A/HRC/WGAD/2012/62

General Assembly

9 August 2013

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary Detention at its sixty-fifth session, 14–23 November 2012

No. 62/2012 (Ethiopia)

Communication addressed to the Government on 27 July 2012

Concerning Eskinder Nega

The Government did not reply to the communication within the 60-day deadline. The State is a party to the International Covenant on Civil and Political Rights.

1. The Working Group on Arbitrary Detention was established in resolution 1991/42 of the former Commission on Human Rights, which extended and clarified the Working Group’s mandate in its resolution 1997/50. The Human Rights Council assumed that mandate in its decision 2006/102 and extended it for a three-year period in its resolution 15/18 of 30 September 2010. In accordance with its methods of work (A/HRC/16/47, annex, and Corr.1), the Working Group transmitted the above-mentioned communication to the Government.

2. 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 the detainee) (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 State parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (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 for reasons of discrimination based on birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; or disability or other status, and which aims towards or can result in ignoring the equality of human rights (category V).

Submissions

Communication from the source

3. Mr. Eskinder Nega is a prominent independent journalist and blogger in Addis Ababa.

Background of the petitioner and past periods spent in detention

4. Mr. Nega began his career in 1993 when he founded the Ethiopis newspaper, which was later closed by the Government. He is also founder of three publications which were also banned: the English weekly, Habesha, and Dehai. Mr. Nega has further frequently contributed to other publications as a columnist. These include the monthly magazine Change and the online new forum EthioMedia, both also banned in the country. Although Mr. Nega is well known for his political views and criticism of the Government, he is not affiliated to any political party.

5. Mr. Nega has been placed in detention for eight different periods over the last two decades. In 2005, Mr. Nega was arrested with his wife, Ms. Serkalem Fasil, in the context of the electoral process in Ethiopia. Both were charged with “outrages against the Constitution”, “impairment of the defensive power of the State”, and “attempted genocide”. Released on 9 April 2007, after approximately 17 months in detention, Mr. Nega’s and Ms. Fasil’s journalistic work continued to be subject to regular interference by the authorities. Their Sekalem Publishing Company was fined and dissolved in July 2007. In January 2009, the Government blocked Mr. Nega and Ms. Fasil from relaunching the publishing house. Nevertheless, Mr. Nega continued to write, primarily for online publications based outside Ethiopia.

6. Mr. Nega was again briefly detained on 11 February 2011 after having published an article online featuring the picture of a former general. He was accused of trying to incite an “Egyptian-like protest in Ethiopia” and he was also warned by the police about a possible conviction in the future.

7. Notwithstanding the warning he received and the police surveillance that followed, Mr. Nega continued to publish articles about the protests taking place in Egypt, Libya and Tunisia. While discussing the impact that such events could have on the political situation in Ethiopia, Mr. Nega repeatedly emphasized in his articles the importance of non-violence.

Pretrial detention and charges brought against Mr. Nega

8. On 14 September 2011, Mr. Nega was arrested by the federal police while driving in Addis Ababa to pick up his son from kindergarten. His writings, documents, 80 compact discs, some currency, car, laptop and mobile telephone were seized by the police. He was then transferred to the Maekelawi Federal Police Criminal Investigation Prison. Mr. Nega was not presented with an arrest warrant pursuant to article 19, paragraph 1, of Ethiopia’s Anti-Terrorism Proclamation No. 652/2009 (hereinafter the 2009 Anti-Terrorism Proclamation).

9. On 15 September 2011, he was remanded in police custody until 12 October 2011 to allow police additional time to investigate. Article 20, paragraph 5, of the 2009 Anti- Terrorism Proclamation requires pretrial detention for terrorism suspects. While in pretrial detention, Mr. Nega did not have access to legal counsel or members of his family.

10. On 10 November 2011, Mr. Nega along with 23 other individuals was charged before the Lideta Federal High Court with terrorism and treason. This was the first time since his arrest that Mr. Nega had access to legal counsel. In the Government’s charging sheet, Mr. Nega is accused of having violated articles 32(1)a, 38(1), 248(b), and 252(1)a of Ethiopia’s 2004 Criminal Code as well as articles 3, paragraphs 1-4, 4, 6 and 7, paragraph 2, of the 2009 Anti-Terrorism Proclamation.

11. In the source’s view not only are articles 4 and 6 of the 2009 Anti-Terrorism Proclamation excessively broad, but also the charges in this case are not supported by factual allegations contained in the Government’s charge sheet. The source declares that the only relevant part in the document which refers to factual allegations provides as follows:

Since 2003 E.C. [September 2010], at a time that is not known, by using as cover his constitutional right to freedom of expression, in order to put an end to the Constitution and the constitutional system through an organized terrorist act, [Mr. Nega] served as a local agent of the terrorist organization Ginbot 7; accepted terrorist mission; in collaboration with the terrorist organization organized in secret in the country, made terrorist plans, and coordinated the planned terrorism with members of the terrorist organization that are in the country and abroad; disseminated calls for terrorism and violence; disseminated mobilizing materials in different ways; collected information that he directly passed on to Ginbot 7 and indirectly to the enemy of the Eritrean Government and other terrorist organization; called meetings that had terrorist mission and took decisions on different terrorist actions (English translation of the Prosecutor’s Charging Document, Prosecutor’s File No. 00190/04, 10 November 2011).

12. On 24 January 2012, the third criminal bench of the Lideta Federal High Court confirmed the charges against Mr. Nega and scheduled the beginning of the trial for 5 March 2012. However, due to amended pleadings submitted by the Government lawyers, the trial proceedings did not recommence until 24 March 2012.

Trial proceedings

13. During the trial, both the prosecution and defence were given an opportunity to present evidence to the court. The prosecution submitted to the court a series of Mr. Nega’s writings and interviews as evidence of his guilt. During the proceedings, prosecutors showed video evidence that Mr. Nega had spoken at events sponsored by different opposition parties in Ethiopia.

14. Mr. Nega addressed the court and admitted to calling for peaceful protests in Ethiopia; however, he expressly denied advocating violence (English translation of his defence statement). Mr. Nega reiterated that “Ethiopia needs change in a peaceful democratic manner”. The defence also presented a 70-minute video recording of a meeting of the Unity for Democracy and Justice opposition party, which Mr. Nega was invited to address. The defence played the full video to show that the Government had selectively used clips of the video out of context during its presentation. In the video, Mr. Nega emphasized that any protests should be “peaceful and legal”. Mr. Nega also spoke of the video recorded opposition event in his statement to the court, saying that: “I was invited to write something. I accepted the invitation without hesitation, because I believe that it is my right to participate and get involved. As much as I could I wanted to encourage people to get involved and discuss in a peaceful manner the current situation of our country and get their views across” (English translation of Mr. Nega’s defence statement).

15. In April 2012, the court held a “trial within a trial” after prosecutors complained that local independent media coverage by the Fareh and Negradas newspapers portrayed the proceedings as politically motivated and the defendants as falsely accused. Prosecution requested the court to find that the coverage was unbalanced and order the papers to publish a correction. On 22 April 2012, the court convicted journalist, Mr. Temesgen Desalegn, of interfering with the proceedings and sentenced him to four months in prison or a fine of 2,000 birr (approximately equivalent to US$ 114).

Verdict and sentencing of Mr. Nega

16. Although a verdict in Mr. Nega’s case was expected on 11 May 2012, the court postponed its announcement twice. On 27 June 2012, the court found Mr. Nega and his co- defendants “guilty as charged”.

17. In presenting the verdict, Judge Endeshaw Adane accused Mr. Nega of abusing his right to freedom of expression and threatening national security: “Under the guise of freedom of speech and gathering, the suspects attempted to incite violence and overthrow the constitutional order.” Judge Adane accused Mr. Nega of writing “articles that incited the public to bring the North African and Arab uprisings to Ethiopia” and indicated that evidence against the defendants included speeches, articles, e-mails, phone calls and social media messages. He warned that “[f]reedom of speech can be limited when it is used to undermine security and not used for the public interest” and concluded that “[t]here is no way other than democratic elections to attain power in the country, and what [the defendants] said is clearly against the Constitution”.

18. In response to the verdict, Mr. Nega re-emphasized his innocence stating that: “I have struggled for peaceful democracy and I have never disrespected any individual and I did not commit a crime ... [m]y conscience is clear.” He insisted that: “You have to stand for justice, you have to allow us to say what we want ... you have no right to limit our freedom of speech.”

19. It is reported that, shortly after the proceedings closed, Mr. Nega was placed in solitary confinement until 29 June 2012. While in pretrial detention, Mr. Nega was allegedly beaten, forced to stand for hours upon end, deprived of sleep and had cold water poured over him. On 13 July 2012, the court sentenced Mr. Nega to 18 years of imprisonment.

Source’s contention regarding the arbitrary character of Mr. Nega’s detention as a result of his peaceful exercise of the right to freedom of expression

20. The source submits that Mr. Nega’s prosecution is a direct result of his legitimate work as an independent journalist and commentator. The source contends that his detention runs counter to article 19 of the International Covenant on Civil and Political Rights (ICCPR), article 19 of the Universal Declaration of Human Rights (UDHR) and article 29 of the Constitution of Ethiopia.

21. Article 19, paragraph 2, of the ICCPR specifically protects the work of journalists (see Human Rights Committee, communication No. 1334/2004, Mavlonov and Sa’di v. Uzbekistan (CCPR/C/95/D/1334/2004)) and “includes the right of individuals to criticize or openly and publicly evaluate their Governments without fear of interference or punishment”.1 The Human Rights Committee has also emphasized that freedom of expression and “a free and uncensored press” are of “paramount importance”2 in a democratic society (see the Committee’s general comment No. 25 (1996) on the right to participate in public affairs, voting rights and the right of equal access to public service, para. 25).

22. The source maintains that when the prosecution charged Mr. Nega under the Criminal Code and the 2009 Anti-Terrorism Proclamation, it acknowledged that the ultimate motivation behind the case against Mr. Nega was his writings which were critical of the Government. Prosecutors claimed that Mr. Nega had “use[d] as cover his constitutional right to freedom of expression”. The evidence submitted by the prosecution during the trial relied on Mr. Nega’s public writings and speeches, although none of them advocated the use of violence to prove his guilt. The court specifically identified Mr. Nega’s work as a journalist and accused him of attempting to incite an Arab Spring-like movement in Ethiopia. The source contends that the genuine character of the link between Mr. Nega’s ongoing detention and his peaceful exercise of the right to freedom of expression finds further support in the past history of intimidation by the authorities and several periods Mr. Nega had spent in detention (see paragraphs 4-12 above).

23. The source contests the broad interpretation by the Lideta Federal High Court of the limitations applicable to the exercise of the right to freedom of expression. The Court stated that “[f]reedom of speech can be limited when it is used to undermine security and not used for the public interest”. General comment No. 34 (2011) of the Human Rights Committee provides that “when a State party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself”. Any permissible restriction must be: (a) “provided by law”; (b) for the protection of one of the “enumerated purposes”; and (c) “necessary” to achieve that purpose.3 The source states that the limitation on Mr. Nega’s free expression was not for a proper purpose and was not necessary.

24. The source submits that in the case of Mr. Nega the prosecution did not “specify the precise nature of the threat”4 that the expression posed to the national security of Ethiopia. Also, “the legitimate objective of safeguarding and indeed strengthening national unity under difficult political circumstances cannot be achieved by attempting to muzzle advocacy of multi-party democracy, democratic tenets and human rights”.5 The source further maintains that the charges against Mr. Nega include the provisions of the 2009 Anti- Terrorism Proclamation which are exceedingly broad, namely when the law punishes anyone who “publishes or causes the publication of a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement” of terrorism (art. 6). The source also points out that the factual allegations brought up by the Government lacked any specific details about the exact nature of the threat.

25. Even if the Government could invoke the national security exception, the limitation on Mr. Nega’s freedom of expression was not necessary to achieve that purpose. According to the source, the Government failed to establish “direct and immediate connection between the expression and the threat” (general comment No. 34 (see paragraph 23 above), para. 35) and took measures against Mr. Nega not proportional to the value which the restriction serves to protect.

Source’s contention regarding the arbitrary character of Mr. Nega’s detention as a result of partial or total non-observance of his right to a fair trial

26. The source submits that the continued detention of Mr. Nega is also arbitrary as it results from grave breaches of the international norms relating to the right to a fair trial.

27. In particular, the source maintains that the Ethiopian authorities breached article 14, paragraph 1, of the ICCPR and article 20, paragraph 3, of the Constitution of Ethiopia, Mr. Nega’s right to be tried by an independent tribunal and his right to the presumption of innocence, by publicly expressing certainty about his guilt at the highest level. Reportedly, even before he was formally charged, authorities repeatedly and publicly accused Mr. Nega of terrorism in the days and weeks following his arrest. The Government’s spokesperson, Shimeles Kemal, claimed that “[t]he five men were involved in staging a series of terrorist acts that would likely wreak havoc”, and were connected to Ginbot 7. Similar statements followed from the Deputy Federal Police Commissioner, Demesash Woldemikael, in September 2011 and the Prime Minister when addressing the Ethiopian Parliament in October 2011. Moreover, Mr. Nega has not been allowed unimpeded access to a lawyer in alleged breach of article 14, paragraphs (b) and (d), of the ICCPR as well as article 21, paragraph 2, of the Constitution of Ethiopia. After his arrest on 14 September 2011, the Ethiopian authorities allegedly kept Mr. Nega without access to a lawyer until 10 November 2011. During two pretrial hearings that took place on 15 September 2011 and 28 days later, Mr. Nega did not benefit from any legal assistance. Finally, the source notes that for almost two months, Mr. Nega was deprived of any access to members of his family, in alleged contravention of principle 19 of the Body of Principles for the Protection of Persons under Any Form of Detention or Imprisonment (General Assembly resolution 43/173 of 9 December 1988).

28. Mr. Nega is currently held in detention in Kaliti Prison. He is expected to appeal against the court’s sentence dated 13 July 2012.

Response from the Government

29. The Government did not reply to the Working Group’s communication of 27 July 2012 within the 60-day deadline. In a letter of 5 October 2012, the Government requested an extension of the deadline, effectively outside the 60-day period for replying to the allegation, and therefore not granted.

30. The Working Group would like to point out that it has not yet, by 21 November 2012, received a response to the specific allegations made by the source.

31. In the absence of a response from the Government, the Working Group is able, based on its revised methods of work, to render an opinion in the light of the information submitted to it.

Discussion

32. In 2011 the Human Rights Committee in its concluding observations on Ethiopia addressed matters that are relevant to this opinion, including issues such as overly broad anti-terrorism offences and freedom of expression:

While the Committee appreciates the State party’s need to adopt measures to combat acts of terrorism, it regrets the unclear definition of certain offences in Proclamation 652/2009 and is concerned by the scope of some of its provisions, including the criminalization of encouragement of and inducement to terrorism through publication, which can lead to abuse against the media (arts. 2, 15 and 19).

The State party should ensure that its anti-terrorism legislation defines the nature of those acts with sufficient precision to enable individuals to regulate their conduct accordingly. The State party should ensure that its legislation is limited to crimes that deserve to attract the grave consequences associated with terrorism, and revise its legislation that imposes undue restrictions on the exercise of rights under the Covenant.

...

The Committee is concerned by provisions of the Proclamation on the Freedom of the Mass Media and Access to Information (No. 591/2008), in particular the registration requirements for newspapers, the severe penalties for criminal defamation, and the inappropriate application of this law in the combat against terrorism, as illustrated by the closure of many newspapers and legal charges brought against some journalists. The Committee is also concerned by reports received about the impossibility of accessing various foreign websites and radio stations (art. 19).

The State party should revise its legislation to ensure that any limitations on the rights to freedom of expression are in strict compliance with article 19, paragraph 3, of the Covenant, and in particular it should review the registration requirements for newspapers and ensure that media are free from harassment and intimidation.6

33. In the 2012 report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, concern is expressed that the rights of Mr. Nega and two other individuals under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment have been violated. The Special Rapporteur added the following:

The Special Rapporteur regrets that the Government of Ethiopia has not responded to this communication, thereby failing to cooperate with the mandate established by the Human Rights Council. The communication referred to the alleged ill-treatment of Mr. Eskinder Nega, the alleged torture of Mr. Woubshet Taye, and the lack of access to doctors of Ms. Reeyot Alemu while in detention. In this context, the Special Rapporteur recalls that article 12 of the Convention against Torture requires the competent authorities to undertake a prompt and impartial investigation wherever there are reasonable grounds to believe that torture has been committed, and article 7 requires State parties to prosecute suspected perpetrators of torture. In light of the fact that no evidence has been provided to the contrary, the Special Rapporteur is concerned that the rights of the aforementioned individuals under the UN Convention against Torture have been violated. The Special Rapporteur calls on the Government to investigate, prosecute and punish all cases of torture and ill-treatment and to ensure full redress to the victims.7

34. On 2 February 2012, five special rapporteurs, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Special Rapporteur on the situation of human rights defenders, the Special Rapporteur on the rights to freedom of peaceful assembly and of association, and the Special Rapporteur on the independence of judges and lawyers, expressed their dismay at the continuing abuse of anti-terrorism legislation to curb freedom of expression in Ethiopia.8 The Special Rapporteur on the situation of human rights defenders emphasized that “journalists, bloggers and others advocating for increased respect for human rights should not be subject to pressure for the mere fact that their views are not in alignment with those of the Government”. She expressed especial concern over “the case of Mr. Eskinder Nega, a blogger and human rights defender who may face the death penalty if convicted. Mr. Nega has been advocating for reform on the issue of the right to assemble peacefully in public”. 9

35. After the sentencing of Mr. Nega, the United Nations High Commissioner for Human Rights on 18 July 2012 stated her serious alarm over the current climate of intimidation against human rights defenders and journalists in Ethiopia, resulting from the use of “overly broad” laws on terrorism and civil society registration. She stated that:

“The recent sentencing of 20 Ethiopians, including prominent blogger Eskinder Nega, journalists and opposition figures, under the vague anti-terrorism law has brought into stark focus the precarious situation of journalists, human rights defenders and Government critics in the country.

The very harsh sentences handed down to journalists and other Government critics in recent months, coupled with excessive restrictions placed on human rights NGOs in the country have had the effect of stifling dissent and seriously undermining the freedom of opinion and expression in Ethiopia.

Laws to combat terrorism must be consistent with the Government’s human rights obligations under international conventions as well as the African Charter on Human and Peoples’ Rights and other regional instruments to which Ethiopia is party ... The overly broad definitions in the July 2009 anti-terrorism law of Ethiopia result in criminalizing the exercise of fundamental human rights,” she said, adding she was also concerned about difficult conditions in pre-trial detention and due process in the conduct of the various trials.10

36. Finally, the Working Group recalls that in 2012 the African Commission on Human and Peoples’ Rights adopted a resolution on Ethiopia, stating it was “[g]ravely alarmed by the arrests and prosecutions of journalists and political opposition members, charged with terrorism and other offences including treason, for exercising their peaceful and legitimate rights to freedom of expression and freedom of association”.11

37. On 13 July 2012, Mr. Nega was sentenced to 18 years of imprisonment for terrorism and treason offences. These provisions, and the use of national security in this context, are overly broad.

38. Overly broad criminal offences are the subject of analysis in opinion No. 54/2012 (Iran (Islamic Republic of)), opinion No. 48/2012 (Iran (Islamic Republic of)), and further in opinion No. 27/2012 (Viet Nam), paras. 35-39, where the Working Group’s case law is set out.

39. The Working Group subjects interventions against individuals who may qualify as human rights defenders to particularly intense review. See for instance opinion No. 21/2011 (Iran (Islamic Republic of)), opinion No. 54/2012 (Iran (Islamic Republic of)) and opinion No. 48/2012 (Iran, Islamic Republic of)). Mr. Nega’s role as a human rights defender and his own role in human rights work, as a publicist and blogger, require the Working Group to undertake this kind of intense review.

40. The source has provided convincing facts that the judgement is a consequence of Mr. Nega’s use of his right to freedom of expression and his activities as a human rights defender, which the Government has not rebutted. The application of the overly broad offences in the current case constitutes an unjustified restriction on the rights to freedom of expression and to a fair trial,12 and constitutes a deprivation of liberty that falls into category II of the categories applicable to the cases submitted to the Working Group and for which the remedy is immediate release.

41. The source has similarly established several breaches of Mr. Nega’s right to a fair trial. One of these breaches is the lack of legal representation in the pretrial period from 14 September to 10 November 2011 in contravention of article 14, paragraph 3 (b), of the ICCPR. These breaches constitute a deprivation of liberty that falls into category III of the categories applicable to the cases submitted to the Working Group.

42. Article 9, paragraph 5, of the ICCPR provides an enforceable right to compensation for anyone who has been the victim of unlawful arrest or detention. The Working Group has in its jurisprudence continued to develop, based on general principles, the right to a remedy, which primarily is a right to immediate release and to compensation. In this case, it is clear that Mr. Nega has a claim to compensation under article 9, paragraph 5, of the Covenant, which is an expression of general principles. The reasons that may be given for the detention of Mr. Nega cannot be used against a claim for compensation.

43. In conclusion, the Working Group recalls the critical findings, and its own opinions, on human rights violations occurring in Ethiopia by United Nations human rights bodies and the African Commission on Human and Peoples’ Rights.

44. The Working Group encourages the Government of Ethiopia to cooperate fully with the Working Group and respect the timelines related to cases being considered by it.

Disposition

45. In the light of the foregoing, the Working Group on Arbitrary Detention renders the following opinion:

The deprivation of liberty of Eskinder Nega is arbitrary in violation of articles 9, 10 and 19 of the Universal Declaration of Human Rights and articles 9, 14 and 19 of the International Covenant on Civil and Political Rights, and falls into categories II and III of the categories applicable to the cases submitted to the Working Group.

46. The Working Group requests the Government to take the necessary steps to remedy the situation, which include the immediate release of Mr. Nega and adequate reparation to him.

[Adopted on 21 November 2012]

 

Notes_____________________

1 Human Rights Committee, communication No. 1128/2002, Marques de Morais v. Angola (CCPR/C/83/D/1128/2002), para. 6.7.

2 Ibid., para. 6.8.

3 Human Rights Committee, communication No. 926/2000, Shin v. Republic of Korea (CCPR/C/80/D/926/2000), para. 7.2.

4 Communication No. 518/1992, Jong-Kyu Sohn v. Republic of Korea, para. 10.4 (Office of the United Nations High Commissioner for Human Rights (OHCHR),
Selected Decisions of the Human Rights Committee under the Optional Protocol (United Nations publication, Sales No. 04.XIV.9)).

5 Human Rights Committee, communication No. 458/1991, Mukong v. Cameroon, Views adopted on 21 July 1994, para. 9.7.

6 Concluding observations of the Human Rights Committee: Ethiopia (CCPR/C/ETH/CO/1 of 19 August 2011), paras. 15 and 24.

7 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez: observations on communications transmitted to Governments and replies received (A/HRC/19/61/Add.4), para. 53.

12 The Working Group has in its previous opinion No. 28/2009 (Ethiopia) found a violation of political free speech rights in a criminal case.