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Elgak and Others (represented by FIDH and OMCT) v Sudan (Communication 379-09)

African Commission on Human and Peoples' Rights · [2014] ACHPR 6 (14 March 2014) · 2014 Communication Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication before the African Commission on Human and Peoples' Rights alleging violations of the African Charter
Decision
Communication upheld; respondent state ordered to provide compensation, conduct investigations, prosecute perpetrators, and restore the closed organization's bank accounts

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission found Sudan violated the African Charter by subjecting three human rights defenders to torture, arbitrary detention, and harassment. The Commission held that domestic remedies were unavailable and ineffective where complainants faced persecution and NISS officers enjoyed immunity that could only be lifted at the Director's discretion. Sudan violated Articles 1, 5, 6, 9, 10, 12, 15, and 16 of the Charter. The Commission ordered Sudan to pay compensation, investigate and prosecute perpetrators, and reopen the closed human rights organization.

Outcome

Communication upheld; respondent state ordered to provide compensation, conduct investigations, prosecute perpetrators, and restore the closed organization's bank accounts

Facts

Three Sudanese human rights defenders were arrested by National Security and Intelligence Services (NISS) officers in Khartoum on 24 November 2008. They were interrogated about alleged cooperation with the International Criminal Court. Mr. Osman Hummeida and Mr. Monim Elgak were severely beaten with plastic pipes and wooden canes. Mr. Hummeida was detained for three and a half days, denied medical treatment despite high blood pressure, and threatened with death and rape. All three were denied access to lawyers. After their release, Mr. Hummeida and Mr. Elgak fled Sudan in early December 2008. The Khartoum Centre for Human Rights and Environmental Development (KCHRED), where Mr. Amir Suliman worked, was subjected to harassment, had its bank accounts frozen in February 2009, and was shut down. Mr. Suliman left Sudan in February 2009. The complainants could not return to Sudan due to well-founded fear of further persecution.

Issues

  1. Whether the complainants were required to exhaust local remedies before bringing their communication to the African Commission.
  2. Whether the complainants were subjected to torture and cruel, inhuman or degrading treatment in violation of Article 5 of the African Charter.
  3. Whether the arrest and detention of the complainants was arbitrary and violated Article 6 of the African Charter.
  4. Whether the complainants' right to a fair trial under Article 7 of the African Charter was violated.
  5. Whether the respondent state violated the complainants' right to freedom of expression under Article 9 of the African Charter.
  6. Whether the closure of KCHRED and harassment of its director violated the right to freedom of association under Article 10 of the African Charter.
  7. Whether the complainants' forced departure from Sudan and inability to return violated their right to freedom of movement under Article 12 of the African Charter.
  8. Whether the closure of KCHRED violated Mr. Amir Suliman's right to work under Article 15 of the African Charter.
  9. Whether the treatment of the complainants and denial of medical care violated their right to health under Article 16 of the African Charter.
  10. Whether the respondent state failed in its obligations under Article 1 of the African Charter to give effect to the rights guaranteed in the Charter.

Orders

  • Communication declared admissible.
  • Sudan found to have violated Articles 1, 5, 6, 9, 10, 12, 15, and 16 of the African Charter in respect of Mr. Amir Suliman.
  • Sudan found to have violated Articles 1, 5, 6, 9, 10, 12, and 16 of the African Charter in respect of Mr. Monim Elgak.
  • Sudan found to have violated Articles 1, 5, 6, 9, 10, 12(1), and 16 of the African Charter in respect of Mr. Osman Hummeida.
  • Sudan found not to have violated Article 7 of the African Charter.
  • Sudan ordered to pay adequate compensation to the complainants in accordance with domestic law.
  • Sudan ordered to investigate and prosecute all persons who participated in the illegal incarceration and torture of the complainants.
  • Sudan ordered to reopen and unfreeze the bank accounts of KCHRED.
  • Sudan required to inform the Commission within 180 days of measures taken to implement the decision.

Rules and key headnotes

Admissibility — Exhaustion of Local Remedies — Unavailability Due to Fear of Persecution
Complainants are not required to exhaust local remedies where they face a genuine risk of further serious violations if they return to pursue remedies, and where the same risk applies to anyone pursuing a complaint on their behalf. A remedy is considered available only if the applicant can make use of it in the circumstances of the case without impediment.
Admissibility — Exhaustion of Local Remedies — Effectiveness Where State Has Notice
Where a state has been sufficiently notified of alleged human rights violations through embassy representations, open letters, urgent action requests from international organizations, and media reports, the state has an obligation to investigate and remedy the violations on its own initiative. Complainants are not required to pursue formal legal proceedings where the state has had ample notice and time to remedy the situation but has taken no action.
Admissibility — Exhaustion of Local Remedies — Discretionary Remedies Without Judicial Oversight
A remedy that requires the lifting of immunity by the same official accused of violations, where the decision is purely discretionary and not subject to judicial oversight, is neither adequate nor effective. It would be improper to insist on complainants seeking remedies from a source that does not operate impartially and has no obligation to decide according to legal principles.
Torture — Elements and State Obligations
Torture under the African Charter requires that severe pain or suffering has been inflicted for a specific purpose such as obtaining information, as punishment, or to intimidate, by or at the instigation of or with the consent or acquiescence of state authorities. Where torture is allegedly inflicted and brought to the attention of the state, the state is under an obligation to initiate a prompt, impartial, and effective investigation to determine the veracity of the allegations, bring perpetrators to justice if allegations are founded, and afford redress to victims.
Liberty and Security — Arbitrary Detention
Detention is arbitrary and violates Article 6 of the African Charter where individuals are invited for a meeting from which they are not allowed to leave voluntarily, are subsequently detained without formal arrest or warrant, are not informed of reasons for detention, no charges are brought, and procedural safeguards such as access to a lawyer and consular assistance are not respected. Arrest and detention must be based on reasonable suspicion and in accordance with law.
Freedom of Expression — Restrictions Must Be Justified
Any restrictions on freedom of expression must be provided by law, serve a legitimate interest, and be necessary in a democratic society. Where individuals are prevented from exercising their right to receive and disseminate information solely on account of perceived links with an international institution, and no legitimate prejudice to national security, morality, or the rights of others is shown, the restriction is unjustified and violates Article 9 of the African Charter.
Freedom of Association — Arbitrary Interference
Interference with the right to freedom of association, including the closure of an organization and freezing of its bank accounts, is arbitrary and violates Article 10 of the African Charter where the only reason for targeting the organization is its perceived links with an international institution and the state provides no evidence that the organization's activities endangered national security, morality, or the rights of others.

Legislation cited (23)

  • African Charter on Human and Peoples' Rights Article 1
  • 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 10
  • African Charter on Human and Peoples' Rights Article 12
  • African Charter on Human and Peoples' Rights Article 15
  • African Charter on Human and Peoples' Rights Article 16
  • African Charter on Human and Peoples' Rights Article 27
  • African Charter on Human and Peoples' Rights Article 56
  • Criminal Procedure Act of 1991 (Sudan) Article 34(2)
  • Criminal Procedure Act of 1991 (Sudan) Article 35
  • National Security Forces Act of 1999 (Sudan) Article 30
  • National Security Forces Act of 1999 (Sudan) Article 31
  • National Security Forces Act of 1999 (Sudan) Article 33(b)
  • National Security Forces Act of 1999 (Sudan) Article 40
  • National Security Forces Act of 1999 (Sudan) Article 46
  • National Security Forces Act 2010 (Sudan) Article 54
  • National Security Forces Act 2010 (Sudan) Article 59
  • Interim National Constitution of Sudan 2005 Article 35
  • UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  • Robben Island Guidelines Article 19

Cases cited (14)

  • Jawara v Gambia
  • John D. Ouko v Kenya (Communication 232/99)
  • Rights International v Nigeria (Communication 215/98)
  • Amnesty International and Others v Sudan (Communications 48/90, 50/91, 52/91, 89/93)
  • Article 19 v Eritrea (Communication 275/03)
  • Constitutional Rights Project (in respect of Zamani Lakwot and 6 Others) v Nigeria (Communication 87/93)
  • Constitutional Rights Project (in respect of Wahab Akamu, G. Adega and Others) v Nigeria (Communication 60/91)
  • Sudan Human Rights Organization and Center for Housing Rights and Evictions v Sudan (Communications 279/03-296/05)
  • Institute for Human Rights and Development in Africa v Angola (Communication 294/2004)
  • Huri Laws v Nigeria (Communication 225/98)
  • Amnesty International v Zambia (Communication 212/98)
  • Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe (Communication 284/03)
  • Media Rights Agenda and Constitutional Rights Project v Nigeria (Communications 105/93, 128/94, 130/94, 152/96)
  • Fongum Gorji-Dinka v Cameroon (Communication 1134/2002)

Full judgment

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Elgak and Others (represented by FIDH and OMCT) v Sudan (Communication 379-09) [2014] ACHPR 6 (14 March 2014)
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.