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ACHPR African Commission 011 Human and Peoples' Rights Human Hi9hts our Collective Besponsibilitv complaint was submitted on 12 October 2018. In other words, the victim had been in detention for twenty-five (25) days at the time of seizure of the Commission. The analysis could be restricted to the twenty-five (25) days if the Respondent State had complied with the Provisional Measures ordered by the Commission. Therefore, the Commission considers that the detention lasted until the beginning of this 78th Ordinary Session, making it a total of five (5) years, five (5) months and eight (8) days. The Commission notes that the Complainants have not presented any facts demonstrating that (i) severe physical or psychologica] pain or suffering was inflicted at the instigation of or with the consent or acquiescence of the state authorities. Nevertheless, the Commission considers that the detention for (5) years, five (5) months and eight (8) days in the >~onditi6hsr~ferred to above, naturally implies a high level of suffering for which ,the Respondent State is responsible. 129. The Commission considers that the duration of the detetition referred to above, without communication with the outside world, without contact with the family and the lawyer, and without any-judicial control, and considering the state of health and age of the victim, creates a framework of psychological pressure such that it is reasonable Jp consider that this may have caused severe psychological suffering to the victim. The first requirement of torture is therefore met. 130. With. regard to the second requirement, the Commission considers that detention is normally aimed at ensuring that the victim is brought to justice to answer for t~e acts of which he is accused. In the CPP of the Requested State itself, even wHen detention is ordered by the judge, it is aimed at ensuring the detainee's presence in court; or for the protection and safety of any person or the public or the risk of continuing criminal activity or interfering with the investigation. 58 131. The Commission observes that, in the absence of any plausible motivation, it is natural to consider that the detention of the victim for a more than five (5) years by itself constitutes a kind of punishment, which implies fulfilment of the second requirement of torture. It is therefore concluded thaytlj~ vieHIU"yvas 132. ~:,~er?'t:~!:Q'" >~ ~ ;0 ~::~::::::~ ~::ure in violation of Article 5 of the African AnO'llallofthe Afncan (0' .'~ . \}'J U nlon ".;.'lI'~!<. ' Email: CP.[TAf(1 ~ AU-UA u~· -o 31 - ~ '~'It \ The African Commis 31 Bijilo Annex Layout. Ko Phone <.,0 # C;; .Pc§OpleS' Rights (t)lpr1¥l'llili,!it:ifI\.I\YWSl C9-a'st Region ( ~2S.'l--i3r6d[:,~~'2.20) 441 05 04 au-b'ahitJl{@africa-union.ore hllps:/achpr.au.intlQ 0 a

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Communication 704/18 - Berhane Abrehe Kidane (represented by Solomon Weldekirstos and Eritrean Law Society) v. Eritrea

ACHPR Decision

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Type of Document

Decision

Keywords

Arbitrary Arrest and Detention
Civil and Political Rights
Cruel and Degrading Treatment
Detention Facilities/Conditions
Equality
Equality Before the Law
Freedom of Expression / Digital Rights
Freedom of Movement
Freedom of Opinion
Participation in Government
Personal Liberty
Right to be Heard before a Competent Court
Right to Health
Right to Information
Right to Life
Torture and Ill Treatment

Case Head Notes: In 2012, the victim, in his capacity as Minister of Internal Development and Finance, made a proposal which advocated for a new constitutional order. He also stated that his ministry was being undermined by design of the President. The President responded by dismissing the victim from his ministerial position. After his dismissal, the victim wrote a book, which blamed the President for the political crisis in the Respondent State. In 2018, a few days after the book was published, security agents of the Respondent State took the victim to an undisclosed location. His location remains unknown, and he is being held incommunicado, without coming before a court of law, despite his serious health issues. The Commission found a violation of Articles 2 and 3 stating that, although the victim was from the ruling party, the victim was effectively an internal opponent, and deserves the same protection as any other political opponent. Accordingly, the victim's differential treatment, on the basis of his political opinion, violated Articles 2 and 3. Acknowledging that a violation of Article 4 can occur without a death occurring, and that the Respondent State has a heightened responsibility to protect the health of individuals who are detained, the Commission found a violation of Articles 4 and 16 because the conditions of the victim's detention, and the impossibility of pursuing appropriate treatment abroad, were likely to lead to a serious deterioration in the victim's health, and therefore jeopordize the victim's life. The Commission found a violation of Article 5 noting that the lengthy detention, in the conditions referred to, without contact with the outside world, makes it reasonable to consider that it could have caused severe psychological suffering to the victim, and that such a long detention, in itself, constitutes a form of punishment that also meets the second requirement of a torture violation. The Commission found a violation of Article 6 stating that incommunicado detention is incompatible with the requirements of lawful detention, and further that arrest and detention in an unknown location is contrary to Article 6. The Commission found a violation of Article 7, stating that incommunicado detention constitutes the most primary form of the violation of the right to have one's case heard. Noting an absence of a response from the Respondent State, the Commission stated that it must conclude that the detention of the victim, following the publication of their book, violated Article 9 because their expression of opinion resulted in an unjustified detention. The Commission found a violation of Article 12, citing the Respondent State's arbitrary detention of the victim, and also the way they limited the victim's movement in and out of the country, even before his detention. On account of the other violations, the Commission also found a violation of Article 1. The Commission found no violation of Article 13 because the Complainants did not demonstrate to what extent the victim was participating in the government through the publication of his book, and how his detention jeopordized that participation. The Commission called on the Respondent State to immediately release the victim, and ensure full due process rights, if the Respondent State desired further legal action against him. They also urged the Respondent State to facilitate immediate access to medical treatment of the victim's preference, to ensure adequate payment to the victim, and to report on the steps it has taken to implement the Commission's recommendations.

Country

Eritrea

Outcome: Decided on Merits

Year Decided: Mar 8, 2024

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 9: Right to Receive Information and Free Expression
ACHPR 1: General Obligations
ACHPR 12: Right to Freedom of Movement
ACHPR 12:2: Right to leave any country including his own, and to return to his country
ACHPR 12.1: Right to freedom of movement and residence within borders of State of legal residence
ACHPR 13: Right to Participate in Government
ACHPR 13.1: Right to participate freely in government
ACHPR 16: Right to Health
ACHPR 16.1: Right to Enjoy the Best Attainable State of Physical and Mental Health
ACHPR 4: Right to Life and Integrity
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest
ACHPR 9.1: Right to Receive Information

Rights Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 9: Right to Receive Information and Free Expression
ACHPR 1: General Obligations
ACHPR 12: Right to Freedom of Movement
ACHPR 12:2: Right to leave any country including his own, and to return to his country
ACHPR 12.1: Right to freedom of movement and residence within borders of State of legal residence
ACHPR 16: Right to Health
ACHPR 16.1: Right to Enjoy the Best Attainable State of Physical and Mental Health
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 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest
ACHPR 9.2: Right to Express and Disseminate Opinions Within the law

Rights Not Violated (ACHPR Provisions)

ACHPR 13: Right to Participate in Government
ACHPR 13.1: Right to participate freely in government

Duration of Procedure

Oct 12, 2018 ~ Mar 8, 2024

Country Geolocation

Latitude: 15.179384

Longitude: 39.782334

Country Geolocation (linked ACHPR Decision): Eritrea

Primary Documents

Berhane Abrehe Kidane v Eritrea.pdf
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African Human Rights CLA 2.0

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Communication 704/18 - Berhane Abrehe Kidane (represented by Solomon Weldekirstos and Eritrean Law Society) v. Eritrea

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