that all persons deprived of their liberty have access to medical services and
assistance". 78 The Complainant further referred to other bodies such as the
European Court of Human Rights which elaborated on the duty to provide access
to adequate health care, finding that failure to do so constitutes inhuman treatment
if not torture. 79
108.The Complainant submits that the Victim made repeated requests, to be seen by
a medical doctor during his detention, that were not authorised. According to the
Complainant, the prolonged denial of access to a medical doctor and lack of
adequate medical treatment was in breach of Article 5 of the African Charter.
Alleged Violation of Article 6 of the African Charter
109.The Complainant argues that the African Commission elaborated that[A]n arrest or
detention may be legal according to the letter of domestic law, but arbitrary and
therefore illegal by reason of its inappropriate, unjust or unpredictable nature. The
Complainant referred to the African Commission's Resolution on the Right to
Recourse Procedure and Fair Trial, and the Principles and Guidelines on the Right
to a Fair Trial and Legal Assistance in Africa (Principles and Guidelines on Fair
Trial) which provides that States must ensure that no one shall be subject to
arbitrary arrest or detention, and that arrest, detention or imprisonment shall only
be carried out strictly in accordance with the provisions of the law and by competent
officials or persons authorized for that purpose, pursuant to a warrant, on
reasonable suspicion or for probable cause.80
110.The Complainant submits that the Victim was detained for over a year. During that
time, he was accused of a number of activities, including some that carry heavy
criminal penalties in Sudan, but at no point was he informed of any formal charges
against him, and he was eventually released without charge. At no point was the
Victim shown a warrant for his arrest or any other document relating to the charges
under which he was detained. The Complainant further submits that the Victim was
also accused of being an "American spy", an agent for the United States Embassy
and European Embassies in Sudan, and providing false information to
humanitarian and human rights organisations about the situation in Internally
Displaced Persons Camps, and information to the ICC about crimes committed in
Darfur. The Complainant avers that the Victim's arrest and detention was not based
on a reasonable suspicion and at no point was it made clear on what evidence or
on what grounds he was suspected of having committed an offence. The
Complainant submits that the arrest and detention of the Victim without charge was
therefore arbitrary on several counts.
111.Furthermore, the Complainant argues that the applicable domestic legislation,
namely the National Security Act 2010, is itself in breach of Article 6 of the African
Charter. The Complainant narrates that Article 50 (e-h) of the National Security
Act (NSA) 2010, gives NISS officials wide powers to arrest and detain a person on
Jt§Aclatj- upon
vague grounds for an initial period of up to thirty (30) days (
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78 The Robben Island Guidelines, Part II: Prevention of Torture, Article 31.
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79 1/ascu and Others v. Moldova and Russia, (2005) 40 EHRR 46, paras. 428, 438, 44~ _nd K udop[n v~Rus •
No.59696/00, 26 October 2006, para. 96.
9
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80 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2001
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