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Communication 383/10 –Mohammed Abdullah Saleh Al-Asad v. Djibouti

ACHPR Decision

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SUMMARY OF COMPLAINT1
Summary of Facts1
Alleged violations of the African Charter3
Remedies sought4
PROCEDURE4
Objections on procedure and theCommission’s decision9
THE LAW ON ADMISSIBILITY12
The Parties’Submissions12
The Commission’sAnalysis onAdmissibility23
The African Commission’s Decision on Admissibility37

Communication 383/10 –Mohammed Abdullah Saleh Al-Asad v. Djibouti

ACHPR Decision

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Type of Document

Decision

Keywords

Administration of Justice
Arbitrary Arrest and Detention
Coercion / Duress
Cruel and Degrading Treatment
Detention Facilities/Conditions
Enforced disappearance
Equality Before the Law
Expulsion from a State
Freedom from Discrimination
Freedom of Movement
Human Rights Violations
Kidnapping/Sequestration
Personal Liberty
Protection of Family and Vulnerable Groups
Right to be Heard before a Competent Court
Right to Fair Trial
Right to Health
Right to Information
Right to Life
Right to Property
Rights of Non-Nationals
Terrorism
Torture and Ill Treatment

Case Head Notes: The Complainant states that he is a citizen of Yemen. From 1985 until 2003 he lived in the Republic of Tanzania and established a family there. He also had a successful business. To facilitate his residence and business undertakings including acquisition of land in Tanzania, he obtained a forged Tanzanian birth certificate and a passport.

Country

Djibouti

Outcome: Ruled Inadmissible

Year Decided: May 12, 2014

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7.1: Right to be Heard
ACHPR 1: General Obligations
ACHPR 12.4: Condition for Expulsion on Non-Nationals
ACHPR 14: Right to Property
ACHPR 18: Protection of the Family and Vulnerable Groups
ACHPR 2: Freedom from Discrimination
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 4: Right to Life and Integrity
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest

Rights Violated (ACHPR Provisions)

None Indicated

Rights Not Violated (ACHPR Provisions)

None Indicated

Duration of Procedure

Dec 10, 2009 ~ May 12, 2014

Country Geolocation

Latitude: 11.825138

Longitude: 42.590275

Country Geolocation (linked ACHPR Decision): Djibouti

Primary Documents

achpr55_383_10_eng.pdf
english
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African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. Article 5Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Article 121. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law. 2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality. 3. Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions. 4. A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. 55. The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.

Treaty

African Charter on Human and Peoples' Rights

Article 1The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them.Article 2Every 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, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. 3Article 31.Every individual shall be equal before the law. 2.Every individual shall be entitled to equal protection of the la

Treaty

African Charter on Human and Peoples' Rights

Article 6Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained. Article 71.Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defense, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 2.No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

Treaty

African Charter on Human and Peoples' Rights

14The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.

Treaty

African Charter on Human and Peoples' Rights

Article 181. The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral. 2. The State shall have the duty to assist the family which is the custodian or morals and traditional values recognized by the community. 3. The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions. 4. The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs

Treaty

Rules of Procedure of the African Commission on Human and People's Rights

Upon receiving the observations 3. of the Respondent State on Admissibility, the Complainant may comment on the observations within one month of receipt

ACHPR Soft Law

Rules of Procedure of the African Commission on Human and People's Rights

Upon receiving the observations 3. of the Respondent State on Admissibility, the Complainant may comment on the observations within one month of receipt

ACHPR Soft Law

Rules of Procedure of the African Commission on Human and People's Rights

The Commission may grant an 2. extension which shall not exceed one (1) month, and shall not grant more than one extension per party for any given submission.

ACHPR Soft Law

Rules of Procedure of the African Commission on Human and People's Rights

In conformity with Rule 88(6), the 4. Commission, while determining Admissibility may ask the parties to present supplementary observations in an oral hearing.

ACHPR Soft Law

Rules of Procedure of the African Commission on Human and People's Rights

6. The Commission may also allow the parties to make additional observations orally

ACHPR Soft Law

Rules of Procedure of the African Commission on Human and People's Rights

36A party requesting a hearing, shall 4. do so at least ninety (90) days before the beginning of the session in which the Communication is going to be considered.

ACHPR Soft Law

Rules of Procedure of the African Commission on Human and People's Rights

During hearings, the Commission 2. shall permit oral presentations by the parties on new or additional facts or arguments or in answer to any questions that it may have concerning all issues relating to the Communication.

ACHPR Soft Law

Rules of Procedure of the African Commission on Human and People's Rights

The Commission shall determine, at 1. its own initiative, or at the request of one of the parties, when to call independent experts and witnesses of the parties to the Communication whom it considers necessary to hear in a given case. A request to call a witness by one of the parties shall not be rejected unless the Commission has good reasons to believe that such a request constitutes an abuse of process. The invitation to the hearing shall indicate:The parties to the a. Communication;A summary of the facts or b. issues in relation to which the Commission desires to hear the witness or expert.2. Any such person may, if they do not have sufficient knowledge of the working languages of the Commission, be authorised by the Chairperson to speak in any other language to be interpreted in one of the Working Languages of the Commission.3. After establishing the identity of the witnesses or experts the Chairperson of the Commission shall request them to take the following oath:For witnesses “a. I swear/affirm that I will speak the truth, the whole truth and nothing but the truth.”For the experts “b. I swear/affirm that my statement will be in accordance with my knowledge, findings and sincere belief.”4. The State Party to the communication shall give an undertaking not to victimise or persecute the witnesses or experts, or carry out reprisals against them or their family members because of their statements or expert opinions given before the Commission

ACHPR Soft Law

Rules of Procedure of the African Commission on Human and People's Rights

Submissions of observationsWhen the Commission has decided 1. to be seized of a Communication pursuant to the present Rules, it shall promptly transmit a copy of the complaint to the Respondent State. It shall simultaneously inform the Complainant of the decision on seizure, and request the Complainant to present evidence and arguments on admissibility within two months. Upon receipt of the Complainant’s 2. observations on admissibility, the Secretary shall transmit a copy to the respondent state and request the latter to make a written submission, containing its arguments and evidence on admissibility, within two months of its receipt of the Commission’s request. The Secretariat shall, within a week of receipt of the state’s submission, provide the Complainant with a copy.Upon receiving the observations 3. of the Respondent State on Admissibility, the Complainant may comment on the observations within one month of receipt. In conformity with Rule 88(6), the 4. Commission, while determining Admissibility may ask the parties to present supplementary observations in an oral hearing.

ACHPR Soft Law

Rules of Procedure of the African Commission on Human and People's Rights

Upon receipt of the Complainant’s 2. observations on admissibility, the Secretary shall transmit a copy to the respondent state and request the latter to make a written submission, containing its arguments and evidence on admissibility, within two months of its receipt of the Commission’s request. The Secretariat shall, within a week of receipt of the state’s submission, provide the Complainant with a copy.Upon receiving the observations 3. of the Respondent State on Admissibility, the Complainant may comment on the observations within one month of receip

ACHPR Soft Law

Rules of Procedure of the African Commission on Human and People's Rights

n conformity with Rule 88(6), the 4. Commission, while determining Admissibility may ask the parties to present supplementary observations in an oral hearing.

ACHPR Soft Law

Rules of Procedure of the African Commission on Human and People's Rights

6. The Commission may also allow the parties to make additional observations orally

ACHPR Soft Law

Rules of Procedure of the African Commission on Human and People's Rights

Upon receiving the observations 3. of the Respondent State on Admissibility, the Complainant may comment on the observations within one month of receipt.

ACHPR Soft Law

Rules of Procedure of the African Commission on Human and People's Rights

ACHPR Soft Law

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Article 56Communications relating to human and peoples' rights referred to in 55 received by the Commission, shall be considered if they: 1.Indicate their authors even if the latter request anonymity, 2.Are compatible with the Charter of the Organization of African Unity or with the present Charter, 3.Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, 4.Are not based exclusively on news discriminated through the mass media, 5.Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, 6.Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and 7.Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

2.Are compatible with the Charter of the Organization of African Unity or with the present Charter,

Treaty

African Charter on Human and Peoples' Rights

15Article 56Communications relating to human and peoples' rights referred to in 55 received by the Commission, shall be considered if they: 1.Indicate their authors even if the latter request anonymity, 2.Are compatible with the Charter of the Organization of African Unity or with the present Charter, 3.Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity,

Treaty

African Charter on Human and Peoples' Rights

4.Are not based exclusively on news discriminated through the mass media

Treaty

African Charter on Human and Peoples' Rights

6.Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

6.Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Are compatible with the Charter of the Organization of African Unity or with the present Charter,

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and

Treaty

African Charter on Human and Peoples' Rights

Treaty

Rules of Procedure of the African Commission on Human and People's Rights

uring hearings, the Commission 2. shall permit oral presentations by the parties on new or additional facts or arguments or in answer to any questions that it may have concerning all issues relating to the Communication.

ACHPR Soft Law

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

International Covenant on Civil and Political Rights ICCPR

Article 11. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

UN Document

Communication 306/05 – Samuel T. Muzerengwa & 110 Ors (represented by Zimbabwe Lawyers for Human Rights) v. Zimbabwe

ACHPR Decision

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

2.Are compatible with the Charter of the Organization of African Unity or with the present Charter

Treaty

African Charter on Human and Peoples' Rights

Treaty

Treaties and softlaw only46
- Treaty30
- ACHPR Soft Law15
- UN Document1
Cases Referenced1
- ACHPR Decision1
Location1
- Countries (Geolocation) 1

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