A/HRC/WGAD/2015/5

GE.15-11322 (E)



Human Rights Council

Working Group on Arbitrary Detention

Opinion adopted by the Working Group on Arbitrary

Detention at its seventy-second session (20–29 April 2015)

No. 5/2015 (Syrian Arab Republic)

Communication addressed to the Government on 15 January 2015

concerning Bassel Khartabil

The Government has not replied to the communication.

The State is party to the International Covenant on Civil and Political Rights.1

1.

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

the former 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 2006/102 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. In accordance with its methods of work

(A/HRC/16/47 and Corr.1, annex), the Working Group transmitted the above-mentioned

communication to the Government.

2.

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 or

her sentence or despite an amnesty law applicable to the detainee) (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);

1 The Syrian Arab Republic acceded to the Covenant on 21 April 1969.

United Nations

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General Assembly

Distr.: General

6 July 2015

Original: English

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(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);

(e)

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

reasons of discrimination based on birth; national, ethnic or social origin; language;

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

disability or other status, and which aims towards or can result in ignoring the equality of

human rights (category V).

Submissions

Communication from the source

3.

Bassel Khartabil is an information technology professor and software engineer. He

has been active in spreading the use of open web technologies across the Arab world,

advocating for unrestricted use of the Internet. He has used cell phone-recorded videos to

document public demonstrations in the Syrian Arab Republic and shared them with the

media.

4.

On 15 April 2012, Mr. Khartabil was arrested as he was leaving work, in Al-Mezzeh

district, Damascus, by both uniformed and plain-clothes members of Military Security

Branch No. 215. No warrant was produced for his arrest. The following week, security

forces brought Mr. Khartabil to his house, which they searched, and confiscated his

computer and other documents. Mr. Khartabil was then taken to an unknown location and

remained incommunicado for more than nine months.

5.

On 21 September 2012, a joint urgent appeal (SYR 8/2012) was transmitted to the

Government of the Syrian Arab Republic by the Chair-Rapporteur of the Working Group

on Arbitrary Detention, the Chair-Rapporteur of the Working Group on Enforced or

Involuntary Disappearances and the Special Rapporteur on torture and other cruel, inhuman

or degrading treatment or punishment. At that time, the special procedures mandate holders

expressed their concern about the allegations that Mr. Khartabil was being subjected to

incommunicado detention in an unknown location, had been subjected to torture and ill-

treatment and had been denied contact with his family and access to a lawyer. They also

expressed concern for his psychological and physical integrity, taking into consideration his

condition as a diabetic.

6.

On 26 December 2012, Mr. Khartabil’s family first made contact with him, at which

time they learned that after his arrest he had been detained in the Military Security Branch

No. 215 secret detention centre for five days, before being transferred to Military

Investigation Branch No. 248. The source informs that Mr. Khartabil was heavily tortured

while detained in those branches, and his family found him psychologically traumatized

and in poor physical condition. In particular, Mr. Khartabil’s health situation had seriously

deteriorated, as his diabetes was not given the required medical attention. The source

conveys that Mr. Khartabil told his family that a few weeks after his arrest he was

transferred to Adra Prison, where he was detained in solitary confinement for the remaining

eight months.

7.

On 9 December 2012, Mr. Khartabil was brought before a military prosecutor, who

charged him with “spying for an enemy state” under articles 272 and 274 of the Syrian

Penal Code, and referred his case to a military field court. It is reported that during the

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hearing, which only lasted a few minutes, the military prosecutor did not provide evidence

against Mr. Khartabil nor did he let him present his defence. Furthermore, he was not

granted access to a lawyer.

8.

Following his appearance before a military prosecutor, Mr. Khartabil was

immediately transferred to Sidnaya Prison. On 24 December 2012, he was transferred back

to Adra Prison, where he remains detained, awaiting his trial in reportedly extremely poor

conditions.

9.

The source submits that the deprivation of liberty of Mr. Khartabil is arbitrary and

falls under categories I, II and III. In the source’s view, the nine-month period of

Mr. Khartabil’s detention (from the time of his arrest to his appearance before the military

prosecutor) is without any legal basis, as he was never informed of the reason for his arrest

and detention, and is contrary to article 9 of the Universal Declaration of Human rights,

article 9 of the Covenant and articles 104, 424 and 425 of the Syrian Code of Criminal

Procedure.

10.

Further, the source submits that Mr. Khartabil’s deprivation of liberty results from

the exercise of his right to free expression, as guaranteed by article 19 of the Universal

Declaration of Human Rights and article 19 of the Covenant. In the source’s view, the

charges against him are indicative that the prosecution against Mr. Khartabil is based on his

role in sharing information through social media, through which he commented on the

current political regime.

11.

The source further submits that Mr. Khartabil has not been guaranteed the

international norms of due process and guarantees to a fair trial during the period of his

deprivation of liberty, in violation of article 10 of the Universal Declaration of Human

Rights and articles 9 (2)–(4) and 14 (3) (b) of the Covenant. Mr. Khartabil was detained

incommunicado for nine months before being brought before a judicial authority for the

first time, which is when he was officially charged. As he was not allowed access to a

lawyer, he was unable to exercise his right to provide a full defence. Following the

expeditious appearance before the military prosecutor, he remains held in pretrial detention

awaiting the deferral of his case before a military field court.

12.

Furthermore, the source fears that, due to the alleged torture that Mr. Khartabil was

submitted to while detained in several secret detention centres of the Military Investigation

Branch, forced confessions may later be used as compelling evidence to convict him, in

breach of article 14 (3) (g) of the Covenant.

13.

The source informs that Decree No. 109 of August 1968, by which Syrian military

field courts are established, in particular article 5, allows the courts to disregard regular

civilian legislation, thereby permitting them to hold trials in secret, with no lawyers present,

and giving the judges wide jurisdiction on sentences. Article 6 states that defendants do not

have the right to appeal their sentences, including death sentences. In support, the source

refers to the report of the Independent International Commission of Inquiry on the Syrian

Arab Republic (A/HRC/24/46), paragraph 43 of which states: “No legal representation,

family visits or appeals were allowed, yet judges may confer capital sentences.” The source

submits that Mr. Khartabil, as a civilian, should not be forced to appear before these

exceptional military courts, as this infringes upon his right to be brought before a

competent, independent and impartial tribunal established by law pursuant to article 10 of

the Universal Declaration of Human Rights and article 14 (1) of the Covenant.

Response from the Government

14.

The Working Group regrets that the Government has not responded to the

allegations it transmitted on 15 January 2015.

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15.

Despite the absence of any information from the Government, the Working Group

considers that it is in the position to render its opinion on the detention of Mr. Khartabil in

conformity with paragraph 16 of its methods of work.

Discussion

Violation of the freedom of expression

16.

The Government chose not to rebut the prima facie reliable allegations submitted by

the source, according to which Mr. Khartabil, an information technology professor, has

been detained for advocating unrestricted use of the Internet and for sharing cell phone-

recorded videos of public demonstrations in the Syrian Arab Republic.

17.

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

or resulting from the use of the Internet, emphasized that the application of any measure of

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

proceeding or 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 (see E/CN.4/2006/7, para. 39).

18.

In the present case, the Government failed to present to the Working Group any

information that would indicate that Mr. Khartabil’s peaceful, non-violent activity

constituted a threat to national security or public order. Nor did the Government present any

facts in support of the charges of “spying for an enemy State”.

19.

Also in its deliberation No. 8, the Working Group noted that the peaceful, non-

violent expression or manifestation of one’s opinion, or dissemination or reception of

information, even through the Internet, if it does not constitute incitement to national, racial

or religious hatred or violence, remains within the boundaries of freedom of expression.

Hence, deprivation of liberty applied on the sole ground of having committed such actions

is arbitrary (Ibid., para. 47).

20.

The Working Group considers that Mr. Khartabil has been deprived of liberty for

having peacefully exercised his right to freedom of expression as guaranteed by article 19

of the Universal Declaration of Human Rights and article 19 of the Covenant. Thus, the

deprivation of his liberty falls within category II.

Violation of the right to a fair trial and to liberty and security

21.

For nine months after his arrest on 15 April 2012, Mr. Khartabil was detained

incommunicado without access to legal assistance, in violation of article 14 of the

Covenant.

22.

Since his arrest, for more than two years, Mr. Khartabil has not been brought before

a judicial authority, which constitutes a grave violation of article 9 (3) of the Covenant,

pursuant to which anyone detained on a criminal charge shall be brought promptly, within a

few days, before a judge or other officer authorized by law to exercise judicial power. A

military prosecutor cannot be considered as a judicial authority for the purpose of article 9

(3) as he or she is not independent, objective and impartial.2

23.

Moreover, Mr. Khartabil has been detained for more than two years without trial.

Such prolonged detention without trial constitutes a grave violation of articles 9 (3) and 14

2 See, for instance, Human Rights Committee, communications No. 1547/2007, Munarbek Torobekov

v. Kyrgyzstan, para. 6.2, and No. 1278/2004, Reshetnikov v. Russian Federation, para. 8.2.

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(3) (c) of the Covenant. Any detainee has a right to trial within a reasonable time or to

release (art. 9 (3)), and any accused person shall have the right to be tried without undue

delay (art. 14 (3) (c)).

24.

In December 2012, a military prosecutor referred the case against Mr. Khartabil,

who is a civilian, to a military field court, which violates his right to be heard by an

independent and impartial tribunal, as provided for in article 10 of the Universal

Declaration of Human Rights and article 14 (1) of the Covenant. In this regard, the

Working Group reiterates its position that military justice should be incompetent to try

civilians (see E/CN.4/1999/63, para. 80).

25.

In its previous opinions concerning the Syrian Arab Republic (see, for instance,

opinions No. 38/2011 and No. 37/2011), the Working Group expressed its concerns

regarding incommunicado detention, denial of access to counsel and the use of military

tribunals. The Working Group also recalls that, in its concluding observations on the Syrian

Arab Republic, the Human Rights Committee remained concerned about numerous

allegations that the procedures of military courts do not respect the guarantees laid down in

article 14 of the Covenant (see CCPR/CO/71/SYR, para. 70).

26.

The Working Group considers that the non-observance of the international norms

relating to the right to a fair trial established in articles 9 and 10 of the Universal

Declaration of Human Rights and articles 9 and 14 of the Covenant in this case is of such

gravity as to give the deprivation of liberty of Mr. Khartabil an arbitrary character. Thus,

the deprivation of liberty of Mr. Khartabil falls within category III.

Disposition

27.

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

The deprivation of liberty of Mr. Khartabil 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 International Covenant on Civil and Political Rights; it falls within

categories II and III of the categories applicable to the cases submitted to the

Working Group for consideration.

28.

Consequent upon the opinion rendered, the Working Group requests the

Government to take the steps necessary to remedy the situation of Mr. Khartabil and bring

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

Human Rights and the Covenant.

29.

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

case, the adequate remedy would be to release Mr. Khartabil and accord him an enforceable

right to compensation in accordance with article 9 (5) of the Covenant.

30.

In accordance with article 33 (a) of its revised 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.

[Adopted on 21 April 2015]