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Human Rights our
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Human and Peoples' Rights
Communication 502/14
S.A.
v
Del110cratic Republic of Congo
Adopted by the
African Commi8sion on Human and Peoples' Rights
During the 7d" Ordinary Session done virtually from 19 July to 02 AUgust 2023
The African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout. Kombo North District, West Coast Region
Phone: (220) 230 4361 Fax: (220) 441 0504
Email: au-banjul@africa-union.org
https:/achpr.au.inUOn.
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Decision of the African Commission on Human
and Peoples' Rights on Merits
Communication 502/14 - S.A.1 v. Democratic
Republic of Congo
Summary of the Complaint
The Complaint was received at the Secretariat of the African Commission on Human and Peoples' Rights
(Secretariat) on 21 November 2014.
The Complaint was lodged by REDRESS Trust and Synergie pour l'Assistance Judiciaire aux Victimes
des Violations des Droits Humains au Nord-Kivu, (Representatives), on behalf of S.A. (Complainant), a
Congolese national.
The Complaint was brought against the Democratic Republic of Congo (Respondent State), a party to
the African Charter on Human and Peoples' Rights (African Charter), which it ratified on 20 July 1987.
The Complainant first alleges that on 20 October 2008, in the context of fighting between the Armed
Forces of the Democratic Republic of Congo (FARDC) and the Congres National pour le Developpement
du Peuple (CNDP) in the province of North Kivu, Sergeant Shombo Chance left the frontline and went
to his horne near Goma.
The Complainant alleges that on 29 October 2008, Sergeant Chance raped her while she was two (2)
months pregnant, using an automatic rifle, threatening her and driving her outside her house, far from
her husband and their children.
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The Complainant also adds that, still under threat, Sergeant Chance stole their radio and forced her and
her husband to hand over to him the sum of $120, which represented all their savings. She states that
Sergeant Chance returned shortly afterwards, but the screams of the whole family made him leave.
The Complainant submits that Sergeant Chance was arrested by the FARDC after she reported the
incident.
The Complainant alleges that on 5 November 2008, the Senior Military Prosecutor charged Sergeant
Chance with rape and extortion.
The Complainant states that for the purpose of the investigation, Dr Rosette Kavira, an official at the
Ministry of Public Affairs, examined her on 7 November 2008 and concluded that she had probably been
raped.
o. The Complainant states that later, the hospital where the medical examination took place lost her
medical report and for this reason she refused any further treatment, so she was never tested for
HIV/ AIDS.
1. The Complainant reveals that on 10 November 2008, she filed a civil claim with the Operational Military
Tribunal (OMT) for compensation for non-material damage and the return of the sum of $120 and the
radio. The Complainant states that the action was brought against the accused and the Respondent State
in solidum.
2. The Complainant states that on 17 November 2008, the North Kivu OMT issued a judgment
sentencing
Sergeant Shombo Chance to penal servitude for life and dismissing him from the army. She said that the
judgment declared her claims as a civil party admissible and thereby ordered the reimbursement of the
$120 and the return of the radio by Sergeant Chance. She added that the accused and the Respondent
State were also ordered to pay;damages in the amount of $10,000.
3. The Complainant avers that, following the announcement of the judgment, she approached the Registrar
of the OMT more than once, to request payment. However, she contends that, the Registrar asked her to
speak to her lawyer and told her that she would have to pay 10% of the total amount awarded. She says
this discouraged her and she did not contact the Registrar again.
4. The Complainant
states that on 17 October 2013, the OMT Registrar issued a judgment notification to
Human Rights our
Collective Responsibility
notification costs. She claimed that the notification was sent to the Governor's Secretariat, but not to
Sergeant Chance.
5. The Complainant submits that on 28 July 2014, the Office of the Governor of North Kivu Province
acknowledged receipt of a letter that her lawyer, Eugene Lurhondere Buzake, sent on 14 July 2014,
copied to the Minister of Justice and Human Rights in Kinshasa and to REDRESS.She indicates that the
letter requests the Office of the Governor of North Kivu Province to fulfil the obligation of the
Respondent State to pay the compensation awarded by the OMT to the Complainant.
6. The Complainant alleges that to date, neither she nor her legal representatives have received any
response from the Office of the Governor of North Kivu Province or the Ministry of Justice and Human
Rights.
7. The Complainant claims that the stolen radio was returned to her during the proceedings. However, to
date, she has not received either the $120 stolen or the $10,000compensation payment awarded by the
court.
8. The Complainant argues that the obstacles described above are not specific to her case, but are part of a
general inability of the Respondent State to pay reparations ordered by the Court. She claims, for
example, that until March 2011, none of the 31 women raped by FARDC soldiers in Mbandaka and 29
women raped by rebels in Songo Mboyo, Equateur Province, had received any payment of courtordered compensation.
9. The Complainant asserts that the procedure for enforcing a court decision is very costly, time-consuming
and energy-consuming, and does not allow for the seizure of government property, leaving victims to
voluntarily enforce the compensation ordered by the court.
Articles alleged to have been violated
o. The Complainant alleges that the facts described above constitute a violation of Articles I, 2, 5, 7, 14 and
18 (3) of the African Charter, and Articles 2, 4, 8, 11 and 25 of the Protocol to the African Charter on the
Rights of Women in Africa (Maputo Protocol).
Prayers
1. The Complainant prays the Commissionto:
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Recognize that the facts described above constitute a violation of the rights protected under
Articles I, 2, 5, 7, 14 and 18 (3) of the African Charter, and Articles 2, 4, 8, 11 and 25 of the
Maputo Protocol;
ii)
Recommend to the Respondent State, in recognition of the provisions violated, to ensure:
);> Specific Measures
a. The immediate execution of the judgment of the OMT of North Kivu in case No. 010/2008,
rendered on 17 November 2008, including:
The payment of compensation in the amount of $10,000 awarded to the Complainant;
and
The return of the $120;
b. The payment of interest on the above amounts at the rate of 6%2 , calculated from the date
of the judgment;
c. That Sergeant Chance serves the sentence ordered by the OMT judgment in case No.
010/2008, pronounced on 17 November 2008, in accordance with the applicable laws and
procedures and to inform the Complainant in case of release and/ or escape.
);> General Measures
Reforming laws and institutions to provide adequate guarantees that these violations will not
be repeated in the future, including:
a. Reforming the legislation and process for enforcing judgments against the State, including
removing the requirements for victims to take legal action, and removing all fees for the
enforcement of judgments;
b. Designating a government authority to coordinate the implementation of court-ordered
compensation awards against the State, including those for victims of rape and other serious
forms of sexual violence;
c. Creating a specific budget line in the national budget to pay court-ordered compensation for
victims of torture, including sexual violence, and allocating funds to this line in each budget
cycle, with a transparent monitoring mechanism to ensure that the allocated budget is fully
distributed to beneficiaries without diversion or loss;
d. Undertaking comprehensive reform of the justice system, including the provision of adequate
resources, to ensure that crimes, including sexual violence, are prosecuted and that women
have effective remedies to address alleged violations;
e. Taking positive steps to overcome the barriers women face in accessing these remedies, for
example by providing effective free legal aid;
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f. Establishing a system of consolidated and disaggregated data on the response to allegations of
sexual violence, including complaints filed, prosecutions completed, compensation awarded
and awards implemented, to monitor progress and provide better information to victims;
g. Establishing a monitoring mechanism and providing it with sufficient resources to enable it to
review the past conduct of individual military and police officers in relation to human rights
violations and to ensure that, where there is evidence that a crime may have been committed,
it is investigated and appropriate action is taken; and
h. Establishing an administrative redress programme for victims of sexual violence, in
accordance with the UN Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law and the Nairobi Declaration on Women's and
Girls' Right to a Remedy and Reparation, to provide comprehensive reparation measures,
including monetary compensation, rehabilitation and restitution.
Procedure
2. The Complaint was received on 21 November 2014.
3. The
Secretariat
acknowledged
receipt
on
5
December
2014
by
letter
Ref:
ACHPR/COMM/RDC/1887/14 and informed the Complainant that the matter will be considered on
seizure at the next Session of the Commission.
4. By Note Verbale Ref: ACHPR/COMM/502/14/519/15
of 8 April 2015, the Secretariat notified the
Respondent State of the lodging of a Complaint against it, which the Commission has been seized of.
5. By correspondence of 4 June 2015, the representatives of the Complainant transmitted to the Secretariat
submissions on Admissibility, receipt of which was acknowledged by the Secretariat by letter Ref:
ACHPR/COMM/502/14/1051/15
of 6 July 2015.
6. By Note Verbale Ref: ACHPR/COMM/502/14/1050/15
of 6 July 2015, the Secretariat transmitted to the
Respondent State the Complainant's submissions on Admissibility and invited it to submit its arguments
on the admissibility of the Communication.
7. By
Note Verbale Ref: ACHPR/COMM/502/14/1392/15
of 2 September 2015, the Secretariat
retransmitted to the Respondent State the Complainant's submissions on Admissibility while inviting it
to submit its arguments on the Admissibility of the Communication.
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8. By Note Verbale Ref: ACHPR/COMM/502/14/1957/15
of 26 November 2015, the Secretariat reiterated
to the Respondent State the request to submit its observations on the admissibility of the
Communication.
9. At its 20th Extraordinary Session, the Commission considered the Communication on the basis of the
Complainant's submissions alone and declared it admissible.
o. By letter Ref: ACHPR/COMM/502/14/
/RDC/1568/16 of 21 September 2016, the Secretariat notified
the Complainant of the admissibility decision while inviting it to submit its arguments on the merits.
1. By correspondence
of 21 February 2017, the representatives of the Complainant transmitted to the
Secretariat the submissions on the merits of the Communication.
2. By Note
Verbale Ref: ACHPR/COMM/502/14/ /RDC/750/22 of 19 May 2022, the Secretariat
transmitted to the Respondent State the Complainant's submissions on the merits of the Communication
while inviting it to submit its arguments on the merits of the case.
3. By Note Verbale Ref: ACHPR/COMM/502/14/ /RDC/282/23 of 7 March 2023, the Secretariat
reiterated to the Respondent State the request to submit its observations on the merits of the
Communication.
The Law on Admissibility
Complainant's Arguments on Admissibility
4. The Complainant submits that the present Communication
meets the admissibility requirements under
Article 56 of the African Charter.
5. The Complainant states that the authors of this Communication have identified themselves in
accordance with Article 56(1) of the African Charter, as REDRESSand SAJ. The Communication also
identifies the Complainant, but for protection purposes, requests that her identity not be disclosed to the
public.
6. Regarding the requirement set out in Article 56(2),the Complainant maintains that the Communication
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further claims that the Communication denounces facts relating to serious violations of rights protected
under the African Charter on the territory of the Respondent State.
7. Concerning the requirements
of Article 56(3), the Complainant also argues that its Communication is
written in a respectful language and thus meets the requirements of the African Charter.
8. The Complainant further argues that the present Communication complies with the requirements of
Article 56(4) of the African Charter, adding that the facts recounted in its Complaint are contained in
various reports issued by non-governmental organizations and the United Nations, and the annexes to
the Communication include, in addition to the Complainant's statement, the official judgment of the
OMT of North Kivu, the copy of the letter addressed to the Governor of North Kivu and the notification
order issued by the Registrar of the OMT.
9. On the requirement of exhaustion of local remedies as required under Article 56(5), the Complainant
states that she has exhausted all local remedies. She submits that in the present case the State has been
served with the judgment of the OMT and that beyond the notification, local remedies to enforce the
judgment are unavailable, ineffective and insufficient.
o. The Complainant further argues that in this case, the requirements of Congolese law go well beyond the
"cooperation of the creditor" that is strictly necessary for the State to be able to pay the debt determined in
the judgment, such as providing bank details. Instead, under Congolese law procedures, it is up to the
individual to act to force implementation by the State.
1. The Complainant further avers that the State has had ample notice of the alleged violations; first through
the Complainant's 2008 Complaint, and then through its proceedings against Sergeant Chance. The
courts issued the compensation order in November 2008, and the Registrar notified the Executive of its
obligation to pay the amount determined in the judgment on 17 October 2013;the State was thus given
ample notice not only of the violations, but also of its own liability.
2. The Complainant
indicates that enforcement under these procedures is essentially discretionary, as
Congolese law prohibits the seizure of government property, which means that the victim must rely on
the goodwill of the government to voluntarily enforce reparation obligations. In support of her
arguments on this point, the Complainant cites the Commission's decision in Bissangou v. Congo',
3
Communication 253/02 - Bissan
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3, Regarding the requirement that the Communication be submitted within a reasonable time after the
exhaustion of local remedies as provided for under Article 56(6), the Complainant submits that such a
time limit could only start when it became aware and certain that the Respondent State would not fulfil
its obligations and pay the compensation awarded by the Tribunal. The Complainant states that it was
only in August 2014 that she became aware with certainty that, despite all efforts, it would not obtain
the compensation awarded by the Tribunal, and that the Communication was therefore lodged within
a reasonable time,
4, On the requirement of Article 55(7),the Complainant states that the Communication has not been subject
to any other procedure.
Respondent State's Arguments on Admissibility
5. The Respondent State has not submitted
its observations on the Admissibility of this Communication
despite repeated requests to do so'by the Secretariat.
Commission's Analysis on Admissibility
6. This Communication has been submitted in accordance with Article 55 of the African Charter which
mandates the Commission to receive and consider Communications other than those from States Parties.
In order to be declared admissible, the said Communications must meet the conditions laid down under
Article 56 of the African Charter.
7. From the consideration of the Complainant's
submissions, it appears that the requirements listed under
paragraphs I, 2,3 and 4 of Article 56 of the African Charter are met. The Complaint received by the
Commission fulfils the said conditions.
8. The Commission notes the compliance with Article 56(1) of the African Charter by mentioning the
identity of the author and her representatives.
9. The Commission finds that the Complaint complies with Article 56(2) of the African Charter by
denouncing the violation of specific provisions of the African Charter.
O. The Commission accepts that the Complaint adheres to Article 56(3) of the African Charter in that the
Communication does not contain any disparaging or insulting language.
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1. The Commission
notes that the Complainant's allegations are not based exclusively on information
provided by the mass media. It notes that the facts recounted in the Complaint are contained in various
reports issued by non-governmental organizations and the United Nations and the annexes to the
Communication include, in addition to the Complainant's statement, the official judgment of the OMT
of North Kivu, the copy of the letter addressed to the Governor of North Kivu as well as the notification
order issued by the Registrar of the OMT. The Commission acknowledges compliance with Article 56(4)
of the African Charter.
2. On the requirement of exhaustion of local remedies established by Article 56(5), the Commission, in its
jurisprudence, has established that a remedy is considered available if the petitioner can pursue it
without impediment, it is deemed effective if it offers a prospect of success, and it is found sufficient if
it is capable of redressing the complaint. The Commission has also established in its jurisprudence that
the remedies required to be exhausted before a communication procedure is initiated before the
Commission are those ordinary remedies available in the courts and accessible to the individual+ In this
case, the Commission agrees with the Complainant that the only action the latter could take would be
to ensure that the judgment was notified to the State. The Complaint concerns the execution of a
judgment handed down on 5 November 2008 in which Sergeant Chance and the State, in solidum, were
ordered to pay damages. The Commission notes that there is no other judicial remedy available in this
case, as recognized in the Commission's jurisprudence, and that the means of enforcement to compel the
State to pay damages are administrative in nature and their implementation is discretionary.
3. On the reasonable
time requirement under Article 56(6), the Commission is not convinced by the
Complainant's argument that she tried to communicate with the Registrar of the Tribunal on several
occasions regarding the judgment of 17 November 2008but without success. However, the Commission
notes that the judgment was notified to the executive by the Registrar of the North Kivu OMT only on
17 October 2013. In its jurisprudence, the Commission has accepted in subsequent precedents that the
determination of the "reasonable time" to file a Communication must be done on a case-by-case basis,
depending on the circumstances of each case>. In this case in point, it is reasonable for the Complainant
to bring the matter before the Commission only after it has become aware of the State's unwillingness to
remedy the damage in accordance with the judgment of which it is duly notified. In the present case, the
Commission concludes that the reasonable period of time can be considered to begin to run only after
28 July 2014,the date on which the Complainant referred the matter to the Office of the Governor of the
Communication 242/01 - lnterights, the Institute for Human Rights and Development in Africa, and j'Association
mauritanienne des droits de I'Homme v. Mauritania.
- Communication 147/95-149/96 Sir Dawda K. [awara v. The Gambia
4 -
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Province of North Kivu in order to require the State to fulfil its obligation to pay the compensation
awarded to the Complainant by the OMT. In light of this and the date of receipt of the Complaint, the
Commission considers that the condition under Article 56(6) of the African Charter has been met.
4. Finally, with regard to Article 56(7), the Commission based itself on the information submitted by the
Complainants to find that the Communication did not concern a case that had been settled in accordance
with the principles of the United Nations Charter or the Constitutive Act of the African Union, or the
African Charter. It therefore concludes that the condition set out under Article 56(7) of the African
Charter has been met.
Commission's
Decision on Admissibility
5. Based on the foregoing
and after analysis of the Complainant's submission, the Commission declares
the Communication Admissible.
Merits
Complainant's
Arguments on Merits
6. The Complainant alleges a violation of Articles 1, 2, 5, 7, 14 and 18 (3) of the African Charter, and Articles
2, 4(2)(£),8, 11 and 25 of the Protocol to the African Charter on the Rights of Women in Africa (Maputo
Protocol), for which it has submitted the following submissions and arguments on the merits.
Alleged Violation of Article 5 of the African Charter
7. The Complainant
first refers to the definition of torture under Article 1 of the UN Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to which the African
Commission» refers and Article 5 of the African Charter which prohibits all forms of "physical or mental
torture, cruel, inhuman or degrading treatment or punishment". It adds that the African Commission also
relied on the jurisprudence of the European Court of Human Rights (ECtHR)7, according to which
torture is characterized by "deliberate inhuman treatment causing severe and cruel suf£ering"8 .
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8. The Complainant recalls that the Commission has confirmed that acts of rape and the failure to prevent
and respond to acts of rape constitute a violation? of the prohibition of torture and other ill-treatment
and thus a violation of Article 5. She asserts for example that, in the case of Fernandez Ortega v. Mexico'?
, the Inter-American Court of Human Rights (IACtHR) found that the rape of a woman in her horne by
a soldier constituted an act of torture.
9. On the reference to rape as an act of torture regarding the gravity threshold, the Complainant states that
international human rights bodies'! have explicitly recognized that the physical, psychological and
emotional pain and suffering caused by an act of rape is so severe that it constitutes torture.
o. The Complainant further avers that under international criminal law, rape has been recognized as
automatically meeting the threshold of torture as it is a crime of a grave and cruel nature, with a
devastating impact on victims. According to the Appeals Chamber of the International Criminal
Tribunal in the Kunarac case, it has been recognized that "certain acts establish by themselves the
suffering of those who undergo them. Rape is obviously one of these"12.
African Commission, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v. Sudan,
Comm. No. 279/03-296/05, para. 157; Malawi African Association et al. v. Mauritania, Comm. No. 54/91, 61/91, 96/93,
98/93,164/97,196/97,210/98,
para. 118; see also Institute for Human Rights and Development in Africa (on behalf of Sierra
Leonean refugees in Guinea) v. Guinea, Comm. See also UN Human Rights Committee, General Comment No. 28: Equality
of Rights between Men and Women (Article 3), CCPR/C/21/Rev.1/
Add.10, 29 March 2000, para. 11 (hereinafter 'Human
Rights Committee, General Comment No. 28').
See, for example, Inter-American Commission on Human Rights (IACHR), Raquel Marti de Mejia v. Peru (1996), Case 10.970,
Report No. 5/96, Decision of 1 March 1996; European Court of Human Rights (ECtHR), Aydin v. Turkey (1997), Appl. No.
57/1996/676/866,25 September 1997, in particular para. 83 (liThe rape of a detainee by a state agent must be regarded as a
particularly serious and odious form of ill-treatment, given the ease with which the aggressor can abuse the victim's
vulnerability and frailty. Moreover, rape leaves deep psychological wounds in the victim which do not fade as quickly as
other forms of physical and mental violence.) In this case, the ECtHR concludes that even if the only grounds for the
complaint had been the act of rape, without the other forms of ill-treatment that the victim had suffered, the ECtHR would
still have found that the treatment of the victim (rape) constituted an act of torture, in violation of Article 3 of the European
Convention on Human Rights (para. 86)
10 IACtHR, Fernandez Ortega v. Mexico, Series C No. 215, Judgment (Merits, Reparations and Costs) of 30 August 2010, para.
128: "[...] Rape may constitute torture, even if it is based on a single fact and takes place outside of State establishments, such
as in the victim's home. This is so because the objective and subjective elements that classify an act as torture refer neither to
the accumulation of facts nor to the place where the act is committed, but to the intention, the severity of the suffering, and
the purpose of the act, conditions which, in this case, were met.
11 See, in particular, Mejia v. Peru (IACtHR, Raquel Marti de Mejia v. Peru (1996), Case 10.970, Report No. 5/96, Decision of
1 March 1996; ECHR, Aydin v. Turkey (1997), Req. No. 57/1996/676/866,25
September 1997.), V.L. v. Switzerland (UN
Committee against Torture, V.L. v. Switzerland, CAT/C/37/D/262/2005,
20 November 2006, para. 8.10.) and Miguel Castro
Castro Prison v. Peru (IACtHR, Miguel Castro Castro Prison v. Peru (2006), Series C No. 160, Judgment (Merits, Reparations
and Costs), 25 November 2006.) and IACtHR, Fernandez Ortega v. Mexico (2010), Series C No. 215, Judgment (Merits,
Reparations and Costs) 30 August 2010, para. 124.
/-\-IU~~AN
II
12 International
Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Kunarac, IT-96-~~~l,if\tldir{?e(1t
of
the~peals
Chamber, 20 June 2002, paras. 150-151.
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1. The Complainant
recognizing
argues
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that the recognition
that rape is an intentional
the criteria of intent and purpose
analysis of the perpetrator's
discrimination
and intimidation,
behind an act of torture
role in
rather than
to the UN Committee
lido not involve a subjective
objectively in light of the circumstances'<+
motives and must be determined
.It also states that, international
(particularly
act of humiliation,
plays an important
sexual impulses's . She adds that according
the natural result of the perpetrators'
against Torture,
of rape as a form of torture
criminal tribunals have stated that it is difficult to imagine circumstances
in conflict situations)
in which a rape committed
consent of, a state agent could be considered
to have a purpose
by, or at the instigation
of, or with the
other than to punish, coerce, discriminate
or intimidate'>.
2. The Complainant
intimidation,
submits
that in addition
rape has other purposes,
namely the degradation
and the communityt« and discrimination
3. The Complainant
explains
women disproportionately,
a prohibited
purpose
this has been recognized
for the offence of torture.
that these acts have certainly
purposes,
including
interrogation,
Accordingly,
this case constitutes
torture
of obtaining
information,
and humiliation
punishment
and
of the victim, her family
based on sex or gender-".
that where rape is targeted
recognized
discrimination.
to the purposes
involved
because she is a woman,
as a form of discrimination-"
against
causing severe pain and suffering
punishment,
considers
reprisal,
or affects
, thus demonstrating
It states that the UN Committee
intimidation,
the Committee
at a woman
Torture
has
for impermissible
humiliation
and
that the sexual abuse committed
gender
by the police in
[... ]11"19 .
See Amnesty International, Rape and Sexual Violence: Human Rights Law and Standards in the International Criminal
Court, March 2011, p. 39, available at: www.amnesty.org/ download/Documents/32000/ior530012011en.pdf
(hereinafter
«Amnesty International Report »).
14 UN
Committee against Torture, General Comment No.2:
Implementation
of Article 2 by States Parties,
CAT/C/GC/2/CRP.1/RevA,
23 November 2007, para. 9.
15 ICTY, Prosecutor v. Delalic, IT-96-21, Trial Chamber Judgment, 16 November 1998, para. 495.
16 IACtHR, Raquel Marti de Mejia v. Peru (1996), Case 10.970, Report No. 5/96, Decision of 1 March 1996.
Ibid, section V(B)(2).
See, for example, International Criminal Tribunal for Rwanda, Prosecutor v. Akayesu, ICTR-96-4-T, Trial Chamber Judgment,
2 September 1998, para. 687; ICTY, Prosecutor v. Furundzija, IT-95-17/1-T, Trial Chamber Judgment, 2 September 1998, para.
687. Akayesu, ICTR-96-4-T, Trial Chamber Judgment, 2 September 1998, para. 687; ICTY, Prosecutor v. Furundzija, IT-9517/1-T, Trial Chamber Judgment, 10 December 1998, para. 162; UN Committee against Torture, V.L. v. Switzerland,
CAT/C/37/D/262/2005,
20 November 2006, para. 8.10.
172008 Report of the Special Rapporteur
on Torture, para. 30.
18 CEDAW, General Recommendation
No. 19, para. 6; see also, Committee on Economic, Social and Cultural Rights, General
Comment No. 16, The equal right of men and women to the enjoyment of all economic, social and cui (\'iJjgb~rt~
of
the International Covenant on Economic, Social and Cultural Rights), E/C. 12/2005/4,11 August 20 6:pai~El7/.H/4r .o(''o~
19 UN Committee against Torture, V.L. v. Switzerland, CAT/C/37/D/262/2005,
20 November 200 ~ ra~8
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4. The Complainant submits that, in relation to this case, the courts of the Respondent State have
established that Sergeant Chance, a soldier in the State's armed forces, raped her on 29 October 2008,
and that the State is responsible for his actions.
5. The Complainant
states that in view of the above, this rape unequivocally constituted an act of torture,
automatically meeting the corresponding gravity threshold, and having inherent purposes of
intimidation, discrimination, humiliation and degradation.
Alleged Violation
of the Right to Personal Integrity under Article 4(1) of the Maputo Protocol
6. The
Complainant asserts that her rape constitutes a violation of her right to personal integrity,
guaranteed by Article 4(1) of the Maputo Protocol which states that "Even) woman has the right to respect
for her life, physical integrit)l and security of person. All forms of exploitation, punishment and inhuman or
degrading treatment shall be prohibited".
7. The Complainant
further indicates that, as discussed above in relation to the violation of Article 5 of the
African Charter, the rape of an individual is an extremely serious and paradigmatic violation of their
physical and psychological integrity-? . Indeed, it is such a serious violation of physical integrity that it
is considered a form of torture. Therefore, it concludes that there has been a violation of Article 4(1) of
the Maputo Protocol in the present case.
Alleged Violation
Constituting
Gender Discrimination
under Article 2 and 18(3) of the African
Charter and Article 2 of the Maputo Protocol
8. The Complainant
begins by recalling the provisions of Articles 2 and 18(3) of the African Charter and 2
of the Maputo Protocol, which provide respectively that "Every person shall be entitled to the enjoyment of
the rights and freedoms recognized and guaranteed in this Charter without distinction of any kind, such as ... sex".
" The State shall have the duty to ensure the elimination of all discrimination against women and the protection of
the rights of women and the child as provided for in international declarations and conventions" and "States
(parties) shall combat discrimination against women in all its forms by adopting appropriate legislative,
institutional and other measures".
9. The Complainant
states that in developing jurisprudence on the above Articles, the Commission relies
on a considerable body of treaties, declarations, case law and other sources that recognize gender-based
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violence as a form of discrimination, including the UN Declaration on the Elimination of Violence
against Women-" and more recent decisions= .
O.The Complainant adds that, on the interpretation of the above-mentioned texts, the State has an
obligation to refrain from any act of violence or ill-treatment that adversely affects the enjoyment of the
rights of women as full members of society. It states that this applies in particular to acts of rape, which
is recognized as a violation of the prohibition of discrimination-' .
1. The Complainant
asserts that in the case of Egyptian Initiative for Personal Rights & INTERIGHTS v.
Egypt, the African Commission confirmed that it "shares the view of CEDAW that violence against women
affects, impairs or destroys the enjoyment and exercise of human rights and fundamental freedoms by women in
different spheres of life. In this regard, the African Commission considers that violence against women is aform of
discrimination against them"24 .
2. In the present
case, the Complainant claims that the actions of the Respondent State's soldier are
discriminatory and an affront to her dignity as a female human being.
3. The Complainant describes that under the above Articles, the State has an obligation to respond to
gender-based violence, such as rape-", which is recognized as a form of discrimination=. She adds that
the UN Human Rights Committee has further stated that States must ensure "the elimination of obstacles
to the equal enjoyment of these rights" and take "positive measures in all aspects to ensure the realization
of the potential of women on an equal basis with the rest of the population". She concludes that such an
obligation is also contained in Articles 2 and 18(3) of the African Charter and compels States to take the
necessary measures to ensure that adequate protection against gender-based violence is put in place.
UN Declaration on the Elimination of Violence against Women, A/RES/48/104/,
20 December 1993, available at
www.un.org/fr/ documents/ view _doc.asp?symbol=A/RES/48/104.
22 Southern African Development Community (SADq, Prevention and Eradication of Violence against Women and Children
(Addendum to the SADC Declaration on Gender and Development), 14 September 1998, available at
www.achpr.org.en/instruments/eradication-violence-woman-sadc-addendium;
Economic Community of West African
States (ECOWAS), Community Court of Justice, Hadijatou Mani Koraou v. the Republic of Niger, Application No.
ECW/CCJ/ APP/08/08, Judgment No. ECW/CCJ/JUD/06/08
of 27 October 2008, paras. 62-71 (available at
www.refworld.org/docid/491168d42.html
).
23 See 2008 Report of the Special Rapporteur 011 Torture; CEDAW, General Recommendation No. 19, para. 9; see for more
information the case law cited in the previous section.
24 African Commission, Egyptian Initiative for Personal Rights & INTERIGHTS v. Egypt, Comm. No. 323/06, 16 December
2011, para. 165.
2S See, for example, Human Rights Committee, General Comment No. 28, para. 8; Human Rights Committee; Concluding
Observations on Guatemala, CCPR/C/GTM/CO/3,
19 April 2012, para. 19; Human Rights Co
1\
ct.ing
Observations on Yemen, CCPR/C/YEM/CO/5, 23 April 2012, para. 9.
o"'~(,~Clt."i4r "'<0
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The victim finally submits that the situation in the Respondent State, as recognized by the African
Commission in its Resolution 284, further creates an environment conducive to the commission of rape.
Alleged violation of the obligation to protect women from gender-based
violence in armed
conflict under Article 5 of the African Charter and Article 11 of the Maputo Protocol
4. The Complainant first recalls the provisions of Article 11 of the Maputo Protocol which states that "1.
States [parties] undertake to respect and ensure respect for the rules of international humanitarian law applicable
in situations of armed conflict affecting the population, particularly "Women.2. States [Parties] shalt in accordance
with their obligations under international humanitarian law, protect civilians, including women, irrespective of
the population to 'which they belong, in situations of armed conflict".
5. The Complainant
then asserts that it is recognized that lithe extent and sustained nature of the armed
violence, and the level of organization of the non-State armed group involved in the fighting means
that the situation in the Respondent State, including in 2008, has reached the threshold of an armed
conflict, and that international humanitarian law therefore applies= . She adds that as a noninternational armed conflict, Article 3 common to the 1949 Geneva Conventions and customary
international humanitarian law applies to all parties to the conflict, both State and non-State actors= .
Thus, the core obligations applicable in such a conflict include the prohibition of attacking any civilian
not directly participating in hostilities, and the prohibition of rape and torture-".
II
6. The Complainant states that the African Commission has emphasized
that, with respect to Article 5 of
the African Charter, it applies at all times, including during armed conflict, and that State parties have
an obligation to protect civilians in conflict, including against violations of Article 530 . She further
indicates that the Commission found, for example in Sudan Human Rights Organisation & Centre on
Housing Rights and Evictions (COHRE) v. Sudan, that the State IS failure to protect women from human
Geneva Academy of International Humanitarian Law and Human Rights, Rule of Law in Armed Conflicts: Democratic
Republic of Congo; Elizabeth Wilmshurst, International Law and the Classification of Conflicts, Oxford University Press,
Oxford, 2012, pp. 189-192.
28 Andrew Clapham, Human rights obligations of non-State actors in conflict situations, International Review of the Red
Cross, Volume 88 No. 863, September 2006, p. 498, available at www,icrc.org!eng!assets!files!other!irrc
863 clapham.pdf.
29 Ibid; see, for more information, International
Committee of the Red Cross, Customary International Humanitarian Law,
Rule 93. Rape and other forms of sexual violence.
30 See, for example, African Commission,
Amnesty International and Others v. Sudan, Comm. No. 48/90-50/91-52/91-89/93,
para. 42; see also, CEDAW, General Recommendation No. 30, stating at para. 2 that "States parties remain.under an obligation
to fulfil their obligations in times of conflict or emergency withou t discrimination between nationals
within
their territory or in territories under their jurisdiction, even if such territories are not within the S~¢l.a~.
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rights violations, such as rape by its armed forces during the conflict in Darfur, constituted, inter alia, a
violation of Article 531 .
7. The Complainant
therefore concludes that the rape she suffered at the hands of the Respondent State's
soldier is therefore in breach of the obligation to respect the rules of international humanitarian law,
under Article 11(1)of the Maputo Protocol, and to protect civilians, under Article 5 of the African Charter
and Article 11(2).
Alleged Violation of the Right to Property under Article 14 of the African Charter
8. The Complainant
recalls that Article 14 of the African Charter provides that "The right to propertij is
guaranteed. It shall not be infringed except by public necessiti] or in the general interest of the community, in
accordance with the provisions of relevant luios",
9. The Complainant describes that the judgment of 17 October 2008 establishes that Sergeant Chance
committed the war crime of looting, by stealing her and her husband's savings, in the amount of $120,
as well as a radio. She states that although the radio was returned during the proceedings, the savings
were not.
O. The Complainant affirms that the African Commission has confirmed that Article 14 also applies in times
of conflict and that "the Respondent State has a fundamental obligation and responsibility to provide the
conditions and means for the protection of life and propertu, in times of peace as well as in times of unrest and
armed conftict=>. The Commission agreed with the ICTY'sCelibici Judgment that "private property must
be respected and may not be confiscated [...] [and that] looting is strictly prohibited'<' .
1. The Complainant
explains that the taking of her property cannot be justified as having been in the
interest of public necessity or the general interest of the community, nor in accordance with the law, as
demonstrated by the criminal judgment convicting Sergeant Chance of the crime of pillage.
Alleged Violation of the Right to a Fair Trial under Article 7 of the African Charter and the Right
of Access to Justice under Article 8 of the Maputo Protocol
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2. The Complainant submits that the African Commission and other human rights bodies have established
that the non-enforcement of a national court judgment against the State gives rise to a violation of the
right to a fair trial. In this regard, it recalls that in the case of Bissongou v . Cong034, where the Republic
of Congo had not paid the compensation awarded by its courts to the Complainant, the African
Commission concluded that there had been a violation of Article 7 concerning the right to a fair trial "[...}
the right to be heard guaranteed by Article 7 of the African Charter includes the right to the execution of a
judgment. It would indeed be inconceivable that this Article grants the right to bring before national courts any
act violating fundamental rights without guaranteeing the enforcement of judicial decisions. To interpret Article
7 otherwise would lead to situations incompatible with the rule of law. Consequently, the enforcement of a final
judgment given by any court or tribunal must be considered as an integral part of the right to be heard protected
by Article 7"35 .
3. The Complainant states that this is an international practice, and in the ECtHR jurisprudence the Court
has stated that "the right of access to a court guaranteed by Article 6 §1 of the Convention would be illusory if
the domestic legal order of a Contracting State allowed afinal and binding judicial decision to remain inoperative
to the detriment of a party. The enforcement of a judgment, by 'whatever court, must be considered an integral part
of the proceedings within the meaning of Article 636 . She adds that the ECtHR has consistently held that
under Article 6 of the European Convention on Human Rights, the execution of a judicial decision must
not be unduly hindered, set aside or delayed. With regard to the period of time within which, according
to the ECtHR, national authorities must comply with the decisions of their own courts, the ECtHR has
consistently determined that the period of enforcement "should not generally exceed six months from the
time when the compensation decision becomes enforceabie'v",
4. The Complainant further indicates that the ECtHR jurisprudence holds that "it is not appropriate to require
an indioidual who has obtained a claim against the State as a result ofjudicial proceedings to have to subsequently
initiate enforcement proceedings in order to obtain satisfaction 1138; requiring a person to initiate separate
34 African
Commission, Bissangou v. Congo, Comm. No. 253/02.
35 Ibid. Para. 75.
ECtH:R [GC], Scordino v. Italy (No.1) (1996), Appl, No. 36813/97,29 March 2006, para. 196; see also ECHR, Hornsby v.
Greece (1997), Appl, No. 18357/91,19 March 1997, para. 40 ff; ECHR, Metaxas v. Greece (2004), App!. No. 8415/02, 27 May
2004, para. 25; ECtH:R, Musci v. Italy (2006), App!. No. 64699/01, 29 March 2006, para. 88.
37 ECtHR, Cocchiarella v. Italy (2006), Appli. No. 64886/01, 29 March 2006, para. 89; ECtHR, Scordino v. Italy (No.1) (1996),
Appli. No. 36813/97, 29 March 2006, para. 198.
Human Rights Committee, Sechremelis et al. v. Greece, Comm. No. 1507/2006, CCPR/C/I00/D/1507/2006
(2011), para.
10.4.
38 ECtHR, Puleva and Radeva v. Bulgaria (2012), Appli. No. 36265/05, 14 February 2012, para. 40; E~tC ~afuxa!i':y.,
Gr,eece
(2004), Reg. No. 8415/02, 27 May 2004, para. 19; ECtHR, Burdov v. Russia (No.2) (2009), Appli. N . ~9<tU4;''¥M~1(6009,
•"
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enforcement proceedings results in a violation of the right to a fair trial-? . Instead, the Court states that
"it is for the Contracting States to organize their judicial systems in such a way that their competent authorities
can discharge their obligations" to ensure the enforcement of enforceable judgments within a reasonable
timew.
5. The Complainant
also recalls the provisions of Article 8 of the Maputo Protocol, which provides that
"toomen and men shall enjoy equal rights before the law and shall enjoy the equal protection and benefit of the law.
States [Parties) shall take all appropriate measures to ensure (a) the effective access of women to legal and judicial
assistance and services [...}".
6. The Complainant asserts that in the present case, the non-enforcement of the court's judgment
constitutes a violation of her right to a fair trial and hinders her effective access to judicial services, in
that access does not lead, for her, to any result. Consequently, she denounces the violation of Article 8
of the Maputo Protocol.
Alleged Violation of the Right to a Remedy under Articles 1, 7 and 5 of the African Charter and
Articles 25 and 4(2)(f) of the Maputo Protocol
7. The Complainant
underscores that the right to an effective remedy is central to Articles 1 and 7 of the
African Charter and is explicitly enshrined in Article 25 of the Maputo Protocol. She states that Article
4(2)(f) of the Maputo Protocol also includes a specific obligation for States to "establish accessible
mechanisms and services to ensure information, rehabilitation, and effective compensation for 'women victims of
violence [...}".
S. The Complainant adds that the right to a remedy, in turn the right to reparation, and the right to a fair
trial was also the subject of a specific resolutions! adopted by the African Commission. She asserts that
the resolution states that '[...} Everyone whose rights and freedoms have been violated has the right to an effective
remedy. This right implies that the individual 'whose rights have been violated should be able to present his or her
claim before ajudicial body, which has the competence and powers to pay adequate reparation for the harm suffered,
and which shall decide on the claim within a reasonable period of time"42.
Ibid.
ECtHR, Burdov v. Russia (No.2) (2009), Appl. No. 33509/04, 4 May 2009, paras. 68-70, citing ECtHR, Comingersoll S.A. v.
Portugal [GC], AppL No. 35382/97, para. 24, ECtHR 2000-IV, and ECtHR, Frydlender v. France [GC], Appl.
4'1 African Commission, Resolution on the Right to a Remedy and Reparation for Women and Girls Victims of Sexual Violence,
adopted by the African Commission on Human and Peoples' Rights at its 42nd Ordinary Session held in Brazzaville, Republic
of Congo, 15-28 November 2007.
\\ \\U~·A. /'\D
42 Article 1 of the Resolution on the Right to a Remedy and Fair Trial, adopted by the African C , c: mi~<frHHI1?Iu~'and
Peoples' Rights, meeting_at its 26u10rdinary Session, held in Kigali, Rwanda, 1-15 November 199 .~/ c,
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9. The Complainant also describes that in the 2002 Robben Island Guidelines Resolution, the African
Commission called on States to ensure that the victim of an act of torture, and any dependants, have
access to appropriate medical care, the means for social rehabilitation and medical rehabilitation, and
adequate compensation and support. She further states that the African Commission also frequently
grants reparations to victims whose rights under the African Charter have been violated= .
O.The Complainant states that the right to remedy and reparation is also recognized by other international
instruments and bodies including CEDAW which, in General Recommendation No. 30, states that "The
Committee reminds States parties that their obligations also require that they provide 'women with the right to
remedy, that is to say, the right to effective and adequate reparation for violations of their rights under the
Convention [CEDAW]"44 .
1. The Complainant argues that according to the Guidelines and Principles on the Right to a Fair Trial and
Legal Assistance in Africa, the right to an effective remedy includes access to justice, reparation for harm
suffered and access to factual information about violations. The Complainant reports in this sense that,
as the Committee has recognized, 'if redress is not provided to those whose rights ... have been violated, the
obligation to provide an effective remedy ... is not fulfilled'45.
2. The Complainant
asserts that the Respondent State was found by its own court to be responsible for
Sergeant Chance's actions, and was required to pay her damages. She explains that by failing to do so,
the State failed to provide effective remedies for the violations committed against her, as required by
Articles 1 and 7, read in conjunction with Articles 5 and 14 of the African Charter, and by Article 25, read
in conjunction with Article 4(2)(£)of the Maputo Protocol.
3. The Complainant emphasizes that regional and international human rights bodies recognize that the
obligation to provide reparation for serious violations generally requires the award of appropriate
See, for example, African Commission, Amnesty International and Others v. Sudan, Comm. No. 48/90,50/91, 52/91, 89/93
; Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l'Homme et RADDHO,
Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l'Homme v. Mauritania Comm. Mauritania
Comm, Nos. 54/91, 61/91, 98/93, 164/97 to 196/97 and 210/98; Egyptian Initiative for Personal Rights and Interights v,
Egypt, Communication No. 334/06; for an overview of the African Commission's approach and jurisprudence on the right
to reparation, see REDRESS, «Accessing Justice - The Right to Reparation in the African Human Rights System', October
2013, available at www.redress.org/ downloads/ publications/1312french-reaching-for-justice-151013-french.pdf
44 CEDAW, General Recommendation
No. 30 on women in conflict prevention, conflict and post-conflict situations,
CEDAW/C/GC/30, 18 October 2013, para. 79.
." _"
45 Human Rights Committee, General Comment No. 31: The nature of the general legal obligatio ~p(;}!;eatUn.§tates parties
to the Covenant, CCPR/C/21/Rev.1/ Add.13, 29 March 2004, ara.16.
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Human and Peoples' Rights
compensatiorr".
She adds that while in the present
owed to her by the Respondent
case she focuses on the payment
State, it is important
to emphasize
of compensation
that in the case of serious violations
such as those committed
in the present case, reparations
should also involve restitution,
measures
and guarantees
of non-repetition
such as changes in law and practices".
argues that according
to international
jurisprudence,
of satisfaction
4. The Complainant
a human rights violation,
se48.
per
She further
reparation
constitutes
compensation
but fails to provide adequate
indicates
that in the jurisprudence
a "procedural"
for ill-treatment,
or provides
of the European
where a State is responsible
this failure will constitute
of the ECtHR, failure
compensation
a "procedural"
Convention
on Human
a violation
to provide
at a level below what it considers
violation
for
adequate
if a State fails to provide
violation of the relevant law. Accordingly,
States may be found to have committed
other ill-treatment)
reparation,
rehabilitation,
of Article 3 (prohibition
appropriate,
of torture and
Rights49 . In the same vein, the IACtHR
found that the State party was in violation of the right to judicial protection,
and of the general obligation
in Article 1(1) to respect and ensure rights50 .
5. The Complainant
compensation,
alleges that the Respondent
by not enforcing
the judgment
State has failed to provide
an effective remedy,
of its own court awarding
compensation.
including
Alleged Violation of the Right to Property under Article 14 of the African Charter
6. The Complainant
states that the jurisprudence
of a State to pay a compensation
right to property
protected
of the African Commission
award made in a court judgment
has established
constitutes
that the failure
in itself a violation
of the
by Article 14 of the African Charter. She explains that in Bissangou v. Congo,
ibid; see, for example, ECtHR, Kopylov v. Russia (2010), Appl. No. 3933/04, 29 July 2010, para. 130 (in the case of a violation
of Article 3 of the Convention, compensation for the material and moral damage arising from the violation must in principle
be available within the range of remedies); see, for further information, UN Basic Principles and Guidelines on the Right to
a Remedy and Reparation, para. 20; UN Convention against Torture, Article 14; Inter-American Convention to Prevent and
Punish Torture, Article 9.
47 See, for example, UN Basic Pri.nciples and Guidelines on the Right to a Remedy and Reparation; CAT, General Comment
No.3, paras. 2, 6-18
48 Human Rights Committee, Horvath
v. Australia, Comm. No. 1885/2009, CCPR/C/1l0/D/1885/2009,
27 March 2014,
paras. 8.5 and 8.8.
Ibid, para 8.6.
49 See, for example, ECtHR, Kopylov v. Russia (2010), App!. No. 3933/04, 29 July 2010, paras. 143-150.
50 IACtHR, Acevedo Jaramillo et al. v. Peru, Series C No. 144, Judgment (Preliminary Objections, Merits, Reparations and
Costs) of 7 February 2006, para. 220.
Ibid, para. 278; IACHR, Access to Justice as a Guarantee of Economic, Social and Cultural Rights: A S,!ud_yof the Rules
Established by the Inter-American System of Human Rights, Chapter V: The Substance of the Right t -t1~~tiveI'J~~dJctional
Protection against Violations of Social Rights, 7 September 2007, para. 322.
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drawing on the jurisprudence of the ECtHR under Article 1 of Protocol No. 1 to the European
Convention on Human Rights, the African Commission held that "monetary compensation awarded in
a judgment which has acquired the authority of res judicata must be considered as property.
Accordingly, the Respondent State's unmotivated refusal to honor the final judgment in favor of the
Complainant impeded the enjoyment of her property?'.
7. Consequently, the Complainant
claims to have been the victim of a violation of Article 14 of the African
Charter.
Alleged Violation of Article 1 of the African Charter
8. The Complainant submits that all the violations denounced in this Communication demonstrate the
failure of the Respondent State to put in place a system that would allow for the effective enforcement
of court-ordered compensation awards in cases involving serious human rights violations for which it
is responsible. Thus, it is in violation of Article 1 of the African Charter, which provides that "Member
States of the Organization of African Unity, parties to the present Charter, shall recognize the rights, duties and
freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them ".
9. The Complainant asserts that the submissions in the Initial Complaint of November 2014show how the
legislative and practical environment in the Respondent State creates almost insurmountable obstacles
to the enforcement ofjudgments including complex procedures, exorbitant fees and corruption resulting
in non-payment of many, if not all, of the compensation awards ordered by the courts.
00. The Complainant describes that in order to give effect to the rights to an effective remedy, a fair trial
and to property, States must employ all appropriate means and organize their legal systems in such a
way as to ensure the enforcement of such court orders'<. Thus, to avoid recurrence of violations,
including under Article I, the Complainant asserts that the Respondent State should reform its
legislation and practices to ensure prompt payment of court-ordered compensation awards against it.
Respondent State's Arguments on Merits
African Commission, Bissangou v. Congo, Comm. No. 253/02, para, 76.
Human Rights Committee, Horvath v. Australia, Comrn. No. 1885/2009, CCPR/C/llO/D/1885/
par_as.8.5 and 8.8.
SI
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01. The Commission notes that after the submission of the arguments on the merits of the
Communication by the Complainant, these were transmitted to the Respondent State.
02. The Commission notes, moreover, that the State party has not submitted its arguments on the merits
of the Communication despite the Secretariat's invitations to do so.
Accordingly, and in line with its practice, the Commission will decide on the sole basis of the evidence
submitted by the Complainant.
03.
Commission's Analysis on Merits
On the Alleged Violation of Article 5 of the African Charter, Article 4(1) of the Maputo Protocol,
Article 2 and 18(3) of the African Charter, Article 2 of the Maputo Protocol, Article 11 of the Maputo
Protocol and Article 14 of the African Charter
04. The Commission recalls the rights guaranteed by the Articles referred to by the Complainant,
respectively Article 5 of the African Charter on the prohibition of torture and all cruel, inhuman or
degrading treatment or punishment, Article 4(1) of the Maputo Protocol on the right to personal
integrity, Articles 2 and 18(3) of the African Charter and Article 2 of the Maputo Protocol on the
prohibition of discrimination on the basis of gender, Article 11 of the Maputo Protocol on the obligation
to protect women from gender-based violence in armed conflict and Article 14 of the African Charter on
the right to property.
05. The Commission notes, in the light of the Complainant's submissions, that in its judgment of 17
November 2008, the Operational Military Tribunal (OMT) of North Kivu in the Respondent State not
only recognized and admitted the rape and theft of the radio and the $120 in savings suffered by the
Complainant, but also sentenced Sergeant Shombo Chance to life imprisonment with resignation from
his duties in the army and restitution of the savings and the stolen radio.
06. The Commission also notes, in the light of the information in its possession, that the above-mentioned
judgment has not been appealed against at the national level and that the decision has therefore become
res judicata.
07. Noting that the violations of the rights guaranteed in the above-mentioned Articles that are the subject
of this Communication have already been acknowledged by the Respondent State, which has begun to
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Commission recognize its violations is pointless and has been rendered meaningless since the judgment
of 17 November 2008.
Alleged violation of the right to a fair trial under Article 7 of the African Charter and the right of
access to justice under Article 8 of the Maputo Protocol on the one hand, and the right to a remedy
under Articles 1, 7 and 5 of the African Charter and Articles 25 and 4(2)(f) of the Maputo Protocol,
on the other.
08. The Commission recalls that Article 1 of the African Charter states that "Member States of the
Organization of African Unity, parties to the present Charter, recognize the rights, duties and freedoms
set forth in this Charter and undertake to adopt legislative or other measures to give effect to them" and
Article 7 that "1. Everyone has the right to have his case heard. This right includes: a. the right to take
proceedings before the competent national tribunals in respect of any 'act violating the fundamental
rights recognized and guaranteed by the conventions, laws, regulations and customs in force [...J".
09. Article 8 of the Maputo Protocol states that "Women and men shall enjoy equal rights before the law
and the right to equal protection and benefit of the law. States shall take all appropriate measures to
ensure: a) the effective access of women to legal and judicial assistance and services [...]", article 25 that
"States Parties to the present Charter shall promote and ensure, through teaching, education and
dissemination, respect for the rights and freedoms set forth in the present Charter, and shall take
measures to ensure that these rights and freedoms are understood together with their corresponding
duties and obligations. ";and article 4(2) that "Statesshall take appropriate and effective measures to [...]
establish accessible mechanisms and services to ensure information, rehabilitation and effective
compensation for women victims of violence".
The Commission first recalls that the initial and basic obligation of States parties to any international
instrument is the establishment of effective measures promoting the full enjoyment of all fundamental
rights by all, as contained in article 1 of the African Charter and article 25 of the Maputo Protocol.
10.
Secondly, in view of the importance it attaches to the right to a fair trial, as set out in Article 7 of the
African Charter, the Commission adopted the Resolution53 on the procedure relating to the right of
appeal and to a fair trial, and the Resolution54 on the Right to a Fair Trial and Legal Assistance in Africa,
in which it described the essence of the right to an effective appeal and the right to a fair trial.
11.
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The Commission describes how the combined reading of these Resolutions establishes, on the one
hand, that any person whose rights and freedoms are violated is entitled to have his or her case heard
within a reasonable time by a competent court and, on the other hand, to receive appropriate redress.
13. With regard to the case in question, the Commission notes that the measures put in place by the
Defendant State promote the right of access to justice and the right to a remedy for victims of human
rights violations.
12.
However, the Commission notes incomplete implementation of the right to an effective remedy as
stipulated in Article 7 of the African Charter and Article 4(2)(f) of the Maputo Protocol.
14.
15. Indeed, the Commission considers that by failing to Rut in place, in the circumstances of this case, the
mechanisms and services required to facilitate the enforcement of the TMO's decision, and more
specifically the effective compensation of the victim through his receipt of appropriate reparation for the
damage she suffered, the Respondent State has failed to comply with the provisions of the
aforementioned articles, as well as with the recommendations made to it by Resolution55.
The Commission would also point out that, according to international case law, including that of the
ECHR, it is "inappropriate to require an individual who has obtained a claim against the State as a result
of legal proceedings to subsequently initiate enforcement proceedings in order to obtain satisfaction"56.
Thus, requiring a person to initiate separate enforcement proceedings gives rise to a violation of the right
to a fair trial57. The Court added that, instead, "[ijt is for the Contracting States to organize their judicial
systems in such a way that their competent authorities can discharge their obligations" to ensure that
enforceable judgments are enforced within a reasonable time58.
16.
Recalling, moreover, its Guidelines and Principles on the Right to a Fair Trial and Legal Assistance in
Africa at their point "P" entitled "VICTIMS OF CRIMINALITY AND ABUSE OF POWER" which
stipulates that "(f)Magistrates, prosecutors and lawyers, as appropriate, should respond to the needs of
victims: 5) avoiding unnecessary delays in the resolution of cases and in the execution of decisions or
17.
Resolution 111(XXXXII)07on the Right to a Remedy and Reparation for Women and Girls Victims of Sexual Violence,
adopted at the 42nd Ordinary Session, held in Brazzaville from November 15 to 28, 2007.
56 CEDH, Puleva et Radeva c. Bulgarie (2012), Reg. n036265/05, 14 fevrier 2012, para. 40; CEDH, Metaxas c. Grece (2004), Req.
n08415/02, 27 mai 2004, para. 19; CEDH, Bourdov c. Russie (n02) (2009), Req, n033509/04, 4 mai 2009, para, 68.
57 Ibid.
58 CEDH, Bourdov c. Russie (n02) (2009), Req. n033509/04, 4 mai 2009, paras. 68-70, citant CEDH, Comingersoll S.A. c.
Portugal [GC], Req. n035382/97, para. 24, CEDH 2000-IV, et CEDH, Frydlender c. France [GC], Req. n030979/96, para. 45,
CEDH 2000-VII.
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CEDH, Cocchiarella c. Italie (2006), Req. n064886/01, 29 mars 2006, para. 89; CEDH, Scordino . ''U...<1·~,f(i{°1)1''(19%)i,Req.
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judgments granting reparation to victims", read in conjunction with Article 8 of the Maputo Protocol,
the Commission finds that the Respondent State has failed in its obligation to provide effective assistance
until effective reparation for the violations suffered by the victim.
18. However, the Commission finds no evidence to suggest that the Respondent State has failed to take
any measures to "promote and ensure, through teaching, education and dissemination, respect for the
rights and freedoms" protected by the African Charter and the Maputo Protocol.
The Commission therefore concludes, in accordance with itsjurisprudence59, that there has been no
violation of article 25 of the Maputo Protocol, and that the Respondent State has violated articles 1 and
7 of the African Charter and articles 4(2)(f)and 8 of the Maputo Protocol.
19.
On the alleged violation of the right to property under Article 14 of the African Charter
Article 14 of the African Charter provides that "The right to property shall be guaranteed. It shall not be
infringed except by public necessibj or in the general interest of the community and in accordance with the
provisions of appropriate laws".
20.
The Commission recalls that in Bissangou v. Congo, it stated that "Monetary compensation awarded
by a judgment which has acquired the authority of res judicata must be considered as property.
Accordingly, the Respondent State's unmotivated refusal to honor the final judgment in favor of the
Complainant impeded the enjoyment of her property's? .
21.
Thus, the Commission established that the failure of a State to pay compensation awarded by a court
decision constitutes a violation of Article 14 of the African Charter and thus of the victim's right to
property.
22.
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Noting in the present case that the Respondent State has not paid the victim the damages decided
and awarded by judgment, the Commission concludes that this non-enforcement infringes the victim's
right to property.
23.
24.
Consequently, the Commission finds a violation of Article 14 of the African Charter.
On the Alleged Violation
of Article 1 of the African Charter
The Commission recalls that Article 1 of the African Charter provides that "Member States of the
Organization of African Unity, parties to the present Charter, shall recognize the rights, duties and freedoms
enshrined in this Charter and shall undertake to adopt legislative orother mea.~ures to give effect to them".
25.
26. The Commission notes, in light of the information provided by the Complainant in this
Communication, that the mechanisms established by the State Party for the enforcement of court
decisions and payment of compensation to victims are not favorable to the latter and do not facilitate
their prompt entry into and enjoyment of their rights.
In view of the foregoing, the Commission concludes that the Respondent State has failed in its duty
to put in place legislative or other measures conducive to the implementation of the rights, duties and
freedoms guaranteed by the African Charter.
27.
28. The Commission therefore recognizes the violation of Article 1 of the African Charter.
On the Reparations Requested
On the enforcement of the OMT judgment
$10,000 decided by the OMT judgment
by the payment of compensation
in the amount of
29. Reparation for harm suffered as a result of human rights violations is an obligation under
international law. This obligation, which is enshrined in the various international human rights
instruments, requires the State to prosecute the perpetrator of the violations and then any perpetrator
other than the State to make reparation for the harm suffered by the victim or his/her survivors. In other
words, by ratifying international instruments, States undertake the duty to create the conditions for the
enforcement of the right to reparation to victims.
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Commission while at the international level it is the Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law61 and General Comment No.3 of the Committee against
Torture that are in force.
These instruments establish the framework and principles for reparation to be granted to victims of
human rights violations. Reparation for a human rights violation thus includes the principles of
restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition= .
31.
In relation to the principle of compensation, the Commission's General Comment No.4 provides that
"compensation awarded to the victim should be fair, adequate and proportionate to the harm suffered, whether
material, non-material or otherwise". It follows from this principle that the effective enforcement of
compensation is one of the conditions for the realization of reparation and the promotion of justice. As
recognized by the African Court in Zongo v. Burkina Fas063 , damages are a means of compensating for
moral prejudice suffered such as "suffering, anguish, grief, sadness, distress, fear, frustration, anxiety,
inconvenience, humiliation and damage to reputation caused by the violation"64 .
32.
In the present case, the Commission notes that in recognition of and compensation for the damage
suffered, the Respondent State Court, in the OMT judgment of 17 November 2008, jointly ordered the
perpetrators (Sergeant Shombo Chance and the Respondent State) to pay compensation. The
Commission notes that the Respondent State Court fixed the victim's compensation at $10,000.
33.
Without pronouncing on the amount of compensation, which it leaves to the discretion of the national
courts according to positive law, following its practice, the Commission notes, nevertheless, that the
condemnation of the national courts to the payment of damages constitutes a predisposition of the
Respondent State and its institutions to compensate for the damage suffered.
34.
The Commission notes, however, that until its seizure in 2014, the perpetrators recognized to pay
compensation to the victim= were slow to fulfil their obligation.
35.
Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international
human rigMs law and serious violations of international humanitarian law I OHCHR
62 Urra Guridi v. Spain (CAT 212/02).
_
63 Zongo v. Burkina Faso, supra note I, at paras. 27, 55-56, 111(i)-(ii), COMPARATIVE STUD
"U'HE ~AW AND
PRACTICE OF REMEDIES FOR HUMAN RIGHTS VIOLATIONS.
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[GC, 2010, § 116, and Razzakov v. Russia, 2015, § 50.
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36. The Commission recalls that, as stated in the BasicPrinciples and Guidelines on the Right to a Remedy
and Reparation for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law, the right of victims includes "adequate, effective and
prompt reparation (...) for violations found".
37. Therefore, in the present Communication, the Commission recognizes the Complainant's right to
effective redress and more specifically her right to compensation in the amount of $10,000 decided by
the OMT judgment and considers that this claim is well-founded.
On the Enforcement of the OMT Judgment through the Restitution of the $120 decided by the
OMT judgment
38. The Commission recalls the content of the obligation to compensate for damages suffered and its
constituent principles listed above.
39. The Commission also recalls its General Comment No.4 which states that "Restitutionarv measures
should, taking into account the specificities of each case, seek to restore the situation that existed before the violation
was committed (...)".
The Commission notes from the submissions that the Complainant was the victim of theft of her
savings and those of her family in the amount of $120.The Commission also notes that the restitution of
the stolen savings was ordered by the judgment in question; and notes, however, that the stolen savings
were not actually returned until the submission of the present Communication to the Commission.
40.
Recalling the case of Mbiankeu v. Cameroon= in which the African Court noted that "loss of property
may be remedied by (...), including the return of the original property, the provision of property of a
similar nature, or compensation in the amount of the repurchase value of the property", the
Commission, supporting international jurisprudence, confirms the obligation of restitution on
recognized perpetrators of human rights violations.
41.
In light of the above, the Commission accepts the legitimacy of the prayer to return the savings of
$120 to the victim and her family and grants her prayer.
42.
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On the Payment of Interest on the above amounts at the rate of 6% from the date of the OMT
judgment
As previously recognized, the failure of the State Party to pay damages constitutes a violation of the
victim's right to property as recognized in Article 14 of the African Charter.
43.
In the present case, the Complainant claims interest at the rate of 6% on the unpaid amounts since the
date of the OMT judgment.
44.
As there is no applicable regulation on statutory interest rates for unenforced judgments, the
Commission refers to the regulation in force in the Respondent State.
45.
The Commission notes that Article 152 of the Code of Civil Procedure of the Democratic Republic of
Congo provides that "A proportional duty of 6% shall be payable on any sum or property value awarded by a
judgment that has become res judicata, by an arbitration award or by a foreign judgment that has become
enforceable" .
46.
In view of the domestic jurisdiction of the State Party on the one hand, and in view of the fact that the
conditions for the payment of legal interest in the case in question have been met, on the other, the
Commission recognizes the admissibility of the Complainant's prayer and accepts the need to pay the
victim interest on the above-mentioned amounts at the rate of 6% from the date of the OMT judgment.
On the Enforcement of the Sentence Imposed on Sergeant Chance by the OMT Judgment
47.
One of the objectives of the international protection of human rights is the recognition of the injustice
suffered by the victim as a resul t of the commission of the act condemned and the need to restore this
social justice by, among other things, punishing the perpetrator.
48.
Therefore, the effective execution of the sanction by the perpetrator is of indisputable importance and
represents a source of appeasement for the victim, who would see it as a consideration of her person
and her cause.
49.
Furthermore, by recognizing in General Comment No.4 (Paragraphs 27&28)the possibility for States
Parties to prosecute and extradite perpetrators of torture and the prohibition of amnesty for such
perpetrators, the Commission advocated the need to punish, according to the ru~~~\3P.At9~.ce,
the
recognized perpetrator of human rights violations.
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In the present case, the Complainant submits that although Sergeant Chance was convicted by the
OMT, she had not, up to the date of submission of her Complaint, received any assurance that the
convicted perpetrator would serve the sentence, i.e., life imprisonment and resignation from the army.
She indicates that this situation motivates her claim to the execution of the sentence pronounced against
Sergeant Chance by the OMT judgment.
51,
52. Considering on the one hand that international law recommends the prosecution of the perpetrator
of the human rights violation, recalling the Commission's General Comment No.4, which states that the
obligation of satisfaction includes "the right to the truth, (...) an official statement or court order restoring
the dignity, reputation and rights of the victim and those closely linked to him or her; judicial and
administrative sanctions against those responsible for the violations; a public apology, including
acknowledgement of the facts and acceptance of responsibility (...)", and recalling further that in the case
of S.L. v . Bulgaria, the Committee on the Elimination of Discrimination against Women observed that
failure to investigate, prosecute or punish perpetrators, coupled with failure to provide redress to
victims and survivors, constitutes a tacit authorization or encouragement to perpetrate gender-based
violence, as such failure is detrimental to society and, in particular, to women and children'", the
Commission recognizes that the prosecution of Sergeant Chance and the effective execution of his
sentence is one of the essential conditions for the reparation of the harm suffered.
53.
Accordingly, the Commission finds that the Complainant's request for the execution of the sentence
by Sergeant Chance is legitimate, which would also be a reaffirmation of the effectiveness of human
rights protection in the State Party.
On the Establishment of Legislative and Institutional Measures for the Enforcement of Judicial
Decisions and Guarantees of Non-Repetition of Violations
The guarantees of non-repetition established both by the BasicPrinciples and Guidelines on the Right
to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and
Serious Violations of International Humanitarian Law and by the Commission's General Comment No.
4 provide that "States Parties must take measures to combat impunity for violations committed. These measures
54.
include (I) establishing effective and clear instructions to public officials, including law enforcement officials, (...),
(VI) reviewing and revising laws, (...), promoting compliance with international standards and codes of conduct
by public officials, including law enforcement officials, (...). The above-mentioned General Comment states
that the objective of guarantees of non-repetition is to eliminate the structural causes of violence in
67
JURISPRUDENCE NOTE 2019, Overview of the juris
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In the present case, the Complainant requests the Respondent State, through the Commission, to put
in place guarantees of non-repetition of violations, including legislative and institutional measures to
enforce court decisions.
Recalling its Resolution ACHPR/Res.139(XXXXN)08 on the Human Rights Situation in the
Democratic Republic of Congo (DRC)68in which it condemned the actions of the State Party and called
on all stakeholders to adopt measures to put an end to the serious violations of human rights, the
Commission considers that the victim's request is legitimate and consistent with her right to reparation.
56.
Decision of the African Commission on Human and Peoples' Rights on Merits
57.
In view of the above, the African Commission on Human and Peoples' Rights:
a. Declares that the Democratic Republic of Congo has violated articles 1, 7 and 14 of the African
Charter and articles 4 (2)(f) and 8 of the Protocol to the African Charter on the Rights of Women in
Africa (Maputo Protocol) in the present case;
b. Declares that the Democratic Republic of the Congo has not violated article 25 of the Protocol to the
African Charter on the Rights of Women in Africa (Maputo Protocol);
c. Notes that the final decision handed down by the Congolese courts has recognized the violation of
article 5 of the African Charter, article 4 (1) of the Maputo Protocol, articles 2 and 18 (3)of the African
Charter, article 2 of the Maputo Protocol, article 11 of the Maputo Protocol and article 14 of the
African Charter;
d. Calls on the Respondent State to take the necessary measures for the effective execution of its OMT
judgment, namely:
1.
Life imprisonment and the resignation of Sergeant Shombo Chance from his duties in the army
and to inform the Complainant;
11.
Payment of the $120 savings;
iii.
Payment of damages of $10.000;
e. Requests the Respondent State to:
II.
Pay interest at the rate of 6% on the amounts ordered by the OMT judgment;
iii.
Put in place measures to guarantee the non-repetition of violations, starting with the
establishment of the legislative and institutional framework necessary for the romotion and
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protection of human rights and the execution of judicial decisions in the State Party, including
the establishment of a compensation fund;
Report in writing, within one hundred and eighty (180) days of the notification of this decision,
on the measures taken to implement these recommendations.
An Organ 01the
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31 Bijilo Annex Layout, Kombo North District,
West Coast Region Gambia.
Phone: (220) 230 4361 Fax; (220) 441 0504
Email:
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