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AC PR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility has held that, if domestic remedies do not meet the aforementioned • I criteria, a victim I does not have to exhaust them before bringing a complaint. The Commission has further held that a remedy can only be considered effective "if it offers a prospect of success." 9 I 65. The Complainants submit that in August ?012, the First Complainant, appealed the first instance judgment by the Federal High Court (Lideta Criminal Bench) delivered -;"; against him on 13 July 2012. On 2 May ..... , t~e Federal Sup'~eme Court upheld the deq!ded not to request a ~<>-', judgment in first instance. Thereafter, the hearing in the Cassation Division of the that it would not constitute an Qt-t-Qrt-n: deadline for filing an application fo~>? 66. The Complainants argued that tb:~;::rir~,t . . " ;': ;~-,::. that the cassation procedu~~lhad Cassation Division of the;F:~~era:1 . ~ "'~t~~~---;.f.t-.~ can only reconside . appeal instance and ecisi~rl~iiti:\ther'e;:hasI",Q<~n::'<>, ';'~' ~'~"~ :'":\<. 't, :j~;'~T>". '. ' i .' Complainants s, ,mit that a hearing,~t t~e Cassa r\'~ <-~':-;J::..".)\ error of law". The Division of the Federal Supreme ' Court would in,' eed have been a mere f0t~a.yty with no actual prospect for relief for the First Com pi'; nt since the hu~an ~i~hts violations contended for by the First Complainant within.sthe narrow scope of review afforded by the :.,);;~:~,g~e p':.~'?/ :,::: • do I Yi( ""jj;? Cas~~ti.d.~.pro<:edure."'W'; '. , , -...:\ ,- ..... • " <:1". '::. '" ,;",'~:,,:< I. 67. The Cd~Ilplaihant~',,:Cllsosubmit that, under Article 80(3) (a) of the Constitution of '~Y~;. ..' /:, '" '<,.{ ~:\ :.~',:~.~. Ethiopia, 'tJ1~;Federal S1:!preme Court has the power of Cassation review over any and -co'' , x:,,:.:~~· ." : » i every final :~<?urtdeci~ion containing a fundamental error of law. This is further .~~ ;. specified in 'A:~tiCle10 of Proclamation iNo. 25/1996, which states that such a fundamental e~ror of law is the sole ground for approving a Cassation review. Thus, I . . : , . o~~UMAN4No I.. .(toy:' c.~~:AR/.qr ,o~o Entrean law and the Af~ICanChar.ter. The Co~mlsslo~ refers to Inter-Amen~an Cour~~1"fum~lgh~ case I ~. . on the burden.of proof in exhausting ~om~~tic remedies: 'The. Co~rt also opmed that 1J5ere a.:.fp~~~~~none.~ ,ustion f of .localf~emedles bec~u~e of the unavad.abIlIty 0: due proces.s m.th: State, the burden/p~rool WIIJ\<".J)).. \ ~ ~ shift to the State claiming non-exhaustion and It has an obhgatioI'} to prove that dO~1$lC remedles}remam to l!:!e=i exhausted and that they are effective."; Communication 147/95,149/96 Sir Dauida K . aba yd;ara v.",1]zeJ(i;ambit)? pdt. 31 9 Communication 147/95,149/96 - Sir Dauida K. [auiara v The Gambia, para. 31 & 32 • ~j(_ '%<I'~ /<r_-c-,Q '" 'is Ip' a g e .~.. .... . '«<'''''' A~~~~~~~ , m •• - •• _ ••• _... •••••••••••••• ••• •• •••••••••• • ••••••••••••••• •• t The African '. ,s'CI\ -com~~~~~~~ .f(.(;i S e~i~~~ 31 Bijilo Annext-ayel:lti~ North District, West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 0504 Email: au-banjul@africa-union.org https:/achpr.au.intiO 0 a

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Communication 461/13 - Eskinder Nega Fenta and Reyoot Alemu (Represented by Media Legal Defence Initiative and Freedom Now) v. Ethiopia

ACHPR Decision

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Type of Document

Decision

Keywords

Arbitrary Arrest and Detention
Detention Facilities/Conditions
Freedom of Expression / Digital Rights
Right to Fair Trial
Right to Health
Women in prison

Case Head Notes: The First Complainant was arrested on suspicion of terrorism, five days after publishing an online column that criticized the Respondent State's 2009 Proclamation on Anti-Terrorism. The Second Complainant, despite having their sentence reduced from 14 years to five years, had the charge of participation in a terrorist organization upheld against her by the Cassation Division of the Federal Supreme Court. She also states that she was forced to return to prison, after undergoing an operation to remove tumours, during which time she experienced significant pain and discomfort. The Complainants assert that the 2009 Anti-Terrorism Proclamation, and its subsequent implementation have resulted in a significant number of prosecutions of dissenting voices in the Respondent State and that this constitutes a serious or massive violation of human rights, both dejure and defacto. The Commission found a violation of Article 7 because the Second Complainant was not promptly informed of the reason for her arrest, she was not promptly brought before a court of law, she was denied access to a lawyer from the time of her arrest to her preliminary hearing and, when she had access to lawyers, she was not permitted to hold private meetings with them. The Commission further found that Article 7 was violated because negative publicity regarding her guilt, prior to the conclusion of her trial, compromised her right to be presumed innocent, and because, for a number of the charges, she was required to prove her innocence rather than the Court being required to prove her guilt beyond a resaonsable doubt. Additionally, the Commission stated that the negative pre-trial campaign, and a statement by the Prime Minister to Parliament either did, or could have, influenced the proceedings to the detriment of the Second Complainant, and violated her right to an indepedent and impartial proceeding. The Commission found a violation of Article 9 stating that it is the responsibility of the Respondent State, and its officials and agents, to ensure that freedom of expression is respected and protected. As government officials, directly and indirectly, sent the Second Complainant death threats, contributed to the closure of her magazine, and intimidated her to stop writing articles, the Second Complainant's right to freedom of expression was violated by the Respondent State. Additionally, the Commission noted that the broad language of the Anti-Terrorism Proclamation is suceptible to arbitrary application, and affirmed that, in the present case, it did not provide a legitimate basis for restricting the Second Complainant's freedom of expression. The Commission found a violation of Article 16 as, on account of poor sanitary conditions, it did not provide the Second Complainant with conditions of detention consistent with human dignity and the highest attainable standard of health. Further, the Respondent State failed to take measures to ensure adequate and timely medical treatment, including, access to essential drugs, trained medical personnel, preventitive measures against diseases, and recognition of her specific health needs as a woman. The Commission also cited the Respondent State's non-response to the Provisional Measures that were issued to prevent irreparable harm to the Second Complainant. The Commission requested the Respondent State to pay suitable compensation to the Second Complainant (including loss of earnings and compensation for extended pain and suffering), to declare that the 2009 Anti-Terrorism Proclamation is not line with the Respondent State's obligations under international law and to amend it accordingly, and to inform the Commission of the measures being taken to implement the decision.

Country

Ethiopia

Outcome: Decided on Merits

Year Decided: Aug 2, 2022

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 9: Right to Receive Information and Free Expression
ACHPR 16: Right to Health

Rights Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 9: Right to Receive Information and Free Expression
ACHPR 16: Right to Health

Duration of Procedure

Nov 12, 2013 ~ Aug 2, 2022

Country Geolocation

Latitude: 9.145000000000001

Longitude: 40.489673

Country Geolocation (linked ACHPR Decision): Ethiopia

Primary Documents

Eskinder Nega Fenta & Reyoot Alemu (Represented by Media Legal Defence Initiative and Freedom Now) v Ethiopia.pdf
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African Human Rights CLA 2.0

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Communication 461/13 - Eskinder Nega Fenta and Reyoot Alemu (Represented by Media Legal Defence Initiative and Freedom Now) v. Ethiopia

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