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.22-17551(E)
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. 56/2022 concerning Rajab Zhileg (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 4 March 2022 the Working Group
transmitted to the Government of Libya a communication concerning Rajab Zhileg. 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/2022/56
General Assembly
Distr.: General
26 October 2022
Original: English
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2
Submissions
Communication from the source
4.
Rajab Zhileg was born in 1974. He is a citizen of Libya, whose passport (number
withheld) was issued by Libyan authorities in Zliten. He is a freelance teacher with a master’s
degree in economics. He was a candidate in the General National Congress election of 7 July
2012. He usually resides in North Ezdo, Zliten, Libya.
Arrest and detention
5.
The source submits that on 21 March 2013, a group of armed men arrested Mr. Zhileg,
along with two other individuals, in front of Al-Huda Prison in central Misrata, where they
were waiting for the release of one of Mr. Zhileg’s relatives. The armed men are believed to
belong to a militia group named Itihad Thuwar Misrata, the Misrata Union of
Revolutionaries.2 This militia group acts as an extension of and at the behest of the Libyan
State. They did not show an arrest warrant or a decision issued by a public authority. The
armed men told Mr. Zhileg that they would take him for a short investigation.
6.
Following their arrest, Mr. Zhileg and the two other individuals were taken to the
headquarters of the military police, where members of Itihad Thuwar Misrata beat and
intimidated them for about six hours. After six hours, members of Itihad Thuwar Misrata
transferred the three men to the Itihad Thuwar Misrata base, where they were detained. On
23 March 2013, Mr. Zhileg’s relative, who was never released from Al-Huda Prison, was
also brought to the Itihad Thuwar Misrata base.
7.
On 16 April 2013, members of Itihad Thuwar Misrata transferred Mr. Zhileg and his
relative to the Anti-Crime Police Detention Facility in Misrata. On 29 April 2013, they were
transferred to Tomina Prison, the most infamous facility close to Misrata, 3 where they
continued to be detained.
8.
Mr. Zhileg’s family only learned about the arrest a few days later, when Mr. Zhileg
managed to use the mobile phone of another detainee at the Itihad Thuwar Misrata base to
call.
9.
Following Mr. Zhileg’s transfer on 16 April 2013, his family was no longer able to
talk to him on the phone. Mr. Zhileg’s family learned from another detainee that Mr. Zhileg
was no longer detained at the Itihad Thuwar Misrata base. As members of Itihad Thuwar
Misrata did not provide the family with any information about Mr. Zhileg’s whereabouts, his
family looked for him at a number of detention facilities, including at the military intelligence
offices, Al-Huda Prison and Al-Sukt Prison. Mr. Zhileg’s family finally found him at the
Anti-Crime Police Detention Facility in Misrata and were allowed to see him for thirty
minutes on 28 April 2013.
10.
One day after the visit by his family, on 29 April 2013, a man who worked at the Anti-
Crime Police Detention Facility informed the family that Mr. Zhileg had been taken to an
unknown place of detention. He advised the family to look for Mr. Zhileg at Tomina Prison.
Authorities at Tomina Prison informed the family that they would have to come on the dates
assigned for family visits. The family was unable to see Mr. Zhileg until 13 July 2013, and
then only for two minutes.
11.
The source reports that on 12 May 2013, Mr. Zhileg’s family filed applications with
the General Prosecutor and the Ministry of Justice, calling for the relative’s and Mr. Zhileg’s
release. However, they did not receive a response. Members of Itihad Thuwar Misrata
threatened Mr. Zhileg’s relatives that they would be kidnapped and would face the same fate
as Mr. Zhileg if they did not stop calling for his release.
12.
On 7 February 2016, Mr. Zhileg’s family filed an application with the General
Prosecutor in Misrata, requesting him to allow Mr. Zhileg to receive medical treatment and
2 The source refers to A/HRC/19/68, p. 2.
3 The source refers to S/2016/209, para. 88; and to the United Nations Support Mission in Libya
(UNSMIL) and Office of the United Nations High Commissioner for Human Rights (OHCHR)
document entitled “Torture and deaths in detention in Libya”, October 2013, p. 5.
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to investigate Mr. Zhileg’s case. On the same day, the General Prosecutor in Misrata wrote a
letter to the director of Tomina Prison, forwarding the application. The General Prosecutor
gave the family a copy of the letter, indicating that he had no control over the authorities of
Tomina Prison. The family handed a copy of the letter to the prison guards, who told them
that they would call to let them know if they decided to take Mr. Zhileg to a doctor. As the
prison guards did not call back, the family followed up with the General Prosecutor in
Misrata, and were told that Mr. Zhileg’s case had been transferred for investigation and that
the General Prosecutor would decide on the case shortly.
13.
In June 2016, Mr. Zhileg’s family submitted an application to the Attorney General at
the Court of Appeal in Misrata to expedite the investigation into his case, who, in turn,
forwarded the application to the General Prosecutor in Misrata. Following the further
deterioration of Mr. Zhileg’s health, on 7 August 2016 the family met with the General
Prosecutor, who wrote a letter to the authorities of Tomina Prison, requesting them to bring
Mr. Zhileg before him immediately. On 8 August 2016, the family learned that the authorities
of Tomina Prison had refused to bring Mr. Zhileg before the General Prosecutor due to his
state of health. Reportedly, Mr. Zhileg was taken by the prison authorities to a hospital on or
about 6 August, 9 August and 12 August 2016, with the family being requested to cover the
fees for medical tests and scans, without being able to see Mr. Zhileg.
14.
On 14 August 2016, the family went again to see the General Prosecutor to inform
him about Mr. Zhileg’s state of health. Following a further request to the authorities of
Tomina Prison, Mr. Zhileg was brought before the General Prosecutor in Misrata for
interrogation on 15 August 2016. On 23 August 2016, the General Prosecutor ordered that
Mr. Zhileg be released without bail from Tomina Prison. Mr. Zhileg was released on the same
day.
15.
Mr. Zhileg has not been informed of any judicial proceedings in the case since his
release. Mr. Zhileg contacted the office of the General Prosecutor to inquire about the status
of his case in December 2016 and requested that it provide him with a copy of the record of
the case. The office of the General Prosecutor responded that Mr. Zhileg’s case was closed
and that the case file was no longer available as it had been sent to the archives of the General
Prosecutor’s office.
16.
Since his release, Mr. Zhileg has been diagnosed with tuberculosis and has been
receiving medical treatment at the National Centre for Tuberculosis Control in Tripoli. Mr.
Zhileg had to travel to Tunisia three times and to Egypt to seek medical and psychological
treatment. Despite his prolonged detention without charge, the conditions of his detention,
the ill-treatment during his detention, and the health conditions that he now suffers from
following his detention, Mr. Zhileg has not received any form of redress and his family have
had to cover the costs of his medical tests and treatment.
Analysis of violations
17.
The source submits that Mr. Zhileg was detained for three years and five months
without ever having been informed of the reasons for his arrest. Militia members beat him
and intimidated him and he was detained in conditions amounting to ill-treatment which have
resulted in a serious deterioration of his health. As a result, the arrest, detention and ill-
treatment of Mr. Zhileg violate, inter alia, the rights and freedoms established in the
International Covenant on Civil and Political Rights and the Universal Declaration of Human
Rights. Mr. Zhileg’s deprivation of liberty is arbitrary, and falls within category I of the
Working Group as it is clearly impossible to invoke any legal basis justifying the deprivation
of liberty.
Arbitrariness of the arrest and detention and failure to provide information about the
reasons for the arrest and detention
18.
According to the source, Mr. Zhileg’s arrest was carried out in violation of the right
to liberty and security of person as set out in article 9 of the Universal Declaration of Human
Rights and article 9 of the International Covenant on Civil and Political Rights. Article 9 (1)
of the Covenant requires that a deprivation of liberty must be lawful and not arbitrary. The
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detention must be reasonable and necessary.4 Article 9 (2) of the Covenant provides that
persons deprived of their liberty are to be informed of the reasons for their arrest and promptly
informed of any charges against them. The right not to be subjected to arbitrary detention
means that every person arrested should be informed, at the time of arrest, of the reasons for
the arrest 5 and that such reasons must be given in a language that the arrested person
understands.6
19.
In the present case, the militia members who arrested Mr. Zhileg failed to inform him
of the reasons for his arrest, and never informed him of any charges against him. They did
not present him with an order issued by a court, and no other legal basis was invoked for his
arrest and detention on 21 March 2013. The militia members only stated that they would take
Mr. Zhileg for “a short investigation”. Mr. Zhileg was then detained for three years and five
months, at different places of detention.
Right to inform the family of the arrest
20.
The source recalls that anyone who is arrested, detained or imprisoned has the right
to inform, or have the authorities notify, someone in the outside world that they have been
taken into custody and where they are being held.7 Detainees also have the right to inform
someone in the outside world if they are transferred from a place of detention.8
21.
The source submits that Mr. Zhileg was not allowed to inform his family or anyone
else about his arrest and detention. He was held in incommunicado detention for the first few
days after his arrest and from 16 to 28 April 2013. The authorities never formally informed
his family about his arrest and whereabouts. The family faced difficulties when visiting Mr.
Zhileg at Tomina Prison, including the fact that they had to be at the prison gate at dawn to
collect a visitor’s ticket and were only allowed to visit him for two minutes in the presence
of prison guards. In addition, the prison guards provoked and pushed the family members
while they were waiting for the two-minute visit.
Right to be brought promptly before a judge
22.
The source recalls that article 9 (3) of the International Covenant on Civil and Political
Rights provides for the right to be promptly brought before a judge or other officer authorized
by law to exercise judicial power. In deciding whether a detainee was brought promptly
before a judge in accordance with article 9 (3) of the Covenant, the Human Rights Committee
has held that in its view 48 hours is ordinarily sufficient to transport the individual and to
prepare for the judicial hearing; any delay longer than 48 hours must remain absolutely
exceptional and be justified under the circumstances.9 Article 9 (3) also includes the right of
a detainee to meet and consult with a lawyer of his or her choice with a view to preparing the
legal defence.10
23.
As outlined above, Mr. Zhileg was never charged, and at no point during his detention
of three years and five months did he see a judge. He was held in incommunicado detention
following his arrest in violation of article 9 (3) of the International Covenant on Civil and
Political Rights.11 Mr. Zhileg was not able to contact a lawyer upon his arrest and has been
denied access to counsel throughout his detention.
4 See, for instance, Mukong v. Cameroon (CCPR/C/51/D/458/1991), para. 9.8.
5 Human Rights Committee, general comment No. 35 (2014), para. 24.
6 Ibid., para. 26.
7 Committee against Torture, general comment No. 2 (2007) on the implementation of article 2, para.
13.
8 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
principle 16 (1); and African Commission on Human and Peoples’ Rights, Guidelines on the
Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (the Luanda Guidelines),
guideline 25 (i).
9 Human Rights Committee, general comment No. 35 (2014), para. 33.
10 See, for instance, Nazarov v. Uzbekistan (CCPR/C/81/D/911/2000), para. 6.2; and Umarova v.
Uzbekistan (CCPR/C/100/D/1449/2006), para. 8.5. See also the Guidelines on the Conditions of
Arrest, Police Custody and Pre-Trial Detention in Africa, guideline 4.
11 Human Rights Committee, general comment No. 35 (2014), para. 35.
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Right to habeas corpus
24.
The source notes that in its general comment No. 35 (2014), the Human Rights
Committee explained that the right to bring proceedings as set out in article 9 (4) of the
International Covenant on Civil and Political Rights “applies in principle from the moment
of arrest” and that “any substantial waiting period before a detainee can bring a first challenge
to detention is impermissible”.12 Mr. Zhileg remained in detention until 23 August 2016, and
has been denied the right to have his detention judicially reviewed ever since his arrest on 21
March 2013.
Treatment and detention conditions
25.
The source argues that Mr. Zhileg was subjected to and detained in conditions of
detention amounting to treatment contrary to article 5 of the Universal Declaration of Human
Rights and article 7 of the International Covenant on Civil and Political Rights, which provide
that no one is to be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.13 According to the Human Rights Committee, the assessment of what constitutes
treatment falling within the meaning of article 7 depends on all the circumstances of the case,
such as the duration and manner of the treatment, its physical or mental effects, and the sex,
age and state of health of the victim.14
Beatings and intimidation
26.
The source submits that beating of detainees constitutes a violation of article 7 of the
International Covenant on Civil and Political Rights.15 Reportedly, men belonging to Itihad
Thuwar Misrata beat and intimidated Mr. Zhileg for about six hours following the arrest and
denied him the right to inform his family of his arrest.
27.
According to the source, Mr. Zhileg was also placed in solitary confinement for five
days in a very small cell, was not allowed to go to the toilet and was given a plastic packet to
use instead of a toilet, and was fed one meal a day consisting of eight spoonfuls of pasta.
28.
Following his release, Mr. Zhileg has suffered from a number of diseases, including
tuberculosis, which he did not suffer from before his imprisonment, and which are attributed
to the conditions of detention and his treatment during that detention.
29.
In the above-mentioned context, the source also refers to the report of the United
Nations Support Mission in Libya (UNSMIL) and the Office of the United Nations High
Commissioner for Human Rights (OHCHR) stating that torture is most frequent immediately
upon arrest and during the first days of interrogation as a means to extract confessions or
other information; and that prolonged detention and interrogation at the hands of armed
brigades without experience or training in the handling of detainees or the conducting of
criminal investigations, and with no effective judicial oversight, are major factors in
facilitating the torture or other ill-treatment of detainees.16
Incommunicado detention
30.
The source notes that the detention of an individual without permitting him or her
contact with the outside world constitutes treatment in violation of article 7 of the
International Covenant on Civil and Political Rights and can constitute inhuman treatment
both of the detainee and of the family concerned.17
12 Ibid., para. 42. See also the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, principle 4; and General Assembly resolution 65/205.
13 See also Human Rights Committee, general comment No. 35 (2014), para. 2.
14 Human Rights Committee, Vuolanne v. Finland, communication No. 265/1987, para. 9.2.
15 Kennedy v. Trinidad and Tobago (CCPR/C/74/D/845/1998), para. 7.7.
16 UNSMIL and OHCHR, “Torture and deaths in detention in Libya”, October 2013, pp. 6–7.
17 See, for instance, African Commission on Human and People’s Rights, Amnesty International,
Comité Loosli Bachelard, Lawyers’ Committee for Human Rights, and Association of Members of the
Episcopal Conference of East Africa v. Sudan, communication No. 48/90, No. 50/91, No. 52/91 and
No. 89/93, para. 54; and Zegveld and Ephrem v. Eritrea, communication No. 250/02, para. 55.
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31.
Following his arrest on 21 March 2013, Mr. Zhileg was not allowed to inform his
family about the arrest, and his family only learned about it several days later when they
managed to speak with him via another detainee’s phone. Mr. Zhileg was again held
incommunicado following his transfer on 16 April 2013, until 28 April 2013 when his family
managed to locate him at the Anti-Crime Police Detention Facility. The periods of
incommunicado detention were combined with Mr. Zhileg’s transfer to three different places
of detention following his arrest on 21 March 2013 up to his transfer to Tomina Prison on 29
April 2013, thereby increasing his vulnerability and anxiety.
Conditions of detention and lack of access to medical care
32.
The source submits that prompt and regular access to independent medical personnel
is an important safeguard against both torture and ill-treatment. Everyone, including an
individual in custody, has the right to the highest attainable standard of physical and mental
health. The right to health extends not only to timely and appropriate health care, but also to
underlying determinants of health, such as adequate food, water and sanitation. Law
enforcement officials and prison authorities are responsible for protecting the health of
individuals in their custody. The protection of detainees requires that each person detained
be afforded prompt and regular access to doctors. The failure to provide access to adequate
health care has been held to violate the rights to respect for dignity and to health, as well as
the prohibition of inhuman or degrading treatment.18
33.
Reportedly, Tomina Prison lacks basic health and safety equipment, including an
adequate ventilation system. Judging from the weight loss, Mr. Zhileg was not provided with
sufficient food. Throughout the first year of Mr. Zhileg’s detention in Tomina Prison, he was
not provided with a blanket. The prison guards continued to refuse to accept the clothes and
food items that family members brought along to Tomina Prison.
34.
As a result of these conditions, Mr. Zhileg has reportedly suffered multiple diseases
since his arrest, including skin infections. When the family visited him on 6 February 2016,
they found him to be very sick. Mr. Zhileg was coughing, and had difficulties breathing, and
his hands and feet were shaking, leading the family to believe that he was suffering from a
serious chest infection. During the visit on 13 February 2016, the family was allowed to
provide medicines to Mr. Zhileg, which made his health condition improve. However, the
family continued to be seriously concerned about his state of health as he had not had access
to medical care and had not been able to see a doctor. The causes of his worsening state of
health had therefore not been determined. For the alleviation of immediate pain, Mr. Zhileg
was dependent on medicines brought by his family.
35.
According to the source, in August 2016 Mr. Zhileg’s health deteriorated further. On
6 August 2016, during the two-minute family visit at Tomina Prison, Mr. Zhileg was
constantly crying, he was unable to speak and his stomach was hurting. On the same day, Mr.
Zhileg’s family learned that he has been taken to Ras Altoba Hospital in Misrata. Although
the family did not find Mr. Zhileg at the hospital, they spoke to the doctor who had examined
him. On 9 August 2016, the family received a call from someone who identified himself as
working at Tomina Prison, requesting that they go to Hikma Hospital in Misrata to cover the
fees for the medical tests and ultrasound scans that Mr. Zhileg had taken. The family went to
Hikma Hospital immediately on 9 August 2016 and paid the fees, but did not find Mr. Zhileg
there. On 13 August 2016, the family visited Mr. Zhileg at Tomina Prison, finding that his
state of health had further deteriorated. Mr. Zhileg sat on a chair and could not walk,
informing his family members that the prison guards had taken him to Ras Altoba Hospital
in Misrata on 12 August 2016 where a doctor had drained fluids from his chest and stomach.
36.
The source notes that the inadequate detention conditions and the lack of access to
medical care reflect the failure of the State to take appropriate measures to ensure that the
detained person’s right to life and to physical and mental integrity are respected.
18 See, for instance, Engo v. Cameroon (CCPR/C/96/D/1397/2005), para. 7.5; and African Commission
on Human and Peoples’ Rights, Media Rights Agenda and Constitutional Rights Project v. Nigeria,
communication No. 105/93, No. 128/94, No. 130/94 and No. 152/96, para. 91.
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State responsibility
37.
The source recalls that the Human Rights Committee has explained the scope of State
responsibility under article 9 of the International Covenant on Civil and Political Rights as
follows: When private individuals or entities are empowered or authorized by a State party
to exercise powers of arrest or detention, the State party remains responsible for adherence
and ensuring adherence to article 9. It must rigorously limit those powers and must provide
strict and effective control to ensure that those powers are not misused, and do not lead to
arbitrary or unlawful arrest or detention.19
38.
According to the source, Mr. Zhileg was arrested by a group of armed men who are
believed to belong to Itihad Thuwar Misrata. He was detained at Tomina Prison, which was
run by Itihad Thuwar Misrata. The Central Bank of Libya disburses salaries to armed groups,
and members of Itihad Thuwar Misrata act as an extension of and at the behest of the State.
The source notes that in their 2015 report on the human rights situation in Libya, UNSMIL
and OHCHR found that armed groups had been given salaries by successive governments
and that some had also officially been given law enforcement and custodial functions under
the justice, defence or interior ministries.20 In their 2013 report on torture and deaths in
detention in Libya, UNSMIL and OHCHR listed the Correction and Rehabilitation Institution
in Tomina, Misrata, among “facilities fully or partially under the authority of armed brigades,
which have been brought under the Ministry of Justice by joining the Judicial Police, or the
Ministry of Defence as part of the military justice system, or the Ministry of the Interior”.21
Reportedly, the Misratan authorities funded Tomina Prison and paid for the prison guards’
salaries.
39.
The source argues that the case exemplifies the ongoing failure of the State to protect
the right to liberty and security of person and the rights of detainees to freedom from torture
and ill-treatment.
Response from the Government
40.
On 4 March 2022, 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 3 May 2022, detailed information about the current situation
of Mr. Zhileg and to clarify the legal provisions justifying his 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 his physical and mental integrity.
41.
The Working Group regrets that the Government did not submit a reply, and neither
did it seek an extension in accordance with paragraph 16 of Working Group’s methods of
work.
Discussion
42.
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.
43.
In determining whether Mr. Zhileg’s detention 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.22 In the present case, the Government has chosen not to challenge
the prima facie credible allegations made by the source.
44.
As a preliminary issue, the Working Group must firstly address the fact that Mr.
Zhileg is no longer detained, as he was released following the order of the General Prosecutor
of 23 August 2016. However, the Working Group notes the uncontested allegations that prior
19 Human Rights Committee, general comment No. 35 (2014).
20 UNSMIL and OHCHR, “Report on the human rights situation in Libya”, 16 November 2015, p. 2.
21 UNSMIL and OHCHR, “Torture and deaths in detention in Libya”, October 2013, p. 5.
22 A/HRC/19/57, para. 68.
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to that, he spent nearly three and a half years detained, without any charges, and was allegedly
ill-treated. The Working Group will therefore proceed with the consideration of the case in
accordance with paragraph 17 (c) of its methods of work.
45.
As a further preliminary issue, the Working Group must address the issue that the
detention of Mr. Zhileg took place at the hands of the Itihad Thuwar Misrata group, which is
not under the de facto control and command of the Government of National Accord, which
is the only Government recognized by the Security Council.23
46.
In this regard, the Working Group recalls the UNSMIL and OHCHR report of 2013,
which clearly states that the Correction and Rehabilitation Institution in Tomina, in Misrata,
and the Majer Correction and Rehabilitation Institution in Zliten, are both under the authority
of the Judicial Police, specifying that these are officially under State authority but noting
albeit that “the effective control by the relevant ministries on such facilities varies”. 24
Moreover, the source has submitted, and the Government has chosen not to contest, that the
Itihad Thuwar Misrata group runs Tomina Prison where Mr. Zhileg was detained, that the
Central Bank of Libya disburses salaries to armed groups, and that members of Itihad Thuwar
Misrata act as an extension of and at the behest of the State (see para. 38 above).
47.
Furthermore, the positive obligation of the State to prevent and punish crime to uphold
its human rights duties remains intact irrespective of whether the actions of the Itihad Thuwar
Misrata group can be attributed to the Government of National Accord. The Working Group
therefore concludes that the Government of Libya, the Government of National Accord, is
fully responsible for the actions of the Itihad Thuwar Misrata group, who carried out the
detention of Mr. Zhileg and who are in control of Tomina Prison where he was held. In
making this finding, the Working Group particularly recalls the conclusion by OHCHR and
UNSMIL in 2018 that “the reliance of transitional authorities on salary payments to and
public praise for armed groups has empowered the latter and entrenched their sense of
impunity”.25
48.
In making these findings, the Working Group also notes that it was at the order of the
Prosecutor General that Mr. Zhileg was released on 23 August 2016.
49.
The Working Group refers the present case to the Working Group on the use of
mercenaries as a means of violating human rights and impeding the exercise of the right of
peoples to self-determination, for appropriate action.
Category I
50.
The Working Group will first consider whether there have been violations under
category I, which concerns deprivation of liberty without a legal basis.
51.
According to the source, and uncontested by the Government, Mr. Zhileg was
detained on 21 March 2013 by a group of armed men belonging to the Itihad Thuwar Misrata
group, who neither showed an arrest warrant nor explained the reasons for the arrest, but
merely stated that they were taking him for “a short investigation”.
52.
The Working Group reiterates that for a deprivation of liberty to be justified, it must
have a legal basis. It is not sufficient for there to be a national law or practice authorizing the
arrest. The authorities must invoke a legal basis consistent with international human rights
standards and apply it to the circumstances of the case.26
53.
International human rights law on detention includes the right to be presented with an
arrest warrant in order to ensure the exercise of effective control by a competent, independent
23 See Security Council resolution 2259 (2015).
24 UNSMIL and OHCHR, “Torture and deaths in detention in Libya”, October 2013, p. 5.
25 OHCHR and UNSMIL, “Abuse behind bars: arbitrary and unlawful detention in Libya”, p. 37.
26 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, para. 44.
A/HRC/WGAD/2022/56
9
and impartial judicial authority, which is procedurally inherent in the right to liberty and
security of person and the prohibition of arbitrary deprivation under articles 3 and 9 of the
Universal Declaration of Human Rights and article 9 (1) of the Covenant, as well as principles
2, 4 and 10 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment.
54.
When Mr. Zhileg was detained on 21 March 2013, there was no arrest warrant issued
in respect of that arrest. The Working Group reiterates that the practice of arresting persons
without a warrant renders their detention arbitrary.27 Any deprivation of liberty without – as
in the present case – a valid arrest warrant, is arbitrary and lacks legal basis, in violation
article 9 of the Covenant.
55.
The uncontested submission of the source is that following his detention, Mr. Zhileg
was not informed of the basis for his arrest at the time of the arrest. The Working Group has
been presented with no valid exceptional grounds to justify a departure from prescribed
requirements under international law which also require that, in order to constitute a legal
basis for deprivation of liberty, the authorities should inform the person detained of the
reasons for their arrest, at the time of arrest, and of the charges against them, promptly.28
Failure to do so violates articles 3 and 9 of the Universal Declaration of Human Rights and
article 9 (2) of the Covenant, as well as principle 10 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment, and renders the
arrest devoid of any legal basis.29
56.
The Working Group also recalls that article 9 (2) of the Covenant requires that anyone
who is arrested not only be informed of the reasons for arrest but also promptly be informed
of any charges against them. The right to be promptly informed of charges concerns notice
of criminal charges, and as the Human Rights Committee has noted in its general comment
No. 35 (2014), this right applies in connection with ordinary criminal prosecutions and also
in connection with military prosecutions or other special regimes directed at criminal
punishment.30 This was denied to Mr. Zhileg, who throughout his nearly three-and-a-half
years of detention was never informed of any charges against him, in a blatant violation of
article 9 (2) of the Covenant.
57.
Furthermore, according to article 9 (3) of the Covenant, anyone arrested or detained
on a criminal charge is to be brought promptly before a judge. As the Human Rights
Committee has stated, 48 hours is ordinarily sufficient to satisfy the requirement of bringing
a detainee “promptly” before a judge following his or her arrest, and any longer delay must
remain absolutely exceptional and be justified under the circumstances. 31 The Working
27 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.
28 See, for example, opinion No. 10/2015, para. 34. See also opinions No. 32/2019, para. 29; No.
33/2019, para. 48; No. 44/2019, para. 52; No. 45/2019, para. 51; No. 46/2019, para.5 1; No. 51/2019,
para. 57; No. 56/2019, para. 78; No. 65/2019, para. 60; No. 71/2019, para. 71; No. 82/2019, para.74;
No. 6/2020, para. 41; No. 13/2020, para. 48; No. 14/2020, para. 51; No. 31/2020, para. 42; No.
33/2020, para. 55; and No. 34/2020, para. 47.
29 Opinions No. 46/2020, para. 40; No. 16/2020, para. 60; No. 46/2019, para. 51; and No. 10/2015, para.
34.
30 Human Rights Committee, general comment No. 35 (2014), para. 29. See also opinions No.
2/2018, No. 4/2018, No. 42/2018, No. 43/2018, No. 79/2018 and No. 49/2019.
31 Human Rights Committee, general comment No. 35 (2014), para. 33; and CAT/C/GAB/CO/1, para.
10. See opinions No. 57/2016, paras. 110–111; No. 2/2018, para. 49; No. 83/2018, para. 47; No.
11/2019, para. 63; No. 20/2019, para. 66; No. 26/2019, para. 89; No. 30/2019, para. 30; No. 36/2019,
para. 36; No. 42/2019, para. 49; No. 51/2019, para. 59; No. 56/2019, para. 80; No. 76/2019, para. 38;
No. 82/2019, para. 76; No. 6/2020, para. 45; No. 14/2020, para. 53; No. 31/2020, para. 45; No.
32/2020, para. 38; No. 33/2020, para. 75; and No. 34/2020, para. 51.
A/HRC/WGAD/2022/56
10
Group finds that in the present case, the Government has violated articles 3 and 9 of the
Universal Declaration of Human Rights, article 9 (3) of the Covenant and principles 11, 37
and 38 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment in respect of Mr. Zhileg.
58.
Article 9 (3) of the Covenant also requires that any pretrial detention should be the
exception rather than the norm, and should be ordered for the shortest time possible.32 In
other words, liberty is acknowledged under article 9 (3) of the Covenant as the core
consideration, with detention merely as an exception.33 Detention pending trial must thus 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.34 Following his
arrest, Mr. Zhileg was kept in detention facilities for varying periods without being brought
before a competent judicial authority, and his overall detention lasted nearly three-and-a-half
years with no charges ever being brought against him or any proceedings commencing. The
Working Group therefore finds a further violation of article 9 (3) of the Covenant.
59.
The source has also argued and the Government has chosen not to contest that Mr.
Zhileg was held incommunicado from 16 to 28 April 2013. The Working Group has
consistently found that holding persons incommunicado violates their right to be brought
before a court under article 9 (3) of the Covenant and to challenge the lawfulness of their
detention before a court under article 9 (4) of the Covenant.35 This view is consistent with
that of the Human Rights Committee, which in its general comment No. 35 (2014)36 stated
that incommunicado detention that prevented prompt presentation before a judge inherently
violated article 9 (3).
60.
The Working Group recalls that judicial oversight of detention is a fundamental
safeguard of personal liberty37 and is essential in ensuring that detention has a legal basis.
Given that Mr. Zhileg was unable to contact anyone and especially his lawyer, which is an
essential safeguard to ensure the ability of any detainee to personally challenge their
detention, his 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.
61.
For the reasons articulated in the preceding paragraphs, the Working Group finds that
the deprivation of liberty of Mr. Zhileg lacks a legal basis and is thus arbitrary and falls under
category I.
62.
The Working Group notes that Mr. Zhileg spent nearly three-and-a-half years in
detention, without a charge or a trial, and that since his release, there have been no indications
of any charges against him being pursued by the authorities. The Working Group observes
that everyone has the right to be tried without undue delay, as required by article 14 (3) (c)
of the Covenant. The Working Group considers that this further strengthens its findings under
category I.
Concluding remarks
63.
The Working Group is very disturbed at the uncontested allegations that Mr. Zhileg
was beaten and intimidated upon his detention, and that he was held in a solitary confinement
for five days in a very small cell, was not allowed to go to the toilet and was given a plastic
packet to use instead of a toilet, and was fed one meal a day consisting of eight spoonfuls of
pasta.
64.
The treatment described reveals a prima facie breach of the absolute prohibition of
torture, which is a peremptory norm of international law as well as of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
32 A/HRC/19/57, paras. 48–58.
33 Ibid., para. 54.
34 Human Rights Committee, general comment No. 35 (2014), para. 38.
35 See, for example, opinions No. 79/2017, No. 46/2017, No. 45/2017, No. 11/2018 and No. 35/2018.
36 See para. 35.
37 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37), para. 3.
A/HRC/WGAD/2022/56
11
(principle 6) and the United Nations Standard Minimum Rules for the Treatment of Prisoners
(the Nelson Mandela Rules) (rule 1). The Working Group refers the present case to the
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, for further consideration.
65.
It is also uncontested that during his nearly three-and-a-half years of detention, Mr.
Zhileg was not allowed proper medical care or provided with sufficient food; he was not
provided with a blanket during his first year of detention. The Working Group feels obliged
to remind the Government that in accordance with article 10 of the Covenant, all persons
deprived of their liberty must be treated with humanity and with respect to the inherent
dignity of the human person, and that denial of medical assistance constitutes a violation of
the Nelson Mandela Rules – rules 24, 25, 27 and 30 in particular.
66.
The source has also submitted, and the Government does not contest, that Mr. Zhileg
has suffered serious health complications due to the treatment endured during his detention
and has even had to seek treatment overseas. The Working Group wishes to emphasize that
the Government is fully responsible for the treatment endured by detainees in custody,
including that of Mr. Zhileg, and refers the case to Special Rapporteur on the right of
everyone to the enjoyment of the highest attainable standard of physical and mental health,
for appropriate action.
67.
The Working Group also notes with concern the treatment of the family in the present
case, who were never notified of Mr. Zhileg’s detention, were allowed only very few visits
of a very short duration, and, when visiting him, were pushed and provoked by the prison
guards. The Working Group further notes the absence of a response by the Government in
relation to these, and finds a violation of principle 19 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment.
Disposition
68.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Rajab Zhileg, being in contravention of articles 3, 8, 9
and 10 of the Universal Declaration of Human Rights and articles 2 (3) and 9 of the
International Covenant on Civil and Political Rights, is arbitrary and falls within
category I.
69.
The Working Group requests the Government of Libya to take the steps necessary to
remedy the situation of Mr. Zhileg without delay and bring it into conformity with the
relevant international norms, including those set out in the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights.
70.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to accord Mr. Zhileg an enforceable right to
compensation and other reparations, in accordance with international law.
71.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Zhileg and to take appropriate measures against those responsible for the violation of his
rights.
72.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Working Group on the use of mercenaries as a means of violating
human rights and impeding the exercise of the right of peoples to self-determination, the
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health, for appropriate action.
73.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
A/HRC/WGAD/2022/56
12
Follow-up procedure
74.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether compensation or other reparations have been made to Mr. Zhileg;
(b)
Whether an investigation has been conducted into the violation of Mr. Zhileg’s
rights and, if so, the outcome of the investigation;
(c)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Libya with its international obligations in line with the
present opinion;
(d)
Whether any other action has been taken to implement the present opinion.
75.
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.
76.
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.
77.
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.38
[Adopted on 1 September 2022]
38 Human Rights Council resolution 42/22, paras. 3 and 7.