A/HRC/WGAD/2015/9

GE.15-12159(E)

*1512159*

Human Rights Council

Working Group on Arbitrary Detention

Opinion adopted by the Working Group on Arbitrary

Detention at its seventy-second session, 20-29 April 2015

No. 9/2015 (Sudan)

Communication addressed to the Government on 18 February 2015

Concerning Amin Mekki Medani, Farouk Abu Eissa and Farah Ibrahim Mohamed

Alagar

The Government has not replied to the communication.

The State is 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 the

mandate in its decision 2006/102 and extended it for a three-year period in its

resolution 15/18 of 30 September 2010. The mandate was extended for a further three years

in resolution 24/7 of 26 September 2013. In accordance with its methods of work

(A/HRC/16/47 and Corr.1, annex), 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 States 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);

* The Sudan acceded to the International Covenant on Civil and Political Rights on 18 March 1986.

United Nations

A/HRC/WGAD/2015/9

General Assembly

Distr.: General

5 August 2015

Original: English

A/HRC/WGAD/2015/9

2

(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);

(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.

Amin Mekki Medani, 75 years old, is a human rights lawyer. He is the President of

the Confederation of Civil Society Organisations of the Sudan and former President of the

Sudan Human Rights Monitor.

4.

Farouk Abu Eissa, 78 years old, is the Chair of the National Consensus Forces of the

Sudan, an umbrella of political opposition parties, and has a long history of political

activism calling for democratic transformation in the Sudan. He is a former Secretary-

General of the Arab Lawyers’ Union and the National Democratic Alliance.

5.

Farah Ibrahim Mohamed Alagar, 60 years old, is a retired officer from the Sudanese

Armed Forces and was formally the Chair of the National Congress Party in Blue Nile

State. He was later engaged in April 2014 as an independent conflict resolution expert by

the Sudan People’s Liberation Movement-North to attend ongoing peace talks in Addis

Ababa between the Movement and the Government of the Sudan.

6.

On 3 December 2014, during a meeting in Addis Ababa, Mr. Medani and Mr. Eissa

signed the Sudan Call, a political declaration on the establishment of a State of citizenship

and democracy, together with two Sudanese political and armed opposition groups. The

source reports that the Sudan Call is a declaration that commits signatories to work to end

the conflicts raging in different regions of the Sudan. The document is also a pledge to

work towards legal, institutional and economic reforms.

7.

Mr. Medani and Mr. Eissa returned to Khartoum from Addis Ababa on 4 and

5 December 2014, respectively. According to the source, on 6 December 2014, at

approximately 11 p.m., seven plain-clothed men in a utility vehicle arrested Mr. Medani at

his home in Khartoum. The men who carried out the arrest are believed to be members of

the National Intelligence and Security Service of the Sudan.

8.

The source reports that Mr. Medani suffers from heart problems and has high blood

pressure, for which he has been prescribed medication. He is also diabetic and follows a

strict dietary regime. During his arrest, he was allegedly informed that there was no need

for him to bring his medication with him and that he would return home soon. After he did

not return home following his arrest, his family went to the reception office of the National

Intelligence and Security Service in Airport Street, Khartoum, to deliver his medication. It

is not clear, however, whether he received it.

9.

According to the source, that same night, Mr. Eissa was arrested at his home in

Khartoum by seven plain-clothed men. Mr. Eissa suffers from stenosis, high blood pressure

and diabetes, for which he takes regular medication. During his arrest, he was not able to

A/HRC/WGAD/2015/9

3

take all of his medication with him. The following day, his family went to the National

Intelligence and Security Service offices in Khartoum to deliver his medication, but did not

receive any confirmation that it would be delivered to him. His family was informed that

they were not allowed to see him.

10.

The source reports that, on 7 December 2014, at 1 a.m., Mr. Alagar was arrested by

approximately 10 members of the National Intelligence and Security Service at his home in

the Alfitihab neighbourhood of Omdurman. Mr. Alagar had also attended the Sudan Call

negotiations in Addis Ababa but had not signed the resulting document. He was taken to the

offices of the Service in Khartoum Bahri and was not provided with any reason for his

arrest.

11.

On 9 December 2014, several special procedures mandate holders of the Human

Rights Council, including the Chair-Rapporteur of the Working Group on Arbitrary

Detention, the Chair-Rapporteur of the Working Group on Enforced or Involuntary

Disappearances, the Special Rapporteur on the right of everyone to the enjoyment of the

highest attainable standard of physical and mental health, the Special Rapporteur on the

situation of human rights defenders and the Special Rapporteur on torture and other cruel,

inhuman or degrading treatment or punishment, transmitted a joint urgent appeal to the

Government of the Sudan. They expressed grave concern regarding the alleged arbitrary

arrest and incommunicado detention of Mr. Medani and Mr. Eissa, and the lack of

information about their current fate and whereabouts. Serious concerns were expressed

regarding their health while in detention, given their critical medical condition and the

allegations that they did not have access to their medication in detention.

12.

On 12 December 2014, the Government responded by letter to a request for

information with regard to Mr. Medani and Mr. Eissa from the Africa Branch of the Office

of the United Nations High Commissioner for Human Rights (OHCHR). The letter

conveyed the following details:

(a)

The two above-mentioned citizens of the Sudan had recently signed an agreement

entitled “Sudan Call” to form an alliance with a rebel group called the Sudanese

Revolutionary Front. The latter had declared it was launching war against the State;

(b)

Performing its responsibility to protect national security in the Sudan, the authorities

concerned had arrested Mr. Medani and Mr. Eissa to conduct investigations into the

agreement signed with a Sudanese rebel group.

13.

The source reports that, from the time of their arrest until 21 December 2014,

Messrs. Medani, Eissa and Alagar had been held incommunicado by the National

Intelligence and Security Service.

14.

On 21 December 2014, they were transferred from the custody of the National

Intelligence and Security Service to Kober prison in Khartoum. On that day, Mr. Alagar

was reportedly allowed to receive a 30-minute visit from his family. The visit was attended

by members of the Service, who allegedly ordered him not to discuss his treatment or the

conditions of his detention.

15.

On that same day, it is reported that seven members of the National Intelligence and

Security Service raided the offices in Khartoum of the Sudan Human Rights Monitor,

which Mr. Medani had founded. A number of laptop computers and documents were

confiscated.

16.

On 22 December 2014, the three men were permitted to meet with a team of

lawyers. On the same day, Mr. Eissa, owing to high blood pressure, was briefly taken to

Alamal Hospital, which is owned by the National Intelligence and Security Service, and he

also received a visit from his family.

A/HRC/WGAD/2015/9

4

17.

On 24 December 2014, Mr. Medani received a visit from his family. The source

reports that his family had since been permitted to take him food compatible with his health

needs as a diabetic.

18.

The source submits that the deprivation of liberty of Messrs. Medani, Eissa and

Alagar may be considered arbitrary as it falls within categories I, II and III of the categories

applicable to the cases submitted to the Working Group for consideration. The source

argues that their detention is without legal basis as the three men remain detained in Kober

prison in Khartoum without any formal charges having been brought against them to date

by the Government. This is in violation of article 9 of the Universal Declaration of Human

Rights and articles 9 (1) and (2) of the International Covenant on Civil and Political Rights,

thereby rendering the detention arbitrary as it falls within category I.

19.

The source additionally submits that the arrests are believed to be connected to the

men’s participation in the Sudan Call political negotiations held in early December 2014 in

Addis Ababa. In this respect, their detention is thought to be connected solely to the

peaceful expression of their beliefs in favour of democratic principles and peace and

security in the Sudan. The source argues that this is in violation of articles 19 and 20 of the

Universal Declaration of Human Rights and articles 19 and 21 of the International

Covenant on Civil and Political Rights, thereby rendering the detention arbitrary as it falls

within category II.

20.

The source recalls that Messrs. Medani, Eissa and Alagar were detained

incommunicado until 21 December 2014, without access to any legal assistance and

without any information on the reason for their detention or on the legal basis justifying

their deprivation of liberty. Since the date of their arrests they have not been brought before

a judicial authority, contrary to article 9 (3) of the International Covenant on Civil and

Political Rights. They have also been denied the right to challenge the lawfulness of their

detention before a court and to be released if the court finds the detention unlawful pursuant

to article 9 (4) of the Covenant. They have not been entitled to a fair and public hearing by

an independent and impartial tribunal, in the determination of their rights and obligations

and of any criminal charge against them, contrary to article 10 of the Universal Declaration

of Human Rights. In violation of article 14 (3) (b) of the Covenant, for a period of two

weeks they were further denied their right to communicate with counsel of their own

choosing. The non-observance of the international norms relating to the right to a fair trial

places the deprivation of liberty of Messrs. Medani, Eissa and Alagar within category III.

Response from the Government

21.

The Working Group regrets that the Government has not responded to the

allegations transmitted by the Group on 18 February 2015.

22.

Despite the absence of any information from the Government, the Working Group

considers that it is in a position to render its opinion on the detention of Messrs. Medani,

Eissa and Alagar in conformity with paragraph 16 of its methods of work.

Discussion

23.

The Government chose not to rebut the reliable prima facie allegations submitted by

the source, according to which Mr. Medani and Mr. Eissa were deprived of their liberty for

having signed a political document that committed its signatories to work towards ending

the conflicts raging in different regions of the Sudan. The document was also a pledge to

work towards legal, institutional and economic reforms. Mr. Alagar has been deprived of

his liberty for having been present at the meeting at which the document was signed.

24.

The OHCHR Africa Branch was informed by the Government in a letter of

12 December 2014 that the Sudan Call was signed to form an alliance with a rebel group

A/HRC/WGAD/2015/9

5

called the “Sudanese Revolutionary Front” which, according to the Government, declared it

was launching war against the State. The Government maintained that the authorities

arrested the two men to conduct investigations with them into the agreement with a

Sudanese rebel group.

25.

The Working Group considers that Mr. Medani, a prominent human rights defender

and former OHCHR Regional Representative for the Arab region, Mr. Eissa, the leader of

the opposition party National Consensus Forum, and Mr. Alagar have been deprived of

their liberty for peacefully exercising their right to freedom of expression.

26.

The Working Group recalls that restrictions on the exercise of the right to freedom

of expression may never be invoked as a justification for the muzzling of any advocacy of

multiparty democracy, democratic tenets and human rights (see general comment No. 34

(2011) on freedoms of opinion and expression, para. 23).

27.

In this case, Messrs. Medani, Eissa and Alagar have been deprived of liberty for

having peacefully exercised their right to freedom of expression as guaranteed by article 19

of the Universal Declaration of Human Rights and article 19 of the International Covenant

on Civil and Political Rights. Their deprivation of liberty thus falls within category II of the

categories applicable to the cases submitted to the Working Group for consideration.

28.

Furthermore, in violation of article 9 (2) of the International Covenant on Civil and

Political Rights, Messrs. Medani, Eissa and Alagar were not informed at the time of arrest,

of the reasons for their arrest. They have never been informed of any charges against them,

in violation of the same provision of the Covenant.

29.

Messrs. Medani, Eissa and Alagar have not been brought before a judicial authority

since December 2014, contrary to article 9 (3) of the International Covenant on Civil and

Political Rights, which requires that anyone arrested or detained on a criminal charge be

brought promptly before a judicial authority. Moreover, pursuant to article 9 (4) of the

Covenant, they have been denied the right to challenge the lawfulness of their detention

before a court and to be released if the court finds the detention unlawful.

30.

Since December 2014, Messrs. Medani, Eissa and Alagar have been detained

without charge and have never been brought before a judicial authority as required by

article 9 (3) of the International Covenant on Civil and Political Rights. In violation of

article 9 (4) of the Covenant, they have also been deprived of the right to challenge the

lawfulness of their detention before a court.

31.

The Working Group considers that in this case the non-observance of the

international norms relating to the right to a fair trial, established in articles 9 and 10 of the

Universal Declaration of Human Rights and article 9 of the International Covenant on Civil

and Political Rights, is of such gravity as to give the deprivation of liberty of Messrs.

Medani, Eissa and Alagar an arbitrary character.

32.

The deprivation of liberty of Messrs. Medani, Eissa and Alagar thus falls within

categories I and III.

Disposition

33.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Amin Mekki Medani, Farouk Abu Eissa and Farah Ibrahim

Mohamed Alagar is arbitrary, being in contravention of articles 9, 10 and 19 of the

Universal Declaration of Human Rights and articles 9 and 19 of the International Covenant

on Civil and Political Rights and falls within categories I, II and III of the categories

applicable to the cases submitted to the Working Group for consideration.

A/HRC/WGAD/2015/9

6

34.

Consequent upon the opinion rendered, the Working Group requests the

Government to take the steps necessary to remedy the situation of Messrs. Medani, Eissa

and Alagar and bring it into conformity with the standards and principles set forth in the

Universal Declaration of Human Rights and the International Covenant on Civil and

Political Rights.

35.

The Working Group believes that, taking into account all the circumstances of the

case, the adequate remedy would be to release Messrs. Medani, Eissa and Alagar and

accord them an enforceable right to compensation in accordance with article 9(5) of the

International Covenant on Civil and Political Rights.

36.

In accordance with article 33 (a) of its methods of work, the Working Group

considers it appropriate to refer the allegations of torture to the Special Rapporteur on

torture and other cruel, inhuman or degrading treatment, for appropriate action.

[Adopted on 24 April 2015]