A/HRC/WGAD/2015/28

GE.15-20231(E)

*1520231*

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. 28/2015 concerning Abdullah Fairouz Abdullah Abd al-

Kareem (Kuwait)

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 22 January 2015 the

Working Group transmitted a communication to the Government of Kuwait concerning

Abdullah Fairouz Abdullah Abd al-Kareem. On 29 January 2015, the Permanent Mission of

Kuwait to the United Nations Office at Geneva requested an extension of the time limit in

which to respond. On 10 March 2015, the Government of Kuwait 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);

United Nations

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General Assembly

Distr.: General

18 November 2015

Original: English

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(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);

(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.

Mr. Al-Kareem is a 30-year-old Kuwaiti national whose birth certificate, No.

0512072, was issued by the Kuwaiti authorities. He is a member of the Kuwait Human

Rights Society and has worked to rectify the stateless situation of the Bidun people. He is

also a writer and journalist.

5.

On 4 November 2013, Mr. Al-Kareem was arrested without a warrant in Kuwait

City by the Kuwait National Police. It is alleged that the police beat him during the arrest,

particularly on his head. Mr. Al-Kareem is currently detained in the Central Jail.

6.

On 9 January 2014, the Court of First Instance convicted Mr. Al-Kareem on charges

of having insulted the Emir of Kuwait on the social media website Twitter. The legal basis

for the conviction is article 25 of the State Security Crimes Act, which applies to anyone

who publicly objects to the rights and authorities of the Emir or faults him or who

disseminates comments by mobile telephone that are considered objectionable . The Court

also issued a deportation order against Mr. Al-Kareem, to be carried out following the

completion of his sentence.

7.

On 5 June 2014, the Court of Appeals upheld the sentence against Mr. Al-Kareem,

confirming his sentence to five years of imprisonment and the deportation order against

him.

8.

On 24 December 2014, the Court of Appeals reduced Mr. Al-Kareem’s prison

sentence from two years to six months.

9.

The source attests that, under the laws of Kuwait, non-citizens convicted of serious

crimes can be deported after completion of their prison sentence. However, it argues that

those circumstances do not apply to Mr. Al-Kareem as he is considered a citizen of Kuwait

pursuant to the Law of Kuwaiti Nationality 1959/19, article 2, owing to his father’s status

as a Kuwaiti citizen. This was confirmed by the Administrative Court of Cassation in its

decision 2011/333, and by the Administrative Court of Appeals by its decisions 2011/529

and 2013/1570.

10.

Although the Ministry of the Interior issues all Kuwaiti citizens with a citizenship

certificate in addition to a passport or national identification card, it did not issue one for

Mr. Al-Kareem, for reasons unknown to the source. It is on the basis of not having a

citizenship certificate that the Court of First Instance, in its sentencing order for Mr. Al-

Kareem, treated him as a non-citizen.

11.

The arrest and detention of Mr. Al-Kareem is considered by the source as arbitrary,

under category II of the Working Group’s defined categories of arbitrary detention. In its

view, all of the statements made by Mr. Al-Kareem on Twitter and his online blog posts

were peaceful in nature and did not express any support for violence. Mr. Al-Kareem is

being detained and may possibly be exiled on the basis of his political commentary, in

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violation of his rights to free expression and movement, guaranteed by articles 19 and 20 of

the Universal Declaration of Human Rights and articles 12, 19 and 21 of the Covenant.

Response from the Government

12.

On 22 January 2015, the Working Group transmitted a communication to the

Government of Kuwait, including a summary of the allegations made by the source. The

Working Group requested the Government to include in its reply detailed information about

the current situation of Mr. Al-Kareem and to clarify the factual basis and legal provisions

justifying his continued detention. On 10 March 2015, the Government of Kuwait replied to

the communication with the information below.

13.

In its response to the Working Group, the Government reports that the status of the

right to human dignity in Kuwait is clearly illustrated by the provisions of the Constitution,

under which everyone is equal in human dignity (art. 29) and no one shall be arrested,

detained, searched or compelled to reside in a specified location, nor shall his freedom of

residence or movement be restricted, except as provided by law, and no one shall be

subjected to torture or degrading treatment (art. 31). Moreover, all persons enjoy protection

under the terms of article 34 of the Constitution, according to which an accused person is

presumed innocent until proved guilty in a legal trial, during which the requisite safeguards

for his exercise of the right of defence are secured.

14.

In keeping with those principles, article 184 of the Criminal Code stipulates that

anyone who arrests, imprisons or detains a person in circumstances other than those

permitted by law, or without observing the legally prescribed procedures, shall be liable to

a penalty of up to three years’ imprisonment and/or a fine of up to 225 dinars. If such acts

are combined with physical torture or a threat to kill, then the penalty shall be up to seven

years’ imprisonment, to which a fine of up to 525 dinars may be added. This was further

emphasized in Act No. 31 of 1970 amending the Criminal Code, particularly with regard to

public officials and law enforcement officers. Under article 53 of the Code, as amended,

any public servant or official who, in person or by instructing others, is responsible for the

torture of an accused person, a witness or an expert with a view to inducing them to confess

to an offence or make statements or provide information in connection therewith shall be

liable to a penalty of up to five years’ imprisonment and/or a fine of up to 500 dinars. If the

torture leads to, or is combined with, an act carrying a heavier legal penalty, then the

penalty for the said act shall be imposed. If the torture proves fatal, then the penalty shall be

that prescribed for intentional homicide.

15.

According to the Government, it should again be noted that, under article 34 of the

Constitution, an accused person is presumed innocent until proved guilty in a legal trial,

during which the requisite safeguards for his exercise of the right of defence are secured.

16.

From the above, according to the Government, it is evident that the allegations made

by the source of the information are incompatible with the laws and regulations in force in

Kuwait.

17.

With regard to the question concerning the nationality of Mr. Al-Kareem, the

Ministry of Justice of Kuwait confirmed the refusal to issue him with a citizenship

certificate, after a lengthy examination of case file No. 84/2013 by the Criminal

Enforcement and International Cooperation Department. For Kuwait, it is evident that Mr.

Al-Kareem has not yet obtained Kuwaiti citizenship, given that a number of administrative

issues are still being deliberated and no final judgements have been rendered thereon. The

case remains under investigation.

18.

With regard to the question concerning the cases in which Mr. Al-Kareem was

sentenced to a penalty of imprisonment and the propriety of the material that he

disseminated, the Government attests that, according to its study of Case No. 18/2013/State

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Security Crimes, the Public Prosecution had indicted the accused, Mr. Al-Kareem, for

publicly contesting the rights and authority of the Emir, defaming his person, disparaging

the basis on which he holds office and deliberately misusing means of telecommunication

to disseminate the comments referred to in the case file through his two Twitter accounts. It

then called for the imposition of the penalties prescribed in article 25 of Act No. 31 of

1970, amending various provisions of the Criminal Code, and article 1 of Act No. 9 of 2001

concerning the misuse of telecommunication and eavesdropping equipment. At a hearing

on 9 January 2014, the criminal court sentenced Mr. Al-Kareem to an enforceable term of

five years’ penal servitude on the charges brought against him and ordered his deportation

from the country on completion of his sentence. To this, Mr. Al-Kareem lodged appeal No.

304/2014/Criminal Misdemeanours/7. At the hearing on 5 June 2014, the Criminal Appeal

Court ruled that his appeal was admissible in form but not in substance and upheld the

sentence, which thereby became final. Mr. Al-Kareem is currently serving his sentence in

the Central Prison, run by the Directorate General of Correctional Institutions of the

Ministry of the Interior.

19.

With regard to the question concerning the reduction of his sentence from two years

to six months under the terms of the ruling delivered on 24 December 2014 in case No.

297/2013/Kuwaiti City (37/2013/Criminal Misdemeanours), the Government attests that

the Public Prosecution had indicted the accused, Mr. Al-Kareem, on the charge of using the

public social networking website Twitter in a manner that failed to show due respect for

two judges, the Chairman of the Supreme Judicial Council and Ayman Abdullah al-Azzaz,

a judge of the Court of First Instance, for sending the messages referred to in the case file,

which were regarded as casting doubt on those judges’ integrity, professional diligence and

commitment to the provisions of the law. The Public Prosecution called for the imposition

of the penalty prescribed in article 147, paragraph 1, of the Criminal Code. Mr. Al-Kareem

was sentenced to an enforceable term of two years’ penal servitude and a fine of 150 dinars

on the charge brought against him and was ordered to pay a fixed amount of 5,000 dinars in

damages to the civil party. Mr. Al-Kareem lodged appeal No. 685/2013 and, at a hearing on

24 December 2014, the Misdemeanours Appeal Court ruled that his appeal was admissible

in both form and substance and, accordingly, commuted his sentence to an enforceable term

of six months’ penal servitude and a fine of 150 dinars on the charge brought against him,

while upholding the appealed judgement in the civil lawsuit. That sentence will be served

immediately after completion of the sentence imposed in Case No. 18/2013/State Security

Crimes, in accordance with article 221, paragraph 1, of the Code of Criminal Procedure,

under which multiple prison sentences must be served consecutively.

20.

With regard to the legality of his deportation after completion of his sentence,

according to the Government, it should be noted that article 66 of the Criminal Code

prescribes consequential penalties for persons convicted under articles 3, 57 and 62, and

that, under article 97 of the Code, those penalties include deportation of a foreigner from

the country on completion of his prison sentence. The Court of Cassation, which is the

highest court in the Kuwaiti judicial hierarchy, has ruled that a foreigner is any non-

Kuwaiti, regardless of whether he holds a nationality or is stateless. According to the

Government, in the present judicial ruling, the person in question is still a foreigner insofar

as he has not obtained Kuwaiti citizenship, and so the penalty of deportation to which he

has been sentenced is a mandatory penalty as stipulated in the Kuwaiti legislation

promulgated with the approval of the National Assembly, meaning that it is not politically

motivated.

21.

With regard to the allegation that Mr. Al-Kareem was arrested without a warrant,

detained arbitrarily and subjected to torture during his arrest, a study of case file No.

18/2013/State Security Crimes shows that Mr. Al-Kareem was arrested by duly authorized

police officers on the afternoon of Monday, 4 November 2013, pursuant to a warrant issued

by the Public Prosecution on the same day.

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22.

Mr. Al-Kareem was held in custody by the competent police authority for no longer

than the legally prescribed period, having been brought before the Public Prosecution on

the afternoon of 5 November 2013, the day after his arrest.

23.

Mr. Al-Kareem was held in pretrial detention on the basis of an order issued by the

Public Prosecution on 6 November 2013, for his remand in custody for a period of 10 days

with effect from the date of his arrest.

24.

His remand in custody pending trial was extended on the expiration of the that 10-

day period, under the terms of an order issued by the competent court at a hearing on 14

November 2013.

25.

According to the Government, the allegation that he was arrested without a warrant

and detained arbitrarily is therefore unfounded and contrary to the true facts, since a study

of the case file shows that all of the above measures were taken on the basis of orders in

due and proper form issued by competent bodies acting within the limits of their legal

authority and in accordance with articles 9, 10, 11, 39 (a) and (b), 48, 53 (a), 60, 62, 67, 69,

70 and 144 of the Code of Criminal Procedure.

26.

With regard to the Mr. Al-Kareem’s statements made during the investigation to the

effect that he had been blindfolded, beaten and insulted during his detention in police

premises, the Government attests that this was denied by the police officer and no visible

traces substantiating that allegation were found when he was brought before the Public

Prosecution for questioning. Moreover, according to the Government, Mr. Al-Kareem

asserted that the culprit responsible for those acts was unknown and did not accuse any

specific person. He added that the acts to which he had been subjected were not of a

coercive nature, his statements during the investigation had been made of his own free will

and the incident had not left any medically detectable injuries or traces. Consequently,

according to the Government, that allegation is unsubstantiated by presumptive or other

evidence and could not be verified during the investigation.

27.

With regard to the other questions, such as the non-applicability of the penalty of

deportation to Mr. Al-Kareem and the possibility of it being politically motivated, the

Government attests that article 3 of the Criminal Code stipulates that felonies are offences

punishable by death or imprisonment for life or for a fixed term of more than three years.

Article 57 of the Code further stipulates that the principal penalties that can be imposed in

accordance with this Code are, inter alia, a fixed term of imprisonment. Under article 62 of

the Code, a fixed term of imprisonment amounts to not less than 24 hours and not more

than 15 years. According to article 66 of the Code, the consequential and supplementary

penalties prescribed in this Code are, inter alia, a foreigner’s deportation from the country.

Under article 67 of the Code, a penalty is consequential if prescribed by law as an

inevitable effect of the imposition of the principal penalty. Under article 79, paragraph 2, of

the Code, if a foreigner is sentenced to a criminal or custodial penalty for a dishonourable

offence or breach of trust, the judge shall order his deportation from the country on

completion of his sentence.

28.

The rulings of the Court of Cassation are based on the firmly established principle

that a foreigner is any non-Kuwaiti, regardless of whether he holds another nationality or is

stateless (see ruling of the Court of Cassation delivered at the hearing of criminal objection

No. 85/1994 on 24 October 1994).

29.

Article 25 of Act No. 31 of 1970 amending various provisions of the Criminal Code

stipulates that anyone who, openly or in a public place or in a place where he can be heard

or seen by a person in a public place, by word of mouth, outcry, in writing or through

graphic or pictorial representation or any other means of expression of thought, contests the

rights and authority of the Emir, defames his person or disparages the basis on which he

holds office shall be liable to a penalty of up to five years’ imprisonment.

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30.

In the light of the above, insofar as the judgement handed down in case No.

18/2013/State Security Crimes sentenced the convicted person, Mr. Al-Kareem, to the

prescribed penalty of five years’ imprisonment for the commission of the offence specified

in article 25 of Act No. 31 of 1970 amending various provisions of the Criminal Code, the

order for his deportation from the country as a consequential penalty was inevitable given

the fact that the penalty to which he had been sentenced constituted a criminal penalty of

more than three years’ imprisonment and also in view of the fact that he was still a

foreigner owing to his non-acquisition of Kuwaiti citizenship, as explained above.

Accordingly, the penalty of deportation that was imposed on him was a legally mandatory

penalty as prescribed in the above-mentioned articles and was not politically motivated.

31.

Kuwait mentioned that the Court of Appeal may, at its discretion, order two prison

sentences to run concurrently if so requested by the convicted person and, furthermore, the

Emir of the country is empowered to waive penalties, including the penalty of deportation

from the country, in accordance with the provisions of articles 221 and 239 of the Code of

Criminal Procedure.

32.

From the perspective of the Government of Kuwait, it could be inferred from the

above review of the facts, that Mr. Al-Kareem’s alleged subjection to a beating is

unfounded. He is serving a prison sentence pursuant to a court judgement handed down

against him after legal proceedings in which he enjoyed all the safeguards provided for in

the Constitution, Kuwaiti law and international instruments, including the right to a fair trial

at all levels of jurisdiction, in keeping with the principle that the accused is innocent until

proved guilty, the right to appoint defence counsel, the right to be tried in public and all the

other guaranteed rights to which any accused person is entitled under Kuwaiti law. It is

noteworthy that Mr. Al-Kareem was defended by the attorney Dr. Khaled al-Kafifa and all

the details of the trial and the substantiating grounds for the judgement were published in

full in the news and social networking media.

33.

The authorities of Kuwait consider that Mr. Al-Kareem’s situation cannot be

considered as a case of arbitrary detention since he has fully enjoyed and is still enjoying all

the fundamental legal guarantees of the right to a fair and public trial and all the legal rules

have been applied in accordance with the national and international norms. He was not held

in solitary confinement and was detained only after the institution of proceedings against

him and his sentencing as a result thereof. In their opinion, Mr. Al-Kareem received a fair

and public trial and did not remain in detention even though the punishment applied to him

had been executed or in spite of the promulgation of an amnesty enactment applicable to

him. This is in conformity with the provisions of the Covenant and, in particular, its articles

2 (3) (a) and (b), 9 (1-4), 12 (3), 13-15, 18 (3) and 19 (3).

Comments by the source

34.

The Working Group addressed a letter to the source on 18 March 2015, requesting

the source to submit its comments or observations on the Government’s reply. The source

has not responded to the letter from the Working Group.

Discussion

35.

Despite the lack of comments from the source, the Working Group is in the position

to render an opinion on the basis of all information that it has obtained. In particular, Mr.

Al-Kareem has worked to rectify the stateless situation of the “Bidun” people and is a

writer and journalist. On 4 November 2013, Mr. Al-Kareem was arrested in Kuwait City by

the national police.

36.

It was confirmed by the Government of Kuwait that Mr. Al-Kareem was indicted for

publicly contesting the rights and authority of the Emir, defaming his person, disparaging

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the basis on which he holds office and deliberately misusing means of telecommunication

to disseminate the comments referred to in the case file through his two Twitter accounts,

and that it called for the imposition of the penalties prescribed in criminal codes.

37.

It was also confirmed by the Government that Mr. Al-Kareem is serving a prison

sentence pursuant to a court judgement handed down against him after legal proceedings

for having insulted the Emir of Kuwait on Twitter. The Court of Appeals upheld the

sentence.

38.

The Working Group, in its deliberation No. 8 on deprivation of liberty linked

to/resulting from the use of the Internet, emphasized that “the application of any measure of

detention against Internet users, taken in the framework of criminal investigation,

proceeding, conviction or by an administrative authority, undoubtedly amounts to a

restriction on the exercise of the freedom of expression. Unless it complies with the

conditions prescribed by international law, such restriction by the authorities is arbitrary,

hence unlawful”.1

39.

The Working Group noted that “peaceful, non-violent expression or manifestation of

one’s opinion, or dissemination or reception of information, even via the Internet, if it does

not constitute incitement to national, racial or religious hatred or violence, remains within

the boundaries of the freedom of expression. Hence, deprivation of liberty applied on the

sole ground of having committed such actions is arbitrary”.2

40.

Furthermore, the legislation on which the judgement against Mr. Al-Kareem is based

is contrary to international law and thus inhibits free expression and punishes the use of the

Internet.

41.

With regard to violations of national legislation, the Working Group reiterates that,

in conformity with its mandate, it must ensure that national law is consistent with the

relevant international provisions set forth in the Universal Declaration of Human Rights or

in the relevant international legal instruments to which the State concerned has acceded.

Consequently, even if the detention is in conformity with national legislation, the Working

Group must ensure that such detention is also consistent with the relevant provisions of

international human rights law.

42.

The Working Group recalls that holding and expressing opinions, including those

that are not in line with official government policy, are protected by article 19 of the

Universal Declaration of Human Rights and article 19 (2) of the Covenant. In paragraph 38

of its general comment No. 34 (2011) on freedoms of opinion and expression, the Human

Rights Committee emphasized that “the mere fact that forms of expression are considered

to be insulting to a public figure is not sufficient to justify the imposition of penalties, albeit

public figures may also benefit from the provisions of the Covenant. Moreover, all public

figures, including those exercising the highest political authority, such as heads of state and

government, are legitimately subject to criticism and political opposition”.

43.

The Working Group expresses concern about the lack of recognition of the

nationality of Mr. Al-Kareem that led to discriminatory conduct from the authorities of

Kuwait by treating him as a non national.

44.

The Working Group considers that Mr. Al-Kareem’s deprivation of liberty resulted

from the exercise of his right to freedom of expression through social media, as guaranteed

by article 19 of the Universal Declaration of Human Rights and article 19 of the Covenant.

1 See report of the Working Group, E/CN.4/2006/7, para. 39.

2 Ibid., para. 47.

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Thus, his deprivation of liberty falls within categories I and II of the categories applicable

to the consideration of cases submitted to the Working Group.

Disposition

45.

In the light of the foregoing, the Working Group on Arbitrary Detention renders the

following opinion:

The deprivation of liberty of Abdullah Fairouz Abdullah Abd al-Kareem is arbitrary,

being in contravention of articles 10 and 19 of the Universal Declaration of Human

Rights, and articles 9, 14 and 19 of the Covenant; it falls within categories I and II of

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

Group.

46.

Consequent upon the opinion rendered, the Working Group requests the

Government to take the necessary steps to remedy the situation of Mr. Al-Kareem and to

bring it into conformity with the standards and principles set forth in the Universal

Declaration of Human Rights and Covenant.

47.

The Working Group believes that, taking into account all the circumstances of the

case, the adequate remedy would be to release immediately Mr. Al-Kareem and accord him

an enforceable right to compensation in accordance with article 9, paragraph 5, of the

Covenant.

48.

In accordance with article 33(a) of its methods of work, the Working Group

considers it appropriate to refer the allegations of torture to the Special Rapporteur on

torture and other cruel, inhuman or degrading treatment or punishment for appropriate

action. Also, the Working Group considers it appropriate to refer the allegations of

discriminatory treatment of Mr. Al-Kareem, being born in Kuwait and treated as non-

citizen by authorities, to the Special Rapporteur on minority issues, for appropriate action.

[Adopted on 3 September 2015]