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INT-LAW  April 2009, Week 1

INT-LAW April 2009, Week 1

Subject:

Re: Urgent request for UN WGAD documents

From:

Mike Yared <[log in to unmask]>

Reply-To:

International Law Librarians List (Int-Law)

Date:

Fri, 3 Apr 2009 05:59:14 -0700

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (586 lines)

from
http://www.websitetoolbox.com/tool/post/redsea1/vpost?id=2630523&trail=100#70

OPINION No. 23/2007 (ERITREA)
 
Communication addressed to the Government on 16
February 2007 Concerning Messrs. Petros Solomon, Ogbe
Abraha, Haile Woldensae, Mahmoud Sherifo, Berhane
Ghebregzabher, Salih Idris Kekya, Hamed Himed,
Stefanos Syuom, Germano Nati, Berraki Ghebreslasse and
Ms. Aster Feshazion.

The State is a Party to the International Covenant on
Civil and Political Rights 

1. The Working Group on Arbitrary Detention was
established by resolution 1991/42 of the former
Commission on Human Rights. Its mandate was clarified
and extended by Commission’s resolution 1997/50. The
Human Rights Council assumed the Working Group’s
mandate by its decision 2006/102 and extended it for a
further three-year period by resolution 6/4 of 28
September 2007. Acting in accordance with its methods
of work, the Working Group forwarded the
above-mentioned communication to the Government. 

2. The Working Group conveys its appreciation to the
Government for having provided it with information
concerning the allegations of the source. 

3. The Working Group regards deprivation of liberty as
arbitrary in the following cases: 

I. When it is clearly impossible to invoke any legal
basis justifying the deprivation of liberty (as when a
person is kept in detention after the completion of
his sentence or despite an amnesty law applicable to
him) (category I); 

II. When the deprivation of liberty results from the
exercise of the rights or freedoms guaranteed by
articles 7, 13, 14, 18, 19, 20 and 21 of the Universal
Declaration of Human Rights and, insofar as States
parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the International Covenant on Civil
and Political Rights (category II); 

III. When the total or partial non-observance of the
international norms relating to the right to a fair
trial, established in the Universal Declaration of
Human Rights and in the relevant international
instruments accepted by the States concerned, is of
such gravity as to give the deprivation of liberty an
arbitrary character (category III). 

4. In the light of the allegations made the Working
Group welcomes the cooperation of the Government. The
Working Group transmitted the reply provided by the
Government to the source and received its comments.
The Working Group believes that it is in a position to
render an opinion on the facts and circumstances of
the cases, in the context of the allegations made and
the response of the Government thereto, as well as the
observations by the source. 

5. According to the information submitted to the
Working Group: Messrs. Petros Solomon, Ogbe Abraha,
Haile Woldensae, Mahmoud Sherifo, Berhane
Ghebregzabher, Salih Idris Kekya, Hamed Himed,
Stefanos Syuom, Germano Nati, Berraki Ghebreslasse and
Ms. Aster Feshazion are former Eritrean Government
officials and are part of a group of 15 senior
officials of the ruling People’s Front for Democracy
and Justice (PFDJ). The Government impute them of
having been openly critical of the Government policies
and having committed a crime against the State’s
security and sovereignty. In May 2001, they wrote an
open letter to ruling party members criticizing the
Government for “acting in an illegal and
unconstitutional manner” and calling all PFDJ members
and to Eritrean people in general, to express their
opinions through legal and democratic means. 

6. It has been alleged that these persons have not
been given access to legal assistance or authorization
to receive visits from their relatives. None of them
has been brought before a judicial court or charged
with any criminal offence. Moreover, a request for
habeas corpus was made to the Minister of Justice on
26 November 2001 pursuant to Article 17 of the
Eritrean Constitution, asking, inter alia, to reveal
the place of detention of these 11 persons; to either
charge and bring them before a court or release them;
to guarantee that none of them would be ill treated as
well as their immediate access to lawyers of their
choice, their families and adequate medical care. No
response was obtained from the Government. 

7. On the same date, an urgent communication was
submitted to the Special Rapporteur of the African
Commission on Human and Peoples’ Rights on Prisons and
Conditions of Detention in Africa, asking him to
request the Government to reveal the whereabouts of
the 11 detainees and urging that none of them be
ill-treated. However, this action has allegedly not
produced any results, either. 

. 



8. According to the source, these 11 persons are being
kept in incommunicado detention without specific
charges laid against them since their arrest in
September 2001. They have furthermore not been tried
yet or convicted of any crime. The detainees have not
had access to defense lawyers or to their families,
either. 

. 



9. Consequently, the source argues that the detention
of these 11 persons is arbitrary as applicable
international norms relating to the right to a fair
trial spelled out in the International Covenant on
Civil and Political Rights, to which Eritrea is a
State party, are not observed. 

. 



10. The Government, in its comments of 29 August 2007
to the communication sent by the Working Group, notes
that “the 11 persons are detained for conspiracy and
attempt to overthrow the legal government in violation
of relevant UN resolutions and international law; for
colluding with hostile foreign powers with a view to
compromising the sovereignty of the country; and for
undermining Eritrean national security and the general
welfare of its people”, which constitute violations of
the Transitional Penal Code of Eritrea. The Government
invokes articles 259, 260 and 261 of the Code, which
are related to crimes against the State. 

. 



11. Regarding the allegations that the 11 persons have
been detained for “peaceful expression of their
opinions”, the Government emphasizes that they are
factually unfounded and perpetrated by involved groups
to cover up “grave crimes committed against the
national security of the country at war time”. The
Government stresses that expressing one’s opinions or
belief is not considered a crime in Eritrea. 

. 



12. The Government also refers to the discussion held
by the National Assembly at its 14th Session from 29
January to 2 February 2002, about the report
concerning the nature of the acts committed by the
persons concerned. It concluded that these people had
perpetrated “serious crimes against the nation and its
people” and “mandated the Government to handle the
matter appropriately and bring it to its logical end”.


. 



13. Referring to the absence of a speedy and fair
trial, the Government explains that the persons are
accused of “conspiracy with hostile foreign powers at
a time of war” and that the evidence gathered so far
cannot be made public and forwarded to judicial
proceedings since the war situation is not yet over.
In the view of the Government, taking the persons to
court under the circumstances, which does not allow
for the declassification of crucial evidence, could
seriously compromise a fair trial. In addition, there
exist co-offenders who are not yet apprehended due to
the situation. The Government also considers that the
concern about legal representation is premature since
the charges have not yet been defined and submitted to
the accused. 

. 



14. Concerning the detention conditions, the
Government stresses that making the place of detention
public and allowing relatives to visit detainees is
not possible because of the “particular time”. The
vulnerability of the country, whose sovereign
territory is considered by the Government to be still
under occupation, justifies the “non-fulfillment of
some elements of due process of law for the
detainees”. Nevertheless, the Government states that
they are being treated humanely and have access to
medical treatment. 

. 



15. On 11 September 2007, the source has commented on
the reply of the Government. It notes that the
allegations of conspiracy are not founded and already
used before the African Commission on Human and
Peoples’ Rights (ACHPR) on 20 May 2002. It also adds
that the letter to the members of the PFDJ was a
reaction to the efforts to convene a meeting of the
Central and National Council and its content is public
and well known. 

. 



16. Concerning the report of 2002 which led the
National Assembly to the conclusion that the detainees
have committed crimes, the source notes that State’s
political organs are not competent to establish guilt.
It also invokes a letter of 6 February 2003 to the
ACHPR in which the Government recognized the
separation of powers in the country and the exclusive
competence of the judiciary regarding issues like
habeas corpus. However, the detainees have never been
brought before a judge and no formal charges have been
formulated against them. 

. 



17. For the source, the reference to a wartime
situation to justify the lack of trial and other
judicial guarantees is not relevant. It adds that even
the Government, in its communication to the ACHPR, has
never invoked the state of war as a justification for
the prolonged incommunicado detention. Furthermore, a
peace agreement was signed between Eritrea and
Ethiopia in June 2000 and the sporadic border disputes
are not considered as an armed conflict, an assessment
which is also supported by the United Nations (UN
Security Council Resolution 1767 of 30 July 2007). 

. 



18. Regarding the state of public emergency and the
conditions imposed by Article 4 of the International
Covenant on Civil and Political Rights upon countries
which proclaim such state, the source notes that
Eritrean government has “declined both to officially
proclaim a state of public emergency and to inform the
other States Parties that it derogated from its human
rights obligations. Furthermore, a “derogative measure
leading to incommunicado detention for six years can
impossibly be seen as strictly required”, and
infringements of the detainees’ human rights are not
justified by the need for confidentiality or the
existence of other co-offenders in the country. 

. 



19. The source notes that the detainees have been held
incommunicado since September 2001 at an unknown place
and without any contact. However, incommunicado
detention is considered by the Human Rights Committee
as an inhuman treatment and a six year incommunicado
detention cannot be justified in any case. Concerning
the charges, the source considers that the fact that
they have not yet been formulated amounts to a
flagrant human rights violation as much as the denial
of access to a lawyer. 

. 



20. The source also considers that, despite the pledge
made by the Government in 2002, the detainees’ human
rights have been violated during the past six years.
The Government also disregarded the findings of the
ACHPR of November 2003, which held that the Government
has violated human rights and asked for the immediate
release of and compensation for the 11 detainees. 

. 



21. Regarding the Government’s statement that the
detainees are being humanely treated and have access
to medical treatment, the source concludes that the
main issue in this case is to ascertain that the
detainees are still alive and well. 

. 



22. On 9 April 2002, a communication was sent to the
ACHPR concerning these11 detainees. The African
Commission, at its 34th Ordinary Session from 6th to
20th November 2003 in Banjul, The Gambia, examined the
communication and found the State of Eritrea in
violation of Articles 2, 6, 7(1) and 9(2) of the
African Charter on Human and Peoples’ Rights, but also
of international human rights standards and norms. The
African Commission also notes that the incommunicado
detention is a “gross human rights violation that can
lead to other violations” and the “prolonged
incommunicado detention and/or solitary confinement
could be held to be a form of cruel, inhuman or
degrading punishment and treatment” and considers that
“all detentions must be subject to basic human rights
standards”. The whereabouts of detainees should be
known and they must have prompt access to a lawyer and
their families, as well as been promptly brought
before a judge, and have proper detention conditions.
The African Commission has also urged the State of
Eritrea to order the immediate release of the 11
detainees and recommended the compensation of these
persons. 

. 



23. The Working Group observes at the outset that in
its reply, the Government confirms the facts alleged
by the source, facts which constitute a serious
violation of human rights entrenched in the
International Covenant on Civil and Political Rights,
and in the African Charter of Human and Peoples’
Rights as it has been established by the African
Commission on Human and Peoples’ Rights in its
decision 250/2002 taken during its 34th session held
from 6 to 20 November 2003. Furthermore, the Working
Group has already adopted Opinion 3/2002 regarding the
same case and the same individuals, in which it
considered the deprivation of liberty of these 11
persons as being arbitrary. 

. 



24. The Working Group notes that no new elements have
been received regarding this case since then except
for the decision of the African Commission on Human
and Peoples’ Rights to which it has already referred
to above. Consequently upon the above mentioned
Opinion rendered on 17 June 2002, the Working Group
has requested the Government of Eritrea to take the
necessary steps to remedy the situation of these 11
individuals and to bring it into conformity with the
standards and principles set forth in the
International Covenant on Civil and Political Rights.
However, the Government, in its reply, does not make
any reference to the recommendations issued in Opinion
3/2002 and clearly confirms that it has not taken any
measures to remedy the situation of Messrs. Petros
Solomon, Ogbe Abraha, Haile Woldensae, Mahmoud
Sherifo, Berhane Ghebregzabher, Salih Idris Kekya,
Hamed Himed, Stefanos Syuom, Germano Nati, Berraki
Ghebreslasse and Ms. Aster Feshazion. 

. 



25. The Working Group further notes that the
Government has neither formally proclaimed a state of
emergency nor informed the other States Parties of the
International Covenant on Civil and Political Rights
of any provisions from which it has derogated as
required by article 4 of the Covenant. Even if the
Government had, any person deprived of his liberty
would still have to be presented before a competent
judicial authority and informed in detail about the
charges against him1. 

. 



26. The deprivation of liberty suffered by these 11
individuals since September 2001 at a secret location,
during which they have had no access to legal counsel
or contact with their families, have not been
presented before a judicial authority, and have not
been formally charged, seriously contravenes article 9
of the International Covenant on Civil and Political
Rights. 

. 



27. The Government still attributes to these 11
persons to having committed crimes against the
sovereignty, the safety and the well-being of the
State of Eritrea. However, it does not define exact
criminal charges against them that relate to actions,
which have been described by the source of consisting
of written declarations urging the population of
Eritrea to express criticism in a democratic manner
against the performance of the Government. Their
detention solely on these grounds, therefore,
constitutes a clear violation of the rights of these
11 persons to exercise their right to freedom of
opinion and expression as recognized by article 19 of
the International Covenant of Civil and Political
Rights. 


1 Cf. Human Rights Committee, General Comments No. 29
(CCPR/C/21/Rev.1/Add.11), paragraph 16.



. 

28. The Working Group notes that the obvious
unwillingness of the Government to comply with the
Working Group’s Opinion No. 3/2002 and recommendations
to put an end to the detention of Mr. Petros Solomon
and the ten others is particularly worrying. 

. 



29. In the light of the foregoing, the Working Group
renders the following opinion: 



. 

The deprivation of liberty of Messrs. Petros Solomon,
Ogbe Abraha, Haile Woldensae, Mahmoud Sherifo, Berhane
Ghebregzabher, Salih Idris Kekya, Hamed Himed,
Stefanos Syuom, Germano Nati, Berraki Ghebreslasse and
Ms. Aster Feshazion is arbitrary, being in
contravention of articles 9 and 19 of the
International Covenant on Civil and Political Rights,
to which Eritrea is a party, and falls within
categories I and II of the categories applicable to
the consideration of cases submitted to the Working
Group. 



. 

30. Consequent upon the Opinion rendered the Working
Group repeatedly requests the Government to remedy the
situation and to bring it into conformity with the
provisions of the International Covenant on Civil and
Political Rights. The Working Group believes that
under the circumstances the adequate remedy would be
the immediate release of Mr. Petros Solomon and the
ten others. 


Adopted on 27 November 2007 

--- Betty Jean Haugen <[log in to unmask]> wrote:

> Dear colleagues,
> 
> One of our researchers is desparately seeking the
> following opinion of 
> the UN Working Group on Arbitrary Detention:
> Opinion No. 23/2007 (Eritrea), adopted 27 november
> 2007.
> 
> As far as I understand, the only reference he has to
> this opinion is  from
> unofficial sources. He needs to have the official,
> primary source, to be
> sure that the opinion is bona fide.
> 
> He also needs all other documents connected to this
> opinion, such as 
> communications with the Eritrean government etc.
> 
> An unofficial source for this opinion is the
> following, which also  refers
> to such background documents:
>
http://www.awate.com/portal/content/view/4777/6/#three
> 
> I started with the most likely source: the WGAD
> site, and have also
> searched the Charter-based database, ODS,  UN-I-QUE,
> UNBIS and the country
> page for Eritrea on the OHCHR, but have not been 
> successful in finding
> this opinion.
> 
> The most recent document with a collection of
> opinions from the WGAD I 
> have been able to retrieve is A/HRC/7/4/Add.1 of 16
> Jan 2008, which 
> includes opinions from the 47th og 48th session, the
> most recent being 
> opinion no. 13/2007 of 11 May 2007.
> 
> Dos anyone know whether the next collection of
> opinions is forthcoming,
> and soon to be posted?  Or even better, whether all
> opinions are posted as
> separate documents on ODS and/or on any other
> official UN site, and if so,
> what the trick is to finding them?
> 
> We would be most grateful if you could assist us in
> locating these 
> documents, either by sending us as links, or by
> instructing us as to how
> we could retrieve them ourselves, e.g. on the
> eminent  OHCHR website
> (where we usually are successful in finding what we
> need)!
> 
> Please send any and all tips to:
> [log in to unmask]
> and/or directly to the researcher:
> [log in to unmask]
> 
> Kind regards,
> Betty Haugen
> Head Librarian
> Norwegian Centre for Human Rights
>
***********************************************************
> NB! New visiting address:
> Cort Adelersgate 30 - Vika
>
***********************************************************
> P.O. Box 6706 St. Olavs plass, NO-0130 Oslo
> tel: (+47) 22 84 20 28
> fax: (+47) 22 84 20 02
> www.humanrights.uio.no
> 
>
*******************************************************************
> Int-Law - International Law Librarians List:  Post
> messages to [log in to unmask]
> To unsubscribe send a message with  unsubscribe
> int-law  as the text of the message to
> [log in to unmask]
> An archive of postings are located at
> http://listserver.ciesin.columbia.edu/int-law.html.
> **DISCLAIMER: The opinions expressed on this list
> are those of the authors and do not necessarily
> reflect the opinions of CIESIN, its staff, or
> CIESIN's sponsors.
> 



      

*******************************************************************
Int-Law - International Law Librarians List:  Post messages to [log in to unmask]
To unsubscribe send a message with  unsubscribe int-law  as the text of the message to [log in to unmask]
An archive of postings are located at http://listserver.ciesin.columbia.edu/int-law.html.
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January 2012, Week 2
January 2012, Week 1
December 2011, Week 5
December 2011, Week 4
December 2011, Week 3
December 2011, Week 2
December 2011, Week 1
November 2011, Week 5
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November 2011, Week 1
October 2011, Week 5
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April 2011, Week 5
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April 2011, Week 3
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April 2011, Week 1
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March 2011, Week 3
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March 2011, Week 1
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February 2011, Week 3
February 2011, Week 2
February 2011, Week 1
January 2011, Week 5
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January 2011, Week 3
January 2011, Week 2
January 2011, Week 1
December 2010, Week 5
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November 2010, Week 1
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October 2010, Week 3
October 2010, Week 2
October 2010, Week 1
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September 2010, Week 4
September 2010, Week 3
September 2010, Week 2
September 2010, Week 1
August 2010, Week 5
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August 2010, Week 3
August 2010, Week 2
August 2010, Week 1
July 2010, Week 5
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July 2010, Week 3
July 2010, Week 2
July 2010, Week 1
June 2010, Week 5
June 2010, Week 4
June 2010, Week 3
June 2010, Week 2
June 2010, Week 1
May 2010, Week 5
May 2010, Week 4
May 2010, Week 3
May 2010, Week 2
May 2010, Week 1
April 2010, Week 5
April 2010, Week 4
April 2010, Week 3
April 2010, Week 2
April 2010, Week 1
March 2010, Week 5
March 2010, Week 4
March 2010, Week 3
March 2010, Week 2
March 2010, Week 1
February 2010, Week 4
February 2010, Week 3
February 2010, Week 2
February 2010, Week 1
January 2010, Week 5
January 2010, Week 4
January 2010, Week 3
January 2010, Week 2
January 2010, Week 1
December 2009, Week 5
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December 2009, Week 1
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October 2009, Week 3
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October 2009, Week 1
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August 2009, Week 1
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July 2009, Week 3
July 2009, Week 2
July 2009, Week 1
June 2009, Week 5
June 2009, Week 4
June 2009, Week 3
June 2009, Week 2
June 2009, Week 1
May 2009, Week 5
May 2009, Week 4
May 2009, Week 3
May 2009, Week 2
May 2009, Week 1
April 2009, Week 5
April 2009, Week 4
April 2009, Week 3
April 2009, Week 2
April 2009, Week 1
March 2009, Week 5
March 2009, Week 4
March 2009, Week 3
March 2009, Week 2
March 2009, Week 1
February 2009, Week 4
February 2009, Week 3
February 2009, Week 2
February 2009, Week 1
January 2009, Week 5
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January 2009, Week 3
January 2009, Week 2
January 2009, Week 1
December 2008, Week 5
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December 2008, Week 3
December 2008, Week 2
December 2008, Week 1
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November 2008, Week 4
November 2008, Week 3
November 2008, Week 2
November 2008, Week 1
October 2008, Week 5
October 2008, Week 4
October 2008, Week 3
October 2008, Week 2
October 2008, Week 1
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September 2008, Week 3
September 2008, Week 2
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August 2008, Week 3
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July 2008, Week 3
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July 2008, Week 1
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June 2008, Week 2
June 2008, Week 1
May 2008, Week 5
May 2008, Week 4
May 2008, Week 3
May 2008, Week 2
May 2008, Week 1
April 2008, Week 5
April 2008, Week 4
April 2008, Week 3
April 2008, Week 2
April 2008, Week 1
March 2008, Week 5
March 2008, Week 4
March 2008, Week 3
March 2008, Week 2
March 2008, Week 1
February 2008, Week 5
February 2008, Week 4
February 2008, Week 3
February 2008, Week 2
February 2008, Week 1
January 2008, Week 5
January 2008, Week 4
January 2008, Week 3
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January 2008, Week 1
December 2007, Week 4
December 2007, Week 3
December 2007, Week 2
December 2007, Week 1
November 2007, Week 5
November 2007, Week 4
November 2007, Week 3
November 2007, Week 2
November 2007, Week 1
October 2007, Week 5
October 2007, Week 4
October 2007, Week 3
October 2007, Week 2
October 2007, Week 1
September 2007, Week 4
September 2007, Week 3
September 2007, Week 2
September 2007, Week 1
August 2007, Week 5
August 2007, Week 4
August 2007, Week 3
August 2007, Week 2
August 2007, Week 1
July 2007, Week 5
July 2007, Week 4
July 2007, Week 3
July 2007, Week 2
July 2007, Week 1
June 2007, Week 5
June 2007, Week 4
June 2007, Week 3
June 2007, Week 2
June 2007, Week 1
May 2007, Week 5
May 2007, Week 4
May 2007, Week 3
May 2007, Week 2
May 2007, Week 1
April 2007, Week 5
April 2007, Week 4
April 2007, Week 3
April 2007, Week 2
April 2007, Week 1
March 2007, Week 5
March 2007, Week 4
March 2007, Week 3
March 2007, Week 2
March 2007, Week 1
February 2007, Week 4
February 2007, Week 3
February 2007, Week 2
February 2007, Week 1
January 2007, Week 5
January 2007, Week 4
January 2007, Week 3
January 2007, Week 2
January 2007, Week 1
December 2006, Week 4
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December 2006, Week 1
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November 2006, Week 4
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November 2006, Week 2
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October 2006, Week 3
October 2006, Week 2
October 2006, Week 1
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September 2006, Week 3
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May 2006, Week 2
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April 2006, Week 1
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