Human Rights OU'
Collective Bes nonsibi rv
COMMUNICATION 716/19
Three Jehovah's Witnesses
(Represented by Lawyers Associated
for Human Rights in Africa)
v
The State of Eritrea
Adop/I.d by 1M:
African Comnu.uion 011 Human end Peoples' Rights
Dw'lng tJse 7f1' Ordinar}' Session, held in hyI:rrldjormat,jro'fn
" CI!?' c1 '"
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19 JtiIy to 2 bgu4t 2023.
The African Commission
on Human and Peoples' Rights
31 Bijilo Annex Layout. Kombo North District, West Coast Regio;']
Phone: (220) 230 4361 Fax' (220) 441 05 04
Email: au-banlul(O>africa-union.org
https;/achpr
au InVO c...
The Decision of the African Commission on
Human and Peoples' Rights on Merits
Communication
716/19 Three Jehovah's
Witnesses (Represented
by Lawyers Associated
for Human Rights in Africa) v. the State of Eritrea
Summary of the Complaint
1. The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat) received a Complaint on 7 January 2019 from Lawyers Associated for
Human Rights in Africa (the Complainant) on behalf of Paulos Eyassu, Issac Mogos
and Negcde Teklemariam (the Victims). The Complaint is submitted against the State
of Eritrea (hereinafter the "Respondent State" or "Eritrea) which is a State Party to the
African Charter on Human and Peoples' Rights (the Charter). 1 The Complaint was
initiated by the family members of the Victims, who reside outside of Eritrea and have
appointed the Complainant to act as their legal representative.!
2. The Complainant submits that the Victims were seized by military personnel on 17
September 1994 and have since been detained incommunicado. Family members of the
Victims have only been able to gain limited access to the Victims through unofficial
channels and with the help of prison officials acting on their own volition. The Victims
were detained at the Sawa Military Camp from the time of their arrest until November
2017, when they were transferred to Mai Serwa Prison. The Complainant submits that
the Victims have not been charged with any criminal offense and that their detention
is predicated on their conscientious objection to Eritrea's mandatory military service.
3. The Complainant submits that the Victims have been subjected to cruel,
inhumane,and degrading treatment, and in this regard, notes conditions of detention
"without adequate food or water ... beatings ... torture">, The Complainant also alleges
instances in which Jehovah's Witnesses were segregated from other detainees and
imprisoned in Shipping containers. The Complainant further alleges acts of
humiliation and psychological torture in which the Victims were stripped in public
and subjected to mock burials, where they were on several occasions instructed t~i
their graves. The Complainant submits that the health and wellbeing of the Victims
".
The State of Eritrea ratified the Charter on 14 January 1999.
2 Doc 1 - 10, Proof of Legal Representation.
1 Doc 20, para 23; Doc 21, paras. 8, 14.
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have been endangered as a result of the conditions of detention and the ill-treatment
they have been subjected to. The Complainant avers that four Jehovah's Witnesses are
known to have died in custody while three others died shortly after their release from
detention.
4. The Complainant contends that the treatment of the Victims is part of a broader state
policy against Jehovah's Witnesses. The Complainant makes reference to a
Presidential Decree issued by the President of Eritrea depriving Jehovah's Witnesses
of their Eritrean citizenship. The Complainant also points to an instance in which a
spokesperson of the President of Eritrea visited Sawa Military Camp in 2013, where
the Victims were being held at the time, and described Jehovah's Witnesses as "very
dangerous" to prison officials. 4
5. The Complainant submits that due to their inability to access legal representation or a
court of law, the Victims have been unable to seek redress. A statement from relatives
of the Victims contends that "In Eritrea, no lawyer will do anything against the
government'O The Complainant also avers that any insistence on legal avenues may
lead to reprisals from authorities against the Victims. The Complainant also submits
that the Eritrean judiciary is not independent and that the Respondent State has
exhibited a general disregard for the rule of law, which ultimately make local remedies
unavailable.
Articles alleged to have been violated
6. The Complainant alleges violations of Articles 5, 6, 7, and 8 of the Charter.
Prayers
7. The Complainants pray that the African Commission on Human and Peoples' Rights
(the Commission) declares that the Respondent State:
i. Has violated Articles 5, 6, 7, and 8 of the Charter;
ii. Forthwith release the Victims, including all other Jehovah's Witnesses in
detention, and that their administrative and criminal records be amended or
reissued to restore their full rights;
iii. Conduct investigations and prosecute the perpetrators of any unlawful acts
committed against the Victims;
iv. Provide remuneration by way of just satisfaction to the Victims to compensate
them for the entire period of their unlawful detention and for loss of income,
physical, mental.and emotional damages, whether pecuniary or non-pecuniary,
including, costs and expenses of the authors in investigating, prep~'
presenting and prosecuting this Communication;
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Doc 17, para. 28.
s Doc 16, para. 20.
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v. Forthwith amend its legislation and regulations, including Presidential Decrees
and executive and extra-judicial orders, to restore full rights to Jehovah's
Witnesses, full rights as citizens; and
vi. A direction that if the State party fails to implement the recommendations above
before the subsequent session of the Commission, the conduct of the State Party
in this matter be referred immediately to the Sub-Committee on the
Implementation of the Decisions of the African Union of the Permanent
Representatives Committee and to such other organs of the African Union or
international bodies as may be just.
Procedure
8. The Secretariat received the Complaint on 7 January 2019 and acknowledged
receipt by letter (Ref: ACHPR/STC/GEN/60/19)
on 29 January 2019.
its
9. By letter (Ref: ACHPR/COMM/ERI/83/19)
dated 11 February 2019 informing the
Complainant that while anonymity for the Complainants and witnesses was possible,
the practice of the Commission is to fully disclose the identity of Victims, and that the
processing of the Complaint can only continue on this basis.
10. By lelter dated 13 February 2019, the Complainants provided consent to the
processing of the Complaint on the basis that the identity of the Victims would be fully
disclosed.
11. The Complaint was seized by the Commission during its 25th Extra-Ordinary Session
held from 19 February - 05 March 2019 in Banjul, The Gambia.
12. By letter (Ref: ACHPR/COMM/716/19/
ERI/251/19) and Note Verbale (Ref:
ACIlPR/COMM/716/19/ERl/250/19)
the Secretariat informed the parties of the
Seizure decision on 11 March 2019. By letter of the same date, the Secretariat requested
that the Complainant submit un-redacted documents. The State was notified of the
Provisional
Measures
granted
by
Note
Verbale
(Ref:
ACHPR/PROVM/ERI/716/19/252/19)
on 12 March 2019.
13. The Secretariat received the Admissibility submissions of the Complainant on 8 April
20]9.
14. The Secretariat received a request for an Oral Hearing on the non-implementation of
Provisional Measures on 9 April 2019 and 15 April 2019 from the Complainant. By
letter
(Ref: ACHPR/COMM/716/19/576/19)
and
Note
Verbale
(Ref:
ACHPR/COMM/716/19/ERI/575/19),
the Secretariat informed the pal' ties that the
Commission had granted the request for oral hearing, and that this would take place
during the 26th Extra Ordinary Session, to be held from 16 - 30 July 2019, in Banjul,
The Gambia.
~~
15. By letter (Ref: ACHPR/COMM/716/19/782/19)
and Note V [Gale (Ref:
ACHPR/COMM/716/19/ERI/781/19)
the Secretariat reminded the P
es 01'1 5 July
2019 that they are to submit the names and functions of th
respective
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representatives 10 days before the hearing as per Rule 99 (10) of the Rules of Procedure
of the Commission.
16. Following
the
oral
hearing,
by
Note
Verbale
(Ref:
ACHPRjCOMMj716jI9jERTj872j19)
dated 31 July 2019 the Secretariat transmitted
the Admissibility submissions of the Complainant to the Respondent State.
17. By Note Verbale (Ref: ACHPRjCOMMj716j19j1211j19)
the Secretariat informed
the Respondent State of a 30 day extension for submissions on Admissibility on 1
October 2019.
18. On 2 December 2019, by Note Verbale (Ref: ACHPRjCOMMj716jI9jERrj1574jI9)
the Secretariat sent a reminder on Provisional Measures to the Respondent State and
by Note Verbale (Ref: ACHPRj COMMj716j19jERl/1574j
19) the Commission
offered its good offices with a view to reaching an amicable settlement following
which the Commission shall proceed to consider the matter on Admissibility.
19. Consideration of the Communication was postponed from the 65th Ordinary Session,
held from 21 October to 10 November 2015, in Banjul, The Gambia, to the 28th
Extraordinary Session, which took place from 29 June to 3 July 2020.
20. During the 67th Ordinary Session held virtually from 13 November - 3 December 2020,
the Commission decided to defer consideration of the Communication to a later
Session.
21. By letter dated 10 December 2020, the Complainant informed the Commission that the
victims had been released from detention, and expressed their wish to continue with
the prosecution of this Communication.
22. The Respondent State was notified of deferral decision by Note Verbale Ref:
ACHRPjCOMMj716j19jERlj1025j20
dated 22 December 2020.
23. On 12 August 2022, the Commission sent Note Verbale to the State of Eritrea
forwarding to the latter the Complainant's submissions on merits and requesting to
forward written submissions on merits, containing arguments and evidence within
two months of receipt of the request, in order to enable the Commission to proceed
with its determination.
24. By Note Verbale Ref: ACHPRjCOMMj7J6j19jERIj174j23
dated 10 February 2023,
the Secretariat informed the Respondent State that the latter's submissions on merits
were long overdue, and that it has been decided to grant the Respondent State a last
and final period of thirty (30) calendar days from the date of receipt of this notification
to file any written submissions. The Secretariat further informed the Respondeneet .. u~
that, should the said submissions not be received within the above-stated eriod, the
Commission will proceed with a determination on the merits of the rna
'by default.
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25. By letter of even date, the Secretariat informed the Complainant of the decision to
grant the Respondent State a last and final period of thirty (30) calendar days to file
any written submissions.
Admissibility
Complainant's
Submissions
on Admissibility
26. The Complainant argues that the Communication. shouJd be declared Admissible as
it fulfils all the requirements listed under Article 56 of the Charter.
27. The Complainant submits that the Communication indicates its authors and provides
contact addresses for the legaJ representatives of the Victims, as required by Article 56
(1).
28. The Complainant contends that the Communication demonstrates prima facie
violations of Articles 5,6,7 and 8 of the Charter. Pertaining to the compatibility of the
Communication raiionae iemporis, the Complainant argues that aJthough the alleged
violations begun when the Victims were arrested on 17 September 1994, prior to the
Respondent State's accession to the Charter on 14 January 1999, the acts of the
Respondent State a.re continuous violations of the Charter. As such, the Complainant
concludes that the conditions of Article 56 (2) have been fulfilled.
29. The Complainant submits that the Communication does not contain any disparaging
or insulting language, and that the information contained therein is not exclusively
based on news disseminated through the media. As such, the Complainant concludes
that the conditions of Article 56 (3) and Article 56 (4) have been fulfilled.
30. The Complainant submits that the conditions of Article 56 (5) have also been fulfilled,
as the present Communication meets the exceptions to the obligation to exhaust 10caJ
remedies. The Complainant argues that the principle should not be applied rigidly,
and that the Commission must take into consideration the availability, effectiveness
and sufficiency of any potential remedies.
31. The Complainant submits that in RADDHO v. Zambia, the Commission understood
the underlying rationale for Article 56 (5) to be providing the State with the
opportunity to address the alleged violations through its own domestic framework
before the matter is considered by an international body.s In this regard, the
Complainant argues that as the Respondent State remains responsible for the initial
arrest and continued imprisonment of the Victims through its own military and
security personnel, the Respondent State is estopped from claiming that it is unaware
of the aUeged violations, or that it has not had the opportunity to remed}'-ttll~ .....
violations. Tn addition, the Complainant documents the rcpeated7fats
of the "'",
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6 Communication
71/92 - Recontre alricaine pour la defence des droits de l'Hornrne
(1997), ACHPR, para. 10
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Victims' relatives to contact and visit them over the years, which have been rebuffed
by the Respondent State.
32. The Complainant submits that the judiciary's lack of independence in Eritrea makes
it impossible for local courts to guarantee access to justice or ensure fair trial rights,
and that the Executive branch of government is "unchallengeable" in Eritrea. The
Complainant argues that the judiciary is merely a vehicle for expressing the views of
the President, and that the courts of the Respondent State are "tools of repression
rather than courts of justice"." The Compla inant argues tha t the condition of the
judiciary in Eritrea has crea ted an atmosphere in which persons are fearful of seeking
justice. According to the Complainant, a former Administrator in the Saw a Military
Camp staled that none of the detainees in the camp have been afforded a lawyer or
brought before a court of law.8 A relative of one the Victims also states that they are
unable to return and seek justice on behalf of the Victims without risking "severe
punishment" from the Respondent State because they would be considered to be
"traitors". 9 The Complainant submits that fear of reprisal from the authorities is what
has prompted the relatives of the Victims to retain the services international lawyers
as opposed to making use of locally available legal Practitioners.
33. The Complainant also submits that domestic remedies are unavailable and ineffective
as a result of the Respondent State's policy against Jehovah's Witnesses. The
Complainant contends that through a Presidential.Decree issued on 25 October 1994,
the Respondent State revoked the Eritrean citizen of Jehovah's Witnesses, citing their
alleged refusal to participate in Eritrea's referendum of independence in 1993, and
their reluctance to take part in National Service.
34. Alternatively, the Complainant submits that even if the Commission was to find that
remedies are available and effective, such remedies are nevertheless unduly delayed.
The Complainant argues that in circumstances where a person is detained, the State
assumes the responsibility "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'T''' As such,
the Complainant submits that the burden of proof rests on the Respondent State to
justify this delay, as the Victims have been detained incommunicado since their arrest,
without charge or trial.
35. The Complainant submits that Article 56 (6) is not applicable to this Communication.
To this end, the Complainant argues that in Iuterights v Eritreat) the Commission
came to a conclusion that the issue of submission within a reasonable time does not
apply when domestic remedies are either unavailable or ineffective. The Complainant
furthermore argues that as the alleged violations are continuous, they are not time
bound. As such, the Complainant concludes that the conditions of Article 56 (6) have
been fulfilled.
36. Finally, the Complainant submits that the present Communication fulfills the
conditions of Article 56 (7) as it has not been submitted to any other international
procedure of investigation or settlement.
Commission's Analysis on Admissibility
37. The present matter is brought under Article 55 of the Charter, and as such, needs to
satisfy the seven (7) cumulative conditions of Article 56 of the Charter on the
Admissibility of Communications. The Commission observes that only the
Complainant has made submissions on Admissibility, and despite being duJy
notified, the Respondent State has failed to make its submissions. The Commission
shall nevertheless proceed to determine Admissibility on the basis of information and
evidence available to it by the Complainant't
Indication of authors (Article 56 (1»
38. Article 56 (1) states tha t Communications shou Id 'indicate their authors even if the lntter
request anonymity'. As recorded in the Procedure section, the Complainant has
requested that the personal details and names of witnesses be withheld from the
Respondent State, which the Commission has granted. Consequently, evidence
transmitted to the Respondent State and made publicly available will have the
personal details of witnesses redacted whenever applicable. With this being said, the
Complainant has .disclosed its identity, including the necessary contact details. The
Commission therefore finds that the conditions of Article S6 (1) have been satisfied.
Compatibility with the African Charter and Constitutive
(Article 56 (2»
Act of the African Union
39. Article S6 (2) requires that Communications are 'compatible with the Charter of the
Organiuuion of African Unity or with the present Charter'.
40. As held by the Commission in Law Society of Zimbabwe v Zimbabwe, the
compatibility of a Communication with the Constitutive Act of the African Union is
grounded on its compatibility with the objectives and principles enshrined in the Act,
specifically, as to whether the prayers requested in the Communication wouJd
contravene the objectives or principles expressed in the Act. 13 In this regard, the
Commission does not view any aspect of the present matter as potentially infringing
on any of the objectives or principles of the Constitutive Act. I~
12 See Communication
308/05 - Michael Majuru v Zimbabwe (2008) ACHPR, para. 56.
Conununication 321/2006 - Law Society of Zimbabwe et III v Zimbabwe (2013) ACt [PR
14 Constitutive Act of the African Union (2000) Article 3, 4.
13
41. A Communication
must also be compatible with the Charter. As such, a
Communication can only be considered if the relevant State is a party to the Charter
and any alleged violations emanate from rights protected in the Charter. Additionally,
the alleged violations must have been committed within the territory or jurisdiction
of the relevant State, and after the Charter has come into effect for that particular State.
42. In light of the above, the Commission does not observe any challenges in concluding
that the alleged violations occurred within the territory of the Respondent State, and
that the relevant State is indeed a party to the Charter.
43. Alleged violations must also have a basis in the Charter, and in this regard, the
Commission has held that the facts presented must reveal prima fade violations of
rights and freedoms contained in the Charter. A determination of a prima fade
violation is reached through a preliminary inspection of the facts, without any further
examination, which would ordinarily take place at the Merits stage, if the
Communication is found to be Admissible. 15 In this particular instance, the
Complainant alleges violations of Articles 5, 6, 7 and 8 of the Charter, and supports
this through the presentation of specific facts detailing the manner in which the
Victims were arbitrarily arrested and their subjection to cruel and inhumane treatment
in detention. The Complainant has also demonstrated that the primary reason for the
arrest of the Victims is due to their conscientious objection of military service. For
these reasons, the Commission finds that the Communication reveals prima faCie
violations of the Charter.
44. In principle, Article 63 and Article 65 of the Charter form the basis for the ratione
temporis jurisdiction of the Commission. These provisions limit the competence of the
Commission to alleged violations occurring after the coming into force of the Charter
and three (3) months after the relevant State has deposited its instrument of
ratification. There are however exceptions to these rules that allow for an expanded
interpretation of ratione tell/paris. TnGunme v Cameroon, the Commission noted that it
has " ... through its jurisprudence established the principle that violations that
occurred prior to the entry into force of the Charter, in respect of a State party, shall
be deemed to be within the jurisdiction rtitionae temporis of the Commission, if they
continue, after the entry into force of the Charter".16
45. In this particular instance, the Victims were arrested on 17 September 1994, prior to
the Respondent State depositing its instrument of ratification on 15 March 1999.
Pursuant to the principle established in Article 65, the Charter came into effect for the
Respondent State on 15 June 1999, and any aIJeged violations occurring prior to that
date would ordinarily fall outside the competence of the Commission. As observed
however, the Victims remain detained incommunicado. In effect, the Respondent State
has continued to allegedly violate provisions of the Charter notwithstanding its
15 Communication
306/05 - Samuel T. Muzerengwa and 110 Others (represented by Zimba
Human Rights) v Zimbabwe (2011) para 56 "when the facts presented in the Complaint sh
obligation to act in conformity with the Charter once it came into effect.'? The present
situation therefore falls within the circumstances envisioned in Gunme v Cameroon.
For these reasons, the Commission finds that it has the competency to consider this
Communication.
Disparaging or insulting language (Article 56 (3»
46. Article 56 (3) requires that Communications 'are not wriften in disparaging or insulting
language directed against the State concerned and its institutions or to the Organization of
African Unib]'.
47. The Commission is of the view that although the Complainant has used strong
language, describing the Courts of the Respondent State as "tools of repression rather
than courts of justice", this does not raise any serious concerns that ought to bring the
matter within the scope of Article 56 (3) of the Charter, This view is informed primarily
by two reasons, firstly as to the need to balance Article 56 (3) with the right of
complainants to freely express their grievances, and secondly, as to the high threshold
adopted by the Commission in Complaints that were found to have contained
insulting or disparaging language.
48. In relation to the first, the Commission has recognized in Zimbabwe Lawyers for Human
Rights v Zimbabwe that Article 56 (3) must be interpreted in line with the right to
freedom of expression under Article 9 (2) of the Charter. 18As such, the Commission
must ensure that its Complaints procedure does not silence complainants, especially
taking into account that allegations of human rights violations will necessarily contain
use of strong language to describe the serious nature of the alleged violations or to
capture the emotions of the complainant. The key point is that the language must not
be aimed at or calculated to undermine the dignity or integrity of the institution in
question, particularly in instances where the evidence adduced does not lend itself to
the conclusions drawn or justify the language used by the complainant. The
Commission is of the view that in this instance, the Complainants merely described,
based on evidence, the manner in which the Executive branch of government has
undermined the independence of the judiciary, rather than a premeditated or
unsubstantiated use of language intended to undermine the judiciary. As held by the
Commission in Asemie v Lesotho "The language used by the Complainant must
unequivocally demonstrate the intention of the Complainant to bring the State and its
institution into disrepute."19
49. In relation to the second, the Commission
notes that in its past decisions, it has
considered use of language accusing the President of the State of having been "bribed
by drug smugglers"20 or describing the State as a "criminal neo-colonial regime"21 as
insulting and disparaging. Certainly, the use of language by the Complainant in this
instance pales in comparison to the aforementioned examples, and does not rise to
threshold established by the Commission.
News disseminated through mass media (Article 56 (4»
50. Article 56 (4) requires that Communications 'are not based exclusively on Hews
disseminated througll file mass media', The Commission observes that the facts presented
are substantiated and corroborated by sworn witness statements and reports from
international organizations, amongst which are from the United Nations (Human
Rights Council, Human Rights Committee), the European Asylum Support Office,
I-:tuman Rights Watch and Amnesty International. For these reasons, the Commission
finds that the conditions of Article 56 (4) have been satisfied.
Exhaustion of local remedies (Article 56(5»
shall only be considered if they 'are sent after exhausting local remedies,
if any, unless it is obvious tha! this procedure is unduly prolonged'.
51. Communications
52. The principle of exhaustion of local remedies underpins
the recognition of the role of
treaty bodies as complementary to the duty of States to respect and protect the rights
they have voluntarily undertaken. In line with this principle, States should be allowed
the first opportunity to remedy or address any alleged violations through their
respective domestic processes, before an international body can properly be seized of
the matter.
53. The Commission recalls from Interighis v Mauritania that local remedies are "the
ordinary remedies of common law that exist in jurisdictions and normally accessible
to people seeking justice". 22 The specifics of wha t constitute the norm will necessarily
be contingent on the legally prescribed processes of the respective State. This would
however generally exempt complainants from having to exhaust extra judicial or
discretionary remedies such as executive pardons or procedures available by way of
quasi-judicial bodies. Complainants are furthermore only expected to pursue local
remedies to the extent that they are available, effective and sufficient.P
54. In this instance, the Complainant argues that domestic remedies are unavailable and
ineffective. The Complainant submits that the judiciary's lack of independence
renders any attempts to exhaust local remedies futile. The Complainant also contends
that the Executive branch of government in Eritrea, headed by the President, is
20 Communication
268/03 -Tlesanmi v Nigeria (2005) ACHPR, paras. 38 - 40.
No. 65/92 - Ligue Camerounaise Des Droits De Lhomme v Cameroon (1997) ACHPR, para.
l3.
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22 Communication 242/0] - Interights, lnstitute for Human Rights and Development in Africa, and Association
mauritanieune des droits de l'Hornrne v Mauritania (2004) ACHPR para. 27.
/'.
23 Communication
147/95-149/96 - Sir Dawda K. Jawara v Gambia (2000) ACHPR, para. 32' "Tem9<ly is
considered available if the petitioner can pursue it without impediment. .. effective if it offers )pro~pect of
success ... and ... sufficient if it is capable of redressing the Complaint".
1,1
11 Communication
"unchallengeable",
policies.
and tha t the courts are merely tools for the realization of the State's
55. In Anunk Justice Council v Ethiopia, the complainant similarly argued that "pursuing
domestic remedies would be futile due to the lack of an independent and impartial
judiciary" .24 The Complainant in that instance supported this argument by
referencing a report from the World Bank, which stated that the judiciary required
significant strengthening to obtain true independence. In its decision however, the
Commission reasoned that it was not sufficient for a complainant to merely argue that
domestic remedies are unlikely to succeed without having attempted to pursue them.
56. In Kenyan Section of lire luiemational Commission of [urists v Kenya, the Commission also
considered the arguments of the Complainants that "exhausting local remedies in this
case would be impossible and inordinately convoluted because the judiciary is
compromised and severely lacking in independence".
25 In this regard,
the
Commission stated that it wouLd be "setting a dangerous precedent if it were to admit
a case based on a Complainant's apprehension about the perceived lack of
independence of a country's domestic institutions, in this case the Judiciary".26
57. The Commission reiterates its previous position that unless complainants are able to
demonstrate an individualized situation which would render local remedies
unavailable or ineffective in relation in their particular case, arguments as to the
general state of the Judiciary are not sufficient.
58. The Commission now turns to examining the remainder of the Complainant's
submissions, which speak to the individualized circumstances of the Victims. In this
regard, the Complainant submits that as the Victims have been detained
incommunicado, it has been unable to pursue local remedies, and that any further
insistence may lead to reprisals against the Victims or their representatives. The
Complainant moreover submits that local remedies are unavailable to the Victims due
to the Respondent State's policy against Jehovah's Witnesses.
59. A local remedy is considered available when it is accessible and can be practically
pursued without impediments. In this particular instance, the Victims have been
detained incommunicado for over 25 years, and have been denied access to any sort of
legal representation. Tnthis regard, the Commission takes note of the jurisprudence of
the African Court on Human and Peoples' Rights (the Court) that, "It is obvious from
the facts of the case that the secret detention, isolation by the revolutionary brigade,
the fact of not having access to a counselor to a judge during the procedures for
extension of his detention were such that Mr. Gadhafi could not use the provisions
applicable in seeking a remedy".27 As such, it is clear that in the present instance, the
Victims could not have exhausted local remedies.
24 Communication
299/05 - Anuak Justice Council v Ethiopia (2006) ACHPR, para. 34.
263/02 - Kenyan Section of the International Commission of Jurists, Law S
and Kituo Cha Sherin v Kenya (2004) para. 34.
26 As above, para. 42.
r 0
7:1 Application 002/2013 - African Commission on Human and Peoples' Rights v Libya (2016 ~Cr~ IPR, para.
25 Communication
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60. Ordinarily however, the burden to exhaust local remedies falls on the author of a
Complaint, and it is the author who is expected to call the attention of the State to the
alleged violations. In circumstances where the author and the victim are different, as
is the situation in this Communication, the burden remains with the author. This
distinction can prove consequential when local remedies may be available to one of
the authors or the victim, but not to both. In this instance, remedies are clearly
unavailable to the Victims, who are detained incommunicado. In Nixon Nyikndzino 11
Zimbabwe however, the Commission held that " ... even though the Victim was not able
to exhaust local remedies, the Complainant could have taken the case before
Zimbabwean courts or made arrangements for someone else to plead the Victim's case
on his behalf". 28 The Commission furthermore observes in Article 19 v Eritrea, that it
had stated that "the Complainant could, at the very least, have seized the local courts
by way of a writ of habeas corpus ... "29
61. In light of the above, the Commission notes the submissions of the Complainant
evidencing how the relatives of the Victims and organizations representing Jehovah's
Witnesses have unsuccessfully attempted to secure the release of the Victims over a
period of time, from meetings with Ambassadors to letters to the President.P The
Complainant also submits that on multiple occasions, the mother of one of the Victims
- Negede Teklemariam - attempted to approach the family members of the President
of Eritrea, after having been informed by prison officials that only the President could
order the release of the Victims. fiJI
62. The Commission observes that none of the attempts to resolve the matter, which
consisted of diplomatic efforts and other extra judicial engagements, would ordinarily
be considered as local remedies within the meaning of Article 56 (5). The Commission
recalls from Cudjoe 11 Guana that the remedies pursued must be of a "judicial nature".32
63. The Complainant however submits that the relatives of the Victims have been unable
to solicit legal representation to pursue local remedies due to the fear that their
representatives or the victims would be targeted by the Respondent State. One witness
states in relation to a lawyer, that he attempted to solicit, that "the lawyer was so
scared because the government considers the religious freedom of Jehovah's
Witnesses as a very sensitive issue and that the lawyer would not want to be seen as
taking sides with Witnesses or fighting for their legal rights". 33 In a statement by the
sister of one of the Victims, Isaac Mogos, she states that "Isaac was very fearful
knowing that if I did anything I could bring harm, if it got back to the officials ..."34
64. In view of this, the Commission recalls from knuara v Gambia that "if the a.pp .
~
cannot tum to the judiciary of his country because of generalized fear for
his
life
(or
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28 Communication
340/07 - Nixon Nyikadzino (represented by Zimbabwe Human Rights N..,
~
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Forum) v . Zimbabwe (2012) ACHPR para. 81.
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29 Communication 275/03 - Article J9 v Eritrea (2007) ACHPR, para. 69.
\~ ~
)0 Exhibit A "Ora I Submissions
on Provisional Measures".
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31 Doc 17, paras. 12, 13.
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32 Communication 221/98 - Alfred B. Cudjoe v Ghana (1999) ACHPR, para. 14.
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even those of his relatives) local remedies would be considered to be unavailable to
him".35 The Commission has also affirmed this perspective in Open Socien} justice
Initiative v. Cate d'lvoire by stating that "in situations where referral to local remedies
in itself creates fear and constitutes a risk to the life of the Complainant or the victim,
such remedies are deemed unavailable't.v
65. The Complainant has made submissions demonstrating the risk of harm to the Victims
or their legal representatives, if local remedies were to be pursued any further. In light
of evidence submitted by the Complainant, including corroborative evidence
documenting reports of widespread arbitrary arrest and detention, and a lack of due
process,37 the Commission finds credible grounds to conclude that there is indeed a
legitimate risk of reprisal that renders local remedies unavailable to the Complainant.
66. As expressed earlier, whereas local remedies are to be ordinarily pursued by the
author of the Complaint, there are however certain circumstances that give rise to the
State's obligation to initiate local remedies independent of the actions of the author.
CommonJy, these circumstances are triggered in instances of detention or ill
treatment. In such circumstances, States have a duty to promptly present detained
persons before a judicial officer and investigate allegations of ill treatment.P
67. In Abdel Hadi, AU Radi & Others v Republic of Sudan the Commission held that
"allegations of torture against public officials impose an immediate duty on the State
to initiate a prompt, impartial and effective investigation in order to establish the
veracity of these allegations and bring the perpetrators to justice, if the allegations are
founded". 39 The Commission further stated that "what is important is whether the
Respondent State was aware of these allegations and whether it took steps to
investigate the allegations" .40
68. In this particuJar instance, the Victims are detained incommunicado in a facility within
the control of the Respondent State. The Commission also takes note of submissions
that four persons have died in custody due to the conditions of detention. The
Respondent State has furthermore faiJed to heed the caU of several organizations,
including the Human Rights Council and the Human Rights Committee, that
highlighted the conditions of detention, and allegations of ill treatment." In light of
this, the Commission can come to no other conclusion than to determine that the
Respondent State has failed to take the minimum steps necessary to address the issue
See note 23, [awara v Gambia, para. 35.
Communication 318/06 - Open Society Justice Initiative v. C6te d'Ivoire (2015) para. 41.
31 United Nations Human Rights Committee, Report of the detailed findings of the Commission of Inquiry on
Human Rights in Eritrea, advanced version, 5 June 2015 A/HRC/29/CRP.
1; UNHRC, List of issues in the
absence of the initial report of Eritrea, CCPR/C/ERJ./Q/1,
17 August 2018.
38 ACHPR, Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa (2019); Resolution
On Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading
Treatment or Punishment In Africa, The Robben Island Guidelines (2008).
39 Communication 368/09 - Abdel I ladi, Ali Radi & Others v Republic of Sudan (2013) I\CHPR para. 45
)5
:\6
40 As above.
~
I Juman Rights Councii "Detailed findings of the commission of inquiry on human rights n Eritrea"
(A/liRC/32/CRP.1)
8 June 2016; Human Rights Council "Report or the Special Rapporteur 011 tI ,nuation of
human rights in Eritrea, Sheila B. Keetharuth" 13 May 2014 (A/HRC/26/45;
Human Riglt . Committee
"Concluding observations on Eritrea in the absence of its initial report" 28 March 2019 (CCPR/ jtRlACO/1).
41
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at hand, even in the face of credible allegations that should have prompted it to act. In
view of this, the Commission recalls from Abdel Hadi 'll Republic of Sudan that "By
failing to initiate an investigation into the Complaints, the Respondent State thereby
made any local remedies that theoretically existed, ineffective"."
69. In light of the Respondent State's duty to initiate local remedies, the Commission notes
the submission of the Complainant that local remedies are unduly delayed. The
Commission observes that there is no specific time at which point local remedies
would be considered unduly delayed, and that such a decision must be taken on a
case-by-case basis. In Liesoelh Zegveld and Mussie Ephrent v Eritrea, the Commission
held that domestic remedies had been unduly delayed because "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". 43 The Commission thus determines a jortori that local
remedies are also unduly delayed in this particular instance, as the Victims remain
detained incommunicado since their arrest on 17 September 1994.
70. The Commission now examines the Complainant's submission that local remedies are
unavailable and ineffective due to the Respondent State's policy against Jehovah's
Witnesses. The Complainant argues that the actions of the Respondent State against
Jehovah's Witnesses, including the Victims, amount to serious and massive violations,
within the meaning of Article 58 of the Charter.
71. In COHRE v Sudan, the Commission took into account the "scale and nature'l+' of the
alleged violations to determine the existence of serious and massive violations, which
is similar to the elements of "scale and importance" used in Rule 2 of the
Commission's Rules of Procedures.e
72. Concerning the nature of violations, the international consensus seems to suggest
distinguishing rights based on their character or status. In defining a serious breach of
an international obligation, the International Law Commission (ILC) refers to the
"character of the obligation breached, which must derive from a peremptory norm of
international law". 46 The Inter-American Court on Human Rights, (Inter-American
Court), has also considered factors such as the extent of the State's participation in the
violations and the consequences or impact of the violations on the victims to
determine the seriousness. In Rochela Massacre 11 Columbia, it observed that "one of the
main factors to augment the seriousness of the events ... [is that] ... State agents who
were members of the armed forces were involved in the massacre't.v The European
Court of Human Rights (European Court) also adopts a similar approach, taking into
42 See note 35, para. 48.
Communication 250/02 - Liesbcth Zegveld and Mussie Ephrern v Eritrea (2.003) para. 27.
Communication 279/03-296/05 - Sudan Human Rights Organisation & Centre on Housing Rig!
Evictions (COHRE) v Sudan (2009) AO IPR, para. 100.
tS Rule 2 of the Rules of Procedure defines "serious or massive violations" as "grave human rig
distinguished by their scale and importance".
·16 International Law Commission "Draft articles on Responsibility of States for Internationall
with commentaries" (2001) Article 40.
47 Rochela Massacre v Columbia (2007) lACHPRjudgment,
para. 79.
43
H
consideration the "general attitude of the authorities" towards the violations and the
victims. 48
73. Generally, international jurisprudence has understood acts of genocide; slavery and
slavery-like practices; summary or arbitrary executions; torture and cruel, inhuman,
or degrading treatment; enforced disappearance; arbitrary and prolonged detention;
deportation or forcible transfer of population; and systematic discrimination, as
falling within the scope of what are considered to be serious violations.'?
74. In this particular instance, the Complainant alleges violations of Articles 5, 6, 7, and 8
of the Charter, which prohibit acts of torture, cruel, inhuman, or degrading treatment;
prohibit arbitrary detention; guarantee the right to have a cause heard; and ensure the
right to freedom of conscience and religion. As can be recalled from the facts, the
Victims have been detained incommunicado since 17 September 1994, well over 25
years, and their relatives have only been able to gain access to them informally on a
few occasions through the help of SQIDeprison staff. In detention, the Victims have
also been denied medical attention, and subjected to ill-treatment, including physical
abuse.
75. In view of the rights allegedly violated, which include fundamental rights, the manner
of the alleged violations, which are prolonged and egregious, the attitude of
authorities, which suggests knowledge of the acts, and the impact of these violations
on the wellbeing of the Victims, the alleged violations can be properly characterized
as "serious".
76. In relation to the scale of violations, Article 58 of the Charter captures this through the
words "massive". The term "massive" refers to violations that occur on a large scale,
as can be observed in circumstances where a large number of individuals are affected
by the viola tions and a broad range of rights ace violated. In Free Legnl Assistnnce Group
v Zaire, the Commission took into consideration "the vast and varied scope of the
violations alleged and the general situation prevailing in Zaire."so The Commission
also affirmed in AnmeshJ V Sudan, that " ... the great numbers of people involved
renders such remedies unavailable in fact, or, in the words of the Charter, their
procedure would probably be unduly prolonged.Pt
77. From the jurisprudence of the Commission, the term "massive" seems to be indicative
of a sufficiently large number of victims likely to over burden the judicial system or
Moldovan and Others v Romania (2005) ECHR Judgment, paras. 108 -109.
UN Sub-Commission on Prevention of Discrimination and Protection of Minorities "Study Concerning The
Right To Restitution, Compensation And Rehabilitation FOI Victims Of Gross Violations Of Human Rights And
Fundamental Freedoms" (2 July 1993) E/CN.4/Sub.2/1993/8,
para. 13.
50 Ccommunications
25/89, 47/90, 56/91, 100/93 - Free Legal Assistance Group, Lawyers' Committee (or
Human Rights, Union lnterafricaine des Droits de l'Homme, Les Temoins de Jehovah v Zaire (1995) AC:H~
para. 37.
,~
SI Communication
48/90-50/91-52/91-89/93
- Amnesty International Comito Loosli Bachel~d~ Lawyers'
~
Committee for Human Rights, Association of Members of the Episcopal Conference of East
i'Cav Sudan )'"
(1999) ACHPR, para. 39.
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cause undue delay to the dispensation
brought before local courts.
of justice, should each separate violation be
78. In this particular instance, the Complaint is brought on behalf of three Victims,
although the Complainant also submits that there are fifty-three (53) other Jehovah's
Witnesses in detention. The Complainant also submits that the Respondent State is
targeting Jehovah's Witnesses as an entire group, although there have been no other
specific submissions detailing the scope and number of [ehovah's Witnesses affected
ill Eritrea. Whereas the Commission has reason to believe that serious violations exist,
sufficient information has not been submitted to allow it to decide "massive"
violations. Specific allegations and evidence remain confined to the situation of the
three Jehovah's Wi messes. in which the Complainant has demonstrated the direct
effect of the Respondent State's actions on their rights. General information has
however been provided, and the effects of this information will be discussed below.
79. Notwithstanding the above, the Commission notes that the condition of "a series of
serious or massive violations" under Article 58 of the Charter is not-cumulative.
80. Beyond a determination of serious or massive violations premised on the nature or
scale of violations, what truly qualifies violations as falling within the scope of Article
58 and which gives the violations a systematic character, is the existence of a certain
level of knowledge, intent or will attributable to the State. This qualification is
captured by the term "series".
81. In Ireland v UK, the European Court summarized this understanding through its
definition of the term" administrative practice" as" consist[ing] of an accumulation of
identical or analogous breaches which are sufficiently numerous and inter-connected
to amount not merely to isolated incidents or exceptions but to a pattern or system" .52
The ILC has further qualified systematic violations as acts carried out in an organized
and deliberate manner. 53
82. In this instance, witness statements detail the harassment and arrest of Jehovah's
Witnesses during prayer meetings. The Complainant has also made reference to the
Report of the Special Rapporteur on the situation of human rights in Eritrea and the
Conunission of Inquiry on Human Rights in Eritrea by the Human Rights Council,
which appear to support their assertions as to the possible systematic persecution of
Jehovah's Witnesses.P' The Commission of Inquiry noted that "Jehovah's Witnesses
have been targeted throughout Eritrean history primarily because of their
conscientious objection to military service" .55 The Commission also takes note of the
Presidential Decree of 1994, which stripped Jehovah's Witnesses of their civil liberties
and rights, including the right to Eritrean nationality.
S2 Ireland
v. the United Kingdom (1978) ECHR Judgment, para. 159.
Articles, Article 40.
54 Human Rights Council "Report of the Special Rapporteur on the situation of human righ
B.Keetharuth" 13 May 2014 (A/rffiC/26/45.
55 Human
Rights Council "Detailed findings of the commission of inquiry on human
(AjHRC/32/CRP.1)
8 June 2016.
53 See note 46, TLC Draft
83. The totality of the evidence before the Commission demonstrates that the treatment
of the Victims is not merely an isolated incident, but that other Jehovah's Witnesses
who also refuse military conscription are likely to be met with the same treatment, as
demonstrated by the alleged detention of fifty-three (53) other Jehovah's Witnesses.
84. In view of the above, it must be noted that the conclusion drawn is not a prejudgment
on the Merits, should the Communication reach that stage. Whereas a prima facie
standard suffices for determining the existence of serious violations at this stage, a
higher threshold will be required to determine responsibility for the alleged
violations.
85. In view of findings as to the existence of serious violations, the Commission recalls
from its previous decisions that in such circumstances, complainants are not required
to exhaust local remedies. The rationale for this is based on the extent to which
remedies may be deemed practically available and the actual prospects of success
when the alleged violations are committed either with the consent or acquiescence of
the full machinery of the State. There is also a strong assumption that due to the nature
of the alleged violations, the State is sufficiently aware and is either unwilling or
unable to take the necessary measures to address them. In such situations, and as held
in Amnesty lnternational II Sudan complainants shall not be expected to exhaust local
remedies where it is "impractical or undesirable".56
86. The Commission also observes that the European Court held in Aksoy 1.J Turkey that
the rule of exhaustion of local remedies is inapplicable where there exists "an
administrative practice consisting of a repetition of acts incompatible with the
Convention and official tolerance by the State authorities has been shown to exist, and
is of such a nature as to make proceedings futile or ineffective". 57 The Inter American
Court has similarly held in veuisquez Rodriguez 11. Honduras that"if there is proof of the
existence of a practice or policy ordered or tolerated by the government, the effect of
which is to impede certain persons from invoking internal remedies that would
normally be available to others ... resort to those remedies becomes a senseless
formality" .58
87. For the foregoing reasons, the Commission finds that local remedies are unavailable
and ineffective.
Submission uiithin a reasonable period (Article 56(6»
88. Artic1e56 (6) requires that Communications 'are submitted toithin a reasonable period from
the time local remedies are exhausted or from the date the Commission is seized of the matter',
Complaints within a reasonable period of time. The time period for determining what
constitutes a "reasonable period" starts to run from the date domestic remedies have
been exhausted. As earlier expressed, however, the Commission has determined that
local remedies in this particular instance are unavailable and ineffective. In such
circumstances, the Commission held in Tsaisu Tsikata v Ghana, that "in the case of
unavailability or prolongation of local remedies ... [the time period] ... will be from the
date of the Complainant's notice thereof", specifically, from when the complainant
became aware of the unavailability of local remedies.s? This was furthermore affirmed
in Dr. Farouk Mohamed Ibrahim v Sudan when the Commission stated that the time
period begins to run when "the Complainant immediately realizes that local remedies
are not available, sufficient or effective".60
90. The aforementioned two cases were however considered within the context of alleged
violations that had come to an end at the time the respective Complaints were
submitted to the Commission. In contrast, the alleged violations in this particular
instance are of a continuous nature, as the circumstances of the Victims remain
unchanged since their arrest on 17 September 1994. In such circumstances, the rational
conclusion seems to favor an exclusion of Article 56 (6), in view of the difficulty of
determining at which point the time period starts to run when the alleged violations
are ongoing even as the question of submission within a reasonable period is being
considered.
I
.
91. Ordinarily, when local remedies are either unavailable or ineffective, complainants
are expected to submit their Complaint to the Commission as soon as they become or
ought to have become aware that local remedies are unavailable or ineffective. This
usual standard may not however be entirely suited to continuous violations, where
violations are in effect happening ona daily basis. Furthermore, even determining the
exact point at which a complainant knew or ought to have known that domestic
remedies are unavailable or ineffective is a challenge.
92. The Commission notes that it does not have a wealth of jurisprudence on the
relationship between continuous violations and the application of Article 56 (6) of the
Charter. Jurisprudence has rather tended to focus on instantaneous acts. InJ.E Zitha &
P.].L.Zitlln v Mozambique, the Commission differentiated these concepts by observing
that "in case of a continuing act, the violation occurs and continues over a period of
time until the violation ceases ... [and] ... in case of an instantaneous act, the violation
itself does not continue over time, although the completion of such an act might take
some time".61 These observations were however made within the context of the
Commission's rationae icmporis jurisdiction. The Commission nevertheless notes in
Open Socieh; Justice initiative v. Cote d'Iuoire that "Moreover, the Communication was
filed at a time when the alleged violations were continuing, which leaves out the
application of the condition of seizure of the Commission within a reasonable period
of time after exhausting local remedies" .62 No further exposition was however
provided.
93. In view of the foregoing, the Commission turns to the jurisprudence of other
comparable institutions for inspiration, in accordance with Article 60 and Article 61 of
the Charter.
94. The European Court on Human Rights (European Court) defines continuous
violations as "a state of affairs which operates by continuous activities by or on the
part of the State which render the applicants victims".63In relation to the application
of its six months cut off period for the submission of Complaints, the European Court
has held that this time period only starts to run when the alleged violations have
ceased, and that the six month time period in essence starts to "run afresh" each day.
64
95. The European Court has nevertheless recognized that a situation of continuous
violations may not indefinitely postpone the application of its six month time period.
In this regard, the European Court has stated that "where time is of the essence in
resolving the issues in a case, there is a burden on the applicant to ensure that his or
her claims are raised before the Court with the necessary expedition to ensure that
they may be properly, and fairly, resolved". 65 This standard has typically been applied
to situations in which the State has failed to conduct investigations into the alleged
violations, for instance, in cases of ill treatment or torture and enforced
disappearances.w Ordinarily, the European Court has applied a lenient standard on
complainants, and as such, it has held that
so long as there is some meaningful
contact between relatives and authorities concerning Complaints and requests for
information, or some indication, or realistic possibility, of progress in investigative
measures, considerations of undue delay by the applicants will not generally arise",67
If •••
96. The Inter American Commission on Human Rights, (Inter American Commission),
has also affirmed that the requirement to submit a Complaint within six months from
the exhaustion of local remedies under Article 46 (1) (b) of the American Convention
on Human Rights does not "apply where the allegations concern a continuing
situation-where the rights of the victim are allegedly affected on an ongoing basis".68
The Commission however notes that even in situations of continuous violations, the
condition to submit within a reasonable period of time is not entirely dispensed with.
Instead, the Inter American Commission applies Article 32 (2) of its Rules of
Procedure, which allows it to determine what amounts to a reasonable period on the
basis of "the date on which the alleged violation of rights occurred a~.
circumstances of each case".
o~....
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As above, pam. 269.
68 Horacio Verbitsky et al. v , Argentina (2004) lACHR, para. 47
67
19
97. For example, the Inter American Commission declared Luna v Peru inadmissible for
failure to comply with Article 32 (2), notwithstanding its finding that
Noncompliance toitli a filial judicial decision constitutes a continued violation
by the persisting States and is a permanent infringement of Article 25 of the
Convention, which establishes the right to effective judicial protection.
Consequently, tile requirement pertaining to the period for lodging petitions,
as specified in Article 46(1)(b) of the American Convention, does not apply in
these cases. 69
98. The Inter American Commission went on to further state that
Gillen that the exception to the requirement of prior exhaustion of domestic
remedies applied i71 this case, the Commission must determine if Mr. Diaz
Luna lodged his petition within a reasonable period of time, pursuant to the
terms of Article 32 of its Rules of Procedure of the Commission/"
99. In view of the foregoing, the Inter American Corrunission then concluded that" ... the
time elapsed between when the petitioner learned of the respondent company's
refusal to comply with the entire judgment and his lodging of the Complaint-approximately six years-Is not a reasonable term in this case".n
100.
On the other hand, in Renata Ticona Estrada 1.1. Bolivia, involving enforced
disappearance, which it recognized as a continuous violation, the Inter American
Commission stated that "taking into account the date of the alleged acts, the
possibility of a situation of continued violation of human rights, and the status of the
various domestic remedies used in Bolivia, the Commission considers that the petition
under examination was submitted within a reasonable period of time."n This is
notwithstanding that investigations at the domestic level into the disappearance of the
victims began on 7 April 1983, and the Complaint was received by the Inter-American
Commission on 9 August 2004.
101. The Commission notes that the European and American systems diller in their
approaches to the relationship between continuous violations and submission within a
reasonable period of time. The European Court has in principle held that continuous
violations preclude the application of its six months cut off period, and that the
exceptions to this principle are found in situations in which "time is of the essence in
resolving the issues in a case", typically relating to the duty of States to investigate
certain acts or events.
nevertheless remains an important factor, though not the sole determinant, like in some
situations at the European Court.
103. In light of the foregoing, and taking into account the continuous nature of the alleged
violations and the particular circumstances of the present matter, the Commission is of
the view that the Communication was submitted within a reasonable period of time.
The Commission in particular observes that the victims continue to be detained
inconununicndo, with no available or effective local remedies, and in such an instance, it
would be contrary to the values of the Charter if the Commission were to turn away the
Complainants.
104. For these reasons, the Commission finds that the conditions of Article 56 (6) have been
satisfied.
Previously
settled matters
(Article 56 (7»
105. Communications shall only be considered if they 'do not deal with cases which have been
settled by these Stntes involved ill accordance witll the principles of LIreCharter of tile United
Nations, or lire Charter of tire Organization of Afrlcml Ul1ih) or tire provisions of tile present
Charter'.
106. The Commission has understood the term "settled" as referring to two cumulative
conditions, firstly, in relation to the nature of the institution that has been seized of the
matter, and secondly, as to the nature of the conclusions reached by that institution. In
COHRE t) Sudan, the Commission held that the institution must have a "human rights
mandate" and be "capable of granting declaratory or compensatory relief to victims, not
mere political resolutions and declarations". '7:1 In relation to the nature of the conclusions
reached, the Commission held in J laregetooin Gabre-Selaseie 11 Etitiopin that the institution
must have "taken a decision which addresses the concerns, including the relief being
sought by the Complainanl. .. [and that] It is not enough for the matter to simply be
discussed by these bodies". 7-1
107. The Complainant makes reference to the "Detailed findings of the commission of inquiry
on human rights in Eritrea" by the Human Rights Council, whose mandate was to
"investigate all alleged violations of human rights in Eritrea"_75 The Complainant also
references the" Report of the Special Rapporteur on the situation of human rights in
Eritrea, which "focuses on two main issues, namely, the indefinite national service and
arbitrary detention". 76 The Complainant further submits the "Concluding observations
on Eritrea in the absence of its initial report" by the Human Rights Committee, which
7.' Communication
279/03-296/05, n44 above, paras. 104, 105.
Communication 301/05 - Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue O(fjc~
Ethiopia (2013) ACHPR, para. 117.
."
75 Iluman Rights Council "Detailed
findings of the commission of inquiry on human ri, ts 01 Eritrea"
(A/HRC/32/CRP.1) 8 June 2016.
76 Human Rights Council "Report of the Special Rapporteur on the situationof
human right
B. Keetharuth" 13 M'lY 2014 (A/HRC/26/45).
7~
'~
".
•
"considered
Eritrea" 77
the situation of civil and political rights under the Covenant [ICCPR] in
108. The Commission notes that these reports highlighted the general state of human rights
in Eritrea and made recommendations accordingly, as opposed to granting declaratory
or compensatory relief to the Victims. The mere recognition of the situation of the Victims
and other Jehovah's Witnesses does not amount to a settlement of the matter. With
regard to the Human Rights Committee, the Commission notes that the matter has not
been examined in the context of its individual Complaints procedure, although the
Conunission has already ruled that the Human Rights Council is not one of the
mechanisms referred to in article 56(7),78
109. For these reasons, the Commission finds that the conditions of Article 56 (7) have been
fulfilled and declared the Communication admissible.
MERITS
Summary of Parties' Submissions
A. Complainant's
(i)
Submissions
Alleged uiolation of Article 5 of the Charter
110.
The Complainant alleges that the Respondent State violated article 5 of the
Charter which protects individuals from torture and other forms of degradation 01'
exploitation.
111.
The Complainant avers that the victims were subjected to various forms of
physical and psychological abuse. They aver that the physical abuse to which the
victims were subjected to includes being starved, fettered with hands and feet tied
together behind their back, exposed to the sun for days and seriously beaten, and
detention in overcrowded containers in extremely hot temperatures. Psychological
abuses include death threats, isolation, mock executions and being forced to dig their
own graves. It is further submitted that the victims were severally treated with
disrespect and subjected to exploitation and degradation. During their arrest, it is
alleged that some of the victims were not given the chance to put their clothes and
were taken away in their pyjamas and no shoes on,79
112.
The Victims were held incommunicado in remote uninhabitable areas of the
territory of Eritrea for over 26 years and compelled to perform forced manual labour
in extreme weather conditions, without adequate shelter, clothing, food, water or
'77Human Rights Committee "Concluding observations on Eritrea in the absence of its initial reB rr' 28 March
2019 (CCPR/C/ERJ/CO/l).
t
78 Communication
279/03, 296/05 - Sudan Human Rights Organization & Centre on Ho ~g ~;ghts and
u
medical care. This treatment, according to the complainant, amounts to physical and
psychological torture, and, as such, to violations of article 5 of the Charter.
113.
The Complainant further avers that the victims were denied contact with their
families, which, according to the Complainant, is inhuman treatment as was found in
previous cases decided by this Commission such as in Amnesb] Iniernational and others
v Sudan80 and in Article 19 v Eritrea."
114.
Citing a decision by the ECHR82, the Complainant submits that the duration of
detention in itself satisfies the elements of Article 5 as exploltative and degrading.
(ii)
Alleged violations
0/ article 60/ the Charter
115.
The Complainant alleges that the Respondent State has violated Article 6 of the
Charter which provides: "No one may be deprived of his freedom except for reasons and
conditions previously laid down by law. In particular, no one may be arbi·trarily arrested or
detained."
116.
The Complainant avers that the victims' right to liberty and security of person
was taken away by being abducted by unknown persons in the military uniform of
the Respondent State, acting under Government authority and control without
warrant, notice, explanation or any recourse to court, administrative or judicial
process for review.
117.
The Complainant submits that, by virtue of the Article 6 prohibition of arbitrary
arrest and detention of individuals, people "must not be deprived of liberty for any
longer than is absolutely necessary and justified by law and must be capable of being
restored when the deprivation is not justified."
118.
They contend that the burden of proof lies upon the State depriving a victim of
liberty to establish that the circumstances fall within the four corners of Article 6 and
that its exercise was legitimately within the conditions previously laid down by law
and that these conditions are conclusively established.
119.
The Complainant avers that the victims were arrested at night allegedly by
officials in official vehicles, and without any documents or warrants.s' It is alleged that
in subsequent statements, officials denied knowing or detaining the victims+' The
Complainant leans on the ECHR position in ECHR EI-Masri v. the former Yugoslau
Republic of Mncedonia85 that "the unacknowledged detention of an individual is a
so Communication 48/90- 30/91- 52/91- 89/93, Amnesty International, Comite Loosll Bachelard, Lawyers'
Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v. Sudan
(1999) ACHPR, para. 54.
81 Communication
275/03, Article 19 v. Eritrea (2007) ACHPR, para. 102.
92 ECHR Moxamed Ismaaciil and Abdirahman Warsame v. Malta, nos. 52160/13 and 52165/13, 12 Januarf2
para. 79.
83 Complainant's Submissions on Merits, 28 September 2020, para. 53. See also Affidavit, Swo
tement by 'l...
former detainee; Doc 20, para. 8.
~
8<1 Affidavit, Sworn Statement by the brother of one of the victims; Doc. 18, Affidavit·, para. 4. 8
I
.)
ss El-Masri v. the former Yugoslav Republic of Macedonia [CCI, no. 39630/09, 13 December
fl, pa"ra. 233.
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complete negation of these guarantees and a most grave violation of Article 5 [of the
ECHR]" and that having assumed control over an individual, the authorities have a
duty to account for their whereabouts.w
120.
The Complainant contends that the conduct of the Respondent State, in
abducting and detaining the victims without due process also constitutes a violation
of Article 6. They submit that vainly waiting for over a quarter of a century for the
State Party to charge or try the victims, without judicial protection or remedy is
arbitrary action sanctioned under Article 6.87
(iii)
Alleged uiolations of article 7 of the Charter
121.
The Complainant contends that the victims were denied the right to be heard
by a court or to appeal their incarceration, presumed guilty without trial or defense,
refused access to legal counsel and incarcerated indefinitely in inhumane conditions,
for no lawful reason.
122.
They aver that the Victims were held in detention for 26 years without ever
being presented before a judge and having their case heard, which they submit is a
violation of article 7(1)(a). They submit that, as such, the victims have been punished
as though proven guilty without charge, trial, conviction or sentencing, which
contravenes the principle of presumption of innocence as enshrined in Article 7(1)(b).
The Complainant cite Haregeuioin Gabre-Selassie and lHROA (on be/mi/of former Dergue
Officials u. Ethiopia, in which the Commission expounded the meaning of Article
7(1)(b) by holding tha t "the deprivation of a person's liberty for a disproportions te
time is the same as serving a sentence iJ1 advance of the judgment."88
123.
The Complainant also claims violation of the right to defense protected under
article 7(1)(c) because the Victims were never provided accessed to a lawyer. The
Complainant further contends that the detention without any charge or trial is a
violation of the right to be tried within a reasonable time by an impartial court or
tribunal and contravenes the prescript of article 7(1)(d).
124.
Finally, the Complainant submits the fact for the Respondent State's to hold the
victims in detention wilhout charge or conviction under any offence known to law
violates Article 7(2). They contend that only the law may define a crime and prescribe
a penalty, not an executive fiat.
(iv)
Alleged violations of article 8 of the Charter
125.
The Complainant alleges that the Victims were denied the right to freedom of
conscience and religion and only allowed release if they deny their conscience and
accept to serve in the military of Eritrea. They contend that their abduc;tiO~
detention are causally related to their religious beliefs as Jehovah's Witnes 1;1$'. This, so
80Complainant's Submissions on Merits, 28 September 2020, pard. 47.
M' Complainant's Submissions on Merits, 28 September 2020, para. 49.
88 Communication 301/05, n74 above, para. 209.
o~,'
goes the Complaint, is demonstrated
onJy if they renounce their faith.
by the State's insinuation to release the victims
The Complainant argue that the victims refused to carry arms, learn the art of
war or join the military based on their Bible-trained conscience, and that as such, they
are conscientious objectors to military service.s? The Complainant further maintains
that the Respondent State's unlawful purpose in doing so is to punish and intimidate
the victims to renounce their faith and violate their conscience and that they are being
tortured because of the Responding State's intolerance of their faith. They opine that
instead of fulfilling its obligation to protect the conscience of its citizens, the State of
Eritrea forcibly pressures the victims by torture and other abuses to deny their
conscience. 90
126.
The Complainant submits that the measures taken by the State Party which they
contend are unlawful, aim to intimidate and coerce the victims, which is an affront to
their forum iniernum. They opine that the victims' right to conscientious objection
belongs to the forum iniernum of religious freedom guaranteed under Article 8 of the
Charter, and as such, cannot be subjected to any limitations. Hence, according the
Complainant, the unlawful measures taken by the State Party to intimidate and coerce
the victims is an affront to their forum intemUIII.91
127.
B. State failure to submit arguments on merits
The Commission observes that only the Complainant has made submissions on
both Admissibility and Merits, and despite being duly notified to do so on several
occasions, the Respondent State has failed to make any submissions. The Commission
decided in Free Legnl Assistnnce Group, Laurfers' Committee for Human Rights, Union
Intemfricaine des Droiis de l' Homme, Les Temoins de Jehovnh v. DRC that: "Since the
Government of Zaire does not wish to participate in a dialogue, the Commission must,
regrettably, continue its consideration of the case on the basis of facts and opinions
submitted by the complainants alone."92 The Commission will proceed to determine
the case on the basis of information and evidence available to it, as reconfirmed in
Michael Majllru v. Zilllbabwe93 and elsewhere. The Commission is left with no
alternative but to proceed and deliver a decision on the merits based on the
submissions of the Complainants.
128.
The Commission's
Analysis on the Merits
Central to this communication is religion, its underlying principles and beliefs,
as well as its manifestations and behaviors displayed vis-fl-ms State policy. Freedom
of religion seems indeed to lie in the background a nd to underpin the entire Complaint
129.
Complainant's Submissions on Merits, received on 29 September 2020, para. 85.
90 Complainant's Submissions 011 Merits, received on 29 September 2020, para. 94.
91 Complainant's Submission son Merits, received 29 September 2020, para. 86 and 89.
,..,
92 Communications 25/89- 47/90- 56/91-100/93
Free Legal Assistance Group, Lawyers' Committee for Burnap
Rights, Union Interafricaine des Droits de l'Hornme, Les Temoins de Jehovah v. DRC (2017) A p~ ~aras. 40~
See also Communication 48/90-50/91-52/91-89/93;
Amnesty International, Comite Loosli Ba~ ~ardl. Lawyers'
Committee for Human Rights, Association of Members of the Episcopal Conference of East
ca v.sudan.
93 See Communication 308/05 - Michael Majuru v Zimbabwe (2008) ACHPR, para 56
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and alleged violations. It is therefore crucial to bear in mind the underlying alleged
violation of Article 8 of the Charter across the spectrum of other violations allegedly
committed by the Respondent State.
Alleged violation of Article 5
130.
The Complainant al1eges that the Respondent State violated the provisions of
Article 5 by treating the Victims, jointly and severally, with disrespect and subjecting
them to exploitation and degradation. They allege that the Victims were held
incommunicado in remote uninhabitable areas of the territory of the Respondent State
for over 26 years and compelled to perform forced manual labour in extreme weather
conditions without adequate shelter, clothing, food, water or medical care. In
addition, it is alleged that the victims were subjected to beatings, forced to walk naked
while others are watching, being forced to dig their own graves and subjected to mock
execu tions.
131.
Article 5 of the Charter provides: "Every individual shall have the right to the
respect of the dignihJ inherent in a human being and to the recognition afhis legal status. ALL
forl11sof exploi tation and degradation of man, particularly slaven}, slave trade, torture, cruet
inhuman or degrading punishment and treatment shall be prohibited."
132.
Whether a certain action or pmission by the State constitutes a violation of
article 5 of the Charter is to be assessed against the circumstances of each case. 94
133.
It is stating the obvious that acts of physical violence and other unjustifiable
physical conditions inflicted on detainees with the aim to punish, intimidate or
constrain them for some unlawful motive is torture. In Krishna Achuthan (on behalf of
ALeke Banda), Amnesty lnternntional (on behalf 0/ Orton and Vera Chirtoa) v. Malawi, the
Commission ruled that "the conditions of overcrowding and acts of beating and
torture that took place in prisons in Malawi," as well as "excessive solitary
confinement, Shackling within a celt extremely poor-quality food and denial of access
to adequate medical care", were violations of article 5.95
134.
The evidence before the Commission indicates that the victims were held in
dire conditions, including detention in crowded containers with no adequate
ventilation, and denial of adequate food and medical care. The victims were also tied
up and subjected to beating and humiliation such as walking naked while other
persons are watching. On multiple occasions, they were intimidated through sham
executions by means of rifles and asked to dig their graves. Despite all this, no criminal
proceedings were instituted against them.
9~ Curtis
Doebbler v Sudan, para. 37.
Communication 64/92-68/n-78/92_8AR
Krishna Achuthan (011 behalf of Alek
International (on behalf of Orton and Vera Chirwa) v. Malawi (1995) ACI-IPR, para. 7.
9S
135.
Furthermore, this Commission has determined in the case of Ken Saro Wiwn,96
that "Article 5 prohibits not only torture, but also cruel, inhuman or degrading
treatment. This includes not only actions which cause serious physical or
psychological suffering, but which humiliate the individual or force him or her to act
against his will or conscience."97
136.
With regard to the fact that the victims were held incommunicado for a long
period, the Commission notes that its Guidelines on the Conditions of Arrest, Police
Custody and Pre-Trial Detention in Africa provide that all persons under arrest have
a right to contact and access a family member or another person of their choice, and if
relevant consular authorities or embassy.98. In its jurisprudence, the Commission has
already determined that "incommunicado
detention is a gross human rights
violation" and that "Of itself, prolonged incommunicado detention and/ or solitary
confinement could be held to be a form of cruel, inhuman or degrading punishment
and treatment .... 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".99
137.
The Victims in this Communication were not allowed family visits for several
years. The mother of one of the Victims made several attempts to visit when they were
transferred to Sawa, but over and over the authorities refused.1OO It was only after
seven, ten and even 15 years respectively that some friends, the mother of the Victims
and the sister were allowed to visit.'?' Before the father of one victim died, he was
never given the opportunity to visit his son,102and it is also clear that the Victim did
not receive permission to attend his father's funeral, which definitely has contributed
to aggravating the agony.
138.
It is the view of this Commission that depriving a person of the right to see
one's family is a psychological trauma difficult to justify, and constitute inhuman
treatment.103 The Commission has held in Article 19 v Eritrea, that Eritrea had violated
Article 5 of the Charter "by holding the journalists and political dissidents
incommunicado without allowing them access to their families" .11M This position must
be maintained in the circumstances of the present case, where the Victims were held
incommunicado for a continued period of 26 years.
96 Communication
137/94 - '139/94 - 154/96 - 161/97, International PEN, Constitutional Rights Project, Civil
Liberties Organisation and lnterrights (on behalf of Ken Saro-Wiwa Jnr.) v. Nigeria (1998) ACHPR.
97 Communication 137/94 - 139/94 - 154/96 - 161/97, International PEN, Constitutional Rights Project, Civil
Liberties Organisation and lnterrights (on behalf of Ken Saro-Wiwa [nr.) v. Nigeria (1998) ACHPR, para. 79
9~ Adopted during tbe551h Ordinary Session held in Luanda, Angola, (rom 28 April to 12 May 2014.May 12,2014, Principle
4: Procedural guarantees and Rights of detainees, section 4(4)(f).
9'1 Consolidated
Communication
143/95, 150/96 ConstitutionaJ Rights Project and Civil Liberties
Organisation/Nigeria; Communication 250/02: Liesbeth Zegveld and Mussie Ephrem / Eritrea, 2003; para. 55.
See also African Court on Human and Peoples' Rights, Application 002/2013, African Commission on Human
and Peoples' Rights v. Libya, 3 June 2016, paras. 84.
IOU Sworn Statement, Doc. 11, para. 6. See also para. 60 above.
101 Sworn Statements, Doc. 12. para. 10 and 13, Doc. 71. para 6 and Doc. 72, para. 6.
un Sworn Statement, Doc. 13, para. 15.
103 Communication
151/96, Civil Liberties Organisation v. Nigeria (1999) ACllPR, para. 27.
..t
104 Communication
275/03, Article 19 v Eritrea, 30 May 2007, para 102;See also Cornmunicati 'd 48/?O- 50/9152/91- 89/93, Amnesty International, Comite LoosJi Bachelard, Lawyers' Committee (0 Jiutruln Right1,
~
Association of Members of the Episcopal Conference of East Africa v. Sudan (1999) ACHPR, l-a,..54.
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In Communication 344/07 - George lynlLyori Kajiknbi v. The Arab Republic of Egypt
it was held "given that the separation of families was as a result of the process
followed by the State in removing the protesters; the trauma caused by the separation;
as well as the fact that the State had not responded to this submission; and the need
for a wide interpretation, the Commission finds that this amounts to inhuman
trea trnent. "105
139.
140.
In light of the foregoing, the Commission concludes that the State of Eritrea
violated article 5 of the Charter.
Alleged violation of article 6
141.
The Complainant alleges that the Respondent State violated the provisions of
Article 6, in that the victims were jointly and severaly denied their right to liberty and
security of the person, by being deprived of their freedom for no legitimate lawful
reason, alter being abducted by unknown persons in the military dress of the
Respondent State: acting under government authority and control without warrant,
notice, explanation or any recourse to court, administrative or judicial process for
review.
142.
Article 6 of the African Charter guarantees every individual the right to liberty
and security of the person. The African Charter specifically prohibits arbitrary arrests
and detention. It is not an absolute prohibition because the African Charter allows the
deprivation of this right through lawful means.
143.
The victims in this Communication were arrested during the night, abruptly,
and detained incommunicado and without charge, since they were arrested in
September 1994. TIle Victims were transferred from the Sawa Military Camp to the
Mai Serwa Prison, without any explanation or notification, which increased the fear
and uncertain.ty over their fate.
144.
The Victims were being held in custody and cut off from communication with
the outside world; with no access to their families or lawyers. They were detained in
military camps, even though they are civilians .. The Commission had already decried
similar circumstances in Communication 250/02, Llesbeih Zegueld and Mussie Ephrem 1)
Eritrea, and held that such a situation puts "their fate under the exclusive control of
the Respondent State" .1Ob
145.
The Commission held the same view in relation to the case of the Jehovah's
Witnesses in the DRC.: "The arbitrary arrests of believers of this religion likewise
constitute a contravention of Article 6.107
344/07 - George lyanyori Kajikabi v. The Arab Republic of Egypt, para.
Communication 250/02, Liesbeth Zegveld and Mussic Ephrem v Eritrea, 20 November 20 0 para. 53.
107 Communications
25/89- 47/90- 56/91-100/93 Free Legal Assistance Group, Lawyers' Con l!ttep for I Iuman
Rights, Union Interafricaine des Droits de l'Homme, Les Temoins de Jehovah v. DRC (2017)
R, paras. 46.
105 Communication
106
28
146.
The Commission in its Principles and Guidelines on the Right to Fair Trial and
Legal Assistance in Africa held that to be justified, the arrest must be 'pursuant to a
warrant, on reasonable suspicion or for probable cause' .108
147.
In Communication 368/09 Abdel Hadi, Ali Radi & Others v Republic of Sudan, the
Commission found that there was a violation because the arrest of the victim 'had no
basis in Sudanese legislation which requires that a person must have been suspected
or accused of committing an offence before a warrant of arrest may be issued' and
these arrests took place 'indiscriminately' and 'en masse'.l09
148.
The Commission considers that 'constant' arrests and detention without charge
or being brought before the courts is arbitrary.lw In Communication 225/98, Hurl-Latus
v Nigeria, the Commission found a violation of Article 6 in relation to two individuals
detained under the Nigeria State Security (Detention of Persons) Decree, because no
reasons were given for their arrest or detention and no charges were brought against
them.U''
149.
With regards to the authority to conduct arrests and detain people, the view of
this Commission is that arrest and detention must 'be under the authority and
supervision of persons procedurally and substantively competent to certify it' .112
150.
According to the Principles and Guidelines on Fair Trial and Legal Assistance
in Africa: Any form of detention and all measures affecting the human rights of a
person arrested or detained shall be subject to the effective control of a judicial or other
authority. In order to prevent arbitrary arrest and detention or disappearances, States
should establish procedures that require police or other officials with the authority to
arrest and detain to inform the appropriate judicial official or other authority of the
arrest and detention. The judicial official or other authority shall exercise control over
the official detaining the person."113 The Victims in the present Communication were
arrested and detained by military personnel with no legal authority to arrest and
detain civilians. There is no information on record to indicate that the decision to
transfer the Victims from the Sawa Military Camp to the Mai Serwa Prison was made
by an authorized judicial officer. No review of their detention by relevant judicial
authorities was ever requested or conducted during the entire period of their
detention.
1/
151.
The African Commission has indicated that the review by a court or judicial
officer serves several purposes, including determining whether there is 'sufficient
ACHPR, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, section
M(l)(b).
Communication
143/95,
150/96
Constitutional
Rights
Project
and Civil Liberties
Organisation/Nigeria,
15 November 1999, para 28.
109 Communication 368/09 Abdel Hadi, I\Jj Radi & Others v Republic of Sudan.B November 2013, para 80.
110 Communication
205/97, Kazeem Aminu v Nigeria, 11 May 2000, para 21.
III Communication
225/98, Hurl-Laws v Nigeria, 6 November 2000, para 42. Two individuals wer~leta~~
under the Nigeria State Security (Detention of Persons) Decree, No. 21984 (as amended in 1990).
"e '~
112 Communication
241/01: Purohit and Moore v The Gambia, 29 May 2003, as cited in Comm [cation 279/03c,,;296/05,1144 above, paras 172. Guidelines on the Conditions of Arrest, Police Custody and P . rial Detention
....\.
108
in Africa, April 2015, para. 3.
113 ACHPR,
Principles and Guidelines
DOC/OS(XXX)247, Section M(2)(h).
on the Right to a Fair Trial and Legal Ass
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legal reason' for the arrest; whether bail, conditional or unconditional, should be
granted; to 'safeguard the wellbeing of the detainee'; prevent violations of the rights
of the detainee; and enable the detainee to challenge the lawfulness of their detention
and be released if necessary.us In cases where individuals are kept in detention then
their situation 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 standm·ds."1l5 In the presentation Communication, the Victims were
detained without charge and no review was ever conducted in order for the
Respondent State to justify their prolonged detention. As such, neither the legality of
the detention, nor the conditions of detention were ever reviewed by a competent
authority.
152.
Article 6 also requires States to detain individuals only in officially recognised
places of detention. I 16 Wi Ilfully detaining individuals in unofficial places of deten tion,
such as in this case, has the adverse effect of denying them access to scrutiny by the
competent authorities and the protection of the law. Upon their arrest, the Victims
were taken to the Sawa military camp following which they were transferred to the
Mai Serwa Prison. The Sawa military camp is not an official place of detention, which
falls short of the obligation to detain individuals only in official places of detention.
The transfer of the Victims to the Mai Serwa prison did not alter the arbitrary nature
of the detention, since the transfer was not based on a remand or commitment order
issued by a competent authority and no measure was taken to ensure the Victims
safety and rights such as keeping records of their detention in the prison register.
Furthermore, the family of one Victim tried everything to ask his whereabouts and
the reasons for his detention but they were told there was no record.U? The authorities
instead continued to deny that they actually had any prisoners.Uf
The violation of Article 6 is further compounded by the incommunicado nature
of the detention and the failure by the Respondent State to present the victims with an
opportunity to defend themselves before a competent judge. The African Court on
Human and Peoples' Rights has held in Africnn COn/mission on Human and Peoples'
Rights v. Libya, that "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, constitute a violation of his
right to liberty and to the security of his person as set forth under Article 6 of the
Charter."119 In the present Communication, the Victims were never presented before
153.
ACHPR, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, sections
M3. See also Communications 64/92-68/92-78/92_8AR,
Krishna Achuthan (on behalf of Aleke Banda),
Amnesty International (on behalf of Orton and Vera Chirwa), Amnesty International (on behalf of Orton and
Vera Chirwa) v Malawi, 22 March 1995, para. 9.
115 Communication
250/02, Liesbcth ZegveJd and Mussie Ephrern v Eritrea, 20 November 2003, para. S6.~
L16 ACHPR, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa,
003, section, ,•. ~
M6(a).
"
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117 Sworn Statement, Doc. 17. para. 10.
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118 Complainant's
Submissions, para. 55.
8
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IIq African Court on Human and Peoples' Rights, Application 002/2013, African Commissio
IIJrnan and
Peoples' Rights v. Libya, 3 June 2016, paras. 85.
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a judge and they never had access to a lawyer owing to various contextual and
structural challenges, not least the very incommunicado detention and the fear among
lawyers in Eritrea to defend persons in cases involving the State.
154.
None of the abovementioned conditions were met in the present case, and the
Commission cannot find otherwise as to hold the Respondent State responsible for
violation of Article 6 of the Charter.
Alleged violation of Article 7
155.
The Complainant alleges that the Respondent State violated the provisions of
Article 7 in that the victims, jointly and severally, were denied the right to be heard by
a court or to appeal their incarceration, presumed guilty without trial or defence,
refused access to legal counsel and incarcerated indefinitely in inhumane conditions,
for no lawful reason.
156.
Article 7 of the Charter protects the right to a fair trialin the following terms:
1. Every individual shall have the right to hnue his cause heard. This comprises: (a) the
right to an appeal to competent national organs against acts of violating his
fundamental righls as recognized and guaranteed by conuentions, lmos, regulations
and customs ill force; (b) the right to be presumed innocent until proved guilty by a
competent court or tribunal; (c) the right to defense, including tile right to be defended
by counsel of his choice; (d) the right to be tried within a reasonabletime by all impartial
court or tribunal.
2. No one may be condemned for an act or omission which did not constitute a legally
punishable offellce at the time it was committed. No penalhJ may be inflicted for an
offence for which 110 provision was marieat the time it wns committed. Punislunent is
personal and can be imposed only 011 the offender.
157.
The right to a fair hearing includes that individuals must be afforded reasonable
opportunities to present one's case; the right to a legal representative and interpreter;
trial without undue delay and the right to an appeal. In criminal cases the accused
should have a hearing to determine their guilt.l20 The African Commission has
insisted that '[0]0 circumstances whatsoever, whether a threat of war, a state of
international or internal armed conflict, internal political instability or any other
public emergency, may be invoked to justify derogations from the right to a fair
trial' .12.1
158.
The allegations in this Communication will be addressed separately against the
four components of fair trial, namely the right to be heard (article 7(1)(a), the right to
be presumed innocent Article 7(lO(b), the right to defense (article 7(1)(c)and the right
to be tried within a reasonable time Article 7(10(d).
1~ ,
120 ACHPR,
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Afric
G.
121 ACHPR,
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in A
R. ; Communicaiton 218/98, Civil Liberties Organization, Legal Defence Centre, Legal Defe
Project v. Nigeria, para. 27.
2000, section
0"0
~
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Right to be heard
159.
In Communication 27/89, 46/91, 49/91, 99/93 Organisation Mondiale Conire La
Torture and Association lniernationale des juristes Democraies) Commission lniernntionale
des [uristes (Cl.]) Union luterafricaine des Droits de l'Homnte v. Rwanda, the expulsion of
Burundi nationals without being given an opportunity to challenge the decision
before a national court was found to be a violation of the right to be heard under
Article 7(1).122
160.
Detention without affording the victims due process and access to judicial
remedy, depriving a person of the opportunity to be presented with the State's case
against them, explain themselves and provide legally valid justifications to their
behavior and establish his innocence or otherwise is a violation of the Charter. Judicial
scrutiny is the major safeguard against arbitrary arrest and detention.
161.
When a person is detained, it is the responsibility of the State "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" .12.'
162.
In the present Communication, the Complaint alleges that the Victims were
denied the right to be heard by a court or to appeal their incarceration. Since their
arrest, no charges were brought and no case presented against them. Instead the
Respondent State continuously failed to present the Victims before a judicial
authority, which indeed violated their right to be heard by a competent court.
Presumption of innocence
163.
It is the view of this Commission that prolonged pre-trial detention amounts to
punishment and therefore violates to right to be presumed innocent. The Commission
has also ruled that the presumption of innocence may also be violated by the length
of time an individual is detained pre-trial. Drawing upon the Inter-American
Commission's decision in Dayrn Marfa Le110yer [imenez v Ecuador, the African
Commission considered the detention of individuals for three years before their trial
and then the trial took a further thirteen years before judgment. It held that this
'essentially meant substituting pre-trial detention for their punishment. ... [TJheir long
preventive custody thus lost its purpose as an instrument to serve the interests of
sound administration of justice'. They were 'criminally punished by presuming their
guilt even before they were heard', a clear violation of Article 7 and the presumption
of innocence.P!
122 Communication
27/89, 46/91, 49/91, 99/93 Organisation MondiaJe Contre La Torture
Internationale des juristes Democrates) Commission lnternationale des [uristes (C.I.D Union
Droits de I'Hornmc v. Rwanda, 1996, para.
123 Communication 250/02 - Liesbeth Zegveld and Mussie Ephrcm v.Eritrea, cited above, pa
124 Communication 301/05, 074 above, para 209.
164.
This Commission has said before: "Tlu: prolonged imprisonment without conviction
cf the Victims for a period of about 16 yenrs clearly violates their right to be presumed innocent
in tlutt it was meant as a sanction prior to till' delir1ery of the judgment. As held by ilte InterAmerican Court, the deprivation o] a person's liberty for a disproportionate time is the same as
serving a sentence in advance of the judgment. The African Commission agrees untli the
Complainant thai the Victims were criminally punished by presuming their guilt el1en before
they were heard, in viola Non of I he principle of presumption of innocence established in A riicle
7(1)(b) of tue African Charier, Article XX of the Universal Declaration and rule XXX of tile
Principles and Guidelines on fair trial."125
165.
The presumption of innocence may also be violated where an individual's right
to be heard is breached thereby depriving the individual of the ability to defend
themselves. This was the case in Communication 294/04, Zimbabwe Lawyers for Human
Rights and Institute for Human Rights and Deoelopnient in Africa (on behalf of Andrew
Barclay Meldrum) 11 Zimbabue, where the immigration authorities had deported the
individual from the country without bringing him before a court and affording him
an opportunity to defend rumself.126 The Commission went on to conclude: "The
actions of the Respondent State amounted to a conclusion that Mr Meldrum was gui tty
of the allegations against him, contrary to the presumption of innocence."
166.
The Commission has held that the presumption of innocence also requires that
'all public authorities 'refrain from prejudging the outcome of a trial'. Negative
publicity given by State officials which 'clearly demonstrate the government's
hostility and bias towards the victims will violate Article 7(1)(b), particularly if those
officials are high ranking.P?
I67.The Victims in this Communication were detained by the Respondent State, first in a
military camp and subsequently in a prison for a combined period of 26 years, as if
they were guilty of a serious crime. However, they never were charged of any offence,
never tried, thereby having the opportunity to challenge their detention or establish
their innocence. State officials also made statements as if the Victims were responsible
and were being punished for some crime.
Access to a lawyer
168. In COI1I11Ll-LIIicntion
218/98, Civil Liberties Organization, Legal Defence Centre, Legal Defelice
and Assistance Project v. Nigeria, citing the UN Human Rights Committee in Burgos 11
Urugllay and Estrella 7) Uruguay, the Commission held: "Lawyers should be able to
counsel and to represent their clients in accordance with established professional
standards without any restrictions, influences, pressures or undue interferences from
any quarter."l28
125 Communication
301/05, n74 above, para 209.
__..".....
294/04, Zimbabwe Lawyers for Human Rights and lnstitute for Human Ri~hts An~
Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009, par 99,
""'~o
I:t' Communication 301/05, n74 above, para 190 & 193. The same was held in Communication
/2009, Tsatsn
Tsikatil v Republic of Chana, 14 October 2014, para 116.
126 Communication
-;.~
8"
Communication 218/98, Civil Liberties Organization, Legal Defence Centre, Legal Defe
Project v. Nigeria, para. 29.
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169. In the present Communication, the Victims were never taken to court or before a judge,
and owing to a context marked by fear and Government restrictions. the families of the
Victims had no possibility to arrange for a lawyer.l29 The impossibility for the Victims to
exercise their right to defence was further compounded by the denial by the authorities
of the very fact of their detention, making it impossible for the families to know which
court to go to. The context of fear for their life or freedom made it impossible for lawyers
to challenge State decisions.
170. These individuals are being held incommunicado with no access to lawyers, friends or
their families who could arrange for their legaJ representation. Preventing a detainee
access to counsel clearly violates Article 7(1)(c) which provides for the right to defense,
including the right to be defended by a counsel of his choice.P''
Right to be tried uiithin a reasonable time
171. The Commission is of the view that Article 7(1)(d) of the Charter does not only provide
that every person charged with a criminal offence has the right to be tried without undue
delay by an impartial court or tribunal, but also that an individual who is accused of an
offence and held in custody is entitled to have his or her case determined promptly.P!
Thus, the Commission has determined that detaining individuals without trial for seven
years such as in Abubakn» 7' ClllItlU132 or even three years such as in Communication 275/03,
Article 19 v. Eritren133 breached the requirement of trial within a reasonable time as set
out in article 7(1)(d).
172.
In this case, the detainees were held incommunicado, and had never been brought before
a judge to face charges. ln these circumstances, the Commission found that Eritrea had
breached the requirement of trial within a reasonable time, as set out in Article 7(1)(d) in
line with its previous decisions in Communication 102/93, in which 3 years of detention
was found to be unacceptable, and Communication 103/93, where the Commission
stated that 7 years detention without trial clearly violates the 'reasonable time' standard
stipulated in the Charter.P!
173.
The facts presented before the Commission indicate that the victims were arrested and
detained without any arrest warrant and procedural guarantees. They never were
presented before a judge for trial.
174.
The 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 t~
grounds justifying the detention can be assessed. In any event, detentij
hould not
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Affidavit, Doc. 12, para. 12, Doc. 13, para. 24, & Doc. 1-1,para. 15-16).
130 Communication 275/03, Article 19 v. Eritrea, ACHPR, para 103.
III See Communication
301/05 n74 above, para. 215.
112 Abubakar v Ghana [(2000) AHRLR 124 (ACHPR 1996)] para .....
13.1 Communication
275/03, Article 19 v. Eritrea (2007) ACHPR, para. 100.
IJ.1 Communication 275/03, Article 19 v, Eritrea (2007) ACHPR, para. 100.
129
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continue beyond the period for which the State can provide appropriate justification.Pt
It is the responsibility of the State to ensure that 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.J=
175.
In Communication 275/03, Article 19 v Eritrea, where the Eritrean government argued that
the 'precarious war situation' in the country meant that there was a delay in trying
individuals, the Corrunission held that 'even if it is assumed that the restriction placed
by the Charter on the ability to derogate goes against international principles, there are
certain rights such as the right to life, the right to a fair trial, and the right to freedom
from torture and cruel, inhuman and degrading treatment, that cannot be derogated
from for any reason, in whatever circumstancesP?
76.
The facts before the Commission clearly show that the Victims were arrested in 1994 and
detained with no trial until their release in 2020. This is an ostensibly unduly prolonged
pre-trial detention in violation to the right to be tried within a reasonable time. As the
saying goes, justice so delayed is justice denied.
177.
Thus, failure by the Respondent State for 26 consecutive years to present the victims
before a competent court, to have their case heard, constitutes a violation of article 7(1)
J
(d).
Nullum crimen sine lege
178.
The Complainant contends that the Respondent State detention of the victims without
charge or conviction under any offence known to law constitutes a violation of Article
7(2).
79.
Article 7(2), otherwise known as the principle of legality of offenses and penalties,
protects individuals against arbitrary prosecutions and convictions. Nullum crimen sine
lege is a well recognized general principle of law. This was reaffirmed in Agnes UunntanaNkusi & Saidaii Mukakibibi (represented by Media Legal Defence Initiative) v . Rumnda:
"Article 7(2) of the Charter guarantees what is commonly known as the principle of
legality, whose effect is that an act can be punished only it, at the time of its commission,
that act was the object of a valid, sufficiently precise, written criminal law, to which a
sufficiently specific sanction was attached. Embodied in the principle of legality is the
requirement of certainty which serves to ensure that criminal conduct is defined in such
a manner that the individual knows from the wording of the definition of the criminal
conduct, which acts or omissions are proh.ibited."l38
180.
This interpretation does not apply to the present Communication since the victims were
never prosecuted nor sentenced, and it would be mere speculation to deduce that from
J
ns Communication 250/02: Liesbeth Zegveld and Mussie Ephrem / Eritrea,2003; para. 56.
114 Communication 250/02: Liesbeth Zegveld and Mussie Ephrem / Eritrea, 2003; para. 56.
117 Communication
275/03, Article 19 v Eritrea, 30 May 2007, para 98; and Communication
'/05t74
above,
para 238
,~
138 Communication 426/12 Agnes Uwimana-Nkusi
& Saidati Mukakibibi (represented by Nt, ~ia(L gal Defence
Initiative) v . Rwanda, para. 139-140.
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the facts presented. Arguably, Article 7(2) can only be violated by the conduct of a
criminal prosecution and trial against a person for acts that do not constitute crimes
under the law that existed at the time the impugned acts were committed.
181.
The Commission recognizes that the principle of non-retroactivity
of criminal
punishment is a "clear and well established principle recognised by the comity of
civilised nations both at the international level and within national legal systems",139 the
purpose of which "is to ensure that, citizens at all times are fully aware of the state of the
law under which they arc living".140 In practical terms, however, the Commission has
decided to concern itself with the question of whether there is retrospective application
of the law through charges or trial.t+'
182.
However, the Commission finds that no violation can occur under this provision since
no charges were brought, no indictment was issued, and no prosecution or trial took
place against the victims. The Commission, therefore, concludes that Article 7(2) does
not apply to the present case. As indicated earlier, the victims were never tried or
sentenced. As such, the principle of' nullum crimen, sine lege 'was not violated.
Alleged violation of Article 8
183. The Complainant
alleges that the Respondent State violated the provisions of Article 8
in as much as the victims, jointly and severally, have been denied the right to freedom of
conscience and religion and only allowed release if they deny their conscience and serve
in the military forces of Eritrea. Their abduction and detention, so goes the Complaint,
arc causally related to their religious beliefs as Jehovah's Witnesses, as demonstrated by
the State's representations to release the victims only if they renounce their faith.
184. The Complainant posits that the Victims are conscientious objectors to military service and
argues that the latter's arrest and detention was simply motivated by their refusal to
perform military service for the Respondent State; because of that, the Complainant alleges
that the Victims were denied the right to freedom of conscience and religion, contrary to
Article 8 of the Charter.
185. Article 8 of the Charter provides: "Freedom of conscience, the profession and free practice
of religion shall be guaranteed. No one may, subject to law and order, be submitted to
measures restricting the exercise of these freedoms."
186. The central question before this Commission
is whether a conscientious objection to
military service is a right protected under Article 8 of the African Charter and whether the
impugned conduct of the Respondent State violates that right.
Communication 322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 128.
1'10 Communication
147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 63.
141 See Communication
322/2006, Tsatsu Tsikata v Republic of Ghana, 14 October 2014, para 134: "tfte:"tl~~
question the Commission is called upon to determine is whether domestic courts failed to live up t11~'
undertaking the Respondent State made under Article 7(2) of the Charter. This as of necessity _,illrequire the
Commission to examine whether the charges against the Complainant before the Fast Track H' ....
Cou/l amount
to retrospective application of section I79A(3)(a) of the Criminal Code." See also: Comrnunic . n 101/93, Civil
Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria, 22 March 1995, ra IS.
139
187. The provision of Article 8 affords individuals two operative guarantees, namely: (1) the
freedom to profess religion and (2) the freedom to practice religion. On the one hand,
freedom to profess a religion entails the freedom to adopt, have, maintain, or hold a
religion; and the freedom to join, or otherwise recant or reject a religion one holds at any
time. It is recognized that these core aspects of freedom of religion are exercised in the
innermost circle of the human being known as the jorum iniemum which includes the
conscience.
188. Freedom to practice religion, on the other hand, includes outward, perceptible
manifestations or observance of religious faith or belief, alone or in community with
others, in public or in private - teaching, worship, the observance of religious precepts
and cults are part of that facet also called forum externum. The practice of religious faith is
generally manifested through the performance of external acts such as the observance of
religious precepts, rites and cults which, in the mind of the adherent, are mandatory.
Because of the interplay between those religious practices and behaviors with the outside
world, the rights of others and the general interests of the community, the State may
legitimately adopt and apply measures which restrict the free practice of religion for the
sake of maintaining law and order. Hence the limitation clause under Article 8.142
189. The Commission in Hossam Ezzat & Rania Enauet v. EgtJpt held that "Whereas the term
'profession of religion' may .mean an open declaration or affirmation of one's religion,
which is an outward act, in the context of Article 8 of the Charter it is to be interpreted as
denoting the act of adopting, having, maintaining or holding a religion.tf "Thus the
freedom to profess a religion entails the freedom to adopt, have, maintain, or hold a
religion.
190. The right to conscientious objection to military service is not a right in itself as it is not
directly provided for under international instruments,
but rather is generally
characterized as a derivative right; a right that is derived from an interpretation of the
right to freedom of thought, conscience, and religion.t+' Conscientious objection to
military service is indeed not explicitly provided for in the core international human rights
instruments. However, the right to conscientious objection has been recognised as a
fundamental aspect of the freedom of thought, conscience, and religion, as laid down in
Article 18 of the Universal Declaration of Human Rights and Article 18 of the International
Covenant on Civil and Political Rights (ICCPR).
191. As such, there is no international human rights treaty-based definition of conscientious
objection. According to the former UN Commission on Human Rights, Conscientious
objection to military service refers to an objection to such service which derives from
1;(2 See also Article 27(2) of the African
Charter according to which the rights in the African ~
'shall be exercised wilh due regard to the rights of others, collective security, morality, and co ..,oninterest".
r...
141 Communication
No. 355/07 Hossam EZ7.at& Rania Enayet (represented by Egyptian lniti
for Personal
"
Rights & lNTERTGr-ITSv . The Arab Republic of Egypt (2018) J\CHPR, paras. 130.
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..."
144 Unites Nations Office of the High commissioner
for Human Rights, Conscientious Obj 'on to Milital:}'
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c.
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Service, New York and Ceneva, 2012, p.7.
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principles and reasons of conscience, including profound
religious, moral, ethical, humanitarian 01' similar motives.lw
convictions,
arising from
192. Similarly, conscientious objection is not explicitly provided for under the African Charter
and no guidance is provided under the Charter itself for determining the meaning and
scope of conscientious objection, or indeed the implications of a determination that any
specific conduct actually constitutes or violates conscientious objection.
193. In the matter at hand, the Complainant
alleges that the measures taken and the speech
made by the Respondent State officials violate the rights in the forum internum, Jt is
contended that the victims were arrested, detained and subjected to torture and illtreatment in a bid to compel them to renounce their faith.
194. In this light, the Commission
will consider the impugned State conduct and determine
whether it entails the freedom of religion reserved to the forun: intemum or that reserved
to theforumexternum
and the extent to which the said conduct violates the right to freedom
of religion.
195. In doing so, it should be borne in mind that the Jehovah's Witnesses are not a recognized
religious denomination in Eritrea. This Commission has already said that even though the
State may not recognize or acknowledge a given religion, individuals are still at liberty
within their [orun! internum to embrace and hold such a religion.146 When it comes to Statedirected policies, however, issues arise in relation to religious practices and displayed
behaviors in as much as the latter can conflict with policy directions.
196. Since conscientious objection to military service requires a 'no', a rejection, refusal or any
other statement or act of disobedience to State direction to perform military service, as
contrary to one's beliefs, it is the view of this Commission that such statement or act falls
within external manifestations of religion, the forum exlemumls? The Conscientious
objection goes beyond the mere idea of holding a belief, but goes to the point of
manifesting the same belief, by opposing it to orders or any other State policies.
197. The Commission in Prince v. South Africa has clarified that while right to hold religious
beliefs is absolute, the right to act on those beliefs is not: "Although the freedom to
manifest one's religion or belief cannot be realised if there are legal restrictions preventing
a person from performing actions dictated by his or her convictions, it should be noted
that such freedom does not in itself include a general right of the individual to act in
accordance with his or her belief. While the right to hold religious beliefs should be
absolute, the right to act on those beliefs should not. As such, the right to practice one's
religion must yield to the interests of society in some circumstances. "1<18
198. Drawing comparisons with K. Sing" Bliinder V Oil/ada before the UN Human Rights
Committee, the Commission found restrictions on the use and possession of cannabis by
a Rastafarian as part of his religious beliefs were compatible with the Charter inasmuch as
the restriction was" general and happens to affect Rastafari incidentally (de facto)" .149 The
same can be said of the Jehovah's Witnesses in Eritrea.
199. In its Proclamation on Military Service No 82/1995,150 the Respondent State has instituted
a general policy of compulsory military service for all Eritrean aged 18 to 50 years old. The
Proclamation on National Service provides compulsory national service for "any Eritrean
citizen" :
Under this Proclamation allY Eriirean citizen front 18 to 50 years of age has the obligation of
carrying out national service. lSI
"Under this Proclamation all Eritrean citizens from the age of 18 to 40 years luroe the
compulsonj duty of perfonning Active National Service.
Active National Service consists of six months of training in the National Service Training
Centre ami 12 months of active inilitarf service and development tasks in militant forces for n
total of18 months.
Those toho are unable to undertake militanj training are included in those who give 18 months
of national service. "152
"Any Eritrean citizen from the age of18 to 40 years called upon to undertake active national
service has the compulsory duty of undertaking military training for six months in the
National Seroice Militanj Training Centre".153
200. The Proclamation
defines the objectives of the national service which include the
establishment of a strong Defence Force154 and lay down the conditions for
exemptions. ISS As such, the Proclamation cannot be said to target the Jehovah's Witnesses
in a discriminatory pattern, but rather applies to members of that group as it does to any
Eritrean citizen of the requisite age range. It is not targeting the Jehovah's Witnesses as a
group, but rather applies to them 'incidentally'i='
201. Conscientious
objection to military service and the extent to which the latter is a
protected right has been considered by various international and regional human rights
bodies.
The UN Human Rights Committee
202. In its early jurisprudence,
the Human Rights Committee initially held the view that that
there was no right to conscientious objection to military service under article 18 of the
1-19 Communication
150 Proclamation
lSI Proclamation
152 Proclamation
153 Proclamation
154 Proclamation
Proclamation
156 Proclamation
ISS
255/02, Garreth Anver Prince v South Africa, 7 December 2004, para 42.
~
on National Service No 82/1995, Published in the Eritrean Gazette No 11 of .October 1995...
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on National Service 1082/1995, Article 6.
:
on National Service No 82/1995, Article 8.
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on National Service No 82/1995, Article 9.
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Covenant. That was the position in L.T.K. v. Fin/and.157 Later on, in General Comment
No. 22 (1993), the Human Rights Committee decided to depart from that position and
stated instead: " The Covenant does not explicitly refer to a right to conscientious
objection, but the Committee believes that such a right can be derived from article 18,
inasmuch as the obligation to use lethal force may seriously conflict with the freedom of
conscience and the right to manifest one's religion or belief.Iss]t is worth noting that the
Committee focuses on "the obligation to use lethal force" as the determinant of a claim
of conscientious objection. This reversal was confirmed in Westerman v. Tile
Netherlands.159
203. In YOOI1 (It al. ·v. Republic of Korell,l60 the Human Rights Committee held that the right to
conscientious objection was a right based on article 18 and applicable to all State parties
to the Covenant irrespective of whether the concerned State recognizes such a righ t: "[ ... ]
article 8 of the Covenant itself neither recognizes nor excludes a right of conscientious
objection. Thus, the present claim is to be assessed solely in the light of article 18 of the
Covenant, the understanding of which evolves as that of any other guarantee of the
Covenant over time in view of its text and purpose." The Committee considered that: the
State party has failed to show what special disadvantage would be involved for it if the
rights of the authors under article 18 would be fully respected. The Human Rights
Committee reaffirmed this position in Jung et al. v. Republic of Korea,161 and in Jeong et al.
v. Republic of Korea,162 adding in the latter case "the right to conscientious objection to
military service inheres in the right to freedom of thought, conscience and religion. It
entitles any individual to an exemption from compulsory military service if this cannot
be reconciled with that individual's religion or beliefs."
The European Court on Human Rights
204. In Bayntyan v. Armenia, the ECHR held: "that Article 9 does not explicitly refer to a right to
conscientious objection. However, it considers that opposition to military service, where
it is motivated by a serious and insurmountable conflict between the obligation to serve
in the army and a person's conscience or his deeply and genuinely held religious or other
beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and
importance to attract the guarantees of Article 9."163
205. it is worth noting that, in reaching its conclusion, the ECHR took the context into
consideration. Referring to the provision in the Charter of Fundamental Rights of the
European Union (2000), that "[t]he right to conscientious objection is recognised, in
accordance with the national laws governing the exercise of this right", the ECHR inferred
that such an explicit addition "reflects the unanimous recognition of the fight to
conscientious objection by the member States of the European Union, as well as the weight
attached to that right in modern European society."l64 The ECHR also based its analysis
on the finding that lithe domestic law of the overwhelming majority of Council of Europe
member States, along with the relevant international instruments, has evolved to the effect
that at the material time there was already a virtually general consensus on the question
in Europe and beyond."l65 (emphasis ours).
206. Somehow, the decision in BnynhJan was motivated by the existence of "a virtually general
consensus on the question in Europe in beyond". The Commission is of the view that at
this point in history there is no indication of a general consensus in Africa towards the
recognition of conscientious objection to military service on religious grounds. Such
general consensus is key to the development of international law and the creation of
binding obligations upon Member States.l= In the absence of a such a consensus, the
Commission will not seek to create a right that is not provided for under the Charter.
While 'drawing inspiration from' other instruments in terms of article 60 has led the
African Commission to infer rights into the Charter which are not expressly set forth
therein, caution has been advised that the Commission should instead ground its decisions
in existing rights, rather than to 'invent' such rights thus placing the Commission's
'legitimacy and many other interpretive gains at risk'.167
207. A violation of a right or freedom guaranteed under intemationallaw
entails breach by the
State of obligations that it has undertaken under international law with respect to those
rights or freedoms. A state breaches an international obligation when its conduct or
conduct attributable it in the form of action or omission is not in conformity or is
inconsistent with what is expected of it by the obligation in question.t=' It is therefore
important to establish the alleged conduct of the State with sufficient certainty and identify
the concomitant obligations which such conduct impllcates.ts?
European Committee of Social Rights
208. The European Committee of Social Rights recently considered the issue of conscientious
objection to military service for serving members of the Irish Defence Forces in the case of
European Organisation. of MiLilanj Associations and Trade Unions (EUROMIL) v. Ireland
Complaint No.164/2018. 170 Emphasising that the right to conscientious objection is not as
such guaranteed by the European Social Charter.V' and considering that lithe Defence
Forces can be regarded as an essential service and that during periods of emergency States
enjoy a wide margin of appreciation with respect to their operation,"l72 the Committee
II>( Bayatyan
v Armenia,
v Armenia,
para. 106.
para. 108.
100 See Draft Articles on State Responsibility
.....
167 F. Viljoen, International
Human Rights Law in Africa, Oxford University Press, 2007, at 347-8.
163 Draft articles
on Responsibility
of States for internationally
Wrongful
Acts (Draft Articles on State
Responsibility) ILC, adopted 2001, Art. 12
1&9 Communication
155/96 - Social Economic Rights Action Centre (SERAC) and Center for Economic and
Social Rights (CESR) v Nigeria (SERAC Case) (2001) ACHPR para. 43.
170 European
Organisation
of Military Associations
and Trade Unions (EUROMlL) v. Ireland Gotnitipm'
um~
No.164/2018, 18 March 2021.
Tr
171 European
Organisation
of Military Associations
and Trade Unions (EUROMIL) v. lr " d Complaint
G<;.,
No.164/2018, 18 March 202'1, para. 52.
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172 European
Organisation
of Military Associations
and Trade Unions (EUROMLL) v. rancV Complaint \:
r
No.164/2018, 18 March 2021, para. 62.
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also recognized that the Charter under article F and G permits restrictions which are
prescribed by law and are necessary in a democratic society for the protection of the rights
and freedoms of others or for the protection of public interest, national security, public
health, or moraJs."l73 In the light of the above considerations and having regard to the fact
that the restriction imposed on discharge from the Defence Forces during a period of
emergency is prescribed by law with sufficient clarity, that it pursues a legitimate aim and
can be deemed to be necessary in a democratic society for reasons of national security, the
Committee considers that the situation is compatible with the Charter,"174 and proceeded
to conclude that there is no violation of Article 1§2 of the Charter.
The Inter-American
Commission on Human Rights
209. In Crisiidn Daniel Sahli Vera et al. v. Chile, the Inter-American
Commission on Human
Rights dismissed a claim that conscientious objection to military service was a right
under the American Convention on Human Rights, as Chile had not recognized such a
right by law and found no violation of the applicants' rights under, inter alia, article 12
of the Convention." 175
210. The IACHR determined
that the "American Convention does not expressly create or
even mention a right of 'conscientious objection', the alleged right to not be required to
comply, for reasons of conscience, with obligations imposed by law." The Commission
noted that "international
human rights jurisprudence
recognizes the status of
conscientious objectors in countries that provide for such status in their national laws ..."
The IACHR confirmed this approach in Alfredo Dlaz Bustos v. Bolivia176•
21 J. The African Commission
has already held that notwithstanding the practice of the
European and Inter-American human rights bodies, each case must be treated on its own
merit.V? In the present Communication, since conscious objection to military service on
religious grounds is not a right set forth in the Charter, since the Jehovah's Witnesses is
not a recognized religious denomination in Eritrea, and in light of the prevailing
comparative jurisprudence which is not consistent, the Commission concludes that the
Respondent Sta te cannot be held to account for obligations that do not arise from a clearly
binding instrument under international law.
212. The next question before this Commission is whether the State's actions directed against
the Victims amount to coercion to change religion, which would violate the core absolute
freedom of religion within the forum intern II 111.
213. In line with the protection under article 8, no one can be compelled to adopt or change a
religion. The Commission has held: "In this regard, any measure that invades the
individual's forum internum and overrides the individual's voli tion to adopt or not adopt,
of Military Associations
and Trade Unions (EUROMIL) v. Ireland Complaint
March 2021, para. 61.
17-1 European Organisation
of Military Associations
and Trade Unions (EUROMIL) v. Ireland Compla
No.164/2018, 18 March 2021, para. 63.
175 Case no. 12.219, Report no. 43/05, 10 March 2005, para'). 95-97.
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F
17b Alfredo Dlaz Bustos v. Bolivia, Case no. 14/04, Report no. 97/05, 27 October 2005, para. ~
I
In Communication
375/09, Priscilla Njeri Echaria (represented by Federation of Women
erf, Kenya and
International Center for the Protection of Human Rights) v Kenya, 7 November 20"11
\\\
173
European Organisation
0.164/2018,18
,~
to have/hold, to maintain or to recant or denounce a religion is absolutely prohibited.
Coercion or duress in particular is such a measure. Thus, any coercion to adopt: to hold
or maintain, or to recant; or to prevent someone from adopting a religion of their choice
is unequivocally prohibitedT"
214. In Communication
48/90- 50/91- 52/91- 89/93, Anlllcsty International, Comiie Loosli Bachelard,
Lawyers' Committee for Human Rights, Association of Members of the Episcopal Conference of
East Africa v. Sudan, the Commission found that the State was in violation of Article 8
because" non-Muslims were persecuted in order to cause their conversion to Islam" 179
and "these attacks on individuals on account of their religious persuasion considerably
restrict their ability to practice freely the religion to which they subscribe".180 The
Commission also held in Free Legal Assistance Group, Lawyers' Colli mitiee for Human Rights,
Union lnierafricaine des Droits de l' HOt1l111e,Les Temoins de Jehovah 11. DRC that the
harassment of Jehovah's Witnesses in the ORC (formerly Zaire) was a violation of Article
8.181
in the present communication submitted as evidence representations
of forms that prison authorities allegedly asked the Victims to sign as proof of their
renunciation of their faith for their release.182 The relevant documents state:"THA T these
friends in Eritrea have informed me [... ] detained Jehovah's Witnesses were given two
documents to sign to procure their release from detention. These two separate forms
which J attach as Exhibit #3 were authored in the Tigrinya language and presented to
detainees sometime in or around July 2018 by the Prison Administrators, I obtained from
my friends in Eritrea information concerning the forms, which J believe to be true,
confirming that the content of the forms as provided to me was obtained from at least 6
detainees who had committed details of the forms to memory and subsequently wrote it
out in Tigrinya in their own hand."
216. The Commission has been unable to confirm the authenticity and credibility of these
forms and allegations. As laid down in the case of Civil Liberties Organization, Legal
Defence Centre, Legal Defence anti Assistance Project v. Nigeria, 183 the Commission cannot
and will not decide based on hearsay evidence and second-hand, non-authenticated
documents.
215. The Complainant
178 Communication No. 355/07 Hossam Ezzat & Rania Enayet (represented by Egyptian Initiative fOT Personal
Rights & INTERIGliTS v. The Arab Republic of Egypt (2018) I\CHPR, paras. 131. See also: Communications
25/89- 47/90- 56/91- 100/93.Free Legal Assistance Group, Lawyers' Committee for Human Rights, Union
lnterafricaine des Drolts de l'Homrne, Les Temoins de Jehovah v, DRC (2017) ACHPR, paras. 42-46.
1'/'9 Communication
48/90- 50/91- 52/91- 89/93, Amnesty International, Comite Loosli BacheJard, Lawyers'
Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v. Sudan
(1999) ACHPR, para. 74.
ISO Communication
4.8/90- 50/91- 52/91- 89/93, Amnesty international, Comite Loosli Bachelard, Lawyers'
Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v, Sudan
(1999) ACHPR, para. 76.
lSI Free Legal Assistance Group, Lawyers' Committee for Human Rights, Union Interafri
l'Homme, Les Temoins de Jehovah/Zaire, para. 45.
Doc 28, paras.7-9 and Exhibit "3".
Communication 218/98, Civil Liberties Organization,
Project v. Nigeria, para. 41.
1M2
183
Legal Defence Centre, LcgaJ De
.~ .
des Droits de '''-0...,
,
217. The Commission also notes the contradictory
statements from the witnesses as to the
supposed real intent behind the alleged forced signature of documents: "[Victim] told
me that a few years ago they talked to government officials for one day and they said the
government doesn't know Jehovah's Witnesses because if they did then they wouldn't
do thiS."18~"Over and over the guards asked if he changed his mind and would serve in
the military. They kept torturing him and then saying 'changed your mind now?' They
did whatever they couJd to try to force him to sign a document renouncing his faith. It
said something like 'I'm not a Jehovah's Witnesses anymore' and 'renounce my faith'.
They promised then if he would just sign he would be free."lI!S
218. From the evidence on the record, it is not clear whether
the intent of the detaining
authorities herein quoted was to force the victims to sign the documents for their release,
while at the same time they want them to submit to military service. Likewise, it proves
hard to comprehend whether and how Government officials stated that they do not
know the Jehovah's witnesses while at the same time suggesting that the same officials
were targeting members of that group as such,
219. After all, military service is not a religion and it would be incongruous
to infer that
compelling people to performing military service amounts to compelling them to change
their religion or adhering to some religion.
220. In the light of the foregoing, the Commission concludes that the Respondent State did
not violate Article 8 of the African Charter.
Compensation
221. While the right to an effective remedy is not explicitly provided for under the Charter,
the Commission has clarified in Communication 259/2002, Groupe de Travail sur les Dossiers
[udiciaires Stmtegiques v Democratic Republic of Congo, that such right 'can be generated
implicitly and automatically.186 Given the circumstances of the arrest of the victims in
this case, their unduly prolonged detention, torture and ill-treatment for 26 years;
compounded by the failure by the Respondent Sta te to either release them or charge them
of an offence and try them, affording them the opportunity to challenge such charges
and detention before a competent court, it seems only fair for this Commission to
generate such a right.
222. According to the Principles and Guidelines
on the Right to a Fair Trial and Legal
Assistance in Africa, everyone has the right to an effective remedy which includes,
among others reparation for the harm suffered. 187The Commission also holds the view
that the "rights guaranteed by the African Charter would be an empty proclamation if it
Doc 18, para, 26.
18, 19.
1116 Communication 259/2002, Groupe de Travail sur les Dossiers [udiciaires Strategiques
of Congo, 24 July 2013, para 78,
187 ACHPR, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance
C.
1&,1
18S Doc 15, paras.
u
was not backed by the guarantee of a right to restitution or compensation in the event of
violation."188
223. Where there is a violation there must be an effective remedy, and in order to be effective,
the remedy must be capable of redressing the wrong suffered. The Commission notes
that even though the victims have been released, their release was as arbitrary as their
arrest. No explanation, no compensation and no consideration whatsoever were given to
their plight during detention or their fate upon release. It is clear that following more
than two decades in detention, the victims have had their lives shattered; they were
deprived of their opportunities
to pursue education and/ or engage in gainful
employment, make a living and start a family. They have lost contact with the outside,
real world, and they need support to start making a living from scratch.
224. The Complainant in the present Communication has sought a recommendation that the
State Party provide remuneration by way of just satisfaction to the victims to compensate
them for the entire period of their unlawful detention and for loss of income, physical,
mental and emotional damages, whether pecuniary or non-pecuniary. The Complainant
also requests a determination of the legal costs and expenses of the authors and victims
and a recommendation that the Respondent State pay such costs and expenses, including
the legal costs and expenses of the authors in investigating, preparing, presenting and
prosecuting this Communication. The Commission will deal with both requests together
in the name of fairness and with due regards to its jurisprudence.tw
225. The Commission considers that the range and type of remedies depends on the nature of
the violations established and the prejudice suffered by the victim. In the present
communication, while the release of the victims is a positive step, it cannot be said to
adequately redress the agony caused to the victims for more than 26 years. Nor does it
address the challenges the victims are bound to face for their future owing to 26 years of
absence at the hands of the Respondent State. That lack of preparation will definitely
have a negative bearing on their future. Because of that, the Commission considers that
the Respondent State should compensate the Victims adequately.
Decision of the Commission on the merits
226. In light of the foregoing, the African Commission on Human and Peoples' Rights:
(a) Finds that the Respondent State is in violation of article 5, 6 and 7(1) of the Charter.
(b) Finds that there is no violation of Article 7(2) of the Charter;
(c) Finds that there is no violation of Article 8 of the Charter;
(d) Requests the Respondent State to take measures to compensate the victim for the
prejudice they suffered due to the unjustified prolonged detention, torture, agony
and inability to make a living for 26 years;
188 Communication
302/05: Mamboleo Itundamilamba v. Democratic Republic of Congo (2
No. 253/2002; Antoine Bissangou v . Republic of Congo (29 Novem
Communication 59/91 Ernbga Mekongo Louis v. Cameroon, (1991) ACHPR 7; (1 January 1
189 Communication
(e) Requests the Respondent State to adopl all necessary measures in order to ensure
compliance both in law and in practice with the Charter and the Principles and
Guidelines on the Right to Fair Trial and Legal Assistance in Africa.
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Done in Banjul, The Gambia, at the 76th Ordinary Session of the Africa :Commission on t'-:,.
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Human and Peoples' Rights held in hybrid mode from 19 July to 2 Au
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