The Human Rights Committee, established under article 28 of the
International Covenant on Civil and Political Rights,
Meeting on 22 March
2001
Adopts the following:
Decision on admissibility
1. The author of the communication is Colin Uebergang, an Australian citizen,
currently residing in Brisbane in the State of Queensland, Australia.
He claims to be a victim of violations by Australia of articles 9, paragraph
5 and 14, paragraph 6, of the International Covenant on Civil and Political
Rights. The author is represented by counsel. The State party ratified
the Covenant on 13 October 1966 and the Optional Protocol on 25 December
1991.
The facts as submitted
on behalf of the author:
2.1 Between 8 September and 11 September 1997, the author was tried
on indictment on three counts of false pretences in the District Court
at Brisbane and was found guilty on one count and discharged in respect
of the other two counts. On 11 September 1997, he was sentenced to a
term of two years= imprisonment.
2.2 The author appealed
his conviction to the Queensland Court of Appeal. On 27 February 1998,
the Court of Appeal unanimously allowed his appeal, set his conviction
aside and entered a verdict of acquittal. Mr. Uebergang was released
from prison later that day.
2.3 The author wrote to
the Queensland Attorney-General, on 10 February 1999 and 20 May 1999,
seeking compensation for a miscarriage of justice occasioned by his
allegedly wrongful imprisonment for five and a half months (from his
conviction in the trial court until acceptance of his appeal). On 17
February, the advisor to the Office of the Attorney-General informed
Mr. Uebergang that the Attorney-General refused to pay compensation
to the victim as Ano exceptional circumstances which might justify the
making of an ex-gratia payment of compensation ... have been identified@.
The author=s counsel wrote to the Attorney-General on 5 June 2000 and
received the same negative response. In requesting compensation from
the Attorney-General, the author claims that he has exhausted all domestic
remedies within the meaning of Article 2 and Article 5, paragraph 2(b),
of the Optional Protocol.
The complaint:
3.1 Counsel states that
the refusal of the State of Queensland to compensate Mr. Uebergang for
this period of wrongful imprisonment constitutes a breach by Australia
of articles 9, paragraph 5 and 14, paragraph 6, of the Covenant.
3.2 Counsel argues that
the refusal of the Attorney-General=s office to grant compensation because
there were no Aexceptional circumstances@, is a violation of article
14, paragraph 6, as this criterion is not included in the terms of this
article of the Covenant.
3.3 Counsel contends that
the elements of article 14, paragraph 6, are as follows: that there
is a final decision; that the complainant is convicted of a criminal
offence; that the conviction is subsequently reversed or that the person
is pardoned on the ground that a new or newly discovered fact shows
conclusively that there has been a miscarriage of justice; and it has
not been proved that the non-disclosure of the unknown fact in issue
is wholly or partly attributable to the complainant.
3.4 Counsel submits that
all elements of article 14, paragraph 6, have been satisfied. He contests
the Attorney-General=s argument that this article only applies to Acases
where the convicted person has unsuccessfully exercised all their appeal
rights, with the result that the final decision of the courts is that
their conviction is affirmed@. Counsel argues that such a view would
mandate the limitation of the application of the Covenant only to those
cases where a pardon had been granted and believes that the terms of
this article are expressly intended to apply to cases of reversal of
conviction, as well as cases of pardon.
3.5 Counsel makes no submissions
with regard to a violation of article 9, paragraph 5, except to say
that this article was violated.
Decision on inadmissibility:
4.1 Before considering any
claims contained in a communication, the Human Rights Committee must,
in accordance with rule 87 of its rules of procedure, decide whether
or not it is admissible under the Optional Protocol to the Covenant.
4.2 With regard to the author=s
claim for compensation under article 14, paragraph 6, of the Covenant,
the Committee observes that the conditions for the application of this
article are:
(a) A final decision convicting
a person of a criminal offence;
(b) Suffering of punishment
as a consequence of such conviction; and
4.3 The Committee observes
that the author=s conviction by the District Court on 11 September 1997
was overturned by the Court of Appeal on 27 February 1998. The Committee
is, therefore, of the view that the author's conviction was not
a Afinal decision@ within the meaning of article 14, paragraph 6 and
that article 14, paragraph 6, does not apply to the facts of the instant
case. This part of the communication is therefore inadmissible ratione
materiae under article 3 of the Optional Protocol.
4.4 With respect to the
author=s allegation of a violation of article 9, paragraph 5, the Committee
notes that after his conviction by the trial court the author was imprisoned
on the basis of the sentence passed by that court. His subsequent acquittal
by the Court of Appeal does not, per se, imply that his imprisonment
on the strength of a court order was unlawful. Counsel has provided
no further arguments to substantiate the claim under article 9, para.
5. This part of the communication is therefore inadmissible under article
2 of the Optional Protocol.
5. The Committee, therefore,
decides :
(a) that the communication
is inadmissible;
[Done in English, French
and Spanish, the English text being the original version. Subsequently
to be issued also in Arabic, Chinese and Russian as part of the Committee=s
annual report to the General Assembly.]
___________
* The following members of the Committee participated in the examination
of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando,
Mr. Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Mr. Louis
Henkin, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina
Quiroga, Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Martin Scheinin,
Mr. Ivan Shearer, Mr. Hipólito Solari Yrigoyen, Mr. Ahmed Tawfic Khalil,
Mr. Patrick Vella, Mr. Maxwell Yalden.
