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Decision
of the 34th Session of African Commission on Human &
Peoples' Rights
ACHPR
- Feb 2004
250/2002 – Liesbeth Zegveld and Mussie Ephrem/Eritrea
Rapporteur:
31st Session: Commissioner
Rezag Bara
32nd Session: Commissioner Rezag Bara
33rd Session: Commissioner Rezag
Bara
34th Session: Commissioner Rezag
Bara
Summary of Facts
1. The
complaint is filed by Dr. Liesbeth Zegveld, an international lawyer at a
Netherlands based firm - Böhler Franken Koppe De Feijter, and Mr.
Mussie Ephrem, an Eritean living in Sweden.
2. The
Complainants allege that 11 (eleven) former Eritrean government officials,
namely, Petros Solomon, Ogbe Abraha, Haile Woldetensae, Mahmud Ahmed
Sheriffo, Berhane Ghebre Eghzabiher, Astier Feshation, Saleh Kekya, Hamid
Himid, Estifanos Seyoum, Germano Nati, and Beraki Ghebre Selassie were
illegally arrested in Asmara, Eritrea on 18th and 19th
September 2001 in violation of Eritrean laws and the African Charter on
Human and Peoples’ Rights. They were part of a group of 15 senior
officials of the ruling Peoples Front for Democracy and Justice (PFDJ) who
had been openly critical of the Eritrean Government policies. In May 2001,
they wrote an open letter to ruling party members criticising the
government for acting in an “illegal and unconstitutional” manner.
Their letter also called upon “all PFDJ members and Eritrean people in
general to express their opinion through legal and democratic means and to
give their support to the goals and principles they consider just.” The
government subsequently announced that the 11 individuals mentioned above,
on whose behalf the present complaint is being filed, had been detained
“because of crimes against the nation’s security and sovereignty.”
3. The
complaint also alleges that the detainees could be prisoners of
conscience, detained solely for the peaceful expression of their political
opinions. Their whereabouts is currently unknown. The Complainants allege
that the detainees may be held in some management building between the
capital Asmara and the port of Massawa. They have reportedly not been
given access to their families or lawyers. The Complainants fear for the
safety of the detainees.
4. The
Complainants state that they have made a request for habeas corpus to
the Minister of Justice of Eritrea. They claim that they could not submit
the same to the courts, as the place of detention of the 11 former
officials was unknown. They allege that in the habeas corpus the
Eritrean authorities were asked, among others, to reveal where the 11
detainees were being held, to either charge and bring them to court or
promptly release them, to guarantee that none of them would be ill treated
and that they have immediate access to lawyers of their choice, their
families and adequate medical care. The Complainants allege that no
reaction has been received from the Eritrean authorities.
5. Together
with their complaint the Complainants submitted a request for provisional
measures to the African Commission in accordance with Rule 111 of the
Rules of Procedure of the African Commission.
Complaint
6. The
Complainants allege violations of Articles 2, 6, 7(1), and 9(2) of the
African Charter on Human and Peoples’ Rights.
7. The
Complainants pray that should the detainees be tried, the trial should be
held in accordance with international human rights standards and without
recourse to the death penalty. They claim that such a trial should not be
before the Special Court, which they allege fails to meet international
standards of fair trial.
Procedure
8. The
complaint was dated 9th April 2002 and received at the
Secretariat on 9th April 2002 by fax, and on 9th and
11th April 2002 by email. The Complainants have also sent
copies of their complaint to Commissioner Ibrahim Ali Badawi, and to the
Special Raporteur on Prisons and Conditions of Detention in Africa,
Commissioner Vera Chirwa.
9. On 19th
April 2002, the Secretariat wrote to the Complainants acknowledging
receipt of the complaint, and informing them that their request for
provisional measures was noted and would be acted upon accordingly.
10. On 3rd May 2002, the
African Commission wrote a letter of appeal to His Excellency Issayas
Afewerki, President of the State of Eritrea, respectfully urging Him to
intervene in the matter being complained of pending the outcome of the
consideration of the complaint before the Commission.
11. At its 31st Ordinary
Session held from 2nd to 16th May 2002 in Pretoria,
South Africa, the African Commission considered the complaint and decided
to be seized thereof.
12. On 20th May 2002, the
Ministry of Foreign Affairs of the State of Eritrea responded to the
Commission appeal and confirming to the latter that the alleged victims on
whose behalf the complaint was filed had their quarters in appropriate
government facilities, had not been ill-treated, have had continued access
to medical services and that the government was making every effort to
bring them before an appropriate court of law as early as possible.
13. On 28th May 2002, the
Secretariat wrote to the Complainants and the Respondent State of the
Commission’s decision to be seized of the matter and requested them to
forward their submissions on admissibility before the 32nd
Ordinary Session of the Commission.
14. The Secretariat of the African
Commission forwarded the Ministry’s response to the Chairperson of the
African Commission on 7th June 2002 and to the Complainants on
18th June 2002.
15. On 15th July 2002, the
Respondent State forwarded its submissions on admissibility to the
Secretariat of the African Commission.
16. On 5th August 2002,
the Complainants forwarded their submissions on admissibility.
17. On 25th October 2002,
the African Commission wrote, by way of follow up on its urgent appeal in
the matter, to the Respondent State reminding it that it was the
responsibility of the Member State’s General Prosecutor to bring the
accused before a competent court of law in accordance with the rules
guaranteeing fair trial under relevant national and international
instruments.
18. At its 32nd Ordinary
Session held in Banjul, The Gambia from 17th to 23rd
October 2002, the African Commission examined the communication and
decided to defer its consideration on admissibility to the 33rd
Ordinary Session.
19. On 7th November 2002,
the Secretariat of the African Commission wrote to the parties informing
them of this decision.
20. On 8th February 2003,
the Secretariat of the African Commission received from the Respondent
State further submissions on admissibility of the Communication, which
were forwarded to the Complainants on 17th February 2003.
21. On 3rd March 2003, the
Complainants forwarded further submissions on the admissibility of the
Communication, which were forwarded to the Respondent State on 5th
March 2003.
22. At its 33rd Ordinary
Session held from 15th to 29th May 2003, in Niamey,
Niger, the African Commission heard oral submissions from both parties to
the communication and decided to declare the communication admissible.
23. On 10th June 2003, the
Secretariat of the African Commission wrote informing the parties to the
communication of the African Commission’s decision and requested them to
forward their submissions on the merits of the communication within 3
months.
24. The Chairperson of the African
Commission forwarded a letter dated 10th June 2003 appealing to
H.E the President of Eritrea to intervene in this matter and urge the
authorities holding the 11 individuals to release them or bring them
before the courts in Eritrea.
25. On 6th August 2003,
the Complainants forwarded by fax their submissions on the merits to the
Secretariat of the African Commission. The Secretariat acknowledged
receipt of the said submissions and forwarded a copy of the submissions by
Note Verbale to the Respondent State.
26. On 27th August 2003,
the Secretariat of the African Commission received a Note Verbale from the
Respondent State expressing its dismay at the decision of the African
Commission to declare this communication admissible.
27. By a Note Verbale dated 17th
September 2003, the Secretariat of the African Commission acknowledged
receipt of the Respondent State’s Note Verbale and reminded it to
forward its submissions on the merits of the communication.
28. At its 34th Ordinary
Session, held from 6th to 20th November 2003 in
Banjul, The Gambia, the African Commission considered the communication
and delivered its decision on the merits.
LAW
Admissibility
29. The admissibility of
communications brought pursuant to Article 55 of the African Charter is
governed by the conditions stipulated in Article 56 of the African
Charter. This Article lays down seven (7) conditions, which must generally
be fulfilled by a Complainant for a communication to be declared
admissible.
30. At issue in the present
communication is whether the Complainants have pursued and exhausted the
domestic legal remedies of Eritrea, and if not, whether the exception to
the exhaustion of domestic remedies rule should apply. This issue of
exhaustion of domestic remedies is governed by Article 56(5) of the
African Charter and it provides -:
Communications
… received by the Commission shall be considered if they-:
(5)
are
sent after exhausting local remedies, if any unless it is obvious that
this procedure is unduly prolonged
31. The rule requiring exhaustion of
local remedies has been applied by international adjudicating bodies and
is premised on the principle that the Respondent State must first have an
opportunity to redress by its own means within the framework of its own
domestic legal system, the wrong alleged to have been done to the
individual.
32. In determining whether this
communication should be declared admissible or otherwise, the African
Commission must have regard to the arguments put forward by the
Complainants and the Respondent State.
33. The Complainants submit they have
attempted to exhaust local remedies in Eritrea. They state that on 26th
November 2001 and on 9th April 2002, they submitted a habeas
corpus request through the Eritrean Minister of Justice asking the
Eritrean Authorities to disclose where the 11 detainees were being held
and why. The Complainants also requested that the detainees be brought to
court and charged in accordance with the law, however, there was no
response to their request. A similar request was made on 26th
June 2002 (which is after the African Commission was seized of their
complaint) to the Eritrean High Court in Asmara to which there was no
reply either.
34. In her oral submissions during
the 33rd Ordinary Session of the African Commission, Zegveld
stated that in an attempt to access the local courts, they had requested
locally based legal practitioners (whom she declined to name) to bring the
matter before the local courts. However, the said lawyers later informed
her that they would not be able to pursue the detainees’ case in the
domestic courts for fear of persecution by the authorities and for fear of
jeopardising their legal practice.
35. The Complainants further submit
that for more than 18 months, the 11 detainees have been held in detention
without formal charges and with no access to their lawyers or families
thus rendering them unable to seek legal or administrative redress.
Furthermore, there has been no response from the government of Eritrea or
High Court of Asmara, in relation to the Complainants’ requests of 26th
November 2001 and 9th April 2002.
36. Under the circumstances presented
above, the Complainants aver that the requirement to exhaust local
remedies can no longer apply because even where such remedies would have
been existent they have been unduly prolonged in this case.
37. The Complainants refer the
African Commission to a decision of the European Court of Human Rights in Ocalan
vs Turkey
where the court held that Ocalan’s isolation and the fact that the
Turkish police obstructed his access to lawyers made it impossible for the
applicant to have effective recourse to a domestic remedy under Turkish
Law.
38. In its written submissions, the
Respondent State argues that the Complainants addressed their habeas
corpus request to the Minister of Justice who is a member of the
Executive branch with no capacity to address and take decisions on this
matter either in substance or in procedure. They submit that only the
judiciary has the authority to take action on any civil, criminal and
other issues of judicial nature including, the matter of habeas corpus.
39. During the 33rd
Ordinary Session, the Representative of the Respondent State submitted
that to date the Complainants have not submitted themselves to the courts
in Eritrea. He informed the African Commission that he had personally
checked with the High Court of Asmara to establish whether the matter had
been brought to the court’s attention but there was no case file on this
matter.
40. The Representative of the
Respondent State argues that the Complainants’ assertion that they have
not been able to access the domestic courts is speculative. He stated that
Zegveld should accredit herself to the courts in Eritrea to enable her
bring this matter before the local courts.
41. The Respondent State further
submits that they have been unable to bring the 11 detainees before a
court of law because of the nature of the criminal justice system in
Eritrea. The Representative of the Respondent State informed the African
Commission that the criminal justice system in Eritrea was inherited from
Ethiopia and is therefore lacking. Within the High Court of Asmara, there
is only one chamber responsible for handling criminal cases including
criminal matters from the lower courts. As such, the Court’s calendar is
highly congested and difficult to manage. Therefore cases are bound to
take time before they are heard by the courts and this is the very reason
for the delay in bringing the matter of the 11 detainees before a court of
law.
42. There are exceptions to the rule
of exhaustion of domestic remedies and the Complainants have argued that
they could not exhaust the domestic remedies because the domestic
legislation of the Eritrea does not afford due process of law for the
protection of the rights that have allegedly been violated.
43. At this stage, it should be made
clear that, when a person is being held in detention and accused for
committing a crime, the African Commission holds that it is the
responsibility of the Member State, through its appropriate judicial
bodies, to bring this person promptly before a competent court of law in
order to enable him/her to be tried in accordance with rules guaranteeing
the right to a fair trial in accordance with national and international
standards.
44. The Inter-American Court of Human
Rights in the Velasquez case
while interpreting Article 46 of the American Convention (similar to
Article 56(5) of the African Charter) which relates to the issue of
exhaustion of domestic remedies, stated that, for the rule of prior
exhaustion of domestic remedies to be applicable, the domestic remedies of
the State concerned must be available, adequate and effective in order to
be exhausted. The Court also opined that where a party raises
non-exhaustion of local remedies because of the unavailability of due
process in the State, the burden of proof will shift to “the State
claiming non-exhaustion and it has an obligation to prove that domestic
remedies remain to be exhausted and that they are effective.”
45. In Consolidated
communication 147/95 and 149/96,
the African Commission also ruled that domestic remedies must be
available, effective and sufficient; A domestic remedy is considered
available if the petitioner can pursue it without impediment, it is
effective if it offers a prospect of success and it is sufficient if it is
capable of redressing the complaint.
46. The African Commission notes that
by its own admission, the Respondent State has indicated that it has not
yet put in place structures that would ensure that cases are handled
“within reasonable time”. However, the Respondent State goes ahead to
assure the African Commission that the detainees will be brought before a
court of competent jurisdiction in due course.
47. The State has a constitutional or
statutory requirement to provide an accessible, effective and possible
remedy whereby alleged victims can seek recognition and restoration of
their rights before resorting to the international system for protection
of human rights. Such procedures should not be mere formalities that,
rather than enable the realisation of those rights, to the contrary,
dilute with time any possibility of success with respect to their
assertion, recognition or exercise.
48. Very clearly, the situation as
presented by the Respondent State does not afford due process of law for
protection of the rights that have been alleged to be violated; the
detainees have been denied access to the remedies under domestic law and
have thus been prevented from exhausting them. Furthermore, there has been
unwarranted delay in bringing these detainees to justice.
49. For these reasons, the African
Commission declares this communication admissible.
Ruling by the African Commission on request by the
Respondent State to revisit the decision on admissibility
50. The present communication was
declared admissible at the 33rd Ordinary Session of the African
Commission’s held in May 2003. In response to the African Commission’s
request for written submissions on the merits, the Respondent State in a
Note Verbale expressed its dismay at the African Commission’s decision
to declare the matter admissible. They stated that they found the African
Commission’s decision on admissibility unacceptable and therefore
requested that the African Commission revisits its decision on
admissibility.
51. Before dealing with the merits of
the communication, the African Commission would like to pronounce itself
on the request by the Respondent State to revisit its decision on
admissibility.
52. Firstly, it should be noted that
the Respondent State did not bring any new element, either on the facts of
the case as considered by the African Commission or on the legal grounds
upon which he is making such a request.
53. Secondly , Rule 118(2) of the
African Commission’s Rules of Procedure stipulate that:
If
the Commission has declared a communication inadmissible under the
Charter, it may reconsider this decision at a later date if it receives a
request for reconsideration….
The
Rules of Procedure do not make provision for the African Commission to
revisit its decision once a communication has been declared admissible.
Furthermore, it has been the practice of the African Commission not to
reconsider a decision declaring a communication admissible.
For
these reasons the African Commission will not revisit its decision on
admissibility in this matter.
Merits
54. The African Commission delivered
its decision on admissibility of this communication at its 33rd
Ordinary Session and informed the parties of its decision on 10th
June 2003. The Secretariat of the African Commission further requested the
parties to forward their submissions on the merits of the communication
within 3 months. Whereas the Complainants forwarded their written
submissions on the merits of the communication, none were received from
the Respondent State. It is an established principle of the African
Commission that where allegations of violations of provisions of the
African Charter go uncontested by the Government concerned, the African
Commission must decide on the facts as given. This principle also conforms
to the practice of other international human rights adjudicatory bodies.
In the present communication therefore, the African Commission is left
with no alternative but to proceed and deliver a decision on the merits
based on the submissions of the Complainants.
Although the African Commission has in this decision referred to the oral
submissions made by the Respondent State during the 33rd
Ordinary Session, especially as they relate to some issues that touch upon
the merits of the communication, the Respondent State’s failure to
present comprehensive submissions on the merits has been done at its own
peril.
55. By Note Verbale dated 20th
May 2002, the Respondent State informed the African Commission that the 11
persons had indeed been detained for “conspiring to overthrow the
legal government of the country in violation of relevant OAU resolutions,
colluding with hostile foreign powers with a view to compromising the
sovereignty of the country, undermining Eritrean National Security and
endangering Eritrean society and the general welfare of its people”.
The Respondent State further stated that such detention was in conformity
with the criminal code of the country. In their oral submissions made
during the 33rd Ordinary Session in May 2003, the Respondent
State further admitted that they had not at the time brought the 11
detainees before any court of law.
56. The Complainants aver that the 11
persons who were former Eritrean Government officials, had been openly
critical of the Eritrean government policies and as a direct result of
their open letter criticising the government of Eritrea for acting in an
illegal and unconstitutional manner, they were arrested and detained for
committing “crimes against the nation’s security and sovereignty.”
57. The Complainants state that the
11 detainees have since September 2001 been held incommunicado and have
never been brought before any courts of law in violation of Article 17(4)
of the Constitution of the State of Eritrea and Article 6 of the African
Charter. Article 17 (4) of the Constitution provides that every person who
is held in detention must be brought before a court of law within 48 hours
of his arrest and no person shall be held in custody beyond such a period
without the authority of the court.
58. The Complainants submit that the
abovementioned acts by the Respondent State violate Articles 2, 6 and 7(1)
of the African Charter.
59. Article 2 of the African Charter
provides
“Every
individual shall be entitled to the enjoyment of the rights and freedoms
recognised and guaranteed in the present Charter without distinction of
any kind such as race, ethnic group, colour, sex, language, religion, or
any other opinion, national or social origin, fortune, birth or other
status.”
Article
6 of the African Charter provides
“Every
individual shall have the right to liberty and to the security of his
person. No one may be deprived of his freedom except for reasons and
conditions previously laid down by law. In particular, no one may be
arbitrarily arrested or detained”
Article
7(1) of the African Charter provides
Every individual shall have the right to have his cause heard. This
comprises
a)
The
right to an appeal to competent national organs against acts of violating
his fundamental rights as recognised and guaranteed by conventions, laws,
regulations and customs in force;
b)
The
right to be presumed innocent until proved guilty by a competent court or
tribunal;
c)
The
right to defence, including the right to be defended by counsel of his
choice;
d)
The
right to be tried within a reasonable time by an impartial court or
tribunal;
60. Although Article 6 of the African
Charter guarantees the right to liberty and security of the person, this
is not an absolute right because the African Charter allows the
deprivation of this right through lawful means. The African Charter
specifically prohibits arbitrary arrests and detention.
61. Evidence before the African
Commission indicates that the 11 persons have been held incommunicado and
without charge since they were arrested in September 2001. This fact has
not been contested by the Respondent State. They are being held in custody
and have been cut off from communication with the outside world, with no
access to their lawyers or families. Their whereabouts are unknown putting
their fate under the exclusive control of the Respondent State.
62. The African Commission on two
occasions wrote letters of Appeal to the President of the State of Eritrea
informing him about the communication before the African Commission and
requested him to intervene in the matter to ensure that the 11 persons are
removed from secret detention and brought before the courts of law in
Eritrea. In a Note Verbale dated 20th May 2002, the Ministry of
Foreign Affairs of the State of Eritrea informed the African Commission
that the 11 persons were being held in appropriate government facilities,
that they had not been ill-treated and had access to medical services. The
Ministry assured the African Commission that the government was making
every effort to bring them before an appropriate court of law as early as
possible. The African Commission notes that to date it has not received
any information or substantiation from the Respondent State demonstrating
that the 11 persons were being held in appropriate detention facilities
and that they had been produced before courts of law.
63. Incommunicado detention is a
gross human rights violation that can lead to other violations such as
torture or ill-treatment or interrogation without due process safeguards.
Of itself, prolonged incommunicado detention and/or solitary confinement
could be held to be a form of cruel, inhuman or degrading punishment and
treatment. The African Commission is of the view that all detentions must
be subject to basic human rights standards. There should be no secret
detentions and States must disclose the fact that someone is being
detained as well as the place of detention. Furthermore, every detained
person must have prompt access to a lawyer and to their families and their
rights with regards to physical and mental health must be protected as
well as entitlement to proper conditions of detention.
64. The African Commission holds the
view that the lawfulness and necessity of holding someone in custody must
be determined by a court or other appropriate judicial authority. The
decision to keep a person in detention should be open to review
periodically so that the grounds justifying the detention can be assessed.
In any event, detention should not continue beyond the period for which
the State can provide appropriate justification. Therefore, persons
suspected of committing any crime must be promptly charged with legitimate
criminal offences and the State should initiate legal proceedings that
should comply with fair trial standards as stipulated by the African
Commission in its Resolution on the Right to Recourse and Fair Trial
and elaborated upon in its Guidelines on the Right to Fair Trial and
Legal Assistance in Africa
65. In the present communication, the
Respondent State did not provide the African Commission with any details
regarding the specific laws under which the 11 persons were detained but
instead generally states that their detention is in “consonance with
the existing criminal code …and other relevant national and
international instruments”. The 11 persons were detained on account
of their political beliefs and are being held in secret detention without
any access to the courts, lawyers or family. Regrettably, these persons’
rights are continually being violated even today, as the Respondent State
is still holding them in secret detention in blatant violation of their
rights to liberty and recourse to fair trial.
66. The Complainants further allege
that the 11 persons were arrested and detained because they expressed
opinions that were critical of the Respondent State. The Complainants
submit that this amounts to a violation of Article 9 (2) of the African
Charter, which provides
“Every
individual shall have the right to express and disseminate his opinions
within the law”
67. The right to freedom of
expression has been recognised by the African Commission as a fundamental
individual human right which is also a cornerstone of democracy and a
means of ensuring the respect for all human rights and freedoms.
Nonetheless, this right carries with it certain duties and
responsibilities and it is for this reason that certain restrictions on
freedom of expression are allowed. However, Article 9(2) as well as
Principle II(2) of the Declaration of Principles on Freedom of
Expression in Africa categorically state that such
restrictions have to be provided for by law.
68. It is a well settled principle of
the African Commission that any laws restricting freedom of expression
must conform to international human rights norms and standards relating to
freedom of expression
and should not jeopardise the right itself. In fact, the African Charter
in contrast to other international human rights does not permit derogation
from this or any other right on the basis of emergencies or special
circumstances.
69. Consequently, if any person
expresses or disseminates opinions that are contrary to laws that meet the
aforementioned criteria, there should be due process and all affected
persons should be allowed to seek redress in a court of law.
70. The facts as presented leave no
doubt in the mind of the African Commission that the Respondent State did
indeed restrict the 11 persons’ right to free expression. No charges
have been brought against the 11 persons and neither have they been
brought before the courts. Such restrictions not only violate the
provisions of the African Charter but are also not in conformity with
international human rights standards and norms.
For
the above reasons, the African Commission,
Finds
the
State of Eritrea in violation of Articles 2, 6, 7(1) and 9(2) of the
African Charter on Human and Peoples’ Rights;
Urges
the
State of Eritrea to order the immediate release of the 11 detainees,
namely, Petros Solomon, Ogbe Abraha, Haile Woldetensae, Mahmud Ahmed
Sheriffo, Berhane Ghebre Eghzabiher, Astier Feshation, Saleh Kekya, Hamid
Himid, Estifanos Seyoum, Germano Nati, and Beraki Ghebre Selassie; and
Recommends
that the State of Eritrea compensates the abovementioned persons
Done
at the 34th Ordinary Session of the African Commission
held
from 6th to 20th November 2003, in Banjul, The
Gambia
Other
relevant links:
African Charter on
Human and Peoples' Rights. (pdf)
UN's
Universal Declaration of Human Rights.
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