Court Holds Libya in Violation of Human Rights for Institution of Illegal Criminal Procedure
April 21, 2017
Court Holds Libya in Violation of Human Rights for Institution of Illegal Criminal Procedure
African Commission on Human and Peoples’ Rights v Libya
African Court on Human and Peoples’ Rights
Ramadhani A.S.L P, Thompson E.N. VP; Niyungeko G, Ouguergouz F, Tambala D, Ore S, Guisse E.H, Kioko B, Achour R.B, Bossa S.B, Matusse A.V JJ; and Eno R, Registrar
June 3, 2016
Reported by Linda Awuor & Faith Wanjiku
International Law-law of treaty-African Charter on Human and Peoples’ Rights-fundamental rights and freedoms-right to liberty and security of a person-whether the Respondent allegedly violated article 6 of the Charter on the right of every individual to liberty and to the security of his person by arresting the Detainee and keeping him in isolation without access to his family, friends or any lawyer-African Charter on Human and Peoples’ Rights, 1981, article 6
International Law- law of treaty-African Charter on Human and Peoples’ Rights-fundamental rights and freedoms-right to have one’s cause heard-whether the Respondent allegedly violated article 7 of the Charter on the right to have one’s cause heard by not charging the Detainee with any offence nor bringing him before any court-African Charter on Human and Peoples’ Rights, 1981, article 7
On November 19, 2011, from the communication of one Ms Mishana Hosseinioun on behalf of Mr. Sa”lf Al-lslam Kadhafi(detainee), the National Transitional Council which was then recognised as the Government of Libya, arrested the Detainee and kept him in isolation without access to his family, friends or any lawyer. The Detainee, who was not charged with any offence and, worse still, was not brought before any court, was reportedly being kept in a secret location. It alleged that the victim’s life was in danger and his physical integrity and health exposed to the risk of irreparable harm.
The Application was filed following a Communication submitted on April 2, 2012 before the African Court alleging violation of the rights of the Detainee by the Respondent, which rights were guaranteed by articles 6 and 7 of the African Charter on Human and Peoples’ Rights, 1981(Charter) relating respectively to, the right of every individual to liberty and to the security of his person and the right to have one’s cause heard, due to the fact that the Detainee was deprived of his fundamental rights, as he was kept continuously in secret detention since November 19, 2011, without the possibility of getting himself assisted by a counsel of his choice.
In the circumstances, on April 18, 2012, as requested by Ms Mishana Hosseinioun, the author of the communication, the Court issued an Order for Provisional Measures to pre-empt any irreparable harm to the Detainee. However, the Respondent State ignored the provisional measures despite reminders addressed to it by the African Court on Human and Peoples Rights (ACHPR). The Court was seised of this matter through an Application dated February 28, 2013, brought by the Applicant, pursuant to Rule 34 of the Interim Rules of the Court.
i. Whether the Respondent allegedly violated article 6 of the Charter on the right of every individual to liberty and to the security of his person by arresting the Detainee and keeping him in isolation without access to his family, friends or any lawyer.
ii. Whether the Respondent allegedly violated article 7of the Charter on theright to have one’s cause heard by not charging the Detainee with any offence nor bringing him before any court.
iii. Whether the Respondent had failed to comply with the Order for Provisional Measures to pre-empt any irreparable harm to the Detainee issued by the ACHPR on April 18, 2012 pursuant to rule 51(4) of its Interim Rules of Court.
iv. Whether the ACHPR could render a judgment in default against the Respondent under rule 55 of theInterim Rules of Court on the merits of the application.
Relevant Provisions of the Law
African Charter on Human and Peoples Rights, 1981
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.
1. 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 recognized 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.
Interim Rules of the Court
- Whenever a party does not appear before the Court, or fails to defend its case, the Court may, on the application of the other party, pass judgment in default after it has satisfied itself that the defaulting party has been duly served with the application and all other documents pertinent to the proceedings. Before acceding to the application of the party before it, the Court shall satisfy itself that it has jurisdiction in the case, and that the application is admissible and well founded in fact and in law.
- Before acceding to the application of the party before it, the Court shall satisfy itself that it has jurisdiction in the case, and that the application is admissible and well founded in fact and in law.
International Covenant on Civil and Political Rights, 1966
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
Held by the Majority:
- The relevant provisions of Rule 55 of its Interim Rules of Court regarding judgment in default and had to ascertain whether all the requirements of the rule had been met in the case. On ascertaining that the defaulting party had been duly served with the application and all other documents pertinent to the proceedings, it appeared from the account of the different stages of the aforesaid proceedings that both the Detainee and Registry communicated all the pleadings to the Respondent, including the request for provisional measures.
- The first condition for the passing of a judgment in default had been met. Not only had all the pleadings been served on the Respondent, but the latter, while it sent the Court two Notes Verbale in response to the Order of March15, 2013, consistently failed to present its defence, despite the extension of the deadline accorded.
- The Applicant was, as earlier indicated, the African Commission on Human and Peoples’ Rights. Under article 5(1) of the Protocol, the Commission was one of the entities/institutions entitled to submit cases to the ACHPR. Consequently, the Court had personal jurisdiction vis-a-vis the Applicant to hear the case. The Respondent was Libya, a State which ratified the Charter on July 19, 1986, and the Protocol on November 19, 2003, both texts of which are in force with respect to the Respondent. Under article 3(1) of the Protocol, the jurisdiction of the ACHPR would extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, the Protocol and any other relevant Human Rights instrument ratified by the States concerned. The ACHPR had personal jurisdiction, vis-a-vis the Respondent, to hear the case.
- The Detainee alleged violation of articles 6 and 7 of the Charter by the Respondent. The matter submitted by the Applicant fell within the material jurisdiction of the ACHPR, and the issue at stake actually concerned the application of the relevant provisions of the Charter to which the Respondent was a Party.
- According to the Application, the alleged violation of the Charter occurred for the first time in 2011 and had continued to date. Consequently, and since the purported facts occurred after the entry into force of the Protocol, the ACHPR found that it had temporal jurisdiction to examine the alleged violation of the right to liberty and the right to a fair trial raised in this case. The ACHPR also noted that with regard to territorial jurisdiction there was no shadow of doubt that the facts of the case occurred in the territory under the authority of the Respondent.
- It was obvious from the facts of the case that the secret detention, isolation by the revolutionary brigade, the fact of not having access to a counsel or to a judge during the procedures for extension of his detention were such that the Detainee could not use the provisions applicable in seeking a remedy. Besides, the documents adduced by the Detainee showed that the Detainee was unable to avail himself of the said remedies even when they were available. Indeed, he was first arraigned before a special court called the People’s Court which on December 23, 2012, was declared unconstitutional by the Supreme Court of Libya. Despite that, the fact that the Detainee was being detained in a secret location by a revolutionary brigade and completely isolated from his friends and family, without access to a lawyer of his choice and sentenced to death in absentia, constituted sufficient grounds for the Court to conclude that the Detainee had been prevented from legally seeking local remedies as prescribed by Libyan law and that, consequently, it was impossible for him to fulfil the condition regarding exhaustion of local remedies.
- The requirement to exhaust local remedies was not strictly applicable in the case given that such local remedies were not available and were not effective; and even if they were, the Detainee had not had and did not have the possibility of using the said remedies. The Detainee could not be expected to exercise such a remedy before bringing the case before the ACHPR.
- As regards the reasonable time requirement, the initial Application was filed before the ACHPR on January 31, 2013 that is, one year following the firm conclusion that the Respondent State had not complied with the Provisional Measures ordered by the Commission on April 18, 2012. The Application limited itself to praying the ACHPR to issue provisional measures against the Respondent. That was a reasonable period of time.
- Incommunicado detention constituted in itself a gross violation of human rights that could lead to other violations such as torture, ill treatment or interrogation without appropriate due process safeguards. On that score, the Human Rights Committee noted that arrest and detention incommunicado for seven days and the restrictions on the exercise of the right of habeas corpus constituted violations of article 9 of the International Covenant on Civil and Political Rights as a whole. It emerged from the foregoing that the Detainee incommunicado detention and in isolation, the numerous extensions of the detention in his absence, and without the assistance of a lawyer of his choice to challenge every extension of that detention, constituted a violation of his right to liberty and to the security of his person as set forth under Article 6 of the Charter.
- It was similarly established that the right to be promptly arraigned before a judicial authority had not been respected. Every individual arrested or detained for a criminal offence should be brought with minimum delay before a judge or any other authority entitled by law to exercise judicial function, and should be tried within a reasonable time or set free. However, in the case, the Detainee was first arraigned before an extra-ordinary Court and subsequently condemned to death by an unknown tribunal.
- The right to defence also implied that the Detainee had the right to communicate with his counsel and have adequate time and facilities to prepare his/her defence. The accused or Detainee could not be tried without his or her counsel being notified of the trial date and of the charges levelled against him or her in time to allow for adequate preparation of a defence. The accused had a right to adequate time for preparation of a defense to commensurate with the nature of the proceedings and the factual circumstances of the case. That implied the right to communicate with his lawyer and the right to access the materials required to prepare his defence.
- The same was the case with other international courts, notably the European Court of Human Rights, which, on October 14, 2010 noted that the person held in custody had the right to be assisted by a lawyer from the outset of such a measure and during interrogations and should have been informed by the authorities of his right to remain silent. In another matter, the Court recalled that the right of every accused person to be effectively defended by a lawyer, if need be, was at the heart of the notion of fair trial.
- The Detainee had not had access to a lawyer nor was he afforded the assistance of a counsel of his choice. He had therefore not been protected during the different stages of the investigation instituted against him. For example, he was interrogated in the absence of a counsel and was not given the opportunity to examine the charges which would have been brought against him at the start of the trial. The Detainee had been arrested over two years ago and had been sentenced to death in absentia.
Dissenting Opinion of Judge Fatsah Ouguergouz
- It was undeniable that the non-appearance of one of the parties to a case necessarily had a negative impact on the proper administration of justice and that it substantially complicated the task of the ACHPR in the exercise of its mission. The purport of the requirements set forth in Rule 55 (2) of the Interim Rules of Court was precisely to ensure proper administration of justice in such circumstances. As underscored by the International Court of Justice in regard to article 53 of its own Rules; the use of the term satisfy itself in the English text of the Statute implied that the Court had to attain the same degree of certainty as in any other case that the claim of the party appearing was sound in law, and, so far as the nature of the case permitted, that the facts on which it was based were supported by convincing evidence.
- Rule 55 (2) of the Interim Rules of the Court therefore sought to preserve, to the extent possible, the principle of equality of the parties in adducing evidence of alleged violations through an exhaustive consideration of the facts and of the applicable law. Being bound by the Rule to ensure that the Application was well founded in fact and in law, the ACHPR was obliged to use every means and method at its disposal to achieve that purpose.
- The ACHPR failed to use every available means and method to ensure that the Application was well founded in fact. The ACHPR considered the alleged facts as established facts without examination of their veracity. The ACHPR therefore sought to have purely and simply endorsed the Applicant’s submissions in the case, and by so doing, apparently pronounced itself automatically in favour of the Applicant, which was precisely what the prescriptions of Rule 55 of the Interim Rules of the Court were intended to avoid.
- The summary motivation of the judgment was in sharp contrast with the very elaborate motivation contained in the threejudgments recently rendered by the ACHPR in cases similarly concerning the right to a fair trial, and in which the two parties participated. In its first two judgments rendered in default, the Inter-American Court of Human Rights, for its part, embarked on a very meticulous evaluation of the evidence adduced by the appearing party regarding violation of the right to a fair trial by the Respondent State. In a recent judgment rendered in default, the Court of Justice of the Economic Community of West African States also gave relatively elaborate reasons before concluding that the Respondent State had violated article 7 of the African Charter on Human and Peoples Rights.
- The judgment being the very first rendered in default by the ACHPR, it would have been desirable, if not necessary, that the ACHPR clearly determined the principles which should have guided it in effectively discharging its obligations under Rule 55 of the Interim Rules of the Court and that it scrupulously applied the said principles in the case.
a) Orders of March15, 2013 and of August 10, 2015, and ordered the Respondent State to comply therewith.
b) Pursuant to articles 3 and 5(1) (a) of the Protocol, theCourt had jurisdiction to hear the Application filed by the African Commission on Human and Peoples’ Rights.
c) The Application was declared admissible.
d) The Respondent had violated and continued to violate articles 6 and 7 of the African Charter on Human and Peoples’ Rights.
e) The Respondent State was ordered to protect all the rights of the Detainee as defined by the Charter by terminating the illegal criminal procedure instituted before the domestic courts.
f) The Respondent was ordered to submit to the Court a report on the measures taken to guarantee the rights of the Detainee within sixty days.