OHCHR (WGAD): While addressing the issue of alleged arbitrary detention of Ms. Marie-Emmanuelle Verhoeven in Tihar Jail, New Delhi, from the period of February 2015 till July 2016 and her claim for compensation [IPA No 15 of 2018], which is currently pending in the Delhi High Court having been filed by Ms. Verhoeven as a Civil Suit on 24 July 2018 against the Union of India, the Vice-Chair of the WGAD, Miriam Estrada-Castillo observed that,
“Without prejudging the accuracy of these allegations, we express concern that the detention of Ms. Verhoeven, if confirmed, may have been arbitrary, in violation of Article 9 of the Universal Declaration of Human Rights and Article 9 of the International Covenant on Civil and Political Rights”
Pertinent Facts: Marie-Emmanuelle Verhoeven is a French citizen who spent a part of her life in Chile from 1985 to 1995. During her stay in Chile, Verhoeven was a member of the Latin American Economic and Social Committee and later joined the United Nations Economic Commission for Latin America and the Caribbean [UNECLAC] or CEPAL [Spain] in Chile. She also participated in Special Human Rights Missions.
Ms. Verhoeven had been visiting India for spiritual reasons in the past. On 16th February 2015, she entered India from Nepal based on a valid visa issued by the Embassy of India in France. She was arrested in Uttar Pradesh on 16th February 2015 because of an Interpol Red Corner Notice dated 27th January 2014 at the request of the Chilean Government and was brought to Delhi on February 21, 2015. This Red Corner Notice dated 27th January 2014 formed the subject matter of a previous Extradition Request made by Chile to Germany. By its Judgment of 6 June 2014, the Hanseatic Higher Regional Court at Hamburg, Germany had declared the Extradition Request of Chile as illegal and set Ms. Verhoeven free.
Legal Trajectory: By an order dated February 24, 2015, the Additional Chief Metropolitan Magistrate, [ACMM] Patiala House District Court, New Delhi, directed the provisional arrest of Ms. Verhoeven under Section 34B of the Extradition Act, 1962. She was remanded to judicial custody from time to time and was detained at Tihar Jail, New Delhi from February 2015 till July 2016. At the time of her provisional arrest on 24 February 2015, there was no extradition treaty between India and Chile.
The matter reached Delhi High Court in March 2015. A Gazette of India Notification No. 267, Part II, dated 29th April 2015 and the Order dated 28th April 2015, were issued by the Government of India recording the Extradition Treaty between the Republic of India and the Republic of Chile. Ms Verhoeven challenged the constitutional validity of this Notification and contended before the Delhi High Court inter alia that this Extradition Treaty [emerging from this Notification] could not be applied retroactively to her while she was still in detention, as this was based on a Treaty between Great Britain and Chile of 1897. She also argued that there was no record of such a treaty in the official archives either in India or in Chile.
On 21st September 2015, the Division Bench of G. Rohini, CJ., and Jayant Nath, J., in Verhoeven, Marie-Emmanuelle v. Union of India and another, 2015 SCC OnLine Del 12166, held that Ms. Verhoeven’s detention was illegal. However, she was not released from the prison on 21 September 2015. The Delhi High Court upheld the constitutional validity of the Extradition Treaty between India and Chile.
Ms. Verhoeven was re-arrested by the ACMM, Patiala House District Court, New Delhi on September 22, 2015 on the basis of the Note Verbale dated 21 September 2015 of the Chilean Embassy in New Delhi
On 29th September 2015, a Habeas Corpus Writ Petition was filed by Ms. Verhoeven in the Supreme Court of India challenging her illegal detention. On 13th October 2015, Ms Verhoeven also challenged [by way of a Special Leave Petition in the Supreme Court of India], the dismissal by the Delhi High Court of her challenge to the Extradition Treaty which had been resuscitated by the Indian Government from 1897 on the basis of the Extradition Treaty between Great Britain and Chile, [when India was under the British Empire], and was retroactively made applicable to her by the Indian Government while she was already in detention.
In December 2015, during the illegal detention of Ms Verhoeven on the basis of the Note Verbale dated 21 September 2015 of the Chilean Embassy in New Delhi, the Indian Government filed a second extradition proceeding against Ms Verhoeven, based on the India/Chile Treaty.
On 28th April 2016, the Division Bench of the Supreme Court of India comprising Madan B. Lokur and N.V. Ramana, JJ., in Verhoeven, Marie-Emmanuelle v. Union of India, (2016) 6 SCC 456 , held that a binding extradition treaty between India and Chile existed and upheld Ms.Verhoeven’s arrest and detention on the basis of the Note Verbale of the Chilean Embassy in New Delhi, dated September 21, 2015. Her Habeas Corpus Writ Petition was dismissed by the Supreme Court of India by this Judgment.
On 2nd July 2016, Ms Verhoeven was released on bail by the ACMM, Patiala House District Court, New Delhi
On July 26, 2017, the ACMM, Patiala House District Court, New Delhi, discharged Ms. Verhoeven, based on the Indian Government’s request to withdraw the Extradition Case and she returned to her homeland in France on 27th July 2017.
Contentions raised by Ms. Verhoeven: Ms. Ramni Taneja, Advocate, representing the aggrieved individual, contended before the WGAD, OHCHR, that the detention of Ms. Verhoeven was illegal and arbitrary in nature. She further raised questions on the disputed existence of an extradition treaty between India and Chile and submitted that the extradition treaty was retroactively applied to the case of her client, which is impermissible in law. She further asserted that Ms. Verhoeven’s re-arrest on September 22, 2015 was based on a Note Verbale dated 21st September 2015 issued by the Embassy of Chile in New Delhi and was therefore without legal foundation.
The contentions also drew attention to the poor condition in the prison cells where Ms. Verhoeven was kept and the lack of medical attention, consular rights etc.
Finally, it was argued that the concerned authorities in India should have abided by Interpol’s request on May 30, 2015 that, it erased all files concerning Ms Verhoeven, which meant that she would have been released immediately. It was thus contended by Counsel that Ms. Verhoeven’s detention was without legal basis.
Observations of the Working Group: While deliberating upon the matter, the WGAD made it clear that their observations are being made “without prejudging the accuracy of the allegations made by Ms. Verhoeven”. The Working Group-
- Expressed its concern over the detention of 17 months stating that, “If confirmed, may have been arbitrary, in violation of Article 9 of the Universal Declaration of Human Rights and article 9 of the International Covenant on Civil and Political Rights. The prohibition of arbitrary deprivation of liberty is part of treaty law, customary international law. It constitutes a jus cogens norm and is fully applicable in all situations”.
Expressed its concern “at the allegations of poor conditions of detention which Ms. Verhoeven was subjected to, of denial of requested medical attention, of denial of consular rights, and abusive restrictions of family contact, which further contravene several important rights to medical care, to consular assistance and to contacts with family, as codified in the Standards Minimum Rules for the Treatment of prisoners, revised in 2015 as the “Mandela Rules”.
With the aforesaid observations, which were issued to the Permanent Mission of India at Geneva by the WGAD on 21st December 2021, clarifications were sought by the WGAD from the Government of India in the form of an Urgent Appeal regarding the allegations raised by Ms. Verhoeven.
On 16th February 2022, the Government of India submitted its response to the Urgent Appeal of the WGAD, OHCHR. On the website of the OHCHR the following is stated therein:
“The Government’s reply is not made public due to its confidential nature.”
[Mandate of WGAD, Ref.: AL IND 22/2021, issued on 21-12-2021]
Government reply is public record and kept confidential only if the officials want to hide whatever they would not want the public to know as it can be material which will expose their incompetence