Amnesty International
Nov 30 2004

AMNESTY INTERNATIONAL

Public Statement

AI Index: AFR 24/017/2004 (Public)
News Service No: 308
30 November 2004

Equatorial Guinea: Trial of alleged coup plotters seriously flawed

Eleven foreign nationals and nine Equatorial Guineans were sentenced
to lengthy prison terms and hefty fines in Equatorial Guinea after a
grossly unfair trial ending on 26 November 2004. They were convicted
of (an attempt to commit) crimes against the Head of the State and
against the government. The Equatorial Guineans were tried in
absentia. The lawyers of the foreign defendants have lodged an appeal
to the Supreme Court against the convictions.

Neither the verdict nor the sentences were translated, and the
defendants left court with no knowledge of their fate.

An Amnesty International delegation observed the trial from its
commencement on 23 August 2004, and, in view of serious procedural
flaws and the admission of confessions allegedly extracted under
torture, and deemed it to be unfair.

Nineteen people, including five Equatorial Guineans, six Armenians
and eight South Africans were charged with crimes against the Head of
State; crimes against the government; crimes against the peace and
independence of Equatorial Guinea; possession and storage of arms and
ammunition; treason; possession of explosives; and terrorism, for
which the prosecution had demanded the death penalty for South
African Nick du Toit and prison sentences ranging from 26 to 86 years
for his co-defendants.

No evidence was presented in court to sustain the charges against the
accused other than their statements, which the defendants said had
been extracted under torture. However, defendants’ protestations to
this effect were ignored by the bench. No court can ignore
allegations as serious as these. They are sufficient grounds for a
trial to be suspended and an investigation to be instituted. The
statements were presented in Spanish and without adequate translation
into languages of the defendants, none of whom spoke Spanish. On at
least two occasions when the defence counsel attempted to raise the
issue of torture it was ruled inadmissible by the bench.

Other items presented as evidence included commercial contracts and
lists of telephone numbers called by some of the defendants in
February 2004, shortly before they were arrested. The prosecution
failed to show how these items constituted proof of any of the
charges. About half a dozen weapons produced in court were not found
in the possession of any of the accused but were presented in court
as examples of what the prosecution claimed the defendants intended
to buy in Zimbabwe.
Throughout the trial, and without any hindrance from the judges, the
foreign defendants were referred to as “mercenaries” or “dogs of
war”. They were brought to court and were crossed-examined handcuffed
and shackled. This constituted cruel, degrading and inhumane
treatment.
A total of 15 foreign nationals had been arrested on 8 March 2004 in
Malabo. Their arrest followed the arrest of 70 people, mainly South
Africans, in Zimbabwe the day before. Gerhardt Merz, a German
national, died in custody in Black Beach prison in Malabo nine days
later. The authorities claimed that he died of cerebral malaria but
two of the defendants insisted in court that he had died in front of
them as a result of torture. The five Equatorial Guineans were
arrested subsequently.

The organization is deeply concerned that, from the time of their
arrest in March 2004, the fundamental rights of the accused were
routinely violated. In the particular case of Nick du Toit, the
alleged leader of the “mercenaries” in the Equatorial Guinean capital
of Malabo, the authorities regularly exposed him to the international
media and to interrogation by foreign lawyers and security officers.
As a consequence, his rights to remain silent, and to the presumption
of innocence until proven guilty, were severely curtailed. All
defendants were held incommunicado, handcuffed and shackled 24 hours
a day. They did not receive an adequate diet, and only rarely
received medical treatment for the many ailments that afflicted them
in prison. These conditions, together with the minimal access by
family members permitted while in Equatorial Guinea, had a negative
impact on the physical and mental health of the defendants.

At the request of the prosecution the trial was adjourned
indefinitely at the end of August, ostensibly in the light of
emerging evidence deemed vital to the case. However, when the trial
resumed in November, no new evidence was presented in court. Instead,
new names were added to the list of accused, including that of Severo
Moto, a political opponent exiled in Madrid, eight members of his
“government in exile” who were tried in absentia, and several British
and South African businessmen.

Amnesty International welcomes the fact that the court did not impose
the death penalty. It also welcomes the acquittal of three Equatorial
Guinean and three South African defendants. Although the accused
received shorter custodial sentences than those sought by the
prosecution,
Nick du Toit was sentenced to a total of 34 years in prison while his
South African co-defendants were given 17 years’ prison sentences. Of
the Armenian co-defendants one received a 24-years prison term and
the remaining six received 14-years terms. In contrast, two
Equatorial Guineans for whom the prosecution had asked for prison
terms of 62 and 42 years respectively, each received a prison
sentence of 16 months and one day for imprudencia temeraria (reckless
behaviour). Severo Moto was sentenced to 63 years’ imprisonment while
the members of his government were each given prison terms of 52
years.

Amnesty International is concerned about the following unfair
procedures prior to the trial:

the defendants were arrested without a warrant, and were not promptly
informed of the charges against them in a language that they
understood, as prescribed by law;
they did not have access to their defence lawyers until two days
before the start of the trial. In addition, the defence did not have
sufficient time to prepare the defence. Furthermore, they were not
served with the prosecution’s evidence against their clients;
all the accused stated in court that their statements were taken not
by the juez de instruccion (investigating judge) as prescribed by
Equatorial Guinean law, but by the Attorney General, who was
prosecuting the case in court and who, under the law, has no legal
role in the interrogation stage of the proceedings;
the defendants were required to sign statements in Spanish without
the assistance of qualified interpreters. The initial statements of
the South Africans were translated by one of the Equatorial Guinean
co-defendants who, according to his own statement in court, also
provided evidence against them. In court, interpretation for the
South African defendants was performed by the Attorney General’s
official interpreter, which begs the question of his independence and
impartiality. Amnesty International delegates observed that vital
pieces of information, such as defendants’ statements about torture,
were not translated, while others were distorted;
one South African of Angolan origin spoke only Portuguese. The court
was not aware of this crucial fact and there was no official
interpreter for him. This raises serious concerns regarding the
circumstances in which he signed his statement.

Amnesty International calls for the allegations of torture and
misconduct by the prosecution authorities to be investigated as a
matter of urgency, and for those suspected of involvement in either
or both of these allegations to be brought to justice.

The organization urges the authorities to remove immediately the
handcuffs and shackles of these prisoners. They should also grant
them immediate access to their lawyers and families, and provide them
with adequate food and medical treatment.