Decision of the African Commission on request by the Respondent State to dismiss the communication th 83. The present communication was declared admissible at the 36 Ordinary Session of the African rd th Commission’s held in Dakar, Senegal from 23 November to 7 December 2004. In response to the African Commission’s request for written submissions on the merits, the Respondent State in a Note th Verbale dated 27 January 2005 wrote requesting the African Commission to dismiss the communication. The Respondent State’s grounds for such dismissal were that:• • One of the 18 journalists in this matter had been the subject of another communication – communication 250/2002which the African Commission had already disposed of. The Respondent State therefore argued that dealing with that person in this matter constitutes double jeopardy; The Complainant had appeared before the African Commission only once despite repeated requests to ‘face and question the accuser – a legal right which was denied them’…by the African Commission. 84. In dealing with the Respondent State’s request that the communication be dismissed the African Commission noted that1995 Rules of Procedure of the African Commission on Human and Peoples' Rights, Article 118.2 stipulate that: If the Commission has declared a communication inadmissible under the Charter, it may reconsider this decision at a later date if it receives a request for reconsideration… 85. No provision is made therein for the African Commission to dismiss a matter after having declared it admissible. In any case, the victims who are the subject of this communication are still being held in incommunicado detention by the Respondent State and are accordingly unable to access domestic remedies whether on their own or through legal representatives. It is for these reasons that the African Commission has decided not to dismiss the communication and will therefore consider it on the merits. Decision on the Merits 86. The African Commission will not deal with any issue already decided upon in communication 250/2002 . 87. Eritrea submits that the acts alleged were undertaken “against a backdrop of war when the very existence of the nation was threatened” and that, as a result, the Government was “duty bound to take necessary precautionary measures (and even suspend certain rights).” However, unlike other human 21 22 rights instruments, and as emphasised in communication 74/92 , the African Charter does not allow States Parties to derogate from it in times of war or other emergency. The existence of war, international or civil, or other emergency situation within the territory of a State party cannot therefore be used to justify violation of any of the rights set out in the Charter, and Eritrea’s actions must be judged according to the Charter norms, regardless of any turmoil within the State at the time. 88. The Complainant alleges, and Eritrea does not deny, that 11 political dissidents and 18 journalists have been detained, incommunicado and without trial, since September 2001. It is also alleged by the Complainant, and admitted by the Respondent State, that private newspapers were banned from September 2001. Although Eritrea maintains that this ban was temporary, it is not clear from the information available whether or when the ban was lifted. 89. The basic facts are not therefore in dispute. However, the versions of the parties vary as regards the motivation for the detention of the individuals concerned and the ban on the press. According to the Complainant the arrests were due to the detainees having expressed their opinions and spoken out against the Government; the Respondent State on the other hand claims that the 11 political opponents were arrested for breaching Articles 259 (attacks on the independence of the State), 260 (impairment of the defence powers of the State) and 261 (high treason) of the Transitional Penal Code of Eritrea. As regards the ban on the press and the detention of the 18 journalists, the Respondent