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ACHPR African Commission 011 Human and Peoples' nights Human H.ights our Collective Responsiuilitv On the violation of the right to freedom of expression Article 9(2) of the African Charter provides that "Every individual shall have the right to express and disseminate his opinions within the law." 148. For greater respect of freedom of expression, it is necessary to promote individual's right to hold opinions, seek, receive and impart information and ideas without interference or restrictions of any kind."! 149. 150. In Kenneth Good v Boteioana'', the Commission noted that expression is limited to protect the rights or reputation of others, for national security, public order, health, or morals. Freedom of expression is therefore not absolute. However, in the 2002 Declaration of Principles on Freedom of Expression in Africa and expanded in the 2019 Declaration of Principles on Freedom of Expression and Access to Information in Africa made it clear that restrictions on fre'edom of expression" shall be provided by law, serve a legitimate interest and be necessary in a democratic society."73 151. In Malawi African Association and Others v Mauritania the Commission stated that 'the expression 'within the law' must be interpreted in reference to international norms',74 152. Further to the above, the Commission in Amnesty International and Others v Sudan observed that freedom of expression is essential to the development of political consciousness and participation in the public affairs of one's country" A higher degree of tolerance as well as a higher threshold are therefore expected and Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002, preamble 72 Communication 313/05:Kenneth Good v. Republic of Botswana (2010)CADHP, para. 187. 73 Declaration on Principles of Freedom of Expression in Africa, Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa, ACHPR/Res.62, 23 October 2002. 74 Communications 54/91: Malawi African Association vs /Mauritania: 61/91: Amnesty International vs/Mauritania; 98/93: Ms. Sarr Diop, Union Interafricaine des Droits de l'Homme -a~\\\B-~DfiO vs/ Mauritania: 164/97 a 196/97: Collectif des Veuves et Ayants-droit vs/~'cf~J'i~aJA~lW9S~ Association Mauritanienne des Droits de I'Homme vs/Mauritania (200)CADHP, p.~a.Ern .- ~ u'1 75 Amnesty International and Others v Sudan; also cited in Egyptian Initiative fi.IJJ' '1erso alt,' ig~.t~ d \~_ INTERIGHTS v Egypt, Communication 323/06, para 246 ~~ 'J, 71 '5!:~ ?~. All Or(',.I) of 'he Af nqan.( . V!~....'~j <i .' Union ~. The African Commissi ~ "'-..... .~ ~ L)" . ;pn~ . AIJ·IJA an and P 3·f:>--- f! (; jj?s' Rights 31 Bijilo Annex Layout, KombO., orth~~~Q~~it~egiOn Phone: (220 ~0tt\.~~~~t~Q»)l!~10504 Email: au-ba 1l:J1@~1fFiEa-unlon.or2 .vhttps:fachpr.au.intlO '" D

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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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