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Cases Decided by the ICJ

1) Herbert Schmildl (Sole heir of the Expropriated Property) vs. Germany;

Facts:

The complainant’s Uncle was an owner of an agricultural real estate in the region of
Sudentenland, which was incorporated in tot he territory of the German Reich. The estate was
occupied by the Red Army during the WWII and subsequently confiscated by the post-war
Czechoslovak administration. In 1946, the complainant claimed that he and his family performed
forced labor on the farm and was later on expelled from Czechoslovakia without compensation
for the lost property.

On 10 April 1997; He filed a complaint before the European Court of Human Rights
(Application No. 38252/97), claiming a violation by Germany of his right to life (article 2),
freedom from torture and ill-treatment (article 3), freedom from slavery (article 4), right to
liberty and security (article 5), right to a fair trial (article 6) and right to an effective remedy
(article 14) of the European Convention on Human Rights, as well as of his right to property
(article 1 of the First Protocol) and of his rights to be protected against an expulsion of
nationals (article 3) and the collective expulsion of aliens (article 4) of the Fourth Protocol to
the Convention, alleging that Germany had failed to espouse his restitution claim against the
Czech Republic by exercising its diplomatic protection.

Unfortunately, On 13 June 2000, the Court declared his application inadmissible under article
35(4) of the European Convention, arguing that it did “not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its Protocols.”

Author’s Arguments:

1) After failed attempts to obtain relief from their Courts and the continued discriminating and
detrimental utterances by the German government, the complainant filed the instant case
alleging a violation of his right under article 26 “to equal and effective legal (diplomatic)
protection against discrimination”, based on his Sudeten German descent. He claims that the
State party is obliged to take protective steps for all ethnic groups and is not allowed to
discriminate against certain groups and refuse to protect them on account of their race, colour
or membership of a particular ethnic minority. He refers in particular to the decision of the
Münster Upper Administrative Court, which was confirmed by the statements made by
Chancellor Schröder in 1999, the text of the 1997 Joint Declaration, and the letter from the
Federal Government received in 1999. In the complainant’s view, these statements prevent
him from exercising his economic, social and cultural rights, as mentioned in the Covenant’s
Preamble, by rejecting his claim for property in the Czech Republic.

2) He also alleges a violation of article 2 since the State party refused to afford him protection
against a violation of his fundamental human rights by another State party. Finally, he refers
to violations of articles 6, 7, 8, 9, 10, 12, 13, 14 and 17 of the Covenant for his family, in light
of their expulsion due to their national descent, although he does not bring the communication
in their name. The complainant argues that as a result of the acts of genocide committed
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during the expulsion, the State party is obliged to support the claims of restitution of the
Sudeten German expellees against the Czech State.

State Party’s Arguments:

1) On 18 January 2007, the State party contested the admissibility of the communication on
several grounds. It invokes the reservation made by Germany in relation to article 5,
paragraph 2 a) of the Optional Protocol, to the effect that;

“the competence of the Committee shall not apply to communications

a) which have already been considered under another procedure of international investigation
or settlement, or

b) by means of which a violation of rights is reprimanded having its origin in events occurring
prior to the entry into force of the Optional Protocol for the Federal Republic of Germany, or

c) by means of which a violation of article 26 of the [Covenant] is reprimanded, if and insofar

2) The State party submits that the communication is inadmissible by virtue of the
reservations, as the case has already been considered by another international instance
(theEuropean Court of Human Rights), and the author complains of a violation of article 26
but does not refer to any rights protected by the Covenant.

3) On the validity of the reservation and the author’s claim that article 25 of the German Basic
Law renders it invalid, the State party submits that this provision provides that the common
rules of international law are part of German Federal Law and take precedence over ordinary
laws.

4) The State party submits that the individual complaints procedure under the European
Convention on Human Rights is a procedure within the meaning of the reservation and article
5, paragraph 2 a), of the Optional Protocol.

5) The author’s argument on the political speech made by Federal Chancellor Schröder on 8
March 1999, does not add any new aspect to the facts which were presented to the European
Court of Human Rights. As to the suggestion that the alleged failure of the State party is a
continuous violation of his rights and can therefore be raised again under the Optional
Protocol, even after the European Court of Human Rights has decided on his claim, is a
misinterpretation of the term “the same matter”.

6) With regard to the examination of the same subject matter, it is not a prerequisite to an
examination within the meaning of the reservation that the European Court of Human Rights
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first declares an application to be admissible and initiates an examination of the merits in a

7) In addition, the State party submits that the communication should be inadmissible as it
does not disclose a violation of rights protected by the Covenant. The author alleges a
violation of article 26, but fails to show with respect to which right the State party is supposed
to have acted in a discriminatory way.

8) Finally, the State party submits that the event on which the communication is based
occurred long before the Covenant came into force for the State party. The real cause of the
dispute is the expropriation of the author’s alleged property under the 1945 Beneš decrees,
at a time in which the Covenant had not even been drafted. The author cannot rely on the
rights set out in the Covenant to claim compensation for any damage he may have suffered
prior to its entry into force. Thus, his claim is also inadmissible ratione temporis.

Issue:

Whether or not the Communication is admissible under the Optional Protocol to the Covenant.

Decision:

No. The Committee recalls that the right of diplomatic protection under international law is a
right of states, not of individuals. States retain the discretion as to whether or not and in which
circumstances to grant and exercise this right. Whilst the Committee does not preclude that
a denial by a State party of the right of diplomatic protection could amount, in very exceptional
cases, to discrimination, it recalls that not every differentiation of treatment can be considered
discrimination within the meaning of article 26, and that this provision does not prohibit
differences of treatment which are based on objective and justifiable criteria. In this instance,
the author has not shown that persons of Sudeten German descent have been treated in a
discriminatory or arbitrary manner incompatible with the legitimate exercise of State discretion
in espousing claims under the State party’s right of diplomatic protection. In particular, he had
failed to show that the decision of the State party not to exercise its right to diplomatic
protection in his case was based not on legitimate considerations of foreign policy but
exclusively on his Sudeten German descent.

The Committee concludes that the author has not sufficiently substantiated, for purposes of
admissibility, his claim that he was a victim of prohibited discrimination based on his Sudeten
German descent. It follows that this part of the communication is inadmissible under article 2
of the Optional Protocol. In these circumstances, the Committee need not address the issue
of applicability of part c) of the State party’s reservation related to article 26.

The Committee has noted the author’s reference to articles 2, 6, 7, 8, 9, 10, 13, 13, 14 and
17 of the Covenant. He refers to alleged violations of these provisions in relation to his family,
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although he does not advance claims on behalf of members of his family. The Committee
considers that the author has not invoked these provisions as free-standing violations of the
Covenant, but merely by way of background to his claim of his claim under article 26. Even if
they were to be considered as free-standing claims, they have not been substantiated, for
purposes of admissibility, and would be inadmissible under article 2 of the Optional Protocol.

Dayron Abdurakhmanov vs. Uzbekistan; Communication No. 2295/2013, 29 March 2019

Facts:

The author of the communication is Davron Abdurakhmanov, an Uzbek national who is writing on
behalf of his father, Salijon Abdurakhmanov, also an Uzbek citizen, who was, at the time of
submission, imprisoned in Uzbekistan after being convicted on drug-related charges.

Author’s Arguments:

1) The author claims that his father’s right to be free from arbitrary arrest or detention under article
9(1) and (4) of the Covenant has been violated. The violations of his father’s fair trial rights are of
such gravity as to give the deprivation of liberty of the victim an arbitrary character.

2) The author alleges a violation of article 14, paragraph 1 given the alleged failure of the trial,
appeal and supervisory review courts to prevent serious procedural and substantive mistakes
which according to the author indicate the bias of the courts.

3) The author argues that his father’s rights under article 14 were further violated as his right to
be presumed innocent was not respected. The author advances that the court convicted his father
on charges of drug possession with the intent to sell without any discussion of how it was
established that his father was attempting to sell drugs. Furthermore, the trial court denied the
defense’s requests to conduct forensic examinations to establish fingerprints on the car and bags
or take into consideration forensic examination results that showed the victim’s innocence

4) The author further argues that his father was a victim of a violation of article 14, paragraph 5
given the appeals courts failed to provide duly reasoned judgments and address the substance
of the appeals. The author argues that the Appeals Board decision of 19 November 2008 merely
restated the lower court’s reasoning without inquiring into the substantive discussion of the trial
court’s decision and the claims raised by the defense.

5) The author also claims that his father’s right to freedom of expression under article 19,
paragraph 2 of the Covenant was violated, as during the search of his house, printed, audio and
video materials related to his journalistic work and human rights activism were seized.
Furthermore, the entire arrest, trial and conviction on fabricated charges were a violation of his
father’s right to freedom of expression.

State Party’s Arguments:

1) The State party recalls that on 10 October 2008, the Takhtakupir District Court sentenced
Salijon Abdurakhmanov to ten years of imprisonment. According to the court verdict, on 7 June
2998, Salijon Abdurakhmanov was stopped in the city of Nukus while he was driving a vehicle
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under influence of alcohol. Upon inspection, the police officers found 114.18 grams of marijuana,
and 5.98 grams of opium in his car.

2) The charges against him were heard in “open court”. Mr. Abdurakhmanov’s guilt was proven
and supported by evidence from several witnesses, the results of the forensic examination,
description of physical evidence, and other materials gathered during the investigation.

3) Mr. Abdurakhmanov did not draw lessons from his conviction, and continued by violating the
rules of the prison where he was serving his sentence. Due to these violations, he as not eligible
for early release program.

4) On 12 and 20 May 2016, the State party further submitted that Salijon Abdurakhmanov
continued violating rules and regulations of the prison where he is held, which makes him ineligible
for early release.

Issues:

1) Whether or not the state party violated Article 9(1) and (4) , 14(1), (2) and (5), and 19 (2)

Decision:

Yes. Regarding the author’s claims that Mr. Abdurakhmanov was arbitrarily detained and
imprisoned as a result of his journalistic and human rights activities, in violation of his rights under
article 9(1), the Committee recalls its long-standing jurisprudence that the protection against
arbitrary detention is to be applied broadly and that the term “arbitrariness” is not to be equated
with “against the law”, but must be interpreted more broadly to include elements of
inappropriateness, injustice, and lack of predictability and due process of law. The Committee
also recalls that an arrest or detention as punishment for the legitimate exercise of the rights as
guaranteed by the Covenant, including freedom of opinion and expression, is arbitrary. The
Committee notes the author’s claims that Mr. Abdurakhmanov was detained and imprisoned in
violation of his fair trial rights, and that he was explicitly targeted for his activities as a human
rights defender and journalist.

Regarding the author’s contention that Mr. Abdurakhmanov’s trial was not fair, since the trial court
did not accept the request for a full version of the relevant videotape taken at the alleged crime
scene to be played, that it did not conduct additional forensic examinations as requested by
defense lawyers, that the prosecution did not establish his intent to sell drugs and that the case
against him was an example of persecution against members of opposition, journalists and human
right defenders, the Committee notes that these claims have not been refuted by the State party.
The Committee recalls its general comment No. 32 in that the right to equality before courts and
tribunals also ensures equality of arms. This means that the same procedural rights are to be
provided to all the parties unless distinctions are based on law and can be justified on objective
and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant.

The Committee also notes its findings below that the State party has seized journalistic materials
and questioned the author’s father about his work as a journalist and as a human rights activist,
and that the state party failed to justify such interference with his freedom of expression.

The Committee refers to its general comment No. 34 on the freedoms of opinion and expression,
according to which freedom of opinion and freedom of expression are indispensable conditions
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for the full development of the person. Such freedoms are essential fro any society and constitute
the foundation stone for every free and democratic society .

Arslan Dawletow vs. Turkmenistan; Communication No. 2316/2013; 29 March 2019

Facts:

The author is a Jehovah’s Witness. He has never been charged with a criminal or administrative
offense other than his criminal conviction as a conscientious objector. The author’s call-up for
military service was deferred in 2010 and again in 2011 owing to his suffering from epileptic
seizures since childhood and to a confirmed diagnosis of “asthenic-depressive syndrome”.

He was later on summoned for military service contrary to his religious convictions and in
disregard of his medical condition. He explained that his religious beliefs did not permit him to
perform military service.

On 7 December 2012, the author was summoned to report for military service, which he did. On
8 December 2012, he was arrested by employees of the Military Commissariat and placed in
pretrial detention at the DZ-D/7 detention facility in Dashoguz. On 9 January 2013, the trial against
him took place in Dashoguz City Court. The author explained that he had refused to perform
military service for religious reasons and that his conscience did not allow him to perform military
service, take an oath of allegiance, put on a military uniform or bear arms, but that he was willing
to fulfil his civil obligations by performing alternative civilian service.

On 9 January 2013, the author was convicted and sentenced by the Dashoguz City Court to 24
months of imprisonment under article 219 (1) of the Criminal Code for refusing to perform military
service. His mother immediately lodged an appeal on his behalf as he was unable to do so owing
to his imprisonment.

However, when she visited the author on 15 January 2013, the detention facility officers refused
to permit the author to sign the appeal. On 18 January 2013, the author’s mother submitted a
complaint to the Prosecutor General of Turkmenistan, in which she requested him to take urgent
measures to enable the author to sign the appeal within the deadline for submitting the appeal,
which was to expire on 19 January 2013.

In a letter dated 5 February 2013, the Dashoguz City Prosecutor stated that a “brief meeting”
between the author and his mother had taken place on 15 January 2013 and that an appeal could
be submitted by a lawyer or by the author. The Prosecutor’s response ignored the main point of
the complaint, namely, the fact that the detention personnel present at the meeting between the
author and his mother had refused to permit the author to sign the appeal as well as the fact that
he was not, at that point, represented by counsel. Because of the refusal by the detention officers
to permit him to sign the appeal, the author was unable to appeal the judgment of the Dashoguz
City Court.

The author asserts that, since there was no effective domestic remedy available to him to
complain about the alleged violation of his rights under the Covenant, the obligation to exhaust
all available domestic remedies has been satisfied.

Author’s Arguments:
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1) The author claims that his prosecution and imprisonment on the ground of his religious beliefs
expressed in his conscientious objection to military service in itself constitutes inhuman or
degrading treatment within the meaning of article 7 of the Covenant. The author also claims a
violation of article 7 of the Covenant on account of the detention conditions in the LBK-12 prison.

2) he author claims that his prosecution, conviction and imprisonment for refusing to perform
compulsory military service owing to his religious beliefs and conscientious objection have
violated his rights under article 18 (1) of the Covenant.

Issue:

Whether or not the state party violated article 18(1) of the Covenant.

Decision:

Yes. The Committee recalls its general comment No. 22 (1993) on the right to freedom of thought,
conscience and religion, in which it considers that the fundamental character of the freedoms
enshrined in article 18 (1) is reflected in the fact that this provision cannot be derogated from,
even in time of public emergency, as stated in article 4 (2) of the Covenant. The Committee recalls
its prior jurisprudence stating that, although the Covenant does not explicitly refer to a right of
conscientious objection, such a right derives from article 18, inasmuch as the obligation to be
involved in the use of lethal force may seriously conflict with the freedom of thought, conscience
and religion. The right to conscientious objection to military service inheres in the right to freedom
of thought, conscience and religion. It entitles any individual to an exemption from compulsory
military service if such service cannot be reconciled with that individual’s religion or beliefs. The
right must not be impaired by coercion. A State may, if it wishes, compel the objector to undertake
a civilian alternative to military service, outside the military sphere and not under military
command. The alternative service must not be of a punitive nature. It must be a real service to
the community and compatible with respect for human rights.

In the present case, the Committee notes that it is uncontested that the author’s refusal to perform
compulsory military service derives from his religious beliefs. The Committee recalls that
repression of the refusal to be drafted for compulsory military service, exercised against persons
whose conscience or religion prohibits the use of arms, is incompatible with article 18 (1) of the
Covenant. It also recalls that, during the consideration of the State party’s second periodic report,
in March 2017, the Committee stated that it remained concerned about the State party’s continued
failure to recognize the right to conscientious objection to compulsory military service and the
repeated prosecution and imprisonment of Jehovah’s Witnesses refusing to perform compulsory
military service (see CCPR/C/TKM/CO/2, paras. 40–41). The Committee notes that it has dealt
with similar cases in respect of the same laws and practices of the State party in a number of
earlier communications. In line with those precedents, the Committee concludes that, in the
present case, the State party has violated the author’s rights under article 18 (1) of the Covenant.

Ruslan Dzhumanbaey vs. Kazakhstan; Communication No. 2308/2013; 29 March 2019

Facts:
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The author is Mr. Ruslan Dzhumanbaev, a national of Kazakhstan born in 1974. He claims that
the State Party has violated his rights to freedom of expression under articles 19(2) and to
peaceful assembly 21 of the Covenant, as neither the police nor the courts provided a valid
justification for restricting these rights. . The Optional Protocol entered into force for Kazakhstan
on 24 January 2006.

On 2 June 2012, the author encountered some friends in the centre of Almaty, near the statue of
poet Abay Kunanbayev, the author’s direct ancestor. They discussed Abay Kunanbayev’s poetry
as well as the tragic events of 16 December 2011 in Zhanaozen. They did not have any
microphones or banners in their possession and their meeting was of an informal nature. At some
point, the group was approached by a representative of the prosecutor’s office who informed them
that they were violating the Law on the Order of Organization and Conduct of Peaceful
Assemblies, Meetings, Processions, Pickets and Demonstrations in the Republic of Kazakhstan.
Upon his advice, the author and his friends decided to walk away from the statue of Abay
Kunanbayev so they would not be breaking the law.

On the same day, the author was arrested by the police and tried by the Specialized Interregional
Administrative Court of Almaty. the Court found the author guilty of violating the legislation on
organizing and holding peaceful assemblies and rented him to pay a fine.

Arguments of the State Party:

1) The State party requests the Committee to find the communication inadmissible due to non-
substantiation and failure to exhaust domestic remedies.

2) The State party further notes that the author does not deny that he took part in the unauthorized
gathering on 2 June 2012, but he argues that his actions have not violated the law. Article 19(3)
allows for certain restrictions on the right to freedom of expression if they are provided by law and
are necessary for the respect of the rights of others, protection of national security or public order,
public health or morals.

3) Article 21 similarly provides for the right to peaceful assembly, and no restrictions may be
placed on this right other that those imposed in conformity with the law and which are necessary
in a democratic society in the interests of national security or public safety, public order, the
protection of public health or morals or the protection of the rights and freedoms of others. The
State party notes that in Kazakhstan, the Law on the Procedure for Organizing and Holding
Peaceful Assemblies, Meetings, Marches, Pickets and Demonstrations sets the procedure for
expressing opinion in public places and restrictions to this right. According to this law, one must
submit an application to a local municipality to hold a public event, and those in violation of this
requirement can be held responsible in accordance with the legislation.

4) The State party recognizes that freedom of assembly is a democratic exercise of political
activism, and that the Constitution of Kazakhstan guarantees the realization and protection of this
inalienable right. However, it notes that realization of rights by some shall not lead to the violation
of rights of others.

5) The State party notes that the author has been sanctioned not for expressing his opinion but
for violating the procedure for holding a public assembly.

6) The author submitted such a petition to the Deputy General Prosecutor, which was denied on
6 June 2013. However, he did not petition the General Prosecutor of Kazakhstan for a supervisory
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review. Therefore, the State party considers that the author has not exhausted all available
domestic legal remedies and his communication should be found inadmissible pursuant to article
5(2)(b) of the Optional Protocol to the Covenant.

Issue:

Whether or not the state party violated the author’s rights under Article 19(2) and Article 21 of the
ICCPR.

Decision:

Yes. The Committee observes that, in the present case, the State party has argued that article
19(3) allows for certain restrictions to the right to freedom of expression if they are provided by
law and are necessary for the respect of the rights of others, protection of national security or
public order, public health or morals. The Committee further observes that regardless of the
nature or the contents of the author’s discussions during the event on 2 June 2012, the State
party has failed to clearly invoke any specific grounds to support the necessity of the restrictions
imposed on the author as required under article 19(3) of the Covenant.

Moreover, in its submissions the State party has not provided any information that would justify
restriction of the author’s right to freedom of expression. The Committee considers that, in the
circumstances of the case, the limitations on the author’s rights, although imposed on the basis
of domestic law, were not shown to be justified and proportional pursuant to the conditions set
out in article 19(3) of the Covenant. It therefore concludes that the author’s rights under
article 19(2) of the Covenant have been violated

Regarding the author’s claim under article 21 of the Covenant, the Committee recalls that the right
of peaceful assembly, as guaranteed under article 21 of the Covenant, is a human right that is
essential for public expression of an individual’s views and opinions and is indispensable in a
democratic society. The organizers of an assembly generally have the right to choose a location
within sight and sound of their target audience. No restrictions to the right to peaceful assembly
are permissible, unless they (a) are imposed in conformity with the law; and (b) are necessary in
a democratic society, in the interests of national security or public safety, public order, protection
of public health or morals or protection of the rights and freedoms of others. When a State party
imposes restrictions with the aim of reconciling an individual’s right to assembly and the
aforementioned interests of general concern, it should be guided by the objective of facilitating
the right rather than imposing unnecessary or disproportionate limitations on it. The State party is
thus under an obligation to justify the limitation of the right protected by article 21 of the Covenant.

The the Committee observes that in the present case the State party has failed to provide any
justification or explanation as to how, in practice, the authors’ meeting would have violated the
interests of national security or public safety, public order (ordre public), the protection of public
health or morals or the protection of the rights and freedoms of others, as set out in article 21 of
the Covenant. Accordingly, the Committee concludes that the facts before it also constitute a
violation of the author’s rights under article 21 of the Covenant.

Hadji Hamid Japalali vs. The Philippiens; Communication No. 2536/2015; 28 March 2019
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Facts:

The author of the communication is Hadji Hamid Japalali, a Philippine national. He files his claim
on his own behalf and on behalf of his deceased brother, Bakar Japalali, and his brother’s wife,
Carmen Baloyo-Japalali, both of them Philippine nationals. The author claims that Bakar Japalali
and Carmen Baloyo-Japalali were victims of a violation of article 6, and that he himself was a
victim of a violation of article 2(3), read in conjunction with article 14 (1) of the Covenant. He is
represented by counsel. The Optional Protocol entered into force for the State party on 22
November 1989.

Author’s Arguments:

1) The author claims that the victims’ rights under article 6 were violated. Even if the orders were
given by a superior, these orders were unlawful and the resulting deaths still amounted to arbitrary
deprivation of life. He adds that obedience to a superior’s order can never justify serious human
rights violations such as extrajudicial executions.

2) He was left without an effective remedy to establish the truth about his relatives’ deaths, obtain
justice and adequate reparation. Although he would have like to appeal the acquittal decision, he
is not allowed to do so under Philippine law.

3) The author alleges that his right to a fair and public hearing by a competent, independent and
impartial tribunal was violated as the trial court that rendered the acquittal decision found
insufficient evidence to convict the soldiers by justifying their actions with the argument that they
obeyed a lawful order, even though such obedience can never justify serious human rights
violations, such as an extrajudicial execution in this case.

State Party’s Arguments:

1) The State party contends that the communication is inadmissible because the author has failed
to exhaust available domestic remedies.

2) The State party alleges that another domestic remedy available to the author was to file a civil
claim independently from the criminal prosecution of the offense. Article 29 of the New Civil Code
of the Philippines clearly and expressly provides for a remedy for the plaintiff in case the defendant
has been acquitted in a criminal prosecution on the grounds that his guilt has not been proven
beyond reasonable doubt.

3) The State party alleges that the author could have claimed compensation under Act No. 7309,
known as “Act creating a board of claims under the Department of Justice for victims of unjust
imprisonment or detention and victims of violent crimes and for other purposes”.

4) The State party argues that the author tacitly seeks to have a final decision re-opened with a
view to have the acquittal reviewed, reversed or annulled. The relief sought by the author is
incompatible with article 14 (7) of the Covenant, which protects the accused against double
jeopardy.
 11 of 11

5) The State party contends that the author is contesting the evaluation of facts and evidence and
the application of domestic legislation by the State party’s courts. It notes that there is no evidence
that the proceedings before the Regional Trial Court of Tagum City were arbitrary or amounted to
a denial of justice. While the author questions the competence, independence and impartiality of
the tribunal that rendered the judgment of acquittal, he has failed to substantiate such serious
allegations.

6) The State party contends that the actions of the army officers that resulted in the deaths of the
victims were neither unlawful nor arbitrary and therefore did not violate article 6 of the Covenant.

7) By failing to prove the guilt of the accused beyond reasonable doubt, the prosecution also failed
to overcome their presumption of innocence.

8) The State party argues that a disappointed litigant who has been given full access to
procedures within a State’s legal system cannot ask for a different treatment to other citizens
since that would violate the right of all citizens to equal protection of the laws.

Issue:

1) Whether or not the state party violated the author’s right to life.
2) Whether or not the state party violated the author’s right to an effective remedy, fair trial.

Decision:

1) Yes. The Committee recalls that the right to life is the supreme right from which no derogation
is permitted even in situations of armed conflict and other public emergencies which threatens
the life of the nation.1 It further recalls that article 6 (1) of the Covenant prohibits arbitrary
deprivation of life, and that, as a rule, deprivation of life is arbitrary if it is inconsistent with
international law or domestic law. A deprivation of life may, nevertheless, be authorized by
domestic law and still be arbitrary.

2) Yes. The Committee recalls that it is generally for national courts to review facts and evidence,
or the application of domestic legislation, in a particular case, unless it can be shown that such
evaluation or application was clearly arbitrary or amounted to a manifest error or denial of justice,
or that the court otherwise violated its obligation of independence and impartiality.

It also recalls that investigations into allegations of violations of article 6 must always be
independent, impartial, prompt, thorough, effective, credible and transparent, and in the event
that a violation is found, full reparation must be provided, including, in view of the particular
circumstances of the case, adequate measures of compensation, rehabilitation and satisfaction.