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368/09 Abdel Hadi, Ali Radi & Others v Sudan

Décision de la CADHP

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Table des matières

Summary of the Complaint1
Articles Alleged to Have Been Violated2
Prayers of the Complainant2
Procedure2
The Law on Admissibility3
The Complainants' Submissions on Admissibility3
Respondent State's Submissions on Admissibility4
The Commission's Analysis on Admissibility4
Decision of the Commission on Admissibility6
Merits6
Complainant's Submissions on the Merits6
Alleged Violation of Article 56
Alleged Violation of Article 67
Alleged Violation of Article 77
Alleged Violation of Article 17
The Commission's Decision on the Merits8
Alleged Violation of Article 56
Alleged Violation of Article 69
Alleged Violation of Article 79
Alleged Violation of Article 110
Decision of the Commission on the Merits10

368/09 Abdel Hadi, Ali Radi & Others v Sudan

Décision de la CADHP

Aperçu

Type de Document

Décision
Jugement

Mots clés

Administration de la justice
Arrestation et détention arbitraire
Déplacement interne
Dommages-intérêts
Droit à la vie
Droit à un procès équitable
Expulsion forcée
Liberté de la personne
Réparations / Recours
Torture et mauvais traitement
VBG
Violations résultant de la guerre et des opérations militaires

Case Head Notes: The Communication dated 19 January 2009, was submitted by Ali Agab of Khartoum Centre for Human Rights and Environmental Development (KCHRED) of Sudan and the Redress Trust of London, the United Kingdom (the Complainants), on behalf of Abdel Hadi Ali Radi, Omar Haroun, Abdelmagid Ali Adam Haroun, Ali Daoud Adam Yahia, Mariam Abakar Ali Omar and 83 other individuals (the Victims). The Complaint is brought against the Republic of Sudan (Respondent State).

Pays

Soudan

Résultats: Décidé sur le fond

Année de la Décision: 5 nov. 2013

Violations alléguées (dispositions de la CADHP)

CADHP 1: Obligations générales
CADHP 5 : Traitements cruels, inhumains et dégradants
CADHP 6 : Droit à la liberté de la personne et à la protection contre l'arrestation arbitraire
CADHP 7 : Droit à un procès équitable

Droits violés (dispositions de la CADHP)

CADHP 1: Obligations générales
CADHP 5 : Traitements cruels, inhumains et dégradants
CADHP 6 : Droit à la liberté de la personne et à la protection contre l'arrestation arbitraire
CADHP 7.1.c : Droit à la défense
CADHP 7.1.d : Droit d'être jugé dans un délai raisonnable par un tribunal impartial

Durée de la procédure

19 janv. 2009 ~ 5 nov. 2013

Géolocalisation du Pays

Latitude: 12.862807

Longitude: 30.217636

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

Documents principaux

368_09 Abdel Hadi, Ali Radi & Others v Republic of Sudan.pdf
English
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African Charter on Human and Peoples' Rights

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. Article 6Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained. 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.

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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

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African Charter on Human and Peoples' Rights

Article

Treaty

African Charter on Human and Peoples' Rights

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

Décision de la CADHP

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

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

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

Article 6Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained. 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.

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African Charter on Human and Peoples' Rights

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African Charter on Human and Peoples' Rights

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

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African Charter on Human and Peoples' Rights

3Article 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.

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

275/03 Article 19 v Eritrea

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

245/02 Zimbabwe Human Rights NGO Forum v Zimbabwe

Décision de la CADHP

323/06 Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt

Décision de la CADHP

Communication 279/03-296/05 - Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) c. Soudan

Décision de la CADHP

African Charter on Human and Peoples' Rights

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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 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

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

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

Communication 279/03-296/05 - Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) c. Soudan

Décision de la CADHP

African Charter on Human and Peoples' Rights

Treaty

Principles and Guidelines on the right to Fair Trail and Legal Assistance in Africa

Droit mou de la CADHP

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

Principles and Guidelines on the right to Fair Trail and Legal Assistance in Africa

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

Treaty

Principles and Guidelines on the right to Fair Trail and Legal Assistance in Africa

Droit mou de la CADHP

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 tribuna

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

Rule 112 Follow-up on the recommendations of the CommissionAfter the consideration of the 1. Commission’s Activity Report by the Assembly, the Secretary shall notify the parties within thirty (30) days that they may disseminate the decision. In the event of a decision against a 2. State Party, the parties shall inform the Commission in writing, within one hundred and eighty (180) days of being informed of the decision in accordance with paragraph one, of all measures, if any, taken or being taken by the State Party to implement the decision of the Commission.

Droit mou de la CADHP

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

Droit mou de la CADHP

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

32. A remedy is considered available if the petitioner can pursue it without impediment, it is deemedeffective if it offers a prospect of success, and it is found sufficient if it is capable of redressing thecomplaint

Décision de la CADHP

71/92 : Rencontre Africaine pour la Défence des Droits de l'Homme (RADDHO) v Zambia

10. The rule requiring the exhaustion of local remedies as a condition of the presentation of an international claim is founded upon, amongst other principles, the contention that the respondent state must first have an opportunity to redress by its own means within the framework of its own domestic legal system, the wrong alleged to have been done to the individual.

Décision de la CADHP

275/03 Article 19 v Eritrea

72.However, as regards the continuous incommunicado detention of the detainees, the African Commission would like to note the State Party’s acknowledgement that the victims are still being held in detention because of the poor state of the criminal justice system in the country. With respect to this argument by the State Party, the African Commission notes that whenever there is a crime that can be investigated and prosecuted by the State on its own initiative, the State has the obligation to move the criminal process forward to its ultimate conclusion. In such cases, one cannot demand that the Complainants, or the victims or their family members assume the task of exhausting domestic remedies when it is up to the State to investigate the facts and bring the accused persons to court in accordance with both domestic and international fair trial standards.

Décision de la CADHP

275/03 Article 19 v Eritrea

77.Another rationale for the exhaustion requirement is that a government should have notice of a human rights violation in order to have the opportunity to remedy such violation, before being called to account by an international tribunal. The African Commission is of the view that the State has had ample time and notice of the alleged violation to at least charge the detainees and grant them access to legal representation. However, if it is shown that the State has had ample notice and time within which to remedy the situation, even if not within the context of the domestic remedies of the State, as is the case with the present communication, the State may still be said to have been properly inform[ed] and is expected to have taken appropriate steps to remedy the violation alleged. The fact that the State of Eritrea has not taken any action means that domestic remedies are either not available or if they are, not effective or sufficient to redress the violations alleged.78.The African Commission would like in this regard to refer to its decision in Communication 18/8817 which concerned the detention and torture of the Complainant for more than seven years without charge or trial, the denial of food for long periods, the blocking of his bank account, and the use of his money without his permission. The African Commission held that in such circumstances it is clear that the State has had ample notice of the violations and should have taken steps to remedy them. The African Commission would also like to restate the position taken in communication250/2002.18. In that communication, the African Commission was of the view that the situation as presented by the Respondent State does not afford due process of law for protection of the rights that have been alleged to be violated; the detainees have been denied access to the remedies under domestic law and have thus been prevented from exhausting them. Furthermore, there has been unwarranted delay in bringing these detainees to justice.

Décision de la CADHP

87/93 - Constitutional Rights Project (in respect of Zamani Lakwot and six others) v Nigeria

Décision de la CADHP

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

31. The rationale of the local remedies rule both in the Charter and other international instruments is toensure that before proceedings are brought before an international body, the State concerned must havehad the opportunity to remedy the matter through its own local system. This prevents the Commission fromacting as a court of first instance rather than a body of last resort.1 Three major criteria could be deducedfrom the practice of the Commission in determining this rule, namely: the remedy must be available,effective and sufficient.32. A remedy is considered available if the petitioner can pursue it without impediment, it is deemedeffective if it offers a prospect of success, and it is found sufficient if it is capable of redressing thecomplaint.

Décision de la CADHP

245/02 Zimbabwe Human Rights NGO Forum v Zimbabwe

180. The UN Fact Sheet No.11 provides that the "situations of extrajudicial, summary or arbitraryexecution" which the Special Rapporteur is requested to examine include all acts and omissions of Staterepresentatives that constitute a violation of the general recognition of the right to life embodied in theUniversal Declaration of Human Rights and the International Covenant on Civil and Political Rights.66 Thisview is also supported by the Declaration on the Right and Responsibility of Individuals, Groups andOrgans of Society to Promote and Protect Universally Recognized Human Rights and FundamentalFreedoms which stresses that the prime responsibility and duty to promote and protect human rights andfundamental freedoms lie with the State.67 This is in line with Article 1 of the Convention against Tortureand Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that " the term "torture"means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on aperson for such purposes as obtaining from him or a third person information or a confession, punishinghim for an act he or a third person has committed or is suspected of having committed, or intimidating orcoercing him or a third person, or for any reason based on discrimination of any kind, when such pain orsuffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official orother person acting in an official capacity...".

Décision de la CADHP

Communication 334/06 - Egyptian Initiative for Personal Rights & Interights c. Égypte

162.Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment (CAT)hasdefined torture as:84See Articles 126 and 127 of the Penal Code. 48“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”85

Décision de la CADHP

Communication 334/06 - Egyptian Initiative for Personal Rights & Interights c. Égypte

168.It is a wellestablishedprinciple of international human rights law, that when a person is injured in detention or while under the control of security forces, there is a strongpresumption that the person was subjected to torture or ill-treatment. As the European Court of Human Rights has recently noted: 86See above, n. 77and accompanying text.87Ibid. Formatted:Font:Bold 50Where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment [...]. It is incumbent on the State to provide a plausible explanation of how the injuries were caused, failing which a clear issue arises under Article 3 of the Convention [...].88

Décision de la CADHP

Communication 279/03-296/05 - Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) c. Soudan

156.Torture thus constitutes the intentional and systematic infliction of physical or psychological pain and suffering in order to punish, intimidate or gather information. It is a tool for discriminatory treatment of persons or groups of person who are subjected to the torture by the State or non-state actors at the time of exercising control over such person or persons. The purpose of torture is to control populations by destroying individuals, their leaders and frightening entire communities.

Décision de la CADHP

Communication 153/96 - Constitutional Rights Project c. Nigeria

18.The Review Panel cannot be considered a competent national organ. Since it appears that the right to file for habeas corpus is also closed to the accused individuals, they have been denied their rights under Article 7(1)(a).

Décision de la CADHP

64/92-68/92-78/92_8AR : Krishna Achuthan (on behalf of Aleke Banda),Amnesty International (on behalf of Orton and Vera Chirwa), Amnesty International (on behalf of Orton and Vera Chirwa) / Malawi

9.Mr Banda was not allowed recourse to the national courts to challenge the violation of his fundamental right to liberty as guaranteed by Article 6 of the African Charter and the constitution of Malawi. Furthermore, Aleke Banda was detained indefinitely without trial. The Commission finds that Mr Banda’s imprisonment violated Article 7 paragraph 1(a) and (d) of the African Charter.

Décision de la CADHP

206/97 Centre for Free Speech v Nigeria

18. Unfortunately, the Government of Nigeria has not responded to the several requests from theCommission to react to the communication. The African Commission on several previous decisions has setout the principle that where allegations of human rights violations go uncontested by the governmentconcerned, particularly after repeated notifications or requests for information on the case, the Commissionmust decide on the facts provided by the Complainant and treat those facts as given (see communicationsNos. 59/91, 60/91, 64/92, 87/93 and 101/93).

Décision de la CADHP

225/98 Huri - Laws v Nigeria

46. The refusal and/or negligence on the part of the Respondent State to bring Messrs. Ifowodo and Agbakoba promptly before a judge or other judicial officer for trial is therefore a violation of Article 7 (1) (d) of the Charter. This is also in violation of Article 26 which stipulates: State parties to the present Charter shall have the duty to guarantee the independence of the courts and shall allow the establishment and improvement of appropriate nat ional inst itutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.

Décision de la CADHP

275/03 Article 19 v Eritrea

99.The existence of war in Eritrea cannot therefore be used to justify excessive delay in bringing the detainees to trial. Furthermore, a backlog of cases awaiting trial cannot excuse unreasonable delays, as the European Court of Human Rights has held.29 Further, in the case of Albert Mukong, referred to above, the Human Rights Committee stated that States Parties to the ICCPR must observe certain minimum standards as regards the condition of detention, regardless of their state of development. The Commission considers that the same principle applies to the length of detention before trial, and that states parties to the Charter cannot rely on the political situation existing within their territory or a large number of cases pending before the courts to justify excessive delay.100.Moreover, the detainees are being held incommunicado, and have never been brought before a judge to face charges. In these circumstances, the Commission finds that Eritrea has breached the requirement of trial within a reasonable time set out in Article 7.1.d. This is consonant with its previous decisions, such as communication 102/93 30, in which 3 years detention was found to be unacceptable, and communication 103/93 31, in which the Commission stated that 7 years detention without trial, “clearly violates the ‘reasonable time’ standard stipulated in the Charter.”

Décision de la CADHP

Communication 279/03-296/05 - Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) c. Soudan

Décision de la CADHP

224/98 Media Rights Agenda and Others v Nigeria

71.It is worth noting that the term ‘cruel, inhuman or degrading treatment or punishment’ is to be interpreted so as to extend to the widest possible protection against abuses, whether physical or mental.

Décision de la CADHP

Communication 241/01 - Purohit & Moore c. Gambie

64.Article 6 of the African Charter guarantees every individual, be they disabled or not, the right to liberty and security of the person. Deprivation of such liberty is only acceptable if it is authorised by law and is compatible with the obligations of States Parties under the African Charter12. However, the mere mention of the phrase ‘except for reasons and conditions previously laid down by law’ in Article 6 of the African Charter does not mean that any domestic law may justify the deprivation of such persons’ freedom and neither can a State party to the African Charter avoid its responsibilities by recourse to the limitations and claw back clauses in the African Charter13. Therefore, any domestic law that purports to violate this right should conform to internationally laid down norms and standards.65.Article 6 of the African Charter further states that no one may be arbitrarily arrested or detained. Prohibition against arbitrariness requires among other things that deprivation of liberty shall be under the authority and supervision of persons procedurally and substantively competent to certify it.

Décision de la CADHP

224/98 Media Rights Agenda and Others v Nigeria

43.In itsResolution on the Right to Recourse Procedure and Fair Trial, the Commission had, in expounding on the guarantees of the right to fair trial under the Charter observed thus:... the right to fair trial includes, among other things, the following: (b) Persons who are arrested shall be informed at the time of arrest, in a language which they understand of the reason for their arrest and shall be informed promptly of any charges against them;

Décision de la CADHP

Communication 241/01 - Purohit & Moore c. Gambie

27.The Respondent State concedes that the [LDA] does not contain any provisions for the review or appeal against an order of detention or any remedy for detention made in error or wrong diagnosis or treatment. Neither do the patients have the legal right to challenge the two separate medical certificates, which constitute the legal basis of their detention.

Décision de la CADHP

Communication 279/03-296/05 - Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) c. Soudan

227.The African Commission concludes further that Article 1 of the African Charter imposes a general obligation on all State parties to recognise the rights enshrined therein and requires them to adopt measures to give effect to those rights. As such any finding of violation of those rights constitutes violation ofArticle 1.

Décision de la CADHP

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