CCPR/C/123/D/2785/2016
Regulation for Execution, takes away the power of the State to commute death sentences.
Therefore, the Government has clearly violated article 6 (4) of the Covenant.
Issues and proceedings before the Committee
Consideration of admissibility
8.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 93 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
8.2
As required under article 5 (2) (a) of the Optional Protocol, the Committee must
ascertain that the same matter is not being examined under another procedure of
international investigation or settlement. The Committee notes the assertion of the State
party that the same matters were raised in relation to Mr. Humaam’s case before the Human
Rights Council special procedure mandate holders. The Committee refers to its
jurisprudence 15 in which it has found that extra-conventional procedures or mechanisms
established by the Human Rights Council, and whose mandates are to examine and report
publicly on human rights situations in specific countries or territories or cases of
widespread human rights violations worldwide, do not generally constitute an international
procedure of investigation or settlement within the meaning of article 5 (2) (a) of the
Optional Protocol. Accordingly, the Committee considers that it is not precluded from
examining the present case under this provision.
8.3
The Committee notes the State party’s objection regarding the non-exhaustion of
domestic remedies on the ground that the mediation process is effective and available until
the day of execution. It also notes the author’s reply that, since the court did not take Mr.
Ali’s family’s request to halt the execution into account, the mediation process is rendered
ineffective and, in any case, has been unreasonably prolonged, rendering domestic remedies
ineffective. The Committee further notes the author’s claims that the new rules on
clemency are opaque as to the President’s discretion and the Supreme Court’s powers, and
that they are discriminatory and thus ineffective. It further notes the State party’s argument
that the rules on clemency are clear and are in accordance with sharia.
8.4
The Committee considers that clemency is a discretionary remedy, which does not
need to be exhausted for the purposes of the Optional Protocol. It further notes that the
clemency process works in tandem with the mandatory mediation procedure under sharia,
and notes the lack of clear information about the ability of the President and the Supreme
Court to grant or uphold clemency in the face of mediation in cases involving intentional
killing, as well as the lack of clear information about the nature of the regulatory changes in
this regard. The Committee considers that, under these circumstances, the State party has
not demonstrated that the mediation process constitutes an available and effective remedy,
and that it is not precluded by article 5 (2) (b) of the Optional Protocol from proceeding to a
consideration of the merits of the present communication.
8.5
The Committee takes note of the State party’s argument that the communication is
inadmissible since it was submitted to the Committee by a third party and not by the alleged
victim himself. In this respect, the Committee recalls that rule 96 (b) of its rules of
procedure provides that a communication should normally be submitted by the individual
personally or by that individual’s representative, but that a communication submitted on
behalf of any alleged victim may be accepted when it appears that the individual in question
is unable to submit the communication personally. In the present case, the Committee notes
that the alleged victim was detained on death row, that the communication was submitted
on behalf of the alleged victim by his father and his counsel, who have presented a duly
signed letter of authorization and a power of attorney from the alleged victim for the
15
10
See Djebrouni and Berzig v. Algeria, para. 7.2, Bashasha and Bashasha v. the Libyan Arab
Jamahiriya (CCPR/C/100/D/1776/2008), para. 6.2, and Celis Laureano v. Peru
(CCPR/C/51/D/540/1993), para. 7.1.