CCPR/C/115/D/2005/2010
Guantanamo Bay, Cuba, where he was detained from January 2002 to March 2007. On 31
March 2007, he was sentenced by the Military Commission to seven years of
imprisonment. Following a bilateral prisoner transfer arrangement between the United
States and Australia, the author was returned to Australia on 20 May 2007, where he served
seven months of his sentence. He was released on 29 December 2007. Prior to his release,
an interim control order was imposed upon him by the Federal Magistrates Court of
Australia. The author claims, inter alia, that, by virtue of that arrangement, Australia
participated directly in the retrospective punishment and imprisonment to which he was
subjected while he was under the jurisdiction of the United States, thus breaching his rights
under the Covenant.
1.3
A full account of the facts as presented by the author, his claims under the Covenant,
the observations of the State party on admissibility and the merits and the author’s
comments on the State party’s observations are contained in annex II to the present
document.
Issues and proceedings before the Committee
Consideration of admissibility
2.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 93 of its rules of procedure, whether or not the case is
admissible under the Optional Protocol.
2.2
The Committee notes, as required in article 5 (2) (a) of the Optional Protocol, that
the same matter is not being examined under any other procedure of international
investigation or settlement. The Committee further notes the author’s claim that he has
exhausted domestic remedies by instituting several legal and non-contentious proceedings.
In the absence of comments from the State party in that regard, the Committee considers
that it is not precluded from examining the communication under article 5 (2) (b) of the
Optional Protocol.
2.3
The author alleges that, from the time he was taken into United States custody in
Afghanistan in December 2001 until his transfer to Australia on 20 May 2007, he was the
victim of violations of his rights under the Covenant, most of which took place while he
was detained at the United States Naval Base at Guantanamo Bay. In that respect, it is
undisputed that, during all those years, the author was held under the jurisdiction of the
United States and that his sentence was the result of a trial conducted by United States
authorities. It is also undisputed that most of the violations claimed by the author are
attributed to the United States. However, the author’s claims before the Committee focus on
the part of responsibility borne by Australia in its dealings with the United States, which led
to the author’s serving his sentence in Australia.
2.4
The author claims that Australia is responsible for the violation of his rights under
the Covenant for the following reasons: (a) by virtue of the transfer arrangement, Australia
participated directly in his retrospective punishment and imprisonment, thereby breaching
article 15 (1) of the Covenant; (b) his imprisonment in Australia flowed directly from his
unfair, unlawful and discriminatory trial in the United States, in violation of articles 2, 14
and 26 of the Covenant: the unfairness of his trial automatically renders his detention in
Australia arbitrary and unlawful, as Australia assumed responsibility for carrying out the
sentence and punishment; (c) the Government of Australia negotiated directly with the
United States concerning the trial standards that would apply to the author; (d) public
statements asserting his guilt were repeatedly made by senior United States and Australian
officials, which severely prejudiced his ability to receive a fair trial; (e) Australia did not
make strong protests or representations to the Government of the United States to object
either to the retroactivity of the charge or to the unfairness of the procedure; (f) Australia
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