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Zegveld and Another v Eritrea (Communication 250 of 2002)

African Commission on Human and Peoples' Rights · [2003] ACHPR 52 · 2003 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission alleging violations of the African Charter arising from the detention without charge of eleven former Eritrean government officials
Decision
State found in violation of the African Charter; immediate release of detainees ordered and compensation recommended

Observed later treatment

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Holding

The African Commission found Eritrea in violation of Articles 2, 6, 7(1) and 9(2) of the African Charter. Eleven former government officials arrested in September 2001 for criticising the government had been held incommunicado without charge for over two years. The Commission held that incommunicado detention is a gross human rights violation, that all detentions must be subject to judicial review, and that restrictions on freedom of expression must be provided by law and conform to international standards. The Commission ordered their immediate release and recommended compensation.

Outcome

State found in violation of the African Charter; immediate release of detainees ordered and compensation recommended

Facts

Eleven former Eritrean government officials, members of the ruling Peoples' Front for Democracy and Justice, wrote an open letter in May 2001 criticising the government for acting in an illegal and unconstitutional manner. They were arrested on 18 and 19 September 2001 and detained on grounds of crimes against national security and sovereignty. The detainees were held incommunicado with no access to lawyers or family and their whereabouts were unknown. Complainants submitted habeas corpus requests to the Minister of Justice on 26 November 2001 and 9 April 2002, and to the High Court of Asmara on 26 June 2002, but received no response. Local lawyers declined to pursue the case for fear of persecution. By the time of the Commission's decision in November 2003, the detainees had been held without charge for over two years. Eritrea admitted the detention but stated it was making efforts to bring them before a court, citing congestion in the criminal justice system inherited from Ethiopia.

Issues

  1. Whether the communication was admissible despite non-exhaustion of domestic remedies where the detainees had been held incommunicado for over 18 months without charge and without access to lawyers or courts.
  2. Whether the detention of eleven former government officials without charge and without access to lawyers or family since September 2001 violated their right to liberty and security under Article 6 of the African Charter.
  3. Whether the prolonged incommunicado detention without trial violated the detainees' right to fair trial under Article 7(1) of the African Charter.
  4. Whether the arrest and detention of the eleven persons for expressing opinions critical of the government violated their right to freedom of expression under Article 9(2) of the African Charter.
  5. Whether the violations occurred without distinction contrary to Article 2 of the African Charter.

Orders

  • Communication declared admissible.
  • State of Eritrea found in violation of Articles 2, 6, 7(1) and 9(2) of the African Charter.
  • State of Eritrea urged to order the immediate release of the 11 detainees, namely Petros Astier Feshation, Saleh Kekya, Hamid Himid, Estifanos Seyoum, Germano Nati, and Beraki Ghebre Selassie.
  • State of Eritrea recommended to compensate the above-mentioned persons.

Rules and key headnotes

Admissibility — Exhaustion of Domestic Remedies — Exception Where Remedies Unavailable or Unduly Prolonged
The rule requiring exhaustion of local remedies does not apply where domestic remedies are unavailable, ineffective, or unduly prolonged. Where detainees have been held incommunicado without charge for over 18 months with no access to lawyers or courts, and habeas corpus requests have gone unanswered, the exception to exhaustion applies and the communication is admissible.
Burden of Proof — Exhaustion of Domestic Remedies — State Obligation to Prove Availability and Effectiveness
Where a complainant raises non-exhaustion of local remedies on grounds of unavailability of due process, the burden of proof shifts to the State to prove that domestic remedies remain to be exhausted and that they are effective. Domestic remedies must be available, adequate and effective to require exhaustion.
Right to Liberty — Incommunicado Detention — Prohibition of Secret Detention
Incommunicado detention is a gross human rights violation that can lead to other violations such as torture or ill-treatment. All detentions must be subject to basic human rights standards. There should be no secret detentions and States must disclose the fact that someone is being detained as well as the place of detention. Every detained person must have prompt access to a lawyer and to their families.
Fair Trial — Judicial Review of Detention — State Obligation to Bring Detainees Before Court Promptly
The lawfulness and necessity of holding someone in custody must be determined by a court or other appropriate judicial authority. The decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed. Detention should not continue beyond the period for which the State can provide appropriate justification. Persons suspected of committing any crime must be promptly charged with legitimate criminal offences.
Freedom of Expression — Restrictions Must Be Provided by Law and Conform to International Standards
The right to freedom of expression is a fundamental individual human right and a cornerstone of democracy. Any restrictions on freedom of expression must be provided for by law and must conform to international human rights norms and standards. The African Charter does not permit derogation from the right to freedom of expression on the basis of emergencies or special circumstances.
State Responsibility — Detention of Political Critics — Violation of Multiple Charter Rights
Where persons are arrested and detained without charge for expressing opinions critical of the government, held incommunicado without access to courts, lawyers or family for over two years, the State violates Articles 2, 6, 7(1) and 9(2) of the African Charter. Such detention constitutes arbitrary deprivation of liberty, denial of fair trial rights, and unlawful restriction of freedom of expression.

Legislation cited (10)

  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 6
  • African Charter on Human and Peoples' Rights Article 7(1)
  • African Charter on Human and Peoples' Rights Article 9(2)
  • African Charter on Human and Peoples' Rights Article 55
  • African Charter on Human and Peoples' Rights Article 56
  • African Charter on Human and Peoples' Rights Article 56.5
  • Constitution of the State of Eritrea Article 17(4)
  • Rules of Procedure of the African Commission Article 111
  • Rules of Procedure of the African Commission Rule 118(2)

Cases cited (9)

  • Ocalan v Turkey (Application No. 46221/99)
  • Velasquez Rodriguez v Honduras (Judgment of 29 July 1988)
  • Jawara v The Gambia (Communications 147/95 and 149/96)
  • Commission Nationale des Droits de l'Homme et des Libertés v Chad (Communication 74/92)
  • Ouko v Kenya (Communication 232/99)
  • Constitutional Rights Project and Civil Liberties Organisation v Nigeria (Communications 143/95 and 150/96)
  • Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria (Communications 140/94, 141/94, 145/95)
  • UNHRC Communication 440/1990
  • Ouko v Kenya (Communication 232/99)

Full judgment

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Zegveld and Another v Eritrea (Communication 250 of 2002) [2003] ACHPR 52 (20 November 2003)
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.