Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 292, Mars 1994

1. 411. The Committee examined this case at its May 1993 session, when it presented interim conclusions (see 287th Report, paras. 506-519, approved by the Governing Body at its 256th Session (May 1993)).
2. 412. The Government presented a further reply in a communication dated 28 October 1993.
3. 413. Sudan has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), but it has ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 414. At its May 1993 session the Committee examined allegations relating to the detention of trade unionists and to acts of violence and torture committed against them by the authorities in so-called "ghost houses". The complainant organization in particular named four trade unionists who had allegedly been severely tortured: Magdi Muhamadani, Salah, Mamoun and Abdalla. The Government did not deny that the first three persons mentioned had been imprisoned for political reasons but it provided no response to the allegations that they had been tortured. The Committee noted that the first three persons in question had been released and had returned to their jobs. The Government indicated that it had no information in respect of Abdalla, the fourth person, but that no one of that name had been tortured.
2. 415. At the same session the Committee presented the following recommendations (see 287th Report, para. 519):
   • (a) The Committee deplores the Government's lack of response to the allegations of torture against three unionists and asks the Government to carry out an inquiry into this complaint so that appropriate measures, including compensation for damages suffered, may be taken.
   • (b) The Committee deplores the Government's detention of these trade unionists.
   • (c) The Committee requests the Government to indicate what specific charges were filed against the three trade unionists, Magdi Muhamadani, Salah and Mamoun, or, if no charges were filed, the reasons for their detention. The Committee would also request the Government to indicate whether these detentions were approved by a judge and to indicate where the individuals were imprisoned.
   • (d) The Committee requests the complainant to provide more detailed information about the identity of the fourth trade unionist, Abdalla, so that the Government might provide a specific response to the allegations.
   • (e) The Committee considers that the procedure contained in the National Security Act which allows appealing arrest and detention orders to the Revolution Command Council, which is not a judicial body, as well as the provision of the Act extending to three months the delay of provisional detention and those concerning the one month immunity from rearrest, in no way constitute guarantees of due process. The Committee urges the Government to reconsider these legal provisions and guarantee full access to independent legal authorities. The Committee would also request the Government to explain precisely the meaning of a detainee's right to be informed "in good time" of the reasons for arrest.

B. The Government's further reply

1. 416. In its communication of 28 October 1993 the Government states its conviction that the allegations presented by the ICFTU are entirely unfounded and that they merely constitute political provocation designed to undermine Sudan, its political life and choice of civilization. It does however indicate its readiness, in a spirit of cooperation with the ILO, to reply to the allegations. It states that it expects that the ILO will in return treat the allegations in an objective and neutral manner and that it will take account of the fact that the political opposition in Sudan is aiming to paralyze the nation's development process. Since it had found no place for itself in the Sudanese national trade union movement the opposition subsequently turned to foreign trade union organizations which are totally isolated from the reality of life in Sudan and the radical changes taking place there under the Revolution for National Salvation, and which believe the lies and calumny brought before the ILO.
2. 417. The Government reasserts that freedom of association is guaranteed in Sudan for all trade unions and trade unionists and consequently their concerns may be voiced and their problems resolved with the Government through official channels and due legal process. Moreoever the Confederation of Sudanese Workers' Trade Unions is sufficiently powerful and effective to deal with such complaints whenever their true objective is to settle labour disputes and not to whip up political tension.
3. 418. The Government then proceeds to make certain observations relating to the form of the complaint presented by the ICFTU. It points out that the complaint does not give the full names of the doctors detained and allegedly tortured, i.e. their name and that of their father and grandfather for identification purposes, since thousands of persons in Sudan bear the first names Mamoun, Magdi, Salah and Abdalla. The complaint also omits to indicate these doctors' professional address or place of residence; nevertheless the Government has employed all means in its endeavour to identify the doctors so as to question them and respond to the allegations. The complaint fails to state the relationship between the complainant confederation and the complainants or the authors of the complaint (none of the three doctors, according to their personal statements, has presented a complaint to the confederation in question or to any other organization in Sudan or abroad); nor does it indicate the relationship between the ICFTU and the Confederation of Sudanese Workers' Trade Unions. Finally, the complaint was not forwarded through the latter organization, which is a legitimate and legally established body elected by all Sudanese workers and whose task it is to protect its members' rights and safeguard their interests, irrespective of their political allegiance.
4. 419. On the merits of the case the Government indicates that it has been ascertained that the three doctors were not arrested for their trade union activities but for breaking the law, inter alia the National Security Act, the regulations in force under the state of emergency, the Penal Code and the Second Constitutional Decree. The allegations of torture are totally unfounded. Their purpose is to deceive the ILO and foreign trade union organizations and to distort the truth, since the persons allegedly tortured have made categorical denials on that score.
5. 420. The Government then indicates that the Public Prosecutor called upon a legal adviser to hold the necessary inquiry into the allegations presented. The legal adviser met the three doctors - Magdi Muhamadani, Mamoun and Salah - who stated that they were unaware of this complaint and that they had submitted no complaint either directly or through any person, body or trade union organization to any organization in Sudan or abroad. The legal adviser also put the following questions to each one of them: Where and when did the detention take place? What were the grounds for detention, the charges and the sentences? Was any appeal filed against the sentences? Were they granted the right to be assisted by a lawyer? Did security agents or anyone else ill-treat or torture them or subject them to any form of exaction in the course of their detention, the investigation or the court proceedings? Where were they held in detention?
6. 421. According to the Government, Dr. Mamoun stated that he was arrested on 28 November 1989 for having chaired a meeting of doctors in Khartoum that he had convened on 26 September 1989, and also for having declared a seven-day strike to demand wage increases and improvements in services. Charged with several violations of the Penal Code, the regulations in force under the state of emergency and the Second Constitutional Decree, he was sentenced to death. His lawyer appealed on his behalf. Pursuant to a plea for amnesty presented by the doctors to the Head of State, he was pardoned together with his colleagues who had been sentenced. He also declared that the strike was illegal, that the demands had not been submitted in writing and that prior to the strike the various stages for the settlement of disputes had not been followed. He stated that he had not been tortured and had not undergone any ill-treatment, torture or other form of exaction and that he had been treated normally. From 28 November 1989, the date of his arrest, to 12 December 1990 he had been in a security service building in the centre of Khartoum; the quarters comprised two bedrooms, a living-room, two bathrooms, a W.C., a kitchen and a large hall; Magdi Muhamadani and Salah were also held there. After being sentenced he was transferred to the prison of Kober, and he maintains that the living conditions there were excellent: the penitentiary houses a library and offers various activities, so that one does not have the impression of being a prisoner. The residents join social, health, sports and cultural committees and can choose their own food. When comparing the building where he was detained with the Kober prison he stated that the former was used for brief periods of detention, custody and interrogation whereas the prison had better facilities because it was designed for longer periods. He said that the Minister of the Interior visited him in prison to inquire about his situation and asked him whether he had any complaints of ill-treatment or torture; that the public prosecutors and judges paid him regular visits in his places of detention, asked him if he had problems, invited him to speak perfectly frankly and without fear and informed him that they were there to listen.
7. 422. Dr. Magdi Muhamadani stated that he was arrested on 23 August 1992 and taken into custody in accordance with the state of emergency regulations and that his detention did not constitute any form of anti-trade union action. He said that he was a member of the Democratic Front, that he was questioned but neither charged nor sentenced. He was released on 17 October 1992. He was held in the same security service building as Dr. Salah and was subsequently transferred to the Kober prison where he remained until his release. He was not tortured and was treated normally. Referring to life in the prison, he stated that each room was occupied by four inmates and that three meals, all with tea, were served.
8. 423. Dr. Salah, for his part, stated that he was summoned to appear before the Presidency of the security service on 23 August 1992, the date on which he, like Dr. Magdi Muhamadani, was arrested. He was interrogated but not charged. He was released on 17 October 1992. He was not sentenced and was held in the same security service building in the centre of Khartoum as Dr. Magdi Muhamadani. When asked about the conditions of his detention he replied that there was a kind of daily routine which began for people who so wished with morning prayers and readings from the Koran. At 6 a.m. tea was served. Inmates were permitted to drink tea and converse in the evenings. Later they were authorized to move around inside the building. Each inmate was able to accompany the others in their movements and visit them in their rooms. They were allowed to wash their clothes and perform ablutions without any restrictions. His family was permitted to visit him on two occasions. Three meals and tea were served to them. The food was the same as that encountered in any average Sudanese household. He was well treated, experienced no problem with the officers in charge and underwent no ill-treatment or torture. Referring to the building in which he was detained, he stated that it was one of the buildings in which state officials were housed in the centre of Khartoum, the rooms being well fitted out and the lighting adequate. There was a library, a television set and a refrigerator. Replying to a question relating to his political activities he said that he engaged in no political activities and had no political allegiance; that he had never been a trade unionist, had never stood as a candidate in trade union elections, had never held any position in a trade union, nor taken part in any strikes, whether legal or illegal. His salary continued to be paid to him whilst he was in detention. After his release he returned to his work with no difficulty. When asked about "ghost houses" he smiled and said that he had heard talk of them but had never seen one and did not know what the words stood for.
9. 424. The Government adds in this respect that "ghost houses" do not exist, that this is a term foreign to Sudanese parlance and is used by the political opposition with the purpose of whipping up political tension.
10. 425. The Government states that the complainant organization has never forwarded any information in respect of the person referred to as Abdalla. The relevant Sudanese departments have spared no efforts in an attempt to identify him and have no knowledge of any nurse named Abdalla or otherwise being arrested; similarly the security registers do not indicate the arrest of any nurse. Moreover the three doctors stated that there was no nurse among the detainees. Consequently the Government believes that the allegation is void and not based on fact. The Government reasserts that its security services do not resort to any form of torture since this is prohibited by law. Any officer guilty of torturing a detainee is sanctioned. Torture is an inhumane practice in contradiction with Sudanese civilization, religion, traditions and values. Sudanese history bears no witness to torture or murders.
11. 426. In respect of the National Security Act of 1990 as amended in 1992 the Government points out first of all that certain unintentional errors in its previous reply should be rectified; it had stated that detention takes place with the approval of a judge for a period of three months, and that any appeal, extension of the period or new arrest are at the discretion of the Revolution Command Council which may extend the period of detention by another period of three months, if it deems it necessary, inter alia for security reasons. The Government declares that in fact decisions to extend a period of custody or to make new arrests are taken exclusively under the supervision of the judicial authorities which enjoy total independence of the executive power and that neither the Revolution Command Council nor any other executive authority exercises any power over them. All decisions taken pursuant to arrest fall within the unchallenged jurisdiction of the judicial authorities. This authority is presided over by a Supreme Court judge, as laid down in the National Security Act, article 40(a). Moreover, the said Act entitles any individual claiming to have suffered injustice, torture or ill-treatment to institute legal proceedings against the security service or any of its members.
12. 427. The Government goes on to state that individuals are taken into custody on the basis of security service information relating to offences committed or about to be committed which are addressed by legislation - whether the state of emergency regulations or the Penal Code; its purpose is to conduct the necessary investigation; whenever the charges are not substantiated the detainee is immediately released.
13. 428. Finally the Government indicates that the term "in good time" was used by mistake in its previous reply; the correct term corresponding to Arabic usage is "at an appropriate time". The detainee's right to be informed within an appropriate period of the grounds for arrest implies that he/she shall be questioned within 72 hours of being taken into custody and must be informed of the grounds for arrest. If this period is insufficient to conclude the inquiry the director may extend the period of interrogation up to a maximum of one month.
14. 429. The Government adds that individuals have free access to the premises of the Public Prosecutor's Office and to those of the judicial authorities to present petitions against the security service and its officials. It points out that none of the three doctors nor the person referred to by the first name Abdalla, who were allegedly tortured, submitted any complaint against a member of the security service in respect of torture or ill-treatment. This in the Government's view is proof of lying and calumny on the part of those submitting the complaint to the ICFTU.

C. The Committee's conclusions

1. 430. Before examining the substance of the present case the Committee wishes to present certain comments on the Government's statement that the allegations made by the ICFTU are entirely unfounded and are merely political provocation designed to undermine Sudan.
2. 431. The Committee draws the Government's attention to the International Labour Organization's function in the field of freedom of association and the protection of the individual, i.e. to contribute to the effectiveness of the general principle of freedom of association as one of the primary safeguards of peace and social justice. The Organization's function is to secure and promote the right of association of workers and employers. It is not to level charges at, or to condemn, governments. In fulfilling its task the Committee takes the utmost care, through the procedures it has developed over many years, to avoid dealing with matters which do not fall within its specific competence. It has been the Committee's steadfast practice to consider whether or not, in each particular case, a government has ensured within its territory the free exercise of trade union rights (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paras. 23 and 25).
3. 432. As regards the Government's observations relating to the form of the ICFTU complaint, the Committee must inform the Government that the complaint is perfectly receivable since it has been submitted by an organization having consultative status with the ILO (Digest, op. cit., para. 34).
4. 433. Referring to the substance of the present case the Committee notes that the Government speaks of an inquiry conducted by order of the Public Prosecutor in an endeavour to shed light on the allegations. The Committee notes that the three doctors questioned in the course of this inquiry, Magdi Muhamadani, Salah and Mamoun, stated that they had not submitted any complaint either directly or through any person, body or trade union organization to any organization in Sudan or abroad.
5. 434. In respect of the specific charges brought against these three persons or the grounds for their detention the Committee notes the Government's statement that Dr. Magdi Muhamadani and Dr. Salah were arrested on 23 August 1992 and released on 17 October 1992 and that they were questioned but neither charged nor sentenced. They also appear to have stated that the grounds for their detention were not linked to trade union activities. In respect of Dr. Mamoun the Committee notes the Government's statement that he had called a strike in breach of the law, that he was arrested on 28 November 1989 and accused of several offences under the Penal Code, the state of emergency regulations and the Second Constitutional Decree and was sentenced to death. He was subsequently released after being pardoned.
6. 435. The Committee observes that according to the Government's statement the three persons in question gave detailed descriptions of their living conditions whilst in detention; they declared them to be normal or even excellent and denied having undergone any ill-treatment. They apparently returned to their jobs without any problem after being released.
7. 436. The Committee can but note that all the extremely serious allegations made by the complainant organization are denied in the Government's declarations. Having regard to the particular circumstances of this case, this complete contradiction may cast serious doubt upon the impartiality and thoroughness of the inquiry conducted by the Sudanese authorities.
8. 437. The Committee notes that the Government does not deny that Mr. Magdi Muhamadani and Mr. Salah were detained without being charged or sentenced. In this respect the Committee draws the Government's attention to the principle that the arrest by the authorities of trade unionists concerning whom no grounds for conviction are subsequently found is liable to involve restrictions of trade union rights. Governments should take steps to ensure that the authorities concerned have instructions appropriate to eliminate the danger which arrest for trade union activities implies (Digest, op. cit., para. 97). The Committee deplores the fact that these two persons were detained and requests the Government to ensure that custody is limited to 72 hours and resorted to solely in order to facilitate the course of a judicial investigation.
9. 438. In respect of Mr. Mamoun, it appears to the Committee that his arrest, detention and death sentence are indeed linked to the fact that he had called a strike and encouraged doctors to stop work. Whilst noting that Mr. Mamoun was subsequently pardoned by the Head of State and released, the Committee expresses its deep consternation in respect of the death sentence pronounced against him. The Committee urgently requests the Government to take the necessary measures to ensure that trade union leaders and members are not detained and sentenced for performing trade union functions or for engaging in trade union activities to defend the interests of their constituents.
10. 439. Faced with the contradiction between the complaint and the Government's reply to the allegations of torture or other ill-treatment, the Committee can only emphasize once again the importance that should be attached to the principle laid down in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights according to which all persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person (Digest, op. cit., para. 86).
11. 440. In respect of Abdalla, the fourth trade unionist named in the allegations, the Committee regrets that the complainant organization did not supply more detailed information on his identity. It notes the Government's statement that the relevant Sudanese departments have spared no efforts in an attempt to identify him but have obtained no information on any nurse named Abdalla or otherwise being arrested; and that the security registers do not indicate the arrest of any nurse.
12. 441. In reference to the National Security Act provisions concerning the procedure for appeals before the Revolution Command Council against decisions to arrest and detain, the Committee notes the Government's rectification of its previous declarations. All decisions taken pursuant to arrest fall within the jurisdiction of the judicial authorities supervised by a supreme court judge in accordance with the National Security Act, article 40(a). Moreover the said Act entitles any individual claiming to have suffered injustice, torture or ill-treatment to institute legal proceedings against the security service or any of its members. The detainee must also be questioned within 72 hours and informed of the grounds for arrest.
13. 442. The Committee takes note of these explanations and of the extracts from the National Security Act supplied by the Government with its reply (see appendix). Firstly, the Committee notes with regret that this Act does not appear to have been applied to Dr. Magdi Muhamadani and Dr. Salah in view of their statements that they were never charged or sentenced. Secondly, the Committee continues to believe that the provisions stipulating that detainees shall be advised within a period which may be extended up to one month of the grounds for their arrest, and those governing: (a) the extension of the period of custody for reasons of national security; and (b) immunity limited to one month, in no way constitute guarantees of due legal process. The Committee reiterates its urgent request to the Government to take the measures necessary to allow this legislation to be amended and, in so doing, to ensure that detained trade unionists, like any other person, enjoy due legal process and are entitled to the proper administration of justice, i.e. in particular, that they are informed of the charges being brought against them, have the necessary time to prepare their defence, hold unhindered communication with the legal counsel of their choice and have a judgement rendered without delay by an impartial and independent judicial authority. It requests the Government to keep it informed of all measures taken in this respect.

Z. ANNEX

• APPENDIX
• EXTRACTS FROM THE NATIONAL SECURITY ACT AS AMENDED IN 1992
• (Extracts supplied by the Government in its reply)
• Article 40(a):
  • - Paragraph 2: The detainee is advised at an appropriate time pursuant to
• his/her arrest of the grounds for arrest. The precise translation of "dans un
• délai approprié" is "at an appropriate time" and not "in good time", as
• indicated in the reply. This means that the detainee must be advised of the
• grounds for his/her arrest within three days, it being possible to extend this
• period up to one month.
  • - Paragraph 5: The detainee may appeal to the judge whenever the rules of this
• paragraph governing detention are not observed. The judge may pronounce the
• decision he deems appropriate to resolve the violation.
  • - Paragraph 7: Any decision regarding the period of custody shall be
• submitted, together with accompanied by a statement of the grounds, to the
• judge within three days of the date upon which the decision was taken.
  • - Paragraph 8: The judge may, after examining the grounds and hearing the
• detainee or any representation on his/her part, authorize the period of
• custody to be extended if the judge believes that national security
• imperatives so require, or, conversely, order the detainee's release.
  • - Paragraph 9: It is unlawful to take individuals back into custody if they
• have been released by a judge before expiry of a period of one month or in the
• absence of the judge's authorization.