TNAG-2323-FCO40-3367-Hong-Kong-Bill-of-Rights-Vietnamese-boat-people-1991 — Page 2

CODE 18-77

HKC 241/4

1991

17

Reference..

From:

Paken

Mr J Rankin

Assistant Legal Adviser

K 174

270 3055

да,

for

Date:

21 February 1991

11/3

Ms

Minute

han Mo Barrett

Barrett

Assistant Legal Adviser

HUMAN RIGHTS COMMITTEE DECISIONS UNDER OPTIONAL PROTOCOL: ARTICLES 9(1) AND (4) ICCPR: VBPs

1.

I am sorry to have taken so long to examine the HRC's decisions under the optional protocol to the ICCPR as they concern Articles 9(1) and 9(4). My one excuse is that, as you are aware, the process, by virtue of inadequacies of the documentation, is a long one.

2.

Most of the early cases are not particularly helpful in shedding light on the issues in which you are presently interested. Breaches of Article 9(1) were found, for example, because of a failure to release someone despite a judicial order to that effect or to release someone after their sentences of imprisonment had been fully served. Breaches of Article 9(4) were found because habeas corpus was not available, thus no effective remedy was available to challenge arrest or detention (although it may be possible to argue from the cases that the availability of habeas corpus to some extent satisfies the requirements of Article 9(4)).

3. I would, however, draw your attention to the following cases which are of some assistance:

Case 90/1981 breach of Article 9(4) because the individual was not brought before a judge and no court decided "within a reasonable time" on the lawfulness of his detention.

Case 157/1983 - breach of Article 9(1) because arbitrarily arrested on 1 July 1979 and detained without trial until 31 January 1981.

The

Case 236/1987 an asylum case no breach found. HRC noted that Article 9 prohibits unlawful arrest and detention, whereas the author was lawfully arrested in connection with his unauthorised entry into Canada and the decision to detain him was not made arbitrarily especially in view of his insistence not to leave the country.