Opinion; Subjects: DJIBOUTI, 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.25-03308 (E) 050525 060525
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 101st session, 11–15 November 2024
Opinion No. 67/2024 concerning Abdoulkarim Aden Cher (Djibouti)*
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 19 July 2024 the Working Group
transmitted to the Government of Djibouti a communication concerning Abdoulkarim Aden
Cher. The Government replied to the communication on 29 August and 3 September 2024.
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).
* Mumba Malila did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/67
General Assembly
Distr.: General
11 March 2025
English
Original: French
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1.
Submissions
(a)
Communication from the source
4.
Abdoulkarim Aden Cher is a citizen of Djibouti born on 25 June 1986. He usually
resides in the city of Arta in Djibouti. According to the source, Mr. Aden Cher was the
national secretary of the African Peer Review Mechanism from 2012 to 2019, Minister of the
Budget from May 2019 to January 2022 and an economist at the Ministry of Economic
Affairs with responsibility for structural programmes. He has also been a member of the
Independent National Electoral Commission and the Independent Regional Electoral
Commission since 2016 and 2017 respectively, and is the managing director of Société
Internationale des Hydrocarbures de Djibouti.
(i)
Context
5.
The source explains that the President of Djibouti has been in power since 1999 and
has been re-elected four times since then, having the Constitution amended several times for
this purpose. Past elections have been criticized for their lack of transparency and the
opposition has faced multiple obstacles to campaigning. Without further constitutional
reform, the President will not be entitled to stand in the 2026 presidential election due to his
age.
6.
According to the source, the Government of Djibouti carries out numerous arbitrary
arrests of political opponents, human rights activists and journalists, who are often subjected
to torture, ill-treatment and prolonged detention. The Government also allegedly uses
intimidation, surveillance and wiretapping to silence human rights defenders. Furthermore,
every election period allegedly gives rise to a purge of the political opposition by the ruling
power.
7.
Mr. Aden Cher has had a career as a senior civil servant and has been involved in
politics for a long time. His opposition to the Government’s policies was purportedly already
evident at the time of the 1999 presidential election.
8.
In May 2019, the President supposedly attempted to bring Mr. Aden Cher into the
Government out of a desire to unite different tribes within it and, according to the source,
legitimize his power. Mr. Aden Cher is said to have openly refused.
9.
On 2 January 2022, Mr. Aden Cher was suddenly removed from his position as
Minister of the Budget by presidential decree and officially dismissed for a “breach of trust”
with the President. The press reported that he had been removed from his post for criticizing
the Prime Minister for using his signature without his consent to make withdrawals from the
central bank with the complicity of the Secretary-General of the Office of the Prime Minister,
who is the son of the First Lady.
(ii)
Arrest and detention
10.
On the morning of 3 March 2022, Mr. Aden Cher reportedly posted a short political
lampoon on social media in which he denounced bad governance and “Caesarism” and
advocated positive and inclusive change in Djibouti. He was arrested the same day, at around
5 p.m., at his home. According to the source, the captain of the Investigation and
Documentation Department of the National Gendarmerie arrived at Mr. Aden Cher’s home
accompanied by National Gendarmerie vehicles and its special weapons and tactics team.
The arrest was purportedly ordered by the State prosecutor, but no documents were presented
to Mr. Aden Cher at the time of his arrest or the search of his home.
11.
Following his arrest, Mr. Aden Cher was placed in custody and taken to the premises
of the Security and Documentation Service of the National Police Force.
12.
The source notes that, according to the authorities, Mr. Aden Cher was arrested and
taken into custody following the publication of a report by the State Inspectorate General on
public spending, on suspicion of embezzlement of public funds, corruption and influence
peddling. This report was reportedly forwarded to the public prosecutor’s office on 1 March
2022. On 6 March 2022, while Mr. Aden Cher was still in police custody, the Prosecutor
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3
General issued a press release2 referring to a “clean hands” operation to dismantle a network
involved in the embezzlement of several billion Djibouti francs within the Ministry of the
Budget. According to this press release, the report of the State Inspectorate General
established that the Ministry of the Budget had embezzled public funds by allocating
substantial sums for goods and services that appeared to be largely fictitious, with Mr. Aden
Cher directly implicated as the main instigator of this scheme. According to the source, the
unprecedented distribution of this press release in French and English attests to the Prosecutor
General’s desire to give the case wide publicity, particularly in view of Mr. Aden Cher’s
popularity, and demonstrates the media implications of this case for the Government.
13.
After four days in police custody, Mr. Aden Cher appeared before an investigating
judge. He was charged on 7 March 2022, released and placed under court supervision.
14.
After requesting permission from the Prosecutor General and in response to the latter’s
press release, Mr. Aden Cher gave an interview to an independent radio station, which was
posted on an online video social media platform in March 2022 and relayed on numerous
social networks. During the interview, Mr. Aden Cher proclaimed his innocence and
denounced the proceedings as purely politically motivated. He also criticized the President
and claimed that the Prosecutor General, who was acting on the President’s behalf, was
attempting to tarnish his image as part of a ploy to eliminate him from the political scene. He
pointed out that he had collaborated on a State audit, had prepared reports that were brought
to the President’s attention with the aim of exposing the abuse of the State apparatus to benefit
the private interests of certain government officials, and had expressed his opposition to such
practices. Mr. Aden Cher also recalled that, as Minister of the Budget, his policy had been
centred on increasing the independence of bodies responsible for monitoring the use of public
funds. He denounced the impunity enjoyed by the people who were embezzling public funds
and asserted that what he had actually been accused of was his political advocacy and his
fight against patronage and favouritism. According to the source, by broadcasting that video,
Mr. Aden Cher was positioning himself as an opponent of the Government.
15.
The source reports that, in his press release of 6 March 2022, the Prosecutor General
portrayed Mr. Aden Cher as the instigator of a fraudulent scheme for embezzling public
funds, without noting that almost all the vendors implicated had signed cooperation
agreements with the State before Mr. Aden Cher was appointed Minister of the Budget.
According to the source, it was this patronage system that Mr. Aden Cher wanted to eradicate.
16.
The source points out that neither the date on which the alleged offences were
committed nor the details of the transactions, transfers or amounts involved are specified in
the indictment. It notes that, in the absence of any complaints or accusations, the audit report
issued by the State Inspectorate General constitutes the sole basis for the proceedings against
Mr. Aden Cher.
17.
On 23 March 2022, a few days after the publication of his interview, Mr. Aden Cher
was placed in pretrial detention by decision of the indictment division of the Court of Appeal
pursuant to articles 133–145 of the Code of Criminal Procedure, following an appeal lodged
by the public prosecutor’s office against the decision of the investigating judge to place
Mr. Aden Cher under court supervision. An appeal lodged by Mr. Aden Cher against this
decision of the Court of Appeal was subsequently rejected by the Supreme Court.
18.
The source notes that Mr. Aden Cher was arrested on suspicion of passive bribery,
influence peddling and obstructing the law by a person vested with public authority in the
performance of his or her duties, pursuant to articles 200, 201, 206 and 208 of the Criminal
Code and in accordance with the procedure laid down in articles 64 and 64-1 of the Code of
Criminal Procedure.
19.
Mr. Aden Cher has been in pretrial detention since 23 March 2022 without a trial date
having been set. The case has been stagnating for months, and no release date has yet been
set. The source notes that, in view of the serious penalty that is provided for under article 206
of the Criminal Code, the possible duration of pretrial detention is unlimited, as any
provisions limiting the maximum duration of pretrial detention apply only for ordinary and
2 Prosecutor General, press release No. 46/PG/D122, 6 March 2022.
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minor offences and when an accused person has at no time been sentenced to more than
3 months’ imprisonment.
(iii)
Conditions of detention
20.
Mr. Aden Cher is reportedly being held at Gabode Central Prison in Djibouti, which
is under the effective control of the prison service, which is itself under the supervision of
the Ministry of Justice and therefore under the direct authority of the Head of State.
21.
The source denounces the appalling conditions of detention in this prison, which have
been reported by various human rights organizations. In particular, the source points to prison
overcrowding, deplorable hygiene and a severe lack of proper food and healthcare. According
to the source, Mr. Aden Cher is being held in conditions that amount to torture. The source
observes that, as a former minister and public figure, Mr. Aden Cher is supposed to have an
individual cell for security reasons. However, he is being held in a small, basic and unsanitary
cell that is infested with rats, cockroaches and lizards, together with two fellow inmates who
are serving sentences for serious offences under ordinary criminal law. Furthermore, he is
forced to sleep on a thin mattress on a plastic mat on the floor, despite suffering from back
pain. The toilets are not separated from the rest of the cell, which has no windows and consists
of a concrete ceiling, floor and walls with a door made of metal bars.
22.
Mr. Aden Cher reportedly has no access to any activities outside his cell. Nor does he
have access to a medical clinic, a dispensary or a library. He is able to receive visits from his
family once a week, but these take place in the presence of two prison officers and are
allegedly listened to and transcribed onto a computer.
23.
The source reports that, on 22 November 2023, at around 3 a.m., shortly after news
had leaked that his case had been referred to foreign lawyers, the concrete wall of Mr. Aden
Cher’s cell caught fire as if it had been doused with a flammable substance. The inmates
called for help, but it was only 30 minutes later that the guards came to their aid. The source
notes that it is impossible for a fire to break out in concrete cells, which contain no flammable
components. The source asserts that this was an intentional act that was carried out in
response to reports in the press that Mr. Aden Cher was about to lodge an appeal against his
detention. One of Mr. Aden Cher’s lawyers has asked the investigating judge to open an
investigation into the circumstances surrounding the fire, which has so far produced no
results.
24.
The source notes that the conditions in which Mr. Aden Cher is being held are putting
his life at real and substantial risk. The source points out that he has been detained without
any progress whatsoever being achieved in the investigation of his case since March 2022,
and with no prospect of being tried within a reasonable time period. According to the source,
such detention is tantamount to psychological torture.
25.
Moreover, the source reports that Mr. Aden Cher’s family is being subjected to
pressure in retaliation for his actions. A member of his family was ousted from a position at
a high-level department of the Ministry of Foreign Affairs and forced to leave the country.
Another member had his passport confiscated by the authorities and his accounts frozen,
despite not being implicated in the case concerning Mr. Aden Cher.
(iv)
Proceedings
26.
The source recalls that, on 2 January 2022, Mr. Aden Cher was removed from his
position as Minister of the Budget by presidential decree for breach of trust. The source points
out that the budget portfolio is one of the most senior positions in the Government, with
oversight of the budgets of other ministerial portfolios.
27.
As part of the proceedings against him, Mr. Aden Cher was heard by the investigating
judge on 27 March and 4 May 2022. Confrontations with two other individuals, one of whom
was an accused person, took place on 9 and 15 June 2022. Mr. Aden Cher has submitted
several applications for release, all of which were purportedly rejected on the sole ground of
the seriousness of the alleged acts and without the citing of any specific and detailed
information from the proceedings, even though this is a legal obligation. The same grounds
were repeated in rulings made by the courts of appeal and the Supreme Court. The source
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notes that the Supreme Court ruled in final instance, thereby excluding any possibility of a
court appeal against the decision to place Mr. Aden Cher under a committal order.
28.
The source points out that, to date, the investigation of the case has not been
completed, no measures of investigation have been scheduled and no date for a hearing on
the merits has been set. The source asserts that there is nothing temporary about Mr. Aden
Cher’s detention, since he has been held since March 2022 and no procedural actions have
been taken since 15 June 2022. Since then, Mr. Aden Cher has reportedly requested the
investigating judge to carry out measures of investigation on six occasions. In particular, he
has requested a confrontation with the persons from whom he allegedly solicited illegal
benefits, and with the authors of the report that triggered the proceedings against him. The
investigating judge has at no point responded to these requests.
29.
The source reports that on 19 February 2024, Mr. Aden Cher lodged an appeal with
the indictment division against the implicit rejection of his requests, in order to put on record
that his requests for measures of investigation to be carried out remained unanswered, to
request that they be carried out and to secure his release. In a ruling dated 7 March 2024, the
indictment division granted the requests for investigation but rejected the request for release.
Nonetheless, the confrontations requested by Mr. Aden Cher have not yet taken place and
have not been scheduled. The source is thus concerned that the case might be closed by the
investigating judge without the actions ordered by the indictment division being carried out.
(v)
Legal analysis
30.
The source submits that Mr. Aden Cher’s detention is arbitrary under categories II, III
and V.
a.
Category II
31.
The source recalls that, under the Constitution of Djibouti, universal values of human
rights, as defined in the Universal Declaration of Human Rights and the African Charter on
Human and Peoples’ Rights, are placed at the top of the pyramid of norms.
32.
According to the source, Mr. Aden Cher was arrested for no other reason than a desire
to prevent him from exercising his rights to freedom of expression, association and peaceful
assembly, which are guaranteed respectively under articles 19 and 20 of the Universal
Declaration of Human Rights and articles 19 and 21 of the Covenant.
33.
In support of this assertion, the source notes that Mr. Aden Cher was arrested on
3 March 2022, in a context of threats and widespread and systematic arrests of political
opponents and dissenting voices, not long after he had, on the same day, denounced bad
governance and “Caesarism” within the Government on social media. The source also notes
that Mr. Aden Cher was detained immediately after he made statements in an interview that
was broadcast on an online video social media platform in which he spoke openly about
patronage, nepotism and corruption at the highest levels of government.
34.
The source explains that the reprisals taken against Mr. Aden Cher by the executive
branch have boosted his popularity and political legitimacy, as illustrated by the spontaneous
popular demonstrations in support of him that were held after his dismissal and when he was
released from police custody. According to the source, the timing of Mr. Aden Cher’s arrest
and detention clearly demonstrate a desire to prevent him from damaging the Government.
35.
The source recalls that the Working Group has developed an extensive body of
established precedents on the arbitrary nature of detentions resulting from the exercise of the
rights to freedom of religion, opinion, expression, assembly, association, involvement in
public affairs or movement. In this respect, the source notes an opinion in which the Working
Group concluded that a detention was arbitrary because it resulted from the exercise of the
freedoms of expression, association and participation in a political party.3
3 Opinion No. 25/2016, para. 29.
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b.
Category III
36.
The source submits that Mr. Aden Cher’s detention is arbitrary under category III,
since he has been denied the guarantees of a fair trial provided for in the Covenant, the
Universal Declaration of Human Rights and the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment.
37.
According to the source, the conditions of Mr. Aden Cher’s arrest described above
attest to the violation of article 9 of the Covenant, which provides that nobody is to be
deprived of his or her liberty except on such grounds and in accordance with such procedure
as are established by law.4 The source notes that Mr. Aden Cher’s arrest took place on the
very evening of his first publication of a political lampoon on social media in which he
denounced bad governance and “Caesarism”. The source asserts that Mr. Aden Cher’s arrest
was brought about by this statement.
38.
According to the source, the principle of equality of arms established in article 14 (1)
of the Covenant requires that both parties have the same procedural rights and, in particular,
that each side is to be given the opportunity to contest all the arguments and evidence adduced
by the other party.5
39.
In this respect, the source states that Mr. Aden Cher was held in police custody for
96 hours, without legal assistance, despite his requests. Mr. Aden Cher’s lawyer was not in a
position to prepare his client’s defence effectively, as he was able to meet with him only a
few minutes before he was brought before the investigating judge on the morning of 7 March
2022, only a few moments after having had access to the file. Accordingly, the source argues
that Mr. Aden Cher was also denied his right to communicate freely with his lawyer and to
have adequate time for the preparation of his defence.
40.
The source also asserts that Mr. Aden Cher’s right to an independent and impartial
tribunal has been violated, in breach of article 14 (1) of the Covenant. The source points out
that, as noted by the Human Rights Committee, the requirement of independence refers in
particular to the actual independence of the judiciary from political interference by the
executive branch and legislature.6 According to the source, the standard of independence and
fairness must be measured by objective and reasonable criteria. The source notes that,
according to the Human Rights Committee, it is generally for the courts of States parties to
the Covenant to review facts and evidence, or the application of domestic legislation, in a
particular case, unless it can be shown that such evaluation or application was clearly
arbitrary or amounted to a manifest error or denial of justice, or that the court otherwise
violated its obligation of independence and impartiality.7
41.
The source thus argues that the hearing of 23 March 2022, concerning the appeal by
the public prosecutor’s office against the order for Mr. Aden Cher to be placed under court
supervision, was tainted by clear bias. It emphasizes the Supreme Court’s rejection of the
three applications to declare the investigation void, even though there were numerous
procedural irregularities. First, the source asserts that the file contains no complaints or
accusations, and that the public prosecutor’s office acted on its own initiative following the
publication of the 31 December 2021 audit report, in violation of the criminal law of Djibouti.
Secondly, the source argues that the police detention procedure is void, since Mr. Aden Cher
was denied legal assistance during that time. Thirdly, the source submits that Mr. Aden Cher
was charged for criminal acts that he allegedly committed in the exercise of his ministerial
functions without the National Assembly having at any point convened to vote for his
indictment by a two-thirds majority of deputies in a public ballot, as required under article 84
of the Constitution regarding the High Court. According to the source, this violation of
constitutional provisions alone should have invalidated the proceedings. Lastly, the source
notes that article 501 of the Code of Criminal Procedure provides that acts allegedly
committed by a minister in the exercise of his or her duties must be investigated by a special
4 See also the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, principles 2 and 36 (2).
5 Human Rights Committee, general comment No. 32 (2007), para. 13.
6 Ibid., para. 19.
7 Ibid., para. 26.
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court. In the present instance, however, Mr. Aden Cher’s case is being investigated by an
ordinary court judge under the procedure provided for by ordinary law, and not by a Supreme
Court judge. In view of the foregoing, the source concludes that the courts that were called
upon to investigate and adjudicate on the proceedings related to Mr. Aden Cher’s detention
and the applications to declare the proceedings void manifestly lack jurisdiction and are
biased.
42.
Furthermore, the source argues that the authorities have violated Mr. Aden Cher’s
right to be presumed innocent, as guaranteed by article 14 (2) of the Covenant. In support of
this assertion, it emphasizes the public statement made by the Prosecutor General
immediately after Mr. Aden Cher’s arrest, in which he described the former minister as the
“instigator” of a fraudulent scheme for embezzling public funds. The source notes that, at the
time of this statement, Mr. Aden Cher was in police custody and had not been charged. It
adds that the press release, which was issued in French and English to reach a wider audience,
stated that the report established that the Ministry had embezzled public funds and that the
investigation had confirmed the existence of collusion. According to the source, these claims
fall within the exclusive jurisdiction of the trial judges.
c.
Category V
43.
The source submits that Mr. Aden Cher’s detention is arbitrary given that he was
deprived of his liberty because of his political opinions. In fact, according to the source,
Mr. Aden Cher was targeted by the authorities as a political opponent. The source points out
that, after being charged and placed under court supervision, Mr. Aden Cher denounced a
political plot in the interview broadcast on an online video social media platform in March
2022. According to the source, this interview constitutes a political testament and the true
reason for Mr. Aden Cher’s detention.
44.
The source points out that the Working Group has already concluded that detention is
arbitrary under category V when political affiliation is the primary reason for the conduct of
proceedings against a person whom the authorities intend to prevent from exercising his or
her right to freedom of expression, association and assembly,8 as in the present case.
(b)
Response from the Government
45.
On 19 July 2024, the Working Group transmitted a communication concerning
Mr. Aden Cher to the Government in which it requested it to specify the legal provisions
justifying his detention and their compatibility with the obligations of Djibouti under
international human rights law, and in particular with the treaties ratified by the State.
Moreover, it called upon the Government to ensure Mr. Aden Cher’s physical and mental
integrity. The Working Group received the Government’s response in two submissions, on
29 August and 3 September 2024, in both cases within the deadline set.
46.
In its response, the Government explains that, on 1 March 2022, the State Inspectorate
General, a permanent monitoring and inspection body for local authorities and government
agencies, transmitted an audit report on the public expenditure situation as at 31 December
2021 to the public prosecutor’s office. The report revealed several irregularities; in particular,
the budget line of the Ministry of the Budget had been exceeded. According to the
Government, it was this report that enabled the criminal investigation police to launch an
investigation.
47.
The Government states that Mr. Aden Cher had legal assistance when he was taken
into custody on 3 March 2022. It points out that all persons in police custody are guaranteed
the right to counsel under the Constitution and the Code of Criminal Procedure.
48.
With regard to the contention that neither the date on which the alleged offences were
committed nor the details of the transactions, transfers or amounts involved are specified in
Mr. Aden Cher’s indictment, the Government stresses that no reference to this obligation is
made in the laws of Djibouti, nor do those laws provide that such information is to be included
in the application to open an investigation. It adds that, as from 1 February 2022, when he
8 See opinion No. 39/2014.
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ceased to exercise his ministerial functions pursuant to a decree, Mr. Aden Cher was no
longer a member of the Government within the meaning of article 501 of the Code of
Criminal Procedure. The public prosecutor’s office thus acted entirely lawfully when, on
7 March 2022, it opened a preliminary investigation against him under ordinary law. Mr.
Aden Cher was accused of embezzling public funds, massive corruption, influence peddling
and obstructing the law, in violation of articles 24, 200, 201, 206 and 208 of the Criminal
Code.
49.
In view of the seriousness of the charges against him, Mr. Aden Cher was placed in
pretrial detention on 23 March 2022 by order of the indictment division, and that decision
was subsequently upheld by the Supreme Court. The Government maintains that the Code of
Criminal Procedure does not provide for any limits on the duration of pretrial detention in
criminal cases. According to the Government, it is clear from the case file that Mr. Aden
Cher’s detention was essential to the proper conduct of the preliminary investigation.
50.
With regard to the assertion that the investigation of this case is stagnating and
unjustifiably slow, the Government refers to the secrecy of inquiry proceedings, which it
argues does not permit it to provide details of the documents in the file or the numerous
measures of investigation that have been carried out. However, it points out that the file was
transmitted to the State prosecutor on 28 March 2024 and that, on 25 April 2024, the State
prosecutor submitted his final application to the appeal court for referral to the trial court.
The Government argues that the case is in its closing phase and that the length of the
investigation is a reflection of its scale given the various steps that needed to be taken. It also
points out that the Code of Criminal Procedure does not provide for any time limit for the
conclusion of the preliminary investigation.
51.
The Government rejects all the allegations, which it considers spurious and malicious
with regard to the Djiboutian judicial system. It points out that judicial independence is
guaranteed under articles 71 and 72 of the Constitution. Furthermore, it is the view of the
Government that the allegation that Mr. Aden Cher’s right to an independent and impartial
tribunal has been violated is unsubstantiated by any evidence.
52.
The Government stresses that, in the present case, an investigating judge has
conducted the investigation both against and in favour of the defendant, with due regard for
the presumption of innocence. It notes that multiple appeals, including the requests for release
of persons charged, have contributed to the prolongation of the proceedings. In the present
case, the complexity of the facts, the large number of people implicated, the multiple appeals,
the various expert appraisals carried out, the criminal nature of the offence and the need to
identify the suspected pecuniary damage caused justify the delay in the preliminary
investigation. However, the Government points out that the investigation is now complete,
and that the indictment division of the appeal court will now have to decide whether or not
to refer Mr. Aden Cher to the trial court.
53.
The Government asserts that freedom of expression is protected under the
Constitution. It emphasizes that the State is stepping up measures to develop information and
communication technologies with a view to promoting freedom of expression and freedom
of the press. In particular, it has adopted several laws designed to ensure that the media enjoy
freedom
and
independence
in
exercising
their
activities
and
that
citizens
have the right to high-quality, objective information.9 Moreover, the National Commission
on Communication, a media regulatory body, ensures freedom and protection of the press in
compliance with the law and ethical standards.
54.
Lastly, the Government asserts that, under the Constitution and the Covenant, every
citizen is guaranteed the right to take part in the conduct of public affairs. In this context,
Djibouti regularly organizes free and transparent elections that are monitored by a number of
international and national institutions. It notes that Mr. Aden Cher, as one of the major actors
in the organization of elections in Djibouti, including as President of the Independent
Regional Electoral Commission in 2016, has at no point reported any irregularities or
9 Act No. 97/AN/20/8ème L of 16 November 2020 on Freedom of Communication and Media Ethics;
and Organic Act No. 96/AN/20/8ème L of 14 January 2021 on Political Pluralism in Election
Campaigns.
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shortcomings in the organization of the many elections that have taken place in Djibouti since
the adoption of the Constitution in September 1992.
(c)
Additional comments from the source
55.
The response of the Government was submitted to the source for further comments,
which were provided on 23 September 2024.
56.
The source submits that the Government, in its reply, provides an abstract and
decontextualized analysis of the legal framework in Djibouti and does not adequately address
the arguments put forward regarding the violations of Mr. Aden Cher’s rights.
57.
In its additional comments, the source contends that the Government provides no
response or rebuttal to the assertion that Mr. Aden Cher did not receive legal assistance when
he first requested it while in police custody, and that he did not receive legal assistance until
shortly before the end of his 96 hours in police custody. The source maintains that the exercise
of the right to a defence and respect for the principle of a fair trial must be effective, and that
by failing to respond to the above complaints, the Government has failed to prove that these
rights were not violated.
58.
The source notes that the fact that Mr. Aden Cher had not been a member of the
Government since 1 February 2022 can in no way justify failure to use the special procedure
provided for by the provisions of article 501 of the Code of Criminal Procedure, unless the
alleged acts could only have been committed between 1 February and 7 March 2022, which
is not the case. The source argues that the application of these provisions is determined by
the nature of the functions performed by the accused person at the time of the commission of
the alleged offences.
59.
The source also argues that the fact that Mr. Aden Cher appealed to the Supreme Court
against the ruling of the indictment division in no way means that this appeal was effective.
The source notes that the Government appears to implicitly acknowledge that neither the date
on which the alleged offences were committed nor the amount allegedly misappropriated was
specified in the application to open an investigation, which in the source’s view deprives
Mr. Aden Cher of his right to defend himself.
60.
The source further asserts that the unreasonable delays in the investigation and the
slowness of progress made in the organization of the trial constitute violations of Mr. Aden
Cher’s rights. The source notes that after a long period of inertia, the investigating judge,
who refused the requests for confrontations made by Mr. Aden Cher, who had not been heard
since his first arraignment, finally transmitted the file to the State prosecutor on 28 March
2024 for the purpose of submitting his final application. The source notes in this respect that
the file was transmitted just a few days after the source’s lawyers had referred the matter to
the Working Group on 18 March 2024, and after this information had been published in the
press.
2.
Discussion
61.
The Working Group thanks the source and the Government for their submissions.
62.
In determining whether Mr. Aden Cher’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 requirements
constituting arbitrary detention, the burden of proof should be understood to rest upon the
Government if it wishes to refute the allegations. Mere assertions by the Government that
lawful procedures have been followed are not sufficient to rebut the source’s allegations.10
(a)
Category I
63.
The Working Group will first consider whether there have been violations under
category I, which concerns deprivation of liberty without a legal basis. The Working Group
10 A/HRC/19/57, para. 68.
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notes that several of the arguments put forward by the source under Category III fall more
appropriately under Category I. It will therefore examine them in this section.
64.
The source alleges that Mr. Aden Cher has not been detained on a proper legal basis.
The source claims in particular that no documents were presented to Mr. Aden Cher at the
time of his arrest or the search of his home. Furthermore, the source contends that, in charging
Mr. Aden Cher with criminal acts that he allegedly committed in the exercise of his
ministerial duties, the State violated the procedure set out in article 501 of the Code of
Criminal Procedure.
65.
The Government, in its response, does not address the argument that no arrest warrant
was issued and maintains that the procedure provided for in article 501 of the Code of
Criminal Procedure does not apply, since Mr. Aden Cher was no longer a member of the
Government at the time of his arrest in March 2022. The Government does not deny that the
alleged crimes were committed during the period in which Mr. Aden Cher held ministerial
office. Moreover, the source points out that the audit report submitted by the State
Inspectorate General to the public prosecutor’s office that allegedly prompted the
investigation concerning Mr. Aden Cher covered the period until 31 December 2021.
66.
Pursuant to article 9 (1) of the Covenant, no one may be deprived of his or her liberty
except on such grounds and in accordance with such procedure as are established by law.
The Working Group has previously stated that in order for a deprivation of liberty to have a
legal basis, it is not sufficient that there is a law that may authorize the arrest. The authorities
must invoke that legal basis and apply it to the circumstances of the case.11 This is typically
done through an arrest warrant or arrest order (or equivalent document).12 Taking note of the
comments from the source and in the absence of a reply from the Government on this point,
the Working Group concludes that Mr. Aden Cher was not served with an arrest warrant or
equivalent document. He was therefore not informed of the reasons for his arrest until he
appeared in court four days later.
67.
The Working Group takes note of the source’s arguments concerning article 84 of the
Constitution and article 501 of the Code of Criminal Procedure. However, it refrains from
examining these matters of internal law. In view of the absence of a response from the
Government as to why an arrest warrant was not issued, the Working Group is nevertheless
of the opinion that a violation of article 9 of the Covenant has been demonstrated.
68.
The source further alleges that Mr. Aden Cher was brought before the investigating
judge only after he had spent four days in police custody. The Government replies that, in
accordance with the Code of Criminal Procedure, the investigating judge placed the accused
person under court supervision on 7 March 2022, four days after his arrest.
69.
Article 9 (3) of the Covenant provides that anyone arrested or detained on a criminal
charge is to be brought promptly before a judge. The Human Rights Committee has observed
that a period of 48 hours is ordinarily sufficient to satisfy this requirement, and that any longer
delay must remain absolutely exceptional and be justified under the circumstances.13
70.
The Government has provided no explanation to justify why Mr. Aden Cher did not
appear before the investigating judge until four days after his arrest. The Working Group
therefore concludes that the Government has violated article 9 (3) of the Covenant. This
violation was aggravated by the fact that Mr. Aden Cher’s lawyer was allowed to meet with
him only a few minutes before his appearance before the investigating judge on the morning
of 7 March 2022, just a few moments after he had been given access to the file.
71.
The source submits that Mr. Aden Cher’s pretrial detention constitutes a violation of
his rights, while the Government responds that this measure was duly ordered on the basis of
internal law. Article 9 (3) of the Covenant provides that it should not be the general rule that
persons awaiting trial are to be detained in custody. The Working Group recalls the opinion
11 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.
12 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.
13 Human Rights Committee, general comment No. 35 (2014), para. 33. See also opinion No. 67/2019,
para. 64.
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11
of the Human Rights Committee that pretrial detention should be an exception and as brief
as possible, and should be based on an individualized determination that it is reasonable and
necessary, taking into account all the circumstances, for example to prevent flight,
interference with evidence or the recurrence of crime. The courts must examine whether
alternatives to pretrial detention, such as release on bail or other conditions, would render
detention unnecessary in the present case.14 In this case, the Government’s response is that
the extension of pretrial detention is justifiable on the grounds that no restrictions on its
duration are imposed under the Code of Criminal Procedure. It attributes the extension of the
pretrial detention in particular to the conduct of numerous measures of investigation. It should
be noted that the Government has not attempted to justify the lengthy period of pretrial
detention to which Mr. Aden Cher has been subjected by referring to the factors set out by
the Human Rights Committee. Nor has it attempted to demonstrate that alternatives to pretrial
detention were considered and deemed inappropriate in the context of this case.
72.
The Working Group reiterates that the fact that a State is following its own domestic
legislation does not in itself prove that the legislation conforms with the obligations that the
State has undertaken under international human rights law. No State can legitimately avoid
its obligations under international human rights law by citing its domestic laws and
regulations.15 In the present case, the Working Group is of the opinion that Mr. Aden Cher’s
pretrial detention, which has now lasted for more than 2 years and 6 months, constitutes a
violation of article 9 (3) of the Covenant.
73.
The Working Group is therefore of the opinion that Mr. Aden Cher’s arrest and
detention lacked a legal basis and are thus arbitrary under category I.
(b)
Category II
74.
The source claims that the prosecution of Mr. Aden Cher was motivated by his
opinions, which were critical of the state of governance in Djibouti. The source further argues
that the fact that Mr. Aden Cher was arrested and then placed in pretrial detention
immediately after expressing his views on social media indicates that he was arrested for
exercising his freedom of expression and his freedom to take part in the conduct of public
affairs.
75.
The Government replies that Mr. Aden Cher was arrested for embezzlement of public
funds, corruption, influence peddling and obstruction of the law, in violation of the Criminal
Code. It claims that an audit report incriminating Mr. Aden Cher was submitted to the public
prosecutor’s office on 1 March 2022, just two days before his arrest by the State.
76.
In the light of these contradictory versions, the Working Group recalls the manner in
which it approaches evidentiary issues. If the source has established a prima facie case for
breach of international law related to arbitrary detention, the burden of proof should be
understood to rest upon the Government, which must refute the allegations.16 In the present
case, the Government has challenged the prima facie credible allegations made by the source.
In these circumstances, it remains for the Working Group, on the totality of the
circumstances, to make an assessment as to whether the Government has discharged its
burden.
77.
Having examined the arguments of the source and those of the Government, the
Working Group is of the view that Mr. Aden Cher was placed in detention in reaction to his
criticism of the Government. In reaching this conclusion, the Working Group took into
account the comments from the source that Mr. Aden Cher’s arrest and subsequent detention
took place immediately after he had posted his political message on social media and given
a widely broadcast interview in which he criticized bad governance and denounced
corruption within the Government.
78.
The Working Group also took into consideration the fact that Mr. Aden Cher’s arrest
took place against a backdrop of criticism of the Government regarding a large number of
14 Human Rights Committee, general comment No. 35 (2014), paras. 37 and 38.
15 Opinion No. 15/2023, para. 114.
16 A/HRC/19/57, para. 68.
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arbitrary and illegal arrests, in particular targeting members of the political opposition, human
rights activists and independent journalists. These arrests are reportedly often made without
a legal arrest warrant, in violation of fundamental rights. Those detained in this way
reportedly face torture, ill-treatment and prolonged detention without charge or fair trial. The
source also reports the use of brutal methods of arrest, intimidation, physical surveillance and
wiretapping with the aim of silencing human rights defenders. In this regard, the Working
Group notes the concerns expressed by the Human Rights Committee about the shrinking of
civic space in Djibouti when it called for the cancellation of a presidential decree providing
for the dissolution of an opposition political party called Mouvement pour le renouveau
démocratique et le développement (Movement for Democratic Renewal and Development).17
The view of the Working Group that the Government did not, in all likelihood, arrest
Mr. Aden Cher on the basis of the findings of the audit report appears to be confirmed by the
fact that until recently, it continued to justify Mr. Aden Cher’s prolonged detention with
reference to the need to carry out further investigations. The Working Group is of the opinion
that the Government therefore used the audit report as a pretext and exploited the accusations
made against Mr. Aden Cher with the aim of preventing his participation in the conduct of
the country’s public affairs.18
79.
These facts lead the Working Group to conclude that the Government arrested
Mr. Aden Cher for exercising his freedom of expression and his freedom to take part in the
conduct of the public affairs of his country, in violation, respectively, of articles 19 and 25 (a)
of the Covenant and articles 19 and 21 (1) of the Universal Declaration of Human Rights.
There is no indication that Mr. Aden Cher was involved in making threats of violence or
other prohibited speech that might fall within the exceptions provided for in article 19 (3) of
the Covenant. Mr. Aden Cher’s detention therefore constitutes a violation under category II.
(c)
Category III
80.
The Working Group will now consider whether the deprivation of liberty of Mr. Aden
Cher was arbitrary under category III. Given its finding that his deprivation of liberty is
arbitrary under category II, the Working Group emphasizes that no trial should take place.
81.
The source contends that, despite his requests, Mr. Aden Cher was denied access to
legal assistance until the very end of his police custody, when he was finally able to speak
with his lawyer for a few minutes. The source claims that this delay in receiving access to
legal assistance prevented Mr. Aden Cher from communicating freely with his lawyer and
from having the necessary time to prepare his defence.
82.
The Government replies that Mr. Aden Cher was able to consult a lawyer while in
police custody. It does not respond to the argument that Mr. Aden Cher did not have access
to legal assistance immediately after his arrest and at his request, nor does it respond directly
to the argument that Mr. Aden Cher did not have the necessary time to consult his lawyer and
prepare his defence.
83.
Article 14 (3) (b) of the Covenant guarantees the right of 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. Principle 18 (3) of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
and rule 61 (1) of the United Nations Standard Minimum Rules for the Treatment of Prisoners
(the Nelson Mandela Rules) provide that defendants must have access to legal counsel
without delay. Furthermore, principle 9 and guideline 8 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 provide that persons deprived of their
liberty have the right to legal assistance by counsel of their choice at any time during their
detention, including immediately after apprehension, and must be promptly informed of this
right upon apprehension. Access to legal counsel should not be unlawfully or unreasonably
restricted.
17 Farah v. Djibouti (CCPR/C/130/D/3593/2019), para. 9.
18 Opinion No. 11/2022, para. 38; and No. 22/2024, paras. 69 and 80.
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13
84.
The Working Group considers legal representation to be an essential aspect of the
right to a fair trial. Legal assistance must be available at all stages of criminal proceedings,
namely before the trial, during the trial and on appeal, in order to ensure that the guarantees
of a fair trial are respected. Any denial of access to lawyers substantially compromises the
capacity of accused persons to defend themselves in any judicial proceedings.
85.
In the light of the above, the Working Group finds that Mr. Aden Cher was denied the
right to counsel immediately after his arrest, in violation of article 14 (3) (b) of the Covenant
and of his right to a fair trial under article 11 of the Universal Declaration of Human Rights.
86.
The source alleges that the State violated Mr. Aden Cher’s right to the presumption
of innocence by highlighting a public statement by the Prosecutor General immediately after
his arrest, and before he was brought before a judge, in which the Prosecutor General
portrayed Mr. Aden Cher as the instigator of a fraudulent scheme for embezzling public
funds. The source notes that at the time of this statement, Mr. Aden Cher was in police
custody and had not yet been formally charged. The source adds that it was stated in the press
release, which was issued in French and English to reach a wider audience, that the report
established that the Ministry had embezzled public funds and that the investigation had
confirmed the existence of collusion. According to the source, these claims are subject to the
exclusive jurisdiction of the trial judges.
87.
The Government argues that the case was brought before an investigating judge who
conducted the investigation both against and in favour of the defendant and with due regard
for the presumption of innocence. It also affirms that all the necessary steps for investigating
and prosecuting the offences have been taken.
88.
The Working Group recalls that article 14 (1) of the Covenant protects the right of all
persons to equality before the courts and a fair and public hearing by a competent,
independent and impartial tribunal. Article 11 of the Universal Declaration of Human Rights
and article 14 (2) of the Covenant protect the right to be presumed innocent. Having
considered the Government’s comments, the Working Group notes that the Government does
not respond directly to the allegation regarding the Prosecutor General’s public statement.
The Working Group therefore considers that a violation of the right be presumed innocent
has been demonstrated.
89.
On the basis of the foregoing, the Working Group concludes that the violations of the
right to a fair trial identified above are of such gravity as to give Mr. Aden Cher’s deprivation
of liberty an arbitrary character that falls within category III.
(d)
Category V
90.
The source argues that Mr. Aden Cher’s political views are central to the present case,
as they are the reason why he has been targeted by the State. The source points out that, after
initially being released under court supervision, Mr. Aden Cher was placed in pretrial
detention following the broadcast of an interview in which he denounced, among other
things, a political plot against him.
91.
The Working Group recalls that detention is arbitrary under category V when it
constitutes a violation of international law on the grounds of discrimination based on birth,
national, ethnic or social origin, religion, or political or other opinion, among other grounds.
It further notes that when detention results from the active exercise of civil and political
rights, there is a strong presumption that the detention also constitutes a violation of
international law on the grounds of discrimination based on political or other views.19
92.
Having taken note of the details of the case and considered the comments from the
source and the Government, the Working Group finds that Mr. Aden Cher was targeted
because of his political opinions, which were opposed to government policies. More
specifically, the Government has not rejected the source’s allegation that Mr. Aden Cher’s
detention is linked to his statements in which he criticizes the authorities and his role as an
outspoken public figure, as well as to the more general trend of repressing opposing views,
19 Opinion No. 27/2023, para. 110.
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which allegedly includes arbitrary and unlawful arrests of members of the political
opposition, human rights activists and independent journalists.
93.
The Working Group thus finds that Mr. Aden Cher has been deprived of his liberty
on discriminatory grounds based on his political opinions, which he expressed when seeking
to hold the authorities to account. His deprivation of liberty is thus in violation of articles 2, 7
and 19 of the Universal Declaration of Human Rights and articles 2 (1), 19 and 26 of the
Covenant, and is arbitrary under category V.
(e)
Concluding remarks
94.
The Working Group takes note of the source’s allegations that Mr. Aden Cher’s family
has been subjected to pressure in retaliation for his actions. A member of his family was
allegedly dismissed from his position at a high-level department of the Ministry of Foreign
Affairs and forced to leave the country. Another member of Mr. Aden Cher’s family
reportedly had his passport confiscated by the authorities and his accounts frozen, despite the
fact that this person is not implicated in the case against Mr. Aden Cher. The Working Group
recalls that family members should not face negative administrative and governmental
measures because of the actions of their relatives.
3.
Disposition
95.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Abdoulkarim Aden Cher, being in contravention
of articles 2, 3, 7, 9, 10, 11, 19 and 21 of the Universal Declaration of Human Rights
and articles 2, 9, 14, 19, 25 and 26 of the International Covenant on Civil and Political
Rights, is arbitrary and falls within categories I, II, III and V.
96.
The Working Group requests the Government of Djibouti to take the steps necessary
to remedy the situation of Mr. Aden Cher 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.
97.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Aden Cher immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law.
98.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Aden Cher and to take appropriate measures against those responsible for the violation
of his rights.
99.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
100.
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. Aden Cher has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Aden Cher;
(c)
Whether an investigation has been conducted into the violation of Mr. Aden
Cher’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 Djibouti with its international obligations in line with
the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
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15
101.
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.
102.
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.
103.
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.20
[Adopted on 14 November 2024]
20 Human Rights Council resolution 51/8, paras. 6 and 9.