Human Rights Committee

Views adopted by the Committee under article 5 (4)of the Optional Protocol, concerning communication No. 2290/2013 * , ** , ***

Communication submitted by:Karamo Fofana (represented by counsel, Cesare Romano)

Alleged victim:The author

State party:Ecuador

Date of communication:28 February 2013 (initial submission)

Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure (rule 92 of the updated rules of procedure), transmitted to the State party on 22 October 2013 (not issued in document form)

Date of adoption of decision:23 October 2018

Subject matter:Arbitrary detention of a person with refugee status

Substantive issues:Arbitrary detention, lack of access to an effective remedy and compensation

Procedural issues:Exhaustion of domestic remedies; non‑substantiation of claims

Articles of the Covenant:9 (1), (4) and (5) read alone and in conjunction with article 2 (1) and (3)

Articles of the Optional Protocol:2 and 5

1.1The author of the communication is Karamo Fofana, a national of Guinea who was born on 17 November 1986. The author claims that the State party violated his rights under article 9 (1), (4) and (5) read alone and in conjunction with article 2 (1) and (3) of the Covenant. The Optional Protocol entered into force for the State party on 23 March 1976. The author is represented by counsel.

Factual background

2.1The author was born in Macenta (Guinea) and studied economics and business at a university in Conakry. The author’s father belonged to the political party known as the Rassemblement du peuple de Guinée, which was part of the opposition to the military junta that took power in 2008. The author was a member of an oppositionist student movement. On 28 November 2009, oppositionist parties and organizations held a peaceful demonstration to protest against corruption, poverty and government abuses. Law enforcement officials arrived at the stadium where the protesters had gathered and opened fire on thousands of them, killing many, while others were trampled to death in the stampede caused by the gunfire.

2.2The author’s mother, father and three brothers were killed in the stadium and he was arrested and taken to a military base where he was kept for five days and beaten repeatedly with weapons, whips and belts. Taking advantage of the fact that the guards were drunk and had fallen asleep, he was able to escape through a window. He went to the family home but found no one there. He called his father’s mobile phone and was told by a police officer that his father had died at the stadium. It was then that the police realized that he was still alive and sent patrols to look for him at the family home. However, the author had already left for the local mortuary where, after having identified the bodies of his parents, he obtained their death certificates. The author never found the bodies of his three brothers.

2.3Afterwards, he returned to the family home where he found a warrant for his arrest for “subversive activities” on the door and decided to go into hiding. While he was in hiding, the author received death threats from the Police Commissioner. Because his life was in danger, he crossed the border into Senegal on foot because he could not obtain a passport owing to the arrest warrant that had been issued against him. He remained in Senegal for a few days and then, with the help of a friend, obtained a French passport and an airline ticket to Quito, where he arrived on 30 January 2010.

2.4Upon arrival, he attempted to seek asylum but, as he did not speak Spanish, he was unable to communicate with the authorities, which allowed him to enter the country. He spent the next 31 days wandering aimlessly around Quito. As he did not speak Spanish, was afraid of the authorities and knew no one, he did not manage to contact the Office of the United Nations High Commissioner for Refugees (UNHCR) or the International Organization for Migration (IOM). He decided to go to Canada where he had acquaintances and, with their help, he purchased an airline ticket to Toronto.

2.5On 2 March 2010, he was arrested at Quito airport on suspicion of travelling on a false passport. All his personal effects were confiscated. The author submits that he attempted to explain his situation to the authorities and to seek asylum but that his request was ignored. He claims that he asked to be put in touch with UNHCR or IOM. On 3 March, a flagrante delicto oral hearing took place before the judge of the Twenty-second Criminal Trial Court of Pichincha, signalling the beginning of the investigation phase. A pretrial detention order was issued to ensure that he would appear for trial, given the lack of information about his social ties to the local community. At the hearing, the author explained the circumstances that had prompted him to leave his country, as is reflected in the court transcript. On 10 May, the evidentiary hearing took place before the judge of the Eighth Criminal Trial Court of Pichincha, during which charges were brought against the author by the prosecutor. It was stated that the case file showed that the author had informed the authorities of the reasons that had compelled him to leave his country – the murder of his family members, and persecution and torture, as reflected in the court transcript – and that he had been assigned an interpreter of German origin who did not speak proper French, which had prevented him from explaining the circumstances of his case to the judge and from understanding what had happened at the hearing. On 17 May, the temporary judge of the Eighth Criminal Trial Court of Pichincha issued a decision to convene a trial and confirmed the author’s pretrial detention.

2.6On 30 July 2010, the Eighth Criminal Trial Court of Pichincha examined the evidence presented by the prosecutor, including the author’s account, in which he described the circumstances that had prompted him to leave his country and explained that he had arrived in the State party as a refugee. Notwithstanding, the Court sentenced the author to one year in prison under article 343 of the Criminal Code. The author was placed in the Quito N.2 social rehabilitation centre for men. In the centre, he did not have access to sufficient food or to a bed – basic items that are provided by detainees’ families and friends, – since he had no support network and all his belongings had been confiscated.

2.7In October 2010, he was contacted by the non-governmental organization (NGO) Asylum Access Ecuador, which helped him resume the process of submitting his asylum application, which he had begun in May of the same year (see para. 5.1). On 13 October 2010, he was interviewed by a representative of the secretariat of the committee responsible for determining refugee status in Ecuador. He was recognized as a refugee on 14 October. On 28 October, he filed an application for habeas corpus with the Second Chamber for Labour and Children and Adolescents’ Affairs of the Provincial Court of Pichincha. He argued that his arrest was unlawful, arbitrary and illegitimate because it violated the Convention relating to the Status of Refugees (the 1951 Convention), which the State party had ratified. On 30 October 2010, the Court granted the author’s application for habeas corpus and ordered his release on the grounds that his detention violated both the Constitution and the State party’s international obligations, bearing in mind the decision of 14 October recognizing him as a refugee. The author was released on 4 November 2010.

2.8On 10 November 2010, the author was granted a refugee visa. On 12 November, he requested the Second Chamber for Labour and Children and Adolescents’ Affairs to convene a hearing on the reparation owed to him on account of his arbitrary detention between 2 March and 4 November 2010. He argued that his release did not constitute sufficient reparation since he had been unlawfully detained for eight months, during which time he had been unable to work and had suffered trauma owing to his detention conditions, which had resulted in his revictimization, given his status as a torture victim. He considers that, under article 18 of the Organic Act on Jurisdictional Guarantees and Constitutional Oversight, he is entitled to full reparation. His request was denied on 22 November 2010 on the grounds that, as his refugee status had been recognized only on 14 October 2010, he could not claim that his detention had been unlawful or arbitrary, given that he was released on 4 November.

2.9At the same time, on 19 November 2010, the author filed an application for a special protective remedy against the judgment of 30 October 2010, which was referred to the Constitutional Court. The author claimed that even though the judgment in question stated that his detention was unlawful and illegitimate, it failed to order the reparation to which he was entitled under the Constitution and article 18 of the Organic Act on Jurisdictional Guarantees and Constitutional Oversight.

2.10On 17 April 2012, the Constitutional Court rejected the application on the grounds that the author had filed his asylum application only once he found himself in detention, despite already having been in the country for approximately 30 days. It considered that he did not intend to remain in Ecuador as a refugee but to go to another country – Canada – to seek such protection. It also stated that the Provincial Court of Pichincha, upon considering the author’s detention to be unlawful from the time when he had been recognized as a refugee, i.e. on 14 October 2010, did not deem it necessary to order other reparation measures in addition to his release. The author was notified of the decision on 28 August 2012.

2.11On 31 August 2012, the author filed a petition for clarification and prorogation with the Constitutional Court in respect of the decision of 28 August 2012. He requested the Court to clarify in its arguments relating to the decision to consider that the State party’s international obligations in respect of refugees were effective only once the decision recognizing their refugee status had been taken. He submitted that, under the 1951 Convention, recognition of refugee status has a declarative effect, meaning that the refugee status exists before the State formally determines it. Consequently, under article 31 of the 1951 Convention, the author was a refugee at the time he left his country and entered the State party, which was under an obligation not to impose criminal sanctions on him for an irregular stay. He also claimed that his failure to apply for asylum immediately upon arrival was due to the language barrier, but that he took the necessary steps to contact the competent authorities and UNHCR, to no avail. Moreover, he requested that the arguments relating to the State party’s obligation to provide him with effective access to an asylum procedure upon his arrival in the country should be further clarified. He claimed that the authorities were obliged to inform him of his rights under article 40 (2) of the Constitution, article 12 of the Code of Criminal Procedure and the relevant articles of the American Convention on Human Rights and the 1951 Convention.

2.12The Constitutional Court acknowledged receipt of his petition on 19 December 2012. However, at the time the complaint was submitted, his petition was still pending, despite the fact that the Organic Act on Jurisdictional Guarantees and Constitutional Oversight provides that a decision should be taken within eight days of a petition’s having been filed. On 14 March 2013, the Constitutional Court rejected his petition, reiterating the reasoning set out in the decision of 17 April 2012.

2.13After the author’s release, his belongings were not returned to him. He had nowhere to go until, though a fellow detainee, he contacted the Assembly of God, which invited him to work with them in the Amazon region for a year. He then worked with Asylum Access. On 20 May 2013, his refugee visa was renewed for two years.

2.14On 20 June 2013, the author was accepted as a refugee in Canada, where he arrived in September 2013 and where he now resides.

The complaint

3.1The author states that the State party violated his rights under article 9 (1), (4) and (5) read alone and in conjunction with article 2 (1) and (3) of the Covenant.

3.2With regard to the violation of article 9 (1) of the Covenant, he states that his detention was arbitrary because it violated international and domestic law. He submits that, according to article 1 (2) of the 1951 Convention, the term “refugee” shall apply to any person who “… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …”. He believes that he fulfils the criteria laid down by the 1951 Convention as he had to leave Guinea following the murder of several members of his family, arbitrary detention followed by torture, the issuance of a warrant for his arrest and threats. In addition, UNHCR has established that a person is a refugee from the moment that he or she fulfils the criteria to acquire that status and that, upon entering the territory of the State party, he acquired refugee status. The decision of 14 October 2010 simply recognized his pre-existing status.

3.3The State party violated article 31 (1) of the 1951 Convention, which provides that “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened …, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”. The same article provides that the Contracting States must not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions must only be applied until their status in the country is regularized or they obtain admission into another country. The author refers to a document published by UNHCR, according to which the practice of prosecuting refugees for using false documentation without regard to the circumstances of individual cases, and without allowing an opportunity for any claim for asylum to be considered by the responsible authority before prosecution, is a breach of article 31 of the Convention.

3.4The author submits that he arrived in the State party with false documents as they were necessary for him to avoid persecution in Guinea. When he arrived at the airport, during his first month in Quito and when he was arrested, he asked to be put in touch with UNHCR or IOM and produced documents proving his refugee status. However, the authorities never processed his request. Due to the language barrier and the fact that he did not know anyone in the country, he was unable to complete the asylum application process until the above‑mentioned NGO helped him to do so.

3.5The author considers that his rights under article 9 (1) of the Covenant were violated since all his belongings were confiscated when he was imprisoned and were never returned, the food that he received in detention was insufficient and he did not have access to a bed or medical treatment. He states that his detention, in addition to being arbitrary, revictimized him, given that he was a torture victim. He also claims that, during his detention, he feared for his personal safety owing to the possibility that guards or other detainees might commit acts of violence against him and that the State party violated his rights by releasing him without providing him with any assistance whatsoever. The author concludes that the conditions of his arbitrary detention caused him serious physical and psychological harm.

3.6With regard to the violation of article 9 (1) read in conjunction with article 2 (3) of the Covenant, the author states that he did not have access to an effective remedy in respect of his arbitrary detention since (a) at the time of his arrest, even though he tried to explain that he was a refugee and produced supporting documentation, the authorities made no attempt to ascertain the reasons that had prompted him to leave his country; (b) on 30 July 2010, the Eighth Criminal Trial Court of Pichincha, while acknowledging that the author might be a refugee, sentenced him to imprisonment; (c) the habeas corpus judgment, while acknowledging that the detention was unlawful and illegitimate and ordering his release, did not provide an effective remedy in respect of his arbitrary detention or the trauma that he had suffered as a result; and (d) the Constitutional Court also denied him an effective remedy upon rejecting his request for reparation.

3.7With regard to the alleged violation of article 9 (4) of the Covenant, he states that his rights were violated owing to the delay in recognizing his refugee status, in ordering his release and in responding to the petition for r clarification and prorogation that he filed with the Constitutional Court. He submits that, under this article, the State party is obliged to ensure that anyone who is deprived of his or her liberty shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his or her detention and order his or her release if the detention is not lawful, which it failed to do in his case. Indeed, although the author was arrested on 2 March 2010, his detention was not formalized until 30 July, and his refugee status was recognized only on 14 October, 227 days after his arrest and 161 days after his asylum application. He was therefore unable to contest the decision of 30 July 2010 until his refugee status was recognized on 14 October. Without such recognition, application for habeas corpus would not have been granted. In addition, the Constitutional Court violated article 9 (4) of the Covenant since, at the time of submission of the complaint, it had not responded to the petition for clarification and prorogation, in violation of the domestic legislation establishing a time limit of eight days for a decision to be taken.

3.8The author claims that article 9 (5) of the Covenant was also violated as, despite the habeas corpus judgment recognizing the unlawful nature of his detention, both the Second Chamber for Labour and Children and Adolescents’ Affairs and the Constitutional Court rejected his requests for reparation, considering his release to be sufficient. This reparation was insufficient and contravenes domestic and international standards. Article 11 (9) of the Constitution provides that the State is obliged to redress violations of individuals’ rights attributable to the actions or omissions of its civil servants and public employees in the performance of their duties …”.

3.9With regard to the alleged violation of article 9 (5) of the Covenant, he refers to the Committee’s Views in which it ordered Australia to pay the author adequate compensation pursuant to article 2 (3) (a) of the Covenant for having violated his rights under article 9 (1), as he had been detained for two years while the authorities considered his asylum application. The author considers that the State party is under an obligation to redress his arbitrary detention, bearing in mind that it entered no reservation to article 9 (5) of the Covenant. He adds that the need for compensation is all the more important when it concerns refugees, as they have insufficient financial means, experience greater difficulty in obtaining employment and have no support network. He reiterates that, upon his release, the State party provided him with no assistance whatsoever, his belongings were never returned to him and it was very difficult for him to find work on account of his criminal record.

3.10The author requests several reparation measures: (a) the State party must apologize for having detained him arbitrarily; (b) his criminal record must be expunged; (c) the State party must take measures to ensure that the violations are not repeated; (d) he must be awarded compensation for moral damage and loss of earnings. Bearing in mind the minimum wage in Ecuador at the time of the events, he is seeking $2,200 in compensation; (e) he must be awarded compensation for the moral damage suffered as a result of the precarious conditions of his detention and the revictimization that he suffered, bearing in mind that he was tortured in his country and that he arrived in the State party in search of refuge, on account of which he is seeking $20,000 in compensation; and (f) the State party must cover the cost of his psychological treatment, which amounts to $7,500.

State party’s observations on admissibility and the merits

State party’s observations on admissibility

4.1On 22 April 2014, the State party submitted its observations on the admissibility and the merits of the communication. It maintains that the communication is inadmissible owing to the non-exhaustion of domestic remedies and non-substantiation of claims. It states that Ecuador has a long tradition of providing refuge on humanitarian grounds and that, as at December 2013, it has granted refugee status to 59,707 persons. It submits that immigration officials and police officers receive foreign language training and training on the asylum application procedure set out in Decree No. 1181 of 2012, as evidenced by the fact that 1,119 persons from French-speaking countries have submitted asylum applications.

4.2It also states that the author only applied for asylum after having been arrested and that there is no record of his having applied for asylum upon arrival or evidence to suggest that he intended to seek refugee status in Ecuador since, as he himself indicated, his intention was to go to Canada.

4.3The State party also considers that the author did not exhaust the remedies available to him during his criminal trial, as he did not appeal the court judgment of 30 July 2010 or file an appeal in cassation or request a judicial review. These measures constitute extraordinary remedies for reviewing the legality of and identifying judicial errors in court judgments. According to article 11 of the Constitution, the State is to be held liable for instances of “arbitrary detention, judicial error […] and infringement of the principles and rules of due process”. It considers that the author seeks to confuse the remedies available in these proceedings with that of habeas corpus, the purpose of which is not to rectify a judicial error but to restore the liberty of persons who have been unlawfully deprived of it. It also refers to article 32 of the Code of the Judiciary, which provides for the possibility of suing the State for a judicial error, and points out that the author did not avail himself of this option.

4.4Furthermore, the State party reiterates that the author’s detention was not unlawful or arbitrary, as at no point during the criminal proceedings did he claim to have refugee status to enable the court to take the necessary action, and notes that the decision declaring him to be a refugee was handed down after his conviction. It maintains that the author also failed to avail himself of the remedies available to contest the decision of 30 October 2010, in particular the remedy of appeal, which might have led to a decision on reparation. It considers the remedy of habeas corpus to have effectively served its purpose, which was to secure the author’s immediate release.

4.5The State party submits that the author’s application for a special protective remedy does not constitute an appeal to a higher instance, as the judge of the Constitutional Court could not rule on matters of law related to the ordinary justice system but only on an alleged violation of a constitutional right. It was therefore not an adequate remedy.

State party’s observations on the merits

4.6The State party states that all applicable domestic and international standards were adhered to during both the author’s arrest and detention. It submits that liberty of person may be restricted, provided that the restrictions have their basis in law and are applied in accordance with the relevant legal procedures. In the author’s case, all the legal standards were respected, including article 76 (7) (a) of the Constitution, which enshrines the right of due process, in particular the right to a defence.

4.7It adds that the concepts of legality and the prohibition of arbitrariness must be differentiated. In the case of the first concept, both the grounds for depriving someone of his or her liberty and the procedure for doing so must be laid down in law, whereas the second concept should be understood as meaning that no one may be detained on grounds or by methods that, although they can be described as lawful, are incompatible with respect for fundamental rights because they are “unreasonable, unforeseeable or lacking in proportionality”.

4.8The State party states that the author’s detention was not unlawful or arbitrary given that, despite the fact that the treaties ratified by the State party obliged it to provide protection to the author as an asylum seeker, the latter did not inform the authorities in a timely manner of his circumstances of persecution to enable them to act accordingly. On the contrary, the author, using a false passport, attempted to go to another country to apply for asylum, which led the authorities to believe that he did not intend to stay in Ecuador as a refugee. In addition, the analysis conducted by the authorities was in keeping with the principles of legality and the prohibition of arbitrariness as the author’s conduct was consistent with a criminal offence.

4.9The State party also submits that the Ecuadorian legal system provides effective remedies to contest any arbitrary deprivation of liberty, as evidenced by the immediate release of the author once his application for habeas corpus had been granted. It also recalls that the Constitution provides several remedies to protect fundamental rights, including a special protective remedy, which offers the possibility of reviewing court decisions that have allegedly resulted in rights violations and, may give rise to an order of reparation. However, this remedy does not constitute an appeal to a higher instance as its scope is limited to constitutional matters and the remedy cannot be used to examine matters of law on which rulings have already been issued. The State party recalls that the author inappropriately made a request for a new hearing to discuss reparation arising from his deprivation of liberty, which was duly rejected by the Constitutional Court.

4.10With regard to the alleged violation of article 9 (4) of the Covenant, it submits that there was no unreasonable delay in taking a decision on the author’s asylum application, and it refers to the jurisprudence of the European Court of Human Rights, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, according to which the reasonableness of the time limit is determined by taking certain factors into account, in particular the complexity of the act and/or matter at hand and the procedural conduct of the person concerned. In the author’s case, the complexity stems from the existence of two sets of proceedings, one criminal and the other administrative. The State party also maintains that the author’s conduct had an impact on the duration of the proceedings because (a) he failed to inform the authorities, at the outset, of the persecution that prompted him to flee his country; (b) he used his asylum application to avoid the effects of the criminal proceedings instituted against him; and (c) he submitted unsuccessful applications for new hearings to seek reparation after the habeas corpus decision had already been handed down.

4.11With regard to the request for reparation, the State party submits that the jurisprudence of the Committee cited by the author refers to situations that are dissimilar. In the cases against Australia, the authors intended to apply for asylum in the country and were unable to legally contest their detention, whereas the author did not intend to be recognized as a refugee in Ecuador and was in fact able to contest his detention. The State party also considers that the reparation sought is not justified because: (a) it is not necessary to issue an apology as the author’s rights have not been violated; (b) with regard to the request for his criminal record to be expunged, the State party does not consider the arguments put forward to be factual as the author was able to find work and his criminal record did not restrict his ability to travel, as he demonstrated by travelling to Canada on 10 September 2013 (c) as to the guarantees of non-repetition, the State party states that it provides civil servants with training in order to prevent violations of asylum seekers’ rights; (d) with regard to the alleged material damage and loss of earnings sustained by the author, it considers that it has no reason to redress them as the author had no intention of staying in the country; (e) regarding the moral damage, it maintains that the author’s claims have no basis in fact and should not be redressed; and (f) as to psychological treatment, the State party provides free health services, and the author would have access to these if he were in Ecuador.

Author’s comments on the State party’s observations regarding admissibility and the merits

Admissibility

5.1On 25 September 2014, the author submitted his comments. He states that, despite explaining that he was a refugee upon arrival in the country, at the time of his arrest and in the hearings of 3 March, 10 May and 30 July 2010, his asylum request was not duly transmitted to the competent authorities, as required under article 8 of Decree No. 3301, which establishes that an asylum request submitted before any authority must be forwarded to the Ministry of Foreign Affairs. He also states that, although his asylum request had been logged by the competent authorities since 7 May 2010, he does not know what happened between then and October 2010, when the NGO assisted him in submitting it to the competent authorities.

5.2He asserts that he did not have to exhaust the remedies in the criminal proceedings. He argues that an appeal would have been futile, bearing in mind domestic judges’ interpretation of international refugee law, according to which refugee status is obtained only once it has been recognized by the State. Hence there was no point in appealing his conviction, given that it predated the decision recognizing his refugee status. In line with the Committee’s jurisprudence, the appeal in cassation and the request for a supervisory review are extraordinary remedies and thus did not need to be exhausted. He maintains that he could not have had recourse to the appeal in cassation because it can be used only when the contested sentence contravenes a rule, which he would have been unable to demonstrate, since the deadline for filing such an appeal was five days after the issuance of the sentence – in other words, 5 August 2010 – and his refugee status was not recognized until 14 October 2010. Lastly, the request for a supervisory review was not available to him, as his situation did not meet any of the six grounds established for submitting such a request.

5.3As to the argument that he did not appeal the habeas corpus decision, the author indicates that, under article 18 of the Organic Act on Jurisdictional Guarantees and Constitutional Oversight, judges have the discretionary power to grant redress in a habeas corpus decision or at a hearing convened after eight days from the date of the sentence, and that, as the time limit for appealing the habeas corpus decision was only three days, the remedy was not available to him. On 12 November 2010, eight days after the issuance of the sentence, the author requested a hearing on the subject of redress before the Pichincha Provincial Court of Justice, but the judge did not rule on the issue.

5.4He also asserts that the application for special protection measures was an appropriate remedy since it must be resolved within 30 days by the Constitutional Court, whereas an appeal against the Provincial Court decision of 22 November 2010 would have had to be lodged with the Administrative Court, which would not have issued a decision within a short time frame given its backlog of around 2,000 cases. He adds that, since decisions of the Constitutional Court take precedence over the decisions of all other courts, including the Administrative Court, initiating parallel processes before both courts would have been futile.

Merits

5.5Bearing in mind the State party’s argument that the obligation to protect asylum‑seekers takes effect only once their refugee status has been recognized, the author considers it necessary to address the subject of obligations under international refugee law. He recalls that Ecuador has ratified the 1951 Convention and its 1967 Protocol and that the protection afforded thereunder – particularly in article 31 (1) of the Convention – applies to bona fide refugees, even before their refugee status has been recognized by the authorities of the country of refuge. Consequently, the State party had an obligation to offer such protection to him, at least from the moment he requested asylum, when he was arrested on 2 March 2010. He also refers to article 2 (1) of the Covenant, recalling that, which applies to persons under the State party’s jurisdiction, including him. This obligation is confirmed by the incorporation in domestic law of international refugee and human rights standards.

5.6As a result, his detention, which violated the 1951 Convention, was arbitrary and thus also violated article 9 of the Covenant. Pursuant to article 9 (1), detention must be in accordance with the law and must not be arbitrary. He states that his detention may appear legal, bearing in mind that article 343 of the Criminal Code establishes that using a false passport is an offence; however, his detention was not in conformity with international legal provisions governing refugees and was thus not in line with domestic legislation, which incorporates those provisions. Arbitrariness includes situations in which detention is inappropriate, unjust, unpredictable or disproportionate. Given that the Covenant contains no explicit reference to refugees, article 5 (2) of the Covenant must be taken into account in analyses of arbitrariness. The author argues that it can be inferred from this article that detention is arbitrary if it violates the international instruments to which the State is a party, including the 1951 Convention and its Protocol.

5.7In this connection, article 31 (1) of the 1951 Convention should have been applied to the author. This provision has been interpreted broadly. For example, the words “coming directly from a territory where their life or freedom was threatened” have been taken to mean that, if a refugee spends a short time in a country before reaching the country of refuge, his or her situation is understood as fulfilling the requirements of the article. Consequently, although the author spent 10 days in Brazil and 2 in Peru before arriving in Ecuador, he should still be considered to have come “directly” from Guinea. The author maintains that the duty of refugees to present themselves “without delay to the authorities” cannot be considered an immediate duty in the case of bona fide refugees, and consideration must be given to the refugee’s limitations, including with regard to language, a lack of trust in the authorities and the effects of stress. To conclude, the fact that he was detained and convicted constituted a violation of article 31 (1) of the 1951 Convention and, by extension, his detention was arbitrary under article 9 (1) of the Covenant.

5.8Concerning the violation of article 9 (4), he indicates that he is not claiming that the remedy of habeas corpus is an inappropriate remedy in general, but that, in his case, it was not available in respect of his detention, because of the domestic courts’ erroneous interpretation of when refugee status is acquired. According to this interpretation, his detention would have been considered legal by the courts, and the remedy of habeas corpus would not have been effective. He mentions Bakhtiyari v. Australia, in which the Committee indicated that, since the detention of certain asylum seekers was legal under Australian law, a habeas corpus application would not have been an effective remedy in challenging their detention. He adds that the judicial decisions in his case confirm that the remedy in question would not have been effective, as his detention was deemed illegal only after his refugee status had been recognized.

5.9With regard to article 9 (5), the author refers to the Views, in which the Committee, having declared that article 9 (1) to (4) of the Covenant had been violated, deemed it appropriate to deal with the issue of compensation. He reiterates that, although his right to redress was enshrined in domestic law, the authorities refused to grant it to him. Moreover, he reiterates his claim for redress and requests the State party to incorporate the principles of international refugee law in its legal order, to take the necessary steps to render habeas corpus an adequate remedy in similar cases, and to develop courses on international refugee law for public officials, including judges.

State party’s additional observations

6.1On 1 February and 6 April 2016, the State party submitted additional observations. Regarding the exception to the requirement of exhaustion of domestic remedies on account of the remedies being pointless, it indicates that the author does not specify to which remedies he is referring and reiterates that he did not exhaust the remedies of appeal, appeal in cassation and request for a supervisory review.

6.2It reiterates that the author has failed to substantiate his allegations of violations of his rights under articles 2 (1) and (3), and 9 (1), (4) and (5) of the Covenant, and indicates that his detention was not arbitrary, since it was in accordance with the law and met the requirements of predictability, reasonableness and proportionality. In addition, establishing whether the recognition of refugee status makes a person a refugee or simply declares him or her to be one is irrelevant, since the author did not make that status known to the authorities, which thus did not have a responsibility to recognize it motu proprio.

6.3The State party reiterates its arguments concerning redress and adds that there is no evidence to support a claim in that regard. As to guarantees of non-repetition, it asserts that both the Constitution and relevant laws, in particular Decrees Nos. 3301 and 1182, provide for the right to asylum.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering any claim contained in a communication, the Human Rights Committee must decide, in accordance with rule 97 of its rules of procedure, whether the case is admissible under the Optional Protocol.

7.2As required under article 5 (2) (a) of the Optional Protocol, the Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement.

7.3The Committee takes note of the State party’s argument that the author failed to exhaust the remedies available in the context of the criminal proceedings against him, since he did not appeal the judgment of 30 July 2010, nor did he file an appeal in cassation or a request for a supervisory review, which, despite being of an extraordinary character, were effective because they made it possible to check for possible miscarriages of justice. The Committee also notes the author’s claim that he had no reason to appeal his conviction, as doing so would have been futile in the light of the domestic judges’ interpretation of international refugee law, bearing in mind that the conviction predated the decision recognizing his refugee status. The Committee further takes note of the author’s allegation that neither the appeal in cassation nor the request for a supervisory review had to be exhausted, since they are extraordinary remedies. The Committee observes that the author does not question the criminal proceedings themselves, but his detention, which he considers to be arbitrary. The Committee also notes that the State party has provided no information on what impact the remedies available during the criminal proceedings would have had on the detention. It notes that, on 28 October 2010, the author filed a habeas corpus application before the Pichincha Provincial Court of Justice on the basis of the recognition of his refugee status on 14 October 2010 and that he was freed five days later. According to the information available, an appeal against the conviction would not have put an end to the detention, as the author’s refugee status was recognized after the deadline for filing one. The Committee also notes that the appeal in cassation and the request for a supervisory review are extraordinary remedies, as acknowledged by the State party. The Committee further notes that the deadline for lodging an appeal in cassation expired – on 5 August 2010 – before the recognition of the author’s refugee status – on 14 October 2010 – and that the author’s situation did not meet any of the grounds established for submitting a request for a supervisory review. The Committee therefore considers that the author exhausted all available domestic remedies. In the light of the foregoing, the Committee declares this part of the communication admissible under article 5 (2) (b) of the Optional Protocol.

7.4The Committee takes note of the State party’s argument that the author did not avail himself of the remedies available to challenge the habeas corpus decision, in particular his right to an appeal, which could have led to a judgment on the issue of redress. The Committee also notes the author’s claim that an appeal against the habeas corpus decision was not available, since the deadline for filing one – within three days – was shorter than the deadline established for requesting a hearing on redress, namely eight days from the issuance of the sentence. The Committee observes that, pursuant to article 18 of the Organic Act on Jurisdictional Guarantees and Constitutional Oversight, the author requested a hearing before the Pichincha Provincial Court of Justice to determine what redress he should be granted for having been detained arbitrarily, and that this request was rejected on 22 November 2010. It also notes that, on 19 November 2010, the author filed an application for special protection measures with the same aim, and that this was rejected by the Constitutional Court on 17 April 2012. Moreover, it notes that, for the same purpose, the author filed a petition for clarification and prorogation with the Court, which rejected the petition on 14 March 2013 and reiterated the reasoning followed in its decision of 17 April 2012. In the light of the information supplied, and in the absence of information from the State party on the extent to which an appeal against the habeas corpus decision could have changed the position on redress adopted by the authorities, including the Constitutional Court, at different stages of the proceedings, the Committee concludes that, in accordance with article 5 (2) (b) of the Optional Protocol, there is no obstacle to the admissibility of the communication arising from this part of the communication.

7.5The Committee considers that the author has sufficiently substantiated his claims under article 9 (1), (4) and (5), and article 9 (1) read in conjunction with article 2 (3), concerning his arbitrary detention, the absence of an effective remedy to challenge his detention and the delay in recognizing his refugee status, releasing him from detention and responding to his petition for clarification and prorogation filed with the Constitutional Court. Accordingly, it declares the communication to be admissible and proceeds to its consideration on the merits.

Consideration of the merits

8.1The Committee has considered the present communication in the light of all the information made available to it by the parties, as required under article 5 (1) of the Optional Protocol.

8.2The Committee notes the author’s claim that his detention was illegal and arbitrary under article 9 (1) of the Covenant, in that it infringed national and international provisions whereby protection standards, in particular article 31 (1) of the 1951 Convention, are applicable to asylum seekers, even before their refugee status has been recognized by the authorities of the country of refuge, given the declaratory nature of such recognition. It also notes that, as a result, the author considers that the State party had an obligation to protect him, at least from the moment he requested asylum, when he was arrested on 2 March 2010. In addition, the Committee notes the author’s claim that he tried to request asylum before the authorities on various occasions, but that his attempts were in vain because of the difficulties he had in communicating in Spanish and in identifying the competent authorities, which he mistrusted, in the light of his experiences in Guinea. The Committee also notes the author’s allegation that his detention satisfies the conditions for being regarded as arbitrary in line with the Committee’s jurisprudence, in which arbitrary detention of a similar kind is defined as inappropriate, unjust, unpredictable or disproportionate. On the other hand, the Committee notes the State party’s argument that the detention met all national and international standards and that the author’s rights were not violated, bearing in mind that his detention was consistent with article 343 of the Criminal Code and fulfilled the requirements of predictability, reasonableness and proportionality. Furthermore, the Committee notes the State party’s assertion that the author’s detention was neither illegal nor arbitrary because, although the treaties that it had ratified required it to offer protection to the author as an asylum-seeker, he had failed to notify the authorities in a timely manner that he was at risk and faced persecution, so as to enable them to take the necessary measures. The Committee notes that, according to the State party, the author spent approximately 30 days in Ecuador without requesting asylum, and requested asylum only after being detained, from which it concludes that his intention was not to remain in Ecuador as a refugee.

8.3The Committee notes the author’s assertion that he expressed his intention to request asylum to the authorities on several occasions: at the time of his arrest, on 2 March (see para. 2.5), and in the hearings of 3 March (see para. 2.5), 10 May (see para. 2.5) and 30 July 2010 (see para. 2.6). The Committee observes that the records of the hearings confirm it. The Committee also observes that the State party does not explain why, once the courts had been informed by the author of the circumstances in which he had left his country and of his intention to seek asylum, they did not pass on this information to the authorities responsible for receiving asylum applications.

8.4The Committee recalls that, pursuant to article 31 (1) of the 1951 Convention, States parties cannot impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened, enter or are present in their territory without authorization, provided that they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

8.5The Committee also recalls that the notion of “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability, and due process of law. Asylum-seekers who unlawfully enter a State party’s territory may be detained for a brief initial period in order to document their entry, record their claims and determine their identity if it is in doubt. To detain them further while their claims are being resolved would be arbitrary absent particular reasons specific to the individual, such as an individualized likelihood of absconding, which could pose a risk to others, or risk of acts against national security.

8.6The Committee observes that the author was held in pretrial detention from 2 March to 30 July 2010 and that he was subsequently detained as a convict from 31 July to 4 November 2010, when he was released as a result of an application for habeas corpus that he had submitted once his refugee status had been recognized by the authorities. The Committee considers that, regardless of whether the detention was based on a violation of the Criminal Code, the State party has not demonstrated that it considered less invasive means of ensuring the author’s presence at his trial than depriving him of his liberty, or that such alternatives did not effectively exist in his case, such as reporting obligations, sureties or other conditions. The Committee notes that the State party has also failed to demonstrate that it took the necessary steps to protect the author as a refugee – a status that was later recognized by the competent national authority – even though he informed the authorities of his intention to seek asylum. For these reasons, the Committee concludes that the author’s detention was arbitrary and contrary to article 9 (1) of the Covenant.

8.7The Committee notes the author’s claims regarding a violation of article 9 (4) of the Covenant, based on the fact that, although he was arrested on 2 March 2010, his refugee status was not recognized until 14 October, resulting in his detention for 227 days without any means of instituting habeas corpus proceedings, bearing in mind that invoking the remedy prior to his recognition as a refugee would have proved ineffective. The Committee further notes the author’s claim that the same article was violated because of the delay in responding to the petition for clarification and prorogation filed with the Constitutional Court on 31 August 2012. The Committee notes that the Court rejected the petition on 14 March 2013, seven months after it had been filed. It also notes the State party’s assertion that there was no unreasonable delay in deciding on the asylum application, bearing in mind that the author’s conduct had an impact on the time taken, given his deliberate choice not to inform the authorities of the persecution that he had suffered in his country, his use of the asylum claim as a tool for avoiding the effects of the criminal proceedings against him and his futile requests for hearings to debate matters of redress.

8.8The Committee notes that the author was arrested on 2 March 2010; that, the following day, he was brought before the judge of the Twenty-second Criminal Trial Court, who launched the investigation and ordered his pretrial detention; that, on 17 May, the judge issued a decision to convene a trial and confirmed the pretrial detention; and that the author’s sentence to 1 year’s imprisonment was issued on 30 July 2010. The Committee also observes that the author was released on 4 November 2010 as a result of an application for habeas corpus that had been submitted on 28 October, following the recognition of his refugee status on 14 October 2010. The Committee takes note of the State party’s argument that the legal system provides for effective remedies against any arbitrary deprivation of liberty, and that proof thereof lies in the fact that, once the author had filed a petition for habeas corpus, he was freed immediately. The Committee recalls its jurisprudence that judicial review of the lawfulness of detention under article 9 (4) of the Covenant is not limited to mere compliance of the detention with domestic law, but must include the possibility of ordering release if the detention is incompatible with the requirements of the Covenant, in particular those of article 9 (1). In the present case, the Committee observes that, from the information provided by the State party, it cannot be concluded that the remedies to which it refers would have enabled a review of the lawfulness of the author’s detention, with the possibility of ordering his release, prior to the recognition of his refugee status. The Committee therefore considers that the facts in the present case disclose a violation of article 9 (4) of the Covenant.

8.9The Committee notes the author’s allegation that, although domestic law provides for the right to redress, the authorities refused to grant him adequate reparation, inasmuch as his release does not constitute an adequate or sufficient form of redress. It also notes the State party’s argument that the author’s release is sufficient redress. The Committee recalls that, under article 9 (5) of the Covenant, anyone who has been the victim of unlawful arrest or detention has an enforceable right to compensation. As expressed by the Committee in its general comment No. 35, article 9 (5) obliges States parties to establish the legal framework within which compensation can be afforded to victims, as a matter of enforceable right and not as a matter of grace or discretion. It further recalls that the remedy must not exist merely in theory, but must operate effectively, and that payment must be made within a reasonable period of time.

8.10The Committee notes that article 11 (9) of the Constitution stipulates that the State has an obligation “to redress violations of individuals’ rights attributable to […] the actions or omissions of its civil servants and public employees in the performance of their duties” and that article 18 of the Organic Act on Jurisdictional Guarantees and Constitutional Oversight guarantees full redress to persons whose rights have been violated. The Committee notes, however, that both the Pichincha Provincial Court of Justice, in its decision of 22November 2010, and the Constitutional Court, in its decision of 17 April 2012, rejected the author’s claims for redress, thereby failing to give effect to the aforementioned domestic provisions and breaching the State party’s international obligations under article 9 (5) of the Covenant, with the result that the author did not have a chance to obtain redress for the harm caused by his arbitrary detention, as provided for by that article. The Committee also notes the State party’s argument that there is no need to issue an apology, given that the author’s rights have not been violated; that there is no need to expunge his criminal record, since he has not demonstrated that it has affected his ability to work or travel; that guarantees of non‑repetition are provided through the training on asylum given to public officials; that there is no need to offer redress to the author because he did not intend to remain in Ecuador or work there; and that if the author required psychological treatment, he could receive it free of charge if he were in Ecuador. Nevertheless, given the violation of the author’s rights under article 9 (1) and (4) of the Covenant, the Committee considers that the fact that the author did not intend to seek asylum in Ecuador and that he is no longer in the country cannot undermine his right to receive adequate compensation, in accordance with article 9 (5) of the Covenant. The Committee therefore concludes that, in the circumstances of the case, the State party’s refusal to grant the author compensation constitutes a violation of article 9 (5) of the Covenant.

8.11Having found a violation of article 9 (1), (4) and (5) of the Covenant, the Committee will not consider the allegation of a violation of article 9 (1) read in conjunction with article 2 (3) of the Covenant.

9.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the information set out above points to a violation by the State party of article 9 (1), (4) and (5) of the Covenant.

10.Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This means that it must offer full reparation to persons whose rights under the Covenant have been violated. Hence, the State party must be obliged to provide the author with full reparation, including financial compensation. It is also obliged to provide the author with an effective remedy, with the participation of his lawyer, including the review of his claim for redress, which must take into account this decision. In addition, the State party shall expunge the author’s criminal record. The State party is also under an obligation to take steps to prevent similar violations from occurring in the future. In this respect, the Committee reiterates that the State party must take the necessary measures, including the strengthening of institutional arrangements, to ensure that the rights enshrined in article 9 (1), (4) and (5) of the Covenant may be fully enjoyed in the State party, so that asylum seekers and refugees are not arbitrarily detained.

11.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure for all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when a violation has been established, the Committee wishes to receive from the State party, within 180 days, information concerning the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party.

Annex

[English only]

Individual opinion of Committee member José Manuel Santos Pais (dissenting)

1.I regret that I am not in a position to support the decision of the Committee, according to which Ecuador violated the author’s rights under article 9 (1), (4) and (5) of the Covenant. I consider that the author’s arguments are inconsistent and contradictory and that the Committee’s decision does not appear to have taken the court transcripts into due consideration.

2.In accordance with the facts as presented by the author, he had to flee his country, Guinea, travelling through Senegal, where he obtained, through a friend, a French passport and an airline ticket to Quito (para. 2.3 of the Committee’s Views). According to the court transcript, the author spent a few days in Sao Paulo, Brazil, and Lima, Peru, before travelling to Quito. He acknowledges, therefore, not having gone directly to Ecuador.

3.He claimed not to have been able, upon arrival in Ecuador, to explain his situation to the authorities or to apply for asylum and that he stayed there for 31 days without succeeding in contacting either the Office of the United Nations High Commissioner for Refugees (UNHCR) or the International Organization for Migration (IOM) (para 2.4). I believe that, since he is educated, he could have made himself understood had he wanted to, even without speaking Spanish, since written expressions relating to refugees are very similar in French and Spanish.

4.On 2 March 2010, the author was arrested on suspicion of using a fake passport at Quito airport as he was leaving the country. According to court transcript of 3 March 2010, he claimed to have come to Ecuador through Brazil and Peru, with the intention of travelling on to Canada. He was therefore considered by the authorities to be in transit and was detained to ensure his appearance to stand trial. On 10 May 2010, his pretrial detention was confirmed.

5.According to the court transcript of 17 May 2010, the author confirmed that he had not approached the authorities upon his arrival in Quito and reiterated his intention of going to Canada. No clear reference was made to his desire to apply for refugee status. On 17 May 2010, his pretrial detention was again confirmed.

6.The author acknowledged that he asked to be put in touch with UNHCR or IOM to submit an asylum application only after his arrest on 2 March 2010 (para 2.5), not upon his arrival in Ecuador. According to the court transcript of 30 July 2010, he stated his desire to apply for asylum for the first time before the judicial authorities on 3 March 2010, while still confirming his intention to travel to Canada, thus making his claim to refugee status unsubstantiated and contradictory. According to the transcript, the author made vague mention of a certificate from the Directorate General for Refugees, which stated that he should not be deported while his request for asylum was under consideration. He was convicted, on 30 July 2010, under article 343 of the Penal Code, to one year of imprisonment for using a fake passport.

7.It was only on 28 October 2010, when the author petitioned for his right to habeas corpus before the Provincial Court of Pichincha, that he referred, for the first time, to article 31 of the Convention relating to the Status of Refugees (para. 2.7). The Pichincha Court, in its judgment of 30 October 2010, acknowledged the existence of a document, dated 7 May 2010, from the Directorate General for Refugees, confirming an asylum request, which was granted on 14 October 2010. In its judgment, the Pichincha Court considered the author’s detention as unlawful only after that date. The author was therefore released on 4 November 2010 (para 2.7) and granted a refugee visa on 10 November 2010 (para 2.8).

8.On 12 November 2010, the author asked for reparations for his imprisonment. However, in view of the fact that he did not claim that his detention was illegal and arbitrary when he was detained, his request was denied on 22 November 2010, owing to the fact that the unlawfulness of his detention started only after he was notified of his refugee status.

9.On 19 November 2010, the author brought an extraordinary protection action before the Constitutional Court, but his request was denied. According to the Constitutional Court judgment of 17 April 2012, the author did not present himself before the authorities immediately upon his arrival in Ecuador to request asylum, but did so only when he was attempting to leave the country, after having stayed 31 days. He also confirmed that he wanted to go to Canada. Unlike most asylum-seekers, he held a document, albeit a fake passport. Asylum first had to be granted by the Directorate General for Refugees, and it was only when it became effective that the Pichincha Court had ordered the immediate release of author. Regarding the reparation request, the Constitutional Court confirmed that the author had not submitted it along with his application for habeas corpus, but only later, on 12 November 2010, after the expiry of the eight-day deadline stipulated in the Organic Law of Judicial Guarantees and Constitutional Control.

10.I fully concur with the reasoning of the Constitutional Court and am of the view that the judicial authorities of Ecuador acted irreproachably. In my view, the reasoning of the Committee (para 8.3) does not reflect all of the elements in the court transcripts. Ecuador consistently refuted the author’s claims and there is no obligation for the judicial authorities to suspend criminal proceedings while a claim for refugee status is pending before the competent administrative authorities unless there is clear evidence that the two procedures are connected, which is not the case here.

11.Contrary to the Committee’s conclusion set out in paragraph 8.4, the author did not travel directly from Guinea to Ecuador and did not approach the authorities to apply for refugee status from the time of his entry, on 30 January 2010, until the day he attempted to leave the country, 2 March 2010. He consistently confirmed before the judicial authorities that he wanted to go to Canada and was using Ecuador as a transit country. Therefore, article 31 of the Convention relating to the Status of Refugees does not apply.

12.The author’s pretrial detention was therefore not arbitrary, since the judicial authorities justified it as necessary and adequate.

13.The author was convicted under article 343 of the Penal Code by competent criminal courts for using a fake passport, not because he entered Ecuador irregularly. He lawfully served his sentence until his refugee status was duly confirmed by competent authorities and he was subsequently released pursuant to a court order once he was granted asylum on 14 October 2010. He invoked the Convention relating to the Status of Refugees only on 27 October 2010, when applying for habeas corpus, three months after his conviction.

14.The author should not be granted full reparation, contrary to the Committee’s Views (paras. 8.9 and 8.10), given that he did not invoke, either during his detention or during his trial, that his detention was illegal or arbitrary. That argument was invoked only after he was granted refugee status. Furthermore, he did not present his request for compensation within the prescribed time limit (see para. 9 above). I thus consider that Ecuador did not violate the author’s rights under article 9 (1), (4) and (5) of the Covenant.