Opinion; Subjects: BENIN, 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.22-25033 (E) 161123 171123
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on
Arbitrary Detention at its ninety-fourth session,
29 August–2 September 2022
Opinion No. 51/2022, concerning Reckya Madougou (Benin)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 42/22.
2.
In accordance with its methods of work,1 on 25 January 2022 the Working Group
transmitted to the Government of Benin a communication concerning Reckya Madougou.
The Government replied to the communication on 28 March 2022. 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/2022/51
General Assembly
Distr.: General
7 November 2022
English
Original: French
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Submissions
Communication from the source
4.
Reckya Madougou, born on 30 April 1975, is a Beninese politician. She twice served
as a minister and was a government spokesperson up to 2013; between 2017 and December
2020 she was a special adviser to the President of the Republic of Togo. After leaving the
Government, Ms. Madougou reportedly worked with international organizations and was
ranked among the most influential African women in the world.
5.
The source reports that, in December 2020, Ms. Madougou returned to Benin and
decided to run in the presidential election. She was selected as a candidate by the Democrats,
the former President’s party, and launched her campaign, denouncing the lack of pluralism
in the election, alongside other opposition candidates allegedly excluded from the election.
(a)
Arrest and detention
6.
According to the source, Ms. Madougou was arrested on 3 March 2021, at around
7 p.m., as she was leaving a meeting held by opposition figures. She was arrested by the
police at the Porto-Novo bridge in Cotonou pursuant to an arrest warrant dated 1 March 2021,
issued by the Special Prosecutor of the Court for the Prevention of Financial Offences and
Terrorism, in accordance with article 70 of the Code of Criminal Procedure. She was
allegedly arrested without prior notice and without explanation, and taken to the headquarters
of the Economic and Financial Brigade, where she spent the night.
7.
According to the source, on 4 March 2021, at approximately 3 p.m., Ms. Madougou
was brought before the Special Prosecutor of the Court for the Prevention of Financial
Offences and Terrorism, who informed her of the charges against her, namely criminal
association and acts of terrorism allegedly committed to destabilize Benin and the regime of
the President, who was re-elected on 11 April 2021 in an election that reportedly took place
amid heightened tensions and a record abstention rate. Ms. Madougou was then questioned
by the Economic and Financial Brigade, and her home was searched. On 5 March 2021,
Ms. Madougou was again brought before the Special Prosecutor and charged by the
Investigating Commission. She was accused of having “the intention of disrupting the next
election by committing large-scale acts of terror” through the financing of an operation that
involved “the murder of an important political figure in Parakou” and “the killing of a second
political figure at the funeral of the first victim”. In accordance with articles 146 et seq. of
the Code of Criminal Procedure, she was brought before the Liberties and Detention
Chamber, which ordered her detention at the Akpro-Missérété civil prison on 5 March 2021.
8.
According to the source, Ms. Madougou was implicated by two testimonies, including
that of a member of her party, who was also prosecuted and was not allowed to be
accompanied by his lawyer during questioning by the investigative police.
9.
Ms. Madougou’s appeal against the detention order of 5 March 2021 was rejected.
Her request to be released pending trial, lodged on 12 July 2021, was also denied in an order
dated 16 July 2021, on the grounds that she needed to remain at the disposal of the courts as
further investigative measures still had to be carried out. The source notes that the duration
of pretrial detention, normally limited to six months, can be renewed three times in criminal
cases. In addition, under article 147 of the Code of Criminal Procedure, the judicial
authorities are required to bring the accused to trial within five years in criminal cases and
three years in less serious cases.
(b)
Legal analysis
(i)
Category I
10.
The source notes that, under article 9 of the Covenant, no one shall be deprived of his
or her liberty except on such grounds and in accordance with such procedure as are
established by law.
11.
According to the source, Ms. Madougou was arrested in accordance with an illegal
warrant issued by an authority that lacked the competence to do so. Indeed, the source alleges
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that, under articles 70 and 402 of the Code of Criminal Procedure, the public prosecutor has
the authority to issue an arrest warrant only in cases of flagrante delicto. In this respect, the
source notes that, under article 47 of the Code of Criminal Procedure, in order for an offence
to be classified as flagrante delicto, the perpetrator must be caught in the act, at the exact
moment of the offence being committed or having just been committed.
12.
In the case at hand, the source states that it is clear from the Special Prosecutor’s own
statements that Ms. Madougou was implicated in the course of an investigation opened on
26 February 2021. She had not tried to flee or hide, and had attended an election meeting
even though some of her relatives had been arrested. The source claims that no crime was
being committed and that there was no urgency that would have justified a departure from
the normal procedure, which is conducted by the investigating judge and not the public
prosecutor.
13.
The source concludes that, in the absence of a flagrante delicto offence that would
have given the public prosecutor competence to issue an arrest warrant, Ms. Madougou was
arrested on the basis of an illegal warrant.
14.
The source recalls that article 146 of the Code of Criminal Procedure stipulates that
pretrial detention is an exceptional measure that can only be ordered if it is the sole means of
preserving evidence and preventing intimidation of witnesses or victims or collusion between
accused persons, guaranteeing that the accused person remains at the disposal of the courts,
preventing a repeat offence, or putting an end to an exceptional and persistent disturbance of
public order.
15.
At the hearing on 5 March 2021, a reading of the record of the interrogations
apparently revealed that a retired colonel had formally declared that he had had no direct or
indirect exchange with Ms. Madougou and had no problem with her. In these circumstances,
and in the absence of any other evidence, the source deduces that the Liberties and Detention
Chamber could not legally order Ms Madougou’s detention.
16.
The source also states that Ms. Madougou’s request for pretrial release was denied on
the grounds that further investigative measures needed to be conducted. However, no
explanation was given to justify why a judicial supervision measure would not have been
sufficient to ensure that Ms. Madougou was present for the investigative measures in
question, for which no schedule was given.
17.
The source notes that the measures in question included confrontations with other
persons in detention since the end of February 2021. The source argues that these
confrontations could have been organized earlier, and therefore cannot be used to justify an
additional period of pretrial detention, which should be an exceptional measure.
18.
The source also claims that the records of the interrogations on 6 and 19 August 2021
are null and void because no order for the referral of the case to the Special Prosecutor was
issued, and no request was made to bring supplementary charges. The source explains that,
under article 86 of the Code of Criminal Procedure, the investigating judge must immediately
forward to the public prosecutor any complaints or reports of facts not covered in the original
indictment that are brought to his or her attention. Under article 88 of the Code, the public
prosecutor may then, in an application for additional charges to be brought, request the
investigating judge to take any action he or she deems necessary to establish the truth in light
of the new facts. The source stresses that the investigating judge can only investigate on the
basis of the facts set out in the original indictment and cannot, on his or her own initiative,
investigate facts discovered during the course of the investigation or ask questions about
these new facts. Pursuant to article 184 of the Code of Criminal Procedure, acts issued in
disregard of the rules governing jurisdiction, the status of the investigating judge, searches,
home visits, seizures, the liberty of defendants and respect for the rights of the defence are
null and void.
19.
The source maintains that the records of Ms. Madougou’s hearings are null and void,
as she was questioned by the investigating judge on 6 and 19 August 2021 about new facts
not covered in the original indictment, and the case file was not made available to her lawyers.
The source notes that under articles 50 and 104 of the Code of Criminal Procedure, any item
seized during an arrest must be placed under seal. In addition, the case file must be made
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available to the defence at least 48 hours before questioning. The source notes that the
telephone seized on the day of Ms. Madougou’s arrest, from which the conversation that
formed the basis of the questioning on 6 and 19 August 2021 was allegedly extracted, was
not placed under seal.
20.
In addition, the source complains that Ms. Madougou was not present during the
search and extraction of the contents of her telephone, even though she had repeatedly
reported the hacking of her devices since the beginning of 2021. The source adds that the
evidence supposedly extracted from one of Ms. Madougou’s telephones was not in the case
file consulted by her lawyers 48 hours before the questioning on 6 August 2021, making it
impossible for them to know what evidence was going to be used against her and thus to
prepare her defence.
21.
Lastly, the source contends that the records in question are illegal and null and void
because prosecution is barred in accordance with the Amnesty Act (No. 2019-39) of
7 November 2019, in particular articles 1 and 2 thereof. The source specifies that a letter
requesting the cancellation of the questioning on 6 August 2019 was sent to the Investigation
Chamber. The source believes that the Investigation Chamber’s failure to respond to this
request demonstrates the judiciary’s desire to investigate facts covered by Act No. 2019-39.
(ii)
Category II
22.
According to the source, Ms. Madougou’s arrest and detention stem from her exercise
of her rights to freedom of opinion and expression, peaceful assembly and association, as
well as her right to take part in the conduct of public affairs in her country, having been
nominated in the primaries organized by her party, considered to be the largest opposition
party. The source maintains that this is a political case set against the backdrop of the erosion
of public freedoms in Benin since the 2016 elections, as well as the instrumentalization of
the justice system with the aim of eliminating government opponents.
23.
The source also notes that the international community and certain governments are
openly concerned about this general situation, as well as Ms. Madougou’s case.
(iii)
Category III
24.
According to the source, the Court for the Prevention of Financial Offences and
Terrorism, under which the Liberties and Detention Chamber that ordered Ms Madougou’s
pretrial detention operates, does not meet the fundamental criteria of independence and
impartiality of the courts. The source argues that the executive is constantly interfering in the
Beninese justice system, particularly in the operation of the Court for the Prevention of
Financial Offences and Terrorism. The Supreme Council of Justice, the disciplinary body
that regulates the careers and promotions of judges, is reportedly headed by the President of
the Republic and composed mainly of members of the executive branch appointed by
presidential decree. Judges of the Court for the Prevention of Financial Offences and
Terrorism are appointed by decree of the Council of Ministers, on the advice of the Supreme
Council of Justice. The source cites a study by the Benin Bar Association that concluded that
the structures of the Court do not guarantee the requirements of independence and
impartiality, and its recommendation that Act No. 2018-13 of 2 July 2018 on the
establishment of the Court for the Prevention of Financial Offences and Terrorism should be
repealed. Finally, the source recalls the conclusions of the African Court on Human and
Peoples’ Rights regarding the lack of independence of the Beninese judiciary and of the Court
for the Prevention of Financial Offences and Terrorism in particular. The source regrets the
failure by Benin to implement the recommendations issued by the African Court on Human
and Peoples’ Rights in 2020 to guarantee the independence of the judiciary.
25.
The source also notes that, at its session from 14 April to 4 May 2021, the African
Commission on Human and Peoples’ Rights expressed concern at the restrictions on civic
space and public freedoms, as well as the climate of repression that results in the arrest and
detention of opponents, political activists and journalists.
26.
In this case, the source reports that a judge from the Court for the Prevention of
Financial Offences and Terrorism who ordered Ms. Madougou’s detention resigned from his
position and publicly revealed the pressure brought to bear on the Court’s judges in
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Ms. Madougou’s case. The judge reportedly pointed out the lack of incriminating evidence
to justify her detention, as well as the lack of independence he and his colleagues enjoyed in
several cases, including Ms. Madougou’s. These claims have reportedly not been
investigated.
27.
Finally, the source argues that the principles of separation of powers and
independence of the judiciary are not respected in Benin, since the President, in a televised
interview, expressly stated that Ms. Madougou was guilty, even before she had been brought
to trial.
28.
The source claims that the interference of the executive branch in the decisions taken
by the various entities that make up the Court for the Prevention of Financial Offences and
Terrorism and the President’s public statements on Ms. Madougou’s guilt violate her right to
the presumption of innocence.
29.
The source also claims that two police officers were constantly present in the custody
room to prevent Ms. Madougou from conferring with her lawyers in private. It was virtually
impossible for her to talk to her lawyers confidentially, and they did not have access to the
case file during the early stages of their client’s detention, as the Court had not granted them
authorization.
30.
The source concludes that there has been a violation of article 14 (3) (b) of the
Covenant, principle 9 and guideline 5 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,2 and principle 18 of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment, such as to render
Ms. Madougou’s detention arbitrary.
31.
The source alleges that Ms. Madougou has not been able to speak to her family since
the beginning of her detention, in violation of article 10 of the Covenant, principle 19 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, and the United Nations Standard Minimum Rules for the Treatment of
Prisoners (the Nelson Mandela Rules), in particular those relating to health rights. In
particular, she has not been able to speak to family members when they deliver her meals, or
to see or telephone other family members. Unlike other inmates, Ms. Madougou does not
have access to a phone booth.
32.
Lastly, the source maintains that Ms. Madougou has been the victim of inhuman and
degrading treatment, in violation of article 7 of the Covenant, principle 6 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
and the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules) on standards of hygiene, which provide that persons deprived of their liberty
shall not be exposed to any kind of degrading situation and that places of detention must be
decent and provide the facilities required for detainees to sleep, eat, wash and relieve
themselves.
33.
In this respect, the source claims that the prison administration has punitively reduced
the number of days on which Ms. Madougou’s family can bring her meals to three per week.
However, Ms. Madougou is dependent on these meals provided by her family, since the
refrigerator in her cell has been removed and she has no means of preparing her own meals,
such as a microwave oven. However, it is essential for her to guard against any risk of food
poisoning linked to the conditions in which meals are prepared in the prison or even the risk
of poisoning.
34.
Reportedly, Ms. Madougou also had the radio she kept in her cell brutally confiscated,
without explanation, while other inmates were allowed to have televisions and encrypted
channel decoders. The source considers this to be an infringement of her right to information
that is neither necessary nor proportionate. It claims that several weeks after Ms. Madougou’s
lawyers complained about these measures, they were extended to the entire prison in order
to cover up the discrimination against Ms. Madougou.
2 A/HRC/30/37, annex.
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35.
Following the confiscation of this equipment on the evening of 15 April 2021,
Ms. Madougou fell ill during the night of 22 to 23 April and was only found the next morning,
unconscious, by a prison guard who triggered an emergency response to resuscitate her.
According to the source, Ms. Madougou’s fellow inmates, who are kept isolated and without
electricity or an alarm bell throughout the night, despite their requests to the prison director,
were unable to report the incident. The source stresses that the equipment confiscated on
15 April and the fans were installed with the authorization of the prison authorities, and that
male detainees have air-conditioned cells.
36.
According to the source, these deprivations and abuses, which were reported on
several occasions to the Special Prosecutor of the Court for the Prevention of Financial
Offences and Terrorism, are typical of the inhuman and degrading conditions of detention,
in breach of the applicable principles, and confirm the arbitrary nature of Ms. Madougou’s
detention.
Response from the Government
37.
On 25 January 2022, the Working Group transmitted a communication to the
Government requesting it to provide detailed information on Ms. Madougou by 28 March
2022 at the latest.
38.
The Government sent its reply to the Working Group on 28 March 2022, in which it
refuted all the alleged violations of Ms. Madougou’s fundamental rights. In addition, it states
that, under Act No. 2019-40 of 7 November 2019, amending Act No. 90-32 of 11 December
1990 establishing the Constitution of the Republic of Benin, a system of endorsement of
presidential candidates by deputies and mayors was introduced, and the presidential,
legislative and municipal terms were aligned with a view to holding general elections in 2026.
39.
According to the Government, on 3 February 2021, Ms. Madougou, until then a
special adviser to the President of the Republic of Togo, was selected as the candidate of the
Democrats, the opposition party, for the presidential election scheduled to take place on
11 April 2021. The following day, she submitted her candidacy without the endorsements
required by law. The Government notes that the party that nominated her had no elected
members in parliament or in the municipalities. On 12 February 2021, the Autonomous
National Electoral Commission, the independent body responsible for organizing the
election, reportedly rejected Ms. Madougou’s candidacy for lack of endorsements. By
decision No. EP 21-014 of 17 February 2021, the Constitutional Court rejected the appeal
lodged by Ms. Madougou on 15 February against the decision of the Autonomous National
Electoral Commission.
40.
On 15 February 2021, Ms. Madougou reportedly posted on her social media accounts
that “the people will not accept the stranglehold of a groupthink on this election campaign”,
and that “we will not let ourselves be deprived of a third election”. The day after the
Constitutional Court’s decision, Ms Madougou and her political party reportedly called for
subversion by denouncing the constitutional provisions that had extended the term of the
sitting President so as to align the terms of all elected positions. Ms. Madougou reportedly
continued to have appointments and meetings in the field, promising her audience that the
presidential election could not take place if the rejection of her candidacy was upheld. In
parallel, her supporters, who had organized themselves in small committees, reportedly
demanded the suspension of the electoral process, claiming that the planned elections were
not inclusive.
41.
According to the Government, one of Ms. Madougou’s collaborators contacted a
retired colonel of the National Police to entrust him, in return for payment, with a mission to
assassinate political figures close to the presidential camp, with the aim of creating a climate
of terror and forcing the suspension of the electoral process. Ms. Madougou apparently gave
her collaborator a sum of 15 million CFA francs, part of which was immediately handed over
to the colonel. According to a statement by the aforementioned colonel, the funds were
handed over in a jute bag in order to ensure that the financing of the operation could not be
traced. The facts were referred to the Special Prosecutor of the Court for the Prevention of
Financial Offences and Terrorism as part of a flagrante delicto investigation into the
financing of terrorism.
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42.
During questioning by the police, the colonel admitted having received funds from
Ms. Madougou’s collaborator to commit the murders. The collaborator in turn stated when
questioned that he had received the funds from Ms. Madougou’s emissaries.
43.
Ms. Madougou was arrested on 3 March 2021, pursuant to a warrant issued by the
Special Prosecutor of the Court for the Prevention of Financial Offences and Terrorism, who
had requested the opening of a preliminary investigation against her and the other persons
arrested, in accordance with the Code of Criminal Procedure. She was charged by the
Investigating Commission of the Court for the Prevention of Financial Offences and
Terrorism and on the same day was brought before the Liberties and Detention Chamber,
which issued an order for her pretrial detention dated 5 March 2021. Ms. Madougou was then
incarcerated in the Akpro-Missérété civil prison. At the end of the judicial investigation,
Ms. Madougou was referred to the Court for the Prevention of Financial Offences and
Terrorism’s Criminal Chamber on 26 November 2021. She was assisted by legal counsel
from the moment of her arrest, was publicly tried and sentenced to 20 years’ imprisonment
for financing of terrorism in a ruling dated 11 December 2021. As Ms. Madougou did not
lodge an appeal, her conviction is final.
44.
It is reported that, during the flagrante delicto investigation, Ms. Madougou was
mentioned extensively and implicated as a backer and financier. It was in the course of this
flagrante delicto investigation that the Special Prosecutor of the Court for the Prevention of
Financial Offences and Terrorism issued a warrant for Ms. Madougou’s arrest. In the
Government’s view, the fact that one of the suspects was found to be in possession of funds
to finance terrorist acts meets the criteria for a flagrante delicto offence.
45.
The Government points out that the Court for the Prevention of Financial Offences
and Terrorism’s Liberties and Detention Chamber justified placing Ms. Madougou in pretrial
detention in accordance with article 149 of the Code of Criminal Procedure, citing the
seriousness of the charges, the lack of guarantee of appearance and, lastly, the possibility that
she would intimidate witnesses or obstruct the establishment of the truth.
46.
In the Government’s view, the acts of which Ms. Madougou is accused are extremely
serious and took place against the backdrop of tensions surrounding a presidential election
and with a view to disrupting the electoral process. In addition, given the nature of the alleged
offences, her influence within her political family and her wealth, she would be liable to
intimidate witnesses or obstruct the establishment of the truth. The lack of any guarantee of
the defendant’s appearance results from the fact that her primary residence is in Togo, where,
in her capacity as special adviser to the President of Togo, she has powerful backers capable
of providing her with the means to evade justice.
47.
The Government recalls that, under article 149 of the Code of Criminal Procedure,
decisions on the merits of a request for pretrial release are at the discretion of the liberties
and detention judge, who does not rule on the material facts or the guilt of the accused. The
alleged absence of a direct link between Ms. Madougou and the colonel, which is a question
of substance, is not sufficient to render Ms. Madougou’s detention unjustified.
48.
With regard to the source’s allegations concerning the rejection of Ms. Madougou’s
requests for pretrial release, the Government observes that she and her lawyers requested the
postponement of investigative measures on several occasions, for various reasons, as noted
in several records. The Investigating Commission was forced to rearrange its schedule, to the
detriment of other accused persons, and thus extend the duration of the preliminary
investigation.
49.
The Government affirms that, under article 87 of the Code of Criminal Procedure, the
investigating judge shall, in accordance with the law, carry out any investigative measures
he or she considers useful for establishing the truth. The investigating judge is the only one
with the power to decide whether and when to carry out new investigative measures provided
that the detention orders are renewed in due form and within the legally established deadlines.
The orders for Ms. Madougou’s detention were reportedly regularly renewed until her
referral and trial before the Criminal Chamber of the Court for the Prevention of Financial
Offences and Terrorism, less than a year after her arrest.
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50.
According to the Government, under Beninese law, there is no obligation on the judge
who orders pretrial detention to demonstrate that judicial supervision would be inappropriate,
and there is only a requirement to provide the reasons for the measure taken, which is
sufficient to justify the exclusion of alternative measures.
51.
With regard to the allegations that the records of Ms. Madougou’s hearings are null
and void, the Government asserts that, in accordance with article 86 of the Code of Criminal
Procedure, the evidence and information gathered concerning the new facts about which she
was questioned on 6 and 19 August 2021 had not given rise to any new charges against
Ms. Madougou. The Government notes that the said facts are covered by an amnesty law. It
also notes that the source admits that Ms. Madougou’s lawyers had access to the file prior to
the questioning on 6 and 19 August 2021. It asserts that, in accordance with article 128 of the
Code of Criminal Procedure, the Investigating Commission of the Court for the Prevention
of Financial Offences and Terrorism always notified Ms. Madougou’s counsel that the file
would be made available as soon as questioning on the substance of the case was scheduled.
52.
The Government stresses that Ms. Madougou’s telephones were seized by the
investigation unit during the search of her home and immediately sealed in her presence.
Ms. Madougou provided the codes to unlock the telephones on 17 June 2021. On the basis
of letters rogatory dated 12 March and 1 July 2021, these telephones were placed at the
disposal of the technical and forensic police for data extraction. The Government notes that
there is no legal requirement for the accused to be present when data is extracted from their
telephones and that they can request a second opinion if they dispute the findings of the
forensic experts, which Ms. Madougou never did.
53.
The Government notes that the investigation section of the Appeals Chamber of the
Court for the Prevention of Financial Offences and Terrorism acts as an indictment chamber
before the Court, by virtue of article 185 of the Code of Criminal Procedure and article 12 of
Act No. 2020-07 of 17 February 2020. As Ms. Madougou never submitted any request to the
aforementioned section for the records to be annulled, the Government concludes that the
records of 6 and 19 August 2021 were without formal defects.
54.
According to the Government, transcripts of Ms. Madougou’s telephone messages
and the testimonies of those involved confirmed that she had meticulously prepared political
assassinations designed to sabotage the electoral process. Ms. Madougou was sentenced by
the Court for the Prevention of Financial Offences and Terrorism to 20 years’ imprisonment
for these offences against public order and the foundations of the rule of law, and not for
political reasons or opinions.
55.
Ms. Madougou benefited from a fair trial in that she was tried publicly, within a
reasonable time, with strict respect for the rights of the defence, and by an independent and
impartial court acting pursuant to its functions as set out in law. The Government points out
that in 2018, the Beninese legislature created a specialized court with national jurisdiction
dedicated to combating forms of crime such as corruption, terrorism and drug trafficking.
The judges of the Court for the Prevention of Financial Offences and Terrorism are subject
to the same statutes as all Beninese judges. The Beninese judiciary is established by the
Constitution and governed by a statute contained in Act No. 2001-35 of 21 February 2003 on
the status of the judiciary, which has not been amended since Ms. Madougou was Minister
of Justice.
56.
The Government denies the source’s allegations concerning the Court’s lack of
independence and impartiality. It explains that, like all Beninese courts, the Court comprises
judges and prosecutors, and is headed by a judge. Its various chambers are made up of panels
of judges, who enjoy all the privileges of independence linked to their functions. It also
includes a special prosecutor’s office, whose members report to the Minister of Justice.
57.
Ms. Madougou was allegedly charged and placed in detention by the Investigating
Commission and the Liberties and Detention Chamber, both of which are composed
exclusively of judges whose independence is guaranteed. She was tried and sentenced by the
Trial Chamber, also made up of independent judges. The Government therefore denies the
allegations that the Court lacks independence.
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58.
Article 129 of the Constitution provides for the appointment of judges by the President
of the Republic, on the recommendation of the Minister of Justice, after consulting the
Supreme Council of Justice. Articles 27 et seq. of Act No. 2001-35 establish a system for
recruiting judges on the basis of qualifications or by competitive examination, under
conditions that exclude the possibility of any discrimination or favouritism. According to the
Government, this system, which was also in place when Ms. Madougou was Minister of
Justice, is in line with principle 10 of the Basic Principles on the Independence of the
Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and
the Treatment of Offenders in 1985, and confirmed by General Assembly resolutions 40/32
and 40/146.
59.
The Government notes that the judgment of 29 March 2018 by the African Court on
Human and Peoples’ Rights, cited by the source, found fault only with articles 12 and 19 of
Act No. 2018-13 on the establishment of the Court for the Prevention of Financial Offences
and Terrorism, on the grounds that they do not provide for the right to appeal for those
prosecuted. The Government specifies that Act No. 2020-07 amending and supplementing
Act No. 2018-13 introduced the right of appeal.
60.
Ms. Madougou relies on statements made by a former judge who abandoned his post,
to the effect that the Court’s judges were put under pressure and, in particular, that none of
the charges against her justified her detention.
61.
The Government points out that the former judge cited by Ms. Madougou, who
attested to the pressure put on judges and the lack of justification for her detention, ordered
detention, judicial reviews and release on bail on numerous occasions while at the Court,
without ever complaining of any pressure whatsoever. The Government considers that the
closeness between Ms. Madougou and the judge who resigned from Togo, a country where
Ms. Madougou has many ties, casts doubt on these allegations. It also notes that the former
judge was assisted by Ms. Madougou’s lawyers in obtaining residence permits in Paris. The
Government further notes that the judge, in his capacity as liberties and detention judge, dealt
with issues relating to liberty and detention and is not in a position to declare that the case
against Ms. Madougou is unsubstantiated.
62.
As regards the allegations of a breach of the right to the presumption of innocence,
the Government maintains that the President of Benin merely recounted the extremely serious
facts of which he was aware in his capacity as the primary guarantor of public order, without
ever expressing an opinion as to Ms. Madougou’s guilt. He was in no way involved in the
judicial process that led to Ms. Madougou’s conviction.
63.
The Government contests the allegations concerning Ms. Madougou’s right to
defence. It maintains that her lawyers had constant access to her file and to their client and
were kept informed of all developments in the proceedings, in accordance with the law. Five
lawyers regularly visit Ms. Madougou in prison, in the visiting room reserved for lawyers, as
confirmed by the logbooks. The visiting room is arranged in such a way as to guarantee the
confidentiality of exchanges between detainees and their lawyers. The Government points
out that due to the coronavirus disease (COVID-19) pandemic, prison visits have been
restricted under an implementing circular dated 18 March 2020, issued by the Minister of
Justice.
64.
Furthermore, it is reported that Ms. Madougou designated her mother as the only
person of trust allowed to visit her regularly, apart from her lawyers, and to bring her meals,
which she did without fail. Ms. Madougou also receives frequent visits from her family and
her children, accompanied by her mother. She has not been discriminated against when it
comes to her visiting rights.
65.
It is also reported that Ms. Madougou is housed in a 72.80-square-metre dormitory
with four other inmates and has two beds. The dormitory has ventilation and lighting and is
equipped with a modern bathroom and toilet. During its visit to the dormitory in July 2021,
the Benin Human Rights Commission made no observations regarding the conditions of her
detention. The Government specifies that the State provides detainees with two meals a day
and allows them to prepare their own meals on site if they so wish. Unlike some of her fellow
inmates, who prepare their own meals, Ms. Madougou eats only the meals brought by her
mother. In a bid to reconcile the response to the COVID-19 pandemic with respect for
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inmates’ fundamental rights, the prison administration has authorized the delivery of food
and meals to inmates on Wednesdays, Saturdays and Sundays.
66.
As reported, the ban on household appliances, air conditioners and encrypted channel
decoders has been extended to all prisons in Benin. Radios and televisions with analogue
antennas are allowed, and a television set was installed in the women’s dormitory. It was
removed when the inmates, who were demanding a decoder, threatened to break it.
67.
According to the Government, Ms. Madougou fell ill on the morning of 23 April 2021.
One of her fellow inmates immediately alerted the prison guard, who called the medical staff.
Claiming to fear for her safety, Ms. Madougou refused to be seen by the prison doctor and
asked to be examined by a doctor chosen by her family. The administration granted her
request, and she was examined by a doctor sent by her mother and accompanied by her
lawyer. On the doctor’s recommendation, the Special Prosecutor of the Court for the
Prevention of Financial Offences and Terrorism authorized her to be examined by three
cardiologists, including one designated by her family. However, she refused to be examined
by him.
68.
The Government explains that an alarm has been installed in the women’s quarters to
enable them to alert the administration in the event of an incident. Ms. Madougou’s quarters
are equipped with a generator that automatically starts up in the event of a power cut.
69.
Consequently, the Government asserts that Ms. Madougou is not being held in
degrading conditions that violate her dignity.
Additional comments from the source
70.
In its additional comments, the source stresses that the colonel in question stated that
it was him who initiated contact with Ms. Madougou’s collaborator, and not the other way
around. In addition, he testified that the funds received were not from Ms. Madougou and
exonerated her entirely.
71.
According to the source, Ms. Madougou’s candidacy for the presidential election was
rejected by the Autonomous National Electoral Commission because of the system of
endorsement designed to eliminate the opposition.
72.
On 11 December 2021, the Court for the Prevention of Financial Offences and
Terrorism sentenced Ms. Madougou to 20 years’ imprisonment for complicity in terrorist
acts. The decision was not communicated to her. Ms. Madougou did not file an appeal
because of the lack of independence of the Beninese judiciary.
73.
The source contests the existence of a flagrante delicto offence, as well as the reasons
put forward by the Government to justify Ms. Madougou’s placement in pretrial detention.
According to the source, if Ms. Madougou’s arrest was not politically motivated, even though
the Government’s reference to her influence on her party suggests that it was, an alternative
to detention should have been granted. The source notes the absence of material proof of the
involvement of Togo in the acts of which Ms. Madougou is accused, and contests the absence
of a guarantee of appearance. It underlines that Ms. Madougou has no citizenship other than
that of Benin, owns a villa in Cotonou and lives with her children, who are students at the
Lycée français de Cotonou. Lastly, it notes that article 144 of the Code of Criminal Procedure
provides for numerous measures enabling judges to keep accused persons at the disposal of
the courts without having to place them in detention.
74.
The source claims that, despite the Amnesty Act (No. 2019-39) and article 86 of the
Code of Criminal Procedure, the Investigating Commission used the new facts about which
Ms. Madougou was questioned on 6 and 19 August 2021 as the basis for the indictment and
her referral to the Trial Chamber. The source notes that Ms. Madougou was sentenced to
20 years’ imprisonment after a trial that lasted less than 24 hours.
75.
The source reiterates its allegations regarding the search of Ms. Madougou’s
telephones, namely the absence of a record of the seizure and sealing of the items. It notes
that the Government does not indicate any seal numbers or report numbers signed by
Ms. Madougou in which they are recorded.
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76.
Furthermore, the source maintains that the Government’s assertions confirm the
allegations it made concerning category II.
77.
The source also points out that the lack of independence of the Beninese judiciary is
due, in particular, to changes in the composition of the Supreme Council of Justice. It
reiterates its initial allegations and notes that the Government has in no way proved that the
resignation of the judge who attested to this lack of independence was the result of an act of
manipulation by Ms. Madougou. In addition, the investigation was conducted exclusively on
the prosecution’s behalf, and the defence’s requests for witnesses to be heard and for
confrontation were systematically denied.
78.
The source observes that the Government provides no justification for the fact that the
circular on the COVID-19 pandemic and the measures it provides for are still in force, and
that no measures have been taken to facilitate the right of prisoners to communicate with their
families.
Discussion
79.
The Working Group thanks the source and the Government for their submissions.
80.
In determining whether the deprivation of liberty of Ms. Madougou is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has established a prima facie case for breach of international
law constituting arbitrary detention, the burden of proof should be understood to rest upon
the Government if it wishes to refute the allegations.3 Mere assertions by the Government
that lawful procedures have been followed are not sufficient to rebut the source’s allegations.4
Category I
81.
Under article 9 (1) of the Covenant, no one shall be deprived of his or her liberty
except on such grounds and in accordance with such procedure as are established by law.
International law on deprivation of liberty includes the right to be presented with an arrest
warrant, which is procedurally inherent in the right to liberty and security of person and the
prohibition of arbitrary deprivation, under articles 3 and 9, respectively, of the Universal
Declaration of Human Rights, article 9 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.5
82.
Under principle 2 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment, arrest, detention or imprisonment shall only be
carried out strictly in accordance with the provisions of the law and by competent officials
or persons authorized for that purpose.6 Previously, the Working Group has noted that the
notion of arrest “in flagrante delicto” should not be interpreted too broadly, as it creates too
great a risk of arbitrary detention.7 In its jurisprudence, the Working Group has consistently
found that an arrest is made in flagrante delicto 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.8
83.
The Working Group is not convinced that Ms. Madougou was arrested in flagrante
delicto. In particular, it notes that the arrest warrant was issued by the public prosecutor on
1 March 2021, but that Ms. Madougou was not arrested until 3 March 2021. The Government
does not explain why an investigating judge could not have been asked to issue an arrest
warrant. The Working Group therefore concludes that there was no valid warrant for her
arrest.
3 A/HRC/19/57, para. 68.
4 Ibid.
5 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; No. 30/2018, para. 39; and No. 27/2021,
para. 34.
6 See also opinion No. 1/2016, para. 32.
7 E/CN.4/2003/8/Add.3, para.39.
8 Opinion No. 9/2018, para. 38.
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84.
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.9 It must 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. 10 The courts must
examine whether alternatives to pretrial detention, such as release on bail, would render
detention unnecessary.11 In determining whether the conditions governing pretrial detention
have been met, the Working Group focuses on whether the national courts have taken into
account the particular circumstances of the person concerned but does not check whether
there are risks that would make detention necessary.12
85.
In the case at hand, it appears that the investigating judge took into account the
conditions mentioned in article 149 of the Code of Criminal Procedure in ordering pretrial
detention, namely the risks of flight, tampering with evidence and recidivism. However, the
Government provides no explanation as to why alternatives to detention would not have been
sufficient in the circumstances of the case. On the contrary, the Government argues that,
under Beninese law, there is no obligation on the judge who orders pretrial detention to
demonstrate that judicial supervision would be inappropriate, and there is only a requirement
to provide the reasons for the measure taken, which is sufficient to justify the exclusion of
alternative measures. Consequently, and noting that article 144 of the Code of Criminal
Procedure would have provided judges with multiple alternatives to detention in order to
keep Ms. Madougou at the court’s disposal, the Working Group concludes that
Ms. Madougou’s pretrial detention was not in compliance with article 9 (3) of the Covenant.13
86.
The source refers to several alleged shortcomings concerning the interrogation records
of 6 and 19 August 2021 and the seizure and use of Ms. Madougou’s telephones.
87.
While the Working Group considers that it is competent to determine whether
detention has been ordered in accordance with applicable international standards, it is not its
practice to take the place of the national judicial authorities, especially with regard to specific
procedures concerning the collection, recording and preservation of evidence.14 It is therefore
not in a position to decide whether the relevant provisions of national law have been infringed
in this case, as this is a matter for the national courts.15
88.
The source maintains that the interrogation records of 6 and 19 August 2021 are
unlawful and invalid because prosecution is barred in accordance with the Amnesty Act
(No. 2019-39). Although the Government admits that the new facts on which Ms. Madougou
was questioned are covered by the Act, it maintains that they had no detrimental
consequences for Ms. Madougou. However, the source points out that the Investigating
Commission cited those facts to justify the decision to indict Ms. Madougou and refer her to
the Criminal Trial Chamber. The source also states that a letter requesting cancellation of the
questioning on 6 August 2021 was sent to the Investigating Chamber, but no response was
received.
89.
The Working Group notes that the Government has not responded directly to this last
allegation. It recalls that mere assertions by the Government that lawful procedures have been
followed are not sufficient to rebut the source’s allegations. It therefore considers that the
Government has not sufficiently demonstrated that the new facts on which she was
questioned had no consequences for Ms. Madougou. Noting also that each of the parties has
acknowledged that the facts were covered by the Amnesty Act (No. 2019-39), the Working
Group cannot rule out that the legal basis for her detention was at least partly invalid.
9 A/HRC/19/57, paras. 48–58; and opinions No. 5/2019, para. 26; No. 62/2019, paras. 27–29; and
No. 64/2020, para. 58.
10 Human Rights Committee, general comment No. 35 (2014), para. 38.
11 Ibid.
12 Opinions No. 46/2020, para. 62; No. 37/2021, para. 72; and No. 15/2022, para. 66.
13 Opinions No. 3/2019, para. 57; No. 36/2020, para. 51; No. 64/2020, para. 58; and No. 15/2022,
para. 66.
14 Opinions No. 50/2013, para. 38 and No. 18/2018, para. 43.
15 Opinion No. 46/2020, para. 62.
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90.
For these reasons, the Working Group considers Ms. Madougou’s detention to have
no legal basis, contrary to article 9 of the Universal Declaration of Human Rights and article
9 of the Covenant, and thus to be arbitrary under category I.
Category II
91.
According to the source, Ms. Madougou’s arrest and detention are directly related to
her exercise of the rights to freedom of opinion and expression, peaceful assembly and
association, and to take part in the conduct of her country’s public affairs. The Government
asserts that Ms. Madougou was tried and convicted for offences against public order and the
foundations of the rule of law, and not for her political opinions, and that her trial cannot be
described as political.
92.
Article 19 (2) of the Covenant guarantees the right to freedom of expression. This
right includes political discourse, commentary on public affairs and discussion of human
rights, and protects all forms of audiovisual modes of expression.16 It protects the holding
and expression of opinions, including those which are critical of, or not in line with,
government policy.17 Moreover, article 21 of the Covenant guarantees freedom of assembly,
article 22 protects the right to freedom of association, and article 25 guarantees the right to
take part in the conduct of public affairs. Detention resulting from the exercise of rights
protected by the Covenant or the Universal Declaration of Human Rights is arbitrary under
category II.
93.
There are major contradictions between the arguments put forward by the source and
by the Government. The Government maintains that Ms. Madougou was arrested after an
investigation revealed her involvement in the preparation of targeted political assassinations
intended to sabotage the electoral process. The source, meanwhile, maintains that the colonel
who supposedly implicated Ms. Madougou testified that the funds received did not come
from her and totally exonerated her.
94.
For the resolution of this type of conflict, the principles for dealing with evidentiary
issues have been established in the Working Group’s jurisprudence. 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.18 The Government can fulfil this burden of proof by submitting documents
that prove its assertions.
95.
In the present case, the Working Group notes that the Government has not provided
any records of testimony, telephone exchanges or other documents in support of its claims
concerning Ms. Madougou’s alleged involvement in a scheme to finance assassinations. In
addition, the Government highlights the political meetings held by Ms. Madougou and
mentions her opposition to her exclusion from the presidential election, as well as the
opposition of her supporters to the electoral process, which they did not consider inclusive.
The Government also refers to Ms. Madougou’s statements on her social media accounts and
her influence within her political party, the Democrats. Finally, the Working Group notes the
source’s uncontested allegations that Ms. Madougou was arrested as she was leaving a
meeting held by opposition figures.
96.
Consequently, the Working Group considers that the Government has not discharged
the burden of proof and has failed to refute the source’s allegations. The Working Group
wishes to emphasize that it has not taken the place of a domestic court of appeal in reaching
this conclusion, but rather has relied on the information received and the Government’s
assertions to resolve a question directly related to its mandate, namely whether or not
Ms. Madougou was deprived of her liberty on account of her exercise of freedoms protected
by the Covenant.
97.
The source states that Ms. Madougou was arrested for exercising rights protected
under the Covenant, and the Government has not demonstrated that the restrictions provided
16 Human Rights Committee, general comment No. 34 (2011), paras. 11 and 12.
17 Opinions No. 15/2020, para. 65, and No. 16/2020, para. 68.
18 A/HRC/19/57, para. 68.
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for in articles 19 (3) and 25 of the Covenant were applicable in this case. The Working Group
is not convinced that placing Ms. Madougou in detention was necessary to protect a
legitimate interest within the meaning of these provisions, nor that her detention was
proportionate to her activities. The Government has not demonstrated that she directly or
indirectly called for violence, or that she posed a threat to national security, public order,
public health or morals.
98.
In this context, it has been sufficiently established that Ms. Madougou’s arrest and
detention are contrary to articles 19, 21, 22 and 25 of the Covenant and articles 19, 21 and
22 of the Universal Declaration of Human Rights, and therefore arbitrary under category II.
99.
The Working Group refers the 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
100.
The source asserts that Ms. Madougou was denied the right to a hearing by an
impartial and independent tribunal.
101.
The Working Group recalls that the right to a hearing by an impartial and independent
tribunal is protected by article 10 of the Universal Declaration of Human Rights and article
14 of the Covenant.19 The presumption of innocence is set out in article 14 (2) of the Covenant
and article 11 (1) of the Universal Declaration of Human Rights.
102.
In this case, the source claims that, during a televised interview on RFI on 30 April
2021, the President of Benin confirmed that Ms. Madougou was guilty even before she had
been brought to trial. The Government maintains that the President merely recounted the
extremely serious facts of which he was aware in his capacity as the primary guarantor of
public order, without ever expressing an opinion as to Ms. Madougou’s guilt. The Working
Group endorses the opinion expressed by the Human Rights Committee in its general
comment No. 32 (2007) that it is a duty for all public authorities to refrain from prejudging
the outcome of a trial, for example by abstaining from making public statements affirming
the guilt of the accused. 20 The Working Group considers that the Government has not
sufficiently demonstrated that the statement in question did not risk prejudging the outcome
of Ms. Madougou’s trial and violating her right to the presumption of innocence. It also notes
the information received to the effect that Ms. Madougou was sentenced to 20 years’
imprisonment after a trial that lasted less than 24 hours. As the Working Group has previously
stated, holding a trial for a serious criminal offence in a single day suggests that guilt has
been determined before the hearing.21
103.
For the reasons set out above, the Working Group concludes that Ms. Madougou did
not benefit from the right to be presumed innocent.
104.
Furthermore, the source claims that Ms. Madougou was not able to have confidential
meetings with her lawyers while in police custody, as two police officers were constantly
present. The Government asserts that Ms. Madougou’s lawyers had constant access to their
client and her file, and that they regularly visit her in the prison visiting room reserved for
lawyers.
105.
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. 22 The Working Group recalls that legal
consultations may be within sight but not within hearing of the authorities, and all
communications with counsel must remain confidential.23
19 See A/HRC/30/37 and Human Rights Committee, general comment No. 32 (2007).
20 Human Rights Committee, general comment No. 32 (2007), para. 30; see also opinion No. 76/2018.
21 See, for example, opinions No. 75/2017, No. 36/2018 and No. 46/2018.
22 A/HRC/30/37, annex, principle 9 and guideline 8; A/HRC/45/16, para. 51; and Human Rights
Committee, general comment No. 35 (2014), para. 35.
23 Mandela Rules, rule 61(1); Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, principle 18 (3); and A/HRC/30/37, annex, principle 9.
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106.
The Working Group notes the source’s undisputed allegations that Ms. Madougou
spent one night at the Economic and Financial Brigade after her arrest, and was not
incarcerated at the Akpro-Missérété civil prison until 5 March 2021. Although the
Government refers to visiting rooms at the prison reserved for lawyers, it does not mention
whether Ms. Madougou had the possibility to communicate confidentially with her lawyer
while in police custody, nor does it contest the allegation that two police officers were present
during interviews between Ms. Madougou and her lawyers while she was in police custody.
Consequently, the Working Group considers that Ms. Madougou was not able to exercise her
right to communicate confidentially with her lawyer immediately after her arrest.
107.
Furthermore, the authorities must ensure that lawyers have access to files and
documents in sufficient time to enable them to provide effective assistance to their clients,
and such access should be provided at the earliest appropriate time.24 According to the source,
the elements supposedly extracted from one of Ms. Madougou’s telephones did not appear
in the case file consulted by her lawyers 48 hours before the questioning on 6 August 2021.
The source affirms that this missing information made it impossible for them to know the
evidence that would be presented against Ms. Madougou and to prepare her defence.
Although the Government asserts that these allegations are not supported by any evidence, it
does not demonstrate that the elements extracted from one of Ms. Madougou’s telephones
were made available to her counsel in the case file. The Working Group considers that the
Government has not refuted the prima facie credible case presented by the source, according
to which the defence did not have access to the elements extracted from one of
Ms Madougou’s telephones in the case file. Consequently, the Working Group considers that
Ms. Madougou did not benefit from her right to have the time and facilities necessary to
prepare her defence.
108.
The Working Group concludes that there has been a violation of articles 10 and 11 of
the Universal Declaration of Human Rights, article 14 (3) of the Covenant, principle 9 (12)
and guideline 5 (56) 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, and principle 18 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment. The Working Group considers that these violations
are of such gravity as to render Ms. Madougou’s deprivation of liberty arbitrary under
category III.
Concluding remarks
109.
Although the source notes the improvement in Ms. Madougou’s conditions of
detention, the Working Group is concerned by its allegations that Ms. Madougou was unable
to meet with her family at the beginning of her detention. The Working Group urges the
Government to ensure that conditions in all places of deprivation of liberty in Benin are in
line with international standards. In particular, it takes the opportunity to remind the
Government of its obligation under article 10 of the Covenant to ensure that all persons
deprived of their liberty are treated with humanity and respect for their inherent dignity.
Disposition
110.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Reckya Madougou, being in contravention of
articles 3, 9, 10, 11, 19, 21 and 22 of the Universal Declaration of Human Rights and
articles 9, 14, 19, 21, 22 and 25 of the International Covenant on Civil and Political
Rights, is arbitrary and falls within categories I, II and III.
111.
The Working Group requests the Government of Benin to take the steps necessary to
remedy the situation of Ms. Madougou 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.
24 Basic Principles on the Role of Lawyers, principle 21.
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112.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Ms. Madougou immediately and accord her
an enforceable right to compensation and other reparations, in accordance with international
law. In the current context of the global 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 release of Ms. Madougou.
113.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Ms. Madougou and to take appropriate measures against those responsible for the violation
of her rights.
114.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression and the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, for appropriate action.
115.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
116.
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 Ms. Madougou has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Ms. Madougou;
(c)
Whether an investigation has been conducted into the violation of
Ms. Madougou’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 Benin with its international obligations in line with the
present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
117.
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.
118.
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.
119.
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.25
[Adopted on 31 August 2022]
25 Human Rights Council resolution 42/22, paras. 3 and 7.