was offered early release from 27 June 1994, that is three months prior to his release date. However, he declined to leave prison as he had nowhere to live. He was subsequently released on 22 September 1994, four days early. brought before the Special Criminal Court to be tried on such offence. The author was charged with possession of explosive substances for an unlawful object, a scheduled indictable offence in accordance with section 47 (1) of the Act. 6.4 The State party submits that transfers from a closed to an open prison are benefits accorded certain prisoners on the basis of their records, home addresses and other relevant considerations, but that it is not a right to which all prisoners are equally entitled. Reference is made to the Judgment of the European Court of Human Rights in the Ashingdane case3. 7.2 A panel of nine judges, appointed by the Government and all being judges of the High Court, Circuit Court or District Court, is available to hear cases in the Special Criminal Court. The designation of members to hear a case is exclusively a matter for the judges of the panel to decide. The State party strongly refutes any suggestion that the judges of the Special Criminal Court lack independence or would have been biased against the author. 6.5 It is further submitted that the author was not treated differently from others, but that the decision to keep the author in a closed institution in Dublin was taken, as were the decisions to transfer two of his co-accused to an open institution outside Dublin, by reference to their personal and family circumstances and were intended to facilitate communication between the detainees and persons close to them. Moreover, it is submitted that, might the Committee nevertheless find that the author was treated differently, this treatment was based on reasonable and objective criteria and did not amount to discrimination. 7.3 The State party explains that the decision to charge the author with the offence in question, as well as the decision to refer the author's case to the Special Criminal Court, was based on an assessment of the available evidence that was made known to the Director of Public Prosecutions by the Irish police. 7.4 The State party explains that the institution of the Special Criminal Court can be challenged since it is subject to constitutional scrutiny. It is also possible to challenge the constitutionality of various aspects of the legislation relating to the Special Criminal Court. Several such challenges have been undertaken. The author however did not attempt to initiate any proceedings in this respect. 6.6 The State party argues that the communication is inadmissible under article 3 of the Optional Protocol, for being incompatible with the provisions of the Covenant. Further, it is argued that the author's claim is inadmissible for non-exhaustion of domestic remedies, since it was open to the author to seek judicial review of the order made by the minister of Justice to transfer him to Whatefield Detention Centre in Dublin and not to an open prison. It was also open to the author to institute proceedings for alleged breach of constitutional rights, since the Constitution in article 10.1 protects the right of all citizens to be held equal before the law. It is submitted that the author never availed himself of any of the remedies open to him. 7.5 The State party explains that it is also possible to challenge the referral of a case to the Special Criminal Court through judicial review of the Director of Public Prosecutions' decision. However, the relevant case law all relates to situations where the accused had been charged with a non-scheduled offence and the Director decided that he or she be tried before the Special Criminal Court. In availing himself of this remedy, the author would have had to show that the Director of Public Prosecutions had acted with mala fides. 7.6 The State party reiterates that the communication should be declared inadmissible. 7.1 As regards the procedures of deciding whether a case will be tried before a Special Criminal Court, the State party explains that the Director of Public Prosecutions decides in accordance with law whether a case will be tried by the ordinary Criminal Courts or by the Special Criminal Court under part V of the Offences against the State Act. The Director is independent of the Government and the police in the discharge of his functions. The Offences against the State Act provides for certain offences to be scheduled under that Act. Where a person is charged with a scheduled offence, the Director of Public Prosecutions, under section 47 (1) of the Act, may have that person 3 Author's comments on the State party's submission 8.1 In his comments on the State party's submission, the author emphasizes that his main complaint is that the Special Criminal Court was illegal, because it was set up without making an application under article 4, paragraph 3, of the Covenant. He contends that there is no escaping a conviction before the Special Court and reiterates that when he pleaded not guilty, his solicitor told him that his sentence would be lower with a guilty plea, upon which he changed his plea. 8.2 The author reiterates that he was not allowed to leave prison in time to visit his dying sister in (14/1983/70/106) 8