Opinion; Subjects: EQUATORIAL GUINEA, 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.23-11047 (E) 050124 050124
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. 9/2023, concerning Sahil Bahaba Madi, Moubarak Hamed,
Francisco Micha Obama, Desiderio Ndong Abeso Abuy, Adolfo
Secundino Esono Mba Oyana and Lucas Ntutumu Otogo Ayecaba
(Equatorial Guinea and 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,1 on 6 January 2023, the Working Group
transmitted to the Governments of Equatorial Guinea and Togo a communication concerning
Sahil Bahaba Madi, Moubarak Hamed, Francisco Micha Obama, Desiderio Ndong Abeso
Abuy, Adolfo Secundino Esono Mba Oyana and Lucas Ntutumu Otogo Ayecaba. Neither
Government has replied to the communication. Both States are parties 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,
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2023/9
General Assembly
Distr.: General
22 June 2023
English
Original: French
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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).
Submissions
Communication from the source
4.
Sahil Bahaba Madi and Moubarak Hamed are both Cameroonian citizens who entered
Equatorial Guinea in December 2017 and usually reside in Cameroon. Both men were
29 years old at the time of their arrest.
5.
Francisco Micha Obama is a citizen of Equatorial Guinea and former president of the
Unión Popular political party. He has reportedly remained involved in the politics of
Equatorial Guinea from his home in Spain. He was 66 years old at the time of his arrest.
6.
Desiderio Ndong Abeso Abuy is a citizen of Equatorial Guinea and usually resides in
the Semu district of Malabo. He was 39 years old at the time of his arrest and was the Deputy
Director of Government Relations for an American company for which he had worked for
15 years. He reportedly owned several companies in Malabo.
7.
Adolfo Secundino Esono Mba Oyana is a citizen of Equatorial Guinea who usually
resides in San Francisco Biyendem, in the city of Bata, Equatorial Guinea. He was 47 years
old at the time of his arrest and is reportedly a former military officer.
8.
Lucas Ntutumu Otogo Ayecaba is a citizen of Equatorial Guinea who usually resides
in Nkoantoma, in the city of Bata, Equatorial Guinea. He was 47 years old at the time of his
arrest and is reportedly a former military officer in the national gendarmerie.
(a)
Context
9.
On 27 December 2017, the authorities of Equatorial Guinea reportedly arrested
30 individuals near the border with Cameroon for their alleged involvement in an attempted
coup d’état. The Government of Equatorial Guinea reportedly stated that the attempt was to
be carried out by foreign mercenaries from Cameroon, Chad and other countries.
10.
Between December 2017 and February 2019, the Government of Equatorial Guinea
allegedly arrested perceived opponents throughout the country, as well as members of the
Coalición de Oposición para la Restauración de un Estado Democrático, an opposition
political party.
11.
Messrs. Madi, Hamed, Micha Obama, Abeso Abuy, Mba Oyana and Otogo Ayecaba
(hereinafter the “six individuals”) were allegedly among 130 people arrested and charged
with crimes against the Head of State, treason, rebellion, possession and stockpiling of
weapons, terrorism and financing of terrorism.
(b)
Arrests
12.
Messrs. Madi and Hamed had reportedly entered Equatorial Guinea after being
offered a job in construction. They were allegedly taken to Ebibeyin, near the Cameroon
border, and locked in a house for three days alongside 19 other immigrant workers. During
this period, an individual reportedly revealed to them that they had in fact been brought to
Equatorial Guinea to serve as mercenaries in the preparation of a coup d’état. The individual
in question brandished a gun and threatened to kill them if they did not participate.
13.
On 29 December 2017, when it was clear that the coup had failed, Messrs. Madi and
Hamed were reportedly informed that they should return to their country. The following day,
it is reported that citizens of Equatorial Guinea were informed that foreigners had come to
“wage war” and were wanted by the authorities. The two men were allegedly arrested at the
Cameroon border as they attempted to return to their country. Mr. Madi was arrested by the
police and Mr. Hamed by the army of Equatorial Guinea, without being presented with a
warrant and without being informed of the reasons for their arrest.
14.
According to the source, in September 2018, Mr. Micha Obama was asked by a friend,
who was later also convicted alongside him, to accompany him on a business trip to Lomé.
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Allegedly, this friend had in fact organized the trip to raise funds to finance the attempted
coup and planned to flee to Europe without taking part. This friend reportedly forged a power
of attorney from the Coalición de Oposición para la Restauración de un Estado Democrático
authorizing him to receive the funds and bearing the signature of Mr. Micha Obama.
Mr. Micha Obama later claimed to have no knowledge of the plan.
15.
Around 18 September 2018, less than two hours after arriving at their hotel in Lomé,
Mr. Micha Obama and his friend were reportedly arrested by the Togolese police. The police
allegedly covered their heads and took them to a military airport, where their computers,
phones and other possessions were confiscated. It is reported that they were then flown back
to Equatorial Guinea. The source claims that the authorities of Togo and of Equatorial Guinea
did not present them with an arrest warrant, follow procedures for extradition or inform them
of the charges against them. Both were allegedly taken to the Black Beach prison in Malabo.
According to the source, the authorities of Equatorial Guinea used techniques similar to those
used in the past to arrest political opponents.
16.
The source reports that two members of Mr. Abeso Abuy’s family were accused of
participating in the organization of the attempted coup d’état. Acting on the instructions of
one of his family members, Mr. Abeso Abuy reportedly picked up another individual at
Malabo airport and lent him money for a flight. Mr. Abeso Abuy had met the individual only
once before, at the home of his relative. Following the attempted coup, the authorities of
Equatorial Guinea allegedly arrested the individual in question, as well as Mr. Abeso Abuy’s
relative. Mr. Abeso Abuy then went to the police station several times to make statements,
without the presence of his lawyer. It is alleged that he informed the police of his family
relationship with one of the arrested individuals and stated that he had no reason to suspect
any criminal activity on the part of his relative. The police forced him to sign a document
without allowing him to read it beforehand. Mr. Abeso Abuy informed his employer of these
activities and continued to report to work during this period. In January 2018, during one of
his regular visits to his detained family member, Mr. Abeso Abuy was allegedly arrested on
the orders of the Ministry of National Security, which oversees the police. It is alleged that
no arrest warrant was issued by a judge or presented to Mr. Abeso Abuy, nor was he informed
of the charges against him. Following his arrest, the Ministry of National Security reportedly
seized money and goods found in Mr. Abeso Abuy’s home. According to the source, these
savings were to be used to seek medical care for one of his children.
17.
It is reported that, in 2002, Mr. Mba Oyana was accused of having been involved in
the preparation of a coup d’état that had allegedly been planned by a member of his family
and was dismissed from the army. Mr. Mba Oyana has family ties with two individuals
accused of organizing the attempted coup in 2017. Mr. Mba Oyana reportedly travelled to
Ebibeyin under the impression that the purpose of the trip was to buy a car. While in Ebibeyin,
they visited a house in which there were four individuals known to the two relatives of
Mr. Mba Oyana with whom he was travelling, two of whom are alleged to be key participants
in the attempted coup d’état. It is alleged that, during this visit, Mr. Mba Oyana drew a map
of the cardinal points between Ebibeyin and Mongomo out of fear of the men who were with
his relatives.
18.
On 5 January 2018, on the orders of the Ministry of National Security, Mr. Mba Oyana
was allegedly arrested for his alleged involvement in the attempted coup, without being
presented with a warrant and without being informed of the charges against him.
19.
Lastly, Mr. Otogo Ayecaba is said to have family links with an alleged organizer of
the coup d’état. In May 2018, he was allegedly arrested by the police of Equatorial Guinea
while being treated for malaria at Ngolo hospital. Reportedly, he was dragged from his
hospital bed, and medical staff were forced to remove his intravenous drips so that he could
be taken into custody and questioned. Although his arrest was ordered by the Ministry of
National Security, it is alleged that no warrant was issued by a judge or presented to him at
the time of his arrest. Nor was he informed of the charges against him. The source claims that
the only link between Mr. Otogo Ayecaba and the attempted coup is the statement by a
member of his family admitting that he met with organizers of the coup attempt.
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20.
According to the source, Messrs. Abeso Abuy, Mba Oyana and Otogo Ayecaba are
three of the many defendants whose arrest is based in whole or in part on their family ties to
alleged participants in the attempted coup.
(c)
Detentions
21.
After his arrest, Mr. Madi was reportedly taken to Ebibeyin police station, where he
was tortured for over a week. He was allegedly placed in a cell with another prisoner, whose
arms and legs were tied behind his back, and was threatened with similar torture if he did not
tell the truth. After denying his involvement in the attempted coup d’état, he was reportedly
tortured by police officers, who used large pliers on his genitals and feet. He was then
transferred to Nkoantoma public prison, where he suffered increased ill-treatment, including
sleeping and eating on the floor, on account of his foreign nationality.
22.
During his trial, Mr. Madi reportedly stated several times that he had entered
Equatorial Guinea on the promise of a legitimate job and had no knowledge that the coup
d’état was being prepared. It is alleged that he did not receive sufficient translation assistance,
even though he speaks only Fulfulde, a language used in Cameroon. He also stated that, since
he did not speak Spanish, another person had provided a statement on his behalf during his
pretrial detention. His lawyer was reportedly prevented from mentioning the lack of
translation or the use of torture, although he did point out that Mr. Madi’s leg was still injured
during the trial.
23.
Mr. Hamed was also reportedly taken to the Ebibeyin police station after his arrest.
He was subjected to severe torture and was forced to confess his alleged involvement in the
attempted coup. At his trial, he refused to confirm these statements and stated that he had
entered Equatorial Guinea to work legitimately. Mr. Hamed was also subjected to
ill-treatment after being transferred to Nkoantoma public prison.
24.
Following the sentencing of Messrs. Madi and Hamed, their lawyers were allegedly
unable to contact them, despite numerous requests to the authorities to do so.
25.
Mr. Micha Obama, for his part, was reportedly detained at Black Beach prison, where
he was subjected to ill-treatment. He was allegedly held in a small cell, was allowed out only
once a day, and was prevented from contacting his lawyer and family for several months. On
23 January 2019, he reportedly made statements without access to a lawyer. During his trial,
the prosecution referred to a power of attorney that was allegedly signed by Mr. Micha
Obama to prove his involvement in the coup. Although Mr. Micha Obama stated that the
signature had been forged, his lawyer was allegedly prevented from presenting the power of
attorney as evidence. It is also reported that the prosecution withdrew 14 witnesses on the
subject, undermining the defence’s ability to prove that the signature had been forged.
26.
Mr. Abeso Abuy was reportedly taken to Black Beach Prison around 20 January 2018,
where he was brutally tortured into making a confession. His arms were allegedly pulled
behind his back until he confessed, and his genitals were electrocuted. He reportedly had no
access to a lawyer, including during questioning, until his trial.
27.
At his trial, the prosecution alleged that Mr. Abeso Abuy’s savings were to be used to
finance the coup. Most of the prosecution’s arguments were based on the testimony of a
person who later recanted. When Mr. Abeso Abuy’s lawyer attempted to question him about
the alleged acts of torture, the judge reportedly stopped him and stated that the trial did not
concern torture. The court also reportedly prevented 15 relevant witnesses from testifying.
28.
Mr. Mba Oyana was allegedly detained in Nkoantoma public prison in deplorable
conditions. For five months, he was reportedly tied up, beaten, electrocuted and prevented
from using the toilet. As a result of this treatment, he allegedly made false statements against
other individuals and was forced to sign a statement while handcuffed and hooded.
29.
Mr. Mba Oyana was also allegedly held in a cell measuring two metres square with
covered windows. For 15 months, he was reportedly denied communication with his lawyer
and family, as well as with other prisoners. At his trial, the prosecutor reportedly referred to
Mr. Mba Oyana’s drawing as a plan of attack. However, the court reportedly refused the
defence’s request to verify the authenticity of the drawing. Mr. Mba Oyana reportedly gave
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a long testimony about the acts of torture to which he had been subjected. Subsequently, the
judge reportedly limited the defence’s questions to three minutes.
30.
Mr. Otogo Ayecaba was also allegedly subjected to inhumane treatment at
Nkoantoma prison. At his trial, he reportedly stated that he had never been informed of the
charges against him and had not had access to copies of the testimonies against him. The only
evidence presented by the prosecution of his involvement in the attempted coup d’état were
his family ties to one of the alleged organizers of the plan. Mr. Otogo Ayecaba was allegedly
questioned about his family member’s knowledge of the attempted coup and involvement in
certain key events. Mr. Otogo Ayecaba and the family member in question each reportedly
stated that Mr. Otogo Ayecaba had no knowledge of the plan. According to the source,
Mr. Otogo Ayecaba was convicted without a single piece of evidence and denied contact
with his lawyers after his sentencing.
(d)
Judgment and sentencing
31.
The source reports that the six individuals were tried by the Bata provincial court,
alongside more than 100 individuals who were tried together for their alleged involvement
in the attempted coup d’état. The trial took place between March and May 2019, and the
judges reportedly disregarded the defendants’ pleas of not guilty.
32.
Messrs. Madi and Hamed were reportedly sentenced to 29 years and 5 months in
prison for attempting to commit a crime against the Head of State. Mr. Micha Obama was
reportedly sentenced to 55 years and 1 month in prison for being an accomplice to treason
and for attempting to commit a crime against the Head of State. Mr. Abeso Abuy was
reportedly sentenced to 25 years and 8 months in prison for being an accomplice to an
attempted crime against the Head of State and to 12 years in prison for being an accomplice
to the financing of terrorism, totalling 37 years and 8 months in prison, and a fine of
2,500,000 euros. Mr. Mba Oyana was reportedly sentenced to 29 years and 5 months in
prison for attempting to commit a crime against the Head of State and to 29 years and
5 months in prison for treason, totalling 58 years and 10 months in prison. Lastly, Mr. Otogo
Ayecaba was reportedly sentenced to 21 years and 4 months in prison and was permanently
dismissed from the army for attempting to commit a crime against the Head of State.
33.
Following their sentencing, the six individuals were reportedly transferred to Oveng
Azem prison in Mongomo, where they are being held in deplorable conditions and without
means of communication. In December 2021, they were allegedly authorized to contact their
families once a week for the first time, before being prohibited from doing so the following
week.
34.
The six individuals allegedly appealed to the Supreme Court, citing, among other
things, violations of the right to a fair trial, sentences that exceeded legal thresholds, the lack
of independence and impartiality of the judges, and the use of evidence obtained through
torture. The Supreme Court reportedly upheld the judgment, stating that even if these
accusations were true, there was no evidence to support them.
(e)
Legal analysis
35.
The source claims that the detention of the six individuals is arbitrary under
categories I and III. It also claims that the detention of Messrs. Madi and Hamed is arbitrary
under category V.
(i)
Category I
36.
According to the source, the detention of the six individuals has no legal basis, since
they have not been informed of the reasons for their arrest, have been held incommunicado,
and the transfer of Mr. Micha Obama from Togo to Equatorial Guinea was illegal.
37.
The source notes that detention is arbitrary when it has no legal basis. The source
argues that the requirement that anyone who is arrested be informed of the reasons for his or
her arrest, under article 9 (2) of the Covenant, and the requirement that anyone arrested or
detained on a criminal charge be brought promptly before a judge are complementary, since
an individual who does not know the reasons for his or her arrest cannot contest them. The
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source adds that the arbitrary nature of detention without a legal basis can be aggravated by
the vague and general nature of the charges brought against the detainee.2
38.
In the present case, none of the six individuals were served with an arrest warrant at
the time of arrest, informed of the charges against them, or informed of those charges
promptly. According to the source, even if the Government of Equatorial Guinea had had a
reason to detain them, their detention would remain arbitrary since none of the six individuals
were informed of the legal basis for their arrest. Finally, the source states that the indictments
were vague and unsubstantiated, making their detention even more arbitrary.
39.
Moreover, it is reported that none of the six individuals were brought before a judge
for at least five months after their arrest or had the initial decision to detain them individually
and periodically assessed, in violation of article 9 (3) of the Covenant.
40.
The source also points out that incommunicado detention constitutes the most heinous
violation of the right to liberty under customary international law, and may in itself constitute
cruel, inhuman or degrading treatment.3 The source notes that people deprived of contact
with their lawyer cannot effectively challenge their detention, and that the arbitrariness is
inherent in these forms of detention as the individual is left outside the cloak of any legal
protection.4 Furthermore, article 17 (1) of the Covenant states that no one shall be subjected
to arbitrary or unlawful interference with his privacy, family, home or correspondence.
41.
In the present case, contact with lawyers and families was allegedly refused to
Messrs. Madi, Hamed, Abeso Abuy and Mba Oyana for 15 months before their trial and to
Messrs. Micha Obama and Otogo Ayecaba for several months after their arrest.
42.
Finally, the source notes that arrests and detentions following rendition are arbitrary.5
In the present case, Mr. Micha Obama was allegedly arrested by the Togolese police while
in his hotel and transported with his head covered to the military airport, where his belongings
were confiscated, before being flown to Equatorial Guinea. It is reported that no arrest
warrant was presented to him and no extradition procedure was followed when handing
Mr. Micha Obama over to the authorities of Equatorial Guinea. The source therefore
concludes that the detention of Mr. Micha Obama has no legal basis.
(ii)
Category III
43.
The source argues that procedural violations during pretrial detention can make it
impossible to conduct a fair trial.
a.
Arrest warrant and the right to be informed of charges
44.
The source argues that the failure to present an arrest warrant when arresting the six
individuals makes their detention arbitrary. The source points out that Mr. Abeso Abuy
allegedly went to the police station several times to make statements about a detained family
member. The authorities therefore had ample access to Mr. Abeso Abuy, and there were no
urgent circumstances which justified the absence of an arrest warrant.
45.
Mr. Otogo Ayecaba, for his part, was allegedly arrested more than a week after the
attempted coup d’état, while hospitalized and on a drip, thus posing no threat to the
Government of Equatorial Guinea. According to the source, his arrest was neither necessary
nor proportionate, especially as obtaining an arrest warrant would have presented little risk.
46.
The source recalls that article 14 of the Covenant enshrines the right of everyone to
be informed promptly and in detail in a language which he or she understands of the nature
and cause of the charge against him or her. The source notes that the Working Group has
previously found violations of this right in cases of one person who was not informed of the
charges for one week and another who was not informed of the charges for four days.6 The
source adds that information about the charges cannot be vague, and that failure to provide
2 Opinion No. 20/2017, para. 35.
3 A/HRC/22/44, para. 60; and A/HRC/16/47, para. 54.
4 A/HRC/22/44, para. 60.
5 Opinion No. 19/2007, para. 18.
6 Opinions No. 25/2012, para. 65; and No. 3/2018, paras. 59 and 63.
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an interpreter or a translation when the accused does not understand the charges against him
or her constitutes a violation of the right to a fair trial.7
47.
In the present case, it is reported that none of the six individuals was informed of the
charges against them promptly, and some were only informed at the time of their trial. In
addition, it is alleged that those that were foreign nationals were not systematically provided
with an interpreter after their arrest or informed of the charges against them in a language
which they understood.
b.
Right to a fair trial and mass trials
48.
The source claims that mass trials do not meet the criteria for a fair trial, as they make
it impossible to conduct a legal assessment of each person’s individual situation. 8 In
particular, the source argues that when defendants in a mass trial are denied the opportunity
to consult their legal representative, the trial is incompatible with the interests of justice,
human rights, the right to a fair trial and the presumption of innocence.
49.
According to the source, the arbitrary evaluation of evidence by a court violates the
right to be presumed innocent, protected under article 14 (2) of the Covenant. The source
notes that the presumption of innocence, which is fundamental to the protection of human
rights, imposes on the prosecution the burden of proving the charge and guarantees that no
guilt can be presumed until the charge has been proved beyond reasonable doubt. 9
Defendants must be treated in accordance with this principle, and the right to present a
defence and to call and examine witnesses is closely linked to the fundamental principle of
due process and the principle of equality of arms. According to the source, the right to a fair
trial is violated when the accused are prevented from presenting their case in the same way
as the prosecution.10
50.
In the present case, the source claims that each of the six individuals was the victim
of serious violations of the right to a fair trial under article 14 of the Covenant.
51.
It is alleged that Mr. Madi, who reportedly does not speak Spanish, did not receive
sufficient help to understand the trial proceedings, which initially led him to unknowingly
accept the charges. He was allegedly accused of being a foreign mercenary involved in the
attempted coup d’état without any proof and based solely on his status as a non-citizen, which
is contrary to the principle of presumption of innocence. The defence reportedly did not have
the same amount of time as the prosecution to present its case, which is contrary to the
principle of equality of arms.
52.
Mr. Hamed was allegedly convicted despite having repeatedly claimed to have
entered Equatorial Guinea to work and to have no knowledge of the preparation of a coup
d’état and without the slightest proof of his involvement in the attempted coup, in violation
of his right to the presumption of innocence.
53.
Mr. Micha Obama’s lawyer was allegedly prevented from challenging the authenticity
of the evidence presented by the prosecution, and was treated considerably differently to the
prosecutor, including with regard to the time allocated to present his arguments. In addition,
the court reportedly sentenced Mr. Micha Obama to consecutive sentences, in violation of
the Criminal Code.
54.
In the case of Mr. Abeso Abuy, the prosecution relied on the testimony of a person
who later recanted. The court reportedly prevented his lawyer from presenting evidence and
examining the witnesses for the prosecution.
55.
In the case of Mr. Mba Oyana, the source claims that the prosecution relied on a single
piece of evidence to argue that he had planned the attempted coup d’état, and the defence
was prevented from challenging the merits of this evidence. Allegedly, no evidence was
presented to support the charges against Mr. Otogo Ayecaba other than his family ties. Both
the family member allegedly involved in the attempted coup d’état and Mr. Otogo Ayecaba
7 Opinions No. 35/2011, paras. 26–29; and No. 4/2018, paras. 20, 40 and 63.
8 Opinion No. 65/2019, para. 75.
9 Saidov v. Tajikistan (CCPR/C/122/D/2680/2015), para. 9.4.
10 Opinion No. 33/2015, para. 90 (c).
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reportedly testified that Mr. Otogo Ayecaba had no knowledge of the attempt and was not
involved in it.
56.
The source believes that Messrs. Mba Oyana and Otogo Ayecaba were targeted solely
because of their family ties to alleged organizers of the attempted coup, in violation of their
right to be presumed innocent.
57.
The source notes that the court’s judgment contains no individualized determination
of guilt and is based on confessions obtained under torture, demonstrating the unfair nature
of proceedings. The court reportedly convicted the six individuals despite the lack of
evidence and in violation of their right to the presumption of innocence.
c.
Prohibition of torture, incommunicado detention and right to a lawyer
58.
Each of the six individuals was allegedly subjected to torture and other ill-treatment,
in violation of articles 7 and 10 of the Covenant. The source recalls that article 14 of the
Covenant guarantees the right not to confess guilt, and that no statements or confessions
obtained through torture or other inhuman treatment may be invoked as evidence in a trial.11
59.
According to the source, incommunicado detention facilitates torture and inhuman
treatment and can in itself constitute a form of such treatment when it lasts for more than two
weeks or is accompanied by other factors such as the isolation of the detainee.12 In addition,
certain forms of psychological treatment, such as torturing a detainee in front of another and
threatening the latter with the same fate, constitute acts of torture and inhuman treatment.13
60.
The source claims that all six individuals were held incommunicado for prolonged
periods. In addition, Messrs. Madi and Hamed were allegedly tortured into confessing while
in police custody, and later tortured while in pretrial detention. The statements obtained under
torture were reportedly used at their trial, and they have been held incommunicado since
sentencing.
61.
Mr. Micha Obama was allegedly transferred from Togo to Black Beach prison in
Equatorial Guinea, where he was held in a tiny, unventilated cell in cruel, inhuman and
degrading conditions, with no regard for his human dignity. He was also held incommunicado
and was only allowed access to a lawyer three days before his trial. Although he was
questioned by police and prosecutors without his lawyer present, his statements were
reportedly presented as evidence at his trial.
62.
Mr. Abeso Abuy was allegedly also held incommunicado at Black Beach prison for
15 months and was tortured into confessing. Although Mr. Abeso Abuy later retracted his
statement, his lawyer was reportedly prevented from submitting any evidence of torture at
the trial.
63.
While in detention at Nkoantoma prison, Mr. Mba Oyana was also allegedly tortured
into making a confession that he later contested. For 15 months, he was also denied
communication with his lawyer, as well as with his family and with other prisoners.
64.
Lastly, Mr. Otogo Ayecaba was reportedly held in Nkoantoma prison in cruel,
inhuman and degrading conditions, with no respect for his human dignity. It is reported that
he was forced to relieve himself in his cell and was denied access to drinking water and
contact with his lawyers and family.
65.
The source recalls that the right to communicate with counsel, protected under
article 14 of the Covenant, is inherent in the right to a fair trial. In this case, the six individuals
were allegedly denied access to their lawyer until three days before their trial. Due to time
and geographical restrictions, some of the individuals, such as Messrs. Madi, Hamed and
Otogo Ayecaba, were reportedly only able to consult their lawyer one or two days before
their trial. In addition, the incommunicado detention of the six individuals violated their
11 See Human Rights Committee, general comment No. 32 (2007).
12 General Assembly resolution 61/153, para. 12.
13 Human Rights Committee, general comment No. 20 (1992), para. 2.
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GE.23-11047
9
rights to have adequate time and facilities for the preparation of their defence and to prepare
their appeal.14
d.
Right to be brought before a competent, independent and impartial tribunal
66.
According to the source, the six individuals did not receive a fair hearing by a
competent, independent and impartial tribunal, in violation of article 14 of the Covenant.
67.
In the present case, the trial of the six individuals demonstrates the control of the
executive branch over the judicial branch.15 The President reportedly ordered the addition of
two judicial officers and two prosecutors from the army and the police in the middle of the
trial. The source claims that this interference by the President in the appointment of military
magistrates and judges alongside civilian judges violates domestic law and procedure.
Furthermore, a military officer reportedly attended the hearing as an observer and relayed
messages to the prosecution and judges throughout the trial.
68.
Furthermore, unlike the prosecution, the defence was allegedly prevented from
presenting evidence and certain arguments, including those concerning torture and violations
of the detainees’ rights prior to the trial. The defence allegedly received only a fraction of the
evidence, whereas the prosecution had access to the entire file. The judge explained that the
size of the file, which filled three entire cases, made it impossible to distribute to all the
defence lawyers. The defence was prevented from responding. The judge also allegedly
imposed arbitrary time limits on the defence, whose questions were sometimes limited to one
minute. The defence was also prevented from raising objections or putting questions to the
prosecution’s expert witnesses.
69.
The source therefore concludes that article 14 of the Covenant was violated.
(iii)
Category V
70.
According to the source, the detention of Messrs. Madi and Hamed is arbitrary, since
they have been discriminated against on the basis of their nationality, in violation of article 7
of the Universal Declaration of Human Rights, article 26 of the Covenant and article 15 of
the Constitution of Equatorial Guinea.
71.
The source claims that a practice may be discriminatory implicitly or if its effects
contravene international principles of non-discrimination. 16 The source notes that, in
determining whether a detention is arbitrary, the Working Group considers, among other
things, whether other persons with similarly distinguishing characteristics have also been
persecuted and whether the authorities have made statements to, or conducted themselves
toward, the detained person in a manner that indicates a discriminatory attitude.17
72.
In the present case, detained foreign nationals, including Messrs. Madi and Hamed,
have allegedly been subjected to worse treatment than detained nationals of Equatorial
Guinea, despite being held for similar crimes. In particular, they were forced to eat and sleep
on the ground, denied access to drinking water and medical care and prevented from washing
their clothes. According to the source, these differences in treatment are based solely on their
foreign nationality.
73.
Furthermore, since the detained foreign nationals did not speak Spanish, the language
barrier reportedly became a considerable challenge, and many of them were forced to sign
confessions that they could neither read nor understand. Similarly, the detained foreign
nationals allegedly did not have access to an interpreter following their arrest or during their
trial and were therefore unable to communicate with their lawyers or understand proceedings.
74.
The source claims that both Mr. Madi and Mr. Hamed have been victims of this
discriminatory treatment, making their arrest and detention arbitrary under category V.
14 Opinion No. 52/2018, para. 79.
15 Oló Bahamonde v. Equatorial Guinea (CCPR/C/49/D/468/1991), para. 9.4.
16 Simunek et al. v. Czech Republic (CCPR/C/54/D/516/1992), para. 11.7.
17 A/HRC/36/37, para. 48.
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Discussion
75.
In the absence of a response from the Governments, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
76.
In determining whether the detention of the six individuals is arbitrary, the Working
Group has regard to the principles established in its jurisprudence to deal with evidentiary
issues. If the source has established a prima facie case for breach of international law
constituting arbitrary detention, the burden of proof should be understood to rest upon the
Government if it wishes to challenge the allegations.18 In the present case, the Governments
have chosen not to challenge the prima facie credible allegations made by the source.
Allegations against Equatorial Guinea
(a)
Category I
77.
According to the source, the arrest and the detention of the six individuals are arbitrary
as they have no legal basis. The source claims that none of the six individuals were presented
with an arrest warrant or informed of the reasons for their arrest at the time of arrest or
informed of the charges against them as soon as possible.
78.
As the Working Group has previously stated, for a deprivation of liberty to have a
legal basis, it is not sufficient that there 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
typically done through an arrest warrant19 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 the arrest, of the reasons for the arrest and shall be promptly informed of any charges.
Respect for these rights is essential to the other rights set out in article 9, since every
individual must know the reasons for his or her arrest in order to challenge it effectively and
be brought before a court or magistrate in order to lodge an appeal.
79.
The Working Group considers that, by failing to present an arrest warrant and to
inform the six individuals of the reason for their arrest, at the time of arrest, and to promptly
inform them of the charges against them, the Government has violated article 9 (1) and (2)
of the Covenant.
80.
Furthermore, it is alleged that none of the six individuals were brought before a
judicial authority to have their detention reviewed for at least five months following their
arrest. Nor was there a periodic and individualized review of their pretrial detention. The
Government has chosen not to contest these allegations although it had the opportunity to do
so.
81.
Under article 9 (3) of the Covenant, anyone arrested or detained on a criminal charge
shall be brought promptly before a judge or other officer authorized by law to exercise
judicial power and shall be entitled to trial within a reasonable time or to release. According
to the Human Rights Committee, 48 hours is ordinarily sufficient to satisfy the requirement
of bringing a detainee “promptly” before a judge, and any longer delay must remain
absolutely exceptional and be justified under the circumstances. 21 More generally,
article 9 (4) entitles anyone who is deprived of liberty to take proceedings before a court, in
order that the court may decide without delay on the lawfulness of the detention and order
release if the detention is not lawful. Furthermore, according to article 9 (3) of the Covenant,
pretrial detention should be the exception rather than the rule and should be ordered for the
shortest time possible.22 According to the Human Rights Committee, pretrial detention must
18 A/HRC/19/57, para. 68.
19 Human Rights Committee, general comment No. 35 (2014), para. 23.
20 In cases of arrest in flagrante delicto, the opportunity to obtain a warrant will not be typically
available.
21 Human Rights Committee, general comment No. 35 (2014), para. 32.
22 A/HRC/19/57, paras. 48–58; and opinions No. 62/2019, paras. 27–29; and No. 64/2020, para. 58.
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GE.23-11047
11
be reasonable and necessary, and must be based on a periodic, justified, individualized
determination.23
82.
In the absence of a response from the Government, the Working Group considers that
the source has established a prima facie case of violation of the right of the six individuals to
be brought promptly before a judicial authority and to have the reasonableness and necessity
of their detention periodically and individually reviewed, as guaranteed by article 9 (3) of the
Covenant.
83.
The source submits that the six individuals were held incommunicado. In particular,
Messrs. Madi, Hamed, Abeso Abuy and Mba Oyana were reportedly prevented from
contacting their lawyers and family members for 15 months before their trial. Messrs. Micha
Obama and Otogo Ayecaba were allegedly denied contact with their lawyers and family
members for seven months before their trial. The source adds that the six individuals were
held incommunicado for over a year following their trial. The Government has chosen not to
challenge the prima facie credible allegations made by the source.
84.
The Working Group recalls that incommunicado detention is inherently arbitrary, as
it places the 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.24 The Working Group has
consistently argued that holding persons incommunicado violates their right to challenge the
lawfulness of detention before a court under article 9 (3) and (4) of the Covenant.25 The
Working Group concludes that the right of the six individuals to an effective remedy under
article 8 of the Universal Declaration of Human Rights and article 2 (3) of the Covenant was
thus violated.
85.
The Working Group thus finds that the detention of the six individuals has no legal
basis, in violation of articles 3 and 9 of the Universal Declaration of Human Rights and
article 9 of the Covenant. Their detention is therefore arbitrary under category I.
(b)
Category III
86.
The source claims that the authorities violated the six individuals’ right to a fair trial
since they were not permitted to contact their lawyers until three days before their trial. In
particular, due to time and geographical restrictions, Messrs. Madi, Hamed and Otogo
Ayecaba were reportedly only able to consult their lawyers one or two days before their trial.
The Working Group notes that the Government has chosen not to contest these allegations
and recalls its conclusions above concerning the incommunicado detention of the six
individuals.
87.
Under article 14 (3) (b) of the Covenant, all persons charged with a criminal offence
have the right to have adequate time and facilities for the preparation of their defence and to
communicate with counsel of their own choosing. 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 the moment of apprehension, and
that this access is to be provided without delay.26 The Working Group concludes that the
deprivation of the six individuals’ right to communicate with counsel of their choosing
immediately after their arrest and until one to three days before their trial violates the very
essence of their right to a lawyer and to have adequate time and facilities for the preparation
of their defence. The Working Group therefore finds violations of article 10 and 11 (1) of the
Universal Declaration of Human Rights and article 14 (3) (b) of the Covenant.
23 Human Rights Committee, general comment No. 35 (2014), para. 38.
24 Opinions No. 56/2019, para. 79; No. 33/2020, para. 91; No. 72/2021, para. 84; and No. 27/2022,
para. 55.
25 Opinions No. 28/2016, para. 51; No. 60/2016, para. 24; No. 79/2017, para. 49; No. 93/2017, para. 40;
No. 33/2020, para. 91; and No. 86/2020, paras. 63 and 64.
26 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
and guideline 8; Human Rights Committee, general comment No. 35 (2014), para. 35; A/HRC/48/55,
para. 56; and A/HRC/45/16, paras. 50–55. See also A/HRC/27/47, para. 13.
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88.
In addition, the source claims that the six individuals’ right to a fair trial was violated
by the conduct of a mass trial, the lack of interpretation during proceedings, the lack of
evidence to support the judges’ decisions, the restrictions on the defence’s ability to challenge
prosecution evidence, the prosecution’s reliance on the testimony of a witness who later
recanted, and the targeting of two individuals because of their family ties. The Government
has chosen not to contest these allegations although it had the opportunity to do so.
89.
Article 14 (2) of the Covenant guarantees that everyone charged with a criminal
offence has the right to be presumed innocent until proven guilty according to law. The
Working Group reiterates that the mass trial procedure risks violating the norms and
standards of international human rights law, 27 including the right to a fair trial and the
presumption of innocence.28
90.
In the present case, the Working Group notes that the mass trial that resulted in the
conviction of the six individuals involved some 130 individuals. Owing to the procedural
irregularities set out below, the Working Group considers that this mass trial is in breach of
the right of the six individuals to a fair trial, including their right to be presumed innocent,
guaranteed by article 11 (1) of the Universal Declaration of Human Rights and article 14 (2)
of the Covenant.
91.
The Working Group considers that the mass trial of around 130 people, including the
six individuals, does not comply with international human rights law, since such a trial does
not allow for a legal assessment of individuals in accordance with the standards of the
international norms on detention.29 The Working Group notes that the fact that the first-
instance verdict contains limited findings of individual criminal responsibility contravenes
the principles of individual criminal responsibility and the presumption of innocence, and
compromises the six individuals’ ability to effectively exercise their right to have their
conviction reviewed by a higher tribunal, guaranteed by article 14 (5) of the Covenant.
92.
The Working Group takes note of the source’s allegations that Mr. Otogo Ayecaba
was targeted because of his family ties. In particular, the source claims that the prosecution
provided no evidence to support the charges against Mr. Otogo Ayecaba, other than his
family relationships. In the absence of a response from the Government refuting these
allegations, the Working Group considers that this indicates an approach of “guilt by
association”, in breach of the right to be presumed innocent enshrined in article 14 (2) of the
Covenant.
93.
In addition, the source claims that Mr. Micha Obama’s lawyers were unable to
challenge the authenticity of the evidence relied on by the prosecution, and that Mr. Abeso
Abuy’s lawyers were prevented from presenting evidence and examining the witnesses
presented by the prosecution. The Government has chosen not to rebut these allegations.
Accordingly, the Working Group considers that the authorities have violated the right of the
two individuals to examine, or have examined, the witnesses against them, guaranteed by
article 14 (3) (e) of the Covenant, and undermined the principle of equality of arms enshrined
in article 14 (3) of the Covenant. In addition, the authorities’ refusal to allow the defence
access to documents on which the charges against their clients were based contravenes the
latter’s right to a fair trial, guaranteed by article 14 (3) (b) of the Covenant.
94.
The Working Group also notes the source’s allegations, which have not been refuted
by the Government, that, despite the fact that Mr. Madi does not speak Spanish, he did not
receive sufficient assistance from an interpreter, which led him to unwittingly accept the
charges against him. The Working Group therefore considers that the authorities have
violated Mr. Madi’s right to have the free assistance of an interpreter, guaranteed under
article 14 (3) (f) of the Covenant.
95.
With regard to the source’s allegations of a lack of incriminating evidence, the
Working Group recalls that it has consistently refrained from taking the place of judicial
authorities or acting as a kind of supranational tribunal when it is urged to review the
27 Opinion No. 65/2019, para. 75.
28 Opinion No. 29/2019, para. 75.
29 Opinion No. 65/2019, para. 75.
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13
application of domestic law by the judiciary.30 While it considers itself entitled to assess the
proceedings of the court and the law itself to determine whether they meet international
standards, it is outside its mandate to reassess the sufficiency of the evidence or to deal with
errors of law allegedly committed by the domestic court.31
96.
The source claims, and the Government does not deny, that the six individuals were
subjected to various acts of torture and ill-treatment during their detention in order to extract
confessions from them. The Working Group expresses grave concern at the source’s
uncontested allegations that, during the trial, the defence was prevented from raising
grievances related to torture. The Working Group recalls that not only is torture a grave
violation of human rights in itself, but it also seriously undermines the right to a fair trial,
since it can hinder the ability of persons to defend themselves, especially in light of the right
not to be compelled to testify against oneself or to confess guilt, as set out in article 14 (3) (g)
of the Covenant.32 The Working Group considers that confessions made in the absence of
legal counsel are not admissible as evidence in criminal proceedings.33 The use of a forced
confession violates article 15 of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment and principle 21 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment and taints the entire
proceedings, regardless of whether other evidence was available to support the verdict.34 The
Working Group notes that the Government has chosen not to challenge the allegations made
by the source. The Working Group therefore concludes that the six individuals’ right to a fair
trial under article 10 of the Universal Declaration of Human Rights and article 14 of the
Covenant was violated. The Working Group refers the present case to the Special Rapporteur
on torture and other cruel, inhuman or degrading treatment or punishment.
97.
According to the source, the six individuals have been denied their right to a fair and
public hearing by an independent and impartial tribunal, since the proceedings against them
demonstrate the control of the executive branch over the judiciary.
98.
As has been said by the Working Group, the intervention of a military judge who is
neither professionally nor culturally independent is likely to produce an effect contrary to the
enjoyment of the human rights and to a fair trial with due guarantees.35 According to the
source’s allegations, uncontested by the Government, midway through the trial, the President
ordered the addition of two judicial officers, one military and one from the police, and two
prosecutors, one military and one from the police, to the civil trial. The Working Group
therefore concludes that the six individuals’ right to a hearing by an independent and
impartial tribunal under article 10 of the Universal Declaration of Human Rights and
article 14 of the Covenant was violated.
99.
Lastly, the Working Group notes that Messrs. Madi and Hamed are both nationals of
Cameroon which, like Equatorial Guinea, is a party to the Vienna Convention on Consular
Relations. However, there is no indication that the Government of Equatorial Guinea duly
fulfilled its obligations to notify Cameroon and ensure access to consular assistance for the
foreign detainees, in violation of principle 16 (2) of the Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment and rule 62 (1) of the
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules). The Working Group has repeatedly concluded that the violation of consular
rights contributes to an unfair trial.36 The Working Group therefore finds that the failure of
the Government to respect the right of Messrs. Madi and Hamed to consular assistance is in
violation of articles 9, 10 and 11 of the Universal Declaration of Human Rights, articles 9 (1)
30 See opinions No. 40/2005, No. 6/2021 and No. 78/2021.
31 See, for example, opinions No. 15/2017, No. 16/2017, No. 49/2019, No. 58/2019, No. 60/2019 and
No. 5/2021.
32 Opinions No. 22/2019, para. 78; No. 26/2019, para. 104; and No. 56/2019, para. 88;
33 A/HRC/45/16, para. 53. See also opinions No. 1/2014, para. 22; No. 14/2019, para. 71; No. 59/2019,
para. 70; and No. 73/2019, para. 91. See further E/CN.4/2003/68, para. 26 (e).
34 Opinions No. 43/2012, para. 51; No. 34/2015, para. 28; No. 52/2018, para. 79 (i); No. 32/2019,
para. 43; No. 59/2019, para. 70; and No. 73/2019, para. 91. See also opinions No. 48/2016,
No. 3/2017, No. 6/2017, No. 29/2017 and No. 39/2018.
35 A/HRC/27/48, para. 68.
36 See, for example, opinions No. 28/2016, No. 45/2017 and No. 58/2017.
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and 14 (1) of the Covenant and principle 16 (2) of the Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment.37
100.
The Working Group concludes that the non-observance of the international norms
relating to the six individuals’ right to a fair trial was of such gravity as to give their detention
an arbitrary character under category III.
(c)
Category V
101.
According to the source, Messrs. Hamed and Madi were subjected to discriminatory
treatment because of their status as foreigners.
102.
The Working Group recalls that deprivation of liberty is arbitrary under category V
when it 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.
103.
In assessing the source’s allegation, the Working Group takes into account the
source’s claims that the Government arrested 30 individuals at the border with Cameroon
and stated that the attempted coup d’état was to be carried out by foreigners, including
persons from Cameroon. The Working Group also takes into account the source’s allegations
that the authorities treated Messrs. Madi and Hamed in a discriminatory manner, including
by arresting them without explaining the reasons for their arrest in a language they
understood, by refusing them interpreters following their arrest and during their trial, and by
subjecting them to treatment worse than that of detained nationals of Equatorial Guinea, even
though they were being held for similar crimes. In particular, they were forced to eat and
sleep on the ground, denied access to drinking water and medical care and prevented from
washing their clothes. According to the source, these differences in treatment are based solely
on their foreign nationality.
104.
The Working Group notes that the Government has not refuted these allegations or
provided any reason for the arrest and detention of Messrs. Hamed and Madi. The Working
Group therefore concludes that Messrs. Hamed and Madi were deprived of their liberty on
discriminatory grounds, namely their national origin, in violation of articles 2 and 7 of the
Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant. The
deprivation of liberty of Messrs. Hamed and Madi is thus arbitrary under category V.
Allegations against Togo
105.
According to the source, Mr. Micha Obama was illegally transferred from Togo to
Equatorial Guinea to be detained.
106.
The Working Group has previously expressed concern about transfers and detentions
outside the bounds of judicial proceedings that do not allow individuals access to a lawyer or
a hearing before a judicial authority to challenge their transfer. The Working Group considers
that such transfers are arbitrary, including when no charges are brought against the person
concerned, when that person is not informed of the charges against him or her, and when he
or she does not appear before a judicial authority.38
107.
The Working Group notes the source’s allegations, uncontested by the Government,
that this was the case during Mr. Micha Obama’s transfer from Togo to Equatorial Guinea.
The Working Group therefore concludes that the detention had no legal basis, in violation of
articles 3 and 9 of the Universal Declaration of Human rights and article 9 of the Covenant,
and is thus arbitrary under category I.
108.
The Working Group considers that the Togolese Government bears responsibility for
its role in the abduction, detention and forcible transfer of Mr. Micha Obama to Equatorial
Guinea. The Working Group calls upon the Government of Togo to take all the steps
necessary to secure the immediate and unconditional release of Mr. Micha Obama.
37 A/HRC/48/55, paras. 55–63. See also opinion No. 70/2021, para. 104;
38 See opinion No. 70/2019.
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15
Concluding remarks
109.
The Working Group takes note of the source’s allegations, uncontested by the
Government of Equatorial Guinea, concerning the health of the six individuals, their
conditions of detention in overcrowded cells without reliable access to drinking water, and
the serious acts of torture and ill-treatment to which they have allegedly been subjected.
110.
The Working Group is alarmed at such conditions of detention and recalls that the
absolute prohibition of torture is a peremptory norm of international law, enshrined in the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, principle 6 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment, and rule 1 of the Nelson Mandela Rules. The
Working Group reminds the Government of Equatorial Guinea 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 the
inherent dignity of the human person, including by being allowed to enjoy the same standards
of health care that are available in the community.
Disposition
111.
In the light of the foregoing, the Working Group renders the following opinion:
Regarding Equatorial Guinea:
The deprivation of liberty of Sahil Bahaba Madi, Moubarak Hamed, Francisco Micha
Obama, Desiderio Ndong Abeso Abuy, Adolfo Secundino Esono Mba Oyana and
Lucas Ntutumu Otogo Ayecaba, being in contravention of articles 3, 6, 8, 9, 10 and
11 of the Universal Declaration of Human Rights and articles 2, 9, 14 and 16 of the
International Covenant on Civil and Political Rights, is arbitrary and falls within
categories I and III.
Furthermore, the deprivation of liberty of Sahil Bahaba Madi and Moubarak Hamed,
being in contravention of articles 2 and 7 of the Universal Declaration of Human
Rights and articles 2 and 26 of the International Covenant on Civil and Political
Rights, is arbitrary and falls within category V.
Regarding Togo:
The deprivation of liberty of Francisco Micha Obama, being in contravention of
articles 3 and 9 of the Universal Declaration of Human Rights and article 9 of the
International Covenant on Civil and Political Rights, is arbitrary and falls within
category I.
112.
The Working Group requests the Government of Equatorial Guinea, with regard to
the six individuals, and the Government of Togo, with regard to Mr. Micha Obama, to take
the steps necessary to remedy their situation without delay and bring it into conformity with
the relevant international norms, including those set out in the Universal Declaration of
Human Rights and the Covenant.
113.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release the six individuals immediately and
unconditionally and accord them an enforceable right to compensation and other reparations,
in accordance with international law.
114.
The Working Group urges the Government of Equatorial Guinea, with regard to the
six individuals, and the Government of Togo, with regard to Mr. Micha Obama, to ensure a
full and independent investigation of the circumstances surrounding their arbitrary
deprivation of liberty and to take appropriate measures against those responsible for the
violation of their rights.
115.
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, for appropriate action.
116.
The Working Group requests the Governments of both Equatorial Guinea and Togo
to disseminate the present opinion through all available means and as widely as possible.
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Follow-up procedure
117.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Governments to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether the six individuals have been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to the six
individuals;
(c)
Whether an investigation has been conducted into the violation of the six
individuals’ 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 Equatorial Guinea and of Togo with their international
obligations in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
118.
The Governments are invited to inform the Working Group of any difficulties they
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.
119.
The Working Group requests the source and the Governments 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.
120.
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.39
[Adopted on 28 March 2023]
39 Human Rights Council resolution 51/8, paras. 6 and 9.