Difference between revisions of "Eritrea"
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===Fair Trial Rights===
===Fair Trial Rights===
Revision as of 10:39, 8 March 2018
The State of Eritrea, located in East Africa, has a long history of struggling for independence as a state separate from Ethiopia. Historically colonized by Italy, Eritrea found itself growing more and more distinct from the state of Ethiopia, which managed to retain its independence during colonial times. In 1975, Eritrea officially fought for its independence from Ethiopia. The War of Independence ended in 1992, however, tensions remained high between Ethiopia and Eritrea. In 1998, Eritrea attempted to annex a town lying next to Ethiopia’s border.
In 2003, Eritrea came under the scrutiny of the United Nations for violating international law, because of its attempt to annex the aforementioned town. These events have set the stage for Eritrea’s state creation and legal system in light of the preamble of Eritrea’s Constitution which states, “We the people of Eritrea, united in a common struggle for our rights and common destiny...”
Type of System
The State of Eritrea claims itself to be a democratic system to ensure the rights and representation of all its people. The constitution is implemented to ensure the recognition and preservation of the people’s sovereignty.
Eritrea is a unitary State that includes units of local government. Article 5 of the Constitution of the State of Eritrea states, “The amount of power that can be exercised in these units is outlined by law.” The People’s Front for Democracy and Justice is the ruling political party.
Eritrea’s judicial system is a civil law system “which was borrowed from the Ethiopian adaptation of the Napoleonic Code. The court system consists of courts of first instance, courts of appeals, composed of 5 judges, and military courts...”
Eritrea has a civil, special and military court. The civil court is composed of the Community Court, the Zoba Court, and the High Court. Established in 2001, the Community Court is the only court out of the three whose magistrates do not need prior legal education because they base their decisions and legal findings on the cultures and expectations of their regions. The Zoba Court could also be referred to as the court of first instance, with civil and criminal benches, and Shari’a benches. The High Court is an appeals court, with civil, criminal, commercial, and Shari’a benches.
Although a Supreme Court is written into the constitution, there is yet to be a creation of the Supreme Court. The matters of the Supreme court generally fall within the High Court’s jurisdiction. There is no recent information readily available with regard to legal aid in Eritrea but when Eritrea entered into its new judicial system, there was an acute lack of qualified lawyers.
Sources of Defendants’ Rights
The Penal Code of the State of Eritrea 2015
The Constitution of the State of Eritrea 1997
The Criminal Procedure Code of the State of Eritrea 2015
‘In as far as Eritrea has ratified the Optional Protocols for UN Human Rights Conventions or has accepted the Competence of the corresponding UN Treaty Bodies (compare list on the right), the inhabitants of Eritrea and their representatives are able to invoke their human rights through these bodies. All inhabitants of Eritrea may turn to the UN Human Rights Committee through procedure 1503, to the Special Rapporteurs for violations of specific human rights or to ECOSOC for women's rights violations.
Since Eritrea is a member state of UNESCO, its citizens may use the UNESCO procedure for human rights violations in UNESCO's fields of mandate. Employers' or workers' and certain other organizations (not individuals) of Eritrea may file complaints through the ILO procedure in the cases of those conventions which Eritrea has ratified.Since Eritrea is an AU member, its citizens and NGOs may file complaints to the African Commission on Human and Peoples’ Rights.
They may also file complaints according to the EU guidelines (on Human Rights Defenders, Death Penalty and Torture) to Embassies of EU Member States and the Delegations of the European Commission.In cases of human rights violations by multinational enterprises, they may also invoke the National Contact Point in an OECD member state. Eritrea has not yet joined the International Criminal Court.’
Rights of the Accused
Penal Code of the State of Eritrea (PC)Article 7.1 states “No person shall be found guilty for conduct that, at the time of the conduct, was not prohibited by law. Courts may not impose penalties or measures other than those prescribed by law. Nor may a punishment not prescribed at the time of the commission of the offence be imposed”.
PCE Article 7.2 states “Courts may not create offences by analogy. However, nothing in this Article shall prevent interpretation of the law. In cases of doubt, Courts shall interpret the law according to its spirit and purpose, in accordance with the meaning intended by the legislature”
Article 7 of the PC states, “No person shall be tried for an offence if he has previously been finally acquitted of the same offence, and no person shall be tried of or punished for an offence if he has previously been finally convicted of and punished for the same offence.”
Right to Counsel
Article 33 of the Criminal Procedure Code of the State of Eritrea 2015 (CPC) states, “A police officer shall forthwith inform the person arrested, in a language he understands, of the offence for which he is being arrested and shall also inform him of his right to be brought before a Court within 48 hours and of his right to counsel.”
Right to Silence
Article 53 of the CPC states, “If the suspect asserts his right to silence or to consult with an attorney, the questioning must cease until his requests are complied with.”
Right to Habeas Corpus
Article 191 of CPC states, “Every person arrested or detained prior to trial shall have the right to petition any court for his release on the grounds that his arrest or detention is without due process in violation of the laws and Constitution of Eritrea. Such petition may be filed by the arrested person, his counsel, a relative or any other interested person acting on behalf of the arrested person”.
Fair and Speedy Hearing
Article 29 of CPC states, “Every person charged with an offence shall be entitled to a fair, speedy and public hearing by a court of law; provided, however, that such a court may exclude the press and the public from all or any part of the trial for reasons of morals or national security, as may be necessary in a just and democratic society.
Protection from Unnecessary Forms of Force, Coercion, or Persuasion, or Torture
Article 53 of the Criminal Procedure Code states, “No police office or other person in authority shall offer, use, or cause to be offered or used any force, inducement, threat, promise, or any other improper method to any person examined by the police.”
Presumption of innocence
Article 33 of the CPC states, “A person charged with an offence shall be presumed to be innocent, and shall not be punished, unless he is found guilty by a court of law.”
Right to Privacy
Article...of the Constitution of the State of Eritrea states, “Every person shall have the right to privacy.”
Also: “No person shall be subject to body search, nor shall his premises be entered into or searched or his communications, correspondence, or other property be interfered with, without reasonable cause.”
Also: “No search warrant shall issue, save upon probable cause, supported by oath, and particularly describing the place to be searched, and the persons or things to be seized.”
Prohibition of Unauthorized Trial and Punishment
Article 11 of the CPC states, “No person accused of any offence punishable by criminal law shall be tried by any person or institution other than Courts constituted by law and no person or institution other than Courts constituted by law may, for any offence committed in violation of penal law, impose the penalties described in the Penal Code of Eritrea.”
Arrest and Detention
Article 7 of the CPC:
No person may be arrested outside of the law. No person can be convicted for an act that that is not defined as a crime at the time of being committed. Every person who is arrested and detained must be informed of the reasons for his arrest as well as the rights he has during the time or arrest or detention. This must be given to him in the language he comprehends.
Article 33 of the CPC:
Any person held in detention must be brought before a court if law within forty-eight hours. He cannot be held in custody beyond this time frame. Every person has the right to petition for a Writ of Habeas Corpus. Every person charged with an offense must be given a fair, speedy, and public hearing, unless for moral reasons or national security. During an arrest, the police officer or the other executingofficer arrest but touch or confine body of the person, unless submission to his custody is expressed through word or action.
The police officer arresting a person shall make an effort to contact a relative of the arrested person, without delay.
Article 29 of the CPC:
Arrest with a warrant is preferred.
Article 80 of the CPC:
No person with pending trial should be detained in the same cell with convicted persons. Detainees must be kept with their respective sex.
Article 85 of the CPC:
Detainees, at authorized intervals, may speak with relatives.
Extent of pre-trial detention
According to Article 69(1) of the CPC, “the Court shall, where the arrested person has been charged with a Petty Offence, order his release upon his own undertaking, without conditions, unless the prosecutor shows that the arrested person should be detained or released only upon conditions.” If the person had committed a serious offence or falls into any of the categories mentioned in Article 69(2) of the CPC, such person’s release can only occur ‘…upon conditions, or be detained in custody pending trial, unless the arrested person shows that the conditions or his detention in custody is not justified pursuant to the principles of Article 108.’
Enforcing the rules- procedures to protect against illegal police procedures
Article 25 of the CPC speaks to the recusal of prosecutors, other officials and police officers.According to Article 25(1), apoliceofficer involved in an investigation, prosecution, trial or appeal of a case shall recuse himself fromparticipation in any proceedings in which: (a) he has a personal interest;(b) he is a relative of any person involved;(c) he has had prior substantial involvement inthe case; or(d) for any other reason his impartiality in theproceeding might reasonably be called intoquestion. Should a police officer decide not to recuse himself in accordance with this Article, any person entitled to apply for recusal of such police officer may ask the Police Commissioner to decide the issue and the Police Commissioner shall as soon as possible decide the issue and in doing so shall give reasons for the decision. Copy of the decision and the reasons therefor shall be sent to the Office of the Attorney General. [Article 25(6) of CPC].
Before being charged in Court Article 54(1)-(6) of the CPC deals with interrogation before a person is removed from police custody. The main crux of these subsections speak to the rights that the suspected person has when he/she is in police custody and the steps that police need to take to ensure that the suspect understands the procedures and questions and is not pressured into speaking when he/she does not wish do (the well-known‘right to remain silent’rule applies)
Protection against illegal means of interrogation
Article 54(1) of the CPC states that the offender has the right not to answer any questions, he/she may consult a lawyer if he/she wishes to and whatever he/she says may be used as evidence against them and the police should inform the offender accordingly. Article 54(3) states that ‘No inducements, threats, promises, coercion or compulsion of any kind shall be used in taking a statement from a suspect.’
Article 2 of CPC:
A speedy and just process of investigation, prosecution, and trial is necessary, in accord with all statements in the law.
Article 7 of the CPC:
An interpreter is necessary at any stage of the investigation where the accused needs assistance.
Article 53 of the CPC:
The witness shall answer truthfully to all questions put to him but may refuse to answer any question. No police officer or other person in authority shall offer, use, or cause to be offered or used any force, inducement, threat, promise or any other improper method to any person examined by the police.
Any person under investigation as an offender who is questioned by the police in regards to the investigation shall, before any questioning takes place, be cautioned that he has the right not to answer any question put to him, that any statement that he may make may be used in evidence against him and that if he wishes he may consult with a lawyer.
If the suspect asserts his right to silence or to consult with an attorney, the questioning must cease until his requests are complied with.
Fair Trial Rights
Freedom from prolonged pre-trial detention
According to Article 80(7) of the CPC, ‘The Court may, in its discretion and in view of the continuance of reason for which it had ordered the detention of the person, decide that the person be released after such time as the Court shall decide, but not longer than thirty (30) days from the date of the order of the Court…’. Though this provision is made according to the Human Right Commission, Eritrea conducts excessively long pre-trial detentions.
Freedom from punishment
According to Article 16(1) of the CPC, subject to certain requirements listed under the Article ‘no person shall be tried of or punished for an offence if he has previously been finally convicted of and punished for the same offence’. According to Article 131(3) of the CPC, ‘A witness who is the mother, father, brother, sisteror spouse of the accused shall not be punished forrefusing to testify or produce evidence.’
Right to counsel
The prelude to the CPC mentions that selected persons, suspected or accused of a crime,shall always be assisted by counsel while Article 26 states that ‘An accused may be represented by duly qualified counsel at any stage of a criminal proceeding, including investigation.’
Right to habeas corpus
Book V - Habeas Corpus and Extraordinary Review of the CPC covers the right to habeas corpus with Article 191 specifically stating ‘Every person arrested or detained prior to trial shall have the right to petition any court for his release on the grounds that his arrest or detention is without due process in violation of the laws and Constitution of Eritrea. Such petition may be filed by the arrested person, his counsel, a relative or any other interested person acting on behalf of the arrested person.’
Right to medical care
The CPC does not speak to the right to medical care and the Constitution of Eritrea itself does not state healthcare or access to medical treatment to be a right allocated to the citizens.
Right to a fair trial
The preamble to the CPC mentions that accusers and wrongdoersare not estranged to the inevitability of the existence and practice of fair opportunitiesuntil such time when judgment is made.
Right to notice of charges
According to Article 87(3) of the CPC, ‘At the time when charges are filed, the prosecutorshall serve upon the accused and his counsel a copyof each charge against him and no fee shall beimposed upon the defense for such copy or copies.
Right to non self-incrimination
According to Article 131 of the CPC ‘No witness may refuse to answer a question that is put to him on the ground that the answer might tend to incriminate him, but any answer that he gives may not be used directly or indirectly against him in any other criminal or civil proceedings.
Right to a speedy trial
The prelude to, the preamble and Article 2 of the CPC speaks to the idea of a speedy and just trial, prosecution and investigation.
Right to a trial by jury
There is no jury system in Eritrea Criminal Law as the CPC make no reference to the term/concept.
Right to impartial judge
According to Article 12(1)(a)-(d) ‘Upon motion by any party involved in the case, or upon his own motion, any judge scheduled to hear matters at the pre-trial, trial or appeal stages of a case shall recuse himself from participation in any proceedings in which(a) he has a personal interest; (b) he is a relative of any person involved; (c) he has had prior substantial involvement in the case; or (d) for any other reason his impartiality in the proceeding might reasonably be called into question.
Right to appeal
According to Article 16(2) of the CPC, ‘The accused or the prosecutor may take an immediate appeal from an order limiting, or refusing to limit, access to Court proceedings’.
Article 138 of the CPC:
No party shall be required to prove undisputed facts of common knowledge and the Court shall take judicial notice of the existence of such fact. Question put in direct examination shall only relate to facts that are relevant to the issues to be decided and to such facts of which the witness has personal knowledge and no leading questions may be put into a witness in a direct examination without permission of the court. Questions put in cross-examination shall only relate to relevant issues before the Court, including what might be erroneous, doubtful or untrue in the answers given in direct examination and leading questions may be put to a witness in cross-examination.
Article 142 of the CPC:
Failure to cross-examine on a particular point does not constitute an admission of the truth of any fact asserted by a witness for the opposite party.
Article 144 of the CPC:
At the conclusion of the prosecution evidence, the Court shall order the acquittal of the accused on any charge if it determines that the prosecution has not produced sufficient evidence against the accused on that charge that would warrant a finding of guilty.
The failure of the accused to testify in his own behalf may not be used as evidence against him in any way or for any purpose. The accused shall be treated in the same manner as any other witness.
An accused who testifies on his own behalf may be cross-examined about any previous conviction if in his testimony he claims to be of good character, but any evidence of aprevious conviction that is admissible under this sub-article shall be considered relevant only to the credibility of the accused as a witness.
Ways to protect rights
Exclusionary Rule or Nullity of Procedure
According to Article 133(2) of the CPC, ‘No evidence shall be admitted in any criminal prosecution if the Court is satisfied that such evidence was obtained in violation of the Constitution of Eritrea or the provisions of this Code.
According to Article113(6), ‘If the victims of the crime prefer tofile a separatecivil action against the accused, the bond entered in accordance withsub-Articles (2) – (5) shall be dismissed forthwith’
According to Article 27(3) of the CPC, ‘When it appears to the Court at any time, by motion of the defendant or otherwise, that the conditions described in sub-Article (1) exist, the Court shall appoint counsel.’
Article 175 of the CPC:
A first appeal may be made as of right from decisions of:
A community court to the Regional Court in whose territorial jurisdiction such Community Court lies; A Regional Court to the High Court; or The High Court to the Supreme Court.
The accused or the prosecutor may appeal and if the appellate Court confirms the judgement of the lower Court the decision shall be final as to the appellant.
Where the first appellate Court reverses the judgement of the lower Court the respondent on the first appeal may appeal further to the Court of the next level and the decision of the second appellate Court shall be final as to both parties.
Article 176 of the CPC:
In case of disagreement among the judges hearing an appeal, the decision of the majority of the judges shall be the decision of the Court.
Where the appellant is in custody, the superintendent of the prison in which he is confined shall deliver the notice and memorandum of appeal without delay to the Court again whose decision appeal is made.
Within thirty days of the filing of a memorandum of appeal, the respondent shall have the right to file a memorandum in reply and any such memorandum shall be served upon the appellant at the time of filing.
Where a convicted person has given notice of appeal, no sentence or other order of the trial court shall be executed until the outcome of the appeal has been finally determined. \
Article 184 of the CPC:
Within fifteen days of receipt of the memorandum of appeal and reply, or the date for the reply to be filed, the trial Court shall forward the case on appeal to the appellate Court
Article 188 of the CPC:
The court of appeal may admit and consider fresh evidence or compel the submission thereof.
Article 191 of the CPC:
Every person arrested or detained prior to trial shall have the right to petition any court for his release on the grounds that his arrest or detention is without due process in violation of the laws and Constitution of Eritrea. Such petition may be filed by the arrested person, his counsel, a relative or any other interested person acting on behalf of the arrested person.
Rights in prison
Conditions of confinement
Courts have the power and duty to investigate the conditions in prison according to Article 9(5) of the CPC but despite this, ‘prisoners are held in vastly overcrowded cells, underground dungeons, or shipping containers, with no space to lie down, little or no light, oppressive heat or cold, and vermin. Food, water, and sanitation are inadequate.Beatings and other physical abuse in detention have frequently been reported, sometimes resulting in deaths. The commission of inquiry concluded that the prevalence of torture is a “clear indicator of a deliberate policy” to “instill fear among the population and silence opposition.” Many prisoners simply disappear.’
The CPC does not speak to immigration detention. ‘The detention of migrants does not appear to be a significant issue in Eritrea as it is not a destination for migrants but rather a source country for refugees attempting to flee to Europe and the Gulf. Eritrea’s authoritarian government reportedly does not provide information on the detention of foreigners or allow independent groups to monitor detention centres, making it effectively impossible to get any details about this issue.’
Right to medical care in prison'
The CPC does not speak to the right to medical care and the Constituion of Eritrea itself does not state healthcare or access to medical treatment to be a right allocated to the citizens. It is for this reason that medical treatmentin prisons are poor. ‘The government does not provide adequate provisions for basic and emergency medical care in prisons and detention centers, and detainees were known to have died due to lack of medical treatment during the year.’
Mental health care
The CPC nor the Constitution provides for healthcare so the idea of mental healthcare is not an area that is expected to be tackled by any legislation.
Restriction of rights
The CPC does not speak to any restrictions of prisoner’s rights but upon inspection of the facts mentioned above and below, it can be concluded that the fundamental human rights of dignity and equality are infringed due to the poor prison conditions and inhumane treatment of prisoners.
Women’srights in prison
The transitional civil code and the Constitution prohibited discrimination against women and the government had traditionally advocated improving the status of women but this does not play out in the realities of Eritrea. According to a 2017 Human Right Report, women are imprisoned for resisting the sexual advances of military officers; they face poor prison conditions; they suffer malnutrition; they do not receive proper medical treatment and many die due to such harsh conditions.
The population total is 5 million.
Forest area covers about 14.9% of the total land.
GNI per capita is at 1,490 (PPP$).
The adult literacy is at 73.8%.
Employment to participation ratio is at 76.8%.
The Homicide rate per 100,000 people is at 9.7.
There are currently 379,000 refugees from Eritrea.
Per 100,000 people, the suicide rate is at 8.7 for females and 25.8 for males.‘No national elections have been held since self-rule in 1991.’
‘A constitution adopted in 1997 remains unimplemented.’
‘Although the government issued a new criminal procedure code in 2015, requiring warrants for arrest, access to defense counsel, and other procedural safeguards, including the right to petition for habeas corpus, there is no evidence that any of these protections has been implemented.
The Constitution of the State of Eritrea 1997, availableat http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---ilo_aids/documents/legaldocument/wcms_126648.pdf, accessed on 8 March 2018.
The Criminal Procedure Code of the State of Eritrea 2015, availableat http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/101053/121589/F-308052584/ERI101053%20Eng.pdf, accessed on 8 March 2018.
Human Development Reports (Eritrea), available at http://hdr.undp.org/en/countries/profiles/ERI, accessed on 8 March 2018.
Judicial System (Eritrea), available at www.nationsencyclopedia.com/Africa/Eritrea-JUDICIAL-SYSTEM.html, accessed on 8 March 2018.
Legal Research Guide (Eritrea), available at https://www.loc.gov/law/help/legal-research-guide/eritrea.php, accessed on 8 March 2018.
The Penal Code of the State of Eritrea, available at http://www.refworld.org/docid/55a51ccc4.html, accessed on 8 March 2018.
Political Parties (Eritrea), available at http://www.nationsencyclopedia.com/Africa/Eritrea-POLITICAL-PARTIES.html, accessed on 8 March 2018.
Law Library of Congress (Eritrea), available at https://www.loc.gov/law/help/guide/nations/eritrea.php, accessed on 8 March 2018.
‘Eritrea Events of 2016’ available at Human Rights Watchhttps://www.hrw.org/world-report/2017/country-chapters/eritrea, accessed on 27 February 2018.
‘Eritrea’ available at Human Right Watch https://www.hrw.org/legacy/wr2k2/africa4.html, accessed on 28 February 2018.
‘Claiming Human Rights - in Eritrea’ (28 January 2010) available at Claiming Human Rightshttp://www.claiminghumanrights.org/eritrea.html, accessed on 28 February 2018.
‘Report on Women’s Rights Violations in Eritrea – HRCE Report 1/2017’ (13 March 2017) available atHuman Right Concern Eritreahttp://hrc-eritrea.org/report-on-womens-rights-violations-in-eritrea-hrce-report-12017/, accessed on 28 February 2018.
‘Eritrea Events of 2015’ available atHuman Rights Watchhttps://www.hrw.org/world-report/2016/country-chapters/eritrea, accessed on 28 February 2018.
‘Eritrea Immigration Detention’ available at Global Detention Projecthttps://www.globaldetentionproject.org/countries/africa/eritrea, accessed on 28 February 2018.
‘Eritrea’ (8 April 2011) available at U.S. Department of Statehttps://www.state.gov/j/drl/rls/hrrpt/2010/af/154345.htm, accessed on 28 February 2018.
‘Eritrea’ available at Human Rights Commission https://humanrightscommission.house.gov/defending-freedom-project/prisoners-by-country/Eritrea, accessed on 4 March 2018.
- United Nations Security Council resolution 1466 (14 March 2003)
- The Constitution of the State of Eritrea, Preamble
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- Soar, P (ed) The New International Directory of Legal Aid (2002) Kluwer Law International 92
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