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ACHPR African Commission on Human and Peoples' nights Human Hi~lhtsour Collective Hesponsibilitv Any person who has been the victim of unlawful or arbitrary arrest or detention, or of torture and ill-treatment in police custody or pre-trial detention, shall have the right to seek and obtain effective redress for the violation of his or her rights. This right extends to the immediate family or dependants of the direct victim. Remedies include the following: a. Restitution to restore the victim to the situation that would have existed if the violation had not occurred. b. Compensation, including any quantifiable damages resultingfrom the violation of the right and any physical o'rmental harm (such as physical or mental injury, pain, suffering and emotional distress, loss of opportunity, including education, damage to property and loss of actual or potential income, inju~~(.to,reputation or dignitY,,;.and costs of legal or specialist assistance, medicines, medical services and the like), as well as legal costs, and psychological and social services). c. Rehabilitation, including medical and psychological care as well as legal and social services. d. Satisfaction and guarantees of non-repetition. 86 j< --~-,' 177. In this case.'the Complainants • are requesting favour of the victim. Although the complainants compensation in general in do not refer specifically to it, the Commission considers that the compensation in question includes material and moral damages, the conditions of which are analysed below. a) Compensation for material and moral damages 178. The Commission notes that the Complainant seeks monetary compensation for material and non-material damages. In order to award compensation, in addition to the existence of the violation, it is necessary to establish the victims involved, the damage suffered and its link to the violation found. With regard to material damage, the Complainants does not present any material damage he suffered and the proof thereof. In these circumstances, the claim for compensation for material damage suffered is null and void, and there is no point in analysing the other conditions. However, this does n~! prev~nt the tI/ • .... J ~ IU .. '.....tJ '~.~ (.."lr~.'t'/~OA I 0\ --; _,J ~ ~ ~ «> 86 Luanda Guidelines, § 38. In the same vein, see General Comment No.4 on ~Righ(t() R~a tiOI;-\_' for Victims of Torture in Africa, adopted at the 21st Extraordinary Session of ~ Afr can:'t~~is 'qg i on Human an'.d Peoples' Rights held from 23 February to 4 March 2017 in BanJ~ Ga~bia~:;3!i'.!39. f:} ~ ,lit 0 An Organ ofth. \ '" '£. AU-UA 6I?l C/J "i a"-~'~ Afric;an Union ~""~~ The African commiss~n :-;r1:jV I.e! ee~R!eS' Rights 31 Bijilo Annex Layout, KOmbiN1qF.!l1_6iSfi<fee'W~ttSt'oast Region Phone: (220)'230"~~1I ~ (220) 4410504 Email: au-baniullalafrica-union.ore https:/achpr.au.inVCJ U tel

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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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