A/HRC/WGAD/2020/46

GE.20-13061 (E) 301120 011220

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-eighth session, 24–28 August 2020

Opinion No. 46/2020 concerning Ignace Sossou (Benin)*, **

1.

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

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. 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 42/22.

2.

In accordance with its methods of work (A/HRC/36/38), on 23 March 2020 the

Working Group transmitted to the Government of Benin a communication concerning Ignace

Sossou. The Government has not replied to the communication. 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).

* In accordance with paragraph 5 of the Working Group’s methods of work, Sètondji Roland Adjovi

did not participate in the discussion of the present case.

** Seong-Phil Hong did not participate in the discussion of the present case.

United Nations

A/HRC/WGAD/2020/46

General Assembly

Distr.: General

6 October 2020

English

Original: French

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Submissions

Communication from the source

4.

Ignace Sossou is a national of Benin born on 22 February 1989. Mr. Sossou is an

investigative journalist affiliated with the Norbert Zongo Unit for Investigative Journalism

in West Africa. He is also an editor at L’Événement, a Nigerian publication appearing twice

weekly.

5.

According to the source, the Norbert Zongo Unit for Investigative Journalism in West

Africa aims to build the capacities of investigative journalists in the region through training,

mentoring, grants, networking, legal advice, technical support for investigations and the

provision of a publishing platform.

(a)

Arrest and detention

6.

The source explains that Mr. Sossou had already received a suspended sentence of 1

month’s imprisonment in August 2019 for “publication of false information”, after he

published two articles exposing a case of tax evasion involving Beninese and French

businessmen who had used offshore accounts and shell companies.

7.

According to the source, on 18 December 2019, Mr. Sossou participated in a training

workshop for journalists on the dissemination of false information, which had been organized

by Canal France International (CFI), the French media development agency. The workshop

was held in Cotonou as part of the CFI project “Vérifox Africa”.

8.

The source reports that the public prosecutor at the Cotonou court of first instance was

one of the panellists at the workshop. Mr. Sossou used his social media accounts to report

some of the remarks made by the prosecutor, in particular the following: “Beninese

legislation as it stands does not provide the public with legal certainty”; “the Internet

shutdown on election day on 28 April was an admission of weakness by those in power”; and

“the Digital Code is like a gun to the head of journalists”.

9.

The source explains that, on 19 December 2019, CFI sent a letter to the Minister of

Justice in which the CFI Director for Africa distanced himself from Mr. Sossou’s posts and

offered the following apology on behalf of the agency: “We are sorry that an unscrupulous

journalist took advantage of this important occasion to try to create a buzz at the prosecutor’s

expense.” The letter reportedly continued: “These phrases, truncated and taken out of context,

in no way reflect the content of the discussions that took place at the workshop.” According

to the source, the agency’s letter of apology was later used as evidence against Mr. Sossou at

his trial.

10.

On 20 December 2019, at approximately 6.30 a.m., Mr. Sossou was forcibly arrested

at his home, in front of his wife, by men in uniform. At the time of his arrest, he was neither

shown a warrant nor informed of the reasons for the arrest. Mr. Sossou was reportedly not

informed of the charges against him until approximately two hours after the arrest.

11.

The source further explains that Mr. Sossou’s relatives did not find out that he had

been taken to the facilities of the Central Office for the Suppression of Cybercrime, a unit of

the Beninese police, until later that day.

12.

In addition, the source notes that the arrest was triggered by a complaint filed by the

public prosecutor. In this complaint, Mr. Sossou was accused of using his social media

accounts to post remarks attributed to the prosecutor that were inaccurate and had been taken

out of context.

13.

According to the source, Mr. Sossou was held in police custody for 96 hours, from 20

December 2019 until his trial on 24 December 2019. While in custody, he was not allowed

to meet with a lawyer and was questioned by the police without a lawyer present. Moreover,

he was not brought before a judge until three days after his arrest, when his detention in

custody was extended without his lawyer present.

14.

The source explains that Mr. Sossou was not able to meet with his lawyer for the first

time until four days after his arrest, a matter of minutes before his trial appearance.

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15.

According to the source, at a summary trial on 24 December 2019, Mr. Sossou was

convicted of “harassment through electronic communications”, an offence under article 550

of the Digital Code, and given a non-suspended sentence of 18 months’ imprisonment and a

fine of 200,000 CFA francs. The source notes that the public prosecutor’s office had sought

a prison sentence of 12 months. The source points out that, as a copy of the decision was not

made available to the defence, it is impossible to know under which paragraph of article 550

Mr. Sossou’s sentence was imposed.

16.

In addition, according to the source, Mr. Sossou’s lawyer asserts that there was not

enough time to prepare the defence and the sentence was appealed.

17.

Moreover, the source notes that the Norbert Zongo Unit for Investigative Journalism

in West Africa approached CFI to obtain the recordings of the workshop so that they could

be compared with Mr. Sossou’s posts. On 2 January 2020, the agency published a press

release containing a transcript of the remarks made by the public prosecutor at the workshop

on 18 December 2019, while maintaining that Mr. Sossou had provided “incomplete”

quotations. This press release has since been removed from the CFI website. Yet, according

to the source, the press release showed clearly that Mr. Sossou had quoted the prosecutor’s

remarks at the workshop almost word for word, without distorting their overall meaning.

18.

The source explains that, on 8 January 2020, following a backlash from the

journalistic community, CFI apologized to Mr. Sossou and explained that it had been

exploited in the case. The agency is also said to have acknowledged that Mr. Sossou’s posts

were in no way defamatory but in fact reproduced the remarks made by the public prosecutor.

Another article containing evidence of Mr. Sossou’s good faith and the veracity of the

remarks reported, including audio recordings of the exact statements made by the public

prosecutor, was also published.

19.

According to the source, Mr. Sossou was initially detained at the police station of the

fifth arrondissement of Cotonou, while in custody between 20 and 24 December 2019.

Following his conviction on 24 December 2019, he was held at the civil prison in Cotonou.

The source reports that Mr. Sossou spent the first 13 days of his detention (first in police

custody and then in prison) in dire conditions, including an appalling level of hygiene and an

unhealthy regimen that reportedly caused him to develop skin irritations and a chronic

respiratory infection. Beginning on 2 January 2020, these conditions of detention improved

markedly.

20.

The source also reports that, following his arrest, Mr. Sossou was allowed to receive

visits from his family and colleagues.

(b)

Legal analysis

(i)

Category I

21.

The source notes that Mr. Sossou was sentenced to 18 months’ imprisonment for

“harassment through electronic communications”, an offence under article 550 of the Digital

Code. The source argues that there are two problems with the imposition of a sentence on

this basis.

22.

Firstly, since a copy of the court’s decision was not made available to the defence, it

is not known under which paragraph of article 550 Mr. Sossou’s sentence was imposed.

According to the source, while the first two paragraphs of the article provide for a prison

sentence of between 1 month and 2 years, the third paragraph provides for a prison sentence

of between 1 and 6 months only. The source argues that, if Mr. Sossou was convicted on the

sole basis of the third paragraph of the article, which covers the publication of false

information, his sentence of 18 months’ imprisonment would exceed the maximum legal

penalty. His detention would therefore be arbitrary.

23.

Secondly, the source reports that the Digital Code has been widely criticized by

journalists and human rights organizations because it criminalizes the online publication of

false information and online offences against the legislation on the press. The provisions in

question are said to contribute to a climate of censorship.

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24.

The source concludes that, although Mr. Sossou was convicted under the Digital Code,

a law adopted in accordance with the Constitution of Benin, this law is being applied for a

purpose contrary to freedom of expression, since it circumvents the legislation on the press,

imposes some degree of censorship and makes it possible to prosecute journalists who should

be protected under the legislation on the press.

(ii)

Category II

25.

The source recalls that Mr. Sossou had already been given a suspended sentence of 1

month’s imprisonment for “publication of false information” in August 2019, after he

published two articles exposing a case of tax evasion involving Beninese and French

businessmen who had used offshore accounts and shell companies.

26.

In the present case, the source argues that Mr. Sossou’s detention resulted from the

exercise of his right to freedom of expression and his right to impart information through any

media. Mr. Sossou reported remarks made by the public prosecutor on 18 December 2019.

These remarks have been confirmed as accurate. The source concludes that Mr. Sossou’s

conviction and arbitrary detention should in fact be seen in the context of the Government’s

censorship and suppression of freedom of expression.

27.

Moreover, the source notes that, at the workshop of 18 December 2019, the public

prosecutor whose complaint triggered the proceedings against Mr. Sossou had publicly

acknowledged the climate of censorship and fear created by the Government. Indeed, Mr.

Sossou posted the following statement by the prosecutor: “The Digital Code is like a gun to

the head of … journalists.” The source asserts that the veracity of this remark is confirmed

by the audio recording of the workshop published online, in which the prosecutor says:

“Fortunately … or maybe unfortunately, I do not know, this Digital Code is like a gun to the

head of every journalist.”

(iii)

Category III

28.

The source argues that, at the time of his arrest, Mr. Sossou was not informed of the

reasons for the arrest, in contravention of article 9 (2) of the Covenant. In fact, Mr. Sossou

was not informed of the reasons for his arrest until two hours afterwards. He was not shown

a warrant at the time of his arrest.

29.

Moreover, the source asserts that Mr. Sossou was held in police custody arbitrarily, in

contravention of article 9 (3) of the Covenant. The source argues that, as Mr. Sossou was

given a summary trial after his arrest, he did not have time to prepare his defence. The source

further argues that the placement of Mr. Sossou in custody was automatic and abusive, which

contravenes articles 58 and 59 (2) of the Code of Criminal Procedure. According to the latter

provision, “police custody is prohibited in respect of offences that are committed via the press

or through audiovisual media”.

30.

In the present case, the source claims that the authorities knowingly violated this

provision, since Mr. Sossou was prosecuted for posts on social media. Mr. Sossou should

never have been held in custody for exercising his freedom of expression. Moreover, as a

journalist, he should have been afforded the protection provided for in the legislation on the

press.

31.

The source therefore alleges that, by basing their prosecution on the provisions of the

Digital Code that relate to harassment through electronic communications, the authorities

deliberately sought to circumvent article 59 (2) of the Code of Criminal Procedure so that

they could punish a journalist by holding him in custody. The fact nevertheless remains that

the alleged offence was committed through audiovisual media and that Mr. Sossou should

never have been taken into custody.

32.

In addition, the source argues that Mr. Sossou did not have time to prepare his defence.

In the present case, he appeared in court for an immediate summary trial four days after his

arrest. While in custody, he did not meet with a lawyer and was questioned by the police and

later by the public prosecutor without a lawyer present. He was not able to speak with his

lawyer until a matter of minutes before the trial hearing began. Consequently, his lawyer did

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not have time to prepare his defence. According to the source, Mr. Sossou was not afforded

the safeguards provided for in article 14 (3) of the Covenant.

Response from the Government

33.

On 23 March 2020, the Working Group transmitted to the Government a

communication concerning Mr. Sossou. The Working Group requested it to provide detailed

information about Mr. Sossou by 22 May 2020 at the latest. Specifically, the Working Group

requested the Government to clarify the legal provisions justifying his continued detention

and their compatibility with the obligations of Benin under international human rights law,

in particular with the treaties that the State has ratified. Moreover, the Working Group called

upon the Government to safeguard the physical and mental integrity of Mr. Sossou.

34.

The Working Group regrets that it did not receive a response from the Government,

nor did the Government request an extension of the time limit for its reply, as provided for

in the Working Group’s methods of work.

Further information from the source

35.

The source notes that Mr. Sossou was released on 24 June 2020, having reached the

end of his sentence as determined by the court of appeal. His lawyer has filed an appeal on

points of law in order to clear his name. According to the source, Mr. Sossou’s detention was

nevertheless abusive and unlawful, not only because criminal procedure was not respected,

but also because he was detained for exercising his freedom of expression as a journalist.

Discussion

36.

In the absence of a response from the Government, the Working Group has decided

to render the present opinion, in conformity with paragraph 15 of its methods of work.

37.

At the outset, the Working Group notes that Mr. Sossou was released on 24 June 2020,

at the end of his sentence, which had been reduced on appeal. In accordance with paragraph

17 (a) of its methods of work, the Working Group reserves the right to render an opinion on

whether or not a deprivation of liberty was arbitrary, notwithstanding the release of the person

concerned. In the present case, Mr. Sossou was reportedly the victim of serious human rights

violations, particularly as he is said to have been detained for exercising his right to freedom

of expression and not to have had adequate time in which to prepare his defence. In these

circumstances, the Working Group considers it important to render an opinion on his case.

38.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie 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 chosen not to challenge the

prima facie credible allegations made by the source.

(i)

Category I

39.

The source asserts that, at the time of his arrest on 20 December 2019, Mr. Sossou

was neither shown a warrant nor informed of the reasons for the arrest. According to the

source, Mr. Sossou was also not informed of the alleged offences until approximately two

hours after his arrest. The Government has not responded to these allegations.

40.

According to article 9 (1) of the Covenant, no one may be deprived of his or her liberty

except on such grounds and in accordance with such procedure as are established by law.

Article 9 (2) of the Covenant provides that anyone who is arrested must be informed, at the

time of the arrest, of the reasons for his or her arrest. In the present case, the Working Group

considers that the source has put forward credible allegations, which have not been rebutted

by the Government, that Mr. Sossou was arrested without being shown a warrant, in violation

of article 9 of the Universal Declaration of Human Rights and article 9 (1) of the Covenant.

The Working Group recalls that it is not sufficient for there to be a law authorizing the arrest.

The authorities must invoke this legal basis and apply it to the circumstances of the case

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through an arrest warrant.1 Moreover, Mr. Sossou was not informed of the reasons for his

arrest at the time of arrest, in violation of article 9 (2) of the Covenant. As the Working Group

has previously stated, an arrest is arbitrary when it is made without the arrested person being

informed of the reasons for the arrest.2

41.

In addition, the source alleges that Mr. Sossou was held in police custody for 96 hours,

from 20 December 2019 until his trial on 24 December 2019. According to the source, he

was not brought before a judge until three days after his arrest, when his detention in custody

was extended.

42.

Under article 9 (3) of the Covenant, anyone arrested or detained on a criminal charge

must be brought promptly before a judge. As the Human Rights Committee has noted, a

period of 48 hours is ordinarily sufficient to satisfy the requirement to bring a detainee

“promptly” before a judge following his or her arrest; any longer delay must remain

absolutely exceptional and be justified under the circumstances.3 In the present case, no such

justification has been put forward by the Government. The Working Group considers that

Mr. Sossou was not brought promptly before a judicial authority, in violation of article 9 (3)

of the Covenant. Consequently, the authorities did not establish the legal basis for his

detention in accordance with the Covenant.

43.

Lastly, the Working Group notes that Mr. Sossou was deprived of his liberty before

his trial on charges of defamation on 24 December 2019. For the Working Group, it seems

difficult to justify this detention as proportionate and necessary, particularly since Mr. Sossou

was simply doing his job as a journalist by reporting on the statements made during a

workshop, as explained in greater detail in the paragraphs relating to category II below.4

44.

The Working Group finds that Mr. Sossou’s detention was arbitrary under category I.

(ii)

Category II

45.

The source alleges that Mr. Sossou was deprived of his liberty for peacefully

exercising his right to freedom of expression under article 19 of the Universal Declaration of

Human Rights and article 19 of the Covenant.

46.

According to the source, Mr. Sossou was found guilty on 24 December 2019 and

sentenced to 18 months’ imprisonment and a fine of 200,000 CFA francs for “harassment

through electronic communications”, an offence under article 550 of the Digital Code.

47.

The source asserts that Mr. Sossou is an investigative journalist. On 18 December

2019, two days before his arrest, he participated in a training workshop for journalists on the

dissemination of false information, organized by CFI, the French media development agency,

and held in Cotonou. According to the source, the public prosecutor at the Cotonou court of

first instance was one of the speakers at the workshop. Mr. Sossou used social media to quote

some of the remarks made by the prosecutor during the workshop, including the following:

“Beninese legislation as it stands does not provide the public with legal certainty”; “the

Internet shutdown on election day on 28 April was an admission of weakness by those in

power”; and “the Digital Code is like a gun to the head of … journalists”.

48.

The criminal proceedings against Mr. Sossou were initiated by the public prosecutor,

who asserted that his remarks had been quoted inaccurately and out of context. According to

the source, the case against Mr. Sossou was bolstered by a letter from CFI dated 19 December

2019, in which the agency apologized for Mr. Sossou’s actions and noted that the prosecutor

had been quoted out of context and that the quotations did not reflect the remarks made during

the discussion. This letter was later used against Mr. Sossou at his trial.

1 Opinions No. 45/2019, para. 51; No. 44/2019, para. 52; No. 46/2018, para. 48; and No. 36/2018, para.

40.

2 See, for example, opinions No. 16/2020, para. 60; No. 46/2019, para. 51; and No. 10/2015, para. 34.

3 Human Rights Committee, general comment No. 35 (2014) on liberty and security of person, para.

33.

4 See also CCPR/C/BEN/CO/2, para. 24 (in which the Human Rights Committee expressed concern

about the abuse of pretrial detention).

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49.

Citing a CFI press release of 2 January 2020, which contained a transcript of the

remarks made during the workshop, the source submits that Mr. Sossou accurately

reproduced the wording used by the public prosecutor during the workshop. In addition, on

8 January 2020, the agency apologized to Mr. Sossou, acknowledging that his posts were not

defamatory but reflected the statements made by the prosecutor. The source further alleges

that Mr. Sossou was convicted under the Digital Code, which makes it possible to prosecute

journalists and contributes to a climate of censorship in which freedom of expression is

suppressed. The source stresses the irony that the prosecutor’s remarks, as reported by Mr.

Sossou, amounted to similar criticisms of the Digital Code, which he described at the

workshop as a “gun to the head of journalists”.

50.

The Working Group recalls that article 19 (2) of the Covenant provides that everyone

has the right to freedom of expression; this right includes the freedom to seek, receive and

impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or

in print, in the form of art or through any other media of his or her choice. This right includes

political discourse, commentary on public affairs, discussion of human rights, and

journalism.5

51.

The Working Group considers that Mr. Sossou was doing his job as a journalist by

accurately reporting on the statements made by the public prosecutor at a workshop. His

conduct therefore fell within the scope of the right to freedom of expression, including the

right to impart information of all kinds, which is protected under article 19 of the Universal

Declaration of Human Rights and article 19 of the Covenant.6 Mr. Sossou was detained for

exercising this right in a context in which journalists are punished for simply doing their job.7

This is not in fact the first time that Mr. Sossou has been prosecuted for his journalism.

According to the source, he had already been convicted and received a one-month suspended

sentence in August 2019, four months before the most recent prosecution, for publishing false

information about a case of tax fraud. The Government has not provided any information or

explanation in response to the source’s allegations.

52.

There is nothing to suggest – and the Government has not argued – that the restrictions

to which the right to freedom of expression may be subject under article 19 (3) of the

Covenant apply in the present case. The Working Group is satisfied neither that the

prosecution of Mr. Sossou was necessary to protect a legitimate interest under these

provisions nor that his conviction and sentence were a proportionate response to his peaceful

activities. While the prosecution had sought only a 12-month prison sentence for Mr. Sossou,

he was sentenced at first instance to 18 months, which suggests that the sentence imposed

was more stringent than was deemed appropriate by the prosecuting authorities. It is

important to note that there is no evidence to suggest that Mr. Sossou’s accurate reporting on

the statements made at a workshop could reasonably be considered to pose a threat to national

security, public order, public health or morals, or the rights or reputations of others. In its

resolution 12/16, the Human Rights Council called upon States to refrain from imposing

restrictions under article 19 (3) that are not consistent with international human rights law

(para. 5 (p)). The Working Group refers the present case to the Special Rapporteur on the

promotion and protection of the right to freedom of opinion and expression.

53.

The Working Group finds that Mr. Sossou was detained as a result of the peaceful

exercise of his right to freedom of expression, in violation of article 19 of the Universal

Declaration of Human Rights and article 19 of the Covenant. His detention was arbitrary

under category II.

54.

The Working Group considers that article 550 of the Digital Code is vague and overly

broad in its wording. For example, the article establishes criminal penalties for any electronic

5 Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and

expression, para. 11. See also opinions No. 45/2019, No. 44/2019, No. 3/2019, No. 7/2016, No.

44/2015, No. 40/2015, No. 52/2013 and No. 31/1998 (where it is noted that journalism is protected

under article 19 of the Covenant on freedom of expression).

6 CCPR/C/BEN/CO/2, para. 33 (where the Human Rights Committee pointed out that it was legitimate

for all public figures to be exposed to criticism).

7 Ibid, para. 32 (where the Human Rights Committee noted that restrictions are placed on the right to

freedom of expression in Benin).

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communication that “coerces, intimidates, harasses or causes emotional distress to a

person … for the purpose of encouraging serious, repeated and hostile behaviour” (first para.).

It also criminalizes harassment where the author knew or should have known that the

communication “would seriously disturb … the peace of mind of the person concerned”

(second para.) and provides for punishment for the publication of any “false information

about a person on social networks or through any other electronic medium” (third para.).8

The Working Group is concerned that these provisions seem to lack clarity and may, as in

the present case, be used to punish the peaceful exercise of human rights.

55.

The principle of legality requires that laws be formulated with sufficient precision that

individuals can gain access to and understand the law and regulate their conduct accordingly.9

The application of vague and overly broad provisions in the present case adds weight to the

finding that the detention of Mr. Sossou was arbitrary under category II. In some

circumstances, laws may be so vague and broad that it is impossible to invoke a legal basis

justifying the deprivation of liberty.

(iii)

Category III

56.

In view of its finding that the detention of Mr. Sossou was arbitrary under category II,

the Working Group stresses that no trial should have taken place. However, on 24 December

2019, Mr. Sossou was tried and convicted. Although Mr. Sossou’s sentence was later reduced

on appeal, the Working Group considers that the information submitted by the source

discloses violations of his right to a fair trial. The Government has not provided any

information or explanation in response to the source’s allegations.

57.

The source alleges that, following his arrest on 20 December 2019, Mr. Sossou was

held in police custody until his trial on 24 December 2019. During this period, he was not

able to meet with a lawyer and was questioned by the police and the public prosecutor without

a lawyer present. Mr. Sossou was also brought before a judge, three days after his arrest,

without his lawyer present. In addition, the source notes that Mr. Sossou was not able to

consult his lawyer for the first time until four days after his arrest, a matter of minutes before

his trial began.

58.

The Working Group recalls that all persons deprived of their liberty have the right to

legal assistance by counsel of their choice at any time during their detention, including

immediately after their arrest, and that such assistance must be provided without delay.10 The

fact that Mr. Sossou did not have access to a lawyer immediately after his arrest and that he

did not have sufficient time in which to meet with his lawyer before the trial constitutes a

violation of his right to have adequate time and facilities for the preparation of his defence

and to communicate with his lawyer, in accordance with article 14 (3) (b) of the Covenant.

59.

Moreover, the criminal proceedings in the present case appear to have been conducted

with undue haste. Mr. Sossou’s trial ended on 24 December 2019, a mere six days after the

workshop and four days after his arrest. As noted above, this did not give Mr. Sossou

sufficient time in which to meet with his lawyer. In addition, this is a very short time frame

for the completion of an investigation and trial, given the likely need to look into the nature

of the statements made at the workshop, interview the witnesses present at the event, review

any audio recordings and give the defence time in which to develop its arguments.

Furthermore, as noted above, the court of first instance sentenced Mr. Sossou to a heavier

penalty than that sought by the prosecution. Taken together, these factors suggest that Mr.

8 In Vienna, on 3 March 2017, several experts (including the Special Rapporteur on the promotion and

protection of the right to freedom of opinion and expression) stated that: “General prohibitions on the

dissemination of information based on vague and ambiguous ideas, including ‘false news’ or ‘non-

objective information’, are incompatible with international standards for restrictions on freedom of

expression … and should be abolished.” Organization for Security and Cooperation in Europe, “Joint

declaration on freedom of expression and ‘fake news’, disinformation and propaganda”, document

FOM.GAL/3/17, para. 2 (a). Available at www.osce.org/files/f/documents/6/8/302796.pdf.

9 Opinion No. 41/2017, paras. 98–101. See also opinion No. 62/2018, paras. 57–59.

10 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37, annex), principle 9

and guideline 8. See also Human Rights Committee, general comment No. 35, para. 35.

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9

Sossou would have enjoyed neither the right to a fair trial before an independent and impartial

tribunal nor his right to be presumed innocent, as provided for under articles 10 and 11 of the

Universal Declaration of Human Rights and article 14 (1) and (2) of the Covenant. The

Working Group is also concerned about the measures taken by the public prosecutor, namely

the submission of a criminal complaint against a journalist who had simply quoted statements

that he had made at a workshop. Although the Working Group does not have sufficient

information to reach a finding on these issues, it decides to refer the case to the Special

Rapporteur on the independence of judges and lawyers.

60.

Furthermore, the source alleges that the decision of the court of first instance was not

communicated to the defence. It is therefore not possible to know which paragraph of article

550 of the Digital Code was applied in Mr. Sossou’s case. If he was convicted under the third

paragraph of the article, his sentence of 18 months’ imprisonment was without legal basis, as

it exceeded the maximum penalty provided for in that paragraph.

61.

The Working Group recalls that a convicted person is entitled to have access to a duly

reasoned, written judgment of the trial court,11 and that the failure to provide such a judgment

in the present case constitutes a violation of article 14 (5) of the Covenant. Although Mr.

Sossou was ultimately successful in his appeal of the trial decision, the failure to provide a

copy of the judgment of the court of first instance amounted to a restriction on the exercise

of his rights, 12 as the legal basis for the conviction was not made clear to the defence

immediately after the trial.

62.

Lastly, the Working Group takes note of the source’s argument that the placement of

Mr. Sossou in custody violated articles 58 and 59 of the Code of Criminal Procedure. While

the Working Group considers itself competent to determine whether the detention was

ordered in accordance with applicable international standards, it is not its practice to take the

place of the national judicial authorities.13 It is therefore not in a position to decide the

question of whether the relevant provisions of national legislation were violated in the present

case, since this is a question for the national courts.

63.

The Working Group finds that the violations of the right to a fair trial were of such

gravity as to give Mr. Sossou’s detention an arbitrary character under category III.

64.

The source alleges that, initially, while in police custody and then in prison, Mr.

Sossou was held in appalling conditions that caused skin irritations and a chronic respiratory

infection. Although the source reports that the conditions of detention later improved, the

Working Group urges the Government to ensure that conditions in all places of deprivation

of liberty in Benin are in conformity with international standards.14 In particular, the Working

Group takes this opportunity to remind the Government of its obligation under article 10 (1)

of the Covenant to ensure that all persons deprived of their liberty are treated with humanity

and with respect for their inherent dignity.

65.

The Working Group would welcome the opportunity to conduct a visit to Benin. In

this context, it recalls that the Government extended a standing invitation to all special

procedure mandate holders on 31 October 2012.

Disposition

66.

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

The deprivation of liberty of Ignace Sossou, being in contravention of articles

9, 10, 11 and 19 of the Universal Declaration of Human Rights and articles 9, 14 and

19 of the International Covenant on Civil and Political Rights, is arbitrary and falls

within categories I, II and III.

11 Human Rights Committee, general comment No. 32 (2007) on the right to equality before courts and

tribunals and to a fair trial, para. 49.

12 Opinion No. 83/2019, para. 76. See also opinions No. 27/2019, paras. 78–79; and No. 14/2017, para.

55.

13 See, for example, opinion No. 1/2020, para. 51.

14 CCPR/C/BEN/CO/2, para. 26 (where the Human Rights Committee expressed concern about the poor

conditions of detention in Benin).

A/HRC/WGAD/2020/46

10

GE.20-13061

67.

The Working Group requests the Government of Benin to take the steps necessary to

remedy the situation of Mr. Sossou 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.

68.

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

case, the appropriate remedy would be to accord Mr. Sossou an enforceable right to

compensation and other reparations, in accordance with international law.

69.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

Sossou and to take appropriate measures against those responsible for the violation of his

rights.

70.

The Working Group requests the Government to bring its laws, particularly article

550 of the Digital Code, into conformity with the recommendations made in the present

opinion and with the commitments made by Benin under international human rights law.

71.

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

the present case to the Special Rapporteur on the promotion and protection of the right to

freedom of opinion and expression and the Special Rapporteur on the independence of judges

and lawyers, for appropriate action.

72.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

73.

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 compensation or other reparations have been made to Mr. Sossou;

(b)

Whether an investigation has been conducted into the violation of Mr. Sossou’s

rights and, if so, the outcome of the investigation;

(c)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of Benin with its international obligations in line with the

present opinion;

(d)

Whether any other action has been taken to implement the present opinion.

74.

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.

75.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of 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.

76.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has requested them to take account of its views

and, where necessary, 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.15

[Adopted on 25 August 2020]

15 Human Rights Council resolution 42/22, paras. 3 and 7.