Opinion; Subjects: BENIN, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.24-12802 (E) 161024 161024
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-ninth session, 18–27 March 2024
Opinion No. 21/2024 concerning Frédéric Joël Aïvo (Benin)*
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 51/8.
2.
In accordance with its methods of work,1 on 12 January 2024 the Working Group
transmitted to the Government of Benin a communication concerning Frédéric Joël Aïvo.
The Government did not reply to the communication within the established time frame. 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).
* Miriam Estrada-Castillo did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/21
General Assembly
Distr.: General
15 August 2024
English
Original: French
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1.
Submissions
(a)
Communication from the source
4.
Frédéric Joël Aïvo, born on 18 July 1973, is a law professor, rights defender and
activist from Benin. He usually lives in the commune of Sèmé-Podji in Benin. According to
the source, Mr. Aïvo is an eminent constitutionalist, who has been a member of several
constitutional committees in Benin under various presidents, and a constitutional expert
attached to the United Nations Multidimensional Integrated Stabilization Mission in the
Central African Republic.
(i)
Context
5.
In 2009, Mr. Aïvo co-founded the Association béninoise de droit constitutionnel
(Beninese Constitutional Law Association), which he chaired until 2020. He participated
peacefully in collective action and publicly denounced violations of democratic principles,
the rule of law and human rights. In March 2016, he opposed the revision of the Constitution
of 11 December 1990. In April 2019, ahead of legislative elections that were likely to be
disputed because opposition parties were being excluded, Mr. Aïvo produced a report, at the
request of the President of the National Assembly, offering guidance on the organization of
a free, democratic and peaceful election. According to the source, the conditions imposed by
the Electoral Commission and the Constitutional Court were designed to exclude opposition
parties from the legislative elections of April 2019 and to ensure that only parties that
supported President Talon were in the running. Mr. Aïvo also contested the Act of
7 November 2019 whereby the Constitution was amended to require every presidential
candidate to obtain at least 10 per cent of their endorsements from mayors or members of
parliament. The source claims that the Act effectively excludes opposition candidates, since
at the time of the 2021 presidential election campaign, almost 95 per cent of municipal and
parliamentary seats were held by elected representatives from majority parties. Furthermore,
on 4 December 2020, the African Court on Human and Peoples’ Rights called for the Act to
be repealed on the grounds that it violated the principle of national consensus.
6.
In 2020, Mr. Aïvo co-founded the Front pour la restauration de la démocratie (Front
for the Restoration of Democracy), an alliance of political parties and the main representative
of the opposition in Benin at the time of the 2021 presidential election. This alliance called
for a return to democracy and for inclusive, free and transparent elections. In January 2021,
the Front pour la restauration de la démocratie nominated Mr. Aïvo as its presidential
candidate. His candidacy, along with that of eight other political opponents, was rejected by
the Electoral Commission on account of a lack of endorsements. Nevertheless, Mr. Aïvo
maintained his stance and made numerous public statements, denouncing, among other
things, an electoral system designed to silence the opposition and the Government’s failure
to respect the Constitution.
7.
President Talon’s decision to extend his term in office by 45 days beyond 6 April 2021
(the date of the end of his term according to the Constitution) sparked numerous
demonstrations. On 10 April 2021, Mr. Aïvo called for a peaceful boycott of the presidential
election. President Talon’s re-election was followed by a wave of repression and arrests of
political opponents.
(ii)
Arrest and detention
8.
At around 3 p.m. on 15 April 2021, four days after the election, Mr. Aïvo was
reportedly arrested in his car as he was leaving the university where he had been teaching.
The arrest was made by hooded and heavily armed members of the national police, under the
command of the Director of the Economic and Financial Brigade. Even though Mr. Aïvo had
received no summons, he was not shown an arrest warrant, nor was he informed of the
reasons for his arrest, the charges against him or the place where he was being taken by the
police.
9.
Mr. Aïvo was taken to the premises of the Economic and Financial Brigade, where he
was questioned and verbally informed that he had been arrested on account of his public
statements and speeches during the election period, which had, according to the Brigade,
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triggered violence. After the interrogation, Mr. Aïvo was detained in the office of a Brigade
official until the following day.
10.
At around 6 p.m. on 16 April 2021, Mr. Aïvo was brought before the Special
Prosecutor of the Court for the Prevention of Financial Offences and Terrorism. During the
hearing, the Court in turn referred to Mr. Aïvo’s public speeches and statements in which he
had spoken out against attacks on democracy and electoral irregularities. According to the
source, at the end of a summary hearing during which no evidence was presented, the Special
Prosecutor issued a detention order for money-laundering and conspiracy against State
security, under the flagrante delicto procedure provided for in article 72 of the Code of
Criminal Procedure. Mr. Aïvo, having been informed for the first time of the legal basis for
the deprivation of his liberty, was placed in pretrial detention at Cotonou civilian prison,
where he is still being held.
11.
Mr. Aïvo appeared before the trial chamber of the Court for the Prevention of
Financial Offences and Terrorism for the first time on 15 July 2021, that is, three months
after his arrest, in violation of article 402 of the Code of Criminal Procedure, which
establishes a time limit of 72 hours for flagrante delicto proceedings. There was no debate
during the hearing. Mr. Aïvo pleaded not guilty and his lawyers requested his release pending
trial. While maintaining that Mr. Aïvo had been arrested in the act of committing serious
offences, the Special Prosecutor asked for more time to establish the facts, claimed that the
judges were not competent to hear the case and requested that the case be referred to the
investigating chamber for further investigation and gathering of evidence. The source notes
that the term “in flagrante delicto” implies that the acts in question have been proven to have
been perpetrated and to have had a real impact on public order.2 Mr. Aïvo’s lawyers made
accusations of procedural trickery and called for Mr. Aïvo to be released pending trial. Their
request was rejected and the hearing was postponed.
12.
On 5 August 2021, Mr. Aïvo again appeared before the Court for the Prevention of
Financial Offences and Terrorism, which declared that it was not competent to hear the case
and referred the case to the investigating judge. Mr. Aïvo was then heard by the liberties
judge, who rejected his request for release pending trial, stating that the acts of which he had
been accused, if proven, had seriously undermined public order. The source contests this
decision, arguing that the pretrial detention of Mr. Aïvo was based on the claim that he had
been caught in flagrante delicto and that, by granting the Special Prosecutor’s request to refer
the case to the investigating judge for sufficient evidence to be gathered, the Court had
implicitly recognized that there was insufficient evidence for the case to qualify as one of
flagrante delicto. Moreover, there was no evidence that Mr. Aïvo was dangerous. Beninese
human rights defenders lodged an appeal against the Special Prosecutor of the Court, in
which they claimed that he had failed to provide information about Mr. Aïvo’s arrest and had
violated articles 8, 26 and 35 of the Constitution.
13.
At 9 a.m. on 11 October 2021, Mr. Aïvo appeared before the Investigating
Commission of the Court for the Prevention of Financial Offences and Terrorism. This
hearing, which lasted less than three hours, was the only time that Mr. Aïvo was heard by the
investigating judge. Neither Mr. Aïvo nor his lawyers received any form of summons. They
learned that the hearing was to take place through the national media on 6 October 2021, five
days before it was scheduled to happen. The defence team was given access to the case file
only until 12 p.m. on 8 October 2021. The source claims that the Investigating Commission,
which had no evidence or testimony for the prosecution, did not organize any form of
confrontation between the defendants. The investigation was closed on 26 November 2021.
14.
On 6 December 2021, Mr. Aïvo’s trial before the Court for the Prevention of Financial
Offences and Terrorism began. After a hearing that lasted less than 14 hours, Mr. Aïvo was
found guilty of money-laundering and conspiracy against State security and was sentenced
to 10 years’ imprisonment and a fine of 45 million CFA francs (CFAF). According to the
source, no evidence was provided to support these accusations and no link could be
established between Mr. Aïvo and the other defendants and co-defendants. The Court’s
decision remains unavailable and Mr. Aïvo’s lawyers have not received a copy of it.
2 See Code of Criminal Procedure, art. 47.
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15.
During the various hearings, Mr. Aïvo was accused of expressing dissent and calling
for a boycott of the presidential election. The source notes that since access to Mr. Aïvo’s
file has been severely restricted, it is impossible to be certain of the facts that officially
prompted his arrest and detention. Moreover, no concrete, credible factual evidence was
provided to support the accusations either when he was arrested or during the trial. According
to the source, the lack of evidence for the prosecution and the similar fate suffered by other
political opponents show that the trial was highly political. Indeed, a few days after
Mr. Aïvo’s conviction, a leading opposition figure who had been prevented from standing in
the 2021 presidential election was, in turn, tried by the Court for the Prevention of Financial
Offences and Terrorism. This person was also arrested in the first half of 2021, in the context
of the presidential campaign, having allegedly been caught in the act of financing terrorism.
According to the source, after a disproportionately long period of pretrial detention and
proceedings marred by irregularities, the Court sentenced this person to 20 years’
imprisonment despite the lack of evidence. The source notes the opinion of the Working
Group on Arbitrary Detention in which it found the detention of this person to be arbitrary.3
16.
In October 2021 and June and July 2022, in response to national and international
pressure, President Talon ordered the provisional release of several dozen political opponents
who were facing essentially the same charges as Mr. Aïvo. Mr. Aïvo was not among the
prisoners who were released, but the President stated that pardons or amnesties might be
granted at a later date. However, Mr. Aïvo was also not one of the 350 prisoners who were
pardoned in August 2022.
17.
The source claims that it is impossible for Mr. Aïvo to have access to an effective
remedy because the democratic situation in Benin has deteriorated and the judicial system is
neither impartial nor independent. The source notes that the appeal lodged by the defence
was also heard by the Court for the Prevention of Financial Offences and Terrorism, which
is biased and dependent on the executive power.
(iii)
Legal analysis
18.
The source submits that the detention of Mr. Aïvo is arbitrary under categories I, II,
III and V.
a.
Category I
19.
According to the source, the arrest and detention of Mr. Aïvo have no legal basis and
therefore constitute a violation of article 9 of the Covenant, article 9 of the Universal
Declaration of Human Rights, article 6 of the African Charter on Human and Peoples’ Rights
and principles 2, 3 and 10 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment.
20.
The source claims that Mr. Aïvo was not shown an arrest warrant at the time of his
arrest and that he was not told the legal basis for his arrest during his interview with the
Economic and Financial Brigade. According to the source, the lack of an arrest warrant
cannot be justified by the claims that Mr. Aïvo was caught red-handed, since it has not been
established that he was in flagrante delicto when he was leaving his place of work and the
prosecution has not produced any evidence to show that an offence had just been, was being
or was about to be committed. Moreover, the fact that the Special Prosecutor of the Court for
the Prevention of Financial Offences and Terrorism requested that the hearing of 15 July
2021 be adjourned and that the case be referred to the investigating chamber shows that there
was a lack of evidence that Mr. Aïvo had been caught red-handed. According to the source,
neither the criteria used by the Working Group to determine whether a case qualifies as one
of flagrante delicto4 nor those set out in article 47 of the Code of Criminal Procedure have
been met.
21.
The source notes that for detention to have a legal basis, the authorities must invoke
that legal basis and apply it to the circumstances of the case by issuing an arrest warrant and
3 Opinion No. 51/2022.
4 Opinion No. 9/2018, para. 38.
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notifying the person concerned of the legal basis for the detention without delay.5 According
to the source, those requirements have not been met in the present case.
22.
The source notes that articles 146 and 149 of the Code of Criminal Procedure state
that pretrial detention is an exceptional measure that must be “necessary and useful for
investigating the case and establishing the truth” and that may be ordered or extended only if
it is the sole means of, among other things, ensuring that the accused person remains at the
disposal of the courts. Articles 57, 58 and 61 of the Code of Criminal Procedure set out the
procedure to be followed in cases of flagrante delicto, with article 61 stating that, in cases
where there is serious and corroborative evidence justifying a person’s indictment, that
person may not be held at the disposal of the senior law enforcement officer for more than
48 hours. That period may be extended by order of the public prosecutor but may not exceed
eight days. The source also notes that various United Nations bodies have repeatedly found
that the courts in Benin make excessive use of pretrial detention.6
23.
The source adds that the notion of “arbitrary” implies both that detention must be
imposed in accordance with the applicable law and procedure and that it must be proportional
to the aim sought, reasonable and necessary.7 Pretrial detention is an exceptional measure
that must be used only to the extent that it is reasonable and necessary, taking into account
the circumstances and the person concerned, including the risk of flight. The source notes
that pretrial detention must be defined by law in precise terms, without reference to vague
standards such as “public security”, and that other forms of deprivation of liberty must be
considered.8
24.
In the present case, in the decisions of 15 July and 5 August 2021 whereby the requests
for release pending trial were rejected and Mr. Aïvo’s detention was extended, the only
reason given was that the requests were “premature”. The source considers that, in the
absence of any legal basis or evidence substantiating the charges and showing that Mr. Aïvo
is dangerous and a flight risk, the decision to keep him in pretrial detention is abusive.
25.
Lastly, the source claims that the authorities have repeatedly prevented Mr. Aïvo’s
lawyers from obtaining a copy of the case file. After his arrest on 15 April 2021, his lawyers
were not given access to the case file until the end of May 2021. From then until the last
hearing on 6 December 2021, the authorities refused to provide them with a copy. Mr. Aïvo’s
lawyers were authorized to consult the case file only on the premises of the Court for the
Prevention of Financial Offences and Terrorism, at set times and for very brief periods.
According to the source, these repeated obstructions confirm that the file contains no
evidence that Mr. Aïvo was caught red-handed and are intended to prevent the defence from
challenging the very basis for his arrest and detention.
26.
The source therefore submits that the arrest and detention of Mr. Aïvo are arbitrary
under category I.
b.
Category II
27.
According to the source, Mr. Aïvo’s arrest and sentencing to 10 years’ imprisonment
are intended to prevent him from exercising his right to freedom of expression and his right
to participate in peaceful assemblies, to engage in the activities of associations, to defend
human rights and to take part in the conduct of public affairs in his country, and to punish
him for exercising these rights, in violation of articles 19–21 of the Universal Declaration of
Human Rights, articles 19, 21, 22 and 25 of the Covenant and articles 9–11 and 13 of the
African Charter on Human and Peoples’ Rights.
28.
The source explains that, starting on 6 April 2021, the last day of President Talon’s
first term in office under the Constitution, numerous demonstrations were staged by political
opponents. International organizations and United Nations bodies deplored the violent
suppression of these demonstrations.9 The African Commission on Human and Peoples’
5 Opinions No. 35/2018, para. 26; and No. 66/2018, para. 45.
6 A/HRC/WG.6/28/BEN/2, para. 22; and CCPR/C/BEN/CO/2, para. 24.
7 A/HRC/22/44, para. 61.
8 Opinions No. 91/2017, para. 77; and No. 3/2018, para. 61.
9 See, for example, CAT/C/BEN/CO/3, paras. 34 and 35.
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Rights expressed particular concern about the restrictions on civic space and the crackdown
on demonstrations by the army resulting in loss of lives, abuses and violations, attacks on the
integrity of persons, and the destruction of public and private property.10
29.
According to the source, Mr. Aïvo stepped up his criticism of the Government as the
democratic situation in Benin deteriorated. He openly criticized the exclusion of opposition
parties from the legislative elections of April 2019. Subsequently, among other things, he
criticized the system of endorsements that was introduced under the Act of 15 November
2019 on the Electoral Code and the related explanatory act. On 6 April 2021, Mr. Aïvo
launched the slogan “Five Years Is Five Years”, referring to the fact that the President
remained in power and calling for compliance with the Constitution of 1990. On 8 April
2021, in response to the crackdown on demonstrations, Mr. Aïvo declared that the President
was “solely responsible for prompting the people of Benin to take a tougher stand against the
seizing of power using legal devices and political manoeuvres from another era”. On 10 April
2021, Mr. Aïvo called for a boycott of the presidential election that was to be held the
following day.
30.
It was in this context that Mr. Aïvo was arrested on 15 April 2021. During his
interrogation, he was verbally informed that he had been arrested on account of his public
statements and speeches during the election period, which had, according to the Economic
and Financial Brigade, triggered violence. The source maintains that the accusations against
Mr. Aïvo are false and that no evidence has been provided to substantiate them.
31.
Furthermore, according to the source, Mr. Aïvo’s case is not an isolated one, as
hundreds of opposition activists have been placed in detention since 2016 for openly
criticizing the Government and several of those activists have been similarly convicted by
the Court for the Prevention of Financial Offences and Terrorism.11 The African Court on
Human and Peoples’ Rights found that the proceedings before the Court for the Prevention
of Financial Offences and Terrorism in one of those cases had involved a violation of the
right to a fair trial and noted that the executive power interfered in the decisions handed down
by the Court. According to the source, these examples demonstrate the systematic and
institutionalized repression of political opponents, following a very similar judicial pattern
each time, and the systematic and improper use of arrests and pretrial detention to silence the
opposition.
32.
The source asserts that, given the electoral calendar, Mr. Aïvo’s political involvement
and his public criticism of the Government and the democratic system in Benin, his arrest,
detention and conviction are intended to prevent him from exercising his right to freedom of
expression and his right to participate peacefully in assemblies and the conduct of public
affairs.
33.
The source notes that the holding and expression of opinions, including those which
are critical of, or not in line with, official government policy, are protected.12 The source
notes that detaining a person to prevent him or her from expressing a critical political opinion
violates the right to freedom of opinion, expression and peaceful association and is a marker
of arbitrary detention.13 The source adds that States cannot prohibit criticism of institutions
or use imprisonment as a penalty for such conduct. 14 The source notes that the lack of
sufficient and convincing information regarding the basis and reasons for the arrest and
detention of a person in the context of efforts to promote free and fair elections led the
Working Group to consider the detention of that person arbitrary under category II.15 The
source notes that while the organizers of an assembly should strive to comply with the law
and to encourage peaceful conduct, they cannot be held responsible for the behaviour of
others. To do so would violate the principle of individual liability and discourage potential
10 CADHP/Res. 479 (LXVIII) 2021.
11 See, for example, opinions No. 46/2020; and No. 51/2022.
12 Opinion No. 79/2017, para. 55.
13 Opinion No. 65/2018, para. 26.
14 Human Rights Committee, general comment No. 34 (2011), para. 23; and opinion No. 85/2017,
para. 44.
15 Opinion No. 84/2017, para. 52.
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assembly organizers from exercising their rights.16 The source adds that blaming a person for
violence committed by others during demonstrations is a violation of international law and
renders detention in that context arbitrary.17 The source underlines that a certain level of
disruption to ordinary life caused by assemblies, including disruption of traffic, annoyance
and even harm to commercial activities, must be tolerated if the right is not to be deprived of
substance.18
34.
The source concludes that Mr. Aïvo’s detention is a direct consequence of his
exercising the right to freedom of expression, the right to freedom of peaceful assembly and
association and the right to take part in the conduct of public affairs in his country and is
therefore arbitrary under category II.
c.
Category III
35.
According to the source, the detention of Mr. Aïvo is arbitrary under category III
because there have been serious violations of his right to a fair trial and to due process, in
breach of articles 9–11 of the Universal Declaration of Human Rights, articles 9 and 14 of
the Covenant and articles 6 and 7 of the African Charter on Human and Peoples’ Rights.
36.
The source asserts that Mr. Aïvo’s trial by the Court for the Prevention of Financial
Offences and Terrorism, a court of limited jurisdiction, violates his right to be tried by a
competent, independent and impartial tribunal. According to the source, the Court, which
was established in 2018 to deal with terrorist offences, financial offences, and drug
trafficking and related offences, is fully controlled by the executive branch, in terms of its
functioning, composition and activity. It is directly attached to the executive branch and the
Supreme Council of Justice of Benin, which includes several government ministers and
officials appointed by the President of the Republic, and it remains under the authority and
direct control of the President. According to the source, the composition of the Court − one
president, four judges and a special prosecutor assisted by two deputies, all appointed by a
decree issued by the Council of Ministers after consultation with the Supreme Council of
Justice − reflects its dependence on the executive branch.
37.
Furthermore, according to the source, the justification given verbally by the Economic
and Financial Brigade for Mr. Aïvo’s arrest was that the demonstrations and acts of violence
committed during the public protests against the extension of President Talon’s term in office
were the result of his speeches and public statements. The Court for the Prevention of
Financial Offences and Terrorism, in turn, justified Mr. Aïvo’s indictment and detention by
referring to his public speeches and statements in which he had spoken out against attacks on
democracy and electoral irregularities. According to the source, these claims are further
evidence of the Court’s dependence on the executive branch. The source adds that the
executive’s interference in the work of the Court was publicly denounced by a judge of the
Court who resigned and fled Benin for fear of reprisals.
38.
In addition, the source claims that, aside from its official powers, the Court for the
Prevention of Financial Offences and Terrorism is de facto a body responsible for prosecuting
and trying political opponents of the Government. The source notes that the first people to be
indicted by the Court were political opponents. The African Court on Human and Peoples’
Rights and other international bodies have raised concerns about interference by the
executive branch in judicial matters and, more specifically, in the functioning and decisions
of the Court for the Prevention of Financial Offences and Terrorism.19 In addition, a former
minister reportedly said that, since 2016, all convictions of political figures have been
decided on by the Office of the President or the Ministry of Justice.
39.
In view of the above, the source asserts that Mr. Aïvo was not tried by an independent
and impartial tribunal.
16 Opinion No. 22/2017, para. 74; and A/HRC/31/66, para. 26.
17 Opinion No. 91/2017, paras. 81–85.
18 Opinion No. 79/2017, para. 56.
19 African Court on Human and Peoples’ Rights, Sébastien Germain Ajavon v. Benin, Application
No. 013/2017, paras. 273–287; CAT/C/BEN/CO/3, para. 16; and CCPR/C/BEN/CO/2, para. 28.
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40.
The source also claims that Mr. Aïvo’s right to the presumption of innocence has been
violated. The source points out that excessive or indefinite pretrial detention is incompatible
with the very principle of the presumption of innocence.20 The source also notes that, where
trials involving serious offences are concerned, a short trial suggests that the guilt of the
accused was decided before the trial began, contrary to the principle of the presumption of
innocence.21
41.
In the present case, Mr. Aïvo had no criminal record and continued to report for work
throughout the time that he engaged in activism ahead of the presidential election. He put up
no resistance during his arrest or his hearings, and there is no evidence to suggest that he is
dangerous. His speeches and calls to action were always peaceful and fell within the scope
of his right to express his political opinions freely and to participate in the conduct of public
affairs. They cannot be described as conspiracy against the State. Mr. Aïvo was given a long
prison sentence for serious offences following a trial that lasted just 14 hours, without there
being any incriminating evidence or testimony from his co-defendants. For these reasons, the
source argues that the Court for the Prevention of Financial Offences and Terrorism had
decided that Mr. Aïvo was guilty and had determined the length of his sentence before the
trial had even begun, in violation of his right to the presumption of innocence.
42.
The source also claims that the rights of the defence have been disregarded from the
outset of the proceedings. The source emphasizes that Mr. Aïvo’s lawyers do not have free
access to his case file and were able to consult it only at the end of May 2021, on the premises
of the Court for the Prevention of Financial Offences and Terrorism, at set times and for very
brief periods. Since then, the authorities have refused to provide them with a copy.
Furthermore, neither the defence team nor Mr. Aïvo received any form of summons to his
first hearing before the Court’s investigating chamber. The lawyers learned that the hearing
was to take place through the national media on 6 October 2021, just five days before it was
scheduled to happen, and they were given access to their client’s case file only until 12 p.m.
on 8 October 2021. Lastly, the Court deliberately concealed the identity of the witnesses
involved in the investigation and the trial and never asked the defence team if it wished to
call any witnesses.
43.
According to the source, Mr. Aïvo’s lawyers have had to contend with severe
restrictions on visits, which have hindered the preparation of his defence, and they have been
subjected to considerable pressure, acts of intimidation and threats of reprisals by the Director
of the Economic and Financial Brigade since the beginning of the proceedings.
44.
The source notes that the right to equality before the courts guarantees the principle
of equality of arms and ensures that the parties to the proceedings in question are treated
without any discrimination. 22 The source adds that all persons charged with a criminal
offence have the right to communicate and consult with counsel of their own choosing, to be
assisted by their counsel without any restriction or influence and to have the facilities and
documents necessary for the preparation of their defence.23 The source notes that it is the duty
of the authorities to ensure that lawyers are able to perform their functions without hindrance,
intimidation, harassment or improper interference and 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.24 According to the source, the
refusal to allow the defence to consult all the documents justifying the detention violates
article 9 of the Covenant.25
45.
The source notes that the right to challenge the lawfulness of detention is a
self-standing right, which is essential to preserve legality in a democratic society. It includes
equality of arms and the right of all parties to the proceedings to present their full case to the
20 A/HRC/7/4/Add.1, opinion No. 12/2007, para. 20; and A/HRC/4/40/Add.2, para. 66.
21 Opinions No. 36/2018; No. 46/2018; and No. 51/2022.
22 Human Rights Committee, general comment No. 32 (2007), para. 8.
23 Ibid., paras. 32 and 33; and Basic Principles on the Role of Lawyers, para. 8.
24 Basic Principles on the Role of Lawyers, paras. 16 and 21; Opinion No. 84/2017, para. 49; and 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), principle 9.
25 Opinion No. 91/2017, para. 88.
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court and to have access to all material related to the detention or presented by the
authorities.26
46.
Lastly, the source claims that Mr. Aïvo has been detained in inhuman, cruel and
degrading conditions. From 16 April to 9 June 2021, he was held in particularly unsanitary
conditions, together with 38 other inmates, in a cell measuring 33m2 (former public toilets)
that had only one shower and one toilet without a flush, neither of which were enclosed. Mr.
Aïvo was not allowed to leave his cell for any reason or to go for a walk. He was also detained
with people who had not been tested for coronavirus disease (COVID-19), even though he
himself had tested negative. Since infectious people were not isolated, Mr. Aïvo contracted
a severe form of COVID-19. Following repeated requests to the Minister of Justice and the
President of the Republic by his lawyers, the Special Prosecutor of the Court for the
Prevention of Financial Offences and Terrorism conducted an inspection of the cell on 9 June
2021 and Mr. Aïvo was transferred to a less overcrowded cell. Although he was able to
consult a doctor, the conditions in which he was detained and his diet were not appropriate
to his state of health and his life was therefore at risk.
47.
Moreover, under the pretext of restrictions linked to COVID-19, the Ministry of
Justice continued to subject Mr. Aïvo to differential and unjustified conditions of detention.
For example, the Special Prosecutor refused to issue a visiting permit that would allow Mr.
Aïvo’s family to visit him in decent conditions. As a result, his family could only visit him
for a few minutes at a time, in humiliating and degrading conditions, to bring him his meals,
as the food served to him in prison was indigestible and spoiled. The Ministry of Justice also
refused to authorize visits from master’s and doctoral students wishing to meet with him, as
their thesis supervisor, in order to finish their research. On 8 February 2023, the prison
administration turned away a group of opposition deputies who had come to visit Mr. Aïvo,
once again under the pretext of restrictions linked to COVID-19.
48.
The source claims that the particularly unsanitary conditions and differential treatment
to which Mr. Aïvo has been subjected constitute a violation of his right to be treated with
humanity during his detention. The source notes that States are required to protect detainees,
including by ensuring prompt and regular access to doctors and lawyers and, under
appropriate supervision when the investigation so requires, to family members.27 The source
emphasizes that ongoing limitation of contact between a detainee and his or her family
violates rules 43 (3) and 58 of the United Nations Standard Minimum Rules for the Treatment
of Prisoners (the Nelson Mandela Rules) and principles 15, 19 and 20 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.28
49.
The source therefore submits that the arrest and detention of Mr. Aïvo are arbitrary
under category III.
d.
Category V
50.
Lastly, the source claims that Mr. Aïvo’s detention is arbitrary under category V
because he has been subjected to discrimination based on his political opinions, in violation
of articles 2, 7 and 19 of the Universal Declaration of Human Rights, articles 19 and 26 of
the Covenant, articles 2 and 9 of the African Charter on Human and Peoples’ Rights and
principle 5 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment.
51.
The source considers that Mr. Aïvo was placed in detention because of his political
activism in support of democracy and human rights, and his criticism of the Government’s
legislative and political decisions. According to the source, Mr. Aïvo was placed in detention
after building a strong political coalition around his candidacy, making him one of the leading
opposition candidates. He was arrested following the rejection, in February 2021, of his
candidacy for the presidential election and after he expressed his disagreement with
government reforms, including the extension of the President’s term of office, and called for
a peaceful boycott of the presidential election on 10 April 2021. His arrest and detention were
26 Opinion No. 1/2017, para. 50.
27 Human Rights Committee, general comment No. 20 (1992), para. 11.
28 Opinion No. 79/2017, para. 65.
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part of broader attempts to repress the political opposition, as illustrated by the fact that other
political opponents were arrested, detained and convicted by the Court for the Prevention of
Financial Offences and Terrorism during the same period, 29 several hundred political
opponents have been prosecuted by the Court for similar offences since 2016 and political
opponents have been targeted during demonstrations.
52.
The source notes that specifically targeting members of the opposition and charging
them with offences under counter-terrorism laws constitutes discrimination.30 The source
asserts that a State practice of depriving people of their liberty for contributing to the
expression of political dissent constitutes a violation of international law in that it stems from
discrimination on the basis of political opinion.31 In the present case, Mr. Aïvo was placed in
detention because of his political activism in support of democracy and human rights and his
opposition to the Government.
53.
In addition, the source argues that the differential treatment to which Mr. Aïvo has
been subjected in Cotonou prison attests to the discriminatory nature of his detention.
Mr. Aïvo has been denied the exercise time granted to other inmates and, for lack of
authorization from the Special Prosecutor of the Court for the Prevention of Financial
Offences and Terrorism, his family are only able to visit him for a few minutes at a time to
bring him his meals. For almost two years, Mr. Aïvo has been forced to meet with his family
in degrading conditions, standing at the entrance to the prison, attached to a fence, in full
view of everyone. The source notes that treating persons deprived of their liberty with
humanity and with respect for their dignity is a fundamental and universally applicable rule.
The application of this rule cannot be dependent on the material resources available in the
State party and the rule must be applied without distinction of any kind. 32 The source
emphasizes that treating detainees differently as a result of discrimination based on political
opinion, ethnic origin or religion renders their detention arbitrary under category V.33
54.
According to the source, given the political context and the nature of Mr. Aïvo’s
political activism, he is being subjected to arbitrary detention and differential treatment in
detention because of his political opinions and his public commitment to defending
democracy and the rule of law. The source therefore considers his detention arbitrary under
category V.
(b)
Response from the Government
55.
On 12 January 2024, the Working Group transmitted a communication concerning
Mr. Aïvo to the Government, requesting it to provide detailed information about him by
11 March 2024 and to ensure his physical and mental integrity.
56.
The Working Group regrets that the Government did not submit a reply within the
established time frame,34 nor did it seek an extension of the deadline in a timely manner, as
provided for in the Working Group’s methods of work.
2.
Discussion
57.
In the absence of a timely response from the Government, the Working Group has
decided to render the present opinion, in conformity with paragraph 15 of its methods of
work.
58.
In determining whether Mr. Aïvo’s detention is arbitrary, the Working Group has
regard to the principles established in its jurisprudence to deal with evidentiary issues. If the
source has established a prima facie case for breach of international law constituting arbitrary
detention, the burden of proof should be understood to rest upon the Government if it wishes
29 Opinion No. 51/2022.
30 Opinions No. 64/2018, para. 55; and No. 86/2018, paras. 62 and 63.
31 Opinion No. 86/2018, para. 62.
32 Human Rights Committee, general comment No. 21 (1992), para. 4.
33 Opinions No. 36/2016, para. 35; No. 74/2017, para. 67; and No. 90/2017, para. 48.
34 The Government replied to the communication on 2 April 2024, after the adoption of the present
opinion.
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GE.24-12802
11
to refute the allegations.35 In the present case, the Government has chosen not to challenge
the prima facie credible allegations made by the source.
(a)
Category I
59.
The Working Group will first consider whether there have been violations under
category I, which concerns deprivation of liberty without a legal basis.
60.
According to the source, Mr. Aïvo’s arrest and detention are arbitrary under
category I, because they have no legal basis. Specifically, the source claims that Mr. Aïvo
was not shown a warrant when he was arrested and that he was not told the legal basis for his
arrest during his interview with the Economic and Financial Brigade.
61.
Article 9 (1) of the Covenant states that no one shall be deprived of his or her liberty
except on such grounds and in accordance with such procedure as are established by law. 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.36 This is typically done through an
arrest warrant or order, or an equivalent document.37 In addition, article 9 (2) of the Covenant
states that anyone who is arrested shall be informed, at the time of arrest, of the reasons for
the arrest and shall be promptly informed of any charges against him or her. Respect for these
rights is essential for the other rights set out in article 9 of the Covenant, since all arrested
persons must know the reasons for their arrest in order to be able to challenge it effectively
and must be brought before a court or judge in order to be able to lodge an appeal.
62.
Noting the lack of response from the Government, the Working Group considers
credible the source’s claims that Mr. Aïvo was not shown an arrest warrant or equivalent
document when he was arrested on 15 April 2021 and that he was not told the legal basis for
his arrest during his interview with the Economic and Financial Brigade the same day. There
is nothing to suggest that the case is one of flagrante delicto. Mr. Aïvo was arrested in his car
as he was leaving the university where he worked and the Government has not shown that he
was in the process of committing, about to commit or had just committed an offence. The
Working Group therefore considers that the Government has violated article 9 of the
Universal Declaration of Human Rights, article 9 (1) and (2) of the Covenant and principles 2
and 10 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment.
63.
In addition, the source states that Mr. Aïvo was brought before the Special Prosecutor
of the Court for the Prevention of Financial Offences and Terrorism the day after his arrest
but did not appear before the trial chamber of the Court until 15 July 2021. The source
considers that, in the absence of any evidence substantiating the charges and showing that
Mr. Aïvo is dangerous and a flight risk, the decision to keep him in pretrial detention is
contrary to article 9 (3) of the Covenant.
64.
Article 9 (3) of the Covenant states that anyone arrested or detained on a criminal
charge shall be brought promptly before a judge. The Working Group recalls that, according
to the Human Rights Committee, detention in the custody of law enforcement officials for
longer than 48 hours without judicial control unnecessarily increases the risk of ill-treatment
and must remain absolutely exceptional and be justified under the circumstances.38 Pursuant
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.39 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. 40 Courts must examine whether
alternatives to pretrial detention, such as release on bail, would render detention
35 A/HRC/19/57, para. 68.
36 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.
37 See, for example, opinion No. 4/2023, para. 64.
38 Human Rights Committee, general comment No. 35 (2014), para. 33.
39 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.
40 Human Rights Committee, general comment No. 35 (2014), para. 38.
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unnecessary.41 In determining whether the conditions governing pretrial detention have been
met, the Working Group examines whether the national courts have taken into account the
particular circumstances of the person concerned but does not check whether there are risks
that would make pretrial detention necessary.42
65.
In the present case, the Working Group notes that the Government has failed to justify
the fact that Mr. Aïvo was detained for three months prior to his first appearance before the
trial chamber of the Court for the Prevention of Financial Offences and Terrorism on 15 July
2021. The Working Group considers that the detention of Mr. Aïvo for three months, without
judicial supervision, constitutes a breach of article 9 (3) of the Covenant. The Government
has also failed to demonstrate that the decision to keep Mr. Aïvo in pretrial detention was
based on an individualized determination that it was necessary and has thus committed a
further violation of article 9 (3) of the Covenant.
66.
In view of the above findings, the Working Group considers Mr. Aïvo’s detention to
have no legal basis, in violation of article 9 of the Covenant and articles 3 and 9 of the
Universal Declaration of Human Rights. His detention is therefore arbitrary under category I.
(b)
Category II
67.
The source asserts that Mr. Aïvo’s detention is arbitrary under category II as it results
from his exercise of fundamental rights and freedoms protected by international law,
including the right to freedom of expression, the rights to freedom of peaceful assembly and
freedom of association, and the right to take part in the conduct of public affairs in his
country.
68.
Article 19 of the Covenant and article 19 of the Universal Declaration of Human
Rights provide that everyone has the right to freedom of expression. This right includes the
right to hold opinions without interference and to seek, receive and impart information and
ideas through any media and regardless of frontiers.
69.
In addition, articles 21 and 22 of the Covenant and article 20 of the Universal
Declaration of Human Rights protect the right of peaceful assembly and the right to freedom
of association. Article 21 of the Covenant states that no restrictions may be placed on the
exercise of the right of peaceful assembly other than those imposed in conformity with the
law and which are necessary in a democratic society in the interests of national security or
public safety, public order, the protection of public health or morals or the protection of the
rights and freedoms of others. Article 22 of the Covenant states that everyone shall have the
right to freedom of association with others, including the right to form and join trade unions
for the protection of his or her interests. Article 25 of the Covenant and article 21 of the
Universal Declaration of Human Rights protect the right to take part in the conduct of public
affairs in one’s country.
70.
The Working Group notes the source’s claims that, in 2020, Mr. Aïvo co-founded the
Front pour la restauration de la démocratie, which later nominated him as its presidential
candidate. Mr. Aïvo stepped up his criticism of the Government as the democratic situation
in Benin deteriorated. President Talon’s decision to extend his term in office beyond 6 April
2021, the date of the end of his term, sparked numerous demonstrations, and Mr. Aïvo called
for a peaceful boycott of the presidential election. It was in this context that Mr. Aïvo was
arrested on 15 April 2021 by the Economic and Financial Brigade. During his interrogation,
he was verbally informed that he had been arrested on account of his public statements and
speeches during the election period. The Working Group also notes that he tried to register
as a candidate in the presidential election.
71.
Noting the lack of response from the Government and the lack of specific and
substantiating evidence that Mr. Aïvo called for violence, the Working Group concludes that
Mr. Aïvo’s detention results from his exercise of the rights to freedom of expression, freedom
of association and freedom of peaceful assembly and the right to take part in the conduct of
public affairs in his country, in violation of articles 19–21 of the Universal Declaration of
41 Ibid.
42 Opinions No. 46/2020, para. 62; No. 37/2021, para. 72; and No. 15/2022, para. 66.
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Human Rights and articles 19, 21, 22, and 25 of the Covenant. The arrest and detention of
Mr. Aïvo are therefore arbitrary under category II.
72.
The Working Group refers the present case to the Special Rapporteur on the situation
of human rights defenders.
(c)
Category III
73.
Given its finding that the detention of Mr. Aïvo is arbitrary under category II, the
Working Group emphasizes that no trial should have taken place. However, according to the
source’s claims, which have not been contested by the Government, Mr. Aïvo was tried and
sentenced to 10 years’ imprisonment and a fine of CFAF 45 million. The Working Group
will therefore consider the alleged violations of Mr. Aïvo’s right to a fair trial and due
process.
74.
According to the source, Mr. Aïvo’s trial by the Court for the Prevention of Financial
Offences and Terrorism, a court of limited jurisdiction, violates his right to be tried by a
competent, independent and impartial tribunal.
75.
The Working Group recalls that the right to a hearing by an impartial and independent
tribunal is protected by article 10 of the Universal Declaration of Human Rights and article 14
of the Covenant.43 In addition, the principle of the presumption of innocence is enshrined in
article 14 (2) of the Covenant, article 11 (1) of the Universal Declaration of Human Rights
and principle 36 of the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment.
76.
The Working Group notes the source’s claims, which have not been contested by the
Government, that the Court for the Prevention of Financial Offences and Terrorism is a court
of limited jurisdiction that is directly attached to the executive branch and the Supreme
Council of Justice of Benin and that the latter is under the authority and direct control of the
President of the Republic. According to the source, the first people to be indicted by the Court
were political opponents.44 In addition, the Working Group notes that Mr. Aïvo was charged
with money-laundering and conspiracy against State security, yet the Court referred to his
public speeches and statements in which he had spoken out against attacks on democracy and
electoral irregularities. According to the source’s uncontested claims, the Court sentenced
Mr. Aïvo to 10 years’ imprisonment despite the lack of evidence. Taking into account all of
this information, the Working Group considers that, in the present case, Mr. Aïvo was denied
his right to be heard by an impartial and independent tribunal, in violation of article 14 of the
Covenant and article 10 of the Universal Declaration of Human Rights.
77.
The source also claims that Mr. Aïvo’s right to the presumption of innocence has been
violated and that he has been given a long prison sentence for serious offences without any
incriminating evidence or testimony from his co-defendants having been presented.
78.
The Working Group recalls that its role is not to assess de novo the sufficiency of
evidence used in national criminal proceedings. For this reason, it cannot rule on the
sufficiency of the evidence that led to Mr. Aïvo’s conviction. Nevertheless, the Working
Group notes that Mr. Aïvo was sentenced to 10 years’ imprisonment and a fine of CFAF 45
million at the end of a trial that lasted only 14 hours. The fact that Mr. Aïvo was sentenced
to such a heavy penalty after a short trial supports the Working Group’s conclusion that his
right to a fair trial by an independent and impartial tribunal was violated.45
79.
In addition, the source claims that Mr. Aïvo has been deprived of his right to equality
of arms, as his lawyers were given only two days to examine the case against him, have had
to contend with severe restrictions on visits and have been subjected to threats and pressure
by the Director of the Economic and Financial Brigade. The source claims that Mr. Aïvo’s
43 See United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of
Anyone Deprived of Their Liberty to Bring Proceedings Before a Court; and Human Rights
Committee, general comment No. 32 (2007).
44 Opinion No. 51/2022, paras. 24, 56 and 102.
45 Opinions No. 75/2017; No. 36/2018; No. 46/2018; and No. 51/2022, para. 102.
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lawyers were not notified of the trial date and learned of it through the media. They also were
not given the names of the witnesses who were to be heard by the Prosecutor.
80.
Article 14 (3) (b) of the Covenant states that all persons charged with a criminal
offence are entitled to have adequate time and facilities for the preparation of their defence
and to communicate with counsel of their own choosing. As the Working Group has
previously stated, all persons deprived of liberty have the right to have access to material
related to their detention or presented to the court by the State, in order to preserve the
equality of arms, including information that may assist them in arguing that their detention
is not lawful or that the reasons for the detention no longer apply.46 Although that right is not
absolute and the disclosure of information may be restricted if such a restriction is necessary
and proportionate in pursuing a legitimate aim, such as protecting national security, the State
is required to demonstrate that less restrictive measures would be unable to achieve the same
result. The Working Group reiterates that, in the absence of such exceptional restrictions,
authorities must provide access, within a reasonable period of time, to all materials, including
documents and other evidence, that the prosecution plans to use in court and must ensure that
lawyers are able to advise and represent persons charged with a criminal offence without
restrictions, influence, pressure or undue interference from any quarter.47
81.
In the present case, noting the lack of a response from the Government contesting the
source’s claims, the Working Group concludes that the authorities violated the principle of
equality of arms and Mr. Aïvo’s right to have adequate time and facilities for the preparation
of his defence under article 14 (3) (b) of the Covenant.
82.
In view of all the findings set out above, the Working Group concludes that the
violations of Mr. Aïvo’s right to a fair trial are of such gravity as to give his detention an
arbitrary character under category III.
(d)
Category V
83.
According to the source, Mr. Aïvo’s detention is arbitrary under category V as it
constitutes a violation of international law due to discrimination based on his political
opinions.
84.
In determining whether a deprivation of liberty is discriminatory in nature, the
Working Group takes into account a number of non-cumulative factors. These factors include
whether the deprivation of liberty is part of a pattern of persecution of the detained person,
involving, for example, previous detention; whether other persons with similarly
distinguishing characteristics have also been persecuted; and whether the context suggests
that the authorities have detained the person on discriminatory grounds or to prevent him or
her from exercising his or her human rights.48
85.
The source claims that Mr. Aïvo was placed in detention because of his political
activism in support of democracy and human rights, and his criticism of the Government’s
legislative and political decisions. There are also indications that other people who opposed
the Government’s actions on the grounds that they were anti-democratic were also targeted,
notably by the Court for the Prevention of Financial Offences and Terrorism.
86.
In this context, and in the absence of any information from the Government that might
justify the arrest and detention of Mr. Aïvo, the Working Group considers that the detention
of Mr. Aïvo is part of a pattern of him being targeted for his political opinions and therefore
on discriminatory grounds. The Working Group therefore finds a violation of articles 2 and
7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant.
The detention of Mr. Aïvo is therefore arbitrary under category V.
46 Opinions No. 78/2018, para. 78; and No. 71/2022, para. 90. See also United Nations Basic Principles
and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to
Bring Proceedings Before a Court, principle 12 and guidelines 11 and 13.
47 Human Rights Committee, general comment No. 32 (2007), para. 34.
48 A/HRC/36/37, para. 48.
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15
(e)
Concluding remarks
87.
The Working Group is concerned by the source’s allegations that Mr. Aïvo has been
detained in inhuman, cruel and degrading conditions. In particular, from 16 April to 9 June
2021, Mr. Aïvo was detained together with 38 other inmates in an overcrowded, unsanitary
cell (former public toilets). Mr. Aïvo contracted COVID-19 in his cell. It was only after
repeated requests that Mr. Aïvo was transferred to a less crowded cell, on 9 June 2021. In
addition, for almost two years, Mr. Aïvo has only been allowed to see his family for a few
minutes at a time, while attached to a fence at the entrance to the prison, in full view of
everyone.
88.
The Working Group takes this opportunity to remind the Government of its obligation
under article 10 (1) of the Covenant to ensure that all persons deprived of their liberty are
treated with humanity and respect for the inherent dignity of the human person. It also recalls
that, under rules 24 and 118 of the Nelson Mandela Rules, any person deprived of liberty
should enjoy the same standards of healthcare that are available in the community and must
be allowed to be visited and treated by his or her own doctor if there are reasonable grounds
for the application and he or she is able to pay any expenses incurred. The Working Group
urges the Government to ensure that the conditions in all places of deprivation of liberty in
Benin meet international standards.
3.
Disposition
89.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Frédéric Joël Aïvo, being in contravention of
articles 2, 3, 7, 9–11 and 19–21 of the Universal Declaration of Human Rights and
articles 2, 9, 14, 19, 21, 22, 25 and 26 of the International Covenant on Civil and
Political Rights, is arbitrary and falls within categories I, II, III and V.
90.
The Working Group requests the Government of Benin to take the steps necessary to
remedy the situation of Mr. Aïvo 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.
91.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Aïvo immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international
law.
92.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Aïvo and to take appropriate measures against those responsible for the violation of his
rights.
93.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the situation of human rights defenders, for
appropriate action.
94.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
95.
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. Aïvo has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Aïvo;
(c)
Whether an investigation has been conducted into the violation of Mr. Aïvo’s
rights and, if so, the outcome of the investigation;
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(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Benin with its international obligations in line with the
present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
96.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
97.
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 of any failure to take action.
98.
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.49
[Adopted on 25 March 2024]
49 Human Rights Council resolution 51/8, paras. 6 and 9.