Opinion; Subjects: ETHIOPIA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.13-16288
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its sixty-fifth session, 14–23 November 2012
No. 62/2012 (Ethiopia)
Communication addressed to the Government on 27 July 2012
Concerning Eskinder Nega
The Government did not reply to the communication within the 60-day deadline.
The State is a party to the International Covenant on Civil and Political Rights.
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the former Commission on Human Rights, which extended and clarified the Working
Group’s mandate in its resolution 1997/50. The Human Rights Council assumed that
mandate in its decision 2006/102 and extended it for a three-year period in its resolution
15/18 of 30 September 2010. In accordance with its methods of work (A/HRC/16/47,
annex, and Corr.1), the Working Group transmitted the above-mentioned communication to
the Government.
2.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to the detainee) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as State parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the International Covenant on Civil and Political Rights (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
United Nations
A/HRC/WGAD/2012/62
General Assembly
Distr.: General
9 August 2013
Original: English
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(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law for
reasons of discrimination based on birth; national, ethnic or social origin; language;
religion; economic condition; political or other opinion; gender; sexual orientation; or
disability or other status, and which aims towards or can result in ignoring the equality of
human rights (category V).
Submissions
Communication from the source
3.
Mr. Eskinder Nega is a prominent independent journalist and blogger in Addis
Ababa.
Background of the petitioner and past periods spent in detention
4.
Mr. Nega began his career in 1993 when he founded the Ethiopis newspaper, which
was later closed by the Government. He is also founder of three publications which were
also banned: the English weekly, Habesha, and Dehai. Mr. Nega has further frequently
contributed to other publications as a columnist. These include the monthly magazine
Change and the online new forum EthioMedia, both also banned in the country. Although
Mr. Nega is well known for his political views and criticism of the Government, he is not
affiliated to any political party.
5.
Mr. Nega has been placed in detention for eight different periods over the last two
decades. In 2005, Mr. Nega was arrested with his wife, Ms. Serkalem Fasil, in the context
of the electoral process in Ethiopia. Both were charged with “outrages against the
Constitution”, “impairment of the defensive power of the State”, and “attempted genocide”.
Released on 9 April 2007, after approximately 17 months in detention, Mr. Nega’s and Ms.
Fasil’s journalistic work continued to be subject to regular interference by the authorities.
Their Sekalem Publishing Company was fined and dissolved in July 2007. In January 2009,
the Government blocked Mr. Nega and Ms. Fasil from relaunching the publishing house.
Nevertheless, Mr. Nega continued to write, primarily for online publications based outside
Ethiopia.
6.
Mr. Nega was again briefly detained on 11 February 2011 after having published an
article online featuring the picture of a former general. He was accused of trying to incite an
“Egyptian-like protest in Ethiopia” and he was also warned by the police about a possible
conviction in the future.
7.
Notwithstanding the warning he received and the police surveillance that followed,
Mr. Nega continued to publish articles about the protests taking place in Egypt, Libya and
Tunisia. While discussing the impact that such events could have on the political situation
in Ethiopia, Mr. Nega repeatedly emphasized in his articles the importance of non-violence.
Pretrial detention and charges brought against Mr. Nega
8.
On 14 September 2011, Mr. Nega was arrested by the federal police while driving in
Addis Ababa to pick up his son from kindergarten. His writings, documents, 80 compact
discs, some currency, car, laptop and mobile telephone were seized by the police. He was
then transferred to the Maekelawi Federal Police Criminal Investigation Prison. Mr. Nega
was not presented with an arrest warrant pursuant to article 19, paragraph 1, of Ethiopia’s
Anti-Terrorism Proclamation No. 652/2009 (hereinafter the 2009 Anti-Terrorism
Proclamation).
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9.
On 15 September 2011, he was remanded in police custody until 12 October 2011 to
allow police additional time to investigate. Article 20, paragraph 5, of the 2009 Anti-
Terrorism Proclamation requires pretrial detention for terrorism suspects. While in pretrial
detention, Mr. Nega did not have access to legal counsel or members of his family.
10.
On 10 November 2011, Mr. Nega along with 23 other individuals was charged
before the Lideta Federal High Court with terrorism and treason. This was the first time
since his arrest that Mr. Nega had access to legal counsel. In the Government’s charging
sheet, Mr. Nega is accused of having violated articles 32(1)a, 38(1), 248(b), and 252(1)a of
Ethiopia’s 2004 Criminal Code as well as articles 3, paragraphs 1-4, 4, 6 and 7, paragraph
2, of the 2009 Anti-Terrorism Proclamation.
11.
In the source’s view not only are articles 4 and 6 of the 2009 Anti-Terrorism
Proclamation excessively broad, but also the charges in this case are not supported by
factual allegations contained in the Government’s charge sheet. The source declares that the
only relevant part in the document which refers to factual allegations provides as follows:
Since 2003 E.C. [September 2010], at a time that is not known, by using as cover his
constitutional right to freedom of expression, in order to put an end to the Constitution and
the constitutional system through an organized terrorist act, [Mr. Nega] served as a local
agent of the terrorist organization Ginbot 7; accepted terrorist mission; in collaboration with
the terrorist organization organized in secret in the country, made terrorist plans, and
coordinated the planned terrorism with members of the terrorist organization that are in the
country and abroad; disseminated calls for terrorism and violence; disseminated mobilizing
materials in different ways; collected information that he directly passed on to Ginbot 7 and
indirectly to the enemy of the Eritrean Government and other terrorist organization; called
meetings that had terrorist mission and took decisions on different terrorist actions (English
translation of the Prosecutor’s Charging Document, Prosecutor’s File No. 00190/04, 10
November 2011).
12.
On 24 January 2012, the third criminal bench of the Lideta Federal High Court
confirmed the charges against Mr. Nega and scheduled the beginning of the trial for 5
March 2012. However, due to amended pleadings submitted by the Government lawyers,
the trial proceedings did not recommence until 24 March 2012.
Trial proceedings
13.
During the trial, both the prosecution and defence were given an opportunity to
present evidence to the court. The prosecution submitted to the court a series of Mr. Nega’s
writings and interviews as evidence of his guilt. During the proceedings, prosecutors
showed video evidence that Mr. Nega had spoken at events sponsored by different
opposition parties in Ethiopia.
14.
Mr. Nega addressed the court and admitted to calling for peaceful protests in
Ethiopia; however, he expressly denied advocating violence (English translation of his
defence statement). Mr. Nega reiterated that “Ethiopia needs change in a peaceful
democratic manner”. The defence also presented a 70-minute video recording of a meeting
of the Unity for Democracy and Justice opposition party, which Mr. Nega was invited to
address. The defence played the full video to show that the Government had selectively
used clips of the video out of context during its presentation. In the video, Mr. Nega
emphasized that any protests should be “peaceful and legal”. Mr. Nega also spoke of the
video recorded opposition event in his statement to the court, saying that: “I was invited to
write something. I accepted the invitation without hesitation, because I believe that it is my
right to participate and get involved. As much as I could I wanted to encourage people to
get involved and discuss in a peaceful manner the current situation of our country and get
their views across” (English translation of Mr. Nega’s defence statement).
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15.
In April 2012, the court held a “trial within a trial” after prosecutors complained that
local independent media coverage by the Fareh and Negradas newspapers portrayed the
proceedings as politically motivated and the defendants as falsely accused. Prosecution
requested the court to find that the coverage was unbalanced and order the papers to publish
a correction. On 22 April 2012, the court convicted journalist, Mr. Temesgen Desalegn, of
interfering with the proceedings and sentenced him to four months in prison or a fine of
2,000 birr (approximately equivalent to US$ 114).
Verdict and sentencing of Mr. Nega
16.
Although a verdict in Mr. Nega’s case was expected on 11 May 2012, the court
postponed its announcement twice. On 27 June 2012, the court found Mr. Nega and his co-
defendants “guilty as charged”.
17.
In presenting the verdict, Judge Endeshaw Adane accused Mr. Nega of abusing his
right to freedom of expression and threatening national security: “Under the guise of
freedom of speech and gathering, the suspects attempted to incite violence and overthrow
the constitutional order.” Judge Adane accused Mr. Nega of writing “articles that incited
the public to bring the North African and Arab uprisings to Ethiopia” and indicated that
evidence against the defendants included speeches, articles, e-mails, phone calls and social
media messages. He warned that “[f]reedom of speech can be limited when it is used to
undermine security and not used for the public interest” and concluded that “[t]here is no
way other than democratic elections to attain power in the country, and what [the
defendants] said is clearly against the Constitution”.
18.
In response to the verdict, Mr. Nega re-emphasized his innocence stating that: “I
have struggled for peaceful democracy and I have never disrespected any individual and I
did not commit a crime … [m]y conscience is clear.” He insisted that: “You have to stand
for justice, you have to allow us to say what we want … you have no right to limit our
freedom of speech.”
19.
It is reported that, shortly after the proceedings closed, Mr. Nega was placed in
solitary confinement until 29 June 2012. While in pretrial detention, Mr. Nega was
allegedly beaten, forced to stand for hours upon end, deprived of sleep and had cold water
poured over him. On 13 July 2012, the court sentenced Mr. Nega to 18 years of
imprisonment.
Source’s contention regarding the arbitrary character of Mr. Nega’s detention as a result
of his peaceful exercise of the right to freedom of expression
20.
The source submits that Mr. Nega’s prosecution is a direct result of his legitimate
work as an independent journalist and commentator. The source contends that his detention
runs counter to article 19 of the International Covenant on Civil and Political Rights
(ICCPR), article 19 of the Universal Declaration of Human Rights (UDHR) and article 29
of the Constitution of Ethiopia.
21.
Article 19, paragraph 2, of the ICCPR specifically protects the work of journalists
(see Human Rights Committee, communication No. 1334/2004, Mavlonov and Sa’di v.
Uzbekistan (CCPR/C/95/D/1334/2004)) and “includes the right of individuals to criticize or
openly and publicly evaluate their Governments without fear of interference or
punishment”.1 The Human Rights Committee has also emphasized that freedom of
1 Human Rights Committee, communication No. 1128/2002, Marques de Morais v. Angola
(CCPR/C/83/D/1128/2002), para. 6.7.
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expression and “a free and uncensored press” are of “paramount importance”2 in a
democratic society (see the Committee’s general comment No. 25 (1996) on the right to
participate in public affairs, voting rights and the right of equal access to public service,
para. 25).
22.
The source maintains that when the prosecution charged Mr. Nega under the
Criminal Code and the 2009 Anti-Terrorism Proclamation, it acknowledged that the
ultimate motivation behind the case against Mr. Nega was his writings which were critical
of the Government. Prosecutors claimed that Mr. Nega had “use[d] as cover his
constitutional right to freedom of expression”. The evidence submitted by the prosecution
during the trial relied on Mr. Nega’s public writings and speeches, although none of them
advocated the use of violence to prove his guilt. The court specifically identified Mr.
Nega’s work as a journalist and accused him of attempting to incite an Arab Spring-like
movement in Ethiopia. The source contends that the genuine character of the link between
Mr. Nega’s ongoing detention and his peaceful exercise of the right to freedom of
expression finds further support in the past history of intimidation by the authorities and
several periods Mr. Nega had spent in detention (see paragraphs 4-12 above).
23.
The source contests the broad interpretation by the Lideta Federal High Court of the
limitations applicable to the exercise of the right to freedom of expression. The Court stated
that “[f]reedom of speech can be limited when it is used to undermine security and not used
for the public interest”. General comment No. 34 (2011) of the Human Rights Committee
provides that “when a State party imposes restrictions on the exercise of freedom of
expression, these may not put in jeopardy the right itself”. Any permissible restriction must
be: (a) “provided by law”; (b) for the protection of one of the “enumerated purposes”; and
(c) “necessary” to achieve that purpose.3 The source states that the limitation on Mr. Nega’s
free expression was not for a proper purpose and was not necessary.
24.
The source submits that in the case of Mr. Nega the prosecution did not “specify the
precise nature of the threat”4 that the expression posed to the national security of Ethiopia.
Also, “the legitimate objective of safeguarding and indeed strengthening national unity
under difficult political circumstances cannot be achieved by attempting to muzzle
advocacy of multi-party democracy, democratic tenets and human rights”.5 The source
further maintains that the charges against Mr. Nega include the provisions of the 2009 Anti-
Terrorism Proclamation which are exceedingly broad, namely when the law punishes
anyone who “publishes or causes the publication of a statement that is likely to be
understood by some or all of the members of the public to whom it is published as a direct
or indirect encouragement” of terrorism (art. 6). The source also points out that the factual
allegations brought up by the Government lacked any specific details about the exact nature
of the threat.
25.
Even if the Government could invoke the national security exception, the limitation
on Mr. Nega’s freedom of expression was not necessary to achieve that purpose. According
to the source, the Government failed to establish “direct and immediate connection between
the expression and the threat” (general comment No. 34 (see paragraph 23 above), para. 35)
2 Ibid., para. 6.8.
3 Human Rights Committee, communication No. 926/2000, Shin v. Republic of Korea
(CCPR/C/80/D/926/2000), para. 7.2.
4 Communication No. 518/1992, Jong-Kyu Sohn v. Republic of Korea, para. 10.4 (Office of the United
Nations High Commissioner for Human Rights (OHCHR), Selected Decisions of the Human Rights
Committee under the Optional Protocol (United Nations publication, Sales No. 04.XIV.9)).
5 Human Rights Committee, communication No. 458/1991, Mukong v. Cameroon, Views adopted on 21
July 1994, para. 9.7.
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and took measures against Mr. Nega not proportional to the value which the restriction
serves to protect.
Source’s contention regarding the arbitrary character of Mr. Nega’s detention as a result
of partial or total non-observance of his right to a fair trial
26.
The source submits that the continued detention of Mr. Nega is also arbitrary as it
results from grave breaches of the international norms relating to the right to a fair trial.
27.
In particular, the source maintains that the Ethiopian authorities breached article 14,
paragraph 1, of the ICCPR and article 20, paragraph 3, of the Constitution of Ethiopia, Mr.
Nega’s right to be tried by an independent tribunal and his right to the presumption of
innocence, by publicly expressing certainty about his guilt at the highest level. Reportedly,
even before he was formally charged, authorities repeatedly and publicly accused Mr. Nega
of terrorism in the days and weeks following his arrest. The Government’s spokesperson,
Shimeles Kemal, claimed that “[t]he five men were involved in staging a series of terrorist
acts that would likely wreak havoc”, and were connected to Ginbot 7. Similar statements
followed from the Deputy Federal Police Commissioner, Demesash Woldemikael, in
September 2011 and the Prime Minister when addressing the Ethiopian Parliament in
October 2011. Moreover, Mr. Nega has not been allowed unimpeded access to a lawyer in
alleged breach of article 14, paragraphs (b) and (d), of the ICCPR as well as article 21,
paragraph 2, of the Constitution of Ethiopia. After his arrest on 14 September 2011, the
Ethiopian authorities allegedly kept Mr. Nega without access to a lawyer until 10
November 2011. During two pretrial hearings that took place on 15 September 2011 and 28
days later, Mr. Nega did not benefit from any legal assistance. Finally, the source notes that
for almost two months, Mr. Nega was deprived of any access to members of his family, in
alleged contravention of principle 19 of the Body of Principles for the Protection of Persons
under Any Form of Detention or Imprisonment (General Assembly resolution 43/173 of 9
December 1988).
28.
Mr. Nega is currently held in detention in Kaliti Prison. He is expected to appeal
against the court’s sentence dated 13 July 2012.
Response from the Government
29.
The Government did not reply to the Working Group’s communication of 27 July
2012 within the 60-day deadline. In a letter of 5 October 2012, the Government requested
an extension of the deadline, effectively outside the 60-day period for replying to the
allegation, and therefore not granted.
30.
The Working Group would like to point out that it has not yet, by 21 November
2012, received a response to the specific allegations made by the source.
31.
In the absence of a response from the Government, the Working Group is able,
based on its revised methods of work, to render an opinion in the light of the information
submitted to it.
Discussion
32.
In 2011 the Human Rights Committee in its concluding observations on Ethiopia
addressed matters that are relevant to this opinion, including issues such as overly broad
anti-terrorism offences and freedom of expression:
While the Committee appreciates the State party’s need to adopt measures to combat
acts of terrorism, it regrets the unclear definition of certain offences in Proclamation
652/2009 and is concerned by the scope of some of its provisions, including the
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criminalization of encouragement of and inducement to terrorism through publication,
which can lead to abuse against the media (arts. 2, 15 and 19).
The State party should ensure that its anti-terrorism legislation defines the nature of those
acts with sufficient precision to enable individuals to regulate their conduct accordingly.
The State party should ensure that its legislation is limited to crimes that deserve to attract
the grave consequences associated with terrorism, and revise its legislation that imposes
undue restrictions on the exercise of rights under the Covenant.
…
The Committee is concerned by provisions of the Proclamation on the Freedom of
the Mass Media and Access to Information (No. 591/2008), in particular the registration
requirements for newspapers, the severe penalties for criminal defamation, and the
inappropriate application of this law in the combat against terrorism, as illustrated by the
closure of many newspapers and legal charges brought against some journalists. The
Committee is also concerned by reports received about the impossibility of accessing
various foreign websites and radio stations (art. 19).
The State party should revise its legislation to ensure that any limitations on the rights to
freedom of expression are in strict compliance with article 19, paragraph 3, of the Covenant,
and in particular it should review the registration requirements for newspapers and ensure
that media are free from harassment and intimidation.6
33.
In the 2012 report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, concern is expressed that the rights of Mr. Nega and
two other individuals under the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment have been violated. The Special Rapporteur added the
following:
The Special Rapporteur regrets that the Government of Ethiopia has not responded
to this communication, thereby failing to cooperate with the mandate established by the
Human Rights Council. The communication referred to the alleged ill-treatment of Mr.
Eskinder Nega, the alleged torture of Mr. Woubshet Taye, and the lack of access to doctors
of Ms. Reeyot Alemu while in detention. In this context, the Special Rapporteur recalls that
article 12 of the Convention against Torture requires the competent authorities to undertake
a prompt and impartial investigation wherever there are reasonable grounds to believe that
torture has been committed, and article 7 requires State parties to prosecute suspected
perpetrators of torture. In light of the fact that no evidence has been provided to the
contrary, the Special Rapporteur is concerned that the rights of the aforementioned
individuals under the UN Convention against Torture have been violated. The Special
Rapporteur calls on the Government to investigate, prosecute and punish all cases of torture
and ill-treatment and to ensure full redress to the victims.7
34.
On 2 February 2012, five special rapporteurs, the Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression, the Special
Rapporteur on the promotion and protection of human rights and fundamental freedoms
while countering terrorism, the Special Rapporteur on the situation of human rights
defenders, the Special Rapporteur on the rights to freedom of peaceful assembly and of
association, and the Special Rapporteur on the independence of judges and lawyers,
6 Concluding observations of the Human Rights Committee: Ethiopia (CCPR/C/ETH/CO/1 of 19
August 2011), paras. 15 and 24.
7 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, Juan E. Méndez: observations on communications transmitted to Governments and
replies received (A/HRC/19/61/Add.4), para. 53.
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expressed their dismay at the continuing abuse of anti-terrorism legislation to curb freedom
of expression in Ethiopia.8 The Special Rapporteur on the situation of human rights
defenders emphasized that “journalists, bloggers and others advocating for increased
respect for human rights should not be subject to pressure for the mere fact that their views
are not in alignment with those of the Government”. She expressed especial concern over
“the case of Mr. Eskinder Nega, a blogger and human rights defender who may face the
death penalty if convicted. Mr. Nega has been advocating for reform on the issue of the
right to assemble peacefully in public”.9
35.
After the sentencing of Mr. Nega, the United Nations High Commissioner for
Human Rights on 18 July 2012 stated her serious alarm over the current climate of
intimidation against human rights defenders and journalists in Ethiopia, resulting from the
use of “overly broad” laws on terrorism and civil society registration. She stated that:
“The recent sentencing of 20 Ethiopians, including prominent blogger Eskinder Nega,
journalists and opposition figures, under the vague anti-terrorism law has brought into stark
focus the precarious situation of journalists, human rights defenders and Government critics
in the country.
The very harsh sentences handed down to journalists and other Government critics in recent
months, coupled with excessive restrictions placed on human rights NGOs in the country
have had the effect of stifling dissent and seriously undermining the freedom of opinion and
expression in Ethiopia.
Laws to combat terrorism must be consistent with the Government’s human rights
obligations under international conventions as well as the African Charter on Human and
Peoples’ Rights and other regional instruments to which Ethiopia is party … The overly
broad definitions in the July 2009 anti-terrorism law of Ethiopia result in criminalizing the
exercise of fundamental human rights,” she said, adding she was also concerned about
difficult conditions in pre-trial detention and due process in the conduct of the various
trials.10
36.
Finally, the Working Group recalls that in 2012 the African Commission on Human
and Peoples’ Rights adopted a resolution on Ethiopia, stating it was “[g]ravely alarmed by
the arrests and prosecutions of journalists and political opposition members, charged with
terrorism and other offences including treason, for exercising their peaceful and legitimate
rights to freedom of expression and freedom of association”.11
37.
On 13 July 2012, Mr. Nega was sentenced to 18 years of imprisonment for terrorism
and treason offences. These provisions, and the use of national security in this context, are
overly broad.
38.
Overly broad criminal offences are the subject of analysis in opinion No. 54/2012
(Iran (Islamic Republic of)), opinion No. 48/2012 (Iran (Islamic Republic of)), and further
in opinion No. 27/2012 (Viet Nam), paras. 35-39, where the Working Group’s case law is
set out.
8 OHCHR press release, “UN experts disturbed at persistent misuse of terrorism law to curb freedom
of expression”, available at www.ohchr.org.
9 Ibid.
10 OHCHR press release, “Climate of intimidation against rights defenders and journalists in Ethiopia”,
available at www.ohchr.org.
11 At the fifty-first ordinary session of the African Commission on Human and Peoples’ Rights (18
April-2 May 2012).
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39.
The Working Group subjects interventions against individuals who may qualify as
human rights defenders to particularly intense review. See for instance opinion No. 21/2011
(Iran (Islamic Republic of)), opinion No. 54/2012 (Iran (Islamic Republic of)) and opinion
No. 48/2012 (Iran, Islamic Republic of)). Mr. Nega’s role as a human rights defender and
his own role in human rights work, as a publicist and blogger, require the Working Group
to undertake this kind of intense review.
40.
The source has provided convincing facts that the judgement is a consequence of
Mr. Nega’s use of his right to freedom of expression and his activities as a human rights
defender, which the Government has not rebutted. The application of the overly broad
offences in the current case constitutes an unjustified restriction on the rights to freedom of
expression and to a fair trial,12 and constitutes a deprivation of liberty that falls into
category II of the categories applicable to the cases submitted to the Working Group and for
which the remedy is immediate release.
41.
The source has similarly established several breaches of Mr. Nega’s right to a fair
trial. One of these breaches is the lack of legal representation in the pretrial period from 14
September to 10 November 2011 in contravention of article 14, paragraph 3 (b), of the
ICCPR. These breaches constitute a deprivation of liberty that falls into category III of the
categories applicable to the cases submitted to the Working Group.
42.
Article 9, paragraph 5, of the ICCPR provides an enforceable right to compensation
for anyone who has been the victim of unlawful arrest or detention. The Working Group
has in its jurisprudence continued to develop, based on general principles, the right to a
remedy, which primarily is a right to immediate release and to compensation. In this case, it
is clear that Mr. Nega has a claim to compensation under article 9, paragraph 5, of the
Covenant, which is an expression of general principles. The reasons that may be given for
the detention of Mr. Nega cannot be used against a claim for compensation.
43.
In conclusion, the Working Group recalls the critical findings, and its own opinions,
on human rights violations occurring in Ethiopia by United Nations human rights bodies
and the African Commission on Human and Peoples’ Rights.
44.
The Working Group encourages the Government of Ethiopia to cooperate fully with
the Working Group and respect the timelines related to cases being considered by it.
Disposition
45.
In the light of the foregoing, the Working Group on Arbitrary Detention renders the
following opinion:
The deprivation of liberty of Eskinder Nega is arbitrary in violation of articles 9, 10
and 19 of the Universal Declaration of Human Rights and articles 9, 14 and 19 of the
International Covenant on Civil and Political Rights, and falls into categories II and
III of the categories applicable to the cases submitted to the Working Group.
46.
The Working Group requests the Government to take the necessary steps to remedy
the situation, which include the immediate release of Mr. Nega and adequate reparation to
him.
[Adopted on 21 November 2012]
12 The Working Group has in its previous opinion No. 28/2009 (Ethiopia) found a violation of political
free speech rights in a criminal case.