|
|
|
backCase of arrest & detention of Rafael Marques, October 1999
25 October 1999
Rafael Marques (RM) was detained in his house with an arrest warrant, in the early morning of 16 October 1999. RM had earlier been interrogated by DNIC (Angolan Department of Criminal Investigation) on 12 October 1999. He is held at the Laboratório Central de Criminalistica (under DNIC). RM's family, partner and lawyer are not allowed to visit him, nor to bring him food. RM may be on hunger strike. RM appears to be suspected of committing the crime of defamation against President dos Santos.
- What are the possible charges?
The precise article and law under which RM was arrested is not known. Neither RM's lawyer nor family have a copy of the warrant of arrest. However, it appears that the arrest relates to an article RM wrote for Folha 8 on 3 July with the title O baton da ditatura (The lipstick of dictatorship) in which he stated that President dos Santos was responsible for the destruction of the country and the promotion of corruption. It seems that what precipitated the arrest was an interview RM gave to Rádio Ecclésia on 14 October 1999 in which he reaffirmed what he said in the article.
It seems likely therefore that he has been arrested for defamation or injury against the President. There are four provisions in Angolan law under which he may have been arrested and may be accused:
Art 407, Codigo Penal Ordinary defamation Punishable by imprisonment up to 4 months Art 181, Codigo Penal Injury against public authorities Punishable by imprisonment up to 12 months Art 43, Lei de Imprensa Crime of abuse of media Punishment to be applied as set out in the Codigo Penal Art 18, Lei dos Crimes Contra a Segurança do Estado (1978) Injury or offence to leaders Originally punishable by imprisonment of 2-8 years, but the punishment was amended by Arts. 16 and 17(2) of Alterações a Lei dos Crimes Contra a Segurança do Estado (Lei N.22-C/92, 9 Setembro 1992)* to have the same punishment as in Art.181 Codigo Penal
[* Artigo 16, Alterações a Lei dos Crimes Contra a Segurança do Estado: "As injurias ou ofensa a honra e consideracao devidas ao Chefe do Estado serao punidos nos termos do artigo 181 do Codigo Penal..."]
- What are the human rights/legal concerns?
- Arbitrary arrest & detention by DNIC
The DNIC could have called RM in for questioning on suspicion of having committed any of the above offences. But he should not have been arrested and taken into custody because none of the possible offences carry a maximum penalty of more than 12 months. The law on pre-trial detention (Lei da prisao preventiva em instrucao preparatoria, Lei no.18-A/92, 17 Julho 1992) permits a suspect to be taken into custody only if the crime is punishable by imprisonment of more than 12 months. (A person can also be detained if he is caught flagrante delicto or there is a danger that he will abscond).
- Arbitrary detention confirmed by Procurador & continued by DNIC
A Procurador confirmed (a legalização) the detention within 24 hours of the arrest as provided by the pre-trial detention law. However, as the law did not permit pre-trial detention in this case, the Procurador should have ordered that RM be released.
- Arbitrary incommunicado detention
RM has been held incommunicado, without access to both his lawyer and family/partner, in contravention of the law. Even if pre-trial detention was permissible, the law on pre-trial detention says that a detainee can communicate with the outside world after the first interrogation (which occurred the same day RM was arrested - 16 October). The Procurador may order a continuation of the incommunicado detention for up to five days for ordinary crimes or up to 10 days for crimes against state security. The Procurador has reportedly said that no such order was made. 25 October is the 10th day of RM's detention. The Procurador may also restrict communication at any time during pre-trial detention, though no order seems to have been made. Art. 40 of the Angolan Constitution guarantees all prisoners the right to receive visits (and to correspond with) family and friends, only subject to restrictions which are permitted by law.
- The detention is not a legitimate restriction on freedom of expression under international human rights treaties
Angola has ratified and is therefore legally bound to respect the International Covenant on Civil and Political Rights (ICCPR). Art. 19(3) allows restrictions on the right to freedom of expression, among others, to protect "national security" and "for respect of the rights or reputation of others". It is considered that it is not legitimate to punish someone on the ground national security unless the expression was likely to incite imminent violence. Although there are conflicting views, there is an emerging trend that political leaders should not normally be protected by criminal defamation laws and should rely on laws of civil defamation, which normally does not lead to imprisonment.
Furthermore, even if imprisonment for criminal defamation is legitimate, the Angolan law that provides for longer punishments for injury to the President or other public authorities than against other citizens may be unconstitutional under Art.18 of the Angolan Constitution that stipulates everyone is equal before the law and enjoy the same rights and duties.
