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.