Opinion; Subjects: TOGO, 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.23-17606 (E) 100124 100124
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on
Arbitrary Detention at its ninety-seventh
session, 28 August–1 September 2023
Opinion No. 39/2023, concerning Abdoul Aziz Goma (Togo)
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, on 19 May 2023 the Working Group
transmitted to the Government of Togo a communication concerning Abdoul Aziz Goma.1
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/2023/39
General Assembly
Distr.: General
22 September 2023
English
Original: French
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1.
Submissions
(a)
Communication from the source
4.
Abdoul Aziz Goma is a businessman of Togolese origin and Irish nationality. He was
48 years old at the time of his arrest and usually resides in Ireland and the United Kingdom
of Great Britain and Northern Ireland.
(i)
Background
5.
The source explains that, in recent years, Togo has implemented measures to repress
political opposition and the exercise of fundamental rights, such as the rights to freedom of
expression, association and assembly. It is alleged that critics and dissidents are frequently
detained or subjected to harassment and criminal sanctions for speaking out publicly against
government policies and practices.2 Since 2017, Togo has reportedly arrested and detained
over 100 political prisoners. According to the source, these people do not enjoy the same
rights as other prisoners, and humanitarian and human rights organizations have no access to
them. The source asserts that, although Mr. Goma has not been politically active, his arrest
and detention are part of this crackdown.
6.
The source notes that, in its concluding observations on the fifth periodic report of
Togo, the Human Rights Committee expressed serious concern at the Government’s
excessive use of pretrial detention and at the large number of people held in prolonged and
arbitrary detention.3 More than half of the prison population in Togo is currently being held
in pretrial detention, and many prisoners are held for several years awaiting trial, without
compensation, some for longer than the sentences they would face if convicted. The source
highlights the recommendations of the Human Rights Committee that the Government of
Togo should expedite the revision of the Code of Criminal Procedure so as to allow all
persons who are arrested or detained to petition a court for it to rule, in a timely manner, on
the legality of the detention and to order their release should the detention be found to be
illegal.4
7.
In addition, the source notes that prison conditions in Togo remain difficult and
life-threatening, owing to severe overcrowding, poor sanitary conditions, disease, and
insufficient and unhealthy food. The source is also concerned about the inadequacy of
medical facilities, food, sanitation, ventilation and lighting, as well as the lack of drinking
water in prison. It recalls the Human Rights Committee’s recommendation that Togo should
consider alternative measures to pretrial detention in order to alleviate prison overcrowding
and difficult detention conditions.5 The source also underlines the express request of the
Committee against Torture that Togo should definitively and without delay close Lomé
prison, where Mr. Goma is currently being held.6
(ii)
Arrest and detention
8.
According to the source, prior to his arrest, Mr. Goma regularly travelled to Togo on
business. On 9 November 2018, he travelled to Lomé following a shipment of goods that he
was conveying from Manchester. Having paid only part of the amount due for this shipment,
he made a trip to the interior of the country with the intention of asking a friend for financial
help to pay the rest. The goods were due for delivery on 21 December 2018 and Mr. Goma,
having been able to meet his friend, returned to Lomé to facilitate the sale of his goods.
9.
On 19 December 2018, Mr. Goma reportedly received a call from a friend asking him
to help eight young people who had travelled from Accra to Lomé and were unable to contact
the person who had invited them to Lomé. According to the source, Mr. Goma did not know
these eight people or the person who had invited them. As the eight people had no place to
stay and no money, Mr. Goma decided to help them and contacted a friend who agreed to
2 See A/HRC/WG.6/40/TGO/3.
3 CCPR/C/TGO/CO/5.
4 Ibid., para. 32.
5 Ibid., para. 34.
6 CAT/C/TGO/CO/3, para. 25;
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take them in. Mr. Goma learned that these eight people were originally from Togo and had
come to Lomé to take part in a peaceful demonstration in the context of the then-upcoming
elections in Togo. He provided them with 50,000 CFA francs to assist them in their return to
Ghana the next morning.
10.
On 20 December 2018, the eight people reportedly managed to get in touch with the
person who had invited them to Lomé, who put them up in a hotel and asked to meet
Mr. Goma to thank him for helping them. Mr. Goma met this person and then, following this
interaction, had no further communication with the person or the other eight people. The
source notes that the Government alleged that a contact of the eight people had been found
in possession of Molotov cocktails. However, neither Mr. Goma nor the source had seen any
evidence supporting that accusation or that the demonstration in which the eight were
planning to take part had anything other than a peaceful purpose.7
11.
According to the source, at around 7 p.m. on 21 December 2018, Mr. Goma and three
people met for dinner. After dinner, they returned to Lomé and dropped off one of these
people in front of the Gbossimé pharmacy on Boulevard de la Kara. According to the source,
they were surrounded by a group of armed men in plain clothes, who physically assaulted
them by kicking them, beating them with truncheons, stomping on their hands, feet, arms,
legs, necks and heads, and threatening to shoot them. Mr. Goma and his companions were
handcuffed and were given no reason or warrant for their arrests. They were transferred to
the headquarters of the Service central de recherches et d’investigations criminelles (Central
Criminal Research and Investigation Department), where they learned that the people who
had arrested them were members of the Unité spéciale d’intervention de la gendarmerie
(Special Intervention Unit of the Gendarmerie).
12.
According to the source, Mr. Goma remained in custody at the headquarters of the
Service central de recherches et d’investigations criminelles, where he was again physically
assaulted, handcuffed to a tree and a car, and beaten. The assault continued the next day, until
Mr. Goma vomited blood and passed out. After the assault, Mr. Goma was reportedly
informed of the accusations made against him, that he and his companions had called upon
individuals from Ghana with the aim of destabilizing the country.
13.
On 22 and 23 December 2018, Mr. Goma and his companions were reportedly
detained on the premises of the Brigade des recherches anti-gang (Anti-gang Research
Brigade). Officers searched Mr. Goma’s home, his car and his freight container for evidence
to substantiate these allegations, without a warrant of any kind. According to the source, the
search of the freight container lasted from 8 a.m. to 6 p.m. Although the officers said they
were looking for contraband, they only found sundry second-hand goods in the container,
such as sewing machines, tools and a car chassis. The source stresses that these searches
produced no evidence against Mr. Goma and that the Government has never charged
Mr. Goma on the basis of what was found during these searches.
14.
Mr. Goma was reportedly detained at the headquarters of the Service central de
recherches et d’investigations criminelles from 23 December 2018 to 9 January 2019 and
underwent further physical assault and torture there. Two of his companions were released
during these two weeks. According to the source, no legal basis was provided to Mr. Goma
to justify his arrest, and he was not informed of the charges against him for 10 days following
his arrest.
15.
On 31 December 2018, 10 days after his arrest, Mr. Goma appeared before the State
Prosecutor and showed him his injuries, presumably due to torture and ill-treatment. On the
same day, Mr. Goma was informed for the first time of the charges against him, which
included wilful destruction of public property, serious disturbance of public order, criminal
conspiracy and undermining the internal security of the State. However, he was not presented
to a judge or given any written documentation.
16.
On 9 January 2019, Mr. Goma was reportedly taken to the Direction générale de la
gendarmerie nationale (Directorate-General for the National Gendarmerie), where he was
handcuffed and seated with his back to the wall, while officers of the Unité spéciale
7 See Lomé Court of Appeal, ruling no. 158, 18 November 2020.
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d’intervention de la gendarmerie pointed their weapons at him and threatened to kill him. He
was then locked up in a villa maintained by the National Gendarmerie. Officers of the Service
central de recherches et d’investigations criminelles reportedly continued to detain Mr. Goma
until he appeared before a judge on 15 January 2019.
17.
The source notes that at no time during these events was Mr. Goma able to contact a
lawyer or his family. In all, he was detained by officers of the Service central de recherches
et d’investigations criminelles for 27 days.
18.
On 15 January 2019, Mr. Goma was reportedly brought before the investigating judge,
accused of financing the Pan-African National Party and being an emissary of the Togolese
diaspora in Europe. Mr. Goma appeared without the assistance of a lawyer and denied the
charges. He was then transferred to the civil prison in Lomé.
19.
On 14 June 2020, at around 3 a.m., Mr. Goma and some 50 other detainees were
transferred to the secret prison of the National Gendarmerie in Lomé, located on Boulevard
du 13 janvier. Mr. Goma was reportedly held alongside 75 other prisoners in a villa with just
four rooms, a shower and a toilet. He was not permitted to communicate with family or
friends and was locked up for 24 hours in a dark cell.
20.
The source claims that it was only in October 2020, two years after his arrest and the
start of his detention, that Mr. Goma was granted access to a lawyer. On 6 October 2020, his
lawyers requested his provisional release from the investigating judge, who rejected the
application by order dated 26 October 2020. The Lomé Court of Appeal upheld the
investigating judge’s order on 18 November 2020.8 The source points to the absence of any
specific findings concerning Mr. Goma in the Court of Appeal’s order.
21.
On 20 November 2020, in response to Mr. Goma’s oral complaints to a presiding
judge about the acts of torture that he had undergone, the Indictment Division of the Lomé
Court of Appeal ordered an official inquiry into the acts of torture allegedly suffered by
Mr. Goma and his co-detainees. The source notes that Mr. Goma was subjected, among other
things, to a method of torture known as “falanga”, which involves whipping a person’s feet
and can cause severe nerve damage and serious malformation of the feet. On 14 June 2021,
Mr. Goma reportedly lodged an official complaint of torture. More than two years later, the
source reports that no inquiry has taken place.
22.
On 6 August 2021, the investigating judge informed Mr. Goma and 15 other detainees
that the charges of wilful destruction of public property and undermining state security had
been dropped. This announcement was reportedly made in private chambers without the
presence of Mr. Goma’s lawyers, who were not thereafter notified that the charges had been
dropped.
23.
The source notes that on 14 December 2021 several special procedure mandate
holders of the Human Rights Council transmitted a letter to the Government of Togo
outlining the facts described above and expressing their concerns regarding the detention and
treatment of Mr. Goma by the Togolese authorities.9
24.
On 20 January 2022, Mr. Goma was transferred from the secret prison of the National
Gendarmerie in Lomé, where he had been held since June 2020, to the civil prison in Lomé,
where he remains to this day. The source notes that, although the civil prison in Lomé has a
capacity of only 600 detainees, it currently houses over 2,000. The source adds that Mr. Goma
is typically fed only once a day, and often not at all.
25.
The source notes the deterioration in Mr. Goma’s health as a result of the torture he is
alleged to have suffered. On 26 November 2021, he was admitted to hospital, where he
remained until 29 November. He was diagnosed with a herniated disc, resulting in sciatica
and causing intense nerve pain, which has since been left untreated. Mr. Goma is also said to
be developing symptoms of Charcot-Marie-Tooth disease, as a result of which he has
gradually lost the use of his legs and can no longer walk. According to the source, the torture
8 Ibid.
9 See communication TGO 4/2021, available from
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26881.
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to which he was subjected has left him in a state of permanent muscle, joint, spine and
abdominal pain.
26.
On 24 February 2022, the Government justified Mr. Goma’s arrest on the basis of
articles 48, 49, 495, 549, 663 and 695 of the Penal Code.
27.
On 4 April 2022, Mr. Goma submitted an application for provisional release on health
grounds. That application was rejected on 12 April 2022; the rejection was communicated to
him orally and the reasons for it were not documented.
28.
On 14 September 2022, Mr. Goma requested the possibility of obtaining a medical
certificate from his doctor, which is necessary in order to receive medical treatment. On
21 November 2022, the Lomé Court of Appeal granted his request. However, the prison
administration reportedly did not allow Mr. Goma to attend his medical appointment, owing
to a problem with documentation. Furthermore, the prison administration allegedly prevented
Mr. Goma from visiting his physician for an appointment on 5 December 2022, despite
having a letter and medical certificate. According to the source, Mr. Goma’s health continues
to deteriorate. Although the Government allowed him limited medical access, Mr. Goma’s
doctor reportedly informed him that he could not receive the treatment he needed in Togo.
The doctor treating Mr. Goma refused to provide him with a copy of his medical file listing
his visits and treatments.
(iii)
Legal analysis
29.
The source argues that Mr. Goma’s arrest and detention are arbitrary under categories
I, II and III of the methods of work of the Working Group.
a.
Category I
30.
According to the source, Mr. Goma’s arrest and detention are arbitrary since he has
been held incommunicado and the authorities cannot substantiate the legal basis for his
detention.
31.
The source recalls that detention is arbitrary when it lacks a legal basis, in particular
when a person is held incommunicado or when the Government fails to support its legal basis
for the detention with enough factual specifics to indicate the substance of the complaint,
such as the wrongful act.10
32.
The source recalls the Working Group’s conclusions that incommunicado detention
constitutes a form of arbitrary detention insofar as it violates the detainee’s right to challenge
the lawfulness of his or her detention before a competent tribunal, as guaranteed in articles
8, 10 and 11 of the Universal Declaration of Human Rights. It notes that incommunicado
detention occurs where an individual is deprived of his or her liberty in secret for potentially
indefinite periods and held outside the reach of the law, without the possibility of resorting
to legal procedures, including habeas corpus. 11 In this regard, the source notes that the
Working Group has affirmed that secret and/or incommunicado detention constitutes the
most heinous violation of the norm protecting the right to liberty of human beings under
customary international law.12
33.
In the present case, the source claims that Mr. Goma was held incommunicado during
two periods. He was first held incommunicado, without access to a lawyer, from his arrest
on 21 December to 31 December 2018, when he was brought before the Prosecutor. He was
then transferred on 14 June 2020 to the secret prison of the National Gendarmerie in Lomé,
where he was held incommunicado until October 2020, when he was allegedly granted access
to a lawyer. From his initial transfer to the Gendarmerie Nationale’s secret prison in Lomé
until 20 January 2022, Mr. Goma was reportedly held in an overcrowded facility, unable to
communicate with the outside world. He had no access to a lawyer, his family or consular
10 Opinions No. 45/2018, paras. 42–43, and No. 62/2018, para. 55.
11 A/HRC/13/42, p. 2; see also A/HRC/22/44, footnote 27.
12 A/HRC/22/44, para. 60.
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staff. Furthermore, the Government gave his family no information as to his whereabouts or
how to contact him. The source accordingly claims that Mr. Goma was held incommunicado.
34.
In addition, the source claims that Mr. Goma’s detention is not founded on any
evidence and that he is being detained without trial. It notes that the allegations used by the
Government to justify Mr. Goma’s arrest are baseless and lack any evidentiary support. His
arrest is held to be part of a broader crackdown on political expression. In this regard, the
source observes that the authorities have arrested and detained more than 100 political
prisoners since the start of the crackdown during the 2017 elections. It explains that,
following demonstrations and repression, on 6 December 2018 the Government reportedly
banned opposition demonstrations planned in reaction to the parliamentary elections
scheduled for 20 December 2018. The government then arrested numerous individuals who
it claimed were associated with the political opposition.
35.
According to the source, to date the Government has not presented any evidence that
Mr. Goma engaged in any act reasonably giving rise to criminal culpability. The source notes
that Mr. Goma, at the request of a friend, merely arranged for a place to stay for eight young
people who were unable to contact their sponsor. He did not solicit, call or recruit anyone
with the aim of disturbing public order, did not undertake any act with the intent of
overthrowing the Government, and did not commit any act of violence. According to the
source, the constitutive elements of the offences provided for in articles 48, 49, 495, 549, 663
and 695 of the Criminal Code, on the basis of which Mr. Goma is detained, have not been
met, and the Government has not presented any evidence justifying his detention on the basis
of these articles.
36.
The source adds that the Government did not initially present Mr. Goma with any
charging document or search warrant, nor did it notify him of the charges against him.
Mr. Goma was informed that two charges had been dropped, but his lawyer was not present.
Later, the Government cited these two charges to justify Mr. Goma’s detention. The source
notes that at present the remaining charges against Mr. Goma are not clear. The source
concludes that the contradictions displayed by the Government, its failure to follow formal
legal process for bringing and amending charges against Mr. Goma, and the secret nature of
the proceedings against him demonstrate the lack of any legal basis for his detention.
b.
Category II
37.
The source submits that Mr. Goma was detained for exercising his right to freedom
of association under article 20 of the Universal Declaration of Human Rights and articles 21
and 22 of the Covenant. It recalls that the Human Rights Committee has called for States to
respect and protect the right of all individuals to associate freely, especially for persons
espousing minority or dissident views. The source notes that the right to freedom of
association, including the right to form and join organizations and associations concerned
with political and public affairs, is an essential adjunct to the rights protected by article 25 of
the Covenant.13 The source also notes that article 30 of the Constitution of Togo protects the
right to freedom of association and assembly.
38.
In the present case, the source claims that Mr. Goma was arrested because of his
association with individuals who were planning to, but allegedly did not, participate in
peaceful protest. In addition, the authorities reportedly accused Mr. Goma of engaging with
the opposition Pan-African National Party. The source argues that, although factually
incorrect in the present case, such an accusation would fall within the scope of the right
guaranteed by article 25 of the Covenant. In addition, Mr. Goma was reportedly detained for
associating with individuals planning to assemble to protest the legislative elections, which
violates his right to freedom of association and peaceful assembly. According to the source,
the Government arrests and detains indefinitely anyone who has any interaction with
protesters or provides any support for potential protesters, regardless of whether that support
is intended to further the aim of the protest, whether the protest actually occurred, or whether
there is any violent intent. The government thus criminalizes any protest or connection with
protesters. The source claims that by detaining Mr. Goma, the Government made it harder to
13 Human Rights Committee, general comment No. 25 (1996), para. 26.
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find the transport, housing, food and support needed to attend and organize a peaceful march.
It thus created an added risk of criminal liability, which discouraged many people and
businesses from associating with protesters, in violation of international law.14
39.
The source argues that none of the permitted restrictions on the rights to freedom of
association and assembly is applicable in the present case.15 It asserts that the Government
has not invoked any threat to national security, public safety, public health or the fundamental
rights of others that would require Mr. Goma’s continuing detention.16
40.
The source thus considers that Mr. Goma’s detention is arbitrary under category II.
c.
Category III
41.
The source argues that Mr. Goma’s detention is arbitrary under category III as it is
contrary to the requirements of the right to a fair trial established by international law and the
Constitution of Togo.
42.
The source states that Mr. Goma was not informed of the grounds for his arrest at the
time that he was seized and detained, in violation of article 9 of the Covenant, article 9 of the
Universal Declaration of Human Rights, and principles 2 and 36 (2) of the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment, as well as
article 19 of the Constitution of Togo. The source notes that the Human Rights Committee
has interpreted article 9 of the Covenant to mean that procedures for carrying out legally
authorized deprivation of liberty should also be established by law and States parties should
ensure compliance with their legally prescribed procedures.17
43.
The source adds that the authorities did not show Mr. Goma a warrant for his arrest,
and there is no indication that such a warrant exists. It therefore concludes that Mr. Goma’s
pretrial detention was unfounded ab initio and that the denial of his provisional release was
a violation of the aforementioned provisions.
44.
Furthermore, the source submits that Mr. Goma has been and continues to be denied
his right to release pending trial, which is contrary to article 9 (3) of the Covenant and
principles 38 and 39 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment. He has been detained since 21 December 2018 without
trial. In this connection, the source notes that detention pending trial must be based on an
individualized determination that it is reasonable and necessary taking into account all the
circumstances, for such purposes as to prevent flight, interference with evidence or the
recurrence of crime.18 According to the source, Mr. Goma has no history of violence and is
not a threat to society. It emphasizes that his alleged criminal activity consisted in arranging
accommodation for young people who could not contact their host and providing them with
a small sum of money.
45.
On 26 October 2020, nearly two years after his arrest, Mr. Goma’s application for
release pending trial was reportedly denied. 19 The source notes that, in order to justify
Mr. Goma’s detention, the Prosecutor focused on the seriousness of the charges against
others and the risk of the other arrestees returning to Ghana. However, the Prosecutor did not
point to any specific evidence that he feared Mr. Goma would destroy, nor did he specify
what particular risk Mr. Goma posed or how he might impede the investigation. In addition,
the source points out that the Lomé Court of Appeal’s order affirming the investigating
judge’s denial contained no particularized findings with regard to Mr. Goma. It notes that, in
14 Opinion No. 22/2017, para. 74.
15 A/HRC/31/66, para. 30; A/HRC/31/65, para. 38; Park v. Republic of Korea
(CCPR/C/64/D/628/1995), para. 10.3; Kim v. Republic of Korea (CCPR/C/64/D/574/1994),
para. 12.2; Opinion No. 44/2014, paras. 22–24; Human Rights Committee, general comment No. 34
(2011), para. 21; Human Rights Committee, general comment No. 37 (2020), para. 35; A/66/290,
para. 40; and the Johannesburg Principles on National Security, Freedom of Expression and Access to
Information (E/CN.4/1996/39, annex), principle 7.
16 Kim v. Republic of Korea, para. 12.2.
17 Human Rights Committee, general comment No. 35 (2014), para. 23.
18 Ibid., para. 38.
19 See Lomé Court of Appeal, ruling no. 158, 18 November 2020.
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rejecting Mr. Goma’s application for pretrial release, the Government invoked the severity
of the charges against him. The source argues that such a basis is not a permissible ground
for pretrial detention, and that pretrial detention should not be used to detain an individual
for a crime for which he or she has not yet been convicted, in effect prejudging the crime
itself.20
46.
The source claims that the Government has not fulfilled its obligation to carry out an
individualized assessment of the risks associated with Mr. Goma’s pretrial release and has
presented no evidence justifying his continued detention. It considers that the injustice of the
current situation is enhanced because Mr. Goma has been detained for nearly the full length
of the sentences for the crimes of which he is accused.
47.
Furthermore, the source points out that Mr. Goma has been detained since
21 December 2018, more than four years, without trial. No trial date is scheduled. According
to the source, there was no basis for the long delay between Mr. Goma’s arrest and the start
of his trial. The source reiterates that this length of delay is longer than the sentence for most
of the charges. It therefore claims that the authorities have violated Mr. Goma’s right to be
tried as expeditiously as possible, guaranteed by article 14 (3) (c) of the Covenant and
reiterated by principle 38 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment and by the Human Rights Committee.21
48.
Finally, the source asserts that the Government violated Mr. Goma’s rights to be
defended by counsel of his own choosing and to communicate with such counsel, guaranteed
by article 14 (3) (b) and (d) of the Covenant. The Human Rights Committee has clarified that
this guarantee requires that the accused is granted prompt access to counsel, and that States
parties should permit and facilitate access to counsel for detainees in criminal cases from the
outset of their detention.22 The source notes that principles 18 (1) and (3) of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
rule 119 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the
Nelson Mandela Rules) and article 16 of the Constitution of Togo also protect the right to
assistance of counsel.
49.
In the present case, the source claims that Mr. Goma was arrested on 21 December
2018, tortured and detained at the headquarters of the Service central de recherches et
d’investigations criminelles, where he was allegedly subjected to further acts of torture, then
transferred to the premises of the Brigade des recherches anti-gang, before being transferred
back to the headquarters of the Service central de recherches et d’investigations criminelles.
His home and his personal belongings were searched. On 31 December 2018, a warrant of
committal was allegedly read out to him, he was taken to the National Gendarmerie and then
held in a cell at the headquarters of the Service central de recherches et d’investigations
criminelles, before being brought before a judge on 15 January 2019 and held for a further
21 months, all without counsel. The authorities reportedly did not permit him to meet with
counsel until October 2020, and counsel was not present on 6 August 2021, when the
investigating judge informed Mr. Goma that certain charges would be dropped and asked
him to sign legal documents. Mr. Goma was also without counsel on 12 April 2022, when
his application for provisional release on health grounds was denied. The source states that
there is no justification for this delay in providing Mr. Goma with a lawyer and denying him
counsel for nearly two years, including during interrogations, his charging and his appearance
before an investigating judge.
50.
The source therefore considers that the arrest and detention of Mr. Goma are arbitrary
under category III.
(b)
Response from the Government
51.
On 25 May 2023, the Working Group transmitted a communication to the
Government requesting it to provide detailed information on Mr. Abdoul Aziz Goma by
18 July 2023, at the latest. Specifically, the Working Group requested the Government to
20 Human Rights Committee, general comment No. 35 (2014), para. 38.
21 Human Rights Committee, general comment No. 32 (2007), para. 35.
22 Ibid., para. 34; and Human Rights Committee, general comment No. 35 (2014), para. 38.
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clarify the legal provisions justifying his continued detention and their compatibility with the
obligations of Togo under international human rights law, in particular with the treaties that
the State has ratified. Moreover, the Working Group called upon the Government to ensure
the physical and mental integrity of Mr. Goma.
52.
The Working Group regrets that it did not receive a response from the Government
and that the Government did not request an extension of the time limit for its reply, as
provided for in the Working Group’s methods of work.
2.
Discussion
53.
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.
54.
In determining whether the deprivation of liberty of Mr. Goma is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has established a prima facie case for breach of international
human rights law constituting arbitrary detention, the burden of proof should be understood
to rest upon the Government if it wishes to refute the allegations.23 In the present case, the
Government has chosen not to challenge the prima facie credible allegations made by the
source.
(a)
Category I
55.
The source asserts that Mr. Goma’s arrest is arbitrary since he was not informed of
the reasons for his arrest at the time. The source adds that the authorities did not show
Mr. Goma a warrant for his arrest, and there is no indication that such a warrant exists. The
Government has chosen not to contest these allegations, although it had the opportunity to
do so.
56.
Article 9 (1) of the Convention specifically provides that no one shall be deprived of
his liberty except on such grounds and in accordance with such procedure as are established
by law. As the Working Group has stated, in order for a deprivation of liberty to have a legal
basis, it is not sufficient for there to be a law authorizing the arrest. The authorities must
invoke that legal basis and apply it to the circumstances of the case. This is typically done
through an arrest warrant, an arrest order or equivalent document.24 25 Furthermore, article 9
(2) of the Covenant states that anyone who is arrested shall be informed, at the time of arrest,
of the reasons for his arrest and shall be promptly informed of any charges against him.
Respect for these rights is essential for the other rights set out in article 9 of the Covenant,
since all individuals must know the reasons for their arrest in order to challenge it effectively
and must be brought before a court or magistrate in order to lodge an appeal.
57.
According to the source, on 21 December 2018, Mr. Goma and his companions were
arrested and handcuffed, without being presented with a warrant and given a reason for their
arrest. The Working Group notes the source’s uncontested allegations that Mr. Goma and his
companions were subjected to multiple physical assaults during their arrest. Noting the
absence of a reply from the Government, the Working Group considers credible the source’s
allegations that Mr. Goma was arrested without being presented with a warrant and without
being informed, at the time of his arrest, of the reasons for his arrest, in violation of article 9
(1) and (2) of the Covenant. The Working Group is particularly concerned by the fact that to
date, more than four years after his arrest, the charges against Mr. Goma remain unclear.
58.
In addition, the source maintains that Mr. Goma has been and continues to be denied
his right to be released pending trial.
59.
The Working Group recalls that, in accordance with article 9 (3) of the Covenant,
pretrial detention should be the exception rather than the rule and should be ordered for the
23 A/HRC/19/57, para. 68.
24 Human Rights Committee, general comment No. 35 (2014), para. 23.
25 It is not usually feasible to obtain a warrant in cases of arrest in flagrante delicto.
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shortest time possible. 26 It must be based on an individualized determination that it is
reasonable and necessary for such purposes as to prevent flight, interference with evidence
or the recurrence of crime. 27 The courts must examine whether alternatives to pretrial
detention, such as release on bail, would render detention unnecessary.28 In determining
whether the conditions governing pretrial detention have been met, the Working Group
focuses on whether the national courts have taken into account the particular circumstances
of the person concerned, but it does not check whether there are risks that would make
detention necessary.29
60.
The Working Group notes that, in its concluding observations on the fifth periodic
report of Togo, the Human Rights Committee expressed serious concern at the Government’s
excessive use of pretrial detention and at the large number of people held in prolonged
detention.30 Many prisoners are said to be held for several years awaiting trial, some for
longer than the sentences they would face if convicted. In the present case, the Working
Group notes that, according to the facts presented by the source, on 26 October 2020, almost
two years after his arrest, Mr. Goma was denied his application for provisional release.
However, the Prosecutor did not point to any specific evidence that he feared Mr. Goma
would destroy, nor did he specify what particular risk Mr. Goma posed or how he might
hamper the investigation. Noting the absence of any response from the Government to
demonstrate an individualized assessment of the risks associated with Mr. Goma’s
provisional release and to justify the need for his continued detention, the Working Group
considers that the authorities have violated article 9 (3) of the Covenant.
61.
Furthermore, the source alleges that Mr. Goma’s arrest and detention are arbitrary
since he was held incommunicado on two occasions, first following his arrest from 21 to
31 December 2018, and then from June to October 2020. According to the source, Mr. Goma
was denied access to his family and his lawyer, and the Government did not provide his
family with any information on where he was held or how to contact him. The Government
has not contested these allegations, although it had the opportunity to do so.
62.
Noting the absence of a response from the Government, the Working Group considers
credible the source’s allegations that Mr. Goma was held incommunicado for 10 days
following his arrest and then for almost four months from June to October 2020. The Working
Group recalls that any deprivation of liberty that entails the wilful refusal to disclose the fate
or whereabouts of the person concerned or to acknowledge his or her detention lacks any
valid legal basis under any circumstance.31 The Working Group considers that Mr. Goma has
been subjected to enforced disappearance and recalls that enforced disappearances violate
numerous substantive and procedural provisions of the Covenant, in particular articles 9 and
14, are prohibited by international law and constitute a particularly aggravated form of
arbitrary detention.32
63.
The Working Group further recalls that holding persons incommunicado violates their
right, under article 9 (4) of the Covenant, to challenge the lawfulness of their detention before
a court.33 The Working Group considers that, by holding Mr. Goma incommunicado for
10 days after his arrest, the authorities deprived him of the right to challenge the lawfulness
of his detention before a court and violated article 9 (4) of the Covenant. Mr. Goma was also
deprived of the right to an effective remedy under article 8 of the Universal Declaration of
Human Rights and article 2 (3) of the Covenant, and was placed outside the protection of the
26 A/HRC/19/57, paras. 48-58; and Opinions No. 5/2019, para. 26; No. 62/2019, paras. 27–29; and
No. 64/2020, para. 58.
27 Human Rights Committee, general comment No. 35 (2014), para. 38.
28 See, for example, Opinion No. 64/2020, para. 58.
29 Opinions No. 46/2020, para. 62; No. 37/2021, para. 72; and No. 15/2022, para. 66.
30 CCPR/C/TGO/CO/5, para. 33.
31 Opinion No. 42/2021, para. 62.
32 Human Rights Committee, general comment No. 35 (2014), para. 17; and Opinions No. 11/2020,
para. 41; No. 41/2020, para. 61; and No. 37/2021, para. 65.
33 Opinions No. 16/2020, para. 62; No. 36/2020, para. 53; and No. 15/2022, para. 64. See also
A/HRC/10/21, para. 54 (e).
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law in violation of article 6 of the Universal Declaration of Human Rights and article 16 of
the Covenant.
64.
The Working Group thus concludes that Mr. Goma’s detention has no legal basis, in
violation of articles 3 and 9 of the Universal Declaration of Human Rights and article 9 of
the Covenant. His detention is therefore arbitrary under category I.
(b)
Category II
65.
The source submits that Mr. Goma was detained for exercising his right to freedom
of association under article 20 of the Universal Declaration of Human Rights and articles 21
and 22 of the Covenant. It also notes that the right to freedom of association is an essential
element of the rights protected by article 25 of the Covenant and is enshrined in article 30 of
the Constitution of Togo.34
66.
The Working Group recalls that detention resulting from the exercise of rights
protected by the Covenant or the Universal Declaration of Human Rights is arbitrary under
category II. It notes the source’s allegations that Mr. Goma was arrested because of his
purported association with individuals who were planning to, but did not, participate in
peaceful protest. The source claims that Mr. Goma was detained for allegedly associating
with individuals planning to assemble to protest the legislative elections, which violates his
right to freedom of association and peaceful assembly. In addition, Mr. Goma’s detention
was supposedly part of a pattern of arrests and detentions of individuals interacting with or
supporting potential protesters. The Working Group notes the absence of a response from the
Government, which has provided no indication that Mr. Goma was arrested and detained for
reasons other than the peaceful exercise of his rights under articles 21, 22 and 25 of the
Covenant and articles 21 and 22 of the Universal Declaration of Human Rights. Furthermore,
the Government has not invoked any of the permitted restrictions to these rights to justify
Mr. Goma’s continued detention. The Working Group accordingly finds violations of articles
21, 22 and 25 of the Covenant and articles 21 and 22 of the Universal Declaration of Human
Rights. The detention of Mr. Goma is therefore arbitrary under category II.
(c)
Category III
67.
Given its finding that the detention of Mr. Goma is arbitrary under category II, the
Working Group emphasizes that no trial should have taken place.
68.
The source argues that Mr. Goma’s detention is arbitrary as it is contrary to the
requirements of the right to a fair trial established by international law and the Constitution
of Togo. Specifically, Mr. Goma has reportedly been detained since 21 December 2018 –
over four years – without trial, and no trial date has been set.
69.
Under articles 9 (3) and 14 (3) (c) of the Covenant, anyone arrested or detained on a
criminal charge must be tried within a reasonable time and without undue delay. The right to
be tried within a reasonable time is reiterated by principle 38 of the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment and by the
Human Rights Committee.35 The Working Group notes that Mr. Goma has been detained
since 21 December 2018, and that no trial date has yet been set. Noting the absence of any
explanation from the Government to justify these long delays, the Working Group considers
that the delay in the start of Mr. Goma’s trial is unacceptable and contrary to articles 9 (3)
and 14 (3) (c) of the Covenant.
70.
Furthermore, all persons deprived of their liberty have the right to legal assistance by
counsel of their choice, as guaranteed by article 14 (3) (b) and (d) of the Covenant. This right
applies at any time during their detention, including immediately after the moment of
apprehension, and access to legal aid shall be provided promptly.36
34 Human Rights Committee, general comment No. 25 (1996), para. 26.
35 Human Rights Committee, general comment No. 32 (2007), para. 35.
36 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, annex), principle 9
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71.
The Working Group notes the source’s undisputed allegations that Mr. Goma was
deprived of his right to be defended by counsel of his choice and to communicate with such
counsel. In particular, after Mr. Goma was arrested on 21 December 2018, the authorities
reportedly did not permit him to meet with counsel until October 2020, and counsel was not
present on 6 August 2021, when the investigating judge informed Mr. Goma that certain
charges would be dropped and asked him to sign legal documents. Mr. Goma was also
without counsel on 12 April 2022, when his application for provisional release on health
grounds was denied. In addition, the Working Group recalls its conclusions above regarding
Mr. Goma’s incommunicado detention following his arrest. Furthermore, in its general
comment No. 32 (2007) the Human Rights Committee has stated that a detainee has the right
to have prompt access to legal counsel, who must be granted the right to have private
communications and meetings with the detainee and to attend all the investigations without
interference or restrictions. Principle 21 of the Basic Principles on the Role of Lawyers states
that it is the duty of the competent authorities to ensure lawyers access to appropriate
information, files and documents in their possession or control in sufficient time to enable
lawyers to provide effective legal assistance to their clients. Effective representation is
fundamentally linked to the principle of equality of arms, enshrined in article 11 of the
Universal Declaration of Human Rights and article 14 of the Covenant.
72.
The Working Group considers that, by denying Mr. Goma access to a lawyer
immediately after his arrest and for nearly two years following his arrest, the authorities
violated article 14 of the Covenant and articles 10 and 11 of the Universal Declaration of
Human Rights.
73.
The Working Group is concerned about the source’s unrebutted allegations of
physical assault and torture against Mr. Goma. In particular, on 14 June 2021, Mr. Goma
lodged an official complaint concerning acts of torture allegedly suffered, but no
investigation has been ordered to date, more than two years later. The Working Group recalls
that, as stipulated in the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, detainees must 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 which is inflicted intentionally on a person. That right is absolute and admits no
exception; such prohibition applies irrespective of the offence allegedly committed by the
accused person. The Working Group also recalls that such acts of torture and ill-treatment
are likely to impair Mr. Goma’s ability to participate in his own defence, in violation of article
14 of the Covenant. The Working Group refers the present case to the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment or punishment.
74.
In view of its above conclusions, the Working Group finds that the violations of
Mr. Goma’s right to a fair trial are of such gravity as to render his detention arbitrary under
category III.
(d)
Concluding observations
75.
The Working Group is gravely concerned by the allegations made by the source,
which are not contested by the Government, concerning the deterioration of Mr. Goma’s state
of health, his conditions of detention in an overcrowded cell without access to sufficient food,
and the refusal by the prison administration to allow him access to the necessary medical
care. The source notes that prison conditions in Togo remain difficult and life-threatening,
owing to severe overcrowding, poor sanitary conditions, disease, and insufficient and
unhealthy food. The Working Group recalls the express request of the Committee against
Torture that Togo should definitively and without delay close Lomé prison, where Mr. Goma
is currently being held. 37 The Working Group also notes the source’s allegations that
Mr. Goma was detained for several years without being able to communicate with the outside
world, including his family.
and guideline 8; A/HRC/45/16, para. 51; and Human Rights Committee, general comment No. 35
(2014), para. 35.
37 CAT/C/TGO/CO/3, para. 25;
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76.
The Working Group urges the Government to ensure that conditions of detention in
all places of deprivation of liberty in Togo meet international standards, including those set
out in the United Nations Standard Minimum Rules for the Treatment of Prisoners (the
Nelson Mandela Rules), first and foremost rules 12 to 27 on living conditions, exercise and
health care and rules 43 (3) and 58 on contact with the outside world. In addition, it takes this
opportunity to recall to the Government 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. The
Working Group refers the present case to the Special Rapporteur on the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health.
3.
Disposition
77.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Abdoul Aziz Goma, being in contravention of articles 3,
6, 8, 9, 10, 11, 21 and 22 of the Universal Declaration of Human Rights and articles
2, 9, 14, 16, 21, 22 and 25 of the International Covenant on Civil and Political Rights,
is arbitrary and falls within categories I, II and III.
78.
The Working Group requests the Government of Togo to take the steps necessary to
remedy the situation of Mr. Goma 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.
79.
The Working Group considers that, taking all the circumstances of the case into
account, the appropriate remedy would be to release Mr. Goma immediately and to accord
him an enforceable right to compensation and other reparations, in accordance with
international law.
80.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Goma and to take appropriate measures against those responsible for the violation of his
rights.
81.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to 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.
82.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
83.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Goma has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Goma;
(c)
Whether an investigation has been conducted into the violation of Mr. Goma’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 Togo with its international obligations in line with the
present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
84.
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
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whether further technical assistance is required, for example through a visit by the Working
Group.
85.
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.
86.
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 29 August 2023]
38 Human Rights Council resolution 51/8, paras. 6 and 9.