CCPR/C/115/D/2005/2010
rather than the police being required to prove that he was still a threat. Furthermore, there
was evidence available on the public record that indicated that the author had renounced
violence. The author concludes that the imposition of a control order on the basis of the
same conduct that sustained his conviction and imprisonment is contrary to the ne bis in
idem principle.
Remedies sought
52.
The State party should be urged to: (a) publicly acknowledge its participation in the
author’s retrospective punishment, apologize to him for his retroactive punishment and
provide him with full and prompt compensation; (b) eliminate any further consequences
under Australian law that may follow from the author’s retroactive punishment; (c) request
the United States authorities to formally overturn the author’s conviction under United
States law and to nullify the plea agreement; (d) acknowledge that the author’s detention in
Australia was unlawful, apologize for it and provide him with compensation; (e)
acknowledge that Australia violated the author’s rights by adopting the plea agreement by
which his conviction was secured and/or aiding and abetting the United States in the offer
of that agreement; (f) apologize to the author for violating his rights in connection with the
plea agreement; (g) provide an undertaking to the author that it does not recognize the
validity of his plea agreement and will not seek to enforce it in Australia; (h) request the
Government of the United States to overturn the author’s conviction before a United States
Military Commission; (i) acknowledge that Australia violated the author’s rights by
participating in his unlawful detention, interrogation and treatment at Guantanamo Bay,
apologize to him and provide him with compensation; (j) initiate and conduct an
independent investigation into the author’s allegations of torture and ill-treatment; (k)
acknowledge that Australia violated the author’s rights by imposing a control order,
apologize to him and provide him with compensation; and (l) amend its legislative scheme
under the Criminal Court Act 1995 regarding control orders to ensure compliance with its
obligations under the Covenant.
State party’s observations on admissibility and author’s comments thereon
53.
The State party submitted observations on admissibility on 14 October 2011 and the
author replied to them on 17 February 2012. Additional submissions from both parties were
made subsequent to those dates. The main arguments put forward by the parties are
summarized as follows. Both indicate that arguments raised by the other party not expressly
addressed in their respective submissions should not be taken to be accepted.
(a)
The communication expressly or impliedly alleges breaches of the Covenant by the United
States
State party’s observations
54.
The State party recalled the principle recognized by the International Court of
Justice in its judgment on the Case of the monetary gold removed from Rome in 194310 that
a court cannot decide upon an issue where it is required first to make a determination as to
the lawfulness of actions of a State that has not consented to the exercise of jurisdiction by
the court. The Court has subsequently found that, consistent with that principle, a claim will
be inadmissible if it requires the Court to first rule on the actions of or make a
determination on the international responsibility of a State that has not consented to
10
Case of the monetary gold removed from Rome in 1943 (preliminary question) (Italy v. France,
United Kingdom of Great Britain and Northern Ireland and United States of America), Reports of
Judgments, Advisory Opinions and Orders, judgment of 15 June 1954, I.C.J. Reports 1954, p. 19.
23
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