Aboufaied v. Libya
Refusal to Disclose Fate | Relatives as Victims | Effective Remedy | Burden of Proof | Deprivation of Liberty | Evidence | Judicial Protection | Juridical Personality
The Committee made a finding of inhuman treatment with respect to both of the victims, due to the fact that they had been kept in captivity for a prolonged period and prevented from communicating with their family and the outside world, as well as on account of the fact that one of them was subjected to torture. The Committee made a finding of inhuman treatment with respect to their brother as well, noting the anguish and distress caused by the victims' disappearance. It also found a violation of the victims' right to liberty and security, as they were arrested without a warrant, held in secret detention without access to defence, without being informed of the grounds for their arrest, and without being brought before a judicial authority. Finally, the Committee found that the victims' enforced disappearance and incommunicado detention, as well as the refusal to provide the family with any information concerning their whereabouts or condition, amounted to a failure to recognise them as persons before the law.
In their individual opinions, some members of the Committee disagreed with the finding of enforced disappearance, questioning whether the victims, in addition to being held in secret detention, were also placed outside the protection of the law. In particular, they stressed the need to distinguish unacknowledged detention from enforced disappearance by paying attention to the requisite temporal element of the latter, holding that secret detention amounts to a violation of the right to recognition as a person before the law only when victims are systematically and for a prolonged period of time deprived of any possibility to exercise their rights. Other individuals opinions also took issue with the Committee's decision not to address potential violations of the right to life in light of the fact the victims were released alive, holding that in cases of enforced disappearance the mere fact of even temporary incommunicado detention entails a risk to life for which the State is accountable.
June 19, 2012
Article 2(3) [ICCPR], Article 7 [ICCPR], Article 9 [ICCPR], Article 10(1) [ICCPR], Article 12(2) [ICCPR], Article 14(1) [ICCPR], Article 14(3) [ICCPR], Article 16 [ICCPR]
Articles not violated / not dealt with
Article 6 [ICCPR]
Facts of the Case
Mr. Idriss Aboufaied, founder of a political organisation opposing the Libyan government, returned to Libya from abroad in September 2006. He was met by members of various Libyan security agencies and subjected to interrogation. A few days later, members of the Internal Security Agency presented themselves at his home, and ordered Mr. Aboufaied to report to their Office. When he did so in November 2006, Mr. Aboufaied was arrested. He was released from his secret custody in December 2006. During his captivity, he was never brought before a judge, his family was not informed of his whereabouts or of the reasons for his arrest, as the authorities had refused to provide them with any information.
In February 2007, Mr. Aboufaied announced his intention to organize a peaceful public protest in Tripoli. The day before the planned protest, he was arrested by a group of armed men, identified as members of the Internal Security Agency, who broke into his house. He was held for two months in secret detention, reportedly at an Internal Security Agency detention centre. In April 2007, he was transferred to a prison, where he was kept in a basement for several months, allegedly tortured, and not allowed to receive family visits. He was later brought before a special tribunal to face several criminal charges. In June 2008, he was sentenced to 25 years imprisonment. He was finally released in October 2008.
On the same day of Mr. Aboufaied's arrest in February 2007, his brother, Mr. Juma Aboufaied, was also arrested at his home by State agents. He was last seen two days later, when he was brought back to the family home to collect his mobile phone and computer, which were confiscated. Since then, his family had not received any information on his whereabouts until May 2008, when he was released from his secret detention. At no point during his detention was he presented before a judicial authority, nor was he charged with an offence."