Opinion; Subjects: LIBYA, 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.22-06437(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-second session, 15–19 November 2021
Opinion No. 62/2021 concerning Abdelhakim Imbarak Muhammad Ali
and Sulaiman Muhammad Salim Sulaiman (Libya)
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 13 August 2021, the Working Group
transmitted to the Government of Libya a communication concerning Abdelhakim Imbarak
Muhammad Ali and Sulaiman Muhammad Salim Sulaiman. The Government has not replied
to the communication. The State is a party to the International Covenant on Civil and Political
Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/62
General Assembly
Distr.: General
29 April 2022
Original: English
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2
Submissions
Communication from the source
4.
Abdelhakim Imbarak Muhammad Ali, born in 1971, is a Libyan passport holder,
residing in Tripoli.
5.
Sulaiman Muhammad Salim Sulaiman, born in 1988, is also a Libyan passport holder,
residing in the south-west region of Libya.
a.
Context
6.
The source reports that Special Deterrence Force, a Salafist militia led by Abdel Raouf
Kara, is the main security force in Tripoli. The Special Deterrence Force is nominally under
the authority of the Ministry of Interior but in fact acts autonomously. This militia, which
controls many locations, including Mitiga international airport, is beyond the control of any
judicial authority. Its members arbitrarily detain hundreds of people in a detention facility
they control at Mitiga international airport (west of Tripoli).
7.
According to the source, there have been numerous reports of human rights violations
committed with impunity by militias, including the Special Deterrence Force. The source
further explains that Mr. Ali and Mr. Sulaiman are among those Libyans who have been
victims of abuses by Libyan militias. The source notes with concern the situation in Libya
and underlines the importance of putting these militias under government supervision and
efficient judiciary control.
b.
Arrest and detention of Mr. Ali
8.
The source reports that, on 16 October 2016 at 10 p.m., Mr. Ali was in the street in
Ayn Zarah when he was abducted by members of the Special Deterrence Force, who, masked
and wearing both civilian and military clothes, proceeded to arrest him without showing a
warrant and without providing reasons for the arrest. They surrounded Mr. Ali and beat him
while forcing him into one of their vehicles.
9.
The source submits that, following the abduction, Mr. Ali’s relatives went to inquire
about his fate and learned from an informal source that he was being held at the Mitiga
detention facility, located at Mitiga international airport, known to be under the control of
the Special Deterrence Force.
10.
The source highlights that, in an official letter dated 25 October 2016, the Attorney
General requested that Mr. Ali be brought before him for investigation or released from
prison. However, five years later, he still has not been brought before a judicial authority. He
is still being held in the Mitiga detention facility, where no visit in person is allowed. His
relative has been able to interact with him only a few times through a screen.
11.
The source highlights that Mr. Ali and his family still do not know the official charges
behind his arrest. Nonetheless, Mr. Ali was reportedly interrogated about his trip to Gaza
during the blockade while he was working on a humanitarian mission. The source submits
that there has been no further clarification regarding the case.
c.
Arrest and detention of Mr. Sulaiman
12.
The source submits that Mr. Sulaiman was arrested on 16 May 2016 by the Special
Deterrence Force at his shop located in Khallat al-Furjan. Members of the Special Deterrence
Force reportedly arrived in several civilian vehicles, armed and with their faces masked. They
surrounded Mr. Sulaiman’s shop and beat him while forcing him into one of their vehicles.
The members of the Special Deterrence Force did not present a warrant nor did they inform
Mr. Sulaiman of the reasons for his arrest.
13.
According to the source, following Mr. Sulaiman’s arrest, the family was able to
discover from an informal source that Mr. Sulaiman was being held in the Mitiga detention
facility. The informal source also informed them that Mr. Sulaiman was accused of belonging
to a non-Salafist religious group.
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14.
According to the source, Mr. Sulaiman is still being held in the Mitiga detention
facility. Since his arrest, his family has been able to visit him only five times in five years
and for less than 10 minutes. Only two out of the five visits were face to face.
15.
The source submits that, after discovering that Mr. Sulaiman was in detention in the
Mitiga detention facility, his family did everything to seek clarification regarding his
situation. The family reached the Attorney General, who informed them that the Special
Deterrence Force had been asked to present Mr. Sulaiman for legal proceedings. However,
the Attorney General reportedly never received a response despite his requests. The source
submits that there has been no further clarification regarding the case.
d.
Analysis of violations
16.
The source argues that Mr. Ali and Mr. Sulaiman were arbitrarily arrested and
detained in violation of international legal standards and that their deprivation of liberty is
arbitrary, falling within categories I and III of the arbitrary detention categories referred to
by the Working Group when considering cases submitted to it. Furthermore, the source
contends that Mr. Sulaiman’s deprivation of liberty is arbitrary under category V.
i.
Category I
17.
The source submits that the detention of Mr. Ali and Mr. Sulaiman is arbitrary,
because both of them have been in detention for almost five years without being charged.
They were arrested without a warrant and no criminal charges have been brought against
them. Their arrests were not carried out in accordance with the principle of legality and have
no legal basis, contrary to article 9 (1) and (2) of the Covenant.
18.
The source explains that Mr. Ali and Mr. Sulaiman were arrested by the Special
Deterrence Force, affiliated with the Ministry of Interior and operating at the time with the
Government of National Accord. The Special Deterrence Force actually continues to operate,
in spite of the political change and the establishment of the new Government, without legal
basis or judicial oversight.
19.
The source submits that Mr. Ali and Mr. Sulaiman are being kept in detention without
any court order. They were deprived of their right to challenge the lawfulness of their
detention and guarantees set out in article 9 and article 2 (3) of the Covenant.
20.
The source notes that the Human Rights Committee has clarified that the universal
application of the right to challenge the lawfulness of detention before a court extends to all
situations of deprivation of liberty and that no category of detainee may be denied taking
such proceedings.2 The source further recalls that the prohibition of arbitrary deprivation of
liberty and the right of anyone deprived of his or her liberty to bring proceedings before a
court in order to challenge the lawfulness of the detention are non-derogable, under both
treaty law and customary international law.3
21.
The source further recalls that, according to the consistent jurisprudence of the Human
Rights Committee, persons deprived of their liberty should not be subjected to any hardship
or constraint other than that resulting from the deprivation of liberty and that they should be
treated with humanity and with respect for their dignity.
22.
The source submits that the conditions of detention of Mr. Ali and Mr. Sulaiman are
not in compliance with their human dignity as enshrined in article 10 (1) of the Covenant.
Both Mr. Ali and Mr. Sulaiman have been prohibited from communicating with the outside
world and with their families. The source highlights that Mr. Sulaiman was initially held
incommunicado for over one and a half years.
23.
In view of the above, the source argues that the deprivation of liberty of both Mr. Ali
and Mr. Sulaiman is arbitrary under category I.
2 Torres Ramírez v. Uruguay, communication No. 4/1977, para. 18.
3 A/HRC/22/44, para. 47.
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ii.
Category III
24.
The source submits that Mr. Ali and Mr. Sulaiman are being held in prolonged
arbitrary detention without charge and without access to judicial authorities. The authorities
that arrested them denied them all their fundamental legal safeguards, including regular
contact with their relatives and access to legal counsel.
25.
The source recalls that, according to the Human Rights Committee, detainees have
the right to appear in person before a court, and the court must have the power to order the
detainee to be brought before it. However, Mr. Ali and Mr. Sulaiman were not brought before
a judicial authority in spite of the General Attorney’s official request. The source therefore
argues that their deprivation of liberty is arbitrary under category III.
iii.
Category V
26.
The source submits that Mr. Sulaiman’s arrest is based solely on an alleged religious
affiliation with a non-Salafist group. At the time of his arrest, he was questioned only about
his religious beliefs, which therefore appear to be the reason for his arrest. Mr. Sulaiman’s
arbitrary detention is therefore based on the discriminatory grounds of his religious beliefs,
contrary to articles 18 and 26 of the Covenant. The source therefore argues that his
deprivation of liberty is arbitrary under category V.
Response from the Government
27.
On 13 August 2021, the Working Group transmitted the allegations from the source
to the Government under its regular communications procedure. The Working Group
requested the Government to provide, by 12 October 2021, detailed information about the
current situation of Mr. Ali and Mr. Sulaiman and to clarify the legal provisions justifying
their continued detention, as well as its compatibility with the obligations of Libya under
international human rights law, and in particular with regard to the treaties ratified by the
State. Moreover, the Working Group called upon the Government of Libya to ensure their
physical and mental integrity.
28.
The Working Group regrets that it did not receive a reply nor did the Government
request an extension in accordance with paragraph 16 of its methods of work4. The Working
Group notes that it has not received a reply from the Government in response to its
communications over the past five years5 and invites the Government to engage with the
Working Group constructively by taking the opportunity to respond to the communications.
Discussion
29.
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.
30.
In determining whether the detention of Mr. Ali and Mr. Sulaiman 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
law constituting arbitrary detention, the burden of proof should be understood to rest upon
the Government if it wishes to refute the allegations.6 In the present case, the Government
has chosen not to challenge the prima facie credible allegations made by the source.
31.
The Working Group wishes to reaffirm that the Government has the obligation to
respect, protect and fulfil the right to liberty, and that any national law allowing deprivation
of liberty should be made and implemented in conformity with the relevant international
standards set out in the Universal Declaration of Human Rights, the Covenant and other
4 A/HRC/36/38.
5 See opinions No. 3/2016, No. 4/2016, No. 6/2017, No. 39/2018, No. 18/2019, No. 85/2019 and No.
13/2020.
6 A/HRC/19/57, para. 68.
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5
applicable international and regional instruments.7 Consequently, even if the detention is in
conformity with national legislation, regulations and practices, the Working Group is entitled
and obliged to assess the judicial proceedings and the law itself to determine whether such
detention is also consistent with the relevant provisions of international human rights law.8
32.
As a preliminary matter, the Working Group notes that Mr. Ali and Mr. Sulaiman
were arrested and deprived of their liberty by the Special Deterrence Force, a militia group
nominally under the authority of the Ministry of Interior of the Government of National
Accord, which was recognized as the sole legitimate Government of Libya by the Security
Council in its resolution 2259 (2015). 9 Furthermore, the source contends, and the
Government does not dispute, that the Special Deterrence Force is a special security unit
whose members and equipment are funded by that Government, although it effectively
maintains its own command structure and operates with a significant level of autonomy.10
The Working Group therefore considers that it is difficult to deny that Mr. Ali and Mr.
Sulaiman have been deprived of liberty by State actors or by armed groups acting on behalf
of, or with the support, direct or indirect, consent or acquiescence of, the Government.11
33.
As developed in its previous opinions,12 the Working Group notes that the above-
mentioned descriptions indicate that the Special Deterrence Force must be considered a State
organ, whose conduct should be considered an act of that State under international law for
the purpose of article 4 of the draft articles on the responsibility of States for internationally
wrongful acts, which restates customary law.13 Even assuming arguendo that the Special
Deterrence Force is not an organ of the State under article 4, its conduct must be considered
an act of the State under international law in accordance with article 5 of the draft articles, as
it has been empowered by the law to exercise elements of governmental authority and has
been acting in that capacity in the present case, most prominently by virtue of Decree No.
555 (2018) of the Presidency Council, in which the Council authorizes the Special Deterrence
Force to implement State security policy and combat organized crime and terrorism on behalf
of the Government by arresting suspected offenders.14
34.
Moreover, the positive obligation of the State to respect, protect and fulfil fundamental
human rights, including personal liberty and security, by preventing and punishing their
arbitrary deprivation by State or non-State actors remains intact irrespective of whether the
actions of the Special Deterrence Force can be attributed to the Government. The Working
Group therefore concludes that, in the present case, the Government is fully responsible for
the actions of the Special Deterrence Force under international law.15
35.
In that regard, the Working Group notes the recommendation of the United Nations
High Commissioner for Human Rights that the Government urgently address the
proliferation of armed groups, including through disarmament, demobilization and
reintegration, and the building of national security forces under the command and control of
the State. It also notes the recommendation of the High Commissioner that the Government
address the situation of detainees, whether foreign or Libyan nationals, by ensuring that the
7 See the fifth preambular paragraph of General Assembly resolution 72/180; Commission on Human
Rights resolutions 1991/42, para. 2; and 1997/50, para. 15; and Human Rights Council resolutions
6/4, para. 1 (a); and 10/9.
8 Opinions No. 1/1998, para. 13.; No. 5/1999, para. 15; No. 1/2003, para. 17; No. 76/2017, para. 49;
No. 94/2017, para. 47; and No. 13/2020, para. 39.
9 Opinions No. 6/2017, para. 35; and No. 39/2018, para. 26.
10 See also Office of the United Nations High Commissioner for Human Rights and United Nations
Support Mission in Libya, “Abuse behind bars: arbitrary and unlawful detention in Libya”, April
2018, p. 18.
11 Opinion No. 3/2016, para. 15.
12 See, for example, opinions No. 39/2018, No. 18/2019, No. 85/2019 and No. 13/2020.
13 Opinion No. 6/2017, para. 37.
14 Opinion No. 39/2018, para. 31. The Special Deterrence Force has also been legally empowered to
exercise elements of governmental authority insofar as it runs one of the largest detention facilities in
Tripoli, at Mitiga international airport.
15 See opinions No. 6/2017, para. 38; and No. 39/2018, para. 32. See also principle 2 of the Principles
on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions; and
A/HRC/34/42, para. 22.
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State is in control of all detention facilities and that cases are screened with a view to
detainees being released or charged and judged in a trial affording all procedural guarantees,
in accordance with Libyan law and international standards.16
36.
The source claims that the respective detentions of Mr. Ali and Mr. Sulaiman
constitute arbitrary deprivation of their liberty under categories I and III as set out in the
methods of work of the Working Group. Additionally, the source submits that the detention
of Mr. Sulaiman constitutes arbitrary deprivation of his liberty, falling within category V.
Category I
37.
The source maintains that the respective arrests and detentions of the two individuals
are arbitrary under category I, as there was no legal basis or justification for them. There was,
according to the source, complete disregard for the prohibition of arbitrary arrest and
detention under various provisions of international human rights law. In particular, Mr. Ali
and Mr. Sulaiman were arrested without being shown a warrant and without being notified
of the reasons for their arrests, rendering their arrests arbitrary.
38.
The source has indicated that neither of the two detainees was shown an arrest warrant
at the moment of the deprivation of his liberty. The source states that, during his abduction
on 16 October 2016, Mr. Ali was arrested in a street in Ain Zara by masked members of the
Special Deterrence Force without being shown a warrant and without being informed of the
reasons for his arrest.
39.
Likewise, when members of the Special Deterrence Force, armed and with their faces
masked, arrived in several civilian vehicles at Mr. Sulaiman’s shop at Khallat al-Furjan on
16 May 2016, they surrounded the shop and beat him while forcing him into one of their
vehicles. No warrant was presented nor was he informed of the reasons for his arrest. None
of this information has been challenged by the Government, which never replied to the
communication from the Working Group.
40.
The Working Group has previously stated that, in order for a deprivation of liberty to
have a legal basis, the authorities must invoke that legal basis and apply it to the
circumstances of the case through an arrest warrant. Stated differently, international law on
detention includes the right to be presented with an arrest warrant to ensure the exercise of
effective control by a competent, independent and impartial judicial authority, which is
procedurally inherent in the right to liberty and security and the prohibition of arbitrary
deprivation under articles 3 and 9 of the Universal Declaration of Human Rights, article 9 (1)
of the Covenant, and principles 2, 4 and 10 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment.17 That was not the case with regard
to the two individuals,18 and the Working Group has not been presented with any valid
16 A/HRC/34/42, para. 86 (a) and (c).
17 The Working Group has maintained from its early years that the practice of arresting persons without
a warrant renders their detention arbitrary. See, for example, decisions No. 1/1993, paras. 6–7; No.
3/1993, paras. 6–7; No. 4/1993, para. 6; No. 5/1993, paras. 6 and 8–9; No. 27/1993, para. 6; No.
30/1993, paras. 14 and 17 (a); No. 36/1993, para. 8; No. 43/1993, para. 6; and No. 44/1993, paras. 6–
7. For more recent jurisprudence, see opinions No. 38/2013, para. 23; No. 48/2016, para. 48; No.
21/2017, para. 46; No. 63/2017, para. 66; No. 76/2017, para. 55; No. 83/2017, para. 65; No. 88/2017,
para. 27; No. 93/2017, para. 44; No. 3/2018, para. 43; No. 10/2018, para. 46; No. 26/2018, para. 54;
No. 30/2018, para. 39; No. 38/2018, para. 63; No. 47/2018, para. 56; No. 51/2018, para. 80; No.
63/2018, para. 27; No. 68/2018, para. 39; No. 82/2018, para. 29; No. 6/2020, para. 40; No. 11/2020,
para. 38; No. 13/2020, para. 47; No. 14/2020, para. 50; No. 31/2020, para. 41; No. 32/2020, para. 33;
No. 33/2020, para. 54; and No. 34/2020, para. 46. See also article 14 (1) of the Arab Charter on
Human Rights.
18 See, for example, opinions No. 93/2017, para. 44; No. 10/2018, paras. 45–46; No. 36/2018, para. 40;
No. 46/2018, para. 48; No. 9/2019, para. 29; No. 32/2019, para. 29; No. 33/2019, para. 48; No.
44/2019, para. 52; No. 45/2019, para. 51; No. 46/2019, para. 51; No. 65/2019, para. 59; No. 71/2019,
para. 70; No. 72/2019, para. 40; No. 82/2019, para. 74; No. 6/2020, para. 39; No. 11/2020, para. 37;
No. 13/2020, para. 46; No. 14/2020, para. 49; No. 31/2020, para. 40; No. 32/2020, para. 32; No.
33/2020, paras. 53 and 71; and No. 34/2020, paras. 44–46.
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grounds, such as arrest in flagrante delicto, to justify an exception to this principle in the
present cases.
41.
According to the source, since his arrest in October 2016, five years earlier, Mr. Ali
has still not been brought before a judicial authority. He continues to be held in the Mitiga
detention facility. No in-person visits are allowed. His relative has been able to interact with
him only a few times through a screen.
42.
As for Mr. Sulaiman, the source asserts that, since his arrest, he has been held in the
Mitiga detention facility, with his family being able to visit him only five times in five years
and for less than 10 minutes. Only two out of five of these visits were face to face. The source
also highlights that Mr. Sulaiman was initially held incommunicado for over one and a half
years.
43.
The Working Group finds that, in order to invoke a legal basis for deprivation of
liberty, the authorities should have informed each of the two individuals of the reasons for
his arrest at the time of the arrest and promptly informed him of the charges against him.
Their failure to do so is in violation of article 9 of the Universal Declaration of Human Rights,
article 9 (2) of the Covenant and principle 10 of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment. It also renders their arrests
devoid of any legal basis.
44.
The Working Group has reiterated that, according to article 9 (3) of the Covenant,
pretrial detention should be the exception rather than the norm and should be ordered for the
shortest time possible. Put differently, liberty is recognized under article 9 (3) of the Covenant
as the core consideration, with detention merely as an exception. Detention pending trial must
therefore be based on an individualized determination that it is reasonable and necessary for
such purposes as to prevent flight, interference with evidence or the recurrence of crime.19
As no such assessment was conducted by a judicial authority in the present case, the Working
Group finds a violation of article 9 (3) of the Covenant.
45.
The Working Group notes the source’s submission that neither of the two individuals
was brought promptly before a judge during his detention – that is, within 48 hours of his
arrest barring absolutely exceptional circumstances, as per the international standard set out
in the Working Group’s jurisprudence.20
46.
The Working Group considers that judicial oversight of the deprivation of liberty is a
fundamental safeguard of personal liberty and is essential in ensuring that detention has a
legal basis. Such oversight by an independent judicial authority was absent in the present
case.
47.
The Working Group further observes that Mr. Ali and Mr. Sulaiman have not been
afforded the right to be brought before a court so that it could decide without delay on the
lawfulness of their detention.
48.
The Working Group therefore finds that the arrest and detention of Mr. Ali and Mr.
Sulaiman is in violation of articles 3 and 9 of the Universal Declaration of Human Rights,
article 9 (3) and (4) of the Covenant, principles 11, 32, 37 and 38 of the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment, and
paragraph 2 of the 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. Furthermore, in the absence of oversight by an independent judicial authority, Mr.
Ali’s and Mr. Sulaiman’s right to an effective remedy under article 8 of the Universal
Declaration of Human Rights and article 2 (3) of the Covenant was also violated.
49.
As for the incommunicado detention of Mr. Sulaiman for over one year, which the
Government has not rebutted, the Working Group has also repeatedly asserted that holding
persons incommunicado is not permitted under international human rights law21 and is in
violation of their right to contest the legality of their detention before a court or tribunal under
19 Human Rights Committee, general comment No. 35 (2014), para. 38. See also A/HRC/19/57, paras.
48–58.
20 See, for example, opinion No. 6/2020, para. 45.
21 A/HRC/13/39/Add.5, para. 156. See also opinion No. 6/2020, para. 44.
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article 6 of the Universal Declaration of Human Rights and article 9 (4) of the Covenant. In
the circumstances attending Mr. Sulaiman’s deprivation of liberty, he was for some time
unable to challenge his detention before a court and, as such, his rights under article 6 of the
Universal Declaration of Human Rights and article 9 (4) of the Covenant were violated.
Consequently, his rights to an effective remedy under article 8 of the Universal Declaration
of Human Rights and article 2 (3) of the Covenant were also violated. He was also placed
outside the protection of the law, in violation of his right to be recognized as a person before
the law under article 6 of the Universal Declaration of Human Rights and article 16 of the
Covenant.
50.
Therefore, the Working Group finds that the Government has failed to establish a legal
basis for the prolonged detention of Mr. Ali and Mr. Sulaiman, rendering their detention
arbitrary under category I.
Category III
51.
The source submits that Mr. Ali and Mr. Sulaiman are being held in prolonged
arbitrary detention without charge and without access to judicial authorities. The authorities
that arrested them denied them all their fundamental legal safeguards, including regular
contact with their relatives and their access to counsel.
52.
The Working Group recalls that all persons deprived of their liberty have the right to
legal assistance by counsel of their choice at any time during their detention, including
immediately after their apprehension, and such access should be provided without delay.22 In
view of the facts of the present case, the Working Group finds a violation of article 10 of the
Universal Declaration of Human Rights and article 14 (1) and (3) (b) and (d) of the Covenant.
53.
Mr. Ali’s and Mr. Sulaiman’s prolonged detention since 16 October 2016 and 16 May
2016, respectively, for over five years with no prospect of a trial, is in clear violation of the
right to be tried without undue delay under article 14 (3) (c) of the Covenant. The Working
Group also finds that such prolonged detention undermines the presumption of innocence
guaranteed under article 11 (1) of the Universal Declaration of Human Rights, article 14 (2)
of the Covenant and principle 36 (1) of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment.23
54.
Furthermore, there can be no justification for such prolonged detention with no
prospect of a trial, which is a manifest violation of the right to be tried without undue delay
that is guaranteed under articles 10 and 11 (1) of the Universal Declaration of Human Rights
and article 14 (1) and (3) (c) of the Covenant.24
55.
According to the source, in the five years since Mr. Ali’s arrest, his relative has been
able to interact with him only a few times through a screen. Similarly, Mr. Sulaiman’s family
has been able to visit him only five times since his arrest five years earlier, and only two out
of these five visits were face to face. In particular, Mr. Sulaiman was held in incommunicado
detention, without access to the outside world or his family. The Working Group recalls that
the rights of any detainee to communicate with the outside world and be visited by family
are fundamental safeguards against any attempts by the authorities to violate their human
rights, including by torture or any other ill-treatment and enforced disappearance.25 The
Working Group therefore finds that the denial of the due process rights of Mr. Ali and Mr.
Sulaiman to be visited by and to correspond with their families and to be given adequate
opportunity to communicate with the outside world, subject to reasonable conditions and
restrictions as specified by law or lawful regulations, is contrary to principles 15 and 19 of
the Body of Principles for the Protection of All Persons under Any Form of Detention or
22 Human Rights Committee, general comment No. 32 (2007), paras. 32 and 34; and principle 9 and
guideline 8 of the 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.
23 Opinions No. 6/2020, para. 55; and No. 34/2020, para. 58.
24 Opinions No. 6/2020, para. 56; and No. 13/2020, para. 64. See also article 7 (1) (d) of the African
Charter on Human and Peoples’ Rights; and article 13 (1) of the Arab Charter on Human Rights.
25 See Human Rights Committee, general comment No. 35 (2014); and Working Group on Arbitrary
Detention, opinion No. 42/2018.
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9
Imprisonment and rules 43 (3) and 58 (1) of the United Nations Standard Minimum Rules
for the Treatment of Prisoners (the Nelson Mandela Rules).
56.
For these reasons, the Working Group finds that the violations of the fair trial rights
of Mr. Ali and Mr. Sulaiman are of such gravity as to render their detention arbitrary under
category III.
Category V
57.
With regard to category V, the source claims that Mr. Sulaiman’s arrest is based solely
on an alleged religious affiliation with a non-Salafist group. At the time of his arrest, he was
questioned only about his religious beliefs, which therefore appear to be the reason for his
arrest. According to the source, Mr. Sulaiman’s detention is therefore based on the
discriminatory grounds of his religious beliefs and is contrary to articles 18 and 26 of the
Covenant. The source therefore argues that his deprivation of liberty is arbitrary and falls
within category V.
58.
The Working Group recalls that article 2 (1) of the Covenant prohibits any difference
of treatment between individuals based, inter alia, on political opinion. Accordingly, in its
general comment No. 35 (2014), the Human Rights Committee confirmed that arrest or
detention on discriminatory grounds, in violation of articles 2 (1), 3 or 26, was also in
principle arbitrary.26 The same applies to the treatment of detainees, which should not be
discriminatory, according to principle 5 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment.
59.
On the facts as submitted by the source, the Working Group considers that Mr.
Sulaiman was targeted because of his religious beliefs and affiliation with a non-Salafist
group. When a detention results from the active exercise of civil and political rights, there is
a strong presumption that the detention also constitutes a violation of international law on the
grounds of discrimination based on political or other views.27 The Working Group therefore
finds that Mr. Sulaiman was detained in violation of articles 18 and 26 of the Covenant and
articles 2, 7 and 18 of the Universal Declaration of Human Rights. His detention is therefore
arbitrary under category V.
Concluding remarks
60.
The Working Group expresses its grave concern at the documented pattern of mass
arbitrary detention in Libya.28 The circumstances in the present case are also similar to those
detailed in the report on the investigation by the Office of the United Nations High
Commissioner for Human Rights on Libya.29 The Working Group considers that the cases of
Mr. Ali and Mr. Sulaiman are therefore not isolated incidents. In that regard, the Working
Group observes that, under certain circumstances, widespread or systematic imprisonment or
other severe deprivation of liberty in violation of the rules of international law may constitute
crimes against humanity.30
Disposition
61.
In the light of the foregoing, the Working Group renders the following opinion:
(a)
The deprivation of liberty of Abdelhakim Imbarak Muhammad Ali, being in
contravention of articles 2, 3 and 6–11 of the Universal Declaration of Human Rights and
articles 2, 9, 14 and 16 of the International Covenant on Civil and Political Rights, is arbitrary
and falls within categories I and III;
26 See also opinion No. 42/2018.
27 Opinions No. 88/2017, para. 43; No. 13/2018, para. 34; and No. 59/2019, para. 79.
28 See Office of the United Nations High Commissioner for Human Rights and United Nations Support
Mission in Libya, “Abuse behind bars”.
29 A/HRC/31/47.
30 A/HRC/13/42, para. 30. See also opinions No. 1/2011, para. 21; No. 83/2018, para. 68; No. 87/2018,
para. 80; and No. 13/2020, para. 71.
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10
(b)
The deprivation of liberty of Sulaiman Muhammad Salim Sulaiman, being in
contravention of articles 2, 3, 6–11 and 18 of the Universal Declaration of Human Rights and
articles 2, 9, 14, 16, 18 and 26 of the International Covenant on Civil and Political Rights, is
arbitrary and falls within categories I, III and V.
62.
The Working Group requests the Government of Libya to take the steps necessary to
remedy the situation of Mr. Ali and Mr. Sulaiman without delay and bring it into conformity
with the relevant international norms, including those set out in the Universal Declaration of
Human Rights and the Covenant.
63.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Ali and Mr. Sulaiman immediately and
accord them an enforceable right to compensation and other reparations, in accordance with
international law. 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 action to ensure the immediate unconditional release of Mr.
Ali and Mr. Sulaiman.
64.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Ali
and Mr. Sulaiman and to take appropriate measures against those responsible for the violation
of their rights.
65.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
66.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Ali and Mr. Sulaiman have been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Ali and Mr.
Sulaiman;
(c)
Whether an investigation has been conducted into the violation of Mr. Ali’s
and Mr. Sulaiman’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Libya with its international obligations in line with the
present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
67.
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.
68.
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.
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11
69.
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.31
[Adopted on 17 November 2021]
31 See Human Rights Council resolution 42/22, paras. 3 and 7.