1
Communication 582/15 - -Mansour Aqleewan Aljalab Aqleewan (represented by
Lawyers for Justice in Libya and REDRESS) v. Libya
Summary of the Complaint
1. On 26 October 2015, the Secretariat of the African Commission on Human and
Peoples’ Rights (the Secretariat) received a complaint from Lawyers for Justice in
Libya (LFJL) and REDRESS (the Complainants) on behalf of Mansour Aqleewan
Aljalab Aqleewan (the Victim) against Libya (the Respondent State), a State Party to
the African Charter on Human and Peoples’ Rights (the African Charter) since 19 July
1986.
2. The Complainants state that the Victim is a ‘dark-skinned Libyan’ citizen, a national
of Tawergha, born in Benghazi on 19 December 1974. They state that the Victim served
in the Libyan army from 1991 to 2008, from which he was made redundant with the
rank of corporal. They allege that the Victim went to Tripoli in 2008 to work and that
he rejoined the Libyan army in January 2011 to perform administrative duties until
the uprising of 17 February 2011.
3. According to the Complainants, the Tawarghan community was persecuted by antiGaddafi militias (known as thuwar) during the Libyan civil war of 2011 and the years
that followed.
4. The Complainants report that during the armed conflict in 2011, Gaddafi's troops
established their base in the town of Tawargha from where they launched attacks
against the militias in Misrata. With NATO air support, the militias ended the siege
of Misrata in May 2011 and the pro-Gaddafi forces fled to Tawargha. In August 2011,
Gaddafi's troops lost the battle of Tawargha, leaving the town in the hands of
revolutionary militias. Once in control of the town, the militias began a campaign of
collective punishment against the Tawarghans for their alleged support for the
2
Gaddafi regime, to such an extent that on 11 and 12 August 2011, 40,000 residents of
Tawargha were forced to flee the town.1
5. The Complainants allege that as part of this repression, five members of the Victim's
family were arrested, tortured and interrogated about their loyalty to Gaddafi's
regime. They were also forced to reveal the whereabouts of their family members.
Unable to endure the torture, two young men aged 19 and 21 informed the al Swehli
brigade where the Victim lived.2
6.
The Complainants allege that in October 2011, armed men belonging to the Misrata
thuwar “Saraya Al-Swehli Infantry” (Al-Swehli militia), under the command of Mr
Faraj-al-Swehli, stormed the Victim's house in vehicles and fired shots to cries of
‘Allahu Akbar’, a victory chant.
7. The Complainants state that the Victim was arrested at his home in Tripoli with his
three cousins Abdelrahman Fawzi Aljalab, Aljalab Anwar Aljalab and Fawzi Aljalab,
who had come to live with him after being displaced from their home in Tawergha.
The Complainants allege that the Victim was arrested with his cousins without a
warrant and without being informed of the reason for their arrest, then detained and
tortured in several places of detention until May 2013, i.e. for 20 months.
8. The Complainants claim that, while in detention, they were beaten with sticks, given
electric shocks, suspended from the ceiling, subjected to threats of intimidation and
called “slaves” and “mercenaries”. They were forced to confess their loyalty to the
former regime and their involvement in the execution of revolutionaries.
9. According to the Complainants, three days later, members of the Al-Swehli militia
put them in the back of a Toyota pick-up and drove them to the outskirts of Tripoli,
calling on people to come and see the people they had captured in Tawergha, referring
to them as “slaves” and “Gaddafi's mercenaries”. The Victim and his cousins were
informed that they were going to be transferred to the Jnat Hotel in Misrata, where
they later learned that it was a cemetery with mass graves of detainees who had died
as a result of torture.
1 Testimony given on 18 February 2020 by Emad Irqayah, Director of Youth Gathering for Tawargha,
page 2.
2 Testimony of Abdallah Aljalab Aqleewan of 15 February 2020, para 5.
3
10. The Complainants claim that on the road from Tripoli to Misrata, the pick-up carrying
them stopped on the outskirts of Misrata and the armed men told them: “‘You don't
deserve to enter Misrata, you're not even worthy of animals”. The Victim and his
cousins, who were handcuffed, were forced to get out of the pick-up and were shot.
This is how the Victim's three cousins were all killed. The Victim was the only
survivor of the shooting, but with serious injuries to both legs.
11. Thinking that they had all been killed, the members of the Al-Swehli militia put the
Victim and his deceased cousins back in the truck to bury them in the graves of the
Jnat Hotel. It was at this point that the Victim began to scream in pain and the gunmen
noticed that he was alive. The Victim allegedly overheard them talking about killing
him, but an old man pleaded on his behalf and was able to get the armed men to hand
over the Victim and the bodies of the deceased. The old man buried the Victim's
cousins with the help of others and took the Victim to Thanwait Alwohda, a former
secondary school used as a detention centre for people considered loyal to Gaddafi's
regime by the revolutionary forces during the 2011 uprising.
12. The Complainants assert that the Victim was denied access to emergency medical
treatment in Misrata as doctors refused to treat detainees who were considered to be
former pro-Gaddafi fighters. His injuries were treated by other Tawergha inmates,
one of whom was a nurse. Those who detained them hit the Victim in the wounds
that were beginning to heal. Following a request from the International Committee of
the Red Cross and Médecins Sans Frontières (MSF), the guards allowed the Victim to
undergo surgery at Misrata hospital to have the bullets removed from his legs. The
Complainants state that, as a native of Tawergha, the Victim feared execution because
of the animosity towards the inhabitants of Tawergha following the 2011 uprising.
13. According to the Complainants, the al-Swehli militia then took the Victim to a Clinic
complex that was being renovated, where he was kept in isolation in a locked room for
20 days. The Victim could not use the toilet because he could not walk and was forced
to defecate inside the room, on the floor next to the bed. The Complainants allege that
a Tunisian man who worked at the facility as a maintenance worker brought the
Victim cakes and fruit juice on the fifth day of his detention, the only food or drink
the Victim received throughout his detention at the facility.
14. The Complainants allege that after 20 days, the al-Swehli militia took the Victim to
the Thanawiat al-Wehda school, used by the thuwar as a detention centre after the
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revolution. The victim was placed on a bed in a cold room reserved for the wounded,
in which there were around five or six other inmates at a time. Although there were
radiators, the militiamen never turned them on. Due to his severe injuries, the Victim
had to suffer the humiliation of being assisted by other prisoners to adapt to the
conditions for defecation. The Victim was given poor quality food, mainly bread or
pasta.
15. The Complainants further allege that two months after the beginning of her detention
at al-Wehda school, the Victim, whose wounds were seriously infected, was
transferred at MSF's request to Qasr Ahmed hospital, where doctors performed
complex operations on him and placed an external fixator on his legs. The Victim
stayed at this hospital for approximately three months, during which time he was
subjected to daily mockery and insults from the thuwar guarding the hospital, calling
him and other patients “mercenaries” and “slaves”. They claim that on one occasion,
a militiaman hit the Victim on one of his legs and on the external fixator with a rifle
butt, further damaging the already broken bones in the Victim's leg.
16. The Complainants point out that three months later, the prison authorities sent the
Victim back to the al-Wehda school. The Complainants contend that when the prison
guards saw that his injuries were being treated inside the prison, one of them struck
his injured leg with the butt of his gun, damaging the bones in his leg beyond repair.
The Victim continued to live in extreme pain and discomfort, and in fear of being
killed at any moment.
17. The Complainants maintain that in late 2012, the Victim was transferred to al-Salafia
prison in Misrata where he remained for approximately three or four months. Here
again, he resigned herself to lying on a bed and had to be helped by other inmates
sharing a room with him to defecate. The Complainants claim that prison guards
regularly tortured other prisoners and the Victim could hear their screams.
18. The Complainants allege that after approximately three or four months in al-Salafia
prison, MSF took the Victim by ambulance to al-Mutawasit hospital in Tajoura, near
Tripoli, where he remained for approximately one or two months. They indicate that
in the last two weeks at al-Mutawasit hospital, the director of al-Salafia prison, alShiekh Fathi Galoza, visited the Victim and told his that he was free to go because his
name did not appear in a database of all those who had fought for Gaddafi's regime.
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19. The Complainants state that the Victim was released in May 2013, after being detained
for approximately twenty (20) months. His family took him to Almutawasit hospital
in Tajoura, then to Camp Janzur, about 15 miles west of Tripoli, where he was treated
by volunteer doctors. The Victim's family later took him to Abu Saleem Hospital
where he stayed for four (4) months.
20. The Complainants state that the Victim is now disabled as a result of the ill treatment
he suffered and that he is currently living in the Jazur IDP Camp in Marine, near
Tripoli - the people living in the camp are from Tawergha, most of them dark-skinned
Libyans.
Articles alleged to have been violated
21. The complainants allege a violation by the Respondent State of Articles 1, 2, 4, 5, 6 and
16 of the African Charter.
Prayers:
22. The Complainants pray the African Commission on Human and Peoples’ Rights (the
Commission) to:
a) Find a violation by the Respondent State of Articles 1, 2, 4, 5, 6 and 16 of the African
Charter;
b) Consequently, order the Respondent State to:
i.
Pay the Victim USD 391,495 in compensation for material damage
and USD 100,000 in compensation for non-material damage;
ii.
Pay moral compensation of USD 20,000 to each of the Victim's
immediate family, i.e. his mother, his son and the wife;
iii.
Undertake a thorough investigation into alleged violations and hold
those responsible to account;
iv.
Make a public apology to the victims;
v.
Amend Law No. 10 of 2013 to ensure its compliance with Article 1 of
the United Nations Convention against Torture;
vi.
Repeal Article 4 of Law No. 38 of 2012 and all other provisions
offering amnesty for serious human rights violations, including
torture and extrajudicial executions.
vii.
Address the gaps contained in the 2011 Decree of the Minister of the
Interior, the Code of Criminal Procedure, Law No. 38 of 2 May 2012,
Law No. 29 of 2013 and Law No. 9 of 2014 by adopting the following
measures: ratify the Optional Protocol to the Convention against
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viii.
ix.
x.
xi.
xii.
Torture as well as the International Convention for the Protection of
All Persons from Enforced Disappearance; prioritise the reform of
the Criminal Code and the Code of Criminal Procedure to include
violations of international human rights law and humanitarian law,
including crimes under international law, and ensure that
procedures comply with international human rights standards;
ensure that adequate safeguards against torture and other illtreatment are in place, including: (a) by guaranteeing the right to
immediate and unhindered access to their family and to lawyers of
their choice, (b) by requiring that suspects be charged and brought
before a judicial authority promptly after arrest, and (c) by
guaranteeing the right to immediate medical care throughout
detention; and ensure that victims of serious human rights violations
have an effective remedy, including reparations and guarantees of
non-repetition.
Transfer all persons legally deprived of their liberty to official
prisons and put an end to all unofficial detention centres run by
state-affiliated detaining authorities and non-state actors;
Ensure the proper treatment of all persons detained or deprived of
their liberty, in particular by eliminating torture and other illtreatment, as well as access to a lawyer and to medical care, sufficient
food and water. International and national monitoring organisations
should be allowed regular, unhindered and unannounced access to
all places of detention;
Conduct full, impartial and independent investigations into all
allegations of unlawful killings while in custody, torture and illtreatment with a view to bringing those responsible to justice;
Urgently address the proliferation of armed groups, in particular
through disarmament, demobilisation and reintegration, and the
establishment of national security forces under the command and
control of the State;
Provide technical support and capacity building to the judicial
police, other law enforcement agencies and the judiciary, including
the establishment of a fair selection and recruitment process to
ensure that those suspected of involvement in alleged human rights
abuses are excluded; and provide additional specialist training,
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xiii.
xiv.
including on international minimum standards for the treatment of
prisoners;
Provide full cooperation and support to the International Criminal
Court by assisting its investigations and complying with its
decisions; and
Undertake institutional reform to ensure that the Respondent State
adopts a holistic, long-term and integrated approach to
rehabilitation and specialised services for survivors of torture and
ill-treatment, which should be available, appropriate and rapidly
accessible.
The Procedure
23. The Secretariat received the Complaint on 26 October 2015 and acknowledged receipt
on 30 October 2015.
24. The decision on seizure was adopted at the 57th Ordinary Session held from 4 to 18
November 2015 in Banjul (The Gambia).
25. The Complainants and the Respondent State were notified of the decision on seizure
on 25 November 2015. On the same date, the Secretariat requested the Complainants
to submit their arguments on admissibility within a period of two months from the
date of notification.
26. The Complainants submitted their arguments on admissibility on 1 February 2016,
which were then transmitted to the Respondent State.
27. On 4 March 2016, the Secretariat informed the two parties that, at its 19th
Extraordinary Session, held from 16 to 25 February 2016, the Commission had
deferred consideration of the Communication to a later session, pending the
Respondent State's observations on admissibility.
28. On 22 April 2016, the Secretariat informed the two parties that, at its 58 th ordinary session,
held from 6 to 20 April 2016, the Commission considered the Communication, noted that
the Respondent State's observations on admissibility were overdue and decided to grant
the latter a period of 30 days to submit its observations on admissibility.
29. The Secretariat informed both parties that the Commission had deferred
consideration of the Communication to subsequent sessions in letters sent to the
parties on 4 March, 23 June and 21 November 2016; 15 March, 13 June, 5 September
and 30 November 2017; and 12 March, 15 May, 13 September and 21 November 2018.
30. The Complainants wrote to the Secretariat on 13 February 2017 and 2 January 2018
requesting that the Commission take a decision on admissibility by default.
31. At its 25th Extraordinary Session held from 19 February to 5 March 2019, the
Commission declared the Communication admissible.
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32. The decision on admissibility was notified to the parties on 20 September 2019 and
the Complainants were asked to submit their arguments on the merits of the
Communication within two months of notification.
33. On 21 October 2019, the Complainants asked the Commission for an extension until
20 February 2020 to submit their arguments on the merits.
34. The Complainants submitted their arguments on the merits on 20 February 2020.
35. The Secretariat forwarded the Complainants' submissions on the merits to the
Respondent State on 25 November 2020 and granted it two months to submit its
observations.
36. The time limit set for the Respondent State expired without the latter submitting its
observations or requesting additional time to do so.
37. On 19 March 2024, the Secretariat informed the Respondent State that the time limit
had expired on 26 January 2021 and that the Commission would decide on the merits
on the basis of the information available to it (Rule 120 of the Rules of Procedure).
THE LAW ON ADMISSIBILITY
Complainants’ arguments on Admissibility
38. The Complainants argue that the Communication meets the admissibility
requirements of Article 56 of the African Charter.
39. They state that, in accordance with Article 56(1) of the African Charter, the authors
of the Communication are LFJL and REDRESS.
40. The Complainants maintain that the Communication is in compliance with Article
56(2) of the African Charter, since the Respondent State is a party to the African
Charter, having ratified it on 19 July 1986. They also allege serious violations of
the rights guaranteed by the African Charter, which are binding on Libya since it
became a party to the Charter.3
41. According to the Complainants, the Communication is written in respectful
language in accordance with Article 56(3).
3 The authors argue that the Respondent State acted in violation of Articles 1, 2, 4, 5, 6 and 16 of the African
Charter.
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42. They further claim that, in accordance with the provisions of Article 56(4) of the
Charter, the Communication is not based exclusively on news disseminated by
mass media. It is based on a variety of sources, including interviews conducted
by the LFJL's network of lawyers with the victim, family members, Libyan lawyers
and activists, medical reports and reports from international human rights
organisations working in Libya at the time.4
43. With regard to Article 56(5), the Complainants argue that the Victim could not
exhaust local remedies in this case. They make two points in this regard: (i) the
Respondent State's institutional framework does not provide effective remedies
for the types of violations suffered by the Victim; and (ii) the Victim's access to
justice is further hampered by being a member of the Tawerghan community.
44. The Complainants argue that the institutional framework of the Respondent State
does not provide effective remedies for the Victim. In this regard, they point out
that, in Sir Dawda K. Jawara v. The Gambia, the Commission held that, for the
purposes of Article 56 (5), a remedy must be “available, effective and sufficient”.
“A remedy is considered available if the Complainant can pursue it without
impediment, it is deemed effective if it offers a prospect of success, and it is found
sufficient if it is capable of redressing the complaint”. 5 In addition, the
Complainants assert that, in Article 19 v. Eritrea, the Commission also stated
that the law on exhaustion of local remedies presupposes: “the existence of
domestic procedures for dealing with the claim; the justiciability or otherwise,
domestically, of the subject-matter of the complaint; the existence under the
municipal legal order of provisions for redress of the type of wrong being
complained of; and available effective local remedies, that is, remedies sufficient
or capable of redressing the wrong complained of.” 6
45. According to the Complainants, the Commission has had to consider that, in the
event of a conflict, the requirement that local remedies must be exhausted cannot
be applied to the letter when it is “neither practical nor desirable for the
complainant to refer every human rights violation to the national
4 See Annex I; Annex II; Annex III - Medical report prepared by the bone surgery unit of the Benghazi
medical centre; Annex IV - Medical report prepared by the medical consultation committee; Annex V Photographs of the victim's injuries taken on 31 December 2015; and photographs, medical report and Xrays tendered with the Communication submitted on 23 October 2015.
5 Communication 147/95 and 149/96 - Sir Dawda K. Jawara v. Gambia (2000) paragraph 3.
6 Communication 275/03 – Article 19 v. Eritrea (2007) para. 47
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courts.”7 Similarly, in cases 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”, exhaustion of local remedies is not necessarily required.
8
46. The Complainants maintain that, in this case, the Victim alleges a violation of
Articles 4 and 5 of the African Charter in particular, and refer to the Commission's
established case law according to which, in such cases, an effective and sufficient
remedy must include an investigation capable of identifying those responsible for
the alleged violations. 9 According to the Complainants, this presupposes the
existence of an operational law enforcement system, as well as a judicial system
capable of investigating the alleged acts and prosecuting the perpetrators. The
Complainants note the non-existence of a functioning criminal justice system in
the Respondent State, rendering local remedies unavailable and ineffective for the
Victim in this case.
47. The Complainants maintain that the Victim was released in May 2013, at a time
when the conflict situation in the Respondent State was already beginning to lead
to the disintegration of law and order. This situation has deteriorated since his
release and the absence of a single central government deprives the Respondent
State of the ability to ensure the effective administration of justice.
48. According to the Complainants, in October 2013, the United Nations Support
Mission in Libya (UNSMIL) and the Office of the United Nations High
Commissioner for Human Rights (OHCHR) summarised the situation in the
Respondent State as follows: The armed groups effectively control the territory
and carry out government-type functions, including detention and interrogation,
10
and many of them have seen their ranks swell since the Revolution. The lack of
effective judicial oversight has been a major factor in facilitating the use of torture
7 Communications 54/91-61/91-96/93-98/93-164/976-196/97-210/98, Malawi African Association,
A m ne s ty International, Mrs Sarr Diop Union interafricaine des droits de l’Homme and RADDHO,
Collectif
8 Communication 301/05 – Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials) v.
Ethiopia (2013), para 111
9 Communication 245/02 - Zimbabwe Human Rights NGO Forum v. Zimbabwe (2006) para. 70
10 United Nations Support Mission in Libya / Office of the United Nations High Commissioner for Human
Rights,
Torture
and
Deaths
in
Detention
in
Libya,
October
2013,
http://www.ohchr.org/Documents/Countries/LY/TortureDeathsDetentionLibya.pdf , p. .4. In its 2015
report on the human rights situation in Libya, UNMIL and the OHCHR added that armed groups received
salaries paid by successive governments and that some were also officially assigned law enforcement and
police custody functions under the Ministries of Justice, Defence or Interior ( see United Nations Support
Mission in Libya/Office of the United Nations High Commissioner for Human Rights, Report on the Human
Rights Situation in Libya, 16 November 2015. http://www.refworld.org/docid/5652f3ec4.html, p.2)
11
and other ill-treatment of detainees.11 The Complainants add that the situation has
worsened and that, the United Nations High Commissioner for Human Rights
noted, in August 2014, that “the government... had lost control of most ministries
and State institutions headquartered in Tripoli, including the Ministry of Justice”.
UNMIL and OHCHR subsequently received a number of reports that the archives
of the Ministries of Justice, Defence and Interior in Tripoli had been broken into
and that a large number of files, including criminal and civil investigation files,
had been seized by fighters apparently belonging to the Libya Dawn group”.12
49. The Complainants aver that the lack of an operational judicial system in the
Respondent State was also confirmed by a statement issued on 4 December 2014
by the Respondent State's provisional Ministry of Justice that it was “deferring its
requests for the extradition of Libyans living abroad to face the Libyan justice
system, as it could not guarantee their safety and a fair trial”. The right to renew
these requests is reserved once these security problems have been resolved,
subject to a review of the situation by the relevant Libyan authorities and the
return of the entire national territory to the effective control of the Libyan interim
government.13
50. According to the Complainants, security concerns have not been addressed and,
although the Minister's statement was made in relation to Libyans living abroad,
it illustrates the Ministry's inability to provide effective remedies to victims of
human rights violations such as those in this case. The Complainants state that
this state of affairs was further confirmed in the latest report by UNMIL and the
OHCHR on the human rights situation in the Respondent State, which states that
“the collapse of the criminal justice system in certain regions of the country
reduces the avenues of protection and remedy for victims, in a context of total
impunity. Little is being done to promptly, rigorously, effectively, impartially
and independently investigate crimes, even when they are the subject of a police
report, and to bring the perpetrators to justice. UNMIL is not aware of any
11 See
UNMIL / OHCHR, Torture and Deaths
in
Detention
in
Libya, October
2013,
http://www.ohchr.org/Documents/Countries/LY/TortureDeathsDetentionLibya.pdf, pp. 2 et 6.
12 See the report of the United Nations High Commissioner for Human Rights on the human rights situation
in Libya and technical assistance and capacity-building needs, A / HRC / 28/51, 12 January 2015, para. 51
(We italicise).
13 Statement by the Minister of Justice of the Interim Government, No 2 -2014, Al-Bayda, 12 Safar 1436,
corresponding to 4 December 2014.
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convictions of members of armed groups for crimes committed since 2011.”14
51. The Complainants argue that the authorities of the Respondent State do not
prosecute human rights violations committed by armed groups, even though
they receive detailed information about these violations. In this case, for
example, the information was provided by MSF which, as part of its medical
activities in the Misrata detention centres, had treated the injuries of 115 people,
including the Victim, who had been tortured. MSF reported all incidents to the
relevant authorities in Misrata, but no action was taken. 15 The Complainants
avow that the Secretary-General of the United Nations described the situation as
follows: The continuing fighting in many parts of the country has increased the
pressure on a judicial system that has already suffered from a series of attacks on
judges and prosecutors.16
52. The Complainants submit that, in their latest report of November 2015, UNMIL
and OHCHR linked the “general breakdown of law and order”17 to the multitude
of ongoing non-international armed conflicts in the Respondent State. They
argue that in the circumstances described above, it would be unreasonable to
expect the Victim to have had access to an effective local remedy after his release
or at any time since.
53. The Complainants also maintain that local remedies are inaccessible to the victim
because of his belonging to the Tawergha community. According to the
Complainants, discrimination against Tawerghans by the authorities hinders the
Victim's access to an effective remedy as a member of this community. The
Complainants cite the Commission's jurisprudence that an exception to the
requirement of exhaustion of local remedies applies when victims cannot access
“the courts to claim protection of their rights… either because they are being
harassed, intimidated and persecuted, and due to the prevalence of violence in
the region”. 18 In such case, “any attempt by victims to exhaust local remedies
14 See UNMIL/OHCHR, Report
on
the
Human
Rights
Situation
in
Libya, 16
November 2015, http://www.refworld.org/docid/5652f3ec4.html, p. 30.
15 See Médecins Sans Frontières, Activity Report 2011,
http://www.msf.org/sites/msf.org/files/msf_activity_report_2011_lowres.pdf, pages 72-73; et
Médecins
Sans
Frontières,
International
Activity
Report 2012,
http://www.msf.org/sites/msf.org/files/msf_activity_report_2012_interactive_final.pdf, p. 61.
16 Report of the Secretary-General on the United Nations Support Mission in Libya, 26 February 2015,
http://unsmil.unmissions.org/Portals/unsmil/Documents/N1504690%20.pdf. p.57.
17 UNMIL/OHCHR, Report on the Human Rights Situation in Libya, 16 November 2015, p. 1.
18 Communication 301/05 – Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials)
v. Ethiopia (2013), para 112.
13
would be an insult to common sense, good conscience and justice”. 19
54. The Complainants state that reports by Human Rights Watch and Amnesty
International20 indicate that Tawerghans are not only discriminated against, but
are also at high risk of torture and/or unlawful execution. The Complainants
argue that, in Sir Dawda K. Jawara v. The Gambia, the Commission found that fear
for his life rendered local remedies unavailable to the Complainant: The existence
of a remedy must be sufficiently certain, not only in theory but also in practice,
failing which, it will lack the requisite accessibility and effectiveness.
Consequently, if the applicant could not take his case to court in his own country
because of a widespread fear for his life (or even that of his family), local remedies
would be considered unavailable.21
55. The Complainants further state that the situation in the Respondent State is
characterised by a climate of fear. According to them, the 2014 report by UNMIL
and the OHCHR on the human rights situation in the Respondent State refers to
the existence of “a climate of fear in which people are reluctant to speak out about
certain violations and other abuses, including detentions, abductions and acts of
torture, for fear of reprisals by various armed groups”. »22 In their latest report on
the human rights situation in the Respondent State, covering the period from 1
January to 31 October 2015, UNMIL and OHCHR found that members of some
IDP communities remained vulnerable to abduction and torture, referring
specifically to the abduction of displaced Tawerghans.23
56. The Complainants therefore argue that there is a climate of fear in the Respondent
19 Ibid.
20 In a letter dated 8 April 2012, Human Rights Watch (HRW) drew attention to crimes committed by Misratan
armed groups against Tawerghans, including executions, torture, looting, destruction of homes and forced
displacement. HRW urged the Misrata councils, without success, to take immediate action to stop the
perpetration of crimes by armed groups, including those against the Tawerghans, and to support the
prosecution of those responsible. Similarly, Amnesty International found that “detainees in Tawerghan
were among those most affected by the current lawlessness in the Respondent State and the resulting
paralysis of the judicial system”. Prosecutors have complained to Amnesty International about the
difficulties they face, particularly in dealing with cases involving individuals accused of being Gaddafi
loyalists, an accusation levelled at many Tawarghans. For example, detention authorities do not follow
up on release orders, and some prosecutors and their homes have been the target of attacks, particularly
with home-made explosives.
21 Communication 147/95 and 149/96 – Sir Dawda K. Jawara v. Gambia (2000) para. 35
22 UNSMIL/OHCHR, Overview of Violations of International Human Rights and Humanitarian Law During
the Ongoing Violence in Libya
23 See UNSMIL/OHCHR, Report on the Human Rights Situation in Libya, 16 November 2015,
http://www.refworld.org/docid/5652f3ec4.html, pp. 1 and 23-24.
14
State, compounded in part by the targeted persecution of Tawerghans accused of
being Gaddafi loyalists, thereby rendering local remedies unavailable to the
Victim.24
57. The Complainants contend that the Communication complies with Article 56(5)
of the African Charter on the grounds that it is impossible for Victim to obtain
justice in the Respondent State in respect of the alleged violations. In addition to
the fact that the Libyan authorities do not hold the perpetrators of acts of torture
committed in the Misrata detention centres accountable, the Victim remains
exposed to further abuses should he attempt to bring a complaint before the
courts in the Respondent State.
58. Under Article 56(6) of the African Charter, Communications shall be submitted
“within a reasonable period from the time local remedies are exhausted or from
the date the Commission is seized of the matter”. The logic behind the reasonable
time requirement is to discourage tardiness from prospective complainants. 25
59. The Complainants argue that, as the Charter does not specify what constitutes “a
reasonable period of time”, the Commission decides each case on its own merits.26
In their view, cases in which remedies could be or were exhausted are treated
differently from those in which remedies are deemed unavailable, ineffective or
insufficient, as in the present case. In the former cases, the Commission assesses
the reasonableness of the time taken to submit a communication “from the date
of the Complainant's notice thereof”27, taking into account the circumstances of
the case. 28 “Where there is good and compelling reason why a Complainant
could not submit his/her complaint for consideration on time, the Commission
24 Nor will the victim fall within the scope of the reparations programme outlined in the 18 December 2015
roadmap. Throughout 2015, UNMIL facilitated several rounds of discussions between members of the
Tawergha and Misrata communities, who agreed to establish a joint committee to develop a concrete plan
for the return of approximately 40,000 displaced Tawerghans (see UNSMIL / OHCHR, Report on the human
rights situation in Libya, 16 November 2015 http://www.refworld.org/docid/5652f3ec4.html24 ) on 18
December 2015, the joint committee adopted a roadmap providing for the implementation of a reparations
programme. According to the roadmap, the programme will be designed to address human rights violations
that occurred between 17 February and 11 August 2011 (see Misrata / Tawergha Joint Committee, Roadmap
document,
18
December
2015,
http:
//unsmil.unmissions.org/Portals/unsmil/Road%20Map%2018.12.15%20EN.pdf, paragraphs 15 and 16).
However, the victim was only arrested in October 2011.
25 See Communication 310/05, Darfur relief and documentation centre v. Sudan (2009), para. 79.
26 Communication 310/05, Darfur Relief and Documentation Centre v. Sudan (2009), para. 75.
27 Communication 322/2006, Tsatsu Tsikata v. Republic of Ghana (2014), para. 51.
28 See Communication 310/05, Darfur Relief and Documentation Centre v. Sudan (2009), para. 75;
Communication 288/2004, Gabriel Shumba v. Republic of Zimbabwe (2012), para.44; and
Communication 300/05, Socio Economic Rights and Accountability Project v. Nigeria (2008), para. 42.
15
may examine the complaint to ensure fairness and justice”.29
60. The Complainants consider that the communication was submitted within a
reasonable time given the circumstances of the case. They point out that the
Victim was released from Alsalafia prison at the beginning of May 201330 and that,
after his release, the security situation prevented him from returning to his home
in the Ghot Alshahal district of Tripoli. Instead, he was forced to move to the
Janzur camp for displaced persons, located at the Naval Academy near Tripoli,31
where he lived until December 2014.32
61. According to the Complainants, in his statement, the Victim described the
precarious security situation and the risk of collective punishment in the camp as
a result of belonging to the Tawergha community.33In his witness statement, Ali
Mohamed Abd Nouh, from the Al-Rahma organisation, also indicated that,
because the Victim had been injured in 2011, it was assumed that she had sustained
his injuries while fighting alongside Gaddafi's troops.34
62. The Complainants allege that in December 2014, the Victim's family had him
secretly transported in a private car from the Janzur camp for displaced persons
to Benghazi (a city itself beset by internal conflict since May 2014), following a
new attack on the camp by militia groups. 35 The complainants argue that, in
addition to the precarious security situation he is facing, the victim is in a state of
poor health and psychological distress. He continues to suffer from physical
pain and mental problems; 36 she can neither stand nor walk. She also
has problems sleeping and is at risk of having h is legs amputated due
to the severity of the infections in h is wounds. 37 The Complainants claim
that, in January 2015, the Victim had to undergo two operations on his legs and
remained in hospital in Benghazi for almost twenty days, but his injuries have not
yet healed.38
29 Communication 308/05, Michael Majuru v. Zimbabwe (2008), para. 109.
30 See annex 1.
31 Ibid.
32 Ibid.
33 Ibid.
34 See Annex II.
35 See Annex 1
36 See Annex I.
37 Ibid.
38 See Annex I.
16
63. According to the Complainants, the Communication was submitted to the
Commission in October 2015, at a time when the Victim was beginning to rebuild
his life; was seeking to obtain a new passport to be able to travel; 39 and got
married and had a marriage certificate issued by the Registry Office on 16
November 2015.40
64. The Complainants therefore consider that all reasonable efforts were made to
submit the Communication as soon as possible and that, given the precarious
security and health situation of the Victim described above, the present complaint
was submitted within a reasonable time, in accordance with Article 56 (6).
65. The Complainants aver that the Communication has not been submitted to any
other investigation or settlement mechanism as provided in Article 56(7) of the
African Charter.
66. In the light of the foregoing, the Complainants respectfully request the
Commission to declare this Communication admissible.
Respondent State’s Submissions on Admissibility
67. Although the Commission requested the Respondent State to present its
arguments and evidence on admissibility pursuant to Rule 105(2) of the
Commission’s Rules of Procedure, no reply was received. As such, the
Commission ruled that, in the absence of a response from the Respondent State, it
had to rule on the facts presented by the Complainants. 41 The Commission will
therefore proceed with the following admissibility analysis on the basis of the
Complainants' submissions on admissibility and other information provided in
the complaint.
Analysis of the Commission on Admissibility
68. The Commission points out that Article 56 of the African Charter sets out seven
requirements that any communication submitted under Article 55 of the African
Charter must meet in order to be admissible, and these requirements apply
39 See Annex VII - Police report on the loss of the Victim's identity documents.
40 See Annex VI.
Communication 25/89, 47/90, 56/91, 100/93 (1995), para 40. See also Communication 60/91,
Communication 159/1996, Communication 276/03 and Communication 292/04
41
17
interdependently and cumulatively. These conditions are applied jointly and
concurrently.42
69. With regard to the requirement set out in Article 56 (1) of the African Charter,
according to which communications shall indicate the identity of their authors,
even if the latter request anonymity, the Commission notes that the identity and
contact details of the Complainants are provided, and therefore finds that the
Communication complies with Article 56 (1) of the African Charter.
70. In accordance with Article 56 (2) of the African Charter, which stipulates that
“communications shall be considered by the Commission if they are… compatible
with the Charter of the Organization of African Unity or with the present Charter”,
this Communication is brought against Libya, which has been a party to the
African Charter since 19 July 1986. It also alleges violation of the rights enshrined
in the African Charter, in particular articles 1, 2, 4, 5, 6 and 16. The Commission
concludes that the Communication satisfies the requirement under Article 56(2) of
the African Charter.
71. With regard to Article 56 (3) of the African Charter, according to which
“Communications shall be considered by the Commission…, if they are not
written in disparaging or insulting language directed against the State concerned,
its institutions or the Organisation of African Unity (now African Union (AU))”,
the present Communication is not drafted in language that is offensive to the
Respondent State, its institutions or the AU, and for these reasons, the Commission
considers that the requirement of Article 56(3) of the African Charter has been met.
72. 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
exclusively on news disseminated by mass media, since the Complainants rely on
a number of sources, including interviews conducted by the LFJL's network of
lawyers with the Victim, members of his family, Libyan lawyers and activists,
medical reports and reports from international human rights organisations
working in Libya at the time of the events. The Commission concludes therefore
that the Communication satisfies the requirement under Article 56(2) of the
African Charter.
42 Communication 304/2005 - FIDH & Others v. Senegal (2006) ACHPR, para 38.
18
73. Article 56(5) stipulates that for communications to be considered, they shall “... be
sent after exhausting local remedies, if any, unless it is obvious to the Commission
that this procedure is unduly prolonged”. The Commission set out the principle
of exhaustion of local remedies in Jawara v Gambia 43 , in which it stated that
Complainants are only required to exhaust local remedies if they are available,
effective and sufficient. A local remedy is considered available “if the
Complainant can pursue it without impediment, it is deemed effective if it offers
a prospect of success, and it is found sufficient if it is capable of redressing the
complaint”. »
74. In this case, the Complainants rely on a two-part reasoning. Firstly, the
Complainants argue that the institutional framework of the Respondent State does
not provide effective remedies for the Victim. According to the Complainants, the
absence of a functioning law enforcement and judicial system in the Respondent
State makes local remedies unavailable and ineffective for the Victim. They
maintain that the Victim was released in May 2013, at a time when the conflict
situation in the Respondent State was already beginning to lead to the
disintegration of law and order.
75. According to the Complainants, the situation has deteriorated further since the
Victim's release and the absence of a single central government means that the
Respondent State does not have the capacity to ensure the effective administration
of justice. The Complainants argue that in the circumstances described above, it
would be unreasonable to expect the Victim to have had access to an effective local
remedy after his release or at any time since.
76. Secondly, the Complainants maintain that local remedies are inaccessible to the
Victim because of his belonging to the Tawerghan community. They contend that
discrimination against Tawerghans by the authorities further hinders the Victim's
access to an effective remedy as a member of this community. The Complainants
therefore argue that there is a climate of fear in the Respondent State, compounded
in part by the targeted persecution of Tawerghans accused of being Gaddafi
loyalists, thereby rendering local remedies unavailable to the Victim.
43 Communication 149/96 Sir Dawda K. Jawara v. Gambia
19
77. . According to the Complainants, in addition to the fact that the Libyan
authorities do not hold the perpetrators of acts of torture committed in the
Misrata detention centres accountable, the Victim remains exposed to further
abuses should he attempt to bring a complaint before the courts in the
Respondent State. In conclusion, the Complainants consider that, as a result, the
Victim is unable to obtain justice in the Respondent State for the alleged
violations.
78. In analysing the Complainants' submissions, the Commission will be able to
determine whether local remedies were in fact available and, if so, whether they
were effective and sufficient.
79. With regard to the Complainants' arguments that the institutional framework of
the Respondent State does not provide an effective remedy for the Victim, the
Commission notes that the alleged violations occurred at a time when the
international community was observing the events taking place in the Respondent
State. The political division and internal conflict in the Respondent State have been
widely reported, in particular by renowned international organisations such as the
United Nations Support Mission in Libya, but also in the reports of the Office of
the United Nations High Commissioner for Human Rights on the situation in
Libya. These reports stated, among other things, that the continuing fighting in
many parts of the country was putting great pressure on the judicial system and
that, with the collapse of the criminal justice system in some parts of the country,
victims had little access to justice.
80. In the cases of Malawi African Association, Amnesty International and Others v.
Mauritania,44 where there was a situation of conflict, the Commission considered
that the condition of exhaustion of local remedies should not be applied to the
letter where it was ‘neither practical nor desirable’ for the Complainants or victims
to refer every human rights violation to the national courts. The Commission also
ruled in Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue officials) v
Ethiopia 45 that there is no need to exhaust local remedies where “the national
Communications 54/91-61/91-96/93-98/93-164/976-196/97-210/98, Malawi African Association,
Amnesty International, Mrs Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO,
Collectif des veuves et ayants Droit, Association mauritanienne des droits de l’ Homme v. Mauritania
(2000), para. 85.
45 Communication 301/05 – Haregewoin Gebre-Sellaise & IHRDA (on behalf of former Dergue officials)
v. Ethiopia (2013), para 111.
44
20
situation of the State does not make it possible to guarantee due process for the
protection of the right or rights alleged to have been violated”.
81. The Commission is therefore of the opinion that, in light of the current situation
in the Respondent State, where the political climate and the conflict are at the root
of massive human rights violations, it would be unreasonable and impractical to
ask the Complainants or the Victim to attempt to pursue local remedies. As things
stand, even if local remedies were available, they would be unduly prolonged and
ineffective.
82. With regard to the Complainants' assertion that local remedies are not available
to the Victim because she belongs to the Tawerghan ethnic group, the Commission
also notes that there have been international reports concerning the situation of
the Tawerghan people. Widespread acts of violence, harassment, intimidation and
persecution targeting Tawerghans have been widely reported and documented by
several international organisations, including the United Nations Security
Council, the Office of the United Nations High Commissioner for Refugees, the
United Nations Support Mission in Libya and the Office of the United Nations
High Commissioner for Human Rights. In Law Office of Ghazi Suleiman v. Sudan46,
the Commission considered that if the complainant, having been threatened and
persecuted, could not have access to a remedy, it could be considered unavailable
to him. The Commission is of the opinion that, considering that the Victim is
Tawerghan and that she has allegedly been subjected to torture and intimidation,
it would be reasonable to conclude that the Victim is likely to find herself in a state
of generalized fear and cannot therefore be required to exhaust local remedies.
Furthermore, in Jawara v. Gambia, the Commission considered that, if the applicant
could not take his case to court in his own country because of a widespread fear
for his life (or even that of his family), local remedies would be considered
unavailable.
83. In line with the same reasoning set out above, because of the acts of torture
inflicted on the Victim by armed groups and the ordeal she faced following her
arbitrary arrest, the Commission does not expect the Victim to turn to the judicial
system in her country because of a widespread fear for her life.
46 Communication 222/98, 229/99- Law Office of Ghazi Suleiman v. Sudan (2003) para. 33.
21
84. In light of the above, the Commission concludes that the Communication satisfies
the requirement under Article 56(6).
85. Under Article 56(6) of the African Charter, Communications relating to human
and peoples’ rights shall be submitted “within a reasonable period from the time
local remedies are exhausted or from the date the Commission is seized of the
matter”.
86. According to the Complainants, the Communication was submitted to the
Commission in October 2015, at a time when the Victim was beginning to rebuild
her life; was seeking to obtain a new passport to be able to travel; 47 and got
married. The Complainants point out that the Victim was released from Alsalafia
prison at the beginning of May 2013 48 and that, after her release, the security
situation prevented her from returning to her home in the Ghot Alshahal district
of Tripoli. Instead, he was forced to move to the Janzur camp for displaced persons,
located at the Naval Academy near Tripoli,49 where he lived until December 2014.50
87. The Complainants claim that photos taken by the Al-Rahma organisation on 23
March 2014 show that almost a year after the Victim's release, the wounds on his
legs had still not healed. 51 They claim that in December 2014 the Victim was
secretly taken by her family to Benghazi, where he currently lives. In January
2015, the Victim had to undergo two operations on her legs and remained in
hospital in Benghazi for almost twenty days, 52 but her injuries have not yet
healed.
88. The Complainants argue that, in addition to the precarious security situation he
faced in the Janzur camp for displaced persons and which he continues to
experience in Benghazi, the Victim is also in a state of poor health and
psychological distress. According to them, after her release from Alsalafia prison
in May 2013, the Victim had to continue to seek medical treatment on several
occasions, as evidenced by the medical reports attached to the complaint. 53
47 See Annex VII - Police report on the loss of the Victim's identity documents.
48 See Annex 1
49 Ibid.
50 Ibid.
51 See Annex II - Photographs of the injuries inflicted on the complainant taken on 23 March 2014 by a
member of the Al-Rahma organisation in the submissions of 23 October 2015.
52 See Annex 1
53 See Annex III; and Annex IV. See also Annex III - Medical report showing evidence of a bullet on the
22
Consequently, according to the Complainants, every reasonable effort was made
to submit the Communication as soon as possible, given the fragile nature of the
victim's safety and medical situation.
89. The Commission has established in its jurisprudence that the African Charter
does not indicate what constitutes a reasonable period of time, nor does it define
a reasonable period of time. Thus, the Commission determines a “reasonable
period" on a case-by-case basis according to the circumstances of the case.
90. In Thomas S. Masuku v. Swaziland, the Commission held that “one (1) year was a
reasonable period in the circumstances of the case”;54 in Centre for Minority Rights
Development (CEMIRIDE) and Truth to be Told Network v. Kenya55, it held that “ten
(10) months was also reasonable in the circumstances of the case”; and in Gabriel
Shumba v. Republic of Zimbabwe56, it held that 16 months was reasonable. On the
other hand, the Commission stated in Michael Majuru v. Zimbabwe that 22 months
was clearly beyond a reasonable man's understanding of reasonable period of
time.
91. Nevertheless, the Commission in Darfur Relief and Documentation Centre v Sudan
stated that where there is a valid and compelling reason why a complainant has
not submitted his complaint to the Commission for consideration, the
Commission has a responsibility, in the interests of fairness and justice, to give
that complainant the opportunity to be heard.
92. In this case, the Victim was released in May 2013 and the Complainants took
almost two years to submit the Communication to the Commission. However,
due to the political situation and conflicts in the Respondent State at the time of
the events to date, the Commission believes it is appropriate to examine the
chronology of events following the Victim's release, to determine whether the
complaint was submitted within a reasonable period of time.
93. Based on the evidence on file, after being released in May 2013, the Victim was
complainant's body prepared on
3 May 2012 at the emergency unit of Abu Saleem Hospital; and Annex IV - X-rays taken at the emergency
unit of Abu Saleem Hospital , submissions of 23 October 2015.
54 Communication 444/13- Justice Thomas S. Masuku v. Swaziland, para 76.
55 Communication 332/06-Centre for Minority Rights Development (CEMIRIDE) and Truth to be Told
Network v. Kenya, para 103.
56 Communication 288/2004 – Gabriel Shumba and Others v. Republic of Zimbabwe
23
unable to return to his home and instead went to live in the Janzur camp for
displaced persons, where he was able to receive basic medical care. In December
2014, he was secretly transported by his family in a private car to Benghazi, where
he currently lives. The Victim underwent two operations in January 2015 and
remained in hospital for almost twenty days.
94. In light of the above facts, the Commission considers that, between his release in
May 2013 and 2015, the Victim was not only in a situation of anxiety, insecurity
and displacement, but was also struggling with serious health problems. This
state of affairs is corroborated by the Commission's findings as described above,
as well as the medical report and the photographs provided in the file by the
Complainants.
95. Accordingly, taking due account of the circumstances of the case and in the
interests of fairness and justice, the Commission considers that every reasonable
effort has been made to present the Communication as soon as possible and
therefore considers that it has been submitted within a reasonable period of time.
As such, the Commission finds that the Communication meets the requirement
under Article 56(6).
96. Regarding Article 56(7) of the Charter, the Commission finds no indication that
the facts and complaints set out in this Communication have already been brought
before or settled by another international body. Consequently, the Commission
concludes that the Communication complies with the provisions of Article 56(7)
of the Charter.
Decision of the Commission on Admissibility
97. For the above reasons, the African Commission on Human and Peoples’ Rights
declares the Communication admissible in accordance with the provisions of
Article 56 of the African Charter.
MERITS
Complainants’ submissions on the Merits
98. The complainants allege a violation by the Respondent State of Articles 1, 2, 4, 5, 6 and
16 of the African Charter.
Alleged violation of the right to non-discrimination (Article 2)
24
99. The Complainants allege that the arbitrary arrest, detention, torture and ill-treatment
suffered by the Victim were based entirely on his skin colour and ethnic origin, and
the resulting inferences about his political beliefs and the widespread discriminatory
attitudes in the Respondent State towards Tawarghans since 2011. They maintain that
the allegations made against the Victim were unfounded, as evidenced by his release
without charge some 20 months after his arrest. They allege that the discriminatory
attitudes of his abductors, including those from Qasr Ahmed Hospital, were
highlighted by their frequent use of derogatory terms against the Victim, calling her
a ‘slave’, a ‘mercenary’ and a ‘mercenary of Gaddafi's regime’, as well as by their
attempts to force him to confess her loyalty to Gaddafi's regime and to having
committed crimes in Misrata while they were torturing him.
100. The Complainants cite the Human Rights Watch report which states that the
Libyan judicial authorities have prosecuted crimes attributed to the Tawarghans,
including murder and illegal possession of weapons during the 2011 revolution, but
that no members of the militia have been prosecuted for forced displacement of the
Tawarghans or for other serious violations against them.57
101. The Complainants also allege that this discrimination prompted the Respondent
State's violations of Articles 4, 5, 6 and 16, and overlaps with its violations under
Article 1 of the African Charter.
Alleged violation of the right to life (article 4)
102. The complaint alleges that the Victim was tortured by the al-Swehli militia on
several occasions in various locations, was shot several times in the legs, was told that
he would be killed slowly, almost entirely deprived of food or drink for two separate
periods of three and 20 days, and for long periods resigned himself to his imminent
death. According to the Complainants, the degree and type of force and negligence
applied by the Respondent State indicate a clear intention to deprive the Victim of life
in the strictest sense.
103. They also allege that the degrading and inhuman treatment was intended to
deprive him of his right to the enjoyment of his dignity. The Complainants assert that
57 Human Rights Watch, Libya: Displaced Population Can’t Go Home, 24 January 2019, available at:
https://www.hrw.org/news/2019/01/24/libya-displaced-population-cant-go-home ; and Human
Rights Watch, Libya: Ensure Safe Return of Displaced Tawarghans, 20 June 2017, available at
https://www.refworld.org/docid/5948dff64.html
25
the Victim suffered serious and permanent physical and psychological injuries as a
result of this ordeal, rendering him incapable of pursuing his previous activities.
104. The Complainants further allege that the Respondent State failed to investigate the
incidents that led to the injuries sustained and that, as a result of the discriminatory
treatment inflicted on the Victim on the basis of his skin colour and ethnic origin, the
Respondent State failed to comply with its obligations to investigate the actions of the
al-Swehli militia or to provide an effective remedy to the Victim. They conclude that
the Respondent State failed to establish a law enforcement mechanism that effectively
investigates or punishes violations of criminal law and failed to protect his right to
life.
Alleged violation of the prohibition of torture and ill-treatment (Article 5)
105. The Complainants allege that the treatment inflicted on the Victim by the
Respondent State involved the deliberate infliction of severe pain and suffering
both through: a) deliberate acts of torture; and b) detention in inhuman conditions
with the aim of inflicting punishment, intimidation, coercion and discrimination.
106. The Complainants claim that the Victim was subjected to the following deliberate
acts of torture: handcuffing, insults calling him; a slave and mercenary of Gaddafi,
blows with rifle butts on his legs and wounds, exposure to the public in the back of a
vehicle in Misrata, being shot in the left leg, being tied to a car by a rope and pulled
through the prison yard, burns to his body with an iron plate, death threats, electric
shocks, isolation for two separate periods of three and 20 days in rooms without
sanitary facilities in which he was forced to defecate with the assistance of fellow
inmates; subjected to extreme cold, hunger and thirst, deprivation of food and
drinking water; held incommunicado for 20 months, denied health care despite his
injuries, and deprived of adequate toilet facilities.
107.
The Complainants allege that the Victim was tortured for a number of reasons:
a) To extract a confession from him for crimes he did not commit;
b) Collective punishment of Tawarghans presumed loyal to Gaddafi's regime;
c) Intimidation: Agents of the Respondent State frequently referred to the Victim
as a ‘slave’ and ‘Gaddafi's mercenary’, and she regularly received death threats;
d) Discrimination: the arrest, detention, torture and ill-treatment of the Victim
were based entirely on his Tawarghan ancestry.
26
108. The Complainants allege that the methods of torture to which the Victim was
subjected, used alone or in combination, resulted in the deliberate infliction of severe
mental and physical pain and suffering.
Alleged violation of the right to personal liberty and protection against arbitrary arrest
and detention (Article 6)
109. The Complainants allege that at the time of the Victim's arrest, the Tawarghans
were subjected to arbitrary arrest and torture in a widespread and systematic manner,
in pursuance of a regime of collective punishment against the Tawarghan community
for the crimes they allegedly committed during the siege of Misrata and their alleged
allegiance to Gaddafi's regime. They allege that the victim's case is part of this pattern
of arbitrary arrests and detentions. They argue that the manner in which the Victim
was arrested by members of the al-Swehli militia, the nature of the “interrogation”
that followed, characterised by beatings and insults, suggest that the apparent
purpose of the arrest and detention was to punish the Victim for having allegedly
committed various offences during the conflict.
110. The Complainants maintain that the Victim was told in general terms that he was
suspected of being loyal to the former Gaddafi regime and of having killed, raped and
pillaged revolutionaries during the conflict. They claim that the agents of the
Respondent State did not present him with an arrest warrant at the time of his arrest
and that he was not officially informed of the reasons for his arrest and was never
charged with a recognisable criminal offence under the Criminal Code during the 20
months of his detention. In addition, the Complainants affirm that the Victim was
held incommunicado for the entire duration of his detention and was not brought
before the competent judicial authorities to challenge the lawfulness of his detention.
The Complainants claim that he was eventually released without charge due to lack
of evidence.
Alleged violation of the right to health (Article 16)
111. The Complainants point out that the Victim was subjected to severe torture by
agents of the Respondent State, which caused him significant physical and mental
damage, in some cases permanent. In addition, the Complainants allege that the
Victim was subjected to starvation and extreme thirst and was not provided with
adequate sanitation or hygiene facilities during most of his detention. The
Complainants allege that he was also denied access to emergency medical care when
27
necessary, and that it was only after several months, during which worms infected his
bullet wounds, and after the intervention of a third party, that the Victim was
admitted to hospital for surgery to remove the bullets from his legs.
112. The Complainants further allege that, despite being aware of his current situation,
the Respondent State has taken no steps to address the Victim's medical needs, which
constitutes a continuing violation of his right to health.
Alleged violation of the Respondent State's obligation to recognise and give effect to
the rights, duties and freedoms enshrined in the African Charter (Article 1)
113. The Complainants allege that the Respondent State has failed to fulfil its
obligations under Article 1 of the Charter, namely the obligation to respect and protect
human rights, and the obligation to prevent, investigate and remedy human rights
violations.
114. The Complainants contend that the Respondent State, through the actions of
members of the al-Swehli militia acting as agents of the Respondent State, failed to
respect the Victim's right to protection from discrimination, his right to life, his right
to protection from torture and inhuman treatment, his right to liberty, and his right to
health.
115. The Complaint alleges that the Respondent State not only directly violated the
Victim's rights, but also failed to protect the Victim and the Tawarghan community
from such human rights violations during and after the 2011 conflict, perpetrated by
both State and non-State actors. The Complainants maintain that this failure to protect
occurred despite the Respondent State's knowledge and acknowledgement of the
widespread nature of violations several months before they were perpetrated.
116. In this respect, the Complainants cite several reports alerting the Libyan
authorities to the violations. In May 2011, Amnesty International submitted a
memorandum to officials of the National Transitional Council (NTC), including
President Mostafa Abdeljalil, and met with them to express its concerns about
abductions, unlawful killings, torture and arbitrary detention of opposition fighters
and supporters of the “17 February revolution”.58
58 Amnesty International, The battle for Libya Killing, disappearances and torture, September 2011, page
70, available at https://www.amnesty.org/download/Documents/32000/mde190252011en.pdf
28
117. In early and mid-September 2011, Amnesty International raised concerns in
meetings and through written notes about arbitrary detention and torture or other illtreatment with senior NTC officials, including Acting Deputy Prime Minister and
Minister of Oil and Finance Ali Tarhouni, Acting Minister of Justice Mohamed al
Allagi, Acting Minister of Interior Ahmed Darrat, President of the Tripoli Military
Council Abdelhakim Belhaj and Head of the Supreme Security Council Abdelmajid
Saif al Nasr.59 In September and October 2011, Amnesty International published two
reports describing abuses perpetrated by the thuwar, including torture.60
118. On 9 January 2012, MSF sent an official letter to the Misrata Military Council, the
Misrata Security Committee, the National Army Security Service and the Misrata
Local Civil Council, demanding an immediate halt to all forms of ill-treatment and
torture of detainees.61 On 26 January 2012, MSF suspended its work in a clinic at a
detention centre in Misrata, after realising that patients were being brought to MSF
for medical care between interrogation sessions, solely so that they would be fit for
further interrogation.62
119. In March 2012, the International Commission of Inquiry on Libya (ICIL) published
a report which, inter alia, concluded that the torture and murder of Tawarghans by
the thuwar of Misrata could also, given the widespread and systematic manner in
which they occurred, constitute a crime against humanity and that the facts indicated
that crimes against humanity had been committed.63
59 Amnesty International, Detention Abuses Staining the New Libya, October 2011, page 11, available at:
https://www.amnesty.org/download/Documents/32000/mde190362011en.pdf
60 bid. page 5.
61 MSF, Libya: Detainees Tortured and Denied Medical Care, 26 January 2012, available at:
https://www.doctorswithoutborders.org/what-we-do/news-stories/news/libya-detainees-torturedand-denied-medical-care. The press release also details previous attempts by MSF to notify the
Respondent including informing the National Army Security Service that a number of patients needed to
be transferred to hospitals for urgent and specialised care. MSF reported that “[a]ll but one of the
detainees were again deprived of essential medical care and were subjected to renewed interrogations
and torture outside the detention centres”.
62 Militias Threaten Hopes for New Libya, page 5. A press release on the suspension is available at
https://www.msf.org/libya-detainees-tortured-and-denied-medical-care
63 Office of the United Nations High Commissioner for Human Rights (the “OHCHR”), Report of the
International Commission of Inquiry on Libya, 8 March 2012 (A/HRC/19/68), 8 March 2012, para 49 and
64, available at:
https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A.HRC.19.68.p
df
29
120. On 8 April 2012, Human Rights Watch (HRW) drew attention to the crimes
committed by Misrata armed groups against the Tawarghans, namely murder, torture,
looting, destruction of homes and forced displacement. HRW urged the Misrata
Councils to take immediate action to put an end to the crimes committed by armed
groups, including those committed against the Tawarghans, and to prosecute the
perpetrators.64
121. The Complainants allege that the Respondent State took no steps to investigate the
violations committed against the Victim, reflecting the Respondent State's apparent
apathy towards survivors of similar violations, and a pattern of abuse through
widespread inaction. According to the Complainants, the integration of the thuwar
into the Respondent State's judicial police 65 has led to the emergence of an
impenetrable culture of impunity in which violations committed by the thuwar during
and after the 2011 conflict have not been effectively investigated, even in theory, or
redressed.
122. With regard to the failure to ensure redress for the violations, the Complainants
allege that the Respondent State has made little or no effort to provide adequate
redress and remedies to the survivors of the violations, including the Victim. In
addition, when remedies were available to survivors of violations, the Respondent
State repeatedly showed its reluctance to enforce them. For instance, the Respondent
State failed to address a significant backlog of “conflict-related” detainees awaiting
trial in 2011.66 The trials that have taken place have raised concerns about violations
of fair trial standards. Victims are still unable to obtain effective reparation for these
wrongs.
123. The Complainants maintain that the legal framework of the Respondent State is
insufficient to adequately guarantee the right not to be subjected to torture. They
argue that the 1954 Criminal Code and Law No. 10 of 2013 on the prohibition of
64 Human Rights Watch, Libya: Letter to Misrata Councils, 8 April 2012, available at:
https://www.hrw.org/news/2012/04/08/libya-letter-misrata-councils
65 UNHCR, Investigation by the Office of the United Nations High Commissioner for Human Rights on
Libya: Detailed Findings, 15 February 2016, at para. 52, available at:
https://www.ohchr.org/Documents/Countries/LY/A_HRC_31_CRP_3.pdf ; UNHCR, Abuse Behind
Bars: Arbitrary and unlawful detention in Libya, April 2018, p. 8, available at:
https://www.ohchr.org/Documents/Countries/LY/AbuseBehindBarsArbitraryUnlawful_EN.pdf
66 Arbitrary and unlawful detention in Libya, April 2018, p. 8, available at:
https://www.ohchr.org/Documents/Countries/LY/AbuseBehindBarsArbitraryUnlawful_EN.pdf
30
torture,67 enacted by the National Transitional Council in April 2013, limit the scope
of the prohibition of torture to places of detention. They allege that these two pieces
of legislation do not refer to the objectives of torture as set out in Article 1 of the
Convention against Torture, including (i) obtaining information, (ii) punishing an act
that the victim or a third party has committed or is suspected of having committed,
(iii) intimidating or coercing, or (iv) for any reason based on discrimination of any
kind. They also contend that Law No. 38 of 2012 on certain procedures for the
transitional period, specifically establishing the procedures for implementing Law
No. 35 (2012) on immunity,68 stipulates in Article 4 that no sanctions will be imposed
for actions carried out by military, civilian or rebel forces with the aim of ensuring the
success or protection of the Revolution of 17 February. The Complainants conclude
that, in light of the persistent and widespread impunity that currently characterises
the Libyan judicial system, it is possible that serious human rights violations, such as
torture, are considered to be actions “rendered necessary by the revolution of 17
February” and therefore go unpunished.
Alleged violation of the right to prompt, effective and impartial investigation of
allegations of torture (Article 1, read in conjunction with Article 5)
124. According to the Complainants, the Respondent State has not taken any
investigative measures since the violations began to occur in October 2011, despite the
fact that the events occurred in the context of crimes against humanity.
125. The Complainants claim that a significant delay in initiating an investigation
violates the obligation to investigate allegations of torture promptly, effectively and
impartially, as upheld by human rights treaty bodies and courts in their jurisprudence
concerning cases of delay in torture investigations.69
67 Law No. 10 of 2013 gave a broader definition of torture and imposed harsher penalties, including life
imprisonment in certain cases, and stricter penalties for serious injury or death.
68 Law No. 38 of 2012 grants immunity for military and security acts committed by revolutionaries, but
explicitly excludes serious crimes such as torture.
69 See for example, UNHRC, Encarnacion Blanco Abda v. Spain, Communication No. 59/1996, at para.
8.2; Bati and
others v Turkey, at para. 136; see further REDRESS, ‘Waiting for Justice - The Politics of Delay in the
Administration of Justice in Torture Cases: Practice, Standards and Responses’, May 2008, available at:
http://www.redress.org/downloads/publications/WAITING_FOR_JUSTICE_Mar%20O8%20Fin%20_2
_.pdf
31
126. The Complainants argue that the Victim's experience is indicative of the climate of
impunity for the thuwar in the Respondent State. They maintain that the Respondent
State has failed to carry out effective investigations into serious human rights
violations, including torture and deaths in custody. They point out that in April 2018,
UNMIL stated that no commander or member of armed groups has been held
accountable for human rights violations or abuses committed since the 2011 armed
conflict, further emboldening them and reinforcing their sense of impunity.70
Alleged violation of the right to an effective remedy (Article 1, read in conjunction
with Articles 5 and 6)
127. According to the Complainants, the Respondent State has failed in its positive
obligation to provide effective remedies, as required by Article 1 read in conjunction
with Articles 5 and 6 of the African Charter. The Complainants claim that the Victim
was unable to effectively seek redress for his grievances due to a lack of access to legal
remedies. They also claim that, due to the inadequate legal framework, there is no
effective procedure for seeking redress for the violation of his rights.
128. The Complainants request the Commission to declare that it is the Respondent
State's duty to take all necessary measures to ensure that effective remedies and
adequate reparation are provided to the Victim for the aforementioned violations.
This includes: (i) compensation; (ii) a prompt and impartial investigation; (iii) an
apology; (iv) amendments to legislation; and (v) institutional and practical reforms.
They contend that limited resources cannot justify the Respondent State's failure to
provide full reparation.71
The Commission's analysis on merits
129. The Respondent State did not respond to the Secretariat's requests for observations
on the merits. Pursuant to Rule 120(2) of the Commission's Rules of Procedure, "if no
observations on the merits have been received from the Respondent State within the
time limit set, the Commission shall take a decision by default on the basis of the
70 UNHCR, Investigation by the Office of the United Nations High Commissioner for Human Rights on
Libya: Detailed Findings, 15 February 2016, at para. 52, available at:
https://www.ohchr.org/Documents/Countries/LY/A_HRC_31_CRP_3.pdf ; UNHCR, Abuse Behind
Bars: Arbitrary and unlawful detention in Libya, April 2018, p. 3, available at:
https://www.ohchr.org/Documents/Countries/LY/AbuseBehindBarsArbitraryUnlawful_EN.pdf
71 ACHPR, General Comment No. 4, para. 34.
32
information available to it", and on the basis of the findings made in the proceedings,
the Commission so decides on the merits of this Communication.
130. The violations alleged in this communication occurred for the most part while the
victim was in detention. They include allegations of racial discrimination, torture and
other cruel, inhuman and degrading treatment, arbitrary detention and denial or
delay of medical care.
131. In these circumstances, the principle that the burden of proof lies with the
applicant is not strictly applicable. For example, in several of its decisions, the African
Commission has held that facts which are not disputed by the respondent State must
be taken as established.72 The African Court on Human and Peoples' Rights agreed in
the case of Mugesera v Rwanda .73 The African Committee of Experts on the Rights and
Welfare of the Child also presumes the truth of the complainant's allegation unless
the responding State proves otherwise. 74 The African Court has held that in
circumstances where the applicants are in detention and are unable to prove their
allegations because the means of verifying them are likely to be under the control of
the State, the burden of proof is reversed provided the applicants make out a prima
facie case of violation.75 The European Court of Human Rights has also held that the
burden of proof lies with the authorities in respect of events that occur while an
individual is under the control of the police or a similar authority.76 The Commission
agrees with the African Court and the European Court on the reversal of the burden
of proof when the evidence points to a is under the control of the Respondent State.
132. It is in the light of these observations that the Complainants' allegations will be
examined.
72 See for example Communications 25/89, 47/90, 56/91, 100/93; Free Legal Assistance Group et al. v.
Zaire; Communication 204/97- Mouvement Burkinabé des droits de l'homme et des peuples v. Burkina Faso
(ACHPR 2001), para 42; Communication 348/07 - Collectif des familles de disparu(e)s au nom de la
famille Benidir v. Algérie, paras 108 and 171.
73 Application 012/2017- Leon Mugesera v Rwanda (merits and reparation), para 89.
74 CAEDBE, Communication No. 007/Com/003/2015 Minority Rights Group International and SOS-
Esclaves on behalf of Said Ould Salem and Yarg Ould Salem, para 46.
75 Application 003/2015- Kennedy Owino Onyachi and Charles John Mwanini Njoka v. Tanzania (merits),
para 142; Application 001/2015, Armand Guéhi v. United Republic of Tanzania (merits and reparations),
para 132.
76 Case of Bouyid v. Belgium [GC] (23380/09, 28 September 2015, information note 188).
33
Alleged violation of Article 2 of the Charter
133. Article 2 of the African Charter states that " Every individual shall be entitled to
the enjoyment of the rights and freedoms recognized and guaranteed in the present
Charter without distinction of any kind such as race, ethnic group, colour, sex,
language, religion, political or any other opinion, national and social origin, fortune,
birth or other status".
134. Non-discrimination is a fundamental pillar of guaranteeing equal treatment and
opportunities for all persons, regardless of their race, ethnicity, origin, gender,
religion, disability or any other characteristic.77
135. In the Communication Zimbabwe Lawyers for Human Rights & Others v. Zimbabwe,
the Commission held that discrimination includes any action intended to
differentiate, exclude, limit or favour individuals on the basis of race, colour or other
status. Such discriminatory acts are deemed to have the purpose or effect of nullifying
or impairing the recognition, enjoyment or exercise by all persons, on an equal basis,
of all rights and freedoms.78 By including a variety of grounds, such as race, colour
and other status, the definition recognizes the multifaceted nature of discrimination
and the different characteristics that may serve as a basis for discriminatory acts.
136. The Commission's definition also recognizes that discrimination can take a variety
of forms, including acts intended to make a distinction, exclusion, restriction or
preference. This broad understanding ensures that all forms of discrimination,
regardless of their specific nature, are covered by this definition. In doing so, the
Commission recognizes the complexity of discrimination and the need to address it
in a comprehensive manner.
137. Discrimination can be direct or indirect. Direct discrimination is a distinction
between individuals or situations on the basis of one or more unlawful criteria. 79
77 Communication 443/13 - Safia Ishaq Mohammed Issa (represented by The REDRESS Trust) v Republic
of Sudan, para 161; African Court on Human and Peoples' Rights, Application 006/2012 - African
Commission on Human and Peoples' Rights v Kenya, Judgment of 26 May 2017 para 138.
78 Communication 294/04 - ZLHR & IHRDA v/ Zimbabwe, para 91.
79 African Court on Human and Peoples' Rights, Application APDH v Côte d'Ivoire, merits, 2006, para 147.
34
Where discrimination is indirect, the key indicator is the differential impact on groups
or individuals of certain measures or actions. 80
138. The Complainants allege that the arbitrary detention, torture and ill-treatment
suffered by the Victim and the failure to prosecute his assailants were based entirely
on his skin colour and ethnic origin (Tawarghans), and the resulting inferences about
his political beliefs and the widespread discriminatory attitudes in the Respondent
State towards Tawarghans since 2011. The acts and omissions alleged by the
Complainants, if proven, would constitute direct discrimination on the basis of the
Victim's ethnicity.
139. In Kenneth Good v. Botswana, 81 the Commission established three essential
cumulative criteria for assessing cases of direct discrimination: a violation of the
principle of non-discrimination occurs when: a) similar cases are treated differently;
b) there is no objective and reasonable justification for a difference in treatment; and
c) there is no proportionality between the aim pursued and the means employed to
achieve it.
140. The Commission will examine whether the three cumulative criteria for the
assessment of discrimination are met in the present case. As regards the first criterion,
which relates to similar situations, the Complainants report that the militiamen's
arrests were directed exclusively against Tawarghans. During his arrest and
detention, his captors frequently used derogatory terms against the Victim, calling
him a "slave", a "mercenary" and a "mercenary of the Gaddafi regime", and tortured
him in an attempt to force him to confess his loyalty to the Gaddafi regime and to
having committed crimes in Misrata.
141. The Complainants allege that the treatment of the Victim is part of a pattern of
widespread repression and discrimination against Tawarghans. They cite the
following reports in support of this allegation:
- The HRW report, which states that the Libyan judicial authorities have prosecuted
crimes attributed to the Tawarghan, including murder and the illegal possession
of weapons during the 2011 revolution, but that no member of the militias has
80 Cour africaine des droits de l'homme et des peules, Jebra Kambole c. République-Unie de Tanzanie,
requête n° 018/2018, jugement du 15 juillet 2020, Cour ou Commission ???), page 68; CEDR (Convention
pour l'élimination de la discrimination raciale), article 1). Indirect discrimination concerns "measures which
are not discriminatory on their face but which are discriminatory in fact and effect".
81 Communication 313/05 - Kenneth Good v Republic of Botswana (2010) ACHPR, para 219.
35
-
-
-
-
been prosecuted for the forced displacement of the Tawarghan or for other serious
abuses against them.82
HRW's report that widespread violations committed by militias against
Tawarghans since 15 February 2011, including prolonged arbitrary detention,
torture and other ill-treatment, forced displacement and unlawful killings,
have gone largely unpunished. 83
The March 2012 report of the International Commission of Inquiry on Libya (ICIL),
which concluded that the torture and murder of Tawarghans by the Misrata
Thuwar may also constitute crimes against humanity, given the widespread and
systematic nature of the killings, and that the facts indicate that crimes against
humanity have been committed.84
On 8 April 2012, HRW highlighted the crimes committed by armed groups from
Misrata against the Tawarghan, namely murder, torture, looting, destruction of
homes and forced displacement.85
In their report on the human rights situation in the Respondent State, covering the
period from 1 January to 31 October 2015, UNMIL and OHCHR noted that
members of some IDP communities remained vulnerable to abduction and torture,
referring specifically to the abduction of displaced men from Tawargha.86
142. The testimony of two witnesses also confirms the widespread discrimination
against the Tawarghan. The first witness, who claims to have been detained and
tortured along with the victim's three cousins and many others, states that the
revolutionaries considered all Tawarghans to be loyal to Gaddafi and to have fought
82 Human Rights Watch, Libya: Displaced Population Can't Go Home, 24 January 2019, available at:
https://www.hrw.org/news/2019/01/24/libya-displaced-population-cant-go-home ; and Human
Rights Watch, Libya: Ensure Safe Return of Displaced Tawarghans, 20 June 2017, available at
https://www.refworld.org/docid/5948dff64.html
83 Human Rights Watch, Libya: Displaced Population Can't Go Home, 24 January 2019, available at:
https://www.hrw.org/news/2019/01/24/libya-displaced-population-cant-go-home; and Human Rights
Watch, Libya: Ensure Safe Return of Displaced Tawarghans, 20 June 2017, available at
https://www.refworld.org/docid/5948dff64.html
84 Office of the United Nations High Commissioner for Human Rights (the "OHCHR"), Report of the
International
Commission of Inquiry on Libya, 8 March 2012 (A/HRC/19/68), 8 March 2012, at para 49, available at:
https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A.HRC.19.68.p
df
85 Human Rights Watch, Libya: Letter to Misrata Councils, 8 April 2012, available at:
https://www.hrw.org/news/2012/04/08/libya-letter-misrata-councils
86 UNSMIL/OHCHR, Report on the Human Rights Situation in Libya, 16 November 2015,
http://www.refworld.org/docid/5652f3ec4.html , pp. 1 and 23 to 24.
36
in his forces. 87 The second witness, the executive director of Youth Gathering for
Tawarghans, said that since the fall of Tawarghans to the revolutionaries in August
2011, the State-affiliated and State-backed revolutionary militias have committed
widespread and systematic violations against the Tawarghan. The Youth Gathering for
Tawargha has documented 320 extrajudicial executions of Tawarghans and 1,200
Tawarghan citizens arbitrarily detained, disappeared or tortured.88
143. The Commission notes that the Victim's statements are consistent with witness
testimony and multiple reports of widespread repression against Tawarghans in the
country. The Commission also notes that the Tawarghan constitute an ethnic group
identifiable by the dark colour of their skin. The consistency between the statements
of Victim's and witnesses' and the multiple reports establishes prima facie evidence
that the Victim's arrest and detention were based solely on his ethnic origin and the
Tawarghan's alleged support for Gaddafi's regime since 2011. Given that his three
cousins arrested with the Victim were murdered, the Commission considers that it is
difficult for the Complainants to provide additional direct evidence of the
discrimination suffered by the Victim.
144. The Commission recalls that it is the responsibility of the Respondent State to
protect detainees from discrimination. In the absence of evidence to the contrary from
the Respondent State, the Commission considers that the Victim's allegation of racial
discrimination is well-founded. This is confirmed by the fact that the treatment
suffered by the Victim cannot be justified or proportionate.
145. While the search for the perpetrators of crimes committed by pro-Gaddafi forces
is legitimate, the authorities responsible for investigating these crimes must act within
the law and only make arrests only when necessary. In the present case, however, the
victim was arbitrarily detained solely on the basis of the Tawarghan's alleged support
for the Gaddafi regime. There is no objective and reasonable reason in the file to justify
the racial discrimination against the Victim. If the Victim was suspected of
involvement in crimes, the competent authorities should have gathered evidence of
his guilt before his arrest. The case file shows that such verification of membership of
Gaddafi's forces took place after 20 months of detention and torture. Consequently,
the treatment suffered by the Victim has no justifiable basis.
87
Statement by Mr Abdallah Aljalab Aqleewan dated 15 February 2020, para 4.
88 Declaration of 18 February 2020.
37
146. The means used are also grossly disproportionate to the objective of investigating
the crimes. The authorities should use investigative techniques that respect human
rights, such as consulting archives or taking statements from witnesses. The Victim
was subjected to torture, inhuman and degrading treatment, threats and arbitrary
detention for 20 months in order to force him to confess to the crimes he is alleged to
have committed.
147. As the treatment suffered by the Victim was differential, unjustified and
disproportionate, the Commission concluded that there had been a violation of Article
2 of the African Charter.
Alleged violation of Article 4 of the Charter
148. Article 4 of the African Charter provides that "the human person is inviolable.
Everyone has the right to respect for his life and for the physical and moral integrity
of his person: no one shall be arbitrarily deprived of this right".
149. The Complainants claim that the act and omissions of the Respondent State show
a clear intention to deprive them of their lives. In assessing whether the State's
conduct violates the right to life, the Commission refers in particular to its
jurisprudence in the case of Ibrahim Almaz Dieng and Others v Sudan89 in which it held
that the obligation of States Parties to respect and ensure the right to life applies in the
face of threats and situations that could reasonably result in the loss of life, even if
such a threat or situation does not result in the loss of life. 90
150. The Commission also considers it relevant to refer to the reasoning of the
European Court of Human Rights in a number of cases, including Acar and Others v
Turkey 91 where the European Court found that the Complainants were victims of
conduct that was likely to pose a serious risk to their lives, even though they survived
the attack. In the case of Makaratzis v Greece, 92 the European Court ruled that
regardless of whether the police intended to kill or not, the Complainant was the
89 Communication 470/14- Ibrahim Almaz Deng & 6 Others (represented by Institute for Human Rights
and Development in Africa) v Sudan.
90 Human Rights Committee, General Comment 36, para 7.
91 Eur.C.H.R, Acar et al. v. Turkey, Judgment of May 24, 2005, App . No. 36088/97 and 38417
92 Eur.C.H.R, Makaratzis v. Greece [CC), Judgment of December 20, 2004, App. No. 50385/99, paras. 51
and 55.
38
victim of conduct likely to endanger his life, so that even if he survived, Article 2 of
the European Convention had been violated.
151. In its General Comment No. 3, the Commission considered that a violation of the
right to life occurs when a State or its representative unlawfully attempts to kill a
person but that person survives, or when it unlawfully threatens the life of a person.93
152. In the present case, the Complainants report several acts and omissions that are
likely to endanger the life of the Victim. These include the shooting in Misrata that
claimed the lives of his three cousins and from which he survived after a period in a
coma, several deliberate shots to his legs, being subjected to continuous acts of torture,
being tied by a rope to a car and dragged around the prison yard, electric shocks,
almost complete deprivation of food or water for separate periods of three and 20
days, deprivation of medical care despite infected wounds, isolation in a container
without toilet or bedding and deprivation of assistance. The Complainants also
submitted three medical reports and photographs to demonstrate the seriousness of
the injuries sustained. The Commission considers that acts and omissions of such
gravity undoubtedly endangered the Victim's life.
153. The Commission also notes that the protection of the right to life requires "effective
criminal law provisions to deter the commission of offences against the person and
the establishment of repressive mechanisms to prevent, repress, investigate and
punish violations of criminal law".94 The Commission notes that more than ten years
after the events that threatened the victim's life, the perpetrators have not been
prosecuted.
154. The Commission therefore concludes that the Respondent State has violated
Article 4 of the African Charter.
Alleged violation of Article 5 of the Charter
155. Article 5 of the Charter provides that "Everyone has the right to respect for the
inherent dignity of the human person and to recognition as a person before the law.
93 African Commission on Human and Peoples' Rights, General Comment No. 3 on the right to reparation
for victims of torture and other cruel, inhuman or degrading treatment or punishment (Article 5), para 8.
94 CADHP, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v.
Sudan (2009)
Communication 279/03-296/05, above n.203, at para. 147.
39
All forms of exploitation and degradation of human beings, in particular slavery,
trafficking in persons, physical or moral torture, and cruel, inhuman or degrading
treatment or punishment, shall be prohibited".
156. As Article 5 of the Charter does not define torture, the Commission adopts the
definition contained in the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. 95
157. Article 1 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment defines torture as "any act by which severe pain
or suffering, whether physical or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person information or a confession, or for
any other reason based on discrimination against any person, to punish him for an act
he or a third person has committed or is suspected of having committed, or to
intimidate or coerce him or a third person, or for any other reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other person
acting in an official capacity... "
158.
The existence of torture requires the presence of three elements :
a) Acute pain or suffering inflicted intentionally
b) The pain must be inflicted for the purpose of obtaining information,
punishing the person, intimidating the person or for any other reason
based on discrimination.
c) Pain or suffering inflicted by, at the instigation of or with the consent of
a public official.
159. The Complainants describe in detail the suffering inflicted on the Victim,
including the handcuffing of his arms, repeated beatings sometimes lasting more than
five hours, shooting to his legs, blows to his wounds, deprivation of food and water
for several days, electric shocks, solitary confinement,, deprivation of mattresses and
toilets, verbal death threats, witnessing the execution of his three cousins, listening to
the cries of torture of other detainees, denial of medical care despite injuries and
insults.
95 Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v. Sudan, para 156.
40
160. The Commission considers that the failure of the Respondent State to deny the
facts as reported by the Complainants constitutes tacit acquiescence. This position is
in line with the Commission's established jurisprudence, according to which "when
allegations of human rights violations are not contested by the Respondent State, ...
the Commission shall decide on the basis of the facts submitted by the Complainant
and shall treat those facts as they are provided to it...".96
161. The physical suffering of the Victim is also evidenced by three medical reports,
namely: (1) a medical report issued by the Bone Surgery Unit of the Benghazi Medical
Centre97 , confirming that the Victim had serious gunshot wounds to both legs and
had undergone several operations to treat these wounds. The Victim's wounds
became infected and he required further surgery; (2) a medical report issued by the
Medical Consultation Committee98 confirming that the Victim had gunshot wounds
to his legs and that his wounds had become infected, adding that his case required
treatment abroad; and (3) a medical report dated 13 February 2020 issued by the
Benghazi Medical Centre 99 stating that: (i) the Victim sustained multiple gunshot
wounds to his legs and feet; (ii) he suffered fractures and severe disabilities as a result
of his injuries in addition to a chronic infection of his left tibia; (iii) he is currently
unable to walk properly; and (iv) he will require further surgery in the future.
162. This evidence is corroborated by photographs of the injuries taken in 2014 and
2015 which, to a certain extent, show the damage caused by the injuries to the Victim's
legs. 100
163. The Commission notes that these acts caused severe physical and mental suffering
to the Victim. The Commission recalls that, in order to be qualified as torture, the acts
committed must not only cause severe pain or suffering but, above all, must be
inflicted by or at the instigation of a public authority, with the aim of punishing or
obtaining information or a confession; such pain or suffering may be physical or
mental. 101
96See Communication 204/97- Mouvement Burkinabé des droits de l'homme et des peuples v. Burkina Faso, para
42.
97 Annex 6 to the brief on the merits.
98 Annex 7 to the brief on the merits.
99 Annex 8 to the brief on the merits.
100 Annex 9 to the brief on the merits.
101 See United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1984), article 1.
41
164. The Commission notes that in the case under consideration, the acts causing
physical and mental suffering on the Victim were intentionally committed by
members of the Infanterie al-Swehli militia from Misrata. At the time of the events
referred to in this Communication, members of the Infanterie al-Swehli militia of
Misrata exercised police powers and acted in public places with, if not the
authorization, at least the acquiescence of the public authorities. In the period
following the fall of the Gaddafi regime in 2011, thuwar such as the al-Swehli militia
were officially mandated to perform security and detention functions and received
salaries from the Respondent State as well as, in many cases, weapons and other
equipment. 102 As a result, the al-Swehli militia arrested and detained people, ran
prisons and transferred prisoners to other prisons or to hospitals. In these
circumstances, the members of the militia acted as agents of the Respondent State.
165. The file shows that these acts of torture were inflicted on the Victim for several
purposes prohibited by the African Charter, namely to extract confessions of crimes
against the revolutionaries, to collectively punish the Tawarghan for their loyalty to
the Gaddafi regime, intimidation and racial discrimination.
166. Consequently, all the elements required for the commission of torture appear to
be present, and the Commission concludes that the Respondent State has violated
Article 5 of the African Charter.
Alleged violation of Article 6 of the Charter
167. Article 6 of the African Charter provides that "Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty except on such grounds
and under such conditions as are determined in advance by law; in particular, no one
shall be arbitrarily arrested or detained". The Commission reiterated the importance
of these provisions in the "Guidelines on the Conditions of Arrest, Police Custody
and Pretrial Detention in Africa" (Luanda Guidelines, 2014), which state that no one
shall be deprived of his or her liberty except on such grounds and in accordance with
such procedures as are established by law.103
102 UNHCR, Investigation by the Office of the United Nations High Commissioner for Human Rights on
Libya: Detailed Findings, 15 February 2016, at para. 52, available at:
https://www.ohchr.org/Documents/Countries/LY/A_HRC_31_CRP_3.pdf ; UNHCR, Abuse Behind
Bars: Arbitrary and unlawful detention in Libya, April 2018, p. 8, available at:
https://www.ohchr.org/Documents/Countries/LY/AbuseBehindBarsArbitraryUnlawful_EN.pdf
103 Guidelines on the conditions of arrest, police custody and pre-trial detention in Africa, 2(a), (ACHPR
2014),
42
168. The Commission notes the Complainants' allegation that the Victim's arrest and
detention for 20 months by members of the al-Swehli militia was arbitrary. The
Commission notes that not all acts that restrict a person's physical liberty constitute a
deprivation of liberty within the meaning of Article 6 of the Charter. But a deprivation
of liberty that is not within the strict limits of the law, or for reasons that are
unacceptable or simply arbitrary, is a violation of section 6 of the Charter.104 In Liesbeth
Zegveld and Mussie Ephrem v. Eritrea, the Commission considered that incommunicado
detention constituted a serious violation of human rights under Article 6 of the
Charter105 .
169. The Commission notes from the complainants' submissions that the members of
the al-Swehli militia did not present the Victim with an arrest warrant at the time of
his arrest. The Victim was therefore not officially informed of the reasons for his arrest.
However, as stated in the Commission's Resolution on the Right to a Remedy and a
Fair Trial (1992), it is not sufficient for the arrested person to be able to guess the
reasons for his or her arrest, but he or she must be informed by means of an official
notification.106
170. The Victim was never charged with a crime during the 20 months of his detention.
Furthermore, the Victim was held incommunicado throughout his detention and was
not brought before the judicial authorities competent to rule on the legality of his
detention. The Victim was eventually released without charge.
171. For the foregoing reasons, the Commission considers that the arrest and detention
of the Victim by the al-Swehli militia violated Article 6 of the Charter.
Alleged violation of Article 16 of the Charter
172. Article 16 of the Charter provides that: "1. Every individual shall have the right to
enjoy the best attainable standard of physical and psychological health. 2. States
http://www.achpr.org/files/instruments/guidelines_arrest_detention/guidelines_on_arrest_police_cus
tody_detention.pdf
104 Communication 339/2007 - Patrick Okiring and Agupio Samson (represented by Human Rights Network and
ISIS-WICCE) v. Uganda, para 107.
105 Communication 250/02-Liesbeth Zegveld and Mussie Ephrem v. Eritrea, para 55.
106 Resolution on the Right to Recourse and Fair Trial, adopted at the 11th Ordinary Session of the African
Commission on Human and Peoples' Rights in Tunis, Tunisia in 1992, at para. 2(b), available at:
https://www.achpr.org/sessions/resolutions?id=9
43
Parties to the present Charter shall take the necessary measures to protect the health
of their people and to ensure that they receive medical attention when they are sick."
173. The Commission noted that the right to the highest attainable standard of health
includes the right to health facilities and access to goods and services which must be
guaranteed to all without discrimination of any kind. 107 The right to the highest
attainable standard of health relates to the existence, accessibility, acceptability and
quality of health care, services and conditions, and imposes an obligation on the State
to respect, fulfil and protect it. As explained by the Commission in the Pretoria
Declaration on Economic, Social and Cultural Rights in Africa (2004), this care,
services and conditions include health services accessible to all, access to the
minimum food necessary to avoid malnutrition, access to housing, drinking water,
reproductive health and protection against most infectious diseases. 108
174. In Egyptian Initiative for Personal Rights and Other v. Egypt, the Commission noted
that the right to health acts directly or indirectly as a precondition for all other human
rights recognized by the African Charter 109 This was also emphasized in the
Communication Purohit and Moore v. The Gambia where the Commission stated that
the enjoyment of the right to health, as widely known, is essential to all aspects of a
person's life and well-being, but also to the realisation of all other human rights and
fundamental freedoms.110
175. The Commission also noted in its Principles and Guidelines on the
Implementation of Economic, Social and Cultural Rights in the African Charter on
Human and Peoples' Rights (2011) that the right to health also includes the right not
to be subjected to inhuman or degrading treatment. 111
176. It is generally recognized that torture and ill-treatment cause severe psychological
and physical trauma to the victim, "trauma that may last for a long time and may
never completely disappear". 112 Health problems resulting from torture and ill107Communication 241/01- Purohit & Moore v. The Gambia, para 80.
108 See Pretoria Declaration on Economic, Social and Cultural Rights in Africa, 17 September 2004, para 7.
109 Communication 323/06- Egyptian Initiative for Personal Rights and INTERIGHTS v/ Egypt (ACHPR
2011), para 261
110 Communication 241/01 - Purohit and Moore v The Gambia (ACHPR 2003), para 80
111 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the
African Charter on Human and Peoples' Rights, para 65
112 See the link between torture, inhuman treatment and the right to health, Centro de Atencion
Psiciosocial and the International Rehabilitation Council for Torture Victims, 'Torture and ill-treatment as
44
treatment can therefore be interpreted as a violation of the right of individuals to enjoy
the highest attainable standard of physical and psychological health. 113 In other
words, the right to health entails freedoms, including the right not to be subjected to
torture or other ill-treatment.114
177. The Commission ruled that the responsibility of a State in the case of detention is
all the more evident when the places of detention are under its exclusive authority.
Thus, in these circumstances, the physical integrity and well-being of detainees are
the responsibility of the competent public authorities. In addition, the lack of basic
services such as drinking water and electricity as well as the lack of medicines
constitute a violation of Article 16.115
178. In the present case, as noted above, the Victim was subjected to severe acts of
torture by the thuwar, which caused him significant physical and psychological
damage, some of which was permanent. More specifically, the Victim was subjected
to conditions of extreme deprivation of water, food and inadequate sanitation or
hygiene for much of his detention. The Victim was also denied access to emergency
medical care when his bullet wounds became infected. The Commission considers
that these shortcomings constitute a violation of the Victim's right to health.
179. The Commission notes that the Respondent State did nothing to prevent these acts
or to mitigate their effects on the victim's physical or psychological health. According
to the Committee on Economic, Social and Cultural Rights in its General Comment
No. 14, the State fails in its obligation to protect the right to health when it "fails to
take all appropriate measures to protect persons within its jurisdiction from violations
a violation of Economic, Social and Cultural Rights in Peru, March 2012, available at:
http://www2.ohchr.org/english/bodies/cescr/docs/ngos/CAPS-IRCT_Peru48.pdf
113 https://www.who.int/health-topics/human-rights#tab=tab_1 Complete the references
114 OHCHR, The Right to Health, Factsheet 31, June 2008, available at:
http://www.ohchr.org/Documents/Publications/Factsheet31.pdf
115 CADHP, 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 c. Mauritania, Communication Nos. 54/91-61/91-96/93-98/93-164/97_196/97-210/98
(11 May 2000), para. 122; Communication Nos. 137/94-139/94-154/96-161/97 - International PEN,
Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa
Jnr.) v. Nigera, para 112.
45
of the right to health by third parties". 116 This obligation applies a fortiori when the
violations of the right to health are perpetrated by State agents.
180. The Commission therefore concludes that there has been a violation of Article 16
of the African Charter.
Alleged violation of Article 1 of the African Charter
181. Article 1 of the African Charter provides that: "Member States of the Organisation
of African Unity, Parties to this Charter, recognize the rights, duties and freedoms set
forth in this Charter and undertake to adopt legislative or other measures to
implement them".
182. With regard to the violation of Article 1, the Complainants consider that Libya has
failed to fulfil its obligation to respect and protect human rights, its obligation to
conduct a prompt, effective and impartial investigation into acts of torture and its
obligation to provide an effective remedy. The Complainants make it clear that the
Respondent State’s failures must be considered in the context of the violation of
Articles 2, 4, 5, 6 and 16 of the African Charter.
183. The Commission's jurisprudence considers that the violation of any provision of
the African Charter automatically entails the violation of Article 1.117 According to the
Commission, this reflects the failure of the State Party to take adequate measures to
give effect to the provisions of the African Charter.118 The African Court came to the
same conclusion in the case of Thomas v Tanzania119, ruling that the obligation under
Article 1 of the Charter is not respected or is violated when any of the rights, duties
or freedoms enshrined in the Charter are restricted, violated or not applied.
184. The Commission notes that the Respondent State was sufficiently aware of the
widespread nature of the torture and ill-treatment in places of detention, as recalled
in paragraphs 116 to 120 above.
116 General Comment No. 14 of the Committee on Economic, Social and Cultural Rights, adopted in 2000,
para 51.
117 Communication 368/09 - Abdel Hadi, Ali Radi & Others v. Sudan, (ACHPR 2014), paras 91-92.
118 Communication 266/03-Kevin Mwanga Gunne et al / Cameroon (ACHPR 2009) para 213
119 See
CAfDHP, Application no. 005/2013 - Alex Thomas v. Tanzania, Judgment on the merits of 20
November 2015, para 135
46
185. In addition to the above-mentioned reports, the Commission notes that MSF
reported the injuries of 115 people, including the victim, to the competent authorities
in Misrata, but that no action was taken on these complaints. The Commission also
notes HRW's report that "since 15 February 2011, widespread violations committed
by militias against Tawarghans, including prolonged arbitrary mass detention,
torture and other ill-treatment, forced displacement and unlawful killings, have gone
largely unpunished." 120 The Commission further notes that in November 2015,
UNMIL and OHCHR reported that no perpetrator belonging to an armed group had
been convicted since 2011. 121
186. It is clear from these facts that the Respondent State has not shown due diligence
in addressing the violations identified in this communication.
187. The Commission considers that Law No. 38 (2012) and Law No. 35 (2012), which
grant immunity to "military personnel, civilians or rebels" for acts carried out with the
aim of ensuring the success of or protecting the revolution of 17 February 2011, hinder
the prosecution of those involved in the violations found.
188. The Commission considers that the failure of the Respondent State to prevent or
effectively remedy the violations constitutes lack of commitment to take appropriate
measures to give full effect to the provisions of the African Charter in accordance with
Article 1.
189. In view of the fact that the Commission has already found violations of Articles 2,
4, 5, 6 and 16 of the African Charter and that the perpetrators of these violations
continue to enjoy impunity, the Commission concludes that there has been a violation
of Article 1 of the African Charter.
THE COMMISSION'S OBSERVATIONS ON THE APPLICATIONS FOR
COMPENSATION
190. The African Charter does not contain a specific provision on reparation for
violations of the rights enshrined therein. Since the right to reparation for violations
120 Human Rights Watch, Libya: Displaced Population Can't Go Home, 24 January 2019, available at:
https://www.hrw.org/news/2019/01/24/libya-displaced-population-cant-go-home; and Human Rights
Watch, Libya: Ensure Safe Return of Displaced Tawarghans, 20 June 2017, available at
https://www.refworld.org/docid/5948dff64.html
121 See UNSMIL/OHCHR, Report on the Human Rights Situation in Libya, 16 November 2015,
http://www.refworld.org/docid/5652f3ec4.html , p 30.
47
of human rights obligations is a fundamental principle of international law, 122 the
Commission considers that it is self-evident that any damage should be made good.
This has also been reaffirmed by the Permanent Court of International Justice in the
following terms: " It is a principle of international law that a violation of an obligation
entails an obligation to make reparation in an appropriate form. Reparation is
therefore the indispensable complement to the failure to apply a treaty, without it
being necessary for it to be written into the treaty itself ".123
191. In its jurisprudence, the Commission has concluded that any violation of the rights
enshrined in the Charter gives rise to a right to reparation, including monetary
reparation. 124 This was the case, for example, in Jean-Marie Atangana Mebara v.
Cameroon, where the Commission indicated that reparation could take various forms
depending on the rights violated and the circumstances of the case, ranging from
administrative, legislative and judicial measures to monetary compensation125 .
192. The Guidelines on the Right to a Remedy and Reparation also specify that full and
effective reparation includes restitution, compensation, rehabilitation, satisfaction
and guarantees of non-repetition.126 The Guidelines on the Right to a Remedy and
Reparation further provide that " reparation should be made for all damage resulting
from gross violations of international human rights law and serious violations of
international humanitarian law, which can be valued in economic terms and which is
appropriate and proportionate to the gravity of the violation and the circumstances
of each case, such as (a) physical or psychological harm; (b) loss of opportunities,
including employment, education and social services; (c) material damage and loss of
earnings, including loss of earning potential; (d) moral harm; (e) costs of legal
122 Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of
international human rights law and serious violations of international humanitarian law, Resolution
60/147 adopted by the United Nations General Assembly on 16 December 2005.
123Permanent Court of International Justice, Judgment No. 13 - Case concerning the Chorzow Plant (Claim
for Compensation),p.29 See also https://www.icj-cij.org/public/files/permanent-court-of-internationaljustice/serie_A/A_17/54_Usine_de_Chorzow_Fond_Arret.pdf
124 See for example Communication 59/91-Embga Mekongo Louis v. Cameroon (2000) RADH 60
(ACHPR 1995) para 2 ; Communication 253/02- Antoine Bissangou v. Congo; Communication 315/05- Good
v. Botswana. para 245 ; ; Communication 389/10 - Mbiankeu Geneviève v. Cameroon; and Communication
393/10 - Institute for Human Rights and Development in Africa and Others v. Democratic Republic of Congo.
125 Communication 416/12- Jean-Marie Atangana Mebara v/ Republic of Cameroon (ACHPR 2015) para 134.
126 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations
of International Human Rights Law and Serious Violations of International Humanitarian Law, para 18.
See Umuhoza v/ Rwanda (Application No. 003/2014) [2018] AfCHPR 73 (7 December 2018) (Reparations),
para 20.
48
assistance or expert advice, medicines and medical services, and psychological and
social services". 127
193. The Commission considers as victims to be persons who, individually or
collectively, have suffered harm, in particular physical or psychological harm, as a
result of acts or omissions that constitute violations of the African Charter.128 The term
"victim" also includes members of the immediate family or dependents of the direct
victim, as well as persons who have suffered harm by intervening to assist a victim or
to prevent him or her from becoming a victim129. In this sense, the victim and his or
her first-degree relatives may be considered victims when the harm caused by the
violations is established.
194. In the present case, the Complainants make a number of claims for reparation. The
Commission proposes to analyse them as follows.
a. Compensation for the material damage suffered by the Victim
195. The Complainants request that the Commission order the Respondent State to pay
compensation in the amount of 276,000 Libyan dinars (equivalent to USD 195,769),
including the Victim's loss of income: 126,000 Libyan dinars (equivalent to USD 89,37);
cost of the Victim's medical treatment: 100,000 Libyan dinars (equivalent to USD
70,911); and costs related to the medical treatment of the Victim's mother: 50,000
Libyan dinars (equivalent to USD 35,439).
196. According to the complainants, this amount is based on the fact that the victim
received a monthly salary of 450 Libyan dinars prior to his arrest in October 2011.
They add that from October 2011 until the date of this communication, the Victim has
not been able to receive any income for 8 years and 6 months (102 months) of
employment, the opportunity cost of which is 45,900 Libyan dinars.
197. The Complainants claim that prior to his arrest and detention, the Victim planned
to work until his retirement in December 2034, at the age of 60. They estimate that,
due to his inability to work, the victim's opportunity cost from the date of this
127 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations
of International Human Rights Law and Serious Violations of International Humanitarian Law, para. 20.
128 ACHPR, General Comment No 4, para 16 and 17.
129 Idem, para 17
49
communication until December 2034 is 80,100 Libyan dinars (equivalent to 14 years
and 10 months of additional working years (178 months)). They state that this total
does not take into account (i) inflation and (ii) the likelihood that the victim would
have received a promotion (and a corresponding increase in salary) between October
2011 and his retirement in December 2034.
198. The Commission considers that in cases of loss of opportunities, victims are
entitled to full compensation for the damage suffered. For example, in a case of unfair
dismissal, the Commission recommended that the Democratic Republic of the Congo
(DRC) take all necessary measures to reinstate the complainants, with all legal
consequences, and pay them damages and interest for the loss caused by the nonpayment of salaries and benefits due, all other losses and moral prejudice. 130 The
Commission also decided on a case of a Member of Parliament who was unable to
exercise his elective mandate, and recommended that the DRC pay the Complainant
the salaries and benefits due for the period during which he was unable to exercise
his functions.131
199. The Commission considers that in the case of loss of income and potential
income, the amount of compensation is calculated by taking into account the Victim's
age at the time of the violation and the years separating him from the mandatory
retirement provided for by national legislation, then multiplying this figure by the
actual income calculated on the basis of the Victim's salary.132
200. In the case under consideration, the Commission notes that the Complainants do
not provide any evidence of the Victim’s salary or contract prior to his arrest in
October 2011. Nor do the Complainants provide any evidence of the expenses
incurred for the medical treatment of the Victim's mother. In these circumstances, the
Commission considers that the Complainants have not proved their allegations. In
order to obtain compensation for material damage resulting from the violation of a
right, there must be evidence establishing a causal link between the facts and the
damage suffered.133
130 Communication 408/11 - José Alidor Kabambi Beya Ushiye and others v. Democratic Republic of
Congo, para 116.
131 Communication 433/12- Albert Bialufu Ngandu v. Democratic Republic of Congo, para 86.
132 Velásquez Rodríguez case, para. 46, and Godínez Cruz v Honduras (1989) IACtHR (Series C No. 8) para. 44.
133 Application No. 011/2011. Judgment of 13/06/2014 - Reverend Christopher R. Mtikila v/ United Republic of
Tanzania, para. 30. See also Application 013/2015 - Robert J. Penessis v/ United Republic of Tanzania, paras
145-149.
50
201. The Commission considers, however, that fear, discrimination against the
Tawarghan, the fact that the thuwar have been integrated into the State services and
the malfunctioning of the State services constitute obstacles to the search for evidence
within the army in which the Victim served.
202. Consequently, the Respondent State should assist the Victim in finding
documentary or testimonial evidence and pay his salary until he reaches the legal
retirement age.
b. Compensation for moral harm suffered by the Victim and his family
203. The Complainants submit that the Victim has suffered severe physical and
psychological suffering as a result of his unlawful detention, torture and ill-treatment.
204. The Victim's Witness Statement 134 details the psychological suffering suffered.
These include:
a) Depression when he remembers what happened and because he can't go out with
his two-year-old son or carry him and play with him like any other father;
b) Nightmares and flashbacks of his detention and torture;
c) Frequent insomnia due to detention and torture; and
d) Loss of concentration, migraines and dizziness.
205. The statement from the victim's cousin135 reveals that the Victim's "psychological
situation is bad because of his injuries and the fact that he cannot walk", adding that
"it is well known in our family that Mansour is not in good health and is in a bad
psychological state".
206. The Complaint states that it was not possible to carry out a full psychological
medical assessment of the Victim due to lack of appropriate facilities in Benghazi. The
Complaint alleges that the Victim's condition, as described above, corresponds to: (i)
the symptoms experienced by other torture survivors;136 and (ii) the DSM-5 diagnostic
criteria for post-traumatic stress disorder.137
134 Annex 3 to the brief on the merits.
135 Annex 4 to the brief on the merits.
136 United Nations General Assembly, Torture and other cruel, inhuman or degrading treatment or
punishment, 1 September 2004, para. 49, available at: https://digitallibrary.un.org/record/533052?ln=en
137 he DSM-5 Diagnostic Criteria for PTSD (as at 2013) can be accessed at:
https://www.ncbi.nlm.nih.gov/books/NBK207191/box/part1_ch3.box16/
51
207. The Complainants state that the Victim also endured a variety of emotional
damages, including:
a) Separation from his family for no reason and without knowing how long he would
be detained;
b) Arbitrary and incommunicado detention and solitary confinement in inhuman
conditions;
c) Severe and prolonged torture and ill-treatment during detention, including
extreme hunger;
d) Lack of access to medical care, resulting in permanent disability; and
e) Serious and enduring physical and mental health problems after release.
208. The Complainants claim USD 100,000 for moral damages in accordance with the
jurisprudence of human rights bodies on arbitrary detention and torture.
209. The Complainants also allege that the Victim's family endured the anguish of not
knowing whether Mansour was alive, where he was being held, under what
conditions and when he will be released. They allege that this caused great distress to
his family, particularly his mother. After Mansour's release, he found his mother in a
"very bad psychological state". 138 While the victim was in prison, his mother
developed diabetes and high blood pressure, which he had never suffered from
before. They further reveal that he had a stroke because he was very distressed to see
his son in his current state, unable to walk or even carry his two-year-old son.139 The
Complainants allege that the Victim's son cannot play or interact with his father as his
peers would because of his permanent disability, which has left him confined to a
wheelchair. The Complainants claim moral damages of USD 20,000 for each of the
Victim's first-degree relatives, namely his mother, his wife and his son.
210. The Commission notes that the Complainants describe the suffering experienced
by the Victim's mother and son, but do not mention that of his wife. The Commission
also notes that his wife married the Victim in 2015, approximately two years after his
release. The Commission considers that the Victim's wife can only claim moral
reparation for the post-marital violations, in this case the failure of the Respondent
State to provide justice to the Victim and to take measures to alleviate his suffering.
138 Annex 3, para. 54.
139 Annex 3, para. 58.
52
211. The Commission considers that there is a rebuttable presumption of injury to the
moral integrity of the parents and close relatives of a person held incommunicado.
For example, in the case of Benidir v Algeria,140 , the Commission found that Benidir's
incommunicado detention and disappearance had caused anguish and distress to his
relatives, who had not provided any information about his suffering. In the same case,
the Commission found that "detaining people without allowing them any contact
with their families and refusing to inform their families of the fact and place of their
detention constitutes inhuman treatment for both for the detainee and his family".141
The Inter-American Court agrees, ruling that "there is a presumption of victimhood
for the immediate family members of the disappeared, which it is up to the State to
overturn". 142
212. As mentioned above, the Victim was held incommunicado for 20 months, which
inevitably caused his mother anxiety. The Complainants have not provided the
slightest evidence of a link between the ill-treatment suffered by the Victim and the
illnesses suffered by his mother.
213. The Commission recalls that compensation for moral damage is based on the
principle of equity, taking into account the severity of the victim's suffering and the
duration and consequences of the human rights violations. The Commission
considers that there is a rebuttable presumption of moral prejudice in favour of
victims of violations of the rights guaranteed by the African Charter. With regard to
the quantification of moral reparation, the Commission considers it appropriate to
draw inspiration from the jurisprudence of the Inter-American Court of Human
Rights, according to which the starting point for the calculation of reparation is the
amount claimed by the Victim,143 , and from the jurisprudence of the African Court
on Human and Peoples' Rights, which consists in awarding lump sums calculated in
all fairness, taking into account the particular circumstances of each case. 144
Communication 348/17- Collectif des familles de disparu(e)s on behalf of the Benidir family v. Algeria,
para 181.
141 Idem, para 180.
142 Gomes Lund v Brazil IACHR (24 November 2010), paras 234-238; Radilla-Pacheco v Mexico IACHR
(23 November 2009), paras 161-162.
143
Gridin v Russia (2006) ECHR (Application No. 4171/04) para. 20. Firstov v Russia (2014) ECHR
(Application No. 42119/04) para. 49 (holding that "the applicant cannot be required to provide any
evidence of non-pecuniary damage he has suffered").
144 See for example Application 013/2011- Ayants droit de feus Norbert Zongo et Autres v. Burkina Faso
(Reparations), para 62; Application 004/2013-Lohé Issa Konaté v. Burkina Faso (Reparations), para 59; and
Application 001/2015- Armand Guehi v. Tanzania (Merits and Reparations), para 180.
140
53
214. In cases of torture and inhuman treatment, regional and international human
rights bodies have awarded moral damages for arbitrary detention and torture and
ill-treatment inflicted by State agents, the amount of which varies according to the
circumstances and the personal conviction of the body concerned.
215. In the case of IHRDA and Others v. DRC, 145 the Commission awarded
compensation of 200,000 dollars to each of the survivors of acts of torture and
execution committed by the Congolese armed forces. In the case Mohammed
Abderrahim El Sharkawi v. Egypt, 146 the Commission awarded compensation of 1
million Egyptian pounds (approximately USD 140,000) to a victim of ill-treatment and
solitary confinement.
216. In the case of TFA v. Cameroon,147 the African Committee of Experts on the Rights
and Welfare of the Child found that the rape of the complainant, a 13-year-old girl,
constituted inhuman or degrading treatment 148 and awarded the victim moral
compensation of 50 million CFA francs (approximately USD 87,500 in 2018) for the
Respondent State's failure to conduct an impartial investigation and provide the
victim with an effective remedy.
217. In the case of Mugesera v Rwanda, 149 the African Court awarded 10 million
Rwandan francs (approximately USD 10,450 in 2020) to the complainant, who had
been the victim of death threats by prison guards, cancelled medical appointments,
deprived of the breakfast prescribed by the doctor, held in solitary confinement for
several days and subjected to inadequate lighting in his detention cell.
218. In the case of Musa Saidykhan v The Gambia,150 the Court of Justice of the Economic
Community of West African States (ECOWAS) awarded the Complainant USD
200,000 in moral damages for having been subjected to severe beatings and electric
shocks over his entire body, including his genitals, during 22 days of detention. In the
case of Alhousseine Camara v Guinea,151 , the ECOWAS Court of Justice awarded 940
145 Communication 393/10-IHRDA and Others v DRC, para 154.
Communication 396/11 - Mohammed Abderrahim El Sharkawi (represented by EIPR and OSJI) v.
Egypt, para 355.
147 Idem, para 84.
148
Communication No 006/Com/002/2015- Decision No :001/2018- Institute for Human Right and
Development in Africa & Finders Group Initiative on behalf of TFA (minor) v. Cameroon, para 71.
149 African Court, Léon Mugesera v Rwanda, Application no. 012/2017, Judgment of 27 November 2020.
150 Musa Saidykhan v. Republic of The Gambia, ECW/CCJ/APP/11/07 (ECOWAS, 16 December 2010),
at para. 44
151 Alhousseine Camara v Guinea, Judgment ECW/CCJ/APP/18/19, page 29. See also Darboe and Others v.
The Gambia, Judgment ECW/CCJ/JUD/01/20 (20 January 2020) in which the ECOWAS Court of Justice
146
54
million Guinean francs (around USD 100,000 in 2019) to the Complainant, who had
been tortured by gendarmes to the extent that he suffered fractures to his arm and
burns to his back.
219. In Abu Zubaydah v Lithuania, 152 the European Court awarded €100,000 in nonpecuniary damages to a victim of extraordinary rendition, arbitrary detention and
torture.
220. In Espinoza González v. Peru,153 the Inter-American Court awarded USD 60,000 to a
woman who had been arbitrarily arrested and tortured while in detention, and USD
40,000 in moral damages to his mother. In the case of Women Victims of Sexual Violence
of Atenco v. Mexico,154 the Inter-American Court awarded USD 70,000 to each of the
torture victims and USD 15,000 to their relatives.
221. The Commission considers that financial compensation can help victims to
alleviate their suffering. With regard to the amounts requested, the Commission notes
that reasons have been given and considers that they are not exorbitant, taking into
account the duration and intensity of the torture and having regard to the
jurisprudence referred to above. However, it considers that the Victim's wife suffered
moral damages of a lesser intensity and duration and thus concludes that it is
appropriate to award moral damages of USD 100,000 to the Victim, USD 20,000 to his
mother, USD 20,000 to his son and USD 10,000 to his wife.
c. Prompt and impartial investigation
222. The Complainants request a prompt, impartial, independent and thorough
investigation into the arrest and detention of the Victim and the subsequent torture
and ill-treatment.
ordered The Gambia to pay compensation of US$100,000 to ten Complainants for torture in detention,
and Federation of African Journalists and Others v. The Gambia, Judgment ECW/CCJ/JUD/ 04/18 (13 March
2018) in which the ECOWAS Court of Justice ordered The Gambia to pay compensation of US$100,000 to
ten Complainants for torture in detention. The Gambia, Judgment ECW/CCJ/JUD/ 04/18 (13 March 2018)
in which the Court ordered The Gambia to award damages of 2,000,000 Gambian Dalasi (approximately
US$40,000 in 2018) to journalists who were victims of torture.
152 Abu Zubaydah v. Lithuania, Appl. no. 46454/11 (ECHR, 31 May 2018). See also the case of Umar Karatepe v.
Turkey, Application no. 20502/05 (ECHR, 12 October 2010) in which the European Court of Human
Rights awarded €12,000 in non-pecuniary damages to a Complainant who had been beaten and deprived
of medical care while in police custody for two hours.
153 Espinoza González v. Peru (Judgment of 20 November 2014, para. 334)
154 Women victims of sexual violence in Atenco v. Mexico, judgment of 28 November 2018, para. 376
55
223. The Commission recalls that one of the obligations of States to ensure the
implementation of human rights is the "obligation to protect". Under this obligation,
States are required to ensure that the enjoyment of all human rights by everyone
without discrimination is protected against abuse by third parties. Such protection is
to be achieved not only through the introduction of laws and measures to protect
human rights, as set out in Article 1 of the Charter, but also through the establishment
of affordable and accessible procedures for remedies in the event of violations of those
rights.
224. As the Commission has already underlined in the Communication Egyptian
Initiative for Personal Rights & Other v. Egypt, States must above all "put in place
normative systems and institutions to maintain a judicial system that provides
remedies for violations and imposes sanctions on offenders"155 . Thus, in this regard,
States must ensure that those responsible for violations are held accountable for their
actions through administrative, disciplinary or judicial sanctions, where appropriate
or necessary. It follows that the Complainants' application is well-founded.
225. A prompt and impartial investigation into the circumstances of the violation is an
important element of a victim's right to satisfaction. 156 The Commission has stated
that satisfaction includes "the right to the truth, recognition by the State of its
responsibility, effective registration of complaints, and investigation and
prosecution".157
226. The Respondent State is therefore required to conduct a prompt, impartial,
independent and thorough investigation into the arrest and detention of the Victim,
ensuring that the investigators have no hierarchical or institutional links with those
involved in the arrest, detention, torture and ill-treatment of the Victim. The latter
must be informed of the outcome of the investigation, and any existing immunity
must be lifted with respect to any official suspected of being responsible for the
violations identified in this Communication, 158 and adequate protection against
155 Communication 323/ 06- Egyptian Initiative for Personal Rights & INTERIGHTS v./ Egypt, (ACHPR
2011), para 274
156 Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan,
para. 150; Gabriel Shumba v Zimbabwe, Communication 288/04, paras. 136 and 153; Egyptian Initiative
for Personal Rights and Interights v Egypt, Communication 323/06, para 173.
157 ACHPR, General Comment No. 4, para 44.
158 ACHPR, General Comment No. 4, para 28.
56
harassment and reprisals must be provided to the Victim, his family members and
witnesses.
d. Public apologies
227. The Complainants request the Commission to recommend that the Respondent
State issue a public apology to the victims. Given the political instability and the
context of the ongoing conflict in Libya and security concerns, the Complainants
request that the Respondent State, in close consultation with the victims, issue a public
apology to them so as not to re-victimize them or jeopardise their safety.
228. Public apologies are a form of reparation for human rights violations. For example,
in the case of IHRDA and Others v. DRC, the Commission requested the Respondent
State to issue and publish an official and full apology to the people of Kilwa. 159
Similarly, in its General Comment No. 4 on the right to reparation for victims of
torture and other cruel, inhuman or degrading treatment or punishment (Article 5),
the Commission recognizes that satisfaction as a means of reparation may include a
public apology, including acknowledgement of the facts and acceptance of
responsibility by the State.160 The Commission should therefore accept this request.
Changes in legislation
The Complainants argue that the Respondent State's legislative framework suffers
from several shortcomings that should be remedied. The first shortcoming concerns
the failure to implement the Ministry of the Interior's Decree of 29 November 2011
prohibiting the "revolutionary brigades" (the thuwar) from carrying out arrests and
interrogations.
229. The second shortcoming was the failure to comply with Law No. 38 of 2012 on
Certain Procedures for the Transition Period, adopted by the CNT on 2 May 2012,
which provides that detainees linked to the 2011 conflict to be handed over to the
judicial authorities within two months of its promulgation.
230. The third shortcoming concerns the failure to implement Law No. 29 of 2013 on
Transitional Justice, Article 26 of which established a new deadline of three months
159 Communication 393/10 - IHRDA and Others v. DRC, para. 144.
160 African Commission on Human and Peoples' Rights, General Comment No. 4 on the African Charter on
Human and Peoples' Rights on the right to reparation for victims of torture and other cruel, inhuman or degrading
treatment or punishment (Article 5), para 44.
57
from December 2013 for the judicial release of detainees or their referral to the Public
Prosecutor’s Office.
231. The fourth shortcoming relates to the ineffective application of Law No. 9 of March
2014, Article 1 of which sets a new deadline of 120 days for the referral of detainees to
the competent prosecutor or their release.
232. Fifthly and finally, the Complainants allege a culture of impunity enshrined in
Article 2 of Law No. 38 of 2012, which provides that "the reports prepared by the
thuwar on the establishment of the facts, the testimony of witnesses and the statements
of detained supporters of the former regime shall be as valid as the evidence gathered
by the police in accordance with the Code of Criminal Procedure, provided that they
are considered trustworthy by the trial judge on the basis of his discretionary power
of assessment".
233. The Commission considers that the problems identified do not relate to the
legislation itself but to its implementation. The Commission considers that the
Respondent State should adapt its judicial system so as to put an end to the unlawful
exercise of judicial powers by the thuwar and ensure that the cases of detainees are
dealt with expeditiously and, in case of unlawful detention, order their immediate
release. The Respondent State should also ensure that reports prepared by the thuwar
using torture and inhuman treatment are declared inadmissible by the courts. The
Respondent State should also ensure that victims of serious human rights violations
have access to an effective remedy, in particular in the form of reparation and
guarantees of non-repetition.
234. The Commission notes that Law No. 38 of 2012 grants immunity for military and
security acts committed by revolutionaries, with the exception of serious crimes such
as torture and kidnapping. Thus, the said law does not prevent the prosecution of the
perpetrators of the violations established.
235. The Commission notes that the Complainants also request the revision of the
Criminal Code of 1954 and Law No. 10 of 2013, enacted by the National Transitional
Council in April 2013, which would limit the scope of the prohibition of torture to
places of detention. They allege that these two laws make no reference to the purposes
of torture as set out in Article 1 of the Convention against Torture, including (i) to
obtain information, (ii) to punish an act that the victim or a third party has committed
58
or is suspected of having committed, (iii) to intimidate or coerce, or (iv) for any reason
based on discrimination of any kind.
236. The Libyan Penal Code criminalizes torture as follows: "Any public official who
orders the torture of an accused person or who tortures him or her shall be punished
by imprisonment for a term of three to ten years".161Article 2 of Law No. 10 of 2013
states that "Anyone who inflicts or orders the infliction of physical or mental suffering
on a detainee under his or her control in order to extract a confession from him or her
about an act that he or she may or may not have committed, or for reasons of
discrimination of any kind, or for revenge of any kind, shall be punished by a prison
sentence of at least five years. The same penalty shall be imposed on anyone who
conceals an act of torture when he or she is in a position to prevent it. The penalty
may not be less than eight years' imprisonment if the torture has caused substantial
damage, and ten years' imprisonment if it has caused serious damage. If the victim of
torture dies, the penalty shall be life imprisonment.162
237. The Commission notes that the two laws do not define torture and considers that
the Respondent State should revise the Criminal Code of 1954 and Law No. 10 of 2013
to include a definition of torture in line with international standards, in particular by
extending the scope to all places where torture may be committed. The Commission
therefore decides to accede to the request.
Institutional and practical reforms
238. The Complainants request the Commission to recommend institutional and
practical reforms to the Respondent State in order to prevent similar human rights
violations in the future. These include:
a) Immediately and unconditionally release all persons arbitrarily detained or
otherwise unlawfully deprived of their liberty, or transfer them to an independent
and impartial judicial system to be tried in proceedings that meet international fair
trial standards;163
161 Unofficial translation of article 435. The English and Arabic versions of the Penal Code are available at
https://security-legislation.ly/latest-laws/penal-code/
162 Unofficial translation. The English and Arabic versions are available at https://security-legislation.ly/latestlaws/law-no-10-of-2013-on-the-criminalisation-of-torture-forced-disappearance-and-discrimination/
163 UNHCR, Investigation by the Office of the United Nations High Commissioner for Human Rights on
Libya: Detailed Findings, 15 February 2016, at para. 38, available at:
https://www.ohchr.org/Documents/Countries/LY/A_HRC_31_CRP_3.pdf, at p. 38.
59
b) Transfer all persons lawfully deprived of their liberty to official prisons, ending all
unofficial detention centers run by State-affiliated authorities and non-State
actors;164
c) Ensure adequate treatment of all persons detained or deprived of their liberty,
including the elimination of torture and other ill-treatment, access to legal counsel,
medical care, adequate food and water. International and national monitoring
bodies should be granted regular, unimpeded and unannounced access to all
places of detention;165
d) Conduct full, impartial and independent investigations into all allegations of
unlawful killings in custody, torture and ill-treatment with a view to bringing
those responsible to justice. This involves: taking measures to ensure the
confidentiality and protection of victims and witnesses; providing adequate
medical care and access to doctors able to produce medical reports in accordance
with recognized international standards; and developing and implementing
policies for the confidential storage of medical records of torture victims in
hospitals and the provision of such records to victims upon request. Pending
investigation and prosecution, persons against whom there are reasonable
grounds to suspect that they have committed, ordered or participated in torture
or other crimes should be removed from active duty;166
e) Urgently address the proliferation of armed groups, in particular through
disarmament, demobilization and reintegration and the establishment of national
security forces under the command and control of the State;167
f) Provide technical assistance and capacity building to the judicial police, other law
enforcement agencies and the judiciary, including the establishment of a fair
selection and recruitment process to ensure that those suspected of involvement
in alleged human rights abuses are excluded; and the provision of additional
164 Investigation by the Office of the United Nations High Commissioner for Human Rights on Libya, p
38, available at: https://documents-ddsny.un.org/doc/UNDOC/GEN/G19/025/55/PDF/G1902555.pdf?OpenElement
165 Investigation by the Office of the United Nations High Commissioner for Human Rights on Libya:
Detailed Findings, p. 86. Available at: https://documents-ddsny.un.org/doc/UNDOC/GEN/G19/025/55/PDF/G1902555.pdf?OpenElement
166 UNHCR, Abuse Behind Bars: Arbitrary and unlawful detention in Libya, April 2018, p. 40, available at:
https://www.ohchr.org/Documents/Countries/LY/AbuseBehindBarsArbitraryUnlawful_EN.pdfA.
167 United Nations High Commissioner for Human Rights, Report on the situation of human rights in
Libya, including on the effectiveness of technical assistance and capacity-building measures received by
the Government of Libya, A/HRC/34/42, 13 January 2017, p. 16, available at: https://documents-ddsny.un.org/doc/UNDOC/GEN/G19/025/55/PDF/G1902555.pdf?OpenElement
60
specialist training, including on international minimum standards for the
treatment of detainees,168
g) Provide full cooperation and support to the International Criminal Court by
assisting its investigations and complying with its decisions;169 and
h) Undertake institutional reforms to ensure that the Respondent State adopts a
holistic, long-term and integrated approach to rehabilitation and specialized
services for survivors of torture and ill-treatment, which should be available,
appropriate and rapidly accessible.170
239. The Commission notes that the institutional reforms requested fall largely outside
the scope of this Communication and can only accept requests that are related to the
Communication.
240. The Committee considers that, in view of the shortcomings observed in the
administration of justice, the respondent State is under an obligation to strengthen the
capacity of the judicial police, judges and prison officers to respect the right to liberty
and to protect detainees from all forms of torture or inhuman and degrading
treatment. The inclusion of a human rights module in the training curriculum of law
enforcement agencies could serve as a means of preventing and remedying the
various abuses committed by law enforcement agencies in Libya, which are
frequently reported.
241. This would also be in line with the interpretation given by the Commission in its
General Comment No. 4 on the Charter concerning the right to reparation for victims
of torture and other cruel, inhuman or degrading treatment or punishment. In that
General Comment, the Commission emphasized that one of the measures that States
must take to combat impunity for the violence committed is "to establish effective and
clear instructions for public officials, including law enforcement officials and defence
and security forces, and to provide them with continuous training on the obligations
of States Parties under the African Charter, in particular with regard to the absolute
168 Abuse Behind Bars: Arbitrary and
unlawful detention in Libya, April 2018, p. 40, available at:
https://www.ohchr.org/Documents/Countries/LY/AbuseBehindBarsArbitraryUnlawful_EN.pdf.
169 United Nations High Commissioner for Human Rights, Report on the situation of human rights in
Libya, including on the effectiveness of technical assistance and capacity-building measures received by
the Government of Libya, A/HRC/34/42, 13 January 2017, p. 17, available at: https://documents-ddsny.un.org/doc/UNDOC/GEN/G19/025/55/PDF/G1902555.pdf?OpenElement
170 ACHPR, General Comment No. 4, paras. 41 and 43.
61
prohibition of torture and the special needs of marginalised, disadvantaged and
discriminated populations" .171
242. In addition, the Commission considers that the Respondent State must ensure the
adequate treatment of all persons detained or deprived of their liberty, in particular
by eliminating torture and other ill-treatment, access to a lawyer, to medical care and
to sufficient food and water.
243. The Commission also considers that the Respondent State is under an obligation
to provide the victim, his mother and his son with adequate medical and psychosocial
assistance for as long as their health requires.
The Commission’s decision on merits
244. For the foregoing reasons, the Commission declares that the Respondent State has
violated Articles 1, 2, 4, 5, 6 and 16 of the African Charter on Human and Peoples'
Rights.
245. Consequently, the Commission recommends that the Respondent State :
a) Conduct a prompt, impartial, independent and thorough investigation into the
torture suffered by the victim, and prosecute and punish the perpetrators;
b) Assist the Victim in finding documentary or testimonial evidence and pay his
salary until he reaches legal retirement age, and assess any other material damage
suffered by the Victim and award him substantial compensation;
c) Pay the Victim USD 100,000 in compensation for pain and suffering;
d) Pay the Victim's mother USD 20,000 in compensation for pain and suffering;
e) Pay the Victim's son USD 20,000 in compensation for pain and suffering;
f) Pay the Victim's wife USD 10,000 in compensation for pain and suffering;
g) Provide the Victim, his mother, his wife and his son with free, immediate,
adequate and effective medical and psychological or psychiatric care through
specialized public health institutions for as long as their health requires;
h) Make a public apology to the Victim, his mother, his son and his wife, in
consultation with them;
171 ACHPR, General Comment No. 4 on the African Charter on Human and Peoples' Rights on the right to
reparation for victims of torture and other cruel, inhuman or degrading treatment or punishment (Article
5), para 46, i.
62
i) Include a human rights module in the training curriculum for judges, judicial
police and prison staff, with particular emphasis on respect for the right to liberty
and the prohibition of torture;
j) Undertake the necessary institutional, legislative and judicial reforms to put an
end to arbitrary detention, ill-treatment in prisons and other places of detention
and impunity for human rights violations;
k) Revise the Penal Code of 1954 and Law No. 10 of 2013 to include a definition of
torture in line with international standards and extend its scope to all places where
torture is committed.
l) Ensure the adequate treatment of all persons detained or deprived of their liberty,
in particular by eliminating torture and other ill-treatment, by ensuring access to
a lawyer and to medical care and by providing adequate food and water;
m) Ensure that the victims and their representatives are directly involved in the
implementation of this decision;
n) Submit to it a written report, within one hundred and eighty (180) days of
notification of this decision, on the measures taken to implement this decision.
Done at the 81st Ordinary Session, held in Banjul, The Gambia, from 17 October to 6
November 2024