AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS v. LIBYA

(c) Nonso Robert Attoh

AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS

v.

LIBYA 

APPLICATION 002/2013
[2016] 1 RCACHPR (Part 6) 72

COMPOSITION OF THE COURT

1.      Augustino S. L. RAMADHANI - President; 

2.      Elsie N. THOMPSON - Vice-President; 

3.      Gérard NIYUNGEKO – Judge

4.      Fatsah OUGUERGOUZ - Judge

5.      Duncan TAMBALA - Judge 

6.      Sylvain ORÉ - Judge

7.      El Hadji GUISSÉ - Judge 

8.      Ben KIOKO - Judge

9.      Rafåa BEN ACHOUR - Judge

10.  Solomy B. BOSSA - Judge

11.   Angelo V. MATUSSE - Judge; 

12.   Robert ENO, Registrar, 

3rd June 2016

PROCEDURE – Judgment in default – Rule 55 of the Rules of Court – Its requirement that the defaulting
party has been duly served with the Application and all other documents
relevant to the proceedings was met in this case – As the Applicant and the
Court Registry communicated all the pleadings to the Respondent state – And the
Respondent failed to present its defense.


JURISDICTION – Personal Jurisdiction – The Court has personal jurisdiction to examine the
case – As the applicant is the African Commission on Human Rights – One of the
entities authorized to submit cases before the Court – And the Respondent is
Libya – which has ratified both the Charter and the Protocol.

JURISDICTION – Personal Jurisdiction- Even though the complained act of detention – is by a
“revolutionary brigade” in Libya – Libya, the respondent State – which has an
obligation to take measures in its territory to ensure the application of the
laws guaranteed under the Charter – Is responsible for the “Revolutionary
Brigades” acts and omissions – Under principles of responsibility of states for
internationally wrongful acts.

JURISDICTION – Personal Jurisdiction – Where the African Commission on Human and Peoples’
Rights – brings a case before the African Court – the question whether the
respondent state has made a declaration accepting the competence of the Court –
as stipulated under article 34(6) of the Protocol – does not arise – Such
declaration is only applicable where individuals or NGO’s bring cases before
the Court.

JURISDICTION – Material Jurisdiction – By virtue of Article 3(1) of the Protocol of the
Court – the material jurisdiction of the Court extends to all cases and disputes
submitted to the Court – concerning the interpretation and application of the
Charter, Protocol and other relevant human rights instrument – ratified by the
concerned state - Thus an allegation by the Applicant of violation by the Respondent
State of Articles 6 and 7 of the Charter- falls within the material
jurisdiction of the Court.

JURISDICTION -Temporal Jurisdiction – the relevant dates to be considered in the instant case
– are the dates of entry into force of the Charter and Protocol - with respect
to the respondent state – Since the purported detention occurred after the
entry into force of the Protocol – the court has temporal jurisdiction.

JURISDICTION – Territorial Jurisdiction – The facts of the case occurred in the territory under
authority of Libya – And both the Charter and the Protocol are in force with
respect to Libya at the time of the alleged act of detention – Thus the Court
has territorial jurisdiction to examine the case.

JURISDICTION – Conditions for Admissibility of an Application -  Article 56 of the African Charter and Rule 40
of the Rules of Court - the conditions regarding the identity of Applicants -
the Application's compatibility with the Constitutive Act of the African Union
and the Charter - the language used in the Application - the nature of the
evidence and the principle of non bis in idem - 
were not in dispute and has been met in the instant case



JURISDICTION – Conditions for admissibility of an application – Exhaustion of local remedies – Despite the
provisions of the Libyan Criminal Procedure Code - which make it a right for a Detainee to
complain about his/her detention - in practice, the accessibility and effectiveness of the said measures were questionable.



JURISDICTION
– Conditions for admissibility of an application – Exhaustion of local remedies
– From the facts of the case - the secret detention - isolation by the
revolutionary brigade - the fact of not having access to a counsel or to a
judge during the procedures for extension of his detention – made it impossible
for the detainee - to use the provisions applicable in seeking a remedy – and
thus was unable to avail himself of the said remedies even when they were
available. 

JURISDICTION – Conditions for admissibility of an application – Exhaustion of local remedies
– it was impossible for the detainee - to fulfil the condition regarding
exhaustion of local remedies – as he was prevented from legally seeking local
remedies as prescribed by Libyan law – by the fact that - he was first arraigned
before a special court which was later declared unconstitutional by the Supreme
Court of Libya – and was being detained in a secret location by a revolutionary
brigade -and completely isolated from his friends and family - without access
to a lawyer of his choice and – was sentenced to death in absentia.

JURISDICTION – Conditions for admissibility of an application – Exhaustion of local remedies
– the requirement to exhaust local remedies is not strictly applicable in this
case – As such local remedies are not available and are not effective – And the
detainee did not have the possibility of using the said remedies – thus the
Applicant cannot be expected to exercise such a remedy before bringing the case
before the Court.

JURISDICTION – Conditions for admissibility of an application – Article 40(6) of the Rules
of Court – Filing of Application within a reasonable time – Filing the
application praying the Court to issue Provisional measures against the
Respondent State – within a period of one year following the firm conclusion
that the Respondent State has not complied with the Provisional Measures
ordered by the Commission – is a reasonable period of time.



HUMAN RIGHTS – Rights that cannot be derogated from – rights defined by Articles 6 and 7 of
the ICCPR – are rights that cannot be derogated from - no matter the prevailing
situation – despite the exceptional political and security situation in Libya –
the State is internationally responsible – for ensuring compliance with – and
guaranteeing those rights

HUMAN RIGHTS – Right to Liberty - Deprivation of liberty - is permitted only when it is in
conformity with procedures established by domestic legislation - which
procedures should be consistent with international human rights standards –
thus deprivation of liberty must meet a number of minimum guarantees commonly
enshrined in international human rights instruments - in particular in Article
9 of the ICCPR.

HUMAN RIGHTS – Right to liberty and security of the person - Deprivation of liberty -
Incommunicado detention constitutes in itself a gross violation of human rights
- that can lead to other violations such as torture, ill treatment or
interrogation without appropriate due process safeguards - detention
incommunicado for seven days - and the restrictions on the exercise of the
right of habeas corpus - constitute violations of article 9 of the Covenant.

HUMAN RIGHTS – Right to liberty and security of the person –
Article 6 of the African Charter – Incommunicado detention and detention in
isolation of the accused – and the numerous extensions of the detention in his
absence - and without the assistance of a lawyer of his choice to challenge
every extension of that detention - constitute a violation of his right to
liberty and to the security of his person.

HUMAN RIGHTS – Fundamental Human Right to a fair trial – Article 14(1) ICCPR – this right
implies - that every individual accused of a crime or an offence shall receive
all the guarantees under the procedure and afforded the right of defence.

HUMAN RIGHTS – Fundamental Human Right to a fair trial – Article 14(1) ICCPR - the Detainee
was not afforded the minimum guarantees of a fair trial - at the time of his
arrest -  during the period of his detention - and at the time he was convicted – in that – he was arraigned in
the first instance before an extra-ordinary court – which was later declared
unconstitutional by the Supreme Court of Libya – he was detained at a secret
location - completely isolated from his family and friends - without access to
a counsel of his choice or to his family and friends – And he was sentenced to
death in absentia.

HUMAN RIGHTS – Fundamental Human Right to a fair trial – Article 14(1) ICCPR - the right to
be promptly arraigned before a judicial authority – which entails that every
individual arrested or detained for a criminal offence - should be brought with
minimum delay before a judge or any other authority entitled by law to exercise
judicial function -  and should be tried within a reasonable time or set free - was not respected by the Libyan
Government – in that - the Detainee was first arraigned before an
extra-ordinary Court and subsequently condemned to death by an unknown tribunal.



HUMAN RIGHTS – Article 7(1)(c) of the African Charter – the right to defence including the
right to be assisted by a lawyer of his own choice – should be afforded every
accused or detained person – And should be exercised at every stage of a
criminal procedure. 

HUMAN RIGHTS – Article 7(1)(c) of the African Charter – the right to defence – has the
following implications - that the Detainee has the right to communicate with
his counsel and have adequate time and facilities to prepare his/her defence - The accused or Detainee may
not be tried without his or her counsel being notified of the trial date and of
the charges levelled against him or her in time to allow for adequate
preparation of a defence - The accused has a right to adequate time for
preparation of a defence commensurate with the nature of the proceedings and
the factual circumstances of the case - the accused has the right to
communicate with his lawyer and the right to access the materials required to
prepare his defence.

HUMAN RIGHTS – Article 7(1)(c) of the African Charter – the right to defence including the
right to be assisted by a lawyer of his own choice - the Detainee has not had
access to a lawyer nor was he afforded the assistance of a counsel of his
choice - he was interrogated in the absence of a counsel and was not given the
opportunity to examine the charges which would be brought against him at the
start of the trial - The Detainee was arrested over two years ago and has been
sentenced to death in absentia. - He has therefore not been protected during
the different stages of the investigation instituted against him – which is a
violation of Article 7 of the African Charter.



Separate Opinion of Judge Fatsah
Ouguergouz

JURISDICTION – Admissibility - Rule 55 of the Rules of the Court – the Court did not extend
requisite attention – to determining whether the submissions of the Applicant –
were “founded in fact and in law” – thus the grounds for the Court’s findings
were insufficient.

JURISDICTION – Admissibility – to satisfy itself that the submissions of the Applicant are
founded in law – the court should have made more extensive use of the powers
inherent in its judicial function – and decided on the basis of the jura novit
curia principle...