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A/HRC/WGAD/2024/42

Opinion No. 42/2024 concerning Abdurrahman Abduljalil Mohamed al-Farjani (Libya)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2024-08-30 · en UN

Opinion; Subjects: LIBYA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.24-16278 (E) 190924 200924

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its 100th session, 26–30 August 2024

Opinion No. 42/2024 concerning Abdurrahman Abduljalil Mohamed

al-Farjani (Libya)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 51/8.

2.

In accordance with its methods of work, 1 on 24 May 2024 the Working Group

transmitted to the Government of Libya a communication concerning Abdurrahman

Abduljalil Mohamed al-Farjani. The Government has not replied to the communication. The

State is a party to the International Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or her

sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,

26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating to

the right to a fair trial, established in the Universal Declaration of Human Rights and in the

relevant international instruments accepted by the States concerned, is of such gravity as to

give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum-seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or remedy

(category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination, based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, disability

or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2024/42

General Assembly

Distr.: General

20 September 2024

Original: English

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1.

Submissions

(a)

Communication from the source

4.

Abdurrahman Abduljalil Mohamed al-Farjani is a Libyan national born on

16 February 1997. At the time of his arrest, he was a minor and a high-school student. His

usual place of residence is Benghazi.

(i)

Context and State responsibility

5.

According to the source, the arrest of Mr. Al-Farjani on 27 December 2014 was

carried out by the Tariq bin Ziyad Brigade, affiliated to the Libyan National Army and

controlled by General Khalifa Haftar.

6.

The source submits that, in the east of the country, where the Libyan parliament is

based, a de facto government has won the support of the majority in the parliament. However,

the source notes that this de facto government is not recognized by the United Nations or

international bodies as representative of the country. In fact, the east of the country is

allegedly controlled by General Haftar, supported by his sons, who are leaders of militias.

According to the source, one of these militias, the Tariq bin Ziyad Brigade, is responsible for

Mr. Al-Farjani’s arrest and subsequent detention.

7.

Reportedly, the leader of the Tariq bin Ziyad Brigade directly or indirectly controls

official and unofficial prisons.

8.

The source notes that, even if the Libyan National Army and its affiliated forces,

including the Tariq bin Ziyad Brigade, responsible for the arrest and detention of

Mr. Al-Farjani, maintain their own command structure and operate autonomously, the

payment of salaries and the provision of equipment to Libyan National Army personnel are

ensured by the Government of National Accord.

9.

The source argues that, in view of the financial control of the Government of National

Accord over the Libyan National Army and its affiliated militias, the militias should be

considered as de facto organs of the State. The source thus asserts that the militias’ conduct

amounts to acts by the Government of National Accord under international law.

10.

It is submitted that the Government of National Accord is responsible for providing

strict and effective control to ensure that the actions of the militias do not lead to arbitrary or

unlawful arrest or detention.

(ii)

Arrest and detention

11.

The source submits that, on 27 December 2014, at around 9 p.m., Mr. Al-Farjani was

arrested at his home in Benghazi by several members of an armed militia affiliated with

General Haftar. Reportedly, Mr. Al-Farjani was not presented with an arrest warrant, nor was

he informed of the reasons for his arrest.

12.

The source notes that Mr. Al-Farjani’s family received numerous threats related to his

alleged opposition to the eastern administration under General Haftar’s command, and for

being sympathetic to the Government of National Accord.

13.

The source states that, immediately following his arrest, Mr. Al-Farjani was taken to

Bersess prison, an unofficial detention centre run by the leader of the Tariq bin Ziyad

Brigade. It is submitted that Mr. Al-Farjani was interrogated and tortured following his

arrival at Bersess prison. According to the source, every day for several weeks,

Mr. Al-Farjani was subjected to various forms of physical and psychological torture to extract

a confession, including beatings with sticks, electrocution and prolonged suspension by the

wrists, and that he has sustained joint injuries as a result. It is noted that Mr. Al-Farjani denied

all accusations of playing a role against the eastern administration. Reportedly, after the

interrogations, Mr. Al-Farjani’s home was burned down by the authorities.

14.

Reportedly, from the moment of his arrest and for nearly a year and a half,

Mr. Al-Farjani was held incommunicado at Bersess prison, before being transferred to

Al-Koufiya prison. During this period, Mr. Al-Farjani’s family enquired about his situation

with the authorities, including the Assistant Public Prosecutor in Tripoli, but received no

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information. According to the source, the Assistant Public Prosecutor denied having any

authority over places of detention under the control of the militias.

15.

According to the source, on 16 April 2016, Mr. Al-Farjani was transferred to

Al-Koufiya prison, where he is currently being held. The source submits that Al-Koufiya

prison is theoretically under the authority of the Benghazi Prosecutor General and the

Minister of Justice of the eastern administration but, in reality, it is under the effective control

of the militias commanded by General Haftar’s son.

16.

Reportedly, following his transfer to Al-Koufiya prison in 2016, one of

Mr. Al-Farjani’s family members was able to visit him twice, but another family member

was only allowed to visit him for the first time in 2022.

17.

The source reports that, in June 2022, for the first time since his arrest on 27 December

2014, Mr. Al-Farjani was brought before the Military Prosecutor of Benghazi. It is noted that

Mr. Al-Farjani has not been brought before a judge since his arrest in 2014, nor has he been

charged by an authorized court or tried.

18.

According to the source, Mr. Al-Farjani’s family appointed a lawyer immediately

after his arrest. However, his lawyer has not been able to visit him or obtain any information

from the Prosecutor, either during Mr. Al-Farjani’s incommunicado detention in Bersess

prison or after his transfer to Al-Koufiya prison. In addition, the source notes that the

authorities told Mr. Al-Farjani’s lawyer that, as no legal procedure had been initiated against

Mr. Al-Farjani, there was no need for a lawyer to visit him.

19.

Reportedly, although Mr. Al-Farjani was arrested as a minor, he has been held with

adults since the beginning of his detention. Moreover, since 2016, Mr. Al-Farjani has only

been allowed a few visits from his family.

20.

According to the source, the authorities had asserted that Mr. Al-Farjani would be

released by the end of Ramadan in 2024, and a member of his family was authorized an

exceptional visit on the 15th day of Ramadan, on 25 March 2024. However, Mr. Al-Farjani

was reportedly not released, and no visits have been allowed since then. Mr. Al-Farjani

remains deprived of his liberty at Al-Koufiya prison.

(iii)

Legal analysis

21.

The source argues that the arrest and detention of Mr. Al-Farjani are arbitrary under

categories I and III of the Working Group.

a.

Category I

22.

The source submits that the arrest and subsequent detention of Mr. Al-Farjani have no

legal basis.

23.

According to the source, Mr. Al-Farjani has been held in detention by the armed

militia forces affiliated with General Haftar since his arrest on 27 December 2014 and has

thus been detained for almost 10 years without any legal process being launched.

24.

The source argues that the authorities did not present an arrest warrant issued by a

judge in accordance with Libyan law. Moreover, Mr. Al-Farjani was not promptly informed

of the reasons for his arrest or of the charges against him. Reportedly, it was not until June

2022 that he was brought before the Military Prosecutor of Benghazi. The source asserts that

the present case constitutes a violation of article 9 (1) and (2) of the Covenant, as

Mr. Al-Farjani was not promptly informed of the reasons for his arrest or of the charges

against him. The source notes that the right to be promptly informed of criminal charges is a

fundamental human right.

25.

As such, the source concludes that the deprivation of liberty of Mr. Al-Farjani has no

basis in law, from his arrest until his initial appearance before a Military Prosecutor,

specifically from 27 December 2014 to June 2022, and is thus arbitrary, falling under

category I, and constitutes a violation of articles 7, 9 and 10 of the Covenant.

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b.

Category III

26.

The source argues that Mr. Al-Farjani’s detention is also arbitrary under category III,

as he has been denied the right to due process and a fair trial.

27.

It is submitted that Mr. Al-Farjani has not been afforded the guarantees of due process

and a fair trial as required by international standards, in violation of articles 9 and 10 of the

Universal Declaration of Human Rights, articles 9 and 14 of the Covenant, and the

Convention on the Rights of the Child, to which Libya acceded in 1993.

28.

The source recalls that article 2 (3) of the Covenant provides that, in addition to the

effective protection of the rights set forth in the Covenant, States parties must ensure that

individuals have access to accessible and effective remedies for the realization of those rights.

Such remedies should be appropriately adapted to take into account the particular

vulnerability of certain categories of persons, including, in particular, children.2

29.

The source submits that, at the time of his arrest, Mr. Al-Farjani was 16 years old and

thus a minor. He was not informed of the nature and cause of the charges against him and

therefore he was detained in the absence of full evidence, in violation of article 14 (1)–(3) of

the Covenant.

30.

Further, the source claims that Mr. Al-Farjani was denied the right to access a lawyer

and to a prompt trial, in violation of article 37 of the Convention on the Rights of the Child

and article 14 (3) (b)–(d) of the Covenant.

31.

According to the source, the Government should have provided Mr. Al-Farjani with

access to appropriate assistance in the preparation and presentation of his defence, in

particular as a minor. This would have ensured that he could be tried without delay in a fair

trial, considering the best interests of the child, his age and his circumstances, as required by

article 3 of the Convention on the Rights of the Child.

32.

The source argues that Mr. Al-Farjani did not have effective and timely access to legal

representation or to his case file during the investigation phase, which also prevented him

from challenging the lawfulness of his detention. According to the source, the fact that

Mr. Al-Farjani was denied the assistance of a lawyer also constitutes a violation of the United

Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela

Rules). Reportedly, even though Mr. Al-Farjani’s family appointed a lawyer for him,

Mr. Al-Farjani has not been able to meet or communicate with his lawyer.

33.

The source recalls that article 14 (4) of the Covenant stipulates that the procedure

applied to minors below the age of criminal responsibility must consider their age and the

importance of their rehabilitation. It is essential that juveniles enjoy the same guarantees and

protections as adults, as provided for in article 14 of the Covenant, while at the same time

enjoying special protection.

34.

The source contends that Mr. Al-Farjani has not been afforded the special protection

stipulated in the Convention on the Rights of the Child, despite the fact that he was a minor

at the time of his arrest. Further, the source asserts that Mr. Al-Farjani was subjected to cruel

treatment and psychological and physical torture to extract a confession, including beatings

with sticks, electric shocks and prolonged suspension by the wrists.

35.

The source adds that the Government has not established an adequate juvenile justice

system to ensure that juvenile offenders are dealt with appropriately, and thus has failed to

meet its international obligations, in violation not only of the best interests of the child but

also of applicable standards.

36.

In addition, the source submits that the Government’s failure to allow Mr. Al-Farjani

to appear before a judge to challenge the legality of his arrest and detention constitutes a

flagrant violation of article 9 (3) and (4) of the Covenant.

2 Human Rights Committee, general comment No. 31 (2004), para. 15.

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37.

The source concludes that Mr. Al-Farjani’s detention, which should have been

avoided before and during the trial, is arbitrary, falling under category III, and constitutes a

violation of articles 7, 9 and 10 of the Covenant.

(b)

Response from the Government

38.

On 24 May 2024, the Working Group transmitted the allegations made by the source

to the Government through its regular communications procedure. The Working Group

requested the Government to provide, by 23 July 2024, detailed information about the current

situation of Mr. Al-Farjani and to clarify the legal provisions justifying his continued

detention, as well as its compatibility with the obligations of Libya under international human

rights law, in particular with regard to the treaties ratified by the State. Moreover, the

Working Group called upon the Government of Libya to ensure Mr. Al-Farjani’s physical

and mental integrity.

39.

The Working Group regrets that it received no reply from the Government, nor did

the Government request an extension of the time limit for its reply, as provided for in

paragraph 16 of the Working Group’s methods of work.3 The Working Group notes that it

has not received a reply from the Government in response to its communications since 2006,4

and invites the Government to engage with the Working Group constructively by taking the

opportunity to respond to communications.

2.

Discussion

40.

In the absence of a response from the Government, the Working Group has decided

to render the present opinion, in conformity with paragraph 15 of its methods of work.

41.

In determining whether the detention of Mr. Al-Farjani 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 refute the allegations. In the present case, the Government has

chosen not to challenge the prima facie credible allegations made by the source.

42.

The Working Group wishes to reaffirm that States have the obligation to respect,

protect and fulfil all human rights and fundamental freedoms, including the liberty of person,

and that any national law allowing deprivation of liberty should be made and implemented

in conformity with the relevant international standards set forth in the Universal Declaration

of Human Rights, the Covenant, the Convention on the Rights of the Child and other

applicable international and regional instruments. Consequently, even if the detention is in

conformity with national legislation, regulations and practices, the Working Group is entitled

and obliged to assess the circumstances of the detention and the law itself to determine

whether such detention is also consistent with the relevant provisions of international human

rights law.5

43.

As a preliminary matter, the Working Group notes that Mr. Al-Farjani has been

arrested and deprived of liberty by the Tariq bin Ziyad Brigade, which is affiliated with the

Libyan National Army. Although the Libyan National Army and its affiliated militias,

including the Tariq bin Ziyad Brigade, maintain their own command structure and operate

autonomously from the Government of National Accord, the only Government recognized

by the Security Council,6 it has been reported by the source, without any rebuttal from the

Government, that the payment of salaries to personnel of the Libyan National Army is

ensured by the Government of National Accord. In this regard, the Working Group recalls its

3 A/HRC/36/38.

4 See opinions No. 18/2006, No. 16/2007, No. 1/2010, No. 6/2011, No. 60/2012, No. 41/2013,

No. 3/2016, No. 4/2016, No. 6/2017, No. 39/2018, No. 18/2019, No. 85/2019, No. 13/2020,

No. 62/2021, No. 11/2022, No. 56/2022, No. 41/2023 and No. 48/2023.

5 Opinions No. 1/1998, para. 13; No. 82/2018, para. 25; No. 36/2019, para. 33; No. 42/2019, para. 43;

No. 51/2019, para. 53; No. 56/2019, para. 74; No. 76/2019, para. 36; No. 6/2020, para. 36;

No. 13/2020, para. 39; No. 14/2020, para. 45; and No. 32/2020, para. 29.

6 See Security Council resolution 2259 (2015).

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past jurisprudence on detentions carried out by the Libyan National Army, in which it

expressed that, at a minimum, the Government of National Accord should have known of the

actions carried out by the Libyan National Army and its affiliates and should have taken

measures to protect individuals if such actions overstepped the boundaries of legality.7

44.

Moreover, the Working Group recalls that the positive obligation of the State to

prevent and punish crime and to uphold its human rights duties remains intact irrespective of

whether the actions of the Libyan National Army can be attributed to the Government of

National Accord.8 The Working Group therefore concludes that the Government of Libya,

namely, the Government of National Accord, is fully responsible for the actions of those

militias affiliated with the Libyan National Army that carried out the arrest and subsequent

detention of Mr. Al-Farjani. In doing so, the Working Group recalls the conclusions of the

Office of the United Nations High Commissioner for Human Rights and the United Nations

Support Mission in Libya in 2018 that the reliance of the transition authorities on salary

payments to and public praise for armed groups has empowered the latter and entrenched

their sense of impunity.9

(a)

Category I

45.

The Working Group recalls that a detention is considered arbitrary under category I if

it lacks legal basis.

46.

According to the source’s allegations, unrefuted by the Government, the arrest and

subsequent detention of Mr. Al-Farjani on 27 December 2014 by the armed militia forces

affiliated with General Haftar have no legal basis because the authorities did not present an

arrest warrant issued by a judge in accordance with Libyan law, nor did they inform him

promptly of the reasons for his arrest or the charges against him. Reportedly, it was not until

June 2022 that he was brought before the Military Prosecutor of Benghazi.

47.

The Working Group notes that, under article 9 (1) of the Covenant, no one is to be

deprived of liberty except on such grounds and in accordance with such procedures as are

established by law. Article 9 (2) of the Covenant provides that anyone who is arrested is to

be informed, at the time of arrest, of the reasons for his or her arrest and is to be promptly

informed of any charges against him or her. Similarly, under article 40 (2) (b) (ii) of the

Convention on the Rights of the Child, States are to guarantee that children alleged as or

accused of having infringed the penal law are informed of the reasons for their arrest and

promptly informed of the charges against them. These rights are reinforced by article 9 of the

Universal Declaration of Human Rights. As the Working Group has previously stated, for a

deprivation of liberty to have a legal basis, it is not sufficient that there is a law which may

authorize the arrest. The authorities must invoke that legal basis and apply it to the

circumstances of the case.10 This is typically done through an arrest warrant or arrest order

(or equivalent document).11 The reasons for the arrest must be provided immediately upon

arrest and must include not only the general legal basis of the arrest, but also enough factual

specifics to indicate the substance of the complaint, such as the wrongful act and the identity

of an alleged victim.12

48.

In the present case, the source alleges that, following his arrest, Mr. Al-Farjani, who

was a minor at the time, was not shown an arrest warrant or promptly informed of the reasons

for his arrest. In the absence of a rebuttal from the Government, the Working Group considers

that the authorities’ failure to inform Mr. Al-Farjani of the reasons for his arrest, at the time

of his arrest, was contrary to articles 3 and 9 of the Universal Declaration of Human Rights,

7 Opinion No. 11/2022, para. 31.

8 Ibid., para. 32. See also Opinion No. 62/2021, para. 34.

9 “Abuse behind bars: arbitrary and unlawful detention in Libya”, p. 37.

10 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.

11 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39. In cases of arrests

made in flagrante delicto, the opportunity to obtain a warrant will typically not be available.

12 Human Rights Committee, general comment No. 35 (2014), para. 25; opinion No. 30/2017, paras. 58

and 59; and opinion No. 85/2021, para. 69.

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article 9 (2) of the Covenant and article 40 (2) (b) (ii) of the Convention on the Rights of the

Child.

49.

The source submits, and the Government has not disputed, that for nearly a year and

a half following his arrest, Mr. Al-Farjani was held incommunicado at Bersess prison before

being transferred to Al-Koufiya prison. During this period, Mr. Al-Farjani’s family allegedly

enquired about his situation with the authorities, including the Assistant Public Prosecutor in

Tripoli, but received no information. Reportedly, the Assistant Public Prosecutor denied

having any authority over places of detention under the control of the militias.

50.

As the Working Group has previously stated, holding persons incommunicado

violates their right to challenge the lawfulness of detention before a court under article 9 (4)

of the Covenant.13 Judicial oversight of detention is a fundamental safeguard of personal

liberty and is essential in ensuring that detention has a legal basis. Given that Mr. Al-Farjani

was unable to challenge his detention before a court, his right to an effective remedy under

article 8 of the Universal Declaration of Human Rights and article 2 (3) of the Covenant was

violated. He was also placed outside the protection of the law, in violation of his right to be

recognized as a person before the law under article 6 of the Universal Declaration of Human

Rights and article 16 of the Covenant.

51.

The source submits that, following his arrest on 27 December 2014, Mr. Al-Farjani

was first brought before the Military Prosecutor of Benghazi in June 2022. However,

Mr. Al-Farjani has not been brought before a judge since his arrest in 2014, nor has he been

charged by an authorized court or tried. The Government has offered no justification for the

delay, despite having been given the opportunity to do so.

52.

According to article 9 (3) of the Covenant, anyone arrested or detained on a criminal

charge is to be brought promptly before a judge. As the Human Rights Committee has noted,

48 hours is ordinarily sufficient to satisfy the requirement of bringing a detainee “promptly”

before a judge following his or her arrest; any longer delay must remain absolutely

exceptional and be justified under the circumstances.14 In the absence of information or

justification from the Government, the Working Group finds that Mr. Al-Farjani was not

brought promptly before a judicial authority, in violation of article 9 (3) of the Covenant.

Further, the Working Group recalls that the prosecutorial body cannot be considered a

judicial authority for the purposes of article 9 (3) of the Covenant. 15 In addition, as

Mr. Al-Farjani was a minor at the time of his arrest, the Working Group recalls articles 37 (b)

and 40 (2) (b) (ii) of the Convention on the Rights of the Child, noting that every child

arrested and deprived of his or her liberty should be brought before a competent authority

within 24 hours to examine the legality of the deprivation of liberty or its continuation.16 As

a result, the authorities failed to establish the legal basis for Mr. Al-Farjani’s detention in

accordance with the provisions of the Covenant.

53.

For the reasons set out above, the Working Group finds that the arrest and subsequent

detention of Mr. Al-Farjani are arbitrary and fall under category I.

(b)

Category III

54.

The source asserts that Mr. Al-Farjani’s detention is arbitrary as he has been denied

the right to due process and a fair trial. According to the source, Mr. Al-Farjani was

interrogated and tortured for several weeks in order to extract a confession and was denied

the right to consult with his lawyer.

55.

The Working Group recalls that access to counsel is a right enshrined under

article 14 (3) (b) of the Covenant and principles 11, 15, 17 (1) and 18 of the Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment

13 Opinions No. 45/2017, para. 29; No. 46/2017, para. 22; No. 35/2018, para. 27; No. 9/2019, para. 30;

No. 44/2019, para. 54; No. 45/2019, para. 53; No. 15/2020, para. 56; No. 16/2020, para. 62; and

No. 36/2020, para. 53.

14 Human Rights Committee, general comment No. 35 (2014), para. 33.

15 Ibid., para. 32; A/HRC/45/16/Add.1, para. 35; and opinions No. 14/2015, para. 28; No. 5/2020,

para. 72; No. 6/2020, para. 47; and 41/2020, para. 60.

16 Committee on the Rights of the Child, general comment No. 24 (2019), para. 90.

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and reinforced by article 11 of the Universal Declaration of Human Rights. Article 14 (3) (b)

of the Covenant sets out the right of all persons charged with a criminal offence to have

adequate time and facilities for the preparation of their defence and to communicate with

counsel of their own choosing. Where a minor is detained, States must ensure that the child

is guaranteed legal or other appropriate assistance from the outset of the proceedings, in the

preparation and presentation of the defence, and until all appeals and/or reviews are

exhausted.17

56.

The Working Group takes note of the source’s uncontested allegations that

Mr. Al-Farjani had no access to his lawyer, despite his family appointing one immediately

after his arrest, and that he was interrogated immediately after his arrest. Moreover, according

to the source, the authorities told Mr. Al-Farjani’s lawyer that there was no need for a lawyer

to visit Mr. Al-Farjani as no legal procedure had been initiated against him. In this context,

the Working Group recalls that all persons deprived of their liberty are to have the right to

legal assistance by counsel of their choice, at any time during their detention, including

immediately after their apprehension, and that such access is to be provided without delay.18

The right to legal assistance is an essential element of the right to fair trial, as it serves to

ensure that the principle of equality of arms is duly observed.19 Any denial of access to

lawyers substantially undermines and compromises an accused individual’s capacity to

defend him or herself in any judicial proceedings.

57.

The Working Group considers that the failure to provide Mr. Al-Farjani with access

to his lawyer from the outset of his detention was in violation of article 14 (3) (b) of the

Covenant and article 10 of the Universal Declaration of Human Rights and was contrary to

principle 9 of the 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 principles 11, 15, 17 (1) and 18 of the Body of Principles for the Protection of All

Persons under Any Form of Detention or Imprisonment.

58.

The Working Group notes the source’s unrebutted allegations that Mr. Al-Farjani has

remained in detention for approximately 10 years, since his arrest on 27 December 2014,

without being afforded the right to be tried within a reasonable time and without undue delay.

In fact, the source submits that Mr. Al-Farjani has not been charged and was only brought

before the Military Prosecutor of Benghazi in June 2022. The Government has not provided

any justification for Mr. Al-Farjani’s detention without trial for nearly 10 years. The right to

be tried within a reasonable time and without undue delay is one of the fair trial guarantees

embodied in article 14 (3) of the Covenant. The Working Group recalls that the

reasonableness of any delay in bringing a case to trial must be assessed in the circumstances

of each case, taking into account the complexity of the case, the conduct of the accused and

the manner in which the matter was dealt with by the authorities.20 In the light of the fact that

Mr. Al-Farjani has not been tried even though he has been detained for the past 10 years, and

absent any explanation from the Government to justify such a long delay, the Working Group

finds a violation of his rights under article 14 (3) (c) of the Covenant.

59.

Further, in the Working Group’s view, Mr. Al-Farjani’s pretrial detention without an

individualized judicial assessment since his arrest 27 December 2014 clearly undermines the

presumption of innocence guaranteed under article 11 (1) of the Universal Declaration of

Human Rights and principle 36 (1) of the Body of Principles for the Protection of All Persons

under Any Form of Detention or Imprisonment.21

17 Committee on the Rights of the Child, general comment No. 24 (2019), para. 49. See also the United

Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), rule

15.

18 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

Deprived of Their Liberty to Bring Proceedings Before a Court, principle 9 and guideline 8; Human

Rights Committee, general comment No. 35 (2014), para. 35; A/HRC/45/16, paras. 50–55; and

A/HRC/48/55, para. 56. See also A/HRC/27/47, para. 13.

19 See, for example, opinion No. 35/2019.

20 Human Rights Committee, general comments No. 32 (2007), para. 35; and No. 35 (2014), para. 37.

21 See also article 16 of the Arab Charter on Human Rights.

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9

60.

The Working Group is concerned about the source’s unrebutted allegations of

psychological and physical torture lasting several weeks against Mr. Al-Farjani to extract a

confession immediately following his arrest, as a result of which he sustained injuries in his

joints. In the Working Group’s view, not only is torture a grave violation of human rights per

se, but it also undermines the ability of persons to defend themselves and hinders their

exercise of the right to a fair trial, in particular in the light of the right to be presumed innocent

under article 14 (2) and the right not to be compelled to confess guilt under article 14 (3) (g)

of the Covenant. Further, as the Working Group has previously stated, the admission into

evidence of a statement allegedly obtained through torture or ill-treatment renders the entire

proceedings unfair, regardless of whether other evidence was available to support the

verdict.22

61.

The Working Group concludes that the violations of Mr. Al-Farjani’s right to a fair

trial are of such gravity as to render his detention arbitrary under category III.

(c)

Concluding remarks

62.

The Working Group is concerned that Mr. Al-Farjani, a minor at the time of his arrest,

has been arbitrarily deprived of his liberty for nearly 10 years without having been charged

with or tried for a crime. Moreover, the Working Group refers to the source’s submission that

Mr. Al-Farjani has been held in a cell with adults since the time of his arrest and recalls the

Government’s obligation, under article 37 (c) of the Convention on the Rights of the Child,

to ensure that every child deprived of liberty is separated from adults unless it is considered

in the child’s best interest not to do so.

63.

Given its finding that Mr. Al-Farjani was and continues to be arbitrarily deprived of

his liberty without any legal basis, the Working Group reiterates that the duty to comply with

international human rights standards rests with all State organs, officers and agents, as well

as all other natural and legal persons.

3.

Disposition

64.

In the light of the foregoing, the Working Group renders the following opinion:

65.

The deprivation of liberty of Abdurrahman Abduljalil Mohamed al-Farjani, 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.

66.

The Working Group requests the Government of Libya to take the steps necessary to

remedy the situation of Mr. Al-Farjani without delay and bring it into conformity with the

relevant international norms, including those set out in the Universal Declaration of Human

Rights and the International Covenant on Civil and Political Rights.

67.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. Al-Farjani immediately and accord him

an enforceable right to compensation and other reparations, in accordance with international

law.

68.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of

Mr. Al-Farjani and to take appropriate measures against those responsible for the violation

of his rights.

69.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

22 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.

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4.

Follow-up procedure

70.

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. Al-Farjani has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Al-Farjani;

(c)

Whether an investigation has been conducted into the violation of

Mr. Al-Farjani’s rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of Libya with its international obligations in line with the

present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

71.

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.

72.

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.

73.

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.23

[Adopted on 30 August 2024]

23 Human Rights Council resolution 51/8, paras. 6 and 9.