Zogo Andela v. Cameroon

CCPR/C/121/D/2764/2016
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The International Covenant on Civil and Political Rights (ICCPR) is a treaty by which its parties commit to preserving certain human and political rights. The First Optional Protocol of the Covenant allows for individuals to bring complaints, referred to as communications, against state parties to the Protocol that have allegedly violated articles of the ICCPR. The United Nations Human Rights Committee is the body that hears these complaints.

The author of the present communication was the son of Achille Benoit Zogo Andela, a national of Cameroon being held in the Kondengui Central Prison in Yaoundé at the time of the decision. The author alleged that Mr. Zogo Andela had been held in the prison since March 2011. Zogo Andela was accused of fraudulent withholding of property belonging to the state during his tenure as chairman and chief of executive of the Société camerounaise de leasing maritime (SCLM).

The case related to the failure to fulfill a lease-purchase contract between SCLM and the Autonomous Sinking Fund of Cameroon for 20 shrimp trawlers. The agreement, entered in 1996, broke down by 2002, and in 2003, the ships were repossessed by the Cameroonian government. In October 2008, the Autonomous Sinking Fund lodged a complaint against Zogo Andela for misappropriation of public funds and unlawful withholding of property. On 29 March 2011, he was arrested at his home in Douala by the Criminal Investigation Service.

From 2011 to the time of filing of the communication, Zogo Andela made appeals on various jurisdictional and procedural grounds, all of which were either dismissed or remained pending. The author Zogo Andela, had still not been tried for the charges levelled against him since he was first investigated in 2011. While in detention, Zogo Andela developed a number of ailments: heart disease, high blood pressure, diabetes and problems with his eyes and teeth. The author alleged that the seizure of Zogo Andela’s personal and professional property prevented him from acquiring paid legal services, as well as medical services.

The author alleged violation of articles 2(3); 7; 9(1), (3), (4) and (5); 11; 14 (1), (2), (3) (c) and (5); 15 (1); 16; and 26 of the ICCPR. Several of the claims were held to be inadmissible because the present case did not fall within the ambit of the articles in question. Key claims included those that arose under Article 9, prohibiting “arbitrary arrest or detention,” Article 7, prohibiting “cruel, inhuman or degrading treatment or punishment,” and Article 14, mandating the rights to fair trial and due process.

 

The Committee held that:

  1. The author’s claims based on article 9 (5), which sought redress for arbitrary detention, and article 7, alleging unhealthy living conditions due to his detention, were inadmissible because the author had not alleged these violations in Cameroonian courts and had not exhausted all domestic remedies.
  2. The author’s claims under article 14 (1) alleging failure to provide a fair trial and presumption of innocence were inadmissible because his claims relate to the application of domestic law, and the Committee held that it generally defers to domestic courts on questions of the application of domestic legislation.
  3. The state party violated article 9 (1), (3), and (4) in its failure to conduct periodic reexamination of the necessity for pretrial detention, its failure provide Mr. Zogo Andela with either a trial within a reasonable time or release, and its failure to justify continued detention on substantive grounds.
  4. The state party violated article 14 (3) (c), establishing the right “to be tried without undue delay,” in its failure to provide justification for the delay between the indictment of Zogo Andela in March 2011 and the first hearing in October 2016, noting especially that Zogo Andela had been in pretrial detention for the entire period.

The Committee ordered Cameroon to provide the author with an effective remedy, requiring the immediate release of Mr. Zogo Andela pending his trial, to bring Mr. Zogo Andela to trial without delay, and to provide appropriate compensation for the violations suffered.

 

The Committee recalls that, in accordance with Article 9 of the Covenant, no one may be subjected to arbitrary arrest or detention. The Committee further recalls that after an initial determination has been made that pretrial detention is necessary, there should be periodic re-examination of whether it continues to be reasonable and necessary in the light of possible alternatives. Article 9 (3) provides that “Anyone arrested or detained on a criminal charge ... shall be entitled to trial within a reasonable time or to release”. The Committee notes that since being indicted, Mr. Zogo Andela has been in pretrial detention since 30 March 2011. It further notes that the courts of the State party have justified keeping him in detention on purely procedural grounds, as the case has been transferred to the Special Criminal Court, without a substantive examination of his detention being carried out. The Committee notes that no review of the lawfulness of the detention has been performed. That being the case, and considering that the State party has not advanced any grounds that would justify Mr. Zogo Andela’s continued detention, the Committee finds a violation of article 9 (1), (3) and (4).     (Section 7.2)

The Committee recalls that, under Article 14 (3) (c), everyone has the right “to be tried without undue delay”.  The Committee further recalls that Mr. Zogo Andela was arrested on 29 March 2011; that he was brought before the government procurator of the Mfoundi high court on 30 March 2011; that he was charged, the same day, with the offences of misappropriation of public funds and unlawful withholding of property and that he was thus remanded in custody. The State party argued that the examining magistrate had been engaged in numerous investigative procedures between April 2011 and September 2012 and that the case had then been transferred under a committal order to the Special Criminal Court. The material before the Committee also shows that a first hearing was held before the Special Criminal Court on 12 October 2016 (para. 2.25). The Committee has taken note of the State party’s information on the charges brought against Mr. Zogo Andela, the complexity of the case and the procedural requirements under the Criminal Procedure Code. However, the State party did not provide any specific grounds to justify the long delay between the indictment of Mr. Zogo Andela on 30 March 2011 and the first hearing on 12 October 2016. Moreover, the State party did not provide the Committee with any information on the subsequent progress of the trial after that first hearing. The Committee is of the view that such a delay was all the more serious in that Mr. Zogo Andela has been in pretrial detention continuously since his arrest in 2011.    (Section 7.4)

In connection with Article 7 of the Covenant, the Committee notes, first, the author’s allegations concerning the living conditions of Mr. Zogo Andela, which are due to his detention, and the freezing of his assets, which results from the judicial proceedings in his case. The author has also drawn attention to the worrying health condition of Mr. Zogo Andela and the refusal of the prison authorities to provide him with care and a diet suitable for his state of health. The Committee observes that, according to the evidence contained in the file, the author has not brought these allegations before the domestic courts. Moreover, he has not sufficiently substantiated this claim before the Committee, apart from the production of a medical certificate dated 26 August 2016, which describes Mr. Zogo Andela’s medical history.  The Committee therefore considers that this part of the communication, too, should be declared inadmissible under Articles 2 and 5 (2) (b) of the Optional Protocol.   (Section 6.9)

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