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/ / p.CHP#l - � ,' ·, \'' -\ / I . ACH PR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility 140. The Commission has held that a violation of Article 3(2) needs to show that 'the Respondent State had not given the Complainant the same treatment it accorded to the others. Or that, the Respondent State had accorded favourable treatment to others in the same position as the Complainant'.42 141. In the present instance, the Commission finds that, by refusing the Complainant the right to litigate in person which is not refused to the representative of the State and can only be afforded by individuals with the necessary means, in terms of Rule 3 of the Court Rules 2000 and the 1 July 2011 ruling, the Respondent State is in violation of article 3(2) of the Charter. Alleged violation ofArticle 7 142. Article 7 provides as follows: 1 . Even; 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 defence, 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. 143. The right to fair trial is of utmost importance. Parties to a trial must be afforded due process. The Commission provided further clarification on the meaning of Article 7 in Kenneth Good v. Republic of Botswana, in which it asserted that the right to be heard requires that the Complainant should enjoy unrestricted access to a court of competent jurisdiction to have his case heard.43 The Commission considered that "when the authorities put impediments in the way to prevent 42 Communication 294/04, n30 above, para 101. 43 Communication 313/05 - Kenneth Good v Republic of Botswana (ACHPR) para 16 Communication 286/2004, n26 above, paras. 191. Ati�nr�, Union\!¥ Page 33 of 45 "> African Commission on Human an 31 Bijilo Annex Layout, Korn West Coas Phone: (220) 230 4361 Fax: Email: au-banjul@afn https:/achpr.au.i nt/0 0 a '

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Communication 459/13 - Devendranath Hurnam v. Mauritius

ACHPR Decision

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Type of Document

Decision

Keywords

Equality
Equality Before the Law
Functioning and Independence of the Judiciary
Right to be Heard before a Competent Court

Case Head Notes: The Complainant is a lawyer, who, in the midst of dealing with charges that were brought against him, wished to represent himself without the services of an attorney. The Respondent State denied this possibility. The Commission found a violation of Article 3 stating that the right to litigate one's own case is protected under the African Charter, and because, otherwise, those who are unable (because of financial or other reasons), or unwilling, to use the services of an attorney will be deprived of their right to be heard by the Court. The Commission also noted that the right to litigate in person is not refused to the representatives of the State, so to deny that right to the other party is unequal. The Commission found a violation of Article 7 stating that, given that the Complainant was refused the opportunity to present his case in front of the Supreme Court and the Judicial Committee, the Complainant was denied the opportunity to appeal to a competent national organ, and, therefore, denied the right to have his case heard. The Commission further states that no substance would be left to the right to defence if it meant that individuals, whose rights are infringed, can only pursue justice through the services of a third party. The Commission asserted that the right to be defended by counsel of their choice is an entitlement and not a requirement. The Commission found no violation of Article 26 stating that the Complainant submitted a series of allegations which could not be sufficiently substantiated and cannot be considered as solid evidence. They also state that they do not have a reason to conclude that the Respondent State has not allowed the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of human rights, as required by Article 26 of the Charter. The Commission requested the Respondent State to take all necessary measures to ensure the reopening of the proceedings, as requested by the Complainant, and to allow him to be self-represented if he desires. The Commission also requested the Respondent State to ensure that its laws and statutes, regarding access to courts, are in line with its obligations under the Charter and to provide the Complainant with financial compensation.

Country

Mauritius

Outcome: Decided on Merits

Year Decided: May 23, 2023

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 26 : Duty to Guarantee Independence of Courts
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law

Rights Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 7.1: Right to be Heard
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 7.1.a: Right to Sue for Remedy before a Competent Tribunal
ACHPR 7.1.c: Right to Defence

Rights Not Violated (ACHPR Provisions)

ACHPR 26 : Duty to Guarantee Independence of Courts

Duration of Procedure

Sep 18, 2013 ~ May 23, 2023

Country Geolocation

Latitude: -20.348404

Longitude: 57.55215200000001

Country Geolocation (linked ACHPR Decision): Mauritius

Primary Documents

Devendranath Hurnam v Mauritius.pdf
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African Human Rights CLA 2.0

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Communication 459/13 - Devendranath Hurnam v. Mauritius

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