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. . ,.�CHP�. : . · ACHPR Human Rights our Collective Responsibility )·. African Commission on <r.n.w.d � Human and Peoples' Rights evidence was not the basis for the conviction. 53 Arguably, the Commission would have reached a different conclusion if the evidence presented had been strong enough to warrant the reopening of the trial or to call into question the evidence on which the conviction had been based. 152. In Communication 323/06 Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, the Commission further observed that in addressing the concerns, needs and interests of victims in judicial proceedings, the primary concern should be to ensure that victims of human rights violations obtain redress by giving them an opportunity to appeal decisions from other judicial bodies and that failure to allow victims to appeal decisions is contrary to the guiding principles and spirit of the African Charter and other international and regional instruments. 54 f In the present communication, given the fact that the Complainant was refused the opportunity to present his evidence before the Supreme Court and the Judicial Committee without recourse to an attorney, leads to the conclusion the right to appeal to a competent national organ, which is a key component of the right to have his cause heard was denied, hence violating article 7(1)(a) of the Charter. 153. Over the years, the Commission has clarified the content of the right to defence, notably through the adoption of the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa which enshrines the principle of an individual's right to defend themselves in person alongside the right to legal representation: "The accused has the right to defend him or herself in person or through legal assistance of his or her own choosing." 55 154. 155. In doing so, the Commission has espoused the approach of the travaux preparatoires,56 and adopted a characterization very much akin to the right to defence under the International Covenant on Civil and Political Rights in its article 14(1)(d), as reaffirmed by the UN Human Rights Committee in Michael and Brian 53 Communication 277/03, Spilg and Mack & DTTSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, 12 October 2013, ACHPR, para. 187-190. 54 Communication 323/06, n24 above, para. 219-220. 55 n46 above, Principle N(2)(a) Right to counsel. 56 The Commission hereby echoes the earlier version of the Charter found in the travaux preparatoires, notably Article 21(2)(d) of the so-called M'Baye draft, which provided: "During the proceedings every person is entitled, with full equality, to the following minimum guarantees: [ . . . ] (d) the right of the accused to defend · r��-: personally or to be assisted by legal counsel of his own choosing, and to communicate freely and pr· ...,, efy: '¢th 1 I q,i,0 :;, hi• s counsel.11 ,.., . -------.. '°('0 0 .., · v Page 36 of45 �·t .qi' African Commission on Human and P �les' igh�\ 31 Bijilo Annex Layout, Kombo stric� � � � ) .... � (I) r-, , West Coast R ibn i b� ·UA ,§ � / Q' Phone: (220) 230 4361 Fax: ( 2 '!,4if-<W // _,'>Q Email: au-banjul @ africa · 1filgc111,;; .,· . �tB ,'?,,.I/ '� ._ 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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