Previous 39 / 52 Next

,_cHPJJ (" fr) armx• � 6�!:tEfi Human ancl Peoples· Rights Human s;ghrs out Collective Respons1bil1ty Furthermore, the Commission acknowledges that the NSA of 2010, with 161. its restrictions and conditions on access to legal representation, indeed grants discretionary powers to deny individuals the right to a lawyer. This broad discretion raises concerns regarding the right to a fair trial and the ability of individuals to defend themselves effectively. It allows the NISS to potentially restrict access to legal assistance arbitrarily and without clear guidelines or safeguards of the rights of suspects or accused persons. 1 62. This situation violates Article 7(1)(c) of the African Charter, as well as the Resolution on the Right to Recourse and Fair Trial Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, and the Commission's jurisprudence. In the Zegveld and Ephrem case, the Commission · ruled that detained individuals must have prompt access to a lawyer and the ability to contact their families. Furthermore, their physical and mental health rights must be protected, and they are entitled to proper detention conditions. 51 The Commission notes that the Respondent State has shown progress in 163. making multiple amendments to the NSA of 2010, with the latest amendment taking place in 2024. 52 However, it is essential to note that these amendments have not adequately addressed the limitations or drawbacks found in the original 2010 version of the Act. As a result, the provisions and discretionary powers granted to the NISS continue to undermine the rights guaranteed by the African Charter and established principles. 164. Ensuring timely and meaningful access to legal representation for detained individuals, as well as their well-being and fair treatment during detention, is of utmost importance. Although the Commission acknowledges the willingness of the Respondent State to make amendments, it is evident that the provisions under dispute remain essentially unchanged, with only minor syntactical and non-substantive modifications. For example, Article 51(2) in the 2024 amendment states, "The Detainee has the right to inform their family or the entity they belong to of the detention and is allowed to contact their family or lawyer if it does not harm the investigation." While the wording has been slightly altered, the substantive content remains unchanged. 165. These observations highlight the need for comprehensive and substantive changes to the NSA to ensure the protection of individuals' and align with the principles of the African Charter. Mere modifications without addressing the underlying issues do not pr�,� ·�=�...... 51 n 59 above, para 55 52 Amendments were made to the NSA in 2011, 2017, 2019, 2021, 2022, and 2024 38 An Organ of U1e AfriGan ( --�, LJn 10n 'i.tr,:/ I :E I � j J ·\ z.._ \ African Commission on 31 Bijilo A n nex Lay West Coast Region, e Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: au-banjul@africa-union.org https:/achpr.au.int/0 0 a

Select target paragraph3

● ● ●

Communication 476/14 - Magdy Moustafa El- Baghdady v. Sudan

ACHPR Decision

Preview

Type of Document

Decision

Keywords

Arbitrary Arrest and Detention
Coercion / Duress
Cruel and Degrading Treatment
Damages and Compensation
Detention Facilities/Conditions
Freedom from Discrimination
Personal Liberty
Right to be Heard before a Competent Court
Right to Fair Trial
Right to Health
Right to Property
Torture and Ill Treatment

Case Head Notes: The Complainant, a British citizen, traveled from Egypt to Sudan to invest in a restaurant business, and also with the hope of venturing into a telecommunications business. Accordingly, the complainant and his friend took telecommunications equipment to Sudan, which they declared to the customs officers. In February 2011 his apartment was raided by National Intelligence and Security Services (NISS), he was accused of being a British/Israeli spy, and he was hand and foot cuffed, blindfolded and taken to an unknown location. The Complainant was interogated in Arabic even though he only speaks English and Polish, his hair was removed and, after being transfered to Kober Prison, he and his friend were severely beaten, injected with a sedative-like substance and subjected to humiliation and insults. The Complainant was denied medical attention. Shortly after being transfered to Kober Prison the Complainant, his friend, and other prisoners were subjected to a mock execution where officers placed guns at the back of their head and, upon the call of a high-ranking officer, cocked their guns as if to shoot. The Complainant stated that he and his friend were also forced to sign documents at gunpoint, which stated that they would not mention what happened at the prison. During the total of 78 days of incommunicado detention, at Kober Prison and a couple of other facilities, the Complainant suffered severe physical and psychological harm, losing approximately 37 kg of his original weight. The Complainant was found guilty, and ordered to either pay a fine of 5000 Sudanese Pounds, or return to Omdurman Prison for six months. One of the Complainant's relatives paid the fine, and the Complainant was released. The Complainant stated that he could not raise a complaint about his treatment while in Sudan as he faced threats of re-arrest and imprisonment. The Commission found a violation of Article 2 stating that the Complainant faced allegations of being a British, or Israeli spy, solely on the basis of his part-Polish heritage, with no substantial evidence to substantiate these claims. They also noted the deregatory language aimed at the Complainant's ethnic heritage, and stated that, the treatment of the Complainant, grounded in ethnic stereotypes rather than factual evidence, exemplied a discriminatory practice. The Commission found a violation of Article 5, and stated that both the incommunicado detention of the Complainant and the physical attacks against the Complainant amounted to torture. Noting that even if arrests are deemed lawful under domestic legislation, they can still be regarded as arbitrary, and thus unlawful if they are inappropriate, unreasonable, unjustified, or unpredictable, the Commission found a violation of Article 6 and stated that the absence of any prima facie evidence, or reasonable suspicion, to justify the prolonged detention of the Complainant further undermined the legitimacy of his arrest and confinement. The Commission also noted that the lack of transparency and legal justification for his continued deprivation of liberty raises questions about the adherence to fundamental principles of justice and the rule of law. The Commission found a violation of Article 7 stating that denying the Complainant access to a lawyer and court hearing, during the victim's detention, constituted a clear violation of Article 7, and that, additionally, the Complainant's prolonged detention, without being brought before a Court, signified the Respondent State's failure to ensure its obligation of ensuring a timely trial. The Commission found a violation of Article 14 stating that, not only was the search of the Complainant's belongings arbitrary, but some of the belongings of the Complainant were either not returned, or returned in a damaged condition. The Commission affirmed that this violated the Complainant's right to peacefully enjoy his property and, also, to be compensated for the damage or confiscation of his property. The Commission also stated that no information indicated that the interference with the Complainant's right to property was proportionate to a reasonable objective the Respondent State may have hoped to achieve. Noting that the Respondent State has a responsibility to ensure that prisoners have access to appropriate healthcare and essential services, the Commission found a violation of Article 16 and stated that the torture inflicted on the Complainant had a profound and detrimental impact on his pysical and psychological well-being, and that the failure to provide the Complainant with necessary healthcare further exacerbated the situation. The Commission found a violation of Article 1, as they stated that any violation of any provision in the Charter inherently constitutes a violation of Article 1 as well. The Commission declared that the Respondent State must promptly investigate and prosecute the individuals responsible for the Complainant's ordeal, that the Respondent State must assess and determine the appropriate compensation to address the harm suffered, that the Respondent State must undertake institutional reforms to ensure that individuals alleging torture can effectively pursue complaints, that the Respondent State should improve detention conditions, that the Respondent State should consider specific amendments to the National Security Act of Sudan, and that the Respondent State should report to the Commission on the measures taken to implement the decision.

Country

Sudan

Outcome: Decided on Merits

Year Decided: Aug 2, 2024

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 1: General Obligations
ACHPR 14: Right to Property
ACHPR 16: Right to Health
ACHPR 2: Freedom from Discrimination
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest

Rights Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 1: General Obligations
ACHPR 14: Right to Property
ACHPR 16: Right to Health
ACHPR 2: Freedom from Discrimination
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest

Duration of Procedure

Oct 25, 2013 ~ Aug 2, 2024

Country Geolocation

Latitude: 12.862807

Longitude: 30.217636

Country Geolocation (linked ACHPR Decision): Sudan

Primary Documents

Magdy Moustafa El-Baghdady v Sudan.pdf
English
ML TOC
Download View

African Human Rights CLA 2.0

Select target paragraph3

Communication 476/14 - Magdy Moustafa El- Baghdady v. Sudan

Primary Documents

Notifications