CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS … for Said Al-Islam Gaddafi, the second son of the former Libyan President. After the regime change, Al-Islam Gaddafi was imprisoned without access to family or lawyer and without being told the charges against him. The Court firstly issued a provisional measure ordering Libya to prevent any irreparable harm and both physical and mental damage that could occur to Gaddafi in the course of investigation; the Court also insisted that Gaddafi must be allowed to see his family and choose a lawyer. In the judgement on the merits, the Court confirmed that the conduct of Libyan authorities infringed Gaddafi’s liberty and security of person; the arrest was arbitrary to the extent that the detainee was not told the charges against him. 55 Moreover, Gaddafi’s procedural rights as a suspect (article 7 of the African Charter) were violated as well. In proceeding no. 004/2013 56 the applicant published an article in the magazine L’Ouragan. The text accused public authorities of counterfeiting and money laundering. Consequently, the applicant was sentenced to twelve months imprisonment for defamation, he was ordered to pay a fine of approximately 3,000 USD, damages of approx. 9,000 USD and court costs of approx. 500 USD. The Court also suspended the publication of L’Ouragan for six months. The applicant claimed that his freedoms of expression and opinion had been restricted. Moreover, Burkina Faso ignored the special protection of the journalist profession based on the ECOWAS Treaty. The Court aligned with this opinion. It firstly issued a provisional measure ordering Burkina Faso to provide the applicant with medical care, but refused the applicant’s request for immediate release. The judgement on the merits criticized the draconic punishments and identified them as a violation of freedoms of expression and opinion and inadmissible restriction of the right to freely disseminate information because the punishments had not met the criteria of necessity and proportionality. The Court supported its judgement by references to several decisions of the European Court on Human Rights and Inter-American Court on Human Rights. Observations of the Human Rights Committee and Communications of African Commission on Human and Peoples’ Rights were quoted as well. It also allowed an NGO to participate in the proceeding as amicus curiae . When solving application no. 005/2013 57 the Court tackled several alleged human rights violations during a criminal proceeding. It decided that a delayed proceeding and information handling does not automatically impair the right to fair trial (art. 7 of the African Charter), dignity and humane treatment (art. 6 of the African Charter) or the right to information (art. 9 of the African Charter). Nevertheless, the applicant’s right to fair trial was still violated, because he was deprived of legal aid and legal representation. In spite of this finding the Court refused to release the applicant from prison. It ruled that this could be done only under specific and/or compelling circumstances, as outlined e.g. in the judgement Loayza-Tamayo v. Peru. 58 Case no. 006/2013 59 tackled the conditions of free legal aid in a criminal proceeding. The Court applied the conditions outlined earlier by the European and Inter-American Human Rights courts and concluded that the right to fair trial (article 7) was violated by depriving the applicant of this free aid.

55 Article 6 of the African Charter, Article 9 of the ICCPR. 56 Lohé Issa Konaté v. Republic of Burkina Faso [2013] ACHPR [2014] 004/2013.

57 Alex Thomas v. Republic of Tanzania [2013] ACHPR [2015] 005/2013. 58 Loayza-Tamayo v. Peru [1997] IACHR [1997] C/33, para 5 and 84. 59 Wilfred Onyango Nganyi and Others v. United Republic of Tanzania [2013] ACHPR [2016] 006/2013.

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