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'Set Dawit Isaak free'

The Local · 4 Jul 2011, 15:15

Published: 04 Jul 2011 15:15 GMT+02:00

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It is a writ of "Habeas Corpus", practically unknown in Swedish law but common practise in many other legal systems. It is an old rule, the corner stone of the core civil liberties and judicial guarantees we now call "Rule of Law" and "Human Rights".

Legal history traces the right to “Habeas Corpus” as far back as the 12th century in England. The law was first codified there in the 1600’s and it remains the central mechanism by which legal advocates and prisoners themselves can fight illegal detention and indefinite incarceration.

"Habeas corpus ad subiciendum" means "You shall present the person before a court of law" and imposes a duty to present the prisoner in the flesh, not merely to offer vague assurances about his condition. 'Habeas Corpus' guarantees that one essential thing; nothing more - not even a fair trial - but also nothing less.

In short, its central purpose is to prevent precisely what has happened to Dawit Isaak ten long years ago - that a person simply disappears, with no one having to account for his or her whereabouts.

Eritrean law provides that "every person shall have the right to petition the court for a writ of Habeas Corpus". All claims raised in the current request are in fact basic prisoners' rights that were enshrined in domestic and international law decades ago, but that Eritrea up until now has flaunted with impunity.

The Supreme Court now faces a difficult choice: It must decide whether it will turn a blind eye to the travesty President I. Afewerki has made out of the country's legal system or if it will follow the rule of law under which Eritrea ostensibly operates, according to the country's official interim constitution.

That very document, ratified in 1997 and recognized by a government appointed Constituent Assembly, protects prisoners against the kind of arbitrary abuses of power suffered by Dawit Isaak and thousands of other Eritreans who have been jailed since President Afewerki came into office.

Article 17 of the Eritrean Constitution guarantees detained persons the presumption of innocence as well as the right "to be brought before the court within forty-eight hours". The same is true for Article 61 of Eritrea's criminal code which grants detainees “prompt access to legal counsel."

According to the official writ of "Habeas Corpus" filed on July 4, 2011 with the Eritrean High Court, the incommunicado detention of Dawit Isaak also violates a number of international laws, among them articles, 6, 7, 9 and 18 of the African Charter on Human and People's Rights as well as Articles 7, 9,10, 14 and 19 of the International Covenant on the International Covenant on Civil and Political Rights.

Several obvious questions present themselves: Why was such a filing undertaken only now? And what are the chances that this motion will finally mark a true breakthrough in the case, one that brings clarity about Dawit Isaak's whereabouts and, hopefully, his release?

Both questions are difficult to answer. Over the last ten years, the Swedish government has pursued a policy of quiet diplomacy in the case; a diplomacy so timid that it has yielded no measurable sign of success since 2005 when Dawit Isaak was freed from prison for three short days, only to be immediately arrested again.

The unwillingness of government officials to adjust their strategy in the face of six years of continued failure since then is damning. Inexplicably, the Swedish Foreign Office has never mounted any legal challenges of Isaak’s detention.

Just as surprising is the fact that human rights groups like Amnesty International and Human Rights Watch also have not embraced juridical steps in their efforts to gain Isaak's release.

The initiator and principal author of the 'habeas corpus' writ, Jesús Alcalá, who is a former chairman of Amnesty International in Sweden feels strongly that both the Swedish government and the European Union should have taken much stronger action on the legal front from the very beginning:

"Not only could they have done it, they should have done it long ago, .. shortly after Dawit was detained."

Attorneys Percy Bratt and Prisca Orsonneau, co-signatories of the 'Habeas Corpus' motion, agree. As Bratt who is the Chairman of "Civil Rights Defenders" in Sweden underlines:

"To use all the legal instruments offered by the Eritrean legal system is not only appropriate but a quite obvious step in order to try to end Dawit's unlawful dention."

"It was vital to voice Dawit's case to the High Court," adds Orsonneau, a lawyer at the Paris Bar and member of "the Legal Committee of Reporters Without Borders" in France.

"Eritrean authorities continue to gag all forms of free expression and arrest journalists. A positive answer to the writ would give us hope for the future. "

Evidence that such legal measures can be effective came just a few days ago from Djibouti, where six journalists were released from prison in response to a petition filed before the Supreme Court there.

Percy Bratt further emphasizes that the need for proper legal representation is equally important at home.

Just a few months ago, Bratt, together with Attorney Olle Asplund, formally presented the Swedish government with a careful analysis in which the two attorneys argued that both the Swedish government and the European Union (EU) have a legal obligation to avail themselves of all possible options to ensure Dawit’s safe return, including through the imposition of sanctions and other punitive measures, such as issuing travel restrictions for Eritrean diplomats or preventing special tax collections from Eritrean citizens living in Sweden.

Great Britain has put a stop to this form of blackmail which involves threats against family members back home in Eritrea. This is one of many steps the British government enacted after the Eritrean government imprisoned four British citizens in December 2010. The men were released just last month.

Longtime activists like Björn Tunbäck, Member of the Board of "Reporters Without Borders" in Sweden, feel that time is quickly running out:

"Considering the time Dawit has spent in illegal custody, the fact that some of his imprisoned colleagues have already died, we must not wait ... We fear for him."

After living through so many years without any news about Dawit, his brother considers the 'Habeas Corpus' writ an option of last resort, especially since Dawit has suffered for years from diabetes which requires urgent medical care.

"After ten years we cannot rely only on behind-the-scenes diplomacy," says Esayas Isaak. "It´s important to test all possible actions that might be the key to freeing Dawit."

A decision by the Eritrean Supreme Court is expected shortly and the best case scenario would be that the judges immediately order Isaak's release. Alcalá hopes that at the very least "the court decides that the Eritrean authorities will present Dawit Isaak and that they will provide him with an attorney."

Story continues below…

The Swedish government should do everything in its power to support the "Habeas Corpus" request, including issuing a public demand for Dawit Isaak's immediate release.

If the Eritrean judges somehow reject the motion, it is time for Swedish Foreign Minister Carl Bildt, together with his European and African counterparts, to take decisive action.

They must make it unmistakably clear to President Afewerki that the brutal mistreatment of a European citizen and the general disregard for the most fundamental human rights principles guaranteed in Eritrea's constitution will not be tolerated.

Arne Ruth is a publicist and former culture editor at Swedish newspapers Dagens Nyheter and Expressen.

Susanne Berger is a US-based German historian heavily involved in research into the life of Raoul Wallenberg, a Swedish diplomat who helped prevent the arrests of thousands of Hungarian Jews during the Second World War.

Dawit Isaak (b. 1964) is an Eritrean-born author and journalist who was arrested in Eritrea on September 23, 2001, as part of a crackdown on the independent media in the country.

Since then he has been held in custody without formal charge or trial. In October 2005, Eritrean authorities briefly released Mr. Isaak for three days, only to immediately detain him again.

Since then, he has not been allowed contact with the outside world nor has he had access to any legal representation. Mr. Isaak had fled Eritrea in 1987 and settled in Sweden where he obtained Swedish citizenship. After Eritrea gained independence in May 1993, Mr. Isaak returned to work for "Setit", one of country's first independent newspapers.

In 2000, Mr Isaak as well as his wife and three children left Eritrea, as the political conditions deteriorated once again.

He returned alone in 2001 to continue his work as a journalist, advocating in particular the easing of restrictions on the press.

He is the author of a novel, a play and numerous articles which were translated for the first time last year from Tigrinya into Swedish and which were published under the titles "Hope - The Tale of Moses" and "Manna's Love and Other Texts", through a joint initiative of eleven major Swedish publishing houses.

This text was originally published in Swedish in daily Expressen.

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Your comments about this article

11:02 July 5, 2011 by awash
still don't get it why Dawit Isak who's supposed to be naturalized citizen of 'Sweden' is languishing in one of the worst 'prisons' in the world for the last 10yrs provided his years of chronic diabtic problems. Everybody espcially those Eritreans in exile who wire their 2% income to their tyrant back home and the laid-back Swedish authorities are responsible for this henious crime committed on an innocent journalist who has no weapon but his pen. Please stop the double standard and stop assisting tyrants who unturn every stone to jail, kill, harass, intimidate journalists who are discharging their professional responsbilities. It's time to say ENOUGH is ENOUGH!!!
20:11 July 5, 2011 by Clarabow
Ten long years and for nothing more than holding up freedom of the press although in Eritrea this may mean nothing more than 'suggesting' this might be a good idea! The shame for us in the West is that 10 years of daily, inhuman, treatment (since these prisons are not known for upholding human rights) has passed by and no one can say if Mr Isaak is alive or dead and why his release from this injustice has taken so long. Perhaps if enough voices to President I. Afewerki demanding his release were finally raised then Mr. Isaak may yet be saved. I pray it is not too late.
22:44 July 5, 2011 by Cage
I am curious to know how many journalists/writers worldwide are held in foreign prisons? I think Sweden must do much more to free this man. I do not understand why other foreign governments are not being called upon by Sweden to join hands with Sweden and force Eritrea to handle this case appropriately.
14:17 July 6, 2011 by prince T
He has served 10years in prison. What has he really done to deseve this? Is it a life imprisonment crime. I am sure this cannot be a Uk or US journalist, he would have been freed one way or the other.
20:31 July 6, 2011 by Qassim
Having read a little bit about Diwit Isaa I learnt that he became a Swedish citizen in 1992. However, he left Sweden to Eritrea - probably he was an Eritrean patriot who could not live away from home. I don't fully understand if he is still a Swedish citizen as there are some legal formalities in the Swedish judicial system where voluntary returnees are not considered Swedish citizen anymore. May be the guy is suffering because of this migrationsverket thing!

If a Swedish citizen is imprisoned in any country around the world. In fact, there are always attempts being made by the Swedish embassies in the respective countries. Apparently, they did help the release of many other Swedish citizens including that alleged terrorist captured in Denmark last year with a bunch of explosives - who was previously released from an Afghan prison with the help of current regime. I don't really get it what is wrong with this guy's case! Are there other interests over him or may be negligence from the Swedish government (s) is keeping him in prison for 10 long f… years?
22:21 July 6, 2011 by Freedom4all
Eritrea is ruled by a buch of killers.Eritrea has no election or anything.Eritreans outside Eritrea have to pay money to the killers that are on power.If the y don't pay the killers.....Eritreans are no allowed to enter Eritrea and visit their families.The sad thing is Eritreans that live in UK,or Canda,or US or Sweden don't like to talk about the leaders of Eritrea who hold every humn beings and thing hostage in that country.
16:13 July 7, 2011 by Global Macro
Habeas corpus is not a "human right." In many countries it is a right that is written into the constitution as one of many restraints on the power of the government. Be careful about calling something a "human right." This term has been much abused term and poorly defined. Frequently governments will turn this principle on its head and instead create a restraint on the citizens rather than on the government.

A good example is what the EU and others have termed "hate crimes." This has been employed frequently and vigorously to stifle public debate and free speech of the citizens. Instead of restraining the power of the government, this so-called "human right" has been used by the government to criminalize spoken opinions what run contrary to positions of the governments.
00:01 July 8, 2011 by free_in_sweden
As an Eritrean refugee in Sweden, I can assure you that the supreme court is filled with incompetent personnel and those who are, can't do anything or else they would join Dawit Isak and the other thousands of Eritreans who are behind the bars for many years.

The Eritrean president, DIA (Dictator Isias Afwerki) is known for his arrogance and defiance. Thus, he would only comply with 'pressure' and not diplomacy or rule of law (such things never exist in his dictionary).

For a better understanding, please watch the interview the DIA did with the Swedish kanal 4 and how arrogantly he talking about Dawit Isak and mentioning the relation with Sweden.


This man don't understand 'diplomacy' nor the 'rule of law'

Thus, a formal legal request put before the Supreme Court of Eritrea is simply has no effect, unless followed by serious practical measures against this atrocious dictator.
14:23 July 8, 2011 by kynan
Isias is a dictator but unlike Males of Ethiopia he is an isolated man and don't get any support from the western nations.
17:11 July 8, 2011 by dolphin, the
It is very sad to hear that any one, let alone a journalist trying to serve the public is held in total incommunicado this long. But I still ask my self why Dawit maintained his Eritrean citizenship. Migrationsverket clearly informs the cosequences of dual nationality for those applying for Swedish citizenship.


''...There are certain countries which do not accept dual citizenship. In these countries, often no allowance is made for a prisoner also being a Swedish citizen; instead they count them only as a citizen in the current country. This means that Sweden has limited capacity to help such people if they get into trouble.....
21:54 July 8, 2011 by Clarabow
Dear Friends,

It really doesn't matter - dual nationality - citizenship - what matters is "if you save a life you save the world". But 'habeas corpus' does matter as it is a legal process under the constiutution of that country. And so does public opinion. If enough people wrote to the President, well who knows what may be the outcome.
18:42 July 15, 2011 by canuk
whats sad to see is that this story has been on the front page for the last year, are there not more important things to report upon?
08:36 July 21, 2011 by Munir Ahmed
Eritrea has a Supreme Court?

More comedy.
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