A/HRC/WGAD/2015/23

GE.15-20119(E)

*1520119*

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its seventy-third session,

31 August-4 September 2015

Opinion No. 23/2015 concerning Sheikh Ahmed Ali al-Salman

(Bahrain)

1.

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

the Commission on Human Rights, which extended and clarified the Working Group’s

mandate in its resolution 1997/50. The Human Rights Council assumed the mandate in its

decision 1/102 and extended it for a three-year period in its resolution 15/18 of 30

September 2010. The mandate was extended for a further three years in resolution 24/7 of

26 September 2013.

2.

In accordance with its methods of work (A/HRC/30/69), on 18 June 2015 the

Working Group transmitted a communication to the Government of Bahrain concerning

Sheikh Ahmed Ali al-Salman. The Government has not replied to the communication. The

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

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);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

United Nations

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General Assembly

Distr.: General

17 November 2015

Original: English

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(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation,

disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

Submissions

Communication from the source

4.

Sheikh Ahmed Ali al-Salman is a 50-year-old national of Bahrain. He is the

Secretary General of the main opposition movement in Bahrain, which is known as the Al-

Wefaq National Islamic Society, and a key religious figure in the country. In 1994, Sheikh

Ali al-Salman was reportedly arrested, tortured and detained for months without trial and

then deported and forced to live in exile for over 15 years. He has been arrested and

interrogated at least four times since the uprisings that occurred in February 2011 in

Bahrain.

5.

On 28 December 2014, Sheikh Ali al-Salman presented himself to the Criminal

Investigation Directorate of the Ministry of the Interior of Bahrain in response to a

summons that had been delivered to his home address the day before. According to the

source, the summons did not provide any information about the reasons for which Sheikh

Ali al-Salman’s presence was requested. His lawyers were not allowed to accompany him

during the interrogation, and he was held at the Directorate for over 10 hours.

6.

Sheikh Ali al-Salman was arrested and detained the same day by the security forces

of the Ministry of the Interior on the instructions of the Public Prosecution. He was held at

the Criminal Investigation Directorate for the first night of his detention and was

subsequently transferred to the East Riffa Police Station.

7.

The arrest occurred two days after Sheikh Ali al-Salman had been re-elected as the

Secretary General of Al-Wefaq. According to information received, he was targeted by the

authorities on the basis of the public expression of his views and opinions as a political

opposition leader, a Shia Muslim and a religious figure. In his public speeches and

televized interviews, and in the speech delivered at his party’s General Assembly upon re-

election, Sheikh Ali al-Salman reportedly called for the establishment of a democratic

regime and the accountability of the Government before the parliament. He was reported to

have reaffirmed his party’s determination to pursue power in Bahrain through peaceful

means, to achieve the reform demands of the 2011 Arab Spring uprising and to hold those

responsible for human rights violations to account, while also stressing the need for

equality for all in Bahrain, including the ruling family.

8.

On 5 January 2015, Sheikh Ali al-Salman was formally charged. The charges

brought against him under various articles of the Bahrain Penal Code included: (a) inciting

a change of regime by non-peaceful means, which carries a penalty of up to 10 years’

imprisonment; (b) inciting hatred of a segment of society against another, which carries a

penalty of up to 2 years’ imprisonment and/or a fine not exceeding 200 dinars; (c) inciting

others to break the law, which carries a penalty of up to 2 years’ imprisonment and/or a fine

not exceeding 200 dinars; and (d) insulting the Ministry of the Interior, which carries a

penalty of up to 3 years’ imprisonment or payment of a fine.

9.

On 6 January 2015, Sheikh Ali al-Salman’s detention was extended for 15 days.

During that time, he was interrogated by the Public Prosecution. The source claims that

some interrogation sessions lasted for 13 hours and that the interrogation primarily

concerned 18 speeches and one interview delivered between 2012 and 2014. Sheikh Ali al-

Salman had difficulty remembering specific details about the speeches but, according to the

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source, the Public Prosecution refused to provide him with the details on which it based its

interrogation and did not provide his lawyers with copies of the records of the interrogation.

10.

The source attests that Sheikh Ali al-Salman and his legal representatives were not

provided with any meaningful opportunity to examine the evidence on record in the Public

Prosecution file, including the audio or video recordings of his public speeches, televized

interviews and the transcripts thereof, despite requests made by the defence to have access

to this evidence. According to the source, Sheikh Ali al-Salman never advocated the violent

overthrow of the Government and has always specifically denounced violence. In his

speech on 26 December 2014, two days before his arrest, Sheikh Ali Al-Salman said that he

did not want Bahrain’s opposition to carry arms like the opposition in other countries.

11.

In addition, the source alleges that the prosecution witness was examined by the

Public Prosecution without notification and in the absence of Sheikh Ali al-Salman’s legal

representatives, despite a formal request having been made by the defence to attend the

session. The source attests that the Public Prosecution issued a number of incriminating

public statements condemning Sheikh Ali al-Salman, including false information, which

resulted in the creation of a hostile public opinion against him, as evidenced by reports in

the local media. The source states that this is contrary to the presumption of innocence of

Sheikh Ali al-Salman.

12.

Sheikh Ali al-Salman’s legal representatives sought his release pending trial on two

occasions, but a request submitted to the Chief General Attorney of the Public Prosecution

was rejected on 8 January 2015. No reasons were given for that decision. A decision on the

other application has yet to be made. The source submits that there was no justification for

detaining Sheikh Ali al-Salman as he presents no flight risk and there is no risk of

evidence-tampering or furthering offending by the accused.

Joint urgent appeal

13.

On 16 January 2015, the Working Group and other special procedure mandate

holders1 transmitted a joint urgent appeal to the Government of Bahrain enquiring about the

initial steps that it had taken to safeguard the rights of Sheikh Ali al-Salman in compliance

with international instruments. The joint urgent appeal also included a request for

information regarding: (a) the allegations made by the source; (b) the legal grounds for the

arrest and detention of Sheikh Ali al-Salman and how those measures are compatible with

the Universal Declaration of Human Rights and the Covenant; and (c) the measures that

had been taken to ensure that individuals with dissenting political or religious views in

Bahrain are able to carry out their work in a safe and enabling environment without fear of

harassment and criminalization.

14.

On 12 February 2015, the Public Prosecution of Bahrain submitted a response to the

joint urgent appeal, in which it noted that the charges against Sheikh Ali al-Salman2 were

based on an investigation that had revealed certain recorded and published speeches made

by him at public events. In those speeches, it is alleged that Sheikh Ali al-Salman, inter alia,

1 The Chair-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 rights to freedom of peaceful assembly and of association, the Special Rapporteur on freedom

of religion or belief, the Special Rapporteur on the situation of human rights defenders, the Special

Rapporteur on the independence of judges and lawyers and the Special Rapporteur on minority issues.

2 The Public Prosecution states that it charged Sheikh Ali al-Salman with: advocacy of the use of force

and threats to change the political regime; inciting hatred against a group of persons (those who have

acquired Bahraini citizenship); instigating civil disobedience; commending acts that constitute

criminal offences; and publicly insulting a State institution.

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gave permission to those hearing the statements to use force against the State, to carry out

explosions, to use military force to achieve political demands, not to abide by the law

regarding organized demonstrations and to continue the activities of a body known as the

Ulema Council, in breach of a court order dissolving that body.

15.

The Public Prosecution states that four lawyers attended the interrogation of Sheikh

Ali al-Salman and that he was provided with legal safeguards, such as the opportunity to

meet unaccompanied with his lawyers before every interrogation session, to be informed of

the charges against him at every session and to be permitted to meet with his family

members while in custody. In addition, the Public Prosecutor notes that, during the

interrogations, Sheikh Ali al-Salman was provided with the recordings of sermons and

speeches made by him, and that his lawyers were present and were aware of the content of

that evidence. While being questioned in the presence of his lawyers, Sheikh Ali al-Salman

acknowledged that he had delivered those sermons and speeches. Therefore, the allegation

that Sheikh Ali al-Salman’s lawyers were unable to examine the evidence is untrue.

16.

Furthermore, the Public Prosecution clarifies that the statements that it released

about Sheikh Ali al-Salman included the charges and evidence in order to clarify the legal

basis on which proceedings had been instituted against him.

17.

Finally, the Public Prosecution notes that it ordered Sheikh Ali al-Salman’s remand

in custody pending trial before the Criminal Court. The Court began its hearing of the case

on 28 January 2015, when Sheikh Ali al-Salman appeared, accompanied by his lawyers,

and pleaded in his own defence. The hearing was adjourned until 25 February 2015 for

further deliberation, and Sheikh Ali al-Salman was allowed to receive a copy of the case

file in his place of detention.

Further comments from the source

18.

The Government’s reply to the joint urgent appeal was forwarded to the source for

comment on 19 March 2015. The source provided the additional information below.

19.

The source states that the Criminal Court controlled the access of Sheikh Ali al-

Salman to his legal representatives throughout the trial, with visit requests delayed at

crucial moments when Sheikh Ali al-Salman and his lawyers wanted to discuss and prepare

for the cross-examination of the prosecution witness and before the pleadings session.

20.

The source alleges that the Court refused to play video recordings of Sheikh Ali al-

Salman’s public speeches, despite the fact that those speeches were the key evidence

submitted by the Public Prosecution in support of the charges. The Court gave no

justification for that refusal, even though Sheikh Ali al-Salman’s lawyers argued that the

prosecution witness had misrepresented the content of the speeches. The prosecution

witness was the investigation officer from the Ministry of the Interior, who had prepared

the report that resulted in the charges against Sheikh Ali al-Salman.

21.

In addition, according to the source, when the prosecution witness was called for

cross-examination, the Court refused to put the vast majority of questions from the defence

team to the witness. Since the defence team was not given any meaningful opportunity,

either by the Public Prosecution or before the Court, to challenge the legitimacy of the

evidence provided by the prosecution witness, Sheikh Ali al-Salman’s lawyers filed a

criminal complaint for perjury and falsification against the prosecution witness. However,

shortly after the complaint was filed, the Public Prosecution closed the complaint without

any further action.

22.

The source states that the Court refused to call witnesses requested by Sheikh Ali al-

Salman’s lawyers, who subsequently lodged a complaint to the President of the Supreme

Council of the Judiciary requesting the disqualification of the Court panel members to hear

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the case. No action has been initiated to respond to that complaint or to remedy the

situation.

23.

Furthermore, according to the source, Sheikh Ali al-Salman’s lawyers were

constantly interrupted during the trial. They were subjected to unprecedented searches

before entering the courtroom in an attempt to humiliate and intimidate them in preparing

and conducting the defence of Sheikh Ali al-Salman. Al-Wefaq leaders were not allowed to

attend the trial.

24.

In the last session, Sheikh Ali al-Salman requested the right to address the Court

directly in regard to the charges against him. According to the source, the Court granted

that request. However, immediately after Sheikh Ali al-Salman argued that the charges

against him related to a popular movement seeking democracy in Bahrain, the Court

refused to allow him to continue his address. According to the source, the minutes of the

court sessions were inaccurate in material details and failed to reflect what had happened in

the courtroom, including the final address. The source contends that the court minutes were

composed of information dictated by the Court to the court clerk rather than what was

actually said by the witnesses or the defence team.

25.

The source notes that, on 16 June 2015, Sheikh Ali al-Salman was convicted on

charges, including publicly inciting hatred, disturbing the public peace, inciting non-

compliance with the law and insulting the Ministry of the Interior and was sentenced to four

years’ imprisonment.

26.

The source submits that the detention of Sheikh Ali al-Salman is arbitrary and falls

under category II and III of the Working Group’s categories of arbitrary detention. The

source is of the view that the arrest and detention of Sheikh Ali al-Salman resulted from the

exercise of his right to freedom of opinion, the expression of his political views, his right to

assemble and associate with others through his active participation in the main Bahraini

opposition movement and his right to equal protection of the law as guaranteed by articles 7

and 19-21 of the Universal Declaration of Human Rights and articles 19, 21, 22, 25 and 26

of the Covenant.

27.

Finally, the source argues that Sheikh Ali al-Salman has not been afforded due

process and a fair trial, in violation of articles 9 and 10 of the Universal Declaration of

Human Rights and articles 9 and 14 of the Covenant. The source submits that the trial of

Sheikh Ali al-Salman was not fair because: (a) he was denied access to his lawyers during

interrogation; (b) he was not given any meaningful opportunity to examine the evidence or

the records of interrogation; and (c) his lawyers were constantly interrupted at court, and

the witnesses that they called were not summoned to court.

Working Group’s regular procedure communication

28.

According to information received from the source, Sheikh Ali al-Salman’s case is

regarded as representative of violations of international human rights standards that

regularly occur in Bahrain. The source therefore requested the Working Group to review

the case under its regular procedure communication so that an opinion could be rendered in

relation to whether or not the detention was arbitrary.

29.

On 18 June 2015, the Working Group transmitted the allegations from the source to

the Government of Bahrain under its regular procedure communication, requesting the

Government to provide detailed information by 17 August 2015 about the current situation

of Sheikh Ali al-Salman and to clarify the legal provisions justifying his continued

detention. The Working Group also requested the Government to provide details regarding

the conformity of Sheikh Ali al-Salman’s trial with international law.

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30.

According to paragraph 23 of the methods of work of the Working Group, the

Government is required to respond separately for the urgent action procedure and the

regular procedure communication. The Working Group did not receive a response from the

Government to the regular procedure communication. However, while not obliged to do so,

the Working Group has decided, in rendering its opinion, to take into account the

information received from the Government in response to the joint urgent appeal.3

Discussion

31.

The Working Group notes that, although the Government submitted some

information in response to the joint urgent appeal, it has not rebutted many of the prima

facie credible allegations made by the source.

32.

In assessing the credibility of the allegations, the Working Group has referred to its

previous opinions concerning recent individual communications received from various

sources regarding the violation of human rights in Bahrain.4 In those cases, findings have

been made about the use of arbitrary detention, including detention resulting from the

peaceful exercise of the rights to freedom of opinion and expression and peaceful assembly

and association, and the lack of a fair trial, demonstrating that there are systemic problems

in the administration of criminal justice in Bahrain.

33.

While the Public Prosecution has provided the Working Group with information

about the proceedings, it has not refuted the allegations that the arrest, detention and

prosecution of Sheikh Ali al-Salman was directly related to the public expression of his

opinions as a political opposition leader, a Shia Muslim and a religious figure. In particular,

the Working Group takes note of the fact that the arrest of Sheikh Ali al-Salman took place

two days after he had been re-elected as the Secretary General of Al-Wefaq, and after

having made statements calling for the establishment of a democratic regime and for greater

accountability of the Government.5

34.

The Working Group concludes that there is a violation of Sheikh Ali al-Salman’s

rights to freedom of religion or belief, freedom of opinion and expression, freedom of

peaceful assembly and association and the right to take part in government, under articles

18, 19, 20 and 21 of the Universal Declaration of Human Rights and articles 18, 19, 21, 22

and 25 of the Covenant,6 and that the case falls within category II of the categories

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

35.

The Public Prosecution has failed to rebut the allegations that Sheikh Ali al-Salman

was not provided with the guarantees necessary for his defence. In particular, although the

Public Prosecution has stated that lawyers had attended the interrogation of Sheikh Ali al-

3 According to paragraph 16 of its methods of work, the Working Group may render an opinion on the

basis of all the information it has obtained. In the present case, in order to give the Government every

opportunity to respond to the source’s allegations, the Working Group has exercised its discretion to

take the information submitted by the Government in response to the joint urgent appeal into account.

4 See, for example, opinions No. 6/2012, 12/2013, 22/2014, 25/2014, 27/2014, 34/2014 and 37/2014

(Bahrain).

5 As indicated in the joint urgent appeal, Sheikh Ali al-Salman’s right to strive for the promotion of

human rights is protected by the Declaration on the Right and Responsibility of Individuals, Groups

and Organs of Society to Promote and Protect Universally Recognized Human Rights and

Fundamental Freedoms, also known as the Declaration on Human Rights Defenders, in particular

articles 1, 5, 6, 7, 8, 9 and 12 thereof.

6 There was no suggestion by the Government that those freedoms should be limited in the present case

in order to protect national security, public safety, public order, public health, morals or the

fundamental rights and freedoms of others. Articles 18 (3), 19 (3), 21 and 22 (2) of the Covenant

allow limitations on those grounds, but they have not been raised in the present case.

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Salman and that he had been provided with legal safeguards and the recordings of speeches

made by him, it has provided no documentary evidence to support those assertions.7 While

the Public Prosecution has clarified that the statements which it released about Sheikh Ali

al-Salman included information about the charges and evidence against him, it has not

rebutted the allegations that incriminating and false public statements were made contrary

to the presumption of innocence which is afforded to all persons charged with a criminal

offence.

36.

The Public Prosecution has not addressed the source’s claims that Sheikh Ali al-

Salman was not given any meaningful opportunity to challenge the evidence provided by

the prosecution witness or to call his own defence witnesses. It has also not addressed

allegations made in relation to: (a) the interruptions of Sheikh Ali al-Salman’s lawyers and

the searches that they were subjected to before entering the courtroom; (b) the restrictions

placed on Sheikh Ali al-Salman when he attempted to address the court at the end of the

trial; and (c) the failure by the Public Prosecution to follow up on the criminal complaint

made in relation to the prosecution witness, and the lack of action on the request by Sheikh

Ali al-Salman’s lawyers that members of the Court be disqualified from hearing the matter.

37.

The Working Group considers that there is a violation of Sheikh Ali al-Salman’s

right to a fair trial, particularly the presumption of innocence under article 14 (2) of the

Covenant, and the right to adequate time and facilities for the preparation of his defence

under article 14 (3) (b) of the Covenant. In addition, according to principle 21 of the Basic

Principles on the Role of Lawyers, competent authorities are required to ensure that lawyers

have access to appropriate information, files and documents in their possession or control in

sufficient time to enable the lawyers to provide effective legal assistance. The allegations

made by the source also disclose a violation of the right of Sheikh Ali al-Salman under

article 14 (3) (e) of the Covenant to examine, or have examined, the witnesses against him

and to obtain the attendance and examination of witnesses on his behalf under the same

conditions as witnesses against him.

38.

The Working Group concludes that the breaches of articles 9-11 of the Universal

Declaration of Human Rights and articles 9 and 14 of the Covenant in the case of Sheikh

Ali al-Salman are of such gravity as to give his deprivation of liberty an arbitrary character,

falling within category III of the categories applicable to the consideration of cases

submitted to the Working Group.

39.

The alleged actions and conduct of the Public Prosecution contravene the duty to

ensure due process as set forth in guidelines 12 and 13 of the Guidelines on the Role of

Prosecutors. Under guideline 12, prosecutors are required to perform their duties fairly and

to respect and protect human dignity and uphold human rights, thus contributing to

ensuring due process. Under guideline 13 (a), prosecutors are required to carry out their

functions impartially and to avoid discrimination, including on political and religious

7 See opinion No. 41/2013 (Libya), para. 27, in which the Working Group recalled that, where it is

alleged that a person has not been afforded, by a public authority, certain procedural guarantees to

which he was entitled, the burden to prove the negative fact asserted by the applicant is on the public

authority, because the latter is generally able to demonstrate that it has followed the appropriate

procedures and applied the guarantees required by law by producing documentary evidence of the

actions that were carried out. A similar approach has been adopted by the Human Rights Committee,

according to which the burden of proof cannot rest on the author of the communication alone, given

that the author and the State Party do not always have equal access to the evidence, and frequently the

State party alone has the relevant information. See communications No. 1412/2005, Butovenko v.

Ukraine, Views adopted on 19 July 2011, para. 7.3; No. 1297/2004, Medjnoune v. Algeria, Views

adopted on 14 July 2006, para. 8.3; No. 139/1983, Conteris v. Uruguay, Views adopted on 17 July

1985, para. 7.2; and No. 30/1978, Bleier v. Uruguay, Views adopted on 29 March 1982, para. 13.3.

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grounds. The alleged actions and conduct of the Criminal Court contravenes the duty to

decide matters impartially and fairly in accordance with principles 2 and 6 of the Basic

Principles on the Independence of the Judiciary.

40.

The Working Group recalls that the present is only one of several opinions that have

found Bahrain to be in violation of its international human rights obligations. The Working

Group reminds Bahrain of its duties to comply with international human rights standards

not to detain arbitrarily, to release persons who are arbitrarily detained and to provide

compensation to them. The duty to comply with international human rights rests not only

on the Government but on all officials, including judges, prosecutors, police officers and

security forces.

Disposition

41.

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

The deprivation of liberty of Sheikh Ali al-Salman, being in contravention of articles

9-11 and 18-21 of the Universal Declaration of Human Rights and articles 9, 14, 18,

19, 21, 22 and 25 of the Covenant, is arbitrary, falling within categories II and III of

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

Group.

42.

Consequent upon the opinion rendered, the Working Group requests the

Government to take the necessary steps to remedy the situation of Sheikh Ali al-Salman

without delay and bring it into conformity with the standards and principles in the

Universal Declaration of Human Rights and the Covenant.

43.

Taking into account all the circumstances of the case, the Working Group considers

that the adequate remedy would be to release Sheikh Ali al-Salman immediately and to

accord him with an enforceable right to compensation in accordance with article 9 (5) of the

Covenant.

[Adopted on 2 September 2015]