Opinion; Subjects: COMOROS, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.21-19445 (E) 020322 020322
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-first session, 6–10 September 2021
Opinion No. 26/2021 concerning Saïd Ahmed Saïd Tourqui (Comoros)
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, 1 on 9 March 2021 the Working Group
transmitted to the Government of the Comoros a communication concerning Saïd Ahmed
Saïd Tourqui. The Government has not replied to the communication. The State is not 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).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/26
General Assembly
Distr.: General
22 December 2021
English
Original: French
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Submissions
Communication from the source
4.
Saïd Ahmed Saïd Tourqui is a Comorian national born in March 1973. He works as a
writer under the nom de plume “SAST” and lives in Moroni.
a.
Political context
5.
The source explains that, following a national dialogue (assises nationales) from 5 to
12 February 2018, a constitutional referendum was held on 30 July 2018. The draft
constitutional amendment was accepted by over 92 per cent of the voters. The constitutional
reform meant that the President could serve two consecutive five-year terms instead of only
one. In addition, the positions of three Vice-Presidents and the Constitutional Court, the
highest court of justice in the Comoros, were abolished, and Sunni Islam was introduced as
the religion of the State.
6.
The pre-referendum campaign was reportedly conducted amid tensions and efforts to
intimidate the opposition. The announcement of the referendum results was followed by
many incidents of violence and arrests.
7.
Following the amendment of the Constitution, an early presidential election was
called for 24 March 2019, in which the incumbent was re-elected in the first round with nearly
60 per cent of the vote. According to the opposition, the vote was marred by irregularities.
b.
Arrest and detention
8.
In the period leading up to the referendum of 30 July 2018, Mr. Tourqui criticized the
draft constitutional amendment, for instance through his lobbying of Comorian
parliamentarians.
9.
According to the source, Mr. Tourqui was arrested at his home on 9 August 2018, at
around 5 p.m., by uniformed gendarmes. They arrested him pursuant to the flagrante delicto
procedure, which does not require the presentation of an arrest or search warrant. They then
searched his home and confiscated several items, including a computer and a USB key. They
also found a hunting rifle and an automatic pistol.
10.
The source notes that the arrest was part of a campaign to arrest opposition members
in connection with the 30 July 2018 referendum. To justify placing the persons stopped for
questioning in police custody, the public prosecutor reportedly stated that they had been
involved in an “organized killing scheme for the purpose of assassinating State officials and
grabbing power”.
11.
Mr. Tourqui was later taken to the headquarters of the gendarmerie, where he was
held in custody until 14 August 2018. During those five days, he was questioned without his
lawyer present. The conditions of his custody were, according to the source, particularly
gruelling and ill-suited to his state of health. He was, for example, held in a tiny cell with no
light or ventilation.
12.
The source notes that, on 14 August 2018, five days after the start of his detention,
Mr. Tourqui was brought before the prosecutor and charged with offences under articles 71,
72, 80 and 81 of the Criminal Code, on attacks, conspiracies and other offences undermining
the authority of the State and the integrity of the national territory, and with offences against
the State. That same day, he was also brought before the investigating judge, who ordered
that he be placed in pretrial detention at Moroni prison. It was not until after he was remanded
in custody that he was finally allowed to benefit from the assistance of a lawyer.
13.
The source explains that, on 15 December 2018, the State Security Court sentenced
Mr. Tourqui to life imprisonment after a hasty two-day trial. The State Security Court also
convicted seven other individuals in the same case.
14.
According to the source, in a statement dated 14 December 2018, the defence lawyers
announced that they had contested the competence of the State Security Court before the
Constitutional Court on the grounds that Act No. 81-005/PR of 20 March 1981 establishing
the State Security Court was unconstitutional. The defence lawyers noted, inter alia, that the
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lack of a second hearing was contrary to article 15 of the Constitution, which enshrines the
right of all inhabitants to access to justice and a defence. Having been unsuccessful at getting
the State Security Court declared incompetent, they decided to boycott the hearings in protest.
15.
The source also notes that, during the trial, the prosecution submitted as evidence
banners condemning the constitutional amendment, which were allegedly made by Mr.
Tourqui. One of the banners called for the army to ensure “republican legality”. After the
start of the trial, the Government publicly announced that it was in possession of “irrefutable
recordings” as evidence against the accused, in violation of the principles of non-interference
in judicial affairs by the executive branch and of the presumption of innocence. Furthermore,
the defence was not given the opportunity to see or contest these documents because they
were not submitted as evidence in the criminal case.
16.
The source adds that, despite State Security Court verdicts being final, Mr. Tourqui
would like to lodge an appeal on points of law with the Supreme Court. Indeed, article 706-
2 of the Code of Criminal Procedure establishes that orders of the State Security Court “are
not appealable, except through a cassation procedure that does not have suspensive effect”.
However, his counsel has so far been unable to lodge such an appeal because the procedure
requires a written copy of the judgment published by the issuing body. Yet, there is no written
version of the oral judgment handed down by the State Security Court, in breach of its own
procedural rules, specifically article 701 of the Code of Criminal Procedure, which provides
that “the ban on reproducing proceedings in connection with serious and minor offences does
not extend to the publication of the sentence or judgment pronounced.”
17.
The source notes that Mr. Tourqui was released on 10 August 2019 pursuant to the
promulgation of Presidential Decree No. 19-094/PR on presidential pardons. However, Mr.
Tourqui has yet to receive any form of reparation for the damage sustained during his arrest,
pretrial detention, trial and imprisonment.
18.
According to the source, throughout his detention, Mr. Tourqui’s relatives had to bring
him medicines and food to compensate for shortcomings in the Comorian prison system. His
health deteriorated considerably while in pretrial detention.
19.
The source adds that Presidential Decree No. 19-094/PR does not provide for public
apologies or acknowledgment of the facts.
c.
Legal analysis
20.
The source maintains that Mr. Tourqui’s deprivation of liberty was arbitrary under
categories I, II, III and V of the Working Group’s methods of work.
i.
Category I
21.
The source submits from the outset that there is nothing in the circumstances
surrounding Mr. Tourqui’s arrest to establish that a flagrant offence, within the meaning of
article 53 of the Code of Criminal Procedure, was committed. Indeed, nothing raised in the
flagrante delicto procedure shows that Mr. Tourqui was committing an unlawful act at the
time of his arrest or had committed one shortly before. The acts that the authorities allege he
committed took place during the referendum, in other words 10 days before the date of the
flagrante delicto procedure.
22.
The source further submits that, even if a case for a flagrante delicto procedure had
been made, article 54 of the Code of Criminal Procedure, which provides for the involvement
of the public prosecutor, was not respected. There is nothing to indicate that the public
prosecutor was informed of the supposed flagrant offence or attended the scene to establish
the facts of the case, as provided for in the Code of Criminal Procedure.
23.
Consequently, the source is of the view that, as the flagrante delicto procedure was
not legally justified and the right to be brought before a judicial authority was not respected,
Mr. Tourqui’s deprivation of liberty was in breach of articles 2 and 6 of the African Charter
on Human and Peoples’ Rights and articles 2 and 9 of the Universal Declaration of Human
Rights.
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24.
In addition, the source maintains that Mr. Tourqui was taken directly to gendarmerie
headquarters, where he remained in custody for five days, and that it was not until the fifth
day that he was brought before the public prosecutor, without his lawyer present, to hear the
charges against him prior to being brought before the investigating judge. Therefore, the
source is of the view that the right to be brought promptly before a judicial authority, in line
with principles 4, 11 and 36 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment and with Human Rights Committee general
comment No. 35 (2014), was not respected.
25.
Furthermore, the source notes that Mr. Tourqui was not given the opportunity to
challenge the lawfulness of his arrest and detention and was deprived of his right to counsel
for this period, which is a violation of his right of habeas corpus.
26.
In the light of the above, the source contends that the detention of Mr. Tourqui was
arbitrary under category I of the criteria applicable to cases submitted to the Working Group.
ii.
Category II
27.
According to the source, the acts that Mr. Tourqui was charged with and convicted of
are directly linked to the fact that he publicly and peacefully expressed his disagreement with
the draft constitutional amendment of 2018 and to his membership in a political opposition
movement.
28.
Furthermore, the source maintains that the criminal proceedings against Mr. Tourqui
before the State Security Court, a special court competent to hear “political” offences, are a
direct consequence of his public stance against the Government.
29.
The source notes that the Government considers Mr. Tourqui a political opponent, as
evident in the public statements by representatives of the executive branch that he was behind
the placards criticizing the State and that the placards were irrefutable evidence against him.
In addition, the pre-referendum campaign was conducted amid tensions and efforts to
intimidate the opposition. A few days before the referendum, the Minister of the Interior
stated at a meeting to promote the constitutional amendment that opposition leaders would
be “hunted down”. The source recalls in this regard that Mr. Tourqui was tried as part of a
group of defendants considered to be the most active figures of the political opposition.
30.
The source points out that the act of which Mr. Tourqui was accused was his public
stance against the Government, expressed orally and in writing. More specifically, he was
accused of having taken part in a peaceful demonstration at which he was carrying placards
with a message critical of the Government. Yet, his statements constitute, by nature,
participation in the government of his country, directly or through freely chosen
representatives.
31.
In the light of the foregoing, the source considers that Mr. Tourqui was arbitrarily
deprived of his right to freedom of expression and opinion, in violation of article 19 of the
Universal Declaration of Human Rights and article 9 of the African Charter on Human and
Peoples’ Rights, and of his right to freedom of peaceful assembly and to take part in the
government of his country under articles 20 and 21 of the Universal Declaration of Human
Rights, thereby constituting a violation under category II.
iii.
Category III
32.
The source is of the opinion that the criminal proceedings against Mr. Tourqui, from
the time of his arrest to his conviction, were marred by violations of the right to fair
proceedings.
33.
The source notes that Mr. Tourqui did not benefit from the services of a lawyer while
he was in police custody or when he was brought before the prosecutor and the investigating
judge. He was able to see a lawyer only once he had been remanded in pretrial detention.
Furthermore, Mr. Tourqui could not exercise his right to a defence during his trial. The source
claims that Mr. Tourqui was prevented from enjoying his rights to procedural safeguards and
to a defence, in breach of article 7 (1) (c) of the African Charter on Human and Peoples’
Rights, principle 18 of the Body of Principles for the Protection of All Persons under Any
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Form of Detention or Imprisonment and Human Rights Committee general comment No. 32
(2007).
34.
In addition, the source recalls that the right of accused persons to be informed of the
charges against them is a necessary precondition for due process. However, Mr. Tourqui was
not informed of the reasons for his arrest until he was brought before the investigating judge,
in other words on the fifth day of his police custody. Therefore, the authorities violated
articles 6 and 7 of the African Charter on Human and Peoples’ Rights, article 9 of the
Universal Declaration of Human Rights and rule 119 of the United Nations Standard
Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
35.
The source is of the view that the right to be tried by a competent court was violated
in view of the unconstitutional nature of the State Security Court. Indeed, Organic Act No.
05-016/AU of 20 December 2005 on the organization of the judicial system of the Union of
the Comoros and the Islands enumerates the courts that are competent to administer justice
in the territory, and the above-mentioned court is not among them. In keeping with the
principle of the hierarchy of laws within legal systems, a law such as this takes precedence
over an ordinary law such as the one establishing the State Security Court. Accordingly, Act
No. 81-005/PR of 1981, which is an ordinary law, would have been implicitly repealed by
the Organic Act of 2005. Moreover, the State Security Court, being a special court, cannot
be presumed to legally exist. The State Security Court is mentioned only in the Code of
Criminal Procedure, whose article 698 defines the Court’s jurisdiction as covering offences
committed in peacetime “against State security”, which would call into question the Court’s
constitutionality and, therefore, the legitimacy of its legal basis.
36.
The source considers therefore that the State Security Court, since it was implicitly
repealed by article 1 of Organic Act No. 05-016/AU, does not have a basis in the law to
justify its legal existence within the meaning of article 7 of the African Charter on Human
and Peoples’ Rights, article 8 of the Universal Declaration of Human Rights and Human
Rights Committee general comment No. 35 (2014).
37.
Thus, according to the source, the very existence of the State Security Court
constitutes a violation of article 7 of the African Charter on Human and Peoples’ Rights and
article 10 of the Universal Declaration of Human Rights.
38.
Beyond the question of the State Security Court’s lawfulness, the source maintains
that the Court does not meet the requirements of impartiality and independence.
39.
Concerning its impartiality, the source notes that the Court was established by
presidential decree to adjudicate cases of offences against the security of the State. The
Court’s composition is defined in Act No. 81-005/PR and includes a presiding judge, civil
judges and a commissioner, assisted by a deputy, serving as the prosecution who are
appointed by the Government to adjudicate cases of offences against the security of the State.
Given these two points, the source is of the opinion that the Court cannot be considered
impartial.
40.
The source then recalls that, according to the report of the Working Group on the use
of mercenaries as a means of violating human rights and impeding the exercise of the right
of peoples to self-determination, the judiciary lacks independence from the executive.2
41.
Lastly, the source is of the opinion that the executive’s interference in judicial affairs,
when it comes to the “irrefutable recordings” submitted as evidence, calls into question the
independence and impartiality of the State Security Court.
42.
The source therefore considers that the State Security Court violated article 28 of the
Constitution, article 7 of the African Charter on Human and Peoples’ Rights and article 10
of the Universal Declaration of Human Rights.
43.
The source notes that Mr. Tourqui was convicted following a hasty two-day trial in
which the defence did not have an opportunity to review the evidence, leading the lawyers to
boycott the hearings in protest.
2 A/HRC/27/50/Add.1, paras. 58 and 73 (e).
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44.
Given the above, the source contends that the adversarial principle was undermined
and that the State Security Court violated article 7 of the African Charter on Human and
Peoples’ Rights and article 11 of the Universal Declaration of Human Rights inasmuch as
Mr. Tourqui was not given the opportunity to defend himself against the charges, in particular
those connected to his alleged instigation of the banners with messages opposed to the
constitutional amendment.
45.
The source also notes that the decisions of the State Security Court cannot be
appealed, in violation of article 8 of the Universal Declaration of Human Rights.
46.
According to the source, by establishing the State Security Court as a court of first
and last instance and by denying the defence access to the incriminatory evidence and the
right to challenge it, the Government violated the right to an effective remedy, a peremptory
norm of international law.
47.
The source further notes that, on 15 December 2018, the State Security Court
sentenced Mr. Tourqui to life imprisonment after a hasty two-day trial. The speed of the
proceedings and the nature of the sentence cannot, in the source’s view, be considered
necessary or proportionate.
48.
Consequently, neither the choice of the State Security Court to hear the case against
Mr. Tourqui nor the nature of the sentence can be considered to satisfy the criteria of legality,
necessity or proportionality that should apply to any measure of deprivation of liberty.
49.
For these reasons, the source concludes that the detention of Mr. Tourqui is arbitrary
under category III.
iv.
Category V
50.
According to the source, Mr. Tourqui’s arrest was part of a “campaign to arrest”
members of the opposition – to which he was considered to belong for repeatedly criticizing
the draft constitutional amendment – that had been publicly announced by the Minister of the
Interior a few days before. This claim is strengthened by the fact that seven other people were
arrested at around the same time and that, according to the opposition parties, these arrests
were all linked to the referendum on 30 July 2018.
51.
The source thus argues that Mr. Tourqui was prosecuted by the State Security Court
because of his status as an opposition member. Similarly, all of the due process violations
described above stem directly from his stance as an opponent. Indeed, the official statements
referring to the “hunt” for political opponents, the public reference to irrefutable evidence
and the executive’s control over the State Security Court all illustrate that Mr. Tourqui’s
status as a political opponent is the reason for his unequal treatment before the law.
52.
Lastly, the nature of his sentence, namely life imprisonment, handed down by the
State Security Court on 15 December 2018 following a hasty two-day trial also stems from
his status as a political opponent and is quite clearly a particularly grievous form of
retaliation.
53.
For these reasons, the source concludes that the detention of Mr. Tourqui is arbitrary
under category V.
Response from the Government
54.
On 9 March 2021, the Working Group transmitted to the Government a
communication concerning Mr. Tourqui in which it requested detailed information about him
by 10 May 2021. Specifically, the Working Group requested the Government to clarify the
legal provisions justifying Mr. Tourqui’s detention and their compatibility with the
obligations of the Comoros under international human rights law.
55.
The Working Group regrets that it did not receive a response from the Government to
this communication and that the Government did not request an extension of the time limit
for its reply, as provided for in the Working Group’s methods of work.
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Discussion
56.
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.
57.
From the outset, the Working Group wishes to underline the fact that it welcomes Mr.
Tourqui’s release on 10 August 2019 pursuant to the promulgation of a presidential decree.
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 this case, Mr. Tourqui has not
received any form of reparation for the damage incurred during his arrest, pretrial detention,
trial and imprisonment. In these circumstances, the Working Group will render an opinion.
58.
In determining whether the detention of Mr. Tourqui was 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.3 In the present case, the
Government has chosen not to challenge the prima facie credible allegations made by the
source.
59.
The source alleges that Mr. Tourqui’s detention from 9 August 2018 to 10 August
2019 was arbitrary under categories I, II, III and V. The Working Group proceeds to consider
each of the source’s claims in turn.
Category I
60.
The source alleges that Mr. Tourqui was arrested at his home on 9 August 2018 by
uniformed gendarmes. The officers took Mr. Tourqui into custody pursuant to a procedure
allowing for arrest in flagrante delicto, which does not require the presentation of an arrest
or search warrant. According to the source, there is no indication that the public prosecutor
was informed that the offence was flagrant, nor that the public prosecutor complied with the
Code of Criminal Procedure by attending the scene to establish the facts of the case. The
source further alleges that Mr. Tourqui was not informed of the reasons for his arrest until he
was brought before the investigating judge on the fifth day of his police custody. The
Government did not submit any information or explanation in response to these allegations.
61.
In its jurisprudence, the Working Group has consistently found that an offence is
flagrant if the accused is apprehended either during the commission of a crime or immediately
thereafter, or is arrested in hot pursuit shortly after a crime has been committed.4 While the
Working Group takes note that Mr. Tourqui was accused of having participated in a
demonstration during which he carried banners that criticized the authorities, it is not
convinced that he was arrested in flagrante delicto. As the source points out, and the
Government has not rebutted, the offences allegedly committed by Mr. Tourqui took place
on the date of the referendum, 30 July 2018, or 10 days before his arrest on 9 August 2018.
Accordingly, the Working Group considers that the authorities did not demonstrate a legal
basis for the arrest of Mr. Tourqui in flagrante delicto and that an arrest warrant should
therefore have been presented to him at the time of his arrest.
62.
As the Working Group has stated, it is not sufficient that there be a law that authorizes
an arrest. The authorities must invoke that legal basis and apply it through an arrest warrant.5
In the present case, the arresting officers did not present an arrest warrant at the time of
arrest,6 in violation of articles 3 and 9 of the Universal Declaration of Human Rights.7 As a
3 A/HRC/19/57, para. 68.
4 Opinion No. 9/2018, para. 38 (citing the Working Group’s prior jurisprudence on this point).
5 Opinion No. 46/2019, para. 51; No. 46/2018, para. 48; No. 36/2018, para. 40; and No. 10/2018, para.
45.
6 Opinion No. 71/2019, para. 70; and No. 45/2019, para. 50.
7 Opinion No. 65/2020, para. 75; No. 37/2020, para. 52; No. 33/2020, para. 54; No. 31/2020, para. 41;
No. 82/2018, para. 29; No. 68/2018, para. 39; No. 30/2018, para. 39; No. 26/2018, para. 54; No.
10/2018, para. 46; and No. 3/2018, para. 43 (presentation of an arrest warrant is procedurally inherent
in articles 3 and 9 of the Universal Declaration of Human Rights).
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result, the authorities did not establish a legal basis for the arrest of Mr. Tourqui. Furthermore,
the Government has not rebutted the source’s assertion that the officers arrested Mr. Tourqui
without informing him of the reasons for his arrest. In order to invoke a legal basis for the
deprivation of liberty, the authorities should have informed Mr. Tourqui of the reasons for
his arrest when he was arrested.8 Their failure to fulfil that obligation constituted a violation
of article 9 of the Universal Declaration of Human Rights and principle 10 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
rendering Mr. Tourqui’s arrest and detention arbitrary.
63.
In addition, the source claims that, during Mr. Tourqui’s arrest, the officers searched
his home without a search warrant and seized several items of property, including a computer
and a USB key. The officers also found a hunting rifle and an automatic pistol at his home.
The Government has not responded to this allegation. In its jurisprudence, the Working
Group has established that detention is arbitrary when evidence obtained without a search
warrant is used in judicial proceedings.9 In the present case, it is not clear whether the seized
evidence was used against Mr. Tourqui at trial. However, the fact that the authorities searched
Mr. Tourqui’s home without a search warrant, in circumstances that did not support the use
of the flagrante delicto procedure, strengthens the Working Group’s conclusion that the
authorities did not follow the necessary investigative procedures to ensure that the arrest had
a legal basis.
64.
Furthermore, following his arrest on 9 August 2018, Mr. Tourqui was taken directly
to the headquarters of the gendarmerie where he remained in custody for five days. According
to the source, Mr. Tourqui was brought before the prosecutor on 14 August 2018 to hear the
charges against him, before being presented the same day to the investigating judge. The
Government did not rebut this allegation and, in particular, did not present any justification
for the five-day delay in bringing Mr. Tourqui before a judicial authority. As the Working
Group has confirmed in its jurisprudence, a person arrested and detained must be brought
promptly before a judge, that is, within 48 hours of arrest, and any delay beyond that must be
absolutely exceptional and justified under the circumstances.10 Oversight of detention must
be conducted by a judge, not a prosecutorial body.11 The Working Group observes that Mr.
Tourqui was not afforded the right to be brought promptly before a judicial authority in order
to challenge the legal basis of his detention, contrary to article 9 of the Universal Declaration
of Human Rights and principles 4, 11 and 37 of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment.
65.
The Working Group further observes that during his five days in police custody, Mr.
Tourqui was not afforded the right to apply to a court so that it might decide without delay
on the lawfulness of his detention in accordance with articles 3 and 9 of the Universal
Declaration of Human Rights and principle 32 of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment. The right to challenge the
lawfulness of detention before a court is a self-standing human right, the absence of which in
itself constitutes a human rights violation.12 Judicial oversight of detention is a fundamental
safeguard of personal liberty and is essential in ensuring that detention has a legal basis.13
According to the source, Mr. Tourqui did not have access to his lawyer while he was in police
custody or during his presentation before the prosecutor and the investigating judge. He was
therefore deprived of a fundamental safeguard through which he could have challenged the
legal basis of his detention.14 Given that Mr. Tourqui was unable to challenge the lawfulness
8 Opinion No. 65/2020, para. 75; No. 33/2020, para. 55; No. 31/2020, para. 42; No. 83/2019, para. 50;
No. 46/2019, para. 51; No. 32/2019, para. 29; and No. 10/2015, para. 34.
9 Opinion No. 83/2019, para. 51. See also opinion No. 33/2019, No. 31/2019, No. 83/2018, No.
78/2018 and No. 36/2018.
10 Opinion No. 76/2019, para. 38; No. 56/2019, para. 80; No. 36/2019, para. 36; No. 26/2019, para. 89;
and No. 20/2019, para. 66. See also A/HRC/43/49/Add.1, para. 112 (b).
11 Opinion No. 65/2020, para. 76; No. 33/2020, para. 75; and No. 32/2020, para. 44.
12 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), para. 2.
13 Ibid., para. 3.
14 Opinion No. 61/2020, para. 70; and No. 40/2020, para. 29. See also A/HRC/43/49/Add.1, para. 112
(c).
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of his detention, his right to an effective remedy under article 8 of the Universal Declaration
of Human Rights was also violated.
66.
For these reasons, the Working Group finds that the Government failed to establish a
legal basis for Mr. Tourqui’s detention and that his detention was therefore arbitrary under
category I.
Category II
67.
The source alleges that the prosecution of Mr. Tourqui was directly linked to his
peaceful oral and written criticism of the constitutional reform in 2018 and to his membership
in a political opposition movement. In particular, Mr. Tourqui was accused of having
participated in a peaceful demonstration during which he carried banners expressing criticism
of the Government. According to the source, one of the banners called on the military to
guarantee “republican legality”. Mr. Tourqui was charged with offences under articles 71,
72, 80 and 81 of the Criminal Code relating to attacks, conspiracies and other offences against
the authority of the State and the integrity of the national territory and to crimes against the
State. On 15 December 2018, he was sentenced by the State Security Court to life
imprisonment. The Court convicted seven other individuals in the same case.
68.
According to the source, the prosecution of Mr. Tourqui violated his right to freedom
of opinion and expression, right to peaceful assembly and right to take part in the government
of his country under articles 19, 20 and 21 of the Universal Declaration of Human Rights.
The source notes that Mr. Tourqui was tried before the State Security Court, which is a special
tribunal established to rule on political crimes. The source argues that this demonstrates that
the proceedings were a direct consequence of Mr. Tourqui’s public stance against the
Government. Moreover, the source alleges that Mr. Tourqui is considered a political
opponent by the Government, which is apparent from public statements made by
representatives of the executive affirming that he was responsible for the banners expressing
criticism of the authorities. A few days before the referendum, the Minister of the Interior
stated at a meeting to promote the constitutional amendment that opposition leaders would
be “hunted down”. The source also recalls that Mr. Tourqui was tried together with other
people considered to be the most active figures of the political opposition.
69.
Article 19 of the Universal Declaration of Human Rights provides that: “Everyone
has the right to freedom of opinion and expression; this right includes freedom to hold
opinions without interference and to seek, receive and impart information and ideas through
any media and regardless of frontiers.” The Working Group considers that Mr. Tourqui’s
conduct fell within the right to freedom of opinion and expression, which protects the holding
and expression of views, including those that are critical of, or not in line with, government
policy.15 Notably, the Government provided no alternative explanation of the charges brought
against Mr. Tourqui or of his sentence to life imprisonment.
70.
Furthermore, the Working Group takes note that Mr. Tourqui was detained as a result
of having participated in a peaceful demonstration relating to the constitutional referendum
in the Comoros in July 2018, during which he allegedly carried banners expressing criticism
of the Government. The Working Group considers that Mr. Tourqui was detained for
exercising his rights to peaceful assembly and to take part in the government of his country
under articles 20 (1) and 21 (1) of the Universal Declaration of Human Rights.
71.
There is nothing to suggest that the permissible limitations set out in article 29 (2) of
the Universal Declaration of Human Rights would affect the findings in the present case. In
particular, the Government has not presented any reasons that might have legitimized
restrictions on Mr. Tourqui’s rights. The Working Group is not convinced that prosecuting
Mr. Tourqui was necessary to protect a legitimate interest under this provision, nor that a
sentence of life imprisonment was a proportionate response to his criticism of the authorities.
Importantly, while the constitutional referendum took place in an atmosphere of tension,
intimidation and unrest, there is no evidence to suggest that Mr. Tourqui called for or was
15 Opinion No. 16/2020, para. 68; No. 15/2020, para. 65; No. 8/2019, para. 55; No. 79/2017, para. 55.
See also A/HRC/41/12, paras. 118.66, 118.89 and 118.91; and A/HRC/43/49/Add.1, paras. 19–21,
111 (f) and 113 (d).
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involved in violence or could reasonably be considered to have threatened the rights and
freedoms of others, morality, public order or the general welfare in a democratic society.
72.
The Working Group concludes that Mr. Tourqui’s detention resulted from the
peaceful exercise of his rights.16 His detention was arbitrary under category II. 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 rights to
freedom of peaceful assembly and of association.
Category III
73.
Given its finding that Mr. Tourqui’s detention is arbitrary under category II, the
Working Group emphasizes that no trial should have taken place. However, Mr. Tourqui was
tried and sentenced on 15 December 2018 to life imprisonment. Although he was
subsequently released by presidential decree, the Working Group considers that the
information submitted by the source discloses violations of his right to a fair trial. In
considering the source’s arguments, the Working Group has taken into account that the
Government did not respond to any of the allegations.
74.
The source alleges that Mr. Tourqui was not able to have access to legal advice during
the period when he was held in police custody from 9 to 14 August 2018. During this time,
he was questioned without his lawyer present. He was also unable to consult his lawyer
during his presentation before the prosecutor and the investigating judge on 14 August 2018.
According to the source, it was only after Mr. Tourqui had been placed in pretrial detention
that he was able to meet with a lawyer.
75.
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
apprehension, and such access must be provided without delay.17 The failure to provide Mr.
Tourqui with access to his lawyer from the outset of his deprivation of liberty seriously
impaired his ability to prepare a defence, in violation of the principle of equality of arms
under articles 10 and 11 (1) of the Universal Declaration of Human Rights and principles 11
(1), 15, 17 and 18 of the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment. The fact that Mr. Tourqui was facing serious charges that
resulted in a life sentence made this violation of due process all the more serious.
76.
In addition, the source claims that the adversarial principle was not respected in Mr.
Tourqui’s case. According to the source, Mr. Tourqui did not have the opportunity to defend
himself in relation to evidence presented against him, particularly banners that he had
allegedly written criticizing the constitutional reform. Following the opening of the trial, the
Government publicly announced that it was in possession of “irrefutable recordings” as
evidence, but the defence was not able to hear or challenge this evidence as it was not
included as an exhibit in the file. The defence lawyers boycotted some of the hearings in
protest at not being able to defend the case.
77.
Every person deprived of liberty has the right to have access to material related to
their detention, including information that may assist him or her in arguing that the detention
is not lawful or that the reasons for the detention no longer apply.18 However, that right is not
absolute and the disclosure of information may be restricted if such a restriction is necessary
and proportionate in pursuing a legitimate aim, such as protecting national security, and if
the State has demonstrated that less restrictive measures, such as providing redacted
summaries that clearly point to the factual basis for the detention, would not achieve the same
result.19 In the present case, the Government did not provide an explanation of the nature of
the “irrefutable” evidence against Mr. Tourqui, nor any justification as to why Mr. Tourqui
could not be provided with access to this evidence. The failure to provide full access to the
16 Opinion No. 65/2018, para. 26 (in which the Working Group reached a similar conclusion in a
previous case concerning the Comoros).
17 A/HRC/30/37, annex, principle 9 and guideline 8. See also A/HRC/43/49/Add.1, para. 112 (b) and
A/HRC/45/16, para. 51.
18 A/HRC/30/37, annex, principle 12 and guidelines 11 and 13.
19 Ibid., guideline 13, paras. 80–81.
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11
evidence violated Mr. Tourqui’s right to a fair trial, equality of arms and an adversarial
process under articles 10 and 11 (1) of the Universal Declaration of Human Rights.20
78.
Moreover, in the view of the Working Group, the Government’s public announcement
following the opening of the trial that there was “irrefutable” evidence against Mr. Tourqui
implied that no finding, other than his guilt, could be made. Whether Mr. Tourqui was guilty
of the alleged offences beyond a reasonable doubt was a matter to be determined by a judicial
authority at the conclusion of the trial after consideration of all the evidence. It is the duty of
all public authorities to refrain from making public statements affirming the guilt of the
accused.21 Accordingly, the Working Group considers that this announcement undermined
Mr. Tourqui’s right to the presumption of innocence under article 11 (1) of the Universal
Declaration of Human Rights and principle 36 of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment.
79.
The source further alleges that on 15 December 2018, the State Security Court
convicted and sentenced Mr. Tourqui after a trial that lasted two days. As noted earlier, the
Court also convicted seven other persons in the same case. This was an expeditious hearing
for a matter involving multiple defendants and serious alleged offences against the State,
which resulted in Mr. Tourqui being sentenced to a heavy penalty of life imprisonment. As
the Working Group has stated, a short trial for a serious criminal offence suggests that the
defendant’s guilt had been determined prior to the proceedings. 22 In the absence of an
alternative explanation from the Government, the brief duration of the trial in this case,
together with the lack of access to the evidence, strengthens the Working Group’s conclusion
that Mr. Tourqui was denied the right to the presumption of innocence and due process.
80.
Furthermore, the source claims that the State Security Court does not meet
international requirements for an independent and impartial court. The Court is a special court
established by presidential decree to adjudicate offences that undermine national security. It
is composed of a presiding judge, civil judges and a commissioner, assisted by a deputy,
serving as the prosecution who are appointed by the Government. The source asserts that, for
this reason, the Court cannot be considered to be independent from the executive branch.
Moreover, verdicts handed down by the Court are final and cannot be appealed. It is therefore
a court of first and last instance. The Government did not submit any information or
explanation in response to these allegations.
81.
In considering the source’s allegations, the Working Group has taken note of the
findings of other special procedures mandate holders and human rights mechanisms. For
example, during its mission to the Comoros in May 2014, the Working Group on the use of
mercenaries as a means of violating human rights and impeding the exercise of the right of
peoples to self-determination stated that:
[It] is concerned that persons suspected of participating in coups d’état or attempts to
overthrow the Government are tried by a special court, established during the
mercenary period, and that those convicted cannot appeal the court’s decisions on the
merits. It emphasizes that the right of a convicted person to appeal a conviction
remains a fundamental right and encourages the Comorian Government to consider
abolishing that special court and to declare ordinary criminal courts competent to try
cases connected to State security.23
82.
During the most recent universal periodic review of the Comoros in January 2019, the
recommendations included the need to identify alternatives to the State Security Court.24 The
20 Opinion No. 78/2018, paras. 78–79; No. 18/2018, para. 53; No. 89/2017, para. 56; No. 50/2014, para.
77; and 19/2005, para. 28 (b).
21 Opinion No. 86/2018, para. 56.
22 Opinion No. 15/2020, para. 78. See also opinion No. 45/2019, No. 44/2019, No. 46/2018, No.
45/2018, No. 36/2018 and No. 75/2017.
23 A/HRC/27/50/Add.1, para. 58. See also ibid., para. 73 (e), in which the Working Group on the use of
mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to
self-determination urges the Government to abolish the State Security Court in order to safeguard
both the independence of the judiciary and access to effective justice.
24 A/HRC/41/12, para. 118.78.
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Government noted during the review that it had initiated discussions to bring the operations
of the State Security Court into compliance with international standards or to abolish it.25
83.
In the light of these findings, the Working Group considers that the State Security
Court does not meet the standards of independence and impartiality required under
international human rights law. The Working Group takes this opportunity to reiterate calls
for the abolition of this court and for matters involving national security to be tried before
the ordinary criminal courts. In the present case, Mr. Tourqui was not afforded his right to a
fair hearing by an independent and impartial tribunal, in violation of articles 10 and 11 (1) of
the Universal Declaration of Human Rights and principle 4 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment. The Working
Group refers the present case to the Special Rapporteur on the independence of judges and
lawyers.
84.
In addition, the Working Group considers the review of a conviction and sentence by
a higher court to be a fundamental element of the right to a fair trial.26 The absence of the
right to appeal on the merits a conviction or sentence handed down by the State Security
Court had the effect of depriving Mr. Tourqui of his right to an effective remedy under articles
8, 10 and 11 (1) of the Universal Declaration of Human Rights.27
85.
Finally, the source alleges that, notwithstanding the fact that the verdict of the State
Security Court was final, Mr. Tourqui sought to bring an appeal in cassation to the Supreme
Court. According to the source, Mr. Tourqui’s legal counsel was unable to bring such an
appeal because the verdict of the State Security Court was delivered orally and there was no
written copy of the judgment. The Working Group recalls that a convicted person has the
right to receive a duly reasoned, written judgment from the trial court. The failure to provide
such a judgment amounted to a further denial of Mr. Tourqui’s right to an effective remedy.28
86.
The Working Group has taken note of arguments made by the source in relation to the
constitutionality of the law establishing the State Supreme Court and its status under national
law. While the Working Group determines whether deprivation of liberty is in conformity
with applicable international standards, it has consistently refrained from taking the place of
a country’s judicial authorities in considering the scope and application of national laws.29
87.
The Working Group concludes that the violations of the right to a fair trial were of
such gravity as to give the detention of Mr. Tourqui an arbitrary character under category III.
Category V
88.
The source claims that Mr. Tourqui’s arrest and detention was part of a broader
campaign to silence political opponents. The source notes that Mr. Tourqui was arrested in
the context of the trial of seven other individuals who were linked to parties that opposed the
referendum process. According to the source, the statement made by the Minister of the
Interior that leaders of the opposition would be “hunted down”, the public reference to
“irrefutable” evidence and the executive’s control over the State Security Court demonstrate
that the status of Mr. Tourqui as a political opponent was the reason for his unequal treatment
before the law. Moreover, the imposition of a sentence of life imprisonment after a trial
lasting two days was a serious form of retaliation against Mr. Tourqui for his political views.
89.
The Working Group has already established that the arrest and detention of Mr.
Tourqui resulted from the peaceful exercise of his rights under international law and fell
under category II. In such circumstances, there is a strong presumption that the detention also
constituted a violation of international law on the grounds of discrimination based on political
25 Ibid., para. 69.
26 See opinions No. 65/2020 and No. 27/2019.
27 Opinion No. 61/2020, para. 90; No. 31/2020, para. 61; No. 55/2019, para. 41; No. 21/2017, para. 54;
No. 60/2013, para. 23; and No. 34/2011, para. 11.
28 Opinion No. 46/2020, para. 61; No. 83/2019, para. 76; No. 27/2019, paras. 78–79; and No. 14/2017,
para. 55.
29 Opinion No. 46/2020, para. 62; No. 1/2020, para. 51; No. 64/2019, para. 89; No. 49/2019, para. 58;
No. 63/2017, para. 45; No. 59/2016, para. 60; No. 12/2007, para. 18; No. 40/2005, para. 22; and No.
10/2002, para. 18.
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13
or other views.30 The Government did not provide any information to rebut this presumption,
or to address the source’s allegations that Mr. Tourqui was targeted as a political opponent.
90.
The Working Group considers that Mr. Tourqui was deprived of his liberty on
discriminatory grounds, namely, his political or other opinion, contrary to articles 2 and 7 of
the Universal Declaration of Human Rights. His detention was thus arbitrary under category
V.
Concluding remarks
91.
The Working Group takes note of the source’s submission that the conditions of Mr.
Tourqui’s police custody, including being held in a cramped cell without light and
ventilation, were unsuited to his state of health. His health deteriorated considerably during
his pretrial detention. Moreover, during Mr. Tourqui’s entire detention, from 9 August 2018
to 10 August 2019, his relatives had to provide him with medicines and food in order to make
up for the shortcomings of the prison system in the Comoros.
92.
The Working Group urges the Government to ensure that the conditions in all places
of deprivation of liberty throughout the Comoros meet international standards and are
compatible with human dignity. 31 These standards include the Nelson Mandela Rules,
particularly rules 12 to 27 and 111 to 118 relating to living conditions and health care for
pretrial and convicted detainees.
93.
The Working Group would welcome the opportunity to undertake a country visit to
the Comoros. In this context, the Working Group recalls that the Government issued a
standing invitation to all thematic special procedures mandate holders on 29 January 2019
and recalls the recommendation made by the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment that an invitation be extended to the Working
Group to conduct an official visit to the Comoros.32
Disposition
94.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Saïd Ahmed Saïd Tourqui, being in contravention of
articles 2, 7, 8, 9, 10, 11 (1), 19, 20 (1) and 21 (1) of the Universal Declaration of
Human Rights, is arbitrary and falls within categories I, II, III and V.
95.
The Working Group requests the Government of the Comoros to take the steps
necessary to remedy the situation of Mr. Tourqui without delay and bring it into conformity
with the relevant international norms, including those set out in the Universal Declaration of
Human Rights. The Working Group also urges the Government to accede to the Covenant.
96.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to accord Mr. Tourqui an enforceable right to
compensation and other reparations, in accordance with international law.33
97.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Tourqui and to take appropriate measures against those responsible for the violation of his
rights.
98.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the rights to freedom of peaceful assembly and
of association, Special Rapporteur on the rights to freedom of peaceful assembly and of
30 See opinions No. 4/2021, No. 59/2019, No. 13/2018 and No. 88/2017.
31 A/HRC/43/49/Add.1, paras. 63–92, 115 and 116.
32 Ibid., para. 121 (b). See also A/HRC/41/12, para. 121 (which stated that, following the universal
periodic review, the Government of the Comoros undertook to receive all special procedures mandate
holders).
33 See the Working Group’s deliberation No. 10 (A/HRC/45/16, annex I), which specified the forms of
reparation available for arbitrary detention, including examples of restitution, rehabilitation,
satisfaction, compensation and guarantees of non-repetition.
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association and the Special Rapporteur on the independence of judges and lawyers for
appropriate action.
99.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
100.
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. Tourqui;
(b)
Whether an investigation has been conducted into the violation of Mr.
Tourqui’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 the Comoros with its international obligations in line
with the present opinion;
(d)
Whether any other action has been taken to implement the present opinion.
101.
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.
102.
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.
103.
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.34
[Adopted on 6 September 2021]
34 Human Rights Council resolution 42/22, paras. 3 and 7.