyer of his choice,
the Indonesian Legal Aid Foundation. The LBH lawyers were apparently not
permitted to visit him, despite having been given a power of attorney by his
relatives. In a letter he wrote to the LBH on 30 November 1993 he is said to
have stated “I was prohibited from accepting your offer of assistance”. He is
said to have accepted LBH's offer, which is said to have been retained by the
authorities. Mr. Sudjono who ultimately defended Mr. Gusmao is said to have
been appointed six days before the trial. Inadequate translation services
apparently handicapped his defence. Not being fully conversant with either
the Indonesian language or English, he could only understand in a general way
the defence mounted by Mr. Sudjono. Even the clemency was apparently not
sought by Mr. Gusmao, but by Mr. Sudjono without his instructions. The
conduct of Mr. Sudjono, his defence lawyer, has also been questioned by
Mr. Gusmao, alleging that he and the prosecution were hand-in-glove.
12. Considering the nature of the allegations made and the response of the
Government, it is difficult for the Working Group to find a certain set of
facts which can be said to be undisputed. The Working Group cannot be
persuaded to proceed to arrive at a decision merely on the basis of suspicion.
There is no mechanism available within the Working Group to ascertain the
veracity of the allegations made or for that matter to doubt the truthfulness
of the Government's response. In this situation, any decision by the Working
Group would have to be based on assumptions, conjectures and surmises. The
communications of Xanana Gusmao subsequent to his trial and conviction if
their contents represent the correct state of affairs, give rise to misgivings
which can only be resolved pursuant to a detailed investigation. Individual
liberty is too precious to be jeopardized by obfuscating issues by allegations
and denials. It is therefore imperative that the true facts be investigated.
For that the cooperation of the Government of Indonesia is essential. We are
sure that it will on its part have no hesitation to permit the Working Group
to ascertain the true and correct facts.
13. It may be recalled that the Commission on Human Rights, by its
resolution 1993/97, urged, inter alia , the Government of Indonesia to invite
the Special Rapporteur on the question of torture, the Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions, the Working Group on Arbitrary
Detention and the Working Group on Enforced or Involuntary Disappearances to
visit East Timor and to facilitate the discharge of their mandates, and that,
of the four above-mentioned mechanisms, only the Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions has so far been invited by the
Government of Indonesia to visit East Timor.
14. It is therefore desired that the Government of Indonesia be requested to
permit a visit by the Working Group to Indonesia and East Timor to enable it
to ascertain the facts, in cooperation with the Government of Indonesia for
the purpose of arriving at a decision in the case of Xanana Gusmao. This will
be a step in the direction of enabling the Working Group to fulfil its mandate
and report to the Commission about the nature of Xanana Gusmao's detention.
Adopted on 30 September 1994.
