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RAPPORTEUR
31st Session: Commissioner Rezag Bara
32nd Session: Commissioner Rezag Bara
33rd Session: Commissioner Rezag Bara
34th Session: Commissioner Rezag Bara
SUMMARY OF FACTS
1. The complaint is filed by Dr. Liesbeth Zegveld, an international lawyer
at a Netherlands based firm - Böhler Franken Koppe De Feijter, and Mr.
Mussie Ephrem, an Eritean living in Sweden.
2. The Complainants allege that 11 (eleven) former Eritrean government
officials, namely, Petros Solomon, Ogbe Abraha, Haile Woldetensae, Mahmud
Ahmed Sheriffo, Berhane Ghebre Eghzabiher, Astier Feshation, Saleh Kekya,
Hamid Himid, Estifanos Seyoum, Germano Nati, and Beraki Ghebre Selassie were
illegally arrested in Asmara, Eritrea on 18th and 19th September 2001 in
violation of Eritrean laws and the African Charter on Human and Peoples' Rights. They were part of a group of 15 senior officials of the ruling
Peoples Front for Democracy and Justice (PFDJ) who had been openly critical
of the Eritrean Government policies. In May 2001, they wrote an open letter
to ruling party members criticising the government for acting in an "illegal
and unconstitutional" manner. Their letter also called upon "all PFDJ
members and Eritrean people in general to express their opinion through
legal and democratic means and to give their support to the goals and
principles they consider just." The government subsequently announced that
the 11 individuals mentioned above, on whose behalf the present complaint is
being filed, had been detained "because of crimes against the nation's
security and sovereignty."
3. The complaint also alleges that the detainees could be prisoners of
conscience, detained solely for the peaceful expression of their political
opinions. Their whereabouts is currently unknown. The Complainants allege
that the detainees may be held in some management building between the
capital Asmara and the port of Massawa. They have reportedly not been given
access to their families or lawyers. The Complainants fear for the safety of
the detainees.
4. The Complainants state that they have made a request for habeas corpus to
the Minister of Justice of Eritrea. They claim that they could not submit
the same to the courts, as the place of detention of the 11 former officials
was unknown. They allege that in the habeas corpus the Eritrean authorities
were asked, among others, to reveal where the 11 detainees were being held,
to either charge and bring them to court or promptly release them, to
guarantee that none of them would be ill treated and that they have
immediate access to lawyers of their choice, their families and adequate
medical care. The Complainants allege that no reaction has been received
from the Eritrean authorities.
5. Together with their complaint the Complainants submitted a request for
provisional measures to the African Commission in accordance with Rule 111
of the Rules of Procedure of the African Commission.
COMPLAINT
6. The Complainants allege violations of Articles 2, 6, 7(1), and 9(2) of
the African Charter on Human and Peoples' Rights.
7. The Complainants pray that should the detainees be tried, the trial
should be held in accordance with international human rights standards and
without recourse to the death penalty. They claim that such a trial should
not be before the Special Court, which they allege fails to meet
international standards of fair trial.
PROCEDURE
8. The complaint was dated 9th April 2002 and received at the Secretariat on
9th April 2002 by fax, and on 9th and 11th April 2002 by email.
9. On 19th April 2002, the Secretariat wrote to the Complainants
acknowledging receipt of the complaint, and informing them that their
request for provisional measures was noted and would be acted upon
accordingly.
10. On 3rd May 2002, the African Commission wrote a letter of appeal to His
Excellency Issayas Afewerki, President of the State of Eritrea, respectfully
urging Him to intervene in the matter being complained of pending the
outcome of the consideration of the complaint before the Commission.
11. At its 31st Ordinary Session held from 2nd to 16th May 2002 in Pretoria,
South Africa, the African Commission considered the complaint and decided to
be seized thereof.
12. On 20th May 2002, the Ministry of Foreign Affairs of the State of
Eritrea responded to the Commission appeal and confirming to the latter that
the alleged victims on whose behalf the complaint was filed had their
quarters in appropriate government facilities, had not been ill-treated,
have had continued access to medical services and that the government was
making every effort to bring them before an appropriate court of law as
early as possible.
13. On 28th May 2002, the Secretariat wrote to the Complainants and the
Respondent State of the Commission's decision to be seized of the matter and
requested them to forward their submissions on admissibility before the 32nd
Ordinary Session of the Commission.
14. The Secretariat of the African Commission forwarded the Ministry's
response to the Chairperson of the African Commission on 7th June 2002 and
to the Complainants on 18th June 2002.
15. On 25th October 2002, the African Commission wrote, by way of follow up
on its urgent appeal in the matter, to the Respondent State reminding it
that it was the responsibility of the Member State's General Prosecutor to
bring the accused before a competent court of law in accordance with the
rules guaranteeing fair trial under relevant national and international
instruments.
16. The two parties made submissions on admissibility.
17. At its 33rd Ordinary Session held from 15th to 29th May 2003, in Niamey,
Niger, the African Commission heard oral submissions from both parties to
the communication and decided to declare the communication admissible.
18. On 10th June 2003, the Secretariat of the African Commission wrote
informing the parties to the communication of the African Commission's
decision and requested them to forward their submissions on the merits of
the communication within 3 months.
19. The Chairperson of the African Commission forwarded a letter dated 10th
June 2003 appealing to H.E the President of Eritrea to intervene in this
matter and urge the authorities holding the 11 individuals to release them
or bring them before the courts in Eritrea.
20. At its 34th Ordinary Session, held from 6th to 20th November 2003 in
Banjul, The Gambia, the African Commission considered the communication and
delivered its decision on the merits.
LAW
ADMISSIBILITY
21. The admissibility of communications brought pursuant to Article 55 of
the African Charter is governed by the conditions stipulated in Article 56
of the African Charter. This Article lays down seven (7) conditions, which
must generally be fulfilled by a Complainant for a communication to be
declared admissible.
22. At issue in the present communication is whether the Complainants have
pursued and exhausted the domestic legal remedies of Eritrea, and if not,
whether the exception to the exhaustion of domestic remedies rule should
apply. This issue of exhaustion of domestic remedies is governed by Article
56(5) of the African Charter and it provides:
1. Communications � received by the Commission shall be considered if they:
2. (5) are sent after exhausting local remedies, if any unless it is obvious
that this procedure is unduly prolonged
23. The rule requiring exhaustion of local remedies has been applied by
international adjudicating bodies and is premised on the principle that the
Respondent State must first have an opportunity to redress by its own means
within the framework of its own domestic legal system, the wrong alleged to
have been done to the individual.
24. In determining whether this communication should be declared admissible
or otherwise, the African Commission must have regard to the arguments put
forward by the Complainants and the Respondent State.
25. The Complainants submit they have attempted to exhaust local remedies in
Eritrea. They state that on 26th November 2001 and on 9th April 2002, they
submitted a habeas corpus request through the Eritrean Minister of Justice
asking the Eritrean Authorities to disclose where the 11 detainees were
being held and why. The Complainants also requested that the detainees be
brought to court and charged in accordance with the law, however, there was
no response to their request. A similar request was made on 26th June 2002
(which is after the African Commission was seized of their complaint) to the
Eritrean High Court in Asmara to which there was no reply either.
26. In her oral submissions during the 33rd Ordinary Session of the African
Commission, Zegveld stated that in an attempt to access the local courts,
they had requested locally based legal practitioners (whom she declined to
name) to bring the matter before the local courts. However, the said lawyers
later informed her that they would not be able to pursue the detainees' case
in the domestic courts for fear of persecution by the authorities and for
fear of jeopardising their legal practice.
27. The Complainants further submit that for more than 18 months, the 11
detainees have been held in detention without formal charges and with no
access to their lawyers or families thus rendering them unable to seek legal
or administrative redress. Furthermore, there has been no response from the
government of Eritrea or High Court of Asmara, in relation to the
Complainants' requests of 26th November 2001 and 9th April 2002.
28. Under the circumstances presented above, the Complainants aver that the
requirement to exhaust local remedies can no longer apply because even where
such remedies would have been existent they have been unduly prolonged in
this case.
29. The Complainants refer the African Commission to a decision of the
European Court of Human Rights in Ocalan vs Turkey [FN1] where the court
held that Ocalan's isolation and the fact that the Turkish police obstructed
his access to lawyers made it impossible for the applicant to have effective
recourse to a domestic remedy under Turkish Law.
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[FN1] Application No. 46221/99, 12th March 2003
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30. In its written submissions, the Respondent State argues that the
Complainants addressed their habeas corpus request to the Minister of
Justice who is a member of the Executive branch with no capacity to address
and take decisions on this matter either in substance or in procedure. They
submit that only the judiciary has the authority to take action on any
civil, criminal and other issues of judicial nature including, the matter of
habeas corpus.
31. During the 33rd Ordinary Session, the Representative of the Respondent
State submitted that to date the Complainants have not submitted themselves
to the courts in Eritrea. He informed the African Commission that he had
personally checked with the High Court of Asmara to establish whether the
matter had been brought to the court's attention but there was no case file
on this matter.
32. The Representative of the Respondent State argues that the Complainants'
assertion that they have not been able to access the domestic courts is
speculative. He stated that Zegveld should accredit herself to the courts in
Eritrea to enable her bring this matter before the local courts.
33. The Respondent State further submits that they have been unable to bring
the 11 detainees before a court of law because of the nature of the criminal
justice system in Eritrea. The Representative of the Respondent State
informed the African Commission that the criminal justice system in Eritrea
was inherited from Ethiopia and is therefore lacking. Within the High Court
of Asmara, there is only one chamber responsible for handling criminal cases
including criminal matters from the lower courts. As such, the Court's
calendar is highly congested and difficult to manage. Therefore cases are
bound to take time before they are heard by the courts and this is the very
reason for the delay in bringing the matter of the 11 detainees before a
court of law.
34. There are exceptions to the rule of exhaustion of domestic remedies and
the Complainants have argued that they could not exhaust the domestic
remedies because the domestic legislation of the Eritrea does not afford due
process of law for the protection of the rights that have allegedly been
violated.
35. At this stage, it should be made clear that, when a person is being held
in detention and accused for committing a crime, the African Commission
holds that it is the responsibility of the Member State, through its
appropriate judicial bodies, to bring this person promptly before a
competent court of law in order to enable him/her to be tried in accordance
with rules guaranteeing the right to a fair trial in accordance with
national and international standards.
36. The Inter-American Court of Human Rights in the Velasquez case [FN2]
while interpreting Article 46 of the American Convention (similar to Article
56(5) of the African Charter) which relates to the issue of exhaustion of
domestic remedies, stated that, for the rule of prior exhaustion of domestic
remedies to be applicable, the domestic remedies of the State concerned must
be available, adequate and effective in order to be exhausted. The Court
also opined that where a party raises non-exhaustion of local remedies
because of the unavailability of due process in the State, the burden of
proof will shift to "the State claiming non-exhaustion and it has an
obligation to prove that domestic remedies remain to be exhausted and that
they are effective."
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[FN2] Velasquez Rodríguez Case, Judgement of July 29, 1988, Inter-Am.Ct.H.R
(Ser.C) No.4 (1988)
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37. In Consolidated communication 147/95 and 149/96 [FN3], the African
Commission also ruled that domestic remedies must be available, effective
and sufficient; A domestic remedy is considered available if the petitioner
can pursue it without impediment, it is effective if it offers a prospect of
success and it is sufficient if it is capable of redressing the complaint.
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[FN3] Consolidated communication 147/95 and 149/96 - Sir Dawda K. Jawara/The
Gambia
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38. The African Commission notes that by its own admission, the Respondent
State has indicated that it has not yet put in place structures that would
ensure that cases are handled "within reasonable time". However, the
Respondent State goes ahead to assure the African Commission that the
detainees will be brought before a court of competent jurisdiction in due
course.
39. The State has a constitutional or statutory requirement to provide an
accessible, effective and possible remedy whereby alleged victims can seek
recognition and restoration of their rights before resorting to the
international system for protection of human rights. Such procedures should
not be mere formalities that, rather than enable the realisation of those
rights, to the contrary, dilute with time any possibility of success with
respect to their assertion, recognition or exercise.
40. Very clearly, the situation as presented by the Respondent State does
not afford due process of law for protection of the rights that have been
alleged to be violated; the detainees have been denied access to the
remedies under domestic law and have thus been prevented from exhausting
them. Furthermore, there has been unwarranted delay in bringing these
detainees to justice.
41. For these reasons, the African Commission declares this communication
admissible.
RULING BY THE AFRICAN COMMISSION ON REQUEST BY THE RESPONDENT STATE TO
REVISIT THE DECISION ON ADMISSIBILITY
42. The present communication was declared admissible at the 33rd Ordinary
Session of the African Commission's held in May 2003. In response to the
African Commission's request for written submissions on the merits, the
Respondent State in a Note Verbale expressed its dismay at the African
Commission's decision to declare the matter admissible. They stated that
they found the African Commission's decision on admissibility unacceptable
and therefore requested that the African Commission revisits its decision on
admissibility.
43. Before dealing with the merits of the communication, the African
Commission would like to pronounce itself on the request by the Respondent
State to revisit its decision on admissibility.
44. Firstly, it should be noted that the Respondent State did not bring any
new element, either on the facts of the case as considered by the African
Commission or on the legal grounds upon which he is making such a request.
45. Secondly, Rule 118(2) of the African Commission's Rules of Procedure
stipulate that:
"If the Commission has declared a communication inadmissible under the
Charter, it may reconsider this decision at a later date if it receives a
request for reconsideration�"
The Rules of Procedure do not make provision for the African Commission to
revisit its decision once a communication has been declared admissible.
Furthermore, it has been the practice of the African Commission not to
reconsider a decision declaring a communication admissible.
For these reasons the African Commission upholds its decision on
admissibility in this matter.
MERITS
46. The African Commission delivered its decision on admissibility of this
communication at its 33rd Ordinary Session and informed the parties of its
decision on 10th June 2003. The Secretariat of the African Commission
further requested the parties to forward their submissions on the merits of
the communication within 3 months. Whereas the Complainants forwarded their
written submissions on the merits of the communication, none were received
from the Respondent State. It is an established principle of the African
Commission that where allegations of violations of provisions of the African
Charter go uncontested by the Government concerned, the African Commission
must decide on the facts as given. This principle also conforms to the
practice of other international human rights adjudicatory bodies. In the
present communication therefore, the African Commission is left with no
alternative but to proceed and deliver a decision on the merits based on the
submissions of the Complainants. [FN4] Although the African Commission has
in this decision referred to the oral submissions made by the Respondent
State during the 33rd Ordinary Session, especially as they relate to some
issues that touch upon the merits of the communication, the Respondent
State's failure to present comprehensive submissions on the merits has been
done at its own peril.
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[FN4] Communication 74/92 - Commission Nationale des Droits de l'Homme et
des Libertes/Chad and 232/99 - John D. Ouko/Kenya
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47. By Note Verbale dated 20th May 2002, the Respondent State informed the
African Commission that the 11 persons had indeed been detained for "conspiring to overthrow the legal government of the country in violation of
relevant OAU resolutions, colluding with hostile foreign powers with a view
to compromising the sovereignty of the country, undermining Eritrean
National Security and endangering Eritrean society and the general welfare
of its people". The Respondent State further stated that such detention was
in conformity with the criminal code of the country. In their oral
submissions made during the 33rd Ordinary Session in May 2003, the
Respondent State further admitted that they had not at the time brought the
11 detainees before any court of law.
48. The Complainants aver that the 11 persons who were former Eritrean
Government officials, had been openly critical of the Eritrean government
policies and as a direct result of their open letter criticising the
government of Eritrea for acting in an illegal and unconstitutional manner,
they were arrested and detained for committing "crimes against the nation's
security and sovereignty."
49. The Complainants state that the 11 detainees have since September 2001
been held incommunicado and have never been brought before any courts of law
in violation of Article 17(4) of the Constitution of the State of Eritrea
and Article 6 of the African Charter. Article 17 (4) of the Constitution
provides that every person who is held in detention must be brought before a
court of law within 48 hours of his arrest and no person shall be held in
custody beyond such a period without the authority of the court.
50. The Complainants submit that the abovementioned acts by the Respondent
State violate Articles 2, 6 and 7(1) of the African Charter.
51. Article 2 of the African Charter provides:
"Every individual shall be entitled to the enjoyment of the rights and
freedoms recognised and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, colour, sex, language,
religion, or any other opinion, national or social origin, fortune, birth or
other status."
Article 6 of the African Charter provides:
"Every individual shall have the right to liberty and to the security of his
person. No one may be deprived of his freedom except for reasons and
conditions previously laid down by law. In particular, no one may be
arbitrarily arrested or detained"
Article 7(1) of the African Charter provides:
Every individual shall have the right to have his cause heard. This
comprises
a) The right to an appeal to competent national organs against acts of
violating his fundamental rights as recognised and guaranteed by
conventions, laws, regulations and customs in force;
b) The right to be presumed innocent until proved guilty by a competent
court or tribunal;
c) The right to defence, including the right to be defended by counsel of
his choice;
d) The right to be tried within a reasonable time by an impartial court or
tribunal;
52. Although Article 6 of the African Charter guarantees the right to
liberty and security of the person, this is not an absolute right because
the African Charter allows the deprivation of this right through lawful
means. The African Charter specifically prohibits arbitrary arrests and
detention.
53. Evidence before the African Commission indicates that the 11 persons
have been held incommunicado and without charge since they were arrested in
September 2001. This fact has not been contested by the Respondent State.
They are being held in custody and have been cut off from communication with
the outside world, with no access to their lawyers or families. Their
whereabouts are unknown putting their fate under the exclusive control of
the Respondent State.
54. The African Commission on two occasions wrote letters of Appeal to the
President of the State of Eritrea informing him about the communication
before the African Commission and requested him to intervene in the matter
to ensure that the 11 persons are removed from secret detention and brought
before the courts of law in Eritrea. In a Note Verbale dated 20th May 2002,
the Ministry of Foreign Affairs of the State of Eritrea informed the African
Commission that the 11 persons were being held in appropriate government
facilities, that they had not been ill-treated and had access to medical
services. The Ministry assured the African Commission that the government
was making every effort to bring them before an appropriate court of law as
early as possible. The African Commission notes that to date it has not
received any information or substantiation from the Respondent State
demonstrating that the 11 persons were being held in appropriate detention
facilities and that they had been produced before courts of law.
55. Incommunicado detention is a gross human rights violation that can lead
to other violations such as torture or ill-treatment or interrogation
without due process safeguards. Of itself, prolonged incommunicado detention
and/or solitary confinement could be held to be a form of cruel, inhuman or
degrading punishment and treatment. The African Commission is of the view
that 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. Furthermore,
every detained person must have prompt access to a lawyer and to their
families and their rights with regards to physical and mental health must be
protected as well as entitlement to proper conditions of detention [FN5].
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[FN5] Consolidated communication 143/95, 150/96 - Constitutional Rights
Project and Civil Liberties Organisation/Nigeria
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56. The African Commission holds the view that 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. In any event, detention should not continue
beyond the period for which the State can provide appropriate justification.
Therefore, persons suspected of committing any crime must be promptly
charged with legitimate criminal offences and the State should initiate
legal proceedings that should comply with fair trial standards as stipulated
by the African Commission in its Resolution on the Right to Recourse and
Fair Trial [FN6] and elaborated upon in its Guidelines on the Right to Fair
Trial and Legal Assistance in Africa[FN7]
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[FN6] Adopted by the African Commission at its 11th Ordinary Session held
from 2nd to 9th March 1992 in Tunis, Tunisia.
[FN7] Adopted by the African Commission at its 33rd Ordinary Session held
from 15th to 29th May 2003 in Niamey, Niger.
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57. In the present communication, the Respondent State did not provide the
African Commission with any details regarding the specific laws under which
the 11 persons were detained but instead generally states that their
detention is in "consonance with the existing criminal code �and other
relevant national and international instruments". The 11 persons were
detained on account of their political beliefs and are being held in secret
detention without any access to the courts, lawyers or family. Regrettably,
these persons' rights are continually being violated even today, as the
Respondent State is still holding them in secret detention in blatant
violation of their rights to liberty and recourse to fair trial [FN8].
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[FN8] Consolidated communication 140/94, 141/94, 145/95 - Constitutional
Rights Project, Civil Liberties Organisation and Media Rights
Agenda/Nigeria; UNHRC Communication 440/1990
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58. The Complainants further allege that the 11 persons were arrested and
detained because they expressed opinions that were critical of the
Respondent State. The Complainants submit that this amounts to a violation
of Article 9 (2) of the African Charter, which provides:
"Every individual shall have the right to express and disseminate his
opinions within the law"
59. The right to freedom of expression has been recognised by the African
Commission as a fundamental individual human right which is also a
cornerstone of democracy and a means of ensuring the respect for all human
rights and freedoms. [FN9] Nonetheless, this right carries with it certain
duties and responsibilities and it is for this reason that certain
restrictions on freedom of expression are allowed. However, Article 9(2) as
well as Principle II(2) of the Declaration of Principles on Freedom of
Expression in Africa categorically state that such restrictions have to be
provided for by law[FN10].
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[FN9] Preamble to the Resolution on the Adoption of the Declaration of
Principles on Freedom of Expression in Africa adopted by the African
Commission at its 32nd Ordinary Session held from 17th to 23rd October 2003
in Banjul, The Gambia
[FN10] Principle II(2) of the Declaration of Principles on Freedom of
Expression in Africa provides "any restrictions on freedom of expression
shall be provided for by law, serve a legitimate interest and be necessary
and in a democratic society
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60. It is a well settled principle of the African Commission that any laws
restricting freedom of expression must conform to international human rights
norms and standards relating to freedom of expression [FN11] and should not
jeopardise the right itself. In fact, the African Charter in contrast to
other international human rights does not permit derogation from this or any
other right on the basis of emergencies or special circumstances.
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[FN11] Consolidated communication 140/94, 141/94, 145/95 - Constitutional
Rights Project, Civil Liberties Organisation and Media Rights Agenda/Nigeria
--------------------------------------------------------------------------------
61. Consequently, if any person expresses or disseminates opinions that are
contrary to laws that meet the aforementioned criteria, there should be due
process and all affected persons should be allowed to seek redress in a
court of law. [FN12]
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[FN12] Communication 232/99 - John Ouko/Kenya
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62. The facts as presented leave no doubt in the mind of the African
Commission that the Respondent State did indeed restrict the 11 persons'
right to free expression. No charges have been brought against the 11
persons and neither have they been brought before the courts. Such
restrictions not only violate the provisions of the African Charter but are
also not in conformity with international human rights standards and norms.
FOR THE ABOVE REASONS, THE AFRICAN COMMISSION
Finds the State of Eritrea in violation of Articles 2, 6, 7(1) and 9(2) of
the African Charter on Human and Peoples' Rights;
Urges the State of Eritrea to order the immediate release of the 11
detainees, namely, Petros Solomon, Ogbe Abraha, Haile Woldetensae, Mahmud
Ahmed Sheriffo, Berhane Ghebre Eghzabiher, Astier Feshation, Saleh Kekya,
Hamid Himid, Estifanos Seyoum, Germano Nati, and Beraki Ghebre Selassie; and
Recommends that the State of Eritrea compensates the abovementioned persons.
Done at the 34th Ordinary Session of the African Commission held from 6th to
20th November 2003, in Banjul, The Gambia. |
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