A/HRC/WGAD/2020/64

GE.20-17669 (E) 030321 030321

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-ninth session, 23–27 November 2020

Opinion No. 64/2020 concerning Brice Laccruche Alihanga, Grégory

Laccruche Alihanga, Patrichi Christian Tanasa, Julien Engonga Owono

and Geaurge Ndemengane Ekoh (Gabon)

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 18 February 2020 the

Working Group transmitted to the Government of Gabon a communication concerning Brice

Laccruche Alihanga, Grégory Laccruche Alihanga, Patrichi Christian Tanasa, Julien

Engonga Owono and Geaurge Ndemengane Ekoh. The Government replied to the

communication on 20 May 2020. 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/2020/64

General Assembly

Distr.: General

23 December 2020

English

Original: French

A/HRC/WGAD/2020/64

2

GE.20-17669

Submissions

Communication from the source

4.

Brice Laccruche Alihanga is a national of Gabon and France born in 1982, in

Marseille, France. He was appointed as the President’s Chief of Staff in August 2018.

5.

Grégory Laccruche Alihanga is a national of Gabon and France born in 1985, in

Libreville. He is Mayor of Acanda commune.

6.

Patrichi Christian Tanasa is a national of Gabon and Romania born in 1982, in Iaşi,

Romania. He is an engineer.

7.

Julien Engonga Owono is a national of Gabon born in 1980, in Libreville. He is an

audit consultant.

8.

Geaurge Ndemengane Ekoh is a national of Gabon born in 1990, in Oyem, Gabon.

She is a cash manager.

a.

Arrest and detention

9.

According to the source, Brice Laccruche was arrested on 3 December 2019 and held

in police custody at the premises of the Directorate General of Intelligence, then placed in

detention on 13 December 2019. Grégory Laccruche was arrested on 27 November 2019 and

held in police custody, then placed in detention on 6 December 2019. Mr. Tanasa was arrested

on 25 November 2019 and held in police custody, then placed in detention on 28 November

2019. Mr. Engonga was arrested on 15 November 2019 and held in police custody, then

placed in detention on the night of 28 November 2019. Ms. Ndemengane was arrested on 20

November 2019 and held in police custody, then placed in detention at around 5 or 6 a.m. on

29 November 2019. These persons are being detained at the prison in Libreville.

10.

The source explains that the detentions were ordered as part of Operation Scorpion, a

programme which, under the guise of anti-corruption efforts, is aimed at eliminating alleged

political opponents. Under this operation, many people have been arrested, brought before

the courts and imprisoned without knowing the charges against them, such that they are

unable to mount a defence. In the present case, the five individuals in question are members

of the Association des jeunes émergents volontaires, of which Brice Laccruche was president.

b.

Legal analysis

11.

The source explains that, from police custody onwards, the legal procedure was not

followed. Indeed, the five persons in question were held in police custody beyond the legal

time limit (as stipulated in article 56 of the Code of Criminal Procedure) of 48 hours,

renewable once, except in cases provided for in article 439 of the Code. They were all held

in police custody for six days in connection with offences under the jurisdiction of the

specialized court. Furthermore, their lawyers were denied access to their case files during the

police custody. According to the source, such denial infringes not only domestic provisions

but also articles 9 and 10 of the Universal Declaration of Human Rights and article 9 (2) of

the Covenant. The source adds that denying the lawyers access to the case files prevents them

from verifying that the extensions were duly authorized and, if they were, that they were done

in keeping with the applicable law. Grégory Laccruche’s lawyer sent a letter to the State

prosecutor on 29 November 2019 to denounce the unlawfulness of the police custody and of

its extension.

12.

The source submits that the five persons concerned were brought before the

investigating judge and were the subject of detention procedures without their counsel having

had access to their case files (procedural documents or evidence that would justify the charges

against them). According to the source, either the case file does not contain any elements to

justify the charges brought by the prosecution, in which case the placement in detention,

without grounds, is completely arbitrary, or the file does contain such elements and the

defence should, therefore, have access to it, in keeping with the Code of Criminal Procedure,

in order to mount a defence and ensure the adversarial nature of the procedure. The source

concludes that in either scenario the rights of the defence have been violated, rendering the

detention arbitrary.

A/HRC/WGAD/2020/64

GE.20-17669

3

13.

According to the source, the lawyer of one of the five persons in question officially

requested to see the case file in a letter hand delivered to the investigating judge. The lawyer

received no response.

14.

The source claims that the prosecutor’s application to commence proceedings does

not include any information on the charges against the five persons concerned, who did not

have access to information that would be sufficient to justify their arrest and detention. In

support of this claim, the source refers to the detention orders for Brice Laccruche, Grégory

Laccruche and Mr. Tanasa. The orders state that they are charged with misappropriation of

public funds and, in respect of Brice and Grégory Laccruche, also with acts qualified as

money laundering.

15.

The source notes that the orders contain no information as to how the offences were

committed, how the persons concerned were involved or what acts might constitute money

laundering and complicity in misappropriation of funds. Since the defence was not heard, it

was unable to raise the fact that no information had been provided.

16.

According to the source, the orders are proof that the individuals are not charged with

any particular act. The orders simply refer to the prosecutor’s application to commence

proceedings, without providing any detail. The source therefore concludes that the decision

demonstrates that the accused were not informed of the charges against them, in violation of

international instruments and international law.

17.

The source argues that the individuals were not questioned by the investigating judge

prior to being placed in detention and that therefore, the legal procedure was not followed

and no adversarial debate was held by the investigating judge. Pretrial detention was ordered

without the accused or their counsel being allowed to raise any points whatsoever, as

illustrated by the orders lacking any entry along the lines of “the accused and his counsel

having been heard”.

18.

The source further submits that the cases of the five persons in question were not given

a fair hearing within the meaning of article 10 of the Universal Declaration of Human Rights.

In this case, the committal warrant was issued for each of the individuals before the judge

ordered their placement in pretrial detention; by law, the committal warrant should be issued

following the pretrial detention order.

19.

The source reports that, in the detention orders, the investigating judge deemed all the

criteria that might justify detaining Grégory Laccruche and Mr. Tanasa to be met, without

mentioning any facts to support his decision to order their detention. The same approach was

taken in relation to Mr. Engonga and Ms. Ndemengane. The source therefore concludes that

no justification was provided as to the grounds for detention, even though article 132 of the

Code of Criminal Procedure describes pretrial detention as an “exceptional measure”.

Moreover, the source recalls that when investigating judges assess the criteria for placing a

person in detention, they must do so in the light of the accused’s situation in concreto and of

clearly identified risks. Reproducing article 132 of the Code of Criminal Procedure in its

entirety does not suffice to illustrate the fulfilment of the criteria contained therein.

20.

The source concludes that the numerous invalidating actions, namely, denying the

defence access to the file, failing to respect the principle of equality of arms, refusing to hear

the accused and their counsel prior to ordering detention, keeping them in the dark as to the

charges and selecting purely theoretical criteria to support detention, without taking into

account either the personal circumstances of the accused or any real charges against them,

clearly demonstrate that the investigating judge was biased.

21.

Regarding detention conditions, the source submits that the five persons concerned,

like others detained under Operation Scorpion, are reportedly being held in inhuman

conditions. The source reports that Brice Laccruche is being held in solitary confinement,

without a prior procedure ordering such confinement, in an unlit space measuring 8 m2, amid

degrading conditions of hygiene. He was questioned for nights on end and has had no access

to the necessary medical care. The Consul General of France had to intervene to put an end

to these deplorable conditions of detention. As for Ms. Ndemengane, she is reportedly being

held in a prison block with extremely violent inmates who have committed murder and

similar crimes.

A/HRC/WGAD/2020/64

4

GE.20-17669

22.

Furthermore, the source claims that on 26 January 2020, at around 2 a.m., Mr. Tanasa

was tortured in an isolation cell by three officials in balaclavas. He was allegedly forced to

strip naked and was beaten, including on his genitals, with a thick rope. The officials also

reportedly took photographs of Mr. Tanasa naked. They threatened to kill him and harm his

family if he mentioned the event.

Response from the Government

23.

On 18 February 2020, the Working Group transmitted to the Government a

communication regarding the five persons in question, requesting it to provide detailed

information about their situation by 20 April 2020 at the latest. More specifically, it requested

the Government to clarify the facts and the legal provisions justifying the detention of the

five persons, as well as the compatibility of the detention with the obligations of Gabon under

international human rights law and, specifically, with the treaties that the State has ratified.

The Working Group also called on the Government to safeguard the physical and mental

integrity of the five persons.

24.

On 3 April 2020, the Government requested an extension of the time limit for its reply.

The Working Group granted the extension, and the Government responded on 20 May 2020.

25.

In its reply, the Government reports that the five persons in question were arrested as

part of Operation Scorpion, aimed at rooting out corruption. According to the Government,

an investigation in November 2019 led to their arrest and subsequent detention at the

premises of the Directorate General of Counter-Intelligence and Military Security. During

their police custody, they met regularly with their lawyers, who were given full access to the

documentation of the proceedings, in keeping with article 61 of the Code of Criminal

Procedure. Furthermore, they were able to maintain their family ties through visits with their

loved ones, who, at their request, brought them food, clothing and anything else they needed.

26.

The Government explains that since the investigation was not completed within the

48-hour period, the police custody was extended for 48 hours, in line with article 439 of the

Code of Criminal Procedure. Although the custody had already been extended, some of the

lawyers applied to the State prosecutor – despite the legal provisions – for exceptional

extensions in order to make proposals to the State on behalf of their clients. Since the State

prosecutor rejected the proposals, the proceedings simply took their course. Mr. Tanasa, Mr.

Engonga and Ms. Ndemengane were brought before the court on 27 November 2019. As for

Grégory and Brice Laccruche, they were brought before the court on 6 and 13 December

2019, respectively.

27.

The Government notes that Operation Scorpion led to proceedings against several

people; some had lawyers to defend their rights, while others did not. They were all treated

in the same manner and in keeping with the law. Indeed, when they were brought before the

court, the respondents were received by all of the officials of the specialized prosecution

service. The preliminary interviews consisted in comparing their accounts with their signed

police reports. This enabled the prosecutor to better classify the charges in his written

application to open an investigation, which is the motion to refer a case to an investigating

judge. It should be noted that the specialized prosecution service deemed it appropriate to

open investigations into the five persons concerned and that investigations were opened only

when there was sufficient evidence. Contrary to the affirmations made by counsel for the

accused, the written applications referring the cases to investigating judges did contain the

charges.

28.

The Government notes that the placement of the persons concerned in pretrial

detention was in line with articles 115 and 132 of the Code of Criminal Procedure. No

committal warrant can be issued by a judge without a detention order. Mr. Tanasa,

Mr. Engonga and Ms. Ndemengane, who were brought before the court late in the afternoon

of 27 November 2019, were charged at around 3 a.m. on 28 November 2019. The accused

and their counsel were formally notified of the pretrial detention orders and the judges gave

them the orders to read. The accused and their counsel signed the notification records, which

bear the same date as the committal warrants, after reading the orders. Only Mr. Tanasa

refused to sign the record, on the grounds that the detention order was missing. His refusal is

noted in the notification record.

A/HRC/WGAD/2020/64

GE.20-17669

5

29.

The detention orders contained material errors; however, these did not undermine

their form or content. The notifications of the orders were not transmitted to the accused and

their counsel until the errors were corrected, three days later. That is why some of the lawyers

considered that the committal warrants had been issued without a detention order.

Paradoxically, the same lawyers lodged an appeal with the Indictments Chamber against the

very orders whose existence they were calling into question.

30.

Regarding the complaint made to the investigating judges for not conducting

preliminary questioning prior to placement in detention, the Government notes that initial

hearings are not adversarial, because all judges do at that time is verify the identities of the

accused and inform them of the charges. Nevertheless, the accused may make voluntary

statements that are included in the record. In other words, there is no questioning on the

merits of the matter.

31.

Furthermore, at the initial hearing, none of the lawyers requested access to the case

file.

32.

The cases of Grégory Laccruche, Mr. Engonga and Ms. Ndemengane were heard on

the merits on 28 January, 18 February and 3 March 2020, respectively. Notices of

consultation were transmitted to their lawyers three days before the dates of their hearings.

All their lawyers consulted the files regularly before the questioning on the merits; none of

them looked at the annexed evidence, consisting of correspondence and administrative and

accounting documents.

33.

Regarding the conditions of detention, the Government submits that the four men held

in pretrial detention at the Libreville short-stay prison following Operation Scorpion are all

being housed in annex 1, a building set up seven months ago. They each have a cell with

lighting and the toilets have a permanent water supply. As for Ms. Ndemengane, she was

assigned to the first cell block, where she shares her cell with eight detainees who show no

signs of violence. She was appointed head of the cell block by prison officials in February

2020. The five have full enjoyment of their rights, in keeping with laws and regulations,

including the right to visitation by relatives (two visits per week, on average) and their

counsel, and the right to telephone calls. At their request, their daily meals are provided by

their relatives. Their right to health is also respected, either by means of regular, twice weekly

visits by doctors or by doctors’ visits carried out at the request of the detainee.

34.

Concerning the allegations of torture against Mr. Tanasa, an investigation by the State

prosecutor’s office, jointly monitored by the Directorate General of Intelligence and the

Directorate General of Counter-Intelligence and Military Security, has shown that the

allegations were false. After the investigating judge remanded him to the short-stay prison,

Mr. Tanasa was seen by a doctor on 20 January 2020 for lower back pain and painful

urination. The clinical examination revealed slight discomfort when probing the left-hand

hernial orifice and no visible hernia or bruising. The doctor diagnosed a urinary tract infection

and prescribed treatment. Mr. Tanasa never completed the assessment requested by the

doctor.

35.

Lastly, the Government emphasizes that Brice Laccruche was never in an isolation

cell prior to being assigned to his current cell. He did, however, spend two weeks in the men’s

general holding area, as did the other persons accused as part of Operation Scorpion. Some

of the detainees, including Brice and Grégory Laccruche, have dual French and Gabonese

nationality. Even though, under domestic law, they can avail themselves only of their

Gabonese nationality while in Gabon, the authorities allowed the French consular authorities

to provide them with consular protection. The Consul General of France visited and spoke

with them multiple times when they were in police custody and has done so since their

placement in pretrial detention.

Additional comments from the source

36.

The source begins by noting that the Government recognizes in its response that

instruments governing the duration of police custody were violated. The Government’s

explanations and supporting documents demonstrate that Grégory Laccruche was in police

custody from 27 November to 6 December 2019, in other words far beyond the maximum

legal time limit, which is of six days – or 48 hours, extended twice – for offences under the

A/HRC/WGAD/2020/64

6

GE.20-17669

jurisdiction of the specialized court. Brice Laccruche was placed in police custody on 3

December 2019. The Government explains that he was brought before the investigating judge

on 13 December 2019, meaning that his police custody lasted 10 days, far longer than

prescribed by law. Moreover, there is no evidence that an extension of his police custody was

ordered before 7 December 2019, meaning that the extension came after the 48-hour period

stipulated in article 439 of the Code of Criminal Procedure. Thus, Brice Laccruche was

detained arbitrarily following the end of that period, which ran from 3 December to 5

December 2019.

37.

What is more, the source notes that in his applications of 7 December 2019, the State

prosecutor ordered a second extension of “no more than eight days”, which is completely

illegal, since the two extensions authorized by law cannot exceed 48 hours each. Accordingly,

the source submits that the Government itself confirms the violations denounced in that

regard.

38.

The source reiterates that the applications to commence proceedings that triggered the

opening of cases before the investigating judges did not contain the charges against the five

persons in question. In response, the Government merely states that the applications in

question did contain the charges. The source goes on to specify that the applications refer

only to the offence, the general basis for the investigation, without providing any information

on the facts that might speak to the substance of the prosecution proceedings. Furthermore,

the Government does not provide any evidence that the five were informed of the charges

against them.

39.

Regarding the placement in detention, the source notes that the Government, in an

attempt to refute the argument that the committal warrants were issued after the detention

orders, submitted that the orders were tarnished by material errors that required correcting,

which was done three days after the orders were drafted. However, at no time was the defence

informed of the supposed errors, which were said, without any proof, to have no impact on

either the content or the form of the orders. The Government provides no information on the

nature of these supposed material errors, the reasons why it took three days to correct them

or the reasons why the claimants’ defence was never informed of this problem.

40.

Lastly, the defence never claimed that the orders had not been issued. It simply noted

that they were issued after the committal warrants, which the Government does not deny.

41.

As for the preliminary questioning prior to placement in detention, the source notes

that the Government recognizes that in such cases there is no adversarial debate at the initial

hearing because the judge only verifies the accused’s identity and informs him or her of the

charges. However, the source argues that, under article 133 of the Code of Criminal

Procedure, if the accused “is assisted by counsel, the investigating judge rules in chambers,

following an adversarial debate during which he or she hears the public prosecution service,

as well as the observations of the accused and his or her counsel”.

42.

The source submits that, contrary to the Government’s claims, the individuals in

question have been in solitary confinement for over four months. Some of them are being

forced to remain in completely dark cells. The defence has denounced the detention

conditions, but there has been no improvement.

43.

Brice Laccruche has been in solitary confinement since his placement in detention and

has been banned from any reading for over three months. These infringements of human

dignity have also been reported to the prison and judicial authorities and the Government,

but there has been no change. The request for a psychiatric evaluation of Brice Laccruche

was denied in an order of 4 May 2020 despite the fact that he was in a state of extreme

fragility.

44.

Concerning access to procedural documents, the source reports that the investigating

judge admitted, in a letter of 23 December 2019, that he would not allow Brice Laccruche’s

lawyer to consult the case file, on the grounds that procedural files were made available to

lawyers 24 hours before questioning and that, at the time of the consultation request, no

questioning was scheduled. In the source’s view, this indicates that the investigating judge

has no intention of respecting the principle of adversarial proceedings or the rights of the

parties.

A/HRC/WGAD/2020/64

GE.20-17669

7

45.

The fact that the procedural case file is made available to lawyers 24 hours before

questioning obviously does not dispense the judge from ensuring that the defence has

unfettered access to the file at any stage of proceedings so that it has the same information as

the prosecution at its disposal. Such access to the file is all the more crucial as the defence

did not have any access during the preliminary investigation, when the file is reserved for the

prosecution.

Discussion

46.

The Working Group thanks the parties for the information provided and for their

cooperation.

47.

In determining whether the deprivation of liberty of Brice Laccruche, Grégory

Laccruche, Mr. Tanasa, Mr. Engonga and Ms. Ndemengane is arbitrary, the Working Group

has regard to the principles established in its jurisprudence to deal 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. Furthermore, mere assertions by the

Government that lawful procedures have been followed are not sufficient to rebut the

source’s allegations (A/HRC/19/57, para. 68).

Category I

48.

The source claims that the five persons in question were held in police custody for

longer than the period provided for by law, that is, a 48-hour period, renewable once under

article 56 of the Code of Criminal Procedure, or twice in the exceptional circumstances set

out in article 439 of the Code. According to the source, the five were all held in excess of the

maximum period, which is six days for offences under the jurisdiction of the specialized

court. In its response, the Government explains that since the investigation was not completed

within the 48-hour period, police custody was extended for 48 hours, in line with article 439

of the Code of Criminal Procedure. Despite those extensions, some of the lawyers requested

the State prosecutor to further extend custody, which was denied, and the case was brought

before the court. The Government also provided information according to which the cases of

Mr. Tanasa, Mr. Engonga and Ms. Ndemengane were brought before the courts on 27

November 2019.

49.

However, the source stresses in its additional observations that the explanation and

documents provided by the Government show that the police custody exceeded the legal

limits. For example, Grégory Laccruche’s police custody lasted from 27 November to 6

December 2019, longer than the maximum period of six days. Similarly, Brice Laccruche

was held from 3 December until his hearing before the investigating judge on 13 December

2019, in other words his police custody lasted 10 days. Furthermore, the source points out

that there is no information proving that the extension of Brice Laccruche’s custody was

ordered before 7 December 2019, which means that the extension took place after the 48-

hour period stipulated in article 439 of the Code of Criminal Procedure. Consequently, Brice

Laccruche was detained arbitrarily from the expiration of the 48-hour period on 5 December

2019. Moreover, the source notes that the documents adduced by the Government indicate

that the State prosecutor ordered a second extension of Brice Laccruche’s police custody “for

a period not exceeding eight days”, in violation of the Code.

50.

After taking into account all the information submitted by the parties, the Working

Group is of the view that the source’s claims that the five persons in question were held

beyond the legal limit are credible and have not been refuted by the Government. Grégory

and Brice Laccruche appear to have been held far beyond the six-day period authorized under

domestic law. The Government has failed to provide any information on the length of the

police custody of the other three accused, Mr. Tanasa, Mr. Engonga and Ms. Ndemengane,

to refute the source’s claims. The Government has also failed to provide any information

proving that Brice Laccruche’s custody was extended before 5 December 2019. It therefore

appears that he was held without a formal extension of his police custody at the end of the

A/HRC/WGAD/2020/64

8

GE.20-17669

initial period of 48 hours.1 The Working Group considers that detaining a person beyond

legal limits, without proceeding with a required extension, constitutes a violation of article 9

(1) of the Covenant, which provides that no one shall be deprived of his liberty except on

such grounds and in accordance with such procedure as are established by law.2 The detention

of the five persons concerned beyond the legal limit was therefore without legal grounds.

51.

The source further submits that the lawyers of the five persons in question were denied

access to the case files while their clients were in police custody. Consequently, in the

source’s view, the lawyers were unable to check that the extensions of the police custody had

been duly authorized and carried out in line with the relevant legal provisions. In its response,

the Government indicates that during their police custody, the five met regularly with their

lawyers, who were given access to all procedural documents in keeping with article 61 of the

Code of Criminal Procedure, and that none of the lawyers requested access to the case file at

the initial hearing before the court. However, the Government did not provide any further

details to substantiate its assertions or refute the source’s allegations, in particular, to specify

what information was made available to the lawyers and at what point during their clients’

police custody they were given access to it.

52.

The Working Group is of the view that the violation of article 9 (1) of the Covenant

was worsened in this case by denying the five persons’ lawyers access to their clients’ files

while they were in police custody. As the Working Group has stated, for criminal proceedings

to be considered as being guided by the adversarial principle and the principle of equality of

arms, detainees and their lawyers must have access to the documents relating to their

detention, as these might prove critical in establishing the legal basis of the detention.3 The

Working Group has acknowledged that some restrictions on the disclosure of information to

detainees might be justified, provided that they are necessary and proportional to the pursuit

of a legitimate aim, such as protecting national security, and that the State has demonstrated

that less restrictive measures, for instance providing redacted summaries clearly indicating

the factual basis for detention, would not achieve the same result.4 Notwithstanding the

above, the Government has not submitted any information to justify why the individuals in

the present case received restricted or limited information.

53.

The source also submits that the application to commence proceedings did not contain

any information on the charges against the five persons in question. Consequently, they did

not have sufficient information on the legal basis for their arrest and detention. With reference

to the detention orders for Brice and Grégory Laccruche and Mr. Tanasa in connection with

misappropriation of public funds and money laundering, the source notes that no information

was provided as to the means supposedly used to take part in or commit the offences or what

acts might have constituted such offences. In its response, the Government states that the acts

for which the accused were charged figured in the applications to commence proceedings.

54.

The Working Group recalls that article 9 (2) of the Covenant requires that anyone who

is arrested be promptly informed of the reasons for the arrest and of any charges brought

against him or her. The information provided to the arrested person must include not only the

general legal basis for the arrest, but also sufficient factual details, such as the nature of the

unlawful act, to point to the merits of the complaint.5 In this case, the lack of information on

1 Opinion No. 62/2019, paras. 30 and 31 (containing the finding that holding a person in pretrial

detention without extending the detention order within the required period is arbitrary). An

application to commence proceedings dated 7 December 2019 mentions that an extension was

required on 5 December, but the Government did not provide any evidence that an extension order

was issued on that date.

2 Opinion No. 1/2020, para. 52 (containing the finding that pretrial detention in excess of the maximum

limit is a violation of article 9 (1) of the Covenant) and Human Rights Committee, general comment

No. 35 (2014), para. 23 (noting that article 9 of the Covenant requires compliance with domestic rules

that define the legal limits on the duration of detention). See also CCPR/CO/70/GAB, para. 13;

CAT/OP/GAB/1, paras. 42 and 43 and CAT/C/GAB/CO/1, para. 10.

3 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 12

and guideline 11.

4 Ibid., guideline 13. See also opinions No. 70/2019, para. 79 and No. 78/2018, para. 78.

5 Opinion No. 25/2018, para. 36 and Human Rights Committee, general comment No. 35, para. 25.

A/HRC/WGAD/2020/64

GE.20-17669

9

the nature of the offences allegedly committed by the five persons in question constitutes a

violation of article 9 (2) of the Covenant. It also constitutes a violation of their right, under

article 14 (3) (a) of the Covenant, to be informed promptly of the nature and cause of the

charges against them.6

55.

Furthermore, the documents submitted by the Government, including those relating

to the police custody and records of arrest, indicate that in Gabon the extension of police

custody by 48-hour increments is ordered by the State prosecutor. Articles 56 and 439 of the

Code of Criminal Procedure provide for such extension with the written authorization of the

State prosecutor.

56.

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 stated, 48

hours is ordinarily sufficient to satisfy the requirement of bringing a detainee “promptly”

before a judge following arrest, and any longer delay must remain absolutely exceptional and

be justified under the circumstances.7 In the present case, the five persons in question were

apparently not brought before a judicial authority within 48 hours of their arrest. Instead, they

were arrested and placed in police custody under the supervision of the State prosecutor, who

approved extensions of the custody. As the Working Group has previously noted, a

prosecuting body cannot be considered to be a judicial authority for the purposes of article 9

(3) of the Covenant.8 Consequently, the legal basis for their detention was not in line with the

requirements of the Covenant.

57.

Lastly, the source reports that when issuing the pretrial detention orders, the

investigating judge did not mention any factual elements to substantiate the decision to detain

the five persons concerned. The source underscores that the detention orders refer to

requirements under article 132 of the Code of Criminal Procedure9 but do not provide any

reason as to why detention is necessary in each case. The source therefore concludes that no

justification was provided for the detention. In its response, the Government asserts that the

placement of the accused in pretrial detention complied with article 132 of the Code and that

only those accused persons against whom there was sufficient evidence could be prosecuted.

58.

According to article 9 (3) of the Covenant, pretrial detention must be the exception

rather than the rule and should be ordered for the shortest time possible.10 Detention pending

trial must be based on an individualized determination that it is reasonable and necessary for

such purposes as to prevent flight, tampering with evidence or the recurrence of crime.11 The

courts must examine whether alternatives to pretrial detention, such as release on bail, would

render detention unnecessary.12 In this case, the Government has not demonstrated that the

judicial authorities conducted an individualized examination of the circumstances of each of

the five persons in question, including the consideration of alternatives to detention, to justify

the need to detain them. Without such oversight, their pretrial detention was not correctly

instituted and, therefore, has no legal basis.13

6 Human Rights Committee, general comment No. 32 (2007), para. 31.

7 Human Rights Committee, general comment No. 35, para. 33. See also CAT/C/GAB/CO/1, para. 10.

8 Human Rights Committee, general comment No. 35, para. 32. See also opinions No. 41/2020, para.

60, No. 5/2020, para. 72 and No. 14/2015, para. 28. See also A/HRC/45/16/Add.1 para. 35.

9 Article 132 stipulates that pretrial detention is an exceptional measure and may be ordered only when

it is the sole way of preserving evidence or preventing tampering with witnesses or accomplices or

when it is necessary to preserve public order after the offence, prevent other offences from being

committed or ensure that the accused is present in court. The detention order for Brice Laccruche

appears to contain some reasoning related to this provision.

10 A/HRC/19/57, paras. 48–58, and opinions No. 62/2019, paras. 27–29, and No. 5/2019, para. 26. The

Working Group’s jurisprudence on this matter matches the findings of other human rights

mechanisms. See, for example, CCPR/CO/70/GAB, para. 13, CAT/OP/GAB/1, paras. 44, 45 and 73–

77 (expressing concern at the systematic practice of placing persons in pretrial detention) and

A/HRC/37/6, paras. 118.31–118.33.

11 Human Rights Committee, general comment No. 35, para. 38.

12 Ibid.

13 Opinions No. 36/2020, para. 51 and No. 68/2019, para. 96.

A/HRC/WGAD/2020/64

10

GE.20-17669

59.

For these reasons, the Working Group finds that the detention of the five persons in

question has no legal basis, is contrary to article 9 of the Universal Declaration of Human

Rights and article 9 of the Covenant and is, therefore, arbitrary under category I.

Category III

60.

The source claims that the preliminary procedure before the investigating judge was

not adversarial owing to several violations of the procedure. According to the source, the five

persons concerned were not questioned by the investigating judge prior to being placed in

pretrial detention. Therefore, pretrial detention was ordered without the accused or their

lawyers being able to make observations. Furthermore, the committal warrant was issued for

each of these persons before the judge had issued a pretrial detention order. Lastly, as

previously noted, the source submits that the five were brought before the investigating judge

and were the subject of a detention procedure without their lawyers being able to access their

case files.

61.

In its response, the Government states that at initial hearings, judges only verify the

identity of the accused and inform them of the charges. There is no examination of the merits.

Nevertheless, the accused may make voluntary statements, which are included in the record.

The Government further states that the detention orders contained material errors that were

corrected three days later and notified to the accused and their lawyers. That is why the

lawyers believed that the committal warrants had been issued without detention orders.

Committal warrants cannot be issued without a prior detention order. The accused’s lawyers

had access to the case files during their clients’ police custody and detention. In particular,

the lawyers of Grégory Laccruche, Mr. Engonga and Ms. Ndemengane received consultation

notices three days before the hearings and regularly consulted the case files before the

accused were questioned.

62.

The Working Group is of the view that the source made credible claims, unrefuted by

the Government, that the violations of procedure rendered the pretrial procedure against the

five persons in question unfair. The Government apparently acknowledges that neither the

accused nor their lawyers were heard at the initial hearing before the accused were placed in

detention, and it does not provide any explanation of the nature of the errors in the detention

orders. Moreover, the Government failed to provide any details to support its assertion that

the lawyers had full access to the files, in particular what specific information the lawyers

had access to and when, bearing in mind that the burden of proof when refuting claims rests

with the Government.14 The Working Group is not convinced that the lawyers of the five

persons in question were in fact granted access to the case files from the time of arrest,15

throughout the proceedings or in a timely manner allowing them to prepare their defence.

Consequently, the proceedings that led to the detention of the five persons did not meet the

standards of a fair trial within the meaning of article 10 of the Universal Declaration of

Human Rights and article 14 (1) of the Covenant. Furthermore the five persons in question

did not have access to their case files, in violation of their right to adequate time and facilities

for the preparation of their defence, in line with article 14 (3) (b) of the Covenant.16 In the

light of the claims of unfairness, the Working Group has decided to refer the case to the

Special Rapporteur on the independence of judges and lawyers.

63.

In addition, the source alleges that Mr. Tanasa was tortured in his cell by three officials

in balaclavas on 26 January 2020. He was allegedly forced to undress and beaten in the genital

area with a thick rope, and the officials took photographs of him naked. They also allegedly

threatened to kill him and harm his family if he told anyone how he had been treated. The

Government denies these claims in its response, noting that the public prosecution service

conducted an investigation and found no evidence to support the claims. Moreover, Mr.

Tanasa underwent a medical examination on 20 January 2020.

14 The source, on the other hand, submitted a letter dated 17 December 2019 from one of the lawyers to

the investigating judge requesting access to the evidence in the case file.

15 Opinions No. 30/2020, para. 95 and No. 78/2018, para. 79. See also A/HRC/30/37, annex, principle

12 and guidelines 5 and 11.

16 Opinion No. 70/2019, para. 79 and Human Rights Committee, general comment No. 32, para. 33.

A/HRC/WGAD/2020/64

GE.20-17669

11

64.

The Working Group considers that the source has presented a credible prima facie

case that Mr. Tanasa was subjected to torture and ill-treatment.17 The Working Group is not

convinced by the information submitted by the Government in rebuttal of these allegations.

In particular, it notes that the Government’s argument that Mr. Tanasa underwent a medical

examination on 20 January 2020 has little probative value, as the acts of torture were

allegedly committed six days later, on 26 January 2020. Mr. Tanasa’s allegations of torture

and ill-treatment apparently point to a violation of the absolute prohibition of torture as a

peremptory norm of international law, article 5 of the Universal Declaration of Human

Rights, article 7 of the Covenant and articles 2 and 16 of the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment, to which Gabon is a party.

The Working Group also considers it very unlikely that Mr. Tanasa would be able to attend

court and effectively take part in his own defence while in pretrial detention, owing to the

beatings and humiliation he experienced, thereby corroborating the finding that the alleged

torture violated his right to a fair trial.18

65.

In addition, the source submits that the five persons in question were held in solitary

confinement for long periods without any prior procedure to regulate such confinement. The

Government responded that Brice Laccruche was never placed in solitary confinement. The

Working Group recalls that prolonged solitary confinement of over 15 consecutive days is a

violation of applicable norms, such as rules 43 to 45 of the United Nations Standard

Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). According to

rule 45 of the Nelson Mandela Rules, the imposition of solitary confinement must be

accompanied by certain safeguards. Solitary confinement must only be used in exceptional

cases as a last resort, for as short a time as possible, be subject to independent review, and it

must be authorized by a competent authority.19 The Working Group urges the Government

to ensure that these conditions are respected, as solitary confinement may amount to torture

or other cruel, inhuman or degrading punishment.20 Solitary confinement may have a severe

impact on the fairness of proceedings against an individual and on the application of the

equality of arms to both the prosecution and the defence.

66.

The Working Group refers the allegations of torture and prolonged solitary

confinement in the present case to the Special Rapporteur on torture and other cruel, inhuman

or degrading treatment or punishment.

67.

The Working Group concludes that the violations of the right to a fair trial are of such

gravity as to give the deprivation of liberty of the five persons concerned an arbitrary

character under category III.

Final observations

68.

The source submits that the five persons in question are being detained in inhuman

conditions. Brice Laccruche was held in a room measuring 8 m2, in degrading conditions of

hygiene and with no lighting, and he was prohibited from reading of any sort. According to

the source, a request for his psychiatric evaluation, as he is in a state of extreme fragility, was

denied on 4 May 2020. The Consul General of France tried to intervene to improve the

deplorable conditions of detention. However, despite the fact that reports were submitted to

the prison and judicial authorities and the Government denouncing the detention conditions,

nothing changed. In addition, the source claims that Ms. Ndemengane is being held with

extremely violent women who have committed violent crimes.

17 Opinions No. 62/2019, para. 40 and No. 5/2019, para. 32. See also CAT/OP/GAB/1, paras. 55–62.

18 Opinions No. 5/2020, para. 81, No. 59/2019, para. 69, No. 32/2019, para. 42, No. 53/2018, para. 77

(c), No. 52/2018, para. 79 (j), No. 47/2017, para. 28 and No. 29/2017, para. 63. See also

E/CN.4/2004/3/Add.3, para. 33.

19 Opinion No. 52/2018, para. 79 (d).

20 General Assembly resolution 68/156, para. 28.

A/HRC/WGAD/2020/64

12

GE.20-17669

69.

The Government denies the allegations regarding inhuman conditions of detention,

noting that the men of the group each have their own cell with lighting and functioning toilets

hooked up to a permanent supply of water. Ms. Ndemengane shares her cell with eight

women who show no signs of violence. The five enjoy all their rights under the law, including

the right to family visits and to regular medical check-ups.

70.

The Working Group is deeply concerned about the conditions in which the five

persons concerned are reportedly detained and the negative impact these conditions might

have on their health, safety and ability to take part in their defence.21 The reported conditions

of detention are clearly contrary to applicable norms, including rules 12 to 22 of the Nelson

Mandela Rules. While it takes note of the Government’s response, the Working Group is of

the view that a considerable body of evidence has been amassed in recent years on the

extremely poor conditions of detention in Gabon.22 Those conditions were confirmed in the

case law of the Working Group as recently as November 2019.23 The Working Group urges

the Government to immediately release all five persons concerned and ensure that they

receive the necessary medical care. In the light of the risks posed to their health, the Working

Group has decided to refer the present case to the Special Rapporteur on the right of everyone

to the enjoyment of the highest attainable standard of physical and mental health.

71.

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

deprivation of liberty in Gabon meet international standards. 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. Furthermore, under article 10 (2) (a) of the

Covenant, detainees awaiting trial should be held separately from convicted persons and

treated in a different manner befitting their status as untried persons.24 When a State deprives

a person of liberty, it becomes responsible for that person’s safety and has the duty to protect

that person from other persons in custody.25

72.

The Working Group recognizes that all States have an obligation to investigate,

prosecute and punish those responsible for crimes, including in cases of alleged

misappropriation of public funds and money laundering. However, the Working Group’s

opinion in this case is focused not on the charges that are the subject of the proceedings

against the five persons in question, but rather on the conditions under which the proceedings

that led to their detention were conducted. States must respect the provisions of the Covenant,

violations of which have been identified in this case.26

73.

Lastly, the Working Group would welcome the opportunity to conduct a country visit

to Gabon. In this context, it recalls that the Government extended a standing invitation to all

special procedure mandate holders on 29 October 2012. As an elected member of the Human

Rights Council for the period 2021–2023, Gabon is well positioned to show its commitment

to human rights by inviting the Working Group to conduct a country visit.

Disposition

74.

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

The deprivation of liberty of Brice Laccruche Alihanga, Grégory Laccruche Alihanga,

Patrichi Christian Tanasa, Julien Engonga Owono and Geaurge Ndemengane Ekoh,

being in contravention of articles 9 and 10 of the Universal Declaration of Human

Rights and of articles 9 and 14 of the International Covenant on Civil and Political

Rights, is arbitrary and falls within categories I and III.

75.

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

remedy the situation of the five persons in question without delay and bring it into conformity

21 Opinion No. 25/2018, para. 42.

22 See, for example, CAT/OP/GAB/1, paras. 63–72, CAT/C/GAB/CO/1, para. 17, A/HRC/37/6, paras.

118.31 –118.33 and opinions No. 62/2019, No. 5/2019 and No. 25/2018.

23 Opinion No. 62/2019, para. 27.

24 CCPR/CO/70/GAB, para. 14, CAT/OP/GAB/1, paras. 83 and 84 and CAT/C/GAB/CO/1, para. 17 (c).

25 CAT/OP/GAB/1, para. 58.

26 Opinion No. 1/2020, para. 74.

A/HRC/WGAD/2020/64

GE.20-17669

13

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.

76.

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

case, the appropriate remedy would be to release the five persons in question immediately

and accord them an enforceable right to compensation and other reparations, in accordance

with international law.27 In the current context of the global coronavirus disease (COVID-19)

pandemic and the threat that it poses in places of detention, the Working Group calls upon

the Government to take urgent measures to ensure their immediate release.

77.

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

investigation of the circumstances surrounding the arbitrary deprivation of liberty of the five

persons in question, including their allegations of torture and ill-treatment, and to take

appropriate measures against those responsible for the violation of their rights.

78.

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

the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment and the Special Rapporteur on the right of everyone to the enjoyment

of the highest attainable standard of physical and mental health, for appropriate action.

79.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

80.

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 Brice Laccruche Alihanga, Grégory Laccruche Alihanga, Patrichi

Christian Tanasa, Julien Engonga Owono and Geaurge Ndemengane Ekoh have been

released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to the five persons

in question;

(c)

Whether an investigation has been conducted into the violation of the rights of

the five persons in question 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 Gabon with its international obligations in line with the

present opinion;

(e)

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

81.

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.

82.

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.

83.

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

27 Working Group on Arbitrary Detention, deliberation No. 10 (A/HRC/45/16, annex I) (on the full

range of reparations to which victims of arbitrary deprivation of liberty are entitled).

A/HRC/WGAD/2020/64

14

GE.20-17669

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.28

[Adopted on 24 November 2020]

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