Opinion; Subjects: SUDAN, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.16-18318(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-sixth session, 22-26 August 2016
Opinion No. 34/2016 concerning Adil Bakheit, Al-Shazali
Ibrahim El-Shiekh, Alhassan Kheiri, Arwa Elrabie, Imany
Leyla Raye, Khalafalla Alafif Mukhtar, Khuzaini Elhadi
Rajab, Midhat Afifi Hamdan, Mustafa Adam and Nudaina
Kamal (Sudan)
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 17 June 2016 the
Working Group transmitted a communication to the Government of Sudan concerning Adil
Bakheit, Al-Shazali Ibrahim El-Shiekh, Alhassan Kheiri, Arwa Elrabie, Imany Leyla Raye,
Khalafalla Alafif Mukhtar, Khuzaini Elhadi Rajab, Midhat Afifi Hamdan, Mustafa Adam,
and Nudaina Kamal. 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 or her) (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
United Nations
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General Assembly
Distr.: General
21 October 2016
Original: English
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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 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 rights (category V).
Submissions
Communication from the source
4.
The following individuals were arrested — and some of them remain in detention —
in relation to a workshop organized in 2015 by the Khartoum Centre for Training and
Human Development (TRACKS), a Khartoum-based organization which provides and
facilitates training on a variety of topics, ranging from human rights to information
technology:
(a)
Khalafalla Alafif Mukhtar, born in 1956, a Sudanese human rights defender
and director of TRACKS;
(b)
Arwa Elrabie, administrative manager of TRACKS;
(c)
Nudaina Kamal, staff of TRACKS;
(d)
Imany Leyla Raye, a national of Cameroon, working as a volunteer with
TRACKS;
(e)
Midhat Afifi Hamdan, staff of TRACKS;
(f)
Al-Shazali Ibrahim El-Shiekh, staff of TRACKS;
(g)
Khuzaini Elhadi Rajab, staff of TRACKS;
(h)
Alhassan Kheiri, computer technician at TRACKS;
(i)
Mustafa Adam, director of Al-Zarqa organization for rural development
(ZORD);
(j)
Adil Bakheit, born 8 July 1966, a Sudanese human rights defender, member
of the Board of Trustees of Sudanese Human Rights Monitor (SHRM) — a Khartoum-
based human rights group affiliated with the Confederation of Sudanese Civil Society
Organizations, which documents human rights violations in the Sudan, provides legal
assistance to victims of State-abuse and defends minorities in the Sudan.
5.
On 26 March 2015, the last day of a five-day workshop on social responsibility and
active citizenship, around 10 officers of the National Intelligence and Security Service
(NISS) raided the premises of TRACKS. They searched the premises without presenting a
search warrant and confiscated computers, laptops and office documents.
6.
Messrs. Mukhtar and Bakheit were arrested following the raid and were charged in
March and May 2015, respectively. Both of them faced seven charges under the Criminal
Act of 1991, including joint act in the execution of criminal conspiracy (art. 21), criminal
conspiracy (art. 24), undermining the constitutional system (art. 50), waging war against the
State (art. 51), calling for opposition to public authority by use of violent or criminal force
(art. 63), publication of false news (art. 66) and impersonating a public servant (art. 93). Of
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these seven charges, “undermining the constitutional system” (art. 50) and “waging war
against the State” (art. 51) are considered crimes against the State and punishable by the
death penalty.
7.
Mr. Mukhtar was detained for one day and was released on bail. Mr. Bakheit was
released on bail on 3 June 2015.
8.
On 10 February 2016, Mr. Mukhtar received a telephone call from the NISS
Prosecution Office for Crimes against the State. He was informed by the prosecutor that
after examining the five laptops that were confiscated and the server of the centre for 11
months, they had not found any evidence to support the charges made against him and had
therefore decided to drop the case. The prosecutor also informed him that NISS had two
weeks to appeal the decision of the Prosecution Office. If NISS did not appeal the decision
within the time frame, then Mr. Mukhtar should come to the NISS Prosecution Office and
collect the laptops and the server.
9.
On 29 February 2016, the premises of TRACKS was raided for the second time by
plain-clothed NISS agents who did not produce a search warrant. They confiscated nine
mobile phones, five laptops, as well as publications, flip charts and other office documents.
They also confiscated the passports of staff members — which have not yet been returned
— and referred the staff members to the police station where they were interrogated,
verbally abused, ill-treated and threatened. The interrogations lasted for about three weeks
and were concluded on 20 March 2016.
10.
With regard to the raid of the premises of TRACKS on 29 February 2016 and the
questioning and detention of 10 individuals, including Mr. Mukhtar, a joint urgent appeal
by 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 the situation of human rights
defenders, the Independent Expert on the situation of human rights in the Sudan and the
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment was transmitted to the Government of the Sudan on 5 April 2016. Regrettably,
no response has been received to this joint urgent appeal.
11.
On 19 May 2016, Messrs. Mukhtar and Bakheit were summoned verbally by
telephone. The caller is believed to have been from NISS. They were told to come to court
at 10 a.m. and 11 a.m. respectively on 22 May 2016. Neither of them received a written
summons. After receiving the telephone calls, the two individuals realized that perhaps the
case from 2015 had not been dropped.
12.
On 22 May 2016, Messrs. Mukhtar and Bakheit attended the court hearing at 10 a.m.
They were informed that the trial was postponed to 8 June 2016. Mr. Bakheit left the court
and went home.
13.
Mr. Mukhtar left the court and went to the NISS office to join his colleagues, Mses.
Kamal, Elrabie and Raye, and Messrs. Adam, Hamdan, Rajab, Kheiri and El-Shiekh, as
they had all been summoned to the NISS office on the same day.
14.
The aforementioned individuals arrived at the NISS office in Khartoum at
approximately 11 a.m. They were there for four hours without being asked any questions or
without being informed as to why they had been summoned. At around 3 p.m., the group
was transferred to the NISS Prosecution Office for Crimes against the State located in
Street No. 51 in the Al-Amarat neighbourhood of Khartoum. Upon arrival there, they
realized that they were under arrest. No arrest warrant was presented to them. Ms. Kamal
was released the same day, as she was on maternity leave.
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15.
The arrest and detention of Mr. Mukhtar is believed to be related to his participation
in the workshop on social responsibility that was held in March 2015 at the premises of
TRACKS. No reason was provided for the arrest and detention of the other individuals.
16.
The male detainees were held in an overcrowded cell that was very hot as it had only
basic ventilation and one window. They were allowed to use the bathroom twice a day,
once at 6 a.m. and again at 6 p.m. No one was allowed to use the toilet between those
hours. They urinated in empty water bottles and slept sitting with their backs against the
wall because there are 25 men in a 15 square-metre cell. The authorities provided them with
sandwiches twice a day, but the detainees had to get drinking water, tea and coffee for
themselves. Family visits were severely restricted. Most of the time, family members could
not obtain permission from the chief prosecutor to visit detainees.
17.
Mses. Elrabie and Raye were held under guard in the reception area of the NISS
Prosecution Office during the day and allowed to sleep in one of the offices on the premises
at night.
18.
According to the source, their lawyer was only allowed to speak to the two female
staff members of TRACKS; he did not have access to the male detainees.
19.
Ms. Kamal was released on 22 May 2016; Mses. Elrabie and Raye were released on
30 May 2016; Messrs. Rajab, Kheiri and El-Shiekh were released on 7 June 2016. No
charges were brought against any of them.
20.
The trial concerning Messrs. Mukhtar and Bakheit, which was postponed to 8 June
2016, was again postponed to 18 July 2016.
21.
At the time of submission of the present communication, Messrs. Mukhtar, Adam
and Hamdan were still in detention. None of them has been informed of the grounds for
their detention. Mr. Mukhtar’s health is reported to be deteriorating rapidly owing to a heart
condition.
22.
The source submits that the continued deprivation of liberty of Mr. Mukhtar is
arbitrary and falls under category II of the arbitrary detention categories referred to by the
Working Group when considering cases submitted to it. The source argues that the arrest
and deprivation of liberty of Mr. Mukhtar are the result of his exercising his rights to
freedom of expression and freedom of peaceful assembly and of association guaranteed by
articles 19 and 20 of the Universal Declaration of Human Rights and articles 19 and 21 of
the International Covenant on Civil and Political Rights. More specifically, the source
submits that the arrest and deprivation of liberty of Mr. Mukhtar relate to his work at
TRACKS and, in particular, the workshop on social responsibility and active citizenship
that was held in March 2015.
23.
The source also submits that the continued deprivation of liberty of Messrs. Adam
and Hamdan, the deprivation of liberty of Ms. Elrabie and Ms. Raye between 22 and 30
May 2016, and the deprivation of liberty of Messrs. Rajab, Kheiri and El-Shiekh between
22 May and 7 June 2016 are arbitrary and fall under category I of the arbitrary detention
categories referred to by the Working Group when considering cases submitted to it. The
source is of the view that the above-mentioned individuals are being or were detained
without any legal basis, in violation of article 9 of the International Covenant on Civil and
Political Rights.
Response from the Government
24.
On 17 June 2016, the Working Group transmitted the source’s allegations to the
Government through its regular communication procedure. The Working Group requested
the Government to provide detailed information by 16 August 2016 about the current
situation of the above-mentioned individuals and any comments on the source’s allegations.
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The Working Group also requested the Government to clarify the factual and legal grounds
justifying the detention of the above-mentioned individuals and to provide details regarding
the conformity of the legal proceedings with international human rights treaties to which
the Sudan is a party.
25.
The Working Group regrets that it did not receive a reply from the Government, nor
did the Government request an extension of the time limit for its reply, as provided for in
paragraph 16 of the Working Group’s methods of work. Further to paragraph 15 of its
methods of work, in the absence of a reply from the Government, the Working Group may
render an opinion on the basis of information obtained from the source.
Discussion
26.
In its jurisprudence, the Working Group has established the ways in which it deals
with evidentiary issues.1 If the source has established a prima facie case for breach of
international requirements constituting arbitrary detention, the burden of proof rests upon
the Government if it wishes to refute the allegations. In the present case, the Government
has not rebutted the prima facie credibility of the allegations made by the source. Hence,
the Working Group accepts the information submitted by the source as reliable.
Arrest without warrant
27.
The Working Group notes that Al-Shazali Ibrahim El-Shiekh, Alhassan Kheiri,
Arwa Elrabie, Imany Leyla Raye, Khalafalla Alafif Mukhtar, Khuzaini Elhadi Rajab,
Midhat Afifi Hamdan, Mustafa Adam and Nudaina Kamal were arrested on 22 May 2016.
An arrest warrant was not presented to them and they were not informed of the reasons for
their arrest.
28.
In addition to being bound by article 9 of the Universal Declaration of Human
Rights, which proscribes arbitrary arrest and detention, Sudan has also ratified the
International Covenant on Civil and Political Rights. Pursuant to article 9 (2) of the
Covenant, States parties agree that anyone who is arrested shall be informed, at the time of
arrest, of the reasons for his or her arrest. Messrs. El-Shiekh, Kheiri, Mukhtar, Rajab,
Hamdan and Adam, and Mses. Elrabie, Raye and Kamal were not informed, at the time of
their arrest, of the reasons for their arrest, therefore, in the Working Group’s view, Sudan
has breached its obligations under article 9 (2) of the Covenant.
29.
Owing to the fact that they were not informed of the reasons for their arrest and no
arrest warrant was presented to them at the time of their arrest, the Working Group is of the
view that the arrest of the nine aforementioned individuals on 22 May 2016 is a violation
by the Sudan of its obligations under the Covenant.
30.
For those reasons, the Working Group considers that the deprivation of liberty of the
nine aforementioned individuals is arbitrary and falls under category I of the arbitrary
detention categories to which it refers when considering cases submitted to it.
Detention without charge
31.
After being arrested without a warrant, the nine individuals were detained for
various lengths of time without being informed of the charges against them. The Working
Group considers that, as at June 2016, Messrs. Adam, Hamdan and Mukhtar were still in
detention without charge, since 22 May 2016; that Mses. Elrabie and Raye were detained
without charge between 22 and 30 May 2016; and that Messrs. Rajab, Kheiri and El-Shiekh
were detained without charge between 22 May and 7 June 2016.
1 See, for example, A/HRC/19/57, para. 68.
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32.
The International Covenant on Civil and Political Rights and the Universal
Declaration of Human Rights specifically state that no one shall be deprived of their liberty
in an arbitrary manner. Article 9 (2) of the Covenant states that anyone who is arrested shall
be promptly informed, at the time of arrest, of the reasons for his arrest and shall be
promptly informed of any charges against him. The Working Group emphasizes that
individuals who are not informed of the charges against them are denied the opportunity to
defend themselves.
33.
In the Working Group’s view, the detention without charge of the nine
aforementioned individuals by the authorities of the Sudan constitutes a violation by the
Sudan of its obligations under the Covenant.
34.
Such detention, combined with the above-mentioned arrest conditions, falls under
category I of the arbitrary detention categories referred to by the Working Group when
considering cases submitted to it.
Detention resulting from exercise of the rights to freedom of expression and assembly
35.
The Working Group considers that the nine individuals were arrested by the
Sudanese authorities because of their involvement in organizing training on social
responsibility and active citizenship.
36.
Article 19 (2) of the International Covenant on Civil and Political Rights imposes on
States parties the responsibility of guaranteeing that everyone shall have the right to
freedom of expression and that this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of his choice. Article 19 of the
Universal Declaration of Human Rights imposes similar obligations.
37.
Arresting and detaining the individuals concerned for exercising their lawful rights
under article 19 of the Covenant and article 19 of the Declaration constitute a severe
violation by the Sudan of its obligations under the treaty and under customary law and fall
under category II of the arbitrary detention categories referred to by the Working Group
when considering cases submitted to it.
38.
The Working Group confirms that, in the light of no apparent legal justification for
arresting the individuals concerned without a warrant and detaining them without charge,
the Sudan has violated article 9 of the International Covenant on Civil and Political Rights
and article 9 of the Universal Declaration of Human Rights, both of which require that the
Sudan ensure that no one is subjected to arbitrary arrest or detention. In this regard, the
Working Group considers that the continued detention of Khalafalla Alafif Mukhtar is
arbitrary and falls under category II of the arbitrary detention categories referred to by the
Working Group when considering cases submitted to it.
39.
The Working Group notes that the above-mentioned arrests and detentions were not
the product of isolated incidents of arbitrary deprivation of liberty concerning the victims in
this case. It remains concerned about the lack of response on the part of the Sudan with
regard to the raid of the office of TRACKS on 29 February 2016 and the questioning and
detention of 10 individuals, and the joint urgent appeal transmitted to the Sudan by five
special procedure mandate holders of the Human Rights Council.
Disposition
40.
In the light of the foregoing, the Working Group renders the following opinion:
(a)
The arrest of the nine individuals without an arrest warrant and
without informing them of the reasons for their arrest is a violation of the
international norms against the arbitrary deprivation of liberty, including article 9 of
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the Universal Declaration of Human Rights and articles 9 (1) and 9 (2) of the
International Covenant on Civil and Political Rights. Such deprivation of liberty is
arbitrary and falls under category I of the arbitrary detention categories referred to
by the Working Group when considering cases submitted to it;
(b)
The detention without charge of the individuals concerned is also a
violation of the international norms against the arbitrary deprivation of liberty,
including article 9 of the Universal Declaration of Human Rights and articles 9 (1)
and 9 (2) of the International Covenant on Civil and Political Rights. Such detention
is arbitrary and falls under category I of the arbitrary detention categories referred to
by the Working Group when considering cases submitted to it;
(c)
The detention of the individuals concerned owing to their lawful
exercise of the right to freedom of expression of opinion is a violation of article 19
of the Universal Declaration of Human Rights and article 19 of the International
Covenant on Civil and Political Rights. Such detention is arbitrary and falls under
category II of the arbitrary detention categories referred to by the Working Group
when considering cases submitted to it.
41.
Consequent upon the opinion rendered, the Working Group requests the
Government of the Sudan to take the steps necessary to remedy the situation without delay
and to bring it into conformity with the standards and principles enshrined in the Universal
Declaration of Human Rights, the International Covenant on Civil and Political Rights and
all other relevant international norms against the arbitrary deprivation of liberty.
42.
The Working Group believes that, taking into account all the circumstances of the
case, the adequate remedy would be to immediately release the three individuals remaining
in detention and to provide them and the other individuals who were detained with
reparation for the harm suffered as a result of their arbitrary detention.
Follow-up procedure
43.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether the individuals in detention have been released and, if so, on what
date;
(b)
Whether compensation or other reparations have been provided to all the
individuals named in this case;
(c)
Whether an investigation has been conducted into the violation of the rights
of the individuals named in this case and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of the Government with its international obligations, in
line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
44.
The Government is invited to inform the Working Group of any difficulties which it
may have encountered in implementing the recommendations made in the present opinion,
and whether further technical assistance is required, for example, through a visit by the
Working Group.
45.
The Working Group requests the source and the Government to provide the
requested information within six months of the date of transmission of the present opinion.
However, the Working Group reserves the right to undertake its own action in follow-up to
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the present opinion if new concerns relating to the case are brought to its attention. Such
action would enable the Working Group to inform the Human Rights Council of the
progress made in implementing its recommendations, as well as of any failure to take
action.
46.
The Working Group recalls the Human Rights Council’s call for all States to
cooperate with the Working Group, to take account of its views and, where necessary, to
take appropriate steps to remedy the situation of persons arbitrarily deprived of their liberty,
and to inform the Working Group of the steps they have taken.2
[Adopted on 25 August 2016]
2 See Human Rights Council resolution 24/7, para. 3.