5.1 By a note dated 1 October 1980, the State party submitted further information. 5.2 The State party maintained that the state of siege affected the present case, so far as concerns the situation of Justo Germán Bermúdez and Martha Isabel Valderrama, by reason of the fact that Legislative Decree No. 1923 of 1978 increased the penalty for the crime of rebellion and also because both the aforesaid Decree and Legislative Decree No. 2260 of 1976 as­ cribed responsibhity for the hearing of cases involving offences against the consthutional régime and against the security of the State to the mihtary criminal courts. It added that with regard to the proceedings which Dr. Orlando Fais Borda and Mrs. Maria Cristina Salazar de Fais Borda could institute, the provisions enacted by virtue of the state of siege had no effect. enforcement of the detention order issued by the military authorities without due process of law; (c) It is not possible to bring an action for arbitrary arrest before an ordinary court against the military investigators who ordered the ar­ rest of Mr. and Mrs. Fais Borda. The handhng of such a charge would fall to the military authorities, as is made clear in article 309 of the Code of Military Criminal Justice: "As a general rule, accused per­ sons shall be tried by members of the branch of the armed forces to which they belong." In other words, any complaint lodged against military personnel for abuse of authority or arbitrary detention falls within the direct jurisdiction of the military authorities or the military prosecutor, both of whom are under the orders of the Government of Colombia; (d) In the unUkely event of military criminal proceedings being in­ stituted against the officers responsible for the arbitrary detention of Mr. and Mrs. Fais Borda, it would not be possible to bring a civil suit for damages on behalf of the victims, since the offence in question is supposedly of an essentially military nature ...; (e) Article 9, paragraph 5 of the Covenant states: "Anyone w h o has been the victim of unlawful arrest or detention shall have an enforceable right to compensation." N o provision is made for such action in Colombian law; 5.3 The State party reiterated the information sub­ mitted (see para. 3.4) concerning the competent authorities before which Dr. Fais Borda and his wife could file complaints with respect to an alleged arbitrary detention, and the proceedings they could institute for the recovery of damages. It added that a civh action to obtain compensation can be brought in the context of the military criminal proceedings for common-law of­ fences. If the injured parties did not take part in the criminal proceedings and do not agree with the judge­ ment so far as concerns compensation, they can bring an appropriate action before a civh court. They can also appeal to the administrative courts, on the ground of State liabhity, if in fact it is confirmed that arbitrary detention took place. (/) The Government of Colombia cites article 67 of the Ad­ ministrative Code, which states: "In the event of violation of a right established or recognized by a civil or administrative regulation, the injured party may request not only that the act be annulled but also that his right be restored." In the case of Mr. and Mrs. Fais Borda, there has been no ruling to the effect that arbitrary detention took place or that, as a result of such an unlawful act, the State has a duty to compensate the victims. However, the time-limit for bringing such a hypothetical administrative action has expired, by virtue of the pro­ visions of article 83 of the Code in question which states that an action (not a remedy) "intended to obtain compensation for infringement of individual rights shall, in the absence of any legal provision to the con­ trary, lapse four months after the date of pubHcation, modification or execution of the act, or the occurrences or administrative procedure giving rise to the action. 6.2 In his submission of 20 October 1980 the author informed the Committee that in the case of Justo Germán Bermúdez and Martha Isabel Valderrama, sentenced to imprisonment on 3 April 1979 by the Sum­ mary Military Court, the sentences had been upheld by the Higher Military Court. 5.4 The State party informed the Committee that the case against Germán Bermúdez Gross and Martha Isabel Valderrama for the crime of rebelhon was in the offices of Dr. Roberto Ramiraz Laserna, Judge of the Higher Military Tribunal, awaiting a decision by the court of second instance. The apparent delay in reaching a decision on the appeal was due to the heavy workload of the Tribunal, which has to deal whh many cases. 7.1 The Committee found, on the basis of the infor­ mation before it, that it was not precluded by article 5 (2) {a) of the Optional Protocol from considering the communication since there was no indication that the same matter had been submitted under another pro­ cedure of international investigation or settlement. 7.2 As to the question of exhaustion of domestic remedies, in the case of Mr. and Mrs. Fais Borda, the Committee considered whether the communication should be declared inadmissible because of nonexhaustion of domestic remedies. However, the essence of this complaint was that Decree No. 1923 deprived them of safeguards guaranteed by articles 9 and 14 of the Covenant and that in these circumstances the domestic remedies for arbitrary arrest would have been of no avail. The Committee considered that this was a question which it could effectively examine only in the context of the application of the Decree generally to the case of Mr. and Mrs. Fais Borda. 6.1 Commenting on the State party's submission, the author claimed that as far as the specific cases of the arbitrary detention of Mr. and Mrs. Fais Borda were concerned, ah domestic legal remedies had been ex­ hausted, and no valid remedy existed for claiming damages on account of this arbitrary detention. The arguments were as follows: (a) Without Legislative Decree N o . 1923 of 1978 (Statute of Secur­ ity), neither the arbitrary detention of Mr. and Mrs. Fais Borda, nor that of thousands of other victims, would ever have occurred. Mr. and Mrs. Fais Borda were deprived not only of the guarantee laid down in article 9, paragraph 3, of the Covenant, but also the remedy of habeas corpus guaranteed by article 9, paragraph 4 of the Cov­ enant and by article 417 of the Code of Criminal Procedure of Colom­ bia, which states: " A n y person deprived of his freedom for more than 48 hours may, if he considers that a breach of the law has taken place, apply to a municipal, criminal or combined criminal/civil court judge for habeas corpus 7.3 In the case of Justo Germán Bermúdez and Martha Isabel Valderrama, the Committee, having been informed by the author on 20 October 1980 that the Higher Military Tribunal had upheld the sentences of (b) With the decision of the Higher Military Tribunal, which is not open to appeal, domestic legal remedies have been exhausted. However, that decision states, not that a case of arbitrary detention had taken place, but that there was no justification for the continued 141