FACTS AND RATIOS FROM "AFRICAN COMMISSION ON HUMAN RIGHTS V. LIBYA [2016] 1 RCACHPR (Part 6) 72

(c) Nonso Robert Attoh

AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS

v.

LIBYA

APPLICATION 002/2013

[2016] 1 RCACHPR (Part 6) 72

FACTS

The Applicant who is the African Commission on Human and People’s Rights seised the African Court following a communication filed before it on behalf of Saif Al Islam Kadhafi, a citizen of Libya, who was detained in a secret location. The Action was filed against the State of Libya which ratified the African Charter on Human and Peoples' Rights on 19 July 1986, and the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights on 19 November 2003 and also acceded to the International Covenant on Civil and Political Rights on 15 May 1970.

The communication before the African Commission on behalf of Mr. Saif Al-Islam Kadhafi, submitted on 2 April 2012 alleged violations of the rights of Mr. Kadhafi guaranteed by Articles 6 and 7 of the Charter by Libya. The Commission subsequently submitted an Application to the African Court dated 8 January 2013 seeking for provisional measures from the Court. The Commision also subsequently filed other Applications before the Court including an Application dated 28 February 2014, bringing to the Court's attention Libya's failure to enforce the Order for Provisional Measures issued by the Commission on 15 March 2013, an Application dated 28 February 2014, in which the Applicant "prays the Court to rule that the Respondent State violated Articles 6 and 7 of the Charter and an Application dated 15 March 2015, praying the Court to "deliver a judgment in default."

The Communication alleged that on 19 November 2011, the National Transitional Council which was then recognized as the Government of Libya, arrested Mr. Kadhafi and kept him in isolation without access to his family, friends or any lawyer. He was not charged with any offence and was not brought before any court but was reportedly being kept in a secret location. The communication alleged that "the victim's life is in danger and his physical integrity and health exposed to the risk of irreparable harm".

As requested by the author of the Communication, the Court, on 18 April 2012, issued an Order for Provisional Measures to pre-empt any irreparable harm to the detainee, but the Respondent State, however, ignored the provisional measures despite reminders addressed to it by the Court

According to the Application before the Court, Libya allegedly violated Articles 6 and 7 of the African Charter, which relate respectively to, the right of every individual to liberty and to the security of his person and the right to have one’s cause heard. This was as a result of the fact that the Detainee, Mr. Kadhafi was deprived of his fundamental right, as he was kept continuously in secret detention since 19 November 2011, without any possibility of getting assisted by a counsel of his choice. Equally, the Applicant alleged that by failing to comply with the Order for Provisional Measures issued by the Court on 15 March 2013, the Respondent State, Libya, violated the rights of Mr. Kadhafi.

In an Application for judgment in default dated 15 May 2015, the Applicant prayed the Court to pass

a judgment in default against Libya and rule that Libya has violated, and continues to violate, Mr. 

Gadhafi's rights guaranteed under Articles 6 and 7 of the African Charter on Human and Peoples' 

Rights;  to grant all the reliefs sought under paragraphs 2(4) of the substantive Application filed on 

24 February 2014; declare and rule that Libya has failed to comply with the Order for Provisional 

Measures issued by the Court pursuant to Rule 51(4) of its Rules; and notify the Executive Council 

and the parties of the above-mentioned Decisions, and publish them pursuant to Rules 51(4), 64(2)

 and 65 of the Rules of Court.

RATIO DECIDENDI (HOLDINGS OF THE COURT)

1.      ON REQUIREMENTS FOR JUDGMENT IN DEFAULT

In addressing the Applicant's request, the Court recalls the relevant provisions of Rule 55 of its Rules regarding "judgment in default" and must ascertain whether all the requirements of this Rule have been met in the case before it.

Rule 55 of the Rules provides that:

"Whenever a party does not appear before the Court, or fails to defend its case, the Court may, on the application of the other party, pass judgment in default after it has satisfied itself that the defaulting party has been duly served with the application and all other documents pertinent to the proceedings. Before acceding to the application of the party before it, the Court shall satisfy itself that it has jurisdiction in the case, and that the application is admissible and well founded in fact and in law.”

Regarding the requirement of ascertaining "that the defaulting party has been duly served with the application and all other documents pertinent to the proceedings", it appears from the account of the different stages of the aforesaid proceedings that both the Applicant and Registry communicated all the pleadings to the Respondent, including the request for provisional measures dated 8 January 2013, and received at the Court on 31 January 2013, the interlocutory motion of 28 February 2013, praying the Court to note the failure by the Respondent to implement the Court Order, the "motion to institute proceedings" of 28 February 2013, and finally the motion for a judgment in default; as well as two orders issued by the Court, on 15 March 2013 and 10 August 2015, respectively.

The Court therefore holds that the first condition for the passing of a "judgment in default" has

been met. Not only had all the pleadings been served on the Respondent, but the latter, while it 

sent the Court two Notes Verbale in response to the Order of 15 March 2013, consistently failed

to present its defence, despite the extension of the deadline accorded. (paragraphs 39-42)

2.      ON THE PERSONAL JURISDICTION OF THE COURT OVER THE PARTIES

In the instant case, the Applicant is, as earlier indicated, the African Commission on Human and Peoples' Rights. Under Article 5(1) of the Protocol, the Commission is one of the entities/institutions entitled to submit cases to the Court. Consequently, the Court has personal jurisdiction vis-a-vis the Applicant to hear the case.

As has also been indicated above, the Respondent in the instant case is Libya, a State which ratified the Charter on 19 July 1986, and the Protocol on 19 November 2003, both texts of which are in force with respect to Libya. According to Article 3(1) of the Protocol, "the jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned" (italics added). Consequently, the Court has personal jurisdiction, vis-a-vis the Respondent, to hear the instant case. (paragraph 47,48)

3.      ON THE RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS

It is clear from the Application that Saif Al-Islam Kadhafi is detained in Libya by a "revolutionary brigade". That notwithstanding, the Court holds the view that the Respondent is responsible for the latter's action as well as its acts of omission. The State is indeed under the obligation to take measures to ensure, in its territory, the application of the laws guaranteed under the Charter.

As provided for in the Draft Articles of the International Law Commission of the United Nations

on the responsibility of States for internationally wrongful acts: "Every internationally wrongful

act of a State entails the international responsibility of that State". According to Article 9 of these

same Draft Articles: "The conduct of a person or group of persons shall be considered an act of

a State under international law if the person or group of persons is in fact exercising elements of 

the governmental authority in the absence or default of the official authorities and in circumstances

such as to call for the exercise of those elements of authority". It is incumbent on "the State 

responsible for internationally wrongful act...to put an end to such acts…” The International 

Criminal Court (ICC) adopted the same position as this Court when it held that the upheavals 

affecting Libya cannot exonerate the Respondent from its obligation to cooperate with the ICC in 

surrendering Saif Al-Islam Kadhafi to it. The Pre-trial Chamber I affirmed that: The Chamber is 

aware of the volatile political and security situation in Libya and is sensitive to the serious

difficulties that its authorities are currently facing as well as the need on their part to focus efforts 

and resources on restoring stability and order, as submitted by Libya. Nonetheless, the Chamber 

cannot ignore its own responsibilities in the proceedings and its duty to deploy all efforts to protect 

the rights of the parties and the interests of victims” (paragraphs 49,50)

4.      ON THE NECESSITY OR NOT OF THE RESPONDENT STATE HAVING MADE A 

DECLARATON ACCEPTING THE COMPETENCE OF THE COURT WHERE THE AFRICAN 

COMMISSION BRINGS A CASE BEFORE THE COURT

The Court notes, in this regard, that when the Commission brings a case before it pursuant to Article 5 (1) of the Protocol, the question as to whether the Respondent must have made the declaration accepting the competence of the Court as required under Article 34 (6) of the said Protocol, does not arise. As is clearly shown in that Article read jointly with Article 5 (3) of the Protocol, the requisite declaration of acceptance of competence is applicable only where individuals and non- governmental organisations to(sic) bring cases before the Court. (paragraph 51)

5.      ON THE MATERIAL JURISDICTION OF THE COURT

With respect to the Court's material jurisdiction (ratione materiae), Article 3(1) of the Protocol provides that "the jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant human rights instrument ratified by the States concerned.”

In the instant case, the Applicant alleges violation of Articles 6 and 7 of the Charter by the 

Respondent. As such, the matter submitted by the Applicant falls within the material jurisdiction 

of the Court, and the issue at stake actually concerns the application of the relevant provisions of 

the Charter to which Libya is a Party. (paragraphs 53,54)

6.      ON THE TEMPORAL JURISDICTION OF THE COURT

As regards jurisdiction ratione temporis, the Court notes that, in the instant case, the relevant dates to be considered are those of the entry into force of the Charter with respect to the Respondent (26 March 1987) and the Protocol (8 December 2003).

The Court notes that, according to the Application, the alleged violation of the Charter occurred for the first time in 2011 and has continued to this day.

Consequently, and since the purported facts occurred after the entry into force of the Protocol, the 

Court finds that it has temporal jurisdiction to examine the alleged violation of the right to liberty 

and the right to a fair trial raised in this case. (paragraphs 55-57)

7.      ON THE TERRITORIAL JURISDICTION OF THE COURT

Lastly, the Court notes that with regard to territorial jurisdiction (ratione loci), there is no shadow of doubt that the facts of the case occurred in the territory under the authority of Libya.

The Court therefore finds that at the time of occurrence of the facts of this matter and up to this date, Libya being a Party to the Charter and to the Protocol, both instruments are in force with respect to Libya and on its territory; and that the Courts territorial jurisdiction has consequently been established. (paragraphs 58,59)

13.  ON REASONABLE PERIOD OF TIME FOR FILING AN APPLICATION

As regards the reasonable time requirement, the initial Application was filed before the Court on 31 January 2013 that is, one year following the firm conclusion that the Respondent State has not complied with the Provisional Measures ordered by the Commission on 18 April 2012. This Application limits itself to praying the Court to issue provisional measures against the Respondent. That is a reasonable period of time.

The Court therefore notes that the condition set forth in Article 40 (6) of the Rules has been met. (paragraphs 71,72)

1         14.  ON RIGHTS THAT CANNOT BE DEROGATED FROM

The Court finds, as a preliminary remark, that whereas it is accepted under international law that, in exceptional circumstances, States Parties to a human rights instrument such as the International Covenant on Civil and Political Rights (hereinafter referred to as "ICCPR”) have the right of derogation therefrom. It is no less recognised that this right has inherent limits in so far as there are rights that cannot not be derogated, regardless of the prevailing situation.

This is the case as regards the rights defined by Articles 6 and 7 of the ICCPR, namely: the right to life, the right not be subjected torture or to cruel, inhuman and degrading punishment or treatment - rights mostly enshrined in Articles 6 and 7 of the African Charter on Human and Peoples' Rights. The Court therefore holds that, despite the exceptional political and security situation prevailing in Libya since 2011, the Libyan State is internationally responsible for ensuring compliance with and guaranteeing the human rights enshrined in Articles 6 and 7 of the Charter. (paragraphs 76,77)    

15.  ON WHEN DEPRIVATION OF LIBERTY IS PERMITTED

The Court is of the opinion that deprivation of liberty, regardless of its form, is permitted only when it is in conformity with procedures established by domestic legislation which itself should be consistent with international human rights standards.

As such, every 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 which is also applicable in the instant case.

Under Article 9 of the ICCPR, the aforesaid guarantees are:

"2. Everyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him

"3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody but release may be subject to guarantees to appear for trial at any other stage of the judicial proceedings, and should the occasion arise for execution of the judgment".

"4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful".

“5. Anyone who has been a victim of unlawful arrest or detention shall have an enforceable right to compensation" (paragraphs 80, 82-83) 

22.  ON THE IMPLICATIONS OF THE RIGHT TO DEFENCE

The right to defence also implies 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. This implies the right to communicate with his lawyer and the right to access the materials required to prepare his defence.

The same is the case with other international courts notably the European Court of Human Rights,

which, on 14 October 2010 noted that "the person held in custody has the right to be assisted by a 

lawyer from the outset of such a measure and during interrogations and should be informed by the 

authorities of his right to remain silent”. In another matter, "the Court recalls that the right of every

accused person to be effectively defended by a lawyer, if need be, is at the heart of the notion of 

fair trial”.

According to available information, the Detainee has not had access to a lawyer nor was he afforded the assistance of a counsel of his choice. He has therefore not been protected during the different stages of the investigation instituted against him. For example, 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.  (paragraphs 94-96)