Mika Miha v. Equatorial Guinea

Communication No. 414/1990
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Mika Miha (M), having twice previously left Equatorial Guinea for asylum abroad, had returned in 1988 to support the activities of an opposition party to which he belonged. Shortly afterwards, he was arrested by members of the security forces. The only explanation given was that his detention had been ordered by the president.

For the first week, M was allegedly denied drink and food and then, having been tortured for two days, denied medical assistance for his injuries for over a month. He also alleged that the conditions of detention were deplorable, with detainees hardly receiving any food unless it was brought to them by relatives and having to sleep on the floor. During his detention, M underwent surgery for a serious infection and tumor allegedly linked to his previous ill-treatment. He contended that the trial against him was unfair but did not provide information about its date, venue or circumstance.

M was released in 1990 without any explanation and without all his personal belongings being returned. M complained about breached of Articles 7,9,10,12,14 and 19 of the International Covenant on Civil and Political Rights (“ICCPR”).

[Adapted from INTERIGHTS summary, with permission]

The Committee held that:

(1) the torture was a violation of Article 7 and the deprivation of drink and food and the denial of medical attention after his ill-treatment were cruel and inhuman treatment in violation of Articles 7 and 10(1);

(2) the absence of any explanation for M's arrest, the failure to bring him promptly before a judge, and the inability to seek a judicial determination of the lawfulness of his detention were violations of Articles 9(1),(2) & (4);

(3) there was no violation of Article 9(5) as M did not appear to have claimed compensation for unlawful arrest or detention; and

(4) the arrest and detention of M solely or primarily because of his membership in, and activities for, an opposition political party was a violation of Article 19(1) & (2).

The Committee rejected M's additional claims, holding that it was not possible to make any finding in respect of Article 9(3) as it remained unclear whether M was in fact detained on specific criminal charges and there was no indication that M had been deprived of his passport, been restricted in his freedom of movement or denied the right to leave the country and there was, therefore, no violation of Article 12. The Committee also found that the information provided was insufficient to substantiate any claim under Article 14.

[Adapted from INTERIGHTS summary, with permission]

"The author has claimed, and the State party has not refuted, that he was deprived of food and water for several days after his arrest on 16 August 1988, tortured during two days after his transfer to the prison of Bata, and left without medical assistance for several weeks thereafter. The author has given a detailed account of the treatment he was subjected to and submitted copies of medical reports that support his conclusion. On the basis of this information, the Committee concludes that he was subjected to torture at the prison of Bata, in violation of article 7; it further observes that the deprivation of food and water after 16 August 1988, as well as the denial of medical attention after the ill-treatment in the, or outside the, prison of Bata, amounts to cruel and inhuman treatment within the meaning of article 7, as well as to a violation of article 10, paragraph 1." Para. 6.4

"As to the author's allegation that he was arbitrarily arrested and detained between 16 August 1988 and 1 March 1990, the Committee notes that the State party has not contested this claim. It further notes that the author was not given any explanations for the reasons of his arrest and detention, except that the President of the Republic had ordered both, that he was not brought promptly before a judge or other officer authorized by law to exercise judicial power, and that he was unable to seek the judicial determination, without delay, of the lawfulness of his detention. On the basis of the information before it, the Committee finds a violation of article 9, paragraphs 1, 2 and 4." Para. 6.5

INTERIGHTS Comment: M's change of nationality was clearly irrelevant to the actual exercise of jurisdiction over him through his detention and Equatorial Guinea's assertion that the examination was an interference in its domestic affairs betrayed a misunderstanding of the obligation undertaken by accepting the OP. There was, however, no cooperation in the consideration of the communication's merits but the claim of torture was supported by medical reports regarding M's injuries. While most of the Committee's findings with respect to Art 9 are self-evident, its hesitation as regards Art 9(3) is surprising in view of the lack of cooperation, the apparent Presidential order for M's arrest and its own ruling that he was not brought promptly before a judge. Indeed the reference to the uncertain existence of charges in this finding seems more relevant to Art 9(1) but might also be regarded as inconsistent with the finding that M's arrest was ordered solely or primarily because of his political activities. As M was able to leave the country and there was no evidence of other restrictions as to his movements, there could be no finding that Art 12 was violated. Moreover while there were grounds for doubting the independence of the judiciary generally, that was not enough to sustain a claim that M's trial was unfair.
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