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P'~~~~~'~ ACH PR J) African Commission on Human Rights our Collective Responsibility Human and Peoples' Rights 71. The Complainants submit that in accordanfe with the Commission's case law, there , was therefore no requirement for the First Complainant to seize the Cassation Division I I of the Federal Supreme Court in order to :rpeet the Commission's admissibility I requirements on exhaustion of domestic I L'-'_L.L'-,.>. I 72. In addition, the Complainants review could never be submit I shown that it is impossible for him to considered an effective remedy as practice I receive a fair trial in E~hiopia. In this I history of persecution he has suffered in ~)~!itghis violations he suffered in the proceedings 73. The Complainants t referred to the I further submit that/~h~>2~~ihi$~sJon " in a Communication filed against Ethiopia·fhat~~k(.:~xcep~~1 to the . .... ~. _' [applies] where the domestic situatig: , protection of the right or rights phat have . 74. The Complainants argued ,_ ,~.. tic remedies - e State::,J~~~~H~'; afford due : ··!Z:;t~1~Y'3;;-\ of law for the "g~~ly beer?v~~~fl;ted"ll. \t.~~::i~:.!::~~.;",\: . ,<~,/,_,;;...::f ":", ',< \ , ~'eCOrnn;!~~'s~~h "as wen-~s.;;Various other international human rights bodies have state' , t;jfK; exha the Respondent, Sf~t~ t~e ;'~~'porru:'rii: I le serves the purpose of giving are of the human rights violation 12;' an d reme dv y it 1 . ~':(" ;,:'.~ . '-:;~:1~"~-F:~~ >,,", '~':-, , .~':'~:.-',.-'-'t"' -'- d .f" :.6j? I 11 ACHPR, Har~g~~9iQ0c;abre-Selassi~ ~fHff.,~~;(9n1:i5ehalf of former Dergue officials) v. Ethiopia, Comm. N0301j05 (2011), par. 111. T;iie:26mifillJ:V,cationconceiried:&:grorlp of officials from Ethiopia's former Dergue regime who had been det~wed'cihd;sJ:{4~gy~ collectively for human rights abuses that occurred during the regime. The Commission endorsed the lin~',o'OJase;la.wthat found that domestic remedies have to be available, effective and sufficient to be effectiY~,rYmJdies. 'l'i\~:~,~~ftiission also stated thatfor there to be an exception to the rule on the exhaustion of domestic remedies/"tJ\~fE!must be a i?:r¢achof a right enshrined if' the Charter. In Haregewoin Gabre-Selassie the Com:IW~sion explicitly referred to the right to a fair trial enshrined under Article 7 of the Charter and held that if a':l,t,;tatedid not afford due process of law for the protection of the right then there would be an exception to the exhaustioni~;gqJlirement ! 12 ACHPR, Darfur Relief artcCOocumentation Centre v. Sudan, Comm. No. 310/05 (2009), par. 71. The communication concelih~d Sudanese men who had been unlawfully detained in military prison and the Sudanese government's renegation on its agreement to compensate them. the Court stated: 'The Commission has stated that the justification for this requirement is that a government should be aware of a human rights violation in order to have a chance to remedy such violation, thus protecting its reputation which may be tarnished by being called to plead its case before an international body. This requirement also precludes the African Cbmmission from becoming a tribunal of first instance, a function which it cannot fulfil practically or legally.'; ACHPR, Amnesty International v. Suda~eo~~'ji~Ni~L90 (1999), par. 32. The communications alleged that the goverIUl)ent was responsible for human l'igllt§?§(ol~~11j1~~~I~ ~ extrajudicial executions, arbitrary arrests and detentions since July 1989, the arrest, detention ,:,~;fordi't:t~Siti~ oup members since June 1990 and the suppression of Sudanese Christi~ns. The Commission r~{tifed that C!ne_pfthe reaS\! for the exhaustion requirement is to ensure that the government is aware of a human rights Vi~1~'tionJ;or~~w.a'~)thu1 c~ ce to remedy it. I \ ~ ,f ~~:.~ ~ C\ 17 I P age ~""."" Afri<;an~~ Union ,,', : I ' ~ '6' The African Corn Jssigrt~n ,,,,,, t:: ?J Hliman'and !t7lo~fg . d "j>J',_"--~':><:) ~igff 5 31 Bijilo Anne{ Lt!6Ut..KombP.¢fo<;;;~·gifrict, st C6<£tRegloh "6fimbia n"lt!fJ Phone: (220) 230 ~3'ENfpax~:'(g2..9J~1 05 04 Email: au:1r~Trjca-unjon.org https:/achpr.au.intJO (~a

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Communication 461/13 - Eskinder Nega Fenta and Reyoot Alemu (Represented by Media Legal Defence Initiative and Freedom Now) v. Ethiopia

ACHPR Decision

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Type of Document

Decision

Keywords

Arbitrary Arrest and Detention
Detention Facilities/Conditions
Freedom of Expression / Digital Rights
Right to Fair Trial
Right to Health
Women in prison

Case Head Notes: The First Complainant was arrested on suspicion of terrorism, five days after publishing an online column that criticized the Respondent State's 2009 Proclamation on Anti-Terrorism. The Second Complainant, despite having their sentence reduced from 14 years to five years, had the charge of participation in a terrorist organization upheld against her by the Cassation Division of the Federal Supreme Court. She also states that she was forced to return to prison, after undergoing an operation to remove tumours, during which time she experienced significant pain and discomfort. The Complainants assert that the 2009 Anti-Terrorism Proclamation, and its subsequent implementation have resulted in a significant number of prosecutions of dissenting voices in the Respondent State and that this constitutes a serious or massive violation of human rights, both dejure and defacto. The Commission found a violation of Article 7 because the Second Complainant was not promptly informed of the reason for her arrest, she was not promptly brought before a court of law, she was denied access to a lawyer from the time of her arrest to her preliminary hearing and, when she had access to lawyers, she was not permitted to hold private meetings with them. The Commission further found that Article 7 was violated because negative publicity regarding her guilt, prior to the conclusion of her trial, compromised her right to be presumed innocent, and because, for a number of the charges, she was required to prove her innocence rather than the Court being required to prove her guilt beyond a resaonsable doubt. Additionally, the Commission stated that the negative pre-trial campaign, and a statement by the Prime Minister to Parliament either did, or could have, influenced the proceedings to the detriment of the Second Complainant, and violated her right to an indepedent and impartial proceeding. The Commission found a violation of Article 9 stating that it is the responsibility of the Respondent State, and its officials and agents, to ensure that freedom of expression is respected and protected. As government officials, directly and indirectly, sent the Second Complainant death threats, contributed to the closure of her magazine, and intimidated her to stop writing articles, the Second Complainant's right to freedom of expression was violated by the Respondent State. Additionally, the Commission noted that the broad language of the Anti-Terrorism Proclamation is suceptible to arbitrary application, and affirmed that, in the present case, it did not provide a legitimate basis for restricting the Second Complainant's freedom of expression. The Commission found a violation of Article 16 as, on account of poor sanitary conditions, it did not provide the Second Complainant with conditions of detention consistent with human dignity and the highest attainable standard of health. Further, the Respondent State failed to take measures to ensure adequate and timely medical treatment, including, access to essential drugs, trained medical personnel, preventitive measures against diseases, and recognition of her specific health needs as a woman. The Commission also cited the Respondent State's non-response to the Provisional Measures that were issued to prevent irreparable harm to the Second Complainant. The Commission requested the Respondent State to pay suitable compensation to the Second Complainant (including loss of earnings and compensation for extended pain and suffering), to declare that the 2009 Anti-Terrorism Proclamation is not line with the Respondent State's obligations under international law and to amend it accordingly, and to inform the Commission of the measures being taken to implement the decision.

Country

Ethiopia

Outcome: Decided on Merits

Year Decided: Aug 2, 2022

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 9: Right to Receive Information and Free Expression
ACHPR 16: Right to Health

Rights Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 9: Right to Receive Information and Free Expression
ACHPR 16: Right to Health

Duration of Procedure

Nov 12, 2013 ~ Aug 2, 2022

Country Geolocation

Latitude: 9.145000000000001

Longitude: 40.489673

Country Geolocation (linked ACHPR Decision): Ethiopia

Primary Documents

Eskinder Nega Fenta & Reyoot Alemu (Represented by Media Legal Defence Initiative and Freedom Now) v Ethiopia.pdf
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African Human Rights CLA 2.0

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Communication 461/13 - Eskinder Nega Fenta and Reyoot Alemu (Represented by Media Legal Defence Initiative and Freedom Now) v. Ethiopia

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