Human Rights Committee

Communication No. 2046/2011

Views adopted by the Committee at its 112th session (7–31 October 2014)

Submitted by:	Hadhoum Hmeed Mohamed (represented by Alkarama for Human Rights)
Alleged victim s :	Saleh Salem Hmeed (the author’s husband), Al Sadek Saleh Hmeed (the author’s son), Al Mahdi Saleh Hmeed (the author’s son), Ali Saleh Hmeed (the author’s son), Adel Saleh Hmeed (the author’s son), and Fredj Saleh Hmeed (the author’s son), and herself (as wife and mother of the victims)
State party:	Libya
Date of communication:	4 February 2011 (initial submission)
Document reference:	Special Rapporteur’s rule 97 decision, transmitted to the State party on 13 April 2011 (not issued in document form)
Date of decision :	17 October 2014
Subject matter s :	Arbitrary arrest and detention; cruel, inhuman or degrading treatment
Substantive issues :	Prohibition of torture and cruel or inhuman treatment; right to liberty and security of person; respect for the inherent dignity of the human person; right to privacy; right to family protection; freedom of expression and opinion; right to peaceful assembly; and right to an effective remedy
Procedural issue :	Lack of cooperation from the State party
Articles of the Covenant :	2 (para. 3), 7, 9 (paras. 1–5), 10 (para. 1), 17, 19, 21 and 23
Article of the Optional Protocol:	5 (para. 2 (a))

[Annex]

Annex

Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights (112th session)

concerning

Communication No. 2046/2011*

Submitted by:	Hadhoum Hmeed Mohamed (represented by Alkarama for Human Rights)
Alleged victim s :	Saleh Salem Hmeed (the author’s husband), Al Sadek Saleh Hmeed (the author’s son), Al Mahdi Saleh Hmeed (the author’s son), Ali Saleh Hmeed (the author’s son), Adel Saleh Hmeed (the author’s son), and Fredj Saleh Hmeed (the author’s son), and herself (as wife and mother of the victims)
State party:	Libya
Date of communication:	4 February 2011 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 17 October 2014,

Having concluded its consideration of communication No. 2046/2011, submitted on behalf of Mr. Saleh Salem Hmeed et al. under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.The author of the communication, dated 4 February 2011, is Hadhoum Hmeed Mohamed, a Libyan national living in Tripoli. She claims that her husband, Saleh Salem Hmeed, born in 1942, was the victim of violations by Libya of articles 2 (para. 3), 7, 9 (paras. 1–5), 10 (para. 1) and 23 of the Covenant. She further maintains that she and her sons, Al Sadek Saleh Hmeed, Al Mahdi Saleh Hmeed, Ali Saleh Hmeed, Adel Saleh Hmeed and Fredj Saleh Hmeed, were the victims of violations by Libya of articles 2 (para. 3), 7, 9 (para. 1), 10 (para.1), 17, 19, 21 and 23 of the Covenant. The Optional Protocol entered into force for the State party on 16 May 1989.

The facts as presented by the author

2.1On 3 November 1986, Saleh Salem Hmeed, the author’s husband, reported to the authorities that a body had been found in his well. As soon as the public prosecution service opened the investigation, Saleh Salem Hmeed was arrested and placed in police custody. The victim’s widow, who stood accused of adultery and of being an accessory to the murder, was also arrested. Saleh Salem Hmeed was held in a tiny isolation cell for one month, despite the fact that the law sets a maximum of 48 hours. While in custody, he was tortured by the authorities in order to extract a confession and incriminate him for the murder. As a result, Saleh Salem Hmeed experienced psychiatric problems with severe long-term effects. Although the Prosecutor of Tripoli ordered his placement in a psychiatric facility, the prison administration refused to accord him medical supervision. He was brought before a judge for the first time on 28 January 1987, after the indictments chamber referred him to the Criminal Court of Tripoli on the following charges: premeditated murder, adultery with the victim’s wife and digging a well without official authorization.

2.2During the proceedings, Saleh Salem Hmeed had the assistance of a lawyer appointed by the Prosecutor-General, but only for the trial phase. Following an expedited hearing, he was convicted on 2 April 1988 of rape and murder and was sentenced to rigorous imprisonment for life. The ruling was based chiefly on the testimony of the victim’s wife — who, as co-defendant, had been acquitted — and of her brother. Saleh Salem Hmeed then signed a form and an official register with a view to appealing the ruling. However, the People’s Advocacy Department, which should have transmitted the appeal to a higher court, did not complete the necessary procedures and the appeal did not take place, making the ruling definitive.

2.3As soon as an independent lawyer could be retained, and because of the judicial authorities’ categorical refusal to review the case on appeal, an application for a retrial was filed with the public prosecution service of the Criminal Court of Tripoli with a view to having the case reconsidered and ensuring that Saleh Salem Hmeed was given a fair trial. The family also made various informal approaches to the judicial and political authorities, resulting in a decision by the Ministry of Justice to reopen the case in 1994 after the detectives heading the investigation found new evidence that justified a retrial. Although suspects were arrested and questioned, they were eventually released when the country’s highest political authorities intervened, and the case was once again closed. None of the actions undertaken produced results, and the public prosecution service of Tripoli formally rejected the application for a retrial on 15 March 1997, in a decision recommending that Saleh Salem Hmeed seek a pardon in order to be released, which he refused to do because he considered himself to be the victim of an injustice.

2.4On 29 January 2001, the family initiated legal proceedings in the Appeals Court of Tripoli against the secretary and the director of the General People’s Committee for Justice, the director of the Judicial Oversight Committee and the director of the People’s Advocacy Department on grounds of negligence by the Department (in handling the appeal of the sentence dated 2 April 1988); no action has been taken in these proceedings.

2.5In response to the violations suffered by Saleh Salem Hmeed, the author (his wife) and their sons appealed to non-governmental organizations and activists in the field of human rights while he was still detained. They also accepted a well-known activist’s invitation to attend a peaceful sit-in planned for 17 February 2007 to protest the human rights situation in the country in general and Saleh Salem Hmeed’s situation in particular. In response, the Gaddafi Foundation contacted the family on 13 February 2007, asking them not to attend the sit-in and promising to discuss Saleh Salem Hmeed’s case with the authorities. When the family refused, they received death threats from persons claiming to represent the authorities.

2.6On 15 February 2007, some 50 security officers under the command of the director of the criminal investigation service of Tripoli, dressed in plain clothes and armed, stormed the family home, breaking doors and windows. They looted the premises, taking all of the family’s valuables, then removed those family members present and set fire to the house. In the process, the author, who was elderly and ill, was beaten, and her youngest son, Fredj Saleh Hmeed, was also beaten and arrested without a warrant.

2.7Following these events, on 16 February 2007, the author lodged a criminal complaint with the Prosecutor-General for assault, battery, robbery and arson by the security officers. The complaint was recorded but no action has been taken.

2.8Also on 16 February 2007, some of the security officers under the command of the director of the criminal investigation service of Tripoli who had taken part in the previous day’s operation arrested the author’s other sons in their homes, without a warrant and without informing them of the grounds for their arrest, and brought them to the headquarters of the directorate-general of criminal investigations.

2.9Following their arrest, the author’s five sons were held separately in complete isolation in small cells measuring only a few square metres, with no contact whatsoever with the outside world. During their detention, they were all brutally beaten all over their bodies, handcuffed and suspended by their wrists. They were also forced to eat with their hands tied. They did not receive medical care for this ill-treatment. On 22 February 2007, the author’s five sons were transferred to Al Jadida prison, where they were once again placed in individual cells and were denied medical treatment for the injuries sustained while under torture. The director of the prison personally notified them that they were “denied medical treatments on the order of the public prosecution service”.

2.10It was not until 25 July 2007, i.e. five months after their imprisonment, that the ban on medical treatment was lifted, following a complaint by the author’s five sons to the National Security Court. The subsequent medical check-up revealed marks of torture, and owing to the seriousness of their condition, the doctor ordered an emergency examination and hospital supervision for Ali Saleh Hmeed and Fredj Saleh Hmeed. He also ordered the hospitalization in a psychiatric facility of Al Sadek Saleh Hmeed, who was badly traumatized.

2.11However, these measures were not implemented. On 20 April 2007, the author’s five sons, along with other persons who were arrested in the same circumstances, for intending to take part in the same peaceful demonstration, were brought before the special court of Tadjoura in Tripoli and accused of “planning to overthrow the Government” and possession of weapons. The court referred the case to the Revolution Security Court on 24 June 2007. After a series of hearings, from which the author’s sons were absent because they refused to appear without minimum fair trial guarantees, were postponed on 20 November 2007, 4 December 2007, 8 January 2008 and 13 March 2008, they were eventually sentenced on 6 April 2008 to the following penalties: 15 years in prison for Al Sadek Saleh Hmeed, Al Mahdi Saleh Hmeed and Fredj Saleh Hmeed and 6 years in prison for Ali Saleh Hmeed. Adel Saleh Hmeed was acquitted on the same date.

2.12They were all released on 7 December 2008 after the Head of State’s son, Saif al-Islam Gaddafi, personally intervened.

2.13When Adel Saleh Hmeed was released following his acquittal on 6 April 2008, he lodged a criminal complaint regarding the burning and burglary of the family home. On 14 December 2008, in response to the complaint, a public prosecutor of Soul el Jom’a requested the chief of the local police to promptly provide information on these events. The public prosecutor also wished to know the date on which the burned-down house was placed under surveillance and the names of the agents tasked with the surveillance. However, the author has not been informed of any action taken in response to the request.

2.14On 25 November 2009, Saleh Salem Hmeed, the author’s husband, was released after 23 years in prison, following an amnesty on medical grounds.

The complaint

3.1The author first cites articles 7 and 10 of the Covenant, claiming that her husband, Saleh Salem Hmeed, was subjected to acts of torture and cruel, inhuman or degrading treatment. While in detention, he was held in isolation for a long period, causing depression and leaving serious psychological scars. Inflicting such mental anguish infringes article 7 of the Covenant. As to the rest of the family, the author herself was physically assaulted. Her sons were brutally beaten, held in isolation, tortured and denied medical care. Lastly, the author claims that setting the family home on fire, at a time when the family was particularly vulnerable, also amounted to the cruel and inhuman treatment of the entire Hmeed family.

3.2The author also claims that article 9 of the Covenant has been violated insofar as, following his arrest, Saleh Salem Hmeed was unable to challenge the grounds of his arrest before a judicial authority. Moreover, he was not brought before a judge until 28 January 1987, i.e., after 23 days in detention, without being given a reason for his prolonged detention. Saleh Salem Hmeed was never given the opportunity to challenge the ruling against him or the lawfulness of his detention. He was definitively sentenced but was denied the right to appeal his conviction. As to the author’s sons, they were arrested on 15 and 16 February 2007 without a warrant and without even being informed of the grounds for their arrest. They were then held in solitary confinement, were not brought before a judge or a competent authority and were denied the opportunity to challenge their detention or to receive the assistance of counsel.

3.3Regarding articles 17 and 23 of the Covenant, the author claims that the public authorities unlawfully and arbitrarily interfered with her privacy, family and home. Members of State security forces stormed and searched the family’s home without a warrant. In the course of this raid, the officers physically assaulted members of the Hmeed family, set fire to the house and took away Fredj Saleh Hmeed. The author stresses the arbitrary nature of this interference with their privacy, family and home. The family was devastated by the loss not only of their common living space and repository of family history but also of their means of subsistence.

3.4In relation to articles 19 and 21 of the Covenant, the author claims that the family members were persecuted for their efforts to resolve the situation of their father and husband, Saleh Salem Hmeed, including through plans to take part in a peaceful demonstration to denounce human rights violations in the country. In retaliation, the members of the author’s family received death threats and were assaulted, in violation of articles 19 and 21 of the Covenant.

3.5The author also invokes article 2, paragraph 3, of the Covenant, read alone and in conjunction with articles 7, 9, 10, paragraph 1, 17 and 23, paragraph 1. Owing to the conditions of his detention and the fact that he was in isolation for one month, Saleh Salem Hmeed was prevented from challenging the lawfulness of his detention. He was also prevented from exercising his legitimate right to appeal the first-instance ruling and to contest his conviction. All his family’s efforts were in vain. No in-depth investigation was conducted, no proceedings were brought and no reparation was awarded for any of the violations. The author and her family were thus denied an accessible, effective and enforceable remedy.

Lack of cooperation from the State party

4.On 13 April 2011, 30 April 2012, 15 March 2013 and 18 September 2013, the State party was invited to submit its comments on the admissibility and merits of the communication. The Committee notes that this information has not been received. It finds it regrettable that the State party has failed to provide any information with regard to the admissibility or substance of the author’s claims. It recalls that, under article 4, paragraph 2, of the Optional Protocol, the State party concerned is required to submit to the Committee written explanations or statements clarifying the matter and describing any measures it may have taken to remedy the situation. In the absence of a reply from the State party, due weight must be given to the author’s allegations, to the extent that these have been properly substantiated.

Issues and proceedings before the Committee

Consideration of admissibility

5.1Before considering any claim contained in a communication, the Human Rights Committee must decide, in accordance with rule 93 of its rules of procedure, whether the communication is admissible under the Optional Protocol to the Covenant.

5.2As required under article 5, paragraph 2 (a), of the Optional Protocol, the Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement.

5.3With regard to the exhaustion of domestic remedies, the Committee reiterates its concern that, in spite of three reminders having been addressed to the State party, no information or observations on the admissibility or merits of the communication have been received. The Committee finds that it is not precluded from considering the communication under article 5, paragraph 2 (b), of the Optional Protocol.

5.4The Committee notes that the part of the communication regarding the arrest, ill-treatment, trial and conviction of Saleh Salem Hmeed relates to events that occurred prior to the entry into force of the Optional Protocol for Libya, on 16 May 1989. The Committee refers to its jurisprudence and reiterates that it cannot consider alleged violations of the Covenant that occurred before the entry into force of the Optional Protocol for the State party, unless these violations continue after that date or continue to have effects which in themselves constitute a violation of the Covenant. The Committee observes that the author’s claims under article 7, in relation to the acts of torture against Saleh Salem Hmeed, and under articles 9 and 10, paragraph 1, refer to his arrest, detention and conviction in 1988, i.e., before the entry into force of the Optional Protocol for the State party. The Committee therefore finds that this part of the communication is inadmissible ratione temporis pursuant to article 1 of the Optional Protocol.

5.5Furthermore, in her allegations under article 7 with regard to Saleh Salem Hmeed, the author has not sufficiently substantiated her claim to the continuous effects of the ill-treatment to which he was subjected; therefore, these effects cannot in themselves be said to constitute a violation of the Covenant. The Committee finds that the claim with regard to Saleh Salem Hmeed under articles 7, 9 and 10, paragraph 1, read alone and in conjunction with article 2, paragraph 3, of the Covenant, is inadmissible ratione temporis under article 1 of the Optional Protocol.

5.6The Committee considers that the rest of the author’s allegations have been sufficiently substantiated for the purposes of admissibility, and proceeds to its consideration on the merits of the author’s claims under articles 2 (para. 3) 7, 9 (paras. 1–5), 17 (para. 1), 19 and 23 (para. 1), of the Covenant.

Consideration of the merits

6.1The Human Rights Committee has considered the present communication in the light of all the information made available to it, as required under article 5, paragraph 1, of the Optional Protocol. As the State party has not replied to the author’s allegations, due weight must be given to those allegations to the extent that they have been sufficiently substantiated.

Treatment of Al Sadek Saleh Hmeed, Al Mahdi Saleh Hmeed, Fredj Saleh Hmeed, Ali Saleh Hmeed and Adel Saleh Hmeed (the author’s sons) and of the author herself

6.2The Committee has taken note of the author’s allegations that, on 15 February 2007, after her sons had accepted the invitation of human rights defenders to attend a peaceful sit-in, some 50 security officers came to the family home, brutally beat the author and her son Fredj Saleh Hmeed and arrested him without a warrant; that, on 16 February 2007, security officers came to the homes of her sons Al Sadek Saleh Hmeed, Al Mahdi Saleh Hmeed, Ali Saleh Hmeed and Adel Saleh Hmeed and arrested them without a warrant and without informing them of the grounds for their arrest; that, following their arrest, her sons were held in complete isolation in tiny cells and deprived of all contact with the outside world; that they were tortured, brutally beaten and kept tied up; and that they were deliberately denied medical treatment for five months, despite being in a serious condition requiring monitoring in hospital, as was later observed. In the absence of any information from the State party, the Committee finds that the information provided to it demonstrates that the State party violated articles 7 and 9 of the Covenant with regard to Fredj Saleh Hmeed, Al Sadek Saleh Hmeed, Al Mahdi Saleh Hmeed, Ali Saleh Hmeed, Adel Saleh Hmeed and the author herself.

6.3Having found a violation of articles 7 and 9 of the Covenant, the Committee will not consider the author’s claims under articles 19 and 21 of the Covenant separately.

Treatment of the family home

6.4The Committee has taken note of the author’s allegations that, on 15 February 2007, security officers under the command of the director of the criminal investigation service of Tripoli, dressed in plain clothes and armed, stormed the family home, breaking doors and windows; that they beat the author, who was elderly and ill; that they looted the premises, taking all the valuables, then removed all those family members present and set fire to the house. The author notes that the family was devastated by the loss of their common living space, repository of family history and means of subsistence. The Committee recalls its general comment No. 20 (1992) on the prohibition of torture or cruel, inhuman or degrading treatment or punishment, in which it was not considered necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; since the distinctions depend on the nature, purpose and severity of the treatment applied. The Committee also considers that the prohibition in article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim.

6.5The Committee notes that, in this case, it was the authorities of the State party that destroyed the family home; that, during this operation, the author, who was elderly and vulnerable, was beaten and her youngest son, Fredj Saleh Hmeed, was also beaten and arrested without a warrant; and that this deliberate destruction appears to have been carried out without a warrant. Under the circumstances, the Committee considers this act of destruction to amount to reprisals and intimidation, causing severe mental anguish to the author and her family and constituting a separate violation of article 7 of the Covenant with respect to Fredj Saleh Hmeed, Al Sadek Saleh Hmeed, Al Mahdi Saleh Hmeed, Ali Saleh Hmeed, Adel Saleh Hmeed and the author.

6.6With regard to the alleged violation of article 17 of the Covenant, the Committee notes once again the author’s claims that, on 15 February 2007, security officers, dressed in plain clothes, armed and without a warrant, stormed the house, breaking doors and windows, and that they looted the premises, taking all the valuables, then set fire to the house. The Committee notes that the State party has made no comment on these claims and that due weight must therefore be given to the author’s allegations, provided that they have been sufficiently substantiated. The Committee concludes that the entry of State officials into the home of the author and her family in such circumstances, as well as the destruction of the house, constitute unlawful interference with their privacy, family and home, in violation of article 17 of the Covenant, with regard to the author and the family members who lived there.

6.7In the light of the above, the Committee will not consider the claims based on the violation of article 23, paragraph 1, of the Covenant separately.

Lack of an effective remedy

6.8The author also invokes article 2, paragraph 3, of the Covenant, pursuant to which States parties are obliged to ensure an effective remedy for any person whose rights, as recognized in the Covenant, are violated. The Committee attaches importance to States parties’ establishing appropriate judicial and administrative mechanisms for addressing claims of rights violations. It recalls its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, which states that a State party’s failure to investigate alleged violations could in and of itself give rise to a separate breach of the Covenant.

6.9In this case, following the operation of 15 February 2007, during which the author and her son, Fredj Saleh Hmeed, were beaten and the family home was ransacked and burned, the author lodged a criminal complaint with the Prosecutor-General on 16 February 2007. No action has been taken on her complaint. Lastly, Adel Saleh Hmeed lodged a criminal complaint for arson and robbery of the family home upon his release from prison in April 2008, but no action has been taken. The Committee concludes that the information before it discloses a violation of article 2, paragraph 3, read in conjunction with article 17 of the Covenant, with regard to Saleh Salem Hmeed; a violation of article 2, paragraph 3, read in conjunction with articles 7, 9 and 17 of the Covenant, with regard to Fredj Saleh Hmeed, Al Sadek Saleh Hmeed, Al Mahdi Saleh Hmeed, Ali Saleh Hmeed and Adel Saleh Hmeed; and a violation of article 2, paragraph 3, read in conjunction with articles 7 and 17 of the Covenant, with regard to the author herself.

7.The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, finds that the information before it discloses violations by the State party of articles 17 and 2, paragraph 3, read in conjunction with article 17 of the Covenant, with regard to Saleh Salem Hmeed; of articles 7, 9, 17 and 2, paragraph 3, read in conjunction with articles 7, 9 and 17 of the Covenant, with regard to Fredj Saleh Hmeed, Al Sadek Saleh Hmeed, Al Mahdi Saleh Hmeed, Ali Saleh Hmeed and Adel Saleh Hmeed; and of articles 7, 17 and 2, paragraph 3, read in conjunction with articles 7 and 17 of the Covenant, with regard to the author herself.

8.In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy by, inter alia, prosecuting, trying and punishing those responsible for the violations, and to award adequate compensation to the author and her family. The State party is also under an obligation to take steps to prevent similar violations in the future.

9.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether or not there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when a violation has been established, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the present Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party.