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ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Hesponsibititv complainant firmly establishes that the domestic court or authority will inevitably dismiss a claim or when a positive result is impossible due to past court rulings, state inaction, or danger in seeking out the remedy. Indeed, the Commission has previously found that complainants are not required to exhaust domestic remedies that objectively have no chance of success 19. This principle speaks to the effectiveness or otherwise of a domestic remedy. 53. In this respect, the Complainants have argued that they could not file for a writ of habeas corpus on behalf of the Victim as doing so ""i~;tlldrequire employing a legal representative based in Eritrea, an untenable. option considering the risk to the personal safety and career of such person. In this same vein, they argue that the courts in Eritrea would ignore any habeas corpus applic,ationJiled before them as doing otherwise would jeopardise the career and pe~~itmial 'saf~"t~B£theresponsible judges. 54. On this claim, the Commission is reluctant to admit blanket P!oclamations that absolve Complainants from even attempting to exhaust domestic remedies. While this Commission takes note of the findings of the COl concerning the alleged climate of fear and impunity in Eritrea, the Commission is mindful that political instability though regrettable is' .not uncommon. Indeed, the Commission has declared numerous Communications inadmissible for failure to exhaust domestic remedies notwithstanding the political upheavals described therein". In this case, the Complainants are based outside Eritrea and could have sought the assistance of any number.of legal representatives towards filing their writ. They have not firmly established that all the available legal representatives in Eritrea are reluctant to file such applications due to fear of persecution or that the Courts will always ignore such appli~ations. 55. The Complainants referred the Commission to the three Communications against Eritrea, mentioned in paragraph 26 supra, as evidence of impediments created by the climate of fear and impunity. In those Communications, they argue that legal representatives in Eritrea refused to assist in filing for a writ of habeas corpus and that applications filed by the complainants were nevertheless ignored. Notably, two of the three Communications referenced were decided more than ten years , / 19 ~-:-... 0\1 \\U:.1A/J-1 See for example Communication 368/09 (2013), Abdel Hadi, Ali Radi & Others 1rIRrjp~bJfE-ror§tlda~f,,,<. particularly paras 46-49. /.~'~ . . -e .... I' Supra note 15; see also Communication 340/07 - Nixon Nyikadzino (representec{1fI1 Zi a?J7tfma) "'. Rights NG.O.. Forum) v Zimbabuie (2014) ACHPR. o (... "/~ 20 An°f,gaf~Ofthe .' A ncan ((~1 Union ~lo1 'I~ (!}t ,~S. AU-UA ~te<f. 1 ~~ 0 ;;; The African CommiSSio~n ~ ~ights 31 Bijilo Annex Layout. Kombo ~!il[tQ P~1r~tR~~ttCb~Region Phone: (220j·~t~P,.1fFE'1X~P-~0:)V~:1 0504 Email: au-bafi-l'iJt@Jlfr:l:G'lH1nlon.org https:lachpr,au.intiO 0 III

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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
English
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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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