Region: Africa
Year: 1991
Court: Human Right Committee
Tags: Arbitrary arrest, Denial of security of person, freedom of movement, right to own property
The author Angel Bahamonde is a citizen of Equitorial Guinea, he is a land owner, mining engineer and a former civil servant.
He fled his country of origin and now resides in Spain. The author claims that his passport was confiscated at the Airport of Malabo on the orders of President Obiang and was detained on the orders of Governor Bikoko. Some of his lands were confiscated and cacao plantations taken on the orders of the prime minister. His objections were ignored and the military was sent to destroy his crops. His requests for compensation were equally ignored.
He presented his complains personally to president Obiang detailing the damages he had suffered especially after the exploration where maize and soja crops worth more than 5 Million CFA francs were destroyed .Projects worth more than 835 Million CFA francs done by him for the government were used and he had not received any pay.
The author avers that domestic remedies are not available as President Obiang controls the judiciary.
The author states that since he has been opposed to the president views and also belong to a different clan with the president, he has been subjected to discrimination, harassment, intimidation and persecution. This has been done by the Prime Minister, deputy prime minister, Governor Bikoko and minister for external relations. The author further states that the Ambassador’s of Equatorial Guinea in Spain, France and Gabon have been given instructions to make his life difficult while he visits those countries.
The author states that he was arrested arbitral and he was never presented before any judicial officer and there was no indictment presented to him.
He further states that he has been prevented from travelling freely within his own country and also outside it.
The state party states that the author has never filed any case in the local courts and denies in general terms that the judiciary is controlled by President Obiang.
The state party lists a litany of laws that the author could invoke to file cases before local tribunals. It however does not relate the information it provides to the specific circumstance of the authors case.
The author challenges the assertion by the state party that the judicially is independent by establishing that all avenues for redress are blocked personably by President Obiang and that the judicially could not act independently since all judges and magistrates are all nominated by the president and that the Judge of the court of appeal is member of the presidents forces.
The author states that since leaving Equitorial Guinea , he has received numerous death threats and some security forces have been instructed to eliminate him if possible in Spain and that his properties in Equitorial Guinea have been destroyed or expropriated.
On admissibility, the Committee considered the state party’s averment that the author had not exhausted domestic remedies however under rule 91 of its rules of procedure and article 4, paragraph 2, of the Optional Protocol the state party is under an obligation to provide information to the committee detailing remedies available to victims of violation. The state party having failed to link its observation to the specific circumstances of the case and also bearing in mind that the author had provided cogent details the Committee was satisfied that he had met the requirements of article 5,paragraph 2 (b), of the Optional Protocol and thus admits the complaint.
In respect of allegation under articles 16; 17; 19; 20, paragraph 2; 25; and 27, the committee felt that they were not substantiated since he had failed to adduce evidence in support of the same.
The state party dismissed the authors allegations as unfounded and stated that the author suffered from persecution complex ("obsesionado por su manía persecutoria").
The state party had invited the committee to investigate the authors allegations in Equitorial Guinea ,however the committee notes that it acts on the basis on information received and that the state party is under an obligation under Article 4, paragraph 2, of the Optional Protocol to investigate all allegations against it and furnish the committee with written information at its disposal. The state party failed to do so and had not addressed itself to the authors claims and had only rejected them in general terms, the committee thus finds that the claims have been substantiated.
With regard to the author’s claims that he had been arrested arbitrary, the state party did dispute this but stated that he could availed himself for judicial remedies. The committee holds that the author was held arbitrary in violation of article 9 paragraph 1 and that the State party has failed to comply with its obligations under article 9, paragraph 3.
In respect of claims by the author that he had been subjected to threats intimidation and harassments by senior government officials, the committee finds that the state party dismissed the allegations in general terms. Article 9 paragraph 1 guarantees one right to liberty and security of person. This right can be invoked not only in the context of arrested and detained persons but that any interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render ineffective the guarantees of the Covenant. In that regard the state party failed to ensure the authors right to security of person.
The state party did not deny confiscating the authors passport thus denying him the right to move from his country freely, this, the committee held amounted to violation of article 12, paragraphs 1 and 2, of the Covenant.
The author had stated that he was unable to successfully petition the judiciary since it was controlled by the president a fact that that the state party refuted parading a litany of laws without linking them to a specific case. The committee is of the view that situation where the functions and competences of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent and impartial tribunal within the meaning of article 14, paragraph 1, of the Covenant.
The committee finds that the author has been discriminated because of his contrary views to the government and this contravenes Article 26 of the Covenant.
The human rights committee held that the case presented by the author it reveal violations of articles 9, paragraphs 1 and 3; 12, paragraphs 1 and 2; 14, paragraph 1; and 26 of the Covenant.
The state is obliged under Article 2 to provide Mr. Bahamonde with appropriate remedy, ensure his security and ensure that all properties seized from him are returned and that appropriate compensation is given to him and that the discrimination he has suffered be remedied without delay.
The committee also urges the state party to furnish the Committee within 90 days of receiving this communication with a report on all measures taken by it in respect of the committee’s views.