Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communicationNo. 2854/2016 * , **

Communication submitted by :Islam Johar (represented by counsel, Carl K. Riber-Mohn)

Alleged victim :The author

State party :Norway

Date of communication :6 April 2016 (initial submission)

Document references :Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 15 November 2016 (not issued in document form)

Date of adoption of Views :7 July 2021

Subject matter :Arbitrary detention

Procedural issue :Exhaustion of domestic remedies

Substantive issue :Liberty and security of person

Article of the Covenant :9 (3)

Article of the Optional Protocol :5 (2) (b)

1.The author of the communication is Islam Johar, a national of Norway born in 1980. He claims that the State party has violated his rights under article 9 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 arrested on Thursday, 4 July 2013, at 9.45 a.m. and placed in police custody at 10.14 a.m., suspected of a drug-related crime, for which he was subsequently charged, convicted and sentenced. The author was brought before a judge at Oslo District Court on Saturday, 6 July 2013, at 2 p.m., which is 52 hours and 15 minutes after his arrest. The author claims that the State party violated the 48-hour rule established by the Committee pursuant to article 9 (3) of the Covenant.

2.2On 6 July 2013, at 2 p.m., a hearing was held in the Oslo District Court. The Court ruled that the author was to be remanded in custody until otherwise decided by the prosecuting authority or the Court, but for no longer than until 3 August 2013. The author was subjected to a ban on correspondence and visits throughout that period and to full isolation until 20 July 2013. The Court considered that the investigation was still in its initial phase and that it was important that the author was not given an opportunity to communicate with other individuals potentially involved in the case. On 8 July 2013, the author was transferred to Oslo Prison, after having been detained in an isolation cell for four days.

2.3On 15 October 2014, the author was sentenced to imprisonment for four years and 10 months for the storage of a significant quantity of amphetamine. The author appealed the decision. On 24 April 2015, the Borgarting Court of Appeal confirmed the Oslo District Court’s judgment.

2.4The author filed an appeal to the Supreme Court against the sentence, arguing that it was too strict, that there was no legal authority for the four days he had spent in full isolation and that he had not been brought before a judge by the 48-hour deadline, in contravention of international human rights conventions. On 21 October 2015, the Court rejected the author’s claims and confirmed his sentence.

Complaint

3.1The author claims that the State party failed to provide a justifiable reason for the delay in bringing him before a judge, in violation of article 9 (3) of the Covenant. He believes that his rights were violated, even though legislation in Norway allows for detention of 72 hours before a person must be brought before a judge. The author was brought before a judge 52 hours and 15 minutes after he was detained and placed in solitary confinement. He claims that there was no reason for not bringing him before a judge earlier.

3.2The author refers to Kovsh v. Belarus, arguing that, according to the Committee, the time limit should be determined based on the individual case and that detention that goes beyond 48 hours requires special justification. The author also refers to Human Rights Committee general comment No. 35 (2014), paragraph 33, and recalls that “any delay longer than 48 hours must remain absolutely exceptional and be justified under the circumstances”. According to the author, there was no sufficient reason to justify bringing him before a judge about 52 hours and 15 minutes after his arrest. He states that a country such as Norway in particular must fulfil its international obligations and not use arguments about convenience to circumvent important political rights as set out in the general comments of the Committee.

State party’s observations on admissibility and the merits

4.1In its observations dated 15 May 2017, the State party considers that there is no reason to challenge the admissibility of the communication.

4.2The State party recalls the facts and points out that the author was arrested and searched on suspicion of storing a considerable quantity of narcotics. The State party argues that the arrest was deemed necessary due to fears that the author would evade justice and that there was an imminent risk that he would interfere with evidence in the case. On 4 July 2013, at 9.45 a.m., the author was arrested and placed in police custody in Oslo at 10.14 a.m. On the same day, at 4 p.m., the author talked to his counsel on the telephone. On Friday, 5 July 2013, from 10.10 a.m. to 2.28 p.m., the author was interrogated by the police, at the same time as another suspect, B. On Saturday, 6 July 2013, at 10.20 a.m. (48 hours and 35 minutes after his arrest), the author was brought from the police detention centre to Oslo District Court, where he was placed in a holding cell until the judicial hearing, which commenced at 2 p.m. The District Court decided to ban communication by and visits for the author until 20 July 2013 in order to prevent him from communicating with the co-accused or other persons involved in the case and affecting the investigation. The ruling was not appealed. The author was later found guilty of storing drugs by the District Court and sentenced to four years and 10 months of imprisonment, which was confirmed by the Borgarting Court of Appeal and by the Norwegian Supreme Court in its judgment of 21 October 2015.

4.3The State party recalls that the Supreme Court, in its judgment dated 21 October 2015, addressed the question of the timeline from the arrest of the author to the judicial hearing on custody. The Supreme Court held that sufficient grounds had been provided for exceeding the 48-hour rule and concluded that there had been no violation of article 9 (3) of the Covenant.

4.4The State party refers to its domestic law, section 183 of the Criminal Procedure Act, which states that the time limit for bringing an arrested person whom the prosecuting authority wishes to detain before a judge is as soon as possible and not later than on the third day following the arrest. This wording was amended by the Act of 28 June 2002 No. 55, on the basis of a wish to introduce an absolute time limit and on the assumption that, by being able to keep suspects in custody for up to three days, the total use of custody during the investigation would decrease. Several factors could contribute to this: for instance, the police would have sufficient time to investigate and therefore there would be no need for custody (e.g. the risk of interference with evidence would diminish) or a more thorough investigation would entail a better factual basis for the district courts to evaluate the conditions for custody, thereby leading to shorter custody periods granted or more persons being released. This rationale should be understood in the light of the strict conditions for the use of custody under Norwegian law, where two minimum conditions apply: (a) the person is, with just cause (i.e. more than 50 per cent probability), suspected of a crime that is punishable by imprisonment for a term exceeding six months; and (b) there is sufficient reason to use custody and it would not be a disproportionate response in view of the nature of the case and other circumstances. Further, at least one of the following additional conditions must be fulfilled: (a) there is reason to believe that the person will evade justice; (b) there is an imminent risk that the person will interfere with evidence in the case, e.g. by removing evidence or influencing witnesses or accomplices; and (c) it is deemed necessary in order to prevent the person from committing a criminal act punishable by imprisonment for a term exceeding six months.

4.5With regard to article 9 (3) of the Covenant, the State party recalls that the Covenant, and other international human rights treaties, shall have force as Norwegian law insofar as they are binding for Norway and shall take precedence over any other legislative provisions that conflict with them. Thus, it is well established that the time limit that follows from section 183 of the Criminal Procedure Act must be construed in accordance with article 9 (3) of the Covenant and that the obligations under the Covenant will take precedence over the Criminal Procedure Act in the event of conflict of norms. As to the interpretation of article 9 (3), the Supreme Court has held that views from the Committee shall carry “considerable weight” as sources of law when interpreting not only the Covenant but also domestic legal provisions. Thus, the Supreme Court held in its judgment regarding the author that “the time that lapses should only exceptionally exceed 48 hours and only if this is justified under the circumstances”. The deadline is based on the Committee’s consideration that 48 hours is normally sufficient to transport the apprehended person and prepare the remand hearing. The Supreme Court’s view entails that the general rule for the time limit to bring an arrested person before a judge under Norwegian law is aligned with general comment No. 35 (2014), i.e. 48 hours. The State party is aware of the possible tension in the wording of section 183 of the Criminal Procedure Act, but points out that several factors mitigate the effect of this possible tension: (a) the term “as soon as possible” entails that it is not always necessary to wait until the end of the absolute limit; (b) legal players are familiar with the need to read traditional Norwegian legal sources in the light of rules set forth in international sources; (c) the legislator has emphasized the need for the courts to ensure compliance with international sources, including the Covenant; and (d) developments under the Covenant have been continuously monitored by the Director General of Public Prosecutions.

4.6The State party recalls that the Committee has, on numerous occasions, expressed its views on the interpretation of the “promptly” criterion that stems from article 9 (3). According to the Committee’s jurisprudence, detention of 50 hours and 73 hours were not considered as a violation of article 9 (3). Gradually, the Committee added to the “not exceed a few days” doctrine a recommendation that the period should not exceed 48 hours, which was later included in general comment No. 35 (2014). Firstly, the State party argues that the question arises as to whether the wording “absolutely exceptional” is a qualitative measure in each case, or rather a quantitative measure addressed to States parties as such, i.e. that: (a) the number of delayed judicial hearings in that State must be relatively few; and (b) each case must be justified under the circumstances. The State party also points out that the facts of the present communication occurred in 2013, prior to the adoption of general comment No. 35 (2014) in December 2014. Secondly, the State party argues that the Committee has not elaborated upon the application of the exception to the 48-hour rule in a case similar to the present communication: either the time in detention exceeded the 48-hour rule by a significant margin, the person was never brought before a judge prior to the trial and/or the State party in question did not provide any or provided clearly unsatisfactory reasons for the delay.

4.7In the State party’s view, the Supreme Court of Norway took the correct starting point for that assessment of the 48-hour rule. The State party notes that the risk of ill-treatment by law enforcement officials while a person is held in police custody is a significant motive underlying the 48-hour rule. According to the State party, it may be relevant, at least in borderline cases, to consider whether the arrested person had access to counsel while in custody. The time that the person is taken out of police custody and brought to the courthouse may be a factor, as the risk of ill-treatment by law enforcement officials in the courthouse is significantly lower, and even more so if the person meets his or her counsel at the courthouse. The State party suggests that the Committee may build upon European Court of Human Rights case law that has held that the initial review by a judge must take place within a maximum of four days after the arrest. The State party does not argue that the Committee should align the general rule under the Covenant with that of the European Court of Human Rights, but suggests that the Committee, when operationalizing the exception from the 48-hour rule under the Covenant, take into consideration and build upon the extensive case law of the Court regarding the promptness criteria.

4.8The State party is of the opinion that the author has not been subjected to a violation of article 9 (3) of the Covenant. The delay in question (four hours and 15 minutes) is relatively marginal and the author was indeed brought before a judge on the second day after his arrest. The petition for his arrest had been sent to the District Court the day before. The author was taken out of police custody and brought to the District Court 48 hours and 35 minutes after his arrest. The author talked to his counsel on the day of the arrest and the day after, and he met his counsel again at the courthouse in connection with the judicial hearing. In the State party’s view, it is evident from the facts that this was a complex case, involving a serious crime and a co-accused, and that a broader view was necessary to investigate whether the case could be part of a bigger criminal operation. The State party submits that the investigation progressed adequately in the relevant period. The time was used effectively to clarify the reasons that the District Court invoked to keep the author in custody further and to gather information relevant for the subsequent investigation. In its ruling on custody, the District Court underlined that the case was clearly in its initial phase and that comprehensive investigations remained to be undertaken. The complexity of the case required the police to prepare thoroughly for the interrogation, including by studying the surveillance reports. After the interrogation, a certain time was also required to analyse and compare the information gathered from both interrogations, and subsequently to incorporate the reasoning for custody into the petition to the District Court. As for the time for the judicial hearing on Saturday, 6 July 2013, it should be noted that the judge uses the time earlier in the day to prepare for judicial hearings. As was done in this case, the case documents and the petition from the prosecuting authority are normally sent to the court the day before the hearing. On this note, reference is made to the strict conditions of detention under Norwegian law, including a requirement of just cause, a minimum of one additional criteria (in this case an imminent risk of interference with any evidence in the case) and the requirement that detention should not be a disproportionate measure. In particular in complex cases such as the present one, the judge must necessarily be given sufficient time to prepare for the hearing in order to evaluate whether the conditions for detention are fulfilled.

4.9Consequently, the State party is of the view that the minor deviation from the 48-hour rule that occurred in this case is justified under the circumstances and does not constitute a violation of article 9 (3) of the Covenant.

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

5.1On 28 June 2018, the author submitted his comments on the State party’s observations. The author submits that it stems from the Committee’s jurisprudence and general comment No. 35 (2014) that any delay longer than 48 hours has to be absolutely exceptional and justified under the circumstances. This applies even if the State party claims that there is no risk of ill-treatment.

5.2The author argues that the State party did not attempt to show any absolutely exceptional reasons for the delay and has not shown that the delay was justified under the circumstances.

5.3The author points out that, according to the Supreme Court’s ruling, one of the reasons that the delay was so great was the fact that Oslo District Court schedules initial remand hearings after lunch, meaning that it was not possible to bring him before the court much earlier on the same day. According to the author, that is not a reason that could be qualified as absolutely exceptional and justified under the circumstances. If the trivialities of the scheduling of lunch breaks are made to take precedence and to justify breaches of the 48-hour rule, the 48-hour rule would be rendered entirely nugatory. The author refers to the Committee’s case law in Fillastre and Bizouarn v. Bolivia, in which the serious budgetary constraints of a country in a rather different economic situation than that of Norway were not held to justify a breach of the rule.

5.4The author submits that the State party cannot argue that, in spite of the 48-hour rule having been breached in principle, there was no physical ill-treatment, so therefore there is no breach after all. The author argues that the State party undermines the fact that “longer detention in the custody of law enforcement officials without judicial control unnecessarily increases the risk of ill-treatment”. The author refers to the communication relating toKovsh v. Belarus, in which the Committee clarified that a time limit must not be exceeded.

5.5The author submits that the State party tends to argue that even if it recognizes the Committee’s understanding of article 9 (3) on this point, including the importance and desirability of a general rule of 48 hours on a global basis, the 48-hour rule does not apply to Norway or in this case. The author recalls that, in his complaint, he stated thata country such as Norway in particular must fulfil its international obligations and not use arguments about convenience to circumvent important political rights set out by the Committee in its general comments.

5.6The author argues that, even if the State party submits that the author talked to his counsel on the day of the arrest and after he was brought to the District Court, he was still in police custody. Moreover, it does not matter whether the author had spoken to his lawyer at the time.

5.7The author submits that, according to general comment No. 35 (2014), some States fix time limits shorter than 48 hours, whereas the State party fixed it at 48 hours, before an extension to 76 hours, adopted in 2002. Thus, exceptions to the 48-hour rule have become more of a rule than an exception. Even if the aim of the State party was to reduce the average time in police custody, 76 hours have now become the rule with further exceptions for extensions. The 2002 extension was to have been accompanied by close and continuous review and assessment, which have not taken place as intended. Rather, there have been more delays, year after year, in breach of the new extended time limit. This has been criticized by the Norwegian Association of Judges, in 2011, the Norwegian Parliamentary Ombudsman and several United Nations and Council of Europe supervisory organs.

5.8The author argues that his case is one of many routine narcotics cases as it concerned less than 5 kilos of amphetamine and other drugs found at his residence, and cannot be qualified as complex.

5.9As to the State party’s argument that the facts occurred after the adoption of general comment No. 35 (2014), the author points out that the Supreme Court judgment of 2015 does not raise this point. Moreover, the case law of the Committeewas well established long before the facts or court decisions of the complaint.

5.10The author requires the Committee to clarify the consequences of a delay longer than 48 hours that is not absolutely exceptional or justified under the circumstances. The author submits that the Committee should clarify to the State party that there is a duty to release and compensate if a delay over 48 hours occurs.

State party’s additional observations

6.1On 29 November 2018, the State party submitted further observations. With regard to its domestic law, the State party points out that it is not correct to assert that the State party “fixed the time limit to 48 hours, before an extension to 76 hours, adopted in 2002”. The State party reiterates that the previous wording of Norwegian law was that a detained person should be brought before the District Court “as soon as possible and as far as possible on the day after the arrest”. The deadline was not absolute, and exceptions could be made if it was impossible to do it the day after the arrest, and when the deadline expired on a Saturday or a public holiday. The State party further argues that it is not correct to assert that 76 hours is the rule under Norwegian law. Rather, section 183 of the Criminal Procedure Act sets an absolute time limit of three days after the arrest. Within this time frame, authorities are obliged to present the arrested person as soon as possible. Extensions beyond three days are never allowed. The general rule in Norway is aligned with the views of the Committee contained in general comment No. 35 (2014), i.e. a 48-hour rule with room for deviations if justified under the circumstances, but never beyond the absolute time limit of three days.

6.2The State party rejects the assertion of the author that there have been more delays, year after year. The State party is not familiar with such a practice and the counsel’s argument is not supported by any statistics or relevant case law examples. The State party further argues that, contrary to the author’s assertion, a follow-up review of the 2002 amendment to the Criminal Procedure Act was conducted and sent for consultation in 2010. No amendments have been adopted yet, but this has to be viewed in connection with the fact that Norwegian legislation is applied in accordance with the Committee’s views contained in general comment No. 35 (2014). On 21 June 2018, a consultation paper regarding the question of amending the wording of section 183 was published, with two alternative proposals: (a) as soon as possible and at the latest the second day after the arrest; and (b) as soon as possible and at the latest 48 hours after the arrest, or later if required (i.e. justified under the circumstances (see, inter alia the Committee’s views in general comment No. 35 (2014)), but never later than the third day after the arrest. The proposals are under consideration at the Ministry of Justice.

6.3The State party points out that the central question of the present communication is the understanding of exceptions to the 48-hour rule, not the viability of the general rule as such. As far as the State party is aware, it is the first communication before the Committee in which the impugned passing of time exceeding the general rule is a matter of hours, not days, and in which the State party in question has provided adequate reasons for the delay. In that regard, the State party argues that the wording of article 9 (3) must be assessed on a case-by-case basis, not only that exceeding 48 hours must be justified under the circumstances, but that the reasons invoked for the time used will be scrutinized more thoroughly the longer the time. It is not obvious from the wording that the justification should be subject to significantly stricter conditions at the exact moment that the period exceeds 48 hours. The State party reiterates that it supports the general 48-hour rule, but points out that the Committee should take this starting point into consideration when applying the exception from the 48-hour rule to the facts of this case.

6.4The State party disagrees with the counsel’s comment that the exact wording of general comment No. 35 (2014) stemmed from the view of the Committee that was established long before the facts or court decisions of the complaint. In Kovsh v. Belarus, the wording used is “any longer period of delay would require special justification” and there is no reference to the fact that such delays must remain “absolutely exceptional”, which is the term used in general comment No. 35 (2014). In any case, in the State party’s view, the criteria in general comment No. 35 (2014) do not imply a stricter threshold for exceptions from the 48-hour rule than the threshold set forth by the Committee prior to the adoption of general comment No. 35 (2014). The State party reiterates its argument that the “absolutely exceptional” criterion cannot be understood as a qualitative requirement pertaining to the circumstances of a particular case that may or may not justify an exception to the 48-hour rule, but rather as a quantitative measure that sets a strict limit for how often a State party may be exempt from the 48-hour rule. In the State party’s view, it is not required that the circumstances in any particular case are inherently “exceptional” in themselves. It is sufficient that the circumstances are such that the time exceeding 48 hours is justified, a question that will vary with the length of the time exceeding 48 hours. If absolutely exceptional circumstances were required in every case of detention exceeding 48 hours, no matter how long or how short, the meaning of the term “promptly” would no longer be determined on a case-by-case basis.

6.5The State party reiterates that the present case involved a serious crime and a co-accused, and does not agree that the facts of the case amount to a “routine narcotics case”, as argued by the author. Finally, the State party reiterates that the judge uses the time earlier in the day to prepare for the judicial hearing, in particular in complex cases such as the present one, which cannot be characterized as “the trivialities of the scheduling of lunch breaks”, as argued by the author.

Author’s comments on the State party’s additional observations

7.1On 31 March 2019, the author submitted comments on the State party’s additional observations. The author reiterates that there are no exceptional grounds that justify a breach of article 9 (3) of the Covenant.

7.2The author argues that preparing for the judicial hearing in a complex case cannot possibly justify a breach of the 48-hour rule. The author points out that the argument of the State party seems to be that complexity increases the need to prepare for the hearing. In that case, it would mean that this is a general exception or extension and it is not clear how complexity in general could be a justification to the 48-hour rule. The author submits that the State party has not showed the relevance of the alleged complexity to the issue before the Committee.

7.3The author points out that the main issue brought before the Supreme Court was the reduction of the complainant’s sentence due to the four days he spent in full isolation in a police holding cell (“glattcelle”). The author adds that the State party tends to conceal its overuse of isolation from the Committee. In its judgment, the Supreme Court considered the four days of full isolation in a holding cell to be proportionate. The judge further admitted that, on a literal interpretation, the legislative provisions concerning isolation in prison did not apply to isolation in a police holding cell. The author stresses that his complaint is a classic case justifying a strict application of the 48-hour rule.

7.4The author argues that the criteria “absolutely exceptional” and “justified under the circumstances” are not alternative but cumulative. According to the author, complexity, the need to prepare for the hearing and scheduling cannot justify any breach of the 48-hour rule.

7.5With regard to the ongoing consultation on the 2002 amendment, the author recalls that the Norwegian Bar Association has requested that an express 48-hour rule be included in the Criminal Procedure Act and that a higher threshold for further delay than required is necessary in order to comply with article 9 and general comment No. 35 (2014). The author supports these requests.

7.6The author requests the Committee to clarify and restate the 48-hour rule and its exceptions in view of the present communication.

Issues and proceedings before the Committee

Consideration of admissibility

8.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the claim is admissible under the Optional Protocol.

8.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

8.3The Committee notes the author’s claim that he has exhausted all reasonable domestic remedies available to him. In the absence of any objection by the State party in that connection, the Committee considers that the requirements of article 5 (2) (b) of the Optional Protocol have been met.

8.4The Committee considers that the author has sufficiently substantiated, for the purposes of admissibility, his claim of violations of his rights under article 9 (3). The Committee declares this claim admissible and proceeds with its consideration of the merits.

Consideration of the merits

8.5The Committee has considered the communication in the light of all the information made available to it by the parties, as provided under article 5 (1) of the Optional Protocol.

8.6The Committee notes the author’s claim that his rights under article 9 (3) of the Covenant were violated, because from 4 July 2013 at 9.20 a.m., when he was initially arrested, to 6 July 2013, at 2 p.m., which is a total of 52 hours and 40 minutes, he was not brought before a judge. The Committee notes the author’s argument that the State party failed to provide a justifiable reason for a delay longer than 48 hours before he was brought to a judge, in violation of article 9 (3) of the Covenant.

8.7The Committee notes the State party’s argument that the delay in question (four hours and 15 minutes) is relatively marginal and that the author was indeed brought before a judge on the second day after his arrest. The Committee also notes that the State party argues that the time limit was exceeded partly due to the complexity of the case, and partly to the Court’s scheduling practice (para 4.8 above). The Committee further notes the State party’s statement that, according to the Human Rights Act, the Covenant, and other international human rights treaties, shall have force as Norwegian law and that the obligations under the Covenant shall take precedence over the Criminal Procedure Act in the event of conflict of norms. The Committee notes that the State party expressed support for the general 48-hour rule, and that section 183 of the Criminal Procedure Act states that the time limit for bringing an arrested person before a judge is as soon as possible and not later than on the third day following the arrest.

8.8In this regard, the Committee recalls that any person arrested or detained on a criminal charge shall be brought promptly before a judge and that 48 hours is ordinarily sufficient to transport the individual and to prepare for the judicial hearing; any longer delay must remain absolutely exceptional and be justified under the circumstances. Prompt initiation of judicial oversight also constitutes an important safeguard against the risk of ill-treatment of the detained person. The period for evaluating promptness begins at the time of arrest and not at the time when the person arrives in a place of detention. The meaning of the term “promptly” in article 9 (3) of the Covenant must be determined on a case-by-case basis and any period of delay longer than 48 hours would require special justification to be compatible with article 9 (3) of the Covenant.

8.9In the present case, the Committee notes that the author was brought to the District Court 48 hours and 35 minutes after his arrest, and presented to the judge 52 hours and 15 minutes after that arrest. While this amount of time formally exceeds the 48-hour rule enunciated in the Committee’s jurisprudence and general comment No. 35 (2014), the Committee notes that the delay of four hours was purely logistical and merely due to the court schedule and was neither excessive nor arbitrary. During the four additional hours, the author was in the premises of the tribunal and had access to his lawyer. In the light of the information before it, the Committee cannot conclude that the State party has not demonstrated sufficiently that the delay in the 48-hour rule was absolutely exceptional and justified by the circumstances and accordingly finds no breach of the authors’ rights under article 9 (3) of the Covenant.

8.10The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the information before it does not disclose a violation by the State party of article 9 (3) of the Covenant.