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Communication 277/2003 - Spilg and Mack & DITSHWANELO (au nom de Lehlohonolo Bernard Kobedi) c. Botswana

Décision de la CADHP

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Table des matières

Summary of Facts1
Complaint3
Procedure3
Submissions on Locus Standi10
Respondent State’s Submissions on Locus Standi10
Complainants’ Submissions on Locus Standi12
African Commission’s Ruling on the Preliminary Determination on Locus Standi 14
The Law on Admissibility19
Complainants’ Submissions on Admissibility 19
Respondent State’s Submissions on Admissibility21
Submissions on the Merits27
Complainants’ Submissions on the Merits28
Respondent State’s Submissions on the Merits34
The Commission’s Decision on the Merits38
Decision of the African Commission on Alleged Procedural Irregularity39
Decision of the African Commission on the Substantive Claim 41

Communication 277/2003 - Spilg and Mack & DITSHWANELO (au nom de Lehlohonolo Bernard Kobedi) c. Botswana

Décision de la CADHP

Aperçu

Type de Document

Décision

Mots clés

Arrestation et détention arbitraire
Brutalités et infractions policières
Droit à la dignité
Droit à la santé
Droit à la vie
Droit à un procès équitable
Droit d'être entendu par un tribunal compétent
Égalité devant la loi
Fausse incarcération
Justice transitionnelle
Législation nationale
Liberté de la personne
Lutte contre la discrimination
Mesures provisoires
Meurtre/assassinat
Opérations des milices / Conflits armés
Peine de mort
Torture et mauvais traitement
Traitement cruel et dégradant
Violations des droits de l'homme

Case Head Notes: The Complainants allege that on the 14 October 1998, Kobedi was convicted and sentenced to death by the High Court of Botswana for murder of a Sergeant of the Police force of Botswana – Sgt. Kebotsetswe Goepamang on 22 May 1993.

Pays

Botswana

Résultats: Décidé sur le fond

Année de la Décision: 16 déc. 2011

Violations alléguées (dispositions de la CADHP)

ACHPR 3.2 : Protection égale de la loi
CADHP 2 : Liberté de ne pas subir de discrimination
CADHP 4 : Droit à la vie et à l'intégrité
CADHP 5 : Traitements cruels, inhumains et dégradants
CADHP 7 : Droit à un procès équitable

Droits violés (dispositions de la CADHP)

CADHP 5 : Traitements cruels, inhumains et dégradants

Droits non violés (dispositions de la CADHP)

CADHP 2 : Liberté de ne pas subir de discrimination
CADHP 3 : Droit à l'égalité devant la loi et à l'égale protection de la loi
CADHP 4 : Droit à la vie et à l'intégrité
CADHP 7.1.d : Droit d'être jugé dans un délai raisonnable par un tribunal impartial

Durée de la procédure

18 juil. 2003 ~ 16 déc. 2011

Géolocalisation du Pays

Latitude: -22.328474

Longitude: 24.684866

Géolocalisation du Pays (Lié Décision de la CADHP): Botswana

Documents principaux

achpreos10_277_03_eng.pdf
English
Télécharger Vue

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 5Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. Article 5Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

African Charter on Human and Peoples' Rights

Article 71.Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defense, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 2.No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

Treaty

African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

Article 2Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. 3Article 31.Every individual shall be equal before the law. 2.Every individual shall be entitled to equal protection of the law.

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

cle 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. Article 5Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

Article 56Communications relating to human and peoples' rights referred to in 55 received by the Commission, shall be considered if they: 1.Indicate their authors even if the latter request anonymity, 2.Are compatible with the Charter of the Organization of African Unity or with the present Charter, 3.Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, 4.Are not based exclusively on news discriminated through the mass media, 5.Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, 6.Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and 7.Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.

Treaty

African Charter on Human and Peoples' Rights

Treaty

Communication 670/17 - Fadhl Al Mawla Husni Ahmed Ismail & 19 Autres (Représentés par Freedom and Justice Party of Egypt) c. Égypte

Communication 277/2003 - Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v. Botswana (2013) ACHPR paras 73-74

Décision de la CADHP

Communication 670/17 - Fadhl Al Mawla Husni Ahmed Ismail & 19 Autres (Représentés par Freedom and Justice Party of Egypt) c. Égypte

"simply requires that the Communication indicate its author(s), even if they would like to remain aponymous. This provision does not specify, which parties have standing before the African Commission."1

Décision de la CADHP

African Charter on Human and Peoples' Rights

Treaty

Communication 670/17 - Fadhl Al Mawla Husni Ahmed Ismail & 19 Autres (Représentés par Freedom and Justice Party of Egypt) c. Égypte

para 79.

Décision de la CADHP

Communication 670/17 - Fadhl Al Mawla Husni Ahmed Ismail & 19 Autres (Représentés par Freedom and Justice Party of Egypt) c. Égypte

para 81

Décision de la CADHP

Communication 670/17 - Fadhl Al Mawla Husni Ahmed Ismail & 19 Autres (Représentés par Freedom and Justice Party of Egypt) c. Égypte

DJTSHWANELO case:1

Décision de la CADHP

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Article 31.Every individual shall be equal before the law. 2.Every individual shall be entitled to equal protection of the law. Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. Article 5Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

African Charter on Human and Peoples' Rights

Article 1The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them.Article 2Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

15Article 56Communications relating to human and peoples' rights referred to in 55 received by the Commission, shall be considered if they: 1.Indicate their authors even if the latter request anonymity, 2.Are compatible with the Charter of the Organization of African Unity or with the present Charter, 3.Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, 4.Are not based exclusively on news discriminated through the mass media, 5.Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, 6.Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and

Treaty

African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

7.Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.

Treaty

African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

rticle 551.Before each Session, the Secretary of the Commission shall make a list of the communications other than those of States parties to the present Charter and transmit them to the members of the Commission, who shall indicate which communications should be considered by the Commission. 2.A communication shall be considered by the Commission if a simple majority of its members so decide

Treaty

African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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Rules of Procedure of the African Commission on Human and People's Rights

ule 104 Legal aidThe Commission may, either at 1. the request of the author of the communication or at its own initiative, facilitate access to free legal aid to the author in connection with the representation of the case;Free legal aid shall only be 2. facilitated where the Commission is convinced:That it is essential for the proper a. discharge of the Commission’s duties, and to ensure equality of the parties before it; andThe author of the Communication b. has no sufficient means to meet all or part of the costs involved;In case of urgency or when the 3. Commission is not in session, its Chairperson may exercise the powers conferred on the Commission by this Rule. As soon as the Commission is in session, any action that has been taken under this paragraph shall be brought to its attention for confirmation.Part Three : Protection Activities

Droit mou de la CADHP

African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

2.Are compatible with the Charter of the Organization of African Unity or with the present Charter

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Constitutive Act of the African Union

Article 4PrinciplesThe Unionshallfunctionin accordancewith the following principles:(a)sovereignequalityand interdependence among MemberStatesofthe Union;(b) respect of borders existing on achievement of independence;(c)participationofthe African peoplesin theactivitiesoftheUnion;(d)establishmentofacommondefencepolicy for the AfricanContinent;l--------------------------------------------------------------

Treaty

Communication 266/03 - Kevin Mgwanga Gunme et al c. Cameroun

Décision de la CADHP

260/02 Bakweri Land Claims Committee v Cameroon

Décision de la CADHP

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

4.Are not based exclusively on news discriminated through the mass media,

Treaty

African Charter on Human and Peoples' Rights

Article 551.Before each Session, the Secretary of the Commission shall make a list of the communications other than those of States parties to the present Charter and transmit them to the members of the Commission, who shall indicate which communications should be considered by the Commission. 2.A communication shall be considered by the Commission if a simple majority of its members so decide.

Treaty

Communication 670/17 - Fadhl Al Mawla Husni Ahmed Ismail & 19 Autres (Représentés par Freedom and Justice Party of Egypt) c. Égypte

Communication 277 /2003 -Spilg and Mack & 0/TSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v. Botswana (2011) ACHPR para 106.

Décision de la CADHP

147/95_149/96 Sir Dawda K. Jawara v Gambia (The)

Décision de la CADHP

Communication 670/17 - Fadhl Al Mawla Husni Ahmed Ismail & 19 Autres (Représentés par Freedom and Justice Party of Egypt) c. Égypte

Communication 277 /2003 -Spilg and Mack & 0/TSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v. Botswana (2011) ACHPR para 106.

Décision de la CADHP

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

5.Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

4.Are not based exclusively on news discriminated through the mass media, 5.Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, 6.Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

.Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter

Treaty

40/90 Bob Ngozi Njoku v Egypt

Décision de la CADHP

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

rticle 71.Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defense, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 2.No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

Treaty

Rules of Procedure of the African Commission on Human and People's Rights

Rule 119 Admissibility under Article 6 of the ProtocolWhere, pursuant to Article 6 of 1. the Protocol, the Commission is requested to give its opinion, on the admissibility of a communication pending before the Court or where the Court has transferred a communication to the Commission, it shall consider the admissibility of this matter in accordance with Article 56 of the Charter and Rules 105, 106 and 107 of the present Rules. Upon conclusion of the examination 2. of the admissibility of the communication referred to it under Article 6 of the Protocol, the Commission shall immediately transmit its opinion or its decision on the admissibility to the Court.

Droit mou de la CADHP

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

2Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status

Treaty

African Charter on Human and Peoples' Rights

Article 31.Every individual shall be equal before the law. 2.Every individual shall be entitled to equal protection of the law.

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this righ

Treaty

African Charter on Human and Peoples' Rights

Treaty

Pacte International relatif aux Droits Civils et Politiques

Article 61. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant

Document de l'ONU

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

(d) the right to be tried within a reasonable time by an impartial court or tribunal.

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

rticle 2Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.

Treaty

African Charter on Human and Peoples' Rights

Article 31.Every individual shall be equal before the law. 2.Every individual shall be entitled to equal protection of the law

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Article 31.Every individual shall be equal before the law. 2.Every individual shall be entitled to equal protection of the law.

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Article 60The Commission shall draw inspiration from international law on human and peoples' rights, particularly from the provisions of various African instruments on human and peoples' rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples' rights as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the present Charter are members.

Treaty

Interights & Ditshwanelo v. The Republic of Botswana

Communication 277/03

Décision de la CADHP

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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Communication 240/01 - Interights et al. (au nom de Mariette Sonjaleen Bosch) c. Botswana

Décision de la CADHP

African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

(b) the right to be presumed innocent until proved guilty by a competent court or tribunal

Treaty

African Charter on Human and Peoples' Rights

icle 71.Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defense, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 2.No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 5 Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of ma n particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

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