conditions which genuinely afford the full
guarantees stipulated in article 14. It is incumbent on
a State party that does try civilians before military
courts to justify the practice. The Committee
considers that the State party must demonstrate, with
regard to the specific class of individuals at issue,
that the regular civilian courts are unable to
undertake the trials, that other alternative forms of
special or high-security civilian courts are
inadequate to the task and that recourse to military
courts is unavoidable. The State party must further
demonstrate how military courts ensure the full
protection of the rights of the accused pursuant to
article 14. In the present case the State party has not
shown why recourse to a military court was required.
In commenting on the gravity of the charges against
Abbassi Madani it has not indicated why the
ordinary civilian courts or other alternative forms of
civilian court were inadequate to the task of trying
him. Nor does the mere invocation of domestic legal
provisions for the trial by military court of certain
categories of serious offences constitute an argument
under the Covenant in support of recourse to such
tribunals. The State party’s failure to demonstrate
the need to rely on a military court in this case
means that the Committee need not examine whether
the military court, as a matter of fact, afforded the
full guarantees of article 14. The Committee
concludes that the trial and sentence of Abbassi
Madani by a military tribunal discloses a violation of
article 14 of the Covenant.
8.8 Concerning the alleged violation of article 19,
the Committee recalls that freedom of information
and freedom of expression are the cornerstones of
any free and democratic society. Such societies in
essence allow their citizens to seek information
regarding ways of replacing, if necessary, the
political system or parties in power, and to criticize
or judge their Governments openly and publicly
without fear of reprisal or repression by them,
subject to the restrictions laid down in article 19,
paragraph 3, of the Covenant. With regard to the
allegations that Abbassi Madani was arrested and
charged for political reasons, the Committee notes
that it does not have sufficient information to
conclude that there was a violation of article 19 in
respect of the arrest and charges brought against him
in 1991. At the same time, although the State party
has indicated that the author is enjoying all his rights
and has been resident abroad since that time, and
notwithstanding the author’s allegations in this
regard, the Committee notes that it does not have
sufficient information to conclude that there was a
violation of article 19 in respect of the alleged ban
imposed on Abbassi Madani from making
statements or expressing an opinion during his house
arrest.
140
140
9.
The Human Rights Committee, acting under
article 5, paragraph 4, of the Optional Protocol, is of
the view that the facts before it disclose violations by
the State party of articles 9 and 14 of the Covenant.
10. In accordance with article 2, paragraph 3, of
the Covenant, the State party is under an obligation
to provide an effective remedy for Abbassi Madani.
The State party is under an obligation to take the
necessary steps to ensure that the author obtains an
appropriate remedy, including compensation. In
addition, the State party is required to take steps to
prevent further occurrences of such violations in the
future.
11. Bearing in mind that, by becoming a State
party to the Optional Protocol, the State party has
recognized the competence of the Committee to
determine whether there has been a violation of the
Covenant or not and that, pursuant to article 2 of the
Covenant, the State party has undertaken to
guarantee all individuals within its territory and
subject to its jurisdiction the rights recognized in the
Covenant, and to provide an effective and
enforceable remedy when it has been determined
that a violation has occurred, the Committee wishes
to receive from the State party, within 90 days,
information about the measures taken to give effect
to the Committee’s Views. It also requests the State
party to publish the Committee’s Views.
APPENDIX
Individual opinion (dissenting) by Committee member
Abdelfattah Amor
In this matter, the Committee, after affirming, in a
style and language that it does not customarily employ,
that:
“The State party’s failure to demonstrate the need
to rely on a military court in this case means that
the Committee need not examine whether the
military court, as a matter of fact, afforded the full
guarantees of article 14.”
concludes that:
“the trial and sentence of Abbassi Madani by a
military tribunal discloses a violation of article 14
of the Covenant”.
I cannot associate myself with the approach
followed and the conclusion underlying this paragraph 8.7
of the Committee’s Views. I believe that they exceed the
scope of article 14 and deviate from the general comment
on this article.
Article 14 is essentially concerned with guarantees
and procedures for the equitable, independent and
impartial administration of justice. It is exclusively in that
context that the body which administers justice is cited,
and then only in the first paragraph of the article: “All
persons shall be equal before the courts and tribunals. …
everyone shall be entitled to a fair and public hearing by a
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