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Article 19 v State of Eritrea (Communication 275 of 2003)

African Commission on Human and Peoples' Rights · [2007] ACHPR 79 · 2007 Communication Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission alleging human rights violations arising from detention of journalists and ban on private press
Decision
Communication upheld — State found in violation of multiple Charter provisions and ordered to remedy violations

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that Eritrea violated Articles 1, 5, 6, 7(1), 9, and 18 of the African Charter by detaining 18 journalists incommunicado without charge or trial for over five years and banning the entire private press. The Commission found that domestic remedies were unavailable or ineffective where detainees were held incommunicado and denied access to legal representation, and that the African Charter permits no derogation from rights even in times of war. The Commission ordered Eritrea to release or bring the journalists to trial, lift the press ban, grant detainees access to families and lawyers, and pay compensation.

Outcome

Communication upheld — State found in violation of multiple Charter provisions and ordered to remedy violations

Facts

In September 2001, following a political crisis in Eritrea involving criticism of the President by senior officials, the government arrested 11 former government officials and banned the entire private press comprising eight newspapers. Subsequently, 18 journalists were arrested and detained incommunicado without charge or trial. The complainant, Article 19, alleged that the journalists had been held without access to legal representation or family contact since September 2001. The government claimed the arrests were justified by national security concerns and that the journalists were involved in an illegal network to overthrow the government. The detainees remained in incommunicado detention for over five years without being brought before a court.

Issues

  1. Whether the communication is admissible despite the complainant's failure to exhaust domestic remedies in Eritrea.
  2. Whether the detention of 18 journalists incommunicado without charge or trial since September 2001 violates Articles 5, 6, 7, and 18 of the African Charter.
  3. Whether the ban on the entire private press and the arrest of journalists violate Article 9 of the African Charter on freedom of expression.
  4. Whether Eritrea can rely on the existence of war and national security concerns to justify restrictions on Charter rights.

Orders

  • Holds a violation of Articles 1, 5, 6, 7(1), 9, and 18 by the State of Eritrea.
  • Urges the government of Eritrea to release or to bring to a speedy and fair trial the 18 journalists detained since September 2001, and to lift the ban on the press.
  • Recommends that the detainees be granted immediate access to their families and legal representatives.
  • Recommends that the government of Eritrea takes appropriate measures to ensure payment of compensation to the detainees.

Rules and key headnotes

Exhaustion of Domestic Remedies — Exception Where Remedies Unavailable or Ineffective
The requirement to exhaust domestic remedies under Article 56.5 of the African Charter does not apply where detainees are held incommunicado without charge, denied access to legal representation, and the State fails to demonstrate that domestic remedies are available, effective, and sufficient to redress the violations alleged.
Non-Derogation from Charter Rights — War and Emergency Situations
Unlike other human rights instruments, the African Charter does not allow States Parties to derogate from Charter obligations in times of war or other emergency situations, and the existence of war or national security concerns cannot be used to justify violations of Charter rights.
Arbitrary Detention — Detention Without Charge or Trial
Detention of individuals for over five years without charge or trial constitutes arbitrary detention in violation of Article 6 of the African Charter, regardless of whether such detention is authorised by domestic law, where the detention is inappropriate, unjust, or lacks due process.
Right to Trial Within Reasonable Time — Excessive Delay
A State cannot rely on the political situation within its territory, a backlog of cases, or inadequacy of the criminal justice system to justify detention for over five years without trial, as this violates the right to be tried within a reasonable time under Article 7.1(d) of the African Charter.
Incommunicado Detention — Cruel, Inhuman, and Degrading Treatment
Holding individuals incommunicado without permitting contact with family or access to legal representation constitutes inhuman treatment of both the detainee and the family in violation of Article 5 of the African Charter, and no derogation from this right is permitted.
Freedom of Expression — Claw-Back Clauses and Domestic Law Limitations
The phrase 'within the law' in Article 9 of the African Charter does not permit States to negate Charter rights through domestic legislation; any limitation on freedom of expression must conform to international human rights standards, and domestic law that permits wholesale banning of the press and imprisonment of journalists for expressing dissenting views violates Article 9.
Freedom of Expression — Press Freedom and Democratic Society
Banning the entire private press on grounds that it constitutes a threat to the incumbent government violates the right to freedom of expression under Article 9 of the African Charter, as a free press is a fundamental tenet of a democratic society and a valuable check on potential government excesses.

Legislation cited (17)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 6
  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 9
  • African Charter on Human and Peoples' Rights Article 13
  • African Charter on Human and Peoples' Rights Article 18
  • African Charter on Human and Peoples' Rights Article 26
  • African Charter on Human and Peoples' Rights Article 55
  • African Charter on Human and Peoples' Rights Article 56
  • Eritrean Constitution Article 17
  • Eritrean Constitution Article 52
  • Transitional Penal Code of Eritrea Article 259
  • Transitional Penal Code of Eritrea Article 260
  • Transitional Penal Code of Eritrea Article 261
  • International Covenant on Civil and Political Rights Article 7

Cases cited (15)

  • Sir Dawda K Jawara v The Gambia (Communications 147/95 and 149/96)
  • Inter-American Court of Human Rights, Case of Velásquez Rodríguez, Judgment of July 29, 1988
  • A v Australia (Communication 560/1993)
  • Communication 18/88
  • Communication 250/2002
  • Albert Mukong v Cameroon (Communication 458/1991)
  • Constitutional Rights Project v Nigeria (Communication 102/93)
  • Communication 103/93
  • Commission nationale des droits de l'Homme et des libertés v Chad (Communication 74/92)
  • Communications 105/93, 128/94, 130/94 and 152/96
  • Constitutional Rights Project and Civil Liberties Organisation v Nigeria (Communications 143/95 and 150/96)
  • Communications 48/90, 50/91, 52/91 and 89/93 Amnesty International, Comité Loosli Bachelard, Lawyers' Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa / Sudan
  • Buchholz v Germany (Application 7759/77)
  • Union Alimentaria Sanders SA, 7 July 1989, Series A Number 157
  • Harris v Nelson 394 US 286 (1969)

Full judgment

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

Article 19 v State of Eritrea (Communication 275 of 2003) [2007] ACHPR 79 (30 May 2007)
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.