A/HRC/WGAD/2015/35

GE.15-22558(E)

*1522558*

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. 35/2015 concerning Mahmoud Abdulrahman al-Jaidah

(United Arab Emirates)

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 15 September 2014 the

Working Group transmitted a communication to the Government of the United Arab

Emirates concerning Mahmoud Abdulrahman al-Jaidah. The Government replied to the

communication on 28 October 2014. The State is not 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

A/HRC/WGAD/2015/35

General Assembly

Distr.: General

21 December 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.

Mahmoud Abdulrahman al-Jaidah is a Qatari national ordinarily resident in Doha.

He is married and is the father of eight children. Prior to his arrest, Mr. Al-Jaidah worked as

a senior medical practitioner at Qatar Petroleum.

5.

According to the information received, while complying with routine security

procedures, Mr. Al-Jaidah was arrested by State Security forces of the United Arab

Emirates on 26 February 2013 at Dubai international airport as he was transiting through

Dubai on his way home from Thailand to Qatar. He was reportedly not presented with a

warrant at the time of his arrest, or notified of the charges against him.

6.

The source reports that, on 8 March 2013, Mr. Al-Jaidah’s wife received a brief

telephone call from him. He appeared unable to speak freely, as he was evading her

questions. Mr. Al-Jaidah informed his wife that he was detained in an unknown place in the

United Arab Emirates and that he was unaware of the reasons for his detention.

7.

According to the source, Mr. Al-Jaidah was detained incommunicado for eight

months before being charged with committing an offence. During that time, it is alleged

that he was tortured by prison guards, including by being deprived of sleep, beaten on the

soles of his feet and repeatedly punched in the face.

8.

According to the source, Mr. Al-Jaidah’s detention was politically motivated, as

surmised from the questions repeatedly put to him by the State Security interrogators about

his political convictions and his alleged connection to the Muslim Brotherhood.

9.

It is reported that, on 23 May 2013, Mr. Al-Jaidah was asked to sign a 39-page

document without being allowed to read its contents. Mr. Al-Jaidah was told by an

individual known as Abu Khamis that once he had signed the papers, he would be released

and transported to the airport so he could return home. It is alleged that the document

contained confessions from Mr. Al-Jaidah that were obtained under torture.

10.

The source reports that on 26 May 2013, Mr. Al-Jaidah was taken to the office of the

prosecutor Saqr Naqb. Although Mr. Al-Jaidah was informed by the prosecutor that he

would be able to return home very soon, he was instead returned to prison. It is alleged that

the prosecutor replicated the confessions obtained under torture in the formal charge sheet

against Mr. Al-Jaidah. Therefore, on 26 May 2013, Mr. Al-Jaidah was charged with helping

and funding an illegal secret organization. It is also alleged that he never received written

notification of the charges and has never been allowed to read the document he was forced

to sign.

11.

On 4 November 2013, Mr. Al-Jaidah’s trial began before the Federal Supreme

Court. At the first hearing in his case, the court issued the order that Mr. Al-Jaidah be

transferred to a public jail. On 16 or 17 November 2013, Mr. Al-Jaidah was transferred to

Al-Razeen prison, where he remains to date. Nine hearings took place before 3 March

2014, when the court delivered its verdict condemning Mr. Al-Jaidah to seven years’

imprisonment for helping an illegal secret organization. It is reported that because Mr. Al-

Jaidah appeared directly before the Federal Supreme Court, the sentence is definitive and

cannot be appealed, pursuant to article 67 of the Federal Supreme Court Law.

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12.

The source reports that Mr. Al-Jaidah was tried directly before the Federal Supreme

Court of the United Arab Emirates instead of being deferred to a court of first instance, and

that the prosecution provided no justification for that. The source submits that that infringes

article 25 of the Constitution of the United Arab Emirates, which guarantees equality before

the law to all citizens, and article 40, which guarantees foreign nationals enjoyment of the

rights and the liberties provided for in international conventions and treaties to which the

United Arab Emirates is a party.

13.

The source reports that Mr. Al-Jaidah was not allowed to consult or be represented

by a lawyer until 30 December 2013, at which time he was able to meet with a lawyer for

one hour prior to the sixth hearing in his trial. It is alleged that that was his only meeting

with the lawyer and that it took place in the presence of State security agents and was

recorded, in violation of article 16 (3) of the Arab Charter on Human Rights, which the

United Arab Emirates ratified in 2008.

14.

The source submits that Mr. Al-Jaidah’s deprivation of liberty is arbitrary and falls

under category I of the Working Group’s defined categories of arbitrary detention prior to

the start of his trial on 4 November 2013. The source reports that he was arrested without a

warrant and he was not informed of the charges against him until his appearance before the

court. As a consequence, he had been deprived of his liberty without any legal basis from

the time of his arrest. It is alleged that Mr. Al-Jaidah was detained incommunicado for eight

months by the State Security Services, and as a consequence was denied the possibility of

challenging the legality of his detention before a judicial authority. It is submitted that that

constitutes a breach of article 26 of the Constitution of the United Arab Emirates, which

guarantees freedom from torture and the arbitrary deprivation of liberty, and article 9 of the

Universal Declaration of Human Rights.

15.

The source submits that Mr. Al-Jaidah’s deprivation of liberty also falls under

category II of the Working Group’s defined categories of arbitrary detention. The source

emphasizes that Mr. Al-Jaidah was interrogated about his political convictions and his

alleged connections with the Muslim Brotherhood. His detention is alleged to be politically

motivated and therefore constitutes a violation of the right to freedom of opinion and

expression and the right to freedom of peaceful assembly, as guaranteed under article 30 of

the Constitution of the United Arab Emirates and articles 19 and 20 of the Universal

Declaration of Human Rights.

16.

The source submits that Mr. Al-Jaidah’s deprivation of liberty also falls under

category III of the Working Group’s defined categories of arbitrary detention, as his right to

a fair trial has been violated and he has been denied the possibility of seeking an effective

remedy, in contravention of articles 8, 9 and 10 of the Universal Declaration of Human

Rights.

17.

According to the source, Mr. Al-Jaidah was not informed of the charges brought

against him until his appearance before the court eight months after his arrest. He was

detained incommunicado for those eight months and his confessions were allegedly

extracted under torture during that time. The source adds that he was convicted on the sole

basis of the document he was coerced to sign without having been granted the right to read

it. He was not allowed to consult or be represented by a lawyer apart from just one meeting

lasting one hour.

18.

Furthermore, Mr. Al-Jaidah appeared directly before the Federal Supreme Court,

without first appearing before a court of first instance, so does not have the possibility of

appealing the sentence of the Federal Supreme Court or the ability to challenge the

lawfulness of his detention.

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Response from the Government

19.

The Working Group transmitted a communication to the Government of the United

Arab Emirates on 15 September 2014. The Government replied on 28 October 2014.

20.

The Government contends that Mr. Al-Jaidah was arrested at Dubai international

airport on 26 February 2013 pursuant to an arrest warrant which was shown to him at the

time of his arrest. The charges against him were explained and he was detained in a State

prison. His family and his country’s embassy were informed of his arrest and detention and

of the reasons therefor and neither party lodged a legal protest challenging the reasons for

his detention. His family and the ambassador of Qatar were given permission to visit him.

21.

The Government submits that Mr. Al-Jaidah was not subjected to any physical or

moral coercion through ill-treatment or torture during his interrogation by law enforcement

officials or the Public Prosecutor. The competent court refuted and refused to accept the

assertions made in the communication as being unfounded.

22.

The Government also submits that Mr. Al-Jaidah had committed the criminal

offence of collaborating with and subscribing to a secret organization that had been

outlawed in the United Arab Emirates. That organization, which advocates opposition to

the fundamental principles underpinning the system of national governance in order to take

over control of the State, had been dissolved under the terms of a judgement handed down

in case No. 79/2012 (crimes against State security). The accused had financed and

attempted to restructure the organization, thereby contravening article 180, paragraph 2, of

the Federal Criminal Code (Act No. 3 of 1986), as amended. All the national and

international legal rights and safeguards to which accused persons are entitled were

respected when he was interrogated by the Public Prosecutor on the charges against him

and confronted with the evidence.

23.

The Government contends that Mr. Al-Jaidah confessed before law enforcement

officials and the Public Prosecutor to the charges against him and, contrary to the

allegations made in the communication, signed the interrogation records of his own free

will and without coercion, after having read them. During the trial, neither he nor his

lawyer claimed that any coercion had been exerted when he made his confession before the

competent Public Prosecutor and, in considering the evidence substantiating the charges

against the accused, the Court based its findings, inter alia, on that confession. The Federal

Supreme Court took due care to ensure that the accused enjoyed all the statutory safeguards

during his trial, allowing him to meet with his lawyer and to present his defence. The

proceedings were then closed pending the judgement.

24.

According to the Government, Mr. Al-Jaidah was allowed to meet with his counsel

in private and, in accordance with instructions from the Public Prosecutor, no law

enforcement officers were present at those meetings.

25.

The Government submits that at the hearing on 3 March 2014, in its capacity as the

competent judicial body, the Federal Supreme Court delivered its judgement in case No.

302/2013 (crimes against State security) in the presence of the accused. The Government

confirms that Mr. Al-Jaidah was sentenced to a term of seven years’ imprisonment, together

with expulsion from the State, and he is currently serving his sentence in Al-Wathba

Central Prison.

26.

The Government indicates that, under the Constitution, the Federal Supreme Court

is the judicial body competent to hear crimes against State security irrespective of whether

the accused are citizens of the United Arab Emirates or foreigners. Contrary to the

impression that he is attempting to give, he was not treated in a discriminatory manner.

Judgements handed down by the Federal Supreme Court are subject to objection and review

on appeal.

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Comments from the source on the response from the Government

27.

The source submits that incrimination in the present case is based on articles 180

and 180/1 of the Criminal Code of the United Arab Emirates. According to the source, that

article has already been considered as contravening international human rights standards as

it criminalizes the exercise of the rights to peaceful assembly and freedom of association

(see Working Group opinion No. 60/2013).

28.

The source also stresses that the evidence used in the present case rested solely on

the statement Mr. Al-Jaidah was forced to sign under the duress of torture, without even

being given the opportunity to read it. According to the source, the Government is not

denying that the court built the charges on the statement he had signed. The source argues

that the Government’s admission that such a statement exists, despite the fact Mr. Al-Jaidah

denied the facts and mentioned to the judge that he had been tortured, is a clear breach of

the obligations of the United Arab Emirates under article 15 of the Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and underlines

the Government’s disregard for Mr. Al-Jaidah’s basic right to be free from torture.

29.

According to the source, in addition to referring to overly broad charges based on

facts that would fall under the rights to freedom of expression and of assembly, the

evidence itself was obtained in a blatant violation of the Convention against Torture. The

source points out that the Security Services are directly controlled by the executive and the

judges of the security branch of the Supreme Court. Thus, the source contends that the

investigation was not independent and rested solely on witnesses from and statements made

by the State Security Services.

30.

The source also points out that article 67 of the Federal Supreme Court Law states

that sentences by the Supreme Court shall be final and binding on all and not subject to

appeal by any of the methods of appeal, except in judgements in absentia in criminal

matters. According to the source, the courts are not independent from the executive since

all the judges are appointed by the executive and the decisions of the Supreme Court are

definitive and cannot be appealed.

31.

The source considers that the affirmation that Mr. Al-Jaidah was not ill-treated does

not reflect reality. The fact that he was held in secret detention for eight months without

being given the opportunity to challenge his detention in itself amounts to torture since, in

the source’s opinion, the aim of such a practice is to make the detainee sign a statement in

exchange for his “reappearance”.

32.

Moreover, the source contends that the fact that the court refused to take into

account allegations and the declaration of the accused and his lawyer about the torture to

which he was subjected does not and cannot constitute proof that the accused was not ill-

treated.

33.

Additionally, the source submits that the Government does not explain what it

considers to be an unfounded allegation of torture and wishes to recall the obligation of the

authorities to investigate any allegation of torture or other cruel, inhuman or degrading

treatment made by an individual under article 12 of the Convention against Torture, to

which the State is a party. Indeed, the source contends, given the reliable testimonies it has

received from detainees and that have already been transmitted to the Working Group in the

“UAE 94” case, there are more than reasonable grounds to believe that the authorities of the

United Arab Emirates have been derelict in their duty to prevent torture, take allegations of

torture seriously and investigate them. Consequently, the source wished to recall the

obligation of the State party to consider as inadmissible evidence that has been obtained

under torture, in accordance with article 15 of the Convention against Torture.

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34.

The source repeats the contention that the authorities were not able to provide any

other evidence of the accusation than a statement signed by the accused under the duress of

torture and without being given the opportunity to read it, let alone contest the facts.

35.

According to the source, the case to which the Government of the United Arab

Emirates refers as case No. 79/2012 is the “UAE 94” case, on which the Working Group

has already issued an opinion in which it stated that in those cases, violations of fair trial

rules were so serious and evident that the detention is arbitrary under Category III (see

Working Group opinion No. 60/2013). The case of Mr. Al-Jaidah is similar to the one cited

and the Government of the United Arab Emirates is expressly linking them. As in that case,

the incrimination for the case of Mr. Al-Jaidah is based on articles 180 and 180/1 of the

Criminal Code of the United Arab Emirates, which had already been confirmed by the

Working Group as violating the exercise of the rights to peaceful assembly and association.

36.

The source recalls that Mr. Al-Jaidah was detained incommunicado and without

legal justification following his arrest. In that regard, the source disagrees with the

Government on the fact that he was granted fair trial guarantees since incommunicado

detention is a prima facie form of arbitrary detention. The source repeats the contention that

Mr. Al-Jaidah was not allowed to consult or be represented by a lawyer until 30 December

2013, when he was able to meet with counsel for an hour prior to the sixth hearing of his

trial. Moreover, in the response from the Government, that meeting is reported in a way that

suggests that, by allowing Mr. Al-Jaidah the opportunity to have a private meeting with his

lawyer during the trial, the Government had done him a favour.

37.

The source submits again that the right to hold such a meeting eight months after

being arrested does not constitute an exceptional favour for a detained person. The source

reaffirms that Mr. Al-Jaidah’s wife received a telephone call from him only eight days after

his arrest, and that she could not visit him for eight months, during which she was

completely unaware of his whereabouts.

38.

Contrary to the affirmation of the Government, the source submits again that Mr. Al-

Jaidah has never acknowledged the accusation made against him, despite the torture to

which he was subjected in order to make him sign the statement. The source maintains that,

during his trial, he clearly stated that the accusations were false and that he had never

committed a crime under the laws of the United Arab Emirates.

39.

The source highlights the extremely severe and disproportionate sentence that was

handed down to Mr. Al-Jaidah following an unfair trial on charges that he has denied

throughout the process. The source also stresses the disproportionate character of the

sentence for an incrimination that goes against recognized guarantees under international

human rights law, namely, the right to peaceful assembly and to freedom of expression.

40.

Additionally, the source highlights that articles 180 and 180/1 of the Criminal Code

of the United Arab Emirates regarding freedom of peaceful assembly and freedom of

expression are overly broad and are being used to bring charges that are vague. Thus the

source believes that the vagueness and the broad nature of both the legislation and the

charges show that they were used in bad faith to keep Mr. Al-Jaidah detained in order to

fabricate charges against him rather than truly establishing justice for any alleged crimes

that might have been committed.

Discussion

41.

In the light of the above, the Working Group considers that there have been grave

violations of fair trial throughout the procedures from arrest to conviction, in violation of

article 10 of the Universal Declaration of Human Rights.

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42.

The Working Group recalls the judgement of the International Criminal Court,

according to which “where the breaches of the rights of the accused are such as to make it

impossible for him/her to make his/her defence within the framework of his rights, no fair

trial can take place … Unfairness in the treatment of the suspect or the accused may rupture

the process to an extent making it impossible to piece together the constituent elements of a

fair trial”.1

43.

The Working Group recalls its opinions No. 56/2014, No. 12/2014, No. 60/2013,

No. 64/2011 and No. 8/2009 concerning the United Arab Emirates, in which the Working

Group found violations of freedom of opinion and expression and freedom of peaceful

assembly and association, guaranteed under articles 19 and 20 of the Universal Declaration

of Human Rights; of the right to fair trial, guaranteed under articles 8 and 10 of the

Universal Declaration of Human Rights; and of the right to freedom from arbitrary

detention, guaranteed under article 9 of the Universal Declaration of Human Rights.

Furthermore, the Working Group notes the recurring communications received by the

Working Group from various reliable and credible sources concerning a systematic practice

of torture, incommunicado detention and prolonged solitary confinement. In this regard, the

Working Group is concerned at what appears to be a pattern of gross human rights

violations in the United Arab Emirates and recalls the obligation of the Government to

comply with international human rights law.

44.

The Working Group considers that the deprivation of liberty of Mr. Al-Jaidah prior

to the start of his trial on 4 November 2013 is arbitrary and falls under category I of the

Working Group’s defined categories of arbitrary detention. He was not informed of the

charges against him until his appearance before the court. As a consequence, he had been

deprived of his liberty without any legal basis from the time of his arrest. Furthermore, he

was detained incommunicado for eight months by the State Security Services, and as a

consequence was denied the opportunity to be able to challenge the legality of his detention

before a judicial authority. The Working Group considers that this is in violation of article

26 of the Constitution of the United Arab Emirates, which guarantees freedom from torture

and arbitrary deprivation of liberty, and of article 9 of the Universal Declaration of Human

Rights.

45.

Furthermore, the Working Group considers that the deprivation of liberty of Mr. Al-

Jaidah falls under category II of the Working Group’s defined categories of arbitrary

detention. Mr. Al-Jaidah was interrogated about his political convictions and his alleged

connections with the Muslim Brotherhood. His detention thus appears to be politically

motivated and thereby constitutes a violation of the right to freedom of opinion and

expression and the right to freedom of peaceful assembly as guaranteed by article 30 of the

Constitution of the United Arab Emirates and articles 19 and 20 of the Universal

Declaration of Human Rights.

46.

The Working Group also considers that the deprivation of liberty of Mr. Al-Jaidah

falls under category III of the Working Group’s defined categories of arbitrary detention, as

his right to a fair trial has been violated and he has been denied the opportunity of seeking

an effective remedy, in contravention of articles 8, 9 and 10 of the Universal Declaration of

Human Rights.

47.

The Working Group notes that Mr. Al-Jaidah was not informed of the charges

brought against him until his appearance before the court eight months after his arrest. He

was detained incommunicado and his confessions were allegedly extracted under torture

1 See International Criminal Court, Judgement on the Appeal of Mr. Thomas Lubanga Dyilo against the

Decision of the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the

Statute of 3 October 2006, Case No. ICC-01/04-01/06 (OA4), 14 December 2006, para. 39.

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during this time. He was also convicted on the sole basis of the document he was coerced to

sign without having been granted the right to read it. He was not allowed to consult or be

represented by a lawyer apart from just one meeting lasting one hour.

48.

Furthermore, he was directly presented to the Federal Supreme Court, without first

appearing before a court of first instance. He also does not have the possibility of appealing

the sentence of the Federal Supreme Court, nor the ability to challenge the lawfulness of his

detention.

Disposition

49.

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

The deprivation of liberty of Mahmoud Abdulrahman al-Jaidah is arbitrary, being in

contravention of articles 8, 9, 10, 19 and 20 of the Universal Declaration of Human

Rights, and falls within categories I, II and III of the categories applicable to the

consideration of the cases submitted to the Working Group.

50.

Consequent upon the opinion rendered, the Working Group requests the

Government of the United Arab Emirates to take the steps necessary to remedy the situation

of Mr. Al-Jaidah without delay. The Working Group believes that, taking into account all

the circumstances of the case, the adequate remedy would be to release Mr. Al-Jaidah

immediately and grant him reparation for the harm he has suffered during the period of his

arbitrary detention.

51.

In the light of the above, in accordance with paragraph 33 (a) of its methods of

work, the Working Group refers the allegation of torture and the unwillingness of the

authorities of the United Arab Emirates to comply with several of its obligations as a State

party to the Convention against Torture, including those under articles 12 and 15, to the

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

punishment for further action.

52.

The Working Group also encourages the United Arab Emirates to accede to the

International Covenant on Civil and Political Rights and to end the practice of arbitrary

arrests, incommunicado detentions and torture that has become systematic in its territory.

[Adopted on 4 September 2015]