After 3560+ days of imprisonment without official charge or trial, a formal legal request has finally been put before the Supreme Court of Eritrea: Show us Dawit Isaak! Tell us where he is, let us see him with our own eyes, let him be examined by a doctor and let him have contact with his family. Then let him defend himself and examine if it is legal that the authorities continue to imprison him, in strict isolation, without access to the outside world. That is at the heart of the request - about seventy pages long - which has now been filed with Eritrea's Supreme Court. It is writ of "Habeas Corpus", practically unknown in Swedish law but common practice 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 means "You shall have the body" 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". Every single one of the claims raised in the 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. So quiet, in fact that it has yielded no measurable sign of success. The unwillingness of government officials to adjust their strategy in the face of continued failure is particularly 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: "De inte bara hade kunnat, de borde ha gjort det sedan länge, ...kort efter det att Dawit anhölls."
Attorneys Percy Bratt and Prisca Orsonneaux, 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 Orsonneaux, a lawyer at the Paris Bar and member 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. "
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 [legal] 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 cutting official aid payments to Eritrea.
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 family 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 his brother Esayas. "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."
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.