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Award of reparations to an applicant whose human rights had been violated by a member state under the African Charter on Human and Peoples’ Rights

Andrew Ambrose Cheusi v United Republic of Tanzania

[2015] App 004

African Court on Human and Peoples’ Rights

S Ore, B Kioko, RB Achour, AV Matusse, MT Mukamulisa, S Mengue, RT Chizumila, C Bensaula, D Tchikaya, SI Anukam, JJ

June 26, 2020

Reported by Faith Wanjiku & Ian Otenyo

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International Law – law of treaty – African Charter on Human and Peoples’ Rights – rights of the accused – right to a fair trial –identification parade and interrogation of prosecution’s evidence – failure of – whether the respondent violated the applicant’s right to a fair trial when they identified him without conducting an identification parade, and by denying him the opportunity to interrogate the prosecution’s evidence contrary to article 7(1) of the Charter – African Charter on Human and Peoples’ Rights, 1981, article 7(1)

International Law – law of treaty – African Charter on Human and Peoples’ Rights– rights of the accused – right to a fair trial – right to legal representation – right to be tried within a reasonable time due process – tendering evidence to prove alleged violations – whether the respondent violated the applicant’s right to free legal representation by failing to provide a defense counsel – African Charter on Human and Peoples’ Rights, 1981, article 7(1)(c) and (d)

International Law – law of treaty – African Charter on Human and Peoples’ Rights– rights of the accused – right to) the right to be tried within a reasonable time by an impartial court or tribunal – where there was unreasonable delay in hearing an accused’s case – whether the period of ten years, four months and twenty-three days taken by the respondent’s High Court to determine the applicant’s appeal was excessive in breach of article 7 (1) (d) of the Charter – African Charter on Human and Peoples’ Rights, 1981, article 7(1)(d)

International Law – law of treaty – African Charter on Human and Peoples’ Rights – admissibility of the application – exhaustion of local remedies – demonstration of – time frame within which an applicant should file a matter before the court – circumstances to be taken into consideration informing the delay in filing a suit – whether applicant exhausted all domestic remedies before filing the application before the court – African Charter on Human and Peoples’ Rights, 1981, article 56 (6)

International Law – law of treaty – Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and People’s Rights – reparations – pecuniary reparations –material prejudice – moral prejudice suffered by the applicant – assessment of quantum damages in awarding compensation – need for guarantees of non-repetition and report on implementation and measures of satisfaction by a respondent state– principles considered in awarding remedies by the court –what principles should the court consider in awarding remedies upon the conclusion that a respondent state had violated an applicant’s right to free legal representation and his right to be tried within a reasonable time -Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and People’s Rights, article 27 (1); Legal Aid Policy of the Court, article 27 (1)

 

Brief facts:

The applicant was convicted of armed robbery and sentenced to thirty years’ imprisonment on September 22, 2005. He appealed against his conviction and sentence before the respondent’s High Court and subsequently at the Court of Appeal, however, both appeals were dismissed.

The applicant was then convicted on a second case on October 3, 2005, on the count of conspiracy to commit a felony, and for the offence of robbery. He was sentenced to seven and fifteen years’ imprisonment, respectively. The applicant appealed against that conviction in 2006 before the High Court. In 2017, the High Court quashed the applicant’s conviction and set aside part of the unserved sentence because the applicant had served a substantial part of his sentence. The High Court also ordered the applicant to be set free unless lawfully held for another matter. The applicant however, remained in prison serving his thirty years sentence for the conviction of armed robbery in the first case. The African Court on Human and Peoples’ Rights (the court) received the instant suit after four years, nine months, twenty-three days had lapsed.

Issues:

  1. Whether the respondent violated the applicant’s right to a fair trial when they identified him without conducting an identification parade, and by denying him the opportunity to interrogate the prosecution’s evidence contrary to article 7(1) of the Charter.
  2. Whether the applicant had exhausted local remedies before filing the instant suit before the court.
  3. Whether the period of ten years, four months and twenty-three days taken by the respondent’s High Court to determine the applicant’s appeal was excessive in breach of article 7 (1) (c) of the Charter.
  4. Whether the respondent violated the applicant’s right to free legal representation by failing to provide a defense counsel.
  5. What principles should the court consider in awarding remedies upon the conclusion that a respondent state had violated the applicant’s right to free legal representation and his right to be tried within a reasonable time?

Relevant provisions of the law

African Charter on Human and Peoples’ Rights

Article 7 (1) (c) and (d)

Every individual shall have the right to have his cause heard. This comprises: (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.

Article 56 (6)

Communications relating to human and peoples’ rights referred to in Article 55 received by the Commission, shall be considered if they are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter.

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and People’s Rights

Article 27 (1)

If the court finds that there has been violation of a human or peoples’ right, it shall make appropriate orders to remedy the violation including the payment of fair compensation or reparation.

Held:

  1. The reasonableness of a time limit would depend on the particular circumstances of each case. Some of the circumstances that the court took into consideration included the applicant’s imprisonment and that he lacked the benefit of legal representation.
  2. The court recognized that the applicant was awaiting the outcome of his second appeal, which remained pending before the High Court of Tanzania from October 27, 2006 until March 19, 2017. Between 2011 and 2013, the applicant did not simply sit back and wait for his matter to be considered, but he sent several reminders to various judicial authorities requesting the finalisation of his appeal. Thus, the applicant had a legitimate expectation that his requests would be addressed and his delay in filing his application before the court was justified. As such, the application met all the conditions of admissibility under article 56 of the African Charter on Human and Peoples’ Rights (the Charter).
  3. The omission of the identification parade did not constitute a miscarriage of justice, and therefore, it was not a violation to the applicant’s right to a fair trial.
  4. The applicant demonstrated that he had exhausted local remedies since he had appealed his first conviction all the way to the Court of Appeal which was the highest court in the respondent state. That court upheld the decision made by the District Magistrate Court. The applicant was neither required to pursue an application for review of that decision at the Court of Appeal nor to file a constitutional petition at the High Court as they were extraordinary remedies.
  5. The applicant was represented by counsel, whom he had personally engaged. However, that was not the case throughout the trial and appellate proceedings. The failure of the respondent to provide the applicant with free legal assistance at the appellate levels was inconsistent with international human rights standards. The respondent violated the applicant’s right to free legal assistance as guaranteed by article 7(1) (c) of the Charter.
  6. The period of ten years, four months and twenty-three days taken to determine the applicant’s appeal at the High Court in respect of the second case was excessive and could not be regarded as a reasonable time. The respondent had therefore violated the applicant’s right to be tried within a reasonable time as guaranteed under article 7 (1) (d) of the Charter.
  7. The purpose of reparation was to as far as possible, erase all the consequences of the wrongful act and restore the state which would presumably have existed if that act had not been committed. In assessing applications for reparation of prejudices resulting from human rights violations, the court took into account the principle according to which the state found guilty of an internationally wrongful act was required to make full reparation for the damage caused to the victim.
  8. The court would consider the applicant’s claims for compensation on the basis of the principles:a) Pecuniary reparations(i) Material prejudice

    The applicant did not tender evidence in support of his claims that he suffered loss of income, loss of finances for payments to his counsel and loss of finances by his family members when they constantly visited him in prison. The claim for compensation based on the disruption of his life plan, chronic illness and poor health, were simply general statements not supported by any evidence.

    (ii) Moral prejudice suffered by the applicant

    Moral prejudice involved the suffering, anguish and changes in the living conditions of an applicant and his family. As such, the causal link between the wrongful act and moral prejudice could result from the human rights violation, as a consequence thereof, without a need to establish causality as such. The evaluation of quantum in cases of moral prejudice had to be done in fairness and taking into account the circumstances of the case. In such instances, awarding lump sums would generally apply as the standard.

    With respect to the currency in which the quantum of damages would be assessed, the applicant could not be made to bear the fluctuations inherent in financial activities. Determination should be made on a case-by-case basis. As a general rule, damages would be awarded, as far as possible.

    (iii)Moral prejudice suffered by indirect victims

    With regard to the moral prejudice suffered by indirect victims, to be entitled to reparations, the indirect victims had to prove their filiation with the applicant. The applicant’s parentage could be proved with a birth certificate or any other equivalent proof; spouses had to produce their marriage certificate or any other equivalent proof; the siblings had to provide a birth certificate or any other equivalent document to attest to their filial link with the applicant.

    The applicant provided the names of his wife, son, mother and siblings, but had not provided any evidence of their identification and proof of his filiation with the alleged indirect victims. The applicant had failed to provide evidence of filiation between him and the alleged indirect victims.

    b) Non-pecuniary reparations

    (i) Restitution

    With respect to the applicant’s request for the conviction and sentence to be quashed, the court stated that it could not examine details on matters of fact and law that national courts were entitled to adjudicate. The court could order for his release or to set aside the sentence, only in special and compelling circumstances.

    An applicant would sufficiently demonstrate, or the court itself would establish from its findings that the applicant’s arrest or conviction was based entirely on arbitrary considerations and that his continued imprisonment would occasion a miscarriage of justice. In the instant case, the applicant had not proven the existence of such exceptional circumstances, and given that the court had not established the said circumstances proprio motu, it dismissed the prayer for release.

    c) Guarantees of non-repetition and report on implementation

    To prevent future violations, guarantees of non-repetition were to be ordered to eradicate structural and systemic violations of human rights. Such measures were therefore not generally intended to repair individual prejudice but rather to remedy the underlying roots of the violation. In the instant case, the court noted that the nature of the violations found, those were the applicant’s rights to free legal assistance and to be tried within a reasonable period were unlikely to recur. Thus, the circumstances that surrounded the request were not justified and the prayer had to be dismissed.

    d) Measures of satisfaction

    There was need to emphasise and raise awareness as regard the respondent’s obligations to make reparations for the violations established with a view to enhancing implementation of the judgment. The judgment should be publicized on the merits on the judiciary’s websites and the Ministry of Constitutional and Legal Affairs where it should be accessible for at least one year after the date of publication. That could serve as an appropriate additional measure of satisfaction.

  9. With regard to legal fees, the applicant was represented by Pan African Lawyers Union throughout the proceedings under the court’s legal assistance scheme. The court maintained that the legal assistance scheme was pro bono in nature and thus, that claim lacked merit and was dismissed.
  10. As regards to transport and stationary costs, they formed part of the concept of reparation. They fell under the categories of expenses that would be supported in the Legal Aid Policy of the court. Since the applicant’s counsel represented the applicant on a pro bono basis, the claims for those costs were unjustified and were therefore dismissed.

Suit partly allowed.

Orders:

  1. The court dismissed the objection to the admissibility of the application and gave a declaration that the application was admissible.
  2. The respondent did not violate the applicant’s right to fair trial under article 7 (1) of the Charter in terms of the alleged irregularities in the visual identification, and the denial of the opportunity to challenge the prosecution’s evidence.
  3. The respondent had violated the applicant’s right to fair trial, provided under article 7(1) (c) of the Charter since they failed to provide him with free legal assistance.
  4. The respondent had violated the applicant’s right to be tried within a reasonable time as regards the second case whose appeal took ten years to finalise, contrary to article 7(1) (d) of the Charter.
  5. Respondent to pay Tanzanian Shillings five million seven hundred and twenty-five thousand (TZS 5,725,000) tax free as a fair compensation, within six months from the date of notification of the instant judgment, failing which, it would be required to pay interest on arrears calculated.

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