For the Rule of Law THE REVIEW

INTERNATIONAL COMMISSION OF JURISTS

EDITORIAL 1

HUMAN RIGHTS IN THE WORLD El Salvador 3 Nigeria 14 Ghana 5 Pakistan and Bangladesh 19 Japan 10 Singapore 23

COMMENTARIES Human Rights Committee 26 UN Sub-Commission 31

ARTICLE Pre-trial Detention in Western Europe S. Grosz, A.B. McNulty andP.J. Duffy 35

JUDICIAL APPLICATION OF THE RULE OF LAW Sunday Times Case, European Court of Human Rights 62

ICJ NEWS 64

No 23 December 1979 Editor: Niall MacDermot ASSOCIATES OF THE INTERNATIONAL COMMISSION OF JURISTS

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1979 has been a remarkable year for human rights. It has seen the toppling in Africa of three most brutal dictators, Amin, Bokassa and Macias. One of them, Macias, has been brought to trial before an internationally observed tribunal to answer for his crimes. Military regimes have given way to a return to civilian rule in Latin America (Bolivia, Ecuador and Nicaragua), in Africa (Ghana and Nigeria) and in Asia (Bangladesh). There has been progress towards greater democracy in Brazil. President Park’s extraordinary as­ sassination by the head of his security organisation offers the possibility of similar prog­ ress in South Korea. In Indonesia and many other countries tens of thousands of political prisoners have been released. The course of some of these events is described in this Re­ view. More remarkable, the indomitable spirit of the people of Bolivia supported by their elected president, the political parties, the Congress and above all the trade unions, broke the attempt by Colonel Natush to reimpose a military regime. The aborting of this coup is one of the most significant and hopeful events of the year. 1979 has also seen the fall of the Shah of Iran, overthrown by an Islamic revolution largely inspired by Ayatollah Khomeini. The results of this revolution are yet to be dis­ cerned, and its repercussions are reverberating throughout the world at the time of going to press with the illegal detention of the US embassy staff in Teheran.

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This issue contains a somewhat longer article than usual. It is a comparative study of the law and practice relating to the detention of suspects before trial in Belgium, England, France and West Germany. One of the authors is a former Secretary to the European Commission on Human Rights. The time which suspects spend in detention before their guilt has been determined sometimes lasts for a year, two years, or even more and makes a mockery of the presumption of innocence. It betrays an indifference to the rights of those who are the victims of the law's delays. This article says little about the conditions of detention, but in some european coun­ tries conditions of detention awaiting trial are worse than those of prisoners serving a sen­ tence, with long and soul-destroying periods in solitary confinement, with no work, and with lengthy delays between interrogations by the examining magistrate. The principles governing release on bail are virtually identical in all countries, but the practice varies widely. Nothing short of greater pressure on the courts and, in the civil law countries, on the police who assist the examining magistrates in collecting evidence, is likely to cure this evil. A simple solution might be a rule that suspects in custody must be released after six months if not by then sent for trial unless, in exceptional circumstances, a higher court authorises a longer period of detention. Another remedy would be to adopt a simple speedy appeal procedure against a refusal of bail, comparable to the english sys­ tem of an immediate appeal to a High Court Judge in Chambers.

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EL SAL VADOR headed by U.S. Congressman Robert F. Drinan visited El Salvador to examine the The recent military coup in El Salvadorhuman rights situation. These missions has again focused attention on the criticalhave confirmed the occurrence of numer­ political situation in the smallest Centralous killings, detentions without trial, disap­ American country. On 15 October 1979,pearances, torture, and persecution of peas­ two Army colonels deposed the govern­ants, trade unionists, political parties and ment of Gen. Carlos Humberto Romero, Catholic churchmen. who had held power since 1 July 1977. A The Inter-American Commission of Hu­ five member junta, also comprising threeman Rights reached unequivocal conclu­ civilians, was installed. The junta promptlysions that point to a significant and serious announced its intention of creating deteriorationa cli­ of fundamental rights. Among mate of peace in the country by establish­these are: ing the foundations for sweeping social and— Numerous persons died as a result of the economic transformations. It promised to activities of security forces and ORDEN. hold free elections within a reasonable time, Gen. Romero had promoted ORDEN and proclaimed that political parties of all while he was Minister of Defence and ideologies could be organised and would be was its honorary president when he be­ legalised. The government also announcedcame head of state. an amnesty for all political prisoners and— The security forces and ORDEN com­ for Salvadoreans in exile, as well as the dis­ mitted acts of torture and physical and solution of ORDEN (Nationalist Democrat­ psychological ill-treatment in many ic Organisation), a paramilitary body fully cases. supported by the government, and other— The security forces committed grave right-wing paramilitary groups. After de­ violations of the right to liberty by car­ nouncing the violation of human rightsrying out arbitrary detentions. They under the corrupt regime of President operated secret detention centres where Romero, the junta declared that only a several persons whose arrest and deten­ genuinely democratic government couldtion were denied by the government surmount the present chaos. were kept under extremely cruel and in­ El Salvador has indeed been experienc­ human conditions. In fact, at the head­ ing chaos and violence in the past few yearsquarters of the National Guard, the (See ICJ Review, No. 20, June 1978, pp. members of the Commission inspected 10-14). During 1978, the Inter-American secret cells measuring 1 metre long by Commission of Human Rights, a British 1 metre wide. The cells were completely Parliamentary delegation, and a Unitarian dark and its walls were covered with Universalist Service Committee mission cockroaches. According to the National Guard, these cells were used for drunk­central highlands. These people had suffer­ en detainees to sober up and to keep ed from the introduction of coffee and explosives that could not be exposed to their village communities had retained a light. degree of social cohesion. Despite these up­ - The laws of El Salvador contain provi­risings, land ownership remains highly con­ sions guaranteeing the protections centrated of to this day. due process of law, but in practice legal During 1979, the situation in El Salva­ remedies are not effective to protect hu­ dor has not improved. The Law to Protect man rights. This is particularly true inand Guarantee Public Order, which accord­ the case of disappeared persons. ing to an ICJ report by Donald Fox “re­ - The concentration of land ownership,sults in serious infringements of the right and of economic power in general, withof free speech... reduces the independence the incident misery of peasants, explainof the judiciary... and invites an abuse of in good measure violations of humanpower on the part of the security forces”1, rights and thwart the enjoyment of eco­was repealed in February 1979. This did nomic and social rights. These condi­not, however, signal a return to legality. tions, however, in no manner justifyViolence the has erupted often in the past few violation of civil and political rights. Inmonths. In May 1979, 23 demonstrators fact, they hinder the effective operationoutside the Cathedral in San Salvador were of a political system that could construc­fired upon by the police and died. Mem­ tively meet the real social and economicbers of the Popular Revolutionary Bloc oc­ needs of the country. cupied several foreign embassies to press The unequal distribution of land hasfor the release of three of their leaders held been historically a source of conflict in Elby the government. During one such oc­ Salvador. In colonial times, the private free­cupation, fourteen persons were killed by hold estate coexisted with communal landsthe police outside the Venezuelan embassy. reserved for the Indian population. But atA day later, left-wing gunmen killed the the end of the 19th Century communaleducation minister. The government then lands were abolished. This brought aboutimposed the state of siege. In September the development of coffee plantations and1979 the President’s brother was slain. commercial agriculture in general. El Salva­ Violence has not abated following the dor is at present the third largest exporter overthrow of Gen. Romero. Many people of coffee in the world. The abolition of have died in almost daily clashes of demon­ common lands and the dispossession of itsstrators and police. Some militant left-wing cultivators resulted in several uprisings thatgroups have announced that they will sus­ took place from 1872 to 1898. In one ofpend their activities to see if the govern­ these disturbances the cutting off of thement will put its pledges into action. The hands of land judges responsible for allo­Archbishop of El Salvador, a leading defen­ cating common land as private propertyder of human rights, has also indicated that was reported. he favours a dialogue with the junta. It is Then, in 1932 some 17,000 peasantsto be hoped that the present government were killed by government forces during willa indeed set the country on the course rebellion of the rural population of theto democracy. If not, violence will probab-

1) The Application of the November 1977 ‘Law of Defence and Guarantee of Order', Public Donald T. Fox, ICJ, 1978. ly continue and the likelihood of generalis­Virtually all hospitals, schools and other ed popular insurrection, a right guaranteedpublic buildings were destroyed. The eco­ by the Salvadorean Constitution, will nomy in­ is shattered and foreign credit and crease. relief are insufficient to meet the needs of There have been suspicions that the gov­the country. Despite these difficulties, the ernment is dragging its feet in carrying rulingout junta is intent on assuring fundamen­ the promised reforms. An amnesty decree tal rights to the people. A Bill of Rights has has not yet resulted in the liberation of po­been enacted. Some of its main provisions litical prisoners, and disappeared persons include: freedom of expression; the aboli­ have not been accounted for. Some politi­tion of the death penalty; the prohibition cal parties have been allowed to organise of detention without a court order except and hold rallies, but not the militant left-in cases of flagrant crimes; the right of de­ wing organisations. The ORDEN has beentainees to know the charges; the right to be dissolved by decree, but its members arraigned within 24 hours or else be releas­ threaten publicly to continue clandestineed; the right of detainees to be present at operations. any court hearings against them; the right to get reparation for illegal detention; the Nicaragua right to privacy and security; the right to Meanwhile, in neighbouring Nicaraguaproperty subject to limitations related to the new National Reconstruction Govern­security, public interest or utility, social ment formed after the Sandinista Nationalinterest, national economy, national emer­ Liberation Front took power on 19 Julygency or agricultural reform. Furthermore, 1979 has begun the task of rebuilding political a prisoners are gradually being re­ country ravaged by the war against theleased. Somoza dictatorship. About 60,000 people The unfolding of events in Nicaragua (out of a population of 2.25 million) died has been and will continue to be of great during the fighting. Half a million peopleimportance for the future of the other five are homeless and food is in short supply.Central American republics.

GHANA become a one man show”. As the economic performance of Acheampong's government Military Coup in July 1978 had brought the country to the verge of bankruptcy, economic recovery was to be A week after the article on Ghana wasthe main theme of the new regime’s pro­ published in Review No. 20, in June 1978,gramme. The government announced a de­ General Ignatius K. Acheampong was re­valuation of the cedi, a measure which moved from office by rival officers in the Acheampong, on taking power in 1972, Supreme Military Council. In his firsthad promised never to take. Two months major address to the nation the new headlater the cedi had depreciated by 58% of state, General F.W.K. Akuffo, gave as against the US dollar. the main reason for his removal that com­ One of the first actions of the new gov­ munications between Acheampong and ernmenthis was to release “all those taken colleagues had virtually broken down andinto protective custody after the March 30 that “the whole governmental activity hadreferendum” (see ICJ Review No. 20, p. 5) and to announce a general amnestydid for not go any further than take him into Ghanaians in self-imposed exile.1 The Barprotective custody and, as from May 1, Association, which had earlier protested stripping him of his property and rank be­ against the detentions, ended its strike onfore releasing him (to be confined to his July 24, as did the students and universitynative village). The decree doing this gave a lecturers their boycott. The press regained staggering list of serious economic crimes, most of its freedom and the influentialbut no charges were brought against him. Legon Observer and Catholic StandardThis did little to convince the public that published editorials critical both of the pre­ corruption within the military could be vious and the present government, withtackled by a military government. In this titles such as “beware of soldiers in politics, climate - and even more after the 1978/79 even if they bring gifts in the form of Gen­budget had illustrated the seriousness of eral Acheampong’s resignation”. In thethe economic situation - there was a grow­ same mood the Bar Association demanded ing public demand for “accountability”. (1) that a commission of inquiry be set upThe Bar Association once again spoke for to investigate the “gigantic fraud” of thelarge segments of society by calling for a March 30 referendum (2) that Justicehigh-level inquiry into all foreign exchange Abban be reinstated as Electoral Commis­ transactions since the January 1972 coup sioner (3) that the “union government”and for “bringing to account” the previous programme be abandoned and that a num­government for its mismanagement, de­ ber of organisations which had campaignedscribing the military government as “in­ for it be banned (4) that press licensing becompetent, corrupt, rapacious and inept”. ended and (5) that the Constitution Draft­ ing Commission be dissolved in favour of a constituent assembly whose work would beConstitutional Rule and Elections based on the 1969 (multi-party) Constitu­ tion. The new government announced imme­ In an effort to acquire more public con­diately after the coup that it would conti­ fidence the government set up committeesnue the programme (begun under Acheam­ of inquiry to investigate the misconduct pong)of for a return to constitutional rule by public officials, in particular in the Cocoahanding over power to “a popularly elect­ Marketing Board, the Black Star Shipping ed government on July 1, 1979”, but the line and the State Fishing Corporation.language employed indicated that “unity Corruption, embezzlement of public funds,and stability” and “a national form of gov­ tax evasion, trading irregularities and theernment" would be paramount in the “lack of discipline” in both the civil servicesearch for a new constitutional framework. and the private sector were declared targets Indeed, on 31 July 1978 Akuffo announc­ of investigation, and there followed someed that party politics would not be allowed dismissals of army officers and senior civil for the time being and that the government servants. The investigations, however, preferred did a transitional government for at not lead to the prosecution of any high-least four years. In response to this the Bar ranking person. Even in the case Association of refused to cooperate in nomi­ Acheampong himself the new governmentnating representatives to the enlarged Con-

1) Over 300 detainees were released in the first three months, nearly a third of whom had been de­ tained for suspected economic offences. stitution Drafting Commission and reiterat­ed as legitimizing military coups and abuse ed its call for an early resumption of partyof power. politics. On May 15, 1979, a group of 50-60 After receiving the report of the Draft­non-commissioned and junior officers, ing Commission and “in response to publicheaded by Flight-Lieutenant Jerry Raw­ views” the government reversed its posi­lings, tried to seize power. Although they tion, and early in 1979 announced thatdemonstrated the with armoured cars and ban on party politics would be lifted. Gen­heavy arms in the streets of the capital, eral elections were scheduled for June 18,Accra, the coup was unsuccessful. Rawlings but several restrictions on political activi­and seven accomplices were arrested and ties were promulgated. The Elections and charged with attempting to “commit muti­ Public Offices Disqualifications Decree, ny with violence and to overthrow the law­ dating from the 1966 coup against ful authority in the country’s armed Nkrumah, was re-invoked and 105 politi­ forces”. During the court martial trial later cians and officials of previous civilian gov­that month Rawlings reiterated his accusa­ ernments were banned from standingtions as against high-ranking officers and de­ candidates or being on the controlling bo­clared that Ghana needed an “Ethiopian dies of political parties. All parties in exis­ style” solution to its problems. In particu­ tence before the 1966 and 1972 coups lar the corruption, the dominance of the were proscribed and so was the use of sym­ Ghanaian economy by foreigners such as bols and slogans of any of these parties.the Lebanese, the lack of resolve to prose­ Parties based on regional or tribal cleavages cute Acheampong and other SMC leaders, were also forbidden. and the immunity provision for the milita­ A constituent Assembly1 was set upry leaders in the draft Constitution were and, after only four months work present­cited as evils which the attempted coup ed its draft constitution to the Supremewanted to cure. The cheering of the public Military Council in May, 1979. The draftindicated that his views were widely shared. (1) barred the establishment of a one-party state without reference to the electorate, (2) provided for an executive president,Economic Unrest and Emergency (3) contained formal guarantees of funda­ mental human rights, (4) lowered the voting The devaluation of the cedi led to fur­ age to 18, (5) abolished government licens­ther hardship for the urban poor who had ing of mass media, (6) continued the dis­already suffered much from rapid annual qualification from public office for 10 inflation under the previous regimes. In the years of persons convicted by commissionsface of large scale strikes throughout the of inquiry (7) and granted an indemnitycountry to the government declared an official SMC, NLC and NRC members2. This last state of emergency on November 6, 1978, provision in particular was severely criticiz­based on a newly promulgated Emergency

1) The Assembly consisted of 64 nominees of district councils, 42 nominees of important national institutions and professional bodies, and 34 persons appointed by the government. The Chairman was Justice Crabbe, a High Court judge. 2) i.e. the Supreme Military Council, the National Liberation Council and the National Redemption Council, the three military bodies which had governed Ghana at various times. Powers Decree. Akuffo, in a nationwideplace, a rumour went through the ranks of radio and television statement, said thatthe armed forces that there was a plot to the budgetary objectives of the governmentkill Fl/Lt. Rawlings in his cell, a group of would be pursued with full force. “Strikes... NCO's stormed the prison and released him. shall be regarded as criminal acts against After seizing the armoury, they brought the security of the state and will be dealt Rawlings to the national radio station to with according to the relevant laws of themake a first announcement of the coup. country”. He ordered an immediate investi­On 4 and 5 June there was heavy fighting gation of an electricity strike in and aroundwith troops loyal to the SMC, but when Accra and threatened that the damage the army commander together with some caused would be recouped from the salaries tens of soldiers lay dead, the military oper­ of the workers involved. When in spite ofations came to an end. A ten member Akuffo's warning the civil servants continu­Armed Forces Revolutionary Council ed a strike after the deadline had passed, (AFRC) was established with Flight-Lieute­ striking civil servants were dismissed ennant Jerry Rawlings as its Chairman. From masse1. After eight weeks the emergency the outset he made known that the sole ob­ was lifted. Although the government hadject of the coup was to deal with corrup­ shown toughness in executing its economiction in the army, and that he would “en­ policies, it had provoked much ill-feeling sure a smooth transition to constitutional among workers and civil servants. rule as planned’’. “Justice” he said, “which Another economic measure was a sur­has been denied to the Ghanaian worker, prise currency reform2. Its aim was to re­ will have to take place. That I promise you. duce the money supply, and in this waySome in­ of us have suffered for far too long”. flation, and to catch smugglers, taxdodgers On June 7 Rawlings called a meeting and profiteers who were likely to have with all the presidential candidates to ex­ more than 5,000 on hand in cash. The posi­plain the “limited objectives” of the coup tive effects of the operations remained lim­and to work out a common strategy for ited. Although a number of criminals seemhanding over power at the end of the to have been caught, a great deal of hard­“house-cleaning exercise”. The only change ship was caused to simple people in rural was a postponement of the day for the for­ areas, who did not invest their money mal in handing over of power from July 1 to -foreign exchange, bonds, shares or realOctober 1, 1979. The politicians were estate, but kept their life savings in a matt­warned that “no matter the quantity of ress. money that is going to be pumped into this country, the success or failure of this sys­ Fl/Lt Rawlings tem will depend on one thing - integrity, accountability and a certain degree of When in early June 1979, two weeks be­honesty”. fore the national elections were to take The AFRC kept its promise of holding

1) In fact the strike was called off but only after the deadline had passed. Those who sought to return to work were not accepted. 2) Ghanaians were given two weeks to convert their cash in hand up to 5,000 cedis (approximately US$13,500) at a rate of 7 new bills for 10 old (which represented the same value) and over 5,000 cedis at a rate of 5 to 10. After two weeks the old money lost its validity. The frontiers were closed during that period. the elections on June 18, but they werethat, in spite of public pressure for more overshadowed by the public execution,executions, the special courts did not pro­ two days before the voting, of the former nounce any more death sentences. Al­ Head of State, Acheampong, and the for­ though many others were tried on similar mer head of the Border Guard, a notorious­ charges under similar circumstances, they ly corrupt body. Six more military officers were sentenced to long terms of imprison­ including the former heads of state Akuffoment. and Afrifa and former Commissioner for Foreign Affairs Felli, were executed on June 26. They had been tried by specialCivilian Government courts, set up under an AFRC “Special Courts Decree”, published with retrospec­ The elections were held on June 18. tive effect on June 25, and condemned Contrary to to predictions Dr Hilla Limann’s death by firing squad after a brief, closed People's National Party, with leading mem­ trial without the possibility of appeal to a bers and programmes akin to Nkrumah’s higher body, let alone review by a judicialparty, headed the poll with 35% of the tribunal. They were executed within hoursvotes followed by the Busia-oriented Popu­ of being sentenced and hence no time lar was Front Party with 30%. No party having left for seeking clemency on their behalf.obtained an absolute majority in the first Apparently they were found guilty - round, in a run off for the Presidency was terms of the decree — of “acquiring and held on July 9, 1979. Dr Hilla Limann won obtaining loans, properties, material goods, and became the first President of the New favours and advantages and committingThird Republic, when the AFRC handed abuses by virtue of their official positionsover power on September 24, a week be­ in the public service”. fore the original date. This stern action — in spite of breaking The problems facing the new civilian a Ghanaian tradition of bloodless coups -government are tremendous. The AFRC was received with widespread popular sup­ house-cleaning operating may have created port and acclamation, although some criti­a “new mood” and fresh opportunities for cism was voiced, in particular after the “honest government”, but they have not second series of executions. The Bar Asso­solved Ghana’s deep-rooted economic ciation, Church leaders and leaders of sev­problems. When Kwame Nkrumah was de­ eral political parties asked for full investiga­ posed by a military coup in 1966, the eco­ tions and fair trials instead of these sum­nomy was ailing badly. The subsequent mary trials and executions. Abroad themilitary regime and civilian government of reactions were much sharper. The Interna­Busia did not do much better. The decline tional Commission of Jurists and otherin cocoa production, Ghana’s main foreign non-governmental human rights organisa­exchange earner, was contributed to by the tions and some Western governments pro­sudden expulsion by Busia of thousands of tested against the summary trials and exe­farm labourers to their home countries. cutions, and, more significantly, AfricanAcheampong's ill-calculated repudiation neighbours such as oil-producing Nigeria,of Nkrumah’s accumulated foreign debts Benin and Upper-Volta expressed theirplunged Ghana into further difficulties and disapproval by blocking delivery of primary the 1973 oil-crisis hit Ghana very hard. commodities to Ghana. It is hard to say Droughts in 1974, 1975 and 1976 caused what influence all this had, but the factfamine is in some regions and an increased import bill for food. However, in the same to solve, and are all the more difficult for a years many of the ruling civilian and milita­developing nation striving within the frame­ ry elite were able to accumulate consider­work of an unjust international economic able wealth and become big landowners. Inorder. the meantime, a policy of industrial devel­ Rawlings, who must be given credit for opment ill-adapted to the country's needs,returning to barracks after fulfilling his dating from the days of Nkrumah, caused promise of guaranteeing a smooth election rapid urban growth and the use of foreignand a transfer to civilian government, is exchange for imports of machinery, sparestill highly popular with the people and parts and raw materials. Together with con­will doubtless be watching the performance tinued mismanagement (either by incompe­of the new leaders. He may serve as a sword tence or by corruption) and expensive of im­ Damocles hanging over the heads of pre­ ports of luxury articles for a small urbansent and future Ghanaian rulers. This may elite, this led to inflation, black markets, increase their honesty, but not necessarily balance of payments problems and short­their ability to solve the country’s econom­ ages of many primary goods. These prob­ ic problems. lems are difficult enough for any country

JAPAN Protection Against Discrimination in Japan

On June 21, 1979, Japan ratified the In­human rights infringements. Japan has at ternational Covenants on Economic, Socialpresent over 10,500 Commissioners and Cultural Rights and on Civil and Politi­throughout the country. Appointed by a cal Rights. complex process of representative selec­ The 1947 Japanese Constitution guar­tion, which excludes any kind of political anteed in general terms most of the rightsinterference, the Commissioners are volun­ subsequently enshrined in the Universalteers who must meet high requirements of Declaration and in due course laws weremoral character, basic knowledge of and enacted to protect and promote humansupport for human rights and thorough rights. Normal judicial remedies are supple­ acquaintance with the area where they are mented by a network ofnon-legal remedies.expected to work. “Popularization of hu­ Perhaps the most interesting of these wasman rights thinking, education and conci­ the creation in 1948 of the Civil Libertiesliatory settlements of disputes are the three Bureau and in 1949 of the Civil Libertiespillars of their duties and achievements”.1 Commissioners. Functioning within theThe Commissioners deal with infringe­ Ministry of Justice, these bodies have noments of human rights by public officials powers to prosecute, but they are able to as well as by private individuals or organisa­ take action with regard to a wide range of tions. They cannot make binding orders,

1) Human Rights in Japan: Some Protections and Problems, by L.W. Beer and C.G. Weeramantry. Universal Human Rights, Vol. 1, No. 3, July—Sept. 1979, p. 7. r

but a process of consultation and media­reans. Following the San Francisco Peace tion very often allows them to solve prob­Treaty under which Japan surrendered lems involving human rights violations.Korea, the Japanese Alien Registration Act By ratifying the two International Cove­of 1952 deprived Koreans of their japanese nants, Japan has now taken a further citizenship,step and, as a result, of their right in the protection of human rights. How­to political participation. Although most of ever, some problems may arise in their im­them have been granted either permanent plementation, due to social traditions deep­or temporary resident status, their right of ly rooted in Japan's culture and tradition.residence is limited. Temporary residents Over the centuries Japan has demonstratedmay a lose their right of residence if they certain tendency for Japanese society receive to prison sentences for more than a organise in groups “based on origin, school,year. A permanent resident can be deported place of work, seniority, ability and otherif sentenced to a prison term of 8 years or factors’’.1 This has led to a tendency to re­more. Japanese citizenship is not easy to ject “outsiders", those who do not belong obtain. Problems of discrimination in rela­ to any of these groups. Questions may nowtion to aliens and Burakumin arise in dif­ arise whether the situation of the “outsid­ferent fields. Generally speaking, theright ers” is in full conformity with the non-dis-to work of aliens is subject to stringent crimination clauses in the two Covenants.conditions, principally relating to where Among the “outsiders”, reference maythey may work. For Koreans and Buraku­ be made particularly to aliens and to themin, problems arise in terms of job oppor­ Burakumin. The Burakumin were a class tunityof and promotion. There is a practice Japanese nationals who used to performof scrutinizing closely the family back­ tasks regarded as unclean or sinful such groundas of an applicant for employment, burying the dead, slaughtering animals andand the discovery of buraku or korean executing criminals. As a result of their ac­origins can engender discrimination against tivities they became a form of outcasts, liv­these people. To help to overcome their ing in ghettos and regarded as being outsidehandicaps, special educational assistance any recognised group. The situation has of been granted to Burakumin. Also a law their present day descendants has improved,has been enacted according to which public but they still suffer from some forms of offices should not enquire into the origins discrimination.2 of job applicants, but the question of whe­ Among the aliens, particular problems ther this law equally applies to the private arise in relation to the Koreans. Manysector is uncertain. Koreans were brought to Japan by force Cases have occurred of Koreans or Chi­ following the annexation of the Koreannese being dismissed from their occupa­ peninsula by Japan. They constitutedtions after their identity was discovered. cheap labour for strenupus tasks, such asHowever, following a recent court ruling constructing dams, railways and roads, andbased on the Labour Standards Law and coal mining. Today, there are aboutthe civil code, a Korean was reinstated in 650,000 Koreans living in Japan, 85% ofsuch a case. This precedent should facili­ whom are second and third generation Ko­tate compliance with Japan’s obligations

1) Ibid; p. 3 2) Japan’s outcasts — The problem of the Burakumin, Minority Rights Group, Report No. 3, March 1971. under article 6 of the Economic and Socialment for private housing. Covenant (relating to the right to work) While the Covenant on Economic, Social and article 2(2) (relating to non-discrimina­and Cultural Rights calls for a progressive tion on grounds of national or social ori­implementation of its provisions, ratifica­ gin). tion of the Covenant on Civil and Political Mention may also be made in this re­Rights, on the other hand, means that the spect of the situation of women. Sincecountry concerned pledges itself to comply 1945, the status of women has greatly im­immediately with its provisions. proved in Japan, and perhaps this is one of The Civil and Political Covenant pro­ the country's most important human rightstects the right to participate in political achievements. However, with regard to em­activities, which stems from the recogni­ ployment, women are still subject to dis­tion of freedom of expression (article 19), crimination in job opportunities, remunera­of assembly (article 21) and of association tion and advancement, as in most other(article 22). The issue of such freedom for countries. Even in the public service thisaliens is certainly not peculiar to Japan, as discrimination appears to exist. Out of aliens’ political rights are limited in all about 120,000 executive and administra­countries. The extent to which the Cove­ tive civil servants, less than 1% are women.nant on Civil and Political rights, and in All Japanese benefit from healtha insur­ particular the right to take part in political ance system that also covers foreigners activities, applies to aliens is unclear. The working in business organisations withmatter has been studied in the Commission more than 5 employees. But foreignerson Human Rights and in its Sub-Commis­ who are self-employed or who work in sion, following which a draft declaration smaller businesses are not entitled to itson the rights of non-citizens was submitted benefits unless they reside in areas whereto the ECOSOC this year. It has not yet special ordinances have extended such pro­been approved and it is now being circulat­ tection to them. ed to all governments for comment. With regard to social security, important However, the situation of Koreans in Ja­ welfare measures have been taken in favourpan gives rise to particular problems. For of the Burakumin. The Livelihood Protec­practical purposes the Koreans in Japan en­ tion Law, established in 1950 to provide joyed the right to vote as from 1928 until protection to destitute persons, guaranteesthey lost it along with their Japanese citi­ the Japanese a minimum standard of living,zenship in 1952. The deprivation of this and a Health and Welfare Ministry noticeright has been much resented and Koreans instructed local officials that livelihood as­have claimed its reinstatement ever since. sistance may be extended to foreigners, butLike other aliens, they are entitled to take these are not yet recognised as rights. Fol­part in political activities, but they are ex­ lowing a demand made by the Korean resi­posed to the possibility that their activities dents' union, the government has recentlymay lead the government to refuse to re­ opened public housing to them, but itnew their permit of residence. This is illu­ seems that this measure only applies to cer­strated by a.recent decision of the Supreme tain areas. The Koreans have also made de­Court. A US national, McLean, who had mands concerning other matters such as workedal­ as a teacher for nine years in Japan, location of state children allowances, ad­expressed his opposition to the american mission to the National Pension Fund, andintervention in Viet-Nam and to the Japa­ loans from the National Treasury of Invest­nese support for the war under the US- Japan security treaty. In consequenceCourt. he Mr Park, a Korean sentenced to five was refused an extension of his visa. He ap­years imprisonment was released after hav­ pealed to the courts against the decision. Ining served three years, but was sent imme­ McLean v. Japan1, the Supreme Court rul­ diately to Omura Detention Camp, a camp ed that aliens certainly had the right, as fora illegal entrants and persons due to be general principle, to engage in political ac­deported. Mr Park filed a petition for stay tivities. But it added that the immigration of the execution of deportation, and asked authorities were “allowed to refuse renewal to be freed so that he could be reunited of a period of stay to McLean on the with his family, pursuant to Article 23 of ground of his political activity which wasthe Covenant. On 17 March 1978, his peti­ lawful”. Moreover the court said that, intion was rejected on the ground that the refusing a visa extension, the MinisterCovenant of did not, at that time, bind the Justice was under no obligation to disclosecountry legally, and that since his family his reasons. could follow him to Korea, the unity of One Japanese commentator castigated the family was not endangered. this decision as being “nothing but the pro­Other issues have arisen in relation to hibition of the exercise of aliens’ lawfullythe cultural rights of minorities. Article 27 regarded rights”2. This may be its effect, of the Covenant on Civil and Political but the decision is also one which upholdsRights prohibits the denial of the right of a right which most governments claim,minorities to enjoy their own culture and namely the right to expel aliens they consi­use their own language. Koreans contend der undesirable. Whether or not an abso­that the japanese policy has sought and still lute discretion in this respect is compatible seeks destruction of their culture, and they with the International Convenant onare Civil asking that action be taken to transmit and Political Rights remains to be deter­ their culture and language correctly to the mined. coming generations of Koreans in Japan. A question which concerns particularly It can be seen from this brief review the Burakumin and the Koreans relates that to a number of issues may arise concern­ the right to marriage recognised under Ar­ ing Japan’s compliance with the two Cove­ ticle 23(2) of the Civil and Political Cove­ nants in relation to discrimination, and nant. The problem here is a social ratherthat by no means all of them arise from than a legal one. Marriages in Japan arelegal provisions, or gaps in legal instru­ generally preceded by a process of enquiryments. Some of them are the result of cus­ about the origins of the future spouses.toms, of states of mind, which cannot easi­ Discovery of Buraku or Korean origins willly be changed. In any case, discrimination almost inevitably provoke the rupture ofof this kind is not peculiar to Japan. Japa­ the engagement because of family opposi­nese institutions like the civil liberties tion. Commissioner might well be able to help in The question of theprotection of thereorienting attitudes, but unfortunately family by the state (contained in Articleonly Japanese citizens can resort to them. 23(1) of the Civil and Political Covenant)However, according to Article 98(2) of the was recently raised before the Tokyo Main1947 Constitution, “the treaties concluded

1) McLean v. Japan, Hanrei Jiho No. 903 (1 December 1978), pp. 3—20 (Supreme Court, Grand Bench, 4 October 1978). 2) Shunsuke Nomoto, “Are foreigners entitled to human rights”, the Japan Times, July 15,1979, p. 12. F

by Japan and established laws of nationsmay need to be taken urgently, since the shall be faithfully observed". Therefore, rights protected by the Civil and Political the ratification by Japan of both Cove­Covenant are rights which should be secur­ nants may place in the hands of thoseed immediately. claiming to suffer discrimination a new In the 1978 case before the Tokyo Main weapon for the protection of their rights. Court mentioned above, the Court refused In any event the Japanese governmentto have uphold a provision of the Covenant be­ now assumed an obligation not only cause to it had not yet been ratified. It will be amend or remove laws which may be in­interesting to see whether, now that the consistent with the Covenants, but alsoCovenant to is in force, the courts will be take special measures to remedy the prob­ more ready to enforce its provisions di­ lems of the kind described above. Some rectly.

NIGERIA (8) organisation of “genuinely national po­ litical parties”; (9) State and Federal elec­ Nigeria has been under military ruletions. since 1966 when General Gowon came to The programme would be planned “very power by a military coup. He was replaced, carefully” and “without rush". The target following another coup, by General Murtalayear for return to civilian rule was 1976. Ramat Mohammed, who established him­ The first step was to be the preparation of self as a man of remarkable vision anda new draft Federal Constitution followed powers. After his assassination in an abor­by the convening of a Constituent As­ tive coup on February 13, 1976, the Su­sembly. The final stage was to be the orga­ preme Military Council unanimously nisation ap­ of free and fair elections contested pointed Lieutenant-General Obasanjo at theby political parties which, General Gowon age of 39 as his successor. He has fulfilled said, would not be the parties of the “old his pledge to follow the policies of his pre­ days of permanent crisis and mutual black­ decessor, and in particular his programme mail”. for the return of the country to civilianIn October 1974 he announced that the rule. resumption of political activities and other Already in 1970 General Gowon hadplans for return to civilian rule were post­ put forward plans for a return to civilianponed till further notice, because a precipi­ rule, set out in a nine-point programme:tate military withdrawal would “certainly (1) reorganisation of the armed forces; throw the nation back into confusion”. (2) implementation of the national devel­There followed a public outcry. A year opment plan and repair of civil war damage;later the new Head of State, General (3) eradication of corruption; (4) settle­ Mohammed, responding to these feelings of ment of the question of more states in thedisappointment among the population, an­ federation; (5) preparation and adoption of nounced a detailed timetable for handing a new constitution; (6) introduction ofover a power to a democratically elected civi­ new formula for allocating revenue to thelian government by October 1979. He pro­ states; (7) a national population census;posed the following main stages: (1) By September 1976, the number of and decentralisation. It was added that the states in the federation would be in­government favoured a system of an “exec­ creased from 12 to a number to be de­ utive president” with strong but clearly de­ termined on the basis of a special com­ fined powers and nation-wide representa­ mittee’s report; tion in his cabinet. A draft Constitution (2) a draft Constitution would be prepar­was published for public debate in October ed, to be debated by a Constituent As­ 1976. sembly; (3) by October 1978, new elected local governments would be established,Local elections candidates standing on individual merit without party politics; In November—December 1976 the next (4) a Constituent Assembly, partly electedphase proceeded with the elections of local and partly nominated, would considergovernment councillors which was linked and accept the draft Constitution; with a comprehensive local government (5) the ban on political activities would be reorganisation. The purpose of this large- lifted and political parties would be scale and expensive operation was on the able to start preparing for a series of one hand to make the administration at the elections at state and federal level lead­ local level more uniform, and on the other ing to a final handover by the militaryto “stimulate democratic self-government”. on 1 October 1979. Although some observers expressed their doubts about the desirability of allowing state governments to opt for indirect elec­ The number o f States tions (using existing bodies) rather than direct elections, it was generally agreed On February 3, 1976 it was announcedthat this event was important both in lay­ that the number of states was increaseding a new foundation for the administra­ from 12 to 19. This was done in order to tion and as a preparation for further and achieve a better-balanced division of themore democratic elections. Federation, a matter of considerable poli­ tical sensitivity after the civil war. The Constituent Assembly

The Constitution On August 31, 1977 the local govern­ drafting committee ments elected 203 members to the Consti­ tuent Assembly and another 30 were ap­ A 50-member committee was set up on pointed by the Supreme Military Council. October 5, 1975 under the chairmanship ofSupreme Court Justice Udo Udoma was ap­ Chief F.R.A. Williams, a well-known law­pointed Chairman and the members of the yer from Lagos. The great majority were Assembly were given parliamentary immu­ civilians with political, academic or admin­nity. Although the basic proposals of the istrative backgrounds. It acted within broad draft Constitution were accepted by a large guidelines laid down by the military gov­majority of the Assembly, there was consid­ ernment, which inter alia stressed nationalerable debate on a large number of amend­ unity (avoiding the “arousing of tribal fren­ments. The draft Constitution, as adopted, zies”), and the need for consensus politicswith nearly 300 clauses is one of the world’s most detailed, and includes the following- Rights of assembly and association in­ main features: clude the right of every citizen to form - Nigeria is a federation with strong unita­ or belong to a political party. Political ry elements. An executive president is parties have, however, to register their elected by a majority of votes in direct constitution and the composition of elections, but he must obtain at least their leadership with the Electoral Com­ one quarter of the votes cast in two- mission and must have their headquar­ thirds of the states. ters in the federal capital. They must - There is a House of Representatives of avoid names, emblems or activities with 450 seats divided proportionally to the “religious or ethnic connotations”, and populations of the states, and a Senate they must ensure that at least two-thirds with 95 seats, five to each state. The Na­ of the 19 states are represented on their tional Assembly is to debate in english, executive membership. Their finances but the State Assemblies can also use are subject to supervision by the Electo­ local languages. A two-thirds majority in ral Commission. each House is required to enact legisla­ - Other fundamental rights include the tion to which the President refuses as­ right to freedom of expression and in­ sent. State Assemblies have independent formation, providing that nothing in legislative powers in certain areas but ap­ these provisions shall “invalidate any proximately 70 items are specified in an law that is reasonably justifiable in a “exclusive legislative list" which are the democratic society” for the purposes of responsibility of the National Assembly. protecting defence, public safety, confi­ - There is an independent judiciary withdentiality, maintaining the indepen­ power of judicial review of all legisla­ dence and authority of the courts or im­ tion. A provision in the draft Constitu­posing restrictions upon public officers tion establishing a Federal Sharia Court or members of the armed forces and the of Appeal presided over by the Grand police. No citizen can be arrested or de­ Mufti, as an appeal court from the State tained for more than 24 hours without Sharia Courts in those northern states being informed of the charges against where the Islamic system of family law him, or held more than 2 months with­ is optional for their citizens, was heavily out having appeared before a court of contested by a small majority in the law. Constituent Assembly. They considered The Assembly completed its work on it was discriminatory and in contradic­June 5, 1978 — four months ahead of tion with the constitutionally prescribedschedule — and the chairman adjourned the equality of religions. A compromise pro­ meeting sine die, although the Assembly posal was adopted, which provided that was not formally dissolved. In a subsequent the secular Federal Court of Appeal statement a group of 101 members expres­ should hear Sharia cases by “three sed their dissatisfaction with the proceed­ judges of appeal who are versed in ings, in particular the lack of debate on Islamic law”. The “pro-Sharia” minority amendments to create new states, and the left the Assembly in protest, but theyindefinite adjournment of the Assembly returned reluctantly after the Head ofwithout resolving the issue of how the State, Lieut.-General Obasanjo, had ad­Constitution was to be enacted. In their dressed the Assembly on the need for view the enactment should be by the As­ unity. sembly with only a formal promulgation r

by the Supreme Military Council (SMC).sion announced a retrospective increase in However, the majority adopted the govern­students’ board and lodging fees, the stu­ ment’s proposal that promulgation, with dents’ organisations called for a boycott possible amendments, would be done by aand organised large demonstrations outside decree of the SMC. the campus. The military government re­ sponded with force and arrests. The han­ dling of the increase in fees, and the way in The road to elections which the students' demonstrations were dealt with by the security forces, stirred In preparation for the elections in 1979public indignation. the Federal Electoral Commission (FEDE- On September 21, 1978 the Federal Mil­ CO) carried out a nation-wide voters’ itary Government ended the state of emer­ registration which resulted in a list ofgency which had been imposed in 1966 47,433,000 qualified voters (indicating a and finally lifted the ban on political activi­ total population of well over 90 million). ties. An electoral decree on the conduct of the The electoral regulations and the deci­ elections contained progressive provisionssions by the FEDECO, from which no judi­ for government financing of the campaign­cial appeal was allowed, limited the num­ ing by political parties. ber of parties with a sufficient degree of In July 1978 the SMC gave furthernation-wide support to five2. FEDECO proof of its intent to hand over power to aalso disqualified more than a thousand can­ civilian government by withdrawing didates, the including one of the presidential military governors of the 19 states, andcandidates, Alhaji Aminu Kano, for not providing that military officers who wished having made tax declarations, and many to seek office in the government mustheavy legal battles were fought challenging resign from the army within a month. the authority of the FEDECO. In the end One of the major problems to be resolv­ several candidates, including Kano, were al­ ed before returning to civilian rule was thelowed to enter the elections at a later stage. demobilisation of nearly half the 220,000 strong army. Progress on this was, however, disappointing. In the 1978/79 budget theElections allocation to the defence department was maintained at a high level in order to The FEDECO scheduled five elections, achieve the release of soldiers “prepared with weekly intervals, from July 7 to for civil life”. A sharp drop in oil reve­ August 11, 1979. Starting with senatorial nues1 , revealing the lack of diversificationelections, through elections for the House of Nigeria exports, and a slow agricultural of Representatives and for the State As­ development forced the military govern­semblies, the gubernatorial and presidential ment to make serious cutbacks in publicelections were to be the final stage. If nec­ spending for 1978/79. When as a conse­essary run-offs for gubernatorial and presi­ quence the National Universities Commis­dential elections would be held through an

1) Resulting from a collapse in the world oil demand, the fall of the dollar and logistic problems with­ in Nigeria. 2) For a critical statement by the Nigerian Bar Association see Bulletin of the Centre for the Indepen­ dence of Judges and Lawyers, No. 3, ICJ/Geneva. 1 electoral college, in the president’s case quarter in 12 states and 0.6 of a quarter consisting of the National Assembly and(15%) in a thirteenth state. Their interpre­ the State Assemblies. tation was sustained by the FEDECO in a In spite of nationally-worded program­ruling which was heavily contested by their mes and policy statements the campaigningadversaries, but many observers thought it was more and more done on local issues, preferable to the political chicanery which and polls indicated that the strength of par­they anticipated in a run-off election by ties tended to be linked intimately to thethe electoral college. home states of their leaders. This was to a large extent confirmed in the outcome of the senatorial elections in which the Na­ tional Party of Nigeria, headed by Shagari, The handover won 36 out of 95 seats, followed by Awolowo’s United Party of Nigeria with 28 On October 1, 1979, Shagari was inau­ senators. It became clear however that the gurated as the first President of the Second NPN was the most broadly based, winningRepublic after nearly fourteen years of 36 seats from twelve states against the UNP military rule. with 28 seats from only seven states. The The SMC, just before passing on power other elections showed a similar ethnic-to the new President, enacted a spate of religious bias and a similar pattern of the decrees including a number which made NPN leading, with the UNP as a strong sec­changes in the new Constitution. The Na­ ond, trailing not only in seats but alsotional in Security Organisation, which was nationwide distribution of votes. originally to be suppressed, was retained, The presidential election was won byand the provision in Presidential elections Aliji Shehu Shagari of the NPN, althoughfor a run-off in an electoral college was only after a curious calculation problemchanged to a run-off by popular vote. In was resolved in his favour. The successfuldoing this the military government may candidate had to receive a quarter of the have saved the new government some com­ votes cast in at least two-thirds of the 19 plicated and time consuming procedures states. As two-thirds of 19 is 12.6 many for amending the Constitution, but it has people believed this to mean that Shagari been criticised as setting a bad example in would need 25% of the votes in 13 states. respect for the popularly approved Consti­ When the results indicated that he had wontution. 25% in 12 states and only 20% in a thir­ The new Constitution provides that teenth state, the political world started to control of the government of Nigeria can prepare itself for the negotiations andbe lawfully assumed only through the pro­ trade-offs inherent in a run-off electioncedures of laid down in the Constitution. In the kind envisaged. Shagari's party howeverspite of the gratitude which was expressed claimed that the constitutional require­towards the voluntarily retiring military ments were fulfilled as 25% of the votes inrulers, this provision will be foremost in two-thirds of the states could also mean a the minds of Nigeria's politicians. r

PAKISTAN AND BANGLADESH ties intending to contest the elections. The parties were required to complete elections Eight years after Bangladesh became in­within their ranks annually, to submit their dependent from Pakistan the political con­accounts for scrutiny, and to apply for re­ ditions in the two countries are in stronggistration with the electoral commission, contrast to each other. In Pakistan a milita­which could refuse to register any party ry dictatorship has once again postponedwhich it considered to be critical of the mi­ parliamentary elections; in Bangladesh litary a or the judiciary or not based on the military dictatorship has been peacefullyideology of Pakistan. All except two of the replaced by a democratically elected civil­ major political parties refused to apply for ian government. registration and a month before the sched­ uled date the elections were once again postponed by the government. All political Pakistan activity has been outlawed; all political par­ ties have been banned, their offices sealed The army took over in a bloodless coup and their bank accounts frozen. Several in July 1977 after several months of politi­political leaders, including the widow and cal violence which erupted when the politi­daughter of Bhutto, are under house-arrest. cal opposition accused Zulfikar Ali Bhutto The ban on political activity comes as no and his ruling People's Party of having rig­surprise. Although President Zia promised ged their massive victory in the electionsthere would be no “witch-hunts” when he held earlier that year. On taking over, Gen­seized power, there have been extensive ar­ eral Ziaul Huq emphasised that he had norests and prosecutions before special tribu­ political ambitions and would returnto the nals of politicians, mainlyfrom Bhutto’s barracks after organising “free and fair” party. By the government’s own admission elections in October 1977. His caretaker some eight hundred people had been de­ government, however, cancelled the elec­tained during the first year of his rule; that tions a fortnight before they were to havenumber may safely be doubled now with­ been held on the grounds that the politicalout fear of exaggeration. turmoil was too great for an orderly return President Zia justifies the postponement to civilian government and that the “pro­of the elections and the continuation of cess of accountability" - the judicial scru­military rule on the grounds that priority tiny of the Bhutto government’s five andmust a be given to the establishment of half years in power - must first be com­Nizam-i-lslam (the Islamic Order). The pleted. Bhutto was charged with havingConstitution has been amended to provide ordered the killing of a political opponent, separate electoral registers for Moslems and and after a much publicised and controver­non-Moslems, and the government can ban sial trial, was convicted and sentenced toany political party not considered to be death. Despite pressure from home and based on Islamic ideology. The courts have abroad for clemency, the sentence was car­been empowered, on government or indivi­ ried out in April 1979. dual petition, to examine and decide whe­ The “process of accountability” havingther a law violates the injunctions of Islam been satisfied, parliamentary elections wereas laid down in the Koran and the Sunnah. called for November 1979, but at the same In other words, the supremacy of the time the military government imposed a se­Sharia has been declared over the law of ries of stringent conditions on political par­the land. Features of traditional Islamic law, in particular relating to the punish­The regime has banned the publication ment of adultery, rape, theft, and drinkingof all newspapers and magazines which it alcohol, have been introduced as amend­considers have been "poisoning and pollut­ ments to the criminal law. In the area ofing” the atmosphere. They include two civil law, the most notable feature is thenewspapers owned by the People’s Party. government’s commitment to create anAs regards the others, the government has "interest-free economy” and the institu­indicated that official censorship will be tion of Zakat (wealth tax) and Ushr (agri­lifted soon. Instead, editors and journalists cultural tax) funds. Parts of these provi­will be given guidelines by the regime pro­ sions have been strongly criticised by thehibiting publication of political reports and Shia minority (about 30% of the popula­interviews with politicians because of the tion) for being based on the Sunni inter­ban on political activity. Journalists trans­ pretation of Islamic law. gressing the official lines are subject to ar­ Criminal punishments under the Coderest and punishment, including heavy fines, include stoning to death for adultery orimprisonment and flogging. fornication with a virgin, amputation of The Constitution of 1973 is still in oper­ the hand for theft, and flogging for a rangeation in theory, though in practice it is of other offences. By a martial law decree a constantly overriden since martial law de­ series of mobile summary military courts crees openly state in the preamble: “Not­ have been set up to be sent into the differ­withstanding anything to the contrary in ent areas with the power to order on-the- the Constitution...” The regime has also spot punishment. The right of appeal toignored the decision of the Supreme Court civilian courts has been abolished. Thoughin 1977 which legitimised the military medical personnel are present at the flog­coup as an extra-constitutional step justifi­ gings to check the condition of the prison­ed by the doctrine of necessity and Presi­ ers, victims are often lashed into unconsci­dent Zia’s promise to hold elections, but at ousness. The public punishments are wellthe same time limited his powers to legis­ attended, and though criticised by intellec­late or change the Constitution to those tuals, they appear to be regarded by the areas judicially recognised as falling within general public with approval. the doctrine of necessity. There is concern Stern punishments are also applied tothat he may use his Islamisation policy to political offenders, although it is doubtful support more fundamental constitutional whether there is any justification for this changes.in Already he has remarked that the Islamic law. In the past two and a half Moslem mentality is more suited to the years several hundred people have beenrule of one man, and that the concept of flogged for political offences, some as trivi­ political parties and parliamentary elec­ al as shouting slogans supporting thetions are alien to Islam. He has also said People’s Party. Under martial law, punish­that “under (Islam) only right decisions ment for organising or attending a publicprevail, and the majority verdict, if mis­ meeting or procession without permissionguided, is ignored”. is up to seven years imprisonment; for anyThe latest postponement of the elec­ political activity it is up to five years impri­tions has been greeted largely with public sonment and flogging. All industrial actionsilence, but this is hardly likely to continue is banned and trade union activity is pun­with rising inflation, suppression of civil ishable by up to three years imprisonmentliberties, and tension in the provinces bor­ and flogging. dering Afghanistan. Under these circum­ stances, unless the regime keeps it promise those charged with martial law offences. to hold general elections, it is likely to have However, despite the high-handed man­ to resort to even more drastic measures to ner of suppressing political agitation, the suppress popular agitation. military government gradually brought the country back to the rule of law under a civilian government. In 1977 that part of Bangladesh the Fourth Amendment abolishing the sys­ tem of elected local representatives was re­ Unlike Pakistan, Bangladesh, under Pres­pealed, followed by municipal elections. In ident Ziaur Rahman, has returned to June a 1978 the President was elected on the democratic government after three and abasis of direct adult suffrage, and in Feb­ half years of military rule. The circum­ruary 1979 parliamentary elections were stances under which the army came toheld. General Ziaur Rahman, the military power in 1975 were similar to those in ruler, was elected President and his party Pakistan in 1977. Shortly after gaining wonits two-thirds of the seats in Parliament. independence in 1972 Bangladesh adoptedAccording to independent observers, the a constitution establishing a parliamentaryelections were fairly conducted. democracy with an independent judiciary The parliamentary elections were pre­ (see ICJ Review No. 10), but in 1974 ceded by the repeal of laws restricting civil Sheikh Mujibur Rahman, using his party’sliberties. The martial law regulation of overwhelming majority in Parliament, sus­1976 which required all political parties to pended the fundamental rights under thereceive prior approval from the authorities Constitution and in 1975 passed an amend­before functioning was repealed. Many po­ ment (the Fourth Amendment) replacinglitical prisoners were released, restrictions the parliamentary system with a one-partyon the press were withdrawn and the fun­ state and a presidential form of govern­damental freedoms which had been sus­ ment. The Amendment took away thepended in 1974 were restored. Martial law courts’ power to uphold constitutionalwas lifted after Parliament met in April rights and made the judges’ tenure depen­1979. dent on the will of the President. The system of government remains a After the assassination of Sheikh Muji­presidential one, rather than the parliamen­ bur Rahman in August 1975 and followingtary type envisaged in the 1972 Constitu­ a number of military coups and counter­tion. However, prior to the general elec­ coups, General Ziaur Rahman came totions, the President announced that all power in November 1975. His military gov­ “undemocratic provisions” of the 1975 ernment dealt harshly with political unrest,Fourth Amendment had been repealed. A applying the Special Powers Act of 1974 Prime Minister commanding the confidence (see ICJ Review No. 12) and various mar­of Parliament would be appointed, and the tial law regulations. In a report in 1977Cabinet would be responsible to both Presi­ Amnesty International drew attentiondent to and Parliament. The President gave as­ thousands of political prisoners, many ofsurances that Parliament would be sover­ whom were being detained without trial, toeign within the presidential system, summary executions, martial law courts foralthough any decision by Parliament to civilians who had no right of appeal to thechange the governmental system must be civilian judiciary,in camera proceedings, submitted to a referendum. During its first and the denial of habeas corpus or bail tosession Parliament accepted these proposals as an amendment to the Constitution. Theof the right of appeal to the prosecution President is the chief executive, but Parlia­against an acquittal or inadequacy of sen­ ment retains the right to censure or im­tence. Committal proceedings have been peach him. substituted by direct trial after the accused There was some concern about Islamichas received written statements of the pro­ revivalism in Bangladesh, which has a largesecution's case against him. The latter pro­ Hindu minority, following a constitutionalvision can cause hardship in a case where a amendment of 1977 which made “absolutedefendant might otherwise have been able trust and faith in Allah”, instead of secular­to get the charges dismissed at the commit­ ism, one of the fundamental principles oftal stage and hence avoid a trial. The new the Constitution and state policy. How­law contains an interesting provision: any ever, the new government has denied anyperson who believes he may be arrested can intention of proclaiming Bangladesh apply an to a court for a direction that in the Islamic republic or of providing separate event of his arrest he shall be released on electoral rolls for Moslems and non- bail. In a country where the legal machine­ Moslems, and has reaffirmed article 28(1) ry is slow, this may prove to be a useful of the Constitution which grants equal sta­protective device. tus to all citizens irrespective of their religi­ The return to cilivian rule is to be wel­ ous beliefs. comed. The new government, however, The Fourth Amendment restrictions onfaces several problems. The relationship be­ the judiciary have also been repealed, andtween the President and the army is un­ in 1977 a Supreme Judicial Council wasclear; and, in a country where economic is­ formed to establish guidelines for the con­sues determine the dynamics of politics, a duct of judges, who might be removed severe spring drought has increased food from office by the President on the recom­prices, and popular discontent is open to mendation of the Council. As the powersexploitation by politicians. The President of the courts have been returned with thehas called for a “new revolution”, which slackening and finally the lifting of martialsome interpret as meaning massive land re­ law, many political detainees have beenform and a restructuring of the country’s released on habeas corpus applications. Ac­civil administration. The reforms will not cording to the Home Ministry, there arecome easily, if at all, because the rank and now some three hundred political prison­file of the ruling party is made up of land­ ers, several of whom are serving sentencesowners, and streamlining the administra­ for corruption in public office. tion may meet with opposition from the Significant reforms of the criminal andcivil service on which the government civil procedure have been made by Ordi­heavily relies. The future of democracy and nance XLIX of 1978, mainly to simplifythe rule of law in Bangladesh will depend and speed up the trial process. Some of the largely on whether this “new revolution” changes are of substantive importance,can be brought about with the cooperation such as the abolition of trial by jury orof Parliament in a peaceful and constitu­ with the aid of assessors, and the grantingtional manner. p

SINGAPORE

Member of Parliament detained over 16 years without trial

The Inter-Parliamentary Union (IPU)which is arose recently in the Council con­ an important non-governmental organisa­cerning his case. tion with a membership of parliamentari­ Mr Lee Tong has been held in preventive ans from 88 countries. or administrative detention in Singapore In recent years one of its concerns hasfor over 16 years without trial and without been the predicament of parliamentarianseven being brought before a court. He was in various countries who have been detain­elected in 1963 to the Legislative Assembly ed for long periods, often without trial. Inof Singapore which, when Singapore left 1976 it established a Special Committee on the Federation of Malaysia in 1965, be­ Violations of Human Rights of Parliamen­came the national Parliament of Singapore. tarians to investigate the cases of parli- Mr Lee was arrested shortly after his mentarians “who have been subjected election to in 1963 under the provisions of arbitrary actions” during the exercise ofthe Internal Security Act, 1960, for having their mandate, and to report with recom­ led a strike. The government alleged that mendations to the Inter-Parliamentaryhe “actively, knowingly and willingly sup­ Council. The Committee has five membersported the armed revolution perpetrated who at present come from France (Chair­by the Communist Party of Malaysia”. Mr man), India, Venezuela, Yugoslavia andLee is a trade unionist. He belongs to the Zaire. Barisan Socialist Party, and is not a com­ When this Special Committee beganmunist. He insists that he did not apply operating in January 1977 the Interna­violence and “has nothing to do with it”. tional Commission of Jurists joined with On October 18, 1966, while still in pris­ Amnesty International and the Interna­on, Mr Lee resigned his seat in Parliament tional Association of Democratic Lawyers in accordance with a decision of his party. in submitting to it 29 cases of parliamen­This was intended as a temporary measure tarians who were known to be in deten­to bring to public attention the govern­ tion. The International Commission ment's of behaviour towards him. Jurists has also submitted on its own some Mr Lee, who is of Chinese origin, was other cases of arbitrary actions against par­later deprived of his Singapore nationality. liamentarians. The Special Committee has The government has offered to release now considered a total of 65 cases, and has him if he reported on 38 of them to the Inter-Parlia­ mentary Council. Eleven parliamentarians(1) gives up politics; have been liberated following representa­(2) makes a public statement that he dis­ tions by the Special Committee or the avows and renounces the armed strug­ Council. gle espoused by the Communist Party One case in which, as yet, there has of Malaysia to overthrow the constitu­ been no release, is that of Mr Lee Tee Tong tionally elected government of Singa­ in Singapore. It is of particular interest ow­ pore, and ing to the length of time during which (3)he will become a member of the ex-de­ has been detained, to the great moral cour­ tainees Association (a ‘rehabilitation’ age which he has shown, and to a debate organisation). Alternatively, he would be released un­ country that may wish to accommodate conditionally if he went back to his coun­him; try of origin or to some other country of— Mr Lee Tee Tong has been interviewed his choice. by (a representative of) the International Mr Lee has refused these offers. He is Committee of the Red Cross on 29 April not prepared to make the required state­ 1974 and 30 January 1975”. ment as it would imply an acknowledge­ ment that he had supported an armed The “facts” provided by the Singapore struggle espoused by the Communist PartyInter-Parliamentary Group were in sub­ to overthrow the government which, hestance a repetition of the government’s al­ says, is not the case. Nor is he prepared to legations against Mr Lee and the terms of leave the country. He feels that the offersthe offers made to him. and conditions proposed to him are un­ The IPU Secretary General then asked democratic. He does not want to go abroad the government for a copy of the reports and abandon his ideals. On the contraryof he the International Committee of the Red wants to continue his work in what he Cross, re­ but these were refused on the gards as his country, including his uniongrounds ac­ that “in the view of the competent tivities and the struggle for socialism authorities the case of Mr Lee Tee Tong is through a democratic process and by dem­ not within the purview or the concern of ocratic means, inside and outside Parlia­the Inter-Parliamentary Union”. ment. He considers that banishment andThe Inter-Parliamentary Council rejected deprivation of citizenship, especially whenthe argument that they had no jurisdiction he has never been charged with any and of­ requested and obtained the agreement fence, are a violation of his human rights.of the competent authorities to send a If Singapore is a democratic country ruledmember of the Special Committee (Mr S.N. by law, only democratic and lawful meansSinha of India) and the Secretary General should be used against him. to Singapore to interview Mr Lee. They In May 1978 the Inter-Parliamentarywere able to see him in all for 3 hours and Council were notified that a request hadto satisfy themselves that they understood been refused by the authorities for a lawyercorrectly his attitude. designated by the IPU to be allowed to in­ Mr Lee was seen at the Moon Crescent terview Mr Lee to obtain his observationsCentre, a wing of the Changi prision, to on the reasons for and circumstances of thewhich he had been returned only 5 days prolongation of his detention. The reasonspreviously, after being held in an Interroga­ given by the authorities for this refusaltion Centre for nearly 9 months. His condi­ were that: tions of detention at the Moon Crescent Centre were good, but Mr Lee said that — "Mr Lee Tee Tong is no longer a mem­those at the Interrogation Centre were ber of Parliament, having resigned hismuch harder. seat in 1966; When the Special Committee’s report — The Singapore Inter-Parliamentary and draft resolution urging the immediate Group has on two previous occasionsrelease as­ of Mr Lee were considered by the sisted by providing the facts of Mr Lee Inter-Parliamentary Council meeting at Tee Tong’s case; Caracas, Venezuela, in September 1979, — Mr Lee Tong is no longer a Singapore the Singapore delegation again urged that citizen and he is free to emigrate to anythe Council could not consider the case as Mr Lee was no longer a member of Parlia­ lar offer had been made to him when he ment. They also argued that Mr Lee “ac­was detained by the previous Portuguese tively and willingly engaged in activitiesregime, and that he had rejected it on the seeking the overthrow of the constitution­same grounds as Mr Lee. He urged the rejec­ ally-elected government of Singapore”,tion of the amendment. with active involvement in riots, that theIn the event the Special Committee’s re­ reason he had not been prosecuted forvised resolution was carried without amend­ these offences was that “those who step ment by 112 votes to 11 with 24 absten­ forward to testify against subversive ele­tions. The 11 opponents of the resolution ments do so at the risk of their own lives", all came from the five ASEAN countries in and that all he “has to do to secure his re­South East Asia with the exception of the lease is to give an undertaking that he willtwo delegates from New Zealand and one not engage in any more activities that seekfrom the United Kingdom. The resolution to overthrow the government by violence”.which was adopted, after reciting the right The New Zealand delegation presented in the International Covenant on Civil and an amendment to the Special Committee’sPolitical Rights of a person arrested or de­ revised draft resolution, proposing that tained on a criminal charge to trial within a “taking into consideration the opennessreasonable of time or to release, the right not the Singapore authorities and the Nationalto be compelled to testify against himself Group in dealing with this case, and theor to confess guilt, and the right in the Uni­ generally good record of Singapore with versal Declaration “not to be subjected to regard to human rights", the Councilarbitrary detention or exile or to be arbi­ should instruct the Special Committee “to trarily deprived of his nationality”, seek further discussion with Mr Lee Tee Tong, the Singapore Government and “1. Na­ Declares that the unduly long detention tional Group in order to achieve the release without trial of Mr Lee Tee Tong, as well of Mr Lee Tee Tong”. as the conditions set by the Government This was opposed by the Chairman of of Singapore for his release, are contrary the Special Committee in a reasoned reply. to the above-mentioned provisions of He established clearly the Council’s compe­ the Universal Declaration of Human tence to deal with the case, and on the is­ Rights and the International Covenant sue of substance argued that “no political on Civil and Political Rights and that context whatsoever can justify such a longthey are consequently arbitrary; deprivation of an accused person's right to2. Urges the Government of Singapore to be brought before a judge”. He asked why, release Mr Lee Tee Tong immediately if the authority of the Singapore Govern­ and unconditionally; ment was sufficient to permit the normal3. Requests the National Group of Singa­ holding of free elections, it would not be pore to do all within its power to that able to ensure the protection of a few wit­ end.” nesses. As to the offer made to Mr Lee for his release, he commented that the declara­ Mr Lee’s case is a wholly deplorable one, tion he was being asked to make “amountsand it is to be hoped that the Government to asking him to accuse himself of a crime of Singapore will, in the light of the Inter­ of which he declares he is innocent.”parliamentary Council’s overwhelming vote, During the debate one of the parliamen­reconsider its decision not to release him tarians from Portugal explained that a simi­from detention. COMMENTARIES

Human Rights Committee

The Human Rights Committee held its the Chairman to contact the Permanent 6th, 7th and 8th sessions in 1979: the firstRepresentatives of those states whose re­ in New York in April, and the other two inports were due in 1977. Geneva in August and October. The matter of overdue, late and incom­ At present 60 nations have ratified theplete submissions was further discussed at International Covenant on Civil and Politi­the October session. It was suggested that cal Rights, and 21 have ratified the Option­methods other than reminders should per­ al Protocol. The 18-member Committee haps be utilised, such as offers of assistance devoted most of its time to the examina­ to the state preparing the report. It would tion of periodic reports by states parties be quite in keeping with the task of the and of communications by individuals Committee, al­ which was to encourage states leging violations of their rights under theto comply with the provisions of the Cove­ Covenant by a state party to the Optionalnant, said one Committee member. The Protocol. The Committee also discussed failure of some governments to supply ade­ the problem of overdue reports, the draft­ quate additional written answers to ques­ ing of procedural rules, cooperation with tions put by the Committee during exami­ the Specialised Agencies, and organisation­nation of the initial reports was felt to be a al matters. related problem, but further discussion on the matter was deferred for the time being. Denmark, the Federal Republic of Ger­ Overdue reports many, Jordan, Libya, Madagascar, Mauri­ tius, Norway and Yugoslavia have agreed to Under article 40 (1), the states parties send supplementary information but have to the Covenant have undertaken to submitnot yet done so. reports within one year of the entry intoThe Committee decided to treat Leba­ force of the Covenant for the states partiesnon as a special case, and not to send any concerned and thereafter whenever thefurther reminders for the time being. As Committee so requests. As of October regards the others, the Chairman was once 1979, the following states’ reports due inagain asked to approach their Permanent 1977 has not yet been received: Colombia,Representatives at the United Nations. Jamaica, Lebanon, Rwanda and Uruguay. Of the reports due in 1978 those of Guyana, Panama and Zaire had not beenConsideration of reports received. At its April session the Committee de­ At its April session the Committee ex­ cided to send reminders to those states amined the initial reports submitted by whose reports were due in 1978, and askedChile, Bulgaria, Romania, Spain, and a sup­ plementary report by the United Kingdom.ignored the true situation in the country, In August the Committee studied the re­and asked for a further report analysing the ports of the Ukrainian SSR, as well as sup­manner in which each Covenant right is in plementary reports from Syria, Cyprus andpractice implemented, the rights which Finland. The report submitted by the Unit­have been derogated, and the justification ed Kingdom on behalf of its dependent ter­for and the extent of that derogation. The ritories was studied at both these sessions. Chilean delegate challenged the Commit­ In October the Committee studied the ini­tee’s competence to deal with “sources tial report of Poland and the supplementa­other than those provided for in the Cove­ ry report of Sweden. nant", i.e. the state party report, but never­ In examining the initial reports the Com­theless agreed to comply with the request mittee followed the established procedure for a new report. of having representatives of the state party The Committee found it helpful to be introduce the report, then listen to all theprovided with the constitutions of the questions and comments of the Committeestates submitting reports, and agreed that members before making a response. All re­ the measure should become a regular prac­ sponses were oral, although the state is tice. The Committee was encouraged to asked to give a written supplementarylearn the extent to which the new Spanish answer at a later date. The supplementaryConstitution embodies the provisions of reports were examined section by section,the Covenant, although the Spanish report with oral replies being made by the delega­ was inherently limited by the fact Spain is tion immediately after questions had beenstill in the process of drafting new legal put on a particular section. codes to give effect to some of these rights. The Committee’s questions, as at previ­ The Spanish delegation promised to keep ous sessions, were detailed and thorough,the Committee informed of the progress of placing as much emphasis on the factualhuman rights in Spain and to submit to it situation as on the legal norms in the coun­any relevant new legislation. tries concerned. Indeed, in ascertaining theThe questions asked followed the pat­ factual situation in Chile, the Committeetern established at previous sessions. Mem­ set a precedent by drawing upon materialbers expressed great interest in the status other than that supplied by the Chileanof the Covenant in internal law, what pro­ government. Committee members expres­visions took precedence in the event of a sed the view that the duty of the Commit­conflict between the Covenant and the in­ tee was to study the implementation of theternal legal order, whether the provisions Covenant and make such comments as ap­of the Covenant had the force of constitu­ propriate, and that in so doing the Com­tional law, and whether a person could in­ mittee should draw on whatever additionalvoke the Covenant before the courts and information it deemed useful, particularlyadministrative authorities. Members com­ when the information was drawn frommended the mention of relevant judicial competent United Nations bodies whichdecisions, notably in the reports of Cyprus had investigated and confirmed the exis­and Poland. The fact that the United King­ tence of violations of human rights. Rely­dom did not have a written constitution ing on the report of the Ad Hoc Workingand that the Covenant was not part of its Group of the Commission on Humaninternal law continued to give rise to vari­ Rights, the Committee decided that the re­ ous comments and questions by the mem­ port submitted by the Chilean governmentbers of the Committee. In the case of the Ukrainian SSR, information was requestedment had been abolished in Spain, they ex­ on the respective responsibilities of thepressed concern that it had been replaced Republic and the Union in the implementa­with excessively long prison sentences. The tion of the Covenant. The representativeUnited Kingdom was questioned on the use answered that the Union set forth certainof corporal punishment in some of its de­ basic principles and the Republics elaborat­pendent territories. ed their own legislation but every effort More information was also requested on was made in the Republics to standardise laws providing for non-discrimination, provisions reflecting the norms in the Co­especially with regard to political opinion. venant. The representatives of Bulgaria,It was felt important to know whether, in Romania, Poland and the Ukrainian SSRstates where the constitution had defined were also asked about the separation of its political position and social organisa­ powers between the executive, the legisla­tion, there was any room left for peaceful ture and the judiciary, in particular aboutdissent. Frequently clarification was sought the independence of the judiciary. Mem­on vague terms restricting freedoms of bers noted that constitutional provisionsopinion, expression and assembly, e.g. “in­ gave to the chief legislative organ, and notterests of the people", “public security”, the judiciary, the power to determine theetc. constitutionality of laws, and they asked In relation to socialist states, some questions about the extent of the compe­members wanted to know where the line tence of courts to enforce Covenant rights.was drawn between the prohibition of This issue was felt to be particularly rele­ compulsory labour and the obligation to vant in countries such as these where work. the The Ukrainian SSR was particularly Covenant is not incorporated in the domes­questioned on the offence of “parasitism”. tic law, but where the Constitution is said Except in the case of Chile, the Com­ to give effect to the provisions of the Cove­mittee commended the depth and compre­ nant. hensiveness of the reports. The seriousness Numerous questions were asked about with which the states regarded their obliga­ the legal rights of persons in detention. In­tions under article 40 was evidenced by the formation was also sought on the role ofquality of their reports and the high level the Procurator in Romania, Bulgaria, theof the delegations, noted by some members. Ukrainian SSR and Poland, and especially the manner in which he could ensure the protection of civil and political rights. Communications from individuals With reference to the right to life, equal emphasis was placed on the reduction of Under the Optional Protocol individuals infant mortality and on the preservationwho of claim their rights enumerated in the life of adulthood. Information was soughtCovenant have been violated and who have from countries which had not abolishedexhausted all available domestic remedies the death penalty on the offences formay submit written communications to the which the sentence could be imposed.Human Rights Committee for considera­ Some members felt that capital punish­tion. Consideration of communications ment for economic crimes was an exces­started at the Committee’s Second Session sively broad interpretation of the provisionin 1977. Since then 53 communications in article 6 (2) of the Covenant. While not­have been registered, and relate to Canada, ing with satisfaction that capital punish­Colombia, Denmark, Finland, Madagascar, Mauritius, Norway, Uruguay and Zaire. the six month time limit written explana­ At its recent sessions the Committee tion or statements in only four cases; these had before it new communications broughthad been considered irrelevant, but no to its attention for the first time, commu­reply was received to the Committee's re­ nications pending a decision on admissibili­quest for further information. ty together with further information from At its August session the Committee the authors and states parties concerned,concluded its consideration with respect to communications which had been declaredone of these communications, which was admissible on their merits, and recommen­made against Uruguay alleging three cases dations from the Committee's working of wrongful arrest and detention, torture group, set up under the Committee’s rulesand denial of a fair trial. In the Commit­ of procedure which met before and duringtee’s view the communication revealed each session. The meetings of the workinggross violations by Uruguay of various group and the Committee on communica­provisions of the Covenant, including arti­ tions were private and documents relatingcles 7, 9 and 10. The conclusion was trans­ to communications were only available tomitted to the author and to the govern­ Committee members. A summary of issues ment of Uruguay and was published. The discussed at the Sixth and Seventh Sessionssignificance of this case is that it is the was published in the Committee's Annualfirst one on which the Committee has Report. reached a conclusion on its merits, and that The Committee’s work in relation to the Committee has seen fit to use the most communications is divided into two mainpowerful weapon it possesses of putting stages: (a) determining whether they aremoral pressure on a state to remedy viola­ admissible under the Optional Protocol tions of human rights: publication of the (the Committee may decide at this stage to communication and the Committee’s views discontinue consideration of a communica­on it. tion without taking a decision as to its ad­ At its October session the Committee missibility); (b) considering the merits ofconcluded consideration of another com­ the cases, and formulating the Committee’smunication against Uruguay, alleging denial final views. of habeas corpus and ill-treatment during Under the Committee’s rules of proce­ detention. The Committee found that arti­ dure, a communication may not be declar­cle 9 (4) of Covenant had been violated be­ ed admissible unless the state party con­cause the law under which the complainant cerned has been given an opportunityhad to been detained did not provide for an submit information or observations rele­effective remedy to challenge the arrest. vant to their admissibility. Of the 20 com­On the question of ill-treatment the Com­ munications accepted as admissible by themittee could not find that there had not end of the Seventh Session, a numberbeen of ill-treatment and noted that Uruguay them were declared admissible on the basis had failed to show that it had ensured to of their authors’ information only, in viewthe complainant the protection against ill- of the fact that no information had beentreatment as required by article 2 of the received from the states concerned despite Covenant. In a case such as this where the requests by the Committee. At its Seventhsenior officials responsible for the alleged Session the Committee also considered act are named, the state party should fully seven communications on their merits. Theinvestigate the allegations in accordance government concerned had made withinwith its laws, and general refutations by Uruguay were considered to be insufficient.the judgment of the Committee, but only Six of the Committee went further thanthat the Committee could take account of this and concluded that in view of the lackthe comments in reaching its own conclu­ of any detailed refutation of the allegationssion. However, consensus was reached only the case of ill-treatment had been establish­on the following: information from special­ ed. The six members were the experts from ised agencies was necessary, but that infor­ Canada, German Democratic Republic, Jor­ mation should be carefully distinguished dan, Senegal, Tunisia and Yugoslavia. from comments or conclusions. Otherwise, it was said, there was a danger that the Committee might become a forum for non­ Cooperation with specialised agenciesmembers to hurl accusations at the states parties. It was agreed that information on The Committee had decided at its the practice and interpretation of relevant Fourth Session to transmit to the ILO andarticles by the ILO and UNESCO should be UNESCO the relevant parts of the reports made available to members, who were free of the states parties which might fall withinto use the information as they wished, but the field of competence of these agencies, the decision of the Committee remained but without asking them to comment onthat specialised agencies should not be in­ the extracts. At its Sixth Session the Com­vited to submit comments on the parts of mittee was informed of a letter from the the reports submitted to them. ILO reiterating its readiness to provide any information on matters within its compe­ tence which the Committee might want. Rules of procedure Fuller discussion of the question of co­ operation with the agencies was deferred Under article 41 of the Covenant a state until the Eighth Session, where the repre­party may make a declaration that it recog­ sentatives of the ILO and UNESCO werenises the competence of the Committee to asked to elaborate on the ways in whichreceive and consider communications from they felt they could be of assistance to theone state party to the effect that another Committee. Two main issues were discus­ state party, which has made a similar decla­ sed. ration, is not fulfilling its obligations under Firstly, as regards the information re­the Covenant. Following the entry into ceived from the ILO and UNESCO, it asked force of article 41 on 28 March 1979, the what would be the status of such informa­Committee set up a working group on rules tion. The precedent of using informationof procedure. from other UN bodies was pointed out in The Committee stressed that its rules the case of Chile, but the Committee ac­ should be general and flexible in order to cepted that such information could only accomodatebe different situations as they used as background material for eliciting arise and not to intimidate states parties answers from the states parties concerned.from making such a declaration. However, The second issue was whether or not theto avoid delay, especially in view of the 12- specialised agencies should submit com­ month limit imposed on them by article 41 ments and conclusions on the extracts(1) of (h) to review inter-state complaints, the reports transmitted to them. One mem­members argued that the procedural rules ber felt that the acceptance of such com­should be precise and clear on potentially ments would not mean a substitution confusing of issues, such as the admissibility of communications and the Committee'scedure must be initiated by one or both of competence to deal with them. the states parties concerned and can only The Committee also discussed the rela­ be applied with the consent of both parties. tionship of article 41 to article 42. Article However, the Committee may recommend 42 provides for a procedure to establish an that the states parties use the article 42 Ad Hoc Committee in the event that eitherprocedure. one or both of the states parties are not The draft rules of procedure, revised to satisfied with the outcome of article 41 take account of the points made during the proceedings. After some discussion it was Sixth Session, were unanimously adopted agreed that the failure of article 41 to solve at the Seventh Session. The rules will be a dispute did not automatically lead to the found in Annex III to the 1979 report of application of article 42, but that this pro­ the Committee to the General Assembly.

UN Sub-Commission ON DISCRIMINA TION AND MINORITIES

The Sub-Commission on Prevention this of subject in order to make general recom­ Discrimination and Protection of Minori­mendations to the Commission, and to ex­ ties met in Geneva from August 20 to Sep­amine communications on disappeared per­ tember 7, 1979, for its thirty-second ses­ sons in its private session. sion. At the beginning of the Sub-Commis­ sion’s public debate on this issue, Mr. Ama- deo (the expert from Argentina) argued Disappeared persons that since this debate was aimed at making general recommendations, no specific situa­ Perhaps the most noteworthy event oftions should be mentioned. However, other the session was the Sub-Commission’s deci­speakers took a different view. Mme Ques­ sion about disappeared persons. Last year tiaux, a former President of the Sub-Corn - the Sub-Commission rejected a resolutionmission, made an impressive statement de­ by Mme Questiaux (France) requesting thescribing the situation in Argentina in all its Argentine government to give informationgravity. She said she had in hand a list of about persons who had disappeared in its 4,500 persons who had disappeared in country, and earlier this year the Commis­Buenos Aires and another of 8,000 persons sion on Human Rights failed to respond tomissing in the whole of Argentina. She said the General Assembly’s request to make re­ that she would resign from the Sub-Com­ commendations on this question, othermission unless some positive action was than to appoint two of its members to en­taken. She was followed by other speakers quire into disappearances in Chile (see ICJwho referred to Chile, El Salvador, Guate­ Review No. 21, December 1978, p. 26 and mala and Uruguay in addition to Argentina. ICJ Review No. 22, June 1979, p. 25). InNGOs also contributed to the debate. The May 1979 the ECOSOC passed a resolution ICJ had issued a document containing a requesting the Sub-Commission to considergeneral description and analysis of the phe­ nomenon and its representative made sons, an and especially of political prisoners. oral intervention. Speaking immediatelyAs a result, the Sub-Commission requested after the Argentine Ambassador who hadauthority to entrust Mr. Singhvi (expert stated that the number of disappeared per­ from India) with the preparation of a re­ sons was now "virtually down to zero inport on this question. his country”, he showed that disappear­ ances were continuing, though on a smaller scale and that in any event this did not re­ solve the problem of the 8,000 or more Exploitation of Child Labour persons already missing. The outcome was that the Sub-Commis­ This subject was discussed under a new sion adopted a resolution requesting theagenda item in relation to the International Commission on Human Rights to authoriseYear of the Child. According to the ILO members designated by the President of representative, 52 million children are the Sub-Commission to constitute a groupworking in the world, 80% of them being of experts. This group “would be given allunremunerated. Members of the Sub-Com­ the information available for locating dis­mission described the situation in different appeared and missing persons in differentparts of the world. Mr. Ben Whitaker (ex­ regions of the world and would make the pert from UK) reported principally on the necessary contacts with the governmentsexploitation of child prostitution in Brazil, and the families concerned”. In view of theon the working condition of 36,000 teen­ urgency of the situation, it also decided toagers in Hong Kong and on the plight of transmit to the Secretary-General for ac­children in India which has the largest child tion, pending decision by the Commission,labour force in the world. NGOs, including the lists of missing persons communicatedthe Anti-Slavery Society and the Minority to it by members of the Sub-Commission. Rights Group, took part in the debates. It In case this phenomenon were to con­was alleged that about 3 million children tinue, the Sub-Commission suggested thatare working in Colombia, many of them some form of emergency remedy of an in­underground in coal mines, without any ternational nature should be envisagedsafety precautions. In Morocco, thousands which could be based on the notion of ha­of children are working in the carpet indus­ beas corpus. try, sometimes up to 72 hours a week. Conditions in Italy, Taiwan and Thailand were also referred to. The International Union for Child Welfare draw attention to Rights of Detainees the sale of children for adoption. The Sub-Commission decided to review Among the papers prepared by the Sec­ this question annually and appealed to all retariat on this topic was a synopsis of in­governments to ensure that “adequate legis­ formation submitted by non-governmentallation to protect working children is enact­ organisations, which drew heavily uponed a and properly enforced”. It sought au­ memorandum submitted by the ICJ. thority for a study by Mr. A. Bouhdiba During the discussions, many experts(expert from Tunisia) on the exploitation felt that the independence of the judiciaryof child labour, “taking into account all and of the legal profession was a prerequi­ the economic, social, cultural and psycho­ site for ensuring the rights of detained per­logical dimensions of the problem.” w

The Right to Development countries with free market economies, and made no mention of trade with countries “The New International Economic Or­in other regions, including Africa. der and the promotion of human rights” was also a new agenda item. Interesting de­ bates took place in which many expertsHuman Rights Violations stressed the necessity of finding a concrete approach to the problem. Authority was An important issue discussed this year requested for a study to be undertaken bywas the policy to be adopted when a change Mr. R. Ferrero (expert from Peru), who of regime occurred in a country in respect should also represent the Sub-Commissionto which a study of alleged gross violations at the proposed UN seminar on the effects of human rights had been undertaken. This of the existing unjust international had eco­ occurred in Uganda, Kampuchea, Nica­ nomic order on the economies of the devel­ragua and Equatorial Guinea. The Director oping countries, and the obstacle that thisof the Division of Human Rights asked represents for the implementation of hu­whether these enquiries should be discon­ man rights and fundamental freedoms. tinued, or carried on in order to ascertain what had happened under the previous re­ gime and to help the new governments to Racism and Racial Discrimination return to a normal situation and to avoid such violations in the future. There was a The Sub-Commission propose to under­general consensus among the experts that take three studies on this subject. One onsuch studies should be continued. “discriminatory treatment against minority In particular, the governments of Kam­ groups at the various levels in the adminis­puchea and Nicaragua should be invited to tration of criminal justice”, another oncollaborate and to provide information on “political, economic, cultural and otherwhat had occurred, and their attention was factors underlying situations leading to rac­drawn to UN facilities to assist govern­ ism”, and the third on “recourse procedurements on measures needed to strengthen available to victims of racial discrimina­ their arrangements for the promotion and tion”. protection of human rights. South Africa, Israel and the United A resolution was passed regretting viola­ States were mentioned during these de­tions in the occupied territories Palestine bates as practising racial discrimination. and calling upon Israel to desist forthwith The representative of the International As­from its intervention in southern Lebanon. sociation of Democratic Lawyers submit­ Another urged negotiations between Israel ted a report alleging racial discrimination inand the Palestine Liberation Organisation the United States in the administration to of restore the rights of the Palestinian justice and in the prison system. people. It was noted that Ambassador Mr. A. Khalifa (Egypt) submitted a re­ Beverley Carter (US) did not vote against vised list of 2,605 banks, firms and other this resolution. The US government later is­ organisations who are providing military,sued a statement that he had acted in his economic or political assistance to South capacity as an independent expert. The Africa. Some speakers regretted that the Sub-Commission reiterated a request that list only mentioned companies trading withits rules of procedure be amended to em­ South Africa which were based in westernpower it to vote by secret ballot when de­ ciding matters under the confidential Reso­Other Items lution 1503 procedure concerning commu­ nications. Among other questions discussed was the problem of persons alleged to be de­ tained in mental health institutions by rea­ son of their political opinions. Arising out Ratification o f Human of this a resolution requested the Secreta­ Rights Instruments ry-General to prepare a report analysing available information concerning this sub­ This matter was raised at the initiative ject, with a view to formulating guidelines of NGOs. Amnesty International, the Inter­regarding the medical measures that should national Commission of Jurists and the Mi­properly be employed in the treatment of nority Rights Group, supported subse­persons detained on the grounds of mental quently by five other NGOs, proposed a ill health and on appeal procedures for de­ procedure for encouraging ratification oftermining whether adequate grounds exist the principal human rights instruments.for such detention and treatment. Based on this proposal the Sub-Commis­ The Sub-Commission also decided to sion requested the Secretary-General tosend a telegram to the Iranian government write to governments which had not adopt­expressing "its deep sense of shock at re­ ed the relevant instruments, asking themports to of summary executions of numerous inform the Sub-Commission of the circum­Kurds in Iran” and requested “the imme­ stances which so far had not enabled themdiate cessation of these inhuman practices”. to ratify or adhere to them, and “to ex­ plain any particular difficulties which they may face, in respect of which the UnitedProcedure Nations could offer any assistance”. The Sub-Commission also decided to establish Following the approval by ECOSOC of each year a working group to consider the Sub-Commission’s request that its ses­ ways and means of encouraging govern­sions be extended from 3 to 4 weeks, it ments to ratify or accede to internationaldecided to request authority to meet twice human rights instruments, to examinea the year, one meeting being held if possible replies received and, if necessary, to invitein New York. It also asked that its name be representatives of the governments con­changed to the Sub-Commission on Human cerned for discussions. Rights. ARTICLE

Pre-trial Detention in Western Europe

by S. Grosz, A.B. McNulty and P.J. Duffy*

One of the most important decisions in the While unconvicted prisoners receive pri­ criminal process is whether the Defendantvileges not accorded to those serving sen­ should be remanded in custody before trial.tences there are many ways in which they Every criminal prosecution will anyway areen­ worse off than convicted prisoners. tail some adverse consequences for the ac­Work is not readily available for uncon­ cused, which range from the inconveniencevicted prisoners who wish to work and edu­ of having to attend Court or the financialcational and recreational facilities are often consequence of having to pay a lawyer, minimal. to Overcrowding and constraints submission to questioning by the Police.upon the resources of the prison service Every prosecution will affect the free­effectively mean that many unconvicted doms of the accused to some extent, but prisoners spend most of their time “bang­ the interference with these freedoms ised up” in their cells: many complain that greatest when he is in prison pending trial.they spend twenty-three hours a day Needless to say he is automatically depriv­ locked up. Psychologically, the combina­ ed of his livelihood and separated from his tion of boredom, uncertainty about the family and friends. Such absence, whichtrial, prison conditions, supervision and the may often be prolonged, may be difficultunpleasant surroundings can have a devas­ to explain to, say, an employer. Aparttating effect on a person detained on re­ from these automatic consequences the in­mand. It has been recognised, for example, dividual must also conform to the prisonby a West German court, on the basis of regime: his mail may be read, his visits psychiatric evidence on the effect on a re­ watched. He may develop “criminal ten­mand prisoner of his uncertain future, that dencies” by his association with convictedthere is a time limit to his capacity for criminals. moral resistance. A period of six years on

* S. Grosz, M.A. (Cantab), licencie special en droit europeen (Brussels), Solicitor of the Supreme Court; A.B. McNulty, M.A. (Oxon), C.B.E., Barrister-at-Law, Director of the British Institute of Human Rights, former Secretary to the European Commission of Human Rights; P.J. Duffy, M.A., LL.B. (Cantab), licencie special en droit europeen (Brussels), Barrister-at-Law, Lecturer in Law, Queen Mary College, University of London. The authors are grateful to the following people for their assistance in the provision of information for the preparation of this article; Paul A. Strasburg and Pierce Gerety, Vera Institut of Justice; Profes­ sor Stefan Trechsel (Swiss member of the European Commission of Human Rights); Dr H.C. Kruger and M. Jean Raymond, Secretariat of the European Commission of Human Rights; Mrs Lise Marer, Bundesministerium der Justiz; Mr R. Harrington, Home Office; Dr Gunner Berg; M.J. Velu, Procureur du Roi; Mr C.H.F. Polak (Netherlands member of the European Commission of Human Rights). remand was declared to be absolutely period from any final sentence of imprison­ above such limit.1 Pre-trial detention canment (or even from a fine). have serious consequences for the rights of It cannot be denied that pre-trial deten­ the defence. Preparation of the case is se­tion is a necessary evil to be invoked in ex­ verely hampered by the difficulties involvedceptional cases in the interests of the com­ for lawyers in obtaining instructions frommunity to ensure the proper conduct of the detained client and for Defendants criminalin proceedings and the effective en­ locating witnesses.2 The Defendant in cus­forcement of criminal sanctions. The three tody suffers other, less obvious disadvan­principal grounds of detention in most tages. The legislation in most countriescountries are the prevention of absconding, examined specifically requires that there bethe prevention of interference with wit­ serious evidence of guilt against the Defen­nesses or evidence and the prevention of dant for him to be detained on remand, orfurther offences by a recidivist. at least that the weight of the evidence However, the prospect of detention, against him be a consideration in decidingcombined with the length of proceedings in whether to remand in custody. Albeit un­some countries, may often militate against consciously, the mind of the Judge, exam­the very objectives which pre-trial deten­ ining Justice or Magistrate may be affectedtion is supposed to attain and replace them by the fact that the Defendant has beenwith the rough and ready process of bar­ produced in Court from custody. gaining between prosecution and defence.3 Further, when sentence is passed, theFirst, the prosecution may use the threat fact of detention will again disadvantageof opposing bail as a means of persuading a the Defendant. It is a reasonable assump­Defendant to confess, plead guilty and "get tion that a Defendant in custody is moreit over with". In this way an innocent De­ likely to receive a custodial sentence: im­fendant may be pressurized into pleading prisonment seems a less dramatic step guilty to a lesser offence rather than face a where the person is already in custody, andlong period of pre-trial custody, the uncer­ such a sentence serves to vindicate his pre­tainty of a trial on a more serious charge vious detention. There may also be a ten­and the possibility of a longer sentence at dency to hand out to Defendants in custo­the end of it. The period of custody await­ dy longer custodial sentences than theing trial for the more serious offence might “tariff" in order to “cover” the period be no longer than the actual sentence for spent on remand, especially under systemsthe lesser offence. where a civil action lies for damages for un­ Conversely, a guilty Defendant, sure of reasonable detention. a custodial sentence in any event, may use Perhaps the most serious aspect of pre­ delay to his advantage by offering to plead trial detention is that the individual is stillguilty to a lesser offence carrying a reduced at a stage where he is presumed innocent:sentence. he has not been and may never be con­In every country examined, legislative victed. Yet from his point of view deten­reforms have been introduced to reduce tion is detention and there is no physicalboth the length and the frequency of pre­ difference merely because he is not detain­trial detention but, although the provisions ed pursuant to a sentence. The distinctionof each country bear a marked similarity of is a legal one, whose practical consequencesapproach, the practice on both counts are small. In most countries this is recognis­varies considerably. What is considered a ed by the integral deduction of the remandreasonable time in one country would be excessive in another. The practice regarding Different systems obviously have diffe­ detention is intimately associated with therent consequences for the practice of re­ rest of the criminal procedure, whether mand in custody. The elaborate procedure that be "accusatorial” as in England or “in­of the inquisitorial system may go on for a quisitorial” as in the other countries exam­considerable time after arrest and before ined.4 the investigating Judge decides to send the The fundamental difference betweenDefendant to trial and draw up the indict­ the two procedures can be found in the di­ment. There is a temptation to consider vision of functions. The accusatorial systemdetention as automatic as this avoids the is regarded as a contest between the pro­ inconvienience of the Defendant not turn­ secution and the accused to prove to theing up at any part of the investigation. The Court that on the evidence the accused hasinvestigating Judge, being intimately or has not committed the offence charges. acquainted with the case, will be more The Judge acts as an umpire in the pro­easily convinced than an independent ceedings and does not participate in theMagistrate that the needs of the investiga­ investigations or the preliminary examina­tion dictate the Defendant’s continued in­ tion of witnesses, which are carried out bycarceration. the Police and by Counsel for the parties The file can become voluminous and the respectively. The prosecution decides handling by one branch of the prosecution whether to bring a charge and, if so, whatwill paralyze the proceedings by others. charge and must prove that charge. The De­Moreover, proceedings before the investi­ fendant need not submit to examinationgating Magistrate are often protracted: but has the right to remain silent. there are sometimes insufficient Judges so By comparison the classical form of in­that each hearing on any case may be pre­ quisitorial procedure is a far more elabo­ ceded and followed by a considerable delay. rate process. The system is designed to The defence has a right of access to the guarantee that a full and independantCourt in­ file and, again, while this is out of vestigation is carried out and that it is fair­the Judge’s hands the case cannot proceed. ly and openly conducted in order to dispelBy comparison, the system of Police inves­ any fear of abuse of power, collusion ortigation is informal and speedy, carried out suppression of evidence. Initial investiga­wherever a witness may be and without the tions are carried out by the Police, who need to involve the defence. The proceed­ then pass the case to a public prosecutor ings are quicker and the occasions requiring for a decision on the question of prosecu­the Defendant’s presence are fewer. As a tion. The case is then brought before anresult both frequency and length of deten­ investigating Magistrate who carries out ation may be considerably reduced. pre-trial judicial investigation: he may This study compares the provisions and, examine witnesses, issue search warrantsso far as possible, the practice of pre-trial and authorise detention. He will then havedetention in four countries in Western the dual role of Judge and Investigator,Europe: one operating the accusatorial sys­ whose jobs are to discover all evidence tem and the others operating the inquisito­ pointing to the existence any of offence rial system in one form or another. It deals and to identify the perpetrator. At the endonly with detention between first appear­ of his investigation he will either releaseance in Court and trial. The periods of de­ the Defendant or send him to trial beforetention prior to the first appearance are another Court. uniformally short, i.e. nor more than 48 hours, and provisions governing that matteris still not ready for hearing he may be re­ are outside the scope of the present study.manded for successive periods of eight days until it is ready.6 There is no statutory limit to the number of remands, although a Defendant may apply to a High Court Judge for bail if he considers his detention ENGLAND excessive or unjustified.7 If a case is to be heard in the Crown The investigation and prosecution of of­Court it will first come before the Magis­ fences in England are undertaken bytrates the for “committal" proceedings,8 at Police in the majority of cases. The Police which the prosecution presents its evidence interview witnesses and decide on theand the defence has a chance to examine charge and appropriate evidence. Police en­prosecution witnesses and may submit that quiries are for the most part not subject to there is no case to answer. If this submis­ judicial control and the defence has nosion is accepted the case is dismissed. Such right to be present when witnesses arean occurrence is fairly rare and, in practice, questioned. The Defendant himself has thecommittal proceedings are often no more right to remain silent and cannot be forcedthan a formality whereby the defence con­ to answer the questions either by the Policesents to being committed without the pro­ or subsequently by the Court. Nor does thesecution statements even being read by the Defendant have to disclose his defence inMagistrates. As a result the procedure is advance. The role of the Court is not to in­very rarely an effective sieve of cases and vestigate but to decide whether, on themay be time-consuming. It can cause con­ evidence presented by the parties, the De­siderable delay in the determination of pro­ fendant committed the specific offence ofceedings and has little useful effect. While a which he has been charged. case is awaiting committal a Defendant Offences are divided broadly into sum­may again be remanded in custody for mary offences, triable before one or more eight days at a time. The Defendant in Magistrates (usually lay persons), and in­custody after committal will remain there dictable offences, triable in the Crownuntil trial unless he is released by the trial Court before a Judge and jury. Certain of­Court or by a judge of the High Court. fences may be tried under either procedure Once committed, a case should be heard depending on the election by the prosecu­by the Crown Court not less than 14 days tion or defence. Simple summary cases and not more than 8 weeks from the date may be dealt with by Magistrates at the of committal.9 The maximum limit is not first appearance of the accused, even if hemandatory10 and many Courts are so busy pleads not guilty. However, where the De­that they have produced stencilled pro­ fendant indicates that he wishes to pleadforma letters notifying the Defendant that guilty and wants to be legally advised orhis case will not be heard within the 8 week apply for legal aid, or if it appears to the period. In 1978, 17.7 percent of Defen­ Court that he ought to seek legal advice, or dants on bail and 72.3 percent of Defen­ if the prosecution is not ready, the casedants in custody awaiting trial at the may be adjourned. If a Defendant is thenCrown Court were tried within 8 weeks of remanded in custody, he may only be heldcommittal, and 71.3 percent of Defendants for eight days,5 after which he must be on bail and 93.6 percent in custody were brought again before the Court. If the casetried within 20 weeks.11 Bail — The Bail A ct 1976 ishable with imprisonment, bail may be refused only if: The decision to remand on bail or in(a) it appears that he has previously fail­ custody is now governed by the Bail Act ed to surrender to custody when 1976. Bail may be granted by the Magis­ granted bail and, in view of that fail­ trates’ Court prior to or at the hearing or ure, the Court is satisfied that it is committal.12 After committal a Defendant probable that he will fail to surrender seeking bail may apply to the Crown Court to custody if granted bail on the to which he is being committed, or to the present occasion19 or, High Court.13 The principles of the Bail (b) he should be kept in custody for his Act apply to any of these situations. The own protection (or welfare if he is a striking feature of the Bail Act is that it child or young person)20 provides a general right to bail by creating A person charged with an offence pun­ a statutory presumption in favour of it.ishable with imprisonment may be refused The effect of the presumption is that thebail if the Court is satisfied that there are Court is obliged to consider bail on its own substantial grounds for believing that: initiative and can refuse it only for the (a)rea­ he would fail to surrender to custody sons specified in Schedule 1 of the Act.14 or, In addition, if the Court refuses bail or im­(b) he would commit an offence while poses conditions, it must give reasons,15 on bail or, record them16 and supply the Defendant(c) he would interfere with witnesses or with written notices of them if so re­ otherwise obstruct the course o f jus­ quested.17 The presumption of bail applies tice in relation to himself or someone to pre-trial proceedings in respect of all else21 or, cases other than offences of treason. (d) he should be kept in custody for his Schedule 1 of the Act contains the ex­ own protection22 or ceptions which may ground a refusal of(e) it has not been practicable to obtain bail. The Schedule distinguishes between sufficient information to make a de­ “imprisonable” and "non-imprisonable” cision on the above grounds because offences, but the question of bail where an of want of time since the institution offence is imprisonable is to be decided of the proceedings.23 “with regard to any enactment prohibiting In dealing with the first three grounds or restricting the imprisonment of youngthe Court must consider any relevant mat­ offenders or first offenders”.18 As a result, ter and in particular: the principle contained in Schedule 1, Parti. the nature and seriousness o f the of­ 11, of the Act, dealing with non-imprison­ fence and the probable method of able offences, applied only to the most dealing with the Defendant; minor offences, which are mainly subjectii. the Defendant's character and ante­ to summary procedure, for which special cedents and association and commu­ reasons for a remand in custody would nity ties; have been required in any event. In Hi.prac­ the strength of the evidence against tice, therefore, nearly all bail decisions are him.24 made under Schedule 1, Part 1, referring to A person released on bail is under a duty imprisonable offences. to surrender at the time and place appoint­ However, if a Defendant is accused (or ed25 and failure to do so constitutes an of­ convicted) of an offence which is not pun­fence of absconding.26 This offence is pun­ ishable by three months imprisonment andtween 6 and 9 months in custody and 20 a £400 fine on summary conviction orwho 12 had spent over 9 months in custody.33 months imprisonment and an unlimitedAs had been pointed out,34 the present fine on conviction by the Crown Court.27policy (or at least the policy which existed Additional conditions of bail may be im­prior to the coming into force of the Bail posed only where they appear necessary toAct) is somewhat over-cautious. In 1971, the Court to secure the Defendant’s surren­Lord Hailsham, the Lord Chancellor, sug­ der to custody, to prevent him committinggested that the absconding rate was about an offence while on bail or to prevent him3%. In the same year 51,753 persons were interfering with witnesses or obstructingreceived into custody awaiting trial. Of the course of justice.28 Examples of suchthese 2,602 or 5% were acquitted or had conditions are sureties, the giving of securi­the case against them dropped and 19,767 ty (either by way of money or surrender didof not receive a custodial sentence. While his passport) or reporting to a Police Sta­ the custody period is short, 43% of those tion, keeping out of certain areas or awayin custody should arguably not have been from certain associates. there at all. By 1977, the latest year for One further useful measure containedwhich in figures are available, the position the Bail Act is the introduction of compul­had improved. 44,988 prople were receiv­ sory Legal Aid for the purpose of bail pro­ ed into custody awaiting trial. Of these ceedings, inter alia, where a person charged1,685 (3.8%) were acquitted or not pro­ with an offence before a Magistrates’ Courtceeded against while a further 15,377 is brought before the Court in pursuance (34.2%)of received non-custodial sen­ a remand in custody on an occasion whentences.35 In the same year, 3% of persons he may again be remanded or committed inreleased on bail by Magistrates' Courts for custody, if he was not represented on theindictable offences failed to appear to previous remand.29 This is one of the fewcourt bail.36 examples of compulsory legal aid and In conclusion, however, it is worth not­ serves to emphasise the importance attach­ing that remand on bail is much more fre­ ed to pre-trial detention. quent than remand in custody. For the pe­ No statistics are yet available which riod July to December 1977 81% of Defen­ would show the effect of the Bail Act since dants remanded during proceedings at Mag­ its coming into force.30 One of the majoristrates’ Courts for indictable offences lacunae of the Act is that it does not apply(whether dealt with summarily or commit­ the presumption to Police bail. While in it­ted to the Crown Court) were remanded on self Police detention represents only bail a throughout, while only 6% were in small part of the time spent in custody,custody throughout. The remaining 13% studies in 1971 showed that Police objec­ spent part of the time on bail and part in tions to bail, and the fact that a Defendantcustody.37 appears before Magistrates in custody will be a major factor in the Magistrates’ deci­ sion.31 While the average length of timeFRANCE spent in pre-trial custody is short (29 days in 1977),32 many Defendants still spend The French system of criminal justice considerable periods in custody at this recognises three categories of offences, ac­ stage. At the end of 1976 there were over cording to the degree of seriousness attribut­ 100 people in prison who had spent be­ed to them. The category dictates the Court which deals with the matter and the proce­cused and issue search and arrest warrants. dure to be followed, and also has conse­ He is the only person competent to order quences for the decision to remand in cus­pre-trial detention and indict the accused. tody. The most minor, non-imprisonable,The accused or his lawyer has the right to offences are contraventions and are dealt be present at all examinations and has the with by the Tribunal de Police. More seri­right to see the case file. At the end of the ous offences aredelits, normally punish­investigation, the Judge will release the ac­ able by two months to five years imprison­cused if he considers that the charge is not ment, and heard by the Tribunal Correc-grounded. Otherwise he will send him be­ tionnel. The most serious offences (aboutfore the trial Court to which he will for­ 2% of the total) are crimes which are tried ward the file. The trial is accusatory and by the Cour d ’Assises:crimes are punish­ the calling of witnesses lies in the hands of able by five or more years imprisonment orthe prosecution and defence, although the by death. Court may call for other witnesses. The Detention on remand may never be partiesim­ must disclose the witnesses they in­ posed in cases of contraventions, and the tend to call. rest of this study will therefore deal only This is the usual procedure, although in with delits and crimes. The procedure for the case of delits the prosecutor has the prosecution of these types of offences isoption to proceed to trial without a pre­ inquisitorial. The initial investigation andtrial investigation. In such cases detention the apprehension of suspects are carriedon remand is not authorised. out by the Police Judiciaire under the directions and supervision of the Procureur de la Republique or Public Prosecutor. The Pre-trial Detention, Bail Prosecutor decides whether to prosecute or Controle Judiciaire and, if so, by what method. He may either have the Defendant summoned to appear The provisions governing the remand before a court at a future date, a method decision were reformed by the law of 17 known asdirect-citation, or if the Defen­ July 1970 amending the Code of Criminal dant was caught in the act he may requestProcedure (CPP).39 The aim of this law immediate trial (the procedure de flagrant was to liberalise the practice and reduce delit). Finally, he may forward the case to the incidence of pretrial detention. The an examining magistrate(juge d ’instruction) central features of that law are to: to conduct a pre-trial investigation. This(a) create a presumption in favour of last procedure is adopted in all cases of pre-trial release; crimes and in any case where detention(b) of specify the exceptions and formal re­ more than 24 hours is requested. It is in quirements; this type of case that pre-trial detention is(c) introduce for the first time a system most common.38 Thejuge destruction of controle judiciaireallowing the im­ combines the roles of Judge and Investiga­ position of wide ranging restrictions tor. It is his duty to discover all the evi­ or conditions on pre-trial release. dence pointing to the existence of an of­The general principle is contained in fence and to identify the perpetrator. Hearticle 137 of the CPP which provides that conducts the investigation for both prose­remand in custody orcontrole judiciaire cution and defence - he may compel themay not be ordered except by reason of attendance of witnesses, examine the ac­the needs of the investigation or as a “safe­ ty measure”. As regardsdelits, Article 144 ed the normal course for such serious of­ imposes additional requirements before de­ fences and the strict conditions delits for tention or control may be ordered: do not apply. Although the general princi­ i. The sentence which may be imposed ple in Article 137 applies, remand in custo­ must be at least two years' imprison­ dy may be ordered by simple warrant and ment and without the giving of reasons.42 However, ii. The obligations which may be imposed the defendant may apply to be released by way of controle judiciaireare insuf­ and the Judge then has to give a reasoned ficient to guarantee the matters men­order specifying the grounds for his conti­ tioned in Article 137 and nued detention.43 Hi. Detention on remand is: (a) the only way to preserve evidence, prevent the accused bringing pres­Length of Detention sure on witnesses or conspiring with accomplices or co-defen­ As regards delits, remand in custody may dants, or not exceed 4 months. At the end of this (b) necessary to keep public order period it may be extended for a further 4 from disruption in relation to themonths by order of the Judge, who must commission of the offence; togive reasons. This decision may be appeal­ protect the accused; to put an ended. However, where an accused charged to the commission of offences orwith a delit has not previously spent at prevent their renewal or to guar­least 3 months in prison and will not be antee the defendant's return tosentenced to more than 5 years, remand in Court. custody may be extended only once and In addition the Judge may remand a de­for 2 months only, making a total of 6 fendant in custody, regardless of the lengthmonths in all.44 There is no maximum of sentence, if he has wilfully disregardedlength of detention for defendants charged the conditions ofcontrole judiciaire.40 with crimes other than the period of the In applying the above criteria the Judgemaximum sentence which may be imposed. will be guided by the defendant’s previous During the pre-trial investigation release record, by the seriousness of the offencemay be ordered by the Judge, either on his and the strength of his community ties. ownHe initiative, after a request by the prose­ will also take into account the seriousnesscution or, most often, after a request by of the evidence pointing to the defendant'sthe defendant.45 The defendant may apply guilt. As in England there is no bail infor­at any time and the Judge informs the pro- mation scheme and the Judge’s decisioncureur and thepartie civile (aggrieved could be made on insufficient information.party). He must decide not earlier than 48 The decision must be in the form of anhours after informing the aggrieved party order and specific reasons must be givenand not later than 5 days after notifying based on the facts of the case and must re­the prosecution. If he fails to do so the de­ fer to one or more of the grounds contain­fendant can apply to theChambre d’accu- ed in Article 144 outlined above.41 A deci­sation which must decide within 15 days sion may be appealed by the prosecutionfailing which the defendant is released.46 or the defence and the defendant remainsThe accused may also apply tothe chambre in custody pending the appeal. d’accusation if he has not been examined As regards crimes, detention is consider­by the Judge for more than 4 months.47 At the end of the preliminary investigation,gation unless extended. if the charge against the accused is not The conditions on release are broadly made out, he is released. Where the case is of two kinds. First, there are “preventive sent to trial detention ends automaticallyand restrictive” measures, similar to those in the case of the defendant charged within a England, including reporting conditions, delit, and it must be extended by a specifi­surrender of passport, and restrictions on cally reasoned order. This can no longer bemobility or associations, which are designed grounded on the needs of the investigationto ensure that the defendant presents him­ and must be based on “safety measures”.self before the Court at the relevant time, The order is for detention until trial but isdoes not abscond or interfere with wit­ effective only for 2 months.48 nesses or commit further offences (e.g. re­ In the case ofcrimes detention conti­strictions on professional activities, on driv­ nues automatically.49 ing or on writing cheques). Secondly, there are measures requiring the Defendant to submit himself to treatment, in particular Contrdle Judiciaire and Bail for drug or alcohol addiction, or requiring supervision of his professional or scholastic Prior to the legislation of 1970 Judges activities. Wilful disregard of the conditions were faced with straight alternatives of re­ of contrdle judiciaire is a ground for impos­ mand in custody or release, with or with­ing pre-trial detention regardless of the out bail. In the face of this alternativelength of sentence which can be imposed.52 Judges were sending many defendants to The granting of bail by way of the de­ prison during the preliminary enquiries.posit of money or security may be imposed The law of 17 July 1970 gave Judges wide as a condition ofcontrdle judiciaire.53 It power to impose conditions on release inmay be payable by instalments. Unlike the order to reduce the incidence of detention.English concept, bail has two separate ele­ Money bail is subsumed as one of the con­ments: ditions that may be imposed. The newi. to guarantee the accused's appearance legislation makes clear that, at any rate in at all stages of the procedure, the exe­ the case of delits, contrdle judiciaire is to cution of the judgment and respect for be preferred to remand in custody. conditions imposed by way contrdle of Like pre-trial detention,contrdle judi­ judiciaire ciaire may be imposed only where it is re­ii. to guarantee payment of the aggrieved quired by the needs of the investigation or party’s costs and damages, the costs o f as a safety measure.50 It may be imposed the prosecution and any fine.54 where the accused risks a sentence on im­ Despite the emphasis placed oncontrdle prisonment for adelit (emprisonnement judiciaire it continues to play only a small correctionnel) ora more serious sentence.51 role in remand decisions. During 1978, out It is ordered by the Judge who does not of 79,624 cases, examining Magistrates' have to give reasons and his order is not ap­ordered detention in 61,245 (76.9%) and pealable. It may be imposed or modified at release in only 18,379 cases.Contrdle judi­ any time and be removed by the Judge onciaire was not used in 12,426 (67.61%) of his own motion or on application by thethese cases. Of the remainder, bail was used prosecutor or defence. There is no limit onin only 796 cases. its duration but, like pre-trial detention, it Of those detained on remand, 55.7% ceases at the end of the preliminary investi­spent one month or more in detention. About 17% had spent more than 4 monthsin the Federal Republic of Germany was in detention. However out of all the casesthe subject of many applications to the of detention on remand, only 20,668European Commission of Human Rights (about 34.5%) ended in convictions involv­relating to the right to trial within a reason­ ing custodial sentences. Although it is im­able time and the length of detention on possible to calculate, some defendants will remand pending such trials. In 1964 the undoubtedly have received custodial sen­Code of Criminal Procedure and Judicature tences shorter than the period alreadyAct had been amended to limit generally spent on remand.55 On 1 January 1979the imposition of detention on remand there were 14,167 remand prisoners, repre­ and, in particular, to limit it to 6 months senting 42.52% of the prison population.56except in special circumstances. The Code The figures appear to indicate that de­ was again amended by the law of 1975 the tention on remand is used too much andaim of which was to accelerate the criminal contrdle judiciaire not nearly enough, andprocedure in order both to eliminate these that in many cases (65.5%) pre-trial deten­delays and to ensure the effective combat­ tion gives a person a taste of prison whereting of crime by swifter retribution.57 The the final sentence does not. It also seemsnew law did not lay down any absolute that the periods of detention are in generalobligation to shorten trials because no ef­ longer than those in England, due mainlyfective sanction was put forward, nullity to the length of the pre-trial investigations,having been ruled out. Instead, it pinpoint­ and virtually half of those detained on re­ed the judicial preliminary investigation as mand spend between one and 6 monthsthe main cause of delay and abolished this awaiting trial. institution, transferring the investigatory functions from the Judge to the Public Pro­ secutor. He now has authority to compel GERMANY the attendance of witnesses, to inspect papers seized by search and to take various The system of criminal justice in theother measures associated with the investi­ Federal Republic of Germany is also of the gation. The law made other amendments inquisitorial type. Offences are classified aimed at eliminating administrative delays. into Verbrechen, punishable by imprison­Theoretically at least, supervision of the in­ ment of one year or more, andVergehen vestigations lies in the hands of the compe­ which ordinarily carry a sentence of lesstent Judge and it is he who authorises than one year. Prosecution is compulsorysearch or pre-trial detention. for Verbrechen, whereas in the case ofVer­ gehen the Code of Criminal Procedure (St. PO) imposes a series of criteria governing Detention on Remand the exercise of prosecutorial discretion. Prior to 1975 the Code imposed a re­ The Basic Law sets out the right to lib­ quirement thatVerbrechen be investigated erty of the person and gives precise legal by a Magistrate once the Police investiga­guarantees to this right.58 The “constitu­ tions had been completed. This require­tional principle” of proportionality also ap­ ment resulted in considerable delay result­plies to detention on remand both as re­ ing from duplication of work by the pro­gards the circumstances in which such de­ secuting authorities and the examiningtention may be ordered and the length of Magistrate, and the length of proceedingstime for which it may be maintained.59 The provisions of the European Conven­liberty.66 By far the most important tion on Human Rights are likewise applica­ground in practice (about 93% in 1977) is ble, but the Convention has only the that rank of absconding or danger of abscond­ of Statute law in the Federal Republic. ing.67 The Judge must determine such a Although it is nowhere expressly stateddanger according to an appreciation of the that there is a presumption in favour ofcircumstances of each case, and the factors liberty, the Federal Constitutional Courtto be considered are, inter alia, the family has held that the principle of proportionali­situation of the accused, his professional ty implies that interference with personalstatus, whether he has a fixed abode and freedom may be allowed only if and in sothe seriousness of the likely sentence far as the legitimate requirements of socie­ (which, in turn, will reflect the seriousness ty in the thorough elucidation of the factsof the offence).68 and the swift punishment of crime cannotAs regards minor offences, punishable be secured other than by the temporaryby 6 months imprisonment or less or by a imprisonment of the suspect.60 fine, detention on the grounds of abscond­ Detailed provisions relating to pre-trial ing may be ordered only if the Defendant detention are to be found in the Germanhas already previously absconded or at­ Criminal Code.61 Article 112 (1) provides tempted to do so, has no fixed abode or that detention may be ordered in respeptcannot prove his identity. Detention may of an accused if a serious suspicion existsnot be ordered on the ground of risk of concerning his guilt and if one of the speci­suppression of evidence for such offences.69 fied grounds for detention exists. It may Detention based on the second ground, not be ordered where it appears dispropor­ risk of endangering the preservation of tionate having regard to the seriousness evidence, of may be imposed where the accus­ the case and the sentence or other measureed’s conduct justifies a “serious presump­ which may be passed. tion” that he will: In order to establish the existence of a(a) interfere with material evidence by de­ serious suspicion, the Judge must mention stroying or falsifying it or, specific facts arising from the investigation(b) bring illicit pressure to bear on the co­ which create a strong probability that the accused, witnesses or experts or, accused wrongfully committed the act and(c) take such action indirectly through a that he will be convicted. This is sometimes third party. difficult to establish in the short time avail­ Such action must present a real risk of able to the Judge and the main protectionmaking discovery of the truth more diffi­ of the individual is contained in the require­cult. Detention on this ground is absolute­ ment that the Judge specify the existencely excluded in the case of minor offences. of one of the grounds justifying deten­The “serious crimes” ground of deten­ tion.62 tion is not so much an independent ground Until 1964, the only reasons justifyingas an authorisation to relax the strict con­ pre-trial detention were, first, abscondingditions applicable to the previous two. It or danger of absconding63 and, second, theapplies to cases where there is a strong pre­ need to preserve evidence.64 The laws of sumption that the accused has committed 1964 and 1972 introduced further grounds,a crime endangering life.70 In such cases relating to the seriousness of the offencepre-trial detention may be ordered where charged65 and the risk that the accused neither of the two previous grounds (or the would commit further offences if left at grounds relating to the commission of fur­ ther offences) is available. Although it ap­ be at least one year and, generally, the pears on the face of it that this allows pre­ accused must have received a prison trial detentionper se in such cases, the sentence within the 5 preceding Federal Constitutional Court has restricted years. 74 the scope of this provision by its interpre­ The third general condition imposed by tation of it. According to the Court, nei­Article 112 (1) and applicable to all the ther the seriousness of the offence, nor theabove grounds, is that the imposition of de­ extent of the accused’s culpability, nortention must not be disproportionate to consideration of the likely public reactionthe seriousness of the offence and the like­ to leaving an alleged murderer at large is ly sentence. In other words, the Court sufficient to justify detention. Facts mustmust weigh the incursion on the rights of exist which justify a fear that if the accusedthe accused with the public interest. In is not arrested the investigation and rapidmost cases, the accused will come before punishment of the offence will be jeopar­the Court following a Police arrest made dised. It suffices that there are certain cir­ without a warrant, although where the ac­ cumstances which tend to show that thecused has absconded a “bench warrant” danger of absconding, or the risk of inter­will be issued for his arrest. Since 1964, the fering with evidence, or the risk of commit­Judge has a strict obligation to state his ting further offences, cannot be excluded,reasons when making the order and must even in the absence of the precise factsspecify the facts which substantiate those which would justify detention on oneserious of suspicions and the grounds upon these grounds.71 72 which he bases his decision.75 The accused The final ground, introduced in 1964must also be informed of his right to ap­ and extended in 1972, is the risk that fur­peal and his right to request a review of de­ ther offences may be committed if the ac­ tention.76 These provisions are particularly cused is allowed to remain at large.73 Rely­ important as the shortness of time available ing on this ground, detention may be to im­ the Judge often means that his decision posed: is based on very scanty information. i. in respect of offences against public The possibility of bail or liberty on con­ morals where there is a serious suspi­ditions arises only when an arrest warrant cion against the accused and certain has been issued. It has no separate exis­ facts lead to the presumption that be­tence but it is legally a suspension of deten­ fore conviction he will commit serious tion subject to conditions, so that deten­ offences of the same nature or conti­tion may be re-imposed simply by revoking nue the offence, and where arrest isits suspension. However, Article 116 of the necessary to avoid an imminent danger;code specifies the measures which may be ii. under the same conditions, where taken in respect of each ground. Detention there is a serious suspicion of commis­based on the risk of abscondingmust be sion of serious offences of assault andsuspended when the prevention of ab­ battery, robbery, habitual theft, armed sconding can be achieved by less severe robbery, extortion, dealing in stolen measures such as reporting conditions, obli­ goods, fraud, arson, armed hold-ups ofgations as to residence or supervisions, or vehicles and certain offences concern­bail. Other measures include withdrawal of ing drug addiction. The offence must the defendant’s passport or driving licence also be one which seriously disturbs and the Judge may impose a combination public order. The likely sentence mustof these measures. In the case of detention based on the need to preserve evidence oralso recognize that in principle pre-trial de­ the risk of the commission of further of­tention should not exceed 6 months. There­ fences, the decision to suspend and thefore, after this period has passed detention choice of conditions depends on the discre­must be reviewed by the Court of Appeal tion of the Judge. Detention based on the(Oberlandesgericht) and may be extended, “serious crimes” grounds may or must beexceptionally according to the Code, if the suspended depending on the main groundinvestigation presents particular seriousness which the Court has held cannot be ex­and difficulties or if some other substantial cluded. reasons still preclude final judgment. Ap­ plying the principle of proportionality, the Federal Constitutional Court has held that Length of Detention the authorities must further demonstrate that they have done everything within their The German Code does not lay downpower to conclude the investigation and to any absolute time limits for pre-trial deten­bring about a decision concerning the alleg­ tion except that, where a person is detain­ed offences.82 A similar review must take ed because of a danger that he may commit place every three months thereafter. further offences if at liberty, there is a max­ Despite this reform and the reform of imum limit of one year until judgment thein criminal process, long trials and conse­ order to ensure that recidivists are tried quent lengthy detention still frequently oc­ quickly.77 cur. The criminal process and the shortage The main check on excessive detentionof judicial and prosecutorial personnel con­ is the system of review. The most impor­ spire to lengthen periods of remand and tant source of control is the right of the ac­therefore of detention. cused to seize the Court of the question. Thus, during 1977, 40,004 persons were First the accused has the right to appeal remanded in custody pending trial. Of against the issue of an arrest warrant,78 butthese, 24,974 (62.43%) spent more than this remedy is of much less practical impor­ one month in detention and 13,553 tance than the right of the accused to re­(33.88%) spent more than 3 months in de­ quest a review of detention at any timetention. Despite the exceptional nature of during the proceedings.79 In general, andetention exceeding 6 months, 5,784 per­ oral hearing is held to decide whether the sons (14.5%) spent over 6 months awaiting conditions justifying detention are stilltrial. 397 persons spent over 1 year in pri­ satisfied or whether the warrant should beson pre-trial. lifted, or suspended by the use of other Of the 39,865 remand prisoners whose measures. cases were decided in 1977, just over half Review by the Court of its own motion(21,053) received custodial sentences. is supposed to be a constant process, en­ The figures suggest that judges take seri­ couraged by the possibility of measures of ously the requirement that there be a seri­ substitution. However the German Codeous suspicion of guilt before a person is re­ recognizes certain time limits, beyondmanded in custody. Only 2.6% of remand which detention must be reviewed. After 3prisoners were acquitted or had the charges months, if the accused has no Counsel andagainst them dropped.82 has neither requested review nor appealed For the guilty, the remedy is integral de­ against the warrant, the decision to detainduction of the period of pre-trial detention must be reviewed.80 Articles 121 and 122 from the final sentence. (By a calculation of a “daily rate” this deduction can be ap­1973, although further reforms are propos­ plied to fines as well). For those who are ed. As in many other countries reforms acquitted or whose cases are not proceeded have been necessitated by the “formaliza­ with by the Court or prosecution, a systemtion” in practice of conditions imposed by of compensation exists. law: the automatic use of arrest and deten­ tion and the use of stock phrases in place of factual justification. BELGIUM Belgian law provides a presumption, which is clear in the law of 1874, that liber­ In Belgium the division of functionsty in is the rule and detention is to be used the criminal process as between the police, only in exceptional cases. Apart from the the prosecution and the judiciary is broad­case of flagrants delits, no one may be ar­ ly similar to that operating in France. Arested without the making of a reasoned pre-trial judicial investigation is conductedorder by a Judge which must be notified to by thejuge d'instruction under the super­the accused at the time of arrest or within vision of thechambre du conseil, to estab­ 24 hours.84 lish whether an offence has been commit­ Certain conditions must exist before a ted and whether there is sufficient evidencedecision to detain can be made.85 First, (charges suffisantes) to indicate that the ac­ there must be indications that the accused cused is the likely culprit. As in France, theis guilty of the offence charged, although criminal code recognizescrimes, delits and the weight of such indications is not as contraventions in descending order of seri­ great as that of the evidence needed to jus­ ousness. Although the pre-trial procedure istify sending him for trial at the end of the the same for each, the trial court will be preliminary enquiry.86 different(Tribunal de Police; Tribunal Cor- Secondly, the offence must be punish­ rectionnel andCour d ’Assises); likewise the able by at least 3 months imprisonment on penalties attaching to the offences willconviction by the Tribunal Correctionnel. vary. The classification of offences also hasIf the offence is punishable by 15-20 consequences regarding pre-trial detention.years forced labour or a more serious sen­ The rules governing pre-trial detentiontence, arrest is automatic and thejuge d ’ins­ in Belgium are among the oldest in force intruction may only allow the accused to re­ Western Europe.83 The fundamental rightmain at liberty if the prosecutor agrees. In of the individual to personal liberty is guar­all other cases, the decision is within the anteed by Article 7 (1) of the ConstitutionJudge’s discretion. of 1831, and the European Convention onThirdly, if the accused resides in Belgium Human Rights is also part of Belgian law. he may be detained only if there are “grave The basic law relating to pre-trial detentionand exceptional circumstances affecting was passed on 20 April 1874 and has sur­public security”. Such circumstances must vived with amendments until the presentbe specified in the reasoning of the order day. By and large, these amendments havebut, as in other countries, there has been a been inspired by a desire to provide a better tendency in Belgium to recite the phrase guarantee of individual liberty by attempt­without substantiating it. Accordingly, in ing to restrict the frequency and lengththe of manner of the German legislation, the pre-trial detention and to provide compen­law of 13 March 1973 obliged the Judge to sation for wrongful detention. This processrefer to "the elements peculiar to the case of reform culminated in the law of 13 Marchor the personality of the accused” and this obligation is strictly enforced by theCour d'instruction may propose ending deten­ de Cassation,87 In the case of a defendanttion at any time during the preliminary en­ resident outside Belgium, there is no needquiry. If the Prosecutor objects then the to show the existence of such circum­decision is taken by the Chambre du Con- stances.88 Broadly, these circumstances areseil after hearing the prosecution and de­ the same as in other countries, i.e. the riskfence and reading the Judge’s report. The of absconding, the risk of interfering withdecision must be taken within 5 days. If the course of justice and the possibility ofthe Chambre du Conseil confirms the de­ committing further offences. tention, it extends it by one month from Belgian law does not impose any abso­the date of its decision.91 lute limit on the length of time which a At the end of the investigation, if the person may spend in detention although,Chambre as du Conseil makes a non-lieu (de­ Article 5 (3) of the European Conventioncision not to proceed), commits the Defen­ of Human Rights is directly applicable indant to the Police Court, or commits him Belgium, a person may not be detained forto the Tribunal Correctionnel in respect of more than a “reasonable time”. As in otheran offence punishable with less than 3 countries, the guarantee that detentionmonths imprisonment or a fine, the Defen­ does not exceed what is reasonable and isdant must be released. If he is committed not imposed or maintained unnecessarilyto is the Tribunal Correctionnel the Chambre to be found in the system of review. has a discretion to detain the accused. If he The initial warrant for arrest is generallyis detained, he remains in custody until issued at the Prosecutor's request. This trial, although he has the right to apply to warrant lasts for 5 days, and the accused the trial court for release pending trial. must be released unless theChambre du Although bail may be imposed as a condi­ Conseil confirms the Judge’s decision. It tion of release,92 there is a reluctance to must review the case and establish whetheruse this as it is considered to be a form of the necessary conditions are fulfilled and,economic discrimination by which only the if so, it extends detention by one monthrich may buy freedom. from the date of the examination of the As a further guarantee of individual defendant by the Judge. After one month,rights, the law of 13 March 1973 introduc­ and every month thereafter, Chambre the ed a right of compensation in two circum­ du Conseil must decide, after hearing the stances.93 First, in pursuance of the obliga­ parties, whether detention should be fur­tions under Article 5 (5) of the European ther extended. The law of 13 March 1973 Convention of Human Rights, an individual restricted such extension by providing thatmay claim compensation in respect of any the reasons justifying it must be as seriousdeprivation of liberty contrary to the pro­ as those which led the investigating Magis­visions of Article 5 of the Convention ei­ trate to issue the warrant.89 Secondly,ther because the arrest was not lawful un­ since 1973 theChambre du Conseil must der Belgium law or because, for example, specify in its reasoning the elements pecu­the length of time spent in detention was liar to the case or the personality of the ac­not reasonable. The law provides for an or­ cused.90 Decisions of theChambre du Con­ dinary civil action for damages against the seil may be appealed by the prosecution or state. Secondly, compensation may be the defence. claimed for pre-trial detention which, Apart from the non-renewal of the war­although lawful, subsequently proves to be rant of theChambre du Conseil, the juge unnecessary. It applies to cases where a person is cleared and not, for example, less than 3 months in custody, and 5,423 where he is given a sentence shorter than(about 95%) spent less than 6 months in the time spent on remand in custody, orcustody. a Only 196 (3.4%) of those detain­ conditional discharge. It applies to: ed were acquitted and 46 (0.8%) received i. acquittal at trial; non-custodial sentences.96 ii. non-lieusupplemented by proof of in- nocence,94 iii. detention after the time limit for pro­ secution has expired; THE EUROPEAN CONVENTION iv. non-lieudeciding that no offence has ON HUMAN RIGHTS been committed. Compensation will be awarded only ifNature of the Convention91 detention is in excess of 8 days and where it was not occasioned by the wilful or neg­ As is well known, the novelty and im­ ligent fault of the accused during the inves­portance of the European Convention of tigation. Application, which is subsidiaryHuman Rights lies in its procedures, of to any civil action for damages, is made to which the most significant is the right of the Minister of Justice. The level of com­individual petition under Article 25. By pensation is fixed having regard to “equity,this provision, “any person” may petition taking account of all the circumstances ofthe European Commission of Human Rights public and private interest.”95 The Minis­when he claims “to be the victim of a viola­ ter’s decision may be appealed if compen­ tion by one of the High Contracting Parties sation is refused, the amount is consideredof the rights set forth in the Convention” insufficient or he does not decide withinprovided, of course, that the State in ques­ 6 months of the application. tion has accepted the right of individual Both the frequency and length of pre­petition. If they satisfy the requirements trial detention vary dramatically accordingfor admissibility,98 such petitions are to whether a defendant is committed to examined by the Commission “with a view the Cour d’Assises, for a crime, or to the to ascertaining the facts” and “to securing Tribunal Correctionnel, for a delit. a friendly settlement of the matter on the Of the 61 defendants dealt with by thebasis of respect for Human Rights as defin­ Cour d’Assises in 1974, 57 appeared in cus­ ed in (the) Convention”.99 If attempts at a tody. Of these, 51 had spent over one yearfriendly settlement fail, the Commission in detention awaiting trial. Of the 6 whodraws up a Report on the facts and states were acquitted, all had spent over 9 monthsits opinion as to whether the facts found and 4 had spent over one year in pre-trialdisclose a breach of the Convention.100 detention. Ultimately the case is decided either by the The Tribunal Correctionnel disposed of Committee of Ministers101 or by the Court 5,693 defendants in 1974 who had spentof Human Rights.102 The Convention con­ all or part of the pre-trial period in deten­ tains provisions relating to detention on re­ tion. (In the same year, just over 17,000mand and there have been several relevant defendants were committed to theTribu­ cases involving the application of these pro­ nal Correctionnel, so that the custody rate visions; indeed 5 important cases have been appears to be about one in three). Of these,dealt with by the Court of Human Rights 2,610 (about 45%) spent less than oneitself.103 These provisions and the case law month in custody, 4,897 (about 86%) spentwill now be briefly examined. Article 5: “The Right to Liberty ” has held that, in assessing whether a reason­ able suspicion existed, it must consider the This Article, so far as relevant for deten­circumstances of the case as they appeared tion on remand, provides as follows: at the time of arrest and detention. 1. Everyone has the right to liberty and Assuming, therefore, that the require­ security of the person. No one shall ments be of Article 5 (1) (c) are met and that deprived of his liberty save in the fol­the detainee is “brought promptly before a lowing cases and in accordance with ajudge or other officer authorised by law to procedure prescribed by law: exercise judicial power”, there still remains (c) the lawful arrest or detention a of the central question whether the subse­ person effected for the purpose quentof detention on remand has exceeded a bringing him before the competent “reasonable time”. Article 5 (3), it will be legal authority on reasonable suspi­recalled, provides that those detained on cion o f having committed an of­remand “shall be entitled to trial within a fence or when it is reasonably con­reasonable time or to release pending trial”. sidered necessary to prevent his The meaning of this requirement was first committing an offence or fleeing clarified by the Court of Human Rights in after having done so;... the Wemhoff case.104 Three important 3. Everyone arrested or detained in accor­points emerge from this judgment. First, dance with the provisions of paragraph the period of detention covered by the re­ 1 (c) o f this Article shall be brought quirement of a “reasonable time” extends promptly before a judge or other officer from the moment of initial detention until authorised by law to exercise judicial the day of the judgment that terminated power and shall be entitled to trial with­ the trial; it does not, however, continue in a reasonable time or be released pend­thereafter until the conviction becomes ing trial. Release may be conditioned byfinal by the failure of any further appeal. guarantees to appear for trial. Secondly, the Court explained generally 5. Everyone who has been the victim of ar­“the precise scope of the provision in ques­ rest or detention in contravention oftion;" the it stated: provisions of thisArticle shall have an “Article 5, which begins with an affir­ enforeable right to compensation. mation of the right of everyone to liberty Given that this paper deals with theand security of person, goes on to specify length of detention of remand, paragraph the3 situations and conditions in which is, for present purposes, the most impor­ derogations from this principle may be tant part of Article 5. However, it should made, in particular with a view to the be noted that paragraph 1 (c) (which deals maintenance of public order, which re­ with the original arrest and detention)quires that offences shall be punished. It is creates two requirements without whichthus mainly in the light of the fact of the any period of subsequentdetention on re­detention of the person being prosecuted mand will be contrary to the Convention.that national courts, possibly followed by First, such detention must be “lawful”.the European Court, must determine Secondly, Article 5 (1) (c) requires that de­ whether the time that has elapsed, for what­ tention should be based on a “reasonableever reason, before judgment is passed on suspicion of (the accused) having commit­the accused has at some stage exceeded a ted an offence". Injurisprudence a cons- reasonable limit, that is to say imposed a tante (established case-law) the Commission greater sacrifice than could, in the circum­ stances of the case, reasonably be expectedconsider it necessary to detain a person sus­ of a person presumed to be innocent. Inpected of an offence but not convicted. other words it is the provisional detentionLikewise, such a person must, when exer­ of accused persons which must not, accord­cising his remedies have invoked the reasons ing to Article 5 (3), be prolonged beyond a which tend to refute the conclusions drawn reasonable time.”105 by the authorities from the facts establish­ Finally, the Court considered the meth­ed by them, as well as other circumstances ods by which the Convention organs shouldwhich told in favour of his release. assess the reasonableness of an accused per­ It is in the light of these pointers that son’s continued detention. Its judgmentthe on Court must judge whether the reasons this issue is so important as to require quo­ given by the national authorities to justify tation in full: continued detention are relevant and suffi­ “The reasonableness of an accused per­cient to show that detention was not un­ son’s continued detention must be assessedreasonably prolonged and contrary to in each case according to its special fea­ Article 5 (3) of the Convention.”106 tures. The factors which may be taken into InWemhoff, the accused, a German bro­ consideration are extremely diverse. Henceker, had been arrested on 9 November 1961 the possibility of wide differences in opi­ on grave suspicion of having incited breach nion in the assessment of the reasonable­of trust. Both the warrant for his arrest and ness of a given detention. With a view the to District Court justified Wemhoff’s de­ reducing the risk and the extent of suchtention on remand because of the fear of differences and as a measure of intellectualhis absconding or interfering with evi­ discipline, as the President of the Commis­ dence. Wemhoff’s appeals to higher Courts sion put it in his address to the Court, theagainst his detention were rejected and he Commission has devised an approach whichremained in detention on remand until he consists in defining a set of seven criteriawas convicted on 7 April 1965 when he whose application is said to be suitable for was sentenced to 6 years and 6 months arriving at an assessment, whether favour­penal servitude and a fine of 500 DM, the able or otherwise, of the length of the de­ period of detention on remand being tention imposed. The examination of thecounted as part of the sentence. It is note­ various aspects of the case in the light ofworthy that the indictment which was 855 these criteria is supposed to produce an pages long had not been notified to Wem­ evaluation of its features as a whole; thehoff until 2 May 1964, nearly 3 years after relative importance of each criterion mayhis arrest. In assessing whether Wemhoff’s vary according to the circumstances of thedetention on remand had exceeded a rea­ case. The Court does not feel able to adopt sonable period, the Court of Human Rights this method. Before being referred to the examined two issues: first, whether the organs set up under the Convention togrounds en­ justifying his detention had been sure the observance of the engagements un­sufficient, and second, whether, even if dertaken therein by the High Contractingthis had been so, the period of detention Parties, cases of alleged violation of Article had been reasonable. Although, to a large 5 (3) must have been the subject of domes­extent, these two points can and should be tic remedies and therefore of reasoned de­ distinguished (and, for present purposes, cisions by national judicial authorities. Itthe is second is the more important), none­ for them to mention the circumstancestheless the grounds for detention are very which led them, in the general interest, relevant to when determining whether deten­ tion has been unreasonably prolonged con­by the exceptional complexity of the case trary to Article 5 (3): if the grounds for de­ and by further unavoidable reasons for de­ tention on remand are inadequate, then,lay. It should not be overlooked that, while ipso facto, the detention has exceeded a an accused person in detention is entitled reasonable time. As regards Wemhoff’s case, to have his case given priority and conduct­ the Court found that his detention haded with particular expedition, this must been "based on the fear that if he were leftnot stand in the way of the efforts of the at liberty he would abscond and destroyjudges to clarify fully the facts in issue, to the evidence against him.”107 It examinedgive both the defence and the prosecution both of these reasons and found them toall facilities for putting forward their evi­ have been justified on the facts of the case.dence and stating their cases and so pro­ In the course of its judgment, the Courtnounce judgment only after careful reflec­ emphasised that “the concluding words oftion on whether the offences were in fact Article 5 (3) of the Convention show thatcommitted and on the sentence.’’109 when the only remaining reasons for con­There was only one dissenter from this tinued detention is the fear that the accus­decision on Article 5 (3) and significantly ed will abscond and thereby avoid appear­the dissenter was the Cypriot Judge Zekia, ing for trial, his release pending trial mustthe only member of the Court from a com­ be ordered if it is possible to obtain from mon law country. After commenting on him guarantees that will ensure such ap­the difficulty of assessing whether deten­ pearance."108 In Wemhoff’s case, however,tion on remand had exceeded a reasonable there was no suggestion that he would havetime and having alluded to the strong dif­ been prepared to provide sufficient finan­ferences between the common and civil law cial guarantees. Nonetheless, before con­approaches to this question, Judge Zekia’s cluding that no violation of Article 5 (3)opinion continued in such a powerful and had occurred the Court checked generallyrelevant manner that it merits extensive whether the detention on remand had beenquotation: unduly prolonged. This second aspect of the Court’s Wem- “My point is not to draw a comparison be­ hoff jugdment is of great significance, fortween the common law and continental systems governing criminal procedure. These systems be­ might one not think that detention oning re­ different in nature, one accusatorial and the mand for over 3 years would surely haveother inquisitorial, may as a result cause a sus­ been found to have exceeded a “reasonablepected person to be kept longer or shorter in ac­ time”? However, as the main part of this cordance with the prevailing system in the coun­ try he lives in. My intention is neither to touch paper shows, such protracted periods of de­ on the merits or demerits of either system. My tention on remand are, sadly, all too com­digression from the track is to emphasise the fact mon in certain European countries. that No if in England — a Member of the Council of doubt strongly influenced by this know­Europe — the concept of “reasonable time” re­ ledge, the Court of Human Rights held thatgarding the period of detention of an unconvicted person awaiting his trial does not allow us to Wemhoff’s detention had not exceeded astretch the time beyond six months even in an reasonable time. The judgment stated: exceptionally difficult and complicated case, “... the Court shares the opinion of thecould we say that in the continent in a similar Commission that no criticism can be madecase, the period of detention might be six times of the conduct of the case by the judiciallonger and yet it could be considered as resaon- able and therefore compatible with the Conven­ authorities. The exceptional length of thetion? investigation and of the trial are justified The Convention has aimed at setting a com­ mon standard as to the right to liberty and safetyprive a man of his liberty for a period of three of persons for the people living in the territoriesyears and over and to assert on the other hand of the member States of the Council of Europe. that by virtue of Article 6 (2) he is entitled to be The difference of standards therefore in suchpresumed innocent. countries cannot be substantially a great one. B. I quote hereunder from Resolution (65) 11 Coming from a country where the system ofof the Committee of Ministers, referring to Arti­ common law obtains, I might unwittingly havecle 5 (1) and (3) of the Convention. Although the been influenced by this system. Committee is not discharging judicial functions, The point I am driving at is this: The Highnevertheless they are representatives of the High Contracting Parties who have signed the Conven­Contracting Parties and as the ascertainment of tion, which is a multilateral and legislative instru­the intention of the signatories of the Convention ment or treaty, intended to secure to everyoneis of great help in the interpretation of the Arti­ within their jurisdiction rights and freedoms enu­cles contained therein, it is permissible, in my merated in the Convention, one of which is view,the to quote the relevant part of the Resolution right to liberty as specified by Article 5. Further­ in question. more, the same Parties resolved — as it appears in Resolution (65) 11 reads: the preamble of the Convention — to take the(a) Remand in custody should never be compul­ first steps to the collective enforcement of cer­ sory. The judicial authority should make its tain rights stated in the Universal Declaration be­ decision in the light of the facts and circum­ cause they are “likeminded and have a common stances o f the case; heritage of political traditions, ideals, freedoms (b) Remand in custody should be regarded as an and the rule of law”. exceptional measure; From the above it may fairly be inferred that (c) Remand in custody should be ordered only the Governments signatories of the Conventionwhen it is strictly necessary. In no event intended amongst other things to set a common should it be applied for punitive ends. standard of right to liberty, the scope of which I want to lay stress on the words “strictly nec­ could not differ so vastly from one country toessary” contained in paragraph (c). another. C. The security of a State, the enforcement I have said in the outset of my judgment thatof the law of the country and public order and it was very difficult to obtain a consensus of judi­interest do require a certain amount of sacrifice cial opinion at the level of international courts ofof the right to liberty of a citizen. On the other justice on the point at issue. hand, in a democratic society the right to liberty I respectfully suggest that the following mightis one of the valuable attributes cherished by the serve as guiding principles in understanding peopleand living therein. One has to strike a fair and assessing in a general way the notion of “reason­just balance between the interest of the State and able time” under Article 5 (3). the right to liberty of the subject. A. The Convention, by Articles 1, 2, 5, 6, 7 If a man, presumably innocent, is kept in cus­ and 8 deals extensively with the right of libertytody for years, this is bound to ruin him. It is and security of person. It demands that a man ar­true in the case of Wemhoff that the trial ended rested should promptly be brought before a judge with a conviction, but it might have ended with (Article 5 (3) ), and that the legality of his deten­an acquittal as well. By detaining a man too long tion should be speedily decided by a court and before he is tried you throw him into despair and his release ordered if the detention is not lawfulthe will and desire of a despairing man to defend (Article 5 (4) ). his innocence is materially impaired. Article 6 (2) reads: “Everyone charged with a I believe that in all systems of law there exist criminal offence shall be presumed innocent untilalways ways and means of avoiding unreasonably proved guilty according to law”. This is a funda­long delayed trials. In a case for instance, where a mental provision. It clearly implies that until series a of offences has been committed by a man man is proved guilty he is entitled to be treated along with other persons, surely there is a proce­ as innocent. This should constantly be bornedural in device to sever the case of one person from mind in dealing with persons kept in custodyothers and/or to limit the charges against him to pending trial. The tenor and import of thesecertain offences if by not doing so the man has to Articles point to the requirement of being strict be detained for a very long time. The legal au­ in respect of time in depriving a man of his liber­thorities might continue or discontinue proceed­ ty. It follows that derogation from such rights ings against the man for a remaining offence or should be for limited periods. It is absurd to de­ offences later on. Long unreasonable delays in trials will thus be averted. Human Rights. The broad notion of the For the reasons I have endeavoured to explain,Resolution is that freedom is the rule and I find that there is a contravention of Article 5 (3) of the Convention on the part of the Federaldetention is an exceptional measure to be Republic of Germany for keeping Wemhoff inused only when it is strictly necessary. The custody awaiting his trial for an unreasonablyResolution recommends guarantees against long tim e."110 unnecessary or excessive detention, such as a right of appeal and review, representation The Court’s rejection of Judge Zekia’s by Counsel, and the obligation to give rea­ approach in the Wemfhoff jugdment andsons for detention. It also places emphasis the confirmation of this jurisprudence on in the importance of measures of substitu­ later cases is of the utmost importance. It tion to be used in place of detention. seriously limits the value of Article 5 (3) as a protection against lengthy periods of de­ tention on remand. This is not to deny Conclusionthat Article 5 (3) has intrinsic value: in three cases the Court has found violations of Most member States of the Council of Article 5 (3) but - and this is an importantEurope have adopted into their own sys­ qualification — the violations were foundtems the principles set out in the European primarily because the reasons for detentionConvention and Resolution (65) 11. In all on remand had been insufficient and the not countries examined, emphasis is placed because the periods of detention had beenupon the exceptional nature of pre-trial de­ excessive. Applying the Court’s jurispru­tention; all place limits on the offences in dence on Article 5 (3), the Commission hasrespect of which detention may be impos­ considered compatible with the Conveneed; and all have adopted guarantees against tion several cases where the accused hasunnecessary and excessive detention: the been detained on remand for some years.requirement that there must be convincing In theJentsch case,111 the Commission evidence against the accused, the limitation found that no violation of Article 5 (3) hadon the grounds on which detention may be occurred although the accused has spent ordered,6 the obligation to give reasons years in detention on remand. More recent­which refer specifically to the accused’s ly in April 1978, the Committee of Minis­personal circumstances, and the systems of ters decided that no violation had occurred review and appeal. in the Haase112 case although on three oc­ By contrast, the development and use of casions he had been detained on remandmeasures of substitution such as condi­ for a total of nearly two and a half years.tional release vary greatly. In Belgium, for example, the alternative to detention is money bail, and this is not greatly used. In Resolution (65) 11 the other three countries, far more sophis­ ticated alternatives exist for conditional Resolution (65) 11 of the Committee of release. However, the evidence suggests Ministers of the Council of Europe adopted that, for example, in France judges are on 9 April 1965 sets out certain principlesmuch less ready to make use of these alter­ to be followed in order "to promote and natives than their English counterparts. extend the application of those principlesMoreover, one may question the French relating to remand in custody already rec­system of the calculation of the amount of ognized” in the European Conventionmoney on bail in the light of Article 5 (3) of the European Convention, as it consists siderednot excessive or unwarranted in an­ only of a “guarantee to appear for trial,” other. but also of a “down-payment” towards any In the light of this state of affairs, it be­ fine or legal costs. comes a difficult and delicate problem to Despite the degree of uniformity in thelay down any uniform standard which de­ legal provisions which result from adher­scends to particulars. To borrow and adapt ence to the general principles in these twothe words of the European Court of Hu­ international instruments, judicial practiceman Rights in the Sunday Times case, it shows appreciable variations. For example, would clearly be contrary to the intentions as far as the frequency of pre-trial deten­of the drafters of the European Convention tion is concerned, the latest available fig­to hold as unreasonableper se periods of ures show that French juges'instruction d detention on remand which result directly remanded in custody in about 77% of casesfrom the very systems of criminal proce­ where detention was available, while magis­dures in the several High Contracting Par­ trates in England and Wales did so in onlyties.113 This problem is apparent also in 19% of cases. The result is that about 40% Resolution (65) 11, and is no doubt facing of the French prison population are uncon­the experts currently working under the victed, while the equivalent figure in Eng­aegis of the Council of Europe to produce land and Wales is about 13%. a further Resolution on detention pending As far as the length of detention is con­trial. cerned the figures show that in the coun­Notwithstanding these difficulties, one tries examined the majority of cases are can only agree with the view expressed by dealt with within 6 months. ThereafterJudge Zekia in his dissenting opinion in the there are significant differences and indeed,Wemhoff case, that a common standard of in France and Germany in particular, casesthe right to liberty can be useful and effec­ of detention for one year or more withouttive only if it makes substantial inroads trial are well known. into the national systems so that its scope One is drawn to the conclusion thatdoes not differ so vastly from one country these divergencies result in large measureto another. from the very systems of criminal proce­ Ultimately, if one system of prosecution dure in the several countries, and from theis by and large as fair as another, the com­ judicial habits to which these systems givemon standard of right to liberty should rise. Although these procedures are design­derive from the system in which pre-trial ed, at least in part, to protect the interests detention is used least. Other systems of the accused, each has its own internalshould adapt their operation to the extent logic so that what is considered justifiable necessary to attain such a standard. and reasonable in one country may be con­

I | TABLE I Length of Pre-Trial Detention (Figures for the last available year in each country)

Period o f Time Percentage of all defendants in custody dealt with within that time, by country Engl. & Wales France Germany Belgium 1976 1978 1977 1974 Less than 1 month not available 44.3 37.6 45.4 Less than 3 months 81.4 not available1 66.2 85.1 Less than 6 months 95.6 93.2 85.6 94.3 Over 6 months 4.4 6.8 14.4 5.7

Sources: England & Wales: Hansard 24 January 1977. Population of untried prisoners on 31 Decem­ ber 1976. France: Compte general du Ministere de la Justice 1978. Measures taken in respect of individuals whose detention has ended during the year. Germ any: Statistical information provided by theBundesministerium der Justiz. Persons whose cases were disposed of by judgment or otherwise during the year 1977. Belgium: Statistiques judiciaires, annee 1974. Institut national de la Statistique. Length of pre-trial detention of defendants dealt with by Cour the d'Assises or the Tribunal Correctionnel during the year 1974.

TABLE II Percentage of detained defendants who were acquitted, whose cases were not proceeded with, or who received a non-custodial sentence Engl. & Wales France Germany Belgium 1977 1978 1977 1974 Acquitted/ case not proceeded with 4.4 2.1 2.6 3.52 Non-custodial sentences 40.5 65 48 0.8

Sources: as above except England & Wales, for which the source is Prison Statistics: England & Wales 1977, Reception of untried prisoners showing disposal.

(1) 83.3% of detained defendants spent less than 4 months in pre-trial custody. (2) Acquittals only, in cases dealt with by the Courd ’Assises or Tribunal Correctionnel. Footnotes

(1) L.G. Koln; Beschl. v.9.6.1964 - 31/5/64 - NJW 1964 Heft 38/39, p. 1816 (2) See Michael King, Bail or Custody, Cobden Trust, 1971, pp. 76 et seq. (3) See Katz, Justice is the Crime, London, 1972, p. 4 (4) Celia Hampton, Criminal Procedure, London, 1977, p. 2 (5) Magistrates' Courts Act 1952, s. 105(4) (6) Ibid s. 105(2) (7) Criminal Justice Act 1967, s. 22 (8) On committals generally see Hampton, op. cit pp. 93—115 (9) Crown Court Rules 1971, rule 19, made under the Courts Act 1971, s. 7(4) (i) (10) R v Urbanowski (1976) IWLR 455 (11) Information prepared by the Lord Chancellor's Office. For comparison with 1977, see Judicial Statistics for England & Wales 1977, 1978 CMND 7254 HMSO (12) Magistrates’ Courts Act 1952, s. 105, as amended by Bail Act 1976 Sched. 2 (13) See generally Harrington, op. cit p. 71 et seq. (14) Bail Act 1976, s. (4) (1) (15) Ibid s. 5(3) (16) Ibid s. 5(1) (17) Ibid s. 5(4). In the case of represented defendants in the Crown Court, a note will be provided only on request, s. 5(5) (18) Ibid Sched. 1, Pt. Ill, para 1 (19) Ibid Pt. II, para 2 (20) Ibid para 3 (21) Ibid sched. 1, Pt. I, para 2 (22) Ibid para 3 (23) Ibid para 5 (24) Ibid para 9 (25) Bail Act 1976, s. 3(1) (26) Ibid s. 6(1) (27) Ibid s. 6(5) (28) Ibid sched. 1, Pt. I, para 8 (29) Bail Act 1976, s. 11 (30) The Act came into force on 17 April 1978: Bail Act 1976 (Commencement) Order 1978, s. 1 1978 no. 132 (31) King, op. cit p. 17 et seq. (32) The authors are grateful to the Home Office for this information. (33) Hansard, 24 January 1977 (34) Robin C.A. White (1977) Crim L.R. 338, 344 (35) Prison Statistics, England & Wales, 1977. CMND 7286, HMSO, p. 21. The figures are provi­ sional, and in about 7,000 cases the result of trial or sentence was not yet known. (36) Criminal Statistics for England & Wales 1977, CMND 7289, HMSO, p. 128. Table 8.5 (37) Ibid Table 8.4 (38) It should be noted, however, that direct citation is the most common method of prosecution. In 1977—78, 63,760 cases were dealt with by examining magistrates, while 490,791 were dis­ posed of by direct citation. A further 19,587 were dealt with by theflagrant delit procedure. (39) For more detailed commentary on this law, see Merle, Rev. Sc. Crim 1971, p. 567; Plawski, Revue de science penitentiaire, droit penal compare, 1973, p. 465 (40) Code of Criminal Procedure (CPP), Article 141, s. 2 (41) CPP, Art. 145 (42) Art. 146 (43) Art. 148 (44) Art. 145 (45) Arts 147 & 148 (46) Art. 148 (47) Art. 148 - 4 (48) Art. 179 (49) Art. 181 (50) Art. 137 (51) Art. 138 (52) Art. 141-2 (53) Art. 138-2, No. 11 (54) Art. 142 (55) These figures are taken from theCompte general du Ministere de la Justice, 1978 (56) “Note sur la situation de la population penale a la date du ler janvier 1979”. Ministere de la Justice, Service des Etudes, de la Documentation et des Statistiques, D. 42 a — ML/SA — no 79089 (57) For a commentary on the Law of 1975 see Reiss:Der Hauptinhalt des ersten gesetzes zur Reform des Strafverfahrenrechts (1. STVRG), NJW 1975, Heft 3, p. 81 (58) Basic Law, Articles 2 (2) & 104 (59) BVerfGE 19, 342 ff. (60) BVerfGE 20, 45 ff. (61) StPO, Articles 112 ff. (62) Article 114 (63) Article 112 (2), nos 1 & 2 (64) Article 112 (2), no. 3 (65) Article 112 (3) (66) Article 112 (a) (67) The next most frequent ground, suppression of evidence, was used in only 5% of decisions in 1977. (68) The Law of 1964 obliged the judge to give special weight to the accused’s situation and the cir­ cumstances tending to prevent him from absconding. This injunction was removed by the 1972 Law and now all factors have equal weight. (69) Article 113 (70) i.e. murder, death resulting from assault, genocide or crimes committed with the aid of explo­ sives and endangering physical integrity. (71) BVerfGE 19, p. 342 ff. (72) This ground was used in only 0.99% of cases in 1977. (73) This ground was used in about 4.27% of cases in 1977. (N.B. in some cases the decision to re­ mand in custody relies upon more than one ground.) (74) Article 112 a (75) Article 114 (2), no. 4 (76) Article 115 (4) (77) Article 122 (a) (78) Article 115 (4) (79) Article 117 (1) (80) Article 117 (5) (81) BVerfGE 21, 220 ff. 14.3.67 (82) Figures provided by the German Federal Ministry of Justice (83) For a comprehensive exposition of the Belgian law and practice on this subject, see Bernard- Tulkens and Bosly "Ladetention preventive en procedure penale beige", Revue de science cri- minelle et droit penal compare, 1975, no. 11, p. 79; and Declerecq“Problemes actuels de la de­ tention preventive”, Journal de Tribunaux (J.T.), 1975, pp. 109—116 & 129—133. (84) Constitution, Article 7 (85) See Articles 1 & 2 of the Law of 20 April 1874 (86) Cass., 5 August 1910, Pas. I, 413 (87) Thus it is insufficient to say that “one is faced with very serious facts, having regard also to the serious past of the accused”, Cass. (2nd Ch.), 19 June 1973, Pas. 1973, I, 976; see also Cass. 11 March 1974, J.T. 1974, p. 314. (88) Brux (ch. mis. acc.), 24 November 1966, Pas. 1967, II, 170. See also Cass, b., 14 January 1975, Pas., 1975,1,492. (89) Previously, the existence of a “public interest” was sufficient. (90) Article 5 of the Law of 20 April 1874, as amended by Article 3 of the Law of 13 March 1973. The same obligation to give a reasoned decision applies: Cass. (2nd ch.), 5 March 1974, Pas., 1974,1, 695. (91) Article 6 of the Law of 20 April 1874, as amended by Article 4 of the Law of 13 March 1973. (92) Article 10 of the Law of 20 April 1874 (93) Articles 27-29 (94) A non-lieu may state only that there is insufficient evidence, and the accused must “clear” him­ self in order to receive compensation. (95) Article 28, para 2 (96) Statistiques judiciaires: Activates des Cours et Tribunaux — Statistiques diverses, annee 1974. Institut National de statistique, 1979, no. 1 (97) The principal studies in English on the Convention are J.E.S. Fawcett: Application of the Euro­ pean Convention on Human Rights (OUP 1969); F.G. Jacobs: The European Convention on Human Rights (OUP 1975); A.H. Robertson: Human Rights in Europe (Manchester UP. 1977, 2nd ed.); a work on the Convention by A.B. McNulty and P.J. Duffy will be published by Butterworths in 1980. (98) See “Bringing an application before the European Commission of Human Rights”. Case-Law No. 3 (revised edition 1978). (99) Article 28 of the Convention (100) Article 31 of the Convention (101) Article 32 of the Convention (102) See Section IV of the Convention; cases may only be referred to the Court if the respondent state has accepted the Court’s jurisdiction either generally or ad hoc and where the case has been referred by either a government involved or the Commission. (103) W em hoff case, Neumeister case, Stogmuller, Matznetter andRingeisen cases. (104) Judgment of the European Court of Human Rights dated 27 June 1968, Series A (105) para 5 of the judgment, Series A, p. 22 (106) paras 10—12 of the judgment, Series A, pp. 24—25 (107) para 13 of the judgment, Series A, p. 25 (108) para 15 'of the judgment, Series A, p. 25 (109) para 17 of the judgment, Series A, p. 26 (110) Series A, pp. 38—40 (111) Application No. 260/65, Heinz Jentzsch v Federal Republic of Germany. Report of Commis­ sion adopted on 6 October 1970 approved by a resolution of the Committee of Ministers dated 5 May 1971. (DH (71) 2). (112) Application No. 7412/76, Docter Haase v Federal Republic of Germany. Report of the Com­ mission adopted on 12 July 1977 and approved by a resolution of the Committee of Ministers dated 18 April 1978 (DH (78) 2). (113) Sunday Times case, judgment of the Court of Human Rights, dated 26 April 1979, para 47. Judicial Application of the Rule of Law

Contempt of court and press freedom under art. 10 o f the European Convention of Human Rights.

On 26 April 1979, the European Court of Hu­This was granted in November 1972. man Rights delivered judgment in theSunday On appeal by Times Newspapers Ltd, the High Times case, which concerns the United King­Court’s order was reversed by the Court of Ap­ dom .1 peal but, following an appeal by the Attorney Between 1959 and 1962 a number of childrenGeneral, the House of Lords, on 18 July 1973, were born deformed, allegedly by reason of their unanimously restored the order. It found that mothers having taken thalidomide as a tranquilis-publication of the proposed article would consti­ er or sleeping pill during pregnancy. Legal pro­tute contempt of court in that it was likely to ceedings were subsequently instituted by manycause public prejudgment of an issue in pending parents against the maker and seller of thalido­court proceedings, including settlement negotia­ mide in the United Kingdom, Distiller Companytions, between the claimants and Distillers. The (Biochemicals) Ltd. injunction was finally discharged in 1976. In September 1971, theSunday Times pub­ In their application, lodged with the Commis­ lished an article headed “Our thalidomide chil­ sion on 19 January 1974, the applicants alleged dren: a cause for national shame” and announcedthat the injunction issued by the High Court and that it intended next to publish an article tracingrestored by the House of Lords, and the prin­ the history of the tragedy and of the manufac­ciples upon which the latter’s decision was ture and testing of thalidomide from 1958 to founded, were in violation of Article 10 of the 1961. convention.2 Distillers made formal representations to the In its report of 18 May 1977, the Commission Attorney General claiming that the above articlesexpressed the opinion, inter alia, by 8 votes to 5, constituted or would constitute contempt ofthat the restriction imposed on the applicants’ court in view of the litigation still outstanding.right to freedom of expression was in breach of The Attorney General subsequently decided toArticle 10 of the convention. apply to the High Court for an injunction to re­ The Court delivered its judgment on 26 April strain publication of the proposed further article. 1979. The applicants alleged that there had been

1) This summary of the decision is taken from theReport on the Activities of the Council of Europe, Sept. 1978—Aug. 1979, pp. 58-62. 2) Art. 10 reads as follows: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opi­ nions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in con­ fidence, or for maintaining the authority and impartiality of the judiciary. a violation of Article 10 by reason, firstly, of the The Court then examined the facts of the case above-mentioned injunction and, secondly,in of the light of these principles. It was of the opin­ the continuing restraints to which they were sub­ion that publication of the proposed article jected as a result of the over-breadth and lack of would probably not have added much to the precision of the law of contempt of court. The pressure already on Distillers to settle the par­ Court, after referring to its earlier case-law, con­ ents’ actions on better terms and that, even to cluded that it had to examine only the first ofthe extent that some readers might have formed these allegations. It had to ascertain, for this pur­an opinion as to Distillers’ alleged negligence, this pose, whether the interference with the appli­would not in the circumstances have had adverse cants' freedom of expression: consequences for the “authority of the judiciary". — was “prescribed by law”, Whilst publication might have provoked replies, — had an aim that was legitimate under Article the Court could not decide whether this reason 10, paragraph 2, and for the injunction was sufficient under Article 10, — was “necessary in a democratic society” for paragraph 2 without considering all the surround­ the aforesaid aim. ing circumstances. It noted, in this connection, The applicants argued that, in view of the un­that a question as to the injunction’s initial neces­ certainty of the law of contempt and the noveltysity was prompted by the fact that, when it was of the principles enunciated by the House ofdischarged in 1976, some actions involving the Lords, the restraint imposed could not be regard­ issue of negligence were still outstanding. ed as “prescribed by law". In the Court’s opin­ The judgment continues by stressing the im­ ion, the citizen must be able to have an indica­portance in a democratic society of the principle tion that is adequate in the circumstances of theof freedom of expression, which is applicable in legal rules applicable to a given case and he mustthe field of the administration of justice just as in be able to foresee, to a degree that is reasonable other fields. Not only do the mass media have the in the circumstances, the consequences whichtask a of imparting information and ideas concern­ given action may entail. The Court concludeding matters that come before the courts; the that, on the facts of this particular case, these public also has a right to receive them. Whether two requirements were satisfied and that, accord­ an interference with freedom of expression is jus­ ingly, the interference was “prescribed by law”.tified under the convention depends on the cir­ The Court found that both the law of con­cumstances of the specific case and, in particular, tempt of court in general and the injunctionany public interest aspect. The thalidomide trage­ granted against Times Newspapers Ltd had an dy and the question of where responsibility for it aim that is legitimate under Article 10, paragraph actually lay were matters of undisputed public in­ 2, namely the maintenance of “the authority...terest, of yet the case had been outstanding for sev­ the judiciary”. eral years, it was far from certain that the par­ On the question whether the injunction ents’was actions would have come on for trial and “necessary”, within the meaning of the conven­there had been no public enquiry. Even though tion, for the aforesaid aim, the Court firstly re­ the SundayTimes was not prohibited from dis­ called certain principles to be found in its case-cussing wider issues, such as various general prin­ law: Article 10, paragraph 2 leaves to the Con­ ciples of English law, it was, in the Court's view, tracting States, who have the initial responsibilityrather artificial to attempt to divide those issues for securing the convention rights and freedoms,from that of Distillers' alleged negligence. Be­ a "margin of appreciation", but this is not unlim­sides, facts did not cease to be a matter of public ited; the Court is empowered to give the final rul­ interest merely because they formed the back­ ing on whether a restriction is reconcilable withground to pending litigation. freedom of expression as protected by Article 10; The Court concluded, by 11 votes to 9, as fol­ when confronted with decisions of nationallows: in all the circumstances, the injunction did courts, the Court does not take the place of those not correspond to a social need sufficiently pres­ courts but rather reviews the conformity of thosesing to outweigh the public interest in freedom of decisions with Article 10. The Court also pointed expression; it therefore did not have reasons that out that its supervision was not limited to ascer­were sufficient under Article 10, paragraph 2, taining whether a state had acted reasonably,was not proportionate to the legitimate aim pur­ carefully and in good faith; further, that since suedit and, hence, was not necessary in a demo­ had to assess the injunction’s “necessity” cratic in society for maintaining the authority of terms of the convention, the standards of Englishthe judiciary; accordingly, there had been a viola­ law could not serve as its criterion. tion of Article 10. ICJ NEWS

Bogota Seminar on “Human Rights in the Rural Areas o f the Andes Region ”

A seminar on Human Rights in the Ru­tor, and social services, in particular health ral Areas of the Andes Region, organisedcare and education. by the International Commission of Jurists In most areas of the Andean region civil and co-sponsored by the Consejo Latino-and political rights are severely curtailed, americano de Derecho y Desarrollo it often being claimed by the governments (CLDD), i.e. the Latin American Councilconcerned that this is necessary in the in­ for Law and Development, was held in Bo­terests of promoting economic develop­ gota on 6-11 September 1979. This was ment. The participants at the seminar did the fourth in a series of Third World semi­ not share this view. On the contrary, in nars organised by the ICJ, the previoustheir conclusions and recommendations ones being in Dar es Salaam (1976), Barba­they stated that the failure to promote dos (1977), and Dakar (1978). economic and social rights more successful­ The 61 participants came from Vene­ ly in the rural areas was largely due to the zuela, Colombia, Ecuador, Peru, Bolivia repression of civil and political rights and and Chile and included judges, law profes­the denial to the rural population of the sors, advocates, social and political scien­ right to participate in the formulation and tists, economists, trade unionists and pea­application of agricultural and develop­ sant and indian leaders, all having know­ment policies which concern them. ledge of problems in the rural areas. The The participants said that they had subjects chosen for discussion were essen­found the seminar to be unusually stimulat­ tially ones relating to economic, social anding and fruitful, due largely to the mixture cultural rights. They included agrarian of re­ skills and occupations which were repre­ form, labour legislation and trade unionsented, and to the opportunity to learn rights, rights of the indigenous (indian) andmore about the experiences of those in peasant population, economic and agricul­other countries of the region who face sim­ tural policies, the administration of justiceilar problems and difficulties. and access to legal services in the rural sec­

ICJ Newsletter

In July 1979 the ICJ launched a newpapers and other documents of the Secre­ quarterly publication, the “ICJ Newslet­tariat. ter”. It describes the activities of the ICJ Annual subscription: 20 Swiss Francs Secretariat, observer missions, publications, (surface mail), 25 Swiss Francs (airmail). press releases, interventions, and reports onSupplied free to Associates (see p. 2). conferences. Appendices include working MEMBERS OF THE COMMISSION KEBAM'BAYE President of the Supreme Court of Senegal; former Presi­ (President) dent U.N. Commission on Human Rights ELI WHITNEY DEBEVOISE Attorney at law, New York (Vice President) T.S. FERNANDO Former Attorney General, President of the Court of Ap­ (Vice President) peal and High Commissioner of Sri Lanka MIGUEL LLERAS PIZARRO Member of the Supreme Court, Colombia (Vice President) ANDRES AGUILAR MAWDSLEY Professor of Law, Venezuela; former President Inter- American Commission of Human Rights GODFREY L. BINAISA President of Uganda ALPHONSE BONI President of Supreme Court of Ivory Coast BOUTROS BOUTROS GHALI Minister of State of Foreign Affairs, Egypt ALLAH BAKHSH K. BROHI Former Law Minister, Pakistan WILLIAM J. BUTLER Attorney at law, New York JOEL CARLSON Attorney at law, New York; formerly attorney in South Africa HAIM H. COHN Supreme Court Judge; former Minister of Justice, Israel ROBERTO CONCEPCION Former Chief Justice, Philippines CHANDRA KISAN DAPHTARY Senior Advocate; former Attorney General of India TASLIM OLAWALE ELIAS Judge of International Court of Justice; former Chief Jus­ tice of Nigeria ALFREDO ETCHEBERRY Advocate; Professor of Law, University of Chile EDGAR FAURE Former Prime Minister of France FERNANDO FOURNIER Attorney at law, Costa Rica; former President of the Inter- American Bar Association; Professor of Law HELENO CLAUDIO FRAGOSO Advocate; Professor of Penal Law, Rio de Janeiro LORD GARDINER Former Lord Chancellor of England P. TELFORD GEORGES Professor of Law, University ofthe West Indies; former Chief Justice of Tanzania JOHN P. HUMPHREY Professor of Law, Montreal; former Director, U.N. Human Rights Division HANS HEINRICH JESCHECK Professor of Law, University of Freiburg, Fed. Rep. Ger­ many LOUIS JOXE Ambassador of France; former Minister of State P.J.G. KAPTEYN Councillor of State, Netherlands; former Professor of In­ ternational Law SEAN MACBRIDE Former Irish Minister of External Affairs and U.N. Com­ missioner for Namibia RUDOLF MACHACEK Member of Constitutional Court, Austria FRANCOIS-XAVIER MBOUYOM Procureur General, United Republic of Cameroun MRS NGO BA THANH Member of National Assembly, Vietnam TORKEL OPSAHL Professor of Law, Oslo; Member of European Commission GUSTAF B.E. PETREN Judge and Deputy Ombudsman of Sweden SIR GUY POWLES Former Ombudsman, New Zealand SHRIDATH S. RAMPHAL Secretary General of the Commonwealth Secretariat; former Attorney General, Guyana DON JOAQUIN RUIZ-GIMENEZ Professor of Law, Madrid; President, Spanish Justice and Peace Commission MICHAEL A. TRIANTAFYLLIDES President Supreme Court of Cyprus; Member of European Commission J. THIAM HIEN YAP Attorney at Law, Indonesia MASATOSHI YOKOTA Former Chief Justice of the Supreme Court of Japan HONORARY MEMBERS Sir ADETOKUNBO A. ADEMOLA, Nigeria ISAAC FORSTER, Senegal ARTURO A. ALAFRIZ, Philippines W.J. GANSHOF VAN DER MEERSCH, Belgium GUISEPPE BETTIOL, Italy JEAN FLAVIEN LALIVE, Switzerland DUDLEY B. BONSAL, United States NORMAN S. MARSH, United Kingdom VIVIAN BOSE, India JOSE T. NABUCO, Brazil PHILIPPE BOULOS, Lebanon LUIS NEGRON FERNANDEZ, Puerto Rico A.J.M. VAN DAL, Netherlands Lord SHAWCROSS, United Kingdom PER FEDERSPIEL, Denmark EDWARD ST. JOHN, Australia SECRETARY-GENERAL NIALL MACDERMOT RECENT ICJ PUBLICATIONS

The Trial of Macias in Equatorial Guinea Report of an observer mission by Dr Alejandro Artucio, legal officer o f the International Commission of Jurists, published by the International Commission of Jurists and the International University Exchange Fund, Geneva, December 1979, 70 pp. Available in english or spanish. Swiss Francs 4 or US$ 2.50, plus postage. The report includes a description of the nature of the repression under Macias and the economic and social conditions of the country resulting from it. Criticisms are made of certain legal aspects of the trial, but the observer found most of the charges fully proved.

Persecution of Defence Lawyers in South Korea Report of a mission by Adrian W. DeWind, former President of the New York City Bar Association and John Woodhouse, Secretary, Centre for the Independence of Judges and Lawyers, published by the International Commission of Jurists, Geneva, November 1979, 68 pp. Swiss Francs 4 or US$ 2.50, plus postage. This report describes the prosecution and punishment or harassment of nine lawyers arising out of their defence of political prisoners. These cases indicate the harass­ ment accorded to “the small body of civil rights attorneys who have attempted to carry out their obligation to be vigilant in the protestation of human rights.” As a background to these cases, the authors describe the general nature of the political repression and the undermining of the independence of the judiciary in South Korea.

Human Rights in Guatemala A report of a mission by Donald T. Fox, New York attorney, published by the International Commission of Jurists, Geneva, September 1979, 66 pp. Available in english or spanish. Swiss Francs 4 or US$ 2.50, plus postage. Mr Fox's report outlines the historical, social and economic factors which have resulted in “a large area of institutionalised exploitation and injustice"; gives an account of the prevailing violence by right and left wing forces, the greater part being by military and clandestine para-military forces acting in the ‘‘narrowly per­ ceived economic interests" of dominant groups; and commends the recent proposals of the National Council of Economic Planning for a development strategy to achieve a just and stable social peace.

ICJ Newsletter Quarterly report on IC Jactivities, published January, April, July and October. Annual subscription: 20 Swiss Francs (surface mail), 25 Swiss Francs (airmail) This informative quarterly publication describes the activities of the ICJ, its semi­ nars, initiatives in the United Nations, observer missions, publications, press releases, interventions and reports on conferences attended by members of the ICJ staff. The Appendices include working papers and other documents produced by the ICJ secretariat.

Publications available from: ICJ, P.O. Box 120, CH-1224 Geneva or from: AAICJ, 777 UN Plaza, New York, N.Y. 10017