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African Commission on Human and Peoples’ Rights v Libya (Application 002-2013)

African Court on Human and Peoples' Rights · [2016] AfCHPR 37 · 2016 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by the African Commission on Human and Peoples' Rights following a communication filed on behalf of a detainee alleging violations of the African Charter; judgment in default after respondent State failed to defend
Decision
Application granted; Libya ordered to terminate illegal criminal proceedings and protect detainee's rights under the Charter

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Court on Human and Peoples' Rights held that Libya violated Articles 6 and 7 of the African Charter by detaining Saif Al-Islam Kadhafi incommunicado in a secret location without access to a lawyer or family, without bringing him before a court, and by sentencing him to death in absentia. The Court found that the requirement to exhaust local remedies did not apply where such remedies were unavailable and ineffective. The Court ordered Libya to terminate the illegal criminal proceedings and protect all the detainee's rights under the Charter.

Outcome

Application granted; Libya ordered to terminate illegal criminal proceedings and protect detainee's rights under the Charter

Facts

On 19 November 2011, the National Transitional Council of Libya arrested Saif Al-Islam Kadhafi and detained him in isolation in a secret location without access to family, friends, or a lawyer. He was not charged with any offence and was not brought before any court. On 2 April 2012, a communication was filed with the African Commission on Human and Peoples' Rights alleging violations of his rights. The Commission issued provisional measures on 18 April 2012, which Libya ignored. The Commission then brought the matter to the African Court, which issued further provisional measures on 15 March 2013 and 10 August 2015. Libya failed to respond to any of the applications or comply with the Court's orders. In July 2015, the Assize Court of Tripoli sentenced the detainee to death in absentia. The detainee was first arraigned before an extraordinary court known as the People's Tribunal, which was declared unconstitutional by the Supreme Court of Libya on 23 December 2012.

Issues

  1. Whether Libya violated Article 6 of the African Charter by detaining Saif Al-Islam Kadhafi incommunicado in a secret location without bringing him before a court.
  2. Whether Libya violated Article 7 of the African Charter by denying the detainee access to a lawyer of his choice and failing to afford him a fair trial.
  3. Whether the Court has jurisdiction to hear an application brought by the African Commission on Human and Peoples' Rights against a State Party that has not made a declaration under Article 34(6) of the Protocol.
  4. Whether local remedies were exhausted or whether the requirement to exhaust local remedies was inapplicable in the circumstances.

Orders

  • Upholds its Orders of 15 March 2013 and of 10 August 2015, and orders the Respondent State to comply therewith.
  • Declares that, pursuant to Articles 3 and 5(1)(a) of the Protocol, it has jurisdiction to hear the Application filed by the African Commission on Human and Peoples' Rights.
  • Declares the Application admissible.
  • Finds that Libya has violated and continues to violate Articles 6 and 7 of the African Charter on Human and Peoples' Rights.
  • Orders the Respondent State to protect all the rights of Mr. Kadhafi as defined by the Charter by terminating the illegal criminal procedure instituted before the domestic courts.
  • Orders Libya to submit to the Court a report on the measures taken to guarantee the rights of Mr. Kadhafi within sixty (60) days from the date of notification of this Judgment.

Rules and key headnotes

Right to Liberty and Security of Person — Incommunicado Detention — Secret Detention
Incommunicado detention in a secret location without access to a lawyer, family, or judicial authority constitutes a gross violation of the right to liberty and security of person under Article 6 of the African Charter, regardless of exceptional political or security circumstances prevailing in the State.
Fair Trial Rights — Access to Counsel — Right to Defence
The right to defence under Article 7(1)(c) of the African Charter requires that every accused or detained person be afforded access to a lawyer of his choice at every stage of criminal procedure, including during investigation, administrative detention, and trial. Denial of this right, including interrogation without counsel and trial in absentia without legal representation, violates the right to a fair trial.
Non-Derogable Rights — Right to Life and Fair Trial
The rights enshrined in Articles 6 and 7 of the African Charter, corresponding to Articles 6 and 7 of the ICCPR, are non-derogable rights from which no derogation is permitted even in times of public emergency threatening the life of the nation. A State remains internationally responsible for ensuring compliance with these rights regardless of exceptional political or security circumstances.
State Responsibility — Acts of Non-State Actors
A State is internationally responsible for acts of non-state actors, including revolutionary brigades, where such persons or groups are exercising elements of governmental authority in the absence or default of official authorities. The State is under an obligation to take measures to ensure application of the laws guaranteed under the Charter in its territory.
Exhaustion of Local Remedies — Availability and Effectiveness
The requirement to exhaust local remedies does not apply where such remedies are not available or effective. Where a detainee is held incommunicado in a secret location by a non-state actor without access to a lawyer or judicial authority, he is prevented from legally seeking local remedies and the exhaustion requirement is not strictly applicable.
Jurisdiction of African Court — Applications by African Commission
Where the African Commission on Human and Peoples' Rights brings a case before the African Court pursuant to Article 5(1) of the Protocol, the requirement for a State to have made a declaration accepting the Court's competence under Article 34(6) does not apply. The declaration requirement applies only to applications brought by individuals and non-governmental organisations under Article 5(3).
Judgment in Default — Requirements
A court may pass judgment in default where a party fails to appear or defend its case, provided the defaulting party has been duly served with the application and all pertinent documents, and the court has satisfied itself that it has jurisdiction and that the application is admissible and well founded in fact and in law.

Legislation cited (8)

  • African Charter on Human and Peoples' Rights Article 6
  • African Charter on Human and Peoples' Rights Article 7
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 3
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 5
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 27
  • International Covenant on Civil and Political Rights Article 4
  • International Covenant on Civil and Political Rights Article 9
  • International Covenant on Civil and Political Rights Article 14

Cases cited (5)

  • Tanganyika Law Society and the Legal and Human Rights Centre and Reverend Christopher R. Mtikila v. The United Republic of Tanzania (Applications 009/2011 and 011/2011)
  • Beneficiaries of Late Norbert Zongo and Others v. Burkina Faso (Application 013/2011)
  • Liesbeth Zegveld and Mussie/Eritrea (Communication 250/02)
  • Brusco v. France, 14 October 2010
  • Dayanan v. Turkey (Application 7377/03)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

African Commission on Human and Peoples’ Rights v Libya (Application 002-2013) [2016] AfCHPR 37 (3 June 2016)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.