Opinion; Subjects: MAURITANIA, 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.18-10673 (E) 120718 260718
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-first session (17–26 April 2018)
Opinion No. 33/2018 concerning Mohamed Ould Ghadde (Mauritania)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 33/30 of 30 September 2016.
2.
In accordance with its methods of work (A/HRC/36/38), on 19 January 2018 the
Working Group transmitted to the Government of Mauritania a communication concerning
Mohamed Ould Ghadde. The Government replied to the communication on 13 March 2018.
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 or
her sentence or despite an amnesty law applicable to him or her) (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 Covenant (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);
(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 beings (category V).
United Nations
A/HRC/WGAD/2018/33
General Assembly
Distr.: General
28 June 2018
English
Original: French
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Submissions
Communication from the source
4.
Mohamed Ould Ghadde is a 44-year-old Mauritanian national residing in
Nouakchott. Mr. Ghadde is a senator.
Context
5.
According to the source, Mauritania has been in a serious political crisis, stemming
from the President’s wish to amend the Constitution, since October 2016. The source
explains that, in October 2016, the President initiated a political dialogue in the aim of
amending the Constitution to allow him to stand for a third term. On 30 October 2016,
thousands of Mauritanians demonstrated against the resulting bill. The source notes that
amending the Constitution would undermine the fragile institutional balance ushered in by
the political transition of 2005 that put an end to the dictatorship. The transition, which
ended in 2007, led to the drafting of a Constitution whose major contribution was to limit
the length and number of presidential terms. The President is elected for a five-year term,
renewable only once.
6.
The source explains that in 2017, the President tabled a bill on constitutional review
whose aim was to abolish the Senate and the High Court of Justice and modify the national
anthem and flag. The bill was approved by the National Assembly but was rejected by a
majority in the Senate on 17 March 2017.
7.
According to the source, Mr. Ghadde, who at the time was Chair of the
parliamentary inquiry commission on direct contracting procurement, was the main
objector to the bill. The source reports that the commission, which looked into the
equipment, energy, mining, industry and agricultural sectors, among others, had
purportedly uncovered a number of contracts that raised serious suspicions of deficient or
dishonest financial management or misappropriations that benefited the President’s inner
circle. The source asserts that the Commission’s determination to complete its inquiries,
despite the administration’s refusal to provide it with any information, was one of the
reasons behind the President’s decision to abolish the Senate, which he did not have the
power to dissolve.
8.
In order to circumvent the rejection of the bill on constitutional review, the President
chose to consult the population directly via a referendum on the same issues on 5 August
2017. According to the source, the referendum was organized in breach of the Constitution
given that the bill had already been rejected by the parliament and that a vote on
institutional change must be preapproved by both chambers in keeping with article 99 of
the Constitution. The source contends that, according to the detractors, the goal of this
strong-arm approach was to gain acceptance for the idea of amending the Constitution via
referendum in the aim of repeating the exercise later with regard to a third term of office.
9.
The source also contends that the referendum campaign was characterized by a
climate of terror. On 26 and 27 July 2017, the peaceful demonstrations led by the
opposition were harshly suppressed by government forces. Mr. Ghadde, who had led the
opposition in the Senate, was a central figure of the demonstrations. The source asserts that
Mr. Ghadde was injured several times during the demonstrations and required
hospitalization. In addition, the source recalls that, on 3 August 2017, the Office of the
United Nations High Commissioner for Human Rights (OHCHR) stated in a press release
that it was concerned about the climate of the campaign and the apparent suppression of
dissenting voices.
10.
The source goes on to explain that, on 5 August 2017, all eight opposition parties
boycotted the referendum. The “yes” camp won with 85.6 per cent of votes, and voter
turnout was 53 per cent.
11.
Furthermore, the source reports interference in the judicial sphere, which is
exploited by the current regime. For example, in 2011, judges were disbarred or demoted
by presidential decree after acquitting several people in an ordinary case. Four of the judges
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were reinstated following the intervention of the Special Rapporteur on the independence of
judges and lawyers of the Human Rights Council.
Arrest and detention
12.
The source reports that, on the evening of 10 August 2017, Mr. Ghadde was arrested
at his home in Nouakchott, in front of his wife and children, by eight individuals in plain
clothing claiming to be members of the police. The police officers did not have an arrest
warrant but said that they had orders to take Mr. Ghadde in and that he had to cooperate.
13.
The source notes that Mr. Ghadde was then detained for a week in a room at the
headquarters of the Directorate General of National Security in Nouakchott, which came
under the police. He was then handed over to the gendarmerie at the joint station in
Nouakchott for one day and later returned to the police. It was not until 18 August 2017
that the authorities formally remanded Mr. Ghadde into police custody.
14.
The source asserts that, during this period, Mr. Ghadde was not informed of the
reasons for his arrest. A week after his initial arrest, a police superintendent informed him
that he would be charged with offences against public safety and morality and that the
police would proceed with questioning.
15.
The source recounts that, on 18 August 2017, the public prosecutor’s office in
Nouakchott announced in a communiqué that investigations were being conducted into
allegations of large-scale cross-border crimes that went against the morals and values of
Mauritanian society. On 31 August 2017, an investigating judge charged Mr. Ghadde with
corruption under the Anti-Corruption Act No. 2016.014 of 15 April 2016. On 1 September
2017, Mr. Ghadde was placed in pretrial detention at the Nouakchott civilian prison.
16.
The source argues that the pretrial detention was not adequately reasoned by the
investigating judge, who simply based his order on article 138 of the Code of Criminal
Procedure and recalled that the request had come from the public prosecutor’s office.1
17.
The source states that, in the meantime, four journalists were detained or summoned
by the security forces on 25 August 2017 in connection with national security. They were
questioned on, inter alia, articles referring to Mr. Ghadde’s arrest. They were then placed
under court supervision. Two trade union leaders were also detained. On 31 August 2017,
the public prosecutor’s office initiated proceedings against the four journalists, the two
trade union leaders, two businessmen, a former non-commissioned officer and 13 senators.
18.
The source further contends that, on 11 October 2017, Mr. Ghadde was taken from
his cell to be brought before an investigating judge for the first time, though his treatment
on this occasion was neither decent nor human. The source claims that Mr. Ghadde was
handcuffed and prevented from eating or drinking water and therefore refused to meet with
the investigating judge under those conditions. It was not until 12 October 2017 that the
first interview with the investigating judge took place. According to the source, in early
November 2017, the investigating judges extended the court supervision for two months.
On 9 January 2018, the court supervision was extended again.
19.
In addition, the source asserts that Mr. Ghadde’s lawyers petitioned the indictments
chamber to dismiss the charges pursuant to article 50 of the Constitution, which guarantees
parliamentary immunity and strictly regulates the arrest and detention of parliamentarians.
The indictments chamber rejected the petition on the grounds that it was not competent to
rule on the matter; Mr. Ghadde’s lawyers appealed the decision.
20.
The source notes that Mr. Ghadde’s arrest was his fifth in 2017. Indeed, on 12 May
2017, Mr. Ghadde was arrested by the gendarmerie in Rosso following a traffic accident.
He was detained then arrested despite being covered by parliamentary immunity. The
1 Article 138 of the Code of Criminal Procedure stipulates that any witness who receives a summons as
part of a request for judicial assistance is required to appear before the court, take an oath and present
their testimony, subject to the provisions of article 350 of the Criminal Code.
Should the witness fail to discharge these obligations, the issuing judge shall be notified and may take
action in accordance with article 98 (2), (3) and (4).
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source claims that Mr. Ghadde was spied on around the time of that arrest, in violation of
his privacy and the confidentiality of his correspondence. After confiscating his personal
telephones, the gendarmerie combed through all the messages, including exchanges with
members of the Senate and personal messages. When he appeared before the public
prosecutor for the first time, Mr. Ghadde attempted to lodge a complaint against the chief of
the gendarmerie unit for probing his telephones and violating the confidentiality of his
correspondence; the public prosecutor refused to register the complaint. After the case was
transferred to the court, Mr. Ghadde requested that the confiscated items, including the
telephones, be returned to him. The court and the appeals court both ruled in his favour and
all the items were returned to him, except the telephones. The source claims that the public
prosecutor’s office refused to return them despite the court order. In addition, according to
the source, after the telephones were confiscated, some of Mr. Ghadde’s correspondence
began to be systematically made public. The leaks took place between 19 and 23 July 2017.
According to a news website, the national gendarmerie was the source of the leaks.
Deprivation of liberty under category I
21.
According to the source, when Mr. Ghadde was arrested on 10 August 2017, the
police officers who executed the arrest were unable to provide the reasons or legal basis for
his deprivation of liberty. Mr. Ghadde was then detained incommunicado for a week, until
17 August 2017, without being allowed to communicate with or see his family or lawyers.
During that week, Mr. Ghadde was not informed of the reasons for his arrest. His police
custody officially began on 18 August 2017. The public prosecutor’s office stated in a
communiqué that the police custody was necessary as part of an investigation into the
aiding, abetting and planning of large-scale cross-border crimes that went against the
morals and values of Mauritanian society and had been committed under the aegis of an
organized structure with the purpose of causing disruptions and undermining public
security. However, according to the source, there is no offence in the Criminal Code
corresponding to the charge of large-scale cross-border crimes. In the same communiqué,
the public prosecutor’s office asserted that the detainee had been arrested together with
another suspect on the basis of a complaint by an army officer regarding invented events
and the spreading of false statements.
22.
According to the source, the public prosecutor’s office itself admitted in the
communiqué dated 18 August 2017 that the proper procedure had not been followed during
Mr. Ghadde’s arrest on 10 August 2017, stating that the launch of in-depth investigations
into these serious offences had followed a non-traditional procedure being applied in the
country for the first time.
23.
The source also claims that, even if the police custody ordered on 18 August 2017
were considered legal, article 56 of the Code of Criminal Procedure requires any person
placed in police custody to be released within 48 hours. Mr. Ghadde should, therefore, have
been released on 20 August 2017. However, he was not brought before an investigating
judge until 1 September 2017, at which time he was indicted and placed in pretrial
detention. Thus, between 20 August and 1 September 2017, Mr. Ghadde was in any case
detained beyond the statutory limit on police custody without any legal basis.
24.
Furthermore, the source argues that Mr. Ghadde’s indictment should be considered
null and void. Mr. Ghadde’s first hearing before an investigating judge was held on Friday,
1 September 2017, in other words on Eid al-Adha, a holiday. For this reason, the
investigating judge antedated the indictment and the pretrial detention order to Thursday,
31 August 2017. Hence why the source contends that the incorrectly dated legal act should
be considered fake and without legal effect and that Mr. Ghadde’s pretrial detention since 1
September 2017 has no admissible legal basis and should be considered arbitrary.
25.
Moreover, the source notes that, as a senator, Mr. Ghadde enjoyed parliamentary
immunity as provided for in article 50 of the Constitution. According to the source, a
member of parliament cannot be arrested in a criminal matter without the authorization of
the Assembly of which he or she is a part, except in cases of flagrante delicto, authorized
proceedings or a definitive conviction. The source notes that none of these scenarios
applied to Mr. Ghadde when he was arrested on 10 August 2017.
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26.
For these reasons, the source believes that Mr. Ghadde’s detention should be
considered arbitrary under category I.
Deprivation of liberty under category II
27.
According to the source, the arrest and detention of Mr. Ghadde are the direct
consequence of the exercise of his right to freedom of expression and his right not to be
prosecuted for his opinions, as enshrined in article 19 of the Universal Declaration of
Human Rights and article 19 of the International Covenant on Civil and Political Rights. Mr.
Ghadde exercised those rights when he campaigned against the bill on constitutional review
and the holding of the referendum to amend the Constitution and in his work as an
opposition senator. His arrest took place a few days after the referendum he opposed was
held.
28.
The source recalls that in its communiqué of 18 August 2017, the public
prosecutor’s office accused Mr. Ghadde of inventing events and spreading false statements.
This demonstrates that it was for exercising his right to freedom of expression that Mr.
Ghadde was originally targeted.
29.
Furthermore, the source believes that the punishment and detention of Mr. Ghadde
resulted from the exercise of his right to peaceful assembly, as enshrined in article 20 of the
Universal Declaration of Human Rights and article 21 of the Covenant, when he took part
in demonstrations during the campaign against the referendum, specifically on 26 and 27
July 2017.
30.
For these reasons, the source concludes that Mr. Ghadde’s detention should be
considered arbitrary under category II.
Deprivation of liberty under category V
31.
The source notes that Mr. Ghadde is being detained for his political opinions. He has
long opposed the Mauritanian regime. He is considered to be one of the leaders of the
opposition and to have organized demonstrations against the President’s authoritarian
tendencies. He was a key player in the Senate movement against the bill on constitutional
review in March 2017 and against the constitutional referendum held on 5 August 2017. As
mentioned above, Mr. Ghadde also chaired the parliamentary inquiry commission that
looked into suspected misappropriation by the President’s inner circle, thereby solidifying
his position as a preferred target of the Government.
32.
According to the source, the official proceedings for corruption brought against Mr.
Ghadde, other senators, journalists, trade unionists and businessmen are nothing but a
pretext to silence dissident voices and intimidate anyone else who dares to oppose the
regime.
33.
For these reasons, the source believes that Mr. Ghadde’s detention should be
considered arbitrary under category V.
Response from the Government
34.
On 19 January 2018, the Working Group transmitted the source’s claims to the
Government of Mauritania under its regular communication procedure, requesting a reply
by 20 March 2018.
35.
The Government submitted its response on 12 March 2018. It contests the source’s
claims and asserts that Mr. Ghadde’s arrest and detention were carried out in compliance
with the laws and regulations in force. Consequently, the Government argues that the
complainant’s detention is not arbitrary under categories I, II or V.
36.
Regarding category I, the Government states that Mr. Ghadde was perfectly well
informed of the grounds for his arrest and that he has enjoyed all the rights to which
detainees are entitled from the start of his detention. The Government confirms that the
offence of large-scale cross-border crimes does not exist in the Criminal Code but that the
communiqué of the public prosecutor’s office in which the expression was used was
intended for public information purposes only; it was not an indictment. The Government
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specifies that the offence being prosecuted is corruption and that the term cross-border
describes the context in which the punishable acts were committed. The provisions that
apply to the acts are contained in the Anti-Corruption Act No. 2016.014, not the Criminal
Code.
37.
The Government contends that Mr. Ghadde was placed in police custody on 10
August 2017 for defamation. A new pretrial detention order was issued on 18 August 2017
for corruption. According to the Government, these two periods of police custody did not
exceed the statutory limit on detentions under Act No. 2016.014 as Mr. Ghadde was
brought before the judge on 31 August 2017. Article 27 of the Act provides for derogations
whereby police custody can last for 48 hours and be renewed three times on the
authorization of the public prosecutor, or eight clear days.
38.
The Government challenges the source’s claim regarding the modification of the
date of the indictment. The authorities maintain that all the procedural acts were drawn up
and signed on 31 August 2017 in the prescribed form and, therefore, are not null and void.
Moreover, had they been null and void, that would have been declared by the competent
bodies at the time the case was submitted to them. Lastly, the Government notes that at no
time did Mr. Ghadde’s lawyers raise any irregularities despite being entitled to do so.
39.
Concerning Mr. Ghadde’s parliamentary immunity, the Government affirms that he
lost his immunity when the Senate was abolished following the referendum of 5 August
2017. From that date onwards, he once again became an ordinary citizen without any legal
privileges. In any case, the acts of which he is accused fall outside the scope of his
parliamentary functions, depriving him of his immunity.
40.
With regard to category II, the Government deems the source’s claims to be
erroneous. Contrary to what the source reported, the Government asserts that Mr. Ghadde
was not arrested for opposing the constitutional amendments but, rather, for acts of
corruption. As evidence of this, the Government notes that many other politicians took part
in demonstrations and were not arrested. As for his immunity at the time of the events, the
Government argues that the acts of which Mr. Ghadde is accused were committed during
his term as a senator and can be separated from the exercise of his functions.
41.
In addition, the source’s claim that the public prosecutor’s office accused Mr.
Ghadde of inventing events and spreading false information, thereby proving that he was
targeted for exercising his right to freedom of expression, is inaccurate according to the
Government. It asserts that the public prosecutor is not accusing Mr. Ghadde of making
false statements and simply recalls that Mr. Ghadde is the object of other proceedings in
which he is accused of inventing events and spreading false information. According to the
Government, Mr. Ghadde himself has acknowledged these acts which cannot, then, be the
fruit of the exercise of his freedom of expression.
42.
The Government considers the source’s claims that the punishment of Mr. Ghadde
stems from the exercise of his right to peaceful assembly during the demonstrations of 26
and 27 July 2017 to be false given that the right of assembly, like all fundamental freedoms,
is guaranteed in law and in practice in Mauritania.
43.
Concerning category V, the Government maintains that Mr. Ghadde is not being
detained for his political opinions. Indeed, the authorities consider the complainant’s status
as a politician to be unrelated to the proceedings against him. The Government adds that Mr.
Ghadde is overplaying his political role and that anyone with the slightest knowledge of
Mauritania would be surprised to hear him described as the leader of the opposition. Lastly,
the Government wonders why the support Mr. Ghadde has received from his opposition
colleagues following his arrest would be so lukewarm if he was, as the source claims, one
of the leaders of the movement.
44.
In response to the source’s claim that the grounds for Mr. Ghadde’s arrest include
his role as a leader of the movement against the referendum and the President’s
authoritarian tendencies, the Government asserts that this argument is a pretext to avoid
discussing the acts of which Mr. Ghadde is accused. It is a well-worn trick to create a
diversion by claiming persecution for his opinions. Lastly, the Government maintains that
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there is not a single political prisoner in Mauritanian establishments and that the press
enjoys complete independence and freedom in the country.
Further information from the source
45.
The source notes that the Government did not supplement its account with
documents or evidence of any kind and makes little more than assertions. Moreover, the
Government did not provide any information regarding Mr. Ghadde’s incommunicado
detention from 10 to 16 August 2017.
46.
The source challenges the Government’s justifications according to which Mr.
Ghadde could not benefit from parliamentary immunity owing to the nature of the acts he is
charged with and the abolishment of the Senate. The source points out that Mr. Ghadde was
arrested on 10 August 2017 when the Senate was not officially abolished until 15 August
by a presidential decree that the source has submitted to the Working Group. The source
further points out that the Government did not provide any legal basis justifying the
revocation of immunity on the basis of the charges laid. The source recalls that article 50 of
the Constitution guarantees parliamentary immunity except in cases of flagrante delicto or
where the parliament authorizes proceedings to be brought against a person for acts
performed outside of his or her parliamentary functions. However, the parliament did not
issue an authorization to revoke Mr. Ghadde’s immunity.
47.
Regarding the conditions in which Mr. Ghadde was arrested and detained, the source
recalls that the Government merely stated that the police was entitled to arrest anyone at
any time, without substantiating the statement or justifying why the arrest took place in the
middle of the night and was followed by several days of detention for mere allegations of
defamation. The source also recalls that Mr. Ghadde’s first period in police custody
exceeded statutory limits and that no court order had been issued authorizing the extension
of the custody every 48 hours or the excessive number of extensions. In addition, the source
notes that the second period of detention also exceeded statutory limits. Accordingly, in the
source’s view, the following due process guarantees in the context of police custody were
violated: the drawing up of interview reports, the 48-hour renewal by the public
prosecutor’s office, notification of the family and communication with counsel when police
custody is extended. In support of these assertions, the source recalls that the Government
failed to produce documents proving the purported legality of the proceedings against Mr.
Ghadde.
48.
Concerning the threat to the independence of the judiciary, the source claims that the
Government is attempting to minimize Mr. Ghadde’s political role and annexes many
documents in support of these claims. By way of example, the source states that the so-
called “defamation” case against Mr. Ghadde, which justified his initial detention, is a
political case and that the proceedings for corruption are unfounded. The source refutes the
Government’s assertions that it refrains from interfering in or commenting on legal
proceedings and decisions, and appends various reports and documents indicating the
opposite.
49.
Lastly, the source illustrates, through several annexes, the human rights situation in
Mauritania, especially with regard to breaches of freedom of expression, barriers to the
exercise of the right to protest, arbitrary arrests, and violations against human rights
defenders.
Discussion
50.
Firstly, the Working Group wishes to express its gratitude to the parties for their
cooperation in the present procedure.
51.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a case for breach of international
requirements constituting arbitrary detention, the burden of proof should be understood to
rest upon the Government if it wishes to refute the allegations (see A/HRC/19/57, para. 68).
In the present case, the Government has challenged the allegations made by the source.
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52.
Concerning the general context, it should be recalled that public information
abounds, particularly with regard to the climate during the referendum campaign and to Mr.
Ghadde’s extended detention. 2 It should also be noted that the source has provided
considerable evidence in support of its complaint and response, whereas the Government,
although it did in fact respond to the claims regarding the arbitrary nature of Mr. Ghadde’s
detention, did not submit any documents to support its assertions.
53.
In a press release of 3 August 2017, the spokesperson for the United Nations Office
of the High Commissioner for Human Rights (OHCHR) expressed concern at the unrest
ahead of the referendum, particularly the apparent suppression of dissenting voices and the
excessive use of force by the authorities against protest leaders. The release also referred to
the arrest and brutal treatment of several members of the opposition. Lastly, the
spokesperson urged the Government to ensure that its response to the protests was in line
with its obligations under international human rights law and to ensure that the rights to
peaceful assembly and to freedom of opinion and expression were fully respected.3
54.
Mr. Ghadde was arrested at his home five days after the referendum and claims that
he was initially held incommunicado from 10 to 16 August 2017. The Government does not
dispute the arrest but maintains that it was carried out in accordance with the rules. The
Government did not, however, submit any corroborating evidence, such as an arrest warrant,
an arrest report or a copy of the detention register. According to the Government, Mr.
Ghadde was informed that proceedings were being brought against him initially for
defamation and, later, for corruption. The Government specified that the 48-hour period of
police custody could be extended three times for 48 hours each time. Therefore, assuming
that the Government is correct, the police custody in relation to the corruption charge
should have ended on 26 August 2017. However, the Government acknowledged that it was
not until 31 August 2017 that Mr. Ghadde was brought before a judge. Moreover, the
successive periods of police custody appear to have been a strategy to bypass the limit on
police custody, such that three weeks elapsed before Mr. Ghadde was brought before a
judge. Objectively, this undermines the imperative to promptly give a detainee the
opportunity to challenge his or her detention and to know in detail the reasons for the
detention. Under these circumstances, without it being necessary to choose between the two
versions, the Working Group finds that Mr. Ghadde was held in incommunicado detention
and for longer than prescribed by law before being brought before a judge, in violation of
article 9 (3) of the Covenant.
55.
Regarding the parliamentary immunity claimed by Mr. Ghadde, the Government
stated that Mr. Ghadde ceased being a senator from the moment the results of the
referendum were known. Yet, the Government did not issue a decree on the consequences
of the referendum, in other words the dissolution of the Senate, until 15 August 2017. It
would follow that it was not until the Senate had been dissolved that the senators became
ordinary citizens, meaning that, on 10 August 2017, Mr. Ghadde still enjoyed immunity.
Furthermore, the Government does not claim that the Senator was arrested in flagrante
delicto or that immunity had been revoked; therefore, his arrest under these circumstances
was in breach of his parliamentary immunity.
56.
These elements combined, namely the incommunicado detention from 10 to 16
August 2017, the excessive length of police custody and parliamentary immunity, render
Mr. Ghadde’s arrest and detention legally baseless and, therefore, arbitrary under category I.
57.
The source also claimed that Senator Ghadde’s views were what prompted his arrest
and subsequent detention. The Working Group has received sufficient information
2 See for example: Agence mauritanienne d’information, Le parquet général annonce l’ouverture des
enquêtes préliminaires sur des crimes transfrontaliers (The public prosecution service announces
preliminary investigations into cross-border crimes), 18 August 2017; Human Rights Watch,
Mauritania: Prolonged Detention of Opposition Leader, 5 October 2017; Radio France Internationale,
Sénateurs poursuivis en Mauritanie : le contrôle judiciaire est maintenu (Senators on trial in
Mauritania: court supervision is upheld), 9 January 2018.
3 OHCHR, Comment by OHCHR Spokesperson Ravina Shamdasani on Mauritania, Geneva, 3 August
2017.
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concerning the activities of the parliamentary inquiry commission on direct contracting
procurement and the circumstances surrounding the referendum campaign, including the
Senate’s opposition to the constitutional reform. The timing of the arrest and detention, as
well as their circumstances in the light of all the evidence submitted by the source, would
lead the Working Group to find in favour of the source. The Working Group is convinced
that the Mr. Ghadde’s advocacy in the Senate and on the political scene in Mauritania is the
cause of his deprivation of liberty despite being protected under articles 19, 21, 22 and 25
of the Covenant.
58.
Consequently, the Working Group finds that the arrest and detention of Mr. Ghadde
are arbitrary under category II. Under these circumstances, he should not be tried. The
foregoing not withstanding, criminal proceedings are under way against Mr. Ghadde and
the source claims that his right to a fair trial has been violated. The Working Group is of the
view that, in the present case, its finding in favour of the source in relation to category II is
sufficient and, accordingly, will not consider the points relating to a fair trial.
59.
Lastly, the source claims that Mr. Ghadde is being discriminated against, thereby
rendering his detention arbitrary under category V. However, the alleged discrimination is
based on the exercise of protected rights that are already covered in the Working Group’s
finding in favour of the source in relation to category II. The Working Group is of the view
that this finding suffices in the present case.
60.
Given that the Working Group has been accustomed to good cooperation with the
Government of Mauritania, it is concerned at the cases it has considered in recent years
(Opinions No. 36/2016, No. 35/2017 and No. 90/2017). In the aim of preventing the
situation from deteriorating, the Working Group is of the view that a visit would be
appropriate in order to assist the Government in adhering to international law. Thus, the
Working Group reiterates its interest in such a visit, whose purpose would be to pursue its
constructive dialogue with the Government and help Mauritania improve its legislation and
practice in order to prevent arbitrary deprivation of liberty, which is vital for the
consolidation of democracy and the protection of human rights.
Disposition
61.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mohamed Ould Ghadde, being in contravention of
articles 19 and 20 of the Universal Declaration of Human Rights and of articles 9, 19,
21, 22 and 25 of the International Covenant on Civil and Political Rights, is arbitrary
and falls within categories I and II.
62.
The Working Group requests the Government of Mauritania to take the necessary
steps to remedy the situation of Mr. Ghadde without delay and bring it into conformity with
the relevant international norms, including those set out in the Universal Declaration of
Human Rights and the International Covenant on Civil and Political Rights.
63.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Ghadde immediately and accord him
an enforceable right to reparation, including compensation and a guarantee of non-
repetition, in accordance with international law, and to provide him with medical care as
needed and appropriate for his condition.
64.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Ghadde and to take appropriate measures against those responsible for the violation of his
rights.
Follow-up procedure
65.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Ghadde has been released and, if so, on what date;
A/HRC/WGAD/2018/33
10
GE.18-10673
(b)
Whether Mr. Ghadde has received reparation, including compensation and a
guarantee of non-repetition;
(c)
Whether an investigation has been conducted into the violation of Mr.
Ghadde’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of Mauritania with its international obligations in line
with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
66.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example, through a visit by the
Working Group.
67.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
68.
In addition, the Government should disseminate through all available means the
present opinion among all stakeholders.
69.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and requested them to take account of its views,
to take appropriate steps to remedy the situation of persons arbitrarily deprived of their
liberty and to inform the Working Group of the steps they have taken.4
[Adopted on 25 April 2018]
4 See Human Rights Council resolution 33/30, paras. 3 and 7.