inadmissible communication No. 354/1989, L. G. v.
Mauritius
amounts to no more than a personal conclusion
drawn from evidence available at the time.
Moreover, the State party observes, the Mauritian
courts acted properly in deciding to rely on the
evidence presented by the author’s own client
and that of other witnesses, after having directed
them properly on issues of law, and that the
object of the communication would convert the
Human Rights Committee into a Court of Appeal
on findings of fact.
The authors of the present individual opinion
endorse the Committee’s decision to declare this
communication inadmissible.
Nevertheless, they do not consider it possible
to single out, as is done in paragraph 5.3 of the text
of the decision, one provision of the Covenant
among those referred to by the author of the
communication in order to declare that the
communication is incompatible with the provisions
of the Covenant within the meaning of article 3 of
the Optional Protocol.
The issues before the Committee
5.1
Before considering any claims contained
in a communication, the Human Rights
Committee must ascertain, in accordance with
rule 87 of its rules of procedure, whether or not it
is admissible under the Optional Protocol to the
Covenant.
When it considers a communication under the
Optional Protocol, the Committee must ascertain
whether
the
communication
satisfies
the
requirements laid down successively in theprovisions of the Optional Protocol.
5.2
In respect of the author’s claim that
Mauritian Law does not provide for a retrial in
cases in which fresh material evidence becomes
available after the conclusion of the trial, the
Committee notes that no substantiation Of such
fresh material evidence has been made.
Therefore, the author has failed to advance a
claim under the Covenant within the meaning of
article 2 of the Optional Protocol.
In the case in question the complainant’s
allegations, both concerning the violations of which
he claims to have been a victim and concerning the
domestic remedies available to him to have those
allegations accepted, are not sufficiently well
substantiated to permit the conclusion that, in
submitting his communication, L.G. met the
conditions set out in article 2 of the Optional
Protocol.
5.3
As to the author’s claim that he has been
unjustly denied re-instatement on the Roll of
Barristers and that no remedy exists for this, the
Committee notes that the author failed to apply
for judicial review of the Chief Justice’s decision
of 17 November 1989. Until he avails himself of
the possibility of a judicial review, no issue
under article 14 of the Covenant arises. The
author’s claim is thus incompatible with the
provisions of the Covenant within the meaning of
article 3 of the Optional Protocol.
APPENDIX II
Individual opinion submitted by Mrs. Rosalyn Higgins
and Mr. Amos Wako, pursuant to rule 92, paragraph
3, of the Committee’s rule of procedure,
concerning the Committee’s decision to declare
inadmissible communication No. 354/1989, L. G. v.
Mauritius
Article 14, paragraph 6, of the Covenant
refers, inter alia, to what remedy is required when a
person’s conviction has been reversed or he has been
pardoned on the basis of new or newly discovered
facts.
6.
The Human Rights Committee therefore
decides:
(a)
That the communication is inadmissible;
(b)
That this decision shall be transmitted to
the State party and to the author.
Such reversal of conviction, or pardon, occurs
in various ways in different jurisdictions. We wish to
make it clear that the basis of the Committee’s
decision, as explained in paragraph 5.2, should not be
read as a finding by the Committee that article 14,
paragraph 6, necessarily requires an entitlement to
retrial.
APPENDIX I
Individual opinion submitted by Ms. Christine
Chanet and Mr. Birame Ndiaye,
pursuant to rule 92, paragraph 3, of the
Committee’s rules of procedure,
concerning the Committee’s decision to declare
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