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A/HRC/WGAD/2016/22

Opinion no. 22/2016 concerning Marafa Hamidou Yaya (Cameroon)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2016-04-27 · en UN

Opinion; Subjects: CAMEROON, 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.16-11335 (E) 290716 290716

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Human Rights Council

Working Group on Arbitrary Detention

Opinion adopted by the Working Group on Arbitrary

Detention at its seventy-fifth session (18-27 April 2016)

Opinion No. 22/2016 concerning Marafa Hamidou Yaya

(Cameroon)

1.

The Working Group on Arbitrary Detention was established by resolution 1991/42

of the Commission on Human Rights. The mandate of the Working Group was then

clarified and extended by the Commission in its resolution 1997/50. The Human Rights

Council assumed the mandate in its decision 1/102 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.

2.

In accordance with its methods of work (A/HRC/30/69), on 1 July 2015, the

Working Group transmitted to the Government of Cameroon a communication concerning

Marafa Hamidou Yaya. The Government replied to the communication on 30 September

2015. The State is a party to the International Covenant on Civil and Political Rights.

3.

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

sentence or despite an amnesty law applicable to him) (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);

(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);

United Nations

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General Assembly

Distr.: General

1 July 2016

English

Original: French

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(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation,

disability, or any other status, that aims towards or can result in ignoring the equality of

human rights (category V).

Submissions

Communication from the source

4.

Marafa Hamidou Yaya, aged 61 years, is a politician. He has served as presidential

adviser, Secretary-General of the Office of the President of the Republic, and Minister of

the Interior.

5.

The source states that in 2000, when Mr. Yaya was Secretary-General of the Office

of the President, the Government of Cameroon decided to acquire an aircraft for the

President. At the time, Cameroon was implementing a structural adjustment programme

imposed by the International Monetary Fund and the World Bank. The Government

nevertheless decided to request CamAir, the national airline, to contact GIA International,

an American company with its headquarters in Medford, Oregon. GIA International

subsequently agreed to be the intermediary between the Government of Cameroon and the

Boeing Corporation.

6.

In 2001, the Cameroonian Government allegedly received a proposal from the

Boeing Corporation through GIA for the acquisition of a BBJ-2 for US$ 31 million, with a

down payment of $2 million. On the orders of the Administration, the Minister of the

Economy and Finance directed CamAir to withdraw $2 million from one of its accounts

with the Commercial Bank of Cameroon, and to deposit said amount into a GIA bank

account with Bank of America, also based in Medford. Subsequently, the Minister of the

Economy and Finance ordered the general manager of the national oil company to transfer

$31 million (with the deduction of $2 million to be reimbursed to CamAir) to GIA.

7.

The source states that, after the terrorist attacks of 11 September 2001, the United

States Government misidentified GIA as standing for “Groupe Islamique Armé” (Armed

Islamic Group) and as a result froze all GIA accounts. GIA and the Boeing Corporation

therefore decided, in the light of the temporary insolvency of GIA, that the next BBJ-2

aircraft would be reserved for GIA.

8.

In 2002, Mr. Yaya was replaced as Secretary-General of the Office of the President.

His successor terminated the contracts with GIA and CamAir, and cancelled the order of a

BBJ-2 on account of the Government’s interest in a different model, the 767-200.

9.

The source maintains that GIA was then declared insolvent even though it still owed

$31 million to the Government of Cameroon, following the transfer made to it in 2002.

10.

In response, the Government of Cameroon lodged a complaint against GIA with a

United States federal court, the United States Federal Bankruptcy Court in the state of

Oregon, in order to recover the $31 million owed to it. On 3 September 2004, the forensic

accountant hired an accountant.

11.

The source states that in 2006, the United States federal court approved an amicable

settlement proposed by the Parties. Under the settlement agreement, Cameroon received

$858,163.27, a Boeing 767 valued at $16 million and a cash refund of $1.5 million from the

sale of a Boeing 747 aircraft. The source alleges that the Government of Cameroon refused

to finance a detailed audit of all funds transferred from the Government of Cameroon and

CamAir to third parties. The source further alleges that, according to the accountant, the

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Government of Cameroon did not support his work relating to the review and quantification

of the Government’s claims for reimbursement.

12.

According to the source, on 4 August 2008, a police report concluded that no

evidence could be found regarding the embezzlement of public funds by Mr. Yaya in the

BBJ-2 case. However, this report was not included in the case file following Mr. Yaya’s

arrest.

13.

On 2 February 2010, a report of the Public Prosecutor for the High Court of

Mfoundi concluded that no evidence could be found regarding the embezzlement of public

funds by Mr. Yaya in the BBJ-2 case. However, this report was also not included in the

case file following Mr. Yaya’s arrest.

14.

The source reports that, at a press conference held on 2 September 2013, the lawyer

who had represented the Government of Cameroon in the proceedings before the federal

court in Oregon stated that Cameroon had been fully compensated for its loss. Nevertheless,

this lawyer refused to testify in the case in 2012 citing as a reason the lawyers’ code of

conduct.

15.

According to the information received, on 11 April 2012, Mr. Yaya received a letter

in which the Public Prosecutor for the High Court of Mfoundi requested him to testify in

the preliminary investigation of Jean-Marie Atangana Mebara, Hubert Patrick Marie Otele-

Essomba, Jérôme Mendouga, Yves Michel Fotso, Kevin Joseph Walls and others, all of

whom had all been accused of conspiracy and coercion in the misappropriation of public

funds.

16.

On 12 April 2012, Mr. Yaya filed an application with the Upper Regional Court

requesting that the judge considering the case be replaced, owing to a conflict of interest

and pursuant to section 591 of the Code of Criminal Procedure. There was no response to

that request. In violation of section 598 of the Code of Criminal Procedure, the preliminary

investigations were not suspended until a decision had been handed down by the Court, and

the Court itself refused to take a stance on the matter.

17.

On 16 April 2012, Mr. Yaya was called before the High Court of Mfoundi. Neither

Mr. Yaya nor his lawyer was given access to the preliminary investigation file, which was

not yet available. This was in violation of section 172 (3) of the Code of Criminal

Procedure, which provides that a defendant’s case file be placed at the disposal of his or her

counsel 24 hours before a trial. This also constitutes a violation of section 37, section 165

(3) (a) and section 165 (5) (b) of the Code, which establish the defendant’s right to access

his or her case file. Moreover, the request from Mr. Yaya’s lawyer to examine the witness

statements obtained during the preliminary investigation was rejected, in violation of

section 172 (3); this in turn negatively affected the preparation of the defence.

18.

On the day of his testimony, Mr. Yaya was arrested in the chamber of magistrates of

the High Court of Mfoundi, by the multidisciplinary gendarmerie intervention unit

(GPIGM), after invoking his right not to testify and referring to his statement of 2008

before the Public Prosecutor. According to the information received, no arrest warrant was

presented and Mr. Yaya was not informed of the reasons for his arrest, in violation of

sections 167 (1) (a) and 122 of the Code of Criminal Procedure, which require officers who

perform an arrest to inform the suspect of the case against him.

19.

Furthermore, section 218 (2) requires the examining magistrate to specify the

charges before issuing a remand warrant. Moreover, the warrant is valid if the charges are

punishable by a custodial sentence. Section 218 (2) stipulates that such a warrant should be

issued only in cases of a serious offence. Given that the remand warrant was not issued on

the basis of specific charges, the source maintains that at that time such a warrant was not

justified.

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20.

The arrest was allegedly ordered by the judge of the High Court of Mfoundi, who

reportedly issued a remand warrant without specific charges, referring to a preliminary

investigation of Mr. Atangana Mebara, Mr. Otele-Essomba, Mr. Mendouga, Mr. Fotso, Mr.

Walls and others, all of whom had been accused of conspiracy and coercion in the

misappropriation of public funds. The source alleges that in the proceedings against Mr.

Yaya there were irregularities regarding the legal basis of the proceedings initiated against

him. Mr. Yaya was accused of being an accomplice in this case because of his alleged

mismanagement of public funds and the amount of $31 million, which had been reserved

for the purchase of a BBJ-2 Boeing aircraft. The charges are based on articles 74, 96 and

184 of the Penal Code.

21.

The source reports that, from 16 April to 25 May 2012, Mr. Yaya was detained at

the Kondengui maximum-security prison, in Yaoundé, by the National Gendarmerie,

pending trial.

22.

While serving his sentence, he wrote a series of open letters outlining his views on

the BBJ-2 case. These letters were made public by the media. The source reports that Mr.

Yaya was then transferred from the Kondengui maximum-security prison to a military

place of detention under the supervision of the Office of the Minister of Defence, in charge

of the Gendarmerie.

23.

Since 25 May 2012, Mr. Yaya has been detained at Secondary Prison in Yaoundé, a

military place of detention still under the authority of the Office of the Minister of Defence.

This is not an official detention facility.

24.

On 18 June 2012, Mr. Yaya’s lawyer sent a letter to the Minister of Justice, drawing

his attention to the poor detention conditions of Mr. Yaya. The cell in which he is being

held receives very little natural light and is extremely damp, which seriously affects Mr.

Yaya’s vision and respiratory tract, which is chronically infected. Mr. Yaya also suffers

from heart problems and has inadequate access to medical care. Furthermore, his right to

receive visits from his family and his lawyer has been restricted on several occasions, as

has his right to speak privately with his lawyer. His lawyer’s documents have been checked

by military guards working for the Officer of the Minister of Defence on several occasions.

The source asserts that the restriction of family visits violates section 238 of the Code of

Criminal Procedure and that Mr. Yaya’s lawyer should not be subjected to checks of his

person or his documents, in accordance with article 241 (1) of the Code of Criminal

Procedure.

25.

On 16 July 2012, Mr. Yaya was informed that his trial would begin on 24 July 2012.

It is only on 19 July 2012 that a case file — still incomplete — was submitted to his lawyer

in preparation for Mr. Yaya’s defence just five days later.

26.

In his memoirs, the examining magistrate confessed that the order against Mr. Yaya

had been prepared by the Minister of State, the Minister of Justice and the Garde des

Sceaux, with the assistance of the High Court examining magistrate and of a prosecutor

who allegedly was made a Supreme Court judge shortly thereafter; that same judge was

also the appeals judge for Mr. Yaya’s case. The source concludes that the judges in

question lacked independence and impartiality. In addition, the authorities disregarded

information that proved Mr. Yaya’s innocence, with the High Court of Mfoundi refusing to

admit a report of the criminal investigation police and a report of the Prosecutor of the

Republic, both of which concluded that there was no evidence that Mr. Yaya had

embezzled public funds in the BBJ-2 case. These reports were not included in the record of

proceedings.

27.

During Mr. Yaya’s trial, the defence requested that the out-of-court settlement from

the 2006 dispute should be accepted as evidence before the High Court of Mfoundi, so as to

demonstrate that at the time the settlement had been reached, all the parties had agreed not

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to prosecute the persons involved in the case following signature of the agreement. Thus,

the Government of Cameroon, by prosecuting Mr. Yaya, had breached that agreement. The

defence’s request was rejected and the document was declared inadmissible before the High

Court of Mfoundi. Even this request was rejected and the judge declared the agreement

inadmissible. According to the source, this constitutes a violation of the principle of equal

treatment of the prosecution and the defence.

28.

On 21 and 22 September 2012, the High Court of Mfoundi sentenced Mr. Yaya to

25 years’ imprisonment for conspiracy and coercion in the misappropriation of public

funds. The source reports that Mr. Yaya’s conviction was based on laws that are no longer

in force in the Cameroonian legal system or that have no relevance. The charges were based

on an alleged violation of articles 74, 96 and 184 of the Penal Code and of sections 391 (1),

393 (1) (b) and 426 (1) of the Code of Criminal Procedure, and on the Supreme Court

ruling of 1 December 1964. However, the Court’s reasoning was based on a law that had

been superseded, and was therefore no longer in force, and on a decision of the Criminal

Chamber of the French Court of Cassation on 4 January 1902, concerning article 227-22 of

the French Penal Code relating to incitement to corruption of minors.

29.

The source also submits that the High Court of Mfoundi ignored the request of Mr.

Yaya’s lawyer to exclude evidence considered tainted by the defence according to section 3

of the Code of Criminal Procedure. Nevertheless, such evidence was declared admissible.

30.

The source goes on to state that the selection of witnesses was unbalanced in such a

way as to secure the conviction of Mr. Yaya. In this connection, the refusal of the lawyer

who had represented the Government of Cameroon before the federal court in Oregon to

testify on the grounds of the lawyers’ code of conduct lacks credibility, given that, just one

year after Mr. Yaya’s conviction, the same lawyer made an official statement that the

Government of Cameroon had been fully compensated.

31.

During the 48-hour period prescribed by law, Mr. Yaya lodged an appeal with the

Supreme Court. According to article 13 (3) of Act No. 2012/011 of 16 July 2012, the Court

is obliged to rule on the appeal within six months. However, the source states that, 33

months later, the appeal remains pending. Moreover, article 11 (2) and (3) of Act No.

2012/011 of 16 July 2012 restricts the rights of the defence in providing that only the

prosecution has the right to submit new evidence in appeals proceedings. Accordingly, it is

impossible for Mr. Yaya to present recently discovered exculpatory evidence.

32.

The source also reports that, on 23 September 2013, Mr. Yaya submitted to the

Supreme Court a request for provisional release, pending the Court’s ruling on his appeal.

The request was rejected by the Court.

33.

On 2 August 2014, Mr. Yaya’s family sent a letter to the President of Cameroon,

requesting Mr. Yaya’s transfer, for medical reasons, to the American hospital in Paris,

where he had received treatment in the past, to have his vision problems, chronic

respiratory infections, and heart trouble examined and treated appropriately.

34.

The source claims that the proceedings against Mr. Yaya are marred by grave

irregularities that constitute violations of Cameroonian law and of international norms

relating to the rights to liberty and security of person, to a fair trial, and to freedom of

expression and association. When considered together, these irregularities suggest that Mr.

Yaya enjoys no protection under the law and render the violations so serious as to give the

detention an arbitrary character.

35.

The source states that Mr. Yaya’s arrest and detention are the result of his exercising

his right to freedom of expression, of association and of participation in government,

guaranteed under articles 19, 20 and 21 of the Universal Declaration of Human Rights,

articles 19, 22 and 25 of the International Covenant on Civil and Political Rights, ratified by

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Cameroon on 27 June 1984, and the Constitution of Cameroon. Furthermore, the source

states that Mr. Yaya’s arrest was also motivated by his support for the progressive

movement within the political party, Rassemblement démocratique du peuple camerounais,

and his presidential ambitions. Therefore, according to the source, Mr. Yaya is perceived as

a threat to the policies led by President Biya.

36.

In the light of the foregoing, the source contends that the detention of Mr. Yaya is

arbitrary and falls under categories II and III of the categories applicable to the cases

submitted to the Working Group, insofar as it violates articles 7, 9, 10, 19, 20 and 21 of the

Universal Declaration of Human Rights and articles 9, 10 (1), 14, 21, 22, 25 and 26 of the

International Covenant on Civil and Political Rights.

Response from the Government

37.

The Government of Cameroon requested a deadline extension of 60 days from 6

July 2015. On 15 July 2015, the Working Group informed the Government that it had been

granted an extension of 30 days, in line with paragraph 16 of its methods of work. On 30

September 2015, Cameroon duly submitted its reply with a considerable number of

supporting documents.

38.

In its detailed reply, the Government of Cameroon refutes the facts by presenting a

series of procedural documents relating to Mr. Yaya. The Government contends that Mr.

Yaya offers no proof that he has been detained for political reasons, much less for his

political opinion as he claims, and that the only charge against him is his involvement in the

corruption case on the acquisition of a presidential aircraft. The Government goes on to

state that his trial was held in the manner prescribed by law and his rights duly respected,

and that it is inconceivable to claim the right to a fair trial at an earlier stage than indictment

or arrest.

Further comments from the source

39.

The reply of the Government of Cameroon was transmitted to the source, who

submitted his comments on 13 November 2015.

40.

In his comments, the source refutes all the Government’s statements and submits

new evidence resulting from the domestic proceedings and arguments based on the practice

of international bodies for human rights protection.

Discussion

41.

In the present case, the Working Group welcomes the cooperation of the

Government of Cameroon, which responded to the allegations in a timely manner after the

extension was granted, in order to settle the case promptly. The Working Group also

welcomes the fact that the source and the Government provided evidence in support of their

respective statements. That said, in the present case, the Working Group’s in-depth analysis

of the 1,000 or so pages submitted in order to exclude irrelevant information led to delays.

42.

Of all the information received, it should be noted that there is agreement on a

number of facts. Mr. Yaya was apprehended, prosecuted and sentenced in the case relating

to the purchase of a presidential aircraft. During part of the acquisition process, Mr. Yaya

was the Secretary-General of the Office of the President of the Republic. The Government

did not respond to other aspects relating to the case, including the claim that it had been

fully compensated for the money it had invested in the failed acquisition of the aircraft,

notwithstanding the statement made by the Government’s counsel in the recovery of these

monies, as provided by the source.

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43.

Furthermore, the Government simply refutes the claim that Mr. Yaya was

prosecuted and convicted because he expressed his political opinion, without addressing the

substantive argument put forward by the source. In his submissions, the source first

attempts to demonstrate that there were no grounds for Mr. Yaya’s prosecution under the

Code of Criminal Procedure, since the Government had already recovered its investment,

before going on to reveal the real reasons behind the proceedings. It is the Working

Group’s view that the open letters written by Mr. Yaya after he was arrested cannot

logically be regarded as the reason for his arrest. However, there is no doubt that Mr.

Yaya’s removal from the Government in December 2011, and his arrest and the

proceedings initiated against him a few months later occurred shortly after WikiLeaks made

public, nationally and internationally, the United States Government’s confidential opinion

that Mr. Yaya would make a viable candidate to replace the President of Cameroon. The

Working Group wishes to stress that this case is not the first of its type to be considered and

that, in the past, it has expressed its concern about similar cases in which political

speculation resulted in persons’ being brought before Cameroonian courts.1 Lastly, it is

worth noting that the arrest, detention and prosecution of Mr. Yaya occurred after more

than seven years after the events in question and more than three years after the hearing

relating to the prosecution of other individuals, and that the Government does not offer any

explanation for such delay.

44.

Furthermore, the Government does not address the substance of the charges that Mr.

Yaya’s right to a fair trial was violated. The Government is correct in stating that an

individual cannot avail him- or herself of the right to a fair trial prior to indictment.

However, the Government does not offer convincing arguments to prove that this right was

observed throughout the proceedings. For example, a judge about whom Mr. Yaya had

already expressed reservations nevertheless presided over his trial, because the decision

rejecting Mr. Yaya’s request to have the judge replaced was handed down only after his

arrest. Moreover, the source contests the seriousness of the case, which would not seem to

warrant preventive detention — an assertion to which the Government also does not

respond. Worse still, Mr. Yaya’s ability to defend himself was undermined by the failure to

provide him and his lawyer with the case file, including potentially exculpatory evidence, in

a timely fashion before the trial. All of this constitutes a material breach of the fundamental

right to a fair trial, as covered by article 10 of the Universal Declaration of Human Rights

and article 14 of the International Covenant on Civil and Political Rights.

45.

As indicated above, the Government corroborated essential aspects of the events as

reported by the source. The robust evidence provided by the source both in his initial

complaint and in his additional comments strengthens his credibility as regards his account

of the events. In the light of the facts and evidence submitted, the Working Group is

convinced that the arrest, detention and conviction of Mr. Yaya were not justified and that

his right to a fair trial was seriously violated during the criminal proceedings to which he

was subjected. However, although the source’s arguments are persuasive, the tacit reasons

for the exploitation of the Cameroonian criminal justice system remain uncertain.

46.

As to the source’s claim that the arbitrary detention falls within category II as

defined in the Working Group’s methods of work, the Working Group is unable to

conclude that the prosecution of Mr. Yaya was motivated by his political ambitions, even if

it is obvious that the prosecution was unjustified. It is not for the Working Group to

speculate; therefore, in this case, it cannot consider the source’s arguments in that regard.

1 See opinion No. 38/2013, para. 27, and opinion No. 38 (2014), para. 31.

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47.

The source also claims that the detention is arbitrary under category III. In this

regard, the Working Group’s conclusion is clear: Mr. Yaya suffered an extremely serious

violation of his right to a fair trial rendering null and void the proceedings against him.

48.

The source did not put forward arguments in relation to the other categories and the

Working Group itself sees no reason to consider them, as they do not relate to the facts in

the matter at hand.

49.

In conclusion, the Group notes that Mr. Yaya’s state of health is of concern and that

the risks involved are very serious because of their potentially irreversible nature. This

situation requires the further and prompt attention of the Government of Cameroon.

Disposition

50.

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

The detention of Mr. Yaya is arbitrary under category III, as defined in paragraph 8

of the Working Group’s methods of work. The Government has the obligation to

terminate the detention and grant the victim an appropriate remedy. In these

circumstances, the Working Group calls for the immediate release of Mr. Yaya, with

the possibility of a retrial, provided that the public prosecutor has reasonable

grounds for prosecution, in which all his rights must be fully observed.

51.

In conformity with paragraph 33 (a) of its methods of work, the Working Group

refers the case to the Special Rapporteur on the independence of judges and lawyers for all

appropriate action.

[Adopted on 27 April 2016]