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A/HRC/WGAD/2024/67

Opinion No. 67/2024 concerning Abdoulkarim Aden Cher (Djibouti)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2024-11-15 · en UN

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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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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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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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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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.