Freedom of Association and Assembly / Protests, National Security, Political Expression
Vogt v. Germany
Closed Expands Expression
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The African Commission on Human and Peoples’ Rights (“ACmHPR” or the “Commission”) found that Sudan was responsible for the violation of Articles 6, 9, 10, 11, and 12 of the African Charter on Human and Peoples’ Rights (“the Charter”). The instant case concerned the human rights violations committed between 1998 and 2002 against Mr. Ghazi Suleiman, a human rights advocate based in Sudan. Mr. Ghazi Suleiman’s lectures, public speeches, and declarations promoted the protection of human rights within Sudan during the state of emergency declared by the government. In this regard, according to the National Security Act of 1994, security officials were empowered to detain, arrest, and harass civilians without any apparent legal justification. On 3 January 1999, Sudanese security officials prevented Mr. Ghazi Suleiman from delivering a public lecture in Sinnar, Blue Nile. From this point onwards, Mr. Ghazi Suleiman was arrested and harassed many times by security officials seeking to restrict his right to freedom of expression on the pretext of national security and public order. In this respect, the Commission held that political debate and the dissemination of information concerning human rights are crucial for individual and collective development in a democratic society. The Commission also ruled that by denying Mr. Ghazi Suleiman’s freedom of expression, the Respondent State infringed the public’s right to access valuable information on human rights issues affecting Sudan at the time of the events. Therefore, the Commission held Sudan responsible for infringing Mr. Ghazi Suleiman’s right to freedom of expression.
The Applicant is a law firm acting on behalf of the leading partner, Mr. Ghazi Suleiman, a human rights activist based in Khartoum, Sudan. Mr. Suleiman was harassed, persecuted, and arrested by Sudanese officials between January 1998 and May 2002 following declarations, public speeches, and interviews in which he disclosed the systematic human rights violations perpetrated by Sudanese officials. The human rights violations committed against Mr. Ghazi Suleiman occurred during a state of emergency declared by the Respondent State in response to a national coup and an armed conflict taking place in Sudan at the time of the events.
In 1994, the government of Sudan enacted the National Security Act, which allowed national security forces to pursue, harass, and arrest civilians without any apparent legal reason or evidence. The National Security Act also established that no decision issued according to this law could be challenged before a tribunal; thus, any human rights violations committed under the National Security Act were left unpunished. In addition, the inefficacy of national legal remedies was aggravated by the state of emergency declared by the Sudanese government, which hindered any possibility of redress and access to justice.
On 3 January 1999, Mr. Ghazi Suleiman tried to travel to Sinnar, Blue Nile State, to deliver a public lecture on human rights. However, before he could travel, security officials prevented his exit and threatened him with an imminent arrest if he persisted in delivering the lecture.
As per the Applicant’s submissions, Mr. Ghazi Suleiman was arrested and harassed by government officials every time he tried to advocate for the protection of human rights in his country. Following one of Mr. Ghazi Suleiman’s many detentions, his release from prison was made dependent on signing a statement agreeing to restrict his right to freedom of expression. The government provided no contrary evidence in refutation of these allegations.
Given the lack of suitable domestic remedies, the Applicant lodged a complaint before the Commission claiming that Sudan was responsible for the violation of Articles 9 (Right to Receive Information and Free Expression), 10 (Right to Freedom of Association), 11 (Right to Freedom of Assembly), and 12 (Right to Freedom of Movement) of The Charter. On 16 May 2002, the Commission declared the complaint admissible after having found that under the National Security Act, no decision could be challenged before a judge and that the state of emergency in Sudan hindered access to any available judicial remedy.
With regards to the right to freedom of expression enshrined in Article 9 of The Charter, the Applicant argued that Mr. Ghazi Suleiman’s arrests and constant harassment by government officials constituted a punishment for his declarations and public lectures on the human rights situation within Sudan, mainly the systematic violations being committed by government officials. These allegations were not contested by the Respondent State.
In this sense, the Commission confirmed that pursuant to the Declaration of Principles on Freedom of Expression in Africa, the right to freedom of expression holds fundamental importance “…as a means of ensuring respect for all human rights and freedoms.” [para. 40] Consequently, care must be taken to ensure that freedom of expression is not restricted to devoid the right of any legal effect. In a democratic society, promoting participation in political affairs is of paramount importance since denying such participation could hinder other human rights and prevent societies from being truly free.
Likewise, the Commission addressed the collective scope of the right to freedom of expression by establishing that “[i]t is particularly grave when information that others are being denied concerns the human rights protected in the African Charter as did each instance in which Mr. Ghazi Suleiman was arrested.” [para. 50] Therefore, by denying the Applicant’s right to express his opinion on the human rights issues in Sudan, the Sudanese community was also prevented from accessing valuable information. In this vein, the Commission referred to the Advisory Opinion OC-5/85 of November 13, 1985 issued by the Inter-American Court of Human Rights which establishes that “when an individual’s freedom of expression is unlawfully restricted, it is not only the right of that individual that is being violated, but also the right of all others to ‘receive’ information and ideas.” [para. 50] The Commission also recalled that the right to freedom of expression constitutes the corner stone upon which democratic societies are built. Consequently, the constant arrests, illegal detentions, and threats perpetrated against the victim as a means to restrict his freedom of expression amounted to a violation of Article 9 of the Charter. The Commission also held Sudan responsible for violating Article 6 of the Charter based on the arguments provided above.
Furthermore, the Commission took note of the Applicant’s allegations relating to Articles 10 and 11 of The Charter according to which Mr. Ghazi Suleiman’s rights to freedom of association and assembly were also compromised when the Respondent State prohibited his travel to Sinnar and threatened to arrest him if he proceeded to deliver any lecture or speech on human rights. In this respect, the Commission concurred with the Applicant’s submissions holding Sudan responsible for the violation of Articles 10 and 11 of the Charter.
As regards the Applicant’s right to freedom of movement, the Respondent State emphasized that Mr. Ghazi Suleiman attended a human rights conference in Milan and that state officials did not control freedom of movement within the Sudanese territory. Nonetheless, the Commission added that preventing the Applicant from traveling to Sinnar constituted an act of control over Mr. Ghazi Suleiman’s freedom of movement. In this sense, the Commission concluded that the right to freedom of movement is “…among the most important exercises of human rights and as such should be given substantial protection that does not allow the State to suspend these rights for frivolous reasons and in a manner that is thus disproportionate to the interference with the exercise of these fundamental human rights.” [para. 62] Hence, the Commission declared Sudan responsible for violating Article 12 of the Charter, as interference with such right could not be justified by the Respondent State.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded the right to freedom of expression by reaffirming the fundamental importance of freedom of expression in democratic societies. In this respect, the Commission held that the regulation of the right to freedom of expression must conform to the State’s obligations pursuant to the Charter; therefore, freedom of expression must not be restricted under pretenses that do not meet the minimum requirements set forth in the Charter and other relevant international legal instruments. In the instant case, the Commission was of the view that the facts before it disclosed a violation of Article 9 of the Charter since the Applicant was arrested, harassed, and detained as a means to prevent him from delivering speeches and lectures revealing the human rights violations being perpetrated by State officials in Sudan. The Commission also noted that prohibiting Mr. Ghazi Suleiman’s travel to Sinnar to deliver a public lecture on human rights amounted to a violation of his freedom of expression.
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