CASE OF N.S. NENOVA V. LIBYA

The Applicants/Authors were Bulgarian Medics who were working at Al-Fatah Paedriatic hospital in Benghazi. But for one of the Applicants, Kristyana Venelinova, who arrived in Libya in 1991 and was working at Hauari hospital, the rest arrived between 1998 and 1999 and were working at Al-Fatah hospital.  The medics were arrested on 9^th February 1999, tied, gagged, blindfolded and transported to a Tripoli police station. They were later charged with murder on suspicion of infecting 393 children with the HIV virus at Al Fatah hospital. On interrogation, they were tortured into confessing. They were subjected to electric shocks, beaten, suffocated, strangled, threatened with death, burned with cigarettes, deprived of sleep, raped among other things.

The Authors were formally charged four months after arrest, on 15^th May,1999 by the People’s Prosecution Office, with acts against Libyan sovereignty leading to indiscriminate killing for the purpose of subverting state security, conspiracy and collusion to commit the above premeditated crimes; deliberately causing an epidemic by injecting 393 children at Al-Fatah hospital with the HIV virus (a capital offence); premeditated murder with lethal substances, by injecting children with HIV (a capital offence); and acts contrary to Libyan law and traditions (illegal production of alcohol, consumption of alcohol in public places, illegal foreign currency dealings and illicit sexual relations).

The trial before the People’s Court was premised on their confessions and allegation that they were CIA and Mossad agents. Ten days after the trial began, the authors were allowed access to a lawyer and only then did they raise the issue of torture. The Court dismissed their complaint on torture. After the People’s Court suspended the trial for lack of sufficient evidence, the case was transferred to the Criminal Court. The Benghazi Appeals Court rejected evidence of two experts who testified that the infections at Al-Fatah hospital happened a year before the nurses joined the hospital and was caused by negligence and poor standards of hygiene. The Court instead appointed a second team of Libyan doctors who insisted that the infection was deliberate.

The Authors were sentenced to death on 6^th May, 2003 with the Court holding that it did not have jurisdiction over the Libyan officers who had been accused of torture, despite the security officers confessing to torturing some of the Authors. The Authors appealed to the Supreme Court, which in turn referred the case for re-trail. The Authors were found guilty and sentenced to death once again. On a second appeal to the Supreme Court, the Court after one sitting, upheld the death sentence but later commuted in to life imprisonment citing a compensation plan with the victims’ families.

After negotiations between Libya and other governments, the Authors were transferred to Bulgaria on 24^th July, 2007 to serve their sentences but were immediately pardoned and released on arrival.

The Authors submitted their complaint on violation of Articles 2; 6; 7; 9; 10, paragraph 1; 14 and 26 of the Covenant and for subjection to the death penalty after an arbitrary and unfair trial.

The Committee held that the Authors had sufficiently substantiated the allegations of violation under Articles 2; 7; 9; 10, paragraph 1; 14 and 26 of the Covenant.

The Committee held that the burden of proof could not rest upon the Authors alone given that the State party was placed in a superior position with regard to access to evidence.

The Committee further held that the treatment as alleged by the Authors amounted to torture and was a violation of Article 7 as read together with Article 2 paragraph 3 of the Covenant.

The State party was found to have violated Article 9 of the Covenant as the Authors only had charges preferred against them 3 months after the accident.

The Committee found the State party, Libya, responsible for the violations of the right to fair trial with regard to violation of the right not to testify against oneself, the violation of the principle of equality of arms, which was violated through the unequal access provided to evidence and expert opinions, and the defendants’ right to have adequate time and facilities for the preparation of their defence, through the lack of access to a lawyer prior to the beginning of the trial.

The Committee held the trials and convictions to be in violation of Article 14 of the Covenant.