ICCPR Case Digest

CCPR/C/130/D/3593/2019

Communication

3593/2019

Submission: 2017.11.21

View Adopted: 2020.11.04

Farah v. Djibouti

Committee finds violations of freedom of expression, association and the right to take part in the conduct of public affairs in a case of dissolution of a political party

Substantive Issues
  • Freedom of association
  • Freedom of expression
  • Right to vote
Relevant Articles
  • Article 14
  • Article 19
  • Article 2
  • Article 22
  • Article 25
  • Article 3
  • Article 9

Facts

The author of the communication is a national of Djibouti who claimed that the State Party had violated his rights under articles 2, 3, 19, 22 and 25 of the Covenant, read in conjunction with articles 9 and 14.

The Party of Democratic Renewal was the main opposition party in Djibouti, however was declared illegal by authorities in November 1996. The author of the communication was elected as the President of the party in July 1997 and has been prosecuted for illegal administration of the political party, organization of illegal demonstrations and the dissemination of false news. In 2001, the party was restored to legality after the change of its name into “Movement for Democratic Renewal and Development” (Mouvement pour le renouveau démocratique et le développement), with the author still acting as President. Nevertheless, the persecution of the Mouvement continued. According to the author, he was arrested and imprisoned on numerous occasions in 2003, exiled to Belgium in 2004 and his party suffered arbitrary dissolution by a decree on the grounds that it had invited the Eritrean Head of State to invade Djibouti and thus undermined the country’s independence and territorial integrity.

In November 2008, Mouvement filed a petition for the nullification of the decree that was ruled inadmissible as it was submitted out of time. The authenticity of the document that was the reason for the dissolution of the party was therefore never examined. Mouvement appealed that it had not been notified of the decision to dissolve it or the date in which the decree had been published in the Official Gazette, yet the Supreme Court rejected the appeal. According to the judgement the decree was published in the 10 July 2008 edition of the newspaper La Nation, however, the author submits the decree was not published in its entirety and that the newspaper is not responsible for publishing laws and regulations. The author argued that the decree had been transmitted to the Ministry of the Interior to enable it to ensure that the Mouvement was dissolved, but was not transmitted to the political party itself.

On this basis, the author submitted that the dissolution of the Mouvement and the dismissal of the appeals lodged, which were not based on the examination of the merits of the case, amounted to violations of the right to freedom of expression pursuant to article 19 of the Covenant, the right to freedom of association pursuant to article 22 of the Covenant and the right to take part in the conduct of public affairs and to be elected pursuant to article 25 of the Covenant.

Admissibility

The Committee noted the distinction between the author as a natural person and the Mouvement as a legal person and underlined that the author has claimed to be “a victim of his individual rights under the Covenant as a direct consequence of his role in the Mouvement.” The Committee concluded that article 1 of the Optional Protocol is not an obstacle to the admissibility.

However, the Committee found the contention raised by the State party that the author has committed an abuse of rights within the meaning of article 3 of the Optional Protocol as inadmissible, as Djibouti has failed to demonstrate what “misinformation was submitted by the author”. Further, the Committee also found inadmissible the author’s claim under article 2 of the Optional Protocol regarding the violations under articles 9 and 14, as the nature of the submitted claims was hypothetical, all available domestic remedies were not exhausted and the author had merely cited the latter violations without substantiating them.

Nevertheless, the Committee did consider that the author had sufficiently substantiated their claim under articles 19 (freedom of expression), 22 (freedom of association) and 25 (the right to take part in the conduct of public affairs and to be elected) of the Covenant and thus found them admissible.

Merits

The Committee considered whether the dissolution of the political party constituted interference with the right to freedom of association under article 22 of the Covenant. It concluded that since political parties are a “form of association essential to proper functioning of democracy”, the dissolution of the Mouvement amounted to interference with the author's right to freedom of association.

The Committee further evaluated whether the “interference was warranted”, meaning if it was provided for in law, only imposed for one of the purposes set in article 22(2) and necessary in a democratic society for achieving one of these objectives. In this manner, Djibouti had to demonstrate that the prohibition of association was necessary to avert a real threat to national security, that less intrusive measures would be insufficient to achieve the same purpose and that the restriction was “proportionate to the interest to be protected”. The Committee noted that the decree stated that it will be published in the Official Gazette but was only partially published in the newspaper La Nation. The lack of such communication hampered the ability of the author to defend himself.

The Committee also noted Djibouti’s failure to respond to the author’s central claim and reiterated that Djibouti had “a duty to investigate in good faith all allegations of violations of the Covenant made”. The Committee therefore found that the national court’s consideration of whether the dissolution decree was effectively notified in full did not meet the requirements of a careful examination. The Committee also determined that Djibouti had failed to prove that Mouvement was dissolved to address a real threat to national security, therefore revealed a violation of article 22 of the Covenant. The Committee also considered that the right to freedom of expression pursuant to article 19 of the Covenant can be restricted only as provided for by law and must be necessary, as well as conform with the strict test of proportionality. The Committee concluded that sinasce the State party had failed to demonstrate the existence of a real threat to national security, the author is also a victim of the violation of article 19.

Finally, as the Committee had noted, the right to freedom of association includes the right to form and join organizations and associations concerned with political and public affairs, and “is an essential adjunct to the rights protected by article 25 of the Covenant”. The Committee observed that the author had been arrested and imprisoned several times due to his political activities as a member of the opposition party, including 23 times between 2013 and 2014. It concluded, in line with the previous  findings, that the author has been “deprived of the opportunity to participate in the conduct of public affairs” in violation of his rights under article 25 of the Covenant.

Recommendations

Pursuant to article 2(3) of the Covenant, the State party is under the obligation to provide authors with an effective remedy. This requires it to make full reparation to the individuals whose Covenant rights have been violated.

The State is required to take appropriate steps to:

  • Declare the presidential decree of 9 July 2008 null and void
  • Allow the author to pursue his political activities freely and to consider reregistering the political party
  • Allow the author to participate in the elections
  • Provide the author with adequate compensation and appropriate measures of satisfaction.

The State party is also under the obligation to prevent similar violations from occuring in the future and to provide a follow-up information about the measures taken to give effect to the Committee's Views by 8 October 2020.

 

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