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Chapter VI, B, 2, Liberty and Security of the Person

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Chapter VI, B, 2, Liberty and Security of the Person A/HRC/29/CRP.1 335. Disciplinary matters are managed by the Disciplinary Committee of the Ministry of Justice. 359 This arrangement may constitute a breach of the independence of the legal profession as it puts lawyers at risk of undue pressure from the Government. 336. There is no functioning and institutionalised system of public defence, not even for criminal matters. Nevertheless, according to national law a private lawyer should be assigned to represent the accused in cases before military courts, for trials of children and in the most serious criminal cases. In addition, following the closure of Asmara University in 2006, no legal education was available in Eritrea until the Legal College opened in 2010. VI. Findings of the Commission A. Controlled, Silenced and Isolated 1. Surveillance of the population in violation of the right to privacy (a) Legal framework 337. The right to privacy guarantees the protection of all persons against arbitrary and unlawful interference with privacy, family, home or correspondence. It is enshrined in article 17 of the International Covenant on Civil and Political Rights. Under international human rights law, any interference with the right to privacy must be prescribed by law and comply with the principles of legality, necessity and proportionality. 360 338. Accordingly, the Eritrean Government should guarantee that information gathered by State officials with regard to an individual’s private life is limited to what is essential in the interests of society. In this regard, the surveillance of individuals and their communications by any measures should not arbitrarily or unlawfully interfere with an individual’s privacy, family, home or correspondence. Such measures should be strictly regulated by law and restricted to what is necessary, for example for legitimate law enforcement or intelligence purposes. Mass surveillance programmes are consequently deemed to be arbitrary, even if they serve a legitimate aim, such as protecting national security, and are provided for by law. 361 Furthermore, the Government should ensure that the gathering and storage of personal information in electronic databases is regulated by law and that individuals are informed of the kind of information collected as well as of the intended purpose of establishing such databases. 339. The Commission notes that during the period under investigation, Eritrean law provided that the domicile of natural persons is inviolable and that no one may enter against their will, nor may a search be carried out therein except in the cases provided by law. 362 Due to a dearth of information on national laws, the Commission was unable to establish whether other provisions that protect the right to privacy and regulate the interferences and restrictions to the enjoyment of this right exist. 359 See Luwam Dirar and Kibrom Testafagir, Introduction to Eritrean legal system and research , para. 4.2, available athttp://www.nyulawglobal.org/globalex/Eritrea1.htm. 360 Human Rights Committee, General Comment No. 16, para. 3 and 4 and General Comment No. 31, paragraph 6. 361 Report of the High Commissioner on Human Rights on the right to privacy in the digital age, A/HRC/27/37, para. 25. 362 Article 13 of the Transitional Criminal Code and 571 of the Transitional Penal Code – see CRC/C/41/Add.12, par. 132. The Commission notes that these Transitional Codes have been replaced by new Codes promulgated by the Eritrean Government on 11 May 2015. 90 A/HRC/29/CRP.1 (b) The system for mass surveillance and control of the population 340. The Commission collected a body of testimony that indicates the existence of a complex and multi-layered system to conduct surveillance of and spying on the Eritrean population, both within and outside the country, with the ultimate purpose of controlling it. Information collected through this system is then used to take actions aimed at instilling fear in people and maintaining a state of control leading to arbitrariness that paralyses them: arbitrary arrests, unjustified detentions, torture, enforced disappearances, extrajudicial killings, etc. 363 This system is partly a continuation of structures operating within the Eritrean People’s Liberation Front (EPLF) during the armed struggled and inherited by the current ruling party and successor to the EPLF, the People’s Front for Democracy and Justice (PFDJ). 364 The Commission gathered testimony from victims and witnesses as well as former spies. They informed the Commission that the Eritrean Government systematically recruits individuals to spy and conduct surveillance activities on individuals and entities within and outside the country. (i) Local population 341. The information that the Commission collected abounds with testimonies detailing the rampant use of spies in Eritrea in order to collect information on the conduct of individuals and entities. The determination to control the local population has generated a complex web of spying networks such that there are spies almost everywhere. 365 This web is run by numerous individuals in different entities: the political machinery of the PFDJ, the National Security Office, military intelligence units, and administration units at local government level. 366 It has multiple layers of reporting; nevertheless, all these entities finally report to the Office of the President. The recruitment of spies is done at the political party level - where recruits assume the functional title of political cadres 367 - and at every level of the administration (through the local administrative zones) and the military (as part of its intelligence). 368 In a country where spying is so widespread, almost everyone is suspected or expected to be spying for the Government. 369 To give an idea of the pervasiveness of the spying web, these are the words of a witness: “ In Eritrea everyone is a spy - local housewives, farmers, etc. So they know when you arrive and when you leave. Your own neighbours report you to the authorities. ” Another person stated: “ The distrust between people is very high. You do not even trust your own brother; he could be even part of the national security. One never knows exactly who is a spy in the prisons too. ” A former university student also informed the Commission of how he and many others were recruited by a minister to spy on university students in 2001 and of the perceived benefits attached to this: “The university students, he said, were demanding this and that ... I was called in and he asked me to go and find out what was going on. I realised later that it was an intelligence mission ... He wanted me to gather information – to be like an insider. At first, there was not much to report on. 363 See chapterVI, B, Rule by fear. 364 See chapter III, B, Historical Background - The struggle for independence. 365 TBA061, TNR018, TNR008, TFM025. 366 TSH001, TBA055. For information on national security and military structures, see chapter V, A, 2, Security sector. 367 TBA055, TFM032. 368 S143d, TSH001, TBA055, TSH082, TBA061, TNR022. 369 TBA061, TNR018, TCDP043, TSH018, S035, TAM076. 91 A/HRC/29/CRP.1 Whatever information I gave him, he already knew of it. I came to understand that I was not the only one on the ground. Other people could also know what I was doing… We do not know who is hired as a spy. In a room with ten people, maybe three could be spies. These people that are mandated to do surveillance work do it for a number of reasons: easy money, little labour, exemption from national service, being untouchable. They were lots of them, I had friends that I have no idea they were selected. They were selected probably by word of mouth.” 342. Even without being officially recruited as spies, people in Eritrea are expected to spy and report on their neighbours. If one’s neighbours engage in “deviant” conduct, one could be arrested and detained for not detecting it and reporting it to the authorities. Furthermore, if you refuse to spy on others, you can be subjected to torture or detention. 370 343. According to accounts received, individuals are recruited into the spying web for a number of reasons, because of their or their family’s perceived allegiance to the PFDJ; their young age which provides a better opportunity to indoctrinate them; their status in society and their capacity to access specific environments where opposition may grow, such as educational institutions; or who they know and are friends with. 371 One witness spoke to the Commission about being recruited as a 15-year-old child, after a failed attempt at military training in Sawa. He told the Commission how he was trained and what he was expected to do: “ We were 13-14 at that time ... They gave us training in Asmara at a Government office. We came to the office two to three times a week. They taught us how to behave, what information to tell them. They gave us IDs. I went there every day for four months. You spy on the neighbours and report to them: they take notes. I used to have a red book with my name ... I was asked to spy on a big businessman. When he went to a café, I also went to the same café. ” Another former spy said: “ After the work on the farm was finished we were all separated. I was sent to the intelligence unit because my parents were freedom fighters and my father was a martyr. They thought they could trust me. All the people in the intelligence unit were children of former freedom fighters. ” 344. Spies’ assignments range from extracting specific information to conducting general surveillance activities in order to detect “sanctionable” conduct. The spy network targets almost everyone in Eritrean society. This includes spying on your neighbours; conscripts during national service; people trying to avoid or escape from national service; people suspected to be planning to flee the country; relatives and/or critics of the Government; members of non-governmental organizations and religious groups; detainees in places of deprivation of liberty, as well as on individuals who are suspected to be spies for foreign entities and governments.
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