COMMUNICATION 301/O5 – Haregewoin Gabre-Selassie and IHRDA (on
behalf of former Dergue Officials/Ethiopia)
Summary of the Facts:
1. The present Communication was received at the Secretariat of the
African Commission (the Secretariat) on 16 November 2004. It is
submitted pursuant to Article 55 of the African Charter on Human and
Peoples‟ Rights (the African Charter or Charter). The Secretariat later
received a letter from the Institute for Human Rights and Development
in Africa (hereafter the IHRDA) dated 29th March 2006, whereby the
IHRDA sought to join as co-author of the Communication.
2. The Complaint is thus submitted by Haregewoin Gabre-Selassie and
IHRDA (the Complainants) on behalf of “the Dergue officials” (former
officials of the Mengistu regime in Ethiopia) who have been detained
by the Government of the Federal Democratic Republic of Ethiopia
(Respondent State) since 1991.
3. The Complainants alleged that following the overthrow of the former
Mengistu regime in Ethiopia (commonly referred to as the Dergue1
regime) by the Ethiopian People‟s Revolutionary Democratic Front
(EPRDF), in 1991, the Dergue officials surrendered to the new
government and they were arrested and detained on account of
collective responsibility for policies or abuses by the Dergue regime
rather than on an account of individual responsibility for particular
criminal offences. The Complainants submit that they have been in
detention since then.
4. The Complainants also claim that a year after their detention a new
legislation was enacted whereby the Special Public Prosecutor‟s Office
(SPO) was established and mandated to conduct “investigation and
bring to trial [Dergue officials] detainees, as well as those persons who
are responsible for having committed offences and are at large, both
within and [outside] the country”.
5. They submit that upon coming into force, the SPO Proclamation barred
and suspended the applicability of provisions concerning time
limitation of criminal action to proceedings instituted by the SPO
office; thereby giving the SPO the liberty to submit charges, evidence
1
Dergue means “Council or Committee” in Amharic and it is usually associated with the
Mengistu regime that toppled Haile-Sellasie‟ Monarchic regime in 1974, and ruled the country
from 1974-1991.
1
and other matters pertaining thereto whenever it pleased, without any
concerns about the statute of limitation running against its actions, and
foreclosing their right to fair trial. Such offences may not be commuted by
amnesty or pardon…”
6. They aver that the SPO Proclamation also ousted the applicability of
the provisions of habeas corpus under the Civil Procedure Code to
persons detained prior to the coming into force of the Proclamation in
matters under the jurisdiction of the Special Prosecutor, thereby
wiping out the possibility of challenging the excessively prolonged
detention without trial of the detainees. According to the
Complainants this ouster is discriminatory as it applies to the targeted
groups only, and was applied retroactively, as it narrowed down the
rights of the detainees to judicially challenge their prolonged detention.
7. The Complainants further submit that although the law demands a
speedy trial, the victims stayed in detention without access to legal
counsel from 1991-1994, and that the SPO trial finally commenced only
in October 1994. The Dergue officials discovered during the trial that
they have been charged with the crime of Genocide and Crime Against
Humanity under Article 281 of the Ethiopia Penal Code of 1957. The
allegations included the killing and torture of secessionists, political
activists and farm owners.
8. The Complainants submit that after fifteen (15) years of detention of
the alleged victims and twelve (12) years of the commencement of the
trial, the proceeding are yet to be concluded.
9. They aver further that the Dergue officials were collectively charged
solely on basis of being members of the Council of the defunct
Provisional Military Administration, and accordingly, they have been
defending their cases collectively; which procedure has made it
difficult to individualise guilt, or to prove/rebut individual innocence
and guilt, and according to the Complainants will lead to collective
guilt and collective punishment.
10. This situation is alleged to have also manifestly contributed to the
delay of the proceedings. In order to expedite the trial therefore, it is
submitted that the Dergue officials have pleaded with the Court for
individual trials, and that their request was overruled. It is also noted
that an appeal on this issue, being an “interlocutory matter” is
permissible only if or when the party lodges an appeal on the
conviction or sentencing of the final verdict, and that since the final
judgment is yet to be handed down, the detainees do not have a right
of appeal on this issue at this stage of the proceedings.
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11. The Complainants claim that although all the Dergue officials were
collectively charged with the crime of Genocide, they raised an
objection through their defence lawyers that the charge filed by the
Prosecution did not clearly stipulate which cases fall under Genocide
and which ones fall under crime against humanity, however, the court
proceeded without making a ruling on the issue. They submit that to
their dismay, they later learnt that most of those indicted had all been
convicted and sentenced to rigorous prison terms, including capital
punishment for the crime of Genocide. Those sentenced to death are
waiting for the decision of the Head of State whether they would be
pardoned or executed.
12. They allege that Genocide has an international definition, and by
adding illegal and clandestine political parties and organizations to the
list of protected entities under the Genocide Convention, the Ethiopian
courts have created a new crime of genocide by analogy. The
Complainants submit that the Ethiopian courts by creating crimes by
analogy have not only deviated from the international Genocide
Convention to which Ethiopia is a party, but also Article 9 of the
Constitution of Ethiopia, which stipulates that all the laws of the land
must be interpreted in conformity with international conventions,
treaties and agreements.
13. They averred that when trial commenced, they had requested for an
impartial and international tribunal to be set up to investigate the
allegations but the Respondent State refused. The judges were mostly
fresh University graduates, civil servants and ex-combatants from the
new regime. Regarding the right to be represented by legal counsel,
Complainants submit that the Court ordered legal practitioners to
represent them in the subsequent trials, and that they did not have the
chance to make a choice of counsel, but had to contend with the legal
counsels assigned them by the State.
14. It is also alleged that the lawyers assigned to the detainees did not have
the right to decline the order of the State to take up the cases, even if
they indicated that they were not interested and/or that they did not
have the expertise in defending cases dealing with the crimes of
genocide and crimes against humanity. The lawyers were allegedly
underpaid for the work, with no incentives and many of them are said
to have given up going to Court to defend the detainees, consequently
leaving many of the detainees virtually without legal counsel.
15. They submit that the detainees fall under the following categories:
Those that have been sentenced from, rigorous imprisonment
up to death;
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Those that have presented their defence and are awaiting
judgment at the Federal High Court;
Those that are in the process of presenting their defence.; and
Those that have appealed to the Supreme Court after having
been sentenced by the Federal High Court.
16. The Complainants submit that the detainees have been frustrated by
the long adjournments, shortages and frequent change of judges and
absenteeism. This has been exacerbated by the movement of judges on
circuit basis to different regions of the capital.
17. The Complainants informed the African Commission on Human and
Peoples‟ Rights (the African Commission or the Commission), that out
of the 109 Dergue officials, only 76 survived to be charged including
those in the Diaspora; only 46 appeared in court; while 9 have died
during the proceedings in prison; and that to date, only 37 have
remained to defend their case collectively. However, the African
Commission was later informed by the IHRDA that not less than ten
(10) of the detainees have died in detention before they were able to
know their conviction or acquittal, and that some of the deaths
occurred after the submission of the present Communication; with the
last one in March/April 2006.
18. The Complainants claim that the Government is using this case as a
means of precluding certain groups or a sector of a population from
participating in political activities. They submit that while the
Government is using the judiciary to create an image and sense of
justice to the international community and advocates of human rights,
the truth is that the charges, convictions and sentences are all
politically motivated, the end result of which is a “Victor‟s Justice”.
19. The Complainants submitted that the delay and procedural
irregularities in the case have been unprecedented in judicial history
and reminded the African Commission that “Justice threatened
anywhere is justice threatened everywhere”.
Articles alleged to have been violated
20. The Complainants allege violation of Articles 1, 2, 3, 5, 6, 7 (1) (a), (b),
(c), (d), 7(2), 25 and 26 of the African Charter by the Respondent State.
Prayers
21. The Complainants request the African Commission to:
Declare specifically that the Proclamation setting up the Special
Prosecutor Office and the conduct of officials of the Federal
Government of Ethiopia during the trial of the Dergue Officials
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constitute a violation of the right to be presumed innocent
guaranteed in Article 7 (1) (b) of the Charter;
Declare specifically that by failing to try the victims within a
reasonable time after their detention and subjecting them to a
trial that lasted for more than 12 years, Ethiopia has violated
their right to a speedy trial guaranteed in Article 7 (1) (d) of the
Charter;
Declare that by failing to recognize the victims‟ right to a fair
trial as enshrined in the African Charter, the Federal
Government of Ethiopia has violated Articles 1 and 2 of the
Charter;
Award compensation to those who remained in detention
pending the completion of their trial and were eventually found
innocent, and recommend that the period of detention be
counted into the time of imprisonment of the victims;
Strongly recommend the Ethiopian Courts not to pass death
sentences against any of the victims of the trials considering the
fact that several rights of the victims have been violated in the
process of the trials;
Strongly recommend that the Ethiopian Courts, which may be
approached by way of appeal, to commute the capital sentences
passed against the victims to terms of imprisonment. In the
alternative or as complementary, should recommend to the
authorities (the Head of State and the Prime Minister) in
accordance to the powers conferred upon them by Ethiopian
laws to reduce capital punishments to imprisonment terms;
Strongly recommend the Federal Government of Ethiopia that
legislative and other measures should be taken to ensure that all
citizens of Ethiopia enjoy the right to a fair trial guaranteed in
the African Charter.
Procedure
22. The Complaint was received at the Secretariat on 16 November 2004.
23. On 14 January 2005, the Secretariat wrote to the Complainants through
the office of the Commissioner for Political Affairs asking them
whether the complaint should be considered as a Communication
before the Commission.
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24. On 14 April 2005, the Secretariat received a letter from the
Complainants confirming that the complaint should be treated as a
Communication.
25. At its 37th Ordinary Session held in Banjul, The Gambia, the African
Commission considered the Communication and decided to be seized
thereof.
26. By Note Verbale of 24 May 2005, the Respondent State was notified of
the African Commission‟s decision and requested to submit its
arguments on admissibility within three months of the notification. By
letter of the same date, the Complainant was notified of the African
Commission‟s decision.
27. On 23 August 2005, the Secretariat received the arguments of the
Respondent State on the admissibility of the Communication.
28. On 25 August 2005, the Secretariat received the Complainant‟s
arguments on admissibility.
29. By Note Verbale of 25 August 2005, the Secretariat acknowledged
receipt of the Respondent State‟s submissions and transmitted the
Complainant‟s submission to the State. By letter of the same date, the
Secretariat informed the Complainant of the Respondent State‟s
submissions.
30. On 23 September 2005, the Secretariat received additional submission
on admissibility from the Respondent State.
31. At its 38th Ordinary Session held in Banjul, The Gambia, the African
Commission deferred consideration of the Communication to allow the
Complainant to submit further arguments on admissibility.
32. By Note Verbale dated 15 December 2005 and letter of the same date,
the Secretariat of the African Commission notified both parties of the
African Commission‟s decision and the Complainant was requested to
submit arguments within thirty days.
33. On 6 March 2006, the Secretariat sent by DHL, all the submissions of
the State on the admissibility of the Communication to the
Complainant and requested the latter to send submissions within 30
days.
34. On 29 March 2006, the Secretariat of the African Commission received
a letter from the IHRDA indicating its intention to assist the
6
Complainant in dealing with the case and its intention to become a coauthor to the Communication.
35. On 29 March 2006, the Secretariat of the African Commission
acknowledged receipt of the IHRDA‟s letter.
36. At its 39th Ordinary Session held in Banjul, The Gambia, from 11 – 25
May 2006, the African Commission deferred further consideration on
the admissibility of the Communication in order to make a preliminary
determination of the status of the co-author.
37. By a Note Verbale dated 29 May 2006 and by a letter of the same date,
both parties were notified of the African Commission‟s decision, and
the IHRDA was requested to explain how it intends to become a coauthor to the Communication.
38. On 7 August 2006, the Secretariat received a brief from the IHRDA
explaining its status as co-author of the Communication.
39. By letter dated 15 August 2006, the Secretariat acknowledged receipt of
the IHRDA‟s letter and submissions, and by a Note Verbale of the same
date, transmitted both documents to the Respondent State.
40. By Note Verbale dated 10 October 2006, the Secretariat reminded the
Respondent State to submit its comments on the submissions made by
the IHRDA before 31 October 2006.
41. At its 40th Ordinary Session held from 15 to 29 November 2006, the
African Commission considered the Communication in light of
submission of the IHRDA, and decided to defer further consideration
of the Communication to its 41st Ordinary Session in order to allow the
Respondent State reply to the IHRDA‟s submissions on admissibility,
in line with Rule 117 (2) of the Commission‟s Rules of Procedure.
42. By letter and a Note Verbale dated 9 and 15 February 2007, the parties
were respectively informed about the African Commission‟s decision.
The African Commission further reminded the Respondent State to
submit its comments of the submissions made by the IHRDA before
15th March 2007.
43. By Note Verbale dated 24 April 2007, the African Commission
reminded the Respondent State to respond to the IHRDA‟s
submissions on admissibility; and requested the State to make the said
submissions by 10 May 2007.
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44. At its 41st Ordinary Session held from 16 to 30 May 2007, in Accra
Ghana, the African Commission, in the absence of any response from
the Respondent State, acted on the evidence before it in line with Rule
117 (4). It therefore made a preliminary determination on the IHRDA‟s
status as a co-author to the Communication and declared the
Communication admissible.
45. By Note Verbale of 25 June 2007 and by letter of the same date, both
parties were notified of the African Commission‟s decision, and
requested to make submissions on the merits.
46. By letter dated 31 July 2007, the Complainant requested the African
Commission to postpone consideration on the merits of the
Communication to its 43rd Ordinary Session to give it adequate time to
prepare its arguments.
47. By Note Verbale of 24 September 2007, the Respondent State submitted
its arguments on the merits.
48. At its 42nd Ordinary Session, the African Commission considered the
Communication and deferred its decision to the 43rd Ordinary Session
to allow the complainant to make its submissions on the merits.
49. By Note Verbale of 19 December 2007 and by letter of the same date,
both parties to the Communication were notified of the African
Commission‟s decision.
50. On 18th April 2008, the Secretariat received the Complainant‟s
submissions on the merits of the Communication.
51. By Note Verbale of 24 April 2008, the Secretariat forwarded the
Complainant‟s submissions to the Respondent State.
SUBMISSIONS ON LOCUS STANDI AND JOINDER OF PARTIES
Submissions from the IHRDA
52. The IHRDA submits that it is a pan-African organisation with an
interest in the protection and promotion of human rights in Africa, and
with a specialization in litigation before the African Commission.
53. The IHRDA informs the African Commission that it has information
about blatant violations of Charter-guaranteed human rights in the
Respondent State, being the detention of over 106 former Dergue
officials, and that it had been interested in bringing these to the
8
attention of the Commission. However, having discovered that there is
a pending Communication before the Commission – i.e., based on the
same facts and alleged violations, it decided to apply to the African
Commission to be joined as a co-author of this Communication, rather
than bring a fresh Communication. The IHRDA notes that the original
author of the Communication has abandoned it and will not appear
before the Commission anymore due to clear and present threat against her
life, and as a consequence has refused to speak with the Institute or
anyone.
54. The interest of the IHRDA in this matter, especially now that original
author has abandoned the matter is stated to be related to its principal
objective, which is “providing necessary assistance and expertise…” and
supported by the principle of actio popularis.
Response from the Respondent State
55. The Respondent State argues in their oral submissions that the IHRDA
is not registered in Ethiopia and has no relationship with the victims,
and therefore does not have a “legal interest” in the Communication.
The IHRDA’s Response to the Submissions of the Respondent State
56. The IHRDA argues that there is no requirement of “citizenship” or
“legal interest” in the provisions of Article 56(1) of the Charter which
refers to the authorship of Communications (under the admissibility
requirements) before the Commission. More so, it argues, neither the
Charter‟s provisions nor the practice of the Commission imposes any
limitation on the locus standi of authors of Communications.
57. According to the IHRDA, Article 56 of the Charter provides for seven
admissibility requirements, and that the list therein is exhaustive,
adding that “Legal Interest” and “Citizenship” requirements as argued
by the Respondent State do not feature under the admissibility
requirements under Article 56, and are therefore at odds with the
Charter. It further argues that introducing these additional
requirements to the admissibility requirements under the Charter
would be tantamount to reviewing the Charter, which the Respondent
State lacks the power to do. It notes that respect for the existing text is
the practice of international mechanisms in general and of the African
Commission, in particular. The IHRDA notes further that introducing
additional requirements to the admissibility requirements under the
Charter would render the Commission inaccessible, thereby defeating
the intention of the drafters of the Charter, which encourages, rather
than stifles, the submission of human rights violations to the
Commission.
9
58. Thus, the IHRDA contends that it is not required to prove legal
interest, but that it suffices to show that it is interested in the protection
and promotion of human rights through the African regional
mechanism. Similarly, it notes that the “citizenship” of the IHRDA,
which is not registered in Ethiopia, is irrelevant to the admissibility of
the Communication; and argues that such a restrictive approach would
complicate matters where, for one reason or another, the “domestic
actors” are unable to lodge complaint themselves before the
Commission. It argues that such an approach would insulate the
violating states against international scrutiny and foster the culture of
impunity, which is at odds with the purpose of the Charter to promote
and protect the rights and freedoms of Africans.
59. It further contends that its line of argument is in consonance with the
practice of other regional and UN mechanisms, whereby complaints
may be lodged on behalf of alleged victims of human rights violations.
60. The IHRDA further contends that with respect to Article 56(1) of the
Charter, the provision merely requires that a Communication should
“indicate their authors”, and that is designed „to enable the
Commission‟s Secretary to remain in contact with the author, to keep
him or her informed about the status of the Communication, and to
request further information if it is required. The IHRDA disagrees
with the Respondent State‟s argument that there is no author to the
present Communication, and submits that this is a misconception of
the “victim-author” difference.
The African Commission’s Decision on Locus standi and Joinder of
Parties
Locus standi
61. The African Commission notes that neither the African Charter nor the
Rules of Procedure of the Commission makes provisions on the locus
standi of parties before it. The Commission has however, through its
practice and jurisprudence adopted the actio popularis principle
allowing everyone the legal interest and capacity to file a
Communication, for its consideration. For this purpose, non-victim
individuals, groups and NGOs constantly submit Communications to
the Commission. Thus, the Commission upholds the argument of the
IHRDA on their capacity to approach the Commission in its capacity as
an organisation with an interest in the protection and promotion of human
rights in Africa under the actio popularis principle.
62. With respect to the argument of the Respondent State that there is no
legal interest for the Institute to deal with the case, the Commission has
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made it clear, inter alia, in WOAT/OMCTs vs. Zaire2 that the author of a
Communication need not be the victim nor related to the victim(s) of
the human rights violations alleged. This position is put succinctly in
the Commission‟s decision in
Malawi African Association and Others
v Mauritania3, where it held that “Article 56(1) of the Charter demands
that any persons submitting communications to the Commission
relating to human and peoples‟ rights must reveal their identity. They
do not necessarily have to be the victims of such violations or members
of their families. This characteristic of the African Charter reflects
sensitivity to the practical difficulties that individuals can face in
countries where human rights are violated. The national or
international channels of remedy may not be accessible to the
victims.”4
63. As a result of the foregoing, the Commission is disagrees with the
Respondent State‟s argument that the Institute lacks legal interest in
the matter.
64. With respect to the argument of the Respondent State that the Institute
is not a citizen of or an organization registered in Ethiopia, the
Commission made it clear in Spilg and Mack & DITSHWANELO (on
behalf of Lehlohonolo Bernard Kobedi)/ Botswana5 that the person or NGO
filing the Communication need not be a national or be registered in the
territory of the Respondent State. There is no requirement of
“citizenship” for the authorship of a Communication. 6 Any interested
individual or organisation can bring a Communication on behalf of a
victim and such individual or organisation need not be a citizen or be
registered within a States party to the African Charter.
65. Thus, the fact that the Institute is not registered in Ethiopia is
immaterial. As long as it satisfies the conditions set out in Article 56 of
the African Charter, the African Commission will entertain the
Communication as it has done, in several other cases where
2
Communications No. 25/89, 47/90, 56/91, 100/93.
Communications: 54/91, 61/91, 164/97 to 196/97, 210/98.
4
Ibid, (Comm: 210/98) para 78.
3
5
Communication 277/2003. See also Communications 54/91, 61/91, 98/93, 164/97 to 196/97,
210/98 – Malawi African Association, Amnesty International, Ms Sarr Diop, Union
Interafricaine des Droits de l‟Homme and RADDHO, Collectif des Veuves et Ayants-droit,
Association Mauritanienne des Droits de l‟Homme/Mauritania. See e.g., cases submitted by
Amnesty International, Interights, and also Communication 31/89, Maria Baes/Zaire,
instituted by a Danish national and Communication 235/2000 – Curtis Doebbler/ Sudan
instituted by an American citizen.
6
See generally, “Capacity to Bring a Communication before the African Commission on Human
and Peoples‟ Rights (Locus Standi)”, Working Document of the African Commission, 40 th
Session, 15th-29th November 2006, Banjul, The Gambia.
11
Communications have been instituted by non-nationals of the State
against which the Communication is instituted.
66. Accordingly, the African Commission holds that the Institute can
appear before it in respect of the present Communication under its
much espoused actio popularis principle.
Joinder of Parties
67. Joinder of parties is a legal term which refers to the act if uniting as
parties to an action all persons who have the same rights or against
whom rights are claimed, as either co-plaintiffs or co-defendants.7
Joinder of parties therefore allows multiple plaintiffs or defendants to
join in an action if each of their claims arises from the same transaction
or occurrence, or are of a similar nature or if there is a common
question of law or fact relating all their claims.
68. Notably, neither the African Charter nor the Rules of Procedure of the
Commission makes provisions on the joinder of parties before the
Commission. The closest to this is Rule 114(2) which provides that the
Commission, may, if it deems it good, jointly consider two or more
Communications. Consequently, it is the prerogative of the
Commission, from the facts presented, to join Communications, and
the same would apply to the joinder of parties.
69. The IHRDA has applied to join the present Communication as coauthors, and indeed, as shown above, there is no jurisprudential or
legal bar that precludes them from joining as co-authors. Indeed, if the
African Commission were to deny the Complainant access to its
Communications procedure, there is the possibility of the alleged
victims, on whose behalf this Communication has been brought to
continue to suffer the alleged violations of their fundamental rights;
especially as the first Complainant has refused to proceed with the
Communication, even though he has not formally communicated this
decision to the Commission. Such denial of access to the Institute
would indeed be contrary to the spirit of the Charter which mandates
the African Commission to “ensure the protection of human and
peoples‟ rights in Africa.
70. More specifically, in respect of the Respondent State‟s argument that
there is no author to the present Communication, the Commission
notes that even if the original Complainant has formally withdrawn
from the present Communication, as the ultimate protector of human
rights on the African continent, the Commission may still proceed to
7
See generally, Black‟s Law Dictionary, 6th Ed. p. 836-837.
12
examine the Communication if it deems it appropriate. The
Commission hereby alludes to the practice of other similar bodies such
as the Inter-American Commission on Human Rights.8 In this respect,
the Commission notes that while there is no provision to this effect in
its current rules of procedure, there is also nothing therein precluding
it from adopting this progressive approach to the protection of human
rights.
71. Accordingly, the African Commission hereby joins the IHRDA as coauthor to the present Communication, in line with its widely espoused
actio popularis principle, as an organisation with an interest in the
protection and promotion of human rights in Africa under the actio popularis
principle. The Communication will henceforth be cited as Haregewoin
Gebresellaise and Institute for Human Rights & Development in Africa/
Federal Democratic Republic of Ethiopia.
The Law on Admissibility
Respondent State’s Submissions on Admissibility
72. The Respondent State‟s submissions on admissibility are divided into
two parts. In Part One, the Respondent State provides a background of
the conflict in Ethiopia that led to the overthrow of the Dergue Regime
in 1991. The State notes the alleged gross human rights violations that
were perpetrated by the said regime and notes further that domestic
mechanisms were put in place to prosecute perpetrators of gross
human rights violations. These mechanisms, according to the
Respondent State, includes the Special Prosecutor Office set up in 1992
to, among other things, establish a historical record of human rights
violations under the Mengistu regime; and to bring officials, members
and auxiliaries of the armed and security forces of the Dergue regime
who participated in the commission of serious human rights violations
to justice.
73. The Respondent State also notes that it has an independent judiciary
dealing with the cases of the officials and insists that most of the cases
have been disposed of and some people have been tried, some set free,
others have been convicted while some are still being tried.
74. In Part Two of its submission, the Respondent State addresses itself to
the question of Admissibility and argues that the Communication
should be declared Inadmissible for the following reasons: that the
Complainant failed to comply with the burden and standard of proof;
8
Article 35 of the Rules of Procedure of the Inter-American Commission on Human Rights;
http://www.cidh.org/Basicos/basic16.htm (accessed on 25/10/06).
13
that the case is pending before the courts of the Respondent State, that
remedies are available, effective and sufficient to address the matters
raised in the Communication. The Respondent State also insists that
the Special Prosecutor Office has sufficient and independent
mechanism to address the grievances and that the remedies sought are
beyond the mandate of the African Commission. The State submits
further that the Communication does not make reference to the African
Charter and fails to indicate the provisions of the Charter alleged to
have been violated, adding that the case has already been settled by
another international organ.
75. According to the State, the Complainant is required to provide a prima
facie evidence of an attempt to exhaust local remedies, noting that in
the present case, there are effective, and sufficient local remedies which
the Complainant‟s have not exhausted. The State pointed out that the
Complainants could have addressed their grievances to the High Court
or the Judicial Administration Officer or the Human Rights
Commission.
76. The State further avers that the right to a speedy trial alleged to have
been violated is embodied in Ethiopian laws, including in the
Constitution, and is a fundamental right recognized by international
human rights treaties Ethiopia has ratified, which by virtue of Article 9
(4) is an integral part of the laws of Ethiopia. Thus, according to the
State, the courts are bound to ensure the realization of this right.
77. The State acknowledges that in terms of Article 19 of its Constitution
“…where the interest of justice so requires, the court may order the
arrested person to remain in custody, or when requested, remand him
for a time strictly required to carry out the investigation. In
determining the additional time necessary for investigation, the court
shall ensure that the responsible law enforcement authorities carry out
the investigations respecting the arrested person‟s right to a speedy
trial”.
78. According to the State, these are legal safeguards that cancel the risk of
breach of the right of the accused to speedy trial. The State points out
that if the Prosecution‟s office or any other organ was therefore
engaged in an act that violates the victims‟ right to a speedy trial, they
could and should have called the attention of the court to the violation.
According to the State, there was no indication that the Complainants
resorted to this.
79. Regarding the Judicial Administration Council established by
Proclamation No. 24/1996, the State indicates that one of its powers is
to discipline judges who act in breach of disciplinary rules and if the
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judge turned a deaf ear to the pleas of the Complainants, they could
and should have brought their complaints before the Judicial
Administration Council, a recourse which the State claims was not
sought by the Complainants.
80. The State argues further that the Complainants did not bring their
grievances to the attention of the Judicial Administration Offices and
the Human Rights Commission. According to the State, the
Complainants have not shown that the judicial process was unduly
prolonged and do not show why they did not attempt to exhaust all
these remedies available to them.
81. The State also notes that for local remedies to be exhausted, the
Complaint must have been dealt with by the highest court of the land,
but in the instant case, there is no evidence to show that the
Complainants have submitted a case with the Federal Supreme Court
of Ethiopia. The State however notes that many of the suspects have
just recently brought their cases to the Supreme Court after being
convicted by lower courts and these cases are still awaiting judgment.
The State notes further that with respect to senior government officials
of the Dergue regime, their cases were still being heard in the Federal
High Court Criminal Branch and they still have an opportunity to
appeal to higher courts, if convicted.
82. Regarding the allegation of the Complainants that the process is
unduly long, the State notes that measures have been taken to reduce
the time that will be taken to effectively try the victims to meet
international fair trial standards. It states that it is intended that all the
trials will be completed by the beginning of 2006. The state notes
further that the delay has been caused by both the defence and the
prosecution due to the many witnesses they had.
83. The State claims the remedy sought by the Complainants is beyond the
competence of the Commission, claiming that the latter is being
requested to not only review the ongoing trial process in Ethiopia but
also to instruct Ethiopia on what form of domestic mechanism it
should adopt in prosecuting and trying of persons accused of gross
human rights violations. In particular, the State argues that the
complainants are asking the Commission to order Ethiopia to agree to
the setting up of an international tribunal similar to the International
Criminal Tribunal for Rwanda or the International Criminal Tribunal
for the Former Yugoslavia. The State notes that different countries have
adopted different approaches in bringing human rights perpetrators to
book, such as the establishment of the truth and reconciliation
commission, international tribunals, etc, but in Ethiopia, the
government has established the Special Prosecutions Offices, making a
15
clear choice to prosecute former Dergue officials who committed
serious offences and this decision has been widely supported by the
international community.
84. The State avers that the Complainants claim the right to pardon and
amnesty under international law have been infringed. According to the
State, there are no such rights under international law, adding that, the
Ethiopian constitution precludes any blanket amnesty.
85. According to the State, the Complainants‟ requests are not directly
related to any human right guaranteed in the African Charter and thus
the Communication is not compatible with the provisions of the
Charter.
86. The State went on to state that the Communication does not refer to the
Charter and fails to indicate the provisions of the Charter that have
been violated, noting that the African Commission has indicated that
Communications must illustrate a prima facie violation of the Charter
by invoking specific provisions of the Charter alleged to have been
violated. It also notes that the African Commission has rejected
Communications which failed to make reference to the provisions of
the Charter, that even though they cited provisions under UN texts,
made only general allegations of human rights violations without
making any specific breaches of the Charter.
87. The State also argues that the Communication has been settled by
another international organ. The State indicates that in its report
E/CN.4/1994/27, Decision Nos 45/1992 and 33/1993, the UN
Working Group on Arbitrary Detention issued decisions regarding the
detention and prosecution process involving the victims. The State
argues that following this decision, the government took the necessary
measures in order to comply. The State argues that the Communication
should therefore be declared inadmissible as it has been settled by the
Working Group on Arbitrary Detention.
88. The state also argues that the Communication does not conform with
the procedures in the African Charter and the Commission‟s rules of
procedures. The State notes that the present Communication does not
meet the requirements of a Communication, as it is simply a letter of
appeal sent to the Special Rapporteur on Prisons and Conditions of
Detention in Africa. The State argues that the Special Rapporteur was
engaging the Commission on issues which “it is already addressing
and is adequately seized of through its promotional mandate”. The
State concludes that the present Communication was not addressed to
the Secretariat as a Communication but rather as a feed back from
alleged victims of human rights to the Special Rapporteur during her
16
visit to Ethiopia. The Respondent State therefore requests the
Commission to also reject the Communication on this ground.
Complainants’ submissions on Admissibility
89. The Complainants note that Article 56 of the Charter provides for
seven admissibility requirements, and that the list therein is
exhaustive. They submit that the present Communication fulfils all the
requirements stipulated in Article 56 of the Charter and should
therefore be declared admissible by the African Commission.
90. With respect to Article 56(1) the Complainants submit that the authors
of the Communication are clearly identified as Heregewoin GabreSellasie and the Institute for Human Rights and Development in Africa
(on behalf of the over 106 Officials of the Dergue Regime). They
thereby deny the Respondent State‟s argument that the
Communication has no author.
91. In respect of Article 56(2) which requires that Communications must be
compatible with the African Charter or the OAU Charter, the
Complainants note that neither the Charter nor the Commission‟s
Guidelines on the Submission of Communications requires the
Complainants to cite the precise violations of the Charter alleged, and
that in fact, the Guidelines clearly provide that “…the Complainant
need not mention the specific articles of the Charter alleged to have
been violated”. They also reject the argument of the Respondent State
in this regard.
92. The Complainants argue that their subsequent submission on
admissibility actually specified the articles of the Charter allegedly
violated by the Respondent State.
93. In respect of Article 56(3) which requires that Communications should
not be written in insulting or disparaging language directed at the
State, its institutions, or the African Union; the Complainants submit
that the present Communication is based entirely on the factual
situation giving rise to the complaint, and is written in a manner that is
both polite and respectful.
94. In respect of Article 56(4) which provides that the Communication
must not be based exclusively on news disseminated through the mass
media, the Complainants submit that the present Communication is
17
based on information verified by first-hand accounts of the events,
supported by means of affidavits.9
95. In respect of Article 56(5) which requires that Complainants exhaust all
local remedies before approaching the Commission, the Complainants
submit that the State has been given sufficient notice of the continuing
violations and has had ample opportunity to remedy the situation.
They argue that “the laws, procedures and practices have conspired to
make it impossible for the Dergue Officials to seek any viable local
remedies and/or made the remedies ineffective at best”.
96. The Complainants rebut the argument of the Respondent State on their
access to the High Court or the Judicial Administration Commission
(JAC) or the Human Rights Commission. In respect of the High Court,
they note that the SPO Proclamation forecloses the detainees‟ rights to
habeas corpus or a speedy trial, and that their request for individual
charge cannot be appealed against until the final verdict is given.10
97. In respect of the accessing the Human Rights Commission, they argue
that apart from the fact that the Human Rights Commission was
established nine years after the effective detention of the victims; the
former is expressly precluded by its establishing law from interfering
in cases before the courts at any level. Article 7 of the Ethiopian
Human Rights Commission Establishment Proclamation No. 210/2000
provides that “The [Human Rights] Commission shall have full powers
to receive and investigate all complaints on human rights violations
made against any person, save cases brought before … the courts of
law, at any level”.
98. In respect of the JAC, the Complainants submit that the body has
always been fully aware of the trials of the Dergue Officials, and has
chosen to remain a “disinterested spectator”.
99. They conclude that there is no remedy left for the Dergue Officials to
exhaust as they have exhausted all available local remedies.
Alternatively, they submit that should there be any reason to believe
otherwise,11 the Commission should allow them to be exempted from
9
The Institute noted that these affidavits could not be submitted at this stage of the proceedings,
until such time that it can bring the Commission‟s attention to the threat against the security of
the individuals who have earnestly requested to remain anonymous for fear of possible
government harassment. They however noted that the affidavits would be submitted at a later
stage if the Commission devises a mechanism of keeping the names of the individuals
confidential.
10
Para 14 of Complainants‟ submission on Admissibility.
11
Here, the Complainants note that where a State argues that a Communication before the African
Commission must be declared inadmissible because local remedies have not been exhausted,
then it has he burden of demonstrating the existence of such remedies. They thereby cited
Communication 71/92, Recontre Africaine pour la Defence des Droits de l’Homme vs. Zambia.
18
exhausting them as these remedies would be ineffective and/or their
exhaustion would be „undesirable‟. This, according to the
Complainants, is because the process of exhaustion of local remedies
has been unduly prolonged, and the reasons for the delays are all
attributable to the Respondent State.12 They therefore urge the
Commission to follow its jurisprudence in Institute for Human and
Development in Africa (on behalf of Collectif des Veuves et Ayants
droits)/Mauritania13 where it held that the duty on the Complainant to
pursue legal avenues at the national level may be waived if it is
„impractical‟14 or „undesirable‟ for the Complainant to do so15.
100. In respect of Article 56(7) which requires that Communications
must not deal with cases which have been settled in accordance with
the Charter of the United Nations (UN), or the Charter of the OAU
(now AU) or the provisions of the African Charter; the Complainants
note the argument of the Respondent that the present Communication
has been settled by another international organ, namely the UN
Working Group on Arbitrary Detention (UNWGAD), by its Decisions
Nos. 45/1992 and 33/1993.16 The Complainants however argue that
there is no overlap between the complaint submitted to the UNWGAD
and the present Communication. They argue that the substance of the
present Communication varies with the one dealt with by the
UNWGAD, as do the victims, the facts making up the present
Communication and the period over which the alleged violations have
been committed.
101. They note specifically that the complaint to the UNWGAD was
submitted and decided before the commencement of the trial of the
Dergue Officials, and therefore did not cover the subsequent period of
trial which the present Communication is dealing with. They also note
that the complaint to the UNWGAD was concerned solely with five
members of the Dergue, and therefore does not cover the over 106
Dergue Officials in respect of whom the present Communication has
been submitted before the Commission. Hence, they submit that the
present Communication does not deal with any settled matter. They
further argue that for the matter to have been settled there should have
been a decision on the merits complained of herein, which is not the
case. In support of this argument, they cite the Commission‟s decision
12
The reasons for this submission are detailed in para 32 of Complainants‟ submission on
Admissibility.
13
Communications 164/97 and 196/97.
14
They cite Communication 215/91 – Malawi African Association and Others/ Mauritania;
Communication 61/91 – Amnesty International/Mauritania, 98/93 – Mme Sarr Diop, Union
Interafricaine des Droit de l’Homme et RADDHO/Mauritania.
15
Ibid.
16
Para 71 above and paras 33 – 42 of the State and Complainants‟ submission on admissibility.
19
in Bob Njoku vs. Egypt,17 where the Commission “had rightfully rejected
the argument of the Respondent States on similar grounds and
declared the Communication Admissible”.18
102. The Complainants conclude that the seven admissibility
requirements have been effectively complied with in the present
Communication and respectfully requested the African Commission to
declare the Communication admissible.
The African Commission’s analysis on Admissibility
103. The admissibility of Communications submitted before the African
Commission pursuant to Article 55 of the African Charter is governed
by the seven conditions set out in Article 56 of the African Charter. The
Complainants submit that they have complied with all the
requirements. However the Respondent State argues that the
Communication does not meet certain requirements under Article 56,
in particular, Article 56(2), (5) and (7).
104. The African Commission notes that only three of the requirements
seem to be in dispute between the parties, but will proceed to examine
all seven requirements to ensure they meet the admissibility test.
105. Article 56(1) of the African Charter states that “Communication
relating to Human and Peoples’ Rights… received by the Commission
shall be considered if they indicate their authors even if the latter
request anonymity…”The Communication indicates the authors as
well as the victims of the alleged violations, and the African
Commission therefore holds that the requirement under Article 56(1)
of the African Charter is fulfilled.
106. Article
56(2)
of
the
African
Charter
states
that
“Communications…received by the Commission shall be considered if
they are compatible with the Charter of the Organization of African
Unity or with the present Charter.” The facts reveal that the
Communication is brought against the Republic of Ethiopia which
became a party to the African Charter 1998, secondly the
Communication alleges violations of rights contained in the African
Charter. The State argues that the Communication is incompatible with
the Charter as it does not indicate any provision of the Article alleged
to have been violated. The Commission notes that the Complainants
submissions on admissibility details the rights allegedly violated and
specifically cited the corresponding Articles of the Charter. The
Commission concurs with the Complainants that the Complainants
17
18
Communication 40/90.
Comm 40/90 : Bob Njoku vs. Egypt, Para 56.
20
does not necessarily need to list the articles of the Charter alleged to
have been violated. The African Commission is satisfied that the
requirement of Article 56(2) has been fulfilled.
107. Articled 56(3) of the African Charter states that “Communications
…received by the Commission shall be considered if they are not
written in disparaging or insulting language directed against the State
concerned and its institutions or to the Organisation of African Unity
now African Union (AU)”. The present Communication is not written
in disparaging or insulting language directed to the State, its
institutions or the AU and for these reasons the African Commission
holds that the requirements of Article 56(3) have been complied with.
108. Article 56(4) of the African Charter states that “Communications
relating to human and Peoples’ Rights… shall be considered if they are
not based exclusively on news disseminated through the mass media.
The Communication is not based on news disseminated through the
mass media and there is evidence to show that the Communication is
based on statements and affidavits from the victims. For these reasons,
the African Commission holds that the requirements under Article
56(4) have been fulfilled.
109. Article 56(5) of the African Charter states that “Communications
relating to human and Peoples’ Rights… shall be considered if they:
are sent after exhausting local remedies, if any unless it is obvious that
this procedure is unduly prolonged”. The Respondent State submits
that the Complainants failed to avail themselves of the local remedies
within the State. The State contends that the Complainants could have
approached the High Court, the Human Rights Commission as well as
the Judicial Administration Council. The Complainants argue that the
state has had ample notice of the alleged violations and ought to have
taken steps to deal with the same. They add with respect to the Human
Rights Commission that the latter was established nine years after the
arrest and detention of the victims and that the Commission does not
have the power to deal with matters already being handled by the
courts.
110. In the present Communication therefore, the fact that the
Complainants have not sufficiently demonstrated why they could not
exhaust domestic remedies does not mean such remedies are available,
effective and sufficient. The African Commission can infer from the
circumstances surrounding the case and determine whether such
remedies are in fact available, and if they are, whether they are
effective and sufficient.
21
111. The invocation of the exception to the rule requiring that remedies
under domestic law should be exhausted provided for in Article 56(5)
must invariably be linked to the determination of possible violations of
certain rights enshrined in the African Charter, such as the right to a
fair trial enshrined under Article 7 of the African Charter.19 The
exception to the rule on the exhaustion of domestic remedies would
therefore apply where the domestic situation of the State does not
afford due process of law for the protection of the right or rights that
have allegedly been violated.
112. In the present Communication, this seems to be the case. The
victims cannot access the courts to claim protection of their rights,
either because they have been displaced, or because they are being
harassed, intimidated and persecuted, the prevalence of violence in the
region makes any attempt at exhausting local remedies by the victims
an affront to common sense, good conscience and justice.
113. Another rationale for the exhaustion requirement is that a
government should have notice of a human rights violation in order to
have the opportunity to remedy such violation, before being called to
account by an international tribunal. The African Commission is of the
view that the Respondent State has had ample time and notice of the
alleged violation to at least create conducive environment for the
enjoyment of the rights of the victims. If it is shown that the State has
had ample notice and time within which to remedy the situation, as is
the case with the present Communication, the State may be said to
have been properly informed and expected to have taken appropriate
steps to remedy the violations alleged. The fact that the State did not
effectively deal with the alleged human rights violations means that
domestic remedies were either not available, or if they were, not
effective or sufficient to redress the violations alleged.
114. On the claim that the Communication has been settled by UN
mechanisms, the African Commission wishes to state that a matter is
settled within the context of Article 56 (7) of the African Charter if it
has been dealt with by any of the human rights treaty bodies or the
Charter bodies of the United Nations system.
115. The UN treaty bodies include bodies created under international
human rights treaties. They presently include inter alia the Human
Rights Committee (HRC), the Committee on Economic, Social and
Cultural Rights (CESCR), the Committee on the Elimination of Racial
19
Inter-American Court of Human Rights, Case of Velásquez Rodríguez. Preliminary
Exceptions, cit., para. 91. See in this connection also Judicial Guarantees during States of
Emergency (Articles 27.2, 25 and 8 of the American Convention on Human
Rights). Advisory Opinion OC–9/87 of October 6, 1987. Series A. Nº 9, para 24.
22
Discrimination (CERD), the Committee on the Elimination of
Discrimination Against Women (CEDAW), the Committee Against
Torture (CAT), the Committee on the Rights of the Child (CRC) and
the Committee on Migrant Workers (CMW).
116. The Charter bodies are those created under the UN Charter and
include the Human Rights Council (HRC), Special procedures of the
Human Rights Council, in particular, the 1503 procedure20 and the
Sub-Commission for the Promotion and Protection of Human Rights.
117. To be settled also requires that the treaty or Charter body dealing
with the matter has taken a decision which addresses the concerns,
including the relief being sought by the Complainant. It is not enough
for the matter to simply be discussed by these bodies. In the opinion of
this Commission, the present Communication was never submitted to
any of these bodies, either by the present Complainant or any other
individual or institution. The general human rights situation in the
region was rather discussed by the UN Security Council following
reports from different organizations, including agencies of the UN
itself. None of these bodies specifically dealt with, or was intended to
deal with the allegations raised in the present Communication and it
can thus not be said that the matter has been dealt with or settled as
required under Article 56 (7) of the African Charter.
118. The African Commission agrees with the Respondent State‟s
argument that the Complainants‟ argument relating to Ethiopia‟s
protection of political groups from genocide is irrelevant to the present
issue of admissibility. In same vein, the Commission notes that the
Respondent State‟s argument relating to the nature of the remedy
sought by the complainants is irrelevant to the present issue of
admissibility, and prematurely raised at this stage. The Commission
cannot therefore pronounce upon it at the present stage, and notes that
the proceedings on the merits would thus place the Commission in a
better position to make a finding in this regard.
119. Finally, in respect of the Respondent State‟s submission that the
present Communication does not conform with the procedures in the
African Charter, as it was done by way of a mere letter of appeal sent
to the (then) Special Rapporteur on Prisons and Conditions of
Detention in Africa. The African Commission notes that while Article
47 of the African Charter and Rule 88 of its old Rules of Procedure,
which relate only to Inter-State Communications, prescribe that
20
See Amnesty International v. Tunisia, African Commission on Human and Peoples' Rights,
Comm. No. 69/92 (1994) where the communication had been dealt with under the 1503
procedure and later brought to the African Commission. The Commission declared it
inadmissible in accordance with Article 56(7) of the African Charter.
23
Communications should be submitted in written form, and addressed
to the Secretary General of the OAU (now Chairperson of the AU
Commission) and the Chairperson of the African Commission; there is
no provision either in the Charter or its Rules of Procedure relating to
the prescribed form for Non-State/Individual Communications.
120. The Commission further notes that Article 56 of the Charter has an
exhaustive list of admissibility requirements, which do not include the
form of the Communication or the manner in which it was received.
The Commission therefore holds that the prescribed (and not
authorised) form for submission of Communications is not a
prerequisite for the admissibility of Communications, and is
extraneous to the present issue before the Commission. More so, the
present Communication was brought in a written for, albeit addressed
to a Commissioner of the African Commission, and the then Special
Rapporteur on Prisons and Conditions of Detention in Africa. A letter
to a visiting Special Rapporteur on Prisons and Conditions of
Detention in Africa seemed to have been the most practicable and reliable
means for the Complainants to bring the plight of the victims to the
African Commission.
121. For these reasons, the
Communication Admissible.
African
Commission
declares
this
THE MERITS
COMPLAINANTS’ SUBMISSIONS ON THE MERITS
Clarifications Submitted by the Complainants
122.
Since the submission of their brief on Admissibility the
Complainants have informed the African Commission that they are
making some substantial ammendments and clarifications to their
initial submissions.
123.
It says that in paragraph two of the brief on Admissibility it had
alleged violations of Articles 1, 2, 3, 5, 6, 7(1)(a), (b), (c), (d), 7(2), 25 and
26 of the African Charter and the right to privacy guaranteed under the
international conventions to which the Respondent State is a party to.
It states that in spite of its efforts and the fact that the violations appear
very probable, it has not been able to get evidence to support some of
the alleged violations. It has therefore decided to drop its previous
claim that Articles 3, 5, 6 and 7(2) are violated for lack of evidence. It
24
states that it will only argue violations of Articles 1, 2, 7 (1) (b) (d) of
the African Charter.
124.
The Complainants further state that Paragraph four of its brief
on Admissibility stated that the victims were detained on account of
collective responsibility for policies or abuses by the Dergue regime
rather than on account of individual responsibility for particular
criminal offences. In addition paragraph 13 stated that the 106
detainees were collectively charged under one file, and have been
defending their case collectively and that the procedure of collective
trial has made it difficult to individualize guilt, or to prove/rebut
individual‟s innocence and guilt.
125.
The Complainants say that they wish to qualify the above
statement to the effect that although there was joinder, the charges, the
conviction and the sentences are individualized. They argue that the
trial of all those who have been alleged to have committed crimes
during the era of the former Government were not conducted in a
single case or in a single venue.21 Rather, there have been several trials
going on at different locations throughout the country both at the
Federal High Court divisions and the Supreme Courts of the regional
states of the Ethiopian Federation.
126.
They also state that from the former Dergue Officials accused
jointly, for example, one defendant was acquitted, while others were
convicted and sentenced to terms of imprisonment ranging from 23
years to life. They state that the Victims were able to present separate
arguments of their own, and so they are accordingly clarifing their
previous submissions. It nevertheless argues that the joinder of the
trials has immensely contributed to the undue delay in the trial of the
former Dergue Officials.
127.
The Complainants also informs the African Commission that
paragraph nine of its brief on Admissibility indicates that the
proceedings are yet to come to a conclusion fifteen years after the
detention of the Complainants and twelve years after the
commencement of the proceedings. They state that the statement was
true over a year ago, however, some developments have taken place
subsequently. They state that on 12 December 2006, the Ethiopian
Federal High Court convicted many of the victims, among others, on
charges of genocide and crimes against humanity. They also state that
on 11 January 2007 prison sentences ranging from 23 years to life
21
See also D Hailegebriel „Prosecution of genocide at international and national courts: A comparative
analysis of approaches by ICTY/ICTR and Ethiopia/Rwanda‟ (a dissertation submitted in partial
fulfilment of the degree LLM in Human Rights and Democratisation in Africa – University of Pretoria
(2003)) 26.
25
imprisonment were passed, while some of the convicted persons were
sentenced to death. They also inform the African Commission that the
SPO has since filed an appeal to the Federal Supreme Court
demanding capital punishment for many of the 55 sentenced to life
imprisonment. Some of the convicted persons have also appealed
while others are expected to file cross appeals. Therefore the trials, at
least for some of the 55 victims, are yet to be completed.
128.
The Complainants also stated that the major violations argued,
hereunder, relate to prolonged pre-trial detention and trials lasting for
more than 12 years, thus resulting in violations of the Complainants‟
right to fair trial.22 Thus article 7 of the African Charter on Human and
Peoples‟ Rights is the main legal basis on which it anchors its
argument. They also state that in recognition of Article 60 of the
African Charter by which the African Commission is empowered to
draw inspiration from other international instruments for the
protection of human and peoples‟ rights, they are drawing the
attention of the African Commission to Article 14 of the International
Covenant on Civil and Political Rights (ICCPR), Article 8 of the
American Convention on Human Rights (American Convention) and
Article 6 of the European Convention on Human Rights (European
Convention).
129.
In additional they draw the attention of the African Commission
to, among others, the Guidelines on the Role of Prosecutors, the Basic
Principles of the Role of Lawyers and the Statutes of the International
Criminal Court and the International Criminal Tribunals for Rwanda
and the former Yugoslavia.
Alleged Violation of Article 1 and 2 of the African Charter
130. The Complainants allege that the Respondent State failure to
recognize the rights of the former Dergue officials enshrined in the
African Charter violates Article 1 and 2 of the African Charter. They
argue that States Parties to the Charter are obliged not only to
recognize the rights, duties and freedoms enshrined in it but also
undertake to adopt legislative and other measures to give effect to
them. States are also required to ensure that these rights are available
to all without discrimination. The Complainants submit that where a
22
The concept of fair trial encompasses the following major components: (1) equality of arms, (2) right
to legal aid, (3) right to be presented in person at the trial, (4) public character of the hearing, (5) trial
within a reasonable time, (6) independent, competent and impartial tribunal established by law, (7)
presumption of innocence and protection against self-incrimination, (8) prompt and adequate
information on the accusation, (9) adequate time and facilities for the preparation of the defence, (10)
free assistance of an interpreter, (11) right of appeal, (12) right to compensation and (13) ne bis in
idem.
26
State neglects to protect the rights in the Charter, this can constitute a
violation of Article 1, even if the State or its agents are not the
immediate cause of the violation.
131. The Complainants further submit that by failing to respect the
Victims right to a fair and speedy trial guaranteed in Article 7 of the
African Charter, the Respondent State is similarly in violation of
Articles 1 and 2 of the Charter as a violation.
Alleged Violation of Article 7(1)(b) – right to have ones cause heard.
Article 7(1)(b) of the African Charter states:
(b) the right to be presumed innocent until proved guilty by a competent court
or tribunal;
132.
The Complainants argue that the Respondent State has violated
the rights of the former Dergue officials to be presumed innocent until
proved guilty by a competent court or tribunal. The Complainants state
that the presumption of innocence is universally recognized23 and
proclaimed by all major legal systems of the world.24 They stated that
the Respondent State violated the right to be presumed innocent
enshrined in Article 7 (1) (b) of the Charter in the following ways:
a. Proclamation No. 22/1992 which provides for the establishment of the
special prosecutors office violates the right to be presumed innocent as
guaranteed in Article 7(1)(b) of the African Charter. Proclamation No.
22/1992 provides, inter alia, as follows:
WHEREAS the people of Ethiopia have been deprived of their personal
human and political rights and subjected to gross oppression under the yoke
of the fascistic rules of the Dergue-WPE regime for the last seventeen years;
WHEREAS heinous and horrendous criminals which occupy a special chapter
in the history of the peoples of Ethiopia have been perpetrated against the
people of Ethiopia by officials, members and auxiliaries of the security and
armed forces of the Dergue-WPE regime;
WHEREAS officials and auxiliaries of the Dergue-WPE dictatorial regime
impoverished the economy of the Country by plundering illegally
confiscating and destroying the property of the people as well as
misappropriating public and state property;
WHEREAS it is the interest of a just historical obligation to record for
posterity the brutal offences the embezzlement of property perpetrated
23
Communication No. 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and
Assistance Project/ Nigeria, as in n 26 above, paragraphs 40 -41.
24
See Antonio Cassese, as in n 24 above, page 390. See also UDHR, ACHR, ECHR and the Statutes of
the ICTY (Article 21 (3), the ICTR (Article 20 (3), and the ICC (Article 66).
27
against the people of Ethiopia and to educate the people and make them
aware of those offences in order to prevent the recurrence of such a system of
government.
133.
The Complainants argues that it is clear from this Proclamation
that even before the Victims were brought to court, they were branded
criminals by the Proclamation. Thus, it argues, in the eyes of the
Transitional Government, the Victims had subjected Ethiopians to
gross oppression under the yoke of a fascistic rule; they had
perpetrated „brutal‟, „heinous‟ „horrendous‟ crimes which occupy a
special chapter in Ethiopia‟s history; they had impoverished the
Ethiopian economy through illegal plundering, destruction and
misappropriation of public property.
134.
It argues that the Proclamation looks more like a legislative
sentence which only ran short of declaring the Victims guilty even
before they were charged. It avers that legislation is conceived as a
system of rules with a generality of application for the regulation of the
life and activities of the community as a whole and singling out a
person for individualized treatment by legislation may not only be
arbitrary and discriminatory, it can lend itself to oppression, favoritism
or other kinds of abuse.
135.
They further aver that in the performance of their duties, the
Special Prosecutor and his officials are expected to be impartial and to
protect the public interest with objectivity, take proper account of the
position of the suspect and the victim, and pay attention to all relevant
circumstances, irrespective of whether they are to the advantage or
disadvantage of the suspect.25 However, they aver that, from the way
the law setting up the Special Prosecutor‟s Office was couched, this
was not the role envisaged for the Office of the Special Prosecutor.
They state that the Proclamation made the Special Prosecutor more of a
“persecutor” than “prosecutor” and that it was obvious based on the
Proclamation that the Special Prosecutor began the prosecution and
investigation of the cases against the complainants on the basis that
they were already guilty and needed to prove their innocence.
b. statements made by the Respondent State officials during and after the trial
of the Victims violate the violates the right to be presumed innocent as
guaranteed in Article 7(1)(b) of the African Charter.
25
See Rule F (h) (i) (2) of the Principles and Guidelines on the Right to a Fair Trial and Legal
Assistance in Africa, as in n 25 above.
28
136.
The Complainants state that Dergue officials were treated as if
they were guilty of the offences with which they were charged even
before their guilt was established by a competent court. They argue
that statements from the Respondent State at the pre-trial and trial
period clearly demonstrate the government‟s hostility and bias
towards the Victims.
137.
The Complainants state that while the SPO gathered evidence
and the Respondent State trained and appointed judges, the former
Dergue Officials were subjected to „massive media propaganda and
untold defamation by top government officials and their cadres‟.26
They state that the SPO repeatedly appealed to the public through the
Government media and promised to pay compensation, house rent
and jobs to people who were willing to testify against the former
Dergue Officials. It states that workshops and mass demonstrations
were organized and red-terror victims committees set up to help in
gathering evidence against the former Dergue Officials. They say that
Prime Minister Meles Zenawi also repeatedly stated that having the
former Dergue Officials punished was part and parcel of their armed
struggle and that whatever these officials did in hours of darkness
„would be retaliated through the courts and in the manner he so
desires in broad daylight‟.
138.
The Complainants also state that talking to the New York Times
about the activities of the Dergue regime, the Special Prosecutor Girma
Wakjira stated that "it was not simply eliminating your enemy, it was
showing savagery at its utmost."27 They stated that the hostility and
bias continued even after their trial and in a letter addressed to the
Ministry of External Affairs, the Special Prosecutor stated: “The
genocide started as soon as the Derg came to power and only stopped
in May 1991, when the Derg was military (sic) defeated and removed
from power.28
139.
Quoting the Respondent State submissions on the Merit, they
observe that its own submissions disclose that: “All these unlawful acts
26
See page 2 of letter dated April 14, 2004, written by Filke Selassie Wogderes to Commissioner Dr.
Vera MlangazuwaChirwa.
27
See James c. Mckinley Jr.: Ethiopia Tries Former Rulers In 70's Deaths, The New York Times, April
23, 1996, available on
http://query.nytimes.com/gst/fullpage.html?res=9D05E6D81F39F930A15757C0A960958260 , last
accessed 02/04/08.
28
See Letter Ref. No. 3-1/581/99 dated 12 August 2007 from the Office of the SPO and addressed to
the Ministry of Foreign Affairs of the Deferal Democratic Republic of Ethiopia, especially paragraphs
1.1 to 1.10. It is attached to the Ethiopian Government‟s brief on the merits. The letter accuses the Derg
officials committing heinous crimes.
29
were committed in violation of the existing domestic laws of the
country and relevant international obligations of Ethiopia. These
heinous criminal acts were committed in extremely sophisticated and
covert circumstances. What makes the Dergue very unique is that it
continued its atrocious acts up to its overthrow in May 1991”29
140.
It says that the Respondent State‟s brief goes on to outline the
„grave human rights violations‟, „multitude of crimes committed
against humanity‟, „heinous criminal acts‟, „heinous crimes of genocide
and crimes against humanity‟ committed all over Ethiopia by the
Dergue regime.
141.
The Respondent State argues that faced with such „heinous‟ and
„grave‟ „crimes against humanity‟ and „genocide‟, the Respondent State
took it for granted that the Victims were guilty and even portrayed
them as „criminals‟ even before they were tried. They further argue that
the officials of Respondent State did not conceal their bias against the
victims and the Special Prosecutor and his officials saw their task as
prosecuting criminals thereby violating the principle on presumption
of innocence enshrined in Article 7 (1) (d) of the Charter. They aver that
the Dergue Trials looked more as revenge when “the ultimate
desideratum should be to engrave the rule of law into the social fabric
of Ethiopian society”.30
c. Excessive long preventive detention or pre-trial imprisonment is a violation
the the right to be presumed innocent as guaranteed in Article 7(1)(b) of the
African Charter
142.
The Complainants submit that the procedure adopted by the
Respondent State in bringing the accused persons to justice failed to
assign blame within a reasonable length of time. The Complainants
argue that the Victims were detained for three years before their trial
finally started in 1994. They state that the trial dragged on for more
than thirteen years before a final judgment was reached in 2007. It
avers that pre-trail detention of the Victims and their long continuous
detention even after they were charged essentially meant substituting
pre-trial detention for their punishment. They state that their long
preventive custody thus lost its purpose as an instrument to serve the
interests of sound administration of justice. They also argues that the
prolonged imprisonment without conviction of the Victims for a
period of about 16 years clearly violates their right to be presumed
innocent in that it was meant as a sanction prior to the delivery of the
judgment. The Complaint concludes that it is safe to say that the
29
30
See Respondent State Brief [on Merits] paragraph 7, as in n 70.
See Respondent State Response on Merits.
30
Victims were criminally punished by presuming their guilt even before
they were heard, in violation of the principle of presumption of
innocence established in Article 7 (1) (b) of the African Charter, Article
XX of the Universal Declaration and rule XXX of the Principles and
Guidelines on fair trial.31
Alleged Violation of Article 7(1)(d) – right to have ones cause heard.
Article 7(1)(d) of the African Charter states:
(d) the right to be tried within a reasonable time by an impartial court or
tribunal.
143.
The Complainants allege that the Respondent State has violated
the former Derg offcial‟s right to a fair trial by deliberatley denying
them the right to be tried by an impartial court within a reasonabble
time as enshrined in Article 7(d) of the African Charter.
144.
The right to an impartial hearing within a reasonable time is one
of the cardinal elements of the right to fair trial. The Article is
specifically designed to ensure that the charges which the penal
procedure places on the individual are not unremittingly protracted and
do not produce permanent harm. An individual who is accused and held
in custody is entitled to have his or her case resolved on a priority basis
and conducted with diligence.
145. With regards to the Dergue trials, the Complainants submit that even
though several causes have been attributed for delays in the trials,
none of these causes are attributable to the former Dergue Officials.
The Complainants state that the delay in rendering a judgment was
therefore not due either to negligence or lack of interest on the part of
the Victims rather, to the inactivity and failure of the State to proceed
with the cases against the complainants with the diligence required
and without undue delay. They aver that the Dergue officials, had their
rights violated for several years and the Respondent State failed to put
in place the necessary structures for them to be tried expeditiously.
They state that the causes for the delay include the following:
a. Dismantling of the Ethiopian Court system by the Government
b. ambitious nature of the transitional justice ethiopia pursued
c. absence of appropriate legal checkpoints
31
See also Waldemar Gerónimo Pinheiro and José Víctor dos Santos v. Paraguay, as cited in n 89
above, paragraphs 85-86.
31
d. joinder of cases and accused persons
e. the charges were not clear and specific which hampered their
speedy trial
f. other causes of delays in the dergue trials
Dismantling of the Ethiopian Court system by the Government
146.
The Complainants state that immediately upon seizing power,
the new Respondent State dismantled almost all state institutions,
including the court system, by summarily dismissing close to 300
judges on the alleged ground that the judiciary had been an ally to the
Dergue regime. Consequently they aver, the Respondent State could
not afford a speedy trial to the Dergue officials due to shortage of
judges. It argues that there were many instances where cases were
adjourned for lack of quorum of judges.
147.
The Complainants aver that at the beginning, the Special First
Bench of the Federal High Court, composed of three Judges, was
exclusively dealing with the trial of the Dergue officials. However,
from the year 2001 there to the end of the trial date, it has been
additionally charged with the equally complicated and numerous anticorruption cases, thereby reducing significantly the amount of time the
Bench could devote to the Dergue officials‟ trials. This additional
assignment, it argues, was given to the Bench when the judicial
authorities were fully aware of the fact that the Bench was exclusively
constituted for the trial of the Dergue officials and that their trials have
not been concluded ages after they were charged.
Ambitious Nature of the Transitional Justice Ethiopia Pursued
148.
The Complainants aver that another cause is the ambitious
nature of the model of transitional justice Ethiopia pursued. The SPO
was established with two mandates: (1) to establish for public
knowledge and for posterity a historical record of the abuses of the
Mengistu regime and (2) to bring those criminally responsible for
human rights violations and/or corruption to justice.32They say from
these two it was very clear that the SPO gave more attention and
priority to its first mandate.33
32
See Preamble to Proclamation No.22/1992.
In this regard Y. Haile-Mariam observed: „The recording function, while very important, cannot take
precedence over the right to a speedy trial. It seems the Ethiopian court has two functions that may be
contradictory--trying the accused and acting as a Truth Commission.‟
33
32
149.
By the opening of the trials in December 1994, the SPO had
gathered 309,215 pages of relevant government documents, many with
clear signatures of high ranking officials.34 They state that in addition
to this kind of documentation, forensic teams continued searching for
and exhuming dozens of mass graves which allegedly contained the
bodies of murdered civilians. They said that the SPO stated in
February 1994 that it had "tens [sic] times more evidence than needed
to successfully prosecute several of the detained and many of the exiles
for serious criminal offenses." By August 1998, the Complainants
allege, the SPO presented five hundred prosecution witnesses and
warned that he had another five hundred to go. The Complainants
argue that the SPO, therefore, insisted on and indeed introduced
thousands of witnesses while a smaller number could establish and
prove the charges against the former Dergue Officials. They argue that
with such extensive documentary evidence, one thousand prosecution
witnesses is excessive and unduly infringes upon the right of the
accused to a fair and speedy trial. They aver that the SPO did not have
to wait until it gathered „ten times‟ more evidence to try the
complainants bearing in mind the fact that they remained in detention
throughout the investigation and trial of their cases.
Absence of Appropriate Legal Checkpoints
150.
The Complainants state that the absence of appropriate legal
checkpoints that could force the Respondent State to diligently and
expeditiously work to investigate, charge and conduct trials also
contributed to the delay. It states that the right to petition for writ of
habeas corpus, for example, was not available to many of the victims and
the statute of limitation with regard to the crimes the victims were
alleged to have committed was removed.35
Joinder of Cases and Accused Persons
151.
The Complainants state that Articles 116 and 117 of the
Ethiopian Criminal Procedure Code provide for joinder of charges and
accused persons. They state that even though joinder per se is
permissible, where there is conflict of interests that may cause serious
prejudice to the accused or to the interests of justice, which is the case
with the Dergue trials, the courts should order separate trials. They
aver, for instance, that if the joinder of accused persons would cause
undue delay to the trials of others, the court should not permit joinder
and, if any, it should order for separate trials. They argue that in the
Dergue Trials, the SPO brought cases joining several accused and
34
A U.S. attorney who visited Ethiopia later wrote: „Not since Nuremberg has such documentary
evidence been assembled suggesting the degree of complicity on the part of senior government
officials. In many instances, there were verbatim transcripts made of critical meetings. There are over
200 volumes of these transcripts as well as audio tapes of many of these meetings.‟
35
See Article 7 (3) of Proclamation No 22/1992.
33
counts together. They state that more than seventy accused persons
were charged with numerous counts. They argue that one could find
one accused charged with only one count while another accused in the
same file charged with many counts.
152.
The Complainants also state that the Dergue trials were also
delayed because of the problem of joinder of cases, especially when it
came to the hearing of witnesses. They state that where an accused
person who was jointly charged with others was absent for various
reasons, the other co-accused persons would have no option but to
wait for his return because that accused person had the right to be tried
in his presence and to cross-examine witnesses called in his case. They
also state that where an accused who was jointly charged with the
other accused persons was tried in abstentia, the other accused persons
were also obliged to wait until all the evidence was concluded,
including the evidence adduced against the accused person (s) tried in
abstentia. They argue that these situations led to periodic
adjournments of the case and thereby caused delays for the rest of the
accused persons. The Complainants argue that the Dergue trials were,
therefore, unduly delayed mainly because of the numerous
adjournments occasioned by the joinder of the accused persons and the
cases against them. They state that a large number of charges were
unnecessary to secure a conviction because it created unnecessary
delay in processing those defendants as well as those waiting for trial.
The charges were not Clear and Specific which Hampered their Speedy
Trial
153.
The Complainants state that the charges filed against the Dergue
officials were not clear and specific and this hampered their speedy
trial. In many respects, the indictments were not as clear and succinct
as they needed to be for the accused to understand them. They state
that this is a defect that goes to the form of the indictment and a
violation of Articles 111 and 112 of the Ethiopian Criminal Procedure
Code.36 It says that the SPO, for example, filed charges of genocide,
crimes against humanity and other crimes against the former highlevel Dergue Officials.
154.
The Complainants say that the accused were held for the
murder of 1,823 persons, causing grave bodily injury to ninety-nine
persons and the disappearance of 194 individuals. The Complainants
say that the original Ethiopian indictments written in Amharic were
more than two hundred pages long and alleged 211 criminal counts.
They state that according to the indictment, persons who allegedly
36
These articles of the Ethiopian Criminal Procedure Code (Articles 111 and 112) spell out the content
and form of the charges and descriptions of the circumstances under which the crimes have been
committed "so as to enable the accused to know exactly what charge he has to answer."
34
committed "offenses" cited in the Proclamation were charged with
violations of Articles 281 and 286 of the Ethiopian Penal Code, which
provides for the crime of genocide, crimes against humanity, and
incitement to genocide and crimes against humanity. They further state
that in the alternative, the defendants were charged with aggravated
homicide under Article 522 of the Ethiopian Penal Code, grave willful
injury under Article 538, abuse of power under Article 414 and
unlawful arrest or detention under Article 416. It states that the
indictments further accused the defendants of establishing themselves
as a provisional military council or government and setting up
committees and sub-committees for the purpose of committing
genocide and crimes against humanity against various political groups
whom the accused referred to as "anti-people" and "counterrevolutionary" in violation of Articles 32 and 281 of the Penal Code of
Ethiopia.
155.
The Complainants further state that the indictments alleged that
the defendants incited and encouraged people to massacre thousands
of members of different political groups in violation of Articles 32(1)(a)
and 286(a) of the Penal Code. They argue that the fundamental
problem with these indictments was that the details of the crimes were
unclear because several concepts and legal doctrines were lumped
together in one very long sentence.
Other Causes of Delays in the Dergue Trials
156.
The Complainants state that apart from the above, there were
other factors which caused the delays. Firstly, there was a delay by the
Respondent State to decide how to handle the matter. They argue that
the Respondent State made its decision to take the matter through the
legal machinery after having arrested the former government officials
for more than one year. When the Special Prosecutors Office was
established, they say, some ex-officials had been jailed for 18 months
without charges, taking almost five years for the prosecution finally to
come up with a charge of genocide against the majority of the
defendants. They say that even after the opening of the case against the
Victims before the court there were still some problems associated with
the prosecution. It also states that the failure of the prosecution to
present evidence on time was the major problem. They aver that
though the prosecutor gathered the necessary exhibits and they are
found in its control, it was common to see the Prosecutor asking the
court for additional adjournment to present them.
157.
They submit that the Respondent State should be found liable
for violating Article 7 (1) (d) of the Charter in the absence of evidence
from it attributing the delay to the negligence or lack of interest of the
complainants. They note that since the conduct of the Dergue officials
35
has not contributed to slowing down the proceedings, the delay in the
proceedings can be only attributed to the Respondent State. they argue
that the long and unnecessary delay in the Dergue Trials was
occasioned by the inactivity and failure of the Respondent State to
proceed with the trials with the diligence required and without undue
delay.
158.
They conclude that the Victims were entitled to have their case
decided expeditiously and with priority by the national authorities. They
urge the African Commission to find for the Victims that the length of
time for which they had been held in custody pending trial and the
number of years it took for the trial court to come up with a judgment on
the merits to be excessive and unreasonable in the light of the
Respondent State‟s constitutional principles and international
commitments. This they say is in line with national and international
jurisprudence, including that of the African Commission, on the matter.
Respondent State’s Submissions on the Merits
159.
The Respondent State for its part, argues that local remedies are yet
to be exhausted. It argues that the Complainants have not yet
completed the local remedies available to them and therefore submit
that it is sufficient ground for dismissing the Communication.
160. The Respondent State further alleges that there is no conflict
between the Penal Code of Ethiopia and the International Convention
on the Prevention and Punishments of the Crime of Genocide. It argues
that the Complainant have made a lengthy argument regarding a
conflict between Article 281 of the Penal Code of Ethiopia and the 1948
International Convention on the Prevention and Punishments of
Crimes of Genocide to which Ethiopia is party and argue that their acts
would not constitute a criminal act.
161. The Respondent State further argues that firstly, the Complainants
were wrong in arguing that political crimes should be seen as out of
the purview of the Conventions as the Conventions do not prohibit
anywhere in its provisions the inclusion of broader definitions under
national laws. It underlines the fact that from the outset, the Penal
Code was issued in 1957 well before the Dergue came to power and
was not targeting any specific political or other group of Dergue
Regime.
162. Secondly, the Respondent State underlines the fact that the Dergue
officials have not denied that they have extra-judicially killed and
harmed innocent civilians and that they were committing the crimes in
violation of the existing criminal law to stay in power. It is worth
36
emphasizing, the Respondent state submits, that the Dergue amended
the Penal Code in 1982 and issued a Special Penal Code through
Proclamation No.114/1982 and did not bother to amend this part of the
Penal Code including the provision they are contesting hereunder. The
Respondent State explains that the Dergue were applying the Penal
Code in Ethiopia until the downfall of their regime and contested its
application when it was found that it came to regulate their past
criminal activities.
163. Thirdly the Respondent State argues that the Federal High Court
had rejected, with the appropriate legal reasoning, when the
Complainants raised the Penal Code in their preliminary objections
during the trial and finally, the Respondent State argues that even if
one could allege that there could be a conflict between the Penal Code
and the Convention, this type of issue that raises constitutional
interpretation shall be the mandate of the House of Federation in
accordance with Article 62(1) and 83(1) of the Constitution of the
Republic of Ethiopia. Thus the Respondent State submits that the
African Commission cannot replace national mechanisms for local
remedies and could not be regarded as a tribunal substituting national
court.
164. The Respondent State further argue that full judicial independence
is guaranteed by domestic laws in Ethiopia as is provided for in Article
78 of the Constitution. It argues that in the Constitution further
guarantees in Article 78(4) that special or ad hoc courts which take
judicial powers away from the regular courts or institutions legally
empowered to exercise judicial functions and which do not follow
legally prescribed procedures shall not be established.
The
Constitution, the Respondent State submits, also guarantees in Article
79(2) and (3) that the courts from any level shall be free from
interference by government or any other source and that the judges
shall exercise their functions in full independence and shall be directed
solely by law.
165. The Respondent State say that every person in Ethiopia has the
right to access impartial and independent courts and judges having
jurisdiction over any alleged infringements including violations of
human rights. It further submits that the Complainants‟ submission
regarding the partiality of Ethiopian judiciary is unfounded and not
substantiated by any evidence whatsoever.
166. The Respondent State maintains that the African Commission
should dismiss the Communication on the following grounds:
37
For lack of exhaustion of local remedies because the subject matter
of the petition before the African Commission is still pending before
a national court and entertaining it will interfere in the appeal and
might lead to contradictory findings with the Supreme Court;
The Communication lacks Locus Standi because the Communication
does not have a legal basis;
The allegation that elimination of political groups that was
perpetrated all over the country on a large-scale does not constitute
genocide, fails to pass the criteria for criminal act constituting
genocide and that the line of argument of the Complainants
concerning the inconsistency between the Penal Code of Ethiopia
and the International Convention on the Prevention and
Punishments of the Crime of Genocide, does not hold water.
According to the Respondent State, if there arises a conflict, the
matter should be referred to the House of Federation in accordance
with the Constitution of Ethiopia;
It mentions the African Commission‟s Communication Procedure
which clearly stipulates that a Communication which does not
illustrate prima facie violations of the African Charter by invoking
specific provisions of the Charter shall not be examined. In this
regard the Respondent State underscores that a number of
Communications presented to the African Commission were
rejected because the Communications, while they cited provisions
in the UN texts, failed to make any reference to the provisions of
the African Charter;37
167.
The Respondent State also refer to the African Commission‟s
Guidelines on Submitting Communications, where applicants are
expected to indicate the courts where they sought domestic remedies
and must attach copies of court judgments, writs of habeas corpus and
other relevant documents. They submit that the Complainants have not
attached any such evidences and documents and therefore their
application fails to comply with the Guidelines for Communication to
the African Commission.
168.
Finally the Respondent State argues that under paragraph 23 of
the Complainants‟ letter to the Chairperson of the African
Commission, their prayer of relief makes it very clear that the
Complainants do not see the African Commission as a source of their
relief but are rather seeking the establishment of another impartial
37
See Comm 68/92, 8/92 and 69/92.
38
independent investigative body, which is not within the mandate of
the African Commission.
169.
The Respondent State therefore request the African Commission
to dismiss Communication 301/05 as unfounded for the foregoing
reasons.
The African Commission’s Decision on the Merits
170.
The Complainants base their claims against the Respondent
State on the violations of Articles 1, 2, and 7(1)(b)(d) of the African
Charter.
171.
Alleged Violation of Article 1: Article 1 of the African Charter
requires all the States Parties to the African Charter to recognize the
rights guaranteed therein and to adopt legislative and other measures
to give effect to these rights, duties and freedoms.
172.
Alleged Violation of Article 2: Article 2 of the African Charter
further imposes a duty on States Parties to the African Charter to
ensure that every individual enjoys the rights and freedoms recognized
and guaranteed in the Charter without distinction of any kind such as
race, ethnic group, color, sex, language, religion, political or any other
opinion, national and social origin, fortune, birth or other status.
173.
The Complainants discuss the two Articles together. They argue
that the Respondent State‟s failure to recognize the rights of the former
Dergue Officials enshrined in the African Charter violates Articles 1
and 2 of the African Charter.
174.
The Complainants argue that Article 1 gives the African Charter
a legally binding character38 while Article 2 “abjures discrimination on
the basis of any grounds set out, among them “language… national or
social origin… birth or other status…”39 it argues that States Parties to
the African Charter are obliged not only to recognize the rights, duties
and freedoms enshrined in it and to undertake to adopt legislative and
other measures to give effect to them, but also to ensure that these
rights are available to all without discrimination. Thus, by ratification,
it argues, States are obligated to diligently undertake the
harmonization of their legislation with the provisions of the Charter.40
Where a State neglects to protect the rights in the Charter, this can
38
See Communications 147/95 and 149/96, Sir Dawda Jawara/The Gambia, paragraph 46.
Communication 211/98 Legal Resources Foundation/Zambia paragraph 63.
40
Communications 48/90, 50/91, 52/91, 89/93, Amnesty International and Others/ Sudan, paragraph 40
39
39
constitute a violation, even if the State or its agents are not the
immediate cause of the violation.41
175.
The Complainants state that the Respondent State ratified the
African Charter on 15 June 1998 and is obligated to give effect to the
rights guaranteed therein without discrimination. They argue that as
stated by the Commission in Purohit and Moore/The Gambia,42 „when a
state ratifies the African Charter it is obligated to uphold the
fundamental rights contained therein. Otherwise if the reverse were
true, the significance of ratifying a human rights treaty would be
seriously defeated.‟
176.
They argue that by failing to respect the Victim‟s right to a fair
and speedy trial guaranteed in Article 7 of the African Charter, the
Respondent State is in violation of Articles 1 and 2 of the African
Charter. They further state that a violation of any provision of the
African Charter automatically means a violation of Article 1.43
177.
The African Commission notes that in its submission of the
Merits, the Respondent State did not specifically address the
allegations made against it that it had violated Articles 1 and 2 of the
African Charter.
178.
According to the African Commission's long-standing practice,
in cases of human rights violations, the burden of proof rests on the
government (See, ACHPR/59/91, ACHPR/60/91, ACHPR/64/92,
68/92, 78/92, ACHPR/87/93, ACHPR/101/93). 44 If the government
provides no evidence to contradict an allegation of human rights
violation made against it, the Commission will take it as proven, or at
the least probable or plausible. On the information available, the
Commission considers that there was a violation of Articles 1 and 2 the
African Charter.
179.
To reiterate in the instant matter if the government provides no
evidence to contradict an allegation of human rights violation made
against it, the African Commission will take it as proven, or at the least
probable or plausible. This principle conforms with the practice of
other international human rights adjudicatory bodies and the African
Commission‟s duty to protect human rights. Since the Respondent
State did not respond to the allegations, the African Commission must,
regrettably, come to a conclusion based on the facts and opinions
submitted by the Complainants.
41
See Communication 74/92, Commission Nationale des Droits de L’Homme et des Libertes/Chad,
paragraph 20.
42
See Communication 241/2001, Purohit Moore v. The Gambia, paragraph 43.
43
Communications 147/95 and 149/96, Sir Dawda Jawara/The Gambia, as in n 14 above.
44
(See, ACHPR/59/91, ACHPR/60/91, ACHPR/64/92, 68/92, 78/92, ACHPR/87/93, ACHPR/101/93).
40
The African Commission,
180.
Declares that the Respondent State has violated both Articles 1
and 2 of the African Charter.
Alleged Violation of Article 7(1)(b) – right to have ones cause heard.
Article 7(1)(b) of the African Charter states:
(b) the right to be presumed innocent until proved guilty by a competent court
or tribunal;
181.
The Complainants argue that Respondent State has violated the
rights of the former Dergue officials to be presumed innocent until
proved guilty by a competent court or tribunal. It argues that the
presumption of innocence is universally recognized45 and proclaimed
by all major legal systems of the world.46 They state that the
Respondent State violated the right to be presumed innocent enshrined
in Article 7 (1) (b) of the Charter in the following ways:
a. Proclamation No. 22/1992 which provides for the establishment of the
special prosecutors office violates the right to be presumed innocent as
guaranteed in Article 7(1)(b) of the African Charter.
b. . statements made by the Respondent State officials during and after
the trial of the Victims violate the violates the right to be presumed
innocent as guaranteed in Article 7(1)(b) of the African Charter.
c. Excessive long preventive detention or pre-trial imprisonment is a
violation the the right to be presumed innocent as guaranteed in
Article 7(1)(b) of the African Charter.
The African Commision‟s Analysis on Article 7(1)(b)
182.
The Respondent State have not specifically addressed the
allegation that Proclamation No. 22/1992 violated the right to be presumed
innocent as guaranteed in Article 7(1)(b) of the African Charter.
183.
It merely stated that after the Dergue regime was overthrown in
1991, cases had to be instituted in ten federal and regional courts aginst
6000 defendants. It stated that the complexity of bringing all those
responsible for crimes committed during the Dergue regime would be
45
Communication No. 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and
Assistance Project/ Nigeria, as in n 26 above, paragraphs 40 -41.
46
See Antonio Cassese, page 390. See also UDHR, ACHR, ECHR and the Statutes of the ICTY
(Article 21 (3), the ICTR (Article 20 (3), and the ICC (Article 66).
41
a very daunting task. It stated that taking into account the voluminous
nature of the cases, the Transitional Government of Ethiopia
established an independent body known as the Special Prosecutor‟s
Office on 8 August 1992 by Proclamtion No 22/1992 for the purpose of
conducting prompt investigation and bringing to trial arrestees as well
as those persons responsible for having committed offences and at
large within and outside the country.
184.
In its Principles and Guidelines on the Right to a Fair Trial and
Legal Assistance in Africa, the African Commission reiterated that
everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to law. The
presumption of innocence, the African Commission further stated,
places the burden of proof during trial in any criminal case on the
prosecution. In its Resolution on the Right to Recourse and Fair Trial
(1992), the African Commission further recognised the essential
elements of a fair hearing to include, among other things, that persons
charged with a criminal offence shall be presumed innocent until
proven guilty by a competent court.47
185.
It is generally agreed that the presumption of innocence
specifically entails that the person charged with a crime must be
treated, within and outside criminal proceedings, as being innocent
until proven guilty. As guaranteed in the African Charter, the principle
constructs a presumption in favor of an individual accused of a crime
according to which he or she is considered innocent until criminal
responsibility is established in the case before the courts. In accordance
with general opinion, which is also specifically confirmed by the
European Court of Human Rights, the presumption of innocence is
available not only to the defendant in the strictest sense of the word
but also to an accused person prior to the filing of a criminal charge. A
person has this right „until proved guilty according to law‟, i.e., until
conviction becomes binding following final appeal.48 The presumption
applies during the pre-trial investigations and should be considered
even stronger with regard to a person against whom „not even a prima
facie case has been confirmed‟.49
186.
The African Commission agrees with the Complainants that the
principle of the presumption of innocence constitutes a fundamental
principle which protects everybody against being treated by public
officials as if they were guilty of an offence even before such guilt is
established by a competent court. It agrees that the Proclamation
setting up the Special Prosecutor Office in itself clearly presumed the
47
ACHPR /Res.4(XI)92.
See Manfred Nowak, page 254.
49
See Antonio Cassese, as in above.
48
42
complainants‟ guilt, thereby violating the principle of presumption of
innocence. In Communication 224/98: Media Rights Agenda v Nigeria, the
African Commission agreed with the Complainant that that prior to
the setting up of the tribunal, the military Government of Nigeria
organised intense pre-trial publicity to persuade members of the public
that a coup plot had occurred and that those arrested in connection
with it were guilty of treason. The African Commission agreed further
that any possible claim to national security in excluding members of
the public and the press from the actual trial by the tribunal cannot be
justified, and therefore in breach of the right to fair trial, particularly,
the right to presumption of innocence.
187.
As in the case of Communication 224/98: Media Rights Agenda v
Nigeria, in the instant matter the Respondent State has not really
contested the veracity of the Complainant's allegation. In this
circumstance, the African Commission is obliged to accept this as the
facts of the case and therefore finds the Respondent State in violation
of Article 7(1)(b) of the African Charter.
188.
Again, the Respondent State have not specifically addressed the
allegation that Proclamation No. 22/1992 violated the right to be
presumed innocent as guaranteed in Article 7(1)(b) of the African
Charter. Statements made by the Respondent State officials during and
after the trial of the Victims violate the violates the right to be
presumed innocent as guaranteed in Article 7(1)(b) of the African
Charter. The Respondent State have not specifically addressed the
allegation in the Proclamation.
189.
The Respondent State have not addressed the allegation that
statements made by the Respondent State officials during and after the trial of
the Victims violate the violates the right to be presumed innocent as
guaranteed in Article 7(1)(b) of the African Charter
190.
The presumption of innocence implies a right to be treated in
accordance with this principle. In Civil Liberties Organisation, Legal
Defence Centre, Legal Defence and Assistance Project v Nigeria the African
Commission stated that the principle of the presumption of innocence
constituted a fundamental principle, which protects everybody against
being treated by public officials as if they were guilty of an offence
even before such guilt is established by a competent court.50 By reason
of the presumption of innocence, the burden of proof of the charge is
on the prosecution and the accused has the benefit of the doubt. No
guilt should be presumed until a charge has been proved beyond
reasonable doubt. It is, therefore, a duty for all public authorities to
50
See Communication No. 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence
and Assistance Project v. Nigeria, paragraphs 40 -41.
43
refrain from prejudging the outcome of a trial. The African
Commission has found a violation of the right to be presumed innocent
based on a State‟s negative pre-trial publicity. In the above mentioned
case of Media Rights Agenda/Nigeria, the African Commission agreed
with the Complainant that adverse negative publicity violeted the
defendants rights to fair trial.
191.
In Law Office of Ghazi Suleiman/ Sudan51, the African Commission
again examined the right to presumption of innocence. Here, the
complainant alleged that high-ranking government officials and
investigators had publicly asserted the defendants‟ guilt. Furthermore,
it was alleged that government-orchestrated publicity stated that the
defendants were behind a coup attempt against the state. Sudan did not
conceal its bias against the defendants, showing „open hostility
towards the victims by declaring that „those responsible for the
bombings‟ will be executed‟. Because Sudan had publicly pre-judged
the defendants before a proper court had established their guilt, the
African Commission found that the State had violated the right to be
presumed innocent under Article 7(1)(b) of the African Charter.
192.
This position of the African Commission is further reinforced by
its Principles and Guidelines on the Right to a Fair Trial and Legal
Assistance in Africa, where it stated that: „Public officials shall
maintain a presumption of innocence. Public officials, including
prosecutors, may inform the public about criminal investigations or
charges, but shall not express a view as to the guilt of any suspect‟. The
African Commission agrees with the Complainant that the Dergue
officials were treated as if they were guilty of the offences with which
they were charged even before their guilt was established by a
competent court. It agrees that statements by the Respondent State at
the pre-trial and trial period clearly demonstrate the government‟s
hostility and bias towards the Victims.
193.
In its General Comment on Article 14, the Human Rights
Committee stressed the duty of all public authorities to „refrain from
prejudging the outcome of a trial‟.52 In particular, the Committee held
51
Communications 222/98 & 229/99.
The Complainant cite the seminal case of Allenet de Ribomont v. France, the applicant, a French
national, was arrested in connection with the murder of a member of parliament. That same day, at a
press conference, the Minister for the Interior and senior police officers made several conclusory
statements asserting that the applicant was an instigator in the murder. Two French television channels
reported these statements in their news programs. On 14 January 1977, the applicant was charged with
aiding and abetting intentional homicide and taken into custody. In his complaint to the European
Commission, the applicant claimed that the statements made by the Minister for the Interior violated
his right to the presumption of innocence. In its defence, the government argues that the presumption of
innocence could be infringed only by judicial authorities. The European Court held, firstly, that the
right to presumption of innocence secured by Article 6 (2) may be infringed by public authorities other
52
44
that ministers or other influential government officials may, in this
respect commit a violation of Article 14 (2) of the International
Covenant on Civil and Political Rights. In the case of excessive „media
justice‟ or the danger of impermissible influencing of lay or
professional judges by other powerful social groups, one also has to
assume that the State is under a corresponding positive duty to ensure
the presumption of innocence.53 Similarly, in the Inter-American case
of Juan Humberto Sánchez vs. Honduras54, it was held that the right of the
victim to presumption of innocence, set forth in Article 8(2) of the
American Convention, was breached, as the head of the armed forces
repeatedly referred to the victim as “nothing other than a criminal.”
194.
The African Commission agrees with the Complainants that the
existence of a growing suspicion of a person in the course of the criminal
proceeding is not per se contrary to the principle of presumption of
innocence. Neither is the fact that such mounting suspicion justifies the
adoption of safeguards--such as pre-trial incarceration--in regard to the
suspect's person. However, these must be implemented with the
„discretion and circumspection necessary to respect the presumption of
innocence‟. As stated by the Africn Commission in its „Principles and
Guidelines on the Right to a Fair Trial and Legal Assistance in Africa‟,
public officials, are allowed to inform the public about criminal
investigations or charges, but shall not express a view as to the guilt of
any suspect.55
195.
In the instant matter the Respondent State has again not
contested the veracity of the Complainant's allegation. The African
Commission is thus obliged to accept this as the facts of the case and
therefore finds the Respondent State in violation of Article 7(1)(b) of
the African Charter.
196.
Unlike the above two strands of how Article 7(b) had been violated, the
Respondent State attempted to address the allegation of excessive long
preventive detention or pre-trial imprisonment.
than a judge or court. According to the Court‟s decision, Article 6 (2) does not prevent public
authorities from discussing criminal investigations in progress, but it does require that they do so with
the discretion and circumspection necessary to respect the presumption of innocence. In the case at
hand, the Court found that the declaration of the applicant‟s guilt by some of the highest ranking police
officials in the presence and under the authority of the Minister for the Interior not only encouraged the
public to believe the applicant to be guilty, but also prejudiced the assessment of the facts by the
competent judicial authority.
53
See General Comment 13, paragraph 11 and Manfred Nowak (See n 111 above, page 254).
Series C No. 99 [2003] IACHR 2 (7 June 2003).
55
See Rule N of the Commission‟s Principles and Guidelines on the Right to a Fair Trial and Legal
Assistance in Africa.
54
45
197.
In its submission, the Respondent State informs the African
Commission that taking into consideration the volume of the cases
under review and the time it would require to adjudicate on it, the
Federal Supreme Court, as the highest organ in charge of the
administration of justice in the country, was obliged to allocate a
special Bench in the Criminal Divisions of the Federal High Court. It
says that this was done to facilitate the process of fair and speedy trial
in accordance with Article 19 (4) of the 1995 Constitution of the Federal
Democratic Republic of Ethiopia and the Criminal Procedure Code of
Ethiopia. It stated that the process of allocating dedicated benches was
pursued even within the criminal divisions of regional courts. In this
regard, perpetrators of genocide crimes were being tried in courts in
different parts of the country.
198.
The Respondent State argues that Government even provided
competent legal counsels to defendants at its own cost when they are
unable to do so themselves, all in an attempt to facilitate the trial
process as expeditiously as possible and respect the rights of the
defendants for fair and speedy trial.
199.
The Respondent State argues that after charges were filed, the
defendants were then informed of the particulars of charges brought
against them. It says that copies of the charges were given to them and
the charges read to them as prescribed by the relevant provisions of the
criminal procedure Code of Ethiopia. It says that the defendants in
exercise of their rights to challenge the charges brought against them in
accordance with Article 130 of the Criminal Procedure Code submitted
their respective preliminary objections to the charges, which amounted
to about 800 pages of preliminary objections.
200.
The Respondent State says that the Special Prosecutor was then
asked by the court to reply to the preliminary objections – and the
whole process of reviewing all the preliminary objections and replies
and the adjudication of the preliminary objections took the court about
one year, that is, from November 1995 to September 1996. The
Respondent state avers that after examining
the defendants
preliminary objections to the charges and replies of the Special
Prosecutor, the Court dismissed most of the objections during it‟s
hearing on 9 October 1994 and ordered amendments of some of the
charges.
201.
It stated that the Special Prosecutor then amended the charges
as per the court order and filed the amended charges to the court in
November 1994. It says that the charges were again read out to the
defendants by the court and they were asked to enter their plea. All of
them pleaded not guilty. It says that thereafter, the court ordered the
46
Special Prosecutor to present its documentary evidences and witnesses.
It says that the Prosecutor submitted a list of 2500 witnesses and the
hearing of witnesses started in January 1996.
202.
The Respondent State argues that defense lawyers crossexamined the witnesses presented by the Prosecutor during the
various levels examinations and it was not uncommon for a witness to
come back to the court for several weeks because of the endless crossexaminations by the defendants and their defence counsels. It says that
the court ordered the Special Prosecutor to present witnesses twice
every week on Tuesdays and Thursdays considering the length of time
it took to examine one witness as well as the large amount of evidences
to be presented, an exercise which took many years.
203.
The Respondent State avers that in the year 2000, after
presenting 726 witnesses, the Special Prosecutor, convinced that justice
would be delayed if the hearing of the large number of witnesses from
all over the country continued, applied to the court to stop the
presentation of witnesses and started presenting other documentary
evidences. It says that the court accepted the application of the Special
Prosecutor and the presentation of witnesses came to an end on June
2000. By then, the Respondsent State avers, the Special Prosecutor had
presented 2,500 documentary evidences in 24 volumes with a 192
pages of explanation. In addition, it says, films, audios, and other
technical evidences were presented against the defendants. However,
the Respondent State say, the defendants were also given the evidence
presented against them according to Article 20 (4) of the Federal
Constitution as well as the criminal Procedure Code. The presentation
of evidence was completed in December 2001 and the court set a date
to review the files and render its verdict.
204.
The Respondent State avers that after examining the charges
and the evidence vis-à-vis the statements of defence brought by the
defendants, the court issued a 587- page verdict on 21 January 2003, to
prove the charges against the defendants. In its ruling, the Respondent
State say, the court, then, called on the defendants to start their
defenses and informed them that they could make defense statements
in answer to the charges and call witnesses in their defence.
205.
It says that one-year after the court‟s ruling, on 15 December
2003, the defendents brought a list of their own three hundered
witnesses and documentary evidences. It argues that each defendant
was alllowed to give his own testimony which was exceedingly long.
The Respondent State says that 22 defendants presented 787 pages of
documentary evidences, while those that opted to invidually present
their own defence submited 1,416 pages of evidences. It says that the
47
whole process of hearing the defendants was completed on 5 January
2005, at which time the court had set a date for judgement. It avers that
to render itts judgement, the court had to cautiously review a total of
3703 pages of evidencce presented by both sides.
206.
The Respondent State argues that after examing the evidences
provided by the parties, the court had to cautiuosly review a total of
3,703 pages of evidences and written arguments. It says that on 11
December 2006, the judgment written in 792 pages found all the
defendants, except one, guilty of the charges. It says that on 11 January
2007, the court found most of the defendants guilty as charged and
sentenced them to twenty three years to life imprisonment. It also
stated that as most were disatisfied with the judgement they lodged
apppeals in March 2007.
207.
As an accused person enjoys the presumption of innocence until
proven guilty, it is only appropriate to establish whether he or she is
innocent or guilty as rapidly as possible. Proceedings should therefore
be as expeditious as possible, especially where the accused person is in
prison. The African Commission is yet to come up with a decision on
the matter. However, Articles 60 and 61 of the African Charter enjoins
the African Commission to draw inspiration from, inter alia, other
international law instruments and bodies.56. By virtue of this Article,
therefore, the Commission can draw inspiration from the decisions of
the Inter-American Commission and Court, particularly bearing in
mind the similarities within the two systems.
208.
In the case of Dayra María Levoyer Jiménez v. Ecuador, the InterAmerican Commission again emphasized a similar interpretation of
the right to be presumed innocent under Article 8 (2) of the American
Convention. It maintained that depriving Mrs. Levoyer Jiménez, the
petitioner, of her liberty for a period that exceeded one half the
maximum penalty established for the offence is a violation of the
principle of presumption of innocence established in the American
Convention. It noted that in the present case the imposition of
preventive detention for an indefinite period was tantamount to
anticipating the punishment of Mrs Jimenez. The Commission held
further that „universally accepted general principles of law prohibit
anticipating the punishment before sentencing‟. Stressing the
interrelatedness of anticipatory punishment and violation of the
presumption of innocence, the Inter-American Commission found that
Ecuador had violated Jiménez‟s right to be presumed innocent.
56
See for example Communication 211/98- Legal Resources Foundation/Zambia, paragraph 58 and
Communication 155/96- The Social and Economic Rights Action Center and the Center for Economic
and Social Rights/Nigeria paragraphs 48, 52, 57 and 63.
48
209.
The African Commission agrees with the Complainants that the
procedure adopted by the Respondent State in bringing the accused
persons to justice failed to assign blame within a reasonable length of
time. The Victims were detained for three years before their trial finally
started in 1994. Their trial dragged on for more than thirteen years
before a final judgment was reached in 2007. The pre-trail detention of
the Victims and their long continuous detention even after they were
charged essentially meant substituting pre-trial detention for their
punishment. The African Commission agrees that their long preventive
custody thus lost its purpose as an instrument to serve the interests of
sound administration of justice. The prolonged imprisonment without
conviction of the Victims for a period of about 16 years clearly violates
their right to be presumed innocent in that it was meant as a sanction
prior to the delivery of the judgment. As held by the Inter-American
Court, the deprivation of a person‟s liberty for a disproportionate time
is the same as serving a sentence in advance of the judgment. The
African Commission agrees with the Complainant that the Victims were
criminally punished by presuming their guilt even before they were
heard, in violation of the principle of presumption of innocence
established in Article 7 (1) (b) of the African Charter, Article XX of the
Universal Declaration and rule XXX of the Principles and Guidelines
on fair trial.57
The African Commission,
210.
Declares that the Respondent State has violated Articles 7(1)(b)
of the African Charter.
Alleged Violation of Article 7(1)(d) – right to have ones cause heard.
Article 7(1)(d) of the African Charter states:
(d) the right to be tried within a reasonable time by an impartial court or
tribunal.
211.
The Complainants allege that the Respondent State has violated
the former Derg offcial‟s right to a fair trial by deliberatley denying
them the right to be tried by an impartial court within a reasonable
time as enshrined in Article 7(1)(d) of the African Charter.58 It states
that the causes for the delay include the following :
a. Dismantling of the Ethiopian Court system by the Government;
b. ambitious nature of the transitional justice ethiopia pursued;
c. absence of appropriate legal checkpoints;
57
See also Waldemar Gerónimo Pinheiro and José Víctor dos Santos v. Paraguay.
58
See submissions on Merit.
49
d. joinder of cases and accused persons;
e. the charges were not clear and specific which hampered their
speedy trial;
f. other causes of delays in the Dergue trials.
212.
The African Commission will now proceed to analyse Article
7(1)(d) of the African Charter under the above rubrics to determine if a
violation has occured according to the allegation levied by the
Complainant.
Dismantling of the Ethiopian Court System by the Government
213.
In their submission on the Merits, the Complainants argue that
the Respondent State immediately upon seizing power, dismantled
almost all state institutions, including the court system, by summarily
dismissing close to 300 judges on the ground that the judiciary had
been an ally to the Dergue regime. Consequently, they state, the
Respondent State could not afford a speedy trial to the Dergue officials
due to shortage of judges. It argues that there were many instances
where cases were adjourned for lack of quorum of judges.
214.
The Respondent State did not address this allegation.
215.
The African Commission, however, wishes to restate that the
right to an impartial hearing within a reasonable time is one of the
cardinal elements of the right to fair trial. Article 7(1)(d) of the African
Charter not only provides that every person charged with a criminal
offence has the right to be tried without undue delay/within a
reasonable time by an impartial court or tribunal, but that an individual
who is accused and held in custody is entitled to have his or her case
resolved promptly.
216.
In its Principles and Guidelines on the Right to a Fair Trial and
Legal Assistance in Africa, the African Commission stated that anyone
who is arrested or detained on a criminal charge shall be brought
before a judicial officer authorized by law to exercise judicial power
and shall be entitled to trial within a reasonable time or to release. The
purpose of the review before a judicial or other authority includes to
assess whether sufficient legal reason exists for the arrest; assess
whether detention before trial is necessary; determine whether the
detainee should be released from custody, and the conditions, if any,
for such release; safeguard the well-being of the detainee; prevent
violations of the detainee‟s fundamental rights; give the detainee the
opportunity to challenge the lawfulness of his or her detention and to
secure release if the arrest or detention violates his or her rights.
50
217.
The right to an impartial hearing within a reasonable time is
further reinforced by the Commission‟s Resolution on Fair trial, which
provides that persons arrested or detained or facing criminal charges
shall be brought promptly before a judge or other officer authorized by
law to exercise judicial power and shall be entitled to trial within
reasonable time or to be released.59 The African Commission is unable
to determine whether the delays in promptly concluding the trial in the
instant case was due partly to the fact that the Respondent State
dismantled almost all state institutions, including the court system, as
the Respondent State has not specifically addressed this allegation.
218.
Accordingly, the African Commission is left with no alternative
but to apply its long-standing practice that if the government provides
no evidence, as in the instant mattter, to contradict an allegation of
human rights violation made against it, it will take it as proven, or at
the least probable or plausible.
Ambitious Nature of the Transitional Justice Ethiopia Pursued
219.
The Complainants aver that justice was delayed and therefore
denied by the very ambitious nature of the model of transitional justice
the Respondent State pursued. The Complainant allege that the SPO
had stated in February 1994 that it had tens times more evidence than
needed to successfully prosecute several of the detained and many of
the exiles for serious criminal offences.
220.
Unfortunately, the Respondent State again chose not fully
respond to this particular allegation. It commented generally that
because of the multitude of crimes committed against humanity all
over the country and the complexity involved in bringing all those
responsible for these crimes to justice, the task would become, at the
very least, daunting. In a statement that seem to support the allegation
of the Complainant, the Respondent State said that during the trial
process, while the total number of prosecution witnesses presented in
the Mengistu HaileMariam case alone was 726, those of the defendants
were 303, making the totaal number of witnesses to be heard by the
court to be 1029. It further stated that the documentary evidences
presented by both parties became heavily insurmounable when they
presented their replies and counter-replies in adddition to the origainal
charges constitutingg the several counts.
221.
Again applying its long-standing practice, that in cases of
human rights violations, the burden of proof rests on the government,
and where the government provides no evidence, as in the instant
mattter, to contradict an allegation of human rights violation made
59
See paragraph 2 (b) of ACHPR /Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial
(1992).
51
against it, the Commission will take it as proven, or at the least
probable or plausible.
Absence of Appropriate Legal Checkpoints
222.
The Complainants allege that the absence of appropriate legal
checkpoints that could force the State to diligently and expeditiously
work to investigate, charge and conduct trials also contributed to the
delay. Giving the example of the right to petition for writ of habeas
corpus was not available to many of the victims and the statute of
limitation with regard to the crimes the victims were alleged to have
committed was removed.
223.
The Respondent State did not fully address this allegation. It
argued that full judicial independence is guaranteed by domestic laws
in Ethiopia as is provided for in Article 78 of the Constitution. It
argued that in the Constitution further guarantees in Article 78(4) that
special or ad hoc courts which take judicial powers away from the
regular courts or institutions legally empowered to exercise judicial
functions and which do not follow legally prescribed procedures shall
not be established. The Constitution, the Respondent State argues, also
guarantees in Article 79(2) and (3) that the courts from any level shall
be free from interference by government or any other source and that
the judges shall exercise their functions in full independence and shall
be directed solely by law.
224. The Respondent State submit that after establishing the SPO, the
Office undertook examining detained defendants, requesting remand
in custody to complete investigation and responding to habeas corpus
demands in the relevant courts. It did not say what the outcome was.
225.
Again applying its long-standing practice, that in cases of
human rights violations, the burden of proof rests on the government,
and where the government provides no evidence, as in the instant
mattter, to contradict an allegation of human rights violation made
against it, the Commission will take it as proven, or at the least
probable or plausible.
Joinder of Cases and Accused Persons
226. The Complainants argue that though Articles 116 and 117 of the
Ethiopian Criminal Procedure Code provides for joinder of charges
and accused persons, where there is conflict of interests that may cause
serious prejudice to the accused or to the interests of justice, which is
the case with the Dergue trials, the courts should order separate trials.
52
227.
The Repondent State did not address this allegation.
228.
Applying its long-standing practice, that in cases of human
rights violations, the burden of proof rests on the government, and
where the government provides no evidence, as in the instant mattter,
to contradict an allegation of human rights violation made against it,
the Commission will take it as proven, or at the least probable or
plausible.
Charges were not Clear and Specific which Hampered their Speedy
Trial
229. The Complainants submit that the charges filed against the Dergue
Officials were not clear and specific which hampered their speedy trial.
They argue that in many respects, the indictments were not as clear
and succinct as they needed to be for the accused to understand them.
They aver that this is a defect that goes to the form of the indictment
and a violation of Articles 111 and 112 of the Ethiopian Criminal
Procedure Code.
230. The Respondent State did not fully address this allegation. It merely
stated that once the invesigation was completed, the Office of the SPO,
began to charge the accused persons before the court of law. It stated
that on 24 November 1994, the Office of the SPO brought a charge
against Colonel Mengistu Hailemariam et al at the Federal High court.
There were also thousands of charges of arbitrary arrest and illegal
confiscation of property brought against the defendants.
231.
An accused's ability to fully comprehend the charges brought
against him is fundamental to a fair trial. In the instant matter, the
African Commission will also state that in such serious mattter it is
imperative that both the accused and their counsel are able to fully
understand the charges. The Complainants have for example alleged
that the fundamental problem with the indictments was that the details
of the crimes were unclear because several concepts and legal doctrines
were lumped together in one very long sentence. The respondent state
did not challenge that allegation.
232.
In its Principles and Guidelines on the Right to Fair Trial, the
African Commission outlined the factors relevant to what constitutes
undue delay as including the complexity of the case, the conduct of the
parties, the conduct of other relevant authorities, whether an accused is
detained pending proceedings, and the interest of the person at stake
in the proceedings. However, since the Respondent State chose not to
fully address this allegation, the Commission will take the allegation as
proven, or at the least probable or plausible.
53
Other Causes of Delays in the Dergue Trials
233.
The Complainants allege that the Respondent State has also
contravene Article 7(1)(d) by the failure of the Respondent State to
decide how to handle the matter and the the failure of the prosecution
to present evidence on time was the major problem.
234.
The Complainants submit that what occurred in Ethiopia during
the trial of the Dergue officials, was prejudice and lack of activity by
the courts handling the cases and thus constituted a violation of Article
7 (1) (d) of the Charter. They argue that the Respondent State was
already aware of the facts and seriousness of the cases against the
Dergue officials but failed to act with the due diligence required and,
thereby violating their right to a speedy trial. They further argue that
the nature of the violations against the Victims entitles them to relief.
The African Commission agrees. In keeping with the spirit of Articles
7(1)(d) of the African Charter an accused person in detention is entitled
to have his case given priority and expedited by the proper authorities.
235.
The African Commision also agrees with the Complainants that
the complexity of a case should not debar domestic courts from acting
with due diligence in dealing with a case on the Merits.60 At any rate, it
is the responsibilities of States Parties to the African Charter to
organize their judiciary in such a way that the right guaranteed in
Article 7 (1) (d) of the Charter can be effectively enjoyed. In Mouvement
Burkinabe des Droits de l’Homme et des Peuples/Burkina Faso61 the African
Commission found that 15 years without a decision on the relief sought
or the fate of the people concerned or any action at all on the case
amounted to a denial of justice and a violation of the right to an
impartial trial within a reasonable time. In Annette Pagnoulle (on behalf
of Abdoulaye Mazou)/ Cameroon,62 the African Commission found the
Cameroonian Government in violation of Article 7 (1) (d) of the
Charter because Mr. Mazou did not have a judgment on his case which
was before the Supreme Court for two years and he was not given any
reason for the delay.
236.
Similarly in Alhassan Abubakar v Ghana63, the African
Commission held that detaining the Complainant for seven years
without trial before his escape “clearly violates the “reasonable time”
60
See Humberto Sánchez vs. Honduras Series C No. 99 [2003] IACHR 2 (7 June 2003) where the
Inter-American Court held, inter alia, at paragraph 130 of the decision that “even if this were a complex
case regarding the merits, the domestic courts must act with due diligence to decide on hearing of the
case”.
61
Communication No. 204/97.
62
Communication No. 39/90.
63
Communication No. 103/93.
54
standard stipulated in the Charter.” In CRP v Nigeria64, the Commission
held, inter alia, that: in criminal case, especially one in which the
accused is detained until trial, the trial must be held with all possible
speed to minimize the negative effects on the life of a person who, after
all, may be innocent. The Commission further held that since nearly
two years can pass without even charges being filed there was an
unreasonable delay and thus, the detainees rights under Article 7(1)(d)
were violated.
237.
Where there is unacceptable duration, it is the obligation of the
Respondent State to adduce specific reasons for the delay. The African
Commission agrees with the Complainants that the Respondent State
has to prove that the case is complex to justify the delay under
consideration. A mere affirmation that the delay was not excessive, as
in the instant case, is not sufficient. The African Commission further
agrees with the Complainants that even if the Respondent State did not
intend to delay the proceedings the African Commission can still
review the prejudice the delay has caused the defendants.
238.
In its Principles and Guidelines on the Right to a Fair Trial and
Legal Assistance in Africa, the African Commission observed that „no
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‟.65 In its Resolution on the Right to
Recourse and Fair Trial, the Commission again recognized the right to
a fair trial as essential for the protection of fundamental human rights
and freedoms and further recommended State Parties to the African
Charter to create awareness of the accessibility of the recourse
procedure.66
239.
The Dakar Declaration and Recommendations on the Right to a
Fair Trial in Africa adopted by the Commission at its 26th Ordinary
Session, held in Kigali, Rwanda, from 1-15 November 1999 also
reiterates that: the right to a fair trial is a fundamental right, the nonobservance of which undermines all other human rights. Therefore, the
right to a fair trial is a non-derogable right, especially as the African
Charter does not expressly allow for any derogation from the rights it
enshrines.67
64
Communication No. 153/96.
See Principle R of the Principles and Guidelines entitled Non-derogability Clause
66
See ACHPR /Res.4(XI)92: Resolution on the Right to Recourse and Fair Trial (1992). See also
Communication No. 218/98 Civil Liberties Organisation, Legal Defence Centre, Legal Defence and
Assistance Project/Nigeria.
67
This was further confirmed by the African Commission in Communication No. 218/98 Civil
Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project/Nigeria, as
65
55
240.
The realization of the right to a fair trial is dependent on the
existence of certain conditions. These include:68the right to an
impartial hearing, trial within a reasonable time and the presumption
of innocence.
The African Commission,
Declares that the Respondent State has violated the right of the Victims to be
tried within a reasonable time by an impartial court or tribunal as recognized in
Article 7(1)(d) of the African Charter.
Recommendations
In view of the above, the African Commission finds that the Respondent State is
in violation of Article 7(1)(b) and (d) of the African Charter. The African
Commission recommends that the Respondent State:
Pay adequate compensation to the Victims for violation of their right to be
presumed innocent until proved guilty by a competent court or tribunal
and to be tried within a reasonable time by an impartial court or tribunal
as recognized in Article 7(1)(b) and (d) of the African Charter.
Report on the implementation of these recommendations within three
months from the date of notification.
Done in Banjul, The Gambia during the 50th Ordinary Session of the
African Commission on Human and Peoples’ Rights, 24th October – 7th
November 2011.
above. The Commission in this case did not only label the right to a fair trial as non-derogable, but
further reiterated that it is essential for the protection of all other fundamental rights and freedoms.
68
See Robert P. Barnidge Jr, The African Commission on Human and Peoples’ Rights and the InterAmerican Commission on Human Rights: Addressing the right to an impartial hearing on detention
and trial within a reasonable time and presumption of innocence, African Human Rights Law Journal,
Volume 4 No 1 2004, page 108.
56