that “investigating judge and judges making up the court hearing the case are officers appointed by the Ministry of Defence” and that the president of the court, although himself a civilian judge, is also appointed by the Ministry of National Defence. In its response, on which the author makes no comment, the Algerian Government states that “the military tribunal is composed of three judges appointed by an order issued jointly by the Minister of Justice, Garde des Sceaux, and the Minister of Defence. It is presided over by a professional judge who sits in the ordinary-law courts, is subject by regulation to the Act on the status of the judiciary, and whose professional career and discipline are overseen by the Supreme Council of Justice”. In another context, the author states that “it is the Minister of Defence who initiates proceedings, even, as in the current instance, against the wishes of the head of Government” and he explains that this minister also has the power to interpret legislation relating to the competence of the military tribunal. Without commenting on these allegations, the State party makes reference, in general terms, to the application of the Criminal Code, the Code of Criminal Procedure and the Code of Military Justice. The Committee should have given due attention to these issues, just as it should have dwelt on a number of other points, such as the reasons for Mr. Madani’s arrest, which are viewed in directly opposite ways by the author and by the State party—without any supporting facts or documents—and have submitted all elements of the case file to a more rigorous examination. In another context, the author states that “minimum standards of fairness were not observed. Abbassi Madani was sentenced by an incompetent, manifestly partial and unfair tribunal”. The State party asserts the opposite, without eliciting further comments from the author. It states that the military court was created by law, that its competence was not challenged before the trial judge and was only called into question the first time with the Supreme Court, which rejected the challenge. The State also indicates that the charges laid against Mr. Madani were notified to him at the time of his arrest, that he had the assistance of counsel during the investigation and the trial, that he availed himself of the remedies provided under law, that the trial, contrary to the allegations by the author, was public, that Mr. Madani’s refusal to appear was dealt with in compliance with the procedures provided by law and that he was kept abreast of all the procedural formalities relating to the trial hearings and reports were drawn up of all such formalities. All these arguments should similarly have been considered by the Committee and its decision to reject them on the grounds that the State has failed to demonstrate that it has developed acceptable alternatives to military courts was not the soundest decision in legal terms. Attention is also drawn, in respect of the issue of the impartiality of justice, to the general rule that it is up to the appeal courts of States parties to the Covenant to consider the facts and the evidence in a particular case and that it is not, in principle, the business of the Committee to censure the conduct of hearings by a judge except where it 142 142 might have been established that this was tantamount to a miscarriage of justice or that the judge had manifestly breached his obligation of the impartiality (see the Committee’s decision in matter No. 541/1993: Simms v. Jamaica, April 1995, para. 6.2). Paragraph 8.7 of the Committee’s Views leaves certain essential questions unanswered. I feel duty-bound to point out that, on the one hand, the Committee has exceeded its remit in insisting that the State justify its choice of court from among a number of options available to it and, on the other, that it has not done what it was called upon to do and which was incumbent upon it with regard to determining whether or not the guarantees of full protection of the rights of the accused were duly upheld. (Signed): Abdelfattah Amor Individual opinion of Committee member Ahmed T. Khalil As I have indicated in the plenary meeting of the Committee in New York on 28 March 2007, I cannot accept the views spelled out in paragraph 8.7 of the communication 1172/2003 Abbassi Madani v. Algeria which finds the State party in violation of article 14 of the Covenant. The reasons for taking this position on my part are based on the following considerations. It is quite clear that the Covenant does not prohibit the establishment of military courts. Furthermore, paragraph 4 of general comment No. 13 on article 14, while clearly stating that the trial of civilians by such courts should be very exceptional, stresses, I believe more importantly, that the trying of civilians by such courts should take place under conditions which genuinely afford the full guarantees stipulated in article 14. In that light the issue before the Committee in the case at hand is whether those guarantees were duly and fully respected. In other words the concern of the Committee, as I see it, is to ascertain whether the trial of Mr. Abbassi Madani meets the fundamental guarantees of equitable, impartial and independent administration of justice. The author claims that the minimum standards of fairness were not observed and that Mr. Abbassi Madani was sentenced by an incompetent, manifestly partial and unfair trial. For its part the State party informs that Mr. Abbassi Madani was prosecuted and tried by a military tribunal whose organization and competence are laid down in Ordinance No. 71-28 of April 1971 and that, contrary to the allegations by the author, a military tribunal is competent to try the offences of which Mr. Abbassi Madani was accused. The State party also points out that the competence of the military tribunal was not challenged by Mr. Abbassi Madani before the trial judges. It was called into question for the first time with the Supreme Court which rejected the challenge. In addition the State party indicated inter alia that upon his arrest Mr. Abbassi Madani was informed by the investigating judge of the charges against him, that he was assisted during the investigation and trial and in the Supreme Court by a large number of lawyers and that