Opinion; Subjects: ERITREA, 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.23-09592(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-sixth session, 27 March–5 April 2023
Opinion No. 10/2023 concerning Dawit Isaak (Eritrea)
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 51/8.
2.
In accordance with its methods of work,1 on 19 August 2022 the Working Group
transmitted to the Government of Eritrea a communication concerning Dawit Isaak. 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/2023/10
General Assembly
Distr.: General
1 June 2023
Original: English
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Submissions
Communication from the source
4.
Dawit Isaak is a national of Eritrea and Sweden, born on 27 October 1964. He usually
resides in Asmara and in Gothenburg, Sweden. Mr. Isaak is a playwright, author and
journalist. He is married and has three children.
a.
Context
5.
According to the source, Mr. Isaak emigrated to Sweden from Eritrea in 1987 and he
obtained Swedish citizenship. He returned to Eritrea in 1993 to work in theatre, literature and
journalism, specifically at Setit, one of the country’s first independent newspapers.
6.
In 2000, Mr. Isaak, his wife and their three children allegedly fled Eritrea due to the
political turmoil at the time. Mr. Isaak returned to Eritrea in 2001 to continue his work as a
journalist and advocate for the easing of restrictions on the free press.
7.
According to the source, on 5 May 2001, Setit published a letter by the “Group of 15”
(G-15), in which 15 leading members of the 75-member Central Council of the People’s
Front for Democracy and Justice criticized the policies and actions of the President, Isaias
Afwerki. In the letter, the group demanded democratic reform and that the President convene
the Council’s governing bodies. At the time, Mr. Isaak was reportedly employed by Setit as
a senior staff member and periodic editor-in-chief. The permanent editor-in-chief reportedly
called a staff meeting to discuss the publication of the open letter and Mr. Isaak was allegedly
directly involved in the decision to publish it. In August 2001, it is alleged that the G-15 was
accused by Mr. Afwerki of attempting to destabilize the country. Members of the G-15
reportedly responded to this accusation in another open letter published in Setit in August
2001. They also responded by calling upon the people of Eritrea to assist in solving the
country’s problems.
8.
On 18 September 2001, Mr. Isaak and his colleagues at Setit allegedly protested the
Government’s reported crackdown on independent media and closure of independent
newspapers in the country. On the same day, it is reported that 11 prominent members of the
Central Council of the People’s Front for Democracy and Justice were detained. Mr. Isaak
was allegedly arrested five days later, on 23 September 2001.
9.
According to the source, in October 2001, government officials denied that a
crackdown had taken place. They claimed that Mr. Isaak and other journalists had been sent
to carry out their national service, and that the closures and mass arrests were necessary for
the sake of national unity and in reaction to the newspapers’ failure to comply with laws
covering media licences. The Government also reportedly invoked national security to justify
its limitation of freedom of opinion and expression, and its alleged crackdown on the
independent press and political opposition in Eritrea.
10.
In 2016, the commission of inquiry on human rights in Eritrea urged the Security
Council to refer the situation of Eritrea to the International Criminal Court.
b.
Arrest and detention
11.
The source alleges that Mr. Isaak was arrested at his home in Asmara on 23 September
2001. Two plainclothes policemen reportedly arrested Mr. Isaak after they were invited inside
the house to have breakfast with his family. The policemen allegedly told Mr. Isaak that he
was being taken in for questioning. They did not inform him of the charges, present an arrest
warrant or provide legal justification for the arrest at the time. Mr. Isaak told his family that
he would return home soon.
12.
It is reported that Mr. Isaak was then detained by the Eritrean National Security Office.
He was allegedly initially held in Police Station No. 1 in Asmara, where he was seen in
October 2001 by a government official from Sweden who was there for reasons unrelated to
Mr. Isaak’s detention. Mr. Isaak reportedly complained to the official that he had been
sleeping on the floor while in detention.
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13.
According to the source, in April 2002, Mr. Isaak was hospitalized with post-traumatic
stress disorder resulting from torture he had allegedly been subjected to during his detention
at Police Station No. 1 in Asmara.
14.
In April 2004, Mr. Isaak and other journalists were reportedly being held in secret
security sections of Police Station No. 2 and Police Station No. 6 in Asmara.
15.
Mr. Isaak was then allegedly detained at Karcheli Prison in Asmara until 2005. He
was reportedly last seen there by fellow prisoners in November 2005. It is also alleged that
Mr. Isaak was temporarily released by Eritrean authorities from 19 to 21 November 2005,
during which time he remained under surveillance. On 21 November, Mr. Isaak was
reportedly arrested again, on the street, by Eritrean security agents, without being informed
of the reasons for his arrest. According to the source, Mr. Isaak was never meant to be
released. However, it is alleged that Mr. Isaak thought he was being permanently released
and called his family in Sweden indicating as such. When Mr. Isaak’s release came to the
attention of certain Eritrean government officials, they reportedly ordered his renewed
detention.
16.
In December 2008, Mr. Isaak was allegedly transferred to a maximum-security prison
in Embatkala, 35 kilometres north-east of Asmara, where he became seriously ill. In January
2009, he was reportedly transferred to an air force hospital in Asmara to treat a serious illness
but was later returned to prison.
17.
According to the source, Mr. Isaak’s current location remains unconfirmed, but there
is reason to believe he is being held at Eiraeiro Prison Camp, which is located 16 kilometres
north of Asmara. The source notes that Eiraeiro Prison Camp is part of a network of prisons
where political prisoners are incarcerated in harsh conditions. A former prison guard reported
seeing Mr. Isaak and other G-15 prisoners at Eiraeiro Prison Camp on 6 January 2010. The
source alleges that the Eritrean authorities have never disclosed where Mr. Isaak is detained.
18.
Mr. Isaak has allegedly been subjected to harsh physical and psychological conditions
of detention. It is alleged that Mr. Isaak has been subjected to incommunicado detention since
2001, as he has been denied the right to legal counsel, to communicate with his family and
to access consular assistance. From 2005 to 2010, Mr. Isaak was reportedly held in strict
isolation from other prisoners at Eiraeiro Prison Camp. In 2010, Mr. Isaak was allegedly
placed in solitary confinement in a tiny cell with no windows and has been unable to
communicate with his family or counsel and has not been allowed any contact at all with the
outside world. It is reported that he remains in poor physical and mental condition, that he is
suffering from post-traumatic stress disorder and that he has also been denied the necessary
medical and urgent care to treat his diabetes, from which he has suffered for many years. Mr.
Isaak has allegedly been hospitalized twice, in April 2002 and January 2009, to treat injuries
sustained in prison and his post-traumatic stress disorder.
19.
The source reports that Mr. Isaak was never provided access to legal counsel and as
such has never had legal representation in Eritrea. Mr. Isaak’s family reportedly hired counsel
in Sweden, on 15 October 2010, to represent him. However, the source notes that Mr. Isaak
has never been able to communicate with or receive a visit from his Swedish counsel.
20.
In mid-April 2010, an Eritrean official in Brussels reportedly disclosed that Mr. Isaak
was to be formally charged with a crime and taken to court. However, this was allegedly
denied by the Eritrean Embassy in Brussels.
21.
In June 2016, the Foreign Minister of Eritrea reportedly gave an interview for Radio
France International during which he confirmed that Mr. Isaak was in the Eritrean authorities’
custody and would eventually be tried.
22.
It is alleged that Mr. Isaak’s legal counsel in Sweden has taken steps to exhaust
domestic remedies. At the domestic level, Mr. Isaak’s legal counsel reportedly filed a habeas
corpus petition with the Supreme Court of Eritrea, in 2011, demanding that Mr. Isaak be
brought before a court and requesting a review of the lawfulness of his detention. The petition
reportedly remains unanswered. Mr. Isaak’s legal counsel also reportedly filed complaints
with the Swedish Prosecution Authority, alleging that Mr. Isaak had been the victim of crimes
against humanity, enforced disappearance and torture by the Eritrean authorities. Reportedly,
no investigation has yet been opened.
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23.
At the international level, it is reported that Mr. Isaak’s legal counsel took recourse
through multiple courts and international bodies. In 2012, a submission was allegedly filed
with the African Commission on Human and Peoples’ Rights to enquire about his
whereabouts and the circumstances of his detention and demand his release. As a result, in
2016, the African Commission reportedly issued a final and binding judgment ordering
Eritrea to either release Mr. Isaak or afford him a speedy and fair trial. This decision was
allegedly ignored by the Government of Eritrea. The source notes that, in 2020, the European
Parliament condemned systematic and gross human rights violations in Eritrea and pleaded
for Mr. Isaak’s release from prison.
c.
Legal analysis
24.
The source argues that the arrest and detention of Mr. Isaak is arbitrary under
categories I, II, III and V of the working methods of the Working Group.
25.
As a preliminary matter, the source argues that the physical and psychological harm
endured by Mr. Isaak runs contrary to the principle of human dignity, which constitutes a
core tenet of human rights and fundamental freedoms and which is protected by the
Constitution of Eritrea as an intrinsic part of a society founded on respect for human rights
and fundamental freedoms.
i.
Category I
26.
The source argues that the arrest and detention of Mr. Isaak are arbitrary under
category I as there is no legal basis justifying his deprivation of liberty. The Eritrean
authorities allegedly detained Mr. Isaak without charge or trial and failed to invoke any
national law for his detention, provide legal justification for his arrest, inform him of the
charges against him, present him with a duly issued arrest warrant or provide judicial review.
Mr. Isaak has reportedly been detained for more than 22 years at an undisclosed location,
during which time he has allegedly been denied access to his family, consular assistance and
counsel, effectively resulting in his incommunicado detention and enforced disappearance.
Legality of the arrest
27.
The source recalls article 9 (2) of the Covenant, acceded to by the Government of
Eritrea on 22 January 2002, and the rights guaranteed by articles 8, 9, 10 and 11 of the
Universal Declaration of Human Rights. The source stresses that, according to the findings
of the Working Group, information about the reasons for arrest must be provided immediately
upon arrest, and prompt information about the charges must be provided thereafter.2
28.
The source refers to the implementation of these articles within domestic law,
including the Constitution of Eritrea and the Criminal Procedure Code of Eritrea, which
provide ample safeguards for persons who are arrested and detained without charge or trial.
The source notes that the Criminal Procedure Code pertains specifically to the protection of
individual rights and freedoms.
29.
The source concludes that Mr. Isaak’s detention is arbitrary as he was neither informed
of the charges and legal justification for his arrest nor presented with an arrest warrant, in
contravention of articles 9 and 14 of the Covenant and articles 8, 9, 10, and 11 of the
Universal Declaration of Human Rights. The source argues that the Eritrean authorities
detained Mr. Isaak without charge or trial. They also reportedly failed to invoke any national
law for his detention and provide notice of the reasons for arrest and charges, a duly issued
arrest warrant or judicial review.
Review by an independent and impartial tribunal
30.
The source argues that Mr. Isaak has been denied the opportunity to be heard before
an independent and impartial tribunal and the right to challenge the legality of his detention.
It is alleged that, given the absence of charge or trial, Mr. Isaak’s detention was not the result
of a final decision taken by an Eritrean domestic judicial body. Allegedly, there has been no
2 Opinion No. 30/2017, para. 58.
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assessment of the lawfulness, necessity and proportionality of his detention in accordance
with domestic law and with other relevant international standards set forth in the Universal
Declaration of Human Rights and other relevant international instruments ratified by Eritrea.
3.
Incommunicado detention and enforced disappearance
31.
According to the source, Mr. Isaak has been held in incommunicado detention for
more than 22 years, effectively under enforced disappearance. It is reported that Mr. Isaak
has been consistently denied access to family visits, consular assistance and the right to
counsel. The source submits that Eritrean authorities have never disclosed where Mr. Isaak
is being detained, and that his location therefore remains unknown.
32.
The source recalls that, in an opinion in 2006, the Working Group considered the
deprivation of liberty of an individual held in a secret place of detention to be arbitrary as
that person had not been formally charged with any offence, informed of the duration of the
custodial order, brought before a judicial officer, allowed access to counsel of their choice or
accorded the possibility to challenge the legality of the detention. The source also emphasizes
that no jurisdiction can allow for incommunicado detention where the person has not been
granted rights or access to counsel or relatives, and that detention is arbitrary where there is
no judicial control over the deprivation of liberty and where no legal procedure established
by law is followed.3
33.
The source also recalls the finding that, in most cases, secret detention, as it is outside
any international or national legal regime, also implies that the duration of detention is not
known to the detainee; it rests at the sole discretion of the authorities ordering the detention.
Hence, the very nature of secret detention may result in potentially indefinite periods of
detention, which render this type of detention arbitrary on this additional ground.4
34.
The source notes that the General Assembly, in its resolution 60/148, reminded all
States that prolonged incommunicado detention or detention in secret places might facilitate
the perpetration of torture and other cruel, inhuman or degrading treatment or punishment
and could in itself constitute a form of such treatment.
35.
The source contends that the prolonged, secretive and inhumane detention conditions,
including lack of access to medical care, poor hygiene, ventilation and nutrition, and
overcrowding, amount to torture and other cruel, inhuman or degrading treatment or
punishment in the case of Mr. Isaak. The source argues that indefinite detention entails
inhumane treatment and that, in certain circumstances it may even constitute a form of
torture. The source notes that Mr. Isaak was hospitalized in April 2002 for treatment of his
post-traumatic stress disorder, which resulted from torture he had been subjected to during
his detention at Police Station No. 1 in Asmara.
36.
For these reasons, the source contends that Mr. Isaak’s arrest and detention are
arbitrary under category I.
ii.
Category II
37.
The source argues that the arrest and detention of Mr. Isaak are arbitrary under
category II insofar as his deprivation of liberty resulted from the legitimate exercise of his
rights and freedoms guaranteed by articles 19, 21 and 22 of the Covenant, articles 19, 20 and
21 of the Universal Declaration of Human Rights, and the Constitution of Eritrea.
38.
The source argues that the arbitrary detention and imprisonment of human rights
defenders, such as Mr. Isaak, and the failure of the Government of Eritrea to respect the
fundamental rights and freedoms enshrined in its own Constitution, such as the right to
freedom of expression and the exercise of the right to political expression on the basis of
political opinion, should be subject to heightened scrutiny by the Working Group.
39.
The source recalls that article 19 of the Universal Declaration of Human Rights
specifically protects the right to freedom of opinion and expression. The source submits that
3 Opinion No. 14/2009, para. 19.
4 A/HRC/13/42, para. 33.
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this right includes the freedom to hold opinions without interference and to seek, receive and
impart information and ideas through any media and regardless of frontiers. The source points
out that the right to freedom of opinion and expression is also guaranteed by article 19 of the
Covenant and article 9 of the African Charter on Human and Peoples’ Rights, which the
Government of Eritrea ratified on 14 January 1999.5
40.
The source also recalls that the right to freedom of assembly is guaranteed by article
20 (1) of the Universal Declaration of Human Rights and article 21 of the Covenant.6 The
source notes that article 19 (2) of the Covenant protects the work of journalists and includes
the right of individuals to criticize or openly and publicly evaluate their Governments without
fear of interference or punishment.
41.
The source contends that the right to hold opinions without interference exists even if
they contradict official government policies.7 The source submits that detention is arbitrary
when it is based on expression in the form of letters, petitions, publications, cartoons,
interviews, active citizenship training, television appearances or video footage and that the
use of arbitrary detention to restrict press freedom is a particularly invidious violation of civil
and political rights.8
42.
The source argues that, in this case, Mr. Isaak’s detention was arbitrary as it was based
on his political opinion. It submits that Mr. Isaak was exercising his right to freedom of
opinion and expression by protesting with his colleagues against the Government’s alleged
crackdown on the independent press. Mr. Isaak reportedly demonstrated his political opinion
through his involvement in Setit’s publication of the G-15’s open letter and through other
expressions of political thought. It is alleged that Mr. Isaak was subsequently arrested by the
authorities, on 23 September 2001.
43.
The source also argues that Mr. Isaak’s detention resulted from the peaceful exercise
of his rights under international law. The source further argues that, when detention has
resulted from the active exercise of civil and political rights, there is a strong presumption
that the detention also constitutes a violation of international law on the grounds of
discrimination based on political or other views.9
44.
Further, the source contends that penalizing Mr. Isaak and his colleagues solely for
engaging in political discussion and criticism does not constitute a justifiable restriction under
article 19 (3) of the Covenant. The source cites several opinions in which the Working Group
found that the detention of members of political opposition parties on the basis of their
political opinion was arbitrary.10
45.
The source argues that the Government invoked national security in an attempt to
justify the crackdown on the independent press and political opposition and on freedom of
opinion and expression. In that regard, the source submits that national security can only be
invoked as a justification where a State faces a serious political or military threat. The source
cites the Siracusa Principles on the Limitation and Derogation Provisions in the International
Covenant on Civil and Political Rights (para. 29), under which national security may be
invoked to justify measures limiting certain rights only when they are taken to protect the
existence of the nation, its territorial integrity or political independence against force or threat
of force. The source argues that this high standard under international law was not met by the
Government of Eritrea to justify the detention of Mr. Isaak and his colleagues. The source
argues that the detention of Mr. Isaak was not provided for by law, and Setit’s publication of
a letter critical of the President and his Government could not possibly constitute a threat of
force to the State.
5 See also article 13 of the American Convention on Human Rights and article 11 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights).
6 See also article 11 of the European Convention on Human Rights.
7 Opinion No. 33/2007, para. 16.
8 Opinion No. 14/2009, para. 25.
9 Opinions No. 88/2017, para. 43; No. 13/2018, para. 34; and No. 40/2021, para. 90.
10 Opinions No. 39/1992 and No. 5/1994.
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46.
For these reasons, the source submits that Mr. Isaak’s arrest and detention are arbitrary
under category II.
iii.
Category III
Right to a fair trial and due process
47.
The source argues that the arrest and detention of Mr. Isaak are arbitrary under
category III as he has been denied his rights to due process and a fair trial. According to the
source, the Government’s non-observance of these international norms, as guaranteed under
the Universal Declaration of Human Rights and relevant international instruments ratified by
Eritrea, renders Mr. Isaak’s deprivation of liberty arbitrary.
48.
The source argues that Mr. Isaak was arrested without an arrest warrant and detained
without charge. He was also reportedly denied the right to a fair trial by an independent
judicial authority, the right to a public hearing and the right to be presumed innocent. Further,
he has allegedly been denied the right to habeas corpus and the right to legal counsel during
his detention and has been held in incommunicado detention since 2001.
49.
The source argues that the indefinite detention of Mr. Isaak, for more than 22 years to
date, without trial, violates his right to be presumed innocent. The source also argues that Mr.
Isaak’s incommunicado detention effectively places him outside the protection of the law,
where his rights to the presumption of innocence and to be free from arbitrary deprivation of
liberty are at risk of being further violated.
50.
The source recalls that articles 9 and 14 of the Covenant enshrine the right to due
process. Specifically, the source argues that the authorities have violated article 9 (1) and (4)
of the Covenant. Article 9 (4) stipulates that anyone deprived of their liberty by arrest or
detention should be entitled to proceedings before a court for it to decide without delay on
the lawfulness of their detention and order their release if the detention is not lawful. The
source notes the Working Group’s previous finding that incommunicado detention for one
month at a military camp violated the right of the individual in question to a fair trial because
he had been denied access to his family, his right to counsel and his right to be brought
promptly before a judge.11
51.
The source argues that judicial oversight of detention is a fundamental safeguard of
personal liberty and is essential in ensuring that detention has a legal basis. Given that Mr.
Isaak has reportedly been unable to challenge his detention before a court, the source
contends that his right to an effective remedy under article 8 of the Universal Declaration of
Human Rights and article 2 (3) of the Covenant has been violated. The source alleges that
Mr. Isaak was placed outside the protection of the law, in violation of his right to be
recognized as a person before the law under article 6 of the Universal Declaration of Human
Rights and article 16 of the Covenant. The source argues that State authorities should have
brought Mr. Isaak before a court of law propio motu, within 48 hours of his arrest, and
provided him with the legally required assistance of counsel.
52.
The source also argues that the Government does not dispute that Mr. Isaak has not
been brought before a judge during his entire detention. It is alleged that, by refusing to bring
him promptly before a judge to allow him to challenge the legality of his detention, and by
denying his release pending trial, the authorities violated article 9 (3) and (4) of the Covenant
and principles 11, 32 and 36–39 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment. The source submits that the Government
bears the burden of proof to rebut these allegations but has failed to do so, and that mere
assertions by the Government that lawful procedures have been followed are not sufficient
to rebut the submitted allegations.
53.
The source recalls that the right to be presumed innocent is enshrined in article 11 of
the Universal Declaration of Human Rights, article 14 (2) of the Covenant and principle 36
of the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment. The source emphasizes the jus cogens nature of this right and adds that the
11 Opinion No. 54/2016.
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automatic extension of pretrial detention without regard to due process and fair trial rights is
also indicative of the violation of the presumption of innocence.12 The source recalls the
Working Group’ finding that the denial of an individual’s right to legal assistance, inter alia,
violates the individual’s due process and fair trial rights, as well as the right to be presumed
innocent.13
54.
According to the source, the authorities have further violated articles 6 and 7 of the
African Charter on Human and Peoples’ Rights, which enshrine the right to liberty and
security and the right to have a cause heard, including the right to appeal, the right to be
presumed innocent until proved guilty by a competent court or tribunal, the right to legal
representation and the right to be tried within a reasonable time by an impartial court or
tribunal.
55.
The source recalls that, according to the African Commission on Human and Peoples’
Rights, the lawfulness and necessity of holding someone in custody must be determined by
a court or other appropriate judicial authority. The source argues that Mr. Isaak was not
promptly charged with legitimate criminal offences, there was no legal justification for his
detention and the State did not initiate legal proceedings in compliance with fair trial
standards, as stipulated by the African Commission in its Resolution on the Right to Recourse
and Fair Trial 1992 and elaborated upon in its Principles and Guidelines on the Right to a
Fair Trial and Legal Assistance in Africa.
56.
The source argues that the authorities violated articles 1 and 29 of the Criminal
Procedure Code of Eritrea. The source explains that article 1 was amended by Proclamation
No. 5/1991 in order “to uphold the principle that any accused person is presumed innocent
until proven guilty beyond reasonable doubt by a corroboration of proof; to forward a fair
and speedy investigation and trial; and to guarantee proper usage of the law”. Article 29 of
the same code specifies that, unless otherwise expressly provided by law, no person may be
detained or arrested except by a warrant of a court.
57.
The source claims that Mr. Isaak’s due process rights were violated under the
Constitution of Eritrea. Specifically, article 17 of the Constitution provides that every person
who is held in detention shall be brought before a court of law within 48 hours of arrest or,
if this is not reasonably possible, as soon as possible thereafter, and no such person shall be
held in custody beyond such period without the authority of the court. Article 17 further
enshrines the right of every person to petition a court of law for a writ of habeas corpus and
specifies that, where the arresting officer fails to bring the person arrested before the court
and provide the reason for the arrest, the court shall accept the petition and order the release
of the prisoner.
58.
The source reiterates that, while the decision to detain Mr. Isaak should be open to
periodic review so that the grounds justifying his detention can be assessed, such review is
not possible in Mr. Isaak’s case as he was never charged with any crime under Eritrean law.
The source concludes that Mr. Isaak’s due process and fair trial rights were violated.
Right to legal counsel
59.
The source emphasizes that the right to legal counsel is essential for the assurance of
a fair trial. It argues that Mr. Isaak was denied access to counsel, contrary to article 7 (1) (c)
of the African Charter on Human and Peoples’ Rights, which provides for the right to legal
representation, including by counsel of a person’s own choosing. The African Commission
on Human and Peoples’ Rights has further found that non-compliance with this article is an
unacceptable infringement of this right.14
60.
The source alleges that Mr. Isaak has never been granted access to legal counsel. It is
reported that his family instructed counsel in Sweden to represent him on 15 October 2010
and that he has been represented by counsel in Sweden since then. However, Mr. Isaak has
12 Opinions No. 18/2018, No. 26/2018 and No. 87/2018.
13 Opinion No. 89/2018.
14 African Commission on Human and Peoples’ Rights, Constitutional Rights Project v. Nigeria,
communication No. 87/93, Judgment, 1995.
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allegedly never been able to communicate with or receive a visit from said counsel. Mr. Isaak
was also denied access to any legal representation in Eritrea.
61.
The source concludes that the Government’s alleged non-observance of the
international norms relating to the right to a fair trial, pursuant to the Universal Declaration
of Human Rights, the Covenant and relevant international instruments ratified by Eritrea, is
of such gravity as to render Mr. Isaak’s deprivation of liberty arbitrary under category III.
iv.
Category V
62.
The source argues that the arrest and detention of Mr. Isaak are arbitrary under
category V as he was deprived of his liberty on discriminatory grounds based on both his
political opinion and expression. The source submits that Mr. Isaak is a prisoner of
conscience imprisoned for airing his views regarding the governance of the country.
63.
The source underlines that, in 2002, the Working Group found the deprivation of
liberty of the G-15 members to be related to the political debate at the time concerning the
way that the country was governed by the President. The source notes that the Government’s
argument that the individuals conspired to overthrow the regime led by the President did not
convince the Working Group because it lacked concrete evidence to substantiate its claims.
At that time, the Working Group emphasized that the detainees had been arrested and
detained for expressing political opinions and convictions and for exercising their right to
freedom of opinion and expression guaranteed under article 19 of the Universal Declaration
of Human Rights. It also considered that they had been deprived of their liberty as
demonstrated by their isolation in one or more secret locations where they had no contact
whatsoever with lawyers or their families. The source submits that the Working Group also
confirmed the absence of any court ruling on the legality of the detention of the individuals
named in the opinion. The source recalls the Working Group’s conclusion that all this
constitutes a series of violations of such gravity as to confer on their deprivation of liberty an
arbitrary character, which contravenes articles 9 and 10 of the Universal Declaration of
Human Rights and principles 10 to 12 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment.15
64.
The source emphasizes that the Working Group specifically requested the
Government of Eritrea to take the necessary steps to remedy the situation of those individuals
by bringing it into conformity with the standards and principles set forth in the Universal
Declaration of Human Rights, and to take adequate initiatives with a view to becoming a
State party to the International Covenant on Civil and Political Rights, but that none of these
recommendations were adhered to by the Government.
65.
The source argues that the detention of Mr. Isaak was based on the exercise of his
fundamental political rights, which clearly constitutes discrimination based on his political
views. The source recalls that the Working Group has previously inferred discrimination on
the basis of political opinion in contexts involving widespread political imprisonment or the
history between the Government and detainee in question. The source concludes that Mr.
Isaak’s detention represents a clear case of targeting on the basis of political opinion. Mr.
Isaak reportedly worked for the Setit newspaper and supported the publication of the G-15
letter, in which the group criticized government policies. He and his Setit colleagues were
allegedly arrested only days later. The source further contends that the crackdown on G-15
members and journalists, including Mr. Isaak, was widespread in Eritrea.
66.
For these reasons, the source submits that Mr. Isaak’s arrest and detention are arbitrary
under category V.
Response from the Government
67.
On 19 August 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 17 October 2022, detailed information about the
current situation of Mr. Isaak and to clarify the legal provisions justifying his continued
15 Opinion No. 3/2002.
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10
detention, as well as its compatibility with the obligations of Eritrea under international
human rights law. Moreover, the Working Group called upon the Government of Eritrea to
ensure the physical and mental integrity of Mr. Isaak.
68.
The Working Group regrets that the Government did not submit a reply or seek an
extension in accordance with paragraph 16 of the Working Group’s methods of work.
Discussion
69.
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.
70.
In determining whether Mr. Isaak’s detention 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 a 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.16 In the present case, the Government has chosen not to
challenge the prima facie credible allegations made by the source.
71.
The Working Group wishes to reaffirm that States have the obligation to respect,
protect and fulfil all human rights and fundamental freedoms, including the liberty of person,
and that any national law allowing deprivation of liberty should be made and implemented
in conformity with the relevant international standards set forth in the Universal Declaration
of Human Rights, the Covenant and other applicable international and regional instruments.17
Consequently, even if the detention is in conformity with national legislation, regulations and
practices, the Working Group is entitled and obliged to assess the circumstances of the
detention and the law itself to determine whether such detention is also consistent with the
relevant provisions of international human rights law.18
72.
The source argues that the arrest and detention of Mr. Isaak are arbitrary under
categories I, II, III and V of the working methods of the Working Group. The Working Group
will examine these allegations in turn.
Category I
73.
According to the information provided by the source, Mr. Isaak was arrested without
being shown an arrest warrant or provided with the reasons for his arrest. Further, he was
reportedly not informed of the charges against him and has been detained for more than 22
years at an undisclosed location, during which time he has allegedly been denied access to
visits from his family, consular assistance and counsel, effectively resulting in his
incommunicado detention and enforced disappearance. The Government has chosen not to
contest these allegations although it had the opportunity to do so. In these circumstances, the
Working Group is inclined to accept the prima facie credible allegations made by the source.
74.
The Working Group recalls that a detention is considered arbitrary under category I if
it lacks legal basis. As it has previously stated, for a deprivation of liberty to have a legal
basis, it is not sufficient that there is a law which may authorize the arrest. The authorities
must invoke that legal basis and apply it to the circumstances of the case. This is typically19
done through an arrest warrant or order (or equivalent document).20 In addition, article 9 (2)
of the Covenant provides that anyone who is arrested shall be informed, at the time of arrest,
of the reasons for the arrest and shall be promptly informed of any charges. The reasons for
16 A/HRC/19/57, para. 68.
17 See, for example, General Assembly resolution 72/180 and Human Rights Council resolutions 41/2
and 41/17. See also Commission on Human Rights resolutions 1991/42 and 1997/50; Human Rights
Council resolutions 6/4 and 10/9; and opinions No. 41/2014, para. 24; No. 42/2019, para. 43; No.
13/2020, para. 39; and No. 23/2022, para. 58.
18 Opinions No. 82/2018, para. 25; No. 76/2019, para. 36; No. 14/2020, para. 45; and No. 23/2022, para.
58.
19 Human Rights Committee, general comment No. 35 (2014), para. 23; see also opinions No. 88/2017,
para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.
20 Human Rights Committee, general comment No. 35 (2014), para. 27; and opinion No. 30/2017, paras.
58 and 59.
A/HRC/WGAD/2023/10
11
arrest must be provided immediately upon arrest and must include not only the general legal
basis of the arrest, but also enough factual specifics to indicate the substance of the complaint,
such as the wrongful act and the identity of an alleged victim.21 The Working Group notes
that Mr. Isaak was not arrested in flagrante delicto, when the opportunity to obtain a warrant
would not be typically available.
75.
The Working Group finds that, in order to invoke a legal basis for the deprivation of
liberty, the authorities should have presented an arrest warrant or equivalent document to Mr.
Isaak, informed him of the reasons for his arrest at the time of the arrest and promptly
informed him of the charges against him. Their failure to do so violates articles 3 and 9 of
the Universal Declaration of Human Rights and article 9 (1) and (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 his arrest devoid of any legal basis.
76.
The source argues that Mr. Isaak has been denied the opportunity to be heard before
an independent and impartial tribunal as well as the right to challenge the legality of his
detention. It is alleged that, given the absence of charge or trial, Mr. Isaak’s detention was
not the result of a final decision taken by an Eritrean domestic judicial body. This allegation
remains unrebutted by the Government.
77.
The Working Group notes that enforced disappearances are prohibited by
international law and constitute a particularly aggravated form of arbitrary detention.22 In
fact, the Working Group has repeatedly asserted that holding persons at secret, undisclosed
locations and in circumstances undisclosed to their family violates their right to contest the
legality of their detention before a court or tribunal under article 9 (4) of the Covenant.
Judicial oversight of any detention is a central safeguard for personal liberty and is critical in
ensuring that the detention has a legitimate basis.
78.
The Working Group recalls article 10 of the Declaration on the Protection of All
Persons from Enforced Disappearance, which provides that individuals deprived of their
liberty must be held in a place of detention that is officially recognized, and that States must
ensure that no one is held secretly in detention.
79.
In the circumstances attending the detention of Mr. Isaak at a location unknown to his
family and lawyers, the Working Group finds that he was unable to challenge the legality of
his detention before a court under article 9 (4) of the Covenant. Consequently, his right to an
effective remedy under article 8 of the Universal Declaration of Human Rights and article 2
(3) of the Covenant were violated.
80.
The Working Group also recalls that principle 15 of the Body of Principles provides
that communication of the detained or imprisoned person with the outside world, and in
particular the person’s family or counsel, shall not be denied for more than a matter of days.
The detention of Mr. Isaak in a location unknown to his family and lawyer to this day entails
a wilful refusal to disclose his fate or whereabouts. This lacks any valid legal basis under any
circumstance. It is also inherently arbitrary as it places such person outside the protection of
the law, in violation of article 6 of the Universal Declaration of Human Rights and article 16
of the Covenant. The Working Group refers this matter to the Working Group on Enforced
or Involuntary Disappearances.
81.
Consequently, the Working Group finds that the Government failed to establish any
legal basis for Mr. Isaak’s detention, rendering his detention arbitrary under category I.
Category II
82.
According to the source, Mr. Isaak was arrested and detained as a result of his
legitimate exercise of the rights and freedoms guaranteed by articles 19, 20 and 21 of the
Universal Declaration of Human Rights and articles 19, 21 and 22 of the Covenant. In
particular, the source alleges that Mr. Isaak was exercising his right to freedom of opinion
and expression by protesting with his colleagues against the Government’s alleged
21 Opinion No. 85/2021, para. 69.
22 See opinions No. 5/2020, No. 6/2020, No. 11/2020, No. 13/2022 and No. 65/2022. See also Human
Rights Committee, general comment No. 35 (2014), para. 17.
A/HRC/WGAD/2023/10
12
crackdown on independent press, through his involvement in Setit’s publication of the G-
15’s open letter and through other expressions of political thought. These allegations were
put to the Government, which chose not to contest them.
83.
The freedom of expression guaranteed under article 19 of the Covenant includes the
right to seek, receive and impart information and ideas of all kinds, regardless of frontiers,
and this right includes the expression and receipt of communications of every form of idea
and opinion capable of transmission to others, including political opinions.23 Article 19 (2)
of the Covenant protects the holding and expression of opinions, including those that are
critical of, or not in line with, government policy. 24 The Human Rights Committee has
specifically recognized that article 19 (2) of the Covenant protects the work of journalists and
includes the right of individuals to criticize or openly and publicly evaluate their Government
without fear of interference or punishment.25
84.
The Working Group considers that Mr. Isaak’s conduct fell within the right to freedom
of opinion and expression protected under article 19 of the Universal Declaration of Human
Rights and article 19 of the Covenant and that he was detained for exercising such right.
85.
According to the source, the Government invoked national security in an attempt to
justify the crackdown on the independent press and political opposition and on freedom of
opinion and expression in Eritrea. The Working Group notes that, in its resolution 12/16, the
Human Rights Council called upon States to refrain from imposing restrictions under article
19 (3) that are not consistent with international human rights law. The Government has not
presented any evidence that the permissible restrictions under article 19 of the Covenant
somehow apply in the case at hand.
86.
Further, according to the source, at the time of his arrest, Mr. Isaak was a senior staff
member and periodic editor-in-chief of Setit, which published the G-15 letter. He was
reportedly detained five days after having protested with his Setit colleagues the
Government’s reported crackdown on independent media and closure of independent
newspapers in the country. These allegations were put to the Government, which chose not
to contest them.
87.
In the absence of any response from the Government, the Working Group finds
credible the source’s allegation that Mr. Isaak was also arrested as a result of his exercise of
the right to freedom of association and peaceful assembly.
88.
The Working Group further considers that Mr. Isaak’s direct involvement in the
decision to publish an open letter criticizing government policies concerned matters of public
interest.26 The Working Group therefore concludes that Mr. Isaak was detained for exercising
his right to take part in the conduct of public affairs under article 21 of the Universal
Declaration of Human Rights and article 25 of the Covenant.27
89.
The Working Group thus concludes that Mr. Isaak’s detention resulted from the
peaceful exercise of his right to freedom of opinion and expression, freedom of association
and peaceful assembly, as well as his right to take part in the conduct of public affairs,
contrary to articles 19, 20 and 21 of the Universal Declaration of Human Rights and articles
19, 21, 22 and 25 of the Covenant. His detention is therefore arbitrary under category II. The
Working Group refers this 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.
23 Human Rights Committee, general comment No. 34 (2011), para. 11.
24 Opinions No. 79/2017, para. 55; and No. 8/2019, para. 55.
25 Marques de Morais v. Angola (CCPR/C/83/D/1128/2002), para. 6.7.
26 Opinion No. 3/2002, paras. 11 and 12.
27 Human Rights Committee, general comment No. 25 (1996), para. 8 (citizens take part in the conduct
of public affairs by exerting influence through public debate). See also opinions No. 46/2011, No.
42/2012, No. 26/2013, No. 36/2018, No. 45/2019, No. 59/2019, No. 89/2020, No. 46/2021 and No.
71/2021.
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13
Category III
90.
Given its finding that the deprivation of liberty of Mr. Isaak is arbitrary under category
II, the Working Group wishes to emphasize that no trial of Mr. Isaak should take place.
91.
The source has submitted, and the Government has chosen not to contest, that Mr.
Isaak has been denied access to his legal counsel throughout his detention. Although his
family was able to secure a lawyer in Sweden, Mr. Isaak has not been able to access legal
representation in Eritrea or to communicate with any lawyer since his arrest, including the
lawyer secured by his family in Sweden.
92.
The Working Group recalls that all persons deprived of their liberty have the right to
legal assistance by counsel of their choice at any time during their detention, including
immediately after their apprehension, and that such access is to be provided without delay.28
The Working Group notes that the right to communicate with counsel, as encapsulated in
article 14 (3) (b) of the Covenant, entails the requirement that counsel be able to meet clients
in private and to communicate with them in conditions that fully respect the confidentiality
of their communications.29 The Working Group finds that the failure to allow Mr. Isaak
access to or communication with a lawyer since the beginning of and throughout his detention
violates his right to have adequate time and facilities for the preparation of his defence and
to communicate with counsel of his own choosing, as guaranteed by article 14 (3) (b) of the
Covenant.
93.
Under articles 9 (3) and 14 (3) (c) of the Covenant, anyone arrested or detained on a
criminal charge is entitled to trial within a reasonable time and without undue delay. Given
the Working Group’s finding that Mr. Isaak’s detention was arbitrary under category II
because it resulted from the peaceful exercise of his rights, any delay in trying his case is
unreasonable.30
94.
The Working Group considers that Mr. Isaak’s pretrial detention for more than 22
years is unacceptably long and constitutes an egregious violation of articles 9 (3) and 14 (3)
(c) of the Covenant and principle 38 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment. The Working Group also considers
that such prolonged pretrial detention violates Mr. Isaak’s right to be presumed innocent as
enshrined in article 11 of the Universal Declaration of Human Rights, article 14 (2) of the
Covenant and principle 36 of the Body of Principles.
95.
The Working Group notes the source’s uncontested allegations that Mr. Isaak was
subjected to acts of torture through his secret and prolonged detention in inhumane detention
conditions, including poor hygiene, lack of access to medical care, ventilation and nutrition,
and overcrowding. The source also alleges that Mr. Isaak was hospitalized in April 2002 to
treat his post-traumatic stress disorder resulting from torture he had been subjected to during
his detention at Police Station No. 1 in Asmara. The source submits that Mr. Isaak was held
in strict isolation from other prisoners at Eiraeiro Prison Camp from 2005 to 2010, at which
time he was placed in solitary confinement in a tiny cell with no windows. Reportedly, he
has been unable to communicate with his family or counsel, or allowed any contact at all
with the outside world. The Working Group notes that none of these allegations have been
refuted by the Government.
96.
The Working Group recalls that torture or ill-treatment of detainees not only is a grave
violation of human rights, but also seriously undermines the fundamental principles of a fair
trial as it can compromise the ability to defend oneself, especially in the light of the right not
28 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, principle 9 and guideline 8; Human
Rights Committee, general comment No. 35 (2014), para. 35; A/HRC/45/16, paras. 50–55; and
A/HRC/48/55, para. 56. See also A/HRC/27/47, para. 13.
29 Human Rights Committee, general comment No. 32 (2007), para. 34. See also Gridin v. Russian
Federation (CCPR/C/69/D/770/1997), para. 8.5; Siragev v. Uzbekistan (CCPR/C/85/D/907/2000),
para. 6.3; and Khomidov v. Tajikistan, (CCPR/C/81/D/1117/2002), para. 6.4. See also, for example,
opinions No. 42/2018, No. 83/2018 and No. 67/2020.
30 Opinions No. 16/2020, para. 77; No. 10/2021, para. 78; and No. 40/2022, para. 88.
A/HRC/WGAD/2023/10
14
to be compelled to testify against oneself or to confess guilt.31 Detainees should be protected
from any practices that violate their right to be free from any act that could cause severe pain
or suffering, whether physical or mental, and that is inflicted intentionally on a person. This
has been clearly stated in the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. The right to freedom from torture and other ill-
treatment or punishment is absolute. This applies in all circumstances, and it may never be
restricted, including in times of war or states of emergency. No exceptional circumstances
whatsoever, including threats of terrorism or other violent crime, may be invoked to justify
torture or other ill-treatment. Such prohibition applies irrespective of the offence allegedly
committed by the accused person.32
97.
Moreover, according to rule 45 of the United Nations Standard Minimum Rules for
the Treatment of Prisoners (the Nelson Mandela Rules), the imposition of solitary
confinement must be accompanied by certain safeguards. Solitary confinement must only be
used in exceptional cases as a last resort, for as short a time as possible, subject to independent
review, and authorized by a competent authority. These conditions do not appear to have
been observed in the present case. Prolonged solitary confinement (a time period in excess
of 15 consecutive days) is prohibited under rules 43 (1) (b) and 44 of the Nelson Mandela
Rules. The Working Group refers the present case to the Special Rapporteur on torture and
other cruel, inhuman or degrading treatment or punishment.
98.
In the light of the above, the Working Group concludes that the violations of the right
to a fair trial of Mr. Isaak under article 10 of the Universal Declaration of Human Rights and
article 14 of the Covenant are of such gravity as to give his detention an arbitrary character
under category III.
Category V
99.
According to the source, Mr. Isaak is a human rights defender who was arrested and
detained on discriminatory grounds, based on both political opinion and expression. The
source submits that Mr. Isaak is a prisoner of conscience imprisoned for airing his views
regarding the governance of the country. The Government has chosen not to rebut these
allegations.
100.
In the discussion above concerning category II, the Working Group established that
Mr. Isaak’s detention resulted from the peaceful exercise of his human rights under
international law. When a detention results from the active exercise of civil and political
rights, there is a strong presumption that the detention also constitutes a violation of
international law on the grounds of discrimination based on political or other views.33
101.
In addition, under the Declaration on the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights
and Fundamental Freedoms, everyone has the right, individually and in association with
others, to promote and to strive for the protection and realization of human rights and to draw
public attention to the observance of human rights (arts. 1 and 6 (c)).34 The Working Group
has determined that detaining individuals on the basis of their activities as human rights
defenders violates their right to equality before the law and equal protection of the law under
article 7 of the Universal Declaration of Human Rights and article 26 of the Covenant.35
102.
The Working Group therefore concludes that Mr. Isaak was deprived of his liberty on
discriminatory grounds, that is, owing to his status as a human rights defender, and on the
basis of his political or other opinion in seeking to hold the authorities to account. His
deprivation of liberty thus violates articles 2 and 7 of the Universal Declaration of Human
Rights and articles 2 (1) and 26 of the Covenant, and is arbitrary under category V.
31 Opinions No. 22/2019, para. 78; No. 26/2019, para. 104; and No. 56/2019, para. 88.
32 Human Rights Committee, general comment No. 20 (1992), para. 3.
33 Opinions No. 88/2017, para. 43; No. 13/2018, para. 34; and No. 59/2019, para. 79.
34 See also General Assembly resolution 74/146, para. 12.
35 Opinions No. 48/2017, No. 75/2017, No. 45/2018, No. 9/2019, No. 83/2019, No. 15/2020 and No.
66/2021.
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15
Concluding remarks
103.
The Working Group expresses its utmost concern regarding the source’s unrebutted
allegation that Mr. Isaak has been in pretrial detention for more than 22 years without being
charged and without any prospect of trial. The Working Group expresses further concern
about Mr. Isaak’s reported poor physical and mental condition and post-traumatic stress
disorder, as well as the denial of necessary medical and urgent care to treat his diabetes, from
which he has suffered for many years. The Working Group recalls that, according to article
10 (1) of the Covenant and rules 1, 24, 27 and 118 of the Nelson Mandela Rules, all persons
deprived of their liberty must be treated with humanity and with respect for their inherent
dignity, including by being allowed to enjoy the same standards of health care that are
available in the community. In particular, rule 27 (1) requires that all prisons ensure prompt
access to medical attention in urgent cases, and that prisoners who need specialized treatment
or surgery be transferred to specialized institutions or civil hospitals.
104.
Further, the Working Group notes with alarm that the location of Mr. Isaak remains
unknown to this day. It urges the Government to provide information about the situation and
whereabouts of Mr. Isaak without delay, in particular the exact location of his ongoing
deprivation of liberty.
105.
On 18 May 2018, the Working Group issued a request to the Government of Eritrea
to invite the Working Group to conduct a country visit. The Working Group reiterates that it
would welcome the opportunity, at the earliest convenience to the Government, to conduct a
visit to Eritrea in order to engage with the Government in a constructive manner and to offer
its assistance in addressing instances of arbitrary deprivation of liberty.
Disposition
106.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Dawit Isaak, being in contravention of articles 2, 3, 7, 8,
9, 10, 11, 19, 20 and 21 of the Universal Declaration of Human Rights and articles 2,
9, 14, 16, 19, 21, 22, 25 and 26 of the International Covenant on Civil and Political
Rights, is arbitrary and falls within categories I, II, III, and V.
107.
The Working Group requests the Government of Eritrea to take the steps necessary to
remedy the situation of Mr. Isaak 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.
108.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to unconditionally release Mr. Isaak immediately and
accord him an enforceable right to compensation and other reparations, in accordance with
international law.
109.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Isaak and to take appropriate measures against those responsible for the violation of his
rights.
110.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Working Group on Enforced or Involuntary Disappearances, the
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, the Special Rapporteur on the promotion and protection of the right to freedom
of opinion and expression and the Special Rapporteur on freedom of peaceful assembly and
of association, for appropriate action.
111.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
112.
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:
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16
(a)
Whether Mr. Isaak has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Isaak;
(c)
Whether an investigation has been conducted into the violation of Mr. Isaak’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 Eritrea with its international obligations in line with the
present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
113.
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.
114.
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.
115.
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.36
[Adopted on 28 March 2023]
36 Human Rights Council resolution 51/8, paras. 6 and 9.