7.2 Accordingly, the Committee has considered
the present communications in the light of all the
information made available to it by the parties, as
required under article 5, paragraph 1, of the Optional
Protocol.
6.2 The Committee noted the authors' claims
under article 9 and observed that their arrest and
detention occurred prior to the entry into force of the
Optional Protocol for Togo (30 June 1988). It further
noted that the alleged violations had continuing
effects after the entry into force of the Optional
Protocol for Togo, in that the authors were denied
reinstatement in their posts until 27 May and
1 July 1991 respectively, and that no payment of
salary arrears or other forms of compensation had
been effected. The Committee considered that these
continuing effects could be seen as an affirmation of
the previous violations allegedly committed by the
State party. It therefore concluded that it was not
precluded ratione temporis from examining the
communications and considered that they might raise
issues under articles 9, paragraph 5; 19; and 25 (c),
of the Covenant.
7.3 The authors contend that they have not been
compensated for the time they were arbitrarily
arrested, contrary to article 9, paragraph 5. The
procedures they initiated before the Administrative
Chamber of the Court of Appeal have not, on the
basis of the information available to the Committee,
resulted in any judgment or decision, be it
favourable or unfavourable to the authors. In the
circumstances, the Committee sees no reason to go
back on its admissibility decision, in which it had
held that recourse to the Administrative Chamber of
the Court of Appeal did not constitute an available
and effective remedy. As to whether it is precluded
ratione temporis from considering the authors' claim
under article 9, paragraph 1, the Committee wishes
to note that its jurisprudence has been not to
entertain claims under the Optional Protocol based
on events which occurred after entry into force of the
Covenant but before entry into force of the Optional
Protocol for the State party. Some of the members
feel that the jurisprudence of the Committee on this
issue may be questionable and may have to be
reconsidered in an appropriate (future) case. In the
instant case, however, the Committee does not find
any elements which would allow it to make a finding
under the Optional Protocol on the lawfulness of the
authors' arrest, since the arrests of the authors took
place in September and December 1985,
respectively, and they were released in April and
July 1986, respectively, prior to the entry into force
of the Optional Protocol for Togo on 30 June 1988.
Accordingly, the Committee is precluded ratione
temporis from examining the claim under article 9,
paragraph 5.
6.3 The Committee took note of the State party's
argument that domestic remedies had not been
exhausted, as well as of the authors' contention that
the procedure before the Administrative Chamber of
the Court of Appeal was ineffective, because no
progress in the adjudication of their cases was made
after their reinstatement under the Amnesty Law,
and that indeed said cases appeared to have been
filed. On the basis of the information before it, the
Committee did not consider that an application to the
Administrative Chamber of the Court of Appeal
constituted an available and effective remedy within
the meaning of article 5, paragraph 2 (b), of the
Optional Protocol.
6.4 On 30 June 1994, therefore, the Committee
declared the communication admissible in as much
as it appeared to raise issues under articles 9,
paragraph 5; 19; and 25 (c), of the Covenant. It
further decided, pursuant to rule 88, paragraph 2, of
its rules of procedure, to deal jointly with the
authors' communications.
7.4 In respect of the claim under article 19, the
Committee observes that it has remained uncontested
that the authors were first prosecuted and later not
reinstated in their posts, between 1986 and 1991,
inter alia, for having read and, respectively,
disseminated information and material critical of the
Togolese Government in power and of the system of
governance prevailing in Togo. The Committee
observes that the freedoms of information and of
expression are cornerstones in any free and
democratic society. It is in the essence of such
societies that its citizens must be allowed to inform
themselves about alternatives to the political
system/parties in power, and that they may criticize
or openly and publicly evaluate their Governments
without fear of interference or punishment, within
the limits set by article 19, paragraph 3. On the basis
of the information before the Committee, it appears
that the authors were not reinstated in the posts they
Examination of the merits
7.1 The deadline for the submission of the State
party's observations under article 4, paragraph 2, of
the Optional Protocol expired on 10 February 1995.
No submission has been received from the State
party, in spite of a reminder addressed to it on
26 October 1995. The Committee regrets the absence
of cooperation on the part of the State party, as far as
the merits of the authors' claims are concerned. It is
implicit in article 4, paragraph 2, of the Optional
Protocol that a State party must furnish the
Committee, in good faith and within the imparted
deadlines, with all the information at its disposal.
This the State party has failed to do; in the
circumstances, due weight must be given to the
authors' allegations, to the extent that they have been
adequately substantiated.
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