A/HRC/WGAD/2010/27

GE.12-10987

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its fifty-ninth session, 18–26 November 2010

No. 27/2010 (Syrian Arab Republic)

Communication addressed to the Government on 28 January 2010

Concerning: Haytham al-Maleh

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

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the former Commission on Human Rights. The mandate of the Working Group was

clarified and extended by Commission resolution 1997/50. The Human Rights Council

assumed the Working Group’s mandate by its decision 2006/102, extended it for a further

three-year period in resolution 6/4 of 28 September 2007 and subsequently in resolution

15/18 of 30 September 2010 for a period of three years. Acting in accordance with its

methods of work, the Working Group forwarded to the Government the above-mentioned

communication.

2.

The Working Group regrets that the Government has not provided the requested

information.

3.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

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);

(b)

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);

(c)

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).

United Nations

A/HRC/WGAD/2010/27

General Assembly

Distr. General

24 February 2012

Original: English

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4.

In the light of the allegations made, the Working Group would have welcomed the

cooperation of the Government.

5.

This case concerns Haytham al-Maleh, 79 years old, a lawyer and the former head of

the Human Rights Association in Syria.

6.

In its letter of 28 January 2010, the Working Group provided the Government of the

Syrian Arab Republic with the summary of the case and requested any information which

the Government would wish to provide regarding the allegations. No response has been

received from the Government.

7.

According to the source, Haytham al-Maleh was detained on 14 October 2009 on

charges of “weakening nationalist sentiment” (art. 285 of the Syrian Penal Code),

“conveying within Syria false news” (art. 286) and “slandering governmental body” (art.

376).

8.

In the source’s view, the charges against Mr. Al-Maleh relate to an interview he

gave to the London-based Syrian opposition television channel, Barada TV, and also to the

articles and reports he published over three years about Government corruption and human

right abuses in Syria.

9.

In particular, according to the source, during his interview with Barada TV, Mr. Al-

Maleh spoke of the imprisonment of fellow human rights activists, including the recent case

of prisoner of conscience Muhannad al-Hassani. The source notes that Mr. Al-Maleh had

been one of Muhannad al-Hassani’s defence lawyers.

10.

The source submits that Mr. Al-Maleh also stated in the interview that, although the

Syrian authorities “have at their disposal huge resources in the form of the army,

intelligence, police and arms and all means of oppression, they hide behind laws which

have no logical or legal or just basis” and went on to say that Syrian security forces are able

to “commit crimes with impunity”. He criticized the “state of emergency” laws, in force

since 1964, which are used to curtail freedom of expression and association. He also spoke

about Government corruption and the increasing gap between the rich and poor in the

Syrian Arab Republic.

11.

The interview, according to the source, took place by phone on 12 October 2009 and

the next day, 13 October 2009, an officer from Political Security telephoned Haytham al-

Maleh and told him to report to the Political Security’s branch in Damascus. Haytham al-

Maleh refused to go. He was then arrested on 14 October by State Security and held

incommunicado in a detention centre in the Kafr Sousa area of Damascus. The authorities

refused to acknowledge that they were holding him until they moved him, on 19 October, to

a branch of the Military Police in Qaboun, a district of Damascus, where he met with his

lawyers. The next day, he was brought before the Military General Prosecutor, who read

out the charges against him, and then was returned to detention in the Military Police in

Qaboun. On 3 November, he was brought before a military judge in Damascus who decided

to charge him with the same charges mentioned above.

12.

According to the source, during the questioning by members of the Central

Intelligence and during his hearing before the Military General Prosecutor, Mr. Al-Maleh

was questioned solely about his human rights work and the criticism of the Government

that he had expressed in various interviews and articles. Specifically, he was repeatedly

asked about his phone interview to Barada TV in which he criticized the Syrian authorities’

continued repression of freedom of expression within the country and about an article he

had written regarding his client and fellow human rights defender Muhannad al-Hassani

which was published in various magazines and newspapers. This, in the source’s view,

confirms that his detention results from the exercise of his right to the freedom of

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expression, as guaranteed by article 19 of the International Covenant on Civil and Political

Rights.

13.

The source submits that Mr. Al-Maleh was tried before a military court. Following

this trial, during which he was denied legal counsel, he was sentenced on 4 July 2010 to

three years’ imprisonment.

14.

The source notes that Mr. Al-Maleh holds no military status and was convicted for a

crime which has no military nature: “disseminating false information which could harm the

nation” (art. 287 of the Penal Code). Despite this, he was sentenced to three years’

imprisonment by the country’s Military Tribunal. The proceedings against him were not

conducted in accordance with the Code of Criminal Procedures; instead, the Code of

Military Procedures was applied, which fails to offer many of the guarantees to a fair trial

stipulated in the Covenant and Syrian Code of Criminal Procedures.

15.

The source reports that the appeal lodged by Mr. Al-Maleh’s lawyers following his

sentence on 25 July 2010 was rejected.

16.

The source alleges that the detention of Mr. Al-Maleh is arbitrary because it results

from his exercise of his right to freedom of expression which is in violation of article 19 of

the International Covenant on Civil and Political Rights.

17.

The source also alleges that Mr. Al-Maleh was deprived of his right to a fair trial. It

argues that Mr. Al-Maleh, despite being in no way connected to the military, was tried

before a military court which offers none of the guarantees of independence and

impartiality which are essential to guaranteeing a fair trial in accordance with international

norms.

18.

The source recalls that Mr. Al-Maleh has already been the subject of two joint

urgent appeals by the Special Rapporteur on the promotion and protection of the right to

freedom of opinion and expression and the then Special Representative of the Secretary-

General on the situation of human rights defenders on 23 February 2004; and by the

Chairperson-Rapporteur of the Working Group on Arbitrary Detention, the Special

Rapporteur on the promotion and protection of the right to freedom of opinion and

expression, the Special Rapporteur on the situation of human rights defenders and the

Special Rapporteur on torture and other cruel, inhuman or degrading treatment or

punishment on 21 October 2009. According to the source, from 1980 to 1986, Mr. Al-

Maleh was imprisoned for his work for the Freedom and Human Rights Committee of the

Syrian Lawyers’ Union.

19.

The source notes that Mr. Al-Maleh suffers from diabetes and an overactive thyroid

gland. Both conditions require the regular intake of appropriate medication, a special diet

and medical supervision to ensure that his health remains sound.

20.

The source concludes that the Syrian authorities should either release Mr. Al-Maleh

or give him a fair trial before a competent court.

21.

The Working Group considers it is in a position to provide an opinion on the

deprivation of liberty of Mr. Al-Maleh.

22.

The Working Group considers that Mr. Al-Maleh was arrested and convicted due to

exercise of his right to freedom of expression through publication of articles and reports

critical of the Syrian authorities. The Working Group also noted that he was arrested in

October 2009 immediately after his interview critical of the Syrian authorities to Barada

TV.

23.

The fact that Mr. Al-Maleh was charged with “weakening nationalist sentiment,”

“conveying within Syria false news,” and “slandering governmental body” confirms that

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Mr. Al-Maleh’s arrest and the subsequent conviction were due to his exercise of his right to

freedom of expression.

24.

The Working Group recalls that the holding and expression of opinions, including

those which are not in line with official Government policy, are protected by article 19 of

the International Covenant on Civil and Political Rights. The deprivation of liberty of Mr.

Al-Maleh solely for expression of his opinions, thus, falls within category II of the

categories applicable to the consideration of cases submitted to the Working Group.

25.

Mr. Al-Maleh, despite being a civilian, was tried before a military court and

convicted for the crimes which are not of military nature.

26.

In its annual report to the Human Rights Council (A/HRC/13/30, para. 66), the

Working Group reiterated that the trial of civilians by military tribunals usually has an

adverse effect on the enjoyment of the right to liberty of person, the right to a fair trial, to

appeal against detention and to be tried in public by a legally established, independent,

competent and impartial court, the right to a presumption of innocence, to equality of arms

and to access to evidence, the right to a free and adequate defence, etc.

27.

In the same report, the Working Group noted that the mere fact that a military court

which decides over a person’s liberty is in the hands of judicial authorities, one of whose

most characteristic principles is obedience of superiors, clearly affects the right to security

of person under article 9 of the International Covenant on Civil and Political Rights.

28.

In another of its reports to the Council (E/CN.4/1999/63), the Working Group

expressed the opinion that, if some form of military justice is to continue to exist, it should

be incompetent to try civilians.

29.

In general comments No. 13 on equality before the courts and the right to a fair and

public hearing by an independent court established by law (para. 4) and No. 32 on the right

to equality before courts and tribunals and to a fair trial (para. 22), the Human Rights

Committee warned of the difficulties which military jurisdiction causes for the enjoyment

of human rights and pointed out “that the trial of civilians in military or special courts may

raise serious problems as far as the equitable, impartial and independent administration of

justice is concerned … Trials of civilians by military or special courts should be

exceptional, i.e. limited to cases where the State party can show that resorting to such trials

is necessary and justified by objective and serious reasons, and where with regard to the

specific class of individuals and offences at issue the regular civilian courts are unable to

undertake the trials” (general comment No. 32, para. 22).

30.

Pursuant to principle No. 5 of the Draft Principles Governing the Administration of

Justice through Military Tribunals (E/CN.4/2006/58), military courts should, in principle,

have no jurisdiction to try civilians. In all circumstances, the State shall ensure that civilians

accused of a criminal offence of any nature are tried by civilian courts. Principle No. 8 adds

that “the jurisdiction of military courts should be limited to offences of a strictly military

nature committed by military personnel.”

31.

Therefore, the deprivation of liberty of Mr. Al-Maleh, being in contravention of

articles 9 and 14 of the International Covenant on Civil and Political Rights, falls within

category III of the categories applicable to the consideration of cases submitted to the

Working Group.

32.

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

(a)

The deprivation of liberty of Haytham al-Maleh, being in

contravention of articles 9, 14 and 19 of the International Covenant on Civil and

Political Rights, falls under categories II and III of the categories applicable to the

consideration of cases submitted to the Working Group;

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(b)

Consequent upon the opinion rendered, the Working Group requests the

Government of the Syrian Arab Republic to take necessary steps to bring Haytham al-

Maleh’s situation into conformity with the standards and principles set forth in the

International Covenant on Civil and Political Rights. The Working Group believes that,

taking into account all the circumstances of the case, the adequate remedy would be to

release Haytham al-Maleh and accord him an enforceable right to compensation in

accordance with article 9, paragraph 5, of the International Covenant on Civil and Political

Rights.

[Adopted on 22 November 2010]