directly appeal to the competent chamber of the
Tribunal Correctionnel (article 129, paragraph 5);
and if the request for release on bail is rejected, the
accused may appeal in accordance with the
provisions of article 180 of the Code of Criminal
Procedure.
Mr. Koné, nor on the applicable law governing his
detention from 1982 to 1986, from February to
April 1988 and in July 1990, nor sufficient
information on effective remedies available to him. It
further observed that the State party's explanation that
the period of detention 1982-1986 could not be
deemed arbitrary simply because the detention order
was issued by judicial authority did not answer the
question whether the detention was or was not
contrary to article 9. In the circumstances, the
Committee could not conclude that there were
effective remedies available to the author and
considered the requirements of article 5,
paragraph 2 (b), of the Optional Protocol to have been
met in this respect.
6.3 Upon concluding his investigations in the
case, the examining magistrate concluded that the
charges against Mr. Koné were substantiated and
accordingly, ordered his case to be tried by the
criminal court of Dakar. However, in the light of the
author's character and previous documented
behaviour, the magistrate considered it appropriate
to request a mental status examination and, pending
its results, ordered the author's provisional release on
9 May 1986, by judgment No. 1898. The judicial
procedure never led a judgment on the merits, as the
author fell under the provisions of Amnesty Law
No. 88-01 of 4 June 1988.
5.4 On 5 November 1991, therefore, the
Committee declared the communication admissible
in so far as it appeared to raise issues under articles 9
and 19 of the Covenant. The State party was
requested, in particular, to explain the circumstances
under which the author was detained from 1982 to
1986, in 1988 and in 1990, indicating the charges
against him and the applicable legislation, and to
forward to the Committee copies of the detention
order(s) issued by the examining magistrates and of
the decision of the Tribunal régional of Dakar of
18 April 1988.
6.4 In its additional comments on the merits,
dated 25 February 1994, the Senegalese Government
recounts the circumstances under which the author
was held in detention between 1982 and 1986. It
states that after his arrest, Mr. Koné was brought
before an examining magistrate who, applying the
provisions of article 101 of the Code of Criminal
Procedure, informed him, by way of an indictment,
of the charges entered against him, advised him of
his right to choose counsel from among the lawyers
listed in the Roster, and placed him under a detention
order on 28 January 1982. At the conclusion of a
legitimate preliminary investigation, he was
committed for trial by the examining magistrate,
pursuant to a committal order dated 10 September
1983. The State party specifies that the author "never
formulated a request for release throughout the
investigation of his case", as authorized by articles
129 and 130 of the Code of Criminal Procedure. The
State party concludes that "no expression of any
intention to obstruct his provisional release can be
deduced from these proceedings".
The State party's information on the merits and
author’s comments
6.1 In its submission on the merits, the State party
provides the information requested by the
Committee. As to the period of detention 1982-1986,
it observes that the author was detained pursuant to a
detention order (mandat de dépôt) issued by the
Senior Examining Magistrate of Dakar, after having
been formally charged with acts threatening national
security. This was duly recorded under No. 406/82
in the register of complaints of the prosecutor's
office of Dakar as well as under registry number
7/82 at the office of the examining magistrate. The
acts attributed to the author are an offence under
Section 80 (Chapter I) of the Senegalese Penal Code.
6.5 The State party stresses that after he was
committed to the competent court, the author
received a notice to appear before the court on
10 December 1983; the case was not, however, heard
on that date; a series of postponements followed.
The State party adds that the author "did not file a
request for provisional release until mid-May 1986, a
request which was granted pursuant to an
interlocutory judgment rendered on 9 May 1986".
6.2 The procedure governing provisional custody
is governed by article 139 of the Code of Criminal
Procedure, which provides for the issuance of a
detention order upon request of the Department of
Public Prosecutions. Paragraph 2 of this article
stipulates that a request for release on bail must be
rejected if the public prosecutor's office files a
written objection to the request. Notwithstanding, a
request for release on bail may at any moment be
formulated by the accused or his representative. The
magistrate is obliged to rule, by reasoned decision
(par ordonnance spécialement motivée) within five
days of the receipt of the request. If the magistrate
does not decide within the deadline, the accused may
6.6 With regard to the purpose of Amnesty Law
No. 88-01 of 4 June 1988, which was applied to the
author, the State party points out that the law does
not apply only to the Casamance events, even though
it was passed in the context of efforts to contain
them. It adds that "the detention period of the person
concerned coincided with a period of serious
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