Benali v Libya

Communication No. 1805/2008
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On 9 August 1995, B, a Libyan citizen, was arrested by the Libyan Internal Security Agency and held in secret detention at Abu Slim prison. In September 2000, B’s relatives were informed that B was alive and allowed to visit him in prison. During those visits, B told his relatives he had been regularly tortured and was never charged with a crime or brought before a judge. On 15 October 2002, B was released from prison. On 16 February 2005, after several months of renewed harassment from the Internal Security Agency, B went to the British embassy to request a visa to travel to the United Kingdom. He was thereafter arrested, transferred to Benghazi, and tortured for many days. B was secretly detained at the Al Abiar detention centre until 2006, when he was transferred again to Abu Slim, where he was abused and often held in solitary confinement. From May to September 2006, B’s relatives were allowed to visit him monthly. During those visits B relayed that he suffered grave abuses and had still not been charged with a crime. In October 2006, after a riot broke out at the prison, B was no longer allowed visits. On 23 March 2007, B disappeared from Abu Slim and his whereabouts were unknown until 26 April 2009 when one of B’s brothers was allowed to visit him at Abu Slim once more.

M, a brother of B living in the United Kingdom, brought this communication before the HRC without making any attempt to bring a claim domestically in Libya. He argued that Libya’s unacknowledged and incommunicado detention of B, and B’s subjection to acts of torture and prolonged confinement, in total disregard for established legal procedures and without provision for adequate domestic mechanisms for seeking redress from the State, violated Articles 2(3), 6(1), 7, 9(1)-(4), 10(1) and 16 of the ICCPR. The State failed to cooperate with the HRC and did not respond to requests for information concerning the admissibility or merits of M’s communication.

[Adapted from INTERIGHTS summary, with permission]

The complaint was admissible as the author provided enough evidence to sufficiently substantiate the claims and, given the State’s failure to respond, the Committee did not receive any evidence that would have precluded consideration under Article 5(2) of the Optional Protocol (the matter was not being examined by another international adjudicator and the individual exhausted all available domestic remedies).

The Committee held that:

(1) by causing B’s enforced disappearance and deprivation of his liberty, followed by refusals or failures to acknowledge that fact, the State had violated its duty to protect B’s life in violation of Article 6(1);

(2) the three periods in which the State held B in incommunicado detention violated Article 7;

(3) the anguish and distress caused by the disappearance of his brother violated Article 7 with respect to M;

(4) by twice arresting B and holding him in incommunicado detention without access to defence counsel, without informing him of the grounds for his arrest, and without bringing him before a judicial authority, the State had violated Article 9;

(5) by subjecting B to acts of torture and holding him in inhuman conditions during his detention, the State violated Articles 7 and 10(1);

(6) by intentionally removing B from the protection of law for prolonged periods of time and systematically impeding his and his relatives access to potentially effective remedies, the State deprived B of the protection of law in violation of Article 16;

(7) the State’s failure to provide B with an effective domestic remedy violated Article 2(3) read in conjunction with Articles 6(1), 7, 9, 10(1) and 16 vis-à-vis B, and Article 2(3) read in conjunction with Article 7, vis-à-vis M;

(8) pursuant to Article 2(3) the State was obligated to provide M with an effective remedy, including freeing B if still detained (or restoring his body to his family, if dead), conducting a thorough investigation into B’s treatment, prosecuting and punishing responsible parties, and providing B and M with appropriate compensation.

[Adapted from INTERIGHTS summary, with permission]

“5.3 With respect to the question of exhaustion of domestic remedies, the Committee reiterates its concern that, in spite of three reminders addressed to the State party, no information or observations on the admissibility or merits of the communication have been received from the State party. Given these circumstances, the Committee finds that it is not precluded from considering the communication under article 5, paragraph 2 (b), of the Optional Protocol.”

“6.2 The Committee notes the failure of the State party to provide any information regarding the author’s allegations, and reaffirms that the burden of proof cannot rest on the author of the communication alone, especially since the author and the State party do not always have equal access to the evidence and it is frequently the case that the State party alone has the relevant information.13 It is implicit in article 4, paragraph 2, of the Optional Protocol that the State party has the duty to investigate in good faith all allegations of violations of the Covenant made against it and its representatives and to furnish to the Committee the information available to it. In cases where the allegations are corroborated by credible evidence submitted by the author and where further clarification depends on information that is solely in the hands of the State party, the Committee may consider the author’s allegations substantiated in the absence of satisfactory evidence or explanations to the contrary presented by the State party. In the absence of any explanation from the State party in this respect, due weight must be given to the author’s allegations.”

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